Common use of Bankruptcy Court Approval Clause in Contracts

Bankruptcy Court Approval. Seller agrees that upon execution of this Agreement by the parties hereto, Seller shall prepare and file a motion with the Bankruptcy Court seeking, approval of this Agreement, including the following terms and conditions relating to the submission of bids ("Overbids") for the Assets to be sold hereunder: (a) Only persons or entities that comply with the following procedures will be deemed qualified bidders ("Qualified Bidders") at the hearing on the motion for approval of the sale of the Acquired Assets contemplated herein (the "Sale Hearing"). Buyer shall be deemed a Qualified Bidder at the Sale Hearing. (b) All Qualified Bidders must prequalify at least ten (10) days before the Sale Hearing. In order to prequalify, any person or entity intending to submit an Overbid must provide to Seller (i) sufficient evidence of the person or entity's ability to complete the transaction and (ii) a deposit of $100,000.00. (c) Any initial Overbid must be in a minimum amount of $4,000,000.00 (the "Initial Overbid"). Any Initial Overbid must be for the purchase of the Assets on substantially the same terms as set forth in this Agreement, must be all cash and must be closed within the timeframe required by this Agreement. (d) If a qualified Initial Overbid is received, bidding will continue at the Sale Hearing in increments of not less than $100,000.00 in value. (e) All Overbids must be for all, and not less than all, of the Assets. (f) If a sale of any of the Assets is consummated with a party other than Buyer, Seller shall, at the Closing of the transaction, (1) return Buyer's deposit in full, and (2) pay to Buyer a break-up fee equal to 2.5% of the total consideration for the purchase and sale.

Bankruptcy Court Approval. Seller agrees that upon (a) As soon as practicable, but in any event within four business days following the execution of this Agreement, the Sellers shall file a motion in form and substance reasonably satisfactory to the Purchaser (the "Motion") under Sections 105, 363 and 1146(c) of the Bankruptcy Code seeking entry of an order (the "Bankruptcy Court Approval") approving this Agreement and the transactions contemplated hereby and containing the provisions set forth in (i) through (xi) below. The Bankruptcy Court Approval, substantially in the form of which is attached hereto as Exhibit B, shall, among other things: (i) grant the relief requested in the Motion; (ii) ratify and approve the execution and delivery of this Agreement by the Sellers and the Trustee on behalf of the Sellers and authorize the Sellers' performance hereunder and to authorize them to execute and deliver any additional documents and instruments requested by the Purchaser and to perform thereunder in order to carry out the provisions of and transactions contemplated by this Agreement; (iii) authorize and direct the Sellers to sell the Target Securities held by them, pursuant to the terms and conditions herein, to the Purchaser, free and clear of all and any Liens, liabilities and Claims of every kind or nature; (iv) authorize and direct the Trustee on behalf of the Sellers to vote the Target Securities in accordance with the provisions of Section 5.4; (v) determine that the Purchaser is a good faith purchaser pursuant to Section 363(m) of the Bankruptcy Code; (vi) determine that the Purchaser is not deemed to have, de facto or otherwise, merged with or into the Sellers or to be a mere continuation of the Sellers; (vii) determine that the Purchase Price is a fair and reasonable price for the Target Securities held by the Sellers; (viii) confirm the adequacy of notice to all creditors and parties hereto, Seller shall prepare and file a motion with in interest; (ix) provide for the retention of jurisdiction in the Bankruptcy Court seeking, approval of this Agreement, including the following terms and conditions over matters relating to the submission transactions contemplated in this Agreement as they relate to the Sellers; (x) exempt the transactions contemplated hereby from transfer taxes pursuant to Section 1146(c) of bids the Bankruptcy Code; and ("Overbids"xi) declare that neither the Company nor any Subsidiary of the Company nor any of their respective assets or properties is directly or indirectly liable for or subject to any Claim that has been or may be asserted against the Assets Sellers or any of them, the Consolidated Estate, or any affiliate (other than the Company or its Subsidiaries) of the Sellers or of the Company or its Subsidiaries to be sold hereunder: the extent that such Claim is based in whole or in part upon (ai) Only persons actions (or entities inactions) of or by the Sellers, the Consolidated Estate, any of their affiliates or any Person acting in concert with them (other than the Company or its Subsidiaries) or (ii) the fact that comply with the following procedures Company or any of its Subsidiaries were at any time affiliates of the Sellers or any of them, including, without limitation, (A) claims that have been scheduled in the Bankruptcy Case, (B) claims evidenced by proofs of claim filed in the Bankruptcy Case, (C) claims relating to Taxes, (D) claims under ERISA, and (E) Environmental Claims, and enjoin any and all holders of any such claim from asserting, prosecuting or otherwise pursuing any such claim against the Company or any of its Subsidiaries or any of their respective assets or properties; provided, that if the Bankruptcy Court will be deemed qualified bidders not grant such declaration and injunction for all or any of the matters enumerated in subparagraphs ("Qualified Bidders"A) at through (E) above, the hearing on Sellers and the motion for Consolidated Estate shall and hereby do (in the event that such injunction and declaration is not granted and subject to the approval of the sale of Bankruptcy Court without any stay thereof being in force), jointly and severally, indemnify Parent, the Acquired Assets contemplated herein Purchaser and their successors, permitted assigns and affiliates, and their respective officers, directors, employees, agents, representatives and affiliates (collectively, the "Sale HearingPurchaser Indemnified Parties"). Buyer ) from and against and shall reimburse the same for and in respect of any and all losses, costs, fines, liabilities, claims, penalties, damages (other than consequential damages) and expenses (including all legal fees and expenses) of any nature or kind, known or unknown, fixed, accrued, absolute or contingent, liquidated or unliquidated (collectively "Losses") which may be suffered, sustained or incurred by, or claimed or assessed against, any of them or to which any of them may be subject, in connection with any and all Claims, suits or Losses which arise from or are related to the matters set forth above but not so covered by such declaration and injunction; provided, however, that any claims for indemnification under this Section 5.5(a) that are not asserted against the Sellers and the Consolidated Estate by the Purchaser Indemnified Parties on or before substantial consummation of any Chapter 11 plan for the Sellers shall be deemed a Qualified Bidder at forever barred and discharged. The Sellers shall promptly notify the Sale HearingPurchaser of any action taken by the Bankruptcy Court with respect to the approval required hereunder. (b) All Qualified Bidders must prequalify at least ten (10) days before the Sale Hearing. In order to prequalify, any person or entity intending to submit an Overbid must provide to Seller (i) sufficient evidence Each of the person Sellers shall use its reasonable best efforts to seek the Bankruptcy Court Approval on or entity's ability before January 10, 2002. Each of the Sellers shall neither take any action nor fail to complete take any action, which action or failure to act would reasonably be expected to result in the transaction and (ii) a deposit failure to obtain the Bankruptcy Court Approval. Without limiting the generality of $100,000.00the foregoing, none of the Sellers shall propose any motion to the Bankruptcy Court or take action relating to the Bankruptcy Case which is inconsistent with the terms of this Agreement or the Bankruptcy Court Approval. (c) Any initial Overbid must be in a minimum amount of $4,000,000.00 Except (i) with respect to the "Initial Overbid"). Any Initial Overbid must be for the purchase of the Assets on substantially the same terms as set forth in this Agreement, must be all cash Sellers' obligations pursuant to Sections 1.1 and must be closed within the timeframe required by this Agreement. (d) If a qualified Initial Overbid is received, bidding will continue at the Sale Hearing in increments of not less than $100,000.00 in value. (e) All Overbids must be for all, and not less than all, of the Assets. (f) If a sale of any of the Assets is consummated with a party other than Buyer, Seller shall, at the Closing of the transaction, (1) return Buyer's deposit in full2.2 hereof, and (2ii) pay with respect to Buyer a break-up fee equal the Purchaser's obligations pursuant to 2.5% Sections 1.2 and 2.3 hereof, this Agreement shall be effective as of the total consideration for date hereof. Sections 1.1, 1.2, 2.2 and 2.3 hereof shall become effective at such time as the purchase and saleBankruptcy Court Approval shall be granted without any stay thereof being in force.

Bankruptcy Court Approval. Seller agrees that upon (a) Promptly after the execution of this Agreement by the parties heretoparties, Seller Sellers and SRC shall prepare and file a motion with the Bankruptcy Court seeking, approval of this Agreement, including the following terms and conditions relating to the submission of bids ("Overbids") for the Assets to be sold hereunder: (a) Only persons or entities that comply with the following procedures will be deemed qualified bidders ("Qualified Bidders") at the hearing on the a motion for approval of the sale of the Acquired Assets contemplated herein (the "Sale HearingMotion")) which asks the Bankruptcy Court to enter, unless Sellers and SRC receive a higher and better offer for the Assets in accordance with Section 8.1(b) below, an order (the "Sale Order"): (i) approving this Agreement as the highest and best offer for the Assets and the transactions contemplated hereby in accordance with Section 363 of the Bankruptcy Code and finding, among other things, that Buyer is a good faith purchaser for value entitled to the protections of Section 363(m) of the Bankruptcy Code, (ii) approving the sale of, and authorizing Sellers and SRC to transfer to Buyer, the Assets free and clear of any and all liens (other than liens that Buyer has agreed to permit or assume hereunder or hereafter) pursuant to Section 363(f) of the Bankruptcy Code; and (iii) approving the assumption by Sellers and SRC and assignment to Buyer of the Store Leases and Assumed Contracts and authorizing the payment by Sellers and SRC of all cure amounts due the other parties to such agreements. Buyer The forms of the Sale Motion and the Sale Order shall be deemed a Qualified Bidder at the Sale Hearingacceptable to Sellers, SRC and Buyer to their reasonable satisfaction. (b) All Qualified Bidders must prequalify at least ten (10) days before The Sale Motion also shall ask the Bankruptcy Court to schedule a hearing on the Sale Hearing. In Motion on the first available date and to order to prequalify, that at such hearing any person or entity intending to submit an Overbid must provide to Seller (including Buyer) may make a higher and better offer for the Assets provided: (i) sufficient evidence of any such offer as determined by Sellers and SRC is on substantially the person or entity's ability same terms and subject to complete the transaction and same conditions set forth in this Agreement; (ii) any such person or entity (other than Buyer) provides Sellers and SRC a $150,000 cash deposit which shall be applied as a credit against the purchase price if such person or entity is the successful bidder; (iii) any such initial offer is at least $100,000 more than the cash portion of the purchase price set forth in Section 4.1(a) above; and (iv) any such subsequent offer is at least $100,000.0050,000 more than the immediately preceding offer; and (v) any such person or entity provides evidence satisfactory to Sellers and SRC verifying that the offeror has the ability to provide the full amount of the purchase price to Sellers and SRC in immediately available funds at the Closing. (c) Any initial Overbid must be in a minimum amount of $4,000,000.00 (The Sale Motion also shall ask that the "Initial Overbid"). Any Initial Overbid must be Bankruptcy Court order the Sellers and SRC to reimburse Buyer for the purchase actual out of pocket costs and expenses incurred by Buyer with financial consultants, accountants and legal counsel in relation to the Assets on substantially the same terms as transaction set forth in this Agreement, must herein if any person or entity other than Buyer is the successful bidder. Reimbursement shall be all cash and must be closed within limited to the timeframe required by this Agreementlesser of Buyer's actual expenses or $50,000. (d) If a qualified Initial Overbid is receivedSubject to Section 12.1(c) below, bidding will continue at Sellers and SRC shall use their good faith best efforts to prosecute the Sale Hearing in increments of not less than $100,000.00 in value. (e) All Overbids must be for all, Motion to a successful conclusion and not less than all, otherwise comply with all applicable requirements of the AssetsBankruptcy Code and the Bankruptcy Rules applicable thereto. (f) If a sale of any of the Assets is consummated with a party other than Buyer, Seller shall, at the Closing of the transaction, (1) return Buyer's deposit in full, and (2) pay to Buyer a break-up fee equal to 2.5% of the total consideration for the purchase and sale.

Bankruptcy Court Approval. Seller agrees that upon execution The Closing of the transactions contemplated herein is subject to the following events (collectively "Bankruptcy Court Approval"): (a) The Bankruptcy Court shall have entered an order (the "Approval Order"): (i) approving the sale of the Business on the terms set forth herein, pursuant to Sections 363(b) and 363(f) of the Bankruptcy Code; (ii) finding that, as of the Closing Date, the transactions contemplated by this Agreement by effect a legal, valid, enforceable and effective sale and transfer of the parties hereto, Seller Purchase Shares to Buyer and shall prepare and file a motion vest Buyer with the Purchase Shares free and clear of any Security Interests as contemplated in this Agreement; (iii) finding that the consideration provided by Buyer pursuant to this Agreement constitutes reasonably equivalent value and fair consideration for the Purchase Shares; (iv) finding that Buyer is a good faith purchaser of the Purchase Shares as that term is used in Section 363(m) of the Bankruptcy Court seekingCode, approval and is entitled to the protections provided by such Section; (v) finding that the Buyer is not a successor to Seller or otherwise liable for any liability of Seller or any Affiliate thereof (other than the Company and the Subsidiary); (vi) authorizing PSINet, in its capacity as the sole stockholder of Seller, to approve the sale and purchase of the Purchase Shares to Buyer as contemplated by this Agreement and to perform its obligations under Article 10 of this Agreement, and (vii) approving any other agreement or arrangement contemplated by this Agreement, including the following terms and conditions relating without limitation any transfers by Seller or PSINet to the submission Company or the Subsidiary as contemplated by Section 5.9 of bids ("Overbids") for this Agreement. The Approval Order shall be substantially in the Assets form of Exhibit C hereto, subject to be sold hereunder: (a) Only persons such modifications as are acceptable to Seller in its reasonable discretion, provided, that neither Buyer nor Seller shall object to changes that are not reasonably likely, from the standpoint of Buyer or entities that comply with Seller, as applicable, adversely to affect in any material manner the following procedures will be deemed qualified bidders ("Qualified Bidders") at the hearing on the motion for approval economic benefit of the sale of the Acquired Assets contemplated herein (the "Sale Hearing"). Buyer shall be deemed a Qualified Bidder at the Sale Hearing.Acquisition to such Party; and (b) All Qualified Bidders must prequalify at least ten (10) days before the Sale Hearing. In order to prequalify, any person or entity intending to submit an Overbid must provide to Seller (i) sufficient evidence of the person or entity's ability to complete the transaction and (ii) The Approval Order shall have become a deposit of $100,000.00Final Approval Order. (c) Any initial Overbid must be in a minimum amount of $4,000,000.00 (the "Initial Overbid"). Any Initial Overbid must be for the purchase of the Assets on substantially the same terms as set forth in this Agreement, must be all cash and must be closed within the timeframe required by this Agreement. (d) If a qualified Initial Overbid is received, bidding will continue at the Sale Hearing in increments of not less than $100,000.00 in value. (e) All Overbids must be for all, and not less than all, of the Assets. (f) If a sale of any of the Assets is consummated with a party other than Buyer, Seller shall, at the Closing of the transaction, (1) return Buyer's deposit in full, and (2) pay to Buyer a break-up fee equal to 2.5% of the total consideration for the purchase and sale.

Bankruptcy Court Approval. Seller agrees that upon execution of this Agreement by the parties heretoNot later than January 30, 2018, Seller shall prepare and file a motion with the Bankruptcy Court seeking, approval of this Agreement, including the following terms and conditions relating to the submission of bids ("Overbids") for the Assets to be sold hereundershall: (a) Only persons or entities that comply with commence the following procedures will be deemed qualified bidders ("Qualified Bidders") at the hearing on the motion for approval of the sale of the Acquired Assets contemplated herein (the "Sale Hearing"). Buyer shall be deemed a Qualified Bidder at the Sale Hearing.Chapter 11 Case; (b) All Qualified Bidders must prequalify at least ten file therein a motion (10the “Sale Motion”) seeking (i) approval of and authorization to perform this Agreement and to sell the Purchased Assets to Buyer free and clear of all Encumbrances pursuant to Code Section 363, and (ii) entry of the Sale Order, expressly including the Bankruptcy Court’s determination that Buyer is, and upon completion of the Closing shall be, a purchaser in good faith entitled to the protections of Code Section 363(m); and (c) file therein a motion (the “Bid Procedures Motion”) seeking entry of an order (the “Bid Procedures Order”) setting a date for a hearing on the Sale Motion (the “Sale Hearing”) and a deadline not less than three (3) business days before the Sale Hearing. In order Hearing for filing and service of objections to prequalifythe Sale Motion and higher or better offers for the Purchased Assets (each, any person or entity intending to submit an Overbid must provide to Seller a “Counterbid”), specifying that (i) sufficient evidence of the person or entity's ability to complete the transaction and Seller shall solicit Counterbids, (ii) if any Counterbid is timely received, Buyer and such counterbidder(s) shall each have an opportunity to submit a deposit final sealed bid to be received by Seller’s counsel not later than 4:00 p.m. on the second business day preceding the date scheduled for the Sale Hearing (unless the Bankruptcy Court specifies a different deadline), and (iii) if this Agreement is terminated by Buyer pursuant to Sections 18(a)(ii) or 18(a)(v), by either party pursuant to Section 18(a)(iv) if by reason of a failure by Seller to use reasonable efforts to prosecute the Sale Motion and the Bid Procedures Motion, or by Seller pursuant to Section 18(a)(vi), Seller shall, no later than two (2) business days following such termination, pay to Buyer a breakup fee in the amount of $100,000.00. 64,000 (cthe “Breakup Fee”). If Seller is unable to pay the Breakup Fee at that time, then the Breakup Fee shall be an allowed priority administrative expense claim and shall be paid by the earlier of (i) Any initial Overbid must two (2) business days following the consummation of a sale of Seller’s assets to another buyer, or (ii) the effective date of a plan in the Chapter 11 Case. The Bid Procedures Order will be in a minimum amount of $4,000,000.00 (form mutually acceptable to Buyer and Seller. Without limiting the "Initial Overbid"). Any Initial Overbid must be for the purchase generality of the Assets on substantially foregoing, the same terms Bid Procedures Order shall provide that no claim may be credit bid unless and to the extent that such claim has been allowed as set forth a properly perfected secured claim by final order of the Bankruptcy Court. Seller shall not modify, or consent to the modification of, the Bid Procedures Order or the Sale Order without the prior written consent of Buyer. Notwithstanding the foregoing, in this Agreementthe event the Bid Procedures Order that is entered by the Bankruptcy Court (which shall be in a form approved by Buyer pursuant to the preceding sentence) does not approve the Breakup Fee, must be all cash Buyer shall have the right to assert a request to the Bankruptcy Court for substantial contribution under Code Section 503(b), including without limitation, for attorneys’ fees. Seller shall use reasonable efforts to prosecute the Sale Motion and must be closed within the timeframe required Bid Procedures Motion. In support of Seller’s efforts to obtain entry of the Bid Procedures Order and the Sale Order, Buyer shall extend such cooperation as Seller may reasonably request, including being prepared to provide, and providing if so requested by this Agreement. (d) If a qualified Initial Overbid is receivedSeller or the Bankruptcy Court, bidding will continue evidence at the Sale Hearing concerning Buyer’s good faith (within the meaning of Code Section 363(m)), lack of conduct of the type specified in increments of not less than $100,000.00 in value. (e) All Overbids must be for allCode Section 363(n), and not less than all, adequate assurance of future performance of the AssetsPieris Agreement within the meaning of Code Section 365(f)(2)(B). (f) If a sale of any of the Assets is consummated with a party other than Buyer, Seller shall, at the Closing of the transaction, (1) return Buyer's deposit in full, and (2) pay to Buyer a break-up fee equal to 2.5% of the total consideration for the purchase and sale.

Bankruptcy Court Approval. Seller agrees that upon execution A. Notwithstanding anything to the contrary contained herein, this Contract, including Seller's obligations hereunder and the sale of this Agreement by Property to Purchaser as contemplated hereby, is subject to (a) higher and better offers for all or a portion of the parties heretoProperty, Seller shall prepare and file a motion with obtained pursuant to an order of the Bankruptcy Court seekingestablishing, approval of this Agreementin form and substance satisfactory to Seller, including procedures substantially in the following terms and conditions relating to the submission of bids ("Overbids") for the Assets to be sold hereunder: (a) Only persons or entities that comply with the following procedures will be deemed qualified bidders ("Qualified Bidders") at the hearing on the motion for approval of the sale of the Acquired Assets contemplated herein form annexed hereto as Exhibit Q (the "Sale HearingSALE PROCEDURES ORDER"). Buyer shall be deemed a Qualified Bidder at the Sale Hearing. ) and (b) All Qualified Bidders must prequalify at least ten (10) days before entry of the Sale HearingOrder in form and substance satisfactory to Seller. In order to prequalify, any person Purchaser understands that Seller's obligations under this Contract shall not be effective or entity intending to submit an Overbid must provide to enforceable against Seller (i) sufficient evidence of unless and until (x) Purchaser's offer, as represented by this Contract (as hereafter modified or supplemented) is deemed by the person or entity's ability Bankruptcy Court to complete be the transaction highest and best offer for the Property and (y) the Bankruptcy Court has entered the Sale Order, and (ii) a deposit if, in the Seller's exercise of $100,000.00its fiduciary duty, the Seller determines, prior to the entry of the Sale Order that consummation of the transactions contemplated hereunder is not in the best interests of its Chapter 11 estate and creditors, Seller may terminate this Contract without penalty, in which event, the Purchaser shall be deemed to have waived all claims, damages, actions and causes of action of whatever kind and nature (including any claims for attorney's fees), whether known or unknown, fixed or contingent, matured or unmatured, liquidated or unliquidated or otherwise, arising from, related to, or concerning the Contract; provided, however, that the Purchaser does not waive its right to recover its Deposit. B. In furtherance of the transactions contemplated herein, the parties agree that the sale of Property to Purchaser shall be approved in accordance with the following terms: (i) Purchaser and Seller shall cooperate with prosecuting and obtaining entry of the Sale Order. (ii) In the event (a) the request for entry of the Sale Order is denied, or (b) the Sale Order is not entered on or before the date which is one hundred five (105) days from the Execution Date, or (c) Any initial Overbid must be in a minimum amount of $4,000,000.00 (the "Initial Overbid"). Any Initial Overbid must be for the purchase Legal Restraint of the Assets on substantially the same terms as set forth Sale Order remains in this Agreement, must be all cash and must be closed within the timeframe required by this Agreement. place for thirty (d30) If a qualified Initial Overbid is received, bidding will continue at days following entry of the Sale Hearing Order, either the Purchaser or the Seller may terminate this Contract without penalty, in increments which event, the Purchaser shall be entitled to return of not less than $100,000.00 in valueits Deposit and shall be deemed to have waived all other claims, damages, actions and causes of action of whatever kind and nature (including any claims for attorney's fees), whether known or unknown, fixed or contingent, matured or unmatured, liquidated or unliquidated or otherwise, arising from, related to, or concerning the Contract. (e) All Overbids must be for all, and not less than all, of the Assets. (f) If a sale of any of the Assets is consummated with a party other than Buyer, Seller shall, at the Closing of the transaction, (1) return Buyer's deposit in full, and (2) pay to Buyer a break-up fee equal to 2.5% of the total consideration for the purchase and sale.

Bankruptcy Court Approval. Seller agrees that upon execution (a) In the event CoreExpress becomes a debtor in a Chapter 11 Case, then on or before four (4) Business Days after the commencement of this Agreement by the parties heretoChapter 11 Cases, Seller CoreExpress shall prepare and file a motion or motions with the Bankruptcy Court seekingseeking entry of (i) the Approval Order approving, approval of this Agreementinter alia, including the following terms and conditions relating to the submission of bids ("Overbids") for the Assets to be sold hereunder: (a) Only persons or entities that comply with the following procedures will be deemed qualified bidders ("Qualified Bidders") at the hearing on the motion for approval of the sale of the Acquired Assets contemplated herein to Purchaser pursuant to Sections 363 and 365 of the Bankruptcy Code, and (ii) an order substantially in the form attached hereto as Annex B (the "Sale HearingProcedure Order"). Buyer , inter alia, (a) approving the Termination Amount and providing that, in the event the obligation of CoreExpress to pay Purchaser the Termination Amount arises, such obligation shall constitute an administrative expense under Sections 503(b) and 507(a)(1) of the Bankruptcy Code and shall be deemed payable in accordance with the provisions of Section 6.1 hereto without further order of the Bankruptcy Court, (b) establishing procedures and deadlines for the submission and consideration of competing offers, including, without limitation, that (1) a Qualified Bidder competing offer to purchase or dispose of the Assets (a "Competing Offer") must be in substantially the same form as this Agreement, (2) a Competing Offer shall not be considered to be a higher and better offer unless, at a minimum, such offer provides for aggregate consideration in cash of at least $21,000,000 (with respect to the initial round of bidding) and of at least $100,000 in excess of the aggregate consideration contained in such bidder's prior Competing Offer (with respect to each subsequent round of bidding, if any), and (3) Purchaser shall be entitled at its option to make a revised offer following such Competing Offer, and (c) scheduling a hearing to consider entry of the Approval Order and providing that notice of such hearing be given to all of CoreExpress' creditors and interest holders of record and published in the Wall Street Journal (National Edition) and is otherwise in accordance with Bankruptcy Rule 2002. Purchaser and CoreExpress agree to make promptly any filings, to take all actions and to use their reasonable best efforts to obtain entry of the Sale HearingProcedure Order, entry of the Approval Order and any and all other approvals and orders necessary or appropriate for the consummation of the transactions contemplated hereby. (b) All Qualified Bidders must prequalify at least ten (10) days before the Sale Hearing. In order Prior to prequalify, any person or entity intending to submit an Overbid must provide to Seller (i) sufficient evidence entry of the person or entity's ability Approval Order, CoreExpress and Purchaser shall accurately inform the Bankruptcy Court of all material facts of which they are aware relating to complete this Agreement and the transaction and (ii) a deposit of $100,000.00transactions contemplated hereby. (c) Any initial Overbid must be in a minimum amount of $4,000,000.00 (If the "Initial Overbid"). Any Initial Overbid must be for the purchase Approval Order, Sale Procedure Order or any other orders of the Assets on substantially Bankruptcy Court relating to this Agreement shall be appealed by any Person (or a petition for certiorari or motion for rehearing or reargument shall be filed with respect thereto), CoreExpress agrees to take all steps as may be reasonable and appropriate to defend against such appeal, petition or motion, and Purchaser agrees to cooperate in such efforts, and each party hereto agrees to use its reasonable best efforts to obtain an expedited resolution of such appeal; provided, however, that nothing herein shall preclude the same terms as set forth in this Agreement, must be all cash parties hereto from consummating the transactions contemplated herein if the Approval Order shall have been entered and must be closed within the timeframe required by this Agreementhas not been stayed. (d) If a qualified Initial Overbid is receivedPrior to Closing, bidding will continue at the Sale Hearing in increments of not less than $100,000.00 in value. (e) All Overbids must be for all, and not less than all, of the Assets. (f) If a sale of any of the Assets is consummated with a party to Purchaser pursuant to this Agreement and the other than Buyer, Seller shall, at the Closing transactions contemplated by this Agreement shall have been approved by order of the transaction, (1) return Buyer's deposit in full, Bankruptcy Court pursuant to Sections 363 and (2) pay to Buyer a break-up fee equal to 2.5% 365 of the total consideration for Bankruptcy Code, pursuant to the purchase Approval Order in substantially the form attached hereto as Annex C. Purchaser and saleCoreExpress agree to use their reasonable best efforts to cause the Bankruptcy Court to enter an Approval Order.

