`
`Schedule 1
`
`Bidding Procedures
`
`
`
`
`RLF1 31206152v.1
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`Case 24-10628-KBO Doc 536-1 Filed 07/16/24 Page 2 of 22
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`
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`
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`IN THE UNITED STATES BANKRUPTCY COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`In re
`
`WOM S.A., et al.,1
`
`
`
`
`
`
`Chapter 11
`
`Case No. 24-10628 (KBO)
`
`(Jointly Administered)
`
`
`
`Debtors.
`
`BIDDING PROCEDURES
`
`On April 1, 2024 (the “Petition Date”), the above-captioned debtors and debtors in
`possession (collectively, the “Debtors”) filed voluntary petitions for relief under chapter 11 of
`title 11 of the United States Code (the “Bankruptcy Code”) in the United States Bankruptcy Court
`for the District of Delaware (the “Court”).
`
`On [•], 2024, the Court entered the Order (I)(A) Approving Bidding Procedures, (B)
`Scheduling Certain Dates with Respect Thereto, (C) Approving the Form and Manner of Notice
`Thereof (D) Authorizing the Designation of a Stalking Horse Bidder, (E) Scheduling a Transaction
`Hearing, and (F) Approving Procedures for the Assumption and Assignment of Executory
`Contracts and Unexpired Leases and (II) Granting Related Relief [D.I. [•]] (the “Bidding
`Procedures Order”),2 by which the Court approved the following Bidding Procedures.
`
`These Bidding Procedures set forth the process by which (a) the Debtors are authorized to
`solicit bids and conduct an auction, if necessary, and (b) the Special Committee (as defined below)
`may select, on behalf of the Debtors, the highest or otherwise best proposal (i) for a sale of all or
`substantially all of the Debtors’ assets (the “Sale”, and such transaction, a “Sale Transaction”) or
`(ii) to sponsor a chapter 11 plan of reorganization (as modified, amended, or supplemented from
`time to time, the “Plan”, such transaction, a “Plan Transaction” and, together with the Sale, a
`
`1 The Debtors in these chapter 11 cases (these “Chapter 11 Cases”), and each Debtor’s federal tax identification
`number in their applicable jurisdiction of incorporation, are as follows: Kenbourne Invest S.A. (2018 2206 815);
`NC Telecom II AS (59.208.720-0); WOM Mobile S.A. (99.517.000-0); WOM S.A. (78.921.690-8); Conect S.A.
`(96.965.220-k); and Multikom S.A. (78.456.640-4). The location of the Debtors’ service address in these Chapter
`11 Cases is: General Mackenna No. 1369, Santiago, Chile.
`
`2 Where context requires, capitalized terms used but not otherwise defined herein shall have the meaning ascribed
`to such terms in the Declaration of Robert Wagstaff in Support of Debtors’ Chapter 11 Petitions and Requests
`for First Day Relief [D.I. 3], the Debtors’ Motion for Entry of an Order (I)(A) Approving Bidding Procedures,
`(B) Scheduling Certain Dates with Respect Thereto, (C) Approving the Form and Manner of Notice Thereof (D)
`Authorizing the Designation of a Stalking Horse Bidder, (E) Scheduling a Transaction Hearing, and (F)
`Approving Procedures for the Assumption and Assignment of Executory Contracts and Unexpired Leases and (II)
`Granting Related Relief (filed contemporaneously herewith) (the “Bidding Procedures Motion”), or the Bidding
`Procedures Order, as applicable.
`
`
`RLF1 31206152v.1
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`Case 24-10628-KBO Doc 536-1 Filed 07/16/24 Page 3 of 22
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`“Proposed Transaction”). The Debtors,3 in consultation with the official committee of unsecured
`creditors (the “Committee”)4 and its advisors, will conduct a round of bidding to provide Potential
`Bidders (as defined below) with a full and fair opportunity to present their best proposals for a
`Proposed Transaction. This process is intended to obtain the highest or otherwise most value-
`maximizing restructuring proposal that is in the best interests of the Debtors and their creditors.
