Bankruptcy Court Matters. (a) This Agreement is subject to approval by the Bankruptcy Court and the consideration by Seller of higher or better competing bids (each a “Competing Bid”). From the Effective Date and until the designation of a Successful Bidder, Seller is permitted to cause Seller’s Representatives to initiate contact with, solicit, or encourage submission of any inquiries, proposals, or offers by, any Person (in addition to Buyer and Buyer’s Affiliates and Representatives) in connection with any sale or other disposition of the Purchased Assets. In addition, Seller may respond to any inquiries or offers to purchase all or any part of the Purchased Assets or equity interests in Seller and perform any and all other acts related thereto that are required under the Bankruptcy Code, the Bidding Procedures Order, or other applicable Law, including supplying information relating to the Business and the assets of Seller to prospective purchasers. (b) If Buyer is designated as the Successful Bidder, Seller will seek an order of the Bankruptcy Court pursuant to the Bidding Procedures Motion (the “Sale Order”) that (i) approves the sale of the Purchased Assets to Buyer, and authorizes Seller to proceed with the sale of the Purchased Assets to Buyer, on the terms and conditions set forth in this Agreement, (ii) includes a finding that Buyer is a good faith purchaser of the Purchased Assets within the meaning of section 363(m) of the Bankruptcy Code and is entitled to the protections of section 363(m) of the Bankruptcy Code, (iii) states that the sale of the Purchased Assets to Buyer shall be free and clear of all Encumbrances other than Permitted Encumbrances, (iv) provides that cash proceeds generated from the transactions contemplated by this Agreement shall be paid to the Lender (as defined in the DIP Order) in accordance with the terms and conditions of the DIP Order, until such time as the Aggregate Debt (as defined in the DIP Order) has been paid in full, and (v) approves Seller’s assumption and assignment to Buyer of the Purchased Assets pursuant to section 365 of the Bankruptcy Code subject to Buyer’s ability to demonstrate to the Bankruptcy Court adequate assurance of future performance under the Purchased Assets. Within one (1) Business Day of the execution of this Agreement, Buyer shall provide Seller a copy of such financial and other information supporting Buyer’s ability to comply with the requirements of adequate assurance of future performance under section 365(f)(2)(B) of the Bankruptcy Code and, if applicable, section 365(b)(3) of the Bankruptcy Code. Both Buyer’s and Seller’s obligations to consummate the transactions contemplated in this Agreement are conditioned upon the Bankruptcy Court’s entry of the Sale Order. (c) [Intentionally Omitted.] (d) Seller and Buyer agree that, in the event that Buyer is not the Successful Bidder at the Auction, and the Alternative Transaction with the Successful Bidder does not close, if and only if Buyer is the Back-Up Bidder, Buyer shall promptly consummate the transactions set forth in this Agreement upon the terms and conditions as set forth herein, including the Purchase Price as the same may be modified by Buyer at the Auction; provided, however, that Buyer’s obligation to remain as the Back-Up Bidder shall not terminate until the closing of the Alternative Transaction with the Successful Bidder. Buyer acknowledges that time is of the essence in achieving Closing and shall undertake all commercially reasonable efforts to reach Closing in a timely manner. (e) Buyer agrees that Buyer shall, and shall cause its Affiliates to, accommodate any reasonable request of Seller at no cost to Buyer in order to facilitate any sales of the assets of Seller in connection with the Bankruptcy Case, and consent to an extension of Seller’s deadline under section 365(d)(4) of the Bankruptcy Code to assume or reject the non-residential real property lease or leases for 000 Xxx Xxxxxxx Xx., 000 Xxxxxxxxxx Xxx., 000 X. Xxxxxxxxxx Xx, and 000 Xxxxxxxxxx Xxx., each in Palo Alto, California for a period of 60 days from the current deadline of September 23, 2020.
Appears in 2 contracts
Bankruptcy Court Matters. (a) This Agreement is subject No later than two (2) Business Days following the date of this Agreement, the Selling Entities shall file (x) a motion or motions (the “Motions”) and (y) supporting papers, which in the case of each of (x) and (y), shall be in form and substance reasonably acceptable to approval by Buyer, seeking (i) the Bankruptcy Court Court’s approval of this Agreement, each Selling Entity’s performance under this Agreement and procedures related to the assumption and the consideration by Seller of higher or better competing bids (each a “Competing Bid”). From the Effective Date and until the designation of a Successful Bidder, Seller is permitted to cause Seller’s Representatives to initiate contact with, solicit, or encourage submission of any inquiries, proposals, or offers by, any Person (in addition to Buyer and Buyer’s Affiliates and Representatives) in connection with any sale or other disposition assignment of the Purchased Assets. In addition, Seller may respond Assumed Agreements and the Assumed Real Property Leases pursuant to any inquiries or offers to purchase all or any part Section 365 of the Purchased Assets or equity interests in Seller and perform any and all other acts related thereto that are required under the Bankruptcy Code, and (ii) the Bidding Procedures entry of the Sale Order, or other applicable Law, including supplying information relating to the Business and the assets Selling Entities shall provide the Buyer with a copy of Seller to prospective purchaserssuch documents promptly thereof.
(b) If Buyer is designated All of the Parties shall use their respective commercially reasonable efforts to have the Sale Hearing no later than thirty (30) days following the filing of the Sale Motion and to have the Sale Order entered and to become a Final Order as soon as reasonably possible after the conclusion of the Sale Hearing. The Selling Entities shall give notice under the Bankruptcy Code of the request for the relief specified in the Motions to all Persons entitled to such notice, including all Persons that have asserted Encumbrances in the Purchased Assets, the PBGC and all non-debtor parties to the Assumed Agreements and the Assumed Real Property Leases, and other appropriate notice, including such additional notice as the Successful BidderBankruptcy Court shall direct or as the Buyer may reasonably request, and provide appropriate opportunity for hearing, to all parties entitled thereto, of all motions, orders, hearings, or other Legal Proceedings in the Bankruptcy Court relating to this Agreement or the transactions contemplated hereby. The Selling Entities shall be responsible for making all appropriate filings relating thereto with the Bankruptcy Court, which filings shall be submitted, to the extent practicable, to the Buyer prior to their filing with the Bankruptcy Court for the Buyer’s prior review, in accordance with Section 7.9(d).
(c) A list of the Assumed Agreements and Assumed Real Property Leases shall be filed as an exhibit to the Sale Motion (or, if required by the Bankruptcy Court, a motion to assume and assign the Assumed Agreements and the Assumed Real Property Leases), and shall be described in sufficient detail to provide adequate notice to the non-debtor parties to such Contracts. Upon designation or removal by the Buyer of the Assumed Agreements and the Assumed Real Property Leases in accordance with Section 2.5(b), the Seller will seek an order shall add any Assumed Agreements or Assumed Real Property Leases, respectively, to such exhibit to the Sale Motion or remove any Assumed Agreements or Assumed Real Property Leases (other than Assumed Agreements and Assumed Real Property Leases designated for assumption pursuant to Section 2.5(d)) from such exhibit, as applicable. Such exhibit shall set forth the amounts necessary to cure defaults under each Assumed Agreement and Assumed Real Property Lease shown thereon, as reasonably determined in good faith by the Seller. In cases in which the Seller is unable to establish that a default exists, the relevant cure amount shall be set at $0.00.
