EXHIBIT 10.7
FORM OF
LOAN PORTFOLIO PURCHASE AGREEMENT
by and between
BT COMMERCIAL CORPORATION
and
▇▇▇▇ GRAPHIC SYSTEMS, INC.
Dated as of October __, 1996
TABLE OF CONTENTS
Page
1. DEFINITIONS....................................................... 1
1.1 Defined Terms............................................... 1
1.2 Accounting Terms and Determinations......................... 4
1.3 Other Terms................................................. 4
2. PURCHASE AND SALE OF ASSETS....................................... 4
2.1 Agreement to Sell and Purchase.............................. 4
2.2 Purchase Price............................................. 5
2.3 No Assumption of Liabilities................................ 6
3. REPRESENTATIONS AND WARRANTIES BY SELLER......................... 6
3.1 Organization, Standing and Qualification................... 6
3.2 Power and Authority to Conduct Business.................... 7
3.3 Execution, Delivery and Performance of Agreement........... 7
3.4 Authority; Right to Sell Purchased Loans................... 7
3.5 Valid and Binding Obligation............................... 7
3.6 Litigation................................................. 7
3.7 Title to Properties........................................ 7
3.8 Lien Priority.............................................. 8
3.9 No Setoffs or Defenses..................................... 8
3.10 Insurance.................................................. 8
3.11 Records.................................................... 8
3.12 Accounting for Purchased Loans............................. 8
3.13 Purchased Loans - Compliance with Applicable Law........... 8
3.14 Purchased Loans - Performance by Rockwell and RGS.......... 9
3.15 Purchased Loans - Absence of Defaults...................... 9
3.16 Purchased Loans - Absence of Disputes...................... 9
3.18 Bulk Sales................................................. 9
3.19 Disclosure................................................. 9
4. REPRESENTATIONS AND WARRANTIES BY PURCHASER...................... 9
4.1 Organization, Standing and Qualification................... 10
4.2 Execution, Delivery and Performance of Agreement........... 10
4.3 Authority.................................................. 10
4.4 Valid and Binding Obligation............................... 10
5. COVENANTS OF SELLER.............................................. 10
5.1 General.................................................... 10
5.2 Conduct in Ordinary Course................................. 10
5.3 Notice of Change........................................... 11
i
Page
5.4 Access to Information and Documents........................ 11
5.5 Corporate Resolutions...................................... 11
5.6 Put Right.................................................. 11
5.7 Costs and Expenses......................................... 11
5.8 NYDN Purchase Agreement.................................... 12
6. COVENANTS OF PURCHASER........................................... 12
6.1 General.................................................... 12
6.2 Notice of Change........................................... 12
6.3 Corporate Resolutions...................................... 12
7. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF PURCHASER............. 12
7.1 Representations and Warranties............................. 12
7.2 Covenants.................................................. 13
7.3 Closing Date............................................... 13
7.4 No Material Adverse Change................................. 13
7.5 Absence of Changes or Events............................... 13
7.6 No Market Impairment....................................... 13
7.7 Terms of Transactions...................................... 13
7.8 Delivery of Documents...................................... 13
7.9 Opinion of Counsel......................................... 13
7.10 Consents................................................... 14
7.11 Litigation................................................. 14
7.12 Due Diligence Investigation................................ 14
7.13 Service and Remarketing Agreement.......................... 14
7.14 Seller Hersant Guaranty.................................... 14
7.15 Seller Principal Guaranty.................................. 14
7.16 Seller Principal Letter of Credit.......................... 14
7.17 Seller Interest Guaranty................................... 14
7.18 Seller Interest Letter of Credit........................... 15
7.19 Rockwell Guaranty.......................................... 15
7.20 Payment of Fees and Expenses............................... 15
7.21 Consummation of Acquisition of RGS......................... 15
8. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLER................ 15
8.1 Representations and Warranties............................. 15
8.2 Covenants.................................................. 15
8.3 Litigation................................................. 15
8.4 Consents................................................... 16
8.5 Consummation of Acquisition of RGS......................... 16
9. CLOSING.......................................................... 16
ii
Page
9.1 Closing; Closing Date...................................... 16
9.2 Deliveries by Seller at Closing............................ 16
9.3 Purchaser's Deliveries at Closing.......................... 17
10. ADDITIONAL COMMITMENTS............................................ 17
10.1 General..................................................... 17
10.2 Notices to Debtors.......................................... 17
10.3 Payments Received by Seller................................. 17
10.4 Communications Received by Seller........................... 17
11. INDEMNIFICATION................................................... 18
11.1 Survival of Representations and Warranties.................. 18
11.2 Indemnification of Purchaser by Seller...................... 18
11.3 Matters Involving Third Parties............................. 18
11.4 Indemnification Sole Remedy................................. 19
11.5 Certain Limitations......................................... 20
12. GENERAL PROVISIONS................................................ 20
12.1 Notices..................................................... 20
12.2 Integration: Amendment...................................... 21
12.3 Waiver...................................................... 21
12.4 Binding Effect of Agreement................................. 21
12.5 Headings.................................................... 22
12.6 Counterparts................................................ 22
12.7 Public Announcements........................................ 22
12.8 Governing Law............................................... 22
12.9 SUBMISSION TO JURISDICTION.................................. 22
12.10 JURY TRIAL.................................................. 22
12.11 Delays...................................................... 22
12.12 Severability................................................ 22
SIGNATURE PAGE ......................................................... 22
EXHIBITS
EXHIBIT 7.9 Form of Opinion of Counsel
EXHIBIT 7.14 Form of Seller Hersant Guaranty
EXHIBIT 7.15 Form of Seller Principal Guaranty
EXHIBIT 7.17 Form of Seller Interest Guaranty
EXHIBIT 7.19 Form of Rockwell Guaranty
EXHIBIT 9.2(a) Form of ▇▇▇▇ of Sale
EXHIBIT 10.2 Form of Notice of Assignment
iii
SCHEDULES
SCHEDULE 2.1(a) Purchased Loans
SCHEDULE 2.1(b) Purchased Equipment
SCHEDULE 3.6 Litigation Involving Purchased Assets
SCHEDULE 3.8 Liens
SCHEDULE 3.9 Setoffs and Defenses
SCHEDULE 3.14 Purchased Loans Performance Exceptions
SCHEDULE 3.15 Purchased Loan Defaults
SCHEDULE 3.16 Purchased Loan Disputes
iv
LOAN PORTFOLIO PURCHASE AGREEMENT
This Loan Portfolio Purchase Agreement ("Agreement") is made and
entered into as of October __ , 1996, by and between BT Commercial Corporation,
a Delaware corporation ("Purchaser"), and ▇▇▇▇ Graphic Systems, Inc., a Delaware
corporation ("Seller").