`Any Proposed Transaction will be subject to the approval of the Court. A hearing by the Court on
`the approval of a Proposed Transaction is currently scheduled for [•]. If the Proposed
`Transaction is a Plan Transaction, the Debtors will seek approval of such transaction in
`connection with confirmation of the Plan and any deadlines in accordance therewith will be
`determined among the Debtors and the Successful Bidder, in consultation with the Committee,
`and at all times subject to Bankruptcy Rules 2002(b) and 3017.
`
`COPIES OF THE BIDDING PROCEDURES ORDER OR ANY OTHER RELATED
`DOCUMENTS IN THE DEBTORS’ CHAPTER 11 CASES ARE AVAILABLE ON THE
`DEBTORS’
`RESTRUCTURING
`WEBSITE
`AT
`HTTPS://CASES.RA.KROLL.COM/WOM OR UPON REQUEST TO WHITE & CASE
`AT PETER.STROM@WHITECASE.COM.
`
`Key Dates and Deadlines
`
`These Bidding Procedures provide interested parties with the opportunity to submit
`competing bids for a Proposed Transaction. If necessary, the Debtors will conduct an auction (the
`“Auction”) to facilitate the selection by the Special Committee of the highest or otherwise best
`proposal. The key dates and deadlines (the “Deadlines”) for the bidding process are as follows:5
`
`Event
`Debtors to begin distributing initial marketing
`materials to interested parties
`Deadline for bidders to submit non-binding
`Indications of Interest to the Debtors (i.e., the
`IOI Deadline)
`Deadline to (i) designate Stalking Horse
`Bidder and (ii) execute Stalking Horse
`Agreement (if any)
`
`June 24, 2024
`
`Deadline
`
`August 9, 2024 at 4:00 p.m. (ET)
`
`September 20, 2024
`
`
`3 For the avoidance of any doubt, and notwithstanding anything herein to the contrary, (i) the Debtors, and the
`exercise of their business judgment, shall be subject to the oversight of the special committee of the applicable
`board of directors of each Debtor (the “Special Committee”) in connection with any Proposed Transaction and
`these Bidding Procedures and (ii) insiders and affiliates of the Debtors shall be subject, in all respects, to the
`restrictions outlined in “Important Restrictions Regarding Insiders, Affiliates and Committee Members that
`Are Determined To Be Potential Bidders” set forth below.
`
`4 For the avoidance of any doubt, and notwithstanding anything herein to the contrary, the consultation rights of
`the Committee shall be subject, in all respects, to the restrictions outlined in “Important Restrictions Regarding
`Insiders, Affiliates and Committee Members that Are Determined To Be Potential Bidders” set forth below.
`
`5 The proposed Deadlines herein are subject to further review and discussion.
`
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`RLF1 31206152v.1
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`2
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`Case 24-10628-KBO Doc 536-1 Filed 07/16/24 Page 4 of 22
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`Event
`Deadline to file and serve Stalking Horse
`Objections (if any)
`
`Deadline for bidders to submit binding Bids
`(i.e., the Bidding Deadline)
`Debtors to file Assumption and Assignment
`Notice, identifying executory contracts and
`unexpired leases that the Debtors may assume
`and assign and/or transfer in connection with a
`Sale to the Successful Bidder
`Deadline for Debtors to designate Qualified
`Bids and file Auction Notice (if any)
`Deadline to complete Auction (if necessary)
`Deadline to file notice identifying (i) whether
`the Proposed Transaction is a Plan Transaction
`or a Sale Transaction and (ii) the Successful
`Bidder and Back-Up Bidder
`Deadline for Debtors to file form of order
`approving
`the Purchase Agreement and
`proposed Purchase Agreement (if applicable)
`
`Deadline for objections to cure amounts and/or
`the assumption and assignment or transfer of
`executory contracts and unexpired leases that
