Bankruptcy Court Filings and Approval. (a) Sellers shall use their reasonable best efforts to comply with the deadlines set forth in the Bidding Procedures or the Bidding Procedures Order, as applicable. (b) The Parties shall consult with each other regarding pleadings that any of them intends to file with the Bankruptcy Court in connection with, or which might reasonably affect the Bankruptcy Court’s approval of the Sale Order, including, with respect to Sellers, sharing in advance any drafts thereof for Buyer’s review and comment. Each Seller shall promptly provide Buyer and its counsel with copies of all notices, filings and orders of the Bankruptcy Court that such Seller has in its possession (or receives) pertaining to the Sale Motion, or any other order related to any of the transaction contemplated by this Agreement, but only to the extent such papers are not publicly available on the docket of the Bankruptcy Court or otherwise made available to Buyer and its counsel. No Seller shall seek any modification to the Bidding Procedures Order and the Sale Order by the Bankruptcy Court or any other Governmental Authority of competent jurisdiction to which a decision relating to the Bankruptcy Cases has been appealed, in each case, without the prior written consent of Buyer (not to be unreasonably withheld). (c) Sellers shall use their commercially reasonable efforts to obtain entry of the Sale Order and such other relief from the Bankruptcy Court as may be necessary or appropriate in connection with this Agreement and the consummation of the transactions contemplated by this Agreement. Buyer agrees that it will promptly take such actions as are reasonably requested by Sellers to assist in obtaining entry of the Sale Order and, consistent with Section 8.3 below, a finding by the Bankruptcy Court of adequate assurance of future performance by Buyer. (d) Sellers and Buyer acknowledge that this Agreement and the sale of the Acquired Assets and the assumption and assignment of the Assigned Agreements are subject to Bankruptcy Court approval. Sellers and Buyer acknowledge that (i) to obtain such approval, Sellers must demonstrate that they have taken reasonable steps to obtain the highest or otherwise best offer possible for the Acquired Assets and otherwise have complied with the Bankruptcy Code requirements for approval of the sale of the Acquired Assets to Buyer and (ii) Buyer must provide adequate assurance of future performance under the Assigned Agreements to be assigned by Sellers, and Buyer hereby agrees to provide all appropriate assurances thereof necessary in order to obtain the foregoing approvals. (e) Sellers shall give all notices required to be given by applicable Law, to all Persons entitled thereto, of all motions (including the motions seeking entry of the Sale Order), 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 or as Buyer may reasonably request. Sellers shall promptly provide Buyer with copies of all communications from the Bankruptcy Court relating to the motions seeking entry of the Sale Order. (f) In the event an appeal is taken or a stay pending appeal is requested from the Sale Order, Sellers shall immediately notify Buyer of such appeal or stay request and shall provide to Buyer promptly 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 connection with any appeal from or stay request in respect of such order. Sellers and Buyer shall use their respective commercially reasonable efforts to defend such appeal or stay request and obtain an expedited resolution of such appeal. (g) After entry of the Sale Order, Sellers shall not take any action which is intended to, or fail to take any action the intent of which failure to act is to, result in the reversal, voiding, modification or staying of the Sale Order.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Camping World Holdings, Inc.)
Bankruptcy Court Filings and Approval. (a) Sellers shall use their reasonable best efforts to comply with the deadlines set forth in the Bidding Procedures or the Bidding Procedures Order, as applicable.
(b) The Parties shall consult with each other regarding pleadings that any of them intends to file with the Bankruptcy Court in connection with, or which might reasonably affect the Bankruptcy Court’s approval of the Sale Order, including, with respect to Sellers, sharing in advance any drafts thereof for Buyer’s review and comment. Each Seller shall promptly provide Buyer and its counsel with copies of all notices, filings and orders of the Bankruptcy Court that such Seller has in its possession (or receives) pertaining to the Sale Motion, or any other order related to any of the transaction contemplated by this Agreement, but only to the extent such papers are not publicly available on the docket of the Bankruptcy Court or otherwise made available to Buyer and its counsel. No Seller shall seek any modification to the Bidding Procedures Order and the Sale Order by the Bankruptcy Court or any other Governmental Authority of competent jurisdiction to which a decision relating to the Bankruptcy Cases has been appealed, in each case, without the prior written consent of Buyer (not to be unreasonably withheld).
(c) Sellers shall use their commercially reasonable efforts to obtain entry of the Sale Order and such other relief from the Bankruptcy Court as may be necessary or appropriate in connection with this Agreement and the consummation of the transactions contemplated by this Agreement. Buyer agrees that it will promptly take such actions as are reasonably requested by Sellers to assist in obtaining entry of the Sale Order and, consistent with Section 8.3 below2.6, a finding by the Bankruptcy Court of adequate assurance of future performance by Buyer.
(d) . Sellers and Buyer acknowledge that this Agreement and the sale of the Acquired Assets and the assumption and assignment of the Assigned Agreements are subject to Bankruptcy Court approval. Sellers and Buyer acknowledge that (i) to obtain such approval, Sellers must demonstrate that they have taken reasonable steps to obtain the highest or otherwise best offer possible for the Acquired Assets and otherwise have complied with the Bankruptcy Code requirements for approval of the sale of the Acquired Assets to Buyer and (ii) Buyer must provide adequate assurance of future performance under the Assigned Agreements to be assigned by Sellers, and Buyer hereby agrees to provide all appropriate assurances thereof necessary in order to obtain the foregoing approvals.
(e) . Sellers shall give all notices required to be given by applicable Law, to all Persons entitled thereto, of all motions (including the motions seeking entry of the Sale Order), 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 or as Buyer may reasonably request. Sellers shall promptly provide Buyer with copies of all communications from the Bankruptcy Court relating to the motions seeking entry of the Sale Order.
(f) . In the event an appeal is taken or a stay pending appeal is requested requested, from the Sale Order, Sellers shall immediately notify Buyer of such appeal or stay request and shall provide to Buyer promptly 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 connection with any appeal from or stay request in respect of such order. Sellers and Buyer shall use their respective commercially reasonable efforts to defend such appeal or stay request and obtain an expedited resolution of such appeal.
(g) . After entry of the Sale Order, Sellers shall not take any action which is intended to, or fail to take any action the intent of which failure to act is to, result in the reversal, voiding, modification or staying of the Sale Order.. Bidding Procedures . The bidding procedures to be employed with respect to this Agreement shall be those reflected in the Bidding Procedures Order. Buyer agrees and acknowledges that Sellers and their Representatives and Affiliates are and may continue soliciting inquiries, proposals or offers for the Acquired Assets in connection with any alternative transaction pursuant to the terms of the Bidding Procedures Order. Notification of Certain Matters . On or prior to the date that is seven days following the date hereof, Sellers shall provide to Buyer their good faith estimate of the Cure Costs associated with each Assigned Agreement (assuming for this purpose that the Closing Date is July 18, 2016). ADDITIONAL AGREEMENTS Taxes . Any sales, use, property transfer or gains, documentary, stamp, registration, recording or similar Tax (including, for certainty, goods and services tax, harmonized sales tax and land transfer tax) payable in connection with the sale or transfer of the Acquired Assets (“Transfer Taxes”) shall be borne by Buyer and, to the extent any Seller is required by applicable Law to pay Transfer Taxes, such Transfer Taxes shall be paid by Buyer to the appropriate Seller at Closing. Sellers and Buyer shall use reasonable efforts and cooperate in good faith to exempt the sale and transfer of the Acquired Assets from any such Transfer Taxes. Sellers shall prepare and file all necessary Tax Returns or other documents with respect to all such Transfer Taxes; provided, however, that in the event any such Tax Return requires execution by Buyer, Sellers shall prepare and deliver to Buyer a copy of such Tax Return at least three (3) Business Days before the due date thereof, and Buyer shall promptly execute such Tax Return and deliver it to Sellers, which shall cause it to be filed. Buyer and Sellers agree to furnish or cause to be furnished to each other, upon request, as promptly as practicable, such information and assistance relating to the Acquired Assets (including access to Documents) as is reasonably necessary for the filing of all Tax Returns, the making of any election relating to Taxes, the preparation for any audit by any taxing authority and the prosecution or defense of any claims, suit or proceeding relating to any Tax; provided, however, that (other than as required pursuant to this Section 8.1(b)) neither Buyer nor any Seller shall be required to disclose the contents of its income tax returns to any Person. Any expenses incurred in furnishing such information or assistance pursuant to this Section 8.1(b) shall be borne by the Party requesting it. Notwithstanding any other provisions in this Agreement, Buyer and Sellers hereby waive compliance with all “bulk sales,” “bulk transfer” and similar laws that may be applicable with respect to the sale and transfer of any or all of the Acquired Assets to Buyer. Payments Received . Sellers, on the one hand, and Buyer, on the other hand, each agree that, after the Closing, each will hold and will promptly transfer and deliver to the other, from time to time as and when received by them, any cash, checks with appropriate endorsements (using their best efforts not to convert such checks into cash) or other property that they may receive on or after the Closing which properly belongs to the other and will account to the other for all such receipts. Confidentiality
Appears in 1 contract
Bankruptcy Court Filings and Approval. (a) Sellers 5.7.1 Seller shall use their reasonable best efforts to comply with the deadlines set forth in the Bidding Procedures or the Bidding Procedures Order, as applicable.
(b) The Parties shall consult with each other regarding pleadings that any of them intends to file with the Bankruptcy Court in connection with, or which might reasonably affect the Bankruptcy Court’s approval of the Sale Order, including, with respect to Sellers, sharing in advance any drafts thereof for Buyer’s review and comment. Each Seller shall promptly provide Buyer and its counsel with copies of all notices, filings and orders of the Bankruptcy Court that such Seller has in its possession (or receives) pertaining to the Sale Motion, or any other order related to any of the transaction contemplated by this Agreement, but only to the extent such papers are not publicly available on the docket of the Bankruptcy Court or otherwise made available to Buyer and its counsel. No Seller shall seek any modification to the Bidding Procedures Order and the Sale Order by the Bankruptcy Court or any other Governmental Authority of competent jurisdiction to which a decision relating to the Bankruptcy Cases has been appealed, in each case, without the prior written consent of Buyer (not to be unreasonably withheld).
(c) Sellers shall use their commercially reasonable efforts to obtain entry of the Sale Order and such other relief from the Bankruptcy Court as may be necessary or appropriate in connection with this Agreement and the consummation of the transactions contemplated by this Agreement. Buyer agrees that it will promptly take such actions as are reasonably requested by Sellers to assist in obtaining entry of the Sale Order andOn December 13, consistent 2022, Seller filed with Section 8.3 below, a finding by the Bankruptcy Court of adequate assurance of future performance by Buyer.[D.I. 33] a motion (the “Bidding Procedures Motion”) for:
(da) Sellers entry of an order, which was approved on January 24, 2023 [D.I. 257] (the “Bidding Procedures Order”), (a) establishing the Bidding Procedures (as defined in the Bidding Procedures Order), (b) approving procedures for the assumption and Buyer acknowledge that this Agreement assignment of contracts, and (c) setting sale milestones and scheduling related hearings; and
(b) entry of an order substantially in the form to be filed with the Bankruptcy Court, which form shall be reasonably acceptable to the Seller and the Buyer, authorizing and approving pursuant to Sections 105, 363, and 365 of the Bankruptcy Code, inter alia, (i) the sale of the Acquired Purchased Assets of the Seller to Buyer on the terms and conditions set forth herein, free and clear of all Encumbrances (to the extent set forth therein), other than Permitted Encumbrances and Assumed Liabilities, and (ii) the assumption and assignment of the Assigned Agreements are subject Purchased Contracts to Bankruptcy Court approval. Sellers and Buyer acknowledge (as amended, modified, or supplemented (to the extent that (i) such amendments, modifications or supplements would reasonably be expected to obtain such approvaldelay, Sellers must demonstrate that they have taken reasonable steps to obtain the highest interfere or otherwise best offer possible for impede the Acquired Assets and otherwise have complied consummation of the Closing, with the Bankruptcy Code requirements for approval consent of the sale of the Acquired Assets to Buyer and (ii) Buyer must provide adequate assurance of future performance under the Assigned Agreements Buyer, not to be assigned by Sellersunreasonably withheld), the “Sale Order”).
5.7.2 [Reserved]
5.7.3 Seller shall give appropriate notice, and Buyer hereby agrees to provide all appropriate assurances thereof necessary in order to obtain the foregoing approvals.
