EXHIBIT 10.6
Asset
Purchase Agreement
(Reno/Sparks)
This ASSET PURCHASE AGREEMENT (this
“ Agreement ”) is made and entered into as of
June 2, 2004 (the “ Effective Date ”) by and
between CROWN PACIFIC LIMITED PARTNERSHIP, a Delaware limited
partnership (“ Seller ”), Debtor-in-Possession
under Jointly Administered Case No. 03-11258-PHX-RJA (the “
Case ”) in the United States Bankruptcy Court for the
District of Arizona (the “ Bankruptcy Court ”)
filed on June 29, 2003 (the “ Petition Date ”)
under Chapter 11 of Title 11 of the United States Code (the “
Bankruptcy Code ”), and RENO LUMBER, a Nevada
corporation (“ Buyer ”).
Recitals :
A.
Seller owns and operates a
contractor supply business in Sparks, Nevada (the “
Business ”).
B.
Seller wishes to sell substantially
all assets associated with the Business to Buyer, and Buyer wishes
to purchase such assets from Seller, in each case on the terms and
conditions set forth in this Agreement.
Agreements
:
In consideration of the foregoing,
the mutual covenants of the parties set forth in this Agreement,
and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties, intending to be
legally bound, agree as follows:
1.
Purchase and Sale
.
1.1
Agreement to Purchase and
Sell . On the terms and
subject to the conditions set forth in this Agreement, Seller
agrees to sell, transfer, assign, convey, and deliver to Buyer, and
Buyer agrees to purchase from Seller, all of Seller’s right,
title, and interest as of the Closing Date in and to the following
assets (collectively, the “ Purchased Assets
”):
1.1.1.
Contracts
. To the
extent transferable, Seller’s right, title, and interest (i)
as lessee under those equipment leases and similar arrangements
listed on Schedule A-1 to this Agreement (the “
Personal Property Leases ”), and (ii) as a party to
those other contracts, licenses, agreements, and similar
arrangements listed on Schedule A-2 to this Agreement and
all purchase orders arising out of the operation of the Business
and outstanding as of the Closing Date, including, without
limitation, those purchase orders listed on Schedule A-3 to
be delivered at Closing (the “ Other Contracts
”);
1.1.2
.
Real Property
and Improvements . Seller’s right,
title and interest in and to: (a) the real property described in
the legal descriptions listed on Schedule A-4 to this
Agreement (“the “ Real Property ”), and
(b) all improvements located thereon (the “
Improvements ”);
1.1.3
.
Personal
Property . Those items of
equipment and tangible personal property owned by Seller and listed
on Schedule B-1 (buildings, machinery and equipment) and
Schedule B-2 (office furniture and equipment) to this
Agreement and any other tangible personal property acquired by
Seller after the Effective Date and prior to the Closing Date
exclusively in connection with the Business (the “
Personal Property ”);
1.1.4.
Intangible
Property . All intangible
personal property owned or held by Seller and used solely and
exclusively in connection with the Business, but in each case only
to the extent of Seller’s interest therein and only to the
extent transferable, together with the Books and Records (the
“ Intangible Property ”);
1.1.5
.
Receivables
. All
accounts receivable arising out of the operation of the Business
and outstanding as of the Closing Time (excluding accounts
receivable from other divisions of Seller) and, subject to the
provisions of Section 1.2, all causes of action relating thereto
(the “ Receivables ”); and
1
1.1.6
.
Inventory
. All
inventories of lumber, other wood products, and other products held
for resale by the Business, or in transit to the Business, or
otherwise prepaid, in the Ordinary Course of Business as of the
Closing Time, wherever located, including, without limitation,
those inventories or products in transit listed on Schedule
C to be delivered at Closing (the “ Inventory
”).
1.2
Excluded Assets
. Notwithstanding anything to
the contrary in this Agreement, the Purchased Assets shall not
include (collectively, the “ Excluded Assets ”)
(i) all cash and cash equivalents, (ii) any Personal Property Lease
or Other Contract that is terminated or expires prior to the
Closing Date in accordance with its terms or in the Ordinary Course
of Business, (iii) Seller’s rights under this Agreement and
to all cash and non-cash consideration payable or deliverable
hereunder, (iv) any and all rights to the use of the names
“Alliance Lumber” and “Crown Pacific,” (v)
all preference or avoidance claims and actions of Seller, including
any such claims or actions arising under Sections 544, 547, 548,
549, and 550 of the Bankruptcy Code, (vi) Inventory sold or
otherwise transferred by Seller in the Ordinary Course of Business
prior to the Closing Date, (vii) insurance proceeds, claims and
causes of action with respect to, or arising in connection with,
any Excluded Asset, and (viii) those items listed on Schedule
D to this Agreement.
2.
Purchase Price and Payment;
Assumption of Liabilities; Cure Costs .
2.1
Purchase Price
. In consideration of the
sale, transfer, and conveyance to Buyer of the Purchased Assets,
Buyer shall, at the Closing (i) pay to Seller cash in an amount
(the “ Purchase Price ”) equal to (x) the
Estimated Transaction Value, less (y) the Current Liabilities, less
(z) the pre-Petition Date Claims listed on Schedule E to
this Agreement; and (ii) assume the Assumed Liabilities. Not
less than two (2) Business Days prior to the anticipated Closing
Date, Buyer shall give Seller notice of the Estimated Transaction
Value as of the close of business on the Friday immediately prior
to the anticipated Closing Date. The Purchase Price shall be
adjusted after the Closing to reflect any difference between the
Estimated Transaction Value and the Actual Transaction Value, as
provided in Section 2.4. Notwithstanding the foregoing, in no
event shall Seller owe any amount to Buyer as a result of
Buyer’s acquisition of the Business.
2.2
Deposit Escrow
. Subject to the terms
and conditions of an escrow agreement (the “ Deposit
Escrow Agreement ”) entered into among Buyer, Seller and
the Deposit Escrow Agent (as defined below), substantially in the
form attached hereto as Exhibit A , on or prior to the
Effective Date, Buyer shall deliver to and deposit in trust with JP
Morgan Chase Bank or other similar escrow agent or company mutually
acceptable by written agreement between Buyer and Seller (the
“ Deposit Escrow Agent ”), the sum of Three
Hundred Fifty Thousand Dollars ($350,000) (the “
Deposit ”) in immediately available, good funds.
Upon receipt of the Deposit, the Deposit Escrow Agent shall
immediately deposit the Deposit into an account pursuant to the
Deposit Escrow Agreement. The Deposit Escrow Agent shall
return to Buyer the Deposit (and any interest accrued thereon) upon
the earlier of (A) Buyer’s termination of this Agreement
under Section 8.1.1 as a result of the failure of a condition to
Buyer’s obligations, as set forth in Section 4.2 (a “
Seller Default Termination ”), (B) Seller’s
termination of this Agreement at its election under Section 8.1.1
unless there has been a Buyer Default Termination, (C) mutual
termination of this Agreement under Section 8.1.2, or (D) pursuant
to Section 2.4.4. The Deposit Escrow Agent shall deliver the
Deposit (and any interest accrued thereon) to Seller upon the
earlier of (A) Seller’s termination of this Agreement under
Section 8.1.1 as a result of the failure of a condition to
Seller’s obligations set forth in Sections 4.1.1 or 4.1.2 (a
“ Buyer Default Termination ”) or (B) the
Closing. Promptly upon the occurrence of any of the events
described in the immediately preceding two sentences, Seller and
Buyer shall jointly instruct the Deposit Escrow Agent to release
the Deposit in accordance with this Section 2.2. The Deposit
Escrow Agent’s escrow fees and charges shall be paid one-half
by Seller and one-half by Buyer, in which respect the Seller and
the Buyer shall not be jointly liable since each shall only be
liable for its own part (one-half) of the said fees and
charges.
2.3
Payment of Purchase
Price . Buyer shall
pay the Purchase Price less the Deposit to Seller in United States
dollars by completed wire transfer of immediately available funds
on the Closing Date.
2.4
Transaction Value
Adjustment .
2.4.1.
Statement of
Transaction Value . Within five (5)
Business Days after the Closing Date, Buyer shall deliver the
Statement of Transaction Value to Seller.
2
2.4.2.
Objections
. Seller
shall have thirty (30) calendar days after the delivery of the
Statement of Transaction Value within which to give Buyer notice of
any objection to any amount set forth therein. Buyer shall,
and shall direct its employees to, cooperate with Seller, at no
expense to Seller, and provide Seller with access to all Books and
Records necessary, in reviewing the Statement of Transaction
Value. Any such notice shall identify the specific amounts to
which Seller objects and shall set forth with reasonable
specificity the basis for Seller’s objections. All
amounts set forth in the Statement of Transaction Value to which
Seller does not object as provided in this Section 2.4.2 shall
irrevocably be deemed approved by Seller.
