Exhibit 10.1
PURCHASE AND SALE AGREEMENT
FOR CERTAIN CLAIMS IN THE CHAPTER 11 CASES
1. Sale of Claim and other Transferred Rights. Aehr Test Systems
("Seller"), its successors and assigns, in consideration of the amount (the
"Purchase Price") set forth in that certain Purchase Price Letter, of even
date herewith and incorporated herein by reference, does hereby sell, grant,
convey and transfer to Fulcrum Credit Partners LLC ("Buyer") all of Seller's
right, title and interest in and to the Transferred Rights, each as more
specifically set forth below. The Transferred Rights transferred to Buyer
hereunder include, without limitation or offset, (a) all of the Claims (as
used in this Purchase and Sale Agreement for Certain Claims in the Chapter 11
Cases (this "Agreement"), the term "Claims" includes all "claims" as such
term is defined in Section 101(5) of the Bankruptcy Code, 11 U.S.C. 101 et
seq., herein referred to as the "Code") of Seller against Spansion LLC (the
"Debtor") arising out of goods and services delivered to the Debtor, in the
current aggregate outstanding principal amount of not less than
$11,363,980.02 (the "Purchase Amount"), as described on Schedule F of the
Debtor's currently revised Schedules of Assets and Liabilities (the
"Schedules") and included in a Proof of Claim filed by Seller in proceedings
for reorganization (the "Proceedings") in the United States Bankruptcy Court
for the District of Delaware (the "Court"), jointly administered under In re
Spansion Inc., et al., Chapter 11 Case No. 09-10690 (KJC), assigned Claim No.
182 (the "Proof of Claim"), except the Retained Rights, as defined below; (b)
all of Seller's right, title and interest in and to the Claims, including all
agreements, instruments, invoices, purchase orders, proofs of delivery and
other documents evidencing, or relating or referred to in, the Claims; (c)
all of Seller's right to receive principal, interest, fees, expenses,
damages, penalties and other amounts in respect of, or in connection with,
any of the foregoing; (d) all cure amounts ("Cure Amount") owing to Seller
pursuant to Section 365(b) of the Code (in the event a Cure Amount is owing
to Seller, Seller shall direct the Debtors to pay such Cure Amount directly
to Buyer), (e) all other claims, causes of action against the Debtor, its
affiliates, any guarantor or other third party relating to or arising from
the Claims and all related documents, together with voting and other rights,
property and benefits, but explicitly excluded any disabilities of the
Claims, which may be paid, refunded or reclaimed with respect to the Claims;
and (f) all cash, securities, instruments and/or other property
distributable, receivable or payable, from and after March 1, 2009 (the
"Petition Date"), on account of, or exchanged in return for, any of the
foregoing including, without limitation, all proceeds of the foregoing (such
property referred to in this clause (f) is hereafter referred to as
"Distributions") ((a)-(f) are together hereinafter referred to as the
"Transferred Rights"). The Transferred Rights shall not include those
portions of the Proof of Claim arising from (a) cancellation charges for
goods and services ordered by the Debtor which were not delivered to the
Debtor due to the Debtor's failure to pay per terms, in the amount of
$6,217,834, as set forth as "Spansion Cancellations (Exhibit B)" in the Proof
of Claim; and (b) the balance owing by Debtor to Seller under invoices
120975, 121022, and 120990, in the amount of $1,225,331, as set forth in the
Proof of Claim (together, the "Retained Rights"). If the Proof of Claim
amount differs from the Purchase Amount set forth above, Buyer shall
nevertheless be deemed the owner of that Proof of Claim to the extent of the
Transferred Rights, subject to the terms of this Agreement, and shall be
entitled to identify itself as owner of such Proof of Claim to the extent of
the Transferred Rights on the records of the Court. For the avoidance of
doubt, the Claims shall include any and all general unsecured, reclamation,
priority, or secured claims of Seller in the Proceedings, or any related
case, other than those claims arising from the
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Retained Rights. This Agreement shall be deemed an absolute and
unconditional sale of the Transferred Rights for the purpose of collection
and satisfaction, and shall not be deemed to create a security interest.
Seller and Buyer are also hereinafter referred to individually as a "Party"
and collectively as the "Parties."
2. Representations and Warranties.
2.1. Seller's Representations. Seller represents and warrants
that (a) the Operative Documents (as defined below) have been duly
authorized, executed and delivered by Seller and Seller has the requisite
power and authority to execute, deliver and perform them; (b) the execution,
delivery or performance of the Operative Documents will not violate or
contravene any law, rule, regulation, order or agreement affecting Seller or
the Transferred Rights; (c) no consent, approval, filing or corporate,
partnership or other action is required as a condition to, or otherwise in
connection with, the execution, delivery and performance of the Operative
Documents by Seller or, if such consent, approval, filing or corporate,
partnership or other action is required, such requirement has been satisfied;
(d) Seller (i) is a sophisticated entity with respect to the sale of the
Transferred Rights, (ii) is an "accredited investor", as such term is defined
in Rule 501 of the Securities Act of 1933, 15 U.S.C. Section 77a et seq., as
amended, and the rules and regulations promulgated thereunder, (iii) has
adequate information concerning the business and financial condition of the
Debtor and the status of the Proceedings to make an informed decision
regarding the sale of the Transferred Rights, (iv) has agreed to the Purchase
Price based on its own independent investigation and credit determination
without reliance upon Buyer except as expressly set forth herein, and based
on such information as it has deemed appropriate, consulted with such
advisors as it believes appropriate and made its own analysis and decision to
enter into this Agreement; and (v) acknowledges that the consideration paid
under this Agreement for the purchase of the Transferred Rights may differ
both in kind and amount from any Distributions, and that Buyer has not given
Seller any investment advice, credit information, or opinion on whether the
sale of the Transferred Rights is prudent or advisable; (e) (i) the Claims
arise from Seller's pre-petition liquidated, non-contingent, and undisputed
claims against the Debtor as described in the Schedules and in the Proof of
Claim, and are fully enforceable under the Code and other applicable law; and
(ii) the Proof of Claim was duly and timely filed in the Proceedings, and
accurately describes and accounts for the Claims and the Purchase Amount; (f)
the amount of the Claims is not less than the Purchase Amount; (g) to the
best of Seller's knowledge, the Proof of Claim has not been revoked,
withdrawn, amended or modified in whole or in part and no rights thereunder
have been waived and statements promulgated in such Proof of Claim are true
and correct; (h) to the best of Seller's knowledge, no objection to the
Claims or any other part of the Transferred Rights exists, or may otherwise
be asserted by the Debtor or any other party; (i) the Transferred Rights are
not subject to an event of Impairment (as defined below); (j) the Claims are
not subject to any factoring agreement; (k) there are no offsets or defenses
that have been asserted by or on behalf of the Debtor or any other party to
reduce the amount of the Claims or to impair the value thereof; (l) there are
no preference or avoidance actions, including pursuant to Sections 547, 548,
550 or 502(d) of the Code, pending or threatened against Seller or the
Transferred Rights; (m) the Claims cannot be asserted, and will not be
allowed, in the Proceedings against any other parent, subsidiary or affiliate
of the Debtor; (n) Seller has not engaged in any acts, conduct or omissions
or had any relationship with the Debtor that might result in Buyer receiving
in respect of the Transferred Rights proportionately less payments or
distributions or less favorable treatment (including
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timing of payments or distributions) than other holders of similarly situated
claims against the Debtor in the Proceedings; (o) no payment or other
distribution has been received by Seller, or by any third party on behalf of
Seller, in full or partial satisfaction of, or in connection with the
Transferred Rights; (p) Seller has not previously assigned, sold or pledged
the Transferred Rights to any third party, in whole or in part; (q) Seller is
the sole owner and has good legal and beneficial title to the Transferred
Rights free of any and all liens, claims, security interests, participations
or encumbrances of any kind or nature whatsoever (the "Encumbrances"), and
upon consummation of the transactions contemplated herein, Buyer will own and
have good legal and beneficial title to the Claims, free and clear of all
Encumbrances; (r) no creditors of Seller may assert an interest of any kind
to the Claims nor any other Transferred Rights, nor may any such creditors
file proofs of claim asserting such interest; (s) Seller is not and has never
been an "insider" of the Debtor within the meaning of Section 101(31) of the
Code, and is not a member of any official committee in the Proceedings;
(t) Seller is not and has never been "insolvent" within the meaning of
Section 1-201(23) of the New York Uniform Commercial Code or within the
meaning of Section 101(32) of the Code; (u) other than the property described
in Exhibit "D" hereto (the "Debtor Property"), Seller does not hold, and did
not hold, as of the filing of the Proceedings, any property of or owe any
funds or property to the Debtor; (v) Seller has engaged competent outside
legal advisors to represent its interest and rights with regard to the
transactions contemplated herein; (w) no proceedings are pending or
threatened against Seller before any relevant governmental authority that
will materially and adversely affect the Transferred Rights or any action
taken by Seller hereunder; (x) Seller has provided Buyer with all material
documents and information in its possession, custody or control relating to
the validity, extent and/or priority of the Claims; and (y) no broker,
finder, or other person acting under Seller's authority is entitled to any
broker's commission or other fee in connection with the transactions
contemplated by this Agreement for which Buyer could be responsible. Seller
agrees to indemnify Buyer from all losses, damages and liabilities, including
reasonable attorneys fees and expenses, that result from (I) Seller's breach
of any representation, warranty, covenant or agreement set forth herein; or
(II) any obligation of Seller, Buyer or any entity to disgorge, in whole or
in part, or otherwise reimburse (by setoff or otherwise) the Debtor or any
other entity for any payments, property, setoffs or recoupments received,
applied or effected by or for the account of Seller under or in connection
with the Claims or otherwise from, against or on account of the Debtor.
