Exhibit 2.3
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SECOND AMENDMENT TO
ASSET PURCHASE AGREEMENT
by and among
EDS INFORMATION SERVICES L.L.C.,
Buyer,
ELECTRONIC DATA SYSTEMS CORPORATION,
Buyer Parent,
SABRE INC.,
Seller,
and
SABRE HOLDINGS CORPORATION,
Seller Parent
Dated July 2, 2001
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SECOND AMENDMENT TO ASSET PURCHASE AGREEMENT
This SECOND AMENDMENT TO ASSET PURCHASE AGREEMENT (this "SECOND
AMENDMENT") is made and entered into on July 2, 2001, effective as of 12:01
a.m. Central Time on July 1, 2001 and immediately after the First Amendment
to Asset Purchase Agreement of even date herewith (the "FIRST AMENDMENT"), by
and among EDS INFORMATION SERVICES L.L.C., a Delaware limited liability
company (the "BUYER"), ELECTRONIC DATA SYSTEMS CORPORATION, a Delaware
corporation (the "BUYER PARENT"), SABRE INC., a Delaware corporation ("SABRE"
or the "SELLER"), and SABRE HOLDINGS CORPORATION, a Delaware corporation (the
"SELLER PARENT").
WHEREAS, Buyer, Buyer Parent, Seller and Seller Parent are parties
to an Asset Purchase Agreement, dated as of March 14, 2001 (the "ORIGINAL
AGREEMENT"), as amended by the First Amendment;
WHEREAS, this Second Amendment shall be effective immediately after
the effectiveness of the First Amendment;
WHEREAS, the parties hereto desire to amend certain portions of the
Original Agreement, as amended by the First Amendment, as set forth in this
Second Amendment.
NOW, THEREFORE, in consideration of the mutual agreements contained
herein and for other good and valuable consideration described herein, the
Buyer, the Buyer Parent, the Seller and the Seller Parent agree as follows:
ARTICLE I
The terms and provisions of the Original Agreement and First
Amendment shall continue in full force and effect unless expressly amended by
this Second Amendment.
ARTICLE II
The amendments to the Agreement are as follows:
A. PURCHASE PRICE
1. Sections 3.1(a) and (b) of the Agreement are hereby deleted
in their entirety and replaced with the following:
"(a) The aggregate purchase price for the Transferred Assets
shall be (i) $660,772,000 in cash payable at the Closing (the
"CLOSING CASH PAYMENT"), (ii) subject to the conditions in Section
3.2, deferred premium payments of up to $25,000,000 in the
aggregate, calculated and payable in accordance with Section 3.2,
and (iii) the assumption
by the Buyer and the Buying Subsidiaries of the Assumed Liabilities
(collectively, the "PURCHASE PRICE"). Interest shall accrue on the
Closing Cash Payment commencing at the Effective Time until the
Closing Date at an annual rate of 3.75%. All accrued interest shall
be paid at Closing in the same manner as the Closing Cash Payment.
Portions of the Closing Cash Payment shall be paid in currencies
other than U.S. dollars, as set forth in Section 3.1(a) of the
Seller Disclosure Schedule at the foreign exchange rates set forth
therein (the "FOREIGN CURRENCY PAYMENTS"), and the amount of the
Closing Cash Payment required to be paid in U.S. dollars shall equal
$651,236,316.
(b) On the Closing Date, except for the Foreign Currency
Payments, the Buyer Parent will deliver or cause to be delivered on
behalf of the Buyer and the Buying Subsidiaries the Closing Cash
Payment to the Seller by wire transfer of immediately available
federal funds to such bank account or accounts as shall be
designated by the Seller to the Buyer Parent prior to the Closing.
On the Closing Date, Buyer Parent (or, if required by applicable
local Law, the Buyer or the applicable Buying Subsidiary) will
deliver or cause to be delivered on behalf of the Buyer and the
Buying Subsidiaries the Foreign Currency Payments to the Seller (or,
if required by applicable local Law, the applicable Selling
Subsidiary) by wire transfer of immediately available funds (in the
applicable local currency) to such bank account or accounts as shall
be designated by the Seller (or the applicable Selling Subsidiary,
as the case may be) to the Buyer Parent (or the Buyer or the
applicable Buying Subsidiary, as the case may be) prior to the
Closing."
2. Sections 3.4(a) and (b) of the Agreement are hereby deleted in
their entirety and replaced with the following:
"(a) The Purchase Price shall initially be allocated among the
Transferred Assets in the manner set forth in Exhibit 3.4 (the
"INITIAL AGREED ALLOCATION"), and the allocation of the Purchase
Price among the Bills of Sale to the Buyer and the appropriate
Buying Subsidiaries designated by the Buyer, and the determination
of the amount of Transfer Taxes required to be paid pursuant to
Section 3.3(a) by the Buyer Parent to the Seller prior to Closing,
shall be in accordance with the Initial Agreed Allocation. In the
event that the Buyer or the Buyer Parent obtains an appraisal of any
of the Transferred Assets that is inconsistent with the Initial
Agreed Allocation and furnishes the Seller with a copy of such
appraisal and any supporting documentation within 90 days of the
Closing Date, the Buyer Parent and the Seller shall use reasonable
efforts to reach agreement within 120 days of the Closing Date on an
allocation among the Transferred Assets for tax purposes which is
not inconsistent with such appraisal. If the Buyer and the Buyer
Parent do not obtain an appraisal of any of the Transferred Assets
that is inconsistent with the Initial Agreed Allocation, or do not
furnish the Seller with a copy of such an appraisal and any
supporting documentation, within 90 days of the Closing Date, the
Initial Agreed Allocation shall be the "Final Agreed Allocation." If
the parties reach agreement within 120 days of the Closing Date as
to the allocation of the Purchase Price among the Transferred Assets
for tax purposes which is not inconsistent with such appraisal, such
agreed allocation shall become the "Final Agreed Allocation".
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(b) The Seller and the Buyer agree that they will adopt and
utilize the Final Agreed Allocation for all tax purposes, including
in preparation of all income tax returns (including IRS Form 8594
and any supplements thereto); franchise tax returns, or Tax Returns
with respect to Transfer Taxes filed by them and that they will not
voluntarily take any tax position inconsistent therewith, or on any
such income tax returns, franchise tax returns, or Tax Return with
respect to Transfer Taxes or in any legal or administrative
proceeding or otherwise; provided, however, that the Seller will not
be required to amend any Tax Return with respect to Transfer Taxes
based on the Initial Agreed Allocation filed by the Seller prior to
agreement on an allocation other than the Initial Agreed Allocation
or to file Tax Returns with respect to Transfer Taxes subsequent to
such agreement that are inconsistent with any Tax Return with
respect to Transfer Taxes filed by the Seller based on the Initial
Agreed Allocation prior to agreement on an allocation other than the
Initial Agreed Allocation. Neither the Buyer nor the Seller will
assert that the Final Agreed Allocation were not separately
bargained for at arm's-length and in good faith. Notwithstanding the
foregoing, if the Buyer or the Buyer Parent obtains an appraisal of
any of the Transferred Assets that is inconsistent with the Initial
Agreed Allocation and furnishes the Seller with a copy of such
appraisal and any supporting documentation within 90 days of the
Closing Date and the Buyer Parent and the Seller are unable to reach
agreement within 120 days of the Closing Date on an allocation among
the Transferred Assets for tax purposes which is not inconsistent
with such appraisal, each party shall be entitled to unilaterally
adopt its own positions regarding the allocation of the Purchase
Price among the Transferred Assets. In any event, each party hereto
agrees to prepare and timely file all applicable Internal Revenue
Service and applicable State tax forms (including IRS Form 8594 and
any required supplements thereto), to cooperate (subject to the
preceding sentence) with the other party in the preparation of such
forms, and to furnish the other party with a copy of such forms
prepared in draft, within a reasonable period before the filing due
date thereof. The Buyer and the Seller recognize that the Purchase
Price does not include buyer's acquisition expenses and that the
Buyer will allocate such expenses appropriately."
3. Exhibit 3.4 attached to this Second Amendment is hereby added
as Exhibit 3.4 to the Agreement.
B. ALIGNMENT OF INTERESTS AGREEMENT MATTERS
1. The first sentence of Section 3.2(a) of the Agreement is
hereby amended by deleting ", (y) the Seller has paid in full to the Buyer the
portion of the "Make Whole Payment" (as defined in the Alignment of Interests
Agreement) required to be paid pursuant to the Alignment of Interests Agreement
(including, if applicable, the entire Make Whole Payment) or (z)" and replacing
it with "or (y)".
2. The first sentence of Section 3.2(b) of the Agreement is
hereby amended by deleting ", (y) the Seller has paid in full to the Buyer the
portion of the Make Whole Payment required to be paid pursuant to the Alignment
of Interests Agreement (including, if applicable, the entire Make Whole Payment)
or (z)" and replacing it with "or (y)".
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3. The second sentence of Section 3.2(d) of the Agreement is
hereby amended by deleting ", the Seller and the Seller Parent have no further
obligations under Article II of the Alignment of Interests Agreement,".
4. Section 3.2(i) of the Agreement is hereby deleted in its
entirety and replaced with the following:
"Notwithstanding any other provision of this Agreement or the
Contingent Note, to the extent that the First Deferred Premium Payment
Amount and/or the Second Deferred Premium Payment Amount shall have
been determined prior to the date upon which the Fixed Amount is due
under the Contingent Note, such determined amount(s) shall be set off
against the Fixed Amount under the Contingent Note."
5. Section 11.4(a) of the Agreement is hereby deleted in its
entirety and replaced with the following:
"No indemnification shall be required to be made by the Seller or the
Seller Parent under Section 11.2(a)(i) unless the aggregate amount of
Damages indemnified against under such Section exceeds $4,000,000 in
the aggregate and indemnification shall be made by the Seller and/or
the Seller Parent only to the extent of such excess over $4,000,000. In
no event will the aggregate liability of the Seller and the Seller
Parent for indemnification under Sections 11.2(a)(i), 11.2(a)(ii) and
11.2(a)(vi) exceed $200,000,000."
C. TAX MATTERS
1. The portion of Section 3.3(a) of the Agreement preceding
Subsection 3.3(a)(i) is hereby deleted in its entirety and replaced with the
following:
"(a) Responsibility for all sales taxes, use taxes, gross
receipts taxes, value added taxes, goods and services taxes,
provincial sales taxes, excise taxes, real estate transfer taxes,
recordation taxes, documentary taxes, stamp taxes, and other similar
taxes, charges, fees, levies, or other assessments (including any
interest, penalties or additional amounts attributable thereto
imposed by any United States federal, state, local or foreign
governmental authority) arising from or in connection with the
transfers by the Seller and the Selling Subsidiaries of the
Transferred Assets (including Deferred Transferred Assets) and the
Transferred Business to the Buyer, the Buying Subsidiaries and their
assignees pursuant to this Agreement and the other Transaction
Documents ("TRANSFER TAXES") shall be as follows:"
D. EFFECTIVE TIME
1. The lead-in paragraph of Section 1.1 of the Agreement is
hereby amended by adding the phrase ", but effective as of the Effective Time
(as defined in Section 13.10)" immediately after "(as defined in Section 4.1)".
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2. Each reference to "12:01 a.m. Central Time on the Closing
Date" or "12:01 a.m. on the Closing Date" in the Agreement is hereby deleted and
replaced with "the Effective Time".
3. The lead-in paragraph of Section 2.1 of the Agreement is
hereby amended by adding the phrase ", but effective as of the Effective Time"
immediately after "Upon the terms and subject to the conditions of this
Agreement, at the Closing".
4. Each reference to "on or after the Closing Date" in Section
2.2(b) and Section 3.3(d)(i) are hereby deleted and replaced with "at or after
the Effective Time".
5. Each reference to "Closing Date" in Sections 2.2(e) and (f),
Section 3.2(c)(i), Section 3.3(d)(ii), and in the first sentence of Section
7.8(c) of the Agreement is hereby deleted and replaced with "Effective Time".
6. Each reference to "Closing" in Section 2.2(d) and the last
sentence of Section 7.19 of the Agreement is hereby deleted and replaced with
"Effective Time".
E. CLOSING DELIVERIES AND EXHIBITS
1. Exhibit 3.1(c)(i) to the Original Agreement is hereby
deleted in its entirety and replaced with Exhibit 3.1(c)(i) attached to this
Second Amendment.
2. The forms of Lease Assignments relating to the San ▇▇▇▇
property and the Alliance property included in Exhibit 4.2(a)(iii) to the
Original Agreement are hereby deleted. The forms of Lease Assignments relating
to the Tampa property, the Paris apartments and the Alliance property included
in Exhibit 4.2(a)(iii) attached to this Second Amendment are hereby included in
Exhibit 4.2(a)(iii) of the Agreement.
3. Exhibit 4.2(a)(ix) to the Original Agreement is hereby
deleted in its entirety and replaced with Exhibit 4.2(a)(ix) attached to this
Second Amendment.
4. Section 4.2(a)(xi) of the Agreement is hereby deleted in its
entirety and replaced with the following:
"(xi) a subcontracting agreement substantially in the form of
Exhibit 4.2(a)(xi) (together with appropriate schedules and exhibits,
the "SUBCONTRACTING AGREEMENT");"
5. Exhibit 4.2(a)(xi) to the Original Agreement is hereby
deleted in its entirety and replaced with Exhibit 4.2(a)(xi) attached to this
Second Amendment.
6. Exhibit 4.2(a)(xiii) to the Original Agreement is hereby
deleted in its entirety and replaced with Exhibit 4.2(a)(xiii) attached to this
Second Amendment.
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7. Exhibit 4.2(a)(xv) to the Original Agreement is hereby
deleted in its entirety and replaced with Exhibit 4.2(a)(xv) attached to this
Second Amendment.
8. Exhibit 4.2(a)(xix) to the Original Agreement is hereby
deleted in its entirety and replaced with Exhibit 4.2(a)(xix) attached to this
Second Amendment.
9. Section 4.2(a)(xxi) of the Agreement is hereby deleted in
its entirety and replaced with the following:
"(xxi) a receipt for the Closing Cash Payment (including the Foreign
Currency Payments) and all interest thereon specifying the amounts paid
by the Buyer and each Buying Subsidiary which shall be consistent with
the Bills of Sale."
10. Section 4.2(b)(i) of the Agreement is hereby deleted in its
entirety and replaced with the following:
"(i) the Closing Cash Payment (including all Foreign Currency
Payments) and all accrued interest thereon pursuant to the terms of
Section 3.1(b);"
11. Exhibit 4.2(b)(xviii) to the Original Agreement is hereby
deleted in its entirety and replaced with Exhibit 4.2(b)(xviii) attached to this
Second Amendment.
12. The Exhibit Index to the Agreement is hereby deleted in its
entirety and replaced with the following:
"EXHIBIT INDEX
EXHIBIT DESCRIPTION
-----------
1..................................Transition Agreement
2..................................Cherokee Purchase Agreement
3..................................Air Services Business Letter of Intent
3.1(c)(i)..........................Contingent Note
3.1(c)(ii).........................Guaranty
3.4................................Purchase Price Allocation
4.2(a)(iii)........................Form Lease Assignments
4.2(a)(iv).........................Trinity Lease Agreement
4.2(a)(v)..........................Shared Facilities Agreement
4.2(a)(ix).........................Outsourcing Agreement
4.2(a)(x)..........................Technology License Agreement
4.2(a)(xi).........................Subcontracting Agreement
4.2(a)(xii)........................Commercial Agreement
4.2(a)(xiii).......................TMD Marketing Agreement
4.2(a)(xv).........................Alignment of Interests Agreement
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4.2(a)(xix)........................Matters to be Covered by Legal
Opinion of Counsel to the Seller and
the Seller Parent
4.2(b)(xviii)......................Matters to be covered by Legal
Opinion of Counsel to the Buyer and
the Buyer Parent"
F. SELLER DISCLOSURE SCHEDULE
1. Each of the following sections of the Seller Disclosure
Schedule is hereby deleted in its entirety and replaced with the corresponding
section of the Supplement to Seller Disclosure Schedule delivered by Seller to
the Buyer in connection with this Second Amendment (the "SUPPLEMENT TO SELLER
DISCLOSURE SCHEDULE"):
Section 1.1(a)(i)
Section 1.1(c)
Section 1.1(d) (including Annex 1.1(d))
Section 1.1(e) (including Annex 1.1(e))
Section 1.1(f)(i)
Section 1.1(h)
Section 1.1(j)
Section 5.3 (including Annex 5.3)
Section 5.4 (including Annexes 5.4(a)-1 and 5.4(a)-2)
Section 5.9 (including Annex 5.9(a))
Section 7.1
Section 8.4(d)
Section 8.4(e)
Section 13.10(c)
Section 13.10(d)
2. Each of the following sections of the Supplement to Seller
Disclosure Schedule is hereby added to the Seller Disclosure Schedule:
Section 3.1(a)
Section 5.2-A
Section 5.4-A
Section 5.5-A
Section 5.8-A
Section 5.15-A
Section 13.4
3. Section 3.4 of the Seller Disclosure Schedule is hereby
deleted in its entirety.
4. Each reference in the Agreement to a section of the Seller
Disclosure Schedule shall mean such section of the Seller Disclosure Schedule as
amended by the Supplement to Seller Disclosure Schedule.
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G. INDEMNIFICATION
1. The first sentence of Section 11.1 of the Agreement is
hereby deleted in its entirety and replaced with the following:
"The representations and warranties of the parties hereto contained
herein shall survive the Closing and shall remain in full force and
effect until the second anniversary of the Closing Date; provided,
however, that each representation or warranty set forth in Sections
5.6, 5.13, 5.14, 5.16, 5.5-A, 5.11-A and 5.12-A shall remain in full
force and effect until the statute of limitations applicable to the
subject matter of such representation or warranty (including any
waivers) has expired."
2. Section 11.2(a) of the Agreement is hereby deleted in its
entirety and replaced with the following:
"(a) After the Closing Date, the Seller and the Seller Parent
jointly and severally hereby agree to defend, indemnify and hold
harmless the Buyer, the Buyer Parent, their Affiliates and their
respective successors and assigns (collectively, the "BUYER GROUP"), as
the case may be, from and against all past, present and future demands,
claims, suits, actions or causes of action, assessments, losses,
damages, liabilities, fines, judgments, costs and expenses, including
interest, penalties and reasonable attorneys' and consultants' fees,
disbursements and expenses (collectively, "DAMAGES") asserted against,
imposed upon or incurred by any member of the Buyer Group by reason of
or resulting from: (i) a breach of any representation or warranty of
the Seller or the Seller Parent contained in this Agreement or any
certificate delivered pursuant to Section 4.2(a); (ii) a breach of any
covenant or agreement of the Seller or the Seller Parent contained in
Section 7.1; (iii) a breach of any covenant or agreement of the Seller
or the Seller Parent contained in this Agreement other than those
contained in Section 7.1; (iv) the Retained Liabilities; (v) any
noncompliance with any bulk sales Laws in connection with the
transactions contemplated by this Agreement; (vi) Identified
Environmental Conditions; (vii) the Buyer Group's obligations under (1)
Section 19.12 of the Third Amended ITSA, (2) the last sentence of
Section 10.4 of the Third Amended ITSA, (3) the last sentence of
Section 14.1 of the Third Amended ITSA, and (4) the last proviso of
Section 24.1(C) of the Third Amended ITSA (or any provisions contained
in any amendment to, or replacement for, the Third Amended ITSA to the
same effect as the provisions set forth in clauses (1) through (4))
(collectively, the "AA TRANSITION PROVISIONS"); provided that the
Seller and the Seller Parent shall not be required to defend, indemnify
or hold harmless the Buyer Group under this clause (vii) with respect
to any breach by the Buyer Group (or any member thereof or successor
thereto) of any provision of the Third Amended ITSA other than the AA
Transition Provisions; (viii) the Buyer Group's obligations under
Section 19.11 of the First Amended US Airways ITSA (or any provisions
contained in any amendment to, or replacement for, the First Amended US
Airways ITSA to the same effect as the provisions set forth in Section
19.11 thereof (collectively, the "US AIRWAYS TRANSITION PROVISIONS");
provided that the Seller and the Seller Parent shall not be required to
defend, indemnify or hold harmless the Buyer Group under this clause
(viii)
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with respect to any breach by the Buyer Group (or any member thereof
or successor thereto) of any provision of the First Amended US
Airways ITSA other than the US Airways Transition Provisions; and
(ix) the lien imposed in the name of Her Majesty the Queen, in the
Right of the Province of British Columbia, under the Social Service
Tax Act, filed November 22, 2000, on certain of the Transferred
Assets located in the Province of British Columbia."
3. Section 11.7 of the Agreement is hereby deleted in its
entirety and replaced with the following:
"11.7 EXCLUSIVE REMEDY
If the Closing occurs, except for Claims relating to actual fraud and
except for equitable remedies, the remedies provided in this Article XI
constitute the sole and exclusive remedies between the parties for
Damages or any other Claims arising under this Agreement or under any
other Transaction Document (other than the Trinity Lease Agreement, the
Shared Facilities Agreement, the Technology License Agreement, the
Outsourcing Agreement, the Transition Agreement, the Subcontracting
Agreement, the Commercial Agreement, the TMD Marketing Agreement, the
Contingent Note, the Guaranty and the Alignment of Interests
Agreement), including Claims based upon the inaccuracy, untruth,
incompleteness or breach of any representation or warranty contained in
this Agreement or in such other Transaction Documents or based upon the
failure to perform any covenant, agreement or undertaking contained in
this Agreement or in such other Transaction Documents."
H. EMPLOYEE MATTERS
1. Section 8.1 of the Agreement is hereby amended by adding the
following subparagraph (n) immediately following subparagraph (m):
"(n) Notwithstanding anything to the contrary in this Agreement,
if a Domestic Designated Employee is not actively at work on the
Domestic Employee Transition Date, such Domestic Designated Employee
shall not transition employment to the Buyer until such Domestic
Designated Employee is ready to return to work; provided, however,
that, (i) the Buyer shall have no obligation to extend employment to
any Domestic Designated Employee who is not actively at work as of the
Domestic Employee Transition Date unless such Domestic Designated
Employee is able to return to work within 180 days after the Domestic
Employee Transition Date and (ii) in the case of medical leave, such
return to work is approved by a licensed physician."
2. Section 8.6 of the Original Agreement is hereby deleted in
its entirety and replaced with the following:
"As soon as practicable after the Employee Transition Date, the Seller
and the Buyer shall permit elective transfers of account balances and
outstanding loan balances of the
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Domestic Transferred Employees from the Seller 401(k) Plan to the
Buyer 401(k) Plan. To the extent that a Transferred Employee does
not elect to transfer his account balance from the Seller 401(k)
Plan to the Buyer 401(k) Plan, Seller shall permit such Transferred
Employees to receive a distribution from the Seller 401(k) Plan on
or after January 1, 2002. The Buyer 401(k) Plan shall provide that
(i) such Domestic Transferred Employees shall be eligible to
participate in the Buyer 401(k) Plan as of the Employee Transition
Date and (ii) the Buyer Entity shall take into account each Domestic
Transferred Employee's Past Service for purposes of eligibility and
vesting in the Buyer 401(k) Plan. Domestic Transferred Employees
shall be required to sign new salary deferral agreements with
respect to the Buyer 401(k) Plan."
I. ORIGINAL REPRESENTATIONS AND WARRANTIES
1. The representations and warranties contained in Articles V
and VI of the Agreement, as amended by the First Amendment and the Second
Amendment, shall continue to be deemed to be made as of March 14, 2001 and shall
not, by reason of the First Amendment or the Second Amendment or otherwise, be
deemed to have been made or remade at any later date (including the date of the
First Amendment or the Second Amendment); provided, however, that the foregoing
shall not affect the requirement that, as conditions to the Closing, the parties
deliver at or prior to the Closing the certificates contemplated by Sections 9.5
and 10.5 of the Agreement, or the effectiveness of such certificates.
2. Each reference to "Transferred Leased Real Property" in
Sections 5.6(a) and 5.7(b) of the Agreement is hereby deleted and replaced with
"Original Transferred Leased Real Property."
3. Each reference to "Premises" in Article V and in Section
7.1(m) of the Agreement is hereby deleted and replaced with "Original Premises".
4. Each reference to "Assigned Customer Agreements" in Section
5.5(b)(x), Section 5.19 and Section 7.1(l) in the Agreement is hereby deleted
and replaced with "Original Assigned Customer Agreements".
5. Each reference to "Transferred Customer Contracts" or
"Transferred Customer Contract" in Section 5.9(a)(vii), Section 5.9(b)(iii) and
Section 7.1(o) in the Agreement is hereby deleted and replaced with "Original
Assigned Customer Agreements" or "Original Assigned Customer Agreement", as the
case may be.
6. Each reference to "Transferred Contracts" in Article V
(including the heading to Section 5.9) and in Section 7.1 of the Agreement is
hereby deleted and replaced with "Original Transferred Contracts".
7. Each reference to "Transferred Assets" in Article V
(including the heading to Section 5.19) and in Sections 6.3 and 7.1 of the
Agreement is hereby deleted and replaced with "Original Transferred Assets".
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8. Each reference to "Transferred Business" in Article V and in
Section 7.1 of the Agreement is hereby deleted and replaced with "Original
Transferred Business".
9. Each reference to "Selling Subsidiary" or "Selling
Subsidiaries" in Article V or in Section 7.1 of the Agreement is hereby deleted
and replaced with "Original Selling Subsidiary" or "Original Selling
Subsidiaries", as the case may be.
10. Each reference to "Transferred Permits" in Section 5.11 of
the Agreement is hereby deleted and replaced with "Original Transferred
Permits".
11. Each reference to "Transferred Tangible Assets" in Article V
and Section 7.2 of the Agreement is hereby deleted and replaced with "Original
Transferred Tangible Assets".
12. Each reference to "Assumed Liabilities" in Sections 5.3,
5.4(a), 5.4(b) and 6.3 and the heading of Section 5.4 in the Agreement is hereby
deleted and replaced with "Original Assumed Liabilities".
13. Each reference to "hereby" in Sections 5.2, 5.3, 5.12, 6.2,
6.3, 7.1(e) and 7.1(f) of the Agreement is hereby deleted and replaced with "by
the Original Agreement"; each reference to "hereunder" in Sections 5.2, 5.3, 6.2
and 6.3 of the Agreement is hereby deleted and replaced with "under the Original
Agreement"; each reference to "hereof" in Sections 5.9(h), 5.10, 5.15(b), 5.20
and 7.2(a) of the Agreement is hereby deleted and replaced with "of the Original
Agreement"; and each reference to "hereto" in Section 5.12 and Section 7.5(h) is
hereby deleted and replaced with "to the Original Agreement".
14. Each reference to "thereby" in Sections 5.2, 5.3, 5.12, 6.2
and 6.3 of the Agreement is hereby deleted and replaced with "by such
Transaction Documents"; and each reference to "thereunder" in Sections 5.2 and
6.2 of the Agreement is hereby deleted and replaced with "under such Transaction
Documents".
15. Section 5.3(i)(y) of the Agreement is hereby deleted in its
entirety and replaced with the following:
"(y) the Consents identified under the heading "Original Consents" in
Section 5.3 of the Seller Disclosure Schedule ("ORIGINAL SELLER
CONSENTS") and"
16. The first sentence of Section 5.8 of the Agreement is hereby
deleted in its entirety and replaced with the following:
"All tangible property to be transferred to the Buyer and the Buying
Subsidiaries by the Seller and the Selling Subsidiaries pursuant to
this Agreement, the Lease Assignments, the Bills of Sale, the
Assignment and Assumption Agreements and the Other Conveyance
Documents, whether owned or leased, is being transferred "as is,"
"where is," and "with all faults.""
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17. Section 5.23 of the Agreement is hereby amended by inserting
", Article V-A" immediately after "Except for the representations and warranties
contained in this Article V".
18. Section 6.7 of the Agreement is hereby amended by inserting
", Article VI-A" immediately after "Except for the representations and
warranties contained in this Article VI".
J. ADDITIONAL REPRESENTATIONS AND WARRANTIES
1. The representations and warranties contained in Appendix A
attached to this Second Amendment shall be deemed to be made as of the date of
this Second Amendment and shall be added to the Agreement by inserting such
Article immediately after Article V of the Agreement.
2. The representations and warranties contained in Appendix B
attached to this Second Amendment shall be deemed to be made as of the date of
this Second Amendment and shall be added to the Agreement by inserting such
Article immediately after Article VI of the Agreement.
K. DEFINITIONS
1. The following definitions shall be added to Section 13.10 of
the Agreement by inserting such definitions into such Section in such a way as
to keep all definitions appearing in such Section, as amended by this Second
Amendment, in alphabetical order:
"ADDITIONAL ASSIGNED CUSTOMER AGREEMENTS" shall mean those
Assigned Customer Agreements consisting of the Contracts identified
under the heading "Additional Assigned Customer Agreements" in Section
1.1(c) of the Seller Disclosure Schedule.
"ADDITIONAL ASSUMED LIABILITIES" shall mean those Assumed
Liabilities consisting of (i) all liabilities and obligations of any
kind, character or description relating directly to, or arising under
or in respect of, performance after the Effective Time under the
Additional Transferred Contracts and Additional Transferred Leases,
(ii) all liabilities and obligations of any kind, character or
description arising after the Effective Time in respect of the
interests in the Additional Premises transferred to the Buyer and the
Buying Subsidiaries pursuant to the Agreement or any other Transaction
Document (including payment of all Taxes, utilities and other related
payments) and (iii) all liabilities and obligations of any kind,
character or description arising before the Effective Time under any
Environmental Law in connection with the ownership or operation of the
Additional Transferred Leased Real Property except (1) for any such
liabilities and obligations arising with respect to any Identified
Environmental Condition and (2) to the extent that the Buyer is
entitled to receive payments in respect of rights to indemnification
under this Agreement by reason of breach by the Seller or the Seller
Parent of any representation or warranty contained in Section 5.11-A.
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"ADDITIONAL PREMISES" shall mean those Premises consisting of
the Additional Transferred Leased Real Property.
"ADDITIONAL SELLING SUBSIDIARIES" shall mean those Selling
Subsidiaries listed under the heading "Additional Selling Subsidiaries"
in Section 13.10(d) of the Seller Disclosure Schedule.
"ADDITIONAL TRANSFERRED ASSETS" shall mean those Transferred
Assets consisting of the Additional Transferred Leased Real Property,
the Additional Transferred Tangible Assets, the Additional Transferred
Contracts, the Additional Transferred Permits and the Additional
Transferred Personal Property.
"ADDITIONAL TRANSFERRED BUSINESS" shall mean that portion of
the Transferred Business consisting of all services provided and
operations conducted or required to be conducted by the Seller or the
Selling Subsidiaries to the extent required under the Additional
Assigned Customer Agreements.
"ADDITIONAL TRANSFERRED CONTRACTS" shall mean those
Transferred Contracts consisting of the Additional Assigned Customer
Agreements, the Additional Transferred Software Licenses, the
Additional Transferred Vendor Contracts and the Additional Transferred
Leases.
"ADDITIONAL TRANSFERRED LEASED REAL PROPERTY" shall mean that
portion of the Transferred Leased Real Property consisting of the real
property listed as Transferred Leased Real Property under the heading
"Additional Transferred Leased Real Property" in Section 1.1(a)(i) of
the Seller Disclosure Schedule.
"ADDITIONAL TRANSFERRED LEASES" shall mean those Transferred
Leases consisting of leases and subleases relating to the Additional
Transferred Leased Real Property.
"ADDITIONAL TRANSFERRED PERMITS" shall mean those Transferred
Permits consisting of Permits which either (i) relate primarily to the
Additional Transferred Assets or the Additional Transferred Business or
(ii) are identified under the heading "Additional Transferred Permits"
in Section 1.1(h) of the Seller Disclosure Schedule.
"ADDITIONAL TRANSFERRED PERSONAL PROPERTY" shall mean the
Transferred Personal Property consisting of the personal property
identified under the heading "Additional Transferred Personal Property"
in Section 1.1(j) of the Seller Disclosure Schedule.
"ADDITIONAL TRANSFERRED SOFTWARE LICENSES" shall mean those
Transferred Software Licenses consisting of the Software Licenses
identified under the heading "Additional Transferred Software Licenses"
in Section 1.1(d) of the Seller Disclosure Schedule.
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"ADDITIONAL TRANSFERRED TANGIBLE ASSETS" shall mean those
Tangible Assets which are located on the Additional Transferred
Premises and that are not otherwise Original Transferred Tangible
Assets.
"ADDITIONAL TRANSFERRED VENDOR CONTRACTS" shall mean those
Transferred Vendor Contracts consisting of the Contracts identified
under the heading "Additional Transferred Vendor Contracts" in Section
1.1(e) of the Seller Disclosure Schedule.
"EFFECTIVE TIME" shall mean 12:01 a.m. Central Time on July 1,
2001.
"FIRST AMENDED US AIRWAYS ITSA" shall mean the First Amended
and Restated Information Technology Services Agreement, dated as of
June 29, 2001, by and between US Airways, Inc. and the Seller.
"FIRST AMENDMENT" shall mean the First Amendment to Asset
Purchase Agreement, dated July 2, 2001, effective as of 12:01 a.m.
Central Time on July 1, 2001.
"ORIGINAL AGREEMENT" shall mean the Asset Purchase Agreement,
dated as of March 14, 2001, by and among Buyer, Buyer Parent, Seller
and Seller Parent prior to any amendment thereto.
"ORIGINAL ASSIGNED CUSTOMER AGREEMENTS" shall mean those
Assigned Customer Agreements consisting of the Contracts identified
under the heading "Original Assigned Customer Agreements" in Section
1.1(c) of the Seller Disclosure Schedule.
"ORIGINAL ASSUMED LIABILITIES" shall mean those Assumed
Liabilities consisting of (i) all liabilities and obligations of any
kind, character or description relating directly to, or arising under
or in respect of, performance after the Effective Time under the
Original Transferred Contracts, Original Transferred Permits and
Original Transferred Leases, (ii) all liabilities and obligations of
any kind, character or description arising after the Effective Time in
respect of the interests in the Original Premises transferred to the
Buyer and the Buying Subsidiaries pursuant to this Original Agreement
or any other Transaction Document (including payment of all Taxes,
utilities and other related payments), (iii) any and all Transfer Taxes
for which the Buyer Parent, the Buyer or any Buying Subsidiary is
responsible pursuant to Section 3.3(a)(i), (iv) those liabilities and
obligations expressly assumed by the Buyer and the Buying Subsidiaries
pursuant to Article VIII, (v) all fees payable to Computer Associates
International, Inc. after the Effective Time pursuant to Article 3 of
the License Agreement, dated June 30, 1997, between the Seller and
Computer Associates International, Inc., as amended to date, but in no
event more than the minimum annual payments specified therein, and (vi)
all liabilities and obligations of any kind, character or description
arising before the Effective Time under any Environmental Law in
connection with the ownership or operation of the Original Transferred
Leased Real Property except (1) for any such liabilities and
obligations arising with respect to any Identified Environmental
Condition and (2) to the extent that the Buyer is entitled to receive
payments in respect of rights to
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indemnification under the Agreement by reason of breach by the
Seller or the Seller Parent of any representation or warranty
contained in Section 5.13.
"ORIGINAL PREMISES" shall mean those Premises consisting of
the Original Transferred Leased Real Property and the Leasehold
Interests.
"ORIGINAL SELLING SUBSIDIARIES" shall mean those Selling
Subsidiaries listed under the heading "Original Selling Subsidiaries"
in Section 13.10(d) of the Seller Disclosure Schedule.
"ORIGINAL TRANSFERRED ASSETS" shall mean those Transferred
Assets consisting of the Original Premises, the Original Transferred
Tangible Assets, the Original Transferred Contracts, the Prepaid Items,
the Transferred Books and Records, the Original Transferred Permits,
the Original Transferred Personal Property and the capitalized software
development costs associated with the development of version 4.1 of the
operating system for the Seller's Flight Operations System (FOS)
product (but not including any Intellectual Property Rights or
Software).
"ORIGINAL TRANSFERRED BUSINESS" shall mean that portion of the
Transferred Business consisting of all services provided and operations
conducted or required to be conducted by the Seller or the Selling
Subsidiaries to the extent required under the Original Assigned
Customer Agreements.
"ORIGINAL TRANSFERRED CONTRACTS" shall mean those Transferred
Contracts consisting of the Original Assigned Customer Agreements, the
Original Transferred Software Licenses, the Original Transferred
Vendor Contracts and the Original Transferred Leases.
"ORIGINAL TRANSFERRED LEASED REAL PROPERTY" shall mean those
Transferred Leased Real Property consisting of the real property listed
as Transferred Leased Real Property under the heading "Original
Transferred Leased Real Property" in Section 1.1(a)(i) of the Seller
Disclosure Schedule.
"ORIGINAL TRANSFERRED LEASES" shall mean those Transferred
Leases consisting of all leases and subleases relating to the Original
Transferred Leased Real Property.
"ORIGINAL TRANSFERRED PERMITS" shall mean those Transferred
Permits consisting of Permits which either (i) relate primarily to the
Original Transferred Assets, the Original Transferred Business or the
provision by the Seller and the Selling Subsidiaries prior to the
Closing of the Outsourced Services or (ii) are identified under the
heading "Original Transferred Permits" in Section 1.1(h) of the Seller
Disclosure Schedule.
"ORIGINAL TRANSFERRED PERSONAL PROPERTY" shall mean the
Transferred Personal Property consisting of the personal property
identified under the heading "Original Transferred Personal Property"
in Section 1.1(j) of the Seller Disclosure Schedule.
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"ORIGINAL TRANSFERRED SOFTWARE LICENSES" shall mean those
Transferred Software Licenses consisting of the Software Licenses
identified under the heading "Original Transferred Software Licenses"
in Section 1.1(d) of the Seller Disclosure Schedule.
"ORIGINAL TRANSFERRED TANGIBLE ASSETS" shall mean those
Transferred Tangible Assets consisting of the Tangible Assets which are
either (i) located on the Original Premises, (ii) used primarily in the
Original Transferred Business, (iii) used by the Seller and the Selling
Subsidiaries prior to the Closing primarily to provide the Outsourced
Services, or (iv) used primarily both in the Original Transferred
Business and by the Seller and the Selling Subsidiaries prior to the
Closing to provide the Outsourced Services, in each case except for the
Tangible Assets identified in Section 1.1(b) of the Seller Disclosure
Schedule.
"ORIGINAL TRANSFERRED VENDOR CONTRACTS" shall mean those
Transferred Vendor Contracts consisting of the Contracts identified
under the heading "Original Transferred Vendor Contracts" in Section
1.1(e) of the Seller Disclosure Schedule.
"SECOND AMENDMENT" shall mean the Second Amendment to Asset
Purchase Agreement, dated July 2, 2001, effective as of 12:01 a.m.
Central Time on July 1, 2001, by and among Buyer, Buyer Parent, Seller
and Seller Parent."
2. AGREEMENT REFERENCES
(a) Each reference to "Agreement" or "this Agreement"
in the Agreement (other than references to agreements other than the
Asset Purchase Agreement) described below is hereby deleted and
replaced with "Original Agreement" or "the Original Agreement",
respectively:
Section 5.2, Section 5.3, Section 5.4(b), Section
5.8, Section 5.9(g), Section 5.9(h), Section 5.11, Section 5.12,
Section 5.18, Section 5.19, Section 6.2, Section 6.3, Section 6.5,
Section 6.6, the lead-in paragraph of Section 7.1 before subparagraph
(a), Section 7.1(f), Section 7.2(a), Section 7.2(b), Section 7.5(a)
(but excluding references in subparagraphs (i) and (ii)), the first
reference in Section 7.5(d) (but excluding the second reference in such
Section), the first sentence in Section 7.6, the first reference in
Section 7.9 (but excluding the second reference), the first two
references in Section 7.12 (but excluding the third and fourth
references), Section 7.19, Section 8.1(b), Section 8.1(c), Section
8.1(l), Section 8.2(a), Section 8.2(c), Section 8.3(a), and Section
8.12(a).
(b) The reference to "this Agreement" in the definition
of "Transaction Documents" in Section 13.10 of the Agreement shall mean
(1) "Original Agreement" when the term "Transaction Document" or
"Transaction Documents" is used in Section 5.2, Section 5.3, Section
5.4(b), Section 5.12, Section 5.18, Section 5.19, Section 5.23, Section
6.2, Section 6.3, Section 6.5, Section 6.6 and Section 6.7 and (2) the
Agreement
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as amended by the First Amendment and this Second Amendment, each
other time that the term "Transaction Document" or "Transaction
Documents" appears in the Agreement.
(c) All other references to "Agreement" in the
Agreement (other than those in the Recitals and on the signature
page) shall be deemed to mean the Agreement as amended by the First
Amendment and this Second Amendment.
3. The first sentence of the definition of "Buyer Disclosure
Schedule" in Section 13.10 of the Agreement is hereby deleted in its entirety
and replaced with the following:
""BUYER DISCLOSURE SCHEDULE" shall mean the written information
entitled "Buyer Disclosure Schedule to Asset Purchase Agreement", as
amended, delivered to the Seller describing the matters contained
therein."
4. The first sentence of the definition of "Seller Disclosure
Schedule" in Section 13.10 of the Agreement is hereby deleted in its entirety
and replaced with the following:
""SELLER DISCLOSURE SCHEDULE" shall mean the written information
entitled "Seller Disclosure Schedule to Asset Purchase Agreement", as
amended, delivered to the Buyer describing the matters contained
therein."
5. Section 1.3 of the Agreement is hereby amended by deleting
"subheading" in Sections 1.3(a)(i), 1.3(a)(iii) and 1.3(a)(iv) and replacing it
with "subheadings".
L. MISCELLANEOUS
1. Section 1.1(b) of the Agreement is hereby amended by
inserting "interests of the Seller and the Selling Subsidiaries in the"
immediately after the first word, "All".
2. Section 1.1(c) of the Agreement is hereby amended by
deleting "(as defined in Section 4.1)".
3. Section 2.1(f) of the Agreement is hereby amended by adding
"or Section 5.11-A" to the end of such Section.
4. Section 2.2(h) of the Agreement is hereby amended by
deleting "the amount shown on the Statement of Assets and Liabilities (as
defined in Section 5.4)" and replacing it with "$1,900,000".
5. The second sentence of Section 5.6(b) of the Agreement is
hereby amended by deleting "and leases entered into by the Seller or the Selling
Subsidiaries, as lessor, with "Third Party Participants" (as defined in the
Outsourcing Agreement)" and Section 7.11 of the Agreement is hereby deleted in
its entirety and replaced with the following:
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"Prior to or at the Closing, the Seller will deliver to the Buyer, and
cause to be filed or recorded, such releases, termination statements
and other documents and instruments as are sufficient to eliminate and
extinguish all Liens (other than Permitted Liens) on any of the
Transferred Assets so that, at the Closing, the Buyer or the
appropriate Buying Subsidiary designated by Buyer will receive title to
such Transferred Assets free and clear of such Liens (other than
Permitted Liens)."
6. Section 7.5(a)(i) of the Agreement is hereby amended by
deleting the last sentence of such Section in its entirety.
7. Section 7.15 of the Agreement is hereby deleted in its
entirety and replaced with the following:
"7.15 [INTENTIONALLY OMITTED]"
8. Section 13.8 of the Agreement is hereby amended by adding
the following to the end of the first sentence of such Section:
", other than Exhibit 3.4 (which shall be included)."
9. The following shall be added to the Agreement as Section
13.16:
"13.16 UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL
SALE OF GOODS
The parties agree that the United Nations Convention on Contracts for
the International Sale of Goods, as amended from time to time, shall
not apply to this Agreement."
10. The Buyer hereby consents to the matters described in
Section 13.4 of the Supplement to Seller Disclosure Schedule and waives,
pursuant to Section 13.4(a) of the Agreement, any and all claims it may have
arising out of, resulting from or relating thereto.
ARTICLE III
A. GOVERNING LAW
This Second Amendment shall be governed by and construed in accordance
with the laws of the State of Texas without giving effect to any of the conflict
of law rules thereof.
B. COUNTERPARTS
This Second Amendment may be executed in any number of counterparts,
each of which shall be deemed an original and all of which together shall
constitute one and the same instrument.
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C. HEADINGS
The headings in this Second Amendment are for convenience of reference
only and do not define, limit or describe the scope of the Second Amendment or
the intent of its provisions.
IN WITNESS WHEREOF, this Second Amendment has been executed by duly
authorized officers of each of the parties as of the date first above written.
EDS INFORMATION SERVICES L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇
Title: Vice President
ELECTRONIC DATA SYSTEMS CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President, U.S. Southwest - IS
SABRE INC.
By: /s/ ▇▇▇▇. ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President and General Manager
SABRE HOLDINGS CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President, Chief Financial
Officer and Treasurer
[SIGNATURE PAGE TO SECOND AMENDMENT TO ASSET PURCHASE AGREEMENT]
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APPENDIX A
ARTICLE V-A
ADDITIONAL REPRESENTATIONS AND WARRANTIES OF SELLER AND SELLER PARENT
Except as set forth in the Seller Disclosure Schedule, the Seller and
the Seller Parent jointly and severally represent and warrant to the Buyer and
the Buyer Parent as of the date of the Second Amendment as follows:
5.1-A POWER; AUTHORITY; ENFORCEABLE OBLIGATIONS
Each Additional Selling Subsidiary is a corporation duly organized,
validly existing and in good standing under the Laws of the jurisdiction in
which it is incorporated. Each of the Seller, the Seller Parent and the
Additional Selling Subsidiaries has full corporate power and authority to carry
on the Additional Transferred Business that it conducts as such business is now
being conducted by it and to own, operate and lease the Additional Transferred
Assets that it owns, operates or leases. Each Additional Selling Subsidiary is
duly qualified or licensed to do business as a foreign corporation and is in
good standing in each jurisdiction in which such qualification is required,
except where the failure to be so qualified or licensed would not reasonably be
expected to have, individually or in the aggregate, a Seller Material Adverse
Effect. Each of the Seller and the Seller Parent has full corporate power and
authority to enter into and perform its obligations under the First Amendment
and the Second Amendment and to carry out the transactions contemplated by the
First Amendment and the Second Amendment. Each Additional Selling Subsidiary has
full corporate power and authority to enter into and perform its obligations
under the Transaction Documents to which it is a party and to carry out the
transactions contemplated thereby. Each of the Seller and the Seller Parent has
taken all action required by Law, its certificate of incorporation and bylaws or
otherwise to authorize the execution and delivery of the First Amendment and the
Second Amendment, the performance by the Seller and the Seller Parent of their
respective obligations under the First Amendment and the Second Amendment and
the consummation by the Seller and the Seller Parent of the transactions
contemplated by the First Amendment and the Second Amendment. Each Additional
Selling Subsidiary has taken all action required by Law, its certificate or
articles of incorporation and bylaws or otherwise to authorize the execution and
delivery by such Additional Selling Subsidiary of any Transaction Document to
which it is a party, the performance by such Additional Selling Subsidiary of
its obligations thereunder and the consummation by such Additional Selling
Subsidiary of the transactions contemplated thereby. Each of the First Amendment
and the Second Amendment has been duly executed and delivered by the Seller and
the Seller Parent. At the Closing, each of the other Transaction Documents will
be duly executed and delivered by each of the Additional Selling Subsidiaries
intended by the terms of such Transaction Documents to be party thereto. Each of
the First Amendment and the Second Amendment is a valid and binding agreement of
the Seller and the Seller Parent enforceable against the Seller and the Seller
Parent in accordance with its terms, except as such validity, binding effect or
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, conservatorship, fraudulent transfer, moratorium
(whether general or specific) or other Law now or hereafter in effect affecting
the enforceability of creditors' rights generally, and except that the
availability of equitable remedies, such as specific performance or injunctive
relief, are subject to the discretion of the court before which any proceeding
may be brought. Each of the Transaction Documents to which any Additional
Selling Subsidiary is a party, when executed and delivered at the Closing, will
be valid and binding and enforceable against such party in accordance with its
terms, except as such validity, binding effect or enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, receivership,
conservatorship, fraudulent transfer, moratorium (whether general
or specific) or other Law now or hereafter in effect affecting the
enforceability of creditors' rights generally, and except that the
availability of equitable remedies, such as specific performance or
injunctive relief, are subject to the discretion of the court before which
any proceeding may be brought.