`the Debtors may assume and assign and/or
`transfer
`Deadline for objections to the Proposed
`Transaction(s), including objections based on
`the manner in which the Auction (if any) was
`conducted, the identity of the Successful
`Bidder and/or the Back-Up Bidder, and the
`approval of any Bid (whether submitted prior
`to, on, or after the Bidding Deadline) (the
`“Transaction Objection Deadline”)
`Proposed Transaction Hearing (if any)
`
`Consummation of a Proposed Transaction (the
`“Target Closing Date”)
`
`Deadline
`Fourteen (14) calendar days after the date the
`Stalking Horse Bidder (if any) is designated at
`4:00 p.m. (ET)
`
`October 18, 2024 at 4:00 p.m. (ET)
`
`twenty-one (21)
`i.e.,
`October 29, 2024,
`calendar days before a hearing to approve the
`Proposed Transaction
`(if
`any)
`(the
`“Transaction Hearing”)
`
`October 25, 2024, i.e., five (5) business days
`after the Bidding Deadline
`November 1, 2024 at 10:30 a.m. (ET)
`Within one (1) business day after conclusion of
`Auction (if any), or as soon as reasonably
`practicable thereafter
`
`November 12, 2024, i.e., seven (7) calendar
`days, or as soon as reasonably practicable,
`before the Transaction Objection Deadline (as
`defined below)
`November 14, 2024 at 4:00 p.m. (ET), i.e., five
`(5) calendar days before the Transaction
`Hearing (if any)
`
`November 14, 2024 at 4:00 p.m. (ET), i.e., five
`(5) calendar days before the Transaction
`Hearing (if any)
`
`November 19, 2024 at 9:30 a.m. (ET) (or such
`other date to be set based on the Court’s
`availability) or contemporaneously with
`confirmation of the Plan, as applicable
`No later than TBD, or such later date if
`necessitated
`by
`applicable
`regulatory
`approvals
`
`
`
`
`RLF1 31206152v.1
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`3
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`Case 24-10628-KBO Doc 536-1 Filed 07/16/24 Page 5 of 22
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`Important Restrictions Regarding Insiders, Affiliates and
`Committee Members that Are Determined To Be Potential Bidders
`
`Notwithstanding anything to the contrary in these Bidding Procedures, the Debtors and the
`Debtors’ Advisors (as defined below) will not consult with or provide copies of any Bids (as
`defined below) or other confidential information to (i) any insider or affiliate of the Debtors or (ii)
`any member of the Committee if such party is reasonably determined by the Special Committee to
`be a Potential Bidder. For the avoidance of any doubt, any insider or affiliate of the Debtors that
`is determined by the Special Committee to be a Potential Bidder shall be required to recuse itself
`from any board discussions or deliberations regarding any Proposed Transaction. If a member of
`the Committee is determined by the Special Committee to be a Potential Bidder, the Special
`Committee shall notify the Committee of such designation within one (1) business day. Thereafter,
`the Committee will maintain its consultation rights, provided that the Committee (i) excludes such
`Committee member from any discussions or deliberations regarding any Proposed Transaction and
`(ii) shall not provide such Committee member any confidential information with respect to any
`Proposed Transaction. For the avoidance of any doubt, to the extent an excluded Committee
`member is no longer considered a Potential Bidder by the Special Committee, then such
`Committee member may fully participate in the Committee’s exercise of its rights hereunder. In
`the event that each member of the Ad Hoc Group6 informs the Debtors and the Committee in
`writing that it no longer intends to participate as a Potential Bidder, the Ad Hoc Group shall from
`that point forward have all the information rights provided herein.
`
`Qualifications to Submit Bids and Participate in Auction
`
`A.
