Exhibit 10.15
CONFIDENTIAL
ASSET SALE AGREEMENT
BETWEEN
BINNINGS ACQUISITION CORP.
AND
AMERICAN ARCHITECTURAL PRODUCTS CORPORATION
AND
BINNINGS BUILDING PRODUCTS, INC.
DATED AS OF
DECEMBER 19, 2001
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS............................................... 2
1.1 Definitions............................................... 2
ARTICLE 2 SALE AND PURCHASE OF THE ASSETS........................... 2
2.1 Transferred Assets........................................ 2
2.2 Excluded Assets........................................... 3
2.3 Assumption of Liabilities................................. 5
2.4 Excluded Liabilities...................................... 5
ARTICLE 3 THE CLOSING............................................... 6
3.1 Place and Date............................................ 6
3.2 Purchase Price............................................ 6
3.3 Allocation of Purchase Price.............................. 6
3.4 Deliveries................................................ 7
3.5 Consents of Third Parties................................. 7
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF SELLER.................. 7
4.1 Organization, Standing, Etc. of Seller.................... 7
4.2 Corporate Authorization................................... 8
4.3 Enforceability............................................ 8
4.4 Governmental Authorizations and Consents.................. 8
4.5 Financial Statements...................................... 8
4.6 Absence of Certain Changes or Events...................... 8
4.7 Title to Transferred Assets............................... 9
4.8 Transferred Intellectual Property......................... 9
4.9 Assumed Contracts......................................... 9
4.10 Licenses and Permits...................................... 10
4.11 Environmental Compliance.................................. 10
4.12 Benefit Plans............................................. 11
4.13 Brokers................................................... 12
4.14 Taxes..................................................... 12
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF BUYER................... 13
5.1 Organization and Standing of Buyer........................ 13
5.2 Authorization............................................. 13
5.3 Enforceability............................................ 13
5.4 Compliance with Other Instruments and Laws................ 13
5.5 Governmental Authorizations and Consents.................. 13
5.6 Access.................................................... 14
5.7 Brokers................................................... 14
5.8 Buyer Awareness........................................... 14
ARTICLE 6 COVENANTS RELATING TO PERSONNEL ARRANGEMENTS.............. 14
6.1 Transferee Employees...................................... 14
6.2 COBRA Obligations......................................... 14
6.3 Plans, Benefits and Policies.............................. 15
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Page
ARTICLE 7 COVENANTS OF SELLER....................................... 15
7.1 Conduct of Business....................................... 15
7.2 Use of Business Names by Buyer............................ 16
7.3 Access.................................................... 17
ARTICLE 8 COVENANTS OF BUYER........................................ 18
8.1 Investigation............................................. 18
8.2 Assistance with Respect to Excluded Assets................ 18
8.3 Assistance with Respect to Outstanding Performance
Bonds and Collection of Accounts Receivable............... 16
ARTICLE 9 COVENANTS OF BOTH PARTIES................................. 18
9.1 Commercially Reasonable Efforts........................... 18
9.2 Governmental Filings...................................... 18
9.3 Public Announcements...................................... 19
9.4 Consents; Cooperation..................................... 19
9.5 Communications with Customers and Suppliers............... 20
9.6 Liability for Transfer Taxes.............................. 20
9.7 Books and Records......................................... 20
9.8 Tax Matters............................................... 20
9.9 Tax Elections............................................. 21
9.10 Confidentiality........................................... 22
ARTICLE 10 BUYER PROTECTIONS: OVERBIDDING PROCEDURES AND BREAK-UP FEES 22
10.1 Bankruptcy Court Approvals................................ 22
10.2 Obtaining the Orders...................................... 23
ARTICLE 11 CONDITIONS TO OBLIGATIONS OF BUYER TO CLOSE............... 23
11.1 Accuracy of Representations and Warranties................ 23
11.2 Performance............................................... 23
11.3 No Conflict............................................... 23
11.4 Certificate............................................... 24
11.5 Bankruptcy Court Approval................................. 24
11.6 Consents.................................................. 24
11.7 Transfer Documents........................................ 24
11.8 Transaction Documents..................................... 25
11.9 Further Instruments....................................... 25
ARTICLE 12 CONDITIONS TO OBLIGATIONS OF SELLER TO CLOSE.............. 25
12.1 Accuracy of Representations and Warranties................ 25
12.2 Performance............................................... 25
12.3 No Conflict............................................... 25
12.4 Certificate............................................... 26
12.5 Bankruptcy Court Approval................................. 26
12.6 Consents.................................................. 26
12.7 Assumption Agreement...................................... 26
12.8 Transaction Documents..................................... 26
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Page
12.9 Further Instruments...................................... 25
12.10 Payment................................................... 25
ARTICLE 13 TERMINATION............................................... 25
13.1 Right to Terminate Agreement.............................. 25
13.2 Effect of Termination..................................... 26
ARTICLE 14 MISCELLANEOUS............................................. 26
14.1 Expiration of Representations, Warranties and Covenants... 26
14.2 Material Adverse Effect................................... 26
14.3 Disclaimer of Projections, Etc............................ 27
ARTICLE 15 AGREEMENT CONVENTIONS..................................... 27
15.1 Further Assurances........................................ 27
15.2 Notices................................................... 27
15.3 Assignment................................................ 29
15.4 Entire Agreement; Amendment; Governing Law; Etc........... 29
15.5 Consent to Jurisdiction................................... 30
15.6 Severability.............................................. 30
15.7 Reliance on Counsel and Other Advisors.................... 30
15.8 Exhibits and Schedules.................................... 30
15.9 Rules of Construction..................................... 30
15.10 Counterparts.............................................. 31
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SCHEDULES
Schedule Subject Matter
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2.1(b) Owned and Leased Real Property
2.1(c) Transferred Intellectual Property
2.1(j) Causes of Action Not Transferred
2.2(g) Excluded Litigation Rights
2.3(c) Assumed Liabilities
2.4(f) Other Excluded Liabilities
4.6 Exceptions to Ordinary Course
4.7 Title to Transferred Assets
4.9 Assumed Contracts
4.10 Licenses, Permits and Exceptions
4.11 Environmental Compliance Exceptions
4.12 Benefit Plans
4.14 Tax Matters
5.5 Government Authorizations and Consents Required by Buyer
7.1 Conduct of Business
11.6 Consents as Conditions to Obligations
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EXHIBITS
A. Definitions
B. Note
C. Mortgage Agreement
D. Sale Procedure Motion
E. Sale Motion
F. Transition Services Agreement
G. Supply Agreement
H. Supply Agreement
v
ASSET SALE AGREEMENT
THIS ASSET SALE AGREEMENT (this "Agreement") is entered into as of
December 17, 2001, by and between BINNINGS ACQUISITION CORP., a Florida
corporation ("Buyer"), on the one hand, and BINNINGS BUILDING PRODUCTS, INC., a
Delaware corporation ("Binnings"), and AMERICAN ARCHITECTURAL PRODUCTS
CORPORATION, a Delaware corporation ("AAPC"), on the other hand. Binnings and
AAPC are collectively known as "Seller".
RECITALS
WHEREAS, Seller, among others, filed a bankruptcy petition under Chapter
11 of the United States Bankruptcy Code ("Bankruptcy Code") on December 18, 2000
(the "Filing Date") in the United States Bankruptcy Court for the Northern
District of Ohio ("Bankruptcy Court") which case is being jointly administered
as Case No. 00-43726 ("Bankruptcy Case");
WHEREAS, Binnings, through and with Binnings Pan Am ("BPA"), TM Window &
Door Company ("TMWD") and TM Architectural Products ("TMAP"), is engaged in the
business of the manufacture and sale of aluminum extrusion products and the
manufacture, sale and installation of aluminum windows, doors and related
products for residential and institutional markets. BPA, TMWD and TMAP are trade
names or dba names of Binnings;
WHEREAS, AAPC, through Fortified Window & Door Company ("Fortified"), its
wholly owned subsidiary company and a co-debtor in the Bankruptcy Case, is
engaged in the business of the manufacture, sale and installation of aluminum
windows, doors and related products for residential and institutional markets;
WHEREAS, BPA, TMWD, TMAP and Fortified are known as the "Businesses";
WHEREAS, Buyer wishes to purchase and acquire from Seller, and Seller
wishes to sell, assign and transfer to Buyer, the Transferred Assets (as defined
in Section 2.1), and Seller wishes to assume and assign to Buyer and Buyer has
agreed to assume the Assumed Liabilities (as defined in Section 2.3), with the
approval of the Bankruptcy Court pursuant to sections 363 and 365 of the
Bankruptcy Code, all for the Purchase Price (as defined in Section 3.2), and
upon the terms and subject to the conditions, herein set forth; and
WHEREAS, the transactions contemplated in this Agreement involve a sale,
other than in the ordinary course of business, of certain of Seller's assets and
properties out of Seller's bankruptcy estate pursuant to Bankruptcy Code
Sections 363 and 365.
NOW, THEREFORE, in consideration of the premises and of the
representations, warranties and covenants hereinafter set forth, and intending
to be legally bound hereby, the parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS. The definitions set forth in Exhibit A are incorporated
herein by reference.
ARTICLE 2
SALE AND PURCHASE OF THE ASSETS
2.1 TRANSFERRED ASSETS. Subject to and upon the terms and conditions set
forth in this Agreement, at the Closing, Seller shall sell, assign, transfer,
convey and deliver to Buyer, free and clear of all liens, mortgages, pledges,
security interests, charges, claims, options or other encumbrances, except as
set forth in this Agreement, and Buyer shall purchase and acquire from Seller,
all right, title and interest of Seller in and to the properties, assets,
contracts and rights of Seller exclusively used in the Businesses, other than
the Excluded Assets (collectively, the "Transferred Assets"). The Transferred
Assets include, without limitation, the following:
(a) all of the Fixed Assets;
(b) all rights and ownership interest of Seller in the owned and
leased real property listed on Schedule 2.1(b);
(c) rights in respect of the Transferred Intellectual Property
specific to the Businesses;
(d) all of the rights in respect to the Assumed Contracts, excluding
rights to collect billed retention payments for completed contracts;
(e) all inventories of goods, office and other supplies located at
the Transferred Facilities or specific to the Businesses;
(f) all of the prepaid expenses and security deposits that relate to
any of the Assumed Contracts;
(g) customer lists, files and all of the Books and Records;
(h) to the extent their transfer is permitted by Applicable Law, all
Consents and Permits specific to the Transferred Facilities, the Transferred
Assets or the Businesses;
(i) to the extent transferable, all rights under express or implied
warranties from or rights against Seller's suppliers with respect to the
Transferred Assets or the Assumed Contracts;
(j) all rights to causes of action, lawsuits, claims and demands of
any nature available to Seller that are specific to the Transferred Assets, the
Assumed Liabilities or to the
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Businesses, other than (i) avoidance actions under the Bankruptcy Code and (ii)
causes of action, lawsuits, claims and demands referred to in Schedule 2.1(j);
(k) to the extent transferable, all guarantees, warranties,
indemnities, bonds, letters of credit and similar arrangements that run in favor
of Seller in connection with the Transferred Assets;
(l) the retentions and advances that relate to the Assumed
Contracts; and
(m) additional assets arising in the ordinary course of business
between the date hereof and the Closing Date;
(n) business names of the Businesses;
(o) telephone and facsimile numbers of the Businesses;
(p) e-mail addresses and web sites of the Businesses;
(q) to the extent transferable, software used in the Businesses;
(r) all of Seller's rights and interests under all outstanding
purchase orders entered into by Seller for the purchase of goods or services
specific to the Businesses; and
(s) to the extent transferable and specific to the Businesses, all
other or additional privileges, rights, interests, properties and assets of
Seller of every kind and description and wherever located, that are used or
intended for use in connection with, or that are necessary to the continued
conduct of, the Businesses as presently being conducted.
2.2 EXCLUDED ASSETS. Notwithstanding anything contained in Section 2.1
hereof to the contrary, the Transferred Assets do not include any of the
following (herein referred to collectively as the "Excluded Assets"):
(a) except to the extent expressly set forth in the Transaction
Documents, the names and marks "American Architectural Products Corporation" and
"AAPC" and any name or mark derived from or including the foregoing, including
all corporate symbols or logos incorporating "American Architectural Products
Corporation" or "AAPC" (the "Excluded Intellectual Property");
(b) the rights in intellectual property, intangible property rights,
license agreements and software licenses not within the definition of
Transferred Intellectual Property;
(c) all collateral associated with any bonds, letters of credit and
similar arrangements provided by Seller that run in favor of third parties;
(d) intercompany receivables and payables arising between or among
the Businesses and the balance of AAPC's business from the conduct of the
Businesses prior to the Closing Date (including without limitation any prepaid
assets associated with AAPC's property, general liability and automobile
insurance policies);
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(e) all books and records relating to or used in the business of
Seller and not (i) located at the Transferred Facilities or (ii) specific to the
Businesses;
(f) all Policies, maintained by Seller, and all rights of action,
lawsuits, claims and demands, rights of recovery and set-off, and proceeds,
under or with respect to such insurance policies;
(g) all rights to causes of action, lawsuits, claims and demands
listed on Schedule 2.2(g);
(h) all right, title and interest of Seller in and to and any claims
for any refund, credit, rebate or abatement with respect to Taxes of the
Businesses for any period or portion thereof prior to the Closing Date, but only
to the extent such corresponding tax liability is not assumed by Buyer;
(i) all assets relating to Benefit Plans;
(j) all claims against third parties for Losses suffered in
connection with Excluded Assets and Excluded Liabilities;
(k) all cash and cash equivalents and similar type investments
specific to the Businesses, such as certificates of deposit, treasury bills and
other marketable securities;
(l) all accounts receivable of the Businesses, including, but not
limited to, billed retention payments for completed contracts;
(m) the services available to Seller that are not specific to the
Businesses as conducted prior to the Closing Date;
(n) except to the extent transferable and specific to the
Transferred Assets, permits related to the conduct of the Businesses;
(o) all contracts and leases rejected pursuant to Section 365 of the
Bankruptcy Code by Seller prior to the Closing Date;
(p) any properties, assets, contracts and right of Seller not
constituting a part of the Transferred Assets.
For the avoidance of doubt, and in those instances where certain categories of
Transferred Assets are expressly described as those being specific either to the
Businesses or to any other assets otherwise transferred hereby, or as otherwise
specified, the term "Excluded Assets" shall include properties, assets,
contracts and rights of the Businesses which are not primarily used in the
Businesses. Notwithstanding the foregoing, it is the intention of the parties
that Buyer is buying and shall have the benefit of all assets currently used and
necessary to operate the Businesses.
2.3 ASSUMPTION OF LIABILITIES. Subject to the terms and conditions set
forth herein, at the Closing, Buyer shall assume and agree to pay, honor,
perform and discharge when due all
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of the Liabilities and obligations relating to the Transferred Assets and the
Businesses (other than the Excluded Liabilities), including, without limitation,
the following:
(a) Liabilities and obligations of Seller to be performed from and
after the Closing Date under or relating to the Transferred Assets, Assumed
Contracts and the Transferred Facilities including without limitation any
guaranty by AAPC or an Affiliate of AAPC under an Assumed Contract;
(b) all Liabilities and obligations relating to or arising out of
the conduct of the Businesses on or after the Closing Date;
(c) all Liabilities identified on Schedule 2.3(c) and reflected on
the Financial Statements, except Sales and Use Taxes, but only to the extent
incurred on or after the Filing Date; and
(d) all Liabilities with respect to express and/or implied warranty
claims for sales made by Seller, including without limitation claims for
personal injury or damage to property other than products manufactured by
Seller.
The Liabilities and obligations described in clauses (a) through (d) are
collectively referred to as the "Assumed Liabilities."
2.4 EXCLUDED LIABILITIES. Except as specifically set forth in Section
2.3 and elsewhere in the Transaction Documents, Buyer shall not assume or in any
way be responsible for, and Seller shall remain responsible for, the following
debts, claims, commitments, liabilities and obligations of Seller and the
Businesses (the "Excluded Liabilities"):
(a) except to the extent reflected on the Financial Statements, all
Tax liabilities, including penalties and interest, in respect of periods prior
to the Closing Date;
(b) except as provided in Section 2.3, indebtedness for borrowed
money relating to the conduct of the Businesses for all periods prior to the
Closing Date;
(c) Liabilities arising directly out of the Excluded Assets;
(d) Inter-company payables and receivables between or among the
Businesses and the balance of AAPC's business arising from the conduct of the
Businesses prior to the Closing Date;
(e) Liabilities and obligations under Benefit Plans, except as
specifically provided in Article 6; and
(f) the Liabilities, if any, listed on Schedule 2.4(f); and
(g) any Liabilities relating to bankruptcy and transaction expenses
of AAPC.
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ARTICLE 3
THE CLOSING
3.1 PLACE AND DATE. The closing of the sale and purchase of the
Transferred Assets (the "Closing") and the assumption of the Assumed Liabilities
shall take place at 10:00 a.m. local time, not later than (i) the second
business day following the satisfaction or waiver of the conditions referred to
in Articles 11 and 12 or (ii) the seventh business day after the Sale Order is
obtained, whichever is later, at such place upon which the parties may agree.
The day on which the Closing actually occurs is sometimes referred to herein as
the "Closing Date." Notwithstanding the actual time of Closing on the Closing
Date, the Closing shall be deemed to have occurred as of 12:01 a.m., local time,
on the day of the Closing.
3.2 PURCHASE PRICE. On the terms and subject to the conditions set
forth in this Agreement, at Closing, Buyer shall pay or deliver the following
amounts to Seller:
(a) The sum of U.S. $500,000 (the "Purchase Price") by wire transfer
of immediately available funds to an account or accounts designated by Seller;
and
(b) A promissory note in the principal amount of $1,700,000
substantially in the form attached hereto as Exhibit B ("Note") as well as a
mortgage agreement substantially in the form attached hereto as Exhibit C
("Mortgage Agreement"). The Mortgage Agreement shall set forth Seller's first
position security interest in all owned real property of Buyer at Closing.
3.3 ALLOCATION OF PURCHASE PRICE.
(a) The parties shall allocate the aggregate consideration received
by Seller with respect to the Transferred Assets, in accordance with Section
1060 of the Tax Code, as mutually agreed to by the parties pursuant to the
procedure described below. Subject to the requirements of any applicable Tax law
or election, all such mutually agreed-to allocations shall be used by each party
in preparing any filings required pursuant to Section 1060 of the Tax Code or
any similar provisions of state or local law and all relevant Income Tax
Returns. Neither Buyer nor Seller will take any position before any taxing
authority or in any judicial proceeding with respect to Income Taxes that is
inconsistent with such mutually agreed-to allocations without the prior written
consent of the other party, in the consenting party's commercially reasonable
discretion. The parties shall exercise commercially reasonable efforts to
support such mutually agreed-to reported allocations in any audit proceedings
initiated by any taxing authority; provided, however, that Seller shall not have
any obligation to pay for an appraisal or in any other way incur unreasonable or
extraordinary out-of-pocket expenses.
(b) Within 60 days after the Closing Date, Buyer will provide to
Seller copies of IRS Form 8594 and any required exhibits thereto with Buyer's
proposed allocation of the consideration received by Seller with respect to the
Transferred Assets for Seller's approval, which shall not be unreasonably
withheld. If Seller fails to respond to Buyer within 30 days of
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Seller receiving such IRS Form 8594, then Seller shall be deemed to have
approved Buyer's allocation.
3.4 DELIVERIES. At the Closing, (a) Buyer shall deliver to or as
directed by Seller the Purchase Price, the Note and the agreements, instruments
of assumption, certificates and other documents required to be delivered by
Buyer pursuant to Article 12 and (b) Seller shall deliver to Buyer the
agreements, instruments of transfer, certificates and other documents required
to be delivered by Seller pursuant to Article 11.
