Case:12-10410-swd Doc #:454 Filed: 02/08/13 Page 1 of 25 UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF MICHIGAN In re: STAMP FARMS, L.L.C. et al. 1, Debtors. ) ) ) ) ) ) Case No. 12-10410 Chapter 11 Hon. Scott. W. Dales Jointly Administered ORDER APPROVING BULK SALE This matter coming before the Court on (i) the Motion for Orders Approving (A) Auction Procedures, (B) the Sale of Substantially All of the Debtors' Assets Free and Clear of All Liens, Claims, Interests and Encumbrances, and (C) Related Notices [Docket No. 181], as supplemented by the Debtors' First Supplement thereto [Docket No. 230] (collectively, the "Sale Motion"), filed by the above-captioned debtors and debtors in possession (the "Debtors") to authorize the sale of substantially all of the Debtors' assets (the "Sale"); the Debtors having filed their Notice of Stalking Horse Asset Purchase Agreement on January 17, 2013 [Docket No. 265], which included the Asset Purchase Agreement for the sale of substantially all of the Debtors' assets (the "Assets") to Boersen Farms, Inc. (as the "Purchaser"), as amended by the First Amendment to the Asset Purchase Agreement [Docket No. 404] and as may be amended from time to time (the "Purchase Agreement") and (ii) various objections to the Sale Motion filed by creditors and other parties in interest in these cases (the Objections ); and the Court having entered that Preliminary Order Approving Certain Sale Procedures And Adjourning Hearing on January 18, 2013 [Docket No. 288] (the "Preliminary Sale Procedures Order"); and the Court 1 This case is being jointly administered with the following cases: In re: Stamp Farms Trucking, L.L.C. (Case No, 12-10411); In re Stamp Farms Custom AG, L.L.C. (Case No. 12-10416); and In re Royal Star Farms, L.L.C. (Case No. 12-10417).
Case:12-10410-swd Doc #:454 Filed: 02/08/13 Page 2 of 25 having entered its Order Approving Auction Procedures for the Sale of Substantially All of the Debtors' Assets Free and Clear of All Liens, Claims, Interests and Encumbrances [Docket No. 374] (the "Final Sale Procedures Order" and together with the Preliminary Sale Procedures Order, the "Sale Procedures Orders"); the Debtors having filed their Preliminary Proposed Stalking Horse Bid Purchase Price Allocation (the "Preliminary Allocation") [Docket No. 320] and their Revised Proposed Stalking Horse Bid Purchase Price Allocation (the "Revised Allocation") [Docket No. 405] relating to the proposed allocation of the proceeds from the sale of the Assets; the Debtors having mailed and published the Notices 2 on January 22, 2013 as required by the Preliminary Sale Procedures Order and published the Auction Notice on January 23, 2013 as required by the Preliminary Sale Procedures Order; the Debtors having held the Bulk Sale Auction on February 5, 2013 and having filed their Supplement Regarding Bulk Sale Auction [Docket No. 431] as their report on the results of the Bulk Sale Auction that there were no Credit Bids and that the bid pursuant to the Purchase Agreement was the Prevailing Bid; and the Debtors having determined, after a marketing process and the Bulk Sale Auction, that the Prevailing Bid based upon the Purchase Price (as such term is defined in the Purchase Agreement) and all other terms and conditions of the Purchase Agreement is the highest and best offer for the Assets; and this Court having reviewed and considered (i) the Sale Motion and all relief related thereto and (ii) any unresolved Objections thereto; and this Court having heard statements, and the arguments of counsel made, and the evidence presented in support of the relief requested by the Debtors in the Sale Motion at hearing before this Court (the "Sale Hearing"); and upon the record of the Sale Hearing and these chapter 11 cases, and after due deliberation and sufficient cause appearing therefor; 2 Capitalized terms used but not defined in this Order Approving Bulk Sale ("Order") shall have the meanings ascribed to such terms in the Sale Motion and the Sale Procedures Orders. 2
Case:12-10410-swd Doc #:454 Filed: 02/08/13 Page 3 of 25 THE COURT HEREBY FINDS AND DETERMINES THAT: A. The Court has jurisdiction over this matter pursuant to 28 U.S.C. 157 and 1334. This is a core proceeding pursuant to 28 U.S.C. 157(b)(2). Venue is proper in this District and in this Court pursuant to 28 U.S.C. 1408 and 1409. B. The statutory predicates for the relief requested in the Sale Motion are sections 105(a) and 363 of the Bankruptcy Code, Bankruptcy Rules 2002(a)(2), 6004, 6006, 9007 and 9014, and Local Rule 6004. Notice C. Proper, timely, adequate, and sufficient notice of the Sale Motion, the Sale Hearing, the Sale, the Bid Deadline and Bulk Sale Auction, the assumption and assignment of the Pre-Petition Contracts (as such term is defined in the Sale Motion), and the Cure Amounts (as such term is defined in the Purchase Agreement) has been provided in accordance with 11 U.S.C. 102(l), 363, and 365 and Fed. R. Bankr. P. 2002, 6004, 6006, and 9014, such notice was good, sufficient, and appropriate under the circumstances, and no other or further notice of the Sale Motion, the Sale Hearing, the Sale, the Bid Deadline, the Bulk Sale Auction, or the assumption and/or assignment of the Pre-Petition Contracts is or shall be required. D. In accordance with the provisions of the Sale Procedures Orders, the Debtors have served notice of the Cure Amounts (the "Cure Notice") upon each non-debtor counterparty to a Pre-Petition Contract that the Debtors seek to assume and assign to the Purchaser. The service of such Cure Notice was good, sufficient, and appropriate under the circumstances and no further notice need be given in respect of establishing a Cure Amount for the respective Pre-Petition Contract. Non-Debtor counterparties to the Pre-Petition Contracts have had a reasonable opportunity to object to the Cure Amounts and assumption and assignment of the Pre-Petition 3
Case:12-10410-swd Doc #:454 Filed: 02/08/13 Page 4 of 25 Contracts set forth in the Cure Notices. E. As demonstrated by (i) the testimony and other evidence proffered or adduced at the Sale Hearing and (ii) the statements of counsel made on the record at the Sale Hearing, the Debtors have marketed the Assets and conducted the sale and bidding process in compliance with the Sale Procedures Orders and the Bulk Sale Auction was duly noticed and conducted in a non-collusive, fair, and good faith manner. F. A reasonable opportunity to object or be heard with respect to the Sale Motion and the relief requested therein has been afforded to all interested persons and entities. Good Faith of Purchaser G. The Purchase Agreement was negotiated, proposed and entered into by the Debtors and the Purchaser without collusion, in good faith and from arms-length bargaining positions. The Purchaser is not an "insider" of the Debtors, as that term is defined in section 101(31) of the Bankruptcy Code. H. Neither the Debtors nor the Purchaser have engaged in any conduct that would cause or permit the Purchase Agreement or the consummation of the Sale to be avoided, or costs or damages to be imposed, under Bankruptcy Code section 363(n). Specifically, the Purchaser has not acted in a collusive manner with any person and the Purchase Price was not controlled by any agreement among other interested purchasers. I. The Purchaser is purchasing the Assets in "good faith," as such term is used in section 363(m) of the Bankruptcy Code, and the Purchaser is therefore entitled to all of the protection afforded by that provision. The Purchaser has otherwise proceeded in good faith in all respects in connection with these chapter 11 proceedings in that, inter alia: (a) the Purchaser recognized that the Debtors were free to deal with any other party interested in acquiring the 4
Case:12-10410-swd Doc #:454 Filed: 02/08/13 Page 5 of 25 Assets; (b) the Purchaser complied with the provisions in the Sale Procedures Orders; (c) the Purchaser in no way induced or caused these chapter 11 filings by the Debtors; (d) all payments to be made by the Purchaser in connection with the Sale have been disclosed; and (e) no common identity of managers or controlling members exists between the Purchaser and the Debtors. Highest and Best Offer J. The Debtors conducted the Bulk Sale Auction process in accordance with, and have otherwise complied in all respects with, the Sale Procedures Orders. The Bulk Sale Auction process set forth in the Sale Procedures Orders afforded a full, fair and reasonable opportunity for any person or entity to submit a bid to purchase the Assets. The Bulk Sale Auction was duly noticed and conducted in a noncollusive, fair and good faith manner. K. The Prevailing Bid constitutes the highest and best offer for the Assets and will provide a greater recovery for the Debtors' estates than would be provided by any other available alternative. The Debtors' determination that the Prevailing Bid constitutes the highest and best offer constitutes a valid and sound exercise of the Debtors' business judgment. Amendments to Purchase Agreement L. After the Bulk Sale Auction, the Debtors and the Purchaser negotiated further amendments to the Purchase Agreement to reconcile the Assets to be purchased and sold, which amendments are to be evidenced by a further amendment to the Purchase Agreement (the "Second Amendment"). No Fraudulent Transfer M. The consideration provided by the Purchaser pursuant to the Purchase Agreement (i) is fair and reasonable, (ii) is the highest and best offer for the Assets and (iii) constitutes 5
Case:12-10410-swd Doc #:454 Filed: 02/08/13 Page 6 of 25 reasonably equivalent value (as those terms are defined in each of the Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act and section 548 of the Bankruptcy Code) and fair consideration under the Bankruptcy Code and under the laws of the United States, any state, territory, possession or the District of Columbia. No other person or entity or group of entities has offered to purchase the Assets for greater economic value to the Debtors' estates than the Purchaser. Approval of the Sale Motion and the Purchase Agreement and the consummation of the transactions contemplated thereby are in the best interests of the Debtors, their estates and creditors and other parties in interest. Validity of Transfer N. The Purchaser is not a continuation of the Debtors or their respective estates and there is no continuity of enterprise between the Purchaser and the Debtors. The Purchaser is not holding itself out to the public as a continuation of the Debtors. The Purchaser is not a successor to the Debtors or their respective estates and the Sale does not amount to a consolidation, merger, or de facto merger of the Purchaser and the Debtors. The transactions contemplated by the Purchase Agreement are not being entered into fraudulently or to escape liability for the Debtors' debts. O. The Debtors (i) have full power and authority to execute and deliver the Purchase Agreement and all other documents contemplated thereby, (ii) have all authority necessary to consummate the transactions contemplated by the Purchase Agreement, and (iii) have taken all action necessary to authorize and approve the Purchase Agreement and the consummation of the transactions contemplated thereby. The Sale has been duly and validly authorized by all necessary corporate action of the Debtors. No consents or approvals, other than those expressly provided for in the Purchase Agreement, are required for the Debtors to consummate the Sale 6
Case:12-10410-swd Doc #:454 Filed: 02/08/13 Page 7 of 25 and the Purchase Agreement and the transactions contemplated thereby. P. The transfer of the Assets to the Purchaser will be a legal, valid, and effective transfer of the Assets, and shall vest the Purchaser with all right, title, and interest of the Debtors to the Assets free and clear of any and all liens, claims, interests, and encumbrances of any type whatsoever, whenever and however arising (whether known or unknown, choate or inchoate, filed or unfiled, scheduled or unscheduled, noticed or unnoticed, recorded or unrecorded, perfected or unperfected, allowed or disallowed, contingent or noncontingent, liquidated or unliquidated, matured or unmatured, material or non-material, disputed or undisputed, whether arising prior to or subsequent to the commencement of the chapter 11 cases, and whether imposed by agreement, understanding, law, equity, or otherwise, including claims otherwise arising under doctrines of successor liability), including, but not limited to those (i) that purport to give to any party a right or option to effect any forfeiture, modification, right of first refusal, or termination of the Debtors' or the Purchaser's interest in the Assets, or any similar rights, and (ii) relating to taxes arising under or out of, in connection with, or in any way relating to the operation of the Assets prior to the Closing Date (as such term is defined in the Purchase Agreement) (collectively, the "Interests"). Q. The Debtors may sell the Assets free and clear of all Interests, to the extent provided in the Purchase Agreement and this Order, because, with respect to each creditor asserting an Interest, one or more of the standards set forth in section 363(f)(1)-(5) of the Bankruptcy Code has been satisfied. Those holders of Interests who did not object or who withdrew their Objections to the Sale or the Sale Motion are deemed to have consented to the Sale Motion and Sale pursuant to 11 U.S.C. 363(f)(2). All holders of Interests in the Assets are adequately protected by having their Interests attach to the sale proceeds attributable to the 7
Case:12-10410-swd Doc #:454 Filed: 02/08/13 Page 8 of 25 Assets in respect of which such Interests are asserted. R. A sale of the Assets other than one free and clear of all Interests would yield substantially less value than the Sale; thus, the Sale free and clear of all Interests, in addition to all of the relief provided herein, is in the best interests of the Debtors and their estates and creditors and other parties in interest. S. The Purchaser would not have entered into the Purchase Agreement and would not consummate the transactions contemplated thereby, thus adversely affecting the Debtors and their estates and creditors and other parties in interest if either: (i) the sale of the Assets to the Purchaser was not free and clear of all Interests; or (ii) the Purchaser would, or in the future could, be liable for any of such Interests or any claims against the Debtors based upon successor or vicarious liability or otherwise. Unless otherwise expressly included in the Assumed Liabilities (as defined in the Purchase Agreement), the Purchaser shall not be responsible for any Interests. T. The Debtors have demonstrated that it is an exercise of their sound business judgment to assume and/or assign the Pre-Petition Contracts as applicable to the Purchaser in connection with the Closing (as such term is defined in the Purchase Agreement) of the Sale, and the assumption and/or assignment of the Pre-petition Contracts is in the best interests of the Debtors, their estates, their creditors, and their stakeholders. The Pre-Petition Contracts being assigned to, and the liabilities being assumed by, the Purchaser are an integral part of the Assets being purchased by the Purchaser and, accordingly, such assumption and/or assignment of the Pre-Petition Contracts is reasonable and enhances the value of the Debtors' estates. U. The Debtors have (i) cured, or have provided adequate assurance that they will promptly cure, any default existing prior to the Closing of the Sale under any of the Pre-Petition 8
Case:12-10410-swd Doc #:454 Filed: 02/08/13 Page 9 of 25 Contracts, within the meaning of 11 U.S.C. 365(b)(1)(A), by payment of the Cure Amounts provided on the Debtors' Notice of Final Cure Amounts [Docket No. 451] and (ii) compensated, or have provided adequate assurance that they will promptly compensate any non-debtor party to any Pre-Petition Contract for any actual pecuniary loss to such party resulting from a default prior to the date hereof under any of the Pre-Petition Contracts, within the meaning of 11 U.S.C. 365(b)(1)(B). The Debtors have provided or will provide by the Closing Date adequate assurance of future performance of and under the Pre-Petition Contracts, within the meaning of 11 U.S.C. 365(b)(1)(C) and 365(f)(2)(B). Pursuant to 11 U.S.C. 365(f), the Pre-Petition Contracts to be assumed and assigned under the Purchase Agreement shall be assigned and transferred to, and remain in full force and effect for the benefit of, the Purchaser notwithstanding any provision in the Pre-Petition Contracts of other restrictions prohibiting their assignment or transfer. V. Approval of the Purchase Agreement, consummation of the Sale of the Assets and the assignment of the Pre-Petition Contracts at this time are in the best interests of the Debtors, their estates, their creditors, their stakeholders, and all other parties-in-interest. NOW THEREFORE, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT: General Provisions 1. The Sale Motion is GRANTED. Approval of the Purchase Agreement 2. Pursuant to 11 U.S.C. 363(b), the Purchase Agreement and all of the terms and conditions thereof are hereby approved and the Prevailing Bid is the Winning Bid. 3. The Debtors shall file all further amendments to the Purchase Agreement promptly upon execution thereof. 9
Case:12-10410-swd Doc #:454 Filed: 02/08/13 Page 10 of 25 4. Upon the filing of the Second Amendment, the Debtors shall promptly file a further revised proposed allocation of the proceeds of the Bulk Sale based upon the Purchase Agreement as amended by the Second Amendment. 5. Pursuant to 11 U.S.C. 363(b), the Debtors are authorized, but not directed, to perform their obligations under the Purchase Agreement and comply with the terms thereof and consummate the Sale in accordance with and subject to the terms and conditions of the Purchase Agreement. 6. The Debtors are authorized, but not directed, to execute and deliver, and empowered to perform under, consummate, and implement, the Purchase Agreement, together with all additional instruments and documents and further amendments thereto as may be reasonably necessary or desirable to implement the Purchase Agreement, and to take all further actions as may be requested by the Purchaser for the purpose of assigning, transferring, granting, conveying, and conferring to the Purchaser or reducing to possession the Assets and the Pre- Petition Contracts, or as may be necessary or appropriate to the performance of the obligations as contemplated by the Purchase Agreement. A notice of the consummation of the closing of the purchase and sale of the Assets pursuant to the Purchase Agreement shall be filed in this case. 7. This Order and the Purchase Agreement shall be binding in all respects upon the Debtors, the Purchaser, all successors and assigns of the Purchaser and the Debtors, all affiliates and subsidiaries of the Purchaser and the Debtors, all creditors and stakeholders (whether known or unknown) of the Debtors, and any subsequent trustees appointed in these chapter 11 cases or upon a conversion to chapter 7 under the Bankruptcy Code, and the Purchase Agreement shall not be subject to rejection. To the extent that any provision of this Order is inconsistent with the terms of the Purchase Agreement, this Order shall govern. 10
Case:12-10410-swd Doc #:454 Filed: 02/08/13 Page 11 of 25 8. If the sale contemplated by the Purchase Agreement is not consummated and closed pursuant to the terms of the Purchase Agreement on or before the Closing Date, the Debtors and any auctioneers approved by this Court are authorized, but not directed, to commence marketing and preparing the Assets for sale at one or more Parcel Sale Auctions and/or Private Sales pursuant to the terms of the Sale Procedures Orders. The Debtors are authorized to consummate such sales of Parcels without further order of this Court, and the relief granted to the Debtors in connection with the Purchase Agreement and Bulk Sale Auction pursuant to this Order shall also apply to the Parcel Sale Auction and any Private Sale. 9. The Purchase Agreement and any related agreements, documents, or other instruments may be modified, amended, or supplemented by the parties thereto, including the addition of assets of the Debtors or with respect to which the Debtors have an interest, without further order of the Court; provided that, in the good faith business judgment of the Debtors, any such modification, amendment, or supplement does not have a material adverse effect on the Debtors' estates and their creditors. Notice of such actions shall be filed in this case. 10. To the extent a non-debtor party asserts any ownership interests in any of the Assets in which a Debtor has an interest, the Debtors are authorized to sell such Assets to the extent of such interest of the Debtors with the consent of such party and, with respect to Assets in which such ownership interests are held by the estate in In re: Michael D. Stamp, Chapter 11 Case No. 12-10430 pending in this Court (the "Mike Stamp Case"), subject to the entry of appropriate orders authorizing and approving the sale of such interests (in each instance, a "Mike Stamp Case Sale Order"). Sale and Transfer of the Assets 11. Except as expressly permitted or otherwise specifically provided for in the 11
Case:12-10410-swd Doc #:454 Filed: 02/08/13 Page 12 of 25 Purchase Agreement or this Order, pursuant to 11 U.S.C. 363(b) and 363(f), upon the consummation of the Purchase Agreement, the Debtors' right, title, and interest in the Assets shall be transferred to the Purchaser free and clear of all Interests, with all such Interests to attach to the cash proceeds of the Sale in the order of their priority, in the same amount and with the same validity, priority, force, and effect which they had as against the Assets immediately before such transfer, subject to any claims and defenses to such Interests which the Debtors or the Committee of Creditors (the "Committee") may possess with respect thereto. 12. The transfer of the Assets to the Purchaser pursuant to the Purchase Agreement constitutes a legal, valid, and effective transfer of the Assets and shall vest the Purchaser with all right, title, and interest of the Debtors in and to the Assets free and clear of all Interests of any kind or nature whatsoever. 13. If any person or entity which has filed financing statements, mortgages, mechanic's liens, lis pendens, or other documents or agreements evidencing Interests against or in the Assets shall not have delivered to the Debtors prior to the Closing of the Sale, in proper form for filing and executed by the appropriate parties, termination statements, instruments of satisfactions, or other appropriate releases of all Interests that the person or entity has with respect to the Assets ("Releases"), then (i) the Debtors are hereby authorized to execute and file such Releases on behalf of the person or entity with respect to the Assets and (ii) the Purchaser is hereby authorized to file, register, or otherwise record a certified copy of this Order, which, once filed, registered, or otherwise recorded, shall constitute conclusive evidence of the release of all Interests in the Assets of any kind or nature whatsoever. Notice of such actions shall be given in each such instance to the party holding such Interest. 14. This Order (i) shall be effective as a determination that, upon the Closing of the 12
Case:12-10410-swd Doc #:454 Filed: 02/08/13 Page 13 of 25 Sale, all Interests of any kind or nature whatsoever existing as to the Debtors or the Assets being sold by the Debtors prior to the Closing of the Sale have been unconditionally released, discharged, and terminated, and that the conveyances described herein have been effected, and (ii) shall be binding upon and shall govern the acts of all entities including, without limitation, all filing agents, filing officers, title agents, title companies, recorders of mortgages, recorders of deeds, registrars of deeds, administrative agencies, governmental departments, secretaries of state, federal, state, and local officials, and all other persons and entities who may be required by operation of law, the duties of their office, or contract, to accept, file, register, or otherwise record or release any documents or instruments, or who may be required to report or insure any title or state of title in or to any of the Assets. 