Notice Of Debtors’ Proposed Order
- Date
- 2024-08-26
Summary
A notice of the Debtors' proposed sale order in In re: Vyaire Medical, Inc., et al., Case No. 24-11217 (BLS), in the U.S. Bankruptcy Court for the District of Delaware, filed August 21, 2024 as Doc 401. It states that the Debtors filed a Notice of Successful Bidder [Docket No. 400] designating Trudell Medical Limited as Purchaser of certain Respiratory Diagnostics Assets, with approval sought at a Sale Hearing on August 26, 2024 before Judge Brendan L. Shannon. Exhibit A is the proposed order approving the Trudell APA, authorizing the sale free and clear of liens, claims, interests and encumbrances, and approving assumption and assignment of contracts and leases. The proposed order waives the 14-day stay under Bankruptcy Rules 6004(h) and 6006(d). The notice is signed by Cole Schotz P.C. and Kirkland & Ellis LLP as co-counsel to the Debtors.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Full text
Case 24-11217-BLS Doc 401 Filed 08/21/24 Page 1 of 50
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
)
In re: ) Chapter 11
)
VYAIRE MEDICAL, INC., et al.,1 ) Case No. 24-11217 (BLS)
)
Debtors. ) (Jointly Administered)
)
)
NOTICE OF DEBTORS’ PROPOSED ORDER
(I) APPROVING THE TRUDELL ASSET PURCHASE
AGREEMENT AND AUTHORIZING THE SALE OF CERTAIN
VENTILATION ASSETS OF THE DEBTORS OUTSIDE THE
ORDINARY COURSE OF BUSINESS, (II) AUTHORIZING THE SALE
OF ASSETS FREE AND CLEAR OF ALL LIENS, CLAIMS, INTERESTS,
AND ENCUMBRANCES, (III) AUTHORIZING THE ASSUMPTION AND
ASSIGNMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
IN CONNECTION THEREWITH, AND (IV) GRANTING RELATED RELIEF
PLEASE TAKE NOTICE that, on August 21, 2024, the Debtors filed the Notice of
(I) Successful Bidder for the Sale of Certain of the Debtors’ Respiratory Diagnostics Assets, (II)
Proposed Purchase Agreement in Connection Therewith, and (III) Proposed Sale Order in
Connection Therewith [Docket No. 400] (the “Notice of Successful Bidder”),2 (a) designating
Trudell Medical Limited (“Trudell”) as a Successful Bidder (the “Purchaser”) in connection with
the sale of certain of the Debtors’ Respiratory Diagnostics Assets and (b) disclosing the proposed
form of Trudell Asset Purchase Agreement.
PLEASE TAKE FURTHER NOTICE that the proposed form of order to authorize the
Sale Transaction under the Trudell Asset Purchase Agreement (the “Sale Order”) is attached hereto
as Exhibit A. The Debtors reserve the right to modify such proposed order prior to the Sale
Hearing.
PLEASE TAKE FURTHER NOTICE that the Debtors will seek approval of the sale of
such Respiratory Diagnostics Assets to the Purchaser at the Sale Hearing scheduled to commence
on August 26, 2024, at 10:00 a.m. (prevailing Eastern Time) before the Honorable Judge
1 The last four digits of Debtor Vyaire Medical, Inc.’s federal tax identification number are 6495. A complete list
of each of the Debtors in these chapter 11 cases and each such Debtor’s federal tax identification number may be
obtained on the website of the Debtors’ claims and noticing agent at https://omniagentsolutions.com/Vyaire. The
location of Debtor Vyaire Medical, Inc.’s principal place of business and the Debtors’ service address in these
chapter 11 cases is 26125 North Riverwoods Boulevard, Mettawa, Illinois, USA 60045.
2 Capitalized terms used but not defined herein have the meanings given to them in the Notice of Successful Bidder
or Bidding Procedures Order (as defined therein), as applicable.
Case 24-11217-BLS Doc 401 Filed 08/21/24 Page 2 of 50
Brendan L. Shannon, United States Bankruptcy Judge for the Bankruptcy Court for the District of
Delaware, at 824 North Market Street, 6th Floor, Courtroom No. 1, Wilmington, Delaware 19801.
The Sale Hearing may be adjourned by announcement in open Court or on the Court’s calendar
without any further notice required. The Debtors reserve the right to amend, revise,
PLEASE TAKE FURTHER NOTICE that you may obtain additional information
concerning the above-captioned chapter 11 cases at the website maintained in these chapter 11
cases at https://omniagentsolutions.com/Vyaire.
[Remainder of Page Intentionally Left Blank]
2
Case 24-11217-BLS Doc 401 Filed 08/21/24 Page 3 of 50
Dated: August 21, 2024
Wilmington, Delaware
/s/ Patrick J. Reilley
COLE SCHOTZ P.C. KIRKLAND & ELLIS LLP
Patrick J. Reilley, Esq. (No. 4451) KIRKLAND & ELLIS INTERNATIONAL LLP
500 Delaware Avenue, Suite 1410 Joshua A. Sussberg, P.C. (admitted pro hac vice)
Wilmington, Delaware 19801 601 Lexington Ave
Telephone: (302) 652-3131 New York, New York 10022
Facsimile: (302) 652-3117 Telephone: (212) 446-4800
Email: preilley@coleschotz.com Facsimile: (212) 446-4900
Email: joshua.sussberg@kirkland.com
- and -
- and -
Michael D. Sirota, Esq. (admitted pro hac vice)
Warren A. Usatine, Esq (admitted pro hac vice) Spencer A. Winters, P.C. (admitted pro hac vice)
Court Plaza North, 25 Main Street Yusuf U. Salloum (admitted pro hac vice)
Hackensack, New Jersey 07601 333 West Wolf Point Plaza
Telephone: (201) 489-3000 Chicago, Illinois 60654
Facsimile: (201) 489-1536 Telephone: (312) 862-2000
Email: msirota@coleschotz.com Facsimile: (312) 862-2200
wusatine@coleschotz.com Email: spencer.winters@kirkland.com
yusuf.salloum@kirkland.com
Co-Counsel to the Debtors Co-Counsel to the Debtors
and Debtors in Possession and Debtors in Possession
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Case 24-11217-BLS Doc 401 Filed 08/21/24 Page 4 of 50
Exhibit A
Proposed Sale Order – Respiratory Diagnostics Assets
Case 24-11217-BLS Doc 401 Filed 08/21/24 Page 5 of 50
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
)
In re: ) Chapter 11
)
VYAIRE MEDICAL, INC., et al.,1 ) Case No. 24-11217 (BLS)
)
Debtors. ) (Jointly Administered)
)
ORDER (I) APPROVING THE
TRUDELL ASSET PURCHASE AGREEMENT AND
AUTHORIZING THE SALE OF CERTAIN RESPIRATORY
DIAGNOSTICS ASSETS OF THE DEBTORS OUTSIDE THE
ORDINARY COURSE OF BUSINESS, (II) AUTHORIZING THE SALE
OF ASSETS FREE AND CLEAR OF ALL LIENS, CLAIMS, INTERESTS,
AND ENCUMBRANCES, (III) AUTHORIZING THE ASSUMPTION
AND ASSIGNMENT OF EXECUTORY CONTRACTS AND UNEXPIRED
LEASES IN CONNECTION THEREWITH, AND (IV) GRANTING RELATED RELIEF
Upon the motion, dated June 10, 2024 [Docket No. 16] (the “Motion”)2 of the debtors and
debtors in possession in the above-captioned chapter 11 cases (collectively, the “Debtors”),
pursuant to sections 105, 363, and 365 of title 11 of the United States Code (the “Bankruptcy
1 The last four digits of Debtor Vyaire Medical, Inc.’s federal tax identification number are 6495. A complete list
of each of the Debtors in these Chapter 11 Cases and each such Debtor’s federal tax identification number may
be obtained on the website of the Debtors’ claims and noticing agent at https://omniagentsolutions.com/Vyaire.
The location of Debtor Vyaire Medical, Inc.’s principal place of business and the Debtors’ service address in
these Chapter 11 Cases is 26125 North Riverwoods Boulevard, Mettawa, Illinois, USA 60045.
2 All capitalized terms used but not otherwise defined in this Order shall have the meaning ascribed to them later
in this Order, in the Order (I) Approving Bidding Procedures in Connection with the Sale of Substantially All of
the Debtors’ Assets, (II) Authorizing the Debtors to Enter Into a Stalking Horse Agreement and Provide Bid
Protections, (III) Approving the Form and Manner of Notice Thereof, (IV) Scheduling an Auction and Sale
Hearing, (V) Approving Procedures for the Assumption and Assignment of Contracts, (VI) Approving the Sale of
the Debtors’ Assets Free and Clear, and (VII) Granting Related Relief [Docket No. 249] (the “Bidding
Procedures Order”), Final Order (I) Authorizing the Debtors to Obtain Postpetition Financing, (II) Authorizing
the Debtors to Use Cash Collateral, (III) Granting Liens and Providing Superpriority Administrative Expense
Claims,(IV) Granting Adequate Protection, (V) Modifying Automatic Stay, and (VI) Granting Related Relief
[Docket No. 248] (together with the Interim Order (I) Authorizing the Debtors to Obtain Postpetition Financing,
(II) Authorizing the Debtors to Use Cash Collateral, (III) Granting Liens and Providing Superpriority
Administrative Expense Claims, (IV) Granting Adequate Protection, (V) Modifying Automatic Stay,
(VI) Scheduling a Final Hearing, and (VII) Granting Related Relief [Docket No. 103], the “DIP Orders”), or in
the Trudell Asset Purchase Agreement (the “Trudell APA”) [Docket No. 388, Exhibit A], as applicable.
