Asset Purchase Agreement By and Among The Finish Line Man Alive, Inc. The Finish Line, inc. Man Alive Acquisitions, LLC and The other Entities Listed on Exhibit E June 21, 2009
Exhibit
2.1
By
and Among
The
Finish Line Man Alive, Inc.
The
Finish Line, inc.
Man
Alive Acquisitions, LLC
and
The
other Entities Listed on Exhibit E
June
21, 2009
Table
of Contents
|
Article
1.
|
Definitions
|
1
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||
|
Article
2.
|
Asset
Purchase Transaction; Closing
|
1
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||
|
Section
2.1
|
Assets
to be Sold
|
1
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||
|
Section
2.2
|
Excluded
Assets
|
2
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||
|
Section
2.3
|
Nonassignable
Seller Contracts
|
3
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||
|
Section
2.4
|
Assumed
Liabilities
|
3
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||
|
Section
2.5
|
Excluded
Liabilities
|
3
|
||
|
Section
2.6
|
Ordered
Inventory
|
4
|
||
|
Section
2.7
|
Purchase
Price Rebate
|
4
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||
|
Section
2.8
|
Closing
|
5
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||
|
Section
2.9
|
Allocation
of Purchase Price
|
5
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||
|
Section
2.10
|
Nonassignable
Leases
|
5
|
||
|
Section
2.11
|
Proration
of Leases
|
6
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||
|
Section
2.12
|
Escrow
|
6
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||
|
Section
2.13
|
Deliveries
by Seller
|
6
|
||
|
Section
2.14
|
Three
Month Rent Obligation
|
7
|
||
|
Article
3.
|
Representations
and Warranties of Seller
|
8
|
||
|
Section
3.1
|
Organization
|
8
|
||
|
Section
3.2
|
Authority;
No Conflict; Consents
|
8
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||
|
Section
3.3
|
Financial
Statements
|
9
|
||
|
Section
3.4
|
Title
to Assets
|
9
|
||
|
Section
3.5
|
Condition
and Sufficiency of Assets
|
9
|
||
|
Section
3.6
|
Taxes
|
9
|
||
|
Section
3.7
|
Employee
Benefits
|
10
|
||
|
Section
3.8
|
Compliance
with Legal Requirements; Governmental Authorizations
|
10
|
||
|
Section
3.9
|
Legal
Proceedings
|
11
|
||
|
Section
3.10
|
Seller
Contracts; Assigned Leases; No Defaults
|
11
|
||
|
Section
3.11
|
Environmental
Matters
|
11
|
||
|
Section
3.12
|
Labor
Matters
|
11
|
||
|
Section
3.13
|
Intellectual
Property
|
12
|
||
|
Section
3.14
|
No
Undisclosed Liabilities
|
13
|
||
|
Section
3.15
|
Brokers
|
13
|
||
|
Section
3.16
|
Received
Inventory
|
13
|
||
|
Section
3.17
|
Employees
|
13
|
||
|
Section
3.18
|
Gift
Cards
|
13
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||
|
Section
3.19
|
Full
Disclosure
|
13
|
||
|
Section
3.20
|
Leases
|
13
|
||
|
Section
3.21
|
No
Other Representations or Warranties
|
14
|
||
|
Section
3.22
|
Survival
|
14
|
||
|
Article
4.
|
Representations
and Warranties of Buyer
|
14
|
||
|
Section
4.1
|
Organization
and Good Standing
|
15
|
||
i
|
Section
4.2
|
Authority;
No Conflict; Consents
|
15
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||
|
Section
4.3
|
Certain
Proceedings
|
15
|
||
|
Section
4.4
|
Brokers
|
15
|
||
|
Section
4.5
|
Financial
Statements
|
15
|
||
|
Section
4.6
|
No
Other Representations or Warranties
|
15
|
||
|
Article
5.
|
Pre-Closing
Covenants
|
16
|
||
|
Section
5.1
|
Access
and Investigation
|
16
|
||
|
Section
5.2
|
Operation
of the Business of Seller
|
16
|
||
|
Section
5.3
|
Landlord
Consents
|
16
|
||
|
Section
5.4
|
Access
|
17
|
||
|
Section
5.5
|
Performance
of Obligations
|
17
|
||
|
Section
5.6
|
Satisfaction
of Representation and Conditions
|
17
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||
|
Section
5.7
|
Other
Required Approvals
|
17
|
||
|
Section
5.8
|
Notification
of Breach
|
18
|
||
|
Section
5.9
|
Exclusivity
|
18
|
||
|
Section
5.10
|
Reasonable
Best Efforts
|
18
|
||
|
Section
5.11
|
Press
Releases and Announcements
|
18
|
||
|
Section
5.12
|
Computer
Transition
|
18
|
||
|
Section
5.13
|
Inventory
|
19
|
||
|
Article
6.
|
Additional
Covenants
|
19
|
||
|
Section
6.1
|
Inspection
and Preservation of Records
|
19
|
||
|
Section
6.2
|
Tax
Matters
|
19
|
||
|
Section
6.3
|
Names
Following the Closing
|
19
|
||
|
Section
6.4
|
Employees
|
20
|
||
|
Section
6.5
|
Nonsolicitation
and Nonhire Covenants
|
20
|
||
|
Section
6.6
|
Special
Remedies
|
20
|
||
|
Section
6.7
|
Further
Assurances
|
20
|
||
|
Section
6.8
|
Kick-Out
|
20
|
||
|
Section
6.9
|
Transfer
Taxes
|
21
|
||
|
Article
7.
|
Conditions
Precedent to Buyer’s Obligation to Close
|
21
|
||
|
Section
7.1
|
Accuracy
of Representations
|
21
|
||
|
Section
7.2
|
Seller’s
Performance
|
21
|
||
|
Section
7.3
|
No
Injunction
|
21
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||
|
Section
7.4
|
Rent
Payments
|
21
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||
|
Section
7.5
|
Store
Condition
|
21
|
||
|
Section
7.6
|
Corporate
Approvals
|
21
|
||
|
Section
7.7
|
Documents
|
21
|
||
|
Article
8.
|
Conditions
Precedent to Seller’s Obligation to Close
|
22
|
||
|
Section
8.1
|
Accuracy
of Representations
|
22
|
||
|
Section
8.2
|
Buyer’s
Performance
|
22
|
||
|
Section
8.3
|
No
Injunction
|
22
|
||
|
Section
8.4
|
Documents
|
22
|
||
|
Article
9.
|
Termination
|
22
|
||
|
Section
9.1
|
Termination
Events
|
22
|
||
|
Section
9.2
|
Effect
of Termination
|
22
|
||
|
Article
10.
|
Indemnification;
Remedies
|
23
|
||
ii
|
Section
10.1
|
Survival
|
23
|
||
|
Section
10.2
|
Indemnification
and Payment of Damages by Seller and Finish Line
|
23
|
||
|
Section
10.3
|
Indemnification
and Payment of Damages by Buyer and Buyer Related Parties
|
23
|
||
|
Section
10.4
|
Limitations
on Time and Amount --- Seller and Finish Line
|
23
|
||
|
Section
10.5
|
Procedure
for Indemnification -- Third Party Claims
|
24
|
||
|
Section
10.6
|
Procedure
for Indemnification -- Other Claims
|
25
|
||
|
Section
10.7
|
Effect
of Insurance and Taxes
|
25
|
||
|
Section
10.8
|
Lost
Profits and Special Damages
|
26
|
||
|
Section
10.9
|
Exclusive
Remedy
|
26
|
||
|
Section
10.10
|
No
Right of Setoff
|
26
|
||
|
Article
11.
|
General
Provisions
|
26
|
||
|
Section
11.1
|
Expenses
|
26
|
||
|
Section
11.2
|
Public
Announcements
|
26
|
||
|
Section
11.3
|
Notices
|
26
|
||
|
Section
11.4
|
Jurisdiction;
Service of Process
|
27
|
||
|
Section
11.5
|
Waiver
|
27
|
||
|
Section
11.6
|
Entire
Agreement and Modification
|
27
|
||
|
Section
11.7
|
Disclosure
Letter
|
27
|
||
|
Section
11.8
|
Assignments,
Successors, and No Third-Party Rights
|
28
|
||
|
Section
11.9
|
Severability
|
28
|
||
|
Section
11.10
|
Section
Headings, Construction
|
28
|
||
|
Section
11.11
|
Governing
Law
|
28
|
||
|
Section
11.12
|
Execution
of Agreement
|
28
|
||
|
Section
11.13
|
Specific
Performance
|
28
|
||
|
Section
11.14
|
Finish
Line Liability
|
29
|
||
|
Section
11.15
|
Buyer
Related Parties Liability
|
29
|
||
iii
This Asset Purchase Agreement (this
“Agreement”) is made as
of June 21, 2009 (the “Signing
Date”), by and among Man
Alive Acquisitions, LLC, a Delaware limited liability company (“Buyer”), each of the other
parties listed in Exhibit E (each a
“Buyer Related Party”
and collectively the “Buyer
Related Parties”),
The Finish Line Man Alive, Inc., an Indiana corporation (“Seller”) and The Finish Line,
Inc., an Indiana corporation (“Finish
Line”). Buyer, Buyer Related Parties, Seller and Finish Line
may hereinafter be referred to individually as a “Party” and collectively as the
“Parties.”
Recital
Seller
desires to sell and transfer, and Buyer desires to purchase and acquire,
substantially all the assets owned or held by Seller and used primarily in the
operation of the Business (as defined in Exhibit A other than
those specifically excluded as described in this Agreement).
Agreement
The
Parties, intending to be legally bound, agree as follows:
Article
1. Definitions
For
purposes of this Agreement, capitalized terms used herein but not otherwise
defined herein shall have the meanings specified in Exhibit
A.
Article
2. Asset
Purchase Transaction; Closing
Section
2.1 Assets
to be Sold. Subject
to the terms and conditions of this Agreement, at the Closing, Seller shall
sell, assign, transfer, convey and deliver to Buyer, or cause to be sold,
assigned, transferred, conveyed and delivered to Buyer, and Buyer shall purchase
and acquire from Seller, all the right, title and interest in and to all of the
assets of Seller (the “Purchased Assets”), including,
without limitation, the following (but excluding the Excluded
Assets):
(a) except as
otherwise provided in Section 2.9, the interest of Seller in the real property
leases described on Part 2.1(a) of the Disclosure Letter (the “Assigned Leases”) including
any prepaid rents and security deposits in connection therewith;
(b) the
equipment, furniture, fixtures, cash registers, alarm systems, sensors, cameras,
digital video recording systems, bags, hangers, racks and other personal
property currently in all stores of the Assigned Leases and in Seller’s (or, to
the extent owned by Seller, Finish Line’s) warehouse, including those described
on Part 2.1(b) of the Disclosure Letter (the “Equipment”);
(c) the
merchandise and other inventory consisting of inventory in stores, inventory in
distribution centers and inventory in transit between distribution centers and
stores, as of July 4, 2009, (collectively, the “Received Inventory”) and inventory
under non-cancellable purchase orders and in transit between vendors and
distribution centers utilized by Seller as of July 4, 2009 (the “Ordered Inventory” and collectively
with the
Page
1
Received
Inventory the “Inventory”) described on Part
2.1(c) of the Disclosure Letter, subject to adjustment for actual Inventory as
of the Closing Time;
(d) the
Seller’s interest in the Contracts described on Part 2.1(d) of the Disclosure
Letter (the “Seller
Contracts”);
(e) any and
all rights of Seller, including goodwill, in and to all trade names, trademarks,
service marks, brand names, recipes, packaging designs, packaging files, logo
artwork, copyrights, customer lists, trade secrets, inventions, technology,
nonproprietary information, know-how, licenses and processes and other
intangible assets of every kind and description whatsoever (including
registrations thereof and applications therefor) owned or used in connection
with the Business as more specifically described in Part 2.1(e) of the
Disclosure Letter (the “Intellectual Property
Assets”);
(f) all
books, records and other information relating to the operation of the Business,
including, without limitation, inventory information, Sales information,
employee information, customer and supplier lists and records relating to
customers and suppliers and if applicable, in an electronic form;
(g) except
for the Tax refunds described in Section 2.2(f), any and all rights, claims,
credits, causes of action or rights of set-off against third Persons related to
the Purchased Assets existing as of the Closing Time, including, without
limitation, rights under manufacturers’ and vendors’ warranties, rights under
insurance policies covering the Purchased Assets and rights under
indemnification and contribution agreements;
(h) to the
extent transferable, any and all licenses and permits necessary or required to
operate the Purchased Assets and held by Seller as of the Closing
Time;
(i) all
rights of Seller in and to websites and domain names used or held for use in
connection with the Business, as more specifically described on Part 2.1(i) of
the Disclosure Letter;
(j) any and
all documentation, policies, data, literature, advertising materials and other
books and records or portions thereof that relate to the foregoing assets;
and
(k) all other
assets, properties and rights of Seller related to the Business except for the
Excluded Assets.
Section
2.2 Excluded
Assets. For
the avoidance of doubt, the Purchased Assets shall not include, and Buyer shall
not purchase or acquire from Seller, the following assets, rights and interests
(the “Excluded
Assets”):
(a) all cash
(including all cash in all bank accounts, all cash in stores, deposits in
transit, cash to be received from debit and credit card transactions, and all
xxxxx cash) and cash equivalents (including marketable securities and short term
investments);
(b) all
accounts receivable (the “Seller
Receivables”);
(c) all
prepaid expenses and other prepaid items, other than the prepaid rents and
security deposits in connection with the Assigned Leases;
(d) all
minute books, stock record books, taxpayer and other identification numbers, tax
returns and similar corporate records;
Page
2
(e) all
personnel records and other records that Seller is required by Legal
Requirements to retain in its possession;
(f) all
claims for refund of Taxes and other governmental charges of whatever nature
related to time periods prior to the Closing Time;
(g) any
insurance policies or rights thereunder;
(h) all
rights of Seller under this Agreement or the Ancillary Documents;
(i) assets
which are not used primarily in the operation of the Business;
(j) Seller’s
leasehold interest in its corporate headquarters; and
(k) the
assets set forth on Part 2.2(k) of the Disclosure Letter.
Section
2.3 Nonassignable
Seller Contracts. To
the extent that any Seller Contract is not capable of being assigned,
transferred, subleased or sublicensed without the consent or waiver of the
issuer thereof or the other party thereto or any third party, or if such
assignment, transfer, sublease or sublicense (an “Assignment”) would constitute
a breach thereof or a violation of any Legal Requirement, this Agreement shall
not constitute an Assignment thereof or an attempted Assignment thereof and the
Purchased Assets shall not include such Seller Contract, unless and until such
consent or waiver of such issuer or other party or parties has been duly
obtained or such Assignment has otherwise become lawful. To the
extent that the consents and waivers are not obtained by Seller before the
Closing, then after the Closing and until the impracticalities of Assignment are
resolved, (i) Seller shall use commercially reasonable efforts to provide or
cause to be provided to Buyer the benefits of any such Seller Contract, and (ii)
Buyer shall use commercially reasonable efforts to perform the obligations of
Seller arising under such Seller Contract.
Section
2.4 Assumed
Liabilities. At
the Closing, Buyer shall assume and agree to discharge the following obligations
and Liabilities of Seller (the “Assumed Liabilities”) except
in any such case to the extent that such Liability is caused by a breach of the
representations and warranties of Seller set forth in this Agreement:
(a) all Liabilities and obligations of Seller under the Assigned Leases accruing
after the Closing Time, provided same did not arise from events or circumstances
prior to Closing Time; (b) all Liabilities and obligations of Seller under the
Seller Contracts accruing after the Closing Time, provided same did not arise
from events or circumstances prior to Closing Time; (c) all Liabilities and
obligations of Seller under the Non-Assigned Leases accruing after the Closing
Time, provided same did not arise from events or circumstances prior to Closing
Time; and (d) any Liabilities of Seller or the Business under outstanding gift
cards issued to customers, limited to the dollar amount of credit provided by
Seller to Buyer herein.
Section
2.5 Excluded
Liabilities. Except for the Assumed
Liabilities set forth in Section 2.4, Buyer shall not assume, whether by
assignment, express or implied contract, by operation of law or otherwise, or be
obligated to pay, perform, discharge or guarantee, any Liabilities of Seller or
any Affiliate thereof, including any of their successors and assigns, whether
arising or incurred before, on or after the Closing
Time. Notwithstanding anything contained herein to the contrary
Seller, not Buyer shall be liable for any rent and additional rents due under
the Assigned Leases prior to the Closing Time and shall make payment of same
prior to Closing (the “Excluded
Liabilities”). Seller and Finish Line jointly and severally agree that
they shall be liable for and hold Buyer and Buyer Related Parties harmless from
all Excluded Liabilities and
Page
3
shall
indemnify Buyer or Buyer Related Parties for any Damages arising from the
Excluded Liabilities.
Section
2.6 Ordered
Inventory. Seller
shall pay and be liable for all payments to vendors for Ordered
Inventory. To the extent Seller receives any Ordered Inventory after
Closing, Seller shall, at its own expense, ship any such Ordered Inventory to
Buyer’s distribution center(s) as directed by Buyer. The amounts deducted from
the Purchase Price Rebate for Ordered Inventory under Section 2.7 shall be held
by Seller in escrow and used to pay 40% of the amounts due the vendors of the
Ordered Inventory, when such amounts become due and owing; provided Buyer has
received said Ordered Inventory and has not objected to the same as defective
pursuant to this Section 2.6. If Buyer does not receive Ordered
Inventory, or if the Ordered Inventory is defective, Buyer shall notify Seller
of such facts within seven (7) business days after receipt of the Ordered
Inventory and where practicable, Seller shall withhold payment to the vendors
for such Ordered Inventory until the Parties can resolve the matter. Seller
agrees that it shall not agree to postpone any initial required delivery dates
or to request that any goods be shipped later than in the ordinary course of
business. No later than October 31, 2009, Seller shall provide Buyer
with a reconciliation of Ordered Inventory to actual received Ordered Inventory
(and defective inventory, if any) and the net adjustment, if any, shall be paid
by Seller to Buyer based on a pro-rata allocation of 60% to Seller and 40% to
Buyer (it being the intention that Buyer will, after adjustment, only be
responsible for paying forty percent (40%) of the actual received Ordered
Inventory amount). In the event the Received Inventory is less than
the amount required by Section 3.16 as of the Closing Time, Seller and Finish
Line agree to pay any deficiency to Buyer within twenty (20) days of
Closing. As of the Signing Date, the Parties acknowledge that 40% of
the Ordered Inventory value is no greater than $1,275,000.
Section
2.7 Purchase
Price Rebate. In
consideration of Buyer’s agreement to assume the Assumed Liabilities, Seller
shall (i) transfer and assign to Buyer the Purchased Assets as contemplated by
this Agreement and (ii) pay the sum of Eight Million Two Hundred Fifty Thousand
Dollars ($8,250,000), plus an amount equal to
Seller’s gift card liability as reflected in the Seller’s books and records as
of the Closing Time, minus an amount equal to
forty percent (40%) of the sum of the value of (A) the Received Inventory in
excess of Seven Million Five Hundred Thousand Dollars ($7,500,000) valued at the
Seller’s cost value before markdowns or shrinkage as reflected in Seller’s books
and records as of the Closing Time and consistent with the values reflected in
the Disclosure Letter, plus the (B) the Ordered
Inventory, valued at the Seller’s cost value before markdowns or shrinkage as
reflected in Seller’s books and records as of the Closing Time and consistent
with the values reflected in the Disclosure Letter (collectively, the “Purchase Price
Rebate”). The Purchase Price Rebate shall be payable as
follows: (i) the Purchase Price Rebate less (A) the Escrow Amount (as defined in
Section 2.12) but in no event less than zero dollars ($0), and (B) Two Million
Dollars ($2,000,000) (the “Installment Payment”), shall
be payable to Buyer in cash by wire transfer of same day funds as of July 6,
2009, as directed by Buyer (the “Cash Purchase Price Rebate”),
(ii) the Escrow Amount shall be payable to U.S. Bank National Association to be
held in Escrow subject to Section 2.12 as of July 6, 2009 and (iii) the
Installment Payment shall be payable without setoff for any reason in equal
monthly installments by check or wire transfer to Buyer on the first day of the
first month following the Closing Time and continuing on the first day of the
first month each month thereafter for a total of twelve (12) months (the “Deferred Purchase Price
Rebate”). Finish Line guaranties the full and prompt payment
of the Cash Purchase Price Rebate, the Escrow Amount and the Deferred Purchase
Price Rebate as and when due hereunder.
Page
4
Section
2.8 Closing. The
purchase and sale (the “Closing”) provided for in this
Agreement will take place at the offices of Seller’s counsel at Xxxxxx &
Xxxxxxxxx LLP, 00 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, at 10:00
a.m. (local time) or via correspondence and e-mail communications on July 3,
2009, to be effective and deemed to occur at 11:59 p.m. (local time) on July 4,
2009 (the “Closing
Time”), or at such other time and place as the Parties may
agree. For the avoidance of doubt, it is the intent of the Parties
that all payments to be made as of the Closing Time, will be made as of July 6,
2009. Subject to the provisions of Section 9.1, failure to consummate the
purchase and sale provided for in this Agreement on the date and time and at the
place determined pursuant to this Section 2.8 will not result in the termination
of this Agreement and will not relieve any Party of any obligation under this
Agreement.
Section
2.9 Allocation
of Purchase Price. Buyer
and Seller shall prepare and file their respective Tax Returns, including, but
not limited to, Internal Revenue Service Form 8594, reflecting the Contemplated
Transactions in a manner consistent with the allocation of the Assumed
Liabilities less the Purchase Price Rebate (the “Purchase Price”) provided in
Exhibit C
attached hereto and made a part hereof and reflecting the effective time of the
consummation of the transactions as of the Closing Time, and shall take no
position contrary thereto or inconsistent therewith (including, without
limitation, in any audits or examinations by any Governmental Body or any other
Proceedings) unless required by Legal Requirements. Buyer and Seller
shall make those portions of their returns, or amendments thereof, that relate
to the reporting of the transactions contemplated hereby available for
inspection by the other Party or its Representatives, and such other Party shall
specify, within ten (10) days after its receipt of such return or amendment, in
what respect, if any, such return or amendment would violate the obligations set
forth in the preceding sentence.
Section
2.10 Nonassignable
Leases. To
the extent that any Assigned Leases are not capable of being assigned without
the consent or waiver of any other party thereto or any third party (the “Assignment”) and such party
refuses to provide such consent or waiver, then after the Closing and until the
impracticalities of Assignment are resolved, (i) Buyer shall sublease (the
“Sublease”) such real
property from Seller under the same terms and conditions as those terms and
conditions in the original Lease for the applicable subleased premises
(including any amendments prior to Closing, the “Non-Assigned Lease”) which
Subleases shall also provide that Buyer and Buyer Related Parties shall defend,
indemnify and hold harmless the Seller and Finish Line, from all Liability under
the Non-Assigned Leases related thereto and the amount of any Damages arising
proximately therefrom, (ii) Buyer and Seller shall use commercially reasonable
efforts to provide or cause to be provided to Buyer the benefits of any such
Non-Assigned Lease, (iii) Buyer shall perform the obligations of Seller arising
under such Non-Assigned Lease accruing after the Closing Time, provided same did
not arise from events or circumstances prior to Closing Time, except in any such
case to the extent that such Liability is caused by a breach of the
representations and warranties of Seller set forth in this Agreement and (iv)
Seller shall remain liable and perform the obligations of Seller arising under
such Non-Assigned Lease accruing prior to or arising from events or
circumstances prior to the Closing Time and to the extent that such Liability is
caused by a breach of the representations and warranties of Seller set forth in
this Agreement. With respect to any Non-Assigned Lease, this
Agreement shall not constitute an Assignment thereof or an attempted Assignment
thereof unless and until such consent or waiver of such issuer or other party or
parties has been duly obtained. Continuing promptly following the
Closing Time, Buyer and Buyer Related Parties shall
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continue
to use their reasonable best efforts in attempting to secure the Assignment of
any Non-Assigned Lease until the Assignment is obtained. For the
avoidance of doubt, any Liability arising from the failure of the Parties to
obtain a Landlord’s consent to the Sublease shall be born solely by Buyer and
Buyer Related Parties; provided, however that Seller
and Finish Line will indemnify and reimburse Buyer and Buyer Related Parties
$0.50 per dollar incurred, suffered or spent for such Liabilities, if any, up to
a maximum of $1,500,000. Seller and Finish Line will pay any amount
due under this Section 2.10 within ten (10) days after Buyer provides Seller
with reasonable documentation of such Liabilities. The Parties
acknowledge that as of the Signing Date the only two Non-Assigned Leases are the
Leases with Aranov and X’Xxxxx as the landlords.
Section
2.11 Proration
of Leases. For
purposes of this Agreement the parties agree that all amounts accruing under the
Assigned Leases and Non-Assigned Leases, including without limitation rent,
additional rent, insurance, utilities, taxes, costs, credits and other
Liabilities or payables, will be prorated as of the Closing Time, based on the
periods for which such amounts are actually allocated or
accrued. Items for which it is indeterminate which period they relate
to, will be considered accrued based on the date the Landlord’s billing
statement for such items is received. For the avoidance of doubt,
property tax refunds for periods prior to the Closing Time shall remain the
property of Seller.
Section
2.12 Escrow. Effective
as of the Closing Time, the Parties shall set up an escrow with U.S. Bank
National Association pursuant to the terms of an escrow agreement in
substantially the form attached as Exhibit F (the “Escrow
Agreement”). As of or prior to the Closing Time, the Seller
shall deposit an amount equal to $2,250,000 (the “Three Month Rent Amount
Estimate”), plus $2,263,142.87 representing the aggregate estimated
amount of rent and additional rent payable for the period from the November 1,
2009 through the Kick Out Time for (i) the Non-Assigned Leases, (ii) any
Assigned Leases with respect to which the Landlord Consent does not contain an
unconditional release of Seller and Finish Line for Liabilities accruing after
the Closing Time and (iii) any Assigned Leases which Finish Line has guaranteed
and which guarantee has not been released, (the “Lease Escrow” and collectively
with the Three Month Rent Amount Estimate, the “Escrow Amount”) which shall be
held and distributed in accordance with the terms of the Escrow
Agreement. The amount of the Lease Escrow shall be adjusted to the
extent that between the Signing Date and the Closing Date (i) the Non-Assigned
Leases become Assigned Leases, (ii) the Landlord Consents are revised to contain
an unconditional release of Seller and Finish Line for Liabilities accruing
after the Closing Time or (iii) Finish Line is released from its
guaranties.
Section
2.13 Deliveries
by Seller. At
the Closing, Seller shall deliver or cause to be delivered to Buyer the
following items:
(a) a duly
executed Xxxx of Sale;
(b) a
certificate of a duly authorized officer of Seller, dated effective as of the
Closing Time, certifying that the resolutions attached thereto are true, correct
and complete copies of the resolutions of Seller authorizing, adopting and
approving the Transaction Documents and the transactions contemplated hereby and
thereby, and that the bylaws attached thereto are true, correct and complete
copies thereof as in effect as of the Closing Time;
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(c) a
certified copy of the articles of incorporation of Seller as in effect as of the
Closing Time, certified by the Secretary of State of the State of Indiana and
dated within ten (10) Business Days prior to the Closing Time;
(d) a
certificate of existence of Seller issued by the Secretary of State of the State
of Indiana and dated within ten (10) Business Days prior to the Closing
Time;
(e) an
incumbency certificate of Seller, dated effective as of the Closing Time, in
form and substance reasonably satisfactory to Buyer;
(f) a
certificate of the Treasurer of Seller, dated effective as of the Closing Time,
certifying as to the payment in full of any and all Taxes;
(g) a list of
the current Received Inventory certified by Seller as true and correct as of the
business day prior to Closing;
(h) a list of
the Ordered Inventory certified by Seller as true and correct as of the business
day prior to Closing;
(i) all sales
figures between date of this Agreement and the business day prior to Closing,
and for the last twelve months prior to the business day prior to Closing
certified by Seller as true and correct;
(j) a
certificate executed by an officer of Seller certifying that the conditions set
forth in Article 7 have been satisfied as of the Closing and that the respective
representations and warranties are true and correct as of the respective dates
set forth herein; and
(k) such
other instrument or instruments of transfer in such form as shall reasonably
necessary or appropriate to vest in Buyer all of Seller’s right, title and
interest to the Purchased Assets an in form and substance reasonably
satisfactory to Buyer (all such instruments and agreements, collectively, the
“Transfer
Documents”).
Section
2.14 Three
Month Rent Obligation. The
Escrow Agreement will provide that the Three Month Rent Amount Estimate will be
held by the Escrow Agent without offset or setoff by Seller and distributed to
Buyer on January 4, 2010. In the event the Three Month Rent Amount
Estimate is less than the actual rents and additional rents accruing for the
period of August 1, 2009 through October 31, 2009, for the Assigned Leases and
the Non-Assigned Leases (a “Rent Deficiency”), Seller and
Finish Line, jointly and severally agree to reimburse Buyer for such amounts on
January 4, 2010. If Buyer desires to seek any such reimbursement,
Buyer agrees to provide Seller a statement from Buyer that a Rent Deficiency for
such period exists together with such reasonable documentation verifying the
existence of a Rent Deficiency. Payment by Seller of the Rent
Deficiency amount shall be the later of 30 days after receipt of the request
from Buyer or January 4, 2010. For the avoidance of doubt, it is the
intention of the Parties that Buyer and Buyer Related Parties agree to pay, when
due, after applicable notice and grace periods and subject to Buyer’s right to
dispute any claim by landlord all rent or additional rent for the accruing for
the period of August 1, 2009 through October 31, 2009 and that Seller and Finish
Line will be responsible to reimburse Seller on January 4, 2010 for all rent and
additional rent under the Leases paid by Buyer or Buyer Related Parties for the
periods prior to October 31, 2009 (less the Three Month Rent Amount Estimate
being released from escrow), but will not be responsible for any other
Liabilities under the Leases accruing after the Closing Time.
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Article
3. Representations
and Warranties of Seller
Seller
and Finish Line, jointly and severally represent and warrant to Buyer, as of the
date hereof, as follows:
Section
3.1 Organization. Seller
is a corporation duly organized and validly existing under the laws of the State
of Indiana, with the corporate power and authority to conduct its business as it
is now being conducted, to own or use the properties and assets that it owns or
uses and to perform all its obligations under the Seller Contracts to which it
is a party. Seller is qualified to do business and is in good
standing in each jurisdiction in which the conduct of its business requires it
to be so qualified, except where the failure to be so qualified or in good
standing would not result in a Material Adverse Change. Finish Line
is a public company traded on NASDAQ under the symbol FINL.
Section
3.2 Authority;
No Conflict; Consents.
(a) Each of
this Agreement and the Ancillary Documents to which the applicable Seller is a
party is a legal, valid, and binding obligation of Seller, enforceable against
Seller in accordance with its respective terms, except that such enforcement may
be subject to or limited by (i) bankruptcy, insolvency or other similar laws,
now or hereafter in effect, affecting creditors’ rights generally, and (ii) the
effect of general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity). Seller has all
right, power and authority to execute and deliver this Agreement and the
Ancillary Documents to which it is a party and to perform its obligations under
this Agreement and the Ancillary Documents to which it is a party. No
further action on the part of Seller is necessary to authorize the execution,
delivery and performance by Seller of the forgoing agreements and consummation
by it of the transactions contemplated hereby and thereby.
(b) The
execution and delivery of this Agreement and the Ancillary Documents by Seller
does not, and the consummation or performance by Seller of any of the
Contemplated Transactions will not, (i) conflict with or result in a violation
of any provision of the articles of incorporation or by laws of Seller, (ii)
conflict with or result in a violation of any Order to which Seller or any of
the Purchased Assets may be subject, (iii) conflict with or result in a
violation of any of the terms or requirements of any Seller Approval, (iv)
conflict with, result in a violation or breach of, constitute a default under,
result in the acceleration of, create in any party the right to terminate,
modify or cancel any provision of any Seller Contract or Leases, or (v) assuming
the Landlord Consents (as hereafter defined) are obtained, conflict with, result
in a violation or breach of, constitute a default under, result in the
acceleration of, create in any party the right to terminate, modify or cancel
any provision of any Assigned Leases, (vi) result in the imposition or creation
of any Encumbrance upon or with respect to any of the Purchased Assets, or (vii)
require any filing with, permit or consents of any Governmental Authority or
other Persons, other than those which have been obtain or will be obtained at
Closing.
(c) Except as
set forth on the Part 3.2(c) of the Disclosure Letter, and except for the
Landlord Consents (as hereafter defined), Seller is not required to obtain any
Consent from, or provide any notice to, any Person in connection with the
execution and delivery of this Agreement or the Ancillary Documents or the
consummation or performance of
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any of
the Contemplated Transactions, except for such failures to obtain Consents or to
provide notices which, individually or in the aggregate, will result in a
Material Adverse Change.
(d) Seller
has the requisite power and authority to execute and deliver this Agreement and
each other Transaction Document to which it is a party and to consummate the
transactions contemplated hereby and thereby.
Section
3.3 Financial
Statements. Seller
has delivered to Buyer: (a) an unaudited balance sheet of Seller as of February
28, 2009 (the “Balance
Sheet”), and the related statements of income and cash flow for the
fiscal year then ended (“Annual
Income Statement” and collectively, with the Balance Sheet, the “Annual Financial Statements”),
and (b) an internally prepared balance sheet of Seller as of May 2, 2009 (the
“Interim Balance
Sheet”), and the related internally prepared statements of income as of
May 2, 2009 (the “Interim
Income Statement” and, collectively with the Interim Balance Sheet, the
“Interim Financial
Statements”). The Annual Financial Statements fairly present
in all material respects the financial condition and the results of operations
of Seller as of the respective dates and for the respective periods referred to
in such Annual Financial Statements, all in accordance with GAAP, consistently
applied.
Section
3.4 Title
to Assets. All
of the Purchased Assets are owned by Seller free and clear of all Encumbrances
and at the Closing, the Xxxx of Sale, to be executed and delivered by Seller to
Buyer, will effectively vest in Buyer good, valid and marketable title to all of
the Assets free and clear of all Liens. At Closing, Seller will have
delivered or caused to be delivered to Buyer all of the properties, assets and
rights of Seller used in or necessary to operate the Purchased Assets in the
Ordinary Course of Business as of the Closing Time, except for the Excluded
Assets. At Closing, the Purchased Assets will be in such condition
and repair as is necessary to operate the Purchased Assets in the Ordinary
Course of Business. To Seller’s Knowledge, there are no defects in
the Purchased Assets or other conditions relating thereto which, in the
aggregate, would have an adverse effect on Buyer’s ability to operate the
Purchased Assets in the Ordinary Course of Business.
Section
3.5 Condition
and Sufficiency of Assets. To
Seller’s Knowledge, (a) the Equipment is in good operating condition and repair,
is free from material defects and is adequate for the uses to which the
Equipment is being put, ordinary wear and tear excepted, and (b) none of the
Equipment is in need of maintenance or repairs except for ordinary, routine
maintenance and repairs that would not result in a Material Adverse
Change.
Section
3.6 Taxes.
(a) Seller
has filed or caused to be filed all Tax Returns that are or were required to be
filed by them pursuant to applicable Legal Requirements. To Seller’s
Knowledge, all Tax Returns filed by Seller are true, correct, and
complete. Seller has paid, or made provision for the payment of, all
Taxes that have become due pursuant to the Tax Returns or otherwise, or pursuant
to any assessment received by Seller, except such Taxes, if any, as are being
contested in good faith. Except as set forth on Part 3.6(a) of the
Disclosure Letter, to Seller’s Knowledge (i) Seller has not received any written
claim by any taxing authority in any jurisdiction where Seller does not file Tax
Returns that Seller is or may be subject to Taxes assessed by such jurisdiction
(ii) there has been no issue raised or adjustment proposed (and none is pending)
by any Tax authority with respect to Taxes,
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(iii)
there are no Liens for Taxes upon any of the Purchased Assets, and (iv) there is
no pending Tax audit or examination, nor any action, suit, investigation, claim
or deficiency asserted against Seller.
(b) To
Seller’s Knowledge, Seller has timely paid (or will timely pay prior to the
Closing Time) and/or accrued all sales Taxes required to be paid by them or
collected from customers in connection with the sale of goods or performance of
services for customers which are owing for the periods prior to the Closing
Time. Seller has paid (or will timely pay prior to the Closing Time)
and/or accrued all payrolls, employment, withholding and other Taxes required in
connection with their employees which are owing for the periods prior to the
Closing Time.
Section
3.7 Employee
Benefits. All
pension, retirement, supplemental retirement, stock option, stock purchase,
stock ownership, savings, stock appreciation right, profit sharing, deferred
compensation, consulting, bonus, medical, disability, workers’ compensation,
vacation, group insurance, severance, employee welfare benefit plans (as defined
in ERISA), employee pension benefit plans (as defined in ERISA) and other
material employee benefit, incentive and welfare policies, contracts, plans and
arrangements, and all trust agreements related thereto, maintained by or
contributed to by Seller or which Seller has any Liability or potential
Liability in respect of any of the present or former directors, officers, other
employees and/or consultants of Seller, or in which any of such directors,
officers, employees or consultants participates (each an “Employee Plan”) have been
maintained and operated substantially in accordance with both their terms and
with the requirements of all applicable Legal Requirements, including, without
limitation, ERISA, the Code and COBRA. All contributions required to
be made to Employee Plans have been or will be made.
Section
3.8 Compliance
with Legal Requirements; Governmental Authorizations.
(a) To
Seller’s Knowledge, except as set forth in the Part 3.8(a) of the Disclosure
Letter, (i) Seller is in compliance with each Legal Requirement that is
applicable to it or the ownership or use of the Purchased Assets which it owns
or uses; and (ii) Seller has not received, at any time since May 1, 2007, any
written notice from any Governmental Body or any other Person regarding any
violation of, or failure to comply with, any Legal Requirement.
(b) Except as
provided in Part 3.8(a) of the Disclosure Letter, since May 1, 2007, no notice,
charge, claim, action or assertion has been received by Seller (with respect to
the Purchased Assets) or, to Seller’s Knowledge, has been filed, commenced or
threatened against Seller alleging any violation of any of the
foregoing. The conduct of the Business has not violated, and as
presently conducted does not violate any Applicable Laws, Orders or any industry
standards which would have a material adverse effect on the
Business. No investigations by any Governmental Authority asserting
or alleging any violation of, or noncompliance with, any such Applicable Laws or
Orders are pending or, to Seller’s Knowledge, threatened against
Seller.
(c) Part
3.8(c) of the Disclosure Letter identifies each Governmental Authorization which
(i) is required for and material to the conduct of the Business by Seller, or
(ii) is held by Seller. To Seller’s Knowledge, Seller is not in
violation of any such Governmental Authorization held by it.
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Section
3.9 Legal
Proceedings. Except
as set forth in Part 3.9 of the Disclosure Letter, there is no Proceeding
pending or, to Seller’s Knowledge, threatened against Seller and affecting the
Purchased Assets nor any Order to which Seller or the Purchased Assets is
subject.
Section
3.10 Seller
Contracts; Assigned Leases; No Defaults.
(a) Except as
set forth in the Part 3.10 of the Disclosure Letter, each Seller Contract and
Lease (i) to Seller’s Knowledge is legal, valid, binding, in full force and
effect and valid and enforceable against Seller and the other parties thereto,
in accordance with its terms, and (ii) assuming the Landlord Consents (as
defined hereafter) are obtained, the consummation of the Contemplated
Transactions will not cause the failure of such Seller Contract or Lease to be
legal, valid, binding, in full force and effect and enforceable on identical
terms following the consummation of the Contemplated Transactions.
(b) Except as
set forth in Part 3.10 of the Disclosure Letter (i) Seller is in compliance in
all material respects with each Seller Contract and Assigned Lease under which
Seller has or had any obligation or Liability or by which Seller or any of the
Purchased Assets owned by it is bound and (ii) to Seller’s Knowledge, each other
Person that has any obligation or Liability under any Seller Contract or
Assigned Lease under which Seller has any rights is in compliance in all
material respects with such Seller Contract or Assigned Lease as the case may
be.
(c) Except as
set forth in Part 3.10 of the Disclosure Letter, Part 2.1(d) of the Disclosure
Letter contains an accurate and complete list of all contracts, agreements,
licenses and instruments (including without limitation a summary of any oral
contracts or agreements) to which Seller is a party or is bound and that are
material to the Purchased Assets (other than the Assigned
Leases). True, complete and correct copies of all Seller Contracts
and Assigned Leases have been provided or made available to the
Buyer.
Section
3.11 Environmental
Matters. To
Seller’s Knowledge: (a) the operations of Seller complies with all Environmental
Laws; (b) Seller is not subject to any outstanding Order respecting (i)
Environmental Laws, (ii) Remedial Action, or (iii) any Release or threatened
Release of a Hazardous Material; (c) there has been no Release by Seller of any
Hazardous Materials; (d) there are no pending or, threatened Proceedings, of any
nature, resulting from any Environmental Law, with respect to or affecting the
Seller; and (e) Seller has obtained and complied with, and is in compliance with
in all material respects, all Governmental Authorizations that are required
pursuant to Environmental Laws for the occupation of its facilities and the
operation of the Business. Notwithstanding the generality of any
other representation or warranty in this Agreement, the representations and
warranties contained in Section 3.11 shall be deemed to contain the only
representations and warranties in this Agreement with respect to Environmental
Laws and Hazardous Materials.
Section
3.12 Labor
Matters.
(a) Seller is
not a party to any collective bargaining Contract. Except as set
forth in Part 3.12 of the Disclosure Letter, there is not presently pending or
existing, and, to Seller’s Knowledge, there is not threatened, (i) any strike,
slowdown, picketing, or work stoppage, (ii) any Proceeding against or affecting
Seller relating to the alleged violation of any Legal Requirement pertaining to
labor relations or employment matters, including
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any
charge or complaint filed by an employee or union with the National Labor
Relations Board, the Equal Employment Opportunity Commission, or any comparable
Governmental Body, organizational activity, or other labor or employment dispute
against or affecting Seller or its respective premises, or (iii) any application
for certification of a collective bargaining agent. Except as set
forth in Part 3.12 of the Disclosure Letter, Seller is in material compliance
with all Legal Requirements relating to employment, equal employment
opportunity, nondiscrimination, immigration, wages, hours, benefits, collective
bargaining, the payment of social security and similar taxes, occupational
safety and health, plant closing and mass layoff of employees.
(b) Seller
has paid or will pay and perform all obligations with respect to its employees,
independent sales representatives, consultants, agents, officers and directors,
including, without limitation, all wages, salaries, commissions, bonuses,
severance pay, vacation pay, benefits and other direct compensation for all
services performed by such Persons to the date hereof and all amounts required
to be reimbursed to such Persons. Seller is in compliance in all
material respects with all federal, state, local and foreign laws and
regulations respecting employment and employment practices, terms and conditions
of employment and wages and hours. No employees of Seller are covered
by any collective bargaining agreements and, to Seller’s Knowledge, no effort is
being made by any union to organize any of Seller’s employees. There
is no xxxxxxx compensation claim pending against Seller that is not adequately
provided for by insurance. Except as provided in Part 3.9 of the
Disclosure Letter, there is no charge, complaint or suit pending or, to Seller’s
Knowledge, threatened against Seller respecting employment, hiring for
employment, terminating from employment, employment practices, employment
discrimination, terms and conditions of employment, safety, wrongful
termination, or wages and hours.
Section
3.13 Intellectual
Property.
(a) Part
3.13(a) of the Disclosure Letter contains a true, correct and complete list of
all Intellectual Property, including without limitation all Patents, registered
Marks and Copyrights that are owned or used (pursuant to license agreements or
otherwise) by Seller and the jurisdiction, if any, in which it is registered or
application therefore has been made.
(b) Except as
set forth in Part 3.13(b) of the Disclosure Letter, Seller (i) owns and
possesses all right, title and interest, free and clear of all Encumbrances, the
Patents, registered Marks and Copyrights owned by it and set forth in Part
3.13(a) of the Disclosure Letter, or (ii) has a valid and enforceable license to
use all Patents, registered Marks and Copyrights licensed by it and set forth
the Disclosure Letter (the “Company Intellectual
Property”). No current or former employee and no other Person
owns or has any proprietary, financial or other interest, direct or indirect, in
whole or in part, and including any right to royalties or other compensation, in
any of the Intellectual Property, or in any application therefor.
(c) To
Seller’s Knowledge, the operation of the Business as currently conducted does
not infringe, misappropriate or otherwise conflict with any Intellectual
Property Assets of any third party. To Seller’s Knowledge, no third
party has infringed, misappropriated, or otherwise conflicted with any of the
Company Intellectual Property.
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Notwithstanding
the generality of any other representations or warranty in this Agreement, the
representations and warranties contained in Section 3.13 shall be deemed to
contain the only representations and warranties in this Agreement with respect
to Intellectual Property Assets or Company Intellectual Property.
Section
3.14 No
Undisclosed Liabilities. To
Seller’s Knowledge, Seller has no Liabilities or obligations of any nature that
are required to be reflected on a balance sheet in accordance with GAAP except
for (a) Liabilities or obligations reflected or reserved against on the Interim
Balance Sheet, (b) current Liabilities incurred in the Ordinary Course of
Business, (c) Liabilities set forth in Part 3.14 of the Disclosure Letter, (d)
Liabilities under the Seller Contracts or Assigned Leases, (e) Liabilities or
obligations which would not reasonably be expected to result in a Material
Adverse Change, or (f) Excluded Liabilities. This Section 3.14 shall
not apply to any Liability or obligation which is of a type covered by another
representation or warranty in this Agreement.
Section
3.15 Brokers. Seller
has not incurred or will incur any obligation for any finder’s or broker’s fee
or commission in connection with the Contemplated Transactions.
Section
3.16 Received
Inventory. Received
Inventories are valued at the lower of cost or market using a weighted-average
cost method, which approximates the first-in, first-out method. Received
Inventories are recorded net of markdowns and shrinkage. Part 2.1(c) contains a
true and complete listing of Received Inventory and Ordered Inventory as of the
date hereof. Seller shall not place any further orders for Inventory
after the date hereof. The Received Inventory as of the Closing Time
will have a value of at least Six Million Seven Hundred Thousand Dollars
($6,700,000).
Section
3.17 Employees. Part
3.17 of the Disclosure Letter contains to Seller’s Knowledge a true, complete
and accurate list of each employee of Seller, along with the current salaries
for each employee, except for the President of Seller (the “Seller
Employees”). Seller agrees not to increase in any manner the
number of Seller’s Employees after the date hereof.
Section
3.18 Gift
Cards. All
gift cards issued by Seller were issued in the Ordinary Course of Business to
third party retail customers and Part 3.18 of the Disclosure Letter contains the
aggregate amount of gift card liabilities as of the business day prior to the
date hereof.
Section
3.19 Full
Disclosure. No
representation or warranty by Seller contained in this Agreement and no
statement contained in any document (including, without limitation, the
disclosure schedules), certificate, or other writing furnished or to be
furnished by Seller to Buyer or any of its representatives pursuant to the
provisions hereof or in connection with the transactions contemplated hereby,
contains or will contain any untrue statement of material fact or omits or will
omit to state any material fact necessary, in light of the circumstances under
which it was made, in order to make the statements herein or therein not
misleading.
Section
3.20 Leases. Seller
has provided to Purchaser true, correct and complete copies of all of the
Assigned Leases (including any leases which may become Non-Assigned Leases, the
“Leases”), including any
and all amendments or agreements affecting the rights of landlord or tenant
thereto. The Leases are valid, legally binding and enforceable
against the Seller and, to the best of Seller’s Knowledge, the other parties
thereto, subject to laws of general application in effect affecting creditors’
rights and subject to the exercise of judicial discretion in accordance with
general equitable principles. Except those breaches which would not
reasonably likely to
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result in
a Material Adverse Change, Seller is not in breach of, or in default under, any
of the Leases; and to Seller’s Knowledge, no event has occurred which, with the
giving of notice or lapse of time, or both, would constitute a default by
Seller. Subject to the execution and delivery of the Landlord
Consents, the assignment of the Leases to Purchaser in accordance with this
Agreement will not constitute a breach or violation of any of the
Leases. Seller represents, warrants and covenants that the Leases
delivered to Buyer are true and correct and represent the entire agreement
between the parties with respect to the leasing and occupancy of the Premises,
and there are no other agreements or representations of any kind between Seller
and any other party with respect thereto. Part 3.20 of the Disclosure
Letter sets forth the following information with respect to each Lease, which
is, to Seller’s Knowledge after due investigation, true and correct in all
material respects as of the date of this Agreement:
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(i)
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the
commencement and expiration date of the
Lease;
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(ii)
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any
remaining options under the Lease;
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(iii)
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the
current monthly base rent and all additional rents currently payable under
the Lease;
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|
(iv)
|
any
security deposits paid under the Lease;
and
|
|
|
(v)
|
the
dates the Kick Out Clauses may be exercised and the period and date on
which the Lease may be terminated, as well as the sales threshold required
to exercise said Kick Out provision and the pay out amount required to
exercise said Kick Out.
|
Section
3.21 No
Other Representations or Warranties. EXCEPT
AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SELLER DOES NOT MAKE AND HAVE NOT MADE
ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER, WRITTEN OR ORAL, EXPRESS OR
IMPLIED, AT LAW OR IN EQUITY, AS TO ANY FACT OR MATTER WITH RESPECT TO OR
OTHERWISE RELATING TO SELLER, THE BUSINESS OR THE TRANSACTIONS CONTEMPLATED
HEREBY. THE PARTIES ACKNOWLEDGE AND AGREE THAT EXCEPT AS EXPRESSLY OTHERWISE
STATED HEREIN ALL WARRANTIES (WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED) IN
REGARD TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONDITION OR DESIGN
OR ARISING BY STATUTE OR OTHERWISE IN LAW, FROM A COURSE OF DEALING OR USAGE OF
TRADE OR OTHERWISE ARE EXPRESSLY EXCLUDED. ALL REPRESENTATIONS AND WARRANTIES OF
THE SELLER, OTHER THAN THOSE OF THE SELLER EXPRESSLY SET FORTH IN THIS AGREEMENT
ARE HEREBY EXPRESSLY DISCLAIMED. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT,
THE BUYER IS ACCEPTING THE ASSETS ON AN “AS IS WHERE IS, WITH ALL FAULTS”
BASIS.
Section
3.22 Survival. All
representations and warranties set forth herein shall survive the Closing,
subject to the limitations set forth in Article 10.
Article
4. Representations
and Warranties of Buyer
Buyer and
Buyer Related Parties, jointly and severally represent and warrant to Seller as
follows:
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14
Section
4.1 Organization
and Good Standing. Buyer
is a limited liability company duly organized, in good standing and validly
existing under the laws of the State of Delaware. Each of the Buyer
Related Parties is a corporation or limited liability company duly organized, in
good standing and
validly existing under the laws of its state of incorporation or
organization.
Section
4.2 Authority;
No Conflict; Consents. Each of
this Agreement and the Ancillary Documents is a legal, valid, and binding
obligation of each of Buyer and Buyer Related Parties enforceable against Buyer
and Buyer Related Parties, respectively in accordance with its terms, except
that such enforcement may be subject to or limited by (i) bankruptcy, insolvency
or other similar laws, now or hereafter in effect, affecting creditors’ rights
generally, and (ii) the effect of general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in
equity). Each of Buyer and Buyer Related Parties has all right,
power, and authority to execute and deliver this Agreement and to perform its
obligations under this Agreement and the Ancillary Documents. The
execution and delivery of this Agreement and the Ancillary Documents by Buyer
and Buyer Related Parties does not, and the consummation or performance by Buyer
and Buyer Related Parties of any of the Contemplated Transactions will not: (i)
conflict with or result in a violation of any provision of the articles of
incorporation or bylaws of Buyer or Buyer Related Parties; (ii) conflict with or
result in a violation of Order to which Buyer or Buyer Related Parties may be
subject; or (iii) conflict with, result in a violation or breach of, constitute
a default under, result in the acceleration of, create in any party the right to
terminate, modify or cancel any provision of any Contract to which Buyer or
Buyer Related Parties is a party or by which Buyer or Buyer Related Parties may
be bound. Neither Buyer nor Buyer Related Parties is required to
obtain any Consent from, or provide any notice to, any Person in connection with
the execution and delivery of this Agreement or the Ancillary Documents or the
consummation or performance of any of the Contemplated
Transactions.
Section
4.3 Certain
Proceedings. There
is no pending Proceeding against Buyer or Buyer Related Parties that challenges,
or may have the effect of preventing, delaying, making illegal, or otherwise
interfering with, any of the Contemplated Transactions. To Buyer’s
Knowledge and Buyer Related Parties’ Knowledge, no such Proceeding has been
threatened.
Section
4.4 Brokers. Neither
Buyer nor Buyer Related Parties has incurred and will not incur any obligation
for any finder’s or broker’s fee or commission in connection with the
Contemplated Transactions except as previously disclosed in writing to
Seller.
Section
4.5 Financial
Statements. The
Buyer Related Parties have delivered to Seller: audited financial statements of
Buyer as of December 31, 2008 (the “Buyer Financial
Statements”). The Buyer Financial Statements fairly presents
in all material respects the financial condition and the results of operations
of the Buyer Related Parties as of the respective dates and for the respective
periods referred to in such Buyer Financial Statements, all in accordance with
GAAP, consistently applied. No Material Adverse Change in the
financial condition of Buyer, material change in capital structure or material
repayment of shareholder loans has occurred since the date of the Buyer
Financial Statements.
Section
4.6 No
Other Representations or Warranties. Except
for the representations and warranties contained in this Article 4, Buyer and
Buyer Related Parties make no other representation or warranty with respect to
Buyer and Buyer Related Parties, this Agreement, the Ancillary Documents or the
Contemplated Transactions.
Page
15
Article
5. Pre-Closing
Covenants
Section
5.1 Access
and Investigation. Between
the date of this Agreement and the Closing Time, Seller will afford Buyer and
its Representatives access to the Purchased Assets during Seller’s normal
business hours and at Seller’s locations, and in a manner so as not to interfere
with Seller’s normal business operations. Buyer may communicate with
or be permitted to have access to any employees, customers, suppliers, dealers,
or other third parties having a business relationship with Seller, but only
after this Agreement has been publicly announced in accordance with Section
5.11, which shall be no later than four (4) business days from the date
hereof.
Section
5.2 Operation
of the Business of Seller. Between
the date of this Agreement and the Closing Time, Seller:
(a) shall
except as otherwise provided in Section 6.4, use its reasonable best efforts to
maintain its relations and good will with suppliers, customers, landlords,
creditors, employees, agents and others having business relationships with
it;
(b) shall
make no material changes in employees (subject to the ability of Seller to
terminate employees in the Ordinary Course of Business and to employees
terminating their employment voluntarily) without prior consultation with
Buyer;
(c) shall
maintain the Purchased Assets in a state of repair and condition that complies
with Legal Requirements and is consistent with the requirements and normal
conduct of Seller’s Business;
(d) shall
keep in full force and effect, without material amendment, the Seller Contracts
and Assigned Leases;
(e) shall
comply with all Legal Requirements applicable to the operations of Seller’s
Business;
(f) shall not
pledge any of the Assets or subject any of the Assets to any Lien;
(g) shall not
alter any employment practices or policies;
(h) shall not
conduct any “going out of business” or “liquidation” sales;
(i) shall not
enter into any material contracts except in the Ordinary Course of
Business;
(j) shall not
sell, license, transfer, assign or dispose of any of the Assets other than
inventory in the ordinary course of business;
(k) shall not
agree in writing or otherwise to take any of the actions described in
subsections (f) through (k) hereof.
Notwithstanding
the foregoing, Seller shall be permitted to take such actions incidental and
related to the closing of the Jamestown Mall and Central Mall (Lawton, Oklahoma)
stores, including without limitation selling the Assets related
thereto.
Section
5.3 Landlord
Consents. Buyer
and Buyer Related Parties shall use their reasonable best efforts to obtain the
consent of each landlord or other necessary party other than Seller
(collectively, the “Landlord
Consents”) for each of the Leases prior to June 21, 2009 in
Page
16
the form
as the attached Exhibit D, with such
modifications as Seller and Buyer may consent to in their reasonable
discretion. Reasonable best efforts may include providing a guaranty
from one or more of the Buyer Related Parties, but shall in no event require
Buyer to agree to an amendment of the Assigned Lease that eliminates an early
termination option on the part of the tenant, if any, or in any manner that
materially increases its obligations or decreases its rights under the Leases,
or Seller or Finish Line to provide a guaranty or agreement to remain
responsible under the Leases for Liabilities accruing after the Closing
Time. Reasonable best efforts shall include an obligation on the part
of Seller and Finish Line to pay landlords (or otherwise make arrangements to
discharge) any amounts actually owing to such landlord’s prior to the Closing
Time, as may be requested by landlord’s as a condition to providing the Landlord
Consents. Seller and Finish Line agree to pay any such amounts as
required by the terms of any Landlord Consents in a timely manner so as not to
cause a default under the Landlord Consents or the Leases. Any out of
pocket costs payable to Landlord in connection with the Landlord Consents shall
be payable by Seller and Finish Line. Seller and Finish Line shall
cooperate and assist Buyer and Buyer Related Parties in obtaining the Landlord
Consents. Buyer and Buyer Related Parties shall provide Seller and
Finish Line with a list of any landlords as of June 26, 2009 that have not
provided a Landlord Consent. Thereafter, Buyer, Buyer Related Parties
and Seller shall continue to use their reasonable best efforts to obtain the
Landlord Consent and failing that shall use their reasonable best efforts to
obtain the consent of each landlord to the Sublease as contemplated by Section
2.3. The Parties acknowledge that they have received executed
Landlord Consents satisfactory to all Parties for all landlords except Aranov
and X’Xxxxx and, to the extent Buyer, Seller, Buyer Related Parties or Finish
Line have not executed these Landlord Consents they will do so as soon as
practicable but in any event prior to Closing.