3.5 CONSENTS OF THIRD PARTIES. Notwithstanding anything to the contrary
in this Agreement, this Agreement shall not constitute an agreement to assign or
transfer any Consent from a Governmental Authority, instrument, contract
(including the Assumed Contracts), lease, or other agreement or arrangement or
any claim, right or benefit arising thereunder or resulting therefrom, to the
extent that such assignment or transfer or an attempt to make such an assignment
or transfer cannot be made pursuant to Section 365 of the Bankruptcy Code
without the consent or approval of a third party. In the event any such consent
or approval is not obtained on or prior to the Closing Date, Seller shall
cooperate with Buyer in any lawful arrangement to provide that Buyer shall
receive the benefits under any such Consent, instrument, contract, lease or
other agreement or arrangement, provided that Buyer shall undertake to pay,
perform, discharge or satisfy the corresponding liabilities and obligations for
the enjoyment of such benefit to the extent Buyer would have been responsible
therefor if such consent or approval had been obtained.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SELLER
Except as set forth in the Disclosure Schedule delivered to Buyer
contemporaneously herewith (the "Disclosure Schedule"), of which the Schedules
referred to below are a part, and in the documents and other materials
identified in the Disclosure Schedule (it being agreed that any matter disclosed
in the Disclosure Schedule with respect to any section of this Agreement shall
be deemed to have been disclosed with respect to all other sections of this
Agreement), and subject to the limitations contained in Section 14.1, as of the
date of this Agreement, Seller makes to Buyer the following representations and
warranties.
4.1 ORGANIZATION, STANDING, ETC. OF SELLER. Binnings and AAPC are
corporations duly incorporated and validly existing under the laws of the
jurisdiction where they are organized and have all requisite corporate power and
authority to carry on the Businesses as currently conducted and to own or lease
and to operate the properties of the Businesses. Binnings and AAPC are in good
standing and are qualified to do business in each state of the United States in
which the Businesses are conducted that requires such qualification and where
the failure to so qualify would have a Material Adverse Effect on the
Businesses. For the purposes of the Transaction Documents, a "Material Adverse
Effect on the Businesses" means any material adverse change in, or material
adverse effect on, the assets, liabilities, business or operations of the
Transferred Assets or the Businesses taken as a whole. Seller is currently a
debtor-in-possession in the Bankruptcy Case pursuant to the Bankruptcy Code, and
retains full authority
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and power to operate its business and affairs pursuant to Sections 1107 and 1108
of the Bankruptcy Code, with no trustee, examiner, facilitator or other officer
or agent with similar authority or powers to a trustee, examiner or facilitator
having been appointed in such Bankruptcy Case.
4.2 CORPORATE AUTHORIZATION. Subject to approval by the Bankruptcy
Court, the execution, delivery and performance of this Agreement and all other
documents executed or to be executed pursuant to this Agreement by Seller, and
the consummation of the Contemplated Transactions, have been duly authorized by
all necessary corporate action on the part of Seller. Subject to approval by the
Bankruptcy Court, this Agreement has been duly executed and delivered by a duly
authorized officer of Seller.
4.3 ENFORCEABILITY. Subject to approval by the Bankruptcy Court, this
Agreement constitutes the valid and legally binding obligation of Seller,
enforceable in accordance with its terms.
4.4 GOVERNMENTAL AUTHORIZATIONS AND CONSENTS. No consents, licenses,
approvals or authorizations of, or registrations or declarations with, any
Governmental Authority are required to be obtained or made by Seller in
connection with the execution, delivery, performance, validity and
enforceability of this Agreement, other than (a) bankruptcy court approval, and
(b) other consents, licenses, approvals, authorizations, registrations or
declarations, where the failure to obtain such would not have a Material Adverse
Effect on the Businesses.
4.5 FINANCIAL STATEMENTS. Seller has delivered to Buyer the following
certified and audited financial statements and balance sheets, each as of and
for the twelve month period ending December 31, 2000 (AAPC consolidated) and the
qualified opinion for the seven months ending July 31, 2001 (the "Financial
Statements Date"): (a) income statement of the Businesses and (b) balance sheet
for the Businesses (such statements hereinafter being referred to as the
"Financial Statements"). The Financial Statements have been prepared in
accordance with past practice and the accounting records and policies of Seller
and reasonably present in all material respects the Transferred Assets and the
Assumed Liabilities of the Businesses as of the dates thereof.
4.6 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since the Financial
Statements Date, Seller has conducted its operations related to the Businesses
in the ordinary course of business except: (i) as set forth on Schedule 4.6,
(ii) the filing of the Bankruptcy Case and any actions taken in connection
therewith, and (iii) activities related to the Contemplated Transactions. Since
the Financial Statement Date, there has been no material adverse change in the
results of operations, financial condition or prospects of the Businesses which
would result in the failure to satisfy a closing condition of Buyer pursuant to
Article 11 of this Agreement
4.7 TITLE TO TRANSFERRED ASSETS. Except as set forth on Schedule 4.7,
and except for real and personal property subject to leases, Seller has good,
transferable and marketable title to or other valid ownership rights in the
Transferred Assets. This Section 4.7 does not apply to the Transferred
Intellectual Property.
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4.8 TRANSFERRED INTELLECTUAL PROPERTY.
(a) Seller owns, or is licensed or otherwise possesses the right to
use, all the Transferred Intellectual Property, and the Transferred Intellectual
Property, is all the intellectual property necessary to conduct the Businesses
substantially as currently conducted by Seller in all material respects.
(b) Schedule 2.1(c) includes a list of patents, registered
copyrights, registered trademarks, registered trade names and registered service
marks, and any pending applications therefor, included in the Transferred
Intellectual Property.
(c) To Seller's Knowledge, no claims with respect to the Transferred
Intellectual Property have been asserted and are pending as of the date of this
Agreement (i) to the effect that the sale, licensing or use of any of the
products of the Businesses infringes any other party's valid copyright,
trademark, service mark, trade secret or other intellectual property right, (ii)
against the use by Seller of any trademarks, service marks, trade names, trade
secrets, copyrights, patents, technology, know-how or computer software programs
or applications used in the Businesses as currently conducted, or (iii)
challenging the ownership or use by Seller of any of the Transferred
Intellectual Property that Seller purports to own or use, nor, to Seller's
Knowledge, is there a valid basis for such a claim described in this Section
4.8(c).
4.9 ASSUMED CONTRACTS. Schedule 4.9 includes a list of all Assumed
Contracts of the Businesses. Seller has made available to Buyer a copy or
description of all outstanding active Assumed Contracts constituting:
(a) All customer contracts and open purchase orders of the
Businesses with a reasonably expected value in excess of $35,000 per annum;
(b) All pending bids for customer contracts with a reasonably
expected value in excess of $35,000 per annum;
(c) All contracts for the employment of any Person by Seller
specific to the Businesses and providing for cash compensation equal to or
greater than $75,000 per annum;
(d) All consulting agreements in excess of $50,000 to which Seller
is a party in connection with the conduct of the Businesses;
(e) All joint venture, teaming and similar arrangements to which
Seller is a party in connection with the Businesses;
(f) All agreements for the purchase by Seller of equipment specific
to the Businesses involving outstanding commitments in excess of $50,000;
(g) All notes and installment obligations and other instruments and
contracts specific to the Businesses and relating to any borrowing of, or
issuance of letters of credit for, an amount in excess of $50,000 by Seller;
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(h) All leases of real or personal property involving payments of
more than $50,000 per annum to be assumed by Buyer; and
(i) All agreements materially limiting the freedom of Seller to
compete in the Businesses with any Person or other entity or in any geographical
area.
4.10 LICENSES AND PERMITS. Schedule 4.10 includes a list of all
permits, licenses and other authorizations from Governmental Authorities
necessary for the conduct of the Businesses as currently conducted. Seller has
all licenses, permits and other authorizations from Governmental Authorities
necessary for the conduct of the Businesses as conducted by Seller prior to the
date hereof (collectively "Permits"), except where the failure to have such
Permits could not reasonably be expected to result in a Material Adverse Effect
on the Businesses. Except as set forth on Schedule 4.10, (a) each of said
Permits is in full force and effect, (b) the Businesses are in compliance with
the terms, provisions and conditions thereof, except where the failure to be so
in compliance could not reasonably be expected to result in a Material Adverse
Effect on the Businesses, (c) to Seller's Knowledge, there are no outstanding
violations, notices of noncompliance, judgments, consent decrees, orders or
judicial or administrative actions, investigations or proceedings adversely
affecting any of said Permits, and (d) to Seller's Knowledge, no condition
exists and no event has occurred which (whether with or without notice, lapse of
time or the occurrence of any other event) would permit the suspension or
revocation of any material Permits other than by expiration of the term set
forth therein. Seller makes no representation or warranty with respect to the
transferability of the Permits to Buyer.
4.11 ENVIRONMENTAL COMPLIANCE. Except as set forth in Schedule 4.11,
the conduct of the Businesses complies in all material respects with all
Environmental Laws, except where the failure to so comply would not reasonably
be expected to result in a Material Adverse Effect on the Businesses.
"Environmental Laws" shall mean all applicable U.S. and foreign federal, state
and local laws, ordinances and regulations pertaining to air and water quality,
Hazardous Materials, waste, disposal or other environmental matters, including
the Clean Water Act, the Clean Air Act, the Federal Water Pollution Control Act,
the Solid Waste Disposal Act, the Resource Conservation Recovery Act, the
Occupational Health and Safety Act, the Comprehensive Environmental Response,
Compensation, and Liability Act, and the rules, regulations and ordinances of
the cities and other jurisdictions in which the Businesses are located, the
Environmental Protection Agency and all other applicable Governmental
Authorities. Buyer shall not have any liability for violations of, or in
connection with, the Environmental Laws with respect to the owned or leased real
property transferred pursuant to this Agreement, relating to events occurring
prior to the Closing Date.
4.12 BENEFIT PLANS.
(a) Schedule 4.12 lists and identifies (i) each employee pension
benefit plan, as defined in Section 3(2) of ERISA (a "Pension Plan"); (ii) each
employee welfare benefit plan, as defined in Section 3(1) of ERISA (a "Welfare
Plan"); and (iii) each compensation and employment arrangement, including, but
not limited to, any fringe benefit, incentive compensation, stock option, stock
purchase, bonus, severance, deferred compensation, and supplemental executive
compensation plan or employment agreement (a "Benefit Arrangement"), that is
maintained by Seller for Employees of the Businesses (collectively, the
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"Benefit Plans"). Copies of all Benefit Plans have been provided or made
available to Buyer, including, but not limited to (i) each Pension Plan and any
related trust agreement (including all amendments to such Pension Plan and
trust) and its most recent summary plan description, the most recent
determination letter issued by the IRS, and (ii) each Welfare Plan and Benefit
Arrangement and any related insurance contracts or other funding arrangement,
administrative services agreement and summary plan description and the most
recent annual report on Form 5500 required to be filed with the IRS in respect
of any Pension Plan, Welfare Plan and Benefit Arrangement. Except for the 2000
and 2001 contributions to the Pension Plans which by law may not yet required to
be made, all contributions have been made to the Pension Plans. Except as
disclosed on Schedule 4.16, Seller does not maintain or contribute to any
Welfare Plan that provides benefits to employees after termination of employment
other than as required by Part 6 of Substitute B of Title I of ERISA.
(b) Except as disclosed on Schedule 4.12, neither Seller nor any
ERISA Affiliate is obligated to contribute to any multiemployer plan, as defined
in Section 3(37) of ERISA, nor has been obligated to contribute to any
multiemployer plan, at any time during the most recent five years. As used
herein, the term "ERISA Affiliate" shall mean any corporation, partnership or
other entity which is a member of the same controlled group (within the meaning
of Section 4001(a)(14) of ERISA). With respect to any such multiemployer plan,
Seller nor any ERISA Affiliate has incurred, or is reasonably likely to incur,
any withdrawal liability under Title IV of ERISA, nor is any such plan in
reorganization.
(c) No Pension Plan is subject to Title IV of ERISA. No liability
under Subtitle C or D of Title IV of ERISA has been or is expected to be
incurred by Seller or any ERISA Affiliate with respect to any "single-employer
plan," within the meaning of Section 4001(a)(15) of ERISA, currently or formerly
maintained by Seller or any ERISA Affiliate. All contributions required to be
made by any ERISA Affiliate to any employee benefit plan subject to Section 412
of the Tax Code or Section 302 of ERISA have been timely made. No employee
benefit plan subject to Section 412 of the Tax Code sponsored, maintained or
contributed to by any ERISA Affiliate has an "accumulated funding deficiency"
(whether or not waived) within the meaning of Section 412 of the Tax Code or
Section 302 of ERISA and no ERISA Affiliate has an outstanding funding waiver.
(d) To Seller's Knowledge, each Pension Plan which is intended to be
qualified under Section 401(a) of the Tax Code as currently in effect has been
determined by the IRS to be so qualified and each trust related to any such
Pension Plan has been determined to be exempt from federal income tax under
Section 501(a) of the Tax Code. To Seller's Knowledge, there have been no
prohibited transactions (as described in Section 406 or Section 4975 of the Tax
Code) with respect to any Pension Plan. No litigation or administrative or other
proceedings involving the Benefit Plans has occurred which would reasonably be
expected to have a Material Adverse Effect on the Businesses.
(e) To Seller's Knowledge, each Benefit Plan has been administered
in accordance with its terms and Applicable Law except where the failure to be
so administered would not have a Material Adverse Effect on the Businesses.
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4.13 BROKERS. With the exception of fees and expenses payable to
Conway, Del Genio, Gries & Co., LLC, which shall be paid by AAPC, all
negotiations relating to this Agreement, and the Contemplated Transactions, have
been carried on without the participation of any Person acting on behalf of
Seller or its Affiliates in such manner as to give rise to any valid claim
against Buyer for any brokerage or finder's commission, fee or similar
compensation, or for any bonus payable to any officer, director, employee, agent
or sales representative of or consultant to Seller or its Affiliates upon
consummation of the Contemplated Transactions.
4.14 TAXES. Except as set forth on Schedule 4.14, with respect to
Taxes:
(a) Seller has properly completed and filed or caused to be filed or
shall properly complete and file or cause to be filed, within the time
prescribed by law, including extensions, all Tax Returns with respect to the
Transferred Assets that are or were required to be filed under federal, state,
local or any foreign laws on or prior to the Closing Date, except where the
failure to file such Tax Returns would not have a Material Adverse Effect on the
Businesses.
(b) Seller has, within the time and in the manner prescribed by law,
paid or caused to be paid (and until the Closing will, within the time and in
the manner prescribed by law, pay or cause to be paid) all Taxes that are shown
to be due and payable on Tax Returns filed prior to the Closing, except where
the failure to pay such Taxes would not have a Material Adverse Effect on the
Businesses. The Businesses have paid or, in the case of taxes not due or being
contested in good faith, have made adequate provisions for the payment of all
taxes for which the Businesses are or may reasonably become liable for payment.
(c) Seller shall indemnify and hold Buyer harmless from and against
any and all claims relating to the Businesses sales and use tax obligation,
which Seller specifically retains and Buyer does not assume.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as set forth below as of the
date of this Agreement:
5.1 ORGANIZATION AND STANDING OF BUYER. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction where it is organized and has all requisite corporate power and
authority to enter into this Agreement, to carry out the Contemplated
Transactions and to perform its obligations hereunder. Buyer is a domestic
corporation within the meaning of Section 7701 of the Tax Code.
5.2 AUTHORIZATION. The execution, delivery and performance of this
Agreement and all other documents executed or to be executed pursuant to this
Agreement, and the consummation of the Contemplated Transactions have been duly
authorized by all necessary
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corporate and other action on the part of Buyer. This Agreement has been duly
executed and delivered by a duly authorized officer of Buyer.
5.3 ENFORCEABILITY. This Agreement constitutes the valid and legally
binding obligation of Buyer, enforceable in accordance with its terms, except as
such enforceability may be limited by equitable principles and by applicable
bankruptcy, insolvency, reorganization, arrangement, moratorium or similar laws
relating to or affecting the rights of creditors generally.
5.4 COMPLIANCE WITH OTHER INSTRUMENTS AND LAWS. The execution, delivery
and performance of this Agreement and the consummation of the Contemplated
Transactions will not conflict with or result in any violation of or default
under any provision (a) of the charter or bylaws of Buyer, or (b) of any
mortgage, indenture, trust, lease, partnership or other agreement or other
instrument, permit, concession, grant, franchise, license, judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to Buyer or any
of its properties or assets, the result of which, with respect to items
identified in clause (b) would (either individually or in the aggregate) have a
material adverse effect on the operations or financial condition of Buyer and
its subsidiaries, taken as a whole, or would materially impair Buyer's ability
to consummate the Contemplated Transactions (a "Material Adverse Effect on
Buyer").
5.5 GOVERNMENTAL AUTHORIZATIONS AND CONSENTS. Except as set forth on
Schedule 5.5, no consents, licenses, approvals or authorizations of, or
registrations or declarations with, any Governmental Authority, bureau, agency
or commission, or any third party, are required to be obtained or made by Buyer
in connection with the execution, delivery, performance, validity and
enforceability of this Agreement other than (a) Bankruptcy Court approval, and
(b) other consents, licenses, approvals, authorizations, registrations or
declarations, where the failure to obtain such would not have a Material Adverse
Effect on Buyer. Buyer is not currently engaged in, or contemplating, any
business transaction that would be reasonably expected to hinder or delay the
authorizations and consents referred to in this Section 5.5.
5.6 ACCESS. Buyer has received and reviewed the Financial Statements
and is acquainted with the Businesses. Buyer has had an opportunity to review
the assets, books, records and contracts of the Businesses, and has been given
the opportunity to meet with officers and other representatives of Seller for
the purpose of investigating and obtaining information regarding the Businesses
operations and its financial and legal affairs.
5.7 BROKERS. No agent, broker, Person or firm acting on behalf of Buyer
or its stockholders is, or will be, entitled to any commission or broker's or
finder's fees from any of the parties hereto, or from any Person controlling,
controlled by or under common control with any of the parties hereto, in
connection with any of the Contemplated Transactions.
5.8 BUYER AWARENESS. Buyer is not aware of any fact, circumstance or
condition which would constitute a breach of any representation or warranty of
Seller contained in this Agreement, or which could reasonably be expected to
have a Material Adverse Effect on the Businesses.
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ARTICLE 6
COVENANTS RELATING TO PERSONNEL ARRANGEMENTS
6.1 TRANSFEREE EMPLOYEES. Effective as of the Closing Date, Seller
shall terminate the employment of the Employees of the Businesses. Buyer shall
offer employment to Employees of the Businesses on the Closing Date on
substantially similar terms and conditions of employment as those previously
provided by Seller. All such employees shall be referred to herein as
"Transferee Employees." Except as otherwise provided herein, Buyer shall be
responsible for all wages, salaries and benefits (including vacations) of
Transferee Employees.
6.2 COBRA OBLIGATIONS.
(a) Buyer will be solely responsible for any obligations for
continuation coverage under Section 4980B of the Tax Code and part 6 of Subtitle
B of Title I of ERISA with respect to Transferee Employees.
(b) Seller will be solely responsible for any obligations for
continuation coverage under Section 4980B of the Tax Code and part 6 of Subtitle
B of Title I of ERISA with respect to all non-Transferred Employees.
6.3 PLANS, BENEFITS AND POLICIES.
(a) Buyer and its Subsidiaries will, as of the Closing Date, adopt
and provide a group health plan for Transferee Employees.
(b) Buyer and its Subsidiaries will credit Transferee Employees with
service with Seller (and predecessors of Seller) for purposes of (i) vesting for
and eligibility to participate in any Pension Plan of Buyer, but not for
purposes of benefit accruals; (ii) any waiting periods, eligibility or
pre-existing condition limitations for any Welfare Plan of Buyer; and (iii)
eligibility and benefit computation for vacation and severance pay plans of
Buyer; provided, however, that the foregoing shall not require Buyer to offer
any of such plans to Transferee Employees, except as provided in paragraph (a)
above.
(c) Except as otherwise provided herein, as of the Closing Date, all
Transferee Employees shall cease participation in Benefit Plans of Seller.
Except as set forth in Section 2.3, Seller shall retain all liabilities related
to its Benefit Plans.
(d) After Closing, Buyer and Seller will cooperate with each other
and provide each other such information as is required concerning Transferee
Employees in order to determine whether a Transferee Employee is entitled to
compensation from either party or benefits under any plan, program or
arrangement sponsored or maintained by either party.
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(e) No provision in this Section 6.3 shall create any third-party
beneficiary rights in any employee or former employee (including any beneficiary
or dependent thereof) of Buyer, Seller or any of its respective Affiliates.