Case 24-11217-BLS Doc 401 Filed 08/21/24 Page 6 of 50
Code”), Rules 2002, 6003, 6004, 6006, 9006, 9007, 9008 and 9014 of the Federal Rules of
Bankruptcy Procedure (the “Bankruptcy Rules”) and Rules 2002-1, 6004-1 and 9006-1 of the
Local Rules of Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the
District of Delaware (the “Local Rules”), seeking entry of an order (this “Order”): (a) approving
the Asset Purchase Agreement related to the Debtors’ Respiratory Diagnostics Assets (as may be
amended or otherwise modified from time to time and including all related documents, exhibits,
schedules, and agreements thereto, collectively, the “Trudell APA”), substantially in the form
attached hereto as Exhibit 1, between and among Vyaire Medical, Inc. (the “Seller”) and Trudell
Medical Limited (the “Purchaser”), and authorizing the sale of the “Acquired Assets” (as defined
in the Trudell APA) outside the ordinary course of business pursuant to the terms of the Trudell
APA and this Order (the “Sale” and, such transaction, the “Sale Transaction”), (b) authorizing the
Sale of the Acquired Assets and other transactions contemplated by the Trudell APA to the
Purchaser free and clear of all Claims (as defined below), Encumbrances (as defined in the Trudell
APA), Liabilities (as defined in the Trudell APA), rights, other interests of any kind or nature
whatsoever (“Interests”), and other encumbrances of any kind or nature whatsoever
(“Encumbrances” and collectively, “Claims, Interests, and Encumbrances”) (other than Permitted
Encumbrances and Assumed Liabilities, as defined in the Trudell APA), in accordance with the
terms of the Trudell APA, (c) approving the assumption and assignment of certain executory
contracts and unexpired leases, and (d) granting related relief; and the Court having entered the
Bidding Procedures Order on July 11, 2024 [Docket No. 249]; and the Debtors having filed the
Notice of Successful Bidder [Docket No. [●]] in accordance with the Bidding Procedures Order,
designating the Purchaser as the Successful Bidder for the Acquired Assets pursuant to the Trudell
APA; and the Court having reviewed and considered the relief sought in the Motion, the Trudell
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APA, any objections to the Motion; and the arguments of counsel made, and the evidence proffered
or adduced at the Sale Hearing; and all parties in interest having been heard or having had the
opportunity to be heard regarding the Sale Transaction and the relief requested in this Order, and
due and sufficient notice of the Sale Hearing and the relief sought therein having been given under
the particular circumstances of these Chapter 11 Cases and in accordance with the Bidding
Procedures Order; and it appearing that no other or further notice need be provided; and it
appearing that the relief requested in the Motion is in the best interests of the Debtors, their estates,
their creditors, and all other parties in interest; and it appearing that the Court has jurisdiction over
this matter; and it further appearing that the legal and factual bases set forth at the Sale Hearing
and in the Motion, Declaration of John Bibb, Group Chief Executive Officer of Vyaire Medical,
Inc., in Support of Debtors’ Chapter 11 Petitions and First Day Motions [Docket No. 15]
(the “First Day Declaration”), Declaration of Michael Schlappig in Support of the Debtors’
Motion for Entry of an Order (I) Approving Bidding Procedures in Connection with the Sale of
Substantially All of the Debtors’ Assets, (II) Authorizing the Debtors to Enter into a Stalking Horse
Agreement and Provide Bid Protections, (III) Approving the Form and Manner of Notice Thereof,
(IV) Scheduling an Auction and Sale Hearing, (V) Approving Procedures for the Assumption and
Assignment of Contracts, (VI) Approving the Sale of the Debtors’ Assets Free and Clear, and
(VII) Granting Related Relief [Docket No. 158] (the “Schlappig Declaration”), and Declaration of
Charles N. Braley in Support of the Debtors’ Motion for Entry of an Order (I) Approving Bidding
Procedures in Connection with the Sale of Substantially All of the Debtors’ Assets, (II) Authorizing
the Debtors to Enter into a Stalking Horse Agreement and Provide Bid Protections, (III) Approving
the Form and Manner of Notice Thereof, (IV) Scheduling an Auction and Sale Hearing,
(V) Approving Procedures for the Assumption and Assignment of Contracts, (VI) Approving the
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Sale of the Debtors’ Assets Free and Clear, and (VII) Granting Related Relief [Docket No. 157]
(the “Braley Declaration” and, together with the First Day Declaration, the Schlappig Declaration,
and any subsequent declarations filed in support of the Sale Transaction, the “Declarations”), and
it being established that there exists just cause for the relief granted herein; and after due
deliberation thereon, it is HEREBY ORDERED THAT:3
Jurisdiction and Venue
A. This Court has jurisdiction to hear and determine the Motion pursuant to
28 U.S.C. §§ 157 and 1334, the Amended Standing Order of Reference from the United States
District Court for the District of Delaware dated as of February 29, 2012, and this matter is a core
proceeding pursuant to 28 U.S.C. § 157(b). Venue of these cases and proceedings is proper in this
District and the Court under 28 U.S.C. §§ 1408 and 1409.
Statutory Predicates
B. The statutory predicates for the relief requested in the Motion are Bankruptcy Code
sections 105, 363, and 365. Such relief is also warranted pursuant to Bankruptcy Rules 2002,
6003, 6004, 6006, 9006, 9007, 9008, and 9014, and Local Rules 2002-1, 6004-1 and 9006˗1.
Final Order
C. This Order constitutes a final and appealable order within the meaning of
28 U.S.C. § 158(a). Notwithstanding Bankruptcy Rules 6004(h) and 6006(d), and to any extent
necessary under Bankruptcy Rule 9014 and Rule 54(b) of the Federal Rules of Civil Procedure, as
made applicable by Bankruptcy Rule 7054, the Court expressly finds that there is no just reason
3 The findings and conclusions set forth herein constitute the Court’s findings of fact and conclusions of law
pursuant to Bankruptcy Rule 7052, made applicable to this proceeding pursuant to Bankruptcy Rule 9014. To
the extent any of the following findings of fact constitute conclusions of law, they are adopted as such. To the
extent any of the following conclusions of law constitute findings of fact, they are adopted as such.
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Case 24-11217-BLS Doc 401 Filed 08/21/24 Page 9 of 50
for delay in the implementation of this Order, waives any stay, and expressly directs entry of
judgment as set forth herein.
Notice of the Trudell APA, Sale Transaction,
Sale Hearing, and Bidding Procedures Order
D. On June 9, 2024 (the “Petition Date”), the Debtors commenced these chapter 11
cases (the “Chapter 11 Cases”) by filing voluntary petitions for relief under chapter 11 of the
Bankruptcy Code. Since the Petition Date, the Debtors have continued to operate and manage
their businesses as debtors in possession pursuant to Bankruptcy Code sections 1107(a) and 1108.
E. The Debtors gave due and proper notice of the proposed Sale and Sale Hearing, as
applicable, in the Notice of Bidding Procedures, Auction, and Sale Hearing [Docket No. 255]
(the “Sale Notice”), Notice of Extension of Certain Key Dates and Deadlines [Docket No. 263 ]
(the “First Extension Notice”), Second Notice of Extension of Certain Key Dates and Deadlines
[Docket No. 311] (the “Second Extension Notice”), Third Notice of Extension of Certain Key
Dates and Deadlines [Docket No. 353] (the “Third Extension Notice”), and Fourth Notice of
Extension of Certain Key Dates and Deadlines [Docket No. 394] (the “Fourth Extension Notice”
and, together with the Sale Notice, First Extension Notice, Second Extension Notice, and the Third
Extension Notice, the “Notices”). Each of the Notices constituted good, sufficient, and appropriate
notice of the Sale under the particular circumstances and no further notice need be given with
respect to the proposed Sale. As provided by the Notices, a reasonable and sufficient opportunity
to object or be heard regarding the requested relief has been afforded to all interested persons and
entities. Other parties interested in bidding on the Acquired Assets were provided, prior to and
pursuant to the Bidding Procedures Order, sufficient information to make an informed judgment
on whether to bid.
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F. The Debtors also gave due and proper notice of the potential assumption and
assignment of each executory contract or unexpired lease available to be assumed by the Debtors
and assigned to the Purchaser to each non-Debtor party under each such executory contract or
unexpired lease as reflected on the First Notice to Contract Parties of Potentially Assumed and
Assigned Executory Contracts and Unexpired Leases filed on July 11, 2024 [Docket No. 256]
(the “Potential Assumption Notice”). Such notice was good, sufficient, and appropriate under the
particular circumstances, and the counterparties to the Assumed Contracts are hereby deemed to
consent to the relief granted herein unless otherwise provided in this Order.
G. As evidenced by the affidavit of service [Docket No. 109] and certificate of
publication [Docket No. 251] previously filed with the Court, and based on the Declarations and
the representations of counsel at the Sale Hearing, and under the urgent circumstances of these
Chapter 11 Cases, due, proper, timely, adequate and sufficient notice of the Motion, the Bidding
Procedures Order, the Sale Hearing, the assumption and assignment of the assumed contracts
(the “Assumed Contracts”), the Trudell APA, this Order, and the Sale Transaction has been
provided in accordance with Bankruptcy Code sections 102(1) and 363, Bankruptcy Rules 2002,
9006, 9007, 9008, and 9014, and Local Rules 2002-1 and 6004-1. The Debtors have complied
with all obligations to provide notice of the Motion, the Bidding Procedures Order, the Sale
Hearing, the assumption and assignment of Assumed Contracts, the Trudell APA, this Order, and
the Sale Transaction as required by the Bidding Procedures Order.
H. Based on the Declarations and representations of counsel at the Sale Hearing and
prior hearing(s) in these cases, time is of the essence for the Debtors, and these cases do not require
a longer process than the one contemplated for the Sale Transactions. The sale timeline was
appropriate under the circumstances in light of, among other things, the nature of the Debtors’
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assets, their liquidity constraints, and the extensive marketing process that the Debtors have
conducted to date.
I. The aforementioned notices are good, sufficient and appropriate under the
circumstances, and no other or further notice of the Motion, the Bidding Procedures Order, the Bid
Deadline, the Sale Hearing, the assumption and assignment of the Assumed Contracts, the
Assumption and Assignment Objection Deadline, the Sale Transaction Objection Deadline, the
Post-Auction Objection Deadline (each, as defined in the Bidding Procedures Order), the Trudell
APA, this Order, or the Sale Transaction is or shall be required.
J. A reasonable opportunity to object or be heard regarding the relief requested in the
Motion and provided in this Order was afforded to all parties in interest.
Compliance with the Bidding Procedures Order
K. As demonstrated by the evidence proffered or adduced in the Declarations and at
the Sale Hearing and the representations of counsel at the Sale Hearing, the Debtors have complied
in all material respects with the Bidding Procedures Order. The Debtors and their professionals
have adequately and appropriately marketed the Acquired Assets in compliance with the Bidding
Procedures, the Bidding Procedures Order, and in accordance with the Debtors’ fiduciary duties.
