Common use of Bidding Procedures Order Clause in Contracts

Bidding Procedures Order. Buyer acknowledges the entry of an order dated June 2, 2014 in the Bankruptcy Case approving procedures for solicitation and consideration by the Bankruptcy Court of bids from third parties for the Acquired Assets (the “Bidding Procedures Order”), which: (a) Scheduled the Sale Hearing for June 25, 2014; (b) Scheduled an auction, if necessary, for June 23, 2014 (the “Auction”); (c) Approved payment of the Breakup Fee and the Expense Reimbursement; (d) Provided that any party wishing to qualify as a buyer must provide to Seller adequate financial assurance of capability to close and perform post-Closing under the Assigned Contracts and Assigned Personal Property Leases on or before the bid deadline established in the Bidding Procedures Order; (e) Provided that any party desiring to participate in the Auction must, prior to the Auction, submit to Seller the information required by the Bidding Procedures Order, including (i) an initial bid of not less than the Purchase Price, plus the Breakup Fee, plus the Expense Reimbursement, plus $100,000, (ii) a good faith deposit by wire transfer, certified or cashier’s check, in the amount of ten percent (10%) of the initial bid to be held in escrow, (iii) an executed asset purchase agreement and a marked version showing any changes from this Agreement, and (iv) written evidence of a commitment for financing or other evidence of the Case 14-00279 Doc 478 Filed 08/15/14 Entered 08/15/14 16:29:05 Desc Main Document Page 35 of 111 692183/15/PHOENIX party’s ability to consummate the transaction and payment of the purchase price in cash at the Closing; (f) Provided that any subsequent offer or bid for any of the Acquired Assets at the Auction (a “Competing Bid”) must be at least $100,000 greater than the preceding bid; and (g) Provided that, if Buyer elects to participate in bidding at the Auction, Buyer may credit bid, to the fullest extent permissible under section 363(k) of the Bankruptcy Code, any additional indebtedness that may be owing in connection with the DIP Facility. Buyer further acknowledges that Seller filed with the Bankruptcy Court a notice with respect to Cure Costs and served such notice on all necessary persons on or by June 6, 2014, and such notice set forth, (i) with specificity, the amount of the Cure Cost for each particular Assigned Contract and Assigned Personal Property Lease, if any, (ii) the intent to assume and assign to Buyer such Assigned Contract or Assigned Personal Property Lease at the Closing Date, and (iii) the deadline for responses or objections to the assumption or assignment of such Assigned Contract or Assigned Personal Property Lease or to the Cure Cost related to same.

Bidding Procedures Order. Buyer acknowledges Sellers shall in connection with the sale of the Target Assets advertise to the public in a commercially reasonable manner as required by the Bankruptcy Code or as shall be directed by the Bankruptcy Court following a preliminary hearing on the Sale Motion (the “Bidding Procedures Hearing”) and the entry of an order dated June 2, 2014 in the Bankruptcy Case Cases approving procedures for solicitation and consideration by the Bankruptcy Court of bids from third parties for the Acquired Target Assets (the “Bidding Procedures Order”)) considered at such Bidding Procedures Hearing. The Bidding Procedures Order shall be in a final form reasonably acceptable to Sellers and Purchaser, whichshall be entered by the Bankruptcy Court no later than twenty-one (21) days following the filing of the Sale Motion, and in any event shall: (a) Scheduled 6.4.2.1 schedule the Sale Hearing for June 25, 2014Hearing; (b) Scheduled 6.4.2.2 schedule an auction, if necessary, for June 23, 2014 auction (the “Auction”); (c) Approved payment 6.4.2.3 require, as a precondition to participation in the Auction, the submission of a competing bid for some or all of the Breakup Fee and the Expense Reimbursement; Target Assets no later than 4:00 p.m. Eastern Time at least three (d3) Provided that any party wishing to qualify as a buyer must provide to Seller adequate financial assurance of capability to close and perform post-Closing under the Assigned Contracts and Assigned Personal Property Leases on or before the bid deadline established in the Bidding Procedures Order; (e) Provided that any party desiring to participate in the Auction must, Business Days prior to the Auction, submit Auction (the “Bid Deadline”); 6.4.2.4 require any Qualifying Bid (as defined below) to Seller the information required be accompanied by the Bidding Procedures Order, including (i) an initial bid of not less than the Purchase Price, plus the Breakup Fee, plus the Expense Reimbursement, plus $100,000, (ii) a good faith exxxxxx money deposit by wire transfer, certified or cashier’s check, in the amount of ten percent (10%) of the initial bid no less than $500,000, which amount shall be paid to or deposited with Sellers’ counsel to be held in escrowtrust in a segregated account by Sellers’ counsel; (ii) an executed confidentiality agreement, (iii) an executed asset purchase agreement and substantially in the form of this Agreement along with a red-line marked version showing any changes from against this AgreementAgreement to reflect changes, and (iv) written evidence of a commitment for financing or other evidence of the Case 14-00279 Doc 478 Filed 08/15/14 Entered 08/15/14 16:29:05 Desc Main Document Page 35 of 111 692183/15/PHOENIX party’s ability to consummate the transaction and payment of the purchase price in cash at the Closing; 6.4.2.5 provide that if this Agreement is terminated pursuant to Article 10, then, subject to Section 10.2, Purchaser shall be entitled to (fi) Provided Purchaser’s reasonably documented actual out-of-pocket fees and expenses (including legal, accounting, escrow and other fees and expenses) not to exceed $200,000 (the “Expense Reimbursement”) and (ii) in the event Sellers sell, transfer, lease or otherwise dispose of, directly or indirectly (including through an asset sale, stock sale, merger, or other similar transaction or pursuant to a plan of reorganization in the Bankruptcy Cases) all or substantially all of the Target Business or the Target Assets in a transaction or a series of transactions with one or more persons other than Purchaser in any circumstance, including in accordance with the Bidding Procedures Order (such event being an “Alternative Transaction”) on or prior to the date that is twelve (12) months after the date of such termination, a break-up fee in the amount equal to $400,000 (the “Break-Up Fee”) with such amount being payable upon the closing or consummation of such Alternative Transaction; provided, however, that the closing or consummation of a transaction evidenced by a Qualifying Bid shall constitute an Alternative Transaction, regardless of whether such Qualifying Bid involves all or substantially all of the Target Business or the Target Assets; provided further that, for the avoidance of doubt, notwithstanding any provisions of this Agreement to the contrary, Sellers shall not be obligated to pay, and Purchaser shall not be entitled to receive, the Break-Up Fee upon the closing on an Alternative Transaction if Sellers terminate this Agreement pursuant to Section 10.1.6 as a result of Purchaser’s breach of this Agreement. 6.4.2.6 provide that Sellers are authorized without further Bankruptcy Court action to pay any amounts that become due and payable to Purchaser pursuant to this Agreement (including the Break-up Fee and Expense Reimbursement), and that such amounts shall have the priority specified in Section 10.2.3; 6.4.2.7 provide that no party submitting any other offer to purchase the Target Assets or a Qualifying Bid shall be entitled to any expense reimbursement, breakup, or termination or similar fee or payment; 6.4.2.8 require that a bid will not be considered by Sellers as qualified for the Auction unless such bid is for an amount equal to or more than the aggregate sum of (i) the Purchase Price in cash; (ii) the dollar value of the Break-up Fee in cash; and (iii) $250,000 in cash (each bid which meets the foregoing criteria constitutes, as applicable, a “Qualifying Bid”); 6.4.2.9 require that any subsequent offer or bid for any of the Acquired Assets at the Auction (a “Competing Bid”) must be at least $100,000 250,000 greater than the preceding bid, which if such preceding bid shall have been made by Purchaser, shall be deemed to include the amounts in clause (ii) of Section 6.4.2.8; provided, however, any overbid submitted by Purchaser at the Auction shall only be required to be equal to (A) the then existing leading bid, plus (B) $250,000 less (C) the dollar value of the Break-up Fee; 6.4.2.10 provide that if one (1) or more Qualifying Bids are submitted in accordance with the Bidding Procedures Order, Sellers will conduct the Auction no later than two days prior to the Sale Hearing in accordance with the Bidding Procedures Order; and at such Auction, Sellers shall have the right to select the highest or otherwise best bid from Purchaser and any Person who submitted a Qualifying Bid pursuant to Section 6.4.2.8 (the “Highest or Best Bid”), and the next most favorable bid (the “Next Highest Bid”), each of which will be determined by Sellers in their sole and absolute discretion; 6.4.2.11 require that the Next Highest Bid be held open until 21 days following the entry of the Sale Order and that the Person submitting the Next Highest Bid be required to perform its obligations thereunder in the event that the Person submitting the Highest or Best Bid fails to consummate the transaction; 6.4.2.12 require at the Auction that Purchaser has the right to submit further bids along with a markup of this Agreement, and at any time, request that Sellers announce, subject to any potential new bids, the then current Highest or Best Bid, and to the extent Purchaser requests, use reasonable efforts to clarify any and all questions Purchaser may have regarding Sellers’ announcement of the then current Highest or Best Bid; and (g) Provided that6.4.2.13 unless otherwise agreed to by Purchaser in its sole and reasonable discretion, if Buyer elects to require that only the Persons who submitted Qualifying Bids and Purchaser may participate in bidding at the Auction, Buyer may credit bid, to the fullest extent permissible under section 363(k) of the Bankruptcy Code, any additional indebtedness that may be owing in connection with the DIP Facility. Buyer further acknowledges that Seller filed with the Bankruptcy Court a notice with respect to Cure Costs and served such notice on all necessary persons on or by June 6, 2014, and such notice set forth, (i) with specificity, the amount of the Cure Cost for each particular Assigned Contract and Assigned Personal Property Lease, if any, (ii) the intent to assume and assign to Buyer such Assigned Contract or Assigned Personal Property Lease at the Closing Date, and (iii) the deadline for responses or objections to the assumption or assignment of such Assigned Contract or Assigned Personal Property Lease or to the Cure Cost related to same.

Bidding Procedures Order. Buyer acknowledges Sellers shall in connection with the sale of the Target Assets advertise to the public in a commercially reasonable manner as required by the Bankruptcy Code or as shall be directed by the Bankruptcy Court following a preliminary hearing on the Sale Motion (the “Bidding Procedures Hearing”) and the entry of an order dated June 2, 2014 in the Bankruptcy Case Cases approving procedures for solicitation and consideration by the Bankruptcy Court of bids from third parties for the Acquired Target Assets (the “Bidding Procedures Order”)) considered at such Bidding Procedures Hearing. The Bidding Procedures Order shall be in a final form reasonably acceptable to Sellers and Purchaser, whichand in any event shall: (a) Scheduled 6.4.3.1 schedule the Sale Hearing for June 25, 2014Hearing; (b) Scheduled 6.4.3.2 schedule an auction, if necessary, for June 23, 2014 auction (the “Auction”); (c) Approved payment 6.4.3.3 require, as a precondition to participation in the Auction, the submission of a competing bid for some or all of the Breakup Fee and the Expense Reimbursement; Target Assets no later than 5:00 p.m. Central Time at least three (d3) Provided that any party wishing to qualify as a buyer must provide to Seller adequate financial assurance of capability to close and perform post-Closing under the Assigned Contracts and Assigned Personal Property Leases on or before the bid deadline established in the Bidding Procedures Order; (e) Provided that any party desiring to participate in the Auction must, Business Days prior to the Auction, submit Auction (the “Bid Deadline”); 6.4.3.4 require any Qualifying Bid (as defined below) to Seller the information required be accompanied by the Bidding Procedures Order, including (i) an initial bid of not less than the Purchase Price, plus the Breakup Fee, plus the Expense Reimbursement, plus $100,000, (ii) a good faith xxxxxxx money deposit by wire transfer, certified or cashier’s check, in the amount of no less than ten percent (10%) of the initial bid Base Purchase Price (which amount shall be paid to or deposited with an escrow agent to be held in escrowpursuant to an escrow agreement to be entered into by such bidder, Sellers and such escrow agent); (ii) an executed confidentiality agreement, (iii) an executed asset purchase agreement and substantially in the form of this Agreement along with a red-line marked version showing any changes from against this AgreementAgreement to reflect changes, and (iv) written evidence of a commitment for financing or other evidence of the Case 14-00279 Doc 478 Filed 08/15/14 Entered 08/15/14 16:29:05 Desc Main Document Page 35 of 111 692183/15/PHOENIX party’s ability to consummate the transaction and payment of the purchase price in cash at the Closing; 6.4.3.5 provide that if this Agreement is terminated pursuant to Article 10, then, subject to Section 10.2, Purchaser shall be entitled to (fi) Provided Purchaser’s reasonably documented actual out-of-pocket fees and expenses (including legal, accounting, HSR Act filing fees, escrow and other fees and expenses) not to exceed $790,000 (the “Expense Reimbursement”) and (ii) in the event Sellers sell, transfer, lease or otherwise dispose of, directly or indirectly (including through an asset sale, stock sale, merger, or other similar transaction or pursuant to a plan of reorganization in the Bankruptcy Cases) all or substantially all of the Target Business or the Target Assets in a transaction or a series of transactions with one or more persons other than Purchaser in any circumstance, including in accordance with the Bidding Procedures Order (such event being an “Alternative Transaction”) on or prior to the date that is twelve (12) months after the date of such termination, a break-up fee in the amount of an additional $2,370,000 (the “Break-Up Fee”) with such amount being payable upon the closing or consummation of such Alternative Transaction; provided, however, that the closing or consummation of a transaction evidenced by a Qualifying Bid shall constitute an Alternative Transaction, regardless of whether such Qualifying Bid involves all or substantially all of the Target Business or the Target Assets; provided further that, for the avoidance of doubt, notwithstanding any provisions of this Agreement to the contrary, Sellers shall not be obligated to pay, and Purchaser shall not be entitled to receive, the Break-Up Fee upon the closing on an Alternative Transaction if (x) Sellers terminate this Agreement pursuant to Section 10.1.6 as a result of Purchaser’s breach of this Agreement; or (y) Purchaser terminates this Agreement pursuant to Section 10.1.7 as a result of the failure of any one or more of the conditions set forth in Section 7.1.1. 