EXHIBIT 99.1
DEBT DISCHARGE AGREEMENT
dated as of November 8, 1996
by and among
XXXXXX NORTH AMERICA, INC.,
MILLENNIUM AMERICA INC.,
LYNTON GROUP, INC.,
LYNTON JET CENTRE, INC.
and
LYNTON PROPERTIES, INC.
TABLE OF CONTENTS
Page
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE I -- Definitions . . . . . . . . . . . . . . . . . . . . . . .3
1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . .3
ARTICLE II -- Obligations of Xxxxxx North America. . . . . . . . . . .6
2.01 Discharge of Obligations. . . . . . . . . . . . . . . . . .6
2.02 Surrender of Equity . . . . . . . . . . . . . . . . . . . .7
(a) Stock Certificates . . . . . . . . . . . . . . . . . .7
(b) Warrants . . . . . . . . . . . . . . . . . . . . . . .7
ARTICLE III --Obligations of Millennium America. . . . . . . . . . . .8
3.01 Termination of Leasehold Mortgage . . . . . . . . . . . . .8
ARTICLE IV -- Obligations of Lynton Group, Jet Centre and
Lynton Properties. . . . . . . . . . . . . . . . . . . .8
4.01 Payment . . . . . . . . . . . . . . . . . . . . . . . . . .8
4.02 Lease and Jet Fuel Agreement. . . . . . . . . . . . . . . .8
4.03 New Leasehold Mortgage Agreement. . . . . . . . . . . . . .9
ARTICLE V -- Conditions. . . . . . . . . . . . . . . . . . . . . . . .9
5.01 Conditions to Obligations of Xxxxxx North America 9
(a) Representations of Lynton Companies. . . . . . . . . .9
(b) Obligations of Lynton Companies. . . . . . . . . . . .9
(c) Consents . . . . . . . . . . . . . . . . . . . . . . .9
(d) Opinion. . . . . . . . . . . . . . . . . . . . . . . .9
(e) Corporate Proceedings. . . . . . . . . . . . . . . . .10
5.02 Conditions to Obligations of Millennium America . . . . . .
(a) Representations and Warranties of Lynton
Companies. . . . . . . . . . . . . . . . . . . . . .10
(b) Obligations of Lynton Companies. . . . . . . . . . . .10
(c) Opinion. . . . . . . . . . . . . . . . . . . . . . . .10
(d) Corporate Proceedings . . . . . 10
5.03 Conditions to Obligations of Lynton Companies. . . . . . . .11
(a) Representations of Xxxxxx North America . . . . . . . .11
(b) Obligations of Xxxxxx North America and
Millennium America. . . . . . . . 11
(c) Corporate Proceedings . . . . . . . 11
5.04 Conditions to Obligations of All Parties . . . . . . . 11
(a) No Proceedings. . . . . . . . 11
(b) No Violation of Law . . . . . . . . 12
ARTICLE VI -- Representations and Warranties . . . . . . . . 12
6.01 Representations and Warranties of
Lynton Companies . . . . . . . 12
(a) Corporate Status. . . . . . . 12
(b) Corporate Power and Authorization . . . . . . 12
(c) Execution and Binding Effect. . . . . . 12
(d) Governmental Approvals and Filings. . . . . . . . 12
(e) Absence of Conflicts. . . . . . . . 13
(f) Solvency. . . . . . 14
6.02 Representations and Warranties of Xxxxxx North
America. . . . . . . 14
(a) Corporate Status. . . . . . . 14
(b) Corporate Power and Authorization . . . . . . 14
(c) Execution and Binding Effect. . . . . . 14
(d) Governmental Approvals and Filings. . . . . . . . 14
(e) Absence of Conflicts. . . . . . . . 14
(f) Title to Common Shares, Preferred
Shares and Warrants . . . . . . . . 15
(g) Transfer of Loan Documents. . . . . . . 15
(h) Lost Certificate. . . . . . . 15
ARTICLE VII -- Miscellaneous . . . . . . 16
7.01 Further Assurances . . . . . . 16
7.02 Amendments . . . . . . . 16
7.03 Notices. . . . . . . 16
7.04 Severability . . . . . . 17
7.05 Prior Understandings . . . . . . . 17
7.06 Duration; Survival . . . . . . 17
7.07 Counterparts . . . . . . 18
7.08 Governing Law. . . . . . 18
7.09 No Third Party Beneficiaries . . . . . . 18
7.10 Assignment . . . . . . . 18
7.11 Timing . . . . . . . 18
DEBT DISCHARGE AGREEMENT
THIS DEBT DISCHARGE AGREEMENT dated as of November 8,
1996 (this "Agreement"), by and among XXXXXX NORTH AMERICA, INC.,
a Delaware corporation ("Xxxxxx North America"), MILLENNIUM
AMERICAN INC., a Delaware corporation formerly named Xxxxxx
America Inc. ("Millennium America"), LYNTON GROUP, INC., a
Delaware corporation ("Lynton Group"), LYNTON JET CENTRE, INC., a
New Jersey corporation ("Jet Centre"), and LYNTON PROPERTIES,
INC., a New Jersey corporation ("Lynton Properties").
