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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:

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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”.

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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).

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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.

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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

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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. $200,000 for the Real Property (owned by Green Bull)

The Debtor also seeks to sell and assign the Assumed Executory Contracts to the Buyer at time of the Closing.

RELIEF REQUESTED

29. Pursuant to this Motion, the Debtor respectfully requests the entry of an order, substantially in the form attached hereto as Exhibit “B” (the “Sale Order ”), authorizing the Debtor to execute the APA and consummate the sale of Debtor’s interest in the Acquired Assets to Marquee, free and clear of all liens, claims, interests, and encumbrances. Debtor respectfully further requests that the Bankruptcy Court: (a) authorize the Debtor to assume and then assign to the Buyer the Assumed Executory

4 Section 9.11 of the APA contemplates the transfer of a broadcast license for WPGA-LP which is owned by Debtor’s affiliate Radio Peach, Inc. As more fully described in the APA, Green Bull has foreclosed its interest in the corporate stock of Radio Peach, Inc., subject to the receipt of FCC approval. 5 Id.

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Contracts, and (b) determine the cure amount, if any, with respect to each Assumed

Executory Contract.

APPLICABLE AUTHORITY

A. The Proposed Sale is Proper and Should Be Approved.

30. The Debtor submits that ample authority exists for the approval of the proposed sale of the Acquired Assets pursuant to the APA. Section 363 of the

Bankruptcy Code, which authorizes a debtor to sell assets of the estate other than in the ordinary course of business, free and clear of all liens, claims, and encumbrances, permits the Bankruptcy Court to authorize a sale outside of the ordinary course of the debtor’s business: “[t]he [debtor-in-possession], 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); see also Bankruptcy Rule 6004(f)(1) (“All sales not in the ordinary course of business may be by private sale or by public auction.”).

31. Section 363 of the Bankruptcy Code does not set forth a standard for determining when it is appropriate for a court to authorize the sale or disposition of a debtor’s assets. However, approval of a proposed sale of property, pursuant to Section

363, is appropriate if the transaction is supported by the “sound business judgment” of the debtor. See In re Phoenix Steel Corp. , 82 B.R. 334, 335-36 (Bankr. D. Del. 1987)

(stating that judicial approval of a section 363 sale requires a showing that the proposed sale is fair and equitable, a good business reason exists for completing the sale, and the transaction is in good faith); In re Chateaugay Corp. , 973 F.2d 141 (2d Cir. 1992)

(holding that a judge determining a Section 363(b) application must find from the evidence presented a good business reason to grant such application); Committee of

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Equity Sec. Holders v. Lionel Corp. (In re Lionel Corp.) , 722 F.2d 1063, 1071 (2d Cir.

1983) (same); Stephens Indus. v. McClung , 789 F.2d 386, 390 (6th Cir. 1986) (holding that “bankruptcy court can authorize a sale of all of a chapter 11 debtor’s assets under

§ 363(b)(1) when a sound business purpose dictates such action”); In re Gulf States

Steel, Inc. of Alabama , 285 B.R. 497, 514 (Bankr. N.D. Ala. 2002) (holding that the

“proper standard to use when considering a proposed motion to sell is the business judgment test”).

(i) A “Sound Business Purpose” Supports the Sale

32. Here, the Debtor respectfully submits that sound business reasons support its decision to enter into the APA. First, as noted above, the Debtor has extensively marketed its assets during two successive marketing processes, which spanned almost eighteen (18) months. The Debtor has proposed the sale of the Acquired Assets after thorough consideration of all viable alternatives and has concluded that the sale is supported by a number of sound business reasons.

33. The Debtor cannot sustain a stand-alone operational reorganization based

on, among other things, the level of the Debtor’s secured debt, its lack of debtor-in-

possession financing, and the fact that the Debtor’s ongoing minimal operations

generate barely enough funds to cover its operating costs. Hence, the Debtor has

determined that a sale of the Debtor’s assets provides the best and most efficient means

for the Debtor to maximize the value of its estate for all parties-in-interest.

34. As explained above, the Debtor has extensively marketed its assets and

has conducted a thorough sales process.

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35. As a result of the Debtor’s marketing efforts, the Debtor believes that

Marquee’s offer has been fully tested by the market and constitutes a fair and reasonable consideration for the Acquired Assets.

36. Based on the foregoing, the sale of the Acquired Assets is justified by sound business reasons and is in the best interests of the Debtor and its estate.

Accordingly, pursuant to Section 363(b) of the Bankruptcy Code, the Debtor requests approval of the sale to Marquee as set forth herein.

(ii) The Proposed Sale was Negotiated in Good Faith

37. The APA is the product of good faith, arm’s-length negotiations between the Debtor and Marquee.

38. The Debtor and Marquee acted in good faith in negotiating and executing the APA. Although the Bankruptcy Code does not define “good faith purchaser,” bankruptcy courts, in construing Section 363(m) of the Bankruptcy Code, have stated that the phrase encompasses one who purchases in “good faith” and for “value.” See

Miami Center Ltd. P’ship v. Bank of New York , 838 F.2d 1547, 1554 (11th Cir. 1988);

Mark Bell Furniture Warehouse, Inc. v. D.M. Reid Associates, Ltd. (In re Mark Bell

Furniture Warehouse, Inc.) , 992 F.2d 7, 8 (1st Cir. 1993); In re United Press Int’l , No.

91 B 13955 (FGC), 1992 U.S. Bankr. LEXIS 842, at *3 (Bankr. S.D.N.Y. May 18,

1992) (finding that an asset purchase agreement negotiated in good faith and at arm’s

length is entitled to protection pursuant to Section 363(m). Due to the absence of a

bright-line test for good faith, the determination is based on the facts of each case,

concentrating on the “integrity of [an actor’s] conduct during the sale proceedings.” In

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re Pisces Leasing Corp. , 66 B.R. 671, 673 (E.D.N.Y. 1986) (quoting In re Rock Indus.

Machinery Corp. , 572 F.2d 1195, 1198 (7th Cir. 1978)).

39. The Debtor believes that its has made an appropriate showing that the

APA is the result of a negotiated, arms-length transaction, in which Marquee at all times acted in good faith. The Debtor thus requests that the Court find that the Buyer will be purchasing the Acquired Assets in good faith within the meaning of Section

363(m).

(iii) A Private Sale of the Acquired Assets is Appropriate under Bankruptcy Rule 6004 Given the Facts and Circumstances of this Case

40. Bankruptcy Rule 6004(f) permits a debtor to conduct a private sale pursuant to Section 363. Specifically, Bankruptcy Rule 6004(f) provides that “[a]ll sales not in the ordinary course of business may be by private sale or by public auction.”

41. Accordingly, in light of Bankruptcy Rule 6004(f) and case law regarding

Section 363 sales, a debtor may conduct a private sale if a good business reason exists.

See, e.g., In re Pritam Realty, Inc. , 233 B.R. 619 (D.P.R. 1999) (upholding the bankruptcy court’s approval of a private sale conducted by a chapter 11 debtor); In re

Condere Corp., 228 B.R. 615, 629 (Bankr. S.D. Mass. 1998) (authorizing private sale of debtor’s tire company where “debtor has shown a sufficient business justification for the sale of assets to the [p]urchaser”); In re Embrace Sys. Corp. , 178 B.R. 112, 123

(Bankr. W.D. Mich 1995) (“A large measure of discretion is available to a bankruptcy court in determining whether a private sale should be approved. The court should exercise its discretion based upon the facts and circumstance of the proposed sale”).

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42. The Debtor submits that the proposed private sale of the Acquired Assets to the Buyer in accordance with the APA is appropriate in light of the facts and circumstances of this case, particularly given the extent of the prior marketing period and current marketing period, the failure of the First Sale Motion, and the mounting costs and expenses of the Chapter 11 Case, including administrative expenses.

Additionally, the probability that a competing bidder will emerge with an offer higher or better to top the Buyer’s Purchase Price simply does not justify the costs and risks associated with the delay.

B. Sale of the Acquired Assets Free and Clear of all Liens, Claims, Interest, and Encumbrances Meets the Criteria of Section 363(f) of the Bankruptcy Code .

43. The Debtor proposes to sell the Acquired Assets pursuant to Sections

363(b) and (f) of the Bankruptcy Code which, among other things, authorize a debtor to

sell property outside of the ordinary course of business, free and clear of all interests,

liens, claims, encumbrances, or security interests of any other party, including, but not

limited to, all administrative expenses or priority claims asserted in this Chapter 11

Case (collectively, the “Liens ”).

44. Debtor submits that the sale should be free and clear of all Liens in

accordance with Section 363(f) of the Bankruptcy Code, with any such Liens attaching

to the proceeds of the sale of the Acquired Assets ultimately attributable to the property

against or in which such Lien attaches.

45. Specifically, section 363(f) of the Bankruptcy Code recognizes five

situations in which the Bankruptcy Court may authorize a sale “free and clear”:

(f) The trustee may sell property under subsection (b) or (c) of this section free and clear of any interest in such property of an entity other than the estate, only if -

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(1) applicable nonbankruptcy law permits sale of such property free and clear of such interest;

(2) such entity consents;

(3) such interest is a lien and the price at which such property is to be sold is greater than the aggregate value of all liens on such property;

(4) such interest is in bona fide dispute; or

(5) such entity could be compelled, in a legal or equitable proceeding to accept a money satisfaction of such interest.

11 U.S.C. § 363(f); see In re Gulf States Steel , 285 B.R. at 506 (section 363(f) is written in the disjunctive; a court may approve a sale “free and clear” provided at least one of the subsections is met); Citicorp Homeowners Services, Inc. v. Elliot (In re

Elliot) , 94 B.R. 343, 345 (E.D. Pa. 1988) (same); see also In re Healthco International,

Inc. , 174 B.R. 174, 176 (Bankr. D. Mass. 1994) (section 363(f)(5) has been interpreted to mean “a payment constituting less than full payment of the underlying debt”).

46. At a minimum, Debtor believes it can satisfy Nos. 2 and 5. Thus, to the extent that any Liens relate to the Acquired Assets, pursuant to Section 363(f), such assets should be sold free and clear of such Liens. Green Bull, which claims a first priority security interest in substantially all of the Debtor’s assets, consents to proposed sale to Marquee. Additionally, other Liens on the Acquired Assets, if any, are capable of being satisfied by money, and should transfer and attach to the net proceeds of the sale with the same validity, priority, force, and effect that the Liens attached to the

Acquired Assets immediately prior to the closing, subject to further order of this Court and subject to the rights and defenses, if any, of the Debtor and any other party-in- interest.

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47. The Debtor has provided notice of the First Sale Motion and this Motion to all parties who are creditors and therefore all parties who could potentially assert

Liens against the Acquired Assets. Any holder of an alleged Lien against the Acquired

Assets could be compelled, in a legal or equitable proceeding, to accept a monetary satisfaction equal to the amount of its claim or interest in such assets.

48. Accordingly, the Debtor submits that the sale of the Acquired Assets free and clear of all Liens satisfies the statutory prerequisites of Section 363(f).

C. Assumption and Assignment of the Assumed Executory Contracts and Determination of the Cure Amounts is Warranted Pursuant to Section 365 of the Bankruptcy Code

49. The Debtor seeks authority to assume and assign to the Buyer each of the

Assumed Executory Contracts under Section 365 of the Bankruptcy Code. Assumption and assignment of executory contracts and unexpired leases are integral parts of the proposed sale and the Debtor respectfully requests approval by the Bankruptcy Court of the assumption and assignment of each of the Assumed Executory Contracts.