`
`Diligence Materials
`
`To participate in the bidding process and to receive access to due diligence materials (the
`“Diligence Materials”), a party interested in consummating a Proposed Transaction (a “Potential
`Bidder”) must submit (i) an executed confidentiality agreement (a “Confidentiality Agreement”)
`in form and substance satisfactory to the Debtors, (ii) if requested by the Debtors or the Committee,
`a statement and/or other factual support demonstrating to the Debtors’ and the Committee’s
`satisfaction in the exercise of their business judgment that the Potential Bidder has a bona fide
`interest in consummating the Proposed Transaction, and (iii) if requested by the Debtors or the
`Committee, reasonable evidence demonstrating the party’s financial capability to consummate the
`Proposed Transaction contemplated by the Bid submitted by such party, to each of the following
`professionals (collectively, the “Debtors’ Advisors”):
`
`a)
`
`counsel to the Debtors, White & Case LLP, 200 South Biscayne Boulevard, Suite
`4900, Miami,
`FL
`33131,
`Attn:
`John
`K.
`Cunningham
`(jcunningham@whitecase.com), Richard Kebrdle (rkebrdle@whitecase.com), and
`White & Case LLP, 1221 Avenue of the Americas, New York, NY 10020, Attn:
`
`6
`
`
`The “Ad Hoc Group” shall mean the ad hoc group of certain holders of, or investment managers or investment
`advisors to holders of, outstanding 6.875% senior notes due 2024 and 4.7% senior notes due 2028 issued by
`Kenbourne Invest S.A., as set forth in the Third Verified Statement of the Ad Hoc Group of WOM Noteholders
`Pursuant to Bankruptcy Rule 2019 [D.I. 410].
`
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`RLF1 31206152v.1
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`4
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`Case 24-10628-KBO Doc 536-1 Filed 07/16/24 Page 6 of 22
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`(philip.abelson@whitecase.com)
`Philip Abelson
`(andrea.amulic@whitecase.com);
`
`and Andrea Amulic
`
`co-counsel to the Debtors, Richards, Layton & Finger, P.A., One Rodney Square,
`920 North King Street, Wilmington, DE 19801, Attn: John H. Knight
`(knight@rlf.com), Amanda R. Steele (steele@rlfcom), and Brendan J. Schlauch
`(schlauch@rlf.com);
`
`investment banker to the Debtors, Rothschild & Co US Inc. (“Rothschild & Co”),
`1251 Avenue of the Americas, New York, NY 10020, Attn: Marcelo Messer
`(marcelo.messer@rothschildandco.com); and
`
`financial advisor to the Debtors, Riveron RTS, LLC, 600 Brickell Avenue, Suite
`2550, Miami, FL 33131, Attn: Robert Wagstaff (Robert.Wagstaff@riveron.com).
`
`b)
`
`c)
`
`d)
`
`No party will be permitted to conduct any due diligence without entering into an
`acceptable Confidentiality Agreement. Each Potential Bidder may submit an Indication of Interest
`(as defined below) after delivering an executed Confidentiality Agreement to the Debtors’
`Advisors in accordance with the foregoing paragraph. Except as otherwise determined in the
`Debtors’ business judgment, after consultation with the Committee, only those Potential Bidders
`that have delivered executed Confidentiality Agreements (each, an “Acceptable Bidder”) may
`submit Indications of Interest. The Debtors shall consult with the Committee prior to deeming any
`Potential Bidder an Acceptable Bidder.
`
`Each member of the Ad Hoc Group that executes a Confidentiality Agreement subject to a
`disclosure requirement shall be deemed an Acceptable Bidder. The Debtors shall provide each
`member of the Ad Hoc Group who wishes to participate in the marketing process and is an
`Acceptable Bidder a summarized version of the due diligence materials, consistent with customary
`market practice regarding the level of detail provided in such summary materials.
