Exhibit 99.2
ASSET PURCHASE AND SALE AGREEMENT
between
BRADCO SUPPLY CORPORATION
as Purchaser
and
WICKES INC.
GLC DIVISION, INC.
and
LUMBER TRADEMARK COMPANY
as Seller
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Dated: as of June 23, 2004
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ASSET PURCHASE AND SALE AGREEMENT
THIS ASSET PURCHASE AND SALE AGREEMENT (the "Agreement"), dated as of June
23, 2004, is entered into by and among WICKES INC., a Delaware corporation, GLC
DIVISION, INC., a Delaware corporation ("GLC"), and LUMBER TRADEMARK COMPANY, an
Illinois corporation ("Lumber Trademark") ("Wickes", GLC and Lumber Trademark
are collectively referred to as "Seller" hereunder), and BRADCO SUPPLY
CORPORATION, a New Jersey corporation ("Purchaser").
RECITALS
A. Seller operates a lumber, hardware, wood products, building materials,
component sales and manufacturing business known as Wickes, Wickes Lumber or
Wickes Components, and which has facilities throughout the United States. Such
operations include each facility described on Schedule A, and as such operations
as they relate to each such facility is referred to in this Agreement as a
"Location." Each Location is referred to collectively as the "Locations".
Notwithstanding anything herein to the contrary, any reference hereunder to the
terms Location or Locations shall be limited to the following facilities:
Bear, Delaware Plant
Ephrata, PA (yard and plant)
Exton, PA
Frederick, MD
Hampton, NH
Kenvil, NJ
Menands, NY
▇▇▇▇▇▇▇▇, NH
Newtown, CT
Portland, ME
Walden, NY
The actual addresses of each Location are set forth on Schedule A.
Further, any reference to the term Assets, as defined herein, or any of the
other definitions set forth in Section I shall be limited to the Locations as
enumerated above and on Schedule A annexed hereto.
B. On January 20, 2004 (the "Petition Date"), Wickes filed a voluntary
petition (the "Bankruptcy Case") for relief under Chapter 11 of Title 11 of the
United States Code, 11 U.S.C. ▇▇.▇▇. 101 et seq. (the "Bankruptcy Code") in the
United States Bankruptcy Court for the Northern District of Illinois (the
"Bankruptcy Court") and continues to manage its properties as debtor and
debtor-in-possession pursuant to Sections 1107 and 1108 of the Bankruptcy Code.
C. The parties intend that Seller sell to Purchaser and Purchaser acquire
from Seller substantially all of the assets of Seller related to each Location
other than the "Excluded Assets" (as herein defined).
AGREEMENT
1. DEFINITIONS.
In addition to the terms defined elsewhere in this Agreement, the
following terms, when used in this Agreement (including the Schedules and
Exhibits attached hereto), shall have the following meanings:
"Accounts Receivable" means all of the rights of Seller to payments due
and to become due for Inventory or finished products sold and/or delivered
and/or services performed prior to the Closing Date from each Location other
than credit card receipts.
"Actual Assumed Accounts Receivable Value" has the meaning set forth in
Section 2.6.2.
"Actual Inventory Value" has the meaning set forth in Section 2.6.1 as
modified by Section 2.6.3 hereof.
"Appraised Value" refers to the fair market value of each parcel of Owned
Real Property stated in an appraisal prepared by ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ dated in
September, 2003 and among the records of Seller and a July, 2001 appraisal
prepared by ▇▇▇▇▇▇▇▇ & Associates, Inc., which reports the fair market value as
of the date of such report for the Kenvil, NJ Owned Real Estate.
"Assets" means the assets related to each Location, including Inventory,
Owned Equipment, Accounts Receivable, Seller's right, title and interest in the
Designated Executory Contracts, Intangibles, Owned Real Property, and copies of
Books and Records to be transferred under this Agreement, described in
particularity in Section 2 of this Agreement.
"Assumed Accounts Receivable" means all Accounts Receivable other than
Excluded Accounts Receivable and shall further mean or be subject to the
following conditions: (i) all charges posted to the account are proper; (ii) no
account shall include attorney's fees, or other collection charges of any kind;
(iii) Seller shall have no knowledge of any dispute with respect to any charge,
invoice, or product sold in connection with the account, any other defense,
claim or right of off-set related thereto.
"Assumed Customer Orders" means with respect to each Location, orders
entered into in the ordinary course of business not yet delivered as of the
Closing Date.
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"Assumed Purchase Orders" means orders for Inventory that are in process
on the day of Closing that have been placed in the ordinary course of each
Location by Seller.
"Assumed Liabilities" has the meaning set forth in Section 2.3.
"Bid Deposit" has the meaning set forth in Section 2.10.
"Books and Records" means all books and records of Seller that pertain
exclusively to the conduct of each Location, the ownership, use, and operation
of the Assets, or the payment or performance of the Assumed Liabilities,
including any such records maintained on computer.
"Closing" means the closing of the purchase of the Assets as described in
Section 2.13.
"Closing Date" means the date upon which the Closing occurs hereunder.
"Designated Executory Contracts" means only those unexpired leases and
executory contracts, agreements for Leased Equipment, licenses, software
agreements, Assumed Purchase Orders, Assumed Customer Orders and other
agreements to the extent assignment is permitted by law, as set forth for each
Location on the attached Schedule l(a) or Real Property Leases set forth on the
attached Schedule l(b)
"Employee Benefit Plan" means an employee benefit plan, within the meaning
of Section 3(3) of ERISA, established and maintained by Seller.
"Equipment" means the Owned Equipment and the Leased Equipment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Estimated Assumed Accounts Receivable Value" means Seller's good faith
estimate of Actual Assumed Accounts Receivable Value based upon the amounts
reflected in Seller's subsidiary accounts receivable records, maintained in a
manner consistent with Seller's internal operating procedures, dated as of the
close of business on the Saturday immediately prior to the Closing Date, and
which is set forth for each Location on Schedule A to this Agreement, subject to
the terms and conditions of the definition of Assumed Accounts Receivable set
forth in this Section 1.
"Estimated Inventory Value" means Seller's good faith estimate of Actual
Inventory Value based upon the prices and quantities reflected in the Stock
Ledger of Seller, plus the amount of Prepaid Purchase Orders reflected in the
Books and Records, all as maintained in a manner consistent with Seller's
internal operating procedures, dated as of the close of business on the Saturday
immediately prior to the Closing Date, and which is set forth for each Location
on Schedule A to this Agreement.
"Excluded Accounts Receivable" means those Accounts Receivable as of the
Closing Date which Seller has written off and which are no longer shown on its
accounts receivables trial balance as current or reserved, or are otherwise
excluded by reason of such receivables not falling with the terms and conditions
of the definition of Assumed Accounts Receivable.
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"Excluded Assets" has the meaning set forth in Section 2.2.
"Hazardous Substance" means (i) all materials, substances, elements or
compounds that are contained in the list of hazardous substances adopted by the
United States Environmental Protection Agency and the list of toxic pollutants
designated by Congress or the Environmental Protection Agency or under any
Environmental Laws; and (ii) any hazardous waste, hazardous substance, hazardous
materials (including, but not limited to, asbestos (whether or not friable),
radioactive materials, petroleum and petroleum-related products, material, and
substances), toxic substance, regulated substance, pollutant or contaminant as
defined under any Environmental Laws or any other substance or material which is
otherwise identified as "toxic" or "hazardous" under any Environmental Laws.
"Immediately Available Funds" means electronic wire transfer to an account
or accounts designated by the payee.
"Intangibles" has the meaning set forth in Section 2.1.4.
"Inventory has the meaning set forth in Section 2.1.1.
"Inventory Value Difference" has the meaning set forth in Section 2.4.4.
"IP Assets" means:
The trade names "Wickes" and "Wickes Lumber" and all related brand
names trademarks (whether currently or formerly used, whether federally
registered or used at common law), copyrights, packaging designs, service
marks, assumed names, trade dress, applications and registrations (whether
United States, foreign, state or other) for and with respect to any of the
foregoing, renewals, reissues, divisions and continuations of any of the
foregoing, together with all goodwill associated with any of the
foregoing, together with all rights to damages, claims and payments now or
hereafter receivable with respect to any of the foregoing, including all
rights to ▇▇▇;
Seller's computer software and other intellectual property
(including, but not limited to, software manuals) related to the Seller's
in-store system software, Builders Central 2000 Software, the Seller's
owned and leased computer programs developed exclusively by and for the
Locations.
Seller's right, title and interest in its national marketing
programs.
"Leased Equipment" means the machinery, manufacturing equipment, tools,
supplies vehicles, forklifts, and other rolling stock, furniture, appliances,
fixtures (including store displays, whether or not attached to the walls,
floors, ceilings or any framework), and all other items of personal property
which are not owned by Seller, but are used in each Location.
"Leased Real Property" means those certain parcels of land which are
subject to the Real Property Leases described on the attached Schedule 1(b),
together with all rights and interests appurtenant thereto and the buildings and
improvements thereon.
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"Location" has the meaning set forth in Recital A and is specifically
limited to the Locations listed in Recital A and listed on Schedule A annexed
hereto.
"Owned Equipment" means the machinery, manufacturing equipment, tools,
supplies, vehicles, forklifts, and other rolling stock, furniture, appliances,
fixtures (including store displays, whether or not attached to the walls,
floors, ceilings or any framework), and all other items of personal property,
excluding Inventory, which are owned by Seller and used at each Location,
including those described for each Location on the attached Schedule 1(c).
"Owned Real Property" means those certain parcels of land legally
described for each Location on the attached Schedule 1(d), together with all
rights and interests appurtenant thereto and the buildings and improvements
thereon.
"Person" means an individual, corporation, partnership, limited liability
company, limited liability partnership, unincorporated association, trust, joint
venture or other organization or entity, including a governmental entity or any
department, agency or political subdivision of such entities.
"Permitted Liens" means those liens on Owned Real Property described in
Section 4.5.1.
"Petition Date" has the meaning set forth in Recital B.
"Prepaid Purchase Orders" are Assumed Purchase Orders that have been
prepaid by Seller.
"Purchaser's Damages" has the meaning set forth in Section 6.7.
"Real Property" means the Owned Real Property and the Leased Real
Property.
"Real Property Lease" means the lease agreements for the Leased Real
Property set forth on Schedule 1(b).
"Rejected Executory Contracts" means all of the executory contracts and
unexpired leases relating to each Location except for the Designated Executory
Contracts.
"Stock Ledger" means the perpetual inventory records at each Location
which includes each Location's in-store or Woodware perpetual inventory systems
and used for the purpose of determining Estimated Net Book Value and Actual Net
Book Value.
"Subsidiaries" means GLC and Lumber Trademark.
"Title Commitment" has the meaning set forth in Section 4.5.1.
"Title Policy" has the meaning set forth in Section 4.5.1.
2. PURCHASE AND SALE OF ASSETS.
2.1 Purchase and Sale of Assets. On and subject to the terms and
conditions set forth in this Agreement, and except as provided in Section 2.2 as
to Excluded Assets, at
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Closing, Seller shall sell, assign, transfer, convey, set over and deliver to
Purchaser, and Purchaser shall purchase, acquire and accept from Seller all of
the Assets, which are more fully described as follows:
2.1.1 Inventory. Subject to the provisions of Section 2.6.3,
all inventory belonging or assigned to or otherwise located at each Location on
hand as of the Closing Date, including raw materials, work-in-progress, tool
rental inventory and finished goods ("Inventory");
2.1.2 Real Property Interests. Seller's fee interests in the
Owned Real Property and Seller's interest in the Real Property Leases that are
Designated Executory Contracts.
2.1.3 Equipment. All of the Owned Equipment;
2.1.4 Intangibles. Except for the IP Assets, all intangible
assets, rights and claims of Seller of every kind and nature relating to the
Locations including licenses, customer lists, telephone numbers, advertising and
marketing programs and plans, referral relationships, business information
currently used by Seller in connection with the operation of the Location, and
associated corporate goodwill (the "Intangibles") (provided that to the extent
such Intangibles are used and after the Closing will continue to be used in that
portion of Seller's operations not conveyed to Purchaser under this Agreement,
such assignment shall not be on an exclusive basis);
2.1.5 Designated Executory Contracts. All of Seller's rights
under the Designated Executory Contracts. Purchaser shall be entitled at any
time prior to Closing to elect not to assume any Designated Executory Contract,
in which event such contract shall be deemed to be a Rejected Executory Contract
hereunder. Seller shall cooperate with Purchaser and use Seller's commercially
reasonable efforts to assist Purchaser to negotiate for continued use of assets
subject to any Rejected Executory Contract that Purchaser designates. Purchaser
shall be obligated to pay any amounts which become due under the Designated
Executory Contracts from and after the Closing Date. Seller shall pay any and
all cure costs relating to the assumption and assignment of the Designated
Executory Contracts in such amounts as are determined by agreement between
Seller and the lessor thereof, or by order the Bankruptcy Court.
2.1.6 Books and Records. Copies of all relevant books, papers
and records relating to the Assets and the operation of the Location (the "Books
and Records");
2.1.7 Accounts Receivable. All of Seller's right, title and
interest in the Assumed Accounts Receivable arising from or related to sales
from the Location;
2.1.8 Cash on Hand. Cash on hand at each Location as of the
close of business on the last business day preceding the Closing Date.
2.1.9 Insurance Benefits. The benefits of any insurance that
would cover any of Purchaser's Damages with respect to which Purchaser is
entitled to indemnity from Seller under Section 6.7. At Closing Purchaser shall
be deemed to be made an additional insured
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on all of Seller's policies of liability insurance that provide coverage to any
person or organization to whom Seller is contractually obligated to provide such
insurance.
2.2 Excluded Assets. Notwithstanding anything to the contrary contained in
Section 2.1, the following properties, assets and rights used in, or related to
the Location (the "Excluded Assets") are excluded from the Assets and shall not
be purchased by Purchaser:
2.2.1 Accounts, Notes and Certain Cash. Bank accounts, cash
equivalents, notes receivable, credit card receipts and employee advances in
existence on the Closing Date and cash receipts received by Seller on the last
business day preceding the Closing Date.
2.2.2 Prepaids. Prepaid taxes, expenses, advances and any tax
refunds arising from taxes that accrued during any period prior to Closing;
2.2.3 Insurance. Except as set forth in Section 2.1.9 or as
otherwise provided in this Agreement, insurance policies, including any premium
refunds in respect of such policies and claims covered by such policies arising
prior to Closing;
2.2.4 Excluded Accounts Receivable. All of Seller's right,
title and interest in the Excluded Accounts Receivable;
2.2.5 Books and Records. The originals of Books and Records
relating to each Location for periods prior to the Closing Date (except to the
extent needed by Purchaser to collect the Assumed Accounts Receivable or as
otherwise agreed between Purchaser and Seller);
2.2.6 Personal Property. Those items of personal property
listed and described for each Location on the attached Schedule 2.2.6;
2.2.7 Capital Leases. Any asset determined to be governed by a
capitalized lease or similar other title retention agreement intended as
security under generally accepted accounting principles.
2.2.8 Deposits. Deposits on account with vendors of each
Location that are not applied to Prepaid Purchase Orders.
2.2.9 IP Assets. Except as otherwise provided for herein, all
of Seller's right, title and interest in the IP Assets, but subject to the
License as set forth in Section 4.4.
2.2.10 Rejected Executory Contracts. All of Seller's rights
under the Rejected Executory Contracts, provided that notwithstanding the
forgoing, the effective date of rejection for each Rejected Executory Contract
shall be not less than 30 days subsequent to the Closing Date, and Seller shall
afford to Purchaser the use and benefit of assets or Seller's rights that are
governed by Rejected Executory Contracts until the effective date of such
rejection. Such use and benefit shall be afforded to Purchaser by Seller under
the conditions that Seller shall be responsible for the regular payment of rent,
fees or similar charges for the period subsequent to the Closing Date and prior
to the effective date of rejection (subject to a proration
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credit at Closing from Purchaser to Seller as provided in Section 2.12.6), and
Purchaser shall be responsible for performance, insurance, licensing, risk of
injury and risk of loss associated with such Rejected Executory Contracts
subsequent to the Closing Date. Purchaser shall be responsible to Seller for,
and shall defend, indemnify and hold Seller harmless from and against loss,
damage, liability, cost or expense (including reasonable attorneys' fees and
legal expense), or diminution of value, whether or not involving a third-party
claim, that shall be suffered or incurred by Seller (collectively, "Seller's
Damages"), resulting or relating to claims or demands made any party or parties
arising as a result of Purchaser's use, control or conduct of any assets subject
to the Rejected Executory Contracts after the Closing Date, including any
liability for personal injury, property damage or other harm relating to assets
subject to the Rejected Executory Contracts. Purchaser covenants and agrees to
deliver any assets subject to Rejected Executory Contracts to the respective
lessor or owner thereof at the direction of Seller on the effective date of
rejection of each such Rejected Executory Contract; and
2.2.11 Claims. All preference or avoidance claims and actions
of Seller, including any such claims or actions arising under Sections 544, 547,
548, 549 and 550 of the Bankruptcy Code, insurance proceeds, claims and causes
of action with respect to or arising in connection with any Excluded Assets.
2.2.12 Excluded Inventory. All inventory that is not purchased
Purchaser pursuant to the provisions of Section 2.6.3, which inventory shall be
removed from each Location at Seller's expense as soon as practicable (but in no
event more than 60 days) after the Closing Date.
2.3 Assumption of Liabilities. Contemporaneously with the purchase
of the Assets, Purchaser shall assume the following liabilities and become
obligated to perform the following obligations of Seller:
2.3.1 Current liabilities and obligations identified on the
attached Schedule 2.3 and/or pursuant to Section 2.12 in the amount set forth
therein;
2.3.2 Assumed Purchase Orders (except to the extent they are
Prepaid Purchase Orders);
2.3.3 Assumed Customer Orders; and
2.3.4 obligations under the Designated Executory Contracts
that accrue after the Closing.
The foregoing are collectively referred to as the "Assumed
Liabilities". Except for (i) the Assumed Liabilities, (ii) obligations under
Rejected Executory Contracts between the Closing Date and the effective date of
rejection as provided in Section 2.2.10, and (iii) as otherwise specifically set
forth in this Agreement, Purchaser shall not have any obligation for or with
respect to any liability or obligation of Seller (such liabilities not assumed
by Purchaser being hereinafter referred to as the "Excluded Liabilities").
Without limiting the foregoing, Purchaser shall not assume nor bear any
responsibility of any kind whatsoever with respect to, and specifically
disclaims any liability for, and Seller hereby releases and discharges
Purchaser, its directors, shareholders, officers, employees, representatives,
agents, attorneys and assigns from
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and against any and all of the following claims which any entity had, has, or at
any time may have against Seller, and the Assumed Liabilities shall not include:
(a) All environmental claims related to, associated with or arising out of the
ownership, operation, use or control of the Assets at any Location, or
environmental conditions existing at any Location, or as a result of the
operations of, the Assets at any Location, before or as of the Closing Date,
whether arising under environmental laws, or in any way arising in connection
with the presence, release or threatened release of Hazardous Substances at, on,
to or from (i) the Assets, including, but not limited to, surface water, air,
soil or groundwater thereon, thereunder or adjacent thereto or (ii) any real
property at which Hazardous Substances generated by operations of the Assets
were sent prior to the Closing Date; and (b) all warranty or product liability
claims related to, associated with or arising out of the ownership, operation,
use or control of the Assets existing on, or as a result of the operations of,
the Assets, before the Closing Date.
2.3.5 Leased Equipment. For a period of thirty (30) days after
Closing, Purchaser shall have the right to use the Leased Equipment, and during
that period Purchaser will attempt to negotiate the lease or purchase by it of
the Leased Equipment. If Purchaser is unable to so acquire the Leased Equipment
or enter into leases on terms acceptable in all respects to Purchaser, then, on
or prior to the effective date of rejection of each Rejected Executory Contract,
Purchaser shall surrender the items of Leased Equipment for which such
arrangements could not be resolved, to the applicable lessor of such items of
Leased Equipment.
2.4 Purchase Price. The purchase price (the "Purchase Price") shall
be determined as follows:
2.4.1 The sum of the following amounts for the various Assets
comprising the Locations:
(a) For the Assumed Accounts Receivable, the Actual Assumed Accounts
Receivable Value;
(b) For the Inventory, 95% of the Estimated Inventory Value (except for
Prepaid Purchase Orders as to which the price shall be 100% of the
cost of the items covered thereby), subject to adjustment as
hereinafter provided;
(c) For the Owned Equipment, Seller's Closing book value (as reflected
in Seller's financial and accounting records) for such Owned
Equipment;
(d) For the Owned Real Property, the following amounts:
Bear. DE Plant - $1,500,000.00
Ephrata, PA - Yard }
and } $2,500,000.00 aggregate price
Ephrata, PA - Plant }
Exton, PA - $2,000,000.00
Frederick, MD - $3,900,000.00
Hampton, NH - $1,350,000.00
Kenvil, NJ - $2,100,000.00
▇▇
▇▇▇▇▇▇▇, ▇▇ - $1,300,000.00
Portland, ME - $1,500,000.00
Walden, NY - $1,300,000.00
(e) For goodwill, the following amounts allocated to the Locations as
listed:
Bear, DE Plant - $400,000.00
Ephrata, PA (yard & plant) - $400.000.00 (aggregate)
Exton, PA - $300,000.00
Frederick, MD - $550,000.00
Hampton, NH - $400,000.00
Kenvil, NJ - $400,000.00
▇▇▇▇▇▇▇▇, NH - $1,250,000.00
Newtown, CT - $400,000.00
Portland, ME - $300,000.00
Walden, NY - $200,000.00
In addition, if Purchaser actually acquires all the Locations, the amount
of goodwill payable shall be increased by $2,400,000.00.
2.4.2 In addition to the foregoing, the following adjustments
shall occur: plus an amount equal to cash on hand at each Location as of the
close of business on the last business day preceding the Closing Date; minus
2.4.3 The amount of deposits paid to Seller prior to Closing
customers for items of Inventory which are the subject of Assumed Customer
Orders.
2.4.4 A positive or negative dollar-for-dollar adjustment
shall be made subsequent to the Closing to the Purchase Price for the
differences between the Estimated Inventory Value and the Actual Inventory Value
(the "Inventory Value Difference"), as provided in Section 2.6.
2.5 Payment of Purchase Price. Purchaser shall pay to Wickes an
amount equal to the Purchase Price less the Bid Deposit in Immediately Available
Funds at Closing. The Purchase Price shall be adjusted after the Closing to
reflect the Inventory Value Difference as provided in Section 2.6.
2.6 Purchase Price Adjustment.
2.6.1 Actual Inventory Value. On the first day following the
Closing Date, or such other time mutually agreed upon by Purchaser and Seller,
the Purchaser and Seller shall take a physical inventory of each Location in
accordance with the inventory procedures set forth in the attached Schedule
2.6.1. The Actual Inventory Value shall be calculated as follows:
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2.6.1.1 the parties shall subtract from the Estimated
Inventory Value at the price at which it was reflected on the Estimated
Inventory Value
(i) each item of inventory reflected on the Stock
Ledger dated as of the close of business on the Saturday immediately prior
to the Closing Date at Seller's moving average cost which was sold prior
to Closing;
(ii) the amount of the Estimated Inventory Value
that consisted of Prepaid Purchase Orders; and
(iii) Inventory reflected on the Stock Ledger that
is not present when the physical inventory is taken;
2.6.1.2 the parties shall add to the Estimated Inventory
Value
(i) an amount equal to Seller's cost for each item
of inventory purchased subsequent to the Stock Ledger dated as of the
close of business on the Saturday immediately prior to the Closing Date
and present at the Location when the physical inventory is taken,
(ii) an amount equal to Seller's cost for each
item of Inventory subject to a Prepaid Purchase Order on the date when the
physical inventory is taken (inclusive of applicable transportation
costs); and
(iii) an amount equal to Seller's net average cost
reflected on the Stock Ledger dated as of the close of business on the
Saturday immediately prior to the Closing Date for each item of Inventory
that is present (and not already accounted for pursuant to Section
2.6.1.2(i)) at the time of the physical inventory that is in excess of the
amount shown on such Stock Ledger.
2.6.1.3 the parties shall add to and include in the
Actual Inventory Value the value of work-in-process and finished goods Inventory
determined by Seller's cost of the raw materials reflected in the physical
inventory plus the cost of labor allocated to such items based upon percentage
of completion as mutually agreed upon by Seller and Purchaser at the time of the
physical inventory.
The physical inventory shall not be used to attribute any discount to Actual
Inventory Value for qualitative matters, including but not limited to broken,
damaged, defective, discontinued or obsolete items.
2.6.2 Actual Assumed Accounts Receivable Value. Actual Assumed
Accounts Receivable Value shall be determined on the Closing Date and shall be
an amount equal to the face amount of the Accounts Receivable less 50% of the
amount of the reserves established by Seller for Accounts Receivable that remain
unpaid more than 90 days after the due date thereof or with respect to which
Seller has otherwise established a reserve, in each case as reflected in
Seller's accounts receivable trial balance records for each Location as of the
last business day preceding the Closing Date, maintained in a manner consistent
with Seller's internal operating procedures.
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2.6.3 Clarification of Value of Inventory. Notwithstanding
anything herein to the contrary, the Estimated Inventory Value and Actual
Inventory Value shall not be more than 95% of Seller's cost for such items as
shown on its Stock Ledger and Inventory records, except for Prepaid Purchase
Orders, as to which such values shall be 100% of Seller's cost for the items
subject thereto. The Inventory purchased by Purchaser shall exclude Inventory
which is used, damaged or unmerchantable (including, without limitation, items
with respect to which the shelf life has expired). For such items the parties
shall attempt to negotiate a separate Inventory value so that Purchaser has the
opportunity to purchase such items on a negotiated basis. Seller maintains ▇▇▇▇▇
Corning vinyl siding Inventory at some of its Locations and such siding will be
deemed unmerchantable for purposes hereof and excluded from the Inventory
purchased by Purchser.
2.7 Disputes. If the parties are unable to agree upon the
calculation of the Actual Inventory Value or the Actual Assumed Accounts
Receivable Value, then the parties shall negotiate in good faith in an effort to
resolve such objections. If the parties are unable to resolve any such
objections within ten (10) business days after the physical inventory, then
undisputed amounts shall be paid in accordance with the procedures set forth in
Section 2.8 and the issues in dispute shall be submitted to the Bankruptcy Court
for resolution.
2.8 Post Closing Payment of Inventory Value Difference. On the
twentieth (20) day following the Closing Date, except to the extent that the
parties are unable to resolve their differences with respect to the calculation
of the Actual Inventory Value, Seller and Purchaser shall make the following
adjustments to Purchase Price:
2.8.1 Payment to Seller; Replenishment of Bid Deposit. In the
event that the Actual Inventory Value, as determined in accordance with Section
2.6, is greater than the Estimated Inventory Value, then (i) Purchaser and
Seller shall jointly instruct the Title Company to release to Seller, in
Immediately Available Funds, an amount equal to the Inventory Value Difference,
and (ii) within two (2) business days thereafter, Purchaser shall deposit with
the Title Company in Immediately Available Funds an amount equal to the
Inventory Value Difference (which additional deposit shall be deemed to
constitute a portion of the Bid Deposit for purposes of this Agreement and the
Deposit Agreement). If the amount of Bid Deposit is insufficient to satisfy the
Inventory Value Difference, then Purchaser shall pay directly to Seller in
Immediately Available Funds on the same date as the Bid Deposit is released to
Seller pursuant to this Section, the unpaid remaining Inventory Value Difference
to Seller.
2.8.2 Payment to Purchaser. If the Estimated Inventory Value
is greater than the Actual Inventory Value, then Purchaser and Seller shall
jointly instruct the Title Company to release to Purchaser, in Immediately
Available Funds, an amount equal to the Inventory Value Difference. If the
amount of Bid Deposit is insufficient to satisfy the Inventory Value Difference,
then Seller shall pay directly to Purchaser in Immediately Available Funds on
the same date as the Bid Deposit is released to Purchaser pursuant to this
Section, the unpaid remaining Inventory Value Difference.
2.9 Allocation of Purchase Price. The Purchase Price shall be
allocated among the Assets by Purchaser and Seller within ninety (90) calendar
days following the Closing Date, or such later date as the Purchase Price, as
adjusted, is determined in accordance with
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Section 2.4, subject to the following: (i) such allocation shall be reflected in
the Tax returns (including, but not limited to, Internal Revenue Service Form
8594) that are filed by Purchaser and the Seller in accordance with Section 1060
of the Code (and any similar provision of state or local law, as appropriate),
with such adjustments as may be necessary pursuant to Section 2.6 hereof; and
(ii) Purchaser and the Seller agree to treat and report in filings under the
Code (and any state or local law, as appropriate) (and, if necessary, to cause
each of their respective Affiliates to so treat and report) the transactions
contemplated by this Agreement in a manner consistent with one another.
2.10 Bid Deposit. On the date of this Agreement, Purchaser shall pay
Two Million Eight Hundred Twenty Thousand Dollars ($2,820,000.00) (the "Bid
Deposit") directly to First American Title Insurance Company, as escrow agent
(the "Title Company") pursuant to an escrow agreement among Wickes, Purchaser
and the Title Company in the form attached to this Agreement as Exhibit 2.10
(the "Deposit Agreement"). The Bid Deposit shall be applied and transferred to
the parties only for the purposes and in the manner set forth in this Section
2.10.
2.10.1 The Bid Deposit shall be transferred to Purchaser upon
the rightful termination of this Agreement by Purchaser under Section 6.6.2;
2.10.2 The Bid Deposit shall be transferred to Wickes upon the
wrongful termination of this Agreement by Purchaser or if Purchaser defaults on
its obligation to consummate the transactions contemplated herein;
2.10.3 At the Closing no portion of the Bid Deposit shall be
wire transferred to Wickes in partial payment of the Purchase Price. The Bid
Deposit shall be applied solely as provided in Sections 2.10.4, 2.10.5 and
2.10.6;
2.10.4 Some or all of the remaining Bid Deposit as the case
may be shall be transferred to Seller or Purchaser toward payment or refund of
the Inventory Value Difference in accordance with their joint instructions
delivered pursuant to Section 2.8;
2.10.5 Any portion of the Bid Deposit remaining after
application in accordance with Section 2.10.4 shall be used, at the parties
joint direction to satisfy the prorations, if any, not capable of being made at
Closing, on or before the forty-fifth (45) day following the Closing; and
2.10.6 Any portion of the Bid Deposit remaining after
application in accordance with Section 2.10.5, shall be wire transferred to
Wickes on the forty fifth (45) day following the Closing unless a dispute under
Section 2.7 remains unresolved, in which event the remaining Bid Deposit shall
continue to be held in escrow until further order of the Bankruptcy Court.
2.11 Employee Matters.
2.11.1 Employee Matters. Subsequent to the entry of the
Approval Order, Purchaser shall have the right to interview Seller's employees
who are employed in connection with each Location. Purchaser shall make offers
of employment to a sufficient number of the employees at each Location of Seller
who are not seasonal or part-time employees
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on terms and conditions to be determined by Purchaser in its sole discretion, so
as not to trigger any obligations on the part of Seller under the Worker
Adjustment and Retraining Notification Act of 1988, as amended, or any similar
state or local laws with respect to mass layoffs or similar events (the "WARN
Act"). Nothing herein shall obligate Purchaser to employ any such Seller's
employees for any particular length of time following the Closing Date.
Purchaser agrees to indemnify, and hold Seller and its successors harmless from
or against, any and all Seller's Damages which Seller may incur in connection
with any suit or claim of violation brought against Seller under the WARN Act or
any similar state or foreign law, which relates to transactions effected
hereunder, or any other action taken by Buyer on or after the Closing Date.
2.11.2 Certain Responsibilities. Immediately prior to Closing,
Seller will terminate the employment of all employees at each Location who have
accepted Purchaser's offer of employment, and all obligations in connection with
such employees arising prior to the Closing and compliance with all employment
laws applicable prior to the Closing shall be the responsibility of Seller (all
of which are Excluded Liabilities), including paying all compensation, bonuses,
commissions, payroll taxes and accrued vacation, COBRA benefits (if and to the
extent Seller maintains any health insurance plans after the Closing), accrued
sick pay due and payable through the Closing Date, and other employee benefits
or obligations of any kind which accrue prior to the Closing Date. Seller may
issue final pay checks to employees at each Location in the ordinary course of
business in arrears.
2.12 Prorations and Other Payment Obligations.
12.12.1 Ad Valorem Taxes. Ad valorem taxes on the Real
Property and personal property Assets being sold hereunder shall be prorated
between the Seller and Purchaser as of the Closing Date. All obligations due in
respect of periods prior to the Closing Date shall be the obligations of Seller
and all obligations due in respect of periods after the Closing Date shall be
the obligation of Purchaser. If in favor of Purchaser, the net proration credit
shall be a credit against the Purchase Price due at Closing. If in favor of
Seller, the net proration credits shall be added to the Purchase Price due at
Closing. If Seller is obligated under any Real Property Lease to pay ad valorem
taxes on the applicable Leased Real Property, such ad valorem taxes shall be
paid and prorated on the basis and in the manner set forth above, provided,
however, if Seller has deposited payments of accrued ad valorem taxes with the
landlord pursuant to any Real Property Lease, then Seller shall receive a
proration credit in that amount. If the tax rate for the current year is not
established by the Closing Date, the proration of taxes shall be upon the most
recent tax ▇▇▇▇. In the event any penalties or interest on account of unpaid
taxes cannot be determined as of the Closing Date, the parties shall reprorate
for such penalties or interest on the eleventh day following the Closing Date.
Except for the reproration set forth in the immediately preceding sentence, all
such prorations shall be final as of Closing.
12.12.2 Utilities. Final readings for all utilities, including
water and sewer charges, as well as propane gas, electric and telephone charges,
utilized in relation to the Assets subsequent to the Petition Date shall be made
on or before the Closing Date, and Seller shall arrange and obtain final
▇▇▇▇▇▇▇▇ of such utilities to close of business on the Closing Date. If, for
reasons beyond Seller's reasonable control, it is not possible to obtain final
utility readings prior to the Closing Date, utilities shall be prorated as of
the close of business on the Closing Date based upon the most recently available
bills. Cash deposits with utilities shall be the property of
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Seller and refundable to Seller unless the parties agree in their mutual
discretion in any instance that Seller shall assign to Purchaser any such
deposit at Closing, in which event Seller shall receive a proration credit in
such sum. All such prorations shall be final as of Closing.
2.12.3 Closing Costs. At or prior to Closing, Seller shall pay
the costs of the title insurance policies in Section 4.5 and Seller and
Purchaser shall each pay at Closing one-half of any escrow or agency fees
incurred with the Title Company.
2.12.4 State and Local Transfer Taxes. In accordance with
Section 1146(c) of the Bankruptcy Code, the making or delivery of any
instrument to evidence, effectuate, or perfect the rights, transfers, and
conveyances contemplated by this Agreement shall be in contemplation of a plan
or plans of reorganization to be confirmed in the Bankruptcy Case and, as such,
shall be free and clear of any and all Taxes and any such instrument may, at the
request of Purchaser, contain an endorsement to that effect. In the event that,
notwithstanding the foregoing, any state or local transfer, taxes are assessed
on the transfer of the Assets to Purchaser, such Taxes shall be paid by Seller,
and Seller shall complete and file all returns associated therewith. Such
obligations shall survive the Closing.
2.12.5 Rents. All rents and other tenant charges and credits
accruing under the Real Property Leases shall be prorated as of the Closing Date
based on the monthly period for which the lease payments with respect thereto
are or have been paid.
2.12.6 Rejected Executory Contracts. Rent, fees or similar
charges incurred by Seller pursuant to Section 2.2.10 for the period subsequent
to the Closing Date and prior to the effective date of rejection for Rejected
Executory Contracts to the extent (i) Purchaser derives any benefit from any
such contract or otherwise utilizes the property or services that are the
subject thereof and (ii) the amount of such rent, fees or similar charges are
reasonably determinable shall be prorated as of the Closing Date and credited to
Seller and shall in any event be prorated and credited to Seller no later than
the date provided in Section 2.10.5.
2.13 The Closing.
2.13.1 Closing. The Closing of the purchase and sale of the
Locations shall take place two (2) business days after the later of:
2.13.1.1 The date on which all conditions to the Closing
set forth in Section 5 have been satisfied or waived (other than (i) those
conditions that are waived at Closing, and (ii) the entry of the Approval
Order); and
2.13.1.2 The second business day after the date of the
entry of the Approval Order;
2.13.2 Location of Closing. The Closing shall take place at
the offices of Schwartz, Cooper, ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Chtd., in Chicago,
Illinois.
2.13.3 Closing Deliveries by Seller. At the Closing, Seller
shall deliver or cause to be delivered to Purchaser:
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2.13.3.1 A ▇▇▇▇ of Sale in substantially the form
attached to this Agreement as Exhibit 2.13.3.1 executed by Seller, conveying the
Assets (other than the Designated Executory Contracts, Owned Real Property and
titled vehicles);
2.13.3.2 A Quitclaim Deed for each parcel of the Owned
Real Property in substantially the form attached to this Agreement as Exhibit
2.13.3.2 conveying each parcel of the Owned Real Property to Purchaser or its
permitted assignee as hereinafter provided;
2.13.3.3 An Assignment of Leases in substantially the
form attached to this Agreement as Exhibit 2.13.3.3 assigning each of the Real
Property Leases that are Designated Executory Contracts to Purchaser, executed
by Seller and, in the case of the lease for the Meredith, NH Location, by GLC;
2.13.3.4 An Assignment and Assumption Agreement in
substantially the form attached to this Agreement as Exhibit 2.13.3.4 for the
Assumed Liabilities, including without limitation, the Designated Executory
Contracts, executed by Seller;
2.13.3.5 Seller shall execute and deliver such other
documents and instruments as may be reasonably required by the Title Company to
Close this transaction;
2.13.3.6 If available to Seller at Closing, all titles
to all titled vehicles owned by Seller and comprising part of the Assets,
executed or endorsed by Seller (and if not available at Closing, Seller shall
deliver such titles to Purchaser no later than the eleventh business day
following the Closing);
2.13.3.7 Each Title Policy (or signed "▇▇▇▇-up") issued
pursuant to each Title Commitment described in Section 4.5.1.
2.13.3.8 Evidence reasonably satisfactory to Purchaser
that the sublease by GLC to Seller of the Meredith, NH Location has been
terminated with no liability to Purchaser;
2.13.3.9 All documents required to be delivered at
Closing by Seller, as the case may be, pursuant to Section 5.1.
2.13.4 Closing Deliveries by Purchaser. At the Closing,
Purchaser shall deliver or cause to be delivered to Seller:
2.13.4.1 The payments of Immediately Available Funds
described in Section 2.5;
2.13.4.2 An Assignment of Leases in substantially the
form attached to this Agreement as Exhibit 2.13.3.3 for each of the Real
Property Leases that are Designated Executory Contracts, executed by Purchaser;
2.13.4.3 An Assignment and Assumption Agreement in
substantially the form attached to this Agreement as Exhibit 2.13.3.4 for the
Assumed Liabilities, including without limitation, the Designated Executory
Contracts, executed by Purchaser;
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2.13.4.4 Purchaser's payment for its share of the
obligations described in Section 2.11 to the extent payable at Closing; and
2.13.4.5 All documents required to be delivered at
Closing by Purchaser pursuant to Section 5.2.
3. REPRESENTATIONS AND WARRANTIES.
3.1 Representations and Warranties of Seller. Seller represents and
warrants to Purchaser that the following statements are true and correct on the
date of this Agreement:
3.1.1 Corporate Organization and Standing of Seller. Other
than as a result of Wickes' filing the Petition, Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
3.1.2 Corporate Authorization. Subject to the Bankruptcy
Court's entry of the Approval Order with respect to Wickes, all corporate action
on the part of each Seller and its directors and shareholders necessary for the
authorization, execution, delivery and performance by each Seller of this
Agreement and the consummation of the transactions contemplated by this
Agreement has been taken. This Agreement has been duly executed and delivered by
each Seller and is a valid and binding obligation of each Seller, enforceable in
accordance with its terms, subject to entry of the Approval Order with respect
to Wickes.
3.1.3 No Conflict. Subject to the Bankruptcy Court's entry of
the Approval Order or otherwise provided in applicable bankruptcy law with
respect to Wickes, neither the execution and delivery of this Agreement by each
Seller nor the consummation of the transactions contemplated by this Agreement
will (a) conflict with or result in a breach of any provision of any Seller's
articles of incorporation or bylaws, (b) subject to the expiration or early
termination of the waiting period (and any extension thereof) under the
▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇ Antitrust Improvements Act of 1976 as amended (the "HSR Act"),
if applicable to the transactions contemplated by this Agreement, conflict with
any existing provision of applicable law or any existing order, rule,
regulation, judgment or decree of any court, arbitrator or agency of government,
(c) violate, be in conflict with, result in a breach of, or constitute (with or
without notice or lapse of time or both) a default under (or give rise to any
right of termination, cancellation or acceleration) any of the terms, conditions
or provisions of any agreement, instrument or writing to which Seller is a
party, or by which any Seller or any of the Assets may be bound, except for such
default (or right of termination, cancellation or acceleration) which will be
cured by satisfaction of the underlying obligations on or before the Closing
Date or will be waived on or before the Closing Date, or (d) violate any order,
writ, injunction, decree, statute, rule or regulation applicable to any Seller
or any of the Assets or the Location upon entry of the Approval Order.
3.1.4 Title and Condition of Assets
3.1.4.1 The sole Asset owned by GLC is the leasehold
interest in the Leased Real Property at Meredith, NH, which is subleased to
Wickes on the same terms and conditions as are contained in the lease under
which GLC is a tenant. The sole Asset owned by
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Lumber Trademark is the Flying "W" trademark. (Registration numbers 699, 239
710, 785 1,031,074) which it licenses to Wickes.
3.1.4.2 Title to the Assets except for the Owned Real
Property shall be transferred to Purchaser free and clear of all Encumbrances
other than the Assumed Liabilities. "Encumbrance" shall mean any claim,
judgment, license, lease, sublease, lien, pledge, option, charge, easement,
security interest, deed of trust, mortgage, right of way, encroachment, building
or use restriction, conditional sales agreement, title retention agreements
which are intended as security, capitalized leases under generally accepted
accounting principles, encumbrances or other rights of third parties, whether
voluntarily incurred or arising by operation of law, and includes, without
limitation, any agreement to give any of the foregoing in the future, any
contingent sale or other title retention agreement or lease in the nature
thereof, and any "claim", "lien", or "security interest" as those terms are
defined in the Bankruptcy Code.
3.1.4.3 Title to the Owned Real Property shall be sold free
and clear of all Encumbrances except for zoning, building and use restrictions
and Permitted Liens.
3.1.4.4 Seller is not a "Foreign Person" within the meaning
Section 1445 of the Code disposing of a United States real property interest
within the meaning of Section 897(c) of the Code.
3.1.4.5 To Seller's knowledge, Seller is not currently
interfering and has not interfered with, infringed upon or misappropriated any
rights of third parties as result of its use of the IP Assets. Schedule 3.1.4.5
identifies each registered trademark, registered service ▇▇▇▇, registered trade
name, corporate name or Internet domain name, material proprietary computer
software item, and registered copyright included in the IP Assets.
3.1.4.6 NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE
CONTRARY, EXCEPT AS PROVIDED IN SECTION 3 HEREOF, IT IS UNDERSTOOD AND AGREED
THAT SELLER AND ITS REPRESENTATIVES AND/OR AGENTS HAVE NOT MADE AND ARE NOT NOW
MAKING, AND THEY SPECIFICALLY DISCLAIM, ALL WARRANTIES, REPRESENTATIONS OR
GUARANTIES OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST,
PRESENT OR FUTURE, WITH RESPECT TO THE REAL PROPERTY, INCLUDING, BUT NOT LIMITED
TO, WARRANTIES, REPRESENTATIONS OR GUARANTIES AS TO (i) MATTERS OF TITLE (OTHER
THAN SELLER'S LIMITED WARRANTY OF TITLE SET FORTH IN THE DEED AND ANCILLARY
CONVEYANCE DOCUMENTS TO BE DELIVERED AT CLOSING), (ii) ENVIRONMENTAL MATTERS
RELATING TO THE REAL PROPERTY OR ANY PORTION THEREOF, (iii) GEOLOGICAL
CONDITIONS, INCLUDING, WITHOUT LIMITATION, SUBSIDENCE, SUBSURFACE CONDITIONS,
WATER TABLE, UNDERGROUND WATER RESERVOIRS, LIMITATIONS REGARDING THE WITHDRAWAL
OF WATER, AND EARTHQUAKE FAULTS AND THE RESULTING DAMAGE OF PAST AND/OR FUTURE
EARTHQUAKES, (iv) WHETHER, AND THE EXTENT TO WHICH, THE REAL PROPERTY OR ANY
PORTION THEREOF ARE AFFECTED BY ANY STREAM (SURFACE OR UNDERGROUND), BODY OF
WATER, FLOOD PRONE AREA, FLOOD PLAIN, FLOODWAY OR SPECIAL FLOOD HAZARD, (v)
DRAINAGE, (vi) SOIL
19
CONDITIONS, INCLUDING THE EXISTENCE OF INSTABILITY, PAST SOIL REPAIRS, SOIL
ADDITIONS OR CONDITIONS OF SOIL FILL, OR SUSCEPTIBILITY TO LANDSLIDES, OR THE
SUFFICIENCY OF ANY UNDERSHORING, (vii) ZONING TO WHICH THE REAL PROPERTY OR ANY
PORTION THEREOF MAYBE SUBJECT, (viii) THE AVAILABILITY OF ANY UTILITIES TO THE
REAL PROPERTY OR ANY PORTION THEREOF INCLUDING, WITHOUT LIMITATION, WATER,
SEWAGE, GAS AND ELECTRIC, (ix) USAGES OF ADJOINING PREMISES, (x) ACCESS TO THE
REAL PROPERTY OR ANY PORTION THEREOF, (xi) THE VALUE, COMPLIANCE WITH THE PLANS
AND SPECIFICATIONS, SIZE, LOCATION, AGE, USE, DESIGN, QUALITY, DESCRIPTION,
SUITABILITY, STRUCTURAL INTEGRITY, OPERATION, TITLE TO, OR PHYSICAL OR FINANCIAL
CONDITION OF THE REAL PROPERTY OR ANY PORTION THEREOF, OR ANY INCOME, EXPENSES,
CHARGES, LIENS, ENCUMBRANCES, RIGHTS OR CLAIMS ON OR AFFECTING OR PERTAINING TO
THE REAL PROPERTY OR ANY PORTION THEREOF, OR ANY INCOME, EXPENSES, CHARGES,
LIENS ENCUMBRANCES, RIGHTS OR CLAIMS ON OR AFFECTING OR PERTAINING TO THE REAL
PROPERTY OR ANY PORTION THEREOF, (xii) THE PRESENCE OF HAZARDOUS MATERIALS IN OR
ON, UNDER OR IN THE VICINITY OF THE REAL PROPERTY, (xiii) THE CONDITION OR USE
OF THE REAL PROPERTY OR COMPLIANCE OF THE REAL PROPERTY WITH ANY OR ALL PAST,
PRESENT OR FUTURE FEDERAL, STATE OR LOCAL ORDINANCES, CODES OR OTHER SIMILAR
LAWS, (xiv) THE EXISTENCE OR NON-EXISTENCE OF UNDERGROUND STORAGE TANKS, (xv)
ANY OTHER MATTER AFFECTING THE STABILITY OR INTEGRITY OF THE REAL PROPERTY,
(xvi) THE EXISTENCE OF VESTED LAND USE, ZONING OR BUILDING ENTITLEMENTS
AFFECTING THE REAL PROPERTY, (xvii) THE MERCHANTABILITY OF THE REAL PROPERTY OR
FITNESS OF THE REAL PROPERTY FOR ANY PARTICULAR PURPOSE (PURCHASER AFFIRMING
THAT PURCHASER HAS NOT RELIED ON SELLER'S SKILL OR JUDGMENT TO SELECT OR FURNISH
THE REAL PROPERTY FOR ANY PARTICULAR PURPOSE, AND THAT SELLER MAKES NO WARRANTY
THAT THE REAL PROPERTY IS FIT FOR ANY PARTICULAR PURPOSE), OR (xviii) TAX
CONSEQUENCES.
