FOR THE DISTRICT OF DELAWARE In re: ) Chapter 11 TPOP, LLC ... · Case 13-11831-BLS Doc 310 Filed 11/20/13 Page 5 of 11. 11. Notwithstanding the foregoing, the Debtor is not seeking

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF DELAWARE

In re: ) Chapter 11 )

TPOP, LLC,’ ) Case No. 13-11831 (BLS) )

Debtor. ) Hearing Date: December 11, 2013 at 10:00 a.m. (ET)

) Objection Deadline: December 4,2013 at 4:00 p.m. (ET)

MOTION FOR THE ENTRY OF AN ORDER APPROVING PROCEDURES FOR THE SALE, TRANSFER, AND ABANDONMENT OF DE MINIMIS ASSETS

The debtor and debtor in possession in the above-captioned case ("TPOP" or the

"Debtor") hereby submits this motion (the "Motion") for the entry of an order, substantially in

the form annexed hereto as Exhibit A, approving procedures for the sale, transfer, and

abandonment of the Debtor’s De Minimis Assets (as defined herein). In support of this Motion,

the Debtor respectfully states as follows:

JURISDICTION

1. This Court has jurisdiction over this Motion pursuant to 28 U.S.C. §§ 157

and 1334. This is a core proceeding pursuant to 28 U.S.C. § 157(b). Venue is proper in this

district pursuant to 28 U.S.C. §§ 1408 and 1409.

2. The statutory bases for the relief requested herein are sections 105(a),

363(b), 363(f) and 363(m) of title 11 of the United States Code, 11 U.S.C. §§ 101-1532 (the

"Bankruptcy Code").

The Debtor in this chapter 11 case is TPOP, LLC flk/a Metavation, LLC and the last four digits of the Debtor’s federal tax identification numbers is 5884. The location of the Debtor’s headquarters is 2250 Thunderstick Dr., Suite 1203, Lexington, KY 40505.

DOCS_DE: 190393.2 1

Case 13-11831-BLS Doc 310 Filed 11/20/13 Page 1 of 11

RELIEF REQUESTED

3. By this Motion, the Debtor respectfully requests the entry of an order

authorizing the implementation of procedures to: (a) effectuate, from time to time, sales or

transfers of surplus, obsolete, non-core, or burdensome assets (the "De Minimis Assets") in any

individual transaction or series of related transactions to a single buyer or group of related buyers

with a selling price equal to or less than $150,000 free and clear of all liens, claims, interests and

encumbrances (collectively, the "Liens") with such Liens attaching to the proceeds with the

same validity, extent and priority as had attached to the assets immediately prior to the sale or

transfer; (b) abandon a De Minimis Asset to the extent that a sale thereof cannot be

consummated at value greater than the cost of liquidating such De Minimis Asset; and (c) pay

those necessary fees and expenses incurred in the sale or abandonment of De Minimis Assets,

including, but not limited to, commission fees to agents, brokers, auctioneers, and liquidators.

BACKGROUND

4. On July 22, 2013 (the "Petition Date"), the Debtor commenced its case by

filing a voluntary petition for relief under chapter 11 of the Bankruptcy Code. The Debtor

continues in the possession of its property and has continued to operate and manage its business

as a debtor in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. No

trustee or examiner has been appointed in the Debtor’s chapter 11 case. No creditors’ committee

has been appointed in this chapter 11 case.

The Debtor has continued in possession of its property and has continued

to operate and manage its business as a debtor in possession pursuant to sections 1107(a) and

1108 of the Bankruptcy Code.

DOCS_DE: 190393.2 2


6. The factual background relating to the commencement of the chapter 11

case of Metavation is set forth in detail in the Declaration of John C. DiDonato in Support of

Metavation, LLC Petition and First Day Motions (the "DiDonato Declaration") filed on the

Petition Date.

7. On the Petition Date, the Debtor filed its Motion for Order (A) Approving

Asset Purchase Agreement and Authorizing the Sale of Assets Outside the Ordinary Course of

Business; (B) Authorizing the Sale of Assets Free and Clear of All Liens, Claims, Rights,

Encumbrances and Other Interests Pursuant to Bankruptcy Code Sections 105, 363(b), 363(f)

and 363(m); (C) Authorizing the Assumption, Assignment and Sale of Certain Executory

Contracts and Unexpired Leases Pursuant to Bankruptcy Code Sections 363 and 365; and

(D) Granting Related Relief [Docket No. 18] (the "Sale Motion").

8. On August 30, 2013, the Court approved the Sale Motion and entered the

Order (I) Approving Asset Purchase Agreement and Authorizing the Sale of Metavation, LLC’s

Assets Outside the Ordinary Course of Business, (II) Authorizing the Sale of Assets Free and

Clear of All Liens, Claims, Rights, Encumbrances and Other Interests Pursuant to Bankruptcy

Code Sections 105, 363(B), 363(F) and 363(M); (III) Authorizing the Assumption and

Assignment of Certain Executory Contracts and Unexpired Leases Pursuant to Bankruptcy Code

Section 363 and 365; and (IV) Granting Related Relief [Docket No. 216] (the "Sale Order").

Pursuant to the Sale Order, the Debtor was authorized to sell certain of its assets to Dayco

Products LLC (the "Buyer") pursuant to the terms of the asset purchase agreement executed by

the Debtor and the Buyer.

