Opinion
Case No. 04-33192 Jointly Administered.
July 13, 2004.
Upon the motion (the "Motion") of the debtors and debtors in possession in the above-captioned chapter 11 cases (collectively, the "Debtors") seeking entry of an order (a) authorizing and scheduling a public auction for the sale of certain or all of the Debtors' assets, by one or more sales (the "Sale(s)") to one or more bidders, free and clear of all liens, claims, encumbrances and interests, (b) approving procedures for the submission of Qualifying Bids, (c) approving bid protections, and (d) approving the form and manner of notice pursuant to Rule 2002 of the Federal Rules of Bankruptcy Procedure; and it appearing that the relief requested is in the best interest of the Debtors' estates and creditors; and it appearing that this Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334; and it appearing that this Motion is a core proceeding pursuant to 28 U.S.C. § 157; and adequate notice of the Motion having been given; and it appearing that no other notice need be given; and after due deliberation and sufficient cause appearing therefor, it is hereby:
Capitalized terms not defined herein shall have the same meaning ascribed in the Motion.
Findings of fact shall be construed as conclusions of law and conclusions of law shall be construed as findings of fact when appropriate. See Fed.R.Bankr.P. 7052. Statements made by the Court from the bench at the hearing shall constitute additional conclusions of law and findings of fact as appropriate.
A. The Debtors have articulated good and sufficient reasons for approval of the Bidding Procedures, the Gemini Termination Fee, the DB Termination Fees, the Overbid Protection and the Notice of Auction in connection with the Sale(s) of the Gemini Assets, the DB Assets and/or the Jillian Assets; and
B. The Bidding Procedures, the Gemini Termination Fee, the DB Termination Fees and the Overbid Protection are reasonable and appropriate to maximize the return on the Gemini Assets, the DB Assets and/or the Jillian Assets.
NOW, THEREFOR, IT IS HEREBY:
ORDERED that the Motion is approved; and it is further
ORDERED that the Bidding Procedures, attached to the Motion asExhibit C, are approved; and it is further
ORDERED that the following procedures relating to the submission and consideration of qualifying offers (each, a "Qualifying Bid") are hereby approved:
(A) Upon request by a prospective bidder to the Debtors, the Debtors shall, upon (i) execution by such prospective bidder of a confidentiality agreement in form and substance satisfactory to the Debtors in their reasonable judgment (after consultation with the Senior Lenders and the Committee), and (ii) delivery of such prospective bidder's certified financial statements for the preceding two years (or other evidence, to satisfy the Debtors', in their reasonable judgment, after consultation with the Senior Lenders and the Committee, that such prospective bidder has the financial capability to timely close its proposed Qualifying Bid), provide such person with reasonable access to all relevant business and financial information necessary to enable such person to evaluate the Debtors' assets and liabilities (the "Business Information") for the purpose of submitting a bid for the Gemini Assets, the DB Assets or the Jillian Assets (a "Qualifying Bid"). In the event the Debtors, in their reasonable judgment, determine that a prospective bidder does not have the financial capability to timely close its proposed Qualifying Bid and as a result thereof, the Debtors decline to grant such prospective bidder reasonable access to the Business Information, the Debtors shall (i) give both the Senior Lenders and the Committee prompt notice of such refusal to provide the Business Information and (ii) notwithstanding anything contained herein, the Senior Lenders, the Committee and the Equipment Creditors (as defined herein), limited solely to the extent the Equipment Creditors' secured collateral is to be sold pursuant to a potential Sale(s), shall reserve their right to object to the Debtors' refusal to provide such Business Information.
