Common use of Bankruptcy Court Approvals Clause in Contracts

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.

Bankruptcy Court Approvals. (a) Sellers have filed Promptly following the Procedures Motion with Effective Date (and in no event later than five (5) business days thereafter), Seller will make a motion in the Bankruptcy Court and shall use reasonable efforts to obtain form of Exhibit 7 hereto (the “Sale Motion”) seeking entry of an order from the Bankruptcy Court in the form of Exhibit 8 hereto (the "Bid “Procedures Order"”) and a subsequent order approving sale of the Property in the form of Exhibit 9 hereto (i) fixing the time, date, and location “Sale Order”). Following the filing of the Sale Hearing Motion, Seller shall use reasonable commercial efforts to approve Sellers' consummation of promptly obtain the Procedures Order and the Sale Order. Both Purchaser’s and Seller’s obligations to consummate the transactions contemplated in this Agreement which the Purchaser and Seller may hereafter enter into shall be conditioned upon the Bankruptcy Court’s entry of the Procedures Order and the Sale Order substantially in the forms attached hereto; provided that the addition of provisions to the Procedures Order or the Sale Order that are not adverse to Purchaser in any material manner shall not relieve Purchaser of its obligation to proceed hereunder. If, for any reason whatsoever, the Bankruptcy Court does not issue the Procedures Order, then either party may terminate this Agreement upon written notice to the other party, whereupon this Agreement shall immediately terminate, Escrow Agent shall return the Deposit to Purchaser and Seller and Purchaser shall be relieved of any further liability or obligation hereunder, except as expressly otherwise hereinafter provided. Notwithstanding the foregoing, in the event that the Bankruptcy Court enters an auction order approving a third party (an “Upset Purchaser”) as the purchaser of the Property pursuant to an agreement between Upset Purchaser and Seller (the "Auction"“Upset Agreement”) at which higher and better offers to purchase the Acquired Assets may be presented to Sellers by third parties ("Competing Transactions"); (ii) approving hearing on the form of biddingsale, auction and sale notice; (iii) providing that upon (y) Sellers' failure to accept this Agreement shall not be terminated, but rather this Agreement shall become a “back-up bid” (with the Deposit being returned to the Purchaser upon Bankruptcy Court approval of an Upset Agreement) which shall remain open for acceptance by Seller for a period of sixty (60) days following such order, but subject and subordinate in all respects to the rights of the Upset Purchaser under the Upset Agreement. Purchaser may terminate this Agreement upon written notice to Seller if the Procedures Order and the Sale Order are for any reason whatsoever not entered by the Bankruptcy Court on substantially or before November 14, 2008, whereupon this Agreement shall immediately terminate, Escrow Agent shall return the terms set forth hereinDeposit to Purchaser and Seller and Purchaser shall be relieved of any further liability or obligation hereunder, or (z) their agreement to or consummation of a Competing Transaction, Buyer except as expressly otherwise hereinafter provided. Purchaser shall be entitled to reimbursement of its outa break-of-pocket expenses, up to a maximum fee in the amount of $250,000, related to due diligence, bid analysis, negotiation, preparation of this Agreement, and other related matters 500,000.00 (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"; ”) if the Expense Reimbursement and Break-Up Fee, together, the "Bid Fees"), which payment of Property is sold to an Upset Purchaser. The obligations to pay the Break-Up Fee shall be made to Buyer concurrently with the consummation survive termination 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 overbidthis Agreement.

Bankruptcy Court Approvals. (a) Sellers have filed the Procedures Motion with Bid Protections, Break-Up Fee Order and Sale Motion. Seller has obtained an order of the Bankruptcy Court and shall use reasonable efforts to obtain entry of an order (the "Bid Procedures Break-Up Fee Order") (i) fixing which authorizes the timepayment by Seller to Penn of an amount equal to $250,000 for the actual, date, necessary 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 reasonable out-of-pocket expenses, up costs and legal fees incurred by Penn prior to the date of the Auction (without prejudice to Penn's right to seek additional amounts under 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 motion filed with the Bankruptcy Court Court) in connection with (i) Penn's investigation of Seller, the Company and closes as provided by its termsthe Riverboat Casino Assets, then Buyer shall be entitled (ii) negotiating the Penn Purchase Agreement and (iii) seeking to receive from Sellers a flat fee payment of $50,000 in immediately available funds protect or enforce Penn's rights under the Penn Purchase Agreement (the "Break-Up Fee"; ) in the Expense Reimbursement and Break-Up Feeevent the Penn Purchase Agreement shall be terminated pursuant to Section 16 of the Penn Purchase Agreement due to (A) Bankruptcy Court approval of a sale of the Closing Shares or Riverboat Casino Assets, togetheras applicable, to any Person other than Penn or an affiliate of Penn (a "Competing Sale") or (B) Bankruptcy Court approval of a competing plan of reorganization or liquidating plan relating to the Closing Shares or the Riverboat Casino Assets not incorporating the Penn Purchase Agreement (a "Bid FeesCompeting Plan"), which payment of the Break-Up Fee shall be made to Buyer concurrently with the consummation payable only upon a successful closing of such third party saleCompeting Sale or the occurrence of the effective date (the "Competing Plan Effective Date") of such Competing Plan, as applicable; provided, however, that if Seller shall have prepared and (v) providing that no third party bidder prosecuted the Company Plan of Reorganization in good faith, then Penn shall not be entitled to purchase any Break-Up Fee in the Acquired Assets unless such third party bidder offers to purchase assets comparable to event the Acquired Assets for no less than Company Plan of Reorganization is not confirmed. Buyer acknowledges that it shall not, in any event, including without limitation (i) the sum non-acceptance by Seller or Company of this Agreement, (ii) the approval 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 Bankruptcy Court of a sale of the highest Closing Shares or Riverboat Casino Assets to Penn or any other third Person other than Buyer, or (iii) the approval of the Bankruptcy Court of a Competing Plan, be entitled to any type of break-up fee in connection with this Agreement or the contemplated purchase and best offer to purchase sale of the Acquired Assets and Sellers' acceptance of such overbidClosing Shares.

Bankruptcy Court Approvals. No later than two Business Days after the execution of this Agreement, the Sellers shall (ai) Sellers have filed the Procedures Motion with make all filings in the Bankruptcy Court necessary to initiate the Chapter 11 Cases in the manner contemplated by Sections 3.28 and shall use reasonable efforts 3.29, and (ii) file and serve notice thereof on all interested parties as required by the Bankruptcy Code, a motion, in form and substance reasonably satisfactory to obtain the Purchaser (together with supporting papers and exhibits, the “Sale Motion”) seeking (x) entry of an order substantially in the form of Appendix B hereto or otherwise in form and substance reasonably satisfactory to the Purchaser (the "Bid “Bidding Procedures Order"“) on the Bankruptcy Court’s docket and setting a preliminary hearing with respect to the Bidding Procedures contemplated by this Agreement on shortened notice and in no event later than the 20th Business Day from the date hereof to approve the Bidding Procedures (i) fixing the time, date“Preliminary Hearing”), and location (y) entry of an order substantially in the form of Appendix C hereto or otherwise in form and substance reasonably satisfactory to the Purchaser (the “Sale Approval Order”), at a final hearing (the “Final Sale Hearing”) upon no less than 45 days’ notice (or such shorter time period as the Bankruptcy Court may approve) after the Preliminary Hearing, authorizing each of the Sale Hearing Sellers to approve Sellers' consummation perform all of its respective obligations pursuant to this Agreement and an auction the transactions contemplated hereby, including, without limitation (a) the "Auction"sale, conveyance, assignment, transfer and delivery by the Sellers to the Purchaser or a Qualified Overbidder of the Purchased Assets, free and clear of all Liens, Actions or Claims against and Indebtedness of the Sellers (other than such Actions, Claims and Indebtedness related to the Assumed Liabilities) at which higher as set forth in the Sale Approval Order, other than the Permitted Liens, and better offers (b) the assumption and assignment of the Designated Contracts to purchase the Acquired Assets may be presented assumed and assigned pursuant 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 hereinhereof without adequate assurance of future performance liability pursuant to Section 365(f)(2) of the Bankruptcy Code, or (z) their agreement except Purchaser’s obligation 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 Agreementperform the Designated Contracts following the Closing, and other related matters (c) which Sale Approval Order shall contain, inter alia, a finding that the "Expense Reimbursement"), subject to court approval after notice and hearing; (ivPurchaser has acted in “good faith” within the meaning of section 363(m) providing that if a Competing Transaction is subsequently approved by of the Bankruptcy Court Code. The Sale Approval Order shall also provide that it will become effective immediately and closes that any stay of such order as provided by its termsrules 6004(g) and 6006(d) under the Bankruptcy Code is expressly waived and terminated. Sellers shall not modify, then Buyer change, alter, amend or supplement the proposed Sale Approval Order without the Purchaser’s prior written consent. The Sellers failure to timely obtain the Bidding Procedures Order shall be entitled entitle Purchaser to receive from terminate this Agreement without further liability of either party as contemplated in Section 10.01(a), and Sellers a flat fee payment of $50,000 in immediately available funds (will have no obligation to pay the "Expense Reimbursement and the Break-Up Fee"; . The Sellers failure to timely obtain the Sale Approval Order shall entitle Purchaser to both payment of the Expense Reimbursement and Break-Up Fee, together, Fee in the "Bid Fees"manner contemplated by Sections 6.04 and 6.05 of this Agreement and to terminate this Agreement as contemplated in Section 10.01(a), which payment of . In the event that Purchaser is paid the Expense Reimbursement and Break-Up up Fee shall be made to Buyer concurrently with solely under the consummation of such third party sale; circumstances 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 manner contemplated by Sections 6.04 and to be approved as 6.05 of this Agreement, such funds shall constitute Purchaser’s sole and exclusive remedy for any breach of this Agreement by Sellers or otherwise under this Agreement, other than any fraud or knowing or willful breach by or on the overbidder at part of Sellers or collusion by Sellers with creditors or other constituent parties-in-interest in the Sale Hearing based upon Buyer's submission of the highest and best offer to purchase the Acquired Assets and Sellers' acceptance of such overbidChapter 11 Cases.

