PURCHASE AGREEMENT AND BILL OF SALE
PURCHASE
AGREEMENT AND XXXX OF SALE
This
PURCHASE AGREEMENT AND XXXX OF SALE, dated as of September 23,
2008
(this “Xxxx
of Sale”)
is
made and executed between Xxxxxxx Cleaners, Inc., an Indiana corporation (the
“Seller”)
and
USDC Xxxxxxx Indiana, Inc., a California corporation (the “Purchaser”).
WITNESSETH
WHEREAS,
the Seller, as debtor and debtor in possession, has filed a voluntary petition
(the “Petition”)
for
relief pursuant to Chapter 11 (“Chapter
11”)
of
Title 11 of the United States Code, 11 U.S.C. §§ 101 et seq. (as amended, the
“Bankruptcy
Code”),
in
the United States Bankruptcy Court for the District of Delaware (together with
any other court having proper jurisdiction, the “Bankruptcy
Court”)
(the
“Bankruptcy
Case”);
and
WHEREAS,
the Seller has agreed to sell and the Purchaser has agreed to purchase the
Purchased Assets (as defined below) on the terms and conditions set forth herein
and as authorized under section 363 of the Bankruptcy Code, and the Order
Establishing Procedures for Sale of Certain Miscellaneous Assets Outside of
the
Ordinary Course of Business Free and Clear of All Liens, Claims and Encumbrances
Pursuant to Section 363 of the Bankruptcy Code entered
by the Bankruptcy Court on September 18, 2008 [D.I. 330] (the “Miscellaneous
Asset Sale Order”),
and
the Seller has determined that a sale in accordance with section 363 of the
Bankruptcy Code is in the best interests of its creditors and interest holders.
NOW,
THEREFORE, for good and valuable consideration to the Seller receipt of which
is
hereby acknowledged, the Seller and the Purchaser, intending to be legally
bound
hereby, agree as follows:
1. Sale
of Purchased Assets.
The
Seller hereby assigns, grants, sells, transfers, and delivers to the Purchaser,
its successors and assigns, forever all of the Seller’s right, title and
interest in and to all of the assets identified on the attached Schedule A
(the
“Purchased
Assets”).
2. Payment
of Purchase Price.
Contemporaneous with the execution of this Xxxx of Sale by the Purchaser, the
Purchaser shall deliver the purchase price for the Purchased Assets in the
amount of $16,000 (the “Purchase
Price”)
to the
Seller by either certified check or wire transfer.
3. “As
Is
Where Is” Transaction.
The
Purchaser hereby acknowledges and agrees that the Seller makes no
representations or warranties whatsoever, express or implied, with respect
to
any matter relating to the Purchased Assets. Without in any way limiting the
foregoing, the Seller hereby disclaims any warranty (express or implied) of
merchantability or fitness for any particular purpose as to any of the Purchased
Assets. The Purchaser further acknowledges that the Purchaser has conducted
an
independent inspection and investigation of the physical condition of the
Purchased Assets and all such other matters relating to or affecting the
Purchased Assets as the Purchaser deemed necessary or appropriate and that
in
proceeding with the Purchaser’s acquisition of the Purchased Assets, the
Purchaser is doing so based upon such independent inspections and
investigations. Accordingly, the Purchaser will accept the Purchased Assets
“AS
IS” and “WHERE IS”.
4. Conditions
Precedent.
The
sale of the Purchased Assets pursuant to this Xxxx of Sale is subject to the
notice, objection and sale approval procedures provided in the Miscellaneous
Asset Sale Order.
5. Removal
of the Purchased Assets.
Unless
the Purchaser has made other arrangements with the landlord where the Purchased
Assets are located (the “Removal
Location”),
the
Purchaser (i) shall remove any Purchased Assets from the Removal Location in
a
xxxxxxx-like manner that shall prevent damage to the Removal Location and (ii)
if, despite use of Purchaser’s reasonable efforts to prevent any damage to the
Removal Location, any damage is caused to the Removal Location by Purchaser
or
Purchaser’s agents as a result of removal of any Purchased Assets from the
Removal Location, Purchaser shall (x) repair or cause to be repaired any and
all
such damage to the Removal Location and (y) indemnify and hold Seller harmless
from any and all costs, expenses, and liabilities that may arise as a result
of
Purchaser’s failure to repair or cause to repaired any and all such damage to
the Removal Location. The Purchaser shall remove any Purchased Assets from
the
Removal Location before September 30, 2008 if Purchaser has not made other
arrangements with the landlord of the Removal Location.
6. No
Rights in Third Parties.
Nothing
expressed or implied in this Xxxx of Sale is intended to or shall confer upon
any party, other than the Purchaser and the Purchaser’s successors and assigns,
any rights, remedies, obligations, or liabilities under or by reason of this
Xxxx of Sale.
7. Successors
and Assigns.
This
Xxxx of Sale shall bind and inure to the benefit of the Seller, the Purchaser,
and their respective successors and permitted assigns.
8. Governing
Law.
This
Xxxx of Sale shall be governed by and construed in accordance with the laws
of
the State of Delaware, without giving effect to principles of conflicts of
law.
IN
WITNESS WHEREOF, the parties have caused this Xxxx of Sale to be duly executed
as of the day and year first above written.
Xxxxxxx Cleaners, Inc. | ||
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By: | /s/ | |
Name:
Title:
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USDC Xxxxxxx Indiana, Inc. | ||
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By: | /s/ | |
Name:
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Schedule
A