Bankruptcy Court Approvals. (a) Sellers have filed the Procedures Motion with the Bankruptcy Court and shall use reasonable efforts to obtain entry of an order (the "Bid Procedures Order")
(i) fixing the time, date, and location of the Sale Hearing to approve Sellers' consummation of this Agreement and an auction (the "Auction") at which higher and better offers to purchase the Acquired Assets may be presented to Sellers by third parties ("Competing Transactions"); (ii) approving the form of bidding, auction and sale notice; (iii) providing that upon (y) Sellers' failure to accept this Agreement on substantially the terms set forth herein, or (z) their agreement to or consummation of a Competing Transaction, Buyer shall be entitled to reimbursement of its out-of-pocket expenses, up to a maximum of $250,000, related to due diligence, bid analysis, negotiation, preparation of this Agreement, and other related matters (the "Expense Reimbursement"), subject to court approval after notice and hearing; (iv) providing that if a Competing Transaction is subsequently approved by the Bankruptcy Court and closes as provided by its terms, then Buyer shall be entitled to receive from Sellers a flat fee payment of $50,000 in immediately available funds (the "Break-Up Fee"; the Expense Reimbursement and Break-Up Fee, together, the "Bid Fees"), which payment of the Break-Up Fee shall be made to Buyer concurrently with the consummation of such third party sale; and (v) providing that no third party bidder shall be entitled to purchase the Acquired Assets unless such third party bidder offers to purchase assets comparable to the Acquired Assets for no less than the sum of the Purchase Price plus the Bid Fees and $100,000. Should overbidding take place, Buyer shall have the right, but not the obligation, to participate in the overbidding and to be approved as the overbidder at the Sale Hearing based upon Buyer's submission of the highest and best offer to purchase the Acquired Assets and Sellers' acceptance of such overbid.
(b) Sellers have filed the Sale Motion with the Bankruptcy Court and shall use reasonable efforts to obtain entry of an order (the "Sale Order") in form and content reasonably acceptable to Buyer that, among other things: (i) makes a finding that those matters which are the subject of this Agreement, are "core" matters over which the Bankruptcy Court has jurisdiction pursuant to 28 U.S.C. Sections 1334 and 157; (ii) makes a finding that due and proper notice of the transactions cont...
Bankruptcy Court Approvals. (a) The Buyer shall assist and cooperate with the Debtors in seeking approval of the Disclosure Statement and confirmation of the Plan. The Buyer shall not, without the prior written consent of the Company (which consent shall not be unreasonably withheld) file any pleading or take other action in the Bankruptcy Court with respect to this Agreement, the Plan or the consummation of the transactions contemplated hereby or thereby that is inconsistent with the full performance and implementation of the provisions of this Agreement; provided, however, that nothing contained in the foregoing shall be construed to limit in any way the Buyer's rights under this Agreement, including the Buyer's rights under Article 11 hereof, or to limit the Buyer's or its Affiliates' rights to advocate for the approval of this Agreement and against any alternative transaction or plan of reorganization that does not effectuate the transactions contemplated by this Agreement.
(b) All information concerning the Buyer provided in writing to the Company by the Buyer expressly for inclusion in the Disclosure Statement is or shall be accurate in all material respects. The Buyer shall promptly notify the Company and the other Debtors if at any time before the Effective Date it becomes aware that the Disclosure Statement contains any untrue statement of a material fact with respect to the Buyer or omits to state a material fact required to be stated therein or necessary to make the statements contained therein with respect to the Buyer, in light of the circumstances under which they were made, not misleading.
(c) If the Confirmation Order or any other Orders of the Bankruptcy Court relating to (i) this Agreement, (ii) the Disclosure Statement, (iii) the solicitation of acceptance of the Plan, or (iv) confirmation of the Plan, shall be appealed by any party (or a petition for certiorari or motion for rehearing or reargument shall be filed with respect thereto), the Buyer agrees to take such steps, if any, as may be reasonable and appropriate to join in and prosecute such appeal, petition or motion or defend against such appeal, petition or motion and to use reasonable efforts to obtain an expedited resolution of any such appeal, petition or motion, with the objective of effecting the transactions contemplated by this Agreement; provided, that such reasonable efforts obligation shall not obligate the Company to expend monies or to pay a disputed claim against the Company.
Bankruptcy Court Approvals. On the Petition Date, Seller shall file a motion (the “Sale Motion”) seeking entry of an order of the Bankruptcy Court approving the sale of the Assets to Purchaser pursuant to the terms of this Agreement (the “Sale Order”), which Sale Order Seller shall use commercially reasonable efforts to obtain. The Sale Order shall be substantially in the form and content attached as Exhibit A hereto. Seller shall file a motion (the “Procedures Motion”) seeking entry of an order of the Bankruptcy Court (the “Bid Procedures Order”) which establishes and approves, among other things, the competitive bidding process and bidding protections (including, without limitation, Purchaser’s right to receive the BDO Fee Reimbursement, the Expense Reimbursement Amount and the Break-Up Fee), as well as the noticing procedures with respect to the assumption and assignment of the Assumed Contract and the Assumed Leases. Seller shall use commercially reasonable efforts to obtain the Bid Procedures Order. The Bid Procedures Order shall be substantially in the form and content attached as Exhibit B hereto. Seller shall conduct the sale process relating to the Assets in accordance with the rights and authority granted to Seller in the Bid Procedures Order. Purchaser shall cooperate in all reasonable respects in Seller’s efforts to obtain the Bid Procedures Order and Sale Order and shall provide information demonstrating adequate assurance of future performance under Section 365 of the Bankruptcy Code with respect to each Assumed Contract.
Bankruptcy Court Approvals. Sellers shall as soon as practicable use their commercially reasonable efforts to obtain an order of the Bankruptcy Court approving the Bidding Procedures, including payment of the Reimbursed Expenses to Buyer as set forth therein, and approving Section 8.5 hereof. Sellers shall use their commercially reasonable efforts to obtain Bankruptcy Court approval, in the form of the Bankruptcy Court Order, of the transactions described herein.
Bankruptcy Court Approvals. Sellers shall as soon as practicable use their best efforts to obtain entry of the Sale Procedures Order. Sellers shall use their best efforts to obtain Bankruptcy Court approval, in the form of the Sale Order, of the Transactions.
Bankruptcy Court Approvals. The Bankruptcy Court shall have approved (i) the retention by the Loan Parties of the Investment Advisor, Alix, the CRO, CFO and the Specified Liquidation Agents and (ii) the Consignment Agreement.
Bankruptcy Court Approvals. The Seller has sought and obtained an order setting a hearing to approve the sale of the Assets and the assumption of the Assumed Liabilities (the “Sale Hearing”) for February 12, 2008 at 9 a.m. At the Sale Hearing the Debtor shall seek an order (the “Sale Order”) authorizing (A) Seller to sell the Assets to Buyer pursuant to this Agreement and Sections 363 and 365 of the Bankruptcy Code, free and clear of all interests in or to the Assets within the meaning of the Bankruptcy Code Section 363(f), and otherwise free and clear of all other liens, encumbrances, claims and liabilities, except for the Assumed Liabilities, and (B) Buyer to assume the Assumed Liabilities and Seller to be relieved of liability therefrom. The Seller shall use all reasonable efforts to cause the Bankruptcy Court to enter the Sale Order as promptly as practicable, but in no event later than one (1) Business Day after the commencement of the Sale Hearing.
(i) The Sale Order shall provide, among other things, that:
(A) The Sale Motion is granted and the sale of the Assets (including the assumption and assignment of the Assigned Agreements), in accordance with the terms and conditions of this Agreement, is approved. The sale of the Assets is necessary, essential and appropriate under the circumstances of the Seller’s bankruptcy estate, which (together with the Seller’s creditors) would suffer immediate and irreparable harm if the Seller were not permitted to sell the Assets (including assumption and assignment of the Assigned Agreements) at this time. The transactions contemplated by this Agreement are permissible under Sections 363 and 365 of the Bankruptcy Code, and do not amount to a sub xxxx plan of reorganization. The Seller has engaged in fair and reasonable marketing, advertising and other sale efforts and procedures in connection with the transactions, both before and after the Petition Date, and has complied with the Bid Procedures Order.
(B) The Sellers have obtained a fair and reasonable price for the Assets.
(C) Notice of the Sale Motion was appropriate and adequate in the circumstances and complied in all respects with the requirements of the Bankruptcy Code, the Federal Rules of Bankruptcy Procedure, the Local Bankruptcy Rules for the Bankruptcy Court and the Bid Procedures Order, and is approved. No further notice of, or hearing on the Sale Motion is required. Adequate notice of and an opportunity to be heard with respect to the Sale Motion has been given to all parties i...
Bankruptcy Court Approvals. The Sellers have received approval from the Bankruptcy Court to sell the Purchased Assets to the Buyers pursuant to the Sale Order attached hereto as Exhibit E, which, among other things, (i) authorizes Sellers to sell, transfer and assign the Purchased Assets to Buyer, pursuant to this Agreement and applicable sections of Bankruptcy Code, free and clear of liens, claims, interests, encumbrances and security interests of any nature or kind, and (ii) determines that Buyer is a good faith purchaser and that the Buyer has acted in good faith, is a bona fide purchaser for value, the Purchase Price is fair and reasonable, and the sale of the Purchased Assets is free and clear of all liens, claims, interests, and encumbrances.
Bankruptcy Court Approvals. 9.1 Promptly following the Effective Date (and in no event later than five (5) days thereafter), Sellers shall file the Sale Motion and shall use commercially reasonable efforts to obtain the Sale Order. Any material changes to the form of the Sale Order must be approved by Purchaser and Sellers in their respective sole discretion. Purchaser shall provide adequate assurance of future performance (satisfactory to the Bankruptcy Court) to the counterparties to Sellers’ Purchased Contracts.
9.2 Sellers shall consult in good faith with Purchaser and its representatives concerning the Sale Order, any other Orders of the Bankruptcy Court relating to the Contemplated Transactions, and the bankruptcy proceedings in connection therewith. Sellers will provide Purchaser with a reasonable opportunity to review and comment upon all motions, applications and supporting papers relating to the transactions contemplated by this Agreement prepared by Sellers prior to the filing thereof in the Chapter 11 Cases. All motions, applications and supporting papers prepared by Sellers and relating to the transactions contemplated by this Agreement (including forms of orders and notices to interested parties) must be acceptable in form and substance to Purchaser, in its reasonable discretion. Sellers shall give appropriate notice, and provide appropriate opportunity for hearing, to all Persons entitled thereto, of all motions, orders, hearings and other proceedings relating to this Agreement and the transactions contemplated hereby and thereby and such additional notice as ordered by the Bankruptcy Court. Sellers shall use reasonable best efforts to secure entry of the Sale Order. Sellers shall use reasonable best efforts to demonstrate to the Bankruptcy Court that they have taken reasonable steps to obtain the highest, best or otherwise financially superior offer possible for the Purchased Assets under the circumstances. Sellers shall use their commercially reasonable efforts to secure expedited resolution of any appeal, petition or motion for reconsideration, modification amendment, vacation, stay rehearing or re-argument related to the Sale Order. Sellers shall use commercially reasonable efforts to comply (or obtain an Order from the Bankruptcy Court waiving compliance) with all requirements under the applicable provisions of the Bankruptcy Code, the Bankruptcy Rules and the Local Bankruptcy Rules in connection with obtaining approval of the Sale Order. Sellers shall consult in ...
Bankruptcy Court Approvals. The provisions of this Section 4.07 shall terminate in the event that Purchaser is not the Successful Bidder pursuant to the Bidding Procedures:
(a) Within seven (7) Business Days of the issuance by the U.S. Bankruptcy Court of an Order approving the Bidding Procedures Motion, each Seller (other than the Non-Debtor Sellers) shall file the Plan and the Disclosure Statement with the U.S. Bankruptcy Court to effect, among other things, the transactions contemplated by this Agreement upon the terms and conditions set forth herein, and thereafter Sellers (other than the Non-Debtor Sellers) shall use commercially reasonable efforts to obtain the entry of the Confirmation Order as soon as practicable. Sellers (other than the Non-Debtor Sellers) shall consult with and seek the advice of Purchaser regarding any description of Purchaser in the Plan or the Disclosure Statement. Except as Sellers may in their good faith determine is otherwise required as a result of fiduciary duties imposed by Law, Sellers shall not file any pleading or take other action in the U.S. Bankruptcy Court with respect to this Agreement, the Plan, or the consummation of the transactions contemplated hereby or thereby in a manner that has or is reasonably likely to have a Material Adverse Effect on the value of the Business, without first obtaining the written consent of Purchaser, which consent shall not be unreasonably withheld; provided, that nothing contained in the foregoing shall be construed to limit in any way the Sellers' rights under this Agreement, including, without limitation, the rights of Sellers under Article VIII hereof; provided further, that Sellers shall be entitled to file pleadings with or take other actions in the U.S. Bankruptcy Court as a result of their acceptance of a proposal for an Alternative Transaction as contemplated by Section 8.01. Sellers shall promptly notify Purchaser if at any time before the Effective Date they become aware that the Disclosure Statement contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading. In such event, Sellers (other than the Non-Debtor Sellers) shall make the appropriate filings with the U.S. Bankruptcy Court regarding such misstatement or omission and take such other actions to address such misstatement or omission as required by the U.S. Bankruptc...