Bankruptcy Court Approval. Seller agrees (i) Hem-Onc and the Stockholders acknowledge that, as a condition for closing on the transactions contemplated herein, the consent of the Bankruptcy Court must be obtained. Towards that upon end, Hem-Onc, Response and, by execution of a copy of this Agreement, the Banks hereby agree that they shall take any and all actions as may be reasonably necessary or desirable to cause the Bankruptcy Court to consider and approve the transactions contemplated herein at a hearing to approve the same scheduled for March 29, 2002 (as the same may be rescheduled by mutual written agreement of Hem-Onc and Response). In furtherance thereof, promptly following execution of this Agreement by the all parties hereto, Seller Response shall prepare submit or cause to be submitted to the Bankruptcy Court, as a supplement to the motion Respoxxx xxxxxxxxxx xxxxx xor approval of the transactions contemplated by this Agreement, a copy of this Agreement and file a motion with the schedules hereto. (ii) If the Bankruptcy Court seekingdoes not approve this Agreement substantially in accordance with its terms, or affirmatively rejects this Agreement, then this Agreement shall automatically terminate upon the occurrence of such event (collectively "Court Rejection"), unless otherwise agreed by Hem-Onc and Response, in writing. Further, if the Bankruptcy Court has not yet ruled on the motion to approve this Agreement by April 30, 2002 or if the Bankruptcy Court's prior approval of this Agreement has been appealed and remains on appeal as of April 30, 2002 (collectively "April 30th Status"), then either party may terminate this Agreement at any time after April 30, 2002, upon delivery of written notice to other party; provided, that, neither Response nor Hem-Onc, as the case may be, shall be permitted to so terminate this Agreement if such failure to approve this Agreement by April 30, 2002, or the appeal of this Agreement which remains in effect as of April 30, 2002, arises from a breach by either party of the foregoing terms of this Section 10(b) or a breach by Response of Sections 3 or 13 hereof, or results from any willful action or inaction of such party designed to delay the approval of this Agreement. Upon termination of this Agreement, all terms of the Service Agreement, if any, that have been altered by this Agreement shall be reinstated in full force and effect as of January 1, 2002. (iii) The Banks shall have the right to withdraw their consent to and approval of this Agreement in the event of a Court Rejection or if the April 30th Status materializes, unless the Court Rejection or April 30th Status arises from the Banks' failure to support the transactions contemplated herein or the Banks' failure to support approval by the Bankruptcy Court of this Agreement, as otherwise required herein. Notwithstanding anything herein to the contrary, if the Banks breach their agreement to actively support the transactions contemplated herein or the Bankruptcy Court's approval of this Agreement, including as described herein, then Hem-Onc shall have the following terms right to terminate this Agreement by delivery of written notice to Response and conditions relating to the submission of bids ("Overbids") for the Assets to be sold hereunder: (a) Only persons or entities that comply with the following procedures will be deemed qualified bidders ("Qualified Bidders") at the hearing on the motion for approval of the sale of the Acquired Assets contemplated herein (the "Sale Hearing"). Buyer shall be deemed a Qualified Bidder at the Sale HearingBanks. (biv) All Qualified Bidders must prequalify at least ten (10) days before Notwithstanding anything herein to the Sale Hearing. In order to prequalifycontrary, any person Hem-Onc and Response agree that until the Bankruptcy Court approves this Agreement and the transactions contemplated hereby, if either Hem-Onc or entity intending to submit an Overbid must provide to Seller (i) sufficient evidence of the person or entity's ability to complete the transaction and (ii) a deposit of $100,000.00. (c) Any initial Overbid must Response shall be in a minimum amount breach of $4,000,000.00 (the "Initial Overbid"). Any Initial Overbid must be for the purchase of the Assets on substantially the same terms as set forth in this Agreement, must be all cash and must be closed within the timeframe required other party shall have the unilateral right, exercisable by delivery of written notice to the breaching party to terminate this Agreement, without penalty. (d) If a qualified Initial Overbid is received, bidding will continue at the Sale Hearing in increments of not less than $100,000.00 in value. (e) All Overbids must be for all, and not less than all, of the Assets. (f) If a sale of any of the Assets is consummated with a party other than Buyer, Seller shall, at the Closing of the transaction, (1) return Buyer's deposit in full, and (2) pay to Buyer a break-up fee equal to 2.5% of the total consideration for the purchase and sale.

Bankruptcy Court Approval. Seller agrees that upon execution a. If (x) the Company commences a case under Chapter 11 of this Agreement by the parties heretotitle 11, Seller shall prepare and file a motion with the Bankruptcy Court seeking, approval of this Agreement, including the following terms and conditions relating to the submission of bids ("Overbids") for the Assets to be sold hereunder: (a) Only persons or entities that comply with the following procedures will be deemed qualified bidders ("Qualified Bidders") at the hearing on the motion for approval of the sale of the Acquired Assets contemplated herein United States Code (the "Sale Hearing"“Bankruptcy Code”). Buyer , in a bankruptcy court (the “Bankruptcy Court”), or (y) an involuntary proceeding shall be deemed a Qualified Bidder at commenced or an involuntary petition shall be filed against the Sale Hearing.Company seeking (b) All Qualified Bidders must prequalify at least ten (10) days before the Sale Hearing. In order to prequalify, any person or entity intending to submit an Overbid must provide to Seller (i) sufficient evidence liquidation, reorganization or other relief in respect of the person Company or entity's ability to complete the transaction and its debts, or of a substantial part of its assets, under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a deposit of $100,000.00. (c) Any initial Overbid must be in a minimum amount of $4,000,000.00 (the "Initial Overbid"). Any Initial Overbid must be receiver, trustee, custodian, sequestrator, conservator or similar official for the purchase Company or for a substantial part of its assets (any of the Assets foregoing, a “Bankruptcy Proceeding”), then the Company file an application to employ BRRE, on substantially the same terms as set forth in this Agreement, must under Section 327 of the Bankruptcy Code, with compensation of BRRE to be all cash and must be closed within approved under Section 328 of the timeframe required by this Agreement. (d) If a qualified Initial Overbid is received, bidding will continue at the Sale Hearing in increments of not less than $100,000.00 in value. (e) All Overbids must be for allBankruptcy Code, and not less than allutilize best efforts to ensure that such application is considered on an expedited basis and approved by an order (the “Approval Order”) that provides, of the Assets.among other things, as follows: (f) If a sale of any of the Assets is consummated with a party other than Buyer, Seller shall, at the Closing of the transaction, (1) return Buyer's deposit in fullapproval of BRRE’s retention pursuant to, and and/or assumption, of this Agreement; (2) pay the payment of all fees and reimbursement of expenses hereunder to Buyer a break-up fee equal BRRE in accordance with this Agreement; and (3) authorizing the Company to 2.5% take such further actions as are necessary or appropriate to carry out the terms and conditions of this Agreement. In so agreeing to seek an Approval Order, the Company acknowledges that it believes that the value to the Company of BRRE’s services derives in substantial part from BRRE’s general real estate restructuring experience and expertise and that, accordingly, the structure and amount of the total consideration contingent Compensation is reasonable regardless of the number of hours to be expended by BRRE’s professionals in the performance of the services to be provided hereunder. b. The Company will provide BRRE with a copy of the pleadings in connection with requesting any Approval Order prior to submission to the Bankruptcy Court for BRRE’s review and comment (without limiting the purchase foregoing, the Company shall use best efforts to give BRRE at least three (3) days’ prior notice of such filing) and saleadvise BRRE of any objection or hearings pertaining to BRRE’s retention. Any Approval Order must be reasonably acceptable to BRRE and the continuation of BRRE’s obligations hereunder will be conditioned upon the grant of such order. If an acceptable Approval Order is not obtained within sixty (60) days from the date that it is filed, BRRE shall have the right to terminate this Agreement at any time thereafter, but prior to the date upon which the Approval Order is issued (for clarity, after the Approval Order is issued BRRE may only terminate this Agreement in accordance with Section 2 hereof or as otherwise provided in the Approval Order). Further, if an Approval Order is not obtained authorizing BRRE’s services and fees as set forth herein, the Company agrees to amend the application in conjunction with, and with reasonable approval from, BRRE, and request a hearing to review the amended application. In the event that the Company is unable to obtain an acceptable Approval Order, and the Agreement is terminated or rejected, BRRE reserves the right to seek a substantial contribution claim for any rights or obligations incurred or accrued prior to such termination or rejection. Notwithstanding anything to the contrary in this Agreement, in the event of a Bankruptcy Proceeding arising in connection with this Agreement shall be submitted to the exclusive jurisdiction of the Bankruptcy Court having jurisdiction over the Company, and each Party hereby waives any defenses or objections based on lack of jurisdiction, improper venue, and/or forum non conveniens. From and after entry of an Approval Order, BRRE shall conduct the Covered Transactions in accordance with the terms of the Approval Order in all material respects.

Bankruptcy Court Approval. Seller agrees that upon execution The Bankruptcy Court shall have entered an Order or Orders (the "Sale Order") in form and substance acceptable to Buyer which, among other things, (i) approves, pursuant to Sections 105 and 363 of this Agreement by the parties hereto, Seller shall prepare and file a motion with the Bankruptcy Court seekingCode, approval with such changes only as are mutually approved by Buyer and Seller: (A) the execution, delivery and performance by Seller of this Agreement, including each and every term and condition hereof, and the following terms other instruments and conditions relating to the submission of bids agreements contemplated hereby; ("Overbids"B) for the Assets to be sold hereunder: (a) Only persons or entities that comply with the following procedures will be deemed qualified bidders ("Qualified Bidders") at the hearing on the motion for approval of the sale of the Acquired Purchased Assets contemplated herein to Buyer on the terms set forth herein, including free and clear of all Liens (other than Permitted Liens), claims (other than Assumed Liabilities), encumbrances and interests (which shall include, for the "Sale Hearing"avoidance of doubt, the Liens, claims, encumbrances and interests incurred by Seller pursuant to that certain Secured Super Priority Debtor-In-Possession Loan Agreement dated as of April 4, 2017, as amended and in effect). Buyer , withand such Liens, claims encumbrances and interests shall be deemed a Qualified Bidder at attach to the Sale Hearing. (b) All Qualified Bidders must prequalify at least ten (10) days before the Sale Hearing. In order to prequalify, any person or entity intending to submit an Overbid must provide to Seller (i) sufficient evidence proceeds of sale of the person or entity's ability to complete Purchased Assets; and (C) the transaction and performance by Seller of its obligations under this Agreement; (ii) authorizes Seller to assume and assign to Buyer the Acquired Intellectual Property; and (iii) finds that Buyer is a deposit "good faith" buyer within the meaning of $100,000.00. Section 363(m) of the Bankruptcy Code and that this Agreement was negotiated, proposed and entered into by the Parties without collusion, in good faith, and from arm’s-length bargaining positions; (civ) Any initial Overbid must the Bankruptcy Court shall retain jurisdiction to, among other things, interpret, implement, and enforce the terms and provisions thereof; and (v) this Agreement and the transactions contemplated hereby are not subject to rejection or avoidance by any chapter 7 or chapter 11 trustee of Seller pursuant to Section 363(n) of the Bankruptcy Code. The Sale Order shall be in a minimum amount of $4,000,000.00 (the "Initial Overbid"). Any Initial Overbid must be for the purchase full force and effect and as of the Assets on substantially the same terms as set forth in this AgreementClosing shall not be stayed, must be all cash and must be closed within the timeframe required by this Agreement. (d) If a qualified Initial Overbid is received, bidding will continue at the Sale Hearing in increments of not less than $100,000.00 in value. (e) All Overbids must be for all, and not less than all, of the Assets. (f) If a sale of any of the Assets is consummated with a party other than Buyer, enjoined or modified. Seller shall, at the Closing of the transaction, (1) return Buyer's deposit in full, and (2) pay shall have delivered to Buyer a break-up fee equal to 2.5% certified copy of the total consideration for the purchase and saleSale Order.