Based upon the record of these proceedings and the circumstances of these Chapter 11 Cases,
creditors, other parties in interest, and prospective purchasers were afforded a reasonable and fair
opportunity to bid for the Acquired Assets.
L. The Bidding Procedures were substantively and procedurally fair to all parties and
all potential bidders and afforded notice and a full, fair, and reasonable opportunity for any person
to make a higher or otherwise better offer to purchase the Acquired Assets. The Debtors conducted
the sale process without collusion and in accordance with the Bidding Procedures. No other entity
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or group of entities has presented a higher or otherwise better offer to the Debtors to purchase the
Acquired Assets for greater economic value to the Debtors’ estates than the Purchaser.
M. The Bidding Procedures Order is incorporated herein by reference.
N. The Purchaser is the Successful Bidder (as defined in the Bidding Procedures), and
the Purchaser’s Qualified Bid is the Successful Bid (as defined in the Bidding Procedures), for the
Acquired Assets in accordance with the Bidding Procedures Order. The Debtors and the Purchaser
have complied in all respects with the Bidding Procedures Order and all other applicable orders of
the Court in negotiating and entering into the Trudell APA and the Sale Transaction and the Trudell
APA likewise comply with the Bidding Procedures Order and all other applicable orders of the
Court.
Sale is in the Best Interests of the Debtors’ Estates
O. The Trudell APA, including the form and total consideration to be realized by the
Debtors under the Trudell APA, (i) constitutes the highest and best offer received by the Debtors
for the Acquired Assets, (ii) is fair and reasonable, and (iii) is in the best interests of the Debtors,
their estates, their creditors, and all other parties in interest.
P. The Debtors’ determination, with the consent of the Required DIP Lenders, and in
consultation with the Committee, that the consideration provided by the Purchaser under the
Trudell APA constitutes the highest and best offer for the Acquired Assets is a valid and sound
exercise of the Debtors’ reasonable business judgment.
Q. The Sale Transaction must be approved and consummated promptly in order to
preserve the viability of the Debtors’ businesses as a going concern and to maximize the value of
the Debtors’ estates. Time is of the essence in consummating the Sale Transaction. Given all of
the circumstances of these Chapter 11 Cases and the adequacy and fair value of the consideration
received in exchange for the Acquired Assets (as further detailed in the Trudell APA), the proposed
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Sale Transaction constitutes a reasonable and sound exercise of the Debtors’ business judgment
and should be approved. The transactions contemplated by the Trudell APA, including, without
limitation, the Sale Transaction and the assumption and assignment of the Assumed Contracts,
neither impermissibly restructure the rights of the Debtors’ creditors nor impermissibly dictate the
terms of a chapter 11 plan for the Debtors, and therefore do not constitute a sub rosa plan.
R. The consummation of the Sale Transaction and the assumption and assignment of
the Assigned Contracts are legal, valid, and properly authorized under all applicable provisions of
the Bankruptcy Code, including, without limitation, sections 105(a), 363(b), 363(f), 363(m), and
365 of the Bankruptcy Code, and all of the applicable requirements of such sections have been
complied with in respect of the transaction.
Transition Services
S. In connection with the Sale Transaction, the Debtors have agreed to perform certain
transition services identified in the Transition Services Agreement. The Purchaser would not
consummate the Sale Transaction absent the Debtors’ agreement to perform their obligations under
the Transition Services Agreement and such performance is therefore in the best interests of the
Debtors, their estates, their creditors, and all other parties in interest.
Corporate Authority
T. Subject to entry of this Order, each Debtor (i) has full corporate power and authority
to execute and deliver the Trudell APA and all other documents contemplated thereby, including,
without limitation, the Transition Services Agreement, (ii) has all of the necessary corporate power
and authority to consummate the transactions contemplated by the Trudell APA, including,
without limitation, the Sale Transaction and the assumption and assignment of the Assumed
Contracts, (iii) has taken all corporate action necessary to authorize and approve the Trudell APA
and the consummation by the Debtors of the transactions contemplated thereby, including, without
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limitation, the Sale Transaction and the assumption and assignment of the Assumed Contracts, and
(iv) subject to entry of this Order, needs no consents or approvals, including any consents or
approvals from any non-Debtor entities, the DIP Orders, the DIP Documents, the Bidding
Procedures Order, the Bidding Procedures, the Restructuring Support Agreement, or this Order, to
consummate the transactions contemplated thereby, including, without limitation, the Sale
Transaction and the assumption and assignment of the Assumed Contracts.
U. The Trudell APA has been duly and validly executed and delivered by the Debtors
and, subject to the terms of the Trudell APA, shall constitute a valid and binding obligation of the
Debtors, enforceable against the Debtors in accordance with its terms.
Good Faith
V. The sales process engaged in by the Debtors and the Purchaser and the negotiation
of the Trudell APA, was at arm’s length, non-collusive, in good faith, and substantively and
procedurally fair to all parties in interest. None of the Debtors or the Purchaser has engaged in
any conduct that would cause or permit the Trudell APA or the Sale Transaction to be avoided, or
costs or damages to be imposed, under Bankruptcy Code section 363(n).
W. The Debtors and the Purchaser have complied, in good faith, in all respects with
the Bidding Procedures Order and the Bidding Procedures. The Debtors and their respective
management, board of directors, board of managers (or comparable governing authority),
employees, agents, and representatives, and the Purchaser and its employees, agents, advisors, and
representatives, each actively participated in the bidding process, and each acted in good faith and
without collusion or fraud of any kind. The Sale of the Acquired Assets was the subject of a
competitive sale and marketing process, and the Purchaser was designated the Successful Bidder
for the Acquired Assets in accordance with the Bidding Procedures and the Bidding Procedures
Order.
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X. The Purchaser is a good faith purchaser within the meaning of Bankruptcy Code
section 363(m) and is therefore entitled to the full protection of that provision in respect of the Sale
Transaction, each term of the Trudell APA (and any ancillary documents executed in connection
therewith) and each term of this Order, and otherwise has proceeded in good faith in all respects
in connection with this proceeding. None of the Debtors or the Purchaser has engaged in any
conduct that would prevent the application of Bankruptcy Code section 363(m). The Debtors were
free to deal with any other party interested in buying or selling some or all of the Acquired Assets
on behalf of the Debtors’ estates. The protections afforded by Bankruptcy Code section 363(m)
are integral to the Sale Transaction, and the Purchaser would not consummate the Sale Transaction
without such protections.
Y. The form and total consideration to be realized by the Debtors under the Trudell
APA constitutes fair value, fair, full, and adequate consideration, reasonably equivalent value, and
reasonable market value for the Acquired Assets.
Z. Neither the Purchaser nor any of its affiliates, officers, directors, managers,
shareholders, members, or any of their respective successors or assigns is an “insider” of any of
the Debtors, as that term is defined under Bankruptcy Code section 101(31). No common identity
of directors, managers, controlling shareholders, or members exists between the Debtors and the
Purchaser.
No Fraudulent Transfer
AA. The consideration provided by the Purchaser for the Acquired Assets pursuant to
the Trudell APA (i) is fair and reasonable, (ii) is the highest and best offer for the Acquired Assets,
and (iii) constitutes reasonably equivalent value and fair consideration under the Bankruptcy Code
and under the laws of the United States, and each state, territory, possession and the District of
Columbia.
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BB. The Trudell APA was not entered into, and none of the Debtors, including the
Purchaser, or the Purchaser has entered into the Trudell APA or proposes to consummate the Sale
Transaction, for the purpose of hindering, delaying or defrauding the Debtors’ creditors, for the
purpose of statutory and common law fraudulent conveyance and fraudulent transfer claims
whether under the Bankruptcy Code or under the laws of the United States, any state, territory,
possession thereof or the District of Columbia or any other applicable jurisdiction with laws
substantially similar to the foregoing.
Free and Clear
CC. The transfer of the Acquired Assets to the Purchaser will be legal, valid, and
effective transfers of the Acquired Assets, and will vest the Purchaser with all right, title, and
interest of the Debtors to the Acquired Assets free and clear of any and all claims, causes of action,
liens (including, without limitation, any statutory lien on real and personal property and any and
all “liens” as that term is defined and used in the Bankruptcy Code, including section 101(37)
thereof), liabilities, interests, rights, and encumbrances, including, without limitation, the
following: all mortgages, restrictions (including, without limitation, any restriction on the use,
voting rights, transfer rights, claims for receipt of income, or other exercise of any attributes of
ownership), hypothecations, charges, indentures, loan agreements, instruments, leases, licenses,
sublicenses, options, deeds of trust, security interests, equity interests, conditional sale rights or
other title retention agreements, pledges, judgments, demands, rights of first refusal, consent
rights, offsets, contract rights, rights of setoff not taken prepetition, rights of recovery,
reimbursement rights, contribution claims, indemnity rights, exoneration rights, product liability
claims, alter-ego claims, environmental rights and claims (including, without limitation, toxic tort
claims), labor rights and claims, employment rights and claims, pension rights and claims, tax
claims, regulatory violations by any governmental entity, decrees of any court or foreign or
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domestic governmental entity, charges of any kind or nature, debts arising in any way in
connection with any agreements, acts, or failures to act, reclamation claims, obligation claims,
demands, guaranties, option rights or claims, rights, contractual or other commitment rights and
claims, whether known or unknown, choate or inchoate, filed or unfiled, scheduled or unscheduled,
noticed or unnoticed, recorded or unrecorded, perfected or unperfected, allowed or disallowed,
contingent or non-contingent, liquidated or unliquidated, matured or unmatured, material or non-
material, disputed or undisputed, whether arising prior to or subsequent to the commencement of
the Chapter 11 Cases and whether imposed by agreement, understanding, law, equity or otherwise,
including claims otherwise arising under any theory, law, or doctrine of successor or transferee
liability or theories of liability related to acting in concert or active participation with the Debtors
or related theories (all of the foregoing, including, without limitation, Encumbrances and
Liabilities, but excluding Assumed Liabilities (each, as defined in the Trudell APA), are
collectively referred to in this Order as “Claims” and, as used in this Order, the term “Claims”
includes, without limitation, any and all “claims” as that term is defined and used in the Bankruptcy
Code, including section 101(5) thereof); provided, however, that such transfer shall not be free and
clear of any Permitted Encumbrances and Assumed Liabilities.
DD. The Debtors may transfer the Acquired Assets free and clear of all Claims, Interests,
or Encumbrances (other than any Permitted Encumbrances and Assumed Liabilities), including,
without limitation, rights or claims based on any successor, mere continuation, or transferee
liability, or theories of liability related to actions in concert or active participation with the Debtors,
because, in each case, one or more of the standards set forth in Bankruptcy Code section 363(f)(1)-
(5) has been satisfied. Those (a) holders of Claims or Interests and (b) non-Debtor parties to the
Assumed Contracts who did not object or withdrew their objections to the Motion, are deemed to
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have consented pursuant to Bankruptcy Code section 363(f)(2). Those (i) holders of Claims or
Interests and (ii) non-Debtor parties to the Assumed Contracts who did object fall within one or
more of the other subsections of Bankruptcy Code section 363(f).
EE. Subject to the terms set forth in this Order, the DIP Orders, the DIP Documents, the
Bidding Procedures Order, the Bidding Procedures, and the Restructuring Support Agreement,
including, but not limited to, the application of the proceeds of the Sale immediately upon the
Closing of the Sale Transaction as further set forth herein, each of the DIP Secured Parties (as
defined in the DIP Orders) has consented to the sale of the Acquired Assets to the Purchaser
pursuant to the Trudell APA free and clear of any Claims, Interests, or Encumbrances (other than
the Permitted Encumbrances and Assumed Liabilities) of the DIP Secured Parties against the
Acquired Assets (the “DIP Liens”), and any reference herein to Claims, Interests, or
Encumbrances shall include the DIP Liens.
FF. The Debtors have, to the extent necessary, satisfied the requirements of
section 363(b)(1) of the Bankruptcy Code.
GG. The Purchaser would not have entered into the Trudell APA and would not
consummate the transactions contemplated thereby, including, without limitation, the Sale
Transaction, (i) if the transfer of the Acquired Assets were not free and clear of all Claims,
Interests, and Encumbrances (other than any Permitted Encumbrances and Assumed Liabilities),
(ii) if the Purchaser would, or in the future could, be liable for or subject to any such Claims,
Interests, and Encumbrances (other than any Permitted Encumbrances and Assumed Liabilities),
or (iii) without the assumption and assignment of the Assumed Contracts. The Purchaser will not
consummate the transactions contemplated by the Trudell APA, including, without limitation, the
Sale Transaction, unless the Court expressly orders that none of the Purchaser, its respective
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affiliates, its respective present or contemplated members or shareholders, or the Acquired Assets
will have any liability whatsoever with respect to, or be required to satisfy in any manner, whether
at law or equity, or by payment, setoff, or otherwise, directly or indirectly, any Claims, Interests,
and Encumbrances.
HH. Not transferring the Acquired Assets free and clear of all Claims, Interests, and
Encumbrances (other than any Permitted Encumbrances and Assumed Liabilities) would adversely
impact the Debtors’ efforts to maximize the value of their estates, and the transfer of the Acquired
Assets other than pursuant to a transfer that is free and clear of all Claims, Interests, and
Encumbrances (other than any Permitted Encumbrances and Assumed Liabilities) of any kind or
nature whatsoever would be of substantially less benefit to the Debtors’ estates.
II. Neither the Purchaser nor any of its affiliates are a mere continuation of the Debtors
or their estates, there is no continuity or common identity between the Purchaser, any of its
affiliates and any of the Debtors, and there is no continuity of enterprise between the Purchaser,
any of its affiliates and any of the Debtors. Neither the Purchaser nor any of its affiliates are
holding themselves out to the public as a continuation of any of the Debtors. Neither the Purchaser
nor any of its affiliates are a successor to, or assignee or transferee of, any of the Debtors or their
estates, and none of the transactions contemplated by the Trudell APA, including, without
limitation, the Sale Transaction amounts to a consolidation, merger, or de facto merger of the
Purchaser or any of its affiliates with or into any of the Debtors.
JJ. Without limiting the generality of the foregoing, and other than as may be set forth
in the Trudell APA, none of the Purchaser, its affiliates, its and their respective present or
contemplated members or shareholders, or the Acquired Assets will have any liability whatsoever
with respect to, or be required to satisfy in any manner, whether at law or equity, or by payment,
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setoff, or otherwise, directly or indirectly, any Claims, Interests, or Encumbrances relating to any
U.S. federal, state or local income tax liabilities, that the Debtors may incur in connection with
consummation of the transactions contemplated by the Trudell APA, including, without limitation,
the Sale Transaction or that the Debtors have otherwise incurred prior to the consummation of the
transactions contemplated by the Trudell APA.
KK. Nothing herein is intended to release or discharge the Debtors and/or the Purchaser
from their respective obligations consistent with the terms of this Order, the DIP Orders, the DIP
Documents, the Bidding Procedures Order, the Bidding Procedures, and the Restructuring Support
Agreement, including, but not limited to the obligation of the Debtors and/or the Purchaser to remit
to the DIP Lenders the proceeds of the Sale, consistent with the DIP Paydown Amount (as defined
below), immediately upon the Closing of the Sale Transaction approved in this Order, as further
set forth herein.
Validity of Transfer
LL. The consummation of the transactions contemplated by the Trudell APA, including,
without limitation, the Sale Transaction and the assumption and assignment of Assumed Contracts
is legal, valid and properly authorized under all applicable provisions of the Bankruptcy Code,
including, without limitation, Bankruptcy Code sections 105(a), 363(b), 363(f), and 363(m), and
all of the applicable requirements of such sections have been complied with in respect of the
transactions contemplated under the Trudell APA.
MM. The Acquired Assets constitute property of the Debtors’ estates and good title to
the Acquired Assets of the Debtors is vested in the Debtors’ estates within the meaning of
Bankruptcy Code section 541(a). The Debtors are the sole and lawful owners of the Acquired
Assets, and no other person has any ownership right, title, or interest therein.
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NN. The sale, conveyance, assignment, and transfer of any personally identifiable
information pursuant to the terms of the Trudell APA and this Order complies with the terms of
the Debtors’ policy regarding the transfer of such personally identifiable information as of the
Petition Date, and, as a result, consummation of the Sale Transaction is permitted pursuant to
Bankruptcy Code section 363(b)(1)(A). Accordingly, appointment of a consumer privacy
ombudsman in accordance with Bankruptcy Code sections 363(b)(1) or 332 is not required with
respect to the Sale Transaction.
Compelling Circumstances for an Immediate Sale
OO. To maximize the value of the Acquired Assets and preserve the viability of the
Acquired Assets, and as set forth in the Declarations due to the urgent circumstances of the
Debtors, it is essential that the transactions contemplated by the Trudell APA, including, without
limitation, the Sale Transaction occur within the time constraints set forth in the Trudell APA.
Time is of the essence in consummating the transactions contemplated by the Trudell APA,
including, without limitation, the Sale Transaction. Accordingly, there is cause to waive the stays
contemplated by Bankruptcy Rules 6004 and 6006.
PP. The Debtors have demonstrated compelling circumstances and a good, sufficient,
and sound business purpose and justification for the immediate approval and consummation of the
transactions contemplated by the Trudell APA, including, without limitation, the Sale Transaction
prior to, and outside of, a chapter 11 plan because, among other things, the Debtors’ estates will
suffer irreparable harm if the relief requested in the Motion is not granted on an expedited basis
and the immediate consummation of the Sale Transaction is necessary and appropriate to maximize
the value of the Debtors’ estates. The transactions contemplated by the Trudell APA, including,
without limitation, the Sale Transaction, neither impermissibly restructures the rights of the
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Debtors’ creditors nor impermissibly dictates the terms of a chapter 11 plan for the Debtors, and
therefore, do not constitute a sub rosa plan.
Assumption and Assignment of the Assumed Contracts
QQ. Except as otherwise expressly provided in the Trudell APA or this Order, upon the
Closing Date, pursuant to Bankruptcy Code sections 105(a), 363, and 365, the Debtors are
authorized to (a) assume each of the Assumed Contracts and assign the Assumed Contracts, set
forth in Exhibit 2 (the “Assumed Contracts Exhibit”) attached hereto, which may be subsequently
modified at any time prior to the date that is two (2) business days prior to the Closing Date and
upon Purchaser’s delivery of written notice to the Debtors, to add or remove certain executory
contracts or unexpired leases, pursuant to the terms of the Trudell APA, to the Purchaser free and
clear of all Claims, Interests, and Encumbrances (other than any Permitted Encumbrances and
Assumed Liabilities) and (b) execute and deliver to the Purchaser such documents or other
instruments as may be reasonably requested by Purchaser to assign and transfer the Assumed
Contracts to the Purchaser.
RR. The Cure Amounts (as defined in the Trudell APA) listed on the Assumption Notice
and Assumed Contracts Exhibit are the sole amounts necessary to be paid upon assumption of the
Assumed Contracts under Bankruptcy Code sections 365(b)(1)(A) and (B) and 365(f)(2)(A). All
Cure Amounts, if any, shall be satisfied by the Purchaser in accordance with the terms of the
Trudell APA. Upon the satisfaction of the Cure Amounts, if any, by the Purchaser or Debtors, as
applicable, the Assumed Contracts shall remain in full force and effect, and no default shall exist
under the Assumed Contracts nor shall there exist any event or condition which, with the passage
of time or giving of notice, or both, would constitute such a default. The Cure Amounts shall not
be subject to further dispute or audit, including, without limitation, any based on performance prior
to the Closing Date. After the payment of the Cure Amounts by the Purchaser or Debtors, as
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applicable, none of the Debtors or the Purchaser shall have any further liabilities to the
counterparties to the Assumed Contracts other than the Purchaser’s obligations under the Assumed
Contracts that accrue and become due and payable on or after the Closing Date.
SS. In the event of a continuing dispute as of, or after, the Closing Date regarding
assumption and assignment, transitional use, or Cure Amount of any executory contract or
unexpired lease proposed to be an Assumed Contract, the assumption and assignment of such
executory contract or unexpired lease, and payment of any applicable Cure Amounts, shall be
made following the entry of an order of the Court resolving any such dispute (or upon the
consensual resolution of such dispute as may be agreed by the Purchaser and such counterparty
and, solely with respect to disputes regarding Cure Amounts, the Debtors). For the avoidance of
doubt, all rights of parties in interest with Cure Amount disputes who have filed objections at
Docket Nos. 264, 301, and 314 are expressly reserved as to such Cure Amounts. For the avoidance
of doubt, if the Purchaser determines, in its sole discretion, that the cure dispute is too material,
the Purchaser may delay the assignment of such contract or lease until the resolution of the cure
amount; provided that, in such case, if any, the Purchaser shall be responsible for any and all costs
arising as of or after the Closing Date under such contract or lease during the pendency of the
dispute. Upon an election of the Purchaser to designate an executory contract or unexpired lease
as an Excluded Contract (as defined in the Trudell APA), the Purchaser shall have no liability
whatsoever to the counterparty to such executory contract or unexpired lease or the Debtors.
