Common use of Seller's Chapter 11 Bankruptcy Case Clause in Contracts

Seller's Chapter 11 Bankruptcy Case. This Agreement and the transactions contemplated hereby are contingent upon the approval and authorization of the Bankruptcy Court, and Sellers shall have no liability under this Agreement unless and until such approval and authorization shall be given by the Bankruptcy Court. Sellers have previously filed with the Bankruptcy Court the Sale Motion seeking entry of the Approval Order. Each of Sellers and Buyer agree that they will cooperate in promptly taking such actions as may be reasonably necessary to obtain the Approval Order, including providing notice of the sale to such additional parties as may be reasonably necessary, as well as furnishing affidavits or other documents or information for filing with the Bankruptcy Court for the purposes, among others, of (a) providing necessary assurances of performance by Buyer under this Agreement, including for the assumption of any Contracts or Leases, (b) demonstrating that adequate notice has been given to all necessary parties for the assumption and assignment to Buyer of any Contracts or Leases under this Agreement, (c) demonstrating that the Purchase Price under the Agreement constitutes reasonably equivalent value and fair consideration under the Bankruptcy Code for the Transferred Assets, and (d) demonstrating that Buyer (i) is a “good faith” purchaser under Section 363(m) of the Bankruptcy Code, (ii) has not engaged in any conduct that would cause or permit the Agreement to be avoided under Section 363(n) of the Bankruptcy Code, and (iii) is not a “successor” to any of the Sellers for purposes of any successor liability laws. Unless and until this Agreement is terminated in accordance with its terms, Buyer shall not, without the prior written consent of Sellers, file, join in, or otherwise support in any manner whatsoever any motion or other pleading relating to the sale of the Transferred Assets hereunder. In the event the Approval Order is appealed, Sellers and Buyer shall each use their respective commercially reasonable efforts to defend such appeal, provided that Buyer and Sellers shall proceed with the Closing despite the pendency of an appeal if no stay of the Approval Order is in effect.

Seller's Chapter 11 Bankruptcy Case. (a) This Agreement and the transactions contemplated hereby are contingent upon the approval and authorization of the Bankruptcy CourtCourt pursuant to the Bidding Procedures Order and the Approval Order, and Sellers Seller shall have no liability under this Agreement unless and until such approval both the Bidding Procedures Order and authorization shall be given the Approval Order are entered by the Bankruptcy Court. Sellers , other than pursuant to Section 9.3, which liability Seller shall have previously filed with the Bankruptcy Court the Sale Motion seeking following entry of the Approval Bidding Procedures Order. Each of Sellers and Buyer agree Purchaser agrees that they it will cooperate in promptly taking take such actions as may be reasonably necessary requested by Seller to obtain assist in obtaining the Approval Order, including providing notice of the sale to such additional parties as may be reasonably necessary, as well as furnishing affidavits or other documents or information for filing with the Bankruptcy Court for the purposes, among others, of (a) providing necessary assurances of performance by Buyer Purchaser under this Agreement, including for the assumption of any Contracts or Leases, (b) Agreement and demonstrating that adequate notice has been given to all necessary parties for the assumption and assignment to Buyer of any Contracts or Leases under this Agreement, (c) demonstrating that the Purchase Price under the Agreement constitutes reasonably equivalent value and fair consideration under the Bankruptcy Code for the Transferred Assets, and (d) demonstrating that Buyer (i) Purchaser is a “"good faith” " purchaser under Section section 363(m) of the Bankruptcy Code, (ii) has not engaged in any conduct that would cause or permit the Agreement to be avoided under Section 363(n) of the Bankruptcy Code, and (iii) is not a “successor” to any of the Sellers for purposes of any successor liability laws. Unless and until this Agreement is terminated in accordance with its terms, Buyer Purchaser shall not, without the prior written consent of SellersSeller, file, join in, or otherwise support in any manner whatsoever any motion or other pleading relating to the sale of the Transferred Assets hereunder. In the event the Bidding Procedures Order or the Approval Order is appealed, Sellers Seller and Buyer Purchaser shall each use their respective its commercially reasonable efforts to defend such appeal, provided . (b) Seller and Purchaser acknowledge and agree that Buyer and Sellers shall proceed with until the Closing despite earlier of the pendency of an appeal if no stay issuance by the Bankruptcy Court of the Approval Order or the termination of this Agreement in accordance with its terms, Seller and its respective Affiliates, and their respective officers, directors, employees, attorneys, investment bankers, accountants and other agents and representatives (collectively, "Representatives") shall be permitted to solicit inquiries, proposals, offers or bids from, and negotiate with, any Person relating to, the direct or indirect sale, transfer or other disposition, in one or more transactions, of all or substantially all of the Transferred Assets, the equity interests of Seller and/or the recapitalization or restructuring of Seller, and may take any other affirmative action (including entering into any agreement or letter-of-intent with respect thereto) to cause, promote or assist the purchase, restructuring or recapitalization of Seller (an "Alternative Transaction"); provided, however, that Seller and its respective Affiliates may only enter into, and seek Bankruptcy Court approval of, any definitive agreement with respect thereto if such Alternative Transaction constitutes a Superior Transaction. Without limiting the foregoing, Seller and its respective Affiliates and Representatives shall be permitted to supply information relating to Seller and the Transferred Assets to prospective purchasers that have executed a confidentiality agreement with Seller or its respective Affiliates. Neither Seller nor any of its respective Affiliates or Representatives shall have any liability to Purchaser, either under or relating to this Agreement or any applicable Law, by virtue of entering into or seeking Bankruptcy Court approval of such a definitive agreement for a Superior Transaction pursuant to this Section 6.4(b); provided, that Purchaser is in effectpaid any Break-up Fee that may be required pursuant to Section 9.3 at the time provided for therein.

Seller's Chapter 11 Bankruptcy Case. (a) This Agreement and the transactions contemplated hereby are contingent upon the approval and authorization of the Bankruptcy CourtCourt pursuant to the Bidding Procedures Order and the Approval Order, and Sellers Seller shall have no liability under this Agreement unless and until such approval both the Bidding Procedures Order and authorization shall be given the Approval Order are entered by the Bankruptcy Court. Sellers , other than pursuant to Section 9.3, which liability Seller shall have previously filed with the Bankruptcy Court the Sale Motion seeking following entry of the Approval Bidding Procedures Order. Each of Sellers and Buyer agree Purchaser agrees that they it will cooperate in promptly taking take such actions as may be reasonably necessary requested by Seller to obtain assist in obtaining the Approval Order, including providing notice of the sale to such additional parties as may be reasonably necessary, as well as furnishing affidavits or other documents or information for filing with the Bankruptcy Court for the purposes, among others, of (a) providing necessary assurances of performance by Buyer Purchaser under this Agreement, including for the assumption of any Contracts or Leases, (b) Agreement and demonstrating that adequate notice has been given to all necessary parties for the assumption and assignment to Buyer of any Contracts or Leases under this Agreement, (c) demonstrating that the Purchase Price under the Agreement constitutes reasonably equivalent value and fair consideration under the Bankruptcy Code for the Transferred Assets, and (d) demonstrating that Buyer (i) Purchaser is a “"good faith” " purchaser under Section section 363(m) of the Bankruptcy Code. Subject to issues of standing, (ii) has not engaged in any conduct that would cause or permit if Purchaser is determined to have presented the Agreement to be avoided under Section 363(n) of Superior Transaction at the Bankruptcy Codeauction, and (iii) is not a “successor” to any of the Sellers for purposes of any successor liability laws. Unless and until this Agreement is terminated in accordance with its terms, Buyer Purchaser shall not, without the prior written consent of SellersSeller, file, join in, or otherwise support in any manner whatsoever any motion or other pleading relating to the sale of the Transferred Assets hereunder. In the event the Bidding Procedures Order or the Approval Order is appealed, Sellers Seller and Buyer Purchaser shall each use their respective its commercially reasonable efforts to defend such appeal, provided . (b) Seller and Purchaser acknowledge and agree that Buyer and Sellers shall proceed with until the Closing despite earlier of the pendency of an appeal if no stay issuance by the Bankruptcy Court of the Approval Order is or the termination of this Agreement in effectaccordance with its terms, Seller and its respective Affiliates, and their respective officers, directors, employees, attorneys, investment bankers, accountants and other agents and representatives (collectively, "Representatives") shall be permitted to solicit inquiries, proposals, offers or bids from, and negotiate with, any Person relating to, the direct or indirect sale, transfer or other disposition, in one or more transactions, of all or substantially all of the Transferred Assets, the equity interests of Seller and/or the recapitalization or restructuring of Seller, and may take any other affirmative action (including entering into any agreement or letter-of-intent with respect thereto) to cause, promote or assist the purchase, restructuring or recapitalization of Seller (an "Alternative Transaction"); provided, however, that Seller and its respective Affiliates may not enter into or seek Bankruptcy Court approval of any definitive agreement with respect thereto prior to termination of this Agreement or termination of the agreement with the back-up bidder who was a qualified bidder under the Bidding Procedures Order at the auction held November 1, 2005. Without limiting the foregoing, Seller and its respective Affiliates and Representatives shall be permitted to supply information relating to Seller and the Transferred Assets to prospective purchasers that have executed a confidentiality agreement with Seller or its respective Affiliates. Neither Seller nor any of its respective Affiliates or Representatives shall have any liability to Purchaser, either under or relating to this Agreement or any applicable Law, by virtue of entering into or seeking Bankruptcy Court approval of such a definitive agreement for a Superior Transaction pursuant to this Section 6.4(b).

Seller's Chapter 11 Bankruptcy Case. This (a) Notwithstanding any conflicting or inconsistent provisions of this Agreement, the Seller's obligations under this Agreement and the transactions contemplated hereby are subject to and contingent upon the approval and authorization of the Bankruptcy Court. On or prior to October 31, 2003 (the "Petition Date"), Seller shall commence the Bankruptcy Case. On or before November 7, 2003, Seller shall file a motion (the "Sale Motion") pursuant to sections 363 and 365 of the Bankruptcy Code seeking entry of an order approving, among other things, (i) the bidding procedures (the "Bidding Procedures") attached hereto as Exhibit 6.3(a), (ii) the Break-Up Fee, the Expense Reimbursement, and Sellers the No-Shop Provisions, (iii) scheduling an auction (the "Auction") and Sale Hearing to consider approval of the Asset Sale, and (iv) the form and manner of notice of the Sale Motion and Sale Hearing. (b) The Seller shall use commercially reasonable efforts to obtain entry of an order (the "Bidding Procedures Order") approving the Sale Motion, but in no event shall the hearing on the Bidding Procedures Order be held before November 28, 2003 or later than December 4, 2003. The Bidding Procedures Order shall be in the form set forth in Exhibit 6.3(b)(i) (as may be amended or extended from time to time with the consent of the Seller and Buyer), provided, that entry of the Bidding Procedures Order in the form attached as Exhibit 6.3(b)(ii) (including the Bidding Procedures appended thereto) shall be acceptable to Buyer and shall satisfy the requirements of this Section 6.3 and shall provide among other things the following: (i) that the hearing to consider entry of the Bankruptcy Court approval (the "Sale Hearing") shall be set not later than the later of January 15, 2004 or 45 days after the entry of the Bid Procedures Order; (ii) that any confidentiality agreement provided to or utilized by a Person in connection with the purchase of the Assets shall contain terms no more favorable than those contained in the Confidentiality Agreement executed by the Buyer; (iii) that competing bids shall include additional cash consideration of not less than the Break-Up Fee, the Expense Reimbursement and shall assume the Assumed Liabilities, and that an successive overbids shall be made in increments not less that $200,000 of cash consideration in excess of the last submitted, highest qualified bid for the Acquired Assets; (iv) that a proposal for a competing bid must be in writing and submitted using the Agreement as a form marked to show changes (including, without limitation, the price and the specific assets to be purchased), along with any other bid package requirements (a "Competing Agreement"); (v) that a Competing Agreement shall be for the purchase of substantially all of the Acquired Assets and the assumption of substantially all of the Assumed Liabilities, and accompanied by a marked copy of this Agreement, reflecting the changes required by the Alternative Buyer (as defined below); (vi) subject to the foregoing provisions, that the Bidding Procedures shall govern the terms and conditions of competing bids and of the Asset Sale and the Auction; (vii) Seller will commence the Auction three (3) Business Days prior to the date set for the Sale Hearing. The Auction shall be concluded and the highest and best offer determined and announced at the conclusion of the Auction, provided, however, that if the competing bids include different economic terms (e.g., alternative forms of consideration as the Purchase Price or different bundles of Acquired Assets or Assumed Liabilities), the Seller shall have no liability under one Business Day after the Auction concludes, to evaluate such competing bids for the sole purpose of determining and announcing the highest and best bid (and the Seller shall not in such time solicit from any competing bidders additional consideration, terms or conditions), which determination and announcement shall be final; (viii) that in the event one or more parties other than Buyer (an "Alternative Buyer") enters into an agreement with Seller to consummate an Alternative Transaction in accordance with the Bidding Procedures, then the Buyer shall be entitled to the Break-Up Fee from the Alternative Buyer's Deposit, as defined below, and Seller shall cause the Alternative Buyer to place the Alternative Buyer's Deposit (in the amount of Break-Up Fee and the Expense Reimbursement) in cash in escrow with the Seller's counsel for payment subject to the terms of Section 10.2 hereof, provided that the Seller has not previously notified the Buyer in writing that it is in material breach of this Agreement; (ix) that, upon consummation of an Alternative Transaction (or the forfeiture of the Alternative Buyer's Deposit), and subject to terms of Section 10.2 hereof, and from the Alternative Buyer's Deposit, payment to Buyer in reimbursement (the "Expense Reimbursement", subject to court approval as to reasonableness, of Buyer's documented out-of-pocket costs, fees and other expenses (including legal expenses and other professional fee and expenses, and travel expenses) incurred in connection with this proposed acquisition of the Acquired Assets from and after October 20, 2003 (including without limitation the negotiation of the Agreement, drafting, review and comments on drafts, attendance at hearings and due diligence) (collectively, "Expenses"), up to a maximum aggregate amount of $250,000; (x) that a bid by an Alternative Buyer will not be considered by Seller as qualified for the Auction if (1) such bid is not received by Seller and Buyer in writing on or prior to the fifth day prior to the Auction, or (2) 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; (xi) that any Alternative Buyer submitting a competing bid to provide an xxxxxxx money cash deposit (the "Alternative Buyer's Deposit") in accordance with the Bidding Procedures of an amount not less than the Break Up Fee and the Expense Reimbursement; (xii) that if one or more bids are submitted in accordance with the Bidding Procedures (the "Qualified Bids"), Seller will conduct the Auction three (3) Business Days prior to the date set for the Sale Hearing. At the Auction, Buyer shall submit this Agreement unless as its initial bid (or any higher or better bid amount in excess of the Purchase Price and until such approval terms of this Agreement), and authorization Seller shall be given have the right, in its sole discretion, to select the highest and best bid from Buyer and any Alternative Buyer who submitted a Qualified Bid (the "Highest and Best Bid"), subject to resolution of any dispute by the Bankruptcy Court. Sellers have previously filed with ; (xiii) 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 Sale Motion seeking entry Auction; (xiv) that the Break-Up Fee and Expense Reimbursement shall be payable by Seller to Buyer subject to the other terms of this Agreement provided that Buyer submits this Agreement (or a higher price) as the Approval Order. Each of Sellers and first bid in the Auction; (xv) that in the event Seller enters into an agreement with an Alternative Buyer agree that they will cooperate in promptly taking such actions as may be reasonably necessary to obtain the Approval Order, including providing notice of the sale to such additional parties as may be reasonably necessary, as well as furnishing affidavits or other documents or information for filing with the Bankruptcy Court for the purposes, among others, of (a) providing necessary assurances of performance by Buyer under this Agreement, including for the assumption of any Contracts or Leasesconsummate an Alternative Transaction, (b1) demonstrating that adequate notice has been given the Break-Up Fee and Expense Reimbursement shall be paid from the Alternative Buyer's Deposit and shall be allowed as an administrative expense with priority with respect to all necessary parties for the assumption and assignment to Buyer of any Contracts or Leases Alternative Buyer's Deposit under this Agreement, (c) demonstrating that the Purchase Price under the Agreement constitutes reasonably equivalent value and fair consideration under the Bankruptcy Code for the Transferred Assets, and (d) demonstrating that Buyer (i) is a “good faith” purchaser under Section 363(m) of the Bankruptcy Code, (ii) has not engaged in any conduct that would cause or permit the Agreement to be avoided under Section 363(nsection 507(a)(1) of the Bankruptcy Code, and (iiiSeller shall assign any and all of its rights, title, Claims and interests in and to the Alternative Buyer's Deposit, including the right to receive the proceeds from the Alternative Buyer's Deposit if forfeited pursuant to Section 3(b)(vi) is not a “successor” to any of the Sellers for purposes Bidding Procedures, and Seller hereby grants the Buyer a Lien in and to the Alternative Buyer's Deposit and the right to receive the proceeds from such deposit, which Lien shall be senior to and have priority (effective as of the date hereof and without the necessity of the execution by the Debtor or the filing or recordation of mortgages, security agreements, financing statements or otherwise), over any and all Claims, interests, Liens, rights or encumbrances in existence on the date hereof or granted subsequent to the date of an Order approving the Bidding Procedures that may be claimed by the Seller or any party-in-interest, including without limitation, any and all Liens that may be asserted by the Seller's secured creditors, and such Alternative Buyer's Deposit and the Seller's right to receive the proceeds from such deposit shall not constitute the proceeds