Recitals
WHEREAS, in connection with the sale of the stock and/or assets of the
Rockwell Graphic Systems business unit ("RGS") of Rockwell International
Corporation, a Delaware corporation ("Rockwell"), to Seller, Seller wishes to
effect a sale of a portfolio of loans of RGS, and associated instruments,
agreements, documents and collateral, all as more particularly described below,
arising from the sale of printing and like equipment in the conduct of RGS'
business.
WHEREAS, Seller desires to sell and Purchaser desires to purchase such
loans and certain other related assets of Seller.
WHEREAS, Purchaser, Seller and Rockwell desire to effect such purchase
and such sale on the terms and subject to the conditions contained herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
the adequacy of which are hereby acknowledged, Purchaser and Seller hereby agree
as follows:
1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"Agreement" has the meaning assigned in the introductory
paragraph hereto.
"Closing" shall mean the consummation and effectiveness of the
purchase and sale of the Purchased Assets upon satisfaction of the conditions
set forth in Section 9 of this Agreement.
"Commitment Letter" has the meaning assigned in Section 5.7 of
this Agreement.
"Damages" has the meaning assigned in Section 11.2 of this
Agreement.
"GAAP" means generally accepted accounting principles in the
United States as in effect from time to time.
"Hersant Affiliates" means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, the estate of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ and any other successors, assigns or heirs of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Socpresse,
S.A., Serpo, Presse Ocean, and any affiliates of any of the foregoing.
"Hersant Loans" has the meaning assigned in Section 7.14 of this
Agreement.
"Indemnified Party" has the meaning assigned in Section 11.2 of
this Agreement.
"Indemnifying Party" has the meaning assigned in Section 11.3(a)
of this Agreement.
"Liability" has the meaning assigned in Section 2.3 of this
Agreement.
"Maintenance Services" has the meaning assigned in the Service
and Remarketing Agreement.
"Non-Performing Purchased Loans" means those Purchased Loans
reflected as such on the Records as maintained by RGS; i.e. those Purchased
Loans as to which any payment of principal, interest or other amounts payable
with respect thereto by the obligors is 90 days or more past due.
"NYDN Agreement" means the Sales and Purchase Agreement pursuant
to which the NYDN Loans were created.
"NYDN Interest" has the meaning assigned in Section 7.17 of this
Agreement.
"NYDN Loan" means the Purchased Loan the obligor with respect to
which is Daily News, L.P.
"NYDN Termination Date" means the earlier of (I) the occurrence
of Completion (as defined in the NYDN Agreement) on or before April 15, 1997 (as
the same may be extended due to Force Majeure (as defined in the NYDN
Agreement)), or (II) June 30, 1997.
2
"Portugal Equipment" has the meaning assigned in Section 5.6 of
this Agreement.
"Portugal Put Price" has the meaning assigned in Section 5.6 of
this Agreement.
"Portugal Put Right" has the meaning assigned in Section 5.6 of
this Agreement.
"Portugal Loans" has the meaning assigned in Section 5.6 of this
Agreement.
"Purchase Price" has the meaning assigned in Section 2.2 of this
Agreement.
"Purchased Assets" has the meaning assigned in Section 2.1 of
this Agreement.
"Purchased Loans" has the meaning assigned in Section 2.1(a) of
this Agreement.
"Purchased Equipment" has the meaning assigned in Section 2.1(b)
of this Agreement.
"Purchaser" has the meaning assigned in the introductory
paragraph hereto.
"Records" has the meaning assigned in Section 2.1(d) of this
Agreement.
"Remarketing Services" has the meaning assigned in the Service
and Remarketing Agreement.
"RGS" has the meaning assigned in the recitals to this Agreement.
"Rockwell" has the meaning assigned in the introductory paragraph
hereto.
"Rockwell Agreement" means that certain Agreement Regarding Loan
Portfolio, dated as of even date herewith, entered into between Purchaser and
Rockwell.
"Rockwell Guaranty" has the meaning assigned in Section 7.19 of
this Agreement.
3
"Seller" has the meaning assigned in the introductory paragraph
hereto.
"Seller Hersant Guaranty" has the meaning assigned in Section
7.14 of this Agreement.
"Seller Interest Guaranty" has the meaning assigned in Section
7.17 of this Agreement.
"Seller Interest Letter of Credit" has the meaning assigned in
Section 7.18 of this Agreement.
"Seller Principal Guaranty" has the meaning assigned in Section
7.15 of this Agreement.
"Seller Principal Letter of Credit" has the meaning assigned in
Section 7.16 of this Agreement.
"Service and Remarketing Agreement" has the meaning assigned in
Section 7.13 of this Agreement.
"Sunny" has the meaning assigned in Section 7.15 of this
Agreement.
"Sunny Interest" has the meaning assigned in Section 7.17 of this
Agreement.
"Sunny Loans" has the meaning assigned in Section 7.15 of this
Agreement.
"Third Party Claim" has the meaning assigned in Section 11.3(a)
of this Agreement.
1.2 Accounting Terms and Determinations. Unless otherwise defined or
specified herein, all accounting terms used in this Agreement shall be construed
in accordance with GAAP, applied on a consistent basis in all material respects.
1.3 Other Terms. Each of the words "hereof," "herein," and
"hereunder" refer to this Agreement as a whole. References to Sections,
Schedules and Exhibits are internal references to this Agreement and to its
attachments, unless otherwise specified.
2. PURCHASE AND SALE OF ASSETS
4
2.1 Agreement to Sell and Purchase. On the terms and subject to the
conditions contained herein, Seller shall sell, transfer, convey, assign and
deliver to Purchaser, and Purchaser shall purchase, at the Closing, the
following assets of Seller (collectively, the "Purchased Assets"), it being the
intention of Seller and Purchaser that Purchaser acquire the Purchased Assets
and all incidents of ownership, subject to the terms of this Agreement:
(a) Purchased Loans. All of the loans, purchase contracts, sales
contracts, and associated guaranties, instruments, agreements and
documents (but excluding any currency hedge agreements, interest rate
swap agreements or like contracts or agreements, including, without
limitation, the currency hedge agreements entered into by RGS or
Rockwell in connection with the loan transactions the obligors with
respect to which are any of the Hersant Affiliates) arising from the
sale of printing and like equipment and outstanding as of February 29,
1996, together with such additional loans entered into by RGS with the
prior consent of Purchaser from March 1, 1996 through and including
the close of business on the day preceding the Closing, and together
with all rights to accrued interest (irrespective of when accrued),
all as listed, or respecting the transactions referenced, on Schedule
2.1(a) (collectively, the "Purchased Loans");
(b) Equipment. All right, title and interest of Seller in and to
the equipment the sale of which was financed by Purchased Loans and/or
is collateral security for Purchased Loans, together with all other
collateral security for the Purchased Loans, and together with all
equipment and other collateral security acquired or repossessed by or
on behalf of Rockwell or RGS between March 1, 1996 and the Closing and
owned or held by Seller at the Closing, and together with the computer
hardware employed by RGS in the administration of the Purchased Loans
prior to the Closing, all as described on Schedule 2.1(b)
(collectively, the "Purchased Equipment");
(c) Other Intangible Personal Property. All other intangible
personal property of Seller respecting or associated with the
Purchased Loans or the Purchased Equipment, including, without
limitation, choses in action, claims, judgments, and other rights
against all obligors, including guarantors and other third parties,
obligated under or with respect to any of the Purchased Loans, and
RGS' and Seller's rights as licensees with respect to the computer
software employed by RGS prior to the Closing in the administration of
the Purchased Loans; and
(d) Records. All books, correspondence, files, lists, records,
reports, studies and other printed, written, electronic or other
materials and information of Seller solely relating to or constituting
material information respecting the Purchased Assets ("Records").
