Exhibit
2.1
AMENDED
AND RESTATED
ASSET
PURCHASE AGREEMENT
dated
as of April 23, 2009
among
WORKHORSE
INTERNATIONAL HOLDING COMPANY
and
NAVISTAR,
INC.
(as
Guarantor)
and
MONACO
COACH CORPORATION
and
THE
OTHER SELLERS NAMED HEREIN
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EXHIBITS
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Exhibit
A
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Form
of Bidding Procedures Order
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Exhibit
B
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Form
of Sale Order
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Exhibit
C
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Form
of Roadmaster Trademark License Agreement
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Exhibit
D
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Form
of Signature Resorts Design License Agreement
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Exhibit
E
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Form
of Bill of Sale
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Exhibit
F
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Form
of Assignment and Assumption
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Exhibit
G
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Form
of Intellectual Property Assignment
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SCHEDULES
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Baseline
Inventory Schedule
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Schedule
2.1(a)(iv)
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Assumed
Contracts
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Schedule
2.1(a)(v)
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Acquired
Owned Real Property
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Schedule
2.1(a)(ix)
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Asset
Register
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Schedule
2.2(a)(ii)
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Assumed
Obligations
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Schedule
2.3(d)
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Excluded
Assets
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Schedule
2.3(k)
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Excluded
Assets
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Schedule
4.3
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No
Conflicts or Violations
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Schedule
4.4
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Financial
Statements and Related Matters
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Schedule
4.5(a)
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Title
to Assets; Assets Necessary to Do Business
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Schedule
4.5(b)
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Title
to Assets; Assets Necessary to Do Business
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Schedule
4.5(c)
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Title
to Assets: Assets Necessary to Do Business
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Schedule
4.6(a)
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Employee
Benefit Plans
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Schedule
4.6(c)
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Employee
Benefit Plans
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Schedule
4.7
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Labor
Matters
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Schedule
4.8
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Personnel
Matters
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Schedule
4.9
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Litigation;
Orders
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Schedule
4.10
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Ownership;
No Subsidiaries
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Schedule
4.11(a)
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Real
Property Assets
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Schedule
4.12
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Taxes
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Schedule
4.13
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Compliance
with Laws
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Schedule
4.14
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Cure
Amounts
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Schedule
4.15(a)
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Environmental
Matters
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Schedule
4.15(b)
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Environmental
Matters
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Schedule
4.15(c)
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Environmental
Matters
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| Schedule
4.15(d) |
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Environmental
Matters |
| Schedule
4.15(f) |
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Environmental
Matters |
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Schedule
4.16
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Inventory
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Schedule
4.18
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Affiliated
Transactions
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Schedule
4.19
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Intellectual
Property
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Schedule
4.19(g)
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Intellectual
Property
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Schedule
4.20
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Insurance
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Schedule
4.21(a)
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Contracts
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Schedule
4.23
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Product
Liability; Product Warranties
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Schedule
4.24(a)
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Monaco
Dealers
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Schedule
4.24(b)
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Monaco
Dealers
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Schedule
4.24(c)
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Monaco
Dealers
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Schedule
4.24(d)
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Monaco
Dealers
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Schedule
4.24(e)
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Monaco
Dealers
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Schedule
4.25
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Accounts
Payable and Accrued Expenses
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Schedule
4.26
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Brokers
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Schedule
4.27
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Absence
of Certain Developments
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Schedule
4.28
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Officers
and Directors
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Schedule
4.31
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Credit
Support
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Schedule
6.3
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Conduct
of the Business Pending the Closing
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Schedule
8.7
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Required
Third-Party Consents
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Schedule
8.8
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Rejection
of Dealer Agreements
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Distribution
of Proceeds Schedule
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ASSET PURCHASE
AGREEMENT
THIS
AMENDED AND RESTATED ASSET PURCHASE AGREEMENT is made and entered into as of
this 23rd day of April, 2009, by and between (i) Workhorse International Holding
Company, a Delaware corporation ("Purchaser") and,
solely for purposes of Section 13.17, Navistar,
Inc., a Delaware corporation ("Guarantor"), and (ii)
Monaco Coach Corporation, a Delaware corporation ("ParentCo"), and each
of its subsidiaries listed on the signature pages of this Agreement (together
with ParentCo, each a "Seller" and
collectively, "Sellers").
WHEREAS,
Sellers and Purchaser wish to amend and restate the Asset Purchase Agreement
entered into among them on April 22, 2009 (the "Original Agreement"),
in its entirety as set forth herein.
NOW,
THEREFORE, in consideration of the mutual covenants, agreements and warranties
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
DEFINITIONS
AND RULES OF CONSTRUCTION
1.1 Definitions. Unless
otherwise defined herein, terms used herein shall have the meanings set forth
below:
"Acquired Assets"
shall have the meaning set forth in Section 2.1(a)
hereof.
"Acquired Owned Real
Property" means the Owned Real Property identified in Schedule 2.1(a)(v)
attached hereto, other than those excluded by Purchaser from the Acquired Assets
pursuant to Section 2.3(d).
"Acquisition Proposal"
means a proposal (other than by Purchaser or its Affiliates) relating to
(i) any merger, consolidation, business combination, sale or other
disposition of 20% or more of the Acquired Assets pursuant to one or more
transactions, (ii) the sale of 20% or more of the outstanding shares of
capital stock or equity interests of any Seller (including, without limitation,
by way of a tender offer, foreclosure or plan of reorganization (including a
plan of reorganization proposed or advanced by Sellers), merger or liquidation),
(iii) the sale or other disposition of any Critical Asset, or (iv) a
similar transaction or business combination involving one or more Third Parties
and any Seller.
"Affiliate" of any
particular Person means any other Person controlling, controlled by or under
common control with such particular Person, where "control" means the
possession, directly or indirectly, of the power to direct the management and
policies of a Person whether through the ownership of voting securities or
otherwise.
"Affiliated Group"
means an affiliated group as defined in Section 1504 of the Code (or any
analogous combined, consolidated or unitary group defined under state, local or
foreign income Tax law) of which any Seller is or has been a
member.
"Agreement" means this
Asset Purchase Agreement, including all of the Exhibits and the Schedules
hereto, as the same may be amended from time to time in accordance with its
terms.
"Allocation" shall
have the meaning set forth in Section 12.10
hereof.
"Applicable Rate"
means the prime rate of interest reported from time to time in The Wall Street
Journal.
"Asset Register" shall
have the meaning set forth in Section 2.1(a)(ix)
hereof.
"Assignment and
Assumption" shall have the meaning set forth in Section 10.2(c)
hereof.
"Assignment Motion"
shall have the meaning set forth in Section 6.6(c)
hereof.
"Assumed Contracts"
means all Contracts identified in Schedule 2.1(a)(iv)
attached hereto under the heading "Assumed Contracts,"
other than those excluded by Purchaser from the Acquired Assets pursuant to
Section
2.3(d)
hereof.
"Assumed Equipment
Leases" means all equipment leases identified in Schedule 2.1(a)(iv)
attached hereto under the heading "Assumed Equipment
Leases," other than those excluded by Purchaser from the Acquired Assets
pursuant to Section
2.3(d)
hereof.
"Assumed Executory
Contracts" means the Assumed Contracts and the Assumed Equipment
Leases.
"Assumed Obligations"
shall have the meaning set forth in Section 2.2(a)
hereof.
"Auction" shall mean
the auction conducted by Sellers pursuant to the Bidding Procedures Order and
Section 8.2(c) hereof for
substantially all of the Acquired Assets.
"Bankruptcy Code"
means title 11 of the United States Code.
"Bankruptcy Court"
means the United States Bankruptcy Court for the District of
Delaware.
"Baseline Chassis
Inventory" means an amount equal to $18,619,000 as set forth on the
attached Baseline
Inventory Schedule.
"Baseline Inventory"
means, collectively, the Baseline Chassis Inventory, the Baseline RV Inventory,
the Baseline Raw Material Inventory and the Baseline WIP Inventory.
"Baseline Raw Material
Inventory" means an amount equal to $38,907,000, as set forth on the
attached Baseline
Inventory Schedule.
"Baseline RV
Inventory" means an amount equal to $21,199,000, as set forth on the
attached Baseline
Inventory Schedule.
"Baseline WIP
Inventory" means an amount equal to $12,119,000, as set forth on the
attached Baseline
Inventory Schedule.
"Benefit Plan" means
any "employee benefit plan" (including, without limitations, "plans" as defined
in ERISA §3(3)), profit sharing, deferred compensation, bonus, stock option,
stock purchase, vacation pay, holiday pay, pension, retirement plans, medical
and any other form of compensation or benefit plan, program or arrangement of
any kind regardless of whether any such plan is written or oral or provided
under an employment, collective bargaining or other similar
arrangement.
"Bid" or "Bids" shall have the
meaning set forth in Section 6.8
hereof.
"Bidders" shall have
the meaning set forth in Section 6.8
hereof.
"Bidding Procedures
Order" means the order of the Bankruptcy Court, in the form of Exhibit A attached
hereto, and (i) setting a deadline for the filing of objections to the
entry of the Sale Order, (ii) providing that the Auction shall be held on
or one (1) business day prior to the Sale Hearing, (iii) scheduling the
Sale Hearing, (iv) providing for competitive bidding procedures pursuant to
which Acquisition Proposals may be solicited, made and accepted and containing
the terms specified in Sections 8.2(c) and 11.2 hereof and
(v) approving and implementing the provisions of Sections 6.6, 6.8, 8.2(c) and 11.2
hereof.
"Bison Trailer
Business" means the activities carried on by Sellers and their Affiliates
relating to the design, manufacture, marketing, distribution and sale of equine
trailers with living quarters under the "Stratus" and "Alumasport" brand
names.
"Books and Records"
means all records and lists of Sellers including (i) all merchandise,
analysis reports, marketing reports and creative material pertaining to the
Acquired Assets or the Business, (ii) all records relating to customers,
suppliers or, to the extent permitted by applicable law, personnel of the
Business (including customer lists, mailing lists, e-mail address lists,
recipient lists, sales records, correspondence with customers, customer files
and account histories, supply lists and records of purchases from and
correspondence with suppliers), (iii) all records relating to all product,
business and marketing plans of the Business, and (iv) all books, ledgers,
files, reports, plans, drawings and operating records of every kind related to
the Acquired Assets or used in or related to the Business; provided, however, "Books and Records"
shall not include the originals of any Seller's minute books, stock books and
Tax Returns or any of Sellers' books and records relating exclusively to the
Excluded Assets.
"Breakup Fee" shall
have the meaning set forth in Section 8.2(c)(i)
hereof.
"Budgets" means, prior
to the date hereof, the budgets attached to or approved by Orders of the
Bankruptcy Court, and after the date hereof, the budgets attached to or approved
by Orders of the Bankruptcy Court which have been previously approved or
consented by Purchaser (which approval or consent shall not be unreasonably
withheld or delayed), in each case with respect to use of cash collateral or
financing in connection with the Chapter 11 Cases.
"Business" means the
activities carried on by Sellers and any of their Affiliates relating to the
design, manufacture, marketing, distribution and sale of gasoline and
diesel-powered motorhomes, towable recreational vehicles, and chassis, including
the Bison Trailer Business, but excluding the Roadmaster Cargo Trailer Business
and the Motorhome Resorts Business.
"Cash" shall have the
meaning set forth in Section 2.3(e)
hereof.
"Cash Portion" shall
have the meaning as set forth in Section 3.1(a)
hereof.
"CCP Lease Agreement"
shall mean the Industrial Building Lease, dated as of
February 23, 2007, by and among Monaco Coach Corporation, Custom
Chassis Products and International Truck and Engine Corporation regarding the
Facility located at 2700 S. Nappanee Street, Elkhart, IN 46516.
"CERCLA" means the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended (42 U.S.C. §9601 et seq.) and any
Regulations promulgated thereunder.
"Chapter 11 Cases"
means the cases commenced by Sellers under Chapter 11 of the United States
Bankruptcy Code in the Bankruptcy Court and jointly administered under Case No.
09-10750-KJC.
"Chapter 11 Licenses"
means all licenses, permits or other governmental authorizations of any Seller,
but only to the extent transferable under applicable law without approval of any
Governmental Authority except the Bankruptcy Court.
"Chassis Inventory"
means Inventory consisting of purchased chassis other than chassis from
the Custom Chassis Products.
"Claim" shall have the
meaning set forth in Section 101(5) of the Bankruptcy Code.
"Closing Statement"
shall have the meaning set forth in Section 3.1(c)
hereof.
"Closing Date" shall
have the meaning set forth in Section 10.1
hereof.
"Closing Inventory"
shall have the meaning set forth in Section 3.1(a)
hereof.
"Closing" shall have
the meaning set forth in Section 10.1
hereof.
"COBRA" shall have the
meaning set forth in Section 4.6(d)
hereof.
"Code" means the
United States Internal Revenue Code of 1986, as amended.
"Company Intellectual
Property" shall have the meaning set forth in Section 4.19(b)
hereof.
"Confidential
Information" means all information of a confidential or proprietary
nature (whether or not specifically labeled or identified as "confidential"), in
any form or medium, that relates to the business, products, services and/or
research and/or development of the Business and/or its respective suppliers,
distributors, customers, independent contractors and/or other business
relations. Confidential Information includes, but is not limited to,
the following: (i) internal business information (including historical and
projected financial information and budgets and information relating to
strategic and staffing plans and practices, business, training, marketing,
promotional and sales plans and practices, cost, rate and pricing structures and
accounting and business methods); (ii) identities of, individual requirements
of, specific contractual arrangements with, and information about, suppliers,
distributors, customers, dealers, independent contractors or other business
relations and their confidential information; (iii) trade secrets, know-how,
compilations of data and analyses, techniques, systems, formulae, recipes,
research, records, reports, manuals, documentation, models, data and data bases
relating thereto; and (iv) inventions, innovations, improvements, developments,
methods, designs, analyses, drawings, reports and all similar or related
information (whether or not patentable).
"Contract" means any
agreement, contract, commitment or other binding arrangement or understanding,
whether written or oral, including, but not limited to, Chapter 11 Licenses,
licenses or agreements related to Intellectual Property, leases, arrangements,
undertakings and purchase and sales orders, to which any Seller is a
party.
"Critical Asset" means
any Acquired Owned Real Property, any Intellectual Property included in the
Acquired Assets or any machinery or equipment that, if not part of the Acquired
Assets, would have a material adverse effect on the ability of Purchaser to
operate the Acquired Assets or the Business following the Closing.
"Cure Payments" means
any cure payments or obligations (pursuant to Section 365 of the Bankruptcy Code
or otherwise) due by Sellers with respect to any Assumed Executory Contract,
including reinstatement costs to resume performance under the software licenses
that constitute an Assumed Executory Contract pursuant to this
Agreement.
"Custom Chassis
Products" means Custom Chassis Products LLC, a joint venture owned 51% by
Purchaser and 49% by ParentCo.
"Disclosure Schedule"
shall have the meaning set forth in the preamble to Article IV
hereof.
"Dollars" or "$" means dollars of
the United States of America.
"Employee Benefit
Plan" shall have the meaning set forth in Section 4.6
hereof.
"Environmental Laws"
means all federal, state, provincial, local and foreign statutes, Regulations,
ordinances, directives and other provisions having the force or effect of law,
all judicial and administrative orders and determinations, and all common law,
in each case concerning worker health and safety, exposure of any individual to
Hazardous Substances, pollution or protection of the environment, including
without limitation all those relating to the presence, use, production,
generation, handling, transportation, treatment, storage, disposal,
distribution, labeling, testing, processing, discharge, Release, threatened
Release, control, or cleanup of any Hazardous Substances (including without
limitation CERCLA and analogous state laws), each as amended or in effect as of
or prior to Closing.
"Environmental
Permits" shall have the meaning set forth in Section 4.15
hereof.
"ERISA Affiliate"
means each entity which is treated as a single employer with any Seller or its
Subsidiaries for purposes of Code §414.
"ERISA" means the
Employee Retirement Income Security Act of 1974, as amended, and all Regulations
issued thereunder.
"Evidences of
Ownership" means stock certificates, partnership ownership certificates,
and any other certificate, instrument, book entry or notation or other indicia
of ownership interests in any Person.
"Excluded Assets"
shall have the meaning set forth in Section 2.3
hereof.
"Excluded Contracts"
shall have the meaning set forth in Section 2.3(c)
hereof.
"Excluded Environmental
Liabilities" means any Liability or investigatory, corrective or remedial
obligation, whenever arising or occurring, arising under Environmental Laws with
respect to Sellers or any of their predecessors or Affiliates, the Business, the
Acquired Assets or the Facilities (including without limitation any arising from
the on-site or off-site Release, threatened Release, treatment, storage,
disposal, or arrangement for disposal of Hazardous Substances) whether or not
constituting a breach of any representation or warranty herein and whether or
not set forth on any disclosure schedule attached hereto.
"Excluded Leases"
shall have the meaning set forth in Section 2.3(c)
hereof.
"Executive Officer" of
a Person means its chairman, chief executive officer, chief financial officer,
principal accounting officer, chief administrative officer, president, any vice
president, corporate controller, secretary, treasurer or general counsel; provided, however, that with
respect to ParentCo, the definition of "Executive Officer" shall not include the
following Vice Presidents: (i) Vice President of Product Development, (ii) Vice
President of Human Resources, (iii) Vice President of Service Operations, and
(iv) Vice President of Customer Support Services.
"Exhibits" means the
exhibits hereto.
"Expense
Reimbursement" shall have the meaning set forth in Section 8.2(c)(i) hereof.
"Facilities" means
collectively the premises at which each Seller operates.
"Final Order" means an
Order as to which the time to file an appeal, a motion for rehearing or
reconsideration or a petition for writ of certiorari has expired and no such
appeal, motion or petition is pending.
"Financial Statements"
shall have the meaning set forth in Section 4.4
hereof.
"GAAP" means, at a
given time, United States generally accepted accounting principles, consistently
applied.
"Governmental
Authority" means any United States federal, state or local or any foreign
government, governmental regulatory or administrative authority, agency or
commission or any court, tribunal or judicial body.
"Hazardous Substances"
means any pollutants, contaminants or chemicals, and any industrial, toxic or
otherwise hazardous materials, substances or wastes with respect to which
Liability or standards of conduct are imposed under any Environmental Laws,
including, without limitation, petroleum and petroleum-related substances,
products, by-products and wastes, asbestos, urea formaldehyde and lead-based
paint, noise and odors.
"Highest and Best Bid"
shall have the meaning set forth in Section 8.2(c)(viii)
hereof.
"Indebtedness" means,
as applied to any Person, (i) all indebtedness of such Person, including
for borrowed money, whether current or funded, secured or unsecured;
(ii) any indebtedness of such Person evidenced by any note, bond, debenture
or other debt security; (iii) any payment obligation incurred for all or
any part of the purchase price of property or other assets or for the cost of
property or other assets constructed or of improvements thereto, other than
accounts payable included in current liabilities and incurred in respect of
property purchased in the Ordinary Course of Business; (iv) any commitment
by which such Person assures a creditor against loss (including contingent
reimbursement obligations with respect to letters of credit and bankers'
acceptances); (v) all indebtedness or liabilities of such Person secured by
a purchase money mortgage or other Lien on the Acquired Assets; (vi) all
obligations under leases which shall have been or must be, in accordance with
GAAP, recorded as capital leases in respect of which such Person is liable,
contingently or otherwise, as obligor, guarantor or otherwise, or with respect
to which obligations such Person assures a creditor against loss; (vii) all
accrued interest, fees and other expenses owed with respect to the indebtedness
referred to herein, including but not limited to, prepayment penalties, letters
of credit and bankers' acceptances and consent fees; (viii) all obligations
(determined on the basis of actual, not notional, obligations) in respect of
interest rate protection agreements, interest rate swap agreements, foreign
currency exchange agreements or other interest or exchange rate hedging
agreements or arrangements; and (ix) all indebtedness of third Persons of
the type referred to herein which is directly or indirectly guaranteed by such
Person or which such Person has agreed (contingently or otherwise) to purchase,
assume or otherwise acquire or in respect of which it has otherwise assured a
creditor against loss.
"Insider" means, any
Executive Officer, director, governing body member, stockholder, partner in a
partnership or Affiliate, as applicable, of any Seller or any predecessor or
Affiliate of any Seller or any individual related by marriage or adoption to any
such individual or any entity in which any such Person owns any beneficial
interest.
"Intellectual
Property" means all of the following in any jurisdiction throughout the
world: (i) patents, patent applications and patent disclosures,
together with all reissuances, continuations, continuations-in-part, revisions,
extensions and reexaminations thereof; (ii) trademarks, service marks,
trade dress, logos, slogans, trade names, and corporate names (and all
translations, adaptations, derivations and combinations of the foregoing) and
Internet domain names and corporate names, together with all goodwill associated
with each of the foregoing; (iii) copyrights, mask works and copyrightable
works; (iv) applications, registrations and renewals for any of the
foregoing; (v) trade secrets and confidential business information
(including ideas, research and development, know-how, inventions, formulas,
compositions, manufacturing and production processes and techniques, designs,
drawings and specifications), (vi) computer software (including
source code, executable code, data, databases and documentation); and
(vii) all other intellectual property.
"Inventory" means all
inventory of any kind or nature, whether or not prepaid, and wherever located,
held or owned by any Seller including, without limitation, all raw materials,
work in process, semi-finished and finished products, replacement and spare
parts, packaging materials, operating supplies, and fuels and other and similar
items, but not including land held as inventory in connection with the Motorhome
Resorts Business or any Inventory held exclusively in connection with the
Roadmaster Cargo Trailer Business.
"Knowledge of Sellers"
shall mean the actual knowledge of any Executive Officer of
ParentCo.
"Liability" means any
liability (whether known or unknown, whether asserted or unasserted, whether
absolute or contingent, whether accrued or unaccrued, whether liquidated or
unliquidated, and whether due or to become due and regardless of when asserted),
including, without limitation, any liability for Taxes.
"Lien" or "Liens" means any lien
(statutory or otherwise), hypothecation, encumbrance, security interest,
mortgage, pledge, restriction, charge, instrument, license, preference,
priority, security agreement, easement, covenant, encroachment, option or other
interest in the subject property, including any right of recovery, Tax
(including foreign, federal, state and local Tax), Order of any Governmental
Authority or other Claim thereagainst or therein, of any kind or nature
(including (i) any conditional sale or other title retention agreement and any
lease having substantially the same effect as any of the foregoing, (ii) any
assignment or deposit arrangement in the nature of a security device, (iii) any
claim based on any theory that Purchaser is a successor, transferee or
continuation of Sellers or the Business, and (iv) any leasehold interest,
license or other right, in favor of a Third Party or a Seller, to use any
portion of the Acquired Assets), whether secured or unsecured, choate or
inchoate, filed or unfiled, scheduled or unscheduled, noticed or unnoticed,
recorded or unrecorded, contingent or non-contingent, material or non-material,
known or unknown.
"Licensed Facilities"
shall have the meaning set forth in Section 6.11
hereof.
"Material Adverse
Change" or "Material Adverse
Effect" means, any event, change or circumstance that individually or in
the aggregate results in or would reasonably be expected to result in a material
adverse change or material adverse effect in the condition of the Acquired
Assets, taken as a whole, the ability of Sellers to consummate the transactions
contemplated hereby or the ability of Purchaser to own and operate the Acquired
Assets and the Business after the Closing; provided, however, that none of
the following events, changes or circumstances (individually or when aggregated
with any one or more of the other such changes, events or circumstances) shall
be deemed to be or constitute a Material Adverse Change or a Material Adverse
Effect, and none of the following changes, events or circumstances (individually
or when aggregated with any one or more of the other such changes, events or
circumstances) shall be taken into account when determining whether a Material
Adverse Change or a Material Adverse Effect has occurred: (i) actions or
omissions taken or not taken by or on behalf of Sellers in compliance with a
specific request from or consented to in writing by Purchaser following the
execution of this Agreement, (ii) events, changes or circumstances arising out
of, resulting from or caused by the announcement or the pendency of this
Agreement (including any action or inaction by the customers, suppliers,
landlords, employees, consultants or competitors of Sellers as a result
thereof), (iii) the commencement of the Chapter 11 Cases or the events, changes
or circumstances that substantially contributed to, or resulted in, the
commencement of the Chapter 11 Cases, (iv) events, changes or circumstances
arising out of, resulting from or caused by the general market, economic or
political conditions, (v) events, changes or circumstances resulting from or
arising out of general market, economic or political conditions in the
industries in which Sellers conduct business, and (vi) events, changes, or
circumstances to the extent to which Purchaser would be compensated through a
reduction to the Estimated Cash Portion pursuant to Section 3.1
hereof.
"Material Contract"
shall have the meaning set forth in Section 4.21(c)
hereof.
"Missing Equipment"
means any machinery, tooling or equipment listed on the Asset Register which is
missing, destroyed, or materially damaged at the time of the Pre-Closing Audit
or the Closing.
"Monaco Dealers" means
any Person authorized by any Seller to be a dealer of, or granted the right to
purchase for resale Sellers' gasoline and diesel-powered motorhomes, and towable
recreational vehicles.
"Monaco Dealer
Agreement" means the dealer agreements between any Seller and any of the
Monaco Dealers, including all amendments, supplements, annexes, schedules and
addendums thereto, together with any other documents incorporated into such
agreements by reference.
"Monaco Dealer
Network" means Sellers' proprietary dealer networks comprised of Monaco
Dealers and other distribution channels in the United States and Canada,
together with distribution channels in any export markets that Sellers'
participate in.
"Motorhome Resorts
Business" means the activities carried on by Sellers and any of their
Affiliates relating exclusively to the purchase, development, marketing, rental,
use and sale of real property used or intended to be used as a resort
destination for owners of motorhomes and other recreational vehicles; provided, however, that the
Motorhome Resorts Business shall not include the Intellectual Property described
in Section 2.1(a)(iii).
"Navistar ParentCo"
means Navistar International Corporation, a Delaware corporation.
"Notice" means any
summons, citation, directive, Order, claim, litigation, proceeding, judgment,
letter or other communication, written or oral, actual or threatened, from the
United States Environmental Protection Agency and any Governmental Authority, or
any other entity or any individual and shall include the imposition of any Lien
on property owned, leased, occupied or used by any Seller pursuant to any
Environmental Law.
"Order" means any
decree, order, injunction, rule, judgment, consent of or by any Governmental
Authority.
"Ordinary Course of
Business" means the operation of the Business by Sellers in the usual and
ordinary course in a manner substantially similar to the manner in which Sellers
operated prior to the commencement of the Chapter 11 Cases (including,
without limitation, with respect to quantity and frequency).
"Owned Real Property"
means all land and all buildings, structures, fixtures and other improvements
located thereon, and all easements, rights of way, servitudes, tenements,
hereditaments, appurtenances, privileges and other rights with respect thereto
owned by any Seller.
"ParentCo" has the
meaning set forth in the Preamble hereto.
"Permits" means
licenses, permits, approvals, certificates of occupancy, authorizations,
operating permits, registrations, plans and the like.
"Permitted Liens"
means (i) statutory liens for Taxes on real property that are not yet
delinquent, (ii) easements, covenants, conditions, restrictions and other
matters of record affecting real property, leasehold estates or personalty or
any interest therein (excluding any rights of appeal from the Sale Order) that
(a) appear on the lender title insurance policies concerning such Owned Real
Property issued to Bank of America, N.A. and Ableco Finance LLC in November
2008, (b) appear on the title reports or commitments obtained by Purchaser on or
prior to the date of this Agreement in connection with the transaction
contemplated by this Agreement or (c) do not in any material respect detract
from the value thereof and do not individually or in the aggregate in any
material respect interfere with the use, ownership or operation of the property
subject thereto in the Business, excluding Liens that will be removed and
stricken as against the Acquired Assets pursuant to the Sale Order,
(iii) the effect of any building and zoning regulations, now existing or
hereafter in effect with respect to the Owned Real Property that are not
violated by the current use of the Owned Real Property, (iv) oil, mineral
and/or water rights, and claims of title thereto, shown by the public records,
and (v) discrepancies, conflicts in boundary lines, shortages in area or
encroachments which an inspection or survey of the Owned Real Property would
disclose.
"Person" means any
corporation, partnership, joint venture, limited liability company,
organization, entity, authority or natural person.
"Pre-Closing Audit"
has the meaning set forth in Section 3.1(c)
hereof.
"Proceeding" shall
have the meaning set forth in Section 2.4(a)(ix)
hereof.
"Product Liabilities"
means any Liabilities or obligations for product liability occurrences
(including occurrences relating to the destruction of property, personal injury
or death or any occurrence resulting from any failure to warn or any defect in
design, engineering, assembly or production).
"Purchase Price" shall
have the meaning set forth in Section 3.1(a)
hereof.
"Purchase Price
Calculation" shall have the meaning set forth in Section 3.1(c)
hereof.
"Purchaser" shall have
the meaning set forth in the Preamble hereto.
"Qualifying Bid" shall
have the meaning set forth in Section 8.2(c)(vii) hereof.
"Regulation" means any
law, statute, regulation, ruling, or Order of, administered or enforced by or on
behalf of, any Governmental Authority.
"Rehired Employees"
means each employee of Sellers hired by Purchaser.
"Release" shall have
the meaning set forth in CERCLA.
"Roadmaster Cargo Trailer
Business" means the activities carried on by Sellers and their Affiliates
relating exclusively to the design, manufacture, marketing, distribution and
sale of towable cargo and sport trailers under the "Roadmaster", "Predator" and
"R-Sport" brand names; provided, however, that the
Roadmaster Cargo Trailer Business shall not include the activities carried on by
Sellers and their Affiliates relating to the Roadmaster Rail Chassis Business,
the Bison Trailer Business and the Intellectual Property described in Section 2.1(a)(ii).
"Roadmaster Rail Chassis
Business" means the activities carried on by Sellers and their Affiliates
relating to the design and manufacture of specialized stripped motorhome chassis
for all purposes.
"Rule" or "Rules" means the
Federal Rules of Bankruptcy Procedure.
"RV Finished Goods
Inventory" means finished goods Inventory of the Business, but excluding
the Chassis Inventory.
"RV Raw Material
Inventory" means raw materials Inventory of the Business.
"RV WIP Inventory"
means work in process Inventory of the Business.
"RVIA" shall have the
meaning set forth in Section 2.1(a)(xxiii)
hereof.
"Sale Hearing" means
the hearing of the Bankruptcy Court to approve this Agreement and the
transactions contemplated herein.
"Sale Motion" shall
have the meaning set forth in Section 6.6(b)
hereof.
"Sale Order" means the
order of the Bankruptcy Court, in the form of Exhibit B
attached hereto, to be entered by the Bankruptcy Court pursuant to
Sections 363 and 365 of the Bankruptcy Code and (i) approving this
Agreement and the transactions contemplated hereby; (ii) approving the sale
of the Acquired Assets to Purchaser free and clear of all Liens (other than
Permitted Liens) pursuant to Section 363(f) of the Bankruptcy Code,
(iii) approving the assumption and assignment to Purchaser of the Assumed
Executory Contracts, without adequate assurance of future performance liability
pursuant to Section 365(f)(2) of the Bankruptcy Code, except Purchaser's
promise to perform following the Closing obligations under the Assumed Executory
Contracts; (iv) transferring and assigning the Assumed Executory Contracts
such that the Assumed Executory Contracts will be in full force and effect from
and after the Closing with non-debtor parties being barred and enjoined from
asserting against Purchaser, among other things, defaults, breaches or claims of
pecuniary losses existing as of the Closing or by reason of the Closing;
(v) finding that Purchaser is a good-faith purchaser entitled to the
protections of Section 363(m) of the Bankruptcy Code; (vi) confirming
that Purchaser is acquiring the Acquired Assets free and clear of the Unassumed
Liabilities and providing for a full release of Purchaser with respect to the
Unassumed Liabilities; (vii) confirming that to the extent Purchaser is
owed funds from Sellers pursuant to this Agreement, any liability of a Seller to
Purchaser under this Agreement shall, pursuant to section 364(c)(1) of the
Bankruptcy Code, constitute a super-priority administrative expense in the
Sellers' Chapter 11 Cases with priority over all administrative expenses of the
kind specified in section 503(b) or 507(a) of the Bankruptcy Code,
(viii) providing that the provisions of Rules 6004(h) and 6006(d) of the
Federal Rules of Bankruptcy Procedure are waived and there will be no stay of
execution of the Sale Order under Rule 62(a) of the Federal Rules of Civil
Procedure; (ix) retaining jurisdiction of the Bankruptcy Court to interpret
and enforce the terms and provisions of this Agreement; and (x) authorizing
and approving the results of the Auction.
"Schedules" means the
schedules attached hereto (including, without limitation, the Disclosure
Schedules).
"Seller" and "Sellers" shall have
the meaning set forth in the Preamble hereto.
"Seller Claims" shall
have the meaning set forth in Section 6.15.
"Sellers' Insurance
Policies" shall have the meaning set forth in Section 6.15.
"Sellers' Last Quarterly
Report" means ParentCo's Quarterly Report on Form 10-Q for the fiscal
quarter ended September 27, 2008.
"Subsidiary" means,
with respect to any Person, any corporation a majority of the total voting power
of shares of stock of which is entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by that Person or
one or more of the other Subsidiaries of that Person or a combination thereof,
or any partnership, limited liability company, association or other business
entity a majority of the partnership or other similar ownership interest of
which is at the time owned or controlled, directly or indirectly, by that Person
or one or more Subsidiaries of that Person or a combination
thereof. For purposes of this definition, a Person is deemed to have
a majority ownership interest in a partnership, limited liability company,
association or other business entity if such Person is allocated a majority of
the gains or losses of such partnership, limited liability company, association
or other business entity or is or controls the managing director or general
partner of such partnership, limited liability company, association or other
business entity.
"Systems" means the
computer systems, including software, hardware, networks and interfaces owned or
leased by Sellers which are used in, or held for use in, the
Business.
"Tax" and, with
correlative meaning, "Taxes" mean with
respect to any Person (i) all federal, state, local, county, foreign and
other taxes, assessments or other government charges, including, without
limitation, any income, alternative or add-on minimum tax, estimated gross
income, gross receipts, sales, use, ad valorem, value added,
transfer, capital stock franchise, profits, license, registration, recording,
documentary, intangibles, conveyancing, gains, withholding, payroll, employment,
social security (or similar), unemployment, disability, excise, severance,
stamp, occupation, premium, property (real and personal), environmental or
windfall profit tax, custom duty or other tax, governmental fee or other like
assessment, charge, or tax of any kind whatsoever, together with any interest,
penalty, addition to tax or additional amount imposed by any Governmental
Authority responsible for the imposition of any such tax (domestic or foreign)
whether such Tax is disputed or not, (ii) Liability for the payment of any
amounts of the type described in clause (i) above
relating to any other Person as a result of being party to any agreement to
indemnify such other Person, being a successor or transferee of such other
Person, or being a member of the same affiliated, consolidated, combined,
unitary or other group with such other Person, or (iii) Liability for the
payment of any amounts of the type described in clause (i)
arising as a result of being (or ceasing to be) a member of any Affiliated Group
(or being included (or required to be included) in any Tax Return relating
thereto).
"Tax Return" means any
report, return, declaration, claim for refund or other information or statement
supplied or required to be supplied by any Seller relating to Taxes, including
any schedules or attachments thereto and any amendments thereof.
"Third Party" means
any Person other than Sellers, Purchaser or any of their respective
Affiliates.
"Title Commitments"
shall have the meaning set forth in Section 8.3
hereof.
"Title Insurer" shall
have the meaning set forth in Section 8.3
hereof.
"Title Policies" shall
have the meaning set forth in Section 8.3
hereof.
"Transaction
Documents" means this Agreement, and all other agreements, instruments
and certificates to be executed and delivered by any party pursuant to this
Agreement.
"Unassumed
Liabilities" shall have the meaning set forth in Section 2.4
hereof.
"WARN Act" means the
Worker Adjustment and Retraining Act of 1988, and any similar or related
Regulation.
1.2 Rules of
Construction. Unless
the context otherwise clearly indicates, in this Agreement:
(a) the
singular includes the plural;
(b) "includes"
and "including" are not limiting;
(c) "may not"
is prohibitive and not permissive; and
(d) "or" is
not exclusive.
PURCHASE
AND SALE; ASSUMPTION OF CERTAIN LIABILITIES
2.1 Purchase and Sale of
Assets.
(a) Subject
to the terms and conditions set forth in this Agreement, at the Closing, Sellers
shall sell, convey, assign, transfer and deliver to Purchaser, free and clear of
all Liens (except for the Assumed Obligations and Permitted Liens), and
Purchaser shall purchase, acquire and take assignment and delivery of, for the
consideration specified in Section 3.1, all
properties, assets, rights, titles and interests of every kind and nature, of
Sellers (including indirect and other forms of beneficial ownership) as of the
Closing Date, which are used in or related to the Business, whether tangible or
intangible, real or personal and wherever located and by whomever possessed,
including, without limitation, all of the following assets but excluding
Excluded Assets pursuant to Section 2.3 (all of the
assets to be sold, conveyed, assigned, transferred and delivered to Purchaser
hereunder herein called the "Acquired
Assets"):
(i) all
Intellectual Property used in or related to the Business (including all of the
Intellectual Property set forth on Schedule 4.19), together
with all income, royalties, damages and payments due or payable as of the
Closing or thereafter (including damages and payments for past, present or
future infringements or misappropriations thereof), the right to sue and recover
for past infringements or misappropriations thereof, and any and all
corresponding rights that, now or hereafter, may be secured throughout the world
and all copies and tangible embodiments of any such Intellectual Property in
Sellers' possession or control;
(ii) all
trademarks, service marks, logos, slogans, trade names, and corporate names (and
all translations, adaptations, derivations and combinations of the foregoing)
and Internet domain names incorporating "Roadmaster", "R-Sport" or any
derivations therefrom and all goodwill associated with any of the foregoing,
together with all income, royalties, damages and payments due or payable to
Sellers as of the Closing or thereafter (including damages and payments for
past, present or future infringements or misappropriations thereof), the right
to sue and recover for past infringements or misappropriations thereof, and any
and all corresponding rights that, now or hereafter, may be secured throughout
the world;
(iii) all
trademarks, service marks and logos incorporating "Signature Resorts Design"
logo (but excluding the word mark "Signature Resorts" within such logo) or any
derivations therefrom and all goodwill associated with any of the foregoing,
together with all income, royalties, damages and payments due or payable to
Sellers as of the Closing or thereafter (including damages and payments for
past, present or future infringements or misappropriations thereof), the right
to sue and recover for past infringements or misappropriations thereof, and any
and all corresponding rights that, now or hereafter, may be secured throughout
the world;
(iv) all of
Sellers' rights existing under the Assumed Executory Contracts set forth on
Schedule 2.1(a)(iv);
(v) all
Acquired Owned Real Property set forth on Schedule 2.1(a)(v);
(vi) all
supplier based tooling, wherever located;
(vii) all
signage and other materials incorporating the logos, trademarks, trade names,
corporate names, service marks, or brand designations of Sellers, which are
owned by any Seller but are leased to or otherwise held by Monaco
Dealers;
(viii) all
Systems required to operate the Business;
(ix) all
leasehold improvements and all machinery, tooling (including all tooling and
"old" molds for former models), equipment (including all transportation,
vehicles, testing equipment and office equipment), fixtures, trade fixtures,
computer equipment and hardware, telephone systems, network systems and
furniture owned by Sellers and, in each case, used in or related to the
Business, wherever located, including, without limitation, all such items which
are located in any building, warehouse, office or other space leased, owned or
occupied by Sellers or otherwise used in or related to the Business, including
each of the foregoing that is set forth in the Asset Register set forth on Schedule 2.1(a)(ix) (the
"Asset
Register");
(x) all
Inventory used in or related to the Business;
(xi) all
office supplies, production supplies and other supplies, spare parts, other
miscellaneous supplies, and other tangible property of any kind used in or
related to the Business, wherever located, including, without limitation, all
property of any kind located in any building, office or other space leased,
owned or occupied by Sellers or in any warehouse where any of Sellers'
properties and assets may be situated;
(xii) all RV
show deposits related to the Business;
(xiii) all
claims, indemnities, warranties, guarantees, refunds, causes of action, rights
of recovery, rights of set-off and rights of recoupment of every kind and nature
(whether or not known or unknown or contingent or non-contingent) related to the
Acquired Assets or the Business (other than those related to the Excluded Assets
or the Unassumed Liabilities);
(xiv) the right
to receive and retain mail and other communications used in or related to the
Business;
(xv) all
deposits and prepayments held by Third Parties pursuant to any Assumed Executory
Contract;
(xvi) all Books
and Records used in or related to the Business;
(xvii) all
advertising, marketing and promotional materials and all other printed or
written materials used in or related to the Business;
(xviii) all
transferable Permits, licenses, certifications and approvals from all
permitting, licensing, accrediting and certifying agencies, and the rights to
all data and records held by such permitting, licensing and certifying agencies,
used in or related to the Business;
(xix) all
goodwill as a going concern and all other intangible properties used in or
related to the Business;
(xx) all
telephone numbers and IP addresses used in or related to the
Business;
(xxi) all
promotional allowances, vendor rebates and similar items related to the
Business;
(xxii) the
rights to make claims and to receive proceeds under insurance policies to the
extent related to an Acquired Asset or the Business or to the extent a liability
is asserted against Purchaser or any of its Affiliates in connection with the
Acquired Assets or the Business;
(xxiii) ParentCo's
membership in the Recreation Vehicle Industry Association ("RVIA") and all
deposits previously paid to RVIA associated with such membership;
and
(xxiv) all
security deposits relating to Assumed Executory Contracts.
(b) All of
the Acquired Assets shall be sold, assigned, transferred, conveyed and delivered
to Purchaser free and clear of all Liens pursuant to Section 363(f) of the
Bankruptcy Code (other than Permitted Liens), whether arising prior to or
subsequent to the date of the filing of the Chapter 11 petitions of
Sellers.
(c) Notwithstanding
anything in this Agreement to the contrary, Purchaser may, consistent with the
Order to be sought pursuant to Section 6.6(c) hereof,
revise the Disclosure Schedules setting forth the Acquired Assets and the
Excluded Assets to add or eliminate any lease, Contract or other asset (other
than adding Facilities to Schedule 2.1(a)(v)) at any
time on or prior to the fifteenth (15th) business day prior to the Sale Hearing
and require Sellers to give notice to the parties to any such lease or Contract;
provided that
such change shall not affect the amount of the Purchase Price except that, with
respect to Contracts added to the Acquired Assets after the date hereof pursuant
to this Section 2.1(c), Purchaser
shall pay (on behalf of Sellers) any Cure Payments associated with such
Contracts and deduct the amount of such Cure Payments relating thereto from the
Purchase Price subject to Section 2.6
hereof.
2.2 Assignment and Assumption of
Liabilities.
(a) Subject
to the terms and conditions set forth in this Agreement, Purchaser shall only
assume from Sellers and thereafter be responsible for the payment, performance
or discharge of the following liabilities and obligations of Sellers (all such
liabilities and obligations herein called the "Assumed
Obligations"):
(i) obligations
under the Assumed Executory Contracts first arising after the Closing (but
excluding liabilities for breaches of such contracts or commitments occurring
prior to the Closing Date); and
(ii) up to
$2,000,000 in other liabilities (such as trade or accounts payable with key
suppliers and/or certain rebates to dealers), if any, expressly set forth on
Schedule 2.2(a)(ii)
attached hereto (the "Section 2.2(a)(ii) Liabilities"), which
shall reduce the Cash Portion on a dollar-for-dollar basis in accordance with
Section 3.1(a)(i)(D). Notwithstanding
anything in this Agreement to the contrary, Purchaser may revise Schedule 2.2(a)(ii) on or
before May 15, 2009 to add (subject to the $2,000,000 cap) or remove any Section
2.2(a)(ii) Liabilities from such Schedule 2.2(a)(ii).
(b) Notwithstanding
anything in this Agreement to the contrary, Sellers hereby acknowledge and agree
that Purchaser is not assuming from Sellers, or is in any way responsible for,
the Unassumed Liabilities.
(c) Section 2.2(a) shall not
limit any claims or defenses Purchaser may have against any party other than
Sellers. The transactions contemplated by this Agreement shall in no
way expand the rights or remedies of any Third Party against Purchaser or
Sellers as compared to the rights and remedies which such Third Party would have
had against Sellers absent the Chapter 11 Cases had Purchaser not assumed
such Assumed Obligations.
2.3 Excluded
Assets. Notwithstanding
anything to the contrary in this Agreement, the following assets of Sellers
shall be retained by Sellers and are not being sold or assigned to Purchaser
hereunder (all of the following are referred to collectively as the "Excluded
Assets"):
(a) any and
all rights under this Agreement and avoidance claims or causes of action arising
under the Bankruptcy Code or applicable state law, including, without
limitation, all rights and avoidance claims of Sellers arising under
chapter 5 of the Bankruptcy Code;
(b) all Owned
Real Property and any other interests in real property, in each case other than
the Acquired Owned Real Property;
(c) all
leases of Sellers other than the Assumed Equipment Leases (the "Excluded Leases") and
all Contracts other than the Assumed Executory Contracts (the "Excluded
Contracts");
(d) any asset
or Contract set forth on Schedule 2.3(d) attached
hereto; provided that
Purchaser may amend the Disclosure Schedules setting forth the Acquired Assets
and the Excluded Assets attached hereto at any time on or before five
(5) days prior to the Closing Date in order to exclude from the definition
of Acquired Asset, and include in the definition of Excluded Asset, any other
asset, lease or Contract not otherwise excluded, as the case may be; provided, however, that such
exclusion shall not serve to reduce or otherwise affect the amount of the
Purchase Price;
(e) all cash
(including, without limitation, checking account balances, certificates of
deposit and other time deposits and petty cash) ("Cash") and marketable
and other securities;
(f) prepayments
and deposits other than those included in Section 2.1(a) and all
claims, indemnities, warranties, guarantees, refunds, causes of action, rights
of recovery, rights of set-off and rights of recoupment other than those
included in Section 2.1(a);
(g) all of
Sellers' accounts and notes receivable (whether current or noncurrent) and all
causes of action specifically pertaining to the collection of the
foregoing;
(h) all
assets, properties, rights, titles and interests, all Inventory and all
Intellectual Property, used exclusively in connection with the operation of the
Roadmaster Cargo Trailer Business;
(i) any
aircraft hangers or related assets (including any aircraft) owned, leased or
guaranteed by any Seller, wherever located;
(j) all
assets, rights, titles and interests, all Inventory and all Intellectual
Property, used exclusively in connection with the operation of the Motorhome
Resorts Business, including land held as inventory, wherever
located
(k) all
machinery, tooling, equipment, trade fixtures, computer equipment and hardware,
telephone systems, network systems and furniture owned by Sellers and not used
in or related to the Business or set forth on Schedule 2.3(k) (if
any);
(l) all of
Sellers' Tax refunds, rebates, credits and similar items relating to any period,
or any portion of any period, on or prior to the Closing Date;
(m) U.S.
intent-to-use trademark application for NAUTICA (serial number 77/188276 filed
on 5/23/2007) and all goodwill associated therewith;
(n) all real
and tangible personal property presently located at the 4505 Monaco Way,
Wildwood, Florida 34785 Owned Real Property (the "Wildwood Assets");
provided, however, that the
Wildwood Assets shall not include any Intellectual Property of Sellers used in
or related to the Business;
(o) income
Tax Returns of Sellers and related materials;
(p) the
equity securities or other ownership interest of any Seller; and
(q) the
equity securities or other ownership interest of any of Sellers'
Affiliates.
2.4 No Other Liabilities
Assumed.
(a) Each
Seller acknowledges and agrees that pursuant to the terms and provisions of this
Agreement, Purchaser will not assume, or in any way be liable or responsible
for, any Liability or obligation of any Seller (including Liabilities relating
to (x) the Excluded Assets and (y) the pre-petition or post-petition (but
pre-Closing) operation of the Business or the Acquired Assets (and the use
thereof)), whether relating to or arising out of the Business, the Excluded
Assets or the Acquired Assets or otherwise, whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to become due,
other than the Assumed Obligations. In furtherance and not in
limitation of the foregoing, except as specifically set forth in Section 2.2, neither
Purchaser nor any of its Affiliates shall assume, and shall not be deemed to
have assumed, any Indebtedness, Claim, Liability or other obligation of any
Seller or any predecessor or Affiliate of any Seller whatsoever (other than the
Assumed Obligations), including, but not limited to the following (collectively,
the "Unassumed
Liabilities"):
(i) all
obligations, Claims, or Liabilities of Sellers or any predecessor or Affiliate
of any Seller that relate to any of the Excluded Assets or Excluded
Contracts;
(ii) any
amounts due or which may become due or owing under the Assumed Executory
Contracts with respect to the period prior to Closing (including, without
limitation, any Cure Payments);
(iii) the
Excluded Environmental Liabilities (regardless of whether such Liabilities
accrue in the first instance to Purchaser or to any Seller or Affiliate of any
Seller) to the fullest extent permitted by any Regulation;
(iv) subject
to Section 6.10, all
obligations, Claims, or Liabilities of Sellers or any predecessor or Affiliate
of any Seller or for which Sellers or any predecessor or Affiliate of any Seller
could be liable relating to Taxes accrued or due and payable at or prior to the
Closing (including with respect to the Acquired Assets or otherwise) including,
without limitation, any Taxes that will arise as a result of the sale of the
Acquired Assets or the assumption of the Assumed Obligations pursuant to this
Agreement and any deferred Taxes of any nature;
(v) all
obligations, Claims, or Liabilities for any legal, accounting, investment
banking, brokerage or similar fees or expenses incurred by any Seller or any
predecessor or Affiliate of any Seller in connection with, resulting from or
attributable to the transactions contemplated by this Agreement or
otherwise;
(vi) all
Indebtedness of any Seller or any predecessor or Affiliate of any
Seller;
(vii) all
obligations and Liabilities of Sellers related to the right to or issuance of
any capital stock or other equity interest of any Seller or any predecessor or
Affiliate of any Seller, including, without limitation, any stock options or
warrants;
(viii) all
obligations and Liabilities of Sellers or any predecessor or Affiliate of any
Seller resulting from, caused by or arising out of, or which relate to, directly
or indirectly, the conduct of Sellers or ownership or lease of any properties or
assets or any properties or assets previously used by Sellers or any predecessor
or Affiliate of any Seller, or other actions or omissions of Sellers or any
predecessor or Affiliate of any Seller, including, without limitation, any
amounts due or which may become due or owing under the Assumed Executory
Contracts with respect to the period prior to Closing (except for Cure
Payments), whether known or unknown on the date hereof;
(ix) all
obligations and Liabilities of Sellers or any predecessor or Affiliate of any
Seller resulting from, caused by or arising out of, or which relate to, directly
or indirectly, the conduct of Sellers or any predecessor or Affiliate of any
Seller anywhere (including their development, manufacturing, marketing, sale or
distribution activities) or the ownership or lease of any properties or assets
or any properties or assets previously used by Sellers or any predecessor or
Affiliate of any Seller at any time, or other actions, omissions or events
occurring prior to the Closing and which (i) constitute, may constitute or are
alleged to constitute a tort, breach of contract or violation of any rule,
Regulation, treaty or other similar authority or (ii) relate to any and all
Claims, disputes, demands, actions, Liabilities, damages, suits in equity or at
law, administrative, regulatory or quasi-judicial proceedings, audits,
investigations, arbitrations, complaints, grievances, proceedings, accounts,
costs, expenses, setoffs, contributions, attorneys' fees and/or causes of action
of whatever kind or character ("Proceeding") against
Sellers or any predecessor or Affiliate of any Seller, whether past, present,
future, known or unknown, liquidated or unliquidated, accrued or unaccrued,
pending or threatened;
(x) any
obligation or Liability arising out of any Proceeding commenced against Sellers
or any predecessor or Affiliate of any Seller after the Closing and arising out
of, or relating to, any occurrence or event happening prior to the
Closing;
(xi) all
obligations, Claims or Liabilities (whether known or unknown) with respect to
the employees or former employees, or both (or their representatives) of Sellers
or any predecessor or Affiliate of any Seller arising prior to the Closing Date,
including, without limitation, payroll, vacation, sick leave, worker's
compensation, unemployment benefits, pension benefits, employee stock option or
profit sharing plans, health care plans or benefits, or any other employee plans
or benefits or other compensation of any kind to any employee, and obligations
of any kind including, without limitation, any Liability pursuant to the WARN
Act for any action or inaction prior to the Closing;
(xii) any
obligation or Liability arising under any Employee Benefit Plan or any other
employee benefit plan, program or arrangement at any time maintained, sponsored
or contributed to by Sellers or any predecessor or Affiliate of any Seller or
any ERISA Affiliate, or with respect to which Sellers or any predecessor or
Affiliate of any Seller or any ERISA Affiliate has any Liability;
(xiii) all
accounts payable of Sellers or any predecessor or Affiliate of any Seller
arising prior to the Closing;
(xiv) any
obligation or Liability arising out of or relating to products and/or services
of Sellers or any predecessor or Affiliate of any Seller to the extent provided,
developed, made, manufactured, marketed, sold or distributed prior to the
Closing, including any obligation or Liability for (a) infringement or
misappropriation of Intellectual Property of any Person, (b) Product Liabilities
and (c) product recalls or similar actions;
(xv) any
obligation or Liability under any Assumed Executory Contract which arises after
the Closing but which arises out of or relates to any breach that occurred prior
to the Closing;
(xvi) any
obligation or Liability under any contract, agreement, lease, mortgage,
indenture or other instrument of Sellers or any predecessor or Affiliate of any
Seller not assumed by Purchaser hereunder;
(xvii) any
obligation or Liability under any employment, collective bargaining, severance,
change of control, retention or termination agreement with any employee or
former employee, union, labor organization or other employee representative,
consultant or contractor (or their representatives) of Sellers or any
predecessor or Affiliate of any Seller (including, without limitation, any
obligations to pay bonuses, change of control payments or similar payment
obligations, or other forms of compensation arising, vesting (whether fully or
partially) or payable (whether or not at the Closing), to any current or former
directors, officers, employees, consultants or agents of Sellers or any of their
Affiliates as a result of the consummation of the transactions contemplated by
the Agreement);
(xviii) any
obligation or Liability arising out of or relating to any grievance by current
or former employees of Sellers or any predecessor or Affiliate of any Seller,
whether or not the aggrieved employees are hired by Purchaser;
(xix) any and
all warranty obligations to customers and/or dealers of Sellers or any of their
Affiliates, or to retail consumers or to any other Person;
(xx) all
obligations and Liabilities of Sellers or any predecessor or Affiliate of any
Seller resulting from, caused by or arising out of, or which relates to, (1) the
business dealings or relationship between Sellers and the Monaco Dealers under
contract, statute, Regulation or otherwise, or (2) the termination of any Monaco
Dealer Agreement or other arrangement or understanding with a Monaco
Dealer;
(xxi) any
obligation or Liability of Sellers or any predecessor or Affiliate of any Seller
to any shareholder or Affiliate of any Seller;
(xxii) any
obligation or Liability to indemnify, reimburse or advance amounts to any
officer, director, employee or agent of Sellers or any predecessor or Affiliate
of any Seller;
(xxiii) any
obligation or Liability to distribute to any Seller's shareholders or otherwise
apply all or any part of the consideration received hereunder;
(xxiv) any
obligation or Liability arising out of or resulting from non-compliance with any
law, ordinance, Regulation or treaty by Sellers or any predecessor or Affiliate
of any Seller;
(xxv) any
obligation or Liability for infringement or misappropriation arising from the
development, modification or use of any Intellectual Property on or before the
Closing;
(xxvi) any
obligation or Liability of Sellers under this Agreement or any other document
executed in connection herewith;
(xxvii) any
obligation or Liability of Sellers or any predecessor or Affiliate of any Seller
based upon such Person's acts or omissions occurring after the Closing;
and
(xxviii) the
Liabilities set forth on Schedule 2.4(a)(xxviii)
attached hereto.
(b) The
parties acknowledge and agree that disclosure of any obligation or Liability on
any Schedule to this Agreement shall not create an Assumed Obligation or other
Liability of Purchaser, except where such disclosed obligation has been
expressly assumed by Purchaser as an Assumed Obligation in accordance with the
provisions of Section 2.2
hereof.
2.5 Deemed Consents and
Cures. For
all purposes of this Agreement (including all representations and warranties of
Sellers contained herein), Sellers shall be deemed to have obtained all required
consents in respect of the assignment of any Assumed Executory Contract if, and
to the extent that, pursuant to the Sale Order or other Bankruptcy Court Order,
Sellers are authorized to assume and assign Assumed Executory Contracts to
Purchaser pursuant to Section 365 of the Bankruptcy Code and any applicable
Cure Payments have been satisfied by Purchaser, on behalf of Sellers, as
provided in this Agreement.
2.6 Cure
Payments. To
the extent that any Assumed Executory Contract is subject to a cure pursuant to
Section 365 of the Bankruptcy Code, Purchaser shall pay, on behalf of
Sellers, the amount of the Cure Payments set forth on Schedule 4.14, and
pursuant to Section 3.1(a) such
payment shall reduce dollar-for-dollar the Purchase Price by such Cure Payments
up to an amount not to exceed in the aggregate $550,000. If a Cure
Payment is not set forth on Schedule 4.14, or if any
Assumed Executory Contract is subject to a cure in excess of the amount set
forth next to such Assumed Executory Contract on Schedule 4.14, Sellers
shall pay the amount of such Cure Payment or the excess of such Cure Payment
over the amount set forth on Schedule 4.14 and shall
fully indemnify for and hold Purchaser harmless from any costs, expenses or
other Liabilities resulting from such cure obligations. In the event
that Sellers fail to pay such amount(s), Purchaser may pay such amount(s) (on
behalf of itself and Sellers) and offset such amount(s) against any amount(s)
Purchaser may owe Sellers. Sellers hereby agree and acknowledge that
the foregoing provision is in addition to, and not in derogation of, any
statutory or other remedy that Purchaser may have against
Sellers. With respect to Contracts added to the Acquired Assets after
the date hereof pursuant to Section 2.1(c), Purchaser
shall pay any Cure Payments associated with such Contract and deduct the amount
of such Cure Payments relating thereto from the Purchase Price, provided, however, that the
total amount of Cure Payments that can be deducted from the Purchase Price shall
in no event exceed $550,000.
2.7 Post-Closing Assignment of
Contracts. After
the Closing, with respect to any Contract which is not set forth on Schedule 2.1(a)(iv)
attached hereto and provided such Contract has not been rejected by Sellers
pursuant to Section 365 of the Bankruptcy Code, upon written notice(s) from
Purchaser, as soon as practicable, Sellers shall take all actions reasonably
necessary to assume and assign to Purchaser pursuant to Section 365 of the
Bankruptcy Code any Contract(s) set forth in Purchaser's notice(s); provided that any
applicable cure cost shall be satisfied by Purchaser at its own cost and
expense. Sellers agree and acknowledge that (i) they shall provide
Purchaser with reasonable advance notice of any motion(s) to reject any Contract
and (ii) the covenant set forth in this Section 2.7 shall survive
the Closing. Notwithstanding anything in this Agreement to the
contrary, on the date any Contract is assumed and assigned to Purchaser pursuant
to this Section 2.7, such
Contract shall be deemed an Assumed Executory Contract and deemed scheduled on
Schedule 2.1(a)(iv), under
the appropriate heading for all purposes under this Agreement.
BASIC
TRANSACTION
3.1 Payment of Purchase
Price.
(a) The
aggregate purchase price for the Acquired Assets (the "Purchase Price")
shall be (i) an amount equal to $52,000,000 (the "Estimated Cash
Portion") minus (A) the sum of
(x) sixty percent (60%) of the amount (if any) by which the RV Finished Goods
Inventory of Sellers as of the Closing Date as shown on the Closing Statement
(as defined in Section 3.1(c)
below and as prepared in accordance with the provisions thereof) (the "Closing RV Finished Goods
Inventory") is less than the Baseline RV Finished Goods Inventory, (y)
sixty-three percent (63%) of the amount (if any) by which the Chassis Inventory
of Sellers as of the Closing Date as shown on the Closing Statement (the "Closing Chassis
Inventory") is less than the Baseline Chassis Inventory, and
(z) twenty-nine percent (29%) of the sum of (I) the amount (if any) by
which the RV Raw Material Inventory of Sellers as of the Closing Date as shown
on the Closing Statement (the "Closing RV Raw Material
Inventory") is less than the Baseline RV Raw Material Inventory and (II)
the amount (if any) by which the RV WIP Inventory of Sellers as of the Closing
Date as shown on the Closing Statement (the "Closing RV WIP
Inventory") is less than the Baseline RV WIP Inventory (the sum of the
amounts described in subclauses (I) and
(II) being
referred to as the "Combined Raw and WIP
Shortfall"), minus (B) the net
book value of any Missing Equipment as shown on the Closing Statement, minus (C) the amount
of Cure Payments made by Purchaser on behalf of Sellers pursuant to Section 2.6; provided, however, that the
aggregate amount of such Cure Payments shall not exceed $550,000, minus (D) the
Section 2.2(a)(ii) Liabilities minus (E) the amounts
Purchaser is entitled to deduct from the Purchase Price under Section 6.10, Section 6.16 or any other
Section of this Agreement (the amount in subsection (i) above, the "Cash Portion"), and
(ii) the assumption of the Assumed Obligations.
(b) Notwithstanding
anything to the contrary in Section 3.1(a)(i), the Estimated
Cash Portion shall be reduced (i) in the case of the Closing RV Raw Material
Inventory and the Closing RV WIP Inventory, only if and to the extent that the
Combined Raw and WIP Shortfall exceeds $500,000 (on a gross basis before
application of the 29% factor referred to in Section 3.1(a)(i)(z) above) and
(ii) in the case of Missing Equipment, only if and to the extent that the net
book value of the Missing Equipment exceeds $500,000.
(c) Prior to
the Closing, ParentCo, Purchaser and their respective representatives shall
jointly, at a time or times determined by Purchaser and reasonably acceptable to
ParentCo, conduct a physical count of the Inventory and an inspection and audit
of the machinery, tooling and equipment of the Business (wherever located) (the
"Pre-Closing
Audit"). Purchaser and ParentCo shall confer in good faith
with each other in the conduct of the Pre-Closing Audit. Purchaser
shall pay the reasonable actual costs incurred by Sellers in conducting the
Pre-Closing Audit (but not in connection with any dispute related thereto,
except to the extent set forth in Section 3.1(e)
below). No later than seven (7) days prior to the Closing Date,
Purchaser shall deliver to ParentCo a schedule (the
"Closing
Statement"), setting forth the Closing RV Finished Goods Inventory, the
Closing Chassis Inventory, the Closing RV Raw Material Inventory, the Closing RV
WIP Inventory, the Missing Equipment, the Cure Payments and the Section 2.2(a)(ii) Liabilities and a certificate setting forth
the resulting Cash Portion calculated with reference to such amounts (together
with the Closing Statement, the "Purchase Price
Calculation"). The Closing Statement shall be prepared in a
manner consistent with GAAP and the methodologies used for valuing the Baseline
RV Finished Goods Inventory, the Baseline Chassis Inventory, the Baseline RV Raw
Materials Inventory and the Baseline RV WIP Inventory, each as set forth in the
Baseline Inventory
Schedule attached hereto.
(d) If within
four (4) days following the delivery of the Purchase Price Calculation, ParentCo
has not given Purchaser written notice of objection as to the Closing Statement
and the resulting Cash Portion calculated with reference to the Closing RV
Finished Goods Inventory, the Closing Chassis Inventory, the Closing RV Raw
Material Inventory, the Closing RV WIP Inventory, the Missing Equipment, the
Cure Payments and the Section 2.2(a)(ii)
Liabilities, which notice of objection shall specify in reasonable detail the
nature and dollar amount of any disagreement so asserted and shall be delivered
only if (and to the extent that) ParentCo reasonably and in good faith
determines that the Purchase Price Calculation and the resulting Cash Portion
calculated with reference thereto delivered by Purchaser is incorrect or has not
been determined in accordance with the guidelines and procedures set forth in
this Agreement (the "Objection Notice"),
then the Purchase Price Calculation as determined by Purchaser pursuant to Section 3.1(c) above
shall be binding and conclusive on the parties hereto.
(e) If
ParentCo timely delivers to Purchaser an Objection Notice and within three (3)
days of such delivery ParentCo and Purchaser fail to resolve in writing any
differences which they have with respect to the matters specified in the
Objection Notice, then ParentCo and Purchaser shall submit all matters (but only
such matters) that remain in dispute and that were properly included in the
Objection Notice to independent public accountants reasonably agreeable to
Purchaser and ParentCo (the "Independent
Accountants") for review and resolution of such
matters. ParentCo and Purchaser shall instruct the Independent
Accountants to make a final determination (the "Final Determination")
of the Closing RV Finished Goods Inventory, the Closing Chassis Inventory, the
Closing RV Raw Material Inventory, the Closing RV WIP Inventory, the Missing
Equipment, the Cure Payments and the Section 2.2(a)(ii) Liabilities and the resulting Cash Portion
calculated with reference to such amounts to the extent such amounts are in
dispute, in accordance with the guidelines and procedures set forth in this
Agreement. If issues are submitted to the Independent Accountants for
resolution, ParentCo and Purchaser shall cooperate with the Independent
Accountants during the term of its engagement and shall furnish or cause to be
furnished to the Independent Accountants such work papers and other documents
and information relating to the disputed issues as the Independent Accountants
may request and are available to that party or its agents and shall be afforded
the opportunity to present to the Independent Accountants any material relating
to the disputed issues and to discuss the issues with the Independent
Accountants. Notwithstanding the foregoing, Purchaser and ParentCo
shall instruct the Independent Accountants to not assign a value to any item in
dispute greater than the greatest value for such item assigned by Purchaser, on
the one hand, or ParentCo, on the other hand, or less
than the smallest value for such item assigned by Purchaser, on the one hand, or
ParentCo, on the other hand. Purchaser and
ParentCo shall also instruct the Independent Accountants to make the Final
Determination based solely on presentations by Purchaser and ParentCo which are
in accordance with the guidelines and procedures set forth in this Agreement
(i.e., not on the basis of an independent review). The Purchase Price
Calculation and the determination of the of the Closing RV Finished Goods
Inventory, the Closing Chassis Inventory, the Closing RV Raw Material Inventory,
the Closing RV WIP Inventory, the Missing Equipment, the Cure Payments and the
Section 2.2(a)(ii) Liabilities and the
resulting Purchase Price calculated with reference thereto shall become final
and binding on the parties on the date the Independent Accountants deliver the
Final Determination in writing to Purchaser and ParentCo, which shall be
requested by Purchaser and ParentCo to be delivered not more than seven (7) days
following submission of such disputed matters. The fees and expenses
of the Independent Accountants shall be allocated to the parties as determined
(and set forth in the Final Determination) by the Independent Accountants based
upon the relative success (in terms of percentages) of each party's
claim. For example, if the Final Determination reflects a 60-40
compromise of the parties' claims, the Independent Accountants would allocate
expenses 40% to the party whose claim was determined to be 60% successful and
60% to the party whose claim was determined to be 40% successful.
(f) At the
Closing, Purchaser shall be assigned the Acquired Assets and Assumed Obligations
and shall pay by wire transfer to Sellers (i) an amount in cash equal to the
Cash Portion, as set forth on the Purchase Price Calculation determined by
Purchaser, if ParentCo does not deliver an Objection Notice, or, in the
alternative, (ii) an amount in cash equal to the Cash Portion, as set forth on
the Purchase Price Calculation determined by the Independent Accountants
pursuant to Section 3.1(e), if
ParentCo timely submitted an Objection Notice to Purchaser, ParentCo and
Purchaser were unable to resolve their differences and the Independent
Accountants were requested to make a Final Determination pursuant to Section 3.1(e).
(g) Payments
made pursuant to this Section 3.1 shall be
allocated among the assets purchased in accordance with Section 12.10.