(e) Sellers shall give all notices required to be given by applicable Lawopportunity for hearing, to all Persons entitled thereto, of all motions (including the motions seeking entry of the Sale Order)motions, orders, hearings hearings, and other proceedings relating to this Agreement or any Ancillary Agreement and the transactions contemplated hereby and thereby and such additional notice as ordered by the Bankruptcy Court or as Buyer may reasonably request.
5.7.4 Seller shall use its commercially reasonable efforts, and shall cooperate, assist and consult with Buyer, to secure the entry of the Sale Order. Sellers Seller and Buyer shall take all commercially reasonable actions as may be reasonably necessary to cause the Sale Order to be issued and entered, including, to the extent reasonably practicable, furnishing affidavits, declarations or other documents or information for filing with the Bankruptcy Court. Buyer agrees that it will promptly provide take such commercially reasonable actions as are reasonably requested by Seller to assist in obtaining entry of the Sale Order and a finding of adequate assurance of future performance by Xxxxx, including furnishing affidavits or other documents or information for filing with the Bankruptcy Court for the purposes, among others, of (x) providing necessary assurances of performance by Buyer with copies under this Agreement and demonstrating that Buyer is a “good faith” purchaser under Section 363(m) of all communications the Bankruptcy Code, and (y) establishing adequate assurance of future performance within the meaning of Section 365 of the Bankruptcy Code.
5.7.5 Buyer acknowledges that under the Bankruptcy Code, the sale is subject to approval of the Bankruptcy Court. Buyer acknowledges that to obtain such approval Seller must demonstrate that it has taken reasonable steps to obtain the highest or otherwise best bid possible for the assets, including giving notice of the transactions contemplated by this Agreement to creditors and other interested parties as ordered by the Bankruptcy Court, providing information about the assets to prospective Qualified Bidders (as defined in the Bidding Procedures Order), and entertaining any higher or otherwise better offers from prospective Qualified Bidders.
5.7.6 If the Sale Order or any other orders of the Bankruptcy Court relating to this Agreement or the motions seeking entry of transactions contemplated hereby shall be appealed by any Person (or if any petition for certiorari or motion for reconsideration, amendment, clarification, modification, vacation, stay, rehearing or reargument shall be filed with respect to the Sale Order.
(f) In the event an appeal is taken Order or a stay pending appeal is requested from the Sale Orderother such order), Sellers and this Agreement has not otherwise been terminated pursuant to Section 8.1, Seller shall immediately notify Buyer of such appeal appeal, petition, or stay request motion and shall provide to Buyer promptly 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 connection with any appeal from or stay request in respect of such order. Sellers and Buyer shall use their respective commercially reasonable efforts to defend such appeal appeal, petition, or stay request motion and shall use its reasonable best efforts to obtain an expedited resolution of any such appeal, petition, or motion.
(g) After 5.7.7 Subject to entry of the Sale Order, Sellers (a) on or prior to the Closing, Buyer shall pay the Cure Costs, up to the Cure Cost Cap, and Seller shall pay the remaining Cure Costs, if any, under the Purchased Contracts (excluding any Purchased Contracts that are Previously Omitted Contracts (as defined in the Bidding Procedures Order) or Disputed Contracts for which Cure Costs have not take any action been consensually agreed with the Contract counterparty or fixed by an order of the Bankruptcy Court as of the Closing) so that such Purchased Contracts may be assumed by the Seller and assigned to the Buyer (subject to payment by Buyer and Seller, as applicable, of the Cure Costs and provision by the Buyer of adequate assurance of future performance), and (b) with respect to each Purchased Contract that is a Previously Omitted Contract or a Disputed Contract for which Cure Costs have not been consensually agreed upon with the Contract counterparty or fixed by an order of the Bankruptcy Court, on the date that is intended tofive (5) Business Days after the date on which (i) the Cure Costs with respect to such Purchased Contract have been consensually agreed, or fail (ii) the Bankruptcy Court has entered an order fixing such Cure Costs, Buyer shall pay such Cure Costs, up to take any action the intent Cure Cost Cap, and Seller shall pay the remaining Cure Costs, so that such Purchased Contracts may be assumed by the Seller and assigned to the Buyer (subject to payment by Xxxxx and Seller, as applicable, of which failure to act is tothe Cure Costs and provision by the Buyer of adequate assurance of future performance), result in each case of the reversalforegoing clauses (a) and (b), voidingin accordance with the provisions of Section 365 of the Bankruptcy Code, modification or staying of the Bidding Procedures Order, the Sale Order, and this Agreement. The Seller agrees that it will promptly take such commercially reasonable actions as are necessary to obtain an order of the Bankruptcy Court (which may be the Sale Order) providing for the assumption and assignment of such Contracts. For the avoidance of doubt, if there is any inconsistency between this Agreement and the Bidding Procedures Order with respect to the assumption and assignment of the Contracts, or the payment of the Cure Costs, the Bidding Procedures Order shall govern.
5.7.8 If there is an objection by a non-debtor Purchased Contract counterparty to the Cure Costs asserted by Seller with regard to any Contract (other than an Essential Contract) (such contract, a “Disputed Contract”), and if (i) Seller or Buyer settles with the counterparty to the Disputed Contract regarding Cure Costs (a “Disputed Contract Settlement”), or (ii) the Bankruptcy Court enters a final order determining Cure Costs with respect to the Disputed Contract (a “Disputed Contract Order”), in either case in a manner that fixes Cure Costs in an amount that is unacceptable to Seller, Seller shall have the option, within ten (10) days of receiving notice of the Disputed Contract Settlement or the entry of the Disputed Contract Order to designate the Disputed Contract as no longer a Purchased Contract, in which case Buyer shall not assume the Disputed Contract and neither Seller nor Buyer shall be responsible for any Cure Costs associated with such Disputed Contract (such contract, a “Rejected Contract”); provided, however, Buyer has the option, in its sole election, to require Seller to assume and assign the Rejected Contract to Buyer as a condition to closing if Buyer elects to pay any Cure Costs that exceed the proposed Cure Costs (the “Additional Cure Costs”); provided further, however, that the Seller shall use its reasonable best efforts, in cooperation with the Buyer, to resolve any disputes regarding the Cure Costs relating to any Disputed Contract. In the case of the foregoing, Buyer shall remain responsible for payment of the Cure Costs and the Closing Payment pursuant to Section 2.3.1 shall be adjusted to include the applicable Contract’s Additional Cure Cost. For the avoidance of doubt, any Contract that is a Disputed Contract as of the Closing shall not be deemed a Purchased Contract at the Closing. Notwithstanding anything herein to the contrary, the Parties understand and agree that this Agreement is specifically conditioned on the assumption and assignment of the Essential Contracts and that the Essential Contracts shall not constitute Disputed Contracts. These Essential Contracts must be assumed and assigned by Seller to Buyer as a condition to Closing.
Appears in 1 contract
Bankruptcy Court Filings and Approval. (a) Not later than March 3, 2019, Seller Parent and each of the other Sellers shall use their reasonable best efforts to comply with the deadlines set forth in the Bidding Procedures or the Bidding Procedures Order, as applicable.
(b) The Parties shall consult with each other regarding pleadings that any file voluntary petitions for relief commencing a case under chapter 11 of them intends to file with the Bankruptcy Court Code in connection with, or which might reasonably affect the Bankruptcy Court’s , and file and serve one or more motions, each in form and substance reasonably acceptable to the Buyer, seeking approval of (i) the Sale Order, including, DIP Credit Agreement and the related guarantees and liens contemplated to be provided with respect to Sellersthe DIP Credit Agreement on an interim and final basis, sharing in advance any drafts thereof for Buyer’s review and comment. Each Seller shall promptly provide Buyer and its counsel with copies of all notices, filings and orders of the Bankruptcy Court that such Seller has in its possession (or receivesii) pertaining to the Sale Motion, or any other order related to any of the transaction contemplated by this Agreement, but only to the extent such papers are not publicly available on the docket of the Bankruptcy Court or otherwise made available to Buyer and its counsel. No Seller shall seek any modification to the Bidding Procedures Order and the Sale Order by (the motion filed pursuant to this clause (ii), the "Sale Motion") and (iii) the assumption of the Services Agreement (if not earlier terminated).
(b) Not later than five (5) days following the Petition Date, the Bankruptcy Court or any other Governmental Authority of competent jurisdiction to which a decision relating to shall have entered the Bankruptcy Cases has been appealed, in each case, without the prior written consent of Buyer (not to be unreasonably withheld)Interim DIP Order.
(c) Sellers shall use their commercially reasonable efforts to obtain entry of Not later than thirty-five (35) days after the Sale Order and such other relief from Petition Date, the Bankruptcy Court as may be necessary or appropriate in connection with this Agreement shall have entered the Final DIP Order and the consummation of the transactions contemplated by this Agreement. Buyer agrees that it will promptly take such actions as are reasonably requested by Sellers to assist in obtaining entry of the Sale Order and, consistent with Section 8.3 below, a finding by the Bankruptcy Court of adequate assurance of future performance by BuyerProcedures Order.
(d) Sellers and Buyer acknowledge that this Agreement and Not later than sixty (60) days after the sale of Petition Date, the Acquired Assets and Auction (if necessary) shall have been held pursuant to the assumption and assignment of the Assigned Agreements are subject to Bankruptcy Court approval. Sellers and Buyer acknowledge that (i) to obtain such approval, Sellers must demonstrate that they have taken reasonable steps to obtain the highest or otherwise best offer possible for the Acquired Assets and otherwise have complied with the Bankruptcy Code requirements for approval of the sale of the Acquired Assets to Buyer and (ii) Buyer must provide adequate assurance of future performance under the Assigned Agreements to be assigned by Sellers, and Buyer hereby agrees to provide all appropriate assurances thereof necessary in order to obtain the foregoing approvalsSale Procedures Order.
(e) Not later than seventy-five (75) days following the Petition Date, the Bankruptcy Court shall have entered the Sale Order.
(f) The Buyer agrees and acknowledges that the Sellers and their Affiliates shall be permitted, and shall be permitted to cause their Representatives, to initiate contact with, solicit or encourage submission of any inquiries, proposals or offers by, respond to any unsolicited inquiries, proposals or offers submitted by, and enter into any discussions or negotiations regarding any of the foregoing with, any Person (in addition to the Buyer and its Affiliates and Representatives) relating to a Competing Bid or a Treximet Bid; provided, that from the date hereof until the bid deadline pursuant to the Sales Procedure Order, Sellers shall (i) promptly (and in any event within one (1) Business Day) notify the Buyer of any written Competing Bid or written Treximet Bid, (ii) promptly (and in any event within one (1) Business Day) notify the Buyer of the identity of any Person making a written Competing Bid or written Treximet Bid and provide a copy of such Competing Bid or Treximet Bid and a summary of the material unwritten terms of any Competing Bid or Treximet Bid and any material updates thereto and (iii) make available to Buyer all written due diligence information made available to the Person making such written Competing Bid or written Treximet Bid and/or its Representatives that has not been made available to Buyer (the obligations set forth in clauses (i), (ii) and (iii), the "Competing Bid Obligations"). The Buyer's sole and exclusive remedy for any threatened or actual breach by the Sellers of their Competing Bid Obligations shall be to exercise their rights to specific performance under Section 9.15.
(g) The Sellers shall give all notices required to be given by applicable Law, to all Persons entitled thereto, the Buyer reasonable advance notice and proposed drafts of all motions (including the motions seeking entry of the Sale Order)pleadings, motions, orders, hearings notices, other papers, hearings, and other proceedings relating to this Agreement and the transactions contemplated hereby hereby, and thereby shall provide the Buyer and its counsel with a reasonable opportunity to review such additional notice as ordered by papers prior to filing with the Bankruptcy Court unless such advance notice is impossible or as Buyer may reasonably request. impracticable under the circumstances, in which case the Sellers shall promptly provide Buyer with deliver copies of all communications from such papers substantially simultaneously with the filing with the Bankruptcy Court relating to Court.
(h) The Sellers shall serve notices of assumption of the motions seeking entry Transferred Contracts, including designation of Cure Claims, in form and substance approved by the Buyer, on all necessary parties substantially concurrently with the filing of the Sale OrderMotion.
(fi) In the event an appeal is taken or a stay pending appeal is requested requested, from the Sale Order, the Sellers shall immediately notify the Buyer of such appeal or stay request and shall provide to the Buyer promptly a copy of the related notice of appeal or order of stay. The Sellers shall also provide the Buyer with written notice of any motion or application filed in connection with any appeal from or stay request in respect of such orderorders. The Sellers agree to take all action as may be reasonable and Buyer shall use their respective commercially reasonable efforts appropriate to defend against such appeal or stay request and the Sellers and the Buyer agree to use their reasonable efforts to obtain an expedited resolution of such appealappeal or stay request; provided, that nothing herein shall preclude the parties hereto from consummating the transactions contemplated hereby, if the Sale Order shall have been entered and has not been stayed and the Buyer, in its sole and absolute discretion, waives in writing the condition that the Sale Order be a Final Order.
(gj) After entry of the Sale Order, to the extent the Buyer is the Successful Bidder, the Sellers shall not take any action which is intended to, or fail to take any action the intent of which failure to act is to, result in the reversal, voiding, modification or staying of the Sale OrderOrder unless the Buyer consents to such action in writing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Pernix Therapeutics Holdings, Inc.)
Bankruptcy Court Filings and Approval. (a) Sellers shall use their reasonable best efforts to comply with the deadlines set forth in the Bidding Procedures or the Bidding Procedures Order, as applicable.
(b) 5.9.1 The Parties shall consult with each other regarding pleadings that any of them intends to file with the Bankruptcy Court in connection with, or which might reasonably affect the Bankruptcy Court’s approval of the Sale Order, including, with respect to Sellers, sharing in advance any drafts thereof for Buyer’s review and comment. Each Seller shall promptly provide Buyer and its counsel with copies of all notices, filings and orders of the Bankruptcy Court that such Seller has in its possession (or receives) pertaining to the Sale Motion, or any other order related to any of the transaction contemplated by this Agreement, but only to the extent such papers are not publicly available on the docket of the Bankruptcy Court or otherwise made available to Buyer and its counsel. No Seller shall seek any modification to the Bidding Procedures Order and the Sale Order by the Bankruptcy Court or any other Governmental Authority of competent jurisdiction to which a decision relating to the Bankruptcy Cases has been appealed, in each case, without the prior written consent of Buyer (not to be unreasonably withheld).
(c) Sellers U.S. Debtors shall use their commercially reasonable efforts to obtain entry of the Sale Bidding Procedures Order and the Approval Order and such other relief from the Bankruptcy Court as may be necessary or appropriate in connection with this Agreement and the consummation of the transactions contemplated by this Agreement. Buyer agrees that it will promptly take such actions as are reasonably requested by Sellers On or prior to assist in obtaining entry of September 19, 2018, the Sale Order and, consistent U.S. Debtors shall file with Section 8.3 below, a finding by the Bankruptcy Court of adequate assurance of future performance by Buyer.a motion in form and substance reasonably satisfactory to Buyer (the “Approval Motion”) for:
(da) Sellers entry of an order substantially in the form of Exhibit F and in all cases in form and substance acceptable to Buyer acknowledge (as amended, modified, or supplemented (to the extent that this Agreement such amendments, modifications or supplements would reasonably be expected to delay, interfere or otherwise impede the consummation of the Closing, with the consent of Buyer, not to be unreasonably withheld), the “Bidding Procedures Order,” and together with the Approval Order, the “Bankruptcy Court Orders”), among other things, (A) establishing bidding procedures substantially in the form of Exhibit G and in all cases in form and substance acceptable to Buyer governing the sale of the Acquired Purchased Assets (the “Bid Procedures”), (B) approving payment of the Termination Fee and the Expense Reimbursement, to the extent payable by the terms of this Agreement or the Bidding Procedures Order, and (C) providing that the Termination Fee and the Expense Reimbursement shall constitute superpriority administrative expenses of the U.S. Debtors, with priority over any and all administrative expenses of the kind specified in Sections 503(b)(1) and 507(a) of the Bankruptcy Code and if triggered, shall be payable from the proceeds of any Alternative Transaction for the Purchased Assets, at the closing of such Alternative Transaction, free and clear of all liens (including those arising under the DIP Financing Order). The U.S. Debtors shall use commercially reasonable efforts to seek entry of the Bidding Procedures Order by 30 days after the date of this Agreement; provided, that the failure to have the Bidding Procedures Order entered by 30 days after the Petition Date shall not be a termination event under this Agreement; and
(b) entry of an order substantially in the form of Exhibit H, and in all cases in form and substance satisfactory to Buyer, authorizing and approving, inter alia, the sale of the Purchased Assets of the U.S. Debtors to Buyer on the terms and conditions set forth herein, free and clear of all Encumbrances (to the extent set forth therein), and the assumption and assignment of the Assigned Agreements are subject Purchased Contracts to Bankruptcy Court approval. Sellers Buyer (as amended, modified, or supplemented (to the extent that such amendments, modifications or supplements would reasonably be expected to delay, interfere or otherwise impede the consummation of the Closing, with the consent of Buyer, not to be unreasonably withheld), the “Approval Order”).
5.9.2 If an Auction is conducted, and Buyer acknowledge is not the prevailing party at the conclusion of such Auction (such prevailing party, the “Successful Bidder”) but is the next highest bidder, as determined by Seller, at the Auction, Buyer shall be required to serve as a back-up bidder (the “Back-up Bidder”) and keep Buyer’s bid to consummate the transactions contemplated by this Agreement on the terms and conditions set forth in this Agreement (as the same may be revised in the Auction with the consent of Buyer) open and irrevocable in accordance with the Bidding Procedures Order until the Outside Date.
5.9.3 Seller shall use commercially reasonable efforts to cause the bidding procedures approved by the Bidding Procedures Order to provide that any condition to closing set forth in any qualified bid with respect to an Alternative Transaction cannot be more onerous (in any material respect) to Seller than any similar conditions set forth in this Agreement it being acknowledged and agreed that such qualified bid for an Alternative Transaction may have (i) additional conditions to obtain such approval, Sellers must demonstrate closing that they have taken reasonable steps to obtain are required by law or as a result of the highest or otherwise best offer possible structure of the qualified bid for the Acquired Assets and otherwise have complied with the Bankruptcy Code requirements for approval of the sale of the Acquired Assets to Buyer and Alternative Transaction, (ii) Buyer must provide adequate assurance of future performance under the Assigned Agreements less conditions to be assigned by Sellersclosing, or (iii) conditions to closing that are more favorable to Seller.
5.9.4 Seller shall give appropriate notice, and Buyer hereby agrees to provide all appropriate assurances thereof necessary in order to obtain the foregoing approvals.
(e) Sellers shall give all notices required to be given by applicable Lawopportunity for hearing, to all Persons entitled thereto, of all motions (including the motions seeking entry of the Sale OrderApproval Motion), orders, hearings hearings, and other proceedings relating to this Agreement or any Ancillary Agreement and the transactions contemplated hereby and thereby and such additional notice as ordered by the Bankruptcy Court or as Buyer may reasonably request. Sellers .
5.9.5 Seller shall promptly provide Buyer use its commercially reasonable efforts, and shall cooperate, assist and consult with copies Buyer, to secure the entry of all communications from the Bidding Procedures Order and the Approval Order.
5.9.6 If the Bidding Procedures Order, Approval Order or any other orders of the Bankruptcy Court relating to this Agreement or the motions seeking entry of transactions contemplated hereby shall be appealed by any Person (or if any petition for certiorari or motion for reconsideration, amendment, clarification, modification, vacation, stay, rehearing or reargument shall be filed with respect to the Sale Order.
(f) In the event an appeal is taken or a stay pending appeal is requested from the Sale Approval Order, Sellers Bidding Procedures Order or other such order), and this Agreement has not otherwise been terminated pursuant to Section 8.1, Seller shall immediately notify Buyer of such appeal appeal, petition, or stay request motion and shall provide to Buyer promptly 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 connection with any appeal from or stay request in respect of such order. Sellers and Buyer shall use their respective commercially reasonable efforts to defend such appeal appeal, petition, or stay request motion and shall use their reasonable best efforts to obtain an expedited resolution of any such appeal.
(g) After entry of the Sale Order, Sellers shall not take any action which is intended topetition, or fail to take any action the intent of which failure to act is to, result in the reversal, voiding, modification or staying of the Sale Ordermotion.
Appears in 1 contract
Samples: Asset Purchase Agreement (Aralez Pharmaceuticals Inc.)
Bankruptcy Court Filings and Approval. (a) Sellers 5.7.1 Seller shall use their reasonable best efforts to comply with the deadlines set forth in the Bidding Procedures or the Bidding Procedures Order, as applicable.
(b) The Parties shall consult with each other regarding pleadings that any of them intends to file with the Bankruptcy Court in connection with, or which might reasonably affect the Bankruptcy Court’s approval of the Sale Order, including, with respect to Sellers, sharing in advance any drafts thereof for Buyer’s review and comment. Each Seller shall promptly provide Buyer and its counsel with copies of all notices, filings and orders of the Bankruptcy Court that such Seller has in its possession (or receives) pertaining to the Sale Motion, or any other order related to any of the transaction contemplated by this Agreement, but only to the extent such papers are not publicly available on the docket of the Bankruptcy Court or otherwise made available to Buyer and its counsel. No Seller shall seek any modification to the Bidding Procedures Order and the Sale Order by the Bankruptcy Court or any other Governmental Authority of competent jurisdiction to which a decision relating to the Bankruptcy Cases has been appealed, in each case, without the prior written consent of Buyer (not to be unreasonably withheld).
(c) Sellers shall use their commercially reasonable efforts to obtain entry of the Bidding Procedures Order and the Sale Order and such other relief from the Bankruptcy Court as may be necessary or appropriate in connection with this Agreement and the consummation of the transactions contemplated by this Agreement. Buyer agrees that it will promptly take such actions as are reasonably requested by Sellers to assist in obtaining entry Promptly after execution of the Sale Order andthis Agreement, consistent Seller shall file with Section 8.3 below, a finding by the Bankruptcy Court a motion in form and substance reasonably acceptable to Seller and Buyer (the “Bidding Procedures Motion”) seeking:
(a) entry of adequate assurance an order in form and substance reasonably acceptable to Seller and Buyer (the “Bidding Procedures Order,” and together with the Sale Order, the “Bankruptcy Court Orders”), (a) establishing the Bidding Procedures (as defined in the Bidding Procedures Order), (b) approving procedures for the assumption and assignment of future performance by Buyer.
contracts, (c) setting sale milestones and scheduling related hearings, and (d) Sellers approving the Termination Fee and Expense Reimbursement; and
(b) entry of an order substantially in the form to be filed with the Bankruptcy Court, which proposed form shall be in form and substance acceptable to the Seller and the Buyer, and with such changes the Seller and the Buyer acknowledge that this Agreement find reasonably acceptable, authorizing and approving pursuant to Sections 105, 363, and 365 of the Bankruptcy Code, inter alia, (i) the sale of the Acquired Purchased Assets of the Seller to Buyer on the terms and conditions set forth herein, free and clear of all Encumbrances (to the extent set forth therein), other than Permitted Encumbrances and Assumed Liabilities, (ii) the assumption and assignment of the Assigned Agreements are subject Purchased Contracts to Bankruptcy Court approval. Sellers and Buyer acknowledge that (iiii) to obtain such approval, Sellers must demonstrate that they have taken reasonable steps to obtain Seller has acted in “good faith” within the highest or otherwise best offer possible for the Acquired Assets and otherwise have complied with meaning of Section 363(m) of the Bankruptcy Code requirements for approval of Code; (iv) this Agreement was negotiated, proposed and entered into by the sale of the Acquired Assets to Buyer Parties without collusion, in good faith and from arm’s length bargaining positions, and (iiv) Buyer must provide adequate assurance shall have no Liability or responsibility for any Liability or other obligation of future performance Seller arising under or related to the Assigned Agreements to be assigned by SellersPurchased Assets other than as expressly set forth in this Agreement, including successor or vicarious Liabilities of any kind or character, including any theory of antitrust, environmental, successor, or transferee Liability, labor law, de facto merger, or substantial continuity (as amended, modified, or supplemented, the “Sale Order”).
5.7.2 Seller shall give appropriate notice, and Buyer hereby agrees to provide all appropriate assurances thereof necessary in order to obtain the foregoing approvals.
(e) Sellers shall give all notices required to be given by applicable Lawopportunity for hearing, to all Persons entitled thereto, of all motions (including the motions seeking entry of the Sale OrderBidding Procedures Motion), orders, hearings hearings, and other proceedings relating to this Agreement or any Ancillary Agreement and the transactions contemplated hereby and thereby and such additional notice as ordered by the Bankruptcy Court or as Buyer may reasonably request.
