Bankruptcy Covenants. 6.1.1 Immediately after the execution of this Agreement, Seller shall: 6.1.1.1 continue to operate its business from and after the commencement of the Chapter 11 Case; 6.1.1.2 file a motion, pursuant to 11 U.S.C. Sections 105, 363, and 365 to approve the sale of the Assets to Buyer pursuant to this Agreement, including the overbidding procedures in Section 6.2 and break-up fee in Section 6.3 (the "Approval Motion"); 6.1.1.3 file a motion (the "Cash Collateral Motion") for emergency determination for approval of and authorizing Seller, as borrower, to use cash collateral, such motion in form and substance reasonably acceptable to Buyer. Seller shall use commercially reasonable efforts to obtain an order (the "Cash Collateral Order") within 10 days of the date of this Agreement and a final order within 30 days of the date of this Agreement, and approval of the Approval Motion (the "Approval Order") within 45 days of the date of this Agreement, which orders shall each be in form and substance reasonably acceptable to Buyer, provided that the Approval Order shall be in a form substantially in conformity with the form of order attached as Schedule 6.1.1.3 and the Cash Collateral Order shall, among other customary terms and provisions, be in form and substance acceptable to Buyer, with only such changes to such orders as shall be agreed to by all of the parties in writing. 6.1.2 Seller shall promptly provide Buyer with drafts of all documents, motions, orders, filings or pleadings that Seller proposes to file with the Bankruptcy Court which relate to the consummation or approval of this Agreement, the Cash Collateral Motion or any other provision of this Agreement, and will provide Buyer with reasonable opportunity to review and approve such proposed filings as reasonably practical. Seller shall also promptly (within 24 hours) provide Buyer with facsimile copies of all pleadings received by or served by or upon Seller in connection with its Bankruptcy Case, which have not otherwise been served on Buyer. 6.1.3 Seller shall use commercially reasonable efforts to obtain, at its sole cost and expense, the entry of a final order authorizing Seller to assign the Franchise Agreements, Developer Agreements, Management Agreements, Kodak Supply Agreement, Agfa Supply Agreement, Trebla Supply Agreement, Leases and Assumed Contracts to Buyer (the "Assignment Order"). Except for Buyer's right to assume payments due from Seller under the Franchise Agreements, Developer Agreements, Kodak Supply Agreement, Agfa Supply Agreement, Trebla Supply Agreement and Assumed Contracts in exchange for a credit toward the Purchase Price payment as provided in Section 5.3 of this Agreement, Seller shall be responsible for the payment, at or prior to Closing of any amounts necessary to cure any defaults which exist at Closing under the Franchise Agreements, Developer Agreements, Management Agreements, Kodak Supply Agreement, Agfa Supply Agreement, Trebla Supply Agreement and Assumed Contracts. Notwithstanding the foregoing, if one or more parties to any non-supply related executory contracts asserts a claim or files an objection to Seller's assumption and assignment of their respective contract(s) to Buyer based on a claim or claims which in the aggregate exceed $50,000, which are determined to be valid after notice and hearing and which Seller is unwilling to cure, then the parties shall proceed to Closing without the affected agreement(s) with an abatement to the Purchase Price equal to the percentage reduction in actual collections over the previous 12 months, as a result of the loss of the affected agreements. For example, if the affected agreements represent 2% of Seller's actual collections during the 12 months immediately preceding Closing, then Buyer would be entitled to a 2% reduction in the Purchase Price. If the claims exceed $200,000, the Seller may, at its sole option, terminate this Agreement and refund the Deposit to Buyer, without further liability to Buyer. Buyer shall receive a dollar for dollar credit to the Purchase Price for the net book value of any Account Receivable or Note Receivable associated with any affected agreement, which is not assigned to Buyer and the affected Account Receivable and/or Note Receivable shall not be assigned to Buyer. Buyer may require, at its sole option, that Seller reject any affected contract pursuant to Section 6.1.4 of this Agreement. Buyer shall be responsible for providing adequate assurance of its ability to perform the obligations of Seller under these agreements following Closing. Seller's reasonable commercial efforts shall not require Seller to bear any costs associated with any time, expense or travel of Buyer, its employees, attorneys, accountants or other professionals or agents, or any other costs of Buyer. 6.1.4 Seller shall use commercially reasonable efforts, at its sole cost and expense, to file and obtain approval of the motion(s) to reject those executory contracts identified on Schedule 6.1.4. 6.1.5 From and after the date of this Agreement, Seller shall not take any action or fail to take any action, which action or failure to act would reasonably be expected to (i) prevent or impede the consummation of the transactions contemplated in this Agreement, or (ii) result in (A) the reversal, avoidance, revocation, vacating or modification (in any manner which would reasonably be expected to materially and adversely affect Buyer's rights hereunder) or (B) the entry of a stay pending appeal, in the cases of each of sub-clauses (A) or (B) of this Section, with respect to the Approval Order, the Cash Collateral Order, the Assignment Order; provided, however, that nothing contained herein will in any way limit Seller's ability to provide notice of the Approval Motion and to comply with requests for information from potential competing bidders for the Assets so long as it complies with the provisions of Section 6.2 and 6.3.
Appears in 1 contract
Bankruptcy Covenants. 6.1.1 Immediately after (a) At the execution of this Agreement, Seller shall:
6.1.1.1 continue to operate its business from and after the commencement of the Chapter 11 Case;
6.1.1.2 file a motion, pursuant to 11 U.S.C. Sections 105, 363, and 365 to approve the sale of the Assets to Buyer pursuant to this Agreement, including the overbidding procedures in Section 6.2 and break-up fee in Section 6.3 (the "Approval Motion");
6.1.1.3 file a motion (the "Cash Collateral Motion") for emergency determination for approval of and authorizing SellerHearing, as borrowerdefined in the Notice of Auction Procedures, dated October 30, 2001, related to use cash collateralthe Bankruptcy Cases, such motion in form and substance reasonably acceptable to Buyer. Seller the Bankruptcy Sellers shall use their respective commercially reasonable efforts to obtain the entry of an order (order, which may be substantially in the "Cash Collateral Order") within 10 days of the date of this Agreement and a final order within 30 days of the date of this Agreement, and approval form of the Approval Motion Order, authorizing the Bankruptcy Sellers to sell the Acquired Assets to the Buyer, which form has been provided to and is reasonably satisfactory to Buyer (the "Approval Order") within 45 days of the date of this Agreement, which orders shall each be in form and substance reasonably acceptable to Buyer, provided that the Approval Order shall be in a form substantially in conformity with the form of order attached as Schedule 6.1.1.3 and the Cash Collateral Order shall, among other customary terms and provisions, be in form and substance acceptable to Buyer, with only such changes to such orders as shall be agreed to by all of the parties in writing.
6.1.2 Seller shall promptly provide Buyer with drafts of all documents, motions, orders, filings or pleadings that Seller proposes to file with the Bankruptcy Court which relate to the consummation or approval of this Agreement, the Cash Collateral Motion or any other provision of this Agreement, and will provide Buyer with reasonable opportunity to review and approve such proposed filings as reasonably practical. Seller shall also promptly (within 24 hours) provide Buyer with facsimile copies of all pleadings received by or served by or upon Seller in connection with its Bankruptcy Case, which have not otherwise been served on Buyer.
6.1.3 Seller shall use commercially reasonable efforts to obtain, at its sole cost and expense, the entry of a final order authorizing Seller to assign the Franchise Agreements, Developer Agreements, Management Agreements, Kodak Supply Agreement, Agfa Supply Agreement, Trebla Supply Agreement, Leases and Assumed Debtor Assigned Contracts to the Buyer (the "Assignment Order"), which may be part of the Approval Order. Except for Buyer's right to assume payments due from Seller under the Franchise Agreements, Developer Agreements, Kodak Supply Agreement, Agfa Supply Agreement, Trebla Supply Agreement and Assumed Contracts in exchange for a credit toward the Purchase Price payment as provided in Section 5.3 of this Agreement, The applicable Bankruptcy Seller shall be responsible for the payment, payment at or prior to Closing of any amounts necessary to cure any defaults which exist at on the Closing Date under the Franchise AgreementsDebtor Assigned Contracts, Developer Agreements, Management Agreements, Kodak Supply Agreement, Agfa Supply Agreement, Trebla Supply Agreement and Assumed Contracts. Notwithstanding the foregoing, if one or more parties to any non-supply related executory contracts asserts a claim or files an objection to Seller's assumption and assignment of their respective contract(s) to Buyer based on a claim or claims which in the aggregate exceed $50,000, which are determined to be valid after notice and hearing and which Seller is unwilling to cure, then the parties shall proceed to Closing without the affected agreement(s) with an abatement to the Purchase Price equal to the percentage reduction in actual collections over the previous 12 months, as a result of the loss of the affected agreements. For example, if the affected agreements represent 2% of Seller's actual collections during the 12 months immediately preceding Closing, then Buyer would be entitled to a 2% reduction in the Purchase Price. If the claims exceed $200,000, the Seller may, at its sole option, terminate this Agreement and refund the Deposit to Buyer, without further liability to Buyer. Buyer shall receive a dollar for dollar credit to the Purchase Price for the net book value of any Account Receivable or Note Receivable associated with any affected agreement, which is not assigned to Buyer and the affected Account Receivable and/or Note Receivable shall not be assigned to Buyer. Buyer may require, at its sole option, that Seller reject any affected contract pursuant to Section 6.1.4 of this Agreement. Buyer shall be responsible for providing adequate assurance of its ability to perform the obligations of the Bankruptcy Seller under these agreements the Debtor Assigned Contracts following the Closing. Seller's The Buyer shall use its commercially reasonable commercial efforts shall not require Seller to bear any costs associated with any timeassist the Bankruptcy Sellers in obtaining the Approval Order and the Assignment Order, expense or travel as may be necessary, including without limitation, making officers and other principals of Buyer, its employees, attorneys, accountants or other professionals or agents, or any other costs of Buyerthe Buyer available for testimony before the U.S. Bankruptcy Court.
6.1.4 Seller shall use commercially reasonable efforts, at its sole cost and expense, to file and obtain approval of the motion(s(b) to reject those executory contracts identified on Schedule 6.1.4.
6.1.5 From and after the date hereof, neither the Seller nor the Buyer shall, and each Seller and the Buyer shall ensure that none of this Agreementits respective Subsidiaries shall, Seller shall not take any action or fail to take any action, which action or failure to act would reasonably be expected to (i) prevent or impede the consummation of the transactions contemplated by this Agreement in accordance with the terms of this Agreement, or (ii) result in (A) the reversal, avoidance, revocation, vacating or modification (in any manner which would reasonably be expected to materially and adversely affect the Buyer's rights hereunder) or (B) the entry of a stay pending appeal, in the cases of each of sub-clauses (A) or (B) of this Section, with respect to the Approval Order, the Cash Collateral Order, Order or the Assignment Order or the Provision Order issued by the Bankruptcy Court pursuant to 11 U.S.C. ss.ss.105, 363 and 365, dated October 30, 2001, related to the U.S. Bankruptcy Case (the "Provision Order; provided, however, that nothing contained herein will in any way limit Seller's ability to provide notice ").
(c) As soon as practical after the entry of the Approval Motion Order, L&H shall seek to obtain the Belgian Bankruptcy Approval. The Buyer shall use its commercially reasonable efforts to assist the Bankruptcy Sellers in obtaining the Belgian Bankruptcy Approval, as may be necessary, including without limitation, making officers and other principals of the Buyer available for testimony before the Belgian Bankruptcy Authorities.
(d) The Bankruptcy Sellers shall promptly provide the Buyer with drafts of all documents, motions, orders, filings or pleadings that the Bankruptcy Sellers propose to comply with requests for information from potential competing bidders for the Assets so long as it complies file with the provisions Bankruptcy Courts which relate to the consummation or approval of Section 6.2 this Agreement, the Ancillary Agreements, or any provision herein or therein, and 6.3will provide the Buyer with reasonable opportunity to review and approve such filings as reasonably practical. The Bankruptcy Sellers shall also promptly (within 24 hours) provide the Buyer with copies of all pleadings received by or served by or upon the Bankruptcy Sellers in connection therewith or in connection with the Belgian Bankruptcy Approval which have not otherwise been served on the Buyer.
Appears in 1 contract
Bankruptcy Covenants. 6.1.1 Immediately after the execution of this Agreement, Seller shall:
6.1.1.1 continue to operate its business from and after the commencement of the Chapter 11 Case;
6.1.1.2 file a motion, pursuant to 11 U.S.C. Sections 105, 363, and 365 to approve the sale of the Assets to Buyer pursuant to this Agreement, including the overbidding procedures in Section 6.2 and break-up fee in Section 6.3 (the "Approval Motion");
6.1.1.3 file a motion (the "Cash Collateral Motion"a) for emergency determination for approval of and authorizing Seller, as borrower, to use cash collateral, such motion in form and substance reasonably acceptable to Buyer. Seller shall use commercially reasonable efforts to obtain an order (the "Cash Collateral Order") within 10 days of the date of this Agreement and a final order within 30 days of the date of this Agreement, and approval of the Approval Motion (the "Approval Order") within 45 days of the date of this Agreement, which orders shall each be in form and substance reasonably acceptable to Buyer, provided that the Approval Order shall be in a form substantially in conformity with the form of order attached as Schedule 6.1.1.3 and the Cash Collateral Order shall, among other customary terms and provisions, be in form and substance acceptable to Buyer, with only such changes to such orders as shall be agreed to by all of the parties in writing.
6.1.2 Seller The Company shall promptly provide Buyer the Purchaser with proposed final drafts of all documents, motions, orders, filings or pleadings that Seller the Company proposes to file with the Bankruptcy Court which relate to the approval or consummation or approval of the Contemplated Transactions, this Agreement, the Cash Collateral Motion Agreement or any other provision of this Agreementtherein or herein, and will provide Buyer the Purchaser with reasonable opportunity to review and approve comment on such proposed filings filings.
(b) Without limiting the generality of Section 5.9(a), the Sale Order shall acceptable in form and substance to the Purchaser and its counsel, including, without limitation, as reasonably practicalto the adequacy of notice of the hearing or hearings on the Company's motion for approval of the Contemplated Transactions, the applicability of sections 363(f), 363(m) and 1146(c) of the Bankruptcy Code to the Contemplated Transactions, the satisfaction of all cure obligations, and the Purchaser's provision of adequate assurance of future performance of the Assumed Contracts and Assumed Leases.
(c) In the event an appeal is taken, or a stay pending appeal is requested or reconsideration is sought, from the Sale Order, the Company shall promptly after becoming aware thereof notify the Purchaser of such notice of appeal, request for a stay pending appeal or motion for reconsideration. Seller The Company shall also promptly provide the Purchaser with written notice (within 24 hoursand copies) provide Buyer with facsimile copies of all pleadings received by any other or served by further notice of appeal, motion or upon Seller application filed in connection with its Bankruptcy Caseany appeal from or application for reconsideration of, which have not otherwise been served on Buyer.
6.1.3 Seller either of such orders and any related briefs. The Company shall use commercially reasonable efforts to obtain, at its sole cost and expense, the entry of a final order authorizing Seller to assign the Franchise Agreements, Developer Agreements, Management Agreements, Kodak Supply Agreement, Agfa Supply Agreement, Trebla Supply Agreement, Leases and Assumed Contracts to Buyer (the "Assignment Order"). Except also defend any such appeals or requests for Buyer's right to assume payments due from Seller under the Franchise Agreements, Developer Agreements, Kodak Supply Agreement, Agfa Supply Agreement, Trebla Supply Agreement and Assumed Contracts in exchange for a credit toward the Purchase Price payment as provided in Section 5.3 of this Agreement, Seller shall be responsible for the payment, at or prior to Closing of any amounts necessary to cure any defaults which exist at Closing under the Franchise Agreements, Developer Agreements, Management Agreements, Kodak Supply Agreement, Agfa Supply Agreement, Trebla Supply Agreement and Assumed Contracts. Notwithstanding the foregoing, if one or more parties to any non-supply related executory contracts asserts a claim or files an objection to Seller's assumption and assignment of their respective contract(s) to Buyer based on a claim or claims which in the aggregate exceed $50,000, which are determined to be valid after notice and hearing and which Seller is unwilling to cure, then the parties shall proceed to Closing without the affected agreement(s) with an abatement to the Purchase Price equal to the percentage reduction in actual collections over the previous 12 months, as a result stay of the loss of the affected agreements. For exampleSale Order, if the affected agreements represent 2% of Seller's actual collections during the 12 months immediately preceding Closing, then Buyer would be entitled to a 2% reduction in the Purchase Price. If the claims exceed $200,000, the Seller may, at its sole option, terminate this Agreement and refund the Deposit to Buyer, without further liability to Buyer. Buyer shall receive a dollar for dollar credit to the Purchase Price for the net book value of any Account Receivable or Note Receivable associated with any affected agreement, which is not assigned to Buyer and the affected Account Receivable and/or Note Receivable but shall not be assigned required to Buyer. Buyer may require, at its sole option, that Seller reject any affected contract pursuant to Section 6.1.4 of this Agreement. Buyer shall be responsible for providing adequate assurance of its ability to perform the obligations of Seller under these agreements following Closing. Seller's reasonable commercial efforts shall not require Seller to bear any costs associated with any time, expense or travel of Buyer, its employees, attorneys, accountants or other professionals or agents, or any other costs of Buyerexpend unlimited funds in doing so.
6.1.4 Seller shall use commercially reasonable efforts, at its sole cost and expense, to file and obtain approval of the motion(s) to reject those executory contracts identified on Schedule 6.1.4.
6.1.5 From and after the date of this Agreement, Seller shall not take any action or fail to take any action, which action or failure to act would reasonably be expected to (i) prevent or impede the consummation of the transactions contemplated in this Agreement, or (ii) result in (A) the reversal, avoidance, revocation, vacating or modification (in any manner which would reasonably be expected to materially and adversely affect Buyer's rights hereunder) or (B) the entry of a stay pending appeal, in the cases of each of sub-clauses (A) or (B) of this Section, with respect to the Approval Order, the Cash Collateral Order, the Assignment Order; provided, however, that nothing contained herein will in any way limit Seller's ability to provide notice of the Approval Motion and to comply with requests for information from potential competing bidders for the Assets so long as it complies with the provisions of Section 6.2 and 6.3.
Appears in 1 contract
Bankruptcy Covenants. 6.1.1 Immediately after (a) Notwithstanding anything herein to the execution of this Agreementcontrary, Seller shall:
6.1.1.1 continue to operate its business from the Company shall not, and after the commencement shall cause each of the Chapter 11 Case;
6.1.1.2 file a motionother Debtors not to, pursuant to 11 U.S.C. Sections 105offer, 363agree to, or seek approval from the Bankruptcy Court for, and 365 shall use their best efforts to approve the sale of the Assets object to Buyer pursuant to this Agreementany request by any other party for, including the overbidding procedures in Section 6.2 and any break-up fee, work fee, expense reimbursement or any other benefit or protection for any Person in connection with any proposed acquisition of or investment in any of the Debtors, other than (i) West, (ii) Investor, (iii) any Other Investor, and (iv) any other Person making an investment pursuant to Section 6.08(b); provided that (A) such other Person is purchasing at least $50,000,000 of New Common Stock on terms, and conditions, including without limitation purchase price, that are no more favorable to such other Person than the terms and conditions provided herein and in the Stockholders Agreement are to the Investor and (B) without limitation of the preceding clause (A), any break-up or similar fee payable to such other Person shall not exceed three percent (3.0%) of the aggregate amount of financing to be provided by such other Person.
(b) Each of the Debtors agrees that if the Merger Agreement becomes the Approved Proposal (as defined in Section 6.3 (the "Approval Motion"Merger Agreement);
6.1.1.3 file a motion (the "Cash Collateral Motion") for emergency determination for approval of and authorizing Seller, as borrower, to use cash collateral, such motion in form and substance reasonably acceptable to Buyer. Seller it shall use commercially reasonable its best efforts to obtain an cause any order approving the Approved Proposal to prohibit the Debtors (the "Cash Collateral Order") within 10 days and any Person purporting to act on behalf of the date estate of any Debtor) from violating the provisions of Section 4.4(a) of the Merger Agreement or from otherwise pursuing in any way any East Acquisition Proposal (as defined in the Merger Agreement) other than the Merger Agreement unless the Merger Agreement shall have previously been terminated in accordance with its terms.
(c) In connection with any proceedings in the Bankruptcy Court related to the Bidding Procedures (as hereinafter defined), the order approving the Approved Proposal or the transactions contemplated by the Merger Agreement or this Agreement and a final order within 30 days of (or any Qualified Competing Plan Proposal (as defined in the date of this Agreement, and approval of Bidding Procedures)) (a) the Approval Motion (the "Approval Order") within 45 days of the date of this Agreement, which orders Company shall each be in form and substance reasonably acceptable provide to Buyer, provided that the Approval Order shall be in a form substantially in conformity with the form of order attached as Schedule 6.1.1.3 and the Cash Collateral Order shall, among other customary terms and provisions, be in form and substance acceptable to Buyer, with only such changes to such orders as shall be agreed to by all of the parties in writing.
6.1.2 Seller shall promptly provide Buyer with drafts Investor copies of all documents, motions, ordersobjections, filings pleadings, notices, proposed orders and other documents that are filed by or pleadings that Seller proposes on behalf of any Debtor as soon as reasonably practicable prior to file filing thereof with the Bankruptcy Court which relate and (b) West shall provide to the consummation or approval of this Agreement, the Cash Collateral Motion or any other provision of this Agreement, and will provide Buyer with reasonable opportunity to review and approve such proposed filings as reasonably practical. Seller shall also promptly (within 24 hours) provide Buyer with facsimile Investor copies of all pleadings received motions, objections, pleadings, notices, proposed orders and other documents that are filed by or served by or upon Seller on behalf of West as soon as reasonably practicable prior to filing thereof with the Bankruptcy Court.
(d) Except in connection with its Bankruptcy Casea Qualified Competing Plan Proposal in accordance with the Bidding Procedures, which have (a) the Company and West shall not, and shall not otherwise been served on Buyerauthorize or permit any of their Subsidiaries or any of the Company's or West's or such Subsidiaries' Representatives, directly or indirectly, to, solicit, negotiate or enter into any letter of intent, agreement in principle, term sheet, agreement or other similar arrangement that would be or is intended to be an alternative to, or in lieu of, or to replace any portion of any of the Commercial Agreements.
6.1.3 Seller shall use commercially reasonable efforts to obtain, at its sole cost and expense(e) Except in accordance with the Bidding Procedures, the entry of a final order authorizing Seller to assign the Franchise AgreementsCompany and West shall not, Developer Agreements, Management Agreements, Kodak Supply Agreement, Agfa Supply Agreement, Trebla Supply Agreement, Leases and Assumed Contracts to Buyer (the "Assignment Order"). Except for Buyer's right to assume payments due from Seller under the Franchise Agreements, Developer Agreements, Kodak Supply Agreement, Agfa Supply Agreement, Trebla Supply Agreement and Assumed Contracts in exchange for a credit toward the Purchase Price payment as provided in Section 5.3 of this Agreement, Seller shall be responsible for the payment, at not authorize or prior to Closing of permit any amounts necessary to cure any defaults which exist at Closing under the Franchise Agreements, Developer Agreements, Management Agreements, Kodak Supply Agreement, Agfa Supply Agreement, Trebla Supply Agreement and Assumed Contracts. Notwithstanding the foregoing, if one or more parties to any non-supply related executory contracts asserts a claim or files an objection to Seller's assumption and assignment of their respective contract(s) to Buyer based on a claim Subsidiaries or claims which in the aggregate exceed $50,000, which are determined to be valid after notice and hearing and which Seller is unwilling to cure, then the parties shall proceed to Closing without the affected agreement(s) with an abatement to the Purchase Price equal to the percentage reduction in actual collections over the previous 12 months, as a result any of the loss of the affected agreements. For exampleCompany's or West's or such Subsidiaries' Representatives, if the affected agreements represent 2% of Seller's actual collections during the 12 months immediately preceding Closingdirectly or indirectly, then Buyer would be entitled to a 2% reduction in the Purchase Price. If the claims exceed $200,000to, the Seller may(i) solicit, at its sole option, terminate this Agreement and refund the Deposit to Buyer, without further liability to Buyer. Buyer shall receive a dollar for dollar credit to the Purchase Price for the net book value of any Account Receivable or Note Receivable associated with any affected agreement, which is not assigned to Buyer and the affected Account Receivable and/or Note Receivable shall not be assigned to Buyer. Buyer may require, at its sole option, that Seller reject any affected contract pursuant to Section 6.1.4 of this Agreement. Buyer shall be responsible for providing adequate assurance of its ability to perform the obligations of Seller under these agreements following Closing. Seller's reasonable commercial efforts shall not require Seller to bear any costs associated with any time, expense or travel of Buyer, its employees, attorneys, accountants or other professionals or agentsinitiate, or any other costs of Buyer.
6.1.4 Seller shall use commercially reasonable efforts, at its sole cost and expense, to file and obtain approval of the motion(s) to reject those executory contracts identified on Schedule 6.1.4.
6.1.5 From and after the date of this Agreement, Seller shall not take any action designed to induce a proposal or fail to take offer for an Alternative Proposal, (ii) participate in any action, which action discussions or failure to act would reasonably be expected to (i) prevent or impede the consummation of the transactions contemplated in this Agreementnegotiations regarding any Alternative Proposal, or (iiiii) result enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to any Alternative Proposal. "Alternative Proposal" means (Ax) the reversalany Alternative Transaction, avoidanceor proposal therefor, revocation, vacating or modification (in any manner which would reasonably be expected to materially and adversely affect Buyer's rights hereunder) or (By) the entry of any proposed investment that would, or is intended to, replace all or a stay pending appeal, in the cases of each of sub-clauses (A) or (B) of this Section, with respect to the Approval Order, the Cash Collateral Order, the Assignment Order; provided, however, that nothing contained herein will in any way limit Seller's ability to provide notice material portion of the Approval Motion and to comply with requests for information from potential competing bidders for the Assets so long as it complies with the provisions of Section 6.2 and 6.3investment contemplated by this Agreement.
Appears in 1 contract
Bankruptcy Covenants. 6.1.1 Immediately after (a) Within three Business Days following the execution of this Agreement, Seller shall:
6.1.1.1 continue to operate its business from and after the commencement completion of the Chapter 11 Case;
6.1.1.2 Auction, Sellers will and will cause their applicable Subsidiaries to, at their sole cost and expense, file a motionmotion to obtain an order, pursuant to 11 U.S.C. Sections 105, 363, and 365 365, to approve the sale Acquisition, in form and substance reasonably acceptable to Purchaser and Nucentrix, but including the express terms of the Assets to Buyer pursuant to this Agreement, including Approval Order as defined and on the overbidding procedures in Section 6.2 and break-up fee in Section 6.3 terms contained herein (the "Approval Motion");
6.1.1.3 file a motion (the "Cash Collateral Motion") for emergency determination for approval of . Sellers will, and authorizing Sellerwill cause their applicable Subsidiaries to, as borrower, to use cash collateral, such motion in form and substance reasonably acceptable to Buyer. Seller shall use commercially reasonable their best efforts to obtain an order (the "Cash Collateral Order") within 10 days of the date of this Agreement and a final order within 30 days of the date of this Agreement, and approval of the Approval Motion (the "Approval Order") within 45 days of the date of this Agreement, which orders shall each be in form and substance reasonably acceptable to Buyer, provided that the Approval Order shall be in a form substantially in conformity with the form of order attached as Schedule 6.1.1.3 and the Cash Collateral Order shallon or before November 17, among other customary terms and provisions, be in form and substance acceptable to Buyer, with only such changes to such orders as shall be agreed to by all of the parties in writing2003.
6.1.2 Seller shall promptly (b) Sellers will provide Buyer with drafts of Purchaser and its Representatives the opportunity, and sufficient time, to review and comment on all documents, motions, orders, filings or pleadings that Seller proposes to Sellers file with the Bankruptcy Court which relate to the consummation or approval of the Acquisition and this Agreement, the Cash Collateral Motion Approval Motion, related orders, or any other provision of this Agreementherein or therein, and will provide Buyer with incorporate all reasonable opportunity to review comments of Purchaser and approve such proposed filings as reasonably practicalits Representatives. Seller shall Sellers will also promptly (within 24 hours) provide Buyer Purchaser with facsimile or electronic copies of all pleadings received by or served by or upon Seller the Sellers in connection with its Bankruptcy Case, which which, to the Knowledge of Sellers, have not otherwise been served on BuyerPurchaser.
