ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Agreement") is made and entered into
this 1st day of October, 2002, by and between Xxxxxx Brothers Holdings, Inc.,
d/b/a Xxxxxx Capital, a division of Xxxxxx Brothers Holdings, Inc. ("Xxxxxx"),
and Xxxxxxxx'x International, Inc. ("Buyer").
WHEREAS, Xxxxxx owns the Assigned Claims (as hereafter defined in
Section 1 below);
WHEREAS, Xxxxxx desires to sell and assign the Assigned Claims to
Buyer;
WHEREAS, Buyer desires to purchase the Assigned Claims from Xxxxxx; and
WHEREAS, Buyer and Xxxxxx have agreed upon the terms and conditions of
such sale and assignment, and desire to reduce the same to writing.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements, covenants, representations, warranties and promises set forth
herein, and in order to prescribe the terms and conditions of such assignment,
the parties hereto agree as follows:
1. Definitions. For the purposes of this Agreement, the following
terms shall have the meanings set forth below:
A. Asset Purchase Agreement: The Asset Purchase Agreement dated
July 16, 2002, among the Debtors and Buyer.
B. Assigned Claims: The Xxxxxx Senior Claims.
C. APA Closing Date: The date of the closing of the sale of the
Purchased Assets, as defined in the Asset Purchase Agreement, to Buyer
or to any other purchaser.
D. Buyer: Xxxxxxxx'x International, Inc.
E. Bankruptcy Court: The United States Bankruptcy Court for the
Southern District of Florida, Fort Lauderdale Division.
F. Closing Date: The date of the closing of the assignment and
sale contemplated by this Agreement, upon which the second installment
of the Purchase Price is received by Xxxxxx, which date shall in no
event be later than the APA Closing Date.
G. Debtors: Apple Capitol Group, LLC and certain subsidiaries,
which are debtors and debtors-in-possession in Chapter 11 proceedings
in the Bankruptcy Court.
H. Financing Order: The Financing Order ordered on September 4,
2002 by the Bankruptcy Court that, among other things, authorized the
Post-Petition Loan and Security Agreement, dated as of July 16, 2002,
among the Debtors and Xxxxxx.
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I. Interest: Interest shall be calculated at a rate per annum
based on the floating LIBOR rate.
X. Xxxxxx: Xxxxxx Brothers Holdings, Inc., d/b/a Xxxxxx Capital,
a division of Xxxxxx Brothers Holdings, Inc., which is the owner and
holder of the Assigned Claims.
X. Xxxxxx DIP Claims: All amounts owing to Xxxxxx under the
Post-Petition Loan and Security Agreement, dated as of July 16, 2002,
which was executed and delivered by the Debtors in favor of Xxxxxx
under the Financing Order and which evidences the Xxxxxx DIP Claims.
X. Xxxxxx Mezzanine Claims: All amounts that remain owing under
the Mezzanine Loan and Security Agreements between the Debtors and
Xxxxxx, each dated as of May 3, 1999, and the related promissory notes
and other documents, which evidence the Xxxxxx Mezzanine Claims and
pursuant to which, among other things, Xxxxxx made secured mezzanine
term loans and other financial accommodations to the Debtors and the
Debtors granted Xxxxxx security interests in substantially all of their
assets.
X. Xxxxxx Senior Claims: All amounts that remain owing under the
Senior Loan and Security Agreements between the Debtors and Xxxxxx,
each dated as of May 3, 1999, and the related promissory notes and
other documents, which evidence the Xxxxxx Senior Claims and pursuant
to which, among other things, Xxxxxx made secured senior term loans and
other financial accommodations to the Debtors and the Debtors granted
Xxxxxx security interests in substantially all of their assets.
N. Pre-Petition Collateral: The collateral described in the
Senior Loan and Security Agreements between the Debtors and Xxxxxx.
O. Purchase Price: $34,250,000 (the "Base Purchase Price"),
subject to adjustment as set forth in Section 2 below, and payable in
two installments.
P. Sale Motion: The motion of Debtors for an order approving,
among other things, proposed sale procedures and bidding protections in
connection with the Debtors' proposed sale of certain of their assets,
filed by the Debtors in the Bankruptcy Court.
Q. Settlement Term Sheet: The Settlement Term Sheet, dated
September 4, 2002, among the Debtors, Xxxxxx and the Official Committee
of Unsecured Creditors of Apple Capitol Group, LLC.
