Attached files
file | filename |
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8-K - FORM 8-K - CHAMPION ENTERPRISES INC | k48850e8vk.htm |
EX-2.1 - EX-2.1 - CHAMPION ENTERPRISES INC | k48850exv2w1.htm |
Exhibit 99.1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
FOR THE DISTRICT OF DELAWARE
X | ||||
In re
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: | Chapter 11 | ||
Champion Enterprises, Inc., et al.,
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: | |||
Debtors. | : | Case No. 09-14019 (KG) | ||
: | ||||
: | Jointly Administered | |||
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x | Related Docket No. 272 |
ORDER PURSUANT TO BANKRUPTCY CODE SECTIONS 363 AND 365
(A) AUTHORIZING DEBTORS ENTRY INTO THE ASSET PURCHASE
AGREEMENT, (B) AUTHORIZING AND APPROVING THE BIDDING
PROCEDURES, (C) AUTHORIZING AND APPROVING A BREAK-UP FEE AND
EXPENSE REIMBURSEMENT, (D) APPROVING NOTICE PROCEDURES, (E)
APPROVING PROCEDURES FOR THE ASSUMPTION AND ASSIGNMENT OF
CONTRACTS AND LEASES, AND (F) SETTING A DATE FOR THE SALE HEARING
(A) AUTHORIZING DEBTORS ENTRY INTO THE ASSET PURCHASE
AGREEMENT, (B) AUTHORIZING AND APPROVING THE BIDDING
PROCEDURES, (C) AUTHORIZING AND APPROVING A BREAK-UP FEE AND
EXPENSE REIMBURSEMENT, (D) APPROVING NOTICE PROCEDURES, (E)
APPROVING PROCEDURES FOR THE ASSUMPTION AND ASSIGNMENT OF
CONTRACTS AND LEASES, AND (F) SETTING A DATE FOR THE SALE HEARING
Upon consideration of the Motion for the Entry of an Order Pursuant to Bankruptcy Code
Sections 363 and 365 (A) Authorizing Debtors Entry into the Asset Purchase Agreement, (B)
Authorizing and Approving the Bidding Procedures, (C) Authorizing and Approving a Break-Up Fee and
Expense Reimbursement, (D) Approving the Notice Procedures, (E) Approving the Assumption and
Assignment Procedures, and (F) Setting a Date for the Sale Hearing (the Motion) 1
filed by Champion Enterprises, Inc. (Champion) and certain of its affiliates, as debtors
and debtors in possession (collectively, the Debtors) for the entry of an order pursuant
to sections 363 and 365 of chapter 11 of title 11 of the United States Code (the Bankruptcy
Code), Rules 2002, 6004, 6006, and 9014 of the Federal Rules of Bankruptcy Procedure (the
Bankruptcy Rules), and Rule 6004-1 of the Local Rules of Bankruptcy Practice and
Procedure of the United States Bankruptcy Court for the District of Delaware (the Local
Rules), granting
1 | Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Motion. |
the Motion; and the Court having reviewed the Motion; and the Court having determined that the
relief requested in the Motion is in the best interests of the Debtors, their estates, their
creditors and other parties in interest; and it appearing that proper and adequate notice of the
Motion has been given and that no other or further notice is necessary; and a hearing on the
Motion, and objections thereto, if any, having been held on February 8, 2010 (the
Hearing); and upon the evidence presented at, the arguments of counsel at, and the entire
record of the Hearing; and after due deliberation thereon, and any objections filed having been
considered and overruled; and good and sufficient cause appearing therefore, it is hereby
FOUND AND DETERMINED THAT:
A. The court has jurisdiction over the Motion pursuant to 28 U.S.C. § 157 and 1334, and this
matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A). Venue of these cases and the
Motion in this district is proper under 28 U.S.C. § 1408 and 1409.
B. The relief requested in the Motion is authorized and in accordance with Bankruptcy Code
sections 363 and 365, Bankruptcy Rules 2002, 6004, and 6006, and Delaware Local Bankruptcy Rule
6004-1.
