EXHIBIT 2.1
PURCHASE AGREEMENT
This Purchase Agreement (the "AGREEMENT") is made and entered into this
___ day of January, 2002, by and between BAKERS FOOTWEAR GROUP, INC. (the
"BUYER") and SLJ RETAIL LLC, debtor-in-possession (the "DEBTOR") under Case No.
01-75780-crm (the "BANKRUPTCY PROCEEDING") in the United States Bankruptcy Court
for the Northern District of Georgia (the "BANKRUPTCY COURT").
RECITALS
Debtor is engaged in the retail ladies' footwear business and operates
the Xxx & Xxxxx shoe chain (the "BUSINESS").
Pursuant to an order of the Bankruptcy Court, on January 17, 2002,
Debtor conducted an auction of its assets, and at such auction Debtor declared
that Buyer's proposal to purchase certain of Debtor's leasehold interests and
other assets associated therewith, when taken together with certain proposals of
third parties to purchase other assets of the Debtor, represents the highest
offer for the assets of the Debtor.
As contemplated by the Buyer's proposal letter, dated January 17, 2002,
which was accepted by Debtor, and pursuant to an order of the Bankruptcy Court
entered on January 22,2002, the parties are entering into this Agreement for the
purpose of stating definitively the terms on which the Debtor will sell certain
of its assets to Buyer.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Purchase of Assets.
1.1 Assets to be Purchased. On the Closing Date, as hereinafter
defined, in consideration of the covenants, representations and obligations of
the parties hereunder, and subject to the conditions set forth in this
Agreement, the Debtor shall sell, assign, transfer and deliver to Buyer, and
Buyer shall purchase from Debtor, all of Debtor's right, title and interest in
the following assets only, wherever located, free and clear of all liens, claims
and encumbrances of any kind whatsoever (collectively, the "PURCHASED ASSETS"):
o All of Debtor's right, title and interest in the lease
agreements and leasehold estates created thereunder
(collectively, the "LEASES"), all leasehold improvements (to
the extent such items are the property of Debtor) and any
related security deposits associated with the retail store
locations of Debtor listed on EXHIBIT A (the "ACQUIRED
STORES").
o All non-inventory tangible personal property of Debtor,
including but not limited to (a) all furniture, fixtures,
leasehold improvements, office furniture, computer registers,
computer systems, register hardware, register software, phone
systems and numbers, personal computers and related keys,
passwords and safe combinations, that is located in the
Acquired Stores, and (b) all computer equipment, systems,
printers, scanners, disk drives, peripheral devices and other
computer hardware, located in the Acquired Stores (and located
at Debtor's office); in each case together with all spare
parts, operating manuals, warranties and other rights against
the respective manufacturers and dealers thereof
(collectively, the "FFE").
o All supply inventory located in the Acquired Stores, or in the
office or warehouse of Debtor, or located at any supplier or
in transit, that is owned by Debtor and used or to be used in
the Business or with respect to the Acquired Stores
(collectively, the "SUPPLIES").
Except for the Purchased Assets, the Buyer shall not acquire any other
assets of the Debtor whatsoever, including, without limitation, any cash, cash
equivalents, receivables, or merchandise inventory.
1.2 Assumption of Lease Obligations. Subject to the terms and
conditions of this Agreement, on the Closing Date, the Buyer shall assume
(effective as of the Possession Date) all the obligations of the Debtor under
the Leases, to the extent such obligations are attributable to periods from and
after the Possession Date (collectively, the "LEASE OBLIGATIONS"). Except for
the Lease Obligations, the Buyer shall not assume any obligation or liability of
the Debtor of any kind, whether liquidated, unliquidated, fixed, contingent,
known, unknown, prepetition, post-petition or otherwise.
1.3 Possession Date. The Debtor shall surrender possession of the
Purchased Assets to Buyer on April 1,2002 (the "POSSESSION DATE").
1.4 Deposit. The Buyer hereby covenants and agrees that it shall
deliver to the Debtor on the first business day after the entry of the Approval
Order (defined in Section 7.5) the sum of Three Hundred Seventy Thousand and
No/100 Dollars ($370,000) which, together with the One Hundred Thirty Thousand
and No/100 Dollars ($130,000) previously delivered to Debtor by Buyer in advance
of the Debtor's auction of the Purchased Assets, shall be held by the Debtor in
accordance with the terms of this Agreement (such sum and all interest accrued
thereon is hereinafter referred to as the "DEPOSIT").
