Advancedlflfl
`
`March 6, 2003
`
`United States Department of Commerce
`Patent and Trademark-Office
`
`Trademark Trial and Appeal Board
`2900 Crystal Drive
`Arlington, VA 22202-3513
`
`Re:
`
`Opposition No. 91/151,935
`Cancellation No 92/040,892
`
`Dear Sirs:
`
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`ow
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`
`£1
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`
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`73"
`«.1:
`E’,
`
`This letter is in response to your communication mailed February 20, 2003 regarding the matters
`referenced above.
`
`AdvancedMD Software, Inc. respectfully submits copies of the following documents to
`substantiate that the assets of Medical Software Solutions, Inc. were sold to AdvancedMD
`Software, Inc as of September 30, 2002, including Trademark Serial Nos 75/857623 and
`75/857624.
`
`1. Court order dated 9/27/02 (authorizing sale of the assets)
`2. Amended Sale Motion, including the Asset Purchase Agreement. Please note that
`Section 2.l(i) references that the trademarks and service marks (and applications and
`registrations thereof were included in the Assets to Be Sold).
`Second Amended Sale Motion
`
`DJ
`
`4. Bill of Sale, Assignment and Assumption Agreement naming AdvancedMD Software,
`Inc. the Transferee under the Asset Purchase Agreement.
`
`Please further be advised that AdvancedMD Software, Inc has moved and all further
`communication should be address to:
`
`AdvancedMD Software, Inc.
`2795 E. Cottonwood Parkway, Ste 120
`Salt Lake City, UT 84121.
`
`As referenced in previous communication to the Trademark Trial and Appeal Board,
`AdvancedMD Software, Inc. wishes to abandon Serial Nos. 75/857623 and 75/857624.
`
`Sincerely,
`
`/£4‘ 2) %———~
`
`Michele D. Hilton
`Chief Financial Officer
`
`M
`
`2
`
`cc:
`
`J. Rodman Steele, Jr., Akermann Senterfitt (without attachments)
`
`AdvancedMD Software, Inc o wwwamdsoftwarecom
`2795 E. Cottonwood Pkwy., Suite 120 - Salt Lake City, Utah 84121
`Phone: 801-983-0880 - Fax: 801-983-0898
`
`Micgosofl"
`c E R T I F I E D
`“"”‘"e’
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`10/01/2002 16:06 FAX 8012571800
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`SNELL 8: WILMER
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`— @002
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`Order Prepared and Submitted by: David E. Leta, Esq. (1937)
`
`Lori A. Schmig, Esq., Pro Hac Vice
`Matthew M. Boley, Esq. (8536)
`SNELL & WILMER
`
`.
`.
`’
`
`'
`
`‘
`
`SEP 2 7 2002
`
`U5. 3‘},‘5,‘,’,§’,R,',‘fi§,“§ou,,,
`
`15 West South Temple, Suite 1200
`Salt Lake City, UT 84101
`Telephone: (801)257-1900
`Facsimile: (801)257-1800
`
`Attomeys for the Debtor-in—Possession
`
`
`IN THE UNITED STATES BANKRUPTCY COURT
`FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
`
`
`
`Tax ID# 87-0563963
`
`
`
`ORDER UNDER 11 U.s.c. §§ 105(2), 363, 365 AND 1146(0), AND BANKRUPTCY
`RULES 2002, 6004, 6006-AND 9014 (A) AUTHORIZING THE SALE OF
`SUBSTANTIALLY ALL OF THE DEBTORS’ ASSETS, FREE AND CLEAR OF LIENS,
`CLAIMS, ENCUMBRANCES ANDE INTERESTS, (B) DETERMINING THAT SUCI-I
`SALE IS EXEMPT FROM ANY STAMP, TRANSFER, RECORDING, OR SIMILAR -
`TAX, (C) AUTHORIZING THE ASSUMPTION AND ASSIGNMENT OF CERTAIN
`EXECUTORY CONTRACTS AND UNEXPIRED LEASES, AND
`(D) GRANTING RELATED RELIEF
`
`
`This matter came before the Court on September 26, 2002 (the “Approval Hearing")
`upon the motion, dated August 22, 2002 (the “Sale Motion”),1 filed by Medical Software
`Solutions,
`Inc. d/b/a PerfectPract1'ce.lVlD, debtor and debtor-in-possession (the “Dcbtor”),
`
`seeking, inter alia, entry of an order (the “Approval Order”): (a) authorizing the sale (the “Sale”)
`of substantially all ofthe Debtor’s assets (collectively, the “Assets”), as more particularly identified
`
`Unless otherwise defined herein, capitalized terms shall have the meanings ascribed to them in
`1
`the Sale Motion and the Purchase Agreement.
`
`219459.4
`
`' Inre:
`
`MEDICAL SOFTWARE SOLUTIONS
`d/b/a PERFECTPRACTICEMD,
`
`Debtor-in—Possession.
`
`Bankruptcy No. 02-32330-WTHT
`
`' Chapter 11
`
`I Honorable William Thomas Thurman
`
`

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`10/01/2002 16:06 FAX 8012571800
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`SNELL 8: WILMER
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`003
`
`in the Asset Purchase Agreenient, dated August 22, 2002 (the “Purchase Agreement”), by and
`between the Debtor and DOMINION
`V, a Delaware limited partnership, WINDWARD
`
`VENTURES 2000, L.P., a Delaware limited partnership, and WINDWARD VENTURES 2000~A,
`
`L.P., a Delaware limited partnership, or their .desigJiee(s) (collectively, the "APA Buyers"), free
`and clear of all liens, claims, encumbrances and interests, (b) detennining that the Sale is exempt
`from any stamp, transfer, recording or similar tax, (c) autliorizing the assumption and assignment to
`Buyer of certain executory contracts andiunexpired leases, and (d) granting related relief. At the
`
`Approval Hearing, counsel for theDebtor and other counsel and parties-in-interest entered their
`
`appearances on the record.
`After carefully reviewing theSale Motion, the report of the chapter 11 examiner, D. Ray
`Strong (the “Examiner” , and such other matters in the file as the Court deemed appropriate,
`
`afier receiving and weighing the testimony and other evidence offered at the Approval Hearing,
`afier hearing the statementsand representations of counsel and all persons who desired to be
`
`heard at the Approval Hearing, and after ‘considering such other and further matters as the Court
`
`deemed appropriate, the Court hereby
`
`mus AND CONCLUDES as renews;
`
`The Court has jurisdiction over the Sale Motion pursuant to 28 U.S.C. §§ 157 and
`A.
`1334. This matter is a core proceeding pursuant to 28 U.S.C. §. 157(b)(2)(A), (N), and (0). Venue
`
`ofthis case and the Sale Motion in this district is proper under 28 U.S.C. §§ 1408 and 1409.
`
`B.
`The statutory and legal predicates for the relief sought in the Sale Motion are '
`sections 105(a); 363(b), (t), (In), and (n); 365; and 1146(0) of the United States Bankruptcy Code,
`(11 U-S.C_. § 101 et seq. (the “Bankruptcy Code”), and Federal Rules of Baulcruptcy Procedure
`
`2002, 6004, 6006, and 9014.
`
`e C.
`
`As evidenced by the certificates of service and publication previously filed with
`
`the Court, and based on the representations of counsel at the Approval Hearing, (i) proper,
`
`2194594
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`2
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`10/01/2002 16:06 FAX 8012571800
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`SNELL & WILMER
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`004
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`timely, adequate and sufficient notice of the Sale Motion, the Auction, the Sale, the Approval
`Hearing, and the assumption and assignment of the Assumed Contracts has been provided to all
`
`parties-in-interest in accordance with 11 U.S.C. §§ 102(1), 363 and 365 and Federal Rules of
`
`Bankruptcy Procedure 2002, 6004, and 9014 and in compliance with the Court’s Order of
`
`September 4, 2002 (the “Procedures Order”),
`
`(ii) such notice was good, sufficient and
`
`appropriate under the particular circumstances, and (iii) noother or further notice of the Sale
`
`_ Motion, the Auction, the Sale, the Approval Hearing, or the assumption and assignment of the
`
`Assumed Contracts is or shall be required.
`
`D.
`
`The Debtor has articulated good and sufficient reasons for: (i) approving the Sale of
`
`the Assets free and clear of all liens, claims, encumbrances and interests, (ii) determining that the
`
`Sale is exempt from any stamp,
`
`transfer, recording or similar tax, and (iii) authorizing the
`
`assumption and assignment to Buyer of certain executory contracts and unexpired leases.
`
`E.
`
`The Debtor has marketed the Assets and conducted the Sale process in compliance
`
`with the Procedures Order.
`
`F.
`
`Approval of the Purchase Agreement and consummation of the Sale at this time
`
`are in the best interests of the_Debtor, its creditors, its estates and all other parties in interest.
`
`G.
`
`The Debtor has demonstrated both (1) a good, sufficient and sound business
`
`purpose and justification, and (2) compelling circumstances to proceed with the Sale prior to, and
`
`outside of, a plan of reorganization pursuant to 11 U.S.C. § 363(b), in that, among other things:
`
`Given‘ the Debtor’s current financial and business condition, no prospective
`(i)
`buyer appears willing to proceed to acquire the Debtor’s business unless the Sale can be
`
`consummated quickly. The timing of the Sale is of importance to all such prospective
`
`buyers.
`
`(ii)
`
`The Debtor diligently and in good faith has marketed the Assets to all parties
`
`known to have a past or present interest in acquiring the Assets to secure the highest and
`
`21 9459.4
`
`3
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`

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`10/01/2002 16:07 FAX 8012571800
`SNELL & WILMER
`005
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`best offer therefor by, among other t.hings,‘(i) giving a notice of the Sale and the Sale
`
`process to each of the persons or entities that previously-had expressed an interest in the _
`
`Debtor7s Assets, (ii) mailing relevant due diligence information to potential purchasers, and
`
`(iii) providing potential purchasers with access to management.
`
`(iii)
`
`The Sale of the Assets at this time pursuant to 11 U.S.C. § 363(b), is the only
`
`viable alternative to preserve the enterprise value of the Assets‘ and maximize the realizable
`
`cash value of the Assets -for
`
`the benefit of the Debtor’s estate and all
`
`interested
`
`constituencies. Delaying the Sale ofthe Assets will result in a diminution in the value ofthe
`
`Assets. Further, any delay of the Sale of the Assets may result in an alternative outcome that
`
`will achieve far less value for creditors.
`H.
`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:
`
`(i") the United States Trustee; (ii) counsel for the Buyers; (iii) any persons who have entered an
`
`appearance in the case or otherwise requested notice; (iv) all persons lcnown to have expressed an
`
`interest in a transaction with respect to the Assets during the past twenty-four (24) months; (v) all
`
`persons known to have a present interest in the Assets; (vi) all federal, state, and local regulatory or
`
`taxing authorities or recording omces which have a known interest in the relief requested by the
`
`Sale Motion; (vii) all parties to Assumed Contracts; (viii) all secured creditors ofthe Debtor; (ix) all
`known unsecured creditors of the Debtor, (x) all known equity security holders of the Debtor,
`(xi) the United States Attorney; (xii) the Securities and Exchange Commission; (xiii) the Internal
`
`Revenue Service;
`
`(xiv)
`
`the Pension Benefit Guaranty Corporation;
`
`(xv) counsel
`
`for any
`
`comnu'ttee(_s) formed pursuant to 112 U.S.C. § 1102; and (xvi) all other entities identified on the
`
`Debtor’s Official Service List.
`
`I.
`
`The Purchase Agreement was negotiated, proposed and entered into by the Debtor ’
`
`and APA Buyers without collusion, in good faith and fi'om arm’s-length bargaining positions.
`
`2194594
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`10/01/2002 16:07 FAX 8012571800
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`SNELL 8: WILMER
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`[Z1006
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`‘ Neither the Debtor nor the APA Buyers has engaged in any conduct that would cause or permit
`
`the Purchase Agreement to be avoided under 11 U.S.C. § 363(n).
`
`J.
`
`As used in this Order, the term "Ultimate Buyer" refers to the APA Buyers or
`
`their designee(s), since no higher and better offer was submitted for the Assets by -a Qualified
`
`Bidder prior to the expiration of the ‘Bid Deadline.
`
`K.
`
`Ultimate Buyer is a good faith purchaser under 11 U.S.C. § 363(m) and, as such,
`
`is entitled to all of the protections afforded under said section of the Bankruptcy Code. ‘Ultimate
`Buyer will be acting in good faith within the meaning of 11 U.S.C. § 363(m) in consummating
`the transactions contemplated by the Purchase Agreement and this Approval Order.
`
`The consideration provided by Ultimate Buyer for the Assets pursuant to the
`L.
