Case No. 02-00979-KL3-11, Jointly AdministeredUnited States Bankruptcy Court, M.D. Tennessee, Nashville Division
November 26, 2002
Harwell, Howard, Hyne, Gabbert Manner, Craig V. Gabbert, Jr., Nashville, Tennessee, and Buchanan Ingersoll Professional Corporation, Joel M. Walker, Philip J. Uher, Sameul W. Braver, Pittsburgh, PA, for Debtors
ORDER APPROVING (I) SALE OF RIVER DIVISION ASSETS FREE AND CLEAR OF LIENS, CLAIMS AND ENCUMBRANCES AND (II) ASSUMPTION AND ASSIGNMENT OF DESIGNATED CONTRACTS
KEITH M. LUNDIN, United States Bankruptcy Judge
Upon consideration of the Motion of Pen Coal Corporation (“Pen Coal”) and River Marine Terminals, line. (“River Marine” and collectively, the “Debtors”) for an Order Approving (i) Sale of River Division Assets Free and Clear of Liens, Claims and Encumbrances and (ii) Assumption and Assignment of Designated Contracts (the “Motion”) and after proper notice and hearing before this Court, the Court makes the following findings:
1. All capitalized terms not otherwise defined herein are as defined in that Motion.
2. The Court finds that Argus Energy, LLC or its assignee (the “Purchaser”) has acted in good faith in connection with the negotiation and purchase of the Acquired Assets within the meaning of and in accordance with 11 U.S.C. § 363(m) and that the purchase price for the Acquired Assets constitutes reasonable equivalent value and fair consideration.
NOW THEREFORE, it is hereby ordered as follows:
ORDERED that the Debtors are authorized to sell the Acquired Assets to the Purchaser for a purchase price in the total amount of $11,000,000 (the “Purchase Price”) in accordance with the terms of the Motion and the Asset Purchase Agreement; and it is further
ORDERED that in addition to the Purchase Price, the Purchaser will pay to the Debtors the sum, via wire transfer of immediately available United States funds, equal to the product of the total number of tons of coal inventory on hand on the Closing Date (as agreed by Purchaser and Debtors based on the physical inventory conducted on the day prior to the Closing Date) at the following locations and the price per ton corresponding for such location: Kiah Creek Processing Plant — $22.70; Bear Branch Processing Plant — $24.35; and Wayne County Terminal — $26.50; and it is further
ORDERED that all of the terms, conditions and provisions of, and all transactions contemplated in the Motion and the Asset Purchase Agreement are approved in all Respects; and it is further
ORDERED that the Debtors are authorized to further negotiate, execute, deliver and perform any agreements and transactions necessary to sell the Acquired Assets; and t is further
ORDERED that the sale of the Acquired Assets is free and clear of all claims, liens, encumbrances, security interests, rights of ownership, possession or use by or of an) party other than the Purchaser pursuant to Section 363(f) of the Bankruptcy Code and all such claims, liens, encumbrances, security interests, rights of ownership, possession or use by or of and party other than the Purchaser shall be transferred to the proceeds of the sale with the validity, extent and priority as the same existed in the Acquired Assets immediately prior to the dosing of the sale; and it is further
ORDERED that the transfer of the Acquired Assets pursuant to the sale is or will be a legal, valid and effective transfer thereof and that such transfer vests or will vest the Purchaser with good title to the Acquired Assets free and clear of all claims, liens, encumbrances, rights of ownership, possession or use by or of any party other than the Purchaser; and it is futher
ORDERED that the Debtors are authorized to pay miscellaneous costs of closing and transfer of the Acquired Assets from the proceeds of the sale; and it is further
ORDERED that this Order shall be, and hereby is, deemed binding upon the Debtors and their estates, creditors and shareholders, the Purchaser, and any other affected third parties, including, but not limited to, parties asserting a claim against or interest in the Debtors’ estates or any of the Acquired Assets, and the respective successor and assigns of any of the foregoing, including but not limited to, any trustee appointed in the Chapter 11 case or any superseding Chapter 7 cases; and it is further
ORDERED that the objection to cure costs filed by Elahs Gas Company Inc. is hereby OVERRULED; and it is further
ORDERED that the Debtors’ (a) assumption of the Designated Contracts and (b) assignment of the Designated Contracts, pursuant to the terms of the Asset Purchase Agreement, to the Purchaser is hereby APPROVED; and it is further
ORDERED that the Debtors are is to pay all cure costs associated with the Designated Contracts; and it is further