Case 18-12378-KG Doc 227 Filed 11/15/18 Page 1 of 2 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: Chapter 11 WELDED CONSTRUCTION, L.P., et al., 1 Case No. 18-12378 (KG (Jointly Administered Debtors. Ref. Docket No. 129 NOTICE OF REVISED PROPOSED MISCELLANEOUS ASSET SALES PROCEDURES ORDER PLEASE TAKE NOTICE that, on October 30, 2018, the above-captioned debtors and debtors in possession (collectively, the Debtors filed the Debtors Motion for an Order Establishing Procedures for Sales of Certain Miscellaneous Assets Outside the Ordinary Course of Business Free and Clear of All Liens, Claims, Interests and Encumbrances Pursuant to Section 363 of the Bankruptcy Code [Docket No. 129] (the Miscellaneous Asset Sales Procedures Motion, 2 seeking entry of an order (the Proposed Order, attached as Exhibit A to the Miscellaneous Asset Sales Procedures Motion establishing procedures for the sale of certain of the Debtors Miscellaneous Assets outside the ordinary course of business, free and clear of all liens, claims, interests, and encumbrances. PLEASE TAKE FURTHER NOTICE that since the filing of the Miscellaneous Asset Sales Procedures Motion, the Debtors have modified the Proposed Order, among other things, to address certain formal and informal responses received in connection with the 1 01:23866755.1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor s federal tax identification number, are: Welded Construction, L.P. (5008 and Welded Construction Michigan, LLC (9830. The mailing address for each of the Debtors is 26933 Eckel Road, Perrysburg, OH 43551. 2 Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Miscellaneous Asset Sales Procedures Motion.
Case 18-12378-KG Doc 227 Filed 11/15/18 Page 2 of 2 Miscellaneous Asset Sales Procedures Motion (the Revised Proposed Order. Attached hereto as Exhibit I is a copy of the Revised Proposed Order marked against the Proposed Order. PLEASE TAKE FURTHER NOTICE that the Debtors intend to seek entry of the Revised Proposed Order at the hearing currently scheduled for November 19, 2018 at 11:00 a.m. (ET (the Hearing. The Debtors reserve all rights to modify the Revised Proposed Order at or prior to the Hearing. Dated: November 15, 2018 Wilmington, Delaware YOUNG CONAWAY STARGATT & TAYLOR, LLP /s/ Betsy L. Feldman M. Blake Cleary (No. 3614 Sean M. Beach (No. 4070 Justin H. Rucki (No. 5304 Betsy L. Feldman (No. 6410 Rodney Square 1000 North King Street Wilmington, DE 19801 Telephone: (302 571-6600 Facsimile: (302 571-1253 Proposed Counsel to the Debtors 01:23866755.1 2
Case 18-12378-KG Doc 227-1 Filed 11/15/18 Page 1 of 12 EXHIBIT I Blackline 01:23866755.1
Case 18-12378-KG Doc 227-1 Filed 11/15/18 Page 2 of 12 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: Chapter 11 In re: Chapter 11 WELDED CONSTRUCTION, L.P., et al., 1 Case No. 18-12378 (KG Debtors. (Jointly Administered Ref. Doc.Docket No. 129 ORDER ESTABLISHING PROCEDURES FOR SALES OF CERTAIN MISCELLANEOUS ASSETS OUTSIDE THE ORDINARY COURSE OF BUSINESS FREE AND CLEAR OF ALL LIENS, CLAIMS, INTERESTS AND ENCUMBRANCES PURSUANT TO SECTION 363 OF THE BANKRUPTCY CODE Upon consideration of the motion [Docket No. 129] (the Motion 2 of the above-captioned debtors and debtors in possession (collectively, the Debtors for entry of an order (this Order, pursuant to sections 105 and 363 of the Bankruptcy Code, establishing procedures for the sale of the Miscellaneous Assets outside the ordinary course of business, free and clear of all liens, claims, interests, and encumbrances; and upon consideration of the record of these chapter 11 cases; and it appearing that this Court has jurisdiction to consider the Motion in accordance with 28 U.S.C. 157 and 1334 and the Amended Standing Order; and it appearing that the Motion is a core matter pursuant to 28 U.S.C. 157(b(2 and that this Court may enter a final order consistent with Article III of the United States Constitution; and it appearing that venue of these chapter 11 cases and of the Motion is proper pursuant to 28 U.S.C. 1408 and 1409; and it appearing that due and adequate notice of the Motion has been given 1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor s federal tax identification number, are: Welded Construction, L.P. (5008 and Welded Construction Michigan, LLC (9830. The mailing address for each of the Debtors is 26933 Eckel Road, Perrysburg, OH 43551. 2 Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Motion.
Case 18-12378-KG Doc 227-1 Filed 11/15/18 Page 3 of 12 under the circumstances and that no other or further notice need be given; and it appearing that the relief requested in the Motion is in the best interests of the Debtors estates, their creditors, and other parties in interest and an appropriate exercise of the Debtors business judgment; and after due deliberation, and good and sufficient cause appearing therefor, it is hereby ORDERED, ADJUDGED and DECREED THAT: 1. The Motion is GRANTED as set forth herein. 2. The Debtors are authorized to sell the Miscellaneous Assets (each, a Proposed Miscellaneous Asset Sale in accordance with the following procedures (the Miscellaneous Asset Sale Procedures and the terms of this Order: a If the sale consideration from a purchaser of the Miscellaneous Assets does not exceed $300,000, on a per-transaction basis, and if the sale is not to an insider (as defined in section 101(31 of the Bankruptcy Code, the Debtors may sell the assets upon providing written notice, via electronic mail or facsimileovernight delivery, to (i the Office of the United States Trustee for the District of Delaware, 844 King Street, Room 2207, Lockbox 35, Wilmington, Delaware 19801, Attn: Jane M. Leamy, Esq. (Jane.M.Leamy@usdoj.gov and Jaclyn Weissgerber, Esq. (Jaclyn.Weissgerber@usdoj.gov, (ii counsel to the DIP Lender, (iii counsel to any official committeea Gibson, Dunn & Crutcher LLP, 200 Park Avenue, New York, NY 10166, Attn: Michael A. Rosenthal, Esq. (MRosenthal@gibsondunn.com and Matthew K. Kelsey, Esq. (MKelsey@gibsondunn.com, and 333 South Grand Avenue, Los Angeles, CA 90071, Attn: Daniel B. Denny, Esq. (ddenny@gibsondunn.com, and (b Ashby & Geddes, P.A., 500 Delaware Avenue, 8 th Floor, Wilmington, DE 19801, William P. Bowden, Esq. (wbowden@ashbygeddes.com and Karen B. Skomorucha Owens, Esq. (kowens@ashbygeddes.com, (iii counsel to the Official Committee of Unsecured Creditors appointed in these chapter 11 cases, and (iv (the Committee, Blank Rome LLP, One Logan Square, 130 N. 18 th Street, Philadelphia, PA 19103, Attn: Michael B. Schaedle, Esq. (Schaedle@BlankRome.com and John E. Lucian, Esq. (Lucian@BlankRome.com, (iv counsel to Chubb, Manier & Herod, P.C., 1201 Demonbreun Street, Suite 900, Nashville, TN 37203, Attn: Michael E. Collins, Esq. (mcollins@manierherod.com, and (v all known parties holding or asserting liens, claims, encumbrances or other interests in the assets being sold and their respective counsel, if known (collectively, the Notice Parties, which shall have three (3 business days (unless extended by agreement from the Debtors from the receipt of such notice to inform the Debtors in writing that they object to the proposed sale described in this subparagraph; provided, however, that to the extent the aggregate sale consideration for any series of related transactions to a single buyer or group of related buyers, which, on a per-transaction basis, do not exceed $300,000, exceeds $1,000,000, the procedures in 2
Case 18-12378-KG Doc 227-1 Filed 11/15/18 Page 4 of 12 subparagraph (b below shall apply. Such notice will (x include a description of the Miscellaneous Assets that are the subject and the economic terms of such proposed sale, (y state whether the Miscellaneous Assets that are the subject of such proposed sale are subject to an Equipment Provider Contract (as defined below, and (z identify the Debtors proposed disposition of the proceeds from the Proposed Miscellaneous Asset Sale, including the recipient of any such proceeds and the timing of any such payment to such recipient. If no written objection is received from the Notice Parties, the Debtors may consummate the Proposed Miscellaneous Asset Sale, without further notice to any other party and without the need for a hearing, upon entry of an order of this Court submitted under certification of counsel in accordance with these procedures, and upon entry of such order, such Proposed Miscellaneous Asset Sale will be deemed fully authorized by this Court. If a timely written objection is received from the Notice Parties, the Debtors shall comply with the procedures set