(f) Buyer shall have no responsibility, liability or obligation
relative to the Benefit Plans, except as may be set forth in this Agreement.
ARTICLE 7
COVENANTS OF SELLER
7.1 CONDUCT OF BUSINESS.
(a) Except as set forth on Schedule 7.1 or as may be otherwise
expressly permitted by this Agreement or with the prior written consent of
Buyer, and subject to any order of the Bankruptcy Court which shall take
precedence over any provision of this Agreement, from the date hereof and prior
to the Closing, Seller will: (i) operate the Businesses only in the ordinary
course; (ii) use commercially reasonable efforts to preserve intact the
organization of the Businesses; (iii) continue in full force and effect all
existing insurance policies (or comparable insurance) of or relating to the
Businesses; and (iv) use commercially reasonable efforts to preserve each
Seller's relationships with its suppliers, customers, licensors and licensees
and others having business dealings with Seller relating to the Businesses.
(b) Without limiting the generality of Section 7.1(a), and
except as may be otherwise expressly permitted by this Agreement or approved by
the Bankruptcy Court or with the prior written consent of Buyer, which shall not
be unreasonably withheld, delayed or conditioned, from the date hereof through
the Closing, Seller shall not, with respect to the Businesses:
(i) enter into any material transaction in connection
with the Businesses outside the ordinary course of business;
(ii) conduct the Businesses in a manner that departs
materially from the manner in which the Businesses were being
conducted prior to the date of this Agreement;
(iii) sell, lease, transfer, mortgage or assign any of
the Transferred Assets, tangible or intangible, other than in the
ordinary course of business;
(iv) cancel, compromise, knowingly waive or lease any
material right or claim (or series of related rights and claims)
under Material Contracts, outside the ordinary course of business;
(v) make any material change in the rate of
compensation, commission, bonus or other direct or indirect
remuneration payable, or agree to pay, conditionally or otherwise,
any material bonus, incentive, retention or other compensation,
retirement, welfare, fringe or severance benefit or vacation pay, to
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or in respect of any Employee of the Businesses, other than the
increases and payments in the ordinary course of business consistent
with past practice in the compensation payable to Employees of the
Businesses and any Retention Arrangements; and
(vi) agree to do any of the foregoing.
(c) In the event that Seller wishes to engage in any act which falls
within the provisions of Section 7.1(b), Seller shall provide notice thereof to
Buyer who shall advise Seller within three business days of any objection Buyer
has with respect to such action. In the event that Buyer fails to object within
such period, Buyer shall be deemed to have waived any objection to such act.
7.2 USE OF BUSINESS NAMES BY BUYER.
(a) Buyer acknowledges that Seller has asserted the absolute and
exclusive proprietary right to all names, marks, trade names, trademarks,
service names and service marks (collectively, "Names") incorporating "American
Architectural Products Corporation" or "AAPC" or any similar Name and to all
corporate symbols or logos (collectively, "Logos") incorporating "American
Architectural Products Corporation" or "AAPC" or any similar Name. All rights of
Seller and its Affiliates to the same and the goodwill represented thereby and
pertaining thereto are being retained by Seller or its Affiliates. Buyer agrees
that it will not, and will cause the Businesses not to, use the American
Architectural Products Corporation or AAPC Name or any similar Name or any Logo
incorporating such Name or any similar Name in any manner, including in
connection with the sale of any products or services or otherwise in the conduct
of the Businesses, except as expressly permitted by subsection (b) of this
Section 7.2.
(b) For a period of six months from the Closing Date (the "Window
Period"), Seller shall and hereby irrevocably grants, effective as of the
Closing Date, on a fully-paid, royalty-free basis, to Buyer, the non-exclusive
right to use the American Architectural Products Corporation and AAPC Logos and
the American Architectural Products Corporation and AAPC Names in connection
with the operation of the Businesses as currently conducted including, during
the Window Period, to (i) market and sell all such services and products
produced by the Businesses and (ii) use any other assets on hand included in the
Transferred Assets, including, without limitation, any catalogs, invoices,
packaging material or stationery, bearing the American Architectural Products
Corporation and AAPC Names or American Architectural Products Corporation and
AAPC Logos (provided, however, that Buyer shall use its commercially reasonable
efforts to cease its use of the American Architectural Products Corporation and
AAPC Names and the American Architectural Products Corporation and AAPC Logos
within the Window Period). Immediately upon the expiration of the Window Period,
Buyer shall cease to use in any manner the American Architectural Products
Corporation and AAPC Names and the American Architectural Products Corporation
and AAPC Logos incorporating such Names and remove or obliterate such Names and
the American Architectural Products Corporation and AAPC Logos from any products
or other Assets and clearly and prominently mark the new name of the Businesses
thereon. Except as set forth in this Article 7.2, at all times following the
Closing, Buyer shall not indicate that Buyer or the Businesses are affiliated
with Seller or any of its Affiliates.
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(c) Immediately following the Closing Date, Seller shall take the
commercially reasonable efforts necessary to modify the formal corporate or
trade names, as the case may be, of BPA, TMWD, TMAP and Fortified in all
jurisdictions where those names are registered and shall make such names
available for Buyer's use.
7.3 ACCESS. Subject to reasonable notice and as permitted by law,
Seller shall afford to Buyer and its accountants, counsel and other agents and
representatives full access during normal business hours throughout the period
prior to the Closing Date to all of the properties, books, contracts,
commitments and records of the Businesses and, during such period, Seller shall
furnish promptly to Buyer and its representatives in relation to the Businesses
access to all other information concerning the business, properties and
personnel of the Businesses as Buyer may reasonably request. Seller shall
promptly upon request provide Buyer access to a true, complete and correct copy
of each written agreement or other instrument, together with all amendments or
clarifications thereto, and a true, complete and correct summary of the terms
and conditions of each oral agreement, identified in the Disclosure Schedule. If
access is restricted due to a term in the agreement or by Applicable Law, Seller
shall use its commercially reasonable efforts to secure consent from the other
party(ies) to the agreement to provide such access prior to Closing with
sufficient time for Buyer review. Buyer will treat the documents and other
material and information referred to in this Section 7.3 as confidential in
compliance with Section 9.10.
ARTICLE 8
COVENANTS OF BUYER
8.1 INVESTIGATION. In conducting its review of the Businesses, Buyer
shall conduct itself so as to not unreasonably interfere with the Businesses or
with the performance of Seller's employees.
8.2 ASSISTANCE WITH RESPECT TO EXCLUDED ASSETS. Following the Closing
Date, upon request of Seller, Buyer will use its commercially reasonable efforts
to assist Seller in connection with collection, maintenance or liquidation of
the Excluded Assets. If Buyer receives payment in respect of such items
following the Closing, Buyer shall promptly pay such amounts to Seller and shall
notify promptly each such payor that any and all payments by that payor to
Seller in the future should be made directly to Seller.
8.3 ASSISTANCE WITH RESPECT TO OUTSTANDING PERFORMANCE BONDS AND
COLLECTION OF ACCOUNTS RECEIVABLES. Following the Closing Date, Buyer will
assist Seller, as Seller may reasonably request, in collection of all retained
receivables as identified in Section 2.2(l) and in satisfying and releasing all
outstanding performance bonds of the Businesses as of the Closing Date. Buyer's
assistance to Seller regarding collection of accounts receivable of the
Businesses (an Excluded Asset pursuant to Article 2.2(l)) shall be governed by a
Transition Services Agreement substantially in the form attached hereto as
Exhibit F.
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ARTICLE 9
COVENANTS OF BOTH PARTIES
9.1 COMMERCIALLY REASONABLE EFFORTS. Subject to the terms and
conditions of this Agreement, each party will use its commercially reasonable
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary or desirable under Applicable Law and the terms of
this Agreement to consummate the Contemplated Transactions, including the
execution and delivery of any further instruments or documents which are
reasonably requested by a party or its counsel to any party signatory hereto in
order to evidence or facilitate the consummation of the Contemplated
Transactions.
9.2 GOVERNMENTAL FILINGS. Buyer and Seller shall cooperate with one
another (i) in determining whether any action by or in respect of, or filing
with, any Governmental Authority is required, or any actions, consents,
approvals or waivers are required to be obtained from parties to any Material
Contracts, in connection with the consummation of the Contemplated Transactions
and (ii) in taking such actions or making any such filings, in furnishing such
information as may be required in connection therewith, and in seeking timely to
obtain any such actions, consents, approvals or waivers.
9.3 PUBLIC ANNOUNCEMENTS. None of Buyer, Seller nor any of their
Affiliates will issue any press release or make any public statement with
respect to this Agreement or the Contemplated Transactions, or disclose the
existence of this Agreement to any Person or entity, prior to the Closing and,
after the Closing, will not issue any such press release or make any such public
statement without the prior consent of the other party (which consent shall not
be unreasonably withheld or delayed), subject to any applicable disclosure
obligations pursuant to Applicable Law (including Seller's and Buyer's
requirement to issue a press release promptly after the execution of this
Agreement, Seller's obligation to file a Form 8-K with the U.S. Securities and
Exchange Commission, and disclosures required in connection with the Bankruptcy
Case), provided that the party proposing to issue any press release or similar
public announcement or communication in compliance with any such disclosure
obligations shall use commercially reasonable efforts to consult in good faith
with the other party before doing so. In addition, Seller may inform its
employees of the Contemplated Transactions, and Seller may continue to
communicate with persons potentially interested in acquiring all or part of the
Businesses, as may be required by applicable bankruptcy law.
9.4 CONSENTS; COOPERATION. Seller and Buyer will use their commercially
reasonable efforts:
(a) to obtain prior to the earlier of the date required (if so
required) or the Closing Date, all authorizations, consents, orders, permits or
approvals of, or notices to, or filings, registrations or qualifications with,
all Governmental Authorities (including, without limitation, the approval of the
Bankruptcy Court) and any other Person or entity that are required on their
respective parts, for the consummation of the Contemplated Transactions;
(b) to defend, consistent with applicable principles and
requirements of law, any lawsuit or other legal proceeding, whether judicial or
administrative, whether brought
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derivatively or on behalf of third Persons (including Governmental Authorities)
challenging this Agreement or the Contemplated Transactions;
(c) to furnish to each other such information and assistance as may
reasonably be requested in connection with the foregoing;
(d) to reasonably assist each other as necessary with regard to the
determination of contract or order closeouts or other issues which affect the
Assumed Contracts, to notify Buyer of additional disallowances or potential
adverse audit findings, and to consult and reach agreement with respect to
advanced coordination of negotiating positions, offers of compromise, or final
agreements or settlements, all such cooperation to be at a reasonable charge to
the party receiving such cooperation; and
(e) to enter into mutually acceptable arrangements pursuant to which
any payments recovered by Seller following the Closing Date in respect of
receivables arising under the Assumed Contracts following the Closing Date are
promptly remitted to Buyer.
9.5 COMMUNICATIONS WITH CUSTOMERS AND SUPPLIERS. Seller and Buyer will
mutually agree upon all communications with suppliers and customers of the
Businesses relating to this Agreement and the Contemplated Transactions prior to
the Closing Date.
9.6 LIABILITY FOR TRANSFER TAXES.
(a) The parties shall cooperate and use commercially reasonable
efforts to avail themselves of the exemption from transfer taxes contained in
Section 1146(c) of the Bankruptcy Code. Buyer and Seller shall equally share
responsibility for and pay in a timely manner all sales, use, value added,
documentary, stamp, gross receipts, foreign withholding, registration, transfer,
conveyance, excise, recording, license and other similar Taxes and fees
(including without limitation any goods and services tax, but for the avoidance
of doubt, excluding any Income Taxes) ("Transfer Taxes") arising out of or in
connection with or attributable to the Contemplated Transactions. Each party
hereto shall prepare and timely file all Tax Returns required to be filed in
respect of Transfer Taxes that are the primary responsibility of such party
under Applicable Law, provided, however, that such party's preparation of any
such Tax Returns shall be subject to the other party's approval which approval
shall not be unreasonably withheld, conditioned or delayed.
(b) The Transferred Assets are composed of (i) assets as to which
the "isolated, casual or occasional sale" exemption or similar exemption from
Transfer Taxes is or may be applicable and (ii) other assets as to which other
exemptions from Transfer Taxes are or may be applicable. In order to obtain any
exemption or favorable tax rate, Buyer shall, to the extent consistent with
Applicable Law, provide Seller with any exemption or resale certificate, permit,
license or such other documentation as may be required by any taxing authority
to establish the right to such exemption or tax rate.
9.7 BOOKS AND RECORDS. Subject to the confidentiality provisions
hereof, Seller shall have the right to retain copies of the Books and Records.
From and after the Closing and until
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the sixth anniversary thereof, (a) Seller agrees to grant to Buyer, upon
reasonable notice and during normal business hours, reasonable access to any
books and records that pertain to the Businesses, but which are not Books and
Records, to the extent it is operating and has books and records in its
possession, and (b) Buyer agrees to grant to Seller or its estate, upon
reasonable notice and during normal business hours, reasonable access to any
Books and Records included in the Transferred Assets that pertain to the
operations of the Businesses on or prior to the Closing Date.
9.8 TAX MATTERS.
(a) Seller and Buyer shall provide each other and its Affiliates
with such assistance and documents, without charge and in a timely fashion, as
may be reasonably requested by either of them in connection with (i) the
preparation of any Tax Return, (ii) the conduct of any procedure relating to
Taxes, or (iii) any other matter that is the subject of this Agreement. Such
assistance shall include, without limitation: (i) the provision on demand of
books, records, Tax Returns, documentation or other information relating to any
relevant Tax Return ("Tax Data"); (ii) the execution of any document that may be
necessary or reasonably helpful in connection with the filing of any Tax Return,
or in connection with any procedure relating to Taxes, including, without
limitation, the execution of powers of attorney and extensions of applicable
statutes of limitations; and (iii) the use of reasonable efforts to obtain any
documentation from any Governmental Authority or other Person that may be
necessary or reasonably helpful in connection with the foregoing. Such
cooperation shall include, without limitation, making their respective employees
and independent auditors reasonably available on a mutually convenient basis for
all reasonable purposes, including, without limitation, to provide explanations
and background information and to permit the copying of books, records,
schedules, workpapers, notices, revenue agent reports, settlement or closing
agreements and other documents containing the Tax Data ("Tax Documentation"). If
a third party is retained in connection with any review hereunder, the party
retaining such third party shall be responsible for any fees and expenses for
such third party.
(b) Seller and Buyer shall retain or cause to be retained the Tax
Data, the Tax Documentation, all Tax Returns, schedules and workpapers, and all
material records or other documents relating thereto, until one year after the
expiration of all applicable statutes of limitations (including any waivers or
extension thereof) with respect to the Taxable periods to which such Tax Returns
and other documents relate or until the expiration of any additional period that
either Buyer or Seller, as the case may be, may reasonably request in writing
with respect to specifically designated material records or documents; provided,
however, that in the event an audit, examination, investigation or other
proceeding has been instituted prior to the expiration date of an applicable
statute of limitations, the Tax Data and Tax Documentation relating thereto
shall be retained until there is a final determination thereof (and the time for
any appeal has expired). After the expiration of the time when the Tax Data and
the Tax Documentation must be retained pursuant to this Section 9.8, then any
such material may be destroyed. Seller shall give Buyer not less than thirty
(30) days prior written notice before Tax Data or Tax Documentation in the
possession or control of any member of the consolidated group of which AAPC is
the common parent is destroyed and shall give Buyer an opportunity to copy any
such material during such thirty (30) day period. Buyer shall give Seller not
less than
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thirty (30) days prior written notice before any Tax Data or Tax Documentation
in the possession or control of Buyer or any Transferred Subsidiary is destroyed
and shall give Seller an opportunity to copy any such material during such
thirty (30) day period.
9.9 TAX ELECTIONS. No material new elections with respect to Taxes, or
any material changes in current elections with respect to Taxes, affecting the
Transferred Assets for periods beginning on or after the Closing Date and which
are adverse to AAPC or any of its Subsidiaries shall be made after the date of
this Agreement without the prior written consent of both Seller and Buyer.
9.10 CONFIDENTIALITY.
(a) Between the date of this Agreement and the Closing Date,
Buyer and Seller will maintain in confidence, and will cause their respective
Affiliates, directors, officers, employees, agents and advisors to maintain in
confidence, and not use to the detriment of another party any written, oral, or
other information obtained in confidence from another party in connection with
this Agreement or the Contemplated Transactions, unless (i) such information is
already known to such party or to others not bound by a duty of confidentiality
or such information becomes publicly available through no fault of such party,
(ii) the use of such information is necessary or appropriate in making any
filing or obtaining any consent or approval required for the consummation of the
Contemplated Transactions (including, without limitation, Bankruptcy Court
approval of any of the Contemplated Transactions), or (iii) the furnishing or
use of such information is required by legal proceedings, provided, however,
that the party required to disclose the confidential information shall first
notify the other party of such order and afford the other party the opportunity
to seek a protective order relating to such disclosure. Notwithstanding anything
herein to the contrary, Seller shall not be under any restrictions with respect
to disclosures to the Unsecured Creditors Committee, CIT Group/Business Credit,
Inc. or the Bankruptcy Court in the Bankruptcy Case.
(b) If the Contemplated Transactions are not consummated, each party
will immediately return or destroy all such confidential information and any and
all copies thereof, however stored, and, if requested by the other party, shall
certify conformity with this Section 9.10(b) in writing.
9.11 TM REAL PROPERTY LEASE: Seller shall reject the real property
lease pursuant to Section 365 of the Bankruptcy Code for the TM manufacturing
facility located at 601 NW 12th Avenue, Pompano Beach, FL (the "Lease
Rejection"). The Lease Rejection will be effective 90 days following the Closing
Date ("Lease Rejection Date"). Buyer shall vacate the premises and return the
premises to the landlord, in accordance with the lease, no later than the Lease
Rejection Date and Buyer shall further pay to Seller all leasehold obligations
pursuant to the lease through the Lease Rejection Date
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ARTICLE 10
BUYER PROTECTIONS: OVERBIDDING PROCEDURES
AND BREAK-UP FEES
10.1 BANKRUPTCY COURT APPROVALS. As promptly as practicable, Seller
shall file with the Bankruptcy Court and serve motions, subject to Buyer's
reasonable approval, substantially in the form attached hereto as Exhibits D and
E, seeking: (i) a hearing (the "Interim Hearing") before the Bankruptcy Court
for an order (A) approving, among other things, the adequacy of notice to
creditors and parties in interest of the final hearing to approve the sale of
the Transferred Assets and the assumption of the Assumed Liabilities, bidding
procedures and Break-Up Fee (the "Sale Hearing"), and (B) setting a date for the
Sale Hearing (the "Interim Order"); and (ii) an order authorizing, among other
things, (A) Seller to sell the Transferred Assets to Buyer pursuant to this
Agreement and Sections 363 and 365 of the Bankruptcy Code, free and clear of all
encumbrances (including without limitation any and all "interests in the
Transferred Assets" within the meaning of Bankruptcy Code Section 363(f)),
except for the Assumed Liabilities, and (B) Buyer to assume the Assumed
Liabilities and Seller to be relieved of liability therefrom (the "Sale Order").
10.2 OBTAINING THE ORDERS. Seller shall use its commercially reasonable
efforts to obtain the Interim Order and the Sale Order as soon as reasonably
practicable. The Interim Order and the Sale Order shall be in form and substance
reasonably satisfactory to the Buyer.
ARTICLE 11
CONDITIONS TO OBLIGATIONS OF BUYER TO CLOSE
The obligations of Buyer to purchase the Businesses and the Transferred
Assets and otherwise consummate the transactions that are to be consummated at
the Closing are subject to the satisfaction, as of the Closing Date, of the
following conditions (any of which may be waived by Buyer, in its sole
discretion, in whole or in part):
11.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties of Seller set forth in Article 4 shall be accurate in all
material respects as of the Closing, as though made on and as of the Closing
Date, except to the extent that (a) any of such representations and warranties
refers specifically to a date other than the Closing Date, in which case such
representation or warranty shall have been accurate in all material respects as
of such other date, and (b) the accuracy of any of such representations and
warranties is affected by any of the Contemplated Transactions, provided that
this Section 11.1 shall not entitle Buyer to refuse to close the Contemplated
Transactions unless the inaccuracies of the representations and warranties set
forth in Article 4 give rise, or would reasonably be expected to give rise, to a
Material Adverse Effect on the Businesses.