3.2 Further
Assurances. From
time to time after the Closing and without further consideration,
(i) Sellers, upon the request of Purchaser, shall execute and deliver such
documents and instruments of conveyance and transfer as Purchaser may reasonably
request in order to consummate more effectively the purchase and sale of the
Acquired Assets as contemplated hereby and to vest in Purchaser title to the
Acquired Assets transferred hereunder, or to otherwise more fully consummate the
transactions contemplated by this Agreement, and (ii) Purchaser, upon the
request of Sellers, shall execute and deliver such documents and instruments of
assumption as Sellers may reasonably request in order to confirm Purchaser's
Liability for the obligations specifically assumed hereunder or otherwise to
more fully consummate the transactions contemplated by this
Agreement.
REPRESENTATIONS
AND WARRANTIES OF SELLERS
Sellers
jointly and severally represent and warrant to Purchaser that the statements
contained in this Article IV are
true and correct as of the date of this Agreement, except as expressly set forth
in the disclosure schedules delivered by Sellers to Purchaser on the date hereof
(the "Disclosure
Schedule"). For the avoidance of doubt, if any section of the
Disclosure Schedule discloses an item or information in such a way as to make
its relevance to the disclosure required by another section of the Disclosure
Schedule reasonably apparent based on the substance of such disclosure, the
matter shall be deemed to have been disclosed in such other section of the
Disclosure Schedule, notwithstanding the omission of an appropriate cross
reference to such other section.
4.1 Validity of
Agreement. Subject
to any necessary authorization from the Bankruptcy Court, each Seller has full
power and authority to execute and deliver the Transaction Documents to which it is a party
and to consummate the transactions contemplated hereby and
thereby. The board of directors (or similar governing body) of each
Seller has duly approved the Transaction Documents to which such Person is a
party and has duly authorized the execution and delivery of such Transaction
Documents and the consummation of the transactions contemplated
thereby. No other corporate or organizational proceedings on the part
of any Seller are necessary to approve and authorize the execution and delivery
of the Transaction Documents to which such Person is a party and the
consummation of the transactions contemplated thereby. All
Transaction Documents to which any Seller is a party have been duly executed and
delivered by such Person, except such Transaction Documents that are required by
the terms hereof to be executed and delivered by such Person after the date
hereof, in which case such Transaction Documents will be duly executed and
delivered by such Person at or prior to the Closing, and, subject to any
necessary authorization from the Bankruptcy Court, all Transaction Documents
constitute, or will constitute, as the case may be, the valid and binding
agreements of Sellers, enforceable against Sellers in accordance with their
terms.
4.2 Organization, Standing and
Power. Each
Seller is a corporation or limited liability company duly organized, validly
existing and in good standing under the laws of the state of its
incorporation, Each Seller is in good standing and is qualified to do
business in every jurisdiction in which it is required to be qualified, except
where the failure to be in good standing or to obtain such qualification would
not reasonably be expected to have a Material Adverse Effect or materially
impede the ability of the Sellers to consummate the transactions contemplated
hereby. Each Seller has full power and authority and all material
licenses, Permits and authorizations necessary to own and operate its properties
and to carry on the Business as now conducted by it. Subject to any
necessary authorization from the Bankruptcy Court, each Seller has all requisite
corporate power and authority to own, lease and operate its properties
(including, without limitation, the Acquired Assets), to carry on the Business
as now being conducted and to execute and deliver this Agreement and all
agreements, instruments and other documents referred to herein, and, subject to
the entry of the Sale Order, to perform its obligations hereunder and
thereunder.
4.3 No Conflicts or
Violations. Except
as set forth on Schedule 4.3 attached
hereto, and to the extent any of the following is not enforceable due to
operation of applicable bankruptcy law or the Sale Order, the execution,
delivery and performance of the Transaction Documents and the consummation of
the transactions contemplated thereby by Sellers do not and shall not:
(a)(i) conflict with or result in any breach of any of the terms,
conditions or provisions of, (ii) constitute a default under,
(iii) result in a violation of, (iv) give any Third Party the right to
modify, terminate or accelerate any obligation under, or (v) require any
authorization, consent, approval, exemption or other action by or notice or
declaration to, or filing with, any court or administrative or other
Governmental Authority under, the provisions of the articles of incorporation,
by-laws or other constitutive documents of any Seller or any material indenture,
mortgage, lease, loan agreement or other material agreement or instrument to
which any Seller is bound or affected, or any law, statute, rule or Regulation
to which any Seller is subject or any Order to which any Seller is subject; or
(b) result in the creation of any Lien upon the Acquired
Assets.
4.4 Financial Statements and
Related Matters. ParentCo
has provided to Purchaser the Baseline Inventory Schedule. The
Baseline Inventory Schedule is accurate and complete in all material respects,
is consistent with the Books and Records (which, in turn, are accurate and
complete), has been prepared in accordance with GAAP, and presents fairly the
Baseline Inventory as of April 7, 2009 valued at cost less applicable
reserves.
4.5 Title to Assets;
Assets
Necessary to Do Business.
(a) Except as
set forth on Schedule 4.5(a) attached
hereto, Sellers have good and marketable title to, or a valid license or
leasehold interest in, the Acquired Assets. Since the commencement of
the Chapter 11 Cases, no Seller has purchased any material amount of assets
except as reflected in the Budgets.
(b) Except as
described on Schedule 4.5(b) attached
hereto, the Acquired Assets are in good operating condition and repair (ordinary
wear and tear excepted) and are fit for use in the Ordinary Course of
Business.
(c) Except as
set forth on Schedule 4.5(c) attached
hereto, Sellers own all buildings, machinery, equipment, and other tangible
assets necessary for the conduct of the Business in the Ordinary Course of
Business. The Acquired Assets constitute all of the assets,
agreements, licenses and properties owned by Sellers (other than the Excluded
Assets) and are all assets, agreements, licenses and properties required for the
conduct of the Business in the Ordinary Course of Business. None of
the Acquired Assets are located outside of the Owned Real Property.
(d) Subject
to Bankruptcy Court approval, Sellers have the power and the right to sell,
assign and transfer and Sellers will sell and deliver to Purchaser, and upon
consummation of the transactions contemplated by this Agreement, Purchaser will
acquire valid title to the Acquired Assets, free and clear of all Liens other
than Permitted Liens.
(e) Subject
to Bankruptcy Court approval, this Agreement and the documents contemplated
hereby, when duly executed and delivered by Sellers to Purchaser at the Closing,
will effectively vest in Purchaser good and marketable title to the Acquired
Assets, subject only to the Assumed Obligations and Permitted
Liens.
4.6 Employee Benefit
Plans.
(a) Schedule 4.6(a) attached
hereto, sets forth a complete and accurate list of each Benefit Plan Sellers
maintain, contribute to or which is maintained by any other Person for the
benefit of any of Sellers' employees or under which Sellers have any Liability
or potential Liability to any employee or former employee or any other
individual ("Employee
Benefit Plan"). Sellers have made available to Purchaser true
and correct copies, if applicable, of each Employee Benefit
Plan. Each Employee Benefit Plan which is intended to be qualified
within the meaning of Section 401 of the Code has received a favorable
determination letter as to its qualification, and nothing has occurred that
would cause the loss of such favorable determination.
(b) No
Employee Benefit Plan is a "multiemployer plan"
(as defined in Section 4001(a)(3) of ERISA) and no Seller nor any ERISA
Affiliate has sponsored or contributed to or has any Liability or potential
Liability to any multiemployer plan. No Employee Benefit Plan is an
"employee benefit
plan" (as such term is defined under Section 3(2) of ERISA) that is
subject to Title IV or Section 302 of ERISA or Section 412 of the
Code.
(c) Except as
set forth on Schedule 4.6(c) attached
hereto, the consummation of the transactions contemplated by this Agreement
(alone or in connection with any subsequent event, including a termination of
employment) will not (i) accelerate the vesting or payment of any economic
benefit provided or made available to any Seller's employees by such Seller,
(ii) increase the amount of any economic benefit provided or made available
to any Seller's employees by such Seller, or (iii) accelerate or increase
the funding obligation of any Seller with respect to any Employee Benefit
Plan.
(d) Sellers
have materially complied with the health care continuation requirements of
Part 6 of Subtitle B of Title I of ERISA ("COBRA"); and no
Seller has any obligations under any Employee Benefit Plan, or otherwise, to
provide health or life insurance benefits to current or former employees of
Sellers or any predecessor or Affiliate of any Seller, or any other Person,
except as specifically required under COBRA. Except for group term
life insurance, Sellers have terminated all of the Employee Benefit Plans that
provide health or welfare coverage (the "Former Plans")
effective April 1, 2009. Sellers' decision to terminate the Former
Plans is in no way related to, or was otherwise done in connection with, the
transactions contemplated by this Agreement.
(e) With
respect to each Employee Benefit Plan, all required or recommended (in
accordance with past practices) payments, premiums, contributions,
distributions, reimbursements or accruals for all periods (or partial periods)
ending prior to or as of the Closing Date shall have been made or properly
accrued.
4.7 Labor
Matters. Except
as set forth in Schedule 4.7 attached
hereto, with respect to this transaction, any notice required under any
Regulation or collective bargaining agreement relating to any of Sellers'
current employees has been given, and all bargaining obligations with any
employee representative have been, or prior to the Closing will be,
satisfied
4.8 Personnel
Matters. Schedule 4.8 attached
hereto, contains an accurate and complete list of the names, job
classifications, dates of hire, wage rates, base compensation, commission rates,
and any supplemental or bonus compensation (including, without limitation, any
retention or stay bonus arrangements and deferred compensation arrangements) for
all persons currently employed by or providing independent contract services to
Sellers associated with the Business.
4.9 Litigation,
Orders. Except
as set forth on Schedule 4.9 attached
hereto, there are no Proceedings or Orders pending or, to the Knowledge of any
Seller, threatened in writing against any Seller or any Acquired Asset at law or
in equity, in the United States or elsewhere, or before or by any arbitrator or
Governmental Authority (including, without limitation, any Proceedings with
respect to the transactions contemplated by this Agreement) in which the damages
sought exceed $100,000 individually or $250,000 in the aggregate. No
Seller or Acquired Asset is subject to any Order of any Governmental Authority
(or settlement enforceable therein).
4.10 Subsidiaries and Affiliates; Ownership
Interests. Except
as set forth on Schedule 4.10, no Seller
owns, of record or beneficially, any direct or indirect ownership interest in
any Person (other than another Seller) or right (contingent or otherwise) to
acquire any direct or indirect ownership interest in any Person (other than
another Seller), nor is any Seller a member of (nor is any portion of the
Business conducted through) any partnership or a participant in any joint
venture or similar arrangement. No Person identified on Schedule 4.10 (other than
another Seller) has any material properties, assets, rights, titles or interests
(of any kind or nature) or business function (i) which is used in or related to
the operation of the Business as currently conducted by Sellers or has been
conducted by Sellers within the last two (2) years.
4.11 Real Property
Assets.
(a) Schedule 4.11(a) attached
hereto sets forth a list of all Owned Real Property. With respect to
each Acquired Owned Real Property: (i) the applicable Seller has valid
indefeasible fee simple title free and clear of all encumbrances (except
Permitted Liens and Liens that will be removed and stricken as against the
Acquired Assets pursuant to the Sale Order); (ii) except for Permitted
Liens and as set forth on Schedule 4.11(a), there
are no leases, subleases, licenses, concessions, or other agreements, written or
oral, granting to any Person the right of use or occupancy of any portion of
such Acquired Owned Real Property; (iii) there are no outstanding options
or rights of first refusal to purchase such Acquired Owned Real Property (other
than the right of Purchaser pursuant to this Agreement), or any portion thereof
or interest therein; and (iv) Sellers are not a party to any agreement or
option to purchase any real property or interest therein.
(b) All
material permanent certificates of occupancy and all other material Permits
required by all Governmental Authorities having jurisdiction over the Acquired
Owned Real Property have been paid for, are in full force and
effect.
(c) To the
Knowledge of Sellers, Sellers have not received, during the two (2) year period
prior to the date of this Agreement, any written notice alleging that the
operation and use of the buildings and other improvements constituting the
Acquired Owned Real Property violates, in any material
respect, any
zoning, subdivision, building or similar law, ordinance, Order, Regulation or
recorded plat or any certificate of occupancy issued with respect to the
Acquired Owned Real Property.
(d) To the
Knowledge of Sellers, there are no defects in the buildings, improvements and
structures and fixtures located on or at the Acquired Owned Real Property which
would materially impair the conduct of the Business by Purchaser immediately
following the Closing. To the Knowledge of Sellers, the mechanical,
electrical, plumbing, HVAC and other systems servicing the Acquired Owned Real
Property are in good working order and repair, ordinary wear and tear excepted,
and there are no defects in such systems which could reasonably be expected to
materially impair the conduct of the Business by Purchaser immediately following
the Closing.
(a) Each
Seller has filed all Tax Returns that it was required to file. All
such Tax Returns were correct and complete in all material
respects. All Taxes owed by any Seller (whether or not shown on any
Tax Return) have been paid. No Seller is the beneficiary of any
extension of time within which to file any Tax Return. With respect
to each Seller, no claim has ever been made by a Governmental Authority in a
jurisdiction where such Seller does not file Tax Returns that such Seller is or
may be subject to taxation by that jurisdiction.
(b) Each
Seller has withheld and paid all Taxes required to have been withheld and paid
in connection with amounts paid or owing to any employee, independent
contractor, creditor, stockholder, or other Third Party, and all Forms W-2 and
1099 (or any other applicable form) required with respect thereto have been
properly completed and timely filed.
(c) Except as
set forth on Schedule 4.12(c), (i)
there is no material dispute or claim concerning any Tax Liability of any Seller
claimed or raised by any Governmental Authority in writing, and (ii) there are
no pending or threatened Tax assessments, examinations, investigations or other
tax related notices from any Governmental Authority that are specifically
related to, or that could reasonably be expected to adversely affect, the
Business or the Acquired Assets.
(d) Schedule 4.12 attached
hereto lists all federal, state, local, and foreign Tax Returns filed with
respect to any Seller for taxable periods currently open to audit by a Tax
authority, indicates those Tax Returns that have been audited during the past
three (3) years, and indicates those Tax Returns that currently are the subject
of audit. There are no issues related to any pending Tax audit that
could reasonably be expected to adversely affect the conveyance of the Acquired
Assets or any portion thereof in accordance with this
Agreement. Sellers have made available and will continue to make
available to Purchaser correct and complete copies of all Tax Returns,
examination reports, and statements of deficiencies assessed against or agreed
to by any Seller during the past three (3) years.
4.13 Compliance with
Law. To
the Knowledge of Sellers, each Seller has, in all material respects, complied
with and is in compliance, in all material respects, with, and is not in default
in any material respect with, all applicable Regulations of any Governmental
Authority applicable to the operation of the Business and no claims have been
filed against any Seller alleging a material violation of any such Regulations,
and no Seller has received written notice of any such violations.
4.14 Cure
Amounts. Schedule 4.14 attached
hereto sets forth all of the costs of cure to be satisfied in order for Sellers
to assume and assign each Assumed Executory Contract under Section 365 of the
Bankruptcy Code.
4.15 Environmental Matters.
(a) Except as
set forth on Schedule 4.15(a) attached
hereto, Sellers have all Permits required under Environmental Laws for them to
conduct the Business in the Ordinary Course of Business and to own and operate
the Acquired Assets and Facilities in the Ordinary Course of Business
(collectively, the "Environmental
Permits"). All Environmental Permits are in full force and
effect, and no suspension or cancellation of any Environmental Permits is
pending or to the Knowledge of Sellers threatened. Except as set
forth on Schedule 4.15(a) attached
hereto, Sellers, the Business, and the Acquired Assets are in compliance in all
material respects with all Environmental Permits and all Environmental
Laws.
(b) Except as
set forth on Schedule 4.15(b), to the
Knowledge of Sellers, no Seller is currently required to
undertake any corrective or remedial obligation under any
Environmental Law with respect to the Business, the Acquired Assets or any of
the Facilities.
(c) Except as
set forth on Schedule 4.15(c), attached
hereto, no Seller nor any predecessor or Affiliate of any Seller has received
any written Notice regarding any unresolved actual or alleged violation of
Environmental Laws, or any current material Liabilities or potential material
Liabilities, including any investigatory, remedial or corrective obligations,
relating to any of them, the Acquired Assets, the Business or the Facilities
arising under Environmental Laws.
(d) Except as
set forth on Schedule
4.15(d) attached
hereto, neither the Business nor any Seller nor any predecessor or Affiliate of
any Seller has (i) treated, stored, disposed of, arranged for or permitted the
disposal of, transported, handled, exposed any person to any Hazardous Substance
that has resulted in a Claim against any Seller, the Business or the Acquired
Assets or (ii) Released any Hazardous Substance, or owned or operated any
property or facility that has been or is contaminated by any Hazardous
Substance, in each case as has given rise to any material Liability for response
costs, corrective action costs, personal injury, property damage, natural
resources damages or attorney fees, or any investigatory, corrective or remedial
obligations, pursuant to CERCLA or any other Environmental Laws.
(e) Sellers
have provided to Purchaser all Phase I and Phase II environmental reports and
any other material documents relating to any environmental, health or safety
matters, relating to the Acquired Assets or the Facilities, including with
respect to any former operations and facilities of the Business.
(f) Except as
otherwise disclosed on Schedule4.15(f), to the
Knowledge of Sellers, none of the following exists at any of the Facilities:
(1) leaking underground storage tanks, (2) asbestos-containing
material which in its present condition requires abatement under Environmental
Laws, (3) materials or equipment containing polychlorinated biphenyls, or
(4) landfills, surface impoundments, or disposal areas.
(g) The
representations contained in this Section 4.15 shall be the
only representations covering environmental matters, including matters relating
to Environmental Laws and Hazardous Substances.
4.16 Inventory. The
Inventory (i) consists solely of materials and goods of a quality useable
or saleable in the Ordinary Course of Business, (ii) is not defective,
obsolete or damaged, (iii) is fit and merchantable for their particular
use, and (iv) is valued at cost less applicable reserves all in accordance
with GAAP and the basis described in the Baseline Inventory
Schedule (consistently applied with past practice). None of
the Inventory is subject to any consignment, bailment, warehousing or similar
agreement, except as set forth on Schedule 4.16 attached
hereto.
4.17 Absence of Undisclosed
Liabilities. No
Seller has any obligations or Liabilities arising out of transactions entered
into at or prior to the Closing, or any action or inaction at or prior to the
Closing, or any state of facts existing at or prior to the Closing, except
(i) obligations under contracts or commitments described on Schedule 4.21(a) attached
hereto or under contracts and commitments which are not required to be disclosed
thereon (but not Liabilities for breaches thereof), (ii) Liabilities
reflected on the Liabilities side of the Sellers' Last Quarterly Report, and
(iii) Liabilities which have arisen after the date of the Sellers' Last
Quarterly Report which would not have a Material Adverse Effect.
4.18 Affiliated
Transactions. Except
as disclosed on Schedule 4.18 attached
hereto, no Insider has any interest in the Acquired Assets or is a party to any
Contract used in or related to the Business.
4.19 Intellectual
Property.
(a) Schedule 4.19 attached
hereto sets forth a complete and correct list of all of the following that are
owned by any Seller and used in or related to the Business in the Ordinary
Course of Business:
(i) patented
or registered Intellectual Property and pending patent applications or other
applications for registrations of Intellectual Property; and
(ii) material
unregistered trademarks, unregistered service marks, trade names, corporate
names, and Internet domain names.
(b) Each
Seller owns and possesses all right, title and interest in and to all of the
Intellectual Property set forth on Schedule 4.19 attached
hereto and owns and possesses all, right, title and interest in and to, or has a
valid and enforceable license to use all other Intellectual Property included in
the Acquired Assets and all other Intellectual Property used in or related to
the operation of the Business in the Ordinary Course of Business (collectively,
the "Company
Intellectual Property"). Schedule 4.21(a) attached
hereto sets forth a list of license agreements pursuant to which the Company
licensed from any Third Party any Intellectual Property (other than unmodified
off-the-shelf software) used in the operation of the Business in the Ordinary
Course of Business. The Company Intellectual Property is not subject
to any Liens (other than Liens that will removed and stricken as against the
Acquired Assets pursuant to the Sale Order), and is not subject to any material
restrictions or limitations regarding use or disclosure other than pursuant to a
written license agreement. Schedule 4.21(a) attached
hereto attached hereto sets forth a list of license agreements pursuant to which
the Company licensed any Company Intellectual Property to any Third
Party.
(c) To the
Knowledge of Sellers, no Seller has infringed, misappropriated, diluted or
otherwise conflicted with, and the operation of the Business in the Ordinary
Course of Business and, prior to the Closing, does not and will not infringe,
misappropriate, dilute or otherwise conflict with, any Intellectual Property of
any Third Party. To the Knowledge of Sellers, there are no facts that
indicate a likelihood of any of the foregoing and no Seller has received any
notice or other communication regarding any of the foregoing (including any
demands or offers to license any Intellectual Property from any Third
Party).
(d) Each
Seller has taken all necessary and desirable action to maintain and protect all
of the material Company Intellectual Property and will continue to maintain and
protect all of the material Company Intellectual Property prior to the Closing
so as not to materially adversely affect the validity or enforceability
thereof.
(e) To the
Knowledge of Sellers, no Third Party has infringed, misappropriated, diluted or
otherwise conflicted with any of the Company Intellectual Property and, to the
Knowledge of Sellers, there are no facts that indicate a likelihood of any of
the foregoing.
(f) Immediately
subsequent to the Closing, the Company Intellectual Property will be owned by or
available for use by Purchaser on terms and conditions identical to those under
which Sellers owned or used the Company Intellectual Property immediately prior
to the Closing.
(g) Except as
set forth on Schedule 4.19(g), to the
Knowledge of Sellers, all of the Company Intellectual Property is valid and
enforceable and none of the Company Intellectual Property has been
misused. No claim by any Third Party contesting the validity,
enforceability, use or ownership of any of the Company Intellectual Property has
been made, is currently outstanding or, to the Knowledge of Sellers, is
threatened, and, to the Knowledge of Sellers, there are no grounds for the
same.
4.20 Insurance. Schedule 4.20 attached
hereto lists all policies of insurance currently in effect owned, held, or
maintained by or for the benefit of Sellers or insuring the Acquired Assets,
including the type and amount of coverage and the expiration dates of the
policies. Except as set forth on Schedule 4.20 attached
hereto, current premiums and any other obligations under such insurance
have been paid and all such policies are valid and enforceable and in full force
and effect on the date hereof and no Seller is in default with respect to its
obligations under any such insurance policies.
(a) Except as
set forth on Schedule 4.21(a) attached
hereto, no Seller is a party to or bound by, whether written or oral,
any:
(i) collective
bargaining agreement or other contract with any union or labor
organization;
(ii) any
employment agreement with any officer or management-level employee or any
severance agreements;
(iii) agreement
or indenture relating to the borrowing of money or to mortgaging, pledging or
otherwise placing a Lien on any of the Acquired Assets;
(iv) agreement
relating to the licensing of Intellectual Property by any Seller to a Third
Party or by a Third Party to any Seller (other than unmodified off-the-shelf
software), and all other agreements affecting Sellers' ability to use or
disclose any Intellectual Property;
(v) management,
consulting, advertising, marketing, promotion, technical services, advisory or
other contract or other similar arrangement relating to the design, marketing,
promotion, management or operation of the Business involving more than $100,000
annually;
(vi) lease or
agreement under which it is lessee of, or holds or operates, any personal
property owned by any other party calling for payments in excess of $100,000
annually, used in or related to the Business.
(vii) lease or
agreement under which it is lessor of or permits any Third Party to hold or
operate any property, real or personal, owned or controlled by it involving more
than $100,000 annually, used in or related to the Business;
(viii) contract
or group of related contracts with the same party continuing over a period of
more than six (6) months from the date or dates thereof, not terminable by it on
ninety (90) days or less notice without penalties or involving more than
$50,000 annually;
(ix) contract
which prohibits it from freely engaging in business anywhere in the world;
or
(x) other
agreement used in or related to the Business, which is material to it whether or
not entered into in the Ordinary Course of Business.
(b) Except as
disclosed on Schedule 4.21(b) attached
hereto, (i) no Assumed Material Contract has been breached or canceled by
the other party, and there is no anticipated breach by any other party to any
contract set forth on Schedule 4.21(a),
(ii) except for defaults that will be cured through the Cure Payments
listed on Schedule 4.14 attached
hereto or arising as a consequence of the commencement of the Chapter 11
Cases, neither any Seller nor any other party thereto is in default or breach in
any material respect under the terms of any Assumed Material Contract and, to
the Knowledge of Sellers, no event or circumstance has occurred that, with
notice or lapse of time or both, would constitute a default or breach
thereunder, (iii) no Seller has assigned, delegated or otherwise
transferred to any Person any of its rights, title or interest under any Assumed
Material Contract, and (iv) each Assumed Material Contract is legal, valid,
binding, enforceable and in full force and effect and, subject to the terms of
this Agreement and Bankruptcy Court approval, will continue as such following
the consummation of the transactions contemplated hereby.
(c) Sellers
have provided Purchaser with a true and correct copy of all written contracts
which are required to be disclosed on Schedule 4.21(a) attached
hereto (each a "Material Contract"),
in each case together with all amendments, waivers or other changes thereto (all
of which are disclosed on Schedule 4.21(a)). Schedule 4.21(a) contains
an accurate and complete description of all material terms of all oral contracts
referred to therein.
(d) For
purposes of this Agreement, "Assumed Material Contracts" shall mean the Assumed
Executory Contracts that are Material Contracts.
(e) Except as
disclosed on Schedule 4.21(e), there
are no Contracts that apply to both the Business and other businesses of
Sellers.
4.22 Relationships with Customers
and Suppliers. Sellers
have provided Purchaser with a true and accurate list of (i) the names and
addresses of all direct customers (whether dealers or others) of Sellers (on a
consolidated basis) (by dollar volume of sales to such customers) and
(ii) a list of the names and addresses of the top twenty-five (25)
suppliers of Sellers (on a consolidated basis) (by dollar volume of purchases
from such suppliers), for the fiscal years ended December 31, 2007 and 2008 and the three-month
period ended March 31, 2009.
4.23 Product Liability; Product
Warranties. Except
as set forth on Schedule 4.23 hereto, (i)
the products sold or manufactured by or for Sellers relating to the Business and
the services provided by the Business, have complied with and are in compliance
with, in all material respects, all applicable (A) Regulations,
(B) industry and self-regulatory organization standards, and (C)
contractual commitments and all express or implied warranties; and (ii) there
are not, and there have not been, any material defects or deficiencies in any
such products or services that would reasonably be expected to result in a claim
or claims against the Business or any Seller for Product
Liabilities. Schedule 4.23 sets forth
(i) a list of all material claims for Product Liabilities pending, or to the
Knowledge of any Seller, threatened in writing, against the Business or any
Seller related to the Business, (ii) a list of all material claims for Product
Liabilities asserted against the Business or any Seller related to the Business
in the past twelve months, and (iii) a list of material Liabilities which have
been incurred by Sellers for Product Liabilities related to the Business in the
past five (5) years. Schedule 4.23 sets forth
copies of the standard written warranties of the Business with respect to its
products and services. No products heretofore sold by any Seller in
connection with the Business are now subject to any guarantee or warranty other
than such Seller's standard terms and conditions of sale.
(a) Set forth
on Schedule 4.24(a) is a
complete and accurate list of all Monaco Dealers, including each such Monaco
Dealer's legal name and address.
(b) Except as
set forth on Schedule 4.24(b), and
other than as the result of the commencement of the Chapter 11 Cases (i) no
Seller is in material breach of or default under any term of any Contract with
any Monaco Dealer, or has repudiated any term thereof and no event has occurred
which with the passage of time or the giving of notice or both would result in a
default or breach thereunder, (ii) each applicable Seller has performed in all
material respects the obligations required to be performed by it in connection
with all Contracts with Monaco Dealers, (iii) no Seller has received any written
notice of termination, cancellation or non-renewal with respect to any Contracts
with a Monaco Dealer and (iv) to the Knowledge of Seller, no Monaco Dealer has
delivered any written notice indicating its intention to materially modify or
terminate its relationship with any Seller.
(c) Except as
set forth on Schedule 4.24(c), there
are no, and during the last three (3) years there have not been any, Proceedings
pending or, to the Knowledge of Sellers, threatened in writing by any Monaco
Dealer against any Seller in connection with or related to the Business.
(d) Set forth
on Schedule 4.24(d) is a list
of the ten (10) largest Monaco Dealers by volume for the most recent fiscal year
and set forth opposite the name of each such Monaco Dealer, the percentage of
net sales attributable to such Monaco Dealer.
(e) Set forth
on Schedule 4.24(e) is a list
of each Monaco Dealer which is an Affiliate of any Seller.
4.25 Accounts Payable and Other
Accrued Expenses. Set
forth on Schedule 4.25 attached
hereto is an unaudited list of all accounts payable and other accrued expenses
of Sellers as of the date hereof together with the name of each payee, the
relationship (if any) to Sellers, the date each such payment is due and the
nature of the transaction in which it was incurred if other than a trade payable
incurred in the Ordinary Course of Business.
4.26 Brokers. Except
as set forth on Schedule 4.26 attached
hereto, no Seller has incurred any Liability to any broker, finder or agent with
respect to the payment of any commission regarding the consummation of the
transactions contemplated hereby.
4.27 Absence of Certain
Developments. Except
as set forth on Schedule 4.27 attached
hereto and except as expressly contemplated by this Agreement, since January 1,
2009, no Seller has:
(a) suffered
any theft, damage, destruction or casualty loss in excess of $100,000 to any
Acquired Assets, whether or not covered by insurance or suffered any material
damage or destruction to its Books and Records;
(b) incurred
or become subject to any Liabilities, except Liabilities incurred in the
Ordinary Course of Business, bankruptcy costs and expenses relating to this
Agreement and the transactions contemplated hereby;
(c) except
for Liens held by Ableco Finance LLC and bank of America, N.A., subjected any
portion of its properties or assets to any Lien (other than Permitted
Liens);
(d) sold,
leased, assigned or transferred (including, without limitation, transfers to
stockholders, holders of ownership interests or any Insider) a portion of its
tangible assets, except for sales of Inventory, which, prior to the commencement
of the Chapter 11 Cases, were conducted in the Ordinary Course of Business, or
canceled without fair consideration any material debts or claims owing to or
held by it;
(e) sold,
assigned, licensed or transferred (including transfers to stockholders or any
Insider) any Company Intellectual Property owned by, issued to or licensed to it
or disclosed any material confidential information (other than pursuant to
agreements requiring the disclosure to maintain the confidentiality of and
preserving all its rights in such confidential information);
(f) entered
into, amended or terminated any material lease, contract, agreement or
commitment, other than in the Ordinary Course of Business;
(g) made any
capital expenditures or commitments for capital expenditures that aggregate in
excess of $100,000;
(h) committed
to do any of the foregoing.
4.28 Officers and
Directors. Schedule 4.28 attached
hereto lists all officers, directors and equivalent senior executives and
members of governing bodies of Sellers.
4.29 Bankruptcy. Each
Seller has filed a petition for relief under Chapter 11 of the Bankruptcy
Code in the Bankruptcy Court and is a party to the Chapter 11
Cases.
4.30 Closing
Date. All
of the representations and warranties contained in this Article IV and
elsewhere in this Agreement and all information in the Disclosure Schedules
hereto are true and correct on the date of this Agreement and shall be true and
correct on the Closing Date as though then made and as though the Closing Date
was substituted for the date of this Agreement throughout such representations
and warranties.
4.31 Credit
Support. Schedule 4.31 sets forth
any letters of credit, guaranties, surety bonds or other credit support that
Sellers have in effect with any existing customer, supplier, vendor or other
business relationships. ParentCo has not received written notice from
any customer, supplier or vendor of any request for any of the
foregoing.
4.32 Non-Seller
Subsidiaries. No
Affiliate of any Seller (other than an Affiliate which is a Seller) owns any
property, assets, rights, titles or interests of any kind and nature that are
part of the Acquired Assets.
REPRESENTATIONS
AND WARRANTIES OF PURCHASER
Purchaser
represents and warrants to Sellers as follows:
5.1 Organization. Each
of Purchaser and Guarantor is a corporation validly existing and in good
standing under the laws of the State of Delaware and has the full power and
authority to execute, deliver and perform this Agreement and to consummate all
transactions contemplated hereby.
5.2 Authority. The
execution, delivery and performance by each of Purchaser and Guarantor of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary action on the part of each of Purchaser and
Guarantor and do not and will not violate any provisions of their respective
organizational documents, any applicable Regulation or any contract or Order
binding upon either of them. This Agreement constitutes a valid and
binding agreement of each of Purchaser and Guarantor, enforceable against each
of Purchaser and Guarantor in accordance with its terms, subject to applicable
bankruptcy, reorganization, insolvency, moratorium and other laws affecting
creditors' rights generally from time to time in effect, and to general
equitable principles.
5.3 Consents. No
notice to, filing with, authorization of, exemption by, or consent (other than
the approval of the Bankruptcy Court, approval of the Board of Directors of
Navistar ParentCo) of any Person or Governmental Authority is required in order
for Purchaser and Guarantor to consummate the transactions contemplated
hereby.
5.4 Brokers. Except
as set forth on Schedule 5.4 attached
hereto, neither Purchaser nor Guarantor have incurred any Liability to any
broker, finder or agent with respect to the payment of any commission regarding
the consummation of the transactions contemplated hereby.
5.5 Funds. Guarantor
has sufficient unrestricted funds on the date hereof, and, on the Closing Date,
Guarantor will have sufficient unrestricted funds, to make the payments required
pursuant to this Agreement and to pay the Assumed Obligations with respect to
the transactions contemplated by this Agreement.
COVENANTS
OF SELLERS; OTHER AGREEMENTS
6.1 Consents and
Approvals.
(a) Sellers
shall use commercially reasonable efforts (i) to obtain all necessary
consents and approvals, as reasonably requested by Purchaser, to consummate the
purchase and sale of the Acquired Assets and the assignment of the Assumed
Obligations, together with any other necessary consents and approvals
(including, without limitation, all Environmental Permits) to consummate the
transactions contemplated hereby, including, without limitation, obtaining the
Bidding Procedures Order and Sale Order, (ii) to make, as reasonably
requested by Purchaser, all filings, applications, statements and reports to all
authorities that are required to be made prior to the Closing Date by or on
behalf of Sellers or any of their Affiliates pursuant to any applicable
Regulation (including, without limitation, the Indiana Responsible Property
Transfer Law) in connection with this Agreement and the transactions
contemplated hereby and (iii) to obtain, as requested by Purchaser, all
required consents and approvals (if any), file any notices or request, or
execute such other documentation that may be reasonable or necessary to assign,
transfer or reissue Sellers' Permits (including, without limitation, all
Environmental Permits) to Purchaser at Closing and to the extent that one or
more Sellers' Permits (including, without limitation, all Environmental Permits)
are not transferable, to assist Purchaser in obtaining replacements
therefor. In the event that certain of Sellers' Permits, or any
Contract or other license or agreement necessary for the operation of the
Business, are not transferable or replacements therefor are not obtainable on or
before the Closing, but such Permits, Contracts or other licenses or agreements
are obtainable after the Closing, then Sellers shall continue to use such
commercially reasonable efforts in cooperation with Purchaser after the Closing
as may be required to obtain all required consents and approvals to transfer, or
obtain replacements for, such Permits, Contracts or other licenses or agreements
after Closing and shall use commercially reasonable efforts to do all things
necessary to give Purchaser the benefits that would be obtained under such
Permits, Contracts or other licenses or agreements.
(b) Each of
the parties shall give any other notices to, make any other filings with, and
use reasonable best efforts to obtain, any other authorizations, consents and
approvals of any Governmental Authority in connection with the matters
contemplated by this Agreement.
6.2 Access to Information and
Facilities.
(a) Sellers
agree that, prior to the Closing Date, Purchaser, Purchaser's lender, and their
respective representatives shall, upon reasonable notice and so long as such
access does not unreasonably interfere with the business operations of any
Seller, have reasonable access during normal business hours to all Facilities
used in or related to the Business and shall be entitled to make such reasonable
investigation of the properties, businesses and operations of Sellers (including
without limitation any environmental audits and investigations or to conduct a
physical inventory of the Inventory) and such examination of the Books and
Records and financial condition of Sellers as it reasonably requests and to make
extracts and copies to the extent necessary of the Books and Records; provided that no
investigation pursuant to this Section 6.2 shall affect
any representations or warranties made herein or the conditions to the
obligations of the respective parties to consummate the transactions
contemplated by this Agreement.
(b) Sellers
shall deliver to Purchaser copies of any financial and/or operating reports or
other financial information which Sellers are required to deliver to the U.S.
Trustee for the Chapter 11 Cases, to Sellers' senior lenders and/or to the
Official Committee of Unsecured Creditors under the Chapter 11 Cases within one
(1) day after delivery of such reports and/or financial statements to such
Persons.
(c) Sellers
agree to provide to Purchaser such additional diligence information as Purchaser
may reasonably request, including, without limitation, (i) making available to
Purchaser during normal business hours Sellers' employees, representatives,
attorneys and other agents to answer questions, (ii) making available to
Purchaser correct and complete copies of all Tax Returns, examination reports,
and statements of deficiencies assessed against or agreed to by any Seller
during the past three (3) years, and (iii) providing a list of all policies of
insurance in effect during the past five (5) years owned, held, or maintained by
or for the benefit of Sellers or insuring the Acquired Assets, including the
type and amount of coverage and the expiration dates of the
policies.
6.3 Conduct of the Business
Pending the Closing. Except
as otherwise expressly contemplated by this Agreement or with the prior written
consent of Purchaser or except as described on Schedule 6.3 attached
hereto, from the date hereof until the Closing Date, Sellers shall use
commercially reasonable efforts to preserve intact the Acquired
Assets. Without limiting the generality of the foregoing except as
otherwise expressly contemplated by this Agreement or with the prior written
consent of Purchaser or except as described on Schedule 6.3 attached
hereto, from the date hereof until the Closing Date, each Seller
shall:
(a) not sell,
assign, transfer, convey, pledge, mortgage, lease, license or otherwise dispose
of or encumber any of the Acquired Assets or any interests therein (other than
up to $7,000,000 in book value of RV Finished Goods Inventory);
(b) not
process or convert or take any action toward processing or converting any RV Raw
Inventory, RV WIP Inventory or Chassis Inventory into RV Finished Goods
Inventory;
(c) not make
any material change in its methods of management or accounting as in effect on
the date of this Agreement;
(d) report
periodically to Purchaser, as Purchaser may reasonably request, concerning the
status of the Business, the Acquired Assets and its operations and
finances;
(e) maintain
the Acquired Assets in good operating condition and repair, subject to ordinary
wear and tear;
(f) maintaining
security at any Facilities where Acquired Assets are located reasonably
sufficient to protect the Acquired Assets from material theft, loss or
destruction;
(g) continue
all existing policies of insurance (or comparable insurance) of or for the
benefit of Sellers and/or the Business in full force and effect and at least at
such levels as are in effect on the date hereof, up to and including the Closing
(and not cancel any such insurance or take, or fail to take, any action that
would enable the insurers under such policies to avoid Liability for claims
arising out of occurrences prior to the Closing);
(h) with
respect to the Acquired Assets, not enter into any transaction or make or enter
into any contract or commitment or amend or terminate any material agreement or
commitment which is not in the Ordinary Course of Business, consistent with past
practice (other than sales of RV Finished Goods Inventory in an amount not to
exceed $7,000,000 in book alue of such RV Finished Goods
Inventory);
(i) not,
without the Bankruptcy Court approval and Purchaser's approval, voluntarily
terminate or reject (whether pursuant to Section 365 of the Bankruptcy Code
or otherwise) any Assumed Executory Contract relating to the
Business;
(j) maintain
the Books and Records in the usual, regular and ordinary manner and not destroy,
alter or otherwise compromise the integrity of such Books and
Records;
(k) not
implement any employee layoffs or terminations with respect to the
Business;
(l) maintain
compliance with all laws, rules and Regulations of all Governmental Authorities
that relate to Sellers, the Business or the Acquired Assets (other than the
reporting requirements of the Securities and Exchange Commission);
(m) apply or
continue prosecution of applications already submitted for any Environmental
Permits for the continued operation of the Business (as it is currently being
operated) up to and after Closing;
(n) not sell,
transfer, license or otherwise dispose of, or agree to sell, transfer, license
or otherwise dispose of, or permit to lapse any of the Company Intellectual
Property that is an Acquired Asset;
(o) not
terminate, discontinue, close or dispose of any Owned Real Property, facility,
Leased Facility or business operation of Sellers and/or the Business (other than
Excluded Assets); or
(p) operate
the Business in accordance the terms of the Budgets.
6.4 Notification of Certain
Matters; Schedules.
(a) Sellers
shall give notice to Purchaser of (i) the occurrence or nonoccurrence of
any event that would be likely to cause either (A) any representation or
warranty of Sellers contained in this Agreement to be untrue or inaccurate in
any material respect at any time from the date hereof to the Closing or
(B) directly or indirectly, any Material Adverse Effect on any of Sellers,
the Acquired Assets and/or the Business, or (ii) any material failure of
Sellers to comply with or satisfy any covenant, condition or agreement to be
complied with or satisfied by them hereunder, or (iii) the receipt of any
Acquisition Proposal and shall deliver all written Acquisition Proposals to
Purchaser as soon as practicable upon receipt
thereof. Notwithstanding the foregoing, the delivery of any notice
pursuant to this Section 6.4(a) shall not
(x) be deemed to amend or supplement any of the Disclosure Schedules
contemplated hereby, (y) be deemed to cure any breach of any
representation, warranty covenant or agreement or to satisfy any condition or
(z) limit or otherwise affect the remedies available hereunder to the party
receiving such notice.
(b) Sellers
shall add Purchaser, and Purchaser's counsel, to Sellers' so-called
"Rule 2002 notice list" and otherwise provide notice to Purchaser of all
matters that are required to be served on Sellers' creditors pursuant to the
Bankruptcy Code and Rules.
(c) Purchaser
and Sellers acknowledge that certain of the representations and warranties of
Sellers affirmatively require that Sellers list certain factual information on
the Disclosure Schedules. Sellers shall be permitted to update the
Disclosure Schedules on or prior to the Closing Date but only with respect to
events or circumstances arising between the date hereof and the Closing
Date. No additional disclosure or update by Sellers pursuant to this
Section 6.4(c), however,
shall be deemed to amend or supplement the Disclosure Schedules or to prevent or
cure any misrepresentation, breach of warranty, breach of covenant, or right of
Purchaser to terminate this Agreement.
6.5 Efforts; Further
Assurances.
(a) Sellers
will use reasonable best efforts to obtain the entry of the Bidding Procedures
Order on the Bankruptcy Court's docket as soon as practicable and no later than
the twenty-first (21st) day after the date hereof and the entry of the Sale
Order on the Bankruptcy Court's docket as soon as practicable and no later than
the forty-fifth (45th) day after the date hereof and one business day after the
date of the Sale Hearing and will use their reasonable best efforts to timely
obtain any other consent required for the consummation of the transactions
contemplated by this Agreement as soon as practicable.
(b) Sellers
shall execute such documents and use their reasonable best efforts to take or
cause to be taken all action and do or cause to be done all things necessary,
proper or advisable to consummate the transactions contemplated by this
Agreement (including, without limitation, to put Purchaser in actual possession
and operating control of the Acquired Assets, to effectuate, record or perfect
the transfer of the Acquired Assets to Purchaser, to confirm the title of the
Acquired Assets in Purchaser, to assist Purchaser to in exercising rights
relating thereto, to obtain all consents, approvals and authorizations of Third
Parties, to make all filings with and give all notices to Third Parties which
may be necessary or required in order to effectuate the transactions
contemplated hereby, and to obtain landlords' estoppels and landlords' lenders'
waivers). Sellers shall use commercially reasonable efforts to
fulfill or obtain the fulfillment of the conditions set forth in Article VIII of
this Agreement.
(a) As soon
as practicable after the execution of this Agreement (and in no event later than
five (5) business day(s) thereafter), Sellers shall (i) file and serve a
motion (together with supporting papers and with proper notice thereof on
interested parties as required by the Bankruptcy Code and Rules) seeking entry
of the Bidding Procedures Order on the Bankruptcy Court's docket, which order
will set a date for the Auction as soon as practicable but in any event, no
later than forty-five (45) days after the date hereof and (ii) setting a hearing
with respect to the matters set forth in such motion on shortened notice and no
later than three (3) business day after the date of the Auction or as soon
thereafter as the bankruptcy Court's schedule permits.
(b) The motion requesting approval of the Bidding Procedures
Order identified above or a companion motion will also ask the Bankruptcy Court
to approve the transactions contemplated hereby and in the other Transaction
Documents (the "Sale Motion"), which
motion shall seek the Bankruptcy Court's approval of this Agreement, Sellers'
performance under this Agreement and the assumption and the assignment of the
Assumed Executory Contracts without adequate assurance of future performance
liability pursuant to Section 365(f)(2) of the Bankruptcy Code, except
Purchaser's promise to perform following the Closing obligations under the
Assumed Executory Contracts. Contemporaneously with the filing of the
Sale Motion, Sellers shall provide appropriate notice of the hearing on the
Sale Motion as is required by the Bankruptcy Code and Rules to all parties
entitled to notice including, but not limited to, all parties to the Assumed
Executory Contracts.
