THE BANKRUPTCY CASE
WHICH WOULD BE CONTRARY TO OR INCONSISTENT WITH THIS AGREEMENT OR ANY OF THE
TERMS HEREOF, AND ANY PLAN OF REORGANIZATION OF SELLER OR ORDER CONFIRMING SUCH
PLAN SHALL IN NO WAY ADVERSELY AFFECT THE RIGHTS OF PURCHASER UNDER THIS
AGREEMENT.
29
(B)
SELLER SHALL USE ITS COMMERCIALLY REASONABLE EFFORTS SO THAT THE
BANKRUPTCY COURT ENTERS A "SALE PROCEDURES ORDER", SUBSTANTIALLY IN THE FORM
ATTACHED HERETO AS SCHEDULE 7.15(B) (AND WHICH, AS ENTERED BY THE BANKRUPTCY
COURT, IS IN A FORM REASONABLY ACCEPTABLE TO PURCHASER, SELLER, AND THEIR
RESPECTIVE COUNSEL) THAT, AMONG OTHER THINGS: (I) NAMES PURCHASER AS THE
"STALKING HORSE" WITH RESPECT TO THE MEMBERSHIP INTEREST, (II) IF THERE IS AN
OVERBID AS PROVIDED HEREIN, REQUIRES THE PAYMENT OF TWO HUNDRED FIFTY THOUSAND
DOLLARS ($250,000) AS A BREAK UP FEE (THE "BREAK-UP FEE") UNDER THE
CIRCUMSTANCES AND IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, (III) REQUIRES
AN INITIAL OVERBID AT LEAST FIVE HUNDRED THOUSAND DOLLARS ($500,000) IN CASH
GREATER THAN THE PURCHASE PRICE, (IV) REQUIRES ALL OVERBIDS BE ACCOMPANIED BY A
DOWN PAYMENT EQUAL TO TEN PERCENT (10%) OF THE PURCHASE PRICE OFFERED BY THE
OVERBIDDER, (V) REQUIRES THAT EACH BIDDER PROVIDE (A) WRITTEN EVIDENCE
SATISFACTORY TO SELLER DEMONSTRATING THAT SUCH BIDDER (1) HAS THE FINANCIAL
ABILITY TO CONSUMMATE THE PURCHASE OF THE MEMBERSHIP INTEREST AND ITS
OBLIGATIONS TO PERFORM UNDER THE DEFINITIVE PURCHASE AND SALE AGREEMENT
DESCRIBED IN 7.15(B)(VI) HEREIN NO LATER THAN TEN (10) DAYS FOLLOWING THE
HEARING ON THE SALE ORDER; (2) IS NOT AFFILIATED WITH PURCHASER OR SELLER (AND
SUCH PERSON IS NOT A CREDITOR OF SELLER OR SELLER'S AFFILIATE) AND (B) EVIDENCE
TO SELLER AND THE BANKRUPTCY COURT THAT IT IS A BONA FIDE PURCHASER AND IS
WILLING AND ABLE TO COVER ITS OWN LEGAL COUNSEL FEES AND OTHER COSTS ASSOCIATED
WITH THE SALE OF THE MEMBERSHIP INTEREST, (VI) REQUIRES THE DELIVERY TO SELLER
OF AN EXECUTED COPY OF A DEFINITIVE PURCHASE AND SALE AGREEMENT HAVING THE SAME
TERMS AND CONDITIONS AS THOSE SET FORTH IN THIS AGREEMENT (EXCEPT FOR
THE
PURCHASE PRICE, THE TERMS OF (I) THROUGH (IX) OF THIS SUBSECTION (B), AND THE
REASONABLE EXTENSION OF THE DATES SET FORTH IN SUB-SECTIONS 12.01(A) (III),
(IV), AND (VII) NECESSARY OR APPROPRIATE IN LIGHT OF SUCH OVERBID) FOR A PRICE
THAT EXCEEDS THE PURCHASE PRICE BY AT LEAST $500,000, NO LATER THAN FIVE (5)
DAYS PRIOR TO THE HEARING ON THE SALE ORDER, (VII) REQUIRES SUBSEQUENT BIDDING
INCREMENTS OF AT LEAST TWO HUNDRED AND FIFTY THOUSAND DOLLARS ($250,000.00),
(VIII) REQUIRES THAT ANY QUALIFIED BID, OTHER THAN PURCHASER'S BID PURSUANT TO
THIS AGREEMENT, BE DELIVERED TO SELLER AND PURCHASER ON OR BEFORE THE DEADLINE
ESTABLISHED BY THE BANKRUPTCY COURT, AND (IX) IF PURCHASER SUBMITS THE
SUCCESSFUL OVERBID, PERMITS PURCHASER TO CREDIT THE AMOUNT OF THE BREAK-UP FEE
AGAINST SUCH OVERBID.
(C)
SELLER SHALL USE ITS COMMERCIALLY REASONABLE EFFORTS SO THAT THE
BANKRUPTCY COURT APPROVES THE SALE ORDER, SUBSTANTIALLY IN THE FORM ATTACHED
HERETO AS SCHEDULE 7.15(C) (AND WHICH, AS ENTERED