5.2-A NO CONFLICTS
None of the (1) execution or delivery by the Seller or the Seller
Parent of the First Amendment or the Second Amendment, or the execution or
delivery by any Additional Selling Subsidiary of any Transaction Document to
which it is a party, (2) performance by the Seller or the Seller Parent of its
obligations under the First Amendment or the Second Amendment, or the
performance by any Additional Selling Subsidiary of its obligations under any
Transaction Document to which it is a party, or (3) consummation by the Seller,
the Seller Parent or any Selling Subsidiary of the transactions contemplated by
the First Amendment or the Second Amendment, or the consummation by any
Additional Selling Subsidiaries of the transactions contemplated by any
Transaction Document to which it is a party will: (i) require the Seller, the
Seller Parent or any such Selling Subsidiary to obtain the Consent of, or
deliver any notice, filing or application to, any governmental, administrative
or regulatory authority (whether federal, state, local or foreign) or any other
Person with respect to the Additional Transferred Business or the transfer of
the Additional Transferred Assets or the assumption of the Additional Assumed
Liabilities or performance under the other Transaction Documents, other than (x)
filings pursuant to the HSR Act or any similar Law, (y) the Consents identified
under the heading "Additional Consents" in Section 5.3 of the Seller Disclosure
Schedule ("ADDITIONAL SELLER CONSENTS") and (z) compliance with any state bulk
sales law, any factory closing law or any similar Law; (ii) conflict with or
result in any violation of any provision of the certificate or articles of
incorporation or bylaws (or other charter or governance documents), each as
amended to date, of the Seller, the Seller Parent or any Selling Subsidiary;
(iii) result in any conflict with, or Default under, any Transferred Contract,
any lease relating to the Premises, any lease relating to any material
Transferred Tangible Assets or any other material Contract to which the Seller,
the Seller Parent or any Selling Subsidiary is a party or pursuant to which any
of their respective properties or assets are bound; (iv) violate any term of any
Law applicable to the Seller, Seller Parent or any Selling Subsidiary or any of
their respective properties or assets (but in no event does Seller or Seller
Parent make any representation or warranty under the First Amendment or the
Second Amendment regarding non-infringement of any Intellectual Property Rights
or Software); or (v) result in the creation of, or impose on the Seller, the
Seller Parent or any Selling Subsidiary the obligation to create, any Lien upon
the Transferred Assets.
-2-
5.3-A NO UNDISCLOSED ADDITIONAL ASSUMED LIABILITIES
(a) There are no material Additional Assumed Liabilities that
are of a nature required by GAAP to be reflected on, or identified in the notes
to, a balance sheet of the Seller and the Selling Subsidiaries, except for (i)
liabilities and obligations reflected or reserved for in, or identified in the
notes to, the Statement of Assets and Liabilities, (ii) liabilities and
obligations incurred after the date of the Statement of Assets and Liabilities
in the ordinary course of business consistent with past practice and (iii)
liabilities and obligations under the Agreement or the other Transaction
Documents.
(b) Except for operating leases entered into in the ordinary
course of business, none of the Seller or any Selling Subsidiaries has any
material liabilities or obligations in respect of financing arrangements
relating to the Additional Transferred Business or the Additional Transferred
Assets for which the liabilities or obligations of Seller or the Selling
Subsidiaries are not required by GAAP to be reflected on, or identified in the
notes to, a balance sheet of Seller.
5.4-A ABSENCE OF CHANGES
(a) Since January 1, 2000, there has been no destruction of any
material tangible asset of the Seller or the Selling Subsidiaries that relates
primarily to the Additional Transferred Business (whether or not covered by
insurance).
(b) Since September 30, 2000:
(i) the Seller and the Selling Subsidiaries have used
commercially reasonable efforts consistent with past practice to
preserve business relationships with employees and with customers,
vendors and suppliers under the Additional Transferred Contracts;
(ii) the Seller and the Selling Subsidiaries have paid
and performed all obligations under the Additional Transferred
Contracts consistent with past practice;
(iii) neither the Seller, the Seller Parent nor the
Selling Subsidiaries have permitted or allowed any of the Additional
Transferred Assets to be subjected to any Liens, other than Permitted
Liens;
(iv) neither the Seller nor the Selling Subsidiaries
have sold, leased, transferred or otherwise disposed of any asset that,
but for such sale, lease, transfer or disposition, would have been an
Additional Transferred Asset, in each case except in the ordinary
course of business;
(v) neither the Seller nor the Selling Subsidiaries
have granted any increase in the compensation of officers or employees
engaged in the Additional Transferred Business (including any such
increase pursuant to any bonus, pension, profit sharing or other plan
or commitment) or entered into any employment agreements with any such
officers or employees, except in the ordinary course of business or as
required by Law;
-3-
(vi) neither the Seller nor the Selling Subsidiaries
have paid, discharged or satisfied any claims, liabilities or
obligations relating to the Additional Transferred Business (absolute,
accrued, contingent or otherwise) other than the payment, discharge or
satisfaction of any claims, liabilities or obligations made in the
ordinary course of business;
(vii) neither the Seller nor the Selling Subsidiaries
have amended, released or canceled any obligations, liabilities, rights
or claims included in the Additional Transferred Assets, except in the
ordinary course of business;
(viii) the Seller and the Selling Subsidiaries have
maintained and serviced the Additional Transferred Assets consistent
with past practice;
(ix) neither the Seller nor the Selling Subsidiaries
have made any single capital expenditure or commitment relating to the
Additional Transferred Business or the Additional Transferred Assets in
excess of $500,000 for additions to property, plant, equipment or
intangible capital assets;
(x) neither the Seller nor the Selling Subsidiaries
have amended or terminated any Additional Assigned Customer Agreement
or, except in the ordinary course of business, any other material
Additional Transferred Contract;
(xi) the Seller and the Selling Subsidiaries have
conducted, or caused to be conducted, the Additional Transferred
Business consistent with the ordinary course of the Additional
Transferred Business; and
(xii) neither the Seller nor the Selling Subsidiaries
have agreed, whether in writing or otherwise, to take any action
described in clauses (i) through (xi) of this Section 5.4-A(b).
5.5-A TITLE TO ASSETS
(a) The Seller and the Selling Subsidiaries have valid leasehold
or subleasehold interests in the Additional Transferred Leased Real Property, in
each case free and clear of all Liens, other than Permitted Liens. None of the
Seller or the Selling Subsidiaries has received any written notice of
assessments for public improvements, assessments for increased valuation for ad
valorem property taxes not yet due and payable or condemnation against any of
the Additional Premises.
(b) The Seller and the Selling Subsidiaries have good and
marketable title to, or hold valid leasehold interests in, all of the material
Additional Transferred Tangible Assets, in each case free and clear of all
Liens, other than Permitted Liens. The Seller and the Selling Subsidiaries have
good and marketable title to all Additional Transferred Assets that constitute
FINANCED HARDWARE free and clear of all Liens other than Permitted Liens.
-4-
(c) The Lease Assignments, Bills of Sale and Other Conveyance
Documents to be executed and delivered to the Buyer and the Buying Subsidiaries
by the Seller and the Selling Subsidiaries at the Closing will vest in the Buyer
or the appropriate Buying Subsidiary good and marketable title to the Additional
Transferred Assets, subject only to Permitted Liens.
5.6-A LEASES
All leases relating to the Additional Premises and any leased material
Additional Transferred Tangible Assets are valid, binding and enforceable in
accordance with their terms, and are, to the Knowledge of the Seller, in full
force and effect, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, receivership, conservatorship,
fraudulent transfer, moratorium (whether general or specific) or other Law now
or hereafter in effect affecting the enforceability of creditors rights
generally, and except that the availability of equitable remedies, such as
specific performance or injunctive relief, are subject to the discretion of the
court before which any proceeding may be brought. None of the Seller or the
Selling Subsidiaries is in Default under any such leases and, to the Knowledge
of the Seller, no other party to such leases is in Default under any such
leases. The Seller has provided or made available to the Buyer true and accurate
copies of the leases and subleases with respect to the Additional Transferred
Leased Real Property.
