CONSUMMATED IN EACH CASE WITHOUT POSTING A BOND OR
UNDERTAKING.
EACH PARTY HERETO WAIVES ANY DEFENSES IN ANY ACTION FOR SPECIFIC
PERFORMANCE, INCLUDING THAT A REMEDY AT LAW WOULD BE ADEQUATE.
SUCH REMEDIES
SHALL, HOWEVER, BE CUMULATIVE AND NOT EXCLUSIVE AND SHALL BE IN ADDITION TO ANY
OTHER REMEDIES WHICH ANY PARTY MAY HAVE UNDER THIS AGREEMENT OR OTHERWISE.
EACH
OF THE PARTIES HERETO EXPRESSLY DISCLAIMS THAT IT IS OWED ANY DUTIES NOT
EXPRESSLY SET FORTH IN THIS AGREEMENT, AND WAIVES AND RELEASES ANY AND ALL TORT
CLAIMS AND CAUSES OF ACTION THAT MAY BE BASED UPON, ARISE OUT OF OR RELATE TO
THIS AGREEMENT, OR THE NEGOTIATION, EXECUTION OR PERFORMANCE OF THIS AGREEMENT.
SECTION 9.14
ASSIGNMENT.
THIS AGREEMENT SHALL BE BINDING UPON AND
INURE TO THE BENEFIT OF THE SUCCESSORS AND ASSIGNS OF EACH PARTY HERETO, BUT, NO
RIGHTS, OBLIGATIONS OR LIABILITIES HEREUNDER SHALL BE ASSIGNABLE BY ANY PARTY
WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER PARTIES, AND ANY PURPORTED
ASSIGNMENT IN VIOLATION OF THIS SECTION 9.14 SHALL BE NULL AND VOID AB INITIO;
PROVIDED, HOWEVER, PRIOR TO THE CLOSING, ACQUIRER MAY ELECT (UPON WRITTEN NOTICE
SENT TO THE SELLERS) TO ASSIGN ALL OR ANY PART OF ITS RIGHTS AND OBLIGATIONS
UNDER THIS AGREEMENT TO ANY AFFILIATE OF ACQUIRER (INCLUDING ANY SUBSIDIARY
FORMED FOR SUCH PURPOSE) AND TO CAUSE SUCH AFFILIATE TO PERFORM THE OBLIGATIONS
OF ACQUIRER UNDER THIS AGREEMENT; PROVIDED, FURTHER, THAT NO SUCH ASSIGNMENT
SHALL OTHERWISE VARY OR DIMINISH ANY OF ACQUIRER'S OBLIGATIONS UNDER THIS
AGREEMENT TO THE EXTENT ITS AFFILIATE FAILS TO DULY PERFORM THE OBLIGATIONS OF
ACQUIRER UNDER THIS AGREEMENT; PROVIDED, FURTHER THAT NOTHING CONTAINED IN THIS
AGREEMENT SHALL LIMIT OR RESTRICT SELLERS OR GUARANTOR FROM MAKING A COLLATERAL
ASSIGNMENT OF THEIR RIGHTS HEREUNDER FOR THE BENEFIT OF THE LENDERS UNDER THE
CREDIT AGREEMENT.
ACQUIRER HAS INFORMED THE SELLERS THAT PRIOR TO THE CLOSING
THAT IT CURRENTLY INTENDS TO ASSIGN ITS RIGHTS AND OBLIGATIONS HEREUNDER WITH
RESPECT TO THE PURCHASED ASSETS AND ASSUMED LIABILITIES RELATING TO THE CANADIAN
BUSINESS TO A CANADIAN DOMICILED SUBSIDIARY.
49
ARTICLE X.
DEFINITIONS
SECTION 10.1
DEFINITIONS.
AS USED IN THIS AGREEMENT, THE FOLLOWING
DEFINED TERMS SHALL HAVE THE MEANINGS INDICATED BELOW:
"Accounting Procedures" means Sellers' accounting policies, procedures,
estimates and calculations, consistently applied in accordance with GAAP;
provided, however, that with respect to the calculation of inventory reserves,
the procedures set forth on Section 10(a) of the Disclosure Schedule shall be
used.
In addition, for purposes of calculating Tangible Net Worth, (A) in the
event that inventory included in the Purchased Assets at Closing (based on the
value derived from the immediately preceding sentence) is valued at not less
than Thirty Three Million Dollars ($33,000,000), (i) any such inventory in
excess of Thirty Three Million Dollars ($33,000,000) in value shall be
discounted ten percent (10%) and (ii) any such inventory Aged more than 180 days
in excess of Eight Million Dollars ($8,000,000) in value shall be discounted ten
percent (10%) (in addition to any discount applied to such