forth in subparagraph 2(e below. b If the sale consideration from a purchaser for the Miscellaneous Assets, on a per-transaction basis, exceeds $300,000 but is less than $2,000,000, or if the sale is to an insider (as defined in section 101(31 of the Bankruptcy Code in an amount less than $2,000,000, the Debtors will file with the Court a notice, substantially in the form attached hereto as Exhibit 1, of such Proposed Miscellaneous Asset Sale (a Miscellaneous Asset Sale Notice and serve such Miscellaneous Asset Sale Notice via electronic mail and overnight delivery on the Notice Parties and by regular mail on the Notice Parties and those parties, as of the date of such notice, who have filed in these chapter 11 cases a notice of appearance and request for service of papers pursuant to Rule 2002 of the Federal Rules of Bankruptcy Procedure (the Rule 2002 Parties. c The Miscellaneous Asset Sale Notice, to the extent that the Debtors have such information, will include: (i a description of the Miscellaneous Assets that are the subject of the Proposed Miscellaneous Asset Sale; (ii the location of the Miscellaneous Assets; (iii the economic terms of sale; (iv the identity of any non-debtor party to the Proposed Miscellaneous Asset Sale and specify whether that party is an affiliate or insider as those terms are defined under section 101 of the Bankruptcy Code; and (v the identity of the party, if any, holding liens, claims, encumbrances or other interests in the Miscellaneous Assets; (vi a statement regarding whether the Miscellaneous Assets that are the subject of the Proposed Miscellaneous Asset Sale are subject to an Equipment Provider Contract (as defined below; and (vii the Debtors proposed disposition of the proceeds from the Proposed Miscellaneous Asset Sale, including the recipient of any such proceeds and the timing of any such payment to such recipient. d The Notice Parties and the Rule 2002 Parties shall have five (5 business days (unless extended by agreement from the Debtors after the Miscellaneous Asset Sale Notice is filed and served to advise counsel to the Debtors in writing with specific and particular bases that they object to the Proposed Miscellaneous Asset Sale described in such Miscellaneous Asset Sale Notice (as used in these Miscellaneous Asset Sale Procedures, the Objection Deadline. If no written objection is received by the Objection Deadline, the Debtors may consummate the Proposed Miscellaneous Asset Sale, without further notice to any other party and without the need for a hearing, upon entry of an order of this Court submitted under certification of counsel in accordance with these procedures, and upon entry of such order, such Proposed Miscellaneous Asset Sale will be deemed fully authorized by the Court. 3
Case 18-12378-KG Doc 227-1 Filed 11/15/18 Page 5 of 12 e If a written objection to a Proposed Miscellaneous Asset Sale is timely received by the Objection Deadline, the Debtors will not proceed with the Proposed Miscellaneous Asset Sale unless (i the objection is withdrawn or otherwise resolved; or (ii the Court approves the Proposed Miscellaneous Asset Sale at the next regularly scheduled omnibus hearing in these chapter 11 cases that is at least threefive (35 business days after receipt by the Debtors of the objection, or at the next omnibus hearing in these chapter 11 cases that is agreed to by the objecting party and the Debtors. f All buyers will acquire the Miscellaneous Assets sold by the Debtors pursuant to these Miscellaneous Asset Sale Procedures on an AS IS-WHERE IS basis without any representations or warranties from the Debtors as to the quality or fitness of such assets for either their intended or any other purposes; provided, however, that buyers will take title to the Miscellaneous Assets free and clear of all liens, claims, encumbrances and other interests pursuant to section 363(f of the Bankruptcy Code, with all such liens, claims, encumbrances and other interests, if any, to attach to the proceeds of the sale of the Miscellaneous Assets, with the same validity, force, and effect which they had against such Miscellaneous Assets prior to the sale. g Good faith purchasers of the Miscellaneous Assets shall be entitled to the protections of section 363(m of the Bankruptcy Code. h The absence of a timely objection to the sale of the Miscellaneous Assets in accordance with the Miscellaneous Asset Sale Procedures shall be consent to such sale within the meaning of section 363(f(2 of the Bankruptcy Code. i TheUnless otherwise ordered by the Court, the Debtors shall cause the proceeds of all sales of theany Miscellaneous Assets authorized by this Court pursuant to the Miscellaneous Asset Sale Procedures to be applied in accordance with the terms of the Debtors post-petition financing and any interim and final orders approving such financing. j Notwithstanding anything to the contrary set forth herein, (i concurrent with the provision of any notice to the Committee of a Proposed Miscellaneous Asset Sale pursuant to the terms of this Order, the Debtors shall provide to the Committee, with a copy to counsel to the DIP Lender, all valuation information in the Debtors possession relating to the Miscellaneous Asset that is the subject of such Proposed Miscellaneous Asset Sale, to the extent that such valuation information has not been previously provided to the Committee; and (ii with respect to any Equipment Provider Sale, the Committee and the DIP Lender shall have ten (10 days to object in the same form and manner which the Committee and the DIP Lender are otherwise required to object under this Order. 3. Notwithstanding anything to the contrary herein, solely as it pertains to any Miscellaneous Assets that are the subject of any contract (an Equipment Provider Contract to which Ohio Machinery Co. ( Ohio Machinery, Cleveland Brothers Equipment Co., Inc. ( Cleveland Brothers, Caterpillar Financial Services Corporation ( CAT, or PACCAR 4
Case 18-12378-KG Doc 227-1 Filed 11/15/18 Page 6 of 12 Financial Corp. ( PACCAR (each of the foregoing, an Equipment Provider is a party and under which the Debtors have outstanding obligations to the applicable Equipment Provider, the Debtors shall provide written notice of any Proposed Miscellaneous Asset Sale for any such Miscellaneous Assets to the applicable Equipment Provider (an Equipment Provider Sale, via electronic mail and overnight delivery, in the same form and manner which the Debtors are otherwise required to provide notice to the Notice Parties of such sale under this Order, and the applicable Equipment Provider shall have ten (10 days after such notice is given to advise counsel to the Debtors in writing, via electronic mail or overnight delivery, with specific and particular bases, that such Equipment Provider objects to the Proposed Miscellaneous Asset Sale described in such notice (the Equipment Provider Objection Deadline. If no written objection is received from the applicable Equipment Provider on or before the Equipment Provider Objection Deadline, the Debtors may consummate the Proposed Miscellaneous Asset Sale described in such notice in accordance with the terms of this Order. For the avoidance of doubt, no sale of Miscellaneous Assets that are the subject of an Equipment Provider Contract may be consummated pursuant to this Order absent (i written notice to the applicable Equipment Provider as provided for herein and (ii expiration of the Equipment Provider Objection Deadline without an objection from the applicable Equipment Provider in accordance with the terms of this Order. Any written notice required to be given to an Equipment Provider pursuant to this paragraph shall be provided as follows (as applicable: (i counsel to Ohio Machinery, Wolcott Rivers Gates, 200 Bendix Road, Suite 300, Virginia Beach, VA 23452, Attn: Cullen D. Speckhart, Esq. (cspeckhart@wolriv.com, Joshua D. Stiff, Esq. (jstiff@wolriv.com and Diana McGraw, Esq. (dmcgraw@wolriv.com; (ii counsel to Cleveland Brothers, Reed Smith LLP, 1201 N. Market Street, Suite 1500, Wilmington, DE 19801, Attn: 5
Case 18-12378-KG Doc 227-1 Filed 11/15/18 Page 7 of 12 Kurt Gwynne, Esq. (kgwynne@reedsmith.com and Katelin Morales, Esq. (kmorales@reedsmith.com; (iii counsel to CAT, Whiteford, Taylor & Preston L.L.P., (a The Renaissance Centre, 405 North King Street, Suite 500, Wilmington, DE 19801, Attn: Stephen B. Gerald, Esq. (sgerald@wtplaw.com, and (b 10 Jefferson Street, Suite 110, Roanoke, VA 24011, Attn: Brandy M. Rapp, Esq. (brapp@wtplaw.com; and (iv counsel to PACCAR, Fineman Krekstein & Harris, PC, 1300 N. King Street, Wilmington, DE 19801, Attn: Deirdre M. Richards, Esq. (drichards@finemanlawfirm.com. If a timely written objection is received from an Equipment Provider in accordance with the terms of this Order, the Debtors shall comply with the procedures set forth in subparagraph 2(e above. 4. 3. Notice of any sale of the Miscellaneous Assets in accordance with the Miscellaneous Asset Sale Procedures and the terms of this Order shall be sufficient notice of the sale of such assets. 5. 4. The provision in Bankruptcy Rule 6004(h staying an order authorizing the use, sale, or lease of property until the expiration of fourteen (14 days after entry of the order is hereby waived in respect of the sale of any Miscellaneous Assets made in accordance with this Order. 6. 5. The Debtors are authorized and empowered to take all actions necessary to implement the relief granted in this Order. 7. 6. This Court shall retain jurisdiction to hear and determine all matters arising from or related to the implementation of this Order. 6
Case 18-12378-KG Doc 227-1 Filed 11/15/18 Page 8 of 12 Dated: November, 2018 Wilmington, Delaware Kevin Gross United States Bankruptcy Judge 7
Case 18-12378-KG Doc 227-1 Filed 11/15/18 Page 9 of 12 EXHIBIT 1
Case 18-12378-KG Doc 227-1 Filed 11/15/18 Page 10 of 12 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: Chapter 11 In re: Chapter 11 WELDED CONSTRUCTION, L.P., et al., 1 Case No. 18-12378 (KG Debtors. (Jointly Administered Objection Deadline:, 2018 at 4:00 p.m. (ET NOTICE OF PROPOSED MISCELLANEOUS ASSET SALE PLEASE TAKE FURTHER NOTICE that on November [*], 2018, the United States Bankruptcy Court for the District of Delaware (the Court entered that certain Order Establishing Procedures for Sales of Certain Miscellaneous Assets Outside the Ordinary Course of Business Free and Clear of All Liens, Claims, Interests and Encumbrances Pursuant To Section 363 of the Bankruptcy Code [Docket No. *] the ( Miscellaneous Asset Sale Procedures Order, 2 whereby the Court authorized the above-captioned debtors and debtors in possession (the Debtors, to sell certain Miscellaneous Assets in accordance with procedures provided for therein. PLEASE TAKE FURTHER NOTICE that, pursuant to the terms of the Miscellaneous Asset Sale Procedures Order, the Debtors propose to sell (the Proposed Miscellaneous Asset Sale the Miscellaneous Assets as set forth on Exhibit A attached hereto. In accordance with the Miscellaneous Asset Sale Procedures Order, Exhibit A attached hereto provides: (i a description of the Miscellaneous Assets that are the subject of the Proposed Miscellaneous Asset Sale; (ii the location of the Miscellaneous Assets; (iii the economic terms of sale; (iv the identity of any non-debtor party to the Proposed Miscellaneous Asset Sale and specify whether that party is an affiliate or insider as those terms are defined under section 101 of the Bankruptcy Code; and (v the identity of the party, if any, holding liens, claims, encumbrances or other interests in the Miscellaneous Assets; (vi a statement regarding whether the Miscellaneous Assets that are the subject of the Proposed Miscellaneous Asset Sale are subject to an Equipment Provider Contract; and (vii the Debtors proposed disposition of the proceeds from the Proposed Miscellaneous Asset Sale, including the recipient of any such proceeds and the timing of any such payment to such recipient. 01:23791080.323 791080.5 1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor s federal tax identification number, are: Welded Construction, L.P. (5008 and Welded Construction Michigan, LLC (9830. The mailing address for each of the Debtors is 26933 Eckel Road, Perrysburg, OH 43551. 2 Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Miscellaneous Asset Sale Procedures Order.
