NCG060078_COMPLETE FILE - HISTORICAL_20160912

STORMWATER DIVISION CODING SHEET
RESCISSIONS
PERMIT NO.
DOC TYPE
0 COMPLETE FILE -HISTORICAL
DATE OF
RESCISSION
❑ U`-��� D / ��
YYYYMMDD

MC-6-0� 00 1
r,
( � Vertellus-
September 12, 2016
NC DENR
Division of Energy, Mineral, and Land Resources
Land Quality Section / Storinwater Permitting
National Pollutant Discharge Elimination System
RE: Notice of Acquisition of Greensboro Operation of
Vertellus Performance Materials Inc.
On May 31, 2016, Vertellus Performance Materials Inc and certain of its affiliates filed voluntary
petitions for relief under chapter I I of title 11 of the United States Code with the United States
Bankruptcy Court for the District of Delaware, captioned In re Vertellus Specialties Inc., etal,
Case No. 16-1 1290 (Bankr. D. Del.)
Pursuant to an order entered by the Bankruptcy Court on or around September 7, 2016 Vertellus
LLC will acquire the real property and manufacturing assets located at the Vertellus
Performance Materials site located at 2110 W. Gate City Blvd. Greensboro, NC 27403.
Enclosed is the Permit Name/Ownership Change Form submitted to effectuate the transfer of
Vertellus Performance Materials Inc. to Vertellus LLC .
Please contact Michelle Kareis at [phone] should you have any questions.
RECEIVED
Benjamin D. Stewart 19 2016
Site Director
DENR-LAND QUALITY
Vertellus Perfonmance Materials Inc. STORMWATER PERMITTING
Cc: Peter Schneider, City of Greensboro Stonnwater Management
J. Jones, Vertellus Specialties Inc.
file
Vertellus Performance (Materials Inc.
2110 W. Gate City Blvd,
Greensboro, NC 27403
Phone. [phone] Fax. [phone] www.vertellus.com

Division of Energy, Mineral & Land Resources
Land Quality Section/Stormwater Permitting
National Pollutant Discharge Elimination System
NCDENR
G ."�` `� 0, PERMIT NAME/OWNERSHIP CHANGE FORM
CnwNo••.•ci...«n Navns.. Itconcr�
FOR AGENCY USE ONLY
Date Received
Year
h1onth
Da
Please enter the permit number for which the change is requested.
NPDES Permit (or) Certificate of Coverage
N 10 1 5 10
II. Permit status prior to requested change. ;7 +
a. Permit issued to (company name): VeyIe I r e Jortys-artr c I` lCti�,r��-�� �,/!�•
b. Person legally responsible for permit:
First Ml Last
Title
Permit Holder Mailing Address
rL�►L5�3or� bVl_ -2-77_g33
City State Zip
Phone Fax
c. Facility naive (discharge):
d. Facility address: 7—AL a W , Ga,tt G -mi
Address
6reeUL. -Z71 2z)
City State Zip
e. Facility contact person: �-ik t L'e kt_ , a f i S (�Y") �3 -�f qz�3
First / MI / Last Phone
111. Please provide the following for the requested change (revised permit).
a. Request for change is a result of: Change in ownership of the facility
Name change of the facility or owner
If olher please explain:
b. Permit issued to (company name):
V
� L L G
c. Person legally responsible for permit:
fkn ;a"Fn
_D S 1e, ,Y.�F-
firCst
Mt Last
RECEIVED
Title
([�+ �} �j�y, ,
SEP 19 LU ll�
-7,1( o to- Ga ce C,±- �1 vet
Address
Permit
Holder Mailing
DElVR-LAND QUALITY
-- C�re.ensb era
N(.._ -7l 7 V �3
STORMWATER l ERh1177 lt��;
city
3 3(v) 2-9 z —1
state zip
7 f7 4A ka re i c Vi r 1-e
Phone
E-mail Address
d. Facility name (discharge):
_ Ver kel l os LL C
e. Facility address:
�-� �C2 0.
6a _ca:, 1} Vnj
Address
reen 5 ,a- p
tU L Z `I y v 1
City
State Zip
f. Facility contact person:
-
First
Ml Last
{33�) g314-15u
►'Yl KriiStD 11eI'l tlua.c yL—
Phone
E-mail Address
IV. Permit contact information (if different from the person legally responsible for the permit)
Revised Jan. 27, 2014

NPDES PERMIT NAME/OWNERSHIP CHANGE FORM
Page 2 of 2
Per -nit contact: M j Ltte 11f K(7 m)
First MI Last
,Title
k- Cr L, �W/
ailing Add ess
G,-eekqs �o tiC, 2.-7 y03
City _ State Zip
(3 V-1-dQ3 4V Kaie,s
Phone E-mail Address
V.
Will the permitted facility continue to conduct the same industrial activities conducted prior
to this ownership or name change?.
Yes
❑ No (please explain)
VI Required Items: THIS APPLICATION WILL BE RETUFUNED UNPROCESSED IF ITEMS
ARE INCONIPLETE OR MISSING:
This completed application is required for both name change and/or ownership change
requests.
Legal documentation of the transfer of ownership (such as relevant pages of a contract deed,
or a bill of sale) is required for an ownership change request. Articles of incorporation are
not sufficient for an ownership change.
The certifications below must be completed and signed by both the permit holder prior to the change, and
the new applicant in the case of an ownership change request. For a name change request, the signed
Applicant's Certification is sufficient.
PERM ("17EE CERTIFICATION (Pennit holder prior to ownership change):
I,attest that this application for a name/ownership change has been reviewed and is accurate and
complete to the best of my knowledge. I understand that if all required parts of this application are not
completed and that ifall required supporting information is not included, this application package will be
Z
incomplete.
q�glZCD
Signature Date
APPLICANT CERTIFICATION
I, attest that this application for a name/ownership change has been reviewed and is accurate and
complete to the best of my knowledge. I understand that if all required parts of this application are not
completed and that if all required supporting information is not included, this application package will be
retu ied as incomplete.
Signature Date
PLEASE SEND THE CO,NIPLETE APPLICATION PACKAGE "r0:
Division of Energy, Mineral and Land Resources
Stornwater Permitting Program
1612 Mail Service Center
Raleigh, North Carolina 27699-1612
Revised Jan. 27, 2014

Case 16-11290-CSS Doc— "'""'" ` poci et +e0392 Date Filed09108/2016
US THE UNITED SfATES BANKRUP'CCY COURT
FOR THE DISTRICT OF DELAWARE
In re: : Chapter I 1
Vertellus Specialties Inc., er a1.,1 : Case No. 16-11290 (CSS)
Debtors. (Jointly Administered)
x Related Dkf Nos. 16, 169, 172, 182, 292, 302, 304
---- ---------------- ------------------------- ----- 344, 349 and 388
ORDER (A) APPROVING AND AUTHORIZING SALE OFSUBSTANTIALLY
ALL OF DEBTORS' ASSETS PURSUANT TO PURCHASER'S
ASSET PURCHASE AGREEMENT, FREE AND CLEAR OF ALI, LIENS,
CLAIMS, ENCUMBRANCES AND OTHER INTERESTS, (B) APPROVING
THE ASSUMPTION AND ASSIGNMENT OF CERTAIN EXECUTORY
CONTRACTS AND UNEXPIRED LEASES RELATED THERETO,
AND (C) GRANTING_ RELATED -RELIEF'
This maser is before the Court on the motion (the "Motion")'-- of the above -captioned
debtors (the "Debtors") for the entry of an order pursuant to sections I05(a), 363 and 365 of title
1 I of the United States Code (the "Bankruptcy Code"), Rules 2002, 6004, 6006, 9007 and 9014
of the Federal Rules of Bankruptcy Procedure (ns amended from lime to time, the "Bankruptcy
Rules"), and Rules 2002-1 and 6004-1 of the Local Rules of Bankruptcy Practice and Procedure
of the Bankruptcy Court for the District of Delaware (the "Local Rules") (a) authorizing the sale
of the Purchased Assets free and clear of liens, claims, encumbrances, and other interests, except
as provided by the Asset Purchase Agreement to Valencia Bidco LLC (the "Purchaser
' The Debtors in these chapter 11 taus, along with the Iasi four d'egits of each Debtor's federal tax identification
number, are: Vertellus Specialties Holdings Corp. (9569); Vertellus Specialties Inc. (7240); Vertellus
Agriculture & Nutrition Specialties 1.t.0 (5687); Tibbs Avenue Company (9642); Vcrteltus Specialties PA LLC
(0900); Vertellus Health & Specialty Products LLC (6325); Venenus Specialties MI LLC (0398); Vertellus
Performance Materials Inc. (7461); Rutherford Chemicals 1.LC (8878); Solar Aluminum Tcchnnlogv Servtccs
(drbla S.A.L S) (3632); and MRM Toluic Compauy, lac. (0544). The mailing address of each of the Debtors,
solely for purposes of notices and communications, is 201 N. Illinois Street, Suite 1800, Indianapolis, IN 46704_
Capitalized terms used but not otherwise defmrd herein shall have the meanings ascribed to them in the Motion.
