1
ASSET PURCHASE
DATED AS OF OCTOBER 31, 1996
AMONG
MEMOREX TELEX CORPORATION
TULSA COMPUTER PRODUCTS, INC.,
MEMOREX TELEX SERVICES, INC.,
MEMOREX TELEX PUERTO RICO, INC.,
AND
DECISIONONE CORPORATION
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Exhibits
Exhibit A - Service Business
Schedules
Schedule 1 - July 1996 Statement of Operating Results
Schedule 1.1(a) - Inventory
Schedule 1.1(b) - Fixed Assets
Schedule 3.2(d) - Commitment Letter
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ASSET PURCHASE AGREEMENT
dated as of October 31, 1996,
among DecisionOne Corporation, a
Delaware corporation (the
"Buyer"), TULSA COMPUTER PRODUCTS,
INC., an Oklahoma corporation
("Tulsa"), MEMOREX TELEX SERVICES,
INC., a Delaware corporation ("MT
Services"), MEMOREX TELEX PUERTO
RICO, INC., a Delaware corporation
("MT Puerto Rico"), and MEMOREX
TELEX CORPORATION, a Delaware
corporation ("MTC", and together
with Tulsa, MT Services and MT
Puerto Rico, collectively, the
"Sellers", and each individually,
a "Seller"). The Buyer and the
Sellers are sometimes referred to
collectively as the "Parties" and
individually as a "Party".
The Sellers are engaged in the Service Business in North American
continent (as defined and described in Exhibit A hereto) (the "Service
Business" or the "Business"). The Buyer desires to purchase from the Sellers
substantially all of the assets of the Business and the Sellers desire to sell
such assets to the Buyer upon the terms and subject to the conditions
hereinafter set forth.
Provided that the closing occurs hereunder, certain aspects of the
transactions contemplated hereby are to be effective as of November 1, 1996
(the "Effective Date").
Subject to Bankruptcy Court approval, Buyer has agreed to provide up
to $6,000,000 in post petition financing to Sellers pursuant to an Interim
Order Authorizing Debtors-In-Possession Financing (the "Buyer DIP Financing")
in form and substance reasonably satisfactory to Buyer and Seller.
NOW, THEREFORE, in consideration of the mutual promises herein made,
and in consideration of the representations, warranties, and covenants herein
contained, the Parties agree as follows:
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ARTICLE I
PURCHASE AND SALE OF ASSETS, ASSUMPTION OF LIABILITIES
1.1. ACQUIRED ASSETS.
On and subject to the terms and conditions of this Agreement, at the
Closing (as defined in Section 2.2), the Buyer shall purchase from the Sellers,
and each of the Sellers shall sell, transfer, assign, convey and deliver to the
Buyer, all right, title and interest in and to all of the assets, business,
goodwill and rights of the Business held by such Seller (collectively the
"Acquired Assets"), as the same shall exist immediately prior to the Closing
(the Effective Date as specified in clause (m), (n) and (o) below), free and
clear of all liens, claims and encumbrances, including, without limitation, all
right, xxxxxx and interest of each of the Sellers, if any, in, to and under the
following assets:
(a) all inventories of spare parts, work-in-process, raw
materials, finished products, supplies, shipping containers and other materials
used in the Business, including, without limitation, inventory located at
Sellers' warehouse, field locations, customer sites and consigned to vendors as
well as the items of inventory listed on Schedule 1.1(a) hereto (the
"Inventory");
(b) all machinery, equipment, vehicles, furniture, fixtures,
office equipment, test equipment, tools and other items of tangible personal
property used in the Business, including, without limitation, the items
comprising the $1,937,000 net book value as of July 31, 1996 on the statement
of fixed assets of the Business attached hereto as Schedule 1.1(b) (the "Fixed
Assets");
(c) all written and oral (i) service contracts, maintenance
contracts and other contracts and agreements with customers of the Business,
(ii) purchase orders, sales orders and other orders and commitments issued by
customers of the Business, and (iii) the entire monthly maintenance revenue
stream of the Business (collectively, the "Customer Contracts");
(d) subject to Section 6.9, all land, buildings, improvements and
fixtures located at 0000 Xxxx 00xx Xxxxxx, Xxxxx, Xxxxx Xxxxxx, Oklahoma (the
"Tulsa Facility");
(e) subject to Section 6.10, the November Xxxxxxxx (as herein
defined);
(f) all software, operating systems, dispatch systems and
accounting systems developed or transferable by the Sellers and used in the
Business;
(g) all rights under any liability insurance policies with respect
to claims made against the Buyer with respect to events occurring prior to the
Closing and all rights under any casualty insurance policies with respect to
the Acquired Assets or any assets that, but for a casualty loss, would be
Acquired Assets;
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(h) to the extent transferable, all United States, state and local
governmental licenses, permits, authorizations and approvals relating to the
Business;
(i) all technical information and know-how, plans, designs,
manufacturing processes, operating manuals, technology, computer programs,
source codes, binary files and related assets used in the Business, including,
without limitation, that required to repair and refurbish spare parts used in
the Business.
(j) all customer and supplier lists, records and files, and all
advertising and promotional materials related to the Business;
(k) all documentation, manuals, diagnostics, microcode and other
service support items used by Sellers in the Business;
(l) all other Intellectual Property used in the Business other
than the "Memorex", "Telex" and "Memorex Telex" trademarks and tradenames;
(m) all accounts receivable (other than the Retained Accounts
Receivable (as herein defined), including, subject to Section 6.10, the
November Xxxxxxxx;
(n) all cash received by Sellers or any agent of Sellers after the
Effective Date from customers of the Business for services provided by the
Business other than amounts received on account of the Retained Accounts
Receivable;
(o) all cash received by Sellers or any agent of Sellers after the
Effective Date for the sale or other transfer of any asset that, but for such
sale or transfer, would be an Acquired Asset; and
(p) all warranties, guarantees and letters of credit received from
vendors, suppliers or subcontractors; all records, notes or other documents of
each Seller pertaining in any respect to any and all employees of such Seller
to whom the Buyer makes an offer of employment and who accepts such offer; and
all bills of lading, trust receipts, warehouse receipts and other documents of
title to whatever kind and description of the Business.
1.2. EXCLUDED ASSETS.
Anything contained in Section 1.1 or elsewhere herein to the contrary
notwithstanding, the Acquired Assets shall not include the following assets and
rights of the Sellers (collectively, the "Excluded Assets"):
(a) all rights to receive mail and other communications addressed
to each of the Sellers relating to any of the Excluded Assets or the excluded
Liabilities;
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(b) the corporate charter, qualifications to conduct business as a
foreign corporation, arrangements with registered agents relating to foreign
qualifications, taxpayer and other identification numbers, seals, minute books,
stock transfer books, blank stock certificates and other documents relating to
the organization, maintenance and existence of each of the Sellers as a
corporation and any documents or other material (other than documents and
materials relating to Intellectual Property and products of each of the
Sellers) relating to each of the Sellers which are subject to the
attorney-client privilege; notwithstanding the foregoing, each of the Buyer and
Sellers agree and acknowledge that the transfer of information and/or
documentation from each of the Sellers to the Buyer as required herein is
intended to preserve, and does not waive, any applicable privileges, including,
but not limited to, the attorney-client privilege and the work product
privilege;
(c) any Intellectual Property not identified in Section 1.1 hereof
and any Bankruptcy Recoveries;
(d) any contracts, agreements, leases, or commitments of each of
the Sellers which are not a party of the Customer Contracts;
(e) any net operating loss, or tax attribute or benefit generated
by each of the Sellers for any period prior to the Closing Date; any of the
rights of each of the Sellers under this Agreement;
(f) cash on hand immediately prior to the Effective Date;
(g) accounts receivable as of immediately prior to the Effective
Date (including, without limitation, any intercompany receivables from
affiliates of the Sellers as of immediately prior to the Effective Date) other
than, subject to Section 6.10, the November Xxxxxxxx (the "Retained Accounts
Receivable"); and
(h) all real estate owned or leased by Sellers other than, subject
to Section 6.9, the Tulsa Facility.
1.3. ASSUMED LIABILITIES.
On and subject to the terms and conditions of this Agreement, the
Buyer shall assume and discharge or perform when due the obligations of any of
the Sellers under the Customer Contracts to the extent that such obligations
relate to the period from and after the Closing Date, including all obligations
of any of the Sellers under the Customer Contracts to provide services to
Sellers' customers after the Closing Date for which any Seller has billed such
customers prior to the Closing Date (collectively, the "Assumed Liabilities").
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1.4. EXCLUDED LIABILITIES.
Notwithstanding anything to the contrary contained in this Agreement,
except for the Assumed Liabilities, the Buyer shall not assume or be liable for
any of the Liabilities of the Sellers including, without limitation, trade
payables, obligations or liabilities under real or personal property leases,
any claim or loss relating to injury to persons or property, employees
(including all accrued vacation time and other employee benefits), taxes or
warranty obligations, or any claim or loss relating to or arising out of the
protection of the environment or human health or safety, all of which are
retained by the Sellers (the "Excluded Liabilities). Notwithstanding anything
to the contrary in this Agreement, Buyer acknowledges and agrees that the
Sellers have no obligation to Buyer to pay, satisfy, perform or discharge any
of the Excluded Liabilities.
1.5. EXECUTORY CONTRACTS.
As soon as practicable after the date hereof, the Sellers shall (upon
request by Buyer), pursuant to a motion in form and substance reasonably
acceptable to the Buyer (the "Assumption and Assignment Order"), move to assume
and assign to the Buyer the executory contracts included in the Acquired Assets
and shall provide notice thereof in accordance with all applicable bankruptcy
rules. The Buyer may at any time prior to the entry of the Assumption and
Assignment Order delete therefrom any of the executory contracts included in
the Acquired Assets. If, immediately prior to the entry of the Assumption and
Assignment Order, the Buyer requests that any executory contracts included in
the Acquired Assets not be rejected (any such executory contract being
hereinafter referred to as an "Extended Executory Contract"), then the Sellers
shall not reject such Extended Executory Contract until the earlier of (a) the
date the Buyer notifies the Sellers that they are free to reject such Extended
Executory Contract or (b) the one hundred twenty-first day after the Closing
Date. The Buyer shall reimburse the Sellers for the costs under such Extended
Executory Contract during the period from the Closing Date until the earlier of
(a) the date an order of the Bankruptcy Court is entered rejecting such
Extended Executory Contract after the Buyer notifies the Sellers that they are
free to reject such Extended Executory Contract; provided that the Sellers
shall have filed a motion to reject such Extended Executory Contract within
three (3) business days after receipt from the Buyer of such notification, or
such later date as shall be agreed by the Sellers and the Buyer or (b) the date
such Extended Executory Contract is assumed by the Sellers and assigned to the
Buyer pursuant to the next sentence of this Section 1.5. If the Buyer notifies
the Sellers that they are free to reject such Extended Executory Contract and
the Sellers fail to file a motion to reject such Extended Executory Contract
within three (3) business days of receipt of such notification, or such later
date as shall be agreed by the Sellers and the Buyer, the Buyer shall reimburse
the Sellers for the costs under such Extended Executory Contract during the
period from the Closing Date until the date of receipt by the Sellers of such
notification. If the Buyer requests that any Extended Executory Contract be
assumed and assigned to the Buyer within one hundred twenty days after the
Closing Date, then, as soon as practicable after such request, the Sellers
shall move to assume and assign to the Buyer such executory contract by motion
in form
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and substance reasonably satisfactory to the Buyer. None of the Sellers shall
reject any executory contract included in the Acquired Assets prior to the
entry of the Assumption and Assignment Order without the consent of the Buyer.
In connection with any such assumption and assignment, Buyer shall be
responsible for any cure payments and, to provide adequate assurance of future
performance. Notwithstanding anything in this Agreement to the contrary,
Sellers' compliance or noncompliance with this Section 1.5 shall not give rise
to any right of setoff, deduction or claim for damages by Buyer.
1.6. BUYER DIP FINANCING.
Subject to Bankruptcy Court approval, Buyer will provide the Buyer DIP
Financing in form and substance reasonably satisfactory to Buyer and Sellers.
ARTICLE II
CONSIDERATION; CLOSING
2.1. CONSIDERATION.
(a) CONSIDERATION. Subject to Sections 6.9 and 6.10, the
consideration to be paid by the Buyer at Closing for the Acquired Assets shall
equal (x) $52.5 million ($52,500,000) minus the Estimated Deferred Revenue (as
herein defined) (the "Base Cash Consideration") plus (y) the assumption of the
Assumed Liabilities. The Base Cash Consideration shall be payable as follows:
(i) Ninety percent (90%) of the Base Cash Consideration,
subject to set-off as provided in Section 2.3(b)(iii), in immediately available
funds payable to the Sellers (the "Sellers Cash Consideration"); and
(ii) Ten percent (10%) of the Base Cash Consideration in
immediately available funds payable to an escrow agent mutually acceptable to
the Parties (the "Escrow Agent") pursuant to an escrow agreement (the "Escrow
Agreement") in form and substance mutually acceptable to the Parties (the
"Escrowed Cash Consideration").
(b) ESTIMATED DEFERRED REVENUE. Prior to the Closing, the Parties
shall estimate the amount billed to customers of the Business as of the
Effective Date for services to be rendered after the Effective Date (whether or
not any such amounts have been collected), but excluding amounts billed in
October 1996 or thereafter for services to be rendered on or after November 1,
1996 (the "November Xxxxxxxx") (such amount, less the November Xxxxxxxx, is
hereinafter referred to as the "Deferred Revenue" or, as estimated, the
"Estimated Deferred Revenue") calculated in accordance with past practice,
which, by way of example, would result in Estimated Deferred Revenue as of the
date hereof of approximately $22.5 million ($22,500,000).
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(c) BASE CASH CONSIDERATION ADJUSTMENTS. The Base Cash
Consideration shall be subject to adjustment following the Closing as follows
(as adjusted, the "Final Cash Consideration"):
(i) if the actual Deferred Revenue assumed by the Buyer
from the Sellers as of the Effective Date (the "Actual Deferred Revenue") is
greater than the Estimated Deferred Revenue then the Base Cash Consideration
shall be decreased by the amount by which the Actual Deferred Revenue exceeds
the Estimated Deferred Revenue;
(ii) if the Actual Deferred Revenue is less than the
Estimated Deferred Revenue then the Base Cash Consideration shall be increased
by the amount by which the Estimated Deferred Revenue exceeds the Actual
Deferred Revenue;
(iii) if the revenue (calculated in accordance with past
practice) from Customer Contracts for the period beginning September 1, 1996
and ending October 31, 1996 (the "Two Month Revenue") is less than $24 million
(such difference is hereinafter referred to as the "Shortfall") then the Base
Cash Consideration shall be decreased by an amount equal to the sum of (x) 1.0
times the first $500,000 of the Shortfall plus (y) 2.2 times the amount, if
any, of the Shortfall in excess of $500,000.
(iv) if the Inventory (at the Sellers' standard cost)
(calculated in accordance with past practice) as of the Effective Date (the
"Actual Inventory") is less than $67,000,000 then the Base Cash Consideration
shall be decreased by an amount equal to (x) 0.5 times (y) the amount by which
$67,000,000 exceeds the Actual Inventory; and
(v) if the Buyer has at Seller's request made any
disbursements to or on behalf of the Sellers pursuant to the Buyer DIP
Financing other than Authorized Expenditures (as such term is defined in the
Buyer DIP Financing) (the "Non-Authorized Expenditures") then the Base Cash
Consideration shall be decreased by the dollar amount of such Non-Authorized
Expenditures.
The adjustments provided in (i) through (v) above are cumulative.
(d) CLOSING STATEMENT. As soon as practicable following the
Closing, but in no event later than 45 days thereafter, the Buyer shall prepare
and deliver to the Sellers calculations of (i) the Actual Deferred Revenue,
(ii) the Two Month Revenue, (iii) the Actual Inventory and (iv) the
Non-Authorized Expenditures (collectively, the "Closing Statement") and, based
upon the Closing Statement, a calculation of the Final Cash Consideration. The
Closing Statement and the amount of the Final Cash Consideration as calculated
by the Buyer, when delivered by the Buyer to the Sellers, shall be deemed
conclusive and binding upon the Parties, unless the Sellers notify the Buyer in
writing within 10 days after receipt of the Closing Statement of their
disagreement therewith, which notice shall state with reasonable specificity
the reasons for any disagreement and the amounts in dispute (a "Disagreement
Notice"). If there is a disagreement, and such
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disagreement cannot be resolved by the Buyer and the Sellers within 14 days
following the date of the Disagreement Notice, the items in dispute shall be
submitted immediately to the auditing firm of Coopers & Xxxxxxx LLP (the
"Account Firm"). the Accounting Firm shall be required to render a
determination of the Parties' dispute within 45 days after referral of the
matter to the Accounting Firm, which determination must be in writing and must
set forth, in reasonable detail, the bases therefor. The determination of the
Accounting Firm shall be binding and conclusive upon the Parties. the fees and
disbursements of the Accounting Firm shall be allocated between Buyer and
Sellers so that Sellers' share of such fees and disbursements shall be in the
same proportion that the aggregate amount of such remaining disputed amounts so
submitted by Sellers to the Accounting Firm that is unsuccessfully disputed by
Sellers (as finally determined by the Accounting Firm) bears to the total
amount of such remaining disputed amounts so submitted by Sellers.
(e) FINAL PAYMENT. The Final Cash Consideration shall be deemed
to have been finally determined on the first to occur of (i) the 11th day after
the Buyer's delivery of the Closing Statement and the Buyer's calculation of
the Final Cash Consideration to the Sellers, unless the Sellers shall have,
prior to such date, given a Disagreement Notice, (ii) the date upon which the
Parties agree in writing on the amount of the Final Cash Consideration, or
(iii) the date upon which the Accounting Firm renders its determination in
accordance with Section 2.1(d). Within three (3) business days after such
final determination (the "Final Payment Date"), any difference between the
Final Cash Consideration and the Base Cash Consideration shall be paid by the
Buyer to the Sellers or by the Escrow Agent and/or the Sellers to the Buyer, as
the case may be, together with interest on such amount from the Closing Date
until paid at a rate per annum equal to the prime rate announced from time to
time by The First National Bank of Boston, or any successor thereto, by wire
transfer of immediately available funds to an account designated by the Party
being paid.
(f) TAX ALLOCATION. All amounts, if any, outstanding as of the
Closing Date under the Buyer DIP Financing shall be deemed an increase in the
purchase price of the Acquired Assets for tax purposes.
2.2. THE CLOSING.
Subject to the terms and conditions of this Agreement, the closing of
the transactions contemplated by this Agreement (the "Closing") shall take
place at the offices of X'Xxxxxxxx Graev & Karabell, LLP, 00 Xxxxxxxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, or any such other place as agreed to by the Parties,
on the later to occur of, unless otherwise agreed to by the Parties: (i) the
date on which the conditions to closing set forth in Article V shall have been
satisfied or waived or (ii) the day after the Sale Order has been entered
provided that it has not been stayed (such date being the "Closing Date").
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2.3. DELIVERIES AT THE CLOSING.