Case 18-12378-KG Doc 227-1 Filed 11/15/18 Page 11 of 12 PLEASE TAKE FURTHER NOTICE that pursuant to the Miscellaneous Asset Sale Procedures Order, except as otherwise provided for therein with respect to the Equipment Providers, parties shall have until [*], 2018 at 4:00 p.m. (Eastern Time (the Objection Deadline to advise the undersigned counsel to the Debtors in writing with specific and particular bases that they object to the Proposed Miscellaneous Asset Sale. PLEASE TAKE FURTHER NOTICE THAT IF NOA TIMELY WRITTEN OBJECTION IS NOT RECEIVED BY THE OBJECTION DEADLINE, THE ABSENCE OF A TIMELY WRITTEN OBJECTION TO THE PROPOSED MISCELLANEOUS ASSET SALE SHALL BE CONSENT TO SUCH SALE WITHIN THE MEANING OF SECTION 363(F(2 OF THE BANKRUPTCY CODE, AND THE DEBTORS MAY CONSUMMATE THE PROPOSED MISCELLANEOUS ASSET SALE, WITHOUT FURTHER NOTICE TO ANY OTHER PARTY AND WITHOUT THE NEED FOR A HEARING, UPON ENTRY OF AN ORDER OF THE COURT SUBMITTED UNDER CERTIFICATION OF COUNSEL IN ACCORDANCE WITH THE MISCELLANEOUS ASSET SALE PROCEDURES ORDER, AND UPON ENTRY OF SUCH ORDER, THE PROPOSED MISCELLANEOUS ASSET SALE WILL BE DEEMED FULLY AUTHORIZED BY THE COURT. PLEASE TAKE FURTHER NOTICE that if a written objection to the Proposed Miscellaneous Asset Sale is timely received by the Objection Deadline, the Debtors will not proceed with the Proposed Miscellaneous Asset Sale unless (i the objection is withdrawn or otherwise resolved; or (ii the Court approves the Proposed Miscellaneous Asset Sale at the next regularly scheduled omnibus hearing in these chapter 11 cases that is at least threefive (35 business days after receipt by the Debtors of the objection, or at the next omnibus hearing in these chapter 11 cases that is agreed to by the objecting party and the Debtors. Dated:, 2018 Wilmington, Delaware YOUNG CONAWAY STARGATT & TAYLOR, LLP M. Blake Cleary (No. 3614 Sean M. Beach (No. 4070 Justin H. Rucki (No. 5304 Betsy L. Feldman (No. 6410 Rodney Square, 1000 North King Street Wilmington, DE 19801 Telephone: (302 571-6600 Facsimile: (302 571-1253 Proposed Counsel to the Debtors 01:23791080.323 791080.5 2
Case 18-12378-KG Doc 227-1 Filed 11/15/18 Page 12 of 12 Exhibit A 01:23791080.323 791080.5