EAS"nt 279529256 II 111111111111111111111111111111111111111111111111
161129DI609080OW00000004
Case 16-11290-CSS DoC 392 Filed 09/08/16 Page 2 of 33
upproving the assumption and assignment of certain of the Debtors' executory contracts and
unexpired leases related thereto; and (c) granting related relief; and the Court having heard
Statements of counsel and the evidence presented in support of the relief requested by the
Debtors in the Sale Motion at a hearing before the Court on September 7, 2016 (the "Sale
Hearing"); and it appearing that the Coun has jurisdiction over this marter; and it further
appearing that the legal and factual bases set forth in the Sale Motion and at the Sale Hearing
establishjusl cause for the relief granted herein; and after due deliberation thereon,
THE COURT IIFRF,BY FINIS AND DETERMINES THAT:
I. Jurisdiction, Final Order and Statutory Predicates
A. The Court has jurisdiction to hear and determine the Sale Motion pursuant to 28
U.S.C. §§ 157(b)(1) and 1334(a) and the Amended Standing Order of Reference from the United
States District Court for the District of Delaware dated as of Februay 29, 2012. This is a care
proceeding pursuant to 28 U.S.C. § I57(bx2XA), (N) and (0). Venue is proper in this District
and in the Court pursuant to 28 U.S.C. §§ 1408 and 1409.
R. This order constitutes a final and appealable order within the meaning of 28
U.S.C. § 158(a). Notwithstanding Bankruptcy Rules 6004(h) and 6006(d), and to any extent
necessary under Bankruptcy Rule 9014 and Rule 54(b) of the Federal Rules of Civil Procedure,
as made applicable by Bankruptcy Rule 7054, the Court expressly finds that there is no just
reason for delay in the implementation of this order, and expressly directs entry of judgment as
set forth herein.
C. The statutory predicates for the relief requested in the Sale Motion are sections
105(a), 363(b), (f), and (m), and 365 of the Bankruptcy Code and Bankruptcy Rules 2002(a)(2),
6004(a), (b), (c), (c), (f) and (h), 6006(a), (c) and (d), 9007 and 9014.
E/ST12_195'-825.6
2-

Case 16-11290-CSS Doc 392 Filed 09/08/16 Page 3 ai 33
D. The Court entered the Bidding Procedures Order on June 29, 2016 [Dkt. No. 169].
E. The findings of fact and conclusions of law set forth herein constitute the Courts
findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052, made applicable to
this proceeding pursuant to Bankruptcy Rule 9014.
F. To the extent any of the following findings of fact constitute conclusions of law,
they are hereby adopted as such. To the extent any of the following conclusions of law
constitute findings of fact, they are hereby adopted as such. Any findings of fact or conclusions
of law stated by the Court on the record at the Sale Hearing are hereby incorporated, to the extent
they are not inconsistem herewith.
G. In the absence of a stay pending appeal, the Purchaser, being a good faith
purchaser under section 363(m) of the Bankruptcy Code, may close the transaction contemplated
by the Final APA (as defined herein) at any time after entry of this Sale Order, and cause has
been shown as to why this Sale Order should not be subject to the stay provided by Bankruptcy
Rules 6004(h) and 6006(d).
IL Notice or the Sale, Auction and the Cure Amounts
A. In compliance with the Bidding Procedures Order, actual written notice of the
Sale Motion, the Sale Hearing, the assumption and assignment of the Assumed Executory
Contracts (as defined below) and a reasonable opportunity to object or be heard with respect to
the Sale Marion and the relief requested therein have been afforded to all known interested
persons and entities, including, but not limited to the following parties (the " o i ce Panics'): (i)
the United States Trustee, (ii) counsel to the Commiuee; (iii) counsel to the DIP Agent; (iv)
i
counsel to the DIP Lenders; (v) counsel to the Prepetition Tenn Lenders; (vi) the Term Loan
Agent; (vii) the Securities and Exchange Commission; (yiii) all state and local taxing authorities
Case 16-11290-CSS Doc 392 Filed 09/08/16 Page 4 of 33
in the jurisdictions in which the Debtors have or may have any tax liability; (ix) the Internal
Revenue Service; (x) the United States Department of Justice; (xi) all persons or entities known
to the Debtors that have or have asserted a lien on, or security interest in, all or any portion of the
Purchased Assets; (xii) all non -Debtor panics to each Assumed Executory Contract (each a
"Contract �7,ounlerpnq)" ); (xiii) the Pension Benefit Guaranty Corporation; (xiv) the
Environmental Protection Agency and any state environmental agencies in states in which the
Debtors have environmental liabilities; (xv) all potential bidders previously identified or
otherwise known to the Debtors; and (xvi) all parties that have requested special notice pursuant
to Bankruptcy Rule 2002.
B. In accordance with the provisions of the Bidding Procedures Order, the Debtors
have served the Cure Notice or Supplemental Cure Notice [D.I. 192, 302 & 3361, as applicable,
upon the Contract Counterparties: (i) that the Debtors seek to assume and assign to the Purchaser
certain executory contracts and unexpired icases (the "Assumed Executo 'ontracts") on
September 30, 2016 (or such other date on which the transactions contemplated by the
Purchaser's Asset Purchase Agreement are consummated, the "Closing Date"); and (ii) of the
proposed Cure Amounts, if any, for such Assumed Executory Contracts. Pursuant to Fed. R.
Bankt. P. 6006(c), the Court finds that the service of such Cure Notice or Supplemental Cure
Notice was good, suflicient and appropriate under the circumstances, in compliance with the
Bidding Procedures Order, and no fi rher notice need be given in respect of establishing the
Cure Amount for the Assurned Executory Contracts. The Contract Counterparties have had an
Opportunity to object to the Cure Amounts set forth in the Cure Notice or Supplemental Cure
Notice, as applicable.
rfsn427952925.6 3 I r-.+snr279M75t,
4-

Case 16-11290-CSS Doc 392 Filed 09l08116 Page 5 of 33
C. As evidenced by the altidavits of service previously filed with the Court, proper,
timely, adequate, and sufficient notice of the Sale Motion, Auction, Sale I[caring, and Sale has
been provided in accordance with sections 102(l), 363 and 365 of the Bankruptcy Code and
Bankruptcy Rules 2002, 6004, 6006 and 9014. The Debtors also have complied with all
obligations to provide notice of the Auction, the Sale Hearing, and the Sale required by the
Bidding Procedures Order. The notices described in paragraphs LA to LG herein were good,
sufficient and appropriate under the circumstances, and no other or further notice of the Sale
Motion, Auction, Sale Hearing, Sale, or assumption and assignment of the Assumed Executory
Contracts is required.
D. The Debtors have articulated good and sufficient reasons for the Bankruptcy
Court to grant the relief requested in the Motion regarding the Sale.
E. The Procedures Notice served by the Debtors on the Notice Parties provided all
interested parties with timely and proper notice of the Sale, Sale Hearing and Auction.
F. The Cure Notice and Supplemental Cure Notice prodded Purchaser and the
Contract Counterparties with proper notice of the potential assumption and assignment of the
Assumed Executory Contracts and any cure amount relating thereto, and the procedures set forth
in the Did Procedures Order with regard to any such cure amount to su6s6- section W of the
Bankruptcy Code and Bankruptcy Rule 6006.
