Exhibit 99.2
ASSET PURCHASE AGREEMENT
By and Among
XXXX INDUSTRIES, INC.,
XXXX ENCLOSURES, INC.,
XXXX, INC.,
XXXX CONSTRUCTION, INC.,
XXXX PRODUCTS, INC.,
XXXX INSTALLATION SERVICES, INC.,
and
FOGSON, L.L.C.
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Dated as of December 31, 2002
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE I PURCHASE AND SALE OF ASSETS.....................................2
Section 1.1 Sale and Transfer of Assets.........................2
Section 1.2 Retained Assets.....................................3
Section 1.3 Assignability and Consents..........................3
ARTICLE II LIABILITIES.....................................................4
Section 2.1 Liabilities.........................................4
ARTICLE III PURCHASE PRICE...........................................5
Section 3.1 Payment.............................................6
Section 3.2 Purchase Price Allocation...........................6
ARTICLE IV CLOSING.........................................................6
Section 4.1 General.............................................6
Section 4.2 Documents to be Delivered by Sellers................6
Section 4.3 Documents to be Delivered by Buyer..................7
ARTICLE V REPRESENTATIONS AND WARRANTIES..................................8
Section 5.1 Representations and Warranties of Sellers...........8
Section 5.2 Representations and Warranties of Buyer............18
Section 5.3 General............................................19
ARTICLE VI COVENANTS OF SELLERS...........................................19
Section 6.1 Maintenance of, and Access to, Records.............19
Section 6.2 Accounts Receivable................................19
Section 6.3 Plant Closing Obligations..........................20
Section 6.4 Further Assurances.................................20
ARTICLE VII CERTAIN ADDITIONAL COVENANTS...................................20
Section 7.1 Expenses; Transfer Taxes...........................20
Section 7.2 Press Releases and Disclosure......................20
Section 7.3 Defense of Claims..................................21
Section 7.4 Employee Matters...................................21
Section 7.5 License to Alabama and Illinois Facilities.........21
Section 7.6 Technical Support..................................21
Section 7.7 Existing Leases....................................21
ARTICLE VIII INDEMNIFICATION................................................22
Section 8.1 Indemnification by Buyer...........................22
Section 8.2 Indemnification by Sellers.........................22
Section 8.3 Notice of Claim; Right to Participate in and
Defend Third Party Claim...........................24
Section 8.4 Setoff.............................................24
Section 8.5 Time Limitations on Claims for Indemnification.....24
Section 8.6 Maximum and De Minimis Amounts; Recoveries
Limited............................................25
Section 8.7 Exclusions.........................................25
Section 8.8 Insurance..........................................25
ARTICLE IX MISCELLANEOUS..................................................26
Section 9.1 Amendments.........................................26
Section 9.2 Entire Agreement...................................26
Section 9.3 Governing Law......................................26
Section 9.4 Severability.......................................26
Section 9.5 Forum Selection and Consent to Jurisdiction........26
Section 9.6 Waiver of Jury Trial...............................26
Section 9.7 Notices............................................27
Section 9.8 Counterparts.......................................28
Section 9.9 Assignment.........................................28
Section 9.10 Waivers............................................28
Section 9.11 Schedules..........................................28
Section 9.12 Headings...........................................28
Section 9.13 Certain Definitions................................28
Section 9.14 Remedies Not Exclusive.............................29
Section 9.15 Gender and Number..................................29
Section 9.16 Third Parties......................................29
SCHEDULES
Schedule 1.1 Acquired Assets
Schedule 1.3 Required Consents
Schedule 3.2 Purchase Price Allocation
Schedule 5.1(c) Conflicts; Defaults
Schedule 5.1(d) Liens
Schedule 5.1(g) Inventories
Schedule 5.1(h) Litigation
Schedule 5.1(i) Regulatory Compliance
Schedule 5.1(k) Permits
Schedule 5.1(l) Environmental and Safety Compliance
Schedule 5.1(m) Taxes
Schedule 5.1(n) Insurance
Schedule 5.1(o) Approvals
Schedule 5.1(q) Warranties
Schedule 5.1(u) Employee Benefit Plans
Schedule 7.5 Terms of License
TABLE OF DEFINED TERMS
DEFINED TERM SECTION
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Accounts Receivable 1.1(a)
Acquired Assets 1.1
Affiliate 9.13(a)
Agreement Preamble
Borrowers Preliminary Statements
Business Preliminary Statements
Business Records 1.1(b)
Buyer Preamble
Buyer Indemnified Parties 8.2(II)
Closing 4.1
Closing Date 4.1
Code 3.2
Consents 1.3(a)
Covered Claim 8.2(IV)
Credit Agreement Preliminary Statements
Damages 8.1
Environmental Conditions 5.1(l)(v)(A)(1)
Environmental Laws 5.1(l)(i)
ERISA 5.1(d)
ERISA Affiliate 5.1(u)(i)
ERISA Event 5.1(u)(iii)
Existing Leases 5.1(e)
Fee Property 1.1(a)
Fixed Assets 1.1(a)
Governmental Authorities 1.1(d)
Governmental Authority 1.1(d)
Hazardous Materials 5.1(l)(v)(A)(2)
Inventories 1.1(a)
Inventory 1.1(a)
Laws 2.1(d)
Lenders Preliminary Statements
Liabilities 2.1
Liens 4.2(b)
Loans 3.1
Multiemployer Plan 5.1(u)(iii)
Nonassignable Items 1.3(b)
Parent Preamble
PBGC 5.1(u)(iii)
Pension Plan 5.1(u)(iii)
Permits 1.1(d)
Permitted Liens 5.1(d)
Person 1.3(a)
Plan 5.1(u)
Plans 5.1(u)
Proratable Items 5.1(m)
Purchase Price 3.1
Release 5.1(l)(v)(A)(3)
Reportable Event 5.1(u)(iii)
XXXX Construction Preamble
XXXX Enclosures Preamble
XXXX Installation Preamble
XXXX Products Preamble
XXXX Sub Preamble
Seller Preamble
Sellers Preamble
Settlement Agreement 4.2(h)
Site 5.1(l)(v)(A)(4)
Subject Property See Schedule 7.5(b)
Tax 5.1(m)
Taxes 5.1(m)
Third Party Claim 8.3(a)
Threshold Amount 8.6(b)
Title Insurance Policies 4.2(g)
Transaction Documents 5.1(a)
WARN 2.1(h)
ASSET PURCHASE AGREEMENT
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THIS ASSET PURCHASE AGREEMENT (this "Agreement") dated as of
December 31, 2002, is among XXXX Industries, Inc., a Delaware corporation
("Parent"), XXXX Enclosures, Inc., an Arizona corporation ("XXXX
Enclosures"), XXXX, Inc., an Alabama corporation ("XXXX Sub"), XXXX
Construction, Inc., a Texas corporation ("XXXX Construction"), XXXX
Products, Inc., an Indiana corporation ("XXXX Products"), XXXX Installation
Services, Inc., a Delaware corporation ("XXXX Installation", and together
with Parent, XXXX Xxxxxxxxxx, XXXX Xxx, XXXX Construction and XXXX
Products, each a "Seller" and collectively the "Sellers"), and Fogson,
L.L.C., a Delaware limited liability company ("Buyer").
PRELIMINARY STATEMENTS:
----------------------
A. Sellers presently conduct business at 0000 X. Xxxxx Xxxx, Xxxxxx,
Xxxxxxxx 00000, 0000 X. Xxxxxxxxx Xxxxxx, Xxxx Xxxxxx, Xxxxxxx 00000, 0000
Xxxx Xxxxx Xxxx 00, Xxxxxxxxx, Xxxxxxx 00000, and 0000 Xxxxxxxxxx
Xxxxxxxxx, Xxxxxxxx, Xxxxxxx 00000 (as so operated by Sellers, the
"Business").
X. Xxxxxxx are parties to the Credit Agreement dated as of March 8,
2001 (as amended, restated, supplemented or otherwise modified through the
date hereof, the "Credit Agreement"), among Parent and certain of its
domestic subsidiaries, including the other Sellers, as borrowers
(collectively, the "Borrowers"), LaSalle Bank National Association, as
administrative agent, and the lenders party thereto (the "Lenders"), under
which the Lenders provided the Borrowers with a credit facility.
C. Due to violations of Credit Agreement covenants by the Borrowers,
an Event of Default has existed under the Credit Agreement since April 30,
2002.
D. The Lenders have agreed to contribute a specified amount of
indebtedness under the Credit Agreement to Buyer, which Buyer is willing to
convey to Sellers in exchange for certain assets of the Business (as more
specifically detailed herein).
E. Accordingly, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration had
and received, Buyer and Sellers, on the basis of, and in reliance on, the
representations, warranties, covenants, obligations and agreements set
forth in this Agreement, and upon the terms and subject to the conditions
contained herein, hereby agree as follows:
AGREEMENT:
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ARTICLE I
PURCHASE AND SALE OF ASSETS
Section 1.1 Sale and Transfer of Assets. At the Closing (as
hereinafter defined) and effective as of the Closing Date (as hereinafter
defined), Buyer shall purchase and acquire from Sellers, and Sellers shall
sell, transfer, convey, assign and deliver to Buyer, all of the following
assets, properties, rights and interests owned, used, occupied or held by
or for the benefit of Sellers in the operation of the Business:
(a) Acquired Assets. All of the assets listed on Schedule 1.1
including, without limitation, the accounts receivable (the accounts
receivable set forth thereon, the "Accounts Receivable"), inventory
(the inventory set forth thereon, the "Inventory" or "Inventories"),
fixed assets (the fixed assets set forth thereon, the "Fixed Assets"),
and real property rights and interests, which rights and interests are
deemed to include (i) the land more particularly described on such
schedule, which descriptions are incorporated herein by reference,
(ii) all buildings, structures, and leasehold improvements located
thereon and all appurtenances relating thereto, and (iii) all fixtures
affixed to said premises, including, without limitation, all of the
electrical, heating, plumbing, air conditioning, air compression and
all other systems located on said premises, and all other structures,
fences and improvements (all such real property rights and interests,
the "Fee Property"), set forth thereon, provided, however that
inventory or accounts receivable not in excess of $20,000 in the
aggregate set forth thereon sold at fair market value or paid in full,
respectively, in the ordinary course of business in accordance with
past practice prior to the Closing Date shall not be included in the
Acquired Assets.