C. Good and sufficient notice of the relief granted by this Order has been given and no
further notice is required. A reasonable opportunity to object or be heard regarding the relief
granted by this Order (including, without limitation, with respect to the proposed Bidding
Procedures and Bid Protections, as defined below) has been afforded to those parties entitled to
notice pursuant to Local Rule 2002-1(b).
D. The Debtors proposed sale notice, substantially in the form attached hereto as Exhibit
A (the Sale Notice), the auction and hearing notice (the Creditor Notice),
substantially in the form attached hereto as Exhibit B, and the notice substantially in the
form
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attached hereto as Exhibit C to be served on counterparties to the Assumed Executory
Contracts (the Cure Notice), each provide due and adequate notice of the proposed sale of
the Assets and/or the proposed assumption and assignment of the Assumed Executory Contracts, and
that no other or further notice is required.
E. The Bidding Procedures, substantially in the form attached hereto as Exhibit D, are
fair, reasonable and appropriate, and are designed to maximize recovery with respect to the sale of
the Assets.
F. The Debtors have demonstrated compelling and sound business justifications for authorizing
the sale of the Debtors Assets, entry into the Asset Purchase Agreement (the Agreement)
as a stalking horse sale agreement and the payment of the Bid Protections under the
circumstances, timing, and procedures set forth herein, in the Motion and in the Agreement.
G. Entry into the Agreement with a new entity formed to consummate the Acquisition (as defined
in the Letter of Intent, defined below) (the Purchaser), a copy of which is attached
hereto as Exhibit E, as a stalking-horse sale agreement is in the best interest of the
Debtors and the Debtors estates and creditors. The Agreement will enable the Debtors to secure an
adequate floor for the Auction and will provide a clear benefit to the Debtors estates.
H. The Break-up Fee and Expense Reimbursement (each as defined below) are fair and reasonable,
and provide a benefit to the Debtors estates and creditors.
I. The Debtors payment of the Bid Protections under the conditions set forth in, and in
accordance with the terms of, the Agreement, the Motion and this Order is (a) an actual and
necessary cost of preserving the Debtors estates, within the meaning of section 503(b) of the
Bankruptcy Code, (b) of substantial benefit to the Debtors estates and creditors and all parties
in
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interest herein, (c) reasonable and appropriate, and (d) necessary to ensure that the
Purchaser will continue to pursue the proposed Agreement to undertake the sale of the Assets.
The entry of this Order is in the best interests of the Debtors and their estates, creditors, and
interest holders and all other parties in interest herein; and it is therefore
ORDERED, ADJUDGED AND DECREED THAT:
1. The Motion is GRANTED.
2. Except as expressly provided herein, nothing herein shall be construed as a determination
of the rights of any party in interest in these chapter 11 cases.
The Bidding Procedures
3. The Bidding Procedures are APPROVED in their entirety and incorporated hereby by reference.
The Debtors are authorized to conduct a Sale by auction of the Assets pursuant to the Bidding
Procedures and the terms of this Order. The proposed sale of the Assets, the proposed assumption
and assignment of the Assumed Executory Contracts, the Auction (as defined below) and the Sale
Hearing shall be conducted in accordance with the provisions of this Order and the Bidding
Procedures.
4. The Purchaser shall, subject to the terms of the Agreement, be deemed a Qualified Bidder
pursuant to the Bidding Procedures.
The Assignment Procedures
5. The Assignment Procedures attached hereto as Exhibit F are hereby authorized,
approved and made part of this Order as if fully set forth herein.
6. Recognizing that providing individual notice to each contract and lease counterparty will
ensure that such parties will receive adequate notice, the Court hereby waives the requirements of
Bankruptcy Rule 6006(f)(6).
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Break-Up Fee and Expense Reimbursement
7. To the extent due under the Agreement, the Debtors are authorized to pay: (i) to the New
Equity Investors (as defined in the Letter of Intent) and their designees a fee of $3 million (the
Break-Up Fee), which shall be reduced to the extent that the Expense Reimbursement and
the Break-Up Fee required to be paid would, in the aggregate, exceed $4 million; and (ii) reimburse
the Purchaser and the New Equity Investors an amount not to exceed, when taken together with the
Break-Up Fee, $4 million, equal to the total amount of all reasonable and documented fees, costs
and expenses incurred by the Purchaser in connection with the preparation, execution and
performance of the Agreement and the transactions contemplated thereby, including all filing and
notification fees, and all fees and expenses of the representatives of the Purchaser and the Joint
Bidders (as each such term is defined in the Letter of Intent among Centerbridge Capital Partners
L.P., MAK Capital Fund LP, Sankaty Credit Opportunities II, L.P., Sankaty Credit Opportunities III,
L.P., Sankaty Credit Opportunities IV, L.P., Sankaty Credit Opportunities IV (Offshore Master),
L.P. and the Supporting DIP Lenders, dated as of January 15, 2010 (the Letter of Intent))
(the Expense Reimbursement, and together with the Break-Up Fee, the Bid
Protections).
8. The Debtors obligation to pay the Break-Up Fee and Expense Reimbursement, under the
conditions set forth in, and in accordance with the terms of the Agreement, shall survive
termination of the Agreement to the extent permitted by the Agreement and shall constitute allowed
claims against the Debtors with priority over any and all administrative expenses, diminution
claims and all other claims against the Debtors, now existing or hereafter arising, of any kind
whatsoever, provided however that only the Expense Reimbursement shall have priority pari passu
with Superpriority Claims of the kind specified in the Courts Final
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Order (I) Authorizing Debtors (A) to Obtain Postpetition Financing under 11 U.S.C. §§ 105,
361, 362, 363(b), 364(c)(1), 364(c)(2), 364(c)(3), 364(d)(1) and 364(e) and (B) to Utilize Cash
Collateral under 11 U.S.C. § 363, (II) Granting Adequate Protection to Prepetition Secured Parties
under 11 U.S.C. §§ 361, 362, 363 and 364, and (III) Grating Related Relief [Docket No. 244 ] (the
Final DIP Order), provided further that the Expense Reimbursement shall have priority over
the DIP Liens (defined in the Final DIP Order) and that the priorities for payment of the Expense
Reimbursement and Break-Up Fee set forth herein shall in all events be subject and subordinate to
the Carve Out, including all funds contained in or added to the Carve Out Account, and the expenses
and claims of the Administrative Agent as provided for in the Final DIP Order and associated Debtor
in Possession Financing Agreement. The Break-Up Fee shall only be payable by the Debtors upon the
closing of an Alternative Transaction (as defined in the Letter of Intent). The Expense
Reimbursement shall be payable only upon (i) termination of the Agreement by the Purchaser or the
New Equity Investors upon the occurrence of a Buyer Termination Event, other than Buyer Termination
Events specified in sub-clauses a., b., c. g. and i. of the definition thereof and subject in the
case of the Buyer Termination Events specified in sub-clauses d., e., f. and j. of the definition
thereof to the Purchaser having used commercially reasonable efforts to endeavor that the
requirements of the applicable sub-clause are satisfied or (ii) consummation of an Alternative
Transaction (each as defined in the Letter of Intent).
9. Under no circumstances shall any party to the Agreement or the Letter of Intent be liable
for consequential, punitive (including multiple damages assessed as a punitive measure) or special
damages arising out of, or in connection with, the Agreement, the Letter of Intent or the
transactions contemplated thereby or any breach or alleged breach of any of the terms thereof,
including damages alleged as a result of tortious conduct, or for specific performance of
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the obligations it is to perform thereunder at or prior to the Closing nor shall any Debtor be
liable for tortious interference with the Purchasers rights under the Agreement nor shall the
Purchaser or the Joint Bidders be liable for tortious interference with the Debtors rights under
the Agreement.
Notice Procedures
10. The notices, in substantially the same forms as annexed hereto as Exhibit A (the
Sale Notice), Exhibit B (the Creditor Notice) and Exhibit C (the Cure Notice)
are sufficient to provide effective notice to all interested parties of the Bidding Procedures, the
Auction, the Sale Hearing and the Assignment Procedures, pursuant to Bankruptcy Rules 2002(a)(2),
6004 and 6006, and are hereby approved.
11. Within two (2) business days after the entry of this Order, the Debtors (or their agents)
shall serve the Sale Notice by first-class mail upon: (a) the United States Trustee for the
District of Delaware, (b) counsel to the Purchaser, (c) counsel to the Official Committee of
Unsecured Creditors, (d) the Debtors prepetition and postpetition lenders; (e) all parties known
to be asserting a lien on any of the Debtors assets; (f) all entities known to have expressed an
interest in acquiring any of the Assets; (f) Office of the United States Attorney for the District
of Delaware; (h) all state attorney generals in states in which the Debtors do business; (i) various federal and state agencies and authorities asserting jurisdiction over the Assets,
including the Internal Revenue Service and applicable state and local taxing authorities; and
(j) those persons who have requested notice pursuant to Bankruptcy Rule 2002.
12. Within two (e) business days after the entry of this Order, the Debtors shall serve the
Creditor Notice on all of the parties set forth on the Debtors creditor matrix who were not served
with the Sale Notice.
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Objection Procedures
A. Objections to Assumption and Assignment
13. The procedures for objecting to the assumption and assignment of executory contracts and
unexpired leases are set forth on Exhibit F hereto.
B. Objections to the Sale
14. All parties objecting to the Sale of the Assets must file a formal, written objection.
Each such objection must: (i) state the legal and factual bases of such objection; (ii) be in
writing; (iii) be signed by counsel or attested to by the objecting party; (iv) be in conformity
with the Bankruptcy Code, Bankruptcy Rules and the Local Rules, (v) be filed with the Clerk of the
United States Bankruptcy Court for the District of Delaware, 824 Market Street, 3rd
Floor, Wilmington, Delaware 19801 by no later than 4:00 p.m. (prevailing Eastern Time ) on
February 23, 2010 (the Objection Deadline); and (vi) be served so as to be received
on or before the Objection Deadline by the following parties: (a) counsel to the Debtors:
Pachulski Stang Ziehl & Jones LLP, 919 N. Market Street, 17th Floor, Wilmington, DE 19899-8705,
Fax: (302) 652-4400 (Attention: Laura Davis Jones); (b) counsel to the New Equity Investors (as
defined in the Letter of Intent): Ropes & Gray LLP, 1211 Avenue of the Americas, New York, New
York 10036, Fax: (646) 728-1662 (Attention: Mark Bane); (c) counsel to the Creditors Committee:
Landis Rath & Cobb LLC, 919 North Market Street, Suite 1800, Wilmington, DE 19801, Fax: (302)
467-4450 (Attention: William E. Chipman, Jr.) and LeClair Ryan, Riverfront Plaza, East Tower, 951
East Byrd Street, Eighth Floor, Richmond, VA 23219 (Attention: Bruce H. Matson); (d) counsel to
Credit Suisse AG, Cayman Island Branch: Willkie Farr & Gallagher LLP, 787 Seventh Avenue, New
York, New York 10036, Fax: (212) 728-9764 (Attention: Paul V. Shalhoub); (e) counsel to General
Electric Capital Corporation and Credit Suisse Asset
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Management: Latham & Watkins LLP, 233 S. Wacker Drive, Suite 5800, Chicago, IL 60606
(Attention: Richard A. Levy); and (f) the U.S. Trustee, 844 King Street, Suite 2207, Wilmington,
Delaware 19801.
15. The foregoing requirements are collectively referred to herein as the Objection
Procedures. Only those objections made in compliance with the Objection Procedures will be
considered by the Court at the Sale Hearing. The failure of any objecting person or entity to file
its objections by the Objection Deadline and in accordance with the Objection Procedures will be a
bar to the assertion, at the Sale Hearing or thereafter, of any objection pertaining to the Auction
or the Sale (excluding, however, objections relating to the assumption and assignment of any
Designated Agreement, which must be filed in accordance with the Assignment Procedures.).
The Auction
16. If the Debtors receive more than one Qualified Bid (as defined in the Bidding Procedures),
an auction (the Auction) will be held on March 1, 2010, at 11:00 a.m. (prevailing Eastern
Time), at the offices of Pachulski Stang Ziehl & Jones LLP, 919 North Market Street,
17th Floor, Wilmington, DE 19899, or at any such other location as the Debtors may
hereafter designate. Counsel to the Debtors are authorized to hold and conduct the Auction in
accordance with the Bidding Procedures.
The Sale Hearing
17. The Sale Hearing shall be held on March 2, 2010 at 1:00 p.m. (prevailing Eastern
Time) before the Honorable Kevin Gross, United States Bankruptcy Judge, in the United States
Bankruptcy Court for the District of Delaware, 824 Market Street, 6th Floor, Court Room
No. 3, Wilmington, Delaware 19801, to consider the approval of the Sale of the Assets. In
accordance with the terms of the Agreement, the Debtors may adjourn the Sale Hearing one or
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more times without further notice by making an announcement in open court or by the filing of
a hearing agenda, or other notice, announcing the adjournment of the Sale Hearing.
Other Relief Granted
18. In the event there is a conflict between this Order and the Motion or the Agreement, this
Order shall control and govern.
19. Nothing in this Order, the Agreement or the Motion shall be deemed to or constitute the
assumption or assignment of an executory contract or unexpired lease.
20. The Debtors are authorized and empowered to take such steps, expend such sums of money,
and do such other things as may be necessary to implement and effect the terms and requirements
established by this Order.
21. The Debtors are hereby authorized to conduct the Sale (as defined in the Bidding
Procedures) without the necessity of complying with any state or local bulk transfer laws or
requirements.
22. Notwithstanding any provision in the Federal Rules of Bankruptcy Procedure to the
contrary, (i) the terms of this Order shall be immediately effective and enforceable upon its
entry, (ii) the Debtors are not subject to any stay in the implementation, enforcement or
realization of the relief granted in this Order and (iii) the Debtors may, in their discretion and
without further delay, take any action and perform any act authorized under this Order.
23. All objections to the Motion or the relief requested therein (and all reservations of
rights included therein), as they pertain to the entry of this Order, are overruled to the extent
they have not been withdrawn, waived or otherwise resolved.
24. Nothing in this Order or the related Bidding Procedures (specifically, among other things,
the Debtors designation of the credit bid by Centerbridge Capital Partners, L.P., MAK
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Capital Fund LP and Sankaty Credit Opportunities II, L.P., Sankaty Credit Opportunities III,
L.P., Sankaty Credit Opportunities IV, L.P. and Sankaty Credit Opportunities IV (Offshore Master),
L.P. (the Credit Bid) as a Qualified Bid) shall, in any respect, limit, modify, preclude or
otherwise adversely affect the Committees rights to investigate, and challenge if necessary, any
Claims and Defenses (as defined in the Final DIP order) as referenced in, and permitted by,
paragraph 21 of the Final DIP Order. To the extent that this Order conflicts in any respect with,
or in any way modifies or limits, the investigation and challenge rights afforded the Committee
pursuant to paragraph 21 of the Final DIP Order, the Final DIP Order, and the rights afforded the
Committee thereunder, shall control.
25. The provisions of Bankruptcy Rules 6004(h) and 6006(d) staying the effectiveness of this
Order for ten (10) days are hereby waived, and this Order shall be effective immediately upon entry
of this Order.
26. The Court retains jurisdiction with respect to all matters arising from or related to the
implementation of this Order.
Dated: February __, 2010 | ||||
THE HONORABLE KEVIN GROSS | ||||
UNITED STATES BANKRUPTCY JUDGE | ||||
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