BRD Land & Investment Bankruptcy Sale Updates and Notices Page

1. The Debtor seeks the entry of an Order authorizing and approving the following procedures for the assumption and assignment of the LPAs (the “Procedures”):

1. Stalking Horse Bid. The Proposed Assignee shall be the Stalking Horse Bidder while the Proposed Purchase Price shall be a Stalking Horse Bid. The Stalking Horse Bid shall be considered a Qualified Bid without regard to any of the requirements or conditions set forth herein and without any other or further action by the Stalking Horse Bidder. The Stalking Horse Bidder may participate in any Auction as defined below. 

2. Bid Procedures. No later than on the fourteenth (14th) day following the filing of the Assumption Notice (the “Bid Deadline”), parties, if any, interested in overbidding on the Transaction in an amount greater than the Proposed Purchase Price (a “Bidder”) must (a) notify in writing by email or letter: the Debtor’s counsel, Matthew Tomsic, [email protected]; the Debtor’s Chief Restructuring Officer, Andy Barbee, [email protected]; and the Debtor’s brokers, Will Lilly, [email protected], and Rob Tramantano, [email protected] of their interest (an “Interest Notice”); (b) must execute non-disclosure agreement in form and substance satisfactory to the Debtor unless the Bidder has previously executed a non-disclosure agreement; and (c) submit a Qualified Bid, which must contain signed, definitive irrevocable offer to consummate the Transaction with the following requirements: (i) provide the cash purchase price; (ii) will not be subject to any (a) financing contingency, (b) contingency related to the completion of unperformed due diligence, or (c) contingency related to the approval of the bidder’s board of directors or other internal approvals or consents; (iii) provide that the bidder’s offer is irrevocable until the closing of the Transaction if such bidder submits the Prevailing Bid (as defined below); (iv) provide that the bidder shall forfeit its Deposit (as defined below) in the event that it submits the Prevailing Bid and fails to close the purchase in accordance withs such bid; and (v) provides that it will close Transaction on or before the fifteenth (15^th) day following the date that an order authorizing the Transaction is entered by the Bankruptcy Court and becomes a final, non-appealable order.[1] A Qualified Bid must also include (vi) a cashier’s check in an amount equal to five percent (5%) of the purchase price set forth in the Qualified Bid or $25,000, whichever is greater and which shall become the deposit if the Bidder submits the Prevailing Bid or the Backup Bid (the “Deposit”); and (vii) be accompanied by evidence satisfactory to the Debtor in its reasonable discretion that the bidder is willing, authorized, capable of and qualified financially, legally and otherwise to unconditionally perform all obligations contemplated herein. In the event the Bid Deadline falls on a weekend or a holiday, then it shall be moved to first business day on the calendar.

3. Auction Procedures. The Debtor shall schedule an auction or final bid event (the “Auction”) within twenty-one (21) days following the Bid Deadline, or if that date falls on a weekend, the first business day on the calendar. The Auction shall be conducted by the Debtor’s brokers in a format of the brokers’ choosing. Brokers shall notify the Stalking Horse and each party that submitted a Qualified Bid of the format of the Auction, in addition to the highest Qualified Bid received, in advance of the Auction. The Auction will continue in the manner determined by the brokers provided, however, additional bids must be Qualified Bids and must be made in higher increments of at least $25,000 (the “Minimum Bid Increment”). The Debtors and Brokers may, at their discretion, adjust the Minimum Bid Requirement during the Auction.

4. Selection of the Prevailing and Backup Bids. At the conclusion of the Auction, the Debtor shall: (a) announce the highest and best Qualified Bid (the “Prevailing Bid”) and the next highest or otherwise best Qualified Bid (the “Backup Bid”); and (b) file a notice with the Bankruptcy Court identifying the Prevailing Bid and the Backup Bid; and (c) file a notice with the Bankruptcy Court upon closing and thereafter provide an order to the Bankruptcy Court for entry authorizing the assumption and assignment. Should any bidder submit the Prevailing Bid or the Backup Bid in an amount greater than its first Qualified Bid, then such bidder shall provide to Debtor’s counsel the supplemental Deposit required by the Prevailing Bid or Backup Bid within one (1) business day.

5. Form Assignment Agreement. In connection with the Auction Procedures, the Debtor has prepared a form of asset purchase agreement (the “Form Assignment Agreement”), which is attached hereto as Exhibit B.

[1] In addition to the requirements, the Debtor may determine in its sole discretion that any bid is a Qualified Bid.