11.3
Cooperation on Tax Matters
55
11.4
FIRPTA Certificate
55
11.5
Tax Refunds
55
ARTICLE XII.
MISCELLANEOUS
56
12.1
Payment of Expenses
56
12.2
Survival of Representations and Warranties; Survival of Confidentiality
56
12.3
Entire Agreement; Amendments and Waivers
56
12.4
Execution of Agreement; Counterparts; Electronic Signatures
56
12.5
Governing Law
56
12.6
Jurisdiction, Waiver of Jury Trial
57
12.7
Notices
57
12.8
Binding Effect; Assignment
58
12.9
Severability
58
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12.10
Bulk Sales Laws
59
12.11
Access and Right to Use
59
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INDEX OF EXHIBITS
EXHIBIT A
FORM OF BILL OF SALE EXHIBIT B
FORM OF ASSIGNMENT AND ASSUMPTION
AGREEMENT EXHIBIT C
FORM OF ASSUMPTION AND ASSIGNMENT OF LEASES EXHIBIT D
IP
ASSIGNMENT AND ASSUMPTION AGREEMENT EXHIBIT E
BIDDING PROCEDURES ORDER EXHIBIT
F
SALE ORDER EXHIBIT G
FORM OF SUPPORT AGREEMENT
INDEX OF SCHEDULES
SCHEDULE 1.1
STORE LOCATIONS SCHEDULE 1.1(B)
ASSIGNED CONTRACTS SCHEDULE
1.1(C)
EXCLUDED ACCOUNTS RECEIVABLES SCHEDULE 1.1(D)
EXCLUDED CASH AND CASH
EQUIVALENTS SCHEDULE 1.1(F)
ACQUIRED OWNED REAL PROPERTY SCHEDULE 1.1(G)
ACQUIRED BUILDINGS SCHEDULE 1.1(H)
ASSUMED LEASED REAL PROPERTY SCHEDULE
1.1(I)
EXCLUDED TANGIBLE ASSETS RELATING TO THE BUSINESS SCHEDULE 1.1(V)
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENTS SCHEDULE 1.1(W)
ASSUMED PLANS
SCHEDULE 1.1(BB)
CLAIMS AND RIGHTS RELATED TO EXCLUDED ASSETS SCHEDULE 1.2(K)
GOB STORE LOCATIONS SCHEDULE 1.2(M)
DEPOSITS AND PRE-PAID AMOUNTS SCHEDULE
1.3(C) -
TRADE PAYABLES SCHEDULE 1.3(D)
OPEN PURCHASE ORDERS SCHEDULE 1.3(F)
ADDITIONAL TRADE PAYABLE LIABILITIES
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SCHEDULE 1.4(R)
ADDITIONAL EXCLUDED LIABILITIES SCHEDULE 1.6(A)
ASSIGNED
CONTRACTS SCHEDULE 4.2
NOTICES, FILINGS AND CONSENTS SCHEDULE 4.3(A)
CONFLICTS WITH ORGANIZATIONAL DOCUMENTS SCHEDULE 4.3(B)
CONSENTS SCHEDULE
4.3(C)
COMPLIANCE EXCEPTIONS SCHEDULE 4.4
BROKERS AND FINDERS SCHEDULE
4.6(A)
LEASED REAL PROPERTY SCHEDULE 4.6(B)(i)
OWNED REAL PROPERTY SCHEDULE
4.6(B)(ii)
OWNED BUILDINGS SCHEDULE 4.7
PERSONAL PROPERTY LEASES SCHEDULE
4.8
PURCHASED INTELLECTUAL PROPERTY SCHEDULE 4.9
LITIGATION SCHEDULE 4.11(D)
INVENTORY HELD ON CONSIGNMENT SCHEDULE 4.13(A)
EXTENSIONS OF TIME SCHEDULE
4.13(E)
MATERIAL TAX PROCEEDINGS SCHEDULE 4.13(F)
TAX SHARING AGREEMENTS AND
LIABILITIES SCHEDULE 4.14(B)
EMPLOYEE ACTIONS SCHEDULE 4.14(C)
BENEFIT PLANS
SCHEDULE 4.15(A)
LABOR AGREEMENTS, ORGANIZATIONS, RECOGNITIONS AND
REPRESENTATIONS SCHEDULE 4.15(F)
EMPLOYMENT AND CONSULTING AGREEMENTS SCHEDULE
4.16
BANK ACCOUNTS SCHEDULE 4.20
ENVIRONMENTAL MATTERS SCHEDULE 4.22(B)
CHANGES IN THE BUSINESS SCHEDULE 5.4(B)
PURCHASER CONSENTS SCHEDULE 6.1(B)
BASE COMPENSATION/ WAGE RATE INCREASES
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SCHEDULE 8.1(A)
CHANGES TO COMPENSATION/BENEFITS AND BONUSES SCHEDULE 8.1(C)
REMOVAL OF ASSETS OR INVENTORY SCHEDULE 8.1(I)
RELATED PARTY TRANSACTIONS
SCHEDULE 8.1(Q)
AGREEMENTS TO CONSTRUCT OR REMODEL STORES
-iii-
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement"), dated as of June 17, 2013 (the
"Agreement Date"), by and among Orchard Supply Company, LLC, a Delaware limited
liability company ("Purchaser") and one or more other persons designated by the
Purchaser (collectively, the "Purchaser Designees"), and Orchard Supply Hardware
Stores Corporation, a Delaware corporation (the "Company"), Orchard Supply
Hardware LLC, a Delaware limited liability company and OSH Properties LLC (each
a "Company Subsidiary" and collectively, the "Company Subsidiaries", and,
together with the Company, each a "Seller" and collectively, the "Sellers").
Purchaser and the Sellers are collectively referred to herein as the "Parties"
and individually as a "Party". For