ASSET PURCHASE AGREEMENT
DATED AS OF AUGUST 4, 2005
BETWEEN
HORIZON MOTORS, INC.
AND
SELLERS & JOSEPHSON INC.
Table of Contents
-----------------
SECTION 1
THE TRANSACTION.........................................1
1.01
Purchase of Purchased Assets................................1
1.02
Liabilities.................................................1
1.03
[Intentionally Omitted].....................................1
1.04
Deposit.....................................................1
1.05
Purchase Price..............................................2
1.06
The Closing.................................................2
1.07
Assumption of Assumed Contracts.............................3
SECTION 2
REPRESENTATIONS AND WARRANTIES OF THE COMPANY...........3
2.01
Authority...................................................3
2.02
No Conflicts................................................3
2.03
Governmental Approva1s and Filings..........................4
2.04
Title to Assets.............................................4
2.05
No Other Representations and Warranties.....................4
SECTION 3
REPRESENTATIONS AND WARRANTIES OF BUYER.................4
3.01
Authority...................................................5
3.02
No Conflicts................................................5
3.03
Governmental Approvals and Filings..........................5
3.04
Financial Matters...........................................6
3.05
Purchased Assets............................................6
SECTION 4
COVENANTS OF THE COMPANY AND BUYER......................6
4.01
Conduct of Business.........................................6
4.02
Employment Matters..........................................6
4.03
Carlstadt Lease.............................................6
4.04
Englewood Lease.............................................6
SECTION 5
BANKRUPTCY AND OTHER COVENANTS..........................7
5.01
Bankruptcy Court Filings and Approvals......................7
5.02
Further Assurances..........................................7
SECTION 6
TAXES...................................................7
6.01
Taxes Borne by the Company..................................7
i
6.02
Pro-Rated Taxes.............................................7
6.03
Purchase Price Allocation; IRS Filings......................8
6.04
Bulk Sales..................................................8
SECTION 7
CONDITIONS TO OBLIGATIONS OF BUYER......................8
7.01
Representations and Warranties..............................8
7.02
Performance.................................................8
7.03
Orders and Laws.............................................8
7.04
Bankruptcy Court Approval...................................8
7.05
Material Adverse Effect.....................................9
7.06
Leased Property.............................................9
SECTION 8
CONDITIONS TO OBLIGATIONS OF THE COMPANY................9
8.01
Representations and Warranties..............................9
8.02
Performance.................................................9
8.03
Orders and Laws.............................................9
8.04
Bankruptcy Court Approval...................................9
8.05
DIP Lender Consent.........................................10
SECTION 9
TERMINATION............................................10
9.01
Termination................................................10
9.02
Effect of Termination......................................11
9.03
Non-Solicitation by Buyer..................................11
SECTION 10
SURVIVAL...............................................12
10.01
Survival...................................................12
SECTION 11
DEFINITIONS............................................12
11.01
Definitions................................................12
11.02
Construction of Certain Terms and Phrases..................18
SECTION 12
MISCELLANEOUS..........................................18
12.01
Entire Agreement...........................................18
12.02
Notices....................................................18
12.03
Expenses...................................................19
12.04
Public Announcements.......................................19
12.05
Waiver.....................................................19
ii
12.06
Amendment..................................................19
12.07
No Third Party Beneficiary.................................19
12.08
No Assignment; Binding Effect..............................20
12.09
Headings...................................................20
12.10
Retention of Bankruptcy Court Jurisdiction.................20
12.11
Governing Law..............................................20
12.12
Invalid Provisions.........................................20
12.13
Counterparts...............................................20
Exhibit A
Assumed Contracts
Exhibit B
Form of Bill of Sale and Assignment and Assumption Agreement
Exhibit C
Sale Procedures
iii
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT dated as of August 4, 2005, between
HORIZON
MOTORS, INC., a Delaware corporation ("Buyer") and SELLERS &
JOSEPHSON INC., a
New Jersey corporation (the "Company").
RECITALS
The Company desires to sell, and Buyer desires to purchase,
substantially all the Company's assets relating to the Business
(such term and
other capitalized terms used in this Agreement having the meanings
assigned in
Section 11), and Buyer is willing to assume certain obligations of
the Company
relating to the Business, for the consideration and on the terms
and conditions
set forth in this Agreement.