Bankruptcy Court Approval. Seller agrees (a) Sellers shall use their respective best efforts to obtain the Sale Order which, among other things, (i) determines that upon execution of this Agreement was proposed by Buyer in good faith and represents the parties heretohighest and best offer for the Assets and should be approved, Seller shall prepare and file (ii) determines that Buyer is a motion with good faith purchaser under Section 363(m) of the Bankruptcy Court seekingCode and that the provisions of Section 363(n) of the Bankruptcy Code have not been violated, approval (iii) authorizes and directs Sellers to assume this Agreement and sell the Assets to Buyer pursuant to this Agreement and Sections 363 and 365 of the Bankruptcy Code, free and clear of all liens, claims, interests, liabilities and Encumbrances (including any and all "interests" in the Assets within the meaning of Section 363(f) of the Bankruptcy Code), other than the Assumed Liabilities and the Permitted Real Property Encumbrances, such that Buyer shall not incur any liability as a successor to the Business, (iv) authorizes and directs Sellers to execute, deliver, perform under, consummate and implement, this Agreement, together with all additional instruments and documents, including the following terms Indemnity Escrow Agreement, that may be reasonably necessary or desirable to implement the foregoing; (v) authorizes claims and conditions relating recourse by Buyer against the Indemnity Deposit for any reason set forth in Section 9.01, including breach of any representation and warranty of S&W in this Agreement, regardless of whether such breach relates to Assets owned or leased by S&W or any other Seller (regardless of whether such other Seller is a debtor in the submission Bankruptcy Cases), (vi) authorizes claims and recourse by Buyer against the LC Deposit as provided in the Indemnity Escrow Agreement and (vii) determines that Buyer is not a successor to Sellers or otherwise liable for any Excluded Liability and permanently enjoins each and every holder of bids ("Overbids") for the Assets an Excluded Liability from commencing, continuing or otherwise pursuing or enforcing any remedy, claim or cause of action against Buyer relative to be sold hereunder: (a) Only persons or entities that comply with the following procedures will be deemed qualified bidders ("Qualified Bidders") at the hearing on the motion for approval of the sale of the Acquired Assets contemplated herein (the "Sale Hearing"). Buyer shall be deemed a Qualified Bidder at the Sale Hearingsuch Excluded Liability. (b) All Qualified Bidders must prequalify at least ten (10) days before Sellers shall obtain the Sale Hearing. In order to prequalify, any person or entity intending to submit an Overbid must provide to Seller (i) sufficient evidence of the person or entity's ability to complete the transaction Executory Contract Assumption and (ii) a deposit of $100,000.00Assignment Order. (c) Any initial Overbid must be in a minimum amount of $4,000,000.00 (the "Initial Overbid"). Any Initial Overbid must be Sellers shall promptly make any filings, take all actions, and use their respective best efforts to obtain any and all other approvals and orders necessary or appropriate for the purchase consummation of the Assets on substantially Transaction, subject to their obligations to comply with any order of the same terms as set forth in this Agreement, must be all cash and must be closed within the timeframe required by this AgreementBankruptcy Court. (d) If In the event an appeal is taken, or a qualified Initial Overbid stay pending appeal is receivedrequested, bidding will continue at from the Sale Hearing Order or the Executory Contract Assumption and Assignment Order, Sellers shall immediately notify Buyer of such appeal or stay request and shall provide to Buyer within one business day a copy of the related notice of appeal or order of stay. Sellers shall also provide Buyer with written notice of any motion or application filed in increments connection with any appeal from either of not less than $100,000.00 in valuesuch orders. (e) All Overbids must be for all, Buyer shall cooperate in providing such information and not less than all, of evidence as is necessary to obtain the Assetsorders described in this Section 5.17. (f) If a sale of any of the Assets is consummated with a party other than Buyer, Seller shall, at the Closing of the transaction, (1) return Buyer's deposit in full, and (2) pay to Buyer a break-up fee equal to 2.5% of the total consideration for the purchase and sale.

Bankruptcy Court Approval. Seller agrees that upon execution The Bankruptcy Court shall have entered the Approval Order, which, among other things, (i) approves, pursuant to sections 105, 363 and 365 of this Agreement by the parties hereto, Seller shall prepare and file a motion with the Bankruptcy Court seekingCode: (A) the execution, approval delivery and performance by Sellers of this Agreement, including each and every term and condition hereof, and the following terms other instruments and conditions relating to the submission of bids agreements contemplated hereby, ("Overbids"B) for the Assets to be sold hereunder: (a) Only persons or entities that comply with the following procedures will be deemed qualified bidders ("Qualified Bidders") at the hearing on the motion for approval of the sale of the Acquired Purchased Assets contemplated herein to Buyer on the terms set forth herein, and (C) the "Sale Hearing"). Buyer shall be deemed a Qualified Bidder at the Sale Hearing. (b) All Qualified Bidders must prequalify at least ten (10) days before the Sale Hearing. In order to prequalify, any person or entity intending to submit an Overbid must provide to Seller (i) sufficient evidence performance by Sellers of the person or entity's ability to complete the transaction and their obligations under this Agreement; (ii) authorizes Sellers to assume and assign to Buyer the Assumed Contracts, (iii) finds that Buyer is a deposit “good faith” buyer within the meaning of $100,000.00. (csection 363(m) Any initial Overbid must of the Bankruptcy Code and such Approval Order shall be in a minimum amount of $4,000,000.00 (the "Initial Overbid"). Any Initial Overbid must be for the purchase full force and effect and as of the Assets Closing and shall not be stayed, enjoined or modified; (iv) provide that neither Buyer nor any of its Affiliates or stockholders will have any derivative, successor, transferee or vicarious liability of any kind or character whether fixed or contingent, for Liabilities of Sellers (whether under federal or state Law or otherwise) on substantially account of any Taxes arising, accruing, or payable under, out of, in connection with, or in any way relating to the same terms as set forth operation of Sellers’ business prior to the Closing; (v) waive in this Agreementall necessary jurisdictions, must be (A) the so-called “bulk sales,” “bulk transfer” and similar Laws, including those related to Taxes and (B) the imposition of any Taxes incurred in connection with the Transaction and the Approval Order; (vi) enjoin all cash Persons from commencing any proceeding or taking any action against Buyer or any of its Affiliates to recover any claim that such Person has solely against Sellers or their Affiliates; and must be closed within (iv) provide that the timeframe required obligations of Sellers relating to Taxes, whether arising under Law, by this AgreementAgreement or otherwise, shall be fulfilled by Sellers. (d) If a qualified Initial Overbid is received, bidding will continue at the Sale Hearing in increments of not less than $100,000.00 in value. (e) All Overbids must be for all, and not less than all, of the Assets. (f) If a sale of any of the Assets is consummated with a party other than Buyer, Seller shall, at the Closing of the transaction, (1) return Buyer's deposit in full, and (2) pay to Buyer a break-up fee equal to 2.5% of the total consideration for the purchase and sale.

Bankruptcy Court Approval. Seller agrees that upon execution The Vendors will have obtained on or before December 16, 1996 an order from Bankruptcy Court which implements the sale of this Agreement by the parties hereto, Seller shall prepare and file a motion Purchased Assets to the Purchaser in accordance with the Bankruptcy Court seeking, approval of this Agreement, including the following terms and conditions relating to set forth herein. Such order shall be in a form reasonably approved by the submission of bids ("Overbids") for Purchaser and its bankruptcy counsel. The order and the Assets to be sold hereunderbankruptcy approval process shall include: (a) Only persons or entities that comply with the following procedures will be deemed qualified bidders ("Qualified Bidders") at the hearing on the motion for Court's approval of the sale of the Acquired Purchased Assets contemplated herein (to the "Sale Hearing"). Buyer shall be deemed a Qualified Bidder at Purchaser upon the Sale Hearing.terms and conditions set forth herein; (b) All Qualified Bidders must prequalify at least ten (10) days before the Sale Hearing. In order to prequalifyentry of an appropriate and final Order which, any person or entity intending to submit an Overbid must provide to Seller inter alia, finds and concludes that: (i) sufficient evidence EFL and EFEX are authorized to proceed with the sale of the person or entity's ability Purchased Assets upon the terms and conditions set forth herein pursuant to complete '363(b) and (f) of the transaction and Bankruptcy Code; (ii) a deposit any objections timely filed with respect to the sale of $100,000.00.the Purchased Assets shall be overruled or the interest of such objectors have been satisfied or adequately provided for by the Court or EFL and EFEX; (ciii) Any initial Overbid must be in a minimum amount the estates of $4,000,000.00 EFL and EFEX are authorized to proceed with the sale of the Purchased Assets upon the terms and conditions set forth herein pursuant to '363(b) and (f) of the "Initial Overbid"). Any Initial Overbid must be Bankruptcy Code; (iv) no competitive bid for the purchase Purchased Assets has been received which complies with the bidding requirements approved by the Bankruptcy Court; (v) the Purchase Price as set forth herein represents a fair value of the Purchased Assets; (vi) the sale of the Purchased Assets on substantially the same terms contemplated herein is in the best interest of the estates of EFL and EFEX; (vii) EFL, EFEX, the Committee and the Purchaser have acted and negotiated this transaction in good faith as set forth in this Agreement, must be all cash and must be closed within ' 363(m) of the timeframe required by this Agreement.Bankruptcy Code; (dviii) If a qualified Initial Overbid is received, bidding will continue at the Sale Hearing in increments Court shall retain jurisdiction for the purposes of not less than $100,000.00 in value.enforcing the provisions of the Order; (eix) All Overbids must the sale to the Purchaser of the Purchased Assets by the estates of EFL or EFEX shall be for allmade, pursuant to ' 363(f), free and clear of any and all liens, security interests, charges, and other encumbrances and claims of any kind, except for the Permitted Encumbrances and Assumed Obligations; (x) any fees or commissions due to any brokers involved in the consummation of this transaction as a result of the acts of the Committee, the Vendors or the Subsidiaries shall be paid from the proceeds of the Purchase Price and shall not less than allbe the obligations of the Purchaser, provided, however, that the Purchaser shall be responsible for its own broker's fees or commission, if any; (xi) upon completion of the winding up of the Subsidiaries, the Liquidation is final, effective and complete, and the Vendors are authorized to sell all of the Purchased Assets of the Subsidiaries (except the Swiss Royalty) of every kind and nature, including, without limitation, all lands, licenses, permits, mineral rights, reserves, ore stockpiles, equipment, infrastructure, contracts, inventory, intellectual property, general intangibles, notes, receivables, machinery, vehicles, equipment, furniture and fixtures, such assets are property of the estate of EFL and all remaining liabilities (not assumed by the Purchaser), if any, of the Assets.Subsidiaries will be paid in full by the liquidating agent. Under no circumstances shall any such unpaid liabilities be the obligation of the Purchaser or its nominees except as expressly set forth herein; (fxii) If a sale the estates of EFL and EFEX are authorized to assume and assign to the Purchaser or its nominees, the following executory contracts: A. the Processing Contract; B. the Gobi Region Mineral Agreement; D. the Argunexco Joint Venture; E. the Cameco Agreement; F. the Japanese Contracts; and G. any other Contracts necessary for the reasonable operation of the Business and any of the Assets is consummated with a party other than Buyer, Seller shall, at the Closing of the transaction, (1) return Buyer's deposit in full, and (2) pay to Buyer a break-up fee equal to 2.5% of the total consideration for the purchase and sale.Purchased Assets;

Bankruptcy Court Approval. Seller agrees that upon execution of this Agreement by the parties hereto, Seller shall prepare and file a motion with the Bankruptcy Court seeking, approval of this Agreement, including the following terms and conditions relating to the submission of bids ("Overbids") for the Assets to be sold hereunder: (a) Only persons or entities that comply with On November 5, 2002 Sellers filed a motion seeking the following approval of sale procedures will be deemed qualified bidders ("Qualified Bidders"the “Sale Procedures Motion”). Sellers shall pursue the Sale Procedures Motion and seek entry of the order therein in the form attached hereto as Exhibit D (the “Sale Procedures Order”) at the hearing on the motion for approval grounds that, inter alia, the New DIP Loan provided by Buyer has preserved the value of Sellers’ assets and the negotiation of the sale of Agreement by Buyer and its offer for the Acquired Purchased Assets contemplated herein (will maximize the "Sale Hearing"). Buyer shall value to be deemed a Qualified Bidder at obtained from the Sale HearingPurchased Assets. (b) All Qualified Bidders must prequalify at least ten As soon as practicable after execution of this Agreement, Sellers shall file with the Bankruptcy Court an application or motion (10the “Sale Motion”) days before the Sale Hearing. In order (reasonably satisfactory in form and substance to prequalify, any person or entity intending to submit an Overbid must provide to Seller Buyer) on shortened time seeking: (i) sufficient evidence approval of all transactions contemplated under the Agreement on the terms contained herein and the performance of Sellers of their obligations under the Agreement, including without limitation the sale, transfer, assignment, conveyance and delivery of the person Purchased Assets to Buyer (or entity's ability to complete its successors or permitted assigns) free and clear of all Liens (except for the transaction and Permitted Liens); (ii) a deposit approval of $100,000.00the Sellers’ assumption and assignment of all of the Assumed Contracts to Buyer; (iii) approval of the Breakup Fee on the grounds that, inter alia, the New DIP Loan provided by Buyer has preserved the value of the Sellers’ assets and the negotiation of the Agreement by Buyer and its offer for the Purchased Assets will maximize the value to be obtained from the Purchased Assets; and (iv) entry of the Sale Order. (c) Any initial Overbid must be in Provided that Buyer has provided a minimum amount of $4,000,000.00 (the "Initial Overbid"). Any Initial Overbid must be for the purchase list of the Assets Assumed Contracts pursuant to Section 6.6, not less than twelve (12) days prior to the hearing on substantially the same terms as set forth Sale Motion or on any such date agreed in this Agreementwriting by Buyer, must be all cash Sellers shall provide written notice to each of the non-Seller parties to each Assumed Contract of their intent to assume and must be closed within the timeframe required by this Agreementassign such Assumed Contracts (including any Cure Amounts) to Buyer. (d) If a qualified Initial Overbid is received, bidding will continue at Sellers further agree to promptly take such actions as are reasonably requested by Buyer to assist in obtaining Bankruptcy Court approval of the Agreement and entry of the Sale Hearing in increments of not less than $100,000.00 in valueOrder, including without limitation furnishing affidavits, declarations or other documents or information for filing with the Bankruptcy Court. (e) All Overbids must be for all, and not less than all, of the Assets. (f) If a sale of any of the Assets is consummated with a party other than Buyer, Seller shall, at the Closing of the transaction, (1) return Buyer's deposit in full, and (2) pay to Buyer a break-up fee equal to 2.5% of the total consideration for the purchase and sale.

Bankruptcy Court Approval. Seller agrees (a) Sellers shall use all commercially reasonable efforts to obtain Bankruptcy Court approval of the Sale Order which, among other things, will contain findings of fact and conclusions of law (i) finding that upon execution of this Agreement was proposed by the parties hereto, Seller shall prepare in good faith and file represents the highest and best offer for the Purchased Assets; (ii) finding that Purchaser is a motion with good faith purchaser under Section 363(m) of the Bankruptcy Court seekingCode and that the provisions of Section 363(n) of the Bankruptcy Code have not been violated; (iii) authorizing and directing Sellers to consummate the transaction contemplated by this Agreement and sell only the Purchased Assets to Purchaser pursuant to this Agreement and Sections 363 and 365 of the Bankruptcy Code, approval free and clear of all Encumbrances (including any and all “interests” in the Purchased Assets within the meaning of Section 363(f) of the Bankruptcy Code), other than the Assumed Liabilities and the Permitted Encumbrances, such that Purchaser shall not incur any liability as a successor to the Business; (iv) authorizing and directing Sellers to execute, deliver, perform under, consummate and implement, this Agreement, including together with all additional instruments and documents that may be reasonably necessary or desirable to implement the following terms foregoing; (v) finding that Purchaser is not a successor in interest to Sellers or otherwise liable for any Retained Liability, (vi) finding that Purchaser’s acquisition of the Purchased Assets and conditions relating assumption of the Assumed Liabilities does not reflect a significant continuity of the business of Sellers and permanently enjoins each and every holder of a Retained Liability from commencing, continuing or otherwise pursuing or enforcing any remedy, claim or cause of action against Purchaser relative to the submission of bids such Retained Liability; ("Overbids"vii) for the Assets to be sold hereunder: (a) Only persons or entities finding that comply with the following procedures will be deemed qualified bidders ("Qualified Bidders") at the hearing on the motion for approval of the sale of the Acquired Purchased Assets contemplated herein does not constitute a sub xxxx plan of reorganization; and (the "Sale Hearing"). Buyer shall be deemed a Qualified Bidder viii) directing Sellers, at the direction of the Purchaser, to immediately consummate the sale of the Purchased Assets without awaiting the expiration of any applicable time period for appealing the Sale HearingOrder. (b) All Qualified Bidders must prequalify at least ten (10) days before the Sale Hearing. In order Sellers shall use all commercially reasonable efforts to prequalify, any person or entity intending to submit an Overbid must provide to Seller (i) sufficient evidence obtain Bankruptcy Court approval of the person or entity's ability to complete the transaction Executory Contract Assumption and (ii) a deposit of $100,000.00Assignment Order. (c) Any initial Overbid must be in a minimum amount of $4,000,000.00 (the "Initial Overbid"). Any Initial Overbid must be for the purchase Sellers shall use all commercially reasonable efforts to obtain Bankruptcy Court approval of the Assets on substantially Purchaser Protection and Bidding Procedures Order that, among other things, (i) approves and makes binding the same terms as set forth in Sellers’ entry into this Agreement, (ii) approves the Break-Up Fee, (iii) provides that Purchaser’s claim to the Break-Up Fee, shall, in the event Sellers elect to sell the Purchased Assets to a Qualified Bidder, constitute a first priority lien against and be paid out of the proceeds of the sale to such Qualified Bidder or out of the proceeds of any other sale, transfer or other disposition of the Purchased Assets, (iii) establishes a date by which initial Qualified Bids must be all cash submitted, (iv) establishes the Sale Hearing procedures for an auction at which only Qualified Bidders who have previously submitted a Qualified Bid may bid, (v) sets the Minimum Incremental Bid Amount at Three Hundred Fifty Thousand Dollars ($350,000) for the initial incremental bid and must be closed within the timeframe required by this AgreementTwo Hundred Fifty Thousand Dollars ($250,000) for any additional incremental bids and (vi) requires Sellers to promptly provide a copy of any Qualified Bid to Purchaser and to any Qualified Bidder who has submitted a Qualified Bid. (d) If a qualified Initial Overbid is receivedSellers shall promptly make any filings, bidding will continue at take all actions, and use its commercially reasonable efforts to obtain any and all other approvals and orders necessary or appropriate, or as otherwise reasonably requested by Purchaser, for consummation of the Sale Hearing in increments transactions contemplated by this Agreement , subject to its obligations to comply with any order of not less than $100,000.00 in valuethe Bankruptcy Court. (e) All Overbids must be for allIn the event an appeal is taken, or a stay pending appeal is requested, from the Sale Order, the Executory Contract Assumption and not less than allAssignment Order or the Purchaser Protection and Bidding Procedures Order, Sellers shall immediately notify Purchaser of such appeal or stay request and shall provide to Purchaser within one (1) business day a copy of the Assetsrelated notice of appeal or order of stay. Sellers shall also provide Purchaser with written notice of any motion or application filed in connection with any appeal from either of such orders. (f) If a sale of any of Purchaser shall cooperate in providing such information and evidence as is reasonably necessary to obtain the Assets is consummated with a party other than Buyer, Seller shall, at the Closing of the transaction, (1) return Buyer's deposit orders described in full, and (2) pay to Buyer a break-up fee equal to 2.5% of the total consideration for the purchase and salethis Section 8.04.

Bankruptcy Court Approval. Seller agrees that upon execution The Bankruptcy Court shall have, not later than 5 Business Days following the commencement of the Cases, entered an order in form and substance reasonably satisfactory to the Underwriters (the “Interim Order”), which Interim Order shall have been entered on such prior notice to such parties (including, without limitation, the holders of the Primed Liens) as may be reasonably satisfactory to the Underwriters, which Interim Order shall, among other things: (i) approve the transactions contemplated in this Agreement by and the parties hereto, Seller shall prepare and file a motion with the Bankruptcy Court seeking, approval of this Agreementother Loan Documents, including the following terms granting of superpriority claim status and conditions relating senior priming and other liens referred to the submission of bids ("Overbids") for the Assets to be sold hereunder:in subsection 2.10 hereof; (a) Only persons or entities that comply with the following procedures will be deemed qualified bidders ("Qualified Bidders") at the hearing on the motion for approval of the sale of the Acquired Assets contemplated herein (the "Sale Hearing"). Buyer shall be deemed a Qualified Bidder at the Sale Hearing. (b) All Qualified Bidders must prequalify at least ten (10) days before the Sale Hearing. In order to prequalify, any person or entity intending to submit an Overbid must provide to Seller (i) sufficient evidence of the person or entity's ability to complete the transaction and (ii) a deposit authorize the use of $100,000.00.cash collateral under the Prepetition Facility through the date that is ten days after an Event of Default under this Agreement; (ciii) Any initial Overbid must be provide adequate protection in a minimum amount of $4,000,000.00 (the "Initial Overbid"). Any Initial Overbid must be for the purchase favor of the Assets holders of the Primed Liens in the form of (x) to the extent of any diminution in value, replacement liens on substantially all post-petition or otherwise unencumbered assets of each Loan Party’s estates (other than Avoidance Actions), junior to the same terms as liens securing the Obligations, (y) subject to the rights of all parties under section 506(b) of the Bankruptcy Code, the payment of reasonable fees and expenses of the administrative agent under the Prepetition Facility (including the reasonable fees and disbursements of one lead and one local counsel and one financial advisor) within twenty days of the presentation of invoices to the Company with respect thereto, and (z) subject to the rights of all parties under section 506(b) of the Bankruptcy Code, the payment of interest under the Prepetition Facility at the respective contractual non-default rates (with the parties’ rights with respect to additional default interest fully preserved) set forth in this Agreement, must be all cash and must be closed within the timeframe required by this Agreement.Prepetition Facility as applicable after an acceleration of the secured obligations thereunder; and (div) If provide for the automatic termination of the automatic stay to permit the Administrative Agent and the other Secured Creditors to exercise their rights and remedies under this Agreement and the other Loan Documents after five (5) Business Days notice of an Event of Default, with a qualified Initial Overbid is received, bidding will continue at full waiver by the Sale Hearing in increments Loan Parties of not less than $100,000.00 in value.all rights to contest such termination except with respect to the existence of an Event of Default; and (ev) All Overbids must be for all, and not less than all, approve the payment by the Company of all of the Assetsfees set forth herein and in the DIP Fee Letter. (f) If a sale of any of the Assets is consummated with a party other than Buyer, Seller shall, at the Closing of the transaction, (1) return Buyer's deposit in full, and (2) pay to Buyer a break-up fee equal to 2.5% of the total consideration for the purchase and sale.

Bankruptcy Court Approval. Seller agrees that upon (a) Promptly after the execution of this Agreement by the parties hereto, Seller shall prepare and file a motion with the Bankruptcy Court seeking, approval of this Agreement, including the following terms and conditions relating to the submission of bids ("Overbids") for the Assets to be sold hereunder: (a) Only persons or entities that comply with the following procedures will be deemed qualified bidders ("Qualified Bidders") at the hearing on the a motion for approval of the sale of the Acquired Assets contemplated herein (the "Sale HearingMotion")) which asks the Bankruptcy Court to enter, unless Seller receives a higher and better offer for the Assets in accordance with Section 9.1(b) below, an order (the "Sale Order"): (i) approving this Agreement as the highest and best offer for the Assets and the transactions contemplated hereby in accordance with Section 363 of the Bankruptcy Code and finding, among other things, that Buyer is a good faith purchaser for value entitled to the protections of Section 363(m) of the Bankruptcy Code, (ii) approving the sale of, and authorizing Seller to transfer to Buyer, the Assets free and clear of any and all liens (other than liens that Buyer has agreed to permit or assume hereunder or hereafter) pursuant to Section 363(f) of the Bankruptcy Code; and (iii) approving the assumption by Seller and assignment to Buyer of the Store Leases and Assumed Contracts and authorizing the payment by Seller of all cure amounts due the other parties to such agreements. Buyer The forms of the Sale Motion and the Sale Order shall be deemed a Qualified Bidder at the Sale Hearingacceptable to Seller and Buyer to their reasonable satisfaction. (b) All Qualified Bidders must prequalify at least ten (10) days before The Sale Motion also shall ask the Bankruptcy Court to schedule a hearing on the Sale Hearing. In Motion on the first available date and to order that prior to prequalify, or at such hearing any person or entity intending to submit an Overbid must provide to Seller (including Buyer) may make a higher and better offer for the Assets provided: (i) sufficient evidence of any such offer as determined by Seller is on substantially the person or entity's ability same terms and subject to complete the transaction and same conditions set forth in this Agreement; (ii) any such person or entity (other than Buyer) provides Seller a $50,000 cash deposit which shall be applied as a credit against the purchase price if such person or entity is the successful bidder; (iii) any such initial offer is at least $25,000 more than the cash portion of the purchase price set forth in Section 4.1(a) above; and (iv) any such subsequent offer is at least $100,000.0010,000 more than the immediately preceding offer; and (v) any such person or entity provides evidence satisfactory to Seller verifying that the offeror has the ability to provide the full amount of the purchase price to Seller in immediately available funds at the Closing. (c) Any initial Overbid must be in a minimum amount of $4,000,000.00 (The Sale Motion also shall ask that the "Initial Overbid"). Any Initial Overbid must be Bankruptcy Court order the Seller to reimburse Buyer for the purchase actual out of pocket costs and expenses incurred by Buyer with financial consultants, accountants and legal counsel in relation to the Assets on substantially the same terms as transaction set forth in this Agreement, must be all cash and must be closed within the timeframe required by this Agreement. (d) If a qualified Initial Overbid is received, bidding will continue at the Sale Hearing in increments of not less than $100,000.00 in value. (e) All Overbids must be for all, and not less than all, of the Assets. (f) If a sale of herein if any of the Assets is consummated with a party person or entity other than Buyer, Seller shall, at Buyer is the Closing successful bidder. Reimbursement shall be limited to the lesser of the transaction, (1) return Buyer's deposit in full, and (2) pay to Buyer a break-up fee equal to 2.5% of the total consideration for the purchase and saleactual expenses or $25,000.00.

Bankruptcy Court Approval. As soon as possible following the Decision Date (assuming that no cure period shall then be in effect) Seller agrees that upon execution of this Agreement by and the parties heretoSubsidiary Lessees shall prepare, Seller shall prepare file and file thereafter in good faith support a motion with seeking the entry by the Bankruptcy Court seekingof an order (the "ORDER"), approval which Order: (A) shall approve the consummation by Seller and the Subsidiary Lessees of the transactions set forth herein; and (B) shall provide that: (i) Title shall be transferred to Buyer free and clear of all encumbrances except for any encumbrances which Buyer has expressly agreed to assume under the terms of this Agreement; (ii) Buyer is purchasing the Acquired Assets in "good faith" within the meaning of Section 363(m) of the Bankruptcy Code; (iii) the transfer of the Acquired Assets constitutes a transfer for reasonably equivalent value and fair consideration; (iv) there exist valid business reasons for the prompt and speedy sale of the Acquired Assets; (v) the sale of the Acquired Assets is in the best interests of Seller, including and the following terms Subsidiary Lessees, and conditions relating their respective estates creditors and holders of equity interests; (vi) all holders of any encumbrances and of any claims against Seller or any Subsidiary Lessee (including, but not limited to any claims of any taxing authorities in respect of Taxes asserted to be due and owing (the "TAX CLAIMS") will be forever barred from asserting any encumbrances or claims against Buyer, its successor and assigns, the Acquired Assets or any other assets of Buyer and its successors and assigns as a consequence of such Tax Claims; (vii) all claims and encumbrances against and interests in Seller or any Subsidiary Lessee or their respective assets shall be channeled to the submission Purchase Price proceeds, and following the Closing Date, the sole and exclusive right and remedy available to such claimants and interest holders with respect to their claims against Seller or any Subsidiary Lessee shall be the right to assert claims against the Purchase Price proceeds payable to Seller; (viii) there has been proper and adequate service of bids ("Overbids") a motion by Seller and the Subsidiary Lessees seeking the relief granted by the Order and proper and adequate notice and an opportunity for the Assets a hearing given to be sold hereunder: (a) Only persons or entities that comply with the following procedures will be deemed qualified bidders ("Qualified Bidders") at the hearing on the motion for approval all holders of any encumbrances, and all other parties required by law to receive notice of the sale of the Acquired Assets contemplated herein Assets; (ix) the "Sale Hearing"). Buyer shall be deemed a Qualified Bidder at Bankruptcy Court will retain jurisdiction to enforce the Sale Hearing. (b) All Qualified Bidders must prequalify at least ten (10) days before Order to bar the Sale Hearing. In order to prequalify, any person enforcement or entity intending to submit an Overbid must provide to Seller (i) sufficient evidence of the person or entity's ability to complete the transaction and (ii) a deposit of $100,000.00. (c) Any initial Overbid must be in a minimum amount of $4,000,000.00 (the "Initial Overbid"). Any Initial Overbid must be for the purchase of the Assets on substantially the same terms as set forth in this Agreement, must be all cash and must be closed within the timeframe required by this Agreement. (d) If a qualified Initial Overbid is received, bidding will continue at the Sale Hearing in increments of not less than $100,000.00 in value. (e) All Overbids must be for all, and not less than all, of the Assets. (f) If a sale assertion of any of the Assets is consummated with a party encumbrances or other than Buyer, Seller shall, at the Closing of the transaction, (1) return Buyer's deposit in full, claims against Buyer and (2) pay to Buyer a break-up fee equal to 2.5% of the total consideration for the purchase and sale.its successors

Bankruptcy Court Approval. Seller agrees The Bankruptcy Court shall find that (i) Purchaser is a good faitx xxxx xxxe purchaser within the meaning of Section 363(m) of the Bankruptcy Code, (ii) the consideration to be paid by Purchaser to Debtors pursuant to this Agreement is fair and reasonable, (iii) there are exigent business reasons to sell and assign the Assets to Purchaser and such sale and assignment are in the best interest of Debtor, and their creditors, and (iv) the notice provided with respect to the proposed sale to Purchaser i; sufficient under the circumstances of the Bankruptcy Proceedings. Contemporaneously with such finding, the Bankruptcy Court shall enter such orders as may be necessary or desirable (A) to approve this Agreement (including, subject to Section 3.2(b) and Section 11(b) hereof, an order authorizing upon execution the Closing, the assumption and assignment, pursuant to Section 365 of the Bankruptcy Code, of the Executory Station Contracts, the Assumed Contracts, if any, and any and all other executory contracts included in the Assets, by Debtors to Purchaser), except that the assumption and assignment of each respective Executory Station Contract shall not be effective until the completion of the closing under each such Executory Station Contract, subject to Section 3.2(b), Section 6.2 and Section 11 (b) hereof, (B) to authorize Debtors to perform their obligations hereunder so as to immediately consummate the transactions provided for herein in accordance with this Agreement upon the entering of such orders, and (C) to retain jurisdiction over Debtors, Purchaser, and the subject matter of this Agreement to issue and enter such further orders and to grant such relief as may be necessary to effectuate the transfer of all Assets and the transactions contemplated by this Agreement. Notwithstanding anything contained in this Agreement to the parties heretocontrary, Seller shall prepare and file a motion with if the Bankruptcy Court seeking, approval shall approve this Agreement and the transfer of this Agreement, including the following terms and conditions relating Assets insofar as it relates to the submission of bids ("Overbids") Stations, but shall not issue an order providing for the Assets to be sold hereunder: (a) Only persons assignment and assumption of one or entities that comply with more of the following procedures will Executory Station Contracts, this Agreement shall nonetheless be deemed qualified bidders ("Qualified Bidders") at approved and the hearing on Bankruptcy Court Approval shall be deemed issued and the motion for approval of parties shall proceed with the sale of the Acquired Assets contemplated herein remaining Assets, (the "Sale Hearing"). Buyer shall be deemed a Qualified Bidder at the Sale Hearing. (b) All Qualified Bidders must prequalify at least ten (10) days before the Sale Hearing. In order to prequalify, any person or entity intending to submit an Overbid must provide to Seller (i) sufficient evidence of the person or entity's ability to complete the transaction and (ii) a deposit of $100,000.00. (c) Any initial Overbid must be in a minimum amount of $4,000,000.00 (the "Initial Overbid"). Any Initial Overbid must be for the purchase of the Assets on substantially the same terms as set forth in this Agreement, must be all cash and must be closed within the timeframe required by this Agreement. (d) If a qualified Initial Overbid is received, bidding will continue at the Sale Hearing in increments of not less than $100,000.00 in value. (e) All Overbids must be for all, and not less than all, of the Assets. (f) If a sale of excluding any of the Assets is consummated with a party other than BuyerExecutory Station Contracts, Seller shallthe assignment and assumption of which was not approved), at subject to an adjustment, if any, to the Closing of Purchase Price provided for in Section 3.2(b) and the transaction, (1) return Buyer's deposit in full, and (2) pay Debtors shall be free to Buyer a break-up fee equal transfer same to 2.5% of the total consideration for the purchase and saleany third party.

Bankruptcy Court Approval. Seller agrees that upon execution (A) On or before two (2) Business Days after the commencement of this Agreement by the parties heretoChapter 11 Cases, Seller the Sellers shall prepare and file a motion or motions with the Bankruptcy Court seekingseeking entry of (i) the Approval Order (as defined in SECTION 5.11(D)) approving, approval of this AgreementINTER ALIA, including the following terms and conditions relating to the submission of bids ("Overbids") for the Assets to be sold hereunder: (a) Only persons or entities that comply with the following procedures will be deemed qualified bidders ("Qualified Bidders") at the hearing on the motion for approval of the sale of the Acquired Assets contemplated herein (the "Sale Hearing"). Buyer shall be deemed a Qualified Bidder at the Sale Hearing. (b) All Qualified Bidders must prequalify at least ten (10) days before the Sale Hearing. In order to prequalify, any person or entity intending Purchaser pursuant to submit an Overbid must provide to Seller (i) sufficient evidence sections 363 and 365 of the person or entity's ability to complete the transaction Bankruptcy Code, and (ii) an order in substantially in the form attached hero as EXHIBIT B (with such changes thereto as Purchaser shall approve in its sole discretion, the "SALE PROCEDURE ORDER"), INTER ALIA, (a) approving the Termination Amount and the Bankruptcy Termination Amount and providing that, in the event the obligation of the Sellers to pay Purchaser either the Termination Amount or the Bankruptcy Termination Amount arises, such obligation shall constitute an administrative expense under sections 503(b) and 507(a)(1) of the Bankruptcy Code and shall be payable in accordance with the provisions of SECTION 7.01 or SECTION 7.02 without further order of the Bankruptcy Court, (b) establishing procedures and deadlines for the submission and consideration of competing offers, including, without limitation, that (1) a competing offer to purchase or dispose of the Assets (a "COMPETING OFFER") must be in substantially the same form as this Agreement, (2) a Competing Offer shall not be considered to be a higher and better offer unless, at a minimum, such offer provides for aggregate consideration of at least $15,000,000 in excess of the Purchase Price (with respect to the initial round of bidding) and of at least $1,000,000 in excess of the aggregate consideration contained in such bidder's prior Competing Offer (with respect to each subsequent round of bidding, if any) and is otherwise a Superior Proposal (except that Seller's determination of a Superior Proposal with respect to bids in subsequent rounds of bidding shall not require a new determination by the Board of Directors), (3) a Competing Offer must be accompanied by a good faith cash deposit of at least $100,000.0015,000,000 (to be increased to 10% of the Purchase Price if such Competing Offer is accepted by Debtors following the Auction), (4) Purchaser shall be entitled at its option to make a revised offer following such Competing Offer, and (5) Purchaser shall be entitled to credit bid the amount of the Bankruptcy Termination Amount against any revised offer Purchaser may make following such Competing Offer, and (c) scheduling a hearing to consider entry of the Approval Order and providing that notice of such hearing be given to all of Sellers' creditors and interest holders of record and published in the WALL STREET JOURNAL (National Edition) and is otherwise in accordance with Bankruptcy Rule 2002. Purchaser and Sellers agree to make promptly any filings, to take all actions and to use their reasonable best efforts to obtain entry of the Sale Procedure Order, entry of the Approval Order and any and all other approvals and orders necessary or appropriate for the consummation of the transactions contemplated hereby. (cB) Any initial Overbid must Prior to entry of the Approval Order, the Sellers and Purchaser shall accurately inform the Bankruptcy Court of all material facts of which they are aware relating to this Agreement and the transactions contemplated hereby. (C) If the Approval Order, Sale Procedure Order or any other orders of the Bankruptcy Court relating to this Agreement shall be appealed by any Person (or a petition for CERTIORARI or motion for rehearing or reargument shall be filed with respect thereto), the Sellers agree to take all steps as may be reasonable and appropriate to defend against such appeal, petition or motion, and Purchaser agrees to cooperate in such efforts, and each party hereto agrees to use its reasonable best efforts to obtain an expedited resolution of such appeal; PROVIDED, HOWEVER, that nothing herein shall preclude the parties hereto from consummating the transactions contemplated herein if the Approval Order shall have been entered and has not been stayed and Purchaser, in its sole discretion, waives in writing the requirement that the Approval Order be a minimum amount of $4,000,000.00 Final Order. (D) Prior to Closing, the "Initial Overbid"). Any Initial Overbid must be for the purchase sale of the Assets on to Purchaser pursuant to this Agreement and the other transactions contemplated by this Agreement shall have been approved by order of the Bankruptcy Court pursuant to sections 363 and 365 of the Bankruptcy Code, pursuant to the Approval Order in substantially the same terms form attached hereto as set forth EXHIBIT B (with such changes thereto as Purchaser shall approve in this Agreementits sole discretion), must be all cash and must be closed within the timeframe required by this AgreementApproval Order shall have become a Final Order. Purchaser and Sellers agree to use their reasonable best efforts to cause the Bankruptcy Court to enter an Approval Order. (dE) If a qualified Initial Overbid is receivedThe Sellers shall cooperate reasonably with Purchaser and its representatives in connection with the Approval Order, bidding will continue at the Sale Hearing Procedure Order and the bankruptcy proceedings in increments connection therewith. Such cooperation shall include, but not be limited to, consulting with Purchaser at Purchasers' request concerning the status of such proceeding and providing Purchaser with copies of requested pleadings, notices, proposed orders and other documents relating to such proceedings as soon as reasonably practicable prior to any submission thereof to the Bankruptcy Court. Sellers further covenant and agree that the terms of any plan submitted by Sellers to the Bankruptcy Court for confirmation shall not less than $100,000.00 conflict with, supersede, abrogate, nullify, modify or restrict the terms of this Agreement and the rights of Purchaser hereunder, or in value. (e) All Overbids must be for all, and not less than all, any way prevent or interfere with the consummation or performance of the Assetstransactions contemplated by this Agreement including, without limitation, any transaction that is contemplated by or approved pursuant to the Approval Order and the Sale Procedure Order. (f) If a sale of any of the Assets is consummated with a party other than Buyer, Seller shall, at the Closing of the transaction, (1) return Buyer's deposit in full, and (2) pay to Buyer a break-up fee equal to 2.5% of the total consideration for the purchase and sale.