6.4.3.6 provide that Sellers are authorized without further Bankruptcy Court action to pay any amounts that become due and payable to Purchaser pursuant to this Agreement (including the Breakup Fee and Expense Reimbursement), and that such amounts shall have the priority specified in Section 10.2.3; 6.4.3.7 provide that no party submitting any other offer to purchase the Target Assets or a Qualifying Bid shall be entitled to any expense reimbursement, breakup, or termination or similar fee or payment; 6.4.3.8 require that a bid will not be considered by Sellers as qualified for the Auction unless such bid is for an amount equal to or more than the aggregate sum of (i) the Base Purchase Price in cash; (ii) the dollar value of the Breakup Fee in cash; (iii) the dollar value of the Expense Reimbursement in cash, and (iv) $250,000 in cash (each bid which meets the foregoing criteria constitutes, as applicable, a “Qualifying Bid”); 6.4.3.9 require that any subsequent offer or bid for any of the Acquired Assets at the Auction (a “Competing Bid”) must be at least $100,000 250,000 greater than the preceding bid, which if such preceding bid shall have been made by Purchaser, shall be deemed to include the amounts in clauses (ii) and (iii) of Section 6.4.3.8; and (g) Provided thatprovided, if Buyer elects to participate in bidding however, any overbid submitted by Purchaser at the Auction shall only be required to be equal to the sum of (A) the then existing leading bid, plus (B) $250,000 less (C) the dollar value of the Breakup Fee less (D) the dollar value of the Expense Reimbursement; 6.4.3.10 provide that if one (1) or more Qualifying Bids are submitted in accordance with the Bidding Procedures Order, Sellers will conduct the Auction no later than two days prior to the Sale Hearing in accordance with the Bidding Procedures Order; and at such Auction, Buyer may credit bid, Sellers shall have the right to select the fullest extent permissible under section 363(k) of highest and best bid from Purchaser and any Person who submitted a Qualifying Bid pursuant to Section 6.4.3.8 (the Bankruptcy Code, any additional indebtedness that may be owing in connection with the DIP Facility. Buyer further acknowledges that Seller filed with the Bankruptcy Court a notice with respect to Cure Costs “Highest and served such notice on all necessary persons on or by June 6, 2014Best Bid”), and such notice set forththe next most favorable bid (the “Next Highest Bid”), each of which will be determined by considering, among other things: (i) with specificitythe number, the amount type and nature of the Cure Cost for any changes to this Agreement requested by each particular Assigned Contract and Assigned Personal Property Lease, if any, bidder; (ii) the intent extent to assume which such modifications are likely to delay closing of the sale of the Acquired Assets and assign the cost to Buyer Sellers of such Assigned Contract modifications or Assigned Personal Property Lease at the Closing Date, and delay; (iii) the deadline for responses or objections total consideration to be received by Sellers; (iv) the likelihood of the bidder’s ability to close a transaction and the timing thereof; and (v) the net benefit to the assumption or assignment of such Assigned Contract or Assigned Personal Property Lease or Bankruptcy Estates, taking into account Purchaser’s rights to the Cure Cost related Breakup Fee and Expense Reimbursement (for the avoidance of doubt, each Seller hereby agrees that the value attributed by the Seller to sameany bid made by Purchaser at the Auction shall at least be equal to the sum of the following (w) the dollar value of the cash consideration contained in such bid, (x) the dollar value of any additional consideration contained in such bid, (y) the dollar value of the Breakup Fee, and (z) the dollar value of the Expense Reimbursement); 6.4.3.11 require that the Next Highest Bid be held open until 21 days following the entry of the Sale Order and that the Person submitting the Next Highest Bid be required to perform its obligations thereunder in the event that the Person submitting the Highest and Best Bid fails to consummate the transaction; 6.4.3.12 require at the Auction that Purchaser has the right to submit further bids along with a markup of this Agreement, and at any time, request that Sellers announce, subject to any potential new bids, the then current Highest and Best Bid, and to the extent Purchaser requests, use reasonable efforts to clarify any and all questions Purchaser may have regarding Sellers’ announcement of the then current Highest and Best Bid; 6.4.3.13 unless otherwise agreed to by Purchaser in its sole and reasonable discretion, require that only the Persons who submitted Qualifying Bids and Purchaser may participate in the Auction; and 6.4.3.14 provide that Purchaser shall have standing to contest the Highest and Best Bid selected by Sellers.