G. The disclosures made by the Debtors concerning the Sale Motion, the Asset
Purchase Agreement of the Purchaser, the Auction, the Sale, and the Sale Hearing were good,
complete and adequate.
Case 16-11290-CSS Doc 392 Filed 0910a116 Page 6 of 33
Ill. Good Faith of the Purchaser
A. The Purchaser is not an "insider" of the Debtors, as that term is defined in section
101(31) of the Bankruptcy Code.
B. The Purchaser is purchasing the Purchased Assets in good faith and is a good faith
buyer within the meaning of section 363(m) of the Bankruptcy Code and is, therefore, entitled to
the full protection of section 363(m) of the Bankruptcy Code, and otherwise has proceeded in
good faith in all respects in connection with these cases in that, infer alia: (a) the Purchaser
recognized that the Debtors were free to deal with any other pang interested in acquiring any or
all of the Purchased Assets; (b) the Purchaser complied with the provisions in the Bidding
Procedures Order; (c) the Purchaser agreed to subject its bid to the competitive bidding
procedures set forth in the Bidding Procedures Order; (d) the Purchaser in no gray induced or
caused the chapter 1 I tiling by any of the Debtors; (e) all payments to be made by the Purchaser
and other agreements or arrangements entered into by the Purchaser in connection with the Sale
have been disclosed; (1) the Purchaser has not violated section 363(n) of the Bankruptcy Code by
any action or inaction; (g) no common identity of directors or controlling stockholders exists
between the Purchaser and any of the Debtors; and (b) the negotiation and execution of the final
purchase agreement (together with any schedules, exhibits and any other documents or
instruments related thereto, the "Final APA," a copy of which is attached hereto as Exhibit A, as
modified, amended or supplemented from time to time) and any other agreements or instruments
related therein were at arms' length and in good faith.
F.ASIU779524:5 6 5 1 EAsr 12?"2825 a
6-

Case 16-11290-CSS Doc 392 Filed 09/08/16 Page 7 of 33
IV. Highest or Best Offer
A. Prior to selecting the Purchaser as the successful bidder, the Debtors solicited
offers to acquire the Purchased Assets from a wide variety of parries. In doing so, the Debtors
afforded potential bidders confidential due diligence aceess to provide any such bidders an
opportunity to submit a Qualified Bid. Notwithstanding the marketing process undertaken by the
Debtors and their advisors, no Qualified Bid (as defined in the Bidding Procedures Order), other
Um the Purchaser's bid, was submined by the Bid Deadline, and accordingly, on August 29,
2016, the Debtors filed the Noure of.4uccessful Bidder and Cancellation ofAueSnn [Dkt. No.
349).
B, The Bid Procedures were designed to obtain the highest value for the Purchased
Assets for the Debtors and their estates, and the Final APA constitutes the highest or best offer
for the Purchased Assets, The Debtors' determination, in consultation with the Consultation
Parties, that the Final APA constitutes the highest or best offer for the Purchased Assets was a
reasonable, valid and sound exercise of the Debtors' business judgment.
C. The Final APA represents a fair and reasonable offer to purchase the Purchased
Assets under the circumstances of these chapter 11 cases. No other person or entity or group of
entities has offered to purchase the Purchased Assets, let alone for greater economic value or
otherwise better terms to the Debtors' estates than the Purchaser.
D. Approval of the Sale Motion and the Final APA and each of its exhibits, and the
consummation of the transactions contemplated thereby is in the best interests of the Debtors,
their creditors, their estates and other parties in interest.
Case 16-11290-CSS Doc 392 Filed 09/08/16 Page 8 of 33
L-. The Debtors have demonstrated compelling circumstances and a good, sufficient,
and sound business purpose and justification for the Sale prior to, and outside of, a plan of
reorganization.
V. No Fraudulent Transfer
A. The consideration provided by the Purchaser for the Purchased Assets, Assumed
Executory Contracts and Assumed Liabilities pursuant to the Final APA is fair and adequate and
constitutes reasonably equivalent value and fair consideration under the Bankruptcy Code and
under the laws of the United States, any state, territory, possession, or the District of Columbia.
V 1. Method of Effecting the Sale
A. In order to credit bid the claims of the Prepetition'rerm Lenders as set forth in the.
Final APA, and upon the prior written direction to the Prepetition Term Agent by the Prepetition
Term Lenders holding the requisite amount of Prepetition Term Facility Obligations, the
Prepetition Term Lenders shall be permitted to utilize one or more designees, agents or suh-
agents (in each case, a `Designee") to take assignment of (i) the rights of the Prepetition Term
Lenders under the Bankruptcy Code, the DIP Omer and the Final APA to credit bid the
Prepetition Term Facility Obligations, and (ii) any equity issued by the Purchaser and any loans
issued by the Purchaser (collectively, the' _Desi�maied Rights"). In exchange for the Designated
Rights, the Designee shall be obligated to designate or transfer to the Purchaser and/or its
subsidiaries the Purchased Assets. The Designee is further permitted to distribute, on behalf of
Purchaser, the Designated Rights to the Prepetition 'Perm Lenders in respect of the Prepetition
Tenn Facility Obligations under the Term Loan Agreement.
B. In connection with the disposition of proceeds to be provided to the Prepetition
Temi Lenders under the Final APA, Prepetition Term Lenders shall receive certain second lien
EASTU27952V56 7 I EMm2795292se
- 8 -

Case 16-11290-CSS Doc 392 Filed 09/08/16 Page 9 of 33
loans issued by the Purchaser and shall be deemed for all purposes to be (i) signatories to, and
"Lenders" under, that certain Second Lien Credit Agreement executed by Purchaser (the
"Second Lien Credit Agreement") with all of the rights and obligations of a signatory thereunder
and (ii) signatories to such other agreements the Purchaser deems necessary in its reasonable
discretion to execute to complete the transactions set forth herein and in the Final APA. In
addition, in connection with the disposition of proceeds to he provided to the Prepetition Term
Lenders under the Final APA, Prepetltion Tent Lenders may elect to receive and retain, on a
ratable basis, an initial distribution of equity issued by the Purchaser (or the Designee) (such
equity being referred to herein as "Purchaser Equity'"). Prepetition Term Lenders who elect to
receive Purchaser Equity shah be deemed for all purpuscs to be signatories to, and "Members"
trader, the operating agreement of the Purchaser and any agreement among ".Members" or unit
holders of the Purchaser, in each case, with all of the rights and obligations of a signatory
thereunder. Any Prepetition Term Lender may decline to accept its ratable allocation of the
Purchaser Equity (any such declining Prepetition Term Lender being referred to herein as a
"Declining Prepetition Term Lender') by providing µriven notice thereof to the Purchaser (such
notice, an "Equity Rejection Notice") no more than thirty (30) days after the Closing Date, and in
such event such Declining Prepetition Term Lender's interest in the Purchaser Equity shall be
held by the Purchaser in trust pursuant to the terms hereof and the Purchaser's operating
agreement for the benefit of such Declining Prepetition Term Lender.
C. Should any Prepetition Term Lender be unwilling or unable to receive its ratable
share of the Purchaser Equity, or should any Prepetition Term Lender provide an Equity
Rejection Notice to the Purchaser in accordance with Paragraph B herein, then pursuant to the
operating agreement of the Purchaser, the Purchaser shall hold such Purchaser Equity in trust for
Case 16-11290-CSS Doc 392 Filed 09/08/16 Page 10 of 33
The benefit of the Declining Prepetition Term Lenders, and such Purchaser Equity shall he
deemed for all purposes to vote with the plurality of equity interests voting on any issue
presented to the holders of the Purchaser Equity for decision. Upon liquidation of all Purchaser
Equity to cash, the Declining Prepetition Tent Lenders shall receive their ratable share of such
cash as proceeds. Neither the Purchaser not the holders of Purchaser Equity shall have any
obligation, responsibility or duty to the Declining Prepetition Term Lenders in respect of the
Purchaser Equity, other than to deliver the ratable strafe of any resulting cash proceeds (less
recovery by the Purchaser of such Declining Prepetition Term Lenders' ratable share of
unreinrhursed reasonable administrative costs of holding such proceeds in trust) of the Purchaser
Equity to the Declining Prepetition Term Lenders or their successors or assigns, if, as and when
received. Immediately upon the transfer of the Purchased Assets to the Purchaser and/or one or
more of its subsidiaries, the Prepetition Term Agent shall have no further obligations to
distribute proceeds to, or otherwise transact with, the Prepetition Term Lenders in respect of the
Prepetition Term Facility Obligations, and the Prepetition Term Agent and all of its affiliates,
directors, officers, employees, attorneys, consultants and agents (collectively, the -9ndemnifted
Persons") shalt be (i) released and discharged from all claims that may be brought by the
Prepetition Term lenders and (ii) indemnified and held harmless by the Prepetition Term
Lenders from and against, without limitation, any and all losses, liabilities, judgments, claims,
causes of action, costs, and expenses (including reasonable fees and disbursements of legal
counsel) incurred or suffered by any Indemnified Person in any way, in each case of (i) and (ii)
above, directly or indirectly, arising out of, related to, or connected with the Prepetition Term
Loan and the DIP loan; provided that the foregoing release and indemnity shall not be
applicable to any losses suffered or incurred by an Indemnified Person as a result of such
g_ -lo-
r-.tsnv»sz[zs 6 ras11127952k25 6

Case 16-11290-CSS Doc 392 Fired 09/08/16 Page ll of 33
Indemnified Person's gross negligence or willful misconduct as determined by a judgment of a
court that is binding upon such Indemnified Person, final, and not subject to review on appeal.
D. For U.S. federal income lax purposes, the parties intend that the transactions
contemplated by the Final APA be treated as a taxable transfer of the assets described in the
Final APA (subject to any liabilities expressly being assumed thereunder) to the Prepetition
Lenders in satisfaction of the portion of the Prepctilion Term Loans being transferred pursuant to
the Final APA, and for such other consideration as is provided for in the Final APA, followed by
a transfer of such assets to the Purchaser in exchange for the Purchaser equity and new second
lien loans.
F. The procedures set forth in this Section VI are collectively referred to as the
"Credit Bid Steps".
VII. Validity- of Transfer
A. The Debtors have full corporate power and authority to execute and deliver the
Final APA and all other documents contemplated thereby, and no further Consents or approvals
are required for the Debtors to consummate the transactions contemplated by the Final APA,
except as otherwise set forth in the Final APA.
B. The transfer of each of the Purchased Assets to the Purchaser giving effect to the
Credit Bid Steps will be, as of the Closing Date, a legal, valid, and effective transfer of the
Debtors' interest in such asset, and vests or will vest the Purchaser with all right, title, and
interest of the Debtors to the Purchased Assets free and clear of all Encumbrances (as defined
below in Paragraph 7) accruing, arising or relating to any time prior to the Closing Date, except
for any Permined Encumbrances and Assumed Liabilities (collectively, the "Assumed
abilities") under the Final APA, with all Encumbrances attaching to the net cash proceeds of
Case 16-11290-CSS Doc 392 Filed 09108/16 Page 12 of 33
the Sale, if any, attributable to the Purchased Assets in which such holder alleges an
Encumbrance, in the same order of priority, with the same validity, force and effect that such
Encumbrance had prior to the Sale, subject to any claims and defenses the Debtors and their
estates may possess with respect thereto.
C. The Purchaser shall be afforded all exemptions from recording and/or transfer
taxes dial. apply to the recordation of grant deeds conveying title to teat properly and
improvements transferred to Purchaser under the Final APA as Purchased Assets so as to permit
such recording to occur free of any such taxes.
Vil 1. Section 363(f) Is Satisfied
A. The Purchaser would not have entered into the Final APA and would not
consummate the transactions contemplated thereby and by the Credit Bid Steps (by paying the
Purchase Price and assuming the Assumed Liabilities) if the sale of the Purchased Assets to the
Purchaser, and the assumption and assi6mment of the Assumed Executory Contracts to the
Purchaser in each case pursuant to the Credit Bid Steps, were not, except as otherwise provided
in the Final APA with respect to the Assumed liabilities, free and clear of all Encumbrances of
any kind or nature whatsoever, or if the Purchaser would, or in the future could (except and only
to the extent expressly provided in the Final APA and with respect to the Assumed Liabilities),
be liable for any of such Encumbrances, including, but not limited to the following: (1) all
mortgages, deeds of trust and security interests (including, without limitation, those identified on
Exhibit B hereto); (2) any pension, welfare, compensation or other employee benefit plans,
agreements, practices and programs, including, without limitation, any pension plan of any
Debtor; (3) any other labor or employment, worker's compensation, occupational disease or
unemployment or temporary disability related claim, including, without limitation, claims that
I I - 12-
E.csni2rgs2B2s.a eAsn127952825a

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might otherwise arise under or pursuant to any of the following, as they may be amended from
time to time (a) the Employee Retirement Income Security Act of 1974, as amended, (b) the Fair
Labor Standards Act, (c) Title VII of the Civil Rights Act of 1964, (d) the Federal Rehabilitation
Act of 1973, (e) the National Labor Relations Act, (f) the Worker Adjustment and Retraining
Notification Act of 1988, (g) the Age Discrimination In Employment Act of 1967 (including
Older Workers Benefit Protection Act), (h) the Americans with Disabilities Act of 1990
(including the ADA Amendments Act of 2008), (i) the Consolidated Omnibus Budget
Reconciliation Act of 1985, 6) state discrimination laws, (k) state unemployment compensation
laws or any other similar state laws, or (1) any other state or federal labor or employment or
benefit claims relating to any employment with any of the Debtors or any of their respective
predecessors; (4) any bulk sales or similar law; (5) any tax statutes or ordinances, including,
without limitation, the Internal Revenue Code of 1986, as amended; (6) any Environmental
Law(s) (as defined in the Final APA), including, without limitation, any environmental liens or
claims arising out of, or related to, the reports referenced in the Final APA Schedule 4.19; and
(7) any theories of transferee or successor liability, to the extent allowed by applicable law,
except as otherwise set forth in this Order,
B. To the extent allowed by applicable law, except as otherwise set forth in this
Order, the Purchaser (i) is not, and shall not be considered, a successor to the Debtors, (ii) has
nor, de facia or otherwise, merged with or into the Debtors, (iii) is not a continuation or
substantial continuation of any of the Debtors or their respective estates, businesses or
operations, or any enterprise of the Debtors, and (iv) does not have a common identity of
incorporators, directors or equity holders with the Debtors.
1
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C. The Debtors may sell the Purchased Assets free and clear of all Encumbrances
(except for the Assumed liabilities) because, in each case, one or more of the standards set forth
in section 363(f)(i)-(5) of the Bankruptcy Code has been satisfied. Those holders of
Encumbrances, who did not object, or who withdrew their objections, to the Sale or the Sale
Motion are deemed to have consented pursuant to section 363(f)(2) of the 3ankruplcy Code.
Those holders of the Encumbrances, who did object fall within one or more of the other
subsections of section 363(f) and are adequately protected by having their Encumbrances, if any,
attach to the net cash proceeds of the Sale attributable to the Purchased Assets in which such
holder alleges an Encumbrance, in the same order of priority, with the same validity, force and
effect and subject to all of the Debtors' defenses -and counterclaims, that such Encumbrance had
prior to the Sale.
IN. Assumption and Assignment of the Executory Contracts
A. The assumption and assignment of the Assumed Executory Contracts pursuant to
the terms of this order is integral to the Final APA and represents the reasonable exercise of
sound and prudent business judgment by the Debtors.
B, Except as provided in this Order or as may be subsequently agreed upon by the
parties or determined by this Court, the amounts set forth on Fxhibit C annexed hereto are the
sole amounts necessary under sections 365(b)(1)(A) and (B) and 365(t)(2)(A) of the Bankruptcy
Code to cure all monetary defaults and pay all actual pecuniary losses under the Assumed
Executory Contracts (the "Cure Amounts").
C. Pursuant to the terms of the Final APA, the Purchaser will (i) cure and/or provide
adequate assurance of cure of any monetary default existing prior to the Closing Date under any
of the Assumed Executory Contracts, within the meaning of section 365(b)(1)(A) of the
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Bankruptcy Code; (ii) provide compensation or adequate assurance of compensation to each
Contract Counterparty for actual pecuniary loss to such party resulting from a default prior to the
Closing Date under any of the Assumed Executory Contracts, within the meaning of section
365(b)(1)(B) of the Bankruptcy Code; and (iii) provide adequate assurance of its future
performance under the Assumed Executory Contracts within the meaning of sections
365(b)(1)(C), 365(b)(3) (to the extent applicable) and 365(f)(2)(B) of the Bankruptcy Code.
X- Assumption of Dehtnr in Possessinn Financing
A. Purchaser constitutes a Permitted Successor Borrower under and as defined in the
DIP Credit Agreement executed and delivered pursuant to the Final DIP Order and Purchaser is
entitled to assume as Borrower and certain Subsidiaries of Purchaser are entitled to assume the
Guaranty set forth in the DIP Credit Agreement as Guarantors.
B. Such assumption by the Purchaser and certain of its Subsidiaries shall constitute a
Permitted Borrower Succession under and as defined in the DIP Credit Agreement and shall
pursuant to the terms of the DIP Credit Agreement be binding on all DIP Lenders without need
for any action by any of the DIP Lenders,
C. Concurrently with such assumption, and giving effect thereto, Purchaser and those
subsidiaries that are assuming the DIP Credit Agreement, may together with Supennajority
Lenders under and as defined in the DIP Credit Agreement, amend and restate the DIP Credit
Agreement to, among other things: (i) extend the mattuity date of the DIP Facility to the eighteen
(1 h) month anniversary of the Closing Date; (ii) increase the commitments of certain DIP
Lenders that are willing to do on the same terms and conditions as the existing DIP Facility,
which loans made under such increased commitments shall be on terms rendering them to be
fully fungible with the existing DIP Facility, (iii) consent to the issuance of second lien loans
Case 16-11290-CSS Doc 392 Filed 09/08/16 Page 16 of 33
referred to in the Credit Bid Steps, and (iv) approve the execution and delivery by the DIP Agent
of a reasonable and customary "lien only" intercreditor agreement with the representative of the
lenders holding the new second lien loans. Any such amended and restated DIP Credit
Agreement shall, upon approval in writing by the Supermajority Lenders be valid, binding and
effective against all DIP lenders without need for any action by any DIP Lenders other than
Supennajority Lenders, and all DIP lenders shall be a party thereto for all purposes.
Notwithstanding anything to the contrary contained in this Order, the Debtors, their estates and
all property of the Debtors' estate shall be, upon Purchaser's assumption of the DIP Facility,
deemed, released, discharged and shall have no further obligation under the DIP Facility, and the
DIP Liens shall be deemed released and shall no longer attach to the Debtors' property or
proceeds of the Sale.
X1. Circumstances for an Immediate Sale
A. To enhance the Debtors' level of liquidity, to reduce the amount of postpetition
financing home by the Debtors, and to maximize the amount of funding available to provide for
a timely exit from these chapter I I cases, it is essential that the Sale of the Purchased Assets
occur within the time constraints set forth in the Final APA. Time is of the essence in
consummating the Sale.
B. Given all of the circumstances of these chapter I l cases and the adequacy and fair
value of the Purchase Price under the Final APA, the proposed Sale of the Purchased Assets to
the Purchaser constitutes a reasonable and sound exercise of the Debtors' business judgment and
should be approved,
C. The Sale does not constitute a de facio or sub rasa plan of reorganization or
liquidation because it does not propose to (i) impair or restructure existing debt of, or equity
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interests in, the Debtors, (ii) impair or circumvent voting rights with respect to any plan proposed
by the Debtors, (iii) circumvent chapter 11 safeguards, including those set forth in sections 1125
and 1 129 of the Bankruptcy Code, or (iv) classify claims or equity interests,
D, The consummation at' the Sale is legal, valid and properly authorized under all
applicable provisions of the Bankruptcy Code, including, without limiation, sections 105(a),
363(h), 363(f), 363(m), 365(b) and 365(0, and all of the applicable requirements of such sections
have been complied with in respect of the Sale.
NOW, THEREFORE, IT IS IIF:RF HY ORDERED, ADJDI)CED AND DECREED
THAT:
General Provisions
1. The relief requested in the Sale Motion is granted and approved, and the Sale
contemplated thereby and in the Final APA is approved as set forth in this Order.
2. The record of these cases, including the Court's findings of fact and conclusions
of law, set forth in the Bidding Procedures Order, are incorporated herein by reference and the
Court takes judicial notice of the record.
3. All objections to the Sale Motion or the relief requested therein that have not been
withdrawn, wgrved, or settled, as announced to the Court at the Sale hearing or by stipulation
filed with the Court, or not otherwise resolved by this Order, and all reservations of rights
included therein, are hereby overruled on the merits or have been otherwise satisfied or
adequately provided for.
Approval of the Final APA
3. The Final APA and all ancillary documents, and all of the terms and conditions
thereof, are hereby approved. The Credit Bid Steps and all of the terms and conditions thereof,
are hereby approved.
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5. Pursuant to section 363(h) of the Bankruptcy Code, the Debtors are authorized
and empowered to take any and all actions necessary or appropriate to (i) consummate the Sale
of the Purchased Assets to the Purchaser pursuant to and in accordance with the terms and
conditions of the Final APA, (ii) close the Sale as contemplated in the Final APA and this Order,
and (iii) execute and deliver, perform under, consummate, implement and close fully the Final
APA, _giving effect to the Credit Bid Steps, together with all additional instruments and
documents that may be reasonably necessary or desirable to implement the Final APA and the
Sale, or as may be reasonably necessary or appropriate to the performance of the obligations as
contemplated by the Final APA and such ancillary documents.
6. This Order shall be binding in all respects upon the Debtors, their estates, all
holders of equity interests in any Debtor, all holders of any Claim(s) (as defined in the
Bankruptcy Code) against any Debtor, whether known or unknown, any holders of Liens (as
defined in the Bankruptcy Code, and including, without limitation, all holders of recorded and
unrecorded Liens encumbering Purchased Assets consisting of real property or improvements, on
all or any portion of the Purchased Assets, all Contract Counterparties, the Purchaser and all
successors and assigns of the Purchaser, any other bidders for the Purchased Assets, any
trustees, if any, subsequently appointed in any of the Debtors' chapter I I cases or upon a
conversion to chapter 7 under the Bankruptcy Code of any of the Debtors' cases. This order and
the Final APA shall inure to the benefit of the Debtors, their estates, their creditors, the
Purchaser, and their respective successors and assigns.
Transfer of the Purchased Assets
T Pursuant to sections I05(a), 363(h), 363(t), 365(b) and 365(f) of the Bankruptcy
Code, the Debtors are authorized to transfer the Purchased Assets on the Closing Date. The
Purchased Assets (including the Assumed Executory Contracts) shall be transferred to the
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Purchaser upon and as of the Closing Date and such transfer shall constitute a legal, valid,
binding and effecti%e transfer of the Debtors' interest in such Purchased Assets and, upon the
Debtors' receipt of the Purchase Price, shall he free and clear of all Liens, Claims, interests,
rights of setoff (except setoff's exercised prior to the Petition Date), nerving and deductions, any
successor or successor -in -interest liability theory, to the extent, if any, allowed by applicable law
and except as otherwise set forth in this Order (collectively, the "Encumbrances"), except for the
Assumed Liabilities under the Final APA. Upon the Closing, the Purchaser shall take title to and
possession of the Purchased Assets subject only to the Assumed Liabilities; provided, however,
that the Purchaser shall not be relieved of liability with respect to the Assumed Liabilities,
including any obligations accruing under the Assumed Executory Contracts from and after the
Closing. All Encumbrances shall attach solely to the net proceeds of the Sale with the same
validity, priority, force and effect that they now have as against the Purchased Assets, subject to
any claims and defenses the rkbtors and their estates may possess with respect thereto.
