Exhibit 10.1
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EXECUTION COPY
ASSET SALE AGREEMENT
AGREEMENT made this 3rd day of June, 2003, by and among
XXXXXXX XXXXX SCHOOL, INC., a New York corporation having its
principal place of business at 000 Xxx Xxxxxx Xxxx, Xxxxx 0000,
Xxxxxx, Xxx Xxxx 00000 ("Seller"), TOUCHSTONE APPLIED SCIENCE
ASSOCIATES, INC., a Delaware corporation having its principal
place of business at 0 Xxxxxxxxxxxx Xxxxxxx, Xxxxxxxx, Xxx Xxxx
00000 ("TASA"), TASA EDUCATIONAL SERVICES CORPORATION, a New
York corporation having its principal place of business at 0
Xxxxxxxxxxxx Xxxxxxx, Xxxxxxxx, Xxx Xxxx 00000 ("TESC" with
TASA, the "Affiliates"), FAITH A. TAKES, an individual residing
at 0000 Xxxx Xxxx, Xxxxxxxxxxx, XX 00000 ("Ms. Takes"), and
EMPIRE EDUCATION CORPORATION, a Delaware corporation having its
principal place of business at c/o Xxxxxxx Xxxxx School, Inc.,
000 Xxx Xxxxxx Xxxx, Xxxxx 0000, Xxxxxx, Xxx Xxxx 00000
("Purchaser").
W I T N E S S E T H:
WHEREAS, the Seller is engaged in the business of
maintaining and operating a post-secondary, degree granting
school ("Institution") in the State of New York and an
additional location of such Institution in the Commonwealth of
Massachusetts (collectively, the "Business"); and
WHEREAS, Purchaser desires to purchase from the Seller and
the Seller desires to sell to the Purchaser, the Business and
substantially all of its assets, upon the terms and conditions
stated herein.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained in this Agreement, the parties hereby
agree as follows:
1. SALE AND TRANSFER OF ASSETS.
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(a) On the terms and subject to the conditions of this
Agreement, except as set forth in subparagraph (b) below, the
Seller shall sell, assign, transfer and deliver to the Purchaser
on the Closing Date, as defined in Paragraph "13" hereof, and the
Purchaser shall purchase from Seller, substantially all of the
assets, properties and rights of Seller existing at the Closing
Date, free and clear of all liens and encumbrances except as set
forth on Schedule 1(a) (such assets, properties and rights to be
sold herein shall be referred to as the "Assets"). Without
limiting the foregoing, the Assets shall mean all assets of
Seller used in the operation of the Business, including, without
limitation, cash on hand (except as provided in Paragraph "2");
all tangible and intangible assets shown on Seller's January 31,
2003 balance sheet (excluding goodwill, if any); accounts;
accounts receivable; pre-paid expenses; furniture and fixtures;
machinery and equipment; the rights of Seller, if any, to the
mortgage on 000 Xxxxx Xxxxxx, Xxxxxx, Xxx Xxxx; catalogs
(including but not limited to all advertising and marketing
materials); books and records including all student records and
lists; mailing lists; real and personal property leases;
inventory in all forms; library materials; all intellectual
property and proprietary rights and interests (including but not
limited to curriculum, trademarks, tradenames, servicemarks,
copyrights, whether registered or applied for or at common law);
licenses and permits used in the operation of all locations of
the Business; and rights of Seller in the Business as currently
operating, including, without limitation, all internet domain
names and related registrations, the names of Seller "Xxxxxxx
Xxxxx School, Inc.", "Xxxxxxx Xxxxx Business School," and all
variations and derivatives thereof, and all contracts and
contract rights.
(b) Except as set forth on Schedule 1(b), Seller shall
provide such bills of sale, assignments and other transfer
documents necessary to sell, assign and transfer the Assets to
Purchaser in form reasonably acceptable to Purchaser and, if
applicable, suitable for filing or registration.
2. ASSUMPTION OF CERTAIN LIABILITIES.
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(a) Except as specifically set forth in subsection
2(b) hereof, Seller shall assign and Purchaser will assume
liabilities of Seller, including the following (collectively, the
"Assumed Liabilities"):
(i) Seller's note dated as of November 2, 1998,
in the original principal amount of $1,000,000.00 (the "Former
Xxxxxxx Xxxxx Note") payable to the former Xxxxxxx Xxxxx School,
Inc. ("Former Xxxxxxx Xxxxx") and now payable as a result of
dissolution of Former Xxxxxxx Xxxxx to the former shareholders of
Former Xxxxxxx Xxxxx ("Former MESI Shareholders") and any other
notes to Former MESI Shareholders (the "Other Former Xxxxxxx
Xxxxx Notes" with the Former Xxxxxxx Xxxxx Note, the "Former
Xxxxxxx Xxxxx Notes";
(ii) all liabilities of each of the
Affiliates (A) to the Former MESI Shareholders and the Former
Xxxxxxx Xxxxx and guarantors of Former Xxxxxxx Xxxxx under the
Asset Purchase Agreement between Former Xxxxxxx Xxxxx and Seller
dated as of November 2, 1998 (the "Asset Purchase Agreement");
and (B) claimed in that certain action by Ms. Takes and Former
Xxxxxxx Xxxxx against Seller and the Affiliates in Supreme Court,
Albany County (the "Takes Litigation");
(iii) all accounts payable of Seller and all
other liabilities on the (A) October 31, 2002 balance sheet, (B)
January 31, 2003 trial balance of Seller and (C) as incurred or
accrued thereafter in the ordinary course of business, except as
specifically listed in subparagraph (b);
(iv) any additional liabilities of the Seller
directly relating to the operations of Seller and known to, or
arising from, or in connection with actions of, Ms. Takes or
under her authority, including, but not limited to the Section
125 Plan,
(v) all accrued and unpaid employment wages
and benefits, through the Closing Date and any COBRA obligations
related to Seller and its employees;
(vi) the $75,000 judgment entered against
Seller in favor of Ms. Takes in connection with the Takes
Litigation;
(vii) all liabilities that originate or result
from the (A) U. S. Department of Education ("USDOE")
recertification of the Institution and USDOE review of the change
of ownership, (B) currently pending USDOE program review audits,
(C) currently pending referral to the Administrative Actions and
Appeals Division; (D) pending New York State Department of Health
audit; (E) any other regulatory matters, known to Seller, Ms.
Takes or Purchaser as of the Closing Date or arising from or in
connection with compliance audits or any other regulatory reviews
or audits conducted on or before the Closing Date, including, but
not limited to the USDOE, any state educational regulatory body
or any accrediting body; and (F) any other regulatory matters
known as of the Closing Date to Ms. Takes or Purchaser, or
Seller, or arising from or in connection with the period of
ownership and operation of the Institution by either of Former
Xxxxxxx Xxxxx or Purchaser.
(b) Assumed Liabilities shall not include:
(i) Any obligation or liability of Seller with
respect to income taxes and penalties and interest thereon, the
TASA 401(k) Pension and Profit Sharing Plan (the "TASA Plan")
(except the obligation to remit to the taxing authorities and
trustees of the TASA Plan any monies related to payroll taxes and
benefits not yet paid or remitted as of Closing and monies
collected or withheld from participants through the Closing
Date);
(ii) Any intercompany obligations among Seller,
TASA and/or TESC, including, but not limited to those set forth
on the Closing Balance Sheet, but specifically excepting payments
for employee benefits owed by Seller to TASA and/or TESC, to the
extent provided elsewhere in this Agreement;
(iii) Any obligation or liability involving a
regulatory matter that was not known to Ms. Takes, Purchaser and
Seller as of the Closing Date and which arises from or in
connection with an audit or review or any findings noted therein,
other than those audits and reviews described in Paragraph
"2(a)(vii) hereof, conducted after the Closing Date; provided,
however, only that portion of the obligation or liability that is
allocable to the period between November 2, 1998 and the Closing
Date shall be excluded from Assumed Liabilities;
(c) Purchaser and Ms.Takes each specifically
acknowledge that all liabilities of the Former Xxxxxxx Xxxxx
401(k) Plan shall be liabilities of Purchaser or Ms. Takes.
(d) Adjustments for actual cash accruals as of the
Closing Date will be made for timing differences related to sales
taxes, payroll, payroll taxes, employee vacations and health
benefits, Section 125 Flexible Benefits Plan contributions and
401(k) contributions. Purchaser shall not accept any
withholdings for the TASA Plan from employees of Seller from and
after the Closing Date. Seller shall be obligated for all
accrued and unpaid employment wages and benefits through the
Closing Date; however cash on hand of Seller, or funds accrued or
held in trust for same shall be used to pay same due to timing of
payroll, withholdings and filing dates of taxes due. To the
extent sufficient cash on hand is not available at Closing,
Purchaser shall pay same to Seller at Closing.
(e) Seller and the Affiliates shall indemnify
Purchaser for any liability described in Paragraph "2(b) hereof,
pursuant to the provisions of Paragraph "17" hereof.
(f) Purchaser shall indemnify Seller and the
Affiliates for any liability described in Paragraph "2(a)"
hereof, pursuant to the provisions of Paragraph "17" hereof.
(g) Seller and Purchaser agree that the contracts set
forth on Schedule 2(g) annexed hereto and made a part hereof are
Material Contracts which are necessary for the operation of the
Business and Purchaser shall assume all such Material Contracts.
