ULH 8-K
Universal Logistics Holdings, Inc. (ULH)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Securities registered pursuant to Section 12(b) of the Act:
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Trading |
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into Material Definitive Agreement.
UDOT CTL-Funding, LLC (the “Borrower”), a single purpose entity and subsidiary of Universal Logistics Holdings, Inc. (“Universal”), completed a credit tenant lease financing transaction on October 22, 2025. Specifically, the Borrower issued a senior secured promissory note (the “Note”) in the principal amount of approximately $195.9 million to Wilmington Trust, National Association, as trustee of the Ford (Stanton, TN) Lease-Backed Pass-Through Trust (the “Trustee”), under a note purchase agreement dated October 22, 2025 (the “NPA”). The Note bears interest at a fixed rate of 6.84% per annum and requires monthly payments of principal and interest, with the full balance due at maturity on November 15, 2034.
The Note is secured by a leasehold deed of trust, security agreement, fixture filing, and assignment of leases and rents encumbering the Borrower’s subleasehold interest in the financed property under a composite sublease agreement with an investment-grade credit tenant. The composite sublease agreement has been collaterally assigned to the Trustee pursuant to the financing structure. The deed of trust and related security documents contain customary covenants, representations, warranties, and events of default for transactions of this nature.
Under the terms of the financing, the Borrower’s debt-service obligations under the Note are intended to be funded from rent payments made by the credit tenant under the composite sublease agreement. If the credit tenant exercises its option to prepay all rent due under the composite sublease agreement, the Borrower or Universal is required to prepay the shortfall between the credit tenant’s prepayment amount and the outstanding principal balance on the Note, along with interest and a premium equal to a customary make–whole amount. The Note may otherwise be prepaid only in accordance with customary prepayment and yield-maintenance provisions.
In connection with the financing, Universal executed an indemnity and guaranty agreement (the “Limited Guaranty”) in favor of the Trustee, pursuant to which Universal agreed to provide customary non-recourse carve-out and indemnity obligations relating to certain actions of the borrower and its affiliates. The Limited Guaranty is limited to specific enumerated obligations, including payment of the shortfall and make-whole amounts that are due upon occurrence of the credit tenant’s prepayment of rent under the composite sublease agreement, acts of bad faith, misapplication of rents, and environmental matters. Universal and the Borrower also executed a hazardous material indemnity agreement (the “Environmental Indemnity”) in favor of the Trustee, under which Universal and the Borrower agreed to indemnify the Trustee for certain environmental liabilities relating to the secured property. The Borrower’s obligations under the Note are non-recourse to the Borrower, Universal and its affiliates, except for the obligations under the Limited Guaranty and Environmental Indemnity. If the credit tenant fails to pay rent under the composite sublease agreement, neither the Borrower nor Universal is obligated to advance funds or otherwise cure such non-payment, and the Note holder’s sole recourse is to the collateral securing the Note.
The foregoing summaries of the NPA, Note, Limited Guaranty and Environmental Indemnity do not purport to be complete and are qualified in their entirety by reference to the full text of each such agreement, copies of which are attached as Exhibit 10.1 to through 10.4 and incorporated by reference in this Current Report.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth under Item 1.01 of this Current Report on Form 8-K is hereby incorporated by reference into this Item 2.03.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On October 22, 2025, Universal’s board of directors appointed one of its members, Marcus D. Hudson, as a member of its audit committee, effective immediately.
Mr. Hudson qualifies as an “independent director” under the applicable listing standards of The Nasdaq Stock Market and the independence requirements of Rule 10A-3(b)(1) under the Securities Exchange Act of 1934. The Board of Directors has also determined that Mr. Hudson satisfies the financial sophistication and audit committee financial expert requirements of the Nasdaq listing rules and Item 407(d)(5)(ii) of Regulation S-K.
There are no arrangements or understandings between Mr. Hudson and any other person pursuant to which he was selected as a committee member. Mr. Hudson has no family relationships with any director or executive officer of the Company and has not been a participant in any transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K.
Mr. Hudson will receive the standard compensation provided to non-employee directors of the Company for service on the board of directors and audit committee, as described in the Company’s most recent proxy statement filed with the Securities and Exchange Commission.
Item 9.01 Financial Statements and Exhibits.
10.1 |
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10.2 |
Promissory Note dated October 22, 2025 of UDOT-CTL-Fund, LLC |
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10.3 |
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10.4 |
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104 |
Cover Page Interactive Data File (formatted as Inline XBRL) |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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UNIVERSAL LOGISTICS HOLDINGS, INC. |
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Date: |
October 27, 2025 |
By: |
/s/ Steven Fitzpatrick |
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Steven Fitzpatrick |
Exhibit 10.1
Execution Version
UDOT CTL-Funding, LLC
$195,934,487.65 6.84% Senior Secured Note due November 15, 2034
NOTE PURCHASE AGREEMENT
Dated as of October 22, 2025
UDOT CTL-Funding, LLC
12755 East 9 Mile Road
Warren, Michigan 48089
NOTE PURCHASE AGREEMENT
Re: 6.84% Senior Secured Note due November 15, 2034
Dated as of
October 22, 2025
Wilmington Trust, National Association,
as Trustee of the Ford (Stanton, TN)
Lease-Backed Pass-Through Trust
One Light Street, 15th Floor
Mail Code: MD2-L140
Baltimore, Maryland 21202
Attention: Corporate Trust Department
UDOT CTL-Funding, LLC, a limited liability company organized under the laws of the State of Tennessee (the “Company”), agrees with you as follows:
UDOT CTL-Funding, LLC Note Purchase Agreement
-2-
UDOT CTL-Funding, LLC Note Purchase Agreement
Your obligation to purchase and pay for the Note shall be subject to the following conditions precedent:
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UDOT CTL-Funding, LLC Note Purchase Agreement
-4-
UDOT CTL-Funding, LLC Note Purchase Agreement
UDOT CTL-Funding, LLC
12755 E. Nine Mile Road
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UDOT CTL-Funding, LLC Note Purchase Agreement
Warren, Michigan 48089
Attention: Jude M. Beres
Email: [email protected]
With a copy to:
Vistula PLC
100 Maple Park Boulevard, Suite 110
Saint Clair Shores, Michigan 48089
Attention: Edwin J. Lukas
Email: [email protected]
or to such other address as you or the Company shall designate by written notice to the other.
-6-
UDOT CTL-Funding, LLC Note Purchase Agreement
-7-
UDOT CTL-Funding, LLC Note Purchase Agreement
(a) Notwithstanding anything contained herein, it is expressly understood and agreed by the parties hereto that Purchaser is acting as a trustee and whenever any consent, approval, discretion, calculation or other action of the Purchaser is contemplated hereby, Purchaser may act in accordance with the instructions of the appropriate percentage of certificate holders (pursuant to the Trust Agreement), or otherwise in accordance with the terms and provisions of the documents creating and relative to the administration of the Trust, and not on its own discretion.
(b) By accepting or approving anything required to be observed, performed or fulfilled by the Company or to be given to the Trustee pursuant to this Agreement, including, without limitation, any certificate, balance sheet, statement of profit and loss or other financial statement, survey, receipt, appraisal or insurance policy, the Trustee shall not be deemed to have warranted or represented the sufficiency, legality, effectiveness or legal effect of the same, or of any term, provision or condition thereof and any such acceptance or approval thereof shall not be or constitute any warranty or representation with respect thereto by the Trustee.
(c) The Trustee shall not be liable for any act or omission by it pursuant to the provisions of this Agreement, its gross negligence or willful misconduct (or ordinary negligence in connection with the handing of funds). The Trustee shall not incur any liability to the Company or any other party in connection with the acts or omissions of the Trustee in reliance upon any certificate or other paper believed by the Trustee to be genuine or with respect to any other thing which the Trustee may do or refrain from doing, unless such act or omission amounts to gross negligence or willful misconduct (or ordinary negligence in connection with the handling of funds) by the Trustee. In connection with the performance of its duties pursuant to this Agreement, the Trustee may consult with counsel of its own selection, and anything which the Trustee may do or refrain from doing, in good faith, in reliance upon the opinion of such counsel shall be full justification and protection to the Trustee.
(a) if the Note is accelerated as a result of an Event of Default (including, without limitation, an Event of Default described in Section 5.1(k) of the Deed of Trust), the principal, accrued unpaid interest and Make-Whole Amount payable on the Note so accelerated shall equal the principal, accrued unpaid interest and Make-Whole Amount
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UDOT CTL-Funding, LLC Note Purchase Agreement
payable in connection with an optional prepayment of the Note under Section 2.12(b) or Section 2.13(c) of the Deed of Trust;
(b) any payment on the Note after an acceleration as a result of an Event of Default (including, without limitation, an Event of Default described in Section 5.1(k) of the Deed of Trust), shall be treated as an optional prepayment triggering the obligation to pay the Make-Whole Amount;
(c) the Make-Whole Amount is liquidated damages and a reasonable approximation of the damages to be suffered by Purchaser in the event of payments prior to the original scheduled payments set forth in the payment schedule set forth on the Note;
(d) the Company hereby waives any provision of any present or future statute, court ruling or law that may prohibit the collection of the Make-Whole Amount in connection with an acceleration as a result of an Event of Default;
(e) the Purchaser shall have the right to rescind any acceleration of the Note including, without limitation any acceleration caused by an Event of Default described under Section 5.1(k) of the Deed of Trust;
(f) the Make-Whole Amount is reasonable and the product of an arm’s length negotiation;
(g) the Make-Whole Amount shall be payable notwithstanding the then prevailing market rates at the time of calculation or payment;
(h) there has been a course of conduct between the Company and the Purchaser and such parties gave specific consideration for the agreement to pay the Make-Whole Amount;
(i) the Company’s agreement to pay the Make-Whole Amount to the Purchaser was a material inducement for the Purchaser to purchase the Note; and
(j) the Make-Whole Amount is consideration for the Note and part of an inducement to the Purchaser to purchase the Note.
For the sake of clarity, no Make-Whole Amount shall be due in connection with any prepayment of the Note resulting from a casualty or condemnation event.
SECTION 5. Confidential Information.