8. The sale of the Purchased Assets to the Purchaser, and the assumption and
assignment of the Assumed Executory Contracts to the Purchaser, shall be, except as otherwise
provided in the Final APA with respect to the Assumed Liabilities or set forth in this Order, free
and clear of all Encumbrances of any kind or nature whatsoever, or if the Purchaser would, or in
the future could (except and only to the extent expressly provided in the Final APA and with
respect to the Assumed Liabilities), be liable for any of such Encumbrances, including, but not
limited to in respect of the following; (1) all mortgages, deeds of trust and security interests; (2)
any pension, welfare, compensation or other employee benefit plans, agreements, practices and
programs, including, without limitation, any pension plan of any Debtor, (3) any other labor or
employment, worker's compensation, occupational disease or unemployment or temporary
Case 16-11290-CSS Doc 392 Filed 09/08/16 Page 20 of 33
disability related claim, including, without limitation, claims that might otherwise arise, to the
extent allowed by applicable law or otherwise set forth in this Order, under or pursuant io any of
the following, as they may be amended from time to time: (a) the Employee Retirement Income
Security Act of 3974, (b) the Fair Labor Standards Act, (c) Title VEl of the Civil Rights Act of
1964, (d) the Federal Rehabilitation Act of 1973, (e) the National Labor Relations Act, (t) the
Worker Adjustment and Notification Retraining Act of 1988, (g) the Age Discrimination in
Employment Act of 1967 (including Older Workers Benefit Protection Act), (h) the Americans
with Disabilities Act of 1990 (including the ADA Amendments Act of 2008), (i) the
Consolidated Omnibus Budget Reconciliation Ad'of 1985, 1j) stale discrimination laws, (k) state
unemployment compensation laws or any other similar state laws, or (1) any other state or federal
labor or employment or henefit claims relating to any employment with any of the Debtors or
any of their respective predecessors; (4) any bulk sales or similar law; (5) any tax statutes or
ordinances. including, without limitation, the Internal Revenue Code of 1996, as amended; (6)
any Environmental Law(s) (as defined in the Final APA), including, without limitation, any
environmental liens or claims arising out of. or related to, the reports referenced in the Final
APA Schedule 4.19; and (7) any theories of transferee or successor liability, to the extent
allowed by applicable law, except as otherwise set forth in this Order. For avoidance of doubt,
except relating to the Debtors, their estates and all property of the Debtors' estate which shall be,
upon Purchaser's assumption of the DIP Facility, deemed released, discharged and shall have no
further obligation under the DIP Facility, and the DIP Liens shall be deemed released and shall
no longer attach to the Debtors' property and proceeds of the Sale, no Liens arising pursuant to
the Final DIP Order or the DIP Credit Agreement shall be disturbed by this Order or the
consummation of the sale of Purchased Assets and assignment of Assigned Executory Contracts
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Case 16-11290-CSS Doc 392 Filed 09/08/16 Page 21 of 33
pursuant to the Final APA and the Credit Bid Steps, and all such Liens securing the Loans made
to the Debtors pursuant to the Final DIP Order and the DIP Credit Agreement shall remain in full
force and effect as perfected first priority liens encumbering only all of the Purchased Assets and
Assigned Executory Contracts.
9. Except as expressly provided by the Final AAA with respect to the Assumed
Liabilities and Assumed Executory Contracts, all persons and entities holding Encumbrances on
all or any portion of the Purchased Assets, hereby are forever barred, estopped and permanently
enjoined from asserting against the Purchaser or its successors or assigns, their property or the
Purchased Assets, such persons' or entities' rights relating to any such Encumbrances. On the
Closing Date, each holder of an Encumbrance is authorized and directed to execute such
documents and take all other actions as may be deemed by the Purchaser to be necessary or
desiruble to release its Encumbrances on the Purchased Assets, as provided for herein, as such
Encumbrances may have been recorded or may otherwise exist.
10. 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 Purchased Assets and assign the Assumed Executory Contracts to the Purchaser in
accordance with the terms of the Final APA and this Order.
I I. All persons and entities that are in possession of some or all of the Purchased
Assets on the Closing Date are directed to surrender possession of such Purchased Assets to the
Purchaser or its assignee at the Closing.
12. A certified copy of this Order may be filed ,vith the appropriate clerk and/or
recorded with the appropriate recorder to cancel any Encumbrances of record.
Case 16-11290-CSS Doc 392 Filed 09/08/16 Page 22 of 33
13. If any person or entity which has tiled statements or other documents or
agreements evidencing Encumbrances on all or any portion of the Purchased Assets shall not
have delivered to the Debtors prior to the Closing, in proper form for filing and executed by the
appropriate parties, termination statements, instruments of satisfaction, releases of Liens and
easements, and any other documents necessary or desirdble to the Purchaser for the purpose of
documenting the release of all Encumbrances, which the person or entity has or may assert with
respect to all or any portion of the Purchased Assets, the Debtors are hereby authorized mid
directed, and the Purchaser is hereby authorized, to execute and file such statements,
instruments, releases and other documents on behalf of such person or entity with respect to the
Purchased Assets.
IA. This order is and shall be binding upon and govern the acts of all persons and
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 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 lease; and each of
the foregoing persons and entities is hereby directed to accept for filing this Order as sole and
sufficient evidence of such transfer of title and shall rely upon this Order to consummate the
transactions contemplated by the Final APA.
15. Notwithstanding anything to the contrary in this Order, in the Motion or the Final
APA, the Purchaser shall receive the benefits and burdens of, and be solely responsible for
payment in full of all accrued charges, payments, and the like arising under or pursuant to the
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Assumed Liabilities. If the Purchaser disputes any alleged charge, credit or payment under any
of the Assumed Liabilities and the parties are unable to come to an agreement regarding the
amount actually owed, the dispute may be adjudicated by the Bankruptcy Court or any other
court of competent jurisdiction. The Purchaser shall be entitled to file or record a certified copy
of this Order in the applicable public records in order to give notice of the termination and
release of Encumbrances pursuant to this Order (other than Encumbrances securing the DIP
Facility made pursuant to the DIP Credit Agreement as provided in the Final DIP Order and the
DIP Credit Agreement) which Encumbrances are expressly preserved, except with respect to the
Debtors, their estates and all property of the Debtors' estate which shall be, upon Purchaser's
assumption of the DIP Facility, deemed released, discharged and which shall have no further
obligation under the DIP Facility, and the DIP Liens shall be deemed released and shall no
longer attach to the Debtors' property and proceeds of the Sale.
Executo ' Contracts and Leases
16. Upon the Closing of the Sale, the Debtors are authorized and directed to assume
and assign the Assumed Executory Contracts to the Purchaser free and clear of all
Encumbrances, except for the obligation to pay the applicable Cure Amount, if any. With
respect to each Assumed Executory Contract, the payment of the applicable Cure Amount (if
any) by the Purchaser shall (a) effect a cure of all monetary defaults existing thereunder as of the
Closing Date, (b) compensate the applicable Contract Counter -party for any actual pecuniary loss
resulting from such default, and (c) together with the assumption of the Assumed Executory
Contract by the Purchaser, constitute adequate assurance of future performance thereof. The
Purchaser shall then have assumed the Assumed Executory Contracts and, pursuant to section
365(f) of the Bankruptcy Code, the assignment by the Debtors of such Assumed Executory
Contracts shall nor be a defauh thereunder. Alter the payment of the relevant Cure Amounts by
Case 16-11290-CSS Doc 392 Filed 09/08/16 Page 24 of 33
the Purchaser, neither the Debtors nor the Purchaser shall have any further liabilities to the
Contract Coumerparties other than the Purchaser's obligations under the Assumed Executory
Contracts that accrue and become due and payable on or after the Closing Date.
17. Pursuant to the terms of the Final APA, the Purchaser may, by written notice to
the Debtors, choose to exclude certain of the Debtors' contracts or leases from the list of
Assumed Executory Contracts until two (2) business days prior to the Closing Date, in which
case each such contract or lease shall not be assumed by the Debtors.