Bankruptcy Court Approval. Seller agrees (a) Sellers shall use their respective best efforts to obtain the Sale Order which, among other things, (i) determines that upon execution of this Agreement was proposed by Buyer in good faith and represents the parties heretohighest and best offer for the Assets and should be approved, Seller shall prepare and file (ii) determines that Buyer is a motion with good faith purchaser under Section 363(m) of the Bankruptcy Court seekingCode and that the provisions of Section 363(n) of the Bankruptcy Code have not been violated, approval (iii) authorizes and directs Sellers to assume this Agreement and sell the Assets to Buyer pursuant to this Agreement and Sections 363 and 365 of the Bankruptcy Code, free and clear of all liens, claims, interests, liabilities and Encumbrances (including any and all "interests" in the Assets within the meaning of Section 363(f) of the Bankruptcy Code), other than the Assumed Liabilities and the Permitted Real Property Encumbrances, such that Buyer shall not incur any liability as a successor to the Business, (iv) authorizes and directs Sellers to execute, deliver, perform under, consummate and implement, this Agreement, together with all additional instruments and documents, including the following terms Indemnity Escrow Agreement, that may be reasonably necessary or desirable to implement the foregoing; (v) authorizes claims and conditions relating recourse by Buyer against the Indemnity Deposit for any reason set forth in Section 9.01, including breach of any representation and warranty of S & W in this Agreement, regardless of whether such breach relates to Assets owned or leased by S & W or any other Seller (regardless of whether such other Seller is a debtor in the submission Bankruptcy Cases), (vi) authorizes claims and recourse by Buyer against the LC Deposit as provided in the Indemnity Escrow Agreement and (vii) determines that Buyer is not a successor to Sellers or otherwise liable for any Excluded Liability and permanently enjoins each and every holder of bids ("Overbids") for the Assets an Excluded Liability from commencing, continuing or otherwise pursuing or enforcing any remedy, claim or cause of action against Buyer relative to be sold hereunder: (a) Only persons or entities that comply with the following procedures will be deemed qualified bidders ("Qualified Bidders") at the hearing on the motion for approval of the sale of the Acquired Assets contemplated herein (the "Sale Hearing"). Buyer shall be deemed a Qualified Bidder at the Sale Hearingsuch Excluded Liability. (b) All Qualified Bidders must prequalify at least ten (10) days before Sellers shall obtain the Sale Hearing. In order to prequalify, any person or entity intending to submit an Overbid must provide to Seller (i) sufficient evidence of the person or entity's ability to complete the transaction Executory Contract Assumption and (ii) a deposit of $100,000.00Assignment Order. (c) Any initial Overbid must be in a minimum amount of $4,000,000.00 (the "Initial Overbid"). Any Initial Overbid must be Sellers shall promptly make any filings, take all actions, and use their respective best efforts to obtain any and all other approvals and orders necessary or appropriate for the purchase consummation of the Assets on substantially Transaction, subject to their obligations to comply with any order of the same terms as set forth in this Agreement, must be all cash and must be closed within the timeframe required by this AgreementBankruptcy Court. (d) If In the event an appeal is taken, or a qualified Initial Overbid stay pending appeal is receivedrequested, bidding will continue at from the Sale Hearing Order or the Executory Contract Assumption and Assignment Order, Sellers shall immediately notify Buyer of such appeal or stay request and shall provide to Buyer within one business day a copy of the related notice of appeal or order of stay. Sellers shall also provide Buyer with written notice of any motion or application filed in increments connection with any appeal from either of not less than $100,000.00 in valuesuch orders. (e) All Overbids must be for all, Buyer shall cooperate in providing such information and not less than all, of evidence as is necessary to obtain the Assetsorders described in this Section 5.17. (f) If a sale of any of the Assets is consummated with a party other than Buyer, Seller shall, at the Closing of the transaction, (1) return Buyer's deposit in full, and (2) pay to Buyer a break-up fee equal to 2.5% of the total consideration for the purchase and sale.

Bankruptcy Court Approval. Seller agrees that upon execution of this Agreement by SFI shall use its reasonable best efforts to obtain the parties heretoSale Order, Seller shall prepare and file a motion with the Bankruptcy Court seekingwhich shall, approval of this Agreement, including the following terms and conditions relating to the submission of bids ("Overbids") for the Assets to be sold hereunder: among other things (a) Only persons or entities determine that comply with this Agreement was proposed and negotiated by Buyer and SFI in good faith and at arm's length and represents the following procedures will highest and best offer for the Capital Stock and should be deemed qualified bidders ("Qualified Bidders") at the hearing on the motion for approval of the sale of the Acquired Assets contemplated herein (the "Sale Hearing"). Buyer shall be deemed a Qualified Bidder at the Sale Hearing. approved; (b) All Qualified Bidders must prequalify at least ten (10determine that Buyer is a good faith purchaser under Section 363(m) days before the Sale Hearing. In order to prequalify, any person or entity intending to submit an Overbid must provide to Seller (i) sufficient evidence of the person or entity's ability to complete Bankruptcy Code and that the transaction and (iiprovisions of Section 363(n) a deposit of $100,000.00. the Bankruptcy Code have not been violated; (c) Any initial Overbid must be in a minimum amount of $4,000,000.00 (authorize and direct SFI to sell the "Initial Overbid"). Any Initial Overbid must be for Capital Stock and the purchase assets to Buyer pursuant to this Agreement and Section 363 of the Bankruptcy Code, free and clear of all liens, claims, interests, liabilities and encumbrances (including any and all "interests" in the Assets on substantially the same terms as set forth in this Agreement, must be all cash and must be closed within the timeframe required by this Agreement. (dmeaning of Section 363(f) If a qualified Initial Overbid is received, bidding will continue at the Sale Hearing in increments of not less than $100,000.00 in value. (e) All Overbids must be for all, and not less than all, of the Assets. (f) If a sale Bankruptcy Code), other than the Assumed Liabilities and any environmental liabilities that attach to the owner of any of the Assets is consummated Capital Stock by operation of law; (d) authorize and direct SFI to assume contracts necessary to the businesses of the Company and Great Lakes under Section 365 of the Bankruptcy Code; (e) authorize and direct SFI to perform any and all of its obligations under Section 14.5 hereof (including the payment of any amounts required thereunder) and otherwise under this Agreement free and clear of all liens, claims, interests and encumbrances of any Person (including, without limitation, any prepetition creditors and debtor-in-possession lenders); (f) authorize and direct SFI to execute, deliver, perform under, consummate and implement this Agreement, together with all additional instruments and documents that may be reasonably necessary or desirable to implement the foregoing; (g) permanently enjoin each and every holder of a party Liability relating to the Capital Stock or the Business incurred on or before the Closing Date from commencing, continuing or otherwise pursuing or enforcing any remedy, claim or cause of action against Buyer relative to such Liability; and (h) provide that the proceeds of any sale of the Business or the Capital Stock to any Person other than Buyer, Seller shall, at the Closing Buyer shall first be applied to the payment of the transactionExpense Reimbursement Amount and the Topping Fee (as defined in Section 14.5 hereof), (1) return Buyer's deposit in full, and (2) pay to the event that a Person other than Buyer a break-up fee equal to 2.5% of purchases the total consideration for Capital Stock or the purchase and saleBusiness.

Bankruptcy Court Approval. Seller agrees that upon execution of The Bankruptcy Court shall have entered the order approving the transactions contemplated by this Agreement by ("Order") and the parties heretoOrder shall not be subject to stay pending appeal. The Order shall provide that (i) this Agreement and the transactions contemplated herein are approved, Seller shall prepare (ii) the Sellers had good and file a motion with the Bankruptcy Court seeking, approval of this Agreement, including the following terms and conditions relating marketable title to the submission Purchased Assets and such title shall be transferred to Purchaser or its designees free of bids ("Overbids") for the Assets all Liens and claims, other than Permitted Liens, and any such Liens or claims which existed prior to be sold hereunder: (a) Only persons or entities that comply with the following procedures will be deemed qualified bidders ("Qualified Bidders") at the hearing on the motion for approval of the sale of the Acquired Purchased Assets contemplated herein (the "Sale Hearing"). Buyer shall be deemed or which arise as a Qualified Bidder at the Sale Hearing. (b) All Qualified Bidders must prequalify at least ten (10) days before the Sale Hearing. In order to prequalify, any person or entity intending to submit an Overbid must provide to Seller (i) sufficient evidence result of the person or entity's ability Employee Benefit Plans shall attach to complete the transaction and Purchase Price paid to the Sellers, (iiiii) a deposit Purchaser is purchasing the Purchased Assets in good faith within the meaning of $100,000.00. ss. 363(m) of the Bankruptcy Code, (civ) Any initial Overbid must the consideration to be in a minimum amount of $4,000,000.00 (paid by the "Initial Overbid"). Any Initial Overbid must be Purchaser for the purchase Business is fair and reasonable, (v) there exist exigent business reasons for the sale, (vi) the sale is in the best interests of the Assets on substantially the same terms as set forth in this Agreementdebtors' (Sellers') estates, must be their creditors and equity security holders, (vii) there has been proper and adequate notice given to all cash and must be closed within the timeframe parties required by this Agreement. (d) If a qualified Initial Overbid is received, bidding will continue at the Sale Hearing in increments of not less than $100,000.00 in value. (e) All Overbids must be for all, and not less than all, law to receive notice of the Assets. (f) If a sale of any of the Assets is consummated with a party other than Buyer, Seller shall, at the Closing of the transactionsale, (1viii) return Buyer's deposit in fullthe Business and Purchased Assets have been adequately marketed and will lose value absent a sale, and (2ix) pay to Buyer a break-up fee equal to 2.5% the requirements of ss. 363 of the total consideration for Bankruptcy Code have been met. The Order shall not impose any material obligations on WinStar, the purchase and salePurchaser or Sellers not contemplated herein.

Bankruptcy Court Approval. Seller agrees that upon execution Notwithstanding any provision to the contrary in the Plan of Liquidation approved in Xxxx’x Chapter 11 proceedings pending in the Bankruptcy Court, Xxxx and/or the Disbursing Agent appointed in the Bankruptcy Case shall file a motion (the "Motion") under Rule 9021 of the Federal Rules of Bankruptcy Procedure seeking an order from the Bankruptcy Court approving this Agreement and authorizing and directing Xxxx and/or the Disbursing Agent to perform the terms of the settlement described herein. Upon approval by the Bankruptcy Court of this Agreement and the settlement described herein and the expiration of any appeal period therefrom, or should such an appeal be taken, then upon the dismissal of that appeal (collectively, “Final Approval”), the Escrow Agent shall release to the Disbursing Agent the Payment, plus any accrued interest, less the attorney’s fees and expenses previously agreed by Xxxx to be paid to its counsel, Xxxxx Xxxxxx LLP (the parties hereto“Authorized Counsel Fees and Expenses”). Upon Final Approval, Seller Xxxxx Xxxxxx LLP shall prepare be immediately authorized to apply that portion of the Payment attributable to Authorized Counsel Fees and file a motion with Expenses in full and final satisfaction of the Authorized Counsel Fees and Expenses. If this Agreement and the settlement described herein are not approved by the Bankruptcy Court seeking(or, approval of as the case may be, by any appellate court to which the Bankruptcy Court order is appealed), then this Agreement, including the following terms Mutual General Releases described in Paragraph 4 below, shall be null and conditions relating void, all amounts held by the Escrow Agent, including accrued interest, shall be returned to Platinum, and the submission of bids ("Overbids") for the Assets to parties agree that no statutory interest shall be sold hereunder: (a) Only persons or entities that comply with the following procedures will be deemed qualified bidders ("Qualified Bidders") at the hearing accrued on the motion for approval of Judgment from the sale of date on which Payment was made until the Acquired Assets contemplated herein (the "Sale Hearing"). Buyer shall be deemed a Qualified Bidder at the Sale Hearingdate on which Payment was returned. (b) All Qualified Bidders must prequalify at least ten (10) days before the Sale Hearing. In order to prequalify, any person or entity intending to submit an Overbid must provide to Seller (i) sufficient evidence of the person or entity's ability to complete the transaction and (ii) a deposit of $100,000.00. (c) Any initial Overbid must be in a minimum amount of $4,000,000.00 (the "Initial Overbid"). Any Initial Overbid must be for the purchase of the Assets on substantially the same terms as set forth in this Agreement, must be all cash and must be closed within the timeframe required by this Agreement. (d) If a qualified Initial Overbid is received, bidding will continue at the Sale Hearing in increments of not less than $100,000.00 in value. (e) All Overbids must be for all, and not less than all, of the Assets. (f) If a sale of any of the Assets is consummated with a party other than Buyer, Seller shall, at the Closing of the transaction, (1) return Buyer's deposit in full, and (2) pay to Buyer a break-up fee equal to 2.5% of the total consideration for the purchase and sale.

Bankruptcy Court Approval. Seller agrees (a) Sellers shall use all commercially reasonable efforts to obtain Bankruptcy Court approval of the Sale Order which, among other things, will contain findings of fact and conclusions of law (i) finding that upon execution of this Agreement was proposed by the parties hereto, Seller shall prepare in good faith and file represents the highest and best offer for the Purchased Assets; (ii) finding that Purchaser is a motion with good faith purchaser under Section 363(m) of the Bankruptcy Court seekingCode and that the provisions of Section 363(n) of the Bankruptcy Code have not been violated; (iii) authorizing and directing Sellers to consummate the transaction contemplated by this Agreement and sell only the Purchased Assets to Purchaser pursuant to this Agreement and Sections 363 and 365 of the Bankruptcy Code, approval free and clear of all Encumbrances (including any and all “interests” in the Purchased Assets within the meaning of Section 363(f) of the Bankruptcy Code), other than the Assumed Liabilities and the Permitted Encumbrances, such that Purchaser shall not incur any liability as a successor to the Business; (iv) authorizing and directing Sellers to execute, deliver, perform under, consummate and implement, this Agreement, including together with all additional instruments and documents that may be reasonably necessary or desirable to implement the following terms foregoing; (v) finding that Purchaser is not a successor in interest to Sellers or otherwise liable for any Retained Liability, (vi) finding that Purchaser’s acquisition of the Purchased Assets and conditions relating assumption of the Assumed Liabilities does not reflect a significant continuity of the business of Sellers and permanently enjoins each and every holder of a Retained Liability from commencing, continuing or otherwise pursuing or enforcing any remedy, claim or cause of action against Purchaser relative to the submission of bids such Retained Liability; ("Overbids"vii) for the Assets to be sold hereunder: (a) Only persons or entities finding that comply with the following procedures will be deemed qualified bidders ("Qualified Bidders") at the hearing on the motion for approval of the sale of the Acquired Purchased Assets contemplated herein does not constitute a sub xxxx plan of reorganization; and (the "Sale Hearing"). Buyer shall be deemed a Qualified Bidder viii) directing Sellers, at the direction of the Purchaser, to immediately consummate the sale of the Purchased Assets without awaiting the expiration of any applicable time period for appealing the Sale HearingOrder. (b) All Qualified Bidders must prequalify at least ten (10) days before the Sale Hearing. In order Sellers shall use all commercially reasonable efforts to prequalify, any person or entity intending to submit an Overbid must provide to Seller (i) sufficient evidence obtain Bankruptcy Court approval of the person or entity's ability to complete the transaction Executory Contract Assumption and (ii) a deposit of $100,000.00Assignment Order. (c) Any initial Overbid must be in a minimum amount of $4,000,000.00 (the "Initial Overbid"). Any Initial Overbid must be for the purchase of the Assets on substantially the same terms as set forth in this Agreement, must be all cash and must be closed within the timeframe required by this Agreement.[INTENTIONALLY OMITTED] (d) If a qualified Initial Overbid is receivedSellers shall promptly make any filings, bidding will continue at take all actions, and use its commercially reasonable efforts to obtain any and all other approvals and orders necessary or appropriate, or as otherwise reasonably requested by Purchaser, for consummation of the Sale Hearing in increments transactions contemplated by this Agreement , subject to its obligations to comply with any order of not less than $100,000.00 in valuethe Bankruptcy Court. (e) All Overbids must be for allIn the event an appeal is taken, or a stay pending appeal is requested, from the Sale Order, or the Executory Contract Assumption and not less than allAssignment Order, Sellers shall immediately notify Purchaser of such appeal or stay request and shall provide to Purchaser within one (1) business day a copy of the Assetsrelated notice of appeal or order of stay. Sellers shall also provide Purchaser with written notice of any motion or application filed in connection with any appeal from either of such orders. (f) If a sale of any of Purchaser shall cooperate in providing such information and evidence as is reasonably necessary to obtain the Assets is consummated with a party other than Buyer, Seller shall, at the Closing of the transaction, (1) return Buyer's deposit orders described in full, and (2) pay to Buyer a break-up fee equal to 2.5% of the total consideration for the purchase and salethis Section 8.04.