2. Purchase Price. Subject to the provisions of this Section 2 and Section 3.6
below, the aggregate consideration to be paid by Buyer to Debtor for the
Purchased Assets (the "PURCHASE PRICE") shall be the assumption of the Lease
Obligations plus the payment of One Million Eight Hundred Thousand Dollars
($1,800,000) (the "CASH COMPONENT"); provided that (a) if the Debtor does not
surrender possession to Buyer of all of the Acquired Stores on April 1, 2002,
then the Cash Component shall be reduced by Ten Thousand Dollars ($10,000) for
each day elapsed between
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April 1, 2002 and the date possession of the Acquired Stores is actually
surrendered to Buyer, and (b) if any of the Acquired Stores, as of the
Possession Date, does not have the minimum floor and wall fixtures, cash
registers, telephone equipment and other fixtures as described on SCHEDULE 2.1
attached hereto, the Cash Component shall be reduced $10,000 for each Acquired
Store not meeting such minimum requirements.
3. Transactions on Closing Date and Possession Date.
3.1 Closing. The closing of the transactions provided for herein (the
"CLOSING") shall be deemed to take place on the Closing Date at the office of
Debtor's bankruptcy counsel, Xxxxxx, Xxxxxx, Xxxxxxx LLP, 0000 Xxxx Xxxxxxxxx,
Xxxxxxx, Xxxxxxx.
3.2 Closing Date. The Closing shall be held on February 15, 2002 (the
"CLOSING DATE"), or such other date as Debtor and Buyer shall mutually agree.
The Buyer and Debtor acknowledge that time is of the essence of every provision
of this Agreement, and each of the parties shall diligently continue to work to
satisfy all conditions to the Closing which are reasonably within such party's
control, so that the Closing may occur on a timely basis.
3.3 Debtor's Deliveries at Closing. On the Closing Date, the Debtor
shall make or cause the following deliveries to Buyer:
3.3.1 Debtor shall execute and deliver one or more Assignment
and Assumption Agreements with respect to the Leases substantially in the form
of EXHIBIT B attached hereto (the "LEASE ASSIGNMENTS"). The Lease Assignments
shall be effective as of April 1,2002;
3.3.2 Debtor shall deliver to Buyer one or more bills of sale
and other instruments of assignment reasonably satisfactory to Buyer and
consistent with this Agreement, pursuant to which Debtor sells, transfers and
assigns to Buyer all of the other Purchased Assets (the "BILLS OF SALE"). The
Bills of Sale shall be effective as of April 1, 2002; and
3.3.3 Debtor shall deliver to Buyer copies of all appropriate
final orders of the Bankruptcy Court, including without limitation the Approval
Order identified in Section 7.5 below, authorizing the Debtor to effect the
assumption and assignment to the Buyer of the Leases and the sale of the
Purchased Assets to Buyer, each on the terms set forth in this Agreement.
3.4 Buyers Deliveries at Closing. On the Closing Date, Buyer shall make
or cause the following deliveries to the Debtor:
3.4.1 Buyer shall execute and deliver to Debtor each of the
Assignment Agreements, to evidence the Buyer's assumption of the Lease
Obligations.
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3.4.2 Buyer shall deliver to Debtor an irrevocable standby
letter of credit issued by Fleet National Bank ("ISSUER") in the amount of
$1,300,000 on terms reasonably satisfactory to Buyer, Debtor, counsel for
Debtor's secured lenders ("SECURED LENDERS") and counsel for Debtor's unsecured
creditors' committee ("UNSECURED LENDERS") and consistent with the provisions
described below (the "LETTER OF CREDIT"). Such Letter of Credit may be drawn
down by Debtor on or after April 1, 2002, and on or before April 30, 2002, upon
presentment thereof to the Issuer with an affidavit of an officer of Debtor to
the effect that (i) Debtor has surrendered possession of the Acquired Stores to
Buyer, (ii) Debtor is in material compliance with all of its obligations under
this Agreement, and (iii) Buyer has failed to pay all or a designated portion of
the Cash Component of the Purchase Price to Debtor on the Possession Date.
3.6 Sales and Other Taxes. Any sales, use or similar transfer tax which
may be payable by reason of the sale of the Purchased Assets to Buyer under this
Agreement shall be the responsibility of Buyer (at Buyer's sole cost and
expense), provided that Debtor shall cooperate with Buyer to take advantage of
any available exemption.
3.7 Possession Date; Reduction of Cash Component. On the Possession
Date, Buyer shall pay to Debtor, in immediately available funds, an amount equal
to the Cash Component, against receipt from Debtor of the original Letter of
Credit and the return of the Deposit previously delivered to Debtor by Buyer.
If, prior to the Possession Date, the Buyer determines that
the Debtor has failed to make a payment due under any of the Leases or any other
payment which is the responsibility of the Debtor hereunder, the Buyer shall
promptly send Debtor, Secured Lenders and Unsecured Lenders a written notice
("Notice") which sets forth all of the following: (i) the amount due, (ii) the
payee to whom such amount is due, and (iii) copies of any documents relevant or
related to the amount alleged to be due. The Debtor, the Secured Lenders and the
Unsecured Lenders shall notify the Buyer within seven (7) calendar days their
respective receipt of the Notice whether or not they dispute any information in
the Notice.
If Debtor, Secured Lenders and Unsecured Lenders agree with the
information in the Notice, the Debtor shall pay the amount set forth in the
Notice to the payee set forth therein within ten (10) days of Debtor's receipt
of the Notice and shall furnish reasonably satisfactory evidence to the Buyer of
such payment. If Debtor, Secured Lenders and Unsecured Lenders fail to respond
to the Buyer's Notice within such seven-day period, or if Debtor fails to make
such payment in full within such ten-day period, Buyer shall have the right to
pay the amount set forth in the Notice to the payee set forth therein on behalf
of the Debtor and the amount of such payment shall be deducted from the Cash
Component on the Possession Date.
If Debtor, Secured Lenders or Unsecured Lenders timely notifies Buyer
that any of them disputes any of the information set forth in the Notice, then
neither Buyer nor Debtor shall make any
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payment of the alleged amount and the such disputing party shall diligently
pursue the resolution of such matter with the payee specified in the Notice.
4. Conditions Precedent to Closing.
4.1 Conditions to Debtor's Obligations. Debtor's obligation to make
the deliveries required of Debtor at the Closing Date shall be subject to the
satisfaction or written waiver by Debtor of each of the following conditions:
4.1.1 All of the representations and warranties of Buyer
contained herein shall continue to be true and correct at the Closing in all
material respects, all covenants and obligations to be performed by Buyer prior
to the Closing shall have been performed in all material respects and Buyer
shall have certified the foregoing to Debtor in writing.
4.1.2 Buyer shall have delivered to Debtor appropriate
evidence of all necessary corporate action by Buyer in connection with the
transactions contemplated hereby, including, without limitation: (i) certified
copies of resolutions duly adopted by Buyers directors approving the
transactions contemplated by this Agreement and authorizing the execution,
delivery, and performance by Buyer of this Agreement; and (ii) a certificate as
to the incumbency of officers of Buyer executing this Agreement and any
instrument or other document delivered in connection with the transactions
contemplated by this Agreement. Such certificates shall be in form and substance
reasonably acceptable to the Debtor.
4.1.3 The Bankruptcy Court shall have entered the Approval
Order as contemplated by and defined in Section 7.5 below, and the Approval
Order shall not have been stayed as of the Closing Date.
4.2 Conditions to Buyer's Obligations. Buyer's obligation to make the
deliveries required of Buyer at the Closing shall be subject to the
satisfaction or written waiver by Buyer of each of the following conditions:
4.2.1 All representations and warranties of Debtor contained
herein shall continue to be true and correct at the Closing in all material
respects, all covenants and obligations to be performed by Debtor prior to the
Closing shall have been performed in all material respects and Debtor shall have
certified the foregoing to Buyer in writing.
4.2.2 The Bankruptcy Court shall have entered the Approval
Order in accordance with Section 7.5 below and the Approval Order shall not have
been stayed as of the Closing Date.
4.3 Termination. This Agreement may be terminated prior to the Closing
Date upon the occurrence of any of the following events:
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4.3.1 The delivery of written notice from Debtor to Buyer if
the Buyer is in material breach of any provision of this Agreement and such
breach has not been cured by the earlier of (a) five (5) days after written
notice from Debtor to Buyer specifying such breach or (b) February 15, 2002 (the
"OUTSIDE DATE").
4.3.2 The delivery of written notice from Buyer to Debtor if
the Debtor is in material breach of any provision of this Agreement and such
breach has not been cured by the earlier of (a) five (5) days after written
notice from Buyer to Debtor specifying such breach, or (b) the Outside Date.
4.3.3 The delivery of written notice from Buyer to Debtor if
the Approval Order has not been entered on or before January 31, 2002.
4.3.4 By Buyer upon written notice to the Debtor if the
conditions to set forth in Section 4.2 have not been fulfilled or waived in
writing by Buyer (if Buyer is not otherwise in default under this Agreement).
4.3.5 By Debtor upon written notice to the Buyer if the
conditions to set forth in Section 4.1 have not been fulfilled or waived in
writing by Debtor (if Debtor is not otherwise in default under this Agreement).
