EXHIBIT 10.2
PURCHASE AGREEMENT
This Purchase Agreement (together with all exhibits and schedules hereto
and as the same may be amended, supplemented or otherwise modified from time to
time in accordance with the terms hereof, the "Agreement") is made and entered
into as of this 29th day of November, 2002, by and among First Reserve Fund IX,
L.P., a Delaware limited partnership (and, except as otherwise provided herein,
any permitted assignee to whom Buyer's rights and obligations are transferred
pursuant to Section 8.12, "Buyer"), Tokheim Corporation, an Indiana corporation
("Parent"), Sunbelt Hose & Petroleum Equipment, Inc., a Georgia corporation
("Sunbelt"), Tokheim RPS, LLC, a Delaware limited liability company ("RPS"),
Tokheim Investment Corp., a Texas corporation ("TIC"), Gasboy International,
Inc., a Pennsylvania corporation ("Gasboy"), Tokheim Services, LLC, an Indiana
limited liability company ("Services") and Tokheim and Gasboy of Canada Ltd., a
corporation organized under the laws of Ontario ("TG Canada") (Parent, Sunbelt,
RPS, TIC, Gasboy, Services and TG Canada being collectively referred to as
"Sellers").
RECITALS
WHEREAS, Sellers are engaged in the business of manufacturing and
servicing electronic and mechanical petroleum dispensing systems in the United
States and Canada (the "Business");
WHEREAS, Sellers, except for TG Canada, filed voluntary petitions (the
"Petitions") for reorganization relief pursuant to Chapter 11 of Title 11 of the
United States Code, 11 U.S.C. Sections 101-1330 (as amended, the "Bankruptcy
Code"), in the United States Bankruptcy Court for the District of Delaware (the
"Bankruptcy Court") (the "Bankruptcy Cases") on November 21, 2002 (the "Petition
Date"); and
WHEREAS, Buyer desires to acquire certain of the assets, properties,
rights, and claims relating to the Business (including the MSI line of business
("MSI"), the Gasboy Assets and Tokheim Assets), together with certain
obligations and liabilities relating thereto, in the manner and subject to the
terms and conditions set forth herein and in accordance with Sections 105, 363
and 365 of the Bankruptcy Code (the "Contemplated Transactions"); provided,
however, that the Contemplated Transactions shall in all events exclude the sale
or acquisition of (a) the Equity Securities and assets of all direct and
indirect subsidiaries of Parent (other than Sellers), including those listed on
Schedule 1.1 (such Equity Securities and assets are hereinafter referred to as
the "Excluded Subsidiaries"), (b) the Equity Securities of Sellers, (c) the
Excluded Assets and (d) the Excluded Liabilities.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
ARTICLE I
PURCHASE AND SALE OF BUSINESS
Section1.1 Acquired Assets. On the terms and subject to the
conditions set forth in this Agreement, at the Closing, Sellers shall sell,
assign, transfer, convey and deliver, or cause to be sold, assigned,
transferred, conveyed and delivered, to Buyer, and Buyer shall purchase and
accept from Sellers, (i) all of Sellers' rights, title and interests in and to
(x) all of the assets, properties, rights and claims of TG Canada relating
primarily to the Gasboy line of business, and (y) all of the assets, properties,
rights and claims of Gasboy, in each case excluding the Excluded Assets and the
Excluded Subsidiaries ((x) and (y) being collectively referred to herein as the
"Gasboy Assets") and (ii) all of
Sellers' rights, title and interests in and to the Business, including all the
assets, properties, rights, and claims of Sellers related to the Business
including MSI (other than the Excluded Assets, the Excluded Subsidiaries and the
Gasboy Assets), as the same shall exist at the Closing (such rights, title and
interests in and to all such assets, properties, rights and claims described in
this clause (ii) being collectively referred to herein as the "Tokheim Assets"
and, together with the Gasboy Assets, the "Acquired Assets"). The sale and
purchase of the Acquired Assets shall be free and clear of all Encumbrances (to
the extent applicable as provided in the Sale Order), in each case other than
Permitted Encumbrances and Assumed Liabilities. Notwithstanding anything to the
contrary contained in this Agreement, the terms Acquired Assets, Assumed
Liabilities, Excluded Assets and Excluded Liabilities do not refer to the
Excluded Subsidiaries. The Acquired Assets shall include, but not be limited to,
all of Sellers' rights, title and interests in and to the assets, properties,
rights and claims described in the following clauses (a) through (m) below
(except as expressly excluded under Section 1.2 below):
(a) All of those items of equipment, machinery, vehicles,
tooling, dies, accessories, furniture and other tangible personal property owned
by Sellers listed or referred to on Schedule 1.1(a) (which Schedule may include
items that are subject to capitalized leases) and any other tangible personal
property acquired by Sellers in the ordinary course of business consistent with
past practice after the date hereof but prior to the Closing in connection with
the Business (collectively, the "Personal Property"). As used in this Agreement,
the Personal Property shall not include the fixtures located on real property
not included in Real Property or Inventory.
(b) All supplies, goods, materials, work in process, inventory
and stock in trade owned by Sellers for use or sale in the ordinary course of
the Business (collectively, the "Inventory").
(c) The owned real property described on Schedule 1.1(c)
(together with the real property subject to the Real Property Leases, the "Real
Property").
(d) Any improvements located on the owned Real Property but
excluding improvements provided by space tenants to the extent provided in the
relevant space tenant lease.
(e) Sellers' rights, title and interests (i) as lessee under
those real property leases described on Schedule 1.1(e)(i) (collectively, the
"Real Property Leases"), (ii) as lessee under those equipment, personal property
and intangible property leases, rental agreements, licenses and similar
Contracts described on Schedule 1.1(e)(ii) (collectively, the "Other Leases"),
and (iii) as party to those other Contracts (including IP License-In Agreements
and IP License-Out Agreements), orders, purchase orders or licenses described on
Schedule 1.1(e)(iii) (collectively, the "Other Contracts" and together with the
Other Leases and the Real Property Leases, the "Assumed Contracts"; provided,
that the term "Assumed Contracts" shall include all Contracts of the type set
forth in clause (i), (ii) or (iii) above that relate exclusively to the Business
and are entered into in the ordinary course of business consistent with past
practice, including those consented to by Buyer, after the date hereof and on or
prior to Closing in accordance with this Agreement (which Contracts shall be
added to the appropriate schedule by Sellers); provided, however, that the term
"Assumed Contracts" shall not include capitalized leases, notes, indentures or
other similar debt instruments, guarantees or evidences of indebtedness for
borrowed money). At any time at least fifteen (15) Business Days prior to the
date scheduled by the Bankruptcy Court for the Sale Hearing, Buyer in its sole
discretion by written notice to Seller may (i) include any additional Contract
to which any Seller is a party and that constitutes an "executory contract" as
such term is used in Section 365 of the Bankruptcy Code ("Executory Contract")
to Schedule 1.1(e)(i), Schedule 1.1(e)(ii) or Schedule 1.1(e)(iii) and (ii)
exclude any Executory Contract (other than Contracts of TG Canada) from Schedule
1.1(e)(i), Schedule 1.1(e)(ii) or Schedule 1.1(e)(iii). Any Executory Contract
so included pursuant to clause (i) of the preceding sentence shall be deemed an
"Assumed Contract" hereunder for all purposes and any Executory Contract so
excluded pursuant to clause (ii) of the
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preceding sentence shall no longer be deemed an "Assumed Contract" hereunder.
Sellers shall designate those Contracts that are Executory Contracts and in
addition, upon Buyer's reasonable request, in accordance with the Bidding
Procedures Order, Sellers shall provide additional detailed information as to
the obligations under any Executory Contract sufficient for Buyer to make an
informed assessment whether to include or exclude such Executory Contract from
the Assumed Contracts.
(f) All insurance proceeds, claims and causes of action with
respect to or arising in connection with (i) any Assumed Contract or (ii) any
damage to any Acquired Asset occurring prior to the Closing Date, to the extent
not expended for the repair or restoration of the Acquired Asset.
(g) All accounts receivable arising out of the operation of the
Business (except for receivables relating exclusively to Contracts that are not
Assumed Contracts) and, subject to being an Excluded Asset, all causes of action
relating or pertaining to such accounts receivable (collectively, the
"Receivables") and all notes receivable and trade accounts arising out of the
Business and, subject to being an Excluded Asset, all causes of action relating
or pertaining to such notes receivable and trade accounts.
(h) All Permits set forth on Schedule 1.1(h).
(i) All rights, claims or causes of action against third parties
relating to the Acquired Assets under all warranties, representations and
guarantees related to the Acquired Business made by suppliers, manufacturers and
contractors (except for such rights, claims or causes of action that relate
solely to the Excluded Liabilities described in Section 1.4(c)).
(j) All credits, claims for refunds, prepaid expenses, prepaid
rent, deferred charges, advance payments, security or other deposits, including
recoverable deposits, and prepaid items (and, in each case, security interests
relating thereto) arising from or in connection with, or related to, the
Acquired Assets, each as described on Schedule 1.1(j).
(k) All books, records, files, invoices, product specifications,
advertising materials, cost and pricing information, supplier lists, business
plans, catalogs, customer literature, quality control records and manuals,
customer lists, order lists and credit records of customers (including all data
and other information stored on discs, tapes and other media) and like items
pertaining to the Acquired Business (excluding Sellers' accounting systems and
software (to the extent not part of operational assets), corporate books and
records relating to their respective organization and existence), provided that
Sellers may retain copies of (i) all books and records included in the Acquired
Assets to the extent necessary or useful for the administration of the
Bankruptcy Cases or any other action to which it is a party, the filing of any
Tax Return or compliance with any Applicable Laws and (ii) all personnel files.
(l) Any interest in and to any refund of Taxes relating to the
Acquired Business to the extent such Taxes are for, or applicable to, any
taxable period (or portion thereof) beginning after the Closing Date and any
transfer Taxes or other Taxes which are the responsibility of Buyer under this
Agreement.
(m) The Intangible Property owned or held by Gasboy and the
Intangible Property owned or held by TG Canada which relates primarily to the
Gasboy line of business, and the Intangible Property owned or held by Sellers
which relates exclusively to MSI, in each case including without limitation (i)
the registered and common law trademarks and trade names, service marks and
service names, and registrations and applications for registration thereof, and
foreign counterparts thereof, Internet domain names and associated content,
logos, designs, slogans, trade dress and general intangibles of like nature,
together with the goodwill associated therewith, as set forth on Schedule
1.1(m)(i), (ii) the
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patents, patent applications and foreign counterparts thereof, as set forth on
Schedule 1.1(m)(ii), (iii) the copyrights, copyright applications and copyright
registrations and foreign counterparts thereof, as set forth on Schedule
1.1(m)(iii) and (iv) the inventions, customer lists, discoveries, trade secrets,
improvements, formulae, practices, processes, methods, technology, know-how and
similar proprietary rights and related licenses and other agreements set forth
on Schedule 1.1(m)(iv) (collectively, the "Gasboy/MSI Intangible Property").
Section 1.2 Excluded Assets. Notwithstanding anything to the
contrary in this Agreement, the Acquired Assets shall not include any of
Sellers' rights, title or interests in the following (collectively, the
"Excluded Assets"):
(a) Those items expressly excluded pursuant to the provisions of
Section 1.1 above, any Contract that is not an Assumed Contract and receivables
relating exclusively to such Contract.
(b) Equity Securities of Sellers or any direct or indirect
subsidiary of Sellers, including the Excluded Subsidiaries.
(c) All cash, cash equivalents and short term investments
(including that certain deposit held in escrow pursuant to the Escrow Agreement,
dated October 15, 2002, between Parent and Schlumberger Technologies, Inc. and
the escrow related to the sale by Parent of the Dupont building, among others).
(d) Any Inventory transferred or used, and any Receivables
collected, by Sellers in the ordinary course of the Business prior to the
Closing.
(e) Any Contracts terminated or expired prior to the Closing in
accordance with their terms or in the ordinary course of the Business.
(f) All preference or avoidance claims and actions of Sellers,
including, without limitation, any such claims and actions arising under
Sections 544 through 553, inclusive, of the Bankruptcy Code.
(g) Sellers' rights under this Agreement and all Consideration
payable or deliverable to Sellers pursuant to the terms and provisions hereof.
(h) All refundable deposits made with third parties after
commencement of the Bankruptcy Cases.
(i) Insurance proceeds, claims and causes of action with respect
to or arising in connection with (i) any Contract which is not assigned to Buyer
at the Closing, or (ii) any item of tangible or intangible property that is not
an Acquired Asset.
(j) Except as provided in Section 1.1(l), any interest in and to
any refund of Taxes relating to (i) Sellers or (ii) the Business for, or
applicable to, any taxable period (or portion thereof) ending on or prior to the
Closing Date (the "Pre-Closing Tax Period"), including any interest in and to
any refund of any Taxes not relating to the Acquired Business for any period.
(k) Any property (including real, personal, tangible or
intangible) listed on Schedule 1.2(k).
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(l) The following Intangible Property of Sellers: (i) the
registered and common law trademarks and trade names, service marks and service
names, and registrations and applications for registration thereof, and foreign
counterparts thereof, Internet domain names and associated content, logos,
designs, slogans, trade dress and general intangibles of like nature, together
with the goodwill associated therewith, as set forth on Schedule 1.2(l)(i), (ii)
the patents, patent applications and foreign counterparts thereof, as set forth
on Schedule 1.2(l)(ii), (iii) the copyrights, copyright applications and
copyright registrations and foreign counterparts thereof, as set forth on
Schedule 1.2(l)(iii), and (iv) the inventions, discoveries, trade secrets,
improvements, formulae, practices, processes, methods, technology, know-how and
similar proprietary rights and related licenses and other agreements set forth
on Schedule 1.2(l)(iv).
(m) Intercompany notes receivable.
Section 1.3 Assumed Liabilities. On the terms and subject to the
conditions setforth in this Agreement, at the Closing Buyer shall assume and/or
accept assignment from Sellers and thereafter pay, perform or discharge in
accordance with their terms the following obligations of Sellers (the "Assumed
Liabilities"), without duplication:
(a) Any and all liabilities, obligations and commitments
(collectively, "Liabilities") under the Assumed Contracts, in each case, to the
extent that such Assumed Contracts are validly assigned to Buyer. The Assumed
Liabilities shall include Cure Costs in excess of the Cure Cap.
(b) Any and all Liabilities of TG Canada that are set forth on
Schedule 1.3(b) (other than the Excluded Liabilities).
Section 1.4 Excluded Liabilities. Notwithstanding any provisions of
this Agreement to the contrary, Buyer shall not assume, or in any way be liable
or responsible for, any Liabilities of Sellers except for the Assumed
Liabilities, whether direct or indirect, known or unknown, fixed or contingent
or otherwise, liquidated, xxxxxx or inchoate, due or to become due (the
"Excluded Liabilities"). In furtherance of the foregoing and not in limitation
thereof, except for the Assumed Liabilities, in no event shall Buyer be liable
for:
(a) Any environmental Liabilities, claims or contingencies,
including without limitation any indemnification obligations or other
Liabilities, claims or contingencies of Sellers (including any Liabilities,
claims or contingencies with respect to the property owned by Sellers in
Chicago, Illinois) under any Environmental Law.
(b) Any matters subject to litigation, arbitration, investigation
or other proceedings (i) pending or threatened against any of the Sellers,
regardless of when any such proceeding was commenced or the manner in which any
Liabilities, claims or contingencies pertaining to any such proceeding are
currently, or may be in the future, treated or classified in the Bankruptcy
Cases or (ii) instituted against any of the Sellers after Closing to the extent
based upon, or arising out of, any fact, condition, event or circumstance which
occurs or is otherwise existing on or prior to the Closing Date.