RECITALS
A. Pursuant to the Credit Agreement dated as of
August 14, 1990 (as heretofore amended, the "Credit Agreement"),
HM Holdings, Inc., presently named Millennium Holdings Inc. ("HM
Holdings") has made loans to Lynton Group and Jet Centre.
X. Xxxxxx North American has succeeded to HM Holdings
as lender under the Credit Agreement, and has acquired certain
assets of HM Holdings (including the Obligations, as defined in
Section 1 and the equity securities described in Recital C).
X. Xxxxxx North America is the owner of 848,455 shares
of Common Stock, par value $.30 per share (the "Common Shares"),
of Lynton Group, 2,000 shares of Series D Preferred Stock, par
value $.01 per share, of Lynton Group (the "Preferred Shares")
and warrants to purchase an aggregate of 247,513 shares of
Common Stock, par value $.30 per share, of Lynton Group (the
"Warrants").
X. Xxxxxx North America has agreed to cancel such
loans and surrender such equity to Lynton Group on the terms and
subject to the conditions set forth in this Agreement.
E. Millennium America has guaranteed certain
obligations of Jet Centre, and Jet Centre's obligation to
reimburse Millennium America for any payments made by Millennium
America pursuant to such guaranty are secured by a First
Leasehold Mortgage, Security Agreement, Financing Statement and
Fixture Filing dated August 14, 1990 from Jet Centre as amended
by the First Modification of Leasehold Mortgage, Security
Agreement, Financing Statement and Fixture Filing dated as of
June 21, 1994 (which mortgage and modification were recorded in
the office of the Clerk of Xxxxxx County, New Jersey in Mortgage
Book 3431, Page 185 and in Mortgage Book 5647, Page 001,
respectively) (the "Leasehold Mortgage").
E. Millennium America has agreed to terminate the
Leasehold Mortgage on the terms and subject to the conditions set
forth in this Agreement.
NOW, THEREFORE, the parties hereto, intending to be
legally bound hereby, covenant and agree as follows:
ARTICLE I
Definitions
1.01 Definitions. In addition to other words and
terms defined elsewhere in this Agreement, as used herein the
following words and terms shall have the following meanings,
respectively, unless the context hereof otherwise clearly
requires:
"Assignment Termination" shall have the meaning give to
that term in Section 2.01.
"Closing" shall mean the consummation of the
transactions contemplated by this Agreement.
"Closing Date" shall mean the date on which the Closing
occurs as mutually agreed by the parties hereto, but in no
event later than November 22, 1996.
"Collateral" shall have the meaning given to that term
in the Credit Agreement.
"Common Shares" shall have the meaning given to that
term in Recital C.
"Consent" shall have the meaning given to that term in
Section 5.01(c).
"Credit Agreement" shall have the meaning given to that
term in Recital A.
"Debt Discharge and Release" shall have the meaning
given to that term in Section 2.01(b).
"Equity Transfer Documents" shall have the meaning
given to that term in Section 2.02.
"Governmental Action" shall have the meaning given to
that term in Section 5.01(d).
"Governmental Authority" shall mean any government or
political subdivision or any agency, authority, bureau,
central bank, commission, department or instrumentality of
either, or any court, tribunal, grand jury or arbitrator.
"Xxxxxx North America" shall have the meaning given to
that term in the Preamble.
"HM Holdings" shall have the meaning given in Recital
A.
