OF THE ASSETS SET FORTH IN SUCH BID TO A PERSON
OTHER THAN SUCH QUALIFYING BIDDER. IN ADDITION, EACH BID SHALL CONTAIN SUCH
FINANCIAL AND OTHER INFORMATION THAT WILL ALLOW SELLER TO MAKE A REASONABLE
DETERMINATION AS TO THE QUALIFYING BIDDER'S FINANCIAL AND OTHER CAPABILITIES TO
CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY SUCH BID. THE SECURED LENDERS SHALL
BE DEEMED QUALIFYING BIDDERS AND SHALL BE EXEMPT FROM THE PROVISIONS OF THIS
SECTION 3.8.1 REQUIRING THE SUBMISSION OF BIDS. ANY SECURED LENDER BID, WHICH
MAY INCLUDE IN WHOLE OR IN PART A CREDIT BID FOR PURCHASED ASSETS THAT ARE
SECURED LENDER COLLATERAL, SHALL BE DEEMED A QUALIFYING BID WHEN MADE AT THE
ACUTION.
3.8.2
IN ORDER TO BE A QUALIFYING BID, A BID CONFORMING TO THE
REQUIREMENTS SET FORTH IN SECTION 3.8.1 (EXCEPT FOR SECURED LENDER BIDS) MUST BE
SUBMITTED TO SELLER'S COUNSEL SO AS TO BE RECEIVED NOT LATER THAN SEVEN (7)
BUSINESS DAYS PRIOR TO THE DATE SCHEDULED BY THE BANKRUPTCY COURT FOR THE SALE
HEARING (THE "BID DEADLINE"). SELLER'S COUNSEL SHALL PROMPTLY DELIVER A COPY OF
EACH QUALIFYING BID TO BUYER'S COUNSEL AND CREDITORS' COUNSEL. IN THE EVENT THAT
THERE ARE NO QUALIFYING BIDS, SELLER SHALL PROCEED TO SEEK BANKRUPTCY COURT
APPROVAL AT THE SALE HEARING FOR THE SALE OF THE PURCHASED ASSETS TO BUYER
PURSUANT TO THIS AGREEMENT.
3.8.3
IF SELLER RECEIVES ONE OR MORE QUALIFYING BIDS, SELLER SHALL,
UNLESS OTHERWISE ORDERED BY THE BANKRUPTCY COURT, CONDUCT THE AUCTION ON THE
DATE THAT IS NOT LESS THAN ONE (1) BUSINESS DAY PRIOR TO THE SALE HEARING, AT
SUCH TIME AND PLACE AS MAY BE REASONABLY ACCEPTABLE TO SELLER OR IS OTHERWISE
APPROVED BY THE BANKRUPTCY COURT. ONLY REPRESENTATIVES OF BUYER, SELLER, THE
SECURED LENDERS, THE CREDITORS COMMITTEE, AND ANY OTHER QUALIFYING BIDDERS SHALL
BE ENTITLED TO ATTEND AND BE HEARD AT THE AUCTION, AND ONLY BUYER AND QUALIFYING
BIDDERS SHALL BE ENTITLED TO MAKE ANY SUBSEQUENT OFFERS OR BIDS AT THE AUCTION.
3.8.4
NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION 3.8, PURSUANT
TO THE BIDDING PROCEDURES ORDER, A BID FOR ALL OR SUBSTANTIALLY ALL OF THE
PURCHASED ASSETS SHALL CONSTITUTE A QUALIFYING BID ONLY IF SUCH BID (I) IN
SELLER'S REASONABLE JUDGMENT AFTER CONSULTATION WITH ITS REPRESENTATIVES AND THE
SECURED LENDERS, IS LIKELY TO RESULT IN VALUE TO SELLER (TAKING INTO ACCOUNT THE
IMPACT OF ANY DELAY IN CLOSING THE TRANSACTION CONTEMPLATED BY SUCH BID,
PURCHASE PRICE ADJUSTMENTS INCLUDED THEREIN, AND ANY OTHER RELEVANT FACTORS) IN
AN AMOUNT GREATER THAN THE SUM OF (A) THE PURCHASE PRICE, PLUS (B) THE AMOUNT OF
THE BREAK-UP FEE, PLUS (C) THE AMOUNT OF THE EXPENSE REIMBURSEMENT, PLUS (D)
FIVE HUNDRED THOUSAND DOLLARS ($500,000); (II) CONTAINS NO DUE DILIGENCE
CONTINGENCIES; (III) IS ACCOMPANIED BY SUFFICIENT EVIDENCE THAT THE PERSON
SUBMITTING IT HAS THE FINANCIAL ABILITY TO CONSUMMATE SUCH TRANSACTION AND
CONTAINS NO FINANCING CONTINGENCIES; AND (IV) UNLESS SUCH BID IS MADE BY ONE OR
MORE OF THE SECURED LENDERS, PROVIDES FOR A DEPOSIT IN AN AMOUNT AT LEAST EQUAL
TO THE DEPOSIT