(b) Business Records. All books and records relating to the
Acquired Assets (as hereinafter defined), including, without
limitation, all files, invoices, forms, accounts, correspondence,
production records, technical, accounting, manufacturing and
procedural manuals, employment records, studies, reports or summaries
relating to any Environmental Laws (as hereinafter defined), and other
books and records relating to the Acquired Assets, and any
confidential information which has been reduced to writing or other
tangible medium relating to or arising out of the Business and
relating to the Acquired Assets but not including books and records
relating to taxes (collectively, the "Business Records");
(c) Rights Under Warranties. All rights, claims and benefits of
any Seller in, to or under any express or implied warranties from the
suppliers of goods or services included in the Acquired Assets
(including any coverage rights under product liability or other
insurance maintained by any of such suppliers for the benefit of any
Seller);
(d) Permits. All licenses, permits, approvals, variances, waivers
or consents (collectively, the "Permits"), to the extent transferable,
issued by any foreign, United States, state or local governmental
entity or municipality or subdivision thereof or any authority,
department, commission, board, bureau, agency, court or
instrumentality (each a "Governmental Authority" and collectively
"Governmental Authorities") and used in or necessary to the operation
of the Acquired Assets; and
(e) Insurance. All rights, claims and benefits of any Seller in,
to or under all insurance policies maintained by such Seller for or
related to the Acquired Assets with respect to such Acquired Assets.
All of the assets, properties, rights and interests owned, used, occupied
or held by or for the benefit of Sellers in the operation of the Business
that are to be sold, transferred, conveyed, assigned and delivered by
Sellers to Buyer at the Closing as contemplated herein are referred to
herein collectively as the "Acquired Assets".
Section 1.2 Retained Assets. Buyer shall in no way be construed to
have purchased or acquired (or to be obligated to purchase or to acquire)
any interest whatsoever in any assets not described in Section 1.1.
Section 1.3 Assignability and Consents.
(a) Required Consents. Schedule 1.3 sets forth a list of all
Acquired Assets, including Permits, which are nonassignable or
nontransferable or cannot be subleased to Buyer without the consent of
some other individual, partnership, corporation, association, joint
stock company, trust, joint venture, limited liability company, entity
or Governmental Authority (each, a "Person"). Sellers have commenced
and shall continue to take, or cause to be taken by others, all
necessary actions reasonably required to obtain or satisfy, at the
earliest practicable date, all consents, novations, approvals,
authorizations, requirements (including filing and registration
requirements), waivers and agreements ("Consents") from any Persons
necessary to authorize, approve or permit the full and complete sale,
conveyance, assignment, sublease or transfer of the Acquired Assets,
and to consummate and make effective the transactions contemplated by
this Agreement and to continue such efforts as may be required after
the Closing Date to facilitate the full and expeditious transfer of
legal title, or the sublease, as the case may be, of the Acquired
Assets.
(b) Nonassignable Items. Anything in this Agreement to the
contrary notwithstanding, this Agreement shall not constitute an
agreement to sell, convey, assign, sublease or transfer any Acquired
Assets, including Permits, if an attempted sale, conveyance,
assignment, sublease or transfer thereof, without the Consent of
another party thereto or a Governmental Authority would constitute a
breach of, or in any way affect the rights of any Seller or Buyer with
respect to such Acquired Asset ("Nonassignable Items"). Each Seller
shall use its reasonable best efforts and Buyer shall cooperate in all
reasonable respects with Sellers to obtain and satisfy all Consents
and to resolve all impracticalities of sale, conveyance, assignment,
sublease or transfer necessary to convey to Buyer all Nonassignable
Items. If any such Consents are not obtained and satisfied or if an
attempted sale, conveyance, assignment, sublease or transfer would be
ineffective, Sellers and their appropriate Affiliates shall at the
Closing enter into such arrangements (including related written
agreements) as Buyer may reasonably request to fairly compensate Buyer
for the loss of, or to provide to Buyer the benefit of, any such
Nonassignable Items (it being acknowledged that such arrangement may
include obligations imposed on Sellers and such Affiliates promptly to
pay to Buyer when received all monies and other items of value
received by Sellers and such Affiliates under any such Nonassignable
Item).
ARTICLE II
LIABILITIES
Section 2.1 Liabilities. Sellers shall retain, and Buyer shall not
assume, or be responsible or liable with respect to, any liabilities or
obligations of, any Seller, or otherwise relating to the Business or any
present or former owner, operator thereof, whether or not of, associated
with, or arising from, any of the Acquired Assets, and whether fixed,
contingent or otherwise, known or unknown, relating to, based in whole or
in part on events or conditions occurring or existing in connection with,
or arising out of, the Business, or the ownership, possession, use,
operation or sale or other disposition prior to the Closing Date of any of
the Acquired Assets (or any other assets, properties, rights or interests
associated with the Business). In addition, Sellers shall retain and Buyer
shall not assume, or be responsible or liable with respect to, any or all
of the following liabilities or obligations:
(a) Liabilities Relating to the Sale of Acquired Assets. All
liabilities and obligations of any Seller or any of its Affiliates, or
their respective directors, officers, shareholders or agents, arising
out of, or relating to, this Agreement or the transactions
contemplated hereby, whether incurred prior to, at, or subsequent to
the Closing Date, including, without limitation, all finder's or
broker's fees and expenses, and any and all fees and expenses of any
attorneys, accountants or other professionals retained by or on behalf
of any Seller or any of its Affiliates;
(b) Employee-Related Liabilities. All liabilities and obligations
to any persons at any time employed by any Seller or its Affiliates or
their respective predecessors-in-interest in the Business at any time
or to any such person's spouses, children, other dependents or
beneficiaries, with respect to incidents, events, exposures or
circumstances occurring at any time during the period or periods of
any such persons' employment by any Seller or its Affiliates or their
respective predecessors-in-interest, whenever such claims mature or
are asserted, including, without limitation, all liabilities and
obligations arising (i) under any Plans (as hereinafter defined), (ii)
under any employment, wage and hour restriction, equal opportunity,
discrimination, plant closing or immigration and naturalization laws,
(iii) under any collective bargaining Laws, agreements or
arrangements, or (iv) in connection with any workers' compensation or
any other employee health, accident, disability or safety claims;
(c) Litigation. All liabilities and obligations relating to any
litigation, action, suit, claim, investigation or proceeding pending
on the date hereof, or constituted hereafter, based in whole or in
part on events or conditions occurring or existing in connection with,
or arising out of, or otherwise relating to, the Business as operated
by any Seller or any of its Affiliates (or any of their respective
predecessors-in-interest), or the ownership, possession, use,
operation, sale or other disposition prior to the Closing Date of any
of the Acquired Assets (or any other assets, properties, rights or
interests associated, at any time prior to the Closing Date, with the
Business);
(d) Product, Environmental and Safety Liability. All liabilities
and obligations relating to the Business or the Acquired Assets (or
any other assets, properties, rights or interests associated, at any
time prior to the Closing Date, with the Business or the Acquired
Assets), based in whole or in part on events or conditions occurring
or existing prior to the Closing Date and connected with, arising out
of or relating to (i) any dispute for services rendered or goods
manufactured, including, without limitation, product warranty claims
and product liability claims, and claims for refunds, returns,
personal injury and property damage, (ii) Hazardous Materials,
Environmental Laws or Environmental Conditions (all as hereinafter
defined), (iii) claims relating to employee health and safety,
including claims for injury, sickness, disease or death of any Person,
or (iv) compliance with any statutes, laws, rules, judgments,
regulations, orders, ordinances, codes or decrees of Governmental
Authorities (collectively, "Laws") relating to any of the foregoing;
(e) Taxes. All liabilities and obligations of any Seller or any
of its Affiliates (or any of their respective
predecessors-in-interest) for any Taxes (as hereinafter defined) due
or becoming due by reason of (i) the conduct of the Business on or
prior to the Closing Date, or (ii) the ownership, possession, use,
operation, purchase or acquisition of any of the Acquired Assets on or
prior to the Closing Date other than sales of an Acquired Asset by
Buyer after the Closing or (iii) the sale of the Acquired Assets to
Buyer;
(f) Breach of Agreement. All liabilities and obligations, known
or unknown, fixed, contingent or otherwise, the existence of which is
a breach of, or inconsistent with, any representation, warranty,
covenant, obligation or agreement of any Seller set forth in this
Agreement or in any of the other documents or agreements contemplated
hereby;
(g) Post-Closing Date. All liabilities and obligations incurred
by any Seller or its Affiliates or their respective directors,
officers, shareholders, agents or employees after the Closing Date; or
(h) Shutdown Costs. Any liabilities or obligations relating to,
based in whole or in part on events or conditions occurring or
existing in connection with, or arising out of, the shutdown of any of
the operations and facilities utilized by any Seller in connection
with the Business, including, without limitation, any action which
could be construed as a "plant closing" or "mass layoff," as those
terms are defined in the Worker Adjustment and Retraining Notification
Act, 29 U.S.C. xx.xx. 2101-2109 ("WARN"), or any "employment loss," as
defined in WARN, which any employee of any Seller or any of its
Affiliates may suffer or may be deemed to suffer.
All of the liabilities and obligations referenced in this Section 2.1,
including in the first sentence hereof, are referred to herein collectively
as the "Liabilities".
ARTICLE III
PURCHASE PRICE
Section 3.1 Payment. In full consideration for the transfer of the
Acquired Assets, at the Closing Buyer shall transfer to Sellers an
aggregate principal amount of $7,398,191 of outstanding principal amount of
Loans (as defined in the Credit Agreement) (the "Purchase Price"), which
transfer shall be deemed effected by execution and delivery of the Notes
(as defined in the Amended and Restated Credit Agreement, dated as of the
date hereof, among Sellers, LaSalle Bank National Association, the lenders
party thereto and the other parties party thereto).
Section 3.2 Purchase Price Allocation. The Purchase Price represents
the amount agreed upon by the parties to be the aggregate value of the
Acquired Assets, and shall be allocated among the Acquired Assets in
accordance with Section 1060 of the Internal Revenue Code of 1986, as
amended (the "Code") and the applicable Treasury Regulations thereunder, on
the basis of the fair market values of the Acquired Assets, which the
parties have agreed are or shall be as set forth on Schedule 3.2. Each of
the parties shall report the purchase and sale of the Acquired Assets,
including, without limitation, in all federal, foreign, state, local and
other Tax returns and reports prepared and filed by or for any Seller or
Buyer, in accordance with the basis of allocation of the Purchase Price
described in this Section 3.2, and no party shall take any position with
any taxing authority that is inconsistent with the purchase and sale being
a fully taxable transaction with the Purchase Price allocated as described
in this Section 3.2.
ARTICLE IV
CLOSING
Section 4.1 General. As used in this Agreement, the "Closing" shall
mean the time at which Sellers consummate the sale, assignment, transfer
and delivery of the Acquired Assets to Buyer as provided herein by the
execution and delivery by Sellers of the documents and instruments referred
to in Section 4.2 against delivery by Buyer of the documents and payments
provided in Sections 3.1 and 4.3. The Closing shall take place at the
offices of Xxxxx, Day, Xxxxxx & Xxxxx, 00 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, at 10:00 A.M. Central time on December 31, 2002 (the
"Closing Date"). Legal title, equitable title and risk of loss with respect
to the Acquired Assets shall not pass to Buyer until the Acquired Assets
are transferred at the Closing, which transfer, once it has occurred, shall
be deemed effective for tax, accounting and other computational purposes as
of the Closing.
Section 4.2 Documents to be Delivered by Sellers. At the Closing,
Sellers shall deliver to Buyer:
(a) Copies of (i) the resolutions of the Boards of Directors and
controlling shareholder of each Seller, authorizing and approving this
Agreement and all other transactions and agreements contemplated
hereby, (ii) each Seller's respective Articles or Certificates of
Incorporation, and (iii) each Seller's respective Bylaws, all
certified by the respective corporate Secretary or Assistant Secretary
of such Seller to be true, correct, complete and in full force and
effect and unmodified as of the Closing Date;
(b) A xxxx of sale transferring the Acquired Assets to Buyer,
free and clear of any and all liens, equities, claims, prior
assignments, mortgages, charges, security interests, pledges,
conditional sales contracts, collateral security arrangements and
other title retention arrangements, restrictions (including, in the
case of real property, rights of way, use restrictions, and other
variances, reservations or limitations of any nature) or encumbrances
whatsoever (collectively, "Liens") other than Permitted Liens (as
hereinafter defined);
(c) Good standing and tax certificates for each Seller (other
than Xxxx Construction) from its jurisdiction of incorporation and, in
the case of Parent, the State of Illinois, dated not more than ten
business days prior to the Closing;
(d) An incumbency certificate of the officers of each Seller;
(e) A deed or deeds of general warranty in recordable form
conveying the Fee Property to Buyer, free and clear of all Liens
whatsoever except for Permitted Liens;
(f) At Sellers' expense, good and valid title insurance policies
or, in final form, irrevocable title insurance commitments issued by
Chicago Title Insurance Company (the "Title Insurance Policies"),
dated as of the Closing Date, insuring Buyer's title as fee owner in
each parcel of real property included in the Fee Property, access
rights to such property and specific survey facts, if any, free and
clear of all Liens and other exceptions (including mechanics' liens)
other than Permitted Liens;
(g) An executed counterpart by Parent of a Settlement Agreement
between Parent and Buyer pertaining to the real property located at
0000 X. Xxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000 (the "Settlement
Agreement");
(h) each Seller that transfers real property that is a United
States real property interest (as defined in Section 897 of the Code)
shall have furnished to Buyer on or before the Closing Date a
Non-foreign Person affidavit as required by Section 1445 of the Code;
(i) Releases, including, without limitation, termination
statements under the Uniform Commercial Code of any financing
statements filed against any Acquired Assets, evidencing discharge,
removal and termination of all Liens to which the Acquired Assets are
subject, other than Permitted Liens, which releases shall be effective
at or prior to the Closing; and
(j) Such other deeds, bills of sale, certificates of title,
endorsements, assignments, affidavits, and other good and sufficient
instruments of sale, assignment, conveyance and transfer (including,
without limitation, all affidavits, releases and other instruments
necessary for the issuance of the Title Insurance Policies) in form
and substance satisfactory to Buyer and its counsel, as are required
to effectively vest in Buyer good and valid (and in the case of real
property, marketable) title in and to all of the Acquired Assets, free
and clear of any and all Liens other than Permitted Liens.
Section 4.3 Documents to be Delivered by Buyer. At the Closing, Buyer
shall deliver to Sellers:
(a) A copy of (i) the resolutions of the members of Buyer
authorizing and approving this Agreement and all other transactions
and agreements contemplated hereby, (ii) Buyer's Certificate of
Formation, and (iii) Buyer's Limited Liability Company Agreement, all
certified by the Manager of Buyer to be true, correct, complete and in
full force and effect and unmodified as of the Closing Date;
(b) Evidence of the delivery of the Purchase Price;
(c) Good standing certificates for Buyer from the Secretary of
State of Delaware, dated not more than ten business days prior to the
Closing; and
(d) Buyer's executed counterpart of the Settlement Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.1 Representations and Warranties of Sellers. Subject only to
those exceptions and qualifications listed and described on the Schedules
attached to this Agreement, Sellers, jointly and severally, hereby
represent and warrant to Buyer that:
(a) Organization and Standing; Power and Authority. Each Seller
is a corporation duly organized, validly existing and (except with
respect to Xxxx Construction) in good standing under the laws of the
state of its incorporation as set forth in the preamble to this
Agreement. Each Seller has full corporate power and authority to
operate the Business, to own or lease the Acquired Assets, to carry on
the Business as now being conducted, and to enter into and perform
this Agreement and the transactions and other agreements and
instruments contemplated by this Agreement. Each Seller is duly
qualified or licensed to do business as a foreign corporation and is
in good standing in each jurisdiction in which the ownership or lease
of the Acquired Assets or the operation of the Business requires such
qualification. This Agreement and all other agreements and instruments
executed and delivered or to be executed and delivered by any Seller
in connection herewith (collectively, the "Transaction Documents")
have been, or upon execution thereof will be, duly executed and
delivered by such Seller, as the case may be. This Agreement and the
transactions and other agreements and instruments contemplated hereby
have been duly approved by the Board of Directors and controlling
shareholder of each Seller, and constitute the valid and binding
obligations of each Seller, enforceable in accordance with their
respective terms.
(b) Articles and Bylaws. The copies of the Certificate or
Articles of Incorporation of each Seller, certified by the Secretary
of State of such Seller's state of incorporation, and the Bylaws of
each Seller, provided to Buyer are true, correct and complete.
(c) Conflicts; Defaults. Except as set forth on Schedule 5.1(c),
neither the execution and delivery of this Agreement and the other
agreements and instruments executed or to be executed in connection
herewith by any Seller, nor the performance by any Seller of the
transactions contemplated hereby or thereby, will (i) violate,
conflict with, or constitute a default under, any of the terms of any
Seller's Certificate or Articles of Incorporation, Bylaws, or violate
or conflict with in any material respect or constitute a material
default under any provisions of, or result in the acceleration of any
obligation under, any contract, sales commitment, license, purchase
order, security agreement, mortgage, note, deed, lien, lease,
agreement or instrument, or any order, judgment or decree, relating to
the Business or the Acquired Assets, or by which any Seller or the
Acquired Assets are bound, (ii) result in the creation or imposition
of any Liens in favor of any third Person upon any of the Acquired
Assets, (iii) violate any Law, (iv) constitute an event that, after
notice or lapse or time or both, would result in a material violation,
conflict, default, acceleration, or creation or imposition of a Lien,
or (v) constitute an event that, after notice of lapse of time or
otherwise would create, or cause to be exercisable or enforceable, any
option, agreement or right of any kind to purchase any of the Acquired
Assets. Except as set forth on Schedule 5.1(c), no consent, novation,
approval, filing or authorization will be required to be obtained or
satisfied for the continued performance by Buyer following the Closing
of any contract, agreement, commitment or undertaking included in the
Acquired Assets. No Seller is in violation of or in default under its
Certificate or Articles of Incorporation or Bylaws. Except as set
forth on Schedule 5.1(c), no Seller is in violation in any material
respect of or in material breach of any provision of any contract,
sales commitment, license, purchase order, security agreement,
mortgage, note, deed, lien, lease, agreement or instrument, or any
order, judgment or decree, relating to the Business or the Acquired
Assets, or by which any Seller or the Acquired Assets is bound, or in
the payment of any of Seller's monetary obligations or debts relating
to the Business, and there exists no condition or event which, after
notice or lapse of time or both, would result in any such violation or
default.
(d) Acquired Assets; Title to the Acquired Assets. All of the
Acquired Assets are in good operating condition and repair, subject to
normal wear and tear consistent with the age of the properties or
assets, and are adequate and sufficient for the uses to which they are
put in the Business. None of the Acquired Assets has any material
defects or are in need of maintenance or repair, except for ordinary,
routine maintenance and repairs which are not material in nature or
cost. Sellers have good and valid title to, and the valid and
enforceable power and unqualified right to use and transfer to Buyer,
each of the Acquired Assets, including, without limitation, all dies,
molds or other tooling or equipment included in the Acquired Assets,
wherever located, and the Acquired Assets are free and clear of all
Liens of any kind or nature whatsoever, except for Permitted Liens.
The consummation of the transactions contemplated by this Agreement
(including, without limitation, the transfer or assignment of the
Acquired Assets, and all rights and interests therein, to Buyer as
contemplated herein) will not adversely affect such title or rights,
or any terms of the applicable agreements (whether written or oral)
evidencing, creating or granting such title or rights. None of the
Acquired Assets are subject to, or held under, any lease (other than
the Existing Lease (as hereinafter defined)), mortgage, security
agreement, conditional sales contract or other title retention
agreement (in each case, other than in favor of members of Buyer), or
are other than in the sole possession and under the sole control of
Sellers. The delivery to Buyer of the instruments of transfer of
ownership contemplated by this Agreement will vest good and valid
(and, in the case of the Fee Property, marketable) title to the
Acquired Assets in Buyer, free and clear of all Liens of any kind or
nature whatsoever, except for (i) Liens arising by operation of law
that are, individually or in the aggregate, of immaterial amount
(other than Taxes not included in clause (ii) hereof), other than
under the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or section 412 of the Code, (ii) Liens for current taxes,
assessments, or governmental charges or levies on property not due and
payable as of the Closing Date, (iii) Liens in favor of the
administrative agent and the Lenders under the Credit Agreement, (iv)
with respect to real property, the Existing Leases (as defined below),
any zoning, building codes, and other land use laws regulating the use
or having jurisdiction over real property that do not, individually or
in the aggregate, have a material impact on the use or value of such
property, (v) with respect to real property, any easements, covenants,
conditions, restrictions, or similar matters of record affecting title
to such property that would not or do not impair the use or occupancy
of such property in its current use and operation and (vi) Liens set
forth on Schedule 5.1(d) (the Liens described in clauses (i) through
(vi) being collectively referred to herein as "Permitted Liens").
(e) Real Property. Neither the whole nor any portion of any Fee
Property has been condemned, requisitioned or otherwise taken by any
Governmental Authority, and, to the best of Sellers' knowledge, no
such condemnation, requisition or taking is threatened or
contemplated. All buildings, structures, fixtures and appurtenances
comprising part of the Fee Property are in good condition and have
been well maintained, normal wear and tear excepted. Sellers have
delivered to Buyer true and complete copies of any leases or occupancy
agreements currently encumbering the Fee Property (the "Existing
Leases").
(f) Accounts Receivable; Collection; Trade Payables. All Accounts
Receivable outstanding as of the Closing Date represent sales actually
made in the ordinary and normal course of business. To the Sellers'
knowledge, there are no counterclaims or setoffs against (or any basis
therefor), or any other matter or condition likely to interfere with
full and timely collection of, any of such outstanding Accounts
Receivable. Schedule 1.1 sets forth an aged listing by customer of the
Accounts Receivable that are outstanding as of December 19, 2002.
(g) Inventories. Except as set forth on Schedule 5.1(g), all of
the Inventories are of a quality and quantities usable or salable in
the ordinary and normal course of business, and there are no damaged
or obsolete items or items of below standard quality included therein.
The value for the Inventory stated on Schedule 1.1 reflects the value
on a first-in, first-out basis and reflects writeoffs or writedowns
for damaged or obsolete items, or items of below standard quality, in
accordance with the historical inventory policy and practices of
Sellers.
(h) Litigation. Except as set forth on Schedule 5.1(h), no Seller
is subject to any order of, or written agreement or memorandum or
understanding with, any Governmental Authority relating to the
Business, and there exists no material litigation, action, suit, claim
or proceeding pending, or, to the best of Sellers' knowledge, any
litigation, action, suit, investigation, claim or proceeding
threatened against or affecting any Seller, the Business or the
Acquired Assets, or any employee associated with the Business or the
Acquired Assets, or which would affect the transactions contemplated
by this Agreement, at law or in equity or before any Governmental
Authority, including, without limitation, claims for product warranty,
product liability, antitrust, unfair competition, price discrimination
or other liability or obligation relating to products of the Business,
whether manufactured or sold by any Seller, any of their Affiliates or
any of their respective predecessors-in-interest in respect of the
Business, or which would adversely affect the transactions
contemplated by this Agreement, and, to the Sellers' knowledge, no one
has grounds to assert any such litigation, action, suit, claim or
proceeding. Set forth on Schedule 5.1(h) is a description of (i) all
litigation, actions, suits, investigations, claims and proceedings
asserted, brought or, to Sellers' knowledge, threatened against any
Seller or its Affiliates or predecessors-in-interest in respect of the
Business during the one-year period preceding the date hereof that is
(x) material and (y) solely with respect to litigation actually filed,
not dismissed, settled or otherwise fully and finally resolved,
together with a description of the outcome or present status thereof,
and (ii) all judgments, orders, decrees, writs or injunctions entered
into by or against any Seller with respect to the Business within the
past three years. None of the matters set forth on Schedule 5.1(h)
relate to Acquired Assets.
(i) Regulatory Compliance. Except as set forth on Schedule
5.1(i), the Business has been conducted, the Acquired Assets have been
maintained and each Seller is currently in material compliance with
all applicable Laws (including, without limitation, all laws relating
to zoning, building codes, civil rights, occupational health and
safety, antitrust, consumer protection, currency exchange, equal
opportunity, pensions, securities and trading-with-the-enemy), and no
material expenditures are or will be required to comply with any such
laws, regulations and orders of Governmental Authorities. No Seller
is, with respect to the Business, in material default under, and no
event has occurred which, with the lapse of time or action by a third
party, could result in material default under, the terms of any
judgment, decree, order, writ or injunction of any Governmental
Authority, whether at law or in equity.
(j) Brokers, Finders and Agents. No Seller is directly or
indirectly obligated to anyone acting as a broker, finder or in any
other similar capacity in connection with this Agreement or the
transactions contemplated hereby.
(k) Permits. Schedule 5.1(k) contains a true, correct and
complete list of all Permits issued to any Seller that are currently
used by such Seller in connection with the Acquired Assets (except for
the operations relating to Sellers' or their Affiliates' equipment
enclosures business). Each Seller has, and is in full compliance in
all material respects with, all Permits that are necessary or required
for the operation of the Acquired Assets, all of which Permits are in
full force and effect. There has been no change in the facts or
circumstances reported or assumed in the application for or granting
of such Permits which could have a negative impact on the continuing
availability, effectiveness or enforceability of any such Permit. No
Seller's operation of the Business during the pendency of its
applications, if any, for Permits violates any law, regulation or
order of any Governmental Authority.
(l) Environmental and Safety Compliance.
(i) Notwithstanding any other provision in this Agreement,
this Section 5.1(l) contains the exclusive representations of
Sellers concerning matters arising under or relating to any and
all federal, state or local statutes, laws, rules, regulations,
ordinances or common law, including any judicial or
administrative orders, consent decrees or judgments, relating to
pollution, protection or clean-up of the environment, the use,
treatment, storage, transportation, generation, manufacture,
processing, distributions, handling, Release or threatened
Release of Hazardous Materials ("Environmental Laws").
(ii) Except as specified in Schedule 5.1(l):
(A) Each Seller (with respect to the Acquired Assets) and
all purchased real property is in material compliance
with all, and each Seller (with respect to the Acquired
Assets) has no material liability under any, applicable
Environmental Laws.
(B) There are no present or past material Environmental
Conditions relating to any Seller (with respect to the
Acquired Assets), any purchased real property or, to
Sellers' knowledge, any real property formerly owned or
operated by the Sellers (with respect to the Acquired
Assets);
(C) No Seller (with respect to the Acquired Assets) is a
potentially responsible party with respect to any
foreign, federal, state, or local environmental
clean-up site or with respect to investigations,
remediation or corrective actions under any
Environmental Law, except for sites, investigations,
remediation or corrective actions that would not
reasonably be expected to be material;
(D) No Seller has received notice of any alleged, actual or
potential claim, demand, action, investigation or
administrative or judicial proceeding in connection
with the Acquired Assets regarding (A) any Release or
threatened Release of any Hazardous Materials at any
Site or other location, (B) any violation of or
non-compliance by any Seller with the conditions of any
Permit required under any Environmental Law or the
provisions of any Environmental Law with respect to the
Acquired Assets or any Site, or (C) any actual or
threatened injury or damage to any Person, property,
natural resource or the environment arising from or
relating to any Release, threatened Release,
generation, transportation, disposal or presence of any
Hazardous Materials with respect to the Business; in
the case of each of (A), (B) or (C) that would not
reasonably be expected to be material
(E) Each Seller has obtained all material permits, licenses
and approvals required by applicable Environmental Laws
with respect to the Acquired Assets.
(iii) Sellers have delivered or made available to Buyer or
the Lenders copies of all material environmental audits or other
studies or reports in Sellers' possession concerning any
Environmental Condition relating to the Acquired Assets.
(iv) None of the items disclosed in Schedule 5.1(l) (other
than those with respect to on-site conditions at Sellers'
facility in Peoria, Illinois) are reasonably likely to,
individually or in the aggregate, constitute a material adverse
change in the Business.
(v) Definitions.
(A) For purposes of this Agreement:
(1) "Environmental Conditions" shall mean the Release
or threatened Release of any Hazardous Materials
(whether or not such Release or threatened Release
constituted at the time thereof a violation of any
Environmental Law) as a result of which (i)
Hazardous Materials are present in the environment
in concentrations in excess of applicable cleanup
standards, remediation criteria, corrective action
objectives or similar, analogous standards, (ii)
any Seller has or is reasonably likely to have
liability to any Person, or (iii) any of the
Acquired Assets is reasonably likely to be
subjected to any Lien or liability;
(2) "Hazardous Materials" shall mean (i) any petroleum
or petroleum products, flammable explosives,
radioactive materials, asbestos in any form that
is or could become friable, urea formaldehyde foam
insulation, transformers or other equipment that
contains dielectric fluid containing levels of
polychlorinated biphenyls (PCBs), and radon gas;
and (ii) any chemicals, materials or substances
which are defined as or included in the definition
of "hazardous substances", "hazardous wastes",
"hazardous materials", "extremely hazardous
wastes", "restricted hazardous wastes", "toxic
substances", "toxic pollutants", "contaminants" or
"pollutants", or words of similar import, under
any applicable Environmental Law; and (iii) any
other chemical or other substance, exposure to
which is prohibited, limited or regulated under
any Environmental Law;
(3) "Release" shall mean any release, spill, leak,
pumping, pouring, emission, emptying, discharge,
injection, escape, leaching, dumping or disposal
into the environment; and
(4) "Site" shall mean any real property now or
previously owned or operated by any Seller with
respect to the Business.
(m) Taxes. Each Seller has filed or caused to be filed all
material Tax returns and reports relating to the Business and the
Acquired Assets required to be filed. All Taxes owed to any
Governmental Authority by any Seller for periods covered by such
returns and reports, and all claims, demands, assessments, judgments,
costs and expenses connected therewith, have been paid in full or are
being contested in good faith by appropriate proceedings and with
respect to which adequate reserves in accordance with United States
generally accepted accounting principles have been established in the
books and records of the Sellers for the payment of such Taxes. No
Seller is a party to any action or proceeding, nor to the best of
Sellers' knowledge, is any such action or proceeding contemplated or
threatened, for the assessment or collection of any Taxes relating to
the Business or the Acquired Assets, and no deficiency notices or
reports have been received by any Seller in respect of any Tax
relating to the Business or the Acquired Assets. The federal income
tax returns of each Seller have been examined by the Internal Revenue
Service for all periods to and including those set forth in Schedule
5.1(m), and, except to the extent shown therein, all deficiencies
asserted as a result of such examinations have been paid or finally
settled and no issue has been raised by the Internal Revenue Service
in any such examination which, by application of the same or similar
principles, reasonably could be expected to result in a proposed
deficiency for any other period not so examined. No state of facts
exists or has existed which would constitute grounds for the
assessment of any material federal income Tax liability with respect
to the periods which have not been audited by the Internal Revenue
Service. Except to the extent set forth on Schedule 5.1(m), there are
no outstanding agreements or waivers extending the statutory period of
limitation applicable to any federal income tax return for any period.
Copies of all income tax returns with respect to the Business for each
Seller in respect of all years not barred by the statute of
limitations have heretofore been delivered to Buyer. For the purposes
of this Agreement, "Tax" or "Taxes" means all net income, gross
income, gross receipts, sales, use, ad valorem, transfer, franchise,
profits, license, withholding, payroll, employment, excise, severance,
stamp, occupation, premium, property or windfall profits taxes,
customs duties or other taxes, fees, assessments or charges of any
kind whatsoever, together with any interest and any penalties,
additions to tax or additional amounts imposed by any taxing authority
(domestic or foreign). General and special real estate taxes,
utilities charges and installments of assessments not due and payable
on the Fee Property as of the Closing (the "Proratable Items") shall
be prorated and adjusted ratably between Parent and Buyer as of
Closing. If the amount of any Proratable Item is not ascertainable at
Closing Date, the adjustment thereof shall be on the basis of 110% of
the most recently ascertainable xxxx therefor, to be reprorated by the
parties upon receipt of a final xxxx for such Proratable Item.
(n) Insurance. Schedule 5.1(n) contains a list of all insurance
policies (specifying the location, insured, insurer, amount of
coverage, type of insurance and policy number) maintained by any
Seller applicable to the Acquired Assets. All such policies are in
full force and effect, all premiums with respect thereto covering all
periods up to and including the date of Closing have been paid, and no
notice of cancellation or termination has been received with respect
to any such policy. Such policies (i) are sufficient for compliance
with all requirements of law and of all agreements to which any Seller
is a party, (ii) are valid, outstanding and enforceable policies, and
(iii) provide adequate insurance coverage for the Acquired Assets. The
insurance policies being issued or transferred to Buyer, or with
respect to which Buyer is being named as an additional insured, in
connection with the transactions contemplated by this Agreement are
valid, outstanding and enforceable policies, and provide adequate
insurance coverage for the Acquired Assets.
(o) Approvals. Schedule 1.3 sets forth a list of all Consents
that must be obtained or satisfied by Seller for the consummation of
the transactions contemplated by this Agreement, including, without
limitation, all Consents that must be obtained pursuant to Section
1.3(a). Except as set forth on Schedule 5.1(o), all Consents
prescribed by any Law (including the Government Contract Regulations,
the Federal Assignment of Claims Act and the Federal Anti-Assignment
Act), or any contract, agreement, commitment or undertaking, and which
must be obtained or satisfied by any Seller for the consummation of
the transactions contemplated by this Agreement, or for the continued
performance by them of their rights and obligations hereunder, have
been, or shall by the Closing have been, made, obtained and satisfied.
(p) Books and Records. The books and records of each Seller
accurately record all transactions relating to the Business in all
material respects, and have been maintained consistent with good
business practice.
(q) Warranty Costs. Schedule 5.1(q) is a description of all
litigation, actions, suits, investigations, claims and proceedings
asserted, brought or, to Sellers' knowledge, threatened against any
Seller with respect to the Acquired Assets within the last three years
preceding the date of this Agreement, together with a description of
the outcome or present status thereof, in each case relating to any
claim for warranty costs involving amounts in excess of $10,000,
individually or in the aggregate. Except as set forth on Schedule
5.1(q), claims for warranty costs (individually or in the aggregate)
during the twelve month period ended December 31, 2002 did not exceed
$50,000, and there are no outstanding or, to Sellers' knowledge,
threatened claims for any such costs which would exceed $50,000
(individually or in the aggregate). As used herein, "warranty costs"
means the costs and expenses of servicing, repairing, returning and/or
replacing, or allowances for service, repair, return or replacement,
of defective or allegedly defective or improperly selected or shipped
products or parts or components thereof manufactured or sold by any
Seller and the costs of materials and expenses of replacing materials
or correcting any jobs or materials inadequately performed or
manufactured by any Seller, together with such legal liability, if
any, as may exist in connection with sales of such products, whether
such costs and expenses relate to or arise out of claims or causes of
action which assert causes sounding in tort, contract or warranty, or
any combination of the foregoing.
(r) Copies of Documents. Sellers have delivered to Buyer true,
correct and complete copies of all contracts, agreements and other
documents listed in the Schedules to, or referenced in, this
Agreement, and all modifications and amendments thereto.
(s) Appraisal. Sellers have delivered to Buyer a true and
complete copy of the most recent appraisal of the Fee Property located
in Alabama.
(t) Disclosure. No representation or warranty made by any Seller
contained in this Agreement or in any other writing furnished pursuant
hereto contains an untrue statement of a material fact or omits to
state a material fact necessary to make the statements and facts
contained herein or therein, in light of the circumstances in which
they were or are made, not false or misleading.
(u) Employee Benefit Plans. Set forth on Schedule 5.1(u) is a
list of all "employee benefit plans," as defined in Section 3(3) of
ERISA, all other severance pay, salary continuation, bonus, incentive,
stock option, retirement, pension, profit sharing or deferred
compensation plans, contracts, programs, funds, or arrangements of any
kind, and all other employee benefit plans, contracts, programs,
funds, or arrangements (whether written or oral, qualified or
nonqualified, funded or unfunded, foreign or domestic) and any trust,
escrow, or similar agreement related thereto, whether or not funded,
in respect of any present or former employees, directors, officers,
consultants, or independent contractors of the Sellers or with respect
to which the Sellers have made or are required to make payments,
transfers, or contributions and in respect of which Sellers have or
may have liability (each a "Plan" and, collectively, the "Plans").
Except as disclosed on Schedule 5.1(u):
(i) Each Plan is in compliance in all material respects with
the applicable provisions of ERISA and the Code and other legal
requirements. Each Plan that is intended to qualify under Section
401(a) of the Code has received a favorable determination letter
from the Internal Revenue Service or an application for such a
letter is currently being processed by the Internal Revenue
Service with respect thereto and, to the best knowledge of the
Sellers, nothing has occurred that would prevent, or cause the
loss of, such qualification. The Sellers and each ERISA Affiliate
have made all required contributions to each Plan subject to
Section 412 of the Code, and no application for a funding waiver
or an extension of any amortization period pursuant to Section
412 of the Code has been made with respect to any Plan. For
purposes of this Agreement, "ERISA Affiliate" shall mean any
trade or business (whether or not incorporated) under common
control with the Sellers within the meaning of Section 414(b) or
(c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
(ii) There are no pending or, to the best knowledge of the
Sellers, threatened claims, actions or lawsuits, or action by any
governmental authority, with respect to any Plan (other than
routine claims for benefits). There has been no prohibited
transaction or violation of the fiduciary responsibility rules of
ERISA with respect to any Plan that could result in liability in
excess of $10,000.
(iii) (a) No ERISA Event has occurred or is reasonably
expected to occur; (b) no Pension Plan has an "accumulated
funding deficiency" (as defined in Section 412 of the Code),
whether or not waived, and no application for a waiver of the
minimum funding standard has been filed with respect to any
Pension Plan; (c) neither the Sellers nor any ERISA Affiliate has
incurred, or reasonably expects to incur, any liability under
Title IV of ERISA with respect to any Pension Plan (other than
premiums due and not delinquent under Section 4007 of ERISA); (d)
neither the Sellers nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability (and no event has
occurred which, with the giving of notice under Section 4219 of
ERISA, would result in such liability) under Sections 4201 or
4243 of ERISA with respect to a Multiemployer Plan; and (e)
neither the Sellers nor any ERISA Affiliate has engaged in a
transaction that could be subject to Sections 4069 or 4212(c) of
ERISA. For purposes of this Agreement, (A) "ERISA Event" shall
mean (I) a Reportable Event with respect to a Pension Plan; (II)
a withdrawal by the Sellers or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which
it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations that is treated as such a
withdrawal under Section 4062(e) of ERISA; (III) a complete or
partial withdrawal by the Sellers or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (IV) the filing of a notice of intent to
terminate, the treatment of a Plan amendment as a termination
under Sections 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (V) an event or condition which constitutes
grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (VI) the imposition of any liability under
Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Sellers or any
ERISA Affiliate; (B) "Multiemployer Plan" shall mean any employee
benefit plan of the type described in Section 4001(a)(3) of
ERISA, to which the Sellers or any ERISA Affiliate makes or is
obligated to make contributions, or during the preceding five
plan years, has made or been obligated to make contributions; (C)
"PBGC" shall mean the Pension Benefit Guaranty Corporation; (D)
"Pension Plan" shall mean any "employee pension benefit plan" (as
such term is defined in Section 3(2) of ERISA), other than a
Multiemployer Plan, that is subject to Title IV of ERISA and is
sponsored or maintained by the Sellers or any ERISA Affiliate or
to which the Sellers or any ERISA Affiliate contributes or has an
obligation to contribute, or in the case of a multiple employer
or other plan described in Section 4064(a) of ERISA, has made
contributions at any time during the immediately preceding five
plan years; and (E) "Reportable Event" shall mean any of the
events set forth in Section 4043(c) of ERISA, other than events
for which the 30 day notice period has been waived.
(iv) The execution and performance of this Agreement will
not (a) constitute a stated triggering event under any Plan that
will result in any payment (whether of severance pay or
otherwise) becoming due from the Sellers or any subsidiary of the
Sellers to any officer, employee, or former employee (or
dependents of such employee), or (b) accelerate the time of
payment or vesting, or increase the amount of compensation due to
any employee, officer or director of the Sellers or any
subsidiary of the Seller, in any case in excess of $10,000.
(v) No Additional Representations. NOTWITHSTANDING ANYTHING
TO THE CONTRARY CONTAINED IN THIS SECTION 5.1 OR ANY OTHER
PROVISION OF THIS AGREEMENT, IT IS THE EXPLICIT INTENT OF EACH
PARTY HERETO THAT THE SELLERS ARE MAKING NO REPRESENTATION OR
WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, BEYOND THOSE EXPRESSLY
GIVEN IN THIS SECTION 5.1, INCLUDING BUT NOT LIMITED TO ANY
IMPLIED WARRANTY OR REPRESENTATION AS TO THE CONDITION,
MERCHANTABILITY OR SUITABILITY OF ANY OF THE PROPERTIES OR ASSETS
OF ANY SELLER. ANY COST ESTIMATES, PROJECTIONS OR OTHER
PREDICTIONS CONTAINED OR REFERRED TO IN THE SCHEDULES HERETO OR
OTHERWISE PROVIDED ARE NOT, AND SHALL NOT BE DEEMED TO BE,
REPRESENTATIONS OR WARRANTIES OF ANY SELLER.
Section 5.2 Representations and Warranties of Buyer. Buyer represents
and warrants to Seller that:
(a) Organization and Standing; Corporate Power and Authority.
Buyer is a limited liability corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware,
and has full power and authority to make and perform this Agreement,
and to perform the transactions contemplated by this Agreement. This
Agreement and all other agreements and instruments executed and
delivered by Buyer in connection herewith have been duly executed and
delivered by Buyer. This Agreement and the transactions and other
agreements and instruments contemplated by this Agreement have been
duly approved by the members of Buyer, and constitute the valid and
binding obligations of Buyer, enforceable in accordance with their
respective terms.
(b) Conflicts; Defaults. Neither the execution and delivery of
this Agreement by Buyer, nor the performance of its obligations
hereunder, will conflict with or constitute a default under any of the
terms of Buyer's Certificate of Formation or Limited Liability Company
Agreement or any agreement by which Buyer is bound.
(c) Brokers, Finders and Agents. Buyer is not directly or
indirectly obligated to anyone as a broker, finder or in any other
similar capacity in connection with this Agreement or the transactions
contemplated hereby.
(d) Title to Loans. Buyer has a valid ownership interest in the
Loans that constitute the Purchase Price.
(e) Interests of Buyer. Neither Buyer nor any Lender is a
stockholder or holder of any option to purchase any equity securities
of any Seller.
(f) Ownership of Buyer. The Lenders own all of the equity
securities of, and all options to purchase equity securities or
securities convertible into equity securities of, Buyer. Each Lender
holds a percentage of the total outstanding equity securities of Buyer
equal to the percentage of the outstanding principal amount
indebtedness of the Borrowers pursuant to the Credit Agreement held by
such Lender as of the date hereof. No party other than the Lenders or
the administrative agent under the Credit Agreement has the right to
Control (as defined in Rule 12b-2 of the Securities Exchange Act of
1934, as amended) Buyer. No Lender is an individual or natural person
or a disregarded entity holding for such an individual or natural
person.
(g) Disclosure. No representation or warranty made by Buyer
contained in this Agreement or in any other writing furnished pursuant
hereto contains an untrue statement of a material fact or omits to
state a material fact necessary to make the statements and facts
contained herein or therein, in light of the circumstances in which
they were or are made, not false or misleading.
Section 5.3 General. The representations and warranties of the parties
hereto made in this Agreement, subject to the exceptions thereto, shall not
be affected by any information furnished to, or any investigation conducted
by, any of them or their representatives in connection with the subject
matter of this Agreement. The representations and warranties made in this
Agreement or in any instrument delivered pursuant to this Agreement shall
survive the Closing.
ARTICLE VI
COVENANTS OF SELLERS
Section 6.1 Maintenance of, and Access to, Records. After the Closing
Date, each party hereto shall provide any other party hereto with access
(with an opportunity to make copies), during normal business hours, and
upon reasonable notice, to any records relating to the Business that are
held by any other party hereto. The parties shall preserve and maintain any
books and records relating to the Business and retained by them for at
least three years after the Closing Date.
Section 6.2 Accounts Receivable. If any Seller or any of its
Affiliates receives any payment relating to any Account Receivable
outstanding on or after the Closing Date, such payment shall be the
property of, and shall be immediately forwarded and remitted to, Buyer.
Such Seller or such Affiliate will promptly endorse and deliver to Buyer
any cash, checks or other documents received by Seller on account of any
such Accounts Receivable. Such Seller or such Affiliate shall advise Buyer
(promptly upon becoming aware thereof) of any counterclaims or setoffs that
may arise subsequent to the Closing Date with respect to any Account
Receivable.
Section 6.3 Plant Closing Obligations. If any Seller or any of its
Affiliates takes any action which could be construed as a "plant closing"
or "mass layoff," or which results in any employee retained or employed in
connection with the Business suffering or deeming to have suffered any
"employment loss," as those terms are defined in WARN, Sellers and such
Affiliates shall be solely responsible for providing any notice required by
WARN and for making payments, if any, which may be required under WARN for
failure to provide appropriate notice.
Section 6.4 Further Assurances. Sellers shall use their reasonable
best efforts to implement the provisions of this Agreement, and for such
purpose Sellers, at the request of Buyer, at or after the Closing, shall,
without further consideration, promptly execute and deliver, or cause to be
executed and delivered, to Buyer such deeds, assignments, bills of sale,
Consents and other instruments in addition to those required by this
Agreement, in form and substance satisfactory to Buyer, and take all such
other actions, as Buyer may reasonably deem necessary or desirable to
implement any provision of this Agreement or to more effectively transfer,
convey and assign to Buyer good and valid (and in the case of real
property, marketable) title to, and to put Buyer in actual possession and
operating control of, all of the Acquired Assets, free and clear of all
Liens other than Permitted Liens. In furtherance of the foregoing
obligation, Sellers shall, promptly upon the request of Buyer (and in any
event within 15 days of any such request) provide any additional
description or detail, or supporting documentation (including, without
limitation, invoices and bills of sale), requested by Buyer with respect to
the Acquired Assets and Schedule 1.1.
ARTICLE VII
CERTAIN ADDITIONAL COVENANTS
Section 7.1 Expenses; Transfer Taxes. All legal, accounting and other
expenses incurred by any party hereto in connection with the negotiation,
preparation and execution of this Agreement, the Transaction Documents, and
the transactions contemplated hereby, and all sales, transfer, recordation
and documentary Taxes and fees which may be payable in connection with the
transactions contemplated by this Agreement, shall be borne by Sellers.
Section 7.2 Press Releases and Disclosure. The parties agree that
neither Sellers, Buyer nor their respective Affiliates shall issue or cause
publication of any press release or other announcement or public
communication with respect to this Agreement or the transactions
contemplated hereby or otherwise disclose this Agreement or the
transactions contemplated hereby to any third party (other than attorneys,
advisors and accountants to Sellers or Buyer) without the consent of the
other party hereto, which consent shall not be unreasonably withheld;
provided, that nothing herein shall prohibit any party from issuing or
causing publication of any press release, announcement or public
communication to the extent that such party deems such action to be
required by Law or stock exchange regulation; provided further that such
party shall, whenever practicable consult with the other party concerning
the timing and content of such press release, announcement or communication
before the same is issued or published.
Section 7.3 Defense of Claims. If a claim is asserted against Buyer or
any of its direct or indirect subsidiaries or Affiliates with respect to
events or conditions occurring or existing in connection with, or arising
out of, the operation of the Business prior to the Closing, or the
ownership, possession, use or sale of the Acquired Assets prior to the
Closing, Sellers shall fully cooperate with Buyer in the defense of any
such claim, including by acknowledging that Sellers retained all, and Buyer
assumed no, such liabilities. If a claim is asserted against any Seller or
any of its direct or indirect subsidiaries or Affiliates, with respect to
the ownership, possession, use or sale of the Acquired Assets from and
after the Closing, Buyer shall fully cooperate with Sellers in the defense
of any such claim.
Section 7.4 Employee Matters. Sellers shall retain all liabilities and
obligations in respect of its past, present and future employees, including
all liabilities under any Plans and applicable Laws. Without limiting the
generality of the foregoing, Buyer shall have no liability or obligation
whatsoever under the Plans, nor shall Buyer have any obligation to provide
any employee benefits to any Persons employed in the Business at any time.
Section 7.5 License to Alabama and Illinois Facilities. Buyer hereby
agrees to allow Parent the right to use, on a month-to-month basis for no
less than, with respect to the Alabama Fee Property, 60 days, and with
respect to the Illinois Fee Property, 90 days, and in each case for no more
than two years, a portion of the Fee Property located in Alabama and
Illinois to the extent necessary to permit Sellers to operate their
business for engineering, drafting, sales and administrative purposes
and/or otherwise consolidating their operations at Sellers' or their
Affiliates' facilities in Frankfort, Indiana at a monthly cost to Sellers
to be mutually agreed upon by Sellers and Buyer, or, if such cost cannot be
agreed upon by such parties, at a cost to be determined by a reputable
independent appraiser selected by Buyer. Sellers' right to use such
facility shall be subject to the terms set forth on Schedule 7.5.
