Bankruptcy Covenants. (a) 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 6.10(a) hereof, 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 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 reasonable best efforts to obtain the Bankruptcy Court's entry of the Sale Order, substantially in the form attached hereto as Exhibit B to this Agreement, approving the transactions contemplated herein within twenty (20) days following the date hereof. The Sale Order shall be in form and substance reasonably satisfactory to Purchaser and its counsel and shall provide, without limitation, that: (i) as of the Closing Date, the transactions contemplated by this Agreement will effect a legal, valid, enforceable and effective sale and transfer of the Purchased Assets to Purchaser and shall vest Purchaser with title to the Purchased Assets free and clear of all Liens; (ii) the consideration provided by Purchaser pursuant to this Agreement constitutes reasonably equivalent value and fair consideration for the Purchased Assets; (iii) Purchaser is a good faith purchaser of the Purchased Assets, as that term is used in section 363(m) of the Bankruptcy Code, and 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 Code; (v) Seller shall be solely responsible for any and all Cure Costs relating to the assumption and assignment of the Purchased Contracts and Leases; and (vi) the Purchased Contracts and Leases will be transferred to, and remain in full force and effect for the benefit of 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 (f) of the Bankruptcy Code) that prohibits, restricts or limits in any way such assignment or transfer. (e) Seller shall take such steps necessary to schedule the Sale Hearing on reasonable notice sufficient to satisfy the conditions set forth herein, the requirements of the Bankruptcy Code and related Bankruptcy Rules. (f) In the event an appeal is taken, 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 such notice of appeal, request for a stay pending appeal or motion for reconsideration. Seller shall also provide Purchaser with written notice (and copies) of any other or further notice of appeal, motion or application filed in connection with any appeal from or application for reconsideration of, either of such orders and any related briefs.
Appears in 1 contract
Bankruptcy Covenants. (a) Seller shall 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 provide Purchaser with proposed final drafts 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 documents, customary and otherwise necessary “first day” motions, ordersincluding a motion requesting approval of a cash collateral stipulation; and
(iv) seeking, filings or pleadings that Seller proposes to file with 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 which relate (“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 approval or consummation Letter of the transactions contemplated hereby, this Agreement, or any provision therein or herein, and will provide Purchaser Intent as administrative expenses of Parent and its counsel with reasonable opportunity, but in any event not less than 48 hours before filing such papers, Subsidiaries entitled to review and comment on such filingsadministrative expense priority.
(b) Without limiting the generality of Subject to Section 6.10(a) hereof9.10, within three (3) business days after execution of this AgreementC/G and Spyglass agree to support and use their respective reasonable best efforts to support, Seller shall file with the Bankruptcy Court a motion and supporting papers (the "Procedures Motion") in substantially the form attached hereto as Exhibit A use their respective reasonable best efforts to 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 limitationconsummate, the following provisions (except as waived in writing or on transactions contemplated herein and under 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 sourcesPlan.
(c) Seller shall take such steps necessary Subject to schedule a hearing to approve the Procedures Order on reasonable notice sufficient to satisfy the conditions set forth hereinSection 9.10, the requirements of the Bankruptcy Code and related Bankruptcy Rules.
(d) Without limiting the generality of section 6.10(a) hereof, Seller shall use reasonable best efforts to obtain the Bankruptcy Court's entry of the Sale Order, substantially in the form attached hereto as Exhibit B to this Agreement, approving the transactions contemplated herein within twenty (20) days following the date hereof. The Sale Order shall be in form and substance reasonably satisfactory to Purchaser and its counsel and shall provide, without limitation, that:
(i) as 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 Closing DatePlan, the transactions contemplated unless such modification has been agreed to by this Agreement will effect a legal, valid, enforceable and effective sale and transfer of the Purchased Assets to Purchaser and shall vest Purchaser with title to the Purchased Assets free and clear of all Liens;
(ii) the consideration provided by Purchaser pursuant parties to this Agreement constitutes reasonably equivalent value and fair consideration for the Purchased Assets;
(iii) Purchaser is a good faith purchaser of the Purchased Assets, as that term is used in section 363(m) of the Bankruptcy Code, and 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 Code;
(v) Seller shall be solely responsible for any and all Cure Costs relating to the assumption and assignment of the Purchased Contracts and Leases; and
(vi) the Purchased Contracts and Leases will be transferred to, and remain in full force and effect for the benefit of 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 (f) of the Bankruptcy Code) that prohibits, restricts or limits in any way such assignment or transfer.
(e) Seller shall take such steps necessary to schedule the Sale Hearing on reasonable notice sufficient to satisfy the conditions set forth herein, the requirements of the Bankruptcy Code and related Bankruptcy Rules.
(f) In the event an appeal is taken, 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 such notice of appeal, request for a stay pending appeal or motion for reconsideration. Seller shall also provide Purchaser with written notice (and copies) of any other or further notice of appeal, motion or application filed in connection with any appeal from or application for reconsideration of, either of such orders and any related briefs.Administrative Agent,
Appears in 1 contract
Samples: Investment Agreement
Bankruptcy Covenants. (a) Seller Immediately subsequent to the execution of this Agreement, the Sellers shall file (i) a motion, pursuant to 11 U.S.C. ss.sx. 005, 363, and 365 to approve the sale of the Acquired Assets to the Buyer pursuant to this Agreement (the "Approval Motion"), (ii) a motion (the "Provision Motion") for emergency determination of approval of the 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) a motion (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 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 the Buyer, provided that the Approval Order shall be in 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 Parties in writing.
(b) The Sellers shall promptly provide Purchaser the Buyer with proposed final drafts of all documents, motions, orders, filings or pleadings that Seller proposes the Sellers propose to file with the Bankruptcy Court which relate to the consummation or approval or consummation of the transactions contemplated hereby, this Agreement, the Ancillary Agreements, the DIP Motion, the Provision Motion or any provision therein herein or hereintherein, and will provide Purchaser and its counsel the Buyer with reasonable opportunity, but in any event not less than 48 hours before filing such papers, opportunity to review and comment on approve such filings.
filings as reasonably practical. The Sellers shall also promptly (bwithin 24 hours) Without limiting provide the generality Buyer with facsimile copies of Section 6.10(a) hereof, within three (3) business days after execution of this Agreement, Seller shall file all pleadings received by or served by or upon the Sellers in connection with the its Bankruptcy Court a motion and supporting papers (the "Procedures Motion") in substantially the form attached hereto as Exhibit A to this Agreement and satisfactory to Purchaser and its counsel, seeking the Bankruptcy Court's entry of an order (the "Procedures Order")Case, which shall include, without limitation, the following provisions (except as waived in writing or have not otherwise been served 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 sourcesBuyer.
(c) Seller The Sellers shall take such steps necessary use their commercially reasonable efforts to schedule a hearing to approve the Procedures Order on reasonable notice sufficient to satisfy the conditions set forth hereinobtain, at their sole cost and expense, the requirements of the Bankruptcy Code and related Bankruptcy Rules.
(d) Without limiting the generality of section 6.10(a) hereof, Seller shall use reasonable best efforts to obtain the Bankruptcy Court's entry of a final order authorizing the Sale Order, substantially in Sellers to assume and assign the form attached hereto as Exhibit B to this Agreement, approving the transactions contemplated herein within twenty (20) days following the date hereof. The Sale Order shall be in form and substance reasonably satisfactory to Purchaser and its counsel and shall provide, without limitation, that:
(i) as of the Closing Date, the transactions contemplated by this Agreement will effect a legal, valid, enforceable and effective sale and transfer of the Purchased Assets to Purchaser and shall vest Purchaser with title to the Purchased Assets free and clear of all Liens;
(ii) the consideration provided by Purchaser pursuant to this Agreement constitutes reasonably equivalent value and fair consideration for the Purchased Assets;
(iii) Purchaser is a good faith purchaser of the Purchased Assets, as that term is used in section 363(m) of the Bankruptcy Code, and is entitled to the protections provided by such section;
(iv) as of the Closing Date, the Purchased Assigned Contracts and Leases will have been duly assigned to Purchaser in accordance with sections 365 and 105 of the Bankruptcy Code;
Buyer (v) Seller the "Assignment Order"). The Sellers shall be solely responsible for the payment, at or prior to Closing of any and all Cure Costs relating amounts necessary to cure any defaults which exist on the assumption and assignment of Closing Date under the Purchased Assigned Contracts and Leases; and
(vi) , and the Purchased Buyer shall be responsible for providing adequate assurance of its ability to perform the obligations of the Sellers under the Assigned Contracts and Leases will be transferred to, and remain in full force and effect for following the benefit of 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 (f) of the Bankruptcy Code) that prohibits, restricts or limits in any way such assignment or transferClosing.
(e) Seller shall take such steps necessary to schedule the Sale Hearing on reasonable notice sufficient to satisfy the conditions set forth herein, the requirements of the Bankruptcy Code and related Bankruptcy Rules.
(f) In the event an appeal is taken, 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 such notice of appeal, request for a stay pending appeal or motion for reconsideration. Seller shall also provide Purchaser with written notice (and copies) of any other or further notice of appeal, motion or application filed in connection with any appeal from or application for reconsideration of, either of such orders and any related briefs.
Appears in 1 contract
Bankruptcy Covenants. (a) Seller Not later than two (2) business days subsequent to the execution of this Agreement, the Sellers shall file (i) a motion, pursuant to 11 U.S.C. 'SS''SS'105, 363, and 365 to approve the sale of the Acquired Assets to the 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.
(b) The Sellers shall promptly provide Purchaser the Buyer with proposed final drafts of all documents, motions, orders, filings or pleadings that Seller proposes the Sellers propose to file with the Bankruptcy Court which relate to the consummation or approval or consummation of the transactions contemplated hereby, this Agreement, the Ancillary Agreements, the Provision Motion or any provision therein herein or hereintherein, and will provide Purchaser and its counsel the Buyer with reasonable opportunity, but in any event not less than 48 hours before filing such papers, opportunity to review and comment approve such filings as reasonably practical. The Sellers shall also promptly (within 1 business day) 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 such filingsthe Buyer (as shown on the certificate of service filed therewith) and as otherwise requested by the Buyer.
(bc) Without limiting The Sellers shall use their reasonable best efforts to obtain, at their sole cost and expense, the generality of Section 6.10(a) hereof, 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 this Agreement and satisfactory to Purchaser and its counsel, seeking the Bankruptcy Court's entry of an order (authorizing the Sellers to assume and assign the Assigned Contracts and Leases to the Buyer at the Closing(the "Procedures Assignment Order"), which such order contemplated to be included as part of the Approval Order in such other form as shall includebe 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, without limitationfrom 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 following provisions (list of the Assigned Contracts and Leases, except as waived 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 writing or on accordance with the record at the hearing on the Procedures Motion by Seller and Purchaser):Provision Order.
(id) scheduling From and after the date(s) for date hereof, the auction Sellers shall not, and hearing (the "Sale Hearing") to consider entry shall ensure that none of the Sale Order; and
(ii) the establishment of commercially reasonable bidding procedures and requirements regarding competing bids ("Competing Bids")Subsidiaries, including (among other things) (x) a minimum initial incremental bidding requirement of not less than $750,000 greater overall value take any action or fail to Seller than that provided by the Proposed Transactiontake any action, (y) subsequent incremental bidding requirements of at least $200,000 which action or failure to act would reasonably be expected to result in excess of the higher of (A) the last bid 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 initial Competing Bid amountentry of a stay pending appeal, and (z) in the event a Competing Bid is chosen by Seller as cases of each of sub-clauses (A) or (B) of this Section, with respect to the highest Approval Order, the Assignment Order or best offer the Provision Order; provided, however, that nothing contained herein will in any way limit the Seller's ability to provide notice of the Approval Motion and to comply with requests for information from potential competing bidders for the Purchased Acquired Assets so long as it is in compliance with the provisions of Section 4.8 hereof, or to comply with applicable law; and
(e) From and after the commencement of the Chapter 11 Case, the Sellers shall (A) continue to operate their businesses as debtors in possession pursuant to the requirements Sections 1107 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 reasonable best efforts to obtain the Bankruptcy Court's entry of the Sale Order, substantially in the form attached hereto as Exhibit B to this Agreement, approving the transactions contemplated herein within twenty (20) days following the date hereof. The Sale Order shall be in form and substance reasonably satisfactory to Purchaser and its counsel and shall provide, without limitation, that:
(i) as of the Closing Date, the transactions contemplated by this Agreement will effect a legal, valid, enforceable and effective sale and transfer of the Purchased Assets to Purchaser and shall vest Purchaser with title to the Purchased Assets free and clear of all Liens;
(ii) the consideration provided by Purchaser pursuant to this Agreement constitutes reasonably equivalent value and fair consideration for the Purchased Assets;
(iii) Purchaser is a good faith purchaser of the Purchased Assets, as that term is used in section 363(m) 1108 of the Bankruptcy Code, (B) provide the Buyer with a true and is entitled accurate copy of all monthly reports provided to the protections provided by such section;
(iv) as office of the Closing Date, United States Trustee with respect to Seller in its Chapter 11 Case(s) and the Purchased Contracts and Leases will have been duly assigned to Purchaser in accordance with sections 365 and 105 of the Bankruptcy Code;
(v) Seller shall not be solely responsible for any and all Cure Costs relating to the assumption and assignment of the Purchased Contracts and Leases; and
(vi) the Purchased Contracts and Leases will be transferred to, and remain delinquent in full force and effect for the benefit of Purchaser (or its designated transferee(s)), notwithstanding any provision in providing any such contract or lease or in applicable law (including those described in sections 365(b)(2) reports and (fC) pay all of the Bankruptcy Code) that prohibits, restricts or limits in any way such assignment or transfertheir postpetition obligations when due.