`
`The Debtors will afford Acceptable Bidders the time and opportunity to conduct due
`diligence, as determined by the Debtors, in consultation with the Committee, in their reasonable
`discretion and within the Deadlines; provided, however, that the Debtors shall not be obligated to
`furnish any due diligence information after the Bidding Deadline (as defined below). The Debtors
`will post substantially all written due diligence provided to an Acceptable Bidder to an electronic
`data room (the “Data Room”). The Debtors may restrict or limit access of an Acceptable Bidder
`to the Data Room if they determine, based on their business judgment, that certain information in
`the Data Room is sensitive, proprietary, or otherwise not appropriate for disclosure to such
`Acceptable Bidder. None of the Debtors, any of their representatives, or the Debtors’ Advisors
`shall be obligated to furnish information of any kind whatsoever to any person that is not
`determined to be an Acceptable Bidder. The Debtors will act in good faith to afford the Ad Hoc
`Group’s professionals that are subject to Confidentiality Agreements the time and opportunity to
`conduct due diligence as set forth herein, including giving such professionals access to the same
`due diligence materials provided to Acceptable Bidders
`
`Prior to the IOI Deadline (as defined below), the Diligence Materials shall consist of a
`confidential information memorandum and limited additional non-public information regarding
`
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`RLF1 31206152v.1
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`Case 24-10628-KBO Doc 536-1 Filed 07/16/24 Page 7 of 22
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`the Debtors which shall be made available in the Data Room. Following the IOI Deadline and prior
`to the Bidding Deadline, the Diligence Materials shall consist of substantially more extensive non-
`public information regarding the Debtors which shall be made available in the Data Room, as well
`as the opportunity to meet with the Debtors’ management and conduct Q&A. The Debtors shall
`not be obligated to furnish any due diligence information after the Bidding Deadline.
`
`For the avoidance of any doubt, (a) the Debtors shall have no obligation to provide
`information to any Acceptable Bidder who, in the Debtors’ business judgment, has not established,
`or who has raised doubt, that such Acceptable Bidder intends in good faith, or has the capacity, to
`consummate the Proposed Transaction and (b) with respect to any Acceptable Bidder for which
`the Debtors determine, in their business judgment, that providing any diligence materials would
`be detrimental to the Debtors, the Debtors may withhold or modify any diligence materials that
`the Debtors, in their sole discretion, determine are business-sensitive or otherwise inappropriate
`for disclosure to such Acceptable Bidder.
`
`All substantive direct communications, including due diligence requests, must be directed
`to Rothschild & Co at the following email address: ProjectCondor@rothschildandco.com.
`
`Notwithstanding anything to the contrary herein, the Debtors shall provide the
`Committee’s advisors with reasonable access to the Data Room on a Professionals’ Eyes Only
`basis.
`
`B.
`
`Due Diligence from Acceptable Bidders
`
`Each Acceptable Bidder shall comply with all reasonable requests with respect to
`information and due diligence access by the Debtors or their advisors regarding such Acceptable
`Bidder and the transaction contemplated by such Acceptable Bidder’s Bid. Failure by an
`Acceptable Bidder to comply with requests for additional information and due diligence access
`will be a basis for the Debtors to determine that the Acceptable Bidder is not a Qualified Bidder
`(as defined below). Failure by a Qualified Bidder to comply with such requests for additional
`information and due diligence access will be a basis for the Debtors, after consultation with the
`Committee, to determine that a bid made by a Qualified Bidder is not a Qualified Bid (as defined
`below).
`
`C.
`
`Submission of Preliminary Indications of Interest
`
`In order to be eligible to submit a Bid, an Acceptable Bidder will first be required to submit
`a non-binding indication of interest (an “Indication of Interest”) no later than 4:00 p.m.
`(prevailing Eastern Time) on August 9, 2024 (the “IOI Deadline”) to the Debtors and the
`Debtors’ Advisors specified herein; provided, that, after consultation with the Committee, the
`Debtors may extend the IOI Deadline or waive the requirement of an Indication of Interest for one
`or more Acceptable Bidders upon request, without further order of the Court. If the Debtors extend
`the IOI Deadline, the Debtors will promptly notify all Acceptable Bidders and the Ad Hoc Group
`and file a notice of such extension on the Court’s docket. The Debtors, in consultation with the
`Committee, will notify each Acceptable Bidder whether its Indication of Interest satisfies the
`requirements set forth in this section and such bidder is qualified to submit a Bid that reflects such
`Indication of Interest.
