Common use of Bankruptcy Court Approval of Sale Procedures Clause in Contracts

Bankruptcy Court Approval of Sale Procedures. Promptly following the Execution Date (and in no event later than ten (10) business days thereafter), Seller will file with the Bankruptcy Court (and personally serve counsel for the official creditors' committee, the members of the official creditors' committee, the creditors listed on the 20 largest list, all creditors requesting special notice and all other parties required by law to receive such notice) a motion (the "Sale Procedure Motion"), in form and substance acceptable to Buyer, for an order (the "Procedure Order") from the Bankruptcy Court which provides that: (i) if (x) this Agreement has not been terminated (a) due to a breach by Buyer or (b) by Buyer due to the failure of the condition set forth in Section 4.2.8 and (y) the Bankruptcy Court enters its order approving the sale of the Property (or any material portion thereof) to any party other than Buyer, Seller will on the next business day following entry of such order pay to Buyer a flat fee payment (not dependent on amounts actually expended or incurred by Buyer) in cash or other immediately available good funds in the amount of $1,500,000 (the "Break-Up Fee"); (ii) all third party offers to be considered at the hearing on the Sale Motion (as defined below in Section 8.4.2 below) shall be in writing and delivered to Seller and Buyer no later than forty-eight (48) hours prior to such hearing, together with satisfactory evidence of such third party's financial ability to perform its obligations under such offer and shall be accompanied by a deposit of $1,500,000; which funds such third party shall agree may be used by Seller to pay the Break-Up Fee to Buyer in the situation described in clause (i) above; (iii) no prospective purchaser will be permitted to bid at the Hearing on the Sale Motion unless such party has been deemed "financially qualified" by Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital ("HLHZ"), Seller's investment banker; (iv) no prospective purchaser who bids for the Property at the hearing on Buyer's acquisition of the Property shall be entitled to purchase the Property unless such prospective purchaser offers to purchase the Property for consideration which is at least $4,000,000 greater than the consideration set forth in this Agreement (including all cash, non-cash consideration and assumed liabilities) and otherwise on terms at least as favorable to Seller as those set forth in this Agreement, and (v) after any initial overbid, all further overbids must include cash increments of at least $1,000,000. Should overbidding take place, Buyer shall have the right, but not the obligation, to participate in the overbidding and to be approved as the overbidder at the hearing on the Sale Motion based upon any such overbid. If the Bankruptcy Court approves a sale to Buyer based on an overbid by Buyer, Buyer shall receive credit against the purchase price in the amount of the Break-Up Fee. Should an overbidder other than Buyer be approved at the hearing on the Sale Motion, Buyer shall, the day after such hearing and concurrently with the payment of the Break-Up Fee to Buyer, deliver to the person designated by Seller all reports, studies and the like materials obtained by Buyer from third party consultants in connection with Buyer's due diligence investigation. (i) the Bankruptcy Court declines to enter the Procedure Order, or (ii) the Procedure Order is not entered on or before the date which is 20 days following the Execution Date (the "Procedure Order Entry Period"), then in either such event, Buyer shall have the right, upon written notice delivered to Seller not later than two (2) business days following the earlier of the declination of the Court or expiration of the Procedure Order Entry Period to terminate this Agreement. Delivery of such notice of termination may be made by facsimile addressed to counsel for Seller. If Buyer timely gives written notice of termination, this Agreement and the transactions contemplated herein shall terminate and Buyer and Seller shall be relieved of any further liability or obligation hereunder other than the obligation to pay to Buyer the Deposit (together with interest) pursuant to Section 2.1(b). Should Buyer decline to timely deliver to Seller written notice of termination, Buyer shall conclusively be deemed to have waived the condition provided for in this Section 8.4. 1. Upon the timely entry of the Procedure Order in form and substance acceptable to Buyer, the condition set forth in this Section 8.4.1 shall be deemed satisfied.

Bankruptcy Court Approval of Sale Procedures. Promptly following the Execution Date date hereof (and in no event later than ten one (101) business days Business Day thereafter), Seller will file with the Bankruptcy Court (and personally serve counsel for the official creditors' committee, the members of the official creditors' committee, the creditors listed on the 20 largest list, all creditors requesting special notice and all other parties required by law to receive such notice) a motion (the "Sale SALE PROCEDURE MOTION") with the Bankruptcy Court requesting the entry of the Bidding Procedure Motion")Order (i) fixing the time, in form date, and substance acceptable to Buyer, for an order location of a hearing (the "Procedure OrderAPPROVAL HEARING") to approve Seller's consummation of this Agreement, (ii) fixing the time and date of an auction (the "AUCTION") to be held one to three days before the Approval Hearing at which higher and better offers may be presented to Seller, (iii) providing that if Seller receives from a third party a higher and better offer at the Auction, and such third party offer is subsequently approved by the Bankruptcy Court which provides that: and closes as provided by its terms or does not close and Seller is entitled to retain such third party's deposit, then Purchaser will be entitled to receive from Seller (iw) if (x) this Agreement has not been terminated (a) due to a breach by Buyer or (b) by Buyer due to the failure of the condition set forth in Section 4.2.8 and (y) the Bankruptcy Court enters its order approving the sale of the Property (or any material portion thereof) to any party other than Buyer, Seller will on the next business day following entry of such order pay to Buyer a flat fee payment (not dependent on amounts actually expended or incurred by BuyerPurchaser) in cash or other immediately available good funds in the amount of $1,500,000 2,000,000, (x) reimbursement of Purchaser for its actual expenses incurred in connection with this transaction, up to a maximum of $500,000, including, without limitation, coach airfare and reasonable travel expenses, outside legal, accounting and other professional fees and expenses, costs incurred in Purchaser's due diligence investigation of Seller's expenses, costs incurred in connection with obtaining financing commitments and (y) all management fees and other amounts owed pursuant to the Interim Management Agreement (including but not limited to outstanding invoices for Merchandise shipped by one or more affiliates of Purchaser to Seller after the Effective Date)(collectively the "BreakBREAK-Up FeeUP FEE"); (ii) all third party offers to be considered at the hearing on the Sale Motion (as defined below in Section 8.4.2 below) , which payments shall be in writing and delivered made to Seller and Buyer no later than forty-eight (48) hours prior to such hearing, together Purchaser concurrently with satisfactory evidence the consummation of such third party's financial ability party sale or termination if Seller is permitted to perform its obligations under such offer and shall be accompanied by a deposit of $1,500,000; which funds such third party shall agree may be used by Seller to pay the Break-Up Fee to Buyer in the situation described in clause retain their deposit, (i) above; (iiiiv) no prospective purchaser will be permitted to bid at the Hearing on the Sale Motion Auction unless such party has been deemed "financially qualified" by Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital ("HLHZ"), Sellerthe Official Committee's investment banker; advisors, BDO Xxxxxxx LLP (ivv) no prospective purchaser who bids for the Property Purchased Assets at the hearing on Buyer's acquisition of the Property Auction shall be entitled to purchase the Property Purchased Assets unless such prospective purchaser (a) posts a $3 million deposit; (b) offers to purchase the Property Purchased Assets for consideration which is at least $4,000,000 greater than the consideration set forth in this Agreement (including all cash, non-cash consideration and assumed liabilities) by at least the sum of (x) the Break-Up Fee plus (y) $1.5 million, and otherwise on terms at least as favorable to Seller as those set forth in this Agreement, and (v) after any initial overbid, all further overbids must include cash be in increments of at least $1,000,000500,000.00. Should overbidding take place, Buyer Purchaser shall have the right, but not the obligation, to participate in the overbidding and to be approved as the overbidder at the hearing on the Sale Motion Approved Hearing based upon any such overbid. If Following the Bankruptcy Court approves a sale filing of the Sale Procedure Motion, Seller shall use its best efforts to Buyer based on an overbid by Buyer, Buyer shall receive credit against obtain the purchase price in the amount of Bidding Procedures Order. Seller agrees that the Break-Up Fee. Should an overbidder Fee is in the best interests of Seller and its estate, among other than Buyer be approved at reasons, because the hearing on the Sale Motion, Buyer shall, the day after such hearing and concurrently with the payment establishment of the Break-Up Fee to Buyer, deliver to enhanced the person designated by Seller all reports, studies bidding process and aided in establishing the like materials obtained by Buyer from third party consultants highest possible purchase price; and aided in connection negotiating with Buyer's due diligence investigationPurchaser the highest possible bid for the assets. (i) the Bankruptcy Court declines to enter the Procedure Order, or (ii) the Procedure Order is not entered on or before the date which is 20 days following the Execution Date (the "Procedure Order Entry Period"), then in either such event, Buyer shall have the right, upon written notice delivered to Seller not later than two (2) business days following the earlier of the declination of the Court or expiration of the Procedure Order Entry Period to terminate this Agreement. Delivery of such notice of termination may be made by facsimile addressed to counsel for Seller. If Buyer timely gives written notice of termination, this Agreement and the transactions contemplated herein shall terminate and Buyer and Seller shall be relieved of any further liability or obligation hereunder other than the obligation to pay to Buyer the Deposit (together with interest) pursuant to Section 2.1(b). Should Buyer decline to timely deliver to Seller written notice of termination, Buyer shall conclusively be deemed to have waived the condition provided for in this Section 8.4. 1. Upon the timely entry of the Procedure Order in form and substance acceptable to Buyer, the condition set forth in this Section 8.4.1 shall be deemed satisfied.