R. Termination Date: November 30, 2002, which will be extended to
be coterminous with the Drop Dead Date in the Asset Purchase Agreement,
except that any such extension will not be binding (i) on Xxxxxx if the
delay in closing hereunder or the extension in the Drop Dead Date was
caused by a Material Breach of Buyer under the Asset Purchase Agreement
or (ii) on either party hereto if the extension in the Drop Dead Date
hereunder was caused by a breach by the other party of any material
provision hereof.
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2. Assignment and Purchase.
(a) Subject to the terms and conditions of this Agreement, Xxxxxx
hereby agrees to sell, transfer and assign to Buyer on the Closing
Date, and Buyer hereby agrees to purchase from Xxxxxx on the Closing
Date, all of Xxxxxx'x rights, title and interest in the Assigned Claims
in exchange for (i) payment to Xxxxxx of the Purchase Price, (ii) the
performance by Buyer of its covenants and obligations under this
Agreement, and (iii) the performance by Xxxxxx of its covenants and
obligations under this Agreement. Buyer shall pay the first installment
of $17,125,000 (the "First Installment Amount") on the date hereof by
wire transfer of federal funds to Xxxxxx and a second payment of
$17,125,000 (the "Second Installment Amount"), subject to adjustment as
provided below, on the Closing Date by wire transfer of federal funds
to Xxxxxx. On the Closing Date, Xxxxxx shall deliver to Buyer an
Assignment of Claims. The parties acknowledge and agree that Xxxxxx
shall not sell, transfer or assign, and Buyer is not buying, the Xxxxxx
Mezzanine Claims and the Xxxxxx DIP Claims.
(b) The Purchase Price shall be adjusted upward, and the Second
Installment Amount increased, by the following amounts: (i) 8% of the
amount in excess of $35,000,000.00 and less than $37,000,000.01 that is
paid to the Debtors by Buyer for the Purchased Assets (as defined in
the Asset Purchase Agreement) and (ii) 12% of the amount in excess of
$37,000,000.00 that is paid to the Debtors by Buyer for the Purchased
Assets. To the extent that amounts are paid to the Debtors after the
APA Closing Date that result in an upward adjustment to the Purchase
Price under clause (i) or (ii), above, such additional Purchase Price
amount shall be paid promptly by Buyer to Xxxxxx, by wire transfer of
federal funds.
(c) In the event that Buyer is the purchaser of the Purchased
Assets, then to the extent that such amounts are not paid to Buyer by
wire transfer of federal funds or by cashiers check at the closing of
the Asset Purchase Agreement by, in the case of (i) and (ii), the
Escrow Agent, and in the case of (iii) through (v), the Debtors, but
are only used as an offset against the purchase price paid by Buyer for
the Purchased Assets, then the Purchase Price shall be adjusted
downward, and the Second Installment Amount decreased, by the following
amounts: (i) the Deposit (as defined in the Asset Purchase Agreement);
(ii) (A) the Gift Certificate Escrowed Amount and (B) the General
Escrowed Amount (both as provided in the Asset Purchase Agreement and
in the Escrow Agreement among Debtors and Buyer dated July 16, 2002);
(iii) the amounts necessary to satisfy the conditions to Buyers'
closing of the Asset Purchase Agreement under Sections 8.3(k) and (l);
(iv) the amount determined by Section 9.4(c) of the Asset Purchase
Agreement; and (v) the amount necessary for Debtors to deliver the
Purchased Asset under Section 1.1(m) of the Asset Purchase Agreement.
In the event any of (i) through (v), above, is deducted from the
Purchase Price and such amount is later paid to Buyer, Buyer will
immediately forward such amount to Xxxxxx by wire transfer of federal
funds or by cashiers check.
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3. Representations and Warranties.
(a) Xxxxxx represents and warrants to Buyer that as of the date
of this Agreement and as of the Closing Date: (i) the Assigned Claims
are not subject to any prior assignment, in whole or part; (ii) Xxxxxx
is the sole and lawful owner of the Assigned Claims, free and clear of
adverse claims, liens, interests and encumbrances; (iii) Xxxxxx has the
full corporate and legal power and authority to execute this Agreement
and to consummate the transactions contemplated herein; (iv) the
outstanding amount of the Xxxxxx Senior Claims on the date hereof is
not less than $42,000,000; (v) the outstanding amount of the Xxxxxx
Senior Claims will, at the Closing Date, be not less than $42,000,000
minus the amount of any Adequate Protection Claim payments each in the
amount of $458,000 made by the Debtors pursuant to the Financing Order,
from September 30, 2002 through the Closing Date (the "Closing Value");
(vi) the Xxxxxx Senior Claims are secured by valid and properly
perfected security interests on the date hereof (which shall be first
priority security interests as of the Closing Date) in the Pre-Petition
Collateral; (vii) if Buyer purchases the Purchased Assets, Buyer will
not be prohibited from offsetting the Assigned Claims against the
purchase price of the Purchased Assets or from paying to itself, or
retaining as a credit against, the purchase price of the Purchased
Assets in satisfaction of an equivalent amount of the Assigned Claims
(unless the Bankruptcy Court orders otherwise, in which case the
provisions of Section 5 (a) below shall apply); and (viii) it has
disclosed to Buyer any and all agreements or arrangements made or
approved by Xxxxxx regarding the payment of any amount owed by Xxxxxx
or the Debtors to the unsecured creditors of Debtors or to Phoenix
Management Services, Inc. By its acceptance of this Agreement, Buyer
acknowledges that, except for the above representations and warranties,
(i) Xxxxxx has not made and does not make any representation or
warranty, whether express or implied, of any kind or character in
connection with this Agreement, any aspect of the underlying
transactions, the financial condition of the Debtors, or the aforesaid
documents and (ii) the assignment by Xxxxxx of the Assigned Claims to
Buyer shall be irrevocable and without recourse to Xxxxxx.
(b) Buyer represents and warrants to Xxxxxx that as of the date
of this Agreement: (i) Buyer has the full corporate and legal power and
authority to execute this Agreement and to consummate the transactions
contemplated herein; and (ii) Buyer has and will maintain cash, cash
equivalents and availability under lines of credit in an amount greater
than the Base Purchase Price (free and clear of any liens and
restrictions) and such funds or the applicable portion thereof will be
available (free and clear of any liens or restrictions) to pay the
First Installment Amount on the date hereof and the Second Installment
Amount on the Closing Date, as well as any upward adjustments to the
Purchase Price. The obligations of Xxxxxx hereunder are subject to the
condition that the foregoing representations and warranties of Buyer
shall be true on and as of the Closing Date in all material respects.
4. Assignment and Assumption.
(a) On the Closing Date, Xxxxxx shall assign to Buyer all of
Xxxxxx'x rights under (i) the Senior Loan and Security Agreements among
the Debtors and Xxxxxx, each dated as of May 3, 1999 and
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all other agreements or arrangements as necessary to vest full
ownership of the Assigned Claims and all related security interests;
and (ii) the Asset Purchase Agreement other than Xxxxxx'x rights under
Section 2.1(b) thereof. Except as specifically set forth in Sections 4
(b) and 4 (c) below, Buyer shall not assume, take subject to and shall
not be liable for any liabilities or obligations of any kind or nature,
whether absolute, contingent, accrued, known or unknown, of Xxxxxx.
Specifically, but without limitation of any kind, Xxxxxx will retain
all rights in, and be solely liable for all of Xxxxxx'x obligations
under (i) the Post- Petition Loan and Security Agreement and all other
agreements supporting the Xxxxxx DIP Claims; (ii) the Mezzanine Loan
and Security Agreements and all other agreements supporting the Xxxxxx
Mezzanine Loan Claims; (iii) the Letter Agreement between Xxxxxx and
Xxx Xxxxxxxxx dated July 16, 2002; and (iv) any agreement or
arrangement made or approved by Xxxxxx regarding the payment of any
amount owed by Xxxxxx or the Debtors to third parties (it being
understood and agreed that the foregoing creates no obligation on the
part of Xxxxxx that it would not otherwise have).
(b) Notwithstanding the assignment of the Assigned Claims to
Buyer, Buyer acknowledges and agrees that (i) any Adequate Protection
Claim payments paid by the Debtors pursuant to the Financing Order
shall be paid directly for the account of Xxxxxx; (ii) any Proceeds of
Collateral (as defined in the Financing Order) other than Proceeds of
Purchased Assets (as defined in the Asset Purchase Agreement) shall be
the sole property of Xxxxxx and may be retained and applied by Xxxxxx
in repayment of the Xxxxxx DIP Claims and/or the Xxxxxx Mezzanine
Claims; and (iii) any amounts payable under Section 2.1(b) of the Asset
Purchase Agreement, as between Buyer and Xxxxxx, shall be the sole
property of Xxxxxx. Except as set forth in the preceding sentence,
after the Closing Date all amounts due pursuant to the Assigned Claims
shall be paid directly to Buyer.
(c) Buyer hereby consents to and agrees to comply with the terms
of (i) the Settlement Term Sheet among the Debtors, Xxxxxx and the
Official Committee of Unsecured Creditors of Apple Capitol Group, LLC
and (ii) any Settlement Agreement that is in accordance in all material
respects with, and in furtherance of, the Settlement Term Sheet and
that is approved by the Bankruptcy Court. Notwithstanding the preceding
sentence, as between Xxxxxx and Buyer, Buyer shall have no obligation
to fund any obligation under the Settlement Term Sheet, including, but
not limited to, the Creditor Fund, the Minimum Distribution, any
Additional Distribution (as such terms are defined in the Settlement
Term Sheet) and the fees and expenses of the Committee's professionals.
Xxxxxx hereby agrees that its representations to Buyer in Section
3(a)(iii), (iv), (v) and (vi) regarding the amount and priority of the
Assigned Claims are not conditioned on the effectiveness of a final
Settlement Agreement or on any assignment of the Settlement Term Sheet
or any settlement agreement to Buyer.
5. Further Covenants and Assurances.
(a) Xxxxxx shall execute and deliver such further assignments,
releases or other instruments as Buyer reasonably requests to
effectuate the transfer and assignment of the Xxxxxx Senior Claims to
Buyer, including, if Xxxxxx files any proofs of claim with respect to
the Assigned Claims prior to the Closing Date, an assignment of all
proofs of claim filed by Xxxxxx in the Chapter
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11 proceedings with respect to the Assigned Claims. In the event
that, as a result of Xxxxxx'x breach of any representation or warranty
under Section 3 (a) above Buyer is not permitted to use the Assigned
Claims as an offset to the purchase price on a dollar-for-dollar basis
in Buyer's purchase of the Purchased Assets up to the Closing Value or
to pay to itself, or retain as a credit against, the purchase price of
the Purchased Assets in satisfaction of an equivalent amount of the
Assigned Claims, Buyer's exclusive remedy shall be to, at its option,
either (i) reduce the Purchase Price and decrease the Second
Installment Amount payable to Xxxxxx by the requisite amount of the
purchase price of the Purchased Assets that Buyer must fund otherwise
than by such offset (and, if such reduction is insufficient to meet
such deficit in full, require that Xxxxxx pay to Buyer the balance
necessary to fund such deficit, with Interest), or (ii) cancel this
Agreement in its entirety and thereupon this Agreement will be deemed
void ab initio and Xxxxxx shall refund all amounts paid to it
hereunder, with Interest. In the event that the preceding sentence does
not apply and pursuant to an order of the Bankruptcy Court, Buyer is
not permitted to use the Assigned Claims as an offset to the purchase
price on a dollar-for-dollar basis in Buyer's purchase of the Purchased
Assets up to the Closing Value or to pay to itself, or retain as a
credit against, the purchase price of the Purchased Assets in
satisfaction of an equivalent amount of the Assigned Claims, Buyer's
exclusive remedy shall be to cancel this Agreement in its entirety and
thereupon this Agreement will be deemed void ab initio and Xxxxxx shall
refund all amounts paid to it hereunder, with Interest. In the event a
partial or full refund of amounts paid by Buyer to Xxxxxx hereunder is
required by virtue of the preceding sentence, Xxxxxx will immediately
deliver such payment by wire transfer of federal funds to Buyer or as
Buyer may direct. The parties agree that Buyer shall not be entitled to
a refund or payment hereunder unless it must pay cash (other than to
itself) at the closing of the purchase of the Purchased Assets rather
than receiving the benefit of the Assigned Claims. In the event Buyer
receives a refund or payment from Xxxxxx under this Section 5 and
thereafter Buyer is permitted to use the Assigned Claims as an offset
to the purchase price on a dollar-for-dollar basis in Buyer's purchase
of the Purchased Assets up to the Closing Value or to pay to itself, or
retain as a credit against, the purchase price of the Purchased Assets
in satisfaction of an equivalent amount of the Assigned Claims, Buyer
will promptly reimburse Xxxxxx the amount of such refund or payment,
with Interest, to which Buyer would not have been entitled.
