EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
THIS AGREEMENT (as it may be amended, supplemented or modified from
time to time, this "Agreement") is made as of the 19th day of March, 2002
between TST/Impreso, Inc., a Delaware corporation ("TST" or "Buyer"), and BANK
OF AMERICA, N.A. (the "Seller").
RECITALS
A. United Computer Supplies, Inc., an Illinois corporation ("UCS"), and
United Computer Supplies-East, Inc., a Delaware corporation ("UCSE"), and,
together with "UCS", the "Companies"), have engaged as part of their business in
the manufacture, sale, and distribution of paper products and business forms for
use in computers and computer related matters (the "Stock Tab Business") and
further have engaged as part of their business in the manufacture, sale and
distribution of paper rolls and related products used in cash register, gas
station pumps and similar products (the "Small Rolls Business"). UCS maintains
its principal office at 865 West Irving Park Road, Itasca, Illinois 60143. UCSE
maintains its principal office at 2600 Belt Line, Reading, Pennsylvania 19605.
B. The Companies have granted Seller: (i) a security interest in
substantially all of the property and assets of the Companies other than real
estate, and (ii) a mortgage lien on the Real Property described on Schedule
2.01(c) hereto, pursuant to: (a) the Loan and Security Agreement dated as of
July 11, 2000, as amended, among UCS, UCSE, and Seller (the "Loan Agreement"),
(b) the Mortgage, Assignment of Rents, Security Agreement and Financing
Statement dated July 11, 2000 (the "Mortgage"), and (c) other miscellaneous
related documents and agreements entered into in connection with all of the
foregoing, including Uniform Commercial Code ("UCC") financing statements and
documentation filed with the intent to perfect Seller's security interest in the
Collateral (all of the foregoing are referred to collectively as the "Loan
Documents"). John R. Zimmerman ("Zimmerman") has supported, pursuant to a
limited unconditional guaranty and a third party pledge of a fixed amount of
cash collateral (and the earnings thereon), a portion of the liabilities owing
by the Companies under the Loan Documents.
C. The Companies are in default under the various terms and conditions
of the Loan Documents.
D. Seller has undertaken to effect the sale pursuant to Section
9-610 of the UCC as enacted in the States of Illinois and Pennsylvania (to the
extent that the Pennsylvania UCC is relevant) of certain of the assets of the
Stock Tab and Small Rolls Businesses of the Companies expeditiously in order to
avoid or minimize the loss of value to which such assets may be subject due to
the passage of time.
E. Buyer desires to purchase, Seller desires to sell pursuant to
Section 9-610 of the UCC as enacted in the States of Illinois and Pennsylvania
(to the extent that
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Pennsylvania UCC is relevant), and the Companies and Zimmerman, as evidenced by
their execution and delivery of Consents and Acknowledgments attached at the
foot of this Agreement, have consented to the sale to Buyer pursuant to Article
9-610 of the UCC as amended in the States of Illinois and Pennsylvania (to the
extent that the UCC of Pennsylvania is relevant) of, certain of the assets of
the Stock Tab and Small Rolls Businesses of the Companies on the terms and
conditions set forth in this Agreement.
F. Neither Buyer nor Seller intends, in entering into this Agreement
and carrying out the transactions contemplated by this Agreement, to assume or
become liable for any obligation, liability or indebtedness of the Companies or
of one another.
NOW, THEREFORE, in consideration of the foregoing, the representations,
warranties and covenants contained in this Agreement and for other good and
valuable consideration, the receipt and sufficiency of which is acknowledged,
and intending to be legally bound, the parties hereby agree as follows:
ARTICLE 1
DEFINITIONS
For all purposes of this Agreement, the terms set forth below shall be
defined as follows:
"Agreement" has the meaning given that term in the Preamble.
"Arbiter" has the meaning given that term in Section 2.04(b).
"Buyer" has the meaning given that term in Preamble.
"Closing" means the closing of the transactions contemplated by this
Agreement.
"Closing Date" has the meaning given that term in Section 5.01.
"Code" means the Internal Revenue Code of 1986, as amended.
"Companies" means UCS or UCSE any of them; "Company" means one of the
Companies.
"Effective Time" has the meaning given to such term in Section 5.01.
"Eligible Finished Goods Inventory" means all carbonless coated paper,
work in process, and finished goods inventory on which manufacturing processes
were commenced within 210 days of the Inventory Count Date that is not damaged
or obsolete and all other finished goods inventory that can be sold in the
ordinary course of business.
"Eligible Inventory" means all Eligible Finished Goods Inventory and
all Eligible Raw Materials Inventory.
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"Eligible Raw Materials Inventory" means all uncoated paper inventory
purchased within 210 days of the Inventory Count Date that is not damaged or
obsolete and all other raw materials (other than carbonless interleaf stock and
carbon leaf material, but including cores, cartons, pallets, and opas materials)
that can be used in the ordinary course of business.
"Equipment" has the meaning given that term in Section 2.01.
"Excluded Assets" has the meaning given that term in Section 2.01.
"Final Warehouse Inventory Amount" shall have the meaning set forth in
Section 2.04(b).
"Governmental Entity" means any court, governmental authority or other
regulatory or administrative agency or commission, domestic or foreign.
"Intellectual Property" means: (i) all inventions (whether patentable
or not patentable and whether or not reduced to practice) and all improvements
thereto, (ii) all patents, patent applications, and patent disclosures, together
with all reissuances, divisions, continuations, continuations-in-part,
revisions, renewals, extensions and reexaminations thereof, (iii) all registered
and unregistered trademarks, service marks, trade dress, logos, trade names,
slogans and corporate names, together with all translations, adaptations,
derivations, and combinations thereof and including all goodwill associated
therewith, and all applications, registrations and renewals in connection
therewith, (iv) all works of authorship, including, without limitation, all
copyrightable works, all copyrights, all mask works and all applications,
registrations and renewals in connection with any of the foregoing, and all
moral rights, (v) all databases, data compilations and data collections, (vi)
all trade secrets and confidential information (including without limitation,
ideas, research and development, know-how, processes, methods, techniques,
technical data, designs, drawings, specifications, customer and supplier lists,
pricing and cost information, and business, technical and marketing plans and
proposals), (vii) all domain names, web addresses, websites (and the content and
information contained on all such websites), telephone numbers and fax numbers,
(viii) all Software, (ix) all artwork, negatives, films, printing plates and
other similar items, (x) all other intellectual property and proprietary rights,
and (xi) all copies and tangible embodiments of all of the foregoing items (i)
through (x) in any form or medium.
"Inventory Count Date" shall have the meaning set forth in Section 2.04
hereof.
"Law" means any law, statute, ordinance, rule, regulation, code, order,
judgment or decree or other restriction of any Governmental Entity.
"Lien" means any mortgage, pledge, charge, security interest, claim or
other encumbrance of any nature upon, or conditional assignment of, any property
or assets.
"Loan Documents" has the meaning given that term in Recitals.
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"Preliminary Warehouse Inventory Amount" shall have the meaning set
forth in Section 2.04(a).
"Purchase Price" has the meaning given that term in Section 2.02.
"Purchased Assets" has the meaning given that term in Section 2.01.
"Real Property" means the Real Property described on Schedule 2.01(c).
"Seller" has the meaning given that term in the Preamble.
"Small Rolls Business" has the meaning given that term in the Recitals.
"Software" means computer software, source code and object code,
whether embodies in software, firmware or otherwise (including, without
limitation, algorithms, methodologies, related data and documentation).
"Stock Tab Business" has the meaning given that term in Recitals.
"Tax" means any foreign, federal, state or local income, gross
receipts, license, severance, occupation, premium, environmental (including
taxes under Section 59A of the Code), customs, duties, profits, disability,
registration, alternative or add-on minimum, estimated, withholding, payroll,
employment, unemployment insurance, social security (or similar), excise, sales,
use, value-added, occupancy, franchise, real property, personal property,
business and occupation, mercantile, windfall profits, capital stock, stamp,
transfer, workman's compensation or other tax, fee or imposition of any kind
whatsoever, including any interest, penalties, additions, assessments or
deferred liability with respect thereto, whether disputed or not.
"Tax Return" means any return, report, deduction, claim for refund,
estimate, election or information statement or bill relating to any Tax,
including any schedule or attachment thereto and any amendment thereof.
"UCC" has the meaning given that term in Recitals.
"UCS" has the meaning given that term in Recitals.
"UCSE" has the meaning given that term in Recitals.
"Warehouse Inventory Retained Amount" has the meaning given that term
in Section 2.02.
"Warranty" means all claims and rights against third parties, if and to
the extent the same relate to or arise under the Purchased Assets, including,
without limitation, all rights under manufacturer and vendor warranties, service
life policies, customer support arrangements and similar items, and all rights
of recovery, setoffs and credits.
"Zimmerman" has the meaning given that term in Recitals.
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"Zimmerman Cash Collateral Agreement" has the meaning given that term
in the definition "Zimmerman Support Agreements".
"Zimmerman Guaranty" has the meaning given the term in the definition
"Zimmerman Support Agreements".
"Zimmerman Support Agreements" means that certain Guaranty dated July
11, 2000 executed by Zimmerman in favor of Seller (as the same may be amended,
supplemented or modified from time to time, the "Zimmerman Guaranty"), that
certain Cash Collateral Pledge Agreement, dated as of December 7, 2001, among
Zimmerman, Seller as secured party, and Seller as depository bank (as the same
may be amended, supplemented or modified from time to time, the "Zimmerman Cash
Collateral Agreement"), and any and all agreements, instruments, or other
documents relating to the Zimmerman Guaranty or the Zimmerman Cash Collateral
Agreement.
ARTICLE 2
PURCHASE AND SALE OF ASSETS
2.01 Purchase and Sale of the Purchased Assets; Excluded Assets.
Subject to the terms and conditions of this Agreement, at the Closing (which is
being held concurrently with the execution of this Agreement by the parties, as
provided in Article 6), Seller shall sell, assign, convey and transfer to Buyer,
and Buyer shall purchase from Seller, all of the right, title and interest of
the Companies in the following assets, properties and rights pursuant to Section
9-610 of the UCC as in effect in the applicable jurisdictions (the "Purchased
Assets"):
(a) all of the Companies' computers, furniture, furnishings,
fixtures, other fixed assets, supplies and other tangible personal property
(including inventories of raw materials, works-in-progress and finished goods)
as of the Closing Date, and any and all machinery, equipment, tools and spare
parts, including, without limitation, those listed on Schedule 2.01(a)(i), other
than the items set forth on Schedule 2.01(a)(ii) (collectively, the "Equipment")
that relate to or are used in the Stock Tab and Small Rolls Businesses;
(b) all of the Companies' Intellectual Property (other than the
rights of the Companies under trademark and copyright licenses with respect to
which any of the Companies are the licensee) as of the Closing Date that relates
to or is used in the Stock Tab and Small Rolls Businesses, including, without
limitation, the Intellectual Property described on Schedule 2.01(b);
(c) all of the rights of the Companies as of the Closing Date in, to
and under any federal, state, local and other governmental licenses, permits,
approvals and authorizations that relate to or are necessary to conduct the
Stock Tab or Small Rolls Businesses or to own and operate the Purchased Assets;
in each case to the extent assignable (collectively, the "Permits");
(d) subject to the right of access Buyer agrees to afford the
Companies and Zimmerman in Section 8.02 hereof, all customer service lists,
customer communications,
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customer forecasts and all other customer information, all sales and product
literature, all warranty and other claims information, all documents, books,
drawings, logs, manuals and records relating to the other Purchased Assets, all
employee records and all other information and records used in the operation of
the Stock Tab and Small Roll Businesses, all as of the Closing Date, but
excluding financial statements, tax returns and minutes and other similar
official corporate records (copies of all of which shall be made available to
Buyer before and after the Closing upon reasonable request); and
(e) all Warranties as of the Closing Date with respect to the other
Purchased Assets, if any, to the extent assignable (or to the extent not
assignable, subrogation rights with respect to such Warranties).
Notwithstanding the foregoing, the Purchased Assets shall not include any of the
following (collectively, the "Excluded Assets"): (i) any of the Companies'
accounts or notes receivable, (ii) any of the Companies' cash on hand or in bank
accounts, (iii) the Real Property and (iv) the equipment of the Companies not
listed on Schedule 2.01(a)(i) hereto, including the equipment that is listed on
schedule Schedule 2.01(a)(ii). With respect to the Excluded Assets consisting of
the Senntech shredder and the RG Engineering Coater, Seller acknowledges that it
does not have the first lien on such equipment, but expressly reserves its
rights with respect to any proceeds from the disposition of such equipment in
excess of the amount owned to the first lienholder thereon.
2.02 Purchase Price. The purchase price (the "Purchase Price") for the
purchase and sale of the Purchased Assets shall be $2,907,346 (subject to the
adjustments and prorations provided for in Sections 2.04 and 2.05). The Purchase
Price (less $50,000 (the "Warehouse Inventory Retained Amount")) shall be paid
by Buyer (or as directed by Seller) at the Closing by wire transfer of
immediately available funds to the account or accounts specified by Seller in a
written notice given to Buyer prior to the Closing.
2.03 No Assumption of Obligations. AS PART OF THIS AGREEMENT, NEITHER
SELLER NOR BUYER IS ASSUMING AND NEITHER SHALL BE LIABLE FOR ANY DEBT,
OBLIGATION, RESPONSIBILITY OR LIABILITY OF THE COMPANIES OR OF ONE ANOTHER,
WHETHER KNOWN OR UNKNOWN, CONTINGENT OR ABSOLUTE OR OTHERWISE.
2.04 Inventory Adjustment to Purchase Price.
(a) After the close of business on the business day immediately
prior to the Closing Date (the "Inventory Count Date"), Seller and Buyer (with
the assistance of their consultants and the participation of the Companies and
their consultants if desired) conducted a physical count of all inventory at the
Elk Grove/Itasca, Illinois and Reading, Pennsylvania locations and further
reviewed the Companies' books and records regarding inventory maintained at
warehouse locations and agreed upon the value of Eligible Inventory and thus, on
the determination of the component of the Purchase Price relating to the
inventory, which is $2,461,321.00, with the portion thereof relating to the
inventory at the warehouse locations being $142,684.50 (the "Preliminary
Warehouse
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Inventory Amount"). In calculating such component, all Eligible Raw Materials
Inventory was valued at seventy-five percent (75%) of the lower of cost or fair
market value, and all Eligible Finished Goods Inventory was valued at
seventy-five percent (75%) of the Companies' booked cost. All such amounts under
this Section 2.04(a) were determined in accordance with GAAP.
