EXHIBIT 2.2
J.J.L. Holdings Company Ltd. and
M.B.A. Holdings Company, Ltd.
Standard Form Asset Purchase Contract
This Standard Form Asset Purchase Contract ("Agreement") is made and
entered into as of this 30th day of June, 1998 (the "Effective Date") by
and between J.J.L. Holdings Company Ltd., an Ohio limited liability
company whose principal place of business is at 0000 Xxxxxx, Xxxxxxxxxx,
Xxxx 00000 ("J.J.L.") and M.B.A. Holdings Company, Ltd., an Ohio limited
liability company whose principal place of business is at P. O. Xxx 000,
Xxxx, Xxxx 00000 (together with J.J.L., hereinafter "Purchaser"), and
Xxxxxxx International, Inc. a Delaware corporation whose principal place
of business is 0000 Xxxxxxx Xxxxxxx, Xxxxx Xxxxx, Xxxxx 00000
(hereinafter "Seller") for certain Assets (as defined herein) located at
0000 Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx, and at 000 Xxxxxx Xxxxxx,
Xxxxxxxx, Xxxx ("Seller's Walnut Street Premises").
Recital:
Seller desires to sell to Purchaser and Purchaser desires to purchase
from Seller all of the Assets (as defined herein) according to the terms
and conditions set forth in this Agreement. The purpose of this
Agreement is to set forth the terms and conditions of such purchase and
sale.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which Seller and Purchaser herewith expressly acknowledge,
Seller and Purchasers agree as follows:
Purchase Price; Payment of the Purchase Price. The total purchase price
for the Assets (and the real property being conveyed pursuant to a
certain "Standard Deposit Receipt and Real Estate Purchase Contract"
between the parties hereto and of even date herewith (the "Real Property
Purchase Agreement")) shall be the sum of $4,360,000.00; there being no
allocation of the purchase price between the two said contracts, such
contracts shall be construed as one contract for all matters concerning
the purchase price. Subject to the provisions hereof dealing with
deposits, the Purchaser shall pay the balance of the purchase price at
the Closing (as defined herein) by cashier's check or certified funds.
Letters of Credit. Purchaser shall provide Seller with standby letters
of credit in the aggregate amount of $4,360,000.00 and upon the terms and
conditions mutually agreeable to Seller and Purchaser ("Letters of
Credit").
Contingency. The obligations of Purchaser are subject to Purchaser and
Seller entering into a Real Estate Purchase Agreement for sale of the
real property of Seller located on Xxxxxxxxxx Street in Hamilton Ohio
(the "Real Property").
The terms and conditions of this Agreement continue on the 3 pages that
follow. Signatures on the face of this Agreement constitute agreement to
the terms and conditions set forth in this entire Agreement.
IN WITNESS WHEREOF, Seller and Purchaser have set their respective hands
below as of the Effective Date.
Purchasers: Seller:
J.J.L. Holdings Company Ltd. Xxxxxxx International, Inc.
By: Xxxxxxx X. Xxxxxx By: Xxxxxx X. Xxxxxxxxxxxxx
Its: Its: Treasurer & Chief Financial Officer
M.B.A. Holdings Company, Ltd.
By: Xxxxx Bowing
Its:
1. Definitions. Some of the defined terms of this Agreement are
defined as follows:
"Assets" shall mean: (i) such assets as may be specifically described on
Exhibit A hereto; or (ii) unless otherwise set forth on Exhibit A hereto,
all assets located on the Premises and owned by Seller or in which Seller
has any right or interest as of the Effective Date. Such Assets shall
include the changes and additions, if any, thereto (but not deletions
therefrom) as may occur from the Effective Date to the date of Closing in
the ordinary course of business of Seller and consistent with the terms
and conditions of this Agreement (collectively, "the Assets"). Whether
or not a description of the Assets is set forth on Exhibit A hereto, such
Assets shall include any and all tangible or intangible assets used
directly in connection with any of the Assets, including, without
limitation: instruction manuals, repair manuals, warranties, literature,
tools, attachments, dies, jigs, patterns, computer software (used solely
in connection with the use and operation of the machinery and equipment
but excluding all other software used in connection with the operation of
the Seller's business which excluded software shall include financial
reporting software, manufacturing software and other software used
throughout the Seller's business), spare or replacement parts, supplies
and consumables, electrical controls, and dust collection equipment;
provided, however that the Assets shall not include (i) any interests in
or to the corporate names of Seller or any of its affiliates, including
Xxxxxxx International, Inc. and all variances thereof and all rights to
use such names as trademarks; (ii) any intellectual property, including,
but not limited to, patents, trademarks, service marks, trade names,
copyrights and all related and equivalent rights including moral rights,
rights in industrial designs, mask works, trade secrets, technology,
know-how, processes, designs, drawings, electrical and pneumatic
schematics, manuals, formulas, bills of materials and research and
development files, of Seller (the "Intellectual Property") whether or not
used in connection with the Assets (provided, however that Seller shall
grant to Purchaser a nonexclusive, nontransferable license to use any
such Intellectual Property that is owned by Seller and used in connection
with the Assets) or (iii) such assets specifically described on Exhibit
B. The Purchaser shall have the right, which may be exercised in its
sole discretion, to decline to acquire title or possession or both, to
any of the Asset(s) purchased hereunder and as to such declined asset(s)
Purchaser shall not have any further duties in respect thereto; provided,
however, that with respect to any Asset(s) not purchased hereunder then
Purchaser shall have no right to reduce the Purchase Price.
