material development in the Business, the Transferred Assets, or the
Assumed Liabilities.
5.6
Bankruptcy Proceedings.
(A)
PURCHASER AND SELLER ACKNOWLEDGE THAT THIS AGREEMENT, THE SALE OF
THE TRANSFERRED ASSETS, AND THE ASSUMPTION AND ASSIGNMENT OF THE FACILITIES
LEASES OF SELLER ARE SUBJECT TO BANKRUPTCY COURT APPROVAL.
(B)
SELLER HAS
FILED WITH THE BANKRUPTCY COURT (I) A PETITION FOR
REORGANIZATION RELIEF PURSUANT TO CHAPTER 11 OF THE BANKRUPTCY CODE.
SELLER
AGREES TO FILE NO LATER THAN NOVEMBER 21, 2006: (I) THE BIDDING PROCEDURES
MOTION, TOGETHER WITH APPROPRIATE SUPPORTING PAPERS AND NOTICES, SEEKING THE
ENTRY, ON THE SAME DAY AS THE FILING OF SUCH MOTION, OF THE BIDDING PROCEDURES
ORDER, AND (II) THE SALE MOTION, TOGETHER WITH APPROPRIATE SUPPORTING PAPERS AND
NOTICES, SEEKING THE ENTRY, BY NO LATER THAN JANUARY 18, 2007, OF THE SALE
ORDER.
(C)
SELLER SHALL USE ITS COMMERCIALLY REASONABLE EFFORTS TO OBTAIN
ENTRY OF (I) THE BIDDING PROCEDURES ORDER NO LATER THAN DECEMBER 15, 2006 AND
(II) THE SALE ORDER NO LATER THAN FEBRUARY 2, 2007.
(D)
IN THE EVENT AN APPEAL IS TAKEN OR A STAY PENDING APPEAL IS
REQUESTED, FROM EITHER THE BIDDING PROCEDURES ORDER OR THE SALE ORDER, SELLER
SHALL IMMEDIATELY NOTIFY PURCHASER OF SUCH APPEAL OR STAY REQUEST AND SHALL
PROVIDE TO PURCHASER PROMPTLY A COPY OF THE RELATED NOTICE OF APPEAL OR ORDER OF
STAY.
SELLER SHALL ALSO PROVIDE PURCHASER WITH WRITTEN NOTICE OF ANY MOTION OR
APPLICATION FILED IN CONNECTION WITH ANY APPEAL FROM EITHER OF SUCH ORDERS.
(E)
FROM AND AFTER THE DATE HEREOF, AND TO THE EXTENT PURCHASER IS THE
SUCCESSFUL BIDDER AT THE AUCTION, SELLER SHALL NOT TAKE ANY ACTION THAT IS
INTENDED, OR FAIL TO TAKE ANY ACTION THE INTENT
30
OF WHICH FAILURE TO ACT WOULD RESULT IN THE REVERSAL, VOIDING, MODIFICATION OR
STAYING OF THE BIDDING PROCEDURES ORDER OR THE SALE ORDER.
(F)
DURING THE PRE-CLOSING PERIOD, SELLER SHALL USE ITS REASONABLE
EFFORTS TO PROVIDE SUCH PRIOR NOTICE AS MAY BE REASONABLE UNDER THE
CIRCUMSTANCES BEFORE FILING ANY PAPERS IN THE BANKRUPTCY CASE THAT RELATE, IN
WHOLE OR IN PART, TO THIS AGREEMENT OR PURCHASER.
(G)
NOT LATER THAN DECEMBER 8, 2006, PURCHASER AND SELLER SHALL AGREE
ON THE TEXT OF A PROPOSED SALE ORDER IN CUSTOMARY FORM AND OTHERWISE REASONABLY
ACCEPTABLE TO PURCHASER, WHEREUPON SUCH SALE ORDER SHALL BE ATTACHED HERETO AS
EXHIBIT C.
(H)
THIS AGREEMENT SHALL BE EXPRESSLY SUBJECT TO THE BIDDING
PROCEDURES, AS APPROVED BY THE BANKRUPTCY COURT PURSUANT TO THE BIDDING
PROCEDURES ORDER INCLUDING, WITHOUT LIMITATION, THE TERMS AND CONDITIONS
GOVERNING THE BACKUP BIDDER AS DEFINED THEREIN.
5.7
Termination Fee.
If the Bankruptcy Court approves an Alternative
Transaction, and such Alternative Transaction is consummated, Seller shall pay
Purchaser a termination fee equal to $1,000,000 (the "Termination Fee") upon
consummation of such Alternative Transaction.
If this Agreement is terminated
for any reason other than by Seller pursuant to Section 9.1(d), Seller shall pay
Purchaser upon termination of this Agreement.
The Termination Fee shall be
payable as allowed administrative expenses under Sections