IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELA\ilARE In re Chapter 11 SynCardia Systems, Inc. I CaseNo. 16-11599 (MFW) Debtor Ref. No.258 NOTICE OF FILING OF FULLY EXECUTED COPY OF THE SETTLEMENT AGREEMENT PLEASE TAKE NOTICE that on September 16, 2016 the Court entered the Order (I) Approving Asset Purchase Agreement And Authorizing The Sale Of Substantially All Of The Debtor's Assets Outside The Ordinary Course Of Business Pursuant To The Purchaser's Agreement, (ll) Authorizing The Sale Of Assets Free And Clear Of All Liens, Claims, Interests And Encumbrances, (III) Authorizing The Assumption And Assignment Of Certain Executory Contracts And Unexpired Leases, And (IV) Granting Related Relief [D.I. 258] (the "Sale Order").2 Exhibit 3 to the Sale Order is the Settlement Agreement. IREMAINDER OF PAGE INTENTIONALLY LEFT BLANK] I The Debtor in this case (with the last four digits of its taxpayer ID no. in parenthesis): SynCardia Systems, Inc (1044). The Debtor's corporate address is:1992 E. Silverlake Road, Tucson, Arizona 85713. 'Terms used herein shall have the meanings ascribed to them in the Sale Order. { l r 0l .001 -w0043669 } Case 16-11599-MFW Doc 273 Filed 09/19/16 Page 1 of 2
Transcript
IN THE UNITED STATES BANKRUPTCY COURTFOR THE DISTRICT OF DELA\ilARE
In re Chapter 11
SynCardia Systems, Inc. I CaseNo. 16-11599 (MFW)
Debtor Ref. No.258
NOTICE OF FILING OF FULLY EXECUTEDCOPY OF THE SETTLEMENT AGREEMENT
PLEASE TAKE NOTICE that on September 16, 2016 the Court entered the
Order (I) Approving Asset Purchase Agreement And Authorizing The Sale Of Substantially All
Of The Debtor's Assets Outside The Ordinary Course Of Business Pursuant To The Purchaser's
Agreement, (ll) Authorizing The Sale Of Assets Free And Clear Of All Liens, Claims, Interests
And Encumbrances, (III) Authorizing The Assumption And Assignment Of Certain Executory
Contracts And Unexpired Leases, And (IV) Granting Related Relief [D.I. 258] (the "Sale
Order").2 Exhibit 3 to the Sale Order is the Settlement Agreement.
IREMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
I The Debtor in this case (with the last four digits of its taxpayer ID no. in parenthesis): SynCardia Systems, Inc
(1044). The Debtor's corporate address is:1992 E. Silverlake Road, Tucson, Arizona 85713.
'Terms used herein shall have the meanings ascribed to them in the Sale Order.
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Case 16-11599-MFW Doc 273 Filed 09/19/16 Page 1 of 2
PLEASE TAKE FURTHER NOTICE that attached hereto as Exhibit A is a fully
executed copy of the Settlement Agreement.
Dated: September 19,2016V/ilmington, Delaware
RÄTH & LLP
(No. 3407)Keni K. Mumford (No. 4186)Matthew B. McGuire (No. 4366)Kimberly A. Brown (No. 5138)919 Market Street, Suite 1800
Case 16-11599-MFW Doc 273 Filed 09/19/16 Page 2 of 2
EXHIBIT A
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Case 16-11599-MFW Doc 273-1 Filed 09/19/16 Page 1 of 16
SETTLEMENT AGRPEMENT
Tþis settlement agreement (the "Ag;ruen!") dated as of September 16, 2016, by and
between the debtor and debtor-in-possession SynCardia Systems, [nc., a Delaware corporation
(the "üeb!gg"), Trinity Capital Investment, LLC, an Arjzona limited liability company
("Trinity"), Agility Lease Fund-III, LLC, an Arizona limited liability colnpany ("Agility"), and
Sindex SSI Lendin g, LLC, a l)elaware limited liability company ("Siru!sÅ" and together with the
Debtor and Trinity and Agility, the "Fa¡tie{").
RECITALS
WHEREÁ.S, prior to the Petition Date (defined below), the Debtor entered into that
certain Master Lease Agreement No. 2-1 dated July 29,2011 (as amended from time-to-tirne and
together with any and all exhibits, schedules and ancillary documents, notes and agreements
related thereto, the "Mâster Ljeåse Agrêsin$nt"). Pursuant to the terms of the Master Lease
Agreement, the Debtor ultirnately purdhased the equipment identified on Equipment Schedules
Nos, 2-1 through 2-5 (collectively, the "9$¡,ùhato B ") and continued to lease the
equipment identified on Equipment Schedules Nos. 2-6 and 2-7 (the "Leqsed Equi.plsetit") from
Trinity. Pursuant to the Master Lease Agreement, related security agreements and notes entered
into by and between the Debtor, Trinity and/or Agility Lease Fund-III, LLC, Trinity trled that
certain UCC Financing Statement dated as of August3,2}ll (as amended from time-to-time and
together with any and all attachrnents and exhibits thereto, the 'IUCC Fi Eg'Sîâ e ")asserting security interests in the Purchasecl Equipment and the Leased Equipment.
WHEREAS, on July l, 2016 (the ':lg¡ifu '), the Debtor filed a voluntary petition
for relief under chapter 11 of title 11 of the United States Code, 11 U.S.C. $ 101, et seq. (as
amended or modified, the "Iþ3bgplgJ$gdel') cornmencing a cliapter 11 case (the "C-lrapter I ICase") in the United States Bankruptcy Court for the District of Delaware (the "Court").
WHEREAS, on the Petition Date, the Debtor filed the Debtor's Motion far (A) an Order
Establislting Bidding Procedures .Relating to the Sale af the Debtor's Business; (II) Ápproving
Bid Protections in Connection with the Sale; (Lil) Establishing Procedures Relating trs the
Assumption and Assignment of Certdin Executory Conlracts and Unexpired Leases, Including
Notice of Proposed Cure Amounts; (IV) Approving Form and Manner aJ' Notice o.f AllProcedures, Protections, Schedules, and Agreements; (V) Scheduling a Hearing to Consider lhe
Proposed Sale; and (VI) Granting Certain Related Relief; and (B) an Order (I) Authorizing the
Sale of the Debtor's Business Free and Clear of All Liens, Claims, Enct¿rnbrances, and Interest,s;
(II) Authorizíng the Assumptíon and Assignment of Certain Executory Contracts and Unexpired
Leases; und (III) Granting Certain Related Ilelief [D.L 9] (the "Þidtling Ffocqdtrfqå&0liat]"),which contemplates the sale of substantially all of the Debtor's assets (the "Sale") to Sindex, the
stalking horse purchaser, pursuant to a stalking horse asset purchase agreement (the "$talking,llnrse A.lllL") or to the entity submitting the higlrest or otherwisebest bid. On August 5,2076,the Court granted the Bidding Procedures Motion, scheduling the Auction, ifl necessary, for
' Te¡ms utilized but not otherwise defined here shall have the meanings ascribed lo them in the Bidding Procedures
Motion.
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Case 16-11599-MFW Doc 273-1 Filed 09/19/16 Page 2 of 16
September 14,2016 and the Sale Hearing for September 16, 2016 [D.L 175] (the 'iBidctìûÊ,
lrççptl;*.ps Qrder").
WHEREAS, prior to the Sale Hearing, Trinity ancl Agility informally objected to the sale
of the Purchased Equipment and Leased Equipment to the Successful Bidder free and clear of allinterests, liens, claims and encumbrances (the "$Êlg9þigctiogi'),
WHEREAS, no Qualifying Bid other than the bid set forth itt the Stalking Horse APAwas submitted in connection with the Auction and the Sale. As such, Sindex was declared theSuccessful Bidder pursuant to the Bidding Procedures Order.
\ryHEREAS, the Parties have engaged in extensive, ams' length negotiations to address
the Sale Objection and wish to memorialize the agreement reached with respect thereto to and toimmediately effectuate and implement the terms thereof as set forth herein.
NO\ry, THEREFORE, in consideration of the foregoing Recitals, the mutual promises,covenants and conditions set forth herein, and for other good and valuable consideration, thereceipt and sufficiency of which are hereby acknowledged by each of the Parties, the Partieshereby agree as follows:
4GB,pJirU.gNT
1. P.¡¡rchase,sf dhq Tr,inity Assetq. On the Effective Date (as defined below),Trinity and/or Agility (as appliCable) shall sell, transfer, assign, convey and deliver, or cause tobe sold, transferred, assigned, conveyed and delivered, to Sindex the Leased Equipment (togetherwith any other equipment leased to the Debtor under the Master Lease Agreement not previouslypurchased, the 'tinjgy é ' and together with the Purchased Equipment, the "EEÅ! ')free and clear of all Liens, Claims, Interests and Encumbrances (as defined below) by executingthat certain Bill of Sale substantially in the form attached hereto as ErhiþitrÁ, and Sindex shallpay Trinity $140,000 (the "PU¡çhaSe ") for the purchase of all of Trinity's rights, title and
interests in, to or under the Trinity Assets pursuant to the wire transfer instructions provided byTdnity as attached hereto as Exhiltit,S.
2. Release of all Liens. Cla¡ms; Interests ånd Encuubre¡rccs in the Eouipment.In consideration for the payment of the Purchase Price and other good and valuable considