“Section 5.18 Chapter 11 Plan.
(a) The parties agree that Purchaser has the right to elect, by providing written notice to the Sellers at any time prior to the Closing (the “Chapter 11 Notice”), to direct that the transactions contemplated by this Agreement shall instead be effected pursuant to a plan under chapter 11 of the Bankruptcy Code (the “Plan”), containing (i) terms and provisions that result, on the effective date of such Plan, in substantially the same economic benefits for the Sellers and their estates with respect to the cash portion of the Purchase Price as otherwise contemplated by this Agreement by means of the use of a plan administrator or other mechanism to administer claims and use and distribute available cash, (ii) terms and provisions that result, on the effective date of such Plan, in substantially the same economic and control benefits for Purchaser with respect to the Purchased Assets and the Business, and (iii) such other plan terms and provisions requested by Purchaser, including terms and provisions designed to preserve net operating losses and other tax attributes of Cosi. In addition the Plan shall contain such provisions set forth in the Operating Agreement and Section 5.18 hereof.
(b) If a Chapter 11 Notice is provided, the Sellers shall use commercially reasonable efforts to prosecute and obtain confirmation and effectiveness of the Plan.
(c) Purchaser shall bear all reasonable, actually incurred, incremental, out-of-pocket costs incurred by the Sellers as a result of electing to proceed with the Plan, including the Sellers’ legal fees and expenses, whether or not such Plan is ultimately concluded.
(d) At any time prior to the effectiveness of the Plan, Purchaser shall have the right, by providing written notice to the Sellers, to withdraw the Chapter 11 Notice and revert to the transactions contemplated by this Agreement.”
12. Section 6.01(b) of the Purchase Agreement is amended to delete “after the Sale Hearing and”.
13. Section 7.01(a)(i) of the Purchase Agreement is amended to replace the first two instances of “Closing Date” with “Transfer Date”.
14. Section 7.02(a)(i) of the Purchase Agreement is amended to replace the first two instances of “Closing Date” with “Transfer Date”.
15. Sections 7.02(f), 7.02(n), 8.01(e), 8.01(i), 8.01(j), 8.01(k) 8.02(b) and 8.02(c) of the Purchase Agreement are restated to read “[Reserved].”
16. A new Section 8.01(n) is added to the Purchase Agreement reading as follows:
“(n) by the Purchaser by written notice to the Sellers in accordance with Section 5.03.”
17. A new Section 8.01(o) is added to the Purchase Agreement reading as follows:
“(o) by the Purchaser, upon the effectiveness of the Plan.”
18. Article IX.A of the Purchase Agreement is restated in its entirety as follows: