EXHIBIT 10.95
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is dated as of the lst day
of May, 1997 by and between XXXX CREDIT CORPORATION, a Delaware corporation
("Seller") and DULUTH MASTER TRUST, an Ohio Business Trust ("Buyer").
WHEREAS, Seller owns all of the issued and outstanding shares of common
stock (the "Stock") of PAPERMILL LEASING, INC., a Delaware corporation (formerly
known as Xxxx Leasing, Inc., which was formerly owned by XXXX LEASE FINANCE
CORPORATION, a wholly owned subsidiary of Seller) (the "Corporation") , which
conducts no business other than (i) the leasing of the Undivided Interest (as
defined in the Lease) to Consolidated Paper of Wisconsin Rapids, Wisconsin
(successor in interest to Lake Superior Paper Industries) ("Lessee") pursuant to
that certain Facility Lease dated December 31, 1987, between Lessee and First
Bank National Association (formerly known as First National Bank of Minneapolis)
, not in its individual capacity, but solely as Owner Trustee ("Owner Trustee"),
as supplemented by Lease Supplement No. 1 on May 5, 1995, (the "Lease") and (ii)
the performance of its obligations under the Transaction Documents (as defined
in the Lease); and
WHEREAS, Seller is willing to sell the Stock of the Corporation to Buyer on
the terms and subject to the conditions set forth herein; and
WHEREAS, Buyer is willing to buy the Stock of the Corporation from Seller
on the terms and subject to the conditions set forth herein;
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
1. Defined Terms. All capitalized terms used herein and not otherwise
defined herein shall have the meaning ascribed to such terms in the Lease.
2. Purchase and Sale. On the Closing Date (as hereinafter defined) and
subject to the terms and conditions hereof, Seller agrees to sell, assign,
transfer and convey to Buyer, and Buyer agrees to purchase and acquire from
Seller, all of the Seller's right, title and interest in and to the Stock of the
Corporation for the Purchase Price (as hereinafter defined).
3. Conditions Precedent.
(a) The obligations of Buyer to purchase the Stock from Seller and
to pay the Purchase Price to Seller at Closing (as hereinafter defined) are
subject to the satisfaction of the following conditions precedent:
(i) Seller shall have delivered to Buyer the certificate
representing the Stock, duly endorsed in blank.
(ii) The representations and warranties of the Seller set
forth in Section 5 hereof shall be true and correct
on the Closing Date.
(iii) All corporate and other proceedings in connection
with the transactions contemplated hereby, and all
documents and instruments incident to such
transactions, including those to be delivered at
Closing pursuant to Section 4(b) hereof, shall be
reasonably satisfactory to Buyer and, if applicable,
shall have been delivered to Buyer.
(iv) The Corporation shall be in good standing under the
laws of the State of Delaware and shall have complied
with all applicable laws and governmental
regulations.
(v) There shall have been no loss, damage or destruction
of the Undivided Interest, the Facility or any part
of either thereof prior to the Closing.
Buyer shall have the right to waive any or all of the foregoing conditions
precedent; however, no waiver by Buyer of any condition precedent shall
constitute a waiver by Buyer of any other condition precedent.
(b) The obligations of Seller to sell the Stock to Buyer at Closing
is subject to the satisfaction of the following conditions precedent:
(i) Seller shall have received the Purchase Price from
Buyer.
(ii) The representations and warranties of the Buyer set
forth in Section 6 hereof shall be true and correct
on the Closing Date.
(iii) All corporate and other proceedings in connection
with the transactions contemplated hereby, and all
documents and instruments incident to such
transactions, including those to be delivered at
Closing pursuant to Section 4(c) hereof, shall be
reasonably satisfactory to Seller and, if applicable,
shall have been delivered to Seller.
Seller shall have the right to waive any or all of the foregoing conditions
precedent; however, no waiver by Seller of any condition precedent shall
constitute a waiver by Seller of any other condition precedent.
4. Closing.
(a) The closing of the transactions contemplated hereby ("Closing")
shall occur on May 1, 1997 at the offices of Winston & Xxxxxx, 00 Xxxx Xxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxx, or at such other location or on such other date as
Seller and Buyer shall mutually agree (the "Closing Date").
(b) At the Closing, Seller shall deliver to Buyer:
(i) the certificate representing all of the Stock in
the Corporation, duly endorsed in blank;
(ii) the Certificate of Incorporation and all amendments
thereto, the By-laws, the minute books and all other
corporate records of the Corporation;
(iii) a certificate signed by a duly authorized officer of
Seller, dated the Closing Date, stating that (A) the
representations and warranties of Seller contained in
Section 5 hereof are true and correct on and as of
such date;(B) no event attributable to Seller has
occurred and is continuing which constitutes a default
or an event of default hereunder; and (C) to such
officer's knowledge, no Event of Default, Indenture
Event of Default or Event of Loss has occurred and is
continuing;
(iv) the Lease Transaction Documents and all supplements,
amendments, books, records, schedules, and ancillary
documents pertaining thereto in Seller's possession;
(v) letters of resignation of all officers and
directors of the Corporation;
(vi) a certificate of the Secretary or Assistant
Secretary of Seller, dated the Closing Date,
attaching and certifying as to (A) the Board of
Directors resolution duly authorizing the
execution, delivery and performance by it of this
Agreement, (B) its certificate of incorporation
certified as of a recent date by the Secretary of
State in the jurisdiction of its incorporation,
(C) its by-laws, and (D) the incumbency and
signature of persons authorized to execute and
deliver this Agreement on its behalf;
(vii) a good standing certificate from the appropriate
officer of the state of Seller's incorporation, dated
a recent date, as to the good standing of Seller as a
corporation in such state;
(viii)a good standing certificate from the appropriate
officer of the state of the Corporation's
incorporation, dated a recent date, as to the good
standing of the Corporation as a corporation in such
state; and
(ix) an opinion of in-house counsel to Seller, and of
Winston & Xxxxxx, special counsel to Seller, in each
case in form and substance reasonably satisfactory to
Buyer.
(c) At the Closing, Buyer shall deliver to Seller:
(i) the purchase price for the Stock in the amount of
Thirteen Million, Five Hundred Thousand, Two Hundred
Twenty Dollars ($13,500,220.00) (the "Purchase
Price"), payable by wire transfer of immediately
available funds;
(ii) a certificate signed by a duly authorized officer
of Buyer, dated the Closing Date, stating that (A)
the representations and warranties of Buyer
contained in Section 6 hereof are true and correct
on and as of such date; and (B) no event
attributable to Buyer has occurred and is
continuing which constitutes a default or event of
default hereunder;
(iii) a certificate of the (Secretary or Assistant
Secretary) of Buyer, dated the Closing Date, attaching
and certifying as to (A) the trust agreement duly
authorizing the execution, delivery and performance by
it of this Agreement, (B) its certificate of formation
certified as of a recent date by the Secretary of
State in the jurisdiction of its formation, and (C)
the incumbency and signature of persons authorized to
execute and deliver this Agreement on its behalf;
(iv) a good standing certificate from the appropriate
officer of the state of Buyer's formation, dated a
recent date, as to the good standing of Buyer as a
business trust in such state;
(v) an opinion of Cloud, Xxxxxx. & Xxxx special counsel to
Buyer, in each case in form and substance reasonably
satisfactory to Seller;
(vi) a non-consolidation opinion from Cloud, Xxxxxx & Xxxx,
special counsel to Buyer, in form and substance
reasonably satisfactory to Seller; and]
(vii) a written commitment from AIM Financial Corporation
obligating it to provide Buyer funds sufficient to
duly discharge Buyer's obligations assumed pursuant to
Section 7(b) hereof.
(d) Notwithstanding the provisions of subparagraph (c)(i) of this
Section 4, the Purchase Price shall be adjusted by mutual agreement of Seller
and Buyer in the event that (i) the Closing shall occur on a day other than May
1, 1997, (ii) the aggregate amounts outstanding on the Closing Date under the
Notes from the Owner Trustee to the Loan Participants are other than
$18,078,032.77 (inclusive of accrued interest of $699,764.92), or (iii) Buyer
does not discharge its obligations set forth in Section 7(b) hereof.
(e) Notwithstanding the provisions of subparagraphs (c) (i) and
(d) of this Section 4, the Purchase Price shall be increased by an amount (the
"Additional Purchase Price") equal to (i) $400,000 if the Lessee shall deliver
the notice described in Section 13(a) of the Facility Lease of its election to
purchase the Undivided Interest for the amounts described in Section 13(b) of
the Facility Lease, or (ii) the amount described in the succeeding sentence if
any Person (including the Lessee) makes a bona fide offer prior to April 30,
1998, to purchase the Corporation's interest in the Undivided Interest. The
amount of the Additional Purchase Price described in clause (ii) of the
preceding sentence shall equal (A) $400,000, if the "Cash Portion of the Offer
Price,, (as defined below) is greater than or equal to $17,615,000, (B) $0 if
the Cash Portion of the Offer Price is less than or equal to $16,972,000 and (C)
the amount described in the succeeding sentence if the Cash Portion of the Offer
Price is greater than $16,972,000 but less than $17,615,000. The amount of the
Additional Purchase Price described in clause (C) of the preceding sentence
shall equal the product of $400,000 and a fraction, the numerator of which is
equal to the amount by which the Cash Portion of the Offer Price exceeds
$16,972,000 and the denominator of which is equal to $643,000. For purposes of
this subparagraph (e) of this Section 4, the term "Cash Portion of the Offer
Price,, shall equal the aggregate sales proceeds to be received pursuant to the
offer to purchase the Undivided Interest (which shall include the amount of cash
proceeds to be received by the Corporation, and the value of any other
consideration (including the assumption of debt) received by the Corporation,
but shall not include the aggregate amounts (including accrued interest) then
outstanding under the Notes from the Owner Trustee to the Loan Participants or
the amount of the obligations set forth in that certain Settlement Agreement
dated September 30, 1996, between the Corporation and the Lessee). Buyer shall
pay such Additional Purchase Price to Seller within 5 days of its receipt of any
such offer, and if not paid within such period, on such date Seller shall be
entitled to such amount plus interest at a rate per annum equal to fifteen
percent (15%) ("Late Payment Rate") from such date to the date of the payment to
Seller.
(f) The obligation to adjust the Purchase Price pursuant to
subparagraphs (d) and (e) of this Section 4 shall survive the consummation of
the transactions contemplated by this Agreement.
5. Representations and Warranties of Seller. Seller hereby represents and
warrants to Buyer, each of which shall survive the Closing, as follows:
(a) Seller is the lawful and beneficial owner and holder of record
of all of the Stock of the Corporation, free and clear of any and all pledges,
security interests, liens, other encumbrances of any kind or nature whatsoever
other than liens for current taxes, assessments or governmental charges or
levies not yet due. The delivery of the duly endorsed certificate representing
the Stock at the Closing by Seller to Buyer will transfer good and marketable
title to such Stock to Buyer, free and clear of any and all pledges, security
interests, liens, or other encumbrances of any kind whatsoever.
(b) Each of Seller and the Corporation is a corporation duly
incorporated, validly existing and in good standing under the laws of the state
of its incorporation, and has all requisite corporate power and authority to own
and lease and operate its properties and carry on its business as now conducted
and, with respect to Seller, to consummate the transactions contemplated hereby.
(c) This Agreement has been duly and validly authorized, executed,
and delivered by Seller and constitutes a legal, valid and binding obligation of
Seller, enforceable in accordance with its terms, except as limited by
applicable bankruptcy, insolvency, moratorium, fraudulent conveyance, and other
laws affecting the rights and remedies of creditors.
(d) The authorized capital stock of the Corporation consists of one
thousand (1000) shares of common stock, $1 par value, and one thousand (1000)
shares of said common stock of the Corporation are outstanding. The Stock
constitutes all of the issued and outstanding stock of the Corporation and is
validly issued, outstanding, fully paid and non-assessable.
(e) The assets of the Corporation consist of the beneficial interest
(the "Beneficial Interest") in the Trust, which Trust owns the Undivided
Interest equal to a 10.47120419% interest in the Facility.
(f) The Casualty Values, Basic Rent Percentages, Termination Values,
Special Termination Values and Agreed Fair Market Values under the Lease are all
as set forth on Schedule 1 attached hereto. The amortization schedules for the
Notes are set forth on Schedule 2 hereto.
(g) No event of default by the Corporation has occurred and is
continuing under the Lease Transaction Documents, and to Seller's knowledge, no
Event of Default, Indenture Event of Default or Event of Loss has occurred and
is continuing.
(h) A list of the operative documents relating to the Lease is set
forth on ' Schedule 3 (such documents, together with the Lease and the Notes
collectively referred to herein as the "Lease Transaction Documents"). Lease
Transaction Documents which Seller does not have a copy of are listed on
Schedule 4. The Beneficial Interest and Lease Transaction Documents constitute
all of the assets and liabilities of the Corporation. The Corporation owns good
and marketable title to the Beneficial Interest, free and clear of any and all
pledges, security interest, liens, or other encumbrances whatsoever, other than
liens for current taxes, assessments or governmental charges or levies not yet
due, liens created by the Transaction Documents or liens created or incurred by
Lessee. Each of Seller and the Corporation have fully performed all of its
respective obligations under the Lease Transaction Documents to which it is a
party in accordance with their respective terms.
(i) Assuming the accuracy of the representations and warranties of
Buyer set forth in Section 6 hereof, the execution, delivery and performance by
Seller hereof will not violate any provision of any law, any order of any court
or other agency of government, the Certificate of Incorporation or By-laws of
Seller or the Corporation, respectively, or any judgment, award or decree, or
any indenture or any agreement or other instrument to which Seller or the
Corporation, respectively, is a party or by which it or any of its properties or
assets is bound, or result in a breach of or constitute a default under
agreement to which Seller or the Corporation, respectively, is a party or by
which it is bound.
(j) The Corporation has no material liabilities or obligations of
any nature whatsoever, absolute or contingent, to any officer, consultant,
director, employee, contractor, shareholder, or agent of the Corporation or of
the Seller except as provided in the Lease Transaction Documents, and to the
extent such obligations or liabilities exist and are required to be satisfied
prior to the Closing Date, they have been paid or satisfied in full.
(k) There are no actions, suits or proceedings pending or, to the
knowledge of Seller, threatened against Seller or the Corporation, or in
connection with the Lease, the Beneficial Interest, the Undivided Interest, the
Facility or any Lease Transaction Documents, before any court or governmental
authority, that if determined adversely would have a material adverse effect on
the property or financial condition of the Seller or an adverse effect on the
property or financial condition of the Corporation or that would prevent or
hinder the consummation of the transactions contemplated by this Agreement.
(1) NOTWITHSTANDING ANY OTHER PROVISION CONTAINED HEREIN TO THE
CONTRARY, SELLER EXPRESSLY DISCLAIMS, AND SHALL NOT BE DEEMED TO HAVE MADE, ANY
REPRESENTATION, WARRANTY OR AGREEMENT, EXPRESS OR IMPLIED, AS TO CONDITION,
VALUE, DESIGN, OPERATION, MERCHANTABILITY, COMPLIANCE WITH SPECIFICATIONS,
CONSTRUCTION, PERFORMANCE, OR FITNESS FOR USE OF THE FACILITY OR ANY PART
THEREOF (INCLUDING FITNESS FOR A PARTICULAR PURPOSE), AS TO THE ABSENCE OF ANY
INFRINGEMENT OF ANY PATENT, TRADEMARK OR COPYRIGHT, AS TO THE ABSENCE OF
OBLIGATIONS WITH RESPECT TO THE FACILITY OR ANY PART THEREOF BASED ON STRICT
LIABILITY IN TORT, OR AS TO THE QUALITY OF THE MATERIAL OR WORKMANSHIP OF THE
FACILITY OR ANY PART THEREOF OR ANY OTHER REPRESENTATION, WARRANTY OR AGREEMENT
WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE FACILITY OR ANY PART
THEREOF.
(m) Seller has not directly or indirectly offered any security for
sale to, or solicited any offer to acquire any such security from, or sold any
such security to, any person in violation of the registration provisions of the
Securities Act of 1933 (as amended, the "Securities Act"), and Seller has not
taken any action which would subject any such interest to the registration
requirements of Section 5 thereof, and Seller will not directly or indirectly
make any such offer, solicitation or sale in violation of such provisions of the
Securities Act; provided, however, that the foregoing shall not be deemed to
impose on Seller any responsibility with respect to any such offer, sale or
solicitation by or on behalf of Buyer.
6. Representations and Warranties of Buyer. Buyer hereby represents and
warrants to Seller, each of which shall survive the Closing, as follows:
(a) Buyer is a business trust duly organized and validly existing
and in good standing under the laws of the state of its formation and has all
requisite power and authority to own, lease and operate its properties, to carry
on its business as now being conducted, and to consummate the transactions
contemplated hereunder.
(b) Assuming the accuracy of the representations and warranties of
Seller set forth in Section 5 hereof, the execution, delivery and performance by
Buyer hereof will not violate any provision of any law, any order of any court
or other agency of government, the trust agreement or other formation documents
of Buyer, or any judgment, award or decree, or any indenture or any agreement or
other instrument to which Buyer is a party or by which it or any of its
properties or assets is bound, or result in a breach of or constitute a default
under any agreement to which Buyer is a party or by which it is bound.
(c) This Agreement has been duly and validly authorized, executed,
and delivered by Buyer and constitutes a legal, valid and binding obligation of
Buyer, enforceable in accordance with its terms, except as limited by applicable
bankruptcy, insolvency, moratorium, fraudulent conveyance, and other laws
affecting the rights and remedies of creditors.
(d) There is no action, suit or proceeding pending or, to the
knowledge of Buyer, threatened against Buyer before any court or governmental
authority.
(e) Buyer is not intending to purchase and will not purchase the
Stock with the assets of an employee benefit plan (or its related trust) as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended from time to time, or with the assets of any plan (or related trust)
as defined in Section 4975(e) (1) of the Code.
(f) Buyer is acquiring, and will acquire, the Stock for its own
account for investment and not with a view toward, or for sale, resale or other
transfer in connection with, any distribution thereof. Buyer understands and
agrees that sale, resale, transfer or other distribution of the Stock or any
portion thereof or beneficial interest therein may only be made in compliance
with the Securities Act and other applicable laws.
(g) Buyer has not directly or indirectly offered any security for
sale to, or solicited any offer to acquire any such security from, or sold any
such security to, any person in violation of the registration provisions of the
Securities Act, and Buyer has not taken any action which would subject any such
interest to the registration requirements of Section 5 thereof, and Buyer will
not directly or indirectly make any such offer, solicitation or sale in
violation of such provisions of the Securities Act; Provided, however, that the
foregoing shall not be deemed to impose on Buyer any responsibility with respect
to any such offer, sale or solicitation by or on behalf of Seller.
7. Certain Obligations.
(a) Except as otherwise provided in Section 8 hereof, if the
transactions contemplated hereby are consummated and Buyer or the Corporation
shall receive any amount under the Lease Transaction Documents or otherwise
relating to the transactions contemplated thereby to which Seller is properly
entitled as indemnitee or otherwise with respect to the period on or prior to
the Closing on the Closing Date ("Prior Claims"), Buyer or the Corporation shall
promptly remit such amount to Seller (together with, to the extent not paid over
within ten business days after receipt of such payment and determination that
Seller is entitled to the same, interest at a rate per annum equal to the Late
Payment Rate from such date to the date of payment to Seller) and until so
delivered to Seller any such amount shall be held in trust for the benefit of
Seller. Except as otherwise provided in Section 8 hereof, if the transactions
contemplated hereby are consummated and Seller shall receive any amount relating
the Lease Transaction Documents or otherwise relating to the transactions
contemplated thereby (other than any amount received in respect of a Prior
Claim) to which Buyer or the Corporation is entitled thereunder with respect to
the period after the Closing on the Closing Date, Seller shall promptly upon
receipt of such payment remit such amount to the Corporation or Buyer (together
with, to the extent not paid over within ten business days after receipt of such
payment and the determination that Buyer or the Corporation is entitled to the
same, interest at the Late Payment Rate from such date to the date of payment to
Buyer or the Corporation), and until so delivered to the Buyer or the
Corporation any such amount shall be held in trust by Seller for the benefit of
the Buyer or the Corporation, as the case may be.
(b) Buyer shall pay, and hereby assumes the obligations of the
Corporation (and of Xxxx Lease Finance Corporation as guarantor of certain of
the obligations of the Corporation) pursuant to that certain Settlement
Agreement dated September 30, 1996 between the Corporation and the Lessee,
including the obligations to make the payments referred to in Sections 7 and 8
thereof if and to the extent such payments are due.
(c) Buyer shall cause the Corporation to comply with its obligations
under and shall not take any action in violation of Sections 3(b), 12(b), 12(c)
and 19(f) of the Financing Agreement, Sections 12.12, 12.13 and 4.01 of the
Indenture or under the Trust Agreement without the prior written consent of
Seller and shall not otherwise take any action or permit any action to be taken
which would trigger liability under Xxxx Lease Finance Corporation's guaranty of
the obligations of the Corporation.
8. Certain Tax Matters.
(a) Buyer and Seller recognize and agree that as between themselves, for
purposes of federal, state and local tax laws only, (i) Seller will, if the
transactions contemplated hereby are consummated, continue to be entitled to all
benefits accrued and all rights vested, and shall, as between the parties to
this Agreement, remain liable for all tax obligations incurred by the
Corporation of any nature whatsoever, in each case with respect to the period
ending as of the time of Closing on the Closing Date (the "Pre-Closing Period"),
including without limitation rights to indemnification by Lessee for taxes
relating to such Pre-Closing Period under the Lease Transaction Documents; and
(ii) if the transactions contemplated hereby are consummated, the Corporation
and Buyer shall be entitled, respectively, to all benefits accrued and all
rights vested and shall, as between the parties to this Agreement, be liable for
all tax obligations incurred by the Corporation, in each case with respect to
the period after the PreClosing Period (the "Post-Closing Period"), and shall be
entitled, without limitation, to all rights, if any, to indemnification for
taxes relating to such Post-Closing Period under the Lease Transaction
Documents. Buyer and Seller agree that, in all matters relating to any such
rights and obligations, each shall act in a manner consistent with, and not in
derogation of, any rights of Seller, Buyer or the Corporation hereunder or under
the Lease Transaction Documents with respect to the Pre-Closing Period or the
Post-Closing Period, as the case may be, and Buyer shall, with respect to the
rights of Seller, cause the Corporation to act in a manner consistent with the
foregoing. Any refunds, credits or other tax savings with respect to taxes
properly attributed to the Pre-Closing Period shall be the property of the
Seller and shall be paid over to the Seller by the Buyer or the Corporation.
(b) Neither Seller nor the Buyer represents or warrants to the other
party, and no inference shall be drawn from any provisions hereof that either
party represents or warrants to the other party, that the transactions
contemplated by the Lease Transaction Documents will have any particular federal
or state income tax or other tax consequences.
(c) Seller shall have the exclusive obligation and authority to file
or cause to be filed all U.S. federal and state tax returns that are required to
be filed with respect to the income, properties and operation of the Corporation
or predecessors thereto, and pay any tax shown to be due thereon, for all
taxable years or other taxable period ending prior to the Closing on the Closing
Date. Buyer shall have the exclusive obligation and authority to file or cause
to be filed all tax returns that are required to be filed with respect to the
income, properties, and operation of the Corporation or any successor thereto,
and pay any tax shown to be due thereon, for any taxable year or other taxable
period after the Closing on the Closing Date. Buyer and Seller agree that (i)
the sale and purchase of the Stock pursuant to this Agreement will be reported
for all income tax purposes as a sale by the Seller and a purchase by the Buyer
of all of the issued and outstanding common stock of the Corporation for the
Purchase Price, and consistent with the Corporation being the owner of the
Undivided Interest on the Closing Date, and (ii) that neither Seller nor Buyer
shall make an election, or request that the other party make an election,
pursuant to Section 338(h) (10) of the Code or otherwise, to treat such
transaction as a sale by the Corporation of any or all of its assets, or to
treat the Corporation as not owning the Undivided Interest on the Closing Date.
(d) Seller and its duly appointed representative shall have the
exclusive authority to control any audit or examination by any taxing authority,
exercise control over the contest rights of the Lessee set forth in the Lease
Transaction Documents, initiate any claim for refunds, amend any tax return, and
accounts, resolve and defend against any assessment for additional taxes, notice
of tax deficiency or other adjustment of taxes of or relation to any liability
of the Corporation for taxes for any Pre-Closing Period, and Seller shall be
entitled to any tax refund relating to any PreClosing Period. Buyer and its duly
appointed representative shall have the exclusive authority to control any audit
or examination by any taxing authority, exercise control over the contest rights
of the Lessee set forth in the Lease Transaction Documents, initiate any claim
for refunds, amend any tax return, and accounts, resolve and defend against any
assessment for additional taxes, notice of tax deficiency or other adjustment of
taxes of or relation to any liability of the Corporation for taxes for any
Post-Closing Periods.
(e) Following the Closing Date, Buyer shall make available to Seller
such information and data in the custody of Buyer or the Corporation which
relates to the Corporation and is required by Seller in order to discharge its
obligations hereunder with respect to completing tax returns relating to the
Corporation for the Pre-Closing Period. Buyer and Seller shall also provide each
other with such assistance as may reasonably be requested by either of them in
connection with the preparation of any other tax return or report, any audit or
other examination by any taxing authority, or any judicial or administrative
proceedings relating to any tax liability. The party requesting assistance
hereunder shall reimburse the other for reasonable out-of-pocket expenses
incurred in providing such assistance.
9. Indemnification.
(a) Seller hereby agrees and undertakes to indemnify and hold Buyer, its
officers, directors, shareholders, employees, representatives and agents
(hereinafter the "Buyer Indemnitees") harmless from and against, and will
reimburse each Buyer Indemnitee on demand for, any payment, loss, cost or
expense (including, without limitation, reasonable counsel fees and expenses)
made or incurred by or asserted against any such Buyer Indemnitee at any time
arising out of (i) any and all liabilities, obligations, claims, damages or
deficiency resulting from any omission, misrepresentation, breach of a
representation or warranty, or failure to perform any term, provision, covenant
or agreement on the part of Seller contained in this Agreement, or from any
misrepresentation in, or omission, from or act or failure to act in connection
with, any certificate, document, statement or other instrument furnished or to
be furnished to Buyer pursuant to this Agreement; or (ii) any and all
liabilities, obligations, claims, damage or deficiency arising out of or related
to any violation, omission, act or failure to act, by the Corporation for the
PreClosing Period.
(b) Buyer hereby agrees and undertakes to indemnify and hold Seller,
its officers, directors, shareholders, employees, representatives and agents
("Seller's Indemnitees") harmless from and against, and will reimburse each
Seller's Indemnitee on demand for, any payment, loss, cost or expense
(including, without limitation, reasonable counsel fees and expenses) made or
incurred by or asserted against any such Seller Indemnitee at any time arising
out of (i) any and all liabilities, obligations, claims, damages or deficiency
resulting from any omission, misrepresentation, breach of a representation or
warranty, or failure to perform any term, provision, covenant or agreement on
the part of Buyer contained in this Agreement, or from any misrepresentation in,
or omission, from or act or failure to act in connection with, any certificate,
document, statement or other instrument furnished or to be furnished to Seller
pursuant to this Agreement; or (ii) any and all liabilities, obligations,
claims, damage or deficiency arising out of the Corporation's performance or
failure to perform or acts or events relating to the PostClosing Period (except
to the extent attributable to acts of or omissions by the Corporation, or events
which occurred, in the PreClosing Period).
(c) The obligations to indemnify and hold harmless pursuant to this
Section 9 shall survive the consummation of the transactions contemplated by
this Agreement.
10. Miscellaneous.
(a) Each of the parties represents and warrants to the other party
that has not engaged a broker in connection with the transactions contemplated
by this Agreement, and no person or entity engaged by such party has any valid
claim against any of the parties hereto for a brokerage commission, finders fee,
or other like payment.
(b) Except as otherwise stated in this Agreement, each party agrees
to be responsible for its own legal expenses and all other expenses incurred by
such party in connection with the negotiation, preparation and execution of this
Agreement.
(c) This Agreement constitutes the entire understanding of the
parties hereto with respect to the subject matter hereof, and supersedes all
other agreements, including without limitation that letter agreement dated as of
April 17, 1997 between Xxxx Lease Finance Corporation and Tropic Communications
Inc. and no provision hereof shall be amended or waived in the absence of a
writing duly executed by the parties hereto.
The provisions of this Agreement are severable.
(d) The section headings contained in this Agreement are for
reference only and shall not affect in any way the meaning or interpretation of
this Agreement.
(e) Each notice required or permitted hereunder shall be in writing
and shall be deemed to have been duly given if delivered or mailed (registered
or certified mail, postage prepaid, return receipt requested), to the parties at
the following addresses:
If to Seller: Xxxx Credit Corporation
Courier: 0000 Xxxxxxxx Xxxx Xxxxxx, Xxxx 00000
Attn: Operations
Mail: P. 0. Xxx 000 Xxxxxx, Xxxx 00000
Attn: Operations
If to Buyer: Duluth Master Trust
Xxxxx 000
0000 Xxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Attn: Co-Trustees
All such notices shall be deemed to have been given upon receipt, as established
in the case of mailed notice by the return receipt.
(f) This Agreement shall be governed by and construed in accordance
with the laws of the State of Illinois, without regard to its conflicts of law
rules.
(g) This Agreement may be executed in several counterparts, each of
which shall be deemed an original, but all of which will constitute one and the
same instrument.
(h) This Agreement shall not be assignable by either party without
the express written consent of the other party. Subject to the immediately
preceding sentence, this Agreement shall be binding upon and inure to the
benefit of the successors and assigns of the parties hereto.
(i) Except for the notice of name change and address for contacts to
be delivered by the Seller to the Owner Trustee simultaneously with the
consummation of the transactions contemplated herein, Buyer and Seller agree
that (A) during the period prior to September 1, 1997 to hold confidential in
accordance with this paragraph (i) the consummation of the transactions
contemplated herein and the transfer of the Stock to Buyer and (B) with respect
to any information delivered pursuant to this Agreement, and any other
information obtained by Buyer or Seller as a result of any examination or
discussion contemplated under this Agreement, to the extent that such
information has not theretofore otherwise been disclosed in such a manner as to
render such information generally available to the public and that such
information has been clearly marked or labeled as being confidential
information, each party hereto will employ reasonable procedures designed to
maintain the confidential nature of the information therein contained, provided,
that anything herein contained to the contrary notwithstanding, each party
hereto may disclose or disseminate such information to: (a) its Affiliates and
its and their directors, employees, agents, attorneys and accountants who would
ordinarily have access to such information in the normal course of the
performance of their duties; (b) such third parties as each party hereto may, in
its discretion, deem reasonably necessary or desirable in connection with or in
response to (i) compliance with any law, ordinance or governmental order,
regulation, rule, policy, subpoena, investigation, regulatory authority
(including, without limitation the National Association of Insurance
Commissioners) request or requests, or (ii) any order, decree, judgment,
subpoena, notice of discovery or similar ruling or pleading issued, filed,
served or purported on its face to be issued, filed or served (x) by or under
authority of any court, tribunal, arbitration board of any governmental agency,
commission, authority, board or similar entity or (y) in connection with any
proceeding, case or matter pending (or on its face purported to be pending)
before any court, tribunal, arbitration board or any other governmental
authority; (c) to any prospective successor or assign which has agreed with such
party that, upon disclosure of such information, such prospective successor or
assign shall be bound by the provisions hereof; (d) any Person in order to
enforce the rights of any party hereto under this Agreement; and (e) any Person
if such information is publicly available or readily ascertainable from public
sources; and, provided further, that no party hereto shall be liable to any
Person for damages for any failure by such party to comply with the provisions
of this paragraph, except in any case involving gross negligence, willful
misconduct or fraudulent misconduct.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
Seller and by Buyer as the date first above written.
XXXX CREDIT CORPORATION,
as Seller
By:
Name:
Title:
DULUTH MASTER TRUST,
as Buyer
By:
Name:
Title:
