Case 12-13262-CTG Doc 558-2 Filed 05/07/13 Page 1 of 29
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`Exhibit A
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`Asset Purchase Agreement
`
`(without Schedules)
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`DOCSDE: 187335.5 73864/001
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`

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`ASSET PURCHASE AGREEMENT
`
`THIS ASSET PURCHASE AGREEMENT
`(the "Agreement") is made and entered
`into as of this day of May, 2013, by and between (the "Buyer"), and Greenwood Forgings,
`LLC, a Delaware limited liability company ("Seller" and, together with Buyer, the "Parties"),
`the Seller being a Debtor and Debtor in Possession under Case No. 12-13262 (BLS) (the
`"Bankruptcy
`"Case") in the United States Bankruptcy Court for the District of Delaware (the
`Court").
`
`RECITALS
`
`A.
`
`The Seller was a manufacturer of forged aluminum products (the "Business").
`
`B.
`Seller wishes to sell to Buyer, pursuant to Sections 363 of Chapter 11 of Title 11
`of the United States Code (the "Bankruptcy Code"), substantially all of the assets of Seller
`heretofore used exclusively in connection with or arising out of the operation of the Business, all
`at the price and on the other terms and conditions specified in detail below and Buyer wishes to
`so purchase and acquire such assets from Seller.
`
`NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
`of which is hereby acknowledged, the Parties agree as follows:
`
`1. Transfer of Assets.
`
`1.1 (cid:9)
`Purchase and Sale of Assets. On the Closing Date, as hereinafter defined,
`in consideration of the covenants, representations and obligations of Buyer hereunder, and
`subject to the conditions hereinafter set forth, Seller shall sell, assign, transfer, convey and
`deliver to Buyer, and Buyer shall purchase from Seller, the Seller’s right, title and interest as of
`the Closing Date in and to those assets used exclusively in connection with the operation of the
`Business, including, without limitation, the following (collectively, excluding the Excluded
`Assets (as defined in Section 1.2 below), the "Property"):
`
`1.1.1 Leases. Seller’s right, title and interest in and to the lessee’s
`interest under the real property lease described on Schedule 1.1.1 attached to this Agreement and
`incorporated herein by this reference (the "Real Property Lease").
`
`1.1.2 Personal Property. All of those items of equipment, machinery,
`tools, spare parts, furniture, furnishings and other tangible personal property listed or described
`in Schedule 1.1.2 attached to this Agreement and incorporated herein by this reference
`(collectively, the "Personal Property").
`
`1.1.3 Intangible Property. All intangible personal property owned or
`held by Seller to the extent heretofore used exclusively in connection with the Business, but in
`all cases only to the extent of Seller’s interest and only to the extent transferable, together with
`all books, records and like items pertaining to the Business, including, without limitation, the
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`{*} 1
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`name "Greenwood Forgings, LLC," the goodwill of the Business, patents, processes, trademarks,
`trade names, service marks, catalogues, customer lists and other customer data bases,
`correspondence with present or prospective customers and suppliers, advertising materials,
`software programs, and telephone exchange numbers identified with the Business and any right,
`title and interest of Seller in and to those items described on Schedule 1.1.3 attached hereto and
`incorporated herein by this reference (collectively, the "Intangible Property"). As used in this
`Agreement, Intangible Property shall in all events exclude(i) any materials containing privileged
`communications or information about employees, disclosure of which would violate an
`employee’s reasonable expectation of privacy and any other materials which are subject to
`attorney-client or any other privilege, and (ii) any software or other item of intangible property
`held by Seller pursuant to a license or other contract.
`
`1.1.4 Governmental Permits. To the extent transferable and assignable,
`Seller’s interest in all licenses, certificates of occupancy, permits, registrations, certificates of
`public convenience and necessity, approvals, licenses, easements, authorizations and operating
`rights issued or granted by any governmental or similar authority having jurisdiction over the
`Business to the extent relating exclusively to the operation of the Business, including, without
`limitation, those described on Schedule 1.1.4 attached hereto and incorporated herein by this
`reference (collectively, the "Permits and Licenses").
`
`1.2 (cid:9)
`Excluded Assets. Notwithstanding anything to the contrary in this
`Agreement, the Property shall be limited to the items identified or described in Section 1.1 above
`and shall in any event exclude all of the following (collectively, the "Excluded Assets"):
`(i)
`those items excluded pursuant to the provisions of Section 1.1 above; (ii) Seller’s rights under
`this Agreement and all cash and non-cash consideration payable or deliverable to Seller pursuant
`to the terms and provisions hereof, (iii) all cash deposits and prepaid items relating to or arising
`in connection with the operation of the Business; (iv) all cash and cash equivalents (including
`checking account balances, certificates of deposit and other time deposits and petty cash) and
`marketable and other securities relating to or arising in connection with the operation of the
`Business, (v) all tax refunds, rebates, credits and similar items relating to or arising out of the
`operation of the Business and to any period, or portion of any period, on or prior to the Closing
`Date; (vi) insurance proceeds, claims and causes of action with respect to or arising in
`connection with (A) any lease, license, contract or other agreement of Seller which is not
`assigned to Buyer at the Closing, or (B) any item of tangible or intangible property not acquired
`by Buyer at the Closing; (v) all securities, whether capital stock or debt, of Seller or any other
`entity; (vi) all tax records, minute books, stock transfer books and corporate seal of Seller; (vii)
`any letters of credit or similar financial accommodations issued to any third party(ies) for the
`account of Seller and any collateral therefor and other collateral deposits and prepaid items
`associated with the Property; (viii) all rights, claims and causes of action of Seller against any
`third party whatsoever, including, without limitation, current or former officers, directors,
`employees, members, principals, agents, and representatives of Seller, (ix) all preference or
`avoidance claims and actions of the Seller, including, without limitation, any such claims and
`actions arising under Sections 544, 547, 548, 549, and 550 of the Bankruptcy Code; (x) all other
`rights, claims and causes of action of Seller heretofore asserted or which may hereafter be
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`{* 12
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`asserted, and (xi) those additional assets, if any, listed on Schedule 1.2(xi) attached hereto and
`incorporated herein by this reference.
`
`Instruments of Transfer. The sale, assignment, transfer, conveyance and
`1.3 (cid:9)
`delivery of the Property to Buyer shall be made by deeds, assignments, bill of sale, and other
`instruments of assignment, transfer and conveyance provided for in Section 3 below and such
`other instruments as may reasonably be requested by Buyer to transfer, convey, assign and
`deliver the Property to Buyer, but in all events only to the extent that the same do not impose any
`monetary obligations upon Seller or in any other respect increase in any material way the
`burdens imposed by the other provisions of this Agreement upon Seller.
`
`2. Consideration.
`
`2.1 (cid:9)
`
`Purchase Price.
`
`2.1. 1. The cash consideration to be paid by Buyer to Seller for the Property (the
`"Purchase Price") shall be an amount equal to
` Million Dollars
`($,000,000), plus an amount equal to the Deposit.
`
`2.1.2 The Purchase Price shall be paid as follows:
`
`(a) (cid:9)
`Concurrently with the mutual execution and delivery of this
`Agreement (the date of such mutual execution and delivery is sometimes referred to herein as the
`"Execution Date"), Buyer shall deposit into an escrow (the "Escrow") with an escrow agent
`(the "Escrow Holder") reasonably designated by Seller an amount equal to 10% of the Purchase
`Price (the "Deposit") in immediately available, good funds (funds delivered in this manner are
`referred to herein as "Good Funds"), pursuant to joint escrow instructions to be delivered to the
`Escrow Holder on or before the Execution Date. In turn, the Escrow Holder shall immediately
`deposit the Deposit into an interest-bearing account. The Deposit shall become nonrefundable
`upon a termination of the transaction contemplated by this Agreement by reason of Buyer’s
`default of any obligation hereunder (a "Buyer Default Termination"), it being agreed that
`Seller shall not have the right to so terminate this Agreement unless Buyer has failed to cure the
`applicable default within five (5) days following its receipt of written notice thereof from Seller.
`At the Closing, the Deposit (and any interest accrued thereon) shall be credited and applied
`toward payment of the Purchase Price. In the event the Deposit becomes nonrefundable by
`reason of a Buyer Default Termination, Escrow Holder shall immediately disburse the Deposit
`and all interest accrued thereon to Seller to be retained by Seller for its own account. In addition,
`upon any default of this Agreement by Buyer, Seller shall have the right to seek specific
`performance of this Agreement and all of Buyer’s obligations hereunder. If the transactions
`contemplated herein terminate by reason of (A) Seller’s material default under this Agreement, it
`being agreed that Buyer shall not have the right to so terminate this Agreement unless Seller has
`failed to cure the applicable default within five (5) days following their receipt of written notice
`thereof from Buyer, or (B) the failure of a condition to Buyer’s obligations hereunder, the
`Escrow Holder shall return to Buyer the Deposit (together with all interest accrued thereon), but
`less Buyer’s one-half share of the Escrow Holder’s escrow fees and charges.
`
`{*}3
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`(cid:9)
`(cid:9)
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`(b) (cid:9)
`On the Closing Date, Buyer shall (A) cause the Escrow Holder to
`deliver the Deposit (together with all accrued interest thereon) to Seller, and (B) pay and deliver,
`in Good Funds, the balance of the Purchase Price to Seller.
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`{*}4
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`2.2 (cid:9)
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`Assumed Liabilities, Environmental Release and Indemnification.
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`2.2.1. Effective as of the Closing Date, Buyer shall assume all the following
`liabilities and obligations of Seller: (i) all obligations of Seller now existing or hereafter arising
`or accruing under the Real Property Lease, (ii) all cure obligations required to be paid pursuant
`to the Approval Order as a condition to Seller’s assumption and assignment of the Real Property
`Lease, and (iii) with respect to any such additional liabilities and obligations as may be set forth
`or described on Schedule 2.2.1-(vii) hereto (collectively, the "Assumed Liabilities").
`
`2.2.2. Buyer and anyone claiming by, through or under Buyer hereby waives
`any right to recover from and fully and irrevocably releases Seller and all of its respective
`employees, officers, directors, representatives, agents, servants, attorneys, affiliates, parent,
`subsidiaries, successors and assigns, and all persons, firms, corporations and organizations in its
`behalf (collectively, "Released Parties") of and from any and all claims, responsibility and/or
`liability that it or they may now have or hereafter acquire against any of the Released Parties for
`any costs, loss, liability, damage, expenses, demand, action or cause of action arising from or
`related to the environmental condition or any environmental matters affecting the real property
`which is the subject of the Real Property Lease, including, without limitation, geologic
`conditions and subsurface soil and water conditions. This release includes claims of which
`Buyer is presently unaware or which Buyer does not presently suspect to exist which, if known
`by Buyer, would materially affect Buyer’s release to Seller. In this connection and to the extent
`permitted by law, Buyer hereby agrees, represents and warrants that Buyer realizes and
`acknowledges that factual matters now unknown to it may have given or may hereafter give rise
`to causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses
`relating to the environmental condition of or environmental matters affecting the real property
`which is the subject of the Real Property Lease, including, without limitation, geologic
`conditions and subsurface soil and water conditions, which are presently unknown, unanticipated
`and unsuspected, and Buyer further agrees, represents and warrants that the waivers and releases
`herein have been negotiated and agreed upon in light of that realization and that Buyer
`nevertheless hereby intends to release, discharge and acquit the Released Parties from any such
`unknown causes of action, claims, demands, debts, controversies, damages, costs, losses and
`expenses relating to or arising in connection with the environmental condition of or
`environmental matters affecting the real property which is the subject of the Real Property Lease
`(including, without limitation, geologic conditions and subsurface soil and water conditions).
`
`2.2.3. In addition to the assumption of liability set forth in Section 2.2.1 above
`and the release in favor of the Seller and other Released Parties set forth in Section 2.2.2 above,
`from and after the Closing Date, Buyer shall indemnify, defend (with counsel satisfactory to
`Seller), protect and save and hold the Released Parties harmless of, from and against any and all
`costs, loss, liability, damages, expenses (including, without limitation, all court costs and
`reasonable attorneys’ fees), claims, demands, fines, penalties, violations, actions, proceedings,
`liens, or causes of action ("Losses") arising from or in any way relating to the environmental
`condition of the real property which is the subject of the Real Property Lease, or any portion
`thereof, or any Hazardous Substances (as defined below) which are present in, on, at, about,
`around or under the real property which is the subject of the Real Property Lease, or any portion
`thereof, as of the Closing, including, without limitation, any Losses imposed or arising under
`
`{*}5
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`CERCLA, the RCRA (both as defined below) or any other applicable federal, state, or local law
`or regulation. For purposes of this Agreement, "Hazardous Substances" means any hazardous,
`toxic or dangerous waste, substance or material, pollutant or contaminant, as defined for
`purposes of the Comprehensive Environmental Response, Compensation and Liability Act of
`1980 (42 U.S.C. Section 6901 et seq.), as amended ("CERCLA"), or the Resource Conservation
`and Recovery Act (42 U.S.C. Sections 6901 et seq.), as amended ("RCRA"), or any substance
`which contains gasoline, diesel fuel or other petroleum hydrocarbons, or polychlorinated
`biphenyls.
`
`2.3 (cid:9)
`Purchase Price Allocation. Not later than five (5) days prior to the Closing
`Date, Buyer shall prepare and deliver to Seller for its review and consideration a schedule (the
`"Allocation Schedule") allocating the Purchase Price among the various assets comprising the
`Property in accordance with Treasury Regulation 1.1060-1 (or any comparable provisions of
`state or local tax law) or any successor provision. If Seller disagrees with or raises objections to
`the Allocation Schedule, Buyer and Seller will negotiate in good faith to resolve such objections.
`If the Parties are able to agree upon the allocation of the Purchase Price, Buyer and Seller shall
`report and file all tax returns (including any amended tax returns and claims for refund)
`consistent with such mutually agreed Purchase Price allocation, and shall take no position
`contrary thereto or inconsistent therewith (including in any audits or examinations by any taxing
`authority or any other proceedings). Buyer and Seller shall file or cause to be filed any and all
`forms (including U.S. Internal Revenue Service Form 8594), statements and schedules with
`respect to such allocation, including any required amendments to such forms. If, on the other
`hand, the Parties are unable mutually to agree upon the manner in which the Purchase Price
`should be allocated, Buyer and Seller shall be free to make their own respective allocations of
`the Purchase Price for tax purposes.
`
`3. Closing Transactions.
`
`3.1 (cid:9)
`Closing Conference. The Closing of the transactions provided for herein
`(the "Closing") shall take place at such place or places as the Parties may mutually agree upon.
`
`3.2 (cid:9)
`Closing Date. The Closing shall be held upon the earlier to occur of (i) the
`second (2’’) business day following the satisfaction of the last of the conditions set forth in
`Sections 4.1 and 4.2 below, and (ii) the date which is days following the Execution Date
`(the "Outside Date"); provided, however, in the event the conditions to Closing have not been
`satisfied or waived by the Outside Date, then any Party who is not in default hereunder may
`terminate this Agreement. Alternatively, the Parties may mutually agree to an extended Closing
`Date. Until this Agreement is either terminated or the Parties have agreed upon an extended
`Closing Date, the Parties shall diligently continue to work to satisfy all conditions to Closing and
`the transaction contemplated herein shall close as soon as such conditions are satisfied or
`waived.
`
`3.3 (cid:9)
`Seller’ Deliveries to Buyer at Closing. On the Closing Date, Seller shall
`make the following deliveries to Buyer:
`
`{*}6
`
`(cid:9)
`(cid:9)
`(cid:9)
`(cid:9)
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`3.3.1 An Assignment and Assumption of Lease substantially in the form
`and content attached as Exhibit "A" hereto, duly executed by Seller pursuant to which Seller
`shall assign to Buyer Seller’s interest in the Lease (the "Assignment of Lease").
`
`3.3.2 A Bill of Sale and Assignment, duly executed by Seller in the form
`and on the terms of the bill of sale attached hereto as Exhibit "B," pursuant to which Seller
`transfers and assigns to Buyer Seller’s right, title and interest in and to the Personal Property and
`the Permits and Licenses (the "Bill of Sale").