2.2 Buyer's Representations. Buyer represents and warrants
that, as of the Closing Date (as defined below), (a) the Operative Documents
(as defined below) have been duly authorized, executed and delivered by Buyer
and Buyer has the requisite power and authority to execute, deliver and
perform them; (b) the execution, delivery and performance of the Operative
Documents will not violate or contravene any law, rule, regulation, order or
agreement affecting Buyer or the Transferred Rights; (c) no consent,
approval, filing or corporate, partnership or other action is required as a
condition to, or otherwise in connection with, the execution, delivery and
performance of the Operative Documents by Buyer or, if such consent,
approval, filing or corporate, partnership or other action is required, such
requirement has been satisfied; (d) Buyer (i) is a sophisticated entity with
respect to the sale of the Transferred Rights, (ii) has adequate information
concerning the business and financial condition of the Debtor or any obligor
and the status of the Proceedings to make an informed decision regarding the
aforementioned sale, (iii) has agreed to the Purchase Price based on its own
independent investigation and credit determination without reliance upon
Seller (except with
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respect to the delivery of documents and information in Seller's possession,
custody or control evidencing its representations contained herein regarding
the validity, extent, and priority of the Claims), except as expressly set
forth herein, and based on such information as it has deemed appropriate,
consulted with such advisors as it believes appropriate and made its own
analysis and decision to enter into this Agreement; and (iv) acknowledges
that the consideration paid under this Agreement for the purchase of the
Transferred Rights may differ both in kind and amount from any Distributions,
and that Seller has not given it any investment advice, credit information,
or opinion on whether the sale of the Transferred Rights is prudent or
advisable.
2.3 Excluded Information. Each Party is aware that the
consideration conveyed hereby may differ from the amount ultimately
distributed in the Proceedings with respect to the Transferred Rights and
that such amount may not be absolutely determined until entry of a final
order confirming a plan of liquidation/reorganization. Each Party
acknowledges that, except as set forth in this Agreement, neither Party nor
any agent or representative of that Party has made any representation
whatsoever to the other Party regarding the status of the Proceedings, the
condition of the Debtor (financial or otherwise), the condition of the
Claims, or any other matter relating to the Proceedings, the Claims or the
Debtor. Each Party acknowledges that (a) the other Party currently may have,
and later may come into the possession of, information on the Debtor, the
Claims, or the status of the Proceedings that is not known to it and that may
be material to a decision to buy or sell the Claims (the "Excluded
Information"); (b) it has not requested the Excluded Information, and has
agreed to proceed with the purchase and sale of the Claims; and (c) the other
Party shall have no liability to it, and it specifically waives and releases
any Claims or causes of action that it might have against the other Party
whether under applicable securities laws or otherwise, with respect to the
nondisclosure of the Excluded Information; provided, however, that Excluded
Information shall not and does not affect the truth or accuracy of each
Party's representations or warranties in this Agreement. The Parties
represent to each other that they each have adequate information concerning
the business and financial condition of the Debtor and the status of the
Proceedings to make an informed decision regarding the sale of the
Transferred Rights and that they each have independently and without reliance
on the other Party, and based on such information as they have deemed
appropriate (including information available from the files of the Court in
the Proceedings), made their own analysis and decision to enter into this
Agreement.