15. All persons and entities, including, but not limited to, all debt security holders, equity security holders, governmental, tax, and regulatory authorities, lenders, trade creditors, and other stakeholders, holding Interests of any kind or nature whatsoever against or in the Debtors or the Assets being sold by the Debtors (whether legal or equitable, secured or unsecured, matured or unmatured, contingent or non-contingent, senior or subordinated), arising under or out of, in connection with the Assets being sold by the Debtors, or the transfer of the Assets to the Purchaser, hereby are forever barred, estopped, and permanently enjoined from asserting against the Purchaser, their successors or assigns, their property, or the Assets, such persons' or entities' Interests. Nothing in this Order or the Purchase Agreement releases or nullifies any liability to a governmental agency under any environmental laws and regulations that any entity would be subject to as owner or operator of any Assets after the date of entry of this Order. Nothing in this Order or the Agreement bars, estops, or enjoins any governmental agency from asserting or enforcing, outside the Court, any liability described in the preceding 13
Case:12-10410-swd Doc #:454 Filed: 02/08/13 Page 14 of 25 sentence. Notwithstanding the above, nothing herein shall be construed to permit a governmental agency to obtain penalties from the Purchaser for days of violation of environmental laws and regulations prior to Closing. All persons and entities are hereby forever prohibited and enjoined from taking any action that would adversely affect or interfere with the ability of the Debtors to sell and transfer the Assets to the Purchaser, in each case in accordance with the terms of the Purchase Agreement and this Order. Assumption and Assignment to the Purchaser of the Pre-Petition Contracts 16. Pursuant to 11 U.S.C. 105(a) and 365, and subject to and conditioned upon the Closing of the Sale and the payment of the Cure Amount, the Debtors' assumption and assignment to the Purchaser, and the Purchaser's assumption on the terms set forth in the Purchase Agreement, of the Pre-Petition Contracts is hereby approved, and the requirements of 11 U.S.C. 365(b)(1) and 365(f) with respect thereto are hereby deemed satisfied. 17. The Debtors are hereby authorized in accordance with 11 U.S.C. 105(a), 363, and 365 to (a) assume and/or assign to the Purchaser the Pre-Petition Contracts free and clear of all Interests of any kind or nature whatsoever and (b) execute and deliver to the Purchaser such documents or other instruments as may be necessary to assign and transfer the Pre-Petition Contracts to the Purchaser. 18. The Debtors are hereby authorized in accordance with 11 U.S.C. 105(a), 363, and 365 to assume and assign to Purchaser, the Pre-Petition Contracts for the lease of farm land and related irrigation equipment in which Debtor Stamp Farms and Debtor Michael D. Stamp hold interests as lessees, including, without limitation, a certain Pre-Petition Contract with Mitchell FLP's 1, 2, 3, 4, 5 and Decatur Properties LLC, as lessors, entitled "Master Lease" and dated April 30, 2009, as amended, but limited to the Farm Land Lease only, subject to the entry of an 14
Case:12-10410-swd Doc #:454 Filed: 02/08/13 Page 15 of 25 appropriate order authorizing such assumption and assignment in the Mike Stamp Case. 19. The Pre-Petition Contracts shall be transferred to, and remain in full force and effect for the benefit of, the Purchaser in accordance with their respective terms, notwithstanding any provision in any such Pre-Petition Contract (including those of the type described in 11 U.S.C. 365(b)(2) and (f)) that prohibits, restricts, or conditions such assignment or transfer and, pursuant to 11 U.S.C. 365(k), the Debtors shall be relieved from any further liability with respect to the Pre-Petition Contract after such assignment to and assumption of such contracts by the Purchaser. 20. All defaults or other obligations of the Debtors under the Pre-Petition Contracts arising or accruing prior to the Closing of the Sale (without giving effect to any acceleration clauses or any default provisions of the kind specified in 11 U.S.C. 365(b)(2)) shall be cured by the Purchaser at the Closing of the Sale or as soon thereafter as practicable but not later than March 30, 2013, or absent an agreement as to the Cure Amount between the Debtors or Purchaser and the non-debtor party to a Pre-Petition Contract, by order of this Court, and the Purchaser shall have no liability or obligation arising or accruing prior to the date of the Closing of the Sale, except as otherwise expressly provided in the Purchase Agreement. Each non-debtor party to any Pre-Petition Contract shall be deemed to have consented to the assumption and assignment of the Pre-Petition Contracts to the Purchaser and shall be forever barred, estopped, and permanently enjoined from asserting against the Debtors or the Purchaser, or the property of any of them, any default, breach, claim, pecuniary loss, or condition to assignment that exists, arises, or accrues as of the date of the Closing or any purported written or oral modification to the Pre-Petition Contracts. The failure of the Debtors or the Purchaser to enforce prior to the Closing of the Sale one or more terms or conditions of any Pre-Petition Contracts shall not be a 15
