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A hearing (the "Hearing") 2 for the relief requested in the above-referenced motion will be held before the u.s. Bankruptcy Court. The list of Debtors in these Chapter 11 Cases along with the last four digits of each Debtor's federal tax identification number can be found at www.omnimgt.com.
A hearing (the "Hearing") 2 for the relief requested in the above-referenced motion will be held before the u.s. Bankruptcy Court. The list of Debtors in these Chapter 11 Cases along with the last four digits of each Debtor's federal tax identification number can be found at www.omnimgt.com.
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A hearing (the "Hearing") 2 for the relief requested in the above-referenced motion will be held before the u.s. Bankruptcy Court. The list of Debtors in these Chapter 11 Cases along with the last four digits of each Debtor's federal tax identification number can be found at www.omnimgt.com.
Copyright:
Attribution Non-Commercial (BY-NC)
Formatos disponibles
Descargue como PDF, TXT o lea en línea desde Scribd
Hearing Date and Time: October 6, 2011 at 10:00 a.m.
prevailing Eastern Time
Objection Deadline: September 12, 2011 at 4:00 p.m. prevailing Eastern Time K&E 19269107 James H.M. Sprayregen, P.C. Paul M. Basta Stephen E. Hessler Brian S. Lennon KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, New York 10022-4611 Telephone: (212) 446-4800 Facsimile: (212) 446-4900
Counsel to the Debtors and Debtors in Possession UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ) In re: ) Chapter 11 ) INNKEEPERS USA TRUST, et al., 1 ) Case No. 10-13800 (SCC) ) Debtors. ) Jointly Administered ) NOTICE OF DEBTORS MOTION FOR AUTHORITY TO ENTER INTO SETTLEMENT AGREEMENT WITH NLP FURNITURE INDUSTRIES, INC.1 PLEASE TAKE NOTICE that a hearing (the Hearing) 2 for the relief requested in the above-referenced motion (the Motion), to the extent necessary, will be held before the
1 The list of Debtors in these Chapter 11 Cases along with the last four digits of each Debtors federal tax identification number can be found by visiting the Debtors restructuring website at www.omnimgt.com/innkeepers or by contacting Omni Management Group, LLC at Innkeepers USA Trust c/o Omni Management Group, LLC, 16161 Ventura Boulevard, Suite C, PMB 606, Encino, California 91436. The location of the Debtors corporate headquarters and the service address for their affiliates is: c/o Innkeepers USA, 340 Royal Poinciana Way, Suite 306, Palm Beach, Florida 33480.
2 K&E 19269107 Honorable Shelley C. Chapman, United States Bankruptcy Judge, in Courtroom No. 610 of the United States Bankruptcy Court for the Southern District of New York (the Court), Alexander Hamilton Custom House, One Bowling Green, New York, New York 10004-1408, on October 6, 2011, at 10:00 a.m. prevailing Eastern Time or such other time as counsel may be heard. PLEASE TAKE FURTHER NOTICE that any objections to the Motion: (a) must be in writing; (b) shall conform to the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules), all General Orders of the Court, the Local Rules for the United States Bankruptcy Court for the Southern District of New York, and the Notice, Case Management, and Administrative Procedures [Docket No. 68] (the Case Management Procedures) approved by the Court; (c) shall be filed with the Bankruptcy Court electronically by registered users of the Bankruptcy Courts case filing system (the Users Manual for the Electronic Case Filing System can be found at www.nysb.uscourts.gov, the official website for the Bankruptcy Court); and (d) shall be served so as to be actually received no later than September 12, 2011 at 4:00 p.m. prevailing Eastern Time (the Objection Deadline) by the entities on the Master Service List (as such term is defined in the Case Management Procedures), which is available at www.omnimgt.com/innkeepers, the website maintained by Omni Management Group, LLC, the Debtors notice and claims agent. Only those objections that are timely filed, served, and received will be considered. PLEASE TAKE FURTHER NOTICE that, if no written objection to the Motion has been properly filed and served by the Objection Deadline, the Bankruptcy Court may enter an order approving the Motion without a hearing.
2 All capitalized terms used but otherwise not defined herein shall have the meanings set forth in the Motion.
3 K&E 19269107 New York, New York /s/ Brian S. Lennon Dated: August 29, 2011 James H.M. Sprayregen, P.C. Paul M. Basta Stephen E. Hessler Brian S. Lennon KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, New York 10022-4611 Telephone: (212) 446-4800 Facsimile: (212) 446-4900
Hearing Date and Time: October 6, 2011 at 10:00 a.m. prevailing Eastern Time Objection Deadline: September 12, 2011 at 4:00 p.m. prevailing Eastern Time
K&E 19269107 James H.M. Sprayregen, P.C. Paul M. Basta Stephen E. Hessler Brian S. Lennon KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, New York 10022-4611 Telephone: (212) 446-4800 Facsimile: (212) 446-4900
Counsel to the Debtors and Debtors in Possession UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ) In re: ) Chapter 11 ) INNKEEPERS USA TRUST, et al., 1 ) Case No. 10-13800 (SCC) ) Debtors. ) Jointly Administered )
DEBTORS MOTION FOR AUTHORITY TO ENTER INTO SETTLEMENT AGREEMENT WITH NLP FURNITURE INDUSTRIES, INC. 1
Innkeepers USA Trust and certain of its affiliates, as debtors and debtors in possession (collectively, the Debtors), file this motion (this Motion) for the entry of an order,
1 The list of Debtors in these Chapter 11 Cases along with the last four digits of each Debtors federal tax identification number can be found by visiting the Debtors restructuring website at www.omnimgt.com/innkeepers or by contacting Omni Management Group, LLC at Innkeepers USA Trust c/o Omni Management Group, LLC, 16161 Ventura Boulevard, Suite C, PMB 606, Encino, California 91436. The location of the Debtors corporate headquarters and the service address for their affiliates is: c/o Innkeepers USA, 340 Royal Poinciana Way, Suite 306, Palm Beach, Florida 33480.
2 K&E 19269107 substantially in the form attached hereto as Exhibit A (the Order), authorizing the Debtors to enter into that certain Settlement Agreement, dated July 7, 2011 (the Settlement Agreement), attached hereto as Exhibit B, by and between Debtor Innkeepers USA Limited Partnership (Innkeepers USA LP) and NLP Furniture Industries, Inc., a California corporation (NLP and, together with Innkeepers USA LP, the Parties), regarding a dispute over the proper terms of a purchase of certain furniture and a prior settlement agreement related thereto. In support of this Motion, the Debtors respectfully state as follows: Jurisdiction 1. The United States Bankruptcy Court for the Southern District of New York (the Court) has jurisdiction over this matter pursuant to 28 U.S.C. 157 and 1334. This matter is a core proceeding within the meaning of 28 U.S.C. 157(b)(2). 2. Venue is proper pursuant to 28 U.S.C. 1408 and 1409. 3. The statutory bases for the relief requested herein are section 363 of title 11 of the United States Code (the Bankruptcy Code) and Rules 6004 and 9019(a) of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules). Background 4. On July 19, 2010 (the Petition Date), each of the Debtors filed a petition with the Court under chapter 11 of the Bankruptcy Code (collectively, the Chapter 11 Cases). The Chapter 11 Cases have been consolidated for procedural purposes only and are being jointly administered pursuant to Bankruptcy Rule 1015(b). The Debtors are operating their business and managing their properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. On July 28, 2010, the United States Trustee for the Southern District of New York (the U.S. Trustee) appointed an official committee of unsecured creditors (the Creditors Committee).
3 K&E 19269107 5. On May 19, 2011, the Court entered an order approving the Debtors disclosure statement and solicitation procedures [Docket No. 1441]. On June 29, 2011, the Court entered an order confirming the Debtors plan of reorganization [Docket No. 1804]. Background 6. NLP, a furniture supplier to certain of the Debtors hotels, filed suit against Innkeepers USA LP on January 13, 2009, in San Diego Superior Court Case No. 37-2009- 00081296-CU-BC-CTL, regarding the terms of a quote for certain furniture (the First Lawsuit). On June 26, 2009, NLP and Innkeepers USA LP entered into a written agreement to settle the First Lawsuit (the Original Settlement). 7. After the Parties entered into the Original Settlement, Innkeepers USA LP contended that NLP breached the Original Settlement. As a result, Innkeepers USA LP sued NLP in San Diego Superior Court Case No. 37-2009-00102694-CU-BC-CTL, seeking to enforce the Original Settlement (the Second Lawsuit and, together with the First Lawsuit, the Lawsuits). NLP answered the Second Lawsuit and denied all allegations. 8. The Debtors have a continuing need for the furniture referenced in the Lawsuits, and the Parties settlement negotiations focused on a revised and mutually agreeable quote for that furniture. The Settlement Agreement 9. After good faith, arms-length negotiations, Innkeepers USA LP and NLP entered into the Settlement Agreement to resolve the Lawsuits, consummate a transaction for certain furniture, preserve the Parties ongoing business relationship, and avoid the expense and
4 K&E 19269107 uncertainty of litigation. In substantial part, the Settlement Agreement provides for the following: 2
Innkeepers USA LP will purchase from NLP the items set forth in a quotation, dated June 9, 2011 (the Quotation), at the prices set forth in the Quotation, for a total of $61,496.00, and Innkeepers USA LP will issue a purchase order consistent with the terms of the Quotation (the Purchase Order). 3
Within three days after Court approval of the Settlement Agreement, Innkeepers USA LP will file a Request for Dismissal of the Second Lawsuit with prejudice. The transaction between Innkeepers USA LP and NLP will be governed by the language of the Purchase Order with respect to all aspects of the order not specifically set forth in the revised quotation. Innkeepers USA LP will pay to NLP a down payment of $36,898.00, with the remainder to be paid upon NLPs tender of the completed furniture items to Innkeepers USA LP. Innkeepers USA LP will bear all shipping costs, taxes, duties, and other costs arising from the transport of such furniture. Any furniture not picked up by Innkeepers USA LPs shipper or courier within 30 days of NLPs tender of such furniture will be forfeited, and NLP shall retain, sell, transfer, or otherwise dispose of and/or liquidate such remaining furniture as well as retain such proceeds, if any. The Parties will grant each other mutual releases arising from or connected to the Original Settlement, the Lawsuits, and/or the Parties relationship. Relief Requested 10. By this Motion, the Debtors request the entry of an order (a) authorizing Innkeepers USA LP to enter into the Settlement Agreement and (b) granting such other relief as is just and proper.
2 To the extent the summary of the Settlement Agreement provided herein is inconsistent with the terms of the Settlement Agreement, the Settlement Agreement shall control in all respects. 3 The Quotation is attached as Exhibit A to the Settlement Agreement.
5 K&E 19269107 Basis for Relief I. The Terms of the Settlement Agreement Are Appropriate Under Section 363(b) of the Bankruptcy Code. 11. A debtor may use, sell, or lease property of the estate after notice and a hearing . . . other than in the ordinary course of business . . . . 11 U.S.C. 363(b)(1). The use, sale, or lease of property of the estate, other than in the ordinary course of business, is authorized when there is a sound business reason that justifies such action. See Comm. of Equity Sec. Holders v. Lionel Corp. (In re Lionel Corp.), 722 F.2d 1063, 1071 (2d Cir. 1983). When a valid business justification is articulated, the law vests the debtors decision to use, sell, or lease property out of the ordinary course of business with a strong presumption that in making a business decision the directors of a corporation acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company. See Official Comm. of Subordinated Bondholders v. Integrated Res., Inc. (In re Integrated Res., Inc.), 147 BR. 650, 656 (S.D.N.Y. 1992). The business judgment rule has vitality in chapter 11 cases and shields a debtors management from judicial second-guessing. Id.; see Comm. of Asbestos Related Litigants and/or Creditors v. Johns-Manville Corp. (In re Johns-Manville Corp.), 60 B.R. 612, 615-16 (Bankr. S.D.N.Y. 1986) ([T]he Code favors the continued operation of a business by a debtor and a presumption of reasonableness attaches to a debtors management decisions). 12. Once a debtor articulates a valid business justification for its actions, courts in the Second Circuit give great deference to the substance of the directors decision and will not invalidate the decision, will not examine its reasonableness, and will not substitute its views for those of the board if the latters decision can be attributed to any rational business purpose. In re Global Crossing Ltd., 295 B.R. 726, 744 (Bankr. S.D.N.Y. 2003) (citing Paramount
6 K&E 19269107 Commcns Inc. v. QVC Network Inc., 637 A.2d 34, 45 n.17 (Del. 1994)); In re Johns-Manville Corp., 60 B.R. at 616. Thus, if a debtors actions satisfy the business judgment rule, then the transaction in question should be approved and authorized under section 363(b)(1). 13. The Debtors believe, in their reasonable business judgment, that the proposed resolution of the Lawsuits as set forth in the Settlement Agreement is appropriate under the circumstances. The Debtors believe the consideration provided by each of the Parties pursuant to the Settlement Agreement constitutes a fair resolution of the Parties views and a fair Quotation for the furniture at issue. And the Settlement Agreement allows the Parties to continue their mutually beneficial business relationship. Finally, the Settlement Agreement permits the Debtors to avoid the uncertainty and expense of litigation that would require the investment of time and resources by the Debtors managementtime more appropriately spent focused on the Debtors ongoing efforts to conclude the Chapter 11 Cases. Accordingly, the Debtors respectfully submit that entry into the Settlement Agreement is a sound exercise of the Debtors reasonable business judgment. II. The Court Has the Authority to Approve the Settlement Agreement under Bankruptcy Rule 9019. 14. Bankruptcy Rule 9019(a) provides that [o]n motion by the [debtor in possession] and after notice and a hearing, the court may approve a compromise or settlement. Fed. R. Bankr. P. 9019(a). In granting a motion pursuant to Rule 9019(a), a court must find that the proposed settlement is fair and equitable and in the best interests of the estate. Protective Comm. for Indep. Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 424 (1968); Fisher v. Pereira (In re 47-49 Charles St., Inc.), 209 B.R. 618, 620 (S.D.N.Y. 1997); Airline Pilots Assn, Intl v. Am. Natl Bank and Trust Co. of Chicago (In re Ionospheres Clubs), Inc., 156 B.R. 414, 426 (S.D.N.Y. 1993), affd 17 F.3d 600 (2d Cir. 1994).