Bankruptcy Court Approval. Seller agrees that upon execution of this Agreement by the parties hereto, Seller shall prepare and file a motion with the Bankruptcy Court seeking, approval of this Agreement, including the following terms and conditions relating to the submission of bids ("Overbids") for the Assets to be sold hereunder: (a) Only persons or entities that comply with the following procedures will be deemed qualified bidders ("Qualified Bidders") at the hearing on the motion for approval of the sale of the Acquired Assets contemplated herein (the "The Sale Hearing"). Buyer Approval Order shall be deemed a Qualified Bidder at substantially in the Sale Hearingform of Exhibit B hereto (with such changes thereto as the Seller and the Purchaser shall mutually approve, which approval shall not be unreasonably withheld, conditioned or delayed). (b) All Qualified Bidders must prequalify at least ten (10) days before The Sellers shall add the Sale Hearing. In order Purchaser, and the Purchaser’s counsel, to prequalify, any person or entity intending the Sellers’ so-called “Rule 2002 notice list” and otherwise provide notice to submit an Overbid must provide the Purchaser of all matters that are required to Seller (i) sufficient evidence of be served on the person or entity's ability Sellers’ creditors pursuant to complete the transaction Bankruptcy Code and (ii) a deposit of $100,000.00Rules. (c) Any initial Overbid must be in a minimum amount The Sellers will use reasonable efforts to obtain: (i) the entry of $4,000,000.00 (the "Initial Overbid"). Any Initial Overbid must be Sale Approval Order on the Bankruptcy Court’s docket on June 26, 2009 or otherwise as soon as practicable and no later than June 30, 2009 and one Business Day after the date of the Sale Hearing; and will use their reasonable efforts to timely obtain any other consent required for the purchase consummation of the Assets on substantially the same terms as set forth in this Agreement, must be all cash and must be closed within the timeframe required transactions contemplated by this AgreementAgreement as soon as practicable. (d) If a qualified Initial Overbid is received, bidding will continue at The Sellers shall provide the Sale Hearing in increments of not less than $100,000.00 in value. (e) All Overbids must be for all, and not less than all, of the Assets. (f) If a sale of any of the Assets is consummated Purchaser with a party other than Buyerreasonable opportunity to review and comment upon all motions, Seller shall, at applications and supporting papers prepared by the Closing Sellers (including forms of the transaction, (1orders and notices to interested parties) return Buyer's deposit in full, and (2) pay that relate to Buyer a break-up fee equal to 2.5% of the total consideration for the purchase and salesale of the Transferred Assets contemplated by this Agreement prior to the filing thereof in the Bankruptcy Case. All motions, applications, petitions, schedules and supporting papers prepared by the Sellers and relating to the purchase and sale of the Transferred Assets to the Purchaser as contemplated by this Agreement to be filed on behalf of the Sellers after the date hereof must be reasonably acceptable in form and substance to the Purchaser.

Bankruptcy Court Approval. Seller agrees that upon execution (a) As soon as practicable, but in any event within three (3) Business Days after the Execution Date, Sellers shall file and serve a motion (the "MOTION") pursuant to Bankruptcy Code Sections 105, 363, 365 and 1146, as applicable, in a form reasonably approved by counsel for Buyer: (i) seeking entry of an order, on an expedited basis, substantially in the form attached hereto as EXHIBIT D (the "SALE PROCEDURES ORDER"), among other things (A) approving the payment of (aa) a break-up fee of Three Hundred Thousand Dollars (US $300,000) (the "BREAK-UP FEE") (which amount shall be deemed inclusive of Buyer's expenses), (bb) the Fee under the Due Diligence Agreement and (cc) the amount of any maintenance costs with respect to Assumable Agreements and Transition Rejected Agreements actually paid by Buyer pursuant to Section 2(e)(iv) of this Agreement by (the parties hereto"MAINTENANCE FEE"), Seller shall prepare as administrative priority claims under Bankruptcy Code Sections 503(b) and file a motion with 507(a); (B) approving the Bankruptcy Court seeking, approval procedures for the sale of this Agreementthe Acquired Assets, including the following terms and conditions relating to requirement of an overbid amount of US $3,900,000.00 over the submission Purchase Price for bidders other than Buyer (the "INITIAL OVERBID AMOUNT REQUIREMENT"), an incremental bid amount of bids US $100,000.00 (the "OverbidsINCREMENTAL BID AMOUNT") ), provided that for the limited purpose of determining the value of any incremental bid submitted by Buyer, Sellers shall credit the amount of the Fee, the Break-Up Fee and the Maintenance Fee towards the satisfaction of this requirement; (C) setting dates for the auction sale of the Acquired Assets to be sold hereunder: no later than March 25, 2002 (a) Only persons or entities that comply with the following procedures will be deemed qualified bidders ("Qualified BiddersAUCTION") at ), and the hearing on the motion sale of the Acquired Assets no later than March 27, 2002; (D) providing that for approval any Person other than Buyer to be considered a qualifying bidder ("QUALIFYING BIDDER"), such Person shall provide sufficient evidence to Sellers of its financial ability to consummate a closing of the transactions contemplated hereby and such Person's bid shall (1) at a minimum, meet the Initial Overbid Amount Requirement, (2) provide, as determined by the Debtor in consultation with its advisors and the Official Committee of Unsecured Creditors, as good as or better terms as contained in this Agreement, (3) be accompanied by a good faith deposit of Xxx Xxxxxxx xxx Xx/000 Xxxxxx Xxxxxx Dollars (US $1,000,000.00) in cash or certified or cashier's check payable to Sellers, and (4) be in the form of this Agreement with any proposed changes to be redlined; and (E) providing that if Buyer is not the successful bidder at the Auction and Sellers fail to consummate a closing with a Qualifying Bidder thereafter, Sellers shall give Buyer written notice ten (10) Business Days prior to decommissioning the Business or any material portion of Sellers' network in order to allow Buyer and Sellers to negotiate a purchase price and consummate a closing of the sale of the Acquired Assets contemplated herein and the Business. (ii) seeking entry of an order substantially in the form attached hereto as EXHIBIT E (the "Sale HearingSALE ORDER"). , which, among other things, (A) authorizes Seller to sell, transfer and assign the Acquired Assets to Buyer pursuant to this Agreement and Bankruptcy Code Sections 105, 363, 365 and 1146, as applicable, free and clear of all Liens and Claims, except for Permitted Encumbrances (B) determines that Buyer is a good faith purchaser under Section 363(m) of the Bankruptcy Code and that Buyer has acted in good faith, is a bona fide purchaser for value, the Purchase Price is fair and reasonable; (C) provides that the Assumed Agreements are assigned to Buyer pursuant to 11 U.S.C. Section 365, that Buyer assumes no Liabilities for Claims or Cure Amounts under the Assumed Agreements except as specifically provided herein and that all Assumed Agreements are enforceable against the nondebtor parties; (D) provides that Assumable Agreements designated Assumed Agreements during the Transition Period shall be deemed a Qualified Bidder at assumed and assigned by Sellers to Buyer under 11 U.S.C. ss. 365, that Buyer assumes no Liabilities for Claims or Cure Amounts under the Assumed Agreements except as specifically provided herein, and that all such Assumed Agreements are enforceable against the nondebtor parties; (E) provides that Sellers assume any obligation to cure prior to the entry of the Sale HearingOrder the Assumed Agreements listed on the SCHEDULE OF ASSUMED AGREEMENTS as of the date of the entry of the Sale Order; (F) provides that Section 1146(c) applies to the sale; (G) provides that Buyer is not a successor in interest to Sellers or Sellers' business, and (H) provides that the ten (10) day periods provided for in Federal Rules of Bankruptcy Procedure 6004(g) and 6006(d) are waived. (b) All Qualified Bidders must prequalify at least ten (10) days before Sellers confirm that their negotiation of this Agreement with Buyer is critical to their obtaining the Sale Hearinghighest and best price for their assets, and that without Buyer's commitment of substantial time and expense to the process, Sellers would have to employ a less orderly process for the sale of their assets and therefore risk attracting lower prices. In order to prequalify, any person or entity intending to submit an Overbid must provide to Seller (i) sufficient evidence Sellers further confirm that the payment of the person or entity's ability Fee pursuant to complete the Due Diligence Agreement was critical to their maintaining the Business operational so that any sale of their assets would be feasible. Sellers acknowledge that Buyer would not have invested the time and incurred the expense of negotiating and documenting the transaction if it were not entitled to the Break-Up Fee and (ii) a deposit reimbursement of $100,000.00the Fee pursuant to the Due Diligence Agreement. (c) Any initial Overbid must be in a minimum amount of $4,000,000.00 (Sellers shall seek to obtain hearings on the "Initial Overbid"). Any Initial Overbid must be for Motion promptly upon the purchase expiration of the applicable notice periods, and shall take all reasonably necessary actions in connection therewith. Sellers shall provide due and sufficient notice of the hearing to be held in the Court regarding the Motions to: (i) each person or entity that has filed a notice of appearance, or that has otherwise filed a written request to receive copies of pleadings, in the Bankruptcy Case, (ii) the SEC, (iii) the Internal Revenue Service, (iv) the Office of the United States Trustee, (v) the taxing authorities of each state where Acquired Assets on substantially are located and any appropriate political subdivisions of any thereof, (vi) counsel to the same terms as set forth Official Committee of Unsecured Creditors in this the Bankruptcy Case, (vii) Buyer and its counsel, (viii) the employment agencies of each state where any Employees are employed, (ix) each party (other than Sellers) to each Assumed Agreement, must (x) each person or entity that has asserted a Lien on, or in, any of the Acquired Assets, and (xi) Buyer and any other person or entity that Buyer reasonably requests in writing be all cash and must be closed within the timeframe required by this Agreementserved. (d) If a qualified Initial Overbid an Auction is receivedconducted pursuant to this Section 10, bidding will continue at Buyer shall furnish to Sellers on the Sale Hearing in increments of not less than $100,000.00 in value. (e) All Overbids must be for all, date and not less than all, prior to the commencement of the Assets. Auction, a certificate (fa "MATERIAL ADVERSE EFFECT CERTIFICATE") If a sale of any stating (A) whether, as of the Assets is consummated with a party other than Buyer, Seller shall, at close of business on the Closing day immediately preceding the day of the transactionAuction, (1) return a Material Adverse Effect has, to Buyer's deposit in fullknowledge, occurred, including, if applicable, a description of the events or circumstances that Buyer alleges constitute or give rise to such Material Adverse Effect, and (2B) pay if Buyer alleges a Material Adverse Effect has occurred, whether Buyer nonetheless irrevocably agrees to waive any right arising under this Agreement arising out of or related to such Material Adverse Effect or the events or circumstances constituting or giving rise thereto, including, without limitation, any remedy for breach of warranty or breach of covenant, except to the extent provided in Section 12(a) (a "MATERIAL ADVERSE EFFECT Waiver"). If no Auction is conducted pursuant to Section 10, Buyer a break-up fee equal shall furnish to 2.5% Sellers, on the date of and prior to the commencement of the total consideration sale hearing, a Material Adverse Effect Certificate as of close of business on the day immediately preceding the date of the sale hearing conforming to the requirements set forth in the preceding sentence. In the event any Material Adverse Effect Certificate furnished hereunder contains a statement by Buyer that it believes a Material Adverse Effect to have occurred, and such Material Adverse Effect Certificate does not also contain a Material Adverse Effect Waiver, Sellers may, but shall not be required to, treat such statement as a purported election by Buyer to terminate the Agreement (without prejudice to any remedies Sellers may have hereunder for wrongful termination). In the purchase and saleevent the Material Adverse Effect Certificate states that, to Buyer's knowledge, no Material Adverse Effect has occurred as of the applicable date, Buyer shall thereafter be estopped from asserting any Material Adverse Effect of which it had knowledge as of such date. The Material Adverse Effect Certificate shall in no way hinder Buyer's right to recognize a Material Adverse Effect or Material Adverse Change that occurs after the date of the Material Adverse Effect Certificate.