No. 02 B 08699, Jointly AdministeredUnited States Bankruptcy Court, N.D. Illinois, Eastern Division
February 18, 2003
ORDER AUTHORIZING SALE OF MEMBERSHIP INTEREST IN NATIONAL ROBINSON, L.L.C. FREE AND CLEAR OF LIENS, CLAIMS AND ENCUMBRANCES AND GRANTING RELATED RELIEF
JOHN H. SQUIRES, United States Bankruptcy Judge
This matter coming to be heard on Debtors’ Motion For Authority to Sell Membership Interest in National Robinson, L.L.C. Free and Clear of Liens, Claims and Encumbrances and for Related Relief (the “Sale Motion”); a hearing having been held on the Sale Motion on February 18, 2003 (the “Sale Hearing”); the Court having heard the statements of counsel for National Steel Corporation (the “Debtor”), Robinson Steel Co., Inc. (“Purchaser”) and such other parties wishing to be heard at the Sale Hearing and considered the testimony and/or other evidence offered in support of the Sale Motion; and after due deliberation and sufficient cause appearing therefor;
THE COURT HEREBY FINDS AND CONCLUDES that:
1. This Court has jurisdiction over these cases pursuant to 28 U.S.C. § 1334 and this matter constitutes a core proceeding under 28 U.S.C. § 157(b)(2)(A) and (N).
2. The Debtor has served notice of the Sale Motion and the Sale Hearing on the Office of the United States Trustee, all official committees appointed in these cases, all creditors asserting liens or other interests in property of the estate that could he construed to constitute a lien on the Membership Interest (as defined below), including, without limitation, the lenders pursuant to the Final Order (I) Authorizing Debtors in Possession to Enter into Post Petition Credit Agreement and Obtain Post Petition Financing Pursuant to Sections 363 and 364 of the Bankruptcy Code, (II) Granting Liens, Security Interests and Superpriority Claims and (III) Providing for the Payment of Secured pre-petition Indebtedness (the “DIP Lender”), and all other parties requesting notices in these cases. The Court finds and concludes that such notice is adequate and sufficient under Sections 102 and 363, Federal Rule of Bankruptcy Procedure 2002(i) and (m) and the Order Pursuant to 11 U.S.C. § 102 and 105(a). Bankruptcy Rules 2002(m) and 9007 and Local Rides 101, 400 and 402 Establishing Omnibus Hearing Dates and Certain Notice, Case Management and Administrative Procedures. No other or further notice of the Sale Motion, the Sale Hearing or entry of this Order is necessary.
3. All requirements of Section 363(b) and (f) and any other applicable law relating to the sale of the Debtor’s membership interest in National Robinson, L.L.C. (the “Membership Interest”) to Purchaser as contemplated by that certain Purchase Agreement attached to the Sale Motion (the “Purchase Agreement”) have been satisfied.[1]
4. The sale of the Membership Interest to Purchaser on the terms set forth in the Purchase Agreement is reasonable. The purchase price is fair and reasonable and the sale of the Membership Interest at this time is in the best interest of the estate and creditors. Without limiting the foregoing, the purchase price to be paid by the Purchaser constitutes full and adequate consideration and reasonably equivalent value for the Membership Interest.
5. It is uncontroverted that the Debtor owns sole, unconditional, good and full title to the Membership Interest and that no consents or approvals, other than the approval of this Court, are required for the Debtor to consummate the transactions contemplated by the Purchase Agreement.
6. The Purchase Agreement was negotiated and entered into in good faith, from arm’s length bargaining positions, by the parties. Purchaser is a good faith purchaser for all purposes pursuant to Section 363(m). Neither the Purchaser nor the Debtor engaged in any conduct that would cause or permit the Purchase Agreement to be avoided pursuant to Section 363(n). Purchaser is not an insider of Debtors as defined in Section 101(31).
ACCORDINGLY, IT IS THEREFORE ORDERED AND ADJUDGED THAT:
A. The Sale Motion is granted and the terms of the sale of the Membership Interest as set forth in the Motion and the Purchase Agreement are hereby approved. Any and all objections to the Sale Motion have either been resolved or are hereby overruled. The Debtor is hereby authorized to execute such documents as are necessary to consummate the sale of the Membership Interest, including without limitation the Purchase Agreement and related Transaction Agreements.
