Bankruptcy Court Approval (a) As soon as practicable, but in any event within four business days following the execution of this Agreement, the Sellers shall file a motion in form and substance reasonably satisfactory to the Purchaser (the "Motion") under Sections 105, 363 and 1146(c) of the Bankruptcy Code seeking entry of an order (the "Bankruptcy Court Approval") approving this Agreement and the transactions contemplated hereby and containing the provisions set forth in (i) through (xi) below. The Bankruptcy Court Approval, substantially in the form of which is attached hereto as Exhibit B, shall, among other things: (i) grant the relief requested in the Motion; (ii) ratify and approve the execution and delivery of this Agreement by the Sellers and the Trustee on behalf of the Sellers and authorize the Sellers' performance hereunder and to authorize them to execute and deliver any additional documents and instruments requested by the Purchaser and to perform thereunder in order to carry out the provisions of and transactions contemplated by this Agreement; (iii) authorize and direct the Sellers to sell the Target Securities held by them, pursuant to the terms and conditions herein, to the Purchaser, free and clear of all and any Liens, liabilities and Claims of every kind or nature; (iv) authorize and direct the Trustee on behalf of the Sellers to vote the Target Securities in accordance with the provisions of Section 5.4; (v) determine that the Purchaser is a good faith purchaser pursuant to Section 363(m) of the Bankruptcy Code; (vi) determine that the Purchaser is not deemed to have, de facto or otherwise, merged with or into the Sellers or to be a mere continuation of the Sellers; (vii) determine that the Purchase Price is a fair and reasonable price for the Target Securities held by the Sellers; (viii) confirm the adequacy of notice to all creditors and parties in interest; (ix) provide for the retention of jurisdiction in the Bankruptcy Court over matters relating to the transactions contemplated in this Agreement as they relate to the Sellers; (x) exempt the transactions contemplated hereby from transfer taxes pursuant to Section 1146(c) of the Bankruptcy Code; and (xi) declare that neither the Company nor any Subsidiary of the Company nor any of their respective assets or properties is directly or indirectly liable for or subject to any Claim that has been or may be asserted against the Sellers or any of them, the Consolidated Estate, or any affiliate (other than the Company or its Subsidiaries) of the Sellers or of the Company or its Subsidiaries to the extent that such Claim is based in whole or in part upon (i) actions (or inactions) of or by the Sellers, the Consolidated Estate, any of their affiliates or any Person acting in concert with them (other than the Company or its Subsidiaries) or (ii) the fact that the Company or any of its Subsidiaries were at any time affiliates of the Sellers or any of them, including, without limitation, (A) claims that have been scheduled in the Bankruptcy Case, (B) claims evidenced by proofs of claim filed in the Bankruptcy Case, (C) claims relating to Taxes, (D) claims under ERISA, and (E) Environmental Claims, and enjoin any and all holders of any such claim from asserting, prosecuting or otherwise pursuing any such claim against the Company or any of its Subsidiaries or any of their respective assets or properties; provided, that if the Bankruptcy Court will not grant such declaration and injunction for all or any of the matters enumerated in subparagraphs (A) through (E) above, the Sellers and the Consolidated Estate shall and hereby do (in the event that such injunction and declaration is not granted and subject to the approval of the Bankruptcy Court without any stay thereof being in force), jointly and severally, indemnify Parent, the Purchaser and their successors, permitted assigns and affiliates, and their respective officers, directors, employees, agents, representatives and affiliates (collectively, the "Purchaser Indemnified Parties") from and against and shall reimburse the same for and in respect of any and all losses, costs, fines, liabilities, claims, penalties, damages (other than consequential damages) and expenses (including all legal fees and expenses) of any nature or kind, known or unknown, fixed, accrued, absolute or contingent, liquidated or unliquidated (collectively "Losses") which may be suffered, sustained or incurred by, or claimed or assessed against, any of them or to which any of them may be subject, in connection with any and all Claims, suits or Losses which arise from or are related to the matters set forth above but not so covered by such declaration and injunction; provided, however, that any claims for indemnification under this Section 5.5(a) that are not asserted against the Sellers and the Consolidated Estate by the Purchaser Indemnified Parties on or before substantial consummation of any Chapter 11 plan for the Sellers shall be forever barred and discharged. The Sellers shall promptly notify the Purchaser of any action taken by the Bankruptcy Court with respect to the approval required hereunder.
Final Order If the Interim Order is obtained and the Arrangement Resolution is approved at the Company Meeting in accordance with the terms of the Interim Order, the Company shall take all steps necessary to submit the Arrangement to the Court and diligently pursue an application for the Final Order pursuant to section 182 of the OBCA, as soon as reasonably practicable, but in any event not later than three Business Days, after the Arrangement Resolution is passed at the Company Meeting as provided for in the Interim Order.
Court Approval This Agreement is subject to approval of the courts with respect to participating carriers in the hands of receivers or trustees.
