Bankruptcy Covenants. (a) Subject to Section 9.10, Parent agrees to support and use its reasonable best efforts, and agrees to cause its Subsidiaries to use their respective reasonable best efforts, to consummate the transactions contemplated herein and in the Plan, to timely and properly solicit acceptances for and confirmation of the Plan, to prosecute the Chapter 11 Cases and, without limitation to the foregoing, to take the following actions: (i) commencing the solicitation of votes to accept or reject the Plan in accordance with Bankruptcy Code and applicable nonbankruptcy Law no later than five (5) Business Days after the date hereof; (ii) commencing the Chapter 11 Cases as promptly as practicable after determining, in Parent’s sole and reasonable discretion, that sufficient acceptances of the Plan may have been obtained; (iii) filing and seeking Bankruptcy Court orders approving all customary and otherwise necessary “first day” motions, including a motion requesting approval of a cash collateral stipulation; and (iv) seeking, as soon as practicable after the commencement of the Chapter 11 Cases (and in no event later than 14 days after commencement of the Chapter 11 Cases) entry of an order of the Bankruptcy Court (“Break-Up Fee Order”) (1) deeming any claim of C/G or Spyglass for any portion of the Break- Up Fee that is unpaid in the event the escrow is not available as contemplated in Section 9.10(f), and allowing such claim in full as, a superpriority administrative expense of Parent and its Subsidiaries in the Chapter 11 Cases, junior in priority only to any DIP financing or any Cash Collateral Priority Obligation and any carve-outs for chapter 11 professional fees and expenses and (2) approving the payment of any unpaid fees and expenses owed by Parent to C/G and Spyglass pursuant to the Letter of Intent as administrative expenses of Parent and its Subsidiaries entitled to administrative expense priority. (b) Subject to Section 9.10, C/G and Spyglass agree to support and use their respective reasonable best efforts to support, and use their respective reasonable best efforts to consummate, the transactions contemplated herein and under the Plan. (c) Subject to Section 9.10, (i) each of Parent, C/G and Spyglass will not (and Parent shall cause its Subsidiaries to not) propose, agree to, consent to, provide any support to, or participate, directly or indirectly, in the formulation of any modification of the Plan, unless such modification has been agreed to by all parties to this Agreement and the Administrative Agent,
Appears in 1 contract
Samples: Investment Agreement
Bankruptcy Covenants. (a) Subject to Section 9.10, Parent agrees to support and use its reasonable best efforts, and agrees to cause its Subsidiaries to use their respective reasonable best efforts, to consummate the transactions contemplated herein and in the Plan, to timely and properly solicit acceptances for and confirmation of the Plan, to prosecute the Chapter 11 Cases and, without limitation Immediately subsequent to the foregoingexecution of this Agreement, to take the following actions:
Sellers shall file (i) commencing a motion, pursuant to 11 U.S.C. ss.sx. 005, 363, and 365 to approve the solicitation sale of votes the Acquired Assets to accept or reject the Plan in accordance with Bankruptcy Code and applicable nonbankruptcy Law no later than five Buyer pursuant to this Agreement (5) Business Days after the date hereof;
"Approval Motion"), (ii) commencing a motion (the Chapter 11 Cases as promptly as practicable after determining, in Parent’s sole and reasonable discretion, that sufficient acceptances "Provision Motion") for emergency determination of approval of the Plan may have been obtained;
Exclusivity Provision (as defined in Section 4.7 hereof), the Overbid Provisions (as defined in Section 4.8 hereof) and the Breakup Fee (as defined in Section 4.9 hereof) provided for in this Agreement, and (iii) filing and seeking Bankruptcy Court orders approving all customary and otherwise necessary “first day” motions, including a motion requesting (the "DIP Motion") for an order approving and authorizing the Sellers, as borrowers, to enter into a Debtors in Possession Financing Agreement (the "DIP Loan Agreement") with the Buyer as lender, each of such motions in form and substance reasonably acceptable to the Buyer. The Sellers shall use their commercially reasonable efforts to obtain an order approving the Provision Motion (the "Provision Order") within 10 days of the date of this Agreement, and approval of a cash collateral stipulation; and
the Approval Motion (ivthe "Approval Order") seeking, as soon as practicable after the commencement within 45 days of the Chapter 11 Cases (date of this Agreement, which orders shall each be in form and substance reasonably acceptable to the Buyer, provided that the Approval Order shall be in no event later than 14 days after commencement a form substantially in conformity with the form of order attached hereto as EXHIBIT C, with only such changes to such orders as shall be agreed to by all of the Chapter 11 Cases) entry of an order of the Bankruptcy Court (“Break-Up Fee Order”)
(1) deeming any claim of C/G or Spyglass for any portion of the Break- Up Fee that is unpaid Parties in the event the escrow is not available as contemplated in Section 9.10(f), and allowing such claim in full as, a superpriority administrative expense of Parent and its Subsidiaries in the Chapter 11 Cases, junior in priority only to any DIP financing or any Cash Collateral Priority Obligation and any carve-outs for chapter 11 professional fees and expenses and (2) approving the payment of any unpaid fees and expenses owed by Parent to C/G and Spyglass pursuant to the Letter of Intent as administrative expenses of Parent and its Subsidiaries entitled to administrative expense prioritywriting.
(b) Subject The Sellers shall promptly provide the Buyer with drafts of all documents, motions, orders, filings or pleadings that the Sellers propose to Section 9.10file with the Bankruptcy Court which relate to the consummation or approval of this Agreement, C/G and Spyglass agree to support and use their respective reasonable best efforts to supportthe Ancillary Agreements, the DIP Motion, the Provision Motion or any provision herein or therein, and use their respective will provide the Buyer with reasonable best efforts opportunity to consummatereview and approve such filings as reasonably practical. The Sellers shall also promptly (within 24 hours) provide the Buyer with facsimile copies of all pleadings received by or served by or upon the Sellers in connection with its Bankruptcy Case, which have not otherwise been served on the transactions contemplated herein and under the PlanBuyer.
(c) Subject The Sellers shall use their commercially reasonable efforts to Section 9.10obtain, at their sole cost and expense, the entry of a final order authorizing the Sellers to assume and assign the Assigned Contracts and Leases to the Buyer (i) each of Parentthe "Assignment Order"). The Sellers shall be responsible for the payment, C/G and Spyglass will not (and Parent shall cause its Subsidiaries at or prior to not) propose, agree to, consent to, provide any support to, or participate, directly or indirectly, in the formulation Closing of any modification amounts necessary to cure any defaults which exist on the Closing Date under the Assigned Contracts and Leases, and the Buyer shall be responsible for providing adequate assurance of its ability to perform the obligations of the Plan, unless such modification has been agreed to by all parties to this Agreement Sellers under the Assigned Contracts and Leases following the Administrative Agent,Closing.
Appears in 1 contract
Bankruptcy Covenants. (a) Subject Seller shall promptly provide Purchaser with proposed final drafts of all documents, motions, orders, filings or pleadings that Seller proposes to file with the Bankruptcy Court which relate to the approval or consummation of the transactions contemplated hereby, this Agreement, or any provision therein or herein, and will provide Purchaser and its counsel with reasonable opportunity, but in any event not less than 48 hours before filing such papers, to review and comment on such filings.
(b) Without limiting the generality of Section 9.106.10(a) hereof, Parent agrees within three (3) business days after execution of this Agreement, Seller shall file with the Bankruptcy Court a motion and supporting papers (the "Procedures Motion") in substantially the form attached hereto as Exhibit A to support this Agreement and satisfactory to Purchaser and its counsel, seeking the Bankruptcy Court's entry of an order (the "Procedures Order"), which shall include, without limitation, the following provisions (except as waived in writing or on the record at the hearing on the Procedures Motion by Seller and Purchaser):
(i) scheduling the date(s) for the auction and hearing (the "Sale Hearing") to consider entry of the Sale Order; and
(ii) the establishment of commercially reasonable bidding procedures and requirements regarding competing bids ("Competing Bids"), including (among other things) (x) a minimum initial incremental bidding requirement of not less than $750,000 greater overall value to Seller than that provided by the Proposed Transaction, (y) subsequent incremental bidding requirements of at least $200,000 in excess of the higher of (A) the last bid or (B) the initial Competing Bid amount, and (z) in the event a Competing Bid is chosen by Seller as the highest or best offer for the Purchased Assets pursuant to the requirements and provisions of the Procedures Order (an "Alternative Transaction"), payment to Purchaser of a break-up fee in the amount of $225,000 and expense reimbursement not to exceed $112,500, which payments shall constitute an administrative expense of Seller pursuant to section 503(b) of the Bankruptcy Code entitled to a first priority under section 507(a)(1) payable from the sales proceeds of any Alternative Transaction or from other sources.
(c) Seller shall take such steps necessary to schedule a hearing to approve the Procedures Order on reasonable notice sufficient to satisfy the conditions set forth herein, the requirements of the Bankruptcy Code and related Bankruptcy Rules.
(d) Without limiting the generality of section 6.10(a) hereof, Seller shall use its reasonable best effortsefforts to obtain the Bankruptcy Court's entry of the Sale Order, and agrees substantially in the form attached hereto as Exhibit B to cause its Subsidiaries to use their respective reasonable best effortsthis Agreement, to consummate approving the transactions contemplated herein within twenty (20) days following the date hereof. The Sale Order shall be in form and in the Plan, substance reasonably satisfactory to timely Purchaser and properly solicit acceptances for its counsel and confirmation of the Plan, to prosecute the Chapter 11 Cases andshall provide, without limitation to the foregoinglimitation, to take the following actionsthat:
(i) commencing as of the solicitation Closing Date, the transactions contemplated by this Agreement will effect a legal, valid, enforceable and effective sale and transfer of votes the Purchased Assets to accept or reject Purchaser and shall vest Purchaser with title to the Plan in accordance with Bankruptcy Code Purchased Assets free and applicable nonbankruptcy Law no later than five (5) Business Days after the date hereofclear of all Liens;
(ii) commencing the Chapter 11 Cases as promptly as practicable after determining, in Parent’s sole consideration provided by Purchaser pursuant to this Agreement constitutes reasonably equivalent value and reasonable discretion, that sufficient acceptances of fair consideration for the Plan may have been obtainedPurchased Assets;
(iii) filing Purchaser is a good faith purchaser of the Purchased Assets, as that term is used in section 363(m) of the Bankruptcy Code, and seeking is entitled to the protections provided by such section;
(iv) as of the Closing Date, the Purchased Contracts and Leases will have been duly assigned to Purchaser in accordance with sections 365 and 105 of the Bankruptcy Court orders approving Code;
(v) Seller shall be solely responsible for any and all customary Cure Costs relating to the assumption and otherwise necessary “first day” motions, including a motion requesting approval assignment of a cash collateral stipulationthe Purchased Contracts and Leases; and
(ivvi) seekingthe Purchased Contracts and Leases will be transferred to, as soon as practicable after and remain in full force and effect for the commencement benefit of the Chapter 11 Cases Purchaser (or its designated transferee(s)), notwithstanding any provision in any such contract or lease or in applicable law (including those described in sections 365(b)(2) and in no event later than 14 days after commencement of the Chapter 11 Cases(f) entry of an order of the Bankruptcy Court (“Break-Up Fee Order”)
(1Code) deeming that prohibits, restricts or limits in any claim of C/G way such assignment or Spyglass for any portion of the Break- Up Fee that is unpaid in the event the escrow is not available as contemplated in Section 9.10(f), and allowing such claim in full as, a superpriority administrative expense of Parent and its Subsidiaries in the Chapter 11 Cases, junior in priority only to any DIP financing or any Cash Collateral Priority Obligation and any carve-outs for chapter 11 professional fees and expenses and (2) approving the payment of any unpaid fees and expenses owed by Parent to C/G and Spyglass pursuant to the Letter of Intent as administrative expenses of Parent and its Subsidiaries entitled to administrative expense prioritytransfer.
(be) Subject Seller shall take such steps necessary to Section 9.10, C/G and Spyglass agree schedule the Sale Hearing on reasonable notice sufficient to support and use their respective reasonable best efforts to support, and use their respective reasonable best efforts to consummatesatisfy the conditions set forth herein, the transactions contemplated herein requirements of the Bankruptcy Code and under the Planrelated Bankruptcy Rules.