(c) The Sale
Motion shall include a request for an order authorizing the assumption and
assignment pursuant to Section 365 of the Bankruptcy Code of the Assumed
Executory Contracts (the "Assignment
Motion"). The Assumed Executory Contracts (as set forth on
Schedule 2.1(a)(iv)
attached hereto) shall be identified (by the date of the Assumed Executory
Contract (if available), the other party to the contract or lease and the
address of such party) on an exhibit to the Assignment Motion. Such
exhibit shall be filed with the Sale motion or supplemented thereto at least
fifteen (15) days prior to the Sale Hearing and shall set forth the amounts
necessary to cure defaults under each of such Assumed Executory Contracts as
determined by Sellers based on the Books and Records. Sellers shall,
at the written direction of Purchaser delivered at any time on or prior to the
fifteenth (15th) day prior to the Sale Hearing, add any Contracts to the exhibit
or (ii) any time prior to the Sale Hearing, remove Assumed Executory
Contracts from the exhibit. In cases in which Sellers are unable to
establish that a default exists, the relevant cure amount shall be set at
$0.00. The Assignment Motion shall reflect that Purchaser's promise
to perform from and after the Closing under the Assumed Executory Contracts
shall be the only adequate assurance of future performance necessary to satisfy
the requirements of Section 365(f)(2)(B) of the Bankruptcy Code in respect of
the assignment to Purchaser of such Assumed Executory Contracts.
(d) Sellers
shall provide Purchaser with a reasonable opportunity to review and comment upon
all motions, applications and supporting papers prepared by Sellers (including
forms of orders and notices to interested parties) that relate to the purchase
and sale of the Acquired Assets contemplated by this Agreement prior to the
filing thereof in the Chapter 11 Cases. All motions,
applications, petitions, schedules and supporting papers prepared by Sellers and
relating in Purchaser's good faith determination to the purchase and sale of the
Acquired Assets contemplated by this Agreement to be filed on behalf of Sellers
after the date hereof must be reasonably acceptable in form and substance to
Purchaser.
(e) After the
entry of the Bidding Procedures Order and not less than eleven (11) days prior
to the Sale Hearing, Sellers shall serve notice on all parties (including,
without limitation, all Monaco Dealers and known purchasers of Sellers' products
during the four (4) years prior to the commencement of the Chapter 11 Cases, all
parties to the Assumed Executory Contracts and all Persons who would appear as
potentially holding a lien on any search conducted to determine those Persons
asserting a lien on Sellers' assets, and all environmental authorities in
jurisdictions applicable to Sellers and all other Persons with current or
potential claims with respect to any Excluded Environmental Liabilities or other
Liabilities or obligations arising under Environmental Laws) to whom service of
the Sale Notice (as defined in the Bidding Procedures Order) is required under
the terms of the Bidding Procedures Order or to whom service of notice is
advisable pursuant to the Bankruptcy Code, in form and substance reasonably
satisfactory to Purchaser (including, if applicable, by publication at a cost of
no more than $15,000 unless Purchaser agrees to pay fifty percent (50%) of any
excess costs thereof), disclosing the salient terms of this Agreement, the
Bidding Procedures Order, the Breakup Fee, the Expense Reimbursement, and the
identity of Purchaser, and the transactions contemplated hereby.
6.7 Exclusivity; No Solicitation
of Transactions. Sellers
jointly and severally represent that, other than the transactions contemplated
by this Agreement, no Seller is a party to or bound by any agreement with
respect to a possible merger, sale, restructuring, refinancing or other
disposition of all or any material part of the Business or the Acquired
Assets. Prior to the entry of the Bidding Procedures Order on the
Bankruptcy Court's docket, no Seller shall, directly or indirectly, (i) solicit
negotiations regarding any Acquisition Proposal, or furnish any information with
respect to, assist or participate in or facilitate in any other manner any
effort or attempt by any Person (other than Purchaser and its Affiliates) to do
or seek to do any of the foregoing, (ii) execute an agreement with respect
to an Acquisition Proposal, or (iii) except as provided in this Agreement,
seek or support Bankruptcy Court approval of a motion or Order inconsistent in
any way with the transactions contemplated in this Agreement. After
entry of the Bidding Procedures Order on the Bankruptcy Court's docket and prior
to the entry of the Sale Order on the Bankruptcy Court Docket, Sellers may take
any action in the Chapter 11 Cases seeking to sell, pursuant to a Qualifying Bid
in connection with the Auction process established in the Bidding Procedures
Order, the Acquired Assets. From the date of the entry of the Sale
Order and until the Closing Date and provided that Purchaser is proceeding in
good faith to consummate the transactions contemplated hereby in a timely
manner, no Seller or any of its Affiliates shall discuss, negotiate or
consummate any transaction involving (i) the issuance, redemption, sale or
exchange or other disposition of any equity interest in any Seller or
(ii) the sale, exchange, liquidation, reorganization, or other disposition
of all or any part of the Acquired Assets (other than the sale of RV Finished
Goods Inventory in an amount not to exceed $7,000,000 in book value of such RV
Finished Goods Inventory).
6.8 Other
Bids. Purchaser
acknowledges that pursuant to the Bidding Procedures Order and only as set forth
in Section 8.2(c) below, and
after (but in no case before) entry of the Bidding Procedures Order on the
Bankruptcy Court's docket, Sellers will solicit bids ("Bids") from other
prospective purchasers (collectively, "Bidders") for the
sale of all or substantially all of the Acquired Assets,
on terms and conditions substantially the same in all respects to this Agreement
and in accordance with the procedures set forth in the Bidding Procedures
Order.
6.9 Excluded
Assets. Subsequent
to the Closing, each Seller jointly and severally agrees to indemnify and hold
Purchaser harmless with respect to the Excluded Assets and Unassumed
Liabilities, including, without limitation, any loss, Liability, cost or expense
(including without limitation, legal fees and expenses and court costs) arising
out of or in connection with, or otherwise relating to, the Excluded Assets, the
Excluded Environmental Liabilities (regardless of whether such Liabilities are
technical Liabilities of any Seller or Affiliate) and Unassumed
Liabilities. Sellers' obligations under this Section 6.9 shall be
administrative expense priority obligations under Section 364(c)(1) of the
Bankruptcy Code.
(a) Any
sales, use, purchase, transfer, franchise, deed, fixed asset, stamp, documentary
stamp, use or other Taxes and recording charges due and which may be payable by
reason of the sale of the Acquired Assets or the assumption of the Assumed
Obligations under this Agreement or the transactions contemplated herein shall
be borne and timely paid fifty percent (50%) by Sellers and fifty percent (50%)
by Purchaser. To the extent Sellers are responsible for payment of
amounts under this Section 6.10(a),
Purchaser shall have the right to pay (on behalf of Sellers) any such amounts
and deduct such amounts from the Purchase Price on a dollar-for-dollar
basis.
(b) Sellers
shall jointly and severally, on the one hand, and Purchaser shall, on the other
hand, indemnify, defend (with counsel reasonably satisfactory to the indemnified
party or parties), protect, and save and hold each other harmless from and
against any and all Claims, charges, interest or penalties assessed, imposed or
asserted in relation to the indemnifying party's or parties' obligations under
this Section 6.10.
(c) Personal
property Taxes, real property Taxes and other similar Taxes (the "Proration Items")
with respect to the Acquired Assets for any taxable period commencing before the
Closing Date and ending after the Closing Date shall be prorated on a per diem
basis between Purchaser and Sellers as of the Closing Date. The
amount of the Proration Items attributable to Sellers shall be equal to the
amount of Tax for the period multiplied by a fraction, the numerator of which
shall be the number of days from the beginning of the period through the Closing
Date and the denominator of which shall be the number of days in the
period. To the extent Sellers are responsible for the payment of
amounts under this Section 6.10(c),
Purchaser shall have the right to pay (on behalf of Sellers) any such amounts
and deduct such amounts from the Purchase Price on a dollar-for-dollar
basis.
(d) Purchaser
shall have the right to deduct from the Purchase Price on a dollar-for-dollar
basis, and pay on behalf of Sellers, the amounts of any delinquent or past due
real property Taxes on the Acquired Owned Real Property.
6.11 Right of
Access. Pursuant
to a commercially reasonable form of multi-site access agreement in form and
substance reasonably satisfactory to Purchaser (the "Access Agreement"),
Sellers shall grant to Purchaser a license to access the Facilities (other than
the Facilities located in Bend, Oregon in the event that all Acquired Assets
located therein are moved prior to the Closing to the Coburg, Oregon Facility)
(each a "Licensed
Facility") at such times as Purchaser may reasonably determine during the
sixty (60) day period following the Closing Date (the "Access Period") for
the purpose of permitting Purchaser and its agents to dis-assemble and remove
the Acquired Assets located in the Licensed Facilities (the "Access
Rights"). Purchaser will reimburse Sellers or the then owners
of each subject Licensed Facility within thirty (30) days after invoicing for
out-of-pocket documented utility expenses, security costs and insurance costs to
the extent primarily related to Purchaser's need to access such Licensed
Facility during such sixty (60) day period or the period until Purchaser forgoes
its Right of Access as to such Licensed Facility. The Access Rights shall be
binding on Sellers and any purchasers or other transferees of the Licensed
Facilities. Sellers shall make any transferee of a Licensed Facility
aware of the existence of the Access Rights and obtain the agreement of such
transferee to be bound by the Access Rights as a condition to making any sale or
transfer of such Licensed Facility. Purchaser shall have the right to
record the existence of the Access Rights, and Sellers shall execute any
instruments or documents reasonably necessary to allow Purchaser to do
so. Purchaser shall bear all expenses in removing the Acquired Assets
from the Facilities. Purchaser shall be responsible for making
reasonable repairs for any damage to the Licensed Facilities caused by its or
its agents' actions or omissions at the Licensed Facilities.
6.12 As-Is Sale;
Disclaimers.
(a) IT IS
UNDERSTOOD AND AGREED THAT, EXCEPT AS EXPRESSLY PROVIDED HEREIN, SELLERS ARE NOT
MAKING AND HAVE NOT AT ANY TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF ANY
KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE ACQUIRED OWNED REAL
PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO
HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(b) PURCHASER
ACKNOWLEDGES AND AGREES THAT UPON CLOSING SELLERS SHALL SELL AND CONVEY TO
PURCHASER AND PURCHASER SHALL ACCEPT THE ACQUIRED OWNED REAL PROPERTY "AS IS,
WHERE IS, WITH ALL FAULTS", EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN
THIS AGREEMENT. PURCHASER HAS NOT RELIED AND WILL NOT RELY ON, AND
SELLERS ARE NOT LIABLE FOR OR BOUND BY, ANY EXPRESS OR IMPLIED WARRANTIES,
GUARANTIES, STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE
PROPERTY OR RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT LIMITATION,
OFFERING PACKAGES DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR FURNISHED BY
SELLERS, OR ANY EMPLOYEES OR AGENTS REPRESENTING OR PURPORTING TO REPRESENT
SELLERS, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN
WRITING, UNLESS SPECIFICALLY SET FORTH IN THIS AGREEMENT.
6.13 Drum Disposal
Work. Prior
to the Closing, Sellers shall conduct an inventory of all drums and other
containers (the "Drums
and Container Inventory") of unused chemicals and waste materials that
are stored onsite at the Acquired Owned Real Property and shall, in accordance
with all applicable Environmental Laws, dispose of or arrange for the disposal
of all such materials that are unusable or which otherwise constitute wastes,
including without limitation all hazardous wastes ("Drum Disposal Work");
provided that
(1) subject to Purchaser's rights under subclause (4) below,
Purchaser shall reimburse Sellers for their actual, documented out-of-pocket
costs associated with the Drum Disposal Work up to $100,000; (2) Sellers shall
ensure that the Drum Disposal Work is conducted in compliance with all
Environmental Laws and shall utilize properly licensed disposal contractors and
environmental vendors reasonably acceptable to the Purchaser; (3) all disposal
contracts, manifests and related documents shall be in Sellers' name and utilize
Sellers' waste generator I.D. number; (4) upon completion of the inventory and
prior to disposal, Sellers shall provide Purchaser with an estimate of the cost
of the Drum Disposal Work ("Disposal Estimate"),
and Purchaser shall have the right in its sole discretion to determine whether
to go forward with the Drum Disposal Work and agree to pay the estimated costs
associated thereto or modify the scope of the Drum Disposal
Work. During the conduct of the Drums and Container Inventory,
Sellers shall notify Purchaser of the existence of any drums that are stored
onsite at the Acquired Owned Real Property that contain materials or chemicals
which are necessary to operate the Business in the Ordinary Course of Business
and that do not constitute waste materials and shall consult with Purchaser
whether such materials should be disposed of pursuant to this Section 6.13. Any
drums or other containers of unused chemicals and waste materials that are
stored onsite at an Acquired Owned Real Property but which Purchaser determines
not to include as part of the Drum Disposal Work (including all of them if
Purchaser decides not to move forward with the Drum Disposal Work) shall be
deemed Acquired Assets. For the avoidance of doubt, all Liabilities
associated with Drum Disposal Work, including without limitation any Liabilities
or obligations arising with respect to the release, treatment, storage, disposal
or arranging for disposal of all such materials under CERCLA or other
Environmental Laws at any onsite or offsite location shall be deemed Excluded
Environmental Liabilities of Sellers.
6.14 Custom Chassis
Products. ParentCo
hereby consents to the following actions at Custom Chassis Products, LLC ("CCP") and shall, and
shall cause its representatives on the board of managers of CCP to, support and
take all actions reasonably necessary to complete the following as soon as
reasonably practicable: (1) the acquisition by Purchaser or one of
its Affiliates and/or by one or more third parties approved by the board of
managers of CCP of the machinery, equipment, tooling and other assets of CCP at
a price equal to fair market value (as determined by the board of managers of
CCP (and approved by the unitholders) or by an appraisal conducted by an
independent appraisal or valuation firm selected by Purchaser) for cash or such
other form of consideration as the board of managers of CCP may approve (and
approved by the unitholders) and (2) following such acquisition, the orderly
liquidation of CCP (including through a proceeding under Chapter 11 or Chapter
7, if requested by Purchaser). The covenants contained in this Section 6.14 shall be
binding on the Parties and shall remain in full force and effect regardless of
whether or not the Closing occurs or the Parties' other obligations under the
Agreement are terminated.
6.15 Insurance. To
the extent that any insurance policies owned or controlled by any Seller
(collectively, the "Sellers' Insurance
Policies") cover any loss, Liability, claim, damage or expense resulting
from, arising out of, based on or relating to occurrences prior to the Closing
and permit claims to be made thereunder with respect to such losses,
Liabilities, claims, damages or expenses after the Closing (the "Seller Claims"),
Purchaser shall have the right (but not the obligation) to submit and pursue
Seller Claims under Sellers' Insurance Policies.
6.16 Separation of "Plant 50"
Located at Elkhart, Indiana Facility. Within
fifteen (15) days following the date of this Agreement, the parties will agree
in writing as to the separation of utilities serving the Acquired Owned Real
Property in Elkhart, Indiana and the adjoining Owned Real Property in Elkhart,
Indiana and the drainage and parking rights among such
properties. The parties agree that the costs associated with the
foregoing activities shall be borne and timely paid fifty percent (50%) by
Sellers and fifty percent (50%) by Purchaser. To the extent Sellers
are responsible for payment of amounts under this Section 6.16, Purchaser
shall have the right to pay (on behalf of Sellers) any such amounts and deduct
such amounts from the Purchase Price on a dollar-for-dollar basis.
COVENANTS
OF PURCHASER
7.1 Assumed
Obligations. Subsequent
to the Closing, Purchaser agrees to be responsible for the payment and
performance of the Assumed Obligations and shall indemnify and hold Sellers
harmless with respect to the Assumed Obligations, including, without limitation,
any loss, Liability, cost or expense (including, without limitation, legal fees
and court costs) arising out of or in connection with, or otherwise relating to,
the Assumed Obligations.
7.2 Further
Assurances. Purchaser
shall execute such documents and take such further actions as may be reasonably
required to carry out the provisions of this Agreement and the transactions
contemplated hereby. Purchaser shall use commercially reasonable
efforts to fulfill or obtain the fulfillment of the conditions set forth in Article IX of
this Agreement, including, but not limited to, taking such commercially
reasonable actions as are reasonably requested by Sellers to assist, subject to
the terms and conditions hereof, in obtaining entry of the Sale Order and a
finding of adequate assurance of future performance by Purchaser with respect to
Assumed Executory Contracts, including furnishing affidavits or other documents
or information for filing with the Bankruptcy Court, and making witnesses
available to testify for the purposes, among others, of providing necessary
assurances of performance by Purchaser under this Agreement.
CONDITIONS
PRECEDENT TO OBLIGATIONS OF PURCHASER
The
obligations of Purchaser under this Agreement are, at the option of Purchaser,
subject to satisfaction of the following conditions precedent on or before the
Closing Date.
8.1 Warranties True as of Both
Present Date and Closing Date; Covenants.
(a) Each of
the representations and warranties of Sellers contained herein shall be true and
correct in all material respects on and as of the Closing Date (except for
representations and warranties made as of a specified date, which shall be true
and correct as of that date) with the same force and effect as though made on
and as of the Closing Date except that those representations and warranties that
are qualified by materiality, Material Adverse Effect, or similar phrases shall
be true and correct in all respects; except, in all cases, for such failures to
be true and correct which would not (x) be material to the Acquired Assets,
taken as a whole, or any Critical Asset, (y) increase the scope or amount
of the Assumed Obligations, or (z) be material to the ability of Purchaser to
own and/or operate the Acquired Assets or the Business after the Closing (or
materially increase Purchaser's costs in owning and/or operating the Acquired
Assets or the Business after the Closing).
(b) Sellers
shall have performed and complied in all material respects with the obligations
and covenants required by this Agreement to be performed or complied with by
Sellers on or prior to the Closing Date.
8.2 Bankruptcy
Condition.
(a) The
Bidding Procedures Order shall have been entered on the docket by the Clerk of
the Bankruptcy Court as soon as practicable and no later than the twenty-first
(21st) day after the date hereof. The Sale Order shall have been
entered on the docket by the Clerk of the Bankruptcy Court as soon as
practicable thereafter and no later than the forty-fifth (45th) day following
the date hereof and shall have become a Final Order.
(b) The Sale
Order shall approve and authorize the assumption and assignment of the Assumed
Executory Contracts and the Assumed Executory Contracts shall have been actually
assumed and assigned to Purchaser such that the Assumed Executory Contracts will
be in full force and effect from and after the Closing with non-debtor parties
being barred and enjoined from asserting against Purchaser, among other things,
defaults, breaches or claims of pecuniary losses existing as of the Closing or
by reason of the Closing.
(c) The
Bidding Procedures Order shall provide:
(i) If the
transactions contemplated hereby are not consummated for any reason other than
the material breach by Purchaser of this Agreement, Sellers shall immediately
pay (in cash) to Purchaser an amount equal to the reasonable costs and
out-of-pocket expenses incurred by Purchaser in connection with its legal,
environmental, accounting and business due diligence and the preparation and
negotiation of this Agreement up to a maximum aggregate amount of $1,250,000
(the "Expense
Reimbursement") (with Sellers being jointly and severally liable for such
payment);
(ii) In
addition to the Expense Reimbursement, upon the first to occur of (i) the
date any Seller consummates an Acquisition Proposal or (ii) the date any
Seller consummates a plan under the Bankruptcy Code, Sellers shall immediately
pay (in cash) to Purchaser, a breakup fee equal to $1,750,000 (the "Breakup Fee") with
Sellers being jointly and severally liable for such payment); provided, however, that the
Breakup Fee shall not be payable to Purchaser if a No Fee Event shall have
occurred;
(iii) That
Sellers are authorized without further Bankruptcy Court action to pay any
amounts that become due and payable to Purchaser pursuant to this Agreement
(including, without limitation, the Breakup Fee and Expense
Reimbursement). Any such amounts shall, pursuant to Section 364(c)(1)
of the Bankruptcy Code, constitute a super-priority administrative expense in
the Sellers' Chapter 11 Cases with priority over all administrative expenses of
the kind specified in section 503(b) or 507(a) of the Bankruptcy
Code. In addition, upon the consummation of any Acquisition Proposal
(whether pursuant to a plan of reorganization or otherwise), the Expense
Reimbursement and Breakup Fee shall be payable from the proceeds received by the
Sellers prior to any distribution thereof to the Sellers' secured
lenders;
(iv) No party
submitting any other offer to purchase the Acquired Assets or a Qualifying Bid
shall be entitled to any expense reimbursement, breakup, or termination or
similar fee or payment;
(v) Prior to
receipt by a prospective Bidder of any information (including, but not limited
to, business and financial information and access to representatives of Sellers)
from Sellers, each Bidder (other than a secured lender submitting a credit bid
who is subject to a confidentiality agreement in the applicable credit
agreement) shall be required to execute an appropriate confidentiality agreement
and deliver evidence reasonably satisfactory to Sellers establishing such
potential Bidders' financial capability to timely consummate a purchase of the
all the Acquired Assets;
(vi) As part
of any Bid, each Bidder (other than a secured lender submitting a credit bid)
shall submit a copy of this form of asset purchase agreement marked to show
changes, along with any other bid package requirements to ParentCo and Purchaser, and place into escrow a cash
deposit of no less than $2,500,000;
(vii) (A) a
Bid will not be considered by Sellers as qualified for the Auction unless: (1)
such Bid is for more than an amount equal to the aggregate of the sum of
(a) the Cash
Portion in cash and the assumption of the Assumed Obligations as provided
herein, (b) $1,500,000 in cash, (c) the dollar value of the Breakup
Fee in cash and (d) the dollar value of the Expense Reimbursement in cash;
(2) such Bid is void of financing or due diligence contingencies of any
kind or any other conditions precedent to such Person's obligation to purchase
the Acquired Assets other than as may be included in this Agreement;
(3) such Bid is received by Seller and Purchaser in writing on or prior to
the sixth (6th) business day prior to the Sale Hearing, (4) such Bid provides
for the immediate payment of the Breakup Fee and Expense Reimbursement to
Purchaser from the first proceeds of the cash portion of the purchase price of
such Bid or (5) the Person submitting such Bid has complied with Section 8.2(c)(v) and, to
the extent that the purchase is to be financed with new debt and/or equity
funding, has provided evidence of bona fide commitments
therefore sufficient in the aggregate to finance the purchase contemplated
thereby, including, without limitation, proof of deposit into escrow of no less
than $2,500,000 in cash (each Bid which meets the foregoing criteria
constitutes, as applicable, a "Qualifying Bid");
(B) any overbid Bids thereafter must be higher than the then existing lead
Bid in increments of not less than $500,000 in cash, provided, however, that any
overbid Bids by Purchaser thereafter shall only be required to be equal to the
sum of (1) the then existing lead Bid plus
(2) $500,000 less (3) the
dollar value of the Breakup Fee less (4) the
dollar value of the Expense Reimbursement; and (C) for all of the foregoing
purposes, a secured lender may make a Qualified Bid and overbids for the
collateral securing its Claims to the fullest extent permitted by Section 363(k)
of the Bankruptcy Code, provided that such
secured lender shall post a cash deposit equal to 5% of the excess of the amount
of its Bid over the value of its credit bid and must provide for payment in cash
at closing and/or the assumption of only (1) senior liens, (2) unpaid
administrative priority expense claims of the Sellers, including the contingent
or success fee payable upon the subject sale, (3) cash sufficient to pay
the Breakup Fee and Expense Reimbursement and (4) amounts bid in excess of its
secured claims or allocable to non-collateral.