(d) From and after the date of this Agreement and until the effectiveness of the Plan, the Selling Entities shall deliver to Buyer, at least two (2) Business Days in advance of the Selling Entities’ filing or submission thereof, drafts of any and all material pleadings, motions, notices, statements, schedules, applications, reports and other papers to be filed or submitted in connection with this Agreement to provide Buyer and its counsel reasonable opportunity for prior review and comment, including any Tax motions, and such filings shall be acceptable to Buyer in its reasonable discretion to the extent they relate to the Purchased Assets, any Assumed Liabilities or the transactions contemplated hereby, including any of Buyer’s rights or obligations hereunder. Each Selling Entity shall promptly provide the Buyer and its counsel with copies of all notices, filings and orders of the Bankruptcy Court pursuant that such Selling Entity has in its possession (or receives) pertaining to the Bidding Procedures Motion (the “Sale Order”) that (i) approves the sale motion for approval of the Purchased Assets Sale Order or any other order related to Buyer, and authorizes Seller to proceed with the sale any of the Purchased Assets to Buyer, on the terms and conditions set forth in this Agreement, (ii) includes a finding that Buyer is a good faith purchaser of the Purchased Assets within the meaning of section 363(m) of the Bankruptcy Code and is entitled to the protections of section 363(m) of the Bankruptcy Code, (iii) states that the sale of the Purchased Assets to Buyer shall be free and clear of all Encumbrances other than Permitted Encumbrances, (iv) provides that cash proceeds generated from the transactions contemplated by this Agreement shall be paid Agreement, but only to the Lender (as defined in extent such papers are not publicly available on the DIP Order) in accordance with the terms and conditions of the DIP Order, until such time as the Aggregate Debt (as defined in the DIP Order) has been paid in full, and (v) approves Seller’s assumption and assignment to Buyer of the Purchased Assets pursuant to section 365 docket of the Bankruptcy Code Court or otherwise made available to the Buyer and its counsel.
(e) If the Sale Order or any other Orders of the Bankruptcy Court relating to this Agreement or the 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 or other such Order), subject to rights otherwise arising from this Agreement, the Selling Entities, the Acquired Subsidiaries and the Buyer shall prosecute such appeal, petition or motion and obtain an expedited resolution of any such appeal, petition or motion.
(f) Notwithstanding any other provision of this Agreement to the contrary, the Selling Entities, on behalf of themselves and on behalf of their Affiliates and Representatives, covenant and agree that they will not solicit any inquiries, proposals or offers for the Purchased Assets, the Business or any Alternative Transaction; provided that, from the date of this Agreement until the Closing, Seller may respond to, negotiate, and furnish information with respect to any unsolicited inquiry by a third party with respect to a transaction involving the Purchased Assets, the Business or any Alternative Transaction and in the event that Seller so furnishes any information, the Seller shall promptly (and in any event within two (2) Business Days) (x) notify the Buyer of any offer to enter into any Alternative Transaction and provide a copy of such offer and a summary of the material terms of any such offers and any material updates thereto and (y) make available to Buyer all written due diligence information made available to the Person making such offer for such Alternative Transaction that has not been made available to Buyer’s ability .
(g) The Selling Entities’ obligations under this Agreement and in connection with the transactions contemplated hereby are subject to demonstrate entry of and, to the extent entered, the terms of any Orders of the Bankruptcy Court (including the Sale Order). Nothing in this Agreement shall require Seller or its Affiliates to give testimony to or submit a motion to the Bankruptcy Court that is untruthful or to violate any duty of candor or other fiduciary duty to the Bankruptcy Court or its stakeholders.
(h) Buyer shall, or the applicable Buyer Designee shall, provide adequate assurance as required under the Bankruptcy Code of the future performance by Buyer or any applicable Buyer Designee of each Assumed Agreement and each Assumed Real Property Lease. Buyer agrees that it will, and will cause its Affiliates to, promptly take all actions reasonably required to assist in obtaining a Bankruptcy Court finding that there has been an adequate demonstration of adequate assurance of future performance under the Purchased AssetsAssumed Agreements and the Assumed Real Property Leases, such as furnishing affidavits, non-confidential financial information and other documents or information for filing with the Bankruptcy Court and making Buyer’s Representatives available to testify before the Bankruptcy Court. Within one (1) Business Day of Subject to the execution other terms and conditions of this Agreement, Buyer shall, or shall provide Seller a copy of such financial cause any applicable Buyer Designee to, from and other information supporting Buyer’s ability to comply with after the requirements of adequate assurance of future performance under section 365(f)(2)(BClosing Date, (i) assume all Liabilities of the Bankruptcy Code and, if applicable, section 365(b)(3Selling Entities under the Assumed Agreements and Assumed Real Property Leases and (ii) satisfy and perform all of the Bankruptcy Code. Both Buyer’s and Seller’s obligations Liabilities related to consummate the transactions contemplated in this Agreement are conditioned upon the Bankruptcy Court’s entry each of the Sale OrderAssumed Agreements and each Assumed Real Property Lease when the same are due thereunder.
(ci) [Intentionally OmittedEach of the Selling Entities covenant and agree that none of them shall seek to have any plan of reorganization confirmed prior to the date that is two hundred eleven (211) days from the Petition Date, or otherwise take any action, or fail to take any action, the purpose or effect of which would be to impair Buyer’s designation rights set forth in Section 2.5.]
(dj) Seller The Selling Entities and the Buyer agree that, in the event that Buyer is not the Successful Bidder at the Auctionagree, and the Alternative Transaction with motion to approve the Successful Bidder does not closeSale Order shall reflect the fact, if and only if Buyer is that the Back-Up Bidder, Buyer shall promptly consummate the transactions set forth in provisions of this Agreement upon the terms and conditions as set forth hereinAgreement, including Section 7.3, Section 7.9 and Section 7.10 are reasonable, were a material inducement to the Purchase Price as the same may be modified by Buyer at the Auction; provided, however, that Buyer’s obligation to remain as the Back-Up Bidder shall not terminate until the closing of the Alternative Transaction with the Successful Bidder. Buyer acknowledges that time is of the essence in achieving Closing and shall undertake all commercially reasonable efforts to reach Closing in a timely manner.
(e) Buyer agrees that Buyer shallenter into this Agreement, and shall cause its Affiliates to, accommodate any reasonable request of Seller at no cost are designed to Buyer in order to facilitate any sales of achieve the assets of Seller in connection with highest and best price for the Bankruptcy Case, and consent to an extension of Seller’s deadline under section 365(d)(4) of the Bankruptcy Code to assume or reject the non-residential real property lease or leases for 000 Xxx Xxxxxxx XxPurchased Assets., 000 Xxxxxxxxxx Xxx., 000 X. Xxxxxxxxxx Xx, and 000 Xxxxxxxxxx Xxx., each in Palo Alto, California for a period of 60 days from the current deadline of September 23, 2020.
Appears in 1 contract
Samples: Asset Purchase Agreement (Ascena Retail Group, Inc.)
Bankruptcy Court Matters.
8.1 Competing Bid and Other Matters.
(a) On or prior to July 7, 2016, Seller shall file with the Bankruptcy Court the Sale Motion seeking approval of (i) the Bidding Procedures Order in form and substance reasonably satisfactory to Purchaser, (ii) the Sale Order in form and substance reasonably satisfactory to Purchaser, and (iii) the transactions contemplated in this Agreement (subject to higher or otherwise better offers).
(b) This Agreement is Agreement, the parties’ obligations hereunder and the transactions contemplated hereby are subject to approval by of the Bankruptcy Court and the consideration by Seller of Seller’s right and ability to pursue and consider higher or otherwise better competing bids with respect to the Business and a material portion of the Acquired Assets pursuant to the Bidding Procedures Order (each a “Competing Bid”). From and after the Effective Date and date on which the Bidding Procedures Order is entered until the designation conclusion of a Successful Bidderthe Auction, Seller is permitted to to, and may cause Seller’s its Representatives to and Affiliates to, initiate contact with, solicitprovide information to, solicit or encourage submission of any inquiries, proposals, proposals or offers by, any Person (in addition to Buyer Purchaser and Buyer’s Affiliates its Affiliates, agents and Representatives) in connection with any sale or other disposition of the Purchased AssetsBusiness or a material portion of the Acquired Assets or the continuation of the Business as a reorganized, going concern, subject only to the provisions of the Bidding Procedures Order. In additionFrom and after the date on which the Bidding Procedures Order is entered until the conclusion of the Auction, Seller may shall have the responsibility and obligation to respond to any inquiries or offers to purchase all or any part of the Purchased Assets or equity interests in Seller Business, and perform any and all other acts related thereto that which are required or permitted under the Bankruptcy Code, the Bidding Procedures Order, Code or other applicable Law, including including, without limitation, supplying information relating to the Business and the assets of Seller to prospective purchasers, subject only to the provisions of the Bidding Procedures Order.
(bc) If Buyer an Auction is designated conducted, and Purchaser is not the prevailing party at the conclusion of such Auction (such prevailing party, the “Prevailing Bidder”), Purchaser may at its sole discretion agree to serve as the Successful Bidder, Seller will seek an order of the Bankruptcy Court pursuant to the Bidding Procedures Motion a back-up bidder (the “Sale OrderBack-up Bidder”) that (i) approves and keep Purchaser’s bid to consummate the sale of the Purchased Assets to Buyer, and authorizes Seller to proceed with the sale of the Purchased Assets to Buyer, transactions contemplated by this Agreement on the terms and conditions set forth in this AgreementAgreement (as the same may be improved upon in the Auction) open and irrevocable until 11:59 p.m. (prevailing Eastern time) on the date that is the earliest of (i) sixty (60) days after the date of the Sale Hearing, (ii) includes such date upon which Seller will notify the Back-up Bidder, and (iii) the date of closing of an Alternative Transaction with the Prevailing Bidder (the “Outside Back-up Date”). Following the Sale Hearing and prior to the Outside Back-up Date, if the Prevailing Bidder fails to consummate the applicable Alternative Transaction as a finding that Buyer result of a breach or failure to perform on the part of such Prevailing Bidder, the Back-up Bidder (if the Back-up Bidder is a good faith purchaser of the Purchased Assets within next highest bidder at the meaning of section 363(mAuction) will be deemed to have the new prevailing bid, and Seller will be authorized, but not required, without further Order of the Bankruptcy Code and is entitled to Court or any action on the protections of section 363(m) part of the Bankruptcy CodeBack-up Bidder, (iii) states that the sale of the Purchased Assets to Buyer shall be free and clear of all Encumbrances other than Permitted Encumbrances, (iv) provides that cash proceeds generated from consummate the transactions contemplated by this Agreement shall be paid to the Lender (as defined in the DIP Order) in accordance with on the terms and conditions of the DIP Order, until such time as the Aggregate Debt (as defined in the DIP Order) has been paid in full, and (v) approves Seller’s assumption and assignment to Buyer of the Purchased Assets pursuant to section 365 of the Bankruptcy Code subject to Buyer’s ability to demonstrate to the Bankruptcy Court adequate assurance of future performance under the Purchased Assets. Within one (1) Business Day of the execution of this Agreement, Buyer shall provide Seller a copy of such financial and other information supporting Buyer’s ability to comply with the requirements of adequate assurance of future performance under section 365(f)(2)(B) of the Bankruptcy Code and, if applicable, section 365(b)(3) of the Bankruptcy Code. Both Buyer’s and Seller’s obligations to consummate the transactions contemplated set forth in this Agreement are conditioned (as the same may be improved upon in the Bankruptcy Court’s entry of Auction) with the Sale Back-up Bidder pursuant to the procedures set forth in the Bidding Procedures Order.
(c) [Intentionally Omitted.]
(d) Seller shall promptly (i) serve true and Buyer agree that, correct copies of the Sale Motion and all related pleadings in the event that Buyer is not the Successful Bidder at the Auction, and the Alternative Transaction accordance with the Successful Bidder does not closeBidding Procedures Order, if and only if Buyer is the Back-Up Bidder, Buyer shall promptly consummate the transactions set forth in this Agreement upon the terms and conditions as set forth herein, including the Purchase Price as the same may be modified by Buyer at the Auction; provided, however, that Buyer’s obligation to remain as the Back-Up Bidder shall not terminate until the closing of the Alternative Transaction with the Successful Bidder. Buyer acknowledges that time is of the essence in achieving Closing and shall undertake all commercially reasonable efforts to reach Closing in a timely manner.
(e) Buyer agrees that Buyer shall, and shall cause its Affiliates to, accommodate any reasonable request of Seller at no cost to Buyer in order to facilitate any sales of the assets of Seller in connection with the Bankruptcy CaseCode, the Federal Rules of Bankruptcy Procedure, the Local Rules for the United States Bankruptcy Court for the District of Delaware and consent to an extension of Seller’s deadline under section 365(d)(4) any other applicable Order of the Bankruptcy Code Court and (ii) provide Purchaser with copies of all written expressions of interest, letters of intent, offers and purchase agreements with respect to assume Seller’s assets with absolutely no deletions or reject the non-residential real property lease or leases for 000 Xxx Xxxxxxx Xxalterations thereto within three (3) days after receipt thereof by Seller., 000 Xxxxxxxxxx Xxx., 000 X. Xxxxxxxxxx Xx, and 000 Xxxxxxxxxx Xxx., each in Palo Alto, California for a period of 60 days from the current deadline of September 23, 2020.
Appears in 1 contract
Samples: Asset Purchase Agreement
Bankruptcy Court Matters. (a) This Agreement is subject to approval by the Bankruptcy Court and the consideration by Seller of higher or better competing bids (each a “Competing Bid”). From the Effective Date and until the designation of a Successful Bidder, Seller is permitted to cause Seller’s Representatives to initiate contact with, solicit, or encourage submission of any inquiries, proposals, or offers by, any Person (in addition to Buyer and Buyer’s Affiliates and Representatives) in connection with any sale or other disposition of the Purchased Assets. In addition, Seller may respond to any inquiries or offers to purchase all or any part of the Purchased Assets or equity interests in Seller and perform any Buyer acknowledge that this Agreement and all other acts related thereto that are required under the Bankruptcy Code, the Bidding Procedures Order, or other applicable Law, including supplying information relating to the Business and the assets of Seller to prospective purchasers.
(b) If Buyer is designated as the Successful Bidder, Seller will seek an order of the Bankruptcy Court pursuant to the Bidding Procedures Motion (the “Sale Order”) that (i) approves the sale of the Purchased Assets are subject to BuyerBankruptcy Court approval.
(b) Seller shall use reasonable best efforts to obtain entry of the Sale Order, in form and authorizes Seller substance acceptable to proceed with Buyer in its sole and absolute discretion, approving this Agreement and the sale transactions contemplated herein, granting, among other things, that (i) the conveyance of the Purchased Assets shall be, to Buyerthe fullest extent permitted by the Bankruptcy Code, on pursuant to Sections 105, 363(b) and 363(f) of the terms Bankruptcy Code, free and conditions set forth in this Agreementclear of all Claims, Liens, Interests and Encumbrances, other than Permitted Encumbrances and Assumed Liabilities; (ii) includes a finding that all Contracts and Leases required to be assumed by Sellers and assigned to Buyer are so assumed and assigned free and clear of all Claims, Liens, Interests and Encumbrances, other than Permitted Encumbrances and Assumed Liabilities, to the fullest extent permitted by Section 365 of the Bankruptcy Code; (iii) Buyer is a good faith purchaser of deemed to have purchased the Purchased Assets within the meaning of section in good faith pursuant to Section 363(m) of the Bankruptcy Code and is entitled to that the protections provisions of section 363(m) of the Bankruptcy Code, (iii) states that the sale of the Purchased Assets to Buyer shall be free and clear of all Encumbrances other than Permitted Encumbrances, (iv) provides that cash proceeds generated from the transactions contemplated by this Agreement shall be paid to the Lender (as defined in the DIP Order) in accordance with the terms and conditions of the DIP Order, until such time as the Aggregate Debt (as defined in the DIP Order) has been paid in full, and (v) approves Seller’s assumption and assignment to Buyer of the Purchased Assets pursuant to section 365 of the Bankruptcy Code subject to Buyer’s ability to demonstrate to the Bankruptcy Court adequate assurance of future performance under the Purchased Assets. Within one (1) Business Day of the execution of this Agreement, Buyer shall provide Seller a copy of such financial and other information supporting Buyer’s ability to comply with the requirements of adequate assurance of future performance under section 365(f)(2)(B363(n) of the Bankruptcy Code andhave not been violated; (iv) Seller is authorized and directed to execute, if applicableupon request by Buyer, section 365(b)(3) one or more assignments in form, substance, and number reasonably acceptable to Buyer, evidencing the conveyance of the Bankruptcy Code. Both Purchased Assets and Assumed Liabilities to Buyer and/or its designees; and (v) a specific injunction prohibiting all creditors of Buyer and all of Buyer’s Affiliates, including but not limited to the IRS and NYS Department of Finance, from asserting against Buyer or any of its Affiliates any claims arising from debts owed by Seller and its Affiliates, including successor liability claims, and that all such obligations shall remain Seller’s obligations liability (other than those liabilities expressly assumed in connection with the Purchased Assets).