(a) At the Closing, the Sellers shall deliver to the Buyer:
(i) the Acquired Assets in accordance with the terms of
Sections 1.1 and 6.6;
(ii) a counterpart to a xxxx of sale and assignment and
assumption agreement (the "Xxxx of Sale"), in form and substance mutually
acceptable to the Parties;
(iii) Intellectual Property transfer documents (the "IP
Assignments"), provided, that the Buyer shall be required to pay any filing
fees in connection with the filing of such IP Assignments to the extent
necessary;
(iv) such other instruments of sale, transfer, conveyance
and assignment as the Buyer reasonably may request to effectuate the transfer
of the Acquired Assets to the Buyer;
(v) a certified copy of the Sale Order and the court
Docket dated as of the Closing Date;
(vi) a counterpart to the Escrow Agreement; and
(vii) except as otherwise provided in Section 6.9, a deed
to the Tulsa Facility.
(b) At the Closing, the Buyer shall deliver to the Sellers:
(i) a counterpart to the Xxxx of Sale;
(ii) a counterpart to the IP Assignment;
(iii) Sellers Cash Consideration less any amounts
previously paid as a deposit by the Buyer on the Acquired Assets pursuant to
the escrow arrangements which have been established by Young, Conaway, Stargatt
and Xxxxxx;
(iv) copies of the consent of the board of directors of
the Buyer authorizing this Agreement and the transactions contemplated thereby;
and
(v) a counterpart to the Escrow Agreement.
(c) At the Closing, the Buyer shall deliver to the Escrow Agent
the Escrowed Cash Consideration.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1. REPRESENTATIONS AND WARRANTIES OF EACH OF THE SELLERS.
Each of the Sellers hereby represents and warrants to the Buyer as
follows:
(a) ORGANIZATION, GOOD STANDING, QUALIFICATION AND POWER. Each of
the Sellers is a corporation duly organized and validly existing under the laws
of its jurisdiction of incorporation and has all requisite corporate power and
authority to own, lease and operate its properties and to carry on its business
as presently conducted. As used in this Agreement, (i) the term "Charter"
means the Certificate of Incorporation, Organization or Association or other
document which governs such entity's internal affairs, in each case as amended,
supplemented, or restated and (ii) the term "Governmental Authority" means any
federal, state, local or foreign government, authority, instrumentality,
department, commission, board, bureau, agency or court.
(b) AUTHORITY, ENFORCEABILITY, ETC. Subject to Bankruptcy Court
approval, each of the Sellers has the full and absolute power to enter into
this Agreement and the documents contemplated hereby, to perform its
obligations under this Agreement and each such document, and to consummate the
transactions contemplated hereby and thereby. The execution, delivery and
performance by each of the Sellers of this Agreement and all documents
contemplated hereby and the consummation of the transactions contemplated
hereby and thereby have been duly and validly authorized by all necessary
action (corporate or otherwise), including shareholder approval, on the part of
each of the Sellers. Each of this Agreement and the documents contemplated
hereby has been, or upon its execution and delivery will be, duly and validly
executed and delivered by each of the Sellers and is, or upon its execution and
delivery will be (assuming approval of this Agreement by the Bankruptcy Court),
a legal, valid and binding obligation of each of the Sellers, enforceable
against such Seller in accordance with its terms.
(c) SCHEDULES. Each Schedule attached hereto is made a part of
this Agreement. Anything contained herein to the contrary notwithstanding, any
information disclosed on any Schedule attached hereto and made a part hereof
with respect to any particular section of this Agreement shall be deemed to be
disclosed on all Schedules with respect to all other sections of this Agreement
to which such information is considered responsive.
(d) AFFILIATES. No affiliate of any Seller (other than a Party
hereto) has any interest in any property used by any Seller in the Business.
(e) TITLE TO ACQUIRED ASSETS. Sellers will convey to Buyer at
Closing indefeasible, good, valid and marketable title to all of the Acquired
Assets free and clear of all liens, claims and encumbrances.
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(f) NO CHANGES. Since October 1, 1996, the Business has been
conducted in the ordinary course except as approved by the Bankruptcy Court,
the Buyer acknowledging that since October 15,1 996, the Sellers have been
debtors operating under Chapter 11 of the Bankruptcy Code.
(g) JULY 1996 STATEMENT OF OPERATING RESULTS. The July 1996
Statement of Operating Results: (i) are in accordance with the books and
records of each Seller in all material respects; and (ii) are true and correct
copies of the interim period statements of operating results which management
of the Business has regularly used to measure the financial performance of the
Business.
3.2. REPRESENTATIONS AND WARRANTIES OF THE BUYER.
The Buyer hereby represents and warrants to each of the Sellers as
follows:
(a) AUTHORITY, ENFORCEABILITY, NO VIOLATION, ETC. The Buyer has
all requisite corporate power and authority to execute and deliver this
Agreement and the documents contemplated hereby to which it is a party, to
perform its obligations under this Agreement and each such document, and to
consummate the transactions contemplated hereby and thereby. The execution,
delivery and performance by the Buyer of each document contemplated hereby, to
which it is a party and the consummation of the transactions contemplated
hereby and thereby have been duly and validly authorized by all necessary
corporate action on the part of the Buyer. This Agreement and each document
contemplated hereby to which the Buyer is a party is, or upon its execution and
delivery will be, a valid and binding obligation of the Buyer, enforceable
against it in accordance with the terms thereof. Neither the execution,
delivery or performance by the Buyer of this Agreement or any document
contemplated hereby to which it is a party, nor the consummation by the Buyer
of the transactions contemplated hereby and thereby nor compliance by the Buyer
with any of the provisions hereof and thereof will (i) conflict with or result
in a breach of any provision of the Buyer's Charter or By-Laws, (ii) conflict
with any material law, statute, rule or regulation or judgment, order, writ,
injunction or decree of any governmental Authority, in each case applicable to
the Buyer or its assets, or (iii) conflict with or result in a default or
breach of any provision of any material contract or agreement to which the
Buyer is a party or by which its assets may be bound. Except for filings under
the HSR Act and filings related to taxes, no material filing with, and no
material permit, authorization, consent or approval of, any Governmental
Authority is necessary for the consummation by the Buyer of the transactions
contemplated by this Agreement and the documents contemplated hereby.
(b) BROKERS AND FINDERS. The Buyer has not employed any broker or
finder in connection with the transactions contemplated by this Agreement.
(c) ABSENCE OF LITIGATION. No claim, action, suit, arbitration,
inquiry, proceeding or investigation by or before any governmental Authority is
pending against
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the Buyer which seeks to delay or prevent the consummation of the transactions
contemplated hereby or which may adversely affect or restrict the Buyer's
ability to consummate the transactions contemplated hereby.
(d) FINANCING. Attached hereto as Schedule 3.2(d) is a copy of
the commitment letter for the bank debt contemplated by the Buyer to finance
the purchase of the Acquired Assets as contemplated hereby.
ARTICLE IV
CONDITIONS OF CLOSING
4.1. CONDITIONS TO OBLIGATIONS OF THE BUYER AND THE SELLERS.
The obligations of the Buyer and each of the Sellers to perform this
Agreement is subject to the satisfactions of the following conditions:
(a) LEGAL ACTION. No temporary restraining order, preliminary
injunction or permanent injunction or other order preventing the consummation
of the transactions contemplated hereby shall have been issued by any court of
law or administrative agency and remain in effect. Each party agrees to use
its reasonable best efforts to have any such injunction lifted.
(b) LEGISLATION. No statute, rule or regulation shall have been
enacted which prohibits, restricts or delays the consummation of the
transactions contemplated hereby or any of the conditions to the consummation
of such transactions.
(c) HSR ACT. Any waiting period (and any extension thereof) under
this HSR Act applicable to the purchase of the Acquired Assets contemplated
hereby shall have expired or shall have been terminated.
(d) SALE ORDER. The Bankruptcy Court shall have issued the Sale
Order, and the Sale Order shall not be stayed.
4.2. CONDITIONS TO OBLIGATION OF THE BUYER.
The obligation of the Buyer to perform this Agreement is subject to
the satisfaction of the following conditions, unless waived by the Buyer:
(a) OFFICER CERTIFICATES. The Buyer shall have received (i) a
certificate, dated as of the Closing Date, signed by the Secretary of each of
the Sellers and certifying as to the Charter, By-laws, incumbency of officers
executing this Agreement and the other documents contemplated hereby to which
each of the Sellers is a party and resolutions of the Board of Directors of the
Sellers authorizing this Agreement and the other documents contemplated hereby
to which each of the Sellers is a party and (ii) a certificate of an
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officer of each of the Sellers certifying as to the fulfillment of the
conditions set forth in this Section 4.2.
(b) PERFORMANCE OF OBLIGATIONS OF THE SELLERS. Prior to or at
Closing, each Seller shall have performed and complied in all material respects
with all agreements and obligations and satisfied all conditions to be
performed, complied with and satisfied by such Seller under this Agreement and
the other documents contemplated hereby prior to or at Closing.
(c) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Sellers set forth herein and in any other document
contemplated hereby shall be correct in all material respects as of the Closing
Date as though made on and as of the Closing Date.
4.3. CONDITIONS TO OBLIGATION OF EACH OF THE SELLERS.
The obligation of each of the Sellers to perform this Agreement is
subject to the satisfaction of the following conditions, unless waived by such
Seller:
(a) AUTHORIZATION. All corporate or other action necessary to
authorize the execution, delivery and performance of this Agreement and the
other documents contemplated hereby by the Buyer and the consummation of the
transactions contemplated hereby and thereby shall have been duly and validly
taken by the Buyer and the Buyer shall have full power and authority to enter
into and consummate the transactions contemplated by this Agreement and the
other documents contemplated hereby.
(b) PERFORMANCE OF OBLIGATIONS OF THE BUYER. The Buyer shall have
performed and complied in all material respects with all agreements and
obligations and satisfied all conditions to be performed, complied with and
satisfied by it under this Agreement and the other documents contemplated
hereby prior to or at the Closing.
(c) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Buyer set forth herein and in any other document contemplated
hereby shall be correct in all material respects as of the Closing Date as
though made on and as of the Closing Date.
(d) OFFICER CERTIFICATES. The Sellers shall have received (i) a
certificate dated as of the Closing Date, signed by the Secretary of the Buyer
and certifying as to the Charter, By-laws, incumbency of officers executing
this Agreement and the other documents contemplated hereby to which the Buyer
is a party and the resolutions of the Board of Directors of the Buyer
authorizing this Agreement and the other documents contemplated hereby to which
the Buyer is a party and (ii) a certificate of an officer of the Buyer
certifying as to the fulfillment of the conditions set forth in this Section
4.3.
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ARTICLE V
TERMINATION
5.1 RIGHT OF TERMINATION.
This Agreement may be terminated at any time prior to the Closing by:
(a) the mutual written consent of the Buyer and each of the
Sellers;
(b) either the Buyer or the Sellers if the Bankruptcy Court shall
have determined not to enter the Sale Order;
(c) either the Buyer or the Sellers in writing, without liability
to the terminating party on account of such termination (except as provided in
Section 5.2) if the Closing shall have not occurred on or before November 30,
1996 unless extended by agreement of the parties; or
(d) the Buyer, without liability to the Sellers on account of such
termination (except as provided in Section 5.2), if at the close of business on
November 1, 1996, neither (i) the Buyer DIP Financing has been approved by the
Bankruptcy Court nor (ii) the Buyer is reasonably satisfied that the Sellers
have obtained an alternate facility for additional debtor-in-possession
financing for at least $6,000,000 to fund the Business during the period
beginning on the Effective Date and ending on either the Closing Date or the
date of the termination of this Agreement and that such financing facility has
been approved by the Bankruptcy Court.
5.2 EFFECT OF TERMINATION.
Termination of this Agreement pursuant to this Article V shall
terminate all obligations of the parties hereunder, except for the obligations
under this Section 5.2 and Article VIII, provided, however, that nothing in
this Section 5.2 shall relieve or limit the liability or obligations hereunder
of any party (the "Defaulting Party") to the other party or parties on account
of a willful and intentional breach of a covenant or agreement contained
herein, or any fraudulent representation or warranty contained herein by the
Defaulting Party. In the case of such a willful and intentional breach or
fraud, in addition to any damages for which the Defaulting Party may be liable,
the Defaulting Party shall reimburse the other party or parties for any
expenses incurred by such party or parties in order to enforce its or their
rights under this Agreement (including reasonable attorney's fees and
expenses).
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ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 SURVIVAL.
The representations and warranties of the Sellers set forth in this
Agreement or in any certificate or other writing delivered in connection with
this Agreement shall terminate at the Closing. The covenants of the Buyer and
the Sellers in this Agreement or in any certificate or other writing delivered
in connection with this Agreement shall survive the Closing and shall be fully
effective and enforceable for the periods therein indicated or, where not
indicated, without limitation as to time.
6.2 TRANSACTION EXPENSES; RISK OF LOSS.
Except as otherwise provided herein, each party hereto shall pay all
of its own expenses incurred in connection with the transactions contemplated
hereby (whether consummated or not). Sellers shall retain the risk of loss
with respect to the Acquired Assets prior to the Closing Date.
