Exhibit 2.1
FIRST AMENDMENT TO
ASSET PURCHASE
AGREEMENT
This First Amendment (this “
First Amendment ”) to the Asset Purchase Agreement
(this “ Agreement ”), dated as of July 17,
2009, by and among Eddie Bauer Holdings, Inc., a Delaware
corporation (the “ Seller ”) and each of the
subsidiaries of the Seller listed on Schedule I thereto
(together with the Seller, the “ Selling Entities
”), and Everest Holdings LLC, a Delaware limited liability
company (the “ Buyer ”), is made and entered
into as of July 29, 2009 by and among the Selling Entities and
Buyer. All of the capitalized terms which are used but not
otherwise defined herein have the meanings given to such terms in
the Asset Purchase Agreement.
WHEREAS, each of the Selling
Entities and the Buyer are parties to the Asset Purchase Agreement;
and
WHEREAS, pursuant to
Section 10.1 of the Asset Purchase Agreement, the
Parties have agreed to amend the Asset Purchase Agreement as set
forth below.
NOW, THEREFORE, in consideration of
the premises and of the mutual covenants and agreements contained
herein and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties,
intending to be legally bound, hereby agree as follows:
1. Definition of “Actual
2009 Capital Expenditures” . The definition of
“Actual 2009 Capital Expenditures” set forth in
Section 1.1 of the Asset Purchase Agreement is hereby
amended to read in its entirety as follows:
“ Actual 2009 Capital
Expenditures ” means the aggregate cumulative cash
expenditures by the Selling Entities for or towards capital items
from May 3, 2009 through the close of business on the Closing
Balance Sheet Date.
2. Definition of “Closing
Balance Sheet” . The definition of “Closing Balance
Sheet” set forth in Section 1.1 of the Asset
Purchase Agreement is hereby amended to read in its entirety as
follows:
“ Closing Balance Sheet
” means a consolidated balance sheet of the Seller as of the
close of business on the Closing Balance Sheet Date, without giving
effect to the transactions occurring at Closing.
3. Definition of “Closing
Net Working Capital Amount” . The definition of
“Closing Net Working Capital Amount” set forth in
Section 1.1 of the Asset Purchase Agreement is hereby
amended to read in its entirety as follows:
“ Closing Net Working
Capital Amount ” means the aggregate dollar value of
(i) all assets of the Selling Entities constituting Purchased
Assets and
all assets of the Acquired
Subsidiary, in each case, of the type reflected in the categories
of “current assets” specifically set forth on
Schedule 1.1(a) , minus (ii) all liabilities of
the Selling Entities constituting Assumed Liabilities and all
liabilities of the Acquired Subsidiary, in each case, of the type
and to the extent reflected in the categories of “current
liabilities” specifically set forth on Schedule 1.1(a)
, in each case, as adjusted in the manner specifically set forth on
Schedule 1.1(a) , and minus (iii) 50% of the
Transfer Taxes to the extent reasonably determinable on the date of
the preparation of the Closing Date Schedule, in the case of
clauses (i) and (ii), determined as of the close of business
on the Closing Balance Sheet Date in accordance with the GAAP
Accounting Principles and without giving effect to the transactions
occurring at Closing. On the date of this Agreement, the Buyer
provided the Seller with an example of the calculation and
methodologies applicable to the determination of the Closing Net
Working Capital Amount as if the Closing had occurred on
April 5, 2009.
4. Definition of “Closing
Balance Sheet Date” . The following definition of
“Closing Balance Sheet Date” is hereby added to
Section 1.1 of the Asset Purchase Agreement immediately
following the definition of “Closing Balance
Sheet”:
“ Closing Balance Sheet
Date ” means (i) August 1, 2009, in the event
that the Closing occurs on August 3, 2009, or (ii) the
day immediately preceding the Closing Date, in the event that the
Closing occurs on or after August 4, 2009.
5. Specified Contracts .
Schedule 1.1(e) to the Asset Purchase Agreement (Specified
Contracts) is hereby replaced in its entirety by Exhibit A
to this First Amendment.
6. Assumed Liabilities .
Section 2.3(a) , Section 2.3(f) and
Section 2.3(h) of the Asset Purchase Agreement are each
hereby amended to read in their entirety as follows:
(a) the Liabilities of the Selling
Entities outstanding as of the Closing that are of the type
included as a “current liability” in the calculation of
the Closing Net Working Capital Amount;
(f) (i) all Transfer Taxes and other
Taxes to the extent expressly payable by the Buyer pursuant to
Section 7.8 and (ii) any Taxes outstanding of the
Closing that are of a type included as a liability in the
calculation of the Closing Net Working Capital Amount;
(h) any overdrafts in the bank
accounts of the Selling Entities as of the Closing, but only to the
extent that the Selling Entities provide funds to Buyer and/or one
or more Buyer Designees to make payment on such overdrafts and
Buyer and/or such Buyer Designees have not returned such funds to
the Selling Entities.
2
7. Time and Place of Closing
. Section 4.1 of the Asset Purchase Agreement is hereby
amended to read in its entirety as follows:
Section 4.1 Time and Place
of Closing . Upon the terms and subject to the satisfaction of
the conditions contained in Article VIII of this Agreement,
the closing of the sale of the Purchased Assets and the assumption
of the Assumed Liabilities contemplated by this Agreement (the
“Closing”) shall take place at the offices of the
Buyer’s counsel, New York, New York at 8:00 a.m. (Eastern
time) no later than the second (2nd) Business Day following
the date on which the conditions set forth in
Article VIII have been satisfied or, to the extent
permitted, waived by the applicable Party in writing (other than
conditions which by their nature are to be satisfied at the
Closing, but subject to the satisfaction or, to the extent
permitted, waiver of such conditions at or prior to the Closing),
or at such other place and time as the Buyer and the Seller may
mutually agree. For all purposes under this Agreement, the Closing
shall be effective, and shall be deemed to have occurred, as of
12:01 a.m. (Eastern time) on the Closing Date. The date on which
the Closing actually occurs is herein referred to as the
“Closing Date.”
8. Closing Net Working Capital
Amount and Estimated Capital Expenditures .
(a) The Parties agree that for
purposes of the Asset Purchase Agreement the Estimated Capital
Expenditure Adjustment shall be equal to $2,500,000 and the
Estimated Capital Expenditures shall be equal to the Capital
Expenditure Target as of the Closing Balance Sheet Date less
$2,500,000, and the Parties agree that the Seller shall not be
required to deliver the certification required by
Section 3.2(a)(iii) of the Asset Purchase Agreement
with respect to the Estimated Capital Expenditures.
(b) For all purposes under the Asset
Purchase Agreement, (i) the Closing Net Working Capital
Amount, the Estimated Net Working Capital Amount, the Actual 2009
Capital Expenditures and the Closing Balance Sheet will be prepared
and determined as of the close of business on the Closing Balance
Sheet Date, and (ii) notwithstanding the foregoing, the
Purchased Assets, the Excluded Assets, the Assumed Liabilities and
the Excluded Liabilities will be determined as of the Closing, and
not as of the close of business on the Closing Balance Sheet
Date.
(c) The Parties agree that the
purpose of certain of the amendments to the Asset Purchase
Agreement contained herein are for reasons of administrative
convenience so that the calculation of the Closing Net Working
Capital Amount (and the Estimated Net Working Capital Amount) may
be calculated, and the Closing Balance Sheet may be prepared, as of
the