"Jet Centre" shall have the meaning given to that term
in the Preamble.
"Jet Fuel Agreement" shall have the meaning given to
that term in Section 4.02.
"Law" shall mean any law (including common law),
constitution, statute, treaty, convention, regulation, rule,
ordinance, order, injunction, writ, decree or award of any
Governmental Authority.
"Lease Amendment" shall have the meaning given to that
term in Section 4.02.
"Leasehold Mortgage" shall have the meaning given to
that term in Recital E.
"Leasehold Mortgage Termination" shall have the meaning
given to that term in Section 2.01(f).
"Lien" shall have the meaning given to that term in the
Credit Agreement.
"Loan Documents" shall have the meaning given to that
term in the Credit Agreement.
"Lost Certificate" shall have the meaning given in
Section 2.01.
"Lynton Companies" shall mean Lynton Group, Jet Centre
and Lynton Properties.
"Lynton Group" shall have the meaning given to that
term in the Preamble.
"Lynton Properties" shall have the meaning given to
that term in the Preamble.
"Millennium America" shall have the meaning given to
that term in the Preamble.
"Notes" shall have the meaning given to that term in
the Credit Agreement.
"New Leasehold Mortgage Agreement" shall have the
meaning given to that term in Section 4.03.
"Obligations" shall (i) the "Obligations" as such term
is defined in the Credit Agreement and (ii) to the extent
not otherwise included in clause (i), the $500,000 loan made
by HM Holdings to Lynton Group in October 1994, together
with interest thereon, which loan is included in "the
balance outstanding under revolving credit facility with HM
Holdings" in Note 6 to Lynton Group's financial statements
for the fiscal year ended September 30, 1995.
"Person" shall mean an individual, corporation,
partnership, trust, unincorporated association, joint
venture, joint-stock company, Governmental Authority or any
other entity.
"Preferred Shares" shall have the meaning given to that
term in Recital C.
"Receipt and Release" shall have the meaning given to
that term in Section 4.01.
"Release of Liens" shall have the meaning given to that
term in Section 2.01(c).
"Solvent" means, with respect to any Person at any
time, that at such time (a) the sum of the debts and
liabilities (including, without limitation, contingent
liabilities) of such Person is not greater than all of the
assets of such Person at a fair valuation, (b) the present
fair salable value of the assets of such Person is not less
than the amount that will be required to pay the probable
liability of such Person on its debts as they become
absolute and matured, (c) such Person has not incurred, will
not incur, does not intend to incur, and does not believe
that it will incur, debts or liabilities (including, without
limitation, contingent liabilities) beyond such person's
ability to pay as such debts and liabilities mature, (d)
such Person is not engaged in, and is not about to engage
in, a business or a transaction for which such person's
property constitutes or would constitute unreasonably small
capital, and (e) such Person is not otherwise insolvent as
defined in, or otherwise in a condition which could in any
circumstances then or subsequently render any transfer,
conveyance, obligation or act then made, incurred or
performed by it avoidable or fraudulent pursuant to, any Law
that may be applicable to such Person pertaining to
bankruptcy, insolvency or creditors' rights (including but
not limited to the Bankruptcy Code of 1978, as amended, and,
to the extent applicable to such Person, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer
Act, or any other applicable Law pertaining to fraudulent
conveyances or fraudulent transfers or preferences).
"Termination Statements" shall have the meaning given
to that term in Section 2.01(e).
"Transaction Documents" shall mean this Agreement, the
Lease Amendment, the Jet Fuel Agreement, the Debt Discharge
and Release, the Release of Liens, the Termination
Statements, the Leasehold Mortgage Termination, the
Assignment Termination, the Equity Transfer Documents, the
Receipt and Release and the New Leasehold Mortgage
Agreement.
"Warrants" shall have the meaning given to that term in
Recital C.
ARTICLE II
Obligations of Xxxxxx North America
2.01 Discharge of Obligations. Upon satisfaction of
the conditions set forth in Sections 5.01 and 5.04 hereof, the
Obligations shall be fully discharged, all Loan Documents shall
automatically terminate, all commitments of Xxxxxx North America
and HM Holdings to lend shall automatically terminate, and all
Liens of Xxxxxx North America and HM Holdings on the Collateral
shall be released; provided, that notwithstanding the foregoing,
any indemnification obligations of the parties to the Loan
Documents that are stated to survive termination of the Loan
Documents shall continue in effect in accordance with their
respective terms. In furtherance of the foregoing, and subject
to the conditions set forth in Sections 5.01 and 5.04 hereof, at
the Closing, Xxxxxx North America shall deliver to Lynton Group
the following documents:
(a) The outstanding Notes duly endorsed to Xxxxxx
North America marked "Cancelled";
(b) An Acknowledgment of Discharge of Debt and Release
in the form of Exhibit A hereto (the "Debt Discharge and
Release");
(c) A General Release of Liens in the form of Exhibit
B hereto (the "Release of Liens");
(d) The stock certificates and stock powers listed on
Schedule 2.01(d) hereto;
(e) UCC-3 termination statements with respect to the
financing statements listed on Schedule 2.01(e) hereto (the
"Termination Statements");
(f) A Termination of Leasehold Mortgage in the form of
Exhibit C hereto (the "Leasehold Mortgage Termination"); and
(g) A Termination of Assignment of Leases and Rents in
the form of Exhibit D hereto (the "Assignment Termination").
Xxxxxx North America hereby agrees to indemnify Lynton
Group and hold Lynton Group harmless from and against any and all
claims, losses or damages, including expenses, costs and
reasonable attorneys' fees, that Lynton Group may incur arising
out of the loss or destruction of any certificate which is
indicated on Schedule 2.01(d) as having been lost or destroyed
(the "Lost Certificate") being transferred to any third party
without notice of any adverse claim; provided, Xxxxxx North
America shall not be obligated to indemnify Lynton Group for any
such claims, losses or damages that result from Lynton Group's
negligence. If Xxxxxx North America finds any Lost Certificate,
it shall promptly deliver it to Lynton Group.
2.02 Surrender of Equity. Subject to satisfaction of
the conditions set forth in Sections 5.01 and 5.04 hereof, at the
Closing, Xxxxxx North America shall surrender to Lynton Group the
following:
(a) Certificates representing the Common Shares and
the Preferred Shares; and
(b) Certificates representing the Warrants,
in each case with such stock powers or other instruments of
transfer as may be reasonably requested by Lynton Group (the
Equity Transfer Documents").
ARTICLE III
Obligations of Millennium America
3.01 Termination of Leasehold Mortgage. Subject to
the satisfaction of the conditions set forth in Sections 5.03 and
5.04 hereof, at the Closing, Millennium America will execute and
deliver to Jet Centre the Leasehold Mortgage Termination. .
ARTICLE IV
Obligations of Lynton Companies
4.01 Payment. Subject to the satisfaction of the
conditions set forth in Sections 5.03 and 5.04 hereof, at the
Closing, Lynton Group shall pay, or cause to be paid, to Xxxxxx
North America, the sum of $3,5000,000 by wire transfer, in
immediately available funds, to an account designated by Xxxxxx
North America, and shall execute a Receipt and Release in the
form of Exhibit E hereto (the "Receipt and Release").
4.02 Lease and Jet Fuel Agreement. Subject to the
satisfaction of the conditions set forth in Sections 5.03 and
5.04 hereof, at the Closing, Jet Centre shall execute and deliver
to Xxxxxx North America and Millennium America Holdings Inc. an
Assignment, Assumption and Amendment of Agreement of Lease in the
form of Exhibit F hereto (the "Lease Amendment") and a Jet Fuel
Agreement in the form of Exhibit G hereto (the "Jet Fuel
Agreement").
4.03 New Leasehold Mortgage Agreement . Subject to
the satisfaction of the conditions set forth in Sections 5.03 and
5.04 hereof, at the Closing, the Lynton Companies shall execute
and deliver to Xxxxxx North America and Millennium America a New
Leasehold Mortgage Agreement in the form of Exhibit H hereto (the
"New Leasehold Mortgage Agreement").
ARTICLE V
Conditions
5.01 Conditions to Obligations of Xxxxxx North
America. The obligations of Xxxxxx North America under Article
II are subject to the satisfaction, at or prior to Closing, of
each of the following conditions (all or some of which may be
waived by Xxxxxx North America):
(a) Representations of Lynton Companies. All of the
representations and warranties set forth in Section 6.01
shall be true and correct as of the Closing Date.
