Attached files
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8-K - ORLEANS HOMEBUILDERS INC | v181518_8k.htm |
EX-99.2 - ORLEANS HOMEBUILDERS INC | v181518_ex99-2.htm |
EX-10.1 - ORLEANS HOMEBUILDERS INC | v181518_ex10-1.htm |
IN
THE UNITED STATES BANKRUPTCY COURT
FOR
THE DISTRICT OF DELAWARE
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Chapter
11
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In
re:
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)
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Case
No. 10-10684 (PJW)
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ORLEANS
HOMEBUILDERS, INC., et
al.,1
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Jointly
Administered
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Debtors.
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)
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)
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Re: Docket
No.
_____
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ORDER: (A) AUTHORIZING AND APPROVING THE ASSET
PURCHASE AGREEMENT, (B) AUTHORIZING THE SALE OF THE PURCHASED ASSETS FREE AND
CLEAR, (C) AUTHORIZING THE ASSUMPTION AND ASSIGNMENT OF CERTAIN EXECUTORY
CONTRACTS AND UNEXPIRED LEASES IN CONNECTION WITH THE SALE, (D) AUTHORIZING THE
DEBTORS TO CONSUMMATE ALL TRANSACTIONS
RELATED TO THE ABOVE, AND (E) GRANTING OTHER RELIEF
1
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The Debtors in these chapter 11
cases, along with the last four digits of each Debtor’s tax identification
number, are: Orleans Homebuilders, Inc. (4323), Brookshire Estates, L.P.
(8725), Community Management Services Group, Inc. (6620), Greenwood
Financial Inc. (7510), Masterpiece Homes, LLC (1971), OHB Homes, Inc.
(0973), OHI Financing, Inc. (6591), OHI PA GP, LLC (2675), OPCNC, LLC
(8853), Orleans Arizona Realty, LLC (9174), Orleans Arizona, Inc. (2640),
Orleans at Bordentown, LLC (4968), Orleans at Cooks Bridge, LLC (4185),
Orleans at Covington Manor, LLC (9891), Orleans at Crofton Chase, LLC
(8809), Orleans at East Greenwich, LLC (9814), Orleans at Elk Township,
LLC (6891), Orleans at Evesham, LLC (7244), Orleans at Falls, LP (2735),
Orleans at Hamilton, LLC (9679), Orleans at Harrison, LLC (4155), Orleans
at Hidden Creek, LLC (3301), Orleans at Jennings Mill, LLC (4693), Orleans
at Lambertville, LLC (0615), Orleans at Limerick, LP (7791), Orleans at
Lower Salford, LP (9523), Orleans at Lyons Gate, LLC (2857), Orleans at
Mansfield LLC (1498), Orleans at Maple Glen LLC (7797), Orleans at Meadow
Glen, LLC (4966), Orleans at Millstone River Preserve, LLC (8810), Orleans
at Millstone, LLC (8063), Orleans at Moorestown, LLC (9250), Orleans at
Tabernacle, LLC (9927), Orleans at Thornbury, L.P. (4291), Orleans at
Upper Freehold, LLC (3225), Orleans at Upper Saucon, L.P. (3715), Orleans
at Upper Uwchlan, LP (8394), Orleans at Wallkill, LLC (2875), Orleans at
West Bradford, LP (4161), Orleans at West Vincent, LP (9557), Orleans at
Westampton Woods, LLC (8095), Orleans at Windsor Square, LP (9481),
Orleans at Woolwich, LLC (9215), Orleans at Wrightstown, LP (9701),
Orleans Construction Corp. (0893), Orleans Corporation (8770), Orleans
Corporation Of New Jersey (5325), Orleans DK, LLC (5308), Orleans RHIL, LP
(1938), Parker & Lancaster Corporation (1707), Parker & Orleans
Homebuilders, Inc. (5269), Parker Lancaster, Tidewater, L.L.C. (7432),
Realen Homes, L.P. (8293), RHGP LLC (8197), Sharp Road Farms Inc. (1871),
Stock Grange, LP (4027) and Wheatley Meadows Associates
(5459).
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This
matter coming before the Court on the motion of the above-captioned debtors and
debtors in possession (collectively, the “Debtors”), dated April 13, 2010 (the
“Sale Motion”)2
(Docket No. [__]), for orders (A)(I) approving the sale procedures and bidding
protections to be employed in connection with the proposed sale of substantially
all of the Debtors’ assets, (II) scheduling an auction (the “Auction”) and a
hearing (the “Sale Hearing”) to consider approval of (i) the proposed sale, (ii)
the assumption and assignment of certain executory contracts and unexpired
leases in connection with the sale and the rejection of other such executory
contracts and unexpired leases, and (iii) other related relief, and (III)
approving the proposed notice of the respective dates, times, and places for the
Auction and for the Sale Hearing; and (B)(I) authorizing and approving the Asset
Purchase Agreement, dated as of April 13, 2010 (the “APA”), between the Debtors
and certain non-debtor affiliates (collectively, the “Sellers”), and NVR, Inc.
(the “Purchaser”), or such other purchaser providing a higher or otherwise
better offer for the Purchased Assets; (II) authorizing the sale of the
Purchased Assets free and clear of all Liens and Liabilities (other than the
Permitted Liens and the Assumed Liabilities); (III) authorizing the assumption
and assignment of certain contracts and leases in connection with the sale and
the rejection of certain executory contracts and unexpired leases; (IV)
authorizing the Debtors to consummate all transactions related to the above; and
(V) granting other relief; and upon the record of the Sale Hearing; and it
appearing that, under the circumstances here, present, good, sufficient, and
timely notice of the relief sought and granted in this Sale Order having been
given; and it further appearing that no other or further notice of the relief
provided for herein need be given; and after due deliberation and sufficient
cause appearing therefor, it is hereby
2
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All capitalized terms not
otherwise defined herein shall have the meaning ascribed to them in the
APA, or, if not defined therein, in the Sale
Motion.
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2
FOUND
AND DETERMINED THAT:
JURISDICTION, FINAL ORDER
AND STATUTORY PREDICATES
A. This
Court has jurisdiction over the Sale Motion, the transactions contemplated by
the APA and any other ancillary documents and agreements related thereto
pursuant to 28 U.S.C. §§ 157 and 1334. This matter is a
core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A) and
(N). Venue of these chapter 11 cases (the “Cases”) and the Sale
Motion in this District is proper under 28 U.S.C. §§ 1408 and
1409.
B. This
Sale 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), the Court expressly finds that there is no just
reason for delay in the implementation of this Sale Order, and expressly directs
entry of judgment as set forth herein.
C. The
bases for the relief sought in the Sale Motion are Sections 105, 363 and
365 of the Bankruptcy Code, Bankruptcy Rules 2002, 6003, 6004, 6006, 9007
and 9014, and Local Rule 6004-1.
D. The
Debtors have demonstrated both: (1) good, sufficient, and sound business
purposes and justifications for the sale of the Purchased Assets to Purchaser
upon the terms and conditions of the APA (the “Sale”); and (2) compelling
circumstances for the Sale pursuant to Section 363(b) of the Bankruptcy
Code prior to, and outside of, a plan of reorganization in that, among other
things, the value of the Purchased Assets would be harmed by any delay of the
Sale. Time is of the essence in consummating the proposed
Sale.
E. On
May [ ], 2010, this Court entered the Bidding Procedures Order
approving Bidding Procedures for the Purchased Assets. The Bidding
Procedures provided a full, fair and reasonable opportunity for any person to
make an offer to purchase the Purchased Assets. The Debtors conducted
an Auction in accordance with the Bidding Procedures Order and complied with
that order in all respects. The Purchaser complied with the Bidding
Procedures Order.
3
F. As
demonstrated by the testimony and other evidence proffered or adduced at the
Sale Hearing: (1) the Debtors have adequately marketed the Purchased
Assets; (2) the Purchase Price contained in the APA constitutes the highest
and otherwise best offer for the Purchased Assets and provides fair and
reasonable consideration therefor; (3) the Sale will provide a greater
recovery for the Debtors’ creditors than would be provided by any other
practical available alternative; (4) no other party has offered to purchase
the Purchased Assets for greater economic value to the Debtors or their estates;
and (5) the consideration to be paid by the Purchaser under the APA
constitutes reasonably equivalent value and fair consideration under the
Bankruptcy Code and under the laws of the United States, any state, territory or
possession thereof or the District of Columbia.
G. The
Purchaser has provided the Debtors with a good faith deposit in an amount equal
to $17,000,000 (such amount, together with the interest accrued thereon,
the ”Good Faith Deposit”), which Good Faith Deposit is currently being held
by [_______________________] in an interest-bearing account.
H. Approval
of the APA and the consummation of the Sale to the Purchaser at this time are in
the best interests of the Debtors, their creditors, their estates and other
parties in interest.
I.
The Debtors: (1) have full corporate power and authority to execute
the APA and all other documents contemplated thereby, and take all actions
contemplated thereby, and the Sale has been duly and validly authorized by all
necessary corporate action of the Debtors; (2) have all of the corporate
power and authority necessary to consummate the transactions contemplated by the
APA; (3) have taken all actions necessary to authorize and approve the APA
and the consummation by the Debtors of the transactions contemplated thereby;
and (4) require no consents or approvals, other than of this Court and
those otherwise expressly provided for in the APA, to consummate such
transactions.
4
J.
The APA and each of the transactions contemplated therein were negotiated,
proposed and entered into by the Sellers and the Purchaser in good faith,
without collusion and from arm’s-length bargaining positions. The
Purchaser is a “good faith purchaser” within the meaning of Section 363(m)
of the Bankruptcy Code and, as such, is entitled to all the protections afforded
thereby. The Purchaser has not engaged in any conduct that would
cause or permit the APA to be avoided or impose costs and damages under
Section 363(n) of the Bankruptcy Code.
K. As
evidenced by the certificates of service filed with the Court: (1) proper,
timely, adequate and sufficient notice of the Sale Motion, the Bidding
Procedures, the Auction, the Sale Hearing, this Sale Order, the rejection of the
Rejected Contracts, the Sale, the assumption and assignment of the Purchased
Contracts and the Purchased Leases, and all of the other Transactions, all
proceedings held thereon and all relevant objection deadlines has been provided
by the Debtors; (2) such notice was good, sufficient and appropriate under
the particular circumstances; and (3) no other or further notice of the
Sale Motion, the Bidding Procedures, the Auction, the Sale Hearing, this Sale
Order, the rejection of the Rejected Contracts, the Sale, the assumption and
assignment of the Purchased Contracts and the Purchased Leases, and all of the
other Transactions, is or shall be required. A reasonable opportunity
to object or be heard with respect to the Sale Motion and the relief requested
therein has been afforded to all interested persons and entities, including, but
not limited to:
(i) the
Office of the United States Trustee for the District of Delaware;
(ii) counsel
to the Agent;
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(iii) proposed
counsel to the Creditors Committee;
(iv) the
Debtors’ 20 largest unsecured creditors;
(v) all
known secured creditors of the Debtors;
(vi) counsel
to the Purchaser;
(vii) the
United States Attorney General;
(viii) the
United States Attorney’s Office;
(ix) the
Internal Revenue Service;
(x) all
parties to the known Purchased Contracts and Purchased Leases that would
potentially be assumed and assigned in connection with the Sale or
rejected;
(xi) all
other known taxing authorities and other known governmental agencies whose
rights may be affected by the sale of the Purchased Assets;
(xii) all
parties that have been identified by the Debtors and their advisors as being
potentially interested in making an offer to purchase the Purchased Assets and
participating in the Auction;
(xiii) all
parties that have requested notice pursuant to Bankruptcy
Rule 2002;
(xiv) all
parties identified on the Motion Service List; and
(xv) all
other parties in interest in the Bankruptcy Cases known to the Debtors as of the
Petition Date.
L. The
service of notice of the Debtors’ intent to assume and assign the Purchased
Contracts and the Purchased Leases, and of the related proposed Cure Costs (the
“Cure Notice”), in accordance with the provisions of the Bidding Procedures
Order, upon each non-debtor counterparty to the Purchased Contracts and the
Purchased Leases, constitutes good, sufficient and appropriate notice under the
circumstances and no further notice need be given with respect to the assumption
and assignment of the Purchased Contracts and the Purchased
Leases. Such notice shall offer all non-debtor counterparties to the
Purchased Contracts and the Purchased Leases a reasonable opportunity to object
to both the Proposed Cure Amount listed in the Cure Notice and the assumption
and assignment of the Purchased Contracts and the Purchased
Leases.
6
M. Upon
the Closing, the sale of the Purchased Assets to Purchaser will vest Purchaser
with good and marketable title to the Purchased Assets free and clear of all
Liens (as defined below) and Liabilities (as defined below), other than the
Permitted Liens and the Assumed Liabilities, because, in each case, one or more
of the standards set forth in Section 363(f)(1)-(5) of the Bankruptcy Code
have been satisfied. Those holders of Liens or Liabilities who did
not object, or who withdrew their objections, to the Sale or the Sale Motion are
deemed to have consented pursuant to Section 363(f)(2) of the Bankruptcy
Code. Those holders of Liens and Liabilities who did object fall
within one or more of the other subsections of Section 363(f) of the
Bankruptcy Code and are adequately protected by having their Liens and
Liabilities, if any, attach to the proceeds of the Sale in the same order of
priority and with the same validity, force and effect that such creditor had
prior to the Sale, subject to the rights, claims, defenses and objections, if
any, of the Debtors and all interested parties with respect to such Liens and
Liabilities.
N. The
Purchaser would not have entered into the APA and would not consummate the
transactions contemplated thereby, thus adversely affecting the Debtors, their
estates and their creditors, if the sale of the Purchased Assets were not free
and clear of all Liens and Liabilities (other than Permitted Liens and Assumed
Liabilities), or if the Purchaser would, or in the future could, be liable for
any such Liens and Liabilities (other than Permitted Liens and Assumed
Liabilities).
O. The
provisions of the APA are non-severable and mutually dependent.
P. The
assumption and assignment of the Purchased Contracts and the Purchased Leases
are integral to the APA, are in the best interests of the Debtors and their
estates, and represent the reasonable exercise of the Debtors’ sound business
judgment. The rejection of the Rejected Contracts is in the best
interests of the Debtors and their estates and represents the reasonable
exercise of the Debtors’ sound business judgment.
7
Q. With
respect to each of the Purchased Contracts and the Purchased Leases, the Debtors
have satisfied all of the requirements of Sections 363 and 365(b) of the
Bankruptcy Code in order to assume and assign the Purchased Contracts and the
Purchased Leases to the Purchaser. Further, the Purchaser has
provided all necessary adequate assurance of future performance under the
Purchased Contracts and the Purchased Leases in satisfaction of
Sections 365(b) and 365(f) of the Bankruptcy Code. Accordingly,
the Purchased Contracts and the Purchased Leases may be assumed by the Debtors
and assigned to the Purchaser in accordance with the terms and conditions of the
APA.
R. Without
limiting the generality of the foregoing, the APA was not entered into for the
purpose of, nor does it have the effect of, hindering, delaying or defrauding
creditors of the Debtors under any applicable law. Except for the
Assumed Liabilities, and the other obligations of the Purchaser specifically set
forth in the APA or in connection with this or other orders of the Court, the
Sale and the Transactions shall not impose nor result in the imposition of any
liability or responsibility on the Purchaser or its affiliates, successors or
assigns or any of their respective assets (including the Purchased Assets), and
the transfer of the Purchased Assets to the Purchaser does not and will not
subject the Purchaser or its affiliates, successors or assigns or any of their
respective assets (including the Purchased Assets) to any liability for any
Claims, including, without limitation, for any successor liability, other than
as expressly identified as an Assumed Liability.
8
NOW
THEREFORE, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT:
General
Provisions
1. The
Sale Motion is granted in its entirety and the Sale is approved as set forth in
this Sale Order.
2. The
findings of fact set forth above and conclusions of law stated herein shall
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 finding of fact later
shall be determined to be a conclusion of law, it shall be so deemed, and to the
extent any conclusion of law later shall be determined to be a finding of fact,
it shall be so deemed.
3. All
objections, if any, to the Sale Motion or the relief requested therein that have
not been withdrawn, waived or settled as announced to the Court at the Sale
Hearing or by stipulation filed with the Court, and all reservations of rights
included therein, are hereby overruled with prejudice on the
merits.
Approval of the Asset
Purchase Agreement
4. The
APA, all transactions contemplated therein and all of the terms and conditions
thereof are hereby approved in all respects pursuant to Sections 105, 363 and
365 of the Bankruptcy Code.
5. Upon
entry of this Sale Order, the APA shall be a legal, valid and binding agreement
of and upon the Debtors in accordance with the terms and conditions
thereof.
9
6. Pursuant
to Sections 105(a), 363(b) and 365 of the Bankruptcy Code, the Debtors are
hereby authorized and empowered (and the Debtors are authorized and empowered to
cause their affiliates, officers, employees and agents) to fully perform under,
consummate and implement the APA in accordance with the terms and conditions
thereof, and to execute all additional instruments and documents contemplated in
the APA to implement same, and the Debtors are hereby authorized to take all
further actions as may reasonably be required by the Purchaser for the purpose
of assigning, transferring, granting, conveying and conferring to the Purchaser
or reducing to possession, any or all of the Purchased Assets, or otherwise in
connection with the performance of the Debtors’ obligations as contemplated in
the APA.
Transfer of the Purchased
Assets
7. Pursuant
to Sections 105(a) and 363(f) of the Bankruptcy Code, upon the
Closing, the sale of the Purchased Assets to the Purchaser (including, without
limitation, the assignment of the Purchased Contracts and the
Purchased Leases to the Purchaser) upon the terms and conditions in the APA will
be a legal, valid and an effective sale, assignment and transfer of the
Purchased Assets to the Purchaser and shall vest the Purchaser with good and
marketable title to the Purchased Assets free and clear of any (i) mortgage,
lien (as such term is defined in Section 101(37) of the Bankruptcy Code
including any mechanic’s, materialmen’s, statutory and any other consensual or
non-consensual lien), security interest, charge, hypothecation, deed of trust,
pledge, right of use, first offer or refusal, easement, servitude, restrictive
covenant, lease, sublease, covenant, right of way, option, restriction
(including, without limitation, any restriction on transfer or on the use,
voting, receipt of income or other rights or exercise of any attributes of
ownership), interest, encroachment or encumbrance of any kind, or
claim (as such term is defined in Section 101(5) of the Bankruptcy
Code and including, without limitation, any claim against the
Purchaser and/or any of its affiliates and/or any of the assets or properties of
the Purchaser or any of its affiliates (including, without limitation, the
Purchased Assets) based on a theory of successor liability, alter-ego
or any similar theory of liability), (all of the foregoing
collectively referred to as “Liens”), and any (ii) debt, liability or obligation
(whether direct or indirect, known or unknown, absolute or contingent, accrued
or unaccrued, liquidated or unliquidated, or due or to become due), and all
costs and expenses relating thereto (all of the foregoing collectively referred
to as “Liabilities”), except for the Permitted Liens and the Assumed
Liabilities. The Liens and Liabilities shall attach to the proceeds
of the Sale, with the same validity, enforceability, priority, force and effect
that they now have as against the Purchased Assets, subject to the rights,
claims, defenses and objections, if any, of the Debtors and all interested
parties with respect to such Liens and Liabilities.
10
8. As
of the Closing, all persons and entities holding Liens and/or Liabilities
(except for the Permitted Liens and Assumed Liabilities), and their respective
successors and assigns, are hereby forever barred, estopped and permanently
enjoined from asserting, prosecuting or otherwise pursuing such Liens and
Liabilities of any kind and nature against the Purchaser, its affiliates,
successors or assigns, the Purchased Assets or any other assets or
properties of the Purchaser or its affiliates.
9. Except
with respect to the Assumed Liabilities, neither the Purchaser nor any of its
affiliates, will assume, be liable for, have any responsibility for or otherwise
become obligated in respect of any Liabilities or any other obligations of any
of the Sellers or arising out of, relating to or otherwise in respect of the
Business.
10. Except
with respect to the Assumed Liabilities, neither the Purchaser nor any of its
affiliates, shall have any liability arising from or under, relating to, or in
connection with Liens or Liabilities, whether known or unknown, contingent or
otherwise, existing as of the date hereof or hereafter arising.
11
11. To
the fullest extent available under applicable law, as now in effect or as may in
the future be in effect, the Purchaser shall be authorized, as of the Closing,
to operate under any license, permit, registration and governmental
authorization or approval of the Debtors with respect to the Purchased 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 as of the Closing.
12. Following
the Closing, no holder of any of the Liens or Liabilities shall interfere with
the Purchaser’s (or any of the Purchaser’s affiliates) title to or use and
enjoyment of the Purchased Assets based on or related to any such Liens or
Liabilities or based on any actions the Debtors may or may not take in the Cases
or any time thereafter.
13. All
persons and entities are prohibited and enjoined from taking any action to
adversely affect or interfere with the ability of the Sellers to transfer the
Purchased Assets to the Purchaser in accordance with the APA and this Sale
Order.
Assumption and Assignment of
the Purchased Contracts and the Purchased Leases
14. Each
of the Purchased Contracts and the Purchased Leases are executory contracts or
unexpired leases within the meaning of those terms in Section 365 of the
Bankruptcy Code or are otherwise assignable pursuant to Section 363 of the
Bankruptcy Code. The Debtors have not rejected any of the Purchased
Contracts or the Purchased Leases, and the time to assume each of the Purchased
Contracts and the Purchased Leases has not expired.
15. The
Sale Motion, insofar as it relates to the assumption and assignment of the
Purchased Contracts and the Purchased Leases, pursuant to Sections 363 and 365,
is hereby granted.
16. The
Debtors’ assumption of the Purchased Contracts and the Purchased Leases is
hereby approved pursuant to Section 365(a) of the Bankruptcy Code (and such
assumption shall be deemed to occur at the Closing).
12
17. The
Debtors are authorized and empowered to assign the Purchased Contracts and the
Purchased Leases to the Purchaser pursuant to Sections 363 and 365(f) of the
Bankruptcy Code and as contemplated in the APA.
18. The
Debtors’ assignment of the Purchased Contracts and the Purchased Leases to the
Purchaser, upon the terms and conditions of the APA, is hereby approved pursuant
to Sections 363 and 365 of the Bankruptcy Code (and such assignment shall be
deemed to occur at the Closing).
19. As
of the Closing, any and all defaults existing under Purchased Contracts or
Purchased Leases as of the Closing shall be deemed cured and no counterparty to
any Purchased Contract or Purchased Lease shall have any rights against the
Debtors, the Purchaser (or any of its affiliates) or under such Purchased
Contract or Purchased Lease on account of such defaults, except the right to
payment from Purchaser of any Assumed Cure Amount required to be paid with
respect to such Purchased Contract or Purchased Lease under the
APA.
20. The
Debtors and their estates shall have no liabilities or obligations under any
Purchase Contracts or Purchased Lease after the Closing Date.
13
21. Without
limiting the foregoing, as of the Closing, each of the Purchased Contracts and
the Purchased Leases shall remain in full force and effect for the benefit of
the Purchaser (and/or its affiliates), and shall be enforceable by the Purchaser
(and/or its affiliates) in accordance with their respective terms and
conditions, except that: (1) pursuant to Section 365(b)(2) of the Bankruptcy
Code, any defaults under the Purchased Contracts and the Purchased Leases
arising from the insolvency or financial condition of the Debtors at any time
before the Closing or resulting from the commencement by the Debtors of the
Cases, is of no force and effect, null and void, and unenforceable; (2) pursuant
to Section 365(f)(1) of the Bankruptcy Code, any defaults under the Purchased
Contracts and the Purchased Leases arising from the assignment thereof by the
Debtors to the Purchaser are of no force and effect, null and void, and
unenforceable; and (3) pursuant to Section 365(f)(3) of the Bankruptcy Code,
notwithstanding any provision of the Purchased Contracts and the Purchased
Leases or applicable law that terminates or modifies, or permits a party other
than the Debtors to terminate or modify, such Purchased Contracts and the
Purchased Leases or a right or obligation under such Purchased Contracts and the
Purchased Leases on account of an assignment of such Purchased Contracts and the
Purchased Leases, such Purchased Contracts and the Purchased Leases may not be
terminated or modified under such provision because of the assumption or
assignment of such Purchased Contracts and the Purchased Leases by the Debtors
to the Purchaser.
22. Each
of the non-debtor parties to the Purchased Contracts and the Purchased Leases
are forever barred, estopped and permanently enjoined from (A) asserting against
the Purchaser or its successors or assigns, (i) any default or breach under any
of the Purchased Contracts and the Purchased Leases existing as of the Closing
or otherwise relating to any acts or omissions of the Debtors existing on or
prior to the Closing including, without limitation, any events of default or
conditions or events which with the giving of notice or passage of time, or
both, could constitute a default or an event of default under any of the
Purchased Contracts and the Purchased Leases, (ii) any Liens or Liabilities,
other than Permitted Liens or Assumed Liabilities, and (iii) any
claims of lack of consent to the assumption or assignment of the Purchased
Contracts and the Purchased Leases, any claims that payment of any cure amounts
are owing (except the right to payment from Purchaser of any Assumed Cure
Amount) and/or any claim that conditions to assumption or assignment of the
Purchased Contracts and the Purchased Leases have not been satisfied, (B)
terminating, modifying or amending any Purchased Contract or Purchased Lease, or
declaring a breach or default under any Purchased Contract or Purchased Lease,
based upon (i) any default or breach under any of the Purchased Contracts and
the Purchased Leases existing as of the Closing or otherwise relating to any
acts or omissions of the Debtors existing on or prior to the Closing including,
without limitation, any events of default or conditions or events which with the
giving of notice or passage of time, or both, could constitute a default or an
event of default under any of the Purchased Contracts and the Purchased Leases,
and (ii) any Liens or Liabilities, other than Permitted Liens or
Assumed Liabilities, and (C) asserting against the Purchaser or its affiliates,
successors or assigns any counterclaim, defense, setoff, right of recoupment,
chargeback or any other claim asserted or assertable against the Debtors,
arising under or relating to or in connection with Purchased
Contracts and/or Purchased Leases and existing as of the Closing or
otherwise relating to any acts or omissions of the Debtors existing on or prior
to the Closing or arising by reason of the transactions contemplated under the
APA.
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23. The
failure of any non-debtor party to a Purchased Contract or Purchased Lease to
allege or assert, as part of a filed objection to the Sale Motion (i) any
termination of such Purchased Contract or Purchased Lease occurring on or before
the date of the Closing, (ii) any act or statement contrary to the factual
assertions set forth in the Sale Motion, or (iii) any objection or defense to
the entry of this Sale Order, shall forever bar such party, and its respective
successors and assigns, from asserting the same in any case, proceeding or
action, in law or equity, against the Debtors or the Purchaser (or their
respective affiliates, assignees or successors), and such claims shall be and
hereby forever are barred, terminated and extinguished.
24. The
conveyance and assignment of the Purchased Contracts and the Purchased Leases to
the Purchaser, in and of itself, shall provide each non-debtor counterparty to
such Purchased Contract and Purchased Lease with adequate assurance of future
performance under such Purchased Contract and Purchased Lease.
15
25. To
the extent any non-debtor counterparty to a Purchased Contract or Purchased
Lease has not filed an objection to the assumption by the Debtors and assignment
to the Purchaser of such Purchased Contract or Purchased Lease, such non-debtor
counterparty shall be deemed to have consented to the assumption and assignment
of such Purchased Contract or Purchased Lease.
26. Nothing
in this Sale Order, the Sale Motion, or in any notice or any other document is
or shall be deemed an admission by the Debtors that any Purchased Contract or
Purchased Lease is an executory contract or unexpired lease.
27. The
failure of the Debtors or the Purchaser (or any of its affiliates) to enforce at
any time one or more terms or conditions of any Purchased Contract or Purchased
Lease shall not be a waiver of such terms or conditions, or of the Debtors and
the Purchaser’s (or any of its affiliates) rights to enforce every term and
condition of such contract or lease.