5
2.2 Purchase Price. In consideration of the sale, transfer,
conveyance, assignment and delivery of the Purchased Assets by Seller to
Purchaser, Purchaser shall pay Seller the amount (the "Purchase Price")
calculated as:
(a) $163,682,460 (or such other amount as may be mutually agreed
upon by Rockwell, Seller and Purchaser to take into account any
increases or decreases in the principal amount of any Purchased Loan
effected through a restructuring of such Purchased Loan by RGS between
March 1, 1996 and the Closing (other than the restructuring of the
Purchased Loans the obligor with respect to which is ▇▇▇▇, Inc.), and
any of such restructuring shall be effected only with the prior
consent of Purchaser; plus
(b) the principal amount of all additional loans entered into
with the prior consent of Purchaser from March 1, 1996 through and
including the close of business on the day preceding the Closing; plus
(c) the amount of all accrued and unpaid interest exclusive of
accrued interest on any of the Non-Performing Purchased Loans; minus
(d) all reductions in the aggregate unpaid principal balance of
the Purchased Loans from March 1, 1996 through and including the
Closing, whether resulting from the receipt of regularly scheduled
installments of principal on the Purchased Loans, partial installments
of principal on the Purchased Loans or partial or full prepayment
(whether the prepayment is the result of the liquidation of the
collateral securing the Purchased Loans or otherwise).
The Purchase Price shall be calculated as of the close of business on the
business day immediately preceding the Closing.
2.3 No Assumption of Liabilities. Purchaser is not assuming any
Liability (as hereinafter defined) of Seller other than the obligation of Seller
under the loan documents relating to the Purchased Loans to respect the right of
the obligors thereunder to quiet enjoyment of the printing equipment the
acquisition of which was financed by the Purchased Loans.
As used herein, the term "Liability" means any liability (whether
known or unknown, whether or nor asserted, whether absolute or contingent,
whether accrued or unaccrued, whether liquidated or unliquidated and whether due
or to become due).
3. REPRESENTATIONS AND WARRANTIES BY SELLER. Seller represents and
warrants to Purchaser as follows:
6
3.1 Organization, Standing and Qualification. Seller is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware. Seller is not required to be qualified as a foreign
corporation in any state where the failure to be so qualified would individually
or in the aggregate have a material adverse effect on the financial condition,
results of operations or business of Seller.
3.2 Power and Authority to Conduct Business. Seller has all requisite
corporate power and authority, and is entitled, to conduct its business and to
own and to lease its assets.
3.3 Execution, Delivery and Performance of Agreement. None of the
execution, the delivery and the performance of this Agreement by Seller will,
with or without the giving of notice or the passage of time, or both, conflict
with, result in a default, right to accelerate or loss of rights under, or
result in the creation of any claim, lien or encumbrance pursuant to, (a) the
certificate of incorporation or the bylaws of Seller, (b) any agreement to which
the Seller is a party or by which the Seller or, to Seller's knowledge, any of
the Purchased Assets are bound, (c) any law or any regulation by which the
Seller or, to Seller's knowledge, any of the Purchased Assets are bound, (d) any
decree, injunction, judgment or order by which the Seller or, to Seller's
knowledge, any of the Purchased Assets are bound, or (e) any other governmental
restriction by which Seller or, to Seller's knowledge, the Purchased Assets are
bound, except for such violations, conflicts, breaches, defaults, claims, liens,
or encumbrances which individually or in the aggregate would not reasonably be
likely to materially and adversely affect the Purchased Assets or the
Purchaser's rights and benefits with respect thereto. Seller is not required to
provide any notice to, or make any filing with, or to obtain the approval or the
consent of any government or any governmental agency with respect to the
Seller's execution, delivery and performance of this Agreement and the other
agreements, instruments and transactions contemplated hereby.
3.4 Authority; Right to Sell Purchased Loans. Seller has the full
right, power and authority to execute and to deliver this Agreement and to
perform its obligations hereunder and all corporate proceedings required to be
taken to duly authorize the execution, delivery and performance of this
Agreement by Seller have been or will be properly taken.
3.5 Valid and Binding Obligation. Each of this Agreement and the
other documents to be executed and delivered by Seller in connection herewith
constitutes the valid and binding obligation of Seller, enforceable against
Seller in accordance with its respective terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws, now or hereafter in effect, relating to or affecting the
enforcement of creditors' rights generally, and except that the remedy of
specific performance and other equitable remedies are subject to judicial
discretion.
3.6 Litigation. To Seller's knowledge, except as set forth on
Schedule 3.6, there is no action or proceeding relating to the Purchased Assets
or the transactions
7
contemplated by this Agreement which would individually or in the aggregate be
reasonably likely to materially and adversely affect the Purchased Assets or the
Purchaser's rights and benefits with respect thereto.
3.7 Title to Properties. Seller has good and marketable title to all
of the Purchased Assets, except for such defects which, individually or in the
aggregate, would not reasonably be likely to materially and adversely affect the
Purchased Assets or the Purchaser's rights and benefits with respect thereto.
The instruments and the documents relating to the Purchased Loans were purchased
by Seller from Rockwell and RGS. To Seller's knowledge, each of the Purchased
Loans is valid, genuine, and enforceable in accordance with its terms against
the obligor thereunder, bears the authentic signature of the obligor thereunder,
and is in the possession of Seller or Seller's bailee. Upon consummation of the
transactions contemplated hereby, none of the Purchased Assets will be subject
to any claim, lien or encumbrance and Purchaser will acquire all of the right,
title and interest of Seller in and to the Purchased Loans, except for such
claims, liens or encumbrances which, individually or in the aggregate, would not
reasonably be likely to materially and adversely affect the Purchased Assets or
the Purchaser's rights and benefits with respect thereto.
3.8 Lien Priority. To Seller's knowledge, except as set forth on
Schedule 3.8, the security interest and lien securing each Purchased Loan is a
valid and subsisting first lien on the collateral described in the associated
loan documents and such collateral security is free and clear of all
encumbrances and liens having priority over the first lien and security interest
securing such Purchased Loan.
3.9 No Setoffs or Defenses. To Seller's knowledge, except as set
forth on Schedule 3.9, none of the Purchased Loans is subject to any right of
rescission, setoff, counterclaim or defense, and no such right of rescission,
setoff, counterclaim or defense has been asserted with respect thereto.
3.10 Insurance. To Seller's knowledge, the collateral security for
each Purchased Loan is insured against loss and damage by fire and such other
hazards as is customary and prudent based upon industry standard practices. To
Seller's knowledge, RGS and its successors and assigns are named as loss-payees
under a lender's form loss-payable endorsement under each such policy of
insurance.
3.11 Records. To Seller's knowledge, the Records accurately and
completely reflect in all material respects the documents relating to each
Purchased Loan, including the complete and accurate locations and descriptions
of the Purchased Equipment and any notices, amendments and defaults. To Seller's
knowledge, the principal balances, accrued and unpaid interest, and the current
and future payment obligations of obligors under the Purchased Loans are
accurately reflected in the Records. To Seller's knowledge, except as reflected
in the Records relating to the Purchased Loans, none of the Purchased Loans has
been altered, amended, modified or terminated.
8
3.12 Accounting for Purchased Loans. To Seller's knowledge, the
Records accurately and completely reflect in all material respects the payment
history and present balances of unpaid principal and interest receivable as to
each Purchased Loan.
3.13 Purchased Loans - Compliance with Applicable Law. To Seller's
knowledge, none of the Purchased Loans constitutes a consumer credit or a
consumer loan within the meaning of the federal Truth-in-Lending Act or any
state consumer credit statute or regulation and, to Seller's knowledge, all of
the Purchased Loans were made in compliance in all material respects with all
applicable federal, state, local, and foreign laws and regulations.
3.14 Purchased Loans - Performance by Rockwell and RGS. To Seller's
knowledge, except as set forth on Schedule 3.14, Rockwell and RGS have timely
and fully performed all of their obligations in connection with the Purchased
Loans. To Seller's knowledge, all costs, expenses and fees incurred in making,
creating, filing and/or recording the Purchased Loans have been paid.
3.15 Purchased Loans - Absence of Defaults. To Seller's knowledge,
except as set forth in Schedule 3.15, no payment defaults have occurred with
respect to any Purchased Loan.
3.16 Purchased Loans - Absence of Disputes. To Seller's knowledge,
except as set forth in Schedule 3.16, none of the obligors on the Purchased
Loans have notified Rockwell or RGS of any disputes with respect to any of the
Purchased Loans, including, without limitation, any claim of offset or defense
to its obligations and such Purchased Loan. To Seller's knowledge, except as set
forth in Schedule 3.16, Seller has no knowledge of any event which could result
in such a dispute.
3.17 Payment and Disclosure of all Excise, Use, Sales and Other Taxes.
To Seller's knowledge, all excise, use, sales and other taxes, charges, fees and
the like obligations respecting the Purchased Assets have been paid through the
Closing and Seller has delivered or caused to be delivered to Purchaser an
accounting of all such items, including a list of all such items as are payable
on a recurring basis and will be payable after the Closing.
3.18 Bulk Sales. The transactions contemplated by this Agreement are
not subject to compliance with the bulk sales provisions of the Uniform
Commercial Code as in effect in any jurisdiction.
3.19 Disclosure. No representation or warranty by Seller contained
herein nor information furnished or to be furnished by Seller in connection
herewith contains or will contain any untrue statement of a material fact or
omits or will omit to state any material fact necessary in order to make the
statements contained therein not materially misleading in light of the
circumstances under which such statements were made. The foregoing
representation
9
and warranty set forth in this Section 3.19 is qualified as made to the Seller's
knowledge to the extent, but only to the extent, that the representations and
warranties set forth in this Agreement are expressly qualified as being made
subject to the Seller's knowledge.
4. REPRESENTATIONS AND WARRANTIES BY PURCHASER. Purchaser represents and
warrants to Seller and Rockwell as follows:
4.1 Organization, Standing and Qualification. Purchaser is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and is duly qualified as a foreign corporation under
the laws of the State of California.
4.2 Execution, Delivery and Performance of Agreement. None of the
execution, the delivery and the performance of this Agreement by Purchaser will
conflict with, result in a default, right to accelerate or loss of rights under,
or result in the creation of any claim, any lien or any encumbrance pursuant to,
(a) the certificate of incorporation or the bylaws of Purchaser, (b) any
agreement to which the Purchaser is a party or by which the Purchaser is bound,
(c) any law or any regulation by which the Purchaser is bound, (d) any decree,
injunction, judgment or order by which the Purchaser is bound, or (e) any other
governmental restriction by which Purchaser is bound. Purchaser is not required
to provide any notice to, or make any filing with, or to obtain the approval or
the consent of any government or any governmental agency with respect to the
Purchaser's execution, delivery and performance of this Agreement and the other
agreements, instruments and transactions contemplated hereby.
4.3 Authority. Purchaser has the full power and authority to execute
and deliver this Agreement and to perform its obligations hereunder and all
corporate proceedings required to be taken to duly authorize the execution,
delivery and performance of this Agreement by Purchaser have been properly
taken.
4.4 Valid and Binding Obligation. Each of this Agreement and the
other documents to be executed and delivered by Purchaser in connection herewith
constitutes the valid and binding obligation of Purchaser, enforceable against
Purchaser in accordance with its respective terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws, now or hereafter in effect, relating to or affecting the
enforcement of creditors' rights generally, and except that the remedy of
specific performance and other equitable remedies are subject to judicial
discretion.
5. COVENANTS OF SELLER. Seller covenants and agrees as follows:
5.1 General. Seller shall take all such actions and do all things as
may be reasonably appropriate or advisable: (i) to assure that the
representations and the warranties of Seller set forth herein will be accurate
and complete as of the Closing and that all
10
covenants and conditions precedent of Seller set forth in this Agreement
which are required to be performed by it at or prior to the Closing shall have
been performed at or prior to the Closing as provided in this Agreement; and
(ii) to consummate and make effective the transactions contemplated by this
Agreement.
5.2 Conduct in Ordinary Course. Seller shall confirm that prior to
the Closing, Rockwell and RGS: (a) conduct the business of RGS only in the
ordinary course of business and consistent with prior custom and practice and
shall not make any loan without the prior consent of Purchaser; (b) keep
available to Purchaser the services of the officers, the employees and the
agents of RGS reasonably necessary to effect the transactions contemplated
hereby; and (c) use reasonable efforts to cooperate with Purchaser and assist
Purchaser in obtaining the consent of any party where the consent of such party
is deemed necessary by Purchaser by reason of the transactions contemplated
hereby.