TT. Oracle America, Inc. reserves all rights as to payments and costs accruing prior to
such an Excluded Contract designation.
UU. To the extent any non-Debtor counterparty to an Assumed Contract has failed to
timely object to a proposed Cure Amount, such Cure Amount has been and shall be deemed to be
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finally determined as the Cure Amount listed on the Assumption Notice and Assumed Contracts
Exhibit and any such non-Debtor counterparty shall be prohibited from challenging, objecting to,
or denying the validity and finality of the Cure Amount at any time. The non-Debtor counterparty
to an Assumed Contract is forever bound by the applicable Cure Amount and, upon payment of
the Cure Amounts as provided herein and, in the Trudell APA, is hereby enjoined from taking any
action against Purchaser with respect to any claim for cure under the Assumed Contract.
VV. Any provisions in any Assumed Contract that prohibit or condition the assignment
of such Assumed Contract or allow the party to such Assumed Contract to terminate, recapture,
impose any penalty, condition on renewal or extension or modify any term or condition upon
assignment of such Assumed Contract, constitute unenforceable anti-assignment provisions that
are void and of no force and effect to the extent provided in the Bankruptcy Code or other
applicable law.
WW. Any party that may have had the right to consent to the assignment of an Assumed
Contract is deemed to have consented to such assignment, including for purposes of Bankruptcy
Code sections 365(c)(1)(B) and 365(e)(2)(A)(ii) and otherwise if such party failed to timely object
to the assumption and assignment of such Assumed Contract.
XX. Each Assumed Contract constitutes an executory contract or unexpired lease under
the Bankruptcy Code and all requirements and conditions under Bankruptcy Code sections 363
and 365 for the assumption by the Debtors and assignment to the Purchaser of the Assumed
Contracts have been, or will be, satisfied. Upon the Purchaser’s assumption of the Assumed
Contracts in accordance with the terms hereof, in accordance with Bankruptcy Code sections 363
and 365, (a) the Purchaser shall be fully and irrevocably vested with all rights, title and interest of
the Debtors under the Assumed Contracts, (b) the Purchaser shall be deemed to be substituted for
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the Debtors as a party to the applicable Assumed Contracts, and (c) the Debtors shall be relieved,
pursuant to Bankruptcy Code section 365(k), from any further liability under the Assumed
Contracts.
YY. The Purchaser has demonstrated adequate assurance of future performance under
the relevant Assumed Contracts within the meaning of Bankruptcy Code sections 365(b)(1)(C)
and 365(f)(2)(B).
ZZ. There shall be no rent accelerations, assignment fees, increases or any other fees
charged to the Debtors or the Purchaser as a result of the assumption, assignment and sale of the
Assumed Contracts. Subject to the terms of the Trudell APA, the validity of the transactions
contemplated by the Trudell APA, including, without limitation, the Sale Transaction and the
assumption and assignment of the Assumed Contracts, shall not be affected by any dispute between
any of the Debtors or their affiliates, and another party to an Assumed Contract regarding the
payment of any amount. Upon assignment to the Purchaser, the Assumed Contracts shall be valid
and binding, in full force and effect and enforceable by the Purchaser in accordance with their
respective terms.
AAA. Pursuant to Bankruptcy Code sections 105(a), 363, and 365, all counterparties to
the Assumed Contracts are forever barred and permanently enjoined from raising or asserting
against the Debtors or the Purchaser any assignment fee, default, breach or claim of pecuniary loss,
or condition to assignment, arising under or related to the Assumed Contracts existing as of and
including the Closing Date under the Trudell APA or arising by reason of the consummation of
transactions contemplated by the Trudell APA, including, without limitation, the Sale Transaction
and the assumption and assignment of the Assumed Contracts.
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BBB. All counterparties to the Assumed Contracts shall cooperate and expeditiously
execute and deliver, upon the reasonable requests of the Purchaser, and shall not charge the
Debtors or the Purchaser for, any instruments, applications, consents or other documents which
may be required or requested by any public or quasi-public authority or other party or entity to
effectuate the applicable transfers in connection with the Sale of the Acquired Assets.
Application of Proceeds
CCC. The schedule of the holdback of Sale proceeds, as set forth in Exhibit 4
(the “Holdback Schedule”) attached hereto, which the Debtors may modify at any time with the
consent of the Required DIP Lenders, is hereby approved and the Debtors are hereby authorized
to take such actions as are reasonably necessary to implement and effectuate the Holdback
Schedule. Upon entry of this Order, the Debtors shall use commercially reasonable efforts to
outperform the Holdback Schedule in consultation with the Required DIP Lenders.
DDD. Notwithstanding anything to the contrary contained herein, in any DIP Document,
or in any document related to the Sale, the Acquired Assets constitute Cash Collateral and DIP
Collateral and are subject to the Adequate Protection Liens, Prepetition Liens, and DIP Liens (each
as defined in the DIP Orders). All consideration and proceeds arising from the Sale shall be applied
in accordance with the terms of this Order, the DIP Orders, the DIP Documents, the Bidding
Procedures Order, the Bidding Procedures, the Restructuring Support Agreement, and the Trudell
APA.
EEE. Immediately upon the Closing of the Sale Transaction, the Debtors shall utilize the
cash proceeds from the Sale Transaction to (i) irrevocably and indefeasibly remit to the DIP Agent
cash proceeds of the Sale Transaction in an amount up to $[●] in partial satisfaction of the DIP
Claims on a dollar-for-dollar basis (collectively, the “DIP Paydown Amount”) and (ii) fund a
reserve in an amount up to $[●] (the “Holdback Reserve”), consistent with the Holdback Schedule.
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The DIP Paydown Amount pursuant to this paragraph complies with the requirements of the DIP
Orders and the DIP Documents and is supported by good, sufficient, and sound business reasons.
Funds in the Holdback Reserve shall be available for the use by the Debtors in accordance with
the Holdback Schedule.
FFF. Notwithstanding anything to the contrary herein, in the Trudell APA, or in the DIP
Orders, the amounts held in the Carve Out Reserves (as defined in the Final DIP Order) shall
constitute Excluded Cash (as defined in the Trudell APA) and, following entry of this Order and
the Court’s order approving the sale of the Debtors’ Ventilation Assets and upon the Closing Date
of the Sale Transaction and the closing date of the sale of the Debtors’ Ventilation Assets, such
amounts shall be transferred into an account to be maintained in trust by an escrow agent solely
for the benefit of the Professional Persons (as defined in the DIP Orders) of the Debtors and the
Committee (the “Case Professionals”), in each case, retained in these cases under section 327, 328
and/or 1102 of the Bankruptcy Code (the “Professional Fees Account” and, such cash,
the “Professional Fees Cash”) to satisfy their Professional Fees and Expenses (as defined in the
DIP Orders). The DIP Agent and DIP Lenders (both as defined in the DIP Orders) shall be deemed
to have satisfied their obligations with respect to the Carve Out (as defined in the DIP Orders) and
the Carve Out Reserves as set forth in the DIP Orders upon such transfer. Except as set forth in
this paragraph, nothing in this Order shall impair, modify, or otherwise affect the Carve Out. The
Debtors are authorized, without further notice or relief from this Court, to enter into an escrow
agreement which shall govern the distributions from the Professional Fees Account (the “Escrow
Agreement”), take any and all actions that are necessary or appropriate in the exercise of their
business judgment to implement the terms of the Escrow Agreement, including engaging
applicable escrow agents and to make or authorize the payments contemplated in connection
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therewith. Professional Fees Cash may be released and applied in accordance with the terms of
the Escrow Agreement, upon Court order approving the payment of any fees and expenses of any
Case Professionals (including pursuant to the Interim Compensation Order, any Final Fee Orders,
or any order of the Court allowing professional fees and expenses on an interim basis or a final
basis); provided, that, to the extent there are any unused Professional Fees Cash in the Professional
Fees Account after the satisfaction of all such claims of Case Professionals, such cash shall be
returned to the DIP Agent.
GGG. The Debtors are authorized and directed to distribute all consideration and proceeds
arising from the Sale consistent with this Order, including, without limitation, the Holdback
Reserve, and the DIP Paydown Amount, each as provided in paragraph EEE. This Order shall not
in any way waive any remaining DIP Claims in these Chapter 11 Cases, including upon the
payment of the (i) claims and amounts specified in the Holdback Schedule and/or (ii) DIP
Paydown Amount from the proceeds of the Sale upon Closing of the Sale Transaction. After
payment of the (i) DIP Paydown Amount and (ii) claims and amounts specified in the Holdback
Schedule, any remaining DIP Claims shall be the senior most claims to recover under any Debtor
plan or other wind-down or similar arrangement. All of the Debtors’ remaining cash after Closing
of the Sale Transaction and funding of the Holdback Schedule shall be paid to the DIP Lenders on
account of the DIP Claims and the Debtors are authorized and directed to distribute all such cash
on account of any remaining DIP Claims; provided that the DIP Claims remain subject to the Carve
Out (as defined in the DIP Orders) and the Carve Out Reserves shall be escrowed upon the Closing
of the Sale Transaction as set forth in this Order. The Debtors further agree that, as consideration
for the consent of the Required DIP Lenders related to the Sale as required under the DIP
Documents, Bidding Procedures Order, and Bidding Procedures, the principal amount of the New
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Money Commitments (as defined in the DIP Orders) shall be reduced from $45,000,000 to
$[40,000,000] and, upon entry of this Order, the Escrow Agent is authorized and directed to release
$[5,000,000] from the Escrow Account to the DIP Agent for irrevocable and indefeasible
repayment to the DIP Lenders; provided, however, notwithstanding anything to the contrary in this
Order or the DIP Orders, the Debtors acknowledge and agree that any cash or other amounts in the
Escrow Account are not property of the Debtors’ Estates and the foregoing authority is merely
provided out of an abundance of caution.