In consideration of the premises and of the mutual representations,
warranties, covenants and agreements hereinafter set forth and for
other good
and valuable consideration, the receipt and sufficiency of which
are hereby
expressly acknowledged by the parties, the parties hereto agree as
follows:
SECTION 1.
THE TRANSACTION
1.01 Purchase of Purchased Assets. Upon the terms and subject to
the
conditions contained herein, at the Closing, the Company shall
sell, assign,
transfer and convey, or cause to be sold, assigned, transferred and
conveyed, to
Buyer, and Buyer shall purchase and accept, all of the Company's
right, title
and interest in and to the Purchased Assets, in consideration for
payment of the
Purchase Price by Buyer. The Purchased Assets shall be transferred
to Buyer in
accordance with Section 363(f) of the Bankruptcy Code free and
clear of all
Liens except for Permitted Liens. The sale, transfer and conveyance
of the
Purchased Assets shall be made pursuant to this Agreement and shall
be further
evidenced by the execution and delivery at the Closing by the
Company of bills
of sale and instruments of assignment and assumption and such other
instruments
of assignment, transfer and conveyance as Buyer may reasonably
request,
including assignments regarding all Intellectual Property.
Notwithstanding
anything in this Agreement to the contrary, the Company will not
sell to Buyer,
and Buyer will not purchase, any of the Excluded Assets.
1.02 Liabilities. Notwithstanding anything in this Agreement to the
contrary, and except as may relate to the Assumed Contracts, Buyer
is not
assuming any Liabilities of whatever nature, whether presently in
existence or
arising hereafter. All such Liabilities shall be retained by and
remain
Liabilities of the Company.
1.03 [Intentionally Omitted]
1.04 Deposit. Within one day of the execution of this Agreement,
Buyer
shall deposit $200,000 with the Company (the "Deposit") to be held
by the
Company in a segregated account pending payment at the Closing. No
interest
shall be paid to Buyer on the Deposit.
1.05 Purchase Price. The aggregate purchase price for the Purchased
Assets (the "Purchase Price") is equal to $4,000,000; provided,
however, that at
the Closing, the Purchase Price shall be adjusted as follows: (a)
If the
accounts receivable on the books and records of the Company at the
end of the
business day prior to the Closing, as determined by the Company in
good faith
and certified to the Buyer at the Closing (the "Closing Accounts
Receivable")
are less than $1,750,000, then the Purchase Price shall be reduced,
on a
dollar-for-dollar basis, by an amount equal to the amount by which
the Closing
Accounts Receivable are less than $1,750,000 and (b) If the Closing
Accounts
Receivable are greater than $1,850,000, then the Purchase Price
shall be
increased, on a dollar-for-dollar basis, by an amount equal to the
excess of the
Closing Accounts Receivable over $1,850,000. For the avoidance of
doubt, there
shall be no adjustment if the Closing Accounts Receivable are
between $1,750,000
and $1,850,000. In addition, the Purchase Price shall be increased
for any rent
prepaid by the Company in accordance with Sections 4.08 and 4.09.
1.06 The Closing. (a) Unless this Agreement has been terminated
pursuant to Section 9.01, and subject to the satisfaction or waiver
of the
applicable conditions set forth in Sections 7 and 8 and the
deliveries required
by this Agreement, if applicable, the closing of the transactions
contemplated
by this Agreement (the "Closing") will take place at the offices of
Thompson
Coburn LLP, One US Bank Plaza, St. Louis MO 63101, at 10:00 a.m.,
local time, on
the second Business Day following the date of satisfaction or
waiver by the
appropriate party of the conditions set forth in Sections 7 and 8,
unless
another date, time or place is mutually agreed to by the parties
hereto (the
"Closing Date"). The Closing shall be effective as of 12:01 a.m. on
the Closing
Date.
(b) At the Closing, Buyer will pay the Purchase Price (less the
Deposit) by wire transfer of immediately available United States
funds to the
Company, at an account or accounts identified by the Company in
writing at least
2 Business Days before the Closing Date.
(c) At the Closing, the Company shall deliver to Buyer:
(i) executed deeds, bills of sale and assignments in customary
form necessary to effect the transfer of the Purchased Assets to
Buyer;
(ii) a duly executed counterpart of the Bill of Sale and
Assignment and Assumption Agreement;
(iii) possession and control of the Purchased Assets and all
documents relating to Inventory on order (but not physical
possession of
Inventory in the possession of vendors or common carriers or other
third
parties in the ordinary course of business); and
(iv) all books and records relating to the Business and the
Purchased Assets provided that the Company shall be entitled to
retain
copies of the books and records and that Buyer shall provide access
to such
books and records as reasonably requested by the Company.