28. The
Debtors’ rejection of the Rejected Contracts set forth on Exhibit __ hereto is
hereby approved pursuant to Bankruptcy Code Section 365, effective on and
subject to the occurrence of the Closing, without the need for any other notice
or Court order. The Debtors are hereby authorized to send a notice by
first-class mail to each non-debtor party to the Rejected Contracts informing
them of such rejection and of the last date by which such party may timely file
and serve a proof of claim with respect to such Rejected Contracts, which date
is hereby established as 4:00 p.m. (prevailing Eastern time) on the date that is
30 days following the Debtors’ service of such notice (the “Rejection Bar
Date”). Any party to a Rejected Contract that does not timely (i)
file with this Court a proof of claim for rejection damages or otherwise with
respect to such contract and (ii) also serve such claim upon the parties
designated in such notice to receive it, in each instance so that the proof of
claim is actually received by the Rejection Bar Date, shall be forever barred
from doing so thereafter, and any such claim shall not be enforceable against
the Debtors or their respective estates or assets.
16
Additional
Provisions
29. On
and after the Closing, each of the Debtors’ creditors asserting a Lien or
Liability with respect to the Purchased Assets is authorized and directed, upon
reasonable request by the Purchaser, to execute such documents and take all
other actions as may be necessary, as reasonably determined by the Purchaser, to
release its Lien or Liability, if any, against the Purchased Assets, as such
Lien or Liability may have been recorded or may otherwise exist.
30. This
Sale Order (a) is and shall be effective as a determination that all Liens and
Liabilities existing as to the Purchased Assets prior to the Closing have been
unconditionally released, discharged and terminated as of the Closing, and that
the conveyance of the Purchased Assets described herein has been effected, and
(b) is and shall be binding upon and shall 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 or other intellectual property,
administrative agencies, governmental departments, secretaries of state,
federal, state, 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 or otherwise record or release any documents or
instruments, or who may be required to report or insure any title or state of
title in or to any of the Purchased Assets.
17
31. Each
and every federal, state and local governmental agency or department is hereby
directed to accept any and all documents and instruments necessary and
appropriate to consummate the Sale contemplated in the APA.
32. If
any person or entity that has filed financing statements, mortgages, mechanic’s
liens, lis pendens, or other documents or agreements evidencing Liens on,
Liabilities or other interests in, the Purchased Assets shall not have delivered
to the Debtors prior to the Closing, in proper form for filing and executed by
the appropriate parties, termination statements, instruments of satisfaction,
releases of all Liens, Liabilities or other interests that the person or entity
has with respect to the Purchased Assets or otherwise, then (a) the Debtors
hereby are authorized and empowered to execute and file such statements,
instruments, releases and other documents on behalf of the person or entity with
respect to the Purchased Assets and (b) the Purchaser hereby is authorized to
file, register, or otherwise record a certified copy of this Sale Order which,
once filed, registered, or otherwise recorded, shall constitute conclusive
evidence of the release of all Liens, Liabilities and other interests of any
kind or nature whatsoever in the Purchased Assets.
33. To
the extent provided by Section 525 of the Bankruptcy Code, no governmental unit
may revoke or suspend any permit or license relating to the operation of the
Purchased Assets sold, transferred or conveyed to the Purchaser on account of
the filing or pendency of these Cases or the consummation of the transactions
contemplated by the APA.
34. All
entities who are presently, or as of the Closing may be, in possession of some
or all of the Purchased Assets are hereby directed to surrender possession of
said Purchased Assets to the Purchaser on the day of the
Closing.
18
35. Except
as otherwise expressly provided in the APA, the Purchaser is not assuming, nor
shall it any way whatsoever be liable or responsible, as a successor or
otherwise, for any liabilities, debts, commitments or obligations (whether known
or unknown, disclosed or undisclosed, absolute, contingent, inchoate, fixed or
otherwise) of the Debtors, or any liabilities, debts, commitments or obligations
in any way whatsoever relating to or arising from the Purchased Assets or the
Debtors’ use of the Purchased Assets on or prior to the Closing, or any such
liabilities, debts, commitments or obligations that in any way whatsoever relate
to periods on or prior to the Closing, or any liabilities calculable by
reference to the Debtors or its assets or operations, or relating to continuing
conditions existing on or prior to the Closing, which liabilities, debts,
commitments and obligations are hereby extinguished insofar as they may give
rise to successor liability, without regard to whether the claimant asserting
any such liabilities, debts, commitments and obligations has delivered to the
Purchaser a release thereof. Without limiting the generality of the
foregoing, except to the extent, if any, expressly provided in the APA, the
Purchaser shall not be liable or responsible, as successor or otherwise, for the
Debtors’ liabilities, debts, commitments or obligations arising prior to, on or
after the Closing and under or in connection with (a) any employment or labor
agreements, consulting agreements or severance pay, (b) any pension, welfare,
compensation or other employee benefit plans, agreements, practices and programs
including, without limitation, any pension plan of the Debtors, (c) the
cessation of the Debtors’ operations, dismissal of employees, or termination of
employment or labor agreements or pension, welfare, compensation or other
employee benefit plans, agreements, practices and programs, obligations that
might otherwise arise from or pursuant to the Employee Retirement Income
Security Act of 1974, as amended, the Fair Labor Standard Act, Title VII of the
Civil Rights Act of 1964, the Age Discrimination and Employment Act of 1967, the
Federal Rehabilitation Act of 1973, the National Labor Relations Act, the
Consolidated Omnibus Budget Reconciliation Act of 1985, or the Worker Adjustment
and Retraining Notification Act, (d) workmen’s compensation, occupational
disease or unemployment or temporary disability insurance claims, (e) any bulk
sales and similar law, (f) any liabilities, debts, commitments or obligations
of the Debtors for any taxes relating to the Debtors’ business or the
Purchased Assets for or applicable to the pre-Closing tax period, and (g) any
litigation including, but not limited to, litigation instituted against the
Debtors by their shareholders.
19
36. The
recitation, in the immediately preceding paragraph of this Sale Order, of
specific agreements, plans or statutes is not intended, and shall not be
construed, to limit the generality of the categories of liabilities, debts,
commitments or obligations referred to therein.
37. The
Court shall retain exclusive jurisdiction (a) to enforce and implement the terms
and provisions of the APA, all amendments thereto, any waiver and consents
thereunder, and of each of the agreements and instruments executed in connection
therewith, (b) to compel delivery of the Purchased Assets to the Purchaser, (c)
to resolve any disputes, controversies or claims arising out of or relating to
the APA, and (d) to interpret, implement, and enforce the provisions of this
Sale Order.
38. Nothing
contained in any plan of reorganization or liquidation confirmed in these
chapter 11 cases or any Order of this Court confirming such plan or any other
order entered in these chapter 11 cases shall conflict with or derogate from the
provisions of the APA or the terms of this Sale Order.
20
39. In
the absence of a stay pending appeal of this Sale Order, if the Purchaser and
the Debtors consummate the Sale at any time after entry of this Sale Order, then
with respect to the Sale, including any assumption or assignment of any
Purchased Contracts or Purchased Leases that are assumed and assigned pursuant
to this Sale Order, the Purchaser shall be deemed to be acting in “good faith”
and shall be entitled to the protections of Section 363(m) of the Bankruptcy
Code as to all aspects of the transactions under and pursuant to the APA if this
Sale Order or any authorization contained herein is reversed or modified on
appeal.
40. The
terms and provisions of the APA, together with the terms and provisions of this
Sale Order, shall be binding in all respects upon, and shall inure to the
benefit of, the Debtors, their estates and creditors, the Purchaser, its
affiliates, and their respective successors and assigns, and this Sale Order
shall be binding in all respects upon any affiliated third parties, and all
persons asserting a Claim against or interest in the Debtors’ estate or any of
the Purchased Assets. The APA shall be enforceable against and
binding upon, in accordance with its terms and conditions, and not subject to
rejection or avoidance by, the Debtors or any chapter 7 or chapter 11 trustee of
the Debtors and their estates as of the date hereof. Upon the
Closing, the Sale shall be enforceable against and binding upon, and not subject
to rejection or avoidance by, the Debtors or any chapter 7 or chapter 11 trustee
of the Debtors and their estates.
41. The
failure specifically to include any particular provisions of the APA in this
Sale Order shall not diminish or impair the effectiveness of such provisions, it
being the intent of the Court that the APA be authorized and approved in its
entirety.
42. The
APA and any related agreements, documents or other instruments may be modified,
amended or supplemented by the parties thereto in accordance with the terms
thereof without further order of the Court.
21
43. To
the extent of any inconsistency between the provisions of the Agreement, any
documents executed in connection therewith, and this Sale Order, the provisions
contained herein shall govern.
44. The
fourteen (14) day stay period provided for in Bankruptcy Rules 6004(h) and
6006(d) shall not be in effect with respect to the Sale and, thus, this Sale
Order shall be effective and enforceable immediately upon entry. Any
party objecting to this Sale Order must exercise due diligence in filing an
appeal and pursuing a stay or risk its appeal being foreclosed as moot in the
event the Purchaser and the Debtors elect to close prior to this Sale Order
becoming a final order.
Dated: _______________________,
2010
Wilmington,
Delaware
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|
HONORABLE
PETER J. WALSH
UNITED
STATES BANKRUPTCY
JUDGE
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22
IN
THE UNITED STATES BANKRUPTCY COURT
FOR
THE DISTRICT OF DELAWARE
)
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Chapter
11
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|
In
re:
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)
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|
)
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Case
No. 10-10684 (PJW)
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ORLEANS
HOMEBUILDERS, INC., et
al.,1
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)
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|
)
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Jointly
Administered
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Debtors.
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)
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)
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Re: Docket
No. _____
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ORDER
(A)(I) APPROVING SALE PROCEDURES AND BIDDING PROTECTIONS TO BE EMPLOYED IN
CONNECTION WITH THE PROPOSED SALE OF THE DEBTORS’ ASSETS, (II) SCHEDULING AN
AUCTION AND HEARING TO CONSIDER APPROVAL OF THE SALE OF THE DEBTORS’ ASSETS,
(III) APPROVING NOTICE OF THE RESPECTIVE DATES, TIMES, AND PLACES FOR AN AUCTION
AND FOR HEARING ON APPROVAL OF (a) SALE OF ASSETS, (b) ASSUMPTION AND ASSIGNMENT
OF CERTAIN EXECUTORY CONTRACTS AND UNEXPIRED
LEASES, AND (c) OTHER RELATED RELIEF
1
|
The Debtors in these chapter 11
cases, along with the last four digits of each Debtor’s tax identification
number, are: Orleans Homebuilders, Inc. (4323), Brookshire Estates, L.P.
(8725), Community Management Services Group, Inc. (6620), Greenwood
Financial Inc. (7510), Masterpiece Homes, LLC (1971), OHB Homes, Inc.
(0973), OHI Financing, Inc. (6591), OHI PA GP, LLC (2675), OPCNC, LLC
(8853), Orleans Arizona Realty, LLC (9174), Orleans Arizona, Inc. (2640),
Orleans at Bordentown, LLC (4968), Orleans at Cooks Bridge, LLC (4185),
Orleans at Covington Manor, LLC (9891), Orleans at Crofton Chase, LLC
(8809), Orleans at East Greenwich, LLC (9814), Orleans at Elk Township,
LLC (6891), Orleans at Evesham, LLC (7244), Orleans at Falls, LP (2735),
Orleans at Hamilton, LLC (9679), Orleans at Harrison, LLC (4155), Orleans
at Hidden Creek, LLC (3301), Orleans at Jennings Mill, LLC (4693), Orleans
at Lambertville, LLC (0615), Orleans at Limerick, LP (7791), Orleans at
Lower Salford, LP (9523), Orleans at Lyons Gate, LLC (2857), Orleans at
Mansfield LLC (1498), Orleans at Maple Glen LLC (7797), Orleans at Meadow
Glen, LLC (4966), Orleans at Millstone River Preserve, LLC (8810), Orleans
at Millstone, LLC (8063), Orleans at Moorestown, LLC (9250), Orleans at
Tabernacle, LLC (9927), Orleans at Thornbury, L.P. (4291), Orleans at
Upper Freehold, LLC (3225), Orleans at Upper Saucon, L.P. (3715), Orleans
at Upper Uwchlan, LP (8394), Orleans at Wallkill, LLC (2875), Orleans at
West Bradford, LP (4161), Orleans at West Vincent, LP (9557), Orleans at
Westampton Woods, LLC (8095), Orleans at Windsor Square, LP (9481),
Orleans at Woolwich, LLC (9215), Orleans at Wrightstown, LP (9701),
Orleans Construction Corp. (0893), Orleans Corporation (8770), Orleans
Corporation Of New Jersey (5325), Orleans DK, LLC (5308), Orleans RHIL, LP
(1938), Parker & Lancaster Corporation (1707), Parker & Orleans
Homebuilders, Inc. (5269), Parker Lancaster, Tidewater, L.L.C. (7432),
Realen Homes, L.P. (8293), RHGP LLC (8197), Sharp Road Farms Inc. (1871),
Stock Grange, LP (4027) and Wheatley Meadows Associates
(5459).
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The
above-captioned debtors and debtors-in-possession (collectively, the “Debtors”)
having requested by motion dated April 13, 2010 (the “Sale Motion”)2 (Docket No. [__]) orders
(A)(I) approving the sale procedures and bidding protections to be employed in
connection with the proposed sale (the “Sale”) of substantially all of the
Debtors’ assets (collectively, the “Purchased Assets”), (II) scheduling an
auction (the “Auction”) and a hearing (the “Sale Hearing”) to consider approval
of (i) the Sale, (ii) the assumption and assignment of certain executory
contracts and unexpired leases in connection with the Sale and the rejection of
other such executory contracts and unexpired leases, and (iii) other related
relief, and (III) approving the proposed notice of the respective dates, times,
and places for the Auction and for the Sale Hearing (the relief requested in
such items (A)(I) through (III) is collectively referred to herein as the
“Initial Relief”); and (B)(I) authorizing and approving a proposed asset
purchase agreement, dated as of April 13, 2010, with NVR, Inc. (the “Proposed
Buyer”), or such other purchaser(s) providing a higher or otherwise better offer
for the Purchased Assets, as approved by this Court at the Sale Hearing; (II)
authorizing the Sale of the Purchased Assets free and clear of all Liens and
Liabilities (other than the Permitted Liens and the Assumed Liabilities); (III)
authorizing the assumption and assignment of certain executory contracts and
unexpired leases in connection with the Sale and the rejection of other
executory contracts and unexpired leases; (IV) authorizing the Debtors to
consummate all transactions related to the above; and (V) granting other relief;
and this Court’s having conducted a hearing on May 4, 2010 to consider the
Initial Relief (the “Bidding Procedures Hearing”); and upon the record of the
Bidding Procedures Hearing and the Bankruptcy Cases; and it appearing that,
under the circumstances here, present, good, sufficient, and timely notice of
the relief sought and granted in this Order having been given, and good and
sufficient cause existing to have conducted the Bidding Procedures Hearing and
approve the Initial Relief; and it further appearing that no other or further
notice of the relief provided for herein need be given; and after due
deliberation and sufficient cause appearing therefor, it is hereby
2
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All capitalized terms not
otherwise defined herein shall have the meaning ascribed to them in the
Sale Motion, and, as applicable, any exhibits thereto (including the
APA).
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2
FOUND AND
DETERMINED THAT:
A. The
Court has jurisdiction over the Sale Motion pursuant to 28 U.S.C. §§ 157
and 1334. This matter is a core proceeding pursuant to 28 U.S.C. §
157(b)(2). Venue of the above-captioned Chapter 11 cases (the
“Cases”) and the Sale Motion in this District is proper under 28 U.S.C. §§ 1408
and 1409.
B. The
statutory and rule-based predicates for the relief sought in the Sale Motion are
Bankruptcy Code Sections 105, 363, and 365; Bankruptcy Rules 2002, 6003, 6004,
6006, 9007, and 9014; and Local Rule 6004-1.
C. The
findings and conclusions set forth herein constitute this 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 foregoing 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.
D. The
Debtors have articulated good and sufficient reasons for approving the Bidding
Procedures (including, without limitation, the payment of the Termination Fee
and the Expense Reimbursement, and requiring the Proposed Buyer to submit the
Deposit and any Qualified Bidder to submit a Bid Deposit) and the Auction and
Hearing Notice, in connection with the Sale of the Purchased
Assets. The Debtors have also demonstrated a compelling and sound
business justification for authorization to enter into the APA or to sell (in
their discretion) the Excluded Assets. 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.
3
E. The
Bidding Procedures, substantially in the form attached hereto as Exhibit 1, are fair,
reasonable, and appropriate and are designed to maximize the recovery on the
Purchased Assets. The APA and its terms and conditions and the
Bidding Procedures were negotiated in good faith and at arms’-length between the
Debtors and the Proposed Buyer and their respective legal and financial
advisors.
F. The
Auction and Hearing Notice, substantially in the form attached hereto as Exhibit 2, provides
due, adequate, and timely notice of the Auction, the Sale, and the other
transactions contemplated in the APA and the Sale Motion (collectively, the
“Transactions”), and all relevant objection deadlines, in accordance with
Bankruptcy Rule 2002 and the applicable provisions of the Bankruptcy
Code.
G. The
scope of the notice of the Sale Motion, the Bidding Procedures, the Auction, the
Sale, the Sale Hearing, and all the other Transactions proposed to be provided
by the Debtors in the Sale Motion and the Bidding Procedures constitutes due,
sufficient, and adequate notice to all parties-in-interest of the Auction, the
Sale, and all the other Transactions, and all relevant objection
deadlines. Such proposed notice of the Sale Motion, the Bidding
Procedures, the Auction, the Sale, the Sale Hearing, and all the other
Transactions is appropriate and reasonably calculated to provide all interested
parties with timely and proper notice and an opportunity to be heard, and no
other or further notice thereof is required.
4
H. The
notice to counterparties of the Purchased Contracts and the Purchased Leases
provided in accordance with the Bidding Procedures is reasonably calculated to
provide all counterparties to the Purchased Contracts and the Purchased Leases
with proper notice of the potential assumption and assignment of their executory
contract or unexpired lease and any Cure Amounts associated
therewith. The notice to counterparties to any other contracts and
leases to be rejected as provided in the Section 365 Notice with respect to
contracts and leases to be rejected by the Debtors in connection with the Sale
Order is reasonably calculated to provide all counterparties to such contracts
and leases with proper notice of the potential rejection of their executory
contract or unexpired lease.
I. The
Termination Fee and the Expense Reimbursement are essential inducements and
conditions relating to the Proposed Buyer’s entry into, and continuing
obligations under, the APA. Unless the Proposed Buyer is assured that
the Termination Fee and the Expense Reimbursement will be available, the
Proposed Buyer is unwilling to remain obligated to consummate the Transactions
or otherwise be bound under the APA (including the obligations to maintain its
committed offer while such offer is subject to higher or otherwise better offers
as contemplated by the Bidding Procedures). The Termination Fee and
the Expense Reimbursement induced the Proposed Buyer to submit a bid that will
serve as a minimum or floor bid at the Auction on which the Debtors, their
creditors, and other bidders can rely. The Proposed Buyer has
provided a material benefit to the Debtors and their creditors by increasing the
likelihood that the best possible purchase price for the Purchased Assets will
be received. Accordingly, the Termination Fee and the Expense
Reimbursement provide an actual benefit to the Debtors’ estates, are necessary
to preserve the Debtors’ estates, represent the best method for maximizing value
for the benefit of the Debtors’ estates, and are reasonable and appropriate
under the circumstances.
NOW,
THEREFORE, IT IS HEREBY:
5
ORDERED
that the Sale Motion is granted to the extent of the Initial Relief; and it is
further
ORDERED
that all objections to the Initial Relief that have not been withdrawn, waived,
or settled as announced to this Court at the Bidding Procedures Hearing or by
stipulation filed with this Court, are overruled and deemed dismissed with
prejudice; and it is further
ORDERED
that the Debtors are authorized to enter into the APA and sell the Purchased
Assets and/or the Excluded Developments by conducting the Auction in accordance
with the Bidding Procedures, which procedures are hereby approved in their
entirety and shall govern all bids and bid proceedings relating to the Purchased
Assets; and it is further
ORDERED
that the Debtors are authorized to take any and all actions necessary and/or
appropriate to implement the Bidding Procedures; and it is further
ORDERED
that the termination provisions of Article 4 of the APA, including, without
limitation, the Termination Fee and the Expense Reimbursement provisions of
Sections 4.6(c) and 4.6(d) of the APA, are hereby approved and shall be binding
upon the Debtors. The Termination Fee and the Expense Reimbursement
shall be paid by the Debtors, pursuant to the terms and conditions of the APA,
without any further approval or order of this Court, immediately upon the
closing of a Competing Transaction, provided, however, that the foregoing
shall not preclude payment of the Expense Reimbursement pursuant to the terms
and conditions of Section 4.6(c) of the APA. The Proposed Buyer shall
not waive the right to payment of the Termination Fee or the Expense
Reimbursement by bidding or rebidding at the Auction. The Termination
Fee and the Expense Reimbursement shall constitute administrative expense claims
pursuant to Bankruptcy Code Section 503(b); and it is further
6
ORDERED
that the form of the Auction and Hearing Notice is hereby approved in all
respects, and the Debtors are authorized to cause the Auction and Hearing Notice
to be served in the manner specified in the Bidding Procedures no later than 5
business days following the entry of this Order. Such service and the
other means of service as described in the Motion shall be deemed due, timely,
good, and sufficient notice of the entry of this Order, the Auction, the Sale
Motion, the Sale Hearing, the Bidding Procedures, the proposed Sale Order, the
proposed assumption and assignment of the Purchased Contracts and Purchased
Leases, the proposed rejection of the Rejected Contracts, and all of the
Transactions, and all proceedings to be held thereon and all relevant objection
deadlines; and it is further
ORDERED
that the Debtors are authorized, but not directed, to publish an abbreviated
version of the Auction and Hearing Notice prior to the Auction in an appropriate
publication or publications, to be determined by the Debtors, if they determine
that such publication is in the best interests of their estates; and it is
further
7
ORDERED
that all bids for the acquisition of the Purchased Assets must in writing,
comply with the Bidding Procedures, and be received by (1) BMO Capital Markets
Corp., 115 South LaSalle Street, 35th Floor, Chicago, Illinois 60603,
Attn: Mr. Scott W. Humphrey, Executive Managing Director and Head of
U.S. M&A, (2) Lieutenant Island, 5 Leonard Road, Bronxville, New York 10708,
Attn.: Mr. Richard Thaler, and (3) the CRO, c/o PMCM, LLC, 110 Chadds
Ford Commons, Chadds Ford, Pennsylvania 19317, Attn.: Mr. Mitchell
Arden and Mr. Vincent Colistra, with a copy to (a) co-counsel to the Debtors,
(i) Cahill Gordon & Reindel llp,
Eighty Pine Street, New York, New York 10112-2200, Attn: Joel H. Levitin, Esq.,
and (ii) Elliott Greenleaf, 1105 North Market Street, Suite 1700, Wilmington,
Delaware 19801, Attn.: Rafael X. Zahralddin, Esq.; (b) the Office of the United
States Trustee for the District of Delaware, 844 King Street, Room 2207,
Wilmington, Delaware 19801, Attn.: David Buchbinder, Esq.; (c) counsel to the
agent for the Debtors’ primary pre-petition secured lenders, (i) Reed Smith LLP,
1201 Market Street, Suite 1500, Wilmington, Delaware 19801, Attn.: Mark W.
Eckard, Esq., and (ii) Reed Smith LLP, One Liberty Place, 1650 Market Street,
Philadelphia, Pennsylvania 19103-7301, Attn.: Claudia Z. Springer, Esq. and
Scott M. Esterbrook, Esq.; (d) [proposed] counsel to the Creditors Committee,
(i) Duane Morris LLP, 1100 North Market Street, Suite 1200, Wilmington, Delaware
19801, Attn.: Richard W. Riley, Esq. and Sommer L. Ross, Esq., (ii)
Duane Morris LLP, 1540 Broadway, New York, New York 10036-4086,
Attn.: Gerard S. Catalanello, Esq. and James J. Vincequerra, Esq.,
(iii) Duane Morris LLP, 30 South 17th Street, Philadelphia, Pennsylvania
19103-4196, Attn.: Lawrence J. Kotler, Esq., and (e) co-counsel to
the Proposed Buyer, (i) Hogan & Hartson LLP, 875 Third Avenue, New York, NY
10022, Attn.: Ira S. Greene, Esq. and Scott A. Golden, Esq., and (ii) Potter
Anderson & Corroon LLP, 1313 North Market Street, Wilmington, Delaware
19899, Attn.: Steven M. Yoder, Esq., no later than 12:00 noon (prevailing
Eastern Time) on June 16, 2010 (the “Bidding Deadline”); and it is
further
ORDERED
that each Initial Competing Bid must not contain any contingencies to closing
that are not also set forth in Article IX of the APA, including, without
limitation, any contingencies for financing, diligence, board approval, or
similar contingencies or conditions; and it is further
ORDERED
that the Debtors have the right to reject any and all Competing Bids at their
discretion in the exercise of their business judgment; and it is
further
8
ORDERED
that the form of the APA substantially attached as Exhibit A to the Sale Motion
is approved and shall be the form of any such agreement utilized in connection
with the Sale of the Purchased Assets and all other Transactions in connection
therewith; and it is further
ORDERED
that the Sale shall be on an “as is, where is” basis and without representations
or warranties of any kind, nature, or description by the Debtors, their agents,
or their estates, except to the extent expressly set forth in the APA with the
Proposed Buyer or the Winning Competing Bidder, as the case may be; and it is
further
ORDERED
that if, in addition to the Qualified Bid of the Proposed Buyer as embodied in
the APA, one or more Qualified Bids are received by the Bidding Deadline (a
“Competing Bid”), the Auction will be conducted at the offices of Cahill Gordon
& Reindel llp,
Eighty Pine Street, New York, New York 10005-1702, or at another location as may
be timely disclosed by the Debtors to the Qualified Bidders, on or about 9:30
a.m. (prevailing Eastern Time) on June 23, 2010 (the “Auction
Date”). If, however, (i) the only Qualified Bid the Debtors have
received by the Bidding Deadline (unless the Debtors have extended such deadline
in accordance with the terms of the Bidding Procedures) is the Proposed Buyer’s
Qualified Bid as set forth in the APA, then the Auction will not be held, and
the Proposed Buyer shall be deemed the Winning Bidder, and the Debtors will be
authorized to seek approval thereof at the Sale Hearing; and it is
further
ORDERED
that the Debtors may, in their discretion, consider bids for the Excluded
Developments and may in their discretion seek this Court’s authorization to
consummate a sale thereof free and clear of all Liens at the Sale Hearing; and
it is further
9
ORDERED
that to the extent that the Initial Bid of the Proposed Buyer as embodied in the
APA is not the Winning Competing Bid at any Auction, the Debtors are authorized
to file with this Court and serve a supplement (the “Supplement”), as promptly
as is reasonably practicable prior to the Sale Hearing, that will inform this
Court of the results of the Auction, the Winning Competing Bid(s), and the
Second Place Bid(s). The Supplement would identify, among other
things, (a) the Winning Competing Bidder as the proposed purchaser(s) of the
Purchased Assets, (b) the consideration to be paid by such purchaser(s) for the
Purchased Assets, and (c) any executory contracts and unexpired leases to be
assumed and assigned to the purchaser(s) in connection with the Sale (to the
extent different from the Assigned Agreements proposed to be assumed and
assigned to the Proposed Buyer under the APA). In addition, the
Debtors would attach to the Supplement, as exhibits, (a) any revised proposed
order approving the Sale and (b) copies of the asset purchase agreement(s)
entered into by the Debtors and the Winning Competing Bidder(s), and (c) the
Winning Competing Bidder’s Adequate Assurance Package; and it is
further
ORDERED
that the Debtors have the right to (a) amend and/or impose additional terms
and/or conditions at or prior to the Auction (other than the requirements for a
Qualified Bid set forth in the Bidding Procedures and the right of the Proposed
Buyer to make a revised higher or better offer at any time during the Auction)
that they believe will better promote the goals of the Auction and be in the
best interests of their estates, and do not otherwise conflict with the terms
and requirements set forth in the APA and (b) subject to the terms of the APA,
extend the deadlines set forth in the Bidding Procedures and/or adjourn the
Auction at the Auction and/or the Sale Hearing in open court or on this Court’s
calendar on the date scheduled for said hearing without further notice to
creditors or parties-in-interest; and it is further
10
ORDERED
that each Competing Bid must fully disclose the identity of all other entities,
if any, which shall be acquiring directly or indirectly after the Closing, a
portion of the Purchased Assets under or in connection with a Bid that has been
submitted. Each Competing Bidder is required to confirm that it has
not engaged in any collusion with respect to the bidding or the proposed Sale,
except that different parties may (with the Debtors’ permission, at their
discretion following a request therefor by the potential joint bidders upon full
notification of the entities involved) combine Bids into a joint bid; and it is
further
ORDERED
that all Bids submitted on or prior to the Bidding Deadline, as may be modified
by a Bidder at the Auction, shall remain open and irrevocable until the Sale
Hearing; provided,
however, that the
Winning Competing Bid and the Second Place Bid shall be deemed to remain open
and irrevocable until the actual closing of the transaction that is the subject
of such Bid (subject to the terms and conditions of the APA with respect to the
Proposed Buyer). Acceptance of a Qualified Bid shall, in all
respects, be subject to entry of an order by this Court that, among other
things, authorizes the Debtors to consummate a sale to the Winning Competing
Bidder. Following the Sale Hearing, if the Proposed Buyer or any
Winning Competing Bidder (as the case may be) fails to consummate an approved
sale because of a breach or failure to perform on its part, the next highest or
otherwise best Qualified Bid, as disclosed at the Auction (the “Second Place
Bid”), shall be deemed to be the Winning Competing Bid, and the Debtors shall be
authorized, but not required (except if the Second Place Bid is made by the
Proposed Buyer), to consummate the Sale with the Qualified Bidder submitting
such Second Place Bid (i) without the need for further notice or order of this
Court and (ii) without prejudice to the Debtors’ right to seek all available
damages from the defaulting bidder (be it the Proposed Buyer or the Winning
Competing Bidder at the Auction, including the party that makes the Second Place
Bid, as the case may be); and it is further
11
ORDERED
that the Debtors are authorized to cause the Section 365 Notice to be filed with
this Court and served in the manner set forth in the Bidding Procedures no later
than 10 days following the entry of this Order; and it is further
ORDERED
that the Sale Hearing shall be held at the United States Bankruptcy Court for
the District of Delaware, 824 Market Street, 6th Floor, Courtroom #2,
Wilmington, Delaware 19801, on or about June 24, 2010 at __:__ _.m. (prevailing
Eastern Time), or as soon thereafter as counsel may be heard (the “Sale Hearing
Date”); and it is further
ORDERED
that, except as otherwise set forth herein, objections, if any, to the remaining
relief sought in the Sale Motion must be in writing, stating with particularity
the grounds for such objections or other statements of position, comply with the
Bankruptcy Code, the Bankruptcy Rules and the Local Rules, and be filed and
served so as to be actually received by co-counsel to the Debtors, counsel to
the Agent, the United States Trustee, co-counsel to the Proposed Buyer, and
[proposed] counsel to the Creditors Committee, so that they are actually received by 4:00
p.m. (prevailing Eastern Time) on the date that is 7 days prior to the Sale
Hearing Date; and it is further
ORDERED
that objections, if any, to the information contained in the Supplement must be
in writing, comply with the Bankruptcy Code, the Bankruptcy Rules and the Local
Rules, and be filed and served so as to be actually received by co-counsel to
the Debtors, counsel to the Agent, the United States Trustee, and [proposed]
counsel to the Creditors Committee, so that they are actually received by noon on
the date that is one day prior to the Sale Hearing Date; and it is
further
12
ORDERED
that the procedures set forth in the Sale Motion for the assumption and
assignment of contracts and leases, or the rejection thereof, are hereby
approved; and its is further
ORDERED
that upon written request to the Debtors’ counsel by a party to a contract or
lease proposed to be assumed and assigned to the Proposed Buyer or the Winning
Competing Bidder, as applicable, the Debtors will provide to such party evidence
of the ability of the Proposed Buyer or the Winning Competing Bidder, as
applicable, to provide adequate assurance of future performance under such
contract or lease; and it is further
ORDERED
that objections, if any, that relate to (i) the proposed assumption and
assignment of an Assigned Agreement (including, but not limited to, any
objections relating to the validity of the Proposed Cure Amount as determined by
the Debtors or otherwise to assert that any amounts, defaults, conditions, or
pecuniary losses must be cured or satisfied under any of the assigned executory
contracts or unexpired leases, not including accrued but not yet due
obligations, in order for such contract to be assumed and/or assigned) or (ii)
the rejection of a Rejected Contract, as applicable (a “Section 365 Objection”)
must be in writing, comply with the Bankruptcy Code, the Bankruptcy Rules and
the Local Rules, state the basis of such objection with specificity, including,
without limitation, the cure amount alleged by such counterparty (if
applicable), and include contact information for such counterparty, and be filed
and served so as to be actually received by co-counsel to the Debtors, counsel
to the Agent, the United States Trustee, co-counsel to the Proposed Buyer, and
[proposed] counsel to the Creditors Committee, so that they are actually received by 4:00
p.m. (prevailing Eastern Time) on the date that is 10 days prior to the Sale
Hearing Date, or in the case of Additional Contracts, within 10 days after
receipt of a Section 365 Notice with respect thereto (as applicable, the
“Section 365 Objection Deadline”).; and it is further
13
ORDERED
that, unless a Section 365 Objection is filed and served by a party to (a) an
Assigned Agreement or a party interested in an Assigned Agreement or (b) a
Rejected Contract, as applicable, by the Section 365 Objection Deadline, all
interested parties that have received actual or constructive notice thereof
shall be deemed to have waived and released any right to assert a Section 365
Objection and to have otherwise consented to either (i) the assignment of the
applicable Assigned Agreement and shall be forever barred and estopped from
asserting or claiming against the Debtors, the Purchased Assets, the Proposed
Buyer, or the Winning Competing Bidder (as the case may be), or any other
assignee of the applicable Assigned Agreement, that any additional amounts are
due or defaults exist, or conditions to assignment must be satisfied, under such
Assigned Agreement for the period prior to the Sale Hearing Date, or (ii) the
rejection of a Rejected Contract, as applicable; and it is further
ORDERED
that hearings with respect to any Section 365 Objections may be held (a) at the
Sale Hearing or (b) at such other date as this Court may designate, provided
that if the applicable Assigned Agreement is assumed and assigned by order of
this Court, the cure amount shall be paid in accordance with the terms of the
APA or, if the Winning Bidder is a party other than the Proposed Buyer, as this
Court may direct pending further order of this Court; and it is
further
ORDERED
that a properly filed and served Section 365 Objection shall not constitute an
objection to the remaining relief generally requested in the Motion; and it is
further
14
ORDERED
that to the extent this Order is inconsistent with any prior order or pleading
with respect to the Sale Motion in the Bankruptcy Cases, the terms of this Order
shall govern; and it is further
ORDERED
that notwithstanding Bankruptcy Rules 6004, 6006, 7062, 9014, or otherwise, the
terms and conditions of this Order shall be effective and enforceable
immediately upon entry and its provisions shall be self-executing; and it is
further
ORDERED
that all time periods set forth in this Order shall be calculated in accordance
with Bankruptcy Rule 9006(a); and it is further
ORDERED
that this Court shall retain jurisdiction with respect to all matters arising
from or related to the implementation of this Order, including to resolve any
dispute relating to the interpretation of the terms and conditions of the APA
and this Order.
Dated: ______________________,
2010
Wilmington,
Delaware
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HONORABLE
PETER J. WALSH
UNITED
STATES BANKRUPTCY
JUDGE
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15
IN
THE UNITED STATES BANKRUPTCY COURT
FOR
THE DISTRICT OF DELAWARE
)
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Chapter
11
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In
re:
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)
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)
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Case
No. 10-10684 (PJW)
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ORLEANS
HOMEBUILDERS, INC., et
al.,1
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)
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)
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Jointly
Administered
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Debtors.
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)
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)
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Obj.
Deadline: April 27, 2010 at 4:00 p.m.
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)
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Hearing
Date: May 4, 2010 at 10:30
a.m.
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MOTION
OF THE DEBTORS FOR ORDERS (A)(I) APPROVING SALE PROCEDURES AND BIDDING
PROTECTIONS TO BE EMPLOYED IN CONNECTION WITH THE PROPOSED SALE OF SUBSTANTIALLY
ALL OF THE DEBTORS’ ASSETS, (II) SCHEDULING AN AUCTION AND HEARING TO CONSIDER
APPROVAL OF THE SALE OF SUBSTANTIALLY ALL OF THE DEBTORS’ ASSETS, AND (III)
APPROVING NOTICE OF THE RESPECTIVE DATES, TIMES, AND PLACES FOR AUCTION AND FOR
HEARING ON APPROVAL OF (1) SALE OF SUBSTANTIALLY ALL ASSETS, AND (2)
ASSUMPTION AND ASSIGNMENT OF CERTAIN EXECUTORY CONTRACTS AND UNEXPIRED LEASES;
AND (B)(I) AUTHORIZING AND APPROVING AN ASSET PURCHASE AGREEMENT WITH NVR, INC.,
OR SUCH OTHER PURCHASER(S) PROVIDING HIGHER OR OTHERWISE BETTER OFFER(S); (II)
AUTHORIZING THE SALE OF SUBSTANTIALLY ALL OF THE DEBTORS’ ASSETS, FREE AND CLEAR
OF ALL LIENS, CLAIMS, ENCUMBRANCES, AND OTHER INTERESTS; (III) AUTHORIZING THE
ASSUMPTION AND ASSIGNMENT OF CERTAIN EXECUTORY CONTRACTS AND UNEXPIRED LEASES
AND THE REJECTION OF OTHER EXECUTORY CONTRACTS; (IV) AUTHORIZING THE DEBTORS TO
CONSUMMATE ALL TRANSACTIONS RELATED TO THE
ABOVE; AND (V) GRANTING OTHER RELIEF
1
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The Debtors in these chapter 11
cases, along with the last four digits of each Debtor’s tax identification
number, are: Orleans Homebuilders, Inc. (4323), Brookshire Estates, L.P.
(8725), Community Management Services Group, Inc. (6620), Greenwood
Financial Inc. (7510), Masterpiece Homes, LLC (1971), OHB Homes, Inc.
(0973), OHI Financing, Inc. (6591), OHI PA GP, LLC (2675), OPCNC, LLC
(8853), Orleans Arizona Realty, LLC (9174), Orleans Arizona, Inc. (2640),
Orleans at Bordentown, LLC (4968), Orleans at Cooks Bridge, LLC (4185),
Orleans at Covington Manor, LLC (9891), Orleans at Crofton Chase, LLC
(8809), Orleans at East Greenwich, LLC (9814), Orleans at Elk Township,
LLC (6891), Orleans at Evesham, LLC (7244), Orleans at Falls, LP (2735),
Orleans at Hamilton, LLC (9679), Orleans at Harrison, LLC (4155), Orleans
at Hidden Creek, LLC (3301), Orleans at Jennings Mill, LLC (4693), Orleans
at Lambertville, LLC (0615), Orleans at Limerick, LP (7791), Orleans at
Lower Salford, LP (9523), Orleans at Lyons Gate, LLC (2857), Orleans at
Mansfield LLC (1498), Orleans at Maple Glen LLC (7797), Orleans at Meadow
Glen, LLC (4966), Orleans at Millstone River Preserve, LLC (8810), Orleans
at Millstone, LLC (8063), Orleans at Moorestown, LLC (9250), Orleans at
Tabernacle, LLC (9927), Orleans at Thornbury, L.P. (4291), Orleans at
Upper Freehold, LLC (3225), Orleans at Upper Saucon, L.P. (3715), Orleans
at Upper Uwchlan, LP (8394), Orleans at Wallkill, LLC (2875), Orleans at
West Bradford, LP (4161), Orleans at West Vincent, LP (9557), Orleans at
Westampton Woods, LLC (8095), Orleans at Windsor Square, LP (9481),
Orleans at Woolwich, LLC (9215), Orleans at Wrightstown, LP (9701),
Orleans Construction Corp. (0893), Orleans Corporation (8770), Orleans
Corporation Of New Jersey (5325), Orleans DK, LLC (5308), Orleans RHIL, LP
(1938), Parker & Lancaster Corporation (1707), Parker & Orleans
Homebuilders, Inc. (5269), Parker Lancaster, Tidewater, L.L.C. (7432),
Realen Homes, L.P. (8293), RHGP LLC (8197), Sharp Road Farms Inc. (1871),
Stock Grange, LP (4027) and Wheatley Meadows Associates
(5459).
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The
above-captioned debtors and debtors-in-possession (collectively, the “Debtors”),
by and through their undersigned co-counsel, submit this motion (the “Motion”)
for entry of orders (A)(I) approving the proposed sale procedures and bidding
protections to be employed in connection with the proposed sale (the “Sale”) of
substantially all of the Debtors’ assets (collectively, the “Purchased
Assets”),2 (II)
scheduling an auction (the “Auction”) and a hearing (the “Sale Hearing”) to
consider approval of (i) the Sale, (ii) the assumption and assignment of certain
executory contracts and unexpired leases in connection with the Sale and the
rejection of other such executory contracts and unexpired leases, and (iii)
other related relief, and (III) approving the proposed notice of the respective
dates, times, and places for the Auction and for the Sale Hearing, as well as
the deadline for objecting to the proposed Sale and all related relief (the
relief requested in such items (A)(I) through (III) is collectively referred to
herein as the “Initial Relief”); and (B)(I) authorizing and approving a proposed
asset purchase agreement with NVR, Inc. (the “Proposed Buyer”), or such other
purchaser(s) providing a higher or otherwise better offer for the Purchased
Assets, as approved by this Court at the Sale Hearing; (II) authorizing the Sale
free and clear of all liens, claims, encumbrances, and other interests (other
than the Permitted Liens); (III) authorizing the assumption and assignment of
certain executory contracts and unexpired leases in connection with the Sale and
the rejection of other executory contracts and unexpired leases; (IV)
authorizing the Debtors to consummate all transactions related to the above; and
(V) granting other relief; and in support thereof, respectfully state as
follows:
2
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The Debtors note that the Sellers
under the APA include the Debtors and certain non-debtor parties, OHI PA,
LLC and OHI NJ,
LLC.
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2
SUMMARY OF
MOTION
1. As
described further below, as a result of the country’s prolonged and severe
recession, which has particularly affected the homebuilding industry, the
Debtors have faced severe liquidity shortages and other operational challenges
for more than a year. These difficulties have impaired their ability
to operate normally, creating uncertainty amongst potential homebuyers and the
Debtors’ major vendors and suppliers. They also led to events of
default under their Senior Secured Credit Agreement (as defined below) and
caused the Debtors to miss certain scheduled payments under their junior
subordinated notes.
2. In
light of these concerns and the resultant need to achieve new funding, the
Debtors and their advisors explored various potential restructuring
alternatives, with respect to both their existing debt and their
operations.
3. Specifically,
in an attempt to alleviate their liquidity constraints, the Debtors engaged in
negotiations over several months with the lenders under the Senior Secured
Credit Agreement (the “Senior Secured Lenders”), in the hope of entering into an
amended and restated credit facility or some other permanent modification of, or
accommodation under, that agreement. Despite these efforts, and the
Senior Secured Lenders’ consenting to various waivers and amendments to the
agreement, the Debtors were unable achieve any such long-term
restructuring. As a result, the Senior Secured Credit Agreement
matured according to its terms. The Debtors were also otherwise
unable to obtain any significant new capital, in the form of either new loans or
equity infusions.
4. As
an alternative means of alleviating their liquidity and operational constraints,
the Debtors also began to market their business and their assets several months
prior to the commencement of these Chapter 11 cases. In December of
2008, they retained BMO Capital Markets Corp. (“BMOCM”) as their M&A
advisors, and Lieutenant Island Partners LLC (“Lieutenant Island”) as a
consultant and financial advisor.3 Prior to and
after the Petition Date, the Debtors and their advisors have contacted
approximately 138 potential investors and/or acquirers in connection with these
efforts, 22 of which have signed non-disclosure agreements and already started
due diligence. The Debtors had also entered into a non-binding letter
of intent with a third party (that is not the Proposed Buyer) prior to the
Petition Date, with respect to a potential acquisition that could have occurred
either in or out of bankruptcy.
3
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Specifically,
the Debtors retained BMOCM pursuant to the terms of an engagement letter,
dated December 4, 2008, that was subsequently amended on by an agreement
dated August 25, 2009, and then further amended by letter agreements,
dated February 26, 2010, and March 24, 2010. The Debtors
retained Lieutenant Island pursuant to a letter agreement dated December
5, 2008. The Debtors have also engaged FTI Consulting, Inc., as
their financial advisor since August of 2009. On the Petition
Date, the Debtors filed applications to retain BMOCM, FTI, and Lieutenant
Island, which were approved by the Bankruptcy Court (as modified) at a
hearing on April 6, 2010.
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3
5. However,
the Debtors were not able to reach an agreement with that third party, or any
other buyer willing to acquire their assets outside of a “free and clear”
bankruptcy sale, prior to the maturation of the Senior Secured Credit Agreement,
and the Senior Secured Lenders did not provide the required unanimous consent to
a further extension thereof. Accordingly, the Debtors and the Senior
Secured Lenders determined that filing for Chapter 11 relief and pursuing a sale
under Bankruptcy Code Section 363 would be the optimal course of action to
maximize value and provide a long-term solution for the Debtors’
circumstances.
6. The
Debtors commenced these cases (the “Bankruptcy Cases”) on March 1, 2010 (the
“Petition Date”). On or about March 4, 2010, in order to satisfy one
of the conditions precedent to funding under their debtor-in-possession credit
facility, the Debtors selected Mr. Mitchell Arden of PMCM, LLC (“PMCM”) to serve
as their Chief Restructuring Officer (the “CRO”). The CRO has since
taken control of the Debtors’ business operations, as well as their efforts to
complete a sale or other disposition of all or substantially all of their
assets.4
4
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The Debtors filed an application
on March 10, 2010, authorizing their entry into an engagement letter with
PMCM and the appointment of the CRO, nunc pro
tunc to March
4. That application was approved by the Bankruptcy Court
following a hearing on April 6,
2010.
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4
7. The
Debtors continued their marketing efforts after the Petition
Date. After further negotiations with the party who signed the
pre-petition letter of intent as well as the Proposed Buyer,5 they have now accepted an
offer from, and entered into an Asset Purchase Agreement, dated as of April 13,
2010 with, the Proposed Buyer (including all exhibits and attachments thereto,
and as the same may be amended or supplemented from time to time, the “APA,” a
copy of which is attached hereto as Exhibit A).6 As described
further below, pursuant to the APA, the Proposed Buyer has agreed to buy the
Purchased Assets, subject to higher and better offers to be solicited prior to
and at the Auction and subject to the approval of the Bankruptcy Court, among
other terms and conditions, for a base purchase price of $170,000,000 in cash
(subject to certain post-closing adjustments, including a reduction for the
aggregate amount of all Sellers’ Assumed Cure Amounts (as defined below)), plus
the assumption of certain liabilities, including liabilities relating to amounts
outstanding under the contracts and leases to be assumed and assigned in
connection with the sale.
8. As
more fully set forth below, the Debtors have determined that, under their
present circumstances, pursuing the Sale to the Proposed Buyer, subject to
higher and better offers and otherwise under the terms and conditions proposed
herein, represents the best opportunity to address their liquidity and
operational problems and to maximize the value of the Debtors’ estates for the
benefit of their creditors and all other
parties-in-interest. Accordingly, by this Motion, the Debtors request
that the Bankruptcy Court schedule a hearing (the “Bidding Procedures Hearing”)
to be conducted at the Debtors’ next-scheduled omnibus hearing date (May 4,
2010, which is approximately 21 days following the date
hereof), to consider the approval of the Initial Relief, which includes approval
of (i) the Bidding Protections (as defined below) for the proposed Buyer and
setting a deadline, requirements, and Bidding Procedures (as defined below) for
interested parties to submit competing bids for the purchase of the Purchased
Assets, and (ii) the form and manner of notice of the Bidding Procedures
Hearing.
5
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The
Debtors note that although the Proposed Buyer is not the same party that
signed the pre-petition non-binding letter of intent, they hope to
continue to engage that party in the ongoing bidding process, in
accordance with the Bidding Procedures (as defined
below).
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6
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All capitalized terms not
otherwise defined herein shall have the meanings ascribed to them in the
APA.
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5
9. The
Debtors further request that the Bankruptcy Court approve the Sale to the
Proposed Buyer or to such other party or parties who submit a higher or
otherwise better offer(s) for the Purchased Assets at the Auction, free and
clear of all Liens and Liabilities (other than the Permitted Liens and the
Assumed Liabilities), and the assumption and assignment of certain executory
contracts and unexpired leases in connection with the Sale and the rejection of
other executory contracts and unexpired leases, among other related relief in
connection with consummating all of the transactions related to the
above. The relief set forth in this paragraph would not be addressed
at the Bidding Procedures Hearing, but at the Sale Hearing, which the Debtors
hereby request be scheduled for on or about June 24, 2010.
BACKGROUND
The Bankruptcy Cases,
Jurisdiction, And Venue
10. On
the Petition Date, each of the Debtors filed with the Bankruptcy Court separate,
voluntary petitions for relief under Chapter 11 of the Bankruptcy Code, and on
March 3, 2010, the Bankruptcy Court entered an order approving the joint
administration of the Bankruptcy Cases.
11. The
Debtors continue to manage their properties and operate their business as
debtors-in-possession pursuant to Bankruptcy Code Sections 1107 and
1108. No trustee or examiner has been appointed in the Bankruptcy
Cases.
12. On
March 11, 2010, the Office of the United States Trustee appointed the members of
the official committee of unsecured creditors in the Bankruptcy Cases (the
“Creditors Committee”).
6
The Debtors and their
Business7
13. The
Debtors build, develop, market, and sell single-family homes, townhouses, and
condominiums to various segments of the homebuyer market. The Debtors
also regularly purchase land and finished lots for development, improve land to
be ready for home construction, obtain land entitlements, and invest in joint
venture projects with other homebuilders.
14. The
Debtors pride themselves on building high-quality and affordable homes, using a
combination of production-style construction techniques and a design center
customization marketing approach. Indeed, they have won various
awards, including JD Power and Associates awards for home quality and designs in
various divisions, and top rankings for being one of the fastest growing
homebuilders from Builder magazine, one of the
largest homebuilders from Big
Builder magazine, and best homebuilder companies to work for from Professional Builder
magazine, as well as various other product design and community of the year
awards in various divisions from similar publications and homebuilding trade
groups.
15. The
Debtors have developments or projects in the following regions (each a “Region,”
and collectively, the “Regions”): (a) the North (including
southeastern Pennsylvania, central and southern New Jersey, and Orange County,
New York); (b) the South (including Charlotte, Raleigh, and Greensboro, North
Carolina, including adjacent counties in South Carolina, and Richmond and
Tidewater, Virginia); (c) the Midwest (including Chicago, Illinois); and (d)
Florida (including Orlando, Florida). The Debtors’ operations in
Pennsylvania and New Jersey date back more than 90 years, and they have operated
in Florida on and off since 1970. The Debtors have been in business
in Virginia, North Carolina, and South Carolina since approximately
2000. Over the years, the Debtors have acquired other homebuilders,
including Masterpiece Homes (Florida), Parker Lancaster Corporation (North
Carolina and Virginia), and Realen Homes (Illinois and
Pennsylvania).
7
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The description set forth herein
is solely a summary of the Debtors, their corporate and capital structure,
their operations, and the events leading to these Chapter 11
cases. For more information, please review the Debtors’ public
filings with the Securities and Exchange Commission, accessible at
http://www.sec.gov and at http://www.orleanshomes.com, as well as pleadings previously
filed with this
Court.
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7
16. Most
of the Debtors’ projects are “master-planned” residential communities where the
Debtors purchase plots of land, obtain the necessary approvals, build several
model homes and “spec” (constructed but unsold) homes, and then build additional
“backlog” homes upon entering into sales contracts with
homebuyers. The Debtors typically act as a general contractor and
employ subcontractors to construct homes and install site
improvements. The Debtors’ agreements with subcontractors typically
provide for a fixed price for work performed and materials
supplied. The Debtors do not manufacture any of the materials or
other items used in the development of their communities.
17. The
Debtors have various non-debtor direct and indirect subsidiaries (the
“Non-Debtor Subsidiaries”)8 that, among other things,
offer supplemental services to homebuyers, including real estate brokerage,
title and closing, and mortgage broker services. The Debtors provide
administrative support for certain of the Non-Debtor Subsidiaries, including,
for example, payroll and accounting services.
18. For
the six months ending December 31, 2009, the Debtors delivered 356 homes to
homebuyers, generating approximately $132.7 million in revenue. For
the same period, the Debtors recorded net new orders for 369 homes in the amount
of approximately $134.5 million. As of December 31, 2009, the Debtors
had approximately 589 homes in inventory, consisting of approximately 345
backlog units, 184 spec homes, and 60 owned model homes.
8
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These entities have not filed
Chapter 11 petitions: Alambry Funding, Inc.; A. P. Orleans
& Co.; A. P. Orleans, Incorporated (PA); A. P. Orleans, Incorporated
(NJ); A. P. Orleans Real Estate Co., Inc.; Greenwood Orleans, Inc.; Lucy
Financial, Inc.; Masterpiece Homes & Properties, Inc.; Meadows at Hyde
Park, LLC; Moorefield Title Agency, L.C.; OAH Manager LLC; OHI NJ, LLC;
OHI PA, LLC; OHI South Service Corp.; Orleans Abstract Member, LLC;
Orleans Affordable Housing LP; Orleans Air LLC; Orleans Arizona
Construction, LLC; Orleans at Aston, L.P.; Orleans at Dolington, L.P.;
Orleans at Florence, LLC; Orleans at Horsham, LP; Orleans at Illinois,
LLC; Orleans at Lower Makefield, LP; Orleans at Monroe, LLC; Orleans at
South Brunswick, LLC; Orleans Homebuilders Trust; Orleans Management, LLC;
Orleans RHPA, LLC; Orleans-Wheatley Meadows, LLC; P & L Realty, Inc.;
Quaker Sewer, Inc.; and Radnor Carpentry
Corporation.
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8
Capital
Structure
Background
19. OHB,
a Delaware corporation, is a public company listed on the American Stock
Exchange under the symbol “OHB.”
20. The
Debtors’ Chairman, President, Chief Executive Officer, and majority shareholder
is Jeffrey P. Orleans, the grandson of the Debtors’ founder, Alfred P.
Orleans.
Senior
Secured Credit Agreement
21. On
or about September 30, 2008, Greenwood Financial, Inc., and the rest of the
Debtors entered into a second amended and restated revolving credit loan
agreement (as amended and modified on or about January 28, 2009, February 11,
2009, August 3, 2009, August 13, 2009, September 30, 2009, October 30, 2009,
December 18, 2009, and January 25, 2010 (as amended, the “Senior Secured Credit
Agreement”)), with the Senior Secured Lenders, as lenders, and with Wachovia
Bank, National Association, as administrative agent (the
“Agent”). The obligations under the Senior Secured Credit Agreement
were guaranteed by Orleans Homebuilders, Inc. (“OHB”), and the maturity date of
the Senior Secured Credit Agreement, originally December 20, 2009, was extended
through February 12, 2010, under certain terms and conditions. As of
that date, the loan matured, and on February 17, 2010, the Agent sent the
Debtors a Default and Reservation of Rights Letter.
22. The
Debtors’ obligations under the Senior Secured Credit Agreement are secured by
senior, first-priority liens on, among other things, all real estate, income tax
refunds, inter-company debt, certain cash deposits, certain equity interests,
certain pineland development credits, and life insurance policies under the
Debtors’ survivor benefit program.
9
Circumstances Leading to
this Filing
23. The
homebuilding industry has experienced a significant and sustained downturn
characterized by decreased demand for new homes, an oversupply of both new and
resale home inventories (including homes under foreclosure), a decline in
average selling prices, and aggressive competition among
homebuilders. The declining real estate market has negatively
impacted homebuilders nationwide.
24. The
decreased demand for new homes has been exacerbated by the country’s ongoing
credit crisis, which has made traditional mortgages more difficult to obtain and
their terms and pricing more onerous, resulting in a challenging lending
environment for most prospective homebuyers.
25. As
a result of these and other external factors, the Debtors’ consolidated revenue
dropped from $987 million, for the fiscal year ended June 30, 2006, to $335
million, for the fiscal year ended June 30, 2009. While the Debtors
reacted appropriately to the changing market conditions, including reducing net
debt by approximately $185 million (31%); reducing spec home units by 53%;
reducing total lots by 59%, including exiting certain markets in Florida and
Arizona and reducing land exposure in Illinois; and reducing staff headcount by
67%, enabling the Debtors to be cash flow positive or neutral in 10 of the last
12 quarters, the Debtors violated certain covenants contained in the Senior
Secured Credit Agreement (which, as noted above, has now matured).
26. The
extended turmoil in the credit markets has also had an adverse impact on the
Debtors’ continued access to needed financing. Despite their
significant efforts and extended negotiations with the Senior Secured Lenders,
the Debtors, as noted above, were ultimately unable to obtain a maturity
extension or structural modification to the Senior Secured Credit
Agreement.
27. Market
conditions did not improve, and the Debtors concluded they did not have
sufficient liquidity to continue operating normally outside of
bankruptcy.
SUMMARY OF RELIEF
REQUESTED
28. Pursuant
to Bankruptcy Code Sections 105, 363, and 365 and Bankruptcy Rules 2002,
6004, and 6006, the Debtors hereby seek entry of the following
orders:
10
(a) an
order, substantially in the form annexed hereto as Exhibit B (the
“Bidding Procedures Order”) granting the Initial Relief, including, among other
things:
(i)
authorizing and approving certain Bidding Protections
and setting deadlines, requirements, and other procedures for the Sale and
auction process (collectively, and as more fully set forth herein, the “Bidding
Procedures”);
(ii) scheduling
(1) the Auction for the Purchased Assets to be held prior to the Sale Hearing
and (2) the Sale Hearing;
(iii) establishing
the relevant objection deadlines; and
(iv)
approving the form and manner of notice of the Sale, the
Auction, and the Sale Hearing, among other things; and
(b) an
order, substantially in the form annexed hereto as Exhibit C (the “Sale
Order”), among other things:
(i)
authorizing and approving the proposed APA by and between the
Debtors, as sellers, and the Proposed Buyer or such other entity (or entities)
submitting a higher or otherwise better offer(s), as purchaser(s), as approved
by this Court at the Sale Hearing;
(ii) authorizing
and approving the Sale of the Purchased Assets pursuant to the APA to the
Proposed Buyer or such other entity submitting a higher or otherwise better
offer, free and clear of all liens, claims, encumbrances, and other interests
other than the liabilities to be assumed by the Proposed Buyer and the Permitted
Liens;
(iii) authorizing
and approving the assumption and assignment of some or all of the Debtors’
executory contracts and unexpired leases in connection with the Sale to the
Proposed Buyer or such other entity submitting a higher or otherwise better
offer (collectively, the “Assigned Agreements”), and the rejection of their
remaining executory contracts and unexpired leases that would not be assumed and
assigned in connection with the Sale; and
(iv)
granting other related relief.
11
THE PROPOSED SALE AND
RELATED TRANSACTIONS
THE ASSET PURCHASE
AGREEMENT9
A. The Purchased
Assets
29. Pursuant
to the terms of the APA, the Proposed Buyer would acquire the Purchased Assets,
which, among other things, consist of the following assets of the Debtors (but
excluding the Excluded Assets) as of the Closing:
(i)
all real property (collectively, the “Real Property”)
owned by the Debtors or any of them at any Individual Property, including the
number of subdivided lots for each Individual Property set forth on Schedule
2.1(a) to the APA, together with all buildings, structures (surface and sub
surface), improvements, and fixtures located thereon, whether completed or
partially constructed, and all rights, privileges, and appurtenances pertaining
thereto, including all of the Debtors’ right, title, and interest in and to all
rights-of-way, open or proposed streets, alleys, easements, and strips or gores
of land adjacent thereto, but excluding any building lots and buildings
constructed thereon that are sold and conveyed by the Debtors to residential
homebuyers in the ordinary course of business prior to the Closing (it being
acknowledged that title to the JV Real Property is not held by the Sellers but,
instead, by entities in which the Sellers have an ownership interest);10
(ii)
all accounts receivable of the Debtors relating to or arising out of
the Real Property or the other Purchased Assets (and excluding, for the
avoidance of doubt, accounts receivable in respect of sales proceeds for real
estate closings for building lots and buildings constructed thereon that are
sold and conveyed by the Debtors to residential homebuyers in the ordinary
course of business prior to Closing but for which the sale proceeds have not
been received by the Debtors prior to Closing);
(iii)
the Purchased Contracts and all rights of Debtors
thereunder;
(iv)
the Controlled Jobs (which constitute all of the assets
identified on OHB’s balance sheet as “Inventory not owned – other financial
interests,” “obligations related to inventory not owned – other financial
interests,” and “Land deposits and costs of future land.”);
9
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The
following description of the terms of the APA is intended solely to
provide a brief overview thereof, and to highlight those material terms
and provisions required to be so pursuant to Local Bankruptcy Rule
6004-1. Parties should refer to the APA for the complete and
detailed terms thereof. In the event of any inconsistencies
between such summary and the APA, the latter shall govern. In
addition, all capitalized terms not otherwise defined herein shall have
the meaning ascribed to them in the
APA.
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10
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On a related note, one component
of the APA’s definition of “Material Adverse Effect” is “the failure of
one or more JV Entity to have good and marketable title to, or a valid
leasehold interest in, the JV Real Property free and clear of all Liens
other than Permitted
Liens.”
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12
(v)
the Purchased Leases and all rights of Debtors thereunder,
together with all improvements, fixtures, and other appurtenances thereto and
rights in respect thereof;
(vi)
all inventory, supplies, materials, and other personal
property related to or used in connection with the Real Property or the other
Purchased Assets, including any furniture, furnishings, fixtures, rugs, mats,
carpeting, appliances, computers, televisions, other electronic equipment,
plumbing fixtures, and other equipment located in any model homes included in
the Real Estate;
(vii)
all of the Debtors’ right, title, and interest in and to all
customer and other deposits (including earnest money deposits and security
deposits and interests to escrows) held in segregated accounts and prepaid
charges and expenses of the Debtors related to or used in connection with the
Real Property or the other Purchased Assets;
(viii) all
rights of the Debtors under any warranties relating to improvements to the Real
Property or other Purchased Assets;
(ix)
the right of the Debtors to any insurance proceeds and condemnation
proceeds in respect of the Real Property, the other Purchased Assets, or the
Assumed Liabilities;
(x)
all Intellectual Property owned and/or used by the Debtors in connection with
the Purchased Assets;
(xi)
all Documents that are used, or held for use, in connection with the Real
Property or the other Purchased Assets, but excluding any Documents primarily
related to or are required to realize the benefits of any Excluded Asset; provided, however, that the Debtors
shall have continued access to such Documents (or copies thereof) as are
necessary or appropriate to administer the Bankruptcy Case;
(xii) all
Permits and pending applications for Permits used in, held for use in or
intended to be used in connection with the Purchased Assets;
(xiii) all
rights of each Debtor under non-disclosure or confidentiality, non-compete, or
non-solicitation agreements with employees and agents of such Debtor or with
third parties to the extent relating to the Real Property or the other Purchased
Assets set forth in Section 2.1 of the APA, to the extent
assignable;
(xiv) all
right, title, and interest of the Debtors in and to any homeowner associations
or similar organizations (“HOAs”), including as “declarant” under the applicable
HOA Documents;
(xv)
the Debtors’ interests in the JV Investors; and
(xvi) all
other assets that are used or held for use in connection with or related to the
Purchased Assets listed on Schedule 2.1(p) to the APA.
See APA,
Section 2.1.
13
30. The
Excluded Assets that the Proposed Buyer would not be acquiring in connection
with the Sale include, among other things, all cash, cash equivalents, bank
deposits, or similar cash items of the Debtors as of the Closing; all causes of
action, including causes of action under Chapter 5 of the Bankruptcy Code,
rights of indemnity, warranty, contribution, or reimbursement of any Debtor not
related to or arising out of the Purchased Assets; all right, title, and
interest in respect of the Excluded Developments, which are the communities
referred to as Wildflower at Walkill, in Middletown, New York and Woodside
Crossing, in Rock Tavern, New York (the “Excluded Developments”);11 all of the Debtors’
deposits or prepaid charges and expenses paid in connection with any Excluded
Assets; any tax refund or tax receivable relating to any period prior to the
Closing Date or not related to or arising out of the Purchased Assets; all of
the Debtors’ rights under the APA and any other Sale Documents, and the
consideration to be paid under the APA; all Contracts and Documents other than
the Purchased Contracts and the Purchased Leases; and those assets, if any, set
forth on Schedule 2.2(j) to the APA. See APA,
Section 2.2.
B. The Consideration to be
Provided by the Proposed Buyer; the Good Faith Deposit
31. The
Proposed Buyer would provide consideration consisting of an amount equal to
$170,000,000 (the “Base Purchase Price”), subject to certain post-closing or
other adjustments relating to, among other things, environmental matters, title
or survey matters affecting any Individual Property, or the amount of undrawn
letters of credit and surety bonds relating to the Real Property to be
transferred to the Proposed Buyer, and minus the aggregate amount of the
Sellers’ Assumed Cure Amounts. See APA,
Section 3.1(a).12 The Base
Purchase Price, as so adjusted in the manner provided in Section 3.1 of the APA,
is hereinafter referred to as the “Purchase Price.”
11
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As set forth below, the proposed
Bidding Procedures provide that if a Competing Bidder submits a bid for
the North Region, such party must indicate whether or not it is also
seeking to acquire the Excluded Developments. In connection
with the Motion, the Debtors also seek authorization, in their discretion,
to consider bids for just the Excluded Developments, which, as noted
above, are not included in the Purchased Assets. In the event
the Debtors receive a bid for only the Excluded Developments that they
would, in their discretion, consider acceptable and would not interfere
with the sale of the Purchased Assets or the North Region (as applicable),
the Debtors hereby request authorization to seek this Court’s approval at
the Sale Hearing of such a sale of the Excluded
Developments.
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12
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On the Closing Date, the Proposed
Buyer will place 10% of the Purchase Price into escrow as the Holdback
Amount, to account for potential post-Closing adjustments to the Purchase
Price in favor of the Proposed Buyer. The Holdback Amount may
only be released to the Proposed Buyer in connection with the price
adjustment mechanism provided in Section 3.2 of the APA or a reimbursement
pursuant to Section 2.9 thereof, and if not otherwise so released, will be
released to the Debtors on the later of (x) 60 days after the Closing and
(y) the resolution of any dispute with respect to an
adjustment. See APA,
Section 3.1(b)(ii).
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14
32. The
Proposed Buyer has agreed to provide an earnest money deposit in the amount of
$17 million, representing 10% of the Base Purchase Price. It has
already paid half of this amount to the Escrow Agent, and will pay the balance
on or prior to the Bidding Deadline (as defined below). See APA,
Section 3.1(a). The Deposit would be applied to the Purchase
Price on the Closing Date. Id. at
Section 3.1(b). Alternatively, if the APA is terminated as a
result of, among other things, a termination of the APA due to a material or
uncured breach by the Proposed Buyer of any representation, warranty, or
covenant in the APA, or if the Proposed Buyer is unable to fulfill any
conditions to their obligations under the APA as a result of a breach by the
Proposed Buyer, then the Debtors would be entitled to keep the
Deposit. Id.
at Section 4.6(e).
33. In
addition, the Proposed Buyer would assume the Assumed Liabilities, which include
the Liabilities of the Debtors arising after the Closing Date under the Assumed
Agreements, solely to the extent such Liabilities arise under these contracts
and leases in accordance with the terms following the Closing; all Liabilities
arising out of or in connection with the ownership or operation of the Purchased
Assets following the Closing, including, in connection with the ownership of the
interests in the JV Investors, the payment in the amount of $2,734,028 (together
with any interest and penalties thereon) in connection with the Dolington JV
Real Property; all Liabilities arising following the Closing under the HOA
Documents; one-half of all Transfer Taxes due; the Assumed Cure Amounts;13 and all Liabilities for
customer deposits related to the Real Property to the extent delivered to the
Proposed Buyer or for which the Proposed Buyer receives a credit at
Closing. See
APA, Section 2.3.
13
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The APA defines the “Assumed Cure
Amount” as, “with respect to each Purchased Lease or Purchased Contract,
any amounts required to be paid pursuant to Section 365(b) of the
Bankruptcy Code or otherwise in order to cure any defaults existing as of
the date of assumption in respect of such Purchased Lease or Purchased
Contract, as approved by the Bankruptcy Court (including, for the
avoidance of doubt, the Sellers’ Assumed Cure Amounts).” The
“Sellers’ Assumed Cure Amounts” is in turn defined as “any Assumed Cure
Amounts payable with respect to Sellers’ Assumed Cure Amounts
Contracts.” “Sellers’ Assumed Cure Amounts Contract” means “any
contract for the sale of homes by Sellers to homebuyers and/or other
Purchased Contracts or Purchased Leases, the assignment of which is
required in order for the Sellers to perform their respective obligations
to transfer to [the Proposed Buyer] at Closing title to the Real Property
and interests in the JV
Investors.”
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15
34. The
Excluded Liabilities that the Proposed Buyer would not assume or otherwise
become liable for, include, among other things, all Liabilities under or with
respect to any Employee Benefit Plan; any Liability arising out or related to
the Excluded Assets; any Liability under the WARN Act; any indebtedness for
borrowed money or other interest bearing obligations; any damages or Liabilities
arising out of or in connection with any litigation pending, or claims arising,
against the Debtors or Affiliate thereof that is not otherwise an Assumed
Liability; any Liabilities arising under environmental laws from facts,
circumstances or conditions existing, initiated, or occurring on or prior to the
Closing Date (including but not limited to administrative or civil fines or
penalties for violations of environmental laws, or Remediation or response costs
for contamination); any Liability arising out of or in connection with a
violation of any Law by the Debtors, whether before or after the Closing,
including any violations of Law relating to occupational safety and health or
discrimination on the basis of age, race, creed, color, or disability, or any
conduct prohibited by the Foreign Corrupt Practices Act of 1977; any employment
agreements, retirement, or pension plans of the Debtors and post-retirement
benefits of any type or nature, whether funded or unfunded; and any
post-petition debt or administrative expense debt other than the Assumed Cure
Amounts. See
APA, Section 2.4.
16
C. Termination of the APA,
Closing, and Other Deadlines
35. Section
4.4 sets forth the instances in which the APA may be
terminated. Among other things, the parties may mutually agree to
terminate the APA (see
APA, Section 4.4(c)), and either the Debtors or the Proposed Buyer would be able
to terminate the APA if (1) the Closing shall not have occurred by the close of
business on the later of the later of (x) (i) with respect to any termination of
the APA by the Proposed Buyer, the earlier of (x) July 15, 2010 or, if the
Sale Order is entered after July 8, 2010, the date which is 5 Business Days
after the Sale Order is entered, and (y) August 15, 2010; and (ii)
with respect to any termination of the APA by the Debtors, August 31, 2010,
and (y) in the event that any filings with respect to the transactions under the
APA are made under the HSR Act or other Antitrust Laws, 5 Business Days after
expiration or early termination of any applicable notice period under the HSR
Act or such other Antitrust Laws (the “Outside Date”), provided, however, that if the Closing
shall not have occurred on or before the Outside Date due to a material breach
of any representations, warranties, covenants, or agreements contained in the
APA, then the breaching party (or parties) may not terminate the APA based upon
the passing of the Outside Date (id. at Section 4.4(b)); (2) a
final nonappealable Order of a Governmental Body of competent jurisdiction is in
effect that restrains the Transactions (id. at Section 4.4(h)); or
(3) this Court entered an order approving a Competing Transaction (id. at Section
4.4(i)).
36. The
Proposed Buyer would also be able to terminate the APA if (1) the Court shall
not have entered (i) the Bidding Procedures Order on or before the date that is
10 Business Days following the hearing at which the Bidding Procedures Order is
considered, or (ii) the Sale Order on or before the date that is 10 Business
Days following the hearing at which the Sale Order is considered, unless
extended to a later date by mutual consent of the Debtors and the Proposed Buyer
(id. at Section
4.4(a)); (2) on or prior to the Outside Date, any of the conditions to the
obligations of the Proposed Buyer to close the Transactions shall have become
incapable of fulfillment other than as a result of a breach by the Proposed
Buyer, and such condition is not waived by the Proposed Buyer (id. at Section 4.4(d)); (3)
if the Debtors shall be in breach of any representation or warranty, or any
covenant or agreement which would result in a failure of a condition to Closing,
which breach cannot be or has not been cured by the earlier of 30 days after the
Proposed Buyer has provided notice thereof or the Outside Date (id. at Section 4.4(f)); or
(4) the Debtors withdraw this Motion or announce or support any stand alone plan
of reorganization or liquidation (id. at Section
4.4(j)).
17
37. The
Debtors would be able to terminate the APA upon generally comparable
circumstances or similar uncured breaches by the Proposed
Buyer. Id.
at Section 4.4(e), (g)
E. Agreements with the Debtors’
Management
38. As
noted above, the APA provides that the Excluded Liabilities include any
employment agreements, retirement, or pension plans of the Debtors, and
post-retirement benefits. See APA, Section
2.4(i).
39. The
Debtors are not presently aware of any specific agreements that the Proposed
Buyer has discussed or entered into with the Debtors’ current management or key
employees regarding compensation or future employment following the
Sale. However, the Debtors are hopeful that the Proposed Buyer may
hire certain of the Debtors’ employees and/or current members of
management. The Debtors further anticipate that to the extent they
are so hired, such individuals would likely be employed by the Proposed Buyer on
generally the same terms and conditions as their current employment arrangements
with the Debtors, and as such, the Debtors submit that such arrangements would
be fair and reflect current market rates of compensation in the Debtors’
industry.
40. Moreover,
the fact that the Debtors’ advisors, BMOCM and Lieutenant Island, and the CRO,
have all been deeply involved in structuring the Sale and the amount and terms
of the consideration to be provided by the Proposed Buyer, combined with the
fact that such proposed consideration has been and will further be put to a
market test by virtue of any higher and better offers the Debtors may receive at
the Auction, ensures the fairness of the Sale and the Transactions, regardless
of whether any members of the Debtors’ current management or employees are
ultimately employed by the Proposed Buyer following the consummation of the
Sale.
18
F. Use of
Proceeds
41. Ultimately,
the resulting Sale proceeds received from the Proposed Buyer or such other party
who submits the highest or otherwise best offer or offers at the conclusion of
the Auction, will be utilized to satisfy the costs and expenses of administering
the Bankruptcy Cases and distributed to the Debtors’ creditors and/or interest
holders (pursuant to a plan of liquidation or otherwise in accordance with the
Bankruptcy Code and any order of the Bankruptcy Court). Neither the
APA, nor the proposed Sale Order, dictates how the Debtors or their estates must
utilize any of the Sale proceeds, other than to provide that all liens shall
attach thereto to the same extent and priority as such liens attached to the
Purchased Assets prior to the Closing.
G. Record
Retention
42. As
noted above, the Purchased Assets include all Documents that are used, or held
for use, in connection with the Real Property. See APA,
Section 2.1(k). However, excluded from the Documents the Debtors
will be selling are any Documents primarily related to, or are required to
realize the benefits of, any Excluded Assets. Id. In addition,
the Excluded Assets include any Documents not transferred under Section 2.1 of
the APA. Id.
at Section 2.2(g).
43. Moreover,
the APA expressly provides that the Debtors “shall have continued access to such
Documents (or copies thereof) as are necessary or appropriate to administer” the
Bankruptcy Cases. Id. at Section
2.1(k). In addition, the Proposed Buyer has covenanted that during
the first 90 days following the Closing, upon reasonable advance notice, it will
afford to the Debtors’ officers, independent public accountants, attorneys,
lenders, consultants, and other representatives, reasonable access during normal
business hours to the Purchased Assets and all records pertaining to the
Purchased Assets. Id. at Section
8.11(a).
19
44. Also,
the Proposed Buyer has agreed that it will, and will cause its Affiliates to,
provide the Debtors and their authorized agents and representatives (including
lenders) with “such access and administrative services as are reasonably
necessary to permit [the Debtors] to wind down and liquidate their estates after
Closing, including the administration of a plan of liquidation, reconciliation
of claims, and making distributions, provided that the provision of such access
and services shall not disrupt the conduct of the business of the [Proposed
Buyer] and its Affiliates.” Id. at Section
8.15. Such services will include (a) reasonable access, during normal
business hours upon reasonable advance notice, to any of the Proposed Buyer’s
and its Affiliates’ personnel who have knowledge of the Purchased Assets,
information technology systems (if the Proposed Buyer shall have acquired the
Debtors’ information technology systems), and books and records relating to the
Purchased Assets for periods prior to the Closing and (b) the use of office
space and office support for employees of the Debtors and their authorized
agents and representatives (including lenders) engaged in such wind-down and
liquidation process, to the extent that the Proposed Buyer and its Affiliates
have available office space. Id.
45. Accordingly,
the Debtors submit that they will have reasonable access to their books and
records after the Closing to enable them to administer the Bankruptcy
Cases.
H. Avoidance
Actions
46. As
noted above, the APA does not contemplate the sale to the Proposed Buyer of
potential avoidance actions under Chapter 5 of the Bankruptcy Code, or of any
other cause of action, not related to or arising out of the Purchased
Assets. Instead, such causes of action fall within Excluded Assets
under Section 2.2(f) of the APA that would remain property of the Debtors’
estates. Similarly, in Section 8.11(b) of the APA, the Proposed Buyer
has covenanted that it will “not pursue any avoidance actions or claims under
chapter 5 of the Bankruptcy Code against all parties covered by avoidance
actions that are Excluded Assets.”
20
I. Requested Findings as to
Successor Liability
47. The
proposed Sale Order contemplates certain findings as to successor
liability. See Sale Order, ¶¶ R, 7, and
35. As set forth in additional detail herein, the Sale contemplates
the transfer of the Purchased Assets free and clear of all claims and
encumbrances other than the Permitted Liens. As further set forth
below, the Debtors submit that the proposed Sale transaction satisfies the
applicable requirements of Bankruptcy Code Section 363(f) or otherwise for
the sale being free and clear of such claims, including any claims relating to
successor liability. As such, the findings set forth in the Sale
Order as to successor liability comply with applicable principles of sales free
and clear of such claims pursuant to Bankruptcy Code Section 363(f) or
otherwise.
J. Relief Under Bankruptcy Rule
6004(h)
48. For
the reasons set forth herein, the Debtors request relief from the 14-day stay
imposed by Bankruptcy Rule 6004(h). Given the likelihood that the
Purchased Assets would rapidly diminish in value if the proposed Sale is not
timely consummated, and the Debtors’ ongoing liquidity problems would likely
worsen if the Closing were unduly delayed, legitimate business reasons exist to
justify the Bankruptcy Court’s approval of an order waiving the requirements of
Bankruptcy Rule 6004(h). To that end, as noted below, the DIP Term
Sheet requires that the Sale close no later than July 5, 2010, and the APA
provides that either party may terminate it if the Closing does not occur by the
Outside Date. See APA, Section
4.4(b).
K. The Termination Fee and
other Bidding Protections
49. As
noted above, since their retention in December of 2008, BMOCM and Lieutenant
Island, and PMCM since their more recent involvement, have engaged in an
extensive campaign to market the Purchased Assets and the Debtors’
business. As of April 1, 2010, approximately 138 parties have been
contacted, including 117 private equity/alternative asset fund managers and 21
strategic entities that participate in the United States homebuilding
industry. The Debtors distributed approximately 46 forms of
non-disclosure agreements to date to these parties; 22 of the potential
purchasers executed non-disclosure agreements, and 3 others are in the process
of negotiating such agreements. Following the execution of
non-disclosure agreements satisfactory to the Debtors and their counsel, these
potentially interested parties have been conducting due diligence with respect
to the Purchased Assets, including touring many of the homebuilding developments
and reviewing detailed documents in a virtual data room. It is
anticipated that additional parties will be contacted in the coming weeks and,
if interested, those parties would execute non-disclosure agreements and
commence their due diligence. Notably, the Agent for the Senior
Secured Lenders has generally been kept apprised of this process
throughout.
21
50. Ultimately,
as discussed above, prior to the Petition Date, the Debtors executed a
non-binding letter of intent relating to a potential sale with another large
homebuilder (that is not NVR, Inc.). However, the Debtors and such
other party could not complete or agree upon the terms of any sale prior to the
termination of the Senior Credit Facility on or about February 12,
2010.
51. The
Debtors and their advisors thereafter engaged in extensive further negotiations
with both that party (including exchanging multiple drafts of a proposed asset
purchase agreement), as well as the party that emerged as the Proposed
Buyer. Because the Proposed Buyer ultimately submitted a
substantially higher offer than did the party to the pre-petition non-binding
letter of intent, the Debtors elected to enter into the APA with the Proposed
Buyer on or about March 31, 2010.
52. As
a result of this lengthy and already highly competitive bidding process to date,
the Debtors believe that the bid of the Proposed Buyer as embodied in the APA
(the “Initial Bid”) represents the highest and otherwise best offer so far
received for the purchase of the Purchased Assets, and the Debtors believe that
it is otherwise fair and reasonable and appropriate to proceed with under the
circumstances.
22
53. Nonetheless,
the Debtors are hopeful that there may be other bidders willing to provide
higher or otherwise better offers for the Purchased Assets, including the party
with whom they entered into the pre-petition non-binding letter of intent.14 Thus, and as
is customary with transactions of this nature, the Debtors have determined that
it is in the best interests of their estates to subject and expose the Proposed
Buyer’s offer to further competing bids (each, a “Competing Bid”) at the Auction
pursuant to the Bidding Procedures set forth below.
54. The
Proposed Buyer has consented to participate in the Auction as the initial bidder
or “stalking horse,” subject to certain terms and conditions.15 Such terms
and conditions include certain provisions related to bidding protections
(collectively, the “Bidding Protections”) in favor of the Proposed
Buyer. See
APA, Section 4.6. The Debtors believe that the Bidding
Protections are appropriate under the circumstances, balancing (a) the Debtors’
interest in having a baseline minimum price, in order to ensure the highest and
best net result for the Debtors’ estates with (b) protecting the substantial
investment made and to be made by the Proposed Buyer in entering into the APA in
terms of both time and money (including, without limitation, costs of due
diligence, financing, and professional advisers).16
(a) Payment of the Termination
Fee and the Expense Reimbursement
14
|
In addition, another party,
Traditions of America (which the Debtors understand is a builder of
lifestyle communities for 55+ buyers), formally submitted to the
Bankruptcy Court and the Debtors what it refers to as a “Letter of
Interest.”
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15
|
The APA provides that it “is
subject to approval by the Bankruptcy Court and the consideration by [OHB]
of higher or otherwise better competing bids for all or part of the
Purchased Assets... From the date hereof (and any prior time)
and until the date of the entry of the Sale Order... [OHB] is permitted to
cause its representatives and Affiliates to initiate contact with, solicit
or encourage submission of or response to any inquiries, proposals, or
offers by, any Person (in addition to [the Proposed Buyer] and its
Affiliates, agents, and representatives) in connection with any Qualified
Bid; provided, however, that any such contact,
solicitation, or encouragement shall be undertaken solely in accordance
with the terms of the Bidding Procedures Order.” See APA,
Section 7.1(a).
