EXHIBIT 1
ASSET PURCHASE AGREEMENT, dated September 2, 1999, between LEVCOR
INTERNATIONAL, INC. ("Levcor"), a Delaware corporation, and ANDREX INDUSTRIES
CORP. ("Andrex"), a New York corporation.
WHEREAS, Andrex desires to sell, and Levcor desires to purchase, certain
of Andrex's assets, all upon the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
FIRST: Closing; Sale and Purchase.
1.1 The Closing. The closing (the "Closing") of the transactions set forth
in Section 1.2 of this Agreement shall take place at 10:00 a.m., Eastern
Standard Time, on September 2, 1999, or at such other time and/or date as Levcor
and Andrex may agree, but for all purposes effective as of July 1, 1999. The
Closing shall take place at the offices of Rosenman & Colin LLP, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. (Hereinafter, such date is referred to as the
"Closing Date," such time on the Closing Date is referred to as the "Closing
Time," such offices are referred to as the "Closing Place," and Rosenman & Colin
LLP is referred to as "Counsel for Levcor").
1.2 Sale and Purchase of the Assets. At the Closing Time and at the
Closing Place:
(a) Andrex shall sell, convey, transfer, assign and deliver to
Levcor, and Levcor shall purchase from Andrex, the following: (i) Andrex's
inventory as of July 1, 1999 (the "Inventory") described in Schedule 1,
excluding any items sold by Andrex after July 1, 1999 and prior to the Closing;
(ii) Andrex's machinery and equipment (the "Machinery and Equipment") described
in Schedule 2, excluding any items sold by Andrex after the date hereof and
prior to the Closing; (iii) Andrex's furniture, fixtures and supplies as of July
1, 1999 (the "Furniture, Fixtures and Supplies") located at 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("1071 Avenue of the Americas") described in
Schedule 3, excluding any items sold by Andrex after July 1, 1999 and prior to
the Closing; (iv) Andrex's right, title and interest in and to Andrex's sales
orders booked as of July 1, 1999 (the "Sales Orders") described in Schedule 4,
excluding any Sales Orders fulfilled by Andrex after July 1, 1999 and prior to
the Closing; and (v) Andrex's right, title and interest in and to the trade name
"Andrex Knits" (the Inventory, the Machinery and Equipment, the Furniture,
Fixtures and Supplies, the Sales Orders and the trade name "Andrex Knits" being
herein collectively referred to as the "Assets").
(b) Levcor shall pay for the Assets pursuant to Sections 1.3 and
1.4.
(c) Levcor shall assume all of Andrex's obligations under the Sales
Orders.
(d) Except for the Sales Orders, Andrex acknowledges and agrees that
Levcor has not agreed to pay, shall not be required to assume and shall have no
liability or obligation of any kind or nature whatsoever with respect to any and
all debts, liabilities, taxes or obligations of
or incurred by Andrex, whether fixed, unliquidated, absolute, contingent or
otherwise, asserted or unasserted, known or unknown. Except for the Sales
Orders, Andrex shall be solely responsible for performance and payment in full
of all liabilities and obligations of Andrex.
(e) Andrex shall pay to Levcor at the Closing a cash payment equal
to: (i) 15% of the proceeds of Andrex's sales of any Inventory sold during the
period July 1, 1999 to the Closing pursuant to the Sales Orders; (ii) the sales
proceeds of any Inventory sold during the period July 1, 1999 to the Closing
other than pursuant to the Sales Orders, up to an amount equal to the "July 1
Inventory Value" of such Inventory; and (iii) 100% of the proceeds of any
Furniture, Fixtures and Supplies sold during the period July 1, 1999 to the
Closing. Andrex shall not be required to pay Levcor any of the proceeds of any
Machinery and Equipment sold during the period July 1, 1999 to the Closing.
1.3 Purchase Price. Levcor shall purchase the Assets for an aggregate
purchase price (the "Purchase Price") equal to the "Cash Payment", the principal
amount of "Promissory Note 1" and the principal amount of "Promissory Note 2",
which principal amount is subject to adjustment pursuant to Section 1.5. The
Purchase Price shall be paid by the delivery: (a) at the Closing of (i) cash
(the "Cash Payment") in the amount equal to the amount borrowed by Levcor from
CIT Group/Commercial Services, Inc. ("CIT") against the value of the Machinery
and Equipment as appraised by CIT (the "Appraised Value"), and (ii) a promissory
note ("Promissory Note 1"), substantially in the form attached hereto as Exhibit
A, in the principal amount equal to the difference between the Appraised Value
of the Machinery and Equipment and the Cash Payment; and (b) promptly following
the valuation of the Inventory provided for in Section 1.4 of a promissory note
("Promissory Note 2"), substantially in the form attached hereto as Exhibit B,
in the principal amount equal to the book value of the Inventory as of July 1,
1999 (the "July 1 Inventory Value"), other than any Inventory referred to in
Section 1.2(e). Principal and interest on Promissory Note 1 shall be paid in
accordance with Section 9.2, principal and interest on Promissory Note 2 shall
be paid in accordance with Section 9.3, and Promissory Note 1 shall be secured
in accordance with Article SECOND.
1.4 Inventory Valuation.
(a) Immediately subsequent to the date hereof, Andrex shall promptly
prepare a schedule of the book value of the Inventory as of July 1, 1999 (the
"July 1 Inventory Schedule"), determined in accordance with the accounting
procedures set forth in Schedule 5. Levcor's representatives shall be permitted
to review all work papers and other appropriate information utilized in
preparing the July 1 Inventory Schedule. Andrex and Levcor shall cooperate with
each other to complete and agree upon the July 1 Inventory Schedule no later
than 30 days following the Closing Date. In the event the parties cannot agree
upon the July 1 Inventory Schedule within the 30-day period, Andrex and Levcor
shall select a mutually acceptable, neutral and qualified certified public
accountant from a nationally recognized accounting firm to resolve the dispute.
All relevant documentation and information shall be submitted to the neutral
accountant who shall resolve the dispute within 10 days after submission of the
dispute and supporting documentation. The decision of the neutral accountant
shall be final and binding upon Andrex and Levcor, each of whom shall bear
one-half of the cost and expense of the neutral accountant.
(b) Upon verification of the July 1 Inventory Schedule, either by
agreement of Andrex and Levcor or by the neutral accountant, as the case may be,
Levcor shall issue Promissory Note 2.
1.5 Post-Closing Adjustment.
(a) On October 1, 1999, January 1, 2000, April 1, 2000, July 1,
2000, October 1, 2000 and January 1, 2001 (each, an "Adjustment Date"), the book
value of the Inventory as of such Adjustment Date shall be determined, based on
the aging of the Inventory as agreed upon by Levcor and Andrex (each,
respectively, an "Inventory Adjustment"). The principal amount of Promissory
Note 2, and accordingly the Purchase Price, shall be reduced based upon any
reduction in the book value of the Inventory since July 1, 1999 or the prior
Adjustment Date.
(b) Andrex and Levcor shall cooperate with each other to agree upon
the Inventory Adjustment. In the event the parties cannot agree upon an
Inventory Adjustment, Andrex and Levcor shall select a mutually acceptable,
neutral and qualified certified public accountant from a nationally recognized
accounting firm to resolve the dispute. All relevant documentation and
information shall be submitted to the neutral accountant who shall resolve the
dispute within 10 days after submission of the dispute and supporting
documentation. The decision of the neutral accountant shall be final and binding
upon Andrex and Levcor, each of whom shall bear one-half of the cost and expense
of the neutral accountant.
(c) To the extent there is an Inventory Adjustment, Levcor agrees to
substitute a new promissory note for Promissory Note 2 to reflect the reduced
principal amount.
SECOND: Security Interest.
2.1 Grant. As collateral security for the prompt and complete payment of
interest on, and principal of, Promissory Note 1, Levcor hereby grants to Andrex
a security interest in the Machinery and Equipment, junior only to CIT's first
priority security interest in the Machinery and Equipment.
2.2 Rights Under Uniform Commercial Code. In addition to all other rights
and remedies under this Agreement and Promissory Note 1, Andrex shall have all
of the rights and remedies of a secured party under the Uniform Commercial Code
("UCC"), as in effect from time to time in the State of North Carolina.
THIRD: Representations and Warranties of Andrex. Andrex represents and
warrants to Levcor that:
3.1 Organization; Good Standing. Andrex is, and at the Closing Time shall
be, a corporation duly organized, validly existing and in good standing under
the laws of the State of New York.