`Purchase Agreement (i)is fair and reasonable, (ii) is the highest and best offer for the Assets,
`(iii) will provide a greater recovery for the Debtor’s creditors than would be provided by any
`other practicable alternative, and (iv) constitutes reasonably equivalent value and fair
`consideration under the Banlcruptcy Code and under the laws ofthe state ofUtah.
`
`M.
`
`The Sale must be approved and consummated promptly in order toepreserve the
`
`value of the Assets.
`
`N.
`
`The transfer of the Assets to Ultimate Buyer will be a legal, valid and effective
`
`transfer of the Assets, and will vest Ultimate Buyer with all right, title and interest of the Debtor
`
`to the Assets free and clear of all mortgages, security interests, conditional sale or other title
`
`retention agreements, pledges, liens (as defined in 11 U.S.C. § 101(37)), claims (as defined in 11
`U.S.C. § 101(5)), judgments, demands, easements, charges, encumbrances, defects, options, rights
`of first refusal,
`interests, or restrictions of any kind (collectively, “Interests”) (except
`those
`
`expressly assumed, pursuant to and as described in the Purchase Agreement), including, without
`
`limitation, Interests (A) that purport to give to any party a right or option to effect any forfeiture,‘
`
`modification, right of first refusal or termination of the Debtor’s or Ultimate Buyer’s interest in
`
`2194s9.4
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`5
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`10/01/2002 16:07 FAX 801257-1800
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`SNELL 8: WILMER
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`007
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`the Assets,~or any similar rights, and (B) relating to taxes arising under, out of, or in connection
`
`with the transfer of the Assets or
`
`any way relating to the operation of the Debtor’s business
`
`prior to the date (the “Closing Date”) of the consummation of the Purchase Agreement (the
`
`“Closing”)_
`
`O.
`
`The Ultimate Buyer would not have entered into the Purchase Agreement and
`
`thus adversely affecting the
`would not consummate the transactions contemplated thereby,
`Debtor, its estate and its creditors, if the Sale of the Assets to Ultimate Buyer and the assignment
`
`of the Assumed Contracts to Ultimate Buyer was not free and clear of all Interests or any kind or
`
`nature whatsoever, or if Ultimate Buyer would, or in "the future could, be liable for any of the
`
`Interests-
`
`P.
`
`The Debtor may sell the -Assets free and clear of all Interests of any kind or nature
`
`b whatsoever because, in each case, one or more of the standards set forth in 11 U.S.C. §' 363(t)(1)—
`(5) has been satisfied. Those holders of Interests, including non—debtor parties to Assumed
`
`Contracts who did not object, or who withdrew their objections, to the Sale or to the Sale
`
`Motion, are deemed to_have consented pursuant to 1'1 U.S.C. §§ 363(f)(2) and 365. Those
`
`holders of Interests, including non-debtor parties to Assumed Contracts, who did timely object
`
`fall within one or more of the other subsections of ‘11 U.S.C. §§ 363(f) and 365, and are
`adequately protected by haying their Interests, if any, attach to the cash proceeds of the Sale
`
`ultimately attiibutable to theproperty against or in which they claim an Interest, which proceeds
`
`exceed the value of all such interests in the aggregate (see 11 U.S.C. §363(f)(3)).
`
`Q.
`
`Neither (i) the transfer of the Assets to Ultimate Buyer, nor (ii) the assumption
`
`and assignment to Ultimate Buyer-of the Assumed Contracts and Assumed Liabilities, will
`
`subject Ultimate Buyer to any liability whatsoever with respect to the operation of the Debtor’s
`
`business prior to the Closing Date or by reason of such transfer based, in whole or in part,
`
`directly or indirectly, on any theory of law or equity, including, without limitation, any theory of
`
`2194594
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`'10/01/2002 16207 FAX 3012571300
`SNELL & WILMER
`_ @005
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`equitable law, including, without limitation, any theory of antitrust or successor or transferee
`
`liability.
`
`R.
`
`The sale of the Assets to Ultimate Buyer is a prerequisite to the Debtor’s ability to
`
`confinn and consummate a plan of reorganization or atplan of liquidation. The Sale is a sale in
`
`contemplation of a plan and,» accordingly, is a transfer pursuant to 11 U.S.C. § 1146(c), which
`
`shall not be taxed under any law imposing a stamp tax, transfer or similar tax.
`
`S.
`
`As to the Assumed Contracts, (i) proper, timely, adequate and sufficient notice of
`
`the assumption and assignment of the Assumed Contracts has been provided in accordance with
`11 U.S.C. §§ 102(1) and 365,"Bankmptcy Rules 2002, 6004 and 9014, and the Procedures Order,
`
`(ii) such notice was good, sufficient and appropriate under the particular circumstances, and (iii)
`no other or further notice of the assumptionand assignment ofthe Assumed Contracts is or shall
`be required.
`H
`A
`T.
`The Debtorhas demonstrated (i) that its determination to assume and assign the
`Assumed Contracts to Ultimate Buyer in connection withthe consummation of the Sale is an
`
`exercise of its sound business judgment, and (ii) that the assumption and assignment of the
`Assumed Contractsis in the best interests ofthe Debtor, its estate andits creditors.
`U.
`The Assumed Contracts being assigned to, and the liabilities being assumed by,
`Ultimate Buyer are aneintegral part of the Assets being purchased by Ultimate Buyer and,
`
`accordingly,
`
`the assumption ‘and assignment of Assumed Contracts and liabilities (i)
`
`is
`
`reasonable, and (ii) enhances the value of the Debtor’s estate.
`
`V.
`
`Except as to those particular Assumed Contracts that are the subject of a timely
`
`filed objection (collectively, the “Contract Assumption Objections”) raising issues about the
`adequacy of the cure amounts necessary for the Debtor to assume and assign the particular
`
`Assumed Contract, regarding the propriety of the transfer of a particular Assumed Contract by
`
`assignment, or regarding the adequacy of future performance under a particular Assumed
`
`2194594
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`10/01/2002 16:08 FAX 8012571800
`SNELL & WILMER
`@009
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`(2.) the Debtor or Ultimate Buyer (i) has
`Contract (unrelated to Ultimate Buyer‘s financial ability):
`cured, or has provided adequate assurance of cure, of any default existing prior to the date hereof
`under any of the Assumed Contracts, Within the meaning of ll U.S.C. § 365(b)(1)(A), and (ii) has
`provided compensation or adequate assurance of compensation to any party for any actual
`
`pecuniary loss to such party resulting from a~default prior to the date hereof under any of the
`
`Assumed Contracts, with the meaning of 11 U.S.C. § 365(b)(1)(B); and (b) Ultimate Buyer has
`
`provided adequate assurance. of its_ ability to perform in the future under the Assumed Contracts,
`
`within the meaning of ll U.S.C. § 365(b)(l)(C). With respect to the particular Assumed Contracts
`
`that are the subject of a Contract Assumption Objection, the issues of cure amounts, transferability
`
`and adequate assurance of future performance (unrelated to Ultimate Buyer’s financial ability)
`
`have been reserved for determination at a future firne, as described below.
`W.
`Ultimate Buyer has adequately demonstrated its financial ability to consummate
`
`the Sale and pay cure amomitswand provide adequate assurance of future performance under the
`
`Assumed Contracts.
`
`X. y
`
`The relief granted herein is in the best interestsof the Debtor, its estate, creditors
`
`and other parties in interest.
`
`WHZERBFORE, it is hereby ‘
`
`ORDERED that:
`
`1.
`
`2.
`
`GENERAL PROVISIONS
`
`The Sal,ell\./Iotion is granted, as further described herein.
`
`All objections to the Sale Motion or to the relief requested therein that
`
`have not been withdrawn, waived, or settled, and all reservations of rights identified in such
`
`objections, are overruled on the merits (including objections raising issues exclusively about
`
`adequate assurance of future performance related to the Ultimate Buyer’s financial ability),
`
`2194594
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`_ 3
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`

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`.|.v/ v.I./ LUV‘
`J.U§UO FHA. UU1.lZ571.800
`8‘
`
`@010
`
`I
`
`except for the Contract Assumption Objections, consideration of which is deferred and shall be
`resolved as provided below.
`3.
`The Contract‘ Assumption Objections fall into two categories: (i) timely
`objections raising issues exclusively about the amount ofcure of a particular Assumed Contract
`(the “Cure Amount Objections”); and (ii) timely objections as to the propriety ofthe transfer or
`assignment of a pairticular Assumed Contract, including, but not limited to, objections asserting
`that the non-debtor party must consent to the assignment or transfer, or that th.e transfer or
`assignment is subject to prior approval of the non-debtor party (the
`“Non-Transferability
`Objections”)
`. Particular Assumed Contracts that are the subject of Cure Amount Objections
`shall be assumed
`assigned to theUltimate Buyer at Closing, without need for a further order
`of the Court; provided however, that the Ultimate Buyer shall pay, as soon as practicable, the
`amount of cure as: determined by the Court at a subsequent hearing, or as determined by the
`pa_I1;ies in an agreement resolving the particular Cure Amount Objection. Particular Assumed
`Contracts that are the subject of Non-Transferability Objections shall be assumed by the Debtor
`and assigned to
`Ultimate Buyer, provided however, that (a) if the Court, at a subsequent
`hearing, grants the applicable objections; before the objections are withdrawn by agreement, then
`the assignment arid the assumption of the Particular Assumed Contracts shall be denied,
`retroactive to September 30, 2002.
`
`.
`
`As used herein, the Cure Amount Objections apply to the contracts
`4.
`between the Debtoi and CIT Financial, HP Financial, and One Sandy Center, LLC. Further, as
`used herein, the Noin-Transferability Objections apply to "One Sandy Center, LLC. As indicated
`by the evidence introduced at the Approval Hearing, the
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`SNELL & WILMER
`011
`
`.
`i
`extent the Debtor,gthe Ultimate Buyer, and One Sandy Center, LLC execute an amended lease
`that memorialize their agreementin principle, no further order of this Court shall be necessary,
`i
`.
`.
`and the amended lease, as executed, is hereby deemed approved by this order. To the extent the
`
`parties are unablejto memorialize their agreement and execute an amended lease, this Court
`I
`.
`retains jurisdictiori to resolve any issues respecting the Cure Amount Objections or the Non-
`J
`Transferability Objections.
`
`5-
`;
`The Debtor and Ultimate Buyer also have reached an agreement
`in
`principle with Dojminion Venture Finance, LLC for the assumption and assignment of its
`executory contract: pursuant to 11 U.S.C. § 365, upon modified terms and conditions, to be
`memorialized in amended leases. To the extent Debtor, Ultimate Buyer and Dominion Venture
`Finance, LLC exeéute amended leases that memorialize this agreement, Debtor, Ultimate Buyer
`and Dominion ’Ve':ntu1'e Finance, LLC will submit a stipulation outlining the terms of said
`agreement, which gvfrill need to be approved by this Court to have full force and effect. The
`hearing on said stipulation may be held before this Court on five (5) business days notice to the
`parties identified oil the then current Official Service List in this Case.
`1
`6.
`'
`To the extent Debtor, Ultimate Buyer and Dominion Venture Finance,
`LLC are unable toj memorialize the agreement and execute amended leases, this Court retains
`jurisdiction to resiilve any and all other issues,
`including, but not limited to the rejection,
`assignment, assurrliption, Cure‘ Amount. Objections and the Non—Transferability Objections
`regarding the Dominion Venture Finance, LLC executory contracts.
`
`- Consensual resolutions of ‘Cure Amount Objections, of Non-Transferability
`7.
`Objections and of; Adequate Assurance Objections may be presented to the Court
`through
`stipulations executed by Ultimate Buyer andithe objector and,
`to the extent that any relief not
`I
`contemplated by the Purchase Agreement is requested with respect to the Debtor, by the Debtor.
`Such stipulations sliall be served via e-mail, facsimile, or overnight delivery upon the United States
`
`2194594
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`SNELL 8! WILMER
`V012
`
`Trustee, Examineriand counsel for any cornmittee(s) formed pursuant to 11 U.S.C. § 1102, who
`shall file objectionsf, if any, to such stipulations within three (3) business days afier such service.
`APPROVAL OF THE PURCHASE AGREEMENT
`The Purchase Agreement between the Debtor and the Ultimate Buyer, as
`I
`8.
`evidenced by the itmended Sale Motion, dated September 4, 2002, and the Second Amended
`Sale Motion, dated: September 26, 2.002, (hereinafier, the "Ultimate Purchase Agreement"), and
`all ofthe terms
`conditions thereof are approved.
`3
`9.
`Pursuant to; 11 U.S.C. § 363(b), the Debtor is authorized and directed to
`consummate the $ale pursuant to and in accordance with the terms and conditions of the
`Ultimate Purchase iAgreement.
`_
`10.