9. The Debtor is developing a comprehensive process for the sale and/or

wind down of its remaining assets. To that end, it marketed the remaining assets of the company

DOCS_DE: 190393.2 3


related to its Vassar Foundry operations and moved to reject certain executory contracts and

leases no longer beneficial to the estate. The Motion and future sale of De Minimis Assets is an

extension of and a necessary part of the Debtor’s continuing efforts to wind down the remaining

assets.

THE DE MINIMIS ASSET SALE I TRANSFER PROCEDURES

10. The Debtor proposes to sell or transfer each of the De Minimis Assets for

the highest and best offer received, taking into consideration the exigencies and circumstances in

each such sale or transfer, under the following procedures (the "De Minimis Asset Sale

Procedures"):

a. With regard to sales or transfers of the De Minimis Assets in any individual transaction or series of related transactions to a single buyer or group of related buyers with a selling price equal to or less than $25,000:

i. The Debtor is authorized to consummate such transaction(s), if the Debtor determines in the reasonable exercise of its business judgment that such sales or transfers are in the best interest of the estate, without further order of the Court or notice to any party; and

ii. Any such transaction(s) shall be free and clear of all Liens, with such Liens attaching only to the sale or transfer proceeds with the same validity, extent and priority as had attached to the De Minimis Assets immediately prior to such sale or transfer.

b. With regard to the sales or transfers of the De Minimis Assets in any individual transaction or series of related transactions to a single buyer or group of related buyers with an aggregate selling price greater than $25,000 and up to or equal to $150,000:

The Debtor is authorized to consummate such transaction(s) without further order of the Court if the Debtor determines in the reasonable exercise of its business

2 For purposes of these procedures, selling price shall refer to the Debtor’s estimate of the net proceeds of any sale transaction.

D005_DE: 190393.2 4


judgment that such sales or transfers are in the best interests of the estate, subject to the procedures set forth herein;

ii. Any such transaction(s) shall be free and clear of all Liens, with such Liens attaching only to the sale or transfer proceeds with the same validity, extent, and priority as had attached to the De Minimis Assets immediately prior to such sale or transfer;

iii. The Debtor shall give written notice of each such sale (the "Sale Notice") to (a) the Office of the United States Trustee for the District of Delaware (the "U.S. Trustee"); (b) the top 20 unsecured creditors of the Debtor; (c) those persons who have formally appeared and requested service in this proceeding pursuant to Bankruptcy Rule 2002; and (d) any party holding a Lien against the De Minimis Assets (collectively, the "Notice Parties") at least five (5) days prior to the closing of such sale or transfer;

iv. The content of the Sale Notice shall consist of (a) identification of the De Minimis Assets being sold or transferred, (b) identification of the purchaser of the assets, (c) the purchase price, and (d) the significant terms of the sale or transfer agreement;

V. If no written objections from any of the Notice Parties are filed within five (5) days after the date of receipt of such Sale Notice, then the Debtor is authorized to immediately consummate such sale or transfer;

vi. If any Notice Party files a written objection to any such sale or transfer with the Court within five (5) days after receipt of such Sale Notice, then the relevant De Minimis Asset shall only be sold or transferred upon either the consensual resolution of the objection by the parties in question or further order of the Court after notice and a hearing.

The Debtor will provide a written report to the Court, the Notice Parties, and those parties requesting notice pursuant to Rule 2002 of the Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules"), beginning with the month ending on January 31, 2014, and each month thereafter, no later than 15 days after the end of each such month, concerning any such sales made during the preceding month pursuant hereto, including the names of the purchasing parties and the types and amounts of the sales (each, a "Monthly Report").

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11. Notwithstanding the foregoing, the Debtor is not seeking the authority to

sell De Minimis Assets to "insiders," as that term is defined in section 101 of the Bankruptcy

Code. Additionally, the Debtor is mindful of its duty to maximize the value of its estate and will

use commercially reasonable efforts to market all De Minimis Assets proposed to be sold in an

effort to obtain the highest consideration for all of its assets.

12. To the extent any De Minimis Assets cannot be sold at a price greater than

the cost of liquidating such assets, the Debtor seeks authority to abandon such De Minimis

Assets in accordance with the following procedures (the "De Minimis Asset Abandonment

Procedures"):

a. The Debtor shall give written notice of the abandonment (the "Abandonment Notice") to the Notice Parties;

b. The Abandonment Notice shall contain a description in reasonable detail of the De Minimis Assets to be abandoned and the Debtor’s reasons for such abandonment;

C. If no written objections from any of the Notice Parties are submitted to the Debtor within five (5) days after the date of service of such Abandonment Notice, then the Debtor is authorized to immediately proceed with the abandonment; and

d. If a written objection from any Notice Party is submitted to the Debtor within five (5) days after service of such Abandonment Notice, then the relevant De Minimis Asset shall be abandoned only upon either the consensual resolution of the objection by the parties in question or further order of the Court after notice and a hearing.

BASIS FOR RELIEF

A. The De Minimis Asset Sale Procedures are Appropriate Under Section 363(b)

13. Section 363(b)(1) of the Bankruptcy Code provides that "[t]he trustee,

after notice and a hearing, may use, sell or lease, other than in the ordinary course of business,

property of the estate." 11 U.S.C. § 363(b)(1). Although section 363 of the Bankruptcy Code

DOCS_DE: 190393.2 6


does not specify a standard for determining when it is appropriate for a court to authorize the use,

sale or lease of property of the estate, bankruptcy courts routinely authorize sales of a debtor’s

assets if such sale is based upon the sound business judgment of the debtor. See, e.g., Meyers v.

Martin (In re Martin), 91 F.3d 389, 395 (3d Cir. 1996); In re Montgomery Ward Holding Corp.,

242 B.R. 147, 153 (D. Del. 1999); In re Delaware & Hudson Ry. Co., 124 B.R. 169, 176 (D. Del.

1991); In re Trans WorldAirlines, Inc., No. 01-00056,2001 Bankr. LEXIS 980, at *29 (Bankr.

D. Del. Apr. 2, 2001).

14. The Debtor currently possesses (and may identify in the future) certain De

Minimis Assets that it wants to sell or transfer because such assets are no longer necessary to the

estate. To defray any operational, carrying, or storage expenses associated with these assets, the

Debtor has determined in its business judgment that it is in the best interests of the estate to sell

or transfer the De Minimis Assets. To that end, the Debtor has proposed the De Minimis Asset

Sale Procedures, whereby it can consummate the sale or effectuate the transfer of De Minimis

Assets during the pendency of this chapter 11 case. Under these proposed procedures, parties

with an interest in the Debtor’s assets are fully protected by the opportunity to object and to

attend a hearing, if desired.

B. The Dc Minimis Asset Sale Procedures are Appropriate Under Section 363(f)

15. Section 363(f) of the Bankruptcy Code permits a debtor to sell property

free and clear of another party’s interest in the property if: (a) applicable nonbankruptcy law

permits such a "free and clear" sale; (b) the holder of the interest consents; (c) the interest is a

lien and the sales price of the property exceeds the value of all liens on the property; (d) the

interest is in bonajIde dispute; or (e) the holder of the interest could be compelled in a legal or

equitable proceeding to accept a monetary satisfaction of its interest.

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16. The Debtor proposes to sell or transfer the De Minimis Assets in a

commercially reasonable manner and expect that the value of the proceeds from such sales or

transfers will fairly reflect the value of the property sold. The Debtor further proposes that any

party with a Lien on the De Minimis Assets sold or transferred pursuant to this Motion shall have

a corresponding security interest in the proceeds of such sale or transfer. Moreover, the Debtor

proposes that the absence of any objection to the entry of the order approving this Motion, along

with the absence of any timely objection under the De Minimis Asset Sale Procedures, in each

case following the provision of notice, be deemed "consent" to any sales or transfers pursuant to

the Order within the meaning of section 362(f)(2) of the Bankruptcy Code. As such, the

requirements of section 363(f) of the Bankruptcy Code would be satisfied for any proposed sales

or transfers free and clear of liens, encumbrances, and other interests.

C. The Dc Minimis Asset Abandonment Procedures are Appropriate Under Section 554(a)

17. Section 554(a) of the Bankruptcy Code provides that "[a]fler notice and a

hearing, the trustee may abandon any property of the estate that is burdensome to the estate or

that is of inconsequential value and benefit to the estate." 11 U.S.C. § 554(a). The Debtor

expects to take all reasonable steps to sell De Minimis Assets not needed in its operations. The

costs associated with sales of certain De Minimis Assets, however, may exceed any possible

proceeds thereof. The inability to consummate a commercially reasonable sale of De Minimis

Assets would indicate that these De Minimis Assets have no meaningful monetary value to the

Debtor’s estate. Further, the costs of storing and maintaining such De Minimis Assets may

burden the Debtor’s estate. Accordingly, the Debtor contends that, in such circumstances, the

abandonment of De Minimis Assets pursuant to the De Minimis Asset Abandonment

Procedures is in the best interest of the Debtor’s estate.

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18. In light of the demonstrable benefits of streamlined procedures to sell,

transfer, or abandon De Minimis Assets, courts in this district have approved similar procedures

in other chapter 11 cases. See, e.g., Friendly Ice Cream Corporation, et al. (KG) (Bankr. D. Del.

October 24, 2011) (approving de minimis sale procedures for sale of assets up to $500,000);

Flying JInc., et al. (MFW) (Bankr. D. Del. February 9, 2009) (approving de minimis sale

procedures for sale of assets of up to $5,000,000); In re Meridian Auto. Sys. Composites

Operations, Inc., Case No. 05-11168 (MFW) (Bankr. D. Del. August 11, 2005) (selling

procedures authorized for sales of up to $1,000,000); In re Dura Auto. Sys., Inc., No. 06-11202

(KJC) (Bankr. D. Del. Apr. 25, 2007) (selling procedures authorized for sales of up to

$2,500,000 and abandonment procedures); See also In re Hines Horticulture, Inc., 08-11922

(KJC) (Bankr. D. Del. Dec. 12, 2008) (selling procedures authorized for sales up to $100,000);

In re Leiner Health Prods. Inc., No. 08-10446 (KJC) (Bankr. D. Del. Apr. 4, 2008) (selling

procedures authorized for sales of up to $500,000 and abandonment procedures); In re Buffets

Holdings, Inc., No. 08-10141 (MFW) (Bankr. D. Del. Feb. 13, 2008) (selling procedures

authorized for sales up to $200,000); In re Advanced Marketing Servs., Inc., No. 06-11480

(CSS) (Bankr. D. Del. June 6, 2007) (approving sale and abandonment procedures for the

sale of assets up to $100,000); In re New Century TRS Holdings, Inc., No. 07-10416 (KJC)

(Bankr. D. Del. May 16, 2007) (approving sale procedures for the sale of assets up to

$100,000); In re Foamex Intl, Inc., Case No. 05-12685 (PJW) (Bankr. D. Del. Nov. 17, 2005)

(selling procedures authorized for sales of less than $250,000); In re Birch Telecom, Inc.,

Case No. 05-12237 (PJW) (Bankr. D. Del. Nov. 4, 2005) (selling procedures authorized for

sales of up to $100,000). For the foregoing reasons, the Debtor believes that granting the

relief requested herein is appropriate and in the best interests of its estate and creditors.