4.4 Effect of Termination. Upon the termination of this Agreement
pursuant to Section 4.3, the parties shall no longer be obligated to proceed to
the Closing of the sale of the Purchased Assets to Buyer, provided such
termination shall not affect the right of either party to bring an action
against the other for a breach occurring prior to or in connection with such
termination. Upon any termination pursuant to Section 4.3.2, 4.3.3 or 4.3.4
above, Debtor shall refund the Deposit to the Buyer within two (2) business days
after the date of termination. Upon any termination pursuant to the above
Sections 4.3.1 or 4.3.5 (except for a termination pursuant to Section 4.3.5 due
to the failure of the condition set forth in Section 4.1.3), Debtor shall, in
addition to its remedies set forth in the first sentence of this Section 4.4,
retain the Deposit, and the Buyer shall be deemed to have waived any right to a
refund of the Deposit.
4.5 Specific Performance. Following the entry of the Approval Order,
Buyer will be entering into certain non-cancelable commitments for the purchase
of inventory necessary to operate the Acquired Stores from and after the
Closing. The Debtor acknowledges and agrees that the Acquired Stores and the
other Purchased Assets covered by this Agreement are unique and that damages
will not be an adequate remedy to Buyer if the Closing fails to occur for any
reason other than the breach of this Agreement by Buyer. Accordingly, the Debtor
acknowledges and agrees that the Buyer shall be entitled to seek and to obtain a
decree of specific performance against Debtor in order to compel the Closing of
the transactions contemplated hereby.
If the Buyer has breached its covenants and agreement under this
Agreement and has failed, refused or is unable to consummate any purchase and
sale contemplated herein by the date of Closing,
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then the Debtor may pursue all legal and equitable remedies against the Buyer,
including, without limitation, maintaining an action for specific performance.
5. Debtor's Representations and Warranties. The Debtor hereby makes the
following representations and warranties to Buyer as of the date of this
Agreement:
5.1 Validity of Agreement. Assuming that this Agreement constitutes a
valid and binding agreement of Buyer, upon the Debtor's obtaining the Approval
Order, this Agreement shall constitute the valid and binding obligation of
Debtor enforceable in accordance with its terms, subject to laws of general
application in effect affecting creditors' rights and subject to the exercise of
judicial discretion in accordance with general equity principles.
5.2 Organization, Standing and Power. Debtor is a limited liability
company duly organized, validly existing and in good standing under the laws of
its state of organization. Subject to the applicable provisions of bankruptcy
law, Debtor is a debtor-in-possession having all requisite corporate power and
authority to own, lease and operate the Purchased Assets, to carry on the
Business as now being conducted and, subject to the Debtor's obtaining the
Approval Order, to execute, deliver and perform this Agreement.
5.3 No Conflicts or Violations. Subject to Debtor's obtaining the
Approval Order, the execution and delivery of this Agreement, the consummation
of the transactions herein contemplated, and the performance of, fulfillment of
and compliance with the terms and conditions hereof by Debtor do not and will
not: (a) conflict with or result in a breach of the articles of organization and
operating agreement of Debtor; (b) violate any statute, law, rule or regulation,
or any order, writ, injunction or decree of any court or governmental authority
applicable to Debtor; or (c) violate or conflict with, constitute a default
under or result in the acceleration of payment or performance of any obligations
of Debtor under, any of the Leases.
5.4 Title to Purchased Assets and Purchased Assets. At Closing, Debtor
will convey to Buyer, good and marketable title to all of the Purchased Assets,
free and clear of all liens, claims, encumbrances and other rights of third
parties other than those to be discharged through the Approval Order if the
Approval Order is obtained by Debtor.
5.5 Status of Leases. Debtor is in actual possession of the entire
demised premises covered by the respective Leases, and has timely paid and
performed all obligations of the tenant under such Leases since the date on
which Debtor commenced the Bankruptcy Proceeding. Debtor has furnished to Buyer
(a) true and complete copies of each of the Leases, as amended through the date
of this Agreement, and (b) a true and complete schedule of all security deposits
held for the Debtor's account. Debtor has not received notice of termination of
any of the Leases from the respective landlords thereof, and to Debtor's
knowledge, no event has occurred which would entitle the landlord under any of
the Leases to terminate such Lease if the Approval Order is obtained. No
landlord has offset, and to Debtor's knowledge, no event has occurred which
would give such landlord the right to offset, against
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any portion of the security deposit held by such landlord any amounts due from
Debtor under the Leases.
5.6 No Other Representations and Warranties. Except for the
representations and warranties set forth in this Section 5, the Debtor does not
make, and the Buyer hereby waives the benefit of, any implied representations or
warranties whatsoever, including without limitation, any implied representations
or warranties regarding fitness for a particular purpose or of merchantability.