For the purposes of this Section 5, “Confidential Information” means information delivered to the Purchaser or any Beneficial Holder (as defined below) by or on behalf of the Company or any Affiliate of the Company or the Tenant or any Affiliate of the Tenant (herein, the “Disclosing Person”) in connection with the transactions contemplated by or otherwise pursuant to the Operative Agreements that is (i) proprietary in nature and that was clearly marked or labeled or
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UDOT CTL-Funding, LLC Note Purchase Agreement
otherwise adequately identified when received by the Purchaser or such Beneficial Holder as being confidential information of such Disclosing Person, or (ii) information prepared by Tenant or an Affiliate of Tenant with respect to the financial condition of Tenant and/or Tenant’s Affiliates, provided that Confidential Information does not include information that (a) was publicly known or otherwise known to the Purchaser or such Beneficial Holder prior to the time of such disclosure, (b) subsequently becomes publicly known through no act or omission by the Purchaser or such Beneficial Holder or any Person acting on the Purchaser’s or such Beneficial Holder’s behalf, (c) otherwise becomes known to such Purchaser or such Beneficial Holder other than through disclosure by such Disclosing Person or (d) constitutes financial statements delivered to the Purchaser or such Beneficial Holder under the Composite Sublease that are otherwise publicly available. The Purchaser will maintain the confidentiality of such Confidential Information in accordance with procedures adopted by the Purchaser to protect confidential information of third parties delivered to the Purchaser, provided that the Purchaser may deliver or disclose Confidential Information to (i) its affiliates or its or its affiliates’ respective directors, officers, employees, agents, attorneys, related funds, investors, and trustees (to the extent such disclosure reasonably relates to the administration of the investment represented by the Note), (ii) its auditors, financial advisors and other professional advisors who shall be directed to hold confidential the Confidential Information substantially in accordance with this Section 5, (iii) any holder of a Trust Certificate or of a participation interest or other beneficial interest in the Operative Agreements (a “Beneficial Holder”) that shall be directed to hold confidential the Confidential Information substantially in accordance with this Section 5, (iv) any person to which the Purchaser or such Beneficial Holder sells or offers to sell the Note or any part thereof or any participation or interest therein (if such Person has agreed in writing prior to its receipt of such Confidential Information to be bound by this Section 5), (v) any Person from which the Purchaser or such Beneficial Holder offers to purchase any Security of the Company (if such Person has agreed in writing prior to its receipt of such Confidential Information to be bound by this Section 5), (vi) any federal or state regulatory authority having jurisdiction over the Purchaser or such Beneficial Holder, (vii) the National Association of Insurance Commissioners or the Securities Valuation Office of the National Association of Insurance Commissioners or, in each case, any similar organization, or any nationally recognized rating agency that requires access to information about the Purchaser’s or such Beneficial Holder’s investment portfolio, or (viii) any other Person to which such delivery or disclosure may be necessary or appropriate (w) to effect compliance with any law, rule, regulation or order applicable to the Purchaser or such Beneficial Holder, (x) in response to any subpoena or other legal process, (y) in connection with any litigation to which the Purchaser or such Beneficial Holder is a party or (z) if an Event of Default has occurred and is continuing, to the extent the Purchaser or such Beneficial Holder may reasonably determine such delivery and disclosure to be necessary or appropriate in the enforcement or for the protection of the rights and remedies under the Note or any beneficial interest therein, or under any other Operative Agreements.
[Signature Pages Follow]
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UDOT CTL-Funding, LLC Note Purchase Agreement
The execution hereof by you shall constitute a contract between us for the uses and purposes hereinabove set forth, and this Note Purchase Agreement may be executed in any number of counterparts, each executed counterpart constituting an original but all together only one agreement.
UDOT CTL-Funding, LLC, a Tennessee limited liability company
By: |
/s/ Jude M. Beres |
Name: |
Jude M. Beres |
Title: |
President |
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UDOT CTL-Funding, LLC Note Purchase Agreement
The foregoing Agreement is hereby confirmed and accepted.
Wilmington Trust, National Association, as Trustee
By: |
/s/ Sarah A. Stokes |
Name: |
Sarah A. Stokes |
Title: |
Vice President |
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UDOT CTL-Funding, LLC, a Tennessee limited liability company
6.84% Senior Secured Note, Due November 15, 2034
No. A-1 October 22, 2025
$195,934,487.65
UDOT CTL-Funding, LLC, a Tennessee limited liability company (the “Company”), for value received, hereby promises to pay to or to the order of Wilmington Trust, National Association, as Trustee or registered assigns, the original principal amount of One Hundred Ninety-Five Million Nine Hundred Thirty-Four Thousand Four Hundred Eighty-Seven and 65/100 dollars ($195,934,487.65), together with interest from the date hereof until maturity at the rate of 6.84% per annum (computed on the basis of a 360-day year of 12 consecutive 30-day months) in installments as provided in the amortization schedule attached hereto as Annex I.
The Company further promises to pay interest at the rate of 11.84% (the “Default Rate”) per annum (i) on each overdue installment of principal, premium, if any, and (to the extent legally enforceable) upon each overdue installment of interest in each case from and after the due date of each such installment, whether by acceleration or otherwise, until paid and (ii) during the continuance of an Event of Default, on the unpaid balance hereof and on any overdue payment of any Make-Whole Amount. Payments of principal, premium, if any, and interest shall be made in such coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts by check mailed and addressed to the holder hereof at the address set forth on page 1 of the Note Purchase Agreement described below, or, at the option of the holder hereof, in such manner and at such other place in the United States of America as the holder hereof shall have designated to the Company in writing. If any scheduled payment date on this Note is not a Business Day, the applicable payment shall be due and payable on the first Business Day immediately following such scheduled payment date.
This Note is issued under and pursuant to the terms and provisions of the Note Purchase Agreement dated as of the date hereof (the “Note Purchase Agreement”) entered into by the Company with Wilmington Trust, National Association, as Trustee (the “Purchaser”) and secured by the Leasehold Deed of Trust, Security Agreement, Assignment of Leases and Rents and Fixture Filing Statement dated as of the date hereof (the “Deed of Trust”) from the Company for the benefit of the Purchaser in respect of the Granted Property described therein and the Composite Sublease Agreement dated as of August 12, 2024 between Universal Development of Tennessee, LLC, a Tennessee limited liability company (“UDOT”) and Ford Motor Company, a Delaware corporation (the “Tenant”), as assigned by that certain Assignment of Composite Sublease Agreement dated as of October 22, 2025, from UDOT to the Company (collectively, as may be heretofore or hereafter otherwise amended, modified or supplemented, the “Composite Sublease”) and the Facility Lease Agreement, dated as of August 12, 2024, between the State of Tennessee, acting by and through the Megasite Authority of West Tennessee, as lessor (the “Authority”) and Tenant, as lessee (as may be heretofore or hereafter otherwise amended, modified or supplemented, the “Prime Lease”). This Note and the holder hereof are entitled to all the benefits provided for by the Note Purchase Agreement, the Deed of Trust and the other Operative
EXHIBIT A
(to Note Purchase Agreement)
Agreements, to which Note Purchase Agreement, Deed of Trust and Operative Agreements reference is hereby made for the statement thereof, including a description of the Granted Property, the nature and extent of the security and the rights of the holder of the Note and of the Company in respect thereof. Capitalized terms not otherwise defined herein shall have the respective meanings ascribed thereto in the Deed of Trust.
Interest on the indebtedness hereunder shall not exceed the maximum amount of nonusurious interest that may be contracted for, taken, reserved, charged, or received under law; any interest in excess of that maximum amount shall be credited on the principal of the indebtedness hereunder or, if that has been paid, refunded. On any acceleration or required or permitted prepayment, any such excess shall be cancelled automatically as of the acceleration or prepayment or, if already paid, credited on the principal of the indebtedness hereunder or, if the principal of the debt has been paid, refunded. This provision overrides other provisions in this Note and all other instruments concerning the Indebtedness Hereby Secured.
If not sooner due and payable pursuant to the terms of the Deed of Trust, the entire indebtedness evidenced by this Note shall be due and payable on November 15, 2034.
This Note may be declared due prior to November 15, 2034, voluntary prepayments may be made thereon by the Company and certain prepayments are required to be made thereon, all in the events, on the terms and in the manner and amounts as provided in the Deed of Trust.
[Signatures on Following Page]
A-2
This Note shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflicts of law provisions.
UDOT CTL-Funding, LLC, a Tennessee limited liability company
By: |
/s/ Jude M. Beres |
Name: |
Jude M. Beres |
Title: |
President |
A-1
ANNEX I
AMORTIZATION SCHEDULE
ANNEX I
(to Note)
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DS Payment Date |
DS Payment |
Principal |
Interest |
End Balance |
6.84% |
$195,934,487.65 |
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11/15/25 |
2,418,389.61 |
(1,301,563.03) |
(1,116,826.58) |
194,632,924.62 |
12/15/25 |
2,418,389.61 |
(1,308,981.94) |
(1,109,407.67) |
193,323,942.68 |
1/15/26 |
2,418,389.61 |
(1,316,443.14) |
(1,101,946.47) |
192,007,499.54 |
2/15/26 |
2,418,389.61 |
(1,323,946.86) |
(1,094,442.75) |
190,683,552.68 |
3/15/26 |
2,418,389.61 |
(1,331,493.36) |
(1,086,896.25) |
189,352,059.32 |
4/15/26 |
2,418,389.61 |
(1,339,082.87) |
(1,079,306.74) |
188,012,976.45 |
5/15/26 |
2,418,389.61 |
(1,346,715.64) |
(1,071,673.97) |
186,666,260.81 |
6/15/26 |
2,418,389.61 |
(1,354,391.92) |
(1,063,997.69) |
185,311,868.89 |
7/15/26 |
2,418,389.61 |
(1,362,111.96) |
(1,056,277.65) |
183,949,756.93 |
8/15/26 |
2,418,389.61 |
(1,369,876.00) |
(1,048,513.61) |
182,579,880.93 |
9/15/26 |
2,418,389.61 |
(1,377,684.29) |
(1,040,705.32) |
181,202,196.64 |
10/15/26 |
2,418,389.61 |
(1,385,537.09) |
(1,032,852.52) |
179,816,659.55 |
11/15/26 |
2,418,389.61 |
(1,393,434.65) |
(1,024,954.96) |
178,423,224.90 |
12/15/26 |
2,418,389.61 |
(1,401,377.23) |
(1,017,012.38) |
177,021,847.67 |
1/15/27 |
2,418,389.61 |
(1,409,365.08) |
(1,009,024.53) |
175,612,482.59 |
2/15/27 |
2,418,389.61 |
(1,417,398.46) |
(1,000,991.15) |
174,195,084.13 |
3/15/27 |
2,418,389.61 |
(1,425,477.63) |
(992,911.98) |
172,769,606.50 |
4/15/27 |
2,418,389.61 |
(1,433,602.85) |
(984,786.76) |
171,336,003.65 |
5/15/27 |
2,418,389.61 |
(1,441,774.39) |
(976,615.22) |
169,894,229.26 |
6/15/27 |
2,418,389.61 |
(1,449,992.50) |
(968,397.11) |
168,444,236.76 |
7/15/27 |
2,418,389.61 |
(1,458,257.46) |
(960,132.15) |
166,985,979.30 |
8/15/27 |
2,418,389.61 |
(1,466,569.53) |
(951,820.08) |
165,519,409.77 |
9/15/27 |
2,418,389.61 |
(1,474,928.97) |
(943,460.64) |
164,044,480.80 |
10/15/27 |
2,418,389.61 |
(1,483,336.07) |
(935,053.54) |
162,561,144.73 |
11/15/27 |
2,418,389.61 |
(1,491,791.09) |
(926,598.52) |
161,069,353.64 |
12/15/27 |
2,418,389.61 |
(1,500,294.29) |
(918,095.32) |
159,569,059.35 |
1/15/28 |
2,418,389.61 |
(1,508,845.97) |
(909,543.64) |
158,060,213.38 |
2/15/28 |
2,418,389.61 |
(1,517,446.39) |
(900,943.22) |
156,542,766.99 |
3/15/28 |
2,418,389.61 |
(1,526,095.84) |
(892,293.77) |
155,016,671.15 |
4/15/28 |
2,418,389.61 |
(1,534,794.58) |
(883,595.03) |
153,481,876.57 |
5/15/28 |
2,418,389.61 |
(1,543,542.91) |
(874,846.70) |
151,938,333.66 |
6/15/28 |
2,418,389.61 |
(1,552,341.11) |
(866,048.50) |
150,385,992.55 |
7/15/28 |
2,418,389.61 |
(1,561,189.45) |
(857,200.16) |
148,824,803.10 |
8/15/28 |
2,418,389.61 |
(1,570,088.23) |
(848,301.38) |
147,254,714.87 |
9/15/28 |
2,418,389.61 |
(1,579,037.74) |
(839,351.87) |
145,675,677.13 |
10/15/28 |
2,418,389.61 |
(1,588,038.25) |
(830,351.36) |
144,087,638.88 |
11/15/28 |
2,418,389.61 |
(1,597,090.07) |
(821,299.54) |
142,490,548.81 |
12/15/28 |
2,418,389.61 |
(1,606,193.48) |
(812,196.13) |
140,884,355.33 |
1/15/29 |
2,418,389.61 |
(1,615,348.78) |
(803,040.83) |
139,269,006.55 |
2/15/29 |
2,418,389.61 |
(1,624,556.27) |
(793,833.34) |
137,644,450.28 |
3/15/29 |
2,418,389.61 |
(1,633,816.24) |
(784,573.37) |
136,010,634.04 |
4/15/29 |
2,418,389.61 |
(1,643,129.00) |
(775,260.61) |
134,367,505.04 |
5/15/29 |
2,418,389.61 |
(1,652,494.83) |
(765,894.78) |
132,715,010.21 |
A-2
6/15/29 |
2,418,389.61 |
(1,661,914.05) |
(756,475.56) |
131,053,096.16 |
7/15/29 |
2,418,389.61 |
(1,671,386.96) |
(747,002.65) |
129,381,709.20 |
8/15/29 |
2,418,389.61 |
(1,680,913.87) |
(737,475.74) |
127,700,795.33 |
9/15/29 |
2,418,389.61 |
(1,690,495.08) |
(727,894.53) |
126,010,300.25 |
10/15/29 |
2,418,389.61 |
(1,700,130.90) |
(718,258.71) |
124,310,169.35 |
11/15/29 |
2,418,389.61 |
(1,709,821.64) |
(708,567.97) |
122,600,347.71 |
12/15/29 |
2,418,389.61 |
(1,719,567.63) |
(698,821.98) |
120,880,780.08 |
1/15/30 |
2,418,389.61 |
(1,729,369.16) |
(689,020.45) |
119,151,410.92 |
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A-3
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A-4
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to you, as of the date hereof, as follows:
1. Subsidiaries. The Company has no Subsidiaries.
2. Organization and Authority. (a) The Company is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Tennessee. The Company has all requisite power and authority to enter into or perform its obligations under the Operative Agreements to which it is a party and the Note and to incur the indebtedness evidenced thereby.
(a) The Company is a single purpose entity organized solely for the purpose of acquiring, owning, financing, selling, developing and leasing the Granted Property, as set forth in the Operative Agreements.
(b) The Company has all requisite power and authority and all necessary licenses and permits to own and operate its properties and to carry on its business as now conducted and as presently proposed to be conducted.
(c) Except in connection with the maintenance of the Company’s formation documents and good standing in the Company’s state of formation, the Company is not transacting business in any jurisdiction other than Tennessee.
3. Indebtedness. The Company has no indebtedness, guaranties, liabilities or other obligations other than pursuant to the Operative Agreements and as otherwise permitted in the Deed of Trust.
4. Full Disclosure. None of the written statements furnished to you by the Company or any person, agent or other entity authorized or employed by the Company as financial advisor, agent, broker, dealer or otherwise in connection with the offering or sale of the Note and furnished by the Company or any such person, agent or other entity to you expressly on behalf of the Company in connection with the negotiation of the transactions contemplated by the Note Purchase Agreement, taken as a whole, contain any untrue statement of a material fact or omit a material fact necessary to make the statements contained therein or herein not materially misleading in light of the circumstances under which they were made, except that the foregoing representation and warranty in this sentence is given to the knowledge of the Company to the extent that it pertains to the Tenant or the Granted Property. Except as has been disclosed to you in writing, there is no fact peculiar to the Company which is known to the Company which could reasonably be expected to have a Material Adverse Effect. For purposes of this Agreement, “Material Adverse Effect” means a material adverse effect on the properties, business, operations, profits or financial condition of the Company, taken as a whole, or the ability of the Company to perform its obligations under the Operative Agreements to which it is a party or the Note.
5. Pending Litigation. There are no proceedings pending, or to the knowledge of the Company, threatened against or affecting the Company in any court or before any governmental authority or arbitration board or tribunal that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect. The Company is not in default with
EXHIBIT B
(to Note Purchase Agreement)
respect to any order of any court or governmental authority or arbitration board or tribunal which default or violation, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
6. Title to Properties. The Company has good and marketable title in the leasehold estate to the Granted Property subject to Permitted Encumbrances and the matters set forth in the commitment for the Title Insurance Policy.
7. Sale is Legal and Authorized. The sale of the Note and compliance by the Company with all of the provisions of the Operative Agreements to which it is a party and the Note:
(a) are within the limited liability company powers of the Company;
(b) will not violate any provisions of any law or any order of any court or governmental authority or agency applicable to the Company and will not conflict with or result in any breach of any of the terms, conditions or provisions of, or constitute a default under the Organizational Documents of the Company or any indenture or other agreement or instrument to which the Company is a party or by which it may be bound or result in the imposition of any liens or encumbrances on any property of the Company; and
(c) have been duly authorized by proper action on the part of the Company (no further action by the shareholders, owners, members or partners of the Company being required by law, the Organizational Documents of the Company or otherwise), and the Operative Agreements to which it is a party and the Note have been executed and delivered by the Company and constitute the legal, valid and binding obligations, contracts and agreements of the Company enforceable in accordance with their respective terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws of general application relating to or affecting creditors rights and general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
The term “Organizational Documents” of any entity shall mean (a) in the case of a corporation, the articles or certificate of incorporation and the by-laws of such corporation, (b) in the case of a limited liability company, the certificate of existence, certificate of formation or articles of organization and the operating agreement of such limited liability company, (c) in the case of a limited partnership, the certificate of limited partnership and limited partnership agreement of such limited partnership and the Organizational Documents of the general partner of such limited partnership, (d) in the case of a trust, the certificate of trust (if applicable) and the trust agreement for such trust, and (e) any documents similar or equivalent to the foregoing under the laws of the State where such entity was organized or formed.
8. No Defaults. No Default or Event of Default (as defined in the Deed of Trust) has occurred and is continuing.
A-2
9. Governmental Consent. No approval, consent or withholding of objection on the part of any regulatory body, state, Federal or local, is necessary in connection with the execution and delivery by the Company of the Operative Agreements or the Note or compliance by the Company with any of the provisions of the Operative Agreements or the Note.
10. Taxes. All tax returns required to be filed by the Company in any jurisdiction have, in fact, been filed, and all taxes, assessments, fees and other governmental charges upon the Company or upon any of its properties, income or franchises which are shown to be due and payable in such returns have been paid. The Company does not know of any proposed additional tax assessment against it, except for any taxes and assessments not yet due and payable and items being contested in accordance with Section 2.16(b) of the Deed of Trust.
11. Receipt of Proceeds. The Company has received from the Purchaser, without any right or claim of rescission, abatement, offset, counterclaim or defense, the Note proceeds. Subject to the terms of the Escrow and Servicing Agreement, there is no requirement for any future advances by the Purchaser under the Operative Agreements.
12. Use of Proceeds. The proceeds from the sale of the Note will be used for closing costs and general business purposes. None of the transactions contemplated in the Note Purchase Agreement (including without limitation thereof, the use of proceeds from the issuance of the Note ) will violate or result in the violation of Section 7 of the Securities Exchange Act of 1934, as amended, or any regulation issued pursuant thereto, including, without limitation, Regulations U, T and X of the Board of Governors of the Federal Reserve System, 12 C.F.R., Chapter II. The Company does not own or intend to carry or purchase any “margin security” within the meaning of said Regulation U. None of the proceeds from the sale of the Note will be used to purchase any “security” within the meaning of the Securities Exchange Act of 1934, as amended.
13. Investment Company Act Status. The Company is not an “investment company,” or a company “controlled” by an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended.
14. Compliance with Law. The Company is not in violation of any law, ordinance, governmental rule or regulation to which it is subject nor, to the knowledge of the Company, is the Tenant in violation of any such laws, ordinances, rules or regulations relating to the Granted Property to which it is subject, including in each case without limitation, the Occupational Safety and Health Act of 1970, as amended, the Employee Retirement Income Security Act of 1974, as amended (together with any successor statute and all regulations thereunder, “ERISA”) and except as set forth in the Environmental Report (as defined in the Hazardous Material Indemnity Agreement), all Environmental Legal Requirements (defined below), in each case the violation of which would materially and adversely affect the properties, business, profits or condition (financial or otherwise) of the Company. The term “Environmental Legal Requirement” shall mean any applicable law, statute or ordinance relating to public health, safety or the environment, including, without limitation, relating to releases, discharges or emissions to air, water, land or groundwater, to the withdrawal or use of groundwater, to the use and handling of polychlorinated biphenyls or asbestos, to the disposal, transportation, treatment, storage or management of solid or hazardous wastes or to exposure to toxic or hazardous materials,
A-3
to the handling, transportation, discharge or release of gaseous or liquid substances and any regulation, order, notice or demand issued pursuant to such law, statute or ordinance, in each case applicable to the Granted Property or the operation, construction or modification of any thereof, including without limitation the following: the Clean Air Act, the Federal Water Pollution Control Act, the Safe Drinking Water Act, the Toxic Substances Control Act, the Comprehensive Environmental Response Compensation and Liability Act as amended by the Superfund Amendments and Reauthorization Act of 1986, the Resource Conservation and Recovery Act as amended by the Solid and Hazardous Waste amendments of 1984, the Occupational Safety and Health Act, the Emergency Planning and Community Right-to-Know Act of 1986, the Solid Waste Disposal Act, and any state statutes addressing similar matters, and any state statute providing for financial responsibility for cleanup or other actions with respect to the release or threatened release of hazardous substances and any state nuisance statute.
15. ERISA. Neither the Company nor any ERISA Affiliate (“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Company within the meaning of section 414 of the Code) has any “employee pension benefit plans” as such term is defined in Section 3 of ERISA. The Company is not deemed to be and does not hold “plan assets” within the meaning of the Department of Labor regulations located at 29 C.F.R. Section 2510.3-101, as modified by Section 3(42) of ERISA. The execution and delivery of this Agreement and the issuance and sale of the Note hereunder will not involve any transaction that is subject to the prohibitions of section 406 of ERISA or in connection with which a tax could be imposed pursuant to section 4975(c)(1)(A)-(D) of the Code.
16. Solvency. Assuming that neither of the Note is accelerated or otherwise comes due prior to any scheduled payment date thereunder, the Company is solvent, has capital not unreasonably small in relation to its business or any contemplated or undertaken transaction and has assets having a value both at fair valuation and at present fair salable value greater than the amount required to pay the Company’s debts as they become due and greater than the amount that will be required to pay the Company’s probable liability on its existing debts as they become absolute and matured. Assuming that the Note is not accelerated and does not otherwise come due prior to any scheduled payment date thereunder, to the best knowledge of the Company, the Company does not intend to incur, nor does it believe that it will incur, debts beyond its ability to pay such debts as they become due. Assuming that neither of the Note is accelerated or otherwise comes due prior to any scheduled payment date thereunder, the Company will not be rendered insolvent by the execution, delivery and performance of its obligations under the Note Purchase Agreement, the Note, or the Deed of Trust. The Company does not intend to hinder, delay or defraud its creditors by or through the execution, delivery or performance of its obligations under the Note Purchase Agreement, the Note, or the Deed of Trust.
17. Private Offering. Neither the Company nor any agent on the Company’s behalf has offered or will offer the Note or any similar Security (as defined in Section 2(1) of the Securities Act of 1933, as amended) to, or has solicited or will solicit an offer to acquire the Note or any similar Security from, or has otherwise approached or will approach or negotiate in respect of the Note or any similar Security with, any person or entity other than the Purchaser and certain other institutional investors, each of whom was offered the Note at private sale for investment. Neither the Company nor any agent on the Company’s behalf has taken or will take any action that would subject the issuance or sale of the Note within the provisions of Section 5 of the Securities
A-4
Act of 1933, as amended or to the registration requirements of any Securities laws of any applicable jurisdiction.
18. The Composite Sublease. To the Company’s knowledge, the Composite Sublease is in full force and effect and has not been modified or amended. No offset has been asserted with respect to any rents or other sums payable or to become payable under the Composite Sublease to the Company as landlord under the Composite Sublease and no rents payable to the Company under the Composite Sublease have been paid more than one month in advance. The Company is not in default under the Composite Sublease and, to the Company’s knowledge, no other default has occurred and is continuing under the Composite Sublease and no other event has occurred which with the lapse of time or notice, or both, would constitute a default under the Composite Sublease. All obligations required to be performed by the landlord under the terms of the Composite Sublease as a condition to the commencement and/or payment of rent have been satisfied on or prior to the date hereof.
19. The Granted Property. To the knowledge of the Company, the Granted Property has not suffered damage or destruction which renders it inoperable or unusable and, to the Company’s knowledge under applicable zoning, use, environmental protection and other laws, ordinances, rules and regulations, the Granted Property may be used in the ordinary course of the Tenant’s business pursuant to the Composite Sublease. Without limiting the foregoing, to the knowledge of the Company, except as may be reflected on the survey and any flood certification delivered in connection with the issuance of the Note, no portion of the real property constituting a portion of the Granted Property is located in an “area of special flood hazard,” as that term is defined in the regulations of the Federal Insurance Administration, Department of Housing and Urban Development, under the National Flood Insurance Act of 1968, as amended (24 CFR § 1909.1).
20. Rent. Absent the occurrence of a condemnation or other event entitling Tenant to abate rent, the aggregate amount of the fixed rental installments payable under the Composite Sublease will, on each date for the payment thereof set forth in the Composite Sublease, be sufficient, if paid when originally scheduled to be due, to make payment of the interest and principal due on the Note on the scheduled due date immediately following such rent payment date, except for the amount due at maturity for the Note.
21. Property Taxed as Separate Tax Lot. To the knowledge of the Company, (a) the Granted Property is taxed as one or more separate and distinct tax lots and (b) no part of the Granted Property shares a tax lot with any adjoining lands and for all purposes the Granted Property may be mortgaged, conveyed and otherwise dealt with as a single, independent parcel.
22. I. Trading with the Enemy Act. Neither the issuance and sale of the Note nor the use of the proceeds thereof will violate the Trading with the Enemy Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or the Anti-Terrorism Order or any enabling legislation or executive order relating to any of the same. Without limiting the generality of the foregoing, neither the Company nor any of its Affiliates (a) is or will become a blocked person described in Section 1 of the Anti-Terrorism Order or (b) engages or will engage in any dealings or transactions or be otherwise associated with any such blocked person. For purposes hereof, “Anti-Terrorism
A-5
Order” means Executive Order No. 13,224, 66 Fed. Reg. 49,079 (2001), issued by the President of the United States (Executive Order Blocking Property and Prohibiting Transactions with Persons who Commit, threaten to Commit or Support Terrorism).
II. Foreign Assets Control Regulations, Etc. (a) Neither the Company nor any Controlled Entity is (i) a Person whose name appears on the list of Specially Designated Nationals and Blocked Persons published by the Office of Foreign Assets Control, United States Department of the Treasury (“OFAC”) (an “OFAC Listed Person”) (ii) an agent, department, or instrumentality of, or is otherwise beneficially owned by, controlled by or acting on behalf of, directly or indirectly, (x) any OFAC Listed Person or (y) any Person, entity, organization, foreign country or regime that is subject to any OFAC Sanctions Program, or (iii) otherwise blocked, subject to sanctions under or engaged in any activity in violation of other United States economic sanctions, including but not limited to, the Trading with the Enemy Act, the International Emergency Economic Powers Act, the Comprehensive Iran Sanctions, Accountability and Divestment Act (“CISADA”) or any similar law or regulation with respect to Iran or any other country, the Sudan Accountability and Divestment Act, any OFAC Sanctions Program, or any economic sanctions regulations administered and enforced by the United States or any enabling legislation or executive order relating to any of the foregoing (collectively, “U.S. Economic Sanctions”), or (iv) a Canada Blocked Person (each OFAC Listed Person, each Canada Blocked Person and each other Person, entity, organization and government of a country described in clause (i), clause (ii) or clause (iii), a “Blocked Person”). Neither the Company nor any Controlled Entity has been notified that its name appears or may in the future appear on a state list of Persons that engage in investment or other commercial activities in Iran or any other country that is subject to US. Economic Sanctions or Canadian Economic Sanctions Laws. As used herein, (A) the term “OFAC Sanctions Program” means any economic or trade sanction that OFAC is responsible for administering and enforcing (a list of OFAC Sanctions Programs may be found at http://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx) and (B) the term “Controlled Entity” means (i) any of the Subsidiaries of the Company and any of their or the Company’s respective Controlled Affiliates and (ii) if the Company has a parent company, such parent company and its Controlled Affiliates (as used in this definition, “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise), (C) the term “Canada Blocked Person” means (i) a “terrorist group” as defined for the purposes of Part II.1 of the Criminal Code (Canada), as amended, or (ii) a person identified in or pursuant to (x) Part II.1 of the Criminal Code (Canada), as amended, or (y) regulations or orders promulgated pursuant to the Special Economic Measures Act (Canada), as amended, the United Nations Act (Canada), as amended, or the Freezing Assets of Corrupt Foreign Officials Act (Canada), as amended, as a person in respect of whose property or benefit a holder of Note would be prohibited from entering into or facilitating a related financial transaction, and (D) the term “Canadian Economic Sanctions Laws” means those laws, including enabling legislation, orders-in-council or other regulations administered and enforced by Canada pursuant to which economic sanctions have been imposed on any Person, including Part II.1 of the Criminal Code (Canada), as amended, the Special Economic Measures Act (Canada), as amended, the United Nations Act (Canada), as amended, the Export and Import Permits Act (Canada), as amended, and the Freezing Assets of Corrupt Foreign Officials Act (Canada), as amended, and including all regulations promulgated under any of the foregoing.
A-6
(b) No part of the proceeds from the sale of the Note hereunder constitutes or will constitute funds obtained on behalf of any Blocked Person or will otherwise be used by the Company or any Controlled Entity, directly or indirectly, (i) in connection with any investment in, or any transactions or dealings with, any Blocked Person, or (ii) otherwise in violation of U.S. Economic Sanctions or Canadian Economic Sanctions Laws.
(c) Neither the Company nor any Controlled Entity (i) has been found in violation of, charged with, or convicted of, money laundering, drug trafficking, terrorist-related activities or other money laundering predicate crimes under the Currency and Foreign Transactions Reporting Act of 1970 (otherwise known as the Bank Secrecy Act), the USA PATRIOT Act or any other United States law or regulation governing such activities (collectively, “Anti-Money Laundering Laws”) or any U.S. Economic Sanctions or Canadian Economic Sanctions Laws violations, (ii) to the Company’s actual knowledge after making due inquiry, is under investigation by any Governmental Authority for possible violation of Anti-Money Laundering Laws or any U.S. Economic Sanctions or Canadian Economic Sanctions Laws violations, (iii) has been assessed civil penalties under any Anti-Money Laundering Laws or any U.S. Economic Sanctions, or Canadian Economic Sanctions Laws or (iv) has had any of its funds seized or forfeited in an action under any Anti-Money Laundering Laws. The Company has established procedures and controls which it reasonably believes are adequate (and otherwise comply with applicable law) to ensure that the Company and each Controlled Entity of the Company is and will continue to be in compliance with all applicable current Anti-Money Laundering Laws and U.S. Economic Sanctions or Canadian Economic Sanctions Laws.
(d) (1) Neither the Company nor any Controlled Entity (i) has been charged with, or convicted of bribery or any other anti-corruption related activity under any applicable law or regulation in a U.S. or any non-U.S. country or jurisdiction, including but not limited to, the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act 2010, the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) and any regulations promulgated thereunder (collectively, “Anti-Corruption Laws”), (ii) to the Company’s actual knowledge after making due inquiry, is under investigation by any U.S. or non-U.S. Governmental Authority for possible violation of Anti-Corruption Laws, (iii) has been assessed civil or criminal penalties under any Anti-Corruption Laws or (iv) has been or is the target of sanctions imposed by the United Nations or the European Union;
(2) To the Company’s actual knowledge after making due inquiry, neither the Company nor any Controlled Entity has, within the last five years, directly or indirectly offered, promised, given, paid or authorized the offer, promise, giving or payment of anything of value to a Governmental Official or a commercial counterparty for the purposes of: (i) influencing any act, decision or failure to act by such Government Official in his or her official capacity or such commercial counterparty, (ii) inducing a Governmental Official to do or omit to do any act in violation of the Governmental Official’s lawful duty, or (iii) inducing a Governmental Official or a commercial counterparty to use his or her influence with a government or instrumentality to affect any act or decision of such government or instrumentality, in each case in order to obtain, retain or direct business or to otherwise secure an improper advantage in violation of any applicable law or regulation or which would cause any holder to be in violation of any law or regulation applicable to such holder; and
A-7
(3) No part of the proceeds from the sale of the Note hereunder will be used, directly or indirectly, for any improper payments, including bribes, to any Governmental Official or commercial counterparty in order to obtain, retain or direct business or obtain any improper advantage. The Company has established procedures and controls which it reasonably believes are adequate (and otherwise comply with applicable law) to ensure that the Company and each Controlled Entity of the Company is and will continue to be in compliance with all applicable current and future Anti-Corruption Laws.
As used in this Paragraph 22,
(a) the term “Controlled Entity” means (i) any of the Subsidiaries of the Company and any of its Controlled Affiliates and (ii) if the Company has a parent company, such parent company and its Controlled Affiliates. As used in this definition, “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise;
(b) the term “Governmental Official” means any governmental official or employee, employee of any government-owned or government-controlled entity, political party, any official of a political party, candidate for political office, official of any public international organization or anyone else acting in an official capacity; and
(c) the term “OFAC Sanctions Program” means any economic or trade sanction that OFAC is responsible for administering and enforcing. A list of OFAC Sanctions Programs may be found at http://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx.
23. Management Agreement. The Company is not a party to any Management Agreement in effect with respect to the Granted Property.
24. Permits and Approvals. To the Company’s knowledge, the prior owner or owners of the Granted Property, the Tenant or the Company have obtained, or will obtain when needed, all material permits and approvals that are required for the use and occupancy of the Granted Property under any and all applicable laws, ordinances, rules, regulations, covenants and restrictions, all of which have been, or will be when needed, duly and validly issued by the governmental authorities or persons having jurisdiction or rights with respect thereto, and which permits and approvals are, or will be when needed, in full force and effect and are, or will be when needed, not subject to appeal, any applicable period for appealing such actions having expired, except where the failure to obtain such permits and approvals could not reasonably be expected to have a Material Adverse Effect. To the Company’s knowledge, the Granted Property complies in all material respects with all requirements of all laws, ordinances, rules, regulations, covenants and restrictions affecting the occupancy, intended use(s) and operation thereof as set forth in the Composite Sublease.
25. Zoning. Based on the zoning reports delivered in connection with the issuance of the Note, the zoning classifications applicable to the Granted Property permit the occupancy, use and operation of the Granted Property as an office building as set forth in the
A-8
Composite Sublease. To the Company’s knowledge, the Granted Property and the occupancy, use and operation thereof are in compliance in all material respects with all applicable material requirements of state, county and municipal law (as either a “legal conforming use” or a “legal non-conforming use” as described in the zoning report delivered in connection the issuance of the Note) and all licenses, permits and approvals required for the occupancy, use and operation of the Granted Property as such an office building have been obtained and are in full force and effect.