2.4.3
.
Disputes
. If Seller
gives notice in accordance with Section 2.4.2 objecting to any
amounts set forth in the Statement of Transaction Value, then the
parties shall negotiate in good faith in an effort to resolve such
objections. If the parties are unable to resolve any such
objections within ten (10) Business Days after Seller’s
notice of objection is given, then the issues in dispute shall be
submitted to the Accountants for resolution. In such event, (i)
each party shall furnish to the Accountants such workpapers and
other documents and information relating to the disputed issues as
are in the possession or control of such party and shall be
afforded an opportunity to present to the Accountants the basis for
its view with respect to the disputed issues and to discuss the
determination of the disputed issues with the Accountants, (ii) the
determination by the Accountants shall be final and binding on the
parties, and (iii) Seller and Buyer shall each pay, and shall each
be liable only for, one-half of the fees and expenses of the
Accountants. Seller and Buyer shall direct the Accountants to use
all reasonable efforts to complete their determination of the
disputed issues within thirty (30) calendar days after they are
submitted to the Accountants.
2.4.4
.
Payments
. On the
third Business Day following (i) the expiration of the thirty (30)
calendar day period referred to in Section 2.4.2 if Seller fails to
give a notice of objection as provided therein, or (ii) the
resolution of any objections set forth in Seller’s notice
pursuant to Section 2.4.2, whether by agreement of the parties or
determination by the Accountants pursuant to Section 2.4.3, the
appropriate adjusting payment shall be made in accordance with this
Section 2.4.4. If the Actual Transaction Value, as determined
in accordance with this Section 2.4, as of the Closing Date is
greater than the Estimated Transaction Value, then Buyer shall pay
the Transaction Value Difference to Seller by wire transfer of
immediately available funds. If the Actual Transaction Value,
as determined in accordance with this Section 2.4, is less than the
Estimated Transaction Value, then Seller shall pay the Transaction
Value Difference directly to Buyer by wire transfer of immediately
available funds.
2.5
Cure Costs
. Buyer agrees to satisfy, as
and when due, all cure obligations due and owing under the
Contracts assumed by Buyer at the Closing which the Bankruptcy
Court orders to be paid as a condition to Seller’s assumption
and assignment to Buyer of the Contracts in accordance with Section
365 of the Bankruptcy Code or otherwise transferred. Prior to
the Closing Date, Buyer and Seller shall cooperate in good faith to
determine all such cure obligations.
3.
Pre-Closing Matters
.
3.1
Operation of Business
.
3.1.1.
Between the
Effective Date and the Closing Date, Seller shall:
(a)
Use commercially
reasonable efforts to conduct the Business and operate and maintain
the Purchased Assets in the Ordinary Course of
Business;
(b)
Not sell, lease,
or otherwise transfer or dispose of any material Purchased Assets,
or any interest therein, other than transfers and dispositions,
including the sale of lumber, other wood products, and other
products, made in the Ordinary Course of Business;
(c)
Not permit or
allow any material Purchased Assets to become subject to any
additional Lien (other than Permitted Encumbrances);
and
(d)
Use its
commercially reasonable efforts to maintain the relations and
goodwill with suppliers, customers, and others having business
relationships with Seller in connection with the
Business.
3
3.1.2.
Between the
Effective Date and the Closing Date, Operator shall perform all of
his operational and management functions in the Ordinary Course of
Business.
3.2
Access to Information
. Between the Effective Date
and the Closing Date, Seller shall, upon reasonable advance notice
from Buyer to Seller, (i) afford to Buyer and its Representatives
access (during normal business hours), in a manner so as not to
interfere with Seller’s normal operations and subject to
reasonable restrictions imposed by Seller, to all key employees and
to the Purchased Assets, including the Books and Records, and (ii)
cause its Representatives to furnish Buyer with such financial and
operating data and other information with respect to the Business
and the Purchased Assets as may be within Seller’s possession
or control and as Buyer may reasonably request. Buyer shall
have no right hereunder to conduct any environmental or other
assessment of the Property other than visual inspection and
document review. Buyer expressly acknowledges and agrees that
nothing in this Section 3.2 is intended to give rise to any
contingency to Buyer’s obligation to proceed with the
transactions contemplated herein.