5.7-A CONDITION OF TANGIBLE PROPERTY
All tangible property to be transferred to the Buyer and the Buying
Subsidiaries by the Seller and the Selling Subsidiaries pursuant to this
Agreement, the Lease Assignments, the Bills of Sale, the Assignment and
Assumption Agreements and the Other Conveyance Documents, whether owned or
leased, is being transferred "as is," "where is," and "with all faults." EXCEPT
FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 5.14-A,
NEITHER THE SELLER NOR THE SELLING SUBSIDIARIES MAKE ANY WARRANTY WITH RESPECT
TO THE VALUE, CONDITION OR USE OF ANY OF THE TANGIBLE PROPERTY INCLUDED IN THE
ADDITIONAL TRANSFERRED ASSETS, WHETHER EXPRESSED OR IMPLIED, INCLUDING ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5.8-A ADDITIONAL TRANSFERRED CONTRACTS
(a) Section 5.8-A(a) of the Seller Disclosure Schedule contains
a complete and correct list of all Additional Transferred Contracts that fall
into one or more of the categories described below in this Section 5.8-A(a) (the
"ADDITIONAL SPECIFIED CONTRACTS"), specifically identifying which Additional
Specified Contracts fall into the categories described in clauses (i), (iv), (v)
and (vii) of this Section 5.8-A(a):
(i) all Contracts containing any provision, covenant or
obligation limiting or restricting in any manner whatsoever (whether
during any particular period of time from and after the Closing Date,
in certain geographic areas or otherwise) the ability of any of the
Seller or the Selling Subsidiaries to engage in any line of business,
to sell any
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products or services to or to compete with any Person, or to obtain
products or services from a Person;
(ii) all distribution, partnership, joint venture,
profit-sharing or similar Contracts with any Person;
(iii) Contracts containing covenants (other than
covenants granted pursuant to Contracts entered into in the ordinary
course of business with customers of the Additional Transferred
Business) that prohibit or prevent the Seller or any Selling Subsidiary
from hiring or soliciting any Person for employment for a period in
excess of six months after the Closing Date;
(iv) all Contracts that involve the disposition or
acquisition after December 31, 2000 of any assets of the Seller or any
Selling Subsidiary that involve an amount exceeding $1,000,000 and do
not relate to transactions entered into in the ordinary course of
business, consistent with past practice;
(v) all Contracts or arrangements (including those
relating to allocations of expenses, personnel, services, equipment or
facilities) between or among the Seller or any Selling Subsidiary, on
the one hand, and any of their respective Affiliates, on the other
hand;
(vi) all Contracts with sales representatives,
distributors, dealers or independent contractors upon which the
Additional Transferred Business or the provision by the Seller and the
Selling Subsidiaries prior to the Closing of the Outsourced Services is
materially dependent;
(vii) all Additional Assigned Customer Agreements that
require the Seller or any Selling Subsidiary to provide their goods or
services to any Person at (or calculated as a percentage of or
otherwise directly based upon) the lowest, best or most favorable price
(or otherwise upon the best or most favorable terms) provided to any
other Person; and
(viii) any other Contracts not included above which are
otherwise material to the Additional Transferred Business, the
Additional Transferred Assets or the provision by the Seller and the
Selling Subsidiaries prior to the Closing of the Outsourced Services
and which were not entered into in the ordinary course of the
Additional Transferred Business or the provision by the Seller and the
Selling Subsidiaries prior to the Closing of the Outsourced Services.
(b) Section 5.8-A(b) of the Seller Disclosure Schedule contains
a complete and correct list of:
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(i) all mortgages, deeds of trust, pledges, security
agreements or other instruments or arrangements granting or purporting
to ▇▇▇▇▇ ▇ ▇▇▇▇ (other than a Permitted Lien) upon any of the
Additional Transferred Assets; and
(ii) any notice of default under, or any termination or
written threat of termination of, any Additional Transferred Customer
Contract since January 1, 2000.
(c) Each Additional Transferred Contract is valid, binding and
in full force and effect and is enforceable in accordance with its terms against
the Seller or Selling Subsidiaries party thereto and, to the Knowledge of the
Seller, each other party thereto, in each case except as such validity, binding
effect or enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, conservatorship, fraudulent transfer, moratorium
(whether general or specific) or other Law now or hereafter in effect affecting
the enforceability of creditors' rights generally.
(d) No Seller or Selling Subsidiary nor, to the Knowledge of the
Seller, any other party to any Additional Transferred Contract is in Default
thereunder and, to the Knowledge of the Seller, there are no material disputes
with respect thereto, no notice of Default has been received by Seller or any
Selling Subsidiary in connection therewith, and, to the Knowledge of the Seller,
no event has occurred that would constitute a Default.
(e) Neither the Seller nor any Selling Subsidiary has any
present intention of not fully performing any Additional Transferred Contract
substantially in accordance with its terms and consistent with past practices.
(f) There are no oral contracts included in the Additional
Transferred Contracts that are material to the Additional Transferred Business
or the Additional Transferred Assets.
(g) The Seller and the Seller Parent have delivered to the Buyer
true and accurate copies of the First Amended US Airways ITSA, the Ancillary
Services Agreement, dated as of June 29, 2001, between US Airways, Inc. and the
Seller (the "ANCILLARY SERVICES AGREEMENT"), and the Agreement Concerning Option
Issuance Agreement, dated as of June 29, 2001, between US Airways, Inc., the
Seller Parent and the Seller (the "ESTOPPEL AGREEMENT"). The Option Issuance
Agreement, as modified by the Estoppel Agreement, is in full force and effect
and, together with the provisions of the First Amended US Airways ITSA, sets
forth the entire agreement of the parties regarding the obligation of US Airways
to repay certain proceeds received by US Airways upon exercise of Option One
pursuant to Section 4.3 of the Option Issuance Agreement. The Seller Parent has
not sold or assigned the Option Issuance Agreement, or sold, assigned,
terminated or, except as expressly provided in the Estoppel Agreement, waived
any of its rights under Section 4.3 of the Option Issuance Agreement. The Seller
Parent is not in Default under the Option Issuance Agreement, and, to the
Knowledge of the Seller, no grounds exist for US Airways to avoid its
obligations under Section 4.3 of the Option Issuance Agreement in the event of
termination of the First Amended US Airways ITSA pursuant to Sections 23.1(B),
23.3, 23.4, 23.5 or 23.6 thereof.
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5.9-A PERMITS
The Seller and the Selling Subsidiaries own or validly hold all
material Permits that are required in connection with the conduct of the
Additional Transferred Business or the ownership or use of the Additional
Transferred Assets. All Additional Transferred Permits owned or held by the
Seller and the Selling Subsidiaries are valid and in full force and effect. No
proceeding is pending or, to the Knowledge of the Seller, threatened which would
reasonably be expected to result in the revocation or termination of any such
Permits, and to the Knowledge of the Seller, there is no valid basis for any
such proceeding. The consummation of the transactions contemplated by this
Agreement will not affect the continued validity or effectiveness or alter the
terms and conditions of any material Additional Transferred Permits.
5.10-A LITIGATION
There is no Litigation pending, or to the Knowledge of the Seller,
threatened against or involving or arising in connection with the Additional
Transferred Assets or the Additional Transferred Business, in each case which
(i) would reasonably be expected to have, individually or in the aggregate, a
Seller Material Adverse Effect or (ii) questions or challenges the validity of
the First Amendment, this Second Amendment or the other Transaction Documents or
any action taken or to be taken by the Seller, the Seller Parent or any Selling
Subsidiary pursuant to the First Amendment, this Second Amendment or the other
Transaction Documents or the consummation of the transactions contemplated by
the First Amendment, this Second Amendment or the other Transaction Documents.
None of the Additional Transferred Business or the Additional Transferred Assets
is subject to any judgment, order or decree entered into in any lawsuit or
proceeding which, individually or in the aggregate, would reasonably be expected
to have a Seller Material Adverse Effect.
5.11-A ENVIRONMENTAL MATTERS
(a) There are no actions, suits, claims, arbitration
proceedings, or complaints related to the Additional Premises which are pending
or, to the Knowledge of the Seller, threatened against the Seller, any Selling
Subsidiary or the Additional Premises relating to environmental protection, to
the environmental condition of the Additional Premises, or to compliance with
any applicable Environmental Law.
(b) Neither the Seller nor any Selling Subsidiary has any
Knowledge that, or has received any notice that, any of the Additional Premises
is in violation of any Environmental Laws or that Hazardous Materials are
present in, at or under any of the Additional Premises other than in compliance
with Environmental Law, nor have the Seller or the Selling Subsidiaries received
any communication requesting information with respect to an investigation
pursuant to any Environmental Law. To the Knowledge of the Seller, there are no
facts, circumstances, or conditions that would require significant capital
expenditures by an owner or operator of the Additional Premises in order for the
Additional Premises or the Additional Transferred Business to maintain
compliance with Environmental Laws in the future.
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(c) The Seller and the Selling Subsidiaries have obtained and
are in material compliance with all authorizations required under Environmental
Laws in connection with the ownership, use, or lease of the Additional Premises
and the Additional Transferred Tangible Assets.
(d) The Seller and the Selling Subsidiaries have submitted all
filings, reports and notices required under Environmental Laws in connection
with the operation of the Additional Transferred Business.
(e) Neither the Seller nor any Selling Subsidiary has entered
into or received, nor is the Seller or any Selling Subsidiary in default under,
nor are any of the Additional Premises subject to, any consent decree,
compliance order, administrative order, judgment, order, writ, injunction, or
decree of any governmental authority in connection with the violation of or
compliance with any Environmental Laws relating to the Additional Premises or
the Additional Transferred Tangible Assets.
(f) No Lien has arisen or, to the Seller's Knowledge, is
threatened on or against any of the Premises under or as a result of a violation
of under any Environmental Laws or the presence of any Hazardous Materials in,
at, or under the Additional Premises.
(g) There is not now, there has not been at any time during
which the Seller or any of the Selling Subsidiaries has owned, leased or
occupied the Additional Premises in question, nor to the Knowledge of the Seller
or the Selling Subsidiaries, has there ever been, on or in any of the Additional
Premises any of the following: (i) landfills, dumps, or surface impoundments;
(ii) any remedial action involving, or on-site release of, Hazardous Materials;
(iii) any asbestos containing materials or presumed asbestos containing
materials other than in compliance with Environmental Law; (iv) any
polychlorinated biphenyls other than in compliance with Environmental Law; (v)
any release of a Hazardous Material which may have entered or leached into the
ground water and migrated under the Additional Premises, (vi) any site on or
nominated for the National Priority List promulgated pursuant to CERCLA or any
state remedial priority list promulgated or published pursuant to any comparable
state law, or (vii) any underground and/or above-ground storage tanks. All
underground or above-ground storage tanks located on or under the Additional
Premises have, if required by any applicable Environmental Law, been registered,
tested and certified in accordance with such Environmental Law and have been
operated and maintained in accordance with the manufacturer's requirements and
applicable Environmental Laws. To the Knowledge of the Seller, there are no
known asbestos containing materials or polychlorinated biphenyls present in any
of the Additional Premises.