(b) In the event Buyer purchases the Assigned Claims, unless and
until Xxxxxx'x Senior Claims are paid in full, Xxxxxx will not assert
any claims, liens and encumbrances against the Purchased Assets or the
proceeds of the Purchased Assets, including those related to the Xxxxxx
DIP Claims and the Xxxxxx Mezzanine Claims and will not transfer any
interest in the Xxxxxx DIP Claims or the Xxxxxx Mezzanine Claims unless
the transferee agrees with Buyer in writing also not to assert any
claims, liens or encumbrances against the Purchased Assets or the
proceeds of the Purchased Assets.
(c) Buyer hereby agrees that it will not (i) sell or assign the
Assigned Claims or its right to acquire the Assigned Claims other than
to a wholly-owned affiliate (in which event Buyer will not
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be relieved of its obligations hereunder), or (ii) sell or assign
its right to purchase the Purchased Assets prior to the APA Closing
Date other than to a wholly-owned affiliate (in which event Buyer will
not be relieved of its obligations hereunder).
6. Future Payments. If on the Closing Date, Debtors do not pay to
Buyer by cashiers check or wire transfer of federal funds the amount of
$1,691,633.30 in payment of unpaid royalties, advertising fees, finance charges
and other amounts owed by Debtors to Buyer, Xxxxxx shall honor any request of
Debtor to draw under the Post-Petition Loan and Security Agreement dated as of
July 16, 2002, the amounts necessary to make such payment. To the extent Debtors
do not make such payment the Purchase Price and Second Installment Amount will
be reduced by such unpaid amount.
7. Gift Certificate and General Escrowed Amounts.
(a) On the Closing Date, Buyer will (i) fund the Gift Certificate
Escrowed Amount and the General Escrowed Amount (as provided in the
Asset Purchase Agreement and in the Escrow Agreement among the Debtors
and Buyer dated July 16, 2002); (ii) immediately waive any and all
rights to the Gift Certificate Escrowed Amount and to the General
Escrowed Amount and direct the escrow agent to immediately release the
Gift Certificate Escrowed Amount and the General Escrowed Amount to the
Debtors in accordance with the terms of such Escrow Agreement; (iii)
immediately waive any and all claims for damages, in law or in equity,
that Buyer could assert against the Debtors for breaches of or defaults
in the performance of any representations, warranties, agreements or
covenants of Debtors under the Asset Purchase Agreement; and (iv) waive
the Debtor's obligation to pay all vacation and other paid time off
benefits, accrued in accordance with Debtor's standard policy, and
unused as of the APA Closing Date, of all Retained Employees of Seller
who are hired by Buyer and waive Buyer's right to reduce the purchase
price for the Purchased Assets under Section 8.2 (a) (v) of the Asset
Purchase Agreement.
8. Certain Payments. In the event Buyer does not purchase the
Purchased Assets:
(a) Because Xxxxxx has materially breached and failed to cure any
representation, warranty or covenant hereunder, Buyer may notify Xxxxxx
of such breach, Buyer will not purchase the Assigned Claims and will
have no payment liability to Xxxxxx hereunder, and Xxxxxx will refund
to Buyer all amounts paid to Xxxxxx hereunder, with Interest.
(b) Because a condition under Section 8.3(a), (b), (c), (d), (i),
or (n) of the Asset Purchase Agreement was not met, Buyer may notify
Xxxxxx of such fact, Buyer will not purchase the Assigned Claims and
will have no payment liability to Xxxxxx hereunder, and Xxxxxx will
refund to Buyer all amounts paid to Xxxxxx hereunder, with Interest.
(c) If neither (a) nor (b), above, is applicable and the
Purchased Assets are purchased by another party for more than
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$35,500,000.00, Buyer will not purchase the Assigned Claims and
will have no payment liability to Xxxxxx hereunder, and Xxxxxx will
refund to Buyer all amounts paid to Xxxxxx hereunder, with Interest.
(d) If none of (a), (b) or (c) above, is applicable, (A) and the
Purchased Assets are purchased by another party for less than
$34,250,000.00, Buyer will not purchase the Assigned Claims and will
have no payment liability to Xxxxxx hereunder and Xxxxxx will refund to
Buyer all amounts paid to Xxxxxx hereunder, with Interest, but shall
retain an amount equal to the difference between the purchase price
paid by such other party and $34,250,000.00, with Interest; or (B) and
the Purchased Assets are purchased by another party for more than
$34,250,000.00 but less than $35,500,000.00, Buyer will not purchase
the Assigned Claims and will have no payment liability to Xxxxxx
hereunder and Xxxxxx will refund to Buyer all amounts paid to Xxxxxx
hereunder, with Interest, but shall retain $500,000.