6. Buyer's Representations and Warranties. Buyer hereby makes the following
representations and warranties to Debtor as of the date of this Agreement:
6.1 Validity of Agreement. All corporate action on the part of Buyer
necessary for the authorization, execution, delivery and performance of this
Agreement by Buyer, including but not limited to the performance of Buyer's
obligations hereunder, has been duly taken. This Agreement constitutes the valid
and binding obligation of Buyer enforceable in accordance with its terms,
subject to laws of general application in effect affecting creditors' rights and
subject to the exercise of judicial discretion in accordance with general equity
principles.
6.2 Organization, Standing and Power. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Buyer has all requisite corporate power and authority to own, lease
and operate its properties, to carry on its business as now being conducted and
to execute, deliver and perform this Agreement and all writings relating hereto.
6.3 No Conflicts or Violations. The execution and delivery of this
Agreement, the consummation of the transactions herein contemplated, and the
performance of, fulfillment of and compliance with the terms and conditions
hereof by Buyer do not and will not: (a) conflict with or result in a breach of
the certificate of incorporation or by-laws of Buyer; (b) violate any statute,
law, rule or regulation, or any order, writ, injunction or decree of any court
or governmental authority; or (c) violate or conflict with or constitute a
default under any agreement, instrument or writing of any nature to which Buyer
is a party or by which Buyer or its assets or properties may be bound.
7. Conduct of Business and Covenants Applicable Prior to and After Closing.
7.1 Access to Records and Properties. From and after the date of this
Agreement until the Possession Date, Debtor shall, upon reasonable advance
notice, afford to Buyer's officers, independent public accountants, counsel,
lenders, consultants and other representatives, reasonable access during normal
business hours to the Acquired Stores, and commencing March 20, 2002, Buyer
shall be entitled, in accordance with the terms of the Leases, to have access to
the Acquired Stores for purposes of preparing the fixtures and signage for
Buyer's commencement of operations on the Possession Date; provided, however,
such access by Buyer shall not interfere with the operation of Debtor's business
nor cause any default under, or breach of, any Lease.
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7.2 Work Force. Prior to the Possession Date, Buyer shall have the
right to interview and extend employment offers to employees of Debtor for
positions commencing on the Possession Date. Effective as of the Possession
Date, Debtor shall cause all of its employees to whom Buyer desires to extend an
offer of employment to be released from their employment with Debtor. On the
Possession Date or within ten (10) days thereafter, Debtor shall pay or cause to
be paid to all employees of Debtor all amounts due them with respect to their
services rendered through the day preceding the Possession Date; provided,
however, Debtor shall not be obligated to pay its employees for accrued vacation
pay or sick time.
7.3 Operation of Business. From the date hereof through the day
immediately preceding the Possession Date, Debtor may continue to operate each
of the Acquired Stores and Debtor may conduct going out of business sales at the
Acquired Stores in accordance with applicable law and orders of the Bankruptcy
Court. Subject to Section 7.6 below, from the date of this Agreement through the
day immediately preceding the Possession Date, the Debtor shall cause all rent,
taxes, utilities and other payments due and payable with respect to the Acquired
Stores, under the terms of the Leases or otherwise, to be paid no later than the
due date thereof (disregarding grace periods), and shall further perform or
cause to be performed on a timely basis all obligations of the Debtor under the
Leases but specifically excluding any remodeling obligations of Debtor set forth
in any Lease. Debtor shall continue to maintain and insure the FFE and Supplies
in accordance with Debtor's past practice, and shall not dispose of any FFE or
Supplies (except for Supplies consumed in the ordinary course of business)
without the prior written consent of Buyer, which may be withheld in Buyer's
sole discretion.
7.4 Payment of Cure Amounts. In connection with its motion for the
Approval Order, Debtor shall use all commercially reasonable efforts to fulfill
any and all conditions required to be fulfilled for the Approval Order to
be issued, including without limitation the payment in full or other arrangement
for the satisfaction of all prepetition amounts due to landlords under the
Leases and other amounts, if any, required to be paid in order for the Approval
Order to be issued and effective (collectively, the "CURE AMOUNTS"). Such Cure
Amounts shall be paid at the time set forth in the Approval Order.