3.1.4.7 PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY UPON,
EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR ITS
REPRESENTATIVES OR ANY OF THEIR RESPECTIVE AGENTS, AND ACKNOWLEDGES THAT NO SUCH
REPRESENTATIONS HAVE BEEN MADE, EXCEPT AS SET FORTH IN SECTION 3 HEREOF. UPON
CLOSING, PURCHASER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING, BUT
NOT LIMITED TO, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, WHICH MAY NOT
HAVE BEEN REVEALED BY PURCHASER'S INSPECTIONS AND INVESTIGATIONS. PURCHASER
ACKNOWLEDGES AND AGREES THAT UPON CLOSING, SELLER SHALL SELL AND CONVEY TO
PURCHASER AND PURCHASER SHALL ACCEPT THE REAL PROPERTY "AS IS, WHERE IS", WITH
ALL FAULTS. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL
AGREEMENTS, WARRANTIES OR REPRESENTATIONS, COLLATERAL TO OR AFFECTING THE REAL
PROPERTY BY SELLER, ANY AGENT OF SELLER OR ANY THIRD PARTY. NOTWITHSTANDING
ANYTHING HEREIN TO THE CONTRARY, THIS SUBPARAGRAPH IS SUBJECT TO
20
THE REPRESENTATIONS, WARRANTIES AND COVENANTS (WHICH SURVIVE CLOSING) OF SELLER
CONTAINED HEREIN OR IN THE CLOSING DOCUMENTS.
3.1.4.8 UPON CLOSING SELLER SHALL SELL AND CONVEY TO PURCHASER
AND PURCHASER SHALL ACCEPT TITLE TO THE ASSETS OTHER THAN REAL PROPERTY AS IS,
WHERE IS, WITH ALL FAULTS (EXCEPT AS OTHERWISE EXPRESSLY WARRANTED IN THIS
SECTION 3), AND WITHOUT ANY WARRANTIES OF CONDITION, MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE WHATSOEVER.
3.1.5 Contracts. Accurate and complete copies of all
Designated Executory Contracts have been delivered or made available to
Purchaser.
3.1.6 Labor Matters. Seller has no union contracts or
collective bargaining agreements with, or any other obligations to, employee
organizations or groups.
3.1.7 Notice. Seller has or will given notice of its intent to
sell the Assets to all parties entitled to such notice under Bankruptcy Rule
2002, including without limitation all parties owning, claiming or asserting an
Encumbrance in or to any of the Acquired Assets.
3.2 Representations and Warranties of Purchaser. Purchaser
represents and warrants to Seller that the following statements are true and
correct on the date of this Agreement and will be true and correct on the
Closing Date as though made on such date:
3.2.1 Organization and Standing. Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
State of New Jersey.
3.2.2 Power and Authority. Purchaser has the corporate power
and authority to enter into, execute and deliver this Agreement and to
consummate the transactions contemplated by this Agreement.
3.2.3 Corporate Authorization. All corporate action on the
part of Purchaser, and its directors and shareholders necessary for the
authorization, execution, delivery and performance by Purchaser of this
Agreement and the consummation of the transactions contemplated by this
Agreement has been taken.
3.2.4 Binding and Enforceable Agreement. This Agreement has
been duly executed and delivered by Purchaser and is a valid and binding
agreement of Purchaser, enforceable in accordance with its terms.
3.2.5 Consents. Except as provided in clause (b) of Section
3.2.6, all consents, approvals, qualifications, licenses, orders or
authorizations of, or filings with, any governmental authority required in
connection with Purchaser's valid execution, delivery or performance of this
Agreement have been obtained, given or made.
3.2.6 No Conflict. Neither the execution and delivery of this
Agreement by Purchaser nor the consummation of the transactions contemplated by
this Agreement will
21
(a) conflict with or result in a breach of any provision of Purchaser's articles
of incorporation or bylaws, (b) subject to the expiration or early termination
of the waiting period (and any extension thereof) under the HSR Act, if
applicable to the transactions contemplated by this Agreement, conflict with any
existing provision of applicable law or any existing order, rule, regulation,
judgment or decree of any court, arbitrator or agency of government, (c)
violate, be in conflict with, result in a breach of, or constitute (with or
without notice or lapse of time or both) a default under (or give rise to any
right of termination, cancellation or acceleration) any of the terms conditions
or provisions of any note, bond, mortgage, indenture, license, agreement or
other instrument or obligation to which Purchaser is a party, or by which
Purchaser may be bound except for such default (or right of termination,
cancellation or acceleration) as to which requisite waivers or consents shall
either have been obtained by Purchaser prior to Closing or the obtaining of
which shall have been waived by Seller, or (d) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to Purchaser.
4. COVENANTS.
4.1 Preservation of Business. Seller shall, until Closing:
4.1.1 Use commercially reasonable efforts to operate each
Location in the ordinary and usual course, consistent with past practices;
4.1.2 Use commercially reasonable efforts to maintain the
Assets and the Real Property in their present state of repair, order and
condition, reasonable wear and tear excepted; and
4.1.3 Not sell, lease, or otherwise transfer or dispose of any
material Assets, or any interest therein, other than transfers and dispositions,
including the sale of Inventory and manufactured products made in the ordinary
course of business.
4.2 Retention of and Access to Books and Records.
4.2.1 Purchaser agrees to retain any Books and Records
delivered to Purchaser for a period of seven (7) years after the Closing Date.
Purchaser shall permit Seller (or its successors) and its Representatives to
inspect and copy, at Seller's (or such successor's) sole expense, any of the
Books and Records at any time during normal business hours, upon reasonable
advance notice.
4.2.2 After the seven-year period referred to in Section
4.2.1, Purchaser shall provide not less than thirty (30) nor more than sixty
(60) days notice to Seller (or its successors, if previously identified by
notice to Purchaser) prior to any proposed destruction or disposition of any of
the Books and Records. Any such notice shall identify with reasonable
specificity the Books and Records to be destroyed or disposed of and the date on
which such destruction or disposition will occur. If the recipient of any such
notice wishes to obtain any of the Books or Records to be destroyed or disposed
of, it may do so by giving notice to Purchaser at any time prior to the
scheduled date for destruction or disposition. All out-of-pocket costs of
delivering any such Books and Records to a requesting party shall be paid by
such party.
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4.3 Reasonable Access to Records and Certain Personnel. As long as
the Case is pending, (i) Purchaser shall permit Seller's counsel and other
professionals employed in the Case reasonable access to the Books and Records
(whether in documentary or data form) for the purpose of the continuing
administration of the Case (including, without limitation, the pursuit of any
avoidance, preference or similar action), which access shall include (a) the
right to copy, at Seller's expense, such documents and records as they may
request in furtherance of the purposes described above, and (b) Purchaser's
copying and delivering to Seller or its professionals such documents or records
as they may request, but only to the extent Seller or its professionals
furnishes Purchaser with reasonably detailed written descriptions of the
materials to be so copied and Seller reimburses Purchaser for the reasonable
costs and expenses thereof, and (ii) Purchaser shall provide Seller and such
professionals (at no cost to Seller) with reasonable access during regular
business hours to various personnel to whom Seller may need continued access
post-Closing to assist Seller in the continuing administration of the Case,
provided that such access does not unreasonably interfere with Purchaser's
normal business operations.
4.3.1 Seller shall until 90 days after Closing give to
Purchaser and to its accountants, counsel and other representatives reasonable
access during normal business hours to the properties, books, records, officers,
directors and employees of Seller and shall furnish promptly to Purchaser, upon
written request, (a) a copy of each report, notice, return or other document
filed or received by, or on behalf of, Seller relating to the Assets or the
Location and, (b) all other information pertaining to the Location, the Assets,
and operations and personnel of Seller related thereto as Purchaser may
reasonably request.
4.3.2 Insurance. To the extent Purchaser has the right by
operation of law to any insurance of Seller subsequent to Closing, Seller shall
cooperate with Purchaser to provide Purchaser with the benefits of such
insurance by assigning such benefits to Purchaser.
4.4 Transition Use and Services; License.
4.4.1 Purchaser shall have the right to use Seller's in-store
software used internally by Seller to maintain operations of the Location and
"Wickes" signage at each Location for a period of one hundred fifty (150) days
after the Closing Date free of charge (such period of use is hereinafter
referred to as the "Transition Period"). Seller shall have no obligation to
maintain software support or maintenance of any kind during the Transition
Period. At the end of the Transition Period, the Purchaser shall remove the
in-store software and signage from the Location and, at the option of Seller,
destroy the same or return it to Seller at Seller's cost.
4.4.2 Seller hereby grants to Purchaser a non-exclusive,
non-transferable, royalty-free limited license for the in-store software during
the Transition Period. Purchaser shall not cause or permit the following: (i)
the reverse engineering, disassembly or decompilation of the in-store software,
or (ii) the in-store software to be used by, or disclose all or any part of the
in-store software, to any other person. The copyright, patent, and all other
intellectual property rights in the in-store software are and shall remain the
property of Seller.
4.4.3 Except as specifically provided herein or as may be
otherwise agreed in writing by Seller and Purchaser, as of the Closing Date, all
data processing,
23
accounting, insurance, banking, legal, communications, and other services and
products provided by Seller in respect of the Location and the Assets, and any
prior agreements or understandings (written or oral) with respect thereto, shall
terminate and Purchaser shall not be entitled to any on-going benefit thereof.