3.3
Public Announcements
. Except as otherwise required
by applicable Legal Requirements, any public announcement or
similar publicity with respect to this Agreement or the
transactions herein contemplated shall be issued, if at all, only
with such contents, at such time, and in such manner as the parties
may mutually agree. If a party believes that it is required by
applicable Legal Requirements to make any such public announcement,
it shall first provide to the other party the content of the
proposed announcement, the reasons such announcement is required to
be made, and the time and place that the announcement will be
made.
3.4
Damage or Destruction
. In the event of any damage
to or destruction of a Purchased Asset (other than normal wear and
tear) (a “ Loss ”) between the Effective Date
and the Closing Date, (i) Buyer shall not be entitled to terminate
this transaction, and (ii) the Purchase Price shall be reduced by
an amount equal to the estimated cost to repair or restore the
Purchased Asset to substantially its condition immediately prior to
the occurrence of such Loss (to the extent, if any, that Seller has
not completed such repair or restoration). The estimated cost
to repair or restore the Purchased Asset to substantially its
condition immediately prior to the occurrence of such loss shall be
agreed to by Seller and Buyer or, if they are unable to agree,
shall be determined by an independent, qualified insurance adjuster
selected by the parties (or, if they are unable to agree on such
selection, one appointed by the Bankruptcy Court upon application
by either party). Seller shall be entitled to retain any
insurance proceeds paid or payable on account of such
Loss.
3.5
Bankruptcy Court
Approval . Promptly
following the Effective Date, Seller shall file a motion with the
Bankruptcy Court requesting, and shall thereafter use commercially
reasonable efforts to obtain, entry of an order (the “
Approval Order ”) which (i) approves the sale of the
Purchased Assets to Buyer on the terms and conditions set forth in
this Agreement and authorizes Seller to proceed with the
transactions herein contemplated, (ii) includes a specific finding
that Buyer is a good faith purchaser of the Purchased Assets and is
entitled to the protection afforded by Section 363(m) of the
Bankruptcy Code, (iii) states that the sale of the Purchased Assets
to Buyer shall be free and clear of all Liens whatsoever (except as
expressly provided in this Agreement), and (iv) approves
Seller’s assumption and assignment of the pre-Petition Date
Contracts pursuant to Section 365 of the Bankruptcy Code and orders
Buyer to pay any cure amounts payable to the other parties to such
Contracts as a condition to such assumption and
assignment.
3.6
Overbid Protection
. Seller shall not consider an
offer from a prospective purchaser who offers to bid for the
Purchased Assets at an auction with respect to the sale thereof
unless such prospective purchaser offers to purchase the Purchased
Assets for consideration that is at least One Hundred Thousand
Dollars and No Cents ($100,000) greater than the consideration set
forth in this Agreement (including, without limitation, all cash,
non-cash consideration and assumed liabilities).
4.
Conditions to Closing
.
4.1
Seller’s
Conditions .
Seller’s obligation to close this transaction shall be
subject to and contingent upon the satisfaction (or waiver by
Seller in its sole discretion) of each of the following
conditions:
4.1.1.
All
representations and warranties of Buyer set forth in this Agreement
(considered collectively) and each such representation and warranty
(considered individually) shall have been true and correct as
of
4
the Effective
Date and shall be true and correct in all material respects as of
the Closing Date, as if made on the Closing Date.
4.1.2.
All of the
covenants and obligations that Buyer is obligated to perform or
comply with pursuant to this Agreement prior to or at the Closing
(considered collectively) and each such covenant and obligation
(considered individually) shall have been performed and complied
with in all material respects.
4.1.3.
Buyer shall have
made the deliveries of documents and funds required to be made
pursuant to Section 5.3.
4.1.4.
As of the Closing
Date, there shall not be in effect any Legal Requirement or any
Order that prohibits the transfer of any material portion of the
Purchased Assets by Seller to Buyer.
4.1.5.
Since the
Effective Date, there shall not have been commenced or Threatened
against Seller or any Affiliate of Seller any Proceeding (i)
seeking material Damages or other material relief in connection
with any aspect of this transaction, or (ii) that could reasonably
be expected to have the effect of preventing or making illegal this
transaction.
4.1.6.
Neither the
consummation of this transaction nor the performance of
Seller’s obligations hereunder shall, directly or indirectly
(with or without notice, lapse of time, or both), contravene,
conflict with, result in a violation of, or cause Seller or any
Affiliate of Seller to suffer any material adverse consequence
under any applicable Legal Requirement or Order that has been
published, introduced, or otherwise proposed by or before any
Governmental Authority since the Effective Date.
4.1.7.
The Bankruptcy
Court shall have entered the Approval Order and such order shall
not have been stayed as of the Closing Date.
4.2
Buyer’s
Conditions .
Buyer’s obligation to close this transaction shall be subject
to and contingent upon the satisfaction (or waiver by Buyer in its
sole discretion) of each of the following conditions:
4.2.1.
All
representations and warranties of Seller set forth in this
Agreement (considered collectively) and each such representation
and warranty (considered individually) shall have been true and
correct in all material respects as of the Effective Date and shall
be true and correct in all material respects as of the Closing
Date, as if made on the Closing Date.
4.2.2.
All of the
covenants and obligations that Seller is obligated to perform or
comply with pursuant to this Agreement prior to or at the Closing
(considered collectively) and each such covenant and obligation
(considered individually) shall have been performed and complied
with in all material respects.
4.2.3.
Seller shall have
made the deliveries of documents required to be made pursuant to
Section 5.2.1.
4.2.4.
Since the
Effective Date, there shall not have been commenced or Threatened
against Buyer or any Affiliate of Buyer any Proceeding (i) seeking
material Damages or material other relief in connection with, any
aspect of this transaction, or (ii) that could reasonably be
expected to have the effect of preventing or making illegal this
transaction.
4.2.5.
Neither the
consummation of this transaction nor the performance of
Buyer’s obligations hereunder shall, directly or indirectly
(with or without notice, lapse of time, or both), contravene,
conflict with, result in a violation of, or cause Buyer or any
Affiliate of Buyer to suffer any material adverse consequence under
any applicable Legal Requirement or Order that has been published,
introduced, or otherwise proposed by or before any Governmental
Authority since the Effective Date.
4.2.6.
The Bankruptcy
Court shall have entered the Approval Order and such order shall
not have been stayed as of the Closing Date.
5
5.
Closing .
5.1
Time and Place of
Closing . The
Closing shall take place at the offices of Andrews Kurth LLP, 600
Travis, Suite 4200, Houston, Texas, or at such other location as
the parties may mutually agree. Subject to the provisions of
Section 8, the Closing shall take place commencing at a time and on
a date mutually acceptable to the parties within three (3) Business
Days after the later of (x) entry of the Approval Order or (y)
delivery of the notice specified in Section 2.1.
5.2
Seller’s Deliveries to
Buyer at Closing .
At the Closing, Seller shall deliver, or cause to be delivered, to
Buyer:
5.2.1.
A Bill of Sale,
substantially in the form of Exhibit B to this Agreement
(the “ Bill of Sale ”), conveying the Personal
Property and the Inventory to Buyer, duly executed by
Seller.
5.2.2.
An Assignment and
Assumption Agreement, substantially in the form of Exhibit C
to this Agreement (the “ Assignment and Assumption
Agreement ”), duly executed by Seller and providing for
(a) the assignment to Buyer of the Contracts, and (b) Buyer’s
performance and discharge of the Assumed Liabilities and
indemnification of Seller in respect thereof (including, without
limitation, indemnification in respect of any legal fees or other
costs incurred by Seller in exercising its right to
indemnity).
5.2.3.
A Special
warranty deed, substantially in the form of Exhibit D to
this Agreement (the “ Deed ”), duly executed by
Seller, in respect of the Real Property.
5.2.4.
Written
certification evidencing Seller’s satisfaction of all of
Seller’s covenants and obligations set forth in Sections
4.1.1 and 4.1.2.
5.3
Buyer’s Deliveries to
Seller at Closing .
At the Closing, Buyer shall deliver, or cause to be delivered, to
Seller:
5.3.1.
The Purchase
Price, less the Deposit (which shall be released to Seller,
together with all interest thereon, by the Deposit Escrow Agent),
by wire transfer of immediately available funds.
5.3.2.
The Assignment
and Assumption Agreement, duly executed by Buyer.
5.3.3.
The Bill of Sale,
duly executed by Buyer.
5.3.4.
Written
certification evidencing Buyer’s satisfaction of all of
Buyer’s covenants and obligations set forth in Sections 4.2.1
and 4.2.2.
5.3.5.
Appropriate
evidence of all necessary action by Buyer in connection with the
transactions contemplated hereby, including, without limitation:
(i) certified copies of resolutions duly adopted by Buyer’s
Board of Directors 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 officers of Buyer executing this Agreement and any
instrument or other document delivered in connection with the
transactions contemplated by this Agreement.
5.4
Taxes . In accordance with Section 1146(c) of
the Bankruptcy Code, the making or delivery of any instrument to
evidence, effectuate, or perfect the rights, transfers, and
conveyances contemplated by this Agreement shall be in
contemplation of a plan or plans of reorganization to be confirmed
in the Case and, as such, shall be free and clear of any and all
Taxes and any such instrument may, at the request of Buyer, contain
an endorsement to that effect. In the event that,
notwithstanding the foregoing, any Taxes are assessed on the
transfer of the Purchased Assets to Buyer, such Taxes shall be paid
by Buyer, and Buyer shall complete and file all returns associated
therewith.
5.5
Prorations
. Rent, current taxes and
other amounts due that relate or are attributable to the Business
and/or the Real Property and the Personal Property Leases shall be
prorated between Seller and Buyer as of
6
the Closing Date. All obligations due in
respect of periods on or prior to the Closing Date (other than the
Assumed Liabilities) shall be paid in full or otherwise satisfied
by Seller, and all obligations due in respect of periods after the
Closing Date (in addition to the Assumed Liabilities) shall be paid
in full or otherwise satisfied by Buyer. Rent shall be
prorated on the basis of a thirty (30) day month.
5.6
Possession
. Buyer shall be entitled to
possession of the Purchased Assets immediately upon the
Closing.
5.7
Closing Costs
. Buyer shall pay (i) any
recording fees with respect to the Deed, and (ii) if Buyer elects
to obtain title insurance with respect to the Real Property and the
Improvements, the premium for insurance, as well as for any
endorsements thereto that Buyer elects to obtain.
6.
Representations and
Warranties .
6.1
Seller’s Representations
and Warranties .
Seller represents and warrants to Buyer as follows:
6.1.1.
Organization
and Good Standing . Seller is a limited
partnership duly formed, validly existing, and in good standing
under the laws of the State of Delaware. Crown Management is a
limited partnership duly formed, validly existing, and in good
standing under the laws of the State of Delaware and is the sole
general partner of Seller.
6.1.2.
Authority; No
Conflict .
(a)
Upon obtaining
the Approval Order, this Agreement shall constitute the legal,
valid, and binding obligation of Seller, enforceable against Seller
in accordance with its terms. Upon their execution and delivery by
Seller at the Closing, each of the Seller Closing Documents will
constitute the legal, valid, and binding obligations of Seller,
enforceable against Seller in accordance with their respective
terms. Subject to obtaining the Approval Order and applicable
provisions of bankruptcy law, Seller has full partnership power,
authority, and capacity to execute and deliver this Agreement and
each of the Seller Closing Documents and to perform its obligations
hereunder and thereunder.
(b)
Upon obtaining
the Approval Order, neither the execution and delivery of this
Agreement, nor the performance of any of Seller’s obligations
hereunder, nor the consummation of the transactions herein
contemplated will, directly or indirectly (with or without notice,
lapse of time, or both), (i) contravene or result in a violation of
any provision of Seller’s Organizational Documents or any
resolution adopted by the Board of Control, by the general or
limited partners of Crown Management, or by the limited partners of
Seller; (ii) contravene or result in a violation of any Legal
Requirement or any Order to which Seller or any of the Purchased
Assets is subject; or (iii) contravene or result in a violation or
breach of any provision of, or give any Person the right to declare
a default or exercise any remedy under, any agreement, instrument,
or writing of any nature to which Seller is a party or by which
Seller or any of its assets or properties is bound.
6.1.3.
Certain
Proceedings . Except for the Case, no
Proceeding is pending or, to Seller’s Knowledge, has been
Threatened, against Seller that challenges, or could reasonably be
expected to have the effect of preventing, making illegal, or
otherwise materially interfering with, the transactions herein
contemplated.
6.2
Buyer’s Representations and
Warranties . Buyer
represents and warr
|