(viii) If one or
more Qualifying Bids are submitted in accordance with the Bidding Procedures
Order, Sellers will conduct the Auction on the date within three (3) business
days prior to the Sale Hearing. At the Auction, Sellers shall have
the right to select the highest and best Bid from Purchaser and any Person who
submitted a Qualifying Bid pursuant to Section 8.2(c)(vii) (the
"Highest and Best
Bid"), which will be determined by considering, among other things:
(A) the number, type and nature of any changes to this Agreement requested
by each Bidder; (B) the extent to which such modifications are likely to
delay closing of the sale of the Acquired Assets and the cost to Sellers of such
modifications or delay; (C) the total consideration to be received by
Sellers; (D) the likelihood of the Bidder's ability to close a transaction
and the timing thereof; (E) the net benefit to the estate, taking into
account Purchaser's rights to the Breakup Fee and Expense Reimbursement (for
avoidance of doubt, Sellers hereby agree that the value attributed by Sellers to
any Bid made by Purchaser at the Auction shall at least be equal to the sum of
the following (1) the dollar value of the cash consideration contained in such
Bid, (2) the dollar value of any additional consideration contained in such Bid,
(3) the dollar value of the Breakup Fee, and (4) the dollar value of the Expense
Reimbursement); and (F) any other matter as the Sellers' fiduciary duty may
require; provided, however, that the
Sellers may consult with their secured lenders and the Official Committee of
Unsecured Creditors in making any such determination;
(ix) At the
Auction, Purchaser shall have the right to (1) submit further Bids along with a
markup of this Agreement and (2) at anytime, request that Sellers announce,
subject to any potential new Bids, the then current Highest and Best Bid and, to
the extent Purchaser requests, use reasonable efforts to clarify any and all
questions Purchaser may have regarding Sellers announcement of the then current
Highest and Best Bid;
(x) Only the
Persons who submitted Qualifying Bids and Purchaser may participate in the
Auction; and
(xi) Purchaser
shall have standing to contest the fairness of the Auction, including, but not
limited to, the Sellers' determination of the Highest and Best Bid.
(d) Notwithstanding
Sections 8.2(a) and 10.1, nothing in
this Agreement shall preclude Purchaser or Sellers from consummating the
transactions contemplated herein if Purchaser, in its sole and absolute
discretion, waives in writing the requirement that the Sale Order or any other
Order shall have become Final Orders. No notice of such waiver of
this or any other condition to Closing need be given except to ParentCo, it being the intention of the parties hereto that
Purchaser shall be entitled to, and is not waiving, the protection of Section
363(m) of the Bankruptcy Code, the mootness doctrine and any similar statute or
body of law if the Closing occurs in the absence of Final Orders.
(a) At
Closing, Purchaser shall have obtained, at its sole cost and expense, a
commitment for a basic (not extended coverage) ALTA Owners Policy of Title
Insurance for each Acquired Owned Real Property (the "Title Commitments")
and a title insurance policy (the "Title Policies")
issued by Chicago Title Company, First American Title Insurance Company or
another title insurer satisfactory to Purchaser (the "Title Insurer"), in
such amount as Purchaser determines to be the fair market value (including all
improvements thereon), insuring Purchaser's interest in such parcel as of the
Closing, subject only to the Permitted Liens and all pre-printed and/or standard
exceptions or exclusions from coverage without any additional endorsements or
coverages; provided, that
Purchaser shall use commercially reasonable efforts to obtain the Title
Policies, including payment of all premiums therefor.
(b) Purchaser
shall have approved all of the easements, agreements, subdivisions and all other
documents and instruments related to the separation of the Acquired Owned Real
Property located in Elkhart, Indiana from the remainder of the Owned Real
Property located in Elkhart, Indiana.
8.4 Material Adverse
Change. There
shall not have occurred a Material Adverse Change since the filing of the
Chapter 11 Cases.
8.5 Litigation. No
Proceedings shall be pending before and no Order shall have been issued by any
Governmental Authority that could reasonably be expected to (i) prevent or
prohibit the sale of the Acquired Assets to Purchaser or the performance of the
material obligations of the parties under this Agreement (or result in material
damages to Purchaser or any of its Affiliates as a result thereof), (ii) cause
the transactions to be rescinded following the consummation thereof, (iii)
materially modify the terms of the transactions contemplated by this Agreement
or result in the imposition of material liability on the Purchaser or its
Affiliates or (iv) have a material adverse effect on the Purchaser's ownership
or operation of the Business after the Closing Date.
8.6 Approvals. All
authorizations, consents, filings and approvals from Governmental Authorities
necessary to permit Sellers to perform the transactions contemplated hereby
shall have been duly obtained, made or given, shall be in form and substance,
reasonably satisfactory to Purchaser, shall not be subject to the satisfaction
of any condition that has not been satisfied or waived and shall be in full
force and effect. All terminations or expirations of waiting periods
imposed (and any extension thereof) by any Governmental Authority necessary for
the transactions contemplated under this Agreement, if any, shall have
occurred.
8.7 Permits and Third-Party
Consents. Purchaser
shall have obtained the material Permits and licenses necessary to operate the
Business following the Closing, and the Third-Party consents set forth on Schedule 8.7 attached
hereto.
8.8 Rejection of Dealer
Agreements. Sellers
have filed a motion with the Bankruptcy Court to reject all dealer agreements
related to the Business and all other Contracts listed on Schedule 8.8 (the "Rejection Motion"),
and the Bankruptcy Court has issued an Order approving such Rejection
Motion.
8.9 Access
Agreement. The
appropriate Seller or Sellers shall have executed and delivered to Purchaser the
Access Agreement, and such Access Agreement shall be in full force and effect as
of the Closing.
8.10 Closing
Deliveries. Sellers
shall have delivered to Purchaser (i) a certificate signed by each Seller, dated
the date of the Closing Date, (in form and substance reasonably satisfactory to
Purchaser) certifying that the conditions specified in Sections 8.1 through 8.9 have been
satisfied as of the Closing; (ii) certified copies of the resolutions of the
each Seller's board of directors authorizing the execution, delivery and
performance of this Agreement and the other agreements contemplated hereby and
the consummation of the transactions contemplated hereby and thereby; (iii)
originals (or, to the extent originals are not reasonably available, copies) of
all Assumed Executory Contracts (together with all amendments, supplements or
modifications thereto); and (iv) all of the closing deliveries set forth in
Section 10.2.
CONDITIONS
PRECEDENT TO OBLIGATIONS OF SELLERS
The
obligations of Sellers under this Agreement are, at the option of Sellers,
subject to the satisfaction of the following conditions precedent on or before
the Closing Date.
9.1 Warranties True as of Both
Present Date and Closing Date. The
representations and warranties of Purchaser contained herein shall be true and
correct in all material respects on and as of the Closing Date (except for
representations and warranties made as of a specified date, which shall be true
and correct as of that date in all material respects) with the same force and
effect as though made by Purchaser on and as of the Closing Date, except those
qualified by materiality shall be true and correct in all
respects. Purchaser shall have performed and complied in all material
respects with the obligations and covenants required by this Agreement to be
performed or complied with by Purchaser on or prior to the Closing
Date.
9.2 Bankruptcy Court
Approval. The
Bankruptcy Court shall have entered an order approving of the execution of this
Agreement by Sellers and of the consummation by Sellers of the transactions
contemplated herein that is not subject to Rule 6004(h) and Rule 6006(d) of
the Federal Rules of Bankruptcy Procedure.
9.3 Litigation. No
Proceedings shall be pending before and no Order shall have been issued by any
Governmental Authority that could reasonably be expected to (i) prevent or
prohibit the performance of the material obligations of the parties under this
Agreement, (ii) cause the transactions to be rescinded following the
consummation thereof, or (iii) materially modify the terms of the transactions
contemplated by this Agreement.
9.4 Consideration. Purchaser
shall have delivered to Sellers an amount in cash equal to the Cash Portion, as
set forth on the Purchase Price Calculation.
9.5 Approvals. All
authorizations, consents, filings and approvals from Governmental Authorities
necessary to permit Purchaser to perform the transactions contemplated hereby
shall have been duly obtained, made or given, shall be in form and substance
reasonably satisfactory to Sellers, shall not be subject to the satisfaction of
any condition that has not been satisfied or waived and shall be in full force
and effect. All terminations or expirations of waiting periods (and
any extension thereof) imposed by any Governmental Authority necessary for the
transactions contemplated under this Agreement, if any, shall have
occurred.
(a) If the
Closing occurs prior to the sale of the Roadmaster Cargo Trailer Business,
Purchaser or the appropriate Affiliate thereof shall have executed and delivered
to Roadmaster LLC a trademark license for the "Roadmaster" and "R-Sport"
trademarks in the form of Exhibit C
attached hereto (the "Roadmaster Trademark License
Agreement"), and such Roadmaster Trademark License Agreement shall be in
full force and effect as of the Closing.
(b) If the
Closing occurs prior to the sale of the Motorhomes Resort Business, Purchaser or
the appropriate Affiliate thereof shall have executed and delivered to Sellers
or an Affiliate thereof a trademark license for the "Signature Resorts Design"
trademarks in the form of Exhibit D
attached hereto (the "Signature Resorts Design
License Agreement"), and such Signature Resorts Design License Agreement
shall be in full force and effect as of the Closing.
9.7 Closing
Deliveries. Purchaser
shall have delivered to Sellers (i) a certificate signed by Purchaser,
dated the date of the Closing (in form and substance reasonably satisfactory to
Sellers) certifying that the conditions specified in Section 9.1 through Section 9.3 above have
been satisfied as of the Closing; (ii) certified copies of the resolutions
of Purchaser's board of directors authorizing the execution, delivery and
performance of this Agreement and the other agreements contemplated hereby and
the consummation of the transactions contemplated hereby and thereby; and
(iii) all of the closing deliveries set forth in Section 10.3.
CLOSING
10.1 Closing. Upon
the terms and subject to the satisfaction of the conditions contained in this
Agreement, the closing of the transaction contemplated by this Agreement (the
"Closing") will
take place at the offices of Kirkland & Ellis LLP, 300 North
LaSalle Street, Chicago, IL 60654 at 10:00 A.M. Central Standard Time no later
than the first business day after the date on which the conditions set forth in
Article VIII and
Article IX have
been satisfied or waived in writing; or on such other date or place as Purchaser
and ParentCo may determine (the "Closing
Date").
10.2 Deliveries by
Sellers. At
the Closing, Sellers shall deliver or procure delivery to Purchaser
of:
(a) physical
manifestations of all material Company Intellectual Property, including
software, that is not located at an Acquired Owned Real Property and including
Intellectual Property applications, registrations and information related
thereto;
(b) one or
more bills of sale, in the form attached hereto as Exhibit E,
conveying in the aggregate all of the owned personal property of Sellers
included in the Acquired Assets, duly executed by Sellers;
(c) one or
more assignments and assumptions of the Assumed Obligations, in the form
attached hereto as Exhibit F
(collectively, the "Assignment and
Assumption"), duly executed by the relevant Seller or
Sellers;
(d) duly
executed Intellectual Property assignments in the forms attached hereto as Exhibit G each
in recordable form to the extent necessary to assign such rights;
(e) an
affidavit from each Seller (or, with respect to any Seller treated as a
disregarded entity for federal income tax purposes, the Person treated as the
owner of such Seller's assets for such purposes), dated as of the Closing Date,
in form and substance required under the Treasury Regulations issued pursuant to
Section 1445 of the Code stating such Person's taxpayer identification number
and that such Person is not a foreign person pursuant to Section 1445(b)(2) of
the Code;
(f) special
warranty or limited warranty deeds (as may be applicable) with respect to each
Acquired Owned Real Property, in form and substance reasonably satisfactory to
Purchaser, subject only to the Permitted Liens;
(g) certificates
of title and title transfer documents to all titled motor vehicles;
and
(h) an
assignment and assumption agreement with respect to Sellers' Permits and
warranties in form and substance reasonably acceptable to Purchaser, whereby
Sellers shall assign to Purchaser all of their respective rights in and to any
Permits and warranties relating (directly or indirectly) to the Acquired Assets
or the Business, to the extent such Permits and warranties are
assignable.
10.3 Deliveries by
Purchaser. At
the Closing, Purchaser will deliver to Sellers (A) the Assignment and
Assumption duly executed by Purchaser, and (B) an amount in cash equal to
the Cash Portion, in the amount set forth on the Purchase Price Calculation
payable in the manner set forth in a Distribution of Proceeds Schedule
consistent with the terms of this Agreement and to be developed by ParentCo and
Purchaser and attached to this Agreement on or prior to April 29, 2009 (the
"Distribution of
Proceeds Schedule").
10.4 Form of
Instruments. To
the extent that a form of any document to be delivered hereunder is not attached
as an Exhibit hereto, such documents shall be in form and substance, and shall
be executed and delivered in a manner, reasonably satisfactory to Purchaser and
ParentCo.
TERMINATION;
TERMINATION PAYMENT
11.1 Termination. This
Agreement may be terminated prior to the Closing as follows:
(a) by mutual
written agreement of Purchaser and ParentCo (on behalf
of itself and Sellers);
(b) by either
Purchaser or ParentCo (on behalf of itself and Sellers)
if there shall be in effect a Final Order restraining, enjoining or otherwise
prohibiting the consummation of the transactions contemplated
hereby;
(c) by
Purchaser (provided that Purchaser is not then in material breach of any
representation, warranty, covenant or other agreement contained herein), if
there shall have been a breach or misrepresentation of any of the
representations or warranties or a breach of any of the covenants set forth in
this Agreement on the part of ParentCo that results in the conditions set forth
in Section 8.1 not being
satisfied, which breach is not cured within thirty (30) days following written
notice to ParentCo;
(d) by
ParentCo (on behalf of itself and Sellers) (provided that
ParentCo is not then in material breach of any representation, warranty,
covenant or other agreement contained herein), if there shall have been a breach
or misrepresentation of any of the representations or warranties or a breach of
any of the covenants set forth in this Agreement on the part of Purchaser that
results in the conditions set forth in Section 9.1 not being
satisfied, which breach is not cured within thirty (30) days following written
notice to Purchaser;
(e) by
Purchaser if any Seller (i) seeks or supports Bankruptcy Court approval of an
Acquisition Proposal (other than to or by Purchaser) or (ii) executes and
delivers an agreement or understanding of any kind with respect to an
Acquisition Proposal;
(f) by
Purchaser or ParentCo (on behalf of itself and Sellers)
if the Bankruptcy Court enters an order approving any Acquisition Proposal
(other than the sale of the Business and the Acquired Assets to
Purchaser);
(g) by
Purchaser on any day on or after the fiftieth (50th) day following the date
hereof if the Closing shall not have been consummated by such date (or by such
later date as shall be mutually agreed to by Purchaser and ParentCo (on behalf of itself and Sellers) in writing),
unless the Closing has not occurred due to a material failure of Purchaser to
perform or observe its agreement as set forth in this Agreement required to be
performed or observed by it on or before the Closing Date; provided, however, that
Purchaser shall have the right to extend the fiftieth (50th) day referenced
above to any day on or prior to the seventy-fifth (75th) day following the date
hereof (such fiftieth (50th) day, as may be extended by Purchaser up to the
seventy-fifth (75th) day, being referred hereto as the "Drop Dead Date") if
Purchaser certifies in writing on or prior to such fiftieth (50th) day that
Purchaser is ready, willing and able to close the transactions contemplated in
this Agreement except for Sellers' failure to meet one or more of the closing
conditions set forth in Article VIII
(which such conditions shall also be specified in writing with reasonable detail
to permit Sellers to identify what action, if any, are required in order to
satisfy such condition or conditions);
(h) by ParentCo (on behalf of itself and Sellers) on any day on or
after the Drop Dead Date if the Closing shall not have been consummated by such
date (or by such later date as shall be mutually agreed to by Purchaser and ParentCo (on behalf of itself and Sellers) in writing),
unless the Closing has not occurred due to a material failure of any Seller to
perform or observe its agreement as set forth in this Agreement required to be
performed or observed by it on or before the Closing Date.
11.2 Breakup Fee and Expense
Reimbursement.
(a) If the
transactions contemplated hereby are not consummated for any reason, Sellers
shall immediately pay (in cash) to Purchaser the Expense Reimbursement; provided, however, that the
Expense Reimbursement shall not be payable to Purchaser if this Agreement is
terminated pursuant to Section 11.1(a), Section 11.1(d) or Section 11.1(g).
(b) In
addition to the Expense Reimbursement, if (i) this Agreement is terminated
pursuant to Section 11.1(e) or Section 11.1(f) (or if,
at or prior to the time at which notice of termination under Section 11.1(c) is given,
an Acquisition Proposal has been made) and (ii) (A) any Seller consummates an
Acquisition Proposal or (B) any Seller consummates a "plan" pursuant to the
Bankruptcy Code pursuant to which an Acquisition Proposal would be consummated,
then Sellers, joint and severally, shall pay (in cash) to Purchaser the amount
of the Breakup Fee. The Breakup Fee and the Expense Reimbursement
shall be paid immediately upon the consummation of any such Acquisition Proposal
or plan from the proceeds received by the Sellers prior to any distribution
thereof to the Sellers' secured lenders.
(c) Sellers'
obligation to pay the Breakup Fee and the Expense Reimbursement pursuant to this
Section 11.2 shall
survive termination of this Agreement. Sellers are authorized without
further Bankruptcy Court action to pay any amounts that become due and payable
to Purchaser pursuant to this Agreement (including, without limitation, the
Breakup Fee and Expense Reimbursement). Any such amounts shall,
pursuant to Section 364(c)(1) of the Bankruptcy Code, constitute a
super-priority administrative expense in the Sellers' Chapter 11 Cases with
priority over all administrative expenses of the kind specified in section
503(b) or 507(a) of the Bankruptcy Code. In addition, upon the
consummation of any Acquisition Proposal (whether pursuant to a plan of
reorganization or otherwise), the Expense Reimbursement and Breakup Fee shall be
payable from the proceeds received by the Sellers prior to any distribution
thereof to the Sellers' secured lenders.
11.3 Effect of
Termination or
Breach. If
the transactions contemplated hereby are not consummated (a) this Agreement
shall become null and void and of no further force and effect, except
(i) for this Section 11.3,
(ii) for the provisions of Sections 11.2 (Breakup Fee
and Expense Reimbursement), 13.1 (Expenses),
13.7 (Submission
to Jurisdiction), 13.8 (Governing
Law), 13.9 (Binding
Nature; Assignment), 13.10 (No Third
Party Beneficiary), 13.11
(Construction) hereof and 6.14 (Custom
Chassis Products), and (iii) that the termination of this Agreement for any
cause shall not relieve any party hereto from any Liability which at the time of
termination had already accrued to any other party hereto or which thereafter
may accrue in respect of any act or omission of such party prior to such
termination; (b) in the event this Agreement is terminated in accordance with
its terms, the payment of the Breakup Fee and Expense Reimbursement shall be
sole and exclusive remedy (as liquidated damages) of Purchaser; (c) in the event
this Agreement is terminated by Sellers pursuant to Section 11.1(d),
Purchaser shall indemnify Sellers for any actual damages suffered by Sellers up
to an amount not to exceed $4,000,000 ($4,000,000 being the maximum liability of
Purchaser to Sellers, any of their Affiliates or any Third Party under or in
connection with this Agreement, whether in contract or tort, under any statute,
rule or regulation or otherwise), and (d) if this Agreement is terminated for
any reason other than termination of this Agreement by Sellers pursuant to Section 11.1(d), Sellers
shall not be entitled to any damages, losses, or payment from Purchaser, and
Purchaser shall have no further obligation or Liability of any kind to Sellers,
any of their Affiliates, or any Third Party under or in connection with this
Agreement (whether in contract or tort, under statute, rule, Regulation or
otherwise).
ADDITIONAL
POST-CLOSING COVENANTS
(a) Immediately
prior to the Closing, the employment of all of the employees of Sellers
applicable to the Business shall be terminated by the applicable Seller, and all
such employees shall have the right to apply for employment with
Purchaser. Sellers recognize that Purchaser intends to make offers of
employment to certain employees of Sellers, on terms and conditions of
employment that may be different from those provided by Sellers, and that it is
uncertain how many employees of Sellers will accept employment with
Purchaser. The number of offers of employment made by Purchaser, and
the terms and conditions of such offers, shall be determined by Purchaser in its
sole discretion and in accordance with applicable law. Sellers shall
be responsible for (and Sellers shall jointly and severally indemnify and hold
Purchaser harmless from and against), any and all wages, bonuses, commissions,
employee benefits, retention or stay bonus arrangements, and other compensation
(including all obligations under any Employee Benefit Plans) due to the
employees of Sellers arising out of their employment with Sellers prior to and
as of the Closing.
(b) Purchaser
and Sellers acknowledge and agree that nothing contained in this Agreement shall
confer upon any Rehired Employee any right with respect to continuance of
employment by Purchaser, nor shall anything herein interfere with the right of
Purchaser to terminate the employment of any Rehired Employees at any time, with
or without notice, or restrict Purchaser, in the exercise of its business
judgment in modifying any of the terms or conditions of employment of the
Rehired Employees after the Closing.
12.2 Employee Benefit
Plans.
(a) Purchaser
shall not assume any Employee Benefit Plans or any obligation or Liability
thereunder and Purchaser shall provide benefits to those Rehired Employees as of
or after the Closing as Purchaser, in its sole discretion, shall
determine. Sellers shall jointly and severally indemnify, defend and
hold harmless Purchaser from and against any and all obligations, Claims, or
Liabilities under any Benefit Plans to which Sellers or any ERISA Affiliate have
any actual or potential Liability. With respect to all claims by
current and former employees of Sellers arising prior to or as of the Closing
Date under any Employee Benefit Plans, whether insured or otherwise (including,
but not limited to, life insurance, medical and disability programs), Sellers
shall, at their own expense, honor or cause their respective insurance carriers
to honor such claims, whether made before or after the Closing, in accordance
with the terms and conditions of such Employee Benefit Plans without regard to
the employment by Purchaser of any such employees after the
Closing.
