AND ESTABLISHED ANY ADEQUATE
ASSURANCE OF FUTURE PERFORMANCE BEFORE THE BANKRUPTCY COURT WITH RESPECT TO THE
ASSUMED CONTRACTS; (E) BUYERS SHALL BE FOUND TO BE A "GOOD FAITH" PURCHASER
WITHIN THE MEANING OF SECTION 363(M) OF THE BANKRUPTCY CODE;
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(F) BUYERS SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY LIABILITY OR OTHER
OBLIGATION OF SELLERS 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; (G) BUYERS SHALL HAVE NO LIABILITY FOR ANY EXCLUDED
LIABILITY; AND (H) THE RELEASES IN SECTION 6(P) ARE VALID, BINDING AND
ENFORCEABLE AGAINST DEBTORS, THEIR ESTATES AND SUCCESSORS AND ASSIGNS.
(III)
SELLERS SHALL PROVIDE TIMELY WRITTEN NOTICE
OF THIS AGREEMENT, THE PROPOSED SALE OF THE ACQUIRED ASSETS, THE SALE MOTION AND
THE BIDDING PROCEDURES MOTION TO (A) THE OFFICE OF THE UNITED STATES TRUSTEE FOR
THE SOUTHERN DISTRICT OF NEW YORK; (B) COUNSEL FOR ALL OFFICIAL COMMITTEES
APPOINTED IN THE CHAPTER 11 CASES; (C) COUNSEL FOR THE AGENT ACTING ON BEHALF OF
SELLERS' POST-PETITION LENDERS; (D) COUNSEL FOR THE AGENTS OR OTHER
REPRESENTATIVES ACTING ON BEHALF OF SELLERS' PRIMARY PRE-PETITION SECURED
CREDITORS; (E) THE THIRTY LARGEST CREDITORS OF THE BUSINESS BY DOLLAR VALUE AS
OF THE COMMENCEMENT OF THE CHAPTER 11 CASES, AS DETERMINED BASED ON THE
APPLICABLE RECORDS OF SELLERS; (F) ALL PERSONS ACTUALLY KNOWN TO SELLERS TO HAVE
ASSERTED ANY LIENS (OTHER THAN PERMITTED LIENS) IN OR UPON THE INTERESTS OF
SELLERS SPECIFICALLY IN THE ACQUIRED ASSETS, INCLUDING ALL APPLICABLE TAXING
AUTHORITIES; (G) ALL OTHER PARTIES THAT HAVE FILED A NOTICE OF APPEARANCE AND
DEMAND FOR SERVICE OF PAPERS IN THE CHAPTER 11 CASES UNDER RULE 2002 OF THE
FEDERAL RULES OF BANKRUPTCY PROCEDURE PROMULGATED UNDER THE BANKRUPTCY CODE; AND
(H) ANY OTHER PERSONS REQUIRED BY THE BANKRUPTCY COURT OR THE GUIDELINES OF THE
SOUTHERN DISTRICT OF NEW YORK, INCLUDING AS REQUIRED BY GENERAL ORDER M-331 OF
THE BANKRUPTCY COURT, OR AS REASONABLY REQUESTED BY BUYERS.
(IV)
SELLERS ACKNOWLEDGE AND AGREE THAT BUYERS HAVE
EXPENDED CONSIDERABLE TIME AND EXPENSE IN CONNECTION WITH THIS AGREEMENT AND THE
NEGOTIATION THEREOF AND THE IDENTIFICATION AND QUANTIFICATION OF ASSETS TO BE
INCLUDED IN THE ACQUIRED ASSETS.
IN CONSIDERATION THEREFOR, THE BIDDING
PROCEDURES MOTION SHALL INCLUDE A REQUEST FROM SELLERS FOR APPROVAL OF THE
BIDDING INCENTIVES AS ADMINISTRATIVE PRIORITY EXPENSES UNDER SECTIONS 503(B) AND
507(A)(1) OF THE BANKRUPTCY CODE.
(V)
NON-SOLICITATION.
FROM THE TIME OF
EXECUTION AND DELIVERY BY EACH SELLER AND BUYER OF THIS AGREEMENT UNTIL THE
BIDDING PROCEDURES ORDER IS ENTERED BY THE BANKRUPTCY COURT AND FOLLOWING ENTRY
OF THE SALE ORDER (BOTH PERIODS BEING REFERRED TO AS THE "NON-SOLICITATION
PERIOD"), SELLERS SHALL NOT, AND SHALL CAUSE EACH OF THE TARGET COMPANIES AND,
TO THE EXTENT PERMITTED IN THE TIWEST JOINT VENTURE DOCUMENTS, TIWEST NOT TO,
NOR SHALL THEY AUTHORIZE OR PERMIT ANY OF THEIR RESPECTIVE REPRESENTATIVES OR
AFFILIATES