3. Impairment and Disallowance. If (a) through no action or failure
to act on the part of Buyer, all or any portion of the Claims becomes subject
to any counterclaim, defense, claim, right of setoff, withholding (tax or
otherwise), reduction, recoupment, avoidance, disallowance or subordination
or is otherwise impaired in any way; or (b) all or any portion of the Claims
becomes affected by a preference or avoidance action, including pursuant to
Section 502(d) of the Code (each, an "Impairment"), on demand (the "Demand")
of Buyer, Seller agrees to, at Seller's option, either (I) immediately repay
such portion of the consideration paid by Buyer hereunder (including, for the
avoidance of doubt, the Purchase Price and any Excess Payment (as defined
below)) as shall be calculated by multiplying such consideration by a
fraction, the numerator of which shall be the amount of the Claims which was
so affected by the Impairment and the denominator of which shall be the
Purchase Amount (as may be modified from time to time by Section 4.1 hereof),
together with interest on such amount at a rate of ten percent (10%) per
annum, from the date of this Agreement to the date of such repayment (the
"Repurchase Period") by Seller to Buyer (collectively, the "Repurchase
Price"), or (II) at
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Seller's sole expense, to investigate and/or defend any such Impairment,
including, but not limited to, communicating with opposing counsel and
preparing, filing and arguing an appropriate response to any objection
raised. Notwithstanding the foregoing, Seller shall, on or before the date
which is ninety (90) days after the date of the Demand from Buyer (or such
later date as shall be agreed to in writing by Buyer), promptly repurchase at
the Repurchase Price any portion of the Claims which remains subject to such
objection(s) or otherwise has become subject to an Impairment. Buyer's
Demand hereunder shall not be deemed an election of remedies or any
limitation on other rights that Buyer may have hereunder or under applicable
law.
4. Additional Agreements.
4.1 Excess Claims. If the Claims are allowed by a final, non-
appealable order of the Court or scheduled by the Debtor after the Trade Date
(as defined below) in an amount in excess of the amount purchased herein,
Buyer shall purchase such excess amount of the Claims together with the
related Transferred Rights (the "Excess Claim") from Seller at the same
Purchase Rate specified in the Purchase Price Letter (each an "Excess
Payment"). Upon remittance of an Excess Payment, the definition of "Claims"
and "Purchase Amount" shall be amended to include such Excess Claims, and all
terms and conditions herein, including the representations and warranties
made by the Parties hereto, shall be restated and remade and apply as to the
Claims and the Excess Claim as of the date such payment is made.
Notwithstanding such provision, Buyer acknowledges that it is purchasing only
the Transferred Rights and not the Retained Rights, and in no event shall an
increase in the allowed amount of the Proof of Claim attributable to the
Retained Rights qualify as an Excess Claim subject to this provision.
4.2 Proxy and Attorney-In-Fact. Seller hereby irrevocably
appoints Buyer as its true and lawful attorney-in-fact and authorizes Buyer
to act in Seller's name, place and stead, to demand, xxx for, compromise and
recover all such amounts as now are, or may hereafter become, due and payable
for or on account of the Transferred Rights. Seller grants unto Buyer full
authority to do all things Buyer deems necessary or desirable to enforce the
Transferred Rights pursuant to this Agreement, including, for the avoidance
of doubt, the right to amend, modify, compromise, settle or abandon the
Claims and the Proof of Claim(s) associated therewith, provided that any such
action by Buyer shall not lead to any liability for Seller. Provided
further, however, that Buyer shall not have authority to agree to any release
of liability of Debtor to Seller, other than with respect to the Transferred
Rights, without Seller's consent.. Seller agrees that the powers granted by
this Section 4.2 are discretionary in nature and that Buyer may exercise or
decline to exercise such powers at Buyer's sole option. Buyer shall have no
obligation to take any action to assert, prove or defend the Claims' validity
or amount in the Proceedings.