In addition, Purchaser shall assume all other contracts and
commitments, all indentures, mortgages, security agreements, real
and personal property, leases, loans and credit agreements, and
all other agreements (including but not limited to any supply
contracts, contracts for the purchase or sale of products or
services, and agreements with students or staff, but excluding
pension, profit sharing or retirement plans of Seller except as
specifically provided elsewhere in this Agreement), imposing any
obligation on Seller or to which any of its Assets are subject,
the payments under which are reflected in the "Financial
Statements" as defined in Paragraph "6(e)" hereof, or which
were incurred in the ordinary course of business of Seller and of
which Ms. Takes has knowledge or should have knowledge as a
result of her position as President and Chief Executive Officer
of Seller.
3. CONSIDERATION.
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(a) In consideration of the sale and purchase of the
Assets hereunder, assumption of the Assumed Liabilities, and the
restrictive covenant of Seller as set forth in Paragraph "14"
hereof, Purchaser shall pay Seller the following amounts
(collectively, the "Purchase Price"):
(i) On the Closing Date, Fifty Thousand and
00/100 Dollars ($50,000.00); and
(ii) On the "Sale Date", an amount equal to
"Seller's Portion" of the "Net Proceeds from Sale" as such
terms are defined in Paragraph "4(b)(iii)" below.
(b) Purchaser and Seller agree the Purchase Price
shall be allocated to net assets of Seller sold and transferred
to Purchaser up to the amount as shown on the Closing Balance
Sheet and thereafter shall be allocated to the covenant of Seller
not-to-compete pursuant to Paragraph "14" hereof. The parties
agree to cooperate in good faith and complete within the time
periods required at law, Internal Revenue Service Form 8594 based
upon the above allocation and the Closing Balance Sheet (as
defined in Paragraph "10" hereof).
4. PAYMENT OF PURCHASE PRICE. Purchase Price shall be
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paid as follows:
(a) An amount equal to FIFTY THOUSAND DOLLARS
($50,000.00), payable at Closing by certified check or wire
transfer to the account of Seller.
(b) (i) On the Sale Date, all Net Proceeds of Sale,
regardless of form (e.g., cash, cash equivalents, stock
certificates) by deposit on the Sale Date with the "Escrow
Agent" as defined in subparagraph "(vi)" hereof.
(ii) Definitions:
"Acquiring Person" shall mean any and all
persons or entities acquiring an interest in the Institution
through a Sale or Transfer.
"Balance Sheet Liabilities" shall mean
liabilities of Purchaser as are reflected on (i) the immediately
prior audited balance sheet of Purchaser as adjusted for
liabilities incurred and paid in the ordinary course of business
from the date of the audited balance sheet through the Sale Date;
or, if available and in lieu of (i), (ii) an audited closing
balance sheet of Purchaser prepared in connection with the Sale
or Transfer to an Acquiring Person.
"Net Proceeds of Sale" shall be defined as the
"net total consideration or remuneration", less usual and
customary expenses of sale.
"Net total consideration or remuneration" shall
be defined as (i) total consideration or remuneration, including
the value of all liabilities assumed in connection with a Sale or
Transfer, payable or paid by an Acquiring Person to any and all
Purchaser Parties, regardless of form of payment, structure of
transaction or allocation of consideration (e.g., payments for
stock, assets, royalties, real property, leases, earn outs,
consulting services, non-competition agreement), minus (ii) all
"Balance Sheet Liabilities" other than Personal Liabilities,
regardless of whether such Balance Sheet Liabilities were assumed
by the Acquiring Person. For example and as illustrations only, assume
a sale with total consideration of $5M at a time when the Purchaser
has $3M of Balance Sheet Liabilities and $1M of Personal Liabilities:
1. Price is $5M ($3M cash plus $2M Balance Sheet Liabilities):
Net total consideration or remuneration is ($3M + $2M) - $3M = $2M.
2. Price is $5M cash; no liabilities assumed:
Net total consideration or remuneration is $5M - $3M = $2M
3. Price is $1M cash and all liabilities are assumed:
Net total consideration or remuneration is ($1M +[$3 + $1
Personal Liab.]) - $3M = $2M.
"Permitted Change" for purposes of subparagraph
(iv) below, shall be defined as the establishment of locations or
branches of Purchaser or any affiliate of Purchaser or Ms. Takes
(i) outside a twenty-five mile radius of each of the Latham and
Pittsfield campuses or (ii) at or within a twenty-five mile
radius of either of the Latham and Pittsfield campuses if not
offering any competitive curriculum, or programs with those
offered at either campus at anytime during the term of this
Agreement.
"Personal Liabilities" shall mean any and all
Balance Sheet Liabilities of Purchaser as of the Sale Date to (i)
any Former Xxxxxxx Xxxxx Shareholder (including, but not limited
to, the Former Xxxxxxx Xxxxx Notes, settlement with Xxxxx
Xxxxxxx, if any, and $75,000 judgment in favor of Ms. Takes in
the Takes Litigation), and (ii) any shareholder, officer or
director of Purchaser or Former Xxxxxxx Xxxxx, or affiliate of
either; or by any relative or personal friend of any of the
foregoing, unless such liability arises from a loan by any such
person after the date hereof to Purchaser for a reasonable
business purpose on commercially reasonable and customary terms
and conditions and which is to be amortized over a period not to
exceed five (5) years. It is understood and agreed that in
connection with the First Day Balance Sheet, Purchaser
contemplates the inclusion as liabilities on such First Day
Balance Sheet, approximately $649,000 of obligations under Former
Xxxxxxx Xxxxx Notes and approximately $60,000 relating to notes
of Seller to Ms. Takes which were the subject of the judgment in
the Takes Litigation. It is intended that regardless of the form
of restructure by Purchaser of any and all Personal Liabilities,
on the Sale Date, to the extent Purchaser remains obligated for
payments arising from or in connection with any such restructured
Personal Liabilities, they shall continue to be deemed Personal
Liabilities for purposes of the calculation of net total
consideration or remuneration (e.g., if Purchaser obtains a third
party loan in payment of such liabilities).
"Purchaser Parties" shall mean any and all of
Purchaser, Ms. Takes, any other owner of Purchaser, beneficial or
otherwise, or employee, director or officer of Purchaser.
"Sale Date" shall mean the date of closing of a
Sale or Transfer.
"Sale or Transfer" shall mean any sale or
transfer involving a change of control which shall be deemed to
have occurred upon the (i) acquisition of beneficial ownership of
fifty (50%) percent or more of the then outstanding shares of
the Purchaser's capital stock; (ii) approval by the stockholders
of Purchaser of a reorganization, share exchange, merger or
consolidation with respect to which, in any such case, the
persons who were the stockholders of Purchaser immediately prior
to such event do not, immediately thereafter, own more than fifty
(50%) percent of the combined voting power entitled to vote;
(iii) liquidation or dissolution of Purchaser; (iv) a sale of all
or substantially all of the assets of Purchaser; or (v) filing of
a change of ownership application with the U.S. Department of
Education ("USDOE"). On or before June 1, 2010, the
Institution shall be listed for sale with reputable industry
agents and marketed at a multiple of earnings consistent with the
industry norm. From and after such date, Purchaser and Ms.
Takes shall make continuing good faith best efforts to conclude
such sale. The terms of each listing of sale of the Institution
and copies of all offers received, inclusive of any appraisals or
valuations by any party, and draft and final closing documents
for the sale shall be delivered to Seller when received by
Purchaser or Ms. Takes. In any instance in which value or price
is being determined by fair market value and particularly, but
not limited to the case of any of transaction described in items
(ii) or (iii) above, Purchaser shall provide not less than three
(3) weeks prior to closing an independent appraisal. Seller and
Purchaser shall jointly agree on the appraiser to perform the
valuation and each of Seller and Purchaser shall receive a copy
of the appraisal immediately upon its issuance.
"Seller" for purposes of this Paragraph "4",
shall mean Seller, any affiliate of Seller, the Affiliates, or
any successor to any Affiliate.
"Seller's Portion" shall mean twenty-five (25%)
percent.
(iii) No Sale or Transfer shall be made in
which any of Seller's Portion of Net Proceeds of Sale is not paid
in full on the Sale Date, unless on or prior to the Sale Date,
the Acquiring Person or Purchaser has provided to Seller such
security for such unpaid amount as Seller believes reasonable and
Seller reasonably determines that such Acquiring Person has the
financial ability and resources to insure payment thereof to
Seller. Seller shall make its determination as to the
reasonableness of the security offered and financial ability of
the Acquiring Person within three (3) business days of being
provided with information reasonably sufficient to make such
determination.
(iv) Calculation of Seller's Portion of Net
Proceeds of Sale is intended to be limited to consideration and
remuneration allocable to the Institution in its current
configuration assuming no institution other than through a
Permitted Change is established by Purchaser, Ms. Takes, or any
affiliate of either from the date hereof through and including
the Sale Date, i.e., a New York-based main campus, USDOE OPEID
No. 022195 - 01, currently located in Latham, New York, and a
Massachusetts branch OPEID No. 022195 - 02, currently located in
Pittsfield. If a "Permitted Change" in the configuration of
the Institution occurs between the Closing Date and Sale Date,
the value of the Institution as a whole as configured on the Sale
Date shall be determined by an independent fair market value
appraisal of Purchaser, by an appraiser mutually agreed upon by
each of Purchaser and Seller, and Net Proceeds of Sale shall be
allocated to each such location on a pari passu basis in
accordance with the number of students at each location of
Purchaser at the Sale Date, except that in the calculation of Net
Proceeds of sale, liabilities which were specifically incurred in
connection with a particular campus shall be allocable to such
campus. If a change in the configuration is not a Permitted
Change, Net Proceeds of Sale shall be allocable in total to the
Latham and Pittsfield locations.
(vi) Any balance of the Seller's Portion of the
Net Proceeds of Sale which is not paid on the Sale Date shall be
paid thereafter by Purchaser Parties to Seller in the same
amount, including any interest, late fees and penalties thereon,
and on the same terms and conditions as consideration received by
Purchaser Parties from the Sale or Transfer until Seller or the
Escrow Agent has received such balance of Seller's Portion of the
Net Proceeds of Sale. Any balance of Seller's Portion of Net
Proceeds of Sale, and interest thereon, shall be payable in full
by Purchaser Parties to Seller or the Escrow Agent, as the case
may be, on the date on which any further sale or transfer of the
Institution, or any portion thereof, by an Acquiring Person
occurs.
(vii) The parties agree that any funds or
other consideration payable to or to be deposited with the Escrow
Agent pursuant to this Agreement (collectively, the "Escrow
Amount") shall be deposited with counsel for Purchaser, as
Escrow Agent. The Escrow Agent shall hold the Escrow Amounts
pursuant to the terms and conditions of the Escrow Agreement
annexed hereto as Exhibit "A" (the "Escrow Agreement").
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5. SALES TAX. Purchaser and Seller agree to cooperate in
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complying with the requirements of New York law with respect to
the transfer of assets contemplated hereunder, including but not
limited to notice by Seller to the State of New York and payment
by Purchaser at Closing of any amount required in connection with
any sales tax obligations on the Assets.
6. REPRESENTATIONS OF SELLER. Seller makes the following
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representations and warranties to Purchaser, which shall be true
and correct on the date hereof and as of the Closing Date, except
as otherwise disclosed to Purchaser in writing and agreed to by
Purchaser; notwithstanding the foregoing, for purposes of these
representations and warranties and any indemnification by Seller
or the Affiliates for breaches thereof, Seller and the Affiliates
shall not be deemed to have misrepresented or breached if Ms.
Takes, individually, or as an officer, director, or employee of
Seller or the Affiliates, had or has any actual knowledge or
reasonably should have knowledge with respect to the subject
matter of any such representation and warranty which knowledge if
disclosed herein would make the statements of Seller or the
Affiliates true and not materially misleading:
(a) Seller is a corporation duly organized and
existing and in good standing under the laws of the State of New
York and is duly qualified to transact business in the State of
New York. Seller is a corporation duly qualified to do business
and in good standing as a foreign corporation under the laws of
the Commonwealth of Massachusetts. Seller has full power and
authority to perform its obligations as provided in this
Agreement. The execution and delivery by Seller of this
Agreement and the consummation of the transactions contemplated
herein have been duly authorized by all requisite corporate
action, and will not conflict with or breach any provision of any
agreement to which Seller is a party or by which it may be bound,
the Certificate of Incorporation or By-Laws of Seller.
(b) Except as set forth on Schedule "6(b)", Seller
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owns and holds and shall own and hold as of the Closing Date,
good and merchantable title, free and clear of any liens,
encumbrances, charges or assessments, to all of the Assets,
including, without limitation, those shown on its most recent
audited financial statements except (i) assets disposed of since
the date thereof in the ordinary course of business, (ii) liens
set forth on such financial statements and (iii) liens or other
encumbrances securing taxes which are not yet due and payable and
arising out of or incurred in the ordinary course of business.
The Assets constitute all of the assets of the Seller, TESC or
TASA necessary to operate the Business to the full extent of its
current operation.
(c) Except as disclosed on Schedule "6(c)", to the
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actual knowledge of Seller, Seller is not in breach of any
Material Contract, and no event which with notice or lapse of
time, or both, would constitute a breach thereof has occurred and
is continuing. Seller has delivered true and complete copies of
the Material Contracts not already in Ms. Takes' possession to
Purchaser.
(d) Except as disclosed on Schedule "6(d)" hereto,
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no officer of Seller, excepting Ms. Takes, has received any
notice of, and there are no actions, suits or proceedings pending
to which Seller is a party, and Seller has no knowledge of any
actions, suits or proceedings threatened, against Seller
affecting Seller, or the Business or any of the Assets to be
transferred under this Agreement, or which would prevent or
substantially hinder the consummation of the transactions
contemplated by this Agreement.
(e) Seller has delivered or shall deliver to Purchaser
prior to Closing:
(1) audited Financial Statements for the Years
Ended October 31, 1999, 2000, 2001 and 2002 with the Independent
Auditors Report (the "Audited Financial Statements") and
(2) management prepared trial balance for the 3-
month period ending January 31, 2003 (the "Management Financial
Statements");
(1) and (2) above being known hereinafter collectively as the
"Financial Statements". The Audited Financial Statements (A) are
true and correct in all material respects, and (B) fairly present
the financial positions and results of operations and cash flows
of Seller in accordance with generally accepted accounting
principles consistently applied, as at such dates and for the
years or periods then ended. The Management Financial Statements
to the actual knowledge of Seller (A) are true and correct in all
material respects and (B) fairly present the financial positions
and results of operations and cash flows of Seller as at such
date and for the period then ending.
(f) Seller carries insurance with reputable insurers
in respect of its Assets and the Business.
(g) Except as set forth on Schedule 6(g), to the
actual knowledge of Seller, from October 31, 2002 to the date of
this Agreement, (i) there has been no material adverse change in
the Assets or the financial condition or in the operations and
prospects of Seller or the Business from that shown in the
Audited Financial Statements for the Fiscal Year ended on such
date, except as may be shown in the Management Financial
Statements issued thereafter, (ii) no assets owned or leased by
the Seller or used in the Business have suffered any material
destruction or damage which is not reasonably insured or would
have a material adverse effect on the Assets; and (iii) the
Business has been conducted in the ordinary course, excepting
such actions necessary for the completion of the transactions
contemplated hereunder.
(h) Annexed hereto as Schedule "6(h)", is a list and
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description, true and correct in all material respects, of all
United States and foreign patent, trademark and trade name
registrations, unexpired as of the date hereof, all material
United States and foreign applications pending on said date for
any patent, trademark, trade name, or copyright registrations and
all material trademarks, trade names, label and other trade
rights in use on the date hereof, all of the foregoing being
owned, in whole or in part on said date by Seller and all
licenses granted by or to Seller relating to any of the preceding
categories.
(i) The furniture, fixtures and equipment of Seller
are, and will be on the Closing Date, transferred and sold "as
is" with no representation or warranty.
(j) Except as disclosed on Schedule "6(j)", all
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federal state, county, local and other taxes, including, without
limitation, income taxes, corporate franchise taxes, ad valorem
taxes, employment taxes and sales taxes due and payable by Seller
on or before the date of this Agreement (including any penalties
and interest thereon) have been paid, and all tax returns and
reports required to be filed with all such taxing authorities
have been filed when due or appropriate extensions as noted on
Schedule "6(j)" filed therefore (the "Returns"). The
provisions for taxes included in the Audited Financial Statements
are adequate for the payment of all accrued and unpaid taxes of
Seller. Seller has no outstanding or unsatisfied deficiency
assessments with respect to any taxes. All such returns are
true, complete and correct and in material compliance with all
applicable laws, rules and regulations related to such returns.
(k) Seller is not a party to any collective bargaining
agreement.
(l) No representation or warranty by Seller contained
in this Agreement (including the Schedules and Exhibits) nor any
written representation to be made or furnished hereafter by
Seller in connection with the transactions contemplated hereby,
contains or will contain any material error or misstatement of
material fact or omits or will omit to state any material fact
necessary to make the representations or statements contained
herein or therein not materially misleading.
(m) Except as disclosed on Schedule "6(m)", no consent
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or approval is required for the due execution, delivery and
performance by Seller of this Agreement, including the assignment
of any Material Contracts to Purchaser, except for consents which
have been duly and validly obtained by Seller and are now in full
force and effect and copies of which have been delivered to
Purchaser or the obtaining of which has been assumed in writing
by Purchaser.
(n) To the actual knowledge of Seller and except as
provided in Schedule "6(n)":
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(1) Seller has not used its Assets or the
Business for the storage, treatment, transportation, handling,
production or disposal of any Hazardous Substance (as defined
below).
(2) all environmental permits and licenses
required by the operations of Seller on the premises of the
Business have been obtained and are in full force and effect.
"Hazardous Substance" means, without limitation, any flammables,
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explosives, radon, radioactive materials, asbestos, urea
formaldehyde foam insulation, polychlorinated-biphenyl, petroleum
and petroleum based products or by-products, methane, hazardous
materials, medical waste, hazardous wastes, hazardous or toxic
substances or related materials, as defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980,
as amended (42 U.S.C. Sections 9601, et seq.), the Hazardous
Materials Transportation Act, as amended (49 U.S.C. Sections
1801, et seq.), the Toxic Substances Control Act, as amended (15
U.S.C. Sections 2601, et seq.), Articles 15 and 27 of the New
York State Environmental Conservation Law and in the regulations
promulgated thereunder. The term "Hazardous Substance" does not
include consumer products which are packaged for, stored, and
used by a consumer with reasonable care and for their intended
use.
(o) Except as disclosed on Schedule "6(o)" and
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specifically excepting from any representation or warranty, any
such plan or trust of Former Xxxxxxx Xxxxx, Seller does not have
and never has had any employee pension benefit plan or trust
which is covered by Title IV of ERISA. Each disclosed plan or
trust in which Seller participates either as sponsor or trustee,
is in compliance with the plan documents related thereto and all
federal and state laws, rules and regulations applicable thereto.
Seller is not a party to any multi-employer pension benefit plan
or trust as defined in ERISA. Schedule "6(o)" contains a true
and complete list of all other employee benefit plans and a
description of any other benefits provided by Seller to the
employees of the Business. Seller shall be responsible for and
shall take such steps as are required with respect to any
existing plan of Seller not assumed by Purchaser hereunder,
including, but not limited to, notices to participants.
Purchaser shall, as of the Closing, assume the obligations of the
Section 125 Plan listed thereon, and shall deliver to Seller
evidence of same.
(p) This Agreement and each of the Exhibits thereto to
which Seller is a party have been duly executed and delivered by
Seller, are legal, valid and binding obligations of Seller, and
enforceable against it in accordance with their respective terms,
except as may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter
in effect affecting the enforcement of creditors rights generally
and (ii) general principals of equity (regardless of whether
considered in the proceeding in equity or in law).
(q) The Xxxx of Sale and instruments of assignment,
when executed and delivered to Purchaser will transfer to
Purchaser all of the Assets, free and clear of all mortgages,
liens, charges and encumbrances, of any nature whatever except as
provided on Schedule "6(q)" hereto.
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(r) Since January 31, 2003:
(1) Seller has and shall continue to use its best
efforts to conduct its business in the ordinary course of
business.
(2) Seller has and shall continue to use its best
efforts to meet the contractual obligations and to pay its
obligations as they mature in the ordinary course of business.
(3) Seller has and shall continue to use its best
efforts to preserve intact the business organization and the
goodwill of Seller, its current staff, both independent
contractors and employees, its students, suppliers, teachers and
others having business relations with it.
(4) Seller has kept and shall continue to use its
best efforts keep the insurance now maintained with respect to
the Assets in full force and effect.
(5) No dividends, and no payments to Affiliates
shall be made except in the ordinary course of business.
(s) Seller has not granted any power of attorney to
any person in connection with the Business.
(t) Qualifications.
(1) Neither Seller, nor any person or entity that
exercises substantial control over the Seller (as the term
"substantial control" is defined in 34 C.F.R. Paragraph 600.21(a)(6)),
nor any member of such person's family (as the term "family" is
defined in 34 C.F.R. 600.21(f)), alone or together, (i) owes, or
(ii) exercises or exercised substantial control over another
school or third-party servicer (as that term is defined in 34
C.F.R. 668.2) that owes a liability for a violation of a Title IV
Program requirement which liability is not being repaid in
accordance with an agreement with USDOE.
(2) Neither Seller, nor any person or entity that
has the power to exercise substantial control over Seller, has
filed for relief in bankruptcy or had entered against it an order
for relief in bankruptcy.
(3) The Seller has not pled guilty to, pled nolo
contendere to, or been found guilty of, a crime involving the
acquisition, use or expenditure of funds under the Title IV
Programs or been judicially determined to have committed fraud
involving funds under the Title IV Programs.
(4) The Seller has not knowingly employed in a
capacity involving administration of funds under the Title IV
Programs or the receipt of funds under those programs, any
individual who has been convicted of, or has pled nolo contendere
or guilty to, a crime involving the acquisition, use or
expenditure of federal, state or local government funds, or has
been administratively or judicially determined to have committed
fraud or any other material violation of law involving federal,
state or local government funds.
(5) The representations of Seller in Section
6(t)(1)-(4) shall not extend to Ms. Takes.
7. REPRESENTATIONS OF TASA AND TESC. TASA and TESC make
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the following representations and warranties to Purchaser, which
shall be true and correct on the date hereof and as of the
Closing Date, except as otherwise disclosed to Purchaser in
writing and agreed to by Purchaser; notwithstanding the
foregoing, for purposes of these representations and warranties
and any indemnification by Seller or the Affiliates for breaches
thereof, Seller and the Affiliates shall not be deemed to have
misrepresented or breached if Ms. Takes, individually, or as an
officer, director, or employee of Seller or the Affiliates, had
or has any actual knowledge or reasonably should have knowledge
with respect to the subject matter of any such representation and
warranty which knowledge if disclosed herein would make the
statements of Seller or the Affiliates true and not materially
misleading):
(a) TASA is a corporation duly organized and existing
and in good standing under the laws of the State of Delaware and
is duly qualified to transact business in the State of Delaware
and qualified as a foreign corporation in those jurisdictions
where such qualification is required by its operation. TESC is a
corporation duly organized and existing and in good standing
under the laws of the State of New York and is duly qualified to
transact business in the State of New York and qualified as a
foreign corporation in those jurisdictions where such
qualification is required by its operation. Each of TASA and
TESC has full power and authority to perform its obligations as
provided in this Agreement. The execution and delivery by TASA
and TESC of this Agreement and the consummation of the
transactions contemplated herein have been duly authorized by all
requisite corporate action, and will not conflict with or breach
any provision of any agreement to which either is a party or by
which either may be bound, or the Certificate of Incorporation or
By-Laws of TASA or TESC.
(b) Except as disclosed on Schedule "7(b)" hereto,
neither TASA nor TESC has received any notice, nor has any actual
knowledge of any actions, suits or proceedings pending to which
Seller, TASA or TESC is a party, or threatened against Seller,
TASA or TESC affecting Seller, or the Business or any of the
Assets to be transferred under this Agreement, or which would
prevent or substantially hinder the consummation of the
transactions contemplated by this Agreement.
(c) No representation or warranty by TASA or TESC
contained in this Agreement (including the Schedules and
Exhibits) nor any written representation to be made or furnished
hereafter by TASA or TESC in connection with the transactions
contemplated hereby, contains or will contain any material error
or misstatement of material fact or omits or will omit to state
any material fact necessary to make the representations or
statements contained herein or therein not materially misleading.
(d) This Agreement and each of the Exhibits thereto to
which either of TASA or TESC is a party have been duly executed
and delivered by TASA and TESC, as applicable, are legal, valid
and binding obligations of TASA and TESC, as applicable, and
enforceable against it in accordance with their respective terms,
except as may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter
in effect affecting the enforcement of creditors rights generally
and (ii) general principals of equity (regardless of whether
considered in the proceeding in equity or in law).
8. REPRESENTATIONS AND WARRANTIES BY PURCHASER AND MS.TAKES.
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(a) Purchaser makes the following representations and
warranties to Seller, which shall be true and correct on the date
hereof and as of the Closing Date, except as otherwise disclosed
to Seller in writing and agreed to by Seller:
(i) Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Delaware and is duly qualified to transact business in New
York and Massachusetts and the other jurisdictions in which the
business of Purchaser would require such qualification.
Purchaser has full corporate power and authority to enter into
this Agreement and to consummate the transactions contemplated by
this Agreement.
(ii) Ms. Takes now owns (and will own on the
Closing Date) beneficially and of record all of the issued
capital stock of Purchaser, free and clear of any liens, claims,
charges, options or encumbrances. There are no existing options,
warrants, subscription rights, convertible securities or similar
rights granted by Purchaser or Ms. Takes, or any commitments or
agreements of any character to which Purchaser or Ms. Takes is a
party, relating to the authorized or issued capital stock of
Purchaser. No issuance or transfer of any stock of Purchaser or
Ms. Takes shall be made prior to the Sale Date unless each
recipient or transferee of such stock agrees in writing to assume
or guaranty the obligations of Purchaser and Ms. Takes to Seller
and the Affiliates under this Agreement and Seller is reasonably
assured of the financial capability of such transferee to meet
such obligations.
(iii) From the Closing Date, through and
including the Sale Date, Purchaser shall use its best efforts to
(A) operate the Institution to meet and maintain compliance with
USDOE requirements, including, but not limited to, all USDOE
requirements pertaining to financial responsibility and
administrative capability; (B) maintain the Institution's
eligibility and certification to participate in USDOE student
loan and financial aid programs for which the Institution is
currently approved for participation; (C) maintain the
Institution's accreditation from ACICS; (D) maintain the
Institution's licensure and approval from the New York State DOE
and the State of Massachusetts DOE; (E) not enter into any
contracts or agreements which restrict a sale of the Institution
as contemplated in Paragraph "2". Through and including the
Sale Date, Purchaser shall not transfer any interest in the
assets of Purchaser without fair market value consideration in
exchange therefore or replacement of such assets with assets of
equal or greater value. If Purchaser determines any assets are
to be transferred without such fair market value consideration
replacement, Seller shall receive written notice thereof with
reasonable evidence of value and the terms of such transfer, and
Net Proceeds of Sale allocable to Seller, shall be increased by
Seller's Portion of such fair market value. Fair market value of
any assets transferred shall be net of any debt of Purchaser on
such assets.
(iv) The execution and delivery by Purchaser of
this Agreement and the consummation of the transactions
contemplated hereby do not and will not conflict with or violate
any contract or agreement to which Purchaser is a party or by
which it may be bound, are not contrary to the certificate of
incorporation or by-laws of Purchaser and are not contrary to any
order of any court to which Purchaser is subject.
(v) The execution, delivery and performance by
Purchaser of this Agreement have been duly authorized by all
requisite corporate action. This Agreement constitutes a legal,
valid and binding obligation of Purchaser enforceable in
accordance with its terms.
(vi) There are no actions, suits or proceedings
pending, and Purchaser has no knowledge of any actions, suits or
proceedings threatened, against Purchaser or Ms. Takes which
would materially affect Purchaser or Ms. Takes or which would
prevent or substantially hinder the consummation of the
transactions contemplated by this Agreement.
(vii) Purchaser is not in default under any
commitment, contract, agreement, lease or other document to which
it is a party or to which it may be bound, and which would have a
material effect on either corporation's abilities to consummate
the transactions contemplated hereunder. To Purchaser's actual
knowledge, no event has occurred which, with the lapse of time,
would constitute such a material default thereunder.
(viii) Purchaser (A) has received all
information in respect of the Business, including the Assets and
Assumed Liabilities, as it has deemed important in making the
decision to buy the Business, including the Assets and Assumed
Liabilities from Seller and has been afforded the opportunity to
ask questions of and receive answers from Seller's senior
management concerning the Business, including the Assets and
Assumed Liabilities and the present and prospective business
prospects of the Business; (B) has had access to and received
sufficient information to fairly value the Business, including
the Assets and Assumed Liabilities; (C) has knowledge and
experience in financial and business matters relating to the
operation of the Institution and accordingly is capable of
evaluating and has evaluated the merits of the transactions
contemplated hereby; and (D) has made the determination to enter
into such transactions based upon its own evaluation of the value
of the Business, including the Assets and Assumed Liabilities,
and the present and prospective prospects of the Business.
(ix) As of the date hereof, Purchaser has, and as
of the Closing Date, Purchaser will have full financial capacity
to perform its obligations hereunder including, without
limitation, to pay the Purchase Price as and when due. Without
limiting the foregoing, Purchaser acknowledges that financing of
the Purchase Price is not a condition to Closing, and represents
and warrants that it does not require financing to fund payment
of the Purchase Price as and when due.
(b) Ms. Takes and Purchaser make the following
representations and warranties to Seller, which shall be true and
correct on the date hereof and as of the Closing Date, except as
otherwise disclosed to Seller in writing and agreed to by Seller:
(i) Since January 31, 2003:
(1) Ms. Takes has and shall continue to use her
best efforts to conduct the Business in the ordinary course of
business.
(2) Ms. Takes has and shall continue to use her
best efforts to cause Seller to meet the contractual obligations
and to pay its obligations as they mature in the ordinary course
of business.
(3) Ms. Takes has and shall continue to use her
best efforts to preserve intact the Business organization and the
goodwill of Seller, its current staff, both independent
contractors and employees, its students, suppliers, teachers and
others having business relations with it.
(4) Ms. Takes has and shall continue to use her
best efforts to keep the insurance now maintained with respect to
the Assets in full force and effect.
(ii) To the actual knowledge of Ms. Takes, from
October 31, 2002 to the date of this Agreement, (A) there has
been no material adverse change in the Assets or the financial
condition or in the operations and prospects of Seller or the
Business from that shown in the Audited Financial Statements for
Fiscal Year Ended such date, except as may be shown in the
Management Financial Statements issued thereafter, (B) no assets
owned or leased by the Seller or used in the Business have
suffered any material destruction or damage which is not
reasonably insured or would have a material adverse effect on the
Assets; and (C) the Business has been conducted in the ordinary
course, excepting such actions necessary for the completion of
the transactions contemplated hereunder or as disclosed in
writing pursuant to the terms of this Agreement.
(iii) Neither Purchaser nor Ms. Takes has any
knowledge which if disclosed would make any of the
representations, covenants and warranties of Seller in this
Agreement misleading or untrue in any material respect.
9. EMPLOYMENT CONTRACTS. At the Closing, in
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consideration of the transactions contemplated hereunder,
Purchaser shall deliver to Seller:
(a) from each of Faith Takes and Xxxxxxx Xxxxxxx-
Xxxxxxxx, a release of TASA, TESC and Seller from all obligations
under the terms of their current employment agreements with
Seller, in the form of Exhibit "B" hereto; and
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(b) from Ms. Takes, an executed copy of her employment
agreement with Purchaser (the "Takes Employment Agreement"), in
form and substance reasonably acceptable to Seller which shall
provide at a minimum that (i) Ms. Takes shall be employed from
the Closing Date and through the Sale Date on a best efforts
basis as President and Chief Executive Officer of Purchaser and
the Institution and committed to such time and effort as is
necessary to perform the functions of the office, unless she is
permanently disabled and incapable of performing such functions;
(ii) compensation limits which are normal and customary for the
position; (iii) a noncompetition agreement; and (iv) no form of
golden parachute or similar change of control payment obligations
in favor of Ms. Takes.
10. CLOSING BALANCE SHEET. Seller shall deliver to
---------------------
Purchaser an audited balance sheet prepared in accordance with
generally accepted accounting principals consistently applied for
the fiscal period ended on the Closing Date (the "Closing Balance
Sheet"). Seller shall deliver the Closing Balance Sheet within
forty-five (45) days of Closing.
11. CONDITIONS TO CLOSING BY PURCHASER. The obligations of
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Purchaser hereunder, are specifically contingent on the following
conditions to be met on or before Closing, each of which may be
waived by Purchaser in its sole discretion:
(a) Receipt of all approvals, if any, from the New
York State Education Department and the Massachusetts Department
of Education required by such authorities prior to closing a sale
of assets of Seller.
(b) Satisfaction by counsel to Purchaser that the
corporate status and proceedings of Seller are in satisfactory
order, that Seller, except to the extent otherwise excepted in
this Agreement, has good and marketable title to the Assets and
that Seller can transfer the Assets, subject to such exceptions,
free and clear of any and all liens and encumbrances.
(c) Approval of the transaction by all lenders and
financing entities of Seller and its Affiliates where such
approval is required under the terms of any financing document.
(d) Seller shall have completed and filed (or filed
appropriate extensions of time to file accompanies with payment
of taxes shown as due thereon) of all Federal and State tax
returns for the year ending October 31, 2002.
(e) Seller and Purchaser shall have complied with any
and all applicable provisions of federal and state securities
laws, rules and regulations, including the submission of
financial information in such form as required thereby.
(f) Receipt of all required approvals and consents to
assignment of all Material Contracts.
(g) Execution and delivery to Ms. Takes by Seller of a
general release in connection with her employment agreement with
Seller including a release from the covenant not to compete, in a
form acceptable to counsel to Purchaser, but excepting therefrom
obligations of Ms. Takes under this Agreement and the documents
executed in connection therewith.
(h) Seller shall have delivered to Purchaser an
opinion of counsel to Seller in a form that is reasonably
satisfactory to Purchaser; provided that Seller shall not deliver
an opinion of counsel with respect to regulatory compliance with
requirements or related matters of USDOE, New York State DOE,
State of Massachusetts DOE, ACICS or other similar or related
regulatory authorities.
(i) Seller shall have performed and complied with all
agreements and conditions required by this Agreement to be
performed or complied with by Seller on or prior to or at the
Closing.
12. CONDITIONS OF SELLER TO CLOSING.
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The obligations of Seller hereunder are specifically
contingent on the following conditions to be met on or before
Closing, each of which may be waived by Seller in its sole
discretion:
(a) Satisfaction by counsel to Seller that the
corporate status and proceedings of Purchaser are in satisfactory
order.
(b) Purchaser shall have delivered to Seller and any
named defendants in the Takes Litigation, a fully executed
stipulation of discontinuance from Former Xxxxxxx Xxxxx and Ms.
Takes, individually, with prejudice, discontinuing the Takes
Litigation, in a form satisfactory to counsel to Seller.
(c) Purchaser shall have delivered to Seller, a fully
executed satisfaction of judgment, in form for filing and subject
to approval of counsel to Seller, of the $75,000 judgment entered
against Seller in favor of Ms. Takes in the Takes Litigation.
(d) The Capital Bank and Trust Company debt of Seller
shall have been paid in full or assumed by Purchaser, and
Purchaser shall obtain and deliver to Seller and its Affiliates,
as applicable, a release, in form satisfactory to counsel to
Seller, from any and all obligations, guarantees and security
interests granted by Seller and its Affiliates pertaining to such
debt.
(e) The SBA loan of Seller shall have been paid in
full or assumed by Purchaser, and Purchaser shall obtain and
deliver to Seller and its Affiliates, as applicable, a release,
in form satisfactory to counsel for Seller, from any and all
obligations, guarantees and security interests granted by Seller
and its Affiliates pertaining to such SBA loan.
(f) The TFC Credit facility of Seller shall have been
paid in full or assumed by Purchaser, and Purchaser shall obtain
and deliver to Seller and its Affiliates, as applicable, a
release, in form satisfactory to counsel for Seller, from any and
all obligations, guarantees and security interests granted by
Seller and its Affiliates pertaining to such TFC Credit facility.
(g) Purchaser shall have delivered to Seller general
releases, in the form annexed hereto as Exhibit "C", executed
-----------
by all of the Former Xxxxxxx Xxxxx Shareholders, releasing
Seller, TASA and TESC and their directors, shareholders,
officers, employees and agents from any and all obligations and
guarantees under or relating to the Former Xxxxxxx Xxxxx Notes
and the Asset Purchase Agreement between Seller and Former
Xxxxxxx Xxxxx. In lieu of the release of Xxxxx Xxxxxxx,
Purchaser and Ms. Takes shall deliver to Seller an
indemnification agreement in form satisfactory to Seller executed
by Purchaser and Ms. Takes, personally, indemnifying, defending
and holding harmless Seller, TASA and TESC and each of their
directors shareholders, officers, employees and agents from any
and all obligations and guarantees to Xxxxx Xxxxxxx as a former
shareholder of Former Xxxxxxx Xxxxx or under the Asset Purchase
Agreement.
(h) Purchaser shall have delivered to Seller general
releases, in form satisfactory to counsel to Seller, of Seller,
TASA and TESC and their directors, shareholders, officers,
employees and agents from and against all obligations under or
relating to all other existing lending arrangements, and all
contracts and liabilities assumed by Purchaser in accordance with
this Agreement. Seller agrees to cooperate with Purchaser in
good faith to obtain these releases.
(i) Purchaser shall have delivered to Seller from each
of Ms. Takes and Xx. Xxxxxxx-Xxxxxxxx, and any other employees
under written contract with Seller, a general release, in form
satisfactory to counsel for Seller, of Seller, TASA and TESC and
their directors, shareholders, officers, employees and agents
from and against all obligations under or relating to any written
employment agreement with Seller and any obligations of Seller
and its Affiliates thereunder, in form reasonably acceptable to
counsel to Seller.
(j) Purchaser shall have delivered to Seller an
opinion of counsel to Purchaser and Ms. Takes in a form that is
reasonably satisfactory to Seller.
(k) Approval of the transaction by the Board of
Directors of Seller and its shareholder.
(l) Approval of the transaction by all lenders and
financing entities of Seller and its Affiliates where such
approval is required under the terms of any financing document.
(m) Seller and Purchaser shall have complied with any
and all applicable provisions of federal and state securities
laws, rules and regulations, including the submission of
financial information in such form as required thereby.
(n) Purchaser shall have delivered to Seller a copy of
the Takes Employment Agreement.
(o) Purchaser shall have performed and complied with
all agreements and conditions required by this Agreement to be
performed or complied with by Purchaser on or prior to or at the
Closing.
13. CLOSING. The Closing shall take place at the offices
of Seller's counsel, Rider, Weiner, Xxxxxxx & Calhelha, P.C., 000
Xxxxxx Xxxxxxx Xxxx, Xxx Xxxxxxx, Xxx Xxxx 00000 at 2:00 p.m. on
June 3, 2003 ("Closing Date"). Time is of the essence with
respect to such date and this Agreement will terminate and be of
no further force and effect if Closing does not occur on such
date unless the parties hereto agree to an extension of the
Closing Date. At the Closing, all steps shall have been taken
and documents and instruments shall be delivered, in form
reasonably acceptable to counsel which are necessary or
appropriate to consummate the transactions.
14. RESTRICTIVE COVENANT.
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(a) As used in this paragraph:
(1) "Company" means the Seller and the
Affiliates, their successors and assigns, and any of their
present or future subsidiaries, or organizations controlled by,
controlling, or under common control with any of them.
(2) "Conflicting Organization" means any person
or entity which provides or is engaged in the provision of a
Conflicting Service.
(3) "Conflicting Service" means any post
secondary, proprietary school direct or indirect ownership,
management, development, investment, or operation, each within
the State of New York or Commonwealth of Massachusetts or within
fifty (50) miles of any current school or branch campus location
of Seller.
(b) For a period of seven (7) years after the Closing
Date, the Company shall not, without the prior written consent of
Purchaser:
(1) render a Conflicting Service to, or solicit
in any manner, a Conflicting Organization, and shall not,
directly or indirectly, engage, individually or as a partner,
shareholder, owner, employee, independent contractor, investor,
agent, member or principal in any business which is providing a
Conflicting Service;
(2) solicit any employee, teacher or
administrator of Purchaser for the purpose of selling or
rendering or attempting to sell or render any Conflicting
Service,
(3) solicit any employee, officer, director, or
agent of Purchaser for the purpose of offering employment, or
work for hire, to any such person with Company or any entity
owned or operated by Company, or any Conflicting Organization, or
in connection with the sale or provision of any Conflicting
Service,
(4) interfere with, disrupt or attempt to disrupt
the relationship between Purchaser and any customer, supplier,
vendor or agent of Purchaser.
The provisions of this Paragraph "14(b)" shall survive the Sale
or Transfer and may be assigned to the Purchaser Parties in a
Sale or Transfer.
(c) Company agrees that a breach or threatened breach
on its part of any covenant in this Paragraph "14" will cause
such damage to Purchaser as will be irreparable and the exact
amount of which will be impossible to ascertain. Accordingly, in
the event of my breach or threatened breach of such Paragraph, in
addition to, and not in limitation of all and any other remedies
available to it, Purchaser will be entitled to institute and
prosecute proceedings, in any court of competent jurisdiction,
for an injunction restraining and enjoining Seller in such manner
as the court shall determine, from breaching or continuing to
breach the terms of this Agreement. This Agreement shall not be
construed to prohibit Purchaser from pursuing any other remedies
available to Purchaser under applicable law for such breach or
threatened breach, including the recovery of damages. Company
further agrees that the covenants contained in this Agreement are
necessary and reasonable for the protection of Purchaser's
legitimate business interests and are reasonable in scope and
content.
15. OTHER CONDITIONS TO CLOSING.
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(a) Seller shall, in addition to other documents as
may be reasonably required by counsel to the parties hereunder,
deliver to Purchaser at the Closing the following:
(i) a certificate of an officer of Seller
certifying that all representations and warranties of Seller in
this Agreement are true and correct as of the Closing as though
such representations and warranties were made as of such date.
(ii) a Xxxx of Sale transferring all of the
Assets, and assignments of all intellectual property and
proprietary interests in the form of Exhibit "D" hereto.
(iii) a certificate of an officer of Seller
certifying as to: true and correct copies of (A) all corporate
action of the Seller authorizing and approving this Agreement and
the performance of the transactions contemplated hereby; (B)
certificate of incorporation and by-laws and all amendments
thereto; (C) signatures of duly elected and acting officers
authorized to execute documents hereunder.
(iv) the Escrow Agreement.
(v) good standing certificates of TASA, TESC and
Seller dated a current date.
(b) Purchaser shall, in addition to other documents as
may be reasonably required by counsel to the parties hereunder,
deliver to Seller at the Closing the following:
(i) a certificate of an officer of Purchaser
certifying that all representations and warranties of Purchaser
in this Agreement are true and correct as of the Closing as
though such representations and warranties were made as of such
date.
(ii) an officers' certificate of Purchaser
certified by an officer as to: true and correct copies of (A)
all corporate action of Purchaser authorizing and approving this
Agreement and the performance of the transactions contemplated
hereby; (B) certificate of incorporation and by-laws and all
amendments thereto; (C) signatures of duly elected and acting
officers authorized to execute documents hereunder.
(iii) the Escrow Agreement.
(iv) a good standing certificate of Purchaser
dated a current date.
16. BROKER. Purchaser represents to Seller that L.P.
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Xxxxxx and Company, Inc. rendered services for Purchaser in
connection with this transaction. Seller represents to Purchaser
that Xxxxxxxx Xxxxxx & Company, LLC rendered services in
connection with this transaction. Each of Seller and Purchaser
agrees to hold the other parties harmless from any and all claims
arising by reason of any such services and further agrees to pay
any and all commissions, fees and expenses of their respective
brokers in accordance with the agreement each has with such
party.
17. INDEMNIFICATION.
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(a) Purchaser, and Seller and the Affiliates jointly
and severally as the "Seller Entities", (both the Purchaser and
Seller Entities being the "Indemnifying Party") hereby agree to
indemnify, defend and hold harmless the other (such party being
the "Indemnified Party") from and against any and all claims,
damages, liabilities, losses and expenses (including reasonable
attorneys' fees) of any kind or nature whatsoever incurred or
sustained by the Indemnified Part(ies) arising from or in
connection with a breach by any such Indemnifying Party of any
representation, warranty or covenant made by such Indemnifying
Party in this Agreement (including information contained on any
Schedule or Exhibit annexed hereto), or by reason of any claim,
action or proceeding asserted or instituted directly resulting
from any matter or thing covered by such representations,
warranties or covenants; provided that the Selling Entities
indemnification of Purchaser shall be limited to and shall not
exceed the Indemnification Cap and shall be payable only from
Seller's Portion of Net Proceeds of Sale, if any. This indemnity
shall survive the Closing, but shall expire three (3) years after
the Closing Date, except with respect to indemnification arising
from breaches of representations of Paragraph "6(j)" hereof
[related to taxes] which shall expire six (6) years after the
Closing Date.
(b) In the event that at any time or from time to
time, any party shall determine that it is entitled to
indemnification under Paragraph "17(a)" hereof, the Indemnified
Part(ies) shall give written notice to the Indemnifying Part
(ies) and the Escrow Agent under the Escrow Agreement, specifying
the basis on which indemnification is sought, the amount of the
asserted loss, damage or expense, as the case may be, and
requesting indemnification. In the event indemnification is
determined to be required under this Agreement, it is
contemplated by the parties hereto that (i) payment shall be made
to the Indemnified Party at or before the time such Indemnified
Party shall be required to make payment with respect to the
claim, and (ii) Purchaser, in lieu of its right to seek payment
from the Seller Entities, shall be required to set off such
payment obligation against any monies due to Seller as Seller's
Portion of Net Proceeds of Sale, unless there shall be a dispute
as to the Indemnified Party(ies)' entitlement to indemnification,
in which case payment or set off, as the case may be, shall be
made only upon resolution of said dispute pursuant to the
provisions of Paragraph "22(k)" hereof. Upon receipt of any
request for indemnification, the Indemnifying Part (ies) may
object thereto by delivering written notice of such objection to
the Indemnified Party (ies) specifying in reasonable detail the
basis on which such objection is made. Such objection shall be
made within twenty (20) days of notice from the Indemnified Party
requesting payment unless the Indemnifying Party shall have
earlier agreed to such liability.
(c) To the extent that a change of control of
Purchaser or Seller, TASA or TESC occurs prior to the expiration
of the indemnification period, each party covenants to require
that the obligations of such party as an Indemnifying Party
hereunder shall be assumed or otherwise guaranteed by the third
party(ies) obtaining such control, or shall provide to the other
party such other reasonable form of security for such obligations
as is reasonably acceptable to the other party for the remaining
period of the survival of such indemnification obligations. With
respect to Seller Entities, any such indemnification obligation
is specifically acknowledged to be limited to the amount of the
Indemnification Cap remaining after all previous set offs of
Purchaser permitted in this Paragraph "17".