(cf) Subject to Section 9.10In the event an appeal is taken, (i) each or a stay pending appeal is requested or reconsideration is sought, from the Sale Order, Seller shall promptly after becoming aware thereof notify Purchaser of Parentsuch notice of appeal, C/G and Spyglass will not request for a stay pending appeal or motion for reconsideration. Seller shall also provide Purchaser with written notice (and Parent shall cause its Subsidiaries to notcopies) propose, agree to, consent to, provide any support to, or participate, directly or indirectly, in the formulation of any modification other or further notice of the Planappeal, unless motion or application filed in connection with any appeal from or application for reconsideration of, either of such modification has been agreed to by all parties to this Agreement orders and the Administrative Agent,any related briefs.
Appears in 1 contract
Bankruptcy Covenants. (a) Subject to Section 9.10, Parent agrees to support and use its reasonable best efforts, and agrees to cause its Subsidiaries to use their respective reasonable best efforts, to consummate the transactions contemplated herein and in the Plan, to timely and properly solicit acceptances for and confirmation of the Plan, to prosecute the Chapter 11 Cases and, without limitation Not later than two (2) business days subsequent to the foregoingexecution of this Agreement, to take the following actions:
Sellers shall file (i) commencing a motion, pursuant to 11 U.S.C. 'SS''SS'105, 363, and 365 to approve the solicitation sale of votes the Acquired Assets to accept or reject the Plan Buyer pursuant to this Agreement (the "Approval Motion") and (ii) a motion (the "Provision Motion") for approval of the Overbid Provisions, the Breakup Fee and all of the other provisions of Article IV of this Agreement, each of such motions in form and substance reasonably acceptable to the Buyer. The Sellers shall use its best efforts to obtain orders (i) approving the Provision Motion (the "Provision Order") within twenty (20) days of the date of the Filing Date and (ii) approving the Approval Motion (the "Approval Order") within sixty-five (65) days of the date of this Agreement, provided that the Provision Order shall be in a form in conformity with the form of order attached hereto as Exhibit A in all material respects and the Approval Order shall be in a form in conformity with the form of order attached hereto as Exhibit B in all material respects, with only such changes to such orders as shall be agreed to by the Sellers and the Buyer. All of the Sellers' obligations and liabilities to the Buyer arising upon the Buyer's termination of this Agreement in accordance with Article VII hereof or in the event that the Buyer otherwise does not close on the purchase of the Acquired Assets for any reason (including but not limited to the Sellers' obligations to pay the Breakup Fee and return of the Deposit to the Buyer) shall have administrative expense priority under 'SS''SS'503(b) and 507(a) of the Bankruptcy Code Code.
(b) The Sellers shall promptly provide the Buyer with drafts of all documents, motions, orders, filings or pleadings that the Sellers propose to file with the Bankruptcy Court which relate to the consummation or approval of this Agreement, the Ancillary Agreements, the Provision Motion or any provision herein or therein, and applicable nonbankruptcy Law no later than five will provide the Buyer with reasonable opportunity to review and approve such filings as reasonably practical. The Sellers shall also promptly (5within 1 business day) Business Days provide the Buyer with facsimile copies of all pleadings received by or served by or upon the Sellers in connection with its Bankruptcy Case which have not otherwise been served on the Buyer (as shown on the certificate of service filed therewith) and as otherwise requested by the Buyer.
(c) The Sellers shall use their reasonable best efforts to obtain, at their sole cost and expense, the entry of an order authorizing the Sellers to assume and assign the Assigned Contracts and Leases to the Buyer at the Closing(the "Assignment Order"), such order contemplated to be included as part of the Approval Order in such other form as shall be reasonably satisfactory to the Buyer. The Sellers shall be responsible for the payment of any amounts necessary to cure any defaults that exist on the Closing Date under the Assigned Contracts and Leases. The Buyer shall, from time to time prior to the Closing, have the right to add or delete any executory contract or unexpired lease to or from, or otherwise modify, the list of the Assigned Contracts and Leases, except by adding any of the contracts listed on Schedule 1.1(a)(iv)(B). Notice of the proposed assumption and assignment of the Assigned Contracts and Leases shall be provided in accordance with the Provision Order.