4.3 Further Actions; Cooperation. Seller agrees to take
certain actions and cooperate in good faith with Buyer as follows:
(a) At any time and from time to time on and after the Closing
Date, at the request of Buyer, and without further consideration, Seller will
execute, acknowledge and deliver all such other instruments of sale,
transfer, conveyance, confirmation, transfer powers, corporate
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resolutions and consents, and take such other action as Buyer may reasonably
deem necessary or desirable in order to effect the sale and transfer of the
Transferred Rights and all interests therein to Buyer, free and clear of all
liens, claims and encumbrances (including, without limitation, by obtaining,
at Seller's cost, releases of any liens or security interests asserted in the
Claims by any third party or parties), to cooperate with and assist Buyer in
enforcing the Transferred Rights (including, without limitation, the
provision of all such affidavits, testimony, instruments, invoices, liens,
pleadings, transcripts, communications, agreements and other documents that
evidence, or otherwise support the validity and enforceability of the
Transferred Rights and the filing of one or more amendments to the Proofs of
Claim) and otherwise to effectuate the purpose and intent of this Agreement.
(b) Seller agrees to forward to Buyer all documents, notices
and communications, of any nature, received from the Debtor, the Court or any
third party with respect to the Transferred Rights sold herein and to vote
the Claims, and to take such other action with respect to the Transferred
Rights in the Proceedings, as Buyer may from time to time request.
4.4 Distributions. Seller agrees that any distribution
received by Seller from and after the Trade Date on account of the
Transferred Rights, whether in the form of cash, securities, instruments or
any other property, shall constitute property of Buyer to which Buyer has an
absolute right. Seller shall hold such property on behalf of and in trust for
Buyer and will at its own expense, deliver to Buyer any such property in the
same form received (free of any withholding, setoff, claim, or deduction of
any kind), together with any endorsements or documents necessary to transfer
such property to Buyer within two (2) business days of receipt in the case of
cash (the "Cash Distribution") and five (5) business days in the case of
securities, notes or other instruments, which are in good deliverable form.
In the event Seller fails to deliver the Cash Distribution to Buyer within
two (2) business days of Seller's receipt, Seller shall be obligated to pay
Buyer interest on the Cash Distribution at a rate equal to the Prime Rate
(calculated as an average for the period of default) plus eight percent (8%)
per annum (the "Default Rate"), from the date of Seller's receipt to the date
of Buyer's receipt thereof. Buyer in turn agrees that any distribution
received by Buyer from and after the Trade Date on account of the Retained
Rights, whether in the form of cash, securities, instruments or any other
property, shall constitute property of Seller to which Seller has an absolute
right. Buyer shall hold such property on behalf of and in trust for Seller
and will at its own expense, deliver to Seller any such property in the same
form received (free of any withholding, setoff, claim, or deduction of any
kind), together with any endorsements or documents necessary to transfer such
property to Seller within two (2) business days of receipt in the case of
cash (the "Cash Distribution") and five (5) business days in the case of
securities, notes or other instruments, which are in good deliverable form.
In the event Buyer fails to deliver the Cash Distribution to Seller within
two (2) business days of Buyer's receipt, Buyer shall be obligated to pay
Seller interest on the Cash Distribution at a rate equal to the Default Rate
from the date of Buyer's receipt to the date of Seller's receipt thereof.
4.5 Claim Resolution. Seller covenants not to compromise or
settle the Claims or the Transferred Rights, or change the Purchase Amount,
without the prior written consent of Buyer. In performing any of its
obligations under this Agreement, Seller hereby covenants to act reasonably
at all times to maximize the amount of the Claims and to minimize
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the amount of time in which all components of the Claims and the Transferred
Rights are quantified and paid.
5. Intentionally Omitted.
6. Survival; Subsequent Transfer. The terms of this Agreement shall
be binding upon, and shall inure to the benefit of and be enforceable by
Buyer and its respective successors and assigns. Seller hereby acknowledges
that Buyer may re-sell, assign, participate or otherwise transfer to a third
person or entity (individually and collectively, "Transferee") the Claims in
whole or in part, together with all right, title and interest of Buyer in and
to this Agreement without the prior consent of or notice to Seller. Seller
further acknowledges and agrees that the sale, assignment, participation or
any other transfer to the Transferee of Buyer's interest in the Claims, in
whole or in part, will cause Buyer to forward and convey all papers,
documents, agreements, instruments, invoices, purchase orders, proofs of
delivery and other documents evidencing ("Upstream Due Diligence"), or
relating or referring to, the Claims, the Transferred Rights and the
transactions contemplated hereby. All representations, warranties, covenants
and agreements contained herein shall survive the execution and delivery of
this Agreement and any such re-sale, assignment, participation or other
transfer thereof, and shall inure to the benefit of Buyer and its respective
successors and assigns.
