ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT dated February 2, 1995, by and among Xxxx Xxxxx,
as Chapter 11 Trustee for XXXX INC., XXXX OF BOND STREET, INC., and XXXX
CREATIONS, INC. (collectively, "Trustee") and MERCHANTS T&F, INC., a New York
corporation, with offices at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Purchaser").
WITNESSETH
WHEREAS, Trustee is the Chapter 11 Trustee in certain Chapter 11 cases
jointly administered as Case No. 94-B-43389 (the "Cases") pending in the United
States Bankruptcy Court, Southern District of New York (the "Court"); and
WHEREAS, Trustee has succeeded by operation of law to all right, title and
interest previously enjoyed by Xxxx Inc., Xxxx of Bond Street, Inc., and Xxxx
Creations, Inc., the debtors in the Cases (collectively, the "Debtors") in and
to the business and assets of the Debtors; and
WHEREAS, Trustee desires to sell and transfer to Purchaser, and Purchaser
desires to acquire from Trustee, all of Trustee's right, title and interest in
and to said assets, all on the terms and conditions set forth herein; and
WHEREAS, the sale and transfer of said assets by Trustee to Purchaser was
approved by an Order Authorizing Sale of Assets Pursuant to 11 U.S.C. 363(b),
(f) of the Court dated January 23, 1995, and this Agreement is pursuant thereto
and not in limitation thereof;
NOW, THEREFORE, in consideration of the mutual representations, warranties,
covenants and agreements herein set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
SALE OF ASSETS
1.1 Subject Assets. (a) Subject to the terms and conditions of this
Agreement, Trustee hereby sells and transfers to Purchaser, and Purchaser hereby
purchases from Trustee, all of Trustee's right, title and interest in and to the
assets, properties, rights and claims of every type and nature and wherever
situated, real, personal, tangible, intangible or contingent, previously owned
or held by the Debtors and used in the conduct of the Debtors' business (the
"Business") and currently owned or held by Trustee, other than the Excluded
Assets (collectively, the "Subject Assets"), including, without limitation, all
of Trustee's right, title and interest, if any, in the following assets,
properties or rights which are or were used or held for use in the Business and
which on the date hereof are owned or held by Trustee:
(i) the machinery, equipment, furniture, tools, supplies and other
tangible personal property wherever located;
(ii) the inventory, raw materials, work-in-process and finished goods,
and stores, supplies and spare parts,
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wherever located (including, without limitation, inventory in transit);
(iii) all foreign, federal, state and local governmental licenses,
permits, approvals and authorizations, whether foreign or domestic, which
are assignable;
(iv) all trade names, trademarks and service marks, patents, patent
rights, copyrights, whether domestic or foreign (as well as applications,
registrations or certificates for any of the foregoing), inventions, trade
secrets, proprietary processes, software and other intellectual property
rights, including, without limitation, those listed on Schedule 1.1(a) (iv)
hereto;
(v) all license agreements and franchise agreements listed on Schedule
1.1(v) hereto (the "Assumed Contracts");
(vi) all books and records, including computerized records and any
associated software and documentation, including, without limitation, books
and records relating to sales or marketing information, customer lists and
information, sales invoices and personnel records for the employees of
Debtors, except that the Trustee or its representatives shall have the
right of access to all of the foregoing and to make copies thereof upon
reasonable notice;
(vii) all purchase order forms, other forms, labels, stationery,
shipping materials, catalogues, brochures,
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artwork mechanicals, artwork used or held for use in connection with the
business, photographs and advertising materials;
(viii) prepaid expenses and tax refunds;
(ix) all stock in subsidiaries, securities of any kind and interests
in joint ventures and partnerships, which are listed on Schedule 1.1(a)
(xii) hereto; and
(xiii) all other tangible and intangible properties owned by Trustee.