B. Pursuant to Section 363(f), the sale of the Membership Interest to Purchaser shall be free and clear of any and all liens, claims, interests and encumbrances, including, without limitation, the liens, if any, of the DIP Lenders or any other secured creditors and any right or Option to effect any transfer, assignment, license, forfeiture, modification, rights of first refusal or termination of the Debtor’s interest in the Membership Interest (collectively, the “Encumbrances”) with any and all such Encumbrances to attach to the proceeds of the sale of the Membership interest in the order of their priority with the same validity, force and effect which they now have as against the Membership Interest.
C. Effective upon the closing, the Supply Agreement and the Support Services Agreement shall be terminated and of no further force or effect. Additionally, effective upon the closing, the License Agreement and the LLC Agreement shall be terminated with respect to the Debtor, and any and all rights of the Debtor as third party beneficiaries in the Operations Agreement, if any, shall be terminated.
D. The Debtor, through any corporate officer, is authorized to fully perform under, consummate and implement the Purchase Agreement, together with all additional instruments and documents that may be reasonably necessary or desirable to implement the Purchase Agreement, and to take all further actions as may reasonably be requested by Purchaser for the purpose of assigning, transferring, granting, conveying and conferring to Purchaser, or reducing to possession, any or all of the Membership Interest, or as may be otherwise necessary or appropriate to the performance of the obligations as contemplated by the Purchase Agreement.
E. Nothing contained in any Chapter 11 plan confirmed in these cases or the order confirming any such plan shall conflict with or derogate from the provisions of the Purchase Agreement, the Transaction Agreements or the terms of this Order.
F. The terms and provisions of the Purchase Agreement, together with the terms and provisions of this Order shall be binding in all respects upon, and shall inure to the benefits of the Debtor, its estate, creditors and shareholders. Purchaser, and its respective successors and assigns, and any affected third parties including but not limited to all non-Debtor parties persons asserting a claim against or interest in the Debtor’s estate or the Membership Interest to be sold to Purchaser pursuant to the Purchase Agreement.
G. Purchaser, having been found to be a purchaser in good faith, is entitled to the protections of Section 363(m). Any reversal or modification on appeal of this Order and the authorization to consummate the transactions provided herein shall not affect the validity of any transfer under the Purchase Agreement and this Order to Buyer unless such transfer is duly stayed pending such appeal.
H. The failure to include any particular provisions of the Purchase Agreement in this Order shall not diminish or impair the efficacy of such provision, it being the intent of the Court that the Purchase Agreement be authorized and approved in its entirety.
I. The sale of the Membership Interest pursuant to the Purchase Agreement and related Transaction Agreements, and any transfer or assignment relating thereto, shall be exempt from any transfer or other similar tax pursuant to Section 1146(c).
J. To the extent required, the automatic stay of Section 362 is modified to allow the parties to reduce the amounts owed to the Debtor under the Supply Agreement by the amount owed by the Debtor to Purchaser, including any amounts due from the Debtor under the Supply Agreement or the Operation, Maintenance and Services Agreement.
K. Effective upon the closing, all creditors and other parties are authorized and directed to execute and deliver to Purchaser such documents or instruments as may be reasonably required by the Debtor or Purchaser (without material cost or expense to such creditors) for the purposes of canceling or discharging any Encumbrance, if any, on the Membership Interest. All applicable governmental entities are directed to recognize the transfer of the Membership Interest free and clear to the Purchaser in the public records and to accept and record filings reflecting the same.
L. The Court retains jurisdiction (i) to enforce and implement the terms and provisions of the Purchase Agreement, Transaction Agreements, any amendments thereto and any and all the agreements executed in connection therewith, (ii) to prevent any party from pursuing Purchaser or its affiliates for liabilities or obligation related to the Debtor (which Purchaser and its affiliates may also enforce in any other court of competent jurisdiction) and (iii) to interpret, implement and enforce the provisions of this Order.
M. This order is effective immediately upon entry in accordance with Bankruptcy Rule 6004(g) and the Court hereby waives the 10 day stay set forth in Bankruptcy Rules 6004(g) and 6006(d).