`
`3.3.3 A counterpart Assignment of Intangible Property, duly executed by
`Seller, in the form and content of the assignment of intangible property attached as Exhibit "C"
`hereto, pursuant to which Seller assigns to Buyer Seller’s interest, if any, in and to the Intangible
`Property (the "Assignment of Intangible Property").
`
`3.3.4 Any such other documents, funds or other things reasonably
`contemplated by this Agreement to be delivered by Seller to Buyer at the Closing.
`
`3.4 (cid:9)
`Buyer’s Deliveries to Seller at Closing. On the Closing Date, Buyer shall
`make or cause the following deliveries to Seller:
`
`3.4.1 Payment of the Purchase Price.
`
`3.4.2 A counterpart of the Assignment of Lease, duly-executed by
`
`Buyer.
`
`3.4.3 Any such other documents, funds or other things reasonably
`contemplated by this Agreement to be delivered by Buyer to Seller at the Closing.
`
`3.5 (cid:9)
`Prorations. (cid:9)
`Rent, current taxes, utilities and other items of expense
`(including, without limitation, any prepaid insurance, maintenance, tax or common area or like
`payments under the Real Property Lease) relating to or attributable to the Property shall be
`prorated between Seller and Buyer as of the Closing Date. All liabilities and obligations due in
`respect of periods prior to or as of the Closing Date shall be paid in full or otherwise satisfied by
`Seller and all liabilities and obligations due in respect of periods after the Closing Date shall be
`paid in full or otherwise satisfied by Buyer. Rent shall be prorated on the basis of a thirty (30)
`day month.
`
`3.6 (cid:9)
`Sales, Use and Other Taxes. Any sales, purchase, transfer, stamp,
`documentary stamp, use or similar taxes under the laws of the states in which any portion of the
`Property is located, or any subdivision of any such state, or under any federal law or the laws or
`regulations of any federal agency or authority, which may be payable by reason of the sale or
`transfer of the Property under this Agreement or the transactions contemplated herein shall be
`borne and paid by Buyer.
`
`3.7 (cid:9)
`Possession. Right to possession of the Property shall transfer to Buyer on
`the Closing Date. Seller shall transfer and deliver to Buyer on the Closing Date such keys, locks
`
`{*}7
`
`(cid:9)
`(cid:9)
`(cid:9)
`(cid:9)
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`and safe combinations and other similar items as Buyer may reasonably require to obtain
`occupation and control of the Property, and shall also make available to Buyer at its then existing
`locations the originals of all documents in Seller’ actual possession that are required to be
`transferred to Buyer by this Agreement.
`
`4. Conditions Precedent to Closing.
`
`4.1 (cid:9)
`Conditions to Seller’s Obligations. Seller’s obligation to make the
`deliveries required of Seller at the Closing Date and otherwise consummate the transaction
`contemplated herein shall be subject to the satisfaction or waiver by Seller of each of the
`following conditions:
`
`4.1.1 All of the representations and warranties of Buyer contained herein
`shall continue to be true and correct at the Closing in all material respects.
`
`of Lease.
`
`4.1.2 Buyer shall have executed and delivered to Seller the Assignment
`
`4.1.3 Buyer shall have delivered, or shall be prepared to deliver to Seller
`at the Closing, all cash and other documents required of Buyer to be delivered at the Closing.
`
`4.1.4 Buyer shall have delivered to Seller appropriate evidence of all
`necessary entity action by Buyer in connection with the transactions contemplated hereby,
`including, without limitation: (i) certified copies of resolutions duly adopted by Buyer’s
`approving the transactions contemplated by this Agreement and authorizing the
`execution, delivery, and performance by Buyer of this Agreement; and (ii) a certificate as to the
`incumbency of those
` of Buyer executing this Agreement and any instrument or
`other document delivered in connection with the transactions contemplated by this Agreement.
`
`4.1.5 No action, suit or other proceedings shall be pending before any
`court, tribunal or governmental authority seeking or threatening to restrain or prohibit the
`consummation of the transactions contemplated by this Agreement, or seeking to obtain
`substantial damages in respect thereof, or involving a claim that consummation thereof would
`result in the violation of any law, decree or regulation of any governmental authority having
`appropriate jurisdiction.