6.1.3 Seller shall use commercially reasonable efforts to obtain, at its sole cost and expense, the entry of a final order authorizing Seller to assign the Franchise Agreements, Developer Agreements, Management Agreements, Kodak Supply Agreement, Agfa Supply Agreement, Trebla Supply Agreement, Leases and Assumed Contracts to Buyer (the "Assignment Order"). Except for Buyer's right to assume payments due from Seller under the Franchise Agreements, Developer Agreements, Kodak Supply Agreement, Agfa Supply Agreement, Trebla Supply Agreement and Assumed Contracts in exchange for a credit toward the Purchase Price payment as provided in Section 5.3 of this Agreement, Seller shall be responsible for the payment, at or prior to Closing of any amounts necessary to cure any defaults which exist at Closing under the Franchise Agreements, Developer Agreements, Management Agreements, Kodak Supply Agreement, Agfa Supply Agreement, Trebla Supply Agreement and Assumed Contracts. Notwithstanding the foregoing, if one or more parties to any non-supply related executory contracts asserts a claim or files an objection to Seller's assumption and assignment of their respective contract(sc) to Buyer based on a claim or claims which in the aggregate exceed $50,000, which are determined to be valid after notice and hearing and which Seller is unwilling to cure, then the parties shall proceed to Closing without the affected agreement(s) with an abatement to the Purchase Price equal to the percentage reduction in actual collections over the previous 12 months, as a result of the loss of the affected agreements. For example, if the affected agreements represent 2% of Seller's actual collections during the 12 months immediately preceding Closing, then Buyer would be entitled to a 2% reduction in the Purchase Price. If the claims exceed $200,000, the Seller may, at its sole option, terminate this Agreement and refund the Deposit to Buyer, without further liability to Buyer. Buyer shall receive a dollar for dollar credit to the Purchase Price for the net book value of any Account Receivable or Note Receivable associated with any affected agreement, which is not assigned to Buyer and the affected Account Receivable and/or Note Receivable shall not be assigned to Buyer. Buyer may require, at its sole option, that Seller reject any affected contract pursuant to Section 6.1.4 of this Agreement. Buyer shall be responsible for providing adequate assurance of its ability to perform the obligations of Seller under these agreements following Closing. Seller's reasonable commercial efforts shall not require Seller to bear any costs associated with any time, expense or travel of Buyer, its employees, attorneys, accountants or other professionals or agents, or any other costs of Buyer.
6.1.4 Seller shall use commercially reasonable efforts, at its sole cost and expense, to file and obtain approval of the motion(s) to reject those executory contracts identified on Schedule 6.1.4.
6.1.5 From and after the commencement of the Bankruptcy Cases, Sellers will, and will cause their applicable Subsidiaries to, continue to operate their business as a debtor in possession pursuant to Sections 1107 and 1108 of the Bankruptcy Code.
(d) During the period from the date of this Agreementhereof until the Closing, Seller Sellers shall not take any action or fail and shall not permit their Subsidiaries to take any action, which action or failure to act would reasonably be expected to (i) prevent or impede actions outside the consummation ordinary and usual course of business without the approval of the transactions contemplated in this Agreement, or (ii) result in (A) the reversal, avoidance, revocation, vacating or modification (in any manner which would reasonably be expected Bankruptcy Court after written notice to materially and adversely affect Buyer's rights hereunder) or (B) the entry of a stay pending appeal, in the cases of each of sub-clauses (A) or (B) of this Section, with respect to the Approval Order, the Cash Collateral Order, the Assignment Order; provided, however, that nothing contained herein will in any way limit Seller's ability to provide notice of the Approval Motion and to comply with requests for information from potential competing bidders for the Assets so long as it complies with the provisions of Section 6.2 and 6.3Purchaser.
Appears in 1 contract
Samples: Asset Purchase Agreement (Nucentrix Broadband Networks Inc)
Bankruptcy Covenants. 6.1.1 Immediately after (a) Notwithstanding anything herein to the execution of this Agreementcontrary, Seller shall:
6.1.1.1 continue to operate its business from the Company shall not, and after the commencement shall cause each of the Chapter 11 Case;
6.1.1.2 file a motionother Debtors not to, pursuant to 11 U.S.C. Sections 105offer, 363agree to, or seek approval from the Bankruptcy Court for, and 365 shall use their best efforts to approve the sale of the Assets object to Buyer pursuant to this Agreementany request by any other party for, including the overbidding procedures in Section 6.2 and any break-up fee, work fee, expense reimbursement or any other benefit or protection for any Person in connection with any proposed acquisition of or investment in any of the Debtors, other than (i) West, (ii) Investor, (iii) any Other Investor, and (iv) any other Person making an investment pursuant to Section 6.08(b); provided that (A) such other Person is purchasing at least $50,000,000 of New Common Stock on terms, and conditions, including without limitation purchase price, that are no more favorable to such other Person than the terms and conditions provided herein and in the Stockholders Agreement are to the Investor and (B) without limitation of the preceding clause (A), any break-up or similar fee payable to such other Person shall not exceed three percent (3.0%) of the aggregate amount of financing to be provided by such other Person.
(b) Each of the Debtors agrees that if the Merger Agreement becomes the Approved Proposal (as defined in Section 6.3 (the "Approval Motion"Merger Agreement);
6.1.1.3 file a motion (the "Cash Collateral Motion") for emergency determination for approval of and authorizing Seller, as borrower, to use cash collateral, such motion in form and substance reasonably acceptable to Buyer. Seller it shall use commercially reasonable its best efforts to obtain an cause any order approving the Approved Proposal to prohibit the Debtors (the "Cash Collateral Order") within 10 days and any Person purporting to act on behalf of the date estate of any Debtor) from violating the provisions of Section 4.4(a) of the Merger Agreement or from otherwise pursuing in any way any East Acquisition Proposal (as defined in the Merger Agreement) other than the Merger Agreement unless the Merger Agreement shall have previously been terminated in accordance with its terms.
(c) In connection with any proceedings in the Bankruptcy Court related to the Bidding Procedures (as hereinafter defined), the order approving the Approved Proposal or the transactions contemplated by the Merger Agreement or this Agreement and a final order within 30 days of (or any Qualified Competing Plan Proposal (as defined in the date of this Agreement, and approval of Bidding Procedures)) (a) the Approval Motion (the "Approval Order") within 45 days of the date of this Agreement, which orders Company shall each be in form and substance reasonably acceptable provide to Buyer, provided that the Approval Order shall be in a form substantially in conformity with the form of order attached as Schedule 6.1.1.3 and the Cash Collateral Order shall, among other customary terms and provisions, be in form and substance acceptable to Buyer, with only such changes to such orders as shall be agreed to by all of the parties in writing.
6.1.2 Seller shall promptly provide Buyer with drafts Investor copies of all documents, motions, ordersobjections, filings pleadings, notices, proposed orders and other documents that are filed by or pleadings that Seller proposes on behalf of any Debtor as soon as reasonably practicable prior to file filing thereof with the Bankruptcy Court which relate and (b) West shall provide to the consummation or approval of this Agreement, the Cash Collateral Motion or any other provision of this Agreement, and will provide Buyer with reasonable opportunity to review and approve such proposed filings as reasonably practical. Seller shall also promptly (within 24 hours) provide Buyer with facsimile Investor copies of all pleadings received motions, objections, pleadings, notices, proposed orders and other documents that are filed by or served by or upon Seller in connection on behalf of West as soon as reasonably practicable prior to filing thereof with its the Bankruptcy Case, which have not otherwise been served on BuyerCourt.
6.1.3 Seller shall use commercially reasonable efforts to obtain, at its sole cost and expense(d) Except in accordance with the Bidding Procedures, the entry of a final order authorizing Seller to assign the Franchise AgreementsCompany and West shall not, Developer Agreements, Management Agreements, Kodak Supply Agreement, Agfa Supply Agreement, Trebla Supply Agreement, Leases and Assumed Contracts to Buyer (the "Assignment Order"). Except for Buyer's right to assume payments due from Seller under the Franchise Agreements, Developer Agreements, Kodak Supply Agreement, Agfa Supply Agreement, Trebla Supply Agreement and Assumed Contracts in exchange for a credit toward the Purchase Price payment as provided in Section 5.3 of this Agreement, Seller shall be responsible for the payment, at not authorize or prior to Closing of permit any amounts necessary to cure any defaults which exist at Closing under the Franchise Agreements, Developer Agreements, Management Agreements, Kodak Supply Agreement, Agfa Supply Agreement, Trebla Supply Agreement and Assumed Contracts. Notwithstanding the foregoing, if one or more parties to any non-supply related executory contracts asserts a claim or files an objection to Seller's assumption and assignment of their respective contract(s) to Buyer based on a claim Subsidiaries or claims which in the aggregate exceed $50,000, which are determined to be valid after notice and hearing and which Seller is unwilling to cure, then the parties shall proceed to Closing without the affected agreement(s) with an abatement to the Purchase Price equal to the percentage reduction in actual collections over the previous 12 months, as a result any of the loss of the affected agreements. For exampleCompany's or West's or such Subsidiaries' Representatives, if the affected agreements represent 2% of Seller's actual collections during the 12 months immediately preceding Closingdirectly or indirectly, then Buyer would be entitled to a 2% reduction in the Purchase Price. If the claims exceed $200,000to, the Seller may(i) solicit, at its sole option, terminate this Agreement and refund the Deposit to Buyer, without further liability to Buyer. Buyer shall receive a dollar for dollar credit to the Purchase Price for the net book value of any Account Receivable or Note Receivable associated with any affected agreement, which is not assigned to Buyer and the affected Account Receivable and/or Note Receivable shall not be assigned to Buyer. Buyer may require, at its sole option, that Seller reject any affected contract pursuant to Section 6.1.4 of this Agreement. Buyer shall be responsible for providing adequate assurance of its ability to perform the obligations of Seller under these agreements following Closing. Seller's reasonable commercial efforts shall not require Seller to bear any costs associated with any time, expense or travel of Buyer, its employees, attorneys, accountants or other professionals or agentsinitiate, or any other costs of Buyer.