D005_DE: 190393.2 9


RESERVATION OF RIGHTS

19. Nothing contained herein is intended or should be construed as an

admission of the validity of any claim or Lien against the Debtor, a waiver of the Debtor’s right

to dispute any claim or Lien, or an approval or assumption of any agreement, contract or lease

under section 365 of the Bankruptcy Code. The Debtor expressly reserves its right to contest any

claim or Lien with respect to the De Minimis Assets in accordance with applicable non-

bankruptcy law.

NO PRIOR REQUEST

20. No prior motion for the relief requested herein has been made to this or

any other court.

NOTICE

21. Notice of this Motion has been given to the following parties: (i) the

Office of the United States Trustee; (ii) the top 20 unsecured creditors of the Debtor; and (iii)

those persons who have requested notice pursuant to Bankruptcy Rule 2002. The Debtor

submits that, in light of the nature of the relief requested, no other or further notice be given.

[Remainder ofpage intentionally left blank]

DOCS_DE: 190393.2 10


WHEREFORE, for the reasons set forth herein, the Debtor respectfully requests

that the Court enter an order, substantially in the form annexed hereto as Exhibit A, granting the

relief requested herein and granting such other and further relief as the Court deems appropriate.

Dated: November 20, 2013 PACHULSKI STANG ZIEHL &JONES LLP

üv\ Laura Davis Jones (Bar No. 2436) David M. Bertenthal (CA Bar No. 167624) Timothy P. Cairns (Bar No. 4228) Cohn R. Robinson (Bar No. 5524) 919 North Market Street, 17th Floor P.O. Box 8705 Wilmington, DE 19899-8705 (Courier 19801) Telephone: (302) 652-4100 Facsimile: (302) 652-4400 E-mail: ljonespszjlaw.com

[email protected] [email protected] [email protected]

Counsel to Debtor and Debtor in Possession

DOCS_DE:190393.2 11




In Fe: ) Chapter 11 )

TPOP, LLC,’ ) Case No. 13-11831 (BLS) )

Debtor. ) Objection Deadline: December 4, 2013 at 4:00 p.m. (ET)

) Hearing Date: December 11, 2013 at 10:00 a.m. (ET)

NOTICE OF MOTION FOR THE ENTRY OF AN ORDER APPROVING PROCEDURES FOR THE SALE, TRANSFER,

AND ABANDONMENT OF DE MINIMIS ASSETS

TO: (i) the Office of the United States Trustee; (ii) the top 20 unsecured creditors of the Debtor; and (iii) those persons who have requested notice pursuant to Bankruptcy Rule 2002.

PLEASE TAKE NOTICE that the above-captioned debtor and debtor in

possession (the "Debtor") filed the attached Motion for the Entry of an Order Approving

Procedures for the Sale, Transfer, and Abandonment of De Minimis Assets (the "Motion") with

the United States Bankruptcy Court for the District of Delaware, 824 Market Street, Wilmington,

Delaware 19801 (the "Bankruptcy Court").

PLEASE TAKE FURTHER NOTICE that objections and responses to the

Motion, if any, must be in writing and filed with the Bankruptcy Court no later than 4:00 p.m.

prevailing Eastern time on December 4, 2013.

PLEASE TAKE FURTHER NOTICE that at the same time, you must also

serve a copy of the response or objection upon: (i) counsel to the Debtors: Pachulski Stang Ziehi

& Jones LLP, 919 North Market Street, 17th Floor, P.O. Box 8705, Wilmington, DE 19899-8705

(Courier 19801), Attn: Laura Davis Jones, Esq.; and (ii) the Office of the United States Trustee,

The Debtor in this chapter 11 case is TPOP, LLC f/k/a Metavation, LLC and the last four digits of the Debtor’s federal tax identification numbers is 5884. The location of the Debtor’s headquarters is 2250 Thunderstick Dr., Suite 1203, Lexington, KY 40505.

DOCS_DE:190435. 1 73864/002

Case 13-11831-BLS Doc 310-1 Filed 11/20/13 Page 1 of 2

J. Caleb Boggs Federal Building, 844 N. King Street, Suite 2207, Lock Box 35, Wilmington, DE

19801, Attn: Jane Leamy, Esq.

PLEASE TAKE FURTHER NOTICE THAT, IF OBJECTIONS OR

RESPONSES ARE TIMELY FILED AND SERVED IN ACCORDANCE WITH THIS

NOTICE, A HEARING ON THE MOTION WILL BE HELD BEFORE THE HONORABLE

BRENDAN SHANNON, UNITED STATES BANKRUPTCY COURT, 824 MARKET

STREET, 6thi FLOOR, COURTROOM NO. 1, WILMINGTON, DELAWARE 19801 ON

DECEMBER 11, 2013 AT 10:00 A.M. (PREVAILING EASTERN TIME).

PLEASE TAKE FURTHER NOTICE THAT IF YOU FAIL TO RESPOND

IN ACCORDANCE WITH THIS NOTICE, THE COURT MAY GRANT THE RELIEF

REQUESTED BY THE MOTION WITHOUT FURTHER NOTICE OR HEARING.

