EXHIBIT 2.1
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is entered into as of the
14th day of June 1999, between NEW SOLARCO, INC., a Delaware corporation
("Buyer"), and MORNING SUN, INC., a Washington corporation ("Seller").
WITNESSETH:
WHEREAS, Seller filed a voluntary petition (the "Petition") for relief
pursuant to Chapter 11 of title 11 of the United States Code, 11 U.S.C. ss.101
ET SEQ., as amended (the "Bankruptcy Code") in the United States Bankruptcy
Court for the District of Delaware (the "Bankruptcy Court") on January 21, 1999
(the "Filing Date"), and has operated its business as a debtor-in-possession (as
defined in Section 1101 of the Bankruptcy Code ) since the Filing Date pursuant
to Sections 1107 and 1108 of the Bankruptcy Code;
WHEREAS, Buyer has agreed to acquire from Seller, and Seller has agreed to
sell to Buyer, the Purchased Assets (as defined below), on the terms and subject
to the conditions set forth herein and in accordance with applicable provisions
of the Bankruptcy Code;
WHEREAS, Seller has agreed to assign to Buyer its right, title and
interest under certain contracts, and Buyer has agreed to assume certain
liabilities associated therewith, on the terms and subject to the conditions set
forth herein.
NOW, THEREFORE, in consideration of the premises, covenants, representa
tions and warranties contained herein, and other good and valuable
consideration, the adequacy and receipt of which are hereby acknowledged, the
parties agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
"Accountants" shall mean an accounting firm mutually acceptable to Buyer
7and Seller; PROVIDED, HOWEVER, that if Buyer and Seller do not agree on an
accounting firm by the Closing Date, the accounting firm shall be the
Cincinnati, Ohio office of Ernst & Young LLP.
"Accounts Receivable" shall mean all accounts receivable of the Business
Unit as of the Closing Date.
"Adjusted Purchase Price" shall have the meaning set forth in Section
2.3(c).
"Affiliate" shall mean, with respect to any Person, any Person which,
directly or indirectly, controls, is controlled by, or is under common control
with, the specified Person and any Person that would be deemed to be an
"affiliate" or an "associate" of such Person, as those terms are defined in Rule
12b-2 of the General Rules and Regulations of the Securities Exchange Act of
1934, as amended.
"Assumed Contracts" shall mean (i) the contracts, agreements, leases and
subleases to be assumed by Seller and assigned to Buyer, as set forth on
SCHEDULE 2.1(B); and (ii) confidentiality agreements entered into in connection
with the Auction Procedures; PROVIDED, HOWEVER, that with respect to such
confidentiality agreements, Seller's assignment to Buyer shall be limited to
Seller's rights thereunder to enforce the obligations of the other parties
thereto as they relate to information of Seller but not as to other entities;
PROVIDED, FURTHER, that Buyer may elect to delete one or more of such contracts,
agreements, leases and subleases by notice in writing to Seller at least one
business day prior to the Closing Date, in which event such contract, agreement,
lease or sublease shall no longer be deemed to be an "Assumed Contract."
"Assumed Liabilities" shall mean (i) the Purchase Order Obligations; (ii)
all liabilities and obligations relating to the Assumed Contracts to the extent
attributable to Cure Amounts specifically identified on SCHEDULE 2.1(B) or
accrued as a liability in the calculation of Seller's Net Investment as of the
Closing Date or to obligations arising under the Assumed Contracts on or after
the Closing Date; (iii) all liabilities and obligations for credits relating to
the Business Unit owed to customers of the Business Unit as of the Closing Date;
(iv) all liabilities and obligations of Seller with respect to any and all
employee wage and benefit obligations of the Business Unit to the extent accrued
as a liability in the calculation of Seller's Net Investment as of the Closing
Date; (v) all trade payable liabilities, accruals, and obligations, arising out
of or related to the operations of the Business Unit from and after the Filing
Date to the extent accrued as a liability in the calculation of Seller's Net
Investment as of the Closing Date; (vi) all liabilities and obligations arising
out of or related to the operations of Buyer from and after the Closing Date;
(vii) postpetition taxes to the extent accrued as a liability in the calculation
of Seller's Net Investment as of the Closing Date; and (viii) all other
liabilities and obligations reflected on SCHEDULE 2.1(C); PROVIDED, HOWEVER, the
Assumed Liabilities shall not include any Excluded Liabilities.
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"Auction Procedures" shall mean the bidding and other procedures governing
the sale of the Purchased Assets as approved by the Bankruptcy Court and set
forth in the Procedures Order.
"Bankruptcy Code" shall have the meaning set forth in the Recitals.
"Bankruptcy Court" shall have the meaning set forth in the Recitals.
"Bankruptcy Rules" shall mean the Federal Rules of Bankruptcy Procedure.
"Business Unit" shall mean Morning Sun, Inc.
"Buyer's Officer's Certificate" shall have the meaning set forth in
Section 6.3(c).
"Closing" shall have the meaning set forth in Section 2.4(a).
"Closing Date" shall have the meaning set forth in Section 2.4(a).
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Continuing Employees" shall mean all employees of the Business Unit as of
the Effective Date who are offered and accept employment by Buyer.
"Cure Amounts" shall mean the pre- and post-petition amounts payable to
parties (other than Seller) to the Assumed Contracts under Section 365(b)(1) of
the Bankruptcy Code to cure defaults and to compensate for any actual pecuniary
loss under such Assumed Contracts.
"Deposit" shall mean $1,250,000 paid by Buyer to be held in an
interest-bearing escrow account by Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
pending the Closing pursuant to the Auction Procedures, as set forth in the
Procedures Order.
"Equipment" shall mean all machinery, equipment, furniture, fixtures,
automobiles and other fixed assets listed on SCHEDULE 2.1(A) which are owned by
Seller as of the Closing Date and are used by Seller in the operations of the
Business Unit.
"Excluded Assets" shall mean (i) all assets in possession of Seller but
owned by third parties; (ii) the articles of organization, regulations, seal,
related organizational documents and minute books of Seller; (iii) all bank
deposits, bank accounts,
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investments, funds, cash and cash equivalents (including marketable securities
and short term investments) owned by Seller as of the Closing Date; (iv) any
rights of Seller under this Agreement; (v) all intercompany Accounts Receivable;
(vi) the XX Xxxxxxx Software; (vii) all executory contracts, agreements, leases
and subleases of Seller not listed on SCHEDULE 2.1(B) or SCHEDULE 2.1(D); (viii)
all of Seller's claims, demands and causes of action that Seller may have under
Chapter 5 of the Bankruptcy Code; (ix) all insurance policies and proceeds
thereof; and (x) any other properties or assets of Seller which are not used in
the operation of the Business Unit.
"Excluded Liabilities" shall mean (i) all liabilities of Seller which are
not Assumed Liabilities, including, without limitation, all liabilities of
Seller or any Affiliate or representative of Seller with respect to broker's or
finder's fees and any other commission or similar fee in connection with the
transactions contemplated by this Agreement; (ii) all intercompany Accounts
Payable; (iii) liabilities and obligations attributable to Cure Amounts other
than those set forth on SCHEDULE 2.1(B) or accrued as a liability in the
calculation of Seller's Net Investment as of the Closing Date; (iv) any
outstanding checks, unpaid bank charges and bank overdrafts; (v) any liabilities
for defaults under any contracts caused by or arising out of the execution or
performance of this Agreement or the consummation of the transactions
contemplated by this Agreement; (vi) any liability or obligation that would have
been disclosed as an exception to any of the representations and warranties of
Seller set forth in this Agreement (on a schedule hereto or otherwise) had such
representations and warranties been true and correct on and as of the Closing
Date; (vii) any liabilities of the following character based upon, arising out
of or otherwise in respect of events, acts or omissions to the extent occurring
prior to the Closing Date: (a) liabilities under any criminal laws; (b)
liabilities for punitive, exemplary and/or treble damages based upon intentional
misconduct, recklessness, bad faith or other wrongful conduct; (c) liabilities
under the Racketeer Influenced and Corrupt Organizations (RICO) Act; (d)
liabilities for price-fixing, conspiracy to monopolize, and other similar
antitrust and unfair trade practices or (e) other liabilities of a character
similar to any of the foregoing and arising out of the ordinary course of
business; (viii) any Assumed Liability that arises or arose out of an occurrence
prior to the Closing and that is of a type covered by an insurance policy in
effect at the time of such occurrence as to which Seller is a beneficiary
(except for such liabilities covered solely by an insurance policy that provides
coverage on a "claims-made" basis and in respect of which no claim was made
during the time such policy was in effect), but only to the extent Seller
actually receives the insurance proceeds under such insurance policy; (ix) any
federal and state income taxes, or sales or use taxes, franchise taxes, payroll
taxes and any other taxes and tax liability relating to revenues earned on the
operation of the Business Unit (i) prior to the Filing Date or
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(ii) subsequent to the Filing Date unless such liability is accrued as a
liability in the calculation of Seller's Net Investment as of the Closing Date;
(x) any liabilities or obligations of Seller with respect to employee wage and
benefit obligations to the extent not accrued as a liability in the calculation
of Seller's Net Investment as of the Closing Date; (xi) all attorneys ' and
accountants' fees and expenses and any other fees and expenses incurred by
Seller in connection with the consummation of the transactions contemplated
hereby; and (xii) all professionals' fees and expenses incurred by Seller in
connection with the Chapter 11 case.
"Final Statement" shall have the meaning set forth in Section 2.3(c).
"GAAP" shall mean United States generally accepted accounting principles,
as consistently applied by the Business Unit.
"Governmental Entity" shall mean any federal, state, municipal or local
court, legislature, governmental agency, commission or regulatory authority or
instrumentality.
"Instruments of Assignment and Assumption" shall have the meaning set
forth in Section 2.4(b).
"Intellectual Property" means all (i) the name "Morning Sun" and the
service marks, trademarks, trade names, trade secrets listed on SCHEDULE 2.1(E),
(ii) written know-how and all other similar proprietary data and intellectual
property, and (iii) goodwill associated with the foregoing, owned by Seller and
used in the operation of the Business Unit, except any such intellectual
property constituting an Excluded Asset.
"Inventory" shall mean all inventories of raw materials, supplies, goods
in process and finished goods owned by Seller and intended to be used or sold
exclusively in the operation of the Business Unit.
"JBA Software" means the portion of the operational software used by the
Business Unit and licensed to Seller pursuant to the Agreement between JBA
International, Inc. and Seller.
"XX Xxxxxxx Software" means the general ledger and accounts payable
software licensed to Seller pursuant to the Software License Agreement, dated
June 20, 1995, between X.X. Xxxxxxx & Company and Brazos Sportswear, Inc., as
amended by Attachment A--Licensed Software, dated April 8, 1997, between X.X.
Xxxxxxx Worldwide Solutions Company and Brazos Sportswear, Inc.
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"Lien" shall mean any lien, security interest, pledge, charge or
encumbrance.
"Material Adverse Change" shall mean any change, event or effect (or
series of related changes, events or effects) which, when taken individually or
together, has a material adverse effect on the Purchased Assets.
"Other Contracts" means the contracts, licenses, leases and agreements
identified on SCHEDULE 2.1(D) hereto.
"Permits" shall mean, to the extent transferable, all licenses (other than
licenses of Intellectual Property), permits and authorizations held by Seller
and used by Seller in the operation of the Business Unit.
"Permitted Liens" shall mean:
(a) Liens for taxes and assessments which (i) are not yet due and
payable or (ii) are being contested in good faith;
(b) Materialmen's, mechanics', workers', repairman's, employees' or
other similar Liens arising in the ordinary course of business;
(c) Liens to be released prior to or at Closing;
(d) All rights to consent by, required notices to, filings with, or
other actions by Governmental Entities if the same are customarily
obtained subse quent to sale or conveyance;
(e) Easements and other encumbrances on the Purchased Assets
specifically identified on SCHEDULE 3.3 hereto.
"Person" shall mean any individual, group, corporation, partnership or
other organization or entity (including, without limitation, any Governmental
Entity).
"Procedures Order" shall mean the order of the Bankruptcy Court, dated May
14, 1999, approving, among other things, the Auction Procedures.
"Purchase Order Obligations" shall mean all liabilities and obligations
which have not been performed by Seller as of the Closing Date and which are
attributable to purchase orders which have not been performed and invoiced by
the vendor.
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"Purchase Price" shall have the meaning set forth in Section 2.3(a).
"Purchased Assets" shall have the meaning set forth in Section 2.1(a).
"Records" shall mean all books, records, customer lists and telephone
numbers, account ledgers, sales and promotional literature, files, data,
supplier lists and all other records of Seller relating to the ownership or
operation of the Business Unit, except records which relate solely to Excluded
Assets.
"Sale Order" shall mean the order of the Bankruptcy Court under Sections
105, 363, 365 and 1146 of the Bankruptcy Code approving the sale, assignment,
assumption and transfer of the Purchased Assets free and clear of all Liens,
substantially in the form of EXHIBIT A hereto.
"Seller's Net Investment" shall mean, with respect to each Business Unit,
the book value of (i) the sum of such Business Unit's gross (a) Accounts
Receivable, (b) Inventory, (c) prepaid expenses and deposits, (d) property,
plant, and equipment, and (e) other assets, without regard for reserves, in each
case only to the extent included in the Purchased Assets, minus (ii) the sum of
such Business Unit's (a) postpetition Accounts Payable, (b) postpetition accrued
royalties and (c) other postpetition liabilities and accruals, in each case only
to the extent included in the Accrued Liabilities, all as finally determined
pursuant to Section 2.3(c).
"Seller's Officer's Certificate" shall have the meaning set forth in
Section 6.2(f).
"Software" shall mean Seller's right and license to use the JBA Software,
the PKMS Software for inventory control licensed by Manhattan Associates, Easy
Point form printing software licensed by Formula One Systems, Inc. and EDI
software licensed by Harbinger Corporation.
"Stop-Loss Policy" shall mean the insurance policy issued by Ohio National
Life Insurance Company in favor of the Seller pursuant to which claims in excess
of $75,000 per covered incident are paid by the insurance carrier.
"Tax" or "Taxes" shall mean any and all taxes, levies or other like
assessments (including interest and penalties), including income, transfer,
gross receipts, excise, property, sales, use, payroll and employment taxes,
imposed by the United States, or any state, or local government or subdivision
or agency thereof.
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"Tax Return" shall mean any report or return filed with any federal, state
or local taxing authority with respect to Taxes imposed upon or attributable to
the Purchased Assets.
"Transfer Taxes" shall have the meaning set forth in Section 5.13.
ARTICLE II
SALE AND PURCHASE OF ASSETS
Section 2.1 TRANSFER OF ASSETS.
(a) On the Closing Date and pursuant to the terms and subject to the
conditions of this Agreement, Seller shall sell, assign, convey and deliver to
Buyer, and Buyer shall purchase and accept from Seller, all of Seller's right,
title and interest in and to the Accounts Receivable (other than intercompany
Accounts Receivable), notes receivable (and any guaranties thereof), the
Inventory, the Equipment, the Intellectual Property, all of Seller's claims,
demands and causes of action other than those that Seller may have under Chapter
5 of the Bankruptcy Code, Software, prepaid expenses and all of the other
property, rights and assets of every type and description of Seller owned or
used in the operation of the Business Unit that do not constitute Excluded
Assets; provided that the assignment of the JBA Software shall be subject to the
prior written consent of JBA International, Inc. The assets to be sold,
assigned, conveyed and delivered to Buyer pursuant to this Agreement are
hereinafter referred to as the "Purchased Assets".
(b) On the terms and subject to the conditions of this Agreement,
Seller shall assume and assign to Buyer, and Buyer shall accept the assignment
of and assume, all of Seller' s right, title and interest in the Assumed
Contracts.
(c) Buyer is not acquiring, and Seller shall retain all right, title
and interest in, any Excluded Assets.
(d) On the Closing Date and pursuant to the terms and subject to the
conditions of this Agreement, Seller or its Affiliates shall, to the extent
assignable under applicable law, assign, convey and deliver to Buyer all of
Seller's rights, title and interest in, to and under the Other Contracts. To the
extent reasonably requested by Buyer, Seller shall cooperate with and assist
Buyer's efforts (including, without limitation, efforts to obtain required
consents of third parties) to further perfect the
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assignments, conveyances and deliveries contemplated in the foregoing sentence
and otherwise transfer to Buyer Seller's rights under the Other Contracts.
Section 2.2 ASSUMED LIABILITIES. Buyer shall assume and pay, and shall
hold Seller harmless and indemnify Seller from and against, the Assumed
Liabilities. Buyer shall not assume, and shall be deemed not to have assumed,
the Excluded Liabilities.
Section 2.3 PURCHASE PRICE.
(a) In consideration for the sale and transfer of the Purchased
Assets, Buyer shall assume the Assumed Liabilities and the Assumed Contracts and
shall pay Seller the amount equal to the sum of $13,138,728 (less the amount of
pre-petition Cure Amounts), subject to closing adjustments in accordance with
Section 2.3(b) (the "Purchase Price").
(b) The Purchase Price shall be adjusted as follows:
(i) If the Seller's Net Investment as of the Closing Date is
less than $16,533,339 (the "Minimum Net Investment"), the Purchase Price
shall be reduced by an amount equal to the excess of the Minimum Net
Investment OVER the Seller's Net Investment as of the Closing Date.
(ii) If the Seller's Net Investment as of the Closing Date is
greater than the Minimum Net Investment, the Purchase Price shall be
increased by an amount equal to the excess of Seller's Net Investment as
of the Closing Date OVER the Minimum Net Investment.
(c) Following the Closing Date, Seller and Buyer shall jointly
prepare a statement (the "Final Statement") as to Seller's Net Investment as of
the Closing Date and the post-closing adjustments to the Purchase Price pursuant
to Section 2.3(b) (the "Adjusted Purchase Price"). The Seller's Net Investment
as of the Closing Date and the Adjusted Purchase Price will be determined on a
basis consistent with the June 5, 1999, balance sheet and the related trial
balance (marked to reflect the Purchased Assets and Assumed Liabilities)
previously delivered to Buyer and attached hereto as Exhibit G. For preparation
of the Final Statement, Buyer shall provide Seller with reasonable access to the
Records during normal business hours upon reasonable prior notice. If Seller and
Buyer are unable to agree on the Adjusted Purchase Price within 45 days after
the Closing Date, the determination thereof shall be referred to the Accountants
for resolution, subject to the review and final determination of the
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Xxxxxxxxxx Xxxxx if required. Buyer and Seller shall each pay one-half of any
costs or expenses charged by the Accountants in connection therewith. The
difference between the pre-adjustment Purchase Price and the Adjusted Purchase
Price will be paid in full in cash by Buyer or Seller, as the case may be, on or
before the date five business days following the determination of the Adjusted
Purchase Price pursuant to this Section 2.3(d) (the "Post-Closing Settlement
Date").
Any amount payable hereunder by Seller to Buyer shall constitute an
allowed administrative expense of the Seller's chapter 11 case under section 503
of the Bankruptcy Code entitled to a first priority under section 507(a) of the
Bankruptcy Code.