5.7.3 Seller and Buyer shall take all commercially reasonable actions as may be reasonably necessary to cause the Bidding Procedures Order and Sale Order to become Final Orders, including, to the extent reasonably practicable, furnishing affidavits, declarations or other documents or information for filing with the Bankruptcy Court. Sellers shall Buyer agrees that it will promptly provide take such commercially reasonable actions as are reasonably requested by Seller to assist in obtaining entry of the Bidding Procedures Order, to the extent applicable, and Sale Order and a finding of adequate assurance of future performance by Xxxxx, including furnishing affidavits or other documents or information for filing with the Bankruptcy Court for the purposes, among others, of (x) providing necessary assurances of performance by Buyer with copies under this Agreement and demonstrating that Buyer is a “good faith” purchaser under Section 363(m) of all communications the Bankruptcy Code, and (y) establishing adequate assurance of future performance within the meaning of Section 365 of the Bankruptcy Code.
5.7.4 Buyer acknowledges that under the Bankruptcy Code, the sale is subject to approval of the Bankruptcy Court. Buyer acknowledges that to obtain such approval Seller must demonstrate that it has taken reasonable steps to obtain the highest or otherwise best bid possible for the assets, including giving notice of the transactions contemplated by this Agreement to creditors and other interested parties as ordered by the Bankruptcy Court, providing information about the assets to prospective Qualified Bidders (to be defined in the Bidding Procedures Order), and entertaining any higher or otherwise better offers from prospective Qualified Bidders.
5.7.5 If the Bidding Procedures Order, Sale Order or any other orders of the Bankruptcy Court relating to this Agreement or the motions seeking entry of the Sale Order.
transactions contemplated hereby shall be appealed by any Person (f) In the event an appeal is taken or a stay pending appeal is requested from if any petition for certiorari or motion for reconsideration, amendment, clarification, modification, vacation, stay, rehearing or reargument shall be filed with respect to the Sale Order, Sellers Bidding Procedures Order or other such order), and this Agreement has not otherwise been terminated pursuant to Section 8.1, Seller shall immediately notify Buyer of such appeal appeal, petition, or stay request motion and shall provide to Buyer promptly 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 connection with any appeal from or stay request in respect of such order. Sellers and Buyer shall use their respective commercially reasonable efforts to defend such appeal appeal, petition, or stay request motion and shall use commercially reasonable efforts to obtain an expedited resolution of any such appeal, petition, or motion.
(g) After 5.7.6 Subject to entry of the Sale Order, Sellers (a) on or prior to the Closing, Seller shall pay the Cure Costs and cure any and all other defaults and breaches under the Purchased Contracts to the extent required under section 365 of the Bankruptcy Code (excluding any Purchased Contracts in which there is an objection by a non-debtor Purchased Contract counterparty to the Cure Costs asserted by Seller with regard to any such Contract or other dispute as to the assumption or assignment of such Contract (such contract, a “Disputed Contract”) for which Cure Costs (or other matters related to the assumption and assignment of such Contract) have not take any action been consensually agreed with the Contract counterparty and Seller or fixed by an order of the Bankruptcy Court as of the Closing) so that such Purchased Contracts may be assumed by Seller and assigned to Buyer (subject to payment by Seller of the Cure Costs and provision by the Buyer of adequate assurance of future performance), and (b) with respect to each Purchased Contract that is a Disputed Contract for which Cure Costs (or other matters related to the assumption and assignment of such Contract) have not been consensually agreed upon with the Contract counterparty and Seller or fixed by an order of the Bankruptcy Court, on the date that is intended tofive (5) Business Days after the date on which (i) the Cure Costs with respect to such Purchased Contract have been consensually agreed, or fail (ii) the Bankruptcy Court has entered an order fixing such Cure Costs, Seller shall pay such Cure Costs so that such Purchased Contracts may be assumed by the Seller and assigned to the Buyer (subject to payment by Seller of the Cure Costs and provision by the Buyer of adequate assurance of future performance), in each case of the foregoing clauses (a) and (b), in accordance with the provisions of Section 365 of the Bankruptcy Code, the Bidding Procedures Order, the Sale Order and this Agreement; provided, that, notwithstanding anything to the contrary herein, Seller shall be entitled to designate any Disputed Contract as an Excluded Contract in its sole discretion upon Notice to Buyer (email to counsel being sufficient) at any time during the pendency of the dispute and, in any event, within five (5) Business Days after the date on which the Bankruptcy Court has entered an order fixing a Cure Cost that is higher than the amount listed on the Cure Cost Certificate; provided, further, that Buyer may elect to assume such Contract if it is material to the Business (and have such Contract be treated as an Assumed Contract hereunder) by notifying Seller, and Seller shall be required to pay any Cure Costs in excess of the amount set forth on the Cure Cost Certificate. Seller agrees that it will promptly take any action such commercially reasonable actions as are necessary to obtain a final order of the intent of Bankruptcy Court (which failure to act is to, result in the reversal, voiding, modification or staying of may be the Sale Order) providing for the assumption and assignment of such Contracts that are not designated as Excluded Contracts. For the avoidance of doubt, if there is any inconsistency between this Agreement and the Bidding Procedures Order with respect to the assumption and assignment of the Contracts, or the payment of the Cure Costs, the Bidding Procedures Order shall govern.
Appears in 1 contract
Samples: Asset Purchase Agreement (NanoString Technologies Inc)
Bankruptcy Court Filings and Approval. (a) Sellers Seller shall use their reasonable best efforts to comply file the Sale Motion with the deadlines set forth in Bankruptcy Court as soon as reasonably practicable after the Bidding Procedures or Petition Date but not later than three (3) Business Days after the Bidding Procedures Order, as applicablePetition Date.
(b) The Parties Seller shall consult with each other regarding pleadings that any of them intends use commercially reasonable efforts to file with cause the Bankruptcy Court in connection withto enter (i) the Sale Procedures Order no later than twenty-five (25) days following the Petition Date; provided, or which might reasonably affect however, if entry of the Sale Procedures Order is delayed due to the Bankruptcy Court’s approval unavailability, the next Business Day on which the Bankruptcy Court is available, and (ii) the Sale Order no later than sixty-five (65) days following the Petition Date; provided, however, if entry of the Sale OrderOrder is delayed due to the Bankruptcy Court’s unavailability, including, with respect to Sellers, sharing in advance any drafts thereof for Buyer’s review and comment. Each Seller shall promptly provide Buyer and its counsel with copies of all notices, filings and orders of the next Business Day on which the Bankruptcy Court that such Seller has in its possession (or receives) pertaining is available, which Sale Order shall approve a sale to the Successful Bidder at any Auction conducted under the Sale Motion, Procedures Order or any other order related to any of the transaction contemplated by this Agreement, but only to the extent such papers are not publicly available on the docket of the Bankruptcy Court or otherwise made available to Buyer and its counsel. No Seller shall seek any modification to the Bidding Procedures Order and the Sale Order by the Bankruptcy Court or any if there are no other Governmental Authority of competent jurisdiction to which a decision relating to the Bankruptcy Cases has been appealed, in each case, without the prior written consent of Buyer (not to be unreasonably withheld)qualified bidders.
(c) Sellers shall Buyer agrees that it will use their commercially reasonable its best efforts to obtain entry of ensure that the Sale sale Procedures Order shall provide for the Break-Up Fee and such other relief from the Bankruptcy Court as may be necessary or appropriate in connection with this Agreement and the consummation of the transactions contemplated by this Agreement. Expense Reimbursement.
(d) Buyer agrees that it will promptly take such actions as are reasonably requested by Sellers Seller to assist in obtaining entry of the Sale Procedures Order and the Sale Order and, consistent with Section 8.3 below8.3, a finding by the Bankruptcy Court of adequate assurance of future performance by Buyer.
(de) Sellers Seller and Buyer acknowledge that this Agreement and the sale of the Acquired Assets and the assumption assumption, assignment, and assignment sale of the Assigned Agreements Assumed Contracts and Assumed Leases are subject to Bankruptcy Court approval. Sellers Seller and Buyer acknowledge that that
(i) to obtain such approval, Sellers Seller must demonstrate that they have it has taken reasonable steps to obtain the highest or otherwise best offer possible for the Acquired Assets and otherwise have complied with subject to the Bankruptcy Code requirements for approval of the sale of the Acquired Assets to Buyer other terms set forth in this Agreement including clause (b) above and (ii) Buyer must provide adequate assurance of future performance under the Assigned Agreements Assumed Contracts and Assumed Leases to be assigned by Sellers, and Buyer hereby agrees to provide all appropriate assurances thereof necessary in order to obtain the foregoing approvalsSeller.
(ef) Sellers Seller shall give serve on all notices counterparties to all of the Assumed Contracts and Assumed Leases, in accordance with the Sale Procedures Order, a notice specifically stating that Seller is seeking the assumption and assignment of the Assumed Contracts and Assumed Leases and shall notify such counterparties of (i) the proposed Cure Claims, if any, in respect of the Assumed Contracts and Assumed Leases and (ii) the deadline for objecting to the assumption and assignment of the Assumed Contracts and Assumed Leases (including, but not limited to, the proposed amount of Cure Claims), which deadline shall be the date established by Order of the Bankruptcy Court. Through the Closing Date, Seller shall use commercially reasonable efforts to promptly obtain all necessary consents and approvals for the assignment and assumption of all Assumed Contracts and Assumed Leases. For the avoidance of doubt, Seller shall not be required to obtain any consents or approvals for the assignment and assumption of any Assumed Contracts and Assumed Leases the assignment of which is authorized by the Sale Order without further consent or approval.
(g) Buyer agrees and acknowledges that (i) Seller and its Affiliates shall be given by applicable Lawpermitted, and shall be permitted to cause their Representatives, to all Persons entitled theretoinitiate contact with, solicit or encourage submission of all motions any inquiries, proposals or offers by, respond to any unsolicited inquiries, proposals or offers submitted by, and enter into any discussions or negotiations regarding any of the foregoing with, any Person (including in addition to Buyer and its Affiliates, agents and Representatives) in accordance with the motions seeking entry terms of the Sale Procedures Order); and (ii) the Sale Procedures approved by the Sale Procedures Order may be supplemented by other customary procedures not inconsistent with the matters otherwise set forth therein and the terms of this Agreement.
(h) Seller shall give such notice of all motions, orders, hearings hearings, and other proceedings relating to this Agreement and the transactions contemplated hereby and thereby and such additional notice herein as ordered by the Bankruptcy Court or as Buyer may reasonably request. Sellers shall promptly provide Buyer with copies of all communications from the Bankruptcy Court relating to the motions seeking entry of the Sale Order.
(f) In the event an appeal is taken or a stay pending appeal is requested from the Sale Order, Sellers shall immediately notify Buyer of such appeal or stay request and shall provide to Buyer promptly 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 connection with any appeal from or stay request in respect of such order. Sellers and Buyer shall use their respective commercially reasonable efforts to defend such appeal or stay request and obtain an expedited resolution of such appeal.
(gi) After entry of the Sale Order, Sellers to the extent Buyer is the Successful Bidder at the Auction, Seller shall not take any action which is intended to, or fail to take any action the intent of which failure to act is to, result in the reversal, voiding, modification or staying of the Sale Order.
Appears in 1 contract
Samples: Asset Purchase Agreement
Bankruptcy Court Filings and Approval. (a) Sellers shall use their reasonable best efforts to comply with the deadlines set forth in the Bidding Procedures or the Bidding Procedures Order, as applicable.
(b) The Parties shall consult with each other regarding pleadings that any of them intends to file with the Bankruptcy Court in connection with, or which might reasonably affect the Bankruptcy Court’s approval of the Sale Order, including, with respect to Sellers, sharing in advance any drafts thereof for Buyer’s review and comment. Each Seller shall promptly provide Buyer and its counsel with copies of all notices, filings and orders of the Bankruptcy Court that such Seller has in its possession (or receives) pertaining to the Sale Motion, or any other order related to any of the transaction contemplated by this Agreement, but only to the extent such papers are not publicly available on the docket of the Bankruptcy Court or otherwise made available to Buyer and its counsel. No Seller shall seek any modification to the Bidding Procedures Order and the Sale Order by the Bankruptcy Court or any other Governmental Authority of competent jurisdiction to which a decision relating to the Bankruptcy Cases has been appealed, in each case, without the prior written consent of Buyer (not to be unreasonably withheld).
