Many thanks for your reply which is very helpful but one thing is not clear from the detail :-
In the event that the Seller does either elect or get forced into Bankruptcy proceedings within 90 days of our planned transaction, can we still continue to use the assets we've purchased e.g. the software codes, the trademarks etc. or will we be forced to stop?
Response 1: Yes, you can continue to use the assets you have purchased unless the Bankruptcy Court issues an Order stopping you from using the assets until any action brought by the Bankruptcy Trustee to avoid the transaction is resolved.
Thanks for your response and explanation of the position regarding preference transactions etc. however I'm unclear whether the Seller declaring bankruptcy either voluntarily or involuntarily within 90 days would mean that we'd be unable to continue to use the assets e.g. software code, trademarks etc. which we are purchasing or if we'd be forced to stop using these by the Court regardless of whether we've paid a Fair Market Value for them or not but just because they (the Court) are defining the transaction as a preference transaction?
Response 2: You can continue to use the assets you have purchased unless the Bankruptcy Court issues an Order stopping you from using the assets until any action brought by the Bankruptcy Trustee to avoid the transaction is resolved. So, continue to use the assets until the Court stops you from using them. This means that you can still use the assets while action is pending in the Bankruptcy Court regarding the assets. Unless the Bankruptcy Court issues a Temporary Restraining Order against the use of the assets, you can continue to use the assets.
I assume that paying over independently assessed Fair Market Value would negate this risk?
Response 3: No, unfortunately not and you should not do that. You should not pay more than the independently assessed Fair Market Value. Paying more than the value of the assets would not deter a Bankruptcy Trustee from pursuing the transaction under a preference action.