Bidding Procedures Order. Buyer acknowledges the Seller and/or Company, as applicable, shall use commercially reasonable efforts to obtain entry of an order dated June 2(the "Bidding Procedures Order") approving the Sale Motion, 2014 and to set the earliest possible hearing date for the Sale Hearing, and in all events the Bankruptcy Case hearing on the Bidding Procedures Order shall be held not less than ten (10) days before the scheduled Auction. The Bidding Procedures Order and any order approving procedures for solicitation the sale to Purchaser (the “Sale Order”) shall be in form and consideration by content reasonably satisfactory to Seller and/or Company, as applicable, and Purchaser and shall provide, among other things, the following: (A) that the hearing to consider entry of the Bankruptcy Court of bids from third parties for the Acquired Assets approval (the “Bidding Procedures Order”)"Sale Hearing") shall be set not later than April 30, which: (a) Scheduled the Sale Hearing for June 25, 20142013; (bB) Scheduled an auction, if necessary, for June 23, 2014 (the “Auction”); (c) Approved payment of the Breakup Fee and the Expense Reimbursement; (d) Provided that any party wishing to qualify as a buyer must provide to Seller adequate financial assurance of capability to close and perform post-Closing under the Assigned Contracts and Assigned Personal Property Leases on or before the bid deadline established in the Bidding Procedures Order; shall include a requirement that there be minimum bidding increments of Two Hundred Fifty Thousand and No/100 Dollars (e) Provided that any party desiring to participate in the Auction must$250,000.00), prior to the Auction, submit to Seller the information required by the Bidding Procedures Order, including (i) which would require an initial bid of not less than offer from a third party to offer consideration equal to the Purchase Price, plus the Breakup FeeBreak-Up Fee of Two Million and No/100 Dollars ($2,000,000.00), plus the Expense Reimbursementminimum bidding increment of Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00). (C) that a proposal for a competing bid must be in writing and evidenced by a written agreement specifying without limitation, plus $100,000the price and the specific assets to be purchased and Assumed Closing Liabilities, along with any other bid package requirements (iia "Competing Agreement"); (D) subject to the foregoing provisions, that the Bidding Procedures shall govern the terms and conditions of competing bids and of the Sale and the Auction; (E) that Seller and/or Company, as applicable, will commence the Auction pursuant to the time schedule set forth in the Bidding Procedures. The Auction shall be concluded and the highest and best offer determined and announced at the conclusion of the Auction, which determination and announcement shall be final (subject to the Sale Order); (F) that a good faith bid by any Alternative Purchaser will not be considered by Seller and/or Company, as applicable, as qualified for the Auction if such bid or other information submitted by the bidder does not contain satisfactory evidence that the Person submitting it has sufficient financial wherewithal to consummate the purchase contemplated thereby; (G) that any Alternative Purchaser submitting a competing bid to provide an exxxxxx money cash deposit by wire transfer(the "Alternative Purchaser's Deposit") in accordance with the Bidding Procedures of an amount not less than the Break Up Fee, certified or cashier’s checkand Seller and/or Company, as applicable, shall cause the Alternative Purchaser to place the Alternative Purchaser's Deposit (in the amount of ten percent (10%Break-Up Fee) in cash in escrow with the counsel for Seller and/or Company, as applicable, for payment to Purchaser subject to the terms of the initial bid to be held in escrow, (iii) an executed asset purchase agreement and a marked version showing any changes from this Agreement, and (iv) written evidence provided that Seller and/or Company, as applicable, has not previously notified Purchaser in writing that it is in material breach of a commitment for financing or other evidence of the Case 14-00279 Doc 478 Filed 08/15/14 Entered 08/15/14 16:29:05 Desc Main Document Page 35 of 111 692183/15/PHOENIX party’s ability to consummate the transaction and payment of the purchase price in cash at the Closingthis Agreement; (fH) Provided that if one or more bids are submitted in accordance with the Bidding Procedures (the "Qualified Bids"), Seller and/or Company, as applicable, will conduct the Auction pursuant to the time schedule set forth in the Bidding Procedures. At the Auction, Purchaser shall submit this Agreement as its initial bid (or any subsequent offer higher or better bid for any amount in excess of the Acquired Assets at Purchase Price and terms of this Agreement), and Seller and/or Company, as applicable, shall have the right, in its sole discretion, to select the highest and best bid from Purchaser and any Alternative Purchaser who submitted a Qualified Bid (the "Highest and Best Bid"), subject to resolution of any dispute by the Bankruptcy Court; (I) that only the Persons who submitted Qualified Bids and any other Person permitted to participate in the Auction by order of the Bankruptcy Court may participate in the Auction; (J) that the Break-Up Fee shall be payable by Seller and/or Company, as applicable, to Purchaser subject to the other terms of this Agreement provided that Purchaser submits this Agreement (or a “Competing Bid”higher price) must be