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16
|
The
following description of the Bidding Procedures is intended to serve as a
summary thereof, in accordance with the requirements of Local Bankruptcy
Rule 6004-1(c) that such provisions be highlighted. In the
event of any inconsistencies between such summary and the Bidding
Procedures set forth on Exhibit D
hereto, the latter shall
govern.
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23
55. In
particular, the Debtors would pay the Proposed Buyer, within 5 Business Days of
APA termination, the Expense Reimbursement17 in an amount not to
exceed $1,000,000, in the event the APA were terminated as a result of, among
other things: the Sale Order’s not being entered within the time
required in the APA (but only if terminated by the Proposed Buyer); the Closing
not having occurred by the Outside Date; any of the conditions to the
obligations of the Proposed Buyer to Closing shall have become incapable of
fulfillment (but only if terminated by the Proposed Buyer by reason of the
failure of the condition set forth in Section 9.1 or Section 9.3(b) of the APA
to be satisfied); an uncured breach of the APA by the Debtors; the Court’s
entering an order approving a Competing Transaction; or if the Debtors withdraw
this Motion or file a stand-alone plan. See APA,
Section 4.6(c).
56. In
addition, if (i) the APA is terminated other than as a result of: the
mutual written consent of the parties; an uncured breach by the Proposed Buyer
or a condition to the Debtors’ obligations to close shall have become incapable
of fulfillment (unless the Proposed Buyer terminates the APA by reason of the
failure of the condition set forth in Section 9.1 or Section 9.3(b) to be
satisfied); a nonappealable governmental order being in effect that restrains or
enjoins the consummation of the Transactions; or the Closing not having occurred
by the Outside Date (but only if terminated by the Debtors), and (ii) within 12
months after such termination, the Debtors complete a Competing
Transaction,18 the
APA provides that at the closing of any such Competing Transaction, the Debtors
will pay the Proposed Buyer (1) the Termination Fee, which represents 2% of the
Base Purchase Price, plus (2) the Expense Reimbursement (reduced by the amount
of any Expense Reimbursement previously paid to the Proposed Buyer under the
APA). See
APA, Section 4.6(d).
17
|
The
APA defines the “Expense Reimbursement” as $150,000 “(covering the
[Proposed Buyer’s] internal management and personnel expenses incurred in
pursuing the transactions contemplated hereby), plus
(b) all actual documented out-of-pocket costs, fees and expenses incurred
by [the Proposed Buyer] following the Petition Date in connection with (i)
this Agreement, including the negotiation and documentation of this Agreement and the
evaluation of the transactions contemplated hereby and/or (ii) any auction
or hearings (including the filing of any pleadings or other documents in
connection with such hearings) relating to this Agreement, the Bidding
Procedures Order, the Sale Order or otherwise relating to the sale of any
of the Purchased Assets or the Bankruptcy Case; provided, that the
aggregate amount of the Expense Reimbursement shall in no event exceed”
$1,000,000.”
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18
|
The APA defines a “Competing
Transaction” as one in which OHB and/or one or more of the Debtors “sell,
transfer or otherwise dispose, directly or indirectly, including through
an asset sale, stock sale, merger or other similar transaction, all or a
material portion of the Purchased Assets or the homebuilding lots and real
estate of the Parent and its subsidiaries located in any state other than
New York acquired subsequently to the date hereof, in a transaction or
series of transactions with one or more parties other than the” Proposed
Buyer. See APA,
Section 4.6(d).
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24
(b) Other Bidding
Protections:
57. As
described further below, the Debtors propose that the Bidding Procedures Order
be required to contain a provision requiring that any Competing Bidder (as
defined below) provide an earnest money deposit in the same percentage as the
Proposed Buyer’s (i.e., 10% of the Competing Bidder’s proposed purchase price),
and otherwise be on terms substantially similar to the terms of the Proposed
Buyer’s deposit.
58. Similarly,
the Debtors request that such order set forth the minimum amount of any Initial
Competing Bid (as defined below) to be at least $178,000,000. Such
minimum amount would consist of the Base Purchase Price set forth in the APA
with the Proposed Buyer, plus $3,400,000 (representing the Termination Fee),
$1,000,000 (representing the Expense Reimbursement), plus at least
$3,600,000 (representing an initial
minimum overbid).
59. However,
the Debtors also request authority to consider bids from multiple parties who
individually have expressed an interest in acquiring fewer than all 4 of the
Debtors’ main Regions of operations (North, South, Florida, and the Midwest), so
long as when combined, such bids together would result in the acquisition of all
of the Regions for an aggregate purchase price in excess of the Initial
Competing Bid, and the assumption of all of the Assumed Liabilities by the
various bidders as so combined (as applicable). In that regard, the
Debtors would request that in any bid for the North Region (separate from a bid
for all of the Purchased Assets), such bidder indicate whether its bid also
includes the Excluded Developments. In addition, the Debtors would,
in their discretion, consider bids at the Auction for just the Excluded
Developments, to the extent they conclude that any sale thereof would not
interfere with the Sale of the Proposed Assets or the North
Region.
25
60. The
Debtors further request that the minimum incremental addition to any subsequent
bids at the Auction for all of the Purchased Assets be at least
$1,000,000.
61. In
addition, any party submitting an Initial Competing Bid would also be required
to assume or pay at Closing substantially all of the Assumed Liabilities (or all
of the liabilities with respect to the individual Region that is the subject of
such Initial Competing Bid, to the extent it is for fewer than all 4 of the
Regions).
L. The Bidding
Procedures
62. In
order to appropriately evaluate Competing Bids and ensure an orderly auction
process that serves to maximize the value of the Purchased Assets, the Debtors
submit that it is necessary to establish certain uniform sale and bidding
procedures (including, without limitation, the Bidding Protections set forth
above). Exhibit D hereto sets
forth the Debtors’ proposed Bidding Procedures in detail.
63. Specifically,
the Debtors propose that the Auction of the Purchased Assets be conducted
generally on the following terms and conditions:
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(a)
|
In
the Auction and Hearing Notice (as defined and discussed below), the
Debtors will invite all potential bidders to request a proposed
confidentiality agreement from BMOCM, Lieutenant Island, and the
CRO. The Debtors’ advisors, on their own initiative, may also
send a proposed confidentiality agreement to those parties who have not
yet executed one but whom the Debtors and/or their advisors have
identified as potentially being interested in making an offer to purchase
the Purchased Assets and participating in the Auction. All
parties who timely execute and return a confidentiality agreement to
BMOCM, Lieutenant Island, and the CRO and who provide, in the Debtors’
discretion, information demonstrating sufficient financial wherewithal to
consummate a Sale, will be provided access to the due diligence materials
the Debtors and their advisors have already prepared for this
purpose.
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26
|
(b)
|
Thereafter,
the Debtors and their advisors will entertain any further reasonable
requests for additional information and due diligence from any party who
has so executed a confidentiality agreement and provided the required
satisfactory evidence of financial wherewithal, and has also submitted a
written non-binding expression of interest to the reasonable satisfaction
of the Debtors and their advisors. The Debtors, in their
discretion, may deny any such requests for additional information, if,
after taking into account, among other things, business factors, legal,
regulatory, and other considerations, they determine that doing so would
not be in the best interests of their estates and creditors or is
otherwise contrary to the goals of the Auction and the
Sale.
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|
(c)
|
All
bids for the acquisition of the Purchased Assets must be in writing,
comply with the Bidding Procedures, and be received by (1) BMO Capital
Markets Corp., 115 South LaSalle Street, 35th Floor, Chicago, Illinois
60603, Attn: Mr. Scott W. Humphrey, Executive Managing Director
and Head of U.S. M&A, (2) Lieutenant Island, 5 Leonard Road,
Bronxville, New York 10708, Attn.: Mr. Richard Thaler, and (3)
the CRO, c/o PMCM, LLC, 110 Chadds Ford Commons, Chadds Ford, Pennsylvania
19317, Attn.: Mr. Mitchell Arden and Mr. Vincent Colistra, with
a copy to (a) co-counsel to the Debtors, (i) Cahill Gordon & Reindel
llp,
Eighty Pine Street, New York, New York 10112-2200, Attn: Joel H. Levitin,
Esq., and (ii) Elliott Greenleaf, 1105 North Market Street, Suite 1700,
Wilmington, Delaware 19801, Attn.: Rafael X. Zahralddin, Esq.;
(b) the Office of the United States Trustee for the District of Delaware,
844 King Street, Room 2207, Wilmington, Delaware 19801, Attn.: David
Buchbinder, Esq.; (c) counsel to the Agent, (i), Reed Smith LLP, 1201
Market Street, Suite 1500, Wilmington, Delaware 19801,
Attn.: Mark W. Eckard, Esq., and (ii) Reed Smith LLP, One
Liberty Place, 1650 Market Street, Philadelphia, Pennsylvania 19103-7301,
Attn.: Claudia Z. Springer, Esq. and Scott M. Esterbrook, Esq.; (d)
proposed counsel to the Creditors Committee, (i) Duane Morris LLP, 1100
North Market Street, Suite 1200, Wilmington, Delaware 19801,
Attn.: Richard W. Riley, Esq. and Sommer L. Ross, Esq., (ii)
Duane Morris LLP, 1540 Broadway, New York, New York 10036-4086,
Attn.: Gerard S. Catalanello, Esq. and James J. Vincequerra,
Esq., (iii) Duane Morris LLP, 30 South 17th Street, Philadelphia,
Pennsylvania 19103-4196, Attn.: Lawrence J. Kotler, Esq., and
(e) co-counsel to the Proposed Buyer, (i) Hogan & Hartson LLP, 875
Third Avenue, New York, NY 10022, Attn.: Ira S. Greene, Esq. and Scott A.
Golden, Esq., and (ii) Potter Anderson & Corroon LLP, 1313 North
Market Street, Wilmington, Delaware 19899, Attn.: Steven M. Yoder, Esq.,
no later than 12:00 noon (prevailing Eastern Time) on June 16, 2010 (the
“Bidding Deadline”), which will be scheduled pursuant to the Bidding
Procedures Order. The Debtors may, but shall in no way be
obligated to, extend the Bidding Deadline with respect to one or more
Qualified Bidders (as such term is defined
below).
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27
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(d)
|
Any
competing bidder (a “Competing Bidder”) shall, prior to the Bidding
Deadline: (a) provide financial statements or other evidence of
financial wherewithal reasonably satisfactory to the Debtors,
demonstrating its ability to perform and consummate the transaction
described in its Bid (including, to the extent applicable, by providing an
Adequate Assurance Package (as such term is defined below) and proof of
such bidder’s ability to satisfy the balance of the proposed purchase
price or to provide any other consideration to be given in connection with
the Sale); (b) provide a bid letter including a statement that it is
willing to proceed as a buyer on a basis substantially similar to that of
the Proposed Buyer with respect to the Purchased Assets and/or the
Region(s) that is the subject of the Bid (including with respect to the
assumption of the Assumed Liabilities, or to the extent the Bid is for
fewer than for all 4 of the Regions, such Assumed Liabilities as relate to
the Region(s) in question), and include a binding, definitive, and
irrevocable executed copy of the APA marked with interlineations
indicating any modifications thereto required by the bidder (which
agreement shall not contain the provisions set forth in Section 4.6 of the
APA or otherwise entitle such bidder to a Termination Fee or Expense
Reimbursement); (c) complete and execute a confidentiality agreement
acceptable to the Debtors and their professionals; and (d) provide an
earnest money deposit of equal to 10% of the purchase price set forth in
its bid, upon submission of the Bid (the “Bid Deposit”). The
Debtors may request additional information from a Competing Bidder in
order to evaluate the bidder’s ability to consummate a transaction and to
fulfill its obligations in connection therewith, and such bidder will be
obligated to provide such information as a precondition to participating
further in the Auction.
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|
(e)
|
The
Bid Deposit shall be in the form of a wire transfer to the account of an
escrow agent selected by the Debtors (the “Escrow Agent”), pursuant to
instructions to be provided upon request. The Bid Deposit,
together with any interest earned thereon, shall be returned to any Bidder
whose Bid is not accepted by the Debtors within 3 business days of the
conclusion of the Sale Hearing, except that in the case of the party who
submits the Second Place Bid (as such term is defined below), the Debtors
reserve the right to retain such bidder’s Bid Deposit until 3 days after
the Transactions with the Winning Competing Bidder has been
consummated. If the entity that makes the Winning Competing Bid
(as such term is defined below) fails to consummate the purchase of the
Purchased Assets, and such failure to consummate the purchase or purchases
is the result of a breach by the Winning Competing Bidder, such bidder’s
Bid Deposit shall be forfeited to the Debtors and the Debtors specifically
reserve the right to seek all available damages from the defaulting
bidder.
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|
(f)
|
Except
as otherwise set forth herein, any initial bid of a Competing Bidder (an
“Initial Competing Bid”) made prior to the Bidding Deadline may (a) not be
less than $178,000,000, consisting of the sum of the (i) Base Purchase
Price, (ii) the sum of the Termination Fee in the amount of $3,400,000
plus the Expense Reimbursement in the amount of $1,000,000, and (iii) a
minimum incremental overbid of at least $3,600,000, (b) provide that the
bidder will assume or pay at Closing substantially all of the Assumed
Liabilities (or all of the liabilities with respect to the individual
Region(s) that is the subject of such Initial Competing Bid, to the extent
it is for fewer than all 4 of the Regions, as discussed below), and (c)
otherwise be on terms that are substantially similar to, or more favorable
to the Debtors, than those set forth in the APA with the Proposed Buyer
with respect to the Purchased Assets and/or the Region(s) that is the
subject of the Bid. Notwithstanding the foregoing, the Debtors
may, in their discretion, consider joint or individual bids from parties
who express an interest in acquiring fewer than all of the Debtors’ 4 main
Regions (North, South, Florida, and the Midwest) so long as when combined,
such bids together would result in the acquisition of all of the
Regions for an aggregate purchase price in excess of the Initial
Competing Bid, and all of the Assumed Liabilities would be assumed by the
various bidders, as applicable (as so
combined).
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28
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(g)
|
In
any bid for the North Region (separate from a bid for all of the Purchased
Assets), the Competing Bidder must indicate whether its bid also includes
the Excluded Developments. Alternatively, the Debtors, in their
discretion may consider a bid for only the Excluded Developments, solely
to the extent that any bid therefor otherwise satisfies all of the other
applicable requirements set forth herein for a Qualified
Bid. In the event the Debtors receive an otherwise Qualified
Bid for only the Excluded Developments that they would, in their
discretion, consider acceptable and would not interfere with the Sale of
the Purchased Assets or the North Region (as applicable), the Debtors may
also submit such bid to this Court for approval at the Sale
Hearing. In the event any bid for the Excluded Assets would
entail the assumption and assignment of any contract or lease, the Debtors
would provide notice to the applicable non-debtor contract party and an
opportunity to object to the proposed Cure
Amount.
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|
(h)
|
Each
Initial Competing Bid must also: (a) specify the portion of the
consideration to be paid in cash and the portion to be paid in any other
form of value (if any), including specifying any liability of the Debtors
that the Bidder intends to assume in connection with the Sale above and
beyond the Assumed Liabilities; (b) if any consideration above and beyond
the assumption of the Assumed Liabilities is to be provided in a form
other than cash, provide information concerning such consideration to
permit the Debtors to accurately assess the value of such consideration;
(c) if the bid contemplates a purchase of fewer than all of the Purchased
Assets (or not all 4 of the Regions), provide sufficient detail concerning
which of the Purchased Assets (and/or Regions, as applicable) would not be
purchased thereby, or if the bid contemplates a purchase of any or all of
the Excluded Assets, provide sufficient detail concerning which of the
Excluded Assets would also be purchased thereby; (d) provide sufficient
indicia that such bidder or its representative is legally empowered, by
power of attorney or otherwise, and financially capable (i) to bid on
behalf of the prospective bidder and (ii) to complete and sign, on behalf
of the bidder, a binding and enforceable asset purchase agreement; (e) not
contain any contingencies to closing that are not also set forth in
Article IX of the APA, including, without limitation, any contingencies
for financing, diligence, board approval, or similar contingencies or
conditions; (f) identify with particularity each and every executory
contract or unexpired lease the assumption and assignment of which is a
condition to closing, to the extent different from the Assigned Agreements
proposed to be assumed and assigned to the Proposed Buyer under the APA;
and (g) require the competing bidder to consummate the Sale on
substantially the same timing as set forth in the
APA.
|
|
(i)
|
Each
Competing Bid must fully disclose the identity of entities, if any, which
shall be acquiring directly or indirectly after the Closing a portion of
the Purchased Assets under or in connection with a Bid. Each
Competing Bidder is required to confirm that it has not engaged in any
collusion with respect to the bidding or the proposed Sale, except that
different parties may (with the Debtors’ permission, at their discretion
following a request therefor by the potential joint bidders upon full
notification of the entities involved) combine Bids into a joint bid (as
described further herein).
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29
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(j)
|
Bids
submitted on or prior to the Bidding Deadline, as may be modified by a
Bidder at the Auction, shall remain open and irrevocable until the Sale
Hearing; provided, however, that the
Winning Competing Bid and the Second Place Bid shall be deemed to remain
open and irrevocable until the closing of a transaction that is the
subject of such Bid (subject to the terms and conditions of the APA with
respect to the Proposed Buyer). Acceptance of a Qualified Bid
shall, in all respects, be subject to entry of an order by the Bankruptcy
Court that, among other things, authorizes the Debtors to consummate a
sale to the Winning Competing Bidder. Following the Sale
Hearing, if the Proposed Buyer or any Winning Competing Bidder (as the
case may be) fails to consummate an approved sale because of a breach or
failure to perform on its part, the next highest or otherwise best
Qualified Bid, as disclosed at the Auction (the “Second Place Bid”), shall
be deemed to be the Winning Competing Bid, and the Debtors shall be
authorized, but not required (except if the Second Place Bid is made by
the Proposed Buyer), to consummate the Sale with the Qualified Bidder
submitting such Second Place Bid (i) without the need for further notice
or order of the Bankruptcy Court and (ii) without prejudice to the
Debtors’ right to seek all available damages from the defaulting bidder
(be it the Proposed Buyer or the Winning Competing Bidder at the Auction,
including the party that submits the Second Place Bid, as the case may
be).
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(k)
|
The
Bid must include sufficient information to permit the Bankruptcy Court,
the Debtors, and the applicable lessors and contracting parties to
determine the proposed assignee’s ability to comply with Bankruptcy Code
Section 365 (to the extent applicable), including providing adequate
assurance of such assignee’s ability to perform in the future under the
applicable Assigned Agreements (the “Adequate Assurance
Package”).
|
|
(l)
|
Only
those parties who qualify as Competing Bidders and submit timely written
bids will be eligible and entitled to bid at the Auction, unless the
Debtors or the Bankruptcy Court determine otherwise (a “Qualified
Bidder”). A “Qualified Bidder” is one who has complied with the
terms and conditions set forth herein and in the Bidding Procedures Order,
including, without limitation, having demonstrated the ability to close
the Transactions to the reasonable satisfaction of the
Debtors. The Proposed Buyer will be deemed a Qualified Bidder,
and the APA will be deemed a Qualified Bid, for all purposes of the
Auction. Within 3 days after the Bidding Deadline, the Debtors
shall notify all parties who submitted bids whether or not they constitute
a Qualified Bidder.
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(m)
|
If
one or more Qualified Bids (other than the Proposed Buyer’s) are received,
the Auction would be conducted at the offices of Cahill Gordon &
Reindel llp,
Eighty Pine Street, New York, New York 10005-1702, or at another location
as may be timely disclosed by the Debtors to the Qualified Bidders, on or
about June 23, 2010 at 9:30 a.m. (prevailing Eastern Time) (the “Auction
Date”). If, however, (i) the only Qualified Bid the Debtors
have received by the Bidding Deadline (unless the Debtors have extended
such deadline in accordance with the terms of the Bidding Procedures) is
the Proposed Buyer’s Qualified Bid as set forth in the APA, then the
Auction will not be held, and the Proposed Buyer shall be deemed the
Winning Bidder, and the Debtors will be authorized to seek approval
thereof at the Sale Hearing.
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30
|
(n)
|
In
the event there is an Auction, all bidders must appear in person or
through a duly authorized representative, or else not be eligible or
entitled to participate therein. At or prior to the
commencement of the Auction, the Debtors will notify the Proposed Buyer
and all Qualified Bidders of the then highest and best Qualified Bid
received by that time.
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|
(o)
|
Initial
bidding at the Auction shall begin with such then highest and best
bid. Each subsequent bid (each, a “Subsequent Overbid”) for all
of the Purchased Assets must have a purchase price that exceeds the
purchase price of the previous highest bid by at least
$1,000,000.
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(p)
|
The
Auction will continue in one or more rounds of bidding and shall conclude
after each participating bidder has had an opportunity to submit an
additional Subsequent Overbid, after being advised of the then highest bid
and the identity of the party making such next highest
bid. Each bid at the Auction must meet each of the criteria of
a Qualified Bid, other than the requirement that it be received prior to
the Bidding Deadline. All bids shall be placed on the record,
which shall either be transcribed or videotaped, and each bidder shall be
informed of the terms of the previous
bid.
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|
(q)
|
In
considering bids other than the Proposed Buyer’s, the Debtors shall reduce
every (i) bidder’s bid for the Purchased Assets, or (ii) combination of
individual bids for fewer than all 4 of the Regions (provided that when so
combined, all 4 Regions would be the subject of a bid), in each instance
by an amount equal to (in the aggregate) the sum of the Termination Fee
plus the Expense Reimbursement (or consider any Subsequent Overbid of the
Proposed Buyer to be higher by an amount equal to the Termination Fee plus
the Expense Reimbursement). The Proposed Buyer shall be
entitled to make a revised higher or otherwise better offer at any time
during the Auction.
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(r)
|
The
Debtors further reserve the right to (a) amend and/or impose additional
terms and/or conditions at or prior to the Auction (other than the
requirements for a Qualified Bid set forth herein and the right of the
Proposed Buyer to make a revised higher or better offer at any time during
the Auction) that they believe will better promote the goals of the
Auction and be in the best interests of their estates, and do not
otherwise conflict with the terms and requirements set forth in the APA
and (b) subject to the terms of the APA, extend the deadlines set forth in
the Bidding Procedures and/or adjourn the Auction at the Auction and/or
the Sale Hearing in open court without further
notice.
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|
(s)
|
Upon
the conclusion of the Auction, the Debtors shall (i) review each Qualified
Bid or bids (as and to the extent such bids were increased at the Auction)
on the basis of financial and contractual terms and the factors relevant
to the Sale Process, including those factors affecting the speed and
certainty of consummating the Sale(s), as well as the Debtors’ liability,
if any, for payment of the Termination Fee and the Expense Reimbursement
to the Proposed Buyer, and (ii) identify the highest and otherwise best
offer(s) for the Purchased Assets as the Winning Competing
Bid. The Debtors and the entity (or entities) that made the
Winning Competing Bid(s) (each, a “Winning Competing Bidder”) will enter
into a definitive agreement(s) (which will be subject to Court approval)
before the Auction is adjourned. The Debtors will submit the
Winning Competing Bid(s) to the Court for approval at the Sale
Hearing.
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31
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(t)
|
To
the extent that the Initial Bid of the Proposed Buyer embodied in the APA
is not the Winning Competing Bid at the Auction, the Debtors will file
with the Bankruptcy Court a supplement (the “Supplement”) that will inform
the Bankruptcy Court of the results of the Auction and the highest or
otherwise best bid(s) for the Purchased Assets. The Supplement
will identify, among other things, (a) the Winning Competing Bidder(s), as
the proposed purchaser(s), (b) the consideration to be paid by such
purchaser(s) for the Purchased Assets, and (c) any executory contracts and
unexpired leases to be assumed and assigned to the purchaser in connection
with the Sale(s) (to the extent different from the Assigned Agreements
proposed to be assumed and assigned to the Proposed Buyer under the
APA). In addition, the Debtors will attach to the Supplement,
as exhibits, (a) any revised proposed order(s) approving the Sale(s), (b)
copies of the asset purchase agreement(s) entered into by the Debtors and
the Winning Competing Bidder(s), and (c) the Winning Competing Bidder’s
Adequate Assurance Package(s). Also, to the extent the Debtors
accept a bid for the Excluded Developments at the Auction, they will
include in the Supplement a copy of a proposed asset purchase agreement
and sale order with respect thereto (to the extent then
available). The Debtors will file and serve the Supplement as
promptly as is reasonably practicable prior to the Sale Hearing in
accordance with the Notice Procedures and, in any event, to any person who
submits a written request therefor to either (a) Cahill Gordon &
Reindel llp,
Eighty Pine Street, New York, New York 10005-1702, Attn: Joel H. Levitin,
Esq. or (b) Elliott Greenleaf, 1105 North Market Street, Suite 1700,
Wilmington, Delaware 19801, Attn.: Rafael X. Zahralddin,
Esq.
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|
(u)
|
Objections
to all relief requested in the Motion, other than (i) the Initial Relief
and (ii) as relating to the assumption and assignment of executory
contracts and unexpired leases (including, without limitation, the
Proposed Cure Amount (as such term is defined below)), must be in writing,
state the basis of such objection or other statements of position with
specificity, comply with the Bankruptcy Code, the Bankruptcy Rules and the
Local Rules, and be filed and served so as to be actually received by the
undersigned co-counsel to the Debtors, counsel to the Agent, the United
States Trustee, co-counsel to the Proposed Buyer, and proposed counsel to
the Creditors Committee, by 4:00 p.m. (prevailing Eastern Time) on the
date that is 7 days prior to the date of the Sale Hearing as established
by the Bankruptcy Court in the Bidding Procedures Order (the “Sale Hearing
Date”). Objections, if any, to the information contained in the
Supplement shall be filed and served so as to be received by the
undersigned, counsel to the Agent, the United States Trustee, and proposed
counsel to the Creditors Committee, by 12:00 p.m. (prevailing Eastern
Time) on the date that is one day prior to the Sale Hearing
Date.
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32
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(v)
|
No
later than 10 days following the entry of the Bidding Procedures Order,
the Debtors will file with the Bankruptcy Court and cause to be served on
all non-debtor parties to their known executory contracts and unexpired
leases a notice (the “Section 365 Notice”) that will inform such parties
of (A) the possibility that the Debtors may seek to assume, assign, and
transfer some or all of their executory contracts and unexpired leases to
the Proposed Buyer or to any Winning Competing Bidder in connection with
the Sale, and, in particular, will indicate whether or not the Proposed
Buyer has expressed an interest in having that particular contract or
lease assigned to it under the APA as an Assigned Agreement, (B) the
amount, if any, that the Debtors believe would be required to be paid to
cure any monetary default related to each such designated contract or
lease if it were so assumed and assigned, in satisfaction of Bankruptcy
Code Section 365(b) (the “Proposed Cure Amount”), and (C) the
possibility that the Debtors will seek to reject, at the Sale Hearing,
some or all executory contracts and unexpired leases that are not assumed
and assigned to a purchaser(s) of the Purchased Assets in connection with
a Sale.
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(w)
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Objections,
if any, that relate to (i) the proposed assumption and assignment of an
Assigned Agreement (including, but not limited to, any objections relating
to the validity of the Proposed Cure Amount as determined by the Debtors
or otherwise to assert that any amounts, defaults, conditions, or
pecuniary losses must be cured or satisfied under any of the assigned
executory contracts or unexpired leases, not including accrued but not yet
due obligations, in order for such contract to be assumed and/or assigned)
or (ii) the rejection of a Rejected Contract (as defined below), as
applicable (a “Section 365 Objection”) must be in writing, comply with the
Bankruptcy Code, the Bankruptcy Rules and the Local Rules, state the basis
of such objection with specificity, including, without limitation, the
cure amount alleged by such counterparty (if applicable), and include
contact information for such counterparty, and be filed and served so as
to be actually received by co-counsel to the Debtors, counsel to the
Agent, the United States Trustee, co-counsel to the Proposed Buyer, and
proposed counsel to the Creditors Committee, so that they are actually received by
4:00 p.m. (prevailing Eastern Time) on the date that is 10 days prior to
the Sale Hearing Date, or in the case of Additional Contracts, within 10
days after receipt of a Section 365 Notice with respect thereto (as
applicable, the “Section 365 Objection
Deadline”).
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(x)
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Unless
a Section 365 Objection is filed and served by a party to (a) an Assigned
Agreement or a party interested in an Assigned Agreement or (b) a Rejected
Contract, as applicable, by the Section 365 Objection Deadline, all
interested parties that have received actual or constructive notice
thereof shall be deemed to have waived and released any right to assert a
Section 365 Objection and to have otherwise consented to either (i) the
assignment of the applicable Assigned Agreement and shall be forever
barred and estopped from asserting or claiming against the Debtors, the
Purchased Assets, the Proposed Buyer, or the Winning Competing Bidder (as
the case may be), or any other assignee of the applicable Assigned
Agreement, that any additional amounts are due or defaults exist, or
conditions to assignment must be satisfied, under such Assigned Agreement
for the period prior to the Sale Hearing Date, or (ii) the rejection of a
Rejected Contract, as applicable.
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(y)
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The
proposed Sale may be withdrawn, without liability, prior to, during or at
the conclusion of the Auction for any reason, including a private sale or
a determination that a sale pursuant to the terms and conditions offered
at the Auction is not in the best interests of the
Debtors.
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33
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(z)
|
The
Sale shall be on an “as is, where is” basis and without representations or
warranties of any kind, nature, or description by the Debtors, their
agents, or their estates, except to the extent expressly set forth in the
APA with the Proposed Buyer or the Winning Competing Bidder, as the case
may be.
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PROPOSED FORM OF NOTICE OF
THE MOTION AND SALE
A. The Bidding Procedures
Hearing, the Auction, and the Sale Hearing
64. The
Debtors request that the Bankruptcy Court schedule a hearing (the “Bidding
Procedures Hearing”) for May 4, 2010, which is the date of the next-scheduled
omnibus hearing in the Bankruptcy Cases, so that the Debtors may proceed with
their efforts to sell the Purchased Assets as a going concern in a timely manner
before they may otherwise be forced to liquidate due to the liquidity and other
operational challenges described above. OHB has covenanted in the APA
to use its reasonable best efforts to obtain this Court’s entry of the Bidding
Procedures Order by May 7, 2010. See APA,
Section 8.9.19
65. The
Bidding Procedures Order, if entered, would approve and establish the Bidding
Procedures to be employed with the proposed Sale of the Purchased Assets
(including, among other things, the Termination Fee, the Expense Reimbursement,
and the other Bidding Protections and procedures set forth on Exhibit D hereto) and
the form and manner of notice of the proposed Sale. The Bidding
Procedures Order would also schedule the Auction, as well as the Sale Hearing,
which would be held within a few days of the Auction and approximately 75 days
from the date hereof, to consider entry of an order to approve, among other
things, the Sale, the assumption and assignment of the Assigned Agreements in
connection with the Sale, the rejection of other such contracts and leases, and
other related relief.20
19
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The
Debtors have also covenanted in the term sheet for their
debtor-on-possession financing (which was filed with the Bankruptcy Court
on the Petition Date, see Exhibit A to Docket
No. 13 (the “DIP Term Sheet”)) that they will obtain Bankruptcy Court
approval for the Bidding Procedures no later than May 20,
2010.
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20
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The DIP Term Sheet requires that
the Debtors conduct an auction no later than June 10, 2010, and obtain
court approval for a sale no later than June 20, 2010. The
Debtors believe that the dates requested herein for the Auction and the
Sale Hearing comply with the required dates in the DIP Term Sheet because
those dates “may be extended by thirty days at the discretion of the
Agent.” Also, OHB has covenanted in the APA to use its
reasonable best efforts to obtain this Court’s entry of the Sale Order by
June 30, 2010. See APA,
Section 8.9.
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34
66. The
Debtors submit that, under the circumstances, approximately 21 days is more than
sufficient to give all parties-in-interest herein the opportunity to review and
consider the requested Initial Relief. Because of the essentially
administrative nature of the relief sought in the Bidding Procedures Order, and
because the interests of all parties have been and will be adequately
represented by the continuing involvement of the Agent and the Creditors
Committee in the process, the Debtors submit that parties-in-interest would not
be prejudiced were the Bankruptcy Court to hold the Bidding Procedures Hearing
within such requested time frame.
67. In
that regard, the Debtors have served, or will hereinafter serve, a copy of this
Motion, including all exhibits hereto, on (a) the Office of the United States
Trustee for the District of Delaware, (b) counsel to the Agent, (c) proposed
counsel to the Creditors Committee, (e) all other known secured creditors of the
Debtors, (f) the Debtors’ 20 largest unsecured creditors (excluding insiders),
(g) the United States Attorney General, (h) the United States Attorney’s Office,
and (i) the Internal Revenue Service. In addition, the Debtors have
also served, or will hereinafter serve, a copy of this Motion, including all
exhibits thereto, via first class mail, on (a) all parties to the known
executory contracts and unexpired leases that would potentially be assumed and
assigned in connection with the Sale or rejected, (b) all other known taxing
authorities and other known governmental agencies whose rights may be affected
by the sale of the Purchased Assets, (c) the Proposed Buyer and all other
parties that have been identified by the Debtors and their advisors as being
potentially interested in making an offer to purchase the Purchased Assets and
participating in the Auction, and (d) all parties that have requested notice
pursuant to Bankruptcy Rule 2002 (all of the parties referred to in this
paragraph are collectively referred to as the “Motion Service
List”).
35
68. Lastly,
the Debtors submit that their proposed time frame for the Auction and the Sale
Hearing, requested to be scheduled for on or about June 23rd and 24th,
respectively, would give all potential competing bidders ample time to review
the Debtors’ assets and operations21 and to formulate a
competing bid (particularly in light of the fact that the Debtors have
established a virtual data room for potential bidders that contains detailed
documents), and would also provide all parties-in-interest with sufficient time
to object to any of the proposed transactions (including, without limitation,
the proposed Sale and the assumption and assignment of the Assigned Agreements
in connection therewith or the rejection of certain other executory contracts
and unexpired leases).
69. The
Debtors believe that any further delays beyond such proposed periods would
likely serve to impair the value of the Purchased Assets. Indeed, in
light of the liquidity and operational concerns described above, the Debtors are
concerned that any delay in proceeding with the Sale would serve only to
diminish the value of the Purchased Assets and threaten their ability to
continue fully operating as a going concern, to the detriment of the Debtors’
estates and creditors.
70. Specifically,
and as set forth above, the Debtors have (as has been the case for the past
several months) very limited cash available. Thus, the Debtors face a
scenario where, absent their obtaining increased liquidity, they would
potentially be unable to continue to build houses and service their customers
beyond the immediate future. Accordingly, if the Debtors are unable
to consummate a Sale with the Proposed Buyer (or such other entity that makes a
higher and better offer for the Purchased Assets at the Auction) within the time
period contemplated herein, their liquidity shortfall (including as a result of
the termination of the debtor-in-possession financing if they cannot close
within the timeframe required therein) could cause irreparable damage to their
business, preventing them from developing new properties, paying crucial
suppliers, and buying new land and other inventory, eroding customer and vendor
confidence in their long-term ability to operate, and raising the possibility of
a “fire sale” liquidation, among other unfavorable ramifications.
21
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To that end, the Auction and
Hearing Notice (as defined and discussed below) invites all potential
bidders to request a proposed confidentiality agreement from the CRO,
BMOCM, and Lieutenant Island, in order to initiate such review of the
Debtors’ assets and operations in accordance with the terms and conditions
thereof.
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36
71. To
that end, the Debtors note that certain potential homebuyers have cancelled
their purchase orders since the commencement of the Bankruptcy Cases, likely in
part due to the uncertainty surrounding the Debtors’ bankruptcy filing and their
liquidity and operational issues described above. The Debtors are
concerned that any delay in the Sale process (and a corresponding increase in
their time spent operating in bankruptcy) may exacerbate this problem, but are
hopeful that a Sale consummated in the time requested herein will send a
positive signal to potential homebuyers and the market in general that the
Debtors’ business will continue to be viable and uninterrupted.
72. In
addition, the Debtors believe that an extended auction period beyond the
approximately 45 days following the entry of the Bidding Procedures Order
contemplated herein would serve little purpose in these Bankruptcy
Cases. As set forth above, the Debtors and their professionals have
already marketed the Purchased Assets over the past several months (with BMOCM
and Lieutenant Island having been initially retained well over a year ago in
December 2008). The parties they have identified as the most likely
to make a bid on the Purchased Assets have already had ample time and
opportunity to conduct their due diligence and otherwise analyze the Purchased
Assets in question (as indeed, over 22 parties have already begun this
process). Specifically, the Debtors have already spent a great deal
of time engaging in active negotiations with such other parties as described
above (including comprehensive discussions and the exchanging of multiple drafts
of separate form asset purchase agreements with both the Proposed Buyer and one
other party that made a lower offer). Accordingly, such parties and
others should not need substantial additional time at this point to engage in
further analysis, and, instead, should be in a position to make a bid within the
time period contemplated by this Motion.
37
73. Moreover,
based upon the proposed dates for the Sale Hearing and any Auction, all
parties-in-interest herein would have approximately 9 weeks to file objections
to the remaining relief requested in the Motion, other than (i) the Initial
Relief and (ii) as relating to the assumption and assignment of executory
contracts and unexpired leases and the Supplement.
74. Thus,
the Debtors submit that parties-in-interest in the Bankruptcy Cases will not be
prejudiced if this Court schedules the Bidding Procedures Hearing, the Auction,
and the Sale Hearing on the dates requested herein. Indeed, such
parties would only benefit by such scheduling, as it would likely enable the
Debtors to achieve a greater sale price for the Purchased
Assets. Accordingly, the Debtors request that this Court approve
these requested dates.
B. The Proposed Bidding
Procedures Notice List
75. Pursuant
to Bankruptcy Rule 2002(m), bankruptcy courts are empowered to enter any order
“designating the matters in respect to which, the entity to whom, and the form
and manner in which notices shall be sent except as otherwise provided by these
rules.”
76. To
ensure that adequate notice of the Sale, the Auction, and the Sale Hearing is
provided, the Debtors would intend to serve notice of the Auction and of the
Sale Hearing substantially in the form annexed hereto as Exhibit E (the
“Auction and Hearing Notice”) establishing the respective dates, times, and
places of the Auction and the Sale Hearing within 5 business days of the entry
of the Bidding Procedures Order, by first class mail, postage prepaid, to (a)
all of the parties identified on the Motion Service List, (b) and all other
parties-in-interest in the Bankruptcy Cases known to the Debtors as of the
Petition Date (the “Auction and Hearing Notice Service List”).
77. Given
that the complete transaction documents may comprise hundreds of pages, the
Debtors believe the foregoing notice procedures would provide the most efficient
and effective notice possible of the relief requested. Any
party-in-interest wishing to receive a complete set of transaction documents
would be permitted to do so by request to the Debtors’ co-counsel or by
downloading a copy of same from the Bankruptcy Court’s website (which is located
at http://www.deb.uscourts.gov), or through the website maintained by the
Debtors’ noticing agent, which is located at
http://www.orleanshomesreorg.com.
38
78. Further,
the Debtors would reserve the right to publish an abbreviated version of the
Auction and Hearing Notice prior to the Auction in an appropriate publication or
publications, to be determined by the Debtors.
79. Moreover,
as set forth above, the Debtors would serve the Section 365 Notice on all
non-debtor parties to their known executory contracts and unexpired leases,
informing them of, among other things, the Proposed Cure Amounts and the
possibility that the Debtors may either (i) (a) assume and assign or (b) reject
certain of the executory contracts and unexpired leases.
80. The
Debtors submit that such notice as outlined in the preceding paragraphs would
constitute good and sufficient notice of the Sale, the assumption and assignment
or rejection of executory contracts and unexpired leases, the Auction, the Sale
Hearing, any other transaction set forth in the APA, and all the relief
requested herein.
THE
PROPOSED SALE IS IN THE BEST INTERESTS OF THE
DEBTORS’ ESTATES, CREDITORS,
AND INTEREST HOLDERS
81. The
proposed Sale pursuant to the APA is supported by sound business
justifications. The Debtors and their advisors firmly believe that
creditors would receive more value through the Sale of the Purchased Assets as a
going concern than through continued operations, or through a piecemeal
liquidation, which is a significant possibility if the Debtors cannot complete a
going concern sale in a timely manner.
A. The
Standard
82. Ample
authority exists for the approval of the proposed Sale. Initially,
Bankruptcy Code Section 363(b)(1) authorizes a debtor to sell assets of the
estate other than in the ordinary course of business. See also Fed. R. Bankr. P.
6004(f)(1) (“All sales not in the ordinary course of business may be by private
sale or by public auction.”).
39
83. Although
Bankruptcy Code Section 363 does not set forth a standard for determining
when it is appropriate for a court to authorize the sale or disposition of a
debtor’s assets, courts have uniformly held that approval of a proposed sale of
property pursuant to Bankruptcy Code Section 363(b) is appropriate if proceeding
with the transaction is consistent with the reasonable business judgment of the
debtor. See Comm.
of Equity Security Holders v. Lionel Corp. (In re Lionel Corp.), 722 F.2d
1063 (2d Cir. 1983); see also
Stephens Indus. Inc. v. McClung, 789 F.2d 386, 391 (6th Cir. 1986); In re Phoenix Steel Corp., 82
B.R. 334, 335-36 (Bankr. D. Del. 1987) (stating that the elements necessary for
approval of a Bankruptcy Code Section 363 sale in a Chapter 11 case are
“that the proposed sale is fair and equitable, that there is a good business
reason for completing the sale and the transaction is in good faith.”); In re Delaware & Hudson Ry.
Co., 124 B.R. 169, 176 (D. Del. 1991) (holding that a court must be
satisfied that there is a “sound business reason” justifying the
pre-confirmation sale of assets); Walter v. Sunwest Bank (In re
Walter), 83 B.R. 14, 19-20 (B.A.P. 9th Cir. 1988).
84. Further,
as stated by the Bankruptcy Appellate Panel for the Ninth Circuit Court of
Appeals in Walter, the
bankruptcy court should consider all salient factors pertaining to the proposed
transaction and, accordingly, act to further diverse interests of the debtor,
creditors, and other constituencies. Walter, 83 B.R. at 19-20
(citing In re Lionel,
722 F.2d 1063). The factors a court should evaluate include, inter alia, the consideration
to be paid, the financial condition and needs of the estate, the qualifications
of the buyer, and whether a risk exists that the assets proposed to be utilized
by the estate would decline in value if simply left in the estate’s
possession. See
Fin. Assocs. v. Loeffler (In re Equity Funding Corp.), 492 F.2d 793, 794
(9th Cir. 1974); In re Work
Recovery, Inc., 202 B.R. 301 (Bankr. D. Ariz. 1996).
85. In
these Bankruptcy Cases, the Debtors submit that their decision to sell the
Purchased Assets pursuant to the APA is based upon their sound business judgment
and should be approved. The Debtors believe that the Sale according
to the Bidding Procedures and the APA will enable them to obtain the greatest
value for the Purchased Assets and to maximize the value of their estates, in
the best interests of the Debtors, their creditors, and all other
parties-in-interest.22
22
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As
several courts have noted, the paramount goal for any proposed sale of
property of a bankruptcy estate is to maximize the proceeds received by
the estate. See, e.g., Integrated Res., 147
B.R. 650, 659 (S.D.N.Y. 1992) (“It is a well-established principle of
bankruptcy law that the objective of bankruptcy sales and the debtor’s
duty with respect to such sales is to obtain the highest price or overall
greatest benefit possible for the estate.”) (quoting In re Atlanta Packaging
Prods., Inc., 99 B.R. 124, 131 (Bankr. N.D. Ga.
1988)).
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40
86. Specifically,
the Debtors’ liquidity and corresponding supplier and customer concerns
described above threaten to both significantly undermine the value of the
Purchased Assets and the Debtors’ ability to operate as a going concern in the
foreseeable future. The Debtors fear that they simply lack the
liquidity to continue to develop and build new properties and to otherwise pay
their suppliers and vendors on a normal basis for an extended period, and they
are concerned that potential customers will be wary of buying a new home from a
company whose long-term survival may be in doubt. If they cannot take
the required steps now to sell their assets and thereby maintain the business
over a longer term, the Debtors’ viability as an ongoing enterprise is at
issue.
87. Thus,
the Debtors have determined that if they are unable to complete the proposed
Sale to the Proposed Buyer (or such other entity that makes a higher and better
offer for the Purchased Assets at the Auction), they will have no other choice
but to ultimately cease operations and liquidate the Purchased Assets.23 This would
result in a diminished return to their creditors.
23
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Given
the Debtors’ current capital structure and operational challenges, and in
light of their familiarity with the financing markets in general and for
homebuilding companies in particular, at this time the Debtors and their
advisors believe that it is highly remote they could quickly obtain the
required level of both (a) new financing and (b) debt relief with respect
to their obligations under the Senior Secured Credit Agreement and their
outstanding obligations to their suppliers and vendors that would enable
the Debtors to weather their liquidity and related problems through an
internal restructuring. The Debtors’ recent experiences
pursuing alternative financing (as described above and in their motion
seeking authorization to obtain DIP financing) have borne this
out. Similarly, the Debtors do not believe that the Senior
Secured Lenders would consent to a stand-alone plan of reorganization, and
the Debtors doubt they could (within the potential time limits
contemplated therefor in the DIP Term Sheet) propose and confirm a plan
that would “cram down” these lenders in a manner that would be feasible or
would otherwise satisfy the applicable requirements of Bankruptcy Code
Section 1129.
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41
88. The
APA with the Proposed Buyer represents the culmination of the Debtors’ marketing
efforts to date, while also allowing the Debtors to continue seeking higher or
otherwise better offers from other parties.
89. In
addition, it is the opinion of the Debtors and their advisors that the proposed
course of action, a timely yet open Sale process, is designed to protect the
interests of all parties in the Bankruptcy Cases. In particular, by
selling the Purchased Assets in the timeframe and manner proposed in this
Motion, the Debtors intend to preserve value by reducing the costs of, and risk
of damage to, their commercial standing inherent in a lengthy reorganization
(especially if the troubles in the homebuilding industry
persist). Also, the Debtors are concerned that they will not have the
financial wherewithal to sustain a lengthy reorganization process without the
significant, continued cooperation of the Debtors’ lenders, customers, and
vendors, which, at this time, the Debtors fear would be particularly problematic
given their difficulties over the past several months.24 Accordingly,
time is of the essence in preserving value here.
90. Moreover,
the Debtors intend to continue operating during the Sale process. The
Debtors and their professionals believe that a currently operating homebuilding
company is of far greater value to potential purchasers and all other
parties-in-interest than a closed business. This is especially true
in light of the fact that the Debtors understand that the Proposed Buyer is
interested in acquiring the Purchased Assets because of the anticipated
synergies in land and operations that will develop following the sale, which
would likely be lost or reduced if the transactions were to occur following the
cessation of the Debtors’ operations.
24
|
To that end, the Debtors note
that the DIP Term Sheet requires that the Debtors file a motion to approve
a sale of substantially all assets and bidding procedures no later than
April 30, 2010.
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42
91. Specifically,
the Proposed Buyer is clearly acting as a “strategic buyer” in this
instance. NVR, Inc., is one of the largest and most preeminent
homebuilding companies in the United States. Its homebuilding
operations include the construction and sale of single-family detached homes,
townhomes, and condominium buildings under four trade names: Ryan
Homes, NVHomes, Fox Ridge Homes, and Rymarc Homes. The Ryan Homes,
Fox Ridge Homes, and Rymarc Homes products are marketed to first-time homeowners
and first-time move-up buyers. The Ryan Homes product is sold in 25
metropolitan areas. The NVHomes product is marketed primarily to
move-up and upscale buyers. The markets in which the Proposed Buyer
primarily operates significantly overlap with the Debtors’ markets and the areas
in which the Debtors own undeveloped land. Thus, the operations and
land the Proposed Buyer would be acquiring from the Debtors in the Sale (among
other things) would complement that of the Proposed Buyer’s, creating
substantial synergies.
92. The
Debtors also believe that the Purchase Price is fair and reasonable and far
exceeds what the Debtors would obtain in any liquidation sale of the Purchased
Assets. Part of the Purchase Price will, among other things, enable
the Debtors to partially satisfy their obligations under their secured credit
facilities. Moreover, as discussed above, the APA provides for the
Debtors’ estates to retain avoidance actions and other causes of action not
related to the Purchased Assets, as well as certain properties that are among
the Excluded Assets set forth in Section 2.4, each of which may potentially
yield a further recovery to the Debtors’ estates.
93. In
addition, the Proposed Buyer has agreed to assume the Assumed
Liabilities. The Debtors do not believe that the Assumed Liabilities
would be similarly assumed or otherwise satisfied to the same extent in any
liquidation.
94. Similarly,
the Debtors are also hopeful that the Proposed Buyer (or the Winning Competing
Bidder, as the case may be) would agree to hire certain of their employees
following the Sale, thereby potentially providing continued employment for these
individuals.
95. Finally,
the Auction process itself, and the Debtors’ ongoing efforts to continue
negotiating with the other parties that have previously expressed or in the
future express an interest in a sale, will confirm that the Debtors have
obtained the highest and best offer for the Purchased Assets.
43
96. Accordingly,
as set forth herein, the proposed Sale is supported by sound business reasons
and is in the best interests of the Debtors’ estates.
97. The
Debtors further submit that any sale of the Excluded Developments for which they
may seek approval would also be supported by sound business reasons and would
also be in the best interests of their estates. As noted above, the
Excluded Developments are not among the Purchased Assets that the Proposed Buyer
would be acquiring under the APA. Thus, they represent a separate
asset base that could potentially generate value for the Debtors’ estates if
sold in a manner that the Debtors determine would not otherwise interfere with a
Sale of the Purchased Assets or the North Region. Accordingly, in the
Bidding Procedures, the Debtors have requested authorization to accept otherwise
qualified bids for the Excluded Developments, and they hereby request that if
they receive a bid that, in their discretion, they determine to be acceptable in
amount, to request this Court’s approval at the Sale Hearing of a sale thereof
free and clear of all liens, claims, and encumbrances.
98. Such
a sale could achieve proceeds that would inure to the benefit of the Debtors and
their creditors of an asset would be of little ongoing use to the Debtors’
operations (as, by that point, the Debtors would have sold the Purchased
Assets). Accordingly, the Debtors submit that any sale of the
Excluded Developments that they choose in their discretion to have this Court
approve at the Sale Hearing would be in the best interests of their estates and
creditors.
B. The
Procedures to be Undertaken by the Debtors Will Assure
that the Highest Value for
the Purchased Property Will be Received
99. In
accordance with Bankruptcy Rule 6004(f)(1), sales of property outside of the
ordinary course of business may be by private or by public
auction. Further, pursuant to Bankruptcy Rule 2002(a)(2), the
Bankruptcy Court may, for cause shown, shorten or direct another method of
giving notice regarding the general 21-day by-mail period for the proposed use,
sale, or lease of property of the estate other than in the ordinary course of
business. Subject to Bankruptcy Rule 6004, the notice of a proposed
use, sale, or lease of property required under Bankruptcy Rule 2002(a)(2) must
include the time and place of any public sale, the terms and conditions of any
private sale, and the time fixed for filing objections. See Fed. R. Bankr. P.
2002(c)(1). Moreover, the notice of a proposed use, sale, or lease of
property is sufficient if it generally describes the property. Id.
44
100. The
Debtors submit that the notice, procedures, and rules set forth in this Motion,
as well as the requested respective dates for the Bidding Procedures Hearing,
the Auction, and the Sale Hearing, satisfy the timing and notice requirements of
the Bankruptcy Rules, the Local Bankruptcy Rules, and Bankruptcy Code
Section 363(b), constitute good and sufficient notice, and that no other or
further notice of the Sale, the Auction, the Sale Hearing, the assumption and
assignment of the Assigned Agreements in connection with the Sale and the
rejection of other contracts and leases, or any other of the Transactions
referenced in this Motion or the APA, is required.
C. The Proposed Sale and
Purchase Would Be in Good Faith.
101. Bankruptcy
Code Section 363(m) provides that:
The
reversal or modification on appeal of an authorization under [Bankruptcy Code
Section 363(b) or (c)] of a sale or lease of property does not affect the
validity of the sale or lease under such authorization to an entity that
purchased or leased such property in good faith, whether or not such entity knew
of the pendency of the appeal, unless such authorization and such sale or lease
were stayed pending appeal.
102. The
terms of the Purchase Agreement were negotiated at arm’s length, without
collusion, and in good faith. Upon information and belief, the
Proposed Buyer is not an insider nor is it affiliated in any way with any of the
Debtors. Also, the Debtors have fully disclosed and requested the
Bankruptcy Court’s approval of all of the terms and conditions of the proposed
Sale (as the APA is attached as Exhibit A hereto) and
intend to provide notice as directed by the Bankruptcy
Court. Similarly, the Bidding Procedures would provide that different
parties may only combine Bids into a joint bid (as described further herein)
with the Debtors’ permission, at their discretion, following a request to do so
by such parties upon full notification of the entities
involved. See
generally In re Colony Hill Assocs., 111 F.3d 269 (2nd Cir. 1997)
(stating that the determination of “in good faith” is based upon traditional
equitable principles, including whether there has been full disclosure to the
bankruptcy court).
45
103. In
addition, the Proposed Buyer and the Debtors each were represented by separate
experienced professionals, helping to ensure that the Sale process has been fair
to date and will continue to be so, and that the APA was negotiated, proposed,
and entered into by the Debtors and the Proposed Buyer without collusion, in
good faith, and at arm’s length.
104. Accordingly,
the Debtors request that the Bankruptcy Court determine that the Proposed Buyer
(or the Winning Competing Bidder(s), as the case may be) has negotiated and
acted at all times in good faith and, as a result, be entitled to the
protections of a good faith purchaser under Bankruptcy Code
Section 363(m). See In re Abbotts Dairies of Pa.,
Inc., 788 F.2d 143, 149-150 (3rd Cir. 1986) (parties acted in good faith
if purchase price is adequate and reasonable and terms of sale are fully
disclosed).
D. The Proposed Sale Satisfies
the Requirements of Bankruptcy Code § 363(f)
105. The
Debtors presently believe that all of the Purchased Assets have been pledged to
the Senior Secured Lenders and/or the Debtors’ post-petition
lenders. Furthermore, various other creditors (such as certain
suppliers or vendors) may hold or assert security interests in some of the
Purchased Assets. Thus, in order to facilitate the Sale of such
property, and as contemplated and required by the APA, the Debtors request
authorization to sell all of the Purchased Assets free and clear of any and all
liens, claims, encumbrances (other than Permitted Liens), and other interests
which may be asserted (including any claims for successor
liability).
106. In
accordance with Bankruptcy Code Section 363(f), a debtor-in-possession may
sell property under Bankruptcy Code Section 363(b) “free and clear of any
interest in such property of an entity other than the estate” if any one of the
following conditions is satisfied:
|
(1)
|
applicable
nonbankruptcy law permits the sale of such property free and clear of such
interest;
|
|
(2)
|
the
[lienholder or claimholder]
consents;
|
46
|
(3)
|
such
interest is a lien and the price at which such property is to be sold is
greater than the aggregate value of all liens on such
property;
|
|
(4)
|
such
interest is in bona fide dispute;
or
|
|
(5)
|
[the
lienholder or claimholder] could be compelled, in a legal or equitable
proceeding, to accept a money satisfaction of such
interest.
|
Because
Bankruptcy Code Section 363(f) is stated in the disjunctive, satisfaction of any
one of its five requirements will suffice to warrant approval of the proposed
sale of homes. See
Folger Adam Sec. Inc. v. De Matties/McGregor JV, 209 F.3d 252, 257 (3d
Cir. 2000) (discussing how Bankruptcy Code Section 363(f) authorizes the sale of
a debtor’s assets free and clear if all liens, claims, and interests if “any one
of [the] five prescribed claims is met”); In re Kellstrom Indus., Inc.,
282 B.R. 787, 793 (Bankr. D. Del. 2002) (property may be sold “free and clear”
if at least one of the subsections of Bankruptcy Code Section 363(f) is met);
In re DVI, Inc., 306
B.R. 496, 503 (Bankr. D. Del. 2004) (same); see also Michigan Employment Sec.