Interim Order The notice of motion for the application referred to in Section 2.1(a) shall request that the Interim Order provide:
Title, Conservation and Disposition of REO Property (a) This Section shall apply only to REO Properties acquired for the account of the Trustee and shall not apply to any REO Property relating to a Mortgage Loan which was purchased or repurchased from the Trustee pursuant to any provision hereof. In the event that title to any such REO Property is acquired, the Servicer shall cause the deed or certificate of sale to be issued in the name of the Trustee, on behalf of the Certificateholders.
Release of Pre-Distribution Claims (a) Except (i) as provided in Section 8.1(b), (ii) as may be otherwise expressly provided in this Agreement or any Ancillary Agreement and (iii) for any matter for which any Party is entitled to indemnification or contribution pursuant to this Article VIII, each Party, for itself and each member of its respective Group, their respective Affiliates and all Persons who at any time prior to the Relevant Time were directors, officers, agents or employees of any member of their Group (in their respective capacities as such), in each case, together with their respective heirs, executors, administrators, successors and assigns, do hereby remise, release and forever discharge the other Parties and the other members of such other Parties’ Group, their respective Affiliates and all Persons who at any time prior to the Relevant Time were shareholders, directors, officers, agents or employees of any member of such other Parties (in their respective capacities as such), in each case, together with their respective heirs, executors, administrators, successors and assigns, from any and all Liabilities whatsoever, whether at Law or in equity (including any right of contribution), whether arising under any Contract, by operation of Law or otherwise, existing or arising from any acts or events occurring or failing to occur or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed on or before the Relevant Time, including in connection with the Plan of Separation and all other activities to implement the Distributions and any of the other transactions contemplated hereunder and under the Ancillary Agreements.
PRELIMINARY APPROVAL OF SETTLEMENT 3. Promptly upon execution of this Stipulation, Lead Plaintiffs will move for preliminary approval of the Settlement, certification of the Settlement Class for settlement purposes only, and the scheduling of a hearing for consideration of final approval of the Settlement, which motion shall be unopposed by Defendants. Concurrently with the motion for preliminary approval, Lead Plaintiffs shall apply to the Court for, and Defendants shall agree to, entry of the Preliminary Approval Order, substantially in the form attached hereto as Exhibit A. RELEASE OF CLAIMS
Sale Order The Sale Order shall, among other things, (a) approve, pursuant to sections 105, 363 and 365 of the Bankruptcy Code, (i) the execution, delivery and performance by Sellers of this Agreement, (ii) the sale of the Acquired Assets to Buyer on the terms set forth herein and free and clear of all Encumbrances (other than Permitted Encumbrances), and (iii) the performance by Sellers of their obligations under this Agreement, (b) authorize and empower Sellers to assume and assign to Buyer the Transferred Contracts, (c) find that Buyer is a “good faith” purchaser within the meaning of section 363(m) of the Bankruptcy Code, find that Buyer is not a successor to any Seller, and grant Buyer the protections of section 363(m) of the Bankruptcy Code, (d) find that Buyer shall have no Liability or responsibility for any Liability or other obligation of any Seller arising under or related to the Acquired Assets other than as expressly set forth in this Agreement, including successor or vicarious Liabilities of any kind or character, including any theory of antitrust, environmental, successor, or transferee Liability, labor law, de facto merger, or substantial continuity, (e) find that Buyer has provided adequate assurance (as that term is used in section 365 of the Bankruptcy Code) of future performance in connection with the assumption of the Transferred Contracts, (f) find that Buyer shall have no Liability for any Excluded Liability, (g) find that the consideration provided by Buyer pursuant to this Agreement constitutes reasonably equivalent value and fair consideration for the Acquired Assets, (h) find that Buyer and Sellers did not engage in any conduct which would allow this Agreement to be set aside pursuant to section 363(n) of the Bankruptcy Code and (i) order that, notwithstanding the provisions of the Federal Rules of Bankruptcy Procedures 6004(h) and 6006(d), the Sale Order is not stayed and is effective immediately upon entry. Buyer agrees that it will promptly take such actions as are reasonably requested by any Seller to assist in obtaining Bankruptcy Court approval of the Sale Order, including furnishing affidavits or other documents or information for filing with the Bankruptcy Court for purposes, among others, of (A) demonstrating that Buyer is a “good faith” purchaser under section 363(m) of the Bankruptcy Code and (B) establishing adequate assurance of future performance within the meaning of section 365 of the Bankruptcy Code.
Final Approval Order 62. The Parties shall jointly seek entry of a Final Approval Order, the text of which the Parties shall agree upon. The dismissal orders, motions or stipulation to implement this Section shall, among other things, seek or provide for a dismissal with prejudice and waiving any rights of appeal.
Title, Management and Disposition of REO Property In the event that title to any Mortgaged Property is acquired in foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale shall be taken, pursuant to a limited power of attorney in the form attached hereto as Exhibit H, in the name of the Trustee or its nominee (which in no event shall be the Special Servicer) in trust for the benefit of the Certificateholders, or in the event the Trustee is not authorized or permitted to hold title to real property in the state where the REO Property is located, or would be adversely affected under the “doing business” or tax laws of such state by so holding title, the deed or certificate of sale shall be taken in the name of such Person or Persons as shall be consistent with an Opinion of Counsel obtained by the Special Servicer (with a copy delivered to the Trustee) from any attorney duly licensed to practice law in the state where the REO Property is located. Any such Opinion of Counsel will be deemed a Servicing Advance, reimbursable to the Special Servicer in accordance with Section 3.04. The Person or Persons holding such title other than the Trustee shall acknowledge in writing that such title is being held as nominee for the Trustee. The Special Servicer shall manage, conserve, protect and operate each REO Property for the Trustee solely for the purpose of its prompt disposition and sale. The Special Servicer, either itself or through an agent selected by the Special Servicer, shall manage, conserve, protect and operate the REO Property in the same manner that it manages, conserves, protects and operates other foreclosed property for its own account, and in the same manner that similar property in the same locality as the REO Property is managed. The Special Servicer shall attempt to sell the same (and may temporarily rent the same for a period not greater than one year, except as otherwise provided below) on such terms and conditions as the Special Servicer deems to be in the best interest of the Trustee and the Certificateholders. In the event that the Trust Fund acquires any REO Property in connection with a default or imminent default on a Transferred Mortgage Loan, the Special Servicer shall dispose of such REO Property not later than the end of the third taxable year after the year of its acquisition by the Trust Fund unless the Special Servicer has applied for and received a grant of extension from the Internal Revenue Service (and provide a copy of the same to the Master Servicer and the Trustee) to the effect that, under the REMIC Provisions and any relevant proposed legislation and under applicable state law, the applicable Trust REMIC may hold REO Property for a longer period without adversely affecting the REMIC status of such REMIC or causing the imposition of a federal or state tax upon such REMIC and has notified the Master Servicer and the Trustee of such extension by providing a copy of the application and the grant of such extension to the Trustee and the Master Servicer. If the Special Servicer has received such an extension (and provided a copy of the same to the Master Servicer and the Trustee), then the Special Servicer shall continue to attempt to sell the REO Property for its fair market value for such period longer than three years as such extension permits (the “Extended Period”). If the Special Servicer has not received such an extension and the Special Servicer is unable to sell the REO Property within the period ending three months before the end of such third taxable year after its acquisition by the Trust Fund or if the Special Servicer has received such an extension, and the Special Servicer is unable to sell the REO Property within the period ending three months before the close of the Extended Period, the Special Servicer shall, before the end of the three-year period or the Extended Period, as applicable, (i) purchase such REO Property at a price equal to the REO Property’s fair market value or (ii) auction the REO Property to the highest bidder (which may be the Special Servicer) in an auction reasonably designed to produce a fair price prior to the expiration of the three-year period or the Extended Period, as the case may be. The Trustee shall sign any document reasonably requested by, and at the expense of, the Special Servicer, or take any other action reasonably requested by the Special Servicer which would enable the Special Servicer, on behalf of the Trust Fund, to request such grant of extension. In all cases, the disposition of REO Property shall be carried out by the Special Servicer at such price, and upon such terms and conditions, as the Servicer deems to be in the best interests of the Trust Fund. Notwithstanding any other provisions of this Agreement, no REO Property acquired by the Trust Fund shall be rented (or allowed to continue to be rented) or otherwise used by or on behalf of the Trust Fund in such a manner or pursuant to any terms that would: (i) cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code; or (ii) subject any Trust REMIC to the imposition of any federal income taxes on the income earned from such REO Property, including any taxes imposed by reason of Sections 860F or 860G(c) of the Code, unless the Special Servicer has agreed to indemnify and hold harmless the Trust Fund with respect to the imposition of any such taxes. The Special Servicer shall also maintain on each REO Property fire and hazard insurance with extended coverage in amount which is at least equal to the maximum insurable value of the improvements which are a part of such property, liability insurance and, to the extent required and available under the Flood Disaster Protection Act of 1973, as amended, flood insurance in the amount required above. The proceeds of sale of the REO Property shall be promptly deposited in the Custodial Account. As soon as practical thereafter the expenses of such sale shall be paid and the Special Servicer shall reimburse itself for any related unreimbursed Servicing Advances, unpaid Servicing Fees, unreimbursed Monthly Advances made pursuant to this Section or Section 4.03 or the REO Disposition Fee. The Special Servicer shall make advances of all funds necessary for the proper operation, management and maintenance of the REO Property, including the cost of maintaining any hazard insurance pursuant to Section 3.10, such advances to be reimbursed from the disposition or liquidation proceeds of the REO Property. The Special Servicer shall make monthly distributions on each Remittance Date to the Master Servicer of the net cash flow from the REO Property (which shall equal the revenues from such REO Property net of the expenses described in this Section 3.17 and of any reserves reasonably required from time to time to be maintained to satisfy anticipated liabilities for such expenses).