of prepetition collateral of the prepetition lenders and such deposit shall be free and clear of any successor liability laws. Unless and until all Liens, Claims or encumbrances other than those of Buyer; and (2) payment of the Break-Up Fee and Expense Reimbursement shall be made to Buyer promptly after the first to occur of the closing and consummation of the Alternative Transaction, or the termination of the Alternative Transaction in any circumstances under which the Seller (or its estate) becomes entitled to retain or obtain payment of the Alternative Buyer's Deposit (the parties acknowledging and agreeing, however, that if the Alternative Transaction fails to close in any circumstances under which the Seller (or its estate) does not become entitled to retain or obtain payment of the Alternative Buyer's Deposit, then the Buyer's Break Up Fee or Expense Reimbursement that would be payable or paid to Buyer under this Agreement, the Bidding Procedures Order, or otherwise, shall constitute a general unsecured claim against the Seller's estate); (xvi) that in the event of a competing bid, Buyer shall be entitled to submit successive overbids and shall be entitled, in the calculation of the amount of Buyer's overbids, to credit bid in the sum of the Break-Up Fee and the Expense Reimbursement; and (xvii) that in the event this Agreement is terminated in accordance with its termsby Seller pursuant to 10.1(j) or (k), then Buyer shall not, without the prior written consent of Sellers, file, join in, or otherwise support be entitled (in any manner whatsoever any motion or other pleading relating addition to the sale return to Buyer of the Transferred Assets hereunder. Xxxxxxx Money and of the interest earned therein) to payment from Seller, subject to court approval as to reasonableness, of the Buyer's Expenses (the "Alternate Expense Reimbursement"). (c) Each of the parties hereto agrees to file this Agreement with the Bankruptcy Court promptly following execution by the parties. (d) In the event the Approval Final Order of the Bankruptcy Court is appealed, the Sellers and Buyer shall each use their respective commercially all reasonable efforts to defend such appeal, provided that . (e) Buyer and Sellers shall proceed has (i) simultaneously with the Closing despite execution of this Agreement, delivered to Seller's attorney, to hold in escrow pursuant to an Xxxxxxx Money Escrow Agreement in substantially the pendency form attached hereto as Exhibit 6.3(e), which Xxxxxxx Money Escrow Agreement is being executed and delivered simultaneously with this Agreement (the "Xxxxxxx Money Escrow Agreement"), a deposit in the amount of an appeal if no stay $300,000 (the "First Xxxxxxx Money"), payable by wire transfer of immediately available U.S. funds to such escrow agent, pursuant to the instructions set forth on Schedule 6.3(e) attached hereto, and (ii) at any time after the date hereof and at least one Business Day before the first scheduled hearing on entry of the Approval Order Bid Procedures Order, Buyer may deliver to Seller's attorney to hold in escrow pursuant to the Xxxxxxx Money Escrow Agreement a deposit in the amount of up to $700,000 (the "Second Xxxxxxx Money," and together with the First Xxxxxxx Money, the "Xxxxxxx Money"). Interest earned on the Xxxxxxx Money shall be credited to and become part of the Xxxxxxx Money reflected as it is credited to such accounts. The Xxxxxxx Money shall be held by the Seller's counsel and disbursed in effectaccordance with one of the following provisions, whichever shall apply: (i) If the Closing occurs, then at Closing the amount of the Xxxxxxx Money shall be credited toward the Purchase Price and delivered to Seller; (ii) If this Agreement is terminated pursuant to Article 10 of this Agreement (other than a termination with respect to which the Xxxxxxx Money is payable to Seller pursuant to Section 6.3(e)(iii)), then within two (2) Business Days after such termination, the Xxxxxxx Money shall be returned to Buyer; or (iii) If (x) this Agreement is terminated by Seller pursuant to Section 10.1(b) of this Agreement and (y) as of the date of such termination Buyer does not have any right to terminate this Agreement pursuant to Article 10, then the Xxxxxxx Money shall be paid to Seller as liquidated damages and not a penalty and as the Seller's sole and exclusive remedy. The parties recognize that the determination of damages in the event of a termination of this Agreement pursuant to Article 10 will be difficult and that the disbursement of the Xxxxxxx Money constitutes a reasonable estimate of such actual damages, and therefore liquidated damages and not a penalty. Payment of the Xxxxxxx Money to Seller in the event of a termination of this Agreement by Seller pursuant to Section 10.1(b) shall be Seller's exclusive remedy under this Agreement.