2
(d) At the Closing, Buyer shall deliver to the Company:
(i) the Purchase Price (less the amount of the Deposit);
(ii) a duly executed counterpart of the Bill of Sale and
Assignment and Assumption Agreement; and
(iii) such other documents, instruments and certificates as may
be necessary or as the Company may reasonably request to effect the
transactions contemplated hereby.
1.07 Assumption of Assumed Contracts. The Sale Order will provide
for
the assumption by the Company and the sale and assignment to Buyer,
effective
upon the Closing, of the Assumed Contracts such that as of the
Closing Date, the
Company shall assume pursuant to Section 365(a) of the Bankruptcy
Code and sell
and assign to Buyer, pursuant to Sections 363(b), (f) and (m) and
Section 365(f)
of the Bankruptcy Code, each of the Assumed Contracts. The Assumed
Contracts are
set forth on Exhibit A and identified by the date of the Assumed
Contract (if
available), the other party or parties to such Assumed Contract and
the address
of such party or parties.
SECTION 2
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
The Company represents and warrants to Buyer as follows:
2.01 Authority. Subject to the approval of the Bankruptcy Court,
the
Company has the requisite corporate power and authority to execute
and deliver
this Agreement, and to perform its obligations hereunder and, upon
entry of the
Sale Order, to consummate the transactions contemplated hereby.
Subject to the
approval of the Bankruptcy Court, the execution and delivery by the
Company of
this Agreement, and the performance by the Company of its
obligations hereunder,
have been duly and validly authorized by all necessary corporate
action of the
Company. Subject to the approval of the Bankruptcy Court, this
Agreement has
been duly and validly executed and delivered by the Company and
constitutes its
legal, valid and binding obligation, enforceable against the
Company in
accordance with its terms.
2.02 No Conflicts. Subject to the approval of the Bankruptcy Court,
the
execution and delivery by the Company of this Agreement and the
performance by
the Company of its pre-Closing obligations hereunder will not, and,
upon entry
of the Sale Order, the consummation of the transactions
contemplated hereby,
including the performance of transfers, assumptions or other
actions required of
it by this Agreement to effect such consummation, will not:
(a) violate or breach any term or provision of any Law or Order
applicable to the Company or any of the Assets of the Company,
other than such
violations or breaches which
3
would not, individually or in the aggregate, reasonably be expected
to adversely
affect the validity or enforceability of this Agreement or to have
a Material
Adverse Effect; or
(b) except as would not, individually or in the aggregate,
reasonably
be expected to adversely affect the ability of the Company to
consummate the
transactions contemplated hereby, or to perform its obligations
hereunder, and
would not, individually or in the aggregate, reasonably be expected
to have a
Material Adverse Effect, (i) violate or breach, (ii) constitute
(with or without
notice or lapse of time or both) a default under, (iii) require the
Company to
obtain any consent, approval or action of, make any filing with or
give any
notice to any Person as a result or under the terms of, (iv) result
in or give
to any Person any right of termination, cancellation, acceleration
or
modification in or with respect to, or (v) result in the creation
or imposition
of any Lien on any Assets of the Company under, any Contract
included in the
Purchased Assets, or by which any Purchased Asset is bound.
2.03 Governmental Approvals and Filings. Subject to the approval of
the
Bankruptcy Court, no consent, approval or action of, filing with or
notice to
any Governmental Authority is required to be obtained or made by
the Company in
connection with the execution, delivery and performance of this
Agreement or the
consummation of the transactions contemplated hereby, except (i)
for consents,
approvals or actions of, and filings with or notice to, the
Bankruptcy Court and
(ii) where the failure to obtain any such consent, approval or
action to make
any such filing or to give any such notice, individually or in the
aggregate,
would not reasonably be expected to adversely affect the ability of
the Company
to consummate the transactions contemplated by this Agreement or to
perform
their obligations hereunder or to have a Material Adverse Effect.