(h) The Seller and the Selling Subsidiaries have provided the
Buyer with true and correct copies of all environmental and health and safety
related assessments, audits, investigations, sampling or similar reports in the
possession of the Seller or the Selling Subsidiaries relating to the Additional
Transferred Business or the Additional Premises.
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5.12-A TAXES
The Seller and the Selling Subsidiaries have (i) duly filed or caused
to be filed with the appropriate taxing authorities all material Tax Returns
required to be filed with respect to or attributable to the Additional
Transferred Business or the Additional Transferred Assets and all such Tax
Returns are true, correct and complete in all material respects, (ii) timely
paid or caused to be paid in full all Taxes shown to be due on such Tax Returns,
and (iii) with respect to the Additional Transferred Business and the Additional
Transferred Assets, complied in all material respects with all applicable Laws,
rules and regulations relating to the withholding of Taxes and the payment of
withheld Taxes. No deficiencies or assessments for any Taxes with respect to the
Additional Transferred Business or the Additional Transferred Assets have been
proposed, asserted or assessed which have not been resolved and paid in full, or
which are not being contested in appropriate proceedings; and there are no Liens
for Taxes upon the Additional Transferred Assets. There are no pending and, to
the Knowledge of the Seller, threatened, examinations, audits, actions,
proceedings, investigations, legal proceedings, disputes, or claims against the
Seller or any of the Selling Subsidiaries with respect to any Taxes the
underpayment or nonpayment of which could result in a claim or Lien upon the
Additional Transferred Assets or the Additional Transferred Business. No claims
have been made by any taxing authority that, as a result of the operation or
ownership of the Additional Transferred Assets or the Additional Transferred
Business, the Seller or any Selling Subsidiary is (or may be) required to either
(i) file Tax Returns in any jurisdiction in which the Seller or such Selling
Subsidiary does not already file Tax Returns or (ii) pay or remit Taxes imposed
by any jurisdiction to which the Seller or such Selling Subsidiary does not
already pay or remit Taxes.
5.13-A COMPLIANCE WITH LAWS
Except for environmental laws (for which the only representations and
warranties made by the Seller and the Seller Parent in the Second Amendment are
contained in Section 5.11-A), tax laws (for which the only representations and
warranties made by the Seller and the Seller Parent in the Second Amendment are
contained in Section 5.12-A) and export laws (for which the only representations
and warranties made by the Seller and the Seller Parent in the Second Amendment
are contained in Section 5.15-A), the Additional Transferred Business has been
and is being conducted in accordance, in all material respects, with all
applicable Laws.
5.14-A SUFFICIENCY OF TRANSFERRED ASSETS
The Transferred Assets, in conjunction with the rights, goods and
services granted, transferred or to be performed by the Seller and its
Affiliates to or for the Buyer and the Buying Subsidiaries pursuant to the other
Transaction Documents, comprise substantially all of the assets currently used
or held for use by the Seller and the Selling Subsidiaries to perform, and are
collectively sufficient to provide the Buyer and the Buying Subsidiaries with
the means and capability to perform, the obligations the Buyer and the Buying
Subsidiaries are assuming under the Assigned Customer Agreements as and in the
manner such obligations are being performed by the Seller and the Selling
Subsidiaries on the date of the Second Amendment. Without limiting the
foregoing, other than the (i) Transferred Software Licenses, (ii) intellectual
property
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to be licensed and other rights to be granted to the Buyer pursuant to the
Technology License Agreement and (iii) application development and
maintenance services to be performed by the Seller under, and any access, use
and/or management rights to be granted to the Buyer under, the Subcontracting
Agreement, there is no other intellectual property reasonably necessary for
the Buyer and the Buying Subsidiaries to perform the obligations that the
Buyer and the Buying Subsidiaries are assuming under the Assigned Customer
Agreements (except to the extent that such obligations are to be performed by
the Seller pursuant to the Subcontracting Agreement) as and in the manner
such obligations are being performed by the Seller and the Selling
Subsidiaries on the date of the Second Amendment.
5.15-A COMPLIANCE WITH EXPORT LAWS
The export licenses listed or described in Section 5.15-A of the Seller
Disclosure Schedule are the only export license documents issued or required by
any Law to be issued with respect to the Additional Transferred Business or the
Additional Transferred Assets as of the date of the Second Amendment, and each
of the Seller and the Selling Subsidiaries currently holds and is in compliance
in all material respects with such export licenses, if any, listed with respect
to such Person. Each of the Seller and the Selling Subsidiaries also is in
compliance in all material respects with the general export licenses it relies
upon with respect to the Additional Transferred Business.
5.16-A PERSONNEL AGREEMENT.
The Seller and American Airlines, Inc. have entered into that certain
Personnel Agreement, dated as of June 28, 2001 (the "PERSONNEL AGREEMENT"), and
the transfer of personnel from Sabre to American contemplated by the Personnel
Agreement has been completed effective as of July 1, 2001.
5.17-A NO OTHER REPRESENTATIONS OR WARRANTIES
Except for the representations and warranties contained in this Article
V-A, Article V or in the other Transaction Documents, neither the Seller, the
Seller Parent nor any other Person makes any express or implied representation
or warranty on behalf of the Seller, the Seller Parent or the Selling
Subsidiaries, and the Seller and the Seller Parent hereby disclaim any such
representation or warranty whether by the Seller, the Seller Parent or any of
their Affiliates, officers, directors, employees, agents or representatives or
any other Person.
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▇▇▇▇▇▇▇▇ ▇
ARTICLE VI-A
ADDITIONAL REPRESENTATIONS AND WARRANTIES OF BUYER AND BUYER PARENT
Except as set forth in the Buyer Disclosure Schedule, the Buyer and the
Buyer Parent jointly and severally represent and warrant to the Seller and the
Seller Parent as of the date of the Second Amendment as follows:
6.1-A POWER; AUTHORITY; ENFORCEABLE OBLIGATIONS
The Buyer Parent has full corporate power and authority to enter into
and perform its obligations under the First Amendment and the Second Amendment
and to carry out the transactions contemplated by the First Amendment and the
Second Amendment. The Buyer has full limited liability company power and
authority to enter into and perform its obligations under the First Amendment
and the Second Amendment and to carry out the transactions contemplated by the
First Amendment and the Second Amendment. Each of the Buyer and the Buyer Parent
has taken all action required by Law, its certificate of incorporation and
bylaws (or other formation and governance documents) or otherwise to authorize
the execution and delivery of the First Amendment and the Second Amendment, the
performance by the Buyer and the Buyer Parent of their respective obligations
under the First Amendment and the Second Amendment and the consummation by the
Buyer and the Buyer Parent of the transactions contemplated by the First
Amendment and the Second Amendment. Each of the First Amendment and the Second
Amendment has been duly executed and delivered by the Buyer and the Buyer
Parent. Each of the First Amendment and the Second Amendment is a valid and
binding agreement of the Buyer and the Buyer Parent enforceable against the
Buyer and the Buyer Parent in accordance with its terms, except as such
validity, binding effect or enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, receivership, conservatorship,
fraudulent transfer, moratorium (whether general or specific) or other Law now
or hereafter in effect affecting the enforceability of creditors rights
generally, and except that the availability of equitable remedies, such as
specific performance or injunctive relief, are subject to the discretion of the
court before which any proceeding may be brought.
6.2-A NO CONFLICTS
None of the (1) execution or delivery by the Buyer or the Buyer Parent
of the First Amendment or the Second Amendment, (2) performance by the Buyer or
the Buyer Parent of its obligations under the First Amendment or the Second
Amendment or (3) consummation by the Buyer, the Buyer Parent or any Buying
Subsidiary of the transactions contemplated by the First Amendment or the Second
Amendment will: (i) require the Buyer, the Buyer Parent or any Buying Subsidiary
to obtain the Consent of, or deliver any notice, filing or application to, any
governmental, administrative or regulatory authority (whether federal, state,
local or foreign) or any other Person with respect to the transfer of the
Additional Transferred Assets, the assumption of the Additional Assumed
Liabilities, or the performance of any obligations under any other
Transaction Document, other than (x) filings pursuant to the HSR Act or any
similar Law, (y) the Consents identified under the heading "Additional
Consents" in Section 6.3 of the Buyer Disclosure Schedule ("ADDITIONAL BUYER
CONSENTS") and (z) compliance with any state bulk sales law, any factory
closing law or any similar Law; (ii) conflict with or result in any violation
of any provision of the certificate or articles of incorporation or bylaws
(or other formation or governance documents), each as amended to date, of the
Buyer, the Buyer Parent or any Buying Subsidiary, or (iii) violate any term
of any Law applicable to the Buyer, the Buyer Parent or any Buying Subsidiary
or any of their respective properties or assets (but in no event does the
Buyer or the Buyer Parent make any representation or warranty under the First
Amendment or this Second Amendment regarding non-infringement of any
intellectual property rights).
6.3-A NO OTHER REPRESENTATIONS OR WARRANTIES
Except for the representations and warranties contained in this Article
VI-A, Article VI or in the other Transaction Documents, neither the Buyer, the
Buyer Parent nor any other Person makes any express or implied representation or
warranty on behalf of the Buyer or the Buyer Parent, and the Buyer and the Buyer
Parent hereby disclaim any such representation or warranty whether by the Buyer,
the Buyer Parent or any of their Affiliates, directors, officers, employees,
agents or representatives or any other Person.
