AGREEMENT, IT IS UNDERSTOOD AND
AGREED THAT, UNLESS EXPRESSLY STATED HEREIN, SELLERS ARE NOT MAKING AND HAS NOT
AT ANY TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER,
EXPRESS OR IMPLIED, WITH RESPECT TO THE PURCHASED ASSETS, INCLUDING BUT NOT
LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
(b)
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER
ACKNOWLEDGES AND AGREES THAT, UPON THE CLOSING, SELLERS SHALL SELL AND CONVEY TO
PURCHASER, AND PURCHASER SHALL ACCEPT, THE PURCHASED ASSETS "AS IS, WHERE IS,
WITH ALL FAULTS." PURCHASER HAS NOT RELIED AND WILL NOT RELY ON, AND SELLERS ARE
NOT LIABLE FOR OR BOUND BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTEES,
STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PURCHASED ASSETS OR
RELATING THERETO MADE OR FURNISHED BY SELLERS OR THEIR REPRESENTATIVES, TO
WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, EXCEPT AS
EXPRESSLY STATED HEREIN. PURCHASER ALSO ACKNOWLEDGES THAT THE TOTAL PURCHASE
PRICE REFLECTS AND TAKES INTO ACCOUNT THAT THE PURCHASED ASSETS ARE BEING SOLD
"AS IS, WHERE IS, WITH ALL FAULTS."
19
(c)
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SUBJECT TO
OBTAINING THE SALE ORDER, PURCHASER WAIVES ANY CLAIM ARISING OUT OF OR IN
CONNECTION WITH THE VALIDITY AND CONDITION OF THE PURCHASED ASSETS AS OF THE
CLOSING.
ARTICLE VI.
[Reserved]
ARTICLE VII.
BANKRUPTCY COURT MATTERS
7.1
Approval of Break-Up Fee and Overbid Protection.
Subject to the entry of the Bidding Procedures Order, in consideration for
Purchaser having expended considerable time and expense in connection with this
Agreement and the negotiation hereof and the identification and quantification
of assets of Sellers, Sellers shall pay to Purchaser promptly upon the effective
date of termination of this Agreement in accordance with, and only to the extent
provided in, the provisions of Section 3.5, the payment of a break-up fee of
3.5% of the total cash Purchase Price (the "Break-Up Fee"). In addition, the
Bidding Procedures Order shall provide for an initial overbid protection in the
amount of one hundred thousand dollars ($100,000) over and above the aggregate
of the Purchase Price and the Break-Up Fee, and minimum bid increments
thereafter of Fifty Thousand Dollars ($50,000) (the "Overbid Protection"). The
obligations of Sellers to pay the Break-Up Fee (i) shall be entitled to
administrative expense claim status under Sections 503(b)(1)(A) and 507(a)(2) of
the Bankruptcy Code, (ii) shall not be subordinate to any other administrative
expense claim against the Sellers, other than as provided by any administrative
expense claims to which SunTrust Bank, N.A. is entitled pursuant to any
Bankruptcy Court order or otherwise and any other adequate protection order in
existence at the time the Break-Up Fee are approved, and (iii) shall survive the
termination of this Agreement in accordance with Section 3.6. The Bidding
Procedures Order shall approve the Break-Up Fee as set forth in this paragraph.
7.2
Competing Bid and Other Matters.
(a)
Within seven days of the Agreement Date, Sellers shall file with
the Bankruptcy