(B) To be considered, each Qualifying Bid shall remain open and irrevocable in accordance with its terms until after each Final Accepted Bidder (as defined below) closes the purchase of the Gemini Assets, the DB Assets or the Jillian Assets and shall (unless otherwise determined by the Debtors in their reasonable judgment, after consultation with the Senior Lenders and the Committee):
(i) Be submitted in writing by a party satisfying the conditions described in the preceding paragraph (A) (each, a "Qualifying Bidder");
(ii) Be submitted on or before 5:00 p.m., prevailing Louisville, Kentucky time, no less than five (5) business days before the Auction, by (a) delivering the complete Qualifying Bid together with the Deposit (as defined below) to the Debtors at the address provided below; and (b) delivering a complete copy of the Qualifying Bid to:The Debtors:
Jillian's Entertainment Holdings, Inc. Richard Walker 4500 Bowling Boulevard, Suite 200 Louisville, Kentucky 40207 Telephone: (502) 638-9008 Facsimile: (502) 638-0635Co-Counsel for the Debtors:
Kirkland Ellis LLP James H.M. Sprayregen, P.C. James W. Kapp III 200 East Randolph Drive Chicago, Illinois 60601 Telephone: (312) 861-2000 Facsimile: (312) 861-2200
Frost Brown Todd LLC c/o Edward M. King 400 West Market Street, 32nd Floor Louisville, Kentucky 40202 Telephone: (502) 589-5400 Facsimile: (502) 581-1087
and
c/o Ronald E. Gold 2200 PNC Center 201 East Fifth Street Cincinnati, Ohio 45202 Telephone: (513) 651-6800 Facsimile: (513) 651-6981Financial Advisors to the Debtors:
Houlihan, Lokey, Howard Zukin Charles Reardon 1750 Tysons Blvd., Suite 650 McLean, Virginia 22102 Telephone: (703) 714-1728 Facsimile: (703) 356-5764Counsel to the Agent for the Senior Lenders:
Proskauer Rose LLP Vincenzo Paparo Michael E. Foreman 1585 Broadway, 22nd Floor New York, New York 10036 Telephone: (212) 969-3000 Facsimile: (212) 969-2900
-and-
[Proposed] Co-Counsel to the Committee
MORRIS, NICHOLS, ARSHT TUNNELL Eric D. Schwartz Gregory W. Werkheiser 1201 Market Street P.O. Box 1347 Wilmington, DE 19899-1347 Telephone: (302) 658-9200 Facsimile: (302) 658-3989
and
Mark A. Robinson One Riverfront Plaza, Suite 1950 401 W. Main Street Louisville, KY 40202 Telephone: (502) 568-2100 Facsimile: (502) 568-2101
In the event that the Debtors, in their reasonable judgment, determine to alter the requirements for a bid to constitute or not constitute a Qualifying Bid from these requirements set forth in paragraph B of this Order, the Debtors shall: (i) provide the Senior Lenders and the Committee with prompt notice of such bid and how the procedural requirements of paragraph B have been altered with respect to such bid and (ii) notwithstanding anything contained herein, the Senior Lenders, the Committee and the Equipment Creditors, limited solely to the extent the Equipment Creditors' secured collateral is to be sold pursuant to a potential Sale(s), shall reserve their right to object to the Debtors' refusal or acceptance of such bid.
(iii) (a) In the event such bid is for the Gemini Assets, contain (1) a representation that the Qualifying Bidder will agree to all terms and conditions set forth in the Gemini Asset Purchase Agreement or (2) a mark-up of the Gemini Asset Purchase Agreement that the Qualifying Bidder requires; (b) in the event such bid is for the DB Assets, contain (1) a representation that the Qualifying Bidder will agree to all terms and conditions set forth in the DB Asset Purchase Agreement or (2) a mark-up of the DB Asset Purchase Agreement that the Qualifying Bidder requires; or (c) in the event such bid is for all of or part of or any combination of the Jillian Assets, contain (1) a representation that the Qualifying Bidder will agree to all terms and conditions set forth in either the Gemini Asset Purchase Agreement or the DB Asset Purchase Agreement as the Qualifying Bidder so requires or (2) a mark-up of the Gemini Asset Purchase Agreement or the DB Asset Purchase Agreement that the Qualifying Bidder requires;
(iv) If applicable, (a) provide for review by the Debtors and counsel to the Senior Lenders and the Committee of the draft submissions of the Qualifying Bidder relating to the approval of the Qualifying Bidder's purchase of the Gemini Assets, the DB Assets and/or the Jillian Assets by the Federal Trade Commission in accordance with the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, if necessary in the Debtors' sole discretion; (b) represent that the Qualifying Bidder is prepared to immediately initiate all actions necessary to obtain all other applicable regulatory approvals for the qualifying bid; and (c) provide its best estimate of the time within which such approvals will be obtained;
(v) (a) Clearly state the portion of consideration to be paid in cash and the portion to be paid in any other form of value; (b) provide such information as to permit the Debtors to accurately assess the value of such consideration, if any consideration is to be provided in a form other than cash; (c) give sufficient indicia that the bidder or its representative is legally empowered, by power of attorney or otherwise, and financially capable, to both bid on behalf of the bidder and also to complete and sign, on behalf of the bidder, a binding and enforceable asset purchase agreement, including as such agreement may be amended at the Auction; and (d) identify each and every executory contract or unexpired lease, the assumption and assignment of which is a condition to closing, and provide evidence of the bidder's ability to comply with section 365 of the Bankruptcy Code;
(vi) Not be considered to be a higher and better offer (a) unless the Debtors' have determined in good faith and in their business judgment, after consultation with the Senior Lenders and the Committee, that the offer, if accepted, is reasonably likely to be closed and would, if closed, result in a sale of any or all of the Jillian Assets (the "Superior Proposal"), and (b) unless such bid is not conditioned on the outcome of due diligence that is not completed by the date that is five (5) business days prior to the date of the Auction (unless otherwise agreed to by the Debtors in their reasonable judgment), subject to the right of the Senior Lenders, the Committee and the Equipment Creditors, limited solely to the extent the Equipment Creditors' secured collateral is to be sold pursuant to a potential Sale(s), to object to any such determination;
(vii) Include an earnest money deposit of (a) $500,000 in the event such bid is for the Gemini Assets, (b) $1,379,000 in the event such bid is for the DB Assets or (c) $1,879,000 in the event such bid is for all of the Jillian Assets, in cash or in other form of immediately available U.S. funds (each, a "Deposit");
(viii) In the event such bid is for the Gemini Assets, offer an aggregate consideration of at least $11,729,957 (i.e., approximately 5% greater than the Gemini Bid (the "Gemini Initial Overbid Amount");
(ix) In the event such bid is for the DB Assets, offer an aggregate consideration of at least $28,657,400 (i.e., approximately 4% greater than the DB Bid (the "DB Initial Overbid Amount" and together with the Gemini Initial Overbid Amount, the "Overbid Protection");
(x) In the event such bid is for all of the Jillian Assets, offer an aggregate consideration of at least $40,387,357 (i.e., the sum of paragraphs (B)(viii) and (ix) above); and
(xi) If a Qualifying Bid is conditioned on the assumption and assignment of any executory contract or unexpired lease, include sufficient information to permit the Debtors to determine the proposed assignee's ability to comply with section 365 of the Bankruptcy Code (as applicable), including providing adequate assurance of such assignee's ability to perform in the future.
(C) The Bank Bid will be deemed a Qualifying Bid subject to and upon compliance with all requirements described herein and in the Bidding Procedures, and the Senior Lenders will be deemed a Qualifying Bidder subject to and upon compliance with all requirements described herein and in the Bidding Procedures, and will be allowed to participate in the Auction; provided, however, that:
(i) The Senior Lenders will not be required to provide a Deposit as required in paragraph (B)(vii) above; and
(ii) The Senior Lenders need not deliver certified financial statements for the preceding two years (or other evidence establishing to the Debtors' satisfaction of the Senior Lenders' financial capability to timely close its proposed Qualifying Bid) as required in paragraph (A) above.
(D) A Qualifying Bid that satisfies all of the required terms and conditions set forth in the preceding paragraphs (A) and (B) above, and a Bank Bid, if any, that satisfies all of the required terms and conditions set forth in paragraph (C) above shall be considered a "Conforming Qualifying Bid."
(E) Upon receipt of a Conforming Qualifying Bid, the Debtors, in their discretion, may communicate with such Qualifying Bidder prior to the Auction, and such Qualifying Bidder shall provide to the Debtors within one business day after the Debtors' request therefor, any information reasonably required by the Debtors in connection with the Debtors' evaluation of such Conforming Qualifying Bid.
(F) The Debtors reserve the right to establish any incremental bidding amounts at the Auction. In the event the Debtors decide to establish incremental bidding amounts for the Auction (after consultation with the Senior Lenders and the Committee), (i) the Debtors will provide the Senior Lenders and the Committee with prompt notice of such incremental bidding amounts and (ii) notwithstanding anything contained herein, the Senior Lenders and the Committee shall reserve their right to object to such incremental bidding amounts.
(G) Prior to the Auction, the Debtors, in their reasonable judgment, after consultation with the Senior Lenders and the Committee, shall evaluate each Conforming Qualifying Bid they have received, as well as the Gemini Bid and the DB Bid, and shall select the bid(s) that the Debtors determine to be the highest and best offer(s) that constitutes a Superior Proposal for the Gemini Assets, the DB Assets and/or the Jillian Assets. Notwithstanding anything contained herein, the Senior Lenders, the Committee and the Equipment Creditors, limited solely to the extent the Equipment Creditors' secured collateral is to be sold pursuant to a potential Sale(s), shall reserve their right to object to the Debtors' determination that such bids constitute a Superior Proposal.
(H) On or before September 21, 2004, as the Debtors determine in their discretion, the Debtors shall conduct the Auction, on invitation to each Qualifying Bidder that has made a Conforming Qualifying Bid, as well as Gemini and DB, to determine which bid(s) will be presented to the Court for approval at the Sale Hearing. Such invitations shall designate the location of the Auction. The only persons who will be permitted to bid at the Auction are those bidders that have made Conforming Qualifying Bids, as well as Gemini and DB.
(I) For its Conforming Qualifying Bid to be considered, each bidder must appear in person at the Auction or through a duly authorized representative, unless alternative arrangements are made in advance with the Debtors. If multiple bids satisfying all of the Debtors' imposed requirements, each such bidder shall have the right to continue to improve its bid at the Auction. Bidding will commence with: (i) the announcement of the highest and best Conforming Qualifying Bid that constitutes a Superior Proposal for all of the Jillian Assets (or the highest and best Conforming Qualifying Bids in the event that there are multiple Conforming Qualifying Bids that constitute Superior Proposals for the Gemini Assets and the DB Assets), and will proceed in monetary increments to be determined by the Debtors; or (ii) such other Bidding Procedures as are determined by the Debtors, subject to the limitations of paragraph (F) herein.
(J) If a Conforming Qualifying Bid or a combination of Conforming Qualifying Bids provides payment in full of the outstanding principal of the Senior Credit Facility by any form of payment, including, inter alia, cash, debt instruments, or equity interests, at the Auction, the Senior Lenders will forfeit the right to submit additional credit bids based upon obligations owed by the Debtors under the Senior Credit Facility; provided, however, to the extent debt instruments or equity interests constitute any portion of such payment, such debt instruments or equity interests must be acceptable to the Senior Lenders.
(K) The bid or bids that the Debtors, after consultation with the Senior Lenders and the Committee, determine to be the highest and best offer or offers for the Gemini Assets, the DB Assets or the Jillian Assets at the Auction (each, a "Final Accepted Bid") shall be submitted for approval by the Court. Notwithstanding anything contained herein, the Senior Lenders, the Committee and the Equipment Creditors, limited solely to the extent the Equipment Creditors' secured collateral is to be sold pursuant to a potential Sale(s), shall reserve their right to object to any such determination. The Debtors shall use their commercially reasonable efforts to consummate each Court-approved transaction within fifteen (15) calendar days after the entry of the sale order(s) (the "Sale Order(s)") approving the Final Accepted Bid(s).
(L) Each Deposit received by the Debtors shall be maintained in an interest-bearing account and be subject to the jurisdiction of the Court.
(M) Each Deposit shall be applied by the Debtors against the cash portion of the purchase price to be paid by each Final Accepted Bidder at the closing of the transaction approved by the Court. If the Senior Lenders are a Final Accepted Bidder, the Bank Bid shall be applied by the Debtors against the purchase price to be paid by the Senior Lenders at the closing of the transaction approved by the Court.