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11.2 PERFORMANCE. Seller shall have performed in all material respects
all obligations required by this Agreement to be performed by Seller on or
before the Closing Date, except where the failure to perform such obligations
did not and would not reasonably be expected to result in a Material Adverse
Effect on the Businesses.
11.3 NO CONFLICT. The Contemplated Transactions and the consummation of
the Closing shall not be illegal or prohibited under any Applicable Law. No
temporary restraining order, preliminary or permanent injunction, cease and
desist order or other order issued by any court of competent jurisdiction or any
competent Governmental Authority or any other legal restraint or prohibition
preventing the transfers contemplated hereby or the consummation of the Closing
shall be in effect, and there shall be no pending or threatened actions or
proceedings by any Governmental Authority (or determinations by any Governmental
Authority) that result, or would reasonably be expected to result, in a Material
Adverse Effect on the Businesses.
11.4 CERTIFICATE. Buyer shall have received from a duly authorized
officer of Seller a certificate dated the Closing Date confirming, to such
person's knowledge, that the conditions in Sections 11.1, 11.2 and 11.3 have
been met. Such officer shall be one of the persons whose knowledge comprises
Seller's Knowledge.
11.5 BANKRUPTCY COURT APPROVAL. The Bankruptcy Court shall have entered
the Sale Order, in form and substance reasonably satisfactory to Buyer, and the
implementation, operation or effect of such order shall not be stayed or any
stay entered shall have been dissolved.
11.6 CONSENTS. All approvals, consents, waivers and authorizations
required to be obtained by Seller in connection with the Contemplated
Transactions that are identified on Schedule 11.6 shall have been obtained and
shall be in full force and effect, except where the failure to obtain such
consents did not and would not reasonably be expected to result in a Material
Adverse Effect on the Businesses.
11.7 TRANSFER DOCUMENTS. Seller shall have delivered to Buyer at the
Closing all documents, certificates and agreements necessary to transfer to
Buyer all of Seller's right and title to and interests in the Transferred Assets
free and clear of all liens, mortgages, pledges, security interests, actions or
other encumbrances, except those assumed by Buyer, including, without
limitation:
(a) bills of sale, assignments and general conveyances, in form and
substance reasonably satisfactory to Buyer, dated the Closing Date, with respect
to the Transferred Assets;
(b) assignments of all Assumed Contracts and any other agreements
and instruments constituting Transferred Assets, dated the Closing Date,
assigning to Buyer all of Seller's right, title and interest therein and
thereto;
(c) certificates of title to all owned motor vehicles, if any,
included in the Transferred Assets to be transferred to Buyer hereunder, duly
endorsed for transfer to Buyer as of the Closing Date; and
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(d) general warranty real property deeds transferring all of
Seller's interest in the owned transferred real property to Buyer.
11.8 TRANSITION SERVICES AGREEMENT. Seller shall deliver to Buyer the
Transition Services Agreement substantially in the form attached hereto as
Exhibit F.
11.9 SUPPLY AGREEMENTS. Seller shall deliver to Buyer the Supply
Agreements substantially in the form attached hereto as Exhibits G and H.
11.10 TRANSACTION DOCUMENTS. Buyer and Seller shall have entered into
the Transaction Documents.
11.11 FURTHER INSTRUMENTS. Seller shall deliver to Buyer such further
instruments of assignment, conveyance or transfer or other documents of further
assurance as Buyer may reasonably request reasonably in advance of the Closing.
ARTICLE 12
CONDITIONS TO OBLIGATIONS OF SELLER TO CLOSE
The obligation of Seller to sell the Transferred Assets and otherwise
consummate the transactions that are to be consummated at the Closing is subject
to the satisfaction, as of the Closing Date, of the following conditions (any of
which may be waived by Seller upon consultation with and approval by the
Official Committee of Unsecured Creditors ("Committee"), in their sole
discretion in whole or in part):
12.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties of Buyer set forth in Article 5 shall be accurate in all material
respects as of the Closing, as though made on and as of the Closing Date, except
to the extent that (a) any of such representations and warranties refers
specifically to a date other than the Closing Date, in which case such
representation or warranty shall have been accurate in all material respects as
of such other date, or (b) the accuracy of any of such representations and
warranties is affected by any of the Contemplated Transactions.
12.2 PERFORMANCE. Buyer shall have performed in all material respects
all obligations required by this Agreement to be performed by Buyer on or before
the Closing Date except where the failure to perform such obligations did not
and would not reasonably be expected to result in a material adverse effect on
the Contemplated Transactions.
12.3 NO CONFLICT. The Contemplated Transactions and the consummation of
the Closing shall not be illegal or prohibited under any Applicable Law. No
temporary restraining order, preliminary or permanent injunction, cease and
desist order or other order issued by any court of competent jurisdiction or any
competent Governmental Authority or any other legal restraint or prohibition
preventing the transfer contemplated hereby or the consummation of the Closing,
or imposing damages in respect thereto, shall be in effect, and there shall be
no pending or threatened actions or proceedings by any Governmental Authority
(or determinations by any
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Governmental Authority) that would reasonably be expected to have a material
adverse effect on the Contemplated Transactions.
12.4 CERTIFICATE. Seller shall have received from a duly authorized
officer of Buyer a certificate dated the Closing Date confirming, to such
person's knowledge, that the conditions in Sections 12.1, 12.2 and 12.3 have
been met.
12.5 BANKRUPTCY COURT APPROVAL. The Bankruptcy Court shall have entered
the Sale Order, in form and substance reasonably satisfactory to Seller, and the
implementation, operation or effect of such order shall not be stayed or any
stay entered shall have been dissolved.
12.6 CONSENTS. All approvals, consents, waivers and authorizations
required to be obtained by Buyer in connection with the Contemplated
Transactions that are identified on Schedule 11.6 shall have been obtained and
shall be in full force and effect, except where the failure to obtain such
consents did not and would not reasonably be expected to have a material adverse
effect on the Contemplated Transactions.
12.7 ASSUMPTION AGREEMENT. Seller shall have received from Buyer an
assumption agreement, in form and substance satisfactory to Seller, under which
Buyer shall have assumed the Assumed Liabilities.
12.8 TRANSACTION DOCUMENTS. Buyer and Seller shall have entered into
the other Transaction Documents.
12.9 FURTHER INSTRUMENTS. Buyer shall deliver to Seller such further
instruments of assumption or other documents of further assurance as Seller may
reasonably request reasonably in advance of the Closing.
12.10 PAYMENT. Seller shall have received immediately available funds
by wire transfer, and the Note, in accordance with Section 3.2 hereto.
12.11 TRANSITION SERVICES AGREEMENT. Buyer shall deliver to Seller the
Transition Services Agreement substantially in the form attached hereto as
Exhibit F.
12.12 SUPPLY AGREEMENTS. Buyer shall deliver to Seller the Supply
Agreements substantially in the form attached hereto as Exhibits G and H.
12.13 MORTGAGE AGREEMENT. Buyer shall deliver to Seller the Mortgage
Agreement substantially in the form attached hereto as Exhibit C.
ARTICLE 13
TERMINATION
13.1 RIGHT TO TERMINATE AGREEMENT. This Agreement may be terminated and
the Contemplated Transactions may be abandoned at any time prior to the Closing
(the actual date on which this Agreement is terminated being referred to herein
as the "Termination Date"):
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(a) by Buyer or Seller, if the Closing has not occurred on or before
January 31, 2002 (the "Outside Date"), unless such failure to close is due to
the failure of the party seeking to terminate this Agreement to comply fully
with its obligations under this Agreement;
(b) by mutual written consent of Buyer and Seller, subject to any
necessary Bankruptcy Court approval; or
(c) (i) by Buyer, if any of the conditions in Article 11 has not
been satisfied or if satisfaction of any such condition is or becomes impossible
as of the Outside Date (other than through the failure of Buyer to comply with
Buyer's obligations under this Agreement), and Buyer has not waived such
conditions on or before the Outside Date; or
(ii) by Seller, if any of the conditions in Article 12 has not
been satisfied or if satisfaction of any such condition is or
becomes impossible as of the Outside Date (other than through the
failure of Seller to comply with Seller's obligations under this
Agreement), and Seller has not waived such conditions on or before
the Outside Date; or
(d) automatically, if the Bankruptcy Court shall have entered an
order approving a Competing Bid and the Contemplated Transactions by the
Competing Bid are subsequently consummated;
Notwithstanding anything to the contrary, any termination by Seller shall be
made only upon consultation and approval of the Committee.
13.2 EFFECT OF TERMINATION. Upon the termination of this Agreement
pursuant to Section 13.1, Buyer shall promptly cause to be returned to Seller
all documents and information obtained in connection with this Agreement and the
Contemplated Transactions and all documents and information obtained in
connection with Buyer's investigation of the Businesses, including any copies
made by or supplied to Buyer or any of Buyer's agents of any such documents or
information.
ARTICLE 14
MISCELLANEOUS
14.1 EXPIRATION OF REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations and warranties set forth in Articles 4 and 5 of this Agreement
shall terminate and expire, and shall cease to be of any force or effect, on the
Closing Date (except that Buyer's representation and warranty contained in
Section 5.7 shall survive the Closing; all liability of the parties hereto with
respect to such representations, warranties and covenants shall thereupon be
extinguished; and BUYER ACKNOWLEDGES THAT IT HAS HAD SUFFICIENT OPPORTUNITY TO
MAKE WHATEVER INVESTIGATION MAY BE NECESSARY AND
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ADVISABLE FOR PURPOSES OF DETERMINING WHETHER OR NOT TO ENTER INTO AND CLOSE THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. For the avoidance of doubt, the
covenants provided for in Sections 9.4 and 9.10 and the provisions of Articles
14 and 15 shall continue without expiration or limit, the covenants provided for
in Sections 9.6 and 9.8 shall continue until the first anniversary of the
statute of limitations with respect to the statutes governing the applicable
Taxes and the covenant provided for in Section 9.7 shall continue until the
sixth anniversary of the Closing; provided however, that nothing in this
sentence shall prevent Seller and/or any of its Affiliates from consummating a
complete liquidation.
