AND
APPROVAL OF THE TRANSACTIONS CONTEMPLATED BY THE PLAN AND THIS AGREEMENT FROM
THE COMPANY BANKRUPTCY COURT AND THE BUYER BANKRUPTCY COURT, AS APPLICABLE.
NEITHER THE PLAN NOR THE DISCLOSURE STATEMENT NOR ANY OTHER MATERIAL DOCUMENT
RELATING TO THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE AMENDED, MODIFIED,
SUPPLEMENTED, WITHDRAWN OR REVOKED WITHOUT THE CONSENT OF BUYER; PROVIDED,
HOWEVER, THAT SUCH CONSENT SHALL NOT BE UNREASONABLY WITHHELD.
THE PARTIES
HERETO ACKNOWLEDGE AND AGREE THAT IT WOULD NOT BE UNREASONABLE FOR BUYER TO
DECLINE TO CONSENT TO ANY PLAN MODIFICATION WHICH WOULD REQUIRE THE
27
PAYMENT OF ANY ADDITIONAL CONSIDERATION BY BUYER UNDER THE PLAN OR WHICH WOULD
REDUCE OR IMPAIR THE COMPANY ASSETS OR INCREASE THE ASSUMED LIABILITIES.
IF THE
COMPANY CONFIRMATION ORDER, THE BUYER APPROVAL ORDER OR ANY OTHER ORDERS OF THE
COMPANY BANKRUPTCY COURT OR BUYER BANKRUPTCY COURT RELATING TO THIS AGREEMENT,
THE DISCLOSURE STATEMENT, THE SOLICITATION OF ACCEPTANCES OF THE PLAN OR
CONFIRMATION OF THE PLAN SHALL BE APPEALED BY ANY PERSON (OR A PETITION FOR
CERTIORARI OR MOTION FOR RECONSIDERATION, AMENDMENT, CLARIFICATION,
MODIFICATION, VACATION, STAY, REHEARING OR REARGUMENT SHALL BE FILED WITH
RESPECT TO ANY SUCH ORDER), BUYER AND THE COMPANY WILL COOPERATE IN TAKING SUCH
STEPS TO PROSECUTE DILIGENTLY SUCH APPEAL, PETITION OR MOTION, EACH OF BUYER AND
THE COMPANY SHALL USE REASONABLE BEST EFFORTS TO OBTAIN AN EXPEDITED RESOLUTION
OF ANY SUCH APPEAL, PETITION OR MOTION.
(D)
UPON CONSUMMATION OF THE CLOSING, BUYER SHALL FULLY SUPPORT THE
ALLOWED CLAIM AND SHALL NOT FILE ANY MOTION OR SEEK ANY HEARING CHALLENGING SUCH
ALLOWED CLAIM OR RECOVERY THEREUNDER.
FROM THE DATE OF THIS AGREEMENT UNTIL THE
EARLIER OF THE TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH ARTICLE VII AND
THE CONSUMMATION OF THE CLOSING, BUYER SHALL USE ITS COMMERCIALLY REASONABLE
EFFORTS TO OBTAIN THE SUPPORT OF THE BUYER COMMITTEE FOR THE AGREEMENT, THE
ALLOWED CLAIM AND THE TRANSACTIONS CONTEMPLATED HEREBY.
4.7
ACQUISITION PROPOSALS.
(A)
UNTIL THIS AGREEMENT HAS BEEN TERMINATED IN ACCORDANCE WITH
SECTION 7.1(A)(VIII) (AND THE PAYMENTS, IF ANY, REQUIRED TO BE MADE IN
CONNECTION WITH SUCH TERMINATION PURSUANT TO SECTION 7.2(B) HAVE BEEN MADE), THE
COMPANY SHALL NOT, AND SHALL CAUSE ITS REPRESENTATIVES, NOT TO, DIRECTLY OR
INDIRECTLY, (1) ENCOURAGE (INCLUDING BY WAY OF FURNISHING OR DISCLOSING
INFORMATION), SOLICIT, INITIATE, MAKE OR FACILITATE THE MAKING OF, OR TAKE ANY
OTHER ACTION TO FACILITATE ANY INQUIRIES OR THE MAKING OF ANY PROPOSAL THAT
CONSTITUTES OR MAY REASONABLY BE EXPECTED TO LEAD TO, ANY ACQUISITION PROPOSAL,
(2) PARTICIPATE IN ANY WAY IN DISCUSSIONS OR NEGOTIATIONS WITH, OR FURNISH OR
DISCLOSE ANY INFORMATION TO, ANY PERSON (OTHER THAN BUYER OR ANY OF ITS
REPRESENTATIVES) IN CONNECTION WITH ANY ACQUISITION PROPOSAL, (3) APPROVE OR
RECOMMEND, OR PROPOSE TO APPROVE OR RECOMMEND OR PUBLICLY ANNOUNCE IT IS
CONSIDERING APPROVING OR RECOMMENDING, ANY ACQUISITION PROPOSAL OR (4) ENTER
INTO ANY AGREEMENT, LETTER OF INTENT, AGREEMENT-IN-PRINCIPLE, ACQUISITION
AGREEMENT OR OTHER INSTRUMENT CONTEMPLATING OR OTHERWISE RELATING TO ANY
ACQUISITION PROPOSAL.
NOTWITHSTANDING THE FOREGOING, AT ANY TIME PRIOR TO THE
ENTRY OF THE COMPANY