`
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`RLF1 31206152v.1
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`Case 24-10628-KBO Doc 536-1 Filed 07/16/24 Page 8 of 22
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`Each Indication of Interest must include, except as the Debtors, in consultation with the
`Committee, otherwise determine:
`
`a)
`
`b)
`
`c)
`
`d)
`
`e)
`
`f)
`
`g)
`
`to the extent not already executed, an executed confidentiality agreement in form
`and substance reasonably satisfactory to the Debtors;
`
`a letter outlining the Acceptable Bidder’s offer (including whether such offer is for
`substantially all of the Debtors’ assets and operations or a subset of its assets and
`operations, such as its fiber assets and operations), form(s) of consideration, and
`any conditions precedent (other than the sufficiency of financing) and stating that
`the Acceptable Bidder is prepared to work in good faith to finalize a binding
`proposal by the Bidding Deadline;
`
`written evidence acceptable to the Debtors demonstrating financial wherewithal
`and a description of any corporate or governmental authorizations necessary to
`consummate the Proposed Transaction;
`
`the identification of the ultimate beneficial owners of the Acceptable Bidder;
`
`a description of all remaining due diligence requirements and any material
`conditions to be satisfied prior to submission of a Bid;
`
`the identification of any person or entity who may provide debt or equity financing
`for the Proposed Transaction and any material conditions to be satisfied in
`connection with such financing; and
`
`confirmation that the Acceptable Bidder consents to the jurisdiction of the Court
`and agrees to be bound by the Bidding Procedures.
`
`The Debtors shall promptly, but in no event later than within one (1) calendar day of receipt
`thereof, provide copies the Indications of Interest and Bids received (excluding underlying
`financial or qualifying documentation) to the legal and financial advisors to the Committee, Brett
`H. Miller (bmiller@willkie.com), Todd M. Goren (tgoren@willkie.com), and Leon Szlezinger
`(lszlezinger@jefferies.com); provided that, during any period in which any member of the
`Committee has submitted Indications of Interest and/or Bids, such member of the Committee shall
`not be consulted in connection with these Bidding Procedures.
`
`The Debtors reserve the right, in their business judgment, and upon consultation with the
`Committee, to disqualify any Potential Bidders and/or Acceptable Bidders that have had
`communications between and amongst themselves without the prior consent of the Debtors’
`Advisors; provided that, the Ad Hoc Group or any Bid submitted by the Ad Hoc Group shall not
`be disqualified due to the Ad Hoc Group’s participation in any Joint Bid Discussions (as defined
`in the settlement term sheet attached as Exhibit 1 to Docket No. 449 (the “Settlement
`Agreement”)) in accordance with the terms of the Settlement Agreement. For the avoidance of
`any doubt, there will be no prohibition on pairing bids; provided that, to the extent any Potential
`Bidders and/or Acceptable Bidders are interested, the Debtors’ Advisors, in consultation with the
`Committee, may facilitate the communications between parties and the potential joining of bids.
`
`
`RLF1 31206152v.1
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`Case 24-10628-KBO Doc 536-1 Filed 07/16/24 Page 9 of 22
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`D.
`
`Bidding Deadline and Auction Qualification Process
`
`An Acceptable Bidder that desires to make an irrevocable and binding offer (each, a “Bid”)
`shall transmit such irrevocable and binding offer via email (in .pdf or similar format) so as to be
`actually received on or before October 18, 2024, at 4:00 p.m. (prevailing Eastern Time) (the
`“Bidding Deadline”) to each of the Debtors’ Advisors at the addresses set forth in subsection A
`of this Section. The Debtors shall promptly, but in no event later than within one (1) calendar day
`of the expiration of the Bidding Deadline, send the Committee all Bids received.
`
`E.
`
`Bid Requirements
`
`Each Bid by an Acceptable Bidder must be submitted in writing and satisfy the following
`requirements (collectively, the “Bid Requirements”) as determined by the Debtors in consultation
`with the Committee:
`
`•
`
`•
`
`Form of Bid. Each Bid must clearly identify whether it is for a Sale Transaction or
`a Plan Transaction.