7.5 Bankruptcy Court Approval. Promptly following the execution of this
Agreement (and in no event later than one (1) business day thereafter), the
Debtor will seek an order from the Bankruptcy Court (the "APPROVAL ORDER") which
(i) approves the sale of the Purchased Assets to Buyer on the terms and
conditions set forth in this Agreement and authorizes the Debtor to proceed
with this transaction, (ii) includes a specific finding that Buyer is a good
faith purchaser of the Purchased Assets, (iii) states that the sale of the
Purchased Assets to Buyer shall be free and clear of all liens, claims,
interests and encumbrances whatsoever, (iv) approves the Debtor's assumption and
assignment of the Leases (collectively, the "SECTION 365 CONTRACTS") pursuant
to Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and orders the Debtor to pay
any prepetition and other cure amounts payable to the other parties to the
Section 365 Contracts as a condition to such assumption and assignment, and (v)
orders that the Buyer's use of the Bakers or Wild Pair trade name, and the sale
at retail by Buyer of men's and/or women's fashion footwear, including related
accessories, in the Acquired Stores which will use the Wild Pair trade name, all
as set forth on SCHEDULE 7.5 attached hereto, shall be permissible
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under the terms of the applicable Leases notwithstanding any contrary
restrictions regarding the use of the name or the sale of ladies' footwear and
accessories only. Without limiting the foregoing, the terms of the Approval
Order shall be satisfactory to Buyer; provided however, the Buyer shall be
deemed to have waived all of the foregoing requirements by consenting to the
form of the Approval Order entered by the Bankruptcy Court. The Debtor shall use
its commercially reasonable efforts to obtain entry of the Approval Order on or
before January 31, 2001. Both Buyer's and Debtor's obligations to consummate the
sale and purchase of the Purchased Assets are conditioned upon the Bankruptcy
Court's entry of the Approval Order.
7.6 Prorations. The Debtor shall remain responsible through the day
immediately preceding the Possession Date for the payment of rent, estimated
common area maintenance charges, utilities, real and personal property taxes,
insurance and other estimated tenant charges under the Leases which are
attributable to the periods prior to the Possession Date. All obligations due in
respect of periods ending prior to the Possession Date shall be paid in full or
otherwise satisfied by Debtor. The Buyer shall be responsible from and after
Possession Date for all of Lease Obligations attributable to the periods after
the Possession Date including the payment of rent, estimated common area
maintenance charges, utilities, real and personal property taxes, insurance and
other estimated tenant charges under the Leases. If the Possession Date is any
date other than the first day of a month, then all charges shall be prorated as
of, and such pro ration paid on, the Possession Date. Notwithstanding anything
in this Agreement to the contrary, for any current charges or expenses due from
tenant under the Leases which are based on estimates (such as common area
maintenance charges and taxes), Buyer shall be responsible, at its sole cost and
expense, for any additional amounts for which demand is made after the
Possession Date.
8. Miscellaneous.
8.1 Attorneys' Fees. If either party hereto brings an action or other
proceeding outside of the Bankruptcy Proceeding to enforce or to 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.
8.2 Notices. Unless otherwise provided herein, any notice, tender, or
delivery to be given hereunder by either party to the other may be effected by
personal delivery in writing, by facsimile, or by registered or certified mail,
postage prepaid, return receipt requested, and shall be deemed communicated if
personally delivered, as of the date of confirmed delivery, if sent by
facsimile, when receipt is confirmed, and if mailed three business days after
the date of mailing. Mailed notices shall be addressed as set forth below, but
each party may change its address by written notice in accordance with this
paragraph.
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To Debtor: SLJ Retail LLC
000 Xxxxxxxxxx Xxxxx, Xxxxx X
Xxxxxx, Xxxxxxx 00000
Attn: Xxx Xxxxxxxx
Telecopy: (000) 000-0000
With a copy to: Xxxxxx, Xxxxxx, Xxxxxxx LLP
2800 One Atlantic Center
0000 X. Xxxxxxxxx Xxxxxx, XX
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxx
Telecopy: (000) 000-0000
And a copy to: Xxxxxxxxx Xxxxxxx LLP
0000 Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
To Buyer: Bakers Footwear Group, Inc.
0000 Xxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxx
Telecopy: (314) 64l-0390
With a copy to: Xxxxxxxx Xxxxxx LLP
Xxx Xxxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
To Secured Lenders: Xxxxxxx, Xxxxxx & Weiner, P.C.
000 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxx Xxxxx Xxxxx Xxxxxx, Esq.
Telecopy: (000) 000-0000
To the Unsecured
Lenders: Xxxxx Bonaquist, And Fox, LLP
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
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8.3 Entire Agreement; Modifications. This instrument and the documents
to be executed pursuant hereto contain the entire agreement between the parties
relating to the sale of the Purchased Assets and assumption of the Lease
Obligations. 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. This
Agreement may be modified, amended or supplemented only by a written instrument
duly executed by the party against whom it is to be enforced.
8.4 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.
8.5 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 this Agreement shall survive except that, if Buyer cannot acquire and
Debtor cannot sell the Purchased Assets by reason of such determination, either
party may terminate this Agreement, and it shall be of no further force and
effect, unless both parties agree in writing to the contrary.
