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Case 19-36275-KRH Doc 167 Filed 02/14/20 Entered 02/14/20 15:02:25 Desc Main

Document Page 6 of 55
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Case 19-36275-KRH Doc 167 Filed 02/14/20 Entered 02/14/20 15:02:25 Desc Main

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Case 19-36275-KRH Doc 167 Filed 02/14/20 Entered 02/14/20 15:02:25 Desc Main

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Document Page 12 of 55
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Document Page 13 of 55
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Document Page 14 of 55
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Case 19-36275-KRH Doc 167 Filed 02/14/20 Entered 02/14/20 15:02:25 Desc Main

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Document Page 16 of 55
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Case 19-36275-KRH Doc 167 Filed 02/14/20 Entered 02/14/20 15:02:25 Desc Main

Document Page 17 of 55

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Case 19-36275-KRH Doc 167 Filed 02/14/20 Entered 02/14/20 15:02:25 Desc Main

Document Page 18 of 55

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Document Page 19 of 55
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Case 19-36275-KRH Doc 167 Filed 02/14/20 Entered 02/14/20 15:02:25 Desc Main

Document Page 20 of 55
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Document Page 21 of 55
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Case 19-36275-KRH Doc 167 Filed 02/14/20 Entered 02/14/20 15:02:25 Desc Main

Document Page 22 of 55
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Case 19-36275-KRH Doc 167 Filed 02/14/20 Entered 02/14/20 15:02:25 Desc Main

Document Page 23 of 55
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Case 19-36275-KRH Doc 167 Filed 02/14/20 Entered 02/14/20 15:02:25 Desc Main

Document Page 31 of 55
4840-9378-7821.v7 

ASSET PURCHASE AGREEMENT 

THIS ASSET PURCHASE AGREEMENT (this “Agreement”), is made as of this 2nd day 

of January, 2020, by and between Kituwah, LLC, a limited liability company the sole member of 

which is the Eastern Band of the Cherokee Indians (“Kituwah”), on the one hand, and Alouette 

Holdings, Inc., a Virginia corporation (“Alouette”), Cardinal Homes, Inc., a Virginia corporation 

(“Cardinal”, and, together with Alouette, each a “Seller” and collectively the “Sellers”), on the 

other.

W I T N E S S E T H 

WHEREAS, the Sellers have been engaged in, among other things, the manufacture and 

delivery of prefabricated housing (the “Business”). 

WHEREAS, on November 20, 2019, Alouette commenced a voluntary chapter 11 

Bankruptcy Case (the “Alouette Case”) in the United States Bankruptcy Court for the Eastern 

District of Virginia (the “Bankruptcy Court”), administered under Bankruptcy Case Number 19-

36126.

WHEREAS, on December 2, 2019, Cardinal commenced a voluntary chapter 11 

Bankruptcy Case (the “Cardinal Case”, and, together with the Alouette Case, the “Bankruptcy 

Cases”) in the Bankruptcy Court administered under Bankruptcy Case Number 19-36275. 

WHEREAS, Kituwah and/or its assigns (each a “Purchaser” and collectively, the 

“Purchasers”) desire to purchase from Sellers, and Sellers desire to sell to Purchasers, all of 

Sellers’ interest in any real property and in any personal property, except as explicitly excluded 

herein. 

WHEREAS, Purchasers desire to assume certain of Sellers’ liabilities upon the terms and 

conditions set forth herein. 

NOW, THEREFORE, in consideration of the premises and the mutual promises herein 

made, and in consideration of the representations, warranties and covenants herein contained, 

and for other good and valuable consideration, the receipt and adequacy of which are hereby 

acknowledged by each party and intending to be legally bound hereby, subject to Bankruptcy 

Court approval, the Parties agree as follows: 

1. ARTICLE 1.

As used herein, the following terms shall have the following meanings:

“Assumed Contracts” shall have the meaning set forth in Section 2.3.

“Auction” means an auction of the Sale Assets conducted in accordance with the Sale

Procedures Order. 

“Bankruptcy Cases” shall have the meaning set forth in the Preamble. 

“Bankruptcy Petition” means the voluntary bankruptcy petitions filed by the Sellers with 

the Bankruptcy Court in the Bankruptcy Cases. 

Case 19-36275-KRH Doc 167 Filed 02/14/20 Entered 02/14/20 15:02:25 Desc Main

Document Page 32 of 55
2

4840-9378-7821.v7 

“Business Day” means any day that is not a Saturday, Sunday, or other day on which 

banks are required or authorized by law to be closed in New York, New York. 

“Closing Date” has the meaning set forth in Section 4.1. 

“Excluded Assets” means: 

(a) Sellers’ minute books and other corporate books and records relating to their 

organization and existence; 

(b) Sellers’ rights under this Agreement, and all cash and non-cash consideration 

payable or deliverable to Sellers pursuant to the terms and provisions hereof; 

(c) any contracts other than the Assumed Contracts and contracts covered by 

paragraph 2.3.1 below; 

(d) all avoidance actions of Sellers’ estates arising under Title 11 of the United 

States Code, including without limitation, sections 544, 545, 547, 548, 549, 

550 and 553 of the Bankruptcy Code; 

(e) all claims and causes of action of Sellers against Persons other than 

Purchasers (regardless of whether or not such claims and causes of action 

have been asserted by Sellers), and all rights of indemnity, warranty rights 

(other than warranty rights in connection with the Sale Assets), rights of 

contribution, rights to refunds, rights of reimbursement and other rights of 

recovery, including rights to insurance proceeds, of Sellers (regardless of 

whether such rights are currently exercisable); 

(f) all rights under director and officer (or similar) insurance policies maintained 

by Sellers; 

(g) any documents or other materials which are subject to attorney-client or other 

privilege; and 

(h) all intercompany accounts receivable of Sellers as of the Closing Date. 

“Final Order” means an order of the Bankruptcy Court or other court of competent 

jurisdiction: (a) as to which no appeal, notice of appeal, motion to amend or make additional 

findings of fact, motion or alter or amend judgment, motion for rehearing, motion for new trial, 

or any other proceeding challenging the findings, conclusions or relief granted by the Bankruptcy 

Court has been timely filed or otherwise commenced or, if any of the foregoing has been timely 

filed or otherwise commenced, it has been disposed of by the Bankruptcy Court or other court of 

competent jurisdiction in a manner that upholds and affirms the subject order in all material 

respects without the possibility for further appeal or rehearing thereon; (b) as to which the time 

for instituting and/or filing an appeal, a notice of appeal, motion for rehearing, motion for new 

trial , or any other proceeding challenging the finds, conclusions, or relief granted by the 

Bankruptcy Court or other court of competent jurisdiction shall have expired; and (c) as to which 

no stay is in effect; provided, however, that the filing or pendency of a motion under Federal 

Rule of Bankruptcy Procedure 9024 shall not cause an order not to be deemed a “Final Order” 

unless such motion shall be filed within fourteen (14) days of the entry of the order at issue. 