"Premises" means the business premises of Seller at the manufacturing
portion and not the business office portion of Walnut Street Premises and
its Xxxxxxxxxx Drive location also in Hamilton Ohio.
2. Closing. The following terms apply to the Closing referred to in
this Agreement. The Closing shall occur at the Seller's offices in
Hamilton, Ohio as soon as practicable, but in no event shall Closing
occur later than July 22, 1998. Unless the Seller and Purchaser
otherwise agree in writing, if the Closing has not occurred by July 22,
1998, then either Seller or Purchaser may terminate this Agreement,
subject to the legal rights and remedies of either party arising out of
the other party's breach of any of the provisions of this Agreement.
Seller and Purchaser will in good faith use all reasonable efforts to
achieve the Closing.
3. Conditions of Closing. The Closing of this transaction is
expressly conditioned upon the occurrence of the following: (i) the
simultaneous closing of the Real Property Agreement for sale of the
Seller's real estate located at 0000 Xxxxxxxxxx Xxxxx xx Xxxxxxxx, Xxxx;
(ii) all liens on the property, both real and personal, to be sold under
this Agreement and as provided for under the Real Property Agreement
shall have been released and (iii) the assignment by Seller of its rights
under that certain Phase I and Limited Phase II ESA prepared for Seller
by Dames and Xxxxx dated May 7, 1998.
4. Sale and Purchase of Assets. Seller shall assign, convey, deliver,
sell and transfer to Purchaser, and Purchaser shall accept, acquire and
purchase from Seller, all right, title and interests of Seller in and to
the Assets, which shall be conveyed to Purchaser at the Closing free and
clear of any claim, encumbrance, lien, mortgage, pledge, security
interest or any other interest of any kind or nature. The assignment,
conveyance, delivery, sale and transfer of the Assets shall be effected
by a xxxx of sale, with warranty of title, from Seller to Purchaser and
all such other bills of sale, assignments, consents, endorsements,
releases, terminations and other instruments in such form and substance
as Purchaser may reasonably request.
5. Standby Letters of Credit. Purchaser shall provide Seller with
standby letters of credit in the aggregate amount of $4,360,000.00 and
upon the terms and conditions mutually agreeable to Seller and Purchaser
("Letters of Credit").
6. No Liabilities Assumed. Except as expressly set forth in this
agreement, Purchaser assumes no liabilities, debts, or contractual
obligations of the Seller.
7. Purchaser's Auction Sale on Seller's Premises. Purchaser
anticipates that the Assets being purchased hereunder will be resold by
Purchaser at an auction sale ("Auction Sale"). As to the Auction Sale,
Purchaser and Seller agree as follows: Purchaser will use its phone and
fax numbers in all advertising of the Auction Sale, however, should
Seller receive any inquiries regarding the Auction Sale, all pre-auction
inquiries shall be immediately referred to Purchaser. Purchaser shall be
responsible for the cost and preparation of any and all of its
advertising and brochures. Seller hereby grants to Purchaser a limited,
nontransferable, nonexclusive license to use the name and logo of Seller
in such advertising and brochures and photos of the Assets and of
Seller's business premises to advertise the sale. Purchaser shall have
the absolute right to determine all of the terms of such Auction Sale and
Seller shall cooperate with Purchaser in all respects. The Auction Sale
shall be held at the Seller's Walnut Street Premises and Purchaser's
premises at 0000 Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx. The Purchaser shall
be entitled to use such portions of the Seller's Premises as are
reasonably necessary for the preparation of the Assets pending the
Auction Sale, the conduct of the Auction Sale itself and the loading and
shipment of the Assets following the Auction Sale; provided, however,
that (i) all Assets shall be removed from Seller's Walnut Street Premises
upon the earlier of 45 days following the Auction Sale or November 15,
1998; (ii) Purchaser shall indemnify and hold Seller harmless from any
losses, damages or claims arising from or in connection with the Auction
Sale; and (iii) Purchaser shall make Seller a named insured under
Purchaser's liability insurance policies until after the removal of all
Assets from the Seller's Premises. Purchaser shall provide and pay the
cost of all of the services to be performed in connection with the
Auction Sale, except that Seller shall pay and provide: heat, light,
power, water and any other necessary utilities related to the Premises
and security of the Premises and the Assets.
8. Environmental Matters. Seller hereby agrees that within 30 days
following the Closing, Seller shall (i) deliver to Purchaser copies of
the closing documentation for the removal of those certain 2,000, 3,000
and 22,000 gallon underground heating oil storage tanks and any other
underground storage tanks on the Premises (closing documentation shall
include any permits, approvals, inspection reports, contracts for
removal, invoices for removal or remediation, soil testing results and
any other documentation mutually agreed to by the parties); and (ii)
remove all drums, whether empty or not, coolants including oil based
coolants, except hydraulic oils, from the Assets and the Premises,
including, without limitation, the several drums in the "obsolete
equipment boneyard" and the "empty drum storage" area and the chemicals
in the "oil/water separator" near the southwest corner of the gear cell
building. Seller agrees that $20,000 from the purchase price may be
withheld from the payment at Closing and held in escrow to secure the
obligations of Seller under this section. If Seller fails to comply with
the provisions of this section Purchaser may take such actions and
receive reimbursement from the escrowed funds.
9. Independent Contractor. The parties hereto agree and acknowledge
that the Purchaser is an independent contractor and not a partner of the
Seller and that neither party has the authority to act for or on behalf
of the other or to bind the other to any contract on any matter. The
Purchaser and the Seller agree that the relationship created by this
Agreement is that of independent contractor and not that of employee and
employer. Subject to the provisions of this Agreement, each party is
responsible for the payment of their respective taxes, including, without
limitation, all federal, state and local personal and business income
taxes, sales and use taxes, other business taxes and license fees. Each
party shall bear the cost and obligation to provide their respective
employees unemployment and workers' compensation benefits or insurance
coverages.
10. Representations, Warranties and Agreements of Seller. Seller
represents and warrants to (and all such representations and warranties
shall survive the Closing and delivery of the instruments pursuant hereto
for a period of one year), and agrees with Purchaser as follows: Seller
is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware. Seller has full power and
authority to own all of the Assets and is duly qualified to do business
and is in good standing in every jurisdiction in which any of such Assets
are located or titled except where the failure to be so qualified would
not have a material adverse effect on the Assets. The execution,
delivery and performance of this Agreement by Seller has been or will be
duly authorized by the board of directors of Seller in accordance with
all applicable laws and the articles of incorporation and the by-laws of
Seller, and at the Closing no further corporate action will be necessary
on the part of Seller to make this Agreement valid and binding on Seller
and enforceable against Seller except as such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance or
similar laws affecting the rights of creditors generally or the
availability of equitable remedies. The execution, delivery and
performance of this Agreement by Seller (i) is not contrary to the
articles of incorporation or the by-laws of Seller, (ii) except as set
forth in Exhibit C attached hereto, does not now and will not, with the
passage of time, the giving of notice or otherwise, result in a violation
or breach of, or constitute a default under, any term or provision of any
indenture, mortgage, deed of trust, lease, instrument, order, judgment,
decree, rule, regulation, law, contract, agreement or any other
restriction to which Seller is a party or to which Seller or any of its
respective assets is subject or bound, (iii) except as set forth in
Exhibit C attached hereto will not result in the creation of any lien or
other charge upon any assets of Seller, and (iv) except as set forth in
Exhibit C attached hereto, will not result in any acceleration or
termination of any loan or security interest agreement to which Seller is
a party or to which Seller or the Assets is subject or bound. Except as
may be expressly set forth herein and except as set forth in Exhibit C
attached hereto, no approval or consent of any person, firm or other
entity or governmental body is or was required to be obtained by Seller
for the authorization of this Agreement or the performance by Seller of
the obligations of Seller under this Agreement. Seller owns and
possesses and will own and possess as of the Closing all rights, title
and interests in and to the Assets, including, without limitation free
and clear of all easements, liens, security interests, encumbrances, and
other title defects or restrictions of any nature. Seller has and will
have as of the Closing the rights, power and capacity to assign, convey,
deliver, sell and transfer the Assets free and clear of any title defect
or restriction. All tangible Assets of Seller are in the possession or
under the control of Seller. The Assets are being acquired by Purchaser
from Seller "AS IS, WHERE IS WITH ALL FAULTS". Seller enjoys peaceful
and quiet possession of the Assets pursuant to or by all of the deeds,
bills of sale, leases, licenses and other agreements under which Seller
is operating and engaged in business. EXCEPT AS OTHERWISE EXPRESSLY
PROVIDED IN THIS PARAGRAPH, SELLER IS MAKING NO REPRESENTATION OR
WARRANTY, ACTUAL OR IMPLIED, AS TO THE ASSETS.