7. CONFIDENTIALITY. THE PARTIES HEREBY COVENANT THAT THEY WILL
MAINTAIN CONFIDENTIALITY OF THE TERMS OF THE PURCHASE PRICE LETTER,
INCLUDING, BUT NOT LIMITED TO (A) THE PURCHASE PRICE, AND (B) THE PURCHASE
RATE. NOTWITHSTANDING SUCH AGREEMENT, THE PARTIES ACKNOWLEDGE THAT SELLER
MAY BE REQUIRED TO DISCLOSE THE AGGREGATE AMOUNT OF THE PURCHASE PRICE IN ITS
PUBLIC FILINGS WITH THE SECURITIES AND EXCHANGE COMMISSION AND MAY BE
REQUIRED TO PROVIDE SUCH INFORMATION IN RESPONSE TO QUESTIONS FROM INVESTORS
AND ANALYSTS. UNLESS REQUIRED BY LAW, SECURITIES AND EXCHANGE COMMISSION
REGULATIONS OR A COURT OF COMPETENT JURISDICTION, SELLER SHALL NOT DISCLOSE
THE PURCHASE PRICE AND/OR THE PURCHASE RATES PAID FOR THE TRANSFERRED RIGHTS,
AND SELLER SHALL PROVIDE BUYER WITH NOTICE PRIOR TO MAKING ANY DISCLOSURE
UNDER THIS SECTION, INCLUDING THE CONTENT OF THE PROPOSED DISCLOSURE, THE
REASONS THAT SUCH DISCLOSURE IS REQUIRED BY LAW, SECURITIES AND EXCHANGE
COMMISSION REGULATIONS OR A COURT OF COMPETENT JURISDICTION, AND THE TIME AND
PLACE THAT DISCLOSURE WILL BE MADE.
8. Default. If either Party fails to make a payment or distribution
to the other Party within the time period specified in this Agreement, the
Party failing to make full payment of any amount when due shall, upon demand
of the other Party, pay such due amount together with interest for each day
from (and including) the date hereof, to (but excluding) the date when
actually paid, at a rate equal to the Default Rate.
9. Dispute Resolution. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without
giving effect to the choice of law principles thereof. Each Party hereto
irrevocably and unconditionally consents to the jurisdiction
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of the courts located in the State of New York for any action to enforce,
interpret or construe any provision of this Agreement, and also hereby
irrevocably waives any defense of improper venue or forum non conveniens to
any such action brought in those courts and waives any right to demand trial
by jury.
10. Purchase Price and Settlement. Payment by Buyer of the Purchase
Price attributable to the sale of the Claims shall be made in accordance with
the Purchase Price Letter on the same day (the "Funding Date") as the mutual
execution (the "Closing Date") by both Seller and Buyer of this Agreement,
the Purchase Price Letter and the Evidence of Transfer (as defined below)
(together the "Operative Documents"), unless (i) such execution occurs after
11:00 a.m. Pacific Time, in which case the Funding Date shall be the next
business day after the Closing Date, or (ii) an extension of the Funding Date
is agreed to in writing by Seller. The Purchase Price shall be paid by wire
transfer of immediately available funds and constitutes an amount equal to
the product of (x) the Purchase Rate (as set forth in the Purchase Price
Letter), and (y) the Purchase Amount. Notwithstanding such calculation, the
Parties acknowledge that Seller's possession of the Debtor Property may
result in an Impairment of the Transferred Rights. Accordingly, $400,000.00
of the Purchase Amount (the "Buyer Holdback") shall be held back by the Buyer
on account of any potential Impairment of the Transferred Rights resulting
from Seller's possession of the Debtor Property as of the Trade Date (a
"Holdback Impairment"). In the event a Holdback Impairment occurs prior to
the effective date of any plan of reorganization for the Debtor in the
Proceedings, Buyer or its successors or assigns shall be entitled to deduct
from the Buyer Holdback the amount of such Holdback Impairment, and shall
provide notice to Seller of such deduction. Within ten (10) business days
after the effective date of any plan of reorganization for the Debtor in the
Proceedings, Buyer shall pay to Seller any portion of the Buyer Holdback in
respect of any Claims not subject to an Impairment (as such term is defined
herein) as of the effective date of any plan of reorganization for Debtor in
the Proceedings.