2.04 Title to Assets. The Company has good and marketable title to
the
Purchased Assets free and clear of any Liens other than Liens that
will be
released or discharged pursuant to the Sale Order at or prior to
the Closing and
Permitted Liens.
2.05 No Other Representations and Warranties. Except for the
representations and warranties contained in this Section 2, neither
the Company
nor any affiliate of the Company or any other Person makes or has
been
authorized to make any express or implied representation or
warranty, and the
Company and the Company's affiliates hereby disclaim any express or
implied
representation or warranty, whether by Company or any affiliates of
the Company
or any of their respective officers, directors, employees, agents
or
representatives or any other Person, in connection with the
delivery or
disclosure to Buyer or any of its officers, directors, employees,
agents or
representatives or any other Person of any documentation or other
information
regarding the Company or the Purchased Assets.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to the Company as follows:
4
3.01 Authority. Buyer has the requisite corporate power and
authority
to execute and deliver this Agreement, to perform its obligations
hereunder and
to consummate the transactions contemplated hereby. The execution
and delivery
by Buyer of this Agreement, and the performance by Buyer of its
obligations
hereunder, have been duly and validly authorized by all necessary
corporate
action of Buyer, and no other corporate action on the part of Buyer
is necessary
to approve this Agreement or to consummate the transactions
contemplated hereby.
This Agreement has been duly and validly executed and delivered by
Buyer and
constitutes its legal, valid and binding obligation, enforceable
against it in
accordance with its terms, except as enforceability may be limited
by
bankruptcy, insolvency, reorganization, moratorium or other similar
Laws
affecting the enforcement of creditors' rights generally and by
general
equitable principles (regardless of whether such enforceability is
considered in
a proceeding in equity or at Law).
3.02 No Conflicts. The execution and delivery by Buyer of this
Agreement does not, and the performance by Buyer of its obligations
under this
Agreement and the consummation of the transactions contemplated
hereby will not:
(a) conflict with or result in a violation or breach of any of the
terms, conditions or provisions of the Charter Documents of Buyer;
(b) result in a violation or breach of any term or provision of any
Law
or Order applicable to Buyer, other than such violations or
breaches which would
not, individually or in the aggregate, reasonably be expected to
adversely
affect the validity or enforceability of this Agreement or to have
a material
adverse effect on Buyer; or
(c) except as would not, individually or in the aggregate,
reasonably
be expected to adversely affect the ability of Buyer to consummate
the
transactions contemplated hereby or to perform its obligations
hereunder, and
would not, individually or in the aggregate, reasonably be expected
to have a
material adverse effect on Buyer, (i) result in a violation or
breach of, (ii)
constitute (with or without notice or lapse of time or both) a
default under,
(iii) require Buyer to obtain any consent, approval or action of,
make any
filing with or give any notice to any Person as a result or under
the terms of,
(iv) result in or give to any Person any right of termination,
cancellation,
acceleration or modification in or with respect to, or (v) result
in the
creation or imposition of any Lien on Buyer under, any Contract to
which Buyer
is bound.
3.03 Governmental Approvals and Filings. No consent, approval or
action
of~, filing with or notice to any Governmental Authority is
required to be
obtained or made by Buyer in connection with the execution,
delivery and
performance of this Agreement or the consummation of the
transactions
contemplated hereby, except (i) for consents, approvals or actions
of, and
filings with or notice to, the Bankruptcy Court and (ii) where the
failure to
obtain any such consent, approval or action, to make any such
filing or to give
any such notice, individually or in the aggregate, would not
reasonably be
expected to adversely affect the ability of Buyer to consummate the
transactions
contemplated by this Agreement or to perform its obligations
hereunder or to
have a material adverse effect on Buyer.
5
3.04 Financial Matters. Buyer has, and as of the Closing Date will
have, sufficient cash to fund the Purchase Price and to make all
other necessary
payments of fees and expenses of Buyer in connection with the
transactions
contemplated by this Agreement and to operate the Business as
contemplated by
this Agreement.
3.05 Purchased Assets. Buyer hereby acknowledges that it is
purchasing
the Purchased Assets on an "as-is" basis and the Company makes no
representations and warranties as to the condition of the Purchased
Assets.