(b) At Closing, Buyer shall retain the Warehouse Inventory Retained
Amount for ultimate retention or distribution as provided in this Section
2.04(b). Seller and Buyer (with the assistance of their consultants and the
participation of the Companies and their consultants, if desired) shall conduct
a physical count of all inventory located at the warehouse locations on March
18, 2002, with such actual physical count to be concluded at all warehouses by
the Closing. If Seller and Buyer agree upon the value of the Eligible Inventory
at those locations, such agreement shall constitute the "Final Warehouse
Inventory Amount". If the parties cannot so agree, the parties shall agree upon
one of the accounting firms commonly known as the "Big Five" or some other
person or entity mutually acceptable to Seller and Buyer to resolve any such
disputes between the parties as to such value (the "Arbiter"), and the Arbiter
will be required to render such decision within thirty (30) days of the
Arbiter's retention. In such an instance, the value as so resolved by the
Arbiter shall be binding on the parties, absent manifest error, and shall
constitute the "Final Warehouse Inventory Amount". In order to permit the Final
Warehouse Inventory Amount to be determined, no inventory shall be moved from
any warehouse location for a period of at least ten days after the Closing Date.
The fees, costs, and expenses of the Arbiter shall be borne equally by Buyer and
Seller. In calculating such value, the parties (and if necessary, the Arbiter)
shall use the same method of calculation used in determining the Preliminary
Warehouse Inventory Amount (i.e., all Eligible Raw Materials Inventory will be
valued at seventy-five percent (75%) of the lesser of cost or fair market value,
and the Eligible Finished Goods Inventory will be valued at seventy-five percent
(75%) of the Companies' booked cost), and all such amounts shall be determined
in accordance with GAAP. If the final Warehouse Inventory Amount exceeds the
Preliminary Warehouse Inventory Amount, the Buyer shall pay the Seller within
five business days of such determination such difference as a purchase price
adjustment, and further shall pay the Seller the entire amount of the Warehouse
Inventory Retained Amount, in immediately available funds, and if the
Preliminary Warehouse Inventory Amount exceeds the Final Warehouse Inventory
Amount, Buyer shall be entitled to retain the Warehouse Inventory Retained
Amount equal to such amount as a purchase price adjustment and shall pay the
balance thereof (if any) to Seller within five days of such determination in
immediately available funds. Notwithstanding any other provision of this
Agreement to the contrary, Buyer's recourse in such instance shall be solely and
exclusively to the Warehouse Inventory Retained Amount, and Seller shall have no
affirmative liability to Buyer in the event that the difference believes the
Preliminary Warehouse Inventory Amount and the Final Warehouse Inventory Amount
exceeds $50,000.
2.05 Non-Tax Prorations. Charges and recurring payments which include
amounts for which both Buyer and Seller are responsible shall be prorated
between them as of the Effective Time on a per diem basis in accordance with the
method for
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apportionment described in Section 164(d)(1) of the Code and Treasury
regulations promulgated thereunder (with net amounts prorated to the Companies
constituting a credit against the Purchase Price). All payments to be made or
credited by Buyer or Seller in accordance with this Section 2.05 shall be made,
to the extent then determinable, as an adjustment to the Purchase Price payable
at the Closing or, to the extent not then determinable, promptly following the
determination thereof.
2.06 No Waiver of Remaining Company or Zimmerman Liability or of
Security Interests. Notwithstanding any other provision of this Agreement to the
contrary, Seller, in no manner whatsoever, waives any (but instead expressly
reserves any and all) of its claims, rights, powers and remedies against the
Companies (individually or collectively), Zimmerman, or any of their respective
property (including, without limitation, any of the Excluded Assets or any
collateral pledged by Zimmerman), except solely that, in the event that the
transactions contemplated hereby are consummated, (1) Seller shall provisionally
credit an amount equal to the Purchase Price against the amounts owing under the
Loan Documents in any manner Seller so determines within the provisions of the
Loan Documents and (2) the transfer of the Purchased Assets to Buyer pursuant to
the provisions of this Agreement will result in the Purchased Assets being free
of any security interest or other Lien asserted by Seller therein. Specifically,
but without limiting the generality of the foregoing, Seller's security
interests and Liens in, to, and on any and all of the Excluded Assets (or any
property pledged by Zimmerman) shall remain unaffected upon and by the
consummation of the transactions contemplated hereby, and no portion of the
Purchase Price other than solely that portion (if any) expressly attributable to
the Equipment shall be required to be applied in the first instance against the
equipment term loan owing under the Loan Documents.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as of the date of this
Agreement as follows:
3.01 Purchased Assets. Seller sent notice of the private foreclosure
sale contemplated by this Agreement to the persons and entities set forth on
Schedule 3.01-A hereto, by depositing the same in the U.S. Mail, First Class
postage prepaid, or by hand delivery, on or before March 19, 2002. Seller has
not released or subordinated or otherwise transferred to any other person or
entity any of its security interests or Liens in and to the Purchased Assets
existing as of the Closing Date (including, without limitation, any of the UCC
financing statements listed on Schedule 3.01-B hereto). Except as expressly and
explicitly provided in this Article 3, Seller makes no representation or
warranty in favor of Buyer or any of its successors and assigns. Consistent
with, but not in limitation of, the foregoing, Seller makes no representation or
warranty as to title in and to or the completeness or existence of the Purchased
Assets, except that Seller represents and warrants to Buyer that the transfer of
the Purchased Assets to Buyer pursuant to this Agreement will result in the
Purchased Assets being free of any security interests or other Liens asserted by
Seller.
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3.02 Authority; Authorization; Enforceability. Seller has the requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby,
have been duly authorized and approved by all necessary corporate action on the
part of Seller.
3.03 Certain Fees and Obligations. Seller is not obligated to pay any
fee or commission to any broker, finder or intermediary in connection with the
transactions contemplated by this Agreement.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as of the date of this
Agreement as follows:
4.01 Corporate Organization. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and is duly qualified to do business and is in good standing as a foreign
corporation in the States of Texas, California, West Virginia, Illinois, and
Pennsylvania. Buyer has the requisite corporate power and authority to own,
lease and operate its properties and assets and to carry on its business as it
is now being conducted.
4.02 Authority; Authorization; Enforceability. Buyer has the requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby has
been duly authorized and approved by all necessary corporate action on the part
of Buyer. This Agreement has been duly executed and delivered by, and
constitutes a valid and binding obligation of, Buyer, enforceable against Buyer
in accordance with its terms.
4.03 Certain Fees and Obligations. Buyer is not obligated to pay any
fee or commission to any broker, finder or intermediary in connection with the
transactions contemplated by this Agreement.
ARTICLE 5
CLOSING
5.01 The Closing. The Closing shall take place at the offices of Mayer,
Brown, Rowe & Maw, 190 South LaSalle Street, Chicago, Illinois concurrently with
the execution of this Agreement by Buyer and Seller (the date of the Closing
being referred to herein as the "Closing Date"). In lieu of an in-person
Closing, the parties may elect to close by facsimile transaction of executed
documents, wire transfer of the Purchase Price, and overnight delivery scheduled
for the following day of executed original documents. At the Closing, the
actions described in this Article 5 shall be taken. All actions shall be deemed
to have occurred simultaneously and as of the closing of business on the Closing
Date (the "Effective Time"), and the effectiveness of any action taken at the
Closing
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shall, unless otherwise agreed to by Buyer and Seller, be conditioned upon the
taking of all other action required by this Article 5.
5.02 Deliveries by Seller. At the Closing, Seller shall deliver the
following to Buyer:
(a) A general bill of sale and assignment in the form attached
hereto as Exhibit A executed by Seller.
(b) Assignment in the form attached hereto as Exhibit B executed by
Seller assigning to Buyer the Intellectual Property, if any, including patents,
trademarks and associated goodwill.
(c) A certificate duly executed by a duly authorized officer of
Seller and dated the Closing Date stating that the representations and
warranties of Seller set forth in Article 3 are accurate and correct in all
material respects.
(d) Such other certificates, documents and instruments as Buyer
reasonably may request in connection with the transaction contemplated by this
Agreement.
5.03 Deliveries by Buyer. At the Closing, Buyer shall deliver (or cause
to be delivered) the following to seller:
(a) The Purchase Price, payable as provided in Section 2.02 hereto.
(b) A certificate signed by a duly authorized officer of Buyer and
dated the Closing Date stating that the representations and warranties of Buyer
set forth in Article 4 are accurate and correct in all material aspects.
(c) Such other certificates, documents and instruments as Seller
reasonably may require in connection with the transactions contemplated by this
Agreement.
5.04 Mutual Deliveries. At the Closing, Buyer and Seller shall deliver
the following:
(a) Originals of this Agreement executed by Buyer and Seller.
(b) An Accounts Receivable Assistance Agreement in the form attached
hereto as Exhibit C executed by Buyer and Seller.
5.05 Real Property. If Buyer and the Companies agree to the sale of the
Real Property by the Companies to Buyer, the closing of such sale occurs
contemporaneously with the Closing, and such sale shall result in net sale
proceeds payable directly to Seller in an amount not less than $3,875,000,
Seller hereby agrees to release its mortgage on the Real Property upon and in
return for the Seller's receipt of all of such net sale proceeds (up to the
balance of all remaining amounts, including accrual and unpaid interest and
professional fees and expenses, owing by the Companies under the Loan
Documents). In such amount, Seller shall have a right to maintain its remaining
physical collateral at said
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property, rent free, for a period of sixty (60) days after closing. If Buyer is
still attempting to arrange for such a purchase of the Real Property, but the
terms and conditions of such purchase have not been finalized or such purchase
is not otherwise going to occur contemporaneously with the Closing, Buyer and
the Companies will attempt to negotiate a short-term lease of the Real Property
not to exceed 60 days for a fair market rent (with such rent being paid directly
to Seller), and Seller will undertake not to foreclose its mortgage on the Real
Property for a period ending on the earlier of (i) the termination date of any
such lease and (ii) the sixtieth (60th) day of the Closing. Except for the
forbearance set forth in the preceding sentence, Seller shall be deemed in no
manner to have limited its rights, powers, and/or remedies, whether under its
mortgage and/or applicable law, in to, and against the Real Property.
ARTICLE 6
ADDITIONAL COVENANTS
6.01 UCC terminations. Within 30 days of Closing, Seller shall provide
Buyer either with copies of all filed UCC-3 partial release or termination
statements which reflect the release by Seller of its security interest in the
Purchased Assets suitable for filing in each filing office in which financing
statements are on file covering any of the Purchased Assets and naming Seller as
Secured Party and any of the Companies as debtor or with an agreement
authorizing Buyer to prepare and so file such termination statements.
6.02 Further Assurances. From time to time following the Closing, and
for a period of 120 days after the Closing Date, Seller, without in any manner
being required to expand to any extent or otherwise alter to its detriment its
obligations hereunder, shall execute, acknowledge and deliver such additional
documents, instruments or conveyance, transfer and assignment or assurances and
take such other action as Buyer reasonably may request in order to more
effectively assign, convey and transfer to Buyer and fully vest (to the extent
possible) title to the Purchased Assets in Buyer in accordance with this
Agreement.
6.03 Publicity. The parties shall consult with each other and shall
mutually agree (the agreement of each party not to be unreasonably withheld or
delayed) upon the consent and timing of any press release or other public
statements with respect to the transactions contemplated by this Agreement and
shall not issue any such press release or make any such public statement prior
to such consultation and agreement, except as may be required by applicable law
or by the rules of any stock exchange; provided, however, that each party shall
give prior notice to the other parties of the content and timing of any such
press release or other public statement required by applicable law or by the
rules of any stock exchange.
6.04 Limited License. Buyer hereby grants to Seller a non-exclusive
license, for a period of four months following the Closing, to the trademarks
and tradenames included in the Intellectual Property solely for the purpose of
disposing of any of the Excluded Assets which, as of the Closing Date, bears
such trademarks or tradenames. Seller shall not be obligated to pay any
royalties or other fees for such license.
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6.05 Receipt of Payments. If at any time after the Effective Time Buyer
receives any payment with respect to any accounts receivable included in the
Excluded Assets, Buyer promptly shall deliver such payment to Seller in
accordance with the Accounts Receivable Assistance Agreement attached and marked
Exhibit C. If at any time after the Closing Seller or any of the Companies
receives any payment with respect to any of the Purchased Assets of Buyer which
arise after the Closing Date, Seller shall promptly deliver such payment to
Buyer.
ARTICLE 7
INDEMNIFICATION
7.01 Survival. The representations, warranties, covenants and
agreements of the parties set forth in this Agreement and in any agreement or
certificate delivered pursuant hereto shall survive the Closing and any
investigation made by any party to this Agreement.
7.02 Indemnification by Seller. From and after the Effective Time,
Seller shall indemnify, defend and hold Buyer and each of its affiliates,
directors, officers and employees harmless from and against all claims,
liabilities, losses, damages, expenses, costs of settlement and demands of any
character whatsoever (including, without limitation, reasonable attorneys' fees)
imposed upon or incurred by any of them which arise out of: (i) any
misrepresentation or inaccuracy of a representation or warranty made by Seller
in Article 3 of this Agreement, (ii) any nonfulfillment of a covenant or any
other agreement on the part of Seller set forth in this Agreement, and (iii) all
actions, suits, proceedings and judgments incident to any of the foregoing.
7.03 Indemnification by Buyer. From and after the Effective Time, Buyer
shall indemnify, defend and hold Seller and each of its affiliates, directors,
officers and employees harmless from and against all claims, liabilities,
losses, damages, expenses, costs of settlement and demands of any character
whatsoever (including, without limitation, reasonable attorneys' fees) imposed
upon or incurred by any of them which arise out of : (i) any misrepresentation
or inaccuracy of a representation or warranty made by Buyer in Article 4 of this
Agreement, (ii) any nonfulfillment of a covenant or any other agreement on the
part of Buyer set forth in this Agreement, and (iii) all actions, suits,
proceedings and judgments incident to any of the foregoing.
ARTICLE 8
TAX MATTERS
8.01 Purchase Price Allocation. Buyer shall, within 120 days after the
Closing Date, prepare and deliver to Seller for its consent (which consent shall
not be unreasonably withheld) a schedule allocating the Purchase Price among the
Purchased Assets in accordance with Treasury Regulation 1.1060-1T (or any
comparable provisions of state or local tax law) or any successor provision. If
Seller objects in writing to the allocation set forth on such schedule within 10
days after Buyer delivers the schedule to Seller, Buyer and Seller shall
negotiate in good faith to resolve such objections. Buyer and Seller shall
report and file all tax returns (including amended Tax Returns and clams
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for refunds) consistent with the allocation set forth on such scheduled (as
modified by any agreement of Buyer and Seller), and shall take no position
contrary thereto or inconsistent therewith (including, without limitation, in
any audits or examinations by any taxing authority or any other proceedings).
Buyer and Seller shall cooperate in the filing of any forms (including Form
8594) with respect to such allocation, including any amendments to such forms
required with respect to any adjustment to the Purchase Price pursuant to this
Agreement.
8.02 Filing Tax Returns; Cooperation. Seller and Buyer (and Buyer in
respect to the Companies and Zimmerman) reasonably shall cooperate, and shall
cause their respective affiliates, officers, employees, agents, auditors and
representatives reasonably to cooperate, in preparing and filing Tax Returns
(including amended Tax Returns and claims for refund) including, without
limitation, the issuance of a power of attorney, if necessary and maintaining
and making available to each other all records necessary in connection with
Taxes and in resolving all disputes and audits with respect to all taxable
periods relating to Taxes. Consistent with, but not in limitation of, the
foregoing, Buyer shall retain all financial records and other information for a
period of four years after the Closing Date and shall afford Seller (at its
option) and the Companies and Zimmerman access to (and permit any copying of)
such records and similar information so that they can prepare any required tax
refunds or respond to any questions relating to any tax returns or address any
other matters relating to any tax returns or similar financial or tax matters.
8.03 Adjustments to the Purchase Price. All payments made by Seller or
Buyer under this Agreement shall be treated as adjustments to the Purchase
Price.
ARTICLE 9
MISCELLANEOUS
9.01 Waiver. Either Buyer on the one hand, or Seller on the other, may,
by written notice to the other: (a) extend the time for performance of any of
the obligations or other actions of such other party under this Agreement, (b)
waive any inaccuracies in the representations or warranties of such other party
contained in this Agreement or in any document delivered pursuant to this
Agreement, (c) waive compliance with any of the conditions or covenants of such
other party contained in this Agreement, or (d) waive or modify performance of
any of the obligations of such other party under this Agreement. Except as
provided in the preceding sentence, no action taken pursuant to this Agreement,
including, without limitation, any investigation by or on behalf of either party
shall be deemed to constitute a waiver by the party taking such action of
compliance with any of the representations, warranties, covenants, conditions,
or agreements contained in this Agreement. The waiver by any party hereto of a
breach of this Agreement shall not operate or be construed as a waiver of any
subsequent breach.
9.02 Entire Agreement; Amendment. This Agreement, including the
exhibits and schedules and the documents referred to herein (which exhibits,
schedules and documents are incorporated herein by this reference), shall
constitute the complete and entire agreement between the parties hereto with
respect to the subject matter hereof and shall
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supersede all previous oral and written negotiations and commitments and any
other writings with respect to such subject matter. This Agreement can be
modified or amended only by a writing duly executed by Buyer and Seller.
9.03 Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Illinois, as applicable to agreements
executed and entirely performed in such state.
9.04 Interpretation. The headings contained in this Agreement are for
convenience of referenced only and shall in no way affect the meaning or
interpretation of this Agreement. Unless the context of this Agreement expressly
otherwise indicates, any singular term in this Agreement will include the
plural, and any plural term will include the singular. The language used in this
Agreement shall be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of strict construction shall be applied
against either party.
9.05 Notices. All notices, requests, demands and other communications
pursuant to this Agreement shall be in writing, shall be deemed to have been
effectively given: (i) when delivered personally,(ii) when transmitted by
facsimile transmission, if the sending facsimile machine receives and prints a
confirmation of receipt by the receiving facsimile machine, (iii) three business
days after deposit in the United States mail, a registered or certified and with
proper postage prepaid, or (iv) the next business day, if sent by a recognized
commercial carrier (unless the records of the delivery service indicates
otherwise), addressed as follows:
If to Buyer:
TST/Impreso, Inc.
652 Southwestern Blvd
Coppell, Texas 75019
Attn: Marshall Sorokwasz, President
Tammy Yahiel, General Counsel
Fax: (972) 462-0100
If to Seller:
Bank of America, N.A.
231 South LaSalle Street, Eighth Floor
Chicago, Illinois 60697
Attn: Ronald Prince
Thomas E. Czerwinski
Fax: (312) 987-0234
With a required copy to:
Thomas S. Kiriakos, Esq.