3.2 Authority. The Board of Directors of Andrex has authorized the
execution and delivery by Andrex of this Agreement and all other documents
contemplated hereby and the consummation of the transactions contemplated
hereby. Andrex has the power and authority to execute and deliver this Agreement
and all other documents contemplated hereby, to
consummate the transactions contemplated hereby and to take all other actions
required to be taken by it pursuant to the provisions hereof; and this Agreement
is, and all other documents contemplated hereby shall be, valid and binding upon
Andrex and enforceable against Andrex in accordance with their respective terms.
3.3 No Default; Non-Contravention. Neither the execution and delivery of
this Agreement or any other document contemplated hereby nor the consummation of
the transactions contemplated hereby (a) shall constitute any violation or
breach of (i) the Certificate of Incorporation or the By-Laws of Andrex, (ii)
any provision of any contract, agreement, instrument, judicial or administrative
order or decree to which Andrex is a party or by which any of the Assets may be
affected or secured, or (iii) any order, writ, injunction, decree, statute, rule
or regulation applicable to the Assets or Andrex; or (b) shall result in the
creation of any mortgage, pledge, lien, claim, security interest, conditional
sales agreement, rights of a third party, charge, encumbrance or restriction of
any kind and nature on any of the Assets.
3.4 Consents and Approvals. No consent, authorization, order or approval
of, or filing or registration with, any governmental authority or other person
is required for the execution and delivery by Andrex of this Agreement or any
other document contemplated hereby or the consummation by Andrex of the
transactions contemplated hereby.
3.5 Sales Orders. The Sales Orders arose from bona fide transactions.
3.6 Title; Liens. Andrex has, and at the Closing Time shall have, good
title to and the requisite power to sell all of the Assets, free and clear of
all mortgages, pledges, liens, claims, security interests, conditional sales
agreements, rights of third parties, charges, encumbrances or restrictions of
every kind and nature.
FOURTH: Representations and Warranties of Levcor. Levcor represents and
warrants to Andrex that:
4.1 Organization and Good Standing. Levcor is, and at the Closing Time
shall be, a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware.
4.2 Authority. The Board of Directors of Levcor has authorized the
execution and delivery by Levcor of this Agreement and all other documents
contemplated hereby and the consummation of the transactions contemplated
hereby. Levcor has the power and authority to execute and deliver this Agreement
and all other documents contemplated hereby, to consummate the transactions
contemplated hereby and to take all other actions required to be taken by it
pursuant to the provisions hereof; and this Agreement is, and all other
documents contemplated hereby shall be, valid and binding upon Levcor and
enforceable against Levcor in accordance with their respective terms.
4.3 No Default; Non-Contravention. Neither the execution and delivery of
this Agreement or any other document contemplated hereby nor the consummation of
the transactions contemplated hereby shall constitute any violation or breach of
the Certificate of Incorporation or the By-Laws of Levcor or any provision of
any contract, agreement, instrument, judicial or administrative order or decree
to which Levcor is a party.
4.4 Consents and Approvals. No consent, authorization, order or approval
of, or filing or registration with, any governmental authority or other person
is required for the execution and delivery by Levcor of this Agreement or any
other document contemplated hereby or the consummation by Levcor of the
transactions contemplated hereby.
FIFTH: Pre-Closing Covenants of Andrex. Andrex agrees that prior to the
Closing Time:
5.1 Conduct of Business. Andrex shall (a) continue to conduct its
business, maintain its assets, carry on its business practices and keep its
books of account, records and files in the usual and ordinary course and in the
same manner as heretofore, subject, however, to any winding down of Andrex's
business in anticipation of the transactions contemplated by this Agreement, (b)
use its best efforts to preserve its business organization intact and preserve
the goodwill of its suppliers and customers and others having business relations
with it, (c) pay and perform all of its liabilities and obligations as and when
due and all contracts and leases to which it is a party in accordance with the
terms and provisions thereof, (d) comply in all respects with all laws, rules,
regulations and orders that may be applicable to it and its business, and (e)
not sell or dispose of any of its rights or assets except for: (i) the sale of
Inventory in the ordinary and regular course of its business; (ii) the sale of
the Machinery and Equipment; or (iii) the sale of the Furniture, Fixtures and
Supplies.
