Exhibit 99.2
ASSET PURCHASE AGREEMENT
DATED AS OF JULY 3, 2007
BY AND BETWEEN
ATWOOD ACQUISITION CO. LLC
AS PURCHASER
AND
ATWOOD MOBILE PRODUCTS, INC.
AS SELLER
TABLE OF CONTENTS
PAGE
----
ARTICLE I DEFINITIONS.................................................... 1
1.1 Certain Definitions............................................. 1
1.2 Terms Defined Elsewhere in this Agreement....................... 8
1.3 Other Definitional and Interpretive Matters..................... 10
ARTICLE II PURCHASE AND SALE OF ASSETS; ASSUMPTION OF LIABILITIES........ 11
2.1 Purchase and Sale of Assets..................................... 11
2.2 Excluded Assets................................................. 12
2.3 Assumption of Liabilities....................................... 13
2.4 Excluded Liabilities............................................ 13
2.5 Further Conveyances and Assumptions............................. 14
2.6 Bulk Sales Laws................................................. 14
2.7 Non-Assignment of Assumed Contracts............................. 14
ARTICLE III CONSIDERATION................................................ 15
3.1 Consideration................................................... 15
3.2 Purchase Price Deposit.......................................... 15
3.3 Payment of Purchase Price....................................... 15
3.4 Calculation of Final Purchase Price............................. 16
3.5 Prorations; Prepaid Expenses.................................... 17
ARTICLE IV CLOSING AND TERMINATION....................................... 17
4.1 Closing Date.................................................... 17
4.2 Deliveries by Seller............................................ 17
4.3 Deliveries by Purchaser......................................... 19
4.4 Termination of Agreement........................................ 19
4.5 Procedure Upon Termination...................................... 20
4.6 Effect of Termination; Break-Up Fee............................. 20
ARTICLE V REPRESENTATIONS AND WARRANTIES OF SELLERS...................... 21
5.1 Organization and Good Standing.................................. 21
5.2 Authorization of Agreement...................................... 21
5.3 Conflicts; Consents of Third Parties............................ 22
5.4 Title to Purchased Assets....................................... 22
5.5 Real Property................................................... 22
5.6 Intellectual Property........................................... 24
5.7 Employee Benefits............................................... 25
5.8 Litigation...................................................... 25
5.9 Compliance with Laws............................................ 25
5.10 Financial Advisors.............................................. 25
5.11 Environmental Matters........................................... 25
5.12 Financial Statements............................................ 26
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TABLE OF CONTENTS
(CONTINUED)
5.13 Taxes........................................................... 26
5.14 Labor Activities................................................ 26
5.15 Assumed Contracts and Assumed Leases............................ 27
5.16 Sufficiency of Purchased Assets................................. 27
5.17 Customers and Suppliers......................................... 27
5.18 Certificate of Service.......................................... 27
5.19 No Other Representations or Warranties; Schedules............... 27
5.20 Survival of Representations and Warranties...................... 28
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF PURCHASER................... 28
6.1 Organization and Good Standing.................................. 28
6.2 Authorization of Agreement...................................... 28
6.3 Conflicts; Consents of Third Parties............................ 29
6.4 Litigation...................................................... 29
6.5 Financial Advisors.............................................. 29
6.6 Financial Capability............................................ 29
6.7 Condition of the Business....................................... 29
6.8 Adequate Assurances Regarding Executory Contracts............... 30
ARTICLE VII BANKRUPTCY COURT MATTERS..................................... 30
7.1 Bankruptcy Actions.............................................. 30
7.2 Seller Actions.................................................. 31
7.3 Purchaser Actions............................................... 31
7.4 Adequate Assurances............................................. 31
7.5 Support of Sale Order........................................... 31
7.6 Assignment of Contracts......................................... 31
7.7 Cure of Defaults................................................ 31
7.8 Competing Transaction........................................... 32
7.9 Notice to Potential Claimants................................... 32
ARTICLE VIII COVENANTS................................................... 32
8.1 Access to Information........................................... 32
8.2 Conduct of the Business Pending the Closing..................... 33
8.3 Regulatory Approvals............................................ 34
8.4 Further Assurances.............................................. 35
8.5 Bonds, Letters of Credit, Etc................................... 36
8.6 Confidentiality................................................. 37
8.7 Non-solicitation................................................ 37
8.8 Seller Non-compete.............................................. 38
8.9 Purchaser Non-compete........................................... 38
8.10 Exclusivity..................................................... 39
8.11 Preservation of Records......................................... 39
8.12 Publicity....................................................... 40
8.13 Supplementation and Amendment of Schedules...................... 40
8.14 Cooperation with Seller......................................... 40
8.15 Dura Marks...................................................... 40
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TABLE OF CONTENTS
(CONTINUED)
8.16 License Agreement............................................... 41
8.17 Non Disturbance Agreements...................................... 41
8.18 Landlord Waivers................................................ 41
8.19 Title Policies.................................................. 41
8.20 Environmental Waiver............................................ 42
8.21 Responsibility for Excluded Liabilities......................... 42
8.22 Transition Services............................................. 42
ARTICLE IX EMPLOYEES AND EMPLOYEE BENEFITS............................... 42
9.1 Employment...................................................... 42
9.2 Employee Benefits in General.................................... 43
9.3 Health & Welfare Claims......................................... 43
9.4 Retirement Plans................................................ 44
ARTICLE X CONDITIONS TO CLOSING.......................................... 44
10.1 Conditions Precedent to Obligations of Purchaser................ 44
10.2 Conditions Precedent to Obligations of Sellers.................. 45
10.3 Conditions Precedent to Obligations of Purchaser and Sellers.... 45
10.4 Frustration of Closing Conditions............................... 46
ARTICLE XI TAXES......................................................... 46
11.1 Transfer Taxes.................................................. 46
11.2 Purchase Price Allocation....................................... 46
11.3 Miscellaneous................................................... 46
ARTICLE XII MISCELLANEOUS................................................ 46
12.1 Expenses........................................................ 46
12.2 Injunctive Relief............................................... 47
12.3 Submission to Jurisdiction; Consent to Service of Process....... 47
12.4 Waiver of Right to Trial by Jury................................ 47
12.5 Entire Agreement; Amendments and Waivers........................ 47
12.6 Parties in Interest............................................. 48
12.7 Governing Law................................................... 48
12.8 Notices......................................................... 48
12.9 Severability.................................................... 49
12.10 Binding Effect; Assignment...................................... 49
12.11 Non-Recourse.................................................... 49
12.12 Termination of Representations and Warranties................... 50
12.13 Warranties Exclusive............................................ 50
12.14 Counterparts.................................................... 50
12.15 Mutual Drafting................................................. 50
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TABLE OF CONTENTS
(CONTINUED)
Schedules
1 Selling Affiliates
1.1(a) Assumed Leases
1.1(b) Domain Names
1.1(c) Dura Marks
1.1(d) Knowledge of Seller
1.1(e) Patents
1.1(f) Permitted Exceptions
1.1(g) Trademarks
1.1(h) Accounting Principles
2.1(b)(i) Owned Real Property
2.1(b)(ii) Leased Real Property
2.1(c) Assumed Contracts
2.2(m) Other Excluded Assets
5.1 Jurisdictions, Qualifications to do Business, Licenses
5.3(a) No Conflicts
5.3(b) Consents
5.5(a) Exceptions to Owned Real Property
5.5(b) Exceptions to Real Property
5.5(c) Exceptions to Leased Real Property
5.5(d) Exceptions to Facilities
5.6 Intellectual Property
5.7 Employee Benefits Plans
5.8 Litigation
5.9(a) Compliance with Laws
5.9(b) Permits
5.10 Financial Advisors
5.11 Environmental Matters
5.12 Financial Statements
5.13 Taxes
5.14 Labor Activities
5.17 Customers and Suppliers
5.18 Certificate of Service the United States Trustee
6.3(a) Conflicts
8.2(a) Exceptions to Conduct of Business
8.2(b) Exceptions to Negative Covenants
8.4(c) Shared Contracts
8.5 Bonds, Letters of Credit, Etc.
8.16 Patents Licensed in Connection with the Mass Transit Business
11.2 Purchase Price Allocation
Exhibits
A Bill of Sale
B Assignment and Assumption Agreement
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TABLE OF CONTENTS
(CONTINUED)
C Special Warranty Deed
D Assignment and Assumption of Lease
E West Union Lease Agreement
F License Agreement (Intellectual Property)
G Sale Motion
H Bidding Procedures Order
I Sale Order
J Transition Services Agreement
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ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT, dated as of July 3, 2007 (this "Agreement"),
by and among Atwood Mobile Products, Inc., an Illinois corporation ("Seller"),
certain subsidiaries of Seller identified on the signature pages hereto
(collectively with Seller, the "Sellers") and Atwood Acquisition Co. LLC, a
Delaware limited liability company ("Purchaser"). (Each of Sellers and Purchaser
is a "Party" and collectively they are the "Parties" to this Agreement).
WITNESSETH:
WHEREAS, Sellers, together with those Affiliates of Seller identified on
Schedule 1 hereto (each such Affiliate is sometimes hereinafter referred to as a
"Selling Affiliate"), owns the Purchased Assets; WHEREAS, Seller is a direct
wholly owned subsidiary of Dura Operating Corp., a Delaware corporation
("Dura");
WHEREAS, on October 30, 2006 (the "Petition Date"), Dura and its debtor
Affiliates, including Seller, filed voluntary petitions for relief under chapter
11 of the United States Code, jointly administered as Case No. 06-11202 (KJC)
(the "Chapter 11 Cases"); and
WHEREAS, on the terms and subject to the conditions set forth in this Agreement,
Sellers desire to sell, transfer and assign to Purchaser, and Purchaser desires
to purchase, acquire and assume from Sellers, pursuant to sections 363 and 365
of the Bankruptcy Code, all of the Purchased Assets and Assumed Liabilities to
the extent used in connection with or related to the Business as presently
conducted, all as more specifically provided herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter contained, the parties hereby agree as
follows:
DEFINITIONS
Certain Definitions.
For purposes of this Agreement, the following terms shall have the
meanings specified in this Section 1.1:
"Affiliate" means, with respect to any Person, any other Person that,
directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common
control with, such Person, and the term "control" (including the terms
"controlled by" and "under common control with") means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of such Person, whether through ownership of voting securities, by
contract or otherwise.
"Applicable Rate" means the prime rate of interest as published from
time to time in The Wall Street Journal.
"Assumed Leases" means the leases set forth on Schedule 1.1(a).
"Bankruptcy Code" means Title 11 of the United States Code.
"Bankruptcy Court" means the United States Bankruptcy Court for the
District of Delaware or such other court having jurisdiction over the Chapter 11
Cases originally administered in the United States Bankruptcy Court of the
District of Delaware.
"Business" means the business of Sellers, the Selling Affiliates and
their respective Subsidiaries relating to the design, manufacture, marketing,
distribution and sale of window (glass or vinyl), door, glass, aluminum,
hardware, appliance and electronic products for recreational and (solely with
respect to the Sellers) other vehicles, manufactured housing and (solely with
respect to the Sellers) other markets, including the products sold under the
Atwood, Creation, Kemberly, Wedgewood, Spec-Temp, DURALeg, Hydro Flame and
Levelegs brands, but excluding the Mass Transit Business and the assets and
operations of the China Joint Venture.
"Business Day" means any day of the year on which national banking
institutions in New York City are open to the public for conducting business and
are not required or authorized to close.
"COBRA" means Part 6 of Subtitle B of Title I of ERISA, Section 4980B
of the Code and any similar state law.
"Claims" means any and all claims as defined in section 101(5) of the
Bankruptcy Code.
"Closed Facilities" means the Sellers' facilities in Selinsgrove,
Pennsylvania and LaGrange, Indiana.
"Closing Working Capital" means the Working Capital as shown on the
Closing Statement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Contract" means any oral or written contract, indenture, note, bond,
lease (excluding any Assumed Lease), license or other agreement.
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"Copyrights" means all copyrightable works, and all United States
registered copyrights and applications therefor, that are used primarily by
Sellers in connection with the Business.
"Dip Financing" means (a) the Senior Secured Super-Priority Debtor in
Possession Revolving Credit and Guaranty Agreement, dated as of November 30,
2006, by and among Dura, Dura Automotive Systems, Inc., certain subsidiaries of
Dura Automotive Systems, Inc. and Dura, Goldman Sachs Credit Partners L.P.,
General Electric Capital Corporation, Barclay's Capital, and Bank of America;
and (b) the Senior Secured Super-Priority Debtor In Possession Term Loan and
Guaranty Agreement, dated as of October 31, 2006, by and among Dura, Dura
Automotive Systems, Inc., certain subsidiaries of Dura Automotive Systems, Inc.
and Dura, the Lenders party thereto from time to time, Goldman Sachs Credit
Partners L.P., Barclays Capital, and Bank of America.
"Domain Names" means the internet domain names owned or licensed by
Sellers and/or the Selling Affiliates that are listed or described on Schedule
1.1(b), and all registrations, applications and renewals related to the
foregoing.
"Dura Marks" means all registered and unregistered trademarks, service
marks, domain names, corporate names, brand names, design, logos, slogans, and
other indicia of origin incorporating the name Dura or Excel or any other name
set forth on Schedule 1.1(c), and any derivatives or variants thereof.
"Employees" means all individuals, whether or not actively at work,
who are employed by Seller or its Subsidiaries in connection with the Business.
"Environmental Law" means any applicable Law that relates to,
concerns, governs, or otherwise imposes liability or standards of conduct
concerning pollution, protection of the environment, protection of human or
occupational health from Hazardous Substances, Releases or threatened Releases
of Hazardous Substances or the use, storage, treatment, transportation,
manufacture, refinement, handling, production or disposal of Hazardous
Substances.
"Equipment" means all machinery, equipment, furniture, trade fixtures,
furnishings, vehicles, leasehold improvements and other tangible personal
property used primarily in connection with the Business as presently conducted,
including, without limitation, all such artwork, desks, chairs, tables,
Hardware, copiers, telephone lines and numbers, facsimile machines and other
telecommunication equipment, cubicles and miscellaneous office furnishings and
supplies.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Estimated Working Capital" means $48,150,000.
"Excluded Matter" means any one or more of the following: (i) the
effect of any change in the United States' or foreign economies or in the
securities or financial markets in
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general, in either case which does not have a materially disproportionate effect
on the Sellers or the Business; (ii) the effect of any change that generally
affects any industry in which Sellers operate but which does not have a
materially disproportionate effect on the Sellers or the Business; (iii) the
effect of any change arising in connection with earthquakes, hostilities, acts
of war, sabotage or terrorism or military actions or any escalation or material
worsening of any such hostilities, acts of war, sabotage or terrorism or
military actions existing or underway as of the date hereof; (iv) the effect of
any action taken by Purchaser or its Affiliates with respect to the transactions
contemplated hereby or with respect to Sellers, including their respective
employees; (v) any effect resulting from the public announcement of this
Agreement, compliance with terms of this Agreement or the consummation of the
transactions contemplated by this Agreement; (vi) the matters disclosed in Dura
Automotive Systems, Inc.'s (A) Annual Report on Form 10-K for the twelve-month
period ended December 31, 2005, (B) Quarterly Reports on Form 10-Q for the
three-month periods ended March 31, 2006, June 30, 2006 and September 30, 2006
or (C) filings on Form 8-K made after November 13, 2006 and prior to the date
hereof, each in the form filed with the Securities and Exchange Commission; or
(vii) any effect resulting from the filing of the Chapter 11 Cases and
reasonably anticipated effects thereof.
"Facilities" means the buildings, improvements and fixtures located on
the Owned Real Property and the Leased Real Property.
"GAAP" means generally accepted accounting principles in the United
States as applied in a manner consistent with the Seller's historical accounting
policies; except that the parties acknowledge that, for purposes of this
Agreement, intercompany accounts between the Sellers and Dura (and Dura's other
Subsidiaries) have been excluded from the Financial Summary and other financial
information provided by the Sellers.
"Governmental Body" means any government or governmental or regulatory
body thereof, or political subdivision thereof, whether foreign, federal, state
or local, or any agency, instrumentality or authority thereof, or any court or
arbitrator (public or private).
"Hardware" means any and all computer and computer-related hardware,
including, without limitation, computers, file servers, facsimile servers,
scanners, color printers, laser printers and networks.
"Hazardous Substances" means: (i) petroleum or petroleum products,
including gasoline, diesel fuel, jet fuel, motor oil, synthetic oil, waste or
used oil, heating oil, kerosene and any other product containing or produced
from crude petroleum; (ii) asbestos in any form; (iii) transformers or other
equipment containing polychlorinated biphenyls; (iv) urea formaldehyde foam
insulation; (v) radioactive materials; (vi) lead-based paint; (vii) any
substance, material, chemical or waste that is regulated by any local, federal
or state Law, or Governmental Body, including, but not limited to, any material
or substance that is defined as a "hazardous waste," "hazardous material,"
"hazardous substance," "extremely hazardous substance," "toxic substance,"
"toxic pollutant" or "restricted hazardous waste" under any provision of local,
state or federal Law; and (viii) any substance, material, chemical or waste that
is regulated as hazardous, radioactive, toxic or as a pollutant by Environmental
Laws, including, without limitation, by the Federal Water Pollution Control Act,
as amended (33 U.S.C. Sections 1251 et seq.),
4
the Resource Conservation and Recovery Act, as amended (42 U.S.C. Sections 6901
et seq.), the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (42 U.S.C. Sections 9601 et seq.), and the Clean Air
Act, as amended (42 U.S.C. Sections 7401 et seq.).
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended.
"Inventory" means all finished goods, work in process, raw materials,
goods in transit, goods at customer sites and other inventory or goods held for
sale of a person in all forms, wherever located, now or hereafter existing.
"Knowledge of Seller" means the actual knowledge of those officers and
directors of Sellers identified on Schedule 1.1(d).
"Law" means any federal, state, local or foreign law, common law,
statute, code, ordinance, rule, regulation, decree, order or legally binding
decision or determination.
"Legal Proceeding" means any judicial, administrative or arbitral
actions, suits, proceedings (public or private) or claims or any proceedings by
or before a Governmental Body.
"Liability" means any debt, liability or obligation (whether direct or
indirect, known or unknown, absolute or contingent, accrued or unaccrued,
liquidated or unliquidated, or due or to become due) and including all costs and
expenses relating thereto.
"Lien" means any defect or imperfection in title, encumbrance, lien,
Claim, charge, pledge, mortgage, deed of trust, security interest, lease,
sublease, license, option, right of first refusal, easement, right-of-way,
servitude, covenant, condition, proxy, voting trust or agreement or transfer
restriction under any shareholder or similar agreement.
"Mass Transit Business" means the non-vinyl window business, including
transom, egress and anti-graffiti windows, in each case related to bus, rail,
plane or public transportation vehicles.
"Material Impairment" means any event, circumstance, development,
change or effect that, individually or in the aggregate, with all other events,
circumstances, developments changes and effects, has or could reasonably be
expected to result in (i) a Liability for the Sellers or the Business that would
be an Assumed Liability in an amount equal to or greater than $3,000,000 or (ii)
an adverse effect of 10% or more on the business, assets, properties, results of
operations or financial condition of Sellers (taken as a whole) or the Business.
"Material Adverse Effect" means any change, effect, development,
event, occurrence or state of facts that has or could reasonably be expected to
have, individually or in the aggregate, (i) a material adverse effect on the
business, assets, properties, results of operations or financial condition of
Sellers (taken as a whole) or the Business; or (ii) a material adverse effect on
the ability of Sellers to consummate the transactions contemplated by this
Agreement or perform their obligations under this Agreement, in each case other
than an effect resulting from an Excluded Matter.
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"Order" means any order, injunction, judgment, decree, ruling, writ,
assessment or arbitration award of a Governmental Body.
"Ordinary Course of Business" means the ordinary and usual course of
normal day-to-day operations of the Business since the Petition Date through the
date hereof.
"Patents" means the United States patents and patent applications
owned or licensed by Sellers and/or the Selling Affiliates that are identified
on Schedule 1.1(e) hereof, including, without limitation, any continuations,
divisionals, continuations in part, or reissues of patent applications and
patents issuing thereon.
"Permits" means any approvals, authorizations, consents, licenses,
permits (including permits by rule) or certificates of or issued by a
Governmental Body.
"Permitted Exceptions" means: (i) Liens disclosed in policies of
owner's or lender's title insurance relating to any Owned Real Property that
have been made available to Purchaser prior to the date hereof; (ii) all
encroachments, strips, gores, buildings and other improvements, and other
matters with respect to each Facility that are shown on the associated survey
delivered to Purchaser prior to the date hereof; (iii) Liens for Taxes which are
not delinquent as of the Closing Date or the amount or validity of which is
being contested in good faith by appropriate proceedings, provided an
appropriate reserve for such Taxes is established in accordance with GAAP; (iv)
mechanics', carriers', workers', repairers', materialmen's and similar Liens
arising or incurred in the Ordinary Course of Business, for amounts which are
not due and payable as of the Closing Date or the amount or validity of which is
being contested in good faith by appropriate proceedings, provided an
appropriate reserve for such Liens is established in accordance with GAAP; (v)
all Laws provided that such Laws have not been violated by the current use and
occupancy of any Facility; (vi) title of a lessor under a capital or operating
lease; (vii) licenses of, and any restrictions or conditions on the transfer or
assignment of licenses of, intellectual property or other proprietary rights;
(viii) any other Liens which will be discharged on or before the Closing Date in
connection with the Sale Order or any other actions of the Bankruptcy Court; and
(ix) all Liens set forth on Schedule 1.1(f).
"Person" means any individual, corporation, limited liability company,
partnership, firm, joint venture, association, joint-stock company, trust,
unincorporated organization, Governmental Body or other entity.
"Products" means any and all products developed, manufactured,
marketed or sold by the Business.
"Purchased Intellectual Property" means all of Sellers' and the
Selling Affiliates' transferable rights and interests in and to the Patents,
Trademarks, Domain Names, Trademark Rights and Copyrights and all Technology
that is primarily used in the Business, in each case subject to (i) any rights
therein previously granted to a third party and (ii) the rights granted Sellers
pursuant to the License Agreement.
"Receivables" means all accounts receivable, credits, rights to
rebates, refunds and reimbursements related to the Business.
6
"Release" means any release, spill, leak, emission, discharge,
deposit, pumping, pouring, emptying, discharging, injecting, escaping, leaching,
disposing, dumping, dispersion or migration of a Hazardous Substance into any
indoor or outdoor environmental media (including, without limitation, soil,
sediments, land surface, subsurface strata, air or water (including, without
limitation, territorial, coastal and inland surface waters, groundwater, streams
and water in drains or sewers)), including, without limitation: (i) the movement
of uncontained Hazardous Substances through or in any environmental media
located within any building, structure or property; (ii) the movement of
uncontained Hazardous Substances off-site from any property; and (iii) the
abandonment of barrels, containers or other closed receptacles containing
Hazardous Substances on any property.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company or other business entity of which (i) if
a corporation, a majority of the total voting power of shares of stock entitled
to vote in the election of directors thereof is at the time owned or controlled,
directly or indirectly, by that Person or (ii) if a partnership, limited
liability company or other business entity, a majority of the partnership,
limited liability company or other similar ownership interest thereof is at the
time owned or controlled, directly or indirectly, by such Person.
"Tax Authority" means any federal, state, local or foreign government,
or any agency, instrumentality or employee thereof, charged with the
administration of any Law relating to Taxes.
"Tax Return" means all returns, declarations, reports, estimates,
information returns and statements required to be filed in respect of any Taxes.
"Taxes" means (i) all federal, state, local or foreign taxes, charges
or other assessments, including, without limitation, all net income, gross
receipts, capital, sales, use, ad valorem, value added, transfer, franchise,
profits, inventory, capital stock, license, withholding, payroll, employment,
social security, unemployment, excise, severance, stamp, occupation, property
and estimated taxes; and (ii) all interest, penalties, fines, additions to tax
or additional amounts imposed by any Tax Authority in connection with any item
described in clause (i).
"Technology" means, collectively, all designs, formulae, algorithms,
procedures, methods, techniques, know-how, research and development, technical
data, programs, subroutines, tools, materials, specifications, processes,
inventions (whether patentable or unpatentable and whether or not reduced to
practice), apparatus, creations, improvements, works of authorship and other
similar materials, and all recordings, graphs, drawings, reports, analyses, and
other writings, and other tangible embodiments of the foregoing, in any form
whether or not specifically listed herein, and all related technology, that are
used in, incorporated in, embodied in, displayed by or relate to, or are used in
the design, development, reproduction, maintenance or modification of, any of
the Products.
"Trademarks" means the United States trademark registrations and
applications for trademark registration of the Business owned or licensed by
Sellers and/or the Selling
7
Affiliates that are identified on Schedule 1.1(g) hereof, together with the
goodwill associated with any of the foregoing, and all applications,
registrations and renewals thereof.
"Trademark Rights" means all common law rights in the United States in
trade names, logos, slogans, designs, trade dress, and unregistered trademarks
and service marks, together with the goodwill associated with any of the
foregoing, which, in each case, are primarily used by Sellers and/or the Selling
Affiliates in connection with the Business.
"WARN Act" means the Worker Adjustment and Retraining Notification Act
of 1988, as amended, and any similar state Law, and the rules and regulations
thereunder.
"Working Capital" means, as of any date of determination, the excess
of total Current Assets (excluding cash and cash equivalents) as of such date
minus total Current Liabilities as of such date, determined in accordance with
GAAP and, to the extent in accordance with GAAP, the accounting methods,
policies, practices, procedures, classifications and/or estimation methodologies
set forth on Schedule 1.1(h) (the "Accounting Principles") and excluding all
items relating to Taxes. In determining total Current Assets and total Current
Liabilities hereunder, (i) all accounting entries shall be taken into account
regardless of their amount and all known errors and omissions corrected; (ii)
all proper adjustments shall be made; (iii) reserves for all liabilities and
obligations for which reserves are appropriate in accordance with GAAP and, to
the extent in accordance with GAAP, the Accounting Principles shall be included;
and (iv) no fees, expenses or costs related to the transactions contemplated
hereby shall be included as an asset or a liability in the determination of
Working Capital. "Current Assets" shall mean the aggregate of current assets of
the Sellers and the Selling Affiliates included in the Purchased Assets,
together with all of Sellers' Deposits, and "Current Liabilities" shall mean the
aggregate of current liabilities included in the Assumed Liabilities, in each
case as determined in accordance with GAAP and, to the extent in accordance with
GAAP, the Accounting Principles.
Terms Defined Elsewhere in this Agreement. For purposes of this
Agreement, the following terms have meanings set forth in the sections
indicated:
Term Section
- ---- -------
Accounting Firm 3.4(a)
Accounting Principles (in Working Capital definition)
Agreement Preamble
Antitrust Division 8.3(b)
Antitrust Laws 8.3(c)
Asset Acquisition Statement 11.2
Assumed Contracts 2.1(c)
Assumed Liabilities 2.3
Bidding Procedures Order 7.1
Break-Up Fee 4.6(c)
Chapter 11 Cases Recitals
China Joint Venture 2.2(l)
Closing 4.1
Closing Date 4.1
8
Term Section
- ---- -------
Closing Statement 3.4(a)
Competing Bid 7.8
Compromised Liabilities 2.4(d)
Confidential Information 8.6
Confidentiality Agreement 8.6
Current Assets (in Working Capital definition)
Current Liabilities (in Working Capital definition)
Deposit 3.2
Dura Recitals
Effective Time 4.1
Employee Plans 5.7
Escrow Agent 3.2
Escrow Agreement 3.2
Escrowed Funds 3.2
Excluded Assets 2.2
Excluded Liabilities 2.4
Expense Reimbursement 4.6(c)
Financial Summary 5.12
FTC 8.3(b)
Lease Assignments 4.2(d)
Leased Real Property 2.1(b)
License Agreement 8.16
Notice of Disagreement 3.4(a)
Owned Real Property 2.1(b)
Party Recitals
PBGC 8.14
Petition Date Recitals
Preliminary Closing Working Capital 3.3
Prepaid and Accrued Expenses 3.4(b)
Purchased Assets 2.1
Purchase Price 3.1
Purchaser Recitals
Purchaser Documents 6.2
Purchaser 401(k) Plan 9.4
Purchaser Plans 9.2(b)
Purchaser Restricted Business 8.9
Purchaser Revenue Limits 8.9
Requested Party 8.11(b)
Restricted Business 8.8
Retained Businesses 8.16(b)
Revenue Limits 8.8
Revised Statements 11.2
Sale Motion 7.1
Sale Order 7.1
9
Term Section
- ---- -------
Selling Affiliate Recitals
Seller(s) Recitals
Seller 401(k) Plan 9.3
Seller Documents 5.2
Sellers' Deposits 2.1(k)
Shared Contracts 8.4(c)
Termination Date 4.4(a)
Transfer Taxes 11.1
Transferred Employees 9.1(a)
Transition Services Agreement 4.2(k)
West Union Lease 4.2(e)
Other Definitional and Interpretive Matters.
UNLESS OTHERWISE EXPRESSLY PROVIDED, FOR PURPOSES OF THIS AGREEMENT,
THE FOLLOWING RULES OF INTERPRETATION SHALL APPLY:
Calculation of Time Period. When calculating the period of time before
which, within which or following which any act is to be done or step taken
pursuant to this Agreement, the date that is the reference date in calculating
such period shall be excluded. If the last day of such period is a non-Business
Day, the period in question shall end on the next succeeding Business Day.
Dollars. Any reference in this Agreement to $ shall mean U.S. dollars.
Exhibits/Schedules. All Exhibits and Schedules annexed hereto or
referred to herein are hereby incorporated in and made a part of this Agreement
as if set forth in full herein. Any capitalized terms used in any Schedule or
Exhibit but not otherwise defined therein shall be defined as set forth in this
Agreement.
Gender and Number. Any reference in this Agreement to gender shall
include all genders, and words imparting the singular number only shall include
the plural and vice versa.
Headings. The provision of a Table of Contents, the division of this
Agreement into Articles, Sections and other subdivisions and the insertion of
headings are for convenience of reference only and shall not affect or be
utilized in construing or interpreting this Agreement. All references in this
Agreement to any "Section" are to the corresponding Section of this Agreement
unless otherwise specified.
Herein. The words such as "herein," "hereinafter," "hereof" and
"hereunder" refer to this Agreement as a whole and not merely to a subdivision
in which such words appear unless the context otherwise requires.
THE PARTIES HERETO HAVE PARTICIPATED JOINTLY IN THE NEGOTIATION AND
DRAFTING OF THIS AGREEMENT AND, IN THE EVENT AN AMBIGUITY OR QUESTION OF INTENT
OR INTERPRETATION ARISES, THIS AGREEMENT SHALL
10
BE CONSTRUED AS JOINTLY DRAFTED BY THE PARTIES HERETO AND NO PRESUMPTION OR
BURDEN OF PROOF SHALL ARISE FAVORING OR DISFAVORING ANY PARTY BY VIRTUE OF THE
AUTHORSHIP OF ANY PROVISION OF THIS AGREEMENT.
PURCHASE AND SALE OF ASSETS; ASSUMPTION OF LIABILITIES
Purchase and Sale of Assets. On the terms and subject to the conditions set
forth in this Agreement, at the Closing, Purchaser shall purchase, acquire and
accept from Sellers and the Selling Affiliates, and Sellers shall (and shall
cause the Selling Affiliates to) sell, transfer, assign, convey and deliver to
Purchaser all of Sellers' right, title and interest in, to and under the
Purchased Assets free and clear of all Liens other than Permitted Exceptions.
"Purchased Assets" shall mean all assets, properties, interests and rights of
Sellers and the Selling Affiliates, other than the Excluded Assets, as of the
Closing, primarily used in or related to the Business, including, without
limitation:
THE BUSINESS AS A GOING CONCERN;
ALL REAL PROPERTY DESCRIBED ON SCHEDULE 2.1(B)(I) (THE "OWNED REAL
PROPERTY") AND, SUBJECT TO SECTION 7.7, ALL LEASED REAL PROPERTY DESCRIBED ON
SCHEDULE 2.1(B)(II) (THE "LEASED REAL PROPERTY");
(I) SUBJECT TO SECTION 7.7, ALL CONTRACTS AND PURCHASE ORDERS LISTED
ON SCHEDULE 2.1(C), (II) ALL OTHER CONTRACTS OF THE BUSINESS AND ALL PURCHASE
ORDERS FOR THE SALE OF PRODUCTS WHICH WERE ENTERED INTO THE ORDINARY COURSE OF
BUSINESS, AND (III) ALL CONTRACTS AND PURCHASE ORDERS OF THE BUSINESS WHICH ARE
MADE BETWEEN THE DATE HEREOF AND CLOSING EITHER (X) IN THE ORDINARY COURSE OF
BUSINESS AND (Y) IF NOT IN THE ORDINARY COURSE OF BUSINESS, AS LISTED ON
SCHEDULE 2.1(C) PURSUANT TO SECTION 8.13 (THE "ASSUMED CONTRACTS");
THE PURCHASED INTELLECTUAL PROPERTY, TOGETHER WITH THE RIGHT TO SUE
AND RECOVER FOR PAST, PRESENT OR FUTURE INFRINGEMENTS OR MISAPPROPRIATIONS
THEREOF, AND ALL SOFTWARE LICENSES NECESSARY TO CONTINUE RUNNING BUSINESS
OPERATIONS ON THE HARDWARE INCLUDED IN THE EQUIPMENT;
SUBJECT TO SECTION 7.7, ALL ASSUMED LEASES AS LISTED ON SCHEDULE
1.1(A);
ALL EQUIPMENT;
ALL INVENTORY;
ALL BOOKS, RECORDS, PAPERS AND INSTRUMENTS OF WHATEVER NATURE AND
WHEREVER LOCATED THAT ARE IN THE POSSESSION OR CONTROL OF THE SELLERS THAT
RELATE TO THE BUSINESS OR THE PURCHASED ASSETS;
ALL RIGHTS, PRIVILEGES, CLAIMS, CAUSES OF ACTION, AND OPTIONS TO THE
EXTENT RELATING OR PERTAINING TO THE PURCHASED ASSETS, ASSUMED LIABILITIES OR
THE BUSINESS;
ALL RECEIVABLES, OTHER THAN RECEIVABLES FROM AFFILIATES OF SELLER;
ALL OF SELLERS' SECURITY, VENDOR, UTILITY AND OTHER SIMILAR DEPOSITS
RELATED TO THE PURCHASED ASSETS (COLLECTIVELY, "SELLERS' DEPOSITS");
ALL PERMITS USED IN THE OPERATION OF THE BUSINESS, TO THE EXTENT
TRANSFERABLE;
ALL AVOIDANCE CLAIMS OF EACH SELLER ARISING UNDER CHAPTER 5 OF THE
BANKRUPTCY CODE (INCLUDING FRAUDULENT CONVEYANCE ACTIONS UNDER APPLICABLE STATE
LAW PURSUANT TO SECTION 544 OF THE
11
BANKRUPTCY CODE) RELATING TO OR ARISING FROM ANY ASSUMED CONTRACT OR ASSUMED
LEASE OR RELATING TO ANY ASSUMED LIABILITY; AND
SUBJECT TO THE EXCLUSIONS SET FORTH IN THIS AGREEMENT, ALL OTHER OR
ADDITIONAL PRIVILEGES, RIGHTS, INTERESTS, PROPERTIES AND ASSETS OF EVERY KIND
AND DESCRIPTION AND WHEREVER LOCATED TO THE EXTENT SUCH ITEMS ARE PRIMARILY USED
IN CONNECTION WITH THE BUSINESS AS PRESENTLY CONDUCTED.
Excluded Assets. Nothing contained herein shall be deemed to sell,
transfer, assign or convey the Excluded Assets to Purchaser, and Sellers shall
retain all right, title and interest to, in and under the Excluded Assets.
"Excluded Assets" shall mean the following assets of Sellers:
SELLERS' RIGHTS UNDER THIS AGREEMENT;
ALL REAL PROPERTY LEASES OTHER THAN THE ASSUMED LEASES AND ALL
CONTRACTS OTHER THAN THE ASSUMED CONTRACTS, INCLUDING ANY RECEIVABLES ARISING
OUT OF OR IN CONNECTION WITH ANY CONTRACTS OTHER THAN THE ASSUMED CONTRACTS;
ANY AND ALL INSTRUMENTS, PREPAID ASSETS AND DEPOSITS, LETTERS OF
CREDIT PROCEEDS, UNBILLED COSTS AND FEES, TAX REFUNDS AND ACCOUNTS, IN EACH CASE
TO THE EXTENT RELATING TO ANY EXCLUDED ASSETS;
ANY AND ALL CASH AND CASH EQUIVALENTS, INCLUDING THE PURCHASE PRICE;
ALL RIGHTS (I) UNDER SELLERS' INSURANCE POLICIES RELATING TO THE
BUSINESS (INCLUDING, WITHOUT LIMITATION, HEALTH INSURANCE, WORKER'S COMPENSATION
INSURANCE AND LIFE INSURANCE), AND ANY RIGHT TO REFUNDS DUE WITH RESPECT TO SUCH
INSURANCE POLICIES AND (II) UNDER OR PURSUANT TO ALL WARRANTIES (EXPRESS OR
IMPLIED), REPRESENTATIONS AND GUARANTEES MADE BY THIRD PARTIES TO THE EXTENT
RELATING TO (A) ANY EXCLUDED ASSETS OR (B) ANY EXCLUDED LIABILITIES;
OTHER THAN THE PURCHASED INTELLECTUAL PROPERTY, ANY AND ALL
INTELLECTUAL PROPERTY OWNED BY, OR LICENSED TO, SELLERS OR ANY AFFILIATE OF
SELLERS, INCLUDING ALL DURA MARKS AND THE SOFTWARE LICENSES WITH HYPERION
SOLUTIONS CORPORATION AND CYBORG SYSTEMS, INC.;
ANY: (I) CONFIDENTIAL PERSONNEL AND MEDICAL RECORDS PERTAINING TO ANY
EMPLOYEE; (II) OTHER BOOKS AND RECORDS THAT SELLERS ARE REQUIRED BY LAW TO
RETAIN INCLUDING, WITHOUT LIMITATION, TAX RETURNS, TAXPAYER AND OTHER
IDENTIFICATION NUMBERS, FINANCIAL STATEMENTS AND CORPORATE OR OTHER ENTITY
FILINGS; PROVIDED, THAT PURCHASER SHALL HAVE THE RIGHT TO MAKE COPIES OF ANY
PORTIONS OF SUCH RETAINED BOOKS AND RECORDS TO THE EXTENT THAT SUCH PORTIONS
RELATE TO THE BUSINESS OR ANY OF THE PURCHASED ASSETS AND SELLER SHALL HAVE THE
RIGHT TO MAKE COPIES PRIOR TO CLOSING (AND RETAIN SUCH COPIES AFTER CLOSING) OF
ANY PORTIONS OF TRANSFERRED BOOKS AND RECORDS TO THE EXTENT THAT SELLERS
DETERMINE RETENTION IS NECESSARY FOR AN IMPORTANT BUSINESS PURPOSE; (III) ANY
INFORMATION MANAGEMENT SYSTEMS OF SELLERS, OTHER THAN THOSE USED OR HELD FOR USE
EXCLUSIVELY IN THE CONDUCT OF THE BUSINESS; AND (IV) MINUTE BOOKS, STOCK LEDGERS
AND STOCK CERTIFICATES OF SELLER OR ANY OF ITS SUBSIDIARIES;
ANY CLAIM, RIGHT OR INTEREST OF SELLERS IN OR TO ANY REFUND, REBATE,
ABATEMENT OR OTHER RECOVERY FOR TAXES, TOGETHER WITH ANY INTEREST DUE THEREON OR
PENALTY REBATE ARISING THEREFROM, FOR ANY TAX PERIOD (OR PORTION THEREOF) ENDING
ON OR BEFORE THE CLOSING DATE;
ASSETS OF ANY EMPLOYEE PLAN;
ASSETS PRIMARILY RELATED TO THE MASS TRANSIT BUSINESS;
ANY INTERCOMPANY ACCOUNTS RECEIVABLES OWED TO ANY SELLER BY ANY OTHER
SELLER OR ANY AFFILIATE OF ANY SELLER;
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ALL EQUITY INTERESTS OF THE SELLER'S SUBSIDIARIES (INCLUDING, WITHOUT
LIMITATION, SELLER'S NINETY PERCENT (90%) JOINT VENTURE INTEREST IN SHANGHAI
DURA VEHICLE COMPONENTS CO., LTD. (THE "CHINA JOINT VENTURE"); AND
OTHER ASSETS LISTED ON SCHEDULE 2.2(M).
Assumption of Liabilities. On the terms and subject to the conditions set
forth in this Agreement, at the Closing, Purchaser shall assume, effective as of
the Closing, and shall timely perform and discharge in accordance with their
respective terms, whenever arising, only those Liabilities set forth below
(collectively, the "Assumed Liabilities"):
ALL LIABILITIES OF SELLERS UNDER THE ASSUMED CONTRACTS, THE ASSUMED
LEASES AND THE PERMITS (TO THE EXTENT TRANSFERABLE) ARISING AFTER THE EFFECTIVE
TIME;
ALL LIABILITIES APPLICABLE TO CURRENT AND FORMER EMPLOYEES
SPECIFICALLY ASSUMED BY PURCHASER UNDER ARTICLE IX;
LIABILITIES ARISING FROM THE SALE OF PRODUCTS OR INVENTORY IN THE
ORDINARY COURSE OF BUSINESS (PAST OR PRESENT) PURSUANT TO PRODUCT WARRANTIES,
PRODUCT RETURNS AND REBATES (EXCLUDING LIABILITIES FOR PERSONAL INJURY OR
PROPERTY DAMAGE AND EXCLUDING COMPROMISED LIABILITIES);
ACCOUNTS PAYABLE INCURRED IN THE ORDINARY COURSE OF BUSINESS BY ANY
SELLER OR ANY AFFILIATE OF ANY SELLER EXISTING ON THE CLOSING DATE (INCLUDING,
FOR THE AVOIDANCE OF DOUBT, (I) INVOICED ACCOUNTS PAYABLE AND (II) ACCRUED BUT
UNINVOICED ACCOUNTS PAYABLE) OTHER THAN THE COMPROMISED LIABILITIES, IN EACH
CASE TO THE EXTENT REFLECTED AS CURRENT LIABILITIES ON THE CLOSING STATEMENT;
AND
ALL TRANSFER TAXES, IF ANY, APPLICABLE TO THE TRANSFER OF THE
PURCHASED ASSETS PURSUANT TO THIS AGREEMENT.
Excluded Liabilities. Notwithstanding anything in this Agreement to the
contrary, Purchaser shall not assume, and shall be deemed not to have assumed,
any Liabilities of Sellers or the Selling Affiliates other than the Assumed
Liabilities, including, but not limited to, the following (collectively, the
"Excluded Liabilities"):
ALL LIABILITIES ARISING OUT OF EXCLUDED ASSETS, INCLUDING LEASES OF
REAL PROPERTY THAT ARE NOT ASSUMED LEASES AND CONTRACTS, INCLUDING LEASES OF
PERSONAL PROPERTY, THAT ARE NOT ASSUMED CONTRACTS;
EXCEPT AS OTHERWISE PROVIDED IN ARTICLE IX, ALL LIABILITIES WITH
RESPECT TO EMPLOYEE PLANS;
EXCEPT AS OTHERWISE PROVIDED IN SECTION 2.3 AND ARTICLE XI, ALL
LIABILITIES FOR TAXES OF SELLERS RELATING TO THE PURCHASED ASSETS FOR ANY TAX
PERIODS (OR PORTIONS THEREOF) ENDING ON OR BEFORE THE EFFECTIVE TIME AND ALL
OTHER LIABILITIES FOR TAXES OF SELLERS AND SELLERS' AFFILIATES THAT ARE NOT
ACCRUED AS CURRENT LIABILITIES ON THE CLOSING STATEMENT;
LIABILITIES INCURRED AND EXISTING PRIOR TO THE FILING OF THE CHAPTER
11 CASES (THE "COMPROMISED LIABILITIES"), OTHER THAN PURCHASER'S OBLIGATION TO
PAY ANY CURE AMOUNTS PURSUANT TO SECTION 7.7;
LIABILITIES OF SELLERS UNDER THE PERMITS ARISING FROM THE OPERATION OF
THE BUSINESS OR THE PURCHASED ASSETS PRIOR TO THE EFFECTIVE TIME;
LIABILITIES OF SELLERS ARISING FROM THE DISPOSAL OR ARRANGEMENT FOR
DISPOSAL, PRIOR TO THE EFFECTIVE TIME, OF ANY HAZARDOUS SUBSTANCES AT ANY
OFFSITE WASTE DISPOSAL FACILITY;
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ALL LIABILITIES AND OBLIGATIONS OF SELLERS OR THEIR AFFILIATES
RELATING TO THE MAIN STREET WELL FIELD NATIONAL PRIORITY LIST SITE IN ELKHART,
INDIANA;
ALL LIABILITIES AND OBLIGATIONS OF SELLERS OR THEIR AFFILIATES
RELATING TO THE HIMCO DUMP NATIONAL PRIORITY LIST SITE IN ELKHART, INDIANA;
LIABILITIES OF SELLERS RELATING TO ANY ENVIRONMENTAL, HEALTH OR SAFETY
MATTER, INCLUDING WITHOUT LIMITATION, ANY MATTER ARISING UNDER ENVIRONMENTAL
LAWS OR RELATING TO HAZARDOUS SUBSTANCES WITH RESPECT TO THE BUSINESS, THE
FACILITIES, THE OWNED REAL PROPERTY, THE LEASED REAL PROPERTY OR THE PURCHASED
ASSETS;
ALL LIABILITIES APPLICABLE TO CURRENT AND FORMER EMPLOYEES OTHER THAN
SUCH LIABILITIES THAT ARE ASSUMED BY THE PURCHASER IN ARTICLE IX;
ALL LIABILITIES ARISING OUT OF ANY LEGAL PROCEEDINGS PENDING AGAINST
ANY SELLER OR ANY SELLING AFFILIATE;
ALL LIABILITIES RELATING TO THE ATWOOD SALE INCENTIVE PROGRAM; AND
ANY AND ALL LIABILITIES RELATING TO THE CLOSED FACILITIES.
Further Conveyances and Assumptions.
FROM TIME TO TIME FOLLOWING THE CLOSING, SELLERS SHALL, OR SHALL CAUSE
THEIR AFFILIATES TO, MAKE AVAILABLE TO PURCHASER SUCH NON-CONFIDENTIAL DATA IN
PERSONNEL RECORDS OF TRANSFERRED EMPLOYEES AS IS REASONABLY NECESSARY FOR
PURCHASER TO TRANSITION SUCH EMPLOYEES INTO PURCHASER'S RECORDS.
FROM TIME TO TIME FOLLOWING THE CLOSING, SELLERS AND PURCHASER SHALL,
AND SHALL CAUSE THEIR RESPECTIVE AFFILIATES TO, EXECUTE, ACKNOWLEDGE AND DELIVER
ALL SUCH FURTHER CONVEYANCES, NOTICES, ASSUMPTIONS, RELEASES AND SUCH OTHER
INSTRUMENTS, AND SHALL TAKE SUCH FURTHER ACTIONS, AS MAY BE REASONABLY NECESSARY
OR APPROPRIATE TO ASSURE FULLY TO PURCHASER AND ITS RESPECTIVE SUCCESSORS OR
ASSIGNS, ALL OF THE PROPERTIES, RIGHTS, TITLES, INTERESTS, ESTATES, REMEDIES,
POWERS AND PRIVILEGES INTENDED TO BE CONVEYED TO PURCHASER UNDER THIS AGREEMENT
AND THE SELLER DOCUMENTS AND TO ASSURE FULLY TO SELLERS AND THEIR AFFILIATES AND
THEIR SUCCESSORS AND ASSIGNS, THE ASSUMPTION OF THE LIABILITIES AND OBLIGATIONS
INTENDED TO BE ASSUMED BY PURCHASER UNDER THIS AGREEMENT AND SUCH OTHER
AGREEMENTS CONTEMPLATED HEREBY, AND TO OTHERWISE MAKE EFFECTIVE THE TRANSACTIONS
CONTEMPLATED HEREBY AND THEREBY.
Bulk Sales Laws. Purchaser hereby waives compliance by Sellers with the
requirements and provisions of any "bulk-transfer" Laws of any jurisdiction that
may otherwise be applicable with respect to the sale and transfer of any or all
of the Purchased Assets to Purchaser.
Non-Assignment of Assumed Contracts. Anything contained herein to the
contrary notwithstanding, (i) this Agreement shall not constitute an agreement
to assign any Permit or Assumed Contract or Assumed Lease if, after giving
effect to the provisions of sections 363 and 365 of the Bankruptcy Code, an
attempted assignment thereof, without obtaining a consent or approval, would
constitute a breach thereof or in any way negatively affect the rights of
Sellers or Purchaser, as the assignee of such Permit or Assumed Contract or
Assumed Lease and (ii) no breach of this Agreement shall have occurred by virtue
of such non-assignment. If, after giving effect to the provisions of sections
363 and 365 of the Bankruptcy Code, such consent or approval is required but not
obtained, Sellers shall, at Purchaser's sole cost and expense, cooperate with
Purchaser in any reasonable arrangement, including Purchaser's provision of
credit support, designed to provide for Purchaser the benefits and obligations
of or under any
14
such Permit or Assumed Contract or Assumed Lease, including enforcement for the
benefit of Purchaser of any and all rights of Sellers against a third party
thereto arising out of the breach or cancellation thereof by such third party;
provided, that nothing in this Section 2.7 shall (x) require Sellers to make any
material expenditure or incur any material obligation on its own or on
Purchaser's behalf or (y) prohibit Sellers from ceasing operations or winding up
its affairs following the Closing. Any assignment to Purchaser of any Permit or
Assumed Contract or Assumed Lease that shall, after giving effect to the
provisions of sections 363 and 365 of the Bankruptcy Code, require the consent
or approval of any third party (including any Governmental Body) for such
assignment as aforesaid shall be made subject to such consent or approval being
obtained.
CONSIDERATION
Consideration. The aggregate consideration for the Purchased Assets shall
be (a) an amount in cash equal to $160,200,000 (the "Purchase Price"), as
adjusted in accordance with Sections 3.3, 3.4 and 3.5 herein, and (b) the
assumption of the Assumed Liabilities.
Purchase Price Deposit. Pursuant to the terms of an escrow agreement (the
"Escrow Agreement"), Purchaser shall no later than 1:00 p.m. New York City time
on July 5, 2007 deposit into an interest bearing account with J.P. Morgan Trust
Company, National Association, in its capacity as escrow agent (the "Escrow
Agent"), $16,020,000 (10% of the Purchase Price) by wire transfer of immediately
available funds upon execution of this Agreement (the "Deposit"), to be released
by the Escrow Agent and delivered to either Purchaser or Seller, in accordance
with the provisions of the Escrow Agreement. Pursuant to the Escrow Agreement,
the Deposit, together with all accrued investment income or interest thereon
(collectively the "Escrowed Funds") shall be distributed as follows:
IF THE CLOSING SHALL OCCUR, THE DEPOSIT SHALL BE APPLIED TOWARDS THE
PURCHASE PRICE PAYABLE BY PURCHASER TO SELLER UNDER SECTION 3.3 HEREOF, AND ALL
ACCRUED INVESTMENT INCOME OR INTEREST THEREON SHALL BE DELIVERED TO PURCHASER AT
THE CLOSING;
IF THIS AGREEMENT IS TERMINATED BY SELLER PURSUANT TO SECTION 4.4(F),
THE ESCROWED FUNDS SHALL BE DELIVERED TO SELLER; OR
IF THIS AGREEMENT IS TERMINATED FOR ANY REASON OTHER THAN BY SELLER
PURSUANT TO SECTION 4.4(F), THE ESCROWED FUNDS SHALL BE RETURNED TO PURCHASER.
Payment of Purchase Price. On the Closing Date, Purchaser shall pay to
Seller, by wire transfer of immediately available funds into an account
designated by Seller, the Purchase Price (less the Deposit) (i) plus the amount
by which the Preliminary Closing Working Capital exceeds the Estimated Working
Capital or (ii) minus the amount by which the Preliminary Closing Working
Capital is less than the Estimated Working Capital. For purposes of this
Agreement, the "Preliminary Closing Working Capital" shall be a good faith
reasonable estimate by Seller of the Working Capital as of the Closing Date, to
be delivered to Purchaser at least three days prior to the Closing Date, which
estimate shall be subject to Purchaser's reasonable review and approval;
provided, however, that if Purchaser and Seller are unable to agree upon such
15
estimate, then the Preliminary Closing Working Capital shall be the Working
Capital as of the closing of business on the date of the most recent month-end.
Calculation of Final Purchase Price.
PROMPTLY, BUT IN ANY EVENT WITHIN 60 DAYS AFTER THE CLOSING DATE,
PURCHASER SHALL CAUSE TO BE PREPARED IN GOOD FAITH AND DELIVERED TO SELLER A
WRITTEN STATEMENT SETTING FORTH THE CLOSING WORKING CAPITAL AS OF THE CLOSE OF
BUSINESS ON THE DAY BEFORE THE CLOSING DATE AND THE RESULTING FINAL PURCHASE
PRICE (IN ITS FINAL AND BINDING FORM AS DETERMINED BELOW, THE "CLOSING
STATEMENT"); PROVIDED, HOWEVER, THAT AT ANY TIME PRIOR TO THE EARLIER OF (X) THE
FINAL RESOLUTION OF THE CLOSING STATEMENT AS DETERMINED BELOW AND (Y) 120 DAYS
AFTER THE CLOSING, PURCHASER SHALL BE PERMITTED TO PROPOSE AN ADJUSTMENT TO THE
AMOUNT OF THE WARRANTY ACCRUAL INCLUDED IN THE CLOSING WORKING CAPITAL
CALCULATION FOR ASSUMED LIABILITIES DESCRIBED IN SECTION 2.3(C) BASED ON ALL
INFORMATION AVAILABLE AT SUCH TIME (AND THE SELLER MAY OBJECT TO SUCH ADJUSTMENT
ON THE SAME BASIS AS IF IT HAD BEEN INCLUDED IN THE FORM OF CLOSING STATEMENT
INITIALLY DELIVERED BY PURCHASER ASSUMING THAT THE INFORMATION ON WHICH SUCH
ADJUSTMENT WAS BASED WAS AVAILABLE ON THE CLOSING DATE). THE CLOSING STATEMENT
SHALL INCLUDE ALL KNOWN ADJUSTMENTS REQUIRED IN A YEAR-END CLOSING OF THE BOOKS
AND SHALL BE PREPARED IN ACCORDANCE WITH GAAP AND, TO THE EXTENT IN ACCORDANCE
WITH GAAP, THE ACCOUNTING PRINCIPLES (EXCEPT AS OTHERWISE PROVIDED IN THE
DEFINITION OF WORKING CAPITAL AND WITHOUT REGARD TO ANY PURCHASE ACCOUNTING
ADJUSTMENTS ARISING OUT OF THE TRANSACTIONS CONTEMPLATED HEREBY). SELLER SHALL
COOPERATE AS REASONABLY REQUESTED IN CONNECTION WITH THE PREPARATION OF THE
CLOSING STATEMENT. DURING THE 30-DAY PERIOD IMMEDIATELY FOLLOWING SELLER'S
RECEIPT OF THE CLOSING STATEMENT, SELLER SHALL BE PERMITTED TO REVIEW
PURCHASER'S WORKING PAPERS RELATED TO THE PREPARATION OF THE CLOSING STATEMENT
AND DETERMINATION OF THE CLOSING WORKING CAPITAL. THE CLOSING STATEMENT SHALL
BECOME FINAL AND BINDING UPON THE PARTIES 30 DAYS FOLLOWING SELLER'S RECEIPT
THEREOF, UNLESS SELLER SHALL GIVE WRITTEN NOTICE OF ITS DISAGREEMENT (A "NOTICE
OF DISAGREEMENT") TO PURCHASER PRIOR TO SUCH DATE. ANY NOTICE OF DISAGREEMENT
SHALL SPECIFY IN REASONABLE DETAIL THE NATURE AND DOLLAR AMOUNT OF ANY
DISAGREEMENT SO ASSERTED. IF A TIMELY NOTICE OF DISAGREEMENT IS RECEIVED BY
PURCHASER, THEN THE CLOSING STATEMENT (AS REVISED IN ACCORDANCE WITH CLAUSE (X)
OR (Y) BELOW) SHALL BECOME FINAL AND BINDING UPON THE PARTIES ON THE EARLIEST OF
(X) THE DATE THE PARTIES RESOLVE IN WRITING ANY DIFFERENCES THEY HAVE WITH
RESPECT TO THE MATTERS SPECIFIED IN THE NOTICE OF DISAGREEMENT OR (Y) THE DATE
ALL MATTERS IN DISPUTE ARE FINALLY RESOLVED IN WRITING BY THE ACCOUNTING FIRM.
DURING THE 20 DAYS FOLLOWING DELIVERY OF A NOTICE OF DISAGREEMENT, SELLER AND
PURCHASER SHALL SEEK IN GOOD FAITH TO RESOLVE IN WRITING ANY DIFFERENCES WHICH
THEY MAY HAVE WITH RESPECT TO THE MATTERS SPECIFIED IN THE NOTICE OF
DISAGREEMENT. FOLLOWING DELIVERY OF A NOTICE OF DISAGREEMENT, PURCHASER AND ITS
AGENTS AND REPRESENTATIVES SHALL BE PERMITTED TO REVIEW SELLER'S AND ITS
REPRESENTATIVES' WORKING PAPERS RELATING TO THE NOTICE OF DISAGREEMENT. IF, AT
THE END OF THE 20-DAY PERIOD REFERRED TO ABOVE, THE MATTERS IN DISPUTE HAVE NOT
BEEN FULLY RESOLVED, THEN, WITHIN 10 DAYS FOLLOWING THE EXPIRATION OF SUCH
20-DAY PERIOD, THE PARTIES SHALL SUBMIT TO A MUTUALLY SATISFACTORY INDEPENDENT
"BIG-FOUR" ACCOUNTING FIRM (THE "ACCOUNTING FIRM") FOR REVIEW AND RESOLUTION OF
ALL MATTERS (BUT ONLY SUCH MATTERS) WHICH REMAIN IN DISPUTE, AND THE ACCOUNTING
FIRM SHALL MAKE A FINAL DETERMINATION OF THE CLOSING WORKING CAPITAL TO THE
EXTENT SUCH AMOUNTS ARE IN DISPUTE, IN ACCORDANCE WITH THE GUIDELINES AND
PROCEDURES SET FORTH IN THIS AGREEMENT. IF THE PARTIES ARE UNABLE TO MUTUALLY
AGREE ON AN ACCOUNTING FIRM, PURCHASER AND SELLER SHALL EACH NOMINATE AN
ACCOUNTING FIRM OF NATIONAL PROMINENCE AND WITHOUT A MATERIAL CONFLICT OF
INTEREST WITH ANY OF THE PARTIES HERETO WITHIN FIVE DAYS OF SUCH DISPUTE.
SELECTION SHALL BE MADE PURSUANT TO A COIN FLIP AT THE RICHMOND, VIRGINIA OFFICE
OF HUNTON & WILLIAMS LLP, AND THE SELECTED FIRM SHALL BE THE ACCOUNTING FIRM. IF
SUCH NEWLY SELECTED ACCOUNTING FIRM DETERMINES ITSELF TO BE CONFLICTED FROM
SERVING IN SUCH CAPACITY OR OTHERWISE REFUSES TO SERVE, THE OTHER FIRM NOT
SELECTED BY COIN FLIP SHALL SERVE AS THE ACCOUNTING FIRM. THIS PROCESS SHALL
CONTINUE AS PROMPTLY AS PRACTICABLE MANNER UNTIL A FINAL SELECTION IS MADE. THE
PARTIES WILL COOPERATE WITH THE ACCOUNTING FIRM DURING THE TERM OF ITS
ENGAGEMENT. IN RESOLVING ANY MATTERS IN DISPUTE, THE ACCOUNTING FIRM MAY NOT
ASSIGN A VALUE TO ANY ITEM IN DISPUTE GREATER THAN THE GREATEST VALUE FOR SUCH
ITEM ASSIGNED BY PURCHASER, ON THE ONE HAND, OR SELLER, ON THE OTHER HAND, OR
LESS THAN THE SMALLEST VALUE FOR SUCH ITEM ASSIGNED BY PURCHASER, ON THE ONE
HAND, OR SELLER, ON THE OTHER HAND. THE ACCOUNTING FIRM'S DETERMINATION WILL BE
BASED SOLELY ON PRESENTATIONS BY PURCHASER AND SELLER WHICH ARE IN ACCORDANCE
WITH THE GUIDELINES AND PROCEDURES SET FORTH IN THIS AGREEMENT (I.E., NOT ON THE
BASIS OF AN INDEPENDENT REVIEW). THE CLOSING STATEMENT AND THE DETERMINATION OF
THE CLOSING WORKING CAPITAL SHALL BECOME FINAL AND BINDING ON THE PARTIES ON THE
DATE THE ACCOUNTING FIRM DELIVERS ITS
16
FINAL RESOLUTION IN WRITING TO THE PARTIES (WHICH THE ACCOUNTING FIRM SHALL BE
INSTRUCTED TO DELIVER NOT MORE THAN 45 DAYS FOLLOWING SUBMISSION OF SUCH
DISPUTED MATTERS). THE FEES AND EXPENSES OF THE ACCOUNTING FIRM SHALL BE SHARED
EQUALLY BETWEEN PURCHASER AND SELLER.
IF THE PRELIMINARY CLOSING WORKING CAPITAL IS GREATER THAN THE CLOSING
WORKING CAPITAL, SELLER SHALL, AND IF THE CLOSING WORKING CAPITAL IS GREATER
THAN THE PRELIMINARY CLOSING WORKING CAPITAL, PURCHASER SHALL, WITHIN THREE
BUSINESS DAYS AFTER THE CLOSING STATEMENT BECOMES FINAL AND BINDING ON THE
PARTIES, MAKE PAYMENT BY WIRE TRANSFER TO PURCHASER OR SELLER, AS THE CASE MAY
BE, IN IMMEDIATELY AVAILABLE FUNDS, THE AMOUNT OF SUCH DIFFERENCE, TOGETHER WITH
INTEREST THEREON AT A RATE PER ANNUM EQUAL TO THE APPLICABLE RATE, CALCULATED ON
THE BASIS OF THE ACTUAL NUMBER OF DAYS ELAPSED OVER 365, FROM THE CLOSING DATE
TO THE DATE OF PAYMENT.
Prorations; Prepaid Expenses. To the extent not reflected or planned to be
reflected in the Closing Statement, unearned insurance premiums, prepaid rent,
security deposits, prepaid utility charges, real and personal property taxes or
similar ad valorem obligations (for the tax year with respect to which payments
are currently due and any subsequent tax years up to the tax year that includes
the Closing Date), and other prepaid expenses and accruals payable in respect of
the Business or any of the Purchased Assets or Assumed Liabilities (the "Prepaid
and Accrued Expenses") shall be prorated as of the Closing Date based on the
number of days in the period to which each Prepaid and Accrued Expense relates
that fall, respectively, before and after the Closing Date. The estimated net
amounts of such prorations shall be payable to Purchaser, if Purchaser is
entitled to a credit therefor, or payable to Seller, if Seller is entitled to a
credit therefor. In the event that such proration cannot be agreed to by
Purchaser and Seller, a final determination of such proration shall be referred
to the Accounting Firm, whose determination shall be binding upon the parties.
The fees of the Accounting Firm shall be shared equally between Purchaser and
Seller.
CLOSING AND TERMINATION
Closing Date. Subject to the satisfaction of the conditions set forth in
Sections 10.1, 10.2 and 10.3 hereof (or the waiver thereof by the Party entitled
to waive that condition), the closing of the purchase and sale of the Purchased
Assets and the assumption of the Assumed Liabilities provided for in Article II
hereof (collectively, the "Closing") shall take place at the offices of Kirkland
& Ellis LLP located at 200 East Randolph Drive, Chicago, Illinois (or at such
other place as the Parties may designate in writing) at 10:00 a.m. (Chicago
time) on the date that is two (2) Business Days following the satisfaction or
waiver of the conditions set forth in Article X (other than conditions that by
their nature are to be satisfied at the Closing, but subject to the satisfaction
or waiver of such conditions), unless another time or date, or both, are agreed
to in writing by the Parties. The date on which the Closing shall be held is
referred to in this Agreement as the "Closing Date." The Closing shall be deemed
to have occurred at 12:01 a.m. on the Closing Date (the "Effective Time").
Deliveries by Seller. At the Closing, Seller shall deliver to Purchaser:
A BILL OF SALE IN THE FORM OF EXHIBIT A HERETO, DULY EXECUTED BY THE
SELLERS AND THE SELLING AFFILIATES, AS APPLICABLE;
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AN ASSIGNMENT AND ASSUMPTION AGREEMENT IN THE FORM ATTACHED HERETO AS
EXHIBIT B HERETO, DULY EXECUTED BY THE SELLERS AND THE SELLING AFFILIATES, AS
APPLICABLE;
A SPECIAL WARRANTY DEED FOR EACH OWNED REAL PROPERTY IN THE FORM
ATTACHED TO THIS AGREEMENT AS EXHIBIT C, WITH SUCH MODIFICATIONS AS ARE
NECESSARY TO PROPERLY (I) TRANSFER THE APPLICABLE SELLER'S OR SELLING
AFFILIATE'S RIGHT, TITLE AND INTEREST IN SUCH OWNED REAL PROPERTY TO PURCHASER
FREE AND CLEAR OF ALL LIENS, EXCEPT FOR PERMITTED EXCEPTIONS, (II) DESCRIBE SUCH
OWNED REAL PROPERTY AND (III) RENDER SUCH DEED RECORDABLE WITH THE LOCAL
OFFICIAL RECORDS RELATING TO REAL PROPERTY, DULY EXECUTED BY THE APPROPRIATE
SELLER OR SELLING AFFILIATE THAT OWNS SUCH OWNED REAL PROPERTY AND ACKNOWLEDGED
BY A NOTARY PUBLIC;
AN ASSIGNMENT AND ASSUMPTION OF LEASE FOR EACH LEASED REAL PROPERTY IN
THE FORM ATTACHED TO THIS AGREEMENT AS EXHIBIT D, WITH SUCH MODIFICATIONS AS ARE
NECESSARY TO PROPERLY DESCRIBE SUCH LEASED REAL PROPERTY (COLLECTIVELY, THE
"LEASE ASSIGNMENTS"), DULY EXECUTED BY THE APPLICABLE SELLER OR SELLING
AFFILIATE THAT HOLDS THE LEASEHOLD INTEREST IN SUCH LEASED REAL PROPERTY;
A LEASE AGREEMENT, BETWEEN THE SELLER OR SELLING AFFILIATE, AS
APPLICABLE, THAT HOLDS THE FEE INTEREST IN THE OWNED REAL PROPERTY IN WEST
UNION, IOWA, AS TENANT, AND PURCHASER, AS LANDLORD, IN THE FORM ATTACHED TO THIS
AGREEMENT AS EXHIBIT E, WITH SUCH MODIFICATIONS AS ARE NECESSARY TO PROPERLY
DESCRIBE THE OWNED REAL PROPERTY IN WEST UNION, IOWA (THE "WEST UNION LEASE"),
DULY EXECUTED BY THE APPLICABLE SELLER OR SELLING AFFILIATE THAT HOLDS THE FEE
INTEREST IN SUCH OWNED REAL PROPERTY;
CUSTOMARY DOCUMENTATION, AFFIDAVITS AND INDEMNITIES SUFFICIENT TO
INDUCE THE TITLE COMPANY ISSUING ANY TITLE INSURANCE FOR THE OWNED REAL PROPERTY
OR LEASED REAL PROPERTY, TO REMOVE FROM THE POLICY OF SUCH TITLE INSURANCE THE
STANDARD EXCEPTIONS FOR TENANTS AND OTHER PARTIES IN POSSESSION OF SUCH OWNED
REAL PROPERTY AND MECHANIC'S AND SIMILAR LIENS;
IF REQUESTED BY SUCH TITLE COMPANY, (I) A CERTIFICATE OF GOOD STANDING
WITH RESPECT TO THE SELLER OR SELLING AFFILIATE THAT IS THE OWNER OF ANY OWNED
REAL PROPERTY OR LESSEE OF ANY LEASED REAL PROPERTY AND (II) A CERTIFICATE OF
THE CORPORATE SECRETARY OR OTHER APPROPRIATE OFFICER OF SUCH SELLER OR SELLING
AFFILIATE EVIDENCING (A) COMPLETE AND ACCURATE COPIES OF THE ARTICLES OF
INCORPORATION AND BY-LAWS (OR EQUIVALENT ORGANIZATIONAL DOCUMENTS) OF SUCH
SELLER OR SELLING AFFILIATE AND (B) THE DUE AUTHORIZATION OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT BY SUCH SELLER OR SELLING AFFILIATE;
DULY EXECUTED ASSIGNMENTS OF (I) THE PATENTS AND TRADEMARKS OWNED BY
SELLERS OR A SELLING AFFILIATE THAT ARE INCLUDED IN THE PURCHASED INTELLECTUAL
PROPERTY, IN FORMS SUITABLE FOR RECORDING IN THE UNITED STATES PATENT AND
TRADEMARK OFFICE, AND (II) THE COPYRIGHT REGISTRATIONS AND APPLICATIONS FOR
COPYRIGHT REGISTRATION OWNED BY SELLERS OR A SELLING AFFILIATE THAT ARE INCLUDED
IN PURCHASED INTELLECTUAL PROPERTY, IN FORMS SUITABLE FOR RECORDING IN THE
UNITED STATES COPYRIGHT OFFICE (IF APPLICABLE);
A DULY EXECUTED LICENSE AGREEMENT IN THE FORM ATTACHED TO THIS
AGREEMENT AS EXHIBIT F;
THE OFFICER'S CERTIFICATE REQUIRED TO BE DELIVERED PURSUANT TO
SECTIONS 10.1(A) AND 10.1(B);
A TRANSITION SERVICES AGREEMENT IN SUBSTANTIALLY THE FORM ATTACHED TO
THIS AGREEMENT AS EXHIBIT J (THE "TRANSITION SERVICES AGREEMENT"), DULY EXECUTED
BY THE SELLERS;
A CONFIDENTIALITY, NON-SOLICITATION AND NON-COMPETE AGREEMENT
INCORPORATING THE TERMS SET FORTH IN SECTIONS 8.6, 8.7 AND 8.8, DULY EXECUTED BY
DURA; AND
ALL OTHER INSTRUMENTS OF CONVEYANCE, ASSUMPTION AND TRANSFER, IN FORM
AND SUBSTANCE REASONABLY ACCEPTABLE TO PURCHASER, AS MAY BE NECESSARY TO CONVEY
THE PURCHASED ASSETS TO PURCHASER AND SUCH OTHER DOCUMENTS, INSTRUMENTS AND
CERTIFICATES AS PURCHASER MAY REASONABLY REQUEST, PROVIDED, THAT, NOTHING IN
THIS SECTION 4.2(M) SHALL REQUIRE SELLERS (X) TO DELIVER TO PURCHASER ANY
DOCUMENT, INSTRUMENT OR CERTIFICATE THAT REQUIRES ANY ACTION BY ANY SELLER OR
ANY THIRD PARTY (INCLUDING ANY GOVERNMENTAL BODY) THAT
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IS NOT WITHIN THE REASONABLE CONTROL OF THE SELLER, (Y) TO MAKE ANY MATERIAL
EXPENDITURE OR INCUR ANY MATERIAL OBLIGATION ON ITS OWN OR ON PURCHASER'S BEHALF
OR (Z) TO DELIVER TO PURCHASER ANY DOCUMENT, INSTRUMENT OR CERTIFICATE THAT HAS
NOT BEEN SO REQUESTED BY PURCHASER AT LEAST FIVE BUSINESS DAYS PRIOR TO THE
CLOSING.
Deliveries by Purchaser. At the Closing, Purchaser shall deliver to Seller:
THE PURCHASE PRICE (LESS THE ESCROWED FUNDS) IN IMMEDIATELY AVAILABLE
FUNDS AS SET FORTH IN SECTION 3.3 HEREOF;
AN ASSIGNMENT AND ASSUMPTION AGREEMENT IN THE FORM ATTACHED HERETO AS
EXHIBIT B HERETO, DULY EXECUTED BY PURCHASER;
THE LEASE ASSIGNMENTS DULY EXECUTED BY PURCHASER (EXHIBIT D);
THE WEST UNION LEASE DULY EXECUTED BY PURCHASER (EXHIBIT E);
THE LICENSE AGREEMENT DULY EXECUTED BY PURCHASER (EXHIBIT F);
THE OFFICER'S CERTIFICATE REQUIRED TO BE DELIVERED PURSUANT TO
SECTIONS 10.2(A) AND 10.2(B);
THE TRANSITION SERVICES AGREEMENT DULY EXECUTED BY PURCHASER (EXHIBIT
J); AND
SUCH OTHER DOCUMENTS, INSTRUMENTS AND CERTIFICATES AS SELLER MAY
REASONABLY REQUEST.
Termination of Agreement. This Agreement may be terminated prior to the
Closing as follows:
BY PURCHASER OR SELLERS, IF THE CLOSING SHALL NOT HAVE OCCURRED BY THE
CLOSE OF BUSINESS ON AUGUST 29, 2007 (THE "TERMINATION DATE"); PROVIDED,
HOWEVER, THAT, IF THE CLOSING SHALL NOT HAVE OCCURRED DUE TO THE FAILURE OF THE
BANKRUPTCY COURT TO ENTER THE SALE ORDER AND IF ALL OTHER CONDITIONS TO THE
RESPECTIVE OBLIGATIONS OF THE PARTIES TO CLOSE HEREUNDER THAT ARE CAPABLE OF
BEING FULFILLED BY THE TERMINATION DATE SHALL HAVE BEEN SO FULFILLED OR WAIVED,
THEN NO PARTY MAY TERMINATE THIS AGREEMENT PRIOR TO SEPTEMBER 30, 2007;
PROVIDED, FURTHER, THAT IF THE CLOSING SHALL NOT HAVE OCCURRED ON OR BEFORE THE
TERMINATION DATE DUE TO A MATERIAL BREACH OF ANY REPRESENTATIONS, WARRANTIES,
COVENANTS OR AGREEMENTS CONTAINED IN THIS AGREEMENT BY PURCHASER OR SELLERS,
THEN THE BREACHING PARTY MAY NOT TERMINATE THIS AGREEMENT PURSUANT TO THIS
SECTION 4.4(A);
BY MUTUAL WRITTEN CONSENT OF SELLERS AND PURCHASER;
BY PURCHASER, IF ANY OF THE CONDITIONS TO THE OBLIGATIONS OF PURCHASER
SET FORTH IN SECTIONS 10.1 AND 10.3 SHALL HAVE BECOME INCAPABLE OF FULFILLMENT
OTHER THAN AS A RESULT OF A BREACH BY PURCHASER OF ANY COVENANT OR AGREEMENT
CONTAINED IN THIS AGREEMENT, AND SUCH CONDITION IS NOT WAIVED BY PURCHASER;
BY SELLERS, IF ANY CONDITION TO THE OBLIGATIONS OF SELLERS SET FORTH
IN SECTIONS 10.2 AND 10.3 SHALL HAVE BECOME INCAPABLE OF FULFILLMENT OTHER THAN
AS A RESULT OF A BREACH BY ANY SELLER OF ANY COVENANT OR AGREEMENT CONTAINED IN
THIS AGREEMENT, AND SUCH CONDITION IS NOT WAIVED BY SELLERS;
BY PURCHASER, IF THERE SHALL BE A BREACH BY ANY SELLER OF ANY
REPRESENTATION OR WARRANTY, OR ANY COVENANT OR AGREEMENT CONTAINED IN THIS
AGREEMENT, WHICH WOULD RESULT IN A FAILURE OF A CONDITION SET FORTH IN SECTION
10.1 OR 10.3 OR WHICH OTHERWISE RESULTS IN THE FAILURE OF THE CLOSING TO OCCUR,
AND WHICH BREACH CANNOT BE CURED OR HAS NOT BEEN CURED BY THE EARLIER OF (I)
SEVEN (7) BUSINESS DAYS AFTER THE GIVING OF WRITTEN NOTICE BY PURCHASER TO
SELLERS OF SUCH BREACH AND (II) THE TERMINATION DATE;
BY SELLERS, IF THERE SHALL BE A BREACH BY PURCHASER OF ANY
REPRESENTATION OR WARRANTY, OR ANY COVENANT OR AGREEMENT CONTAINED IN THIS
AGREEMENT, WHICH WOULD RESULT IN A FAILURE OF A CONDITION SET FORTH IN
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SECTION 10.2 OR 10.3 OR WHICH OTHERWISE RESULTS IN THE FAILURE OF THE CLOSING TO
OCCUR, AND WHICH BREACH CANNOT BE CURED OR HAS NOT BEEN CURED BY THE EARLIER OF
(I) SEVEN (7) BUSINESS DAYS AFTER THE GIVING OF WRITTEN NOTICE BY SELLERS TO
PURCHASER OF SUCH BREACH AND (II) THE TERMINATION DATE;
BY SELLERS OR PURCHASER IF THERE SHALL BE IN EFFECT A FINAL
NONAPPEALABLE ORDER OF A GOVERNMENTAL BODY OF COMPETENT JURISDICTION
RESTRAINING, ENJOINING OR OTHERWISE PROHIBITING THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY; IT BEING AGREED THAT THE PARTIES HERETO SHALL
PROMPTLY APPEAL ANY ADVERSE DETERMINATION THAT IS NOT NONAPPEALABLE (AND PURSUE
SUCH APPEAL WITH REASONABLE DILIGENCE); OR
BY PURCHASER OR SELLERS, IF THE BANKRUPTCY COURT SHALL ENTER AN ORDER
APPROVING A COMPETING BID, SUBJECT TO THE LIMITATIONS SET FORTH IN THE BIDDING
PROCEDURES ORDER AND SUBJECT TO PURCHASER'S RIGHT TO PAYMENT OF THE BREAK-UP FEE
AND EXPENSE REIMBURSEMENT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 4.6.
Procedure Upon Termination. In the event of termination by Purchaser or
Sellers, or both, pursuant to Section 4.4 hereof, written notice thereof shall
forthwith be given to the other Party or Parties, and this Agreement shall
terminate, and the purchase of the Purchased Assets hereunder shall be
abandoned, without further action by Purchaser or Sellers. If this Agreement is
terminated as provided herein each Party shall redeliver all documents, work
papers and other material of any other Party relating to the transactions
contemplated hereby, whether so obtained before or after the execution hereof,
to the Party furnishing the same.
Effect of Termination; Break-Up Fee.
IN THE EVENT THAT THIS AGREEMENT IS VALIDLY TERMINATED AS PROVIDED
HEREIN, THEN EACH OF THE PARTIES SHALL BE RELIEVED OF ITS DUTIES AND OBLIGATIONS
ARISING UNDER THIS AGREEMENT AFTER THE DATE OF SUCH TERMINATION AND SUCH
TERMINATION SHALL BE WITHOUT LIABILITY TO PURCHASER OR SELLERS; PROVIDED,
HOWEVER, THAT THE OBLIGATIONS OF THE PARTIES SET FORTH IN THIS SECTION 4.6 AND
IN SECTION 8.6 AND ARTICLE XII HEREOF SHALL SURVIVE ANY SUCH TERMINATION AND
SHALL BE ENFORCEABLE HEREUNDER.
NOTHING IN THIS SECTION 4.6 SHALL RELIEVE PURCHASER OR SELLERS OF ANY
LIABILITY FOR A BREACH OF THIS AGREEMENT PRIOR TO THE DATE OF TERMINATION. THE
DAMAGES RECOVERABLE BY THE NON-BREACHING PARTY SHALL INCLUDE ALL ATTORNEYS' FEES
REASONABLY INCURRED BY SUCH PARTY IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED HEREBY.
IN THE EVENT THAT THIS AGREEMENT IS TERMINATED PURSUANT TO SECTION
4.4(H), THEN SELLERS WILL PAY TO PURCHASER, ACCORDING TO THE TERMS SET FORTH IN
THE BIDDING PROCEDURES ORDER IF NO BREACH OF THIS AGREEMENT BY PURCHASER HAS
OCCURRED, (I) A FEE (THE "BREAK-UP FEE") EQUAL TO 2% OF THE CASH PORTION OF THE
PURCHASE PRICE PLUS SUCH ADDITIONAL SUM AS MAY BE APPLICABLE UNDER SECTION 13(B)
OF THE BIDDING PROCEDURES ORDER; PLUS (II) A REIMBURSEMENT OF PURCHASER'S
REASONABLE OUT-OF-POCKET EXPENSES UP TO AN AGGREGATE AMOUNT EQUAL TO 1% OF THE
CASH PORTION OF THE PURCHASE PRICE (THE "EXPENSE REIMBURSEMENT"). THE BREAK-UP
FEE SHALL BE PAID AND PAYABLE IN THE NATURE OF LIQUIDATED DAMAGES. THE EXPENSE
REIMBURSEMENT SHALL BE PAID AND PAYABLE AS AN ACTUAL DAMAGE, EARNED AT THE TIME
OF INCURRENCE. THE BREAK-UP FEE AND THE EXPENSE REIMBURSEMENT SHALL BE PAID IN
LIEU OF ANY OTHER PAYMENTS OR DAMAGES UNDER THIS AGREEMENT (EXCEPT FOR THE
RETURN OF THE ESCROWED FUNDS PURSUANT TO SECTION 3.2(C)). THE BREAK-UP FEE SHALL
BE PAYABLE BY SELLERS IN THE EVENT AND AT THE TIME A COMPETING BID IS
CONSUMMATED FROM THE PROCEEDS THEREOF. THE EXPENSE REIMBURSEMENT SHALL BE PAID
ON OR BEFORE THE EARLIER OF (X) 20 DAYS FROM THE DATE OF THE ORDER APPROVING THE
COMPETING BID OR (Y) THE CLOSING OF THE SALE PURSUANT TO THE COMPETING BID.
SELLERS HEREBY AGREE, AND THE BIDDING PROCEDURES ORDER SHALL PROVIDE, THAT EACH
OF THE BREAK-UP FEE AND THE EXPENSE REIMBURSEMENT CONSTITUTES AN ALLOWED
ADMINISTRATIVE EXPENSE OF SELLERS UNDER SECTIONS 503(B)(1) AND 507(A)(2) OF THE
BANKRUPTCY CODE, RESPECTIVELY, WITH PRIORITY OVER ANY AND ALL CLAIMS OF HOLDERS
WITH EXISTING LIENS ON THE PURCHASED ASSETS OR THE PROCEEDS OF A SALE PURSUANT
TO A COMPETING BID, AND SELLERS SHALL NOT DISPUTE ANY
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MOTION FOR ALLOWANCE AND PAYMENT OF SAME PURSUANT TO THE TERMS OF THIS
PROVISION. EACH SELLER AGREES THAT PURCHASER'S REASONABLE OUT-OF-POCKET EXPENSES
FOR THE PURPOSE OF CALCULATING THE EXPENSE REIMBURSEMENT SHALL INCLUDE, WITHOUT
LIMITATION, ALL FEES, COSTS AND EXPENSES RELATED TO FILINGS UNDER THE HSR ACT
PURSUANT TO SECTION 8.3(B), REASONABLE FEES AND EXPENSES OF ITS ATTORNEYS,
ACCOUNTANTS AND OTHER ADVISORS, TRAVEL EXPENSES, TELEPHONE CHARGES AND DELIVERY
CHARGES AND A REASONABLE ALLOCATION FOR INTERNAL STAFF AND ADMINISTRATIVE TIME.
THE CONFIDENTIALITY AGREEMENT SHALL SURVIVE ANY TERMINATION OF THIS
AGREEMENT AND NOTHING IN THIS SECTION 4.6 SHALL RELIEVE PURCHASER OR SELLERS OF
THEIR RESPECTIVE OBLIGATIONS UNDER THE CONFIDENTIALITY AGREEMENT. IF THIS
AGREEMENT IS TERMINATED IN ACCORDANCE WITH SECTION 4.6, PURCHASER AGREES THAT
THE PROHIBITION IN THE CONFIDENTIALITY AGREEMENT RESTRICTING PURCHASER'S ABILITY
TO SOLICIT ANY EMPLOYEE OF ANY SELLER TO JOIN THE EMPLOY OF PURCHASER OR ANY IF
ITS AFFILIATES SHALL BE EXTENDED TO A PERIOD OF TWO (2) YEARS FROM THE DATE OF
THIS AGREEMENT.
REPRESENTATIONS AND WARRANTIES OF SELLERS
Subject to Bankruptcy Court approval of this Agreement, Sellers hereby
represent and warrant to Purchaser that:
Organization and Good Standing. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of Illinois
and each of the other Sellers and Selling Affiliates are duly organized, validly
existing and in good standing under the laws of its respective state of
formation as identified on Schedule 5.1, and has all requisite power and
authority to own, lease and operate its properties and to carry on its business
as now conducted. Schedule 5.1 identifies the only jurisdictions in which the
ownership, use or leasing of each Sellers' assets and properties, or the conduct
or nature of its business, makes such qualification, licensing or admission
necessary, except for those jurisdictions in which the adverse effects of all
such failures by Sellers to be qualified, licensed or admitted and in good
standing could not in the aggregate have a Material Adverse Effect.
Authorization of Agreement. Each Seller has all requisite power and
authority to execute and deliver this Agreement and each Seller has all
requisite power and authority to execute and deliver each other agreement,
document, instrument or certificate contemplated by this Agreement or to be
executed by Sellers in connection with the consummation of the transactions
contemplated by this Agreement (the "Seller Documents"), to perform their
respective obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby. The execution and delivery of this
Agreement and the Seller Documents and the consummation of the transactions
contemplated hereby and thereby will be duly authorized by all requisite
corporate action on the part of each Seller prior to the Closing. This Agreement
has been, and each of the Seller Documents will be at or prior to the Closing,
duly executed and delivered by each Seller which is a party thereto and
(assuming the due authorization, execution and delivery by the other parties
hereto and thereto, the entry of the Sale Order, and, with respect to Sellers'
obligations under Section 7.1 the entry of the Bidding Procedures Order) this
Agreement constitutes, and each of the Seller Documents when so executed and
delivered will constitute, legal, valid and binding obligations of Sellers,
enforceable against Sellers in accordance with their respective terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium and similar
laws affecting creditors' rights and remedies generally,
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and subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law or in equity).
Conflicts; Consents of Third Parties.
EXCEPT AS SET FORTH ON SCHEDULE 5.3(A), NONE OF THE EXECUTION AND
DELIVERY BY SELLERS OF THIS AGREEMENT OR THE SELLER DOCUMENTS, THE CONSUMMATION
OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, OR COMPLIANCE BY SELLERS
WITH ANY OF THE PROVISIONS HEREOF OR THEREOF WILL CONFLICT WITH, OR RESULT IN
ANY MATERIAL VIOLATION OF OR MATERIAL DEFAULT (WITH OR WITHOUT NOTICE OR LAPSE
OF TIME, OR BOTH) UNDER, OR GIVE RISE TO A RIGHT OF TERMINATION, ACCELERATION OR
CANCELLATION OR RIGHT TO MATERIALLY INCREASE THE OBLIGATIONS OR OTHERWISE
MATERIALLY MODIFY THE TERMS UNDER ANY PROVISION OF (I) THE CERTIFICATE OF
INCORPORATION AND BY LAWS OR COMPARABLE ORGANIZATIONAL DOCUMENTS OF SELLERS;
(II) SUBJECT TO ENTRY OF THE SALE ORDER, ANY MATERIAL CONTRACT, MATERIAL ASSUMED
LEASE OR MATERIAL PERMIT TO WHICH ANY SELLER IS A PARTY OR BY WHICH ANY OF THE
PROPERTIES OR ASSETS OF SELLERS ARE BOUND; OR (III) SUBJECT TO ENTRY OF THE SALE
ORDER, ANY APPLICABLE LAW..
EXCEPT AS SET FORTH ON SCHEDULE 5.3(B), NO CONSENT, WAIVER, APPROVAL,
ORDER, PERMIT OR AUTHORIZATION OF, OR DECLARATION OR FILING WITH, OR
NOTIFICATION TO, ANY PERSON OR GOVERNMENTAL BODY IS REQUIRED ON THE PART OF ANY
SELLER IN CONNECTION WITH THE EXECUTION AND DELIVERY OF THIS AGREEMENT OR THE
SELLER DOCUMENTS, THE COMPLIANCE BY SELLER WITH ANY OF THE PROVISIONS HEREOF OR
THEREOF, THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THE TAKING
BY ANY SELLER OF ANY OTHER ACTION CONTEMPLATED HEREBY, EXCEPT FOR (I) COMPLIANCE
WITH THE APPLICABLE REQUIREMENTS OF THE HSR ACT, (II) THE ENTRY OF THE SALE
ORDER, AND (III) THE ENTRY OF THE BIDDING PROCEDURES ORDER WITH RESPECT TO
SELLERS' OBLIGATIONS UNDER SECTION 7.1.
Title to Purchased Assets. Sellers and Selling Affiliates own their right,
title and interest in the Purchased Assets free and clear of all Liens, other
than Permitted Exceptions, and, subject to the entry of the Sale Order, and
subject to the receipt of any required third party consent, on the Closing Date,
Purchaser will acquire all of Sellers' and Selling Affiliates' right, title and
interest in the Purchased Assets, free and clear of all Liens, other than
Permitted Exceptions and Liens created by Purchaser, to the fullest extent
permissible under section 363(f) of the Bankruptcy Code.
Real Property.
SCHEDULE 2.1(B)(I) SETS FORTH A LIST OF THE ADDRESSES OF ALL REAL
PROPERTY OWNED BY SELLERS OR SELLING AFFILIATES USED IN THE BUSINESS. EXCEPT AS
OTHERWISE DESCRIBED ON SCHEDULE 5.5(A), WITH RESPECT TO THE OWNED REAL PROPERTY:
A SELLER OR SELLING AFFILIATE HAS GOOD AND MARKETABLE FEE SIMPLE
TITLE TO EACH OWNED REAL PROPERTY FREE AND CLEAR OF ALL LIENS, EXCEPT FOR
PERMITTED EXCEPTIONS;
THERE ARE NO PENDING OR, TO THE KNOWLEDGE OF SELLER, THREATENED
LEGAL PROCEEDINGS (A) RELATING TO A CONDEMNATION OR EXPROPRIATION ACTION
AFFECTING ANY OWNED REAL PROPERTY, THE FACILITIES OR ANY PORTION THEREOF,
OR (B) ADVERSELY AFFECTING THE CURRENT USE OR OCCUPANCY OF ANY OWNED REAL
PROPERTY OR FACILITY;
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NO PERSON (OTHER THAN SELLERS OR SELLING AFFILIATES) IS IN
POSSESSION OF ANY OF THE OWNED REAL PROPERTY, FACILITIES OR PORTION THEREOF
BY LEASE, SUBLEASE, LICENSE, CONCESSION, OTHER AGREEMENT OR OTHERWISE; AND
THERE ARE NOT OUTSTANDING OPTIONS OR RIGHTS OF FIRST REFUSAL TO
PURCHASE OR LEASE THE OWNED REAL PROPERTY, THE FACILITIES OR ANY PORTION
THEREOF OR INTEREST THEREIN THAT WILL NOT BE DISCHARGED BY THE SALE ORDER.
EXCEPT AS INDICATED ON SCHEDULE 5.5(B), THE OWNED REAL PROPERTY AND
THE LEASED REAL PROPERTY COMPRISE ALL OF THE REAL PROPERTY USED OR OCCUPIED IN
THE OPERATION OF THE BUSINESS. NONE OF THE PERMITTED EXCEPTIONS MATERIALLY AND
ADVERSELY AFFECTS SELLERS' CURRENT USE OR OCCUPANCY OF, OR (OTHER THAN LIENS
RELATED TO THE DIP FINANCING THAT WILL BE RELEASED AT THE CLOSING) THE VALUE OF,
THE OWNED REAL PROPERTY, THE LEASED REAL PROPERTY OR THE FACILITIES.
SCHEDULE 2.1(B)(II) SETS FORTH A LIST OF ALL LEASES, SUBLEASES,
CONCESSIONS, LICENSES AND OTHER AGREEMENTS (WHETHER WRITTEN OR ORAL), THE NAMES
OF THE LESSOR AND THE LESSEE AND THE ADDRESS OF EACH PARCEL OF REAL PROPERTY
LEASED BY THE SELLERS OR THE SELLING AFFILIATES (COLLECTIVELY, "ASSUMED LEASES")
FOR EACH SUCH LEASED REAL PROPERTY. THE SELLER HAS MADE AVAILABLE TO PURCHASER A
TRUE AND COMPLETE COPY OF EACH SUCH ASSUMED LEASE (AND IN THE CASE OF ANY ORAL
ASSUMED LEASE, A WRITTEN SUMMARY OF THE MATERIAL TERMS OF SUCH ASSUMED LEASE)
INCLUDING ALL AMENDMENTS, EXTENSIONS, RENEWALS, GUARANTEES AND OTHER AGREEMENTS
WITH RESPECT THERETO. EXCEPT AS SET FORTH IN SCHEDULE 5.5(C), WITH RESPECT TO
EACH OF THE ASSUMED LEASES:
THE OTHER PARTY TO SUCH ASSUMED LEASE IS NOT AN AFFILIATE OF, AND
OTHERWISE DOES NOT HAVE ANY ECONOMIC INTEREST IN, THE SELLERS OR SELLING
AFFILIATES;
THE APPLICABLE SELLER OR SELLING AFFILIATE HAS NOT SUBLEASED,
LICENSED OR OTHERWISE GRANTED ANY OTHER PARTY THE RIGHT TO USE OR OCCUPY
SUCH LEASED REAL PROPERTY OR ANY PORTION THEREOF; AND
TO THE KNOWLEDGE OF SELLER, THERE ARE NO LIENS ON THE UNDERLYING
FEE INTEREST THAT MATERIALLY AND ADVERSELY AFFECT THE USE OR OCCUPANCY OF
THE LEASED REAL PROPERTY, ANY FACILITY THEREON OR THE OPERATION OF THE
BUSINESS THEREIN THAT WILL NOT BE DISCHARGED BY THE SALE ORDER.
EXCEPT AS SET FORTH IN SCHEDULE 5.5(D), WITH RESPECT TO THE
FACILITIES:
THE FACILITIES ARE NOT IN VIOLATION OF APPLICABLE SETBACK
REQUIREMENTS (SUBJECT TO ANY VIOLATIONS SET FORTH ON THE SURVEYS DELIVERED
TO PURCHASER BY SELLER PRIOR TO THE DATE HEREOF), ZONING LAWS AND
ORDINANCES IN ANY MATERIAL RESPECT;
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ALL FACILITIES HAVE RECEIVED ALL MATERIAL PERMITS REQUIRED IN
CONNECTION WITH THE OWNERSHIP, OCCUPATION AND OPERATION (CONSISTENT WITH
THE CURRENT AND REASONABLY ANTICIPATED NEEDS OF THE BUSINESS AS PRESENTLY
CONDUCTED) OF THE FACILITIES AND HAVE BEEN OPERATED AND MAINTAINED IN
MATERIAL COMPLIANCE WITH ALL APPLICABLE LAWS;
THE LEGAL DESCRIPTION FOR THE LAND UNDERLYING EACH FACILITY
CONTAINED IN THE DEED OR LEASE ASSIGNMENT, AS APPLICABLE, DELIVERED BY THE
APPLICABLE SELLER OR SELLING AFFILIATE AT THE CLOSING WILL DESCRIBE SUCH
LANDS FULLY AND ADEQUATELY, AND, SUBJECT TO ANY MATTERS SET FORTH ON THE
SURVEYS DELIVERED TO PURCHASER BY SELLER PRIOR TO THE DATE HEREOF, SUCH
FACILITIES ARE LOCATED WITHIN THE BOUNDARY LINES OF THE DESCRIBED PARCELS
AND DO NOT ENCROACH ON ANY EASEMENT WHICH MAY BURDEN SUCH LANDS;
SUBJECT TO ANY MATTERS SET FORTH ON THE SURVEYS DELIVERED TO
PURCHASER BY SELLER PRIOR TO THE DATE HEREOF, NO FACILITIES ARE LOCATED
WITHIN ANY FLOOD PLAIN OR SUBJECT TO ANY SIMILAR TYPE RESTRICTION FOR WHICH
ANY PERMITS NECESSARY TO THE USE THEREOF HAVE NOT BEEN OBTAINED;
ALL FACILITIES ARE SUPPLIED WITH, IN QUALITY AND QUANTITY,
UTILITIES AND OTHER SERVICES NECESSARY FOR THE OPERATION OF SUCH FACILITIES
IN ACCORDANCE WITH THE CURRENT NEEDS OF THE BUSINESS, INCLUDING, TO THE
EXTENT APPLICABLE TO EACH SUCH FACILITY, GAS, ELECTRICITY, WATER,
TELEPHONE, SANITARY SEWER AND STORM SEWER, AS PRESENTLY CONDUCTED, ALL OF
WHICH SERVICES ARE ADEQUATE IN ACCORDANCE WITH ALL APPLICABLE LAWS AND ARE
PROVIDED VIA PUBLIC ROADS OR VIA PERMANENT, IRREVOCABLE, APPURTENANT
EASEMENTS BENEFITING THE FACILITY; AND
ALL FACILITIES ABUT ON AND HAVE DIRECT VEHICULAR ACCESS TO A
PUBLIC ROAD OR HAVE VEHICULAR ACCESS TO A PUBLIC ROAD VIA AN APPURTENANT
EASEMENT OR RIGHT-OF-WAY BENEFITING THE APPLICABLE OWNED REAL PROPERTY OR
LEASED REAL PROPERTY.
SELLERS HAVE MADE AVAILABLE TO PURCHASER TRUE AND CORRECT COPIES OF
THE MOST RECENT SURVEY OR SURVEYS IN SELLERS' POSSESSION WITH RESPECT TO THE
OWNED REAL PROPERTY (AND SELLERS HAVE NO SURVEYS OF ANY OF THE LEASED REAL
PROPERTIES).
Intellectual Property. Except as set forth on Schedule 5.6, (a) Sellers or
a Selling Affiliate owns and possesses all right, title and interest in and to
(or has the right to use pursuant to a license or other permission) the
Purchased Intellectual Property, (b) Sellers have no obligation to compensate
any Person for the right to use any of the Purchased Intellectual Property
(except, in the case of Purchased Intellectual Property that is licensed, for
obligations pursuant to the
24
applicable license agreement), (c) Sellers have not granted to any Person any
license, option or other similar rights in or to any of the Purchased
Intellectual Property, (d) Sellers have not received any written notice from any
Person that challenges the validity or enforceability of any of the Purchased
Intellectual Property, (e) Sellers have not received any notice from any Person
challenging Sellers' or any of the Selling Affiliates' ownership of, or right to
use, any of the Purchased Intellectual Property, and (f) to the Knowledge of
Seller, no Person is infringing upon or has misappropriated any of the Purchased
Intellectual Property.
Employee Benefits. Set forth on Schedule 5.7 is a complete and correct list
of all material "employee benefit plans" as defined by Section 3(3) of ERISA,
and all other material employee benefit plans, programs or arrangements of any
kind which benefit any of the Employees (collectively the "Employee Plans").
Sellers have made available to Purchaser copies of the documents comprising each
Employee Plan. No Employee Plan provides any post-employment welfare coverage to
current Employees, other than as may otherwise be required by COBRA. No Employee
Plan is a multiemployer plan (as defined in ERISA Sections 3(37) or 4001(a)(3)
or Code Section 413) and Sellers have no liability with respect to any such
multiemployer plan that would reasonably be expected to result in liability to
the Purchaser.
Litigation. Except for the Chapter 11 Cases or as set forth on Schedule
5.8, there are no material Legal Proceedings pending or, to the Knowledge of
Seller, threatened against any of Sellers before any Governmental Body with
respect to the Business.
Compliance with Laws. Except as described in Schedule 5.9(a): (i) Sellers
and each Selling Affiliate is, with respect to the Business, in compliance in
all material respects with all Laws applicable to the Business or the Purchased
Assets and (ii) to the Knowledge of Seller, Sellers have not received any
written notice within the past twelve (12) months relating to material
violations or material alleged violations or material defaults under any Order
or any Permit, license or other authority from any Governmental Body. Schedule
5.9(b) contains a complete and accurate list of each material Permit that is
held by Sellers in connection with the operation of the Business or that
otherwise relates to the Business or the Purchased Assets. The Permits listed on
Schedule 5.9(b) constitute all material Permits necessary to conduct the
Business as currently conducted.
Financial Advisors. Except as set forth on Schedule 5.10, no Person has
acted, directly or indirectly, as a broker, finder or financial advisor for any
Seller in connection with the transactions contemplated by this Agreement and no
Person acting on behalf of any Seller is entitled to any fee or commission or
like payment from Purchaser in respect thereof.
Environmental Matters. Except as set forth on Schedule 5.11, (a) the
Facilities, the Business and the operations conducted by Sellers at the
Facilities currently comply in all material respects with Environmental Laws;
(b) the Sellers have obtained and maintain all material Permits required under
Environmental Laws to operate the Business as it is currently being operated at
the Facilities, all such Permits are in full force and effect, and the Business
and the Facilities currently comply in all material respects with all such
Permits; (c) Sellers and the Business are not subject to any pending or ongoing
Legal Proceedings or Liens under Environmental Laws relating to the Facilities,
Owned Real Property, Leased Real Property, or the operation of the Business; (d)
within the last three (3) years and, to the Knowledge of the
25
Sellers, at any other time, with respect to the Facilities; (i) no written
notice, notification, demand, request for information, citation, summons or
order has been issued to Sellers or the Business, (ii) no written complaint has
been filed against Sellers or the Business, (iii) no material penalty has been
assessed against Sellers or the Business by a Governmental Body based on
violation of Environmental Laws, and (iv) no investigation, review, Legal
Proceeding, or Lien is pending or threatened by any Governmental Body against
the Business, in each case with respect to (A) any alleged material violation of
Environmental Laws, or (B) material Liability created by or arising under
Environmental Laws; (e) no (i) Releases of Hazardous Substances or (ii) off-site
shipment of Hazardous Substances at, to or from any Facility, Owned Real
Property, Leased Real Property, previously owned, leased or operated real
property, or the operation of the Business (x) forms or (y) is reasonably
expected to form, the basis for any investigation, review, Legal Proceeding, or
Lien under Environmental Laws against the Business; and (f) Sellers have
furnished to Purchaser all material Permits, environmental audits, environmental
assessments and material environmental investigation reports, relating to the
Facilities or the Business that are in the possession of, or under the
reasonable control of Sellers. The representations and warranties set forth in
the last two sentences of Section 5.9 and in this Section 5.11 are the sole and
exclusive representations and warranties of Sellers relating to environmental,
health or safety matters, including without limitation, matters arising under
Environmental Laws.
Financial Statements. Schedule 5.12 contains (a) an internally prepared and
unaudited summary of the operating results of the Business for the fiscal years
ended December 31, 2005 and 2006 and for the three month period ending April 1,
2007 and (b) a statement of assets and liabilities of the Business as of
December 31, 2006 and April 1, 2007 (collectively, the "Financial Summary"). The
Financial Summary fairly presents in all material respects the information
presented therein, except for (i) in the case of the interim statements, normal
year end adjustments, accruals, (ii) the absence of any footnotes and other
variations that would be required to bring the Financial Summary into compliance
with GAAP and (iii) the absence of allocations for certain intercompany
services. The Financial Summary was prepared by the Seller from the internal
books and records of Sellers, which are maintained in accordance with GAAP. The
parties acknowledge that the Financial Summary has been prepared by the Seller
solely for purposes of the sale of the Business and has not been audited or
reviewed by independent auditors and that, as a "pro forma" presentation, the
parties further acknowledge that the Financial Summary is not necessarily
indicative of the operating results of the Business on a stand-alone basis or
the assets and liabilities necessary to operate the Business on a stand-alone
basis.
Taxes. Except for current Taxes incurred in the Ordinary Course of Business
that are not yet due and payable or the amount or validity of which are being
contested in good faith by appropriate proceedings as set forth on Schedule
5.13, provided an appropriate reserve for such Taxes is established in
accordance with GAAP, there are no unpaid Taxes of Sellers or the Sellers'
Affiliates the nonpayment of which would result in a Material Adverse Effect, or
otherwise could adversely affect, the Purchased Assets or cause Purchaser to
incur any material Liability.
Labor Activities. Except as set forth on Schedule 5.14, (i) within the past
three years, neither Seller nor any of its Subsidiaries has experienced any
union organization attempt, union
26
election petition, request for a union election, labor strike, work stoppage,
slowdown or other material labor dispute; (ii) no union election petition,
written request for a union election, labor strike, work stoppage, slowdown or
other material labor dispute is pending or, to the Knowledge of Seller,
threatened with respect to the Business; (iii) to the Knowledge of Seller, no
union organization attempt is underway or threatened; and (iv) neither Seller
nor any of its Subsidiaries is a party to any labor or union agreement.
Assumed Contracts and Assumed Leases. True and complete copies of each
Assumed Lease and material written Assumed Contract (or written summaries of the
terms of any Assumed Lease and material oral Assumed Contract) included in the
Purchased Assets have been previously made available to Purchaser. All such
Assumed Contracts and Assumed Leases are valid, binding and enforceable against
the applicable Seller and, to the Knowledge of Seller, the other parties related
thereto, in accordance with their terms and, to the Knowledge of Seller, are in
full force and effect in all material respects.
Sufficiency of Purchased Assets. After taking into account Purchaser's
rights in Sections 2.5, 4.3, 8.4, 8.11 and 8.15 of this Agreement and under the
Transition Services Agreement, the License Agreement and the other agreements
contemplated hereby, and disregarding the effect of the absence of any Excluded
Asset, the Purchased Assets are in all material respects sufficient for the
conduct of the Business immediately following the Closing in substantially the
same manner as currently conducted.
Customers and Suppliers. There is no current material dispute between the
Sellers and any Material Customer or Material Supplier of the Business, and no
Material Customer or Material Supplier of the Business has informed the Sellers
in writing of its plan to materially reduce its purchases from, or sales to, as
applicable, the Business. For purposes of this Section 5.17, "Material Customer"
means the 20 largest customers and "Material Suppliers" means the 20 largest
suppliers, each measured by dollar volume of sales and purchases, as the case
may be, of the Business for 2006 and as set forth on Schedule 5.17.
Certificate of Service. The parties shown on the Certificate of Service
attached hereto as Schedule 5.18 constitute all parties whom the Seller has
determined, using commercially reasonable efforts, are entitled to notice of the
Seller's intent to consummate the transactions contemplated herein (and assume
and assign the Assumed Contracts and Assumed Leases) under Federal Rule of
Bankruptcy Procedure 2002 and all other applicable rules for notice and include,
without limitation, all Persons owning, claiming or asserting any claim or
interest, vested or contingent, liquidated or unliquidated, contested or
uncontested, against each Seller in any way relating to each Seller's operation
of the Business.
No Other Representations or Warranties; Schedules. Except for the
representations and warranties contained in this Article V (as modified by the
Schedules hereto), neither Sellers nor any other Person makes (and Purchaser is
not relying upon) any other express or implied representation or warranty with
respect to Sellers, the Business, the Purchased Assets (including, without
limitation, the value, condition or use of any Purchased Asset), the Assumed
Liabilities or the transactions contemplated by this Agreement, and Sellers
disclaim any other representations or warranties, whether made by Sellers, any
Affiliate of Sellers or any of their respective officers, directors, employees,
agents or representatives. Except for the
27
representations and warranties contained in Article V hereof (as modified by the
Schedules hereto), each Seller (i) expressly disclaims and negates any
representation or warranty, express or implied, at common law, by statute or
otherwise, relating to the condition of the Purchased Assets (including, without
limitation, any implied or expressed warranty of title, merchantability or
fitness for a particular purpose, or of the probable success or profitability of
the ownership, use or operation of the Business and the Purchased Assets by
Purchaser after the Closing), and (ii) disclaims all liability and
responsibility for any representation, warranty, projection, forecast, statement
or information made, communicated or furnished (orally or in writing) to
Purchaser or its Affiliates or representatives (including, without limitation,
any opinion, information, projection or advice that may have been or may be
provided to Purchaser by any director, officer, employee, agent, consultant or
representative of any Seller or any of their Affiliates). The disclosure of any
matter or item in any Schedule hereto shall not be deemed to constitute an
acknowledgment that any such matter is required to be disclosed or is material
or that such matter would result in a Material Adverse Effect.
Survival of Representations and Warranties. None of the representations or
warranties of Sellers set forth in this Agreement shall survive the Closing.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Sellers that:
Organization and Good Standing. Purchaser is a limited liability company
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite limited liability company power and
authority to own, lease and operate its properties, to carry on its business as
now conducted and to perform its obligations under this Agreement and the
Purchaser Documents.
Authorization of Agreement. Purchaser has full limited liability company
power and authority to execute and deliver this Agreement and each other
agreement, document, instrument or certificate contemplated by this Agreement or
to be executed by Purchaser in connection with the consummation of the
transactions contemplated by this Agreement (the "Purchaser Documents"), to
perform its obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby. The execution and delivery by
Purchaser of this Agreement and the Purchaser Documents and the consummation of
the transactions contemplated hereby and thereby have been duly authorized by
all requisite limited liability company action on behalf of Purchaser. This
Agreement has been, and each Purchaser Document will be at or prior to the
Closing, duly executed and delivered by Purchaser and (assuming the due
authorization, execution and delivery by the other parties hereto and thereto)
this Agreement constitutes, and each Purchaser Document when so executed and
delivered will constitute, the legal, valid and binding obligations of
Purchaser, enforceable against Purchaser in accordance with their respective
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
and similar laws affecting creditors' rights and remedies generally, and
subject, as to enforceability, to general principles of equity, including,
without limitation,
28
principles of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law or in equity).
Conflicts; Consents of Third Parties.
EXCEPT AS SET FORTH ON SCHEDULE 6.3, NONE OF THE EXECUTION AND
DELIVERY BY PURCHASER OF THIS AGREEMENT OR THE PURCHASER DOCUMENTS, THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, OR COMPLIANCE
BY PURCHASER WITH ANY OF THE PROVISIONS HEREOF OR THEREOF WILL CONFLICT WITH, OR
RESULT IN ANY VIOLATION OF OR DEFAULT (WITH OR WITHOUT NOTICE OR LAPSE OF TIME,
OR BOTH) UNDER, OR GIVE RISE TO A RIGHT OF TERMINATION OR CANCELLATION UNDER ANY
PROVISION OF (I) THE CERTIFICATE OF INCORPORATION AND BY-LAWS OF PURCHASER, (II)
ANY CONTRACT OR PERMIT TO WHICH PURCHASER IS A PARTY OR BY WHICH PURCHASER OR
ITS PROPERTIES OR ASSETS ARE BOUND OR (III) ANY APPLICABLE LAW.
NO CONSENT, WAIVER, APPROVAL, ORDER, PERMIT OR AUTHORIZATION OF, OR
DECLARATION OR FILING WITH, OR NOTIFICATION TO, ANY PERSON OR GOVERNMENTAL BODY
IS REQUIRED ON THE PART OF PURCHASER IN CONNECTION WITH THE EXECUTION AND
DELIVERY OF THIS AGREEMENT OR THE PURCHASER DOCUMENTS, THE COMPLIANCE BY
PURCHASER WITH ANY OF THE PROVISIONS HEREOF OR THEREOF, THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY OR THE TAKING BY PURCHASER OF ANY OTHER ACTION
CONTEMPLATED HEREBY, OR FOR PURCHASER TO CONDUCT THE BUSINESS, EXCEPT FOR
COMPLIANCE WITH THE APPLICABLE REQUIREMENTS OF THE HSR ACT.
Litigation. There are no Legal Proceedings pending or, to the knowledge of
Purchaser, threatened against Purchaser, or to which Purchaser is otherwise a
party before any Governmental Body, which, if adversely determined, would
reasonably be expected to have a material adverse effect on the ability of
Purchaser to perform its obligations under this Agreement or the Purchaser
Documents or to consummate the transactions hereby or thereby. Purchaser is not
subject to any Order of any Governmental Body except to the extent the same
would not reasonably be expected to have a material adverse effect on the
ability of Purchaser to perform its obligations under this Agreement or the
Purchaser Documents or to consummate the transactions contemplated hereby or
thereby.
Financial Advisors. No Person has acted, directly or indirectly, as a
broker, finder or financial advisor for Purchaser in connection with the
transactions contemplated by this Agreement, and no Person is entitled to any
fee or commission or like payment from any Seller in respect thereof.
Financial Capability. Purchaser (i) has, and at the Closing will have,
sufficient internal funds (without giving effect to any unfunded financing
regardless of whether any such financing is committed) available to pay the
Purchase Price and any expenses incurred by Purchaser in connection with the
transactions contemplated by this Agreement, (ii) has, and at the Closing will
have, the resources and capabilities (financial or otherwise) to perform its
obligations hereunder and (iii) has not, and at the Closing will not have,
incurred any obligation, commitment, restriction or Liability of any kind, that
would impair or adversely affect such resources and capabilities.
Condition of the Business. Notwithstanding anything contained in this
Agreement to the contrary, Purchaser acknowledges and agrees that Sellers are
not making any representations or warranties whatsoever, express or implied,
beyond those expressly given by Sellers in Article V hereof (as amended,
supplemented and modified by the Schedules hereto to the extent permitted
hereunder), and Purchaser acknowledges and agrees that, except for the
29
representations and warranties contained therein, the Purchased Assets and the
Business are being transferred on a "where is" and, as to condition, "as is"
basis. Any claims Purchaser may have for breach of representation or warranty
shall be based solely on the representations and warranties of Sellers set forth
in Article V hereof (as modified by the Schedules hereto as supplemented or
amended). Purchaser further represents that neither Sellers nor any of their
Affiliates nor any other Person has made, and Purchaser is not relying upon, any
representation or warranty, express or implied, as to the accuracy or
completeness of any information regarding Sellers, the Business or the
transactions contemplated by this Agreement not expressly set forth in this
Agreement, and none of Sellers, any of their Affiliates or any other Person will
have or be subject to any Liability to Purchaser or any other Person resulting
from the distribution to Purchaser or its representatives or Purchaser's use of,
any such information, including, without limitation, any confidential memoranda
distributed on behalf of Sellers relating to the Business or other publications
or data room information provided to Purchaser or its representatives, or any
other document or information in any form provided to Purchaser or its
representatives in connection with the sale of the Business and the transactions
contemplated hereby. Purchaser represents that it is a sophisticated entity that
was advised by knowledgeable counsel and financial and other advisors and hereby
acknowledges that it has conducted to its satisfaction, its own independent
investigation and analysis of the Business (and its financial condition), the
Purchased Assets and the Assumed Liabilities and, in making the determination to
proceed with the transactions contemplated by this Agreement, Purchaser has
relied solely on the results of its own independent investigation and the
express representations set forth in this Agreement. In addition, Purchaser has
conducted its own independent review of all orders of, and all motions,
pleadings, and other submissions to, the Bankruptcy Court in connection with the
Chapter 11 Cases.
Adequate Assurances Regarding Executory Contracts. Purchaser is and will be
capable of satisfying the conditions contained in section 365(b)(1)(C) and
365(f) of the Bankruptcy Code with respect to the Assumed Contracts and the
Assumed Leases.
BANKRUPTCY COURT MATTERS
Bankruptcy Actions. On the first Business Day after the execution of this
Agreement, Seller or an Affiliate of Seller shall file with the Bankruptcy Court
a motion in substantially the form of Exhibit G hereto or otherwise reasonably
acceptable to Seller and Purchaser (the "Sale Motion") seeking, among other
things, entry of (i) an order approving (A) the bidding protections described
and/or set forth in Article IV of this Agreement or otherwise set forth in the
Sale Motion and (B) certain bidding procedures for alternative offers for the
Purchased Assets, which proposed order shall be substantially in the form of
Exhibit H hereto or otherwise reasonably acceptable to Seller and Purchaser (the
"Bidding Procedures Order"), and (ii) an order approving this Agreement and the
transactions contemplated thereby (including the sale of the Purchased Assets to
Purchaser free and clear of all Liens except the Permitted Exceptions) should
the purchase offer made by this Agreement constitute the highest or best offer
for the Purchased Assets pursuant to the Bidding Procedures Order, which order
shall be substantially in the form of Exhibit I hereto or otherwise reasonably
acceptable to Seller and Purchaser (the "Sale Order"). Sellers shall exercise
reasonable efforts to ensure that the Bidding Procedures
30
Order shall approve each of the Break-Up Fee and the Expense Reimbursement and
provide that each shall constitute an allowed administrative expense of Sellers
under Sections 503(b)(1) and 507(a)(2) of the Bankruptcy Code, respectively,
with priority over the claims of any and all existing lienholders and payable as
set forth in Section 4.6(c) above. Seller shall exercise reasonable efforts to
present record evidence to the Bankruptcy Court sufficient to support a finding
by the Bankruptcy Court that the proposed sale to Purchaser is entitled to the
protections set forth in Section 363(m) of the Bankruptcy Code.
Seller Actions. Sellers shall use their reasonable efforts to have the
Bankruptcy Court (i) schedule a hearing on the Sale Motion, (ii) enter the
Bidding Procedures Order as soon as practicable following the date hereof, but
in any case no later than 27 days after the date hereof and (iii) enter the Sale
Order as and when contemplated by the Bidding Procedures Order, but in any case
no later than 27 days after entry of the Bidding Procedures Order. Furthermore,
Sellers shall use their reasonable efforts to obtain any other approvals or
consents from the Bankruptcy Court that may be reasonably necessary to
consummate the transactions contemplated in this Agreement.
Purchaser Actions. Purchaser agrees that it will promptly take such actions
as are reasonably requested by Sellers to assist in obtaining the Sale Order and
the Bidding Procedures Order, including, without limitation, furnishing
affidavits or other documents or information for filing with the Bankruptcy
Court for the purposes, among others, of providing necessary assurances of
performance by Purchaser under this Agreement and demonstrating that Purchaser
is a "good faith" purchaser under section 363(m) of the Bankruptcy Code.
Adequate Assurances. With respect to each Assumed Contract and Assumed
Lease, Purchaser shall exercise reasonable efforts to provide adequate assurance
of the future performance of such Assumed Contract and Assumed Lease by
Purchaser.
Support of Sale Order. Purchaser shall not, without the prior written
consent of Sellers, file, join in, or otherwise support in any manner whatsoever
any motion or other pleading relating to the sale of the Purchased Assets
hereunder. In the event the entry of the Sale Order or the Bidding Procedures
Order shall be appealed, Sellers and Purchaser shall use their respective
reasonable efforts to defend such appeal.
Assignment of Contracts. Sellers and Purchaser shall use commercially
reasonable efforts to have included in the Sale Order an authorization for
Sellers to assume the Assumed Contracts and the Assumed Leases and assign to
Purchaser all Assumed Contracts and Assumed Leases, and Purchaser shall be
exclusively responsible for any Assumed Liabilities under all such Assumed
Contracts and Assumed Leases, other than any Compromised Liabilities related to
such Assumed Contracts and Assumed Leases, if any, after Purchaser's cure of all
applicable monetary defaults in accordance with Section 7.7 below.
Cure of Defaults. Purchaser shall, at or prior to the Closing, cure any and
all monetary defaults under the Assumed Contracts and Assumed Leases, which
defaults are required to be cured under the Bankruptcy Code in the amounts set
forth in Schedules 2.1(b)(ii) and 2.1(c), respectively, so that such Assumed
Contracts and Assumed Leases may be assumed by Sellers and assigned to Purchaser
in accordance with the provisions of section 365 of the Bankruptcy Code. Prior
to
31
the Closing, Purchaser, at its sole discretion, shall retain the right to refuse
assignment of or otherwise reject any of the Assumed Contracts and Assumed
Leases that may remain subject to rejection in the Chapter 11 Cases by providing
Seller written notice thereof five days prior to Closing. In the event that
Purchaser shall determine to reject or refuse assignment of any such Assumed
Contract or Assumed Lease prior to the Closing, Purchaser shall have no
obligations with respect to such Assumed Contract or Assumed Lease, including
any obligation to cure any defaults thereunder.
Competing Transaction. This Agreement is subject to approval by the
Bankruptcy Court and the consideration by Sellers of higher or better competing
bids (each a "Competing Bid"). From the date hereof (and any prior time) and
until the transaction contemplated by this Agreement is consummated, subject to
the limitations in Section 8.10, Sellers are permitted to cause their
representatives and Affiliates to initiate contact with any Person in connection
with, or solicit or encourage submission of, a Qualifying Bid to be submitted at
the Auction (as such terms are defined in the Bidding Procedures Order attached
hereto as Exhibit H) by any Person. In addition, Sellers shall, in an effort to
encourage submission of Qualifying Bids at the Auction, respond to any inquiries
or offers to purchase all or any part of the Purchased Assets and perform any
and all other acts related thereto that are required under the Bankruptcy Code
or other applicable law, including, without limitation, supplying information
relating to the Business and the assets of Sellers to prospective purchasers.
Notice to Potential Claimants. In the event that Purchaser, prior to the
date of Closing, shall discover a material, previously undisclosed or unknown
actual or contingent Liability of any Seller, that is not an Assumed Liability,
to any Person not set forth in Schedule 5.18, Purchaser shall inform Seller of
each such previously undisclosed or unknown actual or contingent Liability, and
Seller shall, at Seller's own expense: (a) provide notice to any and all such
claimants of such actual or contingent Liability; and (b) take any other such
action (if necessary) to classify each such Liability as an Excluded Liability
without recourse against Purchaser.
COVENANTS
Access to Information. Sellers agree that, prior to the Closing Date,
Purchaser shall be entitled, through its officers, employees and representatives
(including, without limitation, its legal advisors and accountants), to make
such investigation of the properties, businesses and operations of the Business
and such examination of the books and records of the Business, the Purchased
Assets and the Assumed Liabilities as it reasonably requests and to make
extracts and copies of such books and records. Any such investigation and
examination shall be conducted during regular business hours upon reasonable
advance notice and under reasonable circumstances and shall be subject to
restrictions under applicable Law. Sellers shall cause the officers, employees,
consultants, agents, accountants, attorneys and other representatives of Sellers
to cooperate with Purchaser and Purchaser's representatives in connection with
such investigation and examination, and Purchaser and its representatives shall
cooperate with Sellers and their representatives and shall use their reasonable
efforts to minimize any disruption to the Business. Notwithstanding anything
herein to the contrary, no such
32
investigation or examination shall be permitted to the extent that it would
require Sellers to disclose information subject to attorney-client privilege or
conflict with any confidentiality obligations to which any Seller is bound.
Purchaser will not contact any employee, customer or supplier of Sellers with
respect to this Agreement without the prior written consent of Sellers.
Purchaser agrees to repair at its sole cost any damage to each Facility due to
investigation and to indemnify and hold Sellers harmless of and from any claim
for physical damages or physical injuries arising from Purchaser's investigation
of each Facility, and notwithstanding anything to the contrary in this
Agreement, such obligations to repair and to indemnify shall survive the closing
or any termination of this Agreement.
Conduct of the Business Pending the Closing.
PRIOR TO THE CLOSING, SUBJECT TO ANY OBLIGATIONS AS
DEBTORS-IN-POSSESSION UNDER THE BANKRUPTCY CODE AND EXCEPT (1) AS SET FORTH ON
SCHEDULE 8.2(A), (2) AS REQUIRED BY APPLICABLE LAW, (3) AS OTHERWISE EXPRESSLY
CONTEMPLATED BY THIS AGREEMENT OR (4) WITH THE PRIOR WRITTEN CONSENT OF
PURCHASER (WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD, DELAYED OR
CONDITIONED), SELLERS SHALL:
MAINTAIN AND OPERATE THE PURCHASED ASSETS IN THE ORDINARY COURSE
OF BUSINESS AND REPAIR AND CONTINUE NORMAL MAINTENANCE, NORMAL WEAR AND
TEAR EXCEPTED; AND
CONTINUE TO OPERATE THE BUSINESS IN ALL MATERIAL RESPECTS IN
COMPLIANCE WITH ALL LAWS APPLICABLE TO SELLERS OR THE BUSINESS;
CONTINUE TO (A) CONDUCT THE BUSINESS, (B) OPERATE THE BILLING AND
COLLECTION POLICIES AND PROCEDURES WITH RESPECT TO THE BUSINESS AND (C)
MAINTAIN THE BOOKS AND RECORDS OF THE BUSINESS, CONSISTENT WITH THE PAST
PRACTICE OF THE BUSINESS AND IN THE ORDINARY COURSE OF BUSINESS;
USE THEIR COMMERCIALLY REASONABLE EFFORTS TO (A) PRESERVE THE
PRESENT BUSINESS OPERATIONS, ORGANIZATION AND GOODWILL OF THE BUSINESS AND
(B) PRESERVE THE PRESENT RELATIONSHIPS WITH CUSTOMERS, SUPPLIERS AND
EMPLOYEES OF THE BUSINESS; AND
PROMPTLY ADVISE PURCHASER IN WRITING OF THE OCCURRENCE OF ANY
EVENT THAT HAS HAD, OR IS REASONABLY EXPECTED TO HAVE, A MATERIAL ADVERSE
EFFECT.
SUBJECT TO ANY OBLIGATIONS AS DEBTORS-IN-POSSESSION UNDER THE
BANKRUPTCY CODE AND EXCEPT (1) AS SET FORTH ON SCHEDULE 8.2(B), (2) AS REQUIRED
BY APPLICABLE LAW, (3) AS OTHERWISE CONTEMPLATED BY THIS AGREEMENT OR (4) WITH
THE PRIOR WRITTEN CONSENT OF PURCHASER (WHICH CONSENT SHALL NOT BE UNREASONABLY
WITHHELD, DELAYED OR CONDITIONED), SELLERS SHALL NOT, SOLELY AS IT RELATES TO
THE BUSINESS:
INCREASE SALARIES OR WAGES, DECLARE BONUSES, INCREASE BENEFITS OR
INSTITUTE ANY NEW BENEFIT PLAN OR PROGRAM, EXCEPT AS
33
REQUIRED BY LAW, AS REQUIRED BY THE TERMS OF PREVIOUSLY EXISTING CONTRACTS,
CONTRACTS ENTERED INTO IN CONFORMANCE WITH THIS AGREEMENT, OR IN ACCORDANCE
WITH PAST PRACTICES;
SELL, LEASE, TRANSFER, MORTGAGE, ENCUMBER, ALIENATE OR DISPOSE OF
A MATERIAL AMOUNT OF PURCHASED ASSETS EXCEPT FOR (A) SALES OF INVENTORY AND
EQUIPMENT; PROVIDED, THAT, UNLESS ANY SUCH ITEM OF EQUIPMENT IS NO LONGER
NECESSARY FOR THE OPERATION OF THE BUSINESS, ANY ITEM OF EQUIPMENT SOLD
SHALL BE REPLACED WITH AN ITEM OF EQUIPMENT OF LIKE VALUE AND QUALITY; (B)
LICENSES OF PURCHASED INTELLECTUAL PROPERTY GRANTED IN THE ORDINARY COURSE
OF BUSINESS AND DISPOSITIONS OF PURCHASED INTELLECTUAL PROPERTY IN THE
REASONABLE BUSINESS OF JUDGMENT OF THE SELLERS;
INSTITUTE NEW METHODS OF ACCOUNTING THAT WILL VARY MATERIALLY
FROM THE METHODS USED BY SELLERS AS OF THE DATE OF THIS AGREEMENT EXCEPT AS
MAY BE REQUIRED BY GAAP;
ENTER INTO ANY CONTRACT OR PURCHASE ORDER NOT IN THE ORDINARY
COURSE OF BUSINESS; AND
AGREE TO DO ANYTHING PROHIBITED BY THIS SECTION 8.2.
Regulatory Approvals.
PURCHASER SHALL USE COMMERCIALLY REASONABLE EFFORTS TO (A) OBTAIN ALL
MATERIAL CONSENTS AND APPROVALS OF ALL GOVERNMENTAL BODIES AND ALL OTHER PERSONS
REQUIRED TO BE OBTAINED BY PURCHASER TO EFFECT THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT AND (B) TAKE, OR CAUSE TO BE TAKEN, ALL ACTION, AND TO DO, OR
CAUSE TO BE DONE, ALL THINGS NECESSARY OR PROPER, CONSISTENT WITH APPLICABLE
LAW, TO CONSUMMATE AND MAKE EFFECTIVE IN AN EXPEDITIOUS MANNER THE TRANSACTIONS
CONTEMPLATED HEREBY.
IF NECESSARY, PURCHASER AND SELLERS SHALL (A) MAKE OR CAUSE TO BE MADE
ALL FILINGS REQUIRED OF EACH OF THEM OR ANY OF THEIR RESPECTIVE SUBSIDIARIES OR
AFFILIATES UNDER THE HSR ACT OR OTHER ANTITRUST LAWS WITH RESPECT TO THE
TRANSACTIONS CONTEMPLATED HEREBY AS PROMPTLY AS PRACTICABLE AND, IN ANY EVENT,
WITHIN ONE BUSINESS DAY AFTER THE DATE THE BANKRUPTCY COURT ENTERS THE BIDDING
PROCEDURES ORDER APPROVING THE PURCHASER AS THE STALKING HORSE BIDDER (AS
DEFINED IN THE BIDDING PROCEDURES ORDER) IN THE CASE OF ALL FILINGS REQUIRED
UNDER THE HSR ACT AND WITHIN TWO WEEKS IN THE CASE OF ALL OTHER FILINGS REQUIRED
BY OTHER ANTITRUST LAWS, (B) COMPLY AT THE EARLIEST PRACTICABLE DATE WITH ANY
REQUEST UNDER THE HSR ACT OR OTHER ANTITRUST LAWS FOR ADDITIONAL INFORMATION,
DOCUMENTS OR OTHER MATERIALS RECEIVED BY EACH OF THEM OR ANY OF THEIR RESPECTIVE
SUBSIDIARIES FROM THE FEDERAL TRADE COMMISSION (THE "FTC"), THE ANTITRUST
DIVISION OF THE UNITED STATES DEPARTMENT OF JUSTICE (THE "ANTITRUST DIVISION")
OR ANY OTHER GOVERNMENTAL BODY IN RESPECT OF SUCH FILINGS OR SUCH TRANSACTIONS
AND (C) COOPERATE WITH EACH OTHER IN CONNECTION WITH ANY SUCH FILING (INCLUDING,
WITHOUT LIMITATION, TO THE EXTENT PERMITTED BY APPLICABLE LAW, PROVIDING COPIES
OF ALL SUCH DOCUMENTS TO THE NON-FILING PARTIES PRIOR TO FILING AND CONSIDERING
ALL REASONABLE ADDITIONS, DELETIONS OR CHANGES SUGGESTED IN CONNECTION
THEREWITH) AND IN CONNECTION WITH RESOLVING ANY INVESTIGATION OR OTHER INQUIRY
OF ANY OF THE FTC, THE ANTITRUST DIVISION OR OTHER GOVERNMENTAL BODY UNDER ANY
ANTITRUST LAWS WITH RESPECT TO ANY SUCH FILING OR ANY SUCH TRANSACTION. ANY AND
ALL FILING FEES REQUIRED TO BE PAID BY
34
PURCHASER AND SELLERS UNDER THE HSR ACT AND OTHER ANTITRUST LAWS IN CONNECTION
WITH SUCH FILINGS SHALL BE SHARED EQUALLY BY PURCHASER AND SELLER. EACH SUCH
PARTY SHALL USE COMMERCIALLY REASONABLE EFFORTS TO FURNISH TO EACH OTHER ALL
INFORMATION REQUIRED FOR ANY APPLICATION OR OTHER FILING TO BE MADE PURSUANT TO
ANY APPLICABLE LAW IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT. EACH SUCH PARTY SHALL PROMPTLY INFORM THE OTHER PARTIES OF ANY ORAL
COMMUNICATION WITH, AND PROVIDE COPIES OF WRITTEN COMMUNICATIONS WITH, ANY
GOVERNMENTAL BODY REGARDING ANY SUCH FILINGS OR ANY SUCH TRANSACTION. NO PARTY
HERETO SHALL INDEPENDENTLY PARTICIPATE IN ANY FORMAL MEETING WITH ANY
GOVERNMENTAL BODY IN RESPECT OF ANY SUCH FILINGS, INVESTIGATION OR OTHER INQUIRY
WITHOUT GIVING THE OTHER PARTIES PRIOR NOTICE OF THE MEETING AND, TO THE EXTENT
PERMITTED BY SUCH GOVERNMENTAL BODY, THE OPPORTUNITY TO ATTEND AND/OR
PARTICIPATE. SUBJECT TO APPLICABLE LAW, THE PARTIES WILL CONSULT AND COOPERATE
WITH ONE ANOTHER IN CONNECTION WITH ANY ANALYSES, APPEARANCES, PRESENTATIONS,
MEMORANDA, BRIEFS, ARGUMENTS, OPINIONS AND PROPOSALS MADE OR SUBMITTED BY OR ON
BEHALF OF ANY PARTY RELATING TO PROCEEDINGS UNDER THE HSR ACT OR OTHER ANTITRUST
LAWS. SELLERS AND PURCHASER MAY, AS EACH DEEMS ADVISABLE AND NECESSARY,
REASONABLY DESIGNATE ANY COMPETITIVELY SENSITIVE MATERIAL PROVIDED TO THE OTHER
UNDER THIS SECTION 8.3 AS "OUTSIDE COUNSEL ONLY." SUCH MATERIALS AND THE
INFORMATION CONTAINED THEREIN SHALL BE GIVEN ONLY TO THE OUTSIDE LEGAL COUNSEL
OF THE RECIPIENT AND WILL NOT BE DISCLOSED BY SUCH OUTSIDE COUNSEL TO EMPLOYEES,
OFFICERS OR DIRECTORS OF THE RECIPIENT, UNLESS EXPRESS WRITTEN PERMISSION IS
OBTAINED IN ADVANCE FROM THE SOURCE OF THE MATERIALS (SELLERS OR PURCHASER, AS
THE CASE MAY BE).
EACH OF PURCHASER AND SELLERS SHALL USE ITS COMMERCIALLY REASONABLE
EFFORTS TO RESOLVE SUCH OBJECTIONS, IF ANY, AS MAY BE ASSERTED BY ANY
GOVERNMENTAL BODY WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT UNDER THE HSR ACT, THE SHERMAN ACT, AS AMENDED, THE CLAYTON ACT, AS
AMENDED, THE FEDERAL TRADE COMMISSION ACT, AS AMENDED, AND ANY OTHER UNITED
STATES FEDERAL OR STATE OR FOREIGN STATUTES, RULES, REGULATIONS, ORDERS,
DECREES, ADMINISTRATIVE OR JUDICIAL DOCTRINES OR OTHER LAWS THAT ARE DESIGNED TO
PROHIBIT, RESTRICT OR REGULATE ACTIONS HAVING THE PURPOSE OR EFFECT OF
MONOPOLIZATION OR RESTRAINT OF TRADE (COLLECTIVELY, THE "ANTITRUST LAWS"). IN
CONNECTION THEREWITH, IF ANY LEGAL PROCEEDING IS INSTITUTED (OR THREATENED IN
WRITING TO BE INSTITUTED) CHALLENGING THAT ANY TRANSACTION CONTEMPLATED BY THIS
AGREEMENT IS IN VIOLATION OF ANY ANTITRUST LAW, EACH OF PURCHASER AND SELLERS
SHALL COOPERATE AND USE ITS COMMERCIALLY REASONABLE EFFORTS TO CONTEST AND
RESIST ANY SUCH LEGAL PROCEEDING, AND TO HAVE VACATED, LIFTED, REVERSED OR
OVERTURNED ANY DECREE, JUDGMENT, INJUNCTION OR OTHER ORDER WHETHER TEMPORARY,
PRELIMINARY OR PERMANENT, THAT IS IN EFFECT AND THAT PROHIBITS, PREVENTS OR
RESTRICTS CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT,
INCLUDING BY PURSUING ALL REASONABLY AVAILABLE AVENUES OF ADMINISTRATIVE AND
JUDICIAL APPEAL, UNLESS, BY MUTUAL AGREEMENT, PURCHASER AND SELLERS DECIDE THAT
LITIGATION IS NOT IN THEIR RESPECTIVE BEST INTERESTS. EACH OF PURCHASER AND
SELLERS SHALL USE ITS COMMERCIALLY REASONABLE EFFORTS TO TAKE SUCH ACTION AS MAY
BE REQUIRED TO CAUSE THE EXPIRATION OF THE NOTICE PERIODS UNDER THE HSR ACT OR
OTHER ANTITRUST LAWS WITH RESPECT TO SUCH TRANSACTIONS AS PROMPTLY AS POSSIBLE
AFTER THE EXECUTION OF THIS AGREEMENT. IN CONNECTION WITH AND WITHOUT LIMITING
THE FOREGOING, EACH OF PURCHASER AND SELLERS AGREES TO USE ITS COMMERCIALLY
REASONABLE EFFORTS TO TAKE PROMPTLY ANY AND ALL STEPS NECESSARY TO AVOID OR
ELIMINATE EACH AND EVERY IMPEDIMENT UNDER ANY ANTITRUST LAWS THAT MAY BE
ASSERTED BY ANY FEDERAL, STATE AND LOCAL AND NON-UNITED STATES ANTITRUST OR
COMPETITION AUTHORITY, SO AS TO ENABLE THE PARTIES TO CLOSE THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT AS EXPEDITIOUSLY AS POSSIBLE.
Further Assurances.
EACH OF SELLERS AND PURCHASER SHALL USE ITS COMMERCIALLY REASONABLE
BEST EFFORTS TO (I) TAKE ALL ACTIONS NECESSARY OR APPROPRIATE TO CONSUMMATE THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, (II) CAUSE PURCHASER TO OBTAIN (BY
TRANSFER, REISSUANCE OR OTHERWISE) EFFECTIVE AS OF THE CLOSING DATE ALL PERMITS
IDENTIFIED ON SCHEDULE 5.9(B) AND (III) CAUSE THE FULFILLMENT AT THE EARLIEST
PRACTICABLE DATE OF ALL OF THE CONDITIONS TO THEIR RESPECTIVE OBLIGATIONS TO
CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. IN ADDITION, PRIOR
TO THE CLOSING, SELLERS SHALL USE THEIR COMMERCIALLY REASONABLE BEST EFFORTS TO
TAKE SUCH ACTIONS AS ARE REASONABLY RECOMMENDED BY SELLERS' ENVIRONMENTAL
CONSULTANTS TO (X) CORRECT ALL OPERATIONAL COMPLIANCE DEFICIENCIES NOTED IN THE
2007 ENVIRON INTERNATIONAL CORPORATION REPORT TITLED "LIMITED ENVIRONMENTAL
COMPLIANCE REVIEW OF SEVEN FACILITIES OF DURA AUTOMOTIVE SYSTEMS, INC." AND
IDENTIFIED ON SCHEDULE 5.11 AND (Y) FURTHER EVALUATE THE NEED FOR ANY PERMITS
IDENTIFIED IN THE ENVIRONMENTAL SITE ASSESSMENTS LISTED ON SCHEDULE 5.11 AS
POTENTIALLY REQUIRED TO OPERATE THE BUSINESS OR FACILITIES IN COMPLIANCE WITH
35
ENVIRONMENTAL LAWS. IN THE EVENT THAT, AS OF THE CLOSING DATE, PURCHASER SHALL
NOT HAVE OBTAINED (BY TRANSFER, REISSUANCE OR OTHERWISE) ANY PERMIT IDENTIFIED
ON SCHEDULE 5.9(B) OR ANY PERMIT DETERMINED TO BE NECESSARY PURSUANT TO THE
PRECEDING SENTENCE, THEN FOLLOWING THE CLOSING, (A) SELLERS AND PURCHASER SHALL
CONTINUE TO USE THEIR COMMERCIALLY REASONABLE BEST EFFORTS TO CAUSE PURCHASER TO
OBTAIN (BY TRANSFER, REISSUANCE OR OTHERWISE) SUCH PERMIT AND (B) SELLERS SHALL
COMPENSATE PURCHASER FOR ANY FINES AND PENALTIES ASSESSED AGAINST PURCHASER
RELATING TO PURCHASER'S FAILURE TO OBTAIN SUCH PERMIT (BY TRANSFER, REISSUANCE
OR OTHERWISE) EFFECTIVE AS OF THE CLOSING DATE.
FOLLOWING THE CLOSING, PURCHASER SHALL ALLOW SELLER, THROUGH ITS
OFFICERS, EMPLOYEES AND REPRESENTATIVES (INCLUDING, WITHOUT LIMITATION, ITS
LEGAL ADVISORS AND ACCOUNTANTS), REASONABLE ACCESS TO THE FACILITIES IN ORDER TO
COMPLETE THE EXTRACTION OF ANY EXCLUDED ASSETS FROM THE FACILITIES. ANY SUCH
ACCESS FOR THE PURPOSE EXTRACTION OF EXCLUDED ASSETS SHALL BE CONDUCTED DURING
REGULAR BUSINESS HOURS UPON REASONABLE ADVANCE NOTICE AND UNDER REASONABLE
CIRCUMSTANCES AND SHALL BE SUBJECT TO RESTRICTIONS UNDER APPLICABLE LAW.
PURCHASER SHALL CAUSE THE OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS, ACCOUNTANTS,
ATTORNEYS AND OTHER REPRESENTATIVES OF PURCHASER TO COOPERATE WITH SELLER AND
SELLER'S REPRESENTATIVES IN CONNECTION WITH SUCH EXTRACTION OF EXCLUDED ASSETS,
AND SELLER AND ITS REPRESENTATIVES SHALL COOPERATE WITH PURCHASER AND ITS
REPRESENTATIVES AND SELLER SHALL USE ITS REASONABLE EFFORTS TO MINIMIZE ANY
DISRUPTION TO THE BUSINESS. SELLER AGREES TO REPAIR AT ITS SOLE COST ANY DAMAGE
TO A FACILITY DUE TO EXTRACTION OF EXCLUDED ASSETS AND TO INDEMNIFY AND HOLD
PURCHASER HARMLESS OF AND FROM ANY CLAIM FOR PHYSICAL DAMAGES OR PHYSICAL
INJURIES ARISING FROM SELLER'S EXTRACTION OF EXCLUDED ASSETS AT EACH FACILITY,
AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, SUCH OBLIGATIONS
TO REPAIR AND TO INDEMNIFY SHALL SURVIVE THE CLOSING OR ANY TERMINATION OF THIS
AGREEMENT. SELLER AGREES THAT IT SHALL, AS SOON AS PRACTICABLE AFTER THE CLOSING
DATE AND IN ANY EVENT WITHIN 90 DAYS FOLLOWING THE CLOSING DATE, COMPLETE THE
EXTRACTION OF ANY EXCLUDED ASSETS FROM THE FACILITIES. NOTWITHSTANDING THE
FOREGOING, THIS PARAGRAPH SHALL BE SUBJECT TO THE TERMS OF THE WEST UNION LEASE.
PURCHASER ACKNOWLEDGES THAT THE CONTRACTS AND ARRANGEMENTS THAT ARE
DESCRIBED ON SCHEDULE 8.4(C) ATTACHED HERETO AS "SHARED CONTRACTS" SHALL NOT BE
ASSIGNED IN WHOLE OR IN PART BY SELLER OR ANY OF ITS AFFILIATES TO THE PURCHASER
(SUCH CONTRACTS AND ARRANGEMENTS BEING REFERRED TO HEREIN AS THE "SHARED
CONTRACTS"). WITH RESPECT TO ANY SHARED CONTRACT, AT THE PURCHASER'S WRITTEN
REQUEST PRIOR TO THE CLOSING, SELLER SHALL COOPERATE WITH THE PURCHASER IN A
COMMERCIALLY REASONABLE MANNER IN CONNECTION WITH THE PURCHASER'S EFFORTS TO
OBTAIN THE AGREEMENT OF THE OTHER PARTY OR PARTIES TO ANY SUCH SHARED CONTRACT
SET FORTH ON SCHEDULE 8.4(C) TO ENTER INTO A SEPARATE AGREEMENT WITH PURCHASER
WITH RESPECT TO THE MATTERS COVERED BY SUCH SHARED CONTRACT AS THEY RELATE TO
THE BUSINESS; PROVIDED, HOWEVER, THAT SUCH COOPERATION SHALL NOT INCLUDE ANY
REQUIREMENT OF SELLER TO EXPEND MONEY, COMMENCE ANY LITIGATION OR OFFER OR GRANT
ANY ACCOMMODATION (FINANCIAL OR OTHERWISE) TO ANY THIRD PARTY. THE PURCHASER
AGREES THAT SELLER SHALL NOT HAVE ANY LIABILITY WHATSOEVER TO THE PURCHASER
ARISING OUT OF OR RELATING TO THE FAILURE TO OBTAIN ANY SUCH SEPARATE AGREEMENT.
THE PURCHASER FURTHER AGREES THAT NO REPRESENTATION, WARRANTY OR COVENANT OF
SELLER CONTAINED HEREIN SHALL BE BREACHED OR DEEMED BREACHED, AND NO CONDITION
OF THE PURCHASER SHALL BE DEEMED NOT SATISFIED, AS A RESULT OF THE FAILURE TO
OBTAIN ANY SUCH SEPARATE AGREEMENT OR AS A RESULT OF ANY FACTS RELATING TO THE
SHARED CONTRACTS. IF, DESPITE COOPERATION BY SELLER, PURCHASER IS UNABLE TO
ENTER INTO A SEPARATE AGREEMENT WITH PURCHASER WITH RESPECT TO THE MATTERS
COVERED BY SUCH SHARED CONTRACT AS THEY RELATE TO THE BUSINESS EFFECTIVE AS OF
THE CLOSING DATE, SELLERS SHALL, AT PURCHASER'S SOLE COST AND EXPENSE AND FOR A
PERIOD OF UP TO SIX MONTHS FOLLOWING THE CLOSING, COOPERATE WITH PURCHASER IN
ANY REASONABLE ARRANGEMENT, INCLUDING PURCHASER'S PROVISION OF CREDIT SUPPORT,
DESIGNED TO PROVIDE FOR PURCHASER THE BENEFITS AND OBLIGATIONS OF OR UNDER ANY
SUCH SHARED CONTRACT, INCLUDING ENFORCEMENT FOR THE BENEFIT OF PURCHASER OF ANY
AND ALL RIGHTS OF SELLERS AGAINST A THIRD PARTY THERETO ARISING OUT OF THE
BREACH OR CANCELLATION THEREOF BY SUCH THIRD PARTY; PROVIDED, THAT NOTHING IN
THIS SECTION 8.4(C) SHALL (X) REQUIRE SELLERS TO MAKE ANY MATERIAL EXPENDITURE
OR INCUR ANY MATERIAL OBLIGATION ON ITS OWN OR ON PURCHASER'S BEHALF OR (Y)
PROHIBIT SELLERS FROM CEASING OPERATIONS OR WINDING UP ITS AFFAIRS FOLLOWING THE
CLOSING.
Bonds, Letters of Credit, Etc. Purchaser shall take all necessary steps,
and execute and deliver all necessary documents, to ensure that, on the Closing
Date, Purchaser has in place the bonds, letters of credit, indemnity agreements
and similar items necessary in connection with the
36
Assumed Contracts, if any, not to exceed $500,000 in the aggregate, including,
without limitation, such bonds, letters of credit, indemnity agreements and
similar items set forth on Schedule 8.5 or necessary to cause the release of
Sellers from any and all obligations related to the foregoing.
Confidentiality.
PURCHASER ACKNOWLEDGES THAT THE CONFIDENTIAL INFORMATION PROVIDED TO
IT IN CONNECTION WITH THIS AGREEMENT, INCLUDING UNDER SECTION 8.1, AND THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY, IS SUBJECT TO THE TERMS OF
THE CONFIDENTIALITY AGREEMENT BETWEEN PURCHASER AND DURA AUTOMOTIVE SYSTEMS,
INC. (ULTIMATE PARENT OF SELLER) DATED APRIL 18, 2007 (THE "CONFIDENTIALITY
AGREEMENT"), THE TERMS OF WHICH ARE INCORPORATED HEREIN BY REFERENCE. EFFECTIVE
UPON, AND ONLY UPON, THE CLOSING DATE, THE CONFIDENTIALITY AGREEMENT SHALL
TERMINATE WITH RESPECT TO ALL INFORMATION TO THE EXTENT RELATING TO THE BUSINESS
OR OTHERWISE INCLUDED IN THE PURCHASED ASSETS; PROVIDED, HOWEVER, THAT PURCHASER
ACKNOWLEDGES THAT ANY AND ALL OTHER CONFIDENTIAL INFORMATION PROVIDED TO IT BY
ANY SELLER OR ITS REPRESENTATIVES CONCERNING ANY SELLER AND THEIR SUBSIDIARIES
SHALL REMAIN SUBJECT TO THE TERMS AND CONDITIONS OF THE CONFIDENTIALITY
AGREEMENT AFTER THE CLOSING DATE. FOR PURPOSES OF THIS SECTION 8.6,
"CONFIDENTIAL INFORMATION" SHALL MEAN ANY CONFIDENTIAL INFORMATION WITH RESPECT
TO THE BUSINESS, INCLUDING, WITHOUT LIMITATION, METHODS OF OPERATION, CUSTOMERS,
CUSTOMER LISTS, PRODUCTS, PRICES, FEES, COSTS, TECHNOLOGY, INVENTIONS, TRADE
SECRETS, KNOW-HOW, SOFTWARE, MARKETING METHODS, PLANS, PERSONNEL, SUPPLIERS,
COMPETITORS, MARKETS OR OTHER SPECIALIZED INFORMATION OR PROPRIETARY MATTERS.
NEITHER SELLERS NOR THEIR AFFILIATES SHALL USE OR DIVULGE ANY
CONFIDENTIAL INFORMATION AFTER THE CLOSING DATE, EXCEPT ON BEHALF OF PURCHASER
OR ANY OF ITS AFFILIATES; PROVIDED, HOWEVER, THAT THE COVENANTS CONTAINED IN
THIS SECTION 8.6(B) SHALL NOT APPLY TO THE FOLLOWING: (I) INFORMATION THAT IS
ALREADY IN THE PUBLIC DOMAIN OR GENERALLY AVAILABLE TO PERSONS IN THE SAME OR
SIMILAR INDUSTRIES AS SELLERS, PURCHASER OR ANY OF THEIR AFFILIATES; (II)
INFORMATION THAT BECOMES PART OF THE PUBLIC DOMAIN OR GENERALLY AVAILABLE TO
COMPANIES IN THE SAME OR SIMILAR INDUSTRIES AS SELLERS, PURCHASER OR ANY OF
THEIR AFFILIATES BY PUBLICATION OR OTHERWISE OTHER THAN THROUGH ANY ACTION ON
THE PART OF SELLERS AND THEIR AFFILIATES IN VIOLATION OF THIS AGREEMENT; (III)
INFORMATION THAT SELLERS AND/OR THEIR AFFILIATES RECEIVED FROM A THIRD PARTY
WHO, TO THE KNOWLEDGE OF SELLER, WAS NOT LEGALLY OR CONTRACTUALLY PROHIBITED
FROM DISCLOSING SUCH INFORMATION; OR (IV) INFORMATION THAT SELLERS OR THEIR
AFFILIATES ARE LEGALLY COMPELLED TO DISCLOSE, BUT ONLY AS TO THE DISCLOSURE THAT
IT IS SO COMPELLED.
Non-solicitation.
NEITHER SELLERS NOR THEIR AFFILIATES SHALL, FOR A PERIOD OF THREE
YEARS AFTER THE CLOSING DATE, EITHER DIRECTLY OR INDIRECTLY, FOR THEIR OWN
BENEFIT OR THE BENEFIT OF ANY OTHER PERSON, SOLICIT OR ATTEMPT TO SOLICIT, OR
DIVERT OR ATTEMPT TO DIVERT, FROM PURCHASER OR ITS AFFILIATES OR THEIR
SUCCESSORS IN INTEREST AFTER THE CLOSING DATE, OR DISRUPT OR ATTEMPT TO DISRUPT,
ANY CUSTOMERS OR SUPPLIERS OF THE BUSINESS, IN EACH CASE TO THE MATERIAL
DETRIMENT OF THE BUSINESS.
NEITHER SELLERS NOR THEIR AFFILIATES SHALL, FOR A PERIOD OF THREE
YEARS AFTER THE CLOSING DATE, DIRECTLY OR INDIRECTLY, EITHER FOR THEIR OWN
BENEFIT OR THE BENEFIT OF ANY OTHER PERSON, SOLICIT OR ATTEMPT TO SOLICIT,
INDUCE OR ATTEMPT TO INDUCE, ANY INDIVIDUAL WHO IS THEN EMPLOYED AT THE BUSINESS
BY PURCHASER OR ANY OF ITS AFFILIATES OR THEIR SUCCESSORS IN INTEREST, TO LEAVE
HIS OR HER EMPLOYMENT WITH PURCHASER OR ANY OF ITS AFFILIATES OR THEIR
SUCCESSORS IN INTEREST. NOTWITHSTANDING THE FOREGOING, SELLERS AND THEIR
SUBSIDIARIES SHALL NOT BE PRECLUDED FROM HIRING ANY SUCH PERSON EMPLOYED BY THE
PURCHASER OR ANY OF ITS AFFILIATES OR THEIR SUCCESSORS WHO (I) IS NOT A
TRANSFERRED EMPLOYEE AND WHO INITIATES DISCUSSIONS REGARDING SUCH EMPLOYMENT
WITHOUT ANY DIRECT OR INDIRECT SOLICITATION BY SELLERS AND THEIR AFFILIATES;
(II) RESPONDS TO ANY PUBLIC ADVERTISEMENT PLACED BY SELLERS AND THEIR AFFILIATES
OR ANY AGENT THEREOF; OR (III) HAS BEEN TERMINATED BY PURCHASER OR ANY OF ITS
AFFILIATES OR THEIR SUCCESSORS IN INTEREST PRIOR TO THE DATE HEREOF.
37
Seller Non-compete. In exchange for Purchaser's agreements herein,
including Purchaser's acquisition of certain Confidential Information and
business goodwill of Sellers and the Selling Affiliates relating to the Business
and the Purchased Assets for good and valuable consideration, Seller and its
Subsidiaries and Dura, individually and collectively, hereby agree that for a
period of five years after the Closing Date, neither Sellers nor their
Subsidiaries and Dura shall engage, directly or indirectly, either as an owner
or equity holder (other than as an equity holder of less than 10% of the issued
and outstanding shares of a publicly traded company) or otherwise, within any
State within the United States or in any Province in Canada in which Sellers and
their Subsidiaries conducted the Business in the 24-month period immediately
preceding the Closing Date, in a business enterprise that competes in any
material respect with the Business as presently conducted or as conducted on the
Closing Date (the "Restricted Business"); provided that, notwithstanding the
foregoing, Sellers, Dura and their Subsidiaries may hereafter purchase, or
otherwise become affiliated with or participate in, any enterprise engaged in
the Restricted Business if (i) less than $30 million of annual aggregate gross
revenues of such enterprise for its most recently completed fiscal year were
derived from the Restricted Business and (ii) the annual aggregate gross
revenues of such enterprise for its most recently completed fiscal year that
were derived from the Restricted Business, when combined with the annual
aggregate gross revenues for the most recent completed fiscal year derived from
the Restricted Business of all of the other enterprises owned by Sellers, Dura
and their Subsidiaries were less than $50 million in the aggregate (the "Revenue
Limits"); provided, however, that Sellers and their Subsidiaries may hereafter
acquire a controlling interest in any enterprise that is engaged in a Restricted
Business even if the aggregate gross revenues of such enterprises for its most
recently completed fiscal year place Sellers, Dura and their Subsidiaries over
the Revenue Limits, so long as Sellers, Dura and their Subsidiaries shall use
reasonable efforts to divest, as soon as reasonably practicable, a portion of
their interest in such enterprise relating to the Restricted Business such that
the Revenue Limits would not be exceeded after giving effect to such
divestiture. Notwithstanding the above, the operation by Sellers or Sellers'
Affiliates of the China Joint Venture and the Mass Transit Business, in each
case as presently conducted, shall not constitute a violation of this Section
8.8.
Purchaser Non-compete. In exchange for the Seller's agreements herein,
including Purchaser's acquisition and licensing of certain Intellectual Property
and other Confidential Information and the parties' mutual intention to preserve
the goodwill of the Mass Transit Business under the ownership of Dura after the
Closing, Purchaser hereby agrees that for a period of three years after the
Closing Date, Purchaser shall not engage, directly or indirectly, either as an
owner or equity holder (other than as an equity holder of less than 10% of the
issued and outstanding shares of a publicly traded company) or otherwise, within
any State within the United States or in any Province in Canada in which Sellers
and their Subsidiaries conducted the Mass Transit Business in the 24-month
period immediately preceding the Closing Date, in a business enterprise that
competes in any material respect with the Mass Transit Business as presently
conducted (the "Purchaser Restricted Business"); provided that, notwithstanding
the foregoing, Purchaser may hereafter purchase, or otherwise become affiliated
with or participate in, any enterprise engaged in the Purchaser Restricted
Business if (i) less than $30 million of annual aggregate gross revenues of such
enterprise for its most recently completed fiscal year were derived from the
Purchaser Restricted Business and (ii) the annual aggregate gross revenues of
such enterprise for its most recently completed fiscal year
38
that were derived from the Purchaser Restricted Business, when combined with the
annual aggregate gross revenues for the most recent completed fiscal year
derived from the Purchaser Restricted Business of all of the other enterprises
owned by Purchaser were less than $50 million in the aggregate (the "Purchaser
Revenue Limits"); provided, however, that Purchaser may hereafter acquire a
controlling interest in any enterprise that is engaged in a Purchaser Restricted
Business even if the aggregate gross revenues of such enterprises for its most
recently completed fiscal year place Purchaser over the Purchaser Revenue
Limits, so long as Purchaser shall use reasonable efforts to divest, as soon as
reasonably practicable, a portion of their interest in such enterprise relating
to the Purchaser Restricted Business such that the Purchaser Revenue Limits
would not be exceeded after giving effect to such divestiture. Notwithstanding
the above, the manufacture and sale by Purchaser of glass for windows as
component parts shall not constitute a violation of this Section 8.9.
Exclusivity. Sellers acknowledge they have exercised diligent, commercially
reasonably efforts to market potential bids for the sale of the Business through
the date of this Agreement. Pursuant to such efforts, and as consideration for
the substantial expenditures of time, effort and expense undertaken and
continuing by Purchaser in connection with the completion of its due diligence
review of the Business and the preparation, negotiation and execution of this
Agreement, Sellers shall not, through its agents or otherwise, unilaterally
solicit or otherwise initiate negotiations with any Person for the purpose of
naming such Person as the Stalking Horse Bidder (as defined in the Bidding
Procedures Order, attached hereto as Exhibit H), and Sellers acknowledge they
intend Purchaser to be the Stalking Horse Bidder; however, consistent with their
fiduciary duties to elicit the highest and best offer for the Purchased Assets
and to conduct a competitive Auction, and in accordance with Section 7.8 hereof,
Sellers may solicit, encourage and negotiate Qualifying Bids for submission at
the Auction as a Competing Bid.
Preservation of Records. For a period of seven years after the Closing Date
(or such longer period as may be required by any Governmental Body or ongoing
claim):
NO PARTY HERETO SHALL DISPOSE OF OR DESTROY ANY OF THE BUSINESS
RECORDS AND FILES OF THE BUSINESS HELD BY SUCH PARTY AND RELATING TO THE PERIOD
PRECEDING THE CLOSING DATE. IF A PARTY HERETO WISHES TO DISPOSE OF OR DESTROY
SUCH RECORDS AND FILES AFTER THAT TIME, OR IF ANY PARTY HERETO WISHES AT ANY
TIME TO DESTROY ANY BUSINESS RECORDS AND FILES OF THE BUSINESS HELD BY IT, THE
PARTY PROPOSING SUCH DISPOSITION OR DESTRUCTION SHALL FIRST GIVE 30 DAYS' PRIOR
WRITTEN NOTICE TO THE OTHER PARTY, AND SUCH OTHER PARTY SHALL HAVE THE RIGHT, AT
ITS OPTION AND EXPENSE, UPON PRIOR WRITTEN NOTICE TO THE NOTIFYING PARTY WITHIN
SUCH 30-DAY PERIOD, TO TAKE POSSESSION OF THE RECORDS AND FILES WITHIN 15 DAYS
AFTER THE DATE OF SUCH NOTICE. THE PARTY PRESERVING THE RECORDS SHALL BEAR THE
COSTS ASSOCIATED WITH SUCH ACTION.
EACH PARTY (THE "REQUESTED PARTY") SHALL ALLOW THE OTHER PARTY AND ANY
OF ITS DIRECTORS, OFFICERS, EMPLOYEES, COUNSEL, REPRESENTATIVES, ACCOUNTANTS AND
AUDITORS REASONABLE ACCESS DURING NORMAL BUSINESS HOURS TO ALL EMPLOYEES AND
FILES OF THE REQUESTED PARTY AND ANY BOOKS AND RECORDS AND OTHER MATERIALS
INCLUDED IN THE PURCHASED ASSETS RELATING TO PERIODS PRIOR TO THE CLOSING DATE
IN CONNECTION WITH GENERAL BUSINESS PURPOSES, WHETHER OR NOT RELATING TO OR
ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (INCLUDING
THE PREPARATION OF TAX RETURNS, AMENDED TAX RETURN OR CLAIM FOR REFUND (AND ANY
MATERIALS NECESSARY FOR THE PREPARATION OF ANY OF THE FOREGOING), AND FINANCIAL
STATEMENTS FOR PERIODS ENDING ON OR PRIOR TO THE CLOSING DATE, THE MANAGEMENT
AND HANDLING OF ANY AUDIT, INVESTIGATION, LITIGATION OR OTHER PROCEEDING IN,
WHETHER SUCH AUDIT, INVESTIGATION, LITIGATION OR OTHER PROCEEDING IS A MATTER
WITH RESPECT TO WHICH INDEMNIFICATION MAY BE SOUGHT HEREUNDER), TO COMPLY WITH
THE RULES AND REGULATIONS OF THE INTERNAL REVENUE SERVICE, THE SECURITIES AND
EXCHANGE COMMISSION OR ANY OTHER GOVERNMENTAL BODY OR OTHERWISE RELATING TO
SELLERS' OTHER BUSINESSES OR OPERATIONS.
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Publicity. Neither Sellers nor Purchaser shall issue any press release or
public announcement concerning this Agreement or the transactions contemplated
hereby without obtaining the prior written approval of the other Party hereto,
which approval will not be unreasonably withheld or delayed, unless, in the sole
judgment of Purchaser or Sellers, disclosure is otherwise required by applicable
Law or by the Bankruptcy Court with respect to filings to be made with the
Bankruptcy Court in connection with this Agreement or by the applicable rules of
any stock exchange on which Purchaser or Sellers list securities, provided that
the Party intending to make such release shall use its reasonable efforts
consistent with such applicable Law or Bankruptcy Court requirement to consult
with the other Party with respect to the text thereof.
Supplementation and Amendment of Schedules. Sellers may, at their option,
include in the Schedules items that are not material to avoid any
misunderstanding, and such inclusion, or any references to dollar amounts, shall
not be deemed to be an acknowledgement or representation that such items are
material, to establish any standard of materiality or to define further the
meaning of such terms for purposes of this Agreement. From time to time prior to
the Closing, Sellers shall have the right to supplement or amend the Schedules
with respect to any matter hereafter arising. No such supplement or amendment
shall be taken into account in determining whether or not the condition to
closing set forth in Section 10.1(a) has been satisfied.
Cooperation with Seller. Purchaser shall cooperate with the Seller to the
extent necessary to allow Seller to administer any Employee Plan subject to
Title IV of ERISA ("Title IV Plan") after the Closing, including to allow Seller
to provide such information as may be requested by the Pension Benefit Guaranty
Corporation ("PBGC"). Without limiting the generality of the foregoing,
Purchaser shall, at the Seller's reasonable request, use any of the Purchased
Assets (including, without limitation, records, computers, computer software and
rights under Assumed Contracts) to make any calculation necessary or desirable,
or to provide any information necessary or desirable, to the administration of
any Title IV Plan, the making of any benefit determination or to facilitate the
taking by the PBGC of any action it determines to take in respect of any person
or group of persons at any time covered by, or a beneficiary of, any Title IV
Plan. Seller shall reimburse Purchaser for all expenses reasonably incurred by
Purchaser in responding to any request or taking any action pursuant to this
Section 8.14; provided that Purchaser shall notify Seller of such expenses in
advance of incurring them to give the Seller a reasonable opportunity to
determine whether such action and such expense is necessary. Dura Marks.
THE DURA MARKS MAY APPEAR ON SOME OF THE PURCHASED ASSETS, INCLUDING
ON SIGNAGE. PURCHASER ACKNOWLEDGES AND AGREES THAT IT DOES NOT HAVE AND, UPON
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, WILL NOT HAVE,
ANY RIGHT, TITLE, INTEREST, LICENSE OR OTHER RIGHT TO USE THE DURA MARKS.
PURCHASER AGREES THAT IT SHALL, (I) AS SOON AS PRACTICABLE AFTER THE
CLOSING DATE AND IN ANY EVENT WITHIN 120 DAYS FOLLOWING THE CLOSING DATE, CEASE
TO MAKE ANY USE OF THE DURA MARKS, AND (II) IMMEDIATELY AFTER THE CLOSING DATE,
CEASE TO HOLD ITSELF OUT AS HAVING ANY AFFILIATION WITH SELLERS. PURCHASERS
SHALL USE ITS BEST EFFORTS TO REMOVE, STRIKE OVER OR OTHERWISE OBLITERATE THE
DURA MARKS FROM THE PURCHASED ASSETS, AND ALL OTHER MATERIALS, INCLUDING,
WITHOUT LIMITATION, ANY VEHICLES, BUSINESS CARDS, SCHEDULES, STATIONERY,
PACKAGING MATERIALS, DISPLAYS, SIGNS, PROMOTIONAL MATERIALS, MANUALS, FORMS, AND
OTHER MATERIALS; PROVIDED THAT PURCHASER MAY, DURING THE 120-DAY PERIOD
FOLLOWING THE CLOSING DATE, CONTINUE TO USE ANY SUCH MATERIAL BEARING THE DURA
MARKS TO THE EXTENT THAT IT IS NOT PRACTICABLE TO REMOVE OR COVER UP SUCH DURA
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MARKS. PURCHASER SHALL ALSO HAVE A RIGHT TO SELL OFF EXISTING INVENTORY OF
PRODUCTS THAT BEAR ANY OF THE DURA MARKS FOR A PERIOD OF 120 DAYS. ANY USE OF
THE DURA MARKS BY PURCHASER PURSUANT TO THIS SECTION SHALL: (X) BE IN CONFORMITY
WITH THE PRACTICES OF SELLERS AS OF THE CLOSING DATE, (Y) BE IN A MANNER THAT
DOES NOT IN ANY WAY HARM OR DISPARAGE SELLERS OR THE REPUTATION OR GOODWILL OF
THE DURA MARKS, AND (Z) BE CONTINGENT ON PURCHASER MAINTAINING THE QUALITY OF
GOODS AND SERVICES USED IN CONNECTION WITH THE DURA MARKS AT A STANDARD AT LEAST
AS HIGH AS THAT OF THE GOODS AND SERVICES OFFERED AND SOLD BY SELLERS AS OF THE
CLOSING DATE.
License Agreement. On the Closing Date, Sellers and Purchaser shall enter
into a license agreement ("License Agreement") in substantially the same form as
Exhibit F attached hereto, which license shall provide for mutual step-in rights
in the event of third party infringement of any licensed intellectual property,
and pursuant to which:
SELLERS (AND THEIR AFFILIATES, IF APPLICABLE) SHALL GRANT TO PURCHASER
A PERPETUAL, WORLDWIDE, NON-EXCLUSIVE, ROYALTY-FREE LICENSE (WITH THE RIGHT TO
GRANT SUBLICENSES UPON SELLERS' PRIOR WRITTEN APPROVAL, WHICH SHALL NOT BE
UNREASONABLY WITHHELD) TO USE, SOLELY IN CONNECTION WITH THE BUSINESS, (I) THOSE
PATENTS AND PATENT APPLICATIONS IDENTIFIED ON PART (A) OF SCHEDULE 8.16, AND
(II) ANY TECHNOLOGY OWNED BY SELLERS (OR ANY OF THEIR AFFILIATES) OR LICENSED
(TO THE EXTENT SUBLICENSING IS PERMITTED) TO SELLERS (OR ANY OF THEIR
AFFILIATES) THAT IS USED IN THE OPERATION OF THE BUSINESS (BUT NOT PRIMARILY
USED IN THE OPERATION OF THE BUSINESS) AS OF THE CLOSING DATE. SELLERS (AND
THEIR AFFILIATES, IF APPLICABLE) AGREE NOT TO FURTHER LICENSE THE INTELLECTUAL
PROPERTY LICENSED TO PURCHASER PURSUANT TO THIS SECTION 8.16(A) TO A THIRD PARTY
COMPETITOR IN THE BUSINESS AS THE BUSINESS IS CONDUCTED BY SELLERS AND THEIR
AFFILIATES IMMEDIATELY PRIOR TO THE CLOSING.
PURCHASER SHALL GRANT TO SELLERS (AND THEIR AFFILIATES, IF APPLICABLE)
A PERPETUAL, WORLDWIDE, NON-EXCLUSIVE, ROYALTY-FREE LICENSE (WITH THE RIGHT TO
GRANT SUBLICENSES UPON PURCHASER'S PRIOR WRITTEN APPROVAL, WHICH SHALL NOT BE
UNREASONABLY WITHHELD) TO USE, SOLELY IN CONNECTION WITH THE MASS TRANSIT
BUSINESS AND ANY OTHER MOTORIZED VEHICLE BUSINESS OF SELLERS OR THEIR AFFILIATES
(OTHER THAN THE BUSINESS) (THE "RETAINED BUSINESSES"), (I) THOSE PATENTS
IDENTIFIED ON PART (B) SCHEDULE 8.16, AND (II) ANY TECHNOLOGY PRIMARILY USED IN
THE BUSINESS AS OF THE CLOSING DATE. PURCHASER AGREES NOT TO FURTHER LICENSE THE
INTELLECTUAL PROPERTY LICENSED TO SELLERS (AND THEIR AFFILIATES) PURSUANT TO
THIS SECTION 8.16(B) TO A THIRD PARTY COMPETITOR IN THE RETAINED BUSINESSES AS
SUCH RETAINED BUSINESSES ARE CONDUCTED BY SELLERS AND THEIR AFFILIATES
IMMEDIATELY PRIOR TO THE CLOSING.
Non Disturbance Agreements. Seller shall use commercially reasonable
efforts between the date hereof and the Closing to obtain from each lender
holding a mortgage on a Leased Real Property (or the underlying fee interests),
excluding any Leased Property with a month-to-month term, an agreement, in form
and substance reasonably satisfactory to Purchaser, under which such lender
shall agree that, in the event of the foreclosure of such mortgage, such lender
shall recognize the tenant of such Leased Real Property on the terms and
conditions of the lease of such Leased Real Property, subject to customary
conditions and limitations, which agreement will not be discharged by the Sale
Order.
Landlord Waivers. Seller shall use commercially reasonable efforts between
the date hereof and the Closing to obtain from each landlord of a Leased Real
Property, other than a Leased Real Property with a month-to-month term, a waiver
and consent agreement between such landlord and Purchaser's lender or lenders,
in form and substance reasonably acceptable to such lender or lenders.
Title Policies. Seller shall use commercially reasonable efforts between
the date hereof and the Closing to assist Purchaser, at Purchaser's sole cost
and expense, to (i) remove from the Purchaser's title policies those exceptions
that are reasonably objectionable to Purchaser and (ii) add endorsements to the
title policies as reasonably requested by Purchaser.
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Environmental Waiver. Notwithstanding anything in this Agreement to the
contrary, Purchaser and its Affiliates waive any right, whether arising at law
or in equity, to seek contribution, cost recovery, damages, or any other
recourse or remedy from Sellers or its Affiliates, and hereby covenant not to
sue and release Seller and its Affiliates, with respect to any claim, demand or
liability relating to any environmental, health or safety matter, including
without limitation, any matter arising under Environmental Laws or relating to
Hazardous Substances, with respect to the Business, the Facilities, the Owned
Real Property, the Leased Real Property or the Purchased Assets. Notwithstanding
the foregoing, the provisions of this Section 8.20 shall not affect or impair
the ability of Purchaser to defend against a third party claim, demand or
liability relating to any environmental, health or safety matter by asserting to
such third party that such claim, demand or liability is an Excluded Liability
and was not assumed by Purchaser.
Responsibility for Excluded Liabilities. All of the Excluded Liabilities
shall remain the responsibility of, and shall be retained, paid, performed and
discharged solely by, Sellers.
Transition Services. Sellers shall cooperate with Purchaser as reasonably
appropriate and otherwise use commercially reasonable efforts between the date
hereof and the Closing to commence transitioning to the Business the services
that will be provided by Sellers to Purchaser following the Closing pursuant to
the terms of the Transition Services Agreement.
EMPLOYEES AND EMPLOYEE BENEFITS
Employment.
SELLERS SHALL PROVIDE PURCHASER WITHIN A REASONABLE PERIOD PRIOR TO
THE CLOSING DATE A LIST OF ALL EMPLOYEES, INCLUDING WITH RESPECT TO ANY INACTIVE
EMPLOYEE, THE ANTICIPATED DATE OF RETURN TO ACTIVE EMPLOYMENT. SELLERS SHALL
TERMINATE ALL EMPLOYEES ON THE CLOSING DATE, AND PURCHASER SHALL OFFER
EMPLOYMENT EFFECTIVE AS OF THE CLOSING TO ALL SUCH EMPLOYEES WHO ARE AUTHORIZED
TO BE EMPLOYED IN THE UNITED STATES ON TERMS AND CONDITIONS THAT ARE INITIALLY
THE SAME IN ALL MATERIAL RESPECTS TO THE TERMS AND CONDITIONS OF THE EMPLOYEE'S
EMPLOYMENT WITH SELLER IMMEDIATELY PRIOR TO CLOSING (INCLUDING POSITION,
RESPONSIBILITIES AND JOB LOCATION). EMPLOYEES WHO ACCEPT PURCHASER'S OFFER OF
EMPLOYMENT SHALL BE REFERRED TO AS THE "TRANSFERRED EMPLOYEES". EXCEPT AS
OTHERWISE SPECIFICALLY SET FORTH HEREIN, SELLERS SHALL HAVE NO RESPONSIBILITY
WHATSOEVER FOR ANY LIABILITIES OR OBLIGATIONS THAT RELATE IN ANY WAY TO
PURCHASER'S OFFERS OF EMPLOYMENT.
SELLERS SHALL BE RESPONSIBLE FOR AND SHALL INDEMNIFY AND HOLD HARMLESS
PURCHASER FROM ANY LIABILITIES OR OBLIGATIONS THAT RELATE IN ANY WAY TO SELLER'S
TERMINATION OF CURRENT OR FORMER EMPLOYEES' EMPLOYMENT ON OR PRIOR TO THE
CLOSING DATE AND TO SELLER'S EMPLOYMENT OF CURRENT OR FORMER EMPLOYEES ON OR
PRIOR TO THE CLOSING DATE, EXCEPT TO THE EXTENT ANY SUCH SELLER LIABILITIES
ARISE AS A RESULT OF ACTIONS TAKEN BY PURCHASER AFTER THE CLOSING AS DESCRIBED
IN SECTION 9.1(C). PURCHASER SHALL BE RESPONSIBLE FOR AND SHALL INDEMNIFY AND
HOLD HARMLESS SELLER FROM ANY LIABILITIES OR OTHER OBLIGATIONS THAT RELATE IN
ANY WAY TO PURCHASER'S TERMINATION OF TRANSFERRED EMPLOYEES' (OR ANY OTHER
INDIVIDUAL'S) EMPLOYMENT AND TO PURCHASER'S EMPLOYMENT OF TRANSFERRED EMPLOYEES
(OR ANY OTHER INDIVIDUAL) ON AND AFTER THE CLOSING DATE.
PURCHASER SHALL NOT DURING THE 180-DAY PERIOD BEGINNING ON THE CLOSING
DATE TERMINATE THE EMPLOYMENT OF FULL-TIME EMPLOYEES (AS DETERMINED FOR PURPOSES
OF THE WARN ACT) OF THE BUSINESS HIRED BY PURCHASER SO AS TO CAUSE ANY "PLANT
CLOSING" OR "MASS LAYOFF" (AS THOSE TERMS ARE DEFINED IN THE WARN ACT) SUCH THAT
SELLERS HAVE ANY OBLIGATION UNDER THE WARN ACT THAT SELLERS OTHERWISE WOULD NOT
HAVE HAD ABSENT
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SUCH TERMINATIONS, UNLESS THE PURCHASER FULLY INDEMNIFIES, DISCHARGES AND HOLDS
HARMLESS SELLERS FROM ANY AND ALL LIABILITIES ARISING UNDER THE WARN ACT IN
RELATION TO SUCH ACTIONS BY THE PURCHASER.
Employee Benefits in General.
FOR THE ONE-YEAR PERIOD BEGINNING ON THE CLOSING DATE, TO THE EXTENT A
TRANSFERRED EMPLOYEE REMAINS EMPLOYED BY PURCHASER FOR SUCH ONE-YEAR PERIOD,
PURCHASER SHALL PROVIDE OR CAUSE TO BE PROVIDED TO SUCH TRANSFERRED EMPLOYEE A
BASE SALARY OR HOURLY WAGE THAT IS NOT LESS THAN SUCH EMPLOYEE'S BASE SALARY OR
HOURLY WAGE IN EFFECT IMMEDIATELY PRIOR TO THE CLOSING DATE; PROVIDED, THAT
NOTHING HEREIN SHALL CHANGE ANY TRANSFERRED EMPLOYEE'S AT-WILL STATUS OR
RESTRICT PURCHASER'S ABILITY TO TERMINATE ANY TRANSFERRED EMPLOYEE'S EMPLOYMENT.
PURCHASER SHALL PAY THE AMOUNT OF ANY UNPAID BONUSES, INCENTIVES OR COMMISSIONS
WITH RESPECT TO THE PERIOD COMMENCING JANUARY 1, 2007 AND ENDING ON THE CLOSING
DATE TO THE EXTENT INCLUDED IN CURRENT LIABILITIES AT THE SAME TIME AND IN THE
SAME MANNER AS PURCHASER PAYS BONUSES, INCENTIVES OR COMMISSIONS WITH RESPECT TO
FISCAL YEAR 2007. PURCHASER AGREES TO TAKE ANY AND ALL ACTIONS NECESSARY OR
APPROPRIATE TO PROVIDE THAT PURCHASER SHALL ASSUME AND MAINTAIN ALL LIABILITIES
WITH RESPECT TO EARNED, BUT UNPAID WAGES, HOLIDAY PAY OR VACATION PAY FOR EACH
TRANSFERRED EMPLOYEE, TO THE EXTENT INCLUDED IN THE CURRENT LIABILITIES ON THE
CLOSING STATEMENT, AND THAT SELLER AND ITS SUBSIDIARIES SHALL HAVE NO FURTHER
LIABILITY WITH RESPECT THERETO. SELLER SHALL RETAIN LIABILITIES RELATED TO
WORKERS' COMPENSATION CLAIMS AGAINST SELLERS FOR CURRENT OR FORMER EMPLOYEES
BASED ON OCCURRENCES PRIOR TO THE CLOSING DATE BUT ONLY TO THE EXTENT (I) THE
AGGREGATE AMOUNT OF SUCH WORKERS' COMPENSATION CLAIMS EXCEEDS THE LIABILITIES
FOR SUCH CLAIMS THAT ARE INCLUDED IN THE CURRENT LIABILITIES ON THE CLOSING
STATEMENT AND (II) ANY SUCH CLAIM FOR WORKERS' COMPENSATION IS MADE PRIOR TO, ON
OR WITHIN 90 DAYS AFTER THE CLOSING DATE. PURCHASER SHALL BE RESPONSIBLE FOR ALL
OTHER LIABILITIES RELATED TO WORKERS' COMPENSATION CLAIMS FOR TRANSFERRED
EMPLOYEES.
EFFECTIVE AS OF THE CLOSING DATE, PURCHASER SHALL CAUSE EACH
TRANSFERRED EMPLOYEE WHO WAS COVERED UNDER THE EMPLOYEE PLANS IMMEDIATELY PRIOR
TO THE CLOSING DATE TO BE COVERED UNDER (I) A GROUP HEALTH PLAN MAINTAINED OR
ESTABLISHED BY PURCHASER THAT IS SUBSTANTIALLY SIMILAR TO THE GROUP HEALTH PLAN
MAINTAINED BY THE SELLERS IMMEDIATELY PRIOR TO THE CLOSING DATE FOR SUCH
EMPLOYEE AND (II) OTHER EMPLOYEE BENEFIT PLANS, PROGRAMS AND ARRANGEMENTS
MAINTAINED OR ESTABLISHED BY PURCHASER THAT ARE SUBSTANTIALLY SIMILAR IN THE
AGGREGATE TO THE OTHER EMPLOYEE PLANS IN EFFECT IMMEDIATELY PRIOR TO THE CLOSING
(COLLECTIVELY, THE "PURCHASER PLANS"). THE PURCHASER PLANS SHALL RECOGNIZE EACH
TRANSFERRED EMPLOYEE'S PRIOR SERVICE THAT IS RECOGNIZED UNDER THE EMPLOYEE PLANS
(INCLUDING PRIOR SERVICE WITH PREDECESSOR EMPLOYERS TO THE EXTENT SUCH PRIOR
SERVICE IS RECOGNIZED UNDER THE EMPLOYEE PLANS) FOR ELIGIBILITY AND VESTING
PURPOSES AND, IN THE CASE OF VACATION OR SEVERANCE BENEFITS, FOR PURPOSES OF
DETERMINING THE AMOUNT OF BENEFITS. NO WAITING PERIOD OR EXCLUSION FROM COVERAGE
OF ANY PRE-EXISTING CONDITION SHALL APPLY TO ANY TRANSFERRED EMPLOYEE (OR THEIR
DEPENDENTS) UNDER ANY PURCHASER PLAN, EXCEPT TO THE EXTENT ANY SUCH WAITING
PERIOD OR EXCLUSION WAS OTHERWISE APPLICABLE TO ANY SUCH TRANSFERRED EMPLOYEE
UNDER THE CORRESPONDING EMPLOYEE PLAN IMMEDIATELY PRIOR TO THE CLOSING DATE. FOR
THE PLAN YEAR IN WHICH THE CLOSING OCCURS, ALL PAYMENTS, CHARGES AND EXPENSES OF
SUCH TRANSFERRED EMPLOYEES (AND THEIR ELIGIBLE DEPENDENTS) THAT WERE APPLIED
TOWARD THE DEDUCTIBLE AND OUT-OF-POCKET MAXIMUMS UNDER THE EMPLOYEE PLANS THAT
ARE WELFARE PLANS (WITHIN THE MEANING OF SECTION 3(1) OF ERISA) SHALL BE
CREDITED TOWARD ANY DEDUCTIBLE AND OUT-OF-POCKET MAXIMUM APPLICABLE TO THE
ANALOGOUS PURCHASER PLAN.
Health & Welfare Claims. Seller and/or Employee Plans shall be responsible
for all health and welfare claims incurred prior to the Closing Date by
Employees (and their eligible dependents). Purchaser or Purchaser Plans shall be
responsible for all health and welfare claims incurred on and after the Closing
Date by Transferred Employees (and their eligible dependents). For this purpose,
claims for health benefits shall be considered to be incurred when the services
related to such claims were provided, and claims for other welfare benefits
shall be considered to be incurred when the date of loss occurred. Seller and/or
Employee Plans shall be solely responsible to comply with the notice and
continuation coverage requirements of COBRA with respect to any Employee (other
than the Transferred Employees) who experiences a qualifying event prior to the
Closing Date or as a result of the Closing. The Purchaser shall be
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solely responsible for satisfying the notice and continuation coverage
requirements of COBRA for Transferred Employees (and their eligible dependents)
who are entitled to elect COBRA coverage on account of a qualifying event
occurring on or after the Closing Date.
Retirement Plans. Effective as of the Closing Date, Purchaser shall take
all action necessary or appropriate to cause a defined contribution plan adopted
or maintained by Purchaser (the "Purchaser 401(k) Plan") to recognize prior
service with Seller or any of its Subsidiaries for purposes of vesting and
participation. Seller shall permit and Purchaser shall cause the Purchaser
401(k) Plan to accept a "rollover" of any Transferred Employees' account
balances under the 401(k) Plan of Seller and its Affiliates, as amended from
time to time (the "Seller 401(k) Plan") to the Purchaser 401(k) Plan. In
connection with any direct rollover elected by any Transferred Employee,
Purchaser shall allow any such Transferred Employee's outstanding loan and
related promissory note under the Seller 401(k) Plan to be rolled over into the
Purchaser 401(k) Plan.
CONDITIONS TO CLOSING
Conditions Precedent to Obligations of Purchaser. The obligation of
Purchaser to consummate the transactions contemplated by this Agreement is
subject to the satisfaction, on or prior to the Closing Date, of each of the
following conditions (any or all of which may be waived by Purchaser in whole or
in part to the extent permitted by applicable Law):
EACH OF THE REPRESENTATIONS AND WARRANTIES OF SELLERS SET FORTH IN
THIS AGREEMENT SHALL BE TRUE AND CORRECT, ON AND AS OF THE DATE HEREOF AND AS OF
THE CLOSING DATE (OR ON THE DATE WHEN MADE IN THE CASE OF ANY REPRESENTATION AND
WARRANTY WHICH SPECIFICALLY RELATES TO AN EARLIER DATE) WITH THE SAME FORCE AND
EFFECT AS THOUGH MADE ON AND AS OF THE CLOSING DATE, IN EACH CASE IN ALL
RESPECTS; PROVIDED, THAT, IN THE CASE OF ANY REPRESENTATIONS AND WARRANTIES THAT
ARE NOT QUALIFIED BY ANY REFERENCE TO MATERIAL ADVERSE EFFECT, THIS CONDITION
SHALL BE DEEMED SATISFIED IF (I) IN THE CASE OF REPRESENTATIONS AND WARRANTIES
SET FORTH IN SECTION 5.1 (ORGANIZATION AND GOOD STANDING), SECTION 5.2
(AUTHORIZATION OF AGREEMENT), AND THE FIRST SENTENCE OF SECTION 5.4 (TITLE TO
PURCHASED ASSETS), SUCH REPRESENTATIONS AND WARRANTIES ARE TRUE AND CORRECT AS
OF THE DATE HEREOF AND AS OF THE CLOSING DATE (OR SUCH EARLIER REFERENCED DATE)
IN ALL MATERIAL RESPECTS AND (II) IN THE CASE OF OTHER REPRESENTATIONS AND
WARRANTIES CONTAINED IN ARTICLE V, SUCH REPRESENTATIONS AND WARRANTIES ARE TRUE
AND CORRECT AS OF THE DATE HEREOF AND AS OF THE CLOSING DATE (OR SUCH EARLIER
REFERENCED DATE), EXCEPT FOR SUCH BREACHES THAT WOULD NOT RESULT IN A MATERIAL
IMPAIRMENT (PROVIDED, HOWEVER, THAT FOR PURPOSES OF DETERMINING WHETHER A BREACH
HAS OCCURRED AND THE AMOUNT OF LIABILITY OR ADVERSE EFFECT RELATING TO SUCH
BREACH, SUCH REPRESENTATIONS AND WARRANTIES SHALL BE CONSTRUED AS IF THEY WERE
NOT QUALIFIED BY THE TERMS "MATERIAL" OR "MATERIALITY" OR OTHER TERMS OF SIMILAR
IMPORT OR EFFECT), AND PURCHASER SHALL HAVE RECEIVED A CERTIFICATE SIGNED BY AN
AUTHORIZED OFFICER OF SELLER ON BEHALF OF ALL SELLERS, DATED THE CLOSING DATE,
TO THE FOREGOING EFFECT;
EXCEPT AS WOULD NOT HAVE A MATERIAL IMPAIRMENT, SELLERS SHALL HAVE
PERFORMED AND COMPLIED IN ALL MATERIAL RESPECTS WITH ALL OBLIGATIONS AND
AGREEMENTS REQUIRED IN THIS AGREEMENT TO BE PERFORMED OR COMPLIED WITH BY IT
PRIOR TO THE CLOSING DATE, AND PURCHASER SHALL HAVE RECEIVED A CERTIFICATE
SIGNED BY AN AUTHORIZED OFFICER OF SELLER ON BEHALF OF ALL SELLERS, DATED THE
CLOSING DATE, TO THE FORGOING EFFECT;
SINCE THE DATE OF THIS AGREEMENT NO EVENT HAS OCCURRED THAT HAS HAD,
OR COULD REASONABLY BE EXPECTED TO HAVE, A MATERIAL ADVERSE EFFECT; AND
44
SELLERS SHALL HAVE DELIVERED, OR CAUSED TO BE DELIVERED, TO PURCHASER
ALL OF THE ITEMS SET FORTH IN SECTION 4.2.
Conditions Precedent to Obligations of Sellers. The obligations of Sellers
to consummate the transactions contemplated by this Agreement are subject to the
satisfaction, prior to or on the Closing Date, of each of the following
conditions (any or all of which may be waived by Sellers in whole or in part to
the extent permitted by applicable Law):
EACH OF THE REPRESENTATIONS AND WARRANTIES OF PURCHASER SET FORTH IN
THIS AGREEMENT QUALIFIED AS TO MATERIALITY SHALL BE TRUE AND CORRECT, AND THOSE
NOT SO QUALIFIED SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS, AT AND AS
OF THE CLOSING DATE AS THOUGH MADE ON THE CLOSING DATE, EXCEPT TO THE EXTENT
SUCH REPRESENTATIONS AND WARRANTIES RELATE TO AN EARLIER DATE (IN WHICH CASE
SUCH REPRESENTATIONS AND WARRANTIES QUALIFIED AS TO MATERIALITY SHALL BE TRUE
AND CORRECT, AND THOSE NOT SO QUALIFIED SHALL BE TRUE AND CORRECT IN ALL
MATERIAL RESPECTS, ON AND AS OF SUCH EARLIER DATE), AND SELLERS SHALL HAVE
RECEIVED A CERTIFICATE SIGNED BY AN AUTHORIZED OFFICER OF PURCHASER, DATED THE
CLOSING DATE, TO THE FOREGOING EFFECT;
PURCHASER SHALL HAVE PERFORMED AND COMPLIED IN ALL MATERIAL RESPECTS
WITH ALL OBLIGATIONS AND AGREEMENTS REQUIRED BY THIS AGREEMENT TO BE PERFORMED
OR COMPLIED WITH BY PURCHASER ON OR PRIOR TO THE CLOSING DATE, AND SELLERS SHALL
HAVE RECEIVED A CERTIFICATE SIGNED BY AN AUTHORIZED OFFICER OF PURCHASER, DATED
THE CLOSING DATE, TO THE FOREGOING EFFECT;
PURCHASER SHALL HAVE DELIVERED, OR CAUSED TO BE DELIVERED, TO SELLERS
ALL OF THE ITEMS SET FORTH IN SECTION 4.3; AND
AT OR PRIOR TO THE CLOSING, SUBJECT TO SECTION 7.7, PURCHASER SHALL
HAVE CURED, OR MADE ARRANGEMENTS, SATISFACTORY TO SELLERS IN THEIR SOLE
DISCRETION, TO PROMPTLY CURE, ANY AND ALL MONETARY DEFAULTS UNDER THE ASSUMED
CONTRACTS AND ASSUMED LEASES THAT ARE REQUIRED TO BE CURED UNDER THE BANKRUPTCY
CODE, SO THAT THE ASSUMED CONTRACTS AND ASSUMED LEASES MAY BE ASSUMED BY SELLERS
AND ASSIGNED TO PURCHASER IN ACCORDANCE WITH THE PROVISIONS OF SECTION 365 OF
THE BANKRUPTCY CODE.
Conditions Precedent to Obligations of Purchaser and Sellers. The
respective obligations of Purchaser and Sellers to consummate the transactions
contemplated by this Agreement are subject to the satisfaction, on or prior to
the Closing Date, of each of the following conditions (any or all of which may
be waived by Purchaser and Sellers in whole or in part to the extent permitted
by applicable Law):
THERE SHALL NOT BE IN EFFECT ANY ORDER BY A GOVERNMENTAL BODY OF
COMPETENT JURISDICTION RESTRAINING, ENJOINING OR OTHERWISE PROHIBITING THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY;
THE BANKRUPTCY COURT SHALL HAVE ENTERED THE BIDDING PROCEDURES ORDER,
IN FORM AND SUBSTANCE REASONABLY ACCEPTABLE TO SELLERS AND PURCHASER;
DURA SHALL HAVE OBTAINED THE CONSENTS REQUIRED UNDER THE DIP
FINANCING, AND ALL LIENS ON THE PURCHASED ASSETS WITH RESPECT THERETO SHALL HAVE
BEEN RELEASED;
THE BANKRUPTCY COURT SHALL HAVE ENTERED THE SALE ORDER, AND SUCH SALE
ORDER SHALL NOT BE SUBJECT TO A STAY PROVIDING FOR AN APPEAL; AND
THE WAITING PERIOD APPLICABLE TO THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT UNDER THE HSR ACT SHALL HAVE EXPIRED OR EARLY TERMINATION SHALL HAVE
BEEN GRANTED.
45
Frustration of Closing Conditions. Neither Sellers nor Purchaser may rely
on the failure of any condition set forth in Section 10.1, 10.2 or 10.3, as the
case may be, if such failure was caused by such Party's failure to comply with
any provision of this Agreement.
TAXES
Transfer Taxes. Purchaser shall be responsible for (and shall indemnify and
hold harmless Sellers and their directors, officers, employees, Affiliates,
agents, successors and permitted assigns against) any sales, use, stamp,
documentary stamp, filing, recording, transfer or similar fees or taxes or
governmental charges (including any interest and penalty thereon) payable solely
by reason of the transactions contemplated by this Agreement ("Transfer Taxes").
To the extent that any Transfer Taxes are required to be paid by Sellers (or
such Transfer Taxes are assessed against Sellers), Purchaser shall promptly
reimburse Sellers, as applicable, for such Transfer Taxes. Sellers and Purchaser
shall cooperate and consult with each other prior to filing any Tax Returns in
respect of Transfer Taxes. Sellers and Purchaser shall cooperate and otherwise
take commercially reasonable efforts to obtain any available refunds for
Transfer Taxes. In no event shall any Party to this Agreement be responsible for
the Taxes of any other party that arises as a consequence of the transactions
consummated hereunder, except as provided above in this Section 11.1.
Purchase Price Allocation. Sellers and Purchaser shall allocate the
Purchase Price (including the Assumed Liabilities) among the Purchased Assets as
specified in Schedule 11.2 and, in accordance with such allocation, Purchaser
shall prepare and deliver to Sellers copies of Form 8594 and any required
exhibits thereto (the "Asset Acquisition Statement"). Purchaser shall prepare
and deliver to Sellers from time to time revised copies of the Asset Acquisition
Statement (the "Revised Statements") so as to report any matters on the Asset
Acquisition Statement that need updating (including purchase price adjustments,
if any) consistent with the agreed upon allocation. The Purchase Price for the
Purchased Assets shall be allocated in accordance with the Asset Acquisition
Statement or, if applicable, the last Revised Statements, provided by Purchaser
to Seller, and all income Tax Returns and reports filed by Purchaser and Sellers
shall be prepared consistently with such allocation.
Miscellaneous. Any agreement by and among the Sellers, any Selling
Affiliate, Dura or Dura's Affiliates regarding allocation or payment of Taxes or
amounts in lieu of Taxes shall be deemed terminated at and as of the Closing.
Purchaser and Sellers agree to utilize, or cause their respective Affiliates to
utilize, the alternate procedure set forth in Revenue Procedure 2004-53 with
respect to wage reporting.
MISCELLANEOUS
Expenses. Except as otherwise provided in this Agreement, Sellers and
Purchaser shall bear their own expenses, including attorney's fees, incurred in
connection with the negotiation and execution of this Agreement and each other
agreement, document and instrument contemplated by this Agreement and the
consummation of the transactions contemplated hereby
46
and thereby; it being understood that Purchaser and Seller shall share equally
the HSR Act filing fees. Notwithstanding the foregoing, in the event of any
action or proceeding to interpret or enforce this Agreement, the prevailing
party in such action or proceeding (i.e., the party who, in light of the issues
contested or determined in the action or proceeding, was more successful) shall
be entitled to have and recover from the non-prevailing party such costs and
expenses (including, without limitation, all court costs and reasonable
attorneys' fees) as the prevailing party may incur in the pursuit or defense
thereof.
Injunctive Relief. Damages at law may be an inadequate remedy for the
breach of any of the covenants, promises and agreements contained in this
Agreement, and, accordingly, any Party hereto shall be entitled to injunctive
relief with respect to any such breach, including, without limitation, specific
performance of such covenants, promises or agreements or an order enjoining a
party from any threatened, or from the continuation of any actual, breach of the
covenants, promises or agreements contained in this Agreement. The rights set
forth in this Section 12.2 shall be in addition to any other rights which a
Party may have at law or in equity pursuant to this Agreement.
Submission to Jurisdiction; Consent to Service of Process.
WITHOUT LIMITING ANY PARTY'S RIGHT TO APPEAL ANY ORDER OF THE
BANKRUPTCY COURT, (I) THE BANKRUPTCY COURT SHALL RETAIN EXCLUSIVE JURISDICTION
TO ENFORCE THE TERMS OF THIS AGREEMENT AND TO DECIDE ANY CLAIMS OR DISPUTES
WHICH MAY ARISE OR RESULT FROM, OR BE CONNECTED WITH, THIS AGREEMENT, ANY BREACH
OR DEFAULT HEREUNDER, OR THE TRANSACTIONS CONTEMPLATED HEREBY, AND (II) ANY AND
ALL PROCEEDINGS RELATED TO THE FOREGOING SHALL BE FILED AND MAINTAINED ONLY IN
THE BANKRUPTCY COURT, AND THE PARTIES HEREBY CONSENT TO AND SUBMIT TO THE
JURISDICTION AND VENUE OF THE BANKRUPTCY COURT AND SHALL RECEIVE NOTICES AT SUCH
LOCATIONS AS INDICATED IN SECTION 12.8 HEREOF; PROVIDED, HOWEVER, THAT IF THE
CHAPTER 11 CASES HAS CLOSED, THE PARTIES AGREE TO UNCONDITIONALLY AND
IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT
LOCATED IN THE STATE OF DELAWARE AND ANY APPELLATE COURT FROM ANY THEREOF, FOR
THE RESOLUTION OF ANY SUCH CLAIM OR DISPUTE. THE PARTIES HEREBY IRREVOCABLY
WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH
THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH DISPUTE
BROUGHT IN SUCH COURT OR ANY DEFENSE OF INCONVENIENT FORUM FOR THE MAINTENANCE
OF SUCH DISPUTE. EACH OF THE PARTIES HERETO AGREES THAT A JUDGMENT IN ANY SUCH
DISPUTE MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY
OTHER MANNER PROVIDED BY LAW.
EACH OF THE PARTIES HEREBY CONSENTS TO PROCESS BEING SERVED BY ANY
PARTY IN ANY SUIT, ACTION OR PROCEEDING BY DELIVERY OF A COPY THEREOF IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 12.8.
Waiver of Right to Trial by Jury. Each Party to this Agreement waives any
right to trial by jury in any action, matter or proceeding regarding this
Agreement or any provision hereof.
Entire Agreement; Amendments and Waivers. This Agreement (including the
schedules and exhibits hereto) and the Confidentiality Agreement represent the
entire understanding and agreement between the Parties with respect to the
subject matter hereof. This Agreement can be amended, supplemented or changed,
and any provision hereof can be waived, only by written instrument making
specific reference to this Agreement signed by the Party against whom
enforcement of any such amendment, supplement, modification or waiver is sought.
No action taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any Party, shall be deemed to constitute a
waiver by the Party taking such action of compliance with any representation,
warranty, covenant or agreement contained herein. The
47
waiver by any Party of a breach of any provision of this Agreement shall not
operate or be construed as a further or continuing waiver of such breach or as a
waiver of any other or subsequent breach. No failure on the part of any Party to
exercise, and no delay in exercising, any right, power or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of such
right, power or remedy by such Party preclude any other or further exercise
thereof or the exercise of any other right, power or remedy.
Parties in Interest. Nothing in this Agreement is intended to confer any
rights or remedies under or by reason of this Agreement on any Persons other
than Sellers and Purchaser and their respective successors and permitted
assigns. Nothing in this Agreement is intended to relieve or discharge the
obligations or liability of any third Persons to Sellers or Purchaser. No
provision of this Agreement shall give any third Persons any right of
subrogation or action over or against Sellers or Purchaser.
Governing Law. This Agreement shall be governed by and construed in
accordance with the Bankruptcy Code and to the extent not consistent with the
Bankruptcy Code, the laws of the State of Delaware applicable to contracts made
and performed in such State.
Notices. All notices and other communications under this Agreement shall be
in writing and shall be deemed given (i) when delivered personally by hand (with
written confirmation of receipt), (ii) when sent by facsimile (with written
confirmation of transmission) or (iii) one Business Day following the day sent
by overnight courier (with written confirmation of receipt), in each case at the
following addresses and facsimile numbers (or to such other address or facsimile
number as a party may have specified by notice given to the other party pursuant
to this provision):
If to Sellers, to:
Atwood Mobile Products, Inc.
c/o Dura Automotive Systems, Inc.
2791 Research Drive
Rochester Hills, MI 48309
Attn: David Harbert, Chief Financial Officer
Telephone: (248) 299-7500
Facsimile: (248) 299-7501
With a copy (which shall not constitute notice) to:
Kirkland & Ellis LLP
200 East Randolph Drive
Chicago, Illinois 60601-6636
Attn: Marc Keiselstein, P.C.
Michael G. Timmers, P.C.
Telephone: (312) 861-2000
Facsimile: (312) 861-2200
48
If to Purchaser, to:
Atwood Acquisition Co. LLC
c/o Hunton & Williams LLP
Energy Plaza, 30th Floor
1601 Bryan Street
Dallas, TX 75201-3402
Attn: Andrew W. Lawrence, Esq.
Telephone: (214) 979-3000
Facsimile: (214) 880-0011
With a copy to:
Hunton & Williams LLP
951 E. Byrd Street
Riverfront Plaza, East Tower
Richmond, Virginia 23219-4074
Attn: Sean P. Ducharme, Esq.
Telephone: (804) 788-8200
Facsimile: (804) 788-8218
Severability. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any law or public policy, all other
terms or provisions of this Agreement shall nevertheless remain in full force
and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
Party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the Parties shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
Parties as closely as possible in an acceptable manner in order that the
transactions contemplated hereby are consummated as originally contemplated to
the greatest extent possible.
Binding Effect; Assignment. This Agreement shall be binding upon and inure
to the benefit of the Parties and their respective successors and permitted
assigns. Nothing in this Agreement shall create or be deemed to create any third
party beneficiary rights in any Person or entity not a Party to this Agreement
except as provided below. No assignment of this Agreement or of any rights or
obligations hereunder may be made by Sellers or Purchaser (by operation of law
or otherwise) without the prior written consent of the other Parties hereto and
any attempted assignment without the required consents shall be void; provided,
however, that Purchaser may assign its rights under this Agreement to any
Affiliate of Purchaser, so long as such assignment is not part of a plan to
avoid this anti-assignment provision, and to any lender providing financing to
Purchaser for collateral security purposes. No assignment of any obligations
hereunder shall relieve the Parties hereto of any such obligations. Upon any
such permitted assignment, the references in this Agreement to Purchaser shall
also apply to any such assignee unless the context otherwise requires.
Non-Recourse. No past, present or future director, officer, employee,
incorporator, member, partner or equityholder (other than Seller) of any Seller
shall have any liability for any
49
obligations or Liabilities of Sellers under this Agreement or the Seller
Documents of or for any claim based on, in respect of, or by reason of, the
transactions contemplated hereby and thereby.
Termination of Representations and Warranties. All representations and
warranties made by Sellers and Purchaser in this Agreement shall terminate on
the Closing Date upon the purchase of the Purchased Assets by Purchaser, and
neither Sellers nor Purchaser shall have any liability after the Closing Date
for any breach of any representation or warranty.
Warranties Exclusive. The representations and warranties contained herein
are the only representations or warranties given by Sellers or being relied upon
by Purchaser, and all other express or implied warranties are disclaimed.
Without limiting the foregoing, subject to the representations and warranties
contained herein, Purchaser acknowledges that the Purchased Assets are conveyed
"AS IS," "WHERE IS" and "WITH ALL FAULTS" and that all warranties of
merchantability, usage or suitability or fitness for a particular purpose are
disclaimed. Without limiting the foregoing, Purchaser further acknowledges that
no material or information provided by or communications made by Sellers or
their agents will create any representation or warranty of any kind, whether
express or implied, with respect to the Purchased Assets and the title thereto,
the operation of the Purchased Assets, or the prospects (financial and
otherwise), risks and other incidents of the Business.
Counterparts. This Agreement may be executed in one or more counterparts,
each of which will be deemed to be an original copy of this Agreement and all of
which, when taken together, will be deemed to constitute one and the same
agreement.
Mutual Drafting. This Agreement is the result of the joint efforts of
Purchaser and Sellers, and each provision hereof has been subject to the mutual
consultation, negotiation and agreement of the parties and there is to be no
construction against either party based on any presumption of that party's
involvement in the drafting thereof.
[Signature Pages Follow]
50
IN WITNESS WHEREOF, the parties hereto have caused this Asset Purchase
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first written above.
PURCHASER
ATWOOD ACQUISITION CO. LLC
By: /s/ Ted. W. Beneski
-------------------------------------
Name: Ted W. Beneski
Title: Chairman of the Board
SELLERS
ATWOOD MOBILE PRODUCTS, INC.
By: /s/ Theresa Skotak
------------------------------------
Name: Theresa Skotak
Title: President
CREATION GROUP HOLDINGS, INC.
By: /s/ Theresa Skotak
------------------------------------
Name: Theresa Skotak
Title: President
KEMBERLY, INC.
By: /s/ Theresa Skotak
------------------------------------
Name: Theresa Skotak
Title: President
CREATION GROUP, INC.
By: /s/ Theresa Skotak
------------------------------------
Name: Theresa Skotak
Title: President
CREATION GROUP TRANSPORTATION, INC.
By: /s/ Theresa Skotak
------------------------------------
Name: Theresa Skotak
Title: President
SPEC-TEMP, INC.
By: /s/ Theresa Skotak
------------------------------------
Name: Theresa Skotak
Title: President
CREATION WINDOWS, INC.
By: /s/ Theresa Skotak
------------------------------------
Name: Theresa Skotak
Title: President