Dated: November 20, 2013 PACHULSKI STANG ZIEHL & JONES LLP

Laura Davis Davis Jones (Bar No. 2436) David M. Bertenthal (CA Bar No. 167624) Timothy P. Cairns (Bar No. 4228) Cohn R. Robinson (Bar No. 5524) 919 North Market Street, 17 Floor P.O. Box 8705 Wilmington, Delaware 19899-8705 (Courier 19801) Telephone: 302-652-4100 Facsimile: 302-652-4400 email: [email protected]

[email protected] [email protected] [email protected]

[Proposed] Counsel for Debtor and Debtor in Possession

2

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In re: ) Chapter 11

TPOP, LLC,’ ) Case No. 13-11831 (BLS)

Debtor. Related Docket No. -

ORDER APPROVING PROCEDURES FOR THE SALE, TRANSFER, AND ABANDONMENT OF DE MINIMIS ASSETS

Upon the Motion for the Entry of an Order Approving Procedures for the Sale,

Transfer, and Abandonment of De Minimis Assets (the "Motion") 2 of the above-captioned debtor

and debtor in possession (the "Debtor"); and it appearing that the relief requested is in the best

interests of Debtor’s estate and creditors and other parties in interest; and the Court having

jurisdiction to consider the Motion and the relief requested therein pursuant to 28 U.S.C. §§ 157

and 1334; and consideration of the Motion and the relief requested therein being a core

proceeding pursuant to 28 U.S.C. § 157(b); and venue being proper before this Court pursuant to

28 U.S.C. §§ 1408 and 1409; and notice of the Motion having been adequate and appropriate

under the circumstances; and after due deliberation and sufficient cause appearing therefor:

The Debtor in this chapter 11 case is TPOP, LLC f/k/a Metavation, LLC and the last four digits of the Debtor’s federal tax identification numbers is 5884. The location of the Debtor’s headquarters is 2250 Thunderstick Dr., Suite 1203, Lexington, KY 40505. 2 Capitalized terms used but not otherwise herein shall have the meaning set for in the Motion.

DOCS_DE: 190393.2


IT IS HEREBY ORDERED THAT:

1. The Motion is granted.

2. Pursuant to section 363(b) of the Bankruptcy Code, the Debtor is

authorized to sell or transfer the De Minimis Assets in accordance with the following procedures

(the "De Minimis Assert Sale Procedures"):

a. With regard to sales or transfers of the De Minimis Assets in any individual transaction or series of related transactions to a single buyer or group of related buyers with a selling price equal to or less than $25,000:

i. The Debtor is authorized to consummate such transaction(s), if the Debtor determines in the reasonable exercise of its business judgment that such sales or transfers are in the best interest of the estate, without further order of the Court or notice to any party; and

ii. Any such transaction(s) shall be free and clear of all Liens, with such Liens attaching only to the sale or transfer proceeds with the same validity, extent and priority as had attached to the De Minimis Assets immediately prior to such sale or transfer;

b. With regard to the sales or transfers of the De Minimis Assets in any individual transaction or series of related transactions to a single buyer or group of related buyers with an aggregate selling price greater than $25,000 and up to or equal to $150,000:

i. The Debtor is authorized to consummate such transaction(s) without further order of the Court if the Debtor determines in the reasonable exercise of its business judgment that such sales or transfers are in the best interests of the estate, subject to the procedures set forth herein;

ii. Any such transaction(s) shall be free and clear of all Liens, with such Liens attaching only to the sale or transfer proceeds with the same validity, extent, and priority as had attached to the De Minimis Assets immediately prior to such sale or transfer;

For purposes of these procedures, selling price shall refer to the Debtor’s estimate of the net proceeds of any sale transaction.

DOCS_DE: 190393.2 2


iii. The Debtor shall give written notice of each such sale (the "Sale Notice") to (a) the Office of the United States Trustee for the District of Delaware (the "U.S. Trustee"); (b) the top 20 unsecured creditors of the Debtor; (c) those persons who have formally appeared and requested service in this proceeding pursuant to Bankruptcy Rule 2002 and (d) any party holding a Lien against the De Minimis Assets (collectively, the "Notice Parties") at least five (5) days prior to the closing of such sale or transfer;

iv. The content of the Sale Notice shall consist of (a) identification of the De Minimis Assets being sold or transferred, (b) identification of the purchaser of the assets, (c) the purchase price, and (d) the significant terms of the sale or transfer agreement;

V. If no written objections from any of the Notice Parties are filed within five (5) days after the date of receipt of such Sale Notice, then the Debtor is authorized to immediately consummate such sale or transfer;

vi. If any Notice Party files a written objection to any such sale or transfer with the Court within five (5) days after receipt of such Sale Notice, then the relevant De Minimis Asset shall only be sold or transferred upon either the consensual resolution of the objection by the parties in question or further order of the Court after notice and a hearing.

C. The Debtor will provide a written report to the Court, the Notice Parties, and those parties requesting notice pursuant to Rule 2002 of the Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules"), beginning with the month ending on January 31, 2014, and each month thereafter, no later than 15 days after the end of each such month, concerning any such sales made during the preceding month pursuant hereto, including the names of the purchasing parties and the types and amounts of the sales (each, a "Monthly Report").

3. Sales to "insiders," as that term is defined in section 101 of the

Bankruptcy Code, are not covered by this Order.

4. No objection to the relief requested in the Motion combined with no

timely objection to the sale or transfer of the De Minimis Assets in accordance with the terms of

D005_DE: 190393.2


this Order shall be determined to be "consent’ ’ to such sale or transfer within the meaning of

section 363(f)(2) of the Bankruptcy Code.

5. The Debtor is authorized pursuant to section 554(a) of the Bankruptcy

Code to abandon De Minimis Assets in accordance with the following procedures (the "De

Minimis Asset Abandonment Procedures"):

a. The Debtor shall give written notice of the abandonment (the "Abandonment Notice") to the Notice Parties;

b. The Abandonment Notice shall contain a description in reasonable detail of the De Minimis Assets to be abandoned and the Debtor’s reasons for such abandonment;

C. If no written objections from any of the Notice Parties are submitted to the Debtor within five (5) days after the date of service of such Abandonment Notice, then the Debtor is authorized to immediately proceed with the abandonment; and

d. If a written objection from any Notice Party is submitted to the Debtor within five (5) days after service of such Abandonment Notice, then the relevant De Minimis Asset shall be abandoned only upon either the consensual resolution of the objection by the parties in question or further order of the Court after notice and a hearing.

6. The Debtor is authorized to take all actions necessary or appropriate to

effectuate the relief granted pursuant to this order in accordance with the Motion, including

paying those necessary fees and expenses incurred in the sale or abandonment of De Minimis

Assets (including, but not limited to, commission fees to agents, brokers, auctioneers and

liquidators).

7. Nothing contained herein shall be construed as an admission of the

validity of any claim or Lien against the Debtor, a waiver of the Debtor’s rights to dispute any

claim or Lien, or an approval or assumption of any agreement, contract or lease under section

365 of the Bankruptcy Code. The Debtor’s right to contest any claim or Lien with respect to the

DOCS_DE:190393.2 4


De Minimis Assets in accordance with applicable non-bankruptcy law are hereby expressly

reserved.

8. The terms and conditions of this Order shall be immediately effective and

enforceable upon entry of the Order.

9. The Court retains jurisdiction with respect to all matters arising from or

related to the implementation of this Order.

Dated: ,2013 HONORABLE BRENDAN L. SHANNON UNITED STATES BANKRUPTCY JUDGE

DOCS_DE: 190393.2




In re:

TPOP, LLC, 1

)

)

)

)

Debtor. ) )

Chapter 11

Case No. 13-11831 (BLS)

CERTIFICATE OF SERVICE

I, Cohn R. Robinson, hereby certify that on the 20th day of November, 2013, I

caused a copy of the following document(s) to be served on the individuals on the attached

service list(s), in the manner indicated thereon:

Notice of Motion for the Entry of an Order Approving Procedures for the Sale, Transfer, and Abandonment of De Minimis Assets; and

Motion for the Entry of an Order Approving Procedures for the Sale, Transfer, and Abandonment of De Minimis Assets; and

[Proposed] Order Approving Procedures for the Sale, Transfer, and Abandonment of De Minimis Assets

Cohn R. Robinson (Bar No. 5524)

’The Debtor in this chapter 11 case is TPOP, LLC f/k/a Metavation, LLC and the last four digits of the Debtor’s federal tax identification numbers is 5884. The location of the Debtor’s headquarters is 2250 Thunderstick Dr., Suite 1203, Lexington, KY 40505.

DOCS_DE: 190435.1 73864/002


Metavation 2002 Service List (First Class) Lead Case No. 12-13262 Document No. 188621 02� INTEROFFICE MAIL 11� HAND DELIVERY 44� FIRST CLASS MAIL 01� FOREIGN FIRST CLASS

(Counsel to Debtor and Debtor in Possession) Laura Davis Jones, Esquire Timothy P. Cairns, Esquire Cohn R. Robinson, Esquire Pachulski Stang Ziehl & Jones, LLP 919 N. Market Street, 17th Floor Wilmington, DE 19801

INTEROFFICE MAIL (Counsel to Debtor and Debtor in Possession) Jonathan J. Kim, Esquire Pachulski Stang Ziehi & Jones, LLP 10100 Santa Monica Boulevard, 13th Floor Los Angeles, CA 90067

INTEROFFICE MAIL (Counsel to Debtor and Debtor in Possession) David M. Bertenthal, Esquire Pachuiski Stang Ziehl & Jones, LLP 150 California Street, 15th Floor San Francisco, CA 94111

HAND DELIVERY (United States Trustee) Jane M. Leamy, Esquire Office of the United States Trustee J. Caleb Boggs Federal Building 844 King Street, Suite 2207 Wilmington, DE 19801

HAND DELIVERY Zilllah A. Frampton, Bankruptcy Administrator Delaware Division of Revenue 820 N. French St. CSOB 8th Floor Wilmington, DE 19801

HAND DELIVERY (United States Attorney) Ellen W. Slights, Esquire United States Attorney’s Office District of Delaware 1007 N. Orange Street, Suite 700 Wilmington, DE 19801

HAND DELIVERY (Counsel to Official Committee of Unsecured Creditors) Matthew P. Ward, Esquire Steven K. Kortanek, Esquire Mark L. Desgrosseihhiers, Esquire Womble Carlyle Sandridge & Rice, LLP 222 Delaware Avenue, Suite 1501 Wilmington, DE 19801

HAND DELIVERY (Counsel to Ford Motor Company) Karen C. Bifferato, Esquire Connolly Gallgaher LLP 1000 West Street, Suite 1400 Wilmington, DE 19801

HAND DELIVERY (Counsel to Dayco Products, LLC) Anthony W. Clark, Esquire Skadden Arps, Slate, Meagher & Flom LLP & Affiliates One Rodney Square P.O. Box 636 Wilmington, DE 19899


HAND DELIVERY (Counsel to Wells Fargo Capital Finance, LLC) David M. Powlen, Esquire Kevin G. Collins, Esquire Barnes & Thornburg LLP 1000 N. West Street, Suite 1500 Wilmington, DE 19801

HAND DELIVERY (Counsel to the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union "United Steelworkers’) Susan E. Kaufman, Esquire Cooch and Taylor, P.A. 1000 West Street, 10th Floor P.O.Box 1680 The Brandywine Building Wilmington, DE 19899

HAND DELIVERY (Counsel to Boston Financial Group) Stuart M. Brown, Esquire R. Craig Martin, Esquire DLA Piper LLP (US) 1201 North Market Street Suite 2100 Wilmington, Delaware 19801

HAND DELIVERY (Counsel to City of Hillsdale, City of Mt. Pleasant and City of Vassar) Karen M. Grivner, Esquire Clark Hill Thorp Reed 824 N. Market Street, Suite 710 Wilmington, DE 19801

HAND DELIVERY (Counsel to Hillsdale Salaried Pension Plan and Hillsdale Hourly Pension Plan and Revstone Castings Fairfield GMP Local 359 Pension Plan and the Fourslides Inc. Pension Plan (collectively, the "Fairfield and the Fourslides Plans’)) Joel A. Waite, Esquire Kenneth J. Enos, Esquire Young Conaway Stargatt & Taylor LLP Rodney Square 1000 North King Street Wilmington, DE 19801

FIRST CLASS MAIL (United Stated Attorney General) Eric H. Holder, Jr., Esquire Office of the US Attorney General U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, DC 20530

FIRST CLASS MAIL Secretary of State Division of Corporations Franchise Tax P.O. Box 898 Dover, DE 19903

FIRST CLASS MAIL Delaware Secretary of Treasury 820 Silver Lake Blvd., Suite 100 Dover, DE 19904

FIRST CLASS MAIL Office of General Counsel U.S. Department of the Treasury 1500 Pennsylvania Avenue, N.W. Washington, DC 20220

FIRST CLASS MAIL Securities & Exchange Commission Office of General Counsel-Bankruptcy 100 F. Street, NE Washington, DC 20549


FIRST CLASS MAIL Andrew Calamari, Regional Director New York Regional Office Securities & Exchange Commission 3 World Financial Center, Suite 400 New York, NY 10281

FIRST CLASS MAIL Internal Revenue Service Centralized Insolvency Operation P.O. Box 7346 2970 Market Street Mail Stop 5-030.133 Philadelphia, PA 19101

FIRST CLASS MAIL Sean Lev, Esquire Office of General Counsel Federal Communications Commission 445 12th Street, S.W. Washington, DC 20005

FIRST CLASS MAIL Cassandra B. Caverly, Esquire Desiree Arnador, Esquire M. Katie Burgess, Esquire Pension Benefit Guaranty Corporation Office of the Chief Counsel 1200 K. Street, N.W. Washington, DC 20005

FIRST CLASS MAIL (Counsel to General Motors LLC) Aaron M. Silver, Esquire Honigman Miller Schwartz and Cohn LLP 2290 First National Building 660 Woodward Avenue, Suite 229.0 Detroit, MI 48226

FIRST CLASS MAIL (Counsel to Chrysler Group LLC) Sheryl L. Toby, Esquire Dykema Gossett PLLC 39577 Woodward Ave., Suite 300 Bloomfield Hills, MI 48304

FIRST CLASS MAIL (Counsel to Dayco Products, LLC and Dayco Products S.A. de C. V, the stalking horse purchaser for the Debtor’s assets) J. Eric Ivester, Esquire Skadden Arps, Slate, Meagher & Flom LLP & Affiliates 4 Times Square New York, NY 10036

FIRST CLASS MAIL (Counsel to Dayco Products, LLC and Dayco Products S.A. de C. V., the stalking horse purchaser for the Debtor’s assets) Christopher M. Dressel, Esquire Skadden Arps, Slate, Meagher & Flom LLP & Affiliates 155 N. Wacker Drive Chicago, IL 60606

FIRST CLASS MAIL (Counsel to Wells Fargo Capital Finance) Jonathan N. Helfat, Esquire Otterbourg, Steindler, Houston & Rosen, P.C. 230 Park Avenue New York, NY 10169

FIRST CLASS MAIL (Counsel to Ford Motor Company) Stephen S. LaPlante, Esq Jonathan S. Green, Esquire Miller, Canfield, Paddock and Stone, P.L.C. 150 W Jefferson Avenue, Suite 2500 Detroit, MI 48226

FIRST CLASS MAIL (Counsel to Thomas E. Perez, Secretary of Labor, US Department of Labor) Matthew M. Scheff, Esquire Office of the Solicitor United States Department of Labor 1240 E. 9th Street, Room 881 Cleveland, OH 44199


FIRST CLASS MAIL (Creditor) David R. Jury, Esquire Associate General Counsel United Steelworkers Five Gateway Center, Room 807 Pittsburgh, PA 15222

FIRST CLASS MAIL (Counsel to William L. West, Custodial Trustee of the EP Custodial Trust) M. Colette Gibbons, Esquire Ice Miller LLP 600 Superior Avenue East, Suite 1701 Cleveland, OH 44114