Comm’n v. Wolverine Radio Co. (In re Wolverine Radio Co.), 930 F.2d 1132,
1147 n.24 (6th Cir. 1991), cert. dismissed, 503 U.S. 987
(1992) (same). The Debtors believe that they will satisfy one or more
of these requirements.
107. First,
based on the parties’ discussions, as well as the provisions of the DIP Term
Sheet described herein setting deadlines for the various stages of the Sale
process, the Debtors anticipate that the Agent and the agent for the Debtors’
post-petition lenders will consent on behalf of themselves and the respective
secured lenders to the Sale(s) in accordance with the Auction Procedures and as
provided for herein, because the Sale(s) provide the most effective, efficient,
and time-sensitive approach to realizing proceeds for, among other things, the
repayment of amounts due under the Senior Secured Credit Agreement and/or the
Proposed DIP Agreement.25
25
|
The Debtors note that,
alternatively, the Senior Secured Lenders would, as a matter of law, be
authorized to credit bid the allowed amount of their secured claims
pursuant to Bankruptcy Code Section 363(k), which states that “[a]t a sale
under . . . this section of property that is subject to a lien that
secures an allowed claim, unless the court for cause orders otherwise the
holder of such claim may bid at such sale, and if the holder of such claim
purchases such property, such holder may offset such claim against the
purchase price of such property.” See Beal
Bank, S.S.B. v. Waters Edge., L.P., 248 B.R. 668, 679-680 (D. Mass.
2000) (a secured creditor may credit bid its secured claim in a sale of
the debtor’s assets that are the subject of that
claim).
|
47
108. Moreover,
if a holder of a lien, claim, encumbrance, or other interest receives notice of
this Motion and does not object within the prescribed time period, such holder
will be deemed to have consented to the proposed Sale, and the Purchased Assets
may then be sold free and clear of such holder’s liens, claims, encumbrances,
and other interests pursuant to the terms proposed herein on that basis
alone. See,
e.g., Veltman v.
Whetzel, 93 F.3d 517 (8th Cir. 1996) (failure to object to notice of sale
or attend hearing deemed consent to sale for purposes of Bankruptcy Code Section
363); In re Elliot, 94
B.R. 343, 345 (E.D. Pa. 1988) (“implied consent” was sufficient to satisfy the
consent requirement of Bankruptcy Code Section 363(f)(2) “[b]ecause [the
secured creditor] admit[ed] that it received notice of the proposed sale and
also admit[ed] that it did not file any timely objection the sale was authorized
by Section 363(f)”); In
re Enron Corp., 2004 WL 5361245, at *2 (Bankr. S.D.N.Y. 2004) (same);
Hargrave v. Pemberton (In re
Tabore, Inc.), 175 B.R. 855 (Bankr. D. N.J. 1994) (same).
109. Also,
Bankruptcy Code Section 363(f)(l) allows a sale to proceed free and clear of
liens if the power to sell free and clear exists outside the bankruptcy context
in another body of law. The existence of such ability is
unquestionable here under applicable state law. Specifically, the
Debtors’ assets may be sold free and clear of interests because “applicable
nonbankruptcy law permits the sale of [the debtors’] property free and clear”
pursuant to, for example, state law foreclosure statutes. See Precision Indus. Inc. v.
Qualitech Steel SBQ, LLC, 327 F.3d 537, 545 (7th Cir. 2003), rev’g Precision Indus., Inc. v.
Qualitech Steel SBQ, LLC, No 00-0247, 2001 WL 699881 (S.D. Ind. Apr. 24,
2001) (reversing district court and finding that property sold pursuant to
Bankruptcy Code Section 363(f)(1) on account of state foreclosure law was sold
free and clear of lessee’s possessory interest in property). Indeed,
outside of bankruptcy, the Senior Secured Lenders could have foreclosed upon the
Debtors’ assets — including the Purchased Assets — and sold such assets free and
clear of junior liens (potentially other than any liens previously in existence
that under applicable law are senior to, and have not been subordinated to, the
liens and security interests of the Senior Secured Lenders). The
foreclosure laws in most states (including states in which the Debtors operate)
permit the sales of real property free and clear of liens, even when such liens
are not satisfied from sale proceeds. See, e.g., 735 Ill. Comp.
Stat. 5/15-1404 (under Illinois law, all interests terminated by judicial sale
of real estate pursuant to judgment of foreclosure); In re Dulgerian, No.
06-10203, 2008 WL 220523, at *4 (Bankr. E.D. Pa. Jan 25, 2008) (“upon sheriff’s
sale, the title of a purchaser relates to the date of the mortgage and defeats
all intervening . . . interests . . . acquired subsequent to
mortgage).
48
110. In
addition, because the Debtors’ secured creditors may be required to accept money
damages in exchange for their interests, Bankruptcy Code Section 363(f)(5) is
satisfied. See In
re Trans World Airlines, 322 F.3d 283, 290-91 (3d Cir. 2003) (property
sold free and clear of interests when claims were subject to monetary valuation
and satisfaction).
111. Indeed,
because the Purchased Assets will be sold for what the Debtors, in the exercise
of their business judgment, approximates at least the fair market value thereof,
particularly in light of the opportunity for competitive bidding at the Auction,
the holders of any liens thereon could therefore be compelled to accept money in
satisfaction of same. See In re WPRV-TV, Inc., 143
B.R. 315, 321 (D.P.R. 1991), vacated on other grounds, 165
B.R. 1 (D.P.R. 1992), aff'd in
part, rev’d in part, 983 F.2d 336 (1st Cir. 1993) (where “properties . .
. sold for the best price obtainable under the circumstances, and the liens will
attach to the sale proceeds, the proposed sale [satisfies Bankruptcy Code
Section 363(f)(5)] and may be approved”).
112. Accordingly,
the Debtors submit that at least one (if not more) of the subsections of
Bankruptcy Code Section 363(f) will be satisfied here, such that the
Bankruptcy Court should approve the Sale of the Purchased Assets free and clear
of liens, claims, encumbrances, and other interests (other than the Permitted
Liens). The Sale Order will provide that all liens on the Purchased
Assets will attach to the proceeds of the Sale with the same force, effect, and
priority as such liens have on the Purchased Assets, subject to the rights and
defenses of the Debtors and any party-in-interest with respect
thereto.
49
E. Cause Exists to Approve the
Bidding Protections
113. Sellers
of assets often employ bidding protections in order to encourage
bids. Break-up fees, expense reimbursement provisions, overbid
requirements, and other bidder protection devices are a normal, and frequently
necessary component of sales outside the ordinary course of business under
Bankruptcy Code Section 363.
114. Approval
of the proposed termination fee and expense reimbursement is governed by
standards for determining the appropriateness of bidding incentives in the
bankruptcy context established by the United States Court of Appeals for the
Third Circuit in Calpine Corp.
v. O’Brien Envtl. Energy, Inc. (In re O’Brien Envtl. Energy, Inc.), 181
F.3d 527 (3d Cir. 1999). In O’Brien, the Third Circuit
held that even though bidding incentives are measured against a business
judgment standard in non-bankruptcy transactions, the administrative expense
provisions of Bankruptcy Code Section 503(b) govern in the bankruptcy
context. Accordingly, to be approved, bidding incentives such as a
break-up fee or expense reimbursement must provide some benefit to the debtor’s
estate. Id.
at 533.
115. The
Third Circuit identified at least two instances in which bidding incentives may
benefit the estate. First, a benefit may be found if “assurance of a
break-up fee promoted more competitive bidding, such as by inducing a bid that
otherwise would not have been made and without which bidding would have been
limited.” Id. at
537. Second, where the availability of bidding incentives induce a
bidder to research the value of the debtor and submit a bid that serves as a
minimum or floor bid on which other bidders can rely, “the bidder may have
provided a benefit to the estate by increasing the likelihood that the price at
which the debtor is sold will reflect its true worth.” Id.
50
116. Whether
evaluated under the “business judgment rule” or the Third Circuit’s
“administrative expense” standard, the proposed Termination Fee and the payment
of the Expense Reimbursement in an amount not to exceed $1,000,000 under certain
circumstances in each case under the terms and conditions of the APA, should be
approved. Specifically, the amount of the Termination Fee (which, as
noted above, represents 2% of the Base Purchase Price) is lower, on a percentage
basis, both with respect to the Base Purchase Price and the Purchase Price being
provided, than other comparable fees and payments that have been approved of
transactions of this magnitude. See, e.g., In re Hechinger Inv.
Co., Case No. 99-2261 (PJW) (Bankr. D. Del. June 11, 1999) (fee of 3.0%
upheld); In re Montgomery Ward
Holding Corp., Case No. 97-1409 (PJW) (Bankr. D. Del. July 7, 1997) (fee
of 4.0% upheld); In re HHL
Fin. Servs. Inc., Case No. 97-398 (PJW) (Bankr. D. Del. March 31, 1997)
(approving 5.5% to 5.9% break-up fees); In re American White Cross,
Inc., Case No. 96-1109 (PJW) (Bankr. D. Del., July 7, 1996) (approving up
to 5.8% break-up fee plus up to $450,000 in expense reimbursement).
117. The
proposed Bidding Protections here also pass muster under the “business judgment
rule,” as they are the product of extended good faith and arm’s-length
negotiations between the Debtors and the Proposed Buyer. The Proposed
Buyer has to date made the highest definitive offer for the Purchased Assets;
however, its bid is contingent upon the Bankruptcy Court’s timely approval of
the Termination Fee, the Expense Reimbursement, and the other Bidding
Procedures, as it is unwilling to hold open its offer to purchase the Purchased
Assets under the terms of the APA unless the Bidding Procedures Order approving
the Bidding Protections and authorizing the payment of the Termination Fee and
Expense Reimbursement is not timely entered.
118. In
addition, the Debtors believe that the proposed Bidding Protections are fair and
reasonable in amount, particularly in view of the Proposed Buyer’s efforts to
date, the risk to the Proposed Buyer of being used as a “stalking horse,” and
the stabilizing effect that the execution of the APA is expected to have on the
Debtors’ business (thereby preserving value for creditors here, and increasing
the likelihood of additional bidding).
51
119. Further,
the proposed Termination Fee, the Expense Reimbursement, and the other Bidding
Protections already have encouraged bidding, in that the Proposed Buyer would
not have entered into the APA without these provisions. These Bidding
Protections thus have induced a bid that otherwise would not have been made and
without which other bidding would be limited. Similarly, the Proposed
Buyer’s offer provides a minimum bid on which other bidders can rely, thereby
increasing the likelihood that the price at which the Purchased Assets will be
sold will reflect their true worth. Finally, the mere existence of
these proposed Bidding Protections permits the Debtors to insist that competing
bids for the Purchased Assets be materially higher or otherwise better than that
contained in the APA, a clear benefit to the Debtors’ estates.
120. In
sum, the Debtors’ ability to offer the proposed Bidding Protections enables them
to ensure the Sale of the Purchased Assets to a contractually committed bidder
(be it the Proposed Buyer or any Winning Competing Bidder) at a price they
believe to be fair while, at the same time, providing them with the potential of
even greater benefit to their estates. Thus, under these
circumstances, the Bankruptcy Court should not override the Debtors’ business
judgment, and the Termination Fee, the Expense Reimbursement, and the other
proposed Bidding Protections should be approved.
Assumption and Assignment of
Executory Contracts and Unexpired Leases
121. To
facilitate and affect the Sale, the Debtors seek to assume and assign the
Assigned Agreements to the purchaser(s) of the Purchased Assets to the extent
required in connection with the Sale. Bankruptcy Code
Section 365 authorizes a debtor to assume and/or assign its executory
contracts and unexpired leases subject to the approval of the Bankruptcy
Court:
(a) Except
as provided in . . . subsections (b), (c), and (d) of this section, the trustee,
subject to the court’s approval, may assume or reject any executory contract or
unexpired lease of the debtor.
(b)(1) If
there has been a default in an executory contract or unexpired lease of the debt
the trustee may not assume such contract or lease unless, at the time of
assumption of such contract or lease, the trustee:
52
(A) cures,
or provides adequate assurance that the trustee will promptly cure such
default…;
(B) compensates
or provides adequate assurance that the trustee will promptly compensate, a
party other than the debtor to such contract or lease, for any actual pecuniary
loss to such party resulting from such default; and
(C) provides
adequate assurance of future performance under such contract or
lease.
****
(f)(2) The
trustee may assign an executory contract or unexpired lease of the debtor only
if —
(A) the
trustee assumes such contract or lease in accordance with the provisions of this
section; and
(B) adequate
assurance of future performance by the assignee of such contract or lease is
provided, whether or not there has been a default in such contract or
lease.
Accordingly,
Bankruptcy Code Section 365 authorizes the proposed assumptions and
assignments, provided that the defaults under such contracts and leases are
cured and adequate assurance of future performance is provided.
122. It
is well established in the Third Circuit and in other jurisdictions that the
decision to assume or reject an executory contract is a matter within the
“business judgment” of the debtor. See In re Market Square Inn,
Inc., 978 F.2d 116, 121 (3d Cir. 1992); In re Taylor, 913 F.2d 102
(3d Cir. 1990); Sharon Steel
Corp. v. Nat’l Fuel Gas Distrib. Corp., 872 F.2d 36 (3d Cir. 1989); In re Trans World Airlines,
Inc., 261 B.R. 103, 120-23 (Bankr. D. Del. 2001); see also NLRB v. Bildisco &
Bildisco, 465 U.S. 513, 523 (1984); In re Orion Pictures Corp., 4
F.3d 1095, 1099 (2d Cir. 1993). The business judgment standard
mandates that a court approve a debtor’s business decision unless the decision
is the product of bad faith, whim, or caprice. See Lubrizol Enters. v. Richmond
Metal Finishes, 756 F.2d 1043, 1047 (4th Cir. 1985), cert. denied, 475 U.S. 10571
(1986). Indeed, to impose more exacting scrutiny would slow a
debtor’s reorganization, thereby increasing its costs and undermining the
“Bankruptcy Code’s provisions for private control” of the estate’s
administration. Richmond Leasing Co. v. Capital
Bank, N.A., 762 F.2d 1303, 1311 (5th Cir. 1986).
53
123. The
Debtors submit that their decision to assume and assign those of their executory
contracts and unexpired leases as selected by the Proposed Buyer or to the
Winning Competing Bidder (as the case may be) in connection with a Sale would be
a sound exercise of their business judgment, and such assumption and assignment
would undoubtedly serve as an important component of the Purchased Assets and
business being acquired by such bidder(s). Accordingly, Bankruptcy
Code Section 365 authorizes the Debtors to assume and assign their
executory contracts and unexpired leases at the request of a successful bidder,
provided that the defaults under such contracts and leases are cured and
adequate assurance of future performance is provided.
124. The
meaning of “adequate assurance of future performance” depends on the facts and
circumstances of each case, but should be given “practical, pragmatic
construction.” See
Carlisle Homes, Inc. v. Arrari (In re Carlisle Homes, Inc.), 103 B.R.
524, 538 (Bankr. D.N.J. 1989); see also In re Natco Indus.,
Inc., 54 B.R. 436, 440 (Bankr. S.D.N.Y. 1985) (adequate assurance of
future performance does not mean absolute assurance that debtor will thrive and
pay rent); In re Bon Ton Rest.
& Pastry Shop, Inc., 53 B.R. 789, 803 (Bankr. N.D. Ill. 1985)
(“Although no single solution will satisfy every case, the required assurance
will fall considerably short of an absolute guarantee of
performance.”).
125. Among
other things, adequate assurance may be given by demonstrating the assignee’s
financial health and experience in managing the type of enterprise or property
assigned. In re
Bygaph, Inc., 56 B.R. 596, 605-06 (Bankr. S.D.N.Y. 1986) (adequate
assurance of future performance is present when prospective assignee of a lease
from debtor has financial resources and has expressed a willingness to devote
sufficient funding to business in order to give it strong likelihood of
succeeding; chief determinant of adequate assurance is whether rent will be
paid).
54
126. The
Debtors believe that they can and will demonstrate that all requirements for the
assumption and/or assignment of the Assigned Agreements proposed to be assigned
to the Proposed Buyer or to the Winning Competing Bidder (as the case may be)
will be satisfied at the Sale Hearing. The Debtors will cause the
Section 365 Notice to be served in the time and manner set forth above, thereby
providing all non-debtor parties to their known executory contracts and
unexpired leases to be assumed and assigned pursuant to this Motion an
opportunity to be heard and object to either the Proposed Cure Amount or any
other aspect of the proposed assumption and assignment. The Debtors
intend to demonstrate at the Sale Hearing that the purchaser(s) of the Purchased
Assets (be it the Proposed Buyer or the Winning Competing Bidder(s)) adequately
assures future performance under the executory contracts and unexpired leases to
be assumed and assigned and otherwise satisfies the requirements of Bankruptcy
Code Section 365(b)(3), as outlined above. To that end, as noted
above, the proposed Bidding Procedures require that any party wishing to make a
Competing Bid that involves the assignment of an executory contract or unexpired
lease thereto, include an Adequate Assurance Package along with its bid.26
127. The
Debtors also note that NVR, Inc., is one of the largest companies in the
homebuilding industry, with over 2,600 employees. NVR, Inc., and its
predecessor have been in the homebuilding industry for more than 60
years. NVR, Inc., is a publicly traded corporation on the New York
Stock Exchange, with a total market capitalization, as of December 31, 2009, in
excess of $4.2 billion. Accordingly, the Debtors believe that the
Proposed Buyer would clearly be able to satisfy its future obligations under the
Assigned Agreements, based upon it experience, willingness, and financial
wherewithal.
128. Thus,
the Debtors respectfully submit that by the conclusion of the Sale Hearing, the
assumption and assignment of the Assigned Agreements to the Proposed Buyer or to
the Winning Competing Bidder (as the case may be) should be
approved.
26
|
In addition, the APA provides
that the Proposed Buyer will provide adequate assurance as
required under Bankruptcy Code Section 365 of the future performance
thereby under the
Assigned Agreements. See APA, Section 8.10.
|
55
129. The
Debtors request that any objections that relate to the assumption and assignment
of executory contracts and unexpired leases (including, but not limited to, any
objections relating to Proposed Cure Amounts under Bankruptcy Code
Section 365(b)(1)) shall be filed and served so as to be actually received
by the undersigned, counsel to the Agent, co-counsel to the Proposed Buyer, and
proposed co-counsel to the Creditors Committee, by the Section 365 Objection
Deadline, which (as set forth above) is 4:00 p.m. (prevailing Eastern Time) on
the date that is 7 days prior to the Sale Hearing Date.
130. Further,
by this Motion, the Debtors request authority to reject some or all of their
executory contracts and unexpired leases that are not being assumed and assigned
to the Proposed Buyer or to the Winning Competing Bidder (as the case may be) in
connection with the Sale. After conducting the Auction and selling
the Purchased Assets, the unsold executory contracts and unexpired leases may be
valueless to the Debtors and would only create a potential expense burden on the
Debtors’ estates. Therefore, the Debtors request authority to reject,
as of the Sale Hearing Date, some or all executory contracts and unexpired
leases they believe to have no value, which contracts and leases will be
identified at or prior to the Sale Hearing and will be set forth on an exhibit
to the proposed Sale Order. The proposed Sale Order would also
establish a “bar date” for filing any rejection claims, which would be 30 days
following the Debtors’ service of a notice to the non-debtor parties to the
rejected contracts (the “Rejected Contracts”) of such rejection.
Exemption from Bulk Sale
Statutes
131. Certain
states and localities in which the business of the Debtors are operated or the
Purchased Assets are located may have statutes or regulations requiring creditor
notification before bulk transfers are conducted. The Debtors have
not conducted a comprehensive study of such requirements for every state, city,
and town in which the Purchased Assets are located. However, certain
of the statutes and regulations may provide that if a liquidation or bankruptcy
sale is court-authorized, then a company need not comply with such statutes or
regulations. Moreover, in the context of bankruptcy cases such as
these, where creditors are given notice of the proposed sale in advance, as well
as an opportunity to be heard before the Bankruptcy Court, the application of
such statutes and regulations would be redundant and
unnecessary. Accordingly, the Debtors seek the Bankruptcy Court’s
authorization to consummate the Sale without the necessity of complying with any
state or local bulk transfer requirements.
56
Request for Relief Under
Bankruptcy Rule 6004(h) and 6006(d)
132. Rule
6004(h) of the Bankruptcy
Rules provides, in substance, that an order authorizing the sale of a debtor’s
property is stayed for a period of 14 days after entry of the order unless the
court orders otherwise. Rule 6006(d) of the Bankruptcy Rules
provides, in substance, that an order authorizing the assignment of an executory
contract or unexpired lease is also stayed for a period of 14 days after the
entry of the order unless the court orders otherwise.
133. The
purpose of Bankruptcy Rule 6004(h) is to provide sufficient time for an
objecting party to appeal before an order can be implemented. See Advisory Committee Notes
to Fed. R. Bankr. P. 6004(h). Although Bankruptcy Rule 6004(h) and
the Advisory Committee Notes are silent as to when a court should “order
otherwise” and eliminate or reduce the stay period, the leading bankruptcy law
treatise suggests that the stay period should be eliminated to allow a sale or
other transaction to close immediately “where there has been no objection to the
procedure.” 10 COLLIERS ON BANKRUPTCY 15TH ED. REV., ¶ 6004.10[18] (15th rev.
ed. 2008). That treatise further indicates that if an objection is
filed and overruled, and the objecting party informs the court of its intent to
appeal, the stay may be reduced to the amount of time actually necessary to file
such appeal. Id.
57
134. As
described above, time is clearly of the essence here. The continuing
troubled economic environment, especially for homebuilders such as the Debtors,
coupled with the particular vulnerabilities of the Debtors’ customer and vendor
relationships and enhanced with the threat of liquidation by virtue of the
Debtors’ grave liquidity concerns, means that the Debtors’ assets and business
are at significant risk of losing value if the APA is not promptly approved or
if a prompt closing of the Sale cannot be accomplished. In addition,
the APA provides that the Proposed Buyer may terminate the APA if the Closing
shall not have occurred by the close of business on the Outside
Date. See
APA, Section 4.4(a).27
135. Thus,
a prompt closing of the Sale is of critical importance, and the Debtors request
that the Bankruptcy Court waive the 14-day stay periods under Bankruptcy Rules
6004(h) and 6006(d).
The Sale(s) Do Not
Constitute a Sub Rosa Plan of Reorganization
136. The
proposed Sale(s) is not a sub
rosa plan of reorganization as contemplated by Pension Benefit Guar. Corp. v.
Braniff Airways, Inc. (In re Braniff Airways, Inc.), 700 F.2d 935, 939-40
(5th Cir. 1983). The Debtors simply propose to sell the Purchased
Assets without altering the rights of their creditors. The proposed
Sale(s) would not specify the terms under which a reorganization plan is to be
adopted and does not bind any parties or creditor constituencies under any
future plan of reorganization that may in the future by proposed by the
Debtors. As the court in In re Naron & Wagner,
Chartered, stated, “[t]he sale proposed here is not a sub rosa plan because it
seeks only to liquidate assets, and the sale will not restructure rights of
creditors, as in the Braniff
case.” 88 B.R. 85, 88 (Bankr. D. Md. 1988); see also Eastern Airlines, Inc. v.
Shugrue (In re Ionosphere Clubs, Inc.), 184 B.R. 648, 654 n.6 (S.D.N.Y.
1995) (distinguishing Braniff).
27
|
Similarly, the DIP Term Sheet
requires that the sale close no later than July 5,
2010.
|
58
137. Furthermore,
the leading case law has clearly established that a sale of substantially all of
the assets of a debtor prior to the confirmation, or even prior to the filing,
of a plan of reorganization, is permissible. See In re Ionosphere, 184
B.R. at 653 (“[C]ourts consistently have acknowledged that assets of an estate
can be sold prior to the confirmation, or even filing, of a plan.”); see also In re Chateaugay
Corp., 973 F.2d 141 (2nd Cir. 1992) (proceeds of a sale placed in escrow
pending distribution through plan); In re Naron & Wagner, 88
B.R. at 87 (“[A Section 363 sale] may even be made, as here, prior to
filing a plan of reorganization.”); In re WHET, Inc., 12 B.R.
743, 750 (Bankr. D. Mass. 1981) (“[T]he case law again is clear that there is
nothing objectionable about a sale of all the assets outside of a Chapter 11
plan . . . . A trustee may, in appropriate
circumstances, first liquidate the assets of a debtor and then propose a plan
for distributing the proceeds to creditors.”).
138. Therefore,
the proposed Sale(s) should be approved.
No Previous
Application
139. No
previous application for the relief sought herein has been made to this or any
other Court.
WHEREFORE,
the Debtors respectfully request that the Bankruptcy Court enter orders,
substantially in the forms attached hereto, granting the relief requested herein
and such other and further relief as may be just and proper under the
circumstances.
Dated:
April 13, 2010
|
ELLIOTT
GREENLEAF
|
Wilmington,
Delaware
|
|
Rafael
X. Zahralddin-Aravena (DE Bar No. 4166)
|
|
Shelley
A. Kinsella (DE Bar No. 4023)
|
|
Andrew
G. Mirisis (DE Bar No. 5365)
|
|
1105
North Market Street, Suite 1700
|
|
Wilmington,
Delaware 19801
|
|
Telephone: (302)
384-9400
|
|
Facsimile: (302)
384-9399
|
|
Email: rxza@elliottgreenleaf.com
|
|
Email: sak@elliottgreenleaf.com
|
|
Email: agm@elliottgreenleaf.com
|
59
-
and -
|
|
CAHILL
GORDON & REINDEL LLP
|
|
Joel
H. Levitin
|
|
Michael
R. Carney
|
|
Maya
Peleg
|
|
Eighty
Pine Street
|
|
New
York, New York, 10005
|
|
Telephone: (212)
701-3000
|
|
Facsimile: (212)
269-5420
|
|
Email: jlevitin@cahill.com
|
|
Email: mcarney@cahill.com
|
|
Email: mpeleg@cahill.com
|
|
Attorneys
for the Debtors and
Debtors-in-Possession
|
60
BIDDING
PROCEDURES
The
following procedures (collectively, the “Bidding Procedures”) shall govern the
sale (the “Sale”) and auction (the “Auction”) of all of the right, title, and
interests in substantially all of the assets (the “Purchased Assets”) of Orleans
Homebuilders, Inc., and its debtor-subsidiaries and affiliates (collectively,
the “Debtors”), which are debtors-in-possession in cases pending in the United
States Bankruptcy Court for the District of Delaware (the
“Court”). The bankruptcy cases were commenced on March 1, 2010 (the
“Petition Date”).
These
Bidding Procedures have been approved and authorized by an order of the
Honorable Peter J. Walsh, United States Bankruptcy Court Judge, dated May [__],
2010 (the “Bidding Procedures Order”), upon the motion of the Debtors, dated
April 13, 2010, seeking such relief and other proposed relief in connection with
the Sale (the “Sale Motion”). Any party-in-interest who wishes to
receive a copy of the Sale Motion, including the APA and all other exhibits
thereto, may make such request in writing to the Debtors’ co-counsel, (i) Cahill
Gordon & Reindel llp,
Eighty Pine Street, New York, New York 10005-1702, Attn: Joel H.
Levitin, Esq. (Telephone: 212-701-3000, Facsimile: (212)
378-2439), or (ii) Elliott Greenleaf, 1105 North Market Street, Suite 1700,
Wilmington, Delaware 19801, Attn.: Rafael X. Zahralddin, Esq.
(Telephone: (302) 384-9400, Facsimile: (302) 384-9399), or
by downloading a copy of same from the Bankruptcy Court’s website (which is
located at http://www.deb.uscourts.gov) or from the website established by the
Debtors’ noticing agent (which is located at www.orleanshomesreorg.com).
1. The Purchased
Assets
The
Debtors and certain non-debtor parties, OHI PA, LLC and OHI NJ, LLC (the
“Sellers”), have entered into an Asset Purchase Agreement (the “APA”),1 dated as of April 13,
2010, with NVR, Inc. (including its permitted designees, the “Proposed Buyer”),
pursuant to which the Proposed Buyer would acquire the Purchased Assets, subject
to higher and better offers and Court approval. As further set forth
in, and qualified by, the APA, the Purchased Assets include, among other things,
the Debtors’ real property as set forth on Schedule 2.1(a) to the APA; certain
accounts receivable; the Controlled Jobs; inventory, supplies, and materials;
certain rights in or to joint ventures, strategic alliances, or partnerships;
the Purchased Contracts, the Purchased Leases, and all rights of the Debtors
thereunder; deposits and prepaid charges and expenses; documents used in
connection with the Debtors’ real property; permits; the Debtors’ intellectual
property; rights in any homeowner associations or similar organizations; and all
other assets used in connection with or related to the Purchased Assets listed
on Schedule 2.1(p) to the APA. The Purchased Assets will be sold free
and clear of all liens, claims, encumbrances, and other interests, subject to
agreement to the contrary with the successful bidder therefor with respect to
the Permitted Liens. The Purchased Assets do not include, among other
things, (i) bankruptcy causes of action, such as avoidance actions against the
Debtors’ suppliers, vendors, merchants, manufacturers, or related parties, or
other causes of action not related to the Purchased Assets; (ii) tax refunds;
(iii) rights in respect of the Excluded Developments (which are the communities
referred to as Wildflower at Walkill, in Middletown, New York and Woodside
Crossing, in Rock Tavern, New York and related assets); or (iv) the Debtors’
cash on hand. To the extent of any discrepancy between the
description set forth in this paragraph and the terms of the APA, the latter
shall govern.
1
|
All
capitalized terms not otherwise defined herein shall have the meanings
ascribed to them in the APA.
|
The Sale
shall be on an “as is, where is” basis and without representations or warranties
of any kind, nature, or description by the Debtors, their agents, or their
estates, except to the extent expressly set forth in the APA with the Proposed
Buyer or the Winning Competing Bidder, as the case may be.
2. The Stalking Horse Agreement
with the Proposed Buyer
The Base
Purchase Price under the APA is $170,000,000, subject to certain post-closing
adjustments (including subtracting the aggregate amount of all Sellers’ Assumed
Cure Amounts), and the Proposed Buyer will also assume certain liabilities,
including the Assumed Cure Amount and one-half of the Transfer Taxes
due.
“Assumed
Cure Amount” means with respect to each Purchased Lease or Purchased Contract,
any amounts required to be paid pursuant to Bankruptcy Code Section 365(b) or
otherwise in order to cure any defaults existing as of the date of assumption in
respect of such Purchased Lease or Purchased Contract, as approved by the
Bankruptcy Court (including, for the avoidance of doubt, the Sellers’ Assumed
Cure Amounts).
The
Proposed Buyer has agreed to provide the Debtors with a deposit in the amount of
$17 million, which is 10% of the amount of the Base Purchase Price (the
“Deposit”). The Proposed Buyer has already provided half of the
Deposit, and will pay the balance on or prior to the Bidding
Deadline.
The APA
provides for the payment of a Termination Fee and/or the Expense Reimbursement
to the Proposed Buyer. The Debtors would be required to pay the
Termination Fee and the Expense Reimbursement upon the termination of the APA
under certain circumstances as fully set forth in Section 4.6(d) of the
APA. The Termination Fee represents 2% of the Base Purchase Price to
be paid by the Proposed Buyer under the APA. Notwithstanding the
foregoing, the Debtors would be required to pay the Expense Reimbursement (in an
amount of up to $1,000,000) upon the termination of the APA under certain
circumstances as more fully set forth in Section 4.6(c) thereof.
3. Submission of
Bids
The
Debtors intend to deliver requests for bids to all parties who are known to have
expressed an interest in acquiring the Purchased Assets.
Also, in
the Auction and Hearing Notice, the Debtors will invite all potential bidders
who have not previously executed a confidentiality agreement to request a copy
of same from the Debtors’ Chief Restructuring Officer (the “CRO”) and their
advisors, BMO Capital Markets Corp. (“BMOCM”) and Lieutenant Island Partners LLC
(“Lieutenant Island”). These advisors on their own initiative, may
also send a proposed confidentiality agreement to those parties who have not yet
executed one but whom they or the Debtors have identified as potentially being
interested in making an offer to purchase the Purchased Assets and participating
in the Auction. All parties who timely execute and return a
confidentiality agreement to the CRO, BMOCM, and Lieutenant Island and who
provide, in the Debtors’ discretion, information demonstrating sufficient
financial wherewithal to acquire the Purchased Assets, will be provided access
to the due diligence materials the Debtors and their advisors have already
prepared for this purpose.
Thereafter,
the Debtors and the CRO, BMOCM, and Lieutenant Island will entertain any further
reasonable requests for additional information and due diligence from any party
who has so executed a confidentiality agreement and provided the required
satisfactory evidence of financial wherewithal, and has also submitted a written
non-binding expression of interest to the reasonable satisfaction of the Debtors
and their advisors. The Debtors, in their discretion, may deny any
such requests for additional information, if, after taking into account, among
other things, business factors, legal, regulatory, and other considerations,
they determine that doing so would not be in the best interests of their estates
and creditors or is otherwise contrary to the goals of the Auction and the
Sale.
2
All bids
for the acquisition of the Purchased Assets must in writing, comply with the
Bidding Procedures, and be received by (1) BMO Capital Markets Corp., 115 South
LaSalle Street, 35th Floor, Chicago, Illinois 60603, Attn: Mr. Scott
W. Humphrey, Executive Managing Director and Head of U.S. M&A, (2)
Lieutenant Island, 5 Leonard Road, Bronxville, New York 10708,
Attn.: Mr. Richard Thaler, and (3) the Debtors’ Chief Restructuring
Officer, c/o PMCM, LLC, 110 Chadds Ford Commons, Chadds Ford, Pennsylvania
19317, Attn.: Mr. Mitchell Arden and Mr. Vincent Colistra, with a
copy to (a) co-counsel to the Debtors, (i) Cahill Gordon & Reindel llp,
Eighty Pine Street, New York, New York 10112-2200, Attn: Joel H. Levitin, Esq.,
and (ii) Elliott Greenleaf, 1105 North Market Street, Suite 1700, Wilmington,
Delaware 19801, Attn.: Rafael X. Zahralddin, Esq.; (b) the Office of the United
States Trustee for the District of Delaware, 844 King Street, Room 2207,
Wilmington, Delaware 19801, Attn.: David Buchbinder, Esq.; (c) counsel to the
agent for the Debtors’ primary pre-petition secured lenders, (i) Reed Smith LLP,
1201 Market Street, Suite 1500, Wilmington, Delaware 19801, Attn.: Mark W.
Eckard, Esq., and (ii) Reed Smith LLP, One Liberty Place, 1650 Market Street,
Philadelphia, Pennsylvania 19103-7301, Attn.: Claudia Z. Springer, Esq. and
Scott M. Esterbrook, Esq.; (d) [proposed] counsel to the official committee of
unsecured creditors appointed in the Debtors’ Chapter 11 cases (the “Creditors
Committee”), (i) Duane Morris LLP, 1100 North Market Street, Suite 1200,
Wilmington, Delaware 19801, Attn.: Richard W. Riley, Esq. and Sommer
L. Ross, Esq., (ii) Duane Morris LLP, 1540 Broadway, New York, New York
10036-4086, Attn.: Gerard S. Catalanello, Esq. and James J.
Vincequerra, Esq., (iii) Duane Morris LLP, 30 South 17th Street, Philadelphia,
Pennsylvania 19103-4196, Attn.: Lawrence J. Kotler, Esq., and (e)
co-counsel to the Proposed Buyer, (i) Hogan & Hartson LLP, 875 Third Avenue,
New York, NY 10022, Attn.: Ira S. Greene, Esq. and Scott A. Golden, Esq., and
(ii) Potter Anderson & Corroon LLP, 1313 North Market Street, Wilmington,
Delaware 19899, Attn.: Steven M. Yoder, Esq., no later than 12:00 noon
(prevailing Eastern Time) on June 16, 2010 (the “Bidding
Deadline”). The Debtors reserve the right to (a) amend and/or impose
additional terms and/or conditions at or prior to the Auction (other than the
requirements for a Qualified Bid set forth herein and the right of the Proposed
Buyer to make a revised higher or better offer at any time during the
Auction) that they believe will better promote the goals of the
Auction and be in the best interests of their estates, and do not otherwise
conflict with the terms and requirements set forth in the APA and (b) subject to
the terms of the APA, extend the deadlines set forth in the Bidding Procedures
and/or adjourn the Auction at the Auction and/or the Sale Hearing in open court
or on the Bankruptcy Court’s calendar on the date scheduled for said hearing
without further notice to creditors or parties-in-interest.
Any party
interested in making a Bid must comply with these Bidding
Procedures. Only Qualified Bidders will be eligible and entitled to
bid at the Auction, unless the Debtors or the Bankruptcy Court determine
otherwise. The Proposed Buyer will be deemed a Qualified Bidder, and
the APA will be deemed a Qualified Bid, for all purposes of the
Auction. Within 3 days after the Bidding Deadline, the Debtors shall
notify all parties who submitted bids whether or not they constitute a Qualified
Bidder.
3
In
addition to the Proposed Buyer, a “Qualified Bidder” is one who has complied
with the terms and conditions set forth herein, including, without limitation,
having demonstrated the ability to close the Transactions to the reasonable
satisfaction of the Debtors. In order to be considered for Qualified
Bidder status, a Person must: (a) make a Bid prior to the Bidding Deadline (as
such terms are defined below); (b) provide financial statements or other
evidence of financial wherewithal reasonably satisfactory to the Debtors,
demonstrating its ability to perform and consummate the transaction described in
its Bid (including, to the extent applicable, by providing an Adequate Assurance
Package (as such term is defined below) and proof of such bidder’s ability to
satisfy the balance of the proposed purchase price or to provide any other
consideration to be given in connection with the Sale); (c) provide a bid letter
including a statement that it is willing to proceed as a buyer on a basis
substantially similar to that of the Proposed Buyer with respect to the
Purchased Assets and/or the Region(s) that is the subject of the Bid (including
with respect to the assumption of the Assumed Liabilities, or to the extent the
Bid is for fewer than for all 4 of the Regions, such Assumed Liabilities as
relate to the Region(s) in question), and include a binding, definitive, and
irrevocable executed copy of the APA marked with interlineations indicating any
modifications thereto required by the bidder (which agreement shall not contain
the provisions set forth in Section 4.6 of the APA or otherwise entitle such
bidder to a Termination Fee or Expense Reimbursement); (d) complete and execute
a confidentiality agreement acceptable to the Debtors and their professionals;
and (e) provide an earnest money deposit of equal to 10% of the amount of its
bid, upon submission of the Bid (the “Bid Deposit”). The Debtors may
request additional information from a Competing Bidder in order to evaluate the
bidder’s ability to consummate a transaction and to fulfill its obligations in
connection therewith, and such bidder will be obligated to provide such
information as a precondition to participating further in the
Auction.
The Bid
Deposit shall be in the form of a wire transfer to the account of an escrow
agent selected by the Debtors (the “Escrow Agent”), pursuant to instructions to
be provided upon request. The Bid Deposit, together with any interest
earned thereon, shall be returned to any Bidder whose Bid is not accepted by the
Debtors within 3 business days of the conclusion of the Sale Hearing, except
that in the case of the party who submits the Second Place Bid (as such term is
defined below), the Debtors reserve the right to retain such bidder’s Bid
Deposit until 3 days after the Transactions with the Winning Competing Bidder
has been consummated. If the entity that makes the Winning Competing
Bid (as such term is defined below) fails to consummate the purchase of the
Purchased Assets, and such failure to consummate the purchase or purchases is
the result of a breach by the Winning Competing Bidder, such bidder’s Bid
Deposit shall be forfeited to the Debtors and the Debtors specifically reserve
the right to seek all available damages from the defaulting bidder.
To be
considered a Qualified Bid, a bid must: (a) specify the portion of
the consideration to be paid in cash and the portion to be paid in any other
form of value (if any), including specifying any liability of the Debtors that
the Bidder intends to assume in connection with the Sale above and beyond the
Assumed Liabilities; (b) if any consideration above and beyond the assumption of
the Assumed Liabilities is to be provided in a form other than cash, provide
information concerning such consideration to permit the Debtors to accurately
assess the value of such consideration; (c) if (as described below) the bid
contemplates a purchase of fewer than all of the Purchased Assets (or not all 4
of the Regions), provide sufficient detail concerning which of the Purchased
Assets (and/or Regions, as applicable) would not be purchased thereby, or if the
bid contemplates a purchase of any or all of the Excluded Assets, provide
sufficient detail concerning which of the Excluded Assets would also be
purchased thereby; (d) provide sufficient indicia that such bidder or its
representative is legally empowered, by power of attorney or otherwise, and
financially capable (i) to bid on behalf of the prospective bidder and (ii) to
complete and sign, on behalf of the bidder, a binding and enforceable asset
purchase agreement; (e) not contain any contingencies to closing that are not
also set forth in Article IX of the APA, including, without limitation, any
contingencies for financing, diligence, board approval, or similar contingencies
or conditions; (f) identify with particularity each and every executory contract
or unexpired lease the assumption and assignment of which is a condition to
closing, to the extent different from the Assigned Agreements proposed to be
assumed and assigned to the Proposed Buyer under the APA; and (g) require the
competing bidder to consummate the Sale on substantially the same timing as set
forth in the APA.
4
Except as
otherwise set forth herein, any initial bid of a Competing Bidder (an “Initial
Competing Bid”) made prior to the Bidding Deadline may (a) not be less than
$178,000,000, consisting of the sum of the (i) Base Purchase Price, (ii) the sum
of the Termination Fee in the amount of $3,400,000 plus the Expense
Reimbursement in the amount of $1,000,000, and (iii) a minimum incremental
overbid of at least $3,600,000, (b) provide that the bidder will assume or pay
at Closing substantially all of the Assumed Liabilities (or all of the
liabilities with respect to the individual Region(s) that is the subject of such
Initial Competing Bid, to the extent it is for fewer than all 4 of the Regions,
as discussed below), and (c) otherwise be on terms that are substantially
similar to, or more favorable to the Debtors, than those set forth in the APA
with the Proposed Buyer with respect to the Purchased Assets and/or the
Region(s) that is the subject of the Bid. Notwithstanding the
foregoing, the Debtors may, in their discretion, consider joint or individual
bids from parties who express an interest in acquiring fewer than all of the
Debtors’ 4 main regions of operations (North, South, Florida, and the Midwest)
(each, a “Region,” and collectively, the “Regions”) so long as when combined,
such bids together would result in the acquisition of all of the
Regions for an aggregate purchase price in excess of the Initial Competing
Bid, and all of the Assumed Liabilities would be assumed by the various bidders,
as applicable (as so combined).
In any
bid for the North Region (separate from a bid for all of the Purchased Assets),
the Competing Bidder must indicate whether its bid also includes the Excluded
Developments. Alternatively, the Debtors, in their discretion may
consider a bid for only the Excluded Developments, solely to the extent that any
bid therefor otherwise satisfies all of the other applicable requirements set
forth herein for a Qualified Bid. In the event the Debtors receive an
otherwise Qualified Bid for only the Excluded Developments that they would, in
their discretion, consider acceptable and would not interfere with the Sale of
the Purchased Assets or the North Region (as applicable), the Debtors may also
submit such bid to the Bankruptcy Court for approval at the Sale
Hearing. In the event any bid for the Excluded Assets would entail
the assumption and assignment of any contract or lease, the Debtors would
provide notice to the applicable non-debtor contract party and an opportunity to
object to the proposed Cure Amount.
Each
Competing Bid must fully disclose the identity of all other entities, if any,
which shall be acquiring directly or indirectly after the Closing a portion of
the Purchased Assets under or in connection with a Bid. Each
Competing Bidder is required to confirm that it has not engaged in any collusion
with respect to the bidding or the proposed Sale, except that different parties
may (with the Debtors’ permission, at their discretion (following a request
therefor by the potential joint bidders upon full notification of the entities
involved) combine Bids into a joint bid (as described further
herein).
Bids
submitted on or prior to the Bidding Deadline, as may be modified by a Bidder at
the Auction, shall remain open and irrevocable until the Sale Hearing; provided, however, that the Winning
Competing Bid and the Second Place Bid shall be deemed to remain open and
irrevocable until the closing of the transaction that is the subject of such Bid
(subject to the terms and conditions of the APA with respect to the Proposed
Buyer). Acceptance of a Qualified Bid shall, in all respects, be
subject to the entry of an order by the Bankruptcy Court that, among other
things, authorizes the Debtors to consummate a sale to the Winning Competing
Bidder. Following the Sale Hearing, if the Proposed Buyer or any
Winning Competing Bidder (as the case may be) fails to consummate an approved
sale because of a breach or failure to perform on its part, the next highest or
otherwise best Qualified Bid, as disclosed at the Auction (the “Second Place
Bid”), shall be deemed to be the Winning Competing Bid, and the Debtors shall be
authorized, but not required (except if the Second Place Bid is made by the
Proposed Buyer), to consummate the Sale with the Qualified Bidder submitting
such Second Place Bid (i) without the need for further notice or order of the
Bankruptcy Court and (ii) without prejudice to the Debtors’ right to seek all
available damages from the defaulting bidder (be it the Proposed Buyer or the
Winning Competing Bidder at the Auction, including the party that submits the
Second Place Bid, as the case may be).
5
4. The Auction and Selection of
the Winning Bid
If one or
more Qualified Bids (other than the Proposed Buyer’s) are received by the
Bidding Deadline (a “Competing Bid”), the Auction would be conducted at the
offices of Cahill Gordon & Reindel llp,
Eighty Pine Street, New York, New York 10005-1702, or at another location as may
be timely disclosed by the Debtors to the Qualified Bidders, on or about June
23, 2010 starting at 9:30 a.m. (prevailing Eastern Time) (the “Auction
Date”). If, however, (i) the only Qualified Bid the Debtors have
received by the Bidding Deadline (unless the Debtors have extended such deadline
in accordance with the terms of the Bidding Procedures) is the Proposed Buyer’s
Qualified Bid as set forth in the APA, then the Auction will not be held, and
the Proposed Buyer will be deemed the Winning Bidder, and the Debtors will be
authorized to seek approval thereof at the Sale Hearing.
In the
event there is an Auction, all bidders must appear in person or through a duly
authorized representative, or else not be eligible or entitled to participate
therein. At or prior to the commencement of the Auction, the Debtors
will notify the Proposed Buyer and all Qualified Bidders of the then highest and
best Qualified Bid received by that time.
Initial
bidding at the Auction shall begin with such then highest and best
bid. If more than one Bid is submitted, each such bidder shall have
the right to continue to improve its Bid at the Auction. Each
subsequent bid (each, a “Subsequent Overbid”) must have a purchase price that
exceeds the purchase price of the previous highest bid by at least
$1,000,000.
The
Auction will continue in one or more rounds of bidding and shall conclude after
each participating bidder has had an opportunity to submit an additional
Subsequent Overbid, after being advised of the then highest bid and the identity
of the party making such next highest bid. Each bid at the Auction
must meet each of the criteria of a Qualified Bid, other than the requirement
that it be received prior to the Bidding Deadline. All bids shall be
placed on the record, which shall either be transcribed or videotaped, and each
bidder shall be informed of the terms of the previous bid.
In
considering bids other than the Proposed Buyer’s, the Debtors shall reduce every
(i) bidder’s bid for the Purchased Assets, or (ii) combination of individual
bids for fewer than all 4 of the Regions (provided that when so combined, all 4
Regions would be the subject of a bid), in each instance by an amount equal to
(in the aggregate) the sum of the Termination Fee plus the Expense Reimbursement
(or consider any Subsequent Overbid of the Proposed Buyer to be higher by an
amount equal to the Termination Fee plus the Expense
Reimbursement). The Proposed Buyer shall be entitled to make a
revised higher or otherwise better offer at any time during the
Auction.
Upon the
conclusion of the Auction, the Debtors shall (i) review each Qualified Bid or
bids (as and to the extent such bids were increased at the Auction) on the basis
of financial and contractual terms and the factors relevant to the Sale Process,
including those factors affecting the speed and certainty of consummating the
Sale(s), as well as the Debtors’ liability, if any, for payment of the
Termination Fee and the Expense Reimbursement to the Proposed Buyer, and (ii)
identify the highest and otherwise best offer(s) for the Purchased Assets as the
Winning Competing Bid. The Debtors and the entity (or entities) that
made the Winning Competing Bid(s) (each, a “Winning Competing Bidder”) will
enter into a definitive agreement(s) (which will be subject to Court approval)
before the Auction is adjourned. The Debtors will submit the Winning
Competing Bid(s) to the Court for approval at the Sale Hearing.
6
5. The
Supplement
To the
extent that the Initial Bid of the Proposed Buyer embodied in the APA is not the
Winning Competing Bid at the Auction, the Debtors will file with the Bankruptcy
Court a supplement (the “Supplement”) that will inform the Bankruptcy Court of
the results of the Auction and the highest or otherwise best bid(s) for the
Purchased Assets. The Supplement will identify, among other things,
(a) the Winning Competing Bidder(s), as the proposed purchaser(s), (b) the
consideration to be paid by such purchaser(s) for the Purchased Assets, and (c)
any executory contracts and unexpired leases to be assumed and assigned to the
purchaser in connection with the Sale(s) (to the extent different from the
Assigned Agreements proposed to be assumed and assigned to the Proposed Buyer
under the APA). In addition, the Debtors will attach to the
Supplement, as exhibits, (a) any revised proposed order(s) approving the
Sale(s), (b) copies of the asset purchase agreement(s) entered into by the
Debtors and the Winning Competing Bidder(s), and (c) the Winning Competing
Bidder’s Adequate Assurance Package(s). Also, to the extent the
Debtors accept a bid for the Excluded Developments at the Auction, they will
include in the Supplement (to the extent then available) a copy of a proposed
asset purchase agreement and sale order with respect thereto. The
Debtors will file and serve the Supplement as promptly as is reasonably
practicable prior to the Sale Hearing in accordance with the Notice Procedures
and, in any event, to any person who submits a written request therefor to
either (a) Cahill Gordon & Reindel llp,
Eighty Pine Street, New York, New York 10005-1702, Attn: Joel H. Levitin, Esq.
or (b) Elliott Greenleaf, 1105 North Market Street, Suite 1700, Wilmington,
Delaware 19801, Attn.: Rafael X. Zahralddin, Esq.
6. Notice of Proposed
Assignment and Cure Amounts
No later
than 10 days following the entry of the Bidding Procedures Order, the Debtors
will file with the Bankruptcy Court and cause to be served on all non-debtor
parties to their known executory contracts and unexpired leases a notice (the
“Section 365 Notice”) that will inform such parties of (A) the possibility that
the Debtors may seek to assume, assign, and transfer some or all of their
executory contracts and unexpired leases to the Proposed Buyer or to any Winning
Competing Bidder in connection with the Sale, and, in particular, will indicate
whether or not the Proposed Buyer has already expressed an interest in having
that particular contract or lease assigned to it under the APA as an Assigned
Agreement, (B) the amount, if any, that the Debtors believe would be required to
be paid to cure any monetary default related to each such designated contract or
lease if it were so assumed and assigned, in satisfaction of Bankruptcy Code
Section 365(b) (the “Proposed Cure Amount”), and (C) the possibility that
the Debtors will seek to reject, at the Sale Hearing, some or all executory
contracts and unexpired leases that are not assumed and assigned to a
purchaser(s) of the Purchased Assets in connection with a Sale.
The APA
provides, and the agreement from another bidder may also provide, for the
Proposed Buyer, or the Winning Competing Bidder (as the case may be), to add or
remove Purchased Contracts or Purchased Leases from the Cure Schedule at any
time up until Closing. As the Debtors are advised by the Proposed
Buyer, or the Winning Competing Bidder (as the case may be), that it desires to
assume and assign an executory contract or unexpired lease, the Debtors will
file an amended or supplemental Section 365 Notice adding or removing such
contracts or leases thereto (any such added contract, an “Additional Contract”),
and shall provide notice of the proposed removal of an Assumed Contract or
assumption and assignment of the Additional Contracts to each affected
counterparty to such Additional Contracts.
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7. Objections
Objections,
if any, to the remaining relief sought in the Sale Motion must be in writing,
stating with particularity the grounds for such objections or other statements
of positions, comply with the Bankruptcy Code, the Bankruptcy Rules and the
Local Rules, and be filed and served so as to be actually received by
co-counsel to the Debtors, counsel to the Agent, the United States Trustee,
co-counsel to the Proposed Buyer, and [proposed] counsel to the Creditors
Committee, by 4:00 p.m. (prevailing Eastern Time) on the date that is 7 days
prior to the Sale Hearing Date.
Objections,
if any, to the information contained in the Supplement must be in writing,
comply with the Bankruptcy Code, the Bankruptcy Rules and the Local Rules, and
be filed and served so as to be actually received by
co-counsel to the Debtors, counsel to the Agent, the United States Trustee, and
[proposed] counsel to the Creditors Committee, by noon on the date that is one
day prior to the Sale Hearing Date.
Objections,
if any, that relate to (i) the proposed assumption and assignment of an Assigned
Agreement (including, but not limited to, any objections relating to the
validity of the Proposed Cure Amount as determined by the Debtors or otherwise
to assert that any amounts, defaults, conditions, or pecuniary losses must be
cured or satisfied under any of the assigned executory contracts or unexpired
leases, not including accrued but not yet due obligations, in order for such
contract to be assumed and/or assigned) or (ii) the rejection of a Rejected
Contract, as applicable (a “Section 365 Objection”) must be in writing, comply
with the Bankruptcy Code, the Bankruptcy Rules and the Local Rules, state the
basis of such objection with specificity, including, without limitation, the
cure amount alleged by such counterparty (if applicable), and include contact
information for such counterparty, and be filed and served so as to be actually
received by co-counsel to the Debtors, counsel to the Agent, the United States
Trustee, co-counsel to the Proposed Buyer, and [proposed] counsel to the
Creditors Committee, so that they are actually received by 4:00
p.m. (prevailing Eastern Time) on the date that is 10 days prior to the Sale
Hearing Date, or in the case of Additional Contracts, within 10 days after
receipt of a Section 365 Notice with respect thereto (as applicable, the
“Section 365 Objection Deadline”).
Unless a
Section 365 Objection is filed and served by a party to (a) an Assigned
Agreement or a party interested in an Assigned Agreement or (b) a Rejected
Contract, as applicable, by the Section 365 Objection Deadline, all interested
parties that have received actual or constructive notice thereof shall be deemed
to have waived and released any right to assert a Section 365 Objection and to
have otherwise consented to either (i) the assignment of the applicable Assigned
Agreement and shall be forever barred and estopped from asserting or claiming
against the Debtors, the Purchased Assets, the Proposed Buyer, or the Winning
Competing Bidder (as the case may be), or any other assignee of the applicable
Assigned Agreement, that any additional amounts are due or defaults exist, or
conditions to assignment must be satisfied, under such Assigned Agreement for
the period prior to the Sale Hearing Date, or (ii) the rejection of a Rejected
Contract, as applicable.
8. Court
Approval
A hearing
on all of the remaining relief requested in the Sale Motion and to consider the
results of the Auction (the “Sale Hearing”) will be held before the Honorable
Peter J. Walsh, United States Bankruptcy Court Judge, at the United States
Bankruptcy Court for the District of Delaware, 824 Market Street, 6th Floor,
Courtroom #2, Wilmington, Delaware 19801, on or about June 24, 2010 at [__:__
_].m. (prevailing Eastern Time), or as soon thereafter as counsel may be heard
(the “Sale Hearing Date”). The Sale will be subject to the entry of
an order of the Bankruptcy Court approving same.
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