(c) Any product liability or claims for injury to person or
property against any of the Sellers, regardless of when made or asserted,
relating to any products that have been manufactured, marketed, licensed,
distributed or sold in the operation of the Business or services performed by
the Business on or prior to the Closing Date, or which is imposed, or asserted
to be imposed, against any of the Sellers by operation of law, in connection
with any service performed or any products that have been manufactured,
marketed, licensed, distributed or sold in the operation of the Business on or
prior to the Closing Date.
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(d) Liabilities, claims and contingencies associated with any and
all notes, indentures and other similar debt instruments or evidence of
indebtedness for borrowed money, guarantees, accruals and payables of Sellers to
third parties or other intercompany payables.
(e) Any Liability, claim or contingency under any employee
benefit, compensation, or fringe benefit plan, program, Contract, or arrangement
of the Sellers, including, but not limited to any "employee benefit plan" (as
such term is defined in section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or would be so defined if the plan were
subject to ERISA), severance pay plan, or change in control agreement.
(f) Any employment related Liabilities, claims or contingencies,
including without limitation, claims resulting from the failure of Buyer to hire
any employee of any Seller, arising or accruing on, before, or as the immediate
result of the consummation of the Contemplated Transactions.
(g) Any Taxes of Sellers for any period ending on or before the
Closing Date other than property or transfer Taxes for which Buyer is
responsible pursuant to Sections 2.4 and 5.6 of this Agreement, respectively.
(h) Any Liabilities arising under the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended, with respect to any employee or former
employee of Sellers, including the qualified beneficiaries of such employees,
whose qualifying event occurs on or prior to Closing, or where such Liability
relates to their employment with Sellers or coverage under Sellers' health
plans.
Section 1.5 Transfer of Acquired Assets and Assumption of Assumed
Liabilities.
(a) At the Closing, the sale, transfer, assignment, conveyance
and delivery of the Acquired Assets (other than the owned Real Property and the
Assumed Contracts) shall be effected pursuant to a xxxx of sale and assignment
(the "Xxxx of Sale").
(b) At the Closing, the transfer of each owned Real Property
shall be effected pursuant to a deed, in the customary form for the state in
which such owned Real Property is located (collectively, the "Deeds"), together
with any reasonably necessary transfer declarations or other filings.
(c) At the Closing, Sellers shall license the Intangible Property
(other than the Gasboy/MSI Intangible Property) to Buyer pursuant to customary
instruments, to be negotiated in good faith by Sellers and Buyer prior to the
Closing, providing for the terms set forth in Schedule 1.5(c) (collectively, the
"Intangible Property License Agreements"). Notwithstanding the foregoing, to the
extent the Acquired Assets include computer equipment that contains commercial
software, Sellers shall use commercially reasonable efforts to cause the
ownership of such commercial software to be transferred to Buyer.
(d) At the Closing, the assumption of the Assumed Liabilities and
the assignment of the Assumed Contracts shall be effected pursuant to an
assignment and assumption agreement (the "Assumption Agreement") and such other
documents and instruments as may be necessary in order to effect Buyer's
assumption of the Assumed Liabilities and the assignment of the Assumed
Contracts.
(e) At the Closing, the transfer of the Gasboy/MSI Intangible
Property shall be effected pursuant to customary instruments of assignment or
transfer, in form suitable for recording in the appropriate office or bureau or
other Governmental Authority and in form reasonably satisfactory to
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Buyer, and any other assignments or instruments with respect to any such
Intangible Property for which an assignment or instrument is required to assign,
transfer and convey such Gasboy/MSI Intangible Property (collectively, the
"Gasboy/MSI Intangible Property Instruments").
Section 1.6 Consideration. The consideration for the Acquired
Assets shall be(a) forty two million dollars ($42,000,000), as may be adjusted
pursuant to Section 2.6 (the "Cash Consideration"), and (b) the assumption of
the Assumed Liabilities. The payment of the Cash Consideration and the
assumption of the Assumed Liabilities are referred to herein as the
"Consideration". The Cash Consideration shall be deemed allocated as follows:
(x) 71.43% shall be allocated for the purchase of the Gasboy Assets, and (y)
28.57% shall be allocated for the purchase of the Tokheim Assets. The Assumed
Liabilities shall be allocated to the portion of the Acquired Business to which
they most closely relate. The Cash Consideration shall be payable at the Closing
as follows:
(a) Buyer shall pay an amount equal to the Cash Consideration
less the total amount of the Deposit and all interest accrued thereon, to
Sellers by wire transfer to such bank account(s) designated in writing by Parent
on behalf of Sellers.
(b) Pursuant to the terms of the Escrow Agreement, the Escrow
Holder shall continue to hold the Deposit (including interest accrued thereon),
which shall be disbursed in accordance with the Escrow Agreement and Section
2.7.
Section 1.7 Deposit. In connection with the mutual execution and
delivery of this Agreement (the date of such mutual execution and delivery is
sometimes referred to herein as the "Execution Date"), Buyer shall promptly, but
in any event within three (3) Business Days of the Execution Date, deposit into
escrow (the "Escrow") with State Street Bank and Trust Company (the "Escrow
Holder") 3.5% of the Cash Consideration (the "Deposit") in immediately
available, good funds, to be held and disbursed pursuant to the Escrow
Agreement, dated on or about the Execution Date, among the Sellers, Buyer and
the Escrow Holder (the "Escrow Agreement"). Such Escrow Agreement shall include
the provisions set forth in this Section 1.7, including any provisions
incorporated by reference herein. Upon receipt of the Deposit, the Escrow Holder
shall immediately deposit the Deposit into an interest-bearing account. The
Deposit shall only become nonrefundable upon the earlier of (x) the Closing Date
or (y) the termination of this Agreement pursuant to Section 7.1(d) (a "Buyer
Default Termination"). In the event the Deposit becomes non-refundable by reason
of a Buyer Default Termination, the provisions of Section 1.8 below shall apply.
At the Closing, all of the Deposit (and any interest accrued thereon) shall be
credited toward payment of the Cash Consideration. If this Agreement is
terminated for any reason other than a Buyer Default Termination, the Escrow
Holder shall return to Buyer the Deposit (and any interest accrued thereon) upon
receipt of notice by Buyer to the Escrow Holder. The Escrow Holder's escrow fees
and charges shall be paid one-half by Sellers and one-half by Buyer.
Section 1.8 Liquidated Damages. Buyer and Sellers hereby agree that
it is impossible to determine accurately the amount of damages that Sellers
would suffer if the Contemplated Transactions were not consummated as a result
of a Buyer Default Termination. As a result, notwithstanding anything in this
Agreement to the contrary, the parties hereby agree that (a) in the event of a
Buyer Default Termination, Buyer shall be obligated to pay liquidated damages in
the amount of the Deposit (and any interest accrued thereon) and (b) such
liquidated damages shall be the sole and exclusive remedy of Sellers against
Buyer by reason of such breach and such termination. Accordingly, if liquidated
damages are payable hereunder, the Escrow Holder shall disburse the Deposit (and
any interest accrued thereon) to Parent, on behalf of all Sellers, to be
retained by Parent for its own account.
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ARTICLE II
THE CLOSING
Section 2.1 Closing. The closing of the Contemplated Transactions
(the "Closing") shall take place at the offices of Skadden, Arps, Slate, Xxxxxxx
& Xxxx (Illinois), 000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
at 10:00 a.m. (CST) on the second Business Day following the satisfaction or
waiver (subject to Applicable Law) of the conditions set forth in Article VI
(other than those conditions that by their nature are to be fulfilled only at
the Closing, but subject to the fulfillment or waiver (subject to Applicable
Law) of such conditions), but not later than the Termination Date, or at such
other time and place as the parties hereto may mutually agree (such date, the
"Closing Date"). For purposes of this Agreement, the term "Business Day" means
any day other than a Saturday, Sunday or a day on which the banks in Chicago,
Illinois or New York, New York are authorized or obligated by Applicable Law or
executive order to close or are otherwise generally closed.
Section 2.2 Deliveries by Sellers. At the Closing, Sellers shall
deliver or cause to be delivered to Buyer the following:
(a) the officer's certificates contemplated by Sections 6.3(a)
and 6.3(b);
(b) copies of the resolutions duly adopted by the board of
directors or board of managers of each Seller authorizing and approving the
execution and delivery of this Agreement and the consummation of the
Contemplated Transactions, certified as true and in full force and effect as of
the Closing Date by the appropriate officers or managers of such Seller;
(c) certificates of incumbency for the respective officers or
managers of each Seller executing this Agreement and other Closing documents,
dated as of the Closing Date;
(d) the Xxxx of Sale duly executed by each Seller;
(e) each of the Deeds duly executed by the appropriate Seller
together with any necessary transfer declarations or other filings;
(f) each of the Intangible Property License Agreements and the
Gasboy/MSI Intangible Property Instruments duly executed by the appropriate
Sellers;
(g) the Transition Supply Agreement for the provision by Sellers
to Buyer of the services listed on Schedule 2.2(g), to be negotiated in good
faith by Sellers and Buyer prior to the Closing (the "Transition Supply
Agreement"), in form reasonably satisfactory to Buyer, duly executed by the
appropriate Sellers;
(h) except to the extent obviated by the Sale Order, copies of
all required consents, approvals and authorizations, in form and substance
reasonably satisfactory to Buyer, to the Contemplated Transactions from the
other parties to the material Assumed Contracts (including the consents
specified on Schedule 3.5) and to the extent necessary to validly assign to
Buyer the Intangible Properties;
(i) copies of the releases of Parent's lenders permitting (i) the
sale by TG Canada of its assets pursuant to this Agreement and (ii) the entering
into of the Intangible Property License Agreements and the Gasboy/MSI Intangible
Property Instruments;
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(j) evidence reasonably satisfactory to Buyer of compliance with
the notice provisions set forth in the Bidding Procedures Order and the Sale
Order;
(k) certificates of each Seller transferring real property of
such Seller's non-foreign status as provided in Treasury Regulation Section
1.1445-2(b);
(l) a certificate of good standing (to the extent the concept of
good standing is recognized in such jurisdiction) as of a recent date for TG
Canada; and
(m) such other duly executed documents, instruments and
certificates as may be necessary or appropriate to be delivered by Sellers
pursuant to the terms of this Agreement.
Section 2.3 Deliveries by Buyer. At the Closing, Buyer shall
deliver or cause to be delivered to Sellers the following:
(a) the Cash Consideration payable in the manner described in
Section 1.6;
(b) the officer's certificates contemplated by Sections 6.2(a)
and 6.2(b);
(c) the Transition Supply Agreement, in form reasonably
satisfactory to Sellers, duly executed by Buyer;
(d) the Assumption Agreement duly executed by Buyer; and
(e) such other duly executed documents, instruments and
certificates as may be necessary or appropriate to be delivered by Buyer
pursuant to this Agreement.
Section 2.4 Prorations and Ordinary Course Expenses. With respect
to Sellers, rent, current property and other ad valorem Taxes, prepaid
advertising and other items of expense (including, without limitation, any
prepaid insurance under the Assumed Contracts) and income relating to or
attributable to the Assumed Contracts during the month of Closing shall be
prorated between Sellers and Buyer as of the Closing Date. Rent relating to or
attributable to the Assumed Contracts shall be prorated on the basis of a thirty
(30) day month.
Section 2.5 Tax Allocation. Prior to the Closing, Buyer and Sellers
shall agree on an allocation of the Consideration (with respect to that portion
of the Consideration consisting of the Assumed Liabilities, only such Assumed
Liabilities that are liabilities for federal income Tax purposes) among the
Acquired Assets which allocation shall be consistent with Section 1060 of the
Code and the rules and regulations thereunder and with the allocation provided
in Section 1.6. Buyer and Sellers agree that such allocations shall be adjusted
to reflect appropriately any adjustment to the purchase price hereunder. Except
as required by Applicable Law, Buyer and Sellers agree to use such allocation,
as so adjusted, in filing all required forms under Section 1060 of the Code, and
all other Tax Returns. Buyer and Sellers further agree that the payment of the
Consideration to Sellers contemplated by Section 2.3 may be made to a single
Seller that is designated by Parent in writing as being authorized to act as
agent for all Sellers, whereupon each Seller shall be deemed to have received
the Consideration allocable to the Acquired Assets owned by such Seller in
accordance with the allocation determination under this Section 2.5.
Section 2.6 Pre-Closing Adjustment to Cash Consideration.
(a) Prior to the Closing Date, Sellers shall deliver to Buyer a
combined balance
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sheet of the Acquired Business as of December 31, 2002 (the "Pre-Closing Balance
Sheet") and a related statement of Current Assets for the Acquired Business as
of December 31, 2002 (the "Pre-Closing Current Assets Statement"). The
Pre-Closing Balance Sheet shall be prepared on a basis consistent with the
Monthly Financial Reports. The Current Assets as reflected on the Pre-Closing
Current Assets Statement shall be calculated by Sellers in good faith and in
their sole discretion, on a basis consistent with Schedule 2.6(a). In addition,
the Pre-Closing Current Assets Statement shall set forth separately the Current
Assets included within the Gasboy Assets (the "Gasboy Current Assets") and the
Current Assets included within the Tokheim Assets (the "Tokheim Current
Assets"), in each case as of December 31, 2002.
(b) To the extent that the Gasboy Current Assets shown on the
Pre-Closing Current Assets Statement (the "Pre-Closing Gasboy Current Assets")
are less than eight million one hundred thousand dollars ($8,100,000) (the
"Baseline Gasboy Current Assets"), the Cash Consideration payable at Closing by
Buyer shall be reduced by the amount of the difference. To the extent that the
Pre-Closing Gasboy Current Assets are higher than the Baseline Gasboy Current
Assets, the Cash Consideration payable at Closing by Buyer shall be increased by
the amount of the surplus. Notwithstanding anything to the contrary contained in
this Agreement, in no event shall any adjustment to the Cash Consideration
pursuant to this Section 2.6(b) exceed eight million one hundred thousand
dollars ($8,100,000).
(c) To the extent that the Tokheim Current Assets shown on the
Pre-Closing Current Assets Statement (the "Pre-Closing Tokheim Current Assets")
are less than thirty four million nine hundred thousand dollars ($34,900,000)
(the "Baseline Tokheim Current Assets"), the Cash Consideration payable at
Closing by Buyer shall be reduced by the amount of the difference. To the extent
that the Pre-Closing Tokheim Current Assets are higher than the Baseline Tokheim
Current Assets, the Cash Consideration payable at Closing by Buyer shall be
increased by the amount of the surplus. Notwithstanding anything to the contrary
contained in this Agreement, in no event shall any adjustment to the Cash
Consideration pursuant to this Section 2.6(c) exceed six million nine hundred
ninety nine thousand four hundred dollars ($6,999,400).
Section 2.7 Post-Closing Adjustment to Cash Consideration.
(a) As soon as practicable, but in no event later than forty-five
(45) days following the end of the month in which the Closing Date occurs, Buyer
shall deliver to Sellers a combined balance sheet of the Acquired Business as of
the Closing Date (the "Closing Balance Sheet") and a related statement of
Current Assets for the Acquired Business (the "Current Assets Statement") as of
the Closing Date. The Closing Balance Sheet shall be prepared on a basis
consistent with Parent's audited balance sheet for its fiscal year 2001 and in
accordance with GAAP consistently applied, subject to the absence of footnotes
and such changes as may be required by Schedule 2.6(a). The Current Assets as
reflected on the Current Assets Statement shall be calculated on a basis
consistent with Schedule 2.6(a). In addition, the Current Assets Statement shall
set forth separately the Gasboy Current Assets and the Tokheim Current Assets,
in each case as of the Closing Date.
(b) During the preparation of the Closing Balance Sheet and the
period of any dispute within the contemplation of this Section 2.7, Buyer shall,
with respect to the Acquired Business, (i) provide Sellers and Sellers'
authorized representatives upon reasonable advance notice with access during
normal business hours to the books, records, facilities, employees and
accountants of Buyer and, subject to the execution of any required releases, the
work papers used in the preparation of the Current Assets Statement, and (ii)
cooperate with Sellers and Sellers' authorized representatives, including the
provision on a timely basis of all information necessary or useful in connection
with Sellers' review of the Closing Balance Sheet and Current Assets Statement.
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(c) Buyer shall deliver a copy of the Current Assets Statement
and the Closing Balance Sheet to Sellers promptly after they have been prepared
and in no event later than forty-five (45) days after the end of the month in
which the Closing Date occurs. Unless Buyer delivers the Current Assets
Statement and the Closing Balance Sheet on or prior to the forty-fifth (45th)
day after the end of the month in which the Closing Date occurs, Buyer and
Seller shall be deemed to have accepted and agreed to use (i) the Pre-Closing
Gasboy Current Assets as the Gasboy Current Assets on the Adjusted Current
Assets Statement and (ii) the Pre-Closing Tokheim Current Assets as the Tokheim
Current Assets on the Adjusted Current Assets Statement, in each case for all
purposes hereunder. After receipt of the Current Assets Statement and the
Closing Balance Sheet, Sellers shall have thirty (30) days to review the Current
Assets Statement and the Closing Balance Sheet. Unless Sellers deliver written
notice to Buyer on or prior to the thirtieth (30th) day after Sellers' receipt
of the Current Assets Statement and the Closing Balance Sheet specifying all
disputed items and the basis therefor, Sellers shall be deemed to have accepted
and agreed to the Current Assets Statement. If Sellers so notify Buyer of their
objection to the Current Assets Statement, Sellers and Buyer shall, within
thirty (30) days following such notice (the "Resolution Period"), attempt to
resolve their differences and any resolution by them shall be final, binding and
conclusive.
(d) If, at the conclusion of the Resolution Period, Sellers and
Buyer have not resolved their differences with respect to the Current Assets
Statement, then Sellers and Buyer shall submit their dispute to Deloitte &
Touche LLP, or, if Deloitte & Touche LLP is unavailable or unwilling to be so
engaged, another accounting firm of national reputation agreed to by Buyer and
Sellers (the "Neutral Auditor"). Each party agrees to execute, if requested by
the Neutral Auditor, a reasonable engagement letter. All fees and expenses
relating to the work, if any, to be performed by the Neutral Auditor shall be
borne equally by Sellers and Buyer. In furtherance of the foregoing and not in
limitation thereof, Buyer shall only be liable for fifty percent (50%) of the
fees and expenses, if any, of the Neutral Auditor. The Neutral Auditor shall act
as an arbitrator to determine, based solely on presentations by Sellers and
Buyer, and not by independent review, only those issues still in dispute. The
Neutral Auditor's determination shall be made within thirty (30) days of their
selection, shall be made in accordance with the terms of this Section 2.7, and
shall be set forth in a written statement delivered to Sellers and Buyer and
shall be final, binding and conclusive. The term "Adjusted Current Assets
Statement," as hereinafter used, shall mean the definitive Current Assets
Statement agreed to by Buyer and Sellers in accordance with Section 2.7(c) or
the definitive Current Assets Statement resulting from the determinations made
by the Neutral Auditor in accordance with this Section 2.7(d). The Current
Assets reflected on the Adjusted Current Assets Statement shall not be more than
that specified by Sellers in the notice to Buyer pursuant to Section 2.7(c)
above nor less than that specified by Buyer on the Current Assets Statement.
(e) To the extent that the Pre-Closing Gasboy Current Assets are
higher than the Gasboy Current Assets shown on the Adjusted Current Assets
Statement, Sellers shall make a cash payment to Buyer equivalent to the amount
of the difference by causing the Escrow Holder to deliver to Buyer an amount, in
cash, from the Deposit (and any interest accrued thereon) equivalent to such
difference; provided that if the difference is greater than the amount of the
Deposit (and any interest accrued thereon), then Sellers shall first cause the
Escrow Holder to deliver to Buyer the entire Deposit (and any interest accrued
thereon) and shall then make a cash payment to Buyer of any amounts still owing
to Buyer with respect to such difference. To the extent that the Pre-Closing
Gasboy Current Assets are less than the Gasboy Current Assets shown on the
Adjusted Current Assets Statement, Buyer shall make a cash payment to Parent on
behalf of Sellers equivalent to the amount of the surplus. Notwithstanding
anything to the contrary contained in this Agreement, in no event shall the net
adjustments pursuant to this Section 2.7(e) and Section 2.6(b) (taking into
account adjustments made pursuant to this Section 2.7(e) and Section 2.6(b))
exceed eight million one hundred thousand dollars ($8,100,000) in the aggregate.
11
(f) To the extent that the Pre-Closing Tokheim Current Assets are
higher than the Tokheim Current Assets shown on the Adjusted Current Assets
Statement, Sellers shall make a cash payment to Buyer equivalent to the amount
of the difference by causing the Escrow Holder to deliver to Buyer an amount, in
cash, from the Deposit (and any interest accrued thereon) equivalent to such
difference; provided that if the difference is greater than the amount of the
Deposit (and any interest accrued thereon), then Sellers shall first cause the
Escrow Holder to deliver to Buyer the entire Deposit (and any interest accrued
thereon) and shall then make a cash payment to Buyer of any amounts still owing
to Buyer with respect to such difference. To the extent that the Pre-Closing
Tokheim Current Assets are less than the Tokheim Current Assets shown on the
Adjusted Current Assets Statement, Buyer shall make a cash payment to Parent on
behalf of Sellers in an amount equivalent to the amount of the surplus.
Notwithstanding anything to the contrary contained in this Agreement, in no
event shall the net adjustments pursuant to this Section 2.7(f) and Section
2.6(c) (taking into account adjustments made pursuant to this Section 2.7(f) and
Section 2.6(c)) exceed six million nine hundred ninety nine thousand four
hundred dollars ($6,999,400) in the aggregate.
(g) Any payment resulting from this Section 2.7 shall be referred
to as the "Post Closing Adjustment." For purposes of Sections 2.6 and 2.7,
"Current Assets" shall mean an amount equal to the aggregate book value of the
current assets of the Acquired Business reflected on a balance sheet prepared at
a given date; provided, however, that the calculation of Current Assets shall at
all times be consistent with Schedule 2.6(a), including a deduction for amounts
related to deferred sales Contracts that are Assumed Liabilities. With respect
to the preparation of the Closing Balance Sheet, no change in accounting
principles shall be made from those utilized in preparing Parent's audited
balance sheet for its fiscal year 2001, including, without limitation, with
respect to the nature of accounts, or the determination of the level of reserves
or level of accruals, except as required by Schedule 2.6(a). For purposes of the
preceding sentence, "change in accounting principles" includes all changes in
accounting principles, policies, practices, procedures or methodologies with
respect to financial statements, their classification or their display, as well
as all changes in practices, methods, conventions or assumptions (unless
required by objective material changes in underlying events) utilized in making
accounting estimates.
(h) Any Post Closing Adjustment will take place within ten (10)
days from the date of issuance or determination of the Adjusted Current Assets
Statement. If a Post Closing Adjustment is to be paid to Buyer, upon Buyer's
receipt of such Post Closing Adjustment, the Escrow Holder shall immediately be
instructed to disburse all remaining amounts of the Deposit (and any interest
accrued with respect to such remaining amounts) to Sellers. If a Post Closing
Adjustment is to be paid to Parent on behalf of Sellers or if no Post Closing
Adjustment is to be paid to either Buyer or Sellers, the Escrow Holder shall
immediately be instructed to deliver the Deposit (and all interest accrued
thereon) to Sellers.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLERS
Buyer hereby acknowledges and agrees that, except as otherwise expressly
provided herein, no Seller makes any representations or warranties whatsoever,
express or implied, with respect to any matter relating to the Acquired Assets.
Buyer will not have recourse to any Seller, except in the case of fraud, or to
any of the officers, directors, agents, representatives, creditors or
shareholders of any Seller, in the event any of the representations and
warranties made herein or deemed made are inaccurate in any respect as at any
time of expression thereof.
Sellers jointly and severally represent and warrant to Buyer as follows:
Section 3.1 Organization. Each Seller is a legal entity validly
existing under the
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laws of the jurisdiction of its organization and has the requisite
organizational power and authority to own or lease and to operate all of its
properties and assets and to carry on its business as it is now being conducted
and as presently proposed to be conducted by Sellers, except where the failure
to be so validly existing would not have a Material Adverse Effect. Each Seller
is duly qualified or licensed to do business and is in good standing under the
laws of each jurisdiction in which the conduct of its business or the character
or location of the properties and assets owned, leased or operated by it
requires such qualification, except where the failure to be so qualified would
not individually or in the aggregate have a Material Adverse Effect.
Section 3.2 Sufficiency of Assets. Except for the Excluded Assets,
the services to be provided to Buyer pursuant to the Transition Supply
Agreement, the Intangible Property subject to the Intangible Property License
Agreements, the assets of the Excluded Subsidiaries and the Business Employees
that are not Transferred Employees, the Acquired Assets constitute all assets
that are owned, leased or licensed by the Sellers and used in the Business as
currently conducted.
Section 3.3 Authority of Sellers; Binding Effect.
(a) Each Seller (other than TG Canada) has the requisite
corporate or other power and authority to file the Petitions and, subject to the
entry of the order of the Bankruptcy Court approving the consummation by Buyer
of the Contemplated Transactions under Sections 105, 363 and 365 of the
Bankruptcy Code, substantially in the form of Exhibit 3.3(a) (the "Sale Order"),
to execute and deliver, and to perform its obligations under, this Agreement and
to consummate the Contemplated Transactions. The filing of the Petitions, the
execution and delivery of this Agreement and, subject to the entry of the Sale
Order, the performance of its respective obligations hereunder have been duly
authorized by all necessary corporate or other action on the part of each Seller
(other than TG Canada), as the case may be. Subject to the entry of the Bidding
Procedures Order, each Seller (other than TG Canada) has full power and
authority to pay the Break-Up Fee and the Expense Reimbursement without further
order of the Bankruptcy Court, and the Break-Up Fee and the Expense
Reimbursement shall each constitute an administrative expense of Sellers (other
than TG Canada) under Section 503(b)(1) of the Bankruptcy Code.
(b) This Agreement has been duly authorized, executed and
delivered by each Seller (other than TG Canada) and, subject to the entry of the
Sale Order, assuming the due authorization, execution and delivery of this
Agreement by Buyer, will be a valid and binding obligation of each Seller (other
than TG Canada), enforceable against such Seller in accordance with its terms,
except as the availability of equitable remedies may be limited by equitable
principles of general applicability. Each of the instruments and agreements
hereunder to which each Seller (other than TG Canada) is or becomes a party has
been or will be duly authorized and, subject to the entry of the Sale Order, is
(or upon execution and delivery will be) a valid and binding obligation of such
Seller, enforceable against such Seller in accordance with its terms, except as
the availability of equitable remedies may be limited by equitable principles of
general applicability.
(c) TG Canada has the requisite corporate power and authority to
execute and deliver, and to perform its obligations under, this Agreement to
consummate the Contemplated Transactions. The execution and delivery by TG
Canada of this Agreement and the performance of its obligations hereunder have
been duly authorized by all necessary corporate action on the part of TG Canada.
TG Canada has full power and authority to pay the Break-Up Fee and the Expense
Reimbursement.
(d) This Agreement has been duly authorized, executed and
delivered by TG Canada and, assuming the due authorization, execution and
delivery of this Agreement by Buyer, will be
13
a valid and binding obligation of TG Canada, enforceable against TG Canada in
accordance with its terms, except as the availability of equitable remedies may
be limited by equitable principles of general applicability. Each of the
instruments and agreements hereunder to which TG Canada is or becomes a party
has been or will be duly authorized and is (or upon execution and delivery will
be) a valid and binding obligation of TG Canada, enforceable against TG Canada
in accordance with its terms, except as the availability of equitable remedies
may be limited by equitable principles of general applicability.
Section 3.4 Governmental Consents and Approvals. No consent,
approval, authorization of, declaration, filing or registration with, any
Governmental Authority is required to be made or obtained by any Seller in
connection with the execution, delivery and performance of this Agreement and
the consummation of the Contemplated Transactions, except for: (a) consents,
approvals, authorizations of, declarations, or filings with the Bankruptcy
Court, (b) the filing of a notification and report form under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), if necessary, and the expiration or earlier termination of the applicable
waiting period thereunder, (c) the filing of required notifications under
applicable foreign antitrust or competition laws and regulations and the receipt
of any necessary approvals thereunder, (d) consents, approvals, authorizations,
declarations, filings and registrations that are set forth in Schedule 3.4 and
(e) such other consents, approvals, authorizations, declarations, filings and
registrations the lack of which would not have a Material Adverse Effect. The
items referred to in clauses (a) through (d) of this Section 3.4 are hereinafter
referred to as the "Governmental Requirements."
Section 3.5 No Violations. Subject to the entry of the Sale Order,
and assuming that the Governmental Requirements will be satisfied, made, or
obtained and will remain in full force and effect, and assuming receipt of the
consents, approvals and authorization of the Persons listed on Schedule 3.5, the
execution, delivery and performance of this Agreement by Sellers, and the
consummation by any Seller of the Contemplated Transactions, and compliance by
any Seller with any of the provisions hereof, will not (a) violate any provision
of the charter, bylaws or any other organizational document of any Seller
(unless the same is rendered inapplicable by order the Bankruptcy Court), (b)
except for breaches and defaults of the type referred to in Section 365 of the
Bankruptcy Code, violate, conflict with, or result in the breach of or default
under (or with notice, lapse of time, or both would result in such a breach or
default), or constitute an event creating rights of acceleration, termination or
cancellation under, any Assumed Contract, on the date hereof, (c) violate any
order, writ, injunction, decree, statute, rule or regulation or other Applicable
Law applicable to any Seller or to any properties or assets of a Seller, (d)
result in the creation or imposition of any Encumbrance other than Permitted
Encumbrances on any asset of any Seller or (e) violate any Permit or the terms
of any Intangible Property, except in each case for violations, breaches,
defaults, accelerations, terminations or cancellations that (i) would not
individually or in the aggregate have a Material Adverse Effect or (ii) are
excused by or unenforceable as a result of the filing of the Petitions or the
applicability of any provision of the Bankruptcy Code.
Section 3.6 Title to and Use of Property. Upon entry and
effectiveness of, and in accordance with the terms of, the Sale Order and the
Bankruptcy Code, and upon receipt of the release of the Parent's lenders,
Sellers shall have the power and right to sell, assign, transfer and deliver, as
the case may be, to Buyer the Acquired Assets free and clear of any and all
Encumbrances other than Permitted Encumbrances and Assumed Liabilities.
Section 3.7 Financial Statements. The financial statements set
forth on Schedule 3.7 (the "Unaudited Financials") are in accordance with
Parent's books and records and reflect, in all material respects, the financial
position of the Business on a consolidated basis as of the date thereof, and the
results of operations and cash flows of the Business on a consolidated basis for
the fiscal period then ended, and have been prepared in accordance with GAAP
consistently applied during the periods
14
involved, subject to the absence of footnotes and year-end adjustments.
Section 3.8 Contracts. All material written Contracts to which any
Seller is a party have been delivered or made available to Buyer. Except as
otherwise set forth on Schedule 3.8 or as would not reasonably be expected to
have a Material Adverse Effect, each of the Assumed Contracts is valid, binding
and enforceable in accordance with its terms, and is in full force and effect.
Except as set forth on Schedule 3.8, except for defaults of the type referred to
in Section 365 of the Bankruptcy Code or as would not reasonably be expected to
have a Material Adverse Effect, there are no defaults (or events that, with
notice or lapse of time or both, would constitute a default) by any Seller or,
to the Knowledge of Sellers, any other party under any of the Assumed Contracts.
Except as set forth on Schedule 3.5, no Assumed Contract prohibits or requires
the consent of any Person to the Contemplated Transactions. Notwithstanding
anything herein to the contrary, it shall not be deemed a breach of the
representations set forth in this Section 3.8 if any party to an Assumed
Contract with any Seller terminates such Assumed Contract and enters into an
agreement with Buyer (or an Affiliate thereof) on substantially similar (or
better) terms.