`
`4.1.6 Buyer shall have substantially performed or tendered performance
`of each and every material covenant on Buyer’s part to be performed which, by its terms, is
`required to be performed at or before the Closing.
`
`4.1.7 The Bankruptcy Court shall have entered the Approval Order and
`Procedures Order in accordance with Sections 8(a) and 8(b) below and the Approval Order shall
`not have been stayed as of the Closing Date.
`
`{*}8
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`4.2 (cid:9)
`Conditions to Buyer’s Obligations. Buyer’s obligation to make the
`deliveries required of Buyer at the Closing and otherwise consummate the transaction
`contemplated herein shall be subject to the satisfaction or waiver by Buyer of each of the
`following conditions:
`
`4.2.1 Seller shall have substantially performed or tendered performance
`of each and every covenant on Seller’s part to be performed which, by its terms, is required to be
`performed or capable of performance at or before the Closing.
`
`4.2.2 All of the representations and warranties of Seller contained herein
`shall continue to be true and correct at the Closing in all material respects.
`
`4.2.3 Seller shall have executed and be prepared to deliver to Buyer the
`Assignment of Lease, the Bill of Sale, and the Assignment of Intangible Property.
`
`4.2.4 Seller shall have delivered, or shall be prepared to deliver to Buyer
`at the Closing, all other documents required of Seller to be delivered at the Closing.
`
`4.2.5 No action, suit or other proceedings shall be pending before any
`court, tribunal or governmental authority seeking or threatening to restrain or prohibit the
`consummation of the transactions contemplated by this Agreement, or seeking to obtain
`substantial damages in respect thereof, or involving a claim that consummation thereof would
`result in the violation of any law, decree or regulation of any governmental authority having
`appropriate jurisdiction.
`
`4.2.6 The Bankruptcy Court shall have entered the Approval Order and
`Procedures Order in accordance with Sections 8(a) and 8(b) below and the Approval Order shall
`not have been stayed as of the Closing Date.
`
`Any waiver of a condition shall be effective only if such waiver is stated in writing and signed by
`the waiving Party; provided, however, that the consent of a Party to the Closing shall constitute a
`waiver by such Party of any conditions to Closing not satisfied as of the Closing Date.
`
`5. Seller’s Representations and Warranties. Seller hereby makes the following
`representations and warranties to Buyer:
`
`5.1 (cid:9)
`Organization, Standing and Power. Seller is duly organized, validly
`existing and in good standing under the laws of the states of its respective organization set forth
`in the preamble to this Agreement. Seller has all requisite entity power and authority to own,
`lease and, subject to the provisions of the Bankruptcy Code applicable to debtors in possession,
`operate its properties, to carry on Seller’s business as now being conducted. Subject to entry of
`the Approval Order, Seller has the power and authority to execute, deliver and perform this
`Agreement and all writings relating hereto.
`
`5.2 (cid:9)
`Validity and Execution. This Agreement has been duly executed and
`delivered by Seller and, upon entry of the Approval Order, will constitute the valid and binding
`
`{*}9
`
`(cid:9)
`(cid:9)
`(cid:9)
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`obligation of Seller enforceable against it in accordance with its terms, except as may be limited
`by any bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other laws
`(whether statutory, regulatory or decisional), now or hereafter in effect, relating to or affecting
`the rights of creditors generally or by equitable principles (regardless of whether considered in a
`proceeding at law or in equity).
`
`No Conflict. Subject to the entry of the Approval Order, the
`5.3 (cid:9)
`consummation of the transactions herein contemplated, and the performance of, fulfillment of
`and compliance with the terms and conditions hereof by Seller do not and will not: (i) conflict
`with or result in a breach of the articles of incorporation, by-laws or operating agreement, as
`applicable, of Seller; (ii) violate any statute, law, rule or regulation, or any order, writ, injunction
`or decree of any court or governmental authority, or (iii) violate or conflict with or constitute a
`default under any agreement, instrument or writing of any nature to which Seller is a Party or by
`which Buyer or its assets or properties may be bound.