(e) If none of (a), (b), (c) or (d), above, is applicable and
Buyer does not purchase the Purchased Assets, then as of Termination
Date (or if earlier, if the Buyer does not purchase the Purchased
Assets because of its breach of the Asset Purchase Agreement or any
other condition in Section 8.3 thereof is not satisfied, on the date
the Asset Purchase Agreement is terminated), Buyer will not purchase
the Assigned Claims and will have no payment liability to Xxxxxx
hereunder, and Xxxxxx will refund to Buyer all amounts paid to Xxxxxx
hereunder, with Interest, but shall retain $500,000.
Any refunds due from Xxxxxx under this Section shall be made by wire transfer
of federal funds within two business days after the notice (if under (a) or
(b) above) or the closing of the asset purchase (if under (c) or (d) above)
or the Termination Date (if under (e) above).
9. Waivers. A waiver of any term or condition of this Agreement
shall be valid only if it is in writing and executed by the party so waiving.
The failure of any of the parties in any one or more instances to insist upon
performance of any terms, covenant or conditions of this Agreement shall not be
construed to be a waiver of future performance of any such term, covenant or
condition but the obligation of either party with respect thereto shall continue
in full force and effect.
10. Governing Law. This Agreement and the rights and obligations
of the parties hereunder shall be construed and enforced in accordance with
the laws of the State of New York notwithstanding any reference in such laws to
the laws of another jurisdiction.
11. Notices. All notices, demands or other communications hereunder
shall be in writing and shall be given by (1) deposit in United States mail,
sent by certified or registered mail, postage prepaid, (2) nationally recognized
overnight courier service, service prepaid, which requires written
acknowledgement or receipt, or (3) personal delivery, to the following parties:
If to Buyer: Xxxxxxxx'x International, Inc.
0000 Xxxx 000xx Xx., Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
Fax: (000) 000-0000
Phone: (000) 000-0000
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With a copy to: Xxxxx X. Xxx, Esq.
Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Fax: (000) 000-0000
If to Xxxxxx: Xxxxxx Brothers Holdings, Inc.
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxx
Fax: (000) 000-0000
Phone: (000) 000-0000
With a copy to: Xxxxxxx X. Xxxxxxxx, Esq.
Xxxx & Hessen LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Fax: (000) 000-0000
Phone: (000) 000-0000
or to such other address as Buyer or Xxxxxx shall have last designated in
writing to the other party in a notice meeting the requirements of this Section
9.
12. Entire Agreement; Construction. This Agreement contains the
entire understanding and agreement between the parties with respect to the
subject matter hereof and cannot be amended, modified, or supplemented in any
respect except by a subsequent written agreement executed by the parties hereto.
This Agreement has been negotiated at arm's-length by the parties and their
respective advisors. This Agreement shall not be construed as having been
"drafted" by any one party and shall not be construed against any party as a
drafting party. The interpretation, application, meaning or construction of any
of the terms or provisions of this Agreement shall be construed pursuant to the
terms hereof, without bias in favor of or against any party hereto, and
regardless of the party who drafted or prepared such term or provision.
13. Assignment. Neither this Agreement nor any rights or obligations
of either party hereunder may be assigned to any other person without the prior
written consent of the other party. Notwithstanding the immediately preceding
sentence, Buyer may assign its rights or obligations to a wholly-owned affiliate
without the prior written consent of Xxxxxx (in which event Buyer will not be
relieved of its obligations hereunder). Subject to the foregoing, the provisions
hereof shall inure to the benefit of and be binding upon the successors and
assigns of the parties.
14. Counterparts. This Agreement may be signed in counterparts, each
of which shall constitute an original and which together shall constitute one
and the same Agreement.
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15. Legal Costs. Each party shall bear its own costs and expenses
incurred in negotiating this Agreement and in consummating the transactions
contemplated hereby.
16. Termination. Either party may terminate this Agreement if the
purchase and assignment contemplated hereunder shall not have occurred on or
before the Termination Date; provided that Buyer may not so terminate this
Agreement unless it is also simultaneously terminating the Asset Purchase
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day, month, and year first above written.
BUYER:
XXXXXXXX'X INTERNATIONAL, INC.,
a Delaware corporation
By:
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Name:
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Title:
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XXXXXX:
XXXXXX BROTHERS HOLDINGS, INC.,
D/B/A/ XXXXXX CAPITAL, A
DIVISION OF XXXXXX BROTHERS HOLDINGS, INC.
By:
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Name:
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Title:
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