26. The Prime Lease. To the Company’s knowledge, the Prime Lease is in full force and effect and has not been modified or amended except as disclosed to the Purchaser. To the Company’s knowledge, the Tenant is not in default under the Prime Lease and no other default has occurred and is continuing under the Prime Lease and no other event has occurred which with the lapse of time or notice, or both, would constitute a default under the Prime Lease.
27. Intentionally omitted.
28. No Condemnation. No condemnation, eminent domain or other similar proceeding has been commenced or, to the knowledge of the Company, is contemplated with respect to all or any portion of the Granted Property.
29. Not a Foreign Person. Neither the Company nor any Affiliate of the Company is a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended.
30. Ownership of Direct and Indirect Equity Interest in the Company. The organizational chart set forth on Exhibit E to the Note Purchase Agreement completely and accurately documents each and every owner or holder of a direct or indirect equity interest in the Company and each Person that controls (as such term is defined in the definition of Affiliate as defined in the Deed of Trust) the Company.
31. Anti-Money Laundering. None of the funds of the Company or any Affiliate of the Company that are used to consummate the transaction evidenced by the Operative Agreements are derived from or are the proceeds of any unlawful activity, with the result that the investment in the Company or any Affiliate of the Company is prohibited by law or the loan evidenced by the Operative Agreements is in violation of law or may cause any of the Granted Property to be subject to forfeiture or seizure. The Company has ascertained the identity of all Persons and entities who have provided funds to capitalize the Company and has conducted verification procedures which are sufficient to establish the identity and source of such funds.
32. No Forfeiture. Neither the Company nor any Affiliate of the Company has committed any act or omission affording any governmental entity the right to forfeiture against the Granted Property and or any of the direct or indirect equity interest in the Company, or against any monies paid in performance of the Company or any Affiliate of the Company’s obligations under any of the Operative Agreements. Neither the Company nor the Indemnitor may commit, permit or suffer to exist any act, omission or circumstances affording such right of forfeiture. In furtherance thereof, the Company indemnifies the Purchaser and agrees to defend and hold the Purchaser harmless from and against any loss, cost, fees and expenses because of the breach of the
A-9
agreements or the representations and warranties set forth in this paragraph. This indemnity will survive the expiration or termination of this Agreement.
A-10
DESCRIPTION OF SPECIAL COUNSEL’S CLOSING OPINION
The closing opinion of Chapman and Cutler LLP, Special Counsel, which is called for by Section 3.2(g) of the Note Purchase Agreement, shall be dated the Closing Date and addressed to the Purchaser, shall be satisfactory in form and substance to the Purchaser and shall be to the effect that:
1. The issuance, sale and delivery of the Note under the circumstances contemplated by the Note Purchase Agreement does not under existing law require the registration of the Note under the Securities Act of 1933, as amended, or the qualification of an indenture under the Trust Indenture Act of 1939, as amended.
EXHIBIT C
(to Note Purchase Agreement)
DESCRIPTION OF CLOSING OPINION OF COUNSEL
FOR THE COMPANY
The closing opinions of Dickinson Wright PLLC, as counsel for the Company, which are called for by Section 3.2(h) of the Note Purchase Agreement, shall be dated the Closing Date and addressed to the Purchaser, and shall be satisfactory in form and substance to the Purchaser and shall be to the aggregate effect that:
1. The Company is a limited liability company duly organized, legally existing and in good standing under the laws of the State of Tennessee with full power and authority to enter into and perform each of the Operative Agreements to which it is a party and to issue the Note and incur the indebtedness to be evidenced thereby;
2. Each of the Operative Agreements to which the Company is a party has been duly authorized by all necessary action on the part of the Company, has been duly executed by the Company and delivered and constitutes the legal, valid and binding contract and agreement of the Company, enforceable in accordance with its terms, except as enforceability thereof may be limited by (i) bankruptcy, insolvency, fraudulent conveyance or similar laws affecting the enforcement of creditors’ rights generally, (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iii) certain remedies provided for in the Deed of Trust may be limited by applicable law (none of which limitations on remedies will, however, in the opinion of such counsel, materially interfere with the practical realization of the security provided by the Deed of Trust);
3. The Indemnity and Guaranty Agreement and the Hazardous Material Indemnity Agreement have been duly executed by Indemnitor and delivered and constitute the legal, valid and binding contracts and agreements of Indemnitor, enforceable in accordance with their terms, except as enforceability thereof may be limited by (i) bankruptcy, insolvency, fraudulent conveyance or similar laws affecting the enforcement of creditors’ rights generally, (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);
4. The Note has been duly authorized by all necessary action on the part of the Company and has been duly executed by the Company and delivered and constitutes the legal, valid and binding obligation of the Company enforceable in accordance with its terms, except as enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);
5. No approval, consent or withholding of objection on the part of, or registration or qualification with, any governmental body, Federal, state or local, is necessary in connection with the execution and delivery of the Note or the Operative Agreements to which the Company is a party;
6. Intentionally omitted;
7. The issuance and sale of the Note by the Company and compliance by the Company with the Note and all of the provisions of the Operative Agreements to which it is a party
EXHIBIT D
(to Note Purchase Agreement)
will not conflict with, or result in any breach of any of the provisions of, or constitute a default under, the Organizational Documents of the Company or other instrument known to such counsel to which the Company is a party or by which the Company may be bound, or result in the imposition of any liens or encumbrances on any property of the Company other than in favor of the Purchaser;
8. To our knowledge, there are no suits or proceedings pending, or threatened against or affecting the Company which, if adversely determined, would have a material adverse effect on the financial condition or business of the Company or on the ability of the Company to perform its obligations under the Note or the Operative Agreements to which it is a party;
9. Reserved;
10. The Deed of Trust, the Assignment of Leases and Rents, the SNDA Agreement, the Leasehold Recognition Agreement and the financing statements and the acknowledgements set forth therein are in form satisfactory for recording or filing with the applicable recording or filing office, as the case may be, and conform to all requirements of the laws of the State of Tennessee for recording or filing, as applicable;
11. With respect to the Deed of Trust:
(a) The Deed of Trust must be recorded and indexed in the Haywood County Departments of Records, State of Tennessee, to create a valid and effective lien of record on, and security interest with respect to, the Granted Property that constitutes an interest in real property.
(b) Upon satisfaction of such recording and indexing requirements, the Deed of Trust will constitute a valid and effective lien of record on, and security interest with respect to, the Granted Property described in the Deed of Trust to the extent such Granted Property constitutes an interest in real property in which the Company has title or interest. Upon payment of the applicable recording fees for the Deed of Trust, the Assignment of Leases and Rents, the SNDA Agreement, the Leasehold Recognition Agreement and the financing statements, there shall have been duly paid all taxes, fees, and other public charges payable to any state or municipal agency within the State of Tennessee in connection with the recording and indexing of the Deed of Trust in the State of Tennessee.
(c) It is not necessary, prior to the stated maturity of the Note, to re-record the Deed of Trust in order to maintain notice of and to preserve the validity of the lien on and security interest in the real property collateral described therein.
(d) The Deed of Trust is effective as a security agreement under the Uniform Commercial Code-Secured Transactions in effect in the State of Tennessee (the “Tennessee UCC”) for those items of the Granted Property in which a security interest may be created under the Tennessee UCC.
D-2
12. The Deed of Trust creates a valid current assignment of the Composite Sublease and rents thereunder and upon recording the Deed of Trust in the Haywood County Departments of Records, State of Tennessee, no further action will be necessary to effect such assignment;
13. Upon proper filing of the financing statement with the Company as debtor with the Secretary of State of the State of Tennessee and recording the Deed of Trust as a financing statement in the Haywood County Departments of Records, State of Tennessee, then such financing statements and the Deed of Trust shall have been duly filed or recorded, as applicable, in all public offices in which they are required to be so filed or recorded in order to perfect the lien and security interest granted or intended to be granted thereby to the extent a lien in the Granted Property may be perfected by filing a UCC financing statement or recording the Deed of Trust as a financing statement; and upon payment of the applicable filing and recording fees, there shall have been duly paid all taxes, fees and other public charges which are payable in connection with such execution, delivery and filing and no further filing or recording is necessary in order to fully create and perfect the liens and security interest granted, or intended to be granted, to Purchaser under the Deed of Trust in such of the Granted Property that is covered by the scope of the Tennessee UCC and in which a security interest may be perfected by such filing or recording;
14. The Composite Sublease constitutes the legal, valid and binding contract and agreement of the Company, enforceable in accordance with its terms, except as enforceability thereof may be limited by (i) bankruptcy, insolvency, fraudulent conveyance or similar laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);
15. The opinions of Dickinson Wright PLLC shall cover such other matters relating to the sale of the Note as the Purchaser may reasonably request.
D-3
Exhibit 10.2
UDOT CTL-Funding, LLC, a Tennessee limited liability company
6.84% Senior Secured Note, Due November 15, 2034
No. A-1 October 22, 2025
$195,934,487.65
UDOT CTL-Funding, LLC, a Tennessee limited liability company (the “Company”), for value received, hereby promises to pay to or to the order of Wilmington Trust, National Association, as Trustee or registered assigns, the original principal amount of One Hundred Ninety-Five Million Nine Hundred Thirty-Four Thousand Four Hundred Eighty-Seven and 65/100 dollars ($195,934,487.65), together with interest from the date hereof until maturity at the rate of 6.84% per annum (computed on the basis of a 360-day year of 12 consecutive 30-day months) in installments as provided in the amortization schedule attached hereto as Annex I.
The Company further promises to pay interest at the rate of 11.84% (the “Default Rate”) per annum (i) on each overdue installment of principal, premium, if any, and (to the extent legally enforceable) upon each overdue installment of interest in each case from and after the due date of each such installment, whether by acceleration or otherwise, until paid and (ii) during the continuance of an Event of Default, on the unpaid balance hereof and on any overdue payment of any Make-Whole Amount. Payments of principal, premium, if any, and interest shall be made in such coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts by check mailed and addressed to the holder hereof at the address set forth on page 1 of the Note Purchase Agreement described below, or, at the option of the holder hereof, in such manner and at such other place in the United States of America as the holder hereof shall have designated to the Company in writing. If any scheduled payment date on this Note is not a Business Day, the applicable payment shall be due and payable on the first Business Day immediately following such scheduled payment date.
This Note is issued under and pursuant to the terms and provisions of the Note Purchase Agreement dated as of the date hereof (the “Note Purchase Agreement”) entered into by the Company with Wilmington Trust, National Association, as Trustee (the “Purchaser”) and secured by the Leasehold Deed of Trust, Security Agreement, Assignment of Leases and Rents and Fixture Filing Statement dated as of the date hereof (the “Deed of Trust”) from the Company for the benefit of the Purchaser in respect of the Granted Property described therein and the Composite Sublease Agreement dated as of August 12, 2024 between Universal Development of Tennessee, LLC, a Tennessee limited liability company (“UDOT”) and Ford Motor Company, a Delaware corporation (the “Tenant”), as assigned by that certain Assignment of Composite Sublease Agreement dated as of October 22, 2025, from UDOT to the Company (collectively, as may be heretofore or hereafter otherwise amended, modified or supplemented, the “Composite Sublease”) and the Facility Lease Agreement, dated as of August 12, 2024, between the State of Tennessee, acting by and through the Megasite Authority of West Tennessee, as lessor (the “Authority”) and Tenant, as lessee (as may be heretofore or hereafter otherwise amended, modified or supplemented, the “Prime Lease”). This Note and the holder hereof are entitled to all the benefits provided for by the Note Purchase Agreement, the Deed of Trust and the other Operative Agreements, to which Note Purchase Agreement, Deed of Trust and Operative Agreements reference is hereby made for the statement thereof, including a description of the Granted Property, the nature and extent of the security and the rights of the holder of the Note and of the Company
EXHIBIT A
(to Note Purchase Agreement)
in respect thereof. Capitalized terms not otherwise defined herein shall have the respective meanings ascribed thereto in the Deed of Trust.
Interest on the indebtedness hereunder shall not exceed the maximum amount of nonusurious interest that may be contracted for, taken, reserved, charged, or received under law; any interest in excess of that maximum amount shall be credited on the principal of the indebtedness hereunder or, if that has been paid, refunded. On any acceleration or required or permitted prepayment, any such excess shall be cancelled automatically as of the acceleration or prepayment or, if already paid, credited on the principal of the indebtedness hereunder or, if the principal of the debt has been paid, refunded. This provision overrides other provisions in this Note and all other instruments concerning the Indebtedness Hereby Secured.
If not sooner due and payable pursuant to the terms of the Deed of Trust, the entire indebtedness evidenced by this Note shall be due and payable on November 15, 2034.
This Note may be declared due prior to November 15, 2034, voluntary prepayments may be made thereon by the Company and certain prepayments are required to be made thereon, all in the events, on the terms and in the manner and amounts as provided in the Deed of Trust.
[Signatures on Following Page]
This Note shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflicts of law provisions.
UDOT CTL-Funding, LLC, a Tennessee limited liability company
By: |
/s/ Jude M. Beres |
Name: |
Jude M. Beres |
Title: |
President |
ANNEX I
AMORTIZATION SCHEDULE
|
||||
DS Payment Date |
DS Payment |
Principal |
Interest |
End Balance |
6.84% |
$195,934,487.65 |
|||
11/15/25 |
2,418,389.61 |
(1,301,563.03) |
(1,116,826.58) |
194,632,924.62 |
12/15/25 |
2,418,389.61 |
(1,308,981.94) |
(1,109,407.67) |
193,323,942.68 |
1/15/26 |
2,418,389.61 |
(1,316,443.14) |
(1,101,946.47) |
192,007,499.54 |
2/15/26 |
2,418,389.61 |
(1,323,946.86) |
(1,094,442.75) |
190,683,552.68 |
3/15/26 |
2,418,389.61 |
(1,331,493.36) |
(1,086,896.25) |
189,352,059.32 |
4/15/26 |
2,418,389.61 |
(1,339,082.87) |
(1,079,306.74) |
188,012,976.45 |
5/15/26 |
2,418,389.61 |
(1,346,715.64) |
(1,071,673.97) |
186,666,260.81 |
6/15/26 |
2,418,389.61 |
(1,354,391.92) |
(1,063,997.69) |
185,311,868.89 |
7/15/26 |
2,418,389.61 |
(1,362,111.96) |
(1,056,277.65) |
183,949,756.93 |
8/15/26 |
2,418,389.61 |
(1,369,876.00) |
(1,048,513.61) |
182,579,880.93 |
9/15/26 |
2,418,389.61 |
(1,377,684.29) |
(1,040,705.32) |
181,202,196.64 |
10/15/26 |
2,418,389.61 |
(1,385,537.09) |
(1,032,852.52) |
179,816,659.55 |
11/15/26 |
2,418,389.61 |
(1,393,434.65) |
(1,024,954.96) |
178,423,224.90 |
12/15/26 |
2,418,389.61 |
(1,401,377.23) |
(1,017,012.38) |
177,021,847.67 |
1/15/27 |
2,418,389.61 |
(1,409,365.08) |
(1,009,024.53) |
175,612,482.59 |
2/15/27 |
2,418,389.61 |
(1,417,398.46) |
(1,000,991.15) |
174,195,084.13 |
3/15/27 |
2,418,389.61 |
(1,425,477.63) |
(992,911.98) |
172,769,606.50 |
4/15/27 |
2,418,389.61 |
(1,433,602.85) |
(984,786.76) |
171,336,003.65 |
5/15/27 |
2,418,389.61 |
(1,441,774.39) |
(976,615.22) |
169,894,229.26 |
6/15/27 |
2,418,389.61 |
(1,449,992.50) |
(968,397.11) |
168,444,236.76 |
7/15/27 |
2,418,389.61 |
(1,458,257.46) |
(960,132.15) |
166,985,979.30 |
8/15/27 |
2,418,389.61 |
(1,466,569.53) |
(951,820.08) |
165,519,409.77 |
9/15/27 |
2,418,389.61 |
(1,474,928.97) |
(943,460.64) |
164,044,480.80 |
10/15/27 |
2,418,389.61 |
(1,483,336.07) |
(935,053.54) |
162,561,144.73 |
11/15/27 |
2,418,389.61 |
(1,491,791.09) |
(926,598.52) |
161,069,353.64 |
12/15/27 |
2,418,389.61 |
(1,500,294.29) |
(918,095.32) |
159,569,059.35 |
1/15/28 |
2,418,389.61 |
(1,508,845.97) |
(909,543.64) |
158,060,213.38 |
2/15/28 |
2,418,389.61 |
(1,517,446.39) |
(900,943.22) |
156,542,766.99 |
3/15/28 |
2,418,389.61 |
(1,526,095.84) |
(892,293.77) |
155,016,671.15 |
4/15/28 |
2,418,389.61 |
(1,534,794.58) |
(883,595.03) |
153,481,876.57 |
5/15/28 |
2,418,389.61 |
(1,543,542.91) |
(874,846.70) |
151,938,333.66 |
6/15/28 |
2,418,389.61 |
(1,552,341.11) |
(866,048.50) |
150,385,992.55 |
7/15/28 |
2,418,389.61 |
(1,561,189.45) |
(857,200.16) |
148,824,803.10 |
8/15/28 |
2,418,389.61 |
(1,570,088.23) |
(848,301.38) |
147,254,714.87 |
9/15/28 |
2,418,389.61 |
(1,579,037.74) |
(839,351.87) |
145,675,677.13 |
10/15/28 |
2,418,389.61 |
(1,588,038.25) |
(830,351.36) |
144,087,638.88 |
11/15/28 |
2,418,389.61 |
(1,597,090.07) |
(821,299.54) |
142,490,548.81 |
12/15/28 |
2,418,389.61 |
(1,606,193.48) |
(812,196.13) |
140,884,355.33 |
1/15/29 |
2,418,389.61 |
(1,615,348.78) |
(803,040.83) |
139,269,006.55 |
2/15/29 |
2,418,389.61 |
(1,624,556.27) |
(793,833.34) |
137,644,450.28 |
3/15/29 |
2,418,389.61 |
(1,633,816.24) |
(784,573.37) |
136,010,634.04 |
4/15/29 |
2,418,389.61 |
(1,643,129.00) |
(775,260.61) |
134,367,505.04 |
5/15/29 |
2,418,389.61 |
(1,652,494.83) |
(765,894.78) |
132,715,010.21 |
6/15/29 |
2,418,389.61 |
(1,661,914.05) |
(756,475.56) |
131,053,096.16 |
7/15/29 |
2,418,389.61 |
(1,671,386.96) |
(747,002.65) |
129,381,709.20 |
8/15/29 |
2,418,389.61 |
(1,680,913.87) |
(737,475.74) |
127,700,795.33 |
9/15/29 |
2,418,389.61 |
(1,690,495.08) |
(727,894.53) |
126,010,300.25 |
10/15/29 |
2,418,389.61 |
(1,700,130.90) |
(718,258.71) |
124,310,169.35 |
11/15/29 |
2,418,389.61 |
(1,709,821.64) |
(708,567.97) |
122,600,347.71 |
12/15/29 |
2,418,389.61 |
(1,719,567.63) |
(698,821.98) |
120,880,780.08 |
1/15/30 |
2,418,389.61 |
(1,729,369.16) |
(689,020.45) |
119,151,410.92 |
2/15/30 |
2,418,389.61 |
(1,739,226.57) |
(679,163.04) |
117,412,184.35 |
3/15/30 |
2,418,389.61 |
(1,749,140.16) |
(669,249.45) |
115,663,044.19 |
4/15/30 |
2,418,389.61 |
(1,759,110.26) |
(659,279.35) |
113,903,933.93 |
5/15/30 |
2,418,389.61 |
(1,769,137.19) |
(649,252.42) |
112,134,796.74 |
6/15/30 |
2,418,389.61 |
(1,779,221.27) |
(639,168.34) |
110,355,575.47 |
7/15/30 |
2,418,389.61 |
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108,566,212.64 |
8/15/30 |
2,418,389.61 |
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106,766,650.44 |
9/15/30 |
2,418,389.61 |
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10/15/30 |
2,418,389.61 |
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103,136,695.07 |
11/15/30 |
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12/15/30 |
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1/15/31 |
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2/15/31 |
2,418,389.61 |
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95,751,811.58 |
3/15/31 |
2,418,389.61 |
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93,879,207.30 |
4/15/31 |
2,418,389.61 |
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91,995,929.17 |
5/15/31 |
2,418,389.61 |
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90,101,916.36 |
6/15/31 |
2,418,389.61 |
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88,197,107.67 |
7/15/31 |
2,418,389.61 |
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86,281,441.57 |
8/15/31 |
2,418,389.61 |
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84,354,856.18 |
9/15/31 |
2,418,389.61 |
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82,417,289.25 |
10/15/31 |
2,418,389.61 |
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80,468,678.19 |
11/15/31 |
2,418,389.61 |
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12/15/31 |
2,418,389.61 |
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76,538,071.51 |
1/15/32 |
2,418,389.61 |
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74,555,948.91 |
2/15/32 |
2,418,389.61 |
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3/15/32 |
2,418,389.61 |
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70,557,745.01 |
4/15/32 |
2,418,389.61 |
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68,541,534.55 |
5/15/32 |
2,418,389.61 |
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66,513,831.69 |
6/15/32 |
2,418,389.61 |
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64,474,570.92 |
7/15/32 |
2,418,389.61 |
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62,423,686.36 |
8/15/32 |
2,418,389.61 |
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60,361,111.76 |
9/15/32 |
2,418,389.61 |
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58,286,780.49 |
10/15/32 |
2,418,389.61 |
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56,200,625.53 |
11/15/32 |
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12/15/32 |
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0.00 |
Exhibit 10.3
Execution Version
Indemnity And Guaranty Agreement
Dated as of October 22, 2025
From
Universal Logistics Holdings, Inc.
To
Wilmington Trust, National Association, as Trustee of the Ford (Stanton, TN) Lease-Backed Pass-Through Trust
Indemnity And Guaranty Agreement
This Indemnity And Guaranty Agreement (this “Agreement”), made as of October 22, 2025, by Universal Logistics Holdings, Inc., a Nevada corporation (the “Indemnitor”), in favor of Wilmington Trust, National Association, as Trustee of the Ford (Stanton, TN) Lease-Backed Pass-Through Trust (the “Purchaser”).
