<PAGE>
Exhibit 10
ASSET PURCHASE AGREEMENT
DATED AS OF APRIL 8, 2005
AMONG
DELUXE PATTERN CORPORATION,
CERTAIN OF ITS AFFILIATES NAMED HEREIN,
VENTURE HOLDINGS COMPANY, LLC,
CERTAIN OF ITS AFFILIATES NAMED HEREIN,
AND
NEW VENTURE HOLDINGS, LLC
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS....................................................
1
1.1
Definitions...................................................
1
ARTICLE II PURCHASE AND
SALE............................................. 10
2.1 Purchased
Assets.............................................. 10
2.2 Excluded
Assets............................................... 12
2.3 Assumed
Liabilities........................................... 13
2.4 Excluded
Liabilities.......................................... 13
2.5 Assignments;
Cure Amounts..................................... 14
ARTICLE III PURCHASE
PRICE............................................... 14
3.1 Purchase
Price................................................ 14
3.2 Allocation of
Purchase Price.................................. 15
ARTICLE IV
CLOSING.......................................................
15
4.1 Closing
Date.................................................. 15
4.2 Payment on the
Closing Date................................... 15
4.3 Buyer's
Additional Deliveries................................. 16
4.4 Sellers'
Deliveries........................................... 16
ARTICLE V REPRESENTATIONS AND WARRANTIES OF
SELLERS...................... 17
5.1 Organization of
Sellers....................................... 17
5.2 Subsidiaries and
Investments.................................. 17
5.3 Authority of
Sellers.......................................... 17
5.4 Real
Property.................................................
18
5.5 Title to
Property............................................. 20
5.6
Taxes.........................................................
20
5.7 Absence of
Certain Developments............................... 20
5.8 Sellers'
Intellectual Property................................ 20
5.9 Employment
Matters............................................ 21
5.10 Sufficiency of
Assets......................................... 22
5.11 Compliance with Laws;
Governmental Permits.................... 22
5.12
Contracts.....................................................
23
5.13 Financial
Statements.......................................... 23
5.14 No Undisclosed
Liabilities.................................... 23
5.15
Litigation....................................................
23
5.16 Accounts
Receivable........................................... 24
5.17
Equipment.....................................................
24
5.18
Inventory.....................................................
24
5.19 Affiliate
Transactions........................................ 24
5.20 No
Finder.....................................................
24
5.21
Disclaimer....................................................
25
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ARTICLE VI REPRESENTATIONS AND WARRANTIES
OF BUYER....................... 25
6.1 Organization of
Buyer......................................... 25
6.2 Authority of
Buyer............................................ 25
6.3 No
Finder.....................................................
26
6.4 Payment of
Purchase Price..................................... 26
ARTICLE VII ACTION PRIOR TO THE CLOSING
DATE............................. 26
7.1 Investigation of
the Business by Buyer........................ 26
7.2 Preserve
Accuracy of Representations and Warranties........... 26
7.3 Third Party
Consents.......................................... 27
7.4 Governmental
Approvals........................................ 27
7.5 Operations Prior
to the Closing Date.......................... 28
7.6 Notification of
Certain Matters............................... 31
7.7
Insurance.....................................................
31
ARTICLE VIII ADDITIONAL
AGREEMENTS....................................... 31
8.1
Taxes.........................................................
31
8.2 Employees and
Employee Benefit Plans.......................... 32
8.3 Collection of
Receivables..................................... 33
8.4 Adequate
Assurances Regarding Seller Agreements............... 33
8.5 Performance
Under Seller Agreements........................... 34
8.6 Certain
Actions............................................... 34
8.7 Covenant Not to
Compete; Non-Solicitation..................... 34
8.8 No Liability for
Representations and Warranties............... 35
ARTICLE IX CONDITIONS TO
CLOSING......................................... 36
9.1 Conditions to
Each Party's Obligations to Effect the Closing.. 36
9.2 Conditions to
Obligations of Buyer............................ 36
9.3 Conditions to
Obligations of the Sellers...................... 37
ARTICLE X
TERMINATION....................................................
37
10.1
Termination...................................................
37
10.2 Notice of
Termination......................................... 38
10.3 Effect of
Termination......................................... 38
ARTICLE XI GENERAL
PROVISIONS............................................ 38
11.1 Survival of
Obligations....................................... 38
11.2 Confidential Nature of
Information............................ 38
11.3
Investigation.................................................
39
11.4 No Public
Announcement........................................ 40
11.5
Notices.......................................................
40
11.6 Successors and
Assigns........................................ 42
11.7 Access to Records
after Closing............................... 42
11.8 Entire Agreement;
Amendments; Schedules....................... 42
11.9
Interpretation................................................
43
11.10
Waivers.......................................................
43
11.11
Expenses......................................................
43
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11.12 Partial
Invalidity............................................ 43
11.13 Execution in
Counterparts..................................... 43
11.14 Further
Assurances............................................ 44
11.15 Governing
Law................................................. 44
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SCHEDULES
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SECTION SCHEDULE*
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1.1(a) Persons With
Knowledge
1.1(b) Third Party
Consents
2.1(e) Seller Agreements
2.1(n) Foreign
Subsidiaries
2.2(d) Excluded Assets
2.2(g) Excluded Accounts
Receivable
2.2(i) Actions Against Other
Sellers
2.3(g) Assumed General
Unsecured Claims
5.2
Subsidiaries and Investments
5.4(a) Owned Real
Property
5.4(b) Leased Real
Property
5.5
Title to Property
5.6
Taxes
5.8(a) Intellectual
Property
5.8(b) Intellectual Property
Licenses and Agreements
5.8(c) Intellectual Property
Violations, Claims and Actions
5.9(c) Unfair Labor Practice,
Charges and Other Employee-Related
Complaints or Claims
5.9(d) Labor and Collective
Bargaining Agreements
5.13 Financial
Statements
5.15
Litigation
5.19 Affiliate
Transactions
8.2(a) Employees Not Given
Offers
8.2(b) Employee Benefit
Plans
8.2(d) Employee and
Consulting Agreements
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EXHIBITS
EXHIBIT A - DELUXE ENTITIES
EXHIBIT B - VENTURE ENTITIES
EXHIBIT C - ASSIGNMENT AND ASSUMPTION
AGREEMENT*
EXHIBIT D - BILL OF SALE*
EXHIBIT E - ASSIGNMENT OF PATENTS*
EXHIBIT F - ASSIGNMENT OF TRADEMARKS*
EXHIBIT G - ASSIGNMENT OF COPYRIGHTS*
EXHIBIT H - ASSIGNMENT OF DOMAIN NAMES*
EXHIBIT I - KEY EMPLOYEE RETENTION PROGRAM
TERMS*
EXHIBIT J - LOAN AGREEMENTS*
EXHIBIT K - SALE ORDER*
*Note: Copies of the Schedules / omitted
Exhibits will be furnished
supplementally to the Securities and Exchange Commission upon
request.