SECTION 4
COVENANTS OF THE COMPANY AND BUYER
4.01 Conduct of Business. Subject to applicable Law and any
obligations
as debtor or debtor-in-possession under the Bankruptcy Code and,
except as
expressly contemplated by this Agreement, and except as may be
consented to by
Buyer in writing in its sole discretion, from the date hereof to
the Closing
Date, the Company will operate the Business in the ordinary course
of business
as currently conducted.
4.02 Employment Matters.
(a) It is Buyer's intention to offer full-time employment effective
as
of the Closing Date to substantially all persons who are active
Employees of the
Business as of the Closing Date, for substantially similar
positions with Buyer
as such Employees held with the Company prior to the Closing Date
and at the
same salary or regular wage rate received by such Employees prior
to the Closing
Date. Employees who accept such offers are referred to herein as
"Transferred
Employees").
(b) Buyer shall be liable and responsible for compliance with, as
well
as any liability which may exist under the WARN Act, with respect
to the
termination of any Transferred Employees on or after the Closing
Date.
(c) Nothing contained in this Section 4.06 or elsewhere in this
Agreement will be deemed to make any Transferred Employee or other
employee of
the Company a third party beneficiary of this Agreement or to
guarantee any
period of continued employment.
4.03 Carlstadt Lease. All payments in respect of the Carlstadt
Lease,
including, but not limited to, rent payments, utilities and other
costs shall be
pro-rated between Buyer on the one hand and the Company on the
other hand as of
the Closing Date. All such pro-rations shall be allocated so that
items relating
to time periods ended on or prior to the Closing Date shall be
allocated to the
Company and items relating to time periods beginning on or after
the Closing
Date shall be allocated to Buyer. In addition, Buyer shall
reimburse the Company
at the Closing for any security deposit held by the landlord under
the Carlstadt
Lease.
4.04 Englewood Lease. All payments in respect of the Englewood
Lease,
including, but not limited to, rent payments, utilities and other
costs shall be
pro-rated between Buyer on the one hand and the Company on the
other hand as of
the Closing Date. All such pro-
6
rations shall be allocated so that items relating to time periods
ended on or
prior to the Closing Date shall be allocated to the Company and
items relating
to time periods beginning on or after the Closing Date shall be
allocated to
Buyer. In addition, Buyer shall reimburse the Company at the
Closing for any
security deposit held by the landlord under the Englewood Lease.
Buyer shall be
solely responsible for any and all obligations to the lessor under
the Englewood
Lease arising after the Closing with respect to its occupancy of
the premises
and the Company shall have no liability following the Closing with
respect to
Buyer's occupancy thereof.
SECTION 5
BANKRUPTCY AND OTHER COVENANTS
5.01 Bankruptcy Court Filings and Approvals. The Company shall file
with the Bankruptcy Court, as soon as practicable following the
execution of
this Agreement, a motion seeking entry of the Procedures Order and
the Sale
Order authorizing the Company to enter into this Agreement and to
consummate the
transactions contemplated hereunder. The Company agrees to
cooperate with Buyer
to seek that the Sale Order provide that neither the purchase of
the Purchased
Assets nor the subsequent operation of any business with the
Purchased Assets
shall cause Buyer to be deemed a successor of Seller or Company
within the
meaning of any revenue, pension, benefits, Tax, labor, products
liability law or
any environmental, health, and safety requirements.
5.02 Further Assurances. Subject to the terms and conditions of
this
Agreement, each party will use all reasonable efforts to take, or
cause to be
taken, all actions necessary, proper or advisable to comply
promptly with all
legal requirements which may be imposed on it with respect to this
Agreement and
the transactions contemplated hereby, and, subject to the
conditions set forth
in Sections 7 and 8 hereof, to consummate the transactions
contemplated by this
Agreement as promptly as practicable. Buyer agrees to provide a pro
forma
balance sheet reflecting its financial position following the
Closing, if
necessary to meet adequate assurance requirements.
SECTION 6
TAXES
6.01 Taxes Borne by the Buyer. Buyer and the Company recognize and
acknowledge that the sale, transfer, assignment and delivery of the
Purchased
Assets may be exempt under Section 1146(c) of the Bankruptcy Code
and the Sale
Order from all state and local transfer, recording, stamp or other
similar
transfer Taxes that may be imposed by reason of the sale, transfer,
assignment
and delivery of the Purchased Assets. Notwithstanding the
foregoing, any sales,
transfer, use (including gains and income taxes) or other similar
Taxes not
exempt under Section 1146(c) of the Bankruptcy Code that may be
imposed as a
direct result of the transactions contemplated by this Agreement
(such Taxes,
"Transfer Taxes") will be borne solely by the Buyer.
6.02 Pro-Rated Taxes. Other than Transfer Taxes set forth in
Section
6.01, real and personal property Taxes and assessments on the
Purchased Assets
shall be pro-rated between
7
Buyer on the one hand and the Company on the other hand as of the
Closing Date.
All such pro-rations shall be allocated so that items relating to
time periods
ended on or prior to the Closing Date shall be allocated to the
Company and
items relating to time periods beginning on or after the Closing
Date shall be
allocated to Buyer.
6.03 Purchase Price Allocation; IRS Filings. Within sixty (60) days
after the final determination of the Purchase Price, Buyer and the
Company shall
in good faith allocate the Purchase Price (and all other
capitalized costs,
including those resulting from the assumption of liabilities) among
the
Purchased Assets. Such allocation shall be made in accordance with
the
provisions of Section 1060 of the Code and any corresponding
applicable
provisions of foreign Tax law. All federal, state, local and
foreign Tax Returns
shall be prepared and filed consistent with such allocation.
6.04 Bulk Sales. Each of the parties hereto waives compliance with
any
applicable provisions of the Uniform Commercial Code Section 6
(Bulk Sales or
Bulk Transfers) or analogous provisions of Law, as adopted in the
states in
which the Business is conducted as such provisions may apply to the
transactions
contemplated by this Agreement.
SECTION 7
CONDITIONS TO OBLIGATIONS OF BUYER
The obligation of Buyer hereunder to consummate the transactions
contemplated hereby is subject to the fulfillment, at or before the
Closing, of
each of the following conditions (all or any of which may be waived
in whole or
in part by Buyer in its sole discretion):
7.01 Representations and Warranties. The representations and
warranties
made by the Company in this Agreement shall be true and correct in
all material
respects on and as of the Closing Date as though made on and as of
the Closing
Date, except to the extent unless expressly made as of another
date.
7.02 Performance. The Company shall have performed and complied, in
all
material respects, with the covenants required by this Agreement to
be performed
or complied with by the Company at or before the Closing, including
completion
of the deliveries to Buyer set forth in Section 1.06(c).
7.03 Orders and Laws. There shall not be in effect on the Closing
Date
any Order or Law (that has not been withdrawn or terminated)
restraining,
enjoining or otherwise prohibiting or making illegal the
consummation of the
transactions contemplated by this Agreement.
7.04 Bankruptcy Court Approval. The Bankruptcy Court shall have
entered
the Procedures Order and the Sale Order (at least 2 Business Days
prior to the
Closing Date, in the case of the Sale Order) and provided such
other relief as
may be necessary or appropriate to allow the consummation of the
transactions
contemplated by this Agreement.
8
7.05 Material Adverse Effect. Since the date of this Agreement,
there
shall not have occurred any Material Adverse Effect.
7.06 Leased Property. The Carlstadt Lease shall have been assigned
to
Buyer effective at the Closing and either (a) Buyer, the Company
and the lessor
under the Englewood Lease shall have reached a mutually acceptable
agreement
regarding the termination of the Englewood Lease and surrender of
the premises
to lessor or (2) a Bankruptcy Court order shall have been entered
in connection
with the sale providing for the rejection of the Englewood Lease
effective four
(4) months after the Closing and providing that Buyer shall be
solely
responsible for any and all obligations to the lessor under the
Englewood Lease
arising after the Closing with respect to its occupancy of the
premises and the
Company shall have no liability following the Closing with respect
to Buyer's
occupancy thereof; provided that the condition set forth in this
Section 7.06
shall not be required to the extent that the Carlstadt Lease shall
not have been
assigned to Buyer as a result of Buyer's inability to adequately
demonstrate its
creditworthiness.
Notwithstanding the foregoing, Buyer's obligations to consummate
the
transactions contemplated hereby shall not be relieved by the
failure of any of
the foregoing conditions if such failure is the result, direct or
indirect, of
any breach by Buyer of its material obligations under this
Agreement with
respect to the transactions contemplated hereby.
SECTION 8
CONDITIONS TO OBLIGATIONS
