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Case 16-52371 Doc 181 Filed 10/07/19 Entered 10/07/19 20:29:41 Desc Main Document Page 1 of 18 Case 16-52371 Doc 181 Filed 10/07/19 Entered 10/07/19 20:29:41 Desc Main Document Page 1 of 18 IN THE UNITED STATES BANKRUPTCY COURT MIDDLE DISTRICT OF GEORGIA MACON DIVISION In Re: : : RADIO PERRY, INC., : Case No. 16-52371-AEC : Chapter 11 Debtor. : : : MOTION FOR AN ORDER: (A) APPROVING SALE OF SUBSTANTIALLY ALL OF THE DEBTOR’S ASSETS, FREE AND CLEAR OF ALL LIENS, CLAIMS, INTERESTS, AND ENCUMBRANCES; (B) AUTHORIZING THE SALE, ASSUMPTION, AND ASSIGNMENT OF CERTAIN EXECUTORY CONTRACTS AND UNEXPIRED LEASES IN CONNECTION WITH SUCH SALE; (C) MAKING A DETERMINATION OF CURE AMOUNTS WITH RESPECT TO EXECUTORY CONTRACTS AND UNEXPIRED LEASES IN CONNECTION WITH SUCH SALE; AND (D) GRANTING RELATED RELIEF The above-captioned debtor and debtor-in-possession (the “Debtor ”, the “Company ” or the “Seller ”), by and through its undersigned counsel, hereby moves this Court for entry of an order, pursuant to Sections 105(a), 363, and 365 of title the Bankruptcy Code, and Rules 2002, 6004, and 6006 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules ”): (a) approving the sale (the “Sale ”) of substantially all of the Debtor’s assets, free and clear of all liens, claims, interests, and encumbrances to Marquee Broadcasting Georgia, Inc. (the “Buyer ” or “Marquee ”); (b) approving the sale, and the assumption and assignment of certain executory contracts and unexpired leases (each an “Assumed Executory Contract ” and, collectively, the “Assumed Executory Contracts ”) in connection with such sale; (c) making a determination of cure amounts with respect to each of the Debtor’s Assumed Executory Contracts; and (d) granting related relief (the “Motion ”). In support of this Motion, the Debtor respectfully represents as follows: Case 16-52371 Doc 181 Filed 10/07/19 Entered 10/07/19 20:29:41 Desc Main Document Page 2 of 18 JURISDICTION 1. This Court has jurisdiction over the Motion pursuant to 28 U.S.C. §§ 157 and 1334. This matter is a core proceeding within the meaning of 28 U.S.C. § 157(b)(2). Venue is proper before this Court pursuant to 28 U.S.C. §§ 1408 and 1409. The statutory predicates for the relief requested herein are Sections 105(a), 363, and 365 of the Bankruptcy Code and Bankruptcy Rules 2002, 6004, and 6006. BACKGROUND 2. On November 15, 2016 (the “Petition Date ”), the Debtor filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Middle District of Georgia (the “Court ”), thereby commencing this case (the “Chapter 11 Case ”). 3. The Debtor continues to be in possession of its property, operate its business, and manage its property as a debtor-in-possession pursuant to Sections 1107(a) and 1108 of the Bankruptcy Code. 4. No trustee, examiner, or official committee of unsecured creditors has been appointed in this Chapter 11 Case. A. Brief Overview of Debtor’s Business Operations 5. The Company operates a broadcast television station WPGA-TV, channel 23, Perry, Georgia, Facility ID No. 54728 (“ WPGA ”). 6. WPGA operates pursuant to certain FCC Authorizations 1 granted to it by the Federal Communications Commission (the “ FCC ”). 1 Capitalized but undefined terms are ascribed the same meaning given such terms in the Marquee APA (as defined herein), which is attached hereto as Exhibit “A”. 2 Case 16-52371 Doc 181 Filed 10/07/19 Entered 10/07/19 20:29:41 Desc Main Document Page 3 of 18 7. Pre-petition, Debtor, along with its affiliates Register Communications, Inc. (“ RCI”) and Radio Peach, Inc. (“ Radio Peach ”), operated as part of a closely-held group of media companies controlled by Lowell and Janice Register (the “Registers” and, collectively with RCI, Radio Peach, and Debtor, the “ Register Group ”). 2 8. Pre-petition, the Register Group operated numerous broadcast-related market segments, including television, radio, tower leasing, and digital advertising. 9. Debtor’s pre-petition business included television, radio, and tower leasing. 10. Prior to the filing of the Chapter 11 Case, Debtor sold its radio business. 11. Currently, Debtor’s business is limited to television broadcasting (and related advertising sales) and tower leasing. B. Significant Bankruptcy Events i. The Settlement Agreement and Initial Attempt to Sell the Company 12. On March 19, 2018, the Court approved Debtor’s application to employ Heritage Capital Group, Inc. (“ Heritage ”) to assist in Debtor’s effort to market and sell substantially all of the assets of Debtor. (Dkt. No. 71). 