`
`6. Buyer’s Warranties and Representations. In addition to the representations and
`warranties contained elsewhere in this Agreement, Buyer hereby makes the following
`representations and warranties to Seller:
`
`6.1 (cid:9)
`Organization, Standing and Power. Buyer is a corporation duly organized,
`validly existing and in good standing under the laws of
`. Buyer has all requisite
`entity power and authority to own, lease and operate its properties, to carry on its business as
`now being conducted and to execute, deliver and perform this Agreement and all writings
`relating hereto.
`
`6.2 (cid:9)
`No Conflict. The execution, delivery and performance of this Agreement
`and all writings relating hereto by Buyer have been duly and validly authorized. The execution
`and delivery of this Agreement, the consummation of the transactions herein contemplated, and
`the performance of, fulfillment of and compliance with the terms and conditions hereof by Buyer
`do not and will not: (i) conflict with or result in a breach of the articles of incorporation or by-
`laws of Buyer or, if applicable, other organizational documents or agreements of Buyer; (ii)
`violate any statute, law, rule or regulation, or any order, writ, injunction or decree of any court or
`governmental authority; or (iii) violate or conflict with or constitute a default under any
`agreement, instrument or writing of any nature to which Buyer is a Party or by which Buyer or
`its assets or properties may be bound.
`
`7. "AS IS" Transaction. Buyer hereby acknowledges and agrees that, except only as
`provided in Section 5 above, Seller makes no representations or warranties whatsoever, express
`or implied, with respect to any matter relating to the Property (including, without limitation,
`income to be derived or expenses to be incurred in connection with the Property, the physical
`condition of the Personal Property, the environmental condition or other matter relating to the
`physical condition of any real property or improvements which are the subject of the Real
`Property Lease, the zoning of the real property or improvements which are the subject of the
`Real Property Lease, the value of the Property (or any portion thereof), the transferability of the
`Property or any portion thereof, the terms, amount, validity, collectibility or enforceability of the
`Accounts Receivable, the merchantability or fitness of the Personal Property or any other portion
`
`{*}1O
`
`(cid:9)
`(cid:9)
`(cid:9)
`

`

`Case 12-13262-CTG Doc 558-2 Filed 05/07/13 Page 12 of 29
`
`of the Property for any particular purpose, whether the assignment of the Real Property Lease
`without the consent of the counterparty thereto would constitute a breach or default under such
`Real Property Lease). Without in any way limiting the foregoing, Seller hereby disclaims any
`warranty (express or implied) of merchantability or fitness for any particular purpose as to any
`portion of the Property. Buyer further acknowledges that (i) none of the assets comprising the
`Property are part of a currently operating business, as Seller ceased operating the Business on or
`about [_1, and (ii) Buyer has conducted an independent inspection and investigation
`of the physical condition of all portions the Property and all such other matters relating to or
`affecting or comprising the Property (including, without limitation, those matters, if any,
`disclosed to Buyer pursuant to Schedule 7 attached hereto and incorporated herein by this
`reference) as Buyer deemed necessary or appropriate and that in proceeding with its acquisition
`of the Property, Buyer is doing so based solely upon such independent inspections and
`investigations. Accordingly, Buyer will accept the Property at the Closing "AS IS, "WHERE
`IS," and "WITH ALL FAULTS."
`
`8. (cid:9)
`
`Bankruptcy Court Approvals.
`
`(a) (cid:9)
`Promptly following the Execution Date (and in no event later than three
`(3) business days thereafter), Seller will make a motion (the "Sale Motion") for an order (the
`"Approval Order") from the Bankruptcy Court which (i) approves the sale of the Property to
`Buyer on the terms and conditions set forth in this Agreement and authorizes the Seller to
`proceed with this transaction, (ii) includes a specific finding that Buyer is a good faith Buyer of
`the Property, (iii) orders Buyer to pay, concurrently with the Closing and as a condition to
`Seller’s assumption and assignment thereof, all cure amounts owing to the counterparties to the
`Leases and Contracts, and (iv) states that the sale of the Property to Buyer shall be free and clear
`of all liens, claims, interests and encumbrances whatsoever (other than the lien of cu