5.3 Notice of Change. Seller, upon obtaining actual knowledge, shall
provide Purchaser prompt written notice of any material change in any of the
information contained in any representation and any warranty by Seller hereunder
which occurs prior to the Closing.
5.4 Access to Information and Documents. Upon reasonable notice and
during regular business hours, Seller will give Purchaser and its
representatives full access to its personnel and all Records, any other books
and records relating to any of the Purchased Assets, and such other information
with respect to the Purchased Assets as Purchaser may from time to time
reasonably request, other than items withheld because of terms of
confidentiality agreements; provided, however, that access to such books,
records, documents and other information shall not unreasonably interfere with
the normal operations of Seller and its subsidiaries and affiliates.
5.5 Corporate Resolutions. At or prior to the Closing, Seller will
deliver to Purchaser a copy of the corporate resolutions of Seller approving the
execution and the delivery of this Agreement and the consummation of all of the
transactions contemplated hereby, duly certified by an officer of Seller.
5.6 Put Right. Seller hereby agrees that with respect to the
Purchased Equipment (the "Portugal Equipment") securing the Purchased Loans the
obligor with respect to which is Mirandela Artes Grafias S.A. (the "Portugal
Loans"), Purchaser may, after foreclosure upon the Portugal Equipment by
Purchaser at any time after the Closing and after ten (10) days prior written
notice by Purchaser to Seller, put to Seller for purchase by Seller (the
"Portugal Put Right") the Portugal Equipment for a purchase price equal to
$4,000,000 (the "Portugal Put Price"). Seller shall then have the right to sell
and otherwise remarket the Portugal Equipment, and in any event shall pay to
Purchaser in immediately available funds the full amount of the Portugal Put
Price on the earlier of (i) the sale or other remarketing of the Portugal
Equipment or any portion thereof, and (ii) the first anniversary of the exercise
by Purchaser of the Portugal Put Right irrespective of whether Seller has
succeeded in selling
11
or remarketing the Portugal Equipment. In connection with the exercise of the
Portugal Put Right, Purchaser shall execute and deliver to Seller such bills of
sale, assignments and other sale and conveyancing instruments as Seller may
reasonably request to effect the transfer of title to Seller of the Portugal
Equipment.
5.7 Costs and Expenses. At or prior to the Closing, Seller shall
reimburse Purchaser for all reasonable costs and expenses including, without
limitation, (i) the fees, disbursements and other reasonable charges of
attorneys and paralegals, (ii) reasonable out-of-pocket expenses of Purchaser's
personnel, (iii) other legal, appraisal, valuation, title, audit, consulting,
search and filing fees, all as incurred by Purchaser or any of its affiliates in
connection with (x) the negotiation, preparation, review, execution, delivery,
collection and enforcement of the commitment letter and the term sheet dated
April 29, 1996 issued by Purchaser with reference hereto (the "Commitment
Letter"), the Service and Remarketing Agreement, and this Agreement, and (y) the
completion of Purchaser's verification of the existence of the Purchased
Equipment securing the Purchased Loans.
5.8 NYDN Purchase Agreement. Seller agrees that from and after the
Closing, the NYDN Agreement and the related agreements, to the extent Seller has
assumed or otherwise become obligated or entitled to rights and benefits
thereunder, shall not be amended or modified in any respect material to the
rights, benefits and obligations, including contingent rights and liabilities,
of Purchaser without Purchaser's prior written consent.
6. COVENANTS OF PURCHASER. Purchaser covenants and agrees as follows:
6.1 General. Purchaser shall take all such actions and do all things
as may be reasonably appropriate or desirable: (i) to assure that the
representations and the warranties of Purchaser set forth herein will be
accurate and complete as of the Closing and that all covenants of Purchaser set
forth in this Agreement which are required to be performed by it at or prior to
the Closing shall have been performed at or prior to the Closing as provided in
this Agreement; and (ii) to consummate and make effective the transactions
contemplated by this Agreement.
6.2 Notice of Change. Purchaser, upon obtaining actual knowledge,
shall provide Seller and Rockwell prompt written notice of any material change
in any of the information contained in any representation and any warranty of
Purchaser contained herein which occurs prior to the Closing.
6.3 Corporate Resolutions. At or prior to the Closing, Purchaser will
deliver to Seller a copy of the corporate resolutions of Purchaser approving the
execution and the delivery of this Agreement and the consummation of all of the
transactions contemplated hereby, duly certified by an officer of ▇▇▇▇▇▇▇▇▇.
▇▇
▇. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF PURCHASER. The obligation of
Purchaser hereunder to purchase the Purchased Assets is subject to the
fulfillment of each of the following conditions at or prior to the Closing:
7.1 Representations and Warranties. All representations and all
warranties of Seller herein, of Rockwell under the Rockwell Agreement, or of
Seller or Rockwell in any document executed and delivered in connection herewith
or therewith shall be accurate and correct in all material respects on and as of
the Closing with the same force and effect as though all such representations
and warranties had been made on and as of such date, except (i) to the extent
such representations and warranties are by their express provisions made as of a
specific date, which need be true and correct only as of such date, and (ii) for
the effect of any activities or transactions which are contemplated by this
Agreement or the Rockwell Agreement.
7.2 Covenants. All covenants and all other obligations required by
this Agreement or the Rockwell Agreement to be performed by Seller or Rockwell
at or before the Closing shall have been duly and properly performed in all
material respects.
7.3 Closing Date. The Closing shall have occurred on or before
October 15, 1996.
7.4 No Material Adverse Change. There shall not have occurred a
change, which the Purchaser reasonably believes to be material and adverse, in
the financial condition or performance of the Purchased Assets from March 1,
1996 to the Closing.
7.5 Absence of Changes or Events. Since February 29, 1996, the
business of RGS shall have been conducted only in the ordinary course of
business and in accordance with prior custom and practice and RGS shall not have
instituted, settled or agreed to settle any action or any proceeding before any
court or governmental agency relating in any material respect to the Purchased
Assets.
7.6 No Market Impairment. There shall not have occurred a substantial
impairment of the financial markets generally, which in the reasonable opinion
of Purchaser, has materially and adversely affected the funding of the purchase
of the Purchased Assets.
7.7 Terms of Transactions. The terms, conditions and structure of all
aspects of the Sale and of the sale by Rockwell to Seller of the stock and
assets of RGS shall be as in effect as of August 8, 1996, or, if amended,
supplemented or otherwise modified, as are reasonably satisfactory to Purchaser
and its counsel.