Section 3.9 Intangible Property.
(a) All permits, licenses, sublicenses and other agreements or
permissions under which any Seller is a licensee or otherwise authorized to use,
practice, sublicense, distribute or otherwise commercially exploit in any manner
any material Intangible Property owned by a third party ("IP License-In
Agreements") are set forth in Schedule 3.9(a)(i) and are binding against such
Seller and in full force and effect, in each case except as would not reasonably
be expected to have a Material Adverse Effect. Sellers have provided or made
available true and accurate copies of all IP License-In Agreements to Buyer.
Except as set forth on Schedule 3.9(a)(i), the rights licensed under each IP
License-In Agreement by Gasboy or TG Canada, as the case may be, will be
exercisable by Buyer on and after the Closing to the same extent as by Gasboy or
TG Canada, as the case may be, prior to the Closing. No loss or expiration
(other than pursuant to its terms) of any material Intangible Property licensed
to any Seller under any IP License-In Agreement is pending or reasonably
foreseeable or, to the Knowledge of Sellers, threatened. No licensor under any
IP License-In Agreement has any ownership or exclusive license rights in or with
respect to any material improvements made by any Seller to the intellectual
property licensed thereunder. All permits, licenses, sublicenses and other
agreements or permissions under which any Seller is a licensor of any material
Intangible Property ("IP License-Out Agreements") are set forth in Schedule
3.9(a)(ii) and are binding against such Seller and in full force and effect, in
each case except as would not reasonably be expected to have a Material Adverse
Effect. Sellers have provided or made available true and accurate copies of all
IP License-Out Agreements to Buyer.
(b) Except as set forth on Schedule 3.9(b) or as would not
reasonably be expected to have a Material Adverse Effect, Sellers (i) are the
sole and exclusive owners, free and clear of all Encumbrances (except Permitted
Encumbrances), of all right, title and interest in their respective material
Intangible Property except to the extent such Intangible Property is licensed by
a third party to such Seller under an IP License-In Agreement and designated as
licensed-in Intangible Property in Schedule 3.9(b) ("Licensed-In Intangible
Property") and (ii) hold valid licenses with sufficient rights and
authorizations to use or practice the Licensed-In Intangible Property as
licensed to such Seller. Except as set forth on Schedule 3.9(b), Sellers have
the right to use and assign all right, title and interest in their respective
Intangible Property without seeking the approval or consent of any third party
and without payments to any third party. Except as indicated on the schedules to
this Agreement, the Intangible Property included in the Acquired Assets together
with the Intangible Property to be licensed to Buyer under the Intangible
Property License Agreement and any Intangible Property subject to a Contract
which has been made available or provided to Buyer and Buyer has elected not to
include as an Assumed Contract, constitutes all of the intellectual property
necessary to conduct the Acquired Business as it is
15
presently conducted, except as would not reasonably be expected to have a
Material Adverse Effect. All registrations and applications for the Intangible
Property are in full force and effect, except as would not reasonably be
expected to have a Material Adverse Effect. There are no existing or, to the
Knowledge of Sellers, threatened claims or proceedings by any Person relating to
the use by any Seller of the Intangible Property or challenging its ownership of
the same, except in each case as would not reasonably be expected to have a
Material Adverse Effect. Except as set forth on Schedule 3.9(b), to the
Knowledge of Sellers, there are no material infringing or diluting uses of the
Intangible Property, and no investigations are pending concerning the
possibility of such infringing or diluting use.
(c) Except as set forth on Schedule 3.9(c) and except to the
extent resolved prior to the date hereof, to the Knowledge of Sellers, no Seller
has interfered with, infringed upon, misappropriated, or otherwise come into
conflict with any intellectual property rights of third parties. Except as set
forth on Schedule 3.9(c) and except to the extent resolved prior to the date
hereof, no Seller has received any written charge, complaint, claim, or notice
alleging any such interference, infringement, misappropriation or violation, in
each case except as would not reasonably be expected to have a Material Adverse
Effect. No Intangible Property is subject to any outstanding order, judgment,
decree or stipulation restricting the use thereof by any Seller or, in the case
of any Intangible Property licensed to others, restricting the sale, transfer,
assignment or licensing thereof by any Seller to any Person, in each case except
as would not reasonably be expected to have a Material Adverse Effect.
(d) Sellers have taken commercially reasonable steps to maintain
the confidentiality of their trade secrets.
(e) The rights licensed under each Intangible Property License
Agreement will be enforceable in accordance with their terms, free and clear of
all Encumbrances (other than Permitted Encumbrances) and exercisable by Buyer on
and after the Closing and will be sufficient to operate the Acquired Business as
presently conducted.
Section 3.10 Compliance with Laws. Except as set forth on Schedule
3.10 or as would not reasonably be expected to have a Material Adverse Effect,
(a) the operations of the Business have been conducted in accordance with all
Applicable Laws (excluding all Environmental Laws) of all Governmental
Authorities having jurisdiction over Sellers and applicable to the Acquired
Assets and (b) no Seller has received any written notification or, to the
Knowledge of Sellers, oral notification from any Governmental Authority of any
asserted present or past failure by any Seller to comply with any such laws
during the past two (2) years which apply to the operation of the Business. To
the Knowledge of Sellers, each Seller has at all times since October 20, 2000,
been in compliance, in all material respects, with the Foreign Corrupt Practices
Act of 1977, as amended.
Section 3.11 Permits. Except as set forth on Schedule 3.11 or as
would not reasonably be expected to have a Material Adverse Effect, all Permits
(a) are valid and effective and no suspension or cancellation of any such
Permits is pending (other than pursuant to their terms) or, to the Knowledge of
Sellers, threatened, (b) represent all Permits required by any Governmental
Authority with jurisdiction over the Acquired Assets to own and operate the
Acquired Assets in the same manner as operated prior to the date hereof and (c)
to the Knowledge of Sellers, may be transferred or reissued to Buyer in
accordance with this Agreement and without the approval of any third party
(other than the Bankruptcy Court).
Section 3.12 Environmental Matters.
(a) Except as set forth on Schedule 3.12 or as would not
reasonably be expected to have a Material Adverse Effect, Sellers and the
Business are in compliance with all applicable
16
Environmental Laws. Sellers have obtained all permits and approvals required
under applicable Environmental Laws for the ownership and operation of the
Business, all such permits and approvals are in effect, no Seller has received
written notice of any action to revoke or modify any of such permits or
approvals, and the ownership and operation of the Business is in compliance with
all terms and conditions thereof except, in each such case, as would not
reasonably be expected to have a Material Adverse Effect. No Seller has received
written notice of any pending or threatened claim or investigation by any
Governmental Authority or any other Person concerning material potential
liability of any Seller under Environmental Laws in connection with the
ownership or operation of the Real Property during the last two (2) years. To
the Knowledge of Sellers, except as set forth on Schedule 3.12, there has not
been a Release to the Environment of any Hazardous Substance at, upon, in, from
or under any of the Real Property owned, leased or operated by any Seller or
their respective predecessors in interest or other properties upon which any
Seller's assets are or were located at any time. Except as would not reasonably
be expected to have a Material Adverse Effect, no Facility is currently, and no
such Facility has been, used as a treatment, storage or disposal facility for
Hazardous Substances; and no Hazardous Substances are present on any such
Facility, except in compliance with all applicable Environmental Laws.
(b) Except as set forth on Schedule 3.12, none of the Sellers is
a party to or bound by any contract to indemnify for any claim, demand, action,
suit, complaint, proceeding, investigation, demand letter or written notice for
non-compliance, violation or any other liability or cost with respect to any
Environmental law except, in each such case, as would not reasonably be expected
to have a Material Adverse Effect.
Section 3.13 Employees; Benefit Plans.
(a) Schedule 3.13(a) lists, as of the date hereof, all material
employee benefit, fringe benefit, retirement, deferred or incentive
compensation, equity compensation and welfare plans and programs of Sellers, or
otherwise applicable to current or former employees or directors of Sellers (to
the extent employed in the Business), or with respect to which any Seller (with
respect to the Business) may have any liability or obligation (each such plan is
referred to herein as a "Benefit Plan").
(b) Except as set forth on Schedule 3.13(b), each Seller (with
respect to the Business) is in compliance with all Applicable Laws concerning
employment of labor, compensation and employee benefits, except as would not
reasonably be expected to have a Material Adverse Effect.
Section 3.14 Litigation. Except for the Petitions or as set forth on
Schedule 3.14, there are no actions, claims, causes of action, proceedings,
suits, arbitrations, mediations or investigations pending or, to the Knowledge
of Sellers, threatened, against any Seller or any of their respective assets,
properties or rights, before any Governmental Authority that would result in a
Material Adverse Effect. Except as set forth on Schedule 3.14, no Seller is
subject to any order, judgment or decree entered in any lawsuit or proceeding.
Section 3.15 Real Property. Schedule 3.15 sets forth an accurate and
complete list of all real property or Facilities owned, leased or operated by
Sellers on the date hereof. True and complete copies of all owner's policies of
title insurance obtained for the benefit of any Seller with respect to the Real
Property have been delivered or made available to Buyer. Sellers own good and
marketable fee title to, or a valid leasehold interest in, the Real Property.
Except as set forth on Schedule 3.15, at the Closing Date, such title and such
leasehold interests shall be free and clear of all Encumbrances other than
Permitted Encumbrances. There is no pending or, to the Knowledge of Sellers,
threatened condemnation (or sale in lieu thereof) affecting any such real
property.
Section 3.16 Receivables. The Receivables constitute bona fide and
valid claims
17
arising in the ordinary course of business in a manner consistent with Sellers'
normal credit practices.
Section 3.17 Brokers. Except as set forth on Schedule 3.17, no
person, other than Houlihan, Lokey, Xxxxxx & Xxxxx Capital, is entitled to any
brokerage, financial advisory, finder's or similar fee or commission payable by
any Seller in connection with the Contemplated Transactions based upon
arrangements made by or on behalf of any Seller. All such fees shall be paid by
Sellers or their Affiliates.
Section 3.18 Product Liability. (a) Except as set forth on Schedule
3.18(a), there is no claim, action, suit, inquiry, proceeding or investigation
by or before any court or Governmental Authority pending or, to the Knowledge of
Sellers, threatened against or involving any Seller relating to or based upon
breach of product warranty (other than warranty service and repair claims in the
ordinary course of business not material in amount or significance), strict
liability in tort, negligent manufacture of product, negligent provision of
services or any other allegation of liability, including or resulting in product
recalls, arising from the materials, design, testing, manufacture, packaging,
labeling (including instructions for use), or sale of its products or from the
provision of services that would result in a Material Adverse Effect.
(b) None of the products sold or delivered by any Seller in the
conduct of the Business have, since October 20, 2000, contained asbestosis and
no claim has been made by any Person against any Seller regarding asbestos
arising from such products.
Section 3.19 Trade Relations. Schedule 3.19 contains a list of the
twenty largest customers (the "Material Customers") and twenty largest suppliers
(the "Material Suppliers") of the Acquired Business, as determined by the dollar
amount of sales to such customers and purchases from such suppliers for each of
the fiscal year ending November 30, 2001 and the nine months ended August 31,
2002.
Section 3.20 Taxes. Each Seller has properly and timely filed all
federal and all other material Tax Returns and other reports required to be
filed with respect to the Business and the Acquired Assets (or such Tax Returns
or other reports have been properly and timely filed on behalf of such Seller)
and has paid all Taxes shown due on such Tax Returns or other reports or that
otherwise are due. All such Tax Returns or reports were true, correct and
complete in all material respects as filed or subsequently amended.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Sellers as follows:
Section 4.1 Organization. Buyer is a limited partnership validly
existing and in good standing under the laws of the State of Delaware and has
all organizational power and authority to own or lease all of its properties and
assets and to carry on its business as it is now being conducted.
Section 4.2 Authority of Buyer; Binding Effect.
(a) Buyer has the requisite organizational power and authority to
execute and deliver and to perform its obligations under this Agreement. Upon
assignment of this Agreement by Buyer to Dresser, Inc. or a controlled Affiliate
of either Buyer or Dresser, Inc., in either case in accordance with Section
8.12, such assignee shall have the organizational power and authority to perform
18
Buyer's obligations under this Agreement and to consummate the Contemplated
Transactions. The execution and delivery by Buyer of this Agreement and the
performance of its obligations hereunder have been duly authorized by all
necessary organizational or other action on the part of Buyer. Upon assignment
of this Agreement by Buyer to Dresser, Inc. or a controlled Affiliate of either
Buyer or Dresser, Inc., in either case in accordance with Section 8.12, the
performance of Buyer's obligations hereunder by such assignee shall have been
duly authorized by all necessary corporate or other action on the part of such
assignee.
(b) This Agreement has been duly executed and delivered by Buyer
and, assuming the due authorization, execution and delivery of this Agreement by
each Seller, and subject to the entry of the Sale Order, will be a valid and
binding obligation of Buyer, enforceable against Buyer in accordance with its
terms, except as the availability of equitable remedies may be limited by
equitable principles of general applicability.
Section 4.3 Governmental Consents and Approvals. Except for
Governmental Requirements, no consent, approval, authorization of, declaration,
filing or registration with, any domestic or foreign government or regulatory
authority, is required to be made or obtained by Buyer in connection with the
execution, delivery and performance of this Agreement or, with respect to an
assignee of Buyer, in connection with the performance of this Agreement and the
consummation of the Contemplated Transactions.
Section 4.4 No Violations. The execution, delivery and performance
of this Agreement by Buyer, the performance of this Agreement by an assignee of
Buyer, the consummation by such assignee of the Contemplated Transactions and
compliance by Buyer and such assignee with any of the provisions hereof, will
not (a) except for the Governmental Requirements, require Buyer or such assignee
to obtain any consent, approval or action of, or make any filing with or give
notice to, any domestic or foreign governmental or regulatory body or any other
Person, (b) violate any provision of the charter or bylaws of Buyer or such
assignee, (c) violate, conflict with, or result in the breach of or default
under (or with notice, lapse of time, or both would result in such a breach or
default) any Contract to which Buyer or such assignee is party or by which
Buyer's or such assignee's properties or assets may be bound, (d) violate any
order, writ, injunction, decree, statute, rule or regulation applicable to Buyer
or such assignee or to any properties or assets of Buyer or such assignee or (d)
result in the creation or imposition of any Encumbrance other than Permitted
Encumbrances on any asset of Buyer or such assignee.
Section 4.5 Brokers. No person, is entitled to any brokerage,
financial advisory, finder's or similar fee or commission payable by Buyer in
connection with the Contemplated Transactions based upon arrangements made by or
on behalf of Buyer.
Section 4.6 Availability of Funds. Buyer currently has, on ten (10)
Business Days' notice, and will have on the Closing Date, sufficient funds
available to enable it to (a) pay the Cash Consideration pursuant to the terms
of this Agreement and (b) perform its other obligations hereunder.
Section 4.7 Assignment of Agreement. As of the Closing Date, Buyer
will have assigned its rights and obligations under this Agreement to Dresser,
Inc. or a controlled Affiliate of either of them; provided that, notwithstanding
such assignment, Buyer shall remain liable in all respects as set forth in this
Agreement.
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ARTICLE V
COVENANTS
Section 5.1 Conduct of Business by Sellers Pending the Closing.