11. Representations, Warranties and Agreements of Purchaser. Purchaser
represents and warrants to (and all such representations and warranties
shall survive the Closing and delivery of instruments pursuant hereto for
period of one year) and agrees with Seller, as follows: Purchaser is
corporation duly organized, validly existing and in good standing under
the laws of the State of Ohio. Purchaser has full corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions as contemplated hereby. The execution, delivery and
performance of this Agreement by Purchaser has been duly authorized by
the board of directors of Purchaser in accordance with all applicable
laws and the articles of incorporation and code of regulations of
Purchaser, and at the Closing, no further corporate action will be
necessary on the part of Purchaser to make this Agreement valid and
binding on Purchaser and enforceable against Purchaser. The execution,
delivery and performance of this Agreement (i) is not contrary to the
articles of incorporation or the code of regulations of Purchaser, (ii)
does not now and will not, with the passage of time, the giving of notice
of otherwise, result in a violation or breach of or constitute a default
under any term or provision of any indenture, mortgage, deed of trust,
lease, instrument, order, judgment, decree, rule, regulation, law,
contract, agreement or any other restriction to which Purchaser is a
party, or to which Purchaser or any of its respective assets is subject
or bound, (iii) will not result in the creation of any lien or other
charge upon any assets of Purchaser, and (iv) will not result in any
acceleration or termination of any loan or security interest agreement to
which Purchaser is a party, or to which Purchaser is subject or bound.
Except as may be expressly set forth herein no approval or consent of any
person, firm or other entity or governmental body is or was required to
be obtained by Purchaser for the authorization of this Agreement or the
performance by Purchaser of the obligations of Purchaser thereunder.
12. Insurance Casualty. Each party is responsible to keep in force all
liability insurance coverages and vehicle insurance on their respective
property in accordance with their customary practices. In the event
prior to the Closing the Assets suffer a casualty (i) in the amount of
$400,000 or less then the Purchaser shall be entitled to receive the
insurance proceeds from Seller's liability coverage with respect to the
Assets (the "Proceeds") and Seller shall pay the amount equal to the
deductible under such coverage to Purchaser (the "Deductible") and (ii)
in excess of $400,000 then the Purchaser, at its option, may terminate
this Agreement or elect to receive the Proceeds and the Deductible.
13. Licenses. Purchaser shall conduct all auctions through a licensed
auctioneer under the laws of the State of Ohio.
14. Indemnity. Seller agrees to indemnify Purchaser and hold it
harmless from any loss, claim, liability, cost or expense, including
reasonable attorneys fees and costs of litigation (collectively,
"Claims"), arising out of or in connection with any matter which Seller
has warranted hereunder including without limitation, products liability
Claims arising prior to the Closing with respect to the Assets and the
Claims of creditors of Seller or other claimants against Seller, unless
the same is caused solely by the gross negligence, willful or wanton
conduct of the Purchaser or its agents or employees. Should any
liability of Seller, whether known or unknown, contingent or not
contingent, existing at the time of Closing or thereafter at any time be
asserted against Purchaser whether or not such claim is well founded,
under any theory, including, without limitation, that Purchaser is a
successor to Seller, that all or any part of the Assets are subject to
such liabilities, debts, or contractual obligations, that there is a
security interest in the Assets securing any liabilities, debt, or
contractual obligations of Seller, that there has been a fraudulent
conveyance of the Assets or otherwise, then in such event, Seller
indemnify Purchasers from such costs (including attorneys fees)
reasonably incurred to defend any such Claims and shall indemnify
and hold Purchaser harmless from any Claim in connection therewith.