7 K&E 19269107 15. The decision to approve a particular settlement lies within the sound discretion of the bankruptcy court. Nellis v. Shugrue, 165 B.R. 115, 122 (S.D.N.Y. 1994). It is the responsibility of the court to examine a settlement and determine whether it falls below the lowest point in the range of reasonableness. Cosoff v. Rodman, (In re W.T. Grant Co.), 699 F.2d 599, 608 (2d Cir. 1983); In re Spielfogel, 211 B.R. 133, 144 (Bankr. E.D.N.Y. 1997). Additionally, a court may exercise its discretion in light of the general public policy favoring settlements. In re Hibbard Brown & Co., 217 B.R. 41, 46 (Bankr. S.D.N.Y. 1998). 16. While a court must evaluate . . . all . . . factors relevant to a full and fair assessment of the wisdom of the proposed compromise, Anderson, 390 U.S. at 424-25, a court need not conduct a mini-trial of the merits of the claims being settled, W.T. Grant Co., 699 F.2d at 608, or conduct a full independent investigation. In re Drexel Burnham Lambert Group, Inc., 134 B.R. 493, 496 (Bankr. S.D.N.Y. 1991). [T]he bankruptcy judge does not have to decide the numerous questions of law and fact . . . . The court need only canvass the settlement to determine whether it is within the acceptable range of reasonableness. Nellis, 165 B.R. at 123 (internal citations omitted). 17. The Debtors respectfully submit that the Settlement Agreement is fair and equitable and in the best interests of the estates. First, the Debtors carefully negotiated the Settlement Agreement at arms length and in good faith. Second, the Debtors believe in their reasonable business judgment that the terms of the Quotation are reasonable. Third, the Debtors have a continuing need for NLPs furniture, and the Settlement Agreement allows the Parties to resume their mutually beneficial business relationship. Finally, as discussed above, the Settlement Agreement allows the Debtors to avoid costly, uncertain litigation that would demand time and resources of the Debtors management and professionals more appropriately spent on
8 K&E 19269107 matters central to the Debtors emergence from chapter 11. Accordingly, the Debtors submit the terms of the Settlement Agreement satisfy the Second Circuits standard for approving a compromise and respectfully request that the Court approve the Settlement Agreement. Motion Practice 18. This Motion includes citations to the applicable rules and statutory authorities upon which the relief requested herein is predicated and a discussion of their application to this Motion. Accordingly, the Debtors submit that this Motion satisfies Rule 9013-1(a) of the Local Bankruptcy Rules for the Southern District of New York. Waiver of Bankruptcy Rule 6004(a) and 6004(h) 19. To implement the foregoing successfully, the Debtors seek a waiver of the notice requirements under Bankruptcy Rule 6004(a) and the 14-day stay of an order authorizing the use, sale, or lease of a property under Bankruptcy Rule 6004(h). The Debtors Reservation of Rights 20. Nothing in the Motion or the Order shall be deemed or construed as: (a) an admission as to the validity or priority of any claim against the Debtors; (b) a waiver of the Debtors rights to dispute any claim; or (c) an approval or assumption of any agreement, contract, or lease pursuant to section 365 of the Bankruptcy Code. Notice 21. The Debtors have provided notice of this Motion consistent with the Confirmation Order [Docket No. 1804], which is available at www.omnimgt.com/innkeepers, the website maintained by Omni Management Group, LLC, the Debtors notice and claims agent. The Debtors respectfully submit that no further notice is necessary.
9 K&E 19269107 No Prior Request 22. No prior motion for the relief requested herein has been made to this or any other court.
K&E 19269107 WHEREFORE, the Debtors respectfully request that the Court enter an order, substantially in the form attached hereto as Exhibit A, granting the relief requested herein and granting such other relief as is just and proper. New York, New York /s/ Brian S. Lennon Dated: August 29, 2011 James H.M. Sprayregen, P.C. Paul M. Basta Stephen E. Hessler Brian S. Lennon KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, New York 10022-4611 Telephone: (212) 446-4800 Facsimile: (212) 446-4900
K&E 19269107 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ) In re: ) Chapter 11 ) INNKEEPERS USA TRUST, et al., 1 ) Case No. 10-13800 (SCC) ) Debtors. ) Jointly Administered ) ORDER APPROVING SETTLEMENT AGREEMENT WITH NLP FURNITURE INDUSTRIES, INC. 1
Upon the motion (the Motion) 2 of the Debtors, as debtors and debtors in possession, for the entry of an order (this Order) (a) authorizing Innkeepers USA LP to enter into the Settlement Agreement and (b) granting such other relief as is just and proper; it appearing that the relief requested is in the best interests of the Debtors estates, their creditors, and other parties in interest; the Court having jurisdiction to consider the Motion and the relief requested therein pursuant to 28 U.S.C. 157 and 1334; consideration of the Motion and the relief requested therein being a core proceeding pursuant to 28 U.S.C. 157(b); venue being proper before this court pursuant to 28 U.S.C. 1408 and 1409; notice of the Motion having been adequate and appropriate under the circumstances; and after due deliberation and sufficient cause appearing therefor, it is HEREBY ORDERED THAT: 1. The Motion is granted to the extent provided herein.
1 The list of Debtors in these Chapter 11 Cases along with the last four digits of each Debtors federal tax identification number can be found by visiting the Debtors restructuring website at www.omnimgt.com/innkeepers or by contacting Omni Management Group, LLC at Innkeepers USA Trust c/o Omni Management Group, LLC, 16161 Ventura Boulevard, Suite C, PMB 606, Encino, California 91436. The location of the Debtors corporate headquarters and the service address for their affiliates is: c/o Innkeepers USA, 340 Royal Poinciana Way, Suite 306, Palm Beach, Florida 33480. 2 All capitalized terms used by otherwise not defined herein shall have the meanings set forth in the Motion.
2
K&E 19269107 2. The Settlement Agreement is approved in all respects. 3. The Debtors are authorized to take all actions necessary to effectuate the relief granted pursuant to this Order in accordance with the Motion. 4. The terms and conditions of this Order shall be immediately effective and enforceable upon its entry. 5. All time periods set forth in this Order shall be calculated in accordance with Bankruptcy Rule 9006(a). 6. This Court retains jurisdiction with respect to all matters arising from or related to the implementation of this Order. New York, New York Dated: ___________, 2011
United States Bankruptcy Judge
K&E 19269107 EXHIBIT B Settlement Agreement
SETTLEMENT AGREEMENT AND RELEASE 1. INTRODUCTION This Settlement Agreement ("Agreement") is made and entered into as of Z ; e ~ ~ 1, 2011 by and between NLP Furniture Industries, Inc., a California corporation ("NLP") on the one hand, and Innkeepers USA Limited Partnership, a Virginia limited partnership ( "Innkeepers") on the other hand. NLP and Innkeepers shall collectively be referred to herein as the "Parties." 2. RECITALS 2.1 WHEREAS, on January 13, 2009, NLP sued Innkeepers in San Diego Superior Court Case No. 37-2009-00081296-CU-BC-CTL. Innkeepers. answered the lawsuit and filed a cross-complaint against NLP ("Underlying Action"); 2.2 WHEREAS, on June 26, 2009, NLP and Innkeepers entered into a written agreement to settle the Underlying Action ("SETTLEMENT"). Pursuant to the SETTLEMENT, both NLP and Innkeepers had certain obligations and duties. The SETTLEMENT also contained standard release language and a waiver of California Civil Code 1542; 2.3 WHEREAS, subsequent to the Parties entering into the SETTLEMENT Innkeepers contended that NLP breached the SETTLEMENT. Innkeepers also asserted that provisions of the SETTLEMENT violated California Civil Code 3275 and were fotfeiture provisions; 2.4 WHEREAS, on November 23, 2009 Innkeepers sued NLP in San Diego Superior Court Case No. 37-2009-00102694-CU-BC-CTL asserting legal theories related to the SETTLEMENT ("LAWSUIT"). NLP answered the LAWSUIT and denied all allegations; 2.5 WHEREAS, on July 19, 2010 (the "Petition Date"), Innkeepers (and its affiliates) commenced voluntary cases (the "Chapter 11 Cases") under Title 11 of the United States Code (the "Bankruptcy Code") in the United States Bankruptcy Court for the Southem District of New York (the "Bankruptcy Court"), Case No. 10-13800, and are continuing to operate their business and manage their properties as debtors in possession pursuant to Sections 1107 and 1108 of the Bankruptcy Code. Subsequent to the bankruptcy filing, Innkeepers amended the LAWSUIT and added Innkeepers USA Debtor in Possession as a plaintiff in the LAWSUIT asserting legal theories against NLP; and 2.6 WHEREAS, the Parties now intend by this Agreement to completely and forever resolve any and all claims, disputes and/or obligations between one another related to the SETTLEMENT, the LAWSUIT and the Pruiies' relationship, as well as any P:00643710:86016.009 1 other claims, demands, losses, damages, costs, attorneys' fees, expenses, compensation, actions, and causes of action (contingent, accrued, known, unknown, inchoate or otherwise) against each other on the terms and conditions stated herein: 2.7 WHEREAS, the Parties have determined that, subject to the Bankruptcy Court's approval, it is in the best interests of the Parties to enter into this Agreement to effectuate the compromise and resolution of the Lawsuit on the terms set forth herein. NOW, THEREFORE, for valuable consideration, the Parties agree as follows: 3. AGREEMENT 3.1 Incorporation Of Introduction/Recitals The Introduction and Recitals described in Sections 1 and 2 of this Agreement are hereby incorporated into the Agreement. 3.2 Effective Date of the Agreement The Agreement shall become effective upon approval by the Bankruptcy Court administering the Chapter 11 Cases (the "Effective Date") 3.3 Terms Innkeepers will purchase from NLP the items and quantities of items set forth in the revised quotation dated June 9, 2011 at the prices set forth in the revised quotation. A true and correct copy of the revised quotation is attached to this Agreement and labeled Exhibit A. Upon execution of this Agreement, Innkeepers will issue a purchase order consistent with the terms of the revised quotation. Innkeepers can either increase or decrease its order by up to twenty (20) percent of the quantity reflected in the revised quotation for any or all items with the per unit pricing remaining the same. After Innkeepers issues the purchase order, the transaction between Innkeepers and NLP will be governed by the language of Innkeepers' purchase order with respect to all aspects of the order not specifically set forth in the revised quotation. Upon execution of this Agreement, Innkeepers shall pay to NLP a down payment of $36,898.00, with the remainder to be paid upon NLP's tender of the completed furniture items to Innkeepers by making those units available to Innkeepers' shipper or courier of choice. Within three (3) days after the Bankruptcy Court has approved this settlement, Innkeepers will file a Request for Dismissal of the LAWSUIT with prejudice. Upon entry of an order approving this Agreement, all proofs of claim asserted on NLP's behalf in the Chapter 11 Cases, if any, shall be deemed disallowed and expunged in their entirety without further need for any actions by Innkeepers or further Bankruptcy Court approval. NLP will be deemed to have satisfied its obligations under this section upon releasing the furniture to Innkeepers' designated shipper or courier, and Innkeepers will assume all risk of damage or loss commencing upon such release. Innkeepers will bear P:00643710:86016.009 2 all shipping costs, taxes, duties and other costs arising from the transport of such furniture. Any furniture not picked up by Innkeepers' shipper or courier by within 30 days of NLP's tender of such furniture shall be forfeited, and NLP shall retain, sell, transfer or otherwise dispose of and/or liquidate such remaining furniture as well as retain such proceeds, if any. 3.4 Mutual Release In consideration of all of the terms and conditions of this Agreement, the Parties, each acting on behalf of themselves, their insurers, beneficiaries, predecessors, successors, assigns, and representatives, affiliates and agents, hereby mutually release and forever discharge each other, each other's predecessors, successors, assigns, partners, consultants, employees, parents, subsidiaries, officers, directors, principals, agents, representatives, and all persons, firms, associations or corporations connected with them, including, without limitation, their insurers, title insurers, lenders, sureties and attorneys, who are, or may ever become, liable to them, of and from any and all the claims, demands, causes of action, obligations, damages, losses, costs, fees, other damages incurred and expenses of every kind and nature whatsoever, known or unknown, fixed or contingent, arising from, or in any way connected to the SETTLEMENT, the LAWSUIT and the Parties relationship 3.5 Waiver Of California Civil Code Section 1542 The Parties have read and understand Section 1542 of the California Civil Code. The Parties expressly waive any benefits under that Section, as it might pertain to claims or defenses arising out of this matter, said section provides that: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him must have materially affected his or her settlement with the debtor. This waiver of claims under Civil Code Section 1542 does not apply to (1) any future claims arising out of breaches of this Agreement. 3.6 No Assignment of Rights The Parties, and each of their successors, represent and warrant that they are the sole and rightful owners of all rights, title, and interest in every claim, property interest, or other matter which the Parties have transferred or released herein, and have not assigned or otherwise transferred any interest in any claim which the Parties may have against each other, nor have they made any contracts or agreements to assign, or otherwise transfer, any interest in any such claim or property interest, nor are they aware of any pending claim, encumbrance, or cause of action that could, in any manner, affect the transfers or releases herein contemplated. P:0064371 0:86016.009 3 3. 7 No Admission This Agreement represents a compromise of disputed claims and is not, and shall not be construed as, an admission by any party hereto of any liability whatsoever, all liability being expressly denied. Further, this Agreement, and all prior communications leading up to it, shall not in any event constitute, be construed as, be deemed to be evidence of, or a concession by either party of any liability, improper conduct, or wrongdoing whatsoever on their respective parts. 3.8 Arm's Length Agreement This Agreement is a compromise and settlement of the disputed claims and is the product of arm's length negotiations. It is entered into without prejudice and is not intended, nor shall it be construed, as an interpretation of any other matter in any court, arbitration, or other dispute resolution proceeding to create, prove, or interpret the obligations of any of the Parties. 3.9 Parties To Bear Their Own Costs And Fees The Parties agree to bear their own costs and attorneys' fees in resolving the disputes and obligations arising from, or in any way connected to this Agreement, the SETTLEMENT, the LAWSUIT, and the Parties' relationship. 3.10 Future Cooperation The Parties agree to perform any acts and to execute any documents consistent with the terms and conditions of this Agreement which may reasonably be needed, desired or required to effectuate the terms, conditions and provisions hereof. 3.11 Independent Investigation It is expressly agreed and understood by the Parties that they have carefully read this Agreement, that they understand its terms, that they have had the opportunity to seek legal advice with respect to this Agreement, and that they have relied wholly, upon their own judgment and knowledge, and have not been influenced to any extent whatsoever in making this Agreement by any representations or statements made by any other party, or anyone acting on behalf of any other party, except as expressly contained in this Agreement. Further, each of the Parties have independently investigated all the material facts related to this AGREEMENT and have not relied on any representations or statements made by any other party. P:00643710:86016.009 4 3.12 Ambiguities The Parties warrant and represent that any statute or rule of construction that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement. 3.13 Headings The headings of the paragraphs of this Agreement have been included only for convenience and shall not be deemed in any manner to modify or limit any of the provisions of this Agreement or to be used in any manner in the interpretation of this Agreement. 3.14 Effective Date This Agreement may be signed in one or more counterparts, each of which shall be deemed an original. A facsimile signature shall be deemed binding on the Parties. This Agreement shall be deemed fully executed and effective when all Parties have executed. at least one of the counterparts, even though no single counterpart bears all such signatures. In the event that this Agreement is executed separately by each of the Parties on different dates, the effective date of this Agreement shall be the latest of the execution dates. 3.15 Severability Should any provision of this Agreement be declared or determined by any court to be illegal or invalid, the validity of the remaining parts, terms or provisions shall not be affected by said illegal or invalid part, term or provision, and shall be deemed not to be a part of this Agreement. 3.16 Authority The Parties warrant and represent that the person executing this Agreement on their behalf has actual authority to execute this Agreement and to bind that party to the terms of this Agreement. 3.17 Choice Of Law This Agreement shall be governed by and construed in accordance with the laws of the State of California. 3.18 Venue Each of the Parties agrees to submit to the exclusive jurisdiction of the Bankruptcy Court for any action to enforce or interpret this Agreement. P:00643710:86016.009 5 3.19 Prior Understandings This Agreement contains the entire agreement between the Parties with respect to the subject matter herein, and supersedes all prior understandings, agreements, representations and warranties. This Agreement may not be amended, supplemented, or discharged except by an instrument in writing signed by all the settling Parties, and no waiver of any provision hereof, including this paragraph, shall be effective unless in writing and signed by all the settling Parties. 3.20 Attorney Fees The Parties agree that should any claims, disputes, actions, arbitration, litigation, etc., be initiated by any of the Parties to this Agreement against another party to this Agreement arising out of the matters discussed or contained in this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees, costs, and expert expenses consistent with California Civil Code section 1717 and applicable case law interpreting said statute. 3.21 Effect of Bankruptcy To the extent that Innkeepers or anyone on its behalf makes a payment or payments as part of this settlement to NLP, and such payment or payments are subsequently avoided or ordered to be returned or disgorged as preferential or fraudulent pursuant to applicable state and/or federal insolvency law, then NLP's release shall be null and void ab initio and its claims against Innkeepers shall be deemed revived. 3.22 Limitation of Liability NLP shall not be responsible or liable for any indirect, incidental, consequential, special, exemplary, or punitive damages that may arise out of this Agreement or the sale of goods contemplated by it (including, but not limited to, loss of use or property, goodwill, revenue or profits, or business interruption}, even if NLP, its affiliates, or any of its or its representatives has been advised of the possibility of such damages. Ill Ill Ill P:0064371 0:86016.009 6 I 305-933-3024 12:49:41 p.m. 07-11-2011 3.23 Successors and Assigns This Agreement is and shall be binding upon and shall inure to the benefit of the Parties, their respective subsidiaries, parents, assigns, ofiicers, directors, shareholders, and all other related entities, as well as their respective representatives, agents, partners, servants, employees, insurers, managers, members, attorneys, predecessors, successors, heirs and assigns. IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the latest date written below. Dated: July .::1_, 2011 Innkeepers USA Limited Partnership
y\i\ ... ,,._ Its: vP 6f- eJ<"tr"' f'i"'J,..,tr Dated: July..::;__, 2011 tries, Inc. P:00643710:860 16.009 7 EXHIBIT A
Furniture. 1425 Corporate Center Drive Sulte200 San Diego, CA 92154
QuoteTo: Hampton Inn Naples, FL United States Quotation Please Fax Approvals and/or Purchase Orders to 619-66151n or sales@nlpfurniture.com Quote Number: Quote Date: Customer: Salesman: Ship Via: FOB:
12970 06109111 BWC0500 Mark Beelaert Best Way San Diego Expires: 09107111 Project Name: Innkeepers, Hampton Inn Naples Fabric lnduded 810 Week lead time upon receipt of DEPOSIT, APPROVALs &. ALL COMs REVISION 1 P.a.l1 Contact: Inquiry: Terms: Phone: FAX: JWI! Rlls.c.rtRl!Qil 1 DESKCHAIR 2 Swivel Task Chair Fabricate Style#: Custom Item#: ST-100 Dimensions: 25.25"W X 27"0 X 36"-39"H X 18"-21"SH X 24"-27"AH Back: Tight upholstered back wl welt at sides Seat: Tight upholstered seat w. pneumatic lift Arms: Plastic curved arms; must be coordinated with the clearance under the desk chair heights, must not be locked Into an adjustable height position for the arms to clear the desk. Fabric Status: NLP 3 YDS per unit - Fabric: Hunter Douglas I Vortex I #8 Wind Valley Forge I Windy Curve 21951-DMM Repeat: 9.54''V, 14.2"H Content: 100% Eco-lntelligent Polyester Foam: Standard 1.8 Density to meet TB 117 Welt: %" Self welt Leg: 5-Star base wl casters Finish: Black arms, base & casters SIDE CHAIR Gina Gordon 50 % Dep - BAL CBD (303) 530-3885 (303) 530-3959
109 33 $195.00 lEA $195.00 /EA P.a.rt Jt.ero 3 4 5 Side Chair Fabricate Style#: custOm Item#: ST-200 Dimensions: 19'WX 23.25"D X 33.75"H X 19"SH Back: Exposed wood headrest wl tight upholstered back wl welt at top perimeter Seat upholstered seat wl welt at perimeter Fabric Status: NLP 1.75 YDS per unit -Fabric: Deslgntex I TaUored Stripe 2763-102 I Chesterfield Brown Repeat 4. 75"V Content 65% Polyester, 35% Cotton Fabric: Valley Forge I Stripe Canyon I 369-DMM Repeat: 4.75"V Content: 52% Polyester, 13% Rayon, 36% Cotton Railroaded: Yes Foam: Standard 1.8 Density to meetTB 117 Welt: %"Self welt Leg: Exposed wood tapered legs Stretchers: Side stretchers only Finish: To match Wllsonart 7943-07 Columbian Wslnut L&P FULL SLEEPER Full Sleeper Fabricate Style #: Custom Item#: ST-301 Dimensions: 62"W X 37"D X 36.5"H X 20.5"SH X 26.5"AH Back: Tight upholstered back wl vertical seam In the middle as shown seat: 2 Loose reversible box style seat cushions Apron: Tight upholstered apron Arms: Tight upholstered arms Mechanism: L&P 3500 Seiies Classic Sq. Tube Mattress: Standard Innerspring Fabric Status: NLP 15.25 YDS per unit -Fabric: Fabricut I Tharp-L I Tidepaol Repeat: NIA Content: 64% Polyester, 36% Viscose Fabric: Valley Farge I New Harbor Plaza Texture 2 I 825-DMM Repeat NIA Content 100% Polyester Foam: Standard 1.8 Density to meetTB 117 Leg: Exposed woad wedged legs Finish: To match Wilsonart 7943-07 Columbian Walnut PILLOW . PHI ow Fabricate Cast included In Sleeper Price Style#: Standard Item#: ST-301-P Dimensions: 18'WX 18"H Type: Square throw pillow wl welt at perimetr Fabric Status: NLP .75YDS per unit Foam: Standard 1.8 Density to meet TB 117 Welt %" Self welt Fabric Info Missing LOUNGE CHAIR Lounge Chair Fabricate Style #: Custom Item#: ST-500 Dimensions: 30"W X 32"D X 35"H X 20.5"SH X 26.5"AH Back: Tight upholstered back wl pull detaU at headrest as shown Seat: Loose reversible box style seat cushion Apron: Tight upholstered apron Arms: Tight upholstered arms Fabric Status: NLP 7.75 YDS per unit Fabric: Fabricut I Tharp-L I Tidepaol Repeat: NIA Content 64% Polyester, 36% Viscose Fabric: Valley Forge I New Harbor Plaza Texture 2 I 825-DMM Repeat NIA Content 100% Polyester Foam: Standard 1.8 Density to meet TB 117 Leg: Exposed wood tapered legs Finish: To match Wllsonart 7943-07 Columbian Walnut 21 $599.00 /EA 42 $25.00 lEA 58 $299.00 /EA P.a.rt !II.UJ\1\lft Jt.8J\1 P.e.s.c.rtRtJql) 6 OTTOMAN 7 Ottoman Fabricate Style #: Custom Item #: ST -600 Dimensions: 36"W X 22"0 X 19"H Seat: Tight upholstered w/ button tuft In center. IJVIth stitching that runs up comers and meets at center forming an "X" Fabric Status: NLP 3 YDS per unit - Fabric: Valley Forge I Feather 1 B-OOM Repeat N/A Content 100% Polyurethane Foam: Standard 1.8 Density to meetTB 117 Leg: Exposed wood tapered feet w/ hidden casters Finish: To match Wilsonart 7943-07 Columbian Walnut FREIGHT Freight- This cost is a quoted estimate only. The actual charge may vary. The customer Is responsible to pay for any additional shipping and handling costs which will be billed. Total: '$1/RE: All items sh/pp/17f11.0 CB/ifomla ate subject 1.0 the appropriate County or Qty Sales Tax. Quotes do not Include Safes Tax. tax added 1.0 the ffna/ price once a quots becomes an order and a ffnaf "SHIP TO" address Is prollfded. JN ORDER TO EXPEDM YOUR OROER,PLEASE VERJFYTHATTHE FOLLOWING ITEMS ARE INCLUDED ON YOUR PURCHASE ORDER: * PROJECT NAME * SIDEMARK INFO * SHIP TO ADDRESS * BILL TO INFORMATION INCLUDING CONTACT * ORDER REQUIRED DATE * VERIFIED QUANTITlES * VERIFIED DIMENSIONS AND SPECIFICATIONS * DETAILED PHOTOS, SKETCHES OR UNE DRAWINGS * FABRIC VENDOR NAME(s), FABRIC NAME, REPEAT, CONTENTS & COUNTRY OF ORIGIN * TOTAL YARDS ORDERED AND EXPECTED * EXPECTED COM FABRIC ARRIVAL DATE TO FACTORY. * FINISH SAMPLES, OR COLOR SAMPLES IF APPUCABLE. P.r!c;e. $135.00 /EA $0.00 /EA $61,496.00 The attached Terms and Conditions are incorporated by reference to and made an Integral part of" the Quote. The quote Is conditiOned upon the customer's agreement to NLP's Terms and Conditions and, by accepting the quote (or issuing a purchase order), the customer agrees to the Terms and Conditions and the tErms of the transaction will be exclusively as set forth In NLP's Terms and Conditions and Acknowledgement (notwithstanding anything to the contrary In the customer's purchase order). All prices are contingent upon final quantities at time order is placed. Please advise! * Please include a copy of this SIGNED quote with your purchase order for efficient processing. * All applicable sales tax will be reflected on final invoice * * All orders shipped via 3rd Party freight are subject to local sales tax. Thank you for the opportunity to bid on your project! Part Number !!!!!! DescriRt!on By Marcela Carrizosa-Leal NLP Furniture Industries, Inc. !!NLP Furniture. TERMS & CONDmONS The following terms and conditions apply to the transaction between you (''you," the "purchaser" or the "customer") and NLP Furniture Industries, Inc. (''NLP," "us" "our" or "we"), and are an integral part of the agreement concerning such transaction: PRICES Our catalog and list prices are subject to change without notice. DESIGN AND SPECIFICAllONS All designs and specifications are subject to change without notice. Any item or material may be discontinued without notice. Ali weights and dimensions are approximate. QUOTAllONS All quotations received from us, the factory or representatives are valid for a period not to exceed ninety (90) days unless otherwise provided or revised. PLACING ORDERS All orders must have the following Information: Item number, quantity, dimensions, finish, fabric vendor name, pattern and color, fabric repeat, contents, fabric origin, delivery routing, collect or third party freight and desired shipping date. If you have established an open account with us, you may place an order with us by providing your order In writing (by mail, email or fax). If you have not established an open account with us, you may place an order with us by providing your order in writing (by mall, emall or fax) together with a fifty percent (50%) deposit. You must also pay the balance due on your order before the desired shipping date stated in your order. LEADllME We require at least six to eight weeks for production time for tnllne upholstered furniture, and 1012 weeks for production time for custom upholstered items, from the later of date of we receive your deposit and receive of fabric, final approvals and submittals, Including approved finish samples, approved drawings and change orders for fabrication. NLP Furniture will not be responsible for delays caused by overdue deposit payment, specification delays, fabric receipt delays, finish, and submittal approvals. ACCEPTANCE All orders are subject to our acceptance and will only be deemed accepted by us If we provide a written confirmation or acceptance to you. Notwithstanding anything to the contrary In any order or acceptance (I) all orders are subject to these terms and conditions, and (ii) where these terms and conditions conflict with the terms and conditions of your order or our confirmation, the terms and conditions contained in these terms and conditions will govern and determine the rights of the parties. PRICING AND SHIPPING All our published and quoted prices are based on FOB Destination. Prices and quotes are subject to change without notice. Prices include packaging for blanket wrap shipment only. Prices do not include cartoning, crating, freight, delivery, installation or taxes. If we have agreed to ship the order to you, you must accept shipment without delay or condition. SAMPLES We will charge you approximately two times the quantity production unit price for custom samples. One-half of the charged price will be credited back to you upon receipt of your full order. NLP C'ustom sample designs are copyrighted by NLP. All rights are reserved. ACCOUNT TERMS Open account terms are 1% 10 days, Net 30 (meaning, specifically, that if you pay our invoice within 10 calendar days of issuance, you Will receive a one percent (1 %) discount and, if not, then the entire invoice is due within 30 calendar days of Issuance). If you have an open account With us, we reserve to the right to terminate your open account status at any time. All deposits and payments must be made payable to "NLP Furniture Industries, Inc." and sent to 1425 Corporate Center Drive, Suite 200, San Diego, CA 92154. Payments can also be wired. Please contact our accounting department for wiring instructions. Any outstanding balance not paid in full within thirty calendar days is subject to Interest at the greater of (I) 1.5% per month, or (ii) the maximum interest rate permitted under applicable law. The customer will also be liable for any costs P:004573&1.3:86016.002 NLP Fumlt!Jre Industries, Inc. Terms and conditions @ 2009
Furniture. Incurred In collection of past due amounts lndudlng attorney's fees and costs. Our collection of such Interest and/or collection costs Is without prejudice to or waiver of our other rights under these terms and conditions or applicable law. NEW OPEN ACCOUNTS To establish an open account, please submit a bank reference, four (4) current open account references and a statement of financial responsibility. Send full credit information along with complete address and telephone numbers to our corporate offices. Please allow approximately two weeks for processing. We reserve the right to grant or deny all open account requests at our sole and absolute discretion. All new accounts require a 50 percent deposit with the order and the balance to be paid in full prior to shipment NO DEDUCIIONS AND OFFSETS All invoiced amounts are due as Invoiced without deduction or offset. HELD ORDERS- WILL CALL Unless otherwise agreed In writing, you or your carrier must pickup your order from our warehouse within ten (10) calendar days of our completion of your order. Our agreement to hold your order for any period of time will not serve to extend the due date of your payment of our Invoice. If we hold a completed order for more than ten (10) days, you will pay a storage charge of $50 dollars per day (and this charge will be assessed without prejudice to or waiver of our other rights under these terms and conditions or applicable law). Absent a written agreement to the contrary, any completed orders not retrieved by you or your carrier within thirty (30) days of our notice to you may be permanently disposed of by us at our sole. and absolute discretion (and Without prejudice to or waiver of our right to full payment from you for your order or our other rights under these terms and conditions or applicable law). ACKNOWLEDGMENTS Your order will not be deemed accepted by us unless we send you a written acknowledgement. You are responsible for comparing our acknowledgment to the purchase order to ensure that all Information regarding style, quantity, dimensions, fabrics, finish, prices, shipping, and other Information meet your expectations. Unless you object In writing within three (3) calendar days of the date of our acknowledgment (the "Notification Period''), our written acknowledgement, together with these terms and conditions, are the complete and final terms of our transaction. DIMENSIONS All dimensions are approximate and may vary from those listed In the price list, catalog, purchase order or acknowledgement. CANCELLAnONS AND CHANGES All products are custom built In accordance with the Information and specifications on the acknowledgement. Orders cannot be canceled or changed after the Notltlcatlon Period. Any requests to cancel or modify your order will not be honored and will not alter your liability for full payment of the price set forth on the acknowledgement. RESALE NLP sells through its sales representatives only. If you are purchasing Items to resell, we require your State Resale Tax number (seller's permit number) to be deposited on file In our main office for all sales within the State of california and out of state where applicable. Sales made without a resale number (or that are otherwise subject to sale tax) will be charged the appropriate sales tax as required by law. COM FABRICS If you or your agent select or provide fabrics or other COM (Customers Own Material), you are providing such materials to us with your assurance that they are appropriate for the Intended use or comply with applicable codes and regulations in each applicable jurisdiction. We will not Inspect such materials and make no representation, warranty or other claims with respect to them. NLP spedtlcally disclaims any responsibility for any defects that may arise In the use of COM. These include, but are not limited to: wearability, fitness for use, colorfastness, fading, shrinking, stretching, unraveling, seam slippage, cleanabllity, flammability, discoloration or any other problem previously known or heretofore unknown that may arise from the use of such materials. Purchaser agrees to indemnity, defend and hold NLP harmless for any claims, expenses, losses or liabilities (including expenses and reasonable attorney's fees) made against NLP directly or Indirectly relating to or arising from any COM.
Except as otherwise provided In writing, all prices do not indude upholstery and assume COM (Customer's own Material). All yardages quoted are net, for standard 54" wide plain material. Extra allowance should be made for direction, cuts, pattern match, damages, etc. and quantities of less than 50 pieces. P:00457384.3:86016.002 NLP fiJmitllre Industries, Inc. Terms and COnditions IS> 2009 ~ ~ N L P Furniture. Fabrics requiring pattern match or other special handling causing additional labor costs will require an additional charge and additional yardage requirements. We ask that you submit a sample of the fabric to be used for quotation and yardage. Due to the many variables of fabrics, we cannot guarantee yardage estimates. NLP does not warranty any fabrics. Our suppliers dalm that the foam and filling materials provided to us meet California Bulletin 117 specifications for fire retardancy as standard. CMHR foam, California Bulletin 133 barrier doth and fabric treatments are available for an extra cost. Please verify the need or requirements of your project and see our Price List or call your Sales Representative for a quote. WARRANTY,DAMAGEANDINDEMNnY If we custom build furniture for you, including without limitation providing any Item of furniture in accordance with your plans, pictures, diagrams or other Instructions, you represent and warrant that you have obtained on our behalf (and at no cost or expense to us) all rights and licenses required for us to build, sell and distribute such furniture. All NLP products are sold with a limited warranty against defects In materials and workmanship for a period of one year from the date of shipment In normal contract use. This warranty does not extend to any COM nor does It extend to any damage caused by shipping, misuse, abuse, excessive use, or ordinary wear and tear. No warranty whatsoever Is made or implied for any loss of use, loss of revenue or for any upholstery fabric. Exposed wood frames are guaranteed against defective workmanship for one year. Sofa and lounge chair frames are warranted for five years. All warranty service work will be done at our factory, on-site by a factory certified technician, or by a NLP certified upholstery or refinishing company. In the event the repair should be done at our factory, the customer would be responsible for shipping charges to the factory. The warranty Is valid only for manufacturer's speCified use. We . reserve the option to repair or replace any damaged Items, not Including upholstery fabric, if reupholstery is required. EXCEPT AS PROVIDED ABOVE, NLP MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS PROVIDED INCLUDING, WITHOUT LIMITAllON, WITH RESPECT TO DESIGN, CONDmON, OR QUALITY, MERCHANTABILITY, NON-INFRINGEMENT, OR mNESS, CAPACITY, OR DURABILITY FOR ANY PAR11CULAR PURPOSE OR USE, AND YOU ACCEPT SUCH PRODUCTS AND "AS IS" AND "WITH ALL FAULTS." IN NO EVENT WILL NLP BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, OR USE, INCURRED BY CUSTOMER OR ANY OTHER PARTY (WHETHER BASED UPON CONTRACT, TORT, NEGLIGENCE, WARRANTY, PRODUCT LIABILITY, STRICT LIABILITY, AND/OR OTHERWISE AND W!'IETHER OR NOT NLP HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE). You will indemnify, defend and hold NLP and each of its officers, directors, employees, representatives and agents harmless from and against any and all personal Injury, property damage, liability, claims, causes of action, judgments, losses, damages, and expenses (including, but not limited to, reasonable attorneys' fees and expenses) relating to or arising from (I) any action, claim or proceeding arising from or relating to your or any third party's use of any product provided by NLP, (II) your breach of any provision of these terms and conditions, or (iii) your breach of representation or warranty. CLAIMS/RETURNS All claims for workmanship defects, shortages and errors must be made within 3 days after receipt of the merchandise to the Project Coordinator (PC) assigned to the project. Any repairs or claims must be documented In writing accompanied by photographs and sent to PC on the project. Payments will not be made for unauthorized repairs. Failure to make a claim within this periOd of time constitutes acceptance of the merchandise and a waiver of claims. All merchandise is inspected before shipping. All merchandise Is signed for by the freight company, stating that the Items have been picked up in good condition. Third party shippers have sole responsibility for any damage, loss or shortages incurred during transit. Purchasers or their receiving warehouses must inspect the items upon arrival and make claims for any damage, loss or shortages directly to the carrier. NLP Is not responsible for any freight related claims, but will reasonably assist the purchaser at no cost to NLP in this process. No merchandise can be returned to NLP without NLP's prior written consent Unauthorized returns will be reshipped to the location of origin freight collect NLP's liability on any claim of any kind, lndudlng loss or damage resulting from or in connection with the manufacture, sales, delivery, resale, repair or use of any item covered by or supplied under these terms and conditions of sale shall in no case exceed the price of the item(s) which give rise to the claim. In case of dispute, all matters shall be resolved under the laws of the state of California. Any action for breach of this agreement must be made within one year after the sale. P:00457384.3:86016.002 NIP FurnitUre Indusllles, Inc. Tenns and COndiUons C> 2009 ~ ! N L P Furniture. FINISHES Woods and veneers have inherent disparities in color and grain pattern and NLP does not warranty color, grain, or texture of wood or veneers. Applying a dear, non-colored finish does not allow for staining, shading, nor uniforming that would otherwise provide a more consistent, uniform appearance. Matching of the graining or natural coloration of the wood with a dear finish is neither implied nor guaranteed. While our catalyzed finish system contains W inhibitors, protection is afforded to the coating not the substrate. Hence the Alder or Maple substrate when finished in Clear Satin will have a tendency to "brown or yellow out" when exposed to direct sunlight. We use a minimum of 3 coats: sealer, stain and lacquer; sanded between coats. Special finishes are available at additional cost. Please submit a sample for quote. CUstom finish samples will be provided on request at a charge of $125.00 on all orders less than 100 chairs. Rnishes are an approximation and will naturally vary slightly with specific wood lots and grain. FREIGHT All shipments are dock to dock. NLP may arrange for third party billing on freight charges for customers with open accounts but will assume no responsibility for collection of freight charges or damages caused in freight Delivery date is subject to change due to strikes, accidents, weather, availability of supplies and labor, economic conditions and other causes beyond our immediate control. NLP may stop and or hold shipment if payment terms, account status or credit status are not satisfactory. SHIPPING Plastic Bagged - Blanket Wrapped- STANDARD. Cartoning and crating is additional. FREIGHT CLAIMS AND REPAIRS All sales are made FOB Destination. Title to the product passes to the purchaser upon pick up of the products by the carrier. You or your agent must carefully Inspect all the products prior to pick up at our factory or upon delivery and must alert us to any claims or damages no later than three days after receipt by you, your agent, or warehouse or storage facility. NLP will not accept any claims for freight, warehousing or installation damage. Customers should carefully inspect all merchandise upon arrival and make claims for damage to the carrier immediately. The costs of field repairs or adjustments performed by non-authorized personnel by NLP will not be reimbursed unless previously authorized by a supervisor in writing. MISCELLANEOUS This transaction between you and NLP will be governed by and construed in accordance with the laws of the State of California. The venue for any proceeding pertaining to the transaction or these terms and conditions will be exclusively in the state and federal courts located in San Diego, California, In the event any litigation, arbitration, mediation, or other proceeding ("Proceeding") is Initiated by any party against any other party) to enforce, interpret or otherwise obtain judicial or quasi-judicial relief in connection with these terms and conditions or other aspect of this transaction, the prevailing party in such Proceeding will be entitled to recover from the unsuccessful party all costs, expenses, actual attorney's and expert witness fees, relating to or arising out of (a) such Proceeding (whether or not such Proceeding proceeds to judgment), and (a) any post-judgment or post-award proceeding including without limitation one to enforce any judgment or award resulting from any such Proceeding. Any such judgment or award will contain a specific provision for the recovery of all such subsequently incurred costs, expenses, actual attorney's and expert witness fees. P:004S7384.3:86016.002 NLP FUrnitUre Industrles, Inc. Terms and COnditiOns 2009