Common use of Qualified Bidders Clause in Contracts

Qualified Bidders. Unless otherwise ordered by the Bankruptcy Court, for cause shown, or as otherwise determined by the Seller, in order to participate in the Bidding Process, each Person other than the Purchaser (a "Potential Bidder") must deliver (unless previously delivered) to the Seller: (i) An executed confidentiality agreement customary for transactions of this type, in form and substance satisfac tory to the Seller; (ii) Current audited financial statements of the Potential Bidder, or, if the Potential Bidder is an entity formed for the purpose of acquiring the Acquired Assets and the Business, current audited financial statements of the equity holders of the Potential Bidder who shall guarantee the obligations of the Potential Bidder, or such other form of financial disclosure and credit-quality support or enhancement acceptable to the Seller and its financial advisors; and (iii) A preliminary (non-binding) proposal regarding (a) the purchase price range, (b) any assets and/or equity interests expected to be excluded, (c) the structure and financing of the transaction (including, but not limited to, the sources of financing for the Cash Purchase Price and the requisite Financial Assurance), (d) any anticipated regulatory approvals required to close the transaction, the anticipated time frame and any anticipated impediments for obtaining such approvals, (e) any conditions to closing that it may wish to impose in addition to those set forth in this Agreement, and (f) the nature and extent of additional due diligence it may wish to conduct and the date by which such due diligence will be completed. A Potential Bidder that delivers the documents described in subparagraphs (i), (ii) and (iii) above and whose financial information and credit-quality support or enhancement demonstrate the financial capability of the Potential Bidder to consummate the sale, if selected as a successful bidder, and that the Seller determines is likely (based on availability of financing, experience and other considerations) to be able to consummate the sale within the time frame provided by this Agreement shall be deemed a "Qualified Bidder." Notwithstanding the foregoing, the Purchaser shall be deemed a Qualified Bidder for purposes of the Bidding Process. As promptly as practicable after a Potential Bidder delivers all of the materials required by subparagraphs (i), (ii) and (iii) above, the Seller shall determine, and shall notify the Potential Bidder in writing, whether the Potential Bidder is a Qualified Bidder. At the same time that the Seller notifies the Potential Bidder that it is a Qualified Bidder, the Seller shall allow the Qualified Bidder to begin to conduct due diligence with respect to the Acquired Assets and the Business as provided in subsection (b) below.

Qualified Bidders. Unless otherwise ordered by the Bankruptcy Court, for cause shown, or as otherwise determined by the Seller, in order to participate in the Bidding Process, each Person other than the Purchaser (a "“Potential Bidder"”) must deliver (unless previously delivered) to the Seller: (i) An executed confidentiality agreement customary for transactions of this type, in form and substance satisfac tory to the Seller; (ii) Current audited financial statements of the Potential Bidder, or, if the Potential Bidder is an entity formed for the purpose of acquiring the Acquired Assets and the Business, current audited financial statements of the equity holders of the Potential Bidder who shall guarantee the obligations of the Potential Bidder, or such other form of financial disclosure and credit-quality support or enhancement acceptable to the Seller and its financial advisors; and (iii) A preliminary (non-binding) proposal regarding (a) the purchase price range, (b) any assets and/or equity interests expected to be excluded, (c) the structure and financing of the transaction (including, but not limited to, the sources of financing for the Cash Purchase Price and the requisite Financial Assurance), (d) any anticipated regulatory approvals required to close the transaction, the anticipated time frame and any anticipated impediments for obtaining such approvals, (e) any conditions to closing that it may wish to impose in addition to those set forth in this Agreement, and (f) the nature and extent of additional due diligence it may wish to conduct and the date by which such due diligence will be completed. A Potential Bidder that delivers the documents described in subparagraphs (i), (ii) and (iii) above and whose financial information and credit-quality support or enhancement demonstrate the financial capability of the Potential Bidder to consummate the sale, if selected as a successful bidder, and that the Seller determines is likely (based on availability of financing, experience and other considerations) to be able to consummate the sale within the time frame provided by this Agreement shall be deemed a "“Qualified Bidder." ” Notwithstanding the foregoing, the Purchaser shall be deemed a Qualified Bidder for purposes of the Bidding Process. As promptly as practicable after a Potential Bidder delivers all of the materials required by subparagraphs (i), (ii) and (iii) above, the Seller shall determine, and shall notify the Potential Bidder in writing, whether the Potential Bidder is a Qualified Bidder. At the same time that the Seller notifies the Potential Bidder that it is a Qualified Bidder, the Seller shall allow the Qualified Bidder to begin to conduct due diligence with respect to the Acquired Assets and the Business as provided in subsection (b) below.

Qualified Bidders. Unless otherwise ordered by the Bankruptcy Court, for cause shown, or as otherwise determined by the Seller, in order to participate in the Bidding Process, each Person other than the Purchaser (To be a "Potential Qualified Bidder," an entity that is interested in purchasing the Purchased Assets ("Bidder(s)") must deliver (unless previously delivered) submit to the SellerDebtor the following information by no later than 2:00 p.m. prevailing Pacific Time on September 21, 2005 (the "Qualification Deadline"). To be a Qualified Bidder, the bidder must submit a bid that complies in all respects with the following: (i) An executed confidentiality agreement customary i. that contains a letter setting forth the identity of the bidder, the contact information for transactions such bidder, and full disclosure of this typeaffiliates or insiders of the Debtor involved in such bid, in form and substance satisfac tory to the Sellerif any; ii. that is accompanied by an executed asset purchase agreement which shall contain terms and conditions for the purchase of the Purchased Assets that are substantially similar to or better than those contained in the Purchase Agreement, which shall provide for a closing on the date required by the Purchase Agreement and which shall not contain any conditions to closing based upon the ability of the bidder to obtain financing, the outcome of unperformed due diligence by the bidder, or any reason other than those set forth in the Purchase Agreement; iii. that provides satisfactory evidence of the bidder's (iia) Current financial ability to close the sale of the Purchased Assets, including the most recent audited financial statements of the Potential Bidderbidder, or, if the Potential Bidder bidder is an entity formed for the purpose of acquiring the Acquired Assets and the BusinessPurchased Assets, current audited financial statements of the equity holders holder(s) of the Potential Bidder who shall guarantee the obligations of the Potential Bidderbidder, or and such other form of financial disclosure acceptable to, and credit-quality support or enhancement acceptable to requested by, the Seller Debtor, and its financial advisors; and (iii) A preliminary (non-binding) proposal regarding (a) the purchase price range, (b) any assets and/or equity interests expected to be excluded, (c) the structure and financing of the transaction (including, but not limited to, the sources of financing for the Cash Purchase Price and the requisite Financial Assurance), (d) any anticipated regulatory approvals required to close the transaction, the anticipated time frame and any anticipated impediments for obtaining such approvals, (e) any conditions to closing that it may wish to impose in addition to those set forth in this Agreement, and (f) the nature and extent of additional due diligence it may wish to conduct and the date by which such due diligence will be completed. A Potential Bidder that delivers the documents described in subparagraphs (i), (ii) and (iii) above and whose financial information and credit-quality support or enhancement demonstrate the financial capability of the Potential Bidder ability to consummate the sale, if selected transaction on the date and on terms and conditions no less favorable to the Debtor than as contemplated by the Purchase Agreement; iv. that is accompanied by a successful bidder, and that the Seller determines is likely (based on availability of financing, experience and other considerations) to be able to consummate the sale within the time frame provided by this Agreement shall be deemed a "Qualified Bidder." Notwithstanding the foregoing, the Purchaser shall be deemed a Qualified Bidder for purposes declaration of the Bidding Process. As promptly as practicable after a Potential Bidder delivers all bidder attesting to the bidder's ability to provide adequate assurances of the materials required by subparagraphs (i), (ii) and (iii) above, the Seller shall determine, and shall notify the Potential Bidder in writing, whether the Potential Bidder is a Qualified Bidder. At the same time that the Seller notifies the Potential Bidder that it is a Qualified Bidder, the Seller shall allow the Qualified Bidder to begin to conduct due diligence future performance with respect to the Acquired Assumed Contracts; v. that is accompanied by a deposit (the "Deposit") in the amount equal to at least $300,000 in the form of a certified check or cashier's check. The bidder shall forfeit the Deposit if the bidder is the Successful Bidder (as defined in Section 6 below) and (A) modifies or withdraws the bid without the Debtor's consent before the consummation of the sale of the Purchased Assets and to such bidder or (B) breaches the Business terms of the agreement pursuant to which the bidder has agreed to purchase the Purchased Assets. The Deposit shall be returned promptly to the bidder (i) if the bidder is determined by the Court not to be a Qualified Bidder or (ii) under the circumstances contemplated by Section 9 hereof. The initial determination of whether a bidder is a Qualified Bidder is within the sole discretion of the Debtor. Any disputes remaining at the time of the Sale Hearing (as provided defined in subsection (bSection 4 below) belowas to whether a bidder is a Qualified Bidder will be resolved by the Bankruptcy Court at the Sale Hearing.

Qualified Bidders. Unless otherwise ordered by the Bankruptcy Court, for cause shown, or as otherwise determined by the Seller, in order To be eligible to participate in the Bidding Process, Auction and be deemed a ³Qualified Bidder,´ each Person other than Contract Party must submit a binding written offer to purchase all or some of the Purchaser (a "Potential Bidder") must deliver (unless previously delivered) Sale Assets to the SellerDebtor and the Creditors¶ Committee that satisfies each of the following conditions: i. the bidder must submit a clean signed and binding asset purchase agreement (i³Modified Asset Purchase Agreement´) An executed confidentiality and a marked asset purchase agreement customary for transactions of this type, in form reflecting the differences between the Modified Asset Purchase Agreement submitted by the bidder and substance satisfac tory the Asset Purchase Agreement attached as Exhibit A to the SellerSale Motion; (ii) Current audited financial statements . the bidder¶s offer must provide that the entire purchase price will be paid cash at closing; iii. the bidder¶s offer must be irrevocable until the closing of the Potential Bidder, or, if the Potential Bidder is an entity formed for the purpose of acquiring the Acquired Assets and the Business, current audited financial statements purchase of the equity holders of Sale Assets if such bidder is the Potential Bidder who shall guarantee Successful Bidder; iv. the obligations of bidder¶s offer must contain such financial and other information that will allow the Potential Bidder, or such other form of financial disclosure and credit-quality support or enhancement acceptable Debtors to make a reasonable determination as to the Seller bidder¶s financial and its financial advisors; and (iii) A preliminary (non-binding) proposal regarding (a) the purchase price range, (b) any assets and/or equity interests expected to be excluded, (c) the structure and financing of the transaction (including, but not limited to, the sources of financing for the Cash Purchase Price and the requisite Financial Assurance), (d) any anticipated regulatory approvals required to close the transaction, the anticipated time frame and any anticipated impediments for obtaining such approvals, (e) any conditions to closing that it may wish to impose in addition to those set forth in this Agreement, and (f) the nature and extent of additional due diligence it may wish to conduct and the date by which such due diligence will be completed. A Potential Bidder that delivers the documents described in subparagraphs (i), (ii) and (iii) above and whose financial information and credit-quality support or enhancement demonstrate the financial capability of the Potential Bidder other capabilities to consummate the saletransactions contemplated by the Modified Asset Purchase Agreement, if selected as a successful bidderincluding, and that the Seller determines is likely (based on availability of financingwithout limitation, experience such financial and other considerations) to be able to consummate the sale within the time frame provided by this Agreement shall be deemed a "Qualified Bidder." Notwithstanding the foregoing, the Purchaser shall be deemed a Qualified Bidder for purposes information setting forth adequate assurance of future performance under section 365 of the Bidding Process. As promptly Bankruptcy Code (if applicable), such as practicable after a Potential Bidder delivers all evidence of debt and/or equity funding commitments or other financial resources readily available and sufficient in the aggregate to finance the purchase of the materials required Sale Assets, in a form requested by subparagraphs and reasonably satisfactory to the Debtors, to allow the Debtors to serve within one (i)1) business day after receipt of such information on counter-parties to any contracts or leases being assigned in connection with the proposed sale that have requested, (ii) and (iii) above, the Seller shall determine, and shall notify the Potential Bidder in writing, whether such information; v. the Potential Bidder bidder¶s offer must identify with particularity each and every executory contract and unexpired lease, the assumption and assignment of which is a Qualified Biddercondition to closing; vi. At the same time bidder¶s offer shall not request or entitle the bidder to any transaction or break-up fee, expense reimbursement, or similar type of payment; vii. the bidder¶s offer must fully disclose the identity of each entity that will be bidding for the Seller notifies Sale Assets or otherwise participating in connection with such bid, and the Potential Bidder that it is a Qualified Bidder, complete terms of any such participation; viii. the Seller bidder¶s offer shall allow the Qualified Bidder to begin to conduct not contain any due diligence with respect or financing contingencies of any kind that such bidder is not prepared to waive prior to the Acquired Assets and the Business as provided in subsection (b) below.Auction;