11. Miscellaneous.
11.1 Evidence of Transfer. Seller hereby acknowledges and
consents to all terms set forth in this Agreement and hereby waives its right
to raise any objection thereto pursuant to Rule 3001(e) of the Federal Rules
of Bankruptcy Procedure ("FRBP"), and consents to the substitution of Buyer
for Seller in the Proceedings with respect to the Transferred Rights, but not
the Retained Rights. Seller agrees that Buyer may file a notice of transfer
with the Court pursuant to Section 3001(e) of the FRBP, including the
Evidence of Transfer of Claim ("Evidence of Transfer"), substantially in the
form attached hereto as Exhibit A and that Seller shall cooperate with Buyer
in connection therewith. Seller grants Buyer the right to make any
corrections to the Evidence of Transfer necessary or appropriate to effect
the sale of the Claims and the Transferred Rights. Seller hereby waives any
notice or hearing requirements imposed by Rule 3001 of the FRBP, and
stipulates that an order may be entered recognizing this Agreement and the
Evidence of Transfer as an unconditional transfer and sale, and the Buyer
herein as the valid owner of the Transferred Rights. Pending an order
recognizing the transfer and sale of the Transferred Rights to Buyer, if any,
this Agreement shall be deemed to grant Buyer an undivided 100% participation
interest in the Transferred Rights and the other rights set forth herein.
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11.2 Notices and Deliveries. All demands, notices, consents,
and communications hereunder shall be in writing and shall be deemed to have
been duly given when hand-delivered or duly deposited in the mails, by
certified or registered mail, via electronic mail, or via overnight courier,
receipt verified, to the address set forth herein, or such other address as
may be furnished hereafter by notice in writing.
If to the Buyer: Fulcrum Credit Partners LLC
Attn: General Counsel
0000 X. Xxxxxxx xx Xxxxx Xxx. Xxx 000
Xxxxxx, Xxxxx 00000-0000
Fax: (0-000) 000-0000
xxxxxxxxx@xxxxxxxxxx.xxx
If to the Seller: Aehr Test Systems
Attn: Xxxx X. Xxxxxx
000 Xxxx Xxxxxxx
Xxxxxxx, XX 00000
Tel: (000) 000-0000 x000
Fax: (000) 000-0000
xxxxxxx@xxxx.xxx
11.3 Entire Agreement. The Operative Documents, together with
any exhibits hereto or thereto, constitute the entire agreement by the
Parties hereto and supersede any other agreement, whether written or oral
(including for the avoidance of doubt that certain Trade Confirmation, with a
Trade Date of August 14, 2009), that may have been made or entered into prior
to the date hereof between Seller on the one hand and Buyer on the other hand
with respect to the Claims. Each Party agrees and acknowledges that
(a) except as expressly stated in this Agreement, each Party makes no
representations or warranties, express or implied, with respect to the
transactions contemplated herein or therein; and (b) Seller's sale of the
Transferred Rights and other property, if any, to Buyer is irrevocable, and
each Party shall have no recourse to the other except as specifically set
forth in this Agreement.
11.4 Amendments and Waivers. This Agreement may be amended,
modified, superseded, or canceled, and any of the terms, representations,
warranties or covenants hereof may be waived, only by written instrument
executed by the Party against whom enforcement of such amendment is sought,
or, in the case of a waiver, by the Party waiving compliance.
11.5 Limited Liability. Notwithstanding anything contained in
this Agreement to the contrary, the Parties agree that, absent fraud or
material misstatement, (a) no member, general or limited partner or officer
or director of either Party shall be personally liable for any obligation or
liability of either Party under this Agreement, and (b) all obligations and
liabilities of either Party under this Agreement are enforceable solely
against each Party and Party's assets and not against any assets of any
member, general or limited partner, or officer or director of either Party.
BUYER DOES NOT ASSUME AND SHALL NOT BE RESPONSIBLE FOR ANY OBLIGATIONS OR
LIABILITIES OF SELLER, INCLUDING DISABILITIES OF THE CLAIMS, RELATED TO, OR
IN CONNECTION WITH, THE CLAIMS, THE TRANSFERRED RIGHTS OR THE PROCEEDINGS.
9
11.6 Captions; Counterparts; Execution. The captions in this
Agreement are for convenience only and shall not be considered a part of or
affect the construction or interpretation of any provision of this Agreement.
This Agreement may be executed in one or more counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument. All telecopied or telefaxed confirmations, and other
transaction documents, and signatures thereto, shall be duplicate originals.
