Common use of Auction Process Clause in Contracts

Auction Process. The Auction process shall be conducted by the Investment Bank and the Non-Participating Members (or, if there are no Non-Participating Members, then the independent Managers of the Company, if any). The Company and each Member shall, and each Member shall cause each of its Affiliates to, use its or his commercially reasonable efforts in good faith to assist the Investment Bank and the Non-Participating Members (or, if there are no Non-Participating Members, then the independent Managers of the Company, if any) in the conduct of the Auction and the consummation of a sale of all of the Auctioned Equity, including in the hiring of outside advisors (other than the Investment Bank), the identification of potential bidders, the preparation of an information memorandum regarding the Company (including financial statements and financial projections relating thereto), the preparation of bid procedures and a bid procedures letter to be distributed to potential bidders, the assembly of a data room, the making of management presentations, the drafting, negotiation and execution of transaction documents (including the schedules, exhibits, appendices, annexes and ancillary documents thereto), the closing of the transaction (including the obtaining of applicable approvals, consents and waivers), and the equal and fair treatment of all potential bidders. Unless the Preferred Members otherwise mutually agree, the deadline for the receipt of bids in the Auction (the “Bid Deadline”) shall be a date that is no later than 180 days following the last day of the Negotiation Period. If all Preferred Members are Participating Members, then any bid involving the direct or indirect participation of any Preferred Member or any Affiliate of any Preferred Member shall be submitted by the Bid Deadline in last-and-best offer form and may not be later modified to “top” other bids. Such restriction shall be reflected in the bid procedures letter distributed to potential bidders.

Auction Process. The Auction process shall be conducted by the Investment Bank and the Non-Participating Members that are Series A1 Preferred Members (or, if there are no Non-Participating Members that are Series A1 Preferred Members, then the independent Managers of the Company, if any). The Company and each Member shall, and each Member shall cause each of its Affiliates to, use its or his commercially reasonable efforts in good faith to assist the Investment Bank and the Non-Participating Members that are Series A1 Preferred Members (or, if there are no Non-Participating Members, then the independent Managers of the Company, if any) in the conduct of the Auction and the consummation of a sale of all of the Auctioned Equity, including in the hiring of outside advisors (other than the Investment Bank), the identification of potential bidders, the preparation of an information memorandum regarding the Company (including financial statements and financial projections relating thereto), the preparation of bid procedures and a bid procedures letter to be distributed to potential bidders, the assembly of a data room, the making of management presentations, the drafting, negotiation and execution of transaction documents (including the schedules, exhibits, appendices, annexes and ancillary documents thereto), the closing of the transaction (including the obtaining of applicable approvals, consents and waivers), and the equal and fair treatment of all potential bidders. Unless the Series A1 Preferred Members otherwise mutually agree, the deadline for the receipt of bids in the Auction (the “Bid Deadline”) shall be a date that is no later than 180 days following the last day of the Negotiation Period. If all Series A1 Preferred Members are Participating Members, then any bid involving the direct or indirect participation of any Preferred Member or any Affiliate of any Preferred Member shall be submitted by the Bid Deadline in last-and-best offer form and may not be later modified to “top” other bids. Such restriction shall be reflected in the bid procedures letter distributed to potential bidders.

Auction Process. The parties hereto acknowledge and agree that during the period commencing on the date hereof and ending on the date that any auction contemplated by the Bidding Procedures Order is declared closed by the Seller (the "Auction process Period"), Seller and its Affiliates, officers, directors, employees, attorneys, investment bankers, accountants and other agents and representatives shall be conducted by permitted, but shall not be permitted at any time thereafter, to (i) market and solicit offers for the Investment Bank Acquired Assets and the Non-Participating Members may issue press releases, place advertisements or make other releases or disclosures in connection therewith, (orii) solicit inquiries, if there are no Non-Participating Membersproposals, then the independent Managers of the Company, if any). The Company and each Member shalloffers or bids from, and each Member shall cause each of its Affiliates tonegotiate with, use its or his commercially reasonable efforts in good faith to assist the Investment Bank and the Non-Participating Members (or, if there are no Non-Participating Members, then the independent Managers of the Company, if any) in the conduct of the Auction and the consummation of a sale of all of the Auctioned Equity, including in the hiring of outside advisors (any Persons other than the Investment Bank), the identification of potential bidders, the preparation of an information memorandum regarding the Company (including financial statements and financial projections Buyer relating thereto), the preparation of bid procedures and a bid procedures letter to be distributed to potential bidders, the assembly of a data room, the making of management presentations, the drafting, negotiation and execution of transaction documents (including the schedules, exhibits, appendices, annexes and ancillary documents thereto), the closing of the transaction (including the obtaining of applicable approvals, consents and waivers), and the equal and fair treatment of all potential bidders. Unless the Preferred Members otherwise mutually agree, the deadline for the receipt of bids in the Auction (the “Bid Deadline”) shall be a date that is no later than 180 days following the last day of the Negotiation Period. If all Preferred Members are Participating Members, then any bid involving the direct or indirect participation sale, transfer or other disposition, in one or more transactions, of all or substantially all of the Acquired Assets or the equity interests of the Seller and (iii) take any Preferred Member other affirmative action (including entering into any agreement or letter-of-intent with respect thereto) to cause, promote or assist with any such transaction with a third party (together with the transactions described in clause (ii) above, an "Alternative Transaction"); provided, however, the Seller and its Affiliates may enter into, and seek Bankruptcy Court approval of, a definitive agreement with respect to an Alternative Transaction only if such Alternative Transaction is a Superior Transaction. Without limiting the foregoing, during the Auction Period, the Seller and its Affiliates and their respective officers, directors, employees, attorneys, investment bankers, accountants and other agents and representatives shall be permitted to supply information relating to the Seller and the Acquired Assets to prospective purchasers. Except as set forth in Sections 2.8 and 8.3, neither the Seller nor any of its Affiliates shall have any liability to the Buyer, either under or relating to this Agreement or any Affiliate Applicable Law, by virtue of any Preferred Member entering into or seeking Bankruptcy Court approval of such definitive agreement for an Alternative Transaction pursuant to this Section 5.17 or for failure to comply with the obligations in Section 5.16. The Seller and the Buyer agree to comply in all material respects with the terms of the Bidding Procedures Order and agree that to the extent there is a conflict between this Agreement and the Bidding Procedures Order, the Bidding Procedures Order shall govern in all respects. Seller shall declare the Auction Period closed not later than September 19, 2005. Notwithstanding the foregoing but subject to the Buyer’s rights under Section 5.16 of this Agreement, the Buyer’s remedies for a failure of the Auction Period to end on September 19, 2005 shall be submitted by either (i) to seek specific performance of this Section 5.17 and the Bid Deadline Bidding Procedures Order or (ii) to terminate this Agreement in last-and-best offer form and may not be later modified to “top” other bids. Such restriction shall be reflected in the bid procedures letter distributed to potential biddersaccordance with Section 8.1(j).

Auction Process. The parties hereto acknowledge and agree that during the period commencing on the date hereof and ending on the date that any auction contemplated by the Bidding Procedures Order is declared closed by the Seller (the "Auction process Period”), Seller and its Affiliates, officers, directors, employees, attorneys, investment bankers, accountants and other agents and representatives shall be conducted by permitted, but shall not be permitted at any time thereafter, to (i) market and solicit offers for the Investment Bank Acquired Assets and the Non-Participating Members may issue press releases, place advertisements or make other releases or disclosures in connection therewith, (orii) solicit inquiries, if there are no Non-Participating Membersproposals, then the independent Managers of the Company, if any). The Company and each Member shalloffers or bids from, and each Member shall cause each of its Affiliates tonegotiate with, use its or his commercially reasonable efforts in good faith to assist the Investment Bank and the Non-Participating Members (or, if there are no Non-Participating Members, then the independent Managers of the Company, if any) in the conduct of the Auction and the consummation of a sale of all of the Auctioned Equity, including in the hiring of outside advisors (any Persons other than the Investment Bank), the identification of potential bidders, the preparation of an information memorandum regarding the Company (including financial statements and financial projections Buyer relating thereto), the preparation of bid procedures and a bid procedures letter to be distributed to potential bidders, the assembly of a data room, the making of management presentations, the drafting, negotiation and execution of transaction documents (including the schedules, exhibits, appendices, annexes and ancillary documents thereto), the closing of the transaction (including the obtaining of applicable approvals, consents and waivers), and the equal and fair treatment of all potential bidders. Unless the Preferred Members otherwise mutually agree, the deadline for the receipt of bids in the Auction (the “Bid Deadline”) shall be a date that is no later than 180 days following the last day of the Negotiation Period. If all Preferred Members are Participating Members, then any bid involving the direct or indirect participation sale, transfer or other disposition, in one or more transactions, of all or substantially all of the Acquired Assets or the equity interests of the Seller and (iii) take any Preferred Member other affirmative action (including entering into any agreement or letter-of-intent with respect thereto) to cause, promote or assist with any such transaction with a third party (together with the transactions described in clause (ii) above, an "Alternative Transaction”); provided, however, the Seller and its Affiliates may enter into, and seek Bankruptcy Court approval of, a definitive agreement with respect to an Alternative Transaction only if such Alternative Transaction is a Superior Transaction. Without limiting the foregoing, during the Auction Period, the Seller and its Affiliates and their respective officers, directors, employees, attorneys, investment bankers, accountants and other agents and representatives shall be permitted to supply information relating to the Seller and the Acquired Assets to prospective purchasers. Except as set forth in Sections 2.8 and 8.3, neither the Seller nor any of its Affiliates shall have any liability to the Buyer, either under or relating to this Agreement or any Affiliate Applicable Law, by virtue of any Preferred Member entering into or seeking Bankruptcy Court approval of such definitive agreement for an Alternative Transaction pursuant to this Section 5.17 or for failure to comply with the obligations in Section 5.16. The Seller and the Buyer agree to comply in all material respects with the terms of the Bidding Procedures Order and agree that to the extent there is a conflict between this Agreement and the Bidding Procedures Order, the Bidding Procedures Order shall govern in all respects. Seller shall declare the Auction Period closed not later than August 30, 2005. Notwithstanding the foregoing but subject to the Buyer’s rights under Section 5.16 of this Agreement, the Buyer’s remedies for a failure of the Auction Period to end on August 30, 2005 shall be submitted by either (i) to seek specific performance of this Section 5.17 and the Bid Deadline Bidding Procedures Order or (ii) to terminate this Agreement in last-and-best offer form and may not be later modified to “top” other bids. Such restriction shall be reflected in the bid procedures letter distributed to potential biddersaccordance with Section 8.1(j).