SALE AGREEMENT DESCRIBED IN
7.15(B)(VI) HEREIN NO LATER THAN TEN (10) DAYS FOLLOWING THE HEARING ON THE SALE
ORDER, (IV) SATISFIES SELLER AND THE BANKRUPTCY COURT THAT IT IS A BONA FIDE
PURCHASER, AND (V) IS WILLING AND ABLE TO COVER ITS OWN LEGAL COUNSEL FEES AND
COSTS ASSOCIATED WITH THE THIRD PARTY SALE, SELLER SHALL, UPON APPROVAL OF THE
BANKRUPTCY COURT OF A SALE ORDER NAMING SUCH OTHER PURCHASER AS PURCHASER AND
THE RELATED CONFIRMATION ORDER, BE ENTITLED TO CLOSE SUCH THIRD PARTY SALE
PURSUANT TO SUCH OTHER OFFER; PROVIDED, HOWEVER, THAT NOTHING CONTAINED HEREIN
SHALL PREVENT PURCHASER FROM CONTESTING THAT SUCH OTHER OFFER IS THE HIGHEST AND
BEST OFFER.
UPON ENTRY OF THE SALE ORDER AUTHORIZING A SALE OF THE MEMBERSHIP
INTEREST TO A PURCHASER OTHER THAN PURCHASER (THE "PREVAILING BIDDER"), SELLER
SHALL DIRECT THE ESCROW AGENT TO RETURN TO PURCHASER THE DOWN PAYMENT (WITH ALL
ACCRUED INTEREST THEREON) AND SELLER SHALL PAY TO PURCHASER THE BREAK-UP FEE
FROM THE FIRST CASH PROCEEDS OF THE THIRD PARTY SALE OR ANY OTHER SALE OF THE
MEMBERSHIP INTEREST WITHIN FIVE (5) DAYS AFTER THE CLOSING OF THE THIRD PARTY
SALE OR ANY OTHER DISPOSITION OF THE MEMBERSHIP INTEREST.
IN THE EVENT THAT
PURCHASER AGREES TO BE A BACK-UP BIDDER, SELLER SHALL DIRECT THE ESCROW AGENT TO
RETURN THE DOWN PAYMENT (WITH ALL ACCRUED INTEREST THEREON) TO PURCHASER UPON
THE EARLIER OF CLOSING OF THE SALE TO THE PREVAILING BIDDER OR A TERMINATION OF
THIS AGREEMENT BY PURCHASER ACCORDING TO ITS TERMS.
UPON THE CLOSING OF THE
THIRD PARTY SALE, PAYMENT OF THE BREAK-UP FEE TO PURCHASER FROM THE FIRST CASH
PROCEEDS OF THE THIRD PARTY SALE SHALL BE MADE WITHIN FIVE (5) DAYS AFTER THE
CLOSING OF THE THIRD PARTY SALE.
7.16
PURCHASER CONTACT WITH VENDORS AND EMPLOYEES.
PURCHASER AGREES THAT,
PRIOR TO THE CLOSING DATE, IT WILL NOT CONTACT ANY VENDORS, SUPPLIERS, EMPLOYEES
OR OTHER CONTRACTING PARTIES OF SELLER OR SELLER'S AFFILIATES WITH RESPECT TO
ANY ASPECT OF THE COMPANY'S BUSINESS OR THE TRANSACTIONS CONTEMPLATED HEREBY
WITHOUT THE PRIOR WRITTEN CONSENT OF SELLER.
7.17
TAXES, PRORATIONS AND CLOSING COSTS.
(A)
TAXES.
(I)
PURCHASER WILL PAY ALL TAXES, INCLUDING SALES, USE, TRANSFER AND
DOCUMENTARY TRANSFER TAXES, ARISING IN CONNECTION WITH THE SALE AND TRANSFER OF
THE MEMBERSHIP INTEREST.
SELLER AND PURCHASER WILL EACH PAY ITS OWN INCOME
TAXES.
STATE AND LOCAL REAL AND PERSONAL PROPERTY TAXES RELATING TO THE COMPANY
FOR THE TAX YEAR OF THE CLOSING WILL BE PRORATED BETWEEN PURCHASER AND SELLER ON
THE FOLLOWING BASIS:
SELLER IS TO BE RESPONSIBLE FOR ALL SUCH TAXES FOR THE
PERIOD UP TO THE CLOSING; AND PURCHASER IS TO BE RESPONSIBLE FOR ALL SUCH TAXES
FOR THE PERIOD ON AND AFTER THE CLOSING.
ALL TAXES ASSESSED ON AN ANNUAL BASIS
WILL BE PRORATED ON THE ASSUMPTION THAT AN EQUAL AMOUNT OF TAXES APPLIES TO EACH
DAY OF THE YEAR, REGARDLESS OF HOW ANY INSTALLMENT PAYMENTS ARE BILLED OR MADE,
EXCEPT THAT PURCHASER WILL BEAR ALL SUPPLEMENTAL OR OTHER STATE AND LOCAL