Bankruptcy Court Approval of Sale Procedures. Promptly following the Execution Date (and in no event later than ten (10) Within three business days thereafter)of the date hereof, Seller Sellers will file with the Bankruptcy Court (and personally serve counsel for the official creditors' committee, the members of the official creditors' committee, the creditors listed on the 20 largest list, all creditors requesting special notice and all other parties required by law to receive such notice) a motion (the "Sale Procedure Motion")motion, in form and substance acceptable reasonably satisfactory to the Buyer, for an order (the "Procedure Order") from with the Bankruptcy Court which provides that: (i) if (x) this Agreement has not been terminated (a) due to a breach by Buyer or (b) by Buyer due to requesting the failure entry of an order setting forth the condition set forth in Section 4.2.8 and (y) the Bankruptcy Court enters its order approving procedures for the sale of the Property (or any material portion thereof) to any party other than Buyer, Seller will on the next business day following entry of such order pay to Buyer a flat fee payment (not dependent on amounts actually expended or incurred by Buyer) in cash or other immediately available good funds in the amount of $1,500,000 Sellers’ assets (the "Break-Up Fee"“Sale Procedures Order”); . Sellers shall use commercially reasonable efforts to ensure that the Sale Procedures Order will: (iiA) all third party offers Approve sale process procedures that are consistent with this Agreement and otherwise acceptable to be considered at the Buyer; (B) Fix the time, date, and location of a hearing on the Sale Motion approval of the sale (as defined below in Section 8.4.2 belowthe “Approval Hearing”) shall be in writing and delivered to Seller and Buyer approve Sellers’ consummation of the Agreement by no later than forty-eight May 21, 2003, (48C) hours prior to such hearingProvide that a Qualified Offer must be received by 25 calendar days after entry of a Sale Procedures Order (the “Bid Deadline”); (D) Provide that if Sellers do not receive a Qualified Offer by the Bid Deadline, together with satisfactory evidence of such third party's financial ability to perform its obligations under such offer then this Agreement and the Transactions shall be accompanied by a deposit of $1,500,000; which funds such third party shall agree may be used by Seller to pay the Break-Up Fee to Buyer in the situation described in clause (i) above; (iii) no prospective purchaser will be permitted to bid approved at the Hearing on Approval Hearing; (E) Require that notice be given to the Sale Motion unless such party has been deemed "financially qualified" by Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital ("HLHZ"), Seller's investment banker; (iv) no prospective purchaser who bids for parties to the Property at the hearing on Buyer's acquisition proposed Assumed Contracts of the Property shall be entitled proposed assumption and assignment of the Assumed Contracts and any related cure amounts and setting a deadline of five business days before the Approval Hearing for objections to the proposed assumption and assignment of the Assumed Contracts; (F) Provide that if Sellers receive a Qualified Offer to purchase the Property unless Acquired Assets, then Sellers shall immediately inform the Buyer and hold an auction for the Acquired Assets two business days after the Bid Deadline with bidding increments of no less than US $100,000. (G) Provide that a “Qualified Offer” is: (1) A bona fide offer for the entirety of the Acquired Assets for no less than US $3,800,000; and (2) Received from a financially qualified party, which determination shall be made by Sellers in their reasonable discretion and which determination, at a minimum, shall be subject to the provision by such prospective purchaser offers of documentation establishing that such prospective purchaser has sufficient cash on hand or a binding financial commitment from an established financial institution to purchase the Property for consideration which is at least $4,000,000 greater than the consideration set forth in this Agreement ensure such prospective purchaser’s ability to meet its commitments pursuant to its offer; and (including all cash, non-cash consideration and assumed liabilities3) and otherwise Accompanied by a commitment to proceed to a closing on contractual terms at least as favorable to Seller Sellers as those set forth in this AgreementAgreement and a cash deposit in an amount equal to the product obtained by multiplying the offer amount proposed times 5%. (H) Provide that if any of the events described in Section 9(a)(iv) hereof occur, then Buyer will be entitled to receive from Sellers the Break-Up Fee (as defined below); (I) Provide that Buyer’s claim to the Break-Up Fee shall be entitled to superpriority administrative claim treatment in the Bankruptcy Case, senior to all other superpriority claims, whether now or hereafter incurred or accrued; (J) Require Sellers to provide to Buyer, upon Sellers’ receipt thereof, a copy of any Qualified Offer received by it, except not including any materials related to such offer that Sellers are prohibited from disclosing by the terms of a valid confidentiality agreement and also not including any financial or proprietary information submitted by such party; and (vK) after any initial overbid, all further overbids must include cash increments of at least $1,000,000. Should overbidding take placeProvide that should a Qualified Offer be received by Sellers, Buyer shall have the right, but not the obligation, to participate in increase the overbidding Purchase Price and to be approved as the overbidder at the hearing on the Sale Motion based upon any such overbid. If the Bankruptcy Court approves a sale to Buyer based on an overbid by BuyerApproval Hearing, provided, however, that Buyer shall receive a credit against the purchase price any additional incremental offer in the an amount of equal to the Break-Up Fee. Should an overbidder other than Buyer be approved at the hearing on the Sale Motion, Buyer shall, the day after such hearing and concurrently with the payment of the Break-Up Fee to Buyer, deliver to the person designated by Seller all reports, studies and the like materials obtained by Buyer from third party consultants in connection with Buyer's due diligence investigation. (i) the Bankruptcy Court declines to enter the Procedure Order, or (ii) the Procedure Order is not entered on or before the date which is 20 days following the Execution Date (the "Procedure Order Entry Period"), then in either such event, Buyer shall have the right, upon written notice delivered to Seller not later than two (2) business days following the earlier of the declination of the Court or expiration of the Procedure Order Entry Period to terminate this Agreement. Delivery of such notice of termination may be made by facsimile addressed to counsel for Seller. If Buyer timely gives written notice of termination, this Agreement and the transactions contemplated herein shall terminate and Buyer and Seller shall be relieved of any further liability or obligation hereunder other than the obligation to pay to Buyer the Deposit (together with interest) pursuant to Section 2.1(b). Should Buyer decline to timely deliver to Seller written notice of termination, Buyer shall conclusively be deemed to have waived the condition provided for in this Section 8.4. 1. Upon the timely entry of the Procedure Order in form and substance acceptable to Buyer, the condition set forth in this Section 8.4.1 shall be deemed satisfied.;

Bankruptcy Court Approval of Sale Procedures. Promptly following the Execution Date date hereof (and in no event later than ten one (101) business days Business Day thereafter), Seller will file with the Bankruptcy Court (and personally serve counsel for the official creditors' committee, the members of the official creditors' committee, the creditors listed on the 20 largest list, all creditors requesting special notice and all other parties required by law to receive such notice) a motion (the "Sale SALE PROCEDURE MOTION") with the Bankruptcy Court requesting the entry of the Bidding Procedure Motion")Order (i) fixing the time, in form date, and substance acceptable to Buyer, for an order location of a hearing (the "Procedure OrderAPPROVAL HEARING") to approve Seller's consummation of this Agreement, (ii) fixing the time and date of an auction (the "AUCTION") to be held one to three days before the Approval Hearing at which higher and better offers may be presented to Seller, (iii) providing that if Seller receives from a third party a higher and better offer at the Auction, and such third party offer is subsequently approved by the Bankruptcy Court which provides that: and closes as provided by its terms or does not close and Seller is entitled to retain such third party's deposit, then Purchaser will be entitled to receive from Seller (iw) if (x) this Agreement has not been terminated (a) due to a breach by Buyer or (b) by Buyer due to the failure of the condition set forth in Section 4.2.8 and (y) the Bankruptcy Court enters its order approving the sale of the Property (or any material portion thereof) to any party other than Buyer, Seller will on the next business day following entry of such order pay to Buyer a flat fee payment (not dependent on amounts actually expended or incurred by BuyerPurchaser) in cash or other immediately available good funds in the amount of $1,500,000 2,000,000, (x) reimbursement of Purchaser for its actual expenses incurred in connection with this transaction, up to a maximum of $500,000, including, without limitation, coach airfare and reasonable travel expenses, outside legal, accounting and other professional fees and expenses, costs incurred in Purchaser's due diligence investigation of Seller's expenses, costs incurred in connection with obtaining financing commitments and (y) all management fees and other amounts owed pursuant to the Interim Management Agreement (including but not limited to outstanding invoices for Merchandise shipped by one or more affiliates of Purchaser to Seller after the Effective Date)(collectively the "BreakBREAK-Up FeeUP FEE"); (ii) all third party offers to be considered at the hearing on the Sale Motion (as defined below in Section 8.4.2 below) , which payments shall be in writing and delivered made to Seller and Buyer no later than forty-eight (48) hours prior to such hearing, together Purchaser concurrently with satisfactory evidence the consummation of such third party's financial ability party sale or termination if Seller is permitted to perform its obligations under such offer and shall be accompanied by a deposit of $1,500,000; which funds such third party shall agree may be used by Seller to pay the Break-Up Fee to Buyer in the situation described in clause retain their deposit, (i) above; (iiiiv) no prospective purchaser will be permitted to bid at the Hearing on the Sale Motion Auction unless such party has been deemed "financially qualified" by Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital ("HLHZ"), Sellerthe Official Committee's investment banker; advisors, BDO Seidxxx XXX (ivv) no prospective purchaser who bids for the Property Purchased Assets at the hearing on Buyer's acquisition of the Property Auction shall be entitled to purchase the Property Purchased Assets unless such prospective purchaser (a) posts a $3 million deposit; (b) offers to purchase the Property Purchased Assets for consideration which is at least $4,000,000 greater than the consideration set forth in this Agreement (including all cash, non-cash consideration and assumed liabilities) by at least the sum of (x) the Break-Up Fee plus (y) $1.5 million, and otherwise on terms at least as favorable to Seller as those set forth in this Agreement, and (v) after any initial overbid, all further overbids must include cash be in increments of at least $1,000,000500,000.00. Should overbidding take place, Buyer Purchaser shall have the right, but not the obligation, to participate in the overbidding and to be approved as the overbidder at the hearing on the Sale Motion Approved Hearing based upon any such overbid. If Following the Bankruptcy Court approves a sale filing of the Sale Procedure Motion, Seller shall use its best efforts to Buyer based on an overbid by Buyer, Buyer shall receive credit against obtain the purchase price in the amount of Bidding Procedures Order. Seller agrees that the Break-Up Fee. Should an overbidder Fee is in the best interests of Seller and its estate, among other than Buyer be approved at reasons, because the hearing on the Sale Motion, Buyer shall, the day after such hearing and concurrently with the payment establishment of the Break-Up Fee to Buyer, deliver to enhanced the person designated by Seller all reports, studies bidding process and aided in establishing the like materials obtained by Buyer from third party consultants highest possible purchase price; and aided in connection negotiating with Buyer's due diligence investigationPurchaser the highest possible bid for the assets. (i) the Bankruptcy Court declines to enter the Procedure Order, or (ii) the Procedure Order is not entered on or before the date which is 20 days following the Execution Date (the "Procedure Order Entry Period"), then in either such event, Buyer shall have the right, upon written notice delivered to Seller not later than two (2) business days following the earlier of the declination of the Court or expiration of the Procedure Order Entry Period to terminate this Agreement. Delivery of such notice of termination may be made by facsimile addressed to counsel for Seller. If Buyer timely gives written notice of termination, this Agreement and the transactions contemplated herein shall terminate and Buyer and Seller shall be relieved of any further liability or obligation hereunder other than the obligation to pay to Buyer the Deposit (together with interest) pursuant to Section 2.1(b). Should Buyer decline to timely deliver to Seller written notice of termination, Buyer shall conclusively be deemed to have waived the condition provided for in this Section 8.4. 1. Upon the timely entry of the Procedure Order in form and substance acceptable to Buyer, the condition set forth in this Section 8.4.1 shall be deemed satisfied.

Bankruptcy Court Approval of Sale Procedures. Promptly following the Execution Date (and in no event later than ten (10) business days 48 hours thereafter), Seller will file with the Bankruptcy Court (and personally serve counsel for the official creditors' committee, the members of the official creditors' committee, the creditors listed on the 20 largest list, all creditors requesting special notice and all other parties required by law to receive such notice) a motion (the "Sale Procedure Motion"), in form and substance reasonably acceptable to Buyer, for with the Bankruptcy Court requesting the entry of an order (the "Procedure Order") providing (i) the time, date, and location of a hearing (the "Approval Hearing") to approve Seller's consummation of the transactions contemplated by this Agreement (and subsequent performance of its ongoing obligations hereunder), (ii) the time and date of an auction (the "Auction") to be held, prior to the Seller's consummation of the transactions contemplated by this Agreement, at the offices of Xxxx, Scholer, Fierman, Xxxx & Handler, LLP, located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at which higher and better offers may be presented to Seller, (iii) that if Seller receives from a third party (other than Buyer or an affiliate thereof) an adequate higher and better offer at the Auction (as described in clause (vi) of this Section), and such third party offer is subsequently approved by the Bankruptcy Court which provides that: (i) if (x) this Agreement has not been terminated (a) due to a breach by Buyer or (b) by Buyer due to the failure of the condition set forth in Section 4.2.8 and (y) the Bankruptcy Court enters its order approving the sale of the Property (or any material portion thereofan appellate court) and the transaction contemplated in such offer is consummated as provided by its terms, then Buyer will be entitled to any party other than Buyer, receive from Seller will on the next business day following entry of such order pay to Buyer a flat fee payment (not dependent on amounts actually expended or incurred by Buyer) in cash or other immediately available good funds in the amount of $1,500,000 225,000 (the "Break-Up Fee"); (ii) all third party offers to be considered at the hearing on the Sale Motion (as defined below in Section 8.4.2 below) which payment shall be in writing and delivered made to Seller and Buyer no later than forty-eight (48) hours prior to such hearing, together concurrently with satisfactory evidence the consummation of such third party's financial ability to perform its obligations under such offer and shall be accompanied by a deposit of $1,500,000; which funds such party sale, (iv) that no prospective third party shall agree may be used by Seller to pay the Break-Up Fee to Buyer in the situation described in clause (i) above; (iii) no prospective purchaser will be permitted to bid at the Hearing on the Sale Motion Auction unless such party has has, at least three business days before the Auction, been deemed "financially qualified" by in the good faith judgment of Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital ("HLHZ"), Seller's investment banker; , and has provided HLHZ with a draft asset purchase agreement, marked to show changes from this Agreement, and has, at least one business day before the Auction, made a deposit with Seller in an amount of at least $600,000 in immediately available funds on terms substantially similar to the terms provided in Section 2.1.2 of this Agreement, (ivv) that all competing bids and draft asset purchase agreements shall be disclosed to Buyer promptly (but in no event later than 24 hours) after receipt by HLHZ, (vi) that no prospective purchaser third party who bids for the Property at the hearing on Buyer's acquisition of the Property Auction shall be entitled to purchase the Property unless such prospective purchaser third party offers to purchase the Property for consideration which is at least $4,000,000 300,000 greater than the consideration set forth in this Agreement (including all cash, cash and non-cash consideration and assumed liabilitiesconsideration) and otherwise on terms at least as favorable to Seller as those set forth in this Agreement, and (vvii) that after any initial overbid, all further overbids must include cash be in increments of at least $1,000,000100,000 and (viii) that all overbidding must take place and be concluded at the Auction. Should overbidding take place, Buyer shall have the right, but not the obligation, to participate in the overbidding and to be approved as overbidding; provided, that if Buyer purchases the overbidder at the hearing on the Sale Motion based upon any such overbid. If the Bankruptcy Court approves a sale to Buyer based on an overbid by BuyerProperty, Buyer shall not be entitled to receive credit against the purchase price in the amount of the Break-Up Fee. Should an overbidder (other than Buyer or an affiliate thereof) be approved at the hearing on the Sale Motion, Buyer shall, to the day after such hearing extent it may do so without violation of law or contractual restrictions and concurrently with without losing the payment benefit of the Breakattorney-Up Fee to Buyerclient privilege, deliver to the person designated by Seller such approved overbidder all third party reports, studies and the like materials obtained by Buyer resulting from third party consultants in connection with Buyer's due diligence investigation. (i) investigations conducted during the course of negotiating this Agreement or thereafter. Following the filing of the Sale Procedure Motion, Seller shall use reasonable efforts to obtain Bankruptcy Court declines to enter approval of the Procedure Order, or (ii) the Procedure Order is not entered on or before the date which is 20 days following the Execution Date (the "Procedure Order Entry Period"), then in either such event, . Buyer shall have the right, upon written notice delivered use reasonable efforts to cooperate with and assist Seller not later than two (2) business days following the earlier of the declination of the Court or expiration of the Procedure Order Entry Period in its efforts to terminate this Agreement. Delivery of such notice of termination may be made by facsimile addressed to counsel for Seller. If Buyer timely gives written notice of termination, this Agreement and the transactions contemplated herein shall terminate and Buyer and Seller shall be relieved of any further liability or obligation hereunder other than the obligation to pay to Buyer the Deposit (together with interest) pursuant to Section 2.1(b). Should Buyer decline to timely deliver to Seller written notice of termination, Buyer shall conclusively be deemed to have waived the condition provided for in this Section 8.4. 1. Upon the timely obtain entry of the Procedure Order in form and substance acceptable to Buyer, the condition set forth in this Section 8.4.1 shall be deemed satisfiedOrder.

Bankruptcy Court Approval of Sale Procedures. Promptly following the Execution Date (and in no event later than ten (10) business four days thereafter), the Seller will serve and file a motion with a proposed order in the form attached hereto as Exhibit G (the “Sale Procedure Motion”) with the Bankruptcy Court (and personally serve counsel for requesting the official creditors' committee, the members entry of the official creditors' committee, the creditors listed on the 20 largest list, all creditors requesting special notice and all other parties required by law to receive such notice) a motion (the "Sale Procedure Motion"), in form and substance acceptable to Buyer, for an order (the "“Procedure Order"”) from (i) fixing the time, date, and location of a hearing (the “Approval Hearing”) to approve Seller’s consummation of this Agreement, (ii) fixing the time and date of an auction (the “Auction”) to be held at the offices of Seller’s counsel or at the Bankruptcy Court at which provides that: (i) if (x) this Agreement has not been terminated (a) due to a breach by Buyer or (b) by Buyer due higher and better offers may be presented to the failure of Seller or the condition set forth in Section 4.2.8 Bankruptcy Court, (iii) providing that, if Seller receives from a third party a higher and (y) better offer at the Auction, and such third party offer is subsequently approved by the Bankruptcy Court enters and closes as provided by its order approving terms, then Buyer will be entitled to receive from the sale of the Property (or any material portion thereof) to any party other than Buyer, Seller will on the next business day following entry of such order pay to Buyer a flat fee payment (not dependent on amounts actually expended equal to the lesser of Buyer’s actual out-of-pocket expenses in connection with the Purchase Agreement and Approval Hearing or incurred by Buyer) in cash or other immediately available good funds in the amount of $1,500,000 (the "Break-Up Fee"); (ii) all third party offers to be considered at the hearing on the Sale Motion (as defined below in Section 8.4.2 below) 105,000, which payment shall be in writing and delivered made to Seller and the Buyer no later than forty-eight (48) hours prior to such hearing, together concurrently with satisfactory evidence the consummation of such third party's financial ability to perform its obligations under such offer party sale and shall be accompanied by a deposit of $1,500,000; which funds such third party shall agree may be used by Seller to pay the Break-Up Fee to Buyer an administrative expense in the situation described in clause case, (iiv) above; (iii) providing that no prospective purchaser will be permitted to bid at the Hearing on the Sale Motion Auction unless such party has been deemed "“financially qualified" ” by Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital Seller, ("HLHZ"), Seller's investment banker; (ivv) no prospective purchaser who bids for the Property Assets at the hearing on Buyer's acquisition of the Property Auction shall be entitled to purchase the Property Assets unless such prospective purchaser offers to purchase the Property Assets for consideration which is at least $4,000,000 125,000 greater than the consideration set forth in this Agreement (including all cash, non-cash consideration and assumed liabilities) Closing Payment and otherwise on terms at least as favorable to the Seller as those set forth in this Agreement, and (vvi) after any initial overbid, all further overbids must include cash be in increments of at least $1,000,000100,000, and (vii) providing that any prospective bidder must bid for the Assets based on a form of contract substantially similar to this Agreement. Service of the Sale Procedure Motion shall be upon those parties designated in Bankruptcy Rule 6004(c) and upon all other parties who Seller, in its sole discretion, reasonably believes might assert claims on the Assets sold or against the Buyer after the entry of the Approval Order. Should overbidding take place, the Buyer shall have the right, but not the obligation, to participate in the overbidding and to be approved as the overbidder at the hearing on Approval Hearing if it submits the highest and best bid under the bidding procedures. Following the filing of the Sale Motion based upon any such overbid. If the Bankruptcy Court approves a sale to Buyer based on an overbid by Buyer, Buyer shall receive credit against the purchase price in the amount of the Break-Up Fee. Should an overbidder other than Buyer be approved at the hearing on the Sale Procedure Motion, Buyer shall, the day after such hearing and concurrently with the payment of the Break-Up Fee Seller shall use reasonable efforts to Buyer, deliver to the person designated by Seller all reports, studies and the like materials obtained by Buyer from third party consultants in connection with Buyer's due diligence investigation. (i) the Bankruptcy Court declines to enter obtain the Procedure Order, or Order (ii) the date on which the Procedure Order is not entered on or before and becomes final is referred to herein as the date which is 20 days following the Execution Date (the "“Sale Procedure Order Entry Period"Date”), then in either such event, Buyer shall have the right, upon written notice delivered to Seller not later than two (2) business days following the earlier of the declination of the Court or expiration of the Procedure Order Entry Period to terminate this Agreement. Delivery of such notice of termination may be made by facsimile addressed to counsel for Seller. If Buyer timely gives written notice of termination, this Agreement and the transactions contemplated herein shall terminate and Buyer and Seller shall be relieved of any further liability or obligation hereunder other than the obligation to pay to Buyer the Deposit (together with interest) pursuant to Section 2.1(b). Should Buyer decline to timely deliver to Seller written notice of termination, Buyer shall conclusively be deemed to have waived the condition provided for in this Section 8.4. 1. Upon the timely entry of the Procedure Order in form and substance acceptable to Buyer, the condition set forth in this Section 8.4.1 shall be deemed satisfied.

Bankruptcy Court Approval of Sale Procedures. Promptly following the Execution Date date hereof (and in no event later than ten (10) 3 business days thereafterhereafter), the Seller will shall file with the Bankruptcy Court (and personally serve counsel for the official creditors' committee, the members of the official creditors' committee, the creditors listed on the 20 largest list, all creditors requesting special notice and all other parties required by law to receive such notice) a motion (the "Sale Procedure and Sale Motion"), in form and substance acceptable shall provide Buyer with the opportunity to Buyerreview such motion before filing, for with the Bankruptcy Court requesting, on expedited notice: a. the entry of an order (the "Procedure Order") which, among other things, will (1) fix the time, date, and location of a hearing (the "Approval Hearing") to approve Seller's consummation of this Agreement, (2) fix the time and date of submission of alternative bids (the "Bid Deadline"), which shall be no later than the first business day that is 40 days from and after the entry of the Procedure Order and an auction (the "Auction") to be held at the offices of Milbank in New York at which higher or better offers may be presented to the Seller (which date shall be no later than the first business day that is at least 45 days from and after the entry of the Procedure Order), (3) provide that if the Closing with Buyer does not occur as a result of (A) Seller's breach of this Agreement or (B) Seller's receipt of a third party offer at the Auction (and such third party offer is subsequently approved by the Bankruptcy Court which provides that: (i) if (x) this Agreement has not been terminated (a) due and closes), then Buyer will be entitled to a breach by Buyer or (b) by Buyer due to receive from the failure of the condition set forth in Section 4.2.8 and (y) the Bankruptcy Court enters its order approving the sale of the Property (or any material portion thereof) to any party other than Buyer, Seller will on the next business day following entry of such order pay to Buyer a flat fee payment (not dependent on amounts actually expended or incurred by Buyer) in cash or other immediately available good funds in the an amount of equal to $1,500,000 2,400,000 (such amount being referred to as the "Break-Up up Fee"); , which payment shall be considered liquidated damages to Buyer and shall be made (ii1) all in the case of clause (A) above, to Buyer as an administrative expense promptly upon Buyer's delivery of written notice to Seller that Buyer has terminated this Agreement as a result of such breach, or (2) in the case of clause (B) above, to Buyer concurrently with the consummation of and solely from the proceeds of such third party offers to be considered at sale, PROVIDED THAT, in the hearing on event that a third party sale is not consummated within 15 days following the Sale Motion Hearing (as defined below in Section 8.4.2 below) shall be in writing and delivered to the Procedure Order), Seller and Buyer no later than forty-eight shall close the transactions contemplated by this Agreement upon the terms and conditions set forth herein, (484) hours provide that nothing contained herein shall prohibit the Board of Directors of Seller (the "Board"), at any time prior to the Bid Deadline, from providing notice to Buyer of its intent to effect a stand-alone plan of reorganization or other transaction with its existing creditors and equity holders, which the Board determines in good faith, based upon the advice of outside counsel and its financial advisors, is required for the Board to comply with its fiduciary obligations under applicable law, in which case, Seller may terminate this Agreement by immediately paying to Buyer an amount equal to $1,400,000 (such hearingpayment being referred to as the "Termination Fee"), together provided that Buyer shall be paid the difference between the Termination Fee and the Break-up Fee if a stand-alone plan is subsequently abandoned and an alternative transaction with satisfactory evidence a third party involving a merger, sale of all of the stock or substantially all of the assets of Seller is consummated during the pendancy of the Case, which payment shall be made to the Buyer concurrently with the consummation of and solely from the proceeds of such third party's financial ability party transaction, (5) provide that as a condition to perform its obligations under such offer and shall be accompanied by receive a deposit of $1,500,000; which funds such third party shall agree may be used by Seller to pay the Break-Up up Fee to or Termination Fee, if applicable, Buyer in the situation described in clause must first waive any and all claims against Seller, (i6) above; (iii) order that no prospective purchaser will be permitted to bid at the Hearing on the Sale Motion Auction unless such party has been deemed "financially qualified" by Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital ("HLHZ"), Seller's investment banker; , (iv7) order that no prospective purchaser who bids purchaser(s) which bid(s) for the Property Assets at the hearing on Buyer's acquisition of the Property Auction shall be entitled to purchase the Property Assets unless such prospective purchaser submits a deposit equal to or greater than eight million dollars ($8 million) and offers to purchase the Property Assets for consideration which is at least $4,000,000 greater than the consideration set forth in this Agreement (including all cash, non-cash consideration and assumed liabilitiesAssumed Liabilities) which, when coupled with the consideration received by Seller in conjunction with the Assets that may not be part of such purchaser's offer, is in an amount equal to not less than the sum of (such sum being referred to as the "Initial Overbid Amount"): (A) the Purchase Price (including Seller's good faith valuation of those portions of the Purchase Price that will not be paid in cash at the Closing), plus (B) the Break-up Fee, plus (C) five hundred thousand dollars ($500,0000) and otherwise on terms at least as favorable to Seller as those set forth in this Agreement, and (v) 8) order that after any initial overbidthe Initial Overbid Amount, all further overbids must include cash be in increments of at least two hundred fifty thousand dollars ($1,000,000250,000) in excess of the Initial Overbid Amount or the then prevailing bid. After the Initial Overbid Amount, the Seller must consider the amount of or entitlement to payment of the Break-up Fee in determining the highest or best offer for the Assets. Should overbidding take place, the Buyer shall have the right, but not the obligation, to participate in the overbidding and to be approved as the overbidder at the hearing on the Sale Motion Approval Hearing based upon any such overbid. If the Bankruptcy Court approves a sale to Buyer based on an overbid by Buyer, Buyer shall receive and may credit against the purchase price in the amount of bid the Break-Up up Fee. Should an overbidder other than Buyer be approved at Following the hearing on filing of the Sale Procedure and Sale Motion, Buyer shall, the day after such hearing and concurrently with the payment of the Break-Up Fee Seller shall use reasonable efforts to Buyer, deliver to the person designated by Seller all reports, studies and the like materials obtained by Buyer from third party consultants in connection with Buyer's due diligence investigation. (i) the Bankruptcy Court declines to enter obtain the Procedure Order, or (ii) the . The Procedure Order is not entered on or before the date which is 20 days following the Execution Date (the "Procedure Order Entry Period"), then in either such event, Buyer shall have the right, upon written notice delivered to Seller not later than two (2) business days following the earlier of the declination of the Court or expiration of the Procedure Order Entry Period to terminate this Agreement. Delivery of such notice of termination may be made by facsimile addressed to counsel for Seller. If Buyer timely gives written notice of termination, this Agreement and the transactions contemplated herein shall terminate and Buyer and Seller shall be relieved of any further liability or obligation hereunder other than the obligation to pay to Buyer the Deposit (together with interest) pursuant to Section 2.1(b). Should Buyer decline to timely deliver to Seller written notice of termination, Buyer shall conclusively be deemed to have waived the condition provided for in this Section 8.4. 1. Upon the timely entry of the Procedure Order in form and substance acceptable similar to Buyer, the condition proposed Procedure Order attached hereto as EXHIBIT I; and b. the entry of an order (the "Approval Order") which among other things (1) approves the sale of the Assets to Buyer on the terms and conditions set forth in this Section 8.4.1 Agreement and authorizes the Seller to proceed with this transaction, (2) includes a specific finding that Buyer is a good faith purchaser of the Assets, (3) states that the sale of the Assets to Buyer shall be deemed satisfied.free and clear of all liens, claims, interests and encumbrances whatsoever (other than Permitted Encumbrances), (4) approves the Seller's assumption and assignment of the Real Property Leases and Other Leases and Contracts (collectively, the "Section 365 Contracts") pursuant to Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and orders the payment in accordance with this Agreement of any cure amounts payable to the other parties to the Section 365 Contracts as a condition to such assumption and assignment, (5) approves and authorizes Debtor to execute the Management Agreement and Sublease and (6) approves the provisions of Section 3.b, and at Seller's option Section 1.b.viii, and authorizes the payment to Buyer of the compensation provided for therein. The Seller shall send notice of the proposed assignment of the Section 365 Contracts to the appropriate parties no less than twenty (20) days prior to the Approval Hearing. If specifically requested by the Bankruptcy Court or other appropriate party, the Buyer shall be responsible for demonstrating adequate assurance of future performance and any and all costs and expenses necessary in connection therewith regarding any of the Section 365 Contracts. It shall be an additional condition to the parties' obligations hereunder that at least 90% of the Real Property Leases (based on lease count, not lease payments, but amounting to at least 90% of the FYE-02 Four-Wall Cash Flow for the Acquired Stores) be assignable to the Buyer, and it shall not be a breach of this Agreement if Seller assigns to Buyer at least this percentage of the Real Property Leases, provided that either the Buyer or the Seller may elect to terminate this Agreement if such percentage is not assignable. Notwithstanding the foregoing, the Purchase Price with respect to the Acquired Stores shall be adjusted downward in an amount equal to (x) 95% less the actual percentage of Real Property Leases associated with Acquired Stores assigned to Buyer (with such percentage calculated based upon the percentage of FYE-02 Four Wall Cash Flow for all of the Acquired Stores represented by the Real Property Leases actually assigned to Buyer) (to the extent that such percentage is less than 95%), multiplied by (y) the percentage of FYE-02 Four Wall Cash Flow associated with Real Property Leases associated with Acquired Stores that were not assigned due to reasons other than Buyer's failure to demonstrate adequate assurance of future performance in relation to the total amount of FYE-02 Four Wall Cash Flow for the Acquired Stores associated with Real Property Leases that were not assigned, multiplied by (z) the Adjusted Purchase Price with respect to the Acquired Stores. Notwithstanding the foregoing, Buyer shall use its best efforts to demonstrate adequate assurance of future performance for 100% of the Real Property Leases and Seller shall use its best efforts to assign 100% of the Real Property Leases and Seller shall not fail to assign any such Real Property Lease except if such assignment is prohibited pursuant to applicable law. Following the filing of the Sale Procedure and Sale Motion, the Seller shall use reasonable efforts to obtain entry of the Approval Order. The Approval Order shall be in form and substance similar to the proposed Approval Order attached hereto as EXHIBIT J.

Bankruptcy Court Approval of Sale Procedures. Promptly following the Execution Date (and in no event later than ten (10) business days thereafter), the Seller will file with the Bankruptcy Court (and personally serve counsel for the official creditors' committee, the members of the official creditors' committee, the creditors listed on the 20 largest list, all creditors requesting special notice and all other parties required by law to receive such notice) a motion referenced in Section 4.2.5 hereof (the "Sale Procedure Motion"), ) with the Bankruptcy Court requesting the entry of the order referenced in form and substance acceptable to Buyer, for an order Section 4.2.5 hereof (the "Procedure Order") from the Bankruptcy Court which provides that: (i) if fixing the time, date, and location of a hearing (xthe "Approval Hearing") to approve Seller's consummation of this Agreement has not been terminated agreement, (aii) due fixing the time and date of an auction (the "Auction") to a breach by Buyer or (b) by Buyer due be held at the offices of Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx, L.L.P. at which higher and better offers may be presented to the failure of Seller, (iii) providing that if Seller receives from a third party a higher and better offer at the condition set forth in Section 4.2.8 Auction, and (y) the Bankruptcy Court enters its order approving the sale of the Property (or any material portion thereof) such third party offer is subsequently accepted by Seller, then Buyer shall be entitled to any party other than Buyer, Seller will on the next business day following entry of such order pay to Buyer a flat fee payment (not dependent on amounts actually expended or incurred by Buyer) in cash or other immediately available good funds Good Funds in the amount of Two Million, Five Hundred Thousand Dollars and No Cents ($1,500,000 2,500,000) (the "Break-Up Fee"); , payable in accordance with Section 4.4.5 hereof, (iiiv) all third party offers to be considered at the hearing on the Sale Motion (as defined below in Section 8.4.2 below) shall be in writing and delivered to Seller and Buyer no later than forty-eight (48) hours prior to such hearing, together with satisfactory evidence of such third party's financial ability to perform its obligations under such offer and shall be accompanied by a deposit of $1,500,000; which funds such third party shall agree may be used by Seller to pay the Break-Up Fee to Buyer in the situation described in clause (i) above; (iii) providing that no prospective purchaser will be permitted to bid at the Hearing on the Sale Motion Auction unless (a) such party prospective purchaser has been deemed "financially qualified" by Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital ("HLHZ"), Seller's investment banker; , (ivb) such prospective purchaser shall have executed and delivered an asset purchase agreement substantially similar to this Agreement, and (c) such prospective purchaser has delivered a deposit into escrow not less than the amount of the Deposit, (v) providing that no prospective purchaser who bids for the Property at the hearing on Buyer's acquisition of the Property Auction shall be entitled to purchase the Property unless such prospective purchaser offers to purchase the Property for consideration which is at least Two Million, Seven Hundred Fifty Thousand Dollars and No Cents ($4,000,000 2,750,000) (the "Initial Overbid") greater than the consideration set forth in this Agreement (including all cash, non-cash consideration and assumed liabilities) and otherwise on terms at least as favorable to the Seller as those set forth in this Agreement, and (vvi) providing that (a) after any initial overbidthe Initial Overbid, all further overbids must include cash be in increments of at least Two Hundred Fifty Thousand Dollars and No Cents ($1,000,000. Should 250,000), (b) should overbidding take place, the Buyer shall have the right, but not the obligation, to participate in the overbidding and to be approved as the overbidder at the hearing on the Sale Motion Approval Hearing based upon any such overbid. If the Bankruptcy Court approves a sale to Buyer based on an overbid by Buyer, Buyer shall receive credit against the purchase price in the amount of the Break-Up Fee. Should and (c) should an overbidder other than Buyer be approved at the hearing on the Sale Motion, Buyer shall, the day after such hearing and concurrently with the payment upon its receipt of the Break-Up Fee to Buyerand the Deposit, deliver to the person designated by Seller such approved overbidder all third party reports, studies and the like materials obtained by Buyer resulting from third party consultants in connection with Buyer's due diligence investigation. investigations, and (ivii) approving the Bankruptcy Court declines to enter the Procedure Orderform, or (ii) the Procedure Order is not entered on or before the date which is 20 days following the Execution Date (the "Procedure Order Entry Period")manner, then in either such eventscope, Buyer shall have the right, upon written notice delivered to Seller not later than two (2) business days following the earlier of the declination of the Court or expiration of the Procedure Order Entry Period to terminate this Agreement. Delivery of such notice of termination may be made by facsimile addressed to counsel for Seller. If Buyer timely gives written notice of termination, this Agreement and the transactions contemplated herein shall terminate and Buyer and Seller shall be relieved of any further liability or obligation hereunder other than the obligation to pay to Buyer the Deposit (together with interest) pursuant to Section 2.1(b). Should Buyer decline to timely deliver to Seller written notice of termination, Buyer shall conclusively be deemed to have waived the condition provided for in this Section 8.4. 1. Upon the timely entry of the Procedure Order in form and substance acceptable to Buyerof notice regarding the proposed sale and Auction, the condition set forth in this Section 8.4.1 shall be deemed satisfiedincluding overbid procedures.

Bankruptcy Court Approval of Sale Procedures. Promptly following the Execution Date (and in no event later than ten (10) business days thereafter), Seller will file with the Bankruptcy Court (and personally serve counsel for the official creditors' committee, the members of the official creditors' committee, the creditors listed on the 20 largest list, all creditors requesting special notice and all other parties required by law to receive such notice) has filed a motion (the "Sale Procedure Motion"), in form ) with the Bankruptcy Court and substance acceptable shall use reasonable efforts to Buyer, for obtain the entry of an order (the "Procedure Procedures Order") (i) fixing the time, date, and location of a hearing (the "Approval Hearing") to approve Sellers' consummation of this Agreement, (ii) fixing the time and date of an auction (the "Auction") to be held at Young Conaway Stargatt & Taylor, LLP, Eleventh Floor, Wilmington Xxxxx Xenter, 1100 Xxxxx Market Street, Wilmington, Delaware, at which hixxxx xxx xxxxxx xxxxxx xx xxxxxxxx xxx Xxxxxxxd Assets may be presented to Seller, (iii) providing that if Seller receives from a third party a higher and better offer to purchase the Acquired Assets at the Auction, and such third party offer is subsequently approved by the Bankruptcy Court which provides that: (i) if (x) this Agreement has not been terminated (a) due and closes as provided by its terms, then Buyer will be entitled to a breach by Buyer or (b) by Buyer due to the failure of the condition set forth in Section 4.2.8 and (y) the Bankruptcy Court enters its order approving the sale of the Property (or any material portion thereof) to any party other than Buyer, receive from Seller will on the next business day following entry of such order pay to Buyer a flat fee payment (not dependent on amounts actually expended or incurred by Buyer) in cash or other immediately available good funds in the amount of $1,500,000 three percent (3%) of the aggregate of the Purchase Price (the "Break-Up Fee"); (ii) all third party offers to be considered at the hearing on the Sale Motion (as defined below in Section 8.4.2 below) which payment shall be in writing and delivered made to Seller and Buyer no later than forty-eight (48) hours prior to such hearing, together concurrently with satisfactory evidence the consummation of such third party's financial ability to perform its obligations under such offer party sale and shall be accompanied by a deposit of $1,500,000; which funds such third party shall agree may be used by Seller to pay the Break-Up Fee to Buyer in the situation described in clause (i) above; (iii) no prospective purchaser will be permitted to bid at the Hearing on the Sale Motion unless such party has been deemed "financially qualified" by Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital ("HLHZ"), Seller's investment banker; (iv) no prospective purchaser who bids for the Property Acquired Assets at the hearing on Buyer's acquisition of the Property Auction shall be entitled to purchase the Property Acquired Assets unless such prospective purchaser offers to purchase the Property Acquired Assets for consideration which is at least $4,000,000 five percent (5%) greater than the consideration set forth in this Agreement (including all cash, non-cash consideration and assumed liabilities) aggregate of the Purchase Price and otherwise on terms at least as favorable to Seller as those set forth in this Agreement, as determined by HLHZ and (v) after any initial overbid, all further overbids must include cash increments of at least $1,000,000the Seller. Should overbidding take place, Buyer shall have the right, but not the obligation, to participate in the overbidding and to be approved as the overbidder at the hearing on the Sale Motion Approval Hearing based upon any Buyer's submission of the highest and best offer to purchase the Acquired Assets and Seller's acceptance of such overbid. If the Bankruptcy Court approves a sale to Buyer based on an overbid by Buyer, Buyer shall receive credit against the purchase price in the amount of the Break-Up Fee. Should an overbidder other than Buyer be approved at the hearing on the Sale Motion, Buyer shall, the day after such hearing and concurrently with the payment of the Break-Up Fee to Buyer, deliver to the person designated by Seller all reports, studies and the like materials obtained by Buyer from third party consultants in connection with Buyer's due diligence investigation. (i) the Bankruptcy Court declines to enter the Procedure Order, or (ii) the Procedure Order is not entered on or before the date which is 20 days following the Execution Date (the "Procedure Order Entry Period"), then in either such event, Buyer shall have the right, upon written notice delivered to Seller not later than two (2) business days following the earlier of the declination of the Court or expiration of the Procedure Order Entry Period to terminate this Agreement. Delivery of such notice of termination may be made by facsimile addressed to counsel for Seller. If Buyer timely gives written notice of termination, this Agreement and the transactions contemplated herein shall terminate and Buyer and Seller shall be relieved of any further liability or obligation hereunder other than the obligation to pay to Buyer the Deposit (together with interest) pursuant to Section 2.1(b). Should Buyer decline to timely deliver to Seller written notice of termination, Buyer shall conclusively be deemed to have waived the condition provided for in this Section 8.4. 1. Upon the timely entry of the Procedure Order in form and substance acceptable to Buyer, the condition set forth in this Section 8.4.1 shall be deemed satisfied.

Bankruptcy Court Approval of Sale Procedures. Promptly following the Execution Date (and in no event later than ten (10) business days thereafter)Date, the Seller will file with the Bankruptcy Court (and personally serve counsel for the official creditors' committee, the members of the official creditors' committee, the creditors listed on the 20 largest list, all creditors requesting special notice and all other parties required by law to receive such notice) a motion (the "Sale Procedure Motion"), in form and substance acceptable to Buyer, for ) with the Bankruptcy Court requesting the entry of an order (the "Procedure Order") from no later than 5:00 p.m., Eastern time, two (2) business days after the Bankruptcy Court which provides that: Execution Date (i) if (x) this Agreement has not been terminated (a) due to a breach by Buyer or (b) by Buyer due to the failure of the condition set forth in Section 4.2.8 and (y) the Bankruptcy Court enters its order approving the sale of the Property (or any material portion thereof) to any party other than Buyer, Seller will requesting expedited hearings on the next business day following entry of such order pay to Buyer a flat fee payment (not dependent on amounts actually expended or incurred by Buyer) in cash or other immediately available good funds in the amount of $1,500,000 (the "Break-Up Fee"); (ii) all third party offers to be considered at the hearing on Sale Procedure Motion and the Sale Motion (as defined below in Section 8.4.2 belowhereinafter defined), (ii) shall be in writing requesting the Bankruptcy Court to fix the time, date, and delivered location of a hearing (the "Approval Hearing") to approve the Seller's consummation of this Agreement, (iii) requesting the approval of the assignment and assumption of certain executory contracts or agreements and rejecting certain executory contracts or agreements, if necessary, (iv) providing that if the Seller and Buyer no later than forty-eight solicits bids (48whether voluntarily or at the direction of the Bankruptcy Court) hours prior to such hearing, together with satisfactory evidence of such from a third party's financial ability to perform its obligations under such offer and shall be accompanied by a deposit of $1,500,000; which funds , such third party shall agree may be used pre-qualified by depositing with the Seller's bankruptcy counsel no later than 24 hours prior to the submission of such bid an amount equal to the Deposit and such offer is for a purchase price for the Property that is greater than the Purchase Price and is subsequently approved by the Bankruptcy Court and closes as provided by its terms but in no event later than the earlier of ten (10) days after Bankruptcy Court approval or two (2) business days after the Approval Order becomes final and non-appealable, then the Seller to shall pay the Break-Up Fee Buyer at such closing a flat fee payment of $550,000.00, (v) providing that if the Seller receives a bid from a third party, the Seller shall provide a copy of such bid to the Buyer in within 24 hours of the situation described in clause receipt of such bid, (ivi) above; (iii) no prospective purchaser will be permitted to bid at the Hearing on the Sale Motion unless such party has been deemed "financially qualified" by Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital ("HLHZ"), Seller's investment banker; (iv) providing that no prospective purchaser who bids for the Property at the hearing on Buyer's acquisition of the Property shall be entitled to purchase the Property unless such prospective purchaser offers to purchase all the Property Property, and the purchase is for consideration which is at least $4,000,000 greater than the consideration set forth in this Agreement (including all cash, non-cash consideration and assumed liabilities) 6,150,000 and otherwise on terms at least as favorable to the Seller as those set forth in this AgreementAgreement (an "Outbid"), and (vvii) providing that after any initial overbidOutbid, all further overbids Outbids must include cash be in increments of at least $1,000,00050,000, (viii) noting that the holders of the majority of the bonds of the Seller joins with the Seller in submitting the Sale Procedure Motion and the Sale Motion, and approving the procedures specified in Sections 7.1 and 8. Should overbidding bidding take place, the Buyer shall have the right, but not the obligation, to participate in the overbidding bidding and to be approved as the overbidder highest bidder at the hearing on the Sale Motion Approval Hearing based upon any such overbidOutbid. If Following the Bankruptcy Court approves a sale to Buyer based on an overbid by Buyer, Buyer shall receive credit against the purchase price in the amount filing of the Break-Up Fee. Should an overbidder other than Buyer be approved at the hearing on the Sale Procedure Motion, Buyer shall, the day after such hearing and concurrently with the payment of the Break-Up Fee Seller shall use Seller's best efforts to Buyer, deliver to the person designated by Seller all reports, studies and the like materials obtained by Buyer from third party consultants in connection with Buyer's due diligence investigation. (i) the Bankruptcy Court declines to enter obtain the Procedure Order, or Order (ii) the date on which the Procedure Order is not entered on or before the date which and becomes final is 20 days following the Execution Date (referred to herein as the "Sale Procedure Order Entry PeriodDate"), then in either such event, Buyer shall have the right, upon written notice delivered to Seller not later than two (2) business days following the earlier of the declination of the Court or expiration of the Procedure Order Entry Period to terminate this Agreement. Delivery of such notice of termination may be made by facsimile addressed to counsel for Seller. If Buyer timely gives written notice of termination, this Agreement and the transactions contemplated herein shall terminate and Buyer and Seller shall be relieved of any further liability or obligation hereunder other than the obligation to pay to Buyer the Deposit (together with interest) pursuant to Section 2.1(b). Should Buyer decline to timely deliver to Seller written notice of termination, Buyer shall conclusively be deemed to have waived the condition provided for in this Section 8.4. 1. Upon the timely entry of the Procedure Order in form and substance acceptable to Buyer, the condition set forth in this Section 8.4.1 shall be deemed satisfied.

Bankruptcy Court Approval of Sale Procedures. Promptly following the Execution Date (and in no event later than ten (10) business days thereafter), the Seller will file with the Bankruptcy Court (and personally serve counsel for the official creditors' committee, the members of the official creditors' committee, the creditors listed on the 20 largest list, all creditors requesting special notice and all other parties required by law to receive such notice) a motion (the "Sale Procedure Motion"), in form and substance acceptable to Buyer, for ) with the Bankruptcy Court requesting the entry of an order (the "Procedure Order") (i) fixing the time, date, and location of a hearing (the "Approval Hearing") to approve Seller's consummation of this agreement, (ii) fixing the time and date of an auction (the "Auction") to be held at the offices of Xxxxxxx & Xxxxx, L.L.P. at which higher and better offers may be presented to the Seller, (iii) providing that if Seller receives from a third party a higher and better offer at the Auction, and Sch. 8.7, Pg. 14 such third party offer is subsequently approved by the Bankruptcy Court which provides that: (i) if (x) this Agreement has not been terminated (a) due and closes as provided by its terms, then Buyer will be entitled to a breach by Buyer or (b) by Buyer due to receive from the failure of the condition set forth in Section 4.2.8 and (y) the Bankruptcy Court enters its order approving the sale of the Property (or any material portion thereof) to any party other than Buyer, Seller will on the next business day following entry of such order pay to Buyer a flat fee payment (not dependent on amounts actually expended or incurred by Buyer) in cash or other immediately available good funds in the amount of US $1,500,000 1,000,000 (United States Dollars One Million 00/100) (the "Break-Break- Up Fee"); (ii) all third party offers to be considered at the hearing on the Sale Motion (as defined below in Section 8.4.2 below) which payment shall be in writing and delivered paid to Seller and the Buyer no later than forty-eight (48) hours prior to such hearing, together concurrently with satisfactory evidence the consummation of such third party's financial ability to perform its obligations under such offer and shall be accompanied by a deposit of $1,500,000; which funds such third party shall agree may be used by Seller to pay the Break-Up Fee to Buyer in the situation described in clause sale, (iiv) above; (iii) providing that no prospective purchaser will be permitted to bid at the Hearing on the Sale Motion Auction unless such party has been deemed "financially qualified" by Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital ("HLHZ"), Seller's investment banker; , (ivv) providing that no prospective purchaser who bids for the Property at the hearing on Buyer's acquisition of the Property Auction shall be entitled to purchase the Property unless such prospective purchaser offers to purchase the Property for consideration which is at least US $4,000,000 1,500,000 (United States Dollars One Million Five Hundred Thousand 00/100) greater than the consideration set forth in this Agreement (including all cash, non-cash consideration and assumed liabilities) and otherwise on terms at least as favorable to the Seller as those set forth in this Agreement, and (vvi) providing that after any initial overbid, all further overbids must include cash be in increments of at least $1,000,000. Should 500,000 (United States Dollars Five Hundred Thousand 00/100), that should overbidding take place, the Buyer shall have the right, but not the obligation, to participate in the overbidding and to be approved as the overbidder at the hearing on the Sale Motion Approval Hearing based upon any such overbid. If the Bankruptcy Court approves a sale to Buyer based on an overbid by Buyer, Buyer shall receive credit against the purchase price in the amount of the Break-Up Fee. Should and that should an overbidder other than Buyer be approved at the hearing on the Sale Motion, Buyer shall, the day after such hearing and concurrently with the payment of the Break-Up Fee to Buyer, shall deliver to the person designated by Seller such approved overbidder all third party reports, studies and the like materials obtained by Buyer resulting from third party consultants in connection with Buyer's due diligence investigation. investigations, and (ivii) approving the form, manner, scope, and substance of notice regarding the proposed sale and Auction, including overbid procedures. The form and substance of the Sale Procedure Motion and the Procedure Order shall be reasonably acceptable to Buyer and shall be provided to Buyer prior to filing of same with the Bankruptcy Court declines Court. Following the filing of the Sale Procedure Motion, the Seller shall use reasonable efforts to enter obtain the Procedure Order, or Order (ii) the date on which the Procedure Order is not entered on or before the date which and becomes final is 20 days following the Execution Date (referred to herein as the "Sale Procedure Order Entry PeriodDate"), then in either such event, Buyer shall have the right, upon written notice delivered to Seller not later than two (2) business days following the earlier of the declination of the Court or expiration of the Procedure Order Entry Period to terminate this Agreement. Delivery of such notice of termination may be made by facsimile addressed to counsel for Seller. If Buyer timely gives written notice of termination, this Agreement and the transactions contemplated herein shall terminate and Buyer and Seller shall be relieved of any further liability or obligation hereunder other than the obligation to pay to Buyer the Deposit (together with interest) pursuant to Section 2.1(b). Should Buyer decline to timely deliver to Seller written notice of termination, Buyer shall conclusively be deemed to have waived the condition provided for in this Section 8.4. 1. Upon the timely entry of the Procedure Order in form and substance acceptable to Buyer, the condition set forth in this Section 8.4.1 shall be deemed satisfied.

Bankruptcy Court Approval of Sale Procedures. Promptly following On or as soon as practicable subsequent to the Execution Date (and date hereof, but in no event later more than ten (10) business five days thereafter), Seller the Company will file a motion (the “Sale Procedure Motion”) with the Bankruptcy Court requesting the entry of an order substantially in the form attached hereto as Exhibit D (the “Procedure Order”) (i) fixing the earliest available time and personally serve counsel for date, and location of a hearing (the official creditors' committee, “Approval Hearing”) to approve the members Companys’ consummation of the official creditors' committeeAgreement, (ii) fixing the creditors listed on the 20 largest list, all creditors requesting special notice time and all other parties required by law to receive such notice) a motion date of an auction (the "Sale Procedure Motion")“Auction”) preceding the Approval Hearing to be held at the offices of the Company’s counsel, in form and substance acceptable to Buyer, for an order (the "Procedure Order") from or such other location as the Bankruptcy Court directs, at which provides that: (i) if (x) this Agreement has not been terminated (a) due higher and better offers to a breach by Buyer or (b) by Buyer due purchase the Assets may be presented to the failure of Company, (iii) establishing bidding procedures acceptable to the condition set forth in Section 4.2.8 Purchaser, (iv) providing that if the Company receives from a third party a higher and (y) better offer to purchase the Assets at the Auction, and such third party offer is subsequently approved by the Bankruptcy Court enters and closes as provided by its order approving terms, then the sale of Purchaser will be entitled to receive from the Property (or any material portion thereof) to any party other than Buyer, Seller will on the next business day following entry of such order pay to Buyer Company a flat fee payment (not dependent on amounts actually expended or incurred by Buyerthe Purchaser) in cash or other immediately available good funds Good Funds in the amount of $1,500,000 150,000 (the "“Break-Up Fee"); (ii”) all third party offers to be considered at the hearing on the Sale Motion (as defined below in Section 8.4.2 below) which payment shall be in writing and delivered made to Seller and Buyer no later than forty-eight (48) hours prior to such hearing, together the Purchaser concurrently with satisfactory evidence the consummation of such third party's financial ability party sale, (v) providing that the Purchasers’ claim to perform its obligations under such offer and shall be accompanied by a deposit of $1,500,000; which funds such third party shall agree may be used by Seller to pay the Break-Up Fee shall be entitled to Buyer superpriority administrative claim treatment in the situation described Bankruptcy Case, senior to all other superpriority claims, except such claim shall be subordinate to the payment of all professional fees in clause the Bankruptcy Case, whether now or hereafter incurred or accrued, and to the rights of such professionals to such payment, (ivi) above; (iii) providing that no prospective purchaser will be permitted to bid at the Hearing on the Sale Motion Auction unless such party has been deemed "“financially qualified" ” by Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital the Company, in accordance with objective criteria set forth in the Procedure Order which at a minimum shall require any such prospective purchaser to provide documentation establishing that such prospective purchaser has sufficient cash on hand or a binding financial commitment from an established financial institution to ensure such prospective purchaser’s ability to meet its commitments pursuant to its bid, ("HLHZ"), Seller's investment banker; (ivvii) providing that no prospective purchaser who bids for the Property Assets at the hearing on Buyer's acquisition of the Property Auction shall be entitled to purchase the Property Assets unless such prospective purchaser offers submits to purchase the Property for consideration which is Company in writing three days prior to the Auction a bid at least equal to $4,000,000 200,000 greater than the consideration set forth in this Agreement (including all cash, non-cash consideration and assumed liabilities) for the initial bid, and otherwise then $50,000 greater for any additional incremental bid, accompanied by a commitment to proceed to a closing on contractual terms at least as favorable to Seller the Company as those set forth in this AgreementAgreement and a cash deposit in an amount equal to the product obtained by multiplying the purchase price proposed in such bid times 5%, and (vviii) after requiring the Company to provide to the Purchaser, upon the Company’s receipt thereof, a copy of any initial overbidbid received by it, all further overbids must include cash increments except not including any materials related to such bidder which the Company is prohibited from disclosing by the terms of at least $1,000,000a valid confidentiality agreement and also not including any financial or proprietary information submitted by such bidder. Should overbidding take place, Buyer the Purchaser shall have the right, but not the obligation, to participate in the overbidding and to be approved as the overbidder at the hearing on the Sale Motion Approval Hearing based upon any such overbid. If , provided, however, that the Bankruptcy Court approves a sale to Buyer based on an overbid by Buyer, Buyer Purchaser shall receive a credit against the purchase price any additional incremental bid in the an amount of the Break-Up Feeequal to $150,000. Should an overbidder other than Buyer be approved at the hearing on the Sale Motion, Buyer shall, the day after such hearing and concurrently with the payment of the Break-Up Fee The Company shall use reasonable efforts to Buyer, deliver to the person designated by Seller all reports, studies and the like materials obtained by Buyer from third party consultants in connection with Buyer's due diligence investigation. (i) the Bankruptcy Court declines to enter obtain the Procedure Order, or . (ii) The date on which the Procedure Order is not entered on or before and becomes final is referred to herein as the date which is 20 days following “Sale Procedure Date”). In order to prevail at the Execution Date (Auction and subsequent Approval Hearing, such aggregate bid for the "Procedure Order Entry Period"), then in either such event, Buyer shall have the right, upon written notice delivered to Seller not later than two (2) business days following the earlier entirety of the declination Assets must be deemed higher and better than the Purchaser’s bid for the entirety of the Court or expiration of Assets, in accordance with the Procedure Order Entry Period to terminate this Agreement. Delivery of such notice of termination may be made by facsimile addressed to counsel for Seller. If Buyer timely gives written notice of termination, this Agreement and the transactions contemplated herein shall terminate and Buyer and Seller shall be relieved of any further liability or obligation hereunder other than the obligation to pay to Buyer the Deposit (together with interest) pursuant to Section 2.1(b). Should Buyer decline to timely deliver to Seller written notice of termination, Buyer shall conclusively be deemed to have waived the condition provided for in this Section 8.4Order. 1. Upon the timely entry of the Procedure Order in form and substance acceptable to Buyer, the condition set forth in this Section 8.4.1 shall be deemed satisfied.

Bankruptcy Court Approval of Sale Procedures. Promptly following the Execution Date (and in no event later than ten three (103) business days thereafter), the Seller will file with the Bankruptcy Court (and personally serve counsel for the official creditors' committee, the members of the official creditors' committee, the creditors listed on the 20 largest list, all creditors requesting special notice and all other parties required by law to receive such notice) a motion (the "Sale Procedure Motion"), in form and substance acceptable to Buyer, for ) with the Bankruptcy Court requesting the entry of an order (such order, in the form entered by the Bankruptcy Court, the "Procedure Order") on an expedited basis (i) fixing the time, date, and location of a hearing (the "Approval Hearing") to approve Seller's consummation of this agreement, (ii) fixing the time and date of an auction (the "Auction") to be held as soon as practicable at the offices of Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx, L.L.P. in Houston, Texas, at which higher and better offers may be presented to the Seller, (iii) providing that if Seller receives from a third party a higher and better offer for the Property at the Auction, and such third party offer is subsequently approved by the Bankruptcy Court which provides that: (i) if (x) and closes as provided by its terms, then this Agreement has not been will be terminated (a) due and Buyer will be entitled to a breach by Buyer or (b) by Buyer due to receive from the failure of the condition set forth in Section 4.2.8 and (y) the Bankruptcy Court enters its order approving the sale of the Property (or any material portion thereof) to any party other than Buyer, Seller will on the next business day following entry of such order pay to Buyer a flat fee payment (not dependent on amounts actually expended or incurred by Buyer) in cash or other immediately available good funds in the amount of $1,500,000 250,000 (the "Break-Up Fee"); (ii) all third party offers to be considered at the hearing on the Sale Motion (as defined below in Section 8.4.2 below) which payment shall be in writing made to the Buyer concurrently with the consummation and delivered to Seller and Buyer no later than forty-eight (48) hours prior to such hearing, together with satisfactory evidence from the proceeds of such third party's financial ability to perform its obligations under such offer party sale and shall constitute liquidated damages of Buyer, and shall be accompanied by a deposit Buyer's sole and exclusive remedy in respect of $1,500,000; which funds such third party shall agree may be used by Seller to pay the Break-Up Fee to Buyer in the situation described in clause termination, (i) above; (iiiiv) no prospective purchaser will be permitted to bid at the Hearing on the Sale Motion Auction unless such party has been deemed "financially qualified" by Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital ("HLHZ"), Seller's investment banker; , (ivv) no prospective purchaser who bids for the Property at the hearing on Buyer's acquisition of the Property Auction shall be entitled to purchase the Property unless such prospective purchaser offers to purchase the Property for consideration which is (A) at least $4,000,000 500,000 greater than the consideration set forth in this Agreement (including all cash, non-cash consideration and assumed liabilities) and (B) otherwise on terms at least as favorable to the Seller as those set forth in this Agreement, and (vvi) after any initial overbid, all further overbids must include cash be in increments of at least $1,000,000500,000. Should overbidding take place, the Buyer shall have the right, but not the obligation, to participate in the overbidding and to be approved as the overbidder at the hearing on the Sale Motion Approval Hearing based upon any such overbid. If the Bankruptcy Court approves a sale to Buyer based on an overbid by Buyer, Buyer shall receive credit against the purchase price in the amount of the Break-Up Fee. Should an overbidder other than Buyer be approved at the hearing on the Sale Motion, Buyer shall, the day after such hearing and concurrently with the payment of the Break-Up Fee to Buyer, shall deliver to the person designated by Seller such approved overbidder all third party reports, studies and the like materials obtained by Buyer resulting from third party consultants in connection with Buyer's due diligence investigation. (i) Due Diligence investigations. Following the Bankruptcy Court declines filing of the Sale Procedure Motion, the Seller shall use reasonable efforts to enter obtain the Procedure Order, or Order (ii) the date on which the Procedure Order is not entered on or before the date which and becomes final is 20 days following the Execution Date (referred to herein as the "Sale Procedure Order Entry PeriodDate"), then in either such event, Buyer shall have the right, upon written notice delivered to Seller not later than two (2) business days following the earlier of the declination of the Court or expiration of the Procedure Order Entry Period to terminate this Agreement. Delivery of such notice of termination may be made by facsimile addressed to counsel for Seller. If Buyer timely gives written notice of termination, this Agreement and the transactions contemplated herein shall terminate and Buyer and Seller shall be relieved of any further liability or obligation hereunder other than the obligation to pay to Buyer the Deposit (together with interest) pursuant to Section 2.1(b). Should Buyer decline to timely deliver to Seller written notice of termination, Buyer shall conclusively be deemed to have waived the condition provided for in this Section 8.4. 1. Upon the timely entry of the Procedure Order in form and substance acceptable to Buyer, the condition set forth in this Section 8.4.1 shall be deemed satisfied.

Bankruptcy Court Approval of Sale Procedures. Promptly -------------------------------------------- following the Execution Date (and in no event later than ten (10) business days thereafter), Seller will file with the Bankruptcy Court (and personally serve counsel for the official creditors' committee, the members of the official creditors' committee, the creditors listed on the 20 largest list, all creditors requesting special notice and all other parties required by law to receive such notice) a motion (the "Sale Procedure Motion"), ) with the Bankruptcy Court requesting the entry of an order in form and substance acceptable to Buyer, for an order Buyer (the "Procedure Order") (i) fixing the time, date, and location of a hearing (the "Approval Hearing") to approve Seller's consummation of this Agreement, (ii) fixing the time and date of an auction (the "Auction") to be held at the offices of Xxxxxxxx Xxxxx Xxxxxx & Xxxxx, Atlanta, Georgia, at which higher and better offers to purchase the Property may be presented to Seller, (iii) providing that if Seller receives from a third party a higher and better offer to purchase the Property at the Auction, and such third party offer is subsequently approved by the Bankruptcy Court which provides that: (i) if (x) this Agreement has not been terminated (a) due and closes as provided by its terms, then Buyer will be entitled to a breach by Buyer or (b) by Buyer due to the failure of the condition set forth in Section 4.2.8 and (y) the Bankruptcy Court enters its order approving the sale of the Property (or any material portion thereof) to any party other than Buyer, receive from Seller will on the next business day following entry of such order pay to Buyer a flat fee payment (not dependent on amounts actually expended or incurred by Buyer) in cash or other immediately available good funds in the amount of $1,500,000 3% of Purchase Price (the "Break-Up Fee"); (ii) all third party offers to be considered at the hearing on the Sale Motion (as defined below in Section 8.4.2 below) which payment shall be in writing and delivered made to Seller and Buyer no later than forty-eight (48) hours prior to such hearing, together concurrently with satisfactory evidence the consummation of such third party's financial ability to perform its obligations under such offer and shall be accompanied by a deposit of $1,500,000; which funds such third party shall agree may be used by Seller to pay the Break-Up Fee to Buyer in the situation described in clause sale, (i) above; (iiiiv) no prospective purchaser will be permitted to bid at the Hearing on the Sale Motion Auction unless such party has been deemed "financially qualified" by Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital ("HLHZ"), Seller's investment banker; , (ivv) no prospective purchaser who bids for the Property at the hearing on Buyer's acquisition of the Property Auction shall be entitled to purchase the Property unless such prospective purchaser offers to purchase the Property for consideration which is at least $4,000,000 2,000,000 greater than the consideration set forth in this Agreement (including all cash, non-cash consideration and assumed liabilities) and otherwise on terms at least as favorable to Seller as those set forth in this Agreement, and (vvi) after any initial overbid, all further overbids must include cash be in increments of at least $1,000,000500,000. Should overbidding take place, Buyer shall have the right, but not the obligation, to participate in the overbidding and to be approved as the overbidder at the hearing on the Sale Motion Approval Hearing based upon any such overbid. If the Bankruptcy Court approves a sale to Buyer based on an overbid by Buyer, Buyer shall receive credit against the purchase price in the amount of the Break-Up Fee. Should an overbidder other than Buyer be approved at the hearing on the Sale Motion, Buyer shall, the day after such hearing and concurrently with the payment of the Break-Up Fee to Buyer, shall deliver to the person designated by Seller such approved overbidder all third party reports, studies and the like materials obtained by Buyer resulting from third party consultants in connection with Buyer's due diligence investigation. (i) Due Diligence investigations. Following the Bankruptcy Court declines filing of the Sale Procedure Motion, Seller shall use reasonable efforts to enter obtain the Procedure Order, or Order (ii) the date on which the Procedure Order is not entered on or before the date which and becomes final is 20 days following the Execution Date (referred to herein as the "Sale Procedure Order Entry PeriodDate"), then in either such event, Buyer shall have the right, upon written notice delivered to Seller not later than two (2) business days following the earlier of the declination of the Court or expiration of the Procedure Order Entry Period to terminate this Agreement. Delivery of such notice of termination may be made by facsimile addressed to counsel for Seller. If Buyer timely gives written notice of termination, this Agreement and the transactions contemplated herein shall terminate and Buyer and Seller shall be relieved of any further liability or obligation hereunder other than the obligation to pay to Buyer the Deposit (together with interest) pursuant to Section 2.1(b). Should Buyer decline to timely deliver to Seller written notice of termination, Buyer shall conclusively be deemed to have waived the condition provided for in this Section 8.4. 1. Upon the timely entry of the Procedure Order in form and substance acceptable to Buyer, the condition set forth in this Section 8.4.1 shall be deemed satisfied.