W I T N E S S E T H:
Whereas, pursuant to a Note Purchase Agreement dated as of the date hereof between UDOT CTL-Funding, LLC, a Tennessee limited liability company (the “Company”), and the Purchaser (the “Note Purchase Agreement”), the Company has agreed to offer and sell to the Purchaser, and said Purchaser has agreed to purchase from the Company, the Company’s 6.84% Senior Secured Note, due November 15, 2034 in the original principal amount of $195,934,487.65 (the “Note”); and
Whereas, the Note is secured by, among other things, a Leasehold Deed of Trust, Security Agreement, Assignment of Leases and Rents and Fixture Filing Statement dated as of the date hereof from the Company to the deed of trust trustee set forth therein for the benefit of the Purchaser (the “Deed of Trust”) and other documents dated of even date herewith between the Company and the Purchaser, encumbering the Company’s ownership interest in that certain real property described on Exhibit A attached thereto and incorporated herein by this reference (the “Premises”) together with the Company’s interest in the buildings, structures, fixtures, additions, enlargements, extensions, modifications, repairs, replacements, improvements and appurtenances now standing or at any time constructed or placed upon the Premises (hereinafter, the “Improvements,” collectively with the Premises, the “Property”); and
Whereas, as a condition to purchasing the Note from the Company, the Purchaser has required that the Indemnitor indemnify the Purchaser from and against, and guarantee payment to the Purchaser of, the Recourse Obligations and Prepayment Shortfall Obligation set forth herein; and
Whereas, Indemnitor is the owner of an indirect equity interest in and controls the Company, the purchase of the Note from the Company is of substantial benefit to the Indemnitor and, therefore, the Indemnitor desires to indemnify the Purchaser from and against and guaranty payment to the Purchaser of the Recourse Obligations and Prepayment Shortfall Obligation set forth herein; and
Whereas, capitalized terms not otherwise defined in this Agreement shall have the meaning ascribed to such terms in the Deed of Trust.
Now, Therefore, to induce the Purchaser to purchase the Note from the Company and in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Indemnitor hereby covenants and agrees for the benefit of the Purchaser, as follows:
Universal Logistics Holdings, Inc. Indemnity and Guaranty Agreement
Universal Logistics Holdings, Inc. Indemnity and Guaranty Agreement
Notwithstanding anything to the contrary in the Operative Agreements, the Purchaser shall not be deemed to have waived any right which the Purchaser may have under Sections 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness Hereby Secured or to require that all collateral shall continue to secure all of the
Universal Logistics Holdings, Inc. Indemnity and Guaranty Agreement
obligations owing to the Purchaser, and the full amount of the Indebtedness Hereby Secured shall be fully recourse to the Indemnitor (i) upon the occurrence of a voluntary bankruptcy, insolvency or similar debt relief proceeding initiated by and with respect to the Company or the Indemnitor or an involuntary bankruptcy, insolvency proceeding or similar debt relief proceeding of the Company or the Indemnitor involving the collusion of the Company or the Indemnitor or any of their Affiliates, (ii) upon a violation of Section 2.3 (g) or (h) of the Deed of Trust, (iii) in the event the Company or the Indemnitor raises any defense, counterclaim and/or allegation in any action by the Purchaser exercising its rights or remedies which is found by a court to have been raised by the Company or the Indemnitor, as the case may be, in bad faith or (iv) in the event of any amendment, modification, substitution, extension, assignment, replacement, supplement, alteration, cancellation, surrender or termination of the Composite Sublease or Prime Lease, in each case, by the Company in violation of the Operative Agreements without the Purchaser’s prior written consent.
(b) Indemnitor hereby guarantees payment to the Purchaser of and hereby agrees to pay any shortfall described in Section 2.12(c)(ii) of the Deed of Trust in connection with prepayment of the Note (including the Make-Whole Amount) in the event that Tenant exercises any of the Base Rent Prepayment Options set forth in Section 7.7 of the Composite Sublease (the “Prepayment Shortfall Obligation”). Indemnitor shall pay Purchaser the Prepayment Shortfall Obligation within ten (10) Business Days after written demand by Purchaser.
(c) This is a guaranty of payment and performance and not of collection. The liability of Indemnitor under this Agreement shall be direct and immediate and not conditional or contingent upon the pursuit of any remedies against the Company or any other person (including, without limitation, other guarantors, if any), nor against the collateral for the Note. Indemnitor waives any right to require that an action be brought against the Company or any other person or to require that resort be had to any collateral for the Note or to any balance of any deposit account or credit on the books of the Purchaser in favor of the Company or any other person. In the event, on account of the Bankruptcy Code, as amended, or any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which may be or become applicable, the Company shall be relieved of the Recourse Obligations or the Prepayment Shortfall Obligation, Indemnitor shall nevertheless be fully liable therefor. Upon the occurrence and during the continuance of an Event of Default, the Purchaser shall have the right to enforce its rights, powers and remedies (including, without limitation, foreclosure of all or any portion of the collateral for the Note) thereunder or hereunder, in any order, and all rights, powers and remedies available to the Purchaser in such event shall be non‑exclusive and cumulative of all other rights, powers and remedies provided thereunder or hereunder or by law or in equity. If the indebtedness and obligations guaranteed hereby are partially paid or discharged by reason of the exercise of any of the remedies available to the Purchaser, this Agreement shall nevertheless remain in full force and effect, and Indemnitor shall remain liable for all remaining indebtedness and obligations guaranteed hereby, even though any rights which Indemnitor may have against the Company may be destroyed or diminished by the exercise of any such remedy.
(d) Solely to the extent the Indemnitor is not a natural person, the Indemnitor shall keep proper books of record and account in which full, true and correct entries will be made of all dealings or transactions of or in relation to the business and affairs of the Indemnitor in accordance with GAAP and audited by a nationally recognized accounting firm (subject to deviations
Universal Logistics Holdings, Inc. Indemnity and Guaranty Agreement
therefrom as listed in footnotes or endnotes to the financial statements referenced in clause (i) below) and the Indemnitor will furnish to the Purchaser if requested by the Purchaser: (i) as soon as available and in any event within one hundred twenty (120) days after the close of each fiscal year of the Indemnitor in which the Indemnitor’s financial statements are not publicly available, a balance sheet for the Indemnitor for such fiscal year and in each case setting forth in comparative form the figures for the preceding fiscal year, and (ii) within the periods provided in clause (i) above, the written statement of the Indemnitor, signed by the Indemnitor stating whether or not it had actual knowledge of the existence as of the date of such financial statements and on the date of the certificate of any default by the Indemnitor under this Agreement or any Default or Event of Default (as defined in the Deed of Trust), and specifying the nature and period of existence thereof and the action each of the Company and the Indemnitor is taking and proposes to take with respect thereto. Purchaser’s duty under this section shall be to forward to the Certificateholders (as such term is defined in the Note Purchase Agreement) any information it receives from the Indemnitor within ten (10) days of receipt thereof but shall not have any obligation to verify the adequacy, completeness or sufficiency of any such information.
(e) After the date hereof, the Indemnitor represents and warrants that as of the date Indemnitor becomes party to this Agreement it has, and agrees that it shall at all times maintain, (i) a Tangible Net Worth of not less than the Minimum Tangible Net Worth Requirement (as such terms are defined below) and (ii) Liquid Assets (defined below) of not less than the Minimum Liquid Assets Requirement.
For purposes of this Section 1(e):
Universal Logistics Holdings, Inc. Indemnity and Guaranty Agreement
Universal Logistics Holdings, Inc. Indemnity and Guaranty Agreement
If at any time all or any part of any payment made by Indemnitor or received by the Purchaser from Indemnitor under or with respect to this Agreement is or must be rescinded or returned for any reason whatsoever (including, but not limited to, the insolvency, bankruptcy or reorganization of Indemnitor or the Company), then the obligations of Indemnitor hereunder shall, to the extent of the payment rescinded or returned, be deemed to have continued in existence, notwithstanding such previous payment made by Indemnitor, or receipt of payment by the Purchaser, and the obligations of Indemnitor hereunder shall continue to be effective or be reinstated, as the case may be, as to such payment, all as though such previous payment by Indemnitor had never been made.
To the extent permitted by law, Indemnitor hereby waives and agrees not to assert or take advantage of:
Universal Logistics Holdings, Inc. Indemnity and Guaranty Agreement
Universal Logistics Holdings, Inc. Indemnity and Guaranty Agreement
Universal Logistics Holdings, Inc. Indemnity and Guaranty Agreement
Universal Logistics Holdings, Inc. Indemnity and Guaranty Agreement
If to Indemnitor: |
Universal Logistics Holdings, Inc. 12755 E. Nine Mile Road Warren, Michigan 48089 Attention: Jude M. Beres Email: [email protected]
With a copy to:
|
Universal Logistics Holdings, Inc. Indemnity and Guaranty Agreement
|
Vistula PLC 100 Maple Park Boulevard, Suite 110 Saint Clair Shores, Michigan 48089 Attention: Edwin J. Lukas Email: [email protected]
|
|
|
If to the Purchaser: |
Wilmington Trust, National Association, as Trustee One Light Street, 15th Floor Baltimore, MD 21202 Attention: Sarah A. Stokes, Vice President With a copy to:
Philip M. J. Edison, Esq Chapman and Cutler LLP 320 South Canal Street, Suite 2700 Chicago, Illinois 60606 Email: [email protected]
|
Universal Logistics Holdings, Inc. Indemnity and Guaranty Agreement
Universal Logistics Holdings, Inc. Indemnity and Guaranty Agreement
Universal Logistics Holdings, Inc. Indemnity and Guaranty Agreement
Universal Logistics Holdings, Inc. Indemnity and Guaranty Agreement
[The remainder of this page intentionally left blank]
Universal Logistics Holdings, Inc. Indemnity and Guaranty Agreement
IN WITNESS WHEREOF, Indemnitor has executed this Indemnity and Guaranty Agreement as of the day and year first above written.
Indemnitor:
Universal Logistics Holdings, Inc., a Nevada corporation
By: |
/s/ Jude M. Beres |
Name: |
Jude M. Beres |
Title: |
Chief Financial Officer |
Exhibit 10.4
Execution Version
Hazardous Material Indemnity Agreement
Dated as of October 22, 2025
From
UDOT CTL-Funding, LLC
and
Universal Logistics Holdings, Inc.
to
Wilmington Trust, National Association, as Trustee of the Ford (Stanton, TN) Lease-Backed Pass-Through Trust
Hazardous Material
Indemnity Agreement
This Hazardous Material Indemnity Agreement (this “Agreement”), made as of October 22, 2025, is by UDOT CTL-Funding, LLC, a Tennessee limited liability company (the “Company”), and by Universal Logistics Holdings, Inc., a Nevada corporation (the “Principal”), jointly and severally (the Company and the Principal being referred to herein collectively as “Indemnitors” and individually as an “Indemnitor”), in favor of Wilmington Trust, National Association, as Trustee of the Ford (Stanton, TN) Lease-Backed Pass-Through Trust (the “Purchaser”).
W i t n e s s e t h:
Whereas, pursuant to a Note Purchase Agreement dated as of the date hereof between the Company and the Purchaser (the “Note Purchase Agreement”), the Company has agreed to offer and sell to the Purchaser, and said Purchaser has agreed to purchase from the Company, the Company’s 6.84% Senior Secured Note due November 15, 2034, in the original principal amount of $195,934,487.65 (the “Note”); and
Whereas, the Note is secured by, among other things, a Leasehold Deed of Trust, Security Agreement, Assignment of Leases and Rents and Fixture Filing Statement, from the Company to John Nielsen, as the Deed of Trust Trustee, for the benefit of the Purchaser (the “Deed of Trust”) and other documents dated of even date herewith between the Company and the Purchaser, encumbering the Company’s leasehold interest in that certain real property described on Exhibit A attached thereto and incorporated herein by this reference (the “Premises”) together with the Company’s interest in the buildings, structures, fixtures, additions, enlargements, extensions, modifications, repairs, replacements, improvements and appurtenances now standing or at any time constructed or placed upon the Premises (hereinafter, the “Improvements,” collectively with the Premises, the “Property”); and
Whereas, as a condition to purchasing the Note from the Company, the Purchaser has required that Indemnitors indemnify the Purchaser with respect to hazardous materials on, in, under, from or affecting the Property as herein set forth; and
Whereas, Principal is the owner and holder of a significant portion of the direct or indirect equity ownership interest in the Company, the purchase of the Note from the Company is of substantial benefit to the Principal and, therefore, Principal desires to indemnify the Purchaser pursuant to the terms of this Agreement; and
Whereas, capitalized terms not otherwise defined in this Agreement shall have the meaning ascribed to such terms in the Deed of Trust.