(b) The inclusion of an item on any Schedule hereto shall not be deemed a
representation or affirmation by Trustee that Trustee in fact has any rights in
or with respect to such item, Trustee makes no such representation or
affirmation, and Trustee hereby expressly disclaims any implied representation
or affirmation to the contrary. Trustee has prepared the Schedules entirely on
the basis of information and documents provided by third parties without
independent investigation or verification of such information or documents by
Trustee. Trustee is selling, and Purchaser is acquiring, the Subject Assets
pursuant to the order of the Court dated January 23, 1995, free and clear of all
liens, claims and encumbrances, with such liens, claims and encumbrances, if
any, to attach to the proceeds of such sale, and Trustee gives no independent
warranty or representation as to title, merchantability, fitness for a
particular purpose, validity, completeness, condition or any other
characteristic of the Subject Assets.
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1.2 Excluded Assets. Trustee shall not sell, and Purchaser shall not
purchase, any of the following (the "Excluded Assets")
(a) all leases of real and personal property, subject to the
acquisition of certain leases of real property by Oldco Bijoux, Inc. by
payment under Section 2.1(c) hereof (the "Oldco Bijoux Purchase");
(b) all accounts receivable, including without limitation all accounts
receivable of the Debtors which represent amounts due from any subsidiary
of the Debtors;
(c) all deposits of cash with third parties for performance due from
such parties to the Debtors or the Trustee;
(d) all claims and choses in action, except that the parties agree to
determine subsequent to the Closing the disposition of any claims against
Deloitte & Touche;
(e) all cash and cash equivalents;
(f) all preference claims of the estates of the debtors in the Cases
which may be asserted under Section 547 of the Bankruptcy Code; and
(g) all other contracts which are not assumed and assigned to
Purchaser.
1.3 Liabilities. It is expressly agreed that Trustee is not transferring
and Purchaser is not acquiring, assuming or otherwise in any manner becoming
responsible for any liabilities, debts, commitments or other obligations of the
Debtors or
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Trustee, whether or not related to the Subject Assets, whether absolute or
contingent, due or unmatured, direct or indirect, or of any kind whatsoever,
including without limitation the following listed liabilities and obligations:
(a) all liabilities for foreign, federal, state and local income and
franchise taxes incurred by the Debtors or Trustee with respect to periods
ending on or prior to the Closing Date or incurred by Trustee with respect
to any of the transactions contemplated hereby;
(b) all liabilities and obligations, whether civil or criminal in
nature, arising out of any actual or alleged violation by Trustee, or by
any previous owner of any of the Subject Assets, of any foreign, federal,
state or local law, rule, regulation, judicial or administrative order,
judgment or decree, or governmental permit, license, approval or
authorization (each a "Violation"), if such Violation occurred prior to the
Closing Date;
(c) all liabilities and obligations arising under the Assumed
Contracts and Leases if the rights of Trustee are, for any reason, not
transferred to, or the benefits thereunder are not otherwise made available
to, Purchaser at the Closing; and
(d) all liabilities and obligations of the Debtors or Trustee for
which claims have been made under the Debtors' or Trustee's insurance
contracts or policies prior to the Closing Date.
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ARTICLE II
CLOSING; PURCHASE PRICE
2.1 Purchase Price. The purchase price for the Subject Assets (the
"Purchase Price") shall be $1,475,000.00, of which $190,000 was previously
deposited with the Trustee on January 23, 1995, all of which Purchase Price
(including such deposit) shall be paid to Trustee at the Closing (as defined
below) as follows:
(a) purchaser's certified or bank check for $230,000;
(b) attorney's check of Finkel, Goldstein, Berzow & Xxxxxxxxxx for
$380,000;
(c) check from Oldco Bijoux, Inc in the amount of $500,000;
(d) release of deposit for $190,000;
(e) check from Galleria Limited for $125,000; and
(f) check from 000 Xxxxx Xxxxxx Corporation for $50,000.