`The Debtor is authorized and directed to execute and deliver, and is
`empowered to perjforrnflunder, consummate and implement, the Ultimate Purchase Agreement,
`together with all zlidditional instruments and docrunents that may be reasonably necessary or
`desirable to implerrient the Ultimate Purchase Agreement, and to take all further actions as may be
`requested bythe Ultimate Buyer for the purpose of assigning, transferring, granting, conveying and
`conferring to the Uiltimate Buyer or reducingto possession, the Assets, or as may be necessary or
`appropriate to theiperformance of the obligations as contemplated by the Ultimate Purchase
`
`Agreement.
`
`TRANSFER or ASSETS
`Pursuant to 11 U.S.C. §§ 105(a) and 363(1), the Assets shall be transferred
`11.
`to the Ultimate Buyer and,» as of the Closing Date, shall be free and clear of all Interests of any
`kind or nature whatsoever, urith all such Interests of any kind or nature whatsoever attaching to
`the net proceeds of; the Sale in the order oftheir priority, with the same validity, force and effect
`which they now haive as against the Assets, subject to any claims and defenses the Debtor may
`possess with respedt thereto.
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`12.
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`. Except as expressly permitted or otherwise specifically provided by the
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`I
`Ultimate Purchase ‘Agreement or this Approval Order, all persons and entities (including, but not
`limited to, all equity security holders, governmental, tax and regulatory authorities, lenders, trade
`and other creditorsfi holding claims or Interests ofany kind or nature whatsoever in or against the
`Debtor or the Assets (whether legal or equitable, secured or unsecured, matured or unmatured,
`contingent or non—Econtingent-, senior or subordinated), arising under, out of, in connection with,
`or in any way relating to the Debtor or the Assets, the operation ofthe Debtor’s business prior to
`the Closing Date, hr the transfer of the Assets to the Ultimate Buyer, shall be and hereby are
`forever barred and gestopped from asserting against the Ultimate Buyer, its successors or assigns,
`its property, or the ‘Assets, such persons’ or entities’ claims or Interests.
`13.
`The transfer ofthe Assets to the Ultimate Buyer pursuant to the Ultimate
`Purchase Agreement constitutes a legal, valid and effective transfer of the Assets, and shall vest
`the Ultimate Buyei with all right, title and interest of the Debtor in and to the Assets free and
`clear of all Interesth of any kind
`nature whatsoever (other than the Assumed Liabilities), and
`the assertion of anyi suchelnterests inor against the Assets shall be and hereby is prohibited.
`
`14.
`
`‘ At Closing, the Ultimate Buyer shall pay the Purchase Price, as described
`i
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`.
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`and in manner provided under the Ultimate Purchase Agreement.
`
`At or before. the Closing, the Ultimate Buyer may designate one or more
`15.
`Designees to take title to the Assets. illeferences to the Ultimate Buyer in this Approval Order, in
`the Ultimate Purchhse Agreement, and the Procedures Order shall apply to such Designee(s);
`provided however, that any such designation, shall not release the Ultimate ‘Buyer Rom any of its
`duties or obligation% under theUltiniate Purchase Agreement or this Approval Order.
`ASSUMPTION AND ASSIGNMENT TO ULTIIVIATE BUYER OF ASSUMED
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`CONTRACTS
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`The Assumed Contracts assumed by tl1e Debtor and assigned to the Ultimate
`I
`16.
`Buyer at Closing, tiursuant to this Approval Order, shall consist of those Assumed Contracts listed
`in the Ultimate Purbhase Agreement, together with all Inventory and non-Inventory purchase orders
`for the benefit ofthfe Debtor, and’all ofthe Debtor’s insurance policies.
`17-
`Pursuant to ll U.S.C, §§ 105(a) and 365, and subject to and conditioned
`upon the further Eterms of this Approval Order and the Closing of the Sale,
`the Debtor’s
`assumption and asiignment to the_Ultimate Buyer, and the Ultimate Buyer’s assumptionon the
`terms set forth in the Ultimate Purchase Agreement, of all Assumed Contracts is approved, and
`the requirements of 11 U.S.C. § 365(b)(l) with respect thereto are deemed satisfied, except as
`provided in paragrziph 3 above.
`18.
`E
`Except as provided above, the Debtor is hereby authorized and directed, in
`accordance with 11! U.S.C. §§ 105(a) and 365, to (a) assume and assign to the Ultimate Buyer, or
`its Designee, effectjive upon me Closing of the Sale, all Assumed Contracts free and clear of all
`Interests of any Kidd or nature "whatsoever, and (b) execute and deliver to the Ultimate Buyer, or
`its Designee, suchidocuments or other instruments as may be necessary to assign and transfer
`such Assumed Conitracts to the:Ultim_'ate Buyer. The Debtor is further authorized and directed to
`deliver to the Ultinitate Buyer: allsinfoirrnation and records in the possession ofthe Debtor relating
`to such Assumed Qbntracts.
`A
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`19.
`E
`, Except as provided above, the Assumed Contracts shall be transferred to,
`and remain in full ibrce and effect for the benefit of, the Ultimate Buyer in accordance with their
`respective terms, nbtwithstanding any provision in any such Assumed Contract (including those
`of the type descfibed in sections i36i5Cbi)_(2)' and (t) of the Banlquptcy Code) that prohibits,
`restricts, or conditions such assignment or transfer, and, .pursuant to 11 U.S.C.
`'§‘ 365(k), the
`Debtor shall be relieved from any further liability with respect to such Assumed Contracts after
`their assignment to iand assumption by the Ultimate Buyer.
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`| All defaults or other obligations of the Debtor under the Assumed
`I 20.
`Contracts arising or accruing prior to the date of this Approval Order ‘(without giving effect to
`any acceleration clausesor any default provisions of the kind specified in section 365(b)(2) of
`the Bankruptcy Code) and all compensation» for damages with respect to the Assumed Contracts
`(the “Cure Claims”) shall be cured by the Ultimate Buyer at the Closing of the Sale, or as soon
`
`thereafter as practicable,‘ and the Ultimate Buyer shall have no liability or obligation arising or
`accruing prior to the date of the Closing of the Sale, except as otherwise expressly provided in
`the Purchase Agreement. The Ultimate Buyer’s obligation to pay Cure Claims shall be subject to
`any agreements between Ultimate Buyer and the non—debtor parties to such Assumed Contracts
`that permit the compromise of such Cure Claims for agreed payments, which agreementspmay be
`the subject of stipulations presented to the Court.
`Such stipulations shall be executed by
`Ultimate Buyer, the cure claimant, and, to the extent any relief is requested with respect to the
`
`Debtor, by the Debtor, subject to the sameservice requirements and objection provisions for
`such stipulations as are set forth above.
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`21.
`_
`Each non—debtor.pa1ty to an Assumed Contract is hereby forever barred
`
`and estopped fiom asserting against the Debtor, the Ultimate Buyer, or the property of either of
`them, any default existing‘
`of the date of the Approval Hearing or, as against the Ultimate
`Buyer, any counterclaim, defense, setoff or any other claim asserted orassertable against the
`Debtor with respect to the As_sumed‘Contract. Subsequent to the Closing, no Cure Claims or any
`
`other claims may be asserted against the Debtor with respect to the Assumed Contracts.
`
`22.
`The failure of the Debtor or the’ Ultimate Buyer to enforce, at any time, one
`or more terms or conditions of any Assumed Contract shall not be a waiver of such terms or
`
`conditions, or of the Debtor’s and the Ultimate Buyer’s rights to enforce every term and condition
`
`of the Assumed Contracts.
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`23.
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`Upon request by the Ultimate Buyer or the Debtor,
`
`the Court shall
`
`consider the entry of agreed orders related to the asstunption and assignment of particular leases
`
`and executory contracts subject to" the same service requirements and objection provisions set
`
`forth in paragraph 3 above.
`24.
`‘
`A
`Any
`
`Amount Objections with respect
`
`to a particular Assumed
`
`Contract shall be resolved as follows:
`
`The Assumed Contract shall be assumed and assigned to Ultimate Buyer
`(a)
`immediately upontheClosing;
`0
`Cb)‘ Within tln'.rty:(30)
`afcerithe Closing, Ultimate Buyer and the non-
`debtor party to each such Assumed Contract shall «attempt to negotiate a resolution of the dispute
`
`(the “Negotiation Phase”);
`
`(0)
`
`If the parties are unable to resolve their dispute during the Negotiation
`
`Phase, either party may request the Court to set the objection for hearing before the Court on no
`less than fourteen (14) days notice.
`V
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`(cl)
`
`If the Cure Amount
`
`is not resolved in a manner satisfactory to the
`
`Ultimate Bu