Section 7.6 Technical Support. For a period of one year following the
Closing Date, upon the request of Buyer, Sellers shall provide to Buyer
technical support, security, maintenance, repair, mechanical and other
similar services as reasonably requested by Buyer at a fair market value
cost to Buyer to be mutually agreed upon by Sellers and Buyer, or, if such
cost cannot be agreed upon by such parties, at a cost to be determined by a
reputable independent appraiser selected by Buyer. All amounts payable to
Sellers for rendering technical support and services shall be calculated on
a monthly basis and shall be paid to Sellers within thirty days after the
month in which such technical support and services have been provided.
Section 7.7 Existing Leases. At Closing the Sellers shall sell,
assign, transfer, convey, set over and deliver to Buyer, all of Sellers'
right, title and interest in and to the Existing Leases and Buyer shall
assume and agree to keep, perform and fulfill all of Sellers' duties,
obligations, and undertakings as landlord under the Existing Leases arising
after the Closing Date. Sellers agree to indemnify and hold Buyer harmless
from and against all liabilities, liens, claims, demands, causes of action,
costs and expenses (including, without limitation, attorneys' fees)
incurred by or asserted against Buyer by reason of any default by Sellers
under any Existing Lease occurring prior to the Closing Date. Sellers and
Buyer also hereby agree further from time to time to perform such other
acts, and to execute, acknowledge and deliver such other instruments,
documents and other materials as may be reasonably necessary to effectuate
the assignment and assumption contemplated hereby.
ARTICLE VIII
INDEMNIFICATION
Section 8.1 Indemnification by Buyer. From and after the Closing,
Buyer shall indemnify, defend and hold Sellers, their Affiliates, and their
respective directors, officers, representatives, employees and agents
harmless from and against any and all claims, actions, suits, demands,
assessments, judgments, losses, liabilities, damages, costs and expenses
(including, without limitation, interest, penalties, attorneys' fees to the
extent permitted by law, and accounting fees and investigation costs)
(collectively, "Damages") that may be incurred by any of them resulting or
arising from or related to, or incurred in connection with: (a) the failure
of Buyer to report the purchase of the Acquired Assets in accordance with
the allocations required by Section 3.2, or (b) any breach of any
representation, warranty, covenant, obligation or agreement of Buyer
contained herein or in any other Transaction Document.
Section 8.2 Indemnification by Sellers.
(I) General. From and after the Closing, Sellers shall jointly
and severally indemnify, defend and hold Buyer, its Affiliates, and their
respective directors, officers, representatives, employees and agents
harmless from and against any and all Damages that may be incurred by any
of them resulting or arising from, related to or incurred in connection
with: (a) the failure of Sellers to assume, pay, perform and discharge the
Liabilities, (b) the failure of Sellers to report the sale of the Acquired
Assets in accordance with the allocations required by Section 3.2, (c) any
breach of any representation, warranty, covenant, obligation or agreement
of Sellers contained herein or in any other Transaction Document, or (d)
any failure to comply with the laws of any jurisdiction relating to bulk
transfers which may be applicable in connection with the transfer of the
Acquired Assets to Buyer.
(II) Environmental Indemnification. Sellers jointly and severally
agree to indemnify, defend, reimburse and hold harmless:
(A) Buyer, its Affiliates and their respective directors,
officers, representatives, lenders, employees and
agents; and
(B) any other Person who acquires a portion of the Fee
Property in any manner, including but not limited to,
through purchase, at a foreclosure sale or otherwise
through the exercise of the rights and remedies of
Buyer under this Agreement; and
(C) the contractors, subcontractors, experts, licensees,
lessees, mortgagees, trustees, heirs, devisees,
successors, assigns and invitees of any Persons
referred to in subsections (A) or (B) of this Section
8.2(II);
(collectively, the "Buyer Indemnified Parties") from and against any and
all Environmental Conditions arising from the presence, use, generation,
storage, treatment, discharge, release or disposal (including off-site
disposal) of Hazardous Materials upon, about, from or beneath the Fee
Property or migrating to or from the Fee Property, or arising in any manner
whatsoever out of the violation of any Environmental Laws pertaining to the
Fee Property and the activities thereon, in each case to the extent that
such Environmental Conditions or violation of any Environmental Laws are
attributable to, or the result of, any act or omission prior to the Closing
Date. The Buyer Indemnified Parties shall have the right, at their own cost
and expense, to review in advance and provide comments on any documents
proposed to be submitted to governmental entities or other third parties,
including, without limitation, any proposed or final work plan, report,
compliance schedule, compliance or consent order, decree or agreement.
Section 8.3 Notice of Claim; Right to Participate in and Defend
Third Party Claim.
(a) If any indemnified party receives notice of the assertion of
any claim, the commencement of any suit, action or proceeding, or the
imposition of any penalty or assessment by a third party in respect of
which indemnity may be sought hereunder (a "Third Party Claim"), and the
indemnified party intends to seek indemnity hereunder, then the indemnified
party shall promptly provide the indemnifying party with prompt written
notice of the Third Party Claim, but in any event not later than 30
calendar days after receipt of such notice of Third Party Claim. The
failure by an indemnified party to notify an indemnifying party of a Third
Party Claim shall not relieve the indemnifying party of any indemnification
responsibility under this Article VIII, unless such failure materially
prejudices the ability of the indemnifying party to defend such Third Party
Claim.
(b) The indemnifying party shall have the right to control the
defense, compromise or settlement of any Third Party Claim with its own
counsel (reasonably satisfactory to the indemnified party) if the
indemnifying party delivers written notice to the indemnified party within
seven days following the indemnifying party's receipt of notice of the
Third Party Claim from the indemnified party acknowledging its obligations
to indemnify the indemnified party with respect to such Third Party Claim
in accordance with this Article VIII, and, if at any time reasonably
requested by Buyer, establishes security in form and substance reasonably
satisfactory to the indemnified party to secure the indemnifying party's
obligations under this Article VIII with respect to such Third Party Claim;
provided, however, that in the case of any Third Party Claim for which the
indemnifying party is obligated to indemnify any Buyer Indemnified Party
pursuant to Section 8.2(II), Sellers shall control the defense, compromise
or settlement of the Third Party Claim, and all investigatory, response and
remedial actions with respect thereto; provided, further, that the
indemnifying party shall not enter into any settlement of any Third Party
Claim which would impose or create any obligation or any financial or other
liability on the part of the indemnified party. In its defense, compromise
or settlement of any Third Party Claim, the indemnifying party shall timely
provide the indemnified party with such information with respect to such
defense, compromise or settlement as the indemnified party shall reasonably
request, and shall not assume any position or take any action that would
impose an obligation of any kind on, or restrict the actions of, the
indemnified party. The indemnified party shall be entitled (at the
indemnified party's expense) to participate in the defense by the
indemnifying party of any Third Party Claim with its own counsel.
(c) If the indemnifying party does not undertake the defense,
compromise or settlement of a Third Party Claim in accordance with
subsection (b) of this Section 8.3, or, with respect to any claim under
Section 8.2(II), Sellers fail to take diligent and continuous action as
necessary to address any underlying Environmental Condition in accordance
with Environmental Law, or if any bankruptcy, reorganization or other case
or proceeding under any bankruptcy or insolvency law, or any dissolution or
liquidation proceeding is commenced in respect of the indemnifying party,
the indemnified party shall have the right to control the defense or
settlement of such Third Party Claim with counsel of its choosing;
provided, however, that the indemnified party shall not settle or
compromise any such Third Party Claim without the indemnifying party's
prior written consent, unless (i) the terms of such settlement or
compromise release the indemnified party or the indemnifying party from any
and all liability with respect to such Third Party Claim, or (ii) the
indemnifying party shall not have acknowledged its obligations to indemnify
the indemnified party with respect to such Third Party Claim in accordance
with this Article VIII and established security in form and substance
reasonably satisfactory to the indemnified party to secure the indemnifying
party's obligations under this Article VIII with respect to such Third
Party Claim. The indemnifying party shall be entitled (at the indemnifying
party's expense) to participate in the defense of any Third Party Claim
with its own counsel.
(d) Any indemnifiable claim hereunder that is not a Third Party
Claim shall be asserted by the indemnified party by promptly delivering
notice thereof to the indemnifying party. If the indemnifying party does
not respond to such notice within 60 days after its receipt, it shall have
no further right to contest the validity of such claim.
Section 8.4 Setoff. In addition to any and all other remedies
hereunder or at law or in equity, Buyer shall be entitled to recover any
indemnification payment or other amounts due from Sellers hereunder by
retaining and setting off the amounts (whether or not such amounts are
liquidated or reduced to judgment) against any amounts due or to become due
from Buyer or any member or other Affiliate of Buyer to any Seller
hereunder or under any document delivered pursuant hereto or in connection
herewith.
Section 8.5 Time Limitations on Claims for Indemnification. The right
of Buyer to indemnification for any breach of any representation or
warranty shall apply only to those claims for indemnification which are
given pursuant to this Agreement on or before the respective dates set
forth below:
(a) Any claim for indemnification relating to any breach of the
representations and warranties set forth in Section 5.1(m) shall be
made on or before 45 days after the expiration of the applicable
statute of limitations (and any waivers or extensions thereof)
applicable to any claim arising in connection with any breach of any
such representations and warranties;
(b) No time limit shall apply to any right to indemnification
with respect to any breach of any representation or warranty contained
in Sections 5.1(a), (b), (d) or (l); and
(c) Any claim for indemnification with respect to any breach of
any representation or warranty set forth in any subsection of Section
5.1 not referred to in subsections (a) or (b) of this Section 8.5
shall be made on or before the date which is three years following the
Closing Date.
Section 8.6 Maximum and De Minimis Amounts; Recoveries Limited.
(a) The maximum amount of indemnification that can be required of
Sellers under Section 8.2(I)(c) for any breach of any representation
or warranty set forth in Section 5.1 (or any portion thereof) shall
not exceed $7,398,191.
(b) Sellers shall not be required to indemnify, defend or hold
Buyer harmless from and against any Damages or Environmental
Conditions under Section 8.2(I)(c) with respect to any breach of any
representation or warranty unless and until the amount of such Damages
or Environmental Conditions equals $100,000 in the aggregate (the
"Threshold Amount"), in which event Sellers shall be obligated to
indemnify Buyer, and Buyer may assert its right to indemnification
hereunder, to the full extent of all Damages or Environmental
Conditions relating to such breach, including Damages or Environmental
Conditions that are less than the Threshold Amount.
Section 8.7 Exclusions. No limitation set forth in Sections 8.5 or 8.6
shall apply with respect to any matter as to which any Seller had knowledge
as of the Closing and which was not disclosed in writing to Buyer pursuant
to this Agreement, including, without limitation, the schedules hereto.
Section 8.8 Insurance. If Buyer incurs or discovers any loss or damage
following the Closing relating to pre-Closing events or conditions that is
covered by or subject to policies of insurance maintained by any Seller,
Sellers shall take all commercially reasonable actions requested by Buyer
to enforce such policies of insurance, including seeking recovery for any
such loss or damage claimed by Buyer, provided, however, Buyer shall pay
all deductibles in connection with such claims. Sellers shall promptly pay
or transfer any amounts recovered from such insurance policies to Buyer.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Amendments. This Agreement may be amended only by a
writing executed by all of the parties hereto.
Section 9.2 Entire Agreement. This Agreement, and the other agreements
expressly provided for herein, set forth the entire understanding of the
parties hereto with respect to the subject matter hereof, and supersede all
prior contracts, agreements, arrangements, communications, discussions,
representations and warranties, whether oral or written, between the
parties.
Section 9.3 Governing Law. This Agreement shall in all respects be
governed by and construed in accordance with the laws of the State of
Illinois.
Section 9.4 Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Agreement.
Section 9.5 Forum Selection and Consent to Jurisdiction. Any
litigation based hereon, or arising out of, under, or in connection with
this Agreement shall be brought and maintained exclusively in the courts of
the State of Illinois or in the United States District Court for the
Northern District of Illinois, or any proper court of appeal therefrom.
Sellers and Buyer expressly and irrevocably submit to the jurisdiction of
the courts of the State of Illinois and of the United States District Court
for the Northern District of Illinois, and appellate courts therefrom, for
the purpose of any such litigation as set forth above. Sellers and Buyer
further irrevocably consent to the service of process by registered mail,
postage prepaid, or by personal service within or without the State of
Illinois. Sellers and Buyer expressly and irrevocably waive, to the fullest
extent permitted by law, any objection that they may now or hereafter have
to the laying of venue of any such litigation brought in any court referred
to above and any claim that any such litigation has been brought in an
inconvenient forum. To the extent that Sellers or Buyer have or hereafter
may acquire any immunity from jurisdiction of any court or from any legal
process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution or otherwise) with respect to themselves or
their property, Sellers and Buyer hereby irrevocably waive such immunity in
respect of their obligations under this Agreement.
Section 9.6 Waiver of Jury Trial. THE SELLERS AND THE BUYER EACH
WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE
OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT AND ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE BE DELIVERED IN
CONNECTION HEREWITH OR THEREWITH, AND AGREES THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
Section 9.7 Notices. Any notice, request or other communication
required or permitted hereunder shall be in writing and shall be deemed to
have been duly given (a) when received if personally delivered, (b) within
5 days after being sent by registered or certified mail, return receipt
requested, postage prepaid, (c) within 12 hours after being sent by
telecopy, with confirmed answerback, or (d) within 1 business day of being
sent by priority delivery by established overnight courier, to the parties
at their respective addresses set forth below.
To Seller: XXXX Industries, Inc.
Attention: Chief Financial Officer
0000 Xxxx Xxxxx Xxxx
X.X. Xxx 0000,
Xxxxxx, XX 00000
Fax: (000) 000-0000
Telephone: (000) 000-0000 (for confirmation of receipt)
With a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Attention: Xxxxxx X. Xxxxxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Fax: (000) 000-0000
Telephone: (000) 000-0000 (for confirmation of receipt)
To Buyer: FOGSON, L.L.C.
c/o LaSalle Bank National Association
Attention: Xxxxx Xxxxxxx
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Telephone: (000) 000-0000 (for confirmation of receipt)
With a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
Attention: Xxxxxx X. Xxxxxx
00 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Telephone: (000) 000-0000 (for confirmation of receipt)
Any party by written notice to the others given in accordance with this
Section 9.7 may change the address or the Persons to whom notices or copies
thereof shall be directed.
Section 9.8 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, and all
of which together will constitute one and the same instrument.
Section 9.9 Assignment. This Agreement shall be binding upon and inure
to the benefit of the successors and assigns of each party hereto. All
rights, obligations and liabilities of Buyer hereunder may be assigned by
Buyer to any Affiliate thereof or any third Person with no need for the
consent of the other parties hereto, provided, however, that if Buyer
assigns any of its rights to indemnification pursuant to (x) Section
8.2(I)(c) for breach of the representations and warranties made in Section
5.1(l) or (y) Section 8.2(II) to any non-Affiliate of Buyer any such
assigned rights to indemnification shall be subject to the following
limitations: (a) any claim by any such assignee for indemnification
pursuant to Section 8.2(II) or Section 8.2(I)(c) for breach of the
representations and warranties made in Section 5.1(l) must be made within 5
years of the date of such assignment; (b) the maximum aggregate amount of
indemnification that can be required of Sellers by such assignee pursuant
to Sections 8.2(I)(c) and 8.2(II) is $7,398,191; and (c) no claim can be
made by such assignee for indemnification pursuant to Section 8.2(II) or
Section 8.2(I)(c) for breach of the representations and warranties made in
Section 5.1(l) for costs incurred in connection with remediation of any
Environmental Condition unless such remediation is required by
Environmental Law. No rights, obligations or liabilities of any Seller
hereunder may be assigned without Buyer's prior written consent.
Section 9.10 Waivers. Except as otherwise provided herein, Buyer or
Sellers may waive in writing compliance by any of the other parties hereto
(to the extent such compliance is for the benefit of the party giving such
waiver) with any of the terms, covenants or conditions contained in this
Agreement or in any of the other Transaction Documents (except such as may
be imposed by law). Any waiver by any party of any violation of, breach of,
or default under, any provision of this Agreement or any of the other
Transaction Documents, by any other party shall not be construed as, or
constitute, a continuing waiver of such provision, or waiver of any other
violation of, breach of or default under any other provision of this
Agreement or any of the other Transaction Documents.
Section 9.11 Schedules. The Schedules attached to this Agreement are
incorporated herein and shall be part of this Agreement for all purposes.
Section 9.12 Headings. The headings in this Agreement are solely for
convenience of reference and shall not be given any effect in the
construction or interpretation of this Agreement.
Section 9.13 Certain Definitions.
(a) For purposes of this Agreement, the term "Affiliate" shall
mean any Person that directly, or indirectly through one or more Persons,
controls, is controlled by, or is under common control with, the Person
specified or, directly or indirectly, is related to or otherwise associated
with any such Person or entity.
(b) For purposes of this Agreement and of any other Transaction
Document, references to any Seller's knowledge, or Sellers' knowledge,
shall be deemed to include all information that is actually known or, in
the exercise of reasonable diligence in the normal course of their
employment and/or assigned duties, should be known, by each of the
following individuals: (i) the following officers of Sellers: Xxxx Xxxxxx,
Xxxxx Xxxxxxx, Xxxx Xxx, Xxxx Xxxxx, Xxxxxxx Xxxxxxxxx, or Xxxxxx Xxxx and
all management or supervisory personnel who are (or, at any time since
January 1, 2002, were) employed or retained by any Seller or any of its
Affiliates, whether or not such individuals were or are also officers,
directors of employees of any Seller or any of their Affiliates, and (ii)
all other individuals employed or retained by any Seller or any of their
Affiliates who have (or should have) exercised by reason of their position,
responsibilities or duties, the principal supervisory, monitoring or
compliance function with respect to any of the particular subject matters
addressed by the representations and warranties set forth in Article V of
this Agreement.
Section 9.14 Remedies Not Exclusive. No remedy conferred by any of the
specific provisions of this Agreement is intended to be exclusive of any
other remedy and each remedy shall be cumulative and shall be in addition
to every other remedy given hereunder or hereafter existing at law or in
equity or by statute or otherwise. No remedy shall be deemed to be a
limitation on the amount or measure of damages resulting from any breach of
this Agreement. The election of any one or more remedies shall not
constitute a waiver of the right to pursue other available remedies.
Section 9.15 Gender and Number. The masculine, feminine or neuter
gender and the singular or plural number shall each be deemed to include
the others whenever the context so indicates.
Section 9.16 Third Parties. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any
Person or entity other than Buyer, any member or other Affiliate of Buyer,
any assignee of any of the foregoing, or Seller, any rights or remedies
under or by reason of this Agreement.
[Remainder of page intentionally blank.]
IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to execute this Agreement as of the date first above
written.
XXXX INDUSTRIES, INC.
By: /s/ Xxxx X. Xxx
-------------------------------------
Name: Xxxx X. Xxx
Title: Vice President, Chief Financial
Officer and Secretary
XXXX ENCLOSURES, INC.
XXXX, INC.
XXXX CONSTRUCTION, INC.
XXXX PRODUCTS, INC.
XXXX INSTALLATION SERVICES, INC.
By: /s/ Xxxx X. Xxx
--------------------------------------
Name: Xxxx X. Xxx
Title: Vice President, Treasurer and
Secretary
FOGSON, L.L.C.
By: LaSalle Bank National Association,
as Manager
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------
Title: Vice President
--------------------------