(N) If any Final Accepted Bidder fails to close the purchase of any of the Jillian Assets, such party's Deposit, together with any interest paid thereon, shall be forfeited to, and retained irrevocably by, the Debtors, and the Debtors specifically reserve the right to seek all appropriate additional damages from such bidder. Furthermore, in such a circumstance, the bidder of the next highest and best Conforming Qualifying Bid for such Jillian Assets as determined by the Debtors, after consultation with the Senior Lenders and the Committee, that constitutes a Superior Proposal will automatically be deemed to have submitted the highest and best Conforming Qualifying Bid, and such bidder shall be subject to the Bidding Procedures as if such bidder were originally determined to be a Final Accepted Bidder; provided, however, nothing herein shall affect the Debtors' right to retain the Deposit of any bidder that is or is deemed to be a Final Accepted Bidder and to seek all available damages from any such bidder that otherwise fails to close the purchase of any of the Jillian Assets pursuant to the Bidding Procedures. Notwithstanding anything contained herein, the Senior Lenders, the Committee and the Equipment Creditors, limited solely to the extent the Equipment Creditors' secured collateral is to be sold pursuant to a potential Sale(s), shall reserve the right to object to any such determination.
(O) Except as otherwise set forth herein, after the closing of the purchase of the Gemini Assets, the DB Assets and/or the Jillian Assets, the Debtors shall return to each unsuccessful Qualifying Bidder its Deposit, together with any interest paid thereon, submitted by such Qualifying Bidder.
ORDERED the Senior Lenders' Qualifying Bid shall be subject to the Committee's or any trustee's rights to investigate and pursue any actions against the Senior Lenders, including, but not limited to, actions under chapter 5 of the Bankruptcy Code, including, without limitation, any judgments or orders granting relief in favor of the Committee, the Debtors' estates or any successor to such parties' rights in the pursuit of such actions; and it is further
ORDERED that the Debtors reserve their rights in their reasonable judgment (after consultation with the Senior Lenders and the Committee) to: (i) impose, at or prior to the Auction, additional terms and conditions on a sale of any of the Jillian Assets consistent with the Bidding Procedures Order; (ii) extend the deadlines set forth in the Bidding Procedures; (iii) adjourn the Auction at the Auction, and/or adjourn the Sale Hearing in open court without further notice; (iv) withdraw from the Auction any or all of the Jillian Assets at any time prior to or during the Auction or cancel the Auction; (v) reject all Conforming Qualifying Bids if no bid is for fair and adequate consideration; and (vi) modify the Bidding Procedures, including, without limitation, any and all processes and rules regarding conduct of activities at the Auction, including, inter alia, the manner in which bids are submitted and the permitted increments of such bids. However, notwithstanding anything contained herein, the Senior Lenders, the Committee and the Equipment Creditors, limited solely to the extent the Equipment Creditors' secured collateral is to be sold pursuant to a potential Sale(s), shall reserve their rights to object to any actions taken by the Debtors pursuant to this paragraph; and it is further
ORDERED that the entry of the order shall not constitute findings of facts or conclusions of law that the purchasers have acted in "good faith" or prejudiced the Committee's right to seek approval of an alternative transaction; and it is further
ORDERED that all persons or entities who submit a Qualifying Bid for any of the Jillian Assets shall be deemed to have read and understood the terms and conditions of the Bidding Procedures and shall comply with and be bound by such Bidding Procedures; and it is further
ORDERED that any bidder which submits a bid shall not be required to allocate its bid amount to particular assets (that is, any such bidder shall only be required to provide a single, aggregate bid amount for all of the assets which are the subject of such bid); and it is further
ORDERED that the Senior Lenders shall have the right to credit bid for some or all of the Jillian Assets, in accordance with the Bidding Procedures, the outstanding amount under the Senior Credit Facility; provided, however, if a Conforming Qualifying Bid or a combination of Conforming Qualifying Bids provides payment in full of the outstanding principal of the Senior Credit Facility by any form of payment, including, inter alia, cash, debt instruments, or equity interests, at the Auction, the Senior Lenders will forfeit the right to submit additional credit bids based upon obligations owed by the Debtors under the Senior Credit Facility; provided, however, to the extent debt instruments or equity interests constitute any portion of such payment, such debt instruments or equity interests must be acceptable to the Senior Lenders; and it is further
ORDERED, that in the event the Senior Lenders credit bid on some or all of the Jillian Assets, where such Jillian Assets include some or all of the equipment of Brunswick Bowling and Billiards Corporation and/or General Electric Capital Corporation (collectively, the "Equipment Creditors"), and such bid is deemed to constitute a highest and best offer, then the Senior Lenders shall pay the respective Equipment Creditors an amount on behalf of the underlying collateral as agreed upon by the parties or as determined by order of this Court; and it is further
ORDERED, that notwithstanding any requirements described herein and in the Bidding Procedures, the Equipment Creditors will each be deemed a Qualifying Bidder and will be allowed to participate in the Auction for the purpose of submitting a credit bid, solely on their collateral, pursuant to section 363(k) of the Bankruptcy Code, provided that, on or before 5:00 p.m., prevailing Louisville, Kentucky time, no less than five (5) business days before the Auction, any Equipment Creditor wishing to submit a credit bid notifies the parties identified in subparagraph (B)(ii) of paragraph 3 of this Order of its intent to credit bid, with such right being without prejudice to (a) the Equipment Creditors' rights under 363(k) of the Bankruptcy Code, (b) the Debtors', Secured Lenders' and Committee's right to challenge the validity or extent of any Equipment Creditors' claim or the value of the Equipment Creditors' collateral, (c) the Court's right to determine that the amount of any credit bid pursuant to section 363(k) of the Bankruptcy Code does not represent the fair market value of the Equipment Creditors' collateral, and (d) any Equipment Creditors' right to object to any proposed determination as to what bid is the highest and best bid, limited solely to their secured collateral proposed to be sold pursuant to a potential Sale(s); and it is further
ORDERED that each Deposit received by the Debtors shall be maintained in an interest-bearing account and be subject to the jurisdiction of the Court; and it is further
ORDERED that if any Final Accepted Bidder fails to close the purchase of any of the Jillian Assets, such party's Deposit, together with any interest paid thereon, shall be forfeited to, and retained irrevocably by, the Debtors, and the Debtors specifically reserve the right to seek all appropriate additional damages from such bidder; and it is further
ORDERED that (i) nothing contained in this Order shall be construed to approve the ability of DB and Gemini to limit damages, if any, claimed against DB and Gemini to the amount of their respective Deposits as set forth in the DB and Gemini and Asset Purchase Agreements and (ii) the limitation of such damages shall be reserved and heard in connection with the Sale Motion; and it is further
ORDERED that if any Final Accepted Bidder fails to close the purchase of any of the Jillian Assets, the bidder of the next highest and best Conforming Qualifying Bid for such Jillian Assets as determined by the Debtors in their reasonable judgment (after consultation with the Senior Lenders and the Committee) that constitutes a Superior Proposal will automatically be deemed to have submitted the highest and best Conforming Qualifying Bid, and such bidder shall be subject to the Bidding Procedures as if such bidder were originally determined to be a Final Accepted Bidder; provided, however, nothing herein shall affect the Debtors' right to retain the Deposit of any bidder that is or is deemed to be a Final Accepted Bidder and to seek all available damages from any such bidder that otherwise fails to close the purchase of any of the Jillian Assets pursuant to the Bidding Procedures. However, not withstanding anything contained herein, the Senior Lenders, the Committee, and the Equipment Creditors, limited solely to the extent the Equipment Creditors' secured collateral is to be sold pursuant to a potential Sale(s), shall reserve their rights to object to any actions taken by the Debtors pursuant to this paragraph; and it is further
ORDERED that the Debtors are hereby authorized and empowered to take such steps, expend such sums of money, and do such other things as may be necessary to implement and effect the terms and requirements consistent with this Order; and it is further
ORDERED that except as otherwise set forth herein, after the closing of the purchase of the Gemini Assets, the DB Assets and/or the Jillian Assets, the Debtors shall return to each unsuccessful Qualifying Bidder its Deposit, together with any interest paid thereon, submitted by such Qualifying Bidder; and it is further
ORDERED that the Gemini Termination Fee, the DB Termination Fees, the Gemini Initial Overbid Amount and the DB Initial Overbid Amount are hereby approved; and it is further
ORDERED that the Debtors are authorized to pay the Gemini Termination Fee as set forth in the Gemini Asset Purchase Agreement; and it is further
ORDERED that the Debtors are authorized to pay the DB Break-Up Fee as set forth in the DB Asset Purchase Agreement; and it is further
ORDERED that the Debtors are authorized to pay the DB Expense Reimbursement Payment as set forth in the DB Asset Purchase Agreement; and it is further
ORDERED that the deadline for the submission of a Qualifying Bid (with a markup of the Gemini Asset Purchase Agreement or the DB Asset Purchase Agreement) is September 14, 2004 at 5:00 p.m., prevailing Louisville, Kentucky time; and it is further
ORDERED that the Auction will be held on September 21, 2004, at 10:00 a.m. prevailing Louisville, Kentucky time; and it is further
ORDERED that the Sale Hearing will be held on September 23, 2004 at 10:30 a.m. prevailing Louisville, Kentucky time; and it is further
ORDERED that the Notice of Auction, substantially in the form attached to the Motion as Exhibit D, and the Publication Notice, substantially in the form attached to the Motion asExhibit E, are approved in all respects and are sufficient to provide effective notice of the Bidding Procedures, the Auction, the Sale(s) and the Sale Hearing to all interested parties pursuant to Bankruptcy Rules 2002 and 6004; and it is further
ORDERED that the Debtors shall serve by first class mail, as soon as practicable after the date this Order is entered, the Notice of Auction, substantially in the form of Exhibit D attached to the Motion, upon (i) the Office of the United States Trustee, (ii) all parties who have requested notice pursuant to Bankruptcy Rule 2002, (iii) Proskauer Rose LLP, Vincenzo Paparo and Michael E. Foreman, counsel to the Agent for the Senior Lenders and the debtor-in-possession lender, (iv) McDermott, Will Emery, David J. Powers, counsel for Gemini, (v) Gardere Wynne Sewell LLP, Steve McCartin, counsel for DB, (vi) Hallett Perrin, Bruce H. Hallett, counsel for DB, (vii) Morris, Nichols, Arsht Tunnell, Eric D. Schwartz and Gregory W. Werkheiser, and Valenti Hanley Crooks, PLLC, Mark A. Robinson, counsel to the Committee, (viii) federal, state and local regulatory and taxing authorities that are reasonably ascertainable by the Debtors to have a known interest in the Jillian Assets, (ix) those parties identified by the Debtors (and their representatives) as potential purchasers of the Jillian Assets, (x) all parties to the Debtors' executory contracts and unexpired leases and (xi) those entities listed on the Debtors' Creditor Matrix and the list of the Debtors' equity interest holders of record submitted to the Court; and it is further
ORDERED that at as soon as practicable after the date this Order is entered, the Debtors shall cause notice, substantially in the form of the Publication Notice, to be published in The Wall Street Journal and the Louisville Courier-Journal; and it is further
ORDERED that service of the Notice of Auction, the Sale Motion and the proposed Sale Orders, as well as the publication of the Publication Notice, in the manner set forth in the Motion shall constitute proper, timely, adequate and sufficient notice of the Bidding Procedures, the Auction, the Sale(s) and the Sale Hearing, in accordance with Bankruptcy Rules 2002 and 6004, and no other or further notice shall be required with respect thereto; and it is further
ORDERED that nothing herein shall be deemed a consent by the Senior Lenders the Committee or the Equipment Creditors, limited solely to the extent the Equipment Creditors' secured collateral is the subject of a Sale(s), to the Sale(s) of the DB Assets, Gemini Assets, Jillian Assets, and/or any combination thereof, or affect the rights of the Senior Lenders, the Committee, or the Equipment Creditors, limited solely to the extent the Equipment Creditors' secured collateral is the subject of a Sale(s), rights to object to the Sale(s), including the Senior Lenders' and the Equipment Creditors', limited solely to the extent the Equipment Creditors' secured collateral is the subject of a Sale(s), rights under section 363(f) of the Bankruptcy Code; and it is further
ORDERED that nothing contained in this Order shall diminish or be construed to diminish any rights granted to or retained by the Senior Lenders or the Equipment Creditors pursuant to the Order (I) Authorizing Debtors in Possession to Enter Into Post-Petition Credit Agreement Pursuant to Section 364 of the Bankruptcy Code, (II) Authorizing Use of Cash Collateral Pursuant to Section 363 of the Bankruptcy Code, (III) Granting Adequate Protection Pursuant to Sections 363 and 364 of the Bankruptcy Code, and (IV) Granting Other and Additional Relief With Respect Thereto; and it is further
ORDERED that the Court shall retain jurisdiction to hear and determine all matters arising from or relating to the implementation of this Order.