(e) Seller shall take such steps necessary to schedule the Sale Hearing on reasonable notice sufficient to satisfy the conditions set forth herein, the requirements of the Bankruptcy Code and related Bankruptcy Rules.
(f) In the event an appeal is taken, 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 such notice of appeal, request for a stay pending appeal or motion for reconsideration. Seller shall also provide Purchaser with written notice (and copies) of any other or further notice of appeal, motion or application filed in connection with any appeal from or application for reconsideration of, either of such orders and any related briefs.
Appears in 1 contract
Bankruptcy Covenants. (ai) Immediately subsequent to the execution of this Agreement, Seller shall (at its sole cost and expense) file (A) a motion, pursuant to 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 Purchaser TransWestern 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 consummation or approval or consummation of the transactions contemplated hereby, this Agreement, the Approval Motion, Provision Motion, related orders, or any provision therein herein or hereintherein, and will provide Purchaser and its counsel TransWestern with reasonable opportunity, but in any event not less than 48 hours before filing such papers, 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 connection with its Bankruptcy Case, which have not otherwise been served on such filingsTransWestern.
(biii) Without limiting Seller shall use commercially reasonable efforts to obtain, at its sole cost and expense, the generality entry of Section 6.10(aa final order authorizing Seller to assign the Assigned Contracts and Purchased Assets to TransWestern (the "Assignment Order") hereof, within three sixteen (316) business days after execution from (and including) the date 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 this Agreement and satisfactory to Purchaser and its counselor, 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 Seller is chosen by able to obtain the Assignment Order Ruling with respect to the Assignment Order then at least prior to the Closing Date hereof. Other than the Ad Ideas Payment and subject to the Assignment Order, Seller as the highest or best offer shall be responsible for the Purchased Assets pursuant payment, at or prior to Closing, of any amounts necessary to cure any defaults which exist on the requirements Closing Date under the Assigned Contracts, and provisions TransWestern shall be responsible for providing adequate assurance of its ability to perform 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 obligations of Seller pursuant to section 503(b) of under the Bankruptcy Code entitled to a first priority under section 507(a)(1) payable from Assigned Contracts following the sales proceeds of any Alternative Transaction or from other sourcesClosing.
(civ) Seller shall take such steps necessary to schedule a hearing to approve From and after 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) date hereof, Seller shall use reasonable best efforts not take any action or fail to obtain take any action, which action or failure to act would reasonably be expected to (A) prevent or impede the Bankruptcy Court's entry consummation of the Sale Order, substantially in the form attached hereto as Exhibit B to this Agreement, approving the transactions contemplated herein within twenty (20) days following the date hereof. The Sale Order shall be in form and substance reasonably satisfactory to Purchaser and its counsel and shall provide, without limitation, that:
(i) as of the Closing Date, 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
(I) or (II) of this section, with respect to the Approval Order, the Assignment Order, or the Provision Order; provided, however, that nothing contained herein will effect a legal, valid, enforceable and effective sale and transfer in any way limit Seller's ability to provide notice of the Purchased Assets Approval Motion and to Purchaser and shall vest Purchaser comply with title to the Purchased Assets free and clear of all Liens;
(ii) the consideration provided by Purchaser pursuant to this Agreement constitutes reasonably equivalent value and fair consideration 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) Purchaser is a good faith purchaser From and after the commencement of the Purchased AssetsChapter 11 Case, Seller shall continue to operate its business as that term is used a debtor in section 363(m) possession pursuant to Sections 1107 and 1108 of the Bankruptcy Code, and 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 Code;
(v) Seller shall be solely responsible for any and all Cure Costs relating to the assumption and assignment of the Purchased Contracts and Leases; and
(vi) the Purchased Contracts and Leases will be transferred to, and remain in full force and effect for the benefit of 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 (f) of the Bankruptcy Code) that prohibits, restricts or limits in any way such assignment or transfer.
(e) Seller shall take such steps necessary to schedule the Sale Hearing on reasonable notice sufficient to satisfy the conditions set forth herein, the requirements of the Bankruptcy Code and related Bankruptcy Rules.
(f) In the event an appeal is taken, 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 such notice of appeal, request for a stay pending appeal or motion for reconsideration. Seller shall also provide Purchaser with written notice (and copies) of any other or further notice of appeal, motion or application filed in connection with any appeal from or application for reconsideration of, either of such orders and any related briefs.
Appears in 1 contract
Samples: Asset Purchase Agreement (Transwestern Holdings Lp)