Purchaser agrees to indemnify Seller, its directors, officers, agents,
attorneys and affiliates, harmless from and against all Claims asserted
against or incurred by any such indemnities by reason of or resulting
from (a) breach by Purchaser of any representation, warranty or covenant
of Purchaser contained herein, (b) arising out of the ownership use or
operation of the Assets after the Closing Date and (c) and sales,
transfer or other taxes assessed or payable in connection with the
transfer of Assets from Seller to Purchaser.
15. Indemnification Procedures. The respective obligations and
liabilities of Seller and Purchaser (the "indemnifying party") to the
other (the "party to be indemnified") with respect to Claims resulting
from the assertion of liability by third parties shall be subject to the
following terms and conditions. Within twenty (20) days (or such earlier
time as might be required to avoid prejudicing the indemnifying party's
position) after receipt of notice of commencement of any action evidenced
by service of process or other legal pleading, the party to be
indemnified shall give the indemnifying party written notice thereof,
together with a copy of such claim, process or other legal pleading, and
the indemnifying party shall have the right to undertake the defense
thereof by representatives of its own choosing and its own expense;
provided that the party to be indemnified may participate in the defense
with counsel of its own choice, the fees and expenses of which counsel
shall be paid by the party to be indemnified unless (i) the indemnifying
party has agreed to pay such fees and expenses, (ii) the indemnifying
party has failed to assume the defense of such action or (iii) the named
parties to any such action (including any impleaded parties) include both
the indemnifying party and the party to be indemnified and the party to
be indemnified has been advised by counsel that there may be one or more
legal defenses available to it that are different from or additional to
those available to the indemnifying party (in which case, if the party to
be indemnified informs the indemnifying party, the indemnifying party
shall not have the right to assume the defense of such action on behalf
of the party to be indemnified, it being understood, however, that the
indemnifying party shall not, in connection with any one such action
or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more
than one separate firm of attorneys at any time for the party to be
indemnified, which firm shall be designated in writing by the party to be
indemnified). In the event that the indemnifying party, by the thirtieth
(30th) day after receipt of notice of any such claim (or, if earlier, by
the tenth (10th) day preceding the day on which an answer or other
pleading must be served in order to prevent judgment by default in favor
of the person asserting such claim), does not elect to defend any such
claim, the party to be indemnified will, upon further notice to the
indemnifying party have the right to undertake the defense, compromise or
settlement of such claim on behalf of and for the account of and risk of
the indemnifying party and at the indemnifying party's expense, subject
to the right of the indemnifying party to assume the defense of such
claims, prior to settlement, compromise or final determination thereof.
The party to be indemnified and the indemnifying party will each
cooperate with all reasonable requests of the other.
16. Indemnification Limitations. Seller's obligation to indemnify
Purchaser set forth herein, shall, notwithstanding any other provision of
this Asset Purchase Agreement, be limited such that any indemnification
Claims against Seller shall be subject to a $25,000.00 threshold for all
such claims in the aggregate, and recovery shall be limited to amounts in
excess of such $25,000.00 threshold; and Seller shall not be obligated to
indemnify Purchaser in excess of the aggregate purchase price received by
Seller hereunder.
17. Default.
(a) Permitted Termination. If this Agreement is terminated by
either party pursuant to a right expressly given it to do so hereunder
(herein referred to as a "Permitted Termination"), the Letters of Credit
shall immediately be returned to Purchaser and neither party shall have
any further rights or obligations hereunder.
(b) Default by Seller. Seller shall be in default hereunder upon
the occurrence of any one or more of the following events: (a) any of
Seller's warranties or representations set forth herein are untrue in a
material respect; or (b) Seller shall fail to meet, comply with or
perform any covenant, agreement, or obligation on its part required
within the time limits and in the manner required in this Agreement, for
any reason other than a Permitted Termination; or (c) Seller shall fail
to deliver at the Closing any of the items required of Seller hereof, for
any reason other than a Permitted Termination; or (d) Seller shall be in
default under the Real Estate Purchase Agreement. In the event of a
default by Seller hereunder, Purchaser may, as Purchaser's sole and
exclusive remedy, do any one of the following: (i) terminate this
Agreement and the Real Property Purchase Agreement by written notice
delivered to Seller at or prior to the Closing; or (ii) enforce specific
performance of this Agreement and the Real Property Purchase Agreement
against Seller.
(c) Default by Purchaser. Purchaser shall be in default hereunder
upon the occurrence of any one or more of the following events: (a)
Purchaser shall fail to meet, comply with or perform any covenant,
agreement, or obligation on its part required within the time limits and
in the manner required in this Agreement, for any reason other than a
Permitted Termination; or (b) Purchaser shall fail to deliver at the
Closing any of the items required of Purchaser hereof, for any reason
other than a Permitted Termination; or (c) Purchaser shall be in default
under the Real Property Purchase Agreement. In the event of a default by
Purchaser hereunder, Seller may present the standby letter of credit for
payment and shall be entitled to the amounts thereunder. In addition,
Seller shall be entitled to exercise any and all other remedies allowed
by applicable law including enforcing performance of this Agreement and
the Real Property Purchase Agreement; provided that any amounts received
by Seller under the standby letter of credit shall be applied, dollar for
dollar, against any damages or reimbursements to which Seller is entitled
hereunder.
(d) Breakup Fee. In lieu of any other remedies hereunder, Seller
fails to consummate the transactions contemplated hereby and Purchaser
shall not otherwise be in default hereunder and Seller sells the Assets
and the Real Property to another third party on or before October 31,
1998 for a purchase price equal to or in excess of the purchase price
provided for herein, Seller shall upon consummation of such transaction,
pay Purchaser a fee of $436,000.
18. Construction, Integration and Binding Effect. This Agreement shall
be construed and enforced to the fullest extent possible pursuant to the
laws of the State of Ohio. This Agreement, together with the Schedules,
represent and constitute the entire agreement of the parties regarding
the subject matter hereof, and supersedes all prior discussions,
negotiations, understandings, agreements, representations or other
communications. This Agreement shall be binding upon and shall inure to
the parties' respective heirs, executors, personal representatives,
successors and assigns.
19. Confidentiality. Each party acknowledges that, in the course of
performing its duties under this Agreement, it may obtain information
which is of a confidential and proprietary nature. Such information may
include, but is not limited to trade secrets, know-how, inventions,
techniques, processes, programs, schematics, customer lists and financial
information. Each party owns and intends to maintain its ownership of
all such information (the "Confidential Information"). Each party shall
at all times, maintain in the strictest confidence and trust all such
Confidential Information received, and shall not use such Confidential
Information other than as contemplated under this Agreement.
20. Notices. All notices, requests, demands and other communications
under this Agreement must be in writing and will be deemed duly given,
unless otherwise expressly indicated to the contrary in this Agreement,
(i) when personally delivered, (ii) upon receipt of a telephonic
facsimile transmission with a confirmed telephonic transmission answer
back, (iii) three (3) days after having been deposited in the United
States mail, certified or registered, return receipt requested, postage
prepaid, or (iv) one (1) business day after having been dispatched by a
nationally recognized overnight courier service, addressed as set forth
in this Agreement (or at such other address or number as is given in
writing by a party after the Effective Date).
21. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original but all of
which together will constitute one and the same document.
22. Captions and Section Headings. Captions and section headings are
for convenience only, are not a part of this Agreement and may not be
used in construing it.
23. Possession of Assets. Possession of the Assets will be given to
Purchaser on the Closing. Purchaser will not acquire any title to the
Assets until possession has been given to it in accordance with this
Agreement, and, accordingly, all risk and loss with respect to the Assets
will be borne by Seller until possession has been given to Purchaser.
For purposes of this Agreement, possession will be deemed to have been
given to Purchaser when Seller delivers or causes to be delivered to
Purchaser good and sufficient instruments of transfer and conveyance as
provided in this Agreement; provided, however, that in the event that
Purchaser pays all or part of the purchase price for the Assets,
Purchaser may, at Purchaser's option, deem all or a part of the Assets
sold to Purchaser without any document of title or conveyance having been
yet transferred and exercise any or all of such rights as an owner of the
Assets or part thereof might reasonably exercise.
