EXHIBIT 99.8
XXXX OF SALE, ASSIGNMENT
AND ASSUMPTION AGREEMENT
THIS XXXX OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT is executed on this
25th day of October, 2001 (the "Effective Date"), by and between CALIBER
LEARNING NETWORK, INC., a Maryland corporation, as debtor in possession
("Seller"), and SYLVAN LEARNING SYSTEMS, INC., a Maryland corporation ("Buyer").
WHEREAS, Seller is a debtor in possession under the Chapter 11 bankruptcy
case pending in the United States Bankruptcy Court for the District of Maryland
(the "Bankruptcy Court"), In re Caliber Learning Network, Inc., Bankruptcy Case
No. 01-59533-JS (the "Bankruptcy Case"); and
WHEREAS, Seller and Buyer are parties to that certain Asset Purchase
Agreement dated as of August 13, 2001, as amended by that certain (i) Amendment
to Asset Purchase Agreement dated as of August 23, 2001, (ii) Second Amendment
to Asset Purchase Agreement dated as of September 4, 2001, (iii) Third Amendment
to Asset Purchase Agreement dated as of September 5, 2001, (iv) Fourth Amendment
to Asset Purchase Agreement dated as of September 6, 2001, and (v) Fifth
Amendment to Asset Purchase Agreement dated as of September 17, 2001 (the
"Purchase Agreement"), pursuant to which Seller has agreed to sell to Buyer or
its assigns, and Buyer has agreed to purchase (or cause its assigns to
purchase), certain assets of Seller and, in connection therewith, Buyer has
agreed to assume (or cause its assigns to assume) certain liabilities of Seller
(collectively, the "Purchase Transaction"); and
WHEREAS, the Bankruptcy Court entered an Order in the Bankruptcy Case on
October 3, 2001, authorizing and approving the Purchase Transaction pursuant to
the Purchase Agreement.
NOW THEREFORE, pursuant to the Purchase Agreement, and for the
consideration therein set forth, the parties hereto take the following actions
and make the following agreements:
1. CAPITALIZED TERMS. Capitalized terms used herein without definitions
shall have the meanings ascribed in the Purchase Agreement.
2. SALE AND ASSIGNMENT. Seller hereby sells, transfers, conveys, assigns,
grants and delivers to Buyer and its successors and assigns, absolutely and
irrevocably, free and clear of any and all Liabilities, all of Seller's right,
title and interest in and to the Purchased Assets, including, without
limitation:
(i) all FF&E listed on Schedule A attached hereto and made a part
hereof (which Schedule A shall supercede Schedule 2.1(a) of the Purchase
Agreement);
(ii) all Purchased Contracts listed on Schedule B attached hereto and
made a part hereof (which Schedule B shall supercede Schedule 2.1(d) of the
Purchase Agreement); and
(iii) all Seller Registered Intellectual Property listed on Schedule C
attached hereto and made a part hereof (which Schedule C shall supercede
Schedule 4.1.10(a) of the Purchase Agreement).
3. ASSUMPTION. Buyer hereby assumes and agrees to pay, honor and discharge,
when due in the ordinary course of business, Seller's obligations under the
Purchased Contracts listed on Schedule B hereof, solely to the extent such
obligations arise after 12:01 a.m., Baltimore, Maryland time on the Effective
Date.
4. INCORPORATION OF TERMS OF PURCHASE AGREEMENT. This Xxxx of Sale,
Assignment and Assumption Agreement does not, nor shall it be deemed to,
supersede (except as otherwise provided in Sections 2(i), (ii) and (iii)
hereof), extinguish or merge any of the provisions set forth in the Purchase
Agreement, all of which are incorporated herein by reference, and which
provisions shall remain in full force and effect as provided therein.
5. ENTIRE AGREEMENT, AMENDMENT AND WAIVERS. This Xxxx of Sale, Assignment
and Assumption Agreement and the Purchase Agreement, together with the exhibits
and schedules attached thereto, constitute the entire agreement between the
parties pertaining to the subject matter hereof, and supersede any and all prior
and contemporaneous agreements, understandings, negotiations and discussions of
the parties, whether oral or written. No supplement, modification or waiver of
this Xxxx of Sale, Assignment and Assumption Agreement shall be binding unless
executed in writing by the party to be bound thereby. No waiver of any of the
provisions of this Xxxx of Sale, Assignment and Assumption Agreement shall be
deemed or shall constitute a waiver of any other provision hereof (whether or
not similar), nor shall such waiver constitute a continuing waiver unless
otherwise expressly provided.
6. BINDING AGREEMENT. This Xxxx of Sale, Assignment and Assumption
Agreement constitutes the legal, valid and binding obligations of each party
enforceable in accordance with its terms and shall be binding upon and inure to
the benefit of the parties and their respective successors and assigns.
7. GOVERNING LAW. This Xxxx of Sale, Assignment and Assumption Agreement
shall be governed by, and construed in accordance with, the laws of the State of
Maryland, without regard to principles of conflict of laws.
8. COUNTERPARTS. This Xxxx of Sale, Assignment and Assumption Agreement may
be executed in one or more counterparts, each of which shall be deemed an
original, and all of which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties have caused this Xxxx of Sale, Assignment
and Assumption Agreement to be executed by their duly authorized officers as of
the Effective Date.
WITNESS/ATTEST: CALIBER LEARNING NETWORK, INC.,
as debtor in possession
By: /s/ XXXX X. XXXXXX (SEAL)
-------------------------------- --------------------------------
Name: Xxxx X. Xxxxxx
Title: President, Chief Executive
Officer
SYLVAN LEARNING SYSTEMS, INC.
By: /s/ XXXXXX X. XXXXX (SEAL)
-------------------------------- --------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
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XXXX OF SALE, ASSIGNMENT
AND ASSUMPTION AGREEMENT
Schedule A
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FF&E
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XXXX OF SALE, ASSIGNMENT
AND ASSUMPTION AGREEMENT
Schedule B
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Purchased Contracts
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XXXX OF SALE, ASSIGNMENT
AND ASSUMPTION AGREEMENT
Schedule C
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Tradenames and Trademarks
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Patents
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Domain Names
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