|
CA1as4:YB6Ibl OMM3 DftdEA3-File&ifL4 WM/2EntEtefEMMMA7/ M40:1oesb"ain
<br />Dfsxhilotcfl P@ggE Mb698
<br />CAmsa 2MbWItaM4143 DftdEX3-EilefFOW78HB/2EntEiyttQ41m88IBMZM42:loesb"ain
<br />DBshd*& P@ggt88Fob698
<br />the Debtors; (f) to be a continuation, or substantial continuation, or hold themselves out as a mere
<br />continuation of the Debtors or any enterprise of the Debtors or their estates; or (g) to be liable for
<br />any acts or omissions of Debtors in the conduct of the Business or arising under or related to the
<br />Assets. There is no continuity of enterprise with the Debtors by any theory of law or equity. The
<br />Buyers shall not assume, nor be deemed to assume or in any way be responsible for any liability
<br />or obligation of any of the Debtors and/or their estates including, but not limited to, any Interests,
<br />any bulk sales Law, successor liability, liability or responsibility for any claim against the Debtors
<br />or against an insider of the Debtors, or similar liability except as otherwise expressly provided in
<br />the Sale Agreements. The Sale Motion contains sufficient notice of such limitation in accordance
<br />with applicable Law. Except for the Assumed Liabilities, the transfer of the Assets to the Buyers
<br />under the Sale Agreements shall not result in (x) the Buyers, Buyers' Related Persons or the Assets,
<br />having any liability or responsibility for my claim against the Debtors or against an insider of the
<br />Debtors (including, without limitation, Interests); (y) the Buyers, Buyers' Related Persons or the
<br />Assets, having any liability whatsoever with respect to or be required to satisfy in any manner,
<br />whether at law or in equity, whether by payment, setoff or otherwise, directly or indirectly, any
<br />Interests; or (z) the Buyers, Buyers' Related Persons or the Assets, having any liability or
<br />responsibility to the Debtors related to the transfer of the Assets to the Buyers under the Sale
<br />Agreements except as is expressly set forth in the Sale Agreements. This provision is without
<br />prejudice to any Challenges that may be brought by the Committee against the Prepetition Secured
<br />Parties; provided however, that the Committee shall not have the right to bring any Challenge that
<br />is resolved pursuant to Stipulation or otherwise resolved pursuant to the terms hereof.
<br />24. Without limiting the generality of the foregoing, and except as otherwise provided
<br />in the Sale Agreements, the parties intend and the Court hereby orders that the Buyers and Buyers'
<br />34
<br />CA)iEs4:2IF6Wg.2MU3 Dft4BA3-File6i WOMM/2EntEtetL'BWCWZMAM2IB4M:10esbMain
<br />DGahihiCB MggE831Db698
<br />hereby approved, and the requirements of sections 365(b)(1) and 365(f)(2) of the Bankruptcy Code
<br />(including to the extent, if any, modified by section 365(b)(3) of the Bankruptcy Code) with respect
<br />thereto are hereby deemed satisfied. The Assigned Contracts shall be deemed assumed by the
<br />Debtors and assigned to Buyers on the Closing pursuant to this Order, and Buyers shall be fully
<br />and irrevocably vested in all right, title, and interest of each Assigned Contract. The Debtors shall
<br />cooperate with, and take all actions reasonably requested by, the Buyers to effectuate the
<br />foregoing, as further provided in the Sale Agreements.
<br />27. Each counterparty to the Assigned Contracts is hereby forever barred, estopped,
<br />and permanently enjoined from raising or asserting against the Debtors or the Buyers, or the
<br />property of any of them, any assignment fee, default, breach, claim, pecuniary loss, liability, or
<br />obligation (whether legal or equitable, secured or unsecured, matured or unmatured, contingent or
<br />noncontingent, known or unknown, liquidated or unliquidated senior or subordinate), or my
<br />Interest, arising under or out of, in connection with, or in my way related to the Assigned Contracts
<br />existing as of the Closing Date or arising by reason of the Closing.
<br />28. Adequate Assurance. The Buyers have provided adequate assurance of their
<br />future performance under the relevant Assigned Contracts within the meaning of sections
<br />365(b)(1)(C) and 365(f)(2)(B) of the Bankruptcy Code (including to the extent, if any, modified by
<br />section 365(b)(3) of the Bankruptcy Code). All other requirements and conditions under sections
<br />363 and 365 of the Bankruptcy Code for the Debtors' assumption and assignment to the Buyers of
<br />the Assigned Contracts have been satisfied.
<br />29. Anti -Assignment Provisions Unenforceable. No sections or provisions of the
<br />Assigned Contracts that purport to (a) prohibit, restrict, or condition Debtors' assignment of the
<br />Assigned Contracts, including, but not limited to, the conditioning of such assignment on the
<br />Related Persons shall not be liable for any Interest against any of the Debtors, or any of each
<br />Debtor's predecessors or Affiliates, and the Buyers and Buyers' Related Persons shall have no
<br />successor or vicarious liabilities of any kind or character, including, but not limited to, any theory
<br />of antitrust, environmental, successor, or transferee liability, labor Law, de facto merger or
<br />substantial continuity, whether known or unknown as of the Closing Date, now existing or
<br />hereafter arising, whether asserted or unasserted, fixed or contingent, liquidated or unliquidated
<br />with respect to the Debtors or any obligations of the Debtors arising on or prior to the Closing
<br />Date, including, but not limited to, liabilities on account of any taxes due in connection with, or in
<br />any way relating to, the Assets on or prior to the Closing Date. The consideration given by Buyers
<br />shall constitute valid and valuable consideration for the release of any potential claims of successor
<br />liability against Buyers and Buyers' Related Persons, which releases shall be deemed to have been
<br />given in favor of the Buyers and Buyers' Related Persons by all holders of Interests against the
<br />Debtors or the Assets.
<br />25. No Bulk Sales: No Brokers. No bulk sales Law or any similar Law of any state or
<br />other jurisdiction shall apply in any way to the Sale Transaction. The Buyers are not, and will not
<br />become, obligated to pay my fee or commission or like payment to any broker, finder, or financial
<br />advisor as a result of the consummation of the Sale Transaction based upon any arrangement made
<br />by, or on behalf of, the Debtors.
<br />26. Assumption and Assignment of Assigned Contracts. Under sections 105(a), 363,
<br />and 365 of the Bankruptcy Code, and subject to and conditioned upon the closing of the Sale
<br />Transaction, the Debtors' assumption and assignment of the Assigned Contracts to the Buyers free
<br />and clear of all Interests pursuant to the terms set forth in the We Agreements, as modified by the
<br />terms of any amendments reached directly by the Buyers with the respective counterparty, is
<br />W
<br />C9U-.Esa:2B8kt8,7aM3 DGDdHA3-FiledFOWWM/2EntEenEf19!®BflIBA7lt2M42,lDesD&Aain
<br />DCshitrEB P@ggt88bb698
<br />consent of the non -debtor party to such Assigned Contracts; (b) authorize the termination,
<br />cancellation, or modification of the Assigned Contracts based on the filing of a bankruptcy case,
<br />the financial condition of the Debtors, or similar circumstances; (c) declare a breach or default as
<br />a result of a change in control in respect of the Debtors; or (d) provide for additional payments,
<br />penalties, conditions, renewals, extensions, charges, or other financial accommodations in favor
<br />of the non -debtor third party to the Assigned Contracts, or modification of any term or condition
<br />upon the assignment of an Assigned Contract or the occturence of the conditions set forth in
<br />subsection (b) above, shall have any force and effect, and such provisions constitute unenforceable
<br />anti -assignment provisions under section 365(f) of the Bankruptcy Code and/or are otherwise
<br />unenforceable under section 365(e) of the Bankruptcy Code. The entry of this Order constitutes
<br />the consent of the non -debtor parties to the Assigned Contracts to the Debtors' assumption and
<br />assignment of such Assigned Contracts to the Buyers. All Assigned Contracts shall remain in full
<br />force and effect, without existing default(s), subject only to payment of the appropriate Cure Costs,
<br />if my, by the Buyers.
<br />30. No Fees for Assumption and Assignment. There shall be no rent accelerations,
<br />assignment fees, increases or my other fees charged to the Buyers, Buyers' Related Persons or the
<br />Debtors as a result of the assumption and assignment of the Assigned Contracts.
<br />31. Cure Costs. All defaults or other obligations shall be deemed cured by the Buyers'
<br />payment in other satisfaction of the core amounts, if my, associated with the Assigned Contracts
<br />(the "Cure Costs').
<br />32. Notice of Assumption and Assignment. The Debtors have served (Docket No.
<br />264) all of the non -debtor counterparties to the Assigned Contracts, identified on the lists the
<br />Debtors have filed with the Bankruptcy Court, by first class mail, an Assumption/Assignment
<br />36 37
<br />
|