Bankruptcy Court Approvals. (a) Sellers have filed Bid Protections, Procedures Order and Sale Motion. Promptly following the Procedures Motion with execution of this Agreement (and in no event later than five (5) business days thereafter), Seller will seek an order of the Bankruptcy Court in form reasonably satisfactory to Buyer and shall use reasonable efforts to obtain entry of an order consistent with this Agreement (the "Bid Procedures Order") (i) fixing which authorizes the timepayment by Seller to Buyer of an amount equal to $750,000, 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 plus reimbursement of its up to $250,000 for the actual, necessary and reasonable out-of-pocket expensescosts and legal fees incurred by Buyer prior to the date of the Auction in connection with (i) Buyer's investigation of Seller, up the Company and the Riverboat Casino Assets, (ii) negotiating this Agreement and (iii) seeking to a maximum of $250,000, related to due diligence, bid analysis, negotiation, preparation of protect or enforce Buyer's rights under 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 Agreement (the "Break-Up Fee"; ) in the Expense Reimbursement and Break-Up Feeevent this Agreement shall have been terminated pursuant to Section 16 due to (A) Bankruptcy Court approval of a sale of the Closing Shares or Riverboat Casino Assets, togetheras applicable, to any Person other than Buyer or an affiliate of Buyer (a "Competing Sale") or (B) Bankruptcy Court approval of a competing plan of reorganization or liquidating plan relating to the Closing Shares or the Riverboat Casino Assets not incorporating this Agreement (a "Bid FeesCompeting Plan"), which payment of the Break-Up Fee shall be made to Buyer concurrently with the consummation payable only upon a successful closing of such third party saleCompeting Sale or the occurrence of the effective date (the "Competing Plan Effective Date") of such Competing Plan, as applicable; provided, however, that if Seller shall have prepared and (v) providing that no third party bidder prosecuted the Company Plan of Reorganization in good faith, then Buyer shall not be entitled to purchase any Break-Up Fee in the Acquired Assets unless such third party bidder offers event the Company Plan of Reorganization is not confirmed. The Procedures Order shall further approve the payment by Seller to purchase assets comparable to the Acquired Assets for no less than the sum Buyer of the Purchase Price plus the Bid Fees and $100,000Expense Reimbursement pursuant to Section 9(d) below. Should overbidding take place, Buyer Seller shall have the right, but not the obligation, use its commercially reasonable efforts to participate in the overbidding and to be approved as the overbidder at the Sale Hearing based upon Buyer's submission obtain entry of the highest and best offer to purchase Procedures Order within thirty (30) days after the Acquired Assets and Sellers' acceptance execution of such overbidthis Agreement.

