Case No. 04-13819-SSM Jointly Administered.United States Bankruptcy Court, E.D. Virginia, Alexandria Division.
July 21, 2005.
Brian P. Leitch, Esq., Daniel M. Lewis, Esq., Michael J. Canning, Esq., ARNOLD Porter LLP, Denver, CO and Washington, DC and New York, NY, Lawrence E. Rifken (VSB No. 29037), Douglas M. Foley (VSB No. 34364), McGUIREWOODS LLP, McLean, Virginia, Attorneys for Debtors and Debtors-in-Possession.
ORDER AUTHORIZING THE DEBTORS TO ENTER INTO AN AGREEMENT TO SELL TEN (10) BOEING 737 AIRCRAFT AND THREE SPARE ENGINES PURSUANT TO 11 U.S.C. § 363 AND RULE 6004 OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE
STEPHEN MITCHELL, Bankruptcy Judge
Upon the motion, dated June 15, 2005 (the “Motion”),[2]
of the Debtors and debtors-in-Possession for an order authorizing the Debtors to enter into an agreement with Jet Partners, LLC (“Jet Partners”) for the sale of ten (10) aircraft and three spare engines pursuant to Section 363 of Title 11 of the United States Code, 11 U.S.C. §§ 101, et seq. (the “Bankruptcy Code”) and Rule 6004 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”) in
Page 2
substantial conformity with the terms of that certain Aircraft and Spare Engine Purchase Agreement between US Airways, Inc. and Jet Partners, dated June 13, 2005, a copy of which is attached to the Motion as Exhibit B (the “Purchase Agreement”); the Court hereby finds that:
A. Granting the relief requested in the Motion as modified at the hearing is in the best interests of the Debtors, their estates, creditors and other parties in interest and is a proper exercise of the Debtors’ business judgment;
B. Proper and adequate notice of the Motion has been given and no other or further notice is necessary;
C. The Court having conducted an open bidding process on the sale of the Aircraft and Spare Engines pursuant to the Purchase Agreement, with Jet Partners determined to be the winning bidder;
D. The lenders under the ATSB Loan and the Creditors’ Committee have consented to the sale of the Aircraft and Spare Engines to Jet Partners free and clear of the liens granted under the ATSB Loan; and
E. All objections to the Motion have been withdrawn or, to the extent not withdrawn, are hereby overruled.
Accordingly, upon the record in these cases; and after due deliberation thereon; and good and sufficient cause appearing therefor, it is hereby ORDERED, ADJUDGED AND DECREED THAT:
1. The Motion is GRANTED in its entirety.
2. Pursuant to Section 363 of the Bankruptcy Code, the Debtors are authorized to execute all documents necessary to enter into the Purchase Agreement as modified at the hearing on the record, including to reflect a Purchase Price of $52 million, a Deposit of $5.2 million, and a waiver by the Buyer of all inspection rights other than the Final Ground Inspection, the Final Records Inspection, and the Full Power Assurance Run, each as specifically provided for in the Purchase Agreement, and sell the Aircraft and the Spare
Page 3
Engines to Jet Partners on terms substantially similar to those set forth in the Purchase Agreement as so modified.
3. Pursuant to Section 363(f) of the Bankruptcy Code, the sale of the Aircraft and Spare Engines to Jet Partners shall be free and clear of all liens, claims and encumbrances, including the liens held by the lenders under the ATSB Loan and any taxing authorities, with the proceeds generated from such sales to be applied in accordance with the terms and conditions of the Supplemental Cash Collateral Order, as the same may be amended, modified, supplemented or extended, or as otherwise agreed to among the Debtors and the lenders under the ATSB Loan.
4. Jet Partners is a purchaser in good faith pursuant to Section 363(m) of the Bankruptcy Code, and the reversal or modification on appeal of this Order shall not affect the validity of the sale of the Aircraft and Spare Engines to Jet Partners.
5. This order shall be effective immediately upon entry and the ten day stay of orders authorizing the sale of property of the estate pursuant to Bankruptcy Rule 6004(g) shall not apply to this Order.
6. The Court retains jurisdiction to hear and determine all matters arising from or related to the implementation of this Order.
Page 1