CRUMMY, DEL DEO, DOLAN,
GRIFFINGER & VECCHIONE
A Professional Corporation
One Riverfront Plaza
Newark, New Jersey 07102-5497
(201) 596-4500
Attorneys for Debtor and
Debtor-in-Possession
PD-9779
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW JERSEY
: Jointly Administered Under
In re: : Case No.: 94-28396
:
ALLERION INC., a corporation : Chapter 11
of the State of New Jersey, :
:
Debtor. :
:
:
:
:
In re: :
:
ULTIMATE DATA SYSTEMS, INC., a :
corporation of the State :
of Connecticut, :
: HEARING DATE: March 10, 1995
Debtor. :
:
:
ORDER (1) APPROVING ASSET PURCHASE AGREEMENT BY AND BETWEEN ALLERION,
INC. AND COMPUCOM SYSTEMS, INC. (2) AUTHORIZING, PURSUANT TO SECTION
363 OF THE BANKRUPTCY CODE, THE SALE OF THE DEBTOR'S ASSETS, AND (3)
AUTHORIZING, PURSUANT TO SECTION 365 OF THE BANKRUPTCY CODE, THE
ASSUMPTION AND ASSIGNMENT BY THE DEBTOR OF CERTAIN UNEXPIRED LEASES
AND EXECUTORY CONTRACTS, AND (4) FIXING CURE AMOUNTS ON EXECUTORY
CONTRACTS
This matter coming on to be heard on the motion of Allerion Inc.
("Allerion"), debtor and debtor-in-possession
herein ("Debtor"), pursuant to 11 U.S.C. ss. 363 for authority to sell assets
free and clear of liens and for other relief (the "Motion") and upon the Court's
order, as amended, dated February 21, 1995 (the "Scheduling Order") fixing the
date, time and place of the hearing on the Motion (the "Hearing") and approving
the form and manner of notice thereof; due notice of the Hearing having been
given in accordance with the Scheduling Order, as evidenced by certificates of
service filed with the Clerk of this Court; the Court having reviewed the Motion
and its attachments, including without limitation, proposed forms of certain
agreements to be entered into with CompuCom Systems, Inc., including the "Asset
Purchase Agreement" introduced as an exhibit at the hearing; the Court having
heard testimony and the statements of counsel for and/or the statements of
various parties in interest, and having received other evidence, all with
respect to the Motion; the Court having considered any and all other responses
and objections to the Motion and having overruled the same; and the Court having
concluded based upon the record of the Hearing that the Motion should be
granted;
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS:
1. This Court has jurisdiction over this proceeding under 28 U.S.C. ss.ss.
1334 and 157(a). The Motion is a core proceeding under 28 U.S.C. ss. 157(b).
2. Due and proper notice of the Motion has been given to all parties who
are entitled to notice under the circumstances.
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3. Except as provided herein, all objections to the Motion and the entry of
this Order are overruled. The Motion is granted and approved, and the
transactions contemplated by the Asset Purchase Agreement are hereby authorized
and approved.
4. The purchase of the Acquired Assets (as defined in the Asset Purchase
Agreement) by CompuCom Systems, Inc. or its assignees or designees (separately
and collectively the "Buyer") and the sale thereof by Allerion, pursuant to this
Order and the Asset Purchase Agreement (substantially in the form entered into
evidence at the Hearing), is in good faith and is approved in all respects. The
Debtor and the Buyer have complied in all respects with the bidding procedure
set by the Court, and the sale of the Acquired Assets to the Buyer is fair and
reasonable, the purchase price is adequate in all respects, and the sale is in
the best interests of the estate. A valid business purpose exists for
authorizing sale of the Acquired Assets and assumption and assignment of the
Assumed Contracts and Assumed Leases (as defined).
5. Pursuant to sections 363(b) and (f) of the Bankruptcy Code, the Debtor
is authorized and directed to enter into the Asset Purchase Agreement, comply
with all of its obligations and consummate the transactions contemplated under
the Asset Purchase Agreement under the terms and conditions of the Asset
Purchase Agreement and transfer and convey the Acquired Assets to the Buyer at
Closing free and clear of all liens, encumbrances, claims (as "claim" is defined
in Section
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101(5) of the Bankruptcy Code), security interests, of whatever kind or
nature, mortgages, pledges, restrictions, charges, instruments, licenses,
encroachments, options, rights of recovery, judgments, orders and decrees of any
court or foreign or domestic governmental entity, interest, products, tax
(including foreign, state and local taxes), in each case of any kind or nature,
whether secured or unsecured, choate or inchoate, filed or unfiled, scheduled or
unscheduled, noticed or unnoticed, recorded or unrecorded, contingent or
non-contingent, material or non-material, known or unknown and including all
claims based on any theory that Buyer is a successor, transferee or continuation
of the Debtor or either of them (collectively "Liens" and each a "Lien"),
whether arising prior to or subsequent to the date of the filing of the Chapter
11 petition of the Debtor except for Assumed Obligations (as defined in the
Asset Purchase Agreement).
6. Any Liens that encumber or purport to encumber the Acquired Assets shall
be transferred to and attach to the proceeds of the sale under the Asset
Purchase Agreement to the same extent and with the same force, validity, status
and effect, if any, as they had against the Acquired Assets and subject to the
further order of the Court. Except as otherwise provided in the Asset Purchase
Agreement, all rights of either of the Debtor and their estates or any party in
interest to seek avoidance of or challenge the validity, force, status, extent,
and effect of Liens are hereby expressly reserved. All
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net proceeds of sale of the Acquired Assets shall be placed in escrow pending
further Orders of the Court, provided, however, Allerion may use such proceeds
to pay accrued payroll and unpaid operating expenses as of the Closing Date
which are not assumed or paid by the Buyer.
7. In the event that any Person or Entity (as those terms are defined in
the Bankruptcy Code) which has filed statements or other documents or agreements
evidencing Liens on or interests in the Acquired Assets (other than those
securing Assumed Obligations) has not delivered to the Debtor prior to the
Closing, in proper form for filing and executed by the appropriate parties,
termination statements, instruments of satisfaction, release of liens and
easements, and other documents for the purpose of documenting the release of all
Liens, or other interests which such person or entity has with respect to the
Acquired Assets, each of the Buyer and the Debtor are authorized and directed to
execute and file such statements, instruments, releases, and other documents on
behalf of the person or entity with respect to the Acquired Assets. Each such
person or entity is hereby barred from asserting any claims on such Liens or
other interests against the Buyer, its successors and assigns.
8. Upon the Closing, the Buyer shall not be deemed to (i) be the successor
of the Debtor, (ii) have, de facto or otherwise, merged with or into the Debtor,
or (iii) be a mere continuation or substantial continuation of the Debtor or the
enterprise of the Debtor.
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9. Except to the extent otherwise expressly provided in the Asset Purchase
Agreement and this Order, at the Closing, the Buyer shall not assume, nor shall
the Buyer be deemed to have assumed, any liability or obligation of the Debtor
of any kind, character or description whether known or unknown, absolute or
contingent, accrued or unaccrued, liquidated or unliquidated, secured or
unsecured, joint or several, due or to become due, vested or unvested,
executory, determined, determinable or otherwise and whether or not the same is
required to be accrued on the financial statements of the holder of the
liability or obligation.
10. After the Closing, this Court shall be divested of jurisdiction of the
Acquired Assets purchased by the Buyer, except, however, the Court shall retain
jurisdiction to resolve any disputes which may arise in connection with the
Asset Purchase Agreement or this Order, and to enforce the terms of the Asset
Purchase Agreement and this Order.
11. The Debtor is authorized and directed to execute, acknowledge, and
deliver such corporate name change certificates, deeds, assignments, conveyances
and other assurances, documents, and instruments of transfer and take such other
action that may be reasonably necessary to perform the terms and provisions of
the Asset Purchase Agreement and related agreements, and shall take any other
action that may reasonably be requested by the Buyer for purposes of assigning,
transferring, granting, conveying, and confirming to the Buyer,
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or reducing to possession, any or all of the Acquired Assets and to execute such
nonmaterial amendments to the Asset Purchase Agreement as may be required to
effectuate the letter and intent of such agreements and the consummation of the
transactions authorized by this Order, all without further Order of the Court.
12. Allerion is hereby authorized and directed to assume the unexpired
leases or executory contracts identified in the Asset Purchase Agreement (the
"Assumed Leases" and "Assumed Contracts"), to pay to the other party to such
Assumed Leases or Assumed Contracts at Closing the amounts set forth on Exhibit
A hereto as Cure Amounts in full and complete satisfaction of all amounts due or
to become due to such parties to compensate such party for all actual pecuniary
loss to such party, and to assign their rights and obligations under such
Assumed Leases and Assumed Contracts to Buyer at Closing. Each of the Assumed
Leases and Assumed Contracts are valid and existing contracts or leases, each
constitutes an executory contract or unexpired lease under the Bankruptcy Code,
and the Debtor has satisfied all requirements of the Bankruptcy Code necessary
to assume and assign such contracts or leases to Buyer without the need for
consent of the non-debtor parties to such contracts or leases. As of the
Closing, any and all defaults under the Assumed Contracts and Assumed Leases
shall be and are hereby determined to be cured in all respects upon payments to
the non-debtor parties to such contracts or leases
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of the Cure Amounts. The non-debtor parties to such Assumed Contracts and
Assumed Leases shall not assert a default or make any claim against Buyer based
on any default by Debtor under such contracts or leases.
