MOBITV, INC., Et Al., Debtors.1 Chapter 11 Case No. 21
Total Page：16
File Type：pdf, Size：1020Kb
Case 21-10457-LSS Doc 292 Filed 05/21/21 Page 1 of 37 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE Chapter 11 In re: Case No. 21-10457 (LSS) MOBITV, INC., et al., Jointly Administe red 1 Debtors. Related Docket Nos. 73 and 164 ORDER (A) APPROVING THE SALE OF SUBSTANTIALLY ALL OF THE DEBTORS’ ASSETS FREE AND CLEAR OF ALL LIENS, CLAIMS, INTERESTS, AND ENCUMBRANCES AND (B) APPROVING THE ASSUMPTION AND ASSIGNMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES Upon the motion [Docket No. 73] (the “Sale Motion”)2 of the above-captioned debtors and debtors in possession (together, the “Debtors”) in these chapter 11 cases (the “Chapter 11 Cases”) for entry of an order (the “Sale Order”) (a) authorizing the sale of substantially all of the Debtors’ assets free and clear of all liens, claims, interests, and other encumbrances, other than assumed liabilities, to the party submitting the highest or otherwise best bid, (b) authorizing the assumption and assignment of certain executory contracts and unexpired leases, and (c) granting certain related relief, all as more fully described in the Sale Motion; and the Court having entered an order [Docket No. 164] (the “Bidding Procedures Order”) approving the Bidding Procedures; and the Debtors having conducted an Auction on May 11-12, 2021 pursuant to the Bidding Procedures and Bidding Procedures Order; and the Debtors having determined that the bid submitted by TiVo Corporation, 1 The Debtors in these chapter 11 cases and the last four digits of each Debtor’s U.S. tax identification number are as follows: MobiTV, Inc. (2422) and MobiTV Service Corporation (8357). The Debtors’ mailing address is 1900 Powell Street, 9th Floor, Emeryville, CA 94608. 2 Capitalized terms used but not defined herein shall have the meanings set forth in the Sale Motion or the Purchase Agreement, as applicable; provided, however, no capitalized terms used herein shall in any way be modified, amended or supplemented in the Purchase Agreement after this Order becomes final. DOCS_SF:105536.6 Case 21-10457-LSS Doc 292 Filed 05/21/21 Page 2 of 37 a Delaware Corporation (“Purchaser”) as set forth in the asset purchase agreement attached hereto as Exhibit A (the “Purchase Agreement”) is the highest or otherwise best offer for the Purchased Assets as set forth in the Purchase Agreement; and the Court having conducted a sale hearing on May 21, 2021 (the “Sale Hearing”) to consider approval of the sale of the Purchased Assets to Purchaser pursuant to the terms of the Purchase Agreement (the “Sale”); and all parties- in- inte r e s t having been heard or had the opportunity to be heard regarding the approval of the Sale, the Purchase Agreement and the Transactions contemplated thereby; and it appearing that due notice of the Sale Motion, the Purchase Agreement, the Bidding Procedures Order, and the Auction has been provided; and upon the Sale Motion, the declaration of Kevin B. Lenhart in support of the Sale Motion [Docket No. 269] (the “TiVo Declaration”), the declaration of Chris Tennenbaum in support of the Sale Motion [Docket No. 255] (the “Tennenbaum Declaration”), the declaration of Terri Stevens in support of the Sale Motion [Docket No. 254] (the “Stevens Declaration”), and all other supporting documentation filed in connection therewith; and the Court having reviewed and considered the Sale Motion and any objections or responses thereto; and upon the statements and arguments of counsel made, and the evidence adduced in support of the relief requested by the Debtors at the Sale Hearing and the entire record of the Sale Hearing and the full record of the Chapter 11 Cases; and it appearing that the Court has jurisdiction over this matter; and the Court having determined that the relief sought in the Sale Motion is in the best interests of the Debtors, their estates, their creditors, and all parties-in-interest and that the legal and factual bases set forth in the Sale Motion and at the Sale Hearing establish just cause for the relief granted herein; and after due deliberation and sufficient cause appearing therefor, 2 DOCS_SF:105536.6 Case 21-10457-LSS Doc 292 Filed 05/21/21 Page 3 of 37 IT IS HEREBY FOUND AND DETERMINED THAT:3 A. Jurisdiction and Venue. The Court has jurisdiction over this matter and over the property of the Debtors and their bankruptcy estates pursuant to 28 U.S.C. §§ 157(a) and 1334. This matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2). Venue of the Chapter 11 Cases and the Sale Motion is proper pursuant to 28 U.S.C. §§ 1408 and 1409. B. Statutory Predicates. The statutory predicates for the relief herein are sections 105, 363, and 365 of Title 11 of the United States Code (the “Bankruptcy Code”) and Rules 2002, 6004, 6006, and 9007 and