FIRST CLASS MAIL (Counsel to City of Hillsdale, City of Mt. Pleasant and City of Vassar) Sandra S. Hamilton, Esquire Clark Hill PLC 200 Ottawa Avenue NW, Ste. 500 Grand Rapids, MI 49503

FIRST CLASS MAIL (Counsel to Debtor and Debtor in Possession) Stephen M. Gross, Esquire McDonald Hopkins PLC 39533 Woodward Ave., Suite 318 Bloomfield Hills, MI 48304

FIRST CLASS MAIL (Counsel to Boston Financial Group) Gregg M. Galardi, Esquire Gabriella Zborovsky, Esquire DLA Piper LLP (US) 1251 Avenue of the Americas, 27th Floor New York, NY 10020

FIRST CLASS MAIL (Counsel to Hillsdale Salaried Pension Plan and Hillsdale Hourly Pension Plan and Revstone Castings Fairfield GMP Local 359 Pension Plan and the Fourslides Inc. Pension Plan (collectively, the "Fairfield and the Fourslides Plans")) Dennis J. Connolly, Esquire Kevin M. Hembree, Esquire Alston & Bird LLP One Atlantic Center 1201 West Peachtree Street Atlanta, GA 30309-3424

FIRST CLASS MAIL (Counsel to Automated Logistics Systems) Kevin N. Summers, Esquire Dean & Fulkerson, P.C. 801 W. Big Beaver Road, Suite 500 Troy, MI 48084

FIRST CLASS MAIL (Counsel to Warren Broach & Machine Co.) Craig S. Schoenherr, Sr., Esquire O’Reilly Rancilio P.C. 12900 Hall Road, Suite 350 Sterling Heights, MI 48313-1151

FIRST CLASS MAIL (Fee Examiner) John F. Theil, Esquire Stuart, Maue, Mitchell & James Ltd. 3840 McKelvey Road St. Louis, MO 63044

FIRST CLASS MAIL (Top 20) Loeb Lorman Metals Attn: Bruce Loeb 1111 S. 10th Street Watertown, WI 53094


FIRST CLASS MAIL FIRST CLASS MAIL (Top 20) (Top 20) NETL[NK Trostel Attn: Amarish Kapadia Attn: Larry Brown 999 Tech Row 901 Maxwell Street Madison Heights, MI 48071 Lake Geneva, WI 53147

FIRST CLASS MAIL FIRST CLASS MAIL (Top 20) (Top 20) Osco Industries, Inc. Central Michigan Staffing Attn: Tom Kayser Attn: Account Manager (Metavation) 1 11h & Chillicothe Street 605 N. Mission Street P0 Box 1388 Mt. Pleasant, MI 48858 Portsmouth, OH 45662

FIRST CLASS MAIL FIRST CLASS MAIL (Top 20) (Top 20) City of Vassar Automated Logistics System Attn: City Council Attn: Joe Parker 287 E. Huron 3517 Scheele Drive Vassar, MI 48768 Jackson, MI 49202

FIRST CLASS MAIL FIRST CLASS MAIL (Top 20) (Top 20) Internal Revenue Service Dauber Company, Inc. Centralized Insolvency Operation do Ronald B. Rich P.O. Box 7346 30655 Nothwestern Hwy. Philadelphia, PA 19101-7346 Farmington Hills, MI 48334

FIRST CLASS MAIL FIRST CLASS MAIL (Top 20) (Top 20) A&B Machine Inc. Tonawanda Coke Corp. Attn: Accounts Receivable Manager Attn: Colleen Crane 2040 Commerce Drive P.O. Box 5007 Sidney, OH 45365 Tonawanda, NY 14151-5007

FIRST CLASS MAIL FIRST CLASS MAIL (Top 20) (Top 20) County of Tuscola City of Mt. Pleasant Attn: Patricia Donovan-Gray, Treasurer Attn: Nancy Ridley 125 W. Lincoln Street Suite 300 320 West Broadway Caro, MI 48723 Mt. Pleasant, MI 48858


FIRST CLASS MAIL (Top 20) Fortech Products, Inc. Attn: Accounts Receivable Manager 7600 Kensington Ct. Brighton, MI 48116

FIRST CLASS MAIL (Top 20) Peoplelink, LLC Attn: Account Manager (Metavation) 431 E Colfax Ave, Suite 200 South Bend, IN 46617

FIRST CLASS MAIL (Top 20) Chainworks, Inc. Attn: Accounts Receivable Manager 1031 S MAIN ST Plymouth, MI 48170

FIRST CLASS MAIL (Top 20) DTE Energy Attn: Audrey Anderson One Energy Plaza 2120 WCB Detroit, MI 48226

FIRST CLASS MAIL (Top 20) Standard Electric Attn: Accounts Receivable Manager 2650 Trautner Dr P.O. Box 5289 Saginaw, MI 48603-0289

FIRST CLASS MAIL (Top 20) ManpowerGroup Attn: Melissa J. Koch 100 Manpower Place Milwaukee, WI 53212

FOREIGN FIRST CLASS (Top 20) TFT Global Inc. Attn: Legal Dept. 35 Spruce St. Tillsonburg, ON N4G 5C4 CANADA


Documents

FOR THE DISTRICT OF DELAWARE In re: ) Chapter 11 TPOP, LLC ... · Case 13-11831-BLS Doc 310 Filed 11/20/13 Page 5 of 11. 11. Notwithstanding the foregoing, the Debtor is not seeking