Mayer, Brown, Platt
190 South LaSalle Street
Chicago, Illinois 60603
Fax: (312) 701-7711
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If to the Companies or Zimmerman:
c/o Mr. Jack Zimmerman
88 Meadowhill Road
Barrington Hills, Illinois 60010
With a required copy to:
James E. Dahl, Esq.
James E. Dahl & Associates
225 West Washington Street
Suite 1125
Chicago, Illinois 60606
Any party or other recipient may from time to time change its address and
facsimile number for purposes of this Agreement by giving notice of such change
as provided herein.
9.06 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed to be an original but all of which
together will constitute but one agreement.
9.07 Parties in Interest; Assignment. This Agreement shall be binding
upon and inure solely to the benefit of the parties hereto and their respective
successors and permitted assigns, but shall not be assignable or delegable by
any party without the prior written consent of the other party; provided,
however, that upon notice to Seller, Buyer may assign or delegate any or all of
its rights or obligations under this Agreement to any affiliate of Buyer or to
any person which directly or indirectly acquires, after the Closing, all or
substantially all of the assets of Buyer's consumer and office products
division, but such assignment or delegation shall not relieve Buyer of any
obligation hereunder.
9.08 No Third Party Beneficiaries. Except solely for the access and
cooperation to be extended by Buyer to the Companies and Zimmerman as set forth
in Section 8.02 hereof, this Agreement is for the sole benefit of the parties
hereto and their permitted assigns, and nothing herein expressed or implied
shall give or be construed to give to any person, other than the parties hereto
and their successors and permitted assigns, any legal or equitable rights
hereunder.
9.09 Severability. If any provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law or public policy, all
other terms and provisions of this Agreement will nevertheless remain in full
force and effect so long as, and only so long as, the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party hereto. Upon any
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determination that any provision is invalid, illegal or incapable of being
enforced and does not adversely affect the substance of these transactions in a
material way, the parties hereto will negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in any acceptable manner to the end that the transactions contemplated
by this Agreement are consummated to the fullest extent possible.
9.10 Interpretation. The use of the masculine, feminine or neuter
gender or the singular or plural form of words herein shall not limit any
provision of this Agreement. The use of the terms "including" or "include" shall
in all cases herein mean "including, without limitation" or "include, without
limitation," respectively. Reference to any person or entity includes such
person's or entity's successors and assigns to the extent such successors and
assigns are permitted by the terms of this Agreement, and reference to a person
or entity in a particular capacity excludes such person or entity in any other
capacity or individually. Reference to any agreement (including this Agreement),
document or instrument means such agreement, document or instrument as amended
or modified and in effect from time to time in accordance with the terms thereof
and, if applicable, the terms hereof. Reference to any law means such law as
amended, modified, codified, replaced or re-enacted, in whole or in part, and in
effect on the date hereof, including rules, regulations, enforcement procedures
and any interpretations promulgated thereunder. Underscored references to
Sections, clauses, Exhibits or Schedules shall refer to those portions of this
Agreement, and any underscored references to a clause shall, unless otherwise
identified, refer to the appropriate clause within the same Section in which
such reference occurs. The use of the terms "hereunder", "hereof", "hereto" and
words of similar import shall refer to this Agreement as a whole and not to any
particular Section or clause of or Exhibit or Schedule to this Agreement. The
Schedules and Exhibits attached hereto are a part of this Agreement and, as
such, are subject to the terms and conditions thereto, including, without
limitation, the disclaimer of any representation or warranty set forth in
Section 3.01 hereof. All terms defined in this Agreement shall have the
above-defined meanings when used in any certificate, report or other document
made or delivered pursuant to this Agreement, unless the context therein shall
clearly otherwise require. In the computation of periods of time in this
Agreement from a specified date to a later specified date, the word "from" means
"from and including" and the words "to" and "until" each means "to, but not
through". This Agreement and the other documents relating to this Agreement are
the result of negotiations among and have been reviewed by counsel to the Buyer
and the Seller, and are the products of all parties. Accordingly, they shall not
be construed against any party merely because of such party's involvement in
their preparation.
9.11 Waiver of Jury Trial. BUYER AND SELLER HEREBY AGREE TO WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT. The scope of this waiver is intended to be
all-encompassing of any and all disputes that may be filed in any court and that
relate to the subject matter of this transaction, including, without limitation,
contract claims, tort claims, breach of duty claims, and all other common law
and statutory claims. Seller and Buyer warrant and
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represent that each has reviewed this waiver with its legal counsel, and that
each knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
In the event of litigation, this Agreement may be filed as a written consent to
a trial by the court.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement as
of the day and year first written above.
"Buyer"
TST/Impreso, Inc.
By: /s/ Marshall Sorokwasz
-----------------------------------
Marshall D. Sorokwasz
President
"Seller"
BANK OF AMERICA, N.A.
By: /s/ Thomas Czerwinski
----------------------------------
Name: Thomas Czerwinksi
Title: Vice President
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