`
`Purchase Price. Each Bid must clearly set forth the cash purchase price (the “Cash
`Consideration”) and identify any non-cash consideration included in such Bid
`(together with the Cash Consideration, the “Purchase Price”). The Purchase Price
`associated with each Bid may include only cash and/or other consideration
`acceptable to the Debtors after consultation with the Committee. The Special
`Committee will, in evaluating such consideration, consider the form(s) of
`consideration, the marketability of such consideration and the present value of such
`consideration at market rates under prevailing market conditions. If a Stalking
`Horse Bidder (as defined below) has been selected, the cash component of any other
`Qualified Bid must provide for consideration on the effective date of the Plan (the
`“Effective Date”) or the closing of the Sale that is equal to or in excess of the sum
`of: (i) the Stalking Horse Bid (as defined below); (ii) the Bid Protections (as defined
`below) approved by the Court; and (iii) the Minimum Increment (as defined below).
`Each Bid must also clearly set forth which of the Debtors’ assets the Acceptable
`Bidder is seeking to acquire. Each Bid must also clearly set forth which executory
`contracts and unexpired leases the Acceptable Bidder expects the Debtors to
`assume and assign to the Acceptable Bidder (the “Transferred Contracts”) and
`which liabilities, if any, of the Debtors the Acceptable Bidder is agreeing to assume
`(the “Assumed Liabilities”).
`
`• Good-Faith Deposit. Each Bid must be accompanied by a cash deposit (the
`“Good Faith Deposit”) in the form of a wire transfer, certified check, or cash
`payable to the order of counsel pursuant to instructions to be provided by the
`Debtors equal to 10% of the Acceptable Bidder’s proposed Purchase Price, which
`will be held in a non-interest bearing escrow or trust account determined by the
`Debtors in consultation with the Committee Notwithstanding the foregoing, the
`Special Committee may determine, in its sole discretion, to accept a Good Faith
`Deposit in an alternative form of consideration.
`
`
`RLF1 31206152v.1
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`Case 24-10628-KBO Doc 536-1 Filed 07/16/24 Page 10 of 22
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`• Transaction Documents. Each Bid must be accompanied by executed transaction
`documents, including a purchase agreement (a “Purchase Agreement”) or plan
`sponsor agreement (a “Plan Sponsor Agreement” and, each of the Purchase
`Agreement and the Plan Sponsor Agreement, a “Transaction Document”), as
`applicable, the form of which will be provided to any Acceptable Bidder by the
`Debtors prior to the Bidding Deadline, including the exhibits, schedules, and
`ancillary agreements related thereto, and any other related material documents
`integral to such Bid pursuant to which the Acceptable Bidder proposes to
`effectuate the proposed transaction, along with copies that are marked to reflect
`any amendments and modifications to the form Purchase Agreement or Plan
`Sponsor Agreement, as applicable, provided to such Acceptable Bidder, which
`amendments and modifications shall only be reasonably necessary to effectuate
`the applicable Proposed Transaction and must be consistent with the Bidding
`Procedures. The terms and conditions of the Transaction Documents must be, in
`the aggregate, not materially more burdensome or adverse to the Debtors than the
`provisions contained in any Stalking Horse Agreement (as defined below). The
`Transaction Documents must include a commitment to close by no later than the
`Target Closing Date.
`
`• Proof of Financial Ability to Perform. A Bid must include written evidence that
`the Acceptable Bidder has the necessary financial ability to close the Proposed
`Transaction by no later than the Target Closing Date. Such information must
`include, among other things, the following:
`
`a)
`
`b)
`
`c)
`
`d)
`
`contact names and telephone numbers for verification of financing sources;
`
`evidence of the Acceptable Bidder’s requisite financial capacity to
`consummate the transaction contemplated by its Bid, and/or equity
`commitments and, if applicable, proof of unconditional fully executed and
`effective debt funding commitments from one or more reputable sources in
`an aggregate amount equal to the cash portion of such Bid (including the
`Acceptable Bidder’s payment of cure amounts), or the posting of an
`irrevocable letter of credit from a recognized banking institution issued in
`favor of the Debtors in such amount, in each case, as are needed to close the
`transaction;
`
`a description of the Acceptable Bidder’s pro forma capital structure; and
`
`any such other form of financial disclosure or credit-quality support
`information or enhancement reasonably requested by the Debtors
`demonstrating that such Acceptable Bidder has the ability to close the
`Proposed Transaction by no later than [•].