8.6 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.
8.7 Further Assurances. Each party hereto shall execute, acknowledge
and deliver any further assurance, documents and instruments reasonably
requested by the other party hereto for the purpose of giving effect to the
transactions contemplated herein or the intentions of the parties with respect
hereto.
8.8 Waiver. No waiver of any provision of this Agreement shall be
deemed, or shall constitute, a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver unless so stated.
No waiver shall be binding unless executed in writing by the party making the
waiver.
8.9 Brokerage Claims. The Debtor and Buyer each represent and warrant
to the other that such party has not incurred any liability to any
representative, broker or agent with respect to the payment of any commission
regarding the consummation of the transaction contemplated hereby. If any claims
for commissions, fees or other compensation, including, without limitation,
brokerage fees, finder's fees, or commissions are ever asserted against Buyer or
Debtor in connection with this transaction, all such claims shall be handled and
paid by the party whose actions form the basis of such claim and such party
shall indemnify, defend (with counsel reasonably satisfactory to the party
entitled to indemnification), protect, and save and hold the other harmless from
and against any and all such claims
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or demands asserted by any person, firm or corporation in connection with the
transaction contemplated hereby.
8.10 Payment of Fees and Expenses. Except as provided in Section 8.1,
each party to this Agreement 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 sale of the
Purchased Assets described herein.
8.11 Assignments. This Agreement shall not be assigned by either party
hereto without the prior written consent of the other party hereto, provided
that after the Closing (a) the Buyer may assign its rights hereunder to any
person controlling, controlled by or under common control with the Buyer
(provided Buyer shall remain primarily liable for its obligations hereunder),
and (b) the rights of Debtor hereunder may be transferred or distributed as
ordered by the Bankruptcy Court. Subject to the immediately preceding sentence,
this Agreement shall bind and inure to the benefit of the respective successors
and assigns of the parties hereto.
8.12 Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Delaware.
8.13 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.
8.14 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.
8.15 Bankruptcy Court Jurisdiction. BUYER AND DEBTOR 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 PURCHASED ASSETS
AND/OR LEASE OBLIGATIONS, AND BUYER EXPRESSLY CONSENTS TO AND AGREES NOT TO
CONTEST SUCH EXCLUSIVE JURISDICTION.
[THE BALANCE OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY]
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IN WITNESS WHEREOF, the parties hereto have caused this Purchase
Agreement to be executed by their duly authorized representatives, as of the
day and year first above written.
BAKERS FOOTWEAR GROUP, INC.
By: /s/ XXXXX XXXXXX
-----------------------
Xxxxx Xxxxxx, President
SLJ RETAIL LLC,
Debtor in Possession
By: /s/ XXXXX XXXXXXXX
-----------------------
Name: Xxxxx Xxxxxxxx
-----------------------
Its: VP/CFO
------------------------
[Exhibit A, Schedule of Stores, omitted. The Registrant undertakes to furnish
supplementally a copy of such omitted schedule to the Commission upon request.]
-14-
EXHIBIT B
ASSIGNMENT AND ASSUMPTION OF LEASE
This ASSIGNMENT AND ASSUMPTION OF LEASE ("Assignment") is made and
entered into effective as of the 1st day of April, 2002 ("Effective Date") by
and among SLJ RETAIL LLC, debtor-in-possession ("Assignor") in Case No.
01-75780-crm ("Bankruptcy Proceeding"), pending in the United States Bankruptcy
Court for the Northern District of Georgia ("Bankruptcy Court") and BAKERS
FOOTWEAR GROUP, INC., a Missouri corporation ("Assignee").
WITNESSETH:
WHEREAS, Assignor is the Tenant under a certain lease attached hereto
as EXHIBIT A and made a part hereof (the "Lease") with Landlord for the certain
premises described in the Lease (the "Premises"); and
WHEREAS, pursuant to an Asset Purchase Agreement dated as of January
25, 2002 ("Purchase Agreement"), and an order of the Bankruptcy Court entered
on January __, 2002, Assignor has been authorized, in accordance with Section
365 of the Bankruptcy Code, to assume the Lease and to assign the Assignor's
rights thereunder to the Assignee, and the Assignee has agreed to assume all of
Assignor's obligations in connection with the Lease;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Assignor hereby assigns, transfers and conveys to Assignee all of
Assignor's right, title and interest in the Lease.
