FILED: NEW YORK COUNTY CLERK 06/05/2023 07:24 PM
`NYSCEF DOC. NO. 51
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`INDEX NO. 651544/2023
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`RECEIVED NYSCEF: 06/05/2023
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`Exhibit 27
`
`

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`INDEX NO. 651544/2023
`FILED: NEW YORK COUNTY CLERK 06/05/2023 07:24 PM
`18-13359-shl Doc 658 Filed 02/21/19 Entered 02/21/19 16:17:18 Main Document
`NYSCEF DOC. NO. 51
`RECEIVED NYSCEF: 06/05/2023
` Pg 1 of 98
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`
`In re:
`
`REPUBLIC METALS REFINING
`CORPORATION, et al.,1
`
`
`Debtors.
`
`IN THE UNITED STATES BANKRUPTCY COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
`)
`)
`)
`)
`)
`)
`)
`
`ORDER (A) APPROVING SALE OF SUBSTANTIALLY
`ALL OF DEBTORS' ASSETS “FREE AND CLEAR” OF ALL LIENS, CLAIMS,
`ENCUMBRANCES AND OTHER INTERESTS, (B) APPROVING ASSUMPTION
`AND ASSIGNMENT OF EXECUTORY CONTRACTS AND
`UNEXPIRED LEASES, AND (C) GRANTING RELATED RELIEF
`
`Upon consideration of the Motion for Order (i) Authorizing and Approving Procedures for
`
`Chapter 11
`
`
`
`
`
`Case No. 18-13359 (shl)
`
`
`(Jointly Administered)
`
`the Sale of the Debtors' Assets; (ii) Scheduling a Sale Hearing; (iii) Approving Procedures for
`
`Assumption and Assignment of Executory Contracts and Unexpired Leases in Connection with the
`
`Sale; (iv) Approving Sale of Property Free and Clear of Interests; and (v) Approving Form of
`
`Notice of Sale (the "Motion") [Doc. No. 358], 2 filed by the above-captioned Debtors and Debtors-
`
`in-possession (collectively, the "Debtors"); and a hearing having been held on January 9, 2019
`
`(the “Bid Procedures Hearing”), whereupon the Court entered an Order approving bidding
`
`procedures (the "Bid Procedures Order") [Doc. No. 399]; and the Debtors seeking approval to sell
`
`substantially all of their assets to the Successful Bidder (as defined in the Bid Procedures Order),
`
`Asahi Refining Florida Inc., a Delaware corporation (the "Purchaser"), “free and clear” of all
`
`
`1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor's federal tax identification
`number, include: Republic Metals Refining Corporation, 15 West 47th Street, Suites 206 and 209, New York, NY
`10036 (3194), Republic Metals Corporation, 12900 NW 38th Avenue, Miami, FL 33054 (4378), Republic Carbon
`Company, LLC, 5295 Northwest 163rd Street, Miami Gardens, FL 33014 (5833), Republic High Tech Metals, LLC,
`13001 NW 38 Avenue, Miami, FL 33054 (6102), RMC Diamonds, LLC, 12900 NW 38th Avenue, Miami, FL
`33054 (1507), RMC2, LLC, 12900 NW 38th Avenue, Miami, FL 33054 (4696), J & L Republic LLC, 12900 NW
`38th Avenue, Miami, FL 33054 (7604); R & R Metals, LLC, 12900 NW 38th Avenue, Miami, FL 33054 (7848),
`Republic Metals Trading (Shanghai) Co., Ltd., 276 Ningbo Road, Huangpu District, Shanghai, P.R. 200001 China
`(1639), and Republic Trans Mexico Metals, S.R.L., Francisco I. Madero No. 55 Piso 5, Local 409, Centro Joyero
`Edificio Central, Delegación Cuauhtémoc, Mexico DF 6000 (2942).
`
` 2
`
` All capitalized terms not otherwise defined in this Order have the meaning ascribed to them in the Motion.
`
`47231344;8
`
`

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`INDEX NO. 651544/2023
`FILED: NEW YORK COUNTY CLERK 06/05/2023 07:24 PM
`18-13359-shl Doc 658 Filed 02/21/19 Entered 02/21/19 16:17:18 Main Document
`NYSCEF DOC. NO. 51
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` Pg 2 of 98
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`liens, claims, encumbrances and other interests, upon the terms and conditions set forth in the
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`Asset Purchase Agreement by and between the Debtors and the Purchaser attached hereto
`
`(without exhibits or schedules) as Exhibit 1 (the "APA"); and the Debtors, in consultation with
`
`the Consultation Parties (as defined in the Bid Procedures Order), having determined that the
`
`APA and the transactions contemplated therein constitute the “highest and best” offer for the
`
`Assets (as defined in the APA); and a sale hearing having been commenced on February 13,
`
`2019 (the "Sale Hearing"), to consider the relief requested in the Motion and approval of the
`
`APA and the transactions contemplated thereby; and appearances of all interested parties having
`
`been noted on the record of the Sale Hearing; and upon all of the evidence presented in support
`
`of such relief and representations on the record by counsel at the Bid Procedures Hearing and
`
`Sale Hearing (including but not limited to testimony and other evidence proffered or adduced at
`
`such hearings); and the Court having found and determined that the relief granted herein is in
`
`the best interests of the Debtors, their estates, the Senior Lenders, and all other creditors, equity
`
`holders and parties in interest, and that the legal and factual bases set forth in the Motion and at
`
`the Bid Procedures Hearing and Sale Hearing establish just cause for the relief granted herein;
`
`and after due deliberation and sufficient cause appearing therefor, it is hereby
`
`FOUND AND DETERMINED THAT:3
`
`A.
`
`Jurisdiction. This Court has jurisdiction pursuant to 28 U.S.C. §§ 157 and 1134
`
`to hear and determine the Motion and grant the relief set forth in this Order. This is a core
`
`proceeding under 28 U.S.C. §§ 157(b)(2)(A), (D), (N) and (O).
`
`B.
`
`Venue. Venue in this District is proper pursuant to 28 U.S.C. §§ 1408 and 1409.
`
`
`3 The findings of fact and the 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 shall be determined to be a conclusion of law, it shall be so deemed,
`and to the extent any conclusion of law shall be determined to be a finding of fact, it shall be so deemed.
`
`2
`
`

`

`INDEX NO. 651544/2023
`FILED: NEW YORK COUNTY CLERK 06/05/2023 07:24 PM
`18-13359-shl Doc 658 Filed 02/21/19 Entered 02/21/19 16:17:18 Main Document
`NYSCEF DOC. NO. 51
`RECEIVED NYSCEF: 06/05/2023
` Pg 3 of 98
`
`C.
`
`Statutory Predicates. The statutory predicates for approval of the APA and the
`
`transactions contemplated therein are: (i) sections 105, 363, and 365 of the Bankruptcy Code;
`
`(ii) Bankruptcy Rules 2002(a)(2), 6004, 6006, 9007, and 9014; (iii) Local Rules 2002-1,
`
`6004-1, 6006-1, and 9006-1(b), and (iv) the Sale Guidelines.
`
`D.
`
`Notice. As evidenced by, inter alia, the affidavits of service filed by the Debtors,
`
`proper, timely, adequate, and sufficient notice of the Motion, the relief requested therein, the
`
`Auction, the Sale Hearing, the sale of the Debtors’ Assets to the Purchaser pursuant to the APA
`
`(the “Sale”), and the Assumption and Assignment of the Assumed Executory Contracts (as
`
`defined herein) to the Purchaser, has been provided in accordance with sections 102(1), 105(a),
`
`363, and 365 of the Bankruptcy Code and Bankruptcy Rules 2002, 6004, 6006, 9007, and 9014,
`
`including without limitation to the following parties (collectively, the “Notice Parties”): (i) the
`
`United States Trustee for the Southern District of New York; (ii) counsel to the Committee;
`
`(iii) counsel for the Senior Lenders; (iv) the Debtors' 30 largest unsecured creditors; (v) the
`
`United States Attorney's Offices for the Southern District of New York and the Southern District
`
`of Florida; (vi) the Internal Revenue Service; (vii) the office of the attorneys general for the
`
`states in which the Debtors operate; (viii) all state and local taxing authorities in the jurisdictions
`
`in which the Debtors have or may have any tax liability and any other governmental agency that
`
`is an interested party with respect to the Sale; (ix) the Environmental Protection Agency and any
`
`state and local environmental agencies in jurisdictions in which the Debtors may have
`
`environmental liabilities; (x) all parties who have expressed a written interest in some or all of
`
`the Assets; (xi) all parties which, to the best of the Debtors' knowledge, information, and belief,
`
`had asserted or then may have asserted a lien in any of the Debtors' Assets, (xii) all parties to
`
`executory contracts and unexpired leases proposed to be assumed and assigned, or rejected, in
`
`3
`
`

`

`INDEX NO. 651544/2023
`FILED: NEW YORK COUNTY CLERK 06/05/2023 07:24 PM
`18-13359-shl Doc 658 Filed 02/21/19 Entered 02/21/19 16:17:18 Main Document
`NYSCEF DOC. NO. 51
`RECEIVED NYSCEF: 06/05/2023
` Pg 4 of 98
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`connection with the transactions contemplated by the APA; and (xiii) all parties who have filed a
`
`notice of appearance and request for service of papers pursuant to Bankruptcy Rules 2002 and
`
`9010(b). The Debtors have complied with all obligations in the Bid Procedures Order to provide
`
`notice of the Auction, the Sale Hearing, and the Sale. No other or further notice is required.
`
`E.
`
`Executory Contracts/Unexpired Leases. The Debtors served notice upon all
`
`counterparties to executory Assigned Contracts and Assigned Leases proposed to be assumed
`
`and assigned in connection with the APA and the transactions contemplated thereby
`
`(collectively, the “Assumed Executory Contracts”): (i) that the Debtors seek to assume and
`
`assign such Assumed Executory Contracts at Closing (as defined in the APA), or such later date
`
`as provided in the APA or agreed between the parties thereto, and (ii) of the proposed Cure
`
`Amounts, if any. Such notice was proper, timely, adequate, and sufficient for purposes of
`
`Bankruptcy Rule 6006(c) and in compliance with the Bid Procedures Order. No other or further
`
`notice is required.
`
`F.
`
`Opportunity to be Heard. The Debtors afforded a reasonable opportunity to
`
`object or be heard regarding the relief requested in the Motion and the transactions contemplated
`
`thereby to all interested persons and entities, including, without limitation, the Notice Parties.
`
`All non-Debtor counterparties to Assumed Executory Contracts were given a reasonable
`
`opportunity to object or be heard, including in connection with their Cure Amounts, if any.
`
`G.
`
`Objections. All objections, if any, to the Motion or relief granted herein have
`
`been withdrawn or resolved and, to the extent not withdrawn or resolved, are hereby overruled.
`
`H. Marketing Process. As demonstrated by the testimony and other evidence
`
`proffered or adduced at the Bid Procedures Hearing and Sale Hearing and the representations of
`
`counsel made on the record at the Bid Procedures Hearing and Sale Hearing, (i) the Debtors
`
`4
`
`

`

`INDEX NO. 651544/2023
`FILED: NEW YORK COUNTY CLERK 06/05/2023 07:24 PM
`18-13359-shl Doc 658 Filed 02/21/19 Entered 02/21/19 16:17:18 Main Document
`NYSCEF DOC. NO. 51
`RECEIVED NYSCEF: 06/05/2023
` Pg 5 of 98
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`thoroughly marketed the Assets and conducted the bidding solicitation fairly, in accordance with
`
`the Bid Procedures Order and the sound exercise of their business judgment; (ii) the Debtors
`
`conducted a fair and open sale process; and (iii) the sale process, the Bid Procedures, and the
`
`Auction were noncollusive, duly noticed, and provided a full, fair, reasonable and adequate
`
`opportunity for any person or entity that either expressed an interest in acquiring or liquidating
`
`the Assets, or whom the Debtors believe may have an interest in acquiring or liquidating the
`
`Assets, to offer to purchase the Assets. The Debtors and Purchaser have respectively negotiated
`
`and undertaken their roles leading to entry into the APA and the Sale and the other transactions
`
`contemplated thereby in a diligent, noncollusive, fair, reasonable, and good faith manner.
`
`I.
`
`Highest and Best Offer. The APA, including the form and total consideration to
`
`be realized by the Debtors pursuant to the APA, (i) was the result of the sale process conducted
`
`by the Debtors pursuant to the Bid Procedures Order, (ii) constitutes the highest or otherwise best
`
`offer received by the Debtors for the Assets, (iii) is fair and reasonable, and (iv) is in the best
`
`interests of the Debtors, their estates, creditors, equity holders, and all other parties in interest.
`
`There is no legal or equitable reason to delay entry into the APA, and the transactions
`
`contemplated therein, including, without limitation, the Sale of the Assets to the Purchaser.
`
`J.
`
`Business Judgment. The Debtors' decision, in consultation with the Consultation
`
`Parties, to (i) enter into the APA, and (ii) perform as required by the APA and consummate the
`
`transactions contemplated thereby, is a reasonable exercise of the sound business judgment of the
`
`Debtors and Mr. Avila, as CRO of the Debtors, consistent with their fiduciary duties, and is in
`
`the best interests of the Debtors, the estates, creditors, and all other parties in interest.
`
`K.
`
`Final Order; Time of the Essence. This Order constitutes a final and appealable
`
`order within the meaning of 28 U.S.C. § 158(a). Time is of the essence in effectuating the APA
`
`5
`
`

`

`INDEX NO. 651544/2023
`FILED: NEW YORK COUNTY CLERK 06/05/2023 07:24 PM
`18-13359-shl Doc 658 Filed 02/21/19 Entered 02/21/19 16:17:18 Main Document
`NYSCEF DOC. NO. 51
`RECEIVED NYSCEF: 06/05/2023
` Pg 6 of 98
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`and proceeding with the Sale and other transactions contemplated therein without interruption.
`
`Based upon the testimony and other evidence proffered or adduced at the Bid Procedures
`
`Hearing and Sale Hearing, and the representations of counsel made on the record at the Bid
`
`Procedures Hearing and Sale Hearing, the Sale and other transactions contemplated by the APA
`
`must be closed as soon as reasonably practicable after entry of this Order to maximize the value
`
`that the Debtors’ estates may realize from entering into the APA. Accordingly, to any extent
`
`necessary under Bankruptcy Rule 9014 and Rule 54(b) of the Federal Rules of Civil Procedure,
`
`the Court finds that there is no just reason to delay implementation of this Order, and expressly
`
`directs that the stays contemplated by Bankruptcy Rules 6004(h) and 6006(d) be and hereby are
`
`vacated to any extent necessary to permit the immediate effectiveness of this Order as set forth
`
`herein. In the absence of a stay pending appeal, the Purchaser, being a good faith purchaser
`
`under section 363(m) of the Bankruptcy Code, may close the APA and the Sale and other
`
`transactions contemplated thereby at any time after entry of this Order.
`
`L.
`
`Sale Free and Clear. A sale of the Assets other than one free and clear of liens,
`
`claims, encumbrances, defenses (including, without limitation, rights of setoff and recoupment)
`
`and interests, including, without limitation, security interests of whatever kind or nature,
`
`mortgages, conditional sales or
`
`title retention agreements, pledges, deeds of
`
`trust,
`
`hypothecations, liens, encumbrances, assignments, preferences, debts, easements, charges, suits,
`
`licenses, options, rights-of-recovery, judgments, orders and decrees of any court or foreign or
`
`domestic governmental entity, taxes (including foreign, state and local taxes), licenses,
`
`covenants,
`
`restrictions,
`
`indentures,
`
`instruments,
`
`leases, options, off-sets, claims
`
`for
`
`reimbursement, contribution, indemnity or exoneration, successor, product, environmental, tax,
`
`labor, ERISA, CERCLA, alter ego and other liabilities, causes of action, contract rights and
`
`6
`
`

`

`INDEX NO. 651544/2023
`FILED: NEW YORK COUNTY CLERK 06/05/2023 07:24 PM
`18-13359-shl Doc 658 Filed 02/21/19 Entered 02/21/19 16:17:18 Main Document
`NYSCEF DOC. NO. 51
`RECEIVED NYSCEF: 06/05/2023
` Pg 7 of 98
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`claims, to the fullest extent of the law, in each case, of any kind or nature (including, without
`
`limitation, all "claims" as defined in section 101(5) of the Bankruptcy Code), known or
`
`unknown, whether pre-petition or post-petition, secured or unsecured, choate or inchoate, filed or
`
`unfiled, scheduled or unscheduled, perfected or unperfected, liquidated or unliquidated, noticed
`
`or unnoticed, recorded or unrecorded, contingent or non-contingent, material or non-material,
`
`statutory or non-statutory, matured or unmatured, legal or equitable (collectively, "Interests
`
`or Claims") and without the protections of this Order would hinder the Debtors' ability to
`
`obtain the consideration provided for in the APA and, thus, would impact materially and
`
`adversely the value that the Debtors' estates would be able to obtain for the sale of such
`
`assets. But for the protections afforded to the Purchaser under the Bankruptcy Code and this
`
`Order, the Purchaser would not have offered to pay the consideration contemplated in the
`
`APA. The Senior Lenders have consented to the sale of the Assets pursuant to the APA,
`
`subject to application of proceeds from such Sale in accordance with a further Order of this
`
`Court (other than payment of the Break-up Fee to the Stalking Horse Bidder and Ad Valorem
`
`Taxes (as defined below), each to the extent authorized below). In addition, each entity with an
`
`Interest or Claim upon the Assets, (i) has either consented to the Sale, has not objected, or is
`
`deemed to have consented to the Sale, (ii) could be compelled in a legal or equitable proceeding
`
`to accept money satisfaction of such interest, or (iii) otherwise falls within the provisions of
`
`section 363(f) of the Bankruptcy Code, and therefore, in each case, one or more of the standards
`
`set forth in section 363(f)(1)-(5) of the Bankruptcy Code has been satisfied. Those holders of
`
`Interests or Claims who did not object, or who withdrew objections, to the Motion are deemed
`
`to have consented pursuant to section 363(f)(2) of the Bankruptcy Code. Therefore, approval of
`
`the APA and the consummation of the Sale free and clear of Interests or Claims (with such
`
`7
`
`

`

`INDEX NO. 651544/2023
`FILED: NEW YORK COUNTY CLERK 06/05/2023 07:24 PM
`18-13359-shl Doc 658 Filed 02/21/19 Entered 02/21/19 16:17:18 Main Document
`NYSCEF DOC. NO. 51
`RECEIVED NYSCEF: 06/05/2023
` Pg 8 of 98
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`Interests and Claims attaching to the proceeds of such sale by the Debtors) is appropriate
`
`pursuant to section 363(f) of the Bankruptcy Code and is in the best interests of the Debtors'
`
`estates, their creditors and other parties in interest.
`
`M.
`
`Attachment of Interests or Claims to Proceeds. Any currently existing Interests
`
`or Claims encumbering all or any portion of the Assets (unless otherwise paid and satisfied at
`
`Closing) shall attach to the amounts to be received by the Debtors under the APA, with the same
`
`validity, priority, force and effect as the same had with respect to the assets at issue, subject to any
`
`and all defenses, claims and/or counterclaims or setoffs that may exist. The Purchaser has not
`
`agreed to assume and shall have no obligations with respect to any liabilities of the Debtors or
`
`their subsidiaries or affiliates other than, solely with respect to the Purchaser, the Assumed
`
`Liabilities (as defined in the APA).
`
`N.
`
`Arm's-length Sale; No Fraudulent Transfer. The APA, including the
`
`consideration to be paid by the Purchaser, is the product of negotiations between the Debtors and
`
`the Purchaser that were conducted at arm's-length, in good faith, and without collusion, and
`
`constitutes reasonably equivalent value and fair and adequate consideration for the Assets under
`
`the Bankruptcy Code, the Uniform Fraudulent Transfer Act, the Uniform Fraudulent
`
`Conveyance Act, and the laws of the United States, any state, territory, possession thereof or the
`
`District of Columbia. The terms and conditions of the APA are fair and reasonable under these
`
`circumstances and were not entered into for the purpose of, nor do they have the effect of,
`
`hindering, delaying or defrauding the Debtors or their creditors under any applicable laws.
`
`O.
`
`No Insider Status. The Purchaser is not an "insider" of the Debtors, as that term
`
`is defined in section 101(31) of the Bankruptcy Code. No common identity of directors or
`
`controlling stockholders exists between the Purchaser and the Debtors.
`
`8
`
`