Now, Therefore, to induce the Purchaser to purchase the Note from the Company and in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Indemnitors hereby jointly and severally covenant and agree for the benefit of the Purchaser, as follows:
UDOT CTL-Funding, LLC Hazardous Material Indemnity Agreement
Indemnitors hereby assume liability for, and hereby jointly and severally agree to pay, protect, defend with attorneys, consultants and experts selected by Indemnitors and reasonably acceptable to the Purchaser, and save the Purchaser harmless from and against, and hereby indemnify the Purchaser from and against any and all damages, losses, liabilities, obligations, settlement payments, penalties, and out-of-pocket disbursements and expenses of any kind or of any nature whatsoever (including, without limitation, reasonable out-of-pocket attorneys’, consultants’ and experts’ fees and disbursements actually incurred in defending, settling or, to the extent that a claim, litigation or proceeding against the Indemnitors or any third party is necessary to pay or recover any of the foregoing not paid by Indemnitors, prosecuting any claim, litigation or proceeding) (collectively “Costs”) which at any time are actually imposed upon, incurred by or asserted or awarded against the Purchaser or the Property, and arising directly or indirectly from or out of: (i) the violation of any Environmental Legal Requirement (defined below) relating to or affecting the Property, whether or not caused by or within the control of Indemnitors; (ii) the presence, release or threat of release of any Hazardous Material (defined below) on, in, under or affecting all or any portion of the Property or, to the extent emanating from the Property, any surrounding areas, whether or not caused by or within the control of Indemnitors; (iii) the failure by Indemnitors to comply fully with the terms and conditions of this Agreement; (iv) the breach of any representation or warranty contained in this Agreement; or (v) the enforcement of this Agreement in which the Purchaser is the Prevailing Party (as defined below). “Costs” as used in this Agreement shall also include, unless the Purchaser has been paid all amounts owed under the Operative Agreements in full other than such diminution in value, any diminution in the value of the security afforded by the Property by reason of the failure of the Indemnitors to comply with the terms of this Agreement, or any future reduction of the sales price below the amount of the indebtedness secured by the Deed of Trust by reason of any matter set forth in this Section 1. Notwithstanding anything to the contrary contained herein, the foregoing indemnity shall specifically not include and Indemnitors shall not have any obligation or liability hereunder for any such costs relating to any Hazardous Material which is initially placed on, in or under the Property after the earliest to occur of the date on which (A) Purchaser, its nominee or designee, or a receiver or a purchaser of the Property, or any third-party acquires possession of the Property, whether by foreclosure, sale (pursuant to power of sale) or conveyance in lieu thereof, deed-in-lieu or otherwise as a result of a foreclosure or other exercise of remedies under the Deed of Trust or the other Operative Agreements, or in connection with an eminent domain action or proceeding or (B) the replacement of Principal occurs pursuant to Section 2.3(g) or Section 2.3(h) of the Deed of Trust (other than pursuant to any replacement for this Hazardous Material Indemnity Agreement executed by the Company in connection with a Transfer made pursuant to Section 2.3(g) of the Deed of Trust).
For the purposes of this Hazardous Material Indemnity Agreement, the following terms shall have the meanings set forth therefor below:
“Environmental Legal Requirement” shall mean any applicable local, state or federal law (including common law), statute, ordinance, rule, regulation or legally binding requirement relating to public health, or safety to the extent relating to the Hazardous Materials or otherwise relating to the environment, including, without limitation, relating to releases, discharges or emissions to air, water, land or groundwater, to the withdrawal or use of groundwater, to the use
- 2 -
UDOT CTL-Funding, LLC Hazardous Material Indemnity Agreement
and handling of polychlorinated biphenyls or asbestos, to the disposal, transportation, treatment, storage or management of solid or hazardous wastes or to exposure to toxic or hazardous materials, to the handling, transportation, discharge or release of gaseous or liquid substances and any regulation, order, notice or demand issued pursuant to such law, statute, ordinance, rule or regulation, in each case applicable to the property of the Company or the operation, construction or modification of any thereof, including without limitation the following: the Clean Air Act, the Federal Water Pollution Control Act, the Safe Drinking Water Act, the Toxic Substances Control Act, the Comprehensive Environmental Response Compensation and Liability Act as amended by the Superfund Amendments and Reauthorization Act of 1986, the Resource Conservation and Recovery Act as amended by the Solid and Hazardous Waste amendments of 1984, the Occupational Safety and Health Act, the Emergency Planning and Community Right-to-Know Act of 1986, the Hazardous Materials Transportation Act, the Solid Waste Disposal Act, all as amended, and any local, state or federal laws, statutes, ordinances, rules or regulations addressing similar matters, and any local, state or federal law, statute, ordinance, rule or regulation providing for financial responsibility for cleanup or other actions with respect to the release or threatened release of hazardous materials.
“Hazardous Material” shall mean any hazardous, toxic or harmful chemical, substance, waste, material, byproduct, pollutant, contaminant, compound or product, including without limitation, asbestos, lead, polychlorinated biphenyls, petroleum products (including crude oil or any fraction thereof), flammable explosives, radioactive materials, mold, mildew, infectious substances or raw materials which include hazardous constituents and any other substance or material the exposure, use, storage, transport, disposal or handling of which is regulated by any Environmental Legal Requirement.
If the Purchaser has brought a claim against the Indemnitors under this Agreement and the Indemnitors are required, whether by court ruling, negotiated settlement or other agreement to pay at least $1.00 to the Purchaser or the Indemnitors are required to take some action to remediate the Property or to take some other action required under the terms of this Agreement, then the “Prevailing Party” shall mean the Purchaser and, if the Indemnitors are not so obligated to pay at least $1.00 or to take any such remediation or other action, then the “Prevailing Party” shall mean the Indemnitors.
Except as otherwise disclosed by that certain environmental assessment report described on Schedule I hereto (collectively, the “Environmental Report”), Indemnitors hereby represent and warrant to and covenant and agree with the Purchaser that as of the date hereof, Indemnitors have not received any written notice and do not otherwise have actual knowledge:
- 3 -
UDOT CTL-Funding, LLC Hazardous Material Indemnity Agreement
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UDOT CTL-Funding, LLC Hazardous Material Indemnity Agreement
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UDOT CTL-Funding, LLC Hazardous Material Indemnity Agreement
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UDOT CTL-Funding, LLC Hazardous Material Indemnity Agreement
If at any time all or any part of any payment made by Indemnitors or received by the Purchaser from Indemnitors under or with respect to this Agreement is or must be rescinded or returned for any reason whatsoever (including, but not limited to, the insolvency, bankruptcy or reorganization of either Indemnitor), then the obligations of Indemnitors hereunder shall, to the extent of the payment rescinded or returned, be deemed to have continued in existence, notwithstanding such previous payment made by Indemnitors, or receipt of payment by the Purchaser, and the obligations of Indemnitors hereunder shall continue to be effective or be reinstated, as the case may be, as to such payment, all as though such previous payment by Indemnitors had never been made.
To the extent permitted by law, Indemnitors hereby waive and agree not to assert or take advantage of:
- 7 -
UDOT CTL-Funding, LLC Hazardous Material Indemnity Agreement
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UDOT CTL-Funding, LLC Hazardous Material Indemnity Agreement
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UDOT CTL-Funding, LLC Hazardous Material Indemnity Agreement
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UDOT CTL-Funding, LLC Hazardous Material Indemnity Agreement
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UDOT CTL-Funding, LLC Hazardous Material Indemnity Agreement
If to an Indemnitor: Universal Logistics Holdings, Inc.
UDOT CTL-Funding, LLC
12755 E. Nine Mile Road
Warren, Michigan 48089
Attention: Jude M. Beres
Email: [email protected]
With a copy to:
Vistula PLC
100 Maple Park Boulevard, Suite 110
Saint Clair Shores, Michigan 48081
Attention: Edwin J. Lukas
Email: [email protected]
If to the Purchaser: Wilmington Trust, National Association, as Trustee of the Ford (Stanton, TN) Lease-Backed Pass-Through Trust
One Light Street, 15th Floor
Mail Code: MD2-L140
Baltimore, Maryland 21202
Attention: Corporate Trust Department
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UDOT CTL-Funding, LLC Hazardous Material Indemnity Agreement
With a copy to:
Philip M. J. Edison, Esq.
Chapman and Cutler LLP
320 South Canal Street, Suite 2700
Chicago, Illinois 60606
Email: [email protected]
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UDOT CTL-Funding, LLC Hazardous Material Indemnity Agreement
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UDOT CTL-Funding, LLC Hazardous Material Indemnity Agreement
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UDOT CTL-Funding, LLC Hazardous Material Indemnity Agreement
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UDOT CTL-Funding, LLC Hazardous Material Indemnity Agreement
Notwithstanding anything to the contrary set forth herein, no event of default shall occur under this Agreement unless a default shall occur in the observance or performance of any provision of this Agreement which is not remedied within thirty (30) days after the earlier of (i) written notice thereof from the Purchaser to the Indemnitors, or (ii) the first date on which an officer, member, partner, trustee or beneficial owner of each of the Indemnitors shall have actual knowledge of such a default; provided, however, that (w) if the Indemnitors cannot, with the application of diligent good faith effort, cure such default within such 30-day period, then such 30-day period may be extended up to an additional ninety (90) days if (I) the Indemnitors continue to diligently in good faith attempt to cure such default, (II) the Indemnitors provide a written report to the Purchaser describing the nature of such default, the actions planned to effectuate such cure and the estimated time to cure, and (III) at the end of each 30-day period, the Indemnitors provide to the Purchaser a written update of the report provided in clause (II) above, (x) if the default pertains to an obligation of the Indemnitors that is also an obligation of the Tenant under the Composite Sublease or the Authority under the Prime Lease, then the cure period set forth in this Section 9 shall commence after the expiration of the applicable notice and cure period that applies to the Tenant under the Composite Sublease or the Authority under the Prime Lease, (y) no default shall result to the extent that the Tenant is lawfully exercising its rights under the Composite Sublease in accordance with the terms thereof except to the extent that the Tenant is exercising any rights or remedies as a result of a default by the Company as landlord under the Composite Sublease or the Authority is lawfully exercising its rights under the Prime Lease in accordance with the terms thereof except to the extent that the Authority is exercising any rights or remedies as a result of a default by the Tenant as lessee under the Prime Lease, and (z) each Indemnitor that has actual
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UDOT CTL-Funding, LLC Hazardous Material Indemnity Agreement
knowledge of any default hereunder shall provide prompt written notice of any such default hereunder to the other Indemnitor.
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In Witness Whereof, each Indemnitor has executed this Hazardous Material Indemnity Agreement as of the day and year first above written.
Indemnitors:
UDOT CTL-Funding, LLC, a Tennessee limited liability company
By: |
/s/ Jude M. Beres |
Name: |
Jude M. Beres |
Title: |
Chief Financial Officer |
Universal Logistics Holdings, Inc., a Nevada corporation
By: |
/s/ Steven A. Fitzpatrick |
Name: |
Steven A. Fitzpatrick |
Title: |
Secretary |
Schedule I
Environmental Report
Phase I Environmental Site Assessment for Blue Oval City – Ford Parts Distribution Center, Fredonia Road & Stanton-Somerville Road, Stanton, Haywood County, Tennessee 38069, prepared by UES Consulting Services, Inc., project number 1759.25, dated September 9, 2025.
Schedule I
(to Hazardous Material Indemnity Agreement)