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ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT, dated as of April 8, 2005 (this
"Agreement"), among Deluxe Pattern
Corporation, a Michigan corporation ("Deluxe
Pattern"), and certain of its Affiliates
listed in Exhibit A attached hereto
(together with Deluxe Pattern, the "Deluxe
Entities"), Venture Holdings Company,
LLC, a Michigan limited liability company
("Venture Holdings"), and certain of
its Affiliates listed in Exhibit B attached
hereto (together with Venture
Holdings, the "Venture Entities", and
together with the Deluxe Entities,
"Sellers") and New Venture Holdings, LLC, a
Delaware limited liability company
("Buyer").
WHEREAS, the Venture Entities are, among other things, engaged in
the
business of the supply, design, system
integration and manufacture of interior
and exterior plastic components, modules
and systems for the automotive industry
and other industries (the "Venture
Business");
WHEREAS, the Deluxe Entities are, among other things, engaged in
the
business of the ownership of real estate,
machinery and equipment and
intellectual property and the performance
of manufacturing related and
administrative services (including design
work and tooling) and marketing
formats integral to the supply, design,
system integration and manufacture of
interior and exterior plastic components,
modules and systems for the automotive
industry (the "Deluxe Business", and
together with the Venture Business, the
"Business");
WHEREAS, each of the Venture Entities and Deluxe Entities has
commenced reorganization proceedings by
filing a voluntary petition for relief
with the Bankruptcy Court under Chapter 11
of the Bankruptcy Code (each, a
"Filing" and together, the "Filings");
and
WHEREAS, Sellers desire to sell or cause to be sold to Buyer,
and
Buyer desires to purchase, subject to the
approval of the Bankruptcy Court
pursuant to Section 363 of the Bankruptcy
Code, substantially all of the assets
of the Business, together with Buyer
assuming certain liabilities related
thereto, all on the terms and subject to
the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, it is
hereby agreed between Sellers and Buyer
as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS.
In this Agreement, the following terms have the meanings
specified or referred to in this Section
1.1 and shall be equally applicable to
both the singular and plural forms. Any
agreement referred to below shall mean
such agreement as amended, supplemented and
modified from time to time to the
extent permitted by the applicable
provisions thereof and by this Agreement.
"ACTION" means any legal action, suit or arbitration, or any
inquiry,
proceeding or investigation, by or before
any Governmental Authority.
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"AFFILIATE" means, with respect to any specified Person at any
time,
(a) each Person directly or indirectly
controlling, controlled by or under
direct or indirect common control with such
specified Person, (b) each Person
who is at such time an officer or director
of, or direct or indirect beneficial
holder of at least 10% of any class of the
equity interests of, such specified
Person, (c) each Person that is managed by
a common group of executive officers
and/or directors as such specified Person,
(d) any relative (including by
marriage or adoption) (i) of each officer,
director or holder described in
clause (b) and (ii) if such specified
Person is an individual, of such specified
Person and (e) each Person of which such
specified Person or an Affiliate (as
defined in clauses (a) through (d)) thereof
will, directly or indirectly,
beneficially own at least 10% of any class
of equity interests at such time.
"AGENT" has the meaning specified in Section 1.1.5. of the
Settlement
Agreement.
"AGREEMENT" has the meaning specified in the first paragraph.
"ALLOCATION SCHEDULE(S)" has the meaning specified in Section
3.2.
"ANCILLARY DOCUMENTS" means the Bill of Sale, Deeds, Assignment
and
Assumption Agreement, Assignment of
Patents, Assignment of Trademarks,
Assignment of Copyrights and Assignment of
Domain Names.
"ASSIGNMENT AND ASSUMPTION AGREEMENT" means the Assignment and
Assumption Agreement in substantially the
form of Exhibit C.
"ASSIGNMENT OF COPYRIGHTS" has the meaning specified in Section
4.4(b).
"ASSIGNMENT OF DOMAIN NAMES" has the meaning specified in
Section
4.4(b).
"ASSIGNMENT OF PATENTS" has the meaning specified in Section
4.4(b).
"ASSIGNMENT OF TRADEMARKS" has the meaning specified in Section
4.4(b).
"ASSUMED LIABILITIES" has the meaning specified in Section 2.3.
"AVAILABLE EMPLOYEES" has the meaning specified in Section
8.2(a).
"AVOIDANCE ACTIONS" means any and all claims for relief of
Sellers
under Chapter 5 of the Bankruptcy Code.
"AUCTION DATE" has the meaning specified in Section 2.1.
"BANKRUPTCY CODE" means 11 U.S.C. Sections 101 et seq.
"BANKRUPTCY COURT" means the United States Bankruptcy Court for
the
Eastern District of Michigan, Southern
Division or any other court of competent
jurisdiction agreed to by Buyer and
Sellers.
"BANKRUPTCY PROCEEDINGS" means the proceedings in the Bankruptcy
Court
involving Sellers.
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"BILL OF SALE" means the Bill of Sale substantially in the from
of
Exhibit D.
"BUSINESS" has the meaning specified in the second recital.
"BUYER" has the meaning specified in the first paragraph.
"CLOSING" has the meaning specified in Section 4.1.
"CLOSING DATE" has the meaning specified in Section 4.1.
"COBRA" means the Consolidated Omnibus Budget Reconciliation Act
of
1985.
"CODE" means the Internal Revenue Code of 1986, as amended.
"CONTRACTS" means all contracts, agreements, indentures, notes,
bonds,
Leases, leases, subleases, licenses,
sublicenses, commitments, indemnities,
assignments, understandings and
arrangements, whether written or oral.
"COPYRIGHTS" means all United States and foreign copyright
interests
in any original work of authorship, whether
registered or unregistered,
including all United States copyright
registrations or foreign equivalent, all
applications for registration or foreign
equivalent, all moral rights, all
common-law rights, and all rights to
register and obtain renewals and extensions
of copyright registrations, together with
all other copyright interests accruing
by reason of international copyright
convention.
"COURT ORDER" means any judgment, order, award or decree of any
foreign, federal, state, local or other
court or tribunal and any award in any
arbitration proceeding.
"CREDIT BID" has the meaning specified in Section 1.1.18. of
the
Settlement Agreement.
"DEEDS" means the deeds transferring the Owned Real Property to
be
delivered pursuant to Section 4.4(a).
"DELUXE ENTITIES" has the meaning specified in the first
paragraph.
"DELUXE PATTERN" has the meaning specified in the first
paragraph.
"DISCLOSURE SCHEDULE" means the written information that Sellers
have
prepared and delivered to Buyer pursuant to
the terms of this Agreement setting
forth information regarding the Business,
the Purchased Assets, the Assumed
Liabilities and other matters with respect
to Sellers specified therein.
"DOMAIN NAMES" is any alphanumeric designation registered with
or
assigned by a domain name registrar,
registry or domain name registration
authority as part of an electronic address
on the Internet. A Domain Name may or
may not also be a Trademark.
"EGTRRA" means the Economic Growth and Tax Relief Reconciliation
Act
of 2001.
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"ELECTRONIC DATA ROOM" means (i) documents posted by Sellers on
www.intralinks.com and (ii) four CD-ROMs
provided to Buyer by Sellers labeled as
follows: "Venture Holdings Electronic Data
Room North America & Europe
3/9/05-#D1-2B," "Venture Holdings
Electronic Data Room Deluxe & Revised Model
3/9/05-#D2-8," "Data Room Documents France"
and "Data Room Documents Bohemia".
"ENCUMBRANCE" means any lien (statutory or other), claim,
charge,
security interest, mortgage, deed of trust,
pledge, hypothecation, assignment,
license, conditional sale or other title
retention agreement, preference,
priority or other security agreement or
preferential arrangement of any kind or
nature, and any easement, charges,
encroachment, covenant, restriction, right of
way, state of fact, defect in title or
other encumbrance of any kind.
"ENVIRONMENT" means all air, water vapor, surface water,
groundwater,
drinking water supply or land, including
land surface or subsurface, and
includes all fish, wildlife, biota and all
other natural resources.
"ENVIRONMENTAL LAWS" means all foreign, federal, state or local
environmental, land use, health, chemical
use, safety and sanitation laws,
statutes, ordinances, rules, regulations
(including with respect to the
Business, specific Environmental Permits
and Orders) and codes, as in effect on
the date hereof, relating to the protection
of the Environment and/or governing
the discharge of pollutants or the use,
storage, treatment, generation,
transportation, processing, handling,
production or disposal of Hazardous
Substances, including but not limited to
the Resource Conservation and Recovery
Act of 1976 as amended ("RCRA"), the Clean
Air Act as amended, the Comprehensive
Environmental Response, Compensation and
Liability Act of 1980 as amended
("CERCLA"), the Toxic Substances Control
Act, as amended, the Occupational
Safety and Health Act of 1970 and state and
foreign statutes similar to or based
upon the foregoing, as the same are in
effect on the date hereof.
"ENVIRONMENTAL PERMITS" means all approvals, authorizations,
consents,
permits, licenses, registrations and
certificates required by any applicable
Environmental Laws relating to: (A)
pollution or protection of the Environment
including those relating to a Release of
any Hazardous Substances into the
Environment, (B) the use, treatment,
storage, disposal, generation, transport or
handling of pollutants, contaminants or
chemicals, or industrial, toxic or
Hazardous Substances, or (C) the ownership,
use, operation, cleanup or
remediation of leased or owned
properties.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as
amended.
"EXCLUDED ACTION" means the Action by certain Sellers against
Autoliv
ASP, Inc. for breach of contract, which
Action is presently pending in the
United States District Court for the
Eastern District of Michigan.
"EXCLUDED ASSETS" has the meaning specified in Section 2.2.
"EXCLUDED LIABILITIES" has the meaning specified in Section
2.4.
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"EXIT CASH REQUIREMENT" has the meaning specified in Section
1.1.34.
of the Settlement Agreement.
"FACILITIES" means any plant, building, facility, structure,
underground storage tank, equipment or
unit, or other assets owned, leased or
operated by any of Sellers and used in the
conduct of the Business.
"FILING" has the meaning specified in the third recital.
"FINAL ORDER" means, for purposes of the consents required from
any
Governmental Authority, an action by any
such Governmental Authority that has
not been reversed, stayed, enjoined, set
aside, annulled or suspended, or where
the time period for any further action by
such Governmental Authority has
expired without further action by such
Governmental Authority. Notwithstanding
the foregoing, in the case of any consent
required of a Governmental Authority,
such consent by such Governmental Authority
shall be deemed a Final Order even
if there is a timely request for stay,
appeal, reconsideration, review or
rehearing challenging the action by such
Governmental Authority, unless in the
reasonable opinion of Buyer (x) such
challenge has a substantial probability of
success on its merits or (y) such
challenge, if successful, would reasonably be
expected to have a Material Adverse
Effect.
"FINAL SALE ORDER" means a Sale Order that has not been
reversed,
stayed, modified or amended, and for which
the time to appeal, seek certiorari
or motion for reargument or rehearing has
expired, and for which no appeal,
petition for certiorari or motion for
reargument or rehearing has been timely
taken.
"FINANCIAL STATEMENTS" has the meaning specified in Section
5.13(a).
"GAAP" means generally accepted accounting principles in the
United
States.
"GOVERNMENTAL AUTHORITY" means any foreign, federal, state, local
or
other government, governmental, statutory
or administrative authority,
regulatory body or commission or any court,
tribunal or judicial or arbitral
body.
"GOVERNMENTAL PERMITS" means all franchises, grants,
authorizations,
licenses, permits, easements, variances,
exceptions, consents, certificates,
approvals, clearances and orders of any
Governmental Authority which are
necessary or customary for Sellers to own,
lease and operate their properties
and assets or to carry on the Business as
it is now being conducted or proposed
to be conducted.
"HAZARDOUS SUBSTANCE" means any substance, whether solid, liquid
or
gaseous, that is listed, defined or
regulated as a "hazardous substance,"
"hazardous waste," or "solid waste," or is
otherwise classified as hazardous or
toxic, in or pursuant to any Environmental
Law; or which is or contains
asbestos, radon, any polychlorinated
biphenyl, urea formaldehyde foam
insulation, explosive or radioactive
material, or motor fuel or other petroleum
hydrocarbons; or which causes or poses a
threat to cause contamination or a
nuisance or a hazard to the Environment or
to the health or safety of persons.
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"HSR ACT" means the Hart-Scott-Rodino Antitrust Improvements Act
of
1976, as amended, and the relevant rules
and regulations thereunder.