50. Section 365 of the Bankruptcy Code authorizes a debtor-in-possession to assume an executory contract or unexpired lease subject to the Court’s approval:

Except as provided in . . . subsections (b), (c), and (d) of this section, the trustee, subject to the court’s approval, may assume or reject any executory contract or unexpired lease of the debtor.

11 U.S.C. § 365(a).

51. Section 365(b) authorizes a debtor-in-possession to cure certain defaults existing at the time of assumption through various means and excuses the debtor from any obligation to cure other defaults under the contract or lease to be assumed.

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52. Section 365 further provides the Debtor may assign any agreement it assumes pursuant to Section 365(a).

53. Accordingly, Section 365 authorizes the proposed assumption and then assignment of each of the Assumed Executory Contracts, provided that the defaults, if any, under the Assumed Executory Contracts are cured and adequate assurance of future performance is provided.

54. Under the APA, only one executory contract is being assumed and assigned to Marquee—the Verizon Lease. There is no cure amount due as the Debtor has fully performed and continues to perform under the terms of the Verizon Lease.

Further, because Debtor is the lessor under the lease, it waives any cure obligations due it from Verizon. Debtor is aware of no such obligations. Based on the foregoing, the

Debtor respectfully requests that the Bankruptcy Court authorize the assumption and assignment to Marquee of each Assumed Executory Contract set forth in the APA.

D. Elimination of the 14 Day Stay Under bankruptcy Rules 6004(h) and 6006(d)

55. Bankruptcy Rule 6004(h) provides that “[a]n order authorizing the use, sale, or lease of property other than cash collateral is stayed until the expiration of 14 days after entry of the order, unless the court orders otherwise.” Fed. R. Bank. P.

6004(h).

56. Similarly, Bankruptcy Rule 6006(d) provides that “[a]n order authorizing the [debtor] to assign an executory contract or unexpired…is stayed until the expiration of 14 days after entry of the order, unless the court orders otherwise.” Id. at 6006(d).

57. The Debtor submits that ample cause exists to justify a waiver of the 14 day stays under Bankruptcy Rules 6004(h) and 6006(d) in connection with this sale.

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Time is of the essence in approving and closing the sale, and any unnecessary delay in closing the sale could result in changes in circumstances, or events that could preclude the closing of the sale. The Debtor therefore requests that the Sale Order be effective immediately by providing that the 14 day stay under Bankruptcy Rules 6004(h) and

6006(d) be waived.

NOTICE

58. Notice of this Motion shall be provided to: (i) counsel for the Green Bull;

(ii) Office of the United States Trustee; (iii) all parties who have filed requests for notice pursuant to Bankruptcy Rule 2002; (iv) all federal, state, and local regulatory and taxing authorities that are reasonably ascertainable by the Debtor and who might assert an interest in the Acquired Assets; (v) counterparties to each Executory Contract; (vi) each of Debtor’s employees; and (ix) all of those entities included on the Debtor’s creditor matrix. In light of the nature of the relief requested, the Debtor submits that no further notice is required.

CONCLUSION

59. Based upon the foregoing, the Debtor submits that the relief requested

herein is necessary and appropriate, is in the best interests of the Debtor and its estate

and should be granted in all respects.

60. Wherefore, the Debtor respectfully requests that the Court enter the order

substantially in the form attached hereto as Exhibit “B” and grant such other and further

relief as may be just and proper.

[Signatures on Following Page]

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This 7th day of October, 2019.

STONE & BAXTER, LLP By:

/s/ G. Daniel Taylor David L. Bury, Jr. Georgia Bar No. 133066 G. Daniel Taylor Georgia Bar No. 528521

Stone & Baxter, LLP 577 Mulberry Street, Suite 800 Macon, Georgia 31201 (478) 750-9898 (478) 750-9899 facsimile Counsel for Debtor [email protected] [email protected]

G:\CLIENTS\Radio Perry, Inc. v. Chapter 11\363 Sale\Marquee\Final For Upload\Sale Motion (Final for Upload).docx

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EXHIBIT A

Marquee Asset Purchase Agreement

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EXHIBIT B

Proposed Order