(a) Subject to any obligations as a debtor or debtor in
possession under the Bankruptcy Code, as applicable, and except as set forth on
Schedule 5.1 or as otherwise contemplated by this Agreement, prior to the
Closing Date, each Seller shall use commercially reasonable efforts to preserve
intact, and operate in the ordinary course, the Acquired Business, including,
without limitation:
(i) not transferring, selling or disposing of any
Acquired Asset other than in the ordinary course of business;
(ii) preserving and retaining the books and records of
the Acquired Business in the ordinary course of business;
(iii) Sellers meeting their post-Petition Date
obligations (including under any Assumed Contract to which such Seller
is a party or bound), in each case taking into account the filing of the
Petitions, the directives of the Bankruptcy Court and the additional
covenants and agreements set forth herein;
(iv) maintaining insurance on the Acquired Assets at
commercially reasonable levels so long as such insurance is available on
commercially reasonable terms;
(v) with respect to TG Canada, not incurring any
Liability, except in the ordinary course of business;
(vi) with respect to TG Canada, not acquiring any real
property or undertaking or committing to undertake capital expenditures
exceeding $100,000;
(vii) with respect to TG Canada, not settling any legal
proceeding, suit, claim, mediation, arbitration or other proceeding
before any Governmental Authority relating to the Acquired Business
(except for any such proceeding, suit, claim, mediation or arbitration
relating solely to the Excluded Liabilities or the Excluded Assets or
that would not reasonably be expected to have a Material Adverse
Effect);
(viii) with respect to TG Canada, meeting its trade
payable obligations in the ordinary course of business consistent with
past practice;
(ix) using commercially reasonable efforts to collect
Receivables in the ordinary course of the Business; and
(x) not transferring assets between Gasboy Assets and
Tokheim Assets other than in the ordinary course of business on terms
consistent with past practice.
(b) Subject to any obligations as a debtor or debtor in
possession under the
20
Bankruptcy Code, and except as set forth on Schedule 5.1 or with the prior
written consent of Buyer, prior to the Closing Date, each of the Sellers shall
not take or omit to take any action, the effect of which would reasonably be
expected to (i) cause any of their representations and warranties herein to be
inaccurate in any material respect at the Closing or at any time prior to
Closing or (ii) have a Material Adverse Effect on the ability of Sellers to
consummate the Contemplated Transactions.
(c) Notwithstanding anything in this Agreement to the contrary,
this Section 5.1 shall not prevent Sellers from rejecting Contracts (other than
Contracts to which TG Canada is a party) that are not Assumed Contracts. Neither
Buyer nor any of its Affiliates shall be liable for any claims arising from the
rejection of such Contracts by Sellers.
Section 5.2 Access to Records and Properties of Sellers. From and
after the date of this Agreement, Sellers shall, upon reasonable advance notice,
afford to Buyer's officers, independent public accountants, counsel, lenders,
consultants and other representatives, access during normal business hours to
all books, documents, records, properties, facilities and personnel that relate
to the Business and furnish or cause to be furnished to Buyer such financial,
tax and other operating data and other information as Buyer may reasonably
request. From and after the date of this Agreement, Sellers shall afford
representatives of Buyer the right, upon reasonable notice and at reasonable
times, to inspect the Acquired Business and their condition and be provided
reasonable access to their officers, advisors, counsel, trade vendors,
customers, employees, properties and facilities, provided that Buyer shall not
take any action which unreasonably interferes with the operation of the
Business, provided, further, that Buyer shall not be entitled to perform any
environmental sampling. Buyer, however, shall not be entitled to access to any
trade vendors, customers, employees or any materials containing privileged
communications, competitive information, or information about employees, access
to or disclosure of which may violate any Applicable Law (including applicable
anti-trust law). Any and all information obtained by Buyer or Buyer's officers,
independent public accountants, counsel, lenders, consultants and other
representatives pursuant to this Section 5.2 shall be subject to and maintained
in compliance with the Confidentiality Agreement. Sellers hereby agree that they
will retain until all appropriate statutes of limitations (including any
extensions) expire, copies of all Tax Returns and supporting work schedules and
other records or information which may be relevant to such Tax Returns, except
for such Tax Returns, supporting work schedules and other records which Buyer
shall acquire as a consequence of this Agreement (provided that Sellers may
elect not to retain any such copies if they give such copies or make such copies
available to Buyer), and that they will not destroy or otherwise dispose of such
materials without first providing Buyer with a reasonable opportunity to review
and copy such materials. Sellers will promptly deliver to Buyer copies of all
pleadings, motions, notices, statements, schedules, applications, reports and
other papers filed in the Bankruptcy Cases relating to this Agreement or the
Contemplated Transactions. Notwithstanding the foregoing, Buyer shall have the
right to contact any Persons who were formerly employees of Sellers.
Section 5.3 Filings; Other Action.
(a) Subject to the terms and conditions herein provided, as
promptly as practicable, Sellers and Buyer shall (i) promptly make all filings
and submissions under the HSR Act and similar Applicable Laws with respect to
competition to the extent required or to the extent Sellers and Buyer together
deem appropriate, (ii) voluntarily meet with the United States Department of
Justice to discuss the terms of the Contemplated Transactions and cooperate with
and provide information as requested by the Department of Justice, (iii) use all
commercially reasonable efforts to cooperate with each other in (A) determining
which filings are required to be made prior to the Closing Date with, and which
material consents, approvals, permits or authorizations are required to be
obtained prior to the Closing Date from, any Governmental Authority in
connection with the execution and delivery of this Agreement and the
consummation of the Contemplated Transactions and (B) timely making all such
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filings and timely seeking all such material consents, approvals, permits or
authorizations and (iv) use all commercially reasonable efforts to take, or
cause to be taken, all other action and do, or cause to be done, all other
things reasonably necessary or appropriate with respect to any Governmental
Authority to consummate the Contemplated Transactions, as soon as practicable;
provided that Sellers shall not make any agreement or understanding affecting
the Acquired Business as a condition for obtaining any such consents, approvals,
permits or authorizations except with the prior written consent of Buyer;
provided further that nothing herein shall obligate Buyer to sell or otherwise
dispose of any of its properties or assets or to shut down any of its
facilities. In connection with the foregoing, Sellers will promptly provide to
Buyer, and Buyer will promptly provide to Sellers, copies of all correspondence,
filings or communications (or memoranda setting forth the substance thereof)
between such party or any of its representatives, on the one hand, and any
Governmental Authority or members of its staff, on the other hand, with respect
to all filings and submissions required hereunder.
(b) Upon the terms and subject to the conditions of this
Agreement, Buyer and Sellers shall use their commercially reasonable efforts to
take, or cause to be taken, all action, and to do, or cause to be done, all
things necessary, proper or advisable consistent with Applicable Law to cause
the conditions precedent to the Closing to be satisfied and to cause the Closing
to occur on or prior to the Termination Date, including, without limitation, to
obtain the consent, approval, release, estoppel, certificate, opinion and other
instrument of any third party or Governmental Authority necessary to deliver
title to any Acquired Asset, free and clear of all Encumbrances except for the
Permitted Encumbrances and to otherwise consummate the Contemplated Transactions
in accordance with the terms hereof.
(c) Sellers (other than TG Canada) shall use their reasonable
best efforts to obtain entry of the Bidding Procedures Order and the Sale Order,
in accordance with Section 5.7, subject to their obligations under the
Bankruptcy Code.
(d) Each Seller (other than TG Canada) agrees that it will
promptly take such actions as are reasonably intended to obtain the entry by the
Bankruptcy Court of the Sale Order, in accordance with Section 5.7, including,
without limitation, demonstrating that (i) Buyer is a "good faith" purchaser
under Section 363(m) of the Bankruptcy Code and (ii) Section 363(f) of the
Bankruptcy Code should apply to the sale of the Acquired Assets. In the event
that stay of the Sale Order is sought or any of such orders are appealed, each
of Sellers (other than TG Canada) and Buyer shall use their reasonable best
efforts to oppose such request for a stay or defend any such appeal, as
applicable. Buyer and Sellers (other than TG Canada) shall provide one another
with all information reasonably requested by the other in connection with such
actions.
(e) Sellers (other than TG Canada) shall provide Buyer with
copies of all material motions and applications prepared by Sellers (including
forms of the Sale Order and other orders and notices to interested parties)
relating to Buyer, this Agreement or the sale of the Acquired Business prior to
the filing thereof in the Bankruptcy Court.
Section 5.4 Transfers Not Effected as of Closing.
(a) Nothing herein shall be deemed to require the conveyance,
assignment or transfer of any Acquired Asset that by its terms or by operation
of Applicable Law cannot be freely conveyed, assigned, transferred or assumed.
To the extent the parties hereto have been unable to obtain any third party
consents or approvals required for the transfer of any Acquired Asset and to the
extent not otherwise prohibited by the terms of any Acquired Asset, Sellers
shall continue to be bound by the terms of such applicable Acquired Asset, and
Buyer shall pay, perform and discharge fully all of the obligations of Sellers
under such Acquired Asset from and after the Closing to the extent that the
corresponding
22
benefit is received by Buyer. Sellers shall, without consideration therefor,
pay, assign, and remit to Buyer promptly all monies, rights and other
consideration received in respect of such performance. Seller shall exercise or
exploit its rights in respect of such Acquired Assets only as reasonably
directed by Buyer and at Buyer's expense. Subject to and in accordance with
Section 5.3, for so long as Sellers continue to exist as legal entities
following the Closing Date, the parties hereto shall continue to use their
commercially reasonable efforts to obtain all such unobtained consents or
approvals required to be obtained by it at the earliest practicable date. If and
when any such consents or approvals shall be obtained, Sellers shall promptly
assign their rights and obligations thereunder to Buyer without payment of
consideration and Buyer shall, without the payment of any consideration
therefor, assume such rights and obligations. The parties shall execute such
good and sufficient instruments as may be necessary to evidence such assignment
and assumption.
(b) Joint Contracts. Nothing herein shall be deemed to require
the conveyance, assignment or transfer of any customer contracts or purchase
orders that are used or performed by both Sellers and any of the Excluded
Subsidiaries. To the extent not otherwise prohibited by the terms of any such
customer contracts or purchase orders, Sellers shall continue to be bound by the
terms of such applicable customer contracts or purchase orders, and Buyer shall,
as a subcontractor, pay, perform and discharge fully all of the obligations of
Sellers in North America under such customer contracts or purchase orders from
and after the Closing to the extent that the corresponding benefit is received
by Buyer. Sellers shall, without consideration therefor, pay, assign, and remit
to Buyer promptly all monies, rights and other consideration received in respect
of such performance. Seller shall exercise or exploit its rights in respect of
such customer contracts or purchase orders in North America as reasonably
directed by Buyer and at Buyer's expense. The parties shall use commercially
reasonable efforts to effect the foregoing and shall execute such good and
sufficient instruments as may be necessary to evidence such arrangements.
Section 5.5 Public Announcements. Except with respect to the filing
of the Petitions, the filing of the Bidding Procedures Order and the
announcement thereof, the filing of the Sale Order and the announcement thereof
and the provision of any notices as required by the Bankruptcy Court, neither
Buyer nor any Seller will issue, or permit any of its Affiliates to issue, any
press release or otherwise make any public statement with respect to this
Agreement or the Contemplated Transactions without the prior written consent of
the other (which consent shall not be unreasonably withheld), except as may be
required by Applicable Law or stock exchange regulation. Notwithstanding
anything in this Section 5.5 to the contrary, Sellers and Buyer will consult
with each other before issuing, and provide each other the opportunity to review
and comment upon, any such press release or other public statements with respect
to this Agreement and the Contemplated Transactions, whether or not required by
Applicable Law or stock exchange regulation.
Section 5.6 Transfer Taxes. Any transfer Taxes imposed on the
Contemplated Transactions, to the extent not exempt from payment under Section
1146(c) of the Bankruptcy Code, shall be paid by Buyer.
Section 5.7 Submission for Court Approval.
(a) As promptly as practicable, but in no event later than five
Business Days after the Execution Date, Sellers (other than TG Canada) shall
file with the Bankruptcy Court motions and notices, as may be appropriate, and a
proposed order substantially in the form of Exhibit 5.8(a) (the "Bidding
Procedures Order"), seeking the approval of Section 5.8 hereof and authorizing
the observance and performance of such terms by Sellers (other than TG Canada)
and Buyer during the pendency of the Bankruptcy Cases. Notwithstanding anything
to the contrary contained in this Agreement, to the extent the bidding
procedures contained in the Bidding Procedures Order entered by the Bankruptcy
Court differ
23
from the Bidding Procedures, and such bidding procedures are agreed to by Buyer,
the bidding procedures contained in the Bidding Procedures Order entered by the
Bankruptcy Court shall supersede the Bidding Procedures in all respects.
(b) As promptly as practicable, but in no event later than five
Business Days, after the filing of the Petitions with the Bankruptcy Court,
Sellers (other than TG Canada) shall file with the Bankruptcy Court motions and
notices, as may be appropriate, seeking the approval of this Agreement, Sellers'
(other than TG Canada) performance hereunder, the sale of the Acquired Assets
free and clear of all liens, claims (as defined in Section 101(5) of the
Bankruptcy Code) and interests, and the assumption and assignment of the Assumed
Contracts as provided in this Agreement. Buyer and TG Canada shall cooperate
with Sellers (other than TG Canada) in obtaining such Bankruptcy Court approval,
including providing evidence, if requested, of Buyer's ability to perform the
obligations of Sellers (other than TG Canada) under the Assumed Contracts to be
assumed by Buyer pursuant to Section 1.3(a).
Section 5.8 Bidding Procedures. Set forth below are bidding
procedures (the "Bidding Procedures") substantially in the form of those to be
employed with respect to this Agreement concerning the sale of the Acquired
Assets to Buyer (the "Sale"). The Sale is subject to competitive bidding as set
forth herein and approval by the Bankruptcy Court at a hearing under Sections
363 and 365 of the Bankruptcy Code (the "Sale Hearing"). The following overbid
provisions and related bid protections are designed to compensate Buyer for its
efforts and agreements to date and to facilitate a full and fair process
designed to maximize the value of the Acquired Assets for the benefit of
Sellers' stakeholders.
(a) Bid Deadline. All Bids must be submitted to Sellers c/o
Xxxxxxx X. Xxxxxx at Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois), 000 Xxxx
Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, with a copy to Xxxxxx Xxxxxxx
at Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 and Xxxxx X. Xxxxx, Chief Restructuring Officer, at Tokheim Corporation,
0000 Xxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxxxx 00000, no later than 11:00 a.m. (CST) on
the date which is eight (8) Business Days prior to the date scheduled by the
Bankruptcy Court for the Sale Hearing (the "Bid Deadline"). Sellers will
distribute by facsimile transmission, personal delivery or reliable overnight
courier service in accordance with Section 8.3 a copy of each Bid upon receipt
to (i) counsel to any official committee of unsecured creditors appointed in the
Bankruptcy Cases, (ii) the agent under that certain Post-Confirmation Credit
Agreement, dated as of October 20, 2000, of Parent (the "Agent"), (iii) counsel
to Sellers' proposed debtor-in-possession lenders and (iv) counsel to Buyer. For
purposes of this Agreement, "Bid" shall mean an indication of interest from a
Person who has executed a confidentiality agreement on terms substantially
similar to the Confidentiality Agreement and who Parent has determined is
financially able to consummate the purchase described in the marked copy of the
Definitive Sale Documentation (a "Qualified Bidder"), stating that (x) such
Qualified Bidder offers to purchase the Business, or a material portion thereof,
upon the terms and conditions set forth in a copy of this Agreement, together
with all Exhibits and Schedules hereto (the "Definitive Sale Documentation"),
marked to show those amendments and modifications to the Definitive Sale
Documentation, including, but not limited to, price and the time of closing,
that such Qualified Bidder proposes, (y) such Qualified Bidder is prepared to
enter into and consummate the transaction within not more than ten days after
approval by the Bankruptcy Court of the Sale Order, subject to receipt of any
governmental or regulatory approvals and (z) such Qualified Bidder's offer is
irrevocable until the closing of a purchase of the Acquired Assets to the same
extent as provided in this Agreement.