"INTELLECTUAL PROPERTY" means all intellectual property owned, used
or
licensed (as licensor or licensee) by a
Seller, or that has been used in the
Business of a Seller, or in any product,
service, technology or process
currently or formerly offered by a Seller,
or currently under development by a
Seller, including all Software, Copyrights,
Patents, Trademarks, Trade Secrets
and Domain Names, all documentation and
media constituting, describing or
relating to the above, including memoranda,
manuals, technical specifications
and other records wherever created
throughout the world, and the right to sue
for and recover damages, profits and any
other remedy for past, present, or
future infringement or other violation
relating to any of the foregoing.
"INTEREST" means any claim defined in Section 101(5) of the
Bankruptcy
Code, as well as any other claim, judgment,
demand, confidentiality restriction,
option, right of first refusal, right to
any equitable remedy and restrictions
of any kind or nature.
"INVENTIONS" means novel devices, processes, compositions of
matter,
methods, techniques, improvements,
observations, discoveries, apparatuses,
machines, designs, expressions, theories
and ideas, whether or not patentable.
"INVENTORY" has the meaning specified in Section 2.1(c).
"IRS" means the Internal Revenue Service.
"KERP" means the Key Employee Retention Program of certain Sellers
in
accordance with the terms set forth on
Exhibit I attached hereto, as approved by
the Bankruptcy Court on March 11, 2005.
"KNOW-HOW" means scientific, engineering, mechanical,
electrical,
financial, marketing or practical knowledge
or experience useful in the
operation of the Business.
"KNOWLEDGE" means, with respect to Sellers, as to a particular
matter,
the actual knowledge after reasonable
investigation of the Persons set forth on
Schedule 1.1(a).
"LEASED REAL PROPERTY" has the meaning specified in Section
5.4(b).
"LEASES" has the meaning specified in Section 5.4(b).
"LIABILITY" means any debt, liability or obligation (whether direct
or
indirect, known or unknown, absolute or
contingent, accrued or unaccrued,
liquidated or unliquidated, or due or to
become due), and including all costs
and expenses relating thereto.
"LICENSE" has the meaning specified in Section 5.8(b).
"LOAN AGREEMENTS" means the lending agreements set forth in Exhibit
J.
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"MATERIAL ADVERSE EFFECT" means any fact, condition, change or
event
that would, individually or in the
aggregate, materially and adversely affect
the Purchased Assets or the Business
(excluding the Excluded Assets and the
Excluded Liabilities), taken as a whole,
except to the extent that any such
fact, condition, change or event results
from or arises out of (i) the Filings,
(ii) the announcement of this Agreement or
the consummation of the transactions
contemplated hereby, or (iii) changes in
general economic conditions or changes
affecting the industry in which the
Business operates generally.
"NON-TRANSFERRED SUBSIDIARY" has the meaning specified in
Section
2.2(f).
"ORDER" means any order, injunction, judgment, decree, ruling,
writ,
assessment or arbitration award of a
Governmental Authority.
"OWNED REAL PROPERTY" has the meaning specified in Section
5.4(a).
"PATENTS" means United States and foreign patents (including
certificates of invention and other patent
equivalents), patent applications,
provisional applications and patents
issuing therefrom, as well as any
continuations, continuations-in-part,
divisions, extensions, reexaminations,
reissues, renewals, patent disclosures,
Inventions (whether or not patentable or
reduced to practice) or improvements
thereto.
"PERMITTED ENCUMBRANCES" means (a) liens for Taxes and other
governmental charges and assessments
arising in the ordinary course of the
Business that are not yet due and payable
or that are being contested in good
faith and are fully reserved against on the
Reference Date Balance Sheet, (b)
liens of landlords and liens of carriers,
warehousemen, mechanics, molders,
fabricators and tool or die makers,
personal property lessors and materialmen
and other like liens arising in the
ordinary course of the Business for sums not
yet due and payable or that are being
contested in good faith and are fully
reserved against on the Reference Date
Balance Sheet, and (c) other non-monetary
restrictions, covenants, easements, rights
of way or imperfections on real
property that do not prohibit, and are not
violated by, the consummation of the
transactions contemplated by this
Agreement, and that do not materially detract
from the value or the use of such real
property for its current use and do not,
and are not reasonably likely to, have a
Material Adverse Effect.
"PERSON" means any individual, corporation, partnership, joint
venture, limited liability company,
association, joint-stock company, trust,
unincorporated organization or Governmental
Authority.
"PURCHASE PRICE" has the meaning specified in Section 3.1.
"PURCHASED ASSETS" has the meaning specified in Section 2.1.
"REFERENCE DATE" means February 28, 2005.
"REFERENCE DATE BALANCE SHEET" means the unaudited pro forma
balance
sheet of the Business as of the Reference
Date which has been delivered to
Buyer.
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"RELEASE" means any past or present spilling, leaking, pumping,
pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping
or disposing of a Hazardous Substance into
the Environment (including the
abandonment or discharging of barrels,
containers and other closed receptacles
containing any Hazardous Substance).
"REPRESENTATIVES" means with respect to any Person, its
officers,
employees, counsel, accountants, financial
advisors, consultants and other
representatives.
"REQUIRED CONSENTS" means, collectively, (a) the filings by
Sellers
and Buyer required by the HSR Act and the
expiration or earlier termination of
all waiting periods under the HSR Act, and
(b) consents required under foreign
anti-trust or competition laws.
"REQUIREMENTS OF LAW" means any foreign, federal, state and
local
laws, statutes, regulations, rules, codes,
ordinances or requirements enacted,
adopted, issued or promulgated by any
Governmental Authority (including those
pertaining to electrical, building, zoning,
subdivision, land use, environmental
and occupational safety and health
requirements, employees and employee
benefits, patient confidentiality, the
health care industry and third-party
reimbursement) or common law.
"SALE HEARING" means the hearing in the Bankruptcy Court to
consider
approval of the transactions contemplated
under this Agreement and all Ancillary
Documents.
"SALE ORDER" means an order of the Bankruptcy Court, substantially
in
the form of Exhibit K, approving this
Agreement and the Ancillary Documents, and
authorizing, pursuant to all applicable
sections of the Bankruptcy Code, all of
the transactions and agreements
contemplated hereby and thereby, which order
shall not have been stayed, vacated or
otherwise rendered ineffective.
"SALE PROCEDURES ORDER" means the February 1, 2005 order of the
Bankruptcy Court approving an auction and
bidding procedures for the sale of
substantially all of the Sellers'
assets.
"SELLER AGREEMENTS"
has the meaning specified in Section 2.1(e).
"SELLERS" has the meaning specified in the first paragraph.