5.2 Access to Andrex's Business. Levcor and its representatives shall
during normal business hours on reasonable prior notice be permitted reasonable
access to, and shall be permitted at Levcor's expense to make copies of or
abstracts from, all of the records that relate to the Assets and shall have
reasonable access to the premises and physical properties of Andrex as Levcor
deems necessary or advisable for purposes of consummating the transactions
contemplated hereby.
5.3 Release of Liens. Prior to or concurrent with the Closing, Andrex
shall obtain the release of all mortgages, pledges, liens, claims, security
interests, conditional sales agreements, rights of third parties, charges,
encumbrances or restrictions of every kind and nature on the Assets.
5.4 Best Efforts. Andrex agrees that, subsequent to the date hereof and
prior to the Closing Time, it shall use its best efforts to effectuate the
transactions contemplated hereby and to fulfill Andrex's obligations hereunder.
SIXTH: Pre-Closing Covenant of Levcor. Levcor agrees that, subsequent to
the date hereof and prior to the Closing Time, it shall use its best efforts to
effectuate the transactions contemplated hereby and to fulfill Levcor's
obligations hereunder.
SEVENTH: Conditions to Levcor's Obligations. All obligations of Levcor
under this Agreement are subject to the fulfillment of each of the following
conditions, any or all of which may be waived in whole or in part by Levcor, in
its sole discretion:
7.1 Representations and Warranties True at the Closing Date. The
representations and warranties of Andrex contained in Article THIRD hereof shall
be true at and as of the Closing Time as though such representations and
warranties were made at and as of such time.
7.2 Andrex's Performance. Andrex shall have performed and complied with
all covenants, agreements and conditions on its part required by this Agreement
to be performed or complied with by it prior to or at the Closing Time.
7.3 Instruments of Transfer. Andrex shall have delivered to Levcor all
conveyances, covenants, assignments, bills of sale, warranty deeds,
confirmations, powers of attorney, approvals, consents, transfers of title and
any and all further instruments as may be necessary, expedient or proper or
requested by Levcor in order to complete any and all conveyances, transfers and
assignments herein provided for and to convey to Levcor such title to the
Assets.
7.4 Release of Liens. Andrex shall have obtained the release of all
mortgages, pledges, liens, claims, security interests, conditional sales
agreements, rights of third parties, charges, encumbrances or restrictions of
every kind and nature on the Assets.
7.5 Legal Matters. All actions, proceedings, instruments and documents
required to carry out this Agreement, or incidental hereto, and all other
relevant legal matters, shall be satisfactory in all respects to Counsel for
Levcor.
7.6 Resale Certificate. Levcor shall supply to Andrex a resale
certificate, substantially in the form attached hereto as Exhibit D.
EIGHTH: Conditions to Andrex's Obligations. All obligations of Andrex
under this Agreement are subject to the fulfillment of each of the following
conditions, any or all of which may be waived in whole or in part by Andrex:
8.1 Representations and Warranties True at the Closing Date. The
representations and warranties of Levcor contained in Article FOURTH hereof
shall be true at and as of the Closing Time as though such representations and
warranties were made at and as of such time.
8.2 Levcor's Performance. Levcor shall have performed and complied with
all covenants, agreements and conditions on its part required by this Agreement
to be performed or complied with by it prior to or at the Closing Time.
8.3 Minimum Amount of Cash Payment. The Cash Payment shall be in an amount
equal to not less than 70% of the Appraised Value of the Machinery and
Equipment.
8.4 Promissory Notes. Levcor shall have executed and delivered Promissory
Note 1 and Promissory Note 2.
8.5 UCC Financing Statement. Levcor shall, on or prior to the Closing
Date, prepare, execute and deliver to Andrex a UCC financing statement,
substantially in the form attached hereto as Exhibit C, for filing with such
offices as Andrex may request to perfect the security interest granted in
Section 2.1.
8.6 Legal Matters. All actions, proceedings, instruments and documents
required to carry out this Agreement, or incidental hereto, and all other
relevant legal matters, shall be satisfactory in all respects to counsel for
Andrex.
NINTH: Post-Closing Covenants of Andrex and Levcor. Subsequent to the
Closing Date:
9.1 Commercially Reasonable Efforts. Levcor shall use commercially
reasonable efforts to sell and dispose of the Machinery and Equipment and the
Inventory.