6.1.4 Seller shall use commercially reasonable efforts, at its sole cost and expense, to file and obtain approval of the motion(s) to reject those executory contracts identified on Schedule 6.1.4.
6.1.5 From and after the date of this Agreement, Seller shall not take any action designed to induce a proposal or fail to take offer for an Alternative Proposal, (ii) participate in any action, which action discussions or failure to act would reasonably be expected to (i) prevent or impede the consummation of the transactions contemplated in this Agreementnegotiations regarding any Alternative Proposal, or (iiiii) result enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to any Alternative Proposal. "Alternative Proposal" means (Ax) the reversalany Alternative Transaction, avoidanceor proposal therefor, revocation, vacating or modification (in any manner which would reasonably be expected to materially and adversely affect Buyer's rights hereunder) or (By) the entry of any proposed investment that would, or is intended to, replace all or a stay pending appeal, in the cases of each of sub-clauses (A) or (B) of this Section, with respect to the Approval Order, the Cash Collateral Order, the Assignment Order; provided, however, that nothing contained herein will in any way limit Seller's ability to provide notice material portion of the Approval Motion and to comply with requests for information from potential competing bidders for the Assets so long as it complies with the provisions of Section 6.2 and 6.3investment contemplated by this Agreement.
Appears in 1 contract
Bankruptcy Covenants. 6.1.1 Immediately after (a) The Debtors shall cause all proposed First Day Orders, “second day” orders and all other orders establishing procedures for administration of the execution Cases or approving significant or outside the ordinary course of business transactions submitted to the Bankruptcy Court to be in accordance with and permitted by the terms of this AgreementAgreement and, Seller shall:in any event, reasonably acceptable to the Required Lenders in all respects.
6.1.1.1 continue to operate its business from (b) The Loan Parties shall comply in all material respects with each order entered by the Bankruptcy Court.
(c) The Debtors shall comply in a timely manner with their obligations and after responsibilities as debtors-in-possession under the commencement Bankruptcy Code, the Orders, and any other order of the Chapter 11 Case;Bankruptcy Court.
6.1.1.2 file (d) The Debtors shall provide at least five (5) Business Days’ (or such shorter notice reasonably acceptable to the Required Lenders) prior written notice to the Lenders or their counsel prior to any filing of a motion, motion for assumption or rejection of any Debtor’s or any other 90 Subsidiary’s material contracts pursuant to 11 U.S.C. Sections 105Section 365 of the Bankruptcy Code and no such contract or lease shall be assumed or rejected, 363if such assumption or rejection would be materially adverse to the interests of the Secured Parties.
(e) The Debtors shall deliver or cause to be delivered to the Required Lenders or their counsel for review and comment, as soon as reasonably practicable in advance of (but no later than two (2) Business Days prior to) any filing with the Bankruptcy Court, copies of all proposed pleadings, motions, applications, orders, financial information and other documents to be filed by or on behalf of the Loan Parties with the Bankruptcy Court except those that are ministerial or administrative pleadings, motions, applications, orders, financial information and other documents to be filed by or on behalf of the Loan Parties, or distributed by or on behalf of the Loan Parties to any official or unofficial committee appointed or appearing in the Cases or any other party in interest, and 365 shall consult in good faith with the Required Lenders’ advisors regarding the form and substance of any such document.
(f) The Debtors shall provide (i) if not otherwise provided by the Bankruptcy Court’s electronic docketing system or the website maintained by the Debtors’ noticing and service agent, copies to approve the Administrative Agent of all pleadings, motions, applications, judicial information, financial information and other documents filed by or on behalf of the Debtors with the Bankruptcy Court or filed with respect to any Loan Document, (ii) reporting and financial information distributed by or on behalf of the Debtors to the Consenting Stakeholders (as defined in the Restructuring Support Agreement) or any statutory committee appointed in the Cases and (iii) such other reports and information as the Required Lenders may, from time to time, reasonably request.
(g) In connection with the Cases, the Borrower and the other Debtors shall use best efforts to seek to give the proper notice for (i) the motions seeking approval of the Loan Documents and the Orders and (ii) the hearings for the approval of the Orders. The Borrower and the other Debtors shall give, on a timely basis as specified in the Orders, all notices required to be given to all parties specified in the Orders.
(h) The Borrower and the other Debtors shall use reasonable best efforts to obtain the Final Order.
(i) Each Debtor shall provide the Administrative Agent and the Lenders with reasonable access to non-privileged information (including historical information) and relevant personnel regarding strategic planning, cash and liquidity management, operational and restructuring activities, in each case subject to customary confidentiality restrictions.
(j) Each Debtor shall promptly deliver or cause to be delivered to the Financial Advisor (and the Financial Advisor shall be entitled to deliver such information to any Lender or Agent subject to the confidentiality requirements herein) copies of (i) any term sheets, proposals, or presentations from any party, related to (A) the restructuring of the Debtors, or (B) a material sale of assets of one or all of the Debtors and/or any other Restricted Subsidiary, subject to any existing confidentiality and other obligations owed by such Debtor and/or Loan Party to such party furnishing such term sheets, proposals or presentations, including with respect to the sharing of any such information with third parties and (ii) any informational packages provided to potential bidders, draft agency agreements, purchase agreements, status reports and updated information related to the sale or any other transaction and copies of any such bids and any updates, modifications or supplements to such information and materials; provided that, for the avoidance of doubt, the foregoing shall not apply to any Lender or Agent participating in a material sale of assets of one or all of the Assets Debtors and/or any other Restricted Subsidiary in accordance with Acceptable Bidding Procedures. 91
(k) All pleadings related to Buyer pursuant to this Agreement, including the overbidding procedures in Section 6.2 and break-up fee in Section 6.3 (the "Approval Motion");
6.1.1.3 file a motion (the "Cash Collateral Motion") for emergency determination for approval of and authorizing Sellersignificant transactions, as borrowerincluding, to use cash collateralwithout limitation, such motion asset sale procedures, regardless of when filed or entered, shall be reasonably satisfactory in form and substance reasonably acceptable to Buyer. Seller shall use commercially reasonable efforts to obtain an order (the "Cash Collateral Order") within 10 days of the date of this Agreement and a final order within 30 days of the date of this Agreement, and approval of the Approval Motion (the "Approval Order") within 45 days of the date of this Agreement, which orders shall each be in form and substance reasonably acceptable to Buyer, provided that the Approval Order shall be in a form substantially in conformity with the form of order attached as Schedule 6.1.1.3 and the Cash Collateral Order shall, among other customary terms and provisions, be in form and substance acceptable to Buyer, with only such changes to such orders as shall be agreed to by all of the parties in writing.
6.1.2 Seller shall promptly provide Buyer with drafts of all documents, motions, orders, filings or pleadings that Seller proposes to file with the Bankruptcy Court which relate to the consummation or approval of this Agreement, the Cash Collateral Motion or any other provision of this Agreement, and will provide Buyer with reasonable opportunity to review and approve such proposed filings as reasonably practical. Seller shall also promptly (within 24 hours) provide Buyer with facsimile copies of all pleadings received by or served by or upon Seller Required Lenders in connection with its Bankruptcy Case, which have not otherwise been served on Buyertheir sole discretion.
6.1.3 Seller shall use commercially reasonable efforts to obtain, at its sole cost and expense, the entry of a final order authorizing Seller to assign the Franchise Agreements, Developer Agreements, Management Agreements, Kodak Supply Agreement, Agfa Supply Agreement, Trebla Supply Agreement, Leases and Assumed Contracts to Buyer (the "Assignment Order"). Except for Buyer's right to assume payments due from Seller under the Franchise Agreements, Developer Agreements, Kodak Supply Agreement, Agfa Supply Agreement, Trebla Supply Agreement and Assumed Contracts in exchange for a credit toward the Purchase Price payment as provided in Section 5.3 of this Agreement, Seller shall be responsible for the payment, at or prior to Closing of any amounts necessary to cure any defaults which exist at Closing under the Franchise Agreements, Developer Agreements, Management Agreements, Kodak Supply Agreement, Agfa Supply Agreement, Trebla Supply Agreement and Assumed Contracts. Notwithstanding the foregoing, if one or more parties to any non-supply related executory contracts asserts a claim or files an objection to Seller's assumption and assignment of their respective contract(s) to Buyer based on a claim or claims which in the aggregate exceed $50,000, which are determined to be valid after notice and hearing and which Seller is unwilling to cure, then the parties shall proceed to Closing without the affected agreement(s) with an abatement to the Purchase Price equal to the percentage reduction in actual collections over the previous 12 months, as a result of the loss of the affected agreements. For example, if the affected agreements represent 2% of Seller's actual collections during the 12 months immediately preceding Closing, then Buyer would be entitled to a 2% reduction in the Purchase Price. If the claims exceed $200,000, the Seller may, at its sole option, terminate this Agreement and refund the Deposit to Buyer, without further liability to Buyer. Buyer shall receive a dollar for dollar credit to the Purchase Price for the net book value of any Account Receivable or Note Receivable associated with any affected agreement, which is not assigned to Buyer and the affected Account Receivable and/or Note Receivable shall not be assigned to Buyer. Buyer may require, at its sole option, that Seller reject any affected contract pursuant to Section 6.1.4 of this Agreement. Buyer shall be responsible for providing adequate assurance of its ability to perform the obligations of Seller under these agreements following Closing. Seller's reasonable commercial efforts shall not require Seller to bear any costs associated with any time, expense or travel of Buyer, its employees, attorneys, accountants or other professionals or agents, or any other costs of Buyer.
6.1.4 Seller shall use commercially reasonable efforts, at its sole cost and expense, to file and obtain approval of the motion(s) to reject those executory contracts identified on Schedule 6.1.4.
6.1.5 From and after the date of this Agreement, Seller shall not take any action or fail to take any action, which action or failure to act would reasonably be expected to (i) prevent or impede the consummation of the transactions contemplated in this Agreement, or (ii) result in (A) the reversal, avoidance, revocation, vacating or modification (in any manner which would reasonably be expected to materially and adversely affect Buyer's rights hereunder) or (B) the entry of a stay pending appeal, in the cases of each of sub-clauses (A) or (B) of this Section, with respect to the Approval Order, the Cash Collateral Order, the Assignment Order; provided, however, that nothing contained herein will in any way limit Seller's ability to provide notice of the Approval Motion and to comply with requests for information from potential competing bidders for the Assets so long as it complies with the provisions of Section 6.2 and 6.3.
Appears in 1 contract
Samples: Superpriority Secured Debtor in Possession Credit Agreement (Invacare Corp)
Bankruptcy Covenants. 6.1.1 Immediately after (a) Prior to the execution of this AgreementFirm Commitment Closing Date, Seller shall:
6.1.1.1 continue to operate its business from and after the commencement of the Chapter 11 Case;
6.1.1.2 file a motion, pursuant to 11 U.S.C. Sections 105, 363, and 365 to approve the sale of the Assets to Buyer pursuant to this Agreement, including the overbidding procedures in Section 6.2 and break-up fee in Section 6.3 (the "Approval Motion");
6.1.1.3 file a motion (the "Cash Collateral Motion") for emergency determination for approval of and authorizing Seller, as borrower, to use cash collateral, such motion in form and substance reasonably acceptable to Buyer. Seller shall use commercially reasonable efforts to obtain an order (the "Cash Collateral Order") within 10 days of the date of this Agreement and a final order within 30 days of the date of this Agreement, and approval of the Approval Motion (the "Approval Order") within 45 days of the date of this AgreementOrders shall not have been stayed, which orders shall each be in form and substance reasonably acceptable to Buyermodified, provided that the Approval Order shall be in a form substantially in conformity with the form of order attached as Schedule 6.1.1.3 and the Cash Collateral Order shall, among other customary terms and provisions, be in form and substance acceptable to Buyer, with only such changes to such orders as shall be agreed to by all of the parties in writingreversed or amended.
6.1.2 Seller shall promptly provide Buyer with drafts of all documents, motions, orders, filings or pleadings that Seller proposes to file with the Bankruptcy Court which relate to the consummation or approval of this Agreement, the Cash Collateral Motion or any other provision of this Agreement, and will provide Buyer with reasonable opportunity to review and approve such proposed filings as reasonably practical. Seller shall also promptly (within 24 hoursb) provide Buyer with facsimile copies of all pleadings received by or served by or upon Seller in connection with its Bankruptcy Case, which have not otherwise been served on Buyer.
6.1.3 Seller shall use commercially reasonable efforts to obtain, at its sole cost and expense, the entry of a final order authorizing Seller to assign the Franchise Agreements, Developer Agreements, Management Agreements, Kodak Supply Agreement, Agfa Supply Agreement, Trebla Supply Agreement, Leases and Assumed Contracts to Buyer (the "Assignment Order"). Except for Buyer's right to assume payments due from Seller under the Franchise Agreements, Developer Agreements, Kodak Supply Agreement, Agfa Supply Agreement, Trebla Supply Agreement and Assumed Contracts in exchange for a credit toward the Purchase Price payment as provided in Section 5.3 of this Agreement, Seller shall be responsible for the payment, at or prior to Closing of any amounts necessary to cure any defaults which exist at Closing under the Franchise Agreements, Developer Agreements, Management Agreements, Kodak Supply Agreement, Agfa Supply Agreement, Trebla Supply Agreement and Assumed Contracts. Notwithstanding the foregoing, if one or more parties to any non-supply related executory contracts asserts a claim or files an objection to Seller's assumption and assignment of their respective contract(s) to Buyer based on a claim or claims which in the aggregate exceed $50,000, which are determined to be valid after notice and hearing and which Seller is unwilling to cure, then the parties shall proceed to Closing without the affected agreement(s) with an abatement to the Purchase Price equal to the percentage reduction in actual collections over the previous 12 months, as a result of the loss of the affected agreements. For example, if the affected agreements represent 2% of Seller's actual collections during the 12 months immediately preceding Closing, then Buyer would be entitled to a 2% reduction in the Purchase Price. If the claims exceed $200,000, the Seller may, at its sole option, terminate this Agreement and refund the Deposit to Buyer, without further liability to Buyer. Buyer shall receive a dollar for dollar credit to the Purchase Price for the net book value of any Account Receivable or Note Receivable associated with any affected agreement, which is not assigned to Buyer and the affected Account Receivable and/or Note Receivable shall not be assigned to Buyer. Buyer may require, at its sole option, that Seller reject any affected contract pursuant to Section 6.1.4 of this Agreement. Buyer shall be responsible for providing adequate assurance of its ability to perform the obligations of Seller under these agreements following Closing. Seller's reasonable commercial efforts shall not require Seller to bear any costs associated with any time, expense or travel of Buyer, its employees, attorneys, accountants or other professionals or agents, or any other costs of Buyer.
6.1.4 Seller shall use commercially reasonable efforts, at its sole cost and expense, to file and obtain approval of the motion(s) to reject those executory contracts identified on Schedule 6.1.4.
6.1.5 From and after the date hereof, none of this Agreementthe Selling Stockholders, Seller the Company and any Underwriter shall, and the Selling Stockholders, the Company and any Underwriter shall not ensure that none of their respective subsidiaries and affiliates shall, take any action or fail to take any action, which action or failure to act would reasonably be expected to (i) prevent or impede the consummation of the transactions contemplated by this Agreement in accordance with the terms of this Agreement, or (ii) with respect to the Approval Orders, result in (A) the reversal, avoidance, revocation, vacating or modification (in any manner which would reasonably be expected to materially and adversely affect Buyerany Underwriter's rights hereunder) or (B) the entry of a stay pending appealappeal of such Approval Orders.
(c) Each of the Selling Stockholders shall promptly (within 24 hours) provide the Underwriters with drafts of all documents, in motions, orders, filings or pleadings that such Selling Stockholder proposes to file with the cases of each of sub-clauses (A) applicable Bankruptcy Courts which relate to the consummation or (B) approval of this Section, Agreement and will provide the Underwriters with respect reasonable opportunity to review and approve such filings as reasonably practical. The Selling Stockholders shall also promptly (within 24 hours) provide the Approval Order, Underwriters with copies of all pleadings received by or served by or upon the Cash Collateral Order, Selling Stockholders in connection therewith which have not otherwise been served on the Assignment Order; provided, however, that nothing contained herein will in any way limit Seller's ability to provide notice of the Approval Motion and to comply with requests for information from potential competing bidders for the Assets so long as it complies with the provisions of Section 6.2 and 6.3Representative.
Appears in 1 contract
Bankruptcy Covenants. 6.1.1 Immediately after (a) The Debtors shall cause all proposed First Day Orders, “second day” orders and all other orders establishing procedures for administration of the execution Cases or approving significant or outside the ordinary course of business transactions submitted to the Bankruptcy Court to be in accordance with and permitted by the terms of this Agreement and, in any event, reasonably acceptable to the Required Lenders in all respects.
(b) The Loan Parties shall comply in all material respects with each order entered by the Bankruptcy Court.
(c) The Debtors shall comply in a timely manner with their obligations and responsibilities as debtors-in-possession under the Bankruptcy Code, the Orders, the Restructuring Support Agreement, Seller shall:
6.1.1.1 continue to operate its business from and after the commencement any other order of the Chapter 11 Case;Bankruptcy Court.
6.1.1.2 file (d) The Debtors shall provide at least five (5) Business Days’ (or such shorter notice reasonably acceptable to the Required Lenders) prior written notice to the Lenders or their counsel prior to any filing of a motion, motion for assumption or rejection of any Debtor’s or any other Subsidiary’s material contracts pursuant to 11 U.S.C. Sections 105Section 365 of the Bankruptcy Code and no such contract or lease shall be assumed or rejected, 363if such assumption or rejection would be materially adverse to the interests of the Secured Parties.
(e) The Debtors shall deliver or cause to be delivered to the Required Lenders or their counsel for review and comment, as soon as reasonably practicable in advance of (but no later than three (3) Business Days prior to) any filing with the Bankruptcy Court, copies of all proposed pleadings, motions, applications, orders, financial information and other documents to be filed by or on behalf of the Loan Parties with the Bankruptcy Court except those that are ministerial or administrative pleadings, motions, applications, orders, financial information and other documents to be filed by or on behalf of the Loan Parties, or distributed by or on behalf of the Loan Parties to any official or unofficial committee appointed or appearing in the Cases or any other party in interest, and 365 shall consult in good faith with the Required Lenders’ advisors regarding the form and substance of any such document.
(f) The Debtors shall provide (i) if not otherwise provided by the Bankruptcy Court’s electronic docketing system or the website maintained by the Debtors’ noticing and service agent, copies to approve the Administrative Agent of all pleadings, motions, applications, judicial information, financial information and other documents filed by or on behalf of the Debtors with the Bankruptcy Court or filed with respect to any Loan Document, (ii) reporting and financial information distributed by or on behalf of the Debtors to the Sponsoring Noteholders (as defined in the Restructuring Support Agreement) and (iii) such other reports and information as the Required Lenders may, from time to time, reasonably request.
(g) In connection with the Cases, the Borrower and the other Debtors shall use best efforts to seek to give the proper notice for (i) the motions seeking approval of the Loan Documents and the Orders and (ii) the hearings for the approval of the Orders. The Borrower and the other Debtors shall give, on a timely basis as specified in the Orders, all notices required to be given to all parties specified in the Orders.
(h) The Borrower and the other Debtors shall use reasonable best efforts to obtain the Interim Order and the Final Order.
(i) Each Debtor shall provide the Agents and the Lenders with reasonable access to non-privileged information (including historical information) and relevant personnel regarding strategic planning, cash and liquidity management, operational and restructuring activities, in each case subject to customary confidentiality restrictions.
(j) Each Debtor shall promptly deliver or cause to be delivered to the Administrative Agent and the Lenders copies of (i) any term sheets, proposals, or presentations from any party, related to (A) the restructuring of the Debtors, or (B) a material sale of assets of one or all of the Debtors and/or any other Restricted Subsidiary, subject to any existing confidentiality and other obligations owed by such Debtor and/or Loan Party to such party furnishing such term sheets, proposals or presentations, including with respect to the sharing of any such information with third parties and (ii) any informational packages provided to potential bidders, draft agency agreements, purchase agreements, status reports and updated information related to the sale or any other transaction and copies of the Assets any such bids and any updates, modifications or supplements to Buyer pursuant such information and materials.
(k) All pleadings related to this Agreement, including the overbidding procedures in Section 6.2 and break-up fee in Section 6.3 (the "Approval Motion");
6.1.1.3 file a motion (the "Cash Collateral Motion") for emergency determination for approval of and authorizing Sellersignificant transactions, as borrowerincluding, to use cash collateralwithout limitation, such motion asset sale procedures, regardless of when filed or entered, shall be reasonably satisfactory in form and substance reasonably acceptable to Buyer. Seller shall use commercially reasonable efforts to obtain an order (the "Cash Collateral Order") within 10 days of the date of this Agreement and a final order within 30 days of the date of this Agreement, and approval of the Approval Motion (the "Approval Order") within 45 days of the date of this Agreement, which orders shall each be in form and substance reasonably acceptable to Buyer, provided that the Approval Order shall be in a form substantially in conformity with the form of order attached as Schedule 6.1.1.3 and the Cash Collateral Order shall, among other customary terms and provisions, be in form and substance acceptable to Buyer, with only such changes to such orders as shall be agreed to by all of the parties in writing.
6.1.2 Seller shall promptly provide Buyer with drafts of all documents, motions, orders, filings or pleadings that Seller proposes to file with the Bankruptcy Court which relate to the consummation or approval of this Agreement, the Cash Collateral Motion or any other provision of this Agreement, and will provide Buyer with reasonable opportunity to review and approve such proposed filings as reasonably practical. Seller shall also promptly (within 24 hours) provide Buyer with facsimile copies of all pleadings received by or served by or upon Seller Required Lenders in connection with its Bankruptcy Case, which have not otherwise been served on Buyertheir sole discretion.
6.1.3 Seller shall use commercially reasonable efforts to obtain, at its sole cost and expense, the entry of a final order authorizing Seller to assign the Franchise Agreements, Developer Agreements, Management Agreements, Kodak Supply Agreement, Agfa Supply Agreement, Trebla Supply Agreement, Leases and Assumed Contracts to Buyer (the "Assignment Order"). Except for Buyer's right to assume payments due from Seller under the Franchise Agreements, Developer Agreements, Kodak Supply Agreement, Agfa Supply Agreement, Trebla Supply Agreement and Assumed Contracts in exchange for a credit toward the Purchase Price payment as provided in Section 5.3 of this Agreement, Seller shall be responsible for the payment, at or prior to Closing of any amounts necessary to cure any defaults which exist at Closing under the Franchise Agreements, Developer Agreements, Management Agreements, Kodak Supply Agreement, Agfa Supply Agreement, Trebla Supply Agreement and Assumed Contracts. Notwithstanding the foregoing, if one or more parties to any non-supply related executory contracts asserts a claim or files an objection to Seller's assumption and assignment of their respective contract(s) to Buyer based on a claim or claims which in the aggregate exceed $50,000, which are determined to be valid after notice and hearing and which Seller is unwilling to cure, then the parties shall proceed to Closing without the affected agreement(s) with an abatement to the Purchase Price equal to the percentage reduction in actual collections over the previous 12 months, as a result of the loss of the affected agreements. For example, if the affected agreements represent 2% of Seller's actual collections during the 12 months immediately preceding Closing, then Buyer would be entitled to a 2% reduction in the Purchase Price. If the claims exceed $200,000, the Seller may, at its sole option, terminate this Agreement and refund the Deposit to Buyer, without further liability to Buyer. Buyer shall receive a dollar for dollar credit to the Purchase Price for the net book value of any Account Receivable or Note Receivable associated with any affected agreement, which is not assigned to Buyer and the affected Account Receivable and/or Note Receivable shall not be assigned to Buyer. Buyer may require, at its sole option, that Seller reject any affected contract pursuant to Section 6.1.4 of this Agreement. Buyer shall be responsible for providing adequate assurance of its ability to perform the obligations of Seller under these agreements following Closing. Seller's reasonable commercial efforts shall not require Seller to bear any costs associated with any time, expense or travel of Buyer, its employees, attorneys, accountants or other professionals or agents, or any other costs of Buyer.
6.1.4 Seller shall use commercially reasonable efforts, at its sole cost and expense, to file and obtain approval of the motion(s) to reject those executory contracts identified on Schedule 6.1.4.
6.1.5 From and after the date of this Agreement, Seller shall not take any action or fail to take any action, which action or failure to act would reasonably be expected to (i) prevent or impede the consummation of the transactions contemplated in this Agreement, or (ii) result in (A) the reversal, avoidance, revocation, vacating or modification (in any manner which would reasonably be expected to materially and adversely affect Buyer's rights hereunder) or (B) the entry of a stay pending appeal, in the cases of each of sub-clauses (A) or (B) of this Section, with respect to the Approval Order, the Cash Collateral Order, the Assignment Order; provided, however, that nothing contained herein will in any way limit Seller's ability to provide notice of the Approval Motion and to comply with requests for information from potential competing bidders for the Assets so long as it complies with the provisions of Section 6.2 and 6.3.
Appears in 1 contract
Samples: Senior Subordinate Superpriority Secured Debtor in Possession Credit Agreement (ProSomnus, Inc.)
Bankruptcy Covenants. 6.1.1 Immediately after the execution of this Agreement, Seller shall:
6.1.1.1 continue to operate its business from and after (a) Within three Business Days following the commencement of the Chapter Bankruptcy Cases, Sellers will, and will cause their applicable Subsidiaries to, at their sole cost and expense, file a motion to obtain an order, pursuant to 11 Case;U.S.C. Sections 105, 363, and 365, to approve the Acquisition, in form and substance reasonably acceptable to Purchaser and Nucentrix, but including the express terms of the Approval Order as defined and on the terms contained herein (the "Approval Motion"). Sellers will, and will cause their applicable Subsidiaries to, use their best efforts to obtain the Approval Order on or before November 17, 2003.
6.1.1.2 (b) Immediately following the commencement of the Bankruptcy Cases, Sellers will, and will cause their applicable Subsidiaries to, at their sole cost and expense, file a motion, pursuant to 11 U.S.C. Sections 105, 363, and 365 365, substantially in the form attached hereto as Exhibit C, including all exhibits thereto, to approve the sale of the Assets to Buyer pursuant to this Agreement, including the overbidding procedures in Section 6.2 and break-up fee in Section 6.3 Bidding Procedures Order (the "Approval Bid Procedures Motion");
6.1.1.3 file a motion (the "Cash Collateral Motion") for emergency determination for approval of . Sellers will, and authorizing Sellerwill cause their applicable Subsidiaries to, as borrower, to use cash collateral, such motion in form and substance reasonably acceptable to Buyer. Seller shall use commercially reasonable their best efforts to obtain an order (the "Cash Collateral Order") within 10 days of the date of this Agreement and a final order within 30 days of the date of this Agreement, and approval of the Approval Motion (the "Approval Order") within 45 days of the date of this AgreementBidding Procedures Order on or before September 26, which orders shall each be in form and substance reasonably acceptable to Buyer, provided that the Approval Order shall be in a form substantially in conformity with the form of order attached as Schedule 6.1.1.3 and the Cash Collateral Order shall, among other customary terms and provisions, be in form and substance acceptable to Buyer, with only such changes to such orders as shall be agreed to by all of the parties in writing2003.
6.1.2 Seller shall promptly (c) Sellers will provide Buyer with drafts of Purchaser and its Representatives the opportunity, and sufficient time, to review and comment on all documents, motions, orders, filings or pleadings that Seller proposes to Sellers file with the Bankruptcy Court which relate to the consummation or approval of the Acquisition and this Agreement, the Cash Collateral Motion Approval Motion, the Bid Procedures Motion, related orders, or any other provision of this Agreementherein or therein, and will provide Buyer with incorporate all reasonable opportunity to review comments of Purchaser and approve such proposed filings as reasonably practicalits Representatives. Seller shall Sellers will also promptly (within 24 hours) provide Buyer Purchaser with facsimile or electronic copies of all pleadings received by or served by or upon Seller the Sellers in connection with its Bankruptcy Case, which which, to the Knowledge of Sellers, have not otherwise been served on BuyerPurchaser.
