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Exhibit 99.2
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re ) Chapter 11
)
UNITEL VIDEO, INC., et al., ) CASE NO. 99-2979 (PJW)
)
Debtors. ) Jointly Administered
ORDER PURSUANT TO SECTIONS 105, 363 AND 365 OF THE
BANKRUPTCY CODE: (A) AUTHORIZING AND APPROVING ASSET
PURCHASE AGREEMENT WITH ALL MOBILE VIDEO INC.;
(B) AUTHORIZING THE SALE OF SUBSTANTIALLY ALL OF THE DEBTORS'
STUDIO DIVISION ASSETS, FREE AND CLEAR OF ALL LIENS, CLAIMS,
INTERESTS, CHARGES AND ENCUMBRANCES, SUBJECT TO THE TERMS OF
THE ASSET PURCHASE AGREEMENT AND SUBJECT TO HIGHER AND/OR
BETTER OFFERS; (C) AUTHORIZING THE DEBTORS TO CONSUMMATE ALL
TRANSACTIONS RELATED TO THE ABOVE; AND (D) GRANTING OTHER RELIEF
This matter is before the Court on the motion (the "Motion") dated
November 22, 2000 of Unitel Video, Inc. ("Unitel"), R Squared, Inc., Unitel 53
LLC and Unitel 57 LLC, debtors and debtors in possession herein (collectively,
the "Debtors"), for the entry of, inter alia, this order (the "Sale Order"):
(i) authorizing and approving that certain asset purchase agreement between
Unitel and Phoenix Business Trust ("Phoenix"), substantially in the form of
Exhibit "A" to the Motion (the "Phoenix Purchase Agreement"); (ii) authorizing
the sale of substantially all of the Debtors' studio division assets
(collectively, as described and defined in the Phoenix Purchase Agreement, the
"Phoenix Purchased Assets"), to Phoenix, free and clear of all liens, claims,
interests, charges and encumbrances, subject to the terms of the Phoenix
Purchase Agreement and subject to higher and/or better offers; (iii)
authorizing the Debtors to consummate all transactions related to the above;
and (iv) authorizing relief consistent with the foregoing in connection with
any asset purchase agreement between the Debtors and any other party submitting
a higher and/or better offer for the Phoenix Purchased Assets in accordance
with the
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bidding procedures established by the Procedures Order (as hereinafter defined);
and the Court having on December 8, 2000 entered its Order, inter alia, (i)
Scheduling a Hearing to Approve Asset Purchase Agreement with MTI/The Image
Group, Inc. for the Sale of Substantially All of the Debtors' Studio Division
Assets, Free and Clear of All Liens, Claims, Interests, Charges and
Encumbrances, Subject to Higher or Better Offers, (ii) Approving the Form and
Manner of Notice in Connection Therewith, and (iii) Approving Bidding Procedures
for the Submission of Any Competing Bids (the "Procedures Order"); and the
Debtors having received a highest and best bid for the Purchased Assets (as
defined in the Purchase Agreement (as defined hereinafter)) from All Mobile
Video Inc. (the "Buyer") pursuant to that certain Asset Purchase Agreement
between Unitel, Unitel 53 LLC and Unitel 57 LLC and the Buyer dated January 5,
2001, a copy of which was separately filed with the Court (the "Purchase
Agreement"); and the Court having considered the Motion and the record in these
proceedings, and having heard the statements of counsel in support of the relief
requested in the Motion at a hearing before the Court (the "Sale Hearing"); and
the Court having found that notice of the Motion was sufficient under the
circumstances; and the Court having been fully advised and having determined
that the legal and factual bases set forth in the Motion and at the Sale Hearing
establish just cause for the relief granted in this Sale Order;
THE COURT MAKES THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW:
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JURISDICTION
A. The Court has jurisdiction over this matter under 28 U.S.C. Sections
157 and 1334. This proceeding is a core proceeding under 28 U.S.C. Section
157(b)(2). Venue is proper in this district under 28 U.S.C. Sections 1408 and
1409.
NOTICE
B. The Debtors have complied with all of the procedures for notice of the
Motion and Sale Hearing set forth in the Procedures Order. Such notice
constitutes appropriate and adequate notice to all parties and is in compliance
with Rules 2002, 6004, 6006 and 9014 of the Federal Rules of Bankruptcy
Procedure (the "Bankruptcy Rules"). No other or further notice of the Motion,
the Sale Hearing or the entry of this Sale Order is necessary or required.
OBJECTIONS; AUCTION; OTHER BIDDERS
C. In response to the Motion and the notice of the Motion, the Debtors
have received objections to the proposed sale of the Purchased Assets to the
Buyer under and pursuant to the Purchase Agreement from the following parties:
King World Productions, Inc. ("King World"), Educational Broadcasting
Corporation ("EBC"), and 423 West 55th Street, LLC. No other objection to the
Motion or the proposed sale to the Buyer has been filed with this Court.
D. An auction (the "Auction") was conducted at the New York City offices
of Kaye, Scholer, Fierman, Hays & Handler, LLP, counsel for the Debtors, on
January 4, 2001. The Buyer, MTI/The Image Group, Inc. and National-Steiner,
L.L.C. participated at the Auction, which was conducted fairly and openly. The
Buyer submitted the highest and best offer at the Auction.
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E. In response to the Motion, the notice of the Motion and the
Procedures Order, the Debtors have received no offers to purchase the Purchased
Assets higher and/or better than the Buyer's offer. Accordingly, the Buyer's
bid is the highest and best bid for the Purchased Assets.
JUSTIFICATION FOR SALE
F. The Debtors have established sound business justification in support
of the proposed sale. Such business justifications include, but are not limited
to, the facts that: (i) Since shortly before the Filing Date (as defined in the
Motion), Getzler (as defined in the Motion), the Debtors' financial advisory
firm, has, at the direction of the Debtors' Board of Directors, served as the
Debtors' management consultant, effectively serving the interim role of the
Debtors' chief executive officer and chief financial officer; (ii) Pursuant to
the DIP Facility (as defined in the Motion), the Debtors are obligated to
market the Studio Division (as defined in the Motion) business and assets and
the Debtors believe that their failure to move forward in seeking approval of
the proposed transaction will jeopardize the continued availability of the DIP
Facility and could leave the Debtors in a position without a source of
consensual financing; and (iii) the Debtors believe that a sale pursuant to
section 363 of title 11 of the United States Code (the "Bankruptcy Code") and
subject to higher and better offers is the most effective means of maximizing
the value for the Purchased Assets. After considering the circumstances
described in the Motion, the Court has determined that the procedures outlined
in the Procedures Order and the Buyer's offer present the best opportunity for
the Debtors to realize the highest recovery possible for the Purchased Assets
for the benefit of all creditors. The sale process conducted by
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the Debtors' Court-approved investment bankers, Houlihan Lokey Howard & Zukin
Capital ("Houlihan Lokey"), was non-collusive, fair and reasonable, and
conducted in good faith.
G. The transactions contemplated by the Motion, as approved and
implemented by this Sale Order, are in compliance with and satisfy all
applicable provisions of the Bankruptcy Code, including, without limitation,
sections 363(b), (f) and (m) and 365 of title 11 of the United States Code,
(the "Bankruptcy Code"). The terms and conditions of the sale of the Purchased
Assets and the other transactions approved by this Sale Order are fair and
reasonable.
H. The Buyer's offer, as approved by this Sale Order, is the highest and
best offer for the Purchased Assets. The aggregate purchase price offered by
the Buyer constitutes full and adequate consideration and reasonably equivalent
value for the Purchased Assets.
I. The transfer of the Purchased Assets on the Closing to the Buyer for
the consideration set forth in the Purchase Agreement is in the best interests
of the Debtors' estates, their creditors and all parties in interest.
GOOD FAITH
J. The sale process conducted pursuant to the Procedures Order was
non-collusive, fair and reasonable, and was conducted openly and in good faith.
The transfer of the Purchased Assets to the Buyer represents an arm's-length
transaction and has been negotiated in good faith between the parties. The
Buyer, as transferee of the Purchased Assets, is a good faith purchaser under
section 363(m) and, as such, is entitled to the full protection of section
363(m) of the Bankruptcy Code.
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SALE FREE AND CLEAR OF LIENS, CLAIMS AND ENCUMBRANCES
K. The Debtors are authorized to sell the Purchased Assets free and
clear of all Liens (as defined in Paragraph "(4)" hereinafter) pursuant to and
in accordance with section 363(f) of the Bankruptcy Code.
LEASES AND CONTRACTS TO BE ASSUMED AND ASSIGNED
L. Upon the transfer of the Assigned Contracts(1) (consisting of
certain real property leases and subleases and production agreements) to the
Buyer and, subject to the payment of the cure amounts (as set forth in Exhibit
"C" to the Motion) contemplated and required by this Sale Order: (A) each Lease
(other than the Ninth Avenue Lease) constitutes a valid and existing leasehold
interest in the property subject to such Lease; (B) none of the Debtors' rights
(including options, renewals and extensions) have been released or waived under
any of the Assigned Contracts; (C) the Assigned Contracts have not been
terminated and are in full force and effect; and (D) no default on the part of
the Debtors (monetary or non-monetary) exists under any Assigned Contract
(including, without limitation, with respect to any amounts payable thereunder),
nor does there exist any event or condition which with the passage of time or
the giving of notice, or both, would constitute such a default.
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(1) All capitalized terms used herein but not otherwise defined herein shall
have the meanings ascribed to such terms in the Purchase Agreement. However,
for purposes of this Sale Order, the term "Assigned Contracts" shall not
include the Ninth Avenue Lease or the Selected Contracts.
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CORPORATE AUTHORITY; CONSENTS AND APPROVALS
M. The Debtors have full corporate power and authority to execute the
Purchase Agreement, any related agreements and all other documents contemplated
by the Purchase Agreement or such other related agreements, and the sale of the
Purchased Assets by the Debtors has been duly and validly authorized by all
necessary corporate power and authority necessary to consummate the
transactions contemplated by the Purchase Agreement. No consents or approvals,
other than this Sale Order and those expressly provided for in the Purchase
Agreement, are required for the Debtors to consummate such transactions.
BASED UPON THE FOREGOING, IT IS HEREBY ORDERED that
(1) The Motion is approved.
(2) The Purchase Agreement and the terms and conditions contained therein
are approved. The Debtors are authorized and directed at the Closing to
execute, deliver, implement and fully perform the Purchase Agreement, together
with all additional instruments, agreements and documents which are
contemplated by the Purchase Agreement and those instruments, agreements and
documents which may be reasonably necessary, convenient or desirable in
implementing the Purchase Agreement, and to take all further actions (including
any prorations, adjustments and the like provided for in the Purchase
Agreement) as may be necessary or appropriate in performing the obligations as
contemplated by the Purchase Agreement. All objections to the Motion that were
not withdrawn or settled on the record or otherwise are overruled, except that
the limited objection of EBC is adjourned.
(3) Subject to the fulfillment of the terms and conditions of the
Purchase Agreement, at the Closing, the Debtors are authorized to sell,
transfer, assign and convey to the Buyer all of the Debtors' rights, title and
interest in and to the Purchased Assets. The Debtors are
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authorized and empowered at the Closing to deliver bills of sale, assignments
and such other documentation contemplated by the Purchase Agreement and this
Sale Order.
(4) The transfer of the Purchased Assets to the Buyer as of the Closing
will be free and clear of any and all liens, rights of offsets, recoupment,
claims, interests, charges and encumbrances therein, thereon and/or thereagainst
of whatever kind, type, nature, or description, including, without limitation,
any lien, security interest, pledge, hypothecation, encumbrance or other charge,
interest or claim (including, but not limited to, any "claim" as defined in
section 101(5) of the Bankruptcy Code) in, against or with respect to any of
the Purchased Assets, having arisen, existed or accrued prior to and through the
Closing, whether direct or indirect, absolute or contingent, choate or inchoate,
fixed or contingent, matured or unmatured, liquidated or unliquidated, arising
by agreement, statute or otherwise and whether arising prior to, on or after the
Filing Date (as defined in the Motion), including, without limitation, the liens
and claims identified on Exhibit "B" to the Motion. All of the foregoing
interests described in this Paragraph "(4)" are collectively referred to herein
as "Liens."
(5) This Sale Order is and will be effective as a determination that, upon
the Closing, all Liens in, on or upon the Purchased Assets are adjudged and
declared to be unconditionally released, discharged and terminated, with all
such Liens to attach to the cash proceeds of the sale of the Purchased Assets
(the "Proceeds"), with the same force, validity, effect, priority and
enforceability, inter se, as such Liens had in the Purchased Assets prior to
such sale. Except as otherwise provided in this Sale Order, any issues
regarding the extent, validity, perfection, priority and enforceability of such
Liens with respect to such proceeds will be determined by the Court, if, as and
when appropriate, upon proper application at a later date, including pursuant
to a proposed plan of reorganization.
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(6) The Proceeds shall be distributed as follows:
A. The Debtors are authorized and directed to transfer on the Closing
$8.9 million of the Proceeds to Bear Stearns Funding, Inc. ("Bear Stearns") in
satisfaction of Bear Stearns' liens against the Purchased Assets. Upon receipt
of $8.9 million, Bear Stearns shall be deemed to release $8.9 million of its
secured claims against any and all property of the Debtors, including the
Proceeds. The Debtors shall endeavor to determine prior to the Closing Date the
remaining undisputed amounts owing to Bear Stearns and the Debtors agree to
transfer all such remaining undisputed amounts owing to Bear Stearns on the
Closing, subject to and in accordance with Paragraph 6(C) hereof.
B. The Debtors are authorized and directed to transfer on the Closing
$870,000 of the Proceeds to Houlihan Lokey in accordance with the terms of the
engagement letters between the Debtors and Houlihan Lokey (the "Engagement
Letters"), which were approved by Court order dated October 8, 1999. Upon
receipt of $870,000 of the Proceeds (or a lesser amount if agreed to in writing
by Houlihan Lokey), Houlihan Lokey shall be deemed to release the Debtors and
Heller Financial, Inc. ("Heller") with respect to any and all claims of
Houlihan Lokey that arise under the Engagement Letters or from the sale of the
Purchased Assets or of any other property of the Debtors.
C. The Debtors are authorized and directed to maintain the amount of
$4.11 million of the Proceeds (the "Segregated Proceeds") in a segregated
interest-bearing account. All Liens (other than the Liens of Heller) shall
attach to the Segregated Proceeds with the same force, validity,
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effect, priority and enforceability, inter se, as such Liens had in the
Purchased Assets prior to such sale, including, without limitation, (a) the
liens, if any, of Bear Stearns against the Purchased Real Property that remain
after payment of the amount set forth in Paragraph "6(A)" (in the approximate
asserted amount of $2.28 million), (b) the liens of Charter Financial, Inc.
pursuant to that certain Capital Lease Agreement dated as of June 28, 1995
between Unitel and Charter (in the approximate asserted amount of $530,000); (c)
the liens and claims of King World, Inc. pursuant to that certain Advance
Payment and Security Agreement dated as of January 19, 1999 (the "Advance
Payment Agreement") (in the approximate asserted amount of $600,000); (d) the
mechanic's lien, if any, of MBL Contracting Corp. against the Purchased Assets
(in the approximate asserted amount of $620,000); (e) the mechanic's lien, if
any, of Comfort Air Designs, Inc. against the Purchased Assets (in the
approximate asserted amount of $16,000); (f) the mechanic's lien, if any, of
Downtown Group, Inc. against the Purchased Assets or the building located at 423
West 55th Street, New York, New York (in the approximate asserted amount of
$23,000); and (g) the judgment lien, if any, of JRJ Associates Inc. against the
Property (in the approximate asserted amount of $40,000). The Segregated
Proceeds shall be maintained by the Debtors and shall not be distributed to any
entity except in accordance with either (a) an Order of this Court entered after
at least fifteen (15) days' notice to counsel for the Debtors, counsel for
Heller, counsel for the Official Committee of Unsecured Creditors (the
"Committee"), and the holders of the alleged Liens (and counsel, if known), or
(b) a written agreement among the Debtors, Heller, the Committee and
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the holder of an alleged Lien. Notwithstanding anything to the contrary
contained in this Sale Order, to the extent that the Court determines (a) that
the Debtors could not assume the KW Contract without also assuming the Advance
Payment Agreement and curing the default thereunder existing as of the Closing
Date, the Debtors shall be obligated to cure the default under the Advance
Payment Agreement existing as of the Closing Date, or (b) that King World has a
right of repayment of advances or recoupment against the Buyer, the Debtors
shall be obligated to pay King World from the Segregated Funds the amount of
King World's allowed advance or recoupment claim existing as of the Closing
Date.
D. The Debtors are authorized and directed to transfer to Heller on the
Closing an amount (the "Heller Proceeds") equal to the lesser of (i) the
aggregate amounts outstanding to Heller pursuant to the DIP Facility and the
Pre-Petition Credit Agreement (as defined in the Motion) and (ii) the Proceeds
less the sum of (a) the Cure Amounts (as defined hereinafter), (b) the
aggregate of the amounts to be transferred to Bear Stearns and Houlihan Lokey
pursuant to Paragraph 6(A) and (B) hereof, respectively, and (c) the Segregated
Proceeds.
E. Subject to the existing rights of Heller under the DIP Facility and
the Pre-Petition Credit Agreement, (i) in the event that any creditor
establishes an allowed valid, perfected Lien against certain of the Purchased
Assets senior to the Liens of Heller, to the extent required by subsequent
order of the Court, and to the extent the Segregated Proceeds are not
sufficient to satisfy such Lien, Heller shall disgorge to such creditor an
amount equal to the allowed amount of such creditor's secured claim against the
Purchased Assets: provided that
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notwithstanding the foregoing, Heller shall not be required pursuant hereto
to disgorge in the aggregate any amounts in excess of the Heller Proceeds;
or (ii) in the event that it is determined, either by Court order or by
agreement among the Debtors, the Committee and Heller, that Heller does not
have a valid, perfected Lien against certain of the Purchased Assets,
Heller shall disgorge to the Debtors an amount equal to the difference
between (a) the Heller Proceeds and (b) the amount of Heller's allowed,
valid, perfected Lien against the Purchased Assets.
F. Upon receipt by Heller of the Heller Proceeds, the Debtors' total
indebtedness to Heller under the DIP Facility and the Pre-Petition Credit
Agreement shall be reduced by an amount equal to the Heller Proceeds less
any amounts required to be disgorged pursuant to Paragraph 6(E) hereof.
G. The Proceeds less the sum of (a) the Cure Amounts (as defined
hereinafter), (b) the aggregate of the amounts to be transferred to Bear
Stearns and Houlihan Lokey pursuant to Paragraph 6(A) and (B) hereof,
respectively, (c) the Segregated Proceeds and (d) the Heller Proceeds (the
"Net Proceeds") shall be maintained by the Debtors, used by the Debtors to
administer and wind-down their estates (including the payment of
administrative expense claims) in accordance with a budget agreed upon by
the Debtors and the Committee, and distributed pursuant to further order of
the Court, including in connection with any confirmed plan.
(7) Notwithstanding anything to the contrary contained herein, this Sale
Order shall not, in any way, affect, impair or restrict the liens, claims,
encumbrances and interests of
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any entity (including the Debtors) in, against, or with respect to, any of the
Debtors' assets other than the Purchased Assets.
(8) A. The Debtors are authorized to assume the Assigned Contracts and
assign them to the Buyer. The Buyer has provided adequate assurance of its
future performance under the Assigned Contracts, and the assumption and
assignment of the Assigned Contracts to the Buyer satisfy the requirements of
section 365 of the Bankruptcy Code. Notwithstanding any provision of the
Assigned Contracts (including those described in sections 365(b)(2) and (f) of
the Bankruptcy Code) that prohibits, restricts or conditions an assignment or
transfer, the Debtors are authorized and directed at the Closing, pursuant to
section 365 of the Bankruptcy Code, to assume the Assigned Contracts and assign
their rights, title and interest therein to the Buyer. Except as otherwise set
forth in Paragraph "8(C)" below, the amounts set forth on Exhibit "C" to the
Motion (excluding the amount set forth for the Ninth Avenue Lease, the "Cure
Amounts") shall constitute the full and final cure payments required under
section 365(b) of the Bankruptcy Code as to the respective Assigned Contracts
listed thereon. The Debtors are authorized and directed to pay the Cure Amounts
to the respective holders of such claims from the proceeds of the sale promptly
after the Closing Date.
B. Nothing contained in this Paragraph "8" shall be binding upon or
have affect upon the Ninth Avenue Lease and EBC, nor shall any of the related
findings contained in this Sale Order be binding upon EBC. A hearing to
consider the Debtors' motion to assume the Ninth Avenue Lease and assign it to
the Buyer shall be scheduled for January 30, 2001 at 4:00 p.m. Nothing
contained herein or in the Motion (including on Exhibit "C" thereto) shall be
deemed to fix the cure amount, if any, due on the Ninth Avenue Lease.
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C. The Cure Amount for the 55th Street Lease is $69,062.00. On or prior
to the Closing Date, the Debtors or the Buyer shall pay $50,000 to the landlord
for the 55th Street Lease as an additional security deposit in accordance with
the terms of such lease.
D. Upon the assignment of the Assigned Contracts and the payment of the
Cure Amounts, pursuant to section 365(k) of the Bankruptcy Code, the Debtors
shall be relieved from any further liability under the Assigned Contracts.
(9) The GE Lease Agreement, the GE Master Lease Agreement and the
Intercompany Leases (each as defined in the Motion) shall be deemed rejected as
of the Closing Date, pursuant to section 365 of the Bankruptcy Code. GE Capital
(as defined in the Motion) shall be required to file a proof of claim with the
Clerk of the Court, with a copy to Bankruptcy Services, LLC, the Debtors' claims
agent, within the later of (a) sixty (60) days of entry of this Sale Order and
(b) thirty (30) days after GE Capital receives notice that the Closing Date has
occurred, for any and all alleged damages arising from the rejection of the GE
Lease Agreement and/or the GE Master Lease Agreement or from the Debtors' use of
the equipment associated therewith.
(10) Except as expressly set forth in this Sale Order or the Purchase
Agreement, including with respect to the Assumed Future Obligations, the Buyer
has not, and will not be deemed to have, assumed any Liens including "claims"
(as that term is defined in section 101(5) of the Bankruptcy Code) against the
Debtors. Under no circumstances will the Buyer be deemed a successor of or to
the Debtors for any liability of the Debtors (whether direct or indirect,
liquidated or unliquidated, choate or inchoate or contingent or fixed)
whatsoever.
(11) All of the Debtors' rights, title and/or interests in the Purchased
Assets are, as of the Closing, transferred to and vested in the Buyer. Subject
to the fulfillment of the terms
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and conditions of the Purchase Agreement, as of the Closing, this Sale Order
will be considered and constitute for any and all purposes a full and complete
general assignment, conveyance and transfer of the Purchased Assets or a bill of
sale transferring good and marketable title in the Purchased Assets to the
Buyer. Any and all governmental recording offices and all other parties, persons
or entities are authorized to accept this Sale Order as such an assignment or
bill of sale and, if necessary, this Sale Order may be accepted for recordation
on or after the Closing as conclusive evidence of the free and clear,
unencumbered transfer of title to the Purchased Assets conveyed to the Buyer at
the Closing.
(12) The transfer of the Purchased Assets to the Buyer under this Sale
Order is exempt from any transfer or stamp tax under section 1146(c) of the
Bankruptcy Code.
(13) If any of the Purchased Assets is in the care or custody of any
non-debtor party, such party following the Closing shall immediately, upon
written request and presentation of this Sale Order, surrender any such
Purchased Assets in its care or custody to the Buyer.
(14) Upon the Closing, the Buyer is granted immediate and unfettered
access to the Purchased Assets conveyed in the Closing. The Debtors and their
officers, agents and employees who have access to and control over any of the
Purchased Assets shall cooperate in delivering the Purchased Assets to Buyer and
shall cease exercising control over the Purchased Assets upon the Closing,
except as directed by the Buyer in accordance with the Purchase Agreement and
this Sale Order, and such parties are enjoined after the Closing from exercising
any control and/or interfering with the Buyer's use, peaceful enjoyment and
control of the Purchased Assets without the Buyer's consent.