14.2 MATERIAL ADVERSE EFFECT. Any adverse change, event or effect that
is proximately caused by conditions affecting the United States or international
economy generally shall not be taken into account in determining whether there
has been or would be a Material Adverse Effect on the Businesses or a Material
Adverse Effect on Buyer (unless such conditions adversely affect Seller or
Buyer, as the case may be, in a materially disproportionate manner). Any adverse
change, event or effect that is proximately caused by any industry in which
Buyer or Seller competes shall not be taken into account in determining whether
there has been or would be a Material Adverse Effect on Buyer or Material
Adverse Effect on the Businesses (unless such conditions adversely affect Seller
or Buyer, as the case may be, in a materially disproportionate manner). Any
adverse change, event or effect that is proximately caused by the marketing,
announcement or pendency of the sale of the Businesses and the Transferred
Assets shall not be taken into account in determining whether there has been or
would be a Material Adverse Effect on Buyer or a Material Adverse Effect on the
Businesses.
14.3 DISCLAIMER OF PROJECTIONS, ETC. Seller makes no representation or
warranty to Buyer except as specifically made in this Agreement. In particular,
Seller makes no representation or warranty to Buyer with respect to the contents
of the Seller's descriptive materials and management presentations to Buyer or
the data room made available to Buyer, including the certainty or accuracy of
any financial projection or forecast delivered by or on behalf of Seller to
Buyer. Buyer acknowledges that (a) there are uncertainties inherent in
attempting to make such projections and forecasts, (b) it is familiar with such
uncertainties, (c) it is taking full responsibility for making its own
evaluation of the adequacy and accuracy of all such projections and forecasts so
furnished to it, and (d) it shall have no claim against Seller with respect
thereto.
ARTICLE 15
AGREEMENT CONVENTIONS
15.1 FURTHER ASSURANCES. Each party agrees, at any time and from time
to time after the Closing Date, upon reasonable request from the other party, to
do, execute, acknowledge and deliver, as appropriate, such further acts, deeds,
assignments, transfers, conveyances, assumptions, and powers of attorney as may
reasonably be required for (a) the better assigning, transferring, granting,
conveying, assuming, assuring and confirming to such other party, or its
successors and assigns, of any of the assets, properties or liabilities to be
assigned to it, or (b) the reassignment or return to Seller of assets that may
have been inadvertently assigned, transferred
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or delivered to Buyer but should not have been so assigned, transferred or
delivered, in each case as provided in the Transaction Documents.
15.2 NOTICES. All notices, requests, demands, waivers and other
communications required or permitted to be given under the Transaction Documents
shall be in writing and shall be deemed to have been duly given if (a) delivered
personally, (b) mailed by first-class, registered or certified mail, return
receipt requested, postage prepaid, (c) sent by next-day or overnight mail or
courier or (d) sent by facsimile transmission. All such notices, requests,
demands, waivers and other communication shall be deemed to have been received
(i) if by personal delivery, upon delivery, (ii) if by certified or registered
mail, on the third business day after the mailing thereof, (iii) if by next-day
or overnight mail or courier, on the business day after such mailing, (iv) if by
facsimile, three hours after the sender receives a fax confirmation, unless the
fax is sent after 5:00 p.m. on a business day or on a non-business day, in which
case it shall be deemed received on the next business day.
If to Buyer:
Binnings Acquisition Corp.
3000 Northwest 125th Street
Miami, Florida 33167-2515
Attention: J. Larry Powell
Tel: (305) 681-0045
Fax: (305) 681-3988
with a copy to:
Mark Loterstein, Esq.
Benson, Moyle & Mucci, LLP
Bank of America Tower
One Financial Plaza, Suite 1600
Fort Lauderdale, FL 33394-1697
Tel: (954) 524-6800
Fax: (954) 463-6963
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If to Seller, to:
American Architectural Products Corporation
6500 Brooktree Road
Suite 101
Wexford, PA 15090
Attention: Joseph Dominijanni
Tel: (724) 940-2330
Fax: (724) 940-2340
with a copy to:
American Architectural Products Corporation
860 Boardman - Canfield Road
Suite 107
Boca Building
Boardman, Ohio 44512
Tel: (330) 965-9910
Fax: (330) 965-9915
Attention: Jonathan Schoenike, Esq.
and
Squire, Sanders & Dempsey L.L.P.
Two Renaissance Square
40 North Central Avenue, Suite 2700
Phoenix, AZ 85004-4498
Attention: Jordan A. Kroop, Esq.
Tel: (602) 528-4024
Fax: (602) 253-8129
or, in each case, to such other address as may be specified in writing to the
other parties.
Any party may give any notice, instruction or communication in
connection with the Transaction Documents using any other means (including
personal delivery, telecopy or ordinary mail), but no such notice, instruction
or communication shall be deemed to have been delivered unless and until it is
actually received by the party to whom it was sent. Any party may change the
address to which notices, instructions, or communications are to be delivered by
giving the other parties to the Transaction Documents notice thereof in the
manner set forth in this Section 15.2.
15.3 ASSIGNMENT. This Agreement may not be assigned by any party
without the express written consent of the other parties hereto. Subject to the
foregoing, this Agreement and the rights and obligations set forth herein shall
inure to the benefit of, and be binding upon, the parties hereto and each of
their respective successors, heirs and permitted assigns.
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15.4 ENTIRE AGREEMENT; AMENDMENT; GOVERNING LAW; ETC. The Transaction
Documents (together with the Exhibits and Schedules thereto) embody the entire
agreement and understanding among the parties hereto with respect to the subject
matter thereof. The Transaction Documents may be amended, modified, waived,
discharged or terminated only by (and any consent hereunder shall be effective
only if contained in) an instrument in writing signed by the party against which
enforcement of such amendment, modification, waiver, discharge, termination or
consent is sought. The Transaction Documents shall be construed in accordance
with and governed by the laws of the State of Florida as it applies to contracts
to be performed entirely within Florida.
15.5 CONSENT TO JURISDICTION. THE BANKRUPTCY COURT SHALL HAVE
JURISDICTION OVER ALL MATTERS, INCLUDING, BUT NOT LIMITED TO, ANY LEGAL ACTION,
SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY RELATED
AGREEMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY AND THE
INTERPRETATION, IMPLEMENTATION AND ENFORCEMENT OF THIS AGREEMENT, AND THE
PARTIES HERETO IRREVOCABLY SUBMIT AND CONSENT TO SUCH JURISDICTION.
Each of Buyer and Seller further agrees that service of any process,
summons, notice or document by U.S. registered mail to such party's respective
address set forth in Section 15.2 of this Agreement shall be effective service
of process for any action, suit or proceeding with respect to any matters to
which it has submitted to jurisdiction as set forth above. Each of Buyer and
Seller irrevocably and unconditionally waives any objection to the laying of
venue of any action, suit or proceeding arising out of this Agreement in the
Bankruptcy Court, and irrevocably and unconditionally waives and agrees not to
plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum. In the
event that a court should find that subject matter jurisdiction is not available
in the Bankruptcy Court, Buyer and Seller hereby agree to submit any and all
disputes arising out of this Agreement to the jurisdiction and venue of the U.S.
District Court for the Northern District of Ohio.
15.6 SEVERABILITY. Any term or provision of the Transaction Documents
that is invalid or unenforceable in any jurisdiction, as to such jurisdiction,
shall be ineffective to the extent of such invalidity or unenforceability,
without rendering invalid or unenforceable the remaining terms and provisions of
the Transaction Documents or affecting the validity or enforceability of any of
the terms or provisions of the Transaction Documents in any other jurisdiction.
15.7 RELIANCE ON COUNSEL AND OTHER ADVISORS. Each party has consulted
such legal, financial, technical or other experts as it deems necessary or
desirable before entering into the Transaction Documents. Each party represents
and warrants that it has read, knows, understands and agrees with the terms and
conditions of the Transaction Documents.
15.8 EXHIBITS AND SCHEDULES. Each of the Exhibits and Schedules
referred to in the Transaction Documents and attached thereto is an integral
part of the Transaction Documents and is incorporated in the respective
Transaction Documents by this reference.
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15.9 RULES OF CONSTRUCTION. Unless the context otherwise requires: (a)
a term has the meaning assigned to it; (b) an accounting term not otherwise
defined has the meaning assigned to it in accordance with generally accepted
accounting principles; (c) references in the singular or to "him," "her," "it,"
"itself," or other like references, and references in the plural or the feminine
or masculine reference, as the case may be, shall also, when the context so
requires, be deemed to include the plural or singular, or the masculine or
feminine reference, as the case may be; (d) the use of the word "including"
shall mean including, without limitation, with regard to the items listed
thereafter; (e) provisions apply to successive events and transactions; (f)
references to Articles, Sections, Schedules and Exhibits in a Transaction
Document shall refer to Articles, Sections, Schedules and Exhibits of that
Transaction Document, unless otherwise specified; (g) the headings in the
Transaction Documents are for convenience and identification only and are not
intended to describe, interpret, define or limit the scope, extent, or intent of
the respective Transaction Documents or any provision thereof; (h) the
Transaction Documents shall be construed without regard to any presumption or
other rule requiring construction against the party that drafted and caused the
Transaction Documents to be drafted; (i) the use of the term "specific" in
relation to a subject means relating exclusively to that subject; and (j)
references to "commercially reasonable efforts" in the Transaction Documents
shall require the efforts that a prudent person desirous of achieving a
commercially reasonable result would use in similar circumstances to achieve a
result within a commercially reasonable time.
15.10 COUNTERPARTS. The Transaction Documents may be executed in
several counterparts, each of which shall be an original, but all of which shall
constitute one instrument.
SIGNATURE PAGE TO FOLLOW
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IN WITNESS WHEREOF, the parties hereto have duly caused this Agreement
to be executed as of the date first above written.
BINNINGS ACQUISITION CORP.
----------------------------------------
By:
--------------------------------
Name:
Title: Special Authorized Agent
BINNINGS BUILDING PRODUCTS, INC.
By:
--------------------------------
Name: Joseph Dominijanni
Title: Chief Executive Officer
AMERICAN ARCHITECTURAL PRODUCTS
CORPORATION
By:
--------------------------------
Name: Joseph Dominijanni
Title: Chief Executive Officer
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