at least $100,000 greater as the first bid in the Auction; (K) that in the event one or more Alternative Purchaser enters into an agreement with Seller and/or Company, as applicable, to consummate an Alternative Transaction (for higher and better consideration than the preceding Purchase Price; i.e., that would generate Excess Proceeds as defined below) in accordance with the Bidding Procedures, and consummates such transaction or suffers the loss of the Alternative Purchaser's Deposit, as defined below, then Purchaser shall be entitled to the Break-Up Fee from the Alternative Purchaser's Deposit, as defined below (or from the proceeds of the consummated sale in excess of the Purchase Price; the "Excess Proceeds"); (L) that in the event of a competing bid, Purchaser shall be entitled to submit successive overbids and shall be entitled, in the calculation of the amount of Purchaser's overbids, to credit bid in the sum of the Break-Up Fee (but Purchaser shall be entitled to the Break-Up Fee whether or not it submits overbids in the Auction); and (gM) Provided thatthat in the event this Agreement is terminated by Seller and/or Company, if Buyer elects to participate in bidding at the Auctionas applicable, Buyer may credit bid, for any reason or circumstance other than termination due to the fullest extent permissible under section 363(k) material and uncured default or breach by Purchaser when Seller is not in default or breach and has satisfied all conditions to Closing, and Seller and/or Company, as applicable, consummates a sale of the Bankruptcy CodeShares or the Assets to any Alternative Purchaser for a price higher than the Purchase Price within six months of such termination, any additional indebtedness that may then Purchaser shall be owing in connection with entitled to payment from Seller and/or Company, as applicable, of the DIP Facility. Buyer further acknowledges that Seller filed with Break Up Fee (to the Bankruptcy Court a notice with respect to Cure Costs and served extent of such notice on all necessary persons on or by June 6, 2014increased Purchase Price), and such notice set forth, (i) Purchaser's right to payment thereof shall be protected and secured with specificity, a Lien upon the amount proceeds of the Cure Cost for each particular Assigned Contract and Assigned Personal Property Lease, if any, (ii) the intent to assume and assign to Buyer such Assigned Contract Alternative Purchaser's deposit or Assigned Personal Property Lease at the Closing Date, and (iii) the deadline for responses or objections to the assumption or assignment of such Assigned Contract or Assigned Personal Property Lease or to the Cure Cost related to sameExcess Proceeds.

Bidding Procedures Order. Buyer acknowledges Sellers shall in connection with the sale of the Target Assets advertise to the public in a commercially reasonable manner as required by the Bankruptcy Code or as shall be directed by the Bankruptcy Court following a preliminary hearing on the Sale Motion (the “Bidding Procedures Hearing”) and the entry of an order dated June 2, 2014 in the Bankruptcy Case Cases approving procedures for solicitation and consideration by the Bankruptcy Court of bids from third parties for the Acquired Target Assets (the “Bidding Procedures Order”)) considered at such Bidding Procedures Hearing. The Bidding Procedures Order shall be in a final form reasonably acceptable to Sellers and Purchaser, whichshall be entered by the Bankruptcy Court no later than twenty-one (21) days following the filing of the Sale Motion, and in any event shall: (a) Scheduled 6.4.2.1 schedule the Sale Hearing for June 25, 2014Hearing; (b) Scheduled 6.4.2.2 schedule an auction, if necessary, for June 23, 2014 auction (the “Auction”); (c) Approved payment 6.4.2.3 require, as a precondition to participation in the Auction, the submission of a competing bid for some or all of the Breakup Fee and the Expense Reimbursement; Target Assets no later than 4:00 p.m. Eastern Time at least three (d3) Provided that any party wishing to qualify as a buyer must provide to Seller adequate financial assurance of capability to close and perform post-Closing under the Assigned Contracts and Assigned Personal Property Leases on or before the bid deadline established in the Bidding Procedures Order; (e) Provided that any party desiring to participate in the Auction must, Business Days prior to the Auction, submit Auction (the “Bid Deadline”); 6.4.2.4 require any Qualifying Bid (as defined below) to Seller the information required be accompanied by the Bidding Procedures Order, including (i) an initial bid of not less than the Purchase Price, plus the Breakup Fee, plus the Expense Reimbursement, plus $100,000, (ii) a good faith exxxxxx money deposit by wire transfer, certified or cashier’s check, in the amount of ten percent (10%) of the initial bid no less than $500,000, which amount shall be paid to or deposited with Sellers’ counsel to be held in escrowtrust in a segregated account by Sellers’ counsel; (ii) an executed confidentiality agreement, (iii) an executed asset purchase agreement and substantially in the form of this Agreement along with a red-line marked version showing any changes from against this AgreementAgreement to reflect changes, and (iv) written evidence of a commitment for financing or other evidence of the Case 14-00279 Doc 478 Filed 08/15/14 Entered 08/15/14 16:29:05 Desc Main Document Page 35 of 111 692183/15/PHOENIX party’s ability to consummate the transaction and payment of the purchase price in cash at the Closing; 6.4.2.5 provide that if this Agreement is terminated pursuant to Article 10, then, subject to Section 10.2, Purchaser shall be entitled to (fi) Provided Purchaser’s reasonably documented actual out-of-pocket fees and expenses (including legal, accounting, escrow and other fees and expenses) not to exceed $200,000 (the “Expense Reimbursement”) and (ii) in the event Sellers sell, transfer, lease or otherwise dispose of, directly or indirectly (including through an asset sale, stock sale, merger, or other similar transaction or pursuant to a plan of reorganization in the Bankruptcy Cases) all or substantially all of the Target Business or the Target Assets in a transaction or a series of transactions with one or more persons other than Purchaser in any circumstance, including in accordance with the Bidding Procedures Order (such event being an “Alternative Transaction”) on or prior to the date that is twelve (12) months after the date of such termination, a break-up fee in the amount equal to $400,000 (the “Break-Up Fee”) with such amount being payable upon the closing or consummation of such Alternative Transaction; provided, however, that the closing or consummation of a transaction evidenced by a Qualifying Bid shall constitute an Alternative Transaction, regardless of whether such Qualifying Bid involves all or substantially all of the Target Business or the Target Assets; provided further that, for the avoidance of doubt, notwithstanding any provisions of this Agreement to the contrary, Sellers shall not be obligated to pay, and Purchaser shall not be entitled to receive, the Break-Up Fee upon the closing on an Alternative Transaction if (x) Sellers terminate this Agreement pursuant to Section 10.1.6 as a result of Purchaser’s breach of this Agreement. 6.4.2.6 provide that Sellers are authorized without further Bankruptcy Court action to pay any amounts that become due and payable to Purchaser pursuant to this Agreement (including the Break-up Fee and Expense Reimbursement), and that such amounts shall have the priority specified in Section 10.2.3; 6.4.2.7 provide that no party submitting any other offer to purchase the Target Assets or a Qualifying Bid shall be entitled to any expense reimbursement, breakup, or termination or similar fee or payment; 6.4.2.8 require that a bid will not be considered by Sellers as qualified for the Auction unless such bid is for an amount equal to or more than the aggregate sum of (i) the Purchase Price in cash; (ii) the dollar value of the Break-up Fee in cash; and (iii) $250,000 in cash (each bid which meets the foregoing criteria constitutes, as applicable, a “Qualifying Bid”); 6.4.2.9 require that any subsequent offer or bid for any of the Acquired Assets at the Auction (a “Competing Bid”) must be at least $100,000 250,000 greater than the preceding bid, which if such preceding bid shall have been made by Purchaser, shall be deemed to include the amounts in clause (ii) of Section 6.4.2.8; provided, however, any overbid submitted by Purchaser at the Auction shall only be required to be equal to (A) the then existing leading bid, plus (B) $250,000 less (C) the dollar value of the Break-up Fee; 6.4.2.10 provide that if one (1) or more Qualifying Bids are submitted in accordance with the Bidding Procedures Order, Sellers will conduct the Auction no later than two days prior to the Sale Hearing in accordance with the Bidding Procedures Order; and at such Auction, Sellers shall have the right to select the highest or otherwise best bid from Purchaser and any Person who submitted a Qualifying Bid pursuant to Section 6.4.2.8 (the “Highest or Best Bid”), and the next most favorable bid (the “Next Highest Bid”), each of which will be determined by Sellers in their sole and absolute discretion; 6.4.2.11 require that the Next Highest Bid be held open until 21 days following the entry of the Sale Order and that the Person submitting the Next Highest Bid be required to perform its obligations thereunder in the event that the Person submitting the Highest or Best Bid fails to consummate the transaction; 6.4.2.12 require at the Auction that Purchaser has the right to submit further bids along with a markup of this Agreement, and at any time, request that Sellers announce, subject to any potential new bids, the then current Highest or Best Bid, and to the extent Purchaser requests, use reasonable efforts to clarify any and all questions Purchaser may have regarding Sellers’ announcement of the then current Highest or Best Bid; and (g) Provided that6.4.2.13 unless otherwise agreed to by Purchaser in its sole and reasonable discretion, if Buyer elects to require that only the Persons who submitted Qualifying Bids and Purchaser may participate in bidding at the Auction, Buyer may credit bid, to the fullest extent permissible under section 363(k) of the Bankruptcy Code, any additional indebtedness that may be owing in connection with the DIP Facility. Buyer further acknowledges that Seller filed with the Bankruptcy Court a notice with respect to Cure Costs and served such notice on all necessary persons on or by June 6, 2014, and such notice set forth, (i) with specificity, the amount of the Cure Cost for each particular Assigned Contract and Assigned Personal Property Lease, if any, (ii) the intent to assume and assign to Buyer such Assigned Contract or Assigned Personal Property Lease at the Closing Date, and (iii) the deadline for responses or objections to the assumption or assignment of such Assigned Contract or Assigned Personal Property Lease or to the Cure Cost related to same.

Bidding Procedures Order. Buyer acknowledges The Bankruptcy Court shall have held a hearing (the entry of an “Bidding Procedures Hearing”) and shall have entered a final non-appealable order dated June 2, 2014 in the Bankruptcy Case approving procedures for solicitation and consideration by the Bankruptcy Court of bids from third parties for the Acquired Purchased Assets (the “Bidding Procedures Order”), whichwhich Bidding Procedures Order shall be in form and substance reasonably satisfactory to Seller and Buyer and shall provide, among other things, that: 5.7.1. in the event that the Bankruptcy Court fails to approve (i) the Sale Motion (as hereinafter defined) or (ii) a sale to Buyer as provided hereunder and instead approves a sale of some or all of the Purchased Assets to an entity that has submitted a Counteroffer (as hereinafter defined), and such sale closes, Seller shall pay to Buyer, without further order of the Bankruptcy Court, the lesser of (a) Scheduled the Sale Hearing for June 25, 2014; $75,000 and (b) Scheduled an auctionBuyer’s actual expenses incurred in connection with the transactions contemplated hereby, if necessary, for June 23, 2014 including expenses of counsel and other consultants (the “AuctionExpense Reimbursement”); (c) Approved payment 5.7.2. in the event that the Bankruptcy Court fails to approve a sale to Buyer as provided hereunder and instead approves a sale of some or all of the Breakup Fee Purchased Assets to an entity that has submitted a Counteroffer, and such sale closes, Seller shall pay to Buyer, without further order of the Expense ReimbursementBankruptcy Court, the lesser of (a) $100,000 and (b) 35% of the excess of the amount of (i) the Counteroffer over (ii) the Purchase Price plus $175,000 (the “Break-Up Fee”); (d) Provided that any party wishing to qualify as a buyer must provide to Seller adequate financial assurance of capability to close and perform post-Closing under the Assigned Contracts and Assigned Personal Property Leases on or before the bid deadline established in the Bidding Procedures Order; (e) Provided that any party desiring 5.7.3. if Buyer elects to participate in bidding at the Auction mustSale Hearing (as hereinafter defined), prior to the Auction, submit to Seller the information required by the Bidding Procedures Order, including (i) an initial bid of not less than the Purchase Price, plus the Breakup Fee, plus Buyer may credit the Expense Reimbursement, plus $100,000, (ii) a good faith deposit by wire transfer, certified or cashier’s check, in the amount of ten percent (10%) of Reimbursement and Break-Up Fee towards its bid; 5.7.4. the initial bid to at the Sale Hearing must be held in escrow, (iii) an executed asset purchase agreement and at a marked version showing any changes from this Agreement, and (iv) written evidence of a commitment for financing or other evidence of the Case 14-00279 Doc 478 Filed 08/15/14 Entered 08/15/14 16:29:05 Desc Main Document Page 35 of 111 692183/15/PHOENIX party’s ability to consummate the transaction and payment of the purchase price in with a minimum cash component payable at closing of $5,275,000 plus the ClosingInventory Purchase Price; (f) Provided that any 5.7.5. each subsequent offer or bid for any of the Acquired Assets at the Auction (a “Competing Bid”) must be at least $100,000 greater than the preceding bid; 5.7.6. each bidder must make a $500,000 cash deposit on the same terms as the Buyer as provided herein; 5.7.7. each bid must be irrevocable until the closing of the sale; 5.7.8. each bidder must demonstrate to Seller’s satisfaction in its reasonable discretion that the bidder is (a) financially able to consummate the transaction contemplated by such bid, which ability may be demonstrated by submission of current audited or unaudited financial statements or other reasonable evidence, or, if the bidder is an entity formed for the purpose of acquiring the Purchased Assets, current audited or unaudited financial statements or other reasonable evidence of the equity holders of the bidder, and (b) able to consummate the transaction on the date and on the terms contemplated by the asset purchase agreement submitted with such bid; 5.7.9. the terms and conditions of each bid must be, in aggregate, not materially more burdensome to Seller than the terms and conditions contained herein as determined by Seller in its sole discretion exercised in good faith and cannot be conditioned on the outcome of unperformed due diligence by the bidder, material adverse change provisions, and/or obtaining financing; and (g) Provided that, if Buyer elects to participate in bidding at 5.7.10. Seller may not modify the Auction, Buyer may credit bid, to the fullest extent permissible under section 363(k) foregoing procedures without further order of the Bankruptcy Code, any additional indebtedness that may be owing in connection with the DIP Facility. Buyer further acknowledges that Seller filed with the Bankruptcy Court a notice with respect to Cure Costs and served such notice on all necessary persons on or by June 6, 2014, and such notice set forth, (i) with specificity, the amount of the Cure Cost for each particular Assigned Contract and Assigned Personal Property Lease, if any, (ii) the intent to assume and assign to Buyer such Assigned Contract or Assigned Personal Property Lease at the Closing Date, and (iii) the deadline for responses or objections to the assumption or assignment of such Assigned Contract or Assigned Personal Property Lease or to the Cure Cost related to sameCourt.