`
`• Adequate Assurance of Future Performance. Each Bid must demonstrate, in the
`Debtors’ business judgment and after consultation with the Committee, that the
`Acceptable Bidder can provide adequate assurance of future performance to the
`
`
`RLF1 31206152v.1
`
`9
`
`
`
`Case 24-10628-KBO Doc 536-1 Filed 07/16/24 Page 11 of 22
`
`applicable counterparty under all Transferred Contracts as required by section 365
`of the Bankruptcy Code.
`
`• No Contingencies; No Financing or Diligence Outs. A Bid shall not be
`conditioned on (a) the obtaining or the sufficiency of financing, (b) the obtaining
`of any board of directors or board of managers, equity holder, investment
`committee, or other similar internal approval, or (c) the outcome or review of due
`diligence. A Bid must identify with particularity each and every condition to the
`consummation of the transaction, including the executory contracts and unexpired
`leases for which assumption and assignment is required.
`
`• Disclosure of Identity of Bidder. Each Bid must fully disclose the identity of each
`entity and each entity’s shareholders, partners, investors, and ultimate controlling
`entities that (a) owns and/or controls or will directly or indirectly own and/or
`control five percent or more (individually or collectively) of the equity and/or
`voting securities of the Acceptable Bidder, including its full legal name,
`jurisdiction of incorporation or formation, and its location in the Acceptable
`Bidder’s corporate structure, that will be participating in connection with such Bid,
`(b) owns and/or controls or will directly or indirectly own and/or control any
`amount of equity and/or voting securities of the Acceptable Bidder, (c) for trusts
`and similar legal arrangements that meet the criteria for subparts (a) and (b) above,
`(w) each trust’s settlor (the provider of funds), (x) each trustee or person or entity
`exercising control over each trust, (y) any person with the power to remove any
`trustee and (z) the beneficiaries of such trust(s) or similar legal arrangement, and
`(d) has a connection or agreement with any Debtor or with any other prospective
`bidder or any officer, director, financial creditor, or equity security holder of any
`Debtor. Each Bid should also include contact information for the specific person(s)
`and counsel whom the Debtors (and their advisors) should contact regarding such
`Bid. Each Bid should contain sufficient evidence that the Acceptable Bidder is
`legally empowered, by power of attorney or otherwise, to complete the transaction
`on the terms contemplated by the parties. Each Bid should also fully disclose any
`connections or agreements with any of the Debtors, any known, potential or
`prospective bidder, any Acceptable Bidder or any officer, director, manager, or
`significant creditor, of any Debtor.
`
`• Joint Bids. The Debtors, in consultation with the Committee, will be authorized
`to approve joint Bids in their sole discretion on a case-by-case basis.
`
`• Regulatory and Third-Party Approvals. A Bid must set forth each regulatory
`and third-party approval required for the Acceptable Bidder to consummate the
`transaction, if any, the time period within which the Acceptable Bidder expects to
`receive such regulatory and third-party approvals, and those actions the Acceptable
`Bidder will take to ensure receipt of such approval(s) as promptly as possible.
`
`• Corporate Authority. The Bid must include written evidence reasonably
`acceptable to the Debtors demonstrating appropriate corporate authorization to
`consummate the Bid; provided that, if the Acceptable Bidder is an entity specially
`10
`
`
`RLF1 31206152v.1
`
`
`
`Case 24-10628-KBO Doc 536-1 Filed 07/16/24 Page 12 of 22
`
`formed for the purpose of effectuating the Bid, then the Acceptable Bidder must
`furnish written evidence reasonably acceptable to the Debtors of the approval of
`the Bid by the equity holder(s) of such Acceptable Bidder.
`
`• Contact Information and Affiliat

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