(15) On the Closing Date, each of the Debtors' creditors having Liens on
any of the Purchased Assets is authorized and directed to execute such documents
and take all actions as
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may be necessary to release its Liens, if any, in, on or against the Purchase
Assets, if any, as such Liens may have been recorded or may otherwise exist.
(16) If any person or entity that has filed financing statements or other
documents or agreements evidencing Liens in, on or against the Purchased Assets
has not delivered to the Debtors prior to the Closing, in proper form for
filing and executed by the appropriate parties, termination statements,
instruments of satisfaction, releases of all Liens or other interests that such
person or entity has with respect to the Purchased Assets, the Debtors and the
Buyer are authorized to execute and file such statements, instruments, releases
and other documents on behalf of such person or entity with respect to the
Purchased Assets.
(17) Any allocation of the Purchase Price in the Purchase Agreement shall
not be binding upon the Debtors' creditors (including, without limitation,
Heller), the Committee and other parties in interest and will not have any
precedential value with respect to any of such parties or to any allocations of
the value contained in a plan of reorganization or liquidation involving the
Debtors, their estates and their creditors.
(18) This Court has exclusive jurisdiction to implement and enforce the
terms and provisions of the Purchase Agreement (and all documents contemplated
thereby) and this Sale Order, including any disputes relating thereto or with
respect to the sale, the proceeds of sale, the transfer or assignment and
delivery of the Purchased Assets to the Buyer and the Buyer's peaceful use and
enjoyment thereof after the Closing, free and clear of any Liens, regardless of
whether a plan of reorganization has been confirmed in these chapter 11 cases
and irrespective of the provisions of any such plan or order confirming such
plan; and the Court retains jurisdiction over the parties to the Purchase
Agreement with respect to any controversies which may arise thereunder.
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(19) The terms and provisions of this Sale Order are binding in all
respects upon the Debtors, their employees, officers and directors, their
creditors, their shareholders, any parties having received notice of these
proceedings, any affected third parties and other parties-in-interest, any
persons asserting a Lien in, on or against the Purchased Assets, the Buyer and
all of the aforementioned parties' successors or assigns, including, without
limitation, any trustee subsequently appointed for the Debtors under the
Bankruptcy Code.
(20) The failure specifically to include any particular provisions in the
Purchase Agreement or the agreements contemplated thereby in this Sale Order
will not diminish the effectiveness of such provision, it being the intent of
this Court that the Purchase Agreement and agreements contemplated thereby are
authorized, approved and effective in their entirety. In the event of any
inconsistency between this Sale Order and the Purchase Agreement, this Sale
Order and the terms hereof shall be controlling.
(21) This is a final order and enforceable upon its entry. To the extent
necessary under Rules 5003, 6004(g), 9014, 9021 and 9022 of the Bankruptcy
Rules, the Court expressly finds that there is no just reason for delay in the
implementation of this Sale Order and expressly directs entry of judgment as
set forth in this Sale Order. This Sale Order shall be effective immediately
and the stay imposed by Bankruptcy Rule 6004(g) is otherwise abrogated.
(22) Under section 363(m) of the Bankruptcy Code, the reversal or
modification of this Sale Order on appeal will not affect the validity of the
transfer of the Purchased Assets to the Buyer, as well as the transactions
contemplated or authorized by this Sale Order, unless the same is stayed
pending appeal prior to the Closing of the transactions authorized by the Sale
Order.