(b) Obligations of Lynton Companies. All of the
covenants and obligations of the Lynton Companies required
to be performed at or prior to Closing shall have been duly
performed.
(c) Consents. Consents to the transactions
contemplated by this Agreement in form and substance
satisfactory to Xxxxxx North America from the parties listed
on Schedule 5.01(c) (the "Consents") shall have been
obtained and copies thereof shall have been delivered to
Xxxxxx North America.
(d) Opinion. There shall have been delivered to
Xxxxxx North America an opinion of counsel to the Lynton
Companies, in form and substance satisfactory to Xxxxxx
North America, as to the matters set forth in Schedule
5.01(c).
(d) Corporate Proceedings. There shall have been
delivered to Xxxxxx North America certificates by the
Secretary or Assistant Secretary of each of Lynton Group and
Jet Centre, dated as of the Closing Date as to (i) true
copies of the articles of incorporation and by-laws (or
other constituent documents) of each such Person in effect
on such date, (ii) true copies of all corporate action taken
by each of Lynton Group and Jet Centre relative to this
Agreement and the other Transaction Documents to which it is
a party and (iii) the incumbency and signature of the
respective officers of each of Lynton Group and Jet Centre
executing this Agreement and such other Transaction
Documents, together with satisfactory evidence of the
incumbency of such Secretary or Assistant Secretary.
5.02 Conditions to Obligations of Millennium America.
The obligations of Millennium America under Article III are
subject to the satisfaction, at or prior to Closing, of each of
the following conditions (all or some of which may be waived by
Millennium America):
(a) Representations of Lynton Companies. All of the
representations and warranties set forth in Section 6.01
shall be true and correct as of the Closing Date.
(b) Obligations of Lynton Companies. All of the
covenants and obligations of the Lynton Companies required
to be performed at or prior to Closing shall have been duly
performed.
(c) Opinion. There shall have been delivered to
Xxxxxx North America an opinion of counsel to the Lynton
Companies, in form and substance satisfactory to
Millennium America, as to the matters set forth in Schedule
5.01(d).
(e) Corporate Proceedings. There shall have been
delivered to Millennium America certificates by the
Secretary or Assistant Secretary of Lynton Properties, dated
as of the Closing Date as to (i) true copies of its articles
of incorporation and by-laws (or other constituent
documents) in effect on such date, (ii) true copies of all
corporate action taken by Lynton Properties relative to this
Agreement and the other Transaction Documents to which it is
a party and (iii) the incumbency and signature of the
officers of Lynton Properties executing this Agreement and
such other Transaction Documents, together with satisfactory
evidence of the incumbency of such Secretary or Assistant
Secretary.
5.03 Conditions to Obligations of the Lynton
Companies. The obligations of the Lynton Companies under Article
IV are subject to the satisfaction, at or prior to Closing, of
each of the following conditions (all or some of which may be
waived by the Lynton Companies):
(a) Representations of Xxxxxx North America. All of
the representations and warranties set forth in Section 6.02
shall be true and correct as of the Closing Date.
(b) Obligations of Xxxxxx North America and Millennium
America. All of the covenants and obligations of Xxxxxx
North America and Millennium America required to be
performed at or prior to Closing shall have been duly
performed.
(c) Corporate Proceedings. There shall have been
delivered to Lynton Group certificates by the Secretary or
Assistant Secretary of Xxxxxx North America and Millennium
America, dated as of the Closing Date as to (i) true copies
of the articles of incorporation and by-laws (or other
constituent documents) of each such Person in effect on such
date, (ii) true copies of all corporate action taken by each
of such Person relative to the Transaction Documents to
which it is a party and (iii) the incumbency and signature
of the respective officers of each of such Person executing
this Agreement and such Transaction Documents, together with
satisfactory evidence of the incumbency of such Secretary or
Assistant Secretary.
5.04 Conditions to Obligations of All Parties The
obligations of all parties hereto are subject to the
satisfaction, at Closing, of each of the following conditions:
(a) No Proceedings. No action, suit, litigation,
investigation or other proceeding shall have been commenced
involving any challenge to, or seeking damages or other
relief in connection with, any of the transactions
contemplated by this Agreement or that would have the effect
of preventing, delaying, making illegal or otherwise
interfering with any of the transactions contemplated by the
Agreement.
(b) No Violation of Law. Neither the consummation nor
performance of any of the transactions contemplated hereby
will contravene or conflict with or violate any applicable
Law.
ARTICLE VI
Representations and Warranties
6.01. Representations and Warranties of Lynton
Companies Each of the Lynton Companies hereby represents and
warrants to Xxxxxx North America and Millennium America as
follows:
(a) Corporate Status. Each of the Lynton Companies is
a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of
incorporation.
(b) Corporate Power and Authorization. Each of the
Lynton Companies has corporate power and authority to
execute, deliver, perform, and take all actions contemplated
by, each Transaction Document to which it is a party, and
all such action has been duly and validly authorized by all
necessary corporate proceedings on its part.
(c) Execution and Binding Effect. Each Transaction
Document to which a Lynton Company is a party has been duly
and validly executed and delivered by such Lynton Company.
Each Transaction Document to which a Lynton Company is a
party constitutes the legal, valid and binding obligation of
such Lynton Company, enforceable against such Lynton
Company, in accordance with its terms except as the
enforceability thereof may be limited by bankruptcy,
insolvency or other similar laws of general application
affecting the enforcement of creditors' rights or by general
principles of equity limiting the availability of equitable
remedies.
(d) Governmental Approvals and Filings. No approval,
order, consent, authorization, certificate, license, permit
or validation of, or exemption or other action by, or
filing, recording or registration with, or notice to, any
Governmental Authority (collectively, "Governmental Action")
is or will be necessary or advisable in connection with the
execution and delivery of the Transaction Documents by the
Lynton Companies, consummation by the Lynton Companies of
the transactions herein or therein contemplated, or
performance of or compliance with the terms and conditions
hereof or thereof by the Lynton Companies.
(e) Absence of Conflicts. Neither the execution and
delivery of the Transaction Documents by the Lynton
Companies, nor consummation by the Lynton Companies of the
transactions herein or therein contemplated, nor performance
of or compliance with the terms and conditions hereof or
thereof does or will
(i) violate or conflict with any Law, or
(ii) violate, conflict with or result in a breach
of any term or condition of, or constitute a
default under, or result in (or give rise to any
right, contingent or otherwise, of any person to
cause) any termination, cancellation, prepayment
or acceleration of performance of, or result in
the creation or imposition of (or give rise to any
obligation, contingent or otherwise, to create or
impose) any Lien upon any of property of any
Lynton Company pursuant to, or otherwise result in
(or give rise to any right, contingent or
otherwise, of any Person to cause) any change in
any right, power, privilege, duty or obligation of
any Lynton Company under or in connection with,
(A) the articles of incorporation or by-laws
(or other constituent documents) of any
Lynton Company,
(B) any agreement or instrument creating,
evidencing or securing any indebtedness or
guaranty to which any Lynton Company is a
party or by which either of them or any of
their respective properties (now owned or
hereafter acquired) may be subject or bound,
or
(C) any other agreement or instrument to
which any Lynton Company is a party or by
which either of them or any of their
respective properties (now owned or hereafter
acquired) may be subject or bound,
except for (x) matters listed on Schedule 6.01(e) hereto as
to which a consent, waiver, amendment or agreement has been
duly obtained and is in full force and effect, and (y) in
the case of clause (ii)(C), matters that, individually or in
the aggregate, could not have a material adverse effect on
the business, financial condition or results of operations
of any Lynton Company. Schedule 6.01(e) hereto sets forth
each consent, waiver, amendment or agreement which has been
obtained in respect of any matter which would, absent such
consent, waiver, amendment or agreement, be within the scope
of the foregoing clause (e), and Xxxxxx America and
Millennium America have received a true, correct and
complete copy of each such consent, waiver, amendment or
agreement and of each of the underlying agreements or
instruments to which it relates.
(f) Solvency. On and as of the Closing Date, after
consummation of the transactions contemplated hereby, and
after giving effect to all obligations and liabilities being
incurred on such date in connection therewith, each of
Lynton Company is and will be Solvent.
6.02 Representations and Warranties of Xxxxxx North
America. Xxxxxx North America represents and warrants to Lynton
Group and Jet Centre as follows:
(a) Corporate Status. Xxxxxx North America is a
corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of
incorporation.
(b) Corporate Power and Authorization. Xxxxxx North
America has corporate power and authority to execute,
deliver, perform, and take all actions contemplated by, each
such Transaction Document, and all such action has been duly
and validly authorized by all necessary corporate
proceedings on its part.
(c) Execution and Binding Effect. Each Transaction
Document to which Xxxxxx North America is a party has been
duly and validly executed and delivered by Xxxxxx North
America. Each such Transaction Document constitutes the
legal, valid and binding obligation of Xxxxxx North America
enforceable against Xxxxxx North America in accordance with
its terms except as the enforceability thereof may be
limited by bankruptcy, insolvency or other similar laws of
general application affecting the enforcement of creditors'
rights or by general principles of equity limiting the
availability of equitable remedies.
(d) Governmental Approvals and Filings. No
Governmental Action is or will be necessary or advisable in
connection with the execution and delivery of the
Transaction Documents by Xxxxxx North America, consummation
by Xxxxxx North America of the transactions herein or
therein contemplated, or performance of or compliance with
the terms and conditions hereof or thereof by Xxxxxx North
America.
(e) Absence of Conflicts. Neither the execution and
delivery of the Transaction Documents by Xxxxxx North
America, nor consummation by Xxxxxx North America of the
transactions herein or therein contemplated, nor performance
of or compliance with the terms and conditions hereof or
thereof does or will
(i) violate or conflict with any Law, or
(ii) violate, conflict with or result in a breach
of any term or condition of, or constitute a
default under, or result in (or give rise to any
right, contingent or otherwise, of any person to
cause) any termination, cancellation, prepayment
or acceleration of performance of, or result in
the creation or imposition of (or give rise to any
obligation, contingent or otherwise, to create or
impose) any Lien upon any of property of Xxxxxx
North America pursuant to, or otherwise result in
(or give rise to any right, contingent or
otherwise, of any Person to cause) any change in
any right, power, privilege, duty or obligation of
Xxxxxx North America under or in connection with,
(A) the articles of incorporation or by-laws
of Xxxxxx North America,
(B) any agreement or instrument creating,
evidencing or securing any indebtedness or
guaranty to which Xxxxxx North America is a
party or by which it or any of its respective
properties (now owned or hereafter acquired)
may be subject or bound, or
(C) any other agreement or instrument to
which Xxxxxx North America is a party or by
which it or any of its respective properties
(now owned or hereafter acquired) may be
subject or bound,
except, in the case of clause (ii)(C), for matters that,
individually or in the aggregate, could not have a material
adverse effect on the business, financial condition or
results of operations of Xxxxxx North America and its
subsidiaries.
(f) Title to Common Shares, Preferred Shares and
Warrants. Xxxxxx North America is the lawful owner of the
Common Shares, Preferred Shares and Warrants, free and clear
of all Liens.
(g) Successor under Credit Agreement. Xxxxxx North
America is the lawful ultimate assignee of HM Holdings with
respect to all of HM Holdings rights under the Credit
Agreement and the Loan Documents and with respect to the
outstanding Obligations. None of such interests have been
transferred or otherwise encumbered and no other party has
any rights with respect thereto.
(h) Lost Certificates. Neither Xxxxxx North America
nor any of its predecessors under the Credit Agreement has
endorsed, pledged, sold, assigned or otherwise transferred
any Lost Certificate or the shares represented by the Lost
Certificate to any third party.
ARTICLE VII
Miscellaneous
7.01 Further Assurances. From and after the Closing,
at the request of Lynton Group but without cost to Xxxxxx North
America or Millennium America, Xxxxxx North America and
Millennium America will duly execute and deliver such other
instruments of release and discharge and take such other action
as Lynton Group reasonably may require in order to more
effectively discharge the Obligations, release all Liens on the
Collateral and surrender the Common Shares, the Preferred Shares
and the Warrants to Lynton Group.
7.02 Amendments. This Agreement may not be amended or
modified except by an instrument in writing signed by or on
behalf of all the parties hereto.