(d) Notwithstanding any other provision of this
Agreement and any other document executed and delivered in
connection herewith, Sellers' maximum liability to Purchaser
hereunder, whether arising from breach of contract, breach of
warranty, breach of representation or any other cause of action,
shall be an amount equal to the Indemnification Cap.
18. FURTHER ASSURANCES. Each of the parties hereto agrees
------------------
that each will, whenever and as often as it shall be reasonably
requested to do so by any other party hereto, execute,
acknowledge and deliver, or cause to be executed, acknowledged
and delivered, any and all further instruments as may be
necessary or expedient in order to consummate the transactions
provided for in, or contemplated by, this Agreement and do any
and all further acts and things as may be necessary or expedient
in order to carry out the purpose and intent of this Agreement
and of the documents and instruments delivered in connection
therewith. This obligation shall survive closing and shall
remain in force and effect until the obligations of the parties
to each other have been fully satisfied.
19. NO SHOP CLAUSE.
--------------
Seller agrees that it will not, nor will TASA or TESC,
between the execution of this Purchase Agreement and the Closing
Date, directly or indirectly:
(a) solicit or accept offers to sell the Assets or the
Business or the stock of the Seller or enter into negotiations
concerning any unsolicited offers so received;
(b) provide information to any other party to assist
the other party in evaluating a potential purchase of, or
investment in, the Assets or the Business or the stock of the
Seller;
(c) use this Purchase Agreement to open negotiations
with any other party who previously expressed an interest in or
submitted a Letter of Intent for the purchase of the Assets of
the Business or the stock of Seller.
20. APPROVALS. Purchaser shall be responsible for all
---------
costs and expenses in connection with the preparation of
applications for regulatory approvals in connection with this
Agreement and the transactions contemplated herein, inclusive of
the First Day Balance Sheet, and including all financial
information or documentation to be supplied by the Seller in
connection with such applications, excepting the Closing Balance
Sheet.
(a) State Educational Regulatory Body and Accrediting
-------------------------------------------------
Agency Filings Purchaser shall obtain all required accrediting
--------------
agency and state education regulatory body approvals and to make
all notices to accrediting bodies and state education regulatory
bodies with respect to the Institution. Purchaser's Schedule
20(a) lists each accrediting agency or state education regulatory
body approval or notice that is required in connection with this
agreement. Purchaser shall provide Seller's counsel, Drinker
Xxxxxx & Xxxxx LLP ("DBR"), and Rider, Weiner, Xxxxxxx &
Calhelha, P.C. ("RWFC") if RWFC requests, with a complete copy
of any application for approval of the change of ownership, or
any notification of the change of ownership within five (5) days
from the date of submission.
(b) U.S. Department of Education Filings. Purchaser
------------------------------------
shall be responsible for ensuring that all documents necessary to
compose a Materially Complete Application for a change of
ownership (as that term is defined at 34 C.F.R. 600.20(g)) and to
obtain a Temporary Provisional Program Participation Agreement
("TPPPA") are filed with the USDOE no later than ten (10) days
after Closing. A copy of the final and complete USDOE
application and all other applications to regulatory authorities
shall be delivered to Seller's counsel when filed and Seller's
counsel shall be given a copy immediately upon receipt and
advised of any inquiry or further response to each such
application. Purchaser shall also be responsible for the
submission of all materials required by USDOE in accordance with
the terms of 34 C.F.R. Paragraph 600.20(h) or as otherwise requested by
USDOE in order to extend the TPPPA for the Institution on a month
to month basis, including, but not limited to the First Day
Balance Sheet showing the financial position of the Institution
as of the date of Closing (after giving effect to all the
transactions contemplated by this Agreement to be completed on
the Closing date) in a form that is acceptable to USDOE.
(c) Copies of any and all correspondence from USDOE
received by any party, its affiliates, officers or counsel
through and including the Sale Date shall be delivered to the
other party and its counsel not more than five (5) days after
receipt thereof.
21. RISK OF LOSS.
------------
The risk of loss to the Assets between the date of this
Agreement and the Closing Date shall be upon Seller. If the loss
is insured, or uninsured by not more than $50,000 , Seller shall
take all commercially reasonable steps as soon as possible after
any loss or damage to repair, replace and restore such property
to its state and condition prior to such loss or damage. If
repair, replacement and restoration exceed $50,000 of uninsured
cost, Seller has the option to terminate this Agreement. If
Seller is obligated to repair or elects to do so despite the
uninsured cost, and such repair has not been completed on or
prior to the scheduled Closing Date, Purchaser may, at its
option:
(a) elect to terminate this Agreement;
(b) elect to consummate the transaction on the
scheduled Closing Date in which event Seller shall assign to
Purchaser all of Seller's rights under any applicable insurance
policies and pay to Purchaser the uninsured amount necessary to
restore the lost or damaged property to its former condition; or
(c) elect to postpone the scheduled Closing Date for a
period of sixty (60) days. If, after the expiration of that
sixty (60) day extension period, the lost or damaged property has
not been adequately repaired, replaced or a restored, Purchaser
may terminate this Agreement, and the parties shall be released
and discharged from any further obligation hereunder.
22. MISCELLANEOUS.
-------------
(a) Benefits. All of the terms and provisions of this
--------
Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and assigns.
(b) Entire Agreement. This Agreement and the Exhibits
----------------
hereto contain the entire agreement among the parties with
respect to the transactions contemplated herein; and no party
shall be bound by nor shall be deemed to have made any
representations, warranties or covenants except those contained
herein. This Agreement cannot be modified, changed, discharged
or terminated except by an instrument in writing, signed by the
party against whom the enforcement or any modification, change,
discharge or termination is sought.
(c) Captions. The captions of the paragraphs and
--------
subparagraphs of this Agreement are for convenience and reference
only, and are not to be considered in construing this Agreement.
(d) Survival. All covenants, representations and
--------
warranties contained in this Agreement, and in the documents and
instruments executed and delivered in connection therewith, and
any certificates furnished under any provision of this Agreement
and the indemnity provisions of Paragraph "17" shall survive the
execution and delivery of this Agreement and the transactions
contemplated by this Agreement.
(e) Notices. Any notices, request, instrument or
-------
other document to be given hereunder shall be in writing and,
except as otherwise provided for herein, shall be delivered
personally or sent by certified mail, return receipt requested,
as follows:
(1) If to Purchaser:
Empire Education Corporation
c/o Xxxxxxx Xxxxx School, Inc.
000 Xxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxx, XX 00000
Att: Faith Takes, President
With copy to Xxxxxx Xxxxx, Esq., Xxxxxxx Xxxx LLP, Xxx X&X Xxxxx,
Xxxxx 0000, Xxxxxxx, Xxx Xxxx 00000;
(2) If to Seller:
TASA Educational Services Corporation
0 Xxxxxxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Att: President
with copy to Xxxxxxx Crush, Esq., Rider, Weiner, Xxxxxxx &
Calhelha, P.C., 000 Xxxxxx Xxxxxxx Xxxx, Xxx Xxxxxxx, Xxx Xxxx
00000;
or to such other address or addresses as any party may hereafter
designate in writing to the other. Such notices may be sent by
U.S. mail or overnight courier. If mailed, such notices shall be
deemed given three (3) business days after deposit in the United
States mail, properly addressed with postage affixed and sent
certified mail, return receipt requested; if by overnight
courier, upon delivery with evidence of same. No notice sent by
email shall be deemed effective.
(f) Severability. In case any one or more of the
------------
provisions or parts of a provision contained in this Agreement
shall for any reason be held to be invalid, illegal or
unenforceable in any respect in any jurisdiction, such
invalidity, illegality or unenforceability shall not effect any
other provision or part of a provision of this Agreement.
(g) Governing Law. This Agreement shall be governed
-------------
by and construed in accordance with the laws of the State of New
York.
(h) Expenses. Each of the parties shall pay its
--------
respective legal, accounting and other fees in connection with
this Agreement. Purchaser shall be responsible for all costs in
connection with preparing applications for regulatory approvals,
including all financial information and documentation submitted
with such applications, other than financial information or
documentation required to be supplied by Seller under the terms
of this Agreement.
(i) Assignment. This Agreement may not be assigned
----------
by any party hereto without the consent of the other parties,
except that (i) TASA or TESC or an entity into or with which they
are merged or consolidated may without the consent of any other
party (other than Seller), and (ii) any other affiliate of TASA
or TESC may with the consent of the other parties hereto which
consent shall not be unreasonably withheld; assume all or any
portion of the rights and obligations of Seller hereunder upon
the dissolution or other merger or consolidation with any other
entity of Seller.
(j) Waiver. No failure on the part of any party to
------
exercise, and no delay in exercising, any right hereunder or
under any Exhibit hereto shall operate as a waiver thereof, nor
shall any single or partial exercise of any right preclude any
other or future exercise thereof or the exercise of any other
right.
(k) Dispute Resolution. The parties agree that if a
------------------
dispute arises out of or relating to this Agreement, the parties
shall first attempt in good faith to settle the dispute for
thirty (30) days. In the event that settlement is not reached
within such thirty (30) days, any party hereto may demand by
written notice to the other binding arbitration seeking
enforcement and resolution of the dispute founded on this
Agreement. The arbitration shall be conducted by the American
Arbitration Association in Dutchess County, New York, pursuant to
its rules as in effect at such time; provided, however, that only
one arbitrator shall be appointed to determine the matter. Any
and all decisions of the arbitrator shall be final and binding on
the parties hereto and shall be given the effect of a judgment
and may be entered in a Court of competent jurisdiction.
(l) Confidentiality. The parties acknowledge that the
---------------
terms and conditions of this Agreement are confidential and will
not be disclosed to any third party except to legal
representatives or agents of the parties, solely in connection
with Closing the transaction and specifically excepting (i) that
Purchaser may disclose this Agreement as required in connection
with the obligation of Purchaser to obtain financing of this
transaction and to other persons at the request of such investing
and financing parties, and (ii) as may be agreed in writing by
the Seller and the Purchaser. Except as required by applicable
securities laws, rules or regulations, neither party will make
any public announcement without the prior written consent of the
other party. The terms and conditions of this Agreement and the
Schedules and Exhibits thereto shall remain confidential for all
purposes if this Agreement terminates as provided in Paragraph
"13" or "21".
(m) Access to Records. Purchaser and Seller agree to
-----------------
furnish or cause to be furnished to each other, upon request, as
promptly as practicable, such information and assistance
(including access to books and records by agents of either)
relating to the Assets and Business as is reasonably necessary
for the preparation of any return for taxes, claims for refund or
audit or prosecution or defense of any claim, suit or proceeding
relating to Seller, the Assets and Business. Access shall be
given during reasonable business hours with prior notice so as
not to unreasonably disrupt the normal business operations of
either party.
[Balance of this Page is Intentionally Blank]
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed the day and year first above written.
EMPIRE EDUCATION CORPORATION
By:_______________________________________
Faith A. Takes, President
XXXXXXX XXXXX SCHOOL, INC.
By:________________________________________
Xxxxxx X. Xxxxx, Treasurer
TOUCHSTONE APPLIED SCIENCE ASSOCIATES, INC.
By:_______________________________________
Xxxxxx X. Xxxxx, President
__________________________________________
Faith A. Takes, individually
TASA EDUCATIONAL SERVICES CORPORATION
By:_______________________________________
Xxxxxx X. Xxxxx, President
SCHEDULE 1(a)
EXCEPTIONS TO TRANSFER
1. TFC Credit Corporation
a. UCC-1 #094708 5/4/98 New York Secretary of State
b. UCC-1 #200318679350 2/28/03 Massachusetts Sec of State
(continuation of the following:
UCC-1 #547546 5/4/98 Massachusetts Sec of State)
c. UCC-1 #98-244 0/0/00 Xxxx xx Xxxxxxxxxx, XX
d. UCC-1 #98-02508 5/5/98 New York Secretary of State
2. Key Lease Plus
a. UCC-1 #217161 10/27/99 New York Secretary of State
b. UCC-1 #99-05802 10/29/99 Albany County, New York
3. Capital Bank & Trust Company
a. UCC-1 #116446 6/15/01 New York Secretary of State
(continuation of the following:
UCC-1 #203284 10/15/96 New York Secretary of State)
b. UCC-1 #106581 5/7/02 New York Secretary of State
c. UCC-1 #106585 5/7/02 New York Secretary of State
d. UCC-1 #0789767 5/7/02 Albany County Clerk
e. UCC-1 #91-03069 6/8/01 Albany County Clerk
(continuation of the following:
UCC-1 #96-06370 10/18/96 Albany County Clerk
f. UCC-1 #8789763 5/7/02 Albany County Clerk
g. UCC-1 #8789767 5/7/02 Albany County Clerk
4. Other
Promissory Note and Mortgage Receivable of Xxxx Xxxxxxxxx
are assigned of record to Capital Bank and Trust Company.
SCHEDULE 1(b)
PURCHASER OBLIGATIONS TO OBTAIN CONSENTS/TRANSFERS
Purchaser shall provide the following:
a. Assignments of all real property leases to Purchaser and the
release of Seller and the Affiliates from all obligations
thereunder;
b. Assignments of all equipment leases;
c. Assignments of all operating agreements for the operation of
the Business in the ordinary course (e.g. maintenance
agreements for premises and equipment; telephone numbers and
advertising; telephone systems; utilities);
d. Assignments of all other Material Contracts.
SCHEDULE 2 (g)
MATERIAL CONTRACTS
1. Lease Agreement between Plaza at Latham, LLC, as Landlord,
and Former Xxxxxxx Xxxxx, as Tenant, dated June 5, 1998, as
amended through the Closing Date.
2. Lease between Xxxxxx Xxxx Nominee Trust, as Landlord, and
Former Xxxxxxx Xxxxx, as Tenant, dated June 7, 1995 as amended
through the Closing Date.
3. Capital Bank & Trust Company loans to Seller and all
documents and instruments executed in connection therewith:
a. $200,000 loan #6021478 dated June 30, 2001 as extended
through the Closing Date
b. $200,000 loan #6021517 dated June 30, 2001 as extended
through the Closing Date.
4. Capital Bank & Trust Company loan to Former Xxxxxxx Xxxxx
dated October 19, 1998 in the original principal amount of
$91,338.00 and all documents and instruments executed in
connection therewith.
5. TFC Credit Facility Corporation lending facility and all
documents and instruments executed in connection therewith.
6. U.S. Small Business Administration loan to Former Xxxxxxx
Xxxxx dated March 12, 1993 in the original principal amount
of $632,399.40 and all documents and instruments executed in
connection therewith.
7. AlaQuest Software License Agreement Software Maintenance
Agreement and Software Support Agreement.
8. Stericycle, Inc. Biomedical Waste Service Agreement.
9. Fleet Capital Leasing Lease Agreement #1678817.
10. Canon Copier Agreement dated April 3, 1999.
11. Sharp Master Lease Agreement dated October 3, 2000 and
schedules thereto.
12. Sanwa Leasing Corporation Copier Lease dated August 31, 1998.
13. BMW Financial Services Motor Vehicle Lease Agreement dated
May 23, 2000.
14. Balloon Payment Commercial Purchase Money Promissory Note of
Xxxx Xxxxxxxxx, dated December 18, 1995, in favor of Former
Xxxxxxx Xxxxx, in the original principal amount of $210,000
and documents and instruments executed in connection therewith.
15. KeyLease Plus Master Lease Agreement dated September 10, 1999
16. Lease Agreement between Xxxxx Xxxxxxx, as Landlord, and
Former Xxxxxxx Xxxxx, as Tenant, dated July 15, 1998 as
amended and extended through the Closing Date.
17. Section 125 Xxxxxxx Xxxxx School Flexible Benefits Plan.
SCHEDULE 6(B)
EXCEPTIONS TO SELLER'S TITLE TO ASSETS
See Schedule 1(a) attached hereto.
SCHEDULE 6(c)
BREACHES XX XXXXXXXX XXXXXXXXX
0. Xxxxxx Xxxxxx Small Business Administration Loan to former
Xxxxxxx Xxxxx was never assigned to MESI Acquisition Corp.
2. Promissory Note and Commercial Mortgage from Xxxx Xxxxxxxxx
assigned and held by Capital Bank & Trust Company was never
further assigned to MESI Acquisition Corp.
3. Breaches of Material Contracts due to transfer of assets
without obtaining consents of other parties.
SCHEDULE 6(d)
NOTICES OF ACTIONS KNOWN TO SELLER OFFICERS
(EXCEPTING MS. TAKES)
1. Litigation Albany Supreme Court, ID# 5714/00
2. USDOE Administrative Action: Appeal re: late refunds
SCHEDULE 6(g)
MATERIAL ADVERSE CHANGE SINCE OCTOBER 31, 2002
1. Pending United States Department of Education Administrative
Action
2. Pending regulatory reviews and audits disclosed in this
Agreement
SCHEDULE 6(h)
PATENTS, TRADEMARKS & COPYRIGHTS
1. d/b/a "Xxxxxxx Xxxxx" filed for Albany County, New York
SCHEDULE 6 (j)
TAXES PAYABLE, EXTENSIONS GRANTED
Extensions
1. New York Year ending 10/31/02 6 Month Extension to July 15, 2003
2. Massachusetts Year ending 10/31/02 6 Month Extension to July 15, 2003
SCHEDULE 6(m)
REQUIRED CONSENTS
EXCEPTING THOSE TO BE OBTAINED BY PURCHASER
None.
SCHEDULE 6(n)
ENVIRONMENTAL MATTERS
1. Services and Environmental Issues related to Stericycle,
Inc. Biomedical Waste Services Agreement
SCHEDULE 6(o)
ERISA PLANS AND OTHER BENEFIT PLANS,
EMPLOYEE BENEFITS
1. TASA-sponsored 401(k) Plan
2. Xxxxxxx Xxxxx Business School Personnel Guide
3. Health Insurance - MVP, EPO 15+ Plan, MVP Prescription
Eyewear Rider, MVP Prescription Drugs
4. Section 125 Flexible Benefits Plan Coverage
SCHEDULE 6(q)
EXCEPTIONS TO TRANSFER
LIENS AND ENCUMBRANCES REMAINING ON ASSETS
See Schedule 1(a) attached hereto
SCHEDULE 7(b)
NOTICES OF ACTIONS, SUITS OR PROCEEDINGS
KNOWN TO TASA OR TESC
1. Supreme Court Albany, Index # 5714/00
Faith Takes and former Xxxxxxx Xxxxx, as Plaintiffs
2. United States Department of Education Administrative
Action and Appeal re: refunds
SCHEDULE 20(a)
PURCHASER'S REQUIRED REGULATORY APPROVALS
1. ACICS Approval
2. New York State Department of Education
3. Massachusetts Education Department