Bankruptcy Court Approvals. (a) Sellers have filed The sale of the Procedures Motion with Acquired Assets, the Bankruptcy Court SWL Shares, the Constitution Life Shares and shall use reasonable efforts to obtain entry of an order the Surplus Debenture (the "Bid Procedures OrderEstate Property") (i) fixing the timeto Buyer, date, PennCorp and location of the Sale Hearing SWFSC pursuant 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 other transactions contemplated 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 and by the terms set forth herein, or (z) their agreement to or consummation of a Competing Transaction, Buyer Related Agreements 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 have been approved by the Bankruptcy Court pursuant to section 363 of the Bankruptcy Code and closes as provided by its termsorders approving such sale in form and substance acceptable to Buyer, then Buyer shall be entitled to receive from Sellers a flat fee payment of $50,000 in immediately available funds PennCorp and Seller containing the provisions set forth below (the "Break-Up FeeApproval Order"; the Expense Reimbursement and Break-Up Fee, together) shall have been entered for a period of ten days, the "Bid Fees")effect and operation of which shall not have been restrained, which payment enjoined, suspended or otherwise stayed (it being understood that certain of such provisions may be contained in the findings of fact or conclusions of law to be made by the Bankruptcy Court as part of the Break-Up Fee Approval Order). The Approval Order shall provide, among other things, that: (i) the transfers of the Estate Property by Seller and the Selling Subsidiaries to Buyer, PennCorp and SWFSC (A) are or will be legal, valid and effective transfers of the Estate Property; (B) vest or will vest Buyer, PennCorp and SWFSC with all right, title and interest of Seller, the Selling Subsidiaries and any Retained Company to the Estate Property free and clear of all Liens and Claims pursuant to Section 363(f) of the Bankruptcy Code (other than Liens contemplated by the Assumed Liabilities, Liens otherwise created by Buyer, PennCorp or SWFSC and Texas Property Tax Liens on the Acquired Assets in respect of Taxes imposed in 1995); and (C) constitute transfers for reasonably equivalent value and fair consideration under the Bankruptcy Code and the laws of the State of Texas; (ii) the creation and funding of the Indemnity Escrow Account in accordance with Section 8.2 of this Agreement are approved; (iii) the terms and provisions of the Escrow Agreement pursuant to which payments may be made to Buyer concurrently by the Escrow Agent from funds held in the Indemnity Escrow Account in accordance with the consummation provisions of such third party sale; Section 8.2 of this Agreement are approved and (v) providing that no third party bidder shall payments pursuant thereto may 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 made without any further order 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 Bankruptcy Court; (iv) all amounts to be approved as paid to (1) Buyer and PennCorp pursuant to this Agreement, including without limitation the overbidder at the Sale Hearing based upon Buyer's submission obligations of the highest Seller and best offer to purchase the Acquired Assets and Sellers' acceptance of such overbid.Selling

Bankruptcy Court Approvals. (a) Sellers have filed the Procedures Motion with Bid Protections, Break-Up Fee Order and Sale Motion. Seller has obtained an order of the Bankruptcy Court and shall use reasonable efforts to obtain entry of an order (the "Bid Procedures Break-Up Fee Order") (i) fixing which authorizes the timepayment by Seller to Buyer of an amount equal to $250,000 for the actual, date, necessary 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 reasonable out-of-pocket expenses, up costs and legal fees incurred by Buyer prior to the date of the Auction (without prejudice to Buyer's right to seek additional amounts under 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 motion filed with the Bankruptcy Court Court) in connection with (i) Buyer's investigation of Seller, the Company and closes as provided by its termsthe Riverboat Casino Assets, then Buyer shall be entitled (ii) negotiating this Agreement and (iii) seeking to receive from Sellers a flat fee payment of $50,000 in immediately available funds protect or enforce Buyer's rights under this Agreement (the "Break-Up Fee"; ) in the Expense Reimbursement and Break-Up Feeevent this Agreement shall have been terminated pursuant to Section 16 due to (A) Bankruptcy Court approval of a sale of the Closing Shares or Riverboat Casino Assets, togetheras applicable, to any Person other than Buyer or an affiliate of Buyer (a "Competing Sale") or (B) Bankruptcy Court approval of a competing plan of reorganization or liquidating plan relating to the Closing Shares or the Riverboat Casino Assets not incorporating this Agreement (a "Bid FeesCompeting Plan"), which payment of the Break-Up Fee shall be made to Buyer concurrently with the consummation payable only upon a successful closing of such third party saleCompeting Sale or the occurrence of the effective date (the "Competing Plan Effective Date") of such Competing Plan, as applicable; provided, however, that if Seller shall have prepared and (v) providing that no third party bidder prosecuted the Company Plan of Reorganization in good faith, then Buyer shall not 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 any Break-Up Fee in the overbidding and to be approved as event the overbidder at the Sale Hearing based upon Buyer's submission Company Plan of the highest and best offer to purchase the Acquired Assets and Sellers' acceptance of such overbidReorganization is not confirmed.