Section 2.4 CLOSING.
(a) Upon the terms and subject to the conditions of this Agreement,
the consummation of the transactions contemplated by this Agreement (the
"Closing") will take place as soon as practicable following satisfaction (or
waiver, if permissible) of the conditions set forth in Article 6 hereof, at
10:00 a.m., at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other time and place as shall
be mutually agreed upon by the parties, but in any event on or before June 30,
1999. The date on which the Closing occurs is hereinafter referred to as the
"Closing Date."
(b) At the Closing, Seller shall deliver or cause to be delivered to
Buyer the following: (i) duly executed instruments of assignment and assumption
of the Assumed Contracts substantially in the form of EXHIBIT B hereto
("Instruments of Assignment and Assumption"), (ii) duly executed bills of sale
and assignment to Buyer in substantially the form of EXHIBIT C hereto; (iii)
Seller's Officer's Certificate in substantially the form of EXHIBIT D hereto;
(iv) a certified copy of the Sale Order; and (v) such other instruments and
documents as are required by any other provision in this Agreement or are
necessary to convey title to any of the Purchased Assets.
(c) At the Closing, Buyer shall deliver (i) to Seller, 90% of the
Purchase Price, less the sum of (A) the Deposit and (B) any interest earned on
the Deposit from and including the date the Deposit has been deposited by
Skadden, Arps, Slate, Xxxxxxx & Xxxx L.L.P. in an interest bearing account to,
but not including, the Closing Date (the "Closing Amount"), in immediately
available funds by wire transfer to an account or accounts at a United States
bank or banks as specified in writing by Seller at least one business day prior
to the Closing; (ii) into escrow, 10% of the
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Purchase Price to be held in accordance with the Escrow Agreement substantially
in the form of EXHIBIT E hereto; (iii) to Seller, such documents and instruments
as reasonably are required to evidence the assumption of the Assumed
Liabilities; and (iii) to Seller, Buyer's Officer's Certificate in substantially
the form of EXHIBIT F hereto.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
Section 3.1 ORGANIZATION AND AUTHORITY. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Washington. Seller has heretofore made available to Buyer complete and accurate
copies of Seller's articles of organization and by-laws, as currently in effect.
Section 3.2 AUTHORITY RELATIVE TO THIS AGREEMENT. Subject to the entry of
the Sale Order, Seller has full power and authority to execute and deliver this
Agreement, to perform fully its obligations hereunder and to consummate the
transactions contemplated hereby. The execution, delivery and performance of the
Agreement by Seller and the confirmation by Seller of the transactions
contemplated by this Agreement, have been duly and validly authorized by all
necessary action of Seller and Seller's Board of Directors and no other
corporate proceedings on the part of Seller are necessary to authorize this
Agreement or to consummate the transactions contemplated by this Agreement. This
Agreement has been duly and validly executed and delivered by Seller and,
subject to the entry of the Sale Order, constitutes, a valid and binding
obligation of Seller enforceable against it in accordance with the terms hereof.
Section 3.3 TITLE TO ASSETS.
(a) At the Closing, and subject to entry of the Sale Order, Seller
will deliver to Buyer good title to all of the Purchased Assets free and clear
of all Liens, other than Permitted Liens, and, subject to entry of the Sale
Order, the Purchased Assets are transferable to Buyer hereunder without the
approval or consent of, or notice to, any Person.
(b) Seller has not granted to any Person, other than to Buyer
pursuant to this Agreement, any right, title or interest in and to the Purchased
Assets that will not be terminated pursuant to the Sale Order.
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Section 3.4 CONSENTS AND APPROVALS; NO VIOLATIONS. Subject to entry of the
Sale Order, no filing with, and no permit, authorization, consent or approval of
any Governmental Entity is necessary for the consummation by Seller of the
transactions contemplated by this Agreement or the performance of this
Agreement.
Section 3.5 NO MATERIAL ADVERSE CHANGE. Since June 6, 1999, there has been
no Material Adverse Change, and Seller does not know of any such change that is
threatened (it being understood that no representation is hereby made as to any
such threat posed by changes or potential changes in general economic
conditions). Since June 6, 1999, there has been no material destruction or loss
of the Purchased Assets (whether or not covered by insurance).
Section 3.6 BROKERS OR FINDERS. Neither Seller nor any Affiliate of Seller
has retained any agent, broker, investment banker, financial advisor or other
firm or person that is or will be entitled to any broker's or finder's fee or
any other commission or similar fee in connection with any of the transactions
contemplated by this Agreement for which Buyer will be liable.
Section 3.7 INSURANCE. The Purchased Assets and the Business Unit are
adequately insured against fire, liability, product liability, workers'
compensation, vehicular and other liabilities under various policies of general
liability and other forms of insurance (collectively, the "Insurance Policies").
The Insurance Policies are valid and enforceable in accordance with their terms
and are in full force and effect.
Section 3.8 NECESSARY ASSETS. The Purchased Assets include, without
limitation, all real property and related rights and interests and all personal
property of Seller, both tangible and intangible, and Permits necessary to
conduct the business of the Business Unit as it is currently conducted by
Seller, except for the XX Xxxxxxx Software.
Section 3.9 CONTRACTS. SCHEDULE 2.1(B) sets forth a list of all contracts,
agreements, leases and subleases of Seller that are material, individually or in
the aggregate, to the operations of the Business Unit substantially in the
manner conducted on the date hereof, including licenses related to the Software,
except for the XX Xxxxxxx Software, together with the pre-petition Cure Amounts
relating thereto.
Section 3.10 NO SELLER CLAIMS. To the best of Seller's knowledge, neither
Seller nor its Affiliates have any claims, actions or causes of actions against
Buyer, its Affiliates, directors, officers, employees, agents or any former or
present officer of
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Seller, arising out of any act, occurrence, omission, cause, matter, activity,
transaction or other thing whatsoever, which occurred prior to the date hereof
and up to and including the date of execution of this Agreement, except with
respect to any potential claim brought against Buyer for breach of, or failure
to perform its obligations under, this Agreement or any instrument executed
pursuant to this Agreement.
SECTION 3.11 LIMITED WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THIS
ARTICLE, SELLER HAS NOT MADE AND DOES NOT HEREBY MAKE ANY EXPRESS OR IMPLIED
REPRESENTATIONS OR WARRANTIES OF ANY NATURE, INCLUDING WITH RESPECT TO THE
CONDITION, QUALITY, QUANTITY, MERCHANTABILITY OR SUITABILITY OF THE PURCHASED
ASSETS.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
Section 4.1 ORGANIZATION. Buyer is a Delaware corporation, duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Buyer has heretofore made available to Seller complete and correct copies of
Buyer's articles of organization and regulations, as currently in effect.
Section 4.2 AUTHORITY RELATIVE TO THIS AGREEMENT. Buyer has full power and
authority to execute and deliver this Agreement, to perform fully its
obligations hereunder and to consummate the transactions contemplated by this
Agreement. The execution, delivery and performance of this Agreement by Buyer
and the consummation by Buyer of the transactions contemplated by this Agreement
have been duly and validly authorized by all necessary action of Buyer and
Buyer's board of directors and no other corporate proceedings on the part of
Buyer are necessary to authorize this Agreement or to consummate the
transactions contemplated by this Agreement. This Agreement has been duly and
validly executed and delivered by Buyer and constitutes a valid and binding
obligation of Buyer, enforceable against Buyer in accordance with its terms.
Section 4.3 CONSENTS AND APPROVALS; NO VIOLATIONS. Subject to entry of the
Sale Order, no filing with, and no permit, authorization, consent or approval of
any Governmental Entity is necessary for the consummation by Buyer of the
transactions contemplated by this Agreement. Neither the execution and delivery
of this Agreement by Buyer nor the consummation by it of the transactions
contemplated by this Agreement nor compliance by it with any of the provisions
hereof will (i) conflict with or result in any breach of any provision of the
articles of organization or regulations of
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Buyer, (ii) result in a violation or breach of, or constitute (with or without
due notice or lapse of time or both) a default (or give rise to any right of
termination, cancellation or acceleration) under, any of the terms, conditions
or provisions of any note, bond, mortgage, indenture, contract, agreement,
permit, license, lease, purchase order, sales order, arrangement or other
commitment or obligation to which Buyer is a party or by which Buyer or any of
its properties or assets may be bound or (iii) violate any order, writ,
injunction, decree, statute, treaty, rule or regulation applicable to Buyer,
except in the case of clauses (ii) or (iii) for violations, breaches or defaults
which would not, in the aggregate, prevent or delay the consummation of the
transactions contemplated by this Agreement.
Section 4.4 BROKERS OR FINDERS. Except for Three Cities Research, Inc.,
neither Buyer nor any Affiliate of Buyer has retained any agent, broker,
investment banker, financial advisor or other firm or person that is or will be
entitled to any broker's or finder's fee or any other commission or similar fee
in connection with any of the transactions contemplated by this Agreement.
Section 4.5 FINANCING. On the Closing Date, Buyer will have unrestricted
funds on hand or a committed line or lines of credit sufficient to consummate
the transactions contemplated by this Agreement.
Section 4.6 NO LITIGATION. As of the date hereof, there is no claim,
action, proceeding pending or, to the knowledge of Buyer, threatened against
Buyer, nor is there outstanding any writ, order, decree or injunction applicable
to Buyer that (i) calls into question the authority or right of Buyer to enter
into this Agreement and consummate the transactions contemplated hereby, or (ii)
would otherwise prevent or delay the transactions contemplated by this
Agreement.
Section 4.7 ACKNOWLEDGMENT. Buyer acknowledges and represents that, except
for the specific representations and warranties contained in this Agreement,
Seller has not made and will not make any express or implied representations or
warranties of any nature with respect to the condition, quality, quantity or
suitability of the Purchased Assets. Buyer further acknowledges and represents
that it (i) is agreeing to purchase the Purchased Assets on a "where is" and "as
is" basis, subject to the specific representations and warranties contained in
this Agreement, (ii) has had an opportunity to review the Purchased Assets and
documents relating thereto, (iii) is relying solely on its own independent
review, investigation and inspection of such documents and the Purchased Assets,
and (iv) is subject to the terms of the Auction Procedures set forth in the
Procedures Order, including, but not limited to, the
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provisions for the forfeiture of Buyers' Deposit in the event that Buyer fails
to consummate the transactions contemplated by this Agreement.
Section 4.8 NO COLLUSION. Buyer acknowledges and represents that the
Purchase Price payable by Buyer pursuant to this Agreement is not controlled by
any agreement between or among Buyer and any potential bidder for the Purchased
Assets, and that Buyer is not a party to any collusive agreement or arrangement
of the kind prohibited by Section 363(n) of the Bankruptcy Code.
Section 4.9 NO BUYER CLAIMS. To the best of Buyer's knowledge, neither
Buyer nor any of its Affiliates have any claims, actions or causes of actions
against Seller, Brazos Sportswear, Inc., or any of their respective Affiliates,
subsidiaries, representatives, directors, officers, employees, and agents,
arising out of any act, occurrence, omission, cause, matter, activity,
transaction or other thing whatsoever, which occurred prior to the date hereof
and up to and including the date or execution of this Agreement, except with
respect to any potential claim brought against Seller for breach of, or failure
to perform its obligations under, this Agreement or any instrument executed
pursuant to this Agreement.
Section 4.10 LIMITED WARRANTIES. Except as expressly provided in this
Article, Buyer has not made and does not hereby make any express or implied
representations or warranties of any nature.
ARTICLE V
COVENANTS
Section 5.1 CONTINUED EFFECTIVENESS OF REPRESENTATIONS AND WARRANTIES OF
SELLERS. From the date hereof through the Closing Date, Seller shall use
commercially reasonable efforts to continue to have the representations and
warranties contained in Article III be true and correct on and as of the Closing
Date as if made on and as of the Closing Date. Seller shall promptly give Buyer
notice of any event, condition or circumstance that occurs after the date hereof
that would have constituted a violation or breach of any representation,
warranty or covenant contained in this Agreement if such event, condition or
circumstances had occurred or existed, on or prior to the date hereof and had
not otherwise been disclosed to Buyer.
Section 5.2 CONDUCT OF BUSINESS.
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(a) From the date hereof through the Closing Date, Seller shall
operate and fund the Business Unit in substantially the same manner as currently
being conducted and funded and shall use commercially reasonable efforts to
maintain and repair, as necessary, the Purchased Assets.
(b) From the date hereof through the Closing Date, Seller shall not,
without Buyer's prior written approval, dispose of any Purchased Assets except
Inventory in the ordinary course of its business, or permit to exist any Lien,
other than a Permitted Lien, on any Purchased Asset.
