CRUMMY, DEL DEO, DOLAN,
GRIFFINGER & VECCHIONE
A Professional Corporation
One Riverfront Plaza
Newark, New Jersey 07102-5497
(201) 596-4500
Attorneys for Debtors and
Debtors-in-Possession
PD-9779
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF NEW JERSEY
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:
In re: :
:
ALLERION, INC., a corporation :
of the State of New Jersey, : Jointly Administered Under
: Case No. 94-28396 (WFT)
Debtor. :
: Chapter 11
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:
In re: :
: Hearing Date: February 17, 1995
ULTIMATE DATA SYSTEMS, INC., a : at 10:00 a.m.
corporation of the State of :
Connecticut, :
:
Debtor. :
:
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ORDER (i) APPROVING BIDDING PROCEDURES, (ii) SETTING
HEARING TO APPROVE SALE OF ASSETS AND ASSUMPTION
ASSIGNMENT OF UNEXPIRED LEASES AND EXECUTORY CONTRACTS
AND ESTABLISHMENT OF CURE AMOUNTS AND ADEQUATE
ASSURANCE TERMS, AND (iii) SETTING DATES FOR FILING OF
BIDS AND OBJECTIONS
THIS MATTER having been opened to the Court upon the motion on shortened
notice of Allerion, Inc., debtor and debtor-in-possession ("Allerion" or
"Debtor"), by its attorneys, Crummy, Del Deo, Dolan, Griffinger & Vecchione, a
Professional Corporation, for an order (i) approving bidding procedures with
respect to the sale of certain of Allerion's
assets, including receivables, inventory, certain contract rights, equipment,
goodwill and other non-cash assets of Allerion's Network Services Division (the
"Acquired Assets"), but excluding certain books and records, causes of action,
cash and equivalents (the "Excluded Assets"), (ii) fixing a hearing to approve
the assumption and assignment of certain of Allerion's unexpired leases and
executory contracts and the establishment of cure amounts and adequate assurance
terms in connection therewith, and the assumption of deferred revenue, and (iii)
setting a hearing date for approval of the sale of the Assets, free and clear of
liens, and for other relief; and the Court having considered the Debtor's
application in support of the motion and any opposition thereto; and the Court
having further considered the arguments of counsel at the hearing on the motion;
and for good cause shown,
IT IS on this 17th day of February, 1995;
ORDERED that:
1. A hearing shall be held before the Honorable William F. Tuohey,
Courtroom 3B, U.S. Bankruptcy Court, 50 Walnut Street, Newark, New Jersey on
March 10, 1995 at 10:00 a.m. to consider (a) approval of the sale of the
Acquired Assets free and clear of liens, claims and encumbrances, with valid
liens to attach to the proceeds, for the highest and best offer for the Acquired
Assets which may be presented in accordance with the terms of this Order; (b)
assumption by Allerion and assignment to the successful purchaser of
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unexpired leases ("Assumed Leases") and executory contracts ("Assumed
Contracts") on the terms provided for in the highest and best offer; (c)
determination of Cure Amounts and other rights of non-debtor parties to the
Assumed Leases and Assumed Contracts affected by the motion; and (d) for such
other and further relief as the Court deems just.
2. The Debtor shall give notice of the proposed sale of Acquired Assets in
the following manner, which shall constitute adequate notice of the sale:
A. By service of this Order on the United States Trustee, counsel for
the official creditors' committees, the twenty largest unsecured creditors
of both Debtor, all secured creditors, all non debtor parties to leases and
executory contracts affected by the Motion, and any other party on the
service list, and any known prospective purchaser, by overnight mail by
February 21, 1995; and
B. By publication of this Order once in the Wall Street Journal,
Eastern Edition and the Newark Star-Ledger, by February 22, 1995.
3. In order for an offer for the Acquired Assets to be qualified to be
considered at the hearing ("Qualified Bid"), it must satisfy all of the
following conditions:
A. It must be in writing, signed by the offeror, be in substantially
the form of the Asset Purchase Agreement attached to the Application as
Exhibit B, accompanied by a deposit of $100,000 in immediately available
funds (either by wire transfer or certified or official bank check) made
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payable to Debtor's counsel's attorney trust account, and must be received by
counsel for the Debtor, with copies to counsel for the Unsecured Creditors'
Committees of both Debtors, no later than 4:00 p.m. New York time March 7, 1995;
B. It must offer to purchase the Assets through March 15, 1995, on
terms and conditions no less favorable to the Debtor, as determined solely
by the Debtor, than those set forth in this Order and in the form of Asset
Purchase Agreement;
C. It must be subject to no unsatisfied conditions for performance
other than those set forth in the Asset Purchase Agreement;
D. The purchase price must be payable in full in cash at closing;
E. Closing must occur no later than March 13, 1995;
F. With respect to any leases or executory contracts to be assigned,
in addition to the purchase price for the Assets, the purchaser must agree
to pay in cash at closing all Cure Amounts, as determined by the Court, due
to be paid to any nondebtor party to any Assumed Lease or Assumed Contract
as a condition of assignment of such lease or executory contract to the
purchaser, and must assume deferred revenue as of closing; and
G. The Acquired Assets shall be sold "as is" and "where is", with no
representations or warranties as to use or fitness.
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4. Any objections to the sale of Assets must be filed with the Court and
served so as to be received by counsel for the Debtor, Crummy, Del Deo, Dolan,
Griffinger & Vecchione, One Riverfront Plaza, Newark, New Jersey 07102,
attention: Paul R. DeFilippo, Esq., fax number 201-596-0545; the official
creditors' committees, Ravin, Sarasohn, Cook, Baumgarten, Fisch & Baime, 103
Eisenhower Parkway, Roseland, New Jersey 07068, attention: Kenneth A. Rosen,
Esq., fax number 201-228-9250, Anderson, Kill, Olick, & Oshinsky, 1251 Avenue of
the Americas, New York, New York 10020, attention: Eric Sleeper, Esq., fax
number 212-278-1733; and purported secured creditors, Winick & Rich, 919 Third
Avenue, New York, New York 10022, attention: Jonathan Flaxer, Esq., fax number
212-308-5945; Carpenter, Bennett & Morrissey, Three Gateway Center, 100 Mulberry
Street, Newark, New Jersey 07102, attention: Michael Waters, Esq., fax number
201-622-5314; Lane & Mittendorf, 99 Park Avenue, New York, New York 10016,
attention: Louis Lagalante, Esq., fax number 212-972-5647, no later than 4:00
p.m. March 8, 1995. The Debtor will advise all of the foregoing parties, and
each Qualified Bidder, on March 9, 1995, as to the amount of the highest
Qualified Bid received.
5. Any prospective purchaser may obtain information concerning the Debtor
necessary to make a Qualified Bid by contacting Jay Sturm, General Counsel,
Allerion, Inc., 717 Ridgedale Avenue, East Hanover, New Jersey 09936, telephone
201-887-1000, fax 201-887-9279.
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HONORABLE WILLIAM F. TUOHEY
UNITED STATES BANKRUPTCY JUDGE
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