EXHIBIT 10.9
Asset
Purchase Agreement
(alliance)
This ASSET PURCHASE AGREEMENT (this
“ Agreement ”) is made and entered into as of
June 21, 2004 (the “ Effective Date ”) by and
among CROWN PACIFIC PARTNERS L.P., a Delaware limited partnership
(“ CPPLP ”), CROWN PACIFIC LIMITED PARTNERSHIP,
a Delaware limited partnership (collectively with CPPLP, the
“ Seller ”), Debtors-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 ALC ACQUISITION LLC, an Arizona limited
liability company (the “ Buyer ”).
Recitals :
A.
Seller owns and operates contractor
supply businesses in Queen Creek, Scottsdale and Glendale, Arizona
(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 real property leases listed on Schedule
A-1 to this Agreement (the “ Real Property Leases
”), (ii) as lessee under those equipment leases and similar
arrangements listed on Schedule A-2 to this Agreement (the
“ Personal Property Leases ”), and (iii) as a
party to those other contracts, licenses, agreements, and similar
arrangements listed on Schedule A-3 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-4 to
be delivered at Closing (the “ Other Contracts
”);
1.1.2
.
Real Property
and Improvements . Seller’s right,
title and interest in and to all improvements located on the Leased
Real Property (the “ Improvements
”);
1.1.3
.
Personal
Property . All tangible personal
property and items of equipment used exclusively in the operation
of the Business which is owned by Seller and located on the Real
Property on the Closing Date, including, without limitation, those
items listed on Schedule B 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,
specifically including the right to use of the trade name
“Alliance” and “Alliance Lumber” within the
State of Arizona (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) except such accounts
receivable which, as of the Closing Date, have been outstanding for
more than ninety days (such accounts receivable shall be deemed to
have arisen on the date an invoice for the receivable was first
sent to the customer) and, subject to the provisions of Section
1.2, all causes of action relating thereto (the “
Receivables ”); and
1.1.6
.
Inventory
. (i) 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; and (ii) all fuel, spare parts,
and supplies owned by Seller and located at any of the facilities
operated by the Business as of Closing Time (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 name
“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, (viii) those items
listed on Schedule D to this Agreement, and (ix) any
pre-Petition Date Personal Property Leases and Other Contracts
which are neither necessary nor useful for the conduct of the
Business; provided , that Buyer has notified Seller in
writing of its decision to exclude such Contracts prior to the
earlier of (x) the commencement of an auction with respect to the
Purchased Assets is scheduled to be held or (y) the commencement of
a sale hearing is scheduled to be held with respect to the sale of
the Purchased Assets to Buyer.
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 (w) the
Estimated Net Book Value, less (x) the Current Liabilities, less
(y) the aggregate amount of the pre-Petition Date Claims set forth
on Schedule E to this Agreement, plus (z) One Million
Dollars ($1,000,000); and (ii) assume the Assumed
Liabilities. Not less than two (2) Business Days prior to the
anticipated Closing Date, Seller shall give Buyer notice of the
Estimated Net Book Value. The Purchase Price shall be
adjusted after the Closing to reflect any difference between the
Estimated Net Book Value and the Actual Net Book Value, as provided
in Section 2.4.
2.2
Deposit Escrow
. Subject to the terms
and conditions of an escrow agreement entered into among Buyer,
Seller and the Deposit Escrow Agent (as defined below),
substantially in the form attached hereto as Exhibit A (the
“ Deposit Escrow Agreement ”), 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 Two
Million Dollars ($2,000,000.00) (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, (D) Buyer’s or Seller’s
termination of this Agreement under Section 8.1.3 unless there has
been a Buyer Default Termination, (E) pursuant to Section 2.4.5, or
(F) the failure of the Bankruptcy Court to enter an unstayed
Approval Order because of the acceptance of a higher bid. 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 ”), (B) pursuant to Section 2.4.5 or (C)
Seller’s termination of this
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Agreement under Section 8.1.3 if there has been
a Buyer Default Termination. Promptly upon the occurrence of
any of the events described in the immediately preceding two
sentences, CPPLP 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
Net Book Value
.
2.4.1.
Inventory
Count . Promptly following
the Closing, Representatives of Seller and Buyer shall jointly
conduct a physical count of the Inventory as of the Closing
Time.
2.4.2.
Statement of
Actual Net Book Value . Within twenty (20)
Business Days after the Closing Date, Seller shall deliver the
Statement of Actual Net Book Value to Buyer. 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, for the preparation of the Statement of Actual Net Book
Value.
2.4.3
.
Objections
. Buyer
shall have ten (10) Business Days after the delivery of the
Statement of Actual Net Book Value within which to give Seller
notice of any objection to any amount set forth therein. Any
such notice shall identify the specific amounts to which Buyer
objects and shall set forth with reasonable specificity the basis
for Buyer’s objections. All amounts set forth in the
Statement of Actual Net Book Value to which Buyer does not object
as provided in this Section 2.4.3 shall irrevocably be deemed
approved by Buyer.
2.4.4
.
Disputes
. If Buyer
gives notice in accordance with Section 2.4.3 objecting to any
amounts set forth in the Statement of Actual Net Book 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 Buyer’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.
2.4.5.
Payments
. On the
third Business Day following (i) the expiration of the ten (10)
Business Day period referred to in Section 2.4.3 if Buyer fails to
give a notice of objection as provided therein, or (ii) the
resolution of any objections set forth in Buyer’s notice
pursuant to Section 2.4.3, whether by agreement of the parties or
determination by the Accountants pursuant to Section 2.4.4, the
Deposit shall be released to Buyer or Seller, as the case may be,
in accordance with this Section 2.4.5.
If the Actual Net Book Value, as
determined in accordance with this Section 2.4, is greater than the
Estimated Net Book Value, then (i) Buyer and Seller shall jointly
instruct the Deposit Escrow Agent to release to Seller, by wire
transfer, the amount as may be in the Deposit escrow account and
(ii) Buyer shall pay directly to Seller, on the same date as the
amount in the Deposit escrow account is released pursuant to this
sentence, an amount, if any, equal to the excess of the Net Book
Value Difference over the Deposit.
If the Actual Net Book Value as
determined in accordance with this Section 2.4, is less than the
Estimated Net Book Value, then (i) Buyer and Seller shall jointly
instruct the Deposit Escrow Agent to release (x) to Buyer, by wire
transfer, an amount equal to the Net Book Value Difference or such
lesser amount as may be in the Deposit
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escrow account, and (y) to Seller, by wire
transfer, any amount remaining in the Deposit escrow account after
payment of the foregoing and (ii) Seller shall pay directly to
Buyer, on the same date as the Deposit is released pursuant to this
sentence, an amount equal to the excess of the Net Book Value
Difference over the Deposit.
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. As of
the Effective Date, to Seller’s Knowledge and to
Buyer’s Knowledge, there are no such cure obligations.
Prior to the Closing Date, Buyer and Seller shall cooperate in good
faith to determine all such cure obligations. Buyer shall
have no obligation to cure any such obligations with respect to the
Contracts, if any, that are excluded pursuant to Section 1.2(ix) or
which are not otherwise listed on Schedules A-1, A-2 or
A-3.
2.6
Claims Waiver by Buyer
. Buyer (i) shall acquire all
pre-Petition Date Claims in favor of Persons who have accounts
payable that are set forth on Schedule E to this Agreement
and (ii) hereby waives and releases Seller, Crown Management and
each other debtor in the Case from any and all claims and causes of
action with respect to any and all such Claims.
3.
Pre-Closing Matters
.
3.1
Operation of Business
. Between the Effective Date
and the Closing Date, Seller shall:
3.1.1.
Use commercially
reasonable efforts to conduct the Business and operate and maintain
the Purchased Assets in the Ordinary Course of
Business;
3.1.2.
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;
3.1.3.
Not permit or
allow any material Purchased Assets to become subject to any
additional Lien (other than Permitted Encumbrances);
3.1.4.
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;
and
3.1.5.
Pay all
post-Petition Date amounts due under the Personal Property Leases
and the Real Property Leases through the Closing Date.
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 the Purchased Assets,
and (ii) cause its Representatives to furnish Buyer with such
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
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,
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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.
3.4
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.
3.5
Release . On or prior to the Effective Date, Buyer
and Seller shall have executed, and Buyer shall have caused its
Affiliates named therein to execute, a Release, substantially in
the form of Exhibit D to this Agreement.
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 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.
4.1.2.
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:
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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.
4.2.4.
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.
4.2.5.
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.
4.2.6.
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.
4.2.7.
The Bankruptcy
Court shall have entered the Approval Order and such order shall
not have been stayed as of the Closing Date.
4.2.8.
Since the
Effective Date, the ability of Wells Fargo Bank, National
Association to provide financing to Buyer pursuant to that certain
commitment letter dated June 8, 2004 shall not have been adversely
affected in any material way as the result of any fire, explosion,
accident, riot, terrorist attack, civil or labor disturbance,
strike, boycott, lockout, flood, drought, storm, earthquake,
embargo or other casualty or act of God or the public
enemy.
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 Friday mutually acceptable to the parties that is within ten (10)
Business Days after the later of (x) entry of the Approval Order or
(y) delivery of the notice of Estimated Net Book Value specified in
Section 2.1; provided , however , the Closing shall
occur no later than August 31, 2004.
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, the Intangible
Property and the Receivables, and (b) Buyer’s assumption of
the Assumed Liabilities and indemnification of Seller in respect
thereof (including, without
6
limitation,
indemnification in respect of any legal fees or other costs
incurred by Seller in exercising its right to
indemnity).
5.2.3.
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.
5.3.6.
In the event that
Buyer makes any assignment of its rights under this Agreement to an
Affiliate of Buyer as provided in Section 10.5 below, Buyer shall
have executed and delivered to Seller, concurrently with or prior
to the Closing Date, a guaranty, substantially in the form and
substance attached hereto as Exhibit E (the “
Guaranty ”), of all of Buyer’s obligations under
this Agreement and under any documents executed by such Affiliate
of Buyer in favor of Seller pursuant hereto.
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 the Closing Date, except to
the extent, if any, that any of the foregoing are included in the
calculation of Current Liabilities. 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 (other than 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, if Buyer
elects to obtain title insurance with respect to the Leased Real
Property and the Improvements, the premium for insurance, as well
as for any endorsements thereto that Buyer elects to
obtain.
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6.
Representations and
Wa