(c) From and after the date hereof, Seller shall not take any action that is intended to consummate result in, or fail to take any action the transactions contemplated in this Agreement are conditioned upon intent of which failure to act would result in, the Bankruptcy Court’s entry reversal, voiding, modification or staying of the Sale Order.
(c) [Intentionally Omitted.]
(d) Subject to its obligations as a debtor-in-possession, Seller and Buyer agree that, in the event that Buyer is not the Successful Bidder at the Auction, and the Alternative Transaction with the Successful Bidder does not close, if and only if Buyer is the Back-Up Bidder, Buyer shall promptly make any filings, take all actions and use reasonable best efforts to obtain any and all relief from the Bankruptcy Court that is necessary or appropriate to consummate the transactions set forth in contemplated by this Agreement upon the terms Agreement. Seller shall provide Buyer with drafts of any and conditions as set forth herein, including the Purchase Price as the same may all pleadings and proposed orders to be modified by Buyer at the Auction; provided, however, that Buyer’s obligation to remain as the Back-Up Bidder shall not terminate until the closing of the Alternative Transaction with the Successful Bidder. Buyer acknowledges that time is of the essence in achieving Closing and shall undertake all commercially reasonable efforts to reach Closing in a timely manner.
(e) Buyer agrees that Buyer shall, and shall cause its Affiliates to, accommodate any reasonable request of Seller at no cost to Buyer in order to facilitate any sales of the assets of Seller filed or submitted in connection with this Agreement for Buyer’s prior review and comment and shall cooperate with Buyer to make reasonable changes. In the Bankruptcy Case, and consent to an extension of Seller’s deadline under section 365(d)(4) event the entry of the Bankruptcy Code Sale Order is appealed, Seller shall diligently defend such appeal and any stay pending appeal that may be filed in connection therewith. Notwithstanding the foregoing, any resulting changes to assume this Agreement or reject any other Ancillary Agreement or any resulting changes to the non-residential real property lease or leases for 000 Xxx Xxxxxxx XxSale Order shall be subject to Buyer’s approval in its sole and absolute discretion., 000 Xxxxxxxxxx Xxx., 000 X. Xxxxxxxxxx Xx, and 000 Xxxxxxxxxx Xxx., each in Palo Alto, California for a period of 60 days from the current deadline of September 23, 2020.
Appears in 1 contract
Samples: Asset Purchase Agreement
Bankruptcy Court Matters. (a) This Agreement is subject to approval by the Bankruptcy Court and the consideration by Seller of higher or better competing bids (each a “Competing Bid”). From the Effective Date and until the designation of a Successful BidderBidder at the Auction, Seller is permitted to cause Seller’s Representatives and Affiliates to initiate contact with, solicit, or encourage submission of any inquiries, proposals, or offers by, any Person (in addition to Buyer and Buyer’s Affiliates Affiliates, agents, and Representatives) in connection with any sale or other disposition of the Purchased AssetsAssets subject to compliance with, and the limitations set forth in, the Bidding Procedures Order and this Agreement. In addition, until the designation of a Successful Bidder at the Auction, Seller may respond to any inquiries or offers to purchase all or any part of the Purchased Assets or equity interests in Seller and perform any and all other acts related thereto that are required under the Bankruptcy Code, the Bidding Procedures Order, or other applicable Law, including supplying information relating to the Business and the assets of Seller or any of its Affiliates to prospective purchasers.
(b) If Buyer is designated as the Successful Bidder, Seller shall use commercially reasonable efforts to make any filings, take all actions and obtain any and all relief from the Bankruptcy Court that is necessary or appropriate to consummate the transactions contemplated by this Agreement and the Ancillary Documents as promptly as practicable following the date hereof. Seller will in accordance with the terms of the Bid Procedures seek an order of the Bankruptcy Court pursuant to the Bidding Procedures Sale Motion consistent with the terms of this Agreement and reasonably acceptable to Buyer (the “Sale Order”) that (i) approves the sale of the Purchased Assets to Buyer, Buyer on the terms and conditions set forth in this Agreement and authorizes Seller to proceed with the sale of the Purchased Assets to Buyer, Buyer on the terms and conditions set forth in this Agreement, ; (ii) includes a specific finding that Buyer is a good faith purchaser of the Purchased Assets within the meaning of section 363(m) of the Bankruptcy Code and is entitled to the protections of section 363(m) of the Bankruptcy Code, ; (iii) states that the sale of the Purchased Assets to Buyer shall be free and clear of all Encumbrances other than Permitted Encumbrances, ; and (iv) provides that cash proceeds generated from the transactions contemplated by this Agreement shall be paid to the Lender (as defined in the DIP Order) in accordance with the terms and conditions of the DIP Order, until such time as the Aggregate Debt (as defined in the DIP Order) has been paid in full, and (v) approves Seller’s assumption and assignment to Buyer of the Purchased Assets Assigned Contracts pursuant to section 365 of the Bankruptcy Code subject to Buyer’s ability to demonstrate to the Bankruptcy Court adequate assurance of future performance under the Purchased AssetsAssigned Contracts. Within one (1) Business Day of the execution of this Agreement, Buyer shall provide Seller a copy of such financial and other information supporting as may be required by the Bankruptcy Court to demonstrate Buyer’s ability to comply with assume, or to take an assignment of, the requirements of adequate assurance of future performance under section 365(f)(2)(B) of the Bankruptcy Code and, if applicable, section 365(b)(3) of the Bankruptcy CodeAssigned Contracts. Both Buyer’s and Seller’s obligations to consummate the transactions contemplated in this Agreement are conditioned upon the Bankruptcy Court’s entry of the Sale Order.
(c) [Intentionally OmittedAfter the selection of the Successful Bidder at the Auction, neither Seller, its Affiliates, nor their respective Representatives shall solicit or negotiate any offer or proposal from any third Person with respect to an acquisition of or investment in Seller, its Affiliates or any of the Purchased Assets.]
(d) Seller and Buyer agree that, in the event that Buyer is not the Successful Bidder at the Auction, and the Alternative Transaction with the Successful Bidder does not close, if if, and only if if, Buyer is the BackNext-Up Highest Bidder, Buyer shall promptly consummate the transactions set forth in this Agreement upon the terms and subject to the conditions as set forth herein, including the Purchase Price as the same may be modified by Buyer at the Auction; provided, however, that Buyer’s obligation to remain as the Back-Up Bidder shall not terminate until the closing of the Alternative Transaction with the Successful Bidder. Buyer acknowledges that time is of the essence in achieving the Closing and shall undertake all commercially reasonable efforts to reach the Closing in a timely mannermanner subject to the terms and conditions set forth in this Agreement.
(e) Buyer agrees that Buyer shall, and shall cause its Affiliates to, accommodate any reasonable request of Seller at no cost to Buyer in order to facilitate any sales of the assets of Seller in connection with the Bankruptcy Case, and consent to an extension of Seller’s deadline under section 365(d)(4) of the Bankruptcy Code to assume or reject the non-residential real property lease or leases for 000 Xxx Xxxxxxx Xx., 000 Xxxxxxxxxx Xxx., 000 X. Xxxxxxxxxx Xx, and 000 Xxxxxxxxxx Xxx., each in Palo Alto, California for a period of 60 days from the current deadline of September 23, 2020.
Appears in 1 contract
Samples: Asset Purchase Agreement
Bankruptcy Court Matters. (a) This Agreement is subject to approval by the Bankruptcy Court and the consideration by Seller of higher or better competing bids (each a “Competing Bid”)any proposals that may lead to an Approved Alternative Transaction. From the Effective Agreement Date (and any prior time) until the designation day of a Successful Bidderthe Auction, Seller is shall be permitted to, and to cause Seller’s its Representatives to to, initiate contact with, solicit, solicit or encourage submission of any inquiries, proposals, proposals or offers bythat may lead to an Approved Alternative Transaction. Without limiting the foregoing, any Person (in addition to Buyer Seller and Buyer’s its Affiliates and Representatives) in connection with any sale or other disposition of the Purchased Assets. In addition, Seller may representatives shall be permitted to respond to any such inquiries or offers to purchase all or any part of the Purchased Assets or equity interests in Seller and perform any and all other acts related thereto that are required under the Bankruptcy Code, the Bidding Procedures Order, Code or other applicable Lawlaw to fulfill Seller’s fiduciary duties, including including, without limitation, supplying information relating to the Business and the assets of Seller Property to prospective purchasers.
(b) If Buyer Purchaser agrees that it will promptly take such actions as are reasonably requested by Seller to assist in demonstrating that Purchaser is designated as the Successful Bidder, Seller will seek an order a “good faith” purchaser under Section 363(m) of the Bankruptcy Code. In the event that the entry of the Sale Order shall be appealed, the parties hereto shall promptly defend such appeal with reasonable diligence.
(c) Seller states that Seller has filed with the Bankruptcy Court pursuant a motion (the “Sale Motion”), notices and proposed orders, to the extent amended as of the date hereof each in form and substance satisfactory to Purchaser seeking the Bankruptcy Court’s entry of (i) the Bidding Procedures Motion Order, substantially in the form of Exhibit C attached hereto and incorporated by reference herein (the “Bidding Procedures Order”), approving Seller’s solicitation of proposals that may lead to an Approved Alternative Transaction and the provisions of Section 7 regarding payment of the Break-up Fee (as defined in Section 7(a)) and (ii) the sale order, substantially in the form attached hereto as Exhibit D (the “Sale Order”) that ). Without limiting the generality of the foregoing, the Sale Order shall find and provide, among other things, that: (i) approves the sale Property sold to Purchaser pursuant to this Agreement shall be transferred to Purchaser free and clear of all Liens, with such Liens to attach to the Purchased Assets to Buyernet Sale Proceeds with the same validity, force and effect, and authorizes in the same order of priority, which such Liens now have against the Property or the proceeds, subject to any rights, claims and defenses Seller to proceed or its estate, as applicable, may possess with the sale of the Purchased Assets to Buyer, on the terms and conditions set forth in this Agreement, respect thereto; (ii) includes a finding that Buyer is a Purchaser has acted in “good faith purchaser of the Purchased Assets faith” within the meaning of section 363(m) of the Bankruptcy Code and is entitled to the protections of section Section 363(m) of the Bankruptcy Code, ; (iii) states that this Agreement was negotiated, proposed and entered into by the sale of the Purchased Assets to Buyer shall be free parties without collusion, in good faith and clear of all Encumbrances other than Permitted Encumbrances, from arm’s length bargaining positions; (iv) provides that cash proceeds generated from the transactions contemplated by Bankruptcy Court shall retain jurisdiction to resolve any controversy or claim arising out of or relating to this Agreement shall be paid to the Lender (as defined in the DIP Order) in accordance with the terms and conditions of the DIP Order, until such time as the Aggregate Debt (as defined in the DIP Order) has been paid in full, and Agreement; (v) approves Seller’s assumption this Agreement and assignment to Buyer of the Purchased Assets pursuant to section 365 of the Bankruptcy Code Transaction contemplated hereby may be specifically enforced (including, without limitation, by Purchaser) against and binding upon, and not subject to Buyer’s ability to demonstrate to the Bankruptcy Court adequate assurance rejection or avoidance by, Seller, any chapter 7 or chapter 11 trustee of future performance under the Purchased Assets. Within one Seller or any other Person; and (1vi) Business Day of the execution of this Agreement, Buyer shall provide Seller a copy of such financial and other information supporting Buyer’s ability to comply with the requirements of adequate assurance of future performance under section 365(f)(2)(B) of the Bankruptcy Code and, if applicable, section 365(b)(3) of the Bankruptcy Code. Both Buyer’s and Seller’s obligations to consummate the transactions contemplated in this Agreement are conditioned upon the Bankruptcy Court’s entry of the Sale Orderprovisions as reasonably requested by Purchaser.
(c) [Intentionally Omitted.]
(d) Seller and Buyer agree that, in the event that Buyer is not the Successful Bidder at the Auction, and the Alternative Transaction with the Successful Bidder does not close, if and only if Buyer is the Back-Up Bidder, Buyer shall promptly consummate the transactions set forth in this Agreement upon the terms and conditions as set forth herein, including the Purchase Price as the same may be modified by Buyer at the Auction; provided, however, that Buyer’s obligation to remain as the Back-Up Bidder shall not terminate until the closing of the Alternative Transaction with the Successful Bidder. Buyer acknowledges that time is of the essence in achieving Closing and shall undertake all commercially use its reasonable efforts to reach Closing cause the Bidding Procedures Order and the Sale Order to be approved by the Bankruptcy Court as soon as reasonably practicable. Seller shall serve a copy of the Sale Motion on: (i) all Persons known to assert any interest in or Lien upon the Property (including all holders of Liens against the Property as identified by the Commitment); (ii) all parties that are entitled to notice under Bankruptcy Rule 2002; (iii) the attorneys general of all states in which the Property are located; (iv) the Office of the United States Trustee; (v) all Persons that expressed to Seller an interest in purchasing the Property; (vi) any Person appearing in the Bankruptcy Proceeding and claiming a timely mannersecured interest in the Property; (vii) any Person known to the Seller and claiming a secured interest in the Property; and (viii) any and all other Persons directed by the Bankruptcy Court.
(e) Buyer agrees that Buyer shallSeller shall use its commercially reasonable efforts to provide Purchaser with copies of all motions, applications and shall cause its Affiliates to, accommodate any reasonable request of Seller at no cost to Buyer in order to facilitate any sales supporting papers prepared by or on behalf of the assets Seller (including forms of Seller in connection orders and notices to interested parties) directly relating to the Property or this Agreement at least two (2) business days prior to the filing thereof, unless the exigencies of time prevent the period from being that long, with the Bankruptcy CaseCourt so as to allow Purchaser to provide reasonable comments for incorporation into same.
(f) The Sale Order, and consent to an extension of Seller’s deadline the extent permitted under section 365(d)(4) of the Bankruptcy Code or other applicable law, shall be binding upon and shall govern the acts of all Persons, including, but not limited to, any subsequently appointed chapter 11 or chapter 7 trustee of Seller, all taxing authorities, filing agents, filing officers, title agents, title companies, recorders and/or registrars of mortgages, recorders and/or registrars of deeds, administrative agencies, governmental agencies or departments, secretaries of state, federal, state and local officials and all other persons and entities who may be required by operation of law, the duties of their office or contract, to assume accept, file register or reject otherwise record or release any documents or instruments, or who may be required to report or insure as to title or state of title in or to the non-residential real property lease Property or leases for 000 Xxx Xxxxxxx Xxany part thereof., 000 Xxxxxxxxxx Xxx., 000 X. Xxxxxxxxxx Xx, and 000 Xxxxxxxxxx Xxx., each in Palo Alto, California for a period of 60 days from the current deadline of September 23, 2020.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Bankruptcy Court Matters. (a) This Agreement Sellers shall seek entry of the Sale Order, the Bidding Procedures Order, including approval of Sellers’ payment of the Expense Reimbursement as provide herein, and any other necessary orders by the Bankruptcy Court to consummate the Closing as soon as reasonably practicable following the execution of this Agreement, including cause the Expense Reimbursement to be treated as an allowed superpriority administrative expense claim against the Sellers in the Bankruptcy Case with priority over all administrative expense claims and unsecured claims against the Sellers, including any adequate protection-related claims and any administrative expenses of the kinds specified in or ordered pursuant to Sections 105, 326, 328, 330, 331, 503(b), 506(c), 507(a), 507(b), 546(c), 726, and 1114 of the Bankruptcy Code, to the extent permitted by applicable law, but subject to the Carve Out (as defined in the Interim Cash Collateral Order). Buyer and Sellers understand and agree that the transaction is subject to approval by the Bankruptcy Court and the consideration Court. Buyer agrees that it will promptly take such actions as are reasonably requested by Seller of higher or better competing bids (each a “Competing Bid”). From the Effective Date and until the designation of a Successful Bidder, Seller is permitted Sellers to cause Seller’s Representatives to initiate contact with, solicit, or encourage submission of any inquiries, proposals, or offers by, any Person (assist in addition to Buyer and Buyer’s Affiliates and Representatives) in connection with any sale or other disposition obtaining entry of the Purchased Assets. In addition, Seller may respond to any inquiries or offers to purchase all or any part of the Purchased Assets or equity interests in Seller Sale Order and perform any and all other acts related thereto that are required under the Bankruptcy Code, the Bidding Procedures Order, including a finding of adequate assurance of future performance by Buyer, including by furnishing affidavits or other applicable Law, including supplying documents or information relating to the Business and the assets of Seller to prospective purchasers.
