MEMBERSHIP INTEREST PURCHASE AGREEMENT by and among WEST CO LLC, the Buyer C&D IT LLC, EFG KIRKWOOD LLC AND EFG PALISADES LLC, collectively, the Companies and AFG INVESTMENT TRUST C LIQUIDATING TRUST and AFG INVESTMENT TRUST D LIQUIDATING TRUST,...
EXHIBIT
10.1
by
and among
WEST
CO LLC,
the
Buyer
C&D
IT LLC, EFG KIRKWOOD LLC AND EFG PALISADES LLC,
collectively,
the Companies
and
AFG
INVESTMENT TRUST C LIQUIDATING TRUST
and
AFG
INVESTMENT TRUST D LIQUIDATING TRUST,
together,
the Sellers
July 24,
2006
TABLE
OF CONTENTS
PAGE
| 1.1. | Definitions | 1 | |
| 1.2. | Certain Interpretive Matters | 6 | |
| 1.3. | Acknowledgment Regarding Negotiation and Preparation of Agreement | 7 |
| ARTICLE 2 PURCHASE AND SALE OF THE INTERESTS | 7 |
| 2.1. | Purchase and Sale of the Interests | 7 | |
| 2.2. | Purchase Price; Payment; Deposit and Delivery into Escrow | 7 | |
| 2.3. | Additional Consideration for Sellers | 8 |
| ARTICLE 3 THE CLOSING | 8 |
| 3.1. | Closing and Closing Date | 8 | |
| 3.2. | Documents and Items to Be Delivered to the Buyer by the Sellers | 8 | |
| 3.3. | Documents and Items to Be Delivered to the Sellers by the Buyer | 9 |
| ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE SELLERS | 10 |
| 4.1. | Issuance of the Interests; Sellers’ Title to the Interests | 10 | |
| 4.2. | No Conflict | 10 | |
| 4.3. | Enforceability | 10 | |
| 4.4. | Brokers | 10 | |
| 4.5. | Litigation | 11 | |
| 4.6. | Consequential Damages and Lost Profits | 11 |
| ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF THE BUYER | 11 |
| 5.1. | Organization | 11 | |
| 5.2. | Authority of the Buyer | 11 | |
| 5.3. | Enforceability | 11 | |
| 5.4. | No Violation or Conflict; Consents | 11 | |
| 5.5. | Brokers | 12 | |
| 5.6. | Investment Intent | 12 | |
| 5.7. | Litigation | 12 | |
| 5.8. | Consequential Damages and Lost Profits; Buyer Due Diligence | 12 |
| ARTICLE 6 COVENANTS OF THE PARTIES | 13 |
| 6.1. | Conduct of Business of the Companies | 13 | |
| 6.2. | Notification of Certain Matters | 13 |
| ARTICLE 7 CONDITIONS TO CLOSING | 13 |
| 7.1. | Conditions to Obligations of the Sellers | 13 | |
| 7.2. | Conditions to Obligations of the Buyer | 14 |
| ARTICLE 8 TERMINATION | 14 |
| 8.1. | Termination | 14 | |
| 8.2. | Effect of Termination | 15 |
-i-
| ARTICLE 9 INDEMNIFICATION | 16 |
| 9.1. | Survival | 16 | |
| 9.2. | Terms of Indemnification | 17 | |
| 9.3. | Procedures with Respect to Third-Party Claims | 17 | |
| 9.4. | Indemnification Cap and Threshold | 18 | |
| 9.5. | Additional Indemnification Provisions | 18 | |
| 9.6. | Exclusive Remedy | 19 |
| ARTICLE 10 GENERAL PROVISIONS | 19 |
| 10.1. | Parties in Interest; Successors and Assigns; No Third Party Rights | 19 | |
| 10.2. | Assignment | 19 | |
| 10.3. | Notices | 20 | |
| 10.4. | Entire Agreement | 20 | |
| 10.5. | Counterparts and Facsimile Signature | 20 | |
| 10.6. | Severability | 20 | |
| 10.7. | Amendment | 20 | |
| 10.8. | Waiver | 20 | |
| 10.9. | Further Assurances | 21 | |
| 10.10. | Legal Counsel | 21 | |
| 10.11. | Expenses | 21 | |
| 10.12. | Governing Law | 21 |
Exhibits
A
-
Interests
B
- Escrow
Agreement
C-1
-
Assignment Instructions (AFG Investment Trust C Liquidating Trust)
C-2
-
Assignment Instructions (AFG Investment Trust D Liquidating Trust)
-ii-
THIS
MEMBERSHIP INTEREST PURCHASE AGREEMENT
(this
“Agreement”)
is made
and entered into as of July 24, 2006, by and among West Co LLC, a Florida
limited liability company (the “Buyer”),
C&D IT LLC, a Delaware limited liability company (“C&D”),
EFG
Kirkwood LLC, a Delaware limited liability company (“Kirkwood”)
and
EFG Palisades LLC, a Delaware limited liability company (“Palisades”)
(C&D, Kirkwood and Palisades, each a “Company”
and
together, the “Companies),
and
Wilmington Trust Company, not in its individual capacity but solely as
Liquidating Trustee of each of AFG Investment Trust C Liquidating Trust and
AFG
Investment Trust D, each a Delaware liquidating trust (each a “Seller”
and
together, the “Sellers”).
RECITALS
WHEREAS,
the
Sellers are the owners of all of the outstanding units of interest of the
Companies set forth on Exhibit A
hereto
(collectively, the “Interests”);
and
WHEREAS,
the
Buyer
desires to purchase the Interests from the Sellers, and the Sellers desire
to
sell the Interests to the Buyer, all upon the terms and conditions set forth
in
this Agreement;
NOW,
THEREFORE,
in
consideration of the premises, the mutual covenants, agreements, representations
and warranties contained in this Agreement, and other good and valuable
consideration, the receipt and legal sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree
as
follows:
ARTICLE
1
DEFINITIONS
AND RULES OF CONSTRUCTION
1.1. Definitions.
As
used
in this Agreement, the following terms have the meanings set forth
below:
“Additional
Consideration” has
the
meaning set forth in Section 2.3.
“Affiliate(s)” means
with respect to any Person, any other Person directly or indirectly controlling,
controlled by or under common control with the first Person on or after the
date
of this Agreement. For the purposes of this definition, “control,”
when
used with respect to any Person, means the possession, directly or indirectly,
of the power to (i) vote 25% or more of the voting securities of such Person
or
(ii) direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by contract or
otherwise, and the terms “controlling”
and
“controlled”
have
meanings correlative to the foregoing.
“Agreement”
has the
meaning set forth in the introduction to this Agreement.
-1-
“Assignment
Instructions”
means
those certain Assignment Instructions in the form of Exhibit C
hereto.
“Breach”
means
(a) any inaccuracy in, or breach or violation of, or default under, or
failure to perform or comply with, any representation or warranty of this
Agreement or any of the other Transaction Documents; or (b) any claim (by
any Person) or other occurrence or circumstance that is or was inconsistent
with
any such representation or warranty.
“Buyer”
has
the meaning
set forth in the introduction to this Agreement.
“Buyer
Party”
means
(a) prior to the Closing, the Buyer, its Affiliates and its stockholders,
directors, officers, employees, agents, advisors and other representatives,
including legal counsel, accountants and financial advisors; and (b) from
and after Closing, the Buyer and its Affiliates, the Companies and their
Affiliates and their respective stockholders, directors, officers, employees,
agents, advisors and other representatives, including legal counsel, accountants
and financial advisors.
“Closing”
has
the
meaning set forth in Section 3.1.
“Closing
Date” has
the
meaning set forth in Section 2.3.
“Code”
means
the Internal Revenue Code of 1986, as amended, and rules and regulations
promulgated pursuant thereto.
“Company”
has the
meaning set forth in the introduction to this Agreement.
“Consent”
means
any consent, approval, license, ratification, waiver, novation, award or
other
authorization, including any Permit.
“Contract”
means
any agreement, contract, instrument, obligation, commitment, covenant,
understanding, promise, promissory note, bond, indenture, insurance policy,
deed, lease, license, franchise, invoice, quotation, purchase order, sales
order
or other obligation, undertaking or arrangement (whether written or oral
and
whether express or implied) that is legally binding.
“Damages”
means
any and all losses, charges, claims, damages, liabilities, obligations,
judgments, settlements, taxes, fines, penalties, awards, demands, offsets,
costs, deficiencies and expenses including reasonable attorney and expert
fees,
whether absolute, accrued, conditional or otherwise and whether or not resulting
from third-party claims and including all amounts paid in investigation,
defense
or settlement of the foregoing.
“Deposit”
has
the
meaning set forth in
Section 2.2(c).
“Escrow
Agent”
means
Wilmington Trust Company.
“Escrow
Agreement” means
that certain Escrow Agreement by and among the Buyer, the Sellers, the Companies
and the Escrow Agent in the form attached as Exhibit B
hereto.
-2-
“GAAP” means
United States generally accepted accounting principles, consistently
applied.
“Governmental
Authority”
means:
(a) any nation, state, county, city, town, xxxxxxxxxxxx, xxxxxxx, xxxxxxxx,
xxxxxxxxx or other jurisdiction of any nature; (b) any federal, state,
municipal or local governmental or quasi-governmental entity or authority
of any
nature; (c) any court or tribunal exercising or entitled to exercise
judicial authority or power of any nature; (d) any multinational
organization or body; and (e) any department or subdivision of any of the
foregoing, including any commission, branch, board, bureau, agency, official
or
other instrumentality exercising or entitled to exercise any administrative,
executive, judicial, legislative, police, regulatory or taxing authority
or
power of any nature.
“Indebtedness”
means
with respect to the Company, at any date, without duplication: (a) all
obligations of the Company for borrowed money, whether current, short-term
or
long-term, secured or unsecured, including all principal, interest, premiums,
fees, expenses, overdrafts and pre-payment and other penalties with respect
thereto; (b) all obligations of the Company evidenced by bonds, debentures,
notes or other similar instruments; (c) all obligations of the Company to
pay the deferred purchase price of property or services, except trade payables
incurred in the Ordinary Course of Business; (d) all obligations of the
Company to reimburse any bank or other Person in respect of amounts paid
under a
letter of credit, banker’s acceptance or similar instrument; (e) all
capital lease obligations; (f) any Liability of the Company with respect to
interest rate swaps, collars, caps and similar hedging obligations; and
(g) all Indebtedness of any other Person of the type referred to in clauses
(a) through (f) above directly or indirectly guaranteed by the Company
or secured by any assets of the Company. For purposes of this definition,
“capital
lease obligations”
means
the obligations of the Company that are required to be classified and accounted
for as capital lease obligations under GAAP, and the amount of such obligations
at any date shall be the capitalized amount of such obligations at such date
determined in accordance with GAAP together with all obligations to make
termination payments under such capital lease obligations.
“Indemnification
Cap”
has the
meaning set forth in Section 9.4(a).
“Indemnification
Threshold”
has the
meaning set forth in Section 9.4(b).
“Indemnified
Party”
has the
meaning set forth in Section
9.3.
“Indemnifying
Party”
has the
meaning set forth in Section
9.3.
“Interests”
has the
meaning set forth in the Recitals to this Agreement.
“Law” means
(a) any constitution, statute, code, ordinance, regulation, treaty, rule,
common law, policy, interpretation or guidance document enacted, published
or
promulgated by any Governmental Authority; and (b) with respect to a
particular Person, the terms of any Order binding upon such Person or its
assets
or properties.
“Liability”
means
any liability, Indebtedness or other obligation, whether known or unknown,
asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated
or unliquidated.
-3-
“Lien”
means
any charge, claim, mortgage, lease, sublease, occupancy agreement or similar
Contract, tenancy, right-of-way, easement, collateral assignment, restrictive
covenant, encroachment, burden, condition, Order, community property interest,
equitable interest, security interest, lien (statutory or otherwise), pledge,
hypothecation, option, right of first refusal or other restriction, limitation,
exception or encumbrance of any kind, including any restriction on use, voting,
transfer, receipt of income or exercise of any other attribute of
ownership.
“Material
Adverse Effect” means
a
material adverse effect on the business, operations, condition (financial
or
otherwise), results of operations, rights, assets (including intangible assets)
or liabilities of the Company or a material adverse effect on the ability
of the
Company or the Sellers to consummate and perform in a timely manner the
transaction contemplated by this Agreement.
“Material
Adverse Event”
means
any one or more events, changes, circumstances, conditions, violations or
developments (whether or not arising in the Ordinary Course of Business),
which
has had or have had or could reasonably be expected to have, individually
or in
the aggregate, a Material Adverse Effect.
“Order”
means
any order, injunction (whether temporary, preliminary or permanent), ruling,
decree (including any consent decree), writ, subpoena, verdict, charge,
assessment, Consent or other decision entered, issued, made or rendered by
any
court or other Governmental Authority or by any arbitrator.
“Ordinary
Course of Business”
means,
with respect to a particular Person, an action taken by, or the conduct of,
such
Person that is:
(a) consistent
with the past practices of such Person in timing, frequency, amount and
otherwise and taken in the ordinary course of the normal day-to-day operations
of such Person;
(b) not
required to be authorized by the board of directors of such Person (or by
any
Person or group of Persons exercising similar authority); and
(c) similar
in nature and magnitude to actions customarily taken by, or the conduct of,
such
Person, without any authorization by the board of directors (or by any Person
or
group of Persons exercising similar authority), in the ordinary course of
the
normal day-to-day operations of other Persons that are in the same line of
business as such Person.
“Organizational
Documents”
means,
with respect to a particular Person, (a) if such Person is a corporation,
its certificate or articles of incorporation, organization or formation and
its
by-laws; (b) if such Person is a general partnership, its partnership
agreement and any statement of partnership; (c) if such Person is a limited
partnership, its certificate of limited partnership and its limited partnership
agreement; (d) if such Person is a limited liability company, its
certificate or articles of formation or organization and limited liability
company or operating agreement; (e) any other charter or similar document
adopted or filed in connection with the creation, formation or organization
of
such Person; and (f) any amendment to any of the foregoing.
-4-
“Permit”
means
any permit, license, Consent, exemption, variance, registration, security
clearance or other authorization issued or granted by any Governmental
Authority.
“Permitted
Liens”
means
any: (a) Liens for current Taxes not yet due (other than Taxes arising out
of the transactions contemplated by this Agreement); (b) Liens of carriers,
laborers, materialmen, mechanics, repairmen or warehousemen, and other similar
Liens imposed by Law and arising in the Ordinary Course of Business for
Liabilities not yet due; and (c) Liens of record or other minor defects of
title that do not and could not interfere with the use of such real property
or
materially diminish the value thereof.
“Person”
means
any individual, firm, company, general partnership, limited partnership,
limited
liability partnership, joint venture, association, corporation, limited
liability company, trust, business trust, estate, Governmental Authority
or
other entity.
“Proceeding”
means
any action, claim, complaint, charge, arbitration, audit, hearing,
investigation, inquiry, suit, litigation or other proceeding (whether civil,
criminal, administrative, investigative or informal) commenced, brought,
conducted or heard by or before, or otherwise involving, any Governmental
Authority or arbitrator.
“Purchase
Price” has
the
meaning set forth in Section 2.2(a).
“Securities
Act”
means
the Securities Act of 1933, as amended, and the rules and regulations
promulgated pursuant thereto.
“Seller
Party”
means
(a) prior to Closing, the Sellers and the Companies, and (b) from and
after Closing, the Sellers.
“Seller”
or “Sellers”
has
the
meaning set forth in the introduction to this Agreement.
“Seller’s
Counsel”
means
Putney, Twombly, Hall & Hirson LLP.
“Tax” or
“Taxes”
means,
however denominated, all federal, state, local, territorial, foreign and
other
taxes, levies, fees, deficiencies, imposts, assessments, impositions or other
government charges of whatever nature, including all net income, gross income,
estimated income, gross receipts, business, occupation, franchise, real
property, payroll, personal property, sales, transfer, stamp, use, employment,
social security, unemployment, worker’s compensation, commercial rent,
withholding, occupancy, premium, gross receipts, profits, windfall profits,
deemed profits, recapture, license, lease, severance, capital, production,
corporation, ad
valorem,
excise,
custom, duty, escheat, built in gain pursuant to Code Section 1374
or
similar tax, including any interest, fines, penalties and additions (to the
extent applicable) thereon or thereto, whether disputed or not, and any
obligations with respect to such amounts arising as a result of being a member
of an affiliated, consolidated, combined or unitary group for any period
or
under any Contract with any other Person, and including any Liability for
taxes
of a predecessor.
“Transaction
Documents”
means
this Agreement and all other agreements, certificates, instruments and other
documents being delivered pursuant to this Agreement or pursuant to such
other
agreements, certificates, instruments and other documents.
-5-
1.2. Certain
Interpretive Matters.