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(23) Except as otherwise set forth herein or in the Asset Purchase
Agreement, the Buyer is not assuming nor shall it in any way whatsoever be
liable or responsible, as a successor or otherwise, for any liabilities, debts
or obligations of the Debtors or any liabilities, debts or obligations in any
way whatsoever relating to or arising from the Purchased Assets or the Debtors'
operations or use of the Purchased Assets, including, any liabilities calculable
by reference to the Debtors or their assets or operations, or relating to
continuing conditions existing on or prior to consummation of the transactions
contemplated by the Purchase Agreement which liabilities, debts and obligations
are hereby extinguished insofar as they may give rise to successor liability,
without regard to whether the claimant asserting any such liabilities, debts or
obligations has delivered to Buyer a release thereof. Except as otherwise set
forth herein or in the Asset Purchase Agreement, without limiting the generality
of the foregoing, the Buyer shall not be liable or responsible, as a successor
or otherwise, for the Debtors' liabilities, debts or obligations, whether
calculable by reference to the Debtors or their operations, or under or in
connection with (i) any employment or labor agreements, (ii) any pension,
welfare, compensation or other employee benefit plans, agreements, practices and
programs, including, without limitation, any pension plan of the Debtors, (iii)
the cessation of the Debtors' operations, dismissal of employees, or termination
of employment or labor agreements or pension, welfare, compensation or other
employee benefit plans, agreements, practices and programs, obligations which
might otherwise arise from or pursuant to the Employee Retirement Income
Security Act of 1974, as amended, the Fair Labor Standards Act, Title VII of
Civil Rights Act of 1964, the Age Discrimination And Employment Act of 1967, the
Federal Rehabilitation Act of 1973, the National Labor Relations Act, or the
Consolidated Omnibus Budget Reconciliation Act of 1985, (iv) workmen's
compensation occupational disease or unemployment or temporary disability
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insurance claims, (v) environmental liabilities, debts, claims or obligations
arising from conditions first existing on or prior to the Closing (including
without limitation the presence of hazardous, toxic, polluting, or
contaminating substances or wastes) which may be asserted on any basis,
including without limitation under the comprehensive environmental response,
compensation and liability act, 42 U.S.C. section 9601, et seq., (vi) any bulk
sales or similar law, (vii) any tax statutes or ordinances, including, without
limitation, the Internal Revenue Code of 1986, as amended, and (viii) any
products liability or similar claims whether pursuant to any state or any
federal laws or otherwise.
(24) Except as otherwise set forth herein or in the Asset Purchase
Agreement, under no circumstances shall the Buyer be deemed a successor of or
to the Debtors with respect to any Liens of others against or in the Debtors or
the Purchased Assets of any kind or nature whatsoever. The sale, transfer,
assignment and delivery of the Purchased Assets shall not be subject to any
Liens, of any kind or nature whatsoever (other than the obligations under the
Assigned Contracts accruing after the Closing Date), which Liens shall remain
with, and continue to be obligations of, the Debtors and attach to the
Proceeds. All persons holding any Lien, other than the obligations under the
Assigned Contracts accruing after the Closing Date, against or in the Debtors
or the Purchased Assets of any kind or nature whatsoever shall be, and hereby
are, forever barred, estopped, and permanently enjoined from asserting,
prosecuting, or otherwise pursuing such Lien of any kind or nature whatsoever
against the Buyer, its property, its successors and assigns, or the Purchased
Assets with respect to any Lien of any kind or nature whatsoever, other than an
obligation under the Assigned Contracts accruing after the Closing Date, such
person or entity had, has, or may have against or in the Debtors, their
estates, officers, directors, shareholders, or the Purchased Assets. Following
the Closing Date, no holder of a Lien
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against the Debtors shall interfere with the Buyer's title to or use and
enjoyment of the Purchased Assets based on or related to such Lien. Other than
the obligations under the Assigned Contracts accruing after the Closing Date,
under no circumstances shall any holder of a Lien be able to commence, continue
or otherwise pursue or enforce any remedy, claim or cause of action against the
Buyer, and each holder of a Lien is permanently enjoined from commencing,
continuing or otherwise pursuing or enforcing any remedy, claim or cause of
action against the Buyer on account of such Lien.
(25) Each non-Debtor party to the Assigned Contracts accruing after the
Closing Date hereby is forever barred, estopped, and permanently enjoined from
asserting against the Buyer or its property any default existing as of the
Closing, any counterclaim, defense, setoff or any other claim asserted or
assertable (as of the Closing) against the Debtors or the Buyer.
Dated: Wilmington, Delaware
January 8, 2001
/s/ Peter J. Walsh
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The Honorable Peter J. Walsh
Chief United States Bankruptcy Judge
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