the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”). C. Notice. Proper, timely, adequate, and sufficient notice of the Sale Motion and the relief requested therein, the Auction, the Sale, the Sale Hearing, the purchase of the Purchased Assets and the assumption of the Assumed Liabilities, the assumption and assignment of the Transferred Contracts, the Transition Services Agreement, and all other related transactions described in the Purchase Agreement (all such transactions being collectively referred to as the “Transactions”), has been provided in accordance with sections 102(1) and 363 of the Bankruptcy Code and Bankruptcy Rules 2002, 6004, 6006, and 9007 and in compliance with the Bidding Procedures Order, and such notice was good, sufficient, and appropriate under the particular circumstances. No other or further notice of the Sale Motion, the relief requested therein and all matters relating thereto, the Auction, the Sale, the Sale Hearing, the Transactions or entry of this Sale Order is or shall be required. D. Assignment Notices. The Debtors have filed and served assignment notices (the “Assignment Notices”) upon all Contract Counterparties to all Transferred Contracts notifying 3 The findings and conclusions set forth herein constitute the Court’s findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052, made applicable to this proceeding pursuant to Bankruptcy Rule 9014. Findings of fact shall be construed as conclusions of law and conclusions of law shall be construed as findings of fact when appropriate. 3 DOCS_SF:105536.6 Case 21-10457-LSS Doc 292 Filed 05/21/21 Page 4 of 37 such parties that the Debtors seek to assign such contracts on the Closing Date as provided in the Purchase Agreement. E. Opportunity to Object and Bid. On March 15, 2021, the Office of the United States Trustee appointed ATEME, Inc., BEAR Cloud Technologies Inc., and Loma Alta Holdings, Inc. as the members of the officia l committee of unsecured creditors (the “Committee ”). No request has been made for the appointment of a trustee or an examiner in the Chapter 11 Cases. The Committee, creditors, parties-in-interest, and other entities have been afforded a reasonable opportunity to object to the Transactions. A reasonable opportunity to object or be heard with respect to the Sale Motion and the relief requested therein has been afforded to all interested Persons and entities. F. Compliance with Local Rules. The Debtors have complied in all respects with Local Rules 2002-1 and 6004-1 of the Local Rules of Bankruptcy Practice and Procedures of the United States Bankruptcy Court for the District of Delaware, establishing guidelines for the conduct of asset sales. G. Corporate Authority. Upon entry of this Sale Order, the Debtors will have (i) full corporate power and authority to execute, deliver and perform their respective obligations under the Purchase Agreement, and consummate the Transactions pursuant to the Purchase Agreement and all other documents contemplated thereby, and (ii) no consents or approvals, other than those expressly provided for in the Purchase Agreement, are required for the Debtors to consummate the Transactions. H. Ownership. The Debtors are the sole and lawful owners of the Purchased Assets, title thereto is presently vested in the Debtors’ estates within the meaning of section 541(a) of the Bankruptcy Code, and no other person or entity has any ownership right, title or interest therein, 4 DOCS_SF:105536.6 Case 21-10457-LSS Doc 292 Filed 05/21/21 Page 5 of 37 except for the liens and claims described in the Final Order (I) Authorizing the Debtors to Obtain Secured Postpetition Financing; (II) Authorizing the Use of Cash Collateral; (III) Granting (A) Liens and Superpriority Administrative Expense Claims, and (B) Adequate Protection to Prepetition Lender; (IV) Modifying the Automatic Stay; (V) Scheduling a Final Hearing; and (VI) Granting Related Relief [Docket No. 213] (the “Final Financing Order”), entered by the Court on April 27, 2021. I. Prepetition Lender First-Priority Perfected Liens. The stipulatio ns, admissio ns , agreements, and releases contained in the Final Financing Order, including without limitation, in paragraph E thereof, are binding upon the Debtors, the Committee, and all other parties in interest, subject to the provisions of paragraph 14 hereof and completion of further documentation reasonably acceptable to the Debtors, the Committee, and the Prepetitio n Lender memoria li z in g the assignment and release described in said provisions. J. Prompt Consummation. It is in the best interests of the Debtors, their estates, their creditors, and all other parties-in-interest to sell the Purchased Assets within the time constraints set forth in the Sale Motion and the Purchase Agreement. The Transactions must be approved and consummated promptly as provided herein in order to maximize the value of the Purchased Assets for the Debtors’ estates.