`

`INDEX NO. 651544/2023
`FILED: NEW YORK COUNTY CLERK 06/05/2023 07:24 PM
`18-13359-shl Doc 658 Filed 02/21/19 Entered 02/21/19 16:17:18 Main Document
`NYSCEF DOC. NO. 51
`RECEIVED NYSCEF: 06/05/2023
` Pg 9 of 98
`
`P.
`
`Good Faith. The Debtors, their management and board of directors, the Purchaser
`
`and its officers, directors, employees, agents and representatives, and the Purchaser’s direct and
`
`indirect equity holders and their respective officers, directors, employees, agents and
`
`representatives, acted in good faith in the bidding process. The Debtors and their advisors, after
`
`appropriate deliberation and in consultation with the Consultation Parties, determined that the
`
`APA constitutes the highest and best offer for the Assets, following multiple rounds of
`
`competitive bids received by the Debtors during the Auction conducted on January 31, 2019.
`
`The APA was negotiated and entered into by the parties thereto based upon arm's length
`
`bargaining, without collusion or fraud, and in good faith as that term is used in section 363(m)
`
`of the Bankruptcy Code. The Purchaser is purchasing the Assets in good faith and is entitled
`
`to the full protection of section 363(m) of the Bankruptcy Code, including without limitation
`
`in the event that this Order is reversed or modified on appeal. The Debtors were free to deal
`
`with any other party interested in buying or selling on behalf of the Debtors' estates some or
`
`all of the Assets. Neither the Debtors nor the Purchaser engaged in any conduct that would
`
`cause or permit the Sale, the APA, or any related action or the transactions contemplated
`
`thereby to be avoided under section 363(n) of the Bankruptcy Code, or that would prevent the
`
`application of section 363(m) of the Bankruptcy Code. The Purchaser did not violate section
`
`363(n) of the Bankruptcy Code by any action or inaction. Specifically, the Purchaser has not
`
`acted in a collusive manner with any person or entity and was not controlled by any
`
`agreement among bidders. The Purchaser's prospective performance and payment of amounts
`
`owing under the APA are in good faith and for valid business purposes and uses.
`
`Q.
`
`Corporate Authority. The Debtors have full corporate or other power and
`
`authority to execute, deliver, and perform their obligations under the APA and to consummate all
`
`9
`
`

`

`INDEX NO. 651544/2023
`FILED: NEW YORK COUNTY CLERK 06/05/2023 07:24 PM
`18-13359-shl Doc 658 Filed 02/21/19 Entered 02/21/19 16:17:18 Main Document
`NYSCEF DOC. NO. 51
`RECEIVED NYSCEF: 06/05/2023
` Pg 10 of 98
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`transactions contemplated thereby (including, without limitation, entering into and performing
`
`under each of the ancillary agreements, instruments or other documents contemplated by the
`
`APA) and entry into, delivery and performance under the APA and consummation of all
`
`transactions contemplated thereby (including, without limitation, entering into and performing
`
`under each of the ancillary agreements, instruments or other documents contemplated by the
`
`APA) has been duly and validly authorized by all necessary corporate or similar action. No
`
`consents or approvals, other than those expressly provided for herein or in the APA, are required
`
`for the Debtors to consummate such transactions.
`
`R.
`
`No Successor Liability. No sale, transfer, or other disposition of the Assets
`
`pursuant to the APA, entry in the APA or consummation of the transactions contemplated by the
`
`APA, will subject the Purchaser to any liability for Interests or Claims asserted against the
`
`Debtors or the Debtors' interests in the Assets by reason of such transfer under any laws,
`
`including, without limitation, any bulk-transfer laws or any theory of successor or transferee
`
`liability, antitrust, environmental, product line, de facto merger, or substantial continuity or
`
`similar theories. The Purchaser is not the alter ego of, a successor in interest to, or a continuation
`
`of the Debtors or their estates, and there is no continuity between the Purchaser, on the one hand,
`
`and the Debtors, on the other hand. The Purchaser is not holding itself out to the public as a
`
`continuation of the Debtors. The Purchaser is not a successor to the Debtors or their estates and
`
`consummation of the Sale contemplated by the APA does not amount to a consolidation, merger,
`
`or de facto merger of the Purchaser, on the one hand, and the Debtors, on the other hand.
`
`S.
`
`No De Facto or Sub Rosa Plan. The Debtors have demonstrated compelling
`
`circumstances and a good, sufficient and sound business purpose and justification for the Sale
`
`prior to, and outside of, a plan of reorganization. Entry into the APA and the transactions
`
`10
`
`

`

`INDEX NO. 651544/2023
`FILED: NEW YORK COUNTY CLERK 06/05/2023 07:24 PM
`18-13359-shl Doc 658 Filed 02/21/19 Entered 02/21/19 16:17:18 Main Document
`NYSCEF DOC. NO. 51
`RECEIVED NYSCEF: 06/05/2023
` Pg 11 of 98
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`contemplated thereby neither impermissibly restructures the rights of the Debtors' creditors or
`
`equity holders, nor impermissibly dictates the terms of a liquidating plan of reorganization for
`
`the Debtors. Entry into the APA does not constitute a de facto or sub rosa chapter 11 plan.
`
`T.
`
`Assumption and Assignment; Cure. The assumption and assignment of the
`
`Assumed Executory Contracts pursuant to the terms of this Order is integral to the APA and is in
`
`the best interests of the Debtors and their estates, creditors, equity holders and other parties in
`
`interest, and represents the reasonable exercise of sound and prudent business judgments by the
`
`Debtors. The Debtors have met all the requirements of section 365(b) of the Bankruptcy Code
`
`for each Assumed Executory Contract. The Purchaser has (i) cured and/or provided adequate
`
`assurance of cure of any default existing prior to the Closing under all Assumed Executory
`
`Contracts, within the meaning of section 365(b)(1)(A) of the Bankruptcy Code; (ii) provided
`
`compensation or adequate assurance of compensation to all counterparties for actual pecuniary
`
`loss, if any, resulting from a default prior to Closing under any Assumed Executory Contracts;
`
`and (iii) provided adequate assurance of future performance under the Assumed Executory
`
`Contracts, all within the meaning of sections 365(b)(1)(B) and (C) of the Bankruptcy Code.
`
`U.
`
`Cure Amounts. Except as provided in this Order or as subsequently agreed by
`
`the parties or determined by this Court, the Cure Amounts on Exhibit 2 are the sole amounts
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`necessary under sections 365(b)(1)(A) and (B) and 365(f)(2)(A) of the Bankruptcy Code to cure
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`all monetary defaults and pay all actual pecuniary losses under Assumed Executory Contracts.
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`V.
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`Back-Up Bidder. Valcambi SA is designated the Back-Up Bidder, with a Back-
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`Up bid of $25,000,000 (25 Million Dollars).
`
`11
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`INDEX NO. 651544/2023
`FILED: NEW YORK COUNTY CLERK 06/05/2023 07:24 PM
`18-13359-shl Doc 658 Filed 02/21/19 Entered 02/21/19 16:17:18 Main Document
`NYSCEF DOC. NO. 51
`RECEIVED NYSCEF: 06/05/2023
` Pg 12 of 98
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`NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED
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`THAT:
`A. Motion Granted, Objections Overruled.
`
`1.
`
`The relief requested in the Motion is granted as set forth herein, and the Sale
`
`contemplated by this Order and the APA is approved as set forth herein.
`
`2.
`
`Any objections to the Motion or the relief requested therein that have not been
`
`withdrawn, waived, or settled, and all reservations of rights included in such objections, are
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`overruled in all respects and denied. All persons and entities who did not object or withdraw
`
`their objections to the Motion are hereby deemed to have provided their irrevocable consent to
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`the Sale of the Assets to the Purchaser pursuant to section 363(f)(2) of the Bankruptcy Code.
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`B.
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`3.
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`Back-up Bidder.
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`Should the Purchaser fail to consummate the Sale, the Debtors are authorized to
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`consummate the Sale of the Assets to the Back-up Bidder, on the terms set forth in the Back-up
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`Bidder APA, in which event, the Back-up Bidder and the Back-up APA shall be substituted in
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`the place of Purchaser and APA, as applicable in this Order, as if originally set forth herein.
`
`C.
`
`4.
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`APA Approved and Authorized.
`
`The APA and all terms and conditions thereof are hereby approved pursuant to
`
`(i) sections 105, 363, and 365 of the Bankruptcy Code; (ii) Bankruptcy Rules 2002(a)(2),
`
`6004, 6006, 9007, and 9014; (iii) Local Rules 2002-1, 6004-1, 6006-1, and 9006-1(b); and
`
`(iv) the Sale Guidelines. The Debtors are hereby authorized, empowered and directed to enter
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`into and perform under the APA and the transactions contemplated therein (including, without
`
`limitation, entering into and performing under each of the ancillary agreements, instruments, or
`
`other documents contemplated thereby), each of which is hereby approved in its entirety and is
`
`incorporated herein by reference. The failure to include specifically any particular provision of
`
`12
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`INDEX NO. 651544/2023
`FILED: NEW YORK COUNTY CLERK 06/05/2023 07:24 PM
`18-13359-shl Doc 658 Filed 02/21/19 Entered 02/21/19 16:17:18 Main Document
`NYSCEF DOC. NO. 51
`RECEIVED NYSCEF: 06/05/2023
` Pg 13 of 98
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`the APA in this Order shall not diminish or impair the effectiveness of such provisions, it being
`
`the intent of the Court that the APA and all of its provisions, payments and transaction, be
`
`authorized and approved in their entirety. Likewise, all of the provisions of this Order are
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`nonseverable and mutually dependent.
`
`5.
`
`Subject to the provisions of this Order, the Debtors and the Purchaser are hereby
`
`authorized, pursuant to sections 105(a) and 363(b)(1) of the Bankruptcy Code, to consummate
`
`the Sale in accordance with the APA.
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`6.
`
`Pursuant to section 363(b) of the Bankruptcy Code, the Debtors, the Purchaser,
`
`the Purchaser’s direct and indirect equity holders, and each of the respective officers, directors,
`
`employees, agents and representatives of any of the foregoing, are hereby authorized and
`
`directed to execute such documents and to take any and all actions as are reasonably necessary or
`
`appropriate to consummate the Sale contemplated by the APA and to effectuate the APA and the
`
`transactions contemplated therein. The Debtors are authorized to take all actions necessary to
`
`effectuate the relief granted pursuant to this Order.
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`D.
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`7.
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`Proceeds; Break-Up Fee.
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`At or following the Closing, the Debtors are authorized to pay (i) the Break-up
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`Fee to the Stalking Horse Bidder pursuant to the Bid Procedures Order and (ii) ad valorem taxes
`
`(the “Ad Valorem Taxes”) assessed against the 12800 Real Property (as defined below) for 2018,
`
`plus the pro rata amount of ad valorem taxes for 2019 for the period prior to Closing, calculated
`
`at 105% of ad valorem taxes assessed for 2018. All other amounts payable by the Purchaser
`
`under the APA shall be payable to the Debtors to be held in a separate and segregated debtor-in-
`
`possession account for distribution pursuant to a further Order of this Court.
`
`13
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`INDEX NO. 651544/2023
`FILED: NEW YORK COUNTY CLERK 06/05/2023 07:24 PM
`18-13359-shl Doc 658 Filed 02/21/19 Entered 02/21/19 16:17:18 Main Document
`NYSCEF DOC. NO. 51
`RECEIVED NYSCEF: 06/05/2023
` Pg 14 of 98
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`E.
`
`8.
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`Order Binding.
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`This Order may be presented to any and all entities, including, without limitation,
`
`all filing agents, filing officers, title agents, title companies, recorders of mortgages, recorders of
`
`deeds, registrars of deeds, 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, to facilitate the effectuation of the duties of its 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 the Assets. This Order, and the terms and
`
`provisions of the APA, shall be binding in all respects upon the Debtors, their estates, all creditors
`
`and equity holders (whether known or unknown) of any Debtor, the Purchaser, the Purchaser’s
`
`affiliates, successors and assigns, and any affected third parties including, but not limited to, all
`
`persons asserting any Interest or Claim against the Debtors or in the Assets or any portion thereof,
`
`and all counterparties to any executory contract or unexpired lease of the Debtors, notwithstanding
`
`any subsequent appointment of any trustee, party, entity, or other fiduciary under any section of the
`
`Bankruptcy Code with respect to the forgoing parties, and as to such tr