HHH. The legal and factual bases set forth in the Motion, and in the Declarations filed in
support thereof, and presented at the Sale Hearing establish just cause for the findings made and
relief granted herein.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED THAT:
General Provisions
1. The Motion is granted as provided herein, and entry into and performance under,
and in respect of, the Trudell APA attached hereto as Exhibit 1 and the consummation of the
transactions contemplated thereby, including, without limitation, the Sale Transaction, is
authorized and approved.
2. Entry into and performance under, and in respect of, the consummation of the
transactions contemplated, including entry into and performance under a Transition Services
Agreement (as defined in the Trudell APA), thereby is authorized and approved; provided that the
Debtors’ entry into such Transition Services Agreement or any similar arrangement with the
Purchaser shall be at least cost neutral or better to the Debtors’ estates; provided further that, any
costs and expenses related to such Transition Services Agreement, regardless of whether such
Transition Services Agreement is at least cost neutral or better to the Debtors’ estates, shall in no
way affect the DIP Paydown Amount or compromise, reduce, or prime any remaining DIP Claims
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after the satisfaction of the DIP Paydown Amount and the DIP Lenders shall not be obligated to
fund any amount beyond the amount funded into the Holdback Reserve.
3. Any objections and responses to the Motion or the relief requested therein that have
not been withdrawn, waived, settled, or resolved, and all reservations of rights included in such
objections and responses, are overruled on the merits and denied with prejudice; provided that the
foregoing shall not limit rights reserved pursuant to paragraphs RR, SS, 30, and 31 hereof. All
other persons and entities given notice of the Motion that failed to timely object thereto are deemed
to consent to the relief granted herein, including for purposes of Bankruptcy Code
sections 363(f)(2), 365(c)(1), and 365(e)(2).
Approval of the Trudell APA
4. The Trudell APA, all ancillary documents, including, without limitation, the
Transition Services Agreement, the transactions contemplated thereby, including, without
limitation, the Sale Transaction and all the terms and conditions thereof, and the transaction steps
memorandum set forth in Exhibit 3 attached hereto (as may be supplemented, amended, or
modified with the consent of the Purchaser, the “Transaction Steps Memorandum”) including with
respect to setoff rights and assignments for all intercompany claims and obligations, and the
assumption and assignment of the Assumed Contracts (but subject to the Purchaser’s rights with
respect thereto pursuant to the Trudell APA) and all the terms and conditions thereof, the DIP
Paydown Amount, and any other steps necessary to effectuate the Sale Transaction, are approved.
The failure specifically to include any particular provision of the Trudell APA in this Order shall
not diminish or impair the effectiveness of such provision, and the Court orders that the Trudell
APA be authorized and approved in its entirety.
5. The Debtors and their respective officers, employees, and agents are authorized and
directed to take any and all actions necessary, appropriate, or requested by the Purchaser to
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perform, consummate, implement, and close the Sale Transaction and the DIP Paydown Amount,
including, without limitation, (a) the sale to the Purchaser of all Acquired Assets, in accordance
with the terms and conditions set forth in the Trudell APA and this Order, (b) executing,
acknowledging, and delivering such deeds, assignments, conveyances, and other assurance,
documents, and instruments of transfer, and (c) taking any action for purposes of assigning,
transferring, granting, conveying, and confirming to the Purchaser, or reducing to possession, the
Acquired Assets, and (d) any and all other steps included in the Transaction Steps Memorandum,
all without further order of the Court. The Debtors are further authorized to pay, without further
order of the Court, whether before, at, or after the Closing Date, any expenses or costs, if any, that
are required to be paid by the Debtors under the Trudell APA, this Order, the DIP Orders, the DIP
Documents, the Bidding Procedures Order, the Bidding Procedures, and the Restructuring Support
Agreement in order to consummate the Sale Transaction or perform their obligations under the
Trudell APA, including, for the avoidance of doubt, payment of the DIP Paydown Amount
immediately, irrevocably, and indefeasibly upon Closing of the Sale Transaction.
6. All persons and entities, including, without limitation, the Debtors, the Debtors’
estates, all debt security holders, equity security holders, governmental tax and regulatory
authorities, lenders, customers, vendors, employees, former employees, litigation claimants,
trustees, former employees, trade creditors, and any other creditors (or agent of any of the
foregoing) who may or do hold Claims, Interests, or Encumbrances (whether legal or equitable,
secured or unsecured, matured or unmatured, contingent or noncontingent, senior or subordinated)
against the Debtors or the Acquired Assets, arising under or out of, in connection with, or in any
way relating to, the Debtors, the Acquired Assets, the operation or ownership of the Acquired
Assets by the Debtors prior to the Closing Date, or the Sale Transaction, are hereby prohibited,
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forever barred, estopped, and permanently enjoined from asserting or pursuing such Claims against
the Purchaser, its affiliates, successors, assigns, its property or the Acquired Assets, including,
without limitation, taking any of the following actions with respect to any Claims, Interests, or
Encumbrances: (a) commencing or continuing in any manner any action, whether at law or in
equity, in any judicial, administrative, arbitral, or any other proceeding, against the Purchaser, its
affiliates, successors, assigns, assets (including the Acquired Assets), and/or properties;
(b) enforcing, attaching, collecting, or recovering in any manner any judgment, award, decree, or
order against the Purchaser, its affiliates, successors, assigns, assets (including the Acquired
Assets), and/or properties; (c) creating, perfecting, or enforcing any Claim against the Purchaser,
its affiliates, any of their respective successors, assigns, assets (including the Acquired Assets),
and/or properties; (d) asserting a Claim as a setoff that was not taken prepetition, or right of
subrogation of any kind against any obligation due against the Purchaser, its affiliates, or any of
their respective successors or assigns; or (e) commencing or continuing any action in any manner
or place that does not comply, or is inconsistent, with the provisions of this Order, the Trudell
APA, or the agreements or actions contemplated or taken in respect thereof, including the Debtors’
ability to transfer the Acquired Assets to the Purchaser in accordance with the terms of this Order
and the Trudell APA. No such Person shall assert or pursue against the Purchaser or its affiliates,
successors or assigns any such Claim.
7. The sale of the Acquired Assets to the Purchaser under the Trudell APA constitutes
a transfer for reasonably equivalent value and fair consideration under the Bankruptcy Code and
laws of all applicable jurisdictions, including, without limitation, the laws of each jurisdiction in
which the Acquired Assets are located, and the sale of the Acquired Assets to the Purchaser may
not be avoided under any statutory or common law fraudulent conveyance and fraudulent transfer
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theories whether under the Bankruptcy Code or under the laws of the United States, any state,
territory, possession thereof or the District of Columbia or any other applicable jurisdiction with
laws substantially similar to the foregoing.
Good Faith Sale
8. The Trudell APA has been negotiated and executed, and the transactions
contemplated thereby, including, without limitation, the Sale Transaction and the assumption and
assignment of the Assumed Contracts, are and have been undertaken, by Debtors and their
respective representatives without collusion and in “good faith,” as that term is defined in
Bankruptcy Code section 363(m). Accordingly, the reversal or modification on appeal of the
authorization provided herein to consummate the Sale Transaction shall not affect the validity of
the Sale Transaction or any term of the Trudell APA and shall not permit the unwinding of the
Sale Transaction, including the DIP Paydown Amount. The Purchaser is a good faith purchaser
within the meaning of Bankruptcy Code section 363(m) and, as such, is entitled to the full
protections of Bankruptcy Code section 363(m).
9. None of the Debtors or the Purchaser has engaged in any conduct that would cause
or permit the Trudell APA or the transactions contemplated thereby, including, without limitation,
the Sale Transaction and the assumption and assignment of the Assumed Contracts, to be avoided
or costs or damages to be imposed, under Bankruptcy Code section 363(n). The consideration
provided by the Purchaser for the Acquired Assets under the Trudell APA is fair and reasonable,
and the Sale Transaction may not be avoided under Bankruptcy Code section 363(n).
Transfer of the Acquired Assets Free and Clear
10. Pursuant to Bankruptcy Code sections 105(a) and 363(f), the Acquired Assets shall
be sold free and clear of all Claims, Interests, or Encumbrances, with all such Claims, Interests,
and Encumbrances (other than any Permitted Encumbrances and Assumed Liabilities), including,
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for the avoidance of doubt, any outstanding prepetition and postpetition liens and encumbrances
securing the DIP Obligations, the Prepetition Obligations and any Adequate Protection
Superpriority Claims, to attach to the proceeds of the Sale Transaction to be received by the
Debtors with the same validity, force, priority, and effect, which they now have as against the
Acquired Assets, subject to any claims and defenses the Debtors may possess with respect thereto;
provided, however, that the proceeds of the Sale Transaction shall be applied to satisfy the DIP
Paydown Amount immediately, irrevocably, and indefeasibly upon the Closing of the Sale
Transaction in accordance with this Order.
11. At Closing, all of the Debtors’ right, title, and interest in and to, and possession of,
the Acquired Assets shall be immediately vested in the Purchaser pursuant to Bankruptcy Code
sections 105(a), 363(b), and 363(f) free and clear of any and all Claims, Interests, and
Encumbrances (other than any Permitted Encumbrances and Assumed Liabilities). Such transfer
of Acquired Assets shall constitute a legal, valid, binding, and effective transfer of, and shall vest
the Purchaser with good and marketable title to, the Acquired Assets. All persons or entities,
presently or on or after the Closing Date, in possession of some or all of the Acquired Assets are
directed to surrender possession of the Acquired Assets to the Purchaser or its designees on the
Closing Date or at such time thereafter as the Purchaser may request.
12. This Order is and shall be binding upon and govern the acts of all entities, including,
without limitation, all filing agents, filing officers, title agents, title companies, recorders of
mortgages, recorders of deeds, registrars of deeds, registrars of patents, trademarks, domain names
or other intellectual property, governmental entities, administrative agencies, governmental
departments, secretaries of state, federal and local officials, and all other persons and entities who
may be required by operation of law, the duties of their office or contract, to accept, file, register,
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or otherwise record or release any documents or instruments; and each of the foregoing persons
and entities is hereby authorized to accept for filing any and all of the documents and instruments
necessary and appropriate to consummate the Sale Transaction contemplated by the Trudell APA.
The Acquired Assets are sold free and clear of any reclamation rights.
