Highest and Best Offer. A. Prior to selecting the Buyer as the winning bidder, the Debtors solicited offers to acquire the Purchased Assets from a wide variety of parties. In addition to such solicitations, the Debtors also conducted the bid process in accordance with the provisions of the Sale Procedures Order and the Debtors have otherwise complied with the Sale Procedures Order in all material respects. The bid process conducted pursuant to the Sale Procedures Order afforded a full, fair and reasonable opportunity for any person or entity to make a higher or otherwise better offer to purchase the Purchased Assets. Such process was duly noticed and conducted in a non-collusive, fair and good faith manner and a reasonable opportunity has been given to any interested party to make a higher and better offer for the Purchased Assets.
B. The consideration provided by the Buyer under the APA, including the assumption of the Assumed Liabilities, constitutes the highest or best offer for the Purchased Assets, and will provide a greater recovery for the Debtors’ estate than would be provided by any other available alternative. The Debtors’ determination that the APA constitutes the highest and best offer for the Purchased Assets constitutes a valid and sound exercise of the Debtors’ business judgment consistent with their fiduciary duties.
C. The APA represents a fair and reasonable offer to purchase the Purchased Assets under the circumstances of these Chapter 11 Cases. No other person or entity or group of entities has offered to purchase the Purchased Assets for greater economic value to the Debtors’ estate than the Buyer.
D. Approval of the Motion and the APA and the consummation of the transactions contemplated thereby is in the best interests of the Debtors, their creditors, their estates and other parties in interest.
E. The Debtors have demonstrated compelling circumstances and a good, sufficient, and sound business purpose and justification for the Sale prior to, and outside of, a plan of reorganization.
Highest and Best Offer. The Debtors conducted a marketing process in accordance with, and have otherwise complied in all material respects with, the Revised Bidding Procedures. The process set forth in the Revised Bidding Procedures, including the Auction, was conducted in a noncollusive, fair and good faith manner and a reasonable opportunity has been given to any interested party to make a higher or otherwise better offer for the Purchased Assets. The Debtors and their professionals (i) provided potential purchasers, upon request, sufficient information to enable them to make an informed judgment on whether to bid on the Purchased Assets, (ii) afforded interested parties a full, fair and reasonable opportunity to conduct due diligence and submit offers prior to the Bid Deadline.
Highest and Best Offer. The Debtor conducted an auction process in accordance with, and has otherwise complied in all respects with, the Bidding Procedures Order. The auction process set forth in the Bidding Procedures Order afforded a full, fair, and reasonable opportunity for any person or entity to make a higher or otherwise better offer to purchase the Purchased Assets. The Auction was duly noticed and conducted in a non-collusive, fair, and good faith manner and a reasonable opportunity has been given to any interested party to make a higher or otherwise better offer for the Purchased Assets.
Highest and Best Offer. The consideration provided by Purchaser for the Purchased Assets (a) represents the 18 highest and best offer for the Contessa Enterprise, (b) is fair and reasonable, and (c) will provide a 19 greater recovery for the Debtor’s creditors than would be provided by any other practical, available alternative. No other person or entity, other than Purchaser, has offered any amount for the 22 Contessa Enterprise that would give greater economic value to the Debtor’s estate. A sale of the 23 Contessa Enterprise other than one free and clear of claims and interests would materially and 24 adversely affect the Debtor’s estate, will yield substantially less value for the Debtor’s estate, with 25 less certainty than the available alternatives, and thus the any alternative would be of substantially 26 less benefit to the Debtor’s estate. 27 28 - 7 - Case 2:11-bk-13454-PC Doc 344 Filed 07/01/11 Entered 07/01/11 12:05:09 Desc Main Document Page 8 of 35
Highest and Best Offer. The Purchase Consideration to be paid by Buyer in accordance with the terms of this Agreement is fair value for the Sale of Subject Shares, and the Purchase Consideration is the highest and best offer available to the Seller for the sale of Subject Shares as of the date of this Agreement.
Highest and Best Offer. The Debtor and its professionals conducted a fulsome marketing process of the Purchased Assets whereby they (i) provided potential purchasers, upon request, sufficient information to enable them to make an informed judgment on whether to submit a bid on the Purchased Assets, and (ii) afforded interested parties a full, fair and reasonable opportunity to conduct due diligence and submit offers on the Purchased Assets. The marketing process was conducted in a noncollusive, fair and good faith manner and a reasonable opportunity has been given to any interested party to make a higher or otherwise better offer for the Purchased Assets.
Highest and Best Offer. The First Tranche Purchase Price and the Second Tranche Purchase Price to be paid by Buyer in accordance with the terms of this Agreement are fair value for the First Tranche Acquisition and the Second Tranche Acquisition, respectively, and the First Tranche Acquisition and the Second Tranche Acquisition are the highest and best offer available to the Seller for the Subject Shares as of the date of this Agreement.