9.2 Machinery and Equipment.
(a) Levcor shall pay any proceeds of sale of the Machinery and
Equipment (the "Machinery and Equipment Proceeds"), as and when received, first
to CIT, to repay in full the amount borrowed by Levcor from CIT against the
value of the Machinery and Equipment (together with interest thereon), and then
to Andrex on account of Promissory Note 1, but regardless of the amount of
principal and interest due on Promissory Note 1. The amount of principal and
interest due on Promissory Note 1 will be reduced by the amount of any such
proceeds that Levcor pays to Andrex, and Levcor may at its discretion reissue
Promissory Note 1 to reflect any such reductions.
(b) Levcor must get the consent of Andrex to sell any of the
Machinery and Equipment at a price that is below the portion of the Appraised
Value that is attributable to that Machinery and Equipment.
9.3 Inventory.
(a) Within ten days of the end of each month, Levcor shall pay to
Andrex on account of Promissory Note 2, but regardless of the amount of
principal and interest due on Promissory Note 2, an amount equal to: (i) 85% of
the proceeds of Levcor's sales during such month of any Inventory sold pursuant
to the Sales Orders; and (ii) the portion of the proceeds of Levcor's sales
during such month of any Inventory sold, other than pursuant to the Sales
Orders, equal to the July 1 Inventory Value as reduced by any Inventory
Adjustment as of an Adjustment Date prior to the date of such sale (the proceeds
referred to in clause (i) and the portion of the proceeds referred to in clause
(ii) being herein collectively referred to as the "Inventory Proceeds"). The
amount of principal and interest due on Promissory Note 2 will be reduced by the
amount of any such proceeds that Levcor pays to Andrex, and Levcor may at its
discretion reissue Promissory Note 2 to reflect any such reductions.
(b) Levcor must get the consent of Andrex to sell any of the
Inventory at a price that is below the portion of the July 1 Inventory Value
that is attributable to that Inventory, as reduced by any Inventory Adjustment
as of an Adjustment Date prior to the date of such sale.
9.4 Conversion of Piece Goods and Work in Process.
(a) Levcor shall convert substantially all piece goods and work in
process included in the Inventory into finished goods and agrees to use all
commercially reasonable efforts to sell all such finished goods and all finished
goods included in the Inventory during the 180 days following the Closing.
(b) Andrex shall permit Levcor to keep the Machinery and Equipment
on its premises during the time Levcor is converting the piece goods and work in
process included in the Inventory into finished goods.
9.5 Employees. Set forth on Schedule 6 is a list of the name, position and
salary of certain current employees of Andrex (the "Employees"). Immediately
subsequent to the Closing, Andrex shall terminate the employment of the
Employees. Andrex shall use its reasonable efforts to assist Levcor in hiring,
on an at will basis and at the respective salaries set forth on Schedule 6, the
Employees. Andrex acknowledges that Levcor may, in its sole discretion, alter
the terms and conditions of employment (including, without limitation,
compensation) of the Employees at any time after the Closing. Andrex shall be
solely liable for termination, severance and other benefits of all of its
employees, including the Employees, with respect to the period prior to the
Closing, and Levcor shall have no liability therefor. Levcor shall be solely
liable for termination, severance and other benefits of the Employees that it
hires with respect to the period subsequent to the Closing, and Andrex shall
have no liability therefor.
9.6 Employment Agreements.
(a) If at any time Andrex terminates its medical plan for its
employees prior to the payment in full of Promissory Note 1 and Promissory Note
2, then: (a) Andrex shall terminate the employment of Xxxxxxx Xxxxxxxxxx
("Xxxxxxxxxx"); and (b) Levcor shall employ Gottdiener pursuant to that certain
Letter Agreement, dated as of September 2, 1999, between Levcor and Andrex (the
"Letter Agreement") and the employment agreement between Levcor and Gottdiener,
substantially in the form attached thereto as Exhibit A.
(b) If at any time Andrex terminates its medical plan for its
employees prior to the payment in full of Promissory Note 1 and Promissory Note
2, and prior to April 1, 2000, then: (a) Andrex shall terminate the employment
of Xxxxx Xxxxx Schrifrin ("Schrifrin"); and (b) Levcor shall employ Schrifrin
pursuant to the Letter Agreement and the employment agreement between Levcor and
Schrifrin, substantially in the form attached thereto as Exhibit B.