4.4.4 Seller hereby grants to Purchaser a non-exclusive,
non-transferable, royalty-free, limited license for the use during the
Transition Period of the trade names "Wickes" and "Wickes Lumber" and related
brand names solely in the areas in which the Locations are located.
4.4.5 Lumber Trademark hereby grants to Purchaser a
non-exclusive non-transferable, royalty-free, limited license for the use during
the Transition Period of the Flying "W" trademark solely in the areas in which
the Locations are located.
4.5 Title Commitments and Surveys.
4.5.1 At least ten (10) business days prior to Closing, Seller
shall deliver to Purchaser or its affiliate for each parcel of Owned Real
Property, a current title commitment ("Title Commitment") from First American
Title Insurance Company ("Title Company") to issue an ALTA owner's title
policy of title insurance insuring Purchaser's fee interest in the Owned Real
Property in the amount of its Appraised Value ("Title Policy") showing only
exceptions to title acceptable to Purchaser ("Permitted Liens"), copies of all
documents of record referred in such Title Commitment, and a current ALTA/ACSM
survey in form reasonably acceptable to Purchaser. The cost of the survey and
fee premiums due for the title insurance issued at Closing shall be Seller's
obligation.
4.5.2 Within three (3) business days of receipt by Purchaser,
Purchaser or its affiliate shall acknowledge in writing that it has received and
reviewed each such Title Commitment and survey and set forth each objection to
title not acceptable to Purchaser or its affiliate.
4.5.3 If there exists on any such title Commitment any good
faith exceptions that are not Permitted Liens that Seller does not agree to
remove at Closing or insure against within five (5) days following notice of
such exceptions by Purchaser to Seller [or if a survey shall disclose such
matters that render title unmarketable, Purchaser may elect, either:
4.5.3.1 by written notice to Seller on or before
Closing, to not consummate the transactions contemplated hereto with respect
only to such Location at which the Owned Real Property is located which is the
subject of such unresolved title objection and survey defects, in which event,
with respect only to such Location (i) this Agreement, as it applies to such
Location, shall be terminated and of no further force and effect and (ii) this
Agreement shall continue in full force and effect with respect to any Location
that is not the subject of such unresolved title objections. If Purchaser's
umesolved title objections and survey defects apply to each Location that is the
subject of this Agreement, then the Bid Deposit and all interest accrued thereof
shall be returned to Purchaser and neither of the parties hereto shall have any
rights or obligations to the other hereunder except any obligations that
expressly survive the termination of this agreement; or
24
4.5.3.2 consummate the transactions contemplated hereby
subject to such additional exceptions and proceed to Closing without abatement
of the Purchase Price.
4.5.4 If required by Title Company, Seller agrees to execute,
acknowledge and deliver a standard and customary owner's title affidavit at
Closing and such other authority documents or other customary title clearance
documents as Title Company or Purchaser may reasonably request.
4.5.5 At the Closing, Seller shall deliver to the title
company the returns, questionnaires, certificates, affidavits and other
documents required in connection with the payment (or non-payment) of any real
property transfer taxes and other similar taxes and fees imposed by the state,
county or municipality in which the Owned Real Property is located in connection
with the transactions contemplated hereby (collectively, the "Real Estate Tax
Returns"). If the procedures required by the state, county, or municipality
require that any Real Estate Tax Returns be filed, reviewed or approved prior to
the Closing Date, Purchaser and Seller shall complete, sign and swear to the
Real Estate Tax Returns and deliver the same to the Title Company for delivery
to the appropriate authority sufficiently in advance of the Closing Date so as
to permit the sale contemplated hereby to be consummated by the Closing Date.
4.5.6 Seller and Purchaser shall enter into a closing
statement at closing setting forth all closing credits and prorations and Seller
and Purchaser shall enter into any and all customary conveyance and closing
documents as are reasonable and appropriate for the closing transactions.
4.6 Bidding Procedures and Approval Order
4.6.1 Bidding Procedures. Promptly following execution of this
Agreement, Wickes shall file with the Bankruptcy Court a motion, notices and a
proposed order, as may be appropriate, the form of which shall have been
reviewed and approved by Purchaser (the "Bidding Procedures Motion"), seeking
the approval of the form of this Agreement, the bidding procedures (including
matters relating to bid protection and the payment of a breakup fee to Purchaser
if it is not the successful bidder for the Assets) and auctioning of the Assets
and authorizing the observance and performance of such terms by Wickes and
Purchaser during the pendancy of the Bankruptcy Case, subject to Wickes' duties
to its creditors and the bankruptcy estate. Purchaser's obligations hereunder
shall be subject to the entry by the Bankruptcy Court of an order granting the
Bidding Procedures Motion (or a motion that is consistent in all material
respects with the Bidding Procedures Motion.)
4.6.2 Approval Order. Promptly following the auction
referenced in Section 4.6.1, if Purchaser is the successful bidder for the
Assets, Wickes shall seek approval from the Bankruptcy Court of an order (the
"Approval Order") which (i) approves the sale of the Assets to Purchaser on the
terms and conditions set forth in this Agreement and authorizes Seller to
proceed with the transactions herein contemplated, (ii) includes a specific
finding that Purchaser is a good faith purchaser of the Assets and is entitled
to the protection afforded by Section 363(m) of the Bankruptcy Code, (iii)
states that the sale of the Assets to Purchaser shall be free and clear of all
Encumbrances whatsoever (except as expressly provided in this Agreement), and
(iv) approves Seller's assumption and assignment to Purchaser of the
25
Designated Executory Contracts pursuant to Section 365 of the Bankruptcy Code.
The form of the Approval Order shall be in a form and substance reasonably
acceptable to Purchaser.
4.6.3 Taking of Necessary HSR Act Action.
4.6.3.1 If the HSR Act is applicable to the transactions
contemplated by this Agreement, each of Purchaser and Seller shall (i) as soon
as practicable after the entry by the Bankruptcy Court of an order granting the
Bidding Procedures Motion (or a motion that is consistent in all material
respects with the Bidding Procedures Motion), file such applications, notices
and requests as may be required or advisable to be filed by it pursuant to the
HSR Act in connection with the transactions contemplated hereby, (ii) furnish
each other with copies of all documents and correspondence (A) prepared by or on
behalf of it for submission to any governmental authority and (B) received by or
on behalf of it from any governmental authority, in each case in connection with
the transactions contemplated hereby, and (iii) consult with and keep each other
informed as to the status of such matters. To the extent that any application,
notice or request so filed by a party contains any significant information
relating to the other party hereto or any of its affiliates, prior to submitting
such application, notice or request to any governmental authority, the party
making the filing will permit the other party to review such information and
will consider in good faith the suggestions of such party with respect thereto.
A party shall have the right to approve any such information that relates to
such party, its affiliates or the Assets (which approval shall not be
unreasonably withheld).
4.6.3.2 If the HSR Act is applicable to the transactions
contemplated by this Agreement, at the Closing Seller shall reimburse Purchaser
for the HSR filing fee by crediting such fee against the Purchase Price.
4.6.3.3 Each of Purchaser and Seller shall cooperate
with each other in the preparation and filing with any governmental authority of
any applications, notices and responses to requests for additional information
from governmental authorities including, without limitation, the filing by
Seller with the appropriate New Jersey government authority of a
non-applicability affidavit with respect to the Kenvil, New Jersey Location.
Without limiting the foregoing, Seller shall provide such information as
Purchaser may reasonably request for inclusion in such applications, notice and
responses.
5. CONDITIONS TO OBLIGATIONS OF PURCHASER AND SELLER.
5.1 Conditions to Obligations of Purchaser. Notwithstanding any
other provision of this Agreement, the obligation of Purchaser to purchase the
Assets is subject to the satisfaction or waiver in writing, on or before the
Closing Date, except as specifically set forth hereafter, of the following
conditions:
5.1.1 Representations and Warranties; Covenants. All
representations and warranties of Seller contained in this Agreement and in the
certificates and other instruments delivered by Seller to Purchaser in
connection with this Agreement shall be true and correct in all material
respects at and as of the Closing Date as though made at and as of such time,
and Seller shall have performed and complied with all material covenants,
obligations
26
and conditions required by this Agreement to be performed or complied with prior
to or on the Closing Date;
5.1.2 Approval Order and Other Consents. The Approval Order
shall have been entered by the Bankruptcy Court, it shall not have been
rescinded, and no stay pending appeal shall be pending. All permits, approvals,
authorizations and consents of governmental bodies (including the expiration or
early termination of the waiting period and (any extension thereof) under the
HSR Act) or third parties (including without limitation any applicable
shareholder consent) necessary for the consummation of the transactions
contemplated herein shall have been obtained.
5.1.3 Quitclaim Deeds/Assignment and Assumption Agreement.
Seller shall have executed, acknowledged and delivered to Purchaser the
Quitclaim Deeds for the Owned Real Property conveying the Owned Real Property to
Purchaser free and clear of all Encumbrances except Permitted Liens and the
Assignment and Assumption Agreement described in Section 2.13.3.4.
5.1.4 Damage to or Destruction of the Assets. Seller shall
bear all risk of loss with respect to the Assets prior to the Closing Date.
Seller agrees to continue to carry or cause to be carried to the Closing Date
the insurance coverage which is presently carried relating to the Assets. In the
event of any damage to or loss or destruction of an Asset (other than normal
wear and tear) (a "Loss") between the date of this Agreement and the Closing
Date, (i) Purchaser shall not be entitled to terminate this transaction, and
(ii) the Purchase Price shall be reduced by an amount equal to the estimated
cost to repair or restore the Asset to substantially its condition immediately
prior to the occurrence of such Loss (to the extent, if any, that Seller has not
completed such repair or restoration). The estimated cost to repair or restore
the Asset to substantially its condition immediately prior to the occurrence of
such Loss shall be agreed to by Seller and Purchaser or, if they are unable to
agree, shall be determined by an independent, qualified insurance adjuster
selected by the parties (or, if they are unable to agree on such selection, one
appointed by the Bankruptcy Court upon application by either party). Seller
shall be entitled to retain any insurance proceeds paid or payable on account of
such Loss.
5.1.5 Documents of Transfer. Seller shall have provided to
Purchaser the Closing deliveries set forth in Section 2 and any documents
necessary to transfer ownership of the Assets to Purchaser, free and clear of
all Encumbrances except as provided in Section 3.1.4.
5.2 Conditions to Obligations of Seller. Notwithstanding any other
provision of this Agreement, the obligation of Seller to consummate the
transactions contemplated by this Agreement is subject to the satisfaction or
waiver in writing, on or before the Closing Date, of the following conditions:
5.2.1 Representations and Warranties; Covenants. All
representations and warranties of Purchaser contained in this Agreement and in
the certificates and other instruments delivered by Purchaser to Seller in
connection with this Agreement shall be true and correct in all material
respects at and as of the Closing Date as though made at and as of such time,
and Purchaser shall have performed and complied with all material covenants,
27
obligations and conditions required by this Agreement to be performed or
complied with by Purchaser prior to or on the Closing Date.
5.2.2 Approval Order; HSR Act. The Approval Order shall have
been entered by the Bankruptcy Court, its shall not have been rescinded, and no
stay pending appeal shall be pending. The waiting period (and any extension
thereof) under the HSR Act shall have expired or been terminated.
5.2.3 Purchase Price. Purchaser shall have paid to Seller the
amounts to be paid at Closing pursuant to Section 2.5 hereof.
6. MISCELLANEOUS.
6.1 Further Assurances. Seller and Purchaser will, from time to time
on or after the Closing Date, execute and deliver to the other parties all such
further assignments, endorsements and other documents as Purchaser or Seller,
as the case may be, reasonably requests in order to complete the transactions
contemplated by this Agreement.
6.2 Amendments and Waivers. The provisions of this Agreement may be
amended only by the written agreement of all of the parties to this Agreement.
Any waiver, permit, consent or approval of any kind or character on the part of
any party of any provisions or conditions of this Agreement must be made in
writing and shall be effective only to the extent specifically set forth in such
writing.
6.3 Assignment. Neither party shall assign any of its rights or
obligations under this Agreement without the prior written consent of the other
party. No assignment of this Agreement shall release the assigning party from
its obligations under this Agreement. Notwithstanding anything herein to the
contrary and subject to the immediately preceding sentence, Purchaser may assign
its right to purchase any of the Owned Real Property hereunder to an entity in
which either (i) Purchaser owns not less than fifty-one (51%) percent of the
ownership interests therein, or (ii) ▇▇▇▇▇ ▇▇▇▇▇, the largest shareholder of
Purchaser, is a general partner or manager. Purchaser's right to so assign its
interest herein to purchase any of the Owned Real Property shall not require
Seller's consent, provided Purchaser delivers written notice of such assignment
to Seller at least ten (10) days prior to Closing.
6.4 Successors and Assigns. This Agreement will bind and inure to
the benefit of the respective successors and assigns of the parties to this
Agreement.
6.5 Survival. Except for the covenants and agreements that are
expressly provided to be performed after the Closing Date, none of the
respective representations, warranties, covenants and agreements of Seller and
Purchaser herein, or in any certificates or other documents delivered prior to
or at the Closing, shall survive the Closing.
6.6 Termination.
6.6.1 This Agreement may be terminated at any time prior to
Closing by the mutual written agreement of Seller and Purchaser;
28
6.6.2 This Agreement may be terminated by Purchaser prior to
Closing by giving written notice to Seller if:
6.6.2.1 The Approval Order is not entered is not entered
on or before August 31, 2004; or
6.6.2.2 The conditions precedent to the obligations of
Purchaser to close which set forth in Section 5.1 are not satisfied on or before
August 31, 2004.
6.6.3 This Agreement may be terminated by Seller prior to
Closing by giving notice to Purchaser if:
6.6.3.1 The Approval Order is not entered on or before
August 31, 2004; or
6.6.3.2 The Approval Order has been entered but the
conditions precedent to the obligations of Seller to close which are set forth
in Section 5.2 are not satisfied on or before August 31, 2004.
6.6.4 Effect of Termination. In the event of termination of
this Agreement pursuant to this Section 6.6 and provided the terminating party
is not in breach of any obligation hereunder, (i) this Agreement shall forthwith
become null and void and have no further effect, (ii) neither of the parties
hereto or any of their respective advisers shall have any further obligation or
liability under the provisions of this Agreement (other than the provisions of
this Section 6) and Seller shall return or authorize release to Purchaser of its
Bid Deposit, together with all interest earned and accrued thereon.
6.7 Indemnification. Seller shall be responsible to Purchaser for,
and shall defend, indemnify, and hold Purchaser harmless from and against loss,
damage, liability, cost or expense, including, without limitation, those
relating to or arising from product liability claims, product sales, personal
injury and other tort claims and claims arising from any contract to which
Seller is or was a party (including reasonable attorneys' fees, legal expenses
and consultant's fees) (collectively, "Purchaser's Damages") resulting from or
relating to claims or demands made by third parties that Purchaser is a
successor to Seller by operation of law. Notwithstanding the foregoing, the
Seller shall not be required to pay any Purchaser's Damages which exceed the
amount of insurance available to Seller to pay Purchaser's Damages.
6.8 Interpretation. The words "include," "includes" and "including"
when used herein shall be deemed in each case to be followed by the words
"without limitation." The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever used herein, the singular
number shall include the plural, the plural shall include the singular, and the
use of any gender shall be applicable to both genders. All references to
monetary amounts are to currency of the United States of America.
6.9 Default. Time is of the essence of this Agreement. In any suit,
action or appeal to enforce this Agreement or any term or provision of this
Agreement, or to interpret this
29
Agreement, the prevailing party shall be entitled to recover its costs incurred,
including reasonable attorneys' fees at trial or on appeal.
6.10 Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
6.11 Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience of reference only and do not constitute a
part of this Agreement.
6.12 Notices. Any notices, requests, demands or other communications
required or permitted to be sent under this Agreement shall be delivered
personally, sent by electronic mail, sent by facsimile, sent by overnight
courier or mailed by registered or certified mail, return receipt requested, to
the following addresses, and shall be deemed to have been received on the day of
personal delivery or electronic mailing, upon confirmation of receipt of a
facsimile transmission, one business day after deposit with an overnight courier
or three business days after deposit in the mail:
If to Purchaser, to: Bradco Supply Corporation
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
With a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
Bradco Supply Corporation
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
If to Seller: Wickes Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: jogrady@,▇▇▇▇▇▇.▇▇▇
30
With a copy to: Schwartz, Cooper, ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇; rbendix@,▇▇▇▇.▇▇▇
and to:
▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇.▇▇▇▇▇▇▇@piperrudnick,com;
▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
and to:
Bridge Associates LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇-▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇;
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
and to:
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
8000 Sears Tower
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇;
▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
6.13 Governing Law. The validity, meaning and effect of this
Agreement shall be determined in accordance with the laws of the State of
Illinois applicable to contracts made and to be performed in that state.
31
6.14 Forum. Each party unconditionally consents and submits to the
exclusive jurisdiction of the Bankruptcy Court so long as the Bankruptcy Court
has jurisdiction over the matter, for any dispute arising between the parties
arising out of or relating to this Agreement and the transactions contemplated
hereby (and agrees not to commence any litigation relating thereto except in
such court). Any dispute between the parties, to the extent not governed by the
Bankruptcy Court, shall be subject to the exclusive jurisdiction of the state
and federal courts located in Chicago, Illinois. Each party waives any objection
to the laying of venue of any such litigation as provided herein, and agrees not
to plead that such litigation has been brought in an inconvenient forum.
6.15 Bulk Sales. To the extent applicable, Purchaser hereby waives
compliance with any bulk sales or other similar laws in any applicable
jurisdiction in respect of the transactions contemplated by this Agreement.
6.16 Entire Agreement. This Agreement, together with those documents
expressly referred to in this Agreement, constitutes the final agreement of the
parties concerning the matters referred to in this Agreement, and supersedes all
prior agreements and understandings.
6.17 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be an original, and all of which together
shall constitute one agreement. Facsimile transmission of any signed original
document, and retransmission of any signed facsimile transmission, shall be the
same as delivery of an original. At the request of any party, the parties will
confirm facsimile transmitted signatures by signing and delivering an original
document.
6.18 Schedules and Exhibits. The following Schedules and Exhibits
are attached to and form an integral part of this Agreement:
The Locations Schedule A
Designated Executory Contracts Schedule 1(a)
Real Property Leases Schedule 1(b)
Owned Equipment Schedule 1(c)
Owned Real Property Schedule 1(d)
Retained Personal Property Schedule 2.2.6
Assumed Liabilities Schedule 2.3
Inventory Procedures Schedule 2.6.1
Deposit Agreement Exhibit 2.10
▇▇▇▇ of Sale Exhibit 2.13.3.1
Quitclaim Deed Exhibit 2.13.3.2
Assignment of Leases Exhibit 2.13.3.3
Assignment and
Assumption Agreement Exhibit 2.13.3.4
32
The parties to this Agreement have executed this Agreement as of the 24th day of
June, 2004.
WICKES INC.
By: /s/ ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇. ▇'▇▇▇▇▇, President
GLC DIVISION, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇'▇▇▇▇▇, President
LUMBER TRADEMARK COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇'▇▇▇▇▇, President
BRADCO SUPPLY CORPORATION
By /s/ ▇▇▇▇▇ Regal
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Its CHAIRMAN
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