No. BK-S-00-10534-LBR, No. BK-S-00-10535-LBR, No. BK-S-00-10536-LBR, No. BK-S-00-10537-LBRUnited States Bankruptcy Court, D. Nevada
July 31, 2000
Attorneys for Debtors in Possession, WILLIAM P. WEINTRAUE, ESQ., DAVID M. BERTENTHAL, ESQ., MALHAR S. PAGAY, ESQ., PACHULSKI, STANG, ZIEHL, YOUNG JONES P.C., San Francisco, CA
JAMES PATRICK SHEA, ESQ., CANDACE CARLYON, ESQ., SHEA CARLYON, LTD., Las Vegas, NV
JEANETTE E. McPHERSON, Esq., MANGELS BUTLER MARMARO O’REILLY LLC, Las Vegas NV, Local Counsel for Unsecured Creditors’ Committee
RICHARD F. HOLLEY, JAMES DRIGGS, WALCH, SANTORO, KEARNEY, JOHNSON
THOMPSON, Las Vegas, NV
ORDER AUTHORIZING DEBTORS TO SELL ASSETS FREE AND CLEAR OF LIENS, CLAIMS INTERESTS AND ENCUMBRANCES PURSUANT TO SECTION 363(f) OF THE BANKRUPTCY CODE [“19TH STREET PROPERTY” AND “19TH STREET EQUIPMENT” FOREST GROVE, OREGON]
LINDA B. RIEGLE, United States Bankruptcy Judge
Pursuant to the Court’s oral order shortening time issued at a telephonic hearing held on June 8, 2000, the motion of AgriBioTech, Inc., a Nevada corporation (“ABT”), Las Vegas Fertilizer Co., Inc., a Nevada corporation (“LVF”), Garden West Distributors, Inc., a Arizona corporation (“Garden West”) and Geo. W. Hill Co., Inc., a Kentucky corporation (“Hill”), the debtors and debtors in possession herein (collectively the “Debtors”) for an order authorizing the Debtors to sell certain assets free and clear of all liens, claims or encumbrances pursuant to Bankruptcy Code section 363(f) (the “Motion”)[1] came before the Court for hearing on June 28, 2000. David M. Bertenthal, Esq. appeared on behalf of the Debtors. Other appearances were as noted in the record.
Based on the arguments made in the Motion and the Supplement, the pleadings and documents on file in this case, and the arguments made by counsel at the hearing, the Court finds that: (a) the Debtors have provided parties in interest with appropriate notice of the proposed transaction, including the request to sell the subject property free and clear of liens, the deadline for filing objections, and an opportunity for a hearing; (b) BankAmerica Business Credit, Inc. and its participant lenders (the “Bank Group”) has consented to the sale of the subject property free and clear of its lien; (c) adequate grounds exist under 11 U.S.C. § 363(f) to sell free and clear of other liens and encumbrances affecting the subject property; and (d) no objections to the Motion having been filed and served within the time period set by this Court or all such objections having been resolved; and for other good cause appearing,
IT IS THEREFORE ORDERED ADJUDGED AND DECREED AS FOLLOWS:
1. Except as modified herein, the Motion (as supplemented by the Supplement) is approved.
2. The form of Agreement for Purchase and Sale of Real Property [Master Template] and Escrow Instruction (the “Purchase Agreement”) which was attached to the Supplement as Exhibit 1 is approved. The final execution version of the Purchase Agreement will be subject to modification to reflect the terms of the particular transaction, described below.
3. The Debtors are authorized to sell the following:
(a) The real property located at 1936, 2016 and 2024 19th Street and 1828 Main Street and 1824 Ash Street and more particularly described onExhibit 3 to the Supplement (the “19th Street Property”);[2] and
(b) The tangible personal property, equipment and vehicles located on or at the 19th Street Property that are listed on Exhibit P to the Motion as supplemented by Exhibit 9 to the Supplement (the “19th Street Equipment”).[3] (The 19th Street Property and the 19th Street Equipment are collectively the “Assets”).
4. The Debtors are authorized to sell the Assets to overbidder Woodfold-Marco Mfg, Inc., an Oregon corporation (the “Buyer”) for a price of $775,000.00 (the “Cash Consideration”) to be paid in cash at closing and on the terms and conditions that are further described in the Motion, the Supplement, and the Purchase Agreement (the “Sale Transaction”).[4]
5. If Buyer fails to execute a final Purchase Agreement for the Assets within 10 calendar days of the entry of this Order, the Debtors are authorized, in their sole discretion, to terminate the Sale Transaction with Buyer and to proceed to sell the Assets to the next highest qualified overbidder at the June 28 sale hearing (“Alternative Buyer”).