(c) Sellers shall use their commercially reasonable efforts to obtain the Ombudsman Report and entry of the Sale Approval Order and such other relief from the Bankruptcy Court as may be necessary or appropriate in connection with this Agreement and the consummation of the transactions contemplated by this Agreement, including, to the extent necessary and appropriate, furnishing affidavits or other documents or information for filing with the Bankruptcy Court for the proposes, among others, of demonstrating that Buyer is a “good faith” purchaser under Section 363(m) of the Bankruptcy Code and that the purchase price was not controlled by an agreement in violation of Section 363(n) of the Bankruptcy Code. Buyer agrees that it will promptly take such actions as are reasonably requested by Sellers to assist in obtaining entry of the Sale Approval Order and, consistent with Section 8.3 below, a finding by and the Bankruptcy Court issuance of adequate assurance of future performance by Buyerthe Ombudsman Report.
(db) Sellers and Buyer acknowledge that this Agreement and the sale of the Acquired Assets and the assumption and assignment of the Assigned Agreements are subject to Bankruptcy Court approval. Sellers and Buyer acknowledge that (i) to obtain such approval, Sellers must demonstrate that they have taken reasonable steps to obtain the highest or otherwise best offer possible for the Acquired Assets and otherwise have complied with the Bankruptcy Code requirements for approval of the sale of the Acquired Assets to Buyer and (ii) Buyer must provide adequate assurance of future performance under the Assigned Agreements to be assigned by Sellers, and Buyer hereby agrees to provide all appropriate assurances thereof necessary in order to obtain the foregoing approvals.
(ec) Sellers shall give all notices required to be given by applicable Law, to all Persons entitled thereto, of all motions (including the motions seeking entry of the Sale Order)any 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 or as Buyer may reasonably request. Sellers shall promptly provide Buyer with copies of all written communications from the Bankruptcy Court relating to the motions seeking motions, certifications, or other pleadings concerning entry of the Sale Approval Order.
(fd) In the event an appeal is taken or a stay pending appeal is requested requested, from the Sale Order or the Approval Order, Sellers shall immediately notify Buyer of such appeal or stay request and shall provide to Buyer promptly 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 connection with any appeal from or stay request in respect of such order. Sellers and Buyer shall use each of their respective commercially reasonable efforts to defend such appeal or stay request and obtain an expedited resolution of such appeal.
(ge) After entry of From and after the Sale Orderdate hereof, Sellers shall not take any action which that is intended to, or fail to take any action the intent of which failure to act is to, result in the reversal, voiding, modification or staying of the Sale Order or the Approval Order.
Appears in 1 contract
Bankruptcy Court Filings and Approval. (a) Sellers shall use their reasonable best efforts to comply with the deadlines set forth in the Bidding Procedures or the Bidding Procedures Order, as applicable.
(b) The Parties shall consult with each other regarding pleadings that any of them intends to file with the Bankruptcy Court in connection with, or which might reasonably affect the Bankruptcy Court’s approval of the Sale Order, including, with respect to Sellers, sharing in advance any drafts thereof for Buyer’s review and comment. Each Seller shall promptly provide Buyer and its counsel with copies of all notices, filings and orders of the Bankruptcy Court that such Seller has in its possession (or receives) pertaining to the Sale Motion, or any other order related to any of the transaction contemplated by this Agreement, but only to the extent such papers are not publicly available on the docket of the Bankruptcy Court or otherwise made available to Buyer and its counsel. No Seller shall seek any modification to the Bidding Procedures Order and the Sale Order by the Bankruptcy Court or any other Governmental Authority of competent jurisdiction to which a decision relating to the Bankruptcy Cases has been appealed, in each case, without the prior written consent of Buyer (not to be unreasonably withheld).
(c) Sellers shall use their commercially reasonable efforts to obtain the Ombudsman Report and entry of the Sale Approval Order and such other relief from the Bankruptcy Court as may be necessary or appropriate in connection with this Agreement and the consummation of the transactions contemplated by this Agreement. Buyer agrees that it will promptly take such actions as are reasonably requested by Sellers to assist in obtaining entry of the Sale Approval Order and, consistent with Section 8.3 below, a finding by and the Bankruptcy Court issuance of adequate assurance of future performance by Buyer.
(d) the Ombudsman Report. Sellers and Buyer acknowledge that this Agreement and the sale of the Acquired Assets and the assumption and assignment of the Assigned Agreements are subject to Bankruptcy Court approval. Sellers and Buyer acknowledge that (i) to obtain such approval, Sellers must demonstrate that they have taken reasonable steps to obtain the highest or otherwise best offer possible for the Acquired Assets and otherwise have complied with the Bankruptcy Code requirements for approval of the sale of the Acquired Assets to Buyer and (ii) Buyer must provide adequate assurance of future performance under the Assigned Agreements to be assigned by Sellers, and Buyer hereby agrees to provide all appropriate assurances thereof necessary in order to obtain the foregoing approvals.
(e) Sellers shall give all notices required to be given by applicable Law, to all Persons entitled thereto, of all motions (including the motions seeking entry of the Sale Order)any 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 or as Buyer may reasonably request. Sellers shall promptly provide Buyer with copies of all written communications from the Bankruptcy Court relating to the motions seeking entry of the Sale Approval Order.
(f) . In the event an appeal is taken or a stay pending appeal is requested requested, from the Sale Order or the Approval Order, Sellers shall immediately notify Buyer of such appeal or stay request and shall provide to Buyer promptly 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 connection with any appeal from or stay request in respect of such order. Sellers and Buyer shall use each of their respective commercially reasonable efforts to defend such appeal or stay request and obtain an expedited resolution of such appeal.
(g) After entry of . From and after the Sale Orderdate hereof, Sellers shall not take any action which that is intended to, or fail to take any action the intent of which failure to act is to, result in the reversal, voiding, modification or staying of the Sale Order or the Approval Order.
Appears in 1 contract
Bankruptcy Court Filings and Approval. (a) Sellers shall use their reasonable best efforts to comply with the deadlines set forth in the Bidding Procedures or the Bidding Procedures Order, as applicable.
(b) The Parties shall consult with each other regarding pleadings that any of them intends to file with the Bankruptcy Court in connection with, or which might reasonably affect the Bankruptcy Court’s approval of the Sale Order, including, with respect to Sellers, sharing in advance any drafts thereof for Buyer’s review and comment. Each Seller shall promptly provide Buyer and its counsel with copies of all notices, filings and orders of the Bankruptcy Court that such Seller has in its possession (or receives) pertaining to the Sale Motion, or any other order related to any of the transaction contemplated by this Agreement, but only to the extent such papers are not publicly available on the docket of the Bankruptcy Court or otherwise made available to Buyer and its counsel. No Seller shall seek any modification to the Bidding Procedures Order and the Sale Order by the Bankruptcy Court or any other Governmental Authority of competent jurisdiction to which a decision relating to the Bankruptcy Cases has been appealed, in each case, without the prior written consent of Buyer (not to be unreasonably withheld).
(c) US Sellers shall use their commercially reasonable efforts to obtain entry of the Sale Order and such other relief from the Bankruptcy Court as may be necessary or appropriate in connection with this Agreement and the consummation of the transactions contemplated by this Agreement. Buyer agrees that it will promptly take such actions as are reasonably requested by US Sellers to assist in obtaining entry of the Sale Order and, consistent with Section 8.3 8.3(a) below, a finding by the Bankruptcy Court of adequate assurance of future performance by Buyer.
(b) As promptly as possible, but in no event later than two (2) Business Days following entry of the Sale Order and on notice to Persons designated by Buyer, Canadian Seller shall bring a motion seeking an Order in the Canadian Proceeding, inter alia, (i) approving this Agreement and the transactions contemplated herein, (ii) exempting the transaction from the provisions of the Bulk Sales Act (Ontario), and (iii) vesting the Canadian Assets in Buyer free and clear of all claims, liens and encumbrances (other than Permitted Encumbrances) effective upon delivery to Buyer of the Receiver’s Certificate confirming that the Purchase Price has been paid, the conditions to Closing have been satisfied or waived and the transactions contemplated in this Agreement have closed to the satisfaction of the Receiver (such order, the “Canadian Sale and Vesting Order”), which Order shall be substantially in the form attached hereto as Exhibit E, with such changes as Buyer may accept acting reasonably. Buyer agrees that it will take such actions as are reasonably requested by Sellers to assist in obtaining entry of the Canadian Sale and Vesting Order. CH\1318529.5
(c) Prior to the filing by Sellers of the applications and motions for the Canadian Orders, Sellers will (i) provide a copy thereof (including, in each case, the related forms of order and notice and supporting materials) to Buyer and its counsel, (ii) provide Buyer and its counsel a reasonable opportunity to review and comment on such document, and any amendment or supplement thereto and (iii) incorporate any reasonable comments of Buyer and its counsel into such document and any amendment or supplement thereto.
(d) Sellers and Buyer acknowledge that this Agreement and the sale of the Acquired Assets and the assumption and assignment of the Assigned Agreements are subject to Bankruptcy Court approvalapproval and approval of the Canadian Court. Sellers and Buyer acknowledge that (i) to obtain such approval, Sellers must demonstrate that they have taken reasonable steps to obtain the highest or and otherwise best offer possible for the Acquired Assets and otherwise have complied with the Bankruptcy Code requirements for approval of the sale of the Acquired Assets to Buyer and (ii) Buyer must provide adequate assurance of future performance under the Assigned Agreements to be assigned by US Sellers, and Buyer hereby agrees to provide all appropriate assurances thereof necessary in order to obtain the foregoing approvals.
(e) Sellers shall give all notices required to be given by applicable Lawappropriate notice, and provide appropriate opportunity for hearing, to all Persons entitled thereto, of all motions (including the motions seeking entry of the Sale OrderOrder and the Canadian Orders), 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 or the Canadian Court or as Buyer may reasonably request. Sellers shall promptly provide Buyer with copies of all communications from the Bankruptcy Court relating to the motions seeking entry of the Sale Order.
(f) In the event an appeal is taken or a stay pending appeal is requested requested, from the Sale OrderOrder or any of the Canadian Orders, Sellers shall immediately notify Buyer of such appeal or stay request and shall provide to Buyer promptly 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 connection with any appeal from or stay request in respect of either of such orderorders. Sellers and Buyer shall use their respective commercially reasonable efforts to defend such appeal or stay request and obtain an expedited resolution of such appeal.
(g) After entry of the Sale Order, Order and the Canadian Sale and Vesting Order Sellers shall not take any action which is intended to, or fail to take any action the intent of which failure to act is to, result in the reversal, voiding, modification or staying of the Sale Order or the Canadian Sale and Vesting Order.
(h) Notwithstanding any other provision of this Agreement to the contrary, subject to the fourth sentence of Section 2.5, at the request of Buyer, Sellers shall transfer and assign the Assigned Agreements set forth on Schedule 7.4(h) to Buyer as of the Closing Date or as soon thereafter as possible, pursuant to, inter alia, Section 365 of the Bankruptcy Code, it being agreed that such assumption and assignment may occur after the Sale Hearing and entry by the Bankruptcy Court of the Sale Order. CH\1318529.5
Appears in 1 contract
Samples: Asset Purchase Agreement (Valeant Pharmaceuticals International, Inc.)
Bankruptcy Court Filings and Approval. (a) Sellers shall use their reasonable best efforts The Endo Companies and the Buyers acknowledge that the transactions contemplated by this Agreement are subject to comply with Bankruptcy Court approval, including entry of the deadlines set forth in the Bidding Procedures or the Bidding Procedures Confirmation Order, as applicable.
(b) The Parties Prior to the Closing: (i) the Rights Offering Order (as defined in the Chapter 11 Plan) shall consult with each other regarding pleadings that have been entered and be in full force and effect; (ii) the applicable Rights Offering Documents (as defined in the Chapter 11 Plan) shall have been or shall be deemed to be executed and delivered, and any of them intends conditions precedent to file the effectiveness thereof as set forth therein shall have been satisfied or waived in accordance therewith; and (iii) all applicable payments, premiums, and fees due under the Rights Offering Documents (including the Backstop Premiums (as defined in the Chapter 11 Plan)) shall have been paid (or shall be paid contemporaneously with the Bankruptcy Court in connection with, or which might reasonably affect the Bankruptcy Court’s approval of the Sale Order, including, with respect to Sellers, sharing in advance any drafts thereof for Buyer’s review and comment. Each Seller shall promptly provide Buyer and its counsel with copies of all notices, filings and orders of the Bankruptcy Court that such Seller has in its possession (or receives) pertaining to the Sale Motion, or any other order related to any of the transaction contemplated by this Agreement, but only to the extent such papers are not publicly available on the docket of the Bankruptcy Court or otherwise made available to Buyer and its counsel. No Seller shall seek any modification to the Bidding Procedures Order and the Sale Order by the Bankruptcy Court or any other Governmental Authority of competent jurisdiction to which a decision relating to the Bankruptcy Cases has been appealed, in each case, without the prior written consent of Buyer (not to be unreasonably withheldClosing).
(c) Sellers From the date hereof until the earlier of (i) the termination of this Agreement in accordance with Article VIII and (ii) the Closing Date, the Endo Companies shall use their have used or shall use, as applicable, commercially reasonable efforts to obtain pursue the entry of the Sale Confirmation Order by the Bankruptcy Court.
(d) The Endo Companies and Buyers shall reasonably cooperate in obtaining the Bankruptcy Court’s entry of the Confirmation Order and any other Order reasonably necessary in connection with the transactions contemplated by this Agreement as promptly as reasonably practicable, including furnishing affidavits, non-confidential financial information, or other documents or information for filing with the Bankruptcy Court and making such advisors of Buyers and Endo Companies and their respective Affiliates available to testify before the Bankruptcy Court for the purposes of, among other relief things, providing adequate assurances of performance by Xxxxxx as required under Section 365 of the Bankruptcy Code.
(e) Each of the Endo Companies and Buyers shall appear formally or informally in the Bankruptcy Court if reasonably requested by the other Party or required by the Bankruptcy Court in connection with the transactions contemplated by this Agreement and keep the other reasonably apprised of the status of material matters related to this Agreement, including, upon reasonable request promptly furnishing the other with copies of notices or other communications received by any Endo Company from the Bankruptcy Court as may be necessary or appropriate in connection any third party and/or any Governmental Authority with this Agreement and the consummation of respect to the transactions contemplated by this Agreement. Buyer agrees that it will promptly take such actions as are reasonably requested by Sellers to assist in obtaining entry of the Sale Order and, consistent with Section 8.3 below, a finding by the Bankruptcy Court of adequate assurance of future performance by Buyer.
(d) Sellers and Buyer acknowledge that this Agreement and the sale of the Acquired Assets and the assumption and assignment of the Assigned Agreements are subject to Bankruptcy Court approval. Sellers and Buyer acknowledge that (i) to obtain such approval, Sellers must demonstrate that they have taken reasonable steps to obtain the highest or otherwise best offer possible for the Acquired Assets and otherwise have complied with the Bankruptcy Code requirements for approval of the sale of the Acquired Assets to Buyer and (ii) Buyer must provide adequate assurance of future performance under the Assigned Agreements to be assigned by Sellers, and Buyer hereby agrees to provide all appropriate assurances thereof necessary in order to obtain the foregoing approvals.
(e) Sellers shall give all notices required to be given by applicable Law, to all Persons entitled thereto, of all motions (including the motions seeking entry of the Sale Order), 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 or as Buyer may reasonably request. Sellers shall promptly provide Buyer with copies of all communications from the Bankruptcy Court relating to the motions seeking entry of the Sale Order.
(f) In the event an appeal is taken or a stay pending appeal is requested requested, from the Sale Confirmation Order, Sellers the Endo Companies shall immediately promptly notify Buyer the Buyers of such appeal or stay request and shall provide to Buyer promptly the Buyers a copy of the related notice of appeal or order of stay. Sellers The Endo Companies shall also provide Buyer the Buyers with written notice of any motion or application filed in connection with any appeal from or stay request in respect of such orderorders. Sellers The Endo Companies agree to take all action as may be reasonable and Buyer shall use their respective commercially reasonable efforts appropriate to defend against such appeal or stay request and the Endo Companies and the Buyers agree to use their commercially reasonable efforts to obtain an expedited resolution of such appealappeal or stay request; provided, that nothing herein shall preclude the parties hereto from consummating the transactions contemplated hereby, if the Confirmation Order shall have been entered and has not been stayed and the Sellers and the Buyers, in their reasonable discretion, waive in writing the condition that the Confirmation Order be a Final Order.
(g) After entry of the Sale Confirmation Order, Sellers the Endo Companies shall not take any action which is intended to, or fail to take any action the intent of which failure to act is to, result in the reversal, voiding, modification or staying of the Sale OrderConfirmation Order unless the Buyers specifically consent to such action in writing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Endo International PLC)
Bankruptcy Court Filings and Approval. (a) Not later than two (2) Business Days after the date this Agreement is executed, Seller Parent and each of the other Sellers shall use their reasonable best efforts to comply with the deadlines set forth in the Bidding Procedures or the Bidding Procedures Order, as applicable.
(b) The Parties shall consult with each other regarding pleadings that any file voluntary petitions for relief commencing a case under chapter 11 of them intends to file with the Bankruptcy Court Code in connection with, or which might reasonably affect the Bankruptcy Court’s , and file and serve one or more motions, each in form and substance reasonably acceptable to the Buyer, seeking approval of the Sale Order, including, with respect to Sellers, sharing in advance any drafts thereof for Buyer’s review and comment. Each Seller shall promptly provide Buyer and its counsel with copies of all notices, filings and orders of the Bankruptcy Court that such Seller has in its possession (or receives) pertaining to the Sale Motion, or any other order related to any of the transaction contemplated by this Agreement, but only to the extent such papers are not publicly available on the docket of the Bankruptcy Court or otherwise made available to Buyer and its counsel. No Seller shall seek any modification to the Bidding Procedures Order and the Sale Order by (together, the “Sale Motion”).
(b) Seller Parent and each of the other Sellers shall use reasonable best efforts to cause the Bankruptcy Court to enter (i) the Sale Procedures Order on or any other Governmental Authority of competent jurisdiction to which a decision relating prior to the Bankruptcy Cases has been appealeddate that is thirty (30) days after the Petition Date and (ii) the Sale Order on or prior to the date that is ninety-three (93) days after the date hereof, in each case, without which Sale Order shall approve a sale to the prior written consent of Buyer (not Successful Bidder at any Auction conducted under the Sale Procedures Order or to be unreasonably withheld)Buyers if there are no other qualified bidders.
(c) Sellers shall use their commercially reasonable efforts to obtain entry of the Sale Order and such other relief from the Bankruptcy Court as may be necessary or appropriate in connection with this Agreement and the consummation of the transactions contemplated by this Agreement. Buyer agrees The Buyers agree that it they will promptly take such actions as are reasonably requested by Sellers to assist in obtaining entry of the Sale Procedures Order and the Sale Order and, consistent with Section 8.3 5.11 below, a finding by the Bankruptcy Court of adequate assurance of future performance by Buyer.
(d) The Sellers and Buyer the Buyers acknowledge that this Agreement and the sale of the Acquired Transferred Assets and the assumption and assignment of the Assigned Agreements Assumed Liabilities are subject to Bankruptcy Court approval. The Sellers and Buyer the Buyers acknowledge that (i) to obtain such approval, (i) the Sellers must demonstrate that they have taken reasonable steps to obtain the highest highest, best, or otherwise best financially superior offer possible for the Acquired Transferred Assets and otherwise have complied with the Bankruptcy Code requirements for approval of the sale of the Acquired Assets to Buyer and (ii) Buyer the Buyers must provide adequate assurance of future performance under with respect to the Assigned Agreements to be assigned by Sellers, and Buyer hereby agrees to provide all appropriate assurances thereof necessary in order to obtain the foregoing approvalsTransferred Contracts.
(e) Sellers shall give all notices required to be given by applicable Law, to all Persons entitled thereto, of all motions (including From the motions seeking date hereof until the entry of the Sale Procedures Order, the Buyers agree and acknowledge that the Sellers and their Affiliates shall be permitted, and shall be permitted to cause their Representatives, to initiate contact with, solicit or encourage submission of any inquiries, proposals or offers by, respond to any unsolicited inquiries, proposals or offers submitted by, and enter into any discussions or negotiations regarding any of the foregoing with, any Person (in addition to the Buyers and its Affiliates, agents and Representatives) relating to a Competing Bid; provided that Sellers shall (i) promptly (and in any event within one (1) day) notify Buyers of any Competing Bid, or any indication that any Person is considering making, a Competing Bid (ii) promptly (and in any event within one (1) day) notify Buyers of the identity of any Person making a Competing Bid (or considering making a Competing Bid) and provide a copy of any Competing Bid (or, where no such copy is available, a reasonably detailed description of such Competing Bid), (iii) subject to applicable Law, keep Buyers informed on a current basis of the status of any Competing Bid (or the consideration of any Competing Bid) and any developments, discussions and negotiations related thereto (including by updating any copies of a Competing Bid provided to Buyers), (iv) provide reasonable updates regarding the Sellers’, and their Affiliates and Representatives’, efforts in soliciting and encouraging submission of any Competing Bid and (v) ensure Buyers have been provided all information provided to such Persons or its Representatives making a Competing Bid.
(f) The Buyers agree and acknowledge that, after entry of the Sale Procedures Order, the Sellers and their Affiliates shall be permitted, and shall be permitted to cause their Representatives, to initiate contact with, solicit or encourage submission of any inquiries, proposals or offers by, respond to any unsolicited inquiries, proposals or offers submitted by, and enter into any discussions or negotiations regarding any of the foregoing with, any Person (in addition to the Buyers and its Affiliates, agents and Representatives) in accordance with the terms of the Sale Procedures Order.
(g) The Sellers shall, to the extent reasonably practicable, give Buyers advanced notice and proposed drafts of all pleadings, motions, orders, hearings other papers, hearings, and other proceedings relating to this Agreement and the transactions contemplated hereby hereby, and thereby shall provide Buyers and their counsel with a reasonably opportunity to review such additional notice as ordered by papers prior to filing with the Bankruptcy Court or as Buyer may reasonably request. Sellers shall promptly provide Buyer with copies of all communications from the Bankruptcy Court relating to the motions seeking entry of the Sale OrderCourt.
(fh) The Sellers shall use reasonable best efforts to serve notices of assumption of the Transferred Contracts, including designation of Cure Claims, on all necessary parties by the twenty-eighth (28th) Business Day following the Sale Procedures Hearing.
(i) In the event an appeal is taken or a stay pending appeal is requested requested, from the Sale Order, Sellers shall immediately notify Buyer Buyers of such appeal or stay request and shall provide to Buyer Buyers promptly a copy of the related notice of appeal or order of stay. Sellers shall also provide Buyer Buyers with written notice of any motion or application filed in connection with any appeal from or stay request in respect of such orderorders. The Sellers agree to take all action as may be reasonable and Buyer shall use their respective commercially reasonable efforts appropriate to defend against such appeal or stay request and the Sellers and Buyers agree to use their reasonable efforts to obtain an expedited resolution of such appealappeal or stay request; provided that nothing herein shall preclude the parties hereto from consummating the transactions contemplated hereby, if the Sale Order shall have been entered and has not been stayed and the Buyers, in their sole and absolute discretion, waive in writing the condition that the Sale Order be a Final Order.
(gj) After entry of the Sale Order, to the extent the Buyers are the Successful Bidder at the Auction, neither the Buyers nor the Sellers shall not take any action which is intended to, or fail to take any action the intent of which failure to act is to, result in the reversal, voiding, modification or staying of the Sale Order.
Appears in 1 contract
Bankruptcy Court Filings and Approval. (a) Sellers shall use their reasonable best efforts to comply with the deadlines set forth in the Bidding Procedures or the Bidding Procedures Order, as applicable.
(b) The Parties shall consult with each other regarding pleadings that any of them intends to file with the Bankruptcy Court in connection with, or which might reasonably affect the Bankruptcy Court’s approval of the Sale Order, including, with respect to Sellers, sharing in advance any drafts thereof for Buyer’s review and comment. Each Seller shall promptly provide Buyer and its counsel with copies of all notices, filings and orders of the Bankruptcy Court that such Seller has in its possession (or receives) pertaining to the Sale Motion, or any other order related to any of the transaction contemplated by this Agreement, but only to the extent such papers are not publicly available on the docket of the Bankruptcy Court or otherwise made available to Buyer and its counsel. No Seller shall seek any modification to the Bidding Procedures Order and the Sale Order by the Bankruptcy Court or any other Governmental Authority of competent jurisdiction to which a decision relating to the Bankruptcy Cases has been appealed, in each case, without the prior written consent of Buyer (not to be unreasonably withheld).