2. From and after the Effective Date, Assignee hereby assumes and
agrees to keep, perform and fulfill all the obligations of Assignor under the
Lease accruing on or after the Effective Date and acknowledges that Assignor
shall have no further obligations under said Lease from and after the Effective
Date. Assignee hereby accepts the Assignment as Tenant under the Lease and
hereby agrees to defend and indenmify Assignor against any and all claims,
demands, causes of action, losses, fines, penalties, costs and expenses
(including reasonable attorney's fees) arising out of or resulting from or in
connection with the Lease and Tenant's use, occupancy and possession of the
Premises from and after April 1,2002, or such other date on which Assignor
commences to occupy the Premises.
3. This Assignment shall inure to the benefit of and be binding upon
the parties and their respective successors and assigns.
4. This Assignment may be executed in any number of counterparts, each
of which shall be deemed an original and all of which together shall constitute
one and the same original.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK;
SIGNATURES ON FOLLOWING PAGES]
IN WITNESS WHEREOF, the parties have caused this Assignment to be
executed by their duly authorized representatives as of the day and year first
above written.
ASSIGNOR:
SLJ RETAIL, LLC
By:
-----------------------------------
STATE OF )
----------- )
COUNTY OF )
------------
On this __ day of ___________________, 2002, before me
personally appeared ___________ as ________________ of SLJ RETAIL, LLC, known
to me to be the person who executed the within Assignment and Assumption of
Lease in behalf of said _____________________ and acknowledged to me that he
executed the same for the purposes therein stated.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed
my official seal in the County and State aforesaid, the day and year first above
written.
-----------------------------------
Notary Public
(SEAL)
My Commission Expires:
-2-
ASSIGNEE:
BAKERS FOOTWEAR GROUP, INC.
By:
-----------------------------------
STATE OF )
----------- )
COUNTY OF )
------------
On this ___ day of_____,2002, before me personally appeared
______________ of BAKERS FOOTWEAR GROUP, INC., known to me to be the person who
executed the within Assignment and Assumption of Lease in behalf of said
______________ and acknowledged to me that he executed the same for the purposes
therein stated.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed
my official seal in the County and State aforesaid, the day and year first
above written.
------------------------------
Notary Public
(SEAL)
My Commission Expires:
-3-
Consent of Landlord
The undersigned, ____________________ is the owner and landlord (the
"Landlord") of the Premises under the Lease with Assignor. By signing below,
Landlord hereby consents to Assignor's assignment of the Lease to Assignee on
substantially the terms set forth in the foregoing Assignment. Capitalized terms
used herein shall have the meanings ascribed to them by the foregoing
Assignment.
Landlord further consents to the Assignee's entering into possession of the
premises on or about April 1, 2002. Landlord acknowledges that when Assignee
takes possession of the demised premises at such time, Assignee may not be in a
position to commence operating its business at the site due to inventory
delivery schedules. Landlord hereby agrees that during the month of April, 2002,
Assignee need not be operating at the demised premises until such time as
Assignee has obtained an adequate supply of inventory, provided that Assignee
uses all commercially reasonable efforts to procure a supply of inventory in
order to commence business at the demised premises no later than May 1, 2002.
Landlord further consents to the Assignee's performance of cosmetic remodeling
of the demised premises with Assignee's signage and fixtures template, all in
accordance with the terms of the Lease that are applicable to the construction
of tenant improvements. Landlord shall not hold Assignee responsible for any
failure by Assignor to comply with the remodeling and refurbishing obligations
of the tenant under the Lease during periods prior to the date the Assignee
takes occupancy.
To the extent, if any, that Landlord has previously objected, in the Bankruptcy
Proceeding or otherwise, to the assumption by Assignor and assignment to
Assignee of the Assignor's rights under the Lease on the terms set forth in the
Purchase Agreement, such objections hereby are withdrawn, PROVIDED THAT other
objections, including without limitation objections as to the cure amounts due
to Landlord from Debtor, are preserved and shall not be deemed waived hereby.
Landlord represents and warrants that it is the sole owner of the entire
Landlord's interest in the Lease, that the Lease remains in full force and
effect in accordance with its terms, and that the person signing below is duly
authorized and empowered to act on behalf of the Landlord in this connection.
[THE BALANCE OF THIS PAGE IS LEFT BLANK INTENTIONALLY]
-4-
Executed this day of , 2002.
--- -------------
LANDLORD:
By:
--------------------------
Title:
----------------------
STATE OF )
----------- )
COUNTY OF )
------------
On this ___ day of_____,2002, before me personally appeared
______________ of ____________________, known to me to be the person who
executed the within Consent of Landlord in behalf of said ______________ and
acknowledged to me that he executed the same for the purposes therein stated.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed
my official seal in the County and State aforesaid, the day and year first
above written.
------------------------------
Notary Public
(SEAL)
My Commission Expires:
-5-