(d) From and after the date hereof;
, the Sellers shall not, and shall ensure that none of the Subsidiaries, take any action or fail to take any action, which action or failure to act would reasonably be expected to result in (iiA) commencing the Chapter 11 Cases as promptly as practicable after determiningreversal, 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 Parent’s sole and reasonable discretionthe cases of each of sub-clauses (A) or (B) of this Section, with respect to the Approval Order, the Assignment Order or the Provision Order; provided, however, that sufficient acceptances nothing contained herein will in any way limit the Seller's ability to provide notice of the Plan may have been obtained;
(iii) filing Approval Motion and seeking Bankruptcy Court orders approving all customary and otherwise necessary “first day” motionsto comply with requests for information from potential competing bidders for the Acquired Assets so long as it is in compliance with the provisions of Section 4.8 hereof, including a motion requesting approval of a cash collateral stipulationor to comply with applicable law; and
(ive) seeking, as soon as practicable From and after the commencement of the Chapter 11 Cases Case, the Sellers shall (A) continue to operate their businesses as debtors in possession pursuant to Sections 1107 and in no event later than 14 days after commencement of the Chapter 11 Cases) entry of an order 1108 of the Bankruptcy Court Code, (“Break-Up Fee Order”)
(1B) deeming any claim provide the Buyer with a true and accurate copy of C/G or Spyglass for any portion all monthly reports provided to the office of the Break- Up Fee that is unpaid United States Trustee with respect to Seller in the event the escrow is not available as contemplated in Section 9.10(f), and allowing such claim in full as, a superpriority administrative expense of Parent and its Subsidiaries in the Chapter 11 Cases, junior Case(s) and the Seller shall not be delinquent in priority only to providing any DIP financing or any Cash Collateral Priority Obligation and any carve-outs for chapter 11 professional fees and expenses such reports and (2C) approving the payment pay all of any unpaid fees and expenses owed by Parent to C/G and Spyglass pursuant to the Letter of Intent as administrative expenses of Parent and its Subsidiaries entitled to administrative expense prioritytheir postpetition obligations when due.
(b) Subject to Section 9.10, C/G and Spyglass agree to support and use their respective reasonable best efforts to support, and use their respective reasonable best efforts to consummate, the transactions contemplated herein and under the Plan.
(c) Subject to Section 9.10, (i) each of Parent, C/G and Spyglass will not (and Parent shall cause its Subsidiaries to not) propose, agree to, consent to, provide any support to, or participate, directly or indirectly, in the formulation of any modification of the Plan, unless such modification has been agreed to by all parties to this Agreement and the Administrative Agent,
Appears in 1 contract
Bankruptcy Covenants. (a) Subject to Section 9.10, Parent agrees to support and use its reasonable best efforts, and agrees to cause its Subsidiaries to use their respective reasonable best efforts, to consummate the transactions contemplated herein and in the Plan, to timely and properly solicit acceptances for and confirmation of the Plan, to prosecute the Chapter 11 Cases and, without limitation to the foregoing, to take the following actions:
(i) commencing Immediately subsequent to the solicitation execution of votes this Agreement, Seller shall (at its sole cost and expense) file (A) a motion, pursuant to accept 11 U.S.C. Sections 105, 363, and 365 to approve the sale of the Purchased Assets to TransWestern pursuant to this Agreement (the "Approval Motion"), (B) a motion (the "Provision Motion") for emergency determination of approval of the Exclusivity Provision (as defined in Section 4.1(c) hereof), and the Overbid Provisions (as defined in Section 4.1(d) hereof) provided for in this Agreement. Seller shall use its commercially reasonable efforts to obtain an order approving the Provision Motion (the "Provision Order") within nine (9) days from (and including) the date of this Agreement, and approval of the Approval Motion (the "Approval Order") within sixteen (16) days from (and including) the date of this Agreement, or, in the event Seller is able to obtain the Good Faith Ruling with respect to the Approval Order then at least prior to the Closing Date hereof, which orders shall each be in form and substance reasonably acceptable to TransWestern.
(ii) Seller shall promptly provide TransWestern with drafts of all documents, motions, orders, filings or reject pleadings that Seller proposes to file with the Plan Bankruptcy Court which relate to the consummation or approval of this Agreement, the Approval Motion, Provision Motion, related orders, or any provision herein or therein, and will provide TransWestern with reasonable opportunity to review and comment with respect to such filings as reasonably practical. Seller shall also promptly (within 24 hours) provide TransWestern with facsimile copies of all pleadings received by or served by or upon Seller in accordance connection with its Bankruptcy Code Case, which have not otherwise been served on TransWestern.
(iii) Seller shall use commercially reasonable efforts to obtain, at its sole cost and applicable nonbankruptcy Law no later expense, the entry of a final order authorizing Seller to assign the Assigned Contracts and Purchased Assets to TransWestern (the "Assignment Order") within sixteen (16) days from (and including) the date of this Agreement, or, in the event Seller is able to obtain the Assignment Order Ruling with respect to the Assignment Order then at least prior to the Closing Date hereof. Other than five the Ad Ideas Payment and subject to the Assignment Order, Seller shall be responsible for the payment, at or prior to Closing, of any amounts necessary to cure any defaults which exist on the Closing Date under the Assigned Contracts, and TransWestern shall be responsible for providing adequate assurance of its ability to perform the obligations of Seller under the Assigned Contracts following the Closing.
(5iv) Business Days From and after the date hereof;, Seller shall not take any action or fail to take any action, which action or failure to act would reasonably be expected to (A) prevent or impede the consummation of the transactions contemplated by this Agreement in accordance with the terms of this Agreement, or (B) result in (I) the reversal, avoidance, revocation, vacating or modification (in any manner which would reasonably be expected to materially and adversely affect the TransWestern's rights hereunder) or (II) the entry of a stay pending appeal, in the cases of each of sub-clauses
(iiI) commencing or (II) of this section, with respect to the Chapter 11 Cases as promptly as practicable after determiningApproval Order, in Parent’s sole and reasonable discretionthe Assignment Order, or the Provision Order; provided, however, that sufficient acceptances nothing contained herein will in any way limit Seller's ability to provide notice of the Plan may have been obtained;Approval Motion and to comply with requests for information from potential competing bidders for the Purchased Assets, so long as it is in compliance with the provisions of Section 4.1(c) hereof (regarding exclusivity).
(iiiv) filing From and seeking Bankruptcy Court orders approving all customary and otherwise necessary “first day” motions, including a motion requesting approval of a cash collateral stipulation; and
(iv) seeking, as soon as practicable after the commencement of the Chapter 11 Cases (Case, Seller shall continue to operate its business as a debtor in possession pursuant to Sections 1107 and in no event later than 14 days after commencement of the Chapter 11 Cases) entry of an order 1108 of the Bankruptcy Court (“Break-Up Fee Order”)
(1) deeming any claim of C/G or Spyglass for any portion of the Break- Up Fee that is unpaid in the event the escrow is not available as contemplated in Section 9.10(f), and allowing such claim in full as, a superpriority administrative expense of Parent and its Subsidiaries in the Chapter 11 Cases, junior in priority only to any DIP financing or any Cash Collateral Priority Obligation and any carve-outs for chapter 11 professional fees and expenses and (2) approving the payment of any unpaid fees and expenses owed by Parent to C/G and Spyglass pursuant to the Letter of Intent as administrative expenses of Parent and its Subsidiaries entitled to administrative expense priorityCode.
(b) Subject to Section 9.10, C/G and Spyglass agree to support and use their respective reasonable best efforts to support, and use their respective reasonable best efforts to consummate, the transactions contemplated herein and under the Plan.
(c) Subject to Section 9.10, (i) each of Parent, C/G and Spyglass will not (and Parent shall cause its Subsidiaries to not) propose, agree to, consent to, provide any support to, or participate, directly or indirectly, in the formulation of any modification of the Plan, unless such modification has been agreed to by all parties to this Agreement and the Administrative Agent,
Appears in 1 contract
Samples: Asset Purchase Agreement (Transwestern Holdings Lp)