(b) If Buyer is designated as the Successful Bidder, Seller will seek an order of for filing with the Bankruptcy Court pursuant to for the Bidding Procedures Motion (the “Sale Order”) that (i) approves the sale purposes, among others, of the Purchased Assets to Buyer, providing necessary assurances of performance by Buyer under this Agreement and authorizes Seller to proceed with the sale of the Purchased Assets to Buyer, on the terms and conditions set forth in this Agreement, (ii) includes a finding demonstrating that Buyer is a “good faith faith” purchaser of the Purchased Assets within the meaning of section 363(m) of the Bankruptcy Code and is entitled to the protections of under section 363(m) of the Bankruptcy Code, (iii) states that . In the sale of event the Purchased Assets to Buyer shall be free and clear of all Encumbrances other than Permitted Encumbrances, (iv) provides that cash proceeds generated from the transactions contemplated by this Agreement shall be paid to the Lender (as defined in the DIP Order) in accordance with the terms and conditions of the DIP Order, until such time as the Aggregate Debt (as defined in the DIP Order) has been paid in full, and (v) approves Seller’s assumption and assignment to Buyer of the Purchased Assets pursuant to section 365 of the Bankruptcy Code subject to Buyer’s ability to demonstrate to the Bankruptcy Court adequate assurance of future performance under the Purchased Assets. Within one (1) Business Day of the execution of this Agreement, Buyer shall provide Seller a copy of such financial and other information supporting Buyer’s ability to comply with the requirements of adequate assurance of future performance under section 365(f)(2)(B) of the Bankruptcy Code and, if applicable, section 365(b)(3) of the Bankruptcy Code. Both Buyer’s and Seller’s obligations to consummate the transactions contemplated in this Agreement are conditioned upon the Bankruptcy Court’s entry of the Sale OrderOrder or the Bidding Procedures Order shall be appealed, Sellers shall use commercially reasonable efforts to defend such appeal.
(b) Sellers shall file such motions or pleadings as may be appropriate or necessary to: (A) assume and assign the Transferred Contracts and Assumed Leases and (B) subject to the consent of the Buyer, determine the amount of the Cure Costs; provided that nothing herein shall preclude Sellers from filing such motions to reject any Contracts or Leases that are not listed on Schedule 2.6(b) or that have been designated for rejection by Buyer.
(c) [Intentionally Omitted.]
(d) Seller Sellers shall promptly serve true and Buyer agree that, correct copies of all applicable pleadings and notices in the event that Buyer is not the Successful Bidder at the Auction, and the Alternative Transaction accordance with the Successful Bidder does not closeBidding Procedures Order, if and only if Buyer is the Back-Up Bidder, Buyer shall promptly consummate the transactions set forth in this Agreement upon the terms and conditions as set forth herein, including the Purchase Price as the same may be modified by Buyer at the Auction; provided, however, that Buyer’s obligation to remain as the Back-Up Bidder shall not terminate until the closing of the Alternative Transaction with the Successful Bidder. Buyer acknowledges that time is of the essence in achieving Closing and shall undertake all commercially reasonable efforts to reach Closing in a timely manner.
(e) Buyer agrees that Buyer shall, and shall cause its Affiliates to, accommodate any reasonable request of Seller at no cost to Buyer in order to facilitate any sales of the assets of Seller in connection with the Bankruptcy CaseCode, the Bankruptcy Rules and consent to an extension of Seller’s deadline under section 365(d)(4) any other applicable order of the Bankruptcy Code to assume or reject the non-residential real property lease or leases for 000 Xxx Xxxxxxx XxCourt., 000 Xxxxxxxxxx Xxx., 000 X. Xxxxxxxxxx Xx, and 000 Xxxxxxxxxx Xxx., each in Palo Alto, California for a period of 60 days from the current deadline of September 23, 2020.
Appears in 1 contract
Samples: Asset Purchase Agreement (Christopher & Banks Corp)
Bankruptcy Court Matters. (a) This Agreement Sellers shall seek entry of the Sale Order, the Bidding Procedures Order, and any other necessary orders by the Bankruptcy Court to consummate the Closing as soon as reasonably practicable following the execution of this Agreement. Buyer and Sellers understand and agree that the transaction is subject to approval by the Bankruptcy Court and the consideration Court. Buyer agrees that it will promptly take such actions as are reasonably requested by Seller of higher or better competing bids (each a “Competing Bid”). From the Effective Date and until the designation of a Successful Bidder, Seller is permitted Sellers to cause Seller’s Representatives to initiate contact with, solicit, or encourage submission of any inquiries, proposals, or offers by, any Person (assist in addition to Buyer and Buyer’s Affiliates and Representatives) in connection with any sale or other disposition obtaining entry of the Purchased Assets. In addition, Seller may respond to any inquiries or offers to purchase all or any part of the Purchased Assets or equity interests in Seller Sale Order and perform any and all other acts related thereto that are required under the Bankruptcy Code, the Bidding Procedures Order, including a finding of adequate assurance of future performance by Buyer, including by furnishing affidavits or other applicable Law, including supplying documents or information relating to the Business and the assets of Seller to prospective purchasers.
(b) If Buyer is designated as the Successful Bidder, Seller will seek an order of for filing with the Bankruptcy Court pursuant to for the Bidding Procedures Motion (the “Sale Order”) that (i) approves the sale purposes, among others, of the Purchased Assets to Buyer, providing necessary assurances of performance by Buyer under this Agreement and authorizes Seller to proceed with the sale of the Purchased Assets to Buyer, on the terms and conditions set forth in this Agreement, (ii) includes a finding demonstrating that Buyer is a “good faith faith” purchaser of the Purchased Assets within the meaning of section 363(m) of the Bankruptcy Code and is entitled to the protections of under section 363(m) of the Bankruptcy Code, (iii) states that . In the sale of event the Purchased Assets to Buyer shall be free and clear of all Encumbrances other than Permitted Encumbrances, (iv) provides that cash proceeds generated from the transactions contemplated by this Agreement shall be paid to the Lender (as defined in the DIP Order) in accordance with the terms and conditions of the DIP Order, until such time as the Aggregate Debt (as defined in the DIP Order) has been paid in full, and (v) approves Seller’s assumption and assignment to Buyer of the Purchased Assets pursuant to section 365 of the Bankruptcy Code subject to Buyer’s ability to demonstrate to the Bankruptcy Court adequate assurance of future performance under the Purchased Assets. Within one (1) Business Day of the execution of this Agreement, Buyer shall provide Seller a copy of such financial and other information supporting Buyer’s ability to comply with the requirements of adequate assurance of future performance under section 365(f)(2)(B) of the Bankruptcy Code and, if applicable, section 365(b)(3) of the Bankruptcy Code. Both Buyer’s and Seller’s obligations to consummate the transactions contemplated in this Agreement are conditioned upon the Bankruptcy Court’s entry of the Sale OrderOrder or the Bidding Procedures Order shall be appealed, Sellers shall use commercially reasonable efforts to defend such appeal.
(b) Sellers shall file such motions or pleadings as may be appropriate or necessary to: (A) assume and assign the Transferred Contracts and Assumed Leases and (B) subject to the consent of the Buyer, determine the amount of the Cure Costs; provided that nothing herein shall preclude Sellers from filing such motions to reject any Contracts or Leases that are not listed on Schedule 2.6(b) or that have been designated for rejection by Buyer.
(c) [Intentionally OmittedSellers shall promptly serve true and correct copies of all applicable pleadings and notices in accordance with the Bidding Procedures Order, the Bankruptcy Code, the Bankruptcy Rules and any other applicable order of the Bankruptcy Court.]
(d) Seller Sellers acknowledge and agree that Buyer agree thathas expended considerable time and expense in connection with this Agreement, and the negotiation thereof, and conducting diligence regarding the E-Commerce Business and the Sellers’ assets, and that the entry into this Agreement provides value to Sellers’ chapter 11 estates by, among other things, inducing other parties to submit higher or better offers for the Acquired Assets. In consideration therefor, the Bidding Procedures Order shall provide for the payment of a cash break-up fee in an amount equal to three percent (3%) of the amount of the unadjusted Closing Cash Payment (the “Break-up Fee”) in the event that Buyer is not Seller enters into an Alternative Transaction. Payments for the Successful Bidder at Break-up Fee and Expense Reimbursement will be paid by the Auction, and the Alternative Transaction with the Successful Bidder does not close, if and only if Buyer is the Back-Up Bidder, Buyer shall promptly consummate the transactions Sellers as set forth in this Agreement upon the terms and conditions as set forth herein, including the Purchase Price as the same may be modified by Buyer at the Auction; provided, however, that Buyer’s obligation to remain as the Back-Up Bidder shall not terminate until the closing of the Alternative Transaction with the Successful Bidder. Buyer acknowledges that time is of the essence in achieving Closing and shall undertake all commercially reasonable efforts to reach Closing in a timely mannerBidding Procedures Order.
(e) Buyer agrees that Buyer shall, and shall cause its Affiliates to, accommodate any reasonable request of Seller at no cost to Buyer in order to facilitate any sales of the assets of Seller in connection with the Bankruptcy Case, and consent to an extension of Seller’s deadline under section 365(d)(4) of the Bankruptcy Code to assume or reject the non-residential real property lease or leases for 000 Xxx Xxxxxxx Xx., 000 Xxxxxxxxxx Xxx., 000 X. Xxxxxxxxxx Xx, and 000 Xxxxxxxxxx Xxx., each in Palo Alto, California for a period of 60 days from the current deadline of September 23, 2020.
Appears in 1 contract
Bankruptcy Court Matters. (a) This Agreement Sellers shall seek entry of the Sale Order, the Bidding Procedures Order, and any other necessary orders by the Bankruptcy Court to consummate the Closing as soon as reasonably practicable following the execution of this Agreement. Buyer and Sellers understand and agree that the transaction is subject to approval by the Bankruptcy Court and the consideration Court. Buyer agrees that it will promptly take such actions as are reasonably requested by Seller of higher or better competing bids (each a “Competing Bid”). From the Effective Date and until the designation of a Successful Bidder, Seller is permitted Sellers to cause Seller’s Representatives to initiate contact with, solicit, or encourage submission of any inquiries, proposals, or offers by, any Person (assist in addition to Buyer and Buyer’s Affiliates and Representatives) in connection with any sale or other disposition obtaining entry of the Purchased Assets. In addition, Seller may respond to any inquiries or offers to purchase all or any part of the Purchased Assets or equity interests in Seller Sale Order and perform any and all other acts related thereto that are required under the Bankruptcy Code, the Bidding Procedures Order, including a finding of adequate assurance of future performance by Buyer, including by furnishing affidavits or other applicable Law, including supplying documents or information relating to the Business and the assets of Seller to prospective purchasers.
(b) If Buyer is designated as the Successful Bidder, Seller will seek an order of for filing with the Bankruptcy Court pursuant to for the Bidding Procedures Motion (the “Sale Order”) that (i) approves the sale purposes, among others, of the Purchased Assets to Buyer, providing necessary assurances of performance by Buyer under this Agreement and authorizes Seller to proceed with the sale of the Purchased Assets to Buyer, on the terms and conditions set forth in this Agreement, (ii) includes a finding demonstrating that Buyer is a “good faith faith” purchaser of the Purchased Assets within the meaning of section 363(m) of the Bankruptcy Code and is entitled to the protections of under section 363(m) of the Bankruptcy Code, (iii) states that . In the sale of event the Purchased Assets to Buyer shall be free and clear of all Encumbrances other than Permitted Encumbrances, (iv) provides that cash proceeds generated from the transactions contemplated by this Agreement shall be paid to the Lender (as defined in the DIP Order) in accordance with the terms and conditions of the DIP Order, until such time as the Aggregate Debt (as defined in the DIP Order) has been paid in full, and (v) approves Seller’s assumption and assignment to Buyer of the Purchased Assets pursuant to section 365 of the Bankruptcy Code subject to Buyer’s ability to demonstrate to the Bankruptcy Court adequate assurance of future performance under the Purchased Assets. Within one (1) Business Day of the execution of this Agreement, Buyer shall provide Seller a copy of such financial and other information supporting Buyer’s ability to comply with the requirements of adequate assurance of future performance under section 365(f)(2)(B) of the Bankruptcy Code and, if applicable, section 365(b)(3) of the Bankruptcy Code. Both Buyer’s and Seller’s obligations to consummate the transactions contemplated in this Agreement are conditioned upon the Bankruptcy Court’s entry of the Sale OrderOrder or the Bidding Procedures Order shall be appealed, Sellers shall use commercially reasonable efforts to defend such appeal.
(b) Sellers shall file such motions or pleadings as may be appropriate or necessary to: (A) assume and assign the Transferred Contracts and Assumed Leases and (B) subject to the consent of the Buyer, determine the amount of the Cure Costs; provided that nothing herein shall preclude Sellers from filing such motions to reject any Contracts or Leases that are not listed on Schedule 2.6(b) or that have been designated for rejection by Buyer.
(c) [Intentionally Omitted.]
(d) Seller Sellers shall promptly serve true and Buyer agree that, correct copies of all applicable pleadings and notices in the event that Buyer is not the Successful Bidder at the Auction, and the Alternative Transaction accordance with the Successful Bidder does not closeBidding Procedures Order, if and only if Buyer is the Back-Up Bidder, Buyer shall promptly consummate the transactions set forth in this Agreement upon the terms and conditions as set forth herein, including the Purchase Price as the same may be modified by Buyer at the Auction; provided, however, that Buyer’s obligation to remain as the Back-Up Bidder shall not terminate until the closing of the Alternative Transaction with the Successful Bidder. Buyer acknowledges that time is of the essence in achieving Closing and shall undertake all commercially reasonable efforts to reach Closing in a timely manner.
(e) Buyer agrees that Buyer shall, and shall cause its Affiliates to, accommodate any reasonable request of Seller at no cost to Buyer in order to facilitate any sales of the assets of Seller in connection with the Bankruptcy CaseCode, the Bankruptcy Rules and consent to an extension of Seller’s deadline under section 365(d)(4) any other applicable order of the Bankruptcy Code to assume or reject the non-residential real property lease or leases for 000 Xxx Xxxxxxx XxCourt., 000 Xxxxxxxxxx Xxx., 000 X. Xxxxxxxxxx Xx, and 000 Xxxxxxxxxx Xxx., each in Palo Alto, California for a period of 60 days from the current deadline of September 23, 2020.
Appears in 1 contract
Bankruptcy Court Matters. (a) This Buyer and Sellers acknowledge that this Agreement is and the Transactions contemplated hereby are subject to the Bidding Procedures and approval by the Bankruptcy Court and, as applicable, entry of the Bidding Procedures Order and Sale Order. In the event of any discrepancy between this Agreement and the consideration by Seller of Bidding Procedures Order and the Sale Order, the Bidding Procedures Order and Sale Order shall govern.
(b) This Agreement and the Transactions are subject to Sellers’ right and ability to consider higher or and better competing bids (each a “Competing Bid”)with respect to the Acquired Assets pursuant to the Bidding Procedures Order. From Sellers shall conduct any Auction process in accordance with the Effective Date Bidding Procedures and until shall not amend, waive, modify or supplement the designation Bidding Procedures in any material respect except as provided in the Bidding Procedures Order or any other Order of a Successful Bidderthe Bankruptcy Court. Following completion of any Auction, Seller if Buyer is permitted to cause Seller’s Representatives to the successful bidder, neither Sellers nor their agents shall initiate contact with, solicit, or encourage submission of of, or respond to any inquiries, proposalsproposals or offers by any Person in connection with the sale or disposition of the Acquired Assets.