2.2 Closing Date. The Closing under this Agreement (the "Closing") shall
take place at the offices of Pryor, Cashman, Xxxxxxx & Xxxxx, 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 on the date hereof (sometimes referred to herein as the
"Closing Date")
2.3 Trustee Closing Documents. At the Closing, Trustee shall execute and
deliver or use its best efforts to cause to be executed and delivered to
Purchaser the following:
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(a) Such bills of sale, assignments, trademark assignments (in
recordable form) and other instruments of transfer as shall be necessary or
required to transfer to Purchaser all of Trustee's right, title and
interest in and to all of the Subject Assets; and
(b) Such other instruments of transfer and other documents as counsel
to Purchaser shall determine are reasonably necessary in order to
effectuate the purposes of the transactions contemplated herein.
2.4 Purchaser Closing Documents. At the Closing, Purchaser shall execute
and deliver to Trustee such documents as counsel to Trustee shall determine are
reasonably necessary in order to effectuate the purposes of the transactions
contemplated herein.
2.5 Proceedings. All proceedings which shall be taken and all documents
which shall be executed and delivered by the parties on the Closing Date shall
be deemed to have been taken and executed simultaneously, and no proceeding
shall be deemed taken nor any documents executed or delivered until all have
been taken, executed and delivered.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF Trustee
Trustee hereby represents and warrants to Purchaser as follows:
3.1 Authority. This Agreement, and each other document contemplated by this
Agreement, has been duly executed
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and delivered by Trustee and constitutes a legal, valid and binding obligation
of Trustee enforceable against it in accordance with its terms. Pursuant to the
Order, Trustee has the authority to sell and transfer the Subject Assets to the
Purchaser in accordance with the terms of this Agreement.
ARTICLE IV
REPRESENTATIONS AND
WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Trustee as follows:
4.1 Due Organization, Etc. Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of New York,
and has all necessary corporate power and authority to own and operate the
Business and the Subject Assets.
4.2 Effect of Agreement, Etc. This Agreement and each other document
contemplated by this Agreement has been duly authorized by all necessary
corporate action of Purchaser. This Agreement and each other document
contemplated by this Agreement has been duly executed and delivered by Purchaser
and constitutes a legal, valid and binding obligation of Purchaser enforceable
against it in accordance with its terms.
4.3 No Violation. The execution, delivery and performance by Trustee of
this Agreement and each other document contemplated by this Agreement will not
violate, conflict with or otherwise constitute a default under (a) the
Purchaser's
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Certificate of Incorporation or by-laws; (b) any agreement or instrument to
which Purchaser is a party or by which it or its properties are bound; or (c)
any law, rule, regulation, judgment, order or decree of any government or
governmental agency or instrumentality to which Purchaser or its properties are
bound.
4.4 Acknowledgement. Purchaser hereby acknowledges that (a) it understands
and accepts the provisions of Section 1.1(b) hereof, (b) it has conducted, to
the extent it has deemed it desirable or necessary, its own investigation of the
Subject Assets, (c) Trustee has cooperated, to the extent requested, in such
investigation, (d) its execution, delivery and performance of this Agreement
have not been done in reliance on any representation or warranty of Trustee
except those expressly set forth in Article III hereof, and (e) notwithstanding
such investigation, the entire risk of the existence of disclosed and
undisclosed claims and/or disputes relating to the Subject Assets shall be borne
by Purchaser and Trustee shall have no liability there for.
ARTICLE V
POST-CLOSING MATTERS
5.1 Further Assurances. If, at any time after the Closing, Purchaser shall
consider or be advised that any further assignments, conveyances, certificates,
filings, instruments or documents or any other things are necessary or desirable
to vest, perfect or confirm in Purchaser title to the Subject Assets, or
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to consummate any of the transactions contemplated by this Agreement, then to
the extent that Trustee is legally able to do so without incurring liability,
Trustee shall, upon reasonable request from Purchaser, promptly execute and
deliver all such proper deeds, assignments, certificates, filings, instruments
and documents and do all things reasonably necessary and proper to vest, perfect
or confirm title in Purchaser and to otherwise carry out the purposes of this
Agreement.
5.2 The Trustee shall provide in any order dismissing the Cases that the
Court shall retain jurisdiction to authorize and/or direct the Trustee to
execute such documents as the Purchaser may reasonably require under Section
5.1.
ARTICLE VI
MISCELLANEOUS
6.1 Waivers and Amendments. (a) This Agreement may be amended, modified or
supplemented only by a written instrument executed by the parties hereto. The
provisions of this Agreement may be waived only by instrument in writing
executed by the party granting the waiver. No action taken pursuant to this
Agreement shall be deemed to constitute a waiver by the party of compliance by
any other party with any representation, warranty, covenant, or agreement
contained herein. The waiver by any party hereto of a breach of any provision of
this Agreement shall not operate or be construed as a further or continuing
waiver of such breach or as a waiver of any other or subsequent breach.
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(b) No failure on the part of any party to exercise, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of such right, power or remedy
by such party preclude any other for further exercise thereof or the exercise of
any other right, power or remedy. All remedies hereunder are cumulative and are
not exclusive of any other remedies provided by law.
6.2 Notices. All notices, requests, demands and other communications which
are required or may be given under this Agreement shall be in writing and shall
be deemed to have been duly given or made: if by hand, immediately upon
delivery; if by telex, telecopier, telegram or similar electronic device,
immediately upon sending, provided it is sent on a business day, but if not,
then immediately upon the beginning of the first business day after being sent;
if by Federal Express, Express Mail or any other reputable overnight delivery
service, upon confirmation of delivery by such carrier. All notices, requests
and demands are to be given or made to the parties at the following addresses
(or to such other address as either party may designate by notice in accordance
with the provisions of this paragraph).
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If to Purchaser: Merchants T&F, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx,
Vice President
With a copy to: Xxxxxx X. Xxxxxx, Esq.
Finkel, Goldstein, Berzow and Xxxxxxxxxx
00 Xxxxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to Trustee: Mr. Xxxx Xxxxx
Alco Capital Group, Inc.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy to: Xxxxxx X. Xxxxx, Esq.
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
6.3 Entire Agreement. With the exception of the record made at the hearing
of the Court held on January 23, 1995, before Judge Xxxxxxx Xxxxxx, this
Agreement and the schedules and exnibits hereto set forth the entire agreement
and understanding between the parties hereto with respect to the subject matter
hereof and supersede any prior negotiations, agreements, letters of intent,
understandings or arrangements between the parties hereto with respect to the
subject matter hereof.
6.4 Binding Effect; Benefits. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors and
permitted assigns. Nothing
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in this Agreement, expressed or implied, is intended to confer on any person
other than the parties hereto, or their respective successors, any rights,
remedies, obligations or liabilities under or by reason of this Agreement
provided that the parties acknowledge the rights of Oldco Bijoux, Inc. under the
Oldco Bijoux Purchase.
6.5 Non-Assignability. This Agreement and any rights pursuant hereto shall
not be assignable by either party hereto and any such purported assignment shall
be null and void provided that the parties acknowledge the rights of Oldco
Bijoux, Inc. under the Oldco Bijoux Purchase.
6.6 Applicable Law; Venue. This Agreement and the legal relations between
the parties hereto shall be governed by and construed in accordance with the
laws of the State of New York, applicable to contracts made and to be enforced
in such state. Any action brought by either party with respect to the
enforcement of this Agreement or damages from a breach hereof shall be commenced
exclusively in the United States Bankruptcy Court for the Southern District of
New York, and Purchaser consents to the jurisdiction of such Court. Each party
hereby waives its right to a trial by jury in such a proceeding.
6.7 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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6.8 Section and Other Headings. All headings of the Sections of this
Agreement are for convenience of reference only and do not form a part thereof
and shall not be used in any way to interpret or construe the terms hereof or
the intention of the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
PURCHASER: MERCHANTS T&F, INC.
By:
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Name:
Title:
See next page for signature of Trustee.
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/s/ Xxxx Xxxxx
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Xxxx Xxxxx, Chapter 11 Trustee
of Xxxx, Inc., et al.