(c) US Sellers shall use their commercially reasonable efforts to obtain entry of the Sale Order and such other relief from the Bankruptcy Court as may be necessary or appropriate in connection with this Agreement and the consummation of the transactions contemplated by this Agreement. Buyer agrees that it will promptly take such actions as are reasonably requested by US Sellers to assist in obtaining entry of the Sale Order and, consistent with Section 8.3 8.3(a) below, a finding by the Bankruptcy Court of adequate assurance of future performance by Buyer.
(b) As promptly as possible, but in no event later than two (2) Business Days following entry of the Sale Order and on notice to Persons designated by Buyer, Canadian Seller shall bring a motion seeking an Order in the Canadian Proceeding, inter alia, (i) approving this Agreement and the transactions contemplated herein, (ii) exempting the transaction from the provisions of the Bulk Sales Act (Ontario), and (iii) vesting the Canadian Assets in Buyer free and clear of all claims, liens and encumbrances (other than Permitted Encumbrances) effective upon delivery to Buyer of the Receiver’s Certificate confirming that the Purchase Price has been paid, the conditions to Closing have been satisfied or waived and the transactions contemplated in this Agreement have closed to the satisfaction of the Receiver (such order, the “Canadian Sale and Vesting Order”), which Order shall be substantially in the form attached hereto as Exhibit E, with such changes as Buyer may accept acting reasonably. Buyer agrees that it will take such actions as are reasonably requested by Sellers to assist in obtaining entry of the Canadian Sale and Vesting Order.
(c) Prior to the filing by Sellers of the applications and motions for the Canadian Orders, Sellers will (i) provide a copy thereof (including, in each case, the related forms of order and notice and supporting materials) to Buyer and its counsel, (ii) provide Buyer and its counsel a reasonable opportunity to review and comment on such document, and any amendment or supplement thereto and (iii) incorporate any reasonable comments of Buyer and its counsel into such document and any amendment or supplement thereto.
(d) Sellers and Buyer acknowledge that this Agreement and the sale of the Acquired Assets and the assumption and assignment of the Assigned Agreements are subject to Bankruptcy Court approvalapproval and approval of the Canadian Court. Sellers and Buyer acknowledge that (i) to obtain such approval, Sellers must demonstrate that they have taken reasonable steps to obtain the highest or and otherwise best offer possible for the Acquired Assets and otherwise have complied with the Bankruptcy Code requirements for approval of the sale of the Acquired Assets to Buyer and (ii) Buyer must provide adequate assurance of future performance under the Assigned Agreements to be assigned by US Sellers, and Buyer hereby agrees to provide all appropriate assurances thereof necessary in order to obtain the foregoing approvals.
(e) Sellers shall give all notices required to be given by applicable Lawappropriate notice, and provide appropriate opportunity for hearing, to all Persons entitled thereto, of all motions (including the motions seeking entry of the Sale OrderOrder and the Canadian Orders), 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 or the Canadian Court or as Buyer may reasonably request. Sellers shall promptly provide Buyer with copies of all communications from the Bankruptcy Court relating to the motions seeking entry of the Sale Order.
(f) In the event an appeal is taken or a stay pending appeal is requested requested, from the Sale OrderOrder or any of the Canadian Orders, Sellers shall immediately notify Buyer of such appeal or stay request and shall provide to Buyer promptly 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 connection with any appeal from or stay request in respect of either of such orderorders. Sellers and Buyer shall use their respective commercially reasonable efforts to defend such appeal or stay request and obtain an expedited resolution of such appeal.
(g) After entry of the Sale Order, Order and the Canadian Sale and Vesting Order Sellers shall not take any action which is intended to, or fail to take any action the intent of which failure to act is to, result in the reversal, voiding, modification or staying of the Sale Order or the Canadian Sale and Vesting Order.
(h) Notwithstanding any other provision of this Agreement to the contrary, subject to the fourth sentence of Section 2.5, at the request of Buyer, Sellers shall transfer and assign the Assigned Agreements set forth on Schedule 7.4(h) to Buyer as of the Closing Date or as soon thereafter as possible, pursuant to, inter alia, Section 365 of the Bankruptcy Code, it being agreed that such assumption and assignment may occur after the Sale Hearing and entry by the Bankruptcy Court of the Sale Order.
Appears in 1 contract
Samples: Asset Purchase Agreement (Medicis Pharmaceutical Corp)
Bankruptcy Court Filings and Approval. (a) Not later than March 3, 2019, Seller Parent and each of the other Sellers shall use their reasonable best efforts to comply with the deadlines set forth in the Bidding Procedures or the Bidding Procedures Order, as applicable.
(b) The Parties shall consult with each other regarding pleadings that any file voluntary petitions for relief commencing a case under chapter 11 of them intends to file with the Bankruptcy Court Code in connection with, or which might reasonably affect the Bankruptcy Court’s , and file and serve one or more motions, each in form and substance reasonably acceptable to the Buyer, seeking approval of (i) the Sale Order, including, DIP Credit Agreement and the related guarantees and liens contemplated to be provided with respect to Sellersthe DIP Credit Agreement on an interim and final basis, sharing in advance any drafts thereof for Buyer’s review and comment. Each Seller shall promptly provide Buyer and its counsel with copies of all notices, filings and orders of the Bankruptcy Court that such Seller has in its possession (or receivesii) pertaining to the Sale Motion, or any other order related to any of the transaction contemplated by this Agreement, but only to the extent such papers are not publicly available on the docket of the Bankruptcy Court or otherwise made available to Buyer and its counsel. No Seller shall seek any modification to the Bidding Procedures Order and the Sale Order by (the motion filed pursuant to this clause (ii), the “Sale Motion“) and (iii) the assumption of the Services Agreement (if not earlier terminated).
(b) Not later than five (5) days following the Petition Date, the Bankruptcy Court or any other Governmental Authority of competent jurisdiction to which a decision relating to shall have entered the Bankruptcy Cases has been appealed, in each case, without the prior written consent of Buyer (not to be unreasonably withheld)Interim DIP Order.
(c) Sellers shall use their commercially reasonable efforts to obtain entry of Not later than thirty-five (35) days after the Sale Order and such other relief from Petition Date, the Bankruptcy Court as may be necessary or appropriate in connection with this Agreement shall have entered the Final DIP Order and the consummation of the transactions contemplated by this Agreement. Buyer agrees that it will promptly take such actions as are reasonably requested by Sellers to assist in obtaining entry of the Sale Order and, consistent with Section 8.3 below, a finding by the Bankruptcy Court of adequate assurance of future performance by BuyerProcedures Order.
(d) Sellers and Buyer acknowledge that this Agreement and Not later than sixty (60) days after the sale of Petition Date, the Acquired Assets and Auction (if necessary) shall have been held pursuant to the assumption and assignment of the Assigned Agreements are subject to Bankruptcy Court approval. Sellers and Buyer acknowledge that (i) to obtain such approval, Sellers must demonstrate that they have taken reasonable steps to obtain the highest or otherwise best offer possible for the Acquired Assets and otherwise have complied with the Bankruptcy Code requirements for approval of the sale of the Acquired Assets to Buyer and (ii) Buyer must provide adequate assurance of future performance under the Assigned Agreements to be assigned by Sellers, and Buyer hereby agrees to provide all appropriate assurances thereof necessary in order to obtain the foregoing approvalsSale Procedures Order.
(e) Not later than seventy-five (75) days following the Petition Date, the Bankruptcy Court shall have entered the Sale Order.
(f) The Buyer agrees and acknowledges that the Sellers and their Affiliates shall be permitted, and shall be permitted to cause their Representatives, to initiate contact with, solicit or encourage submission of any inquiries, proposals or offers by, respond to any unsolicited inquiries, proposals or offers submitted by, and enter into any discussions or negotiations regarding any of the foregoing with, any Person (in addition to the Buyer and its Affiliates and Representatives) relating to a Competing Bid or a Treximet Bid; provided, that from the date of the Original Agreement until the bid deadline pursuant to the Sales Procedure Order, Sellers shall (i) promptly (and in any event within one (1) Business Day) notify the Buyer of any written Competing Bid or written Treximet Bid, (ii) promptly (and in any event within one (1) Business Day) notify the Buyer of the identity of any Person making a written Competing Bid or written Treximet Bid and provide a copy of such Competing Bid or Treximet Bid and a summary of the material unwritten terms of any Competing Bid or Treximet Bid and any material updates thereto and (iii) make available to Buyer all written due diligence information made available to the Person making such written Competing Bid or written Treximet Bid and/or its Representatives that has not been made available to Buyer (the obligations set forth in clauses (i), (ii) and (iii), the “Competing Bid Obligations“). The Buyer’s sole and exclusive remedy for any threatened or actual breach by the Sellers of their Competing Bid Obligations shall be to exercise their rights to specific performance under Section 9.15.
(g) The Sellers shall give all notices required to be given by applicable Law, to all Persons entitled thereto, the Buyer reasonable advance notice and proposed drafts of all motions (including the motions seeking entry of the Sale Order)pleadings, motions, orders, hearings notices, other papers, hearings, and other proceedings relating to this Agreement and the transactions contemplated hereby hereby, and thereby shall provide the Buyer and its counsel with a reasonable opportunity to review such additional notice as ordered by papers prior to filing with the Bankruptcy Court unless such advance notice is impossible or as Buyer may reasonably request. impracticable under the circumstances, in which case the Sellers shall promptly provide Buyer with deliver copies of all communications from such papers substantially simultaneously with the filing with the Bankruptcy Court relating to Court.
(h) The Sellers shall serve notices of assumption of the motions seeking entry Transferred Contracts, including designation of Cure Claims, in form and substance approved by the Buyer, on all necessary parties substantially concurrently with the filing of the Sale OrderMotion.
(fi) In the event an appeal is taken or a stay pending appeal is requested requested, from the Sale Order, the Sellers shall immediately notify the Buyer of such appeal or stay request and shall provide to the Buyer promptly a copy of the related notice of appeal or order of stay. The Sellers shall also provide the Buyer with written notice of any motion or application filed in connection with any appeal from or stay request in respect of such orderorders. The Sellers agree to take all action as may be reasonable and Buyer shall use their respective commercially reasonable efforts appropriate to defend against such appeal or stay request and the Sellers and the Buyer agree to use their reasonable efforts to obtain an expedited resolution of such appealappeal or stay request; provided, that nothing herein shall preclude the parties hereto from consummating the transactions contemplated hereby, if the Sale Order shall have been entered and has not been stayed and the Buyer, in its sole and absolute discretion, waives in writing the condition that the Sale Order be a Final Order.
(gj) After entry of the Sale Order, to the extent the Buyer is the Successful Bidder, the Sellers shall not take any action which is intended to, or fail to take any action the intent of which failure to act is to, result in the reversal, voiding, modification or staying of the Sale OrderOrder unless the Buyer consents to such action in writing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Pernix Therapeutics Holdings, Inc.)
Bankruptcy Court Filings and Approval. (a) Sellers shall use their reasonable best efforts to comply with the deadlines set forth in the Bidding Procedures or the Bidding Procedures Order, as applicable.
(b) The Parties shall consult with each other regarding pleadings that any of them intends to file with the Bankruptcy Court in connection with, or which might reasonably affect the Bankruptcy Court’s approval of the Sale Order, including, with respect to Sellers, sharing in advance any drafts thereof for Buyer’s review and comment. Each Seller shall promptly provide Buyer and its counsel with copies of all notices, filings and orders of the Bankruptcy Court that such Seller has in its possession (or receives) pertaining to the Sale Motion, or any other order related to any of the transaction contemplated by this Agreement, but only to the extent such papers are not publicly available on the docket of the Bankruptcy Court or otherwise made available to Buyer and its counsel. No Seller shall seek any modification to the Bidding Procedures Order and the Sale Order by the Bankruptcy Court or any other Governmental Authority of competent jurisdiction to which a decision relating to the Bankruptcy Cases has been appealed, in each case, without the prior written consent of Buyer (not to be unreasonably withheld).
(c) Sellers shall use their commercially reasonable efforts to obtain entry of the Sale Approval Order and such other relief from the Bankruptcy Court as may be necessary or appropriate in connection with this Agreement and the consummation of the transactions contemplated by this AgreementTransactions as promptly as practicable after the Effective Date. Buyer agrees that it will promptly take such actions as are reasonably requested by Sellers to assist in obtaining entry of the Sale Approval Order and, consistent with Section 8.3 below9.3, a finding by the Bankruptcy Court of adequate assurance of future performance by BuyerBuyer or the applicable Assignee in connection with any Assigned Agreement.
(db) Sellers and Buyer acknowledge that this Agreement and the sale consummation of the Acquired Assets and the assumption and assignment of the Assigned Agreements Transactions are subject to Bankruptcy Court approval. Sellers and Buyer acknowledge that (i) to obtain such approval, Sellers must demonstrate that they have taken reasonable steps to obtain the highest or otherwise best offer possible for the Potential Acquired Assets and otherwise have complied with the Bankruptcy Code requirements for approval of the sale of the Acquired Assets to Buyer and (ii) Buyer (or any applicable Assignee) must provide adequate assurance of future performance under the Assigned Agreements to be assigned by Sellers, and Buyer hereby agrees to provide all appropriate assurances thereof necessary in order such adequate assurance to obtain the foregoing approvalsextent required under the Bankruptcy Code, including but not limited to by demonstrating financial wherewithal to pay Buyer Cure Costs.
(ec) Sellers shall give all notices required to be given by applicable Law, to all Persons entitled thereto, of all motions (including the motions seeking entry of the Sale Order)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 or as Buyer may reasonably request. Sellers shall promptly provide Buyer with copies of all communications from the Bankruptcy Court relating to the motions seeking entry of the Sale Order.
(fd) In the event an appeal is taken or a stay pending appeal is requested requested, from the Sale Bid Procedures Order or the Approval Order, Sellers shall immediately as promptly as practicable notify Buyer of such appeal or stay request and shall provide to Buyer promptly 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 connection with any appeal from or stay request in respect of such order. Sellers and Buyer shall use their respective commercially reasonable efforts to defend such appeal or stay request and obtain an expedited resolution of such appeal.
(ge) After entry of the Sale Approval Order, Sellers shall not take any action which is intended to, or fail to take any action the intent of which failure to act is to, result in the reversal, voiding, modification or staying of the Sale Approval Order.
(f) Sellers shall cause any plan of reorganization or liquidation approved in the Bankruptcy Cases to permit assumption and rejection of the Sellers’ executory contracts and unexpired leases of real property through the end of the Designation Rights Period.
Appears in 1 contract
Samples: Asset Purchase Agreement
Bankruptcy Court Filings and Approval. (a) Sellers shall use their reasonable best efforts to comply with the deadlines set forth in the Bidding Procedures or the Bidding Procedures Order, as applicable.
(b) The Parties shall consult with each other regarding pleadings that any of them intends to file with the Bankruptcy Court in connection with, or which might reasonably affect the Bankruptcy Court’s approval of the Sale Order, including, with respect to Sellers, sharing in advance any drafts thereof for Buyer’s review and comment. Each Seller shall promptly provide Buyer and its counsel with copies of all notices, filings and orders of the Bankruptcy Court that such Seller has in its possession (or receives) pertaining to the Sale Motion, or any other order related to any of the transaction contemplated by this Agreement, but only to the extent such papers are not publicly available on the docket of the Bankruptcy Court or otherwise made available to Buyer and its counsel. No Seller shall seek any modification to the Bidding Procedures Order and the Sale Order by the Bankruptcy Court or any other Governmental Authority of competent jurisdiction to which a decision relating to the Bankruptcy Cases has been appealed, in each case, without the prior written consent of Buyer (not to be unreasonably withheld).
(c) Sellers shall use their commercially reasonable efforts to obtain entry of the Bidding Procedures Order and the Sale Order and such other relief from the Bankruptcy Court as may be necessary or appropriate in connection with this Agreement and the consummation of the transactions contemplated by this Agreement. Sellers shall file with the Bankruptcy Court, on or prior to the end of the second (2nd) Business Day following the later of the Filing or execution of this Agreement, the motion seeking entry of the Bidding Procedures Order and the Sale Order authorizing Sellers to enter into this Agreement and to consummate the transactions contemplated hereunder. Buyer agrees that it will promptly take such actions as are reasonably requested by Sellers to assist in obtaining entry of the Bidding Procedures Order and the Sale Order and, consistent with Section 8.3 8.3(a) below, a finding by the Bankruptcy Court of adequate assurance of future performance by Buyer.
(db) Prior to the filing by Sellers of the motion contemplated by the second sentence of Section 7.4(a), Sellers will (i) provide a copy thereof (including, in each case, the related forms of order and notice and supporting materials) to Buyer and its counsel, (ii) provide Buyer and its counsel a reasonable opportunity to review and comment on such document, and any amendment or supplement thereto, and (iii) incorporate any reasonable comments of Buyer and its counsel into such document and any amendment or supplement thereto.
(c) Sellers and Buyer acknowledge that this Agreement and the sale of the Acquired Assets and the assumption and assignment of the Assigned Agreements are subject to Bankruptcy Court approval. Sellers and Buyer acknowledge that (i) to obtain such approval, Sellers must demonstrate that they have taken reasonable steps to obtain the highest or otherwise best offer possible for the Acquired Assets and otherwise have complied with the Bankruptcy Code requirements for approval of the sale of the Acquired Assets to Buyer and (ii) Buyer must provide adequate assurance of future performance under the Assigned Agreements to be assigned by Sellers, and Buyer hereby agrees to provide all appropriate assurances thereof necessary in order to obtain the foregoing approvals.
(ed) Sellers shall give all notices required to be given by applicable Law, to all Persons entitled thereto, of all motions (including the motions seeking entry of the Bidding Procedures Order and the Sale Order), 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 or as Buyer may reasonably request. Sellers shall promptly provide Buyer with copies of all communications from the Bankruptcy Court or third parties relating to the motions seeking entry of the Bidding Procedures Order and the Sale Order.
(fe) In the event an appeal is taken or a stay pending appeal is requested requested, from the Bidding Procedures Order or the Sale Order, Sellers shall immediately notify Buyer of such appeal or stay request and shall provide to Buyer promptly 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 connection with any appeal from or stay request in respect of either of such orderorders. Sellers and Buyer shall use their respective commercially reasonable efforts to defend such appeal or stay request and obtain an expedited resolution of such appeal.
(gf) After entry of the Sale Order, to the extent Buyer is the Successful Bidder at the Auction, Sellers shall not take any action which is intended to, or fail to take any action the intent of which failure to act is to, result in the reversal, voiding, modification or staying of the Sale Order.
(g) Within three Business Days following the Filing, Sellers shall file a motion, in form and substantive satisfactory to Buyer, seeking entry of an order determining Cure Costs in connection with the Sellers’ assignment and assumption of the Assigned Agreements. The Sellers shall schedule the hearing on such motion not later than 30 days after the Filing.
Appears in 1 contract
Bankruptcy Court Filings and Approval. (a) Sellers shall use their reasonable best efforts The Endo Companies and the Buyers acknowledge that the transactions contemplated by this Agreement are subject to comply with Bankruptcy Court approval, including entry of the deadlines set forth in the Bidding Procedures or the Bidding Procedures Confirmation Order, as applicable.
(b) The Parties Prior to the Closing: (i) the Rights Offering Order (as defined in the Chapter 11 Plan) shall consult with each other regarding pleadings that have been entered and be in full force and effect; (ii) the applicable Rights Offering Documents (as defined in the Chapter 11 Plan) shall have been or shall be deemed to be executed and delivered, and any of them intends conditions precedent to file the effectiveness thereof as set forth therein shall have been satisfied or waived in accordance therewith; and (iii) all applicable payments, premiums, and fees due under the Rights Offering Documents (including the Backstop Premiums (as defined in the Chapter 11 Plan)) shall have been paid (or shall be paid contemporaneously with the Bankruptcy Court in connection with, or which might reasonably affect the Bankruptcy Court’s approval of the Sale Order, including, with respect to Sellers, sharing in advance any drafts thereof for Buyer’s review and comment. Each Seller shall promptly provide Buyer and its counsel with copies of all notices, filings and orders of the Bankruptcy Court that such Seller has in its possession (or receives) pertaining to the Sale Motion, or any other order related to any of the transaction contemplated by this Agreement, but only to the extent such papers are not publicly available on the docket of the Bankruptcy Court or otherwise made available to Buyer and its counsel. No Seller shall seek any modification to the Bidding Procedures Order and the Sale Order by the Bankruptcy Court or any other Governmental Authority of competent jurisdiction to which a decision relating to the Bankruptcy Cases has been appealed, in each case, without the prior written consent of Buyer (not to be unreasonably withheldClosing).
(c) Sellers From the date hereof until the earlier of (i) the termination of this Agreement in accordance with Article VIII and (ii) the Closing Date, the Endo Companies shall use their have used or shall use, as applicable, commercially reasonable efforts to obtain pursue the entry of the Sale Confirmation Order by the Bankruptcy Court.
(d) The Endo Companies and Buyers shall reasonably cooperate in obtaining the Bankruptcy Court’s entry of the Confirmation Order and any other Order reasonably necessary in connection with the transactions contemplated by this Agreement as promptly as reasonably practicable, including furnishing affidavits, non-confidential financial information, or other documents or information for filing with the Bankruptcy Court and making such advisors of Buyers and Endo Companies and their respective Affiliates available to testify before the Bankruptcy Court for the purposes of, among other relief things, providing adequate assurances of performance by Buyers as required under Section 365 of the Bankruptcy Code.
(e) Each of the Endo Companies and Buyers shall appear formally or informally in the Bankruptcy Court if reasonably requested by the other Party or required by the Bankruptcy Court in connection with the transactions contemplated by this Agreement and keep the other reasonably apprised of the status of material matters related to this Agreement, including, upon reasonable request promptly furnishing the other with copies of notices or other communications received by any Endo Company from the Bankruptcy Court as may be necessary or appropriate in connection any third party and/or any Governmental Authority with this Agreement and the consummation of respect to the transactions contemplated by this Agreement. Buyer agrees that it will promptly take such actions as are reasonably requested by Sellers to assist in obtaining entry of the Sale Order and, consistent with Section 8.3 below, a finding by the Bankruptcy Court of adequate assurance of future performance by Buyer.
(d) Sellers and Buyer acknowledge that this Agreement and the sale of the Acquired Assets and the assumption and assignment of the Assigned Agreements are subject to Bankruptcy Court approval. Sellers and Buyer acknowledge that (i) to obtain such approval, Sellers must demonstrate that they have taken reasonable steps to obtain the highest or otherwise best offer possible for the Acquired Assets and otherwise have complied with the Bankruptcy Code requirements for approval of the sale of the Acquired Assets to Buyer and (ii) Buyer must provide adequate assurance of future performance under the Assigned Agreements to be assigned by Sellers, and Buyer hereby agrees to provide all appropriate assurances thereof necessary in order to obtain the foregoing approvals.
(e) Sellers shall give all notices required to be given by applicable Law, to all Persons entitled thereto, of all motions (including the motions seeking entry of the Sale Order), 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 or as Buyer may reasonably request. Sellers shall promptly provide Buyer with copies of all communications from the Bankruptcy Court relating to the motions seeking entry of the Sale Order.
(f) In the event an appeal is taken or a stay pending appeal is requested requested, from the Sale Confirmation Order, Sellers the Endo Companies shall immediately promptly notify Buyer the Buyers of such appeal or stay request and shall provide to Buyer promptly the Buyers a copy of the related notice of appeal or order of stay. Sellers The Endo Companies shall also provide Buyer the Buyers with written notice of any motion or application filed in connection with any appeal from or stay request in respect of such orderorders. Sellers The Endo Companies agree to take all action as may be reasonable and Buyer shall use their respective commercially reasonable efforts appropriate to defend against such appeal or stay request and the Endo Companies and the Buyers agree to use their commercially reasonable efforts to obtain an expedited resolution of such appealappeal or stay request; provided, that nothing herein shall preclude the parties hereto from consummating the transactions contemplated hereby, if the Confirmation Order shall have been entered and has not been stayed and the Sellers and the Buyers, in their reasonable discretion, waive in writing the condition that the Confirmation Order be a Final Order.
(g) After entry of the Sale Confirmation Order, Sellers the Endo Companies shall not take any action which is intended to, or fail to take any action the intent of which failure to act is to, result in the reversal, voiding, modification or staying of the Sale OrderConfirmation Order unless the Buyers specifically consent to such action in writing.
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