(a) General
Rules of Construction. In
this
Agreement, unless the context otherwise requires:
(i) words
of
the masculine or neuter gender shall include the masculine and/or feminine
gender, and words in the singular number or in the plural number shall each
include the singular number or the plural number;
(ii) reference
to any Person includes such Person’s successors and assigns but, if applicable,
only if such successors and assigns are permitted by this Agreement, and
reference to a Person in a particular capacity excludes such Person in any
other
capacity;
(iii) reference
to any agreement (including this Agreement) or other Contract or any document
means such agreement, Contract or document as amended or modified and in
effect
from time to time in accordance with the terms thereof and, if applicable,
the
terms hereof;
(iv) any
accounting term used and not otherwise defined in this Agreement or any other
Transaction Document has the meaning assigned to such term in accordance
with
GAAP;
(v) “including”
(and
with correlative meaning “include”)
means
including without limiting the generality of any description preceding or
succeeding such term;
(vi) relative
to the determination of any period of time, “from”
means
“from
and including,”
“to”
means
“to
but excluding”
and
“through”
means
“through
and including;”
(vii) “hereto”,
“herein”,
“hereof”,
“hereinafter”
and
similar expressions refer to this Agreement in its entirety, and not to any
particular Article, Section, paragraph or other part of this
Agreement;
(viii) reference
to any “Article”
or
“Section”
means
the corresponding Article(s) or Section(s) of this Agreement;
(ix) the
descriptive headings of Articles, Sections, paragraphs and other parts of
this
Agreement are included for convenience of reference only and shall not affect
in
any way the meaning or interpretation of this Agreement or any of the terms
or
provisions hereof;
(x) references
to dollars or “$” in this Agreement shall mean United States
Dollars;
-6-
(xi) reference
to any Law or Order, means (A) such Law or Order as amended, modified,
codified, supplemented or reenacted, in whole or in part, and in effect from
time to time; and (B) any comparable successor Laws or Orders;
and
(xii) any
Contract, instrument, insurance policy, certificate or other document defined
or
referred to in this Agreement or in any other Transaction Document means
such
Contract, instrument, insurance policy, certificate or other document as
from
time to time amended, modified or supplemented, including (in the case of
Contracts or instruments) by waiver or Consent and all attachments thereto
and
instruments and other documents incorporated therein.
1.3 Acknowledgment
Regarding Negotiation and Preparation of Agreement.
The
parties hereto further acknowledge and agree that: (i) this Agreement is
the result of negotiations between the parties hereto and shall not be deemed
or
construed as having been drafted by any one party, (ii) each of the parties
hereto and its counsel have reviewed and negotiated the terms and provisions
of
this Agreement (including any exhibits and schedules attached hereto) and
have
contributed to its preparation, (iii) the rule of construction to the
effect that any ambiguities are resolved against the drafting party shall
not be
employed in the interpretation of this Agreement, and (iv) the terms and
provisions of this Agreement shall be construed fairly as to all parties
hereto
and not in favor of or against any party, regardless of which party was
generally responsible for the preparation of this Agreement. The parties
hereto
recognize that Wilmington Trust Company will be acting as Escrow Agent with
respect to the transactions contemplated hereby, and as ]the Liquidating
Trustee
of each of the Sellers. Each of the parties hereto recognizes that acting
in
both capacities creates a potential conflict of interest with respect to
Wilmington Trust Company, and each party hereto hereby waives any and all
such
conflicts of interest.
ARTICLE
2
PURCHASE
AND SALE OF THE INTERESTS
2.1. Purchase
and Sale of the Interests.
Upon
and
subject to the terms and provisions of this Agreement, at the Closing, the
Buyer
will purchase and accept delivery of the Interests from the Sellers, and
the
Sellers shall sell, assign, transfer and deliver all of the Interests to
the
Buyer free and clear of all Liens.
2.2. Purchase
Price; Payment; Deposit and Delivery into Escrow.
(a) Purchase
Price; Allocation.
The
total purchase price for the Interests will be Five Million Four Hundred
Ten
Thousand Dollars ($5,410,000) (the “Purchase
Price”)
and
shall be allocated to the Interests in accordance with Exhibit A.
(b) Payment.
The
Purchase Price shall be paid at the Closing in accordance with the Escrow
Agreement.
(c) Delivery
of Deposit into Escrow.
On the
date hereof, the Buyer shall deposit with the Escrow Agent in immediately
available funds by wire transfer One Hundred Thousand Dollars ($100,000.00)
as a
deposit (the “Deposit”),
which
shall be offset against the Purchase Price at Closing; however; the Deposit
shall not be considered part of the Purchase Price as the Deposit shall be
non-refundable except as expressly set forth in Section
8.2(b).
-7-
2.3. Additional
Consideration for Sellers.
In the
event that, within the eighteen month period following the Closing commencing
on
the date of the Closing (the “Closing
Date”),
either of the Sellers provides written notice to the Buyer that BMIF/BSLF
II
Rancho Malibu Limited Partnership (the “Partnership”) has received a grading
permit from the appropriate regulatory agencies relating to the Land (as
defined
in the Partnership’s Amended and Restated Limited Partnership Agreement, as
amended), then the Buyer shall promptly, but in no event later than three
(3)
business days after such notice, pay an additional $300,000 to the Sellers,
allocated in accordance with each Sellers’ interest in C&D IT LLC as set
forth on Exhibit A (such amount, the “Additional
Consideration”).
ARTICLE
3
THE
CLOSING
3.1. Closing
and Closing Date.
Unless
this Agreement shall have been terminated and the transactions herein
contemplated shall have been abandoned in accordance with the terms and
provisions of Article 8,
the
purchase and sale of the Interests (the “Closing”)
shall
take place at 10:00 a.m. (Boston time)
on
a date to be designated by the Buyer and the Sellers upon the satisfaction
or
waiver of all of the conditions to the respective obligations of the parties
set
forth in Article 7),
in
accordance with the terms of the Escrow Agreement. The Closing shall take
place
at the offices of Xxxxx Xxxxxxx LLP, 000 Xxxxxx Xxxxxx, Xxxxxx, XX
00000.
3.2. Documents
and Items to Be Delivered to the Buyer by the Sellers. At
the
Closing, the Sellers will deliver to the Buyer:
(i) Signature
pages to the Assignment Instructions, fully executed by the Sellers and dated
as
of the Closing Date;
(ii) A
certificate in form and substance reasonably acceptable to the Buyer, dated
the
Closing Date, executed by the manager(s) of each Company, certifying:
(i) that attached thereto is a true, correct and complete copy of the
Organizational Documents of such Company, including all amendments thereto,
as
in effect on the Closing Date; (ii) that attached thereto is a true and
complete copy of the resolutions duly adopted by the manager(s) of such Company
authorizing the execution and delivery of this Agreement and each of the
other
Transaction Documents to which such Company is a party, and that such
resolutions have not been modified, rescinded or amended and are in full
force
and effect as of the Closing Date; and (iii) as to the incumbency of the
manager(s) and officers of such Company and their signatures;
(iii) A
certificate in form and substance reasonably acceptable to the Buyer, dated
the
Closing Date, executed by Wilmington Trust Company, the Liquidating Trustee
of
each Seller, certifying that attached thereto is a true, correct and complete
copy of the Organizational Documents of each Seller, including all amendments
thereto, as in effect on the Closing Date;
-8-
(iv) A
certificate, in form and substance reasonably acceptable to the Buyer, dated
the
Closing Date, executed by the manager(s) of each Company, certifying that
(i) the representations and warranties of such Company set forth in this
Agreement were true, correct and complete at and as of the date hereof and
the
Closing Date (provided that representations and warranties which are confined
to
a specific date shall speak only as of such date); and (ii) that such
Company has performed in accordance with the terms thereof each of its
agreements and obligations set forth in this Agreement and each of the other
Transaction Documents to which the Company is a party to be performed prior
to
the Closing;
(v) A
certificate, in form and substance reasonably acceptable to the Buyer, dated
the
Closing Date, executed by the Liquidating Trustee of each of the Sellers,
certifying that (i) the representations and warranties of the Sellers set
forth in this Agreement were true, accurate and complete at and as of the
date
hereof and the Closing Date (provided that representations and warranties
which
are confined to a specific date shall speak only as of such date); and
(ii) each of the Sellers performed its respective or joint agreements and
obligations set forth in this Agreement and each of the other Transaction
Documents to which the Sellers are a party to be performed prior to the
Closing;
(vi) Certificate
of good standing for each Company from the Secretary of State of the State
of
Delaware dated not earlier than ten (10) days prior to the Closing Date;
and
(vii) Such
other certificates and documents as the Buyer or the Buyer’s Counsel may
reasonably request.
3.3. Documents
and Items to Be Delivered to the Sellers by the Buyer.
At the
Closing, the Buyer will deliver to the Sellers:
(i) in
immediately available funds by wire transfer, an amount equal to the Purchase
Price less the Deposit, payable as set forth on Exhibit A
hereto;
(ii) A
certificate, in form and substance reasonably acceptable to the Sellers,
executed by an authorized officer of the Buyer, dated the Closing Date, and
certifying (i) that attached thereto are true and complete copies of the
Organizational Documents of the Buyer, including all amendments thereto,
as in
effect on the Closing Date; (ii) that attached thereto are the votes duly
adopted by the Board of Directors or Manager(s) of the Buyer, as applicable,
authorizing the execution, delivery and performance of this Agreement and
each
of the other Transaction Documents to which it is a party, and that such
votes
have not been modified, rescinded or amended and are in full force and effect
as
of the Closing Date; and (iii) as to the incumbency of the Buyer’s officers
and their signatures;
(iii) A
certificate, in form and substance reasonably acceptable to the Sellers,
executed by an authorized officer of the Buyer, dated the Closing Date, and
certifying as to the accuracy of the Buyer’s representations and warranties at
and as of the Closing and the performance by the Buyer of its agreements
and
obligations set forth in this Agreement and each of the other Transaction
Documents to which it is a party to be performed prior to the Closing;
and
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(iv) Such
other certificates and documents as the Sellers or the Sellers’ Counsel may
reasonably request.
ARTICLE
4
REPRESENTATIONS
AND WARRANTIES OF THE SELLERS
The
Sellers severally, but not jointly and severally, hereby represent and warrant
to the Buyer as follows:
4.1 Issuance
of the Interests; Sellers’ Title to the Interests.
(a) EXCEPT
AS
EXPRESSLY PROVIDED IN THIS ARTICLE 4, THE INTERESTS SOLD PURSUANT TO THIS
AGREEMENT ARE SOLD, CONVEYED, ASSIGNED AND TRANSFERRED ON AN “AS IS, WHERE IS”
BASIS “WITH ALL FAULTS.” EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE, EACH OF
THE SELLERS MAKES NO REPRESENTATIONS OR WARRANTIES, TERMS, CONDITIONS,
UNDERTAKINGS OR COLLATERAL AGREEMENTS OF ANY NATURE, EXPRESS OR IMPLIED,
BY
STATUTE OR OTHERWISE, CONCERNING THE INTERESTS OR THE CONDITION, DESCRIPTION,
QUALITY, QUANTITY OR ANY OTHER THING AFFECTING OR RELATING TO THE INTERESTS
OR
THE OPERATION OR USE BY THE BUYER OF ANY OF THE INTERESTS.
(b) The
Interests are duly authorized, validly issued, fully paid and non-assessable.
Each of the Sellers has good title to and is the lawful, legal, record
and
beneficial owner of the Interests, free and clear of all Liens and the
Buyer, at
the Closing and upon payment of the Purchase Price, will receive good title
to
the Interests, free and clear of all Liens.
4.2 No
Conflict.
Neither
of the Sellers is a party to, subject to or bound by any agreement or any
judgment, order, writ, prohibition, injunction or decree of any court or
other
governmental body which would prevent the execution or delivery of this
Agreement by it or the transfer of the Interests pursuant to the terms of
this
Agreement.
4.3 Enforceability.
This
Agreement and each of the other Transaction Documents to which the Sellers
are a
party were duly and validly executed and delivered by the Sellers and (assuming
such agreements constitute the legal, valid and binding obligations of the
Buyer) constitute the legal, valid and binding agreement of the Sellers,
enforceable against the Sellers in accordance with their terms.
4.4 Brokers.
No
investment banker, broker, agent, finder, advisor, firm or other Person acting
on behalf of the Sellers or its stockholders is, or will be, entitled to
any
commission or broker’s or finder’s fees from any of the parties hereto, or from
any Person controlling, controlled by or under common control with any of
the
parties hereto, in connection with any of the transactions contemplated
herein.
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4.5 Litigation.
There
is no suit, action, proceeding, claim or investigation pending, or, to the
Sellers’ knowledge, threatened, against the Sellers that would affect the
consummation of the transactions contemplated by this Agreement.
4.6 Consequential
Damages and Lost Profits.
THE
SELLERS ACKNOWLEDGE AND AGREE THAT THE BUYERS SHALL NOT BE LIABLE UNDER THIS
AGREEMENT FOR ANY LOST PROFITS OF EITHER OF THE SELLERS OR INDIRECT,
CONSEQUENTIAL OR SPECIAL DAMAGES OF EITHER OF THE SELLERS.
ARTICLE
5
REPRESENTATIONS
AND WARRANTIES OF THE
BUYER
The
Buyer
represents and warrants to each of the Sellers as follows:
5.1. Organization.
The
Buyer
is a limited liability company duly organized, validly existing and in good
standing under the laws of the State of Florida with all power and authority
to
own or lease all of its properties and assets and to conduct its business
as
presently conducted.
5.2. Authority
of the Buyer.
The
Buyer has all requisite power and authority to execute and deliver this
Agreement and each of the other Transaction Documents to which it is a party,
to
perform its obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby. The execution and delivery
by the
Buyer of this Agreement and each of the other Transaction Documents to which
it
is a party, the performance by the Buyer of its obligations hereunder and
thereunder and the consummation of the transactions contemplated hereby and
thereby have been duly and validly authorized by the manager of the Buyer
and no
other proceedings on the part of the Buyer are necessary to authorize this
Agreement and each of the Transaction Documents to which the Buyer is a party,
the performance of such obligations or the consummation of such transactions.
5.3. Enforceability.
This
Agreement and each of the other Transaction Documents to which the Buyer
is a
party was duly and validly executed and delivered by the Buyer and (assuming
such agreements constitute the legal, valid and binding obligations of the
Sellers) constitute the legal, valid and binding agreement of the Buyer,
enforceable against the Buyer in accordance with their terms.
5.4. No
Violation or Conflict; Consents.
Neither
the execution and delivery by the Buyer of this Agreement or any of the other
Transaction Documents to which it is a party, nor the performance by the
Buyer
of its obligations hereunder and thereunder, nor the consummation of the
transactions contemplated hereby and thereby will, directly or indirectly
(with
or without notice or lapse of time or both):
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(i) violate,
contravene, conflict with or Breach any term or provision of the Organizational
Documents of the Buyer or any resolution or vote adopted by the manager of
the
Buyer;
(ii) violate,
contravene or conflict with any of the terms, conditions or requirements
of, or
require any notice to or filing with any Governmental Authority or other
Person
under, any Permit, Law or Order applicable to the Buyer or any of its assets
or
properties;
(iii) give
any
Governmental Authority the right to revoke, withdraw, suspend, cancel, modify,
or terminate any Permit held by the Buyer; or
(iv) require
any Permit or other Consent of, or filing with or notification to, any
Governmental Authority or other Person.
5.5. Brokers.
No
investment banker, broker, agent, finder, advisor, firm or other Person acting
on behalf of the Buyer or its stockholders is, or will be, entitled to any
commission or broker’s or finder’s fees from any of the parties hereto, or from
any Person controlling, controlled by or under common control with any of
the
parties hereto, in connection with any of the transactions contemplated
herein.
5.6. Investment
Intent.
The
Buyer
is acquiring the Interests for its own account and not with a view to their
distribution within the meaning of Section 2(11) of the Securities Act. The
Buyer confirms that the Sellers and the Companies have made available to
the
Buyer and its representatives and agents the opportunity to ask questions
of the
officers and management employees of each Company and to acquire such additional
information about the business and financial condition of each Company as
the
Buyer has requested.
5.7. Litigation.
There
is
no suit, action, proceeding, claim or investigation pending, or, to the Buyer’s
knowledge, threatened, against the Buyer that would affect the consummation
of
the transactions contemplated by this Agreement.
5.8. Consequential
Damages and Lost Profits; Buyer Due Diligence.
THE
BUYER ACKNOWLEDGES AND AGREES THAT THE SELLERS SHALL NOT BE LIABLE UNDER
THIS
AGREEMENT FOR ANY LOST PROFITS OR INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES.
THE BUYER CONFIRMS, ACKNOWLEDGES AND AGREES THAT UPON CLOSING IT SHALL HAVE
PERFORMED ALL DUE DILIGENCE REQUIRED BY IT WITH RESPECT TO THE INTERESTS
TO THE
EXTENT THAT THE BUYER MAY WISH SO AND THAT THE BUYER IS RELYING ENTIRELY
UPON
ITS OWN INVESTIGATION WITH RESPECT TO THE INTERESTS IN PROCEEDING WITH THE
TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT.
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ARTICLE
6
COVENANTS
OF THE PARTIES
6.1. Conduct
of Business of the Companies.
During
the period from the date of this Agreement to the Closing Date, each of the
Companies shall, and each of the Sellers shall cause each of the Companies
to:
(i) conduct its operations in the Ordinary Course of Business;
(ii) use reasonable best efforts to preserve intact its business
organization, keep available the services of its current managers, officers,
employees, consultants and agents; (iii) use reasonable best efforts to
preserve its goodwill; (iv) cooperate with all reasonable due diligence
requests of the Buyer; (v) provide the Buyer with reasonable access to all
of its books, records, partners and employees of the Company, including but
not
limited to plans, surveys, reports and other documents or records that pertain
to the Company and its assets, including any appraisals or other valuations;
and
(vi) promptly advise the Buyer in writing of any Material Adverse
Event.
6.2. Notification
of Certain Matters.
The
Sellers shall give prompt notice to the Buyer, and the Buyer shall give prompt
notice to the Sellers, of the occurrence or non-occurrence of any event,
the
occurrence or non-occurrence of which is likely (a) to cause any
representation or warranty of such party contained in this Agreement to be
untrue, inaccurate or incomplete in any material respect at or prior to the
Closing, or (b) to result in any material failure of such party to comply
with or satisfy any condition, obligation, covenant or agreement to be complied
with or satisfied by it hereunder; provided,
however,
that
the delivery of any notice pursuant to this Section 6.2
shall
not
limit or otherwise affect any representations and warranties or any conditions,
obligations, covenants or agreements under this Agreement, or the rights
or
remedies, pursuant to Article 9,
available to the Buyer.
ARTICLE
7
CONDITIONS
TO CLOSING
7.1. Conditions
to Obligations of the Sellers.
The
obligations of the Sellers to close the transactions contemplated by this
Agreement shall be subject to the satisfaction or waiver by the Sellers at
or
prior to the Closing of the following conditions:
(i) The
Buyer
shall have performed or complied with its obligations, covenants and agreements
contained in this Agreement
(considered individually and collectively) required to be performed or complied
with at or prior to the Closing;
(ii) The
representations and warranties of the Buyer contained in this Agreement
(considered individually and collectively) shall be true, correct and complete
on and as of the date hereof and on and as of the Closing Date with the same
force and effect as if made on and as of the Closing Date (provided that
representations and warranties which are confined to a specific date shall
speak
only as of such date);
(iii) The
Sellers shall have received from the Buyer the deliveries referred to in
Section 3.3;
(iv) Each
of
the Sellers shall have received an opinion regarding the fairness, from a
financial point of view, of the consideration to be received by each Seller
and/or the interest holders of such Seller, in form and substance satisfactory
to such Seller in each Seller’s sole discretion; and
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(v) No
Law or
Order shall have been enacted, entered, promulgated, issued or enforced by
any
Governmental Authority of competent jurisdiction which prohibits, restrains,
enjoins or restricts the consummation of the transactions contemplated hereby;
provided,
however,
that
the parties shall use reasonable best efforts to cause any such Law or Order
to
be vacated or lifted.
7.2. Conditions
to Obligations of the Buyer.
The
obligations of the Buyer to close the transaction contemplated hereby shall
be
subject to the satisfaction or waiver by the Buyer at or prior to the Closing
of
the following conditions:
(i) The
Sellers shall have performed or complied with their obligations, covenants
and
agreements, including restrictive covenants, contained in this Agreement
(considered either individually and/or collectively, as applicable) required
to
be performed or complied with at or prior to the Closing;
(ii) The
representations and warranties of the Sellers contained in this Agreement
(considered individually and collectively) shall be true, correct and complete,
when made and on and as of the Closing Date with the same force and effect
as if
made on and as of the Closing Date;
(iii) The
Buyer
shall have received the deliveries referred to in Section 3.2;
(iv) No
Law or
Order shall have been enacted, entered, promulgated, issued or enforced by
any
Governmental Authority of competent jurisdiction, and no Proceeding shall
have
been commenced or threatened, which prohibits, restrains, enjoins or restricts
the consummation of the transactions contemplated hereby; provided,
however,
that
the parties shall use reasonable best efforts to cause any such Law or Order
to
be vacated or lifted; and
(viii) No
Material Adverse Event shall exist or shall have occurred since the date
of
this Agreement.
(ix) The
Buyer
shall have completed and shall be satisfied with, in its sole reasonable
discretion, its due diligence investigation with respect to the business
and
financial condition of the Company.
ARTICLE
8
TERMINATION
8.1. Termination.
This Agreement
may be terminated and the transaction contemplated hereby may be abandoned
at
any time prior to the Closing, as follows:
(a) by
mutual
written consent of the Buyer and the Sellers;
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(b) by
the
Buyer or any of the Sellers if the Closing shall not have occurred on or
before
December 1, 2006 (provided that the right to terminate this Agreement
under this Section 8.1(b)
shall
not be available to any party hereto whose failure to perform or comply with
any
covenant, condition or obligation under this Agreement
has been the cause of, or resulted in, the failure of the transactions to
be
consummated on or before such date);
(c) by
the
Buyer or any of the Sellers if any Governmental Authority of competent
jurisdiction shall have issued a final Order restraining, enjoining or
prohibiting the transactions contemplated by this Agreement
and such Order is or shall have become final and non-appealable;
(d) by
any of
the Sellers if prior to the Closing Date there shall have been a material
Breach
of any of the representations, warranties, covenants or agreements of the
Buyer
contained in this Agreement
which cannot be or has not been cured within twenty (20) days after notice
thereof to the Buyer;
(e) by
the
Buyer if prior to the Closing Date there shall have been a material Breach
of
any of the representations, warranties, covenants or agreements on the part
of
any of the Companies or the Sellers contained in this Agreement
which cannot be or has not been cured within twenty (20) days after notice
thereof to the Sellers, or (ii) a Material Adverse Event shall have
occurred and be continuing; or
(f) by
any
Seller in the event that such Seller’s Liquidating Trustee believes that it
would violate its fiduciary duty to any Seller or its respective beneficiaries
close the transactions contemplated hereby.
(g) by
the
Buyer if, in its sole reasonable discretion, its due diligence investigation
shows an unacceptable business and/or financial condition of the
Company.
8.2. Effect
of Termination.
(a) If
this Agreement
is terminated in accordance with Section 8.1,
this Agreement
shall hereafter become null and void and of no further force or effect, except
that the terms and provisions of this Section 8.2
and the
following other Sections shall survive such termination and shall remain
in full
force and effect:
Section 10.3
(Notices),
Section 10.4
(Entire
Agreement),
Section 10.11
(Expenses),
and
Section 10.12
(Governing
Law).
(b) (i) In
connection with the negotiation and execution of this Agreement, the Sellers
agree that the Buyer has devoted significant time and effort and has incurred
significant expense in analyzing the transactions contemplated herein. In
the
event that the Buyer terminates this Agreement pursuant to any applicable
subsection of Section
8.1 (subject
to the proviso in Section
8.1(b))
or if
any of the Sellers terminates this Agreement pursuant to
Sections 8.1(c) or
8.1(f) or 8.1(g),
the
Buyer shall be entitled to the return of the Deposit; otherwise, the Deposit
shall be distributed to the Sellers as forth on Exhibit A
upon
termination of this Agreement. Upon any termination, the parties hereto covenant
and agree to immediately provide the Escrow Agent with written instructions
regarding the return or distribution of the Deposit. For the avoidance of
doubt,
each party hereto covenants and agrees to provide such instructions with
respect
to such termination in accordance herewith, even if such party disputes the
basis of such termination. If a dispute exists, such dispute shall be noted
in
the instructions delivered to the Escrow Agent, and the parties hereto agree
that in the event of such a dispute, the instructions delivered to the Escrow
Agent shall include an instruction that the Escrow Agent treat the Deposit
in
accordance with Section F of the Escrow Agreement.
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(ii)
In
addition to the foregoing, in the event this Agreement is terminated by either
of the Sellers pursuant to Section
8.1(f) and
instructions have been given to the Escrow Agent to return the Deposit to
the
Buyer, the Sellers shall, within three (3) business days of receipt of a
copy of
such instructions, pay $100,000 in immediately available funds to the Buyer
as
liquidated damages and not as a penalty (payable $50,000 each by each of
the
Sellers) (the “Break-Up
Fee”).
If the
Deposit is returned to the Buyer as provided in (i) above, or, with respect
to a
termination pursuant to Section
8.1(f),
the
Deposit is returned and the Break-Up Fee is paid, then such payments under
this
Section
8.2(b)
shall be
the sole and exclusive remedy for the Buyer upon the termination of this
Agreement.
(c) Except
as
expressly set forth in Section
8.2(b)
above,
any termination of this Agreement
shall not relieve any party hereto from any Liability for any Breach of its
representations, warranties, covenants or agreements contained herein. The
exercise of a right of termination under this Agreement by any party hereto
shall not be an election of remedies.
ARTICLE
9
INDEMNIFICATION
9.1. Survival.
(a) Representations
and Warranties.
All of
the representations and warranties of the parties contained in this Agreement
shall survive the Closing and shall continue in full force and effect until
December 1, 2006.
(b) Covenants
and Agreements.
All of
the covenants and agreements of the parties shall terminate upon the
Closing.
(c) Timely
Claims.
No party
shall have any liability (for indemnification or otherwise) based upon any
claim
for indemnification arising out of the Breach of any representation or warranty
contained in this Agreement
or in any of the other Transaction Documents, to be fulfilled or complied
with
at or before the Closing unless such party is given notice asserting a claim
with respect thereto prior to the termination of the applicable time period
set
forth under Section 9.1(a).
Any
representation or warranty as to which a claim for indemnification (including
a
contingent claim) shall have been asserted during the survival period shall
continue in effect with respect to such claim until such claim shall have
been
finally resolved or settled.
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9.2. Terms
of Indemnification.
Subject
to the terms and provisions of this Agreement,
(a) the
Sellers, severally but not jointly and severally, shall indemnify the
Buyer
Parties against, and shall protect, defend and hold harmless the Buyer
Parties
from, all Damages arising out of, relating to, or resulting from (i) any
Breach of any of the Sellers’ or any of the Companies’ respective
representations or warranties contained in this Agreement,
including the schedules hereto or in any of the other Transaction Documents;
or
(ii) any Proceeding, commenced at any time (and without regard to any
survival period for any representation or warranty contained in this
Agreement),
that is brought (x) by any beneficial interest holder of any of the
Sellers, or (y) on a derivative basis by any beneficial interest holder of
any Seller on behalf of such Seller, and, in the case of each of (x)
and (y)
above, which relates to or arises out of any event, fact or circumstance
existing prior to the Closing and relates to the transactions contemplated
by
this Agreement, including without limitation the liabilities, damages,
costs and
expenses incurred by the Companies and the Buyer (including attorney’s fees) in
connection with the defense, settlement or other resolution
thereof;
(b) the
Buyer
shall indemnify the Seller Parties against, and shall protect, defend
and hold
harmless the Seller Parties from, all Damages arising out of, relating
to, or
resulting from any Breach of the Buyer’s representations or warranties contained
in this Agreement
or in any of the other Transaction Documents.
9.3. Procedures
with Respect to Third-Party Claims.
Each
party shall promptly notify the other parties upon its having knowledge
of the
occurrence of any claim, assertion, event, action or proceeding against
the
Company or any party hereto which would give rise to a claim for indemnification
under this Article 9.
Promptly after the occurrence of any claim, assertion, event, action or
proceeding against the Company or any party hereto which could give rise
to a
claim for indemnification under this Article 9,
the
party seeking indemnification (the “Indemnified
Party”)
shall
give notice to the party from whom indemnification is sought (the “Indemnifying
Party”)
if it
wishes to assert a claim for indemnification under this Article 9.
The
failure of the Indemnified Party to timely deliver any notice hereunder
shall
not reduce the liability of the Indemnifying Party except to the extent
the
Indemnifying Party demonstrates that the defense of the subject claim has
been
prejudiced by such failure. The Indemnifying Party shall then be entitled
to
participate in such action or proceeding and, to the extent that it shall
wish,
to assume the defense thereof with counsel satisfactory to such Indemnified
Party (but prior to assuming such defense the Indemnifying Party shall
have
acknowledged in writing its indemnification obligation hereunder). After
notice
from the Indemnifying Party to the Indemnified Party of its election to
assume
the defense of a claim, the Indemnifying Party shall not be liable to such
Indemnified Party under Section 9.2
for any
fees of other counsel or any other expenses, in each case subsequently
incurred
by such Indemnified Party in connection with the defense thereof, other
than
reasonable costs of investigation. If an Indemnifying Party assumes the
defense
of such an action (a) no compromise or settlement thereof may be effected
by the Indemnifying Party without the Indemnified Party’s consent (which shall
not be unreasonably withheld) unless (i) there is no finding or admission
of any violation of law or any violation of the rights of any person and
no
effect on any other claims that may be made against the Indemnified Party
and
(ii) the sole relief provided is monetary damages that are paid in full by
the Indemnifying Party, and (b) the Indemnifying Party shall have no
liability with respect to any compromise or settlement thereof effected
by the
Indemnified Party without its consent (which shall not be unreasonably
withheld). If notice is given to an Indemnifying Party of the commencement
of
any action and it does not, within thirty (30) days after the Indemnified
Party’s notice is given, give notice to the Indemnified Party of its election
to
assume the defense thereof (and in connection therewith, acknowledges in
writing
its indemnification obligation hereunder), the Indemnifying Party shall
be bound
by any determination made in such action or any compromise or settlement
thereof
effected by the Indemnified Party. Notwithstanding the foregoing, if an
Indemnified Party determines in good faith that there is a reasonable
probability that any action may materially and adversely affect it or its
Affiliates other than as a result of monetary damages, such Indemnified
Party
may, by notice to the Indemnifying Party, assume the exclusive right to
defend,
compromise or settle such action, but the Indemnifying Party shall have
no
liability with respect to judgment entered in any action so defended, or
a
compromise or settlement thereof entered into, without its consent (which
shall
not be unreasonably withheld).
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9.4. Indemnification
Cap and Threshold.
(a) Indemnification
Cap.
Subject
to Section
9.6,
the
maximum aggregate liability of each party for claims for indemnification
made
pursuant to Section 9.2
shall be
Three Hundred Thousand and 00/100 Dollars ($300,000) (the “Indemnification
Cap”).
(b) Indemnification
Threshold.
No Buyer
Party shall be entitled to make any claim for indemnification pursuant to
Section 9.2(a)
unless
and until the aggregate amount of Damages with respect to all such claims
that
may be made by all Buyer Parties pursuant to this Article 9
as a
result of a Breach of any of the Sellers’ representations, warranties,
obligations, covenants or agreements set forth in this Agreement exceeds
an
aggregate of Fifty Thousand and 00/100 Dollars ($50,000) (the “Indemnification
Threshold”),
after
which the Sellers shall be liable for the full amount of such Damages, subject
to the Indemnification Cap. No Seller shall be entitled to make any claim
for
indemnification pursuant to Section 9.2(b)
unless
and until the aggregate amount of Damages with respect to all such claims
that
may be made by the Sellers pursuant to this Article 9
exceeds
the Indemnification Threshold, after which the Buyer shall be liable for
the
full amount of such Damages, subject to the Indemnification Cap.
(c) Applicability
of Indemnification Cap and Threshold.
Notwithstanding anything in this Article 9
to the
contrary, neither the Indemnification Cap nor the Indemnification Threshold
shall apply to or against, and the parties shall be liable under this
Article 9
for, the
entirety of any Damages resulting from, arising out of, in the nature of,
or
caused by (i) any fraudulent, willful or intentional Breach by any party of
any of its representations, warranties or covenants set forth herein, or
(ii) the indemnification of the Buyer Parties contained in Section
9.2(a)(ii).
9.5. Additional
Indemnification Provisions.
(a) Other
Recoveries; Insurance.
Notwithstanding anything herein to the contrary, no party shall be entitled
to
indemnification or reimbursement under any provision of this Agreement for
any
amount to the extent such party or its Affiliates has been indemnified or
reimbursed for such amount under any other provision of this Agreement, the
exhibits attached hereto, or any document executed in connection with this
Agreement or otherwise. Furthermore, in the event any Damages related to
a claim
by the Buyer is covered by insurance, the Buyer agrees to use commercially
reasonable efforts to seek recovery under such insurance and the Buyer shall
not
be entitled to recovery from the Sellers (and shall refund amounts received
up
to the amount of indemnification actually received) with respect to such
Damages
to the extent, and only to the extent, the Buyer recovers the insurance payment
specified in the policy.
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(b) Mitigation.
The
parties shall take all commercially reasonable steps (to the extent then
available or possible) to mitigate all Damages upon and after becoming aware
of
any event which could reasonably be expected to give rise to such
Damages.
9.6. Exclusive
Remedy.
Except
with respect to claims arising out of, in the nature of, or caused by any
fraudulent, willful or intentional Breach by any party of any of its
representations or warranties set forth herein, and notwithstanding anything
to
the contrary contained herein, the indemnification provided in this Article 9
shall be
the sole and exclusive remedy after the Closing Date available to the parties
for Breach. Further, the sole remedy of the Buyer Parties pursuant to this
Article
9
for
Damages shall be to offset, on a several, but not joint and several basis,
against the Additional Consideration that may become payable to a Seller
pursuant to Section
2.3.
In the
event that no Additional Consideration is paid, the Buyer Parties shall not
be
entitled to collect Damages from either Seller. Nothing contained herein,
however, shall preclude a party from seeking injunctive relief or specific
performance, under circumstances where such relief might be appropriate,
provided that the moving party shall not be entitled to ancillary relief
in the
nature of Damages or fee awards unless specifically so provided for
herein.
ARTICLE
10
GENERAL
PROVISIONS
10.1. Parties
in Interest; Successors and Assigns; No Third Party
Rights.
This Agreement
shall be binding upon and inure to the benefit of the parties hereto and
their
respective successors and permitted assigns, and, nothing in this Agreement,
express or implied, is intended to or shall confer upon any other Person
any
legal or equitable right, title, privilege, benefit, interest, remedy or
claim
of any nature whatsoever under or by reason of this Agreement, or any term
or
provision hereof.
10.2. Assignment.
This Agreement
and the rights, title, privileges, benefits, interests, remedies and obligations
hereunder may not be assigned by any party hereto, by operation of law or
otherwise; provided,
however,
that
the Buyer may (a) assign any or all of its rights, title, privileges,
benefits, interests and remedies hereunder to any one or more of its Affiliates;
(b) designate any one or more of its Affiliates to perform its obligations
hereunder (in any or all of which cases the Buyer nonetheless shall remain
responsible for the performance of all of its obligations hereunder); and
(c) assign any or all of its rights, title, privileges, benefits, interests
and remedies hereunder to and for the benefit of any lender to the Buyer
for the
purpose of providing collateral security.
-19-
10.3. Notices.
All
notices, requests, claims, instructions and other communications required
or
permitted under this Agreement
shall be in writing and shall be (a) delivered personally, (b) sent by
national overnight
courier,
with all costs and expenses therefore prepaid (c) sent by certified mail,
postage prepaid, return receipt requested, or (d) by facsimile
transmission, with a confirmation sent by one of the foregoing methods to
the
address of such party as such party has notified the other parties in writing
prior to the date hereof, together with copies to such other persons as such
parties may request.
10.4. Entire
Agreement.
This Agreement,
together with each of the other Transaction Documents, constitute the entire
agreement among the parties with respect to the subject matter hereof and
thereof, and supersede all prior or contemporaneous agreements and
understandings, whether written or oral, among the parties hereto, or any
of
them, with respect to the subject matter hereof and thereof.
10.5. Counterparts
and Facsimile Signatures.
This Agreement
may be executed in any number of counterparts, and by the different parties
hereto in separate counterparts, each of which when executed shall be deemed
to
be an original, and all of which, taken together, shall be deemed to constitute
one and the same instrument. This Agreement may be executed by facsimile
signature.
10.6. Severability.
If any
term or other provision of this Agreement
is deemed to be invalid, illegal or incapable of being enforced under any
Law,
Order or public policy, all other terms, conditions and provisions of
this Agreement
shall nevertheless remain in full force and effect. Upon such determination
that
any term or other provision is invalid, illegal or incapable of being enforced,
the parties hereto shall negotiate in good faith to modify this Agreement
so as to effect the original intent of the parties as closely as possible
in an
acceptable manner to the end that the transactions contemplated hereby are
fulfilled to the fullest extent possible.
10.7. Amendment.
This Agreement
may not be amended or modified except by a written instrument, specifically
referring to this Agreement
and signed by each of the parties hereto.
10.8. Waiver.
Neither
the failure nor any delay of any party to this Agreement
to assert or exercise any right, power, privilege or remedy under
this Agreement,
any of the other Transaction Documents or otherwise, or to enforce any term
or
provision hereof or thereof, shall constitute a waiver of such right, power,
privilege or remedy, and no single or partial exercise of any such right,
power,
privilege or remedy shall preclude any other or further exercise of such
right,
power, privilege or remedy or the exercise of any other right, power, privilege
or remedy. The rights, powers, privileges and remedies of the parties to
this
Agreement are cumulative and not alternative. Any waiver of any right, power,
privilege or remedy hereunder or under any of the Transaction Documents shall
be
valid and binding only if set forth in a written instrument specifically
referring to this Agreement
and signed by the party or parties giving such waiver, and shall be effective
only in the specific instance and for the specific purpose for which it is
given. At any time prior to the Closing Date, the Buyer with respect to the
Sellers and the Sellers with respect to the Buyer may, subject to and in
accordance with the provisions of this Section 10.8,
(a) waive any inaccuracies in the representations and warranties contained
in this Agreement
or in any of the other Transaction Documents; and (b) waive compliance with
any of the conditions, covenants or agreements contained in this Agreement
or in
any of the other Transaction Documents.
-20-
10.9. Further
Assurances.
Each
party hereto shall do and perform or cause to be done and performed all further
acts and things and shall execute and deliver all further agreements,
certificates, instruments and documents as any other party may reasonably
request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
10.10. Legal
Counsel.
Each
party to this Agreement
acknowledges and represents that it has been represented by its own separate
legal counsel in connection with the negotiations and preparation of this
Agreement and each of the other Transaction Documents to which it is a party,
and in connection with the transactions contemplated hereby and thereby,
with
the opportunity to seek advice as to its legal rights from such counsel.
Each
party hereto further represents that it is being independently advised as
to the
tax consequences of such transactions.
10.11. Expenses.
The
Sellers shall bear all reasonable and customary fees, costs and expenses
incurred in connection with this Agreement
(including the preparation, negotiation and performance hereof) and the
transactions contemplated hereby (including fees and disbursements of attorneys,
accountants, agents, representatives and financial and other
advisors).
10.12. Governing
Law.
This Agreement
shall be governed by, and construed in accordance with, the Laws of the State
of
Delaware without regard to any conflict of Laws principles that would cause
the
application of the Laws of any other jurisdiction.
[The
remainder of this page is intentionally left blank. Signature page
follows.]
-21-
IN
WITNESS WHEREOF,
the
parties hereto have duly caused this Membership
Interest Purchase Agreement to be executed, as an instrument under seal,
as of
the date first above written.
The
Buyer: WEST
CO LLC
Signature:
_________________________________
Printed
Name: _____________________________
Title:
____________________________________
|
The
Sellers:
|
WILMINGTON
TRUST COMPANY,
not in its individual capacity but solely as Liquidating Trustee
of
|
AFG
INVESTMENT TRUST C LIQUIDATING TRUST
and
AFG
INVESTMENT TRUST D LIQUIDATING TRUST
Signature:
_______________________________
Printed
Name: ____________________________
Title:
___________________________________
The
Companies: C&D
IT LLC
By:
AFG
Investment Trust C Liquidating Trust and AFG Investment Trust C Liquidating
Trust D, its Members and Managers
By:
Wilmington Trust Company, not in its individual capacity but solely as
Liquidating Trustee
Signature:
_________________________________
Printed
Name: ______________________________
Title:
_____________________________________
-1-
EFG
KIRKWOOD LLC
By:
AFG
XXXX Corp., as Manager
Signature:
_________________________________
Printed
Name: ______________________________
Title:
_____________________________________
EFG
PALISADES LLC
By:
AFG
XXXX Corp., as Manager
Signature:
_________________________________
Printed
Name: ______________________________
Title:
_____________________________________
EXHIBIT
A
|
Seller
|
C&D
IT LLC
|
EFG
Kirkwood LLC and
EFG
Palisades LLC
|
TOTAL
|
||||
|
Interest
|
Purchase
Price Allocation (net of Deposit)
|
Deposit
Allocation
|
Interest
|
Purchase
Price Allocation (net of Deposit)
|
Deposit
Allocation
|
||
|
AFG
Investment Trust C Liquidating Trust
|
50%
|
$1,039,292.60
|
$19,572.37
|
40%
Class A Interest
|
$1,845,835.38
|
$34,761.49
|
$2,939,461.84
|
|
AFG
Investment Trust D Liquidating Trust
|
50%
|
$1,039,292.60
|
$19,572.37
|
30%
Class A Interest
|
$1,385,579.42
|
$26,093.77
|
$2,470,538.16
|
|
TOTAL:
|
$2,078,585.20
|
$39,144.74
|
70%
Class A Interest
|
$3,231,414.80
|
$60,855.26
|
$5,410,000.00
|
|
EXHIBIT
B
ESCROW
AGREEMENT
This
Agreement is entered into as of the _____ day of ________ 2006 by and among
West
Co LLC,
a
Florida limited liability company (“West
Co”)
(the
“Buyer”),
AFG
Investment Trust C Liquidating Trust
(“Trust
C Liquidating Trust”),
AFG
Investment Trust D Liquidating Trust
(“Trust
D Liquidating Trust”
and,
together with Trust C Liquidating Trust, each a “Seller”
and,
together, the “Sellers”),
C&D
IT LLC, EFG Kirkwood LLC and
EFG Palisades LLC, each
a
Delaware limited liability company (each a “Company”
and
together the “Companies”)
and
Wilmington
Trust Company,
as
escrow agent (the "Escrow
Agent").
This
Agreement is being entered into in connection with the execution of a Membership
Interest Purchase Agreement (the “Purchase Agreement”) among the Buyer, the
Sellers and the Companies relating to the sale of equity interests in the
Companies (the “Interests”). All terms used but not defined herein shall have
the meanings set forth in the Purchase Agreement.