Section
5.4 Access. During
the period from the date of this Agreement to the Closing, upon reasonable
advance notice, Seller shall (i) afford to Buyer and its representatives, during
business hours, access to Seller’s officers, legal counsel, properties and books
and records to undertake customary legal, financial and commercial due
diligence; and (ii) permit Buyer to make such inspections and to make copies of
such books and records at Buyer’s own expense as it may reasonably require,
provided such efforts shall not interfere with Seller’s conduct of its operation
in the Ordinary Course of Business.
Section
5.5 Performance
of Obligations. During
the period from the date of this Agreement until Closing Time, Seller shall
fulfill its contractual obligations with respect to the Contracts and the
Assumed Liabilities in all material respects.
Section
5.6 Satisfaction
of Representation and Conditions. Seller
shall use its commercially reasonable efforts to take all actions necessary to
render all representations and warranties made by it herein accurate on and as
of the Closing Time in all material respects and to satisfy each covenant or
condition to be performed or satisfied by it on or before the Closing
Time.
Section
5.7 Other
Required Approvals. Between
the date of this Agreement and the Closing Time, each Party will cooperate with
the other Parties with respect to all filings that the other Party elects to
make or is required by Legal Requirements to make in connection with the
Contemplated Transactions, and obtaining any Consent for the Assignment of any
Seller Contract or any necessary Government
Authorizations. Notwithstanding the foregoing, these provisions shall
not apply to the Landlord Consents subject to Section 5.3.
Page
17
Section
5.8 Notification
of Breach. Between
the date of this Agreement and the Closing Time, Seller shall notify Buyer in
writing if Seller becomes aware of a breach of any of Seller’s representations
and warranties contained in Article 3 of this Agreement. After
receipt of any such notice, unless the Buyer notifies Seller that it considers
the breach reasonably likely to result in a Material Adverse Change and it is
exercising its rights under this Agreement to terminate this Agreement within
ten (10) business days thereafter, the written notice pursuant to this Section
5.8 will be deemed to have amended the Disclosure Letter, to have qualified the
representations and warranties contained in Article 3 above, and to have cured
any misrepresentation or breach of warranty that otherwise might have existed
hereunder by reason of the development.
Section
5.9 Exclusivity. Until
the earlier of the Closing or the date that this Agreement is terminated, Seller
will not solicit, initiate, or encourage any inquiries or proposals from,
discuss or negotiate with, provide any information to, or consider the merits of
any unsolicited inquiries or proposals from or enter into any agreement with,
any Person (other than Buyer or Buyer Related Parties) relating to any
transaction involving the sale of the Business or all or substantially all of
the assets used primarily in the Business (other than sales of Inventory in the
Ordinary Course of Business) of Seller, or any of the equity of Seller, or any
merger, consolidation, liquidation, dissolution, recapitalization, business
combination, or similar transaction involving Seller.
Section
5.10 Reasonable
Best Efforts. Between
the date of this Agreement and the Closing Time, the Parties will use their
reasonable best efforts to consummate the Contemplated
Transactions.
Section
5.11 Press
Releases and Announcements. The
Seller shall be the first party to issue a public announcement or press release
after consultation with Buyer, which announcement shall be no later than four
(4) business days after the Signing Date. Thereafter, the Parties
shall consult with each other before issuing any other press releases or
otherwise making any public announcements regarding this Agreement or the
transactions contemplated by this Agreement; provided, that each Party may make
such announcements that it in good faith believes, based on advice of counsel,
is necessary in connection with any requirement of Law or regulation, it being
understood and agreed that each Party shall provide the other Parties with
copies of any such announcement reasonably in advance of such
issuance.
Section
5.12 Computer
Transition. Both
before, and if necessary, following Closing, Seller and Finish Line agree to
cooperate and assist Buyer as reasonably required to transition and coordinate
the transfer of the information in Seller’s or Finish Line’s computer system and
software to Buyer’s current computer system and software (the “Computer
Transition”). The parties understand and acknowledge however
that Buyer will not be able to run on Seller’s network after closing and that
Seller will not be responsible for Buyer’s connectivity after
Closing. If, in spite of Buyer’s best efforts, no other viable
alternatives exist for Buyer (i) Seller agrees to continue to store inventory
and point of sale data and to provide said data to Buyer for a period of up to
thirty (30) days from Closing and (ii) Seller agrees to maintain in its name and
at Buyer’s cost and expense any DSL or similar connections in the stores until
Buyer has replaced the same but in any event for no longer than thirty (30) days
after Closing. Buyer and Buyer Related Parties agree to reimburse
Seller for such amounts with ten (10) days after receipt of a reasonably
detailed invoice for such services.
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18
Section
5.13 Inventory. Prior
to Closing, Seller shall take reasonable efforts to cancel all outstanding
purchase orders for Inventory; provided that Seller shall
not be required to cancel purchase orders which are by their terms
non-cancellable. Seller may sell its Inventory in the Ordinary Course
of Business prior to Closing. Received Inventory as of the Closing
Time shall be delivered by Seller at Closing Time on an AS IS WHERE IS
basis. Part 2.1(c) of the Disclosure Letter shall be revised by the
Seller as of three business days prior to the Closing Time with the Ordered
Inventory estimated as of the Closing Time.
Article
6. Additional
Covenants
Section
6.1 Inspection
and Preservation of Records. Seller,
Finish Line, Buyer and Buyer Related Parties shall cooperate with each other
fully with respect to actions required to be undertaken with respect to Tax
audits, administrative actions or proceedings, litigation, employee records and
any other like matters relating to Seller, Buyer, the Business, the Purchased
Assets or the Assumed Liabilities that may occur after the Closing.
Section
6.2 Tax
Matters. Seller
shall prepare or cause to be prepared and filed all Tax Returns with respect to
the Purchased Assets and shall be liable for and shall pay all Taxes shown as
due on such Tax Returns, in each case attributable to periods (or portions
thereof) ending prior to the Closing Time, based on an interim closing of the
books for any period not ending as of the Closing Time. Buyer shall
prepare or cause to be prepared and filed all Tax Returns with respect to the
Purchased Assets and shall be liable for and shall pay all Taxes shown as due on
such Tax Returns, in each case attributable to periods (or portions thereof)
beginning on or after the Closing Time. Buyer and Seller shall
cooperate fully, as and to the extent reasonably requested by any Party, in
connection with the preparation and filing of Tax Returns pursuant to this
Section 6.2 and any audit, litigation or other Proceeding with respect to Taxes.
Such cooperation shall include the retention and (upon any other Party’s
request) the provision of records and information which are reasonably relevant
to any such audit, litigation or other Proceeding and making employees available
on a mutually convenient basis to provide additional information and explanation
of any material provided hereunder. Buyer and Seller agree, upon request, to use
their reasonable efforts to obtain any certificate or other document from any
Governmental Body as may be necessary to mitigate, reduce or eliminate any Tax
that could be imposed (including, but not limited to, with respect to the
Contemplated Transactions). All transfer, documentary, sales, use,
stamp, registration and other such Taxes incurred in connection with the sale of
the Purchased Assets pursuant to this Agreement shall be paid by Seller when
due, and Seller will, at its own expense, file all necessary Tax Returns and
other documentation with respect to all such transfer, documentary, sales, use,
stamp, registration, and other Taxes and, if required by Legal Requirements,
Buyer will, and will cause its Affiliates to, join in the execution of any such
Tax Returns and other documentation.
Section
6.3 Names
Following the Closing. Within
ten (10) days following the Closing, Seller shall file amendments to Seller’s
articles of incorporation with the Secretary of State of the State of Indiana
changing its corporate name or assumed business name to a name that does not
include “Man Alive” or “Decibel”. Seller further agrees that,
following the Closing, Seller will not adopt any name which includes “Man Alive”
or “Decibel” and relinquishes any and all rights to the use of said names or any
names included in the Intellectual Property.
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19
Section
6.4 Employees. As
of the Closing Time, Seller agrees to terminate all of its
employees. Buyer covenants to hire all of Seller’s in-field employees
(including without limitation district managers) and shall use its reasonable
best efforts to interview all of Seller’s other employees. Within
five (5) business days following the Closing Time, Buyer shall notify Seller of
any people who were employees of Seller immediately prior to the Closing Time
that Buyer did not hire within such period.
Section
6.5 Nonsolicitation
and Nonhire Covenants. Neither
Seller nor Finish Line shall, without the Buyer’s written consent, solicit for
employment (except in the form of a public, general advertisement) or an
independent contract with, or hire any current employee of the Seller or
employee of the Seller as of immediately prior to the Closing Time for one (1)
year following the Closing Time unless such person is not employed by Buyer
within ten days after the Closing Time. The foregoing provision shall
not apply to any employees or officers of Seller that are also currently
employed by Finish Line or its Affiliates.
Section
6.6 Special
Remedies. The
Parties recognize that serious injury could result to Buyer and its business if
Seller or Finish Line breaches its obligations under Section
6.5. Therefore, Buyer will be entitled to a restraining order,
injunction or other equitable relief if Seller or Finish Line breaches its
obligations under this Agreement, in addition to any other remedies and damages
that would be available at law or equity.
Section
6.7 Further
Assurances. Each
of the Parties shall execute and deliver, or cause to be executed and delivered,
such further instruments of conveyance and transfer or other documentation as
the other Party may reasonably request to effect, consummate, confirm or
evidence the transfer to Buyer of the Purchased Assets and the assumption by
Buyer of the Assumed Liabilities and to otherwise give effect to the other
transactions, covenants and agreements contemplated hereby, at the expense of
the requesting Party. Promptly after receipt of written notice of the
threat, assertion or the commencement of any Action with respect to any matter
in respect which another Party may be liable, the recipient shall forward the
notice to such Party or Parties. Seller and Finish Line will, upon
request from Buyer, provide sales information with respect to each Lease to the
extent necessary to enable Buyer to exercise any early termination options under
such Leases or dispute any claims. Each Party agrees to provide to
the other Parties drafts and where applicable executed copies of all Landlord
Consents (which without limitation shall include consents to assignment,
estoppel certificates and consents to Subleases whether on the form of Landlord
Consent agreed to by the Parties or on in an alternative form) prior to the
Closing Time and, if applicable after the Closing, promptly after receipt by
such Party.
Section
6.8 Kick-Out. Buyer
and Buyer Related Parties jointly and severally agree to pay to the Escrow
Agent, as of the Kick Out Time (as defined hereafter), an amount equal to the
estimated rent liability for the term from the Kick Out Time through the
expiration of a lease (based on the then current base rent and additional rent)
for each Non-Assigned Lease and each Lease under which Finish Line has provided
a guaranty for the period after Closing and which guaranty has not been
released, with respect to which (i) Buyer does not exercise its early
termination option within the time frame permitted under the terms of such Lease
(the “Kick Out Time”) or
(ii) which Seller and the Finish Line has not been unconditionally released from
liability to the Landlord. The Kick Out Time will be determined as of
the latest date the Leases can be terminated (for the earliest kickout period,
if applicable), without respect to the store’s actual sales, it being the
intention of the Parties that the Kick Out Time will be deemed to have
Page
20
occurred
even if (as a result of actual stores sales being greater than any kick out
thresholds or otherwise) the Buyer is not permitted to terminate under the terms
of the Lease. Seller and Finish Line agree to direct the Escrow Agent
to release any amounts under this Section 6.8 with respect to which Seller and
Finish Line are released from any guaranty and continuing Liability by the
landlord as of the date of said release.
Section
6.9 Transfer
Taxes. Seller
shall pay all transfer taxes or sales taxes owing in connection with this
Agreement or the transfer of the Assets hereunder.
Article
7. Conditions
Precedent to Buyer’s Obligation to Close
Buyer’s
obligation to purchase the Purchased Assets and to assume the Assumed
Liabilities and to take the other actions required to be taken by Buyer at the
Closing is subject to the satisfaction, at or prior to the Closing, of each of
the following conditions (any of which may be waived by Buyer, in whole or in
part):
Section
7.1 Accuracy
of Representations. Except
those inaccuracies which would not be reasonably likely to result in a Material
Adverse Change, Seller’s representations and warranties in Article 3 of this
Agreement must be accurate as of the Signing Date except for representations and
warranties made as of a specified date, which shall be measured only as of such
specified date and except for the representations and warranties, Section 3.1,
Section 3.2, Section 3.4, Section 3.6, Section 3.9, Section 3.10, Section 3.12,
Section 3.14, Section 3.15, and Section 3.17, which must be accurate as of the
Closing Time.
Section
7.2 Seller’s
Performance. The
covenants and obligations that Seller is required to perform or to comply with
pursuant to this Agreement at or prior to the Closing must have been duly
performed and complied with in all material respects and Seller shall have
delivered each of the documents required to be delivered by Seller pursuant to
this Article 7 and all the Purchased Assets as required herein.
Section
7.3 No
Injunction. There
must not be in effect any Legal Requirement or any injunction or other Order
that prohibits the sale of the Purchased Assets by Seller to Buyer.
Section
7.4 Rent
Payments. Seller
shall have paid, or shall credit Purchaser at Closing as an additional
adjustment to the Purchase Price Rebate, all amounts of rent and additional
rents due and owing from Seller under the Leases covering any period through
July 31, 2009.
Section
7.5 Store
Condition. Seller
shall deliver possession of each Store free of any Encumbrances or subtenancies
or any other occupants and violations which would materially interfere with the
conduct of the business and in substantially the same condition as the stores
are operated in the Ordinary Course of Business.
Section
7.6 Corporate
Approvals. Seller
shall have obtained the necessary approvals for the consummation of the
transactions contemplated by this Agreement, including but not limited to any
governmental agency consents or approvals, if any, and resolutions evidencing
the same shall have been delivered to Buyer.
Section
7.7 Documents. The
Seller shall have delivered executed versions (where applicable) of each of the
documents set forth in Section 2.13.
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21
Article
8. Conditions
Precedent to Seller’s Obligation to Close
Seller’s
obligation to sell the Purchased Assets and to take the other actions required
to be taken by Seller at the Closing is subject to the satisfaction, at or prior
to the Closing, of each of the following conditions (any of which may be waived
by Seller, in whole or in part):
Section
8.1 Accuracy
of Representations. Buyer’s
representations and warranties in Section 3.1 of this Agreement must be accurate
as of the Closing Time (except for representations and warranties made as of a
specified date, which shall be measured only as of such specified date), except
those inaccuracies which would not be reasonably likely to result in a material
adverse change.
Section
8.2 Buyer’s
Performance. The
covenants and obligations that Buyer is required to perform or to comply with
pursuant to this Agreement at or prior to the Closing must have been performed
and complied with in all material respects and Buyer shall have delivered each
of the documents required to be delivered by Buyer pursuant to this Article
8.
Section
8.3 No
Injunction. There
must not be in effect any Legal Requirement or any injunction or other Order
that prohibits the sale of the Purchased Assets by Seller to Buyer.
Section
8.4 Documents. Each
of the following documents must have been delivered to Seller:
(a) a
certificate executed by an officer of Buyer certifying (i) the matters set forth
in Section 8.1 and Section 8.2, (ii) the Articles of Incorporation and By-laws
of Buyer, (iii) the resolutions of the Board approving the Contemplated
Transactions;
(b) the Xxxx
of Sale executed by Buyer;
(c) the
Landlord Consents; and
(d) the
Subleases, if any.
Article
9. Termination
Section
9.1 Termination
Events. This
Agreement may, by written notice given prior to or at the Closing, be
terminated: (a) (i) by Buyer if any of the conditions in Article 7 have not been
satisfied as of July 2, 2009 or if satisfaction of
such a condition is or becomes impossible (other than through the failure of
Buyer or Buyer Related Parties to comply with its obligations under this
Agreement) and Buyer has not waived such condition on or before the Closing
Time; or (ii) by Seller if any of the conditions in Article 8 have not been
satisfied as of July 2, 2009 or if satisfaction of such a condition is or
becomes impossible (other than through the failure of Seller to comply with its
obligations under this Agreement) and Seller has not waived such condition on or
before the Closing Time; (b) by Buyer if (i) Seller has within the previous ten
(10) business days given Buyer any notice pursuant to Section 5.8 above and (ii)
the breach that is the subject of the notice has resulted in a Material Adverse
Change; and (c) by mutual written consent of the Parties.
Section
9.2 Effect
of Termination. If
this Agreement is terminated pursuant to Section 9.1, all further obligations of
the Parties under this Agreement will terminate, except that the obligations in,
Section 11.1, Section 11.2 and Section 11.3 will
survive. Notwithstanding the
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22
foregoing,
if this Agreement is terminated by a Party under Section 9.1(a), the terminating
Party’s right to pursue all legal remedies for any breach of any covenant or
agreement in this Agreement prior to such termination in any manner that shall
have proximately contributed to the occurrence of the failure of the Closing to
occur shall survive termination unimpaired, including but not limited to the
right for action for specific performance.
Article
10. Indemnification;
Remedies
Section
10.1 Survival. All
representations, warranties, covenants, and obligations in this Agreement, the
Disclosure Letter, the amendments to the Disclosure Letter, and any other
certificate or document delivered pursuant to this Agreement will survive the
Closing as set forth in Section 10.4.
Section
10.2 Indemnification
and Payment of Damages by Seller and Finish Line. Subject
to the limitations set forth in this Article 10, if the Closing occurs then
after the Closing Time, Seller and Finish Line will, jointly and severally
indemnify and hold harmless Buyer, Buyer Related Parties and their respective
Related Persons (the “Buyer
Indemnified Persons”) for, and will pay to the Buyer Indemnified Persons
the amount of, any Damages arising, proximately from: (a) any breach of any
representation or warranty made by Seller in this Agreement after giving effect
to the Disclosure Letter and amendments to the Disclosure Letter; (b) any breach
by Seller of any covenant or obligation of Seller in this Agreement, or (c) any
Excluded Liabilities or (d) any Liabilities of the Business accruing prior the
Closing Time including without limitation Liabilities for rent or other
obligations under the Leases accruing under the Leases for any period prior to
the Closing Time, (e) any Liabilities of Seller accruing under the Non-Assigned
Leases for any period prior to the Closing Time or (f) Liabilities of Seller
under the Escrow Agreement, if any.
Section
10.3 Indemnification
and Payment of Damages by Buyer and Buyer Related Parties. Subject
to the limitations set forth in this Article 10, if the Closing occurs then
after the Closing, Buyer and Buyer Related Parties, jointly and severally, will
indemnify and hold harmless Seller, Finish Line and their respective Related
Persons (the “Seller
Indemnified Persons”), and will pay to the Seller Indemnified Persons the
amount of any Damages arising proximately from: (a) any breach of any
representation or warranty made by Buyer or Buyer Related Parties in this
Agreement; (b) any breach by Buyer or Buyer Related Parties of any covenant or
obligation of Buyer or Buyer Related Parties in this Agreement, or (c) any
Liabilities of the Business accruing after the Closing Time including without
limitation Liabilities for rent or other obligations under the Assigned Leases
becoming due and payable after the Closing Time, (d) any Liabilities under
Subleases, (e) any Liabilities of Seller under the Non-Assigned Leases becoming
due and payable after the Closing Time (f) the failure to pay any Liabilities or
perform any obligations related to the Assumed Liabilities, (g) any Liabilities
for brokers and finders fees to any broker or finder as previously disclosed in
writing by Buyer to Seller, or (h) Liabilities of Buyer under the Escrow
Agreement, if any.
Section
10.4 Limitations
on Time and Amount --- Seller and Finish Line.
(a) Seller
and Finish Line will have no Liability for indemnification under Section 10.2,
unless on or before July 3, 2011, Buyer notifies Seller of a claim with respect
thereto in writing specifying the factual basis of the claim in reasonable
detail to
Page
23
the
extent then known by Buyer. Notwithstanding the foregoing, (i) the
representations and warranties made in Section 3.1, Section 3.2, Section 3.4 and
Section 3.15 shall survive the Closing indefinitely, (ii) the representations
and warranties contained in Section 3.6 and Section 3.7 and Section 3.11 shall
survive the Closing until the expiration of the applicable statute of
limitations, and (iii) the representations and warranties contained in Section
3.20 with respect to each individual Lease shall survive until the earlier of
the respective Kick Out Time or termination date for each such Lease (iv) the
covenants set forth in Article 6 shall survive indefinitely unless a shorter
time frame is set forth specifically therein.
(b) Seller
and Finish Line will have no Liability for indemnification under Section 10.2
until the total of all Damages exceeds $50,000 (the “Basket”), and then only for
the amount by which the Damages exceed the Basket. The maximum
Liability of Seller or Finish Line for indemnification under Section 10.2 shall
not exceed an aggregate of $3,000,000 (the “Maximum
Amount”). Notwithstanding the foregoing, Buyer’s right to seek
indemnification hereunder for any (i) breach of the representations and
warranties made in Section 3.1, Section 3.2, Section 3.4, Section 3.6, and
Section 3.15, (ii) Damages arising out of fraud, (iii) Damages arising out of a
breach by Seller of the covenant contained in Section 6.5, (iv) Damages arising
out of third party claims resulting from acts or omissions of Finish Line or
Seller, or (v) Damages arising from the liabilities under any Assigned Leases
accruing prior to the Closing Time, shall not be subject to, or limited by, the
Basket or the Maximum Amount.
Section
10.5 Procedure
for Indemnification -- Third Party Claims.
(a) In the
case of Damages arising or which may arise by reason of any third party claim
(an “Action”), promptly
after receipt by the party seeking to be indemnified hereunder (the “Indemnitee”) of written notice
of the assertion or the commencement of any Action with respect to any matter in
respect of which indemnification may be sought by such party hereunder, the
Indemnitee shall give written notice (the “Notice”) to the party from
whom indemnification is being sought (the “Indemnitor”) stating the
nature and basis of such claim and shall thereafter keep the Indemnitor
reasonably informed with respect thereto, provided that failure of the
Indemnitee to give the Indemnitor prompt notice as provided herein shall not
relieve the Indemnitor of any of its obligations hereunder, except to the extent
that the Indemnitor is prejudiced by such failure. In case any such
Action is brought against any Indemnitee, the Indemnitor shall be entitled to
assume the defense thereof, by written notice of its intention to do so to the
Indemnitee within thirty (30) days after receipt of the Notice. If
the Indemnitor shall assume the defense of such Action, it shall not settle such
Action without the consent of the Indemnitee, which consent shall not be
unreasonably withheld or delayed, unless such settlement includes solely a
monetary payment which is satisfied by the Indemnitor and a concurrent full
release of the Indemnitee from all Liability with respect to such
Action. As long as the Indemnitor is contesting any such Action, the
Indemnitee shall not pay or settle any claims brought under such Action without
the consent of the Indemnitor, which consent shall not be unreasonably withheld
or delayed. Notwithstanding the assumption by the Indemnitor of the
defense of any Action as provided in this subsection, the Indemnitee shall be
permitted to participate in the defense of such Action and to employ counsel at
its own expense; provided, however, that if the defendants in any Action shall
Page
24
include
both an Indemnitor and any Indemnitee and such Indemnitee shall have reasonably
concluded that counsel selected by Indemnitor has a conflict of interest because
of the availability of different or additional defenses to such Indemnitee, such
Indemnitee shall have the right to select separate counsel to participate in the
defense of such Action on its behalf, at the expense of the Indemnitor but
provided the Indemnitor shall not be obligated to pay the expenses of more than
one separate counsel for all Indemnitees.
(b) If the
Indemnitor shall fail to notify the Indemnitee of its desire to assume the
defense of any such Action within the prescribed period of time, or shall notify
the Indemnitee that it will not assume the defense of any such Action, then the
Indemnitee may defend, and the Indemnitor shall be bound by any determination
made in such Action or any settlement thereof effected by the Indemnitee,
provided that any such determination or settlement shall not affect the right of
the Indemnitor to dispute the Indemnitee’s claim for
indemnification. The Indemnitor’s assumption of the defense of any
such Action shall not be deemed a concession that it is required to indemnify
the Indemnitee for the subject matter of such Action. If the
Indemnitor does not assume the defense of such Action, the Indemnitor shall be
permitted to participate in the defense of such Action and to employ counsel at
its own expense.
Section
10.6 Procedure
for Indemnification -- Other Claims. A
claim for indemnification for any matter not involving a third party claim may
be asserted by notice to the Indemnitor from the Indemnitee.
Section
10.7 Effect
of Insurance and Taxes.
(a) To the
extent the Indemnitee suffers Damages for which the Indemnitor is liable for
indemnification and for which third party insurance proceeds are available, the
Indemnitee shall submit a claim for such insurance recovery, and pursue such
claim in good faith. Any Indemnitee shall be deemed to have suffered
Damages for which the Indemnitor shall be liable for indemnification only to the
extent such Damages exceed the amount of any third party insurance proceeds
available to the Indemnitee in connection with the facts giving rise to the
right of indemnification. If the Indemnitee’s entitlement to such a
recovery is discovered after payment of indemnification hereunder, the
Indemnitee shall pursue such insurance recovery with due diligence, and the
amount of such indemnification shall be refunded to the party or parties who
paid it, but only after and to the extent of such recovery from such
insurer. An Indemnitee who has received a recovery for Damages
arising from breach of a representation, warranty, covenant or agreement under
this Agreement which is subject to indemnification shall have no right to
recover twice for the same Damages under the indemnification provided in this
Agreement nor shall its insurer be entitled to any kind of subrogation or
substitution which would give it the right to make a claim against the
Indemnitor.
(b) In
determining the amount of any Damage to the Indemnitee, any available Tax
benefit to the Indemnitee as a result of sustaining the indemnifiable Damage
shall be taken into account, such that only the net after tax effect of such
Damage to the Indemnitee shall be considered a Damage subject to the
indemnification provisions of this Agreement.
Page
25
(c) If a
Buyer Indemnified Person has a claim against a third party in respect of a
Damage which is subject to indemnification hereunder, the respective Buyer
shall, or shall cause the Buyer Indemnified Person to, transfer, assign and
convey such claim to Seller to the extent of any actual payment in respect of
such Damage by Seller; provided, however, that Buyer may elect not to transfer,
assign or convey such claim to Seller and if Buyer makes such an election then
Buyer waives for itself, and for each Buyer Indemnified Person, any right to
indemnification hereunder with respect to such claim.
Section
10.8 Lost
Profits and Special Damages. Notwithstanding
any other provision of this Agreement to the contrary, no Party shall be
required to indemnify, hold harmless or otherwise protect another Party or any
of the respective Affiliates or Related Persons for damage to reputation, lost
business opportunities, lost profits, mental or emotional distress, incidental,
special, consequential, punitive exemplary or indirect damages, interference
with business operations or diminution of the value of property, except to the
extent such claims are recovered by a third party or are related to the
termination of this Agreement pursuant to Section 9.1(a)(ii).
Section
10.9 Exclusive
Remedy. The
Parties hereby acknowledge and agree that the sole and exclusive remedy with
respect to any and all claims arising under this Agreement and the Ancillary
Documents, except for (i) fraud and (ii) those arising under Section 6.5 and
(iii) for a breach by a party which is the cause of the failure to close
pursuant to Article 9, shall be pursuant to the indemnification provisions set
forth in this Article 10. In furtherance of the foregoing, the
Parties on behalf of themselves and their respective Seller Indemnified Persons
and Buyer Indemnified Persons hereby waive, other than with respect to fraud and
those arising under Section 6.5, to the fullest extent permitted by law, any and
all other rights, claims and causes of action they may have against any other
Party or its officers, directors, employees, agents, Representatives, Related
Persons and Affiliates relating to any misrepresentation or breach of any
representation or warranty or non-fulfillment of any covenant, agreement or
other obligation as described in this Article 10, respectively.
Section
10.10 No
Right of Setoff. Except
as specifically permitted herein, neither party shall have the right to setoff
amounts owed under this Article against any other amounts owing to the other
party under this Agreement.
Article
11. General
Provisions
Section
11.1 Expenses. Except
as otherwise expressly provided in this Agreement, each Party to this Agreement
will bear its respective expenses incurred in connection with the preparation,
execution, and performance of this Agreement and the Contemplated Transactions,
including all fees and expenses of agents, Representatives, counsel, and
accountants.
Section
11.2 Public
Announcements. Any
public announcement or similar publicity with respect to this Agreement or the
Contemplated Transactions will be issued, if at all, at such time and in such
manner as Buyer and Seller mutually determine, unless required by Legal
Requirements.
Section
11.3 Notices. All
notices, consents, waivers, and other communications under this Agreement must
be in writing and will be deemed to have been duly given when (a) delivered by
hand (with written confirmation of receipt), (b) received by addressee, if
mailed by certified mail, return receipt requested, or (c) when received by the
addressee, if sent by a
Page
26
nationally
recognized overnight delivery service (receipt requested), in each case to the
appropriate addresses set forth below (or to such other addresses and as a Party
may designate by notice to the other Parties). The parties designate
their attorneys to give and receive all notices on their behalf:
|
Seller
or Finish Line:
|
with
a copy to:
|
|
|
The
Finish Line, Inc.