13. Except as otherwise expressly provided in the Trudell APA or this Order, all
persons and entities (and their respective successors and assigns), including, but not limited to, all
debt security holders, equity security holders, affiliates, foreign, federal, state and local
governmental, tax and regulatory authorities, governmental entities, lenders, secured parties,
customers, vendors, employees, trade creditors, litigation claimants, and other creditors holding
Claims, Interests, or Encumbrances against the Debtors or the Acquired Assets arising under or
out of, in connection with, or in any way relating to, the Debtors, their estates, the Debtors’
predecessors or affiliates, the Acquired Assets, the ownership, sale, use, possession, or operation
of the Acquired Assets prior to Closing or, if later, the transfer of the Acquired Assets to the
Purchaser, are hereby forever barred, estopped, and permanently enjoined from asserting or
prosecuting any cause of action or any process or other act or seeking to collect, offset, or recover
on account of any Claims, Interests, or Encumbrances against the Purchaser, its predecessors,
successors or assigns, its property, or the Acquired Assets, other than Permitted Encumbrances
and Assumed Liabilities. Following the Closing, except as expressly provided in the Trudell APA
or this Order, no holder of any Claim shall interfere with the Purchaser’s title to or use and
enjoyment of the Acquired Assets based on or related to any such Claim or based on any action or
omission of the Debtors, including any action or omission the Debtors may take in the Chapter 11
Cases.
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14. The Debtors are authorized and directed to execute such documents as may be
necessary to release any Claims, Interests, or Encumbrances (other than Permitted Encumbrances
and Assumed Liabilities) of any kind against the Acquired Assets as such Claims, Interests, or
Encumbrances (other than Permitted Encumbrances and Assumed Liabilities) may have been
recorded or may otherwise exist. If any person or entity that has filed financing statements, lis
pendens, or other documents or agreements evidencing Claims, Interests, or Encumbrances (other
than Permitted Encumbrances and Assumed Liabilities) against or in the Acquired Assets shall not
have delivered to the Debtors prior to the Closing of the Sale Transaction, in proper form for filing
and executed by the appropriate parties, termination statements, instruments of satisfaction,
releases of all Claims, Interests, or Encumbrances that the person or entity has with respect to the
Acquired Assets, (a) the Debtors are hereby 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, (b) the Purchaser is hereby authorized to file, register, or otherwise
record a certified copy of this Order, which, once filed, registered or otherwise recorded, shall
constitute conclusive evidence of the release of all such Claims, Interests, or Encumbrances (other
than Permitted Encumbrances and Assumed Liabilities) against the Purchaser and the applicable
Acquired Assets, (c) the holders of any Claims, Interests, or Encumbrances are authorized and
directed, if requested by Debtors or Purchaser, to execute such documents and take all other actions
as may be necessary to terminate, discharge, or release their Claims, Interests, or Encumbrances
(other than Permitted Encumbrances and Assumed Liabilities) in the Acquired Assets, and (d) the
Purchaser may seek in the Court or any other court to compel appropriate parties to execute
termination statements, instruments of satisfaction, and releases of all such Claims, Interests, or
Encumbrances (other than Permitted Encumbrances and Assumed Liabilities) with respect to the
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Acquired Assets. This Order is deemed to be in recordable form sufficient to be placed in the
filing or recording system of each and every federal, state, or local government agency, department
or office, and such agencies, departments, and offices are authorized to accept this Order for filing
or recording. Notwithstanding the foregoing, the provisions of this Order authorizing the sale and
assignment of the Acquired Assets free and clear of Claims, Interests, and Encumbrances (other
than any Permitted Encumbrances and Assumed Liabilities) shall be self-executing, and none of
the Debtors or the Purchaser shall be required to execute or file releases, termination statements,
assignments, consents, or other instruments in order to effectuate, consummate, and implement the
provisions of this Order.
15. To the maximum extent permitted under applicable law, the Purchaser shall be
authorized, as of the Closing Date, to operate under any license, permit, registration, and
governmental authorization or approval of the Debtors with respect to the Acquired Assets, and
all such licenses, permits, registrations, and governmental authorizations and approvals are
deemed to have been, and hereby are, directed to be transferred to the Purchaser with respect to
the Acquired Assets as of the Closing Date.
16. If, after the Closing Date, any licensee of any of the Acquired Assets (including
pursuant to any contract that may have been previously rejected by the Debtors) is required, by
agreement, contract or applicable law, to make royalty or similar payments to the Debtors arising
after the Closing Date on account of any Acquired Asset, such licensee shall instead make any
such payments to the Purchaser directly.
17. No governmental unit (as defined in Bankruptcy Code section 101(27)) or any
representative thereof may deny, revoke, suspend, or refuse to renew any permit, license, or similar
grant relating to the operation of the Acquired Assets on account of the filing or pendency of the
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Chapter 11 Cases or the consummation of the Sale Transaction to the extent that any such action
by a governmental unit or any representative thereof would violate Bankruptcy Code section 525.
No Successor or Transferee Liability
18. Upon the Closing Date, except as provided in the Trudell APA, the entry of this
Order and approval of the Trudell APA shall mean that neither the Purchaser nor its affiliates,
successors, or assigns, as a result of any action taken in connection with the Trudell APA, the
consummation of the transactions contemplated by the Trudell APA, including, without limitation,
the Sale Transaction, or the transfer or operation of the Acquired Assets, shall not be, nor be
deemed to: (a) be a legal successor or successor employer to the Debtors (including with respect
to any health or benefit plans), or otherwise be deemed a successor to the Debtors, and shall instead
be, and be deemed to be, a new employer with respect to all federal or state unemployment laws,
including any unemployment compensation or tax laws, or any other similar federal or state laws;
(b) have, de facto, or otherwise, merged or consolidated with or into the Debtors; or (c) be an alter
ego or a mere continuation or substantial continuation of the Debtors or the enterprise(s) of the
Debtors or otherwise be deemed to be acting in concert or active participation with the Debtors,
including, in the case of each of (a)-(c), without limitation, (x) within the meaning of any foreign,
federal, state or local revenue law, pension law, the Employee Retirement Income Security Act,
the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), the WARN Act (29 U.S.C.
§§ 2101 et seq.) (“WARN”), Comprehensive Environmental Response Compensation and
Liability Act (“CERCLA”), the Fair Labor Standard Act, Title VII of the Civil Rights Act of 1964
(as amended), the Age Discrimination and Employment Act of 1967 (as amended), the Federal
Rehabilitation Act of 1973 (as amended), the National Labor Relations Act, 29 U.S.C. § 151, et
seq. (the “NLRA”) or (y) in respect of (i) any environmental liabilities, debts, claims or obligations
arising from conditions first existing on or prior to the Closing Date (including, without limitation,
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the presence of hazardous, toxic, polluting, or contaminating substances or wastes), which may be
asserted on any basis, including, without limitation, under CERCLA, (ii) any liabilities, penalties,
costs, debts or obligations of or required to be paid by the Debtors for any taxes of any kind for
any period, labor, employment, or other law, rule, or regulation (including, without limitation,
filing requirements under any such laws, rules, or regulations), (iii) any products liability law or
doctrine with respect to the Debtors’ liability under such law, rule, or regulation or doctrine,
(iv) any consumer protection law or doctrine with respect to the Debtors’ liability under such law,
rule, or regulation or doctrine, or (v) any state or local escheat or similar laws.
19. Without limiting the generality of the foregoing, and except for the Assumed
Liabilities and, as otherwise provided in the Trudell APA and this Order, neither the Purchaser nor
any of its affiliates, successors, or assigns shall have any responsibility for (a) any liability or other
obligation of the Debtors or related to the Acquired Assets or (b) any Claims, Interests, or
Encumbrances against the Debtors or any of their predecessors or affiliates. By virtue of the
Purchaser’s purchase of the Acquired Assets, neither the Purchaser nor any of its affiliates shall
have any liability whatsoever with respect to the Debtors’ (or their predecessors’ or affiliates’)
respective businesses or operations or any of the Debtors’ (or their predecessors’ or affiliates’)
obligations based, in whole or part, directly or indirectly, on any theory of successor or vicarious
liability of any kind or character, or any theory based on acting in concert or active participation
with the Debtors, or based upon any theory of antitrust, environmental (including, but not limited
to CERCLA), successor or transferee liability, de facto merger or substantial continuity, labor and
employment (including, but not limited to, WARN), consumer protection law, or products liability
law, whether known or unknown as of the Closing, now existing or hereafter arising, asserted or
unasserted, fixed or contingent, liquidated or unliquidated, including any liabilities or non-
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monetary obligations on account of the Debtors’ employment agreements or health or benefit
plans, any settlement or injunction or any liabilities on account of any taxes arising, accruing or
payable under, out of, in connection with, or in any way relating to the operation of the Acquired
Assets prior to the Closing (collectively, with the potential claims set forth in paragraph 18 above,
“Successor or Transferee Liability”). The Purchaser would not have acquired the Acquired Assets
but for the foregoing protections against potential claims based upon Successor or Transferee
Liability.
20. None of the Purchaser nor its affiliates, successors, assigns, equity holders,
employees, or professionals shall have or incur any liability to, or be subject to any action by any
of the Debtors or any of their estates, predecessors, successors or assigns, arising out of the
negotiation, investigation, preparation, execution, delivery of the Trudell APA and the entry into
and consummation of the sale of the Acquired Assets, except as expressly provided in the Trudell
APA and this Order.
21. Nothing in this Order or the Trudell APA shall require the Purchaser or any of its
affiliates to: (a) continue or maintain in effect, or assume any liability in respect of any employee,
former employee, collective bargaining agreement, pension, welfare, fringe benefit, or any other
benefit plan, trust arrangement, or other agreements to which the Debtors are a party or have any
responsibility therefor including, without limitation, medical, welfare, and pension benefits
payable after retirement or other termination of employment; or (b) assume any responsibility as
a fiduciary, plan sponsor or otherwise, for making any contribution to, or in respect of the funding,
investment, or administration of any employee benefit plan, arrangement, or agreement (including
but not limited to pension plans) or the termination of any such plan, arrangement, or agreement.
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22. No bulk sales law or similar law of any state or other jurisdiction shall apply in any
way to the transactions with the Debtors that are approved by this Order, including, without
limitation, the Trudell APA and the Sale Transaction.
Failure to Specify Provisions
23. The failure specifically to include any particular provisions of the Trudell APA in
this Order shall not diminish or impair the effectiveness of such provisions, it being the intent of
the Court that the Trudell APA be authorized and approved in its entirety; provided, however, that
this Order shall govern if there is any inconsistency between the Trudell APA (including all
ancillary documents executed in connection therewith) and this Order. Likewise, all of the
provisions of this Order are nonseverable and mutually dependent. To the extent that this Order
is inconsistent with any prior order or pleading with respect to the Motion in these Chapter 11
Cases, the terms of this Order shall control.