6.3 EMPLOYEES.
The Buyer shall be entitled to offer regular or temporary employment
to the employees of each the Sellers actively employed on the Closing Date by
the Sellers in connection with the Business. Each of the Sellers shall do or
cause to be done all such acts and things as may be necessary, proper or
advisable to assist the Buyer in employing any of the Sellers' employees, at
Buyer's expense. The Buyer and the Sellers agree to follow the Standard
Procedure specified in Rev. Proc. 84-77, 1984-2 C.B. 753, whereby, among other
things, each Party will be responsible for the reporting duties with respect to
its own payments of wages and compensation to employees in connection with the
operation of the Business.
6.4 FURTHER ASSURANCES.
After the Closing Date, the Buyer shall provide each of the Sellers
with access (within 5 business days) during normal business hours to any
documents or records reasonably requested by the Sellers which relate to any
claims asserted in the Bankruptcy Case. If the books or records relating to
any claims are moved from a Seller's corporate headquarters, the Buyer shall
provide such Seller with copies of any documents or records reasonably
requested by the Sellers which relate to any claims, within 5 business days of
the written request therefor at Seller's expense. Following the Closing Date,
the Buyer shall provide each of the Sellers with reasonable access to all
former employees of the Sellers necessary for the Sellers to prepare claims
objections and prosecute adversary proceedings in the Bankruptcy Case.
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After the date hereof, the Sellers shall give to the Buyer and to the
Buyer's counsel, accountants, lenders and other representatives (with Sellers'
assistance) full access during normal business hours to all the properties,
books, financial records, tax returns, contracts, commitments, records,
officers, personnel, employees, vendors, customers and accountants of each
Seller and will furnish to Buyer all such documents and copies of documents and
all information with respect to the affairs of each of the Sellers as the Buyer
may reasonably request, including, without limitation, all information
necessary for the Buyer to prepare audited financial statements in accordance
with Buyer's reporting requirements under the Securities Exchange Act of 1934.
After the date hereof, the Sellers will grant access to the properties of each
of the Sellers to the Buyer and its representatives, including the Buyer's
environmental consultants, for the purpose of conducting any environmental
investigation of the properties which may include air, soil and surface and/or
groundwater tests or such other tests as may appear advisable to the Buyer.
After the date hereof, the Sellers agree to facilitate the Buyer's discussions
with Sellers' employees, customers and vendors which discussions are necessary
in order for the Buyer to integrate the Business into the Buyer's business at
and after the Closing. Between the date hereof and the Closing Date, the
Sellers will consult with the Buyer before making any management decisions
which will affect the Business in a material way and will consider (but will
not be bound by) the Buyer's advice.
6.5 EFFORTS TO CONSUMMATE.
Subject to the terms and conditions herein provided, the parties shall
use their reasonable best effort to take or cause to be taken all action and do
or cause to be done all things reasonable necessary, proper or advisable to
consummate and make effective, as soon as reasonably practicable, the
transactions contemplated hereby, including, but not limited to, (i) the
compliance with all requirements under the HSR Act applicable to the
transactions contemplated hereby, including but not limited to a request for
the early termination of the waiting period under the HSR Act, (ii) taking the
measures reasonably necessary to achieve such an early termination and (iii)
the obtaining of all other authorizations, orders and approvals of any third
party, whether private or governmental, required in connection with the
consummation of the transactions contemplated hereby. Sellers and Buyer shall
use reasonable best effort to commence the waiting period under the HSR Act
upon Sellers' selection of Buyer as the most likely purchaser of the assets
Buyer bid on, even if the Sale Order has not yet been entered. Notwithstanding
the foregoing or any other provisions contained in this Agreement to the
contrary, neither the Buyer nor any of its affiliates shall be under any
obligation to (a) sell or otherwise dispose of, or hold separate (through the
establishment of a trust or otherwise) particular assets or categories of
assets or businesses of any of the Sellers, the Buyer or any of the Buyer's
affiliates or (b) take any other action which would have an adverse effect on
the value to the Buyer of the transactions contemplated hereby.
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6.6 BROKER'S FEES.
Each of the Parties shall be responsible for, and shall indemnify and
hold each of the other Parties harmless against, any fees or commissions for
which such Party is liable to any broker, finder or agent with respect to the
transactions contemplated by this Agreement.
6.7 AS IS.
Buyer hereby acknowledges and agrees that except as provided herein or
in certificates delivered or to be delivered at the Closing pursuant hereto,
the Sellers make no representations or warranties, express or implied,
regarding the Acquired Assets, including, without limitation, any
representations or warranties relating to the condition or sufficiency of the
Acquired Assets or concerning the merchantability or fitness for a particular
purpose of the Acquired Assets or any portion thereof; income to be derived
from or expenses to be incurred in connection with the Acquired Assets; the
physical condition of any tangible property comprising any portion of the
Acquired Assets; the value of the Acquired Assets, the accuracy, completeness,
transferability or assignability of any documents or other materials relating
to the Acquired Assets (or any portion thereof), the existence of or rights
with respect to any copyrights, trademarks, tradenames or other Intellectual
Property or intangible property rights relating to or comprising any portion of
the Acquired Assets (or any portion thereof), or the transferability of any
such rights; the transferability of any letter of credit or instrument
comprising a portion of the Acquired Assets; the collectibility or
enforceability of any accounts receivable comprising any portion of the
Acquired Assets. Accordingly, without limiting the foregoing, except as
provided herein or in certificates delivered or to be delivered at the Closing
pursuant hereto, the Buyer accepts the Acquired Assets from the Sellers at the
Closing "As Is," "Where Is" and "With All Faults." The Buyer further
acknowledges and agrees that notwithstanding anything to the contrary in this
Agreement or in any agreement, document or instrument executed pursuant to or
in connection with this Agreement, the Sellers may fully satisfy any obligation
under this Agreement or under any such instrument, document or agreement, to
deliver the Acquired Assets (or any portion thereof) to Buyer by making such
Acquired Assets available to Buyer at their location(s) as of the Closing.
6.8 CONDUCT OF THE BUSINESS PENDING CLOSING.
From and after the date hereof and pending Closing, each Seller
covenants and agrees that (a) the Business shall be conducted only in the
ordinary course and consistent with past practice, including the providing of
all required services to the customers of the Business and the purchase and
repair of spare parts used in the Business, and (b) it shall not sell,
transfer, lease or otherwise dispose of any of the Acquired Assets other than
in the ordinary course of business and consistent with past practice.
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6.9 TULSA FACILITY.
(a) Prior to the Closing, Buyer shall have its environmental
consultants conduct a Phase I environmental assessment with respect to the
Tulsa Facility (the "Tulsa Environmental Assessment").
(b) If the Remediation Cost (as herein defined) is greater than or
equal to $500,000 but less than $3,300,000, then the Base Cash Consideration
will be reduced by the amount by which the Remediation Cost exceeds $500,000.
(c) If the Remediation Cost exceeds $3,300,000, then the Buyer
shall have the option to not purchase the Tulsa Facility. If the Buyer
exercises such option, (i) the Base Cash Consideration will be reduced by
$2,800,000 and (ii) at Closing, in lieu of a deed to the Tulsa Facility, the
Sellers shall deliver to the Buyer an executed lease agreement in form and
substance mutually acceptable to the Parties for the lease by the Buyer of the
Tulsa Facility for a period of six (6) months after the Closing Date at a
monthly rate equal to then fair market value for such six (6) month lease.
(d) For purposes of this Agreement, the "Remediation Cost" shall
be the reasonably expected cost of any environmental remediation needed on the
Tulsa Facility as determined by the Tulsa Environmental Assessment.
(e) Prior to Closing, Seller shall either complete, at its cost,
asbestos remediation at the Tulsa Facility or place $200,000 into an escrow
account with the Escrow Agent pursuant to the Escrow Agreement to be used to
pay for such remediation.
6.10 NOVEMBER XXXXXXXX.
If at Closing, the Sellers have not delivered to the Buyer all
consents necessary to permit assignment of the November Xxxxxxxx from Sellers
to Buyer free and clear of all liens, claims and encumbrances then the Base
Cash Consideration will be reduced by the dollar amount of the November
Xxxxxxxx and the Sellers shall be entitled to retain the collections thereof.
If the Buyer purchases the November Xxxxxxxx at the Closing, (i) the Base Cash
Consideration shall be reduced dollar for dollar for any amounts received on
account of the November Xxxxxxxx by the Sellers or their agents prior to
Closing and (ii) the Sellers and their agents shall immediately turn over to
Buyer any amounts received on account of the November Xxxxxxxx after Closing.
ARTICLE VII
DEFINITIONS
"Affiliate" means, with respect to any Person, any of (a) a director,
executive officer or stockholder of such Person, (b) a spouse, parent, sibling
or descendant of such
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Person (or a spouse, parent, sibling or descendant of any director or executive
officer of such Person) and (c) any other Person that, directly or indirectly
through one or more intermediaries, controls, or is controlled by, or is under
common control with, another Person. The term "control" includes, without
limitation, the possession, directly or indirectly, of the power to direct the
management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
"Bankruptcy Case" means the cases filed under Chapter 11 of the
Bankruptcy Code by the Sellers, currently jointly administered and styled In re
Memorex Telex Corporation, Case Nos. 96-1615 through 96-1618(PJW), currently
pending in the United States Bankruptcy Court for the District of Delaware.
"Bankruptcy Code" means Title 11 of the United States Code, as now in
effect or hereafter amended or modified.
"Bankruptcy Court" means the United States Bankruptcy Court for the
District of Delaware.
"Bankruptcy Recoveries" means property or interests in property
recovered or recoverable by the bankruptcy estates of the Sellers, as the case
may be, pursuant to Bankruptcy Code sections 542, 543, 544, 545, 547, 548, 549,
550, 551 or 553.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time and the regulations promulgated thereunder.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of
1976, as amended, and the rules promulgated thereunder.
"Intellectual Property" means (a) inventions, all improvements thereto
and all patents, patent applications, and patent disclosures, together with all
reissuances, continuations, continuations-in-part, revisions, extensions, and
reexaminations thereof, (b) registered and unregistered trademarks, service
marks, trade dress, logos, trade names, and corporate names, including all
goodwill associated therewith, and applications, registrations, and renewals in
connection therewith, (c) copyrightable works, copyrights and applications,
registrations and renewals in connection therewith, (d) trade secrets,
formulae, customer lists, supplier lists, pricing and cost information,
business and marketing plans and other confidential business information, (e)
computer programs and related software, (f) other proprietary rights and (g)
copies and tangible embodiments thereof.
"Liability" means any liability or obligation, whether known or
unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued,
liquidated or unliquidated, and whether due or to become due, regardless of
when asserted.
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"Person" shall be construed broadly and shall include an individual, a
partnership, a corporation, a limited liability company, an association, a
joint stock company, a trust, a joint venture, an unincorporated organization,
or a governmental entity (or any department, agency, or political subdivision
thereof).
"Purchase Price" has the meaning set forth in Section 2.1 hereof.
"Sale Order" shall mean an order issued by the Bankruptcy Court (i)
approving this Agreement, including the sale of the Acquired Assets free and
clear of liens, claims (including successor liability claims) and encumbrances,
(ii) finding that adequate notice of the Bidding Procedures and the Motion
seeking approval of this Agreement has been given to all parties in interest,
(iii) finding that the Buyer is a good faith purchaser entitled to the
protections of Section 363(m) of the Bankruptcy Code, (iv) authorizing the
Sellers to consummate all of the transactions contemplated hereby, and (v)
otherwise in forma and substance reasonably satisfactory to the Buyer.
ARTICLE VIII
MISCELLANEOUS
8.1 NO THIRD PARTY BENEFICIARIES.
This Agreement shall not confer any rights or remedies upon any Person
other than the Parties and their respective successors and permitted assigns,
personal representatives, heirs or estate, as the case may be.
8.2 ENTIRE AGREEMENT.
This Agreement (including the documents referred to herein)
constitutes the entire agreement between the Parties with respect to the
subject matter hereof and supersedes any prior understandings, agreements or
representations by or between the Parties, written or oral, that may have
related in any way to the subject matter hereof.
8.3 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective successors and permitted assigns, including, but
not limited to, any trustee, receiver or other agent or representative
appointed for any of the Sellers or one or more of their creditors, whether
under Chapter 11 or Chapter 7 of the Bankruptcy Code, applicable state law or
otherwise. Prior to the Closing, no Party may assign either this Agreement or
any of its rights hereunder without the prior written approval of the other
Parties except that the Buyer may assign its rights to acquire any or all of
the Acquired Assets to one or more, direct or indirect, wholly owned
subsidiaries of Buyer. No Party may delegate any of its obligations hereunder
at any time.
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8.4 COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall constitute
one and the same instrument.
8.5 HEADINGS.
The section headings contained in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation
of this Agreement.
8.6 NOTICES.
All notices, requests, demands, claims, and other communications
hereunder shall be in writing. Any notice, request, demand, claim or other
communication hereunder shall be deemed duly given when delivered personally to
the recipient, telecopied to the intended recipient at the telecopy number set
forth therefor below (with hard copy to follow), or sent to the recipient by
reputable express courier service (charges prepaid) and addressed to the
intended recipient as set forth below:
If to the Sellers:
Memorex Telex Corporation
000 X. Xxxx Xxxxxxxxx Xxxxxxx, XX0
Xxxxxx, Xxxxx 00000
Attention: Legal Department
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. X'Xxxxxxxx, Esq. And
Xxxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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If to the Buyer:
DecisionOne Corporation
00 Xxxx Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: General Counsel
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
Dechert Price & Xxxxxx
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Any Party may send any notice, request, demand, claim or other communication
hereunder to the intended recipient at the address set forth above using any
other means, but no such notice, request, demand, claim or other communication
shall be deemed to have been duly given unless and until it actually is
received by the intended recipient. Any Party may change the address to which
notices, requests, demands, claims and other communications hereunder are to be
delivered by giving the other Party notice in the manner herein set forth.
8.7 GOVERNING LAW.
THIS AGREEMENT WILL BE GOVERNED IN ACCORDANCE WITH THE FEDERAL LAW OF
THE UNITED STATES OF AMERICA AND THE DOMESTIC LAWS OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICTING PROVISION OR RULE
(WHETHER OF THE STATE OF NEW YORK, OR ANY OTHER JURISDICTION) THAT WOULD CAUSE
THE LAWS OF ANY JURISDICTION OTHER THAN THE UNITED STATES OF AMERICA AND THE
STATE OF NEW YORK TO BE APPLIED. IN FURTHERANCE OF THE FOREGOING, THE INTERNAL
LAW OF THE STATE OF NEW YORK WILL CONTROL THE INTERPRETATION AND CONSTRUCTION
OF THIS AGREEMENT, EVEN IF UNDER SUCH JURISDICTION'S CHOICE OF LAW OR CONFLICT
OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD
ORDINARILY APPLY.
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8.8 JURISDICTION AND VENUE.
SUBJECT TO THE TERMS OF THIS AGREEMENT, THE SELLERS AND THE BUYER
HEREBY AGREE THAT ALL ACTIONS ARISING UNDER OR IN RESPECT OF THIS AGREEMENT OR
ANY OTHER DOCUMENT EXECUTED CONCURRENTLY HEREWITH INVOLVING THE SELLERS AND THE
BUYER PRIOR TO THE ENTRY OF A FINAL DECREE OF THE BANKRUPTCY COURT CLOSING THE
BANKRUPTCY CASE SHALL BE LITIGATED IN THE UNTIED STATES BANKRUPTCY COURT FOR
THE DISTRICT OF DELAWARE. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH OF
THE SELLERS AND THE BUYER IRREVOCABLY SUBMITS TO THE PERSONAL JURISDICTION OF
SUCH COURTS FOR ITSELF, HIMSELF, OR HERSELF AND IN RESPECT OF ITS, HIS OR HER
PROPERTY WITH RESPECT TO SUCH ACTION. EACH OF THE SELLERS AND THE BUYER AGREES
THAT VENUE WOULD BE PROPER IN ANY OF SUCH COURTS, AND HEREBY WAIVES ANY
OBJECTION THAT ANY SUCH COURT IS AN IMPROPER OR INCONVENIENT FORUM FOR THE
RESOLUTION OF ANY SUCH ACTION. THE PARTIES FURTHER AGREE THAT THE MAILING BY
CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, OF ANY PROCESS REQUIRED
BY ANY SUCH COURT SHALL CONSTITUTE VALID AND LAWFUL SERVICE OF PROCESS AGAINST
THEM, WITHOUT THE NECESSITY FOR SERVICE BY ANY OTHER MEANS PROVIDED BY STATUTE
OR RULE OF COURT. NOTHING CONTAINED HEREIN SHALL APPLY TO ACTIONS ARISING
UNDER OR IN RESPECT OF THIS AGREEMENT INVOLVING OR RELATING TO THE BUYER.
8.9 AMENDMENT AND WAIVERS.
No amendment or waiver of any provision of this Agreement shall be
valid unless the same shall be in writing and signed by all of the Parties. No
waiver by any Party of any default, misrepresentation, or breach of warranty or
covenant hereunder, whether intentional or not, shall be deemed to extend to
any prior or subsequent default, misrepresentation, or breach of warranty or
covenant hereunder or affect in any way any rights arising by virtue of any
prior or subsequent such occurrence.
8.10 INCORPORATION OF EXHIBITS AND SCHEDULES.
The Exhibits and Schedules identified in this Agreement are
incorporated herein by reference and made a part hereof.
8.11 CONSTRUCTION.
Where specific language is used to clarify by example a general
statement contained herein, such specific language shall not be deemed to
modify, limit or restrict in any manner the construction of the general
statement to which it relates. The language used in this Agreement shall be
deemed to be the language chosen by the Parties to
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express their mutual intent, and no rule of strict construction shall be
applied against any Party.
8.12 REMEDIES.
The Parties shall each have and retain all other rights and remedies
existing in their favor at law or equity, including, without limitation, any
actions for specific performance and/or injunctive or other equitable relief
(including, without limitation, the remedy of rescission) to enforce or prevent
any violations of the provisions of this Agreement.
8.13 SEVERABILITY.
It is the desire and intent of the Parties hereto that the provisions
of this Agreement be enforced to the fullest extent permissible under the laws
and public policies applied in each jurisdiction in which enforcement is
sought. Accordingly, if any particular provision of this Agreement shall be
adjudicated by a court of competent jurisdiction to be invalid, prohibited or
unenforceable for any reason, such provision, as to such jurisdiction, shall be
ineffective, without invalidating the remaining provisions of this Agreement or
affecting the validity or enforceability of such provision in any other
jurisdiction. Notwithstanding the foregoing, if such provision could be more
narrowly drawn so as not to be invalid, prohibited or unenforceable in such
jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
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IN WITNESS WHEREOF, the Parties have executed this Asset Purchase
Agreement as of the date first above written.
MEMOREX TELEX CORPORATION
By:__________________________________
Name:
Title:
MEMOREX TELEX SERVICES, INC.
By:__________________________________
Name:
Title:
TULSA COMPUTER PRODUCTS, INC.
By:___________________________________
Name:
Title:
MEMOREX TELEX PUERTO RICO, INC.
By:____________________________________
Name:
Title:
DECISIONONE CORPORATION
By:_____________________________________
Name:
Title:
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EXHIBIT A
SERVICE BUSINESS
The Service Business consists of all of Sellers' computer maintenance
and repair business referred to by Sellers as their "Xxxxxx Operation" other
than the network installation, cabling, network support and network consulting
lines of business, all as shown on Sellers statement of operating results for
the year, quarter and month ended July 31, 1996 attached hereto as Schedule a
(the "July 1996 Statement of Operating Results").
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