Case:12-10410-swd Doc #:454 Filed: 02/08/13 Page 16 of 25 waiver of such terms or conditions, or of the Debtors' or the Purchaser's rights to enforce every term and condition of any such Pre-Petition Contracts. There shall be no rent accelerations, assignment fees, increases, or any other fees charged to the Purchaser as a result of the assumption and assignment of the Pre-Petition Contracts. 21. To the extent the Debtors, Purchaser and a non-debtor party to a Pre-Petition Contract are unable to resolve any disputes regarding a Cure Amount prior to the Closing, the Purchaser shall pay the undisputed portion of the Cure Amount (the "Undisputed Cure Amount") to the non-debtor party and shall pay to the Debtors the disputed portion of the Cure Amount (the "Disputed Cure Amount"), which shall be held in escrow by the Debtors pending the resolution of the Disputed Cure Amount. Upon the resolution of the Disputed Cure Amount (whether by agreement or order of this Court), the Debtors shall pay non-debtor party to the Pre- Petition Contract the portion of the Disputed Cure Amount in excess of the Undisputed Cure Amount (if any), and any portion of the Disputed Cure Amount not paid to the non-debtor party to the Pre-Petition Contract shall become property of the applicable Debtor's estate. 22. Cure Amounts recovered by non-debtor parties to Pre-Petition Contracts are made only for purposes of satisfying the requirements of 11 U.S.C. 365 and are without prejudice to the Debtors rights to assert any causes of action arising under or preserved pursuant to 11 U.S.C. 501 et seq (including, without limitation, the right to challenge amounts claimed due in respect of such Cure Amounts before or after any sales effectuated as part of the Bulk Sale Auction or pursuant to any Parcel Sale Auction or Private Sale). Cure Amounts affirmatively claimed and/or distributions received on account of the Cure Amounts shall be treated as affirmative filings with this Court by the non-debtor recipients thereof of proofs of claim in respect of the Cure Amounts claimed and/or received and thereby subject to the same rules, 16
Case:12-10410-swd Doc #:454 Filed: 02/08/13 Page 17 of 25 affirmations, and penalties associated with the filing of proofs of claim in this Court. 23. Each non-debtor party to a Pre-Petition Contract hereby is forever barred, estopped, and permanently enjoined from asserting against the Debtors or the Purchaser, or the property of either of them, any default, breach, claim, pecuniary loss, or condition to assignment existing, arising or accruing as of the Closing of the Sale. 24. The assumption and assignment of any Pre-Petition Contract shall be effective only upon the payment of the Cure Amount on or before any deadline set forth herein. If the Cure Amount is not paid on or before any deadline set forth herein, or pursuant to an agreement between the non-debtor party, the Debtors and the Purchaser for a different manner of payment, then such Pre-Petition Contract shall be deemed to have not been assumed or assigned. Terms of Settlement and Withdrawal of Certain Objections 25. The Objection filed by Al Higdon and Higdon Farms, LLC [Docket No. 316] ("Higdon") is resolved by agreement by the Debtors and Higdon that the Cure Amount for the Pre-Petition Contract with Higdon is $20,625; and, Higdon consents to the assumption and assignment of such Pre-Petition Contracts pursuant to the terms and conditions of this Order and the Objection is deemed withdrawn. 26. The Objection filed by Mary Lou Peck [Docket No. 409] and Donald Leroy Peck [Docket No. 410] (collectively, the "Pecks") are resolved by agreement by the Debtors and the Pecks that the Cure Amounts for the Pre-Petition Contracts with the Pecks are $185,600 and $21,750, respectively, which Cure Amounts constitute payments of rent for 2013; and, the Pecks consent to the assumption and assignment of such Pre-Petition Contracts pursuant to the terms and conditions of this Order and the Objections are deemed withdrawn. 27. The Objection filed by Farmland Management Services, Inc. [Docket No. 427] 17
Case:12-10410-swd Doc #:454 Filed: 02/08/13 Page 18 of 25 ("Farmland") is resolved by the agreement by the Debtors and Farmland that the Cure Amount for the Pre-Petition Contract with Farmland is as set forth in the Objection, Farmland consents to the assumption and assignment of such Pre-Petition Contract pursuant to the terms and conditions of this Order and the Objection is deemed withdrawn. 28. The Objection filed by Thomas R. Mitchell, Mitchell Family Partnerships and Decatur Properties, LLC [Docket No. 423] (the "Mitchell Parties") is resolved by the agreement of the Debtors and the Mitchell Parties that (i) the Cure Amount for the Pre-Petition Contract with the Mitchell Parties is $990,230, which Cure Amount constitutes payment of past due rent for 2012 in the amount of $833,030 (the "2012 Cure Amount") and payment of rent for 2013 due or to become due prior to February 20, 2013 of $157,200, and (ii) notwithstanding the March 30, 2013 deadline set forth in paragraph 20 above, the Debtors shall cause the 2012 Cure Amount to be remitted from the Purchase Price to the Mitchell Parties immediately upon receipt of any funds due at the Closing of the Sale, the Mitchell Parties consent to the assumption and assignment of such Pre-Petition Contract pursuant to the terms and conditions of this Order and the Objection is deemed withdrawn. 29. The Objections of Caterpillar Financial Services Corporation ("Caterpillar") [Docket Nos. 255, 325 and 326] are resolved by agreement of the Debtors and Caterpillar that the interest of the Debtors in the assets described in the Objections (the "CAT Equipment") may be sold to the Purchaser subject to the entry of a Mike Stamp Case Sale Order. Caterpillar consents to the Sale and the Objections are deemed withdrawn, provided however, all rights of Caterpillar in the Mike Stamp Case, including with regard to any motion relating to a Mike Stamp Case Sale Order, are preserved. 30. The Objections of Thomas R. Tibble, Chapter 11 Trustee in the Mike Stamp Case 18
Case:12-10410-swd Doc #:454 Filed: 02/08/13 Page 19 of 25 (the "Trustee") [Docket Nos. 250 and 433], are resolved by the agreement of the Debtors and the Trustee that (i) the Debtors may sell the Mike Stamp Equipment and assume and assign the Mike Stamp Pre-Petition Contracts pursuant to the Purchase Agreement free and clear of all Interests of the Trustee and the Mike Stamp Case, (ii) the payment by the Debtors to the Trustee from the proceeds of the Sale at the Closing of the sum of $560,000, (iii) the assumption by the Trustee and the Mike Stamp Case of all indebtedness securing the Mike Stamp Equipment, and (iv) the agreement of the parties that the Debtors may sell and assign other items of personal property and Pre-Petition Contracts that are included in the Assets under the Purchase Agreement with respect to which it is discovered after the entry of this Order that Trustee and the Mike Stamp Case have an Interest, all subject to the entry of a Mike Stamp Case Order approving the terms of the agreement,. The Mike Stamp Equipment consists of: (i) the CAT Equipment that is not subject to a Pre-Petition Contract; and (ii) the assets identified on Exhibit D to the Revised Allocation as First Farmers Mike Stamp. The Mike Stamp Pre-Petition Contracts consist of: (i) the Pre-Petition Contract with the Mitchell Parties, and (ii) the Pre-Petition Contracts with Ruth Barrett, Gilbert Benevides, Don Burg, Paul File, Diana Hackbarth, George Kempf, Rick Mead, Victor Vaive, John Vargo, Brian Cady and Clark St. Partners covering approximately 927 acres of farmland in the aggregate. 31. The Objection of AGCO Finance, LLC ("AGCO") is resolved by the agreement of the Debtors and AGCO that the allocation to AGCO in the Revised Allocation shall be increased to $525,000, AGCO consents to the Sale and the Objection is deemed withdrawn. Distributions from Proceeds of Closing of Bulk Sale 32. At the Closing of the Sale, the Debtors shall cause the sum of $3,700,000 to be remitted from the Purchase Price (the "Wells Fargo Provisional Payment") in immediately 19
Case:12-10410-swd Doc #:454 Filed: 02/08/13 Page 20 of 25 available funds by wire transfer to Wells Fargo Bank, National Association ("Wells Fargo") on account of the Interests of Wells Fargo in the Assets, as a provisional payment on the claims of Wells Fargo in these cases. The Wells Fargo Provisional Payment shall not constitute a final payment and is made without prejudice, limitation to, or waiver of (a) the rights of Wells Fargo to assert its Interests in the Assets attach to an additional or different amount of the sale proceeds, (b) all other claims, security interests and rights of Wells Fargo in the Debtors cases and/or against third parties, and (c) all rights of the estates of these Debtors to object to the extent, validity, priority, force and effect of the Interests of Wells Fargo in the Assets. The Wells Fargo Provisional Payments is made to secure consent of Wells Fargo to the Sale. 33. At the Closing of the Sale, the Debtors shall cause the sum of $8,150,000, without reduction or obligation for closing costs, to be remitted from the Purchase Price (the "CNH Final Payment") in immediately available funds by wire transfer to CNH Capital America, LLC ("CNH"). The CNH Final Payment shall constitute a full and final satisfaction of all claims of CNH asserted or that could have been asserted in the Debtors' cases. Upon receipt by CNH of the CNH Final Payment, (a) CNH's proof of claim shall be deemed withdrawn; (b) each of the Debtors and CNH shall be deemed to have released any and all claims against the other arising on or before the Closing Date; (c) the Committee shall be deemed to have waived any and all right to assert adversary or preference claims against CNH; and (d) Wells Fargo and Wells Fargo Equipment Leasing shall be deemed to have waived any claim or right to contest the Interests, including the PMSI lien of CNH in the CNH collateral and CNH Final Payment. Allocations of Purchase Price 34. The consent of each PMSI Secured Creditor to the Sale free and clear of the Interests of such PMSI Secured Creditor in the Assets in which such PMSI Secured Creditor 20
Case:12-10410-swd Doc #:454 Filed: 02/08/13 Page 21 of 25 holds such Interests was based on the agreement between the Debtors and such PMSI Secured Creditor that the portion of the Purchase Price to be allocated to such PMSI Secured Creditor will be not less that the allocation set forth in the Revised Allocation subject to adjustments as agreed to prior to and after the entry of this Order in a manner consistent with paragraph 9 of the Final Sale Procedures Order; and, allocation to each PMSI Secured Creditor shall be made in such manner. Additional Provisions 35. The consideration provided by the Purchaser for the Assets under the Purchase Agreement is hereby deemed to constitute reasonably equivalent value and fair consideration under the Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act, and under the laws of the United States, and any state, territory, or possession thereof, or the District of Columbia. 36. Upon the Closing of the Sale, this Order shall be construed as and shall constitute for any and all purposes a full and complete general assignment, conveyance, and transfer of all of the Assets and the Pre-Petition Contracts or a bill of sale transferring good and marketable title in such Assets and the Pre-Petition Contracts to the Purchaser pursuant to the terms of the Purchase Agreement. 37. Upon the Closing of the Sale, each of the Debtors' creditors is authorized and directed to execute such documents and take all other such actions as may be necessary to release their respective Interests against the Assets, if any, as such Interest may have been recorded or may otherwise exist. 38. Each and every federal, state, and governmental agency or department, and any other person or entity, is hereby directed to accept any and all documents and instruments 21