7.03 Notices. All notices, requests, demands,
directions and other communications (collectively "notices")
under this Agreement shall be in writing (including telecopied
communication) and shall be sent by first-class mail, or by
nationally-recognized overnight courier, or by telecopier (with
confirmation in writing mailed first-class or sent by such an
overnight courier), or by personal delivery. All notices shall
be sent to the applicable party at the address stated on the
signature pages hereof or in accordance with the last unrevoked
written direction from such party to the other parties hereto, in
all cases with postage or other charges prepaid. Any such
properly given notice shall be effective when received.
7.04 Severability. The provisions of this Agreement
are intended to be severable. If any provision of this Agreement
shall be held invalid or unenforceable in whole or in part in any
jurisdiction such provision shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability
without in any manner affecting the validity or enforceability
thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction.
7.05 Prior Understandings. This Agreement and the
other Transaction Documents supersede all prior and
contemporaneous understandings and agreements, whether written or
oral, among the parties hereto relating to the transactions
provided for herein and therein.
7.06 Duration; Survival. All representations and
warranties of the each party hereto contained herein or in any
other in the Transaction Document or made in connection herewith
or therewith shall survive the making of, and shall not be waived
by the execution and delivery, of this Agreement or any other
event or condition whatever.
7.07 Counterparts. This Agreement may be executed in
any number of counterparts and by the different parties hereto on
separate counterparts each of which, when so executed, shall be
deemed an original, but all such counterparts shall constitute
but one and the same instrument.
7.08 Governing Law. THIS AGREEMENT AND ALL OTHER
TRANSACTION DOCUMENTS (EXCEPT TO THE EXTENT, IF ANY, OTHERWISE
EXPRESSLY STATED IN SUCH OTHER TRANSACTION DOCUMENTS) SHALL BE
GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW JERSEY, WITHOUT REGARD TO CHOICE OF LAW
PRINCIPLES.
7.09 No Third Party Beneficiaries. Nothing in this
Agreement shall entitle any Person other than the parties hereto
to any claim, cause of action, remedy or right of any kind.
7.10 Assignment. No party hereto shall assign this
Agreement or any part hereof without the prior written consent of
the other parties.
7.11 Timing. The transactions contemplated by this
Agreement shall be deemed to have occurred as of September 30,
1996.
IN WITNESS WHEREOF, the parties hereto, by their
officers thereunto duly authorized, have executed and delivered
this Agreement as of the date first above written.
XXXXXX NORTH AMERICA, INC.
By /s/Xxxx X. Xxxxxxx
Title: Vice President
Address for Notices:
Xxxx XX, CIBA
000 Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx
MILLENNIUM AMERICA INC.
By /s/Xxxxxx X. Xxxxxxxxx, III
Title Senior Vice President
Address for Notices:
00 Xxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: C. Xxxxxxx Xxxxxxx, Esq.
LYNTON GROUP, INC.
By /s/Xxxxx X'Xxxxxxx
Title: Vice President
Address for Notices:
0 Xxxxxxx Xxxx
Xxxxxxxxxx Municipal Airport
Xxxxxxxxxx, XX 00000
Attn: Xxxxx X'Xxxxxxx
LYNTON JET CENTRE, INC.
By /s/Xxxxx X'Xxxxxxx
Title: Vice President
Address for Notices:
0 Xxxxxxx Xxxx
Xxxxxxxxxx Municipal Airport
Xxxxxxxxxx, XX 00000
Attn: Xxxxx X'Xxxxxxx
LYNTON PROPERTIES, INC.
By /s/Xxxxx X'Xxxxxxx
Title: Vice President
Address for Notices:
0 Xxxxxxx Xxxx
Xxxxxxxxxx Municipal Airport
Xxxxxxxxxx, XX 00000
Attn: Xxxxx X'Xxxxxxx
EXHIBITS
EXHIBIT A Acknowledgment of Discharge of Debt and
Release
EXHIBIT B General Release of Liens
EXHIBIT C Leasehold Mortgage Termination
EXHIBIT D Assignment Termination
EXHIBIT E Receipt and Release
EXHIBIT F Lease Amendment
EXHIBIT G Jet Fuel Agreement
EXHIBIT H New Leasehold Mortgage Agreement
SCHEDULES
Schedule 2.01(d) Pledged Shares
Schedule 2.01(e) Financing Statements
Schedule 5.01(c) Lynton Opinion Matters
Schedule 6.01(e) Required Consents