19. Anv provisions in any Assumed Executory Contract that prohibits or conditions
the assignment of such Assumed Executory Contract or allows the patty to such Assumed
Executory Contract to terminate, recapture, impose any penalty, condition on renewal or
extension or modify any term or condition upon the assignment of such Assumed Executory
Contract, constitute unenforceable anti -assignment provisions that are void and of no force and
effect pursuant to section 365(f) of the Bankruptcy Code. All other requirements and conditions
under sections 363 and 365 of the Bankruptcy Code for the assumption by the Debtors and
assignment to the Purchaser of the Assumed Executory Contracts have been satisfied, and such
assumption and assignment shall not constitute a default thereunder. Upon the Closing and the
payment of the required Cure Amount by the Purchaser, if any, in accordance with sections 363
and 365 of the Bankruptcy Code, the Purchaser shall be fully and irrevocably vested with all
right, tide and interest of the Debtors under each Assumed Executoy Contract.
19. Other than as provided under the Final APA, there shall be no rent accelerations,
assignment fees, deposits, increases (including advertising rates) or any other fees charged to the
Purchaser or the Debtors as a result of the assumption and assignment of the Assumed F,xecutory
Contracts.
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20. Upon the Closing and the payment of the Cure Amount by the Purchaser, if any,
applicable to any Assumed Executory Contract, the Purchaser shall be deemed to be substituted
for the relevant Debtor as a party to such Assumed Executory Contract, and the Debtors shall be
relievcd, pursuant to section 365(k) of the Bankruptcy Code, from any further liability under
such Assumed Executory Contract.
21. Upon the Closing and the payment of the applicable Cure Amounts, if any, the
Assumed Executory- Contracts shall remain in full force and effect, and no default shall exist
thereunder and there shall not exist any event or condition which, with the passage of time or
giving of notice, or both, would constitute such a default.
22. Pursuant to sections 105(a), 363 and 365 of the Bankruptcy Code, all Contract
Counter -parties are forever barred and permanently enjoined from raising or asserting against the
Debtors, their estates, the Purchaser, or any of their respective successors and assigns any
assignment fee; default, breach or claim or pecuniary loss, or condition to assignment, arising
under or related to the Assumed Executory Contracts existing as of the Closing Date or arising
by reason ofthe Closing.
Other Provisions
23. Effective upon the Closing Date and except as otherwise provided by stipulations
tiled with or announced to the Court with respect to a specific matter, all persons and entities are
forever prohibited and permanently enjoined from commencing or continuing in any manner any
action or other proceeding, wtnether in law or equity, in any judicial, administrative, arbitral or
other proceeding against the Purchaser, including after giving effect to the Credit Bid Steps, its
successors and assigns, or the Purchased Assets, with respect to (a) any Encumbrance arising
prior to the Closing of the Sale or (b) successor liability, to the extent allowed by applicable law,
except as otherwise set forth in this Order.
Case 16-11290-CSS Doc 392 Filed 09108/16 Page 26 of 33
24, To the maximum extent available under applicable law and to the extent provided
for under the Final APA, except as otherwise set forth in this Order, the Purchaser shall be
authorized, as of the Closing Date, to operate under any license, permit, registration and
governmental authorization or approval of the Debtors with respect to the Purchased Assets and,
to the maximum extent available under applicable law and to the extent provided for under the
Final APA, all such licenses, permits, registrations and governmental authorizations and
approvals are deemed to have been transferred to the Purchaser as of the Closing hate, and all
persons and entities are forever prohibited and permanent])- enjoined from commencing or
continuing in any manner any action or other proceeding, whether in law or equity, in any
judicial, administrative, arbitral or other proceeding seeking to revoke, terminate or refuse to
renew, based upon conduct occurring prior to the Sale, any license, permit or authorization to
operate any of the Purchased Assets or conduct any of the businesses operated with the
Purchased Assets. All existing licenses or permits applicable to the Purchased Assets shall
remain in place for the Purchaser's benefit until either new licenses and permits are obtained or
existing licenses and permits are transferred in accordance with applicable administrative
procedures.
25. lixcept fix the Assumed Liabilities or us otherwise expressly set forth in the Final
APA or this Order, the Purchaser shall not have any liability for any obligation of the Debtors
arising under or related to any of the Purchased Assets. Without limiting the generality of the
foregoing, and except for the Assumed Liabilities provided in the Final APA, the Purchaser shall
not be liable for any Claims against the Debtors or any of their predecessors or affiliates, By
virtue of the Sale, to the extent allowed by applicable law and except as otherwise set forth in
this Order, the Purchaser and its affiliates, successors and assigns shall not be deemed or
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Case 16-11290-CSS Doc 392 Filed 09I08116 Page 27 of 33
considered to. (a) be a legal successor, or otherwise be deemed a successor to any of the Debtors,
(h) have, de facto or otherwise, merged with or into any or all Debtors, or (c) be a continuation or
substantial continuation, of any of the Debtors or their respective estates, businesses or
operations, or any enterprise of the Debtors, in each case by any law, or equity, and the Purchaser
has not assumed nor is it in any w-ay responsible for any liability or obligation of the Debtors or
the Debtors' estates, except with respect to the Assumed Liabilities. To the extent allowed by
applicable law and except as otherwise set forth in this Order, the Purchaser shall have no
successor or vicarious liabilities of any kind or character, including, but not limited to, any
theory of antitrust, environmental, successor or transferee liability, labor or employment law, de
facto merger or substantial continuity, whether known or unknown as of the Closing Date, now
existing or hereafter arising, whether fixed or contingent, with respect to the Debtors or any
obligations of the Debtors arising prior to the Closing Date, including, but not limited to,
liabilities on account of any taxes arising, accruing or payable under, out of, in connection with,
or in any way relating to the operation of any of the Purchased Assets prior to the Closing.
26. The transactions contemplated by the Final APA and this Order are undertaken by
the Purchaser without collusion and in good faith, as that term is described 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 shall not affect the validity of the Sale
(including the assumption and assignment of the Assumed lixccalury Contracts), unless such
authorization and such Sale are duly stayed pending such appeal. The Purchaser is a good faith
buyer within the meaning of section 363(m) of the Bankruptcy Code and, as such, is entitled to
the full protections of section 363(m) of the Bankruptcy Code.
Case 16-11290-CSS Doc 392 Filed 0910BI16 Page 28 of 33
27, Pursuant to Bankruptcy Rules 7062, 9014, 6004(h) and 6006(d), this Order shall
be effective immediately upon entr} and the Debtors and the Purchaser are authorized to close
the Sale immediately upon entry of this Order.
28. As provided in the Final APA, this Order approves and provides for the transfer to
the Purchaser of all avoidance claims (whether under chapter 5 of the Bankruptcy Code or
otherwise) of the Debtors' estates related to, or arising from, any Assumed Executory Contract or
relating to any Assumed Liability. Notwithstanding anything to the contrary contained in the
Final APA, the Debtors and the Purchaser agree to waive and not prosecute any claims and
causes of action under sections 5D2(d), 544, 545, 547, 548 and 550 of the Bankruptcy Code, or
any other avoidance actions under the Bankruptcy Code belonging to the Debtors or acquired by
the Purchaser against vendors (other than Insiders (as such term is defined in section 101(31) of
the Bankruptcy Code) of any of the Debtors) continuing to supply goods and services to the
Debtors or the Purchaser during the thirty (34) days after the Closing of the Sale.
29. No bulk sales law or any similar law of any state or other jurisdiction applies in
any way to the Sale. ^
30. The Debtors are authorized to change their corporate names in the domestic
jurisdictions in which they are registered or authorized to do business under the names mutually
agreed upon between the Debtors and Purchaser, which such names shall not include the word
"Veriellus", and to provide the Purchaser with evidence of such name chanEes upon request
thereof.
31. The Final APA is authorized and approved in its entirely. The failure specifically
to include any particular provision of the Final APA in this Order shall not diminish or impair
the effectiveness of such provision,
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32. The Final APA and any related agreements, documents or other instruments may
be modified, amended or supplemented by the parties thereto and in accordance with the terns
thereof, without further order of the Court but after consultation with the Consultation Parties,
i
provided that any such modification, amendment or supplement does not have a material adverse
effect on the Debtors' estates or on the interests of the Purchaser as determined by the
Bankruptcy Court or a court of competent jurisdiction.
33. The Court shall retain jurisdiction to, among other things, interpret, implement,
and enforce the terms and provisions of this Order and the Final APA, all amendments thereto
and any releases, waivers and consents hereunder and thereunder, and each of the agreements
executed in connection therewith to which any of the Debtors are a parry or Which has been
assigned by the Debtors to the Purchaser, and to adjudicate, if necessary, any and all disputes
concerning or relating in any way to any of the foregoing.
34. All time periods set forth in this Order shall be calculated in accordance with
Bankruptcy Rule 9006(a).
35. To the extent that this Order is inconsistent with any prior order or pleading with
respect to the We Motion filed in these chapter I I cases, the terms of this order shall govern.
36. Upon Closing, any cash proceeds of the Sale shall be paid over to the Debtors for
distribution in accordance with the priorities set forth in the Bankruptcy Code or as otherwise
ordered by this Court.
37, Nothing in this Order or the Final APA releases, nullifies, precludes, or enjoins
the enforcement of any valid police or regulatory liability to a governmental unit, to which that
Purchaser may be subject to as the owner or operator of any property that is a Purchased Asset
after the date of entry of this Order; provide— however, that all rights and defenses of the
Case 16-11290-CSS Doc 392 Filed 09/08/16 Page 30 of 33
Purchaser under nonbankruptcy law are preserved. Nothing in this Order or the Final APA
authorizes the transfer or assignment ofany governmental (a) license, (b) permit, (c) registration,
(d) authorization or (e) approval, ar the discontinuation of any obligation thereunder, without
compliance with all applicable legal requirements and approvals under police or regulatory law.
38. Nothing in this Order shall release any entity of any existing liability it may have
under police or regulatory law as of the date of entry of this Order.
39. Nothing in this Order or Final APA impairs or adversely affects any right, if any,
of any governmental unit with respect to any financial assurance, letter of credit, standby trust
fund, surety bond or insurance proceeds of which it is a designated beneficiary as of the date of
entry of this Order or to any insurance proceeds that may be recovered under general liability or
environmental policies.
40, Debtor Vertellus Specialties Inc. owns the property commonly known as 3201
Independence Road, Cleveland, Ohio 44105, PPN! 131-12-001 (the "Independence Pm tpeerty").
The Debtors and the Purchaser acknowledge and agree that the Property is currently listed as an
Excluded Asset on Schedule 1.2(1) of the Final APA and, therefore, the Independence Property is
not currently one of the Purchased Assets being acquired by the Purchaser pursuant to the Final
APA, the Motion and this Order. VSI and Independence Excavating, Inc. ("Excavatine') are
parties to a Ground Lease Agreement dated September 18, 2013 with respect to the
Independence Property (the "Independence Lease-"). The Debtors and the Purchaser
acknowledge and agree that the Independence Lcase is not currently listed as an Assigned
Contract on Schedule 1.1(b) of the Final APA and therefore the Independence Ixasc is not
currently one of the Purchased Assets being acquired by the Purchaser pursuant to the Final
APA, the Motion and this Order. The Debtors and the Purchaser further acknowledge and agree
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that: (i) the Independence Property and the Independence Lease µill not be added to the Final
APA as a Purchased Asset and an Assigned Contract, respectively, prior to the Closing Date; and
(ii) the Purchaser will not purchase the Independence Property and will not assume the
Independence Lease whether in connection with the Motion, the Final APA or otherwise. Based
on the foregoing- [Excavating has withdrawn its August 24, 2016 Objection to the Motion [Dki.
No, 3321. The withdrawal of the Objection is without prejudice to Excavating's right to assen
the arguments in the Objection in response to any future attempt by the Debtors to sell the
Independence Road Property or any pleading filed in this case affecting Excavating's rights
under the Independence Lease or otherwise.
41. The Purchaser shall perform in the ordinary course of business its obligations
under those certain (i) Labor Agreement, dated September 18, 2013, by and among Vertellus
Specialties Inc. and the United Steel, Paper and Forestry, Rubber, Manufacturing, F,nergy, Allied
Industrial and Service Worker International Union on behalf of local 4-406, as modified, and
(ii) Labor Agreement, dated September I, 2013, by and among Venellus Specialties Inc. and the
United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service
Workers International Union on behalf of Local 1999. as such agreements are modified, whether
such obligations arose prior to closing or afterwards.
42. On August 30, 2016, Cargill Dry Corn Ingredients, Inc. ("C1PC]") filed a limited
objection and reservation of rights to the Motion ("CDCI Objection') IDkt. No. 354j.
Notwithstanding anything to the contrary in this Order or in the Final APA, neither the
"Settlement Agreement" nor the "Easement Agreement" (as those Agreements are defined in the
CDCI Objection) are being assumed or rejected pursuant to this Order or the Final APA.
Case 16-11290-CSS Doc 392 Filed 09/08/16 Page 32 of 33
Further, CDCI's right to be heard on the issue of whether such Agreements are execulorc
contracts within the meaning of section 365 of the Bankruptcy Code is expressly reserved herein.
43. Notwithstanding anything to the contrary in this Order or the Final APA, in the
event that the Shared Services and Resources Agreement, dated as of January 30, 2015, by and
among Vertellus Specialties Inc., Vertellus Performance Chemicals LLC and other parties
thereto (the "Shared Services At-reemcnt") is not an "Assigned Contract" under the Final APA,
Purchaser shall provide to Veriellus Performance Chemicals LLC ("VP("), a minimum of six
consecutive months (or such additional time as may be agreed to between Purchaser and VPC) of
all services (the "fransilion Services") under the Shared Services Agreement, beginning upon
the closing of the Sale. The Transition Services shall be provided by Purchaser on commercially
reasonable terms, as agreed upon between VPC and the Purchaser (the "Parties"). In the event
that the Parties are unable to reach agreement on the commercially reasonable terms of such
Transition Services by September 16, 2016, the Parties hereby submit to the jurisdiction of the
Bankruptcy Court and shall request that the Bankruptcy Court determine the commercially
reasonable terms of such shared services for such period of rime, which shall be determined
(either by agreement of the Parties or further Order of Ibis Court) prior to the Closing Date of the
Sale.
44. The Linthed Objection of the QJf[eial Committee of Unsecured Creditors to
Motion of Debtors for Flury of an Order: (A) Approving and Authuri:ing Sale of.Subsrantially
All Debtor Assets to Successful Bidder lrree and Clear rfAll Liens. Claims, Encumbrances and
Other Interests, (B) Approving assumption and Assignment of Certain Executory Contracts and
Unexpired Leases Related Thereto, and (C) Granting Related Relief [Docket No. 364j, and
Motions filed by the Commiuce in connection therewith [Docket Nos. 340 and 3411 arc resolved
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with prejudice and withdrawn (other than with respect to the Mediation Issues as defined in the
executed Term Sheet described on the record at the Sale Ilearing, and a copy of which is
attached hereto as Fxhihit I)), which Mediation Issues are preserved and will be addressed in the
manner set forth in the Tenn Sheet) based upon the resolutions and representations made on the
record at the Sale Hearing. Nothing in this Order shall be interpreted as approving any plan or
structured dismissal, or any terms of the same, including any such terms set forth in Exhibit U
hereto.
45. The Objection of the United .States, Ohio, lndiana, and Utah to the Debtors' Sale
rlfSubstantiallYAll Their Assets [Docket No.365] (the"Emironmental Objection"), is resolved
and withdrawn based upon the resolutions and representations made on the record at the Sale
Hearing, Post -closing, Purchaser will comply with the existing Consent Decrees with respect to
the Tibbs Avenue Superfund site, including maintaining financial assurance, provided that the
EPA shall continue in good faith to consider approving air sparging as an alternative remedy
and entering into a new agreement with the Purchaser that will replace the existing Consent
Decrees on terms and conditions consistent with the proposed Sale. Purchaser will not sign the
existing consent decree. To the extent that the Debtors, the Purchaser and the relevant
governmental authorities are not able to document an agreement reflecting the terns set forth at
the Sale Hearing, the relevant governmental authorities reserve the right to seek to enforce the
terms of the resolutions and representations made on the record at the Sale I learing and to seek
further relief from the Court prior to the closing of the Sale.
Dated: September B, 2016 C
Wilmington, Delaware The l4onorable Christopher S. Sonichi
United States Bankruptcy Judge
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