Case:12-10410-swd Doc #:454 Filed: 02/08/13 Page 22 of 25 necessary and appropriate to consummate the transactions contemplated by the Purchase Agreement. 39. All entities which are currently, or as of the Closing of the Sale may be, in possession of some or all of the Assets to be sold, transferred, or conveyed pursuant to the Purchase Agreement are hereby directed to surrender possession of the Assets to the Purchaser upon the Closing of the Sale. 40. All persons holding claims against any of the Debtors or the Interests in any of the Assets of any kind or nature whatsoever shall be, and hereby are, forever barred, estopped, and permanently enjoined from asserting, prosecuting, or otherwise pursuing such claims or Interests of any kind or nature whatsoever against the Purchaser, its property, successors and assets with respect to any claim or Interest of any kind or nature whatsoever which such person or entity had, has, or may have against or in the Debtors, their estates, their managers or members, or the Assets, including, without limitation, the following actions: (i) commencing or continuing in any manner any action or other proceeding against the Purchaser, its successors, assets, or properties; (ii) enforcing, attaching, collecting, or recovering in any manner any judgment, award, decree, or order against the Purchaser, its successors, assets, or properties; (iii) creating, perfecting, or enforcing any lien or other encumbrance against the Purchaser, their successors, assets, or properties; (iv) asserting any setoff, right of subrogation, or recoupment of any kind against any obligation due the Purchaser or their successors; (v) commencing or continuing any action, in any manner or place, that does not comply or is inconsistent with the provisions of this Order or other orders of the Court, or the agreements or actions contemplated or taken in respect thereof; (vi) asserting that the Purchaser is a successor of the Debtors or has liability under any theory of successor liability for any Interest against or in Assets of the Debtors; or (vi) revoking, 22
Case:12-10410-swd Doc #:454 Filed: 02/08/13 Page 23 of 25 terminating, or failing or refusing to renew any license, permit, or authorization to operate any of the Assets of the Debtors or conduct any of the businesses operated by the Assets of the Debtors. Following the Closing of the Sale, no holder of a claim against any of the Debtors or an Interest in and of the Assets shall interfere with the Purchaser's title to or use and enjoyment of the Assets based on or related to such claim or Interest, or any actions that the Debtors may take, or have taken, in their chapter 11 cases. 41. The transactions contemplated by the Purchase Agreement are undertaken by the Purchaser in good faith, as that term is used in section 363(m) of the Bankruptcy Code, and accordingly, the reversal or modification on appeal of the authorization provided herein to consummate the sale of the Assets shall not affect the validity of the Sale to the Purchaser, unless such authorization is duly stayed pending such appeal. The Purchaser is a purchaser in good faith of the Assets, and is entitled to all of the protections afforded by 11 U.S.C. 363(m). 42. The consideration provided by the Purchaser for the Assets under the Purchase Agreement is fair and reasonable and the Sale may not be avoided under 11 U.S.C. 363(n). 43. The terms and provisions of the Purchase Agreement and this Order shall be binding in all respects upon, and shall inure to the benefit of, the Debtors, their estates, their creditors, and their stakeholders, the Purchaser, and their respective affiliates, successors, and assigns, and any affected third parties, including, but not limited to, all persons asserting an Interest against or in the Assets to be sold to the Purchaser pursuant to the Purchase Agreement, notwithstanding any subsequent appointment of any trustee or other fiduciary under any section of any chapter of the Bankruptcy Code, as to which trustee or other fiduciary such terms and provisions likewise shall be binding. 44. To the extent permitted by section 525 of the Bankruptcy Code, no governmental 23
Case:12-10410-swd Doc #:454 Filed: 02/08/13 Page 24 of 25 unit may revoke or suspend any permit or license relating to the operation of the Assets sold, transferred, or conveyed to the Purchaser on account of the filing or pendency of these chapter 11 cases or the consummation of the Sale. 45. No bulk sales law or any similar law of any state or other jurisdiction applies in any way to the Sale. 46. The failure specifically to include or to reference any particular provision of the Purchase Agreement in this Order shall not diminish or impair the effectiveness of such provision, it being the intent of the Court that the Purchase Agreement be authorized and approved in its entirety. 47. The provisions of this Order are non-severable and mutually dependent. 48. Notwithstanding the possible applicability of Bankruptcy Rules 6004(h), 7062, 9014, or otherwise, the terms and conditions of this Order shall be immediately effective and enforceable upon its entry. 49. This Court retains exclusive jurisdiction to interpret, construe, enforce and implement the terms and provisions of this Order, the Purchase Agreement, all amendments thereto, any waivers and consents thereunder, and of each of the agreements executed in connection therewith in all respects, including, but not limited to, retaining jurisdiction to (i) compel delivery of the Assets to the Purchaser, (ii) compel delivery of the Purchase Price or performance of other obligations owed to the Debtors pursuant to the Purchase Agreement, (iii) resolve any disputes arising under or related to the Purchase Agreement, except as otherwise provided therein, (iv) interpret, implement, and enforce the provisions of this Order, (v) protect the Purchaser against any Interests against or in the Debtors or the Assets, of any kind or nature whatsoever, attaching to the proceeds of the Sale, and (vi) determine all disputes among the 24
Case:12-10410-swd Doc #:454 Filed: 02/08/13 Page 25 of 25 Debtors, the Purchaser, and any non-debtor parties to any Pre-Petition Contracts concerning, inter alia, the Debtors' assumption and/or assignment of any Pre-Petition Contract to the Purchaser under the Purchase Agreement. 50. The findings and conclusions set forth herein constitute the Court's findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052, made applicable to this proceeding pursuant to Bankruptcy Rule 9014. All findings of fact and conclusions of law announced by the Court at the Sale Hearing in relation to the Sale Motion are hereby incorporated herein to the extent not inconsistent herewith. To the extent that any such findings of fact constitute conclusions of law, they are adopted as such. To the extent any of the following conclusions of law constitute findings of fact, they are adopted as such. Hon. Scott W. Dales 5695895_8 IT IS SO ORDERED. Dated February 8, 2013 25