EXHIBIT 10.1
AMENDMENT TO ASSET
PURCHASE AGREEMENT
This AMENDMENT TO ASSET PURCHASE AGREEMENT (this "AMENDMENT") is dated
as of September 20, 1999 and entered into by and between Marker International, a
Utah corporation and a debtor and debtor-in-possession ("SELLER"), and Marker
International GmbH, a Swiss GmbH ("BUYER"), and is made with reference to that
certain Asset Purchase Agreement dated as of July 30, 1999 (the "PURCHASE
AGREEMENT"), by and between Seller (prior to becoming a debtor and
debtor-in-possession) and Buyer. Capitalized terms used herein without
definition shall have the same meanings herein as set forth in the Purchase
Agreement.
RECITALS
WHEREAS, as contemplated by the Purchase Agreement, Seller and two of
its wholly-owned Subsidiaries, DNR North America, Inc. and DNR USA, Inc., each
filed a voluntary petition under Chapter 11 of the Bankruptcy Code on August 19,
1999 (the "PETITION DATE") with the United States Bankruptcy Court for the
District of Delaware (the "BANKRUPTCY COURT");
WHEREAS, pursuant to the terms of the Purchase Agreement it is a
condition to Closing that Seller cause certain Orders to be entered by the
Bankruptcy Court on or before the times set forth in the Purchase Agreement, in
each case in form and substance reasonably satisfactory to Buyer; and
WHEREAS, Seller and Buyer desire to amend the Purchase Agreement to
provide, among other things, Seller with additional time to cause the Orders set
forth below to be entered by the Bankruptcy Court.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO THE PURCHASE AGREEMENT
1.1 AMENDMENTS TO SUBSECTION 1.1: PROVISIONS RELATING TO DEFINED TERMS
Subsection 1.1 of the Purchase Agreement is hereby amended as follows:
A. The definition of "Breakup Fee Order" is hereby amended by deleting
it in its entirety and substituting the following therefor:
"'Breakup Fee Order' means the Order of the Bankruptcy Court entered
on September 14, 1999 which grants Buyer and its Affiliates, among
other things, an administrative priority claim for the Breakup Fee,
the Reimbursement Expenses and reimbursement and indemnification
obligations under Section 11.14(c) and approves the payment thereof to
Buyer and its Affiliates."
B. The definition of "Confirmation Order" is hereby amended by
deleting at the end thereof the clause: "and shall be entered by the Bankruptcy
Court no later than fifty-five (55) days after the Petition Date".
C. The definition of "Disclosure Statement Order" is hereby amended by
deleting at the end thereof the clause: "and shall be entered by the Bankruptcy
Court no later than thirty (30) days after the Petition Date".
1.2 AMENDMENT TO SUBSECTION 4.8: SELLER'S REPRESENTATIONS AND
WARRANTIES: AUTHORIZATION; NO CONFLICTS
Subsection 4.8 of the Purchase Agreement is hereby amended by deleting
therefrom the phrase "other than the super-priority claim of Buyer under the
Breakup Fee Order and Section 364(c)(1) of the Bankruptcy Code" and substituting
therefor:
"other than the administrative priority claim of Buyer under the
Breakup Fee Order"
1.3 AMENDMENT TO SUBSECTION 6.3: PRE-CLOSING COVENANTS: CONDUCT OF
BUSINESS
Subsection 6.3 of the Purchase Agreement is hereby amended by deleting
the phrase "shall be junior in priority" in clause (e), clause (l) and in the
last paragraph of such subsection and substituting therefor (in each instance):
"shall in no event be senior in priority".
1.4 AMENDMENT TO SUBSECTION 6.8(B)(II): SELLER'S COVENANTS: CHAPTER 11
CASE
Subsection 6.8(b)(ii) of the Purchase Agreement is hereby amended by
deleting therefrom the phrase "fifteen (15) business days after the Petition
Date" and substituting therefor:
"September 14, 1999 or such later date as Buyer may, in its sole and
absolute discretion, expressly consent to in writing or on the record
in the Bankruptcy Court"
1.5 AMENDMENTS TO SUBSECTION 8.2(N)(I): CONDITIONS TO OBLIGATIONS OF
BUYER: CHAPTER 11 CASE
Subsection 8.2(n)(i) of the Purchase Agreement is hereby amended by:
A. deleting clause (A) of such subsection in its entirety and
substituting the following therefor:
"the Breakup Fee Order shall have been entered by the Bankruptcy Court
no later than September 14, 1999;";
B. deleting the phrase "thirty (30) days after the Petition Date" from
clause (C) of such subsection and substituting therefor:
"September 22, 1999 or such later date as Buyer may, in its sole and
absolute discretion, expressly consent to in writing or on the record
in the Bankruptcy Court"; and
C. deleting the phrase "fifty-five (55) days after the Petition Date"
from clause (D) of such subsection and substituting therefor:
"October 27, 1999 or such later date as Buyer may, in its sole and
absolute discretion, expressly consent to in writing or on the record
in the Bankruptcy Court (provided that such later date shall in no
event be after November 30, 1999),".
SECTION 2. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE PURCHASE AGREEMENT.
(i) On and after the date hereof, each reference in the Purchase
Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import referring to the Purchase Agreement shall mean
and be a reference to the Purchase Agreement as amended hereby.
(ii) Except as specifically amended by this Amendment, the Purchase
Agreement shall remain in full force and effect and is hereby ratified
and confirmed.
(iii) The execution, delivery and performance of this Amendment shall
not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of
Buyer under, the Purchase Agreement.
B. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. This Amendment shall become effective upon the execution of a
counterpart hereof by Seller and Buyer and receipt by Seller and Buyer of
written or telephonic notification of such execution and authorization of
delivery thereof. Seller represents and warrants that the filing of a voluntary
petition by Seller under Chapter 11 of the Bankruptcy Code on the Petition Date
was duly authorized by all necessary corporate action and that Seller's
execution, delivery and performance of this Amendment does not require prior
notice to or the consent of any Person (including, without limitation, the
Bankruptcy Court).
C. HEADINGS. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
D. Applicable Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its duly authorized officers as of the day and year
first above written.
BUYER:
MARKER INTERNATIONAL GMBH
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Chief Financial Officer
SELLER:
MARKER INTERNATIONAL, AS DEBTOR
AND DEBTOR-IN-POSSESSION
By: /s/ Xxxxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Manager
By: /s/ Gian Xxxxx Xxxxxx
--------------------------------
Name: Gian Xxxxx Xxxxxx
Title: President