"SELLER GROUP MEMBER" means Sellers and their Affiliates and
their
respective successors and assigns.
"SENIOR
LENDERS" has the meaning specified in the Settlement
Agreement.
"SETTLEMENT AGREEMENT" means that certain Global Settlement
Agreement
dated as of March 31, 2005, by and among
JPMorgan Chase Bank, N.A., as
administrative agent, the Official
Committee of Unsecured Creditors, certain of
the Venture Entities and the Deluxe
Entities.
"SOFTWARE" means computer software programs and software
systems,
including all databases, compilations, tool
sets, compilers, higher level or
"proprietary" languages, related
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documentation, technical manuals and
materials, whether in source code, object
code or human readable form, and any
licenses or rights with respect to the
foregoing.
"SUBSIDIARY" means any entity in which a Seller or a
Transferred
Subsidiary has an equity interest, directly
or indirectly.
"SUPPLIER DEPOSITS" means all deposits and pre-payments made by
any
Seller to suppliers as advance payments
with respect to materials, services,
goods or supplies to be received.
"TAX" means (i) any federal, state, local or foreign net
income,
alternative or add-on minimum, ad valorem,
value-added, gross income, gross
receipts, windfall profits, severance,
production, environmental (including
taxes under Section 59A of the Code),
property, sales, use, transfer, stamp,
gains, license, excise, employment,
payroll, withholding or minimum tax, or any
other tax, custom, duty, governmental fee
or other like assessment or charge of
any kind whatsoever, together with any
interest or any penalty, addition to tax
or additional amount imposed by any
Governmental Authority; and (ii) any
liability of Sellers for the payment of
amounts of a type described in clause
(i) as a result of being a member of an
affiliated, consolidated, combined or
unitary group, or as a result of any
obligation of Sellers under any Tax sharing
arrangement or Tax indemnity agreement.
"TAX RETURN" means any return, report or similar statement required
to
be filed with respect to any Taxes
(including any attached schedules), including
any information return, claim for refund,
amended return or declaration of
estimated Tax.
"TERMINATION DATE" has the meaning specified in Section 10.1.
"THIRD PARTY CONSENTS" means the consents, approvals and waivers
set
forth on Schedule 1.1(b).
"TRADE PAYABLES" means accounts payable to trade creditors (other
than
employees of Sellers) for goods and
services furnished to the Business.
"TRADEMARKS" means United States, state and foreign trademarks,
service marks, logos, slogans, trade dress
and trade names (including all
assumed or fictitious names under which the
Business has been conducted), and
any other indicia of source or sponsorship
of goods and services, designs and
logotypes related to the above, in any and
all forms, whether registered or
unregistered, and registrations and pending
applications to register the
foregoing (including intent to use
applications), and all goodwill related to
the foregoing.
"TRADE SECRETS" means confidential ideas, trade secrets,
Know-How,
concepts, methods, processes, formulae,
algorithms, reports, data, customer
lists, mailing lists, business plans,
market surveys, market research studies,
information contained on drawings and other
documents, information relating to
research, development or testing, or other
proprietary and confidential
information.
"TRANSFER TAXES" has the meaning specified in Section 8.1(b).
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"TRANSFERRED EMPLOYEES" has the meaning specified in Section
8.2(a).
"TRANSFERRED SUBSIDIARY" has the meaning specified in Section
2.1(n).
"TREASURY REGULATIONS" means the regulations promulgated by the
U.S.
Treasury Department pursuant to the
Code.
"VENTURE BUSINESS" has the meaning specified in the first
recital.
"VENTURE ENTITIES" has the meaning specified in the first
paragraph.
"VENTURE HOLDINGS" has the meaning specified in the first
paragraph.
"WARN ACT" means the Worker Adjustment and Retraining
Notification
Act.
"WINGET ACTIONS" means Actions against the Winget Defendants.
"WINGET DEFENDANTS" has the meaning specified in the Settlement
Agreement.
ARTICLE II
PURCHASE AND SALE
2.1 PURCHASED
ASSETS. Upon the terms and subject to the conditions of this
Agreement, on the Closing Date, Sellers
shall sell, transfer, assign, convey and
deliver, or cause to be sold, transferred,
assigned, conveyed and delivered, to
Buyer, and Buyer shall purchase, free and
clear of all Encumbrances and
Interests (except for Permitted
Encumbrances and Assumed Liabilities), all
right, title and interest of Sellers in, to
or under the properties and assets
of Sellers of every kind and description,
wherever located, real, personal or
mixed, tangible or intangible, owned,
licensed, used or held for use in or
relating to the Business as the same shall
exist on the date hereof or be
acquired after the date hereof in the
ordinary course of the Business, except as
subsequently disposed of in accordance with
the provisions of this Agreement
(herein collectively called the "Purchased
Assets"), including all right, title
and interest of each Seller in, to or
under:
(a) all notes
and accounts receivable generated by the Business, except
those listed or described in Schedule
2.2(g);
(b) all of the
assets reflected on the Reference Date Balance Sheet or in
the notes thereto, except those assets
disposed of or converted into cash after
the Reference Date in the ordinary course
of the Business consistent with past
practice and not in violation of any
provisions of this Agreement;
(c) all raw
materials, supplies, work-in-process, finished goods, packaging
materials, samples and other materials
included in the inventory of the Business
(the "Inventory");
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(d) all
machinery, equipment, appliances, vehicles, tools, spare parts,
accessories, furniture and other personal
property used in the Business;
(e) all
Contracts listed or described in Schedule 2.1(e), other than
those
excluded pursuant to the next to last
paragraph of this Section 2.1, as the same
may be supplemented pursuant to Section 2.5
(the "Seller Agreements");
(f) the Owned
Real Property, except for the Owned Real Property listed on
Schedule 2.2(d), and all Leases of Leased
Real Property;
(g) all
Governmental Permits;
(h) all
Intellectual Property owned, licensed or used by the Sellers,
or
otherwise used, or held for use, in or
relating to the Business (including all
goodwill associated therewith);
(i) all products
and Intellectual Property in or related thereto in
development by the Sellers for use in or
relating to or otherwise in development
for the Business;
(j) all computer
software programs and software systems owned, licensed or
used by the Sellers, or otherwise used, or
held for use, in or relating to the
Business, including all websites,
databases, compilations, tool sets, compilers,
higher level or "proprietary" languages,
related documentation, technical
manuals and materials, whether in source
code, object code or human readable
form, and any licenses or right relating to
the foregoing;
(k) all books,
records, files, invoices, Inventory records, product
specifications, advertising materials,
customer lists, cost and pricing
information, supplier lists, business
plans, catalogs, customer literature,
quality control records and manuals,
research and development files, records and
laboratory books and credit records of
customers (including all data and other
information stored on discs, tapes or other
media) to the extent used in or to
the extent relating to the assets,
properties, including the Intellectual
Property, business or operations of the
Business;
(l) all
telephone, telex and telephone facsimile numbers and other
directory listings used in connection with
the Business;
(m) all
refundable security deposits, and all benefits and rights
arising
from prepaid expenses and prepaid rent for
or relating to the Purchased Assets;
(n) the capital
stock of the foreign Subsidiaries of Sellers listed in
Schedule 2.1(n) (each a "Transferred
Subsidiary");
(o) all Supplier
Deposits;
(p) subject in
all respects to the terms of the Sale Procedures Order (to
the extent, if any, as modified by the
Settlement Agreement), and except for the
rights, claims and Actions listed or
described in Schedule 2.2(i), the Avoidance
Actions, the Winget Actions and the
Excluded Action, all of Sellers' and its
Affiliates' rights, claims and Actions
against third
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parties relating to the Business or the
Purchased Assets arising out of
transactions, events or a state of facts
occurring or existing prior to the
Closing Date; and
(q) all goodwill
related to any of the foregoing.
At any time at least five days prior to the Closing Date, Buyer,
in
its discretion by written notice to
Sellers, may exclude from being assigned
pursuant hereto any Contracts, other than
Contracts described in Section 8.2,
and such Contracts shall not constitute
Seller Agreements, and Buyer shall not
acquire any rights or assume any
Liabilities with respect thereto. Upon Buyer's
reasonable request, and, as applicable, in
accordance with the Sale Order,
Sellers shall provide additional detailed
information as to the Liabilities
under the Contracts sufficient for Buyer to
make an informed assessment whether
to accept an assignment and assumption of
such Contracts hereunder.
At any time prior to three business days prior to the date of
the
auction provided for in the Sale Procedures
Order (the "Auction Date"), Buyer
may, in its discretion by written notice to
Sellers, designate any of the
Purchased Assets as additional Excluded
Assets, which notice shall set forth in
reasonable detail the Purchased Assets so
designated. Buyer acknowledges and
agrees that there shall be no reduction in
the Purchase Price if it elects to
designate any Purchased Assets as Excluded
Assets. Notwithstanding any other
provision hereof, the Liabilities of
Sellers under or related to any Purchased
Asset excluded under this paragraph will
constitute Excluded Liabilities.
2.2 EXCLUDED
ASSETS. Notwithstanding the provisions of Section 2.1, the
Purchased Assets shall not include the
following (herein referred to as the
"Excluded Assets"):
(a) all minute books
and capital stock transfer books and the corporate
seal, if any, of Sellers;
(b) all refunds
of any Tax for which any Seller is liable pursuant to
Section 8.1;
(c) any
Contracts not listed or described in Schedule 2.1(e), as the
same
may be supplemented pursuant to Section
2.5;
(d) the assets
listed in Schedule 2.2(d);
(e) The
following shall be Excluded Assets: all Avoidance Actions, the
Winget Actions, the Excluded Action and
each Seller's rights, claims and Actions
against third parties relating to the
Business or the Purchased Assets which (1)
might arise in connection with the
discharge by Sellers of the Excluded
Liabilities or (2) are pending Actions as
of the Closing Date; provided,
however, that subject to the limitation, if
any, expressly set forth in the
Settlement Agreement, this clause (2) shall
not include the Actions for
infringement of Intellectual Property
rights against Autoliv ASP, Inc. and
Delphi Corporation pending in the United
States District Court for the Eastern
District of Michigan;
(f) the capital
stock, membership interests or other equity interests of
any domestic Subsidiaries (each a
"Non-Transferred Subsidiary") of any Seller;
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(g) all
intercompany receivables of Sellers and all other accounts
receivable of Sellers described in Schedule
2.2(g), other than receivables owed
by a Transferred Subsidiary to a
Seller;
(h) all cash and
cash equivalents of Sellers, except for any Supplier
Deposit; and
(i) each
Seller's rights, claims and Actions against any other Seller or
any Affiliate of any other Seller listed or
described in Schedule 2.2(i).
2.3 ASSUMED
LIABILITIES. Upon the terms and subject to the conditions of
this Agreement, on the Closing Date, Buyer
shall execute and deliver to Sellers
the Assignment and Assumption Agreement
pursuant to which Buyer shall assume and
agree to discharge, when due (in accordance
with their respective terms and
subject to the respective conditions
thereof), the following Liabilities
(without duplication) existing as of
immediately prior to the Closing
(collectively the "Assumed Liabilities")
and no others:
(a) all
obligations and liabilities of any Seller under the Seller
Agreements that arise on or after the
Closing Date or arise prior to the Closing
Date to the extent requiring performance
after the Closing Date, but excluding
any such obligations or liabilities arising
because of any breach or
nonperformance of such Seller Agreements
prior to Closing;
(b) all
liabilities for which Buyer is liable pursuant to Section 8.2;
(c) all
liabilities in respect of Taxes for which Buyer is liable
pursuant
to Section 8.1;
(d) all
post-petition Trade Payables of the Sellers not to exceed $23
million;
(e) all
liabilities that arise after the Closing Date from or are
related
to Buyer's conduct of the Business, use of
the Purchased Assets, sale of any
products manufactured and/or sold by Buyer
and/or delivery of services by Buyer;
(f) all
obligations of the Purchaser as defined in the KERP; and
(g) all general
unsecured claims listed on Schedule 2.3(g) against and
administrative expenses of the Deluxe
Entities from the Bankruptcy Proceedings
to the extent allowed (except claims or
causes of action that have been or could
be brought by or on behalf of the estates
of the Venture Entities or their
Affiliates), subject to all defenses to any
such challenges, including the
Buyer's right to contest the Venture
Entities' or their Affiliates' standing to
assert any such challenges.
2.4 EXCLUDED
LIABILITIES. Buyer shall not assume and shall not be obligated
to assume or be obliged to pay, perform or
otherwise discharge any Liability of
any Seller, and Sellers shall be solely and
exclusively liable with respect to
all Liabilities of Sellers, other than the
Assumed Liabilities (collectively the
"Excluded Liabilities").
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2.5 ASSIGNMENTS;
CURE AMOUNTS. Sellers shall transfer and assign all Seller
Agreements to Buyer, and Buyer shall assume
all Seller Agreements from the
Sellers, as of the Closing Date pursuant to
Section 365 of the Bankruptcy Code
and the Final Sale Order. In connection
with such assignment and assumption,
Sellers shall provide for cure of all
non-monetary defaults and Buyer shall cure
any monetary defaults arising under such
Seller Agreements to the extent
required by Section 365(b) of the
Bankruptcy Code. Within ninety days after the
Closing Date, Buyer may, in its discretion
by giving written notice to Sellers,
assume any Contract identified in such
notice, and Sellers shall transfer and
assign such Contract to Buyer, and Buyer
shall assume such Contracts so
identified and shall cure any monetary
defaults arising under such Contracts to
the extent required by Section 365(b) of
the Bankruptcy Code. The cure amount
under any Seller Agreement shall be an
amount determined by Buyer based upon the
books and records of Sellers; provided,
however, if any non-debtor party to such
Seller Agreement disputes such amount, the
cure amount for such Seller Agreement
shall be the amount determined by the
Bankruptcy Court.
In the case of licenses, certificates, approvals,
authorizations,
Contracts and other commitments included in
the Purchased Assets (a) that cannot
be transferred or assigned effectively
without the consent of third parties,
which consent has not been obtained prior
to the Closing (after giving effect to
the Sale Order and the Bankruptcy Code),
Sellers shall, subject to any approval
of the Bankruptcy Court that may be
required, reasonably cooperate with Buyer,
at the cost and expense of Sellers, in
endeavoring to obtain such consent, and
if any such consent is not obtained,
Sellers shall, subject to any approval of
the Bankruptcy Court that may be required,
reasonably cooperate with Buyer, in
all reasonable respects and at Sellers'
cost and expense, to provide to Buyer
the benefits thereof in some other manner,
or (b) that are otherwise not
transferable or assignable (after giving
effect to the Final Sale Order and the
Bankruptcy Code), Sellers shall, subject to
any approval of the Bankruptcy Court
that may be required, reasonably cooperate
with Buyer, at the cost and expense
of Sellers, to provide to Buyer the
benefits thereof in some other manner
(including the exercise of the rights of
Sellers thereunder), provided that
Sellers shall not be required to expend
unreasonable amounts pursuant to clauses
(a) or (b) of this paragraph.
ARTICLE III
PURCHASE PRICE
3.1 PURCHASE
PRICE. The purchase price (the "Purchase Price") for the
purchase, sale, assignment and conveyance
of Sellers' right, title and interest
in, to and under the Purchased Assets shall
be:
(a) cash in the
amount of the Exit Cash Requirement; plus
(b) cash in the
amount necessary to pay the 506(c) Advance (as defined in
the Settlement Agreement), plus
(c) a Credit
Bid, of $500,000 of the Prepetition Obligations (as defined in
the Settlement Agreement), plus
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(d) the amount
of cash necessary to provide to any Senior Lenders who have
not contributed their Prepetition
Obligations a percentage cash recovery equal
to (x) the aggregate Prepetition
Obligations of the Senior Lenders who have
contributed their Prepetition Obligations
that are included in the Credit Bid,
divided by (y) the aggregate Prepetition
Obligations of the Senior Lenders who
have contributed their Prepetition
Obligations, which cash shall be paid on
behalf of Sellers directly to the Agent
pursuant to the Sale Order for the
benefit of the Senior Lenders, as their
interests may appear, plus
(e) the Assumed
Liabilities, including cash, if any, required to be paid at
the Closing (i) pursuant to the KERP, and
(ii) for pre-petition trade payables
of the Deluxe Entities as set forth in
Schedule 2.3(g), plus
(f) cure costs
pursuant to Section 2.5.
3.2 ALLOCATION
OF PURCHASE PRICE. Within one hundred eighty days after the
Closing, Buyer shall deliver to Sellers for
Sellers' review and approval
allocation schedule(s) (the "Allocation
Schedule(s)") allocating the Purchase
Price and the Assumed Liabilities that are
liabilities for federal income Tax
purposes on a dollar basis among the
Purchased Assets. The Allocation
Schedule(s) shall be reasonable and shall
be prepared in accordance with Section
1060 of the Code and the regulations
thereunder. Sellers agree that, following
their approval of the Allocation
Schedule(s), such approval not to be
unreasonably withheld, Sellers shall sign
the Allocation Schedule(s) and return
an executed copy thereof to Buyer within
ten days after receiving the Allocation
Schedule(s) from Buyer. Buyer, on the one
hand, and Sellers, on the other hand,
each agrees to file IRS Form 8594, and all
Tax Returns, in accordance with the
Allocation Schedule(s). Buyer, on the one
hand, and Sellers, on the other hand,
each agrees to provide the other promptly
with any other information required to
complete Form 8594.
ARTICLE IV
CLOSING
4.1 CLOSING
DATE. Upon the terms and subject to the satisfaction of the
conditions contained in Article IX, the
closing of the sale of the Purchased
Assets and the assumption of the Assumed
Liabilities contemplated hereby (the
"Closing") shall take place at a mutually
agreed upon location at 10:00 A.M.
(local time) no later than the fifth
Business Day following the date on which
the conditions set forth in Article IX have
been satisfied (other than the
conditions with respect to actions the
respective parties hereto will take at
the Closing itself) or, to the extent
permitted, waived in writing, or at such
other place or time as Buyer and Sellers
may mutually agree. The date and time
at which the Closing actually occurs is
hereinafter referred to as the "Closing
Date."
4.2 PAYMENT ON
THE CLOSING DATE. Subject to fulfillment or waiver (if
permissible) of the conditions set forth in
Article IX, at Closing Buyer shall
pay Sellers an amount in cash equal to the
cash portion of the Purchase Price
provided for in Sections 3.1(a) and (c) by
wire transfer of immediately
available funds to the account in the
United States specified by Sellers in
writing to Buyer at least three business
days prior to the Closing.
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4.3 BUYER'S
ADDITIONAL DELIVERIES. At or prior to the Closing, Buyer shall
deliver to Sellers all the following:
(a) copies of
Buyer's Certificate of Formation, certified as of a recent
date by the Secretary of State of the State
of Delaware;
(b) certificate
of good standing of Buyer issued as of a recent date by the
Secretary of State of the State of
Delaware;
(c) certificate
of an authorized officer of Buyer, dated the Closing Date,
in form and substance reasonably
satisfactory to Sellers, as to (i) no
amendments to the Certificate of Formation
of Buyer since the date of the
certified Certificate of Formation
delivered pursuant to Section 4.3(a); (ii)
the resolutions of the Board of Managers of
Buyer authorizing the execution and
performance of this Agreement and the
Ancillary Documents to which Buyer is a
party and the transactions contemplated
hereby and thereby; and (iii) incumbency
and signatures of the officers of Buyer
executing this Agreement and such
Ancillary Documents;
(d) the
Assignment and Assumption Agreement duly executed by Buyer; and
(e) such other
assignments and other good and sufficient instruments of
assumption and transfer, in form reasonably
satisfactory to Sellers, as Sellers
may reasonably request to transfer and
assign the Assumed Liabilities to Buyer.
4.4 SELLERS'
DELIVERIES. At or prior to the Closing, Sellers shall deliver
to Buyer all the following:
(a) the Bill of
Sale, Deeds and Assignment and Assumption Agreement duly
executed by Sellers;
(b) instruments
of assignment of the Patents (the "Assignment of Patents"),
Trademarks (the "Assignment of
Trademarks"), Copyrights (the "Assignment of
Copyrights") and Domain Names (the
"Assignment of Domain Names") that are
included in the Purchased Assets, if any,
duly executed by Sellers, in form for
recordation with the appropriate
Governmental Authorities, substantially in the
form of Exhibits E, F, G, and H,
respectively, and any other assignments or
instruments with respect to any
Intellectual Property included in the Purchased
Assets for which an assignment or
instrument is required to assign, transfer,
convey and deliver such assets to
Buyer;
(c) certified
copy of the Sale Order;
(d) certificates
or other instruments representing all of the shares or
other equity interests of the Transferred
Subsidiaries accompanied by stock
powers duly executed in blank and otherwise
in form reasonably satisfactory to
Buyer for transfer of the Transferred
Subsidiaries;
(e) certificates
executed by each Seller, in the form prescribed under
Treasury Regulation Section 1.1445-2(b),
that such Seller is not a foreign
person within the meaning of Section
1445(f)(3) of the Code; and
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(f) such other
bills of sale, deeds, endorsements, assignments and other
good and sufficient instruments of
conveyance and transfer, in form reasonably
satisfactory to Buyer, as are necessary or
otherwise customary to vest in Buyer
all the right, title and interest of
Sellers in, to or under any or all the
Purchased Assets and other transfer tax
forms, affidavits and certificates
customarily delivered in connection
therewith.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLERS
As used in this Article V, references to Transferred Subsidiary
include any Subsidiary of a Transferred
Subsidiary. As an inducement to Buyer to
enter into this Agreement and to consummate
the transactions contemplated
hereby, each Seller jointly and severally
represents and warrants to Buyer and
agrees as follows:
5.1 ORGANIZATION
OF SELLERS. Each Seller is a corporation or a limited
liability company duly organized, validly
existing and in good standing under
the laws of the State of Michigan. Each
Seller is duly qualified to transact
business as a foreign corporation or
limited liability company and is in good
standing in each of the jurisdictions in
which the ownership or leasing of its
properties or the conduct of its businesses
requires such qualification, except
where failure to so qualify or be in good
standing would not reasonably be
expected to have a Material Adverse Effect.
Each Seller has full corporate or
limited liability company power (as the
case may be) and authority to own or
lease and to operate and use the Purchased
Assets and to carry on the Business
as now conducted. Each Transferred
Subsidiary is duly organized and validly
existing under the laws of its jurisdiction
of incorporation or formation. Each
Transferred Subsidiary has full power and
authority to own its properties and
assets and to carry on the Business as now
conducted.
5.2 SUBSIDIARIES
AND INVESTMENTS. Except as set forth in Schedule 5.2,
Sellers do not, directly or indirectly,
own, of record or beneficially, any
outstanding voting securities, membership
interests or other equity interests in
any Person. All outstanding voting
securities, membership interests or other
equity interests of each Transferred
Subsidiary are 100% owned by Sellers and
after Closing, Buyer shall own, free and
clear of all Encumbrances and
Interests, all outstanding voting
securities and other equity interests of each
Transferred Subsidiary.
5.3 AUTHORITY OF
SELLERS. (a) Each Seller has full power and authority to
execute, deliver and, subject to the entry
of the Sale Order, perform this
Agreement and each of the Ancillary
Documents to which each Seller is a party.
The execution, delivery and performance of
this Agreement and such Ancillary
Documents by each Seller have been duly
authorized and approved by each Seller's
board of directors (or similar governing
body), is in accordance with the
Bankruptcy Code and, subject to the entry
of the Final Sale Order, does not
require any authorization or consent of any
Seller's shareholders or members
that has not been obtained. This Agreement
has been duly authorized, executed
and delivered by Sellers and, subject to
the entry of the Final Sale Order, is
the legal, valid and binding obligation of
Sellers enforceable in accordance
with its terms, and each of the Ancillary
Documents to which each Seller is a
party has been duly authorized by Sellers
and upon execution and delivery by
Sellers and subject to the
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entry of the Final Sale Order, will be a
legal, valid and binding obligation of
Sellers enforceable in accordance with its
terms.
(b) Subject to
receipt of the Required Consents and the Third Party
Consents, neither the execution and
delivery of this Agreement or any of the
Ancillary Documents or the consummation of
any of the transactions contemplated
hereby or thereby nor compliance with or
fulfillment of the terms, conditions
and provisions hereof or thereof will
conflict with, result in a breach of the
terms, conditions or provisions of, or
constitute a default or an event of
default, or permit the acceleration of any
liability or obligation, under (1)
any charter (or similar governing
instrument) or Bylaws (or similar governing
document) of any Seller or any Transferred
Subsidiary, (2) any Governmental
Permits, (3) any Court Order to which any
Seller or any Transferred Subsidiary
is a party or any of the Purchased Assets
is subject or by which any Seller or
any Transferred Subsidiary is bound, (4)
any Requirements of Law affecting
Sellers or any Transferred Subsidiary or
the Purchased Assets, or (5) any Seller
Agreement listed or described on Schedule
2.1(e) on the date hereof.
5.4 REAL
PROPERTY. (a) Schedule 5.4(a) lists, as of the date of this
Agreement, all real property which is owned
by any Seller and used in connection
with the Business (collectively, the "Owned
Real Property").
(i) Sellers have received all Governmental Permits which are
necessary
or appropriate
in connection with Sellers' occupancy, ownership or leasing
of the Owned
Real Property and the present use of the Owned Real Property
that constitutes
a Purchased Asset does not violate the Governmental
Permits
applicable thereto, except where the failure to receive, or
violation of, a
Governmental Permit would not reasonably be expected to
have a Material
Adverse Effect.
(ii) No Seller has received written notice or otherwise has
knowledge
of any pending
or threatened (A) condemnation, eminent domain,
expropriation or
simila