Non-Material Modifications
24. The Trudell APA and any related agreements, documents, or other instruments may
be modified, amended, or supplemented by the parties thereto, in a writing signed by such parties,
and in accordance with the terms thereof, without further order of the Court, provided that any
such modification, amendment or supplement does not have a material adverse effect on the
Debtors’ estates or the DIP Lenders.
Related Relief
25. Each and every federal, state and governmental entity, agency or department, and
any other person or entity, is hereby authorized to accept any and all documents and instruments
in connection with or necessary to consummate the Sale Transaction and all other transactions
contemplated by the Trudell APA. For the avoidance of doubt, Bankruptcy Code section 1146(a)
shall not apply to the Sale Transaction.
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26. Neither Purchaser nor any Person claiming by, through or on behalf of Purchaser
(including but not limited to by operation of law, sale, assignment, conveyance or otherwise) shall
pursue, prosecute, litigate, institute, or commence an action based on, assert, sell, convey, assign,
or file any claim that relates to the Avoidance Actions (as defined in the DIP Orders).
27. No governmental unit may revoke or suspend any right, license, copyright, patent,
trademark, or other permission relating to the use of the Acquired Assets sold, transferred or
conveyed to the Purchaser on account of the filing or pendency of these Chapter 11 Cases or the
consummation of the sale of the Acquired Assets.
28. To the extent this Order is inconsistent with any prior order or pleading filed in
these Chapter 11 Cases related to the Motion, the terms of this Order shall govern. To the extent
there is any inconsistency between the terms of this Order and the terms of the Trudell APA, the
terms of this Order shall govern. Nothing contained in any plan of liquidation or reorganization,
or order of any type or kind entered in these Chapter 11 Cases, any subsequent chapter 7 or chapter
11 case of the Debtors, or any related proceeding subsequent to entry of this Order, will conflict
with or derogate from the terms of this Order or the Trudell APA.
29. This Order and the Trudell APA shall be binding in all respects upon all prepetition
and postpetition creditors of the Debtors, all interest holders of the Debtors, any Court appointed
committee (including the Committee), all successors and assigns of the Debtors and their affiliates
and subsidiaries, and any trustees, examiners, “responsible persons,” or other fiduciaries appointed
in these Chapter 11 Cases or upon a conversion of any of the Debtors’ cases to a case under
chapter 7 of the Bankruptcy Code, including a chapter 7 trustee, and upon closing the Trudell APA
and Sale Transaction shall not be subject to rejection or avoidance under any circumstances by any
party. For the avoidance of doubt, the Debtors’ inability to satisfy in full all administrative expense
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claims of the Debtors’ estates shall not be a basis for termination, rejection, or avoidance (as
applicable) of the Trudell APA or the Sale Transaction.
30. Notwithstanding anything to the contrary in this Order or any notice related thereto,
unless Cigna Health and Life Insurance Company, Cigna Behavioral Health, Inc., the Debtors
agree otherwise, the Employee Benefits Agreements (as defined in the Objection of Cigna to First
Notice to Contract Parties of Potentially Assumed and Assigned Executory Contracts and
Unexpired Leases [Docket No. 301]) shall not be assumed and assigned to the Purchaser as part
of the Sale.
31. Notwithstanding anything to the contrary in this Sale Order, the Bidding Procedures
Order, the Assumption and Assignment Procedures, any Potentially Assumed and Assigned
Contract Notice, any asset purchase agreement or any document related to any of the foregoing:
(a) nothing shall permit or otherwise effect a sale, an assignment or any other transfer at this time
of (i) any insurance policies that have been issued by ACE American Insurance Company, Illinois
Union Insurance Company, Westchester Surplus Lines Insurance Company, Westchester Fire
Insurance Company, Indemnity Insurance Company of North America, Federal Insurance
Company, Chubb National Insurance Company, Vigilant Insurance Company and each of their
respective U.S.-based affiliates and predecessors (collectively, the “Chubb Companies”) to or that
provide coverage to any of the Debtors (or their predecessors) and all agreements, documents or
instruments relating thereto (collectively the “Chubb Insurance Contracts”), and/or (ii) any rights,
proceeds, benefits, claims, rights to payments and/or recoveries under such Chubb Insurance
Contracts, unless and until a further order is entered by this Court, at a subsequent hearing, or as
submitted under certification of counsel by agreement of the Debtors, the Successful Bidder and
the Chubb Companies, with the rights of the parties fully preserved pending entry of such further
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order; (b) such further order, without further notice and which may be immediately effective, may
provide, among other things, that (i) subject to the execution of an assumption agreement by the
Debtors, the Successful Bidder and the Chubb Companies, in form and substance satisfactory to
each of the parties (the “Chubb Assumption Agreement”), the Debtors are authorized to assume
and assign the Chubb Insurance Contracts to the Successful Bidder, and the Successful Bidder
shall assume and shall be liable for any and all now existing or hereinafter arising obligations,
liabilities, terms, provisions and covenants of any of the Debtors under the Chubb Insurance
Contracts; (ii) the Debtors are authorized to enter into the Chubb Assumption Agreement and grant
a release to the Chubb Companies in relation to the Chubb Insurance Contracts; and/or (iii) such
other and further relief as may be requested by the Chubb Companies, the Debtors and/or the
Successful Bidder; and (c) unless and until the Chubb Assumption Agreement is entered into and
effective (and, thereafter, subject in all respects to the terms thereof) (I) nothing shall alter, modify
or otherwise amend the terms or conditions of the Chubb Insurance Contracts, and (II) for the
avoidance of doubt, the Successful Bidder is not, and shall not be deemed to be, an insured under
any of the Chubb Insurance Contracts; provided, however, that to the extent any claim with respect
to the Assets arises that is covered by the Chubb Insurance Contracts, the Debtors may pursue such
claim in accordance with the terms of the Chubb Insurance Contracts, and, if applicable, turn over
to the Successful Bidder any such insurance proceeds (each, a “Proceed Turnover”), provided,
further, however, that the Chubb Companies shall not have any duty to effectuate a Proceed
Turnover or liability related to a Proceed Turnover.
32. The Sale Transaction and all related transactions authorized by this Order shall
exclude property constituting “Transferred Assets” as defined in that certain Stock and Asset
Purchase Agreement by and between Vyaire Holding Company and SunMed Group Holdings,
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LLC d/b/a AirLife (“AirLife”) dated as of March 27, 2023, as amended (the “AirLife Assets”),
and the AirLife Assets shall not constitute Acquired Assets under the APA and Sale Transaction.
Following the Closing Date, to the extent that any right, title or interest to any asset, property or
right held by Purchaser or any of its affiliates following the Closing Date is determined to be an
AirLife Asset, Purchaser shall, and shall cause its applicable affiliates to assign, convey or as
promptly as practicable (and in any event within five (5) business days) transfer any such AirLife
Asset to AirLife (or an affiliate of AirLife as AirLife may specify) pursuant to an instrument of
transfer reasonably satisfactory to AirLife.
33. This Court shall retain exclusive jurisdiction to, among other things, interpret,
implement, and enforce the terms and provisions of this Order and the Trudell APA, including the
DIP Paydown Amount, all amendments thereto and any waivers and consents thereunder and each
of the agreements executed in connection therewith to which the Debtors are a party or which has
been assigned by the Debtors to the Purchaser, and to adjudicate, if necessary, any and all disputes
concerning or relating in any way to the Sale Transaction, including any and all disputes with any
counterparty to any executory contract or unexpired lease of the Debtors (including, without
limitation, disputes with respect to assumption and assignment of any Assumed Contracts or any
cure disputes) and any party that has, or asserts, possession, control or other rights in respect of
any of the Acquired Assets; provided, however, that, in the event the Court abstains from
exercising or declines to exercise such jurisdiction with respect to the Trudell APA, the Bidding
Procedures Order, or this Order, such abstention, refusal, or lack of jurisdiction shall have no effect
upon and shall not control, prohibit, or limit the exercise of jurisdiction of any other court having
competent jurisdiction with respect to any such matter. This Court retains exclusive jurisdiction
to compel delivery of the Acquired Assets, to protect the Debtors and their assets, including the
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Acquired Assets, against any Claims, Interests, or Encumbrances and Successor or Transferee
Liability and to enter orders, as appropriate, pursuant to Bankruptcy Code sections 105(a) or 363
(or other applicable provisions) necessary to transfer the Acquired Assets to the Purchaser.
34. This Order constitutes a final order within the meaning of 28 U.S.C. § 158(a).
35. Notwithstanding the provisions of Bankruptcy Rules 6004(h) and 6006(d) or any
applicable provisions of the Local Rules, this Order shall not be stayed after the entry hereof, but
shall be effective and enforceable immediately upon entry, and the 14-day stay provided in
Bankruptcy Rules 6004(h) and 6006(d) is hereby expressly waived and shall not apply. Time is
of the essence in closing the Sale Transaction, and the Debtors and the Purchaser intend to close
the Sale Transaction as soon as practicable.
36. The Purchaser shall not be required to seek or obtain relief from the automatic stay
under Bankruptcy Code section 362, to give any notice permitted by the Trudell APA or to enforce
any of its remedies under the Trudell APA or any other sale-related document. The automatic stay
imposed by Bankruptcy Code section 362 is modified solely to the extent necessary to implement
the preceding sentence; provided, however, that the Court shall retain exclusive jurisdiction over
any and all disputes with respect thereto.
37. The provisions of this Order are non-severable and mutually dependent.
38. All time periods set forth in this Order shall be calculated in accordance with
Bankruptcy Rule 9006(a).
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Exhibit 1
Trudell Asset Purchase Agreement
[To Be filed]
Case 24-11217-BLS Doc 401 Filed 08/21/24 Page 48 of 50
Exhibit 2
Assumed Contracts Exhibit
[To Be Filed]
Case 24-11217-BLS Doc 401 Filed 08/21/24 Page 49 of 50
Exhibit 3
Transaction Steps Memorandum
[To Be Filed]
Case 24-11217-BLS Doc 401 Filed 08/21/24 Page 50 of 50
Exhibit 4
Holdback Schedule
[To Be Filed]
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