(b) Sellers
shall be responsible for all health and welfare claims incurred at any time
under any Former Plan and any other health and welfare plan maintained by
Sellers and their ERISA Affiliates, regardless of when such claim was
incurred. Sellers shall be solely responsible for satisfying the
COBRA notice and continuation coverage requirements for all current and former
employees (and their eligible dependents) who are entitled to elect COBRA
coverage on account of a qualifying event occurring at any time (i.e., prior to,
on or after Closing); except that Purchaser shall be responsible for satisfying
the COBRA notice and continuation coverage requirements for Rehired Employees
(and their eligible dependents) who are entitled to elect COBRA coverage on
account of a qualifying event occurring after the Closing Date.
(c) Notwithstanding
anything set forth in this Article XII, nothing
contained herein, whether express or implied, (i) shall be treated as an
amendment or other modification of any employee benefit plan maintained by
Purchaser or its Affiliates, or (ii) shall limit the right of Purchaser or its
Affiliates to amend, terminate or otherwise modify any employee benefit plan
following the Closing.
12.3 Sellers' Cooperation in
Hiring of Employees. Sellers
shall cooperate with Purchaser and shall permit Purchaser a reasonable period
prior to the Closing Date (i) to meet with employees of Sellers (including
managers and supervisors) at such times as Purchaser shall reasonably request,
(ii) to speak with such employees' managers and supervisors (in each case
with appropriate authorizations and releases from such employees) who are being
considered for employment by Purchaser, (iii) to distribute to such employees of
Sellers such forms and other documents relating to potential employment by
Purchaser after the Closing as Purchaser may reasonably request, and (iv) to
permit Purchaser's counsel, upon request, to review personnel files and other
relevant employment information regarding employees of Sellers.
12.4 WARN Act. In
respect of notices and payments relating to events occurring on or prior to the
Closing, Sellers shall be jointly and severally responsible for and assume
(based on the bankruptcy claim priority otherwise applicable and without
elevating the bankruptcy priority thereof by such assumption) all Liability for
(and Sellers shall jointly and severally indemnify and hold Purchaser harmless
from and against) any and all notices, payments, fines or assessments due to any
Person or Government Authority, pursuant to any applicable Regulation with
respect to the employment, discharge or layoff of employees by Sellers as of or
before the Closing, including but not limited to the WARN
Act. Likewise, in respect of notices and payments relating to events
occurring after the Closing, Purchaser shall be responsible and assume (and
shall indemnify and hold Sellers harmless from and against) all Liability for
any and all notices, payments, fines or assessments due to any Person or
Government Authority, pursuant to the WARN Act, with respect to the employment,
discharge or layoff of Rehired Employees after the Closing; provided, however, that such
indemnification obligation by Purchaser shall arise only if Sellers on or before
the Closing have provided to Purchaser a list of employees, by location, laid
off or terminated by Sellers in the ninety (90) day period preceding the
Closing. For the avoidance of doubt, Sellers shall be jointly and
severally responsible for and assume (based on the bankruptcy claim priority
otherwise applicable and without elevating the bankruptcy priority thereof by
such assumption) all Liability for (and Sellers shall jointly and severally
indemnify and hold Purchaser harmless from and against) any and all notices,
payments, fines or assessments due to any Person or Government Authority,
pursuant to the WARN Act, with respect to any actions or omissions of Sellers on
or after the Closing affecting any employees of Sellers who do not become
Rehired Employees.
12.5 Joint Post-Closing Covenant
of Purchaser and Sellers. Purchaser
and Sellers jointly covenant and agree that, from and after the Closing Date,
Purchaser and Sellers will each use commercially reasonable efforts to cooperate
with each other in connection with any action, suit, proceeding, investigation
or audit of the other relating to (a) the preparation of an audit of any
Tax Return of any Seller or Purchaser for all periods prior to or including the
Closing Date and (b) any audit of Purchaser and/or any audit of any Seller
with respect to the sales, transfer and similar Taxes imposed by the laws of any
state or political subdivision thereof, relating to the transactions
contemplated by this Agreement. In furtherance hereof, Purchaser and
Sellers further covenant and agree to promptly respond to all reasonable
inquiries related to such matters and to provide, to the extent reasonably
possible, substantiation of transactions and to make available and furnish
appropriate documents and personnel in connection therewith. All
costs and expenses incurred in connection with this Section 12.5 referred to
herein shall be borne by the party who is subject to such action.
12.6 Certain
Consents. If
a consent of a Third Party which is required in order to assign any Acquired
Asset (or Claim, right or benefit arising thereunder or resulting therefrom) is
not obtained prior to the Closing Date, or if an attempted assignment would be
ineffective or would adversely affect the ability of any Seller to convey its
interest in question to Purchaser, Sellers will cooperate with Purchaser and use
commercially reasonable efforts in any lawful arrangement to provide that
Purchaser shall receive the interests of any Seller in the benefits of such
Acquired Asset. If any consent or waiver is not obtained before the
Closing Date and the Closing is nevertheless consummated, each Seller agrees to
continue to use commercially reasonable efforts to obtain all such consents as
have not been obtained prior to such date.
12.7 Name
Changes. Except
as expressly permitted in the Roadmaster Trademark License Agreement or the
Signature Resorts Design License Agreement, Sellers shall not, and shall cause
their Affiliates not to, use or license or permit any third party to use any
trademark, service mark, logo, slogan, trade name, corporate name or Internet
domain name that is likely to cause confusion with the trademarks set forth on
Schedule 4.19(a) or that
includes, or is similar or deceptively similar to, the name "Monaco," "Bison,"
"R-Vision," or "Roadmaster" (collectively, the "Monaco
Marks"). Within ten (10) days following the Closing Date,
Sellers shall file, and shall cause their Affiliates to file, all documentation
necessary to change their respective corporate names so as to comply
with the requirements of this Section 12.7 and shall, and
shall cause their Affiliates to, remove from their respective assets,
properties, stationery, literature and Internet website any and all Monaco Marks
except as expressly permitted in the Roadmaster Trademark License Agreement or
the Signature Resorts Design License Agreement. In the event that
Sellers or their Affiliates breach this Section 12.7, Purchaser
shall be entitled to specific performance of this Section 12.7 and to
injunctive relief against further violations, as well as any other remedies at
law or in equity available to Purchaser.
12.8 Assignment of Domain
Names. After
the date hereof and for a period of thirty (30) days after the Closing Date,
Sellers shall grant to Purchaser access to Sellers' administrative contact for
Sellers' domain names and make such person available to Purchaser and its
representatives and agents to effectuate the transfer to Purchaser of the domain
names which constitute an Acquired Asset hereunder.
12.9 Access to
Information. For
a period of twenty-four (24) months after the Closing Date (or such shorter
period as Sellers maintain their corporate existence), each party and their
representatives shall have reasonable access to, and each shall have
the right to photocopy, all of the Books and Records relating to the Business or
the Acquired Assets, including all employee records or other personnel and
medical records required by law, legal process or subpoena, in the possession of
the other party to the extent that such access may reasonably be required by
such party in connection with the Assumed Obligations or the Unassumed
Liabilities, or other matters relating to or affected by the operation of the
Business and the Acquired Assets. Such access shall be afforded by
the party in possession of such Books and Records upon receipt of reasonable
advance notice and during normal business hours; provided, however, that
(A) any such investigation shall be conducted in such a manner as not to
interfere unreasonably with the operation of the business of any party or its
Affiliates, (B) no party shall be required to take any action which would
constitute a waiver of the attorney-client privilege and (C) no party need
supply the other party with any information which such party is under a legal
obligation not to supply. The party exercising this right of access
shall be solely responsible for any costs or expenses incurred by it pursuant to
this Section 12.9.
12.10 Tax
Matters. Purchaser
shall within 120 days after the Closing Date prepare and deliver to Sellers a
schedule allocating the Purchase Price (plus any Cure Payments made by Purchaser
on behalf of Sellers and any other items that are required for federal income
tax purposes to be treated as part of the purchase price, but excluding any
Assumed Obligations that are or would be expected to give rise to Purchaser's
current deductions or capitalized expenditures for tax purposes after the
Closing Date) among the respective Sellers and the Acquired Assets (such
schedule, the "Allocation"). Purchaser
and Sellers shall report and file all Tax Returns (including amended Tax Returns
and claims for refund) consistent with the Allocation, and shall take no
position contrary thereto or inconsistent therewith (including, without
limitation, in any audits or examinations by any Governmental Authority or any
other proceeding). Purchaser and Sellers shall cooperate in the
filing of any forms (including Form 8594 under Section 1060 of the Code)
with respect to such Allocation, including any amendments to such forms required
pursuant to this Agreement with respect to any adjustment to the Purchase
Price. If and to the extent the parties are unable to agree on such
Allocation, the parties shall retain the Valuation Firm to resolve such
dispute. Notwithstanding any other provision of this Agreement, the
terms and provisions of this Section 12.10 shall
survive the Closing without limitation.
12.11 Confidentiality. After
the Closing, each Seller shall maintain as confidential and shall not use or
disclose (except as required by law or as authorized in writing by Purchaser)
any Confidential Information. Each Seller further agrees
to take all appropriate steps (and to cause each of its Affiliates to take all
appropriate steps) to safeguard such Confidential Information and to protect it
against disclosure, misuse, espionage, loss and theft. In the event
any Seller is required by law to disclose any Confidential Information, such
Party shall promptly notify Purchaser in writing, which notification shall
include the nature of the legal requirement and the extent of the required
disclosure, and shall cooperate with Purchaser to preserve the confidentiality
of such information consistent with applicable law.
MISCELLANEOUS
(a) Except as
provided in Sections
11.2 hereof, each
party hereto shall bear its own costs and expenses, including attorneys' fees,
with respect to the transactions contemplated hereby. Notwithstanding
the foregoing, in the event of any action or proceeding to interpret or enforce
this Agreement, the prevailing party in such action or proceeding (i.e., the
party who, in light of the issues contested or determined in the action or
proceeding, was more successful) shall be entitled to have and recover from the
non-prevailing party such costs and expenses (including, without limitation, all
court costs and reasonable attorneys' fees) as the prevailing party may incur in
the pursuit or defense thereof.
(b) The
parties hereto agree that if any claims for commissions, fees or other
compensation, including, without limitation, brokerage fees, finder's fees, or
commissions are ever asserted against Purchaser or Sellers in connection with
this transaction, all such claims shall be handled and paid by the party whose
actions form the basis of such claim and such party shall indemnify (with
counsel reasonably satisfactory to the party(ies) entitled to indemnification)
and hold the other harmless from and against any and all such claims or demands
asserted by any Person, firm or corporation in connection with the transaction
contemplated hereby.
13.2 Amendment. This
Agreement may not be amended, modified or supplemented except by a written
instrument signed by ParentCo (on behalf of itself and
Sellers) and Purchaser.
13.3 Notices. All
notices, requests, demands and other communications permitted or required to be
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed conclusively to have been given (i) when
personally delivered, (ii) when sent by facsimile (with hard copy to follow)
during a business day (or on the next business day if sent after the close of
normal business hours or on any non-business day), (iii) when sent by electronic
mail (with hard copy to follow) during a business day (or on the next business
day if sent after the close of normal business hours or on any non-business
day), (iv) one (1) business day after being sent by reputable overnight express
courier (charges prepaid), or (v) three (3) business days following mailing by
certified or registered mail, postage prepaid and return receipt
requested. Unless another address is specified in writing, notices,
requests, demands and communications to the parties shall be sent to the
addresses indicated below:
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To
Sellers:
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Monaco
Coach Corporation
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91320
Industrial Way
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Coburg,
Oregon 97408
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Attn: Chief
Executive Officer
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Fax: (541)
302-3800
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E-mail: kay.toolson@monacocoach.com
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with
copies to:
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Wilson
Sonsini Goodrich & Rosati, P.C.
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One
Market Street
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Spear
Tower, Suite 3300
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San
Francisco, CA 94105
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Attn: Robert
T. Ishii
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Fax: (415)
947-2099
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E-mail: rishii@wsgr.com
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and
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Pachulski
Stang Ziehl & Jones LLP
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919
North Market Street, 17th Floor
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Wilmington,
DE 19899-8705
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Attn: Laura
Davis Jones
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Fax: (302)
652-4400
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E-mail: ljones@pszjlaw.com
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To
Purchaser, to:
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Navistar,
Inc.
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4201
Winfield Road
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P.O.
Box 1488
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Warrenville,
Illinois 60555
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Attn.: General
Counsel
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Fax:
(630) 753-2261
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Email: steven.covey@navistar.com
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and
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Kirkland
& Ellis LLP
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300
North LaSalle Street
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Chicago,
Illinois 60654
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Attn: Keith
S. Crow, P.C.
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Fax: (312)
862-2200
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E-mail: keith.crow@kirkland.com
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13.4 Waivers. The
failure of a party hereto at any time or times to require performance of any
provision hereof shall in no manner affect its right at a later time to enforce
the same. No waiver by a party of any condition or of any breach of
any term, covenant, representation or warranty contained in this Agreement shall
be effective unless in writing by ParentCo, in the case
of a waiver by any Seller, or Purchaser, in the case of any waiver by Purchaser,
and no waiver in any one or more instances shall be deemed to be a further or
continuing waiver of any such condition or breach of other instances or a waiver
of any other condition or breach of any other term, covenant, representation or
warranty.
13.5 Electronic Delivery;
Counterparts. This
Agreement and any signed agreement or instrument entered into in connection with
this Agreement, and any amendments hereto or thereto, may be executed in one or
more counterparts, all of which shall constitute one and the same
instrument. Any such counterpart, to the extent delivered by means of
a facsimile machine or by .pdf, .tif, .gif, .peg or similar attachment to
electronic mail (any such delivery, an "Electronic Delivery")
shall be treated in all manner and respects as an original executed counterpart
and shall be considered to have the same binding legal effect as if it were the
original signed version thereof delivered in person. At the request
of any party hereto, each other party hereto or thereto shall re-execute the
original form of this Agreement and deliver such form to all other
parties. No party hereto shall raise the use of Electronic Delivery
to deliver a signature or the fact that any signature or agreement or instrument
was transmitted or communicated through the use of Electronic Delivery as a
defense to the formation of a contract, and each such party forever waives any
such defense, except to the extent such defense relates to lack of
authenticity.
13.6 Headings. The
headings preceding the text of the Articles and Sections of this Agreement and
the Exhibits and the Schedules are for convenience only and shall not be deemed
part of this Agreement.
13.7 SUBMISSION TO
JURISDICTION. THE
PARTIES HEREBY AGREE THAT ANY AND ALL CLAIMS, ACTIONS, CAUSES OF ACTION, SUITS,
AND PROCEEDINGS RELATING TO THIS AGREEMENT OR THE OTHER AGREEMENTS CONTEMPLATED
HEREIN SHALL BE FILED AND MAINTAINED ONLY IN THE BANKRUPTCY COURT, AND THE
PARTIES HEREBY CONSENT TO THE JURISDICTION OF SUCH COURT; PROVIDED, HOWEVER,
THAT IF THE CHAPTER 11 CASES HAVE CLOSED, THE PARTIES AGREE THAT ANY AND ALL
CLAIMS, ACTIONS, CAUSES OF ACTION, SUITS AND PROCEEDINGS RELATING TO THIS
AGREEMENT OR THE OTHER AGREEMENTS CONTEMPLATED HEREIN SHALL BE FILED AND
MAINTAINED IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE AND
ANY APPELATE COURT THEREOF AND THE PARTIES HEREBY CONSENT TO THE JURISDICTION OF
SUCH COURT.
13.8 Governing
Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware (regardless of the laws that might otherwise govern under
applicable Delaware principles of conflicts of law) as to all matters, including
but not limited to matters of validity, construction, effect, performance and
remedies.
13.9 Binding Nature;
Assignment. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns, but neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by any of the parties hereto without prior written consent of the other
parties (which shall not be unreasonably withheld or delayed); except (i) that
Purchaser may assign, in whole or in part, any of its rights and obligations
hereunder to (x) any Affiliate or Subsidiary of Purchaser (whether wholly owned
or otherwise), (y) to its lender(s) and, (z) following the Closing, in whole or
in part to any successor-in-interest to any Person acquiring all or any portion
of the Business or the Acquired Assets; (ii) the rights and interests of
Sellers hereunder may be assigned to a trustee appointed under Chapter 11
or Chapter 7 of the Bankruptcy Code; (iii) this Agreement may be
assigned to any entity appointed as a successor to Sellers pursuant to a
confirmed Chapter 11 plan; and (iv) as otherwise provided in this
Agreement. Sellers hereby agree that Purchaser may grant a security
interest in its rights and interests hereunder to its lenders, and Sellers will
sign a consent with respect thereto if so requested by Purchaser or its lender,
and that the terms of this Agreement shall be binding upon any subsequent
trustee appointed under Chapter 11 or Chapter 7 of the Bankruptcy
Code.
13.10 No Third Party
Beneficiaries. This
Agreement is solely for the benefit of the parties hereto and nothing contained
herein, express or implied, is intended to confer on any Person other than the
parties hereto or their successors and permitted assigns, any rights, remedies,
obligations, Claims, or causes of action under or by reason of this
Agreement.
13.11 Construction. The
language used in this Agreement will be deemed to be the language chosen by the
parties to this Agreement to express their mutual intent, and no rule of strict
construction shall be applied against any party. Any reference to any
federal, state, local or foreign statute or law shall be deemed also to refer to
all rules and Regulations promulgated thereunder, unless the context requires
otherwise.
13.12 Public
Announcements. Except
as required by law or in connection with the Chapter 11 Cases, neither
Sellers nor Purchaser shall issue any press release or public announcement
concerning this Agreement or the transactions contemplated hereby without
obtaining the prior written approval of the other parties hereto relating to the
contents and manner of presentation and publication thereof, which approval will
not be unreasonably withheld, delayed or conditioned. Prior to making
any public disclosure required by applicable law, the disclosing parties shall
give the other party a copy of the proposed disclosure and reasonable
opportunity to comment on the same. Notwithstanding the foregoing,
Purchaser shall not be restricted from making any public announcements or
issuing any press releases after the Closing. Notwithstanding
anything herein to the contrary, each Seller and Purchaser agree (on behalf of
itself and each Affiliate and Person acting on behalf of it) that each party
hereto (and each employee, representative, and other agent of any party hereto)
may disclose to any and all Persons, without limitation of any kind, the Tax
treatment and Tax structure of the transaction and all materials of any kind
(including opinions or other Tax analyses) that are provided to any party hereto
or any Person relating to such Tax treatment and Tax structure, except to the
extent necessary to comply with any applicable federal or state securities
laws. Each Seller and Purchaser agree that the authorization
contained in the immediately preceding sentence is not intended to permit
disclosure of any other information, including, without limitation, (i) any
portion of any materials to the extent not related to the Tax treatment or Tax
structure of the transaction, (ii) the identities of participants or potential
participants in the transaction, (iii) the existence or status of any
negotiations, (iv) any pricing or financial information (except to the extent
such pricing or financial information is related to the Tax treatment or Tax
structure of the transaction), or (v) any other term or detail not relevant to
the Tax treatment or the Tax structure of the transaction.
13.13 Entire
Understanding. This
Agreement, the Exhibits and the Schedules set forth the entire agreement and
understanding of the parties hereto in respect to the transactions contemplated
hereby and the Agreement, the Exhibits and the Schedules supersede all prior
agreements, arrangements and understandings relating to the subject matter
hereof and are not intended to confer upon any other Person any rights or
remedies hereunder.
13.14 Closing
Actions. All
deliveries, payments and other transactions and documents relating to the
Closing shall be interdependent, and none shall be effective unless and until
all are effective (except to the extent that the party entitled to the benefit
thereof has waived satisfaction or performance thereof as a condition precedent
to the Closing).
13.15 Conflict between Transaction
Documents. The
parties hereto agree and acknowledge that to the extent any terms and provisions
of this Agreement are in any way inconsistent with or in conflict with any term,
condition or provision of any other agreement or document referred to herein,
this Agreement shall govern and control.
13.16 Survival. The
representations and warranties of Sellers and Purchaser contained in this
Agreement or in any instrument delivered in connection herewith shall not
survive the Closing. All covenants and agreements herein that are
contemplated by this Agreement to be performed after the Closing shall survive
the Closing.
13.17 Guaranty by Navistar,
Inc.
(a) Guarantor
hereby agrees to make funds available to Purchaser to pay the Purchase Price at
Closing.
(b) Guarantor
hereby guarantees all obligations of Purchaser under this Agreement (the "Obligations"). Guarantor
agrees that its guarantee obligation shall not be released or discharged, in
whole or in part, or otherwise affected by (i) any change in the time, place or
manner of payment of the Obligations or any rescission, waiver, compromise,
consolidation or other amendment or modification of any of the terms or
provisions of this Agreement made in accordance with this Agreement hereof or
any other agreement executed by Purchaser in connection with the Obligation;
(ii) any change in the corporate existence, structure or ownership of Purchaser;
or (iii) the existence of any claim, set-off or other right which Guarantor may
have at any time against Purchaser, whether in connection with the Obligations
or otherwise. Guarantor waives promptness, diligence, notice of the
acceptance of the Obligations and all suretyship defenses generally; provided that
Guarantor shall retain and have the benefit of, and shall be entitled to assert,
all defenses to the payment of the Obligations that are available to
Purchaser.
* * * * *
IN
WITNESS WHEREOF, the parties hereto have caused this Asset Purchase Agreement to
be executed and delivered on the date first above written.
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PURCHASER:
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Workhouse
International Holding Company, a
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Delaware
Corporation
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By:
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/s/ David W.
Tarrant
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Name:
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David
W. Tarrant
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Its:
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President
and CEO
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GUARANTOR
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Solely
for purposes of Section 13.17
only:
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Navistar,
Inc., a Delaware Corporation
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By:
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/s/ Richard C.
Tarapchak
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Name:
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Richard
C. Tarapchak
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Its:
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Vice
President
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SELLERS:
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Monaco
Coach Corporation, a Delaware
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Corporation
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By:
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/s/ Kay
Toolson
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Name:
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Kay
Toolson
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Its:
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Chairman
and Chief Executive Officer
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R-Vision
Holdings LLC, a Delaware Limited
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Liability
Company
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By:
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/s/ P.
Martin
Daley
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Name:
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P.
Martin Daley
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Its:
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Vice
President
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Signature
Page to Asset Purchase Agreement
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R-Vision,
Inc., an Indiana Corporation
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By:
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/s/ P. Martin
Daley
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Name:
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P.
Martin Daley
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Its:
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Vice
President
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R-Vision
Motorized, LLC, an Indiana Limited
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Liability
Company
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By:
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/s/ P. Martin
Daley
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Name:
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P.
Martin Daley
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Its:
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Vice
President
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Bison
Manufacturing, LLC, an Indiana Limited
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Liability
Company
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By:
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/s/ P. Martin
Daley
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Name:
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P.
Martin Daley
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Its:
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Vice
President
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Roadmaster
LLC, an Indiana Limited
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Liability
Company
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By:
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/s/ P. Martin
Daley
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Name:
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P.
Martin Daley
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Its:
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Vice
President
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Signature Page
to Asset Purchase Agreement