11.7 Severability. If any provision hereof is found by an
arbitrator(s) or a court of competent jurisdiction to be prohibited or
unenforceable in any jurisdiction, such provision shall be ineffective as to
such jurisdiction only to the extent of such prohibition or unenforceability,
and such prohibition or unenforceability shall not invalidate the balance of
such provision as to such jurisdiction to the extent it is not prohibited or
unenforceable, nor invalidate such provision in any other jurisdiction, nor
invalidate the other provisions hereof.
11.8 Cooperation. Each Party hereto agrees to cooperate in
good faith with reasonable requests by the other Party hereto in order to
effectuate the intents and purposes of this Agreement.
[Remainder Of Page Left Intentionally Blank]
[Signature Page Follows]
10
IN WITNESS WHEREOF, the Seller and the Buyer have caused this
Agreement to be duly executed as of this 31st day of August, 2009.
SELLER:
AEHR TEST SYSTEMS
a California corporation
By: /s/ XXXX X. XXXXXX
-------------------------
Name: Xxxx X. Xxxxxx
Title: VP, CFO
WIRE INSTRUCTIONS:
Bank: Silicon Valley Bank
ABA No: 12114440399
Acct: Aehr Test Systems
Acct No: 02715023-70
Ref: Spansion Inc. - Fulcrum
BUYER:
FULCRUM CREDIT PARTNERS LLC
a Delaware limited liability company
By: /s/ XXXXXXX X. XXXXXXXX
-------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Signatory
WIRE INSTRUCTIONS:
Bank Name: Xxxxx Fargo Bank, N.A.
ABA No: 000000000
Acct: Fulcrum Credit Partners
Acct No: 5992573542
Ref: Spansion Inc. - Aehr Test Systems
11
SCHEDULE 1
PURCHASE AND SLAE
TRADE DETAIL
Proof of Proof of
Claim Claim Purchase
Creditor Name Number Amount Amount
----------------- -------- -------------- --------------
Aehr Test Systems 182 $18,480,645.02 $11,363,980.02
S-1
EXHIBIT A
EVIDENCE OF TRANSFER
TO: THE DEBTOR AND THE BANKRUPTCY COURT
Aehr Test Systems, with an address at 000 Xxxx Xxxxxxx, Xxxxxxx, XX
00000 ("Seller") transfers unto Fulcrum Credit Partners LLC, its successors
and assigns ("Buyer"), pursuant to the terms of that certain Purchase and
Sale Agreement for Certain Claims in the Chapter 11 Cases1, of even date
herewith (the "Agreement"), all of its right, title and interest in and to
particular scheduled Transferred Rights included in the Claims, in the amount
of $11,363,980.02, identified on the attached Schedule, against Spansion LLC
and its affiliates, subsidiaries and/or assigns (the "Debtor"), in
proceedings for reorganization (the "Proceedings") in the United States
Bankruptcy Court for the District of Delaware ("Court"), which cases are
administered under In re Spansion Inc., et al., Chapter 11 Case No. 09-10690
(KJC). Seller shall retain the remainder of the Claims.
Seller hereby waives to the fullest extent permitted by law any right
to a hearing as may be imposed by Rule 3001 of the Federal Rules of
Bankruptcy Procedure, the Bankruptcy Code, applicable local bankruptcy rules
or applicable law. Seller acknowledges and understands, and hereby
stipulates, that an order of the Bankruptcy Court may be entered without
further notice to Seller transferring to Buyer the foregoing Claims and
recognizing the Buyer as the sole owner and holder of the Claims. Seller
further directs the Debtor, the Bankruptcy Court and all other interested
parties that all further notices relating to the Claims, and all payments or
distributions of money or property in respect of the Claims, shall be
delivered or made to the Buyer.
IN WITNESS WHEREOF, the Seller and the Buyer have caused this Evidence
of Transfer to be duly executed as of August 31, 2009.
SELLER:
AEHR TEST SYSTEMS
By: /s/ XXXX X. XXXXXX
-------------------------
Name: Xxxx X. Xxxxxx
Title: VP, CFO
1 Capitalized terms not otherwise defined herein, have those meaning ascribed
to such terms in the Agreement.
A-1
BUYER:
FULCRUM CREDIT PARTNERS LLC
By: /s/ XXXXXXX X. XXXXXXXX
-------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Signatory
X-0
XXXXXXX X
XXXXXXXX X
X-0
EXHIBIT C
PROOF(S) OF CLAIM
X-0
XXXXXXX X
XXXXXX XXXXXXXX
X-0