7.8 Delivery of Documents. Seller and Rockwell shall have executed
and delivered, or caused to be executed and delivered, to Purchaser this
Agreement, the Rockwell Agreement, the Service and Remarketing Agreement, the
Seller Principal Guaranty, the Seller Interest Guaranty, the Seller Hersant
Guaranty, the Seller Principal Letter of Credit, the
13
Seller Interest Letter of Credit, the Rockwell Guaranty, an agreement between
Purchaser and Seller as to employment of mutually acceptable personnel with
respect to the administration of the Purchased Assets, and the other documents,
instruments and agreements contemplated hereby, each in form and substance
reasonably acceptable to Purchaser.
7.9 Opinion of Counsel. Purchaser shall have received an opinion of
Seller's counsel, dated the date of the Closing substantially in the form of
Exhibit 7.9.
7.10 Consents. All government and third party consents, filings,
and/or approvals necessary or advisable for the transactions contemplated hereby
shall have been received.
7.11 Litigation. There shall be no pending litigation, proceeding,
inquiry or other action which would be reasonably likely to result in an
injunction or other restraining order, material damages or other relief with
respect to the transactions contemplated hereby.
7.12 Due Diligence Investigation. Purchaser shall have completed its
verification of the existence of substantially all of the Purchased Equipment
securing the Purchased Loans and shall have been provided access, on the same
basis provided up to August 7, 1996, to all books, records and other information
respecting the Purchased Assets as the Purchaser deems necessary, including any
books, records and other information which is the subject of confidentiality
agreements.
7.13 Service and Remarketing Agreement. Seller and Purchaser shall
enter into an agreement (the "Service and Remarketing Agreement") providing for
warranty, maintenance and repair services and remarketing assistance with
respect to the Purchased Equipment securing the Purchased Loans and indemnifying
Purchaser against damages and claims arising from the use, operation or
ownership of the Equipment by the end-users thereof, or arising from the mere
nominal ownership of the Purchased Equipment by Purchaser, all on terms
reasonably acceptable to Purchaser and Seller.
7.14 Seller Hersant Guaranty. Seller shall have executed and
delivered to Purchaser a guaranty (the "Seller Hersant Guaranty") respecting the
Purchased Loans the obligors with respect to which are any of the Hersant
Affiliates (the "Hersant Loans") substantially identical in form and substance
to Exhibit 7.14.
7.15 Seller Principal Guaranty. Purchaser shall have received a
guaranty (the "Seller Principal Guaranty") executed and delivered by Seller
guaranteeing a portion of the principal balance of the Purchased Loans the
obligor with respect to which is Sunny Industries, Inc. ("Sunny") (the "Sunny
Loans") substantially identical in form and substance to Exhibit 7.15.
7.16 Seller Principal Letter of Credit. Purchaser shall have received
a letter of credit (the "Seller Principal Letter of Credit") for the account of
Seller and for the benefit
14
of Purchaser, securing the Seller Principal Guaranty, issued by a bank
reasonably satisfactory to Purchaser and in form and substance reasonably
satisfactory to Purchaser.
7.17 Seller Interest Guaranty. Purchaser shall have received a
guaranty (the "Seller Interest Guaranty") executed and delivered by Seller
guaranteeing the payment of interest, accrued after the Closing, on the Sunny
Loans (the "Sunny Interest") and one half (1/2) of the interest, accrued after
the Closing on the NYDN Loans (the "NYDN Interest") substantially identical in
form and substance to Exhibit 7.17.
7.18 Seller Interest Letter of Credit. Purchaser shall have received
a letter of credit (the "Seller Interest Letter of Credit") issued for the
account of Seller and for the benefit of Purchaser, in an amount mutually
acceptable to Seller and Purchaser, issued by a bank reasonably satisfactory to
Purchaser and otherwise in form and substance reasonably satisfactory to
Purchaser, securing the obligations of Seller under the Seller Interest Guaranty
with respect to and to the extent of the NYDN Interest.
7.19 Rockwell Guaranty. Rockwell shall have executed and delivered to
Purchaser a guaranty (the "Rockwell Guaranty") of one-half (1/2) of the
regularly scheduled unpaid interest on the NYDN Loan which both accrued and is
payable to Purchaser during the period commencing on the Closing and ending on
the NYDN Termination Date substantially identical in form and substance to
Exhibit 7.19.
7.20 Payment of Fees and Expenses. Purchaser shall have received
payment in full of all fees and reimbursable expenses payable to Purchaser by
the Seller on or prior to the Closing.
7.21 Consummation of Acquisition of RGS. The acquisition by Seller of
the stock and/or assets of RGS shall have been consummated or shall be
consummated on a substantially contemporaneous basis.
8. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLER. The obligation of
Seller to sell to Purchaser the Purchased Assets is subject to the fulfillment
of each of the following conditions at or prior to the Closing:
8.1 Representations and Warranties. All representations and all
warranties of Purchaser herein or in any document executed and delivered in
connection herewith shall be accurate and correct in all material respects on
and as of the Closing with the same force and effect as though all such
representations and warranties had been made on and as of such date, except (i)
to the extent such representations and warranties are by their express
provisions made as of a specific date, which need be true and correct only as of
such date, and (ii) for the effect of any activities or transactions which are
contemplated by this Agreement.
15
8.2 Covenants. All covenants and all other obligations required by
this Agreement to be performed by Purchaser at or before the Closing shall have
been duly and properly performed in all material respects.
8.3 Litigation. There shall be no pending litigation, proceeding,
inquiry or other action which would be reasonably likely to result in an
injunction or other restraining order, material damages or other relief with
respect to the transactions contemplated hereby.
8.4 Consents. All government and third party consents, filings,
and/or approvals necessary or advisable for the transactions contemplated hereby
shall have been received.
8.5 Consummation of Acquisition of RGS. The acquisition by Seller of
the stock and/or assets of RGS shall have been consummated or shall be
consummated on a substantially contemporaneous basis.
9. CLOSING.
9.1 Closing; Closing Date. The Closing shall take place
contemporaneously with and at the location of the closing of the acquisition by
Seller of the stock and/or assets of RGS or on such other date, at such other
time and at such other place as Seller and Purchaser may agree.
9.2 Deliveries by Seller at Closing. At the Closing, Seller and RGS
will deliver to Purchaser:
(a) ▇▇▇▇ of Sale. A ▇▇▇▇ of Sale duly executed by Seller
substantially in the form of Exhibit 9.2(a).
(b) Other Transfer Documents. Such other documents and
instruments, including, without limitation, Uniform Commercial Code
Financing Statement Assignments executed by Seller and RGS respecting the
collateral security for the Purchased Loans, assignments, and endorsements,
all in form and in substance reasonably satisfactory to Purchaser, and all
as may be reasonably requested by Purchaser to vest in Purchaser good and
marketable title to the Purchased Assets.