(b) Qualified Bid. Only Qualified Bids will qualify for
consideration at the Auction. For purposes of this Agreement, a "Qualified Bid"
is a Bid that:
24
(i) complies in all respects with Section 5.8(a);
(ii) if and only if, as of the Bid Deadline, the
conditions described in Section 6.1 have been satisfied and no action
described in Section 6.1(b) shall have been threatened, is a proposal
that Parent determines has a value, when taken together with the value
of any Acquired Assets that would be retained by Sellers or transferred
to another purchaser, greater than or equal to the sum of (A) the value,
as reasonably determined by the independent financial advisor of
Sellers, of Buyer's offer plus (B) the amount of the Break-Up Fee plus
(C) the amount of the Expense Reimbursement plus (D) in the case of the
initial Qualified Bid (other than Buyer's Qualified Bid represented by
this Agreement), 1.5% of the Cash Consideration plus (E) in the case of
any subsequent Qualified Bids, 0.5% of the Cash Consideration;
(iii) is substantially on the same or better terms and
conditions as set forth in a copy of Definitive Sale Documentation; and
(iv) is accompanied by evidence of committed financing
or other ability to perform satisfactory to Parent.
If Sellers do not receive any Qualified Bids, Sellers will report the same to
the Bankruptcy Court and will proceed with a sale and assignment of the Acquired
Assets to Buyer and the assumption by Buyer of the Assumed Liabilities. This
Agreement executed by Buyer shall constitute a Qualified Bid for all purposes.
(c) Auction, Bidding Increments and Bids Remaining Open.
(i) If Sellers receive a Qualified Bid (other than
Buyer's Qualified Bid represented by this Agreement), Sellers will
conduct an auction (the "Auction") at the offices of Skadden, Arps,
Slate, Xxxxxxx & Xxxx (Illinois) on a date that is no less than one (1)
Business Day, and no more than three (3) Business Days, prior to the
date scheduled by the Bankruptcy Court for the Sale Hearing, beginning
at 11:00 a.m. (CST) or such later time or other place as Sellers shall
notify all Qualified Bidders who have submitted Qualified Bids;
provided, however, that in no event shall the Sale Hearing occur prior
to the 60th day following the Execution Date. Sellers shall notify all
Qualified Bidders who have submitted Qualified Bids of the actual date
of the Auction at least five (5) Business Days prior to the date
scheduled by the Bankruptcy Court for the Sale Hearing. Only Buyer,
Sellers, any representative of any official committee appointed in the
Bankruptcy Cases, the Agent, any agent banks under any
debtor-in-possession facility and any Qualified Bidders who have timely
submitted Qualified Bids, in each case together with their counsel and
financial advisors, shall be entitled to attend the Auction, and only
Buyer and Qualified Bidders will be entitled to make any subsequent
Qualified Bids at the Auction. Bidding at the Auction will continue
until such time as the highest or otherwise best offer is determined.
Sellers may announce at the Auction additional or different procedural
rules that are reasonable under the circumstances (e.g., the amount of
time allotted to make subsequent overbids) for conducting the Auction so
long as such rules are not materially inconsistent with these Bidding
Procedures.
(ii) At least one Business Day prior to the Auction,
Sellers will give Buyer and all other Qualified Bidders a copy of the
highest or otherwise best Qualified Bid received.
25
(d) Break-Up Fee. In consideration of Buyer's entering into this
Agreement and in recognition of Buyer's work in (x) establishing a bid standard
or minimum for other bidders, (y) placing estate property in a sales
configuration mode attracting other bidders to the Auction and (z) for serving,
by its name and its expressed interest, as a catalyst for other bidders, and as
reimbursement of Buyer's expenses incurred in connection with this Agreement and
the Contemplated Transactions, Sellers shall pay to Buyer (A) a break-up fee in
the amount of 1.0% of the Cash Consideration allocable to any portion of the
Acquired Business, pursuant to Section 1.6, that Buyer does not purchase (the
"Break-Up Fee") and (B) an amount (in no event to exceed 2.5% of the Cash
Consideration allocable to any portion of the Acquired Business, pursuant to
Section 1.6, that Buyer does not purchase) equal to Buyer's actual expenses
incurred in connection with this Agreement and the Contemplated Transactions
(the "Expense Reimbursement"), if:
(i) Sellers accept a Bid, other than that of Buyer, as
the highest offer and consummate such transaction (an "Auction
Transaction") with respect to the Tokheim Assets or the Gasboy Assets,
Sellers shall pay Buyer the Break-Up Fee and the Expense Reimbursement
with respect to that portion of the Acquired Business subject to such
Bid. The Break-Up Fee and the Expense Reimbursement payable pursuant to
this Section 5.8(d)(i) shall be paid as an administrative priority of
Sellers (other than TG Canada) under Section 503(b)(1) of the Bankruptcy
Code upon the earlier to occur of the closing of such Auction
Transaction and the consummation of a plan of reorganization; or
(ii) (A) this Agreement is terminated pursuant to
Section 7.1(e) and (B) within 180 days of such termination of this
Agreement, Sellers enter into a Contract to sell or otherwise transfer
all or any substantial portion of the Tokheim Assets or the Gasboy
Assets to any Person other than Buyer and such sale is consummated,
Sellers shall pay Buyer the Break-Up Fee and the Expense Reimbursement
with respect to that portion of the Acquired Business subject to such
sale. The Break-Up Fee and the Expense Reimbursement payable pursuant to
this Section 5.8(d)(ii) shall be paid as an administrative priority of
Sellers (other than TG Canada) under Section 503(b)(1) of the Bankruptcy
Code upon the closing of such sale.
(iii) Notwithstanding anything in this Agreement to the
contrary, the Break-Up Fee and the Expense Reimbursement shall only be
payable in accordance with clauses (i) and (ii) above and in no event
shall Sellers be liable to pay such a Break-Up Fee or an Expense
Reimbursement with respect to any portion of the Acquired Business to
Buyer on more than one occasion.
(e) Auction Transactions. Sellers shall not be permitted to
engage in one or more Auction Transactions unless such Auction Transactions and
any other asset or stock sales by Sellers shall have an aggregate cash component
of at least an amount sufficient to satisfy the Break-Up Fee and the Expense
Reimbursement and aggregate cash deposits in an amount at least equal to 3.5% of
the aggregate cash consideration payable to Sellers in connection with such
Auction Transactions.
Section 5.9 Non-Competition. In furtherance of the sale of the
Acquired Business to Buyer hereunder by virtue of the Contemplated Transactions
and more effectively to protect the value and goodwill of the Acquired Business
so sold, Sellers covenant and agree that, except with respect to the continued
operation and sale of the assets of Sellers that are not Acquired Assets
(including the continued operation and sale of the Excluded Subsidiaries and the
continued operation and sale of services pursuant to the Transition Supply
Agreement), Sellers shall not, for a period of three (3) years after the Closing
Date, (a) engage in any business which is in direct competition with the
Acquired Business (as conducted
26
as of the date hereof) in the United States or Canada, (b) solicit, induce or
attempt to persuade any of the current customers of the Business in the United
States and Canada or any Transferred Employees or agents of the Acquired
Business to terminate such business, employment or agency relationship in order
to enter into any such relationship in the United States or Canada for, with or
on behalf of Sellers or any Affiliate or to otherwise engage in activities in
direct competition with the Business or (c) divulge or make use of any trade
secrets or other confidential information of the Acquired Business (other than
to disclose such secrets and information to Buyer and its Affiliates). In the
event that the provisions of this Section 5.9 should ever be deemed to exceed
the time or geographic limitations or any other limitations permitted by
Applicable Law in any jurisdiction, then such provisions shall be deemed
reformed in such jurisdiction to the maximum permitted by Applicable Law. In the
event any Seller violates any of its obligations under this Section 5.9, Buyer
may proceed against it in law or in equity for such damages or other relief as a
court may deem appropriate. Sellers acknowledge that a violation of this Section
5.9 may cause Buyer irreparable harm that may not be adequately compensated for
by money damages. Notwithstanding anything to the contrary, nothing in this
Agreement shall be deemed to limit the activities of the Excluded Subsidiaries
to the extent the Excluded Subsidiaries are not using the Acquired Assets or
subject to the Intangible Property License Agreements.
Section 5.10 Notice of Breach; Disclosure. The Sellers shall
promptly notify the Buyer, and Buyer shall promptly notify the Sellers, of (a)
any event, condition or circumstance of which any Seller or Buyer, as the case
may be, becomes aware after the date hereof and prior to the Closing Date that
would constitute a violation or breach of this Agreement (or a breach of any
representation or warranty contained herein) or, if the same were to continue to
exist as of the Closing Date, would constitute the non-satisfaction of any of
the conditions set forth in Article VI, as the case may be or (b) any event,
occurrence, transaction, or other item of which the Buyer or any Seller, as the
case may be, becomes aware which would have been required to have been disclosed
on any schedule or statement delivered hereunder had such event, occurrence,
transaction or item existed as of the date hereof.
Section 5.11 Payment Under Assumed Contracts and Determination of
Cure Costs. As promptly as practicable following the filing of the Petitions,
Buyer and Sellers shall use commercially reasonable efforts to cooperate and
determine an estimate of the amounts required to cure all defaults under each
Assumed Contract so as to permit the assumption and assignment of each such
Assumed Contract pursuant to Section 365 of the Bankruptcy Code (as ultimately
determined by the Bankruptcy Court, the "Cure Costs"). In connection with the
assignment and assumption of the Assumed Contracts, Sellers shall cure any past
defaults by payment of any Cure Costs, up to $500,000 in the aggregate (the
"Cure Cap"), in order to assume and assign to Buyer the Assumed Contracts. Buyer
shall pay any Cure Costs in excess of the Cure Cap, provided that the Cure Costs
paid by Buyer shall not reduce the Consideration. For the avoidance of doubt,
the provisions of this Section 5.11 shall not apply to any Assumed Contract to
which TG Canada is a party or by which its assets may be bound that is not
subject to assumption and assignment pursuant to Section 365 of the Bankruptcy
Code.
Section 5.12 Further Assurances. In addition to the provisions of
this Agreement, from time to time after the Closing Date, Sellers and Buyer will
use all commercially reasonable efforts to execute and deliver such other
instruments of conveyance, transfer, or assumption, as the case may be, and take
such other action as may be reasonably requested to implement more effectively
the Contemplated Transactions.
Section 5.13 Employee Matters. On the Closing Date, Buyer shall make
employment offers to certain employees of the Business (the "Business
Employees"). Any Business Employees who accept the Buyer's offer are hereinafter
referred to as "Transferred Employees." Buyer shall have no further obligations
with respect to Business Employees who do not accept Buyer's offer. Prior to the
Closing Date, Seller shall permit and allow reasonable access by Buyer to
discuss and make
27
offers of post-Closing employment with any of Sellers' employees.
Section 5.14 No-Shop. Subject to the exceptions stated in this
Section 5.14 and prior to the entry by the Bankruptcy Court of the Bidding
Procedures Order (after which time such final order shall govern any
solicitations by Sellers with respect to any Alternative Transaction), Sellers
shall not take, nor shall they permit any of their respective Affiliates (or
authorize or permit any of their representatives acting for or on behalf of any
Seller or any of its Affiliates) to take, directly or indirectly, any action to
solicit or negotiate any offer from any Person concerning an Alternative
Transaction; provided, however, that nothing herein shall prohibit furnishing
confidential information with respect to the Business or permitting access to
the assets and properties and books and records of any Seller). If, prior to the
entry by the Bankruptcy Court of the Bidding Procedures Order, Sellers or any of
their respective Affiliates (or any representative acting for or on their
behalf) receives from any Person any offer, inquiry or informational request
referred to above, Sellers shall promptly advise such Person, by written notice,
of the motion filed with the Bankruptcy Court seeking entry of the Bidding
Procedures Order and will promptly, orally and in writing, advise Buyer of such
offer, inquiry or request and deliver a copy of such notice to Buyer, except to
the extent so doing would violate an existing confidentiality agreement. For
purposes of this Section 5.14, an "Alternative Transaction" means any proposal
for a merger or other business combination involving Sellers with respect to the
Acquired Business, other than the transactions contemplated by this Agreement;
provided, however, that any proposal or offer to acquire in any manner, directly
or indirectly, substantially all of the business of Parent or an Equity Security
in, or a substantial portion of the assets of, any of the Excluded Subsidiaries,
shall not be deemed an Alternative Transaction.
Section 5.15 Monthly Financial Reports. Sellers shall deliver to
Buyer a copy of the monthly financial reporting packages (the "Monthly Financial
Reports") that are required or proposed to be required to be sent to the lenders
under any debtor-in-possession credit agreement entered into by Sellers in
connection with the filing of the Petitions for each full month following the
date of this Agreement (including the month in which this Agreement is signed)
until Closing, which copies shall be delivered to Buyer within the time period
required for delivery of the Monthly Financial Reports to such lenders.
Section 5.16 Change of Name. Sellers shall file amendments to the
certificates of incorporation or certificates of formation of each such Seller
changing its name to a name not using the names "Gasboy," "Tokheim," "Sunbelt,"
"Management Solutions" or "MSI" or any name that is similar thereto within 120
days after the Closing Date in the appropriate government office.
Section 5.17 Collection of Accounts Receivable. If, following the
Closing, (i) Sellers shall collect any Receivables belonging to Buyer, Sellers
shall hold the same in trust and shall promptly pay the same over to Buyer, or
(ii) Buyers shall collect any receivables belonging to Seller, Buyer shall hold
the same in trust and shall promptly pay the same over to Seller.
Section 5.18 Administrative Claims. All amounts to be paid to Buyer
pursuant to this Agreement shall constitute an allowed administrative expense
claim with priority over any and all administrative expenses of the kind
specified in Sections 503 and 507 of the Bankruptcy Code, and shall be, at
Buyer's option and as otherwise permitted by this Agreement, (i) immediately
payable if and when any such obligation of Sellers arises under this Agreement
or the Bidding Procedures Order, or (ii) credited against any amounts owed by
Buyer to Sellers pursuant to this Agreement.
Section 5.19 Releases. Parent shall use its commercially reasonable
efforts to obtain all releases from Parent's lenders that are necessary in order
for Sellers to consummate the Contemplated Transactions.
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Section 5.20 Capitalized Leases. With respect to all capitalized
leases relating to the Acquired Business, (a) Sellers shall use their
commercially reasonable efforts to pay in full all such capitalized leases prior
to the Closing and (b) in the event any such capitalized leases are not paid in
full prior to the Closing, Sellers and Buyer hereby agree that any amounts owing
under such capitalized leases as of the Closing shall, subject to the last
sentence of Sections 2.7(e) and 2.7(f), respectively, be deducted from the
Gasboy Current Assets or the Tokheim Current Assets, as appropriate, otherwise
shown on the Current Assets Statement.
Section 5.21 Title Insurance. At Buyer's expense, Sellers shall use
their commercially reasonable efforts to assist Buyer in obtaining all required
title insurance policies with respect to the Real Property designating Buyer as
the insured, with all premiums thereon paid by Buyer.
Section 5.22 Schedules.
(a) Buyer, on the one hand, and Parent, on behalf of Sellers, on
the other hand, shall have the right to make changes to the Schedules to this
Agreement to correct manifest errors that are discovered between the Execution
Date and the Auction.
(b) Notwithstanding anything to the contrary contained in this
Agreement, if at any time on or prior to December 4, 2002 or such other date as
Buyer and Parent may mutually agree, Buyer and Sellers shall not agree on the
Schedules to this Agreement, Buyer and Sellers shall each have the right to
terminate this Agreement and the Deposit shall be returned to Buyer.
Section 5.23 Removal of Property. Buyer shall remove all Acquired
Assets from any Facility (other than any Facility that Buyer continues to own
after Closing) within thirty (30) days following the termination of the
Transition Supply Agreement.
ARTICLE VI
CONDITIONS TO CLOSING
Section 6.1 Conditions to Obligations of Sellers and Buyer. The
respective obligations of each party to effect the Contemplated Transactions
shall be subject to the satisfaction (or waiver by the parties) at or prior to
the Closing Date of the following conditions:
(a) any waiting period applicable to the consummation of the
Contemplated Transactions under the HSR Act and any applicable foreign antitrust
or competition laws that could reasonably be expected to prevent the
consummation of the Contemplated Transactions shall have expired or been
terminated; provided, however, that if the consummation of the purchase of the
Tokheim Assets is prohibited but the consummation of the purchase of the Gasboy
Assets is not prohibited, this condition shall be deemed met with respect to the
Gasboy Assets.
(b) no statute, rule, regulation, executive order, decree,
decision, ruling or preliminary or permanent injunction shall have been enacted,
entered, promulgated, or enforced by any U.S. federal or state court or foreign
Governmental Authority that prohibits, restrains, enjoins, or restricts the
consummation of the Contemplated Transactions that has not been withdrawn or
terminated; provided, however, that if the consummation of the purchase of the
Tokheim Assets is prohibited but the consummation of the purchase of the Gasboy
Assets is not prohibited, this condition shall be deemed met with respect to the
Gasboy Assets.
Section 6.2 Conditions to Obligations of Sellers. The obligation of
Sellers to effect
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the Contemplated Transactions shall be subject to the satisfaction (or waiver by
Parent on behalf of all Sellers) at or prior to the Closing Date of the
following conditions:
(a) The representations and warranties of Buyer contained herein
(without giving effect to any Buyer Material Adverse Effect, materiality or
similar qualifier) shall have been true and correct on and as of the date of
this Agreement and as of the Closing as if made as of the Closing (except for
changes permitted or contemplated by this Agreement and except that the
representations and warranties that are made as of a specific date need be true
and correct only as of such date), except to the extent that such inaccuracies
in any such representation or warranty have not had, and would not reasonably be
expected to have a Buyer Material Adverse Effect. Sellers shall have received a
certificate from Buyer signed by an officer thereof with respect to the
foregoing.
(b) The covenants and agreements of Buyer to be performed on or
prior to the Closing shall have been duly performed in all material respects.
Sellers shall have received a certificate from Buyer signed by an officer
thereof with respect to the foregoing.
(c) Each of (i) the Bidding Procedures Order and (ii) the Sale
Order shall have been entered by the Bankruptcy Court in substantially the form
contemplated by this Agreement and shall not have been reversed, stayed,
modified or amended in any manner materially adverse to Sellers.
(d) Buyer shall have duly delivered such items as are set forth
in Section 2.3.
Section 6.3 Conditions to Obligations of Buyer. The obligation of
Buyer to effect the Contemplated Transactions shall be subject to the
satisfaction (or waiver by Buyer) at or prior to the Closing Date of the
following conditions:
(a) The representations and warranties of Sellers contained
herein (without giving effect to any Material Adverse Effect, materiality or
similar qualifier) shall have been true and correct on and as of the date of
this Agreement and as of the Closing as if made as of the Closing (except for
changes permitted or contemplated by this Agreement and except that the
representations and warranties that are made as of a specific date need be true
and correct only as of such date), except to the extent that such inaccuracies
in any such representation or warranty have not had, and would not reasonably be
expected to have a Material Adverse Effect. Buyer shall have received a
certificate from each Seller signed by an officer thereof with respect to the
foregoing.
(b) The covenants and agreements of Sellers to be complied with
or performed on or prior to the Closing shall have been duly complied with or
performed in all material respects. Buyer shall have received a certificate from
each Seller signed by an officer thereof with respect to the foregoing.
(c) Each of (i) the Bidding Procedures Order and (ii) the Sale
Order shall have been entered by the Bankruptcy Court in substantially the form
contemplated by this Agreement and shall not have been reversed, stayed,
modified or amended in any manner materially adverse to Buyer and shall have
become final and non-appealable. Copies of all orders of the Bankruptcy Court
pertaining to the Contemplated Transactions, including the Bidding Procedures
Order and the Sale Order shall have been received by Buyer.
(d) Buyer shall have all material Permits required by any
Governmental Authority to own and operate the Acquired Business and such Permits
shall be valid and enforceable.
(e) Sellers shall have duly delivered such items as are set forth
in Section 2.2.
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ARTICLE VII
TERMINATION
Section 7.1 Termination. This Agreement may be terminated at any
time prior to the Closing Date:
(a) by written agreement of Sellers and Buyer;
(b) by either Sellers or Buyer, by giving written notice of such
termination to the other parties, if the Closing shall not have occurred on or
prior to the 100th day after the date hereof (the "Termination Date") (unless
the failure to consummate the Closing by such date shall be due to the failure
of the party seeking to terminate this Agreement to have fulfilled any of its
obligations under this Agreement).
(c) by either Sellers or Buyer in the event that any Governmental
Authority shall have issued a final order, decree or ruling or taken any other
final action, or adopted any applicable state, federal or foreign law, in each
case permanently restraining, enjoining or otherwise prohibiting the
Contemplated Transactions;
(d) by Sellers, so long as any Seller is not then in breach of
its material obligations under this Agreement, upon a material breach of any
covenant or agreement on the part of Buyer set forth in this Agreement, or if
any representation or warranty of Buyer shall have been or become untrue, in
each case such that the conditions set forth in Sections 6.2(a) or 6.2(b) would
not be satisfied; provided, however, that if any such breach is curable prior to
the Termination Date by Buyer through the use of its commercially reasonable
efforts, for so long as Buyer, following written notice with respect to such
breach from Sellers, shall be using its commercially reasonable efforts to cure
such breach, Sellers may not terminate this Agreement pursuant to this Section
7.1(d);
(e) by Buyer, so long as Buyer is not then in breach of its
material obligations under this Agreement, upon a material breach of any
covenant or agreement on the part of Sellers set forth in this Agreement, or if
any representation or warranty of Sellers shall have been or become untrue, in
each case such that the conditions set forth in Sections 6.3(a) or 6.3(b) would
not be satisfied; provided, however, that if any such breach is curable prior to
the Termination Date by Sellers through the use of their commercially reasonable
efforts, for so long as Sellers, following written notice with respect to such
breach from Buyer, shall be using their commercially reasonable efforts to cure
such breach, Buyer may not terminate this Agreement pursuant to this Section
7.1(e);
(f) by Buyer, so long as Buyer is not then in breach of its
material obligations under this Agreement, if the Bidding Procedures Order in
substantially the form contemplated by this Agreement (unless Buyer shall have
agreed to modifications) shall not have been entered by the Bankruptcy Court
within 60 days after the filing of the Petitions; provided, however, that if the
Bankruptcy Court has not entered the Bidding Procedures Order within such time,
and Buyer does not exercise its right to terminate this Agreement pursuant to
this Section 7.1(f) within 100 days after the filing of the Petitions by
Sellers, then Buyer shall be deemed to have irrevocably waived (i) its right to
terminate this Agreement pursuant to this Section 7.1(f) and (ii) the condition
set forth in Section 6.3(c)(i) of this Agreement;
(g) by Sellers, if Sellers accept or are about to accept a
Qualified Bid at the Auction other than that of Buyer, provided that such
termination shall be of no effect if Sellers do not accept such Qualified Bid
immediately after termination hereunder;
31
(h) by Buyer, in the event Sellers accept an offer for the
purchase of all or substantially all of the Acquired Assets prior to the hearing
on the Bidding Procedures Order;
(i) by Buyer, if Sellers accept a Qualified Bid at the Auction,
other than that of Buyer; and
(j) automatically, but only with respect to the Tokheim Assets,
if the conditions set forth in Section 6.1 cannot be satisfied with respect to
the Tokheim Assets but can be satisfied with respect to the Gasboy Assets;
provided that this Agreement shall only terminate with respect to the Tokheim
Assets but shall remain effective with respect to the Gasboy Assets and, subject
to terms of this Agreement, Buyer shall purchase the Gasboy Assets (and assume
the related Assumed Liabilities) and Sellers and Buyer shall use their
reasonable best efforts to consummate such sale and purchase of the Gasboy
Assets in accordance with the terms of this Agreement with such changes as are
necessary to exclude the Tokheim Assets.
Section 7.2 Effect of Termination.
(a) In the event of the termination of this Agreement in
accordance with Section 7.1, this Agreement shall thereafter become void and
have no effect, and no party hereto shall have any liability to the other
parties hereto or their respective Affiliates, directors, officers, employees,
representatives or shareholders, except for the obligations of the parties
hereto contained in this Section 7.2, Sections 1.7, 1.8, 5.5, 5.8(d) (unless
termination is pursuant to Section 7.1(h)), 8.3, 8.4, 8.7, 8.10, 8.11, 8.15,
8.18 and the Confidentiality Agreement, and except that nothing herein will
relieve any party from liability for any breach of any representation, warranty,
covenant or agreement set forth in this Agreement prior to such termination (a
"Breach"); it being understood that the acceptance by Sellers of a Bid other
than Buyer's and seeking the approval of the Bankruptcy Court of a Bid other
than Buyer's in each case in compliance with Section 5.8 shall not constitute a
Breach for purposes of this Section 7.2. Notwithstanding anything to the
contrary contained in this Agreement, in the event Buyer is entitled to receive
the Break-Up Fee and the Expense Reimbursement upon termination of this
Agreement, the right of Buyer to receive such amounts shall constitute Buyer's
sole remedy for (and such amount shall constitute liquidated damages in respect
of) any Breach by any Seller of any of its representations, warranties,
covenants or agreements set forth in this Agreement. Notwithstanding anything to
the contrary contained in this Agreement, in the event Sellers are entitled to
receive the Deposit pursuant to Section 1.7 and 1.8, the right of Sellers to
receive such amount shall constitute Sellers' sole remedy for (and such amount
shall constitute liquidated damages in respect of) any Breach by Buyer of any of
its representations, warranties, covenants or agreements set forth in this
Agreement.
(b) The parties acknowledge and agree that any claim for a Breach
must be brought within 30 days after this Agreement is terminated.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Attorneys' Fees. In the event that any party hereto
brings an action or other proceeding to enforce or interpret the terms and
provisions of this Agreement, the prevailing party in that action or proceeding
shall be entitled to have and recover from the non-prevailing party all such
fees, costs and expenses (including, without limitation, all court costs and
reasonable attorneys' fees) as the prevailing party may suffer or incur in the
pursuit or defense of such action or proceeding.
32
Section 8.2 Reasonable Access to Records and Certain Personnel. So
long as the Bankruptcy Cases are pending and thereafter until Sellers have
resolved all outstanding claims brought under the Bankruptcy Cases, (a) Buyer
shall permit Sellers' counsel and other professionals employed in the Bankruptcy
Cases reasonable access to the financial and other books and records relating to
the Acquired Assets or the Business (whether in documentary or data form) for
the purpose of the continuing administration of the Bankruptcy Cases (including,
without limitation, the pursuit of any avoidance, preference or similar action),
which access shall include (i) the right of such professionals to copy, at
Sellers' expense, such documents and records as they may request in furtherance
of the purposes described above and (ii) Buyer's copying and delivering to
Sellers or their professionals such documents or records as they may request,
but only to the extent Sellers or their professionals furnish Buyer with
reasonably detailed written descriptions of the materials to be so copied and
Sellers reimburse Buyer for the reasonable costs and expenses thereof and (b)
Buyer shall provide Sellers and such professionals (at no cost to Sellers) with
reasonable access to the senior management of Buyer and its Affiliates
responsible for the Acquired Assets and the Business during regular business
hours to assist Sellers in the continuing administration of the Bankruptcy
Cases, provided that such access does not unreasonably interfere with Buyer's
business operations. Any such access described in the foregoing sentence shall
be afforded by Buyer upon receipt of reasonable advance notice and during
regular business hours.
Section 8.3 Notices. Unless otherwise provided herein, any notice,
tender, or delivery to be given hereunder by any party to the other may be
effected by personal delivery in writing, or by registered or certified mail,
postage prepaid, return receipt requested, and shall be deemed communicated as
of the date of mailing. Mailed notices shall be addressed as set forth below,
but each party may change his address by written notice in accordance with this
paragraph.
(a) If to any Seller prior to Closing:
c/o Tokheim Corporation
0000 Xxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx, President and Chief Executive
Officer
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
(b) If to any Seller following Closing, to it at such address(es)
as shall be specified in writing delivered to Buyer, in
each case with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
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(c) If to Buyer:
First Reserve Corporation
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx
with a copy to:
First Reserve Corporation
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
and to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxx
Section 8.4 Entire Agreement. This Agreement and the instruments
and documents to be executed pursuant hereto contain the entire agreement among
the parties relating to the sale of the Acquired Assets and the assumption of
the Assumed Liabilities, and supersedes all other prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter. Any oral representations or modifications concerning this
Agreement or any such other document shall be of no force and effect excepting a
subsequent modification in writing, signed by the party to be charged.
Section 8.5 Modification. This Agreement may be modified, amended
or supplemented only by a written instrument duly executed by all the parties
hereto.
Section 8.6 Closing Date. All actions to be taken on the Closing
pursuant to this Agreement shall be deemed to have occurred simultaneously, and
no act, document or transaction shall be deemed to have been taken, delivered or
effected until all such actions, documents and transactions have been taken,
delivered or effected.
Section 8.7 Severability. Should any term, provision or paragraph
of this Agreement be determined to be illegal or void or of no force and effect,
the balance of the Agreement shall survive except that, if the rights or
obligations of the Sellers, on the one hand, or the Buyer, on the other hand,
will be materially and adversely affected thereby, the Sellers or the Buyer,
respectively, may terminate this Agreement, and it shall be of no further force
and effect, unless the parties agree in writing to the contrary.
Section 8.8 Captions. All captions and headings contained in this
Agreement are for convenience of reference only and shall not be construed to
limit or extend the terms or conditions of this Agreement.
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Section 8.9 Waiver. No waiver of any of the provisions of this
Agreement shall be deemed, or shall constitute, a waiver of other provisions,
whether or not similar, nor shall any waiver constitute a continuing waiver. No
waiver shall be binding unless executed in writing by the party making the
waiver.
Section 8.10 Payment of Fees and Expenses. Except as provided
herein, the Buyer, on the one hand. and Parent on behalf of the Sellers, on the
other hand, shall be responsible for, and shall pay, all of its own fees and
expenses, including those of its counsel, incurred in the negotiation,
preparation and consummation of the Agreement and the Contemplated Transactions.
Section 8.11 Survival. Except for the covenants and agreements to be
performed after the Closing Date, none of the respective representations,
warranties, covenants and agreements of Sellers and Buyer herein, or in any
certificates or other documents delivered prior to or at the Closing, shall
survive the Closing. Notwithstanding anything to the contrary contained in this
Agreement, and notwithstanding the termination of this Agreement pursuant to
Article VII, Buyer's offer to purchase the Acquired Business shall remain
irrevocable until the earlier of (a) fifteen (15) days after the Auction and (b)
the closing of a purchase of all or substantially all of the Acquired Assets.
Section 8.12 Assignments. This Agreement shall not be assigned by
any party hereto without the prior written consent of the other parties hereto.
Notwithstanding the foregoing, Buyer may assign this Agreement, in whole or in
part, to Dresser, Inc. or a controlled Affiliate of either Dresser, Inc. or
Buyer.
Section 8.13 Binding Effect; No Third Party Beneficiary. This
Agreement shall bind and inure to the benefit of the respective heirs, personal
representatives, successors, and assigns of the parties hereto. This Agreement
is not intended to confer third-party beneficiary rights upon any other Person
(including any non-Seller parties to the Assumed Contracts), and no third party
shall be deemed to be a beneficiary hereof.
Section 8.14 Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
the rules of conflict of laws of the State of New York.
Section 8.15 Construction. In the interpretation and construction of
this Agreement, the parties acknowledge that the terms hereof reflect extensive
negotiations between the parties and that this Agreement shall not be deemed,
for the purpose of construction and interpretation, drafted by either party
hereto.
Section 8.16 Counterparts. This Agreement may be signed in
counterparts. The parties further agree that this Agreement may be executed by
the exchange of facsimile signature pages.
Section 8.17 Time is of the Essence. Time is of the essence in this
Agreement, and all of the terms, covenants and conditions hereof.
Section 8.18 Bankruptcy Court Jurisdiction. BUYER AND SELLERS AGREE
THAT THE BANKRUPTCY COURT SHALL HAVE EXCLUSIVE JURISDICTION OVER ALL DISPUTES
AND OTHER MATTERS RELATING TO (A) THE INTERPRETATION AND ENFORCEMENT OF THIS
AGREEMENT OR ANY ANCILLARY DOCUMENT EXECUTED PURSUANT HERETO AND/OR (B) THE
ACQUIRED ASSETS AND THE ASSUMED LIABILITIES, AND BUYER EXPRESSLY CONSENTS TO AND
AGREES NOT TO CONTEST SUCH EXCLUSIVE JURISDICTION.
35
ARTICLE IX
DEFINITIONS
"Acquired Assets" shall have the meaning set forth in Section 1.1.
"Acquired Business" means, collectively, the Acquired Assets and the
Assumed Liabilities.
"Adjusted Current Assets Statement" shall have the meaning set forth in
Section 2.7(d).
"Affiliate" shall mean with respect to any Person, any other person who,
directly or indirectly, controls, is controlled by, or is under common control
with that Person.
"Agent" shall have the meaning set forth in Section 5.8(a).
"Agreement" shall have the meaning set forth in the Preamble.
"Alternative Transaction" shall have the meaning set for in Section
5.14.
"Applicable Law" means any domestic or foreign federal, state or local
statute, law (including common law), code, ordinance, rule, administrative
interpretation, regulation, requirement, judgment, decree or order applicable to
the parties hereto.
"Assumed Contracts" shall have the meaning set forth in Section 1.1(e).
"Assumed Liabilities" shall have the meaning set forth in Section 1.3.
"Assumption Agreement" shall have the meaning set forth in Section
1.5(d).
"Auction" shall have the meaning set forth in Section 5.8(c)(i).
"Auction Transaction" shall have the meaning set forth in Section
5.8(d)(i).
"Bankruptcy Cases" shall have the meaning set forth in the Recitals.
"Bankruptcy Code" shall have the meaning set forth in the Recitals.
"Bankruptcy Court" shall have the meaning set forth in the Recitals.
"Baseline Gasboy Current Assets" shall have the meaning set forth in
Section 2.6(b).
"Baseline Tokheim Current Assets" shall have the meaning set forth in
Section 2.6(c).
"Benefit Plan" shall have the meaning set forth in Section 3.13(a).
"Bid" shall have the meaning set forth in Section 5.8(a).
"Bid Deadline" shall have the meaning set forth in Section 5.8(a).
"Bidding Procedures" shall have the meaning set forth in Section 5.8.
36
"Bidding Procedures Order" shall have the meaning set forth in Section
5.7(a).
"Xxxx of Sale" shall have the meaning set forth in Section 1.5(a).
"Breach" shall have the meaning set for in Section 7.2(a).
"Break-Up Fee" shall have the meaning set forth in Section 5.8(d).
"Business" shall have the meaning set forth in the Recitals.
"Business Day" shall have the meaning set forth in Section 2.1.
"Business Employees" shall have the meaning set forth in Section 5.13.
"Buyer" shall have the meaning set forth in the Preamble.
"Buyer Default Termination" shall have the meaning set forth in
Section 1.7.
"Buyer Material Adverse Effect" means any fact, condition, change or
event that would, individually or in the aggregate, materially and adversely
affect the results of operations, assets or condition (financial or otherwise)
of Buyer or the ability of Buyer to consummate the Contemplated Transactions.
"Cash Consideration" shall have the meaning set forth in Section 1.6.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. Section 9601 et seq.
"Closing" shall have the meaning set forth in Section 2.1.
"Closing Balance Sheet" shall have the meaning set forth in Section
2.7(a)
"Closing Date" shall have the meaning set forth in Section 2.1.
"Code" means the Internal Revenue Code of 1986, as amended.
"Confidentiality Agreement" means the letter agreement between Parent
and Buyer regarding confidential treatment of certain information concerning
Parent and its subsidiaries.
"Consideration" shall have the meaning set forth in Section 1.6.
"Contemplated Transactions" shall have the meaning set forth in the
Recitals.
"Contract" means any contract, agreement, indenture, note, bond, loan,
instrument, lease, commitment or other arrangement or agreement, whether oral or
written.
"Cure Cap" shall have the meaning set forth in Section 5.11.
"Cure Costs" shall have the meaning set forth in Section 5.11.
37
"Current Assets" shall have the meaning set forth in Section 2.7(g).
"Current Assets Statement" shall have the meaning set forth in
Section 2.7(a).
"Deeds" shall have the meaning set forth in Section 1.5(b).
"Definitive Sale Documentation" shall have the meaning set forth in
Section 5.8(a)
"Deposit" shall have the meaning set forth in Section 1.7.
"Encumbrance" means any lien (statutory or other), claim (including as
defined in the Bankruptcy Code), charge, security interest, mortgage, deed of
trust, pledge, hypothecation, assignment, license, conditional sale or other
title retention agreement, right of first refusal, option to purchase,
preference, priority or other security agreement or preferential arrangement of
any kind or nature, and any easement, charges, encroachment, covenant,
restriction, right of way, defect in title or other encumbrance of any kind.
"Environment" means soil, surface waters, groundwaters, land, stream
sediments, surface or subsurface strata, ambient air, and any environmental
medium.
"Environmental Laws" means any Applicable Laws relating to pollution,
natural resources, protection of the environment or public health and safety or
exposure of persons to Hazardous Substances, including, without limitation,
those relating to the use, treatment, storage, release, disposal or
transportation of Hazardous Substances or the handling and disposal of medical
and biological waste.
"Equity Securities" means (a) the shares of capital stock of a
corporation, (b) the general or limited partnership interests in any
partnership, (c) the membership or other ownership interest in any limited
liability company, (d) the equity securities of or other ownership interests or
rights in any other legal entity or (e) any option, warrant or other right to
convert into or otherwise receive any of the foregoing; in any such case,
whether owned or held beneficially or legally.
"ERISA" shall have the meaning set forth in Section 1.4(e).
"Escrow" shall have the meaning set forth in Section 1.7.
"Escrow Agreement" shall have the meaning set forth in Section 1.7.
"Escrow Holder" shall have the meaning set forth in Section 1.7.
"Excluded Assets" shall have the meaning set forth in Section 1.2.
"Excluded Liabilities" shall have the meaning set forth in Section 1.4.
"Excluded Subsidiaries" shall have the meaning set forth in the
Recitals.
"Execution Date" shall have the meaning set forth in Section 1.7.
"Executory Contracts" shall have the meaning set forth in
Section 1.1(e).
"Expense Reimbursement" shall have the meaning set forth in
Section 5.8(d).
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"Facility" means any real property or leasehold or other interests in
real property currently owned, occupied or operated by any Seller and any
buildings, plants or structures currently owned, occupied or operated by any
Seller, in each case only to the extent included within the Acquired Assets.
"GAAP" means generally accepted accounting principles in the United
States.
"Gasboy" shall have the meaning set forth in the Preamble.
"Gasboy Assets" shall have the meaning set forth in Section 1.1.
"Gasboy Current Assets" shall have the meaning set forth in
Section 2.6(a).
"Gasboy/MSI Intangible Property" shall have the meaning set forth in
Section 1.1(m).
"Gasboy/MSI Intangible Property Instruments" shall have the meaning set
forth in Section 1.5(e).
"Governmental Authority" means any domestic or foreign national,
regional, state, provincial or local government, governmental, administrative or
regulatory agency or commission or any court (including the Bankruptcy Court),
tribunal or arbitrator (public or private).
"Governmental Requirements" shall have the meaning set forth in
Section 3.4.
"Hazardous Substances" means (a) any hazardous or toxic waste, substance
or material defined in any Environmental Law, (b) asbestos-containing material,
(c) medical and biological waste, (d) polychlorinated biphenyls, (e) petroleum
products, including gasoline, fuel oil, crude oil and constituents of such
petroleum products and (f) any other chemicals, materials or substances,
exposure to which is prohibited, limited or regulated by any Environmental Laws.
"HSR Act" shall have the meaning set forth in Section 3.4.
"Intangible Property" means all intangible personal property owned or
held (including intangible personal property which is currently under
development) by any Seller and related to or used in connection with the
Business, but in all cases only to the extent of the Sellers' interests therein,
including (a) the registered and common law trademarks and trade names, service
marks and service names, and registrations and applications for registration
thereof, and foreign counterparts thereof, Internet domain names and associated
content, logos, designs, slogans, trade dress and general intangibles of like
nature, together with the goodwill associated therewith, (b) the patents, patent
applications and foreign counterparts thereof, (c) the copyrights, copyright
applications and copyright registrations and foreign counterparts thereof, and
(d) the inventions, customer lists, discoveries, trade secrets, improvements,
formulae, practices, processes, methods, technology, know-how and similar
proprietary rights and related licenses and other agreements. As used in this
Agreement, Intangible Property shall in all events exclude Sellers' corporate
books and records relating to their respective organization and existence.
"Intangible Property License Agreements" shall have the meaning set
forth in Section 1.5(c).
"Inventory" shall have the meaning set forth in Section 1.1(b).
"IP License-In Agreements" shall have the meaning set forth in
Section 3.9(a).
39
"IP License-Out Agreements" shall have the meaning set forth in
Section 3.9(a).
"Knowledge" means the actual knowledge of (i) Xxxx X. Xxxxxxxx, Xxxxx X.
Xxxxx, Xxxxxxx St. Xxxxx, Xxxxxx Xxxxx, Xxxx X. Xxxxxx, (ii) the head corporate
or divisional officers and most senior financial officers of MSI, Gasboy and the
service business, if any, and (iii) any replacements of any of the individuals
listed in (i) and (ii) up to and including the Closing Date.
"Liabilities" shall have the meaning set forth in Section 1.3(a).
"Licensed-In Intangible Property" shall have the meaning set forth in
Section 3.9(b).
"Material Adverse Effect" means any fact, condition, change or event
that would, individually or in the aggregate, materially and adversely affect
the results of operations, assets or condition (financial or otherwise) of the
Business (excluding the Excluded Assets and the Excluded Liabilities) or the
Acquired Assets, taken as a whole, except for (a) facts, conditions, changes or
events that customarily occur as a result of events leading up to and following
the filing of a case under the Bankruptcy Code, (b) changes in general economic
conditions or changes affecting the industry in which the Business operates
generally, or (c) any act of war or terrorism unless it disproportionately
affects the Acquired Business.
"Material Customers" shall have the meaning set forth in Section 3.19.
"Material Suppliers" shall have the meaning set forth in Section 3.19.
"Monthly Financial Reports" shall have the meaning set for in
Section 5.15.
"MSI" shall have the meaning set forth in the Recitals.
"Neutral Auditor" shall have the meaning set forth in Section 2.7(d).
"Other Contracts" shall have the meaning set forth in Section 1.1(e).
"Other Leases" shall have the meaning set forth in Section 1.1(e).
"Parent" shall have the meaning set forth in the Preamble.
"Permitted Encumbrances" means with respect to or upon any Acquired
Assets, any (a) easement, encroachment or similar reservation which does not
impair the current use, occupancy, or value, or the marketability of title, of
such Acquired Asset and which would not individually (or in the aggregate with
others) have a material adverse effect on the Business or the use or enjoyment
of such Acquired Asset, (b) liens securing the performance of bids, tenders,
leases, contracts (other than for the repayment of debt), statutory obligations,
surety, customs and appeal bonds and other obligations of like nature, incurred
as an incident to and in the ordinary course of the Business, (c) liens imposed
by law, such as carriers', warehouseman's, mechanics', materialmen's,
landlords', laborers' suppliers' and vendors' liens, incurred in good faith in
the ordinary course of the Business and securing obligations which are not yet
due or which are being contested in good faith by appropriate proceedings and
(d) extensions, renewals and replacements of liens referred to in (a) through
(c) of this sentence; provided that any such extension, renewal or replacement
lien shall be limited to the property or assets covered by the lien extended,
renewed or replaced and that the obligations secured by any such extension,
renewal or replacement lien shall be in an amount not greater than the amount of
the obligations secured by the
40
original lien extended, renewed or replaced, none of which, individually or in
the aggregate, have a material adverse effect upon the value of the property
subject thereto or the use to which such property is presently put.
"Permits" means all permits, licenses, franchises, certificates of
occupancy, variances, exemptions, orders and other authorizations, consents,
waivers, registrations and approvals, issued or issuable by any Governmental
Authority that relate to the Acquired Assets and are necessary or customary to
carry on the Business as presently operated; provided, however, that the term
"Permits" shall not include any permits, licenses, franchises, certificates of
occupancy, variances, exemptions, orders and other governmental authorizations,
consents, waivers, registrations and approvals under any foreign or domestic
anti-trust or competition laws.
"Person" means any natural person, firm, partnership, joint venture,
limited liability company, association, corporation, trust, business trust,
unincorporated organization, Governmental Authority or other entity.
"Personal Property" shall have the meaning set forth in Section 1.1(a).
"Petition Date" shall have the meaning set forth in the Recitals.
"Petitions" shall have the meaning set forth in the Recitals.
"Post Closing Adjustment" shall have the meaning set forth in
Section 2.7(g).
"Pre-Closing Balance Sheet" shall have the meaning set forth in
Section 2.6(a).
"Pre-Closing Current Assets Statement" shall have the meaning set forth
in Section 2.6(a).
"Pre-Closing Gasboy Current Assets" shall have the meaning set forth in
Section 2.6(b).
"Pre-Closing Tokheim Current Assets" shall have the meaning set forth in
Section 2.6(c).
"Pre-Closing Tax Period" shall have the meaning set forth in
Section 1.2(j).
"Qualified Bid" shall have the meaning set forth in Section 5.8(b).
"Qualified Bidder" shall have the meaning set forth in Section 5.8(a)
"Real Property" shall have the meaning set forth in Section 1.1(c).
"Real Property Leases" shall have the meaning set forth in
Section 1.1(e).
"Receivables" shall have the meaning set forth in Section 1.1(g).
"Release" shall have the meaning assigned to that term under CERCLA.
"Resolution Period" shall have the meaning set forth in Section 2.7(c).
"RPS" shall have the meaning set forth in the Preamble.
41
"Sale" shall have the meaning set forth in Section 5.8.
"Sale Hearing" shall have the meaning set forth in Section 5.8.
"Sale Order" shall have the meaning set forth in Section 3.3(a).
"Sellers" shall have the meaning set forth in the Preamble.
"Services" shall have the meaning set forth in the Preamble.
"Sunbelt" shall have the meaning set forth in the Preamble.
"Taxes" means all federal, state, local, and foreign taxes, and other
assessments of a similar nature (whether imposed directly or through
withholding), including any value added tax, interest, additions to tax, or
penalties applicable thereto.
"Tax Returns" means all federal, state, local, and foreign tax returns,
declarations, statements, reports, schedules, forms, and information returns and
any amended Tax Returns relating to Taxes.
"Termination Date" shall have the meaning set for in Section 7.1(b).
"TIC" shall have the meaning set forth in the Preamble.
"Tokheim Assets" shall have the meaning set forth in Section 1.1.
"Tokheim Current Assets" shall have the meaning set forth in
Section 2.6(a).
"Transferred Employees" shall have the meaning set forth in
Section 5.13.
"Transition Supply Agreement" shall have the meaning set forth in
Section 2.2(g).
"Unaudited Financials" shall have the meaning set forth in Section 3.7.
42
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
TOKHEIM CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: President & CEO
SUNBELT HOSE & PETROLEUM EQUIPMENT, INC.
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: President
TOKHEIM RPS, LLC
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Manager
TOKHEIM INVESTMENT CORP.
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: President
GASBOY INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Secretary & Treasurer
TOKHEIM SERVICES, LLC
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Manager
TOKHEIM AND GASBOY OF CANADA LTD.
By: /s/ Xxxxx Xxxxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
FIRST RESERVE FUND IX, L.P.
By: First Reserve GPIX, L.P.,
its General Partner
By: First Reserve GPIX, Inc.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