13. On or about March 20, 2018, Debtor, along with certain of its affiliates, including affiliates RCI, Radio Peach, and the Registers, filed a Motion to Approve Compromise Pursuant to Bankruptcy Rule 9019(a) seeking this Court’s authority to enter into a multi-party settlement agreement (the “ Settlement Agreement ”), which essentially resolved all outstanding issues in the case. (Dkt. No. 72). 2 At some point, each member of the Register Group has been a debtor in a bankruptcy case before this Court: RCI (Case No. 15-52823); Radio Peach (Case No. 16-52372); and Lowell and Janice Register (Case No. 17-51445). 3 Case 16-52371 Doc 181 Filed 10/07/19 Entered 10/07/19 20:29:41 Desc Main Document Page 4 of 18 14. At a high level, the Settlement Agreement provided the Debtor and its affiliates a lengthy period of time to market substantially all of the assets of Debtor, RCI, and Radio Peach. If the Debtor was unable to find a buyer prior to a date certain, the Settlement Agreement provided that Green Bull Georgia Partners, LLC (“ Green Bull ”), the Register Group’s primary secured lender, would be permitted to foreclose its interest in certain assets of the Register Group. 15. The Court authorized the Settlement Agreement on April 4, 2018. (Dkt. No. 83). 16. On December 17, 2018, Debtor, along with its affiliates RCI, Peach, and the Registers, filed a Motion to Approve Sale of Property and Entry of an Order (A) Authorizing the Sale of Debtors’ Interest in Property Pursuant to 11 U.S.C.§ 363 and F.R.B.P. 6004, Free and Clear of Liens, Claims, and Interests, Which Shall Attach to Proceeds of Such Sale, (B) Authorizing Payment of Closing Costs; and (C) Granting Related Relief (the “ First Sale Motion ”) (Dkt. No. 98). 17. On March 15, 2019 Debtor withdrew the First Sale Motion. ii. Green Bull Takes Control of the Debtor and Begins to Market the Company 18. On the Petition Date, RCI was the holder of 100% of Debtor’s corporate stock. 19. On or about April 1, 2019, Green Bull, the primary secured creditor of RCI and Debtor, initiated proceedings to foreclose its security interest 3 in the corporate stock of Debtor. 3 Green Bull’s security interest in Debtor’s corporate stock arose pursuant to a Stock Pledge Agreement dated March 16, 2009. The Settlement Agreement permitted Green Bull to foreclose the Radio Perry stock if the Debtor failed to consummate a sale. 4 Case 16-52371 Doc 181 Filed 10/07/19 Entered 10/07/19 20:29:41 Desc Main Document Page 5 of 18 20. On or about April 15, 2019, Green Bull acquired at public sale all issued and outstanding shares of Debtor. 21. On or about May 3, 2019, Green Bull’s acquisition of the shares of Debtor was approved by the FCC. 22. On or about May 3, 2019, Green Bull, as sole shareholder of Debtor, conducted a shareholder meeting in accordance with Debtor’s by-laws. 23. At the May 3, 2019 shareholder meeting, Green Bull, as sole shareholder of Debtor, voted to remove all of the then members of the Debtor’s Board of Directors. 24. Also at the May 3, 2019 shareholder meeting, Green Bull, as sole shareholder of Debtor, voted to elect Steve Latkovic and Glenn Pollack as new members of Debtor’s Board of Directors. 25. On May 3, 2019, the newly-constituted Board of Directors of Debtor voted to appoint Steve Latkovic and Glenn Pollack as President and Vice President, respectively, of the Company. 26. Since May 3, 2019, the Debtor has undergone a renewed marketing effort. To that end, the Debtor has conducted extensive discussions and negotiations with multiple potential purchasers, including Marquee. C. The Proposed Sale to Marquee 27. Those discussions culminated in Debtor’s decision to sell substantially all of its assets to Marquee. To that end, the parties entered into an Asset Purchase Agreement (the “APA ”), a true and correct copy of which is attached to this Motion as Exhibit “A” . Pursuant to the APA, subject to the receipt of the necessary FCC approvals, Marquee proposes to acquire the Acquired Assets (as defined in the APA) in 5 Case 16-52371 Doc 181 Filed 10/07/19 Entered 10/07/19 20:29:41 Desc Main Document Page 6 of 18 an all cash transaction for a purchase price of one million dollars ($1,000,000) paid at Closing in accordance with the Allocations set forth in the APA. 28. As more fully described in the APA, the proposed sale involves not only the sale of Debtor’s assets, but also the sale of former assets of other Register Group members that are now owned by Green Bull (or that Green Bull has the right to own subject to the receipt of certain FCC approvals).4 Although more fully described in the APA, the Acquired Assets can be summarized as follows: a. $525,000 for the Licenses 5 (owned by Debtor); b. $250,000 for the Verizon Lease (owned by Debtor); c. $25,000 for the Tangible Personal Property of Debtor; d.
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