13. From and after entry of this Order, the Debtor, creditors, parties to
the Assumed Leases and Assumed Contracts, parties in interest, and each of them,
shall not take or cause to be taken any action which would interfere with the
transfer, assignment and conveyance of the Acquired Assets, the Assumed Leases
or the Assumed Contracts to the Buyer in accordance with the terms of this
Order.
14. All persons or entities who are presently, or at the Closing are, in
possession of any of the Acquired Assets are hereby directed to surrender
possession of such Acquired Assets to the Buyer at the Closing.
15. From and after the Closing, the Buyer shall have the right and
authority, subject to the terms of the Asset Purchase Agreement, to collect for
the account of the Buyer any sums which shall be due and payable on account of
any of the Acquired Assets transferred or intended to be transferred to the
Buyer at the Closing and to endorse with the name of Allerion any checks or
drafts relating to the Acquired Assets which may be payable to the order of
Allerion; provided, however, that the disposition of any such sums and any such
checks shall be in accordance with the terms of the Asset Purchase Agreement.
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16. As of the Closing, all agreements of any kind whatsoever and all orders
of this Court entered in this case prior to the date hereof shall be deemed
amended and/or vacated to the extent required to permit the consummation of the
transactions under the Asset Purchase Agreement. To the extent such other
agreements or orders are inconsistent with this Order or the Asset Purchase
Agreement, this Order and the Asset Purchase Agreement shall in all such cases
govern.
17. Neither the Buyer nor any secured creditor shall be liable for any
transferee tax liability that arises or may arise by operation of law from the
transfers and conveyances effected or authorized hereby, except to the extent
any such liability constitutes an Assumed Obligation. The Debtor may execute and
deliver whatever lawful agreements that are reasonably necessary and make
whatever lawful arrangements that are reasonably required to assure the transfer
and conveyance of the Acquired Assets free and clear of any claims by any
governmental unit for taxes incurred as a consequence of the sale of any of the
Acquired Assets under the terms of the Asset Purchase Agreement or to relieve
the Buyer and any secured creditor of any claim for transferee liability with
respect to such taxes.
18. Pursuant to section 365(f) of the Bankruptcy Code, conditioned upon the
Closing, all rights and obligations under the Assumed Leases and Assumed
Contracts to the extent included in the Acquired Assets and identified in the
Asset
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Purchase Agreement, and set forth on Exhibit A hereto, shall be assumed by
Allerion and assigned to the Buyer, without the execution of any further
documents or instruments. Upon the Closing, Allerion shall have no further
obligations under such Assumed Leases or Assumed Contracts set forth on Exhibit
A pursuant to section 365(k) of the Bankruptcy Code.
19. The provisions of this Order authorizing the Debtor to enter into the
Asset Purchase Agreement, and authorizing and directing the transactions
contemplated by said agreement shall be self-executing and neither the Debtor
nor the Buyer shall be required to execute or file any releases, termination
statements, assignments, consents, or other instruments in order to effectuate
consummation of said agreement or to implement the foregoing provisions hereof
except as provided in said agreement or in this Order. Notwithstanding the
foregoing, the Debtor, the Buyer and all other parties are authorized and
directed to take any and all actions necessary and appropriate to effectuate,
consummate, and implement fully the transactions contemplated by said agreement
and this Order.
20. The Buyer is a purchaser in good faith of the Acquired Assets and is
entitled to the protections afforded by section 363(m) of the Bankruptcy Code,
and is an assignee in good faith of the Assumed Leases and Assumed Contracts.
21. This Order is binding upon and inures to the benefit of any successors
or assigns of the Debtor or the
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Buyer, including any trustee appointed in this case or any subsequent case of
the Debtor under chapter 7 of the Bankruptcy Code. No provision of this Order
shall be modified, amended, revoked or terminated, whether under any plan of
reorganization or otherwise, if such modification, amendment, revocation or
termination is sought by any party receiving notice of the Motion.
22. This Order is a final, appealable order.
DATED: March 16th, 1995
/S/ WILLIAM F. TUOHEY
-------------------------------
HONORABLE WILLIAM F. TUOHEY
United States Bankruptcy Judge
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