(c) From the date hereof through the Closing Date, Seller shall not,
without Buyer's prior written approval, make any loan or advance to any of the
officers, employees, consultants, agents or other representatives of Seller
(other than travel, xxxxx cash and other similar advances made in the ordinary
course of business), or enter into any transaction, arrangements or agreements
with any Affiliates.
(d) Buyer shall have the right to have its representatives present
at Seller's business locations during normal business hours, and Seller agrees
to make its representatives reasonably available during normal business hours,
for consultation with respect to the conduct of the Business Unit by Seller
between the date hereof through the Closing Date.
Section 5.3 INSURANCE. From the date hereof through the Closing Date,
Seller shall maintain in force (including necessary renewals thereof) the
Insurance Policies, except to the extent that they may be replaced with policies
appropriate to insure the Business Unit or any of the Purchased Assets to the
same extent as currently issued.
Section 5.4 LITIGATION. From the date hereof through the Closing Date,
Seller shall promptly notify Buyer of any claims or proceedings of which
officers of Brazos Sportswear, Inc. are aware and that, after the date hereof,
are threatened or commenced against Seller or against any officer, director,
employee, consultant, agent, shareholder or other representative of Seller with
respect to the Purchased Assets or the Business Unit.
Section 5.5 ACCESS TO INFORMATION. From the date hereof through the
Closing Date, Seller shall make available to Buyer and its representatives, all
relevant books, records and other documents concerning the Purchased Assets and
the Business Unit. Buyer shall be entitled, through its representatives, to make
such investigation of the Purchased Assets and the Business Unit as Buyer
wishes. To allow Buyer to make such
16
business, accounting and legal review, examination or investigation as it may
wish of the Purchased Assets and the Business Unit, Seller shall furnish the
representatives of Buyer during such period with all such information and copies
of such documents concerning the Business Unit as such representatives may
reasonably request and cause its officers, employees, consultants, agents,
accountants and attorneys to cooperate fully with such representatives in
connection with such review and examination and to make full disclosure to Buyer
of all material facts affecting the Purchased Assets or the Business Unit.
Section 5.6 TAX RETURN AND FILINGS; PAYMENT OF TAXES. Seller shall prepare
all of its Tax Returns for periods ending on or prior to the Closing Date.
Seller shall be responsible for paying all of its Taxes for periods ending on or
prior to the Closing Date, except to the extent that such Taxes are included in
calculation of Seller's Net Investment as of the Closing Date.
Section 5.7 BULK SALES. Each of the parties hereto waives compliance with
any applicable provisions of the Uniform Commercial Code Article 6 (Bulk Sales
or Bulk Transfers) or analogous provisions of law, as adopted in the states in
which the Purchased Assets are located as such provisions may apply to the
transactions contemplated by this Agreement.
Section 5.8 CERTAIN PAYROLL WITHHOLDING MATTERS. Seller agrees to transfer
to Buyer any records relating to withholding and payment of income and
unemployment taxes (federal, state, and local) and FICA taxes with respect to
wages paid to Continuing Employees by Seller during the calendar year 1999.
Buyer agrees to provide the Continuing Employees with Forms W-2, Wage and Tax
Statement, for the calendar year 1999 setting forth the wages paid and taxes
withheld with respect to the Continuing Employees for calendar year 1999 by
Seller and the Buyer as predecessor and successor employers, respectively, as
provided by Section 5 of Revenue Procedure 84-77.
Section 5.9 REASONABLE EFFORTS. Upon the terms and subject to the
conditions of this Agreement and any order of the Bankruptcy Court, each of the
parties hereto agrees to use its reasonable efforts to take, or cause to be
taken, all actions, and to do, or cause to be done, all things necessary or
advisable under applicable laws and regulations and consistent with Seller's
duties as a debtor-in-possession to consummate and make effective the
transactions contemplated by this Agreement as promptly as practicable,
including without limitation: (i) making appropriate filings with the Bankruptcy
Court and taking such other actions reasonably necessary in connection with the
application for the Sale Order; and (ii) preparing and filing all other forms,
17
registrations, consents and notices required to be filed to consummate the
trans-actions contemplated by this Agreement.
Section 5.10 FEES AND EXPENSES. Except as otherwise provided in this
Agreement or as ordered by the Bankruptcy Court, whether or not the transactions
contemplated by this Agreement are consummated, each of Seller on the one hand
and Buyer on the other hand shall bear its own fees and expenses incurred in
connection with the transactions contemplated by this Agreement.
Section 5.11 SUBMISSION FOR COURT APPROVAL. Seller shall submit this
Agreement for the approval of the Bankruptcy Court, including approval of the
assumption and assignment of the Assumed Contracts and the assumption of the
Assumed Liabilities, as promptly as practicable after the date hereof. Buyer
shall cooperate with Seller in obtaining such Bankruptcy Court approval.
Section 5.12 BUSINESS RECORDS. Buyer shall have the right to receive
copies of all Records related to the Purchased Assets.
Section 5.13 TRANSFER TAXES. All excise, sales, use, transfer (including
real property transfer or gains), stamp, documentary, filing, recordation and
other similar taxes together with any interest in respect of such additions or
penalties ("Transfer Taxes") resulting from the transactions effected pursuant
to this Agreement, if any, shall be borne by Seller.
Section 5.14 ADEQUATE ASSURANCES. Buyer covenants and agrees to provide
adequate assurances of future performance, as required under Section
365(f)(2)(B) of the Bankruptcy Code, under any and all Assumed Contracts. Such
adequate assurances shall be provided by Buyer at the xxxx Xxxxxx assumes and
assigns such Contracts under applicable bankruptcy law, or at such other time
designated by order of the Bankruptcy Court. Buyer's duties under this Section
5.14 shall survive the Closing Date.
Section 5.15 CONFIDENTIALITY. Seller will require any other bidder for the
Purchased Assets who obtains confidential information with respect to the
Purchased Assets or the Business Unit to agree in writing to maintain such
information in confidence, and Seller's rights under such agreements shall be
assigned to Buyer at the Closing, but only to the extent of Seller's right to
enforce such agreements as they relate to information of Seller but not as to
other entities.
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Section 5.16 NOTICE OF OTHER BIDS. Seller shall advise Buyer in the event
Seller receives any other bids for the Purchased Assets in accordance with the
terms of the Procedures Order.
Section 5.17 XX XXXXXXX SOFTWARE. Until 60 days after the Closing Date
(the "Access Period") subject to the consent of X.X. Xxxxxxx World Solutions
Company, Seller shall provide Buyer with reasonable access during normal
business hours to the XX Xxxxxxx Software for use solely with respect to Buyer's
operation of the Purchased Assets. Buyer shall pay Seller a fee of $1,000 per
month during the Access Period, prorated for any partial month of the Access
Period, for use of the XX Xxxxxxx Software, which fee shall be payable in
advance at Closing and on or before the first day of each calendar month during
the Access Period.