9.7 Change in Name. Andrex agrees that immediately subsequent to the
Closing, Andrex shall not use the name "Andrex Industries" for trade purposes
related to the apparel industry, but may use the name "Andrex Industries" for
other trade purposes and may retain "Andrex Industries" as its corporate name.
9.8 Lease of 1071 Avenue of the Americas. Levcor shall reimburse Andrex
for any payments required to be made by Andrex for its current rent obligations
for 1071 Avenue of the Americas, but shall not assume Andrex's lease of 1071
Avenue of the Americas.
TENTH: Non-Competition. Andrex agrees that, for a period of three years
after the Closing Date, Andrex shall not, directly or indirectly, engage or
participate, anywhere in the United States of America, as an owner, partner,
shareholder, member, employee, director, consultant or otherwise, in any
business which is engaged in textile converting and processing for the apparel
industry. Andrex acknowledges that the territorial, time and scope limitations
set forth in this Article TENTH have been specifically negotiated by
sophisticated commercial parties and agrees that the limitations are reasonable
under the circumstances of the transactions
contemplated hereby. In the event that any such territorial, time or scope
limitation is deemed to be unreasonable by a court of competent jurisdiction,
Levcor and Andrex agree to the reduction of any of said territorial, time or
scope limitations to such an area, period or scope as said court shall deem
reasonable under the circumstances. If Levcor: (a) defaults in any material
respect on its obligations under this Agreement; or (b) declares bankruptcy,
then this Article TENTH shall not be enforceable by Levcor against Andrex and
the provisions of this Article TENTH shall terminate and be of no further force
or effect.
ELEVENTH: Indemnification.
11.1 Indemnification by Andrex. Andrex agrees to indemnify and hold
harmless Levcor from and against, and to reimburse Levcor with respect to, any
and all loss, damage, liability, cost and expense, including attorneys' fees,
incurred by Levcor by reason of or arising out of or in connection with (a) a
breach of any representation or warranty of Andrex contained in Article THIRD of
this Agreement, (b) the failure of Andrex to perform any covenant or agreement
required by this Agreement to be performed by it, (c) the assertion by any third
party of any liability, obligation, contract, lease, agreement or other
commitment or state of facts which, if it existed, would constitute a breach of
a representation or warranty contained in Article THIRD of this Agreement, or
(d) any liability or obligation of Andrex other than the Sales Orders.
11.2 Indemnification by Levcor. Levcor agrees to indemnify and hold
harmless Andrex from and against, and to reimburse Andrex with respect to, any
and all loss, damage, liability, cost and expense, including attorneys' fees,
incurred by Andrex by reason of or arising out of or in connection with (a) a
breach of any representation or warranty of Levcor contained in Article FOURTH
of this Agreement, (b) the failure of Levcor to perform any covenant or
agreement required by this Agreement to be performed by it, or (c) Levcor's
operation of the business previously conducted by Andrex subsequent to the
Closing Date.
11.3 Indemnification Procedures. A party entitled to recover an
indemnification payment pursuant to this Article ELEVENTH ("Indemnified Party")
(a) shall give the party required to make such payment ("Indemnifying Party")
prompt notice of any claim, demand, suit, proceeding or action ("Claim") by any
person against the Indemnified Party, (b) shall consult with the Indemnifying
Party as to the procedure to be followed in defending, settling, or compromising
the Claim, (c) shall not consent to any settlement or compromise of the Claim
without the written consent of the Indemnifying Party (which consent, unless the
Indemnifying Party has elected to assume the exclusive defense of such Claim,
shall not be unreasonably withheld or delayed), and (d) shall permit the
Indemnifying Party, if it so elects, to assume the exclusive defense of such
Claim, all at the cost and expense of the Indemnifying Party. If the Indemnified
Party shall (i) fail to notify or to consult with the Indemnifying Party with
respect to any Claim in accordance with subparagraph (a) or (b) above or (ii)
consent to the settlement or compromise of any Claim without having received the
written consent of the Indemnifying Party (unless, if the Indemnifying Party has
not elected to assume the exclusive defense of such Claim, the consent of the
Indemnifying Party is unreasonably withheld or delayed), the Indemnifying Party
shall be relieved of its indemnification obligation with respect to such Claim.