(c) Records. All Records with respect to the Purchased Assets,
delivered to the offices of Purchaser and/or to designee(s) of Purchaser,
together with a report, current as of the Closing, respecting all
Non-Performing Purchased Loans; provided that such condition as to delivery
of the Records may be satisfied by Seller if: (i) it causes to be so
delivered to Purchaser the executed originals of such of the Records as
constitute chattel paper and the originals of the UCC filings, other lien
filings, guaranties and similar instruments material to the value or
enforcement of the
16
subject Purchased Loans; (ii) all of the remaining Records are delivered to
Purchaser within five (5) business days following the Closing; and (iii)
Rockwell shall have agreed in writing to provide Purchaser with reasonable
access during such five (5) business day period to the premises at which
are located such remaining Records.
(d) Letter Directing Rockwell. A letter of direction,
acknowledged and agreed to by Rockwell, directing Rockwell to cooperate
with Purchaser in the same manner Seller undertakes to cooperate with
Purchaser subsequent to the Closing pursuant to Sections 10.1 - 10.3
hereof.
(e) Notices to Debtors. A notice of assignment, executed by ▇▇▇▇
(as the successor to RGS) and Rockwell jointly, notifying each debtor
of the assignment of its Purchased Loan to Purchaser. Such notice shall be
in the form of Exhibit 9.2(e).
(f) Other Required Documents. All other documents, instruments
and agreements required to be delivered by Seller to Purchaser hereunder.
9.3 Purchaser's Deliveries at Closing. At the Closing, Purchaser
shall deliver to Seller:
(a) Payment. The payment required by Section 2.2 in immediately
available funds by wire transfer to an account specified by Seller.
(b) Other Required Documents. All documents, instruments and
agreements required to be delivered by Purchaser to Seller hereunder.
10. ADDITIONAL COMMITMENTS.
10.1 General. At any time and from time to time after the Closing,
Seller shall execute and deliver such other documents and take such action as
Purchaser may reasonably request to more effectively transfer, convey and assign
to Purchaser, and to confirm Purchaser's title to, all of the Purchased Assets,
to put Purchaser in actual possession and control thereof and to assist
Purchaser in exercising all rights with respect thereto. Seller shall refer all
inquiries relating to the Purchased Assets to Purchaser.
10.2 Payments Received by Seller. To the extent that, after the date
of Closing, Seller receives any payment with respect to any Purchased Loan, such
payment shall be held in trust for Purchaser, shall be kept separate from any
other funds, and such payment shall be delivered to Purchaser in the form
received duly endorsed to Purchaser.
17
10.3 Communications Received by Seller To the extent that, after the
date of Closing, Seller receives correspondence or other communication with
respect to any Purchased Loan, it shall be promptly forwarded to Purchaser.
10.4 Excise, Use and Sales Taxes. Seller shall pay all excise, use and
sales taxes payable with respect to the sale of the Purchased Assets to
Purchaser, which taxes shall be paid, collected, reported and remitted in
accordance with applicable law.
11. INDEMNIFICATION.
11.1 Survival of Representations and Warranties. Each representation,
warranty and covenant made by Purchaser or Seller shall survive the Closing and
continue in full force and effect thereafter for a period of eighteen (18)
months.
11.2 Indemnification of Purchaser by Seller. Seller shall indemnify
and hold harmless Purchaser, its affiliates, successors and assigns (each an
"Indemnified Party") from and against all losses, claims, damages, costs,
obligations and Liabilities, including Liabilities for all reasonable attorneys'
fees and expenses (including attorney and expert fees and expenses incurred to
enforce the terms of this Agreement) (collectively, "Damages") suffered,
directly or indirectly, by any Indemnified Party:
(a) by reason of, or arising out of, any breach of any
representation or warranty made by Seller in or pursuant to this Agreement
or the Service and Remarketing Agreement, or any failure by Seller to
perform or fulfill any of its covenants or agreements set forth herein or
therein; or
(b) a rising out of or relating to the Purchased Assets and
arising from events occurring prior to the Closing, and arising in
connection with the Commitment Letter, this Agreement, or any other
transaction contemplated hereby except for any such Damages caused by the
gross negligence or willful misconduct of such Indemnified Party; provided,
that the foregoing items as covered by this subsection (b) shall not
include any Damages covered by subsection (a) or any decline in value of
the Purchased Assets due to changes in applicable laws or regulations,
changes in GAAP or interpretations thereof or changes in economic
conditions generally including changes in market rates of interest, and
shall not include any losses arising from the failure of an obligor to make
payment under a Purchased Loan due primarily to the financial condition and
creditworthiness of such obligor.
Seller shall have no indemnification liability for the first Eight Hundred
Thousand Dollars ($800,000), in the aggregate, of Damages actually incurred by
Purchaser with respect to any claims pursuant to this Section 11.2, and such
Damages shall be the sole liability of Purchaser. At such time as the aggregate
amount of Damages actually incurred by Purchaser with respect to any claims
pursuant to this Section 11.2 exceeds in the aggregate Eight
18
Hundred Thousand Dollars ($800,000), then the full amount of such excess shall
be Seller's indemnification liability. Notwithstanding any other provisions of
this Agreement to the contrary, in no event shall Damages include a party's
consequential or incidental damages in excess of Twenty Five Million Dollars
($25,000,000).
11.3 Matters Involving Third Parties.
(a) Notice of Third Party Claim. If any third party shall notify
any Indemnified Party with respect to any matter (a "Third Party Claim") which
may give rise to a claim for indemnification against Seller ("Indemnifying
Party") under this Section 11 then the Indemnified Party shall promptly notify
each Indemnifying Party thereof in writing; provided, however, that a delay on
the part of the Indemnified Party in notifying any Indemnifying Party shall
relieve the Indemnifying Party of its obligation hereunder unless, and then
solely to the extent, the Indemnifying Party is thereby prejudiced.
(b) Defense of Third Party Claim. Any Indemnifying Party will
have the right to assume the defense of any claim or any litigation resulting
from a Third Party Claim with counsel of its choice reasonably satisfactory to
the Indemnified Party.
(c) Limitations on Defense. So long as the Indemnifying Party is
conducting the defense of the Third Party Claim in accordance with Section
11.3(b) above, (i) the Indemnified Party may retain separate co-counsel at its
sole cost and expense and participate in the defense of the Third Party Claim,
and (ii) the Indemnifying Party will not consent to the entry of any judgment or
enter into any settlement with respect to the Third Party Claim without the
prior written consent of the Indemnified Party, which consent shall not be
unreasonably withheld.
(d) Other Procedures. In the event that the Indemnified Party
shall in good faith determine that (i) the Indemnified Party may have available
to it one or more defenses or counterclaims that are inconsistent with one or
more of those that may be available to the Indemnifying Party in respect of the
Third Party Claim, or (ii) settlement of, or an adverse judgment with respect
to, the Third Party Claim is likely to establish a precedent or practice
materially adverse to the continuing business interests of the Indemnified
Party, then the Indemnified Party shall have the right to take over and assume
control of the defense, settlement, negotiations or litigation relating to any
such Third Party Claim, at the sole cost of the Indemnifying Party, and if the
Indemnified Party does so take over and assume control, the Indemnified Party
may settle such Third Party Claim with the consent of the Indemnifying Party if
such settlement would require the payment of Damages by the Indemnifying Party,
which consent shall not be unreasonably withheld. In the event that the
Indemnifying Party does not accept the defense of any matter as above provided,
the Indemnified Party shall have the full right to defend against any such Third
Party Claim, and shall be entitled to settle or agree to pay in full such Third
Party Claim, and the Indemnifying Party shall remain responsible for all Damages
and costs of defense and shall reimburse the Indemnified Party therefor promptly
and periodically. In any event, the Indemnifying Party
19
and the Indemnified Party shall cooperate in the defense of any claim or
litigation subject to this Section 11 and the records of each shall be available
to the other with respect to such defense.
11.4 Indemnification Sole Remedy. The foregoing indemnification
provisions shall be deemed to be the exclusive remedy of the Indemnified Party
in connection with or arising from any failure by the Indemnifying Party to
perform any of its covenants or obligations in this Agreement or in the
agreements related hereto or any breach by the Indemnifying Party of any
representation or warranty or the inaccuracy of any representation or warranty
of the Indemnifying Party contained in this Agreement.
11.5 Certain Limitations. The amount of any Damages or other
liability for which indemnification is provided under this Agreement shall be
net of any amounts recovered or, upon the exercise of reasonable best efforts,
recoverable by the Indemnified Party from third parties (including, without
limitation, amounts recovered or recoverable under insurance policies) with
respect to such Damages or other liability. Each Indemnified Party shall use its
reasonable best efforts to pursue promptly any claims or rights it may have
against all third parties which would reduce the amount of damages or other
liability for which indemnification is provided under this Agreement.
12. GENERAL PROVISIONS.
12.1 Notices. Except as otherwise provided herein, all notices and
correspondences hereunder shall be in writing and sent by certified or
registered mail, return receipt requested, or by overnight delivery service,
with all charges prepaid, to the addresses set forth below, or by facsimile
transmission, promptly confirmed in writing sent by first class mail, to the
telefacsimile numbers set forth below. All such notices and correspondence shall
be deemed given (i) if sent by certified or registered mail, three business days
after being postmarked, (ii) if sent by overnight delivery service, when
received at the above stated addresses or when delivery is refused and (iii) if
sent by telex or facsimile transmission, when receipt of such transmission is
acknowledged. Any party may specify such other address or telefacsimile number
by notice to all other parties given as provided in this Section 10.1.
If to Purchaser:
BT Commercial Corporation
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
20
with a copy to:
Buchalter, Nemer, Fields & Younger
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Seller:
▇▇▇▇ Graphic Systems, Inc.
c/o Stonington Partners, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
12.2 Integration: Amendment. This Agreement and the other documents
and agreements referred to herein constitute the entire agreement of Purchaser
and Seller with respect to the subject matter hereof. This Agreement may not be
modified, amended or terminated except by a written agreement specifically
referring to this Agreement signed by Purchaser and Seller.
12.3 Waiver. No waiver of any breach or default hereunder shall be
considered valid unless in writing and signed by the party giving such waiver,
and no such waiver shall be deemed a waiver of any subsequent breach or default
of the same or similar nature.
12.4 Binding Effect of Agreement. This Agreement shall be binding
upon and inure to the benefit of each party and its permitted successors and
assigns. Seller may not assign this Agreement or any of its rights hereunder
without the prior written consent of Purchaser, which consent may be withheld
for any reason. Purchaser may assign all or a portion of its rights hereunder
and under the associated agreements and instruments to purchase and/or own any
of the Purchased Assets to an affiliate, a special purpose entity formed for the
purpose of acquiring the Purchased Assets, in connection with a securitization
of the Purchased Assets or otherwise, or to any other designee, and Purchaser
may act as
21
agent in forming a syndicate to join with Purchaser in purchasing the Purchased
Assets or to invest in ownership of the Purchased Assets after the Closing.
Purchaser has assigned its rights to purchase certain of the Purchased Assets
relating to Purchased Equipment located in Canada to Purchaser's affiliate, BT
Bank of Canada, and Purchaser has assigned its rights to purchase certain of the
Purchased Assets relating to Purchased Equipment located in Australia to
Purchaser's affiliate, Bankers Trust Australia Limited, and a portion of the
Purchase Price has been allocated to the purchase of such Purchased Assets and
will be paid by such assignees, all as more fully set forth in the ▇▇▇▇ of Sale.
Other than any such assignees or designees of Purchaser, there are no intended
third party beneficiaries of this Agreement and this Agreement does not confer
any right or any remedy on any person other than Purchaser and Seller.
12.5 Headings. The section headings and the Table of Contents are for
convenience only and shall not affect the meaning or construction of any
provision of this Agreement.
12.6 Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall be deemed one original.
12.7 Public Announcements. Except as required by law or upon order of
any governmental authority, neither Purchaser nor Seller shall, without the
prior written consent of the other, make any public announcement with respect to
the subject matter of this Agreement and the transactions contemplated hereby
other than a standard tombstone-style announcement. The parties agree to consult
with each other prior to any other public announcement.
12.8 Governing Law. The validity, interpretation and enforcement of
this Agreement and any dispute arising out of or in connection with this
Agreement, whether sounding in contract, tort, equity or otherwise, shall be
governed by the internal laws (as opposed to the conflicts of laws provisions)
and decisions of the State of California.
12.9 SUBMISSION TO JURISDICTION. ALL DISPUTES AMONG THE PARTIES
HERETO, WHETHER SOUNDING IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE
RESOLVED ONLY BY STATE AND FEDERAL COURTS LOCATED IN LOS ANGELES, CALIFORNIA,
AND THE COURTS TO WHICH AN APPEAL THEREFROM MAY BE TAKEN.
12.10 JURY TRIAL. THE PARTIES HERETO EACH HEREBY WAIVE ANY RIGHT TO A
TRIAL BY JURY. INSTEAD, ANY DISPUTES WILL BE RESOLVED IN A BENCH TRIAL.
12.11 Delays. No delay or omission of a party hereto to exercise any
right or remedy hereunder shall impair any such right or operate as a waiver
thereof.
12.12 Severability. In case any provision in or obligation under this
Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or obligations
shall not in any way be affected or impaired thereby.
22
IN WITNESS WHEREOF, Purchaser and Seller have caused this Agreement to
be duly executed and delivered as of the date first above written.
BT COMMERCIAL CORPORATION
By:________________________________________
Title:__________________________________
▇▇▇▇ GRAPHIC SYSTEMS, INC.
By:________________________________________
Title:__________________________________