24. Waivers. Any failure by Seller or by Purchaser to comply with any
of the obligations, agreements or conditions set forth in this Agreement
may be waived by the other, but any such waiver will not be deemed a
waiver of any other obligation, agreement or condition set forth in this
Agreement.
25. Right of Inspection. From and after the Effective Date to the
Closing, Seller will give to Purchaser and the accountants and other
representatives of Purchaser, reasonable access during normal business
hours to the Assets and upon Purchaser's request, Seller will furnish to
Purchaser, at Purchaser's expense, copies of any agreements or records,
which are in Seller's possession that relate to the Assets. Such
investigation will not affect the warranties and representations of
Seller under this Agreement. All such information will be treated
confidentially and will be used only for the purposes intended. If the
transactions contemplated under this Agreement do not take place, all
documents and other property of Seller will be returned and all
disclosures and information given to Purchaser as contemplated under this
Agreement will be treated as confidential and not disclosed to others
unless disclosed publicly by Seller or other third parties without fault
on the part of Purchaser, or unless otherwise required by law.
26. Amendment. This Agreement may not be amended, changed or modified
in any respect whatsoever except in a writing signed by Purchaser and
Seller.
27. Assignment. The rights of the Purchaser and of Seller under this
Agreement are assignable; provided that any such assignment shall not
release Purchaser from its obligations under the Letters of Credit.
28. Cooperation. Seller and Purchaser shall cooperate in the
effectuation of the transactions contemplated under this Agreement and to
execute any and all additional documents to take such additional action
as is reasonably necessary or appropriate for such purposes.
29. Entire Agreement. This Agreement, including any certificate,
schedule, exhibit or other document delivered pursuant to its terms,
constitutes the entire agreement between Seller and Purchaser with regard
to the purchase and sale of the Assets.
30. Governing Laws. This Agreement shall be governed by and construed
in accordance with the laws of the State of Ohio.
31. Sales and Transfer Taxes. Purchaser shall be liable for and shall
indemnify Seller against any and all sales, transfer or other taxes
assessed or payable in connection with the transfer of the Assets from
Seller to Purchaser.
32. Cost, Expenses and Fees. Each party hereto shall pay all costs,
expenses and fees incurred by such party in connection with the
consummation of the transactions contemplated hereby (whether or not such
transactions are ultimately consummated).
33. Closing Deliveries. At the Closing, Seller shall deliver to
Purchaser the following: (a) a xxxx of sale conveying the Assets; (b) a
copy of resolutions of the Board of Directors of Seller, or the Executive
Committee of the Board of Directors of Seller, authorizing the execution,
delivery and performance of this Asset Purchase Agreement and all related
documents and agreements; (c) a certificate of a duly authorized officer
of Seller, dated the Closing Date, as to the truth and correctness in all
material respects of the representations and warranties of Seller. At
the Closing, Purchaser shall deliver to Seller the following: (a) the
purchase price by cashier's check or certified funds; (b) a copy of the
resolutions of the Board of Directors of Purchaser authorizing the
execution, delivery and performance of the Constituent Documents; (c) a
certificate of a duly authorized officer of Purchaser, dated the Closing
Date, as to the truth and correctness in all material respects of the
representations and warranties of Purchaser contained herein; and (d) the
original Letters of Credit.
34. Publicity. Promptly following execution of this Asset Purchase
Agreement, Seller may issue a press release announcing the transactions.
Except for such press release or as may be required by law or court or
administrative order or stock exchange rule, no party will issue any
press release or similar public statement unless the other party has been
provided a draft of such release and the opportunity to comment thereon.
END OF AGREEMENT
EXHIBIT A
Assets
EXHIBIT B
Excluded Assets
EXHIBIT C
Exceptions to Representations and Warranties
1. The sale of Assets is prohibited by and requires the consent of Bank
of America, N.A. ("B of A") pursuant to the Credit Agreement between
Seller and B of A. Seller expects to refinance the indebtedness
under the Credit Agreement pursuant to a Loan Agreement with Xxxxx
Fargo Bank, National Association ("Xxxxx"), in which case the sale
of Assets will require the consent of Xxxxx which Seller expects to
receive. In addition, the sale of the Asset requires the consent
of holders of Seller's Senior Subordinated Notes. The Seller
anticipates payment of the Senior Subordinated Notes prior to the
Closing, in which case, no consent would be required.
2. The sale of Assets without the required consents would result in
default under and possible acceleration of the indebtedness set
forth in No. 1 above.