If the Indemnifying Party shall elect to assume the exclusive defense of any
Claim, it shall notify the Indemnified Party in writing of such election, and
the Indemnifying Party shall not be liable
hereunder for any fees or expenses of the Indemnified Party's counsel relating
to such Claim after the date of delivery to the Indemnified Party of such notice
of election. In the event of such election, the Indemnified Party shall
cooperate with the Indemnifying Party and provide it with access to all books
and records of the Indemnified Party relevant to the Claim. The Indemnifying
Party shall not compromise or settle any Claim without the written consent of
the Indemnified Party (which consent shall not be unreasonably withheld or
delayed) if the relief provided is other than monetary damages and such relief
would materially and adversely affect the Indemnified Party. Notwithstanding the
foregoing, the party which defends any Claim shall, to the extent required by
applicable insurance policies, share or give control thereof to any insurer with
respect to such Claim.
TWELFTH: Miscellaneous.
12.1 Further Assurances. Andrex agrees that it shall, at any time and from
time to time after the Closing Date, upon the request of Levcor, do, execute,
acknowledge and deliver, or shall cause to be done, executed, acknowledged and
delivered, all such further acts, assignments, transfers, conveyances, powers of
attorney and assurances as may be required for the better assigning,
transferring, granting, conveying, assuring, and confirming to Levcor, or to its
successors and assigns, or for the aiding, assisting, collecting and reducing to
possession any or all of the Assets to be assigned to Levcor as provided herein,
and any or all obligations of Andrex hereunder.
12.2 Survival of Representations. All statements, certifications,
indemnifications, representations and warranties made herein by the parties to
this Agreement, and their respective obligations to be performed pursuant to the
terms hereof, shall survive the Closing Time.
12.3 Notices. Address and Notice. Any notice, demand or request required
or permitted to be given or made to a party shall be in writing and shall be
deemed given or made when delivered, sent by facsimile with confirmation of
receipt, or three days after being mailed by certified or registered mail,
postage prepaid and return receipt requested, to such party as follows:
To Levcor: With a copy to:
Levcor International, Inc. Rosenman & Colin LLP
1071 Avenue of the Americas 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx Attn: Xxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000 Fax: (000) 000-0000
To Andrex: With a copy to:
Andrex Industries Corp. Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
1071 Avenue of the Americas 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxxx Attn: Xxxxxxx Xxxxxx, Esq.
Fax: (000) 000-0000 Fax: (000) 000-0000
Any party may designate another address or person for receipt of notices
under this Agreement by giving notice to the other parties in accordance with
this Section.
12.4 No Modification Except in Writing. This Agreement may not be changed,
modified or amended except by a writing signed by the party to be charged and
then only to the extent therein set forth. This Agreement may not be discharged
except by performance in accordance with its terms or by a writing signed by the
party to be charged.
12.5 Entire Agreement. This Agreement, including the Schedules and
Exhibits hereto and all other documents to be delivered in connection herewith,
sets forth the entire agreement and understanding between the parties as to the
subject matter hereof and merges and supersedes all prior discussions,
agreements and understandings of every kind and nature among them, and no party
hereto shall be bound by any condition, definition, warranty or representation
other than as expressly provided for in this Agreement or as may be on a date
subsequent to the date hereof duly set forth in writing signed by the party
hereto which is to be bound thereby.
12.6 Severability. If any provision of this Agreement or the application
of any provision hereof to any person or circumstances is held invalid, the
remainder of this Agreement and the application of such provision to other
persons or circumstances shall not be affected unless the provision held invalid
shall substantially impair the benefits of the remaining portions of this
Agreement.
12.7 Assignment. This Agreement may not be assigned by Andrex except with
the prior written consent of Levcor, but may be assigned by Levcor. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
12.8 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to contracts made
and to be performed wholly within said State, without giving effect to the
conflict of laws principles thereof.
12.9 Captions. The captions appearing in this Agreement are inserted only
as a matter of convenience and for reference and in no way define, limit or
describe the scope and intent of this Agreement or any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
LEVCOR INTERNATIONAL, INC.
By: Xxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman and President
ANDREX INDUSTRIES CORP.
By: Xxxxxxx Xxxxxxxxxx
--------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: President