0000
Xxxxxxxxxxx Xxxx
Xxxxxxxxxxxx,
Xxxxxxx 00000
Attention:
Xxxx X. Xxxxx
|
Xxxxxx
& Xxxxxxxxx LLP
00
Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx,
XX 00000-0000
Attention:
Xxxxx Xxxxxxx
|
|
|
Buyer
or Buyer Related Parties:
|
with
a copy to:
|
|
|
E&J
Xxxxxxxx Corp.
00
Xxxx Xxxxxx
Xxxxxxxx,
Xxx Xxxx 00000
Attention:
Xxxxx Xxxxxxx
|
Xxxxxxx
Xxxxx & Xxxxxxxx
0000
Xxxxxxxx
Xxx
Xxxx, XX 00000-0000
Attention: Xxxxxxx
Xxxxx
|
Section
11.4 Jurisdiction;
Service of Process. Any
action or proceeding seeking to enforce any provision of, or based on any right
arising out of, this Agreement shall be brought against any of the Parties in
the courts of the State of Indiana, County of Xxxxxx, or, if it has or can
acquire jurisdiction, in the United States District Court for the Southern
District of Indiana, and each of the Parties consents to the jurisdiction of
such courts (and of the appropriate appellate courts) in any such action or
proceeding and waives any objection to venue laid therein. Process in any action
or proceeding referred to in the preceding sentence may be served on any Party
anywhere in the world.
Section
11.5 Waiver. Neither
the failure nor any delay by any Party in exercising any right, power, or
privilege under this Agreement or the Ancillary Documents will operate as a
waiver of such right, power, or privilege, and no single or partial exercise of
any such right, power, or privilege will preclude any other or further exercise
of such right, power, or privilege or the exercise of any other right, power, or
privilege.
Section
11.6 Entire
Agreement and Modification. Except
for the Confidentiality Agreements between Xxxxx Jazz, Inc. and Seller dated
April 20, 2009 and May 19, 2009, this Agreement supersedes all prior agreements
between the Parties with respect to its subject matter and constitutes (along
with the Ancillary Documents) a complete and exclusive statement of the terms of
the agreement among the Parties with respect to its subject matter. This
Agreement may not be amended except by a written agreement executed by the Party
to be charged with the amendment.
Section
11.7 Disclosure
Letter. Seller
may, at its option, include in the Disclosure Letter items that are not material
in order to avoid any misunderstanding, and any such inclusion, or any
references to dollar amounts, shall not be deemed to be an acknowledgment or
representation that such items are material, to establish any standard of
materiality or to define further the meaning of such terms for purposes of this
Agreement. Information disclosed in the Disclosure Letter and in any
supplement or amendment thereto shall constitute a disclosure for
Page
27
all
purposes under this Agreement notwithstanding any reference to a specific
section, and all such information shall be deemed to qualify the entire
Agreement and not just such section. Terms used in the Disclosure
Letter and not otherwise defined therein shall have the same meanings as are
ascribed to such terms in this Agreement. The contents of Disclosure
Letter are hereby incorporated by reference as if fully set forth
herein. Seller agrees that any references and exhibits contained in
the Disclosure Letter are being relied upon by Buyer as if said Disclosure
Letter and its exhibits are annexed hereto.
Section
11.8 Assignments,
Successors, and No Third-Party Rights. No
Party may assign any of its rights under this Agreement without the prior
consent of the other Parties. Subject to the preceding sentence, this
Agreement will apply to, be binding in all respects upon, and inure to the
benefit of the successors and permitted assigns of the Parties. Nothing
expressed or referred to in this Agreement will be construed to give any Person
other than the Parties to this Agreement any legal or equitable right, remedy,
or claim under or with respect to this Agreement or any provision of this
Agreement. This Agreement and all of its provisions and conditions are for the
sole and exclusive benefit of the Parties to this Agreement and their successors
and permitted assigns.
Section
11.9 Severability. If
any provision of this Agreement is held invalid or unenforceable by any court of
competent jurisdiction, the other provisions of this Agreement will remain in
full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
Section
11.10 Section
Headings, Construction. The
headings of Sections in this Agreement are provided for convenience only and
will not affect its construction or interpretation. All references to “Section”
or “Sections” refer to the corresponding section or sections of this Agreement.
All words used in this Agreement will be construed to be of such gender or
number as the circumstances require. Unless otherwise expressly provided, the
word “including” does not limit the preceding words or terms. The
Parties have participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the Parties and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any of the provisions of
this Agreement.
Section
11.11 Governing
Law. This
Agreement will be governed by the laws of the State of Indiana, without regard
to conflicts of laws principles.
Section
11.12 Execution
of Agreement. This
Agreement may be executed in one or more counterparts, each of which will be
deemed to be an original copy of this Agreement and all of which, when taken
together, will be deemed to constitute one and the same
agreement. The exchange of copies of this Agreement and of signature
pages by facsimile transmission or by electronic transmission in Adobe® Acrobat
format shall constitute effective execution and delivery of this Agreement as to
the parties and may be used in lieu of the original Agreement for all
purposes. Signatures of the parties transmitted by facsimile
transmission or by electronic transmission in Adobe® Acrobat format shall be
deemed to be their original signatures for any purposes whatsoever.
Section
11.13 Specific
Performance. The
Parties agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance
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28
with
their specific terms or were otherwise breached and affirms that in the event of
a breach of this Agreement, money damages may be inadequate and the
non-breaching Party may have no adequate remedy at law. Accordingly,
each of the Parties shall have the right, in addition to any other rights and
remedies existing in its favor, to enforce its rights and the other Party’s
obligations hereunder not only by an action or actions for damages but also by
an action or actions for specific performance, injunctive and/or other equitable
relief. If any such action is brought by a Party to enforce this
Agreement, the other Party waives (a) the defense that there is an adequate
remedy at law and (b) any requirement under any Law to post security or prove
actual damages as a prerequisite to obtaining equitable relief.
Section
11.14 Finish
Line Liability. Finish
Line by execution of this Agreement, unconditionally agrees that it shall be
jointly and severally liable for all obligations and liabilities of Seller
herein, notwithstanding that Finish Line has not specifically undertaken said
liability or obligation.
Section
11.15 Buyer
Related Parties Liability. Each
of the Buyer Related Parties by execution of this Agreement, unconditionally
agrees that it shall be jointly and severally liable for all obligations and
liabilities of Buyer herein, notwithstanding that a Buyer Related Party has not
specifically undertaken said liability or obligation.
[Signature
Page Immediately Following]
Page
29
IN
WITNESS WHEREOF, the Parties have executed and delivered this Asset Purchase
Agreement as of the date first written above.
|
“Seller”
|
“Buyer”
|
||||
|
The
Finish Line Man Alive, Inc.
|
Man
Alive Acquistions, LLC
|
||||
|
By:
|
/s/ Xxxx Xxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | ||
|
Printed:
|
Xxxx Xxxxx |
Printed:
|
Xxxxx Xxxxxxx | ||
|
Title
|
Secretary |
Title:
|
Member | ||
|
“Finish
Line”
|
Buyer Related Parties | ||||
|
|
|||||
| (See attached signature pages) | |||||
| The Finish Line, Inc. | |||||
|
By:
|
/s/ Xxxx Xxxxx | ||||
|
Printed:
|
Xxxx Xxxxx | ||||
|
Title:
|
Chief Administrative Officer and Secretary | ||||
Page
30
|
E&J
Xxxxxxxx Corp.
|
Jazz
of Green Acres LLC
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
President |
Title:
|
Member | |
|
00
Xxxxxx Xxxxxx Store, Inc.
|
Xxxxx
Jazz Inc.
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
President |
Title:
|
President | |
|
00
Xxxx Xxxxxxxx Store, Inc.
|
Xxxxx
Jazz Xxxx Xxxxx LLC
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
President |
Title:
|
Member | |
|
00
Xxxxxx Xxx. Store, Inc.
|
Xxxxx
Jazz Citadel Mall LLC
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
President |
Title:
|
Member | |
|
86
Delancey Store, Inc.
|
Xxxxx
Jazz Coastal Grand LLC
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
President |
Title:
|
Member | |
|
00-00
000xx
Xxxxxx Store, Inc.
|
Xxxxx
Jazz Columbia Place LLC
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
President |
Title:
|
Member | |
|
000
Xxxx 000 Xxxxxx Store, Inc.
|
Xxxxx
Jazz Cross Creek LLC
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
President |
Title:
|
Member | |
Page
31
|
000
Xxxx 000xx
Xxxxxx Store, Inc.
|
Xxxxx
Jazz E-Commerce, LLC
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
President |
Title:
|
Member | |
|
161
Street Shopping Center Store LLC
|
Xxxxx
Jazz Fairlane LLC
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
Member |
Title
|
Member | |
|
000-00
Xxxxxxx Xxxxxx Store, Inc.
|
Xxxxx
Jazz Northwoods Mall LLC
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
President |
Title:
|
Member | |
|
000-000
Xxxx Xxxxxxx Xxxxx, Inc.
|
Xxxxx
Jazz of Bay Plaza LLC
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
President |
Title:
|
Member | |
|
000
X. 000 Xx. Store, Inc.
|
Xxxxx
Jazz of Belmont LLC
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
President |
Title:
|
Member | |
|
000
Xxxx Xxxxxxx Store, Inc.
|
Xxxxx
Jazz of Cheltenham Square LLC
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
President |
Title:
|
Member | |
|
270
Fordham Store, Inc.
|
Xxxxx
Jazz of Eastland LLC
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
President |
Title:
|
Member | |
Page
32
|
000
Xxxxxxxxxxxxx Xxxxxx Store, LLC
|
Xxxxx
Jazz of Eastpoint LLC
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
Member |
Title:
|
Member | |
|
000
Xxxxxxxxxxxxx Xxxxxx Store, Inc.
|
Xxxxx
Jazz of Evergreen Plaza LLC
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
President |
Title:
|
Member | |
|
000
Xxxxxxxxxxxxx Xxx. Store, Inc.
|
Xxxxx
Jazz of Ford City LLC
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
President |
Title:
|
Member | |
|
442
Xxxxxx Store, Inc.
|
Xxxxx
Jazz of Forestville LLC
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
President |
Title:
|
Member | |
|
000
Xxxxxx Xxxxxx Store, Inc.
|
Xxxxx
Jazz of Four Seasons LLC
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
President |
Title:
|
Member | |
|
000
Xxxxxx Xxxxxx Store, Inc.
|
Xxxxx
Jazz of Greenbriar LLC.
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
President |
Title:
|
Member | |
|
000
Xxxxxx Xxxxxx Store, Inc.
|
Xxxxx
Jazz of Xxxxxxx Mall LLC
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
President |
Title:
|
Member | |
Page
33
|
617
West 181 Store, Inc.
|
Xxxxx
Jazz of Kings Plaza Inc.
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
President |
Title:
|
President | |
|
954
Flatbush Store, Inc.
|
Xxxxx
Jazz of Military Circle LLC
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
President |
Title:
|
Member | |
|
958
Flatbush Store, Inc.
|
Xxxxx
Jazz of Mondawmin LLC
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
President |
Title:
|
Member | |
|
0000
Xxxxxxxx Xxxxxxxxx Store, Inc.
|
Xxxxx
Jazz of Newport, Inc.
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
President |
Title:
|
President | |
|
1260
Xxxxxx Store, Inc.
|
Xxxxx
Jazz of Northland LLC
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
President |
Title:
|
Member | |
|
0000
Xxxxx Xxxxxx Store, Inc.
|
Xxxxx
Jazz of North Riverside LLC
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
President |
Title:
|
Member | |
|
3122
Steinway Store, Inc.
|
Xxxxx
Jazz of Oakland Mall LLC
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
President |
Title:
|
Member | |
Page
34
|
0000
0xx
Xxxxxx Store LLC
|
Xxxxx
Jazz of PPG LLC
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
Member |
Title
|
Member | |
|
Xxxxxxxx
Plaza Store, Inc.
|
Xxxxx
Jazz of Pitkin LLC
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
President |
Title:
|
Member | |
|
DIS
Stores, Inc.
|
Xxxxx
Jazz of Richmond
Town
Square Mall LLC
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
President |
Title:
|
Member | |
|
Dyckman
Athletics, Inc.
|
Xxxxx
Jazz of River Oaks LLC
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
President |
Title:
|
Member | |
|
Five
Town Shopping Mall Store, Inc.
|
Xxxxx
Jazz of South DeKalb LLC
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
President |
By:
|
Member | |
|
Xxxxxxxx
XX Store LLC
|
Xxxxx
Jazz of Roosevelt LLC
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
Member |
Title
|
Member | |
|
Xxxxxx
Athletics, Inc.
|
Xxxxx
Jazz of Southlake LLC
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
President |
Title:
|
Member | |
Page
35
|
Greenacres
Sportswear LLC
|
Xxxxx
Jazz of Southpark LLC
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
Member |
Title:
|
Member | |
|
Hyperactive
of Xxxxxxxx Plaza LLC
|
Pologrounds,
Ltd.
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
Member |
Title:
|
President | |
|
Hyperactive
of Kings Plaza LLC
|
Rap
Sport, Inc.
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
Member |
Title:
|
President | |
|
J&J
Flatbush Ave LLC
|
S&D
Xxxxxx Corp.
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
Member |
Title:
|
President | |
|
J&J
Pitkin Realty LLC
|
S&D
Men’s Inc.
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
Member |
Title:
|
President | |
|
JJK
Stores, Inc.
|
S&D
Mens Wear of Kings Plaza, LLC
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxx | |
|
Printed:
|
Xxxxx Xxxxxxx |
Printed:
|
Xxxxx Xxxxxxx | |
|
Title:
|
President |
Title:
|
Member | |
|
Man
Alive Stores, LLC
|
||||
|
By:
|
/s/ Xxxxx Xxxxxxx | |||
|
Printed:
|
Xxxxx Xxxxxxx | |||
|
Title:
|
Member | |||
Page
36
Exhibit
A
Definitions
“Affiliate”--with respect to a
specified Person, any other Person that directly, or indirectly, involves one or
more intermediaries, controls or is controlled by, or is under common control
with, such Person. For purposes of this Agreement, “control” means
the possession, directly or indirectly, of the power to direct or cause the
direction of management and policies, whether through the ownership of voting
securities, by contract or otherwise.
“Ancillary Documents”--means
the Xxxx of Sale and the other documents and instruments to be executed in
connection with this Agreement.
“Business”-- the operation of
any retail stores selling men’s and women’s apparel and accessories under the
trade name “Man Alive” or “Decibel”.
“Buyer’s Knowledge” or “to Buyer’s Knowledge”--means
the actual knowledge of Xxxxx Xxxxxxx.
“COBRA”--the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended, or any successor law, and
regulations and rules issued pursuant to that Act or any successor
law.
“Code”--the Internal Revenue
Code of 1986, as amended, or any successor law, and regulations issued by the
IRS pursuant to the Internal Revenue Code or any successor law.
“Consent”--any approval,
consent, ratification, waiver, or other authorization (including any
Governmental Authorization).
“Contemplated
Transactions”--all of the transactions contemplated by this Agreement,
including, without limitation, the sale of the Purchased Assets by Seller to
Buyer and the assumption of the Assumed Liabilities by Buyer, and the execution,
delivery, and performance of the Ancillary Documents.
“Contract”--any written
agreement, purchase order, contract, lease, license, obligation, promise, or
undertaking that is legally binding.
“Copyrights”--means registered
United States and foreign copyrights.
“Damages”--means losses,
liabilities, claims, damages (excluding incidental and consequential damages),
or expenses (including reasonable attorneys’ fees) whether or not involving a
third-party claim. With respect to any installment payments not
timely made by Seller, such payments shall accrue interest at 10% per
annum.
“Disclosure Letter”--the
disclosure letter delivered by Seller to Buyer concurrently with the execution
and delivery of this Agreement and attached as Exhibit B to this
Agreement.
“Encumbrance”--any charge,
claim, lien, pledge, security interest, or restriction or encumbrance of any
kind.
Exhibit A
“Environmental Law”--means any
applicable Legal Requirement regulating or prohibiting Releases into any part of
the environment (indoor or outdoor), or pertaining to protection of natural
resources or the environment including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act (“CERCLA”) (42 U.S.C. §§ 9601,
et seq.), the Hazardous Materials Transportation Act (49 U.S.C. §§ 1801, et
seq.), the Resource Conservation and Recovery Act (42 U.S.C. §§ 6901, et seq.),
the Clean Water Act (33 U.S.C. §§ 1251, et seq.), the Clean Air Act (33 U.S.C.
§§ 7401, et seq.) and the Toxic Substances Control Act (15 U.S.C.
§§ 7401, et seq.), and the regulations promulgated pursuant thereto,
as such laws are in effect as of the Closing Time.
“ERISA”--the Employee
Retirement Income Security Act of 1974, as amended.
“GAAP”--generally accepted
United States accounting principles, applied on a basis consistent with the
basis on which the Reviewed Financial Statements were prepared.
“Governmental
Authorization”--any approval, consent, permit, or other authorization
issued or granted by or under the authority of any Governmental Body pursuant to
any Legal Requirement.
“Governmental Body”--any United
States federal, state, local or municipal government.
“Hazardous Material”--means any
substance, chemical, pollutant, contaminant, material or waste as to which
liability or standards of conduct are imposed under any Environmental Law,
including, without limitation, any material or substance that is defined as a
“hazardous waste,” “hazardous material,” “hazardous substance,” “extremely
hazardous waste,” “restricted hazardous waste,” “contaminant,” “toxic waste” or
“toxic substance” under any provision of any Environmental Law.
“Intellectual Property
Assets”--means Marks, Patents, Copyrights, trade secrets, know-how, works
and inventions, and registrations and applications for any of the
foregoing.
“IRS”--the United States
Internal Revenue Service or any successor agency, and, to the extent relevant,
the United States Department of the Treasury.
“Legal Requirement”--any
binding constitution, law, ordinance, regulation, statute, or treaty of any
Governmental Body.
“Liability” means
with respect to any Person, any liability or obligation of such Person of any
kind, character or description, whether known or unknown, absolute or
contingent, accrued or unaccrued, disputed or undisputed, liquidated or
unliquidated, secured or unsecured, joint or several, due or to become due,
vested or unvested, executory, determined, determinable or otherwise, and
whether or not the same is required to be accrued on the financial statements of
such Person.
“Marks”--means all trade names,
trademarks and service marks, together with all goodwill associated with each of
the foregoing.
Exhibit A
“Material Adverse Change”--a
material adverse change in the business, financial condition or results of
operations of Seller, taken as a whole, that is so substantial and adverse as to
fundamentally impair the value to Buyer of the Purchased Assets and does not
arise from or relate to customers of Seller’s business or changes in the volume
or prices of sales by Seller; provided, however, that any effect resulting from
the following shall not be considered when determining whether a Material
Adverse Change has occurred: (i) changes that exist on the date
hereof and that have been reflected in the Agreement or the Disclosure Letter;
(ii) changes that are generally applicable to the industry in which Seller
operates, including, without limitation, to the economy generally; (iii)
seasonal variation in Seller’s business or Seller’s results of operations in the
Ordinary Course of Business; (iv) national or international political
conditions, including any engagement in hostilities, whether or not pursuant to
the declaration of a national emergency or war, or the occurrence of any
military or terrorist attack; (v) any change in currency or interest rates;
(vi) any change in any Legal Requirement applicable to Seller or the
Purchased Assets; (vii) any increases in the costs of apparel, commodities or
supplies; (viii) any change in the financial condition or results of operation
of Seller caused by the pending sale of the Purchased Assets to Buyer; (ix) any
change in GAAP or any authoritative interpretations thereof; or (x) any actions
to be taken pursuant to or in accordance with this Agreement or pursuant to
Buyer’s request or with Buyer’s consent. Any determination as to
whether any circumstance, change or effect has a Material Adverse Change shall
be made only after taking into account all effective insurance coverages,
third-party indemnifications and Tax benefits with respect to such circumstance,
change or effect.
“Order”--any award, injunction,
judgment, order or ruling issued by any Governmental Body or by any
arbitrator.
“Ordinary Course of
Business”--an action taken by a Person will be deemed to have been taken
in the “Ordinary Course of Business” only if such action is consistent with the
past practices of such Person and only if in the ordinary course of commercial
operations engaged in by such Person.
“Patents”--means United States
and foreign patents and patent applications.
“Person”--any individual,
corporation (including any non-profit corporation), general or limited
partnership, limited liability company, joint venture, estate, trust,
association, organization, labor union, or other entity.
“Proceeding”--any action,
arbitration, hearing, litigation, or suit (whether civil or criminal),
commenced, brought, conducted, or heard by or before any Governmental Body or
arbitrator.
“Related Persons”--with respect
to any specified Person: (i) any Affiliate of such specified Person;
and (ii) each Person that serves as a director or officer, of such
Person.
“Release”--any spilling,
leaking, discharging, or dumping into the environment, whether intentional or
unintentional.
Exhibit A
“Remedial Action”--means all
actions, including, without limitation, any capital expenditures, required under
any Environmental Law to (a) clean up, remove, treat, or in any other way
ameliorate or address any Hazardous Materials; (b) prevent the Release or threat
of Release, or minimize the further Release of any Hazardous Material so it does
not endanger or threaten to endanger the public health or welfare of the indoor
or outdoor environment; (c) perform preremedial studies and investigations or
post remedial monitoring and care pertaining or relating to a Release; or (d)
achieve or maintain compliance with any Environmental Law.
“Representative”--with respect
to a particular Person, any director, officer, employee, agent, consultant,
advisor, or other representative of such Person, including legal counsel,
accountants, and financial advisors.
“Seller’s Knowledge” or “to Seller’s Knowledge”--means
the actual knowledge of any employees of Seller or Finish Line with knowledge of
the transaction and the operation of Seller’s and Finish Line’s business prior
to Closing, including without limitation Xxx Xxxxxx, Xxxx Xxxxx or Xxxxxx
Xxxxxxx.
“Tax”--any tax (including any
income tax, capital gains tax, value-added tax, sales tax, use tax, transfer
tax, property tax, gift tax, or estate tax), levy, assessment, tariff, duty
(including any customs duty), deficiency, or other tax imposed, assessed, or
collected by or under the authority of any Governmental Body or payable pursuant
to any tax-sharing agreement or any other Contract relating to the sharing or
payment of any such tax.
“Tax Return”--any return
(including any information return), report, statement, schedule, notice, form,
or other document or information filed with or submitted to, or required to be
filed with or submitted to, any Governmental Body in connection with the
determination, assessment, collection, or payment of any Tax or in connection
with the administration, implementation, or enforcement of or compliance with
any Legal Requirement relating to any Tax.
Exhibit
A
Exhibit
E
Other
Buyer Parties
|
1.
|
E&J
Xxxxxxxx Corp.
|
|
2.
|
00
Xxxxxx Xxxxxx Store, Inc.
|
|
3.
|
00
Xxxx Xxxxxxxx Store, Inc.
|
|
4.
|
00
Xxxxxx Xxx. Store, Inc.
|
|
5.
|
86
Xxxxxxxx Store, Inc.
|
|
6.
|
00-00
000xx
Xxxxxx Store, Inc.
|
|
7.
|
000
Xxxx 000 Xxxxxx Store, Inc.
|
|
8.
|
000
Xxxx 000xx
Xxxxxx Store, Inc.
|
|
9.
|
000
Xxxxxx Xxxxxxxx Xxxxxx Store LLC
|
|
10.
|
000-00
Xxxxxxx Xxxxxx Store, Inc.
|
|
11.
|
000-000
Xxxx Xxxxxxx Store, Inc.
|
|
12.
|
000
X. 000 Xx. Store, Inc.
|
|
13.
|
000
Xxxx Xxxxxxx Store, Inc.
|
|
14.
|
270
Fordham Store, LLC
|
|
15.
|
000
Xxxxxxxxxxxxx Xxxxxx Store, LLC
|
|
16.
|
000
Xxxxxxxxxxxxx Xxxxxx Store, Inc.
|
|
17.
|
000
Xxxxxxxxxxxxx Xxx. Store, Inc.
|
|
18.
|
442
Xxxxxx Store, Inc.
|
|
19.
|
000
Xxxxxx Xxxxxx Store, Inc.
|
|
20.
|
000
Xxxxxx Xxxxxx Store, Inc.
|
|
21.
|
000
Xxxxxx Xxxxxx Store, Inc.
|
|
22.
|
000
Xxxx 000 Store, Inc.
|
|
23.
|
954
Flatbush Store, Inc.
|
|
24.
|
958
Flatbush Store, Inc.
|
|
25.
|
0000
Xxxxxxxx Xxxxxxxxx Store, Inc.
|
|
26.
|
1260
Xxxxxx Store, Inc.
|
|
27.
|
0000
Xxxxx Xxxxxx Store, Inc.
|
|
28.
|
3122
Steinway Store, Inc.
|
|
29.
|
0000
0xx
Xxxxxx Store LLC
|
|
30.
|
Xxxxxxxx
Plaza Store, Inc.
|
|
31.
|
DJS
Stores, Inc.
|
|
32.
|
Xxxxxxx
Athletics, Inc.
|
|
33.
|
Five
Town Shopping Mall Store, Inc.
|
|
34.
|
Xxxxxxxx
XX Store LLC
|
|
35.
|
Xxxxxx
Athletics, Inc.
|
|
36.
|
Greenacres
Sportswear LLC
|
|
37.
|
Hyperactive
of Xxxxxxxx Plaza LLC
|
|
38.
|
Hyperactive
of Kings Plaza LLC
|
|
39.
|
J&J
Flatbush Ave LLC
|
|
40.
|
J&J
Pitkin Realty LLC
|
|
41.
|
JJK
Stores, Inc.
|
|
42.
|
Jazz
of Green Acres LLC
|
Exhibit
E
|
43.
|
Xxxxx
Jazz Inc.
|
|
44.
|
Xxxxx
Jazz Xxxx Xxxxx LLC
|
|
45.
|
Xxxxx
Jazz Citadel Mall LLC
|
|
46.
|
Xxxxx
Jazz Coastal Grand LLC
|
|
47.
|
Xxxxx
Jazz Columbia Place LLC
|
|
48.
|
Xxxxx
Jazz Cross Creek LLC
|
|
49.
|
Xxxxx
Jazz E-Commerce, LLC
|
|
50.
|
Xxxxx
Jazz Fairlane LLC
|
|
51.
|
Xxxxx
Jazz Northwoods Mall LLC
|
|
52.
|
Xxxxx
Jazz of Bay Plaza LLC
|
|
53.
|
Xxxxx
Jazz of Belmont LLC
|
|
54.
|
Xxxxx
Jazz of Cheltenham Square LLC
|
|
55.
|
Xxxxx
Jazz of Eastland LLC
|
|
56.
|
Xxxxx
Jazz of Eastpoint LLC
|
|
57.
|
Xxxxx
Jazz of Evergreen Plaza LLC
|
|
58.
|
Xxxxx
Jazz of Ford City LLC
|
|
59.
|
Xxxxx
Jazz of Forestville LLC
|
|
60.
|
Xxxxx
Jazz of Four Seasons LLC
|
|
61.
|
Xxxxx
Jazz of Greenbriar LLC
|
|
62.
|
Xxxxx
Jazz of Xxxxxxx Mall LLC
|
|
63.
|
Xxxxx
Jazz of Kings Plaza Inc.
|
|
64.
|
Xxxxx
Jazz of Military Circle LLC
|
|
65.
|
Xxxxx
Jazz of Mondawmin LLC
|
|
66.
|
Xxxxx
Jazz of Newport, Inc.
|
|
67.
|
Xxxxx
Jazz of Northland LLC
|
|
68.
|
Xxxxx
Jazz of North Riverside LLC
|
|
69.
|
Xxxxx
Jazz of Oakland Mall LLC
|
|
70.
|
Xxxxx
Jazz of PGP LLC
|
|
71.
|
Xxxxx
Jazz of Pitkin LLC
|
|
72.
|
Xxxxx
Jazz of Richmond Town Square Mall
LLC
|
|
73.
|
Xxxxx
Jazz of River Oaks LLC
|
|
74.
|
Xxxxx
Jazz of South DeKalb LLC
|
|
75.
|
Xxxxx
Jazz Roosevelt LLC
|
|
76.
|
Xxxxx
Jazz Southlake LLC
|
|
77.
|
Xxxxx
Jazz Southpark LLC
|
|
78.
|
Pologrounds,
Ltd.
|
|
79.
|
Rap
Sport, Inc.
|
|
80.
|
S&D
Xxxxxx Corp.
|
|
81.
|
S&D
Men’s Inc.
|
|
82.
|
S&D
Mens Wear of Kings Plaza, LLC
|
|
83.
|
Man
Alive Stores, LLC
|
Exhibit E