6. The Debtors’ sale of the Assets to Buyer (or Alternative Buyer, as appropriate), is approved pursuant to 11 U.S.C. § 363(b) and 363(f) free and clear of all liens, encumbrances, interests and claims, including without limitation, any and all liens for ad valorem real property taxes and/or assessments and the equitable lien asserted by Doug Pope and Greg McCarthy, with any such liens to attach to the proceeds of the sale of the Assets (to the extent not paid at closing) with the same priority, scope, extent, validity or invalidity as existed immediately prior to the sale.
7. Pursuant to Bankruptcy Code section 365(b), Debtor’s rejection of the Debtor’s rights, title and interests under those certain leases with Lawrence Warehouse Company (the “Leases”) (attached to the Motion asExhibit Q) is authorized and approved. Nothing herein shall impair the rights of any party in interest to assert that the Leases expired prior to rejection.
8. The Debtors are authorized to take all actions reasonably necessary to consummate the Sale Transaction.
9. The Debtors are authorized to pay from the proceeds of the Sale Transaction all costs incident to the transaction, including, but not limited to, the Debtors’ share of escrow and title fees and costs.
10. The Debtors are authorized to pay real property taxes and/or assessments on the Assets out of the proceeds of the Sale.
11. The Debtors are authorized and directed to disburse the net proceeds of the Sale Transaction (the “Net Sale Proceeds”) as follows:[5]
(a) The Debtors are authorized to pay any secured claims on the Assets which are senior in priority to the secured claims of the Bank Group which the Debtors do not dispute and the Bank Group and the Official Committee of Unsecured Creditors (the “Committee”) have provided Debtors written confirmation that they also do not dispute such secured claim (the “Undisputed Senior Claims”), so long as the remaining Net Sale Proceeds paid over to the Bank Group pursuant to subparagraph (b) below are sufficient to pay unpaid secured claims on the Assets which are senior to any Undisputed Senior Claims;
(b) After payment of any Undisputed Senior Claims as provided in subparagraph (a) above, any remaining Net Sale Proceeds shall be paid to the Bank Group in accordance with the DIP Order, subject to the obligation of the Bank Group to pay senior lienholders out of the Net Sale Proceeds paid to the Bank Group.
(c) The Bank Group shall immediately pay the unpaid secured claim amount of any senior lienholder the lesser of: (a) the amount of the holder’s superior claim; or (b) the amount of the cash collateral or proceeds received by the Bank Group subject to such senior claim, lien or security interest upon (i) the written agreement between the Debtors, the Committee and the Bank Group to such payment or (ii) entry of a final order of the Bankruptcy Court directing that such payment be made.
12. William Brandt of Development Specialists, Inc. (“DSI”), who has been appointed by the Court as the Debtor’s Responsible Natural Person pursuant to Federal Rule Bankruptcy Procedure 9001(5) and his authorized representative Bradley Sharp of DSI have authority to take such actions and execute such documents as are reasonably required to transfer the Debtors’ estates and interests in the Assets to the Buyer.
13. Upon the closing of the Sale Transaction contemplated by this Order, the Buyer will be a party that has purchased the Assets in good faith and shall be entitled to the protections afforded by 11 U.S.C. § 363(m).
[EDITORS’ NOTE: REVISED EXHIBIT A IS ELECTRONICALLY NON-TRANSFERRABLE.] EXHIBIT B EQUIPMENT LIST
Item Quantity
1979 COMET TRAILER #A5792607 1 1979 COMET TRAILER #S57925058 1 1988 International #2HSFEADROJCO16243 1 1997 INTERNATIONAL 4700 #1HTSCABM4vh480657 1 BROTHER FAX MACHINE 1 DUST CONTROL SYSTEM 1 ECPRESS SCALES 1 FISHBIEN SEWING MACHINE 1 FISHBIEN SEWING MACHINE 1 FLEXWEIGH SCALES 1 FLEXWEIGH SCALES 1 GUSTAFSON TREATER 1 HYSTER LIFT TRUCK 1 HYSTER LIFT TRUCK 1 HYSTER LIFT TRUCK 1 MARION MIXER 1 MIMA SHRINKWRAP MACHINE 1 PANASONIC TYPEWRITER 1 PRATER MIXER 1 QUINCY AIR COMPRESSOR 1 TRAILER # 8L04510002 1 TRAILER #7L70589001 1 TRAILER #7L7059003 1 UNIVERSAL ELEVATOR 1 VIBRATORY PIT 1 XEROX COPY MACHINE 1