BY NOTICE TO SELLER, ELECT TO
EXCLUDE ANY ONE OR MORE OF THE ASSIGNED CONTRACTS FROM THIS TRANSACTION. ANY
ASSIGNED CONTRACT IDENTIFIED IN SUCH A NOTICE (AN "EXCLUDED CONTRACT") SHALL NO
LONGER BE AN ASSIGNED CONTRACT. THERE SHALL BE NO REDUCTION IN THE PURCHASE
PRICE AS A RESULT OF BUYER'S ELECTION TO EXCLUDE ANY ONE OR MORE OF THE ASSIGNED
CONTRACTS FROM THIS TRANSACTION PURSUANT TO THIS SECTION 3.6.
3.7
BANKRUPTCY COURT APPROVAL. PROMPTLY FOLLOWING THE EFFECTIVE DATE,
SELLER SHALL FILE ONE OR MORE MOTIONS WITH THE BANKRUPTCY COURT REQUESTING, AND
SHALL THEREAFTER USE COMMERCIALLY REASONABLE EFFORTS TO OBTAIN, ENTRY OF AN
ORDER APPROVING THE BIDDING PROCEDURES (THE "BIDDING PROCEDURES ORDER") AND AN
ORDER (THE "APPROVAL ORDER") WHICH (I) APPROVES THE SALE OF THE PURCHASED ASSETS
TO BUYER ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND AUTHORIZES
SELLER TO PROCEED WITH THIS TRANSACTION, (II) INCLUDES A SPECIFIC FINDING THAT
BUYER IS A GOOD FAITH PURCHASER OF THE PURCHASED ASSETS AND IS ENTITLED TO THE
PROTECTION AFFORDED BY SECTION 363(M) OF THE BANKRUPTCY CODE, (III) STATES THAT
THE SALE OF THE PURCHASED ASSETS TO BUYER SHALL BE FREE AND CLEAR OF ALL LIENS
WHATSOEVER, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, AND (IV) APPROVES
SELLER'S ASSUMPTION AND ASSIGNMENT OF THE ASSIGNED CONTRACTS PURSUANT TO SECTION
365 OF THE BANKRUPTCY CODE AND ORDERS BUYER TO PAY ANY CURE AMOUNTS DETERMINED
BY THE BANKRUPTCY COURT TO BE PAYABLE TO THE OTHER PARTIES TO SUCH ASSIGNED
CONTRACTS AS A CONDITION TO SUCH ASSUMPTION AND ASSIGNMENT.
3.8
BUYER'S BIDDING PROTECTION AND BIDDING PROCEDURES. THE FOLLOWING
BIDDING PROCEDURES (THE "BIDDING PROCEDURES") SHALL BE EMPLOYED WITH RESPECT TO
THIS TRANSACTION AND SHALL BE REFLECTED IN THE BIDDING PROCEDURES ORDER. BUYER
ACKNOWLEDGES AND AGREES THAT THE BIDDING PROCEDURES MAY BE MODIFIED OR
SUPPLEMENTED BY OTHER CUSTOMARY PROCEDURES NOT INCONSISTENT WITH THE MATTERS SET
FORTH IN THIS SECTION 3.8 AND THE TERMS OF THIS
8
AGREEMENT. THE SALE OF THE PURCHASED ASSETS MAY BE SUBJECT TO COMPETITIVE
BIDDING ONLY AS SET FORTH IN THIS SECTION 3.8:
3.8.1
ANY PERSON THAT IS FINANCIALLY CAPABLE OF CONSUMMATING THE
TRANSACTION PROPOSED BY SUCH PERSON (A "QUALIFYING BIDDER") MAY SUBMIT A WRITTEN
OFFER (A "BID") STATING THAT (I) SUCH QUALIFYING BIDDER OFFERS TO PURCHASE, AND
IS PREPARED TO ENTER INTO A LEGALLY BINDING PURCHASE AND SALE OR SIMILAR
AGREEMENT FOR THE PURCHASE OF, ALL OF THE, OR CERTAIN SPECIFIED, PURCHASED
ASSETS UPON TERMS AND CONDITIONS THAT ARE IN THE AGGREGATE AND UNDER THE
CIRCUMSTANCES GENERALLY NO LESS FAVORABLE TO SELLER THAN THOSE CONTAINED HEREIN
(AS DETERMINED BY SELLER IN ITS REASONABLE BUSINESS JUDGMENT IN CONSULTATION
WITH THE SECURED LENDERS, TAKING INTO ACCOUNT THE ASSETS PROPOSED TO BE
ACQUIRED, THE IMPACT OF ANY DELAY IN CLOSING THE TRANSACTION CONTEMPLATED BY
SUCH BID, PURCHASE PRICE ADJUSTMENTS INCLUDED THEREIN, AND ANY OTHER RELEVANT
FACTORS); (II) SUCH QUALIFYING BIDDER IS FINANCIALLY CAPABLE OF CONSUMMATING ITS
PROPOSED TRANSACTION; AND (III) SUCH OFFER IS IRREVOCABLE UNTIL THE ENTRY OF A
FINAL ORDER APPROVING A SALE