In
consideration of the payments herein provided for and the mutual agreements
of
the parties herein contained, the parties hereto agree as follows:
(A) The
Escrow Agent has established in its own name a special account, Number
_____________ (the "Escrow Account"). All deposits by the parties in the
Escrow
Account shall be made by wire transfer of immediately available funds to
the
Escrow Agent as follows: ABA# ________, Account No. __________, Name: West
Co
Escrow, Ref: Attn: [Xxxxx Xxxxxxxx, VP]. All funds deposited therein
shall be held without interest;
(B) Upon
execution of this Agreement, West Co shall forward to the Escrow Account
the sum
of One Hundred Thousand Dollars ($100,000) (the “Deposit”);
(C) Thereupon,
upon written instructions by all parties hereto, the Escrow Agent is authorized
and directed to take such action as the parties may direct pursuant to the
terms
of the Purchase Agreement;
(D) Any
instructions, directions or notices required to be delivered hereunder to
the
Escrow Agent (i) shall be in writing, (ii) may be delivered by hand
delivery, reputable overnight courier, facsimile or telecopy, and (iii) may
be executed in one or more counterparts, each of which shall constitute an
original and all of which, taken together, shall constitute one and the same
instrument. All notices to the Escrow Agent shall be addressed as
follows:
Wilmington
Trust Company
Xxxxxx
Square North
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000
Attention:
Corporate Trust Administration
Fax:
(000) 000-0000
-1-
(E) The
Escrow Agent shall act as stakeholder and shall not be responsible for
genuineness, validity, sufficiency or collectibility of funds deposited
hereunder or any description of property or other thing therein, and shall
not
be required to determine the existence of any fact or decide any questions
of
law. It shall not be liable in any respect on the account of the identity,
authority or rights of the persons executing or delivering or purporting
to
execute or deliver any such funds, its duties hereunder being limited to
the
safekeeping of such funds received by it as Escrow Agent, and for the delivery
of the same in accordance with this Agreement. The parties hereto recognize
that
Wilmington Trust Company is acting as Escrow Agent hereunder and also as
the
Liquidating Trustee of each of the Sellers. Each of the parties hereto
recognizes that acting in both capacities creates a potential conflict of
interest with respect to Wilmington Trust Company, and each party hereto
hereby
waives any and all such conflicts of interest.
(F) In
accepting any funds delivered hereunder it is agreed and understood between
the
parties hereto that the Escrow Agent will not be called upon to construe
any
contract or instrument deposited herewith, and shall be required to act in
respect of the deposits herein made only upon the joint consent in writing,
of
the parties hereto, and in the failure of such agreement or consent, it reserves
the right to hold any money in its possession concerning this escrow, until
a
mutual agreement in writing has been reached between all of said parties
and
delivered to it or until delivery is legally authorized and ordered by final
judgment or decree of the courts of the State of Delaware or other court
of
competent jurisdiction; and in case the Escrow Agent obeys or complies with
any
judgment, order or decree of a court of competent jurisdiction, it shall
not be
liable to any of the parties hereto nor to any other person, firm or corporation
by reason of such compliance, notwithstanding that any such judgment, order
or
decree is subsequently reversed, modified, annulled, set aside or
vacated.
(G) The
Escrow Agent, as part of the consideration for the acceptance of this escrow,
will not be liable for any acts or omissions done in good faith, nor for
any
claims, demands or losses, nor for any damages made or suffered by any party
to
this escrow, except such as may arise through or be caused by its bad faith
or
gross negligence.
(H) The
Escrow Agent's fee in the amount of $2,500 and expenses shall be paid by
the
Sellers at the Closing. In addition, the Escrow Agent shall be entitled to
reasonable compensation, including attorney's fees and expenses for unusual
circumstances or, in the event it is necessary to seek an order by a court,
it
may employ attorneys for the reasonable protection of the escrow property
and of
itself and shall have a lien on all money, documents or property held in
escrow
to cover the same.
(I) In
the
event the escrow instructions set forth in paragraph (C) above have not been
accomplished on or before 5:00 P.M., E.S.T., December 1, 2006, the Escrow
Agent shall have the right to consider this Agreement of no further force
and
effect, and shall have the right to return the Deposit to West Co and the
delivery of the Deposit in accordance herewith shall relieve the said Escrow
Agent from any further liability with reference thereto; this provision,
however, may at any time be waived by the Escrow Agent. An extension of the
term
of this escrow may be entered into at any time by the mutual consent of the
parties hereto, upon the condition, however, that the same be reduced to
writing
and delivered to and accepted by the said Escrow Agent.
-2-
(J) It
is
further understood and agreed between the parties that this Agreement is
the
only contract between the Escrow Agent and the parties hereto and that it
supersedes any other contract with reference to this escrow deposit, insofar
as
said Escrow Agent is concerned, and that the said Escrow Agent may rely
absolutely hereon to the exclusion of any and all other agreements between
the
parties hereto.
(K) This
Agreement may be executed in multiple counterparts, each of which shall
constitute an original, all of which, taken together, shall constitute one
and
the same instrument.
(L) This
Agreement shall be governed by and construed in accordance with the laws
of the
State of Delaware.
[The
remainder of this page is left intentionally blank. Signature page
follows.]
-3-
This
Escrow Agreement has been executed by the parties hereto as of the date set
forth above.
The
Buyer: WEST
CO LLC
Signature:
_________________________________
Printed
Name: _____________________________
Title:
____________________________________
|
The
Sellers:
|
WILMINGTON
TRUST COMPANY,
not in its individual capacity but solely as Liquidating Trustee
of
|
AFG
INVESTMENT TRUST C LIQUIDATING TRUST
and
AFG
INVESTMENT TRUST D LIQUIDATING TRUST
Signature:
_______________________________
Printed
Name: ____________________________
Title:
___________________________________
The
Companies: C&D
IT LLC
By:
AFG
Investment Trust C Liquidating Trust and AFG Investment Trust C Liquidating
Trust D, its Members and Managers
By:
Wilmington Trust Company, not in its individual capacity but solely as
Liquidating Trustee
Signature:
_________________________________
Printed
Name: ______________________________
Title:
_____________________________________
-4-
EFG
KIRKWOOD LLC
By:
AFG
XXXX Corp., as Manager
Signature:
_________________________________
Printed
Name: ______________________________
Title:
_____________________________________
EFG
PALISADES LLC
By:
AFG
XXXX Corp., as Manager
Signature:
_________________________________
Printed
Name: ______________________________
Title:
_____________________________________
-5-
The
foregoing escrow is accepted as of the above date.
The
Escrow Agent: WILMINGTON
TRUST COMPANY
Signature:
________________________
Printed
Name: _____________________
Title:
____________________________
-6-
EXHIBIT
C-1
ASSIGNMENT
INSTRUCTIONS
_________________,
2006
EFG
Kirkwood LLC
EFG
Palisades LLC
c/o
AFG
XXXX Corporation, Manager
000
Xxxxx
Xxxxx
Xxxxxxxx,
XX 00000
Attn:
Xxxxx X. Xxxxx, Senior Vice President
Re: Assignment
of membership interests in
EFG
Kirkwood LLC and EFG Palisades LLC (the “Companies”)
To
Whom
It May Concern:
The
undersigned, being the holder of 40% of the Class A Interests in EFG
Kirkwood LLC and 40% of the Class A Interests in EFG Palisades LLC, hereby
consents to and approves the transfer and assignment of the foregoing interests
on the date hereof as contemplated in that certain Membership Interest Purchase
Agreement of even date herewith. The undersigned hereby instructs the Managers
of each of the Companies to reflect such transfer and assignment on the books
and records of such Companies.
AFG
INVESTMENT TRUST C LIQUIDATING TRUST
By:
Wilmington Trust Company, not in its individual capacity, but solely as
Liquidating Trustee
By:
______________________________________
Printed
Name:______________________________
Its:
______________________________________
-1-
EXHIBIT
C-2
ASSIGNMENT
INSTRUCTIONS
_________________,
2006
EFG
Kirkwood LLC
EFG
Palisades LLC
c/o
AFG
XXXX Corporation, Manager
000
Xxxxx
Xxxxx
Xxxxxxxx,
XX 00000
Attn:
Xxxxx X. Xxxxx, Senior Vice President
Re: Assignment
of membership interests in
EFG
Kirkwood LLC and EFG Palisades LLC (the “Companies”)
To
Whom
It May Concern:
The
undersigned, being the holder of 30% of the Class A Interests in EFG
Kirkwood LLC and 30% of the Class A Interests in EFG Palisades LLC, hereby
consents to and approves the transfer and assignment of the foregoing interests
on the date hereof as contemplated in that certain Membership Interest Purchase
Agreement of even date herewith. The undersigned hereby instructs the Managers
of each of the Companies to reflect such transfer and assignment on the books
and records of such Companies.
AFG
INVESTMENT TRUST D LIQUIDATING TRUST
By:
Wilmington Trust Company, not in its individual capacity, but solely as
Liquidating Trustee
By:
______________________________________
Printed
Name:______________________________
Its:
______________________________________