Case 19-36275-KRH Doc 167 Filed 02/14/20 Entered 02/14/20 15:02:25 Desc Main

Document Page 33 of 55
3

4840-9378-7821.v7 

“Included Assets” means any and all personal property, known or unknown, of the 

Sellers, exclusive only of the Excluded Assets and including but not limited to: 

(a) all cash, cash equivalents, and investment accounts of Sellers on hand or on 

deposit as of the Closing Date; 

(b) all vehicles owned by Sellers as of the Closing Date; 

(c) any and all amounts prepaid or deposited with and held by manufacturers, 

suppliers, subcontractors or other vendors related to the Sale Assets as of the 

Closing Date; 

(d) the Assumed Contracts and all deposits, advances, and prepayments with 

respect to the Assumed Contracts; 

(e) all accounts receivable of Sellers, whether pre- or post-petition, relating to the 

Business arising prior to the Closing Date, but excluding intercompany 

accounts receivables; 

(f) all inventory, work-in-progress, and plans, drawings and specifications for all 

work-in-progress and for work competed at any time prior to the Closing of 

this Agreement owned by Sellers in connection with the Business as of the 

Closing Date; 

(g) all items of machinery, equipment, supplies, furniture, fixtures, and other 

tangible personal property owned by Sellers as of the Closing unless 

otherwise specifically identified as an Excluded Asset; 

(h) all intellectual property of Sellers (including but not limited to trademarks, 

patents, copyrights, trade names, and domain names, whether registered or 

unregistered); 

(i) all social media accounts and related rights; 

(j) all mailing lists and emailing lists of customers; 

(k) all rights of Sellers under or arising out of all insurance policies relating to the 

operation of the Business (including all claims arising thereunder), unless 

non-assignable as a matter of law; 

(l) all vested rights and privileges of Sellers under or relating to any Contracts to 

which Sellers are or were a party that are not capable of being assumed and/or 

assigned under Section 365 of the Bankruptcy Code to the extent such rights 

or privileges relate to or affect any Sale Asset; 

(m)all rights under confidentiality agreements, non-disclosure agreements and 

similar agreements related to or affecting any Sale Asset; 

(n) all licenses and permits, to the extent permissible by relevant law; 

(o) all rights under or pursuant to all warranties, representations and guarantees 

made by suppliers, manufacturers, contractors, and any other Person to the 

extent relating to or affecting any Sale Asset; 

(p) all sales and promotional materials, catalogues and advertising literature 

relating to any Sale Asset; 

Case 19-36275-KRH Doc 167 Filed 02/14/20 Entered 02/14/20 15:02:25 Desc Main

Document Page 34 of 55
4

4840-9378-7821.v7 

(q) all goodwill, trademarks, service marks, intellectual property, trade secrets, 

and other intangible assets associated with or relating to, the Sale Assets, 

including customer and supplier lists; 

(r) all of Sellers’ telephone, cell phone, and facsimile numbers, e-mail listings 

and addresses, web sites, post office boxes, and all listings in all telephone 

books, directories, and web sites relating to the Business; and 

(s) all non-privileged books, records, files and papers of Sellers relating primarily 

to the Business or the Sale Assets, including, without limitation, equipment 

logs, operating guides and manuals, creative materials, advertising materials, 

promotional materials, studies, reports, correspondence, financial and 

accounting records, tax records and other similar documents and records (all 

in the state in which such records and information currently exist); provided, 

that Sellers shall be entitled to retain copies of such books, records, files and 

papers. 

 “Knowledge” of an individual means the actual knowledge of such individual. With 

respect to a Person (other than an individual), “Knowledge” means the actual knowledge of any 

individual who is serving as a director or executive officer (or in any similar capacity) of such 

Person.

“Lien” means any lien, security interest, pledge, hypothecation, encumbrance or other 

interest or claim (including, but not limited to, any and all “claims,” as defined in Section 101(5) 

of the Bankruptcy Code, and any and all rights and claims under any bulk transfer statutes and 

similar laws) in or with respect to any of the Sale Assets (including, but not limited to, any 

options or rights to purchase such Sale Assets and any mechanics’ or tax liens), whether arising 

by agreement, by statute or otherwise and whether arising prior to, on or after the date of the 

filing of the respective Bankruptcy Petitions in the respective Bankruptcy Cases. 

“Person” means any individual, corporation, partnership, joint venture, trust, association, 

limited liability company, unincorporated organization, other entity, or governmental body or 

subdivision, agency, commission or authority thereof. 

“Purchase Price” has the meaning set forth in Section 3.1. 

“Purchasers Default Termination” has the meaning set forth in Section 3.2.1. 

“Sale Assets” has the meaning set forth in Section 2.2. 

“Sale Motion” means the Motion to (A) Approve Sale of Substantially All Assets of the 

Sellers, (B) Establish Related Sale Procedures, Including Break-Up Fee (C) Transfer Any and 

All Claims, Liens, Encumbrances and Interests in Sale Assets to Proceeds Of Sale, (D) Approve 

Form and Manner of Notice of Sale, and (E) Schedule Hearings. 

“Sale Procedures” means the sale procedures approved by the Sale Procedures Order. 

“Sale Procedures Order” means the Order entered by Bankruptcy Court approving the 

form and manner of notice for the sale contemplated herein, approving sale procedures 

governing such sale including a break-up fee, setting deadlines for bids and objections, and 

scheduling an auction and final hearing to consider approval of such sale. 

Case 19-36275-KRH Doc 167 Filed 02/14/20 Entered 02/14/20 15:02:25 Desc Main

Document Page 35 of 55
5

4840-9378-7821.v7 

“Sale Approval Order” means the Order entered by the Bankruptcy Court approving the 

transactions contemplated hereby and the definitive documentation and waiving the fourteen (14) 

day automatic stay of Bankruptcy Rule 6004(h), which Sale Approval Order has not been stayed. 

“Transaction Documents” means this Agreement, the Employment Agreement for Bret 

Anthony Berneche, a Domain Name Assignment Agreement prepared by Purchasers and 

reasonably acceptable to Sellers, and any other bills of sale, agreements, instruments or 

documents reasonably requested by Purchasers in connection with the transfer of the Sale Assets, 

in each case prepared by Purchasers and reasonably acceptable to Sellers and entered into 

pursuant to this Agreement. 

2. ARTICLE 2. 

2.1. Sale and Purchase of Real Property. Upon the terms and subject to the satisfaction of 

the conditions contained in this Agreement, at the Closing, Sellers shall sell, assign, 

convey, transfer and deliver to Purchasers, and Purchasers shall, by Purchasers’ payment 

of the Purchase Price, purchase and acquire from Sellers, all known interests in real 

property in the Bankruptcy Cases, including those six (6) parcels of real property 

described in that certain deed from Cardinal to Alouette recorded in Book 0441, Page 

0518 in the Clerk’s Office of the Circuit Court of Charlotte County, Virginia and all 

unknown interests in real property used in connection with the Sellers’ business 

operations or incidental thereto (the “Real Property Assets”).

2.2. Sale and Purchase of Personal Property. Upon the terms and subject to the 

satisfaction of the conditions contained in this Agreement, at the Closing, Sellers shall 

sell, assign, convey, transfer and deliver to Purchasers, and Purchasers shall, by 

Purchasers’ payment of the Purchase Price, purchase and acquire from Sellers, all known 

interests in personal property, all unknown interests in personal property used in 

connection with the Sellers’ business operations or incidental thereto and all other assets 

(apart from Real Property Assets sold pursuant to Section 2.1 of this Agreement) in the 

Bankruptcy Cases (the “Personal Property Assets”, and, together with the Real Property 

Assets, the “Sale Assets”), including but not limited to the Included Assets; provided, 

however, that the Sale Assets shall not include the Excluded Assets. The Sale Assets 

shall be conveyed to the Purchasers “as is, where is,” and without representation or 

warranty except as otherwise provided in this Agreement and free and clear of all Liens 

to the fullest extent permitted under Section 363 of the Bankruptcy Code. 

2.3. Assumed Liabilities. Purchasers shall have the right, but no obligation, to assume any 

of the Sellers’ obligations to perform work pursuant to, and to the extent of, any security 

deposits made by any customer of Sellers to the Sellers relating to the business of the 

Sellers. For the purposes of clarity, Purchasers shall not assume any obligation to refund 

such deposits upon the request of such customers, apply such deposits to offset 

obligations of such customers, apply such deposits to alternate work or projects upon the 

request of such customers or use such deposits for any purpose other than the 

performance of related work. To the extent that any Assumed Contract is subject to a 

cure pursuant to section 365 of the Bankruptcy Code, Purchasers shall be responsible for 

such cure and at Closing shall pay or provide for payment of any amounts related to such 

cure obligations. Sellers will assign to Purchasers, and Purchasers will assume on the 

Closing Date, the executory obligations and liabilities of Sellers arising out of or relating 

Case 19-36275-KRH Doc 167 Filed 02/14/20 Entered 02/14/20 15:02:25 Desc Main

Document Page 36 of 55
6

4840-9378-7821.v7 

to the terms of the Assumed Contracts. For those contracts and leases on the list of 

executory contracts and unexpired leases provided to Purchasers by Sellers on December 

31, 2019, Purchasers shall provide Sellers a list of the contracts and leases to be assumed 

by Purchasers on or before January 17, 2020; for any other contracts or leases 

subsequently provided by Sellers, Purchasers shall provide written notice to Sellers 

whether Purchasers shall assume such contract or lease within a reasonable time 

(collectively, the “Assumed Contracts”). 

2.3.1. Customer Deposits. Purchaser will honor customer contracts with deposits for 

those customers who want to continue to do business with the Purchasers and are 

not asserting claims based on any pre-closing defaults. If the customer agrees to 

pay the balance of the purchase price under the original contract, then Purchasers 

will perform the contract to deliver the product order. If a customer wants a 

refund or wants to assert claims against the Debtors in the Bankruptcy Cases for 

late delivery or other adjustments to the purchase price for pre-closing defaults, 

then Purchasers will not perform the contract. 

2.4. Excluded Liabilities. Except as specified herein, Purchasers shall not assume any 

liabilities or obligations of Sellers, including, but not limited to, general liabilities, tax 

liabilities, environmental and employment-related liabilities and obligations, and any 

obligation or liability arising out of any breach, violation or default of or by Sellers, 

whether known or unknown, disputed or undisputed, contingent or non-contingent, 

liquidated or unliquidated or otherwise (collectively, “Excluded Liabilities”). 

Notwithstanding anything in this Agreement to the contrary, Purchasers shall not assume 

any obligation or liability of Sellers arising out of or relating to (a)any product liability 

claim, (b) any claim for breach by Sellers of warranty or contract including, without 

limitation, those of Sellers’ customers and/or subscribers, (c) any claim predicated on 

strict liability or any similar legal theory, (d) the violation of any law, ordinance or 

regulation, (e) any liability of Sellers, including for expenses or taxes, if any, in 

connection with, resulting from or arising out of this Agreement or the transactions 

contemplated herein, (f) any liability of Sellers for any other taxes, interest or penalties 

including, without limitation, any such taxes, interest or penalties assessed, imposed, 

accruing from any acts or activities arising or occurring prior to the Closing Date (as 

defined herein in subparagraphs 4.1) or those taxes specified in subparagraph 2.5 herein 

below, (g) any claim of a creditor arising after Closing pursuant to Section 502(h) of the 

Bankruptcy Code, or (h) any post-petition obligations of Sellers, or claim for 

administrative expenses (including attorneys’ fees or fees of other professionals in the 

Bankruptcy Case, trustee’s fees or claims of any party arising after the filing date of 

Sellers’ petitions), all of which shall remain after Closing the obligation of Sellers’ 

estates. 

2.5. Sales Taxes. Sellers shall be responsible for the payment of all sales, use, excise, 

transfer, value added, and similar taxes imposed by any governmental authority in any 

jurisdiction in connection with the transactions contemplated herein, except insofar as 

both Sellers and Purchasers are relieved of any responsibility for such taxes under the 

provisions of the Sale Approval Order and applicable provisions of the Bankruptcy 

Code.

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3. ARTICLE 3. 

3.1. Purchase Price. In consideration for the Sale Assets, and subject to the other terms and 

conditions of this Agreement, and the entry and effectiveness of the Sale Approval 

Order, Purchasers shall pay Five Million Eight Hundred Thousand Dollars 

($5,800,000.00) (the “Purchase Price”), which amount may be increased if the 

Purchasers, in their sole discretion, so elects at any Auction held pursuant to the Sale 

Procedures. The Purchase Price shall be paid to the Sellers as follows: (i) an amount in 

cash equal to Five Million Five Hundred Thousand Dollars ($5,500,000.00), and (ii) an 

assumption of the prepetition loans from Kituwah to the Sellers in the amount of Three 

Hundred Thousand Dollars ($300,000.00). The Purchase Price, shall be paid on the 

Closing Date, with such payment to be made by wire transfer of immediately available 

U.S. funds to an account designated by Sellers.

3.2. Prorations. Liability for ad valorem and other taxes, utility charges and deposits, rents, 

prepaid expenses, security services and any and all other expenses relating to the Sale 

Assets, the Assumed Contracts or the Assumed Obligations, which are not treated 

elsewhere herein, will be allocated and prorated between Purchasers and Sellers through 

the Closing Date to reflect the principle that Sellers shall be responsible for the portion 

of such expenses arising on or prior to the Closing Date, and Purchasers shall be 

responsible for the portion of such expenses arising after the Closing Date. To the extent 

that any of such items are paid by Sellers prior to the Closing or are payable by 

Purchasers or Sellers after the Closing Date, such items shall be apportioned as of the 

Closing Date such that Sellers shall be liable for (and shall reimburse Purchasers to the 

extent that Purchasers shall have paid) that portion of any such item relating or 

attributable to periods on or prior to the Closing Date and Purchasers shall be liable for 

(and shall reimburse Sellers to the extent Sellers shall have paid) that portion of any such 

item relating or attributable to periods after the Closing Date. Should any amounts to be 

prorated not have been finally determined on the Closing Date, a mutually satisfactory 

estimate of such amounts made on the basis of Sellers’ records shall be used as a basis 

for settlement at Closing, and the amount finally determined will be prorated as of the 

Closing Date, and appropriate settlement made as soon as practicable after such final 

determination. If as a result of any such settlement in accordance with the preceding 

sentence, either party is owed an amount from the other party, then the appropriate party 

shall make reimbursement for such amounts. Sellers and Purchasers agree to furnish 

each other with such documents and other records as each party reasonably requests in 

order to confirm all adjustment and proration calculations made pursuant to this 

Paragraph. 

4. ARTICLE 4. 

4.1 Closing. The closing of the transaction contemplated hereby will take place (the 

“Closing” or “Closing Date”) on a date designated by the Purchasers but in no event later 

than ten (10) days after the Sale Approval Order has become a Final Order. The Closing 

will take place at a location to be mutually agreed upon by Purchasers and Sellers. The 

transfer of the Sale Assets shall be effective for all purposes as of 12:01 a.m. eastern time 

on the day following the Closing Date. In no event shall the Closing occur after February 

19, 2020.

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4.2 Cooperation; Bankruptcy Court Approvals. The parties shall cooperate fully with 

each other and with their respective legal counsel and accountants in connection with any 

steps required to be taken as part of their respective obligations under this Agreement 

(including, without limitation, the obtaining of the approval of the Bankruptcy Court for 

the transactions contemplated herein), and all parties shall use their best efforts to 

consummate the transactions contemplated herein and to fulfill their obligations 

hereunder. Without limiting the generality of the foregoing, within five (5) business days 

after the date hereof, Sellers shall file a motion with the Bankruptcy Court seeking entry 

of the Sale Procedures Order and the Sale Approval Order (each defined below). Sellers 

shall use their best efforts to obtain entry of the Sale Procedures Order and the Sale 

Approval Order. Purchasers and Sellers each agrees to use their commercially reasonable 

efforts to take, or cause to be taken, all action and to do, or cause to be done, all things 

necessary, proper, or advisable to satisfy the conditions to the other parties’ obligation to 

consummate and make effective the transactions contemplated by this Agreement.

5. ARTICLE 5. 

5.1 Deliveries by Sellers. At the Closing, Sellers shall deliver, or cause to be delivered, 

to Purchasers the following (each in form and substance reasonably satisfactory to 

Purchasers): 

5.1.1 Each Transaction Document to which any Seller is a party, duly executed by 

such Seller;

5.1.2 A certified copy of the Sale Approval Order, in a form acceptable to 

Purchasers, that has been entered by the Bankruptcy Court;

5.1.3 Such bills of sale, deeds, endorsements, assignments, UCC terminations and 

other filings and other good and sufficient instruments, in form reasonably 

satisfactory to Purchasers, as Purchasers may reasonably request to vest in 

Purchasers all the right, title and interest of Sellers in, to or under any or all of 

the Sale Assets free and clear of Liens;

5.1.4 Physical possession of all of the Sale Assets capable of passing by delivery 

with the intent that title in such Sale Assets shall pass by and upon delivery;

5.1.5 An affidavit from each Seller, sworn under penalty of perjury and dated as of 

the Closing Date, in form and substance required under the Treasury 

regulations issued pursuant to Section 1445 of the Internal Revenue Code, 

stating that such Seller is not a foreign person as defined in Section 1445 of 

the Internal Revenue Code;

5.1.6 All keys to any buildings or facilities that are included in the Sale Assets, 

combinations to any safes thereon and passwords for all computers thereon 

and any security devices therein; and

5.1.7 All of the books and records relating to the assets of the Business.

5.1.8 Such other instruments of documents as Purchasers may reasonably request to 

fully effect the transfer of the Sale Assets and to otherwise consummate the 

transactions contemplated by this Agreement.

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5.2 Deliveries by Purchasers. At the Closing, Purchasers shall deliver, or cause to be 

delivered, the following:

5.2.1 The Purchase Price.

5.2.2 Such other instruments or documents as Sellers may reasonably request to 

fully effect the transfer of the Sale Assets and to otherwise consummate 

the transactions contemplated by this Agreement.

6 ARTICLE 6. 

6.1 Representations And Warranties Of Purchasers. Each Purchasers hereby 

represents and warrants to Sellers that the statements contained in this Article are 

correct and complete as of the date hereof and as of the Closing Date: 

6.1.1 The Purchasers are duly organized, validly existing and in good standing 

under the laws of their jurisdiction of organization. The Purchasers have 

the requisite power and authority to own or lease and to operate and use 

the Purchasers’ properties and to carry on such Purchasers’ businesses as 

now conducted.

6.1.2 The Purchasers have the requisite power and authority necessary to enter 

into and perform their obligations under this Agreement and the other 

Transaction Documents to which they are parties and to consummate the 

transactions contemplated hereby and thereby. The execution, delivery 

and performance of this Agreement by the Purchasers and the 

consummation by the Purchasers of the transactions contemplated herein 

have been duly and validly authorized by all requisite corporate or similar 

actions in respect thereof. This Agreement has been duly and validly 

executed and delivered by the Purchasers and each other Transaction 

Document to which the Purchasers are a party will be duly and validly 

executed and delivered by the Purchasers at the Closing. This Agreement 

constitutes and, when executed, the other Transaction Documents to which 

the Purchasers are a party will constitute, the legal, valid and binding 

obligation of such Purchasers, enforceable against such Purchasers in 

accordance with their respective terms, except as such enforceability is 

limited by bankruptcy, insolvency, reorganization, moratorium or similar 

laws now or hereafter in effect relating to creditors’ rights generally or 

general principles of equity. 

6.1.3 Except for (i) the entry of the Sale Approval Order and (ii) for notices, 

filings and consents required in connection with the Bankruptcy Cases, the 

Purchasers are not and will not be required to give any notice to or obtain 

any consent from any Person in connection with the execution and 

delivery of this Agreement and the other Transaction Documents to which 

they are parties or the consummation or performance of any of the 

transactions contemplated hereby or thereby.

6.1.4 When the consents and other actions described in Section 6.1.3 have been 

obtained and taken, the execution and delivery of this Agreement and the 

other Transaction Documents and the consummation of the transactions 

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provided for herein and therein will not result in the breach of any of the 

terms and provisions of, or constitute a default under, or conflict with, or 

cause any acceleration of any obligation of the Purchasers under (a) any 

contract or other instrument to which it is bound, (b) any provision of the 

organizational documents of the Purchasers, or (c) any law, order or 

governmental authorization applicable to the Purchasers, except for any 

such conflict, violation, breach or default, individually or in the 

agreement, would not reasonably be expected to prevent or materially 

delay the consummation of the transactions contemplated hereby.

6.1.5 Each Purchaser has and will have at the Closing sufficient cash in 

immediately available funds to pay its portion of the Purchase Price and 

any other costs, fees and expenses required to be paid by it under this 

Agreement and the other Transaction Documents. As of the Closing and 

immediately after consummating the transactions contemplated by this 

Agreement and the other transactions contemplated by the Transaction 

Documents, the Purchasers will not (a) be insolvent (either because such 

Purchasers’ financial condition are such that the sum of such Purchasers’ 

debts are greater than the fair value of such Purchasers’ assets or because 

the present fair value of such Purchasers’ assets will be less than the 

amount required to pay such Purchasers’ probable liability on such 

Purchasers’ debts as they become absolute and matured), (b) have 

unreasonably small capital with which to engage in such Purchasers’ 

business or (c) have incurred or plan to incur debts beyond such 

Purchasers’ ability to repay such debts as they become absolute and 

matured.

6.1.6 There are no proceedings pending or, to the knowledge of such 

Purchasers, threatened, that would affect in any material respect such 

Purchasers’ ability to perform such Purchasers’ obligations under this 

Agreement or any other Transaction Documents or to consummate the 

transactions contemplated hereby or thereby.

6.1.7 Pursuant to the Sales Procedures Order, (a) neither the Purchasers nor any 

Person acting on behalf of the Purchasers have engaged in any collusion 

with respect to the submission of any bid or bidding or the Auction and (b) 

this Agreement is a good faith bona fide offer that Purchasers intend to 

consummate.

6.1.8 Neither the Purchasers nor any Person acting on behalf of the Purchasers 

has paid or become obligated to pay any fee or commission to any broker, 

finder, investment banker, agent or intermediary for or on account of the 

transactions contemplated by this Agreement for which any Seller is or 

will become liable.

6.1.9 Notwithstanding anything contained in this Agreement to the contrary, the 

Purchaser acknowledge and agree that Sellers are not making any 

representations or warranties whatsoever, express or implied, beyond 

those expressly given by Sellers in Article 7 (subject to the disclosures set 

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forth on the Schedules), and the Purchasers acknowledge and agree that, 

except for the representations and warranties contained in Article 7, the 

Sale Assets are being transferred on a “where is” and, as to condition, “as 

is” basis pursuant to the Sale Procedures attached to the Sales Procedures 

Order. The Purchasers acknowledge that they have conducted to the 

Purchasers’ satisfaction Purchasers’ own independent investigation of 

Sellers’ businesses and, in making the determination to proceed with the 

transactions contemplated by this Agreement, the Purchasers have relied 

on the representations and warranties expressly given by Sellers in Article 

7 and the results of such Purchasers’ own independent investigation. The 

Purchasers have received or may receive from Sellers certain projections, 

forward-looking statements and other forecasts and certain business plan 

information. The Purchasers acknowledge that there are uncertainties 

inherent in attempting to make such estimates, projections and other 

forecasts and plans, that Purchasers are familiar with such uncertainties, 

that the Purchasers are taking full responsibility for making the 

Purchasers’ own evaluation of the adequacy and accuracy of all estimates, 

projections and other forecasts and plans so furnished to the Purchasers 

(including the reasonableness of the assumptions underlying such 

estimates, projections, forecasts or plans), and that the Purchasers shall 

have no claim against anyone with respect thereto. Accordingly, 

Purchasers acknowledge that Sellers make no representation or warranty 

with respect to such estimates, projections, forecasts or plans (including 

the reasonableness of the assumptions underlying such estimates, 

projections, forecasts or plans).

6.1.10 Except for the representations and warranties contained in this Article 6, 

neither the Purchasers nor any other Person make any other express or 

implied representation or warranty with respect to the Purchasers or the 

transactions contemplated by this Agreement, and the Purchasers 

disclaims any other representations or warranties, whether made by the 

Purchasers, any affiliate of Purchasers, or any of Purchasers’ or their 

affiliates’ respective representatives. Except for the representations and 

warranties contained in this Article 6, the Purchasers disclaim all liability 

and responsibility for any representation, warranty, projection, forecast, 

statement, or information made, communicated, or furnished (orally or in 

writing) to the Sellers or Representatives. The representations and 

warranties of the Purchasers will expire upon the earlier of the Closing 

Date or the termination of this Agreement.

7 ARTICLE 7. 

7.1 Representations And Warranties Of Sellers. Sellers hereby represent and warrant 

to Purchasers that the statements contained in this Article are correct and complete as 

of the date hereof and as of the Closing Date: 

7.1.1 Each Seller is an entity duly organized, validly existing and in good 

standing under the Laws of Virginia. Subject to the limitations imposed 

on such Sellers as a result of the Bankruptcy Cases, each Seller has the 

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requisite corporate or similar power and authority to own or lease and to 

operate and use its properties and to carry on its business as presently 

conducted.

7.1.2 Each Seller has, subject to entry of the Approval Order, the requisite 

corporate power and authority necessary to enter into and perform its 

obligations under this Agreement and the other Transaction Documents to 

which such Seller is a party and to consummate the transactions 

contemplated hereby and thereby. This Agreement has been duly and 

validly executed and delivered by each Seller and each other Transaction 

Document required to be executed and delivered by each Seller at the 

Closing will be duly and validly executed and delivered by such Seller at 

the Closing. Subject to entry of the Sale Approval Order, as applicable, 

this Agreement and, when executed, the other Transaction Documents 

will, constitute the legal, valid and binding obligations of each Seller, 

enforceable against such Seller in accordance with their respective terms, 

except as such enforceability is limited by bankruptcy, insolvency, 

reorganization, moratorium or similar laws now or hereafter in effect 

relating to creditors’ rights generally or general principles of equity. 

7.1.3 Except for (i) the entry of the Sale Approval Order and (ii) notices, filings 

and consents required in connection with the Bankruptcy Cases and the 

Sale Procedures Order, neither of the Sellers is required to give any notice 

to, make any filing with or obtain any consent from any Governmental 

Authority in connection with the execution and delivery of this Agreement 

and the other Transaction Documents or the consummation or 

performance of any of the transactions contemplated hereby and thereby.

7.1.4 Immediately prior to Closing, Sellers will have authority to fulfill their 

obligations under this Agreement and, upon delivery to Purchasers on the 

Closing Date of the instruments of transfer contemplated by Section 5.1, 

and subject to the terms of the Sale Approval Order, Sellers will thereby 

transfer to Purchasers, marketable title to, or a valid contractual interest in, 

all of Sellers’ assets, free and clear of all Liens. To the knowledge of 

Sellers, the Sale Assets are, in all material respects, in good operating 

condition and repair (ordinary wear and tear excepted) and are fit for use 

in the ordinary course of the Business.

7.1.5 Sellers have not incurred any obligation or liability, contingent or 

otherwise, for brokerage or finders’ fees or agents’ commissions or other 

similar payment in connection with this Agreement, the other Transaction 

Documents or the transactions contemplated hereby or thereby for which 

Purchasers are or will become liable.

7.1.6 Except as set forth on Schedule 7.1.6, Sellers’ inventory (i) consists solely 

of materials and goods useable or saleable in the ordinary course of the 

Business (taking into account the quantity and quality of the inventory), 

(ii) is not materially defective, slow moving, obsolete or damaged, and 

(iii) is fit and merchantable for their particular use in all material respects. 

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Except as set forth on Schedule 7.1.6, none of the inventory is subject to 

any consignment, bailment, warehousing or similar agreement.

7.1.7 With respect to the real property and facilities acquired hereunder, except 

as set forth on Schedule 7.1.7: (a) to the knowledge of Sellers, the 

applicable Seller is, and has for the three-year period prior to the Closing 

Date, been in compliance with all environmental laws applicable to such 

real property and facilities, which compliance has included obtaining and 

complying with all permits required pursuant to environmental laws; 

(b) no Seller nor any predecessor or affiliate thereof has received any 

notice, report or other information regarding any actual or alleged 

violation of, or any liabilities (including any investigatory, remedial or 

corrective obligation) under, environmental laws for the three-year period 

prior to the Closing Date, or that remain outstanding, unresolved or 

unsatisfied; (c) there is no pending claim asserting liability against any 

Seller or any predecessor or affiliate thereof alleging that the foregoing 

Persons have, and, to the knowledge of each of the Sellers, no Seller nor 

any predecessor or affiliate thereof has, treated, stored, disposed of, 

arranged for or permitted the disposal of, transported, handled, released, or 

exposed any person to, any substance, including any hazardous materials; 

and (d) to the knowledge of Sellers, no Seller nor any predecessor or 

affiliate thereof has manufactured, produced, sold, marketed, installed or 

distributed products or items containing asbestos or other hazardous 

materials such as would give rise to liability under environmental laws, 

and none of the foregoing persons have any liability with respect to the 

presence or alleged presence of asbestos or other hazardous materials in 

any product or item or at or upon such real property and facilities. Each of 

the Sellers have provided or made available to Purchasers true and correct 

copies of all environmental audits, reports and other documents materially 

bearing on environmental, health and safety matters relating to the real 

property and facilities.

7.1.8 Except as set forth on Schedule 7.1.8, each Seller, and to the knowledge of 

such Seller each of its current and former officers, directors, partners, 

agents and employees, has, in all material respects, complied with and are 

in material compliance with, and are not in default in any respect with, all 

applicable laws and orders of any governmental authority relating to the 

operation of the Business and the ownership and use of the Sale Assets , 

and no written notices have been received by, and no claims filed against, 

any Seller alleging a material violation of any such laws or orders.

7.1.9 Except as set forth on Schedule 7.1.9, there are no actions or other 

proceedings or governmental investigations pending or, to the knowledge 

of Sellers, threatened by or against Sellers or that otherwise relates to or 

may affect the Business or any of the Sale Assets. Except as set forth on 

Schedule 7.1.9, (i) there are no actions or other proceedings or 

governmental investigations pending or, to the knowledge of Sellers, 

threatened involving any products manufactured, produced, distributed or 

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sold by or on behalf of Sellers in connection with or related to the Sale 

Assets (including any parts or components) (collectively, “Products”) or 

class of claims or lawsuits involving the same Product, which is pending 

or, to the knowledge of Sellers, threatened, resulting from an alleged 

defect in design, manufacture, materials or workmanship of any Product, 

or any alleged failure to warn, or from any breach of express or implied 

warranties or representations (collectively, “Product Liability Claims”); 

(ii) to the knowledge of Sellers, there has not been any Occurrence (as 

hereinafter defined); and (iii) there has not been, nor is there under 

consideration or investigation by Sellers, any recall or any Product rework 

or retrofit conducted by or on behalf of Sellers. For purposes of this 

Section 7.1.9, the term “Occurrence” shall mean any accident, happening 

or event which takes place at any time which is caused or allegedly caused 

by any alleged hazard or alleged defect in manufacture, design, materials 

or workmanship including any alleged failure to warn or any breach of 

express or implied warranties or representations with respect to, or any 

such accident, happening or event otherwise involving, any Product that is 

likely to result in a claim or loss.

7.1.10 Schedule 7.1.10 sets forth each Contract that is material to the Sale Assets, 

including without limitation the operations of the Business. Sellers have 

provided or made available to Purchasers true and correct copies of all 

such Contracts, in each case together with all amendments, waivers or 

other changes thereto.

7.1.11 Sellers have not sold, assigned, or otherwise transferred any assets into 

Cardinal Building Systems, LLC, a Virginia limited liability company 

(“CBS”). CBS owns no assets. Sellers shall use their best efforts to take 

action to change the name of CBS such that Purchasers shall be permitted 

to use the name of Cardinal Building Systems in the operation of the 

business going forward.

7.1.12 Each of the Sellers and their respective shareholders, directors, and 

officers have taken all actions that are required by their respective 

organizational documents, including without limitation, their articles of 

incorporation, bylaws, and resolutions, to obtain the requisite authority to 

enter into this Agreement and to fully perform its obligations under this 

Agreement, including without limitation, the sale of the Sale Assets to the 

Purchasers on the terms and conditions of this Agreement.

7.2 No Other Representations or Warranties. Except as expressly set forth herein, 

Sellers make no representation or warranty, express or implied, at law or in equity, 

with respect to Sellers and the Sale Assets or any other information provided to 

Purchasers, their agents or representatives in connection with or in expectation of the 

transactions contemplated by this Agreement. Sellers do not make any 

representations or warranties regarding information, documents, projections, forecasts 

or other material made available to Purchasers, their agents or representatives in 

connection with or in expectation of the transactions contemplated in this Agreement 

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except to the extent such information is expressly and specifically included in a 

representation or warranty contained in this Article 7.

8 ARTICLE 8. 

8.1 Submission for Bankruptcy Court Approval. 

8.1.1 The obligations of the Purchasers to purchase the Sale Assets and perform 

its other obligations under this Agreement shall be subject to and 

conditioned upon the entry by the Bankruptcy Court shall have entered 

(A) the Sale Procedures Order and (B) the Sale Approval Order and each 

of the Sale Procedures Order and the Sale Approval Order shall be in full 

force and effect, and shall not be stayed, modified, vacated or reversed. 

The term “Sales Bid Procedures Order” shall be in form and substances 

satisfactory to Purchasers, approving certain bid protections and 

procedures for the sale the Sale Assets and/or the assumption by 

Purchasers of certain liabilities under the Assumption Agreement, 

including: (i) approval of payment to Purchasers in the event of 

termination of this Agreement for the reasons set forth in Section 11.1.8 a 

break-up fee in the amount of Two Hundred Fifty Thousand Dollars 

($250,000.00) upon the approval of any successful competing bid (the 

“Breakup Amount”); (ii) a requirement that all competing bidders make a 

cash deposit of not less than ten percent (10%) of their purchase price, 

which deposit shall be non-refundable if the offer is accepted by Sellers 

and approved by the Bankruptcy Court; (iii) an initial overbid amount of 

not less than Three Hundred Twenty-Five Thousand Dollars 

($325,000.00); and (iv) a deadline for the submission of competitive bids. 

The term “Sale Approval Order” shall be in form and substance 

satisfactory to Purchasers, approving the consummation by Sellers of the 

transactions set forth herein, including the sale of the Sale Assets free and 

clear of all of the Liens, and the assumption of any liabilities effected by 

the Assumption Agreement, the execution and delivery of this Agreement 

and the Transaction Documents, and all other actions by Sellers that are 

reasonable or necessary to effectuate the transactions contemplated 

hereby. 

8.1.2 If the Sale Approval Order or any other orders of the Bankruptcy Court 

relating to this Agreement or the transactions contemplated hereby shall be 

appealed by any Person (or if any petition for certiorari or motion for 

reconsideration, amendment, clarification, modification, vacation, stay, 

rehearing or reargument shall be filed with respect to the Sale Approval 

Order or other such order), subject to rights otherwise arising from this 

Agreement, Sellers and Purchasers shall use their commercially 

reasonable efforts to prosecute such appeal, petition or motion and obtain 

an expedited resolution of any such appeal, petition or motion.

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8.2 Transaction Expenses. Except as expressly provided for herein, each party shall pay 

all fees, costs and expenses incurred by it with respect to this Agreement, whether or 

not the transactions contemplated hereby are consummated, except for the 

Purchasers’ ability to seek a break-up fee under certain circumstances as provided in 

the Sale Procedures and in paragraph 8.1.1 of this Agreement. In the event that the 

Purchasers are not the successful bidder for the Sale Assets, and if Purchasers are not 

in breach of or default under this Agreement, Sellers shall pay the break-up fee to the 

Purchasers in immediately available funds upon Closing of the sale to another entity.

8.3 Further Assurances. Purchasers and Sellers shall, from time to time after the 

Closing, without further consideration, execute and deliver such instruments and take 

such further actions as may be reasonably necessary or desirable to carry out the 

provisions hereof and the transactions contemplated hereby.

8.4 Notifications. From the date of this Agreement until the earlier of the Closing or the 

termination of this Agreement pursuant to Article 11, Sellers shall give Purchasers 

prompt written notice of the occurrence of any of the following events:

8.4.1 Any loss, taking, condemnation, damage or destruction of or to any of the 

Sale Assets.

8.4.2 The commencement of any proceeding or litigation at law or in equity or 

any other commission, agency or administrative or regulatory body or 

authority against Sellers affecting the Sale Assets.

8.4.3 Any other materially adverse developments with respect to the Sale 

Assets.

8.4.4 Any event, occurrence or fact that causes any of the representations or 

warranties contained in Article 7 to be untrue at any time in any material 

respect; provided, that no disclosure by Sellers pursuant to this section 

shall be deemed to amend or supplement any provision of this Agreement 

or to prevent or cure any misrepresentation, breach of warranty or breach 

of covenant.

9 ARTICLE 9. 

9.1 Conditions Precedent To The Obligations Of Purchasers. The obligation of 

Purchasers to consummate the transactions contemplated herein is subject to the 

satisfaction, at or before the Closing, of each of the following conditions (any of 

which conditions may, subject to Section 4.2, be waived by Purchasers in their sole 

discretion):

9.1.1 The representations and warranties of Sellers contained in this Agreement 

shall be true and correct in all material respects on and as of the Closing 

Date with the same force and effect as though made on the Closing Date. 

Sellers shall have performed and complied in all material respects with all 

covenants and agreements required by this Agreement to be performed or 

complied with by Sellers on or prior to the Closing Date. Excluding any 

objections to the entry of the Sale Approval Order, no action, proceeding 

or investigation (including, without limitation, actions, proceedings or 

investigations commenced or threatened by a governmental authority) has 

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4840-9378-7821.v7 

been commenced or threatened to prevent, or seek damages as a result of, 

the execution and delivery of this Agreement or the consummation of any 

of the transactions contemplated herein (unless such action, proceeding or 

investigation has been dismissed or otherwise disposed of at least seven 

(7) days prior to the Closing Date).

9.1.2 The Bankruptcy Court shall have entered the Sale Approval Order in form 

reasonably satisfactory to Purchasers containing findings that (i) Each 

Purchaser is a “good faith Purchaser” within the meaning of 

Section 363(m) of the Bankruptcy Code and is thereby entitled to the 

protection afforded a good faith, arms’-length Purchasers; (ii) the Purchase 

Price is fair and reasonable; (iii) this Agreement was negotiated at arms’ 

length; and (iv) the sale of the Sale Assets hereunder was conducted in a 

“non-collusive manner” within the meaning of Section 363(n) of the 

Bankruptcy Code, which Sale Approval Order, unless waived by the 

Purchasers, shall not be the subject of (a) a pending appeal, notice of 

appeal, motion to amend or make additional findings of fact, motion to 

alter or amend judgment, motion for rehearing, motion for new trial, or 

any other proceeding challenging the findings, conclusions or relief 

granted by the Bankruptcy Court, (b) a pending motion for stay, or (c) a 

stay in effect.

9.1.3 Purchasers shall have received all documents and other items to be 

delivered by Sellers pursuant to Section 5.1.

9.1.4 No claim, suit, action or other proceeding shall be pending before or by 

any court, governmental agency, arbitrator or other entity against any of 

the parties to this Agreement with respect to the transactions contemplated 

by this Agreement, except for the proceedings conducted in the 

Bankruptcy Court related to and arising out of the Bankruptcy Cases.

9.1.5 Preservation of Assets. Except as otherwise may be ordered by the 

Bankruptcy Court, Sellers shall preserve the Sale Assets in the ordinary 

and usual course of business, consistent with prior practices.

9.1.6 No Material Changes in Sale Assets. Except as otherwise may be 

ordered by the Bankruptcy Court, no action shall be taken by Sellers that 

shall effect the Sale Assets in any material adverse respect, or Purchasers’ 

use of operation of the Sale Assets after the Closing.

9.1.7 Operating Losses. Except as otherwise may be ordered by the 

Bankruptcy Court, Sellers shall fund the operating losses associated with 

the Sale Assets from the effective date of this Agreement to Closing.

9.1.8 Business Operations. Prior to the Closing Date, the Sellers shall maintain 

the level of business operations that is not less than the production shown 

on the Schedules and Exhibits prepared by Protiviti and previously used as 

Exhibits in this Bankruptcy Case.

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9.1.9 Employment Agreement. Bret Anthony Beneche has entered into an 

Employment Agreement which includes a covenant not to compete under 

terms and conditions satisfactory to the Purchasers that would become 

effective upon the Closing.

10 ARTICLE 10. 

10.1 Conditions Precedent To The Obligations Of Sellers. The obligation of Sellers 

to consummate the transactions contemplated herein is subject to the satisfaction, at 

or before the Closing, of each of the following conditions (any of which conditions, 

subject to Section 4.2, may be waived by Sellers in their sole discretion): 

10.1.1 The representations and warranties of Purchasers contained in this 

Agreement shall be true and correct in all material respects on and as of 

the Closing Date with the same force and effect as though made on the 

Closing Date. Purchasers shall have performed and complied in all 

material respects with all covenants and agreements required by this 

Agreement to be performed or complied with by Purchasers on or before 

the Closing Date. 

10.1.2 The Bankruptcy Court shall have entered the Sale Approval Order 

containing findings that (i) Each Purchasers is a “good faith purchaser” 

within the meaning of Section 363(m) of the Bankruptcy Code and is 

thereby entitled to the protection afforded a good faith, arms’-length 

Purchaser; (ii) the Purchase Price is fair and reasonable; (iii) this 

Agreement was negotiated at arms’ length; and (iv) the sale of the Sale 

Assets hereunder was conducted in a “non-collusive manner” within the 

meaning of Section 363(n) of the Bankruptcy Code. 

10.1.3 Sellers shall have received the Purchase Price and other items to be 

delivered by Purchasers pursuant to Section 5.2. 

11 ARTICLE 11. 

11.1 Termination of Agreement. This Agreement may be terminated only as follows: 

11.1.1 By written agreement of Sellers and Purchasers at any time.

11.1.2 By Sellers, if subsequent events demonstrate that the proposed sale is not 

in the best interest of the Sellers’ bankruptcy estate, as determined by the 

Sellers in their reasonable business judgment, which shall be exercised in 

good faith. 

11.1.3 By Sellers or Purchasers, if the Closing shall not have occurred on or 

before February 19, 2020, for any reason other than such party’s breach of 

this Agreement.

11.1.4 By the Sellers, if Purchasers shall have breached or failed to perform in 

any material respect any of its respective representations, warranties, 

covenants or other agreements contained in this Agreement, and such 

breach or failure to perform (i) would give rise to the failure of a condition 

set forth in Section 10.1, and (ii) cannot be or has not been cured prior to 

the date that is five (5) days from the date that Purchasers are notified by 

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4840-9378-7821.v7 

the Sellers of such breach or failure to perform; provided, however, that 

the Sellers shall not have a right to terminate this Agreement under this 

Section 11.1.4 if the Sellers are then in material breach of this Agreement.

11.1.5 By Purchasers, if the Sellers shall have breached or failed to perform in 

any material respect any of its respective representations, warranties, 

covenants or other agreements contained in this Agreement, and such 

breach or failure to perform (i) would give rise to the failure of a condition 

set forth in Section 9.1, and (ii) cannot be or has not been cured prior to 

the date that is five (5) days from the date that the Sellers are notified by 

Purchasers of such breach or failure to perform; provided, however, that 

Purchasers shall not have a right to terminate this Agreement under this 

Section 11.1.5 if Purchasers are then in material breach of this Agreement;

11.1.6 If the transactions contemplated by this Agreement are enjoined, 

restrained, or prohibited by a court or governmental agency;

11.1.7 By Purchasers if Sellers breach their representations or warranties or fail 

to perform their covenants or agreements set forth in this Agreement, 

subject to prior notice and a fifteen (15) calendar day cure period.

11.1.8 Automatically and without any action by either Purchasers or Sellers if the 

Bankruptcy Court approves an offer to sell the Sale Assets to a third party 

other than Purchasers.

11.1.9 By Purchasers or Sellers if the Bankruptcy Court does not enter the Bid 

Procedures Order by 12:00 midnight on January 15, 2020.

12 ARTICLE 12. 

12.1 Survival. The parties hereto agree that the representations and warranties 

contained in this Agreement shall not survive the Closing hereunder, and neither of 

the parties nor any of its respective officers, directors, representatives, employees, 

advisors or agents shall have any liability to the other after the Closing for any breach 

thereof. The parties hereto agree that only the covenants contained in this Agreement 

that are expressly required to be performed at or after the Closing Date shall survive 

the Closing hereunder, and each of the parties hereto shall be liable to the other after 

the Closing Date for any breach thereof.

12.2 Jurisdiction. The parties agree that the Bankruptcy Court shall retain the 

exclusive and sole jurisdiction to resolve any controversy or claim arising out of or 

relating to this Agreement or the implementation or the breach hereof. Sellers and 

Purchasers hereby irrevocably submit and consent to the jurisdiction of the 

Bankruptcy Court, and Purchasers waive sovereign immunity in the Bankruptcy 

Court, for all matters relating to this Asset Purchase Agreement, including the 

enforcement of any terms, conditions, rights or remedies hereunder. Except as 

expressly consented to herein, nothing contained in the Asset Purchase Agreement 

shall be construed as a waiver of any of the Eastern Band of Cherokee Indians’ 

sovereign rights nor sovereign immunity or Kituwah as its wholly owned subsidiary 

or its affiliates.

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4840-9378-7821.v7 

12.3 Notices. All notices, consents or other communications required or permitted 

hereunder shall be given in writing and hand delivered or addressed and sent by 

Federal Express or other recognized overnight courier, or by certified or registered 

mail, postage prepaid, and return receipt requested, as follows or to such other 

address as may hereafter be designated by any party by the giving of notices in 

accordance with this Section 12.3:

Sellers: Bret Berneche cc: Michael Hastings 

[______________] [______________] 

12.3.1 Purchasers: Mark Hubble cc: John H. Small 

[______________] [______________] 

12.3.2 All notices, consents or other communications shall be deemed given 

when actually delivered (in the case of hand delivery by Federal Express 

or other recognized overnight courier) or five days after mailing in 

accordance with this Section 12.3. 

12.4 Governing Law. To the extent not governed by the Bankruptcy Code, this 

Agreement shall be governed by and construed in accordance with the laws of the 

Commonwealth of Virginia, without giving effect to rules governing the conflict of 

laws.

12.5 Waiver. The waiver by a party of a breach of any covenant, agreement or 

undertaking contained herein shall be made only by a written waiver in each case. No 

waiver of any breach of any covenant, agreement or undertaking contained herein 

shall operate as a waiver of any prior or subsequent breach of the same covenant, 

agreement or undertaking or as a waiver of any breach of any other covenant, 

agreement or undertaking. 

12.6 Severability. If any provision of this Agreement shall be held invalid, illegal or 

unenforceable, in whole or in part, the validity, legality, and enforceability of the 

remaining part of such provision, and the validity, legality and enforceability of all 

other provisions hereof or thereof, shall not be affected thereby. 

12.7 Counterparts. This Agreement may be executed in one or more counterparts 

(whether manually signed or by facsimile or other electronic means), each such 

counterpart shall be deemed an original, and all such counterparts shall constitute one 

and the same agreement. 

12.8 Captions; References. The headings, titles or captions of the Articles and 

Sections of this Agreement are inserted only to facilitate reference, and they shall not 

define, limit, extend or describe the scope or intent of this Agreement or any 

provision hereof, and they shall not constitute a part hereof or affect the meaning or 

interpretation of this Agreement or any part hereof. 

12.9 Amendments. This Agreement may not be amended, changed, modified, altered 

or terminated unless the parties hereto agree in writing to such amendment, change, 

modification, alteration or termination. 

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4840-9378-7821.v7 

12.10 Remedies Cumulative; Specific Performance. Except as otherwise expressly 

provided in this Agreement, no remedy herein conferred is exclusive of any other 

available remedy but each and every such remedy shall be cumulative and shall be in 

addition to every other remedy given by agreement or now or hereafter existing at law 

or in equity or by statute. Except as otherwise expressly provided in this Agreement, 

in addition to any and all other remedies that may be available at law, in the event of 

any breach of this Agreement each party shall be entitled to seek specific 

performance of the agreements and obligations hereunder and to such other injunctive 

or equitable relief as may be granted by a court of competent jurisdiction. 

12.11 Binding Nature; Assignment. This Agreement shall be binding upon and inure 

to the benefit of the parties hereto and their respective successors and permitted 

assigns. This Agreement and any of the rights, interest or obligations hereunder may 

be assigned by Purchasers hereto without prior written consent of the other party; any 

such assignment does not relieve any Purchaser from its obligations hereunder. 

Nothing contained herein, express or implied, is intended to confer on any Person 

other than the parties hereto or their successors and assigns, any rights, remedies, 

obligations or liabilities under or by reason of this Agreement. 

12.12 No Third-Party Beneficiaries. This Agreement is a contract solely between 

Purchasers and Sellers. No third-party beneficiaries are intended hereunder and none 

shall be inferred herein; and no party other than Purchasers or Sellers may assert any 

right, make any claim or otherwise attempt to enforce any provision of or under this 

Agreement. 

12.13 Bankruptcy Court Approval. This Agreement is subject to approval by the 

Bankruptcy Court. 

12.14 Time of Performance. Time is of the essence for the performance of their 

respective obligations under this Agreement by each party hereto. 

[signatures on following page] 

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