6.1.3 Seller shall use commercially reasonable efforts to obtain, at its sole cost and expense, the entry of a final order authorizing Seller to assign the Franchise Agreements, Developer Agreements, Management Agreements, Kodak Supply Agreement, Agfa Supply Agreement, Trebla Supply Agreement, Leases and Assumed Contracts to Buyer (the "Assignment Order"). Except for Buyer's right to assume payments due from Seller under the Franchise Agreements, Developer Agreements, Kodak Supply Agreement, Agfa Supply Agreement, Trebla Supply Agreement and Assumed Contracts in exchange for a credit toward the Purchase Price payment as provided in Section 5.3 of this Agreement, Seller shall be responsible for the payment, at or prior to Closing of any amounts necessary to cure any defaults which exist at Closing under the Franchise Agreements, Developer Agreements, Management Agreements, Kodak Supply Agreement, Agfa Supply Agreement, Trebla Supply Agreement and Assumed Contracts. Notwithstanding the foregoing, if one or more parties to any non-supply related executory contracts asserts a claim or files an objection to Seller's assumption and assignment of their respective contract(sd) to Buyer based on a claim or claims which in the aggregate exceed $50,000, which are determined to be valid after notice and hearing and which Seller is unwilling to cure, then the parties shall proceed to Closing without the affected agreement(s) with an abatement to the Purchase Price equal to the percentage reduction in actual collections over the previous 12 months, as a result of the loss of the affected agreements. For example, if the affected agreements represent 2% of Seller's actual collections during the 12 months immediately preceding Closing, then Buyer would be entitled to a 2% reduction in the Purchase Price. If the claims exceed $200,000, the Seller may, at its sole option, terminate this Agreement and refund the Deposit to Buyer, without further liability to Buyer. Buyer shall receive a dollar for dollar credit to the Purchase Price for the net book value of any Account Receivable or Note Receivable associated with any affected agreement, which is not assigned to Buyer and the affected Account Receivable and/or Note Receivable shall not be assigned to Buyer. Buyer may require, at its sole option, that Seller reject any affected contract pursuant to Section 6.1.4 of this Agreement. Buyer shall be responsible for providing adequate assurance of its ability to perform the obligations of Seller under these agreements following Closing. Seller's reasonable commercial efforts shall not require Seller to bear any costs associated with any time, expense or travel of Buyer, its employees, attorneys, accountants or other professionals or agents, or any other costs of Buyer.
6.1.4 Seller shall use commercially reasonable efforts, at its sole cost and expense, to file and obtain approval of the motion(s) to reject those executory contracts identified on Schedule 6.1.4.
6.1.5 From and after the commencement of the Bankruptcy Case, Sellers will, and will cause their applicable Subsidiaries to, continue to operate their business as a debtor in possession pursuant to Sections 1107 and 1108 of the Bankruptcy Code.
(e) During the period from the date of this Agreementhereof until the Closing, Seller Sellers shall not take any action or fail and shall not permit their Subsidiaries to take any action, which action or failure to act would reasonably be expected to (i) prevent or impede actions outside the consummation ordinary and usual course of business without the approval of the transactions contemplated in this Agreement, or (ii) result in (A) the reversal, avoidance, revocation, vacating or modification (in any manner which would reasonably be expected Bankruptcy Court after written notice to materially and adversely affect Buyer's rights hereunder) or (B) the entry of a stay pending appeal, in the cases of each of sub-clauses (A) or (B) of this Section, with respect to the Approval Order, the Cash Collateral Order, the Assignment Order; provided, however, that nothing contained herein will in any way limit Seller's ability to provide notice of the Approval Motion and to comply with requests for information from potential competing bidders for the Assets so long as it complies with the provisions of Section 6.2 and 6.3Purchaser.
Appears in 1 contract
Samples: Asset Purchase Agreement (Nucentrix Broadband Networks Inc)
Bankruptcy Covenants. 6.1.1 Immediately (a) Each Seller shall use commercially reasonable efforts to consult with Xxxxx and its Representatives upon Xxxxx’s reasonable request concerning the Sale Order and provide Buyer with copies of requested applications, pleadings, notices, proposed Orders and other documents relating to the Purchased Assets as soon as reasonably practicable prior to any submission thereof to the Bankruptcy Court. Each Seller further covenants and agrees that, after the execution Closing, the terms of this Agreement, Seller shall:
6.1.1.1 continue any reorganization plan it submits to operate its business from and after the commencement Bankruptcy Court for confirmation or sanction shall not prevent or interfere with the consummation or performance of the Chapter 11 Case;
6.1.1.2 file a motion, pursuant to 11 U.S.C. Sections 105, 363, and 365 to approve the sale of the Assets to Buyer pursuant to transactions contemplated by this Agreement, including any transaction contemplated by or approved pursuant to the overbidding procedures in Section 6.2 Sale Order.
(b) Any motions filed by any Seller or Seller Affiliate with, and break-up fee in Section 6.3 (any proposed Orders submitted by any Seller or Seller Affiliate to, the "Approval Motion");
6.1.1.3 file a motion (Bankruptcy Court seeking authorization after the "Cash Collateral Motion") for emergency determination for approval of and authorizing Seller, as borrower, date hereof to use cash collateral, such motion assume or reject any Executory Contracts shall be satisfactory in form and substance reasonably acceptable to Buyer. Each Seller shall use consult with, and give due consideration to the views and concerns of, Buyer prior to compromising or commencing any Action with respect to any material payment required to be made under the Bankruptcy Code to effectuate the assumption of any such Contract, including using commercially reasonable efforts to obtain an order provide five (the "Cash Collateral Order"5) within 10 days days’ notice of the date of this Agreement and a final order within 30 days of the date of this Agreement, and approval of the Approval Motion (the "Approval Order") within 45 days of the date of this Agreement, which orders shall each be in form and substance reasonably acceptable any such compromise or Action to Buyer, provided that the Approval Order shall be in a form substantially in conformity with the form of order attached as Schedule 6.1.1.3 and the Cash Collateral Order shall, among other customary terms and provisions, be in form and substance acceptable to Buyer, with only such changes to such orders as shall be agreed to by all of the parties in writing.
6.1.2 Seller shall promptly provide Buyer with drafts of all documents, motions, orders, filings or pleadings that Seller proposes to file with the Bankruptcy Court which relate to the consummation or approval of this Agreement, the Cash Collateral Motion or any other provision of this Agreement, and will provide Buyer with reasonable opportunity to review and approve such proposed filings as reasonably practical. Seller shall also promptly (within 24 hours) provide Buyer with facsimile copies of all pleadings received by or served by or upon Seller in connection with its Bankruptcy Case, which have not otherwise been served on Buyer.
6.1.3 Seller (c) No later than ten (10) days after the Execution Date, Sellers shall use commercially reasonable efforts to obtain, at its sole cost and expense, the entry of a final order authorizing Seller to assign the Franchise Agreements, Developer Agreements, Management Agreements, Kodak Supply Agreement, Agfa Supply Agreement, Trebla Supply Agreement, Leases and Assumed Contracts deliver to Buyer (the "Assignment Order"). Except for Buyer's right to assume payments due from Seller under the Franchise Agreements, Developer Agreements, Kodak Supply Agreement, Agfa Supply Agreement, Trebla Supply Agreement and Assumed Contracts in exchange for a credit toward the Purchase Price payment as provided in Section 5.3 of this Agreement, Seller shall be responsible for the payment, at or prior to Closing of any amounts necessary to cure any defaults which exist at Closing under the Franchise Agreements, Developer Agreements, Management Agreements, Kodak Supply Agreement, Agfa Supply Agreement, Trebla Supply Agreement and Assumed Contracts. Notwithstanding the foregoing, if one or more parties to any non-supply related executory contracts asserts a claim or files an objection to Seller's assumption and assignment of their respective contract(s) to Buyer based on a claim or claims which in the aggregate exceed $50,000, which are determined to be valid after notice and hearing and which Seller is unwilling to cure, then the parties shall proceed to Closing without the affected agreement(s) with an abatement to the Purchase Price equal to the percentage reduction in actual collections over the previous 12 months, as a result copies of the loss of the affected agreements. For example, if the affected agreements represent 2% of Seller's actual collections during the 12 months immediately preceding Closing, then Buyer would be entitled to a 2% reduction updated Schedules and Exhibits that resolve open or unresolved items identified therein (including in the Purchase Price. If the claims exceed $200,000, the Seller may, at its sole option, terminate this Agreement and refund the Deposit to Buyer, without further liability to Buyerfootnotes). Buyer shall receive a dollar for dollar credit to the Purchase Price for the net book value review such draft Schedules and Exhibits and provide any objections within ten (10) days of any Account Receivable or Note Receivable associated with any affected agreement, which is not assigned to Buyer and the affected Account Receivable and/or Note Receivable shall not be assigned to Buyer. Buyer may require, at its sole option, that Seller reject any affected contract pursuant to Section 6.1.4 of this Agreement. Buyer shall be responsible for providing adequate assurance of its ability to perform the obligations of Seller under these agreements following Closing. Seller's reasonable commercial efforts shall not require Seller to bear any costs associated with any time, expense or travel of Buyer, its employees, attorneys, accountants or other professionals or agents, or any other costs of Buyertheir receipt.
6.1.4 Seller shall use commercially reasonable efforts, at its sole cost and expense, to file and obtain approval of the motion(s) to reject those executory contracts identified on Schedule 6.1.4.
6.1.5 From and after the date of this Agreement, Seller shall not take any action or fail to take any action, which action or failure to act would reasonably be expected to (i) prevent or impede the consummation of the transactions contemplated in this Agreement, or (ii) result in (A) the reversal, avoidance, revocation, vacating or modification (in any manner which would reasonably be expected to materially and adversely affect Buyer's rights hereunder) or (B) the entry of a stay pending appeal, in the cases of each of sub-clauses (A) or (B) of this Section, with respect to the Approval Order, the Cash Collateral Order, the Assignment Order; provided, however, that nothing contained herein will in any way limit Seller's ability to provide notice of the Approval Motion and to comply with requests for information from potential competing bidders for the Assets so long as it complies with the provisions of Section 6.2 and 6.3.
Appears in 1 contract
Samples: Asset Purchase Agreement