Section 5.18 USE OF NAME. No later than the day following the Closing
Date, Seller shall not use any Intellectual Property incorporating "Morning Sun"
or any other name, xxxx, logo, trade name or trademark used by Seller with
respect to the Business Unit and listed on SCHEDULE 2.1(E).
Section 5.19 FURTHER ASSURANCES. In addition to the provisions of this
Agreement, from time to time after the Closing Date, Seller and Buyer shall use
all commercially reasonable efforts to execute and deliver such other
instruments of conveyance, transfer or assumption, as the case may be, and take
such other action as may be reasonably requested to implement more effectively
the conveyance and transfer of the Purchased Assets to Buyer and the assumption
of the Assumed Liabilities by Buyer.
Section 5.20 INTERIM GROUP HEALTH MATTERS. From the Closing Date until and
including June 30, 1999, all Continuing Employees (and their dependents), as
well as all persons who are receiving, or are entitled to receive, coverage
under Section 4980B of the Internal Revenue Code or Section 607(l) or 609 of
ERISA and related regulations (relating to the benefit continuation rights
imposed by "COBRA" or qualified medical child support orders) or equivalent
state laws (collectively referred to as the "COBRA Beneficiaries"), will
continue to be covered by Seller's existing self-insured group health and group
dental plans. Buyer hereby agrees to pay directly all charges with respect to
all group health and group dental claims incurred on behalf of the Continuing
Employees (and their dependents) and the COBRA Beneficiaries during such period.
A claim will be deemed "incurred" during such period if the services which give
rise to such claim are rendered during such period. For purposes hereof, Buyer
will not be obligated to pay any amounts which are reimbursed to Seller pursuant
to the Stop-Loss
19
Policy. In the event Seller pays any such charges, Buyer will reimburse Seller
for all such charges paid by Seller within five days after Seller's written
request therefor and will pay interest on any amount not paid within any such
five-day period at the rate of ten percent per annum from the date of Seller's
written request for such reimbursement until such reimbursement is made. Once
Buyer adopts its own group health and group dental coverage for any employees,
Buyer will offer to each Continuing Employee (and their dependents) the right to
participate in Buyer's group health plan and also extend coverage to all COBRA
Beneficiaries for the remainder of the continuation period.
ARTICLE VI
CONDITIONS
Section 6.1 CONDITIONS TO EACH PARTY'S OBLIGATIONS. The respective
obligations of each party to effect the transactions contemplated by this
Agreement shall be subject to the satisfaction at or prior to the Closing of the
following conditions:
(a) There shall not be in effect any order of any Governmental
Entity staying the consummation of the transactions contemplated by this
Agreement.
(b) The Bankruptcy Court shall have entered the Sale Order, on or
before June 21, 1999, which shall have authorized Seller to convey to Buyer all
of its right, title and interest in and to the Purchased Assets free and clear
of all Liens, other than Permitted Liens, and the Bankruptcy Court shall have
approved the assumption and the assignment of the Assumed Contracts and Assumed
Liabilities as contemplated hereby.
(c) All approvals from any Governmental Entity required for the
lawful consummation of the Closing shall have been obtained.
Section 6.2 CONDITIONS TO OBLIGATIONS OF BUYER. The obligation of Buyer to
effect the transactions contemplated by this Agreement shall be further subject
to the satisfaction at or prior to the Closing of the following conditions:
(a) All approvals from any Governmental Entity that may be required
in connection with the performance by Seller of its obligations under this
Agreement shall have been obtained, other than approvals which are minor in
nature and where the failure to obtain such approvals would not, individually or
in the aggregate, reasonably be expected to interfere in any material respect
with the operation of the Business Unit or the ownership of the Purchased Assets
by Buyer, and no modification to any such
20
Assumed Contract shall have been made in connection with the obtaining of such
approvals without the written consent of Buyer, which consent shall not be
unreasonably withheld, and the approval of X.X. Xxxxxxx to the provisions of
Section 5.17 shall have been obtained.
(b) No Material Adverse Change will have occurred since the date of
this Agreement.
(c) Seller shall have executed and delivered to Buyer such further
instruments of sale, transfer, conveyance, assignment or delivery covering the
Purchased Assets or any part thereof as Buyer may reasonably require to assure
the full and effective sale, transfer conveyance, assignment or delivery to it
of the Purchased Assets.
(d) The representations and warranties of Seller set forth in
Article III shall be true and correct in all material respects as of the Closing
Date with the same effect as though such representations and warranties had been
made at and as of the Closing Date, other than representations and warranties
that expressly speak as of a specific date (which need only be true and correct
as of such date).
(e) Seller shall have performed in all material respects all
obligations required to be performed by it under this Agreement at or prior to
the Closing.
(f) Buyer shall have received from Seller a certificate executed by
an officer of Seller, dated the Closing Date, to the effect of (d) and (e) above
(the "Seller's Officer's Certificate").
(g) Buyer shall be satisfied with the operation and functioning of
Seller's warehousing system and related software, and Buyer and Seller shall
have agreed upon an adjustment to the Purchase Price reflecting costs associated
with recent warehousing systems software improvements.
Section 6.3 CONDITIONS TO OBLIGATIONS OF SELLER. The obligation of Seller
to effect the transactions contemplated by this Agreement shall be further
subject to the satisfaction at or prior to the Closing of the following
conditions:
(a) The representations and warranties of Buyer set forth in Article
IV shall be true and correct in all material respects as of the Closing Date
with the same effect as though such representations and warranties had been made
at and as of the
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Closing Date, other than representations and warranties that speak as of a
specific date (which need only be true and correct in all material respects as
of such date).
(b) Buyer shall have performed in all material respects all
obligations required to be per-formed by them under this Agreement at or prior
to the Closing.
(c) Seller shall have received from Buyer a certificate executed by
an officer of Buyer, dated the Closing Date, to the effect of (a) and (b) above
(the "Buyer' s Officer's Certificate").
ARTICLE VII
TERMINATION AND AMENDMENT
Section 7.1 TERMINATION. This Agreement may be terminated at any time
prior to the Closing by:
(a) Mutual consent of Seller and Buyer.
(b) Either Seller or Buyer if the Closing shall not have occurred on
or before June 30, 1999 (unless the failure to consummate the Closing by such
date shall be due to the failure of the party seeking to terminate this
Agreement to have fulfilled any of its obligations under this Agreement).
(c) Either Seller or Buyer if any court of competent jurisdiction or
other competent Governmental Entity shall have issued a statute, decree or
injunction permanently restraining, enjoining or otherwise prohibiting the
transactions contem plated by this Agreement and such statute, decree or
injunction shall have become final and nonappealable.
(d) By Buyer if Seller has materially breached any of Seller's
representations, warranties, covenants or other terms of this Agreement.
(e) By Buyer if any condition to the obligation of Buyer set forth
in Sections 6.1 or 6.2 hereof has not been satisfied on or before the date
specified in such condition, or if no such date is specified, June 30, 1999,
unless the failure of such condition to be satisfied is due to a breach by Buyer
of its obligations hereunder.
(f) By Seller if Buyer has materially breached any of Buyer's
representations, warranties, covenants or other terms of this Agreement.
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(g) By Seller if the Bankruptcy Court approves the sale by Seller of
all of the Purchased Assets to a third party pursuant to a better or higher
offer submitted by such third party in accordance with the Auction Procedures to
purchase all of the Purchased Assets
(h) By Seller if any condition to the obligation of Seller set forth
in Sections 6.1 or 6.3 hereof has not been satisfied on or before the date
specified in such condition, or if no such date is specified, June 30, 1999,
unless the failure of such condition to be satisfied is due to a breach by
Seller of its obligations hereunder.
Section 7.2 EFFECT OF TERMINATION. In the event of the termination and
abandonment of this Agreement pursuant to Section 7.0 hereof, this Agreement
shall terminate without any liability on the part of any party hereto or its
affiliates, or their respective directors, officers or stockholders, other than
(i) the provisions of Section 5.10 hereof and (ii) if applicable, the provisions
of the Procedures Order governing forfeiture of Buyer's Deposit. Nothing
contained in this Section 7.2 shall relieve any party from liability for any
breach of this Agreement. If this Agreement is terminated for any reason other
than a material breach by Buyer of any of Buyer's representations, warranties,
covenants or other terms of this Agreement, Buyer's Deposit shall be returned
promptly to Buyer with all interest earned thereon.
Section 7.3 AMENDMENT. This Agreement may be amend-ed at any time by
Seller and Buyer but only by an instrument in writing signed on behalf of Seller
and Buyer.
Section 7.4 EXTENSION; WAIVER. At any time prior to the Closing, Seller,
on the one hand, and Buyer, on the other hand, may (i) extend the time for the
performance of any of the obligations or acts of the other, (ii) waive any
inaccuracies in the representations and warranties of the other contained herein
or in any document delivered pursuant hereto; (iii) waive compliance with any of
the agreements of the other contained herein or (iv) waive any condition to its
obligations hereunder. Any agreement on the part of a party hereto to any such
extension or waiver shall be valid only if set forth in a written instrument
signed on behalf of such party.
ARTICLE VIII
MISCELLANEOUS
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Section 8.1 SURVIVAL. All representations and warranties of the parties
contained in this Agreement, including the Schedules hereto, or any certificate
delivered in connection herewith shall not survive the Closing.
Section 8.2 NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed given upon receipt if delivered personally, or
when sent if mailed by registered or certified mail (return receipt requested)
or transmitted by facsimile (with confirmation of transmittal) to the parties at
the following addresses (or at such other address for a party as shall be
specified by like notice):
(a) if to Seller, to:
Brazos Sportswear, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
Attn: F. Xxxxxxx Xxxxxxxx
with copies to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxxx X. Gatting, Esq.
- and-
Xxxxxx & Xxxxxx, L.L.P.
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxx, Xx., Esq.
(b) if to Buyer, to:
New Solarco, Inc.
c/o Three Cities Research, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attn: J. Xxxxxxx Xxxxx
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with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
Attn: Xxxx X. Xxxxxxxx, Esq.
Section 8.3 DESCRIPTIVE HEADINGS. The descriptive headings herein are
inserted for convenience only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement.
Section 8.4 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement.
Section 8.5 ENTIRE AGREEMENT. This Agreement, the exhibits and schedules
hereto and the Related Instruments constitute the entire agreement, and
supersede all prior agreements and understandings, both written and oral,
between the par-ties with respect to the subject matter hereof except for any
confidentiality agreements between the parties.
Section 8.6 GOVERNING LAW. This Agreement shall be governed and construed
in accordance with the laws of the State of Delaware and applicable federal law,
without regard to any applicable principles of conflicts of law.
Section 8.7 ASSIGNMENT. This Agreement may not be assigned by any party
hereto without the written consent of the other parties, except that Buyer may
assign its rights hereunder to any of its Affiliates.
Section 8.8 PARTIES IN INTEREST. This Agreement shall be binding upon and
inure solely to the bene-fit of the parties here-to their successors and
permitted assigns, including, without limitation, any trustee or other
responsible person appointed or elected in a bankruptcy case for Seller under
any chapter of the Bankruptcy Code, and nothing in this Agreement, express or
implied, is intended to or shall confer upon any
25
other person or persons any rights, benefits or remedies of any nature
whatsoever under or by reason of this Agreement.
Section 8.9 SEVERABILITY. This Agreement shall be deemed severable; the
invalidity or unenforceability of any term or provision of this Agreement shall
not affect the validity or enforceability of this Agreement or of any other term
hereof, which shall remain in full force and effect.
Section 8.10 EXCLUSIVE JURISDICTION. The parties hereby agree that,
without limitation of any party's right to appeal any order of the Bankruptcy
Court, (I) the Bankruptcy Court shall retain exclusive jurisdiction to enforce
the terms of this Agreement and to decide any claims or disputes which may arise
or result from, or be connected with this Agreement, any breach or default
hereunder, or the transactions contemplated herein, and (ii) any and all claims,
actions, causes of action, suits and proceedings relating to the foregoing shall
be filed and maintained only in the Bankruptcy Court, and the parties hereby
consent and submit to the jurisdiction of the Bankruptcy Court and shall receive
notices at such locations as indicated in Section 8.2 hereof.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first written above.
MORNING SUN, INC.
By:/s/XXXXXXX XXXXXXXX
Name: XXXXXXX XXXXXXXX
Title: CEO
NEW SOLARCO, INC.
By:/s/J. XXXXXXX XXXXX
Name: J. XXXXXXX XXXXX
Title: PRESIDENT
27