(c) Subject to Sellers’ obligations to comply with any order of the Bankruptcy Court, Sellers and Buyer will promptly make all filings, take all actions and use commercially reasonable efforts to obtain any and all other approvals and orders necessary or appropriate for consummation of the Transactions. Sellers shall promptly provide Buyer with drafts of all documents, motions, orders, filings or pleadings that Sellers propose to file with the Bankruptcy Court which relate to this Agreement or the Transactions and will provide Buyer with reasonable opportunity to review such filings. Sellers will also promptly provide Buyer with written notice and copies of any other or further notice of appeal, motion, or offers by, any Person (in addition to Buyer and Buyer’s Affiliates and Representatives) application filed in connection with any sale appeal from or other disposition application for reconsideration of, any of such orders and any related briefs.
(d) Sellers shall comply with the following timeline:
(i) On the Petition Date, Sellers shall file the Bidding Procedures Motion;
(ii) No later than May 10, 2022, Sellers shall obtain entry of the Purchased Assets. In addition, Seller Bidding Procedures Order;
(iii) Sellers shall promptly serve on all counterparties to all of its Contracts and Leases a notice specifically stating that Sellers are or may respond to any inquiries or offers to purchase all or any part be seeking the assumption and assignment of such Contracts and Leases and shall notify such counterparties of the Purchased Assets or equity interests deadline for objecting to the Cure Costs, which deadline shall be not less than three (3) Business Days prior to the Sale Hearing;
(iv) June 3, 2022, shall be the deadline for submission of all qualified bids as set forth in Seller and perform any and all other acts related thereto that are required under the Bidding Procedures;
(v) No later than June 8, 2022, the Auction (if necessary) shall have been held pursuant to the Bidding Procedures Order;
(vi) No later than June 16, 2022, the Bankruptcy CodeCourt shall have entered the Sale Order; and
(vii) No later than the Outside Date, the Closing shall have occurred.
(e) From and after the date hereof, Sellers shall not take any action that is intended to result in, or fail to take any action the intent of which failure to act would result in, the reversal, voiding, modification or staying of the Bidding Procedures Order or, if Buyer is the Successful Bidder at the Auction, the Sale Order. Buyer has not colluded in connection with its offer or negotiation of this Agreement. From and after the date hereof, Buyer shall not take any action that is intended to result in, or fail to take any action the intent of which failure to act would result in, the reversal, voiding, modification or staying of the Bidding Procedures Order, or other applicable Lawif Buyer is the Successful Bidder at the Auction, including supplying information relating to the Business and Sale Order or consummation of the assets of Seller to prospective purchasersTransactions.
(bf) If Buyer is designated agrees that it will promptly take such actions as are reasonably requested by Sellers to assist in obtaining entry of the Successful BidderSale Order, Seller will seek an order of including furnishing affidavits or other documents or information for filing with the Bankruptcy Court pursuant to for the Bidding Procedures Motion (the “Sale Order”) that (i) approves the sale purposes, among others, of the Purchased Assets to Buyer, and authorizes Seller to proceed with the sale of the Purchased Assets to Buyer, on the terms and conditions set forth in this Agreement, (ii) includes a finding demonstrating that Buyer is a “good faith faith” purchaser of the Purchased Assets within the meaning of section 363(m) of the Bankruptcy Code and is entitled to the protections of under section 363(m) of the Bankruptcy Code; provided, (iii) states that the sale of the Purchased Assets however, in no event shall Buyer or Sellers be required to Buyer shall be free and clear of all Encumbrances other than Permitted Encumbrances, (iv) provides that cash proceeds generated from the transactions contemplated by this Agreement shall be paid agree to the Lender (as defined in the DIP Order) in accordance with the terms and conditions of the DIP Order, until such time as the Aggregate Debt (as defined in the DIP Order) has been paid in full, and (v) approves Seller’s assumption and assignment to Buyer of the Purchased Assets pursuant to section 365 of the Bankruptcy Code subject to Buyer’s ability to demonstrate to the Bankruptcy Court adequate assurance of future performance under the Purchased Assets. Within one (1) Business Day of the execution any amendment of this Agreement.
(g) Sellers further covenant and agree that, Buyer shall provide Seller a copy of such financial and other information supporting Buyer’s ability to comply with after the requirements of adequate assurance of future performance under section 365(f)(2)(B) of the Bankruptcy Code and, if applicable, section 365(b)(3) of the Bankruptcy Code. Both Buyer’s and Seller’s obligations to consummate the transactions contemplated in this Agreement are conditioned upon the Bankruptcy Court’s entry of the Sale Order, the terms of any reorganization or liquidation plan Sellers submit to the Bankruptcy Court, or any other court for confirmation or sanction, shall not be intended to (or reasonably likely to) supersede, abrogate, nullify or restrict the terms of this Agreement in any material respect, or prevent the consummation or performance of the Transactions.
(ch) [Intentionally Omitted.]
(d) Seller If an Auction is conducted, and Buyer agree that, in the event that Buyer is not the Successful Bidder for the Acquired Assets, Buyer shall, in accordance with and subject to the Bidding Procedures, be required to serve as the back-up bidder if Buyer is the next highest or otherwise best bidder for the Acquired Assets at the Auction, and Auction (the Alternative Transaction with party that is the next highest or otherwise best bidder at the Auction after the Successful Bidder does not closeBidder, if and only the “Back-Up Bidder”) and, if Buyer is the Back-Up Bidder, Buyer shall promptly shall, notwithstanding Section 8.1(b)(ii), be required to keep its bid to consummate the transactions Transactions on the terms and conditions set forth in this Agreement upon the terms and conditions as set forth herein, including the Purchase Price (as the same may be modified improved upon by Buyer at in the Auction; provided) open and irrevocable until the first to occur of the Outside Date or the date this Agreement is otherwise terminated pursuant to Article 8. Following the Auction, howeverif the Successful Bidder fails to consummate the applicable Alternative Transaction as a result of a breach or failure to perform on the part of such Successful Bidder, that then Buyer’s obligation to remain as , if Buyer is the Back-Up Bidder shall not terminate until Bidder, will be deemed to have the closing of new prevailing bid, and Sellers may seek authority to consummate the Alternative Transaction Transactions on the terms and conditions set forth in this Agreement (as the same may be improved upon by Buyer in the Auction) with the Successful Back-Up Bidder. Buyer acknowledges that time is of the essence in achieving Closing and shall undertake all commercially reasonable efforts to reach Closing in a timely manner.
(ei) In consideration for Buyer agrees that Buyer shallhaving expended considerable time and expense in connection with this Agreement, the Transactions, the negotiation of this Agreement, and shall cause its Affiliates to, accommodate any reasonable request of Seller at no cost to Buyer in order to facilitate any sales the identification and quantification of the assets and Liabilities of Seller Sellers, upon the consummation of any Alternative Transaction following any such termination or as otherwise specified in connection with Section 8.2, Buyer shall be deemed to have earned the Break-Up Fee and Expense Reimbursement, which shall be paid in cash, by wire transfer of immediately available funds to an account designated by Buyer by Sellers, without further order of the Bankruptcy CaseCourt. The Break-Up Fee and Expense Reimbursement, as well as Sellers’ obligations to pay any other amounts to Buyer arising under this Agreement, shall be a superpriority administrative expense obligation under Section 503(b) and consent to an extension of Seller’s deadline under section 365(d)(4507(a)(2) of the Bankruptcy Code with priority over all other administrative expenses specified in section 503(b) of the Bankruptcy Code except for fees and expenses of Persons retained by the Sellers pursuant to assume sections 327 or reject 328 of the nonBankruptcy Code. Sellers hereby acknowledge that the obligation to pay the Break-residential real property lease or leases for 000 Xxx Xxxxxxx Xx.Up Fee and Expense Reimbursement (to the extent due hereunder) shall survive the termination of this Agreement and shall have administrative expense status against Sellers and their estate. The Parties acknowledge and agree that (1) the Parties have expressly negotiated the provisions of this Section 6.7(i), 000 Xxxxxxxxxx Xxx., 000 X. Xxxxxxxxxx Xx(2) the payment of the Break-Up Fee and Expense Reimbursement are integral parts of this Agreement, and 000 Xxxxxxxxxx Xxx(3) in the absence of Sellers’ obligations to make these payments, Buyer would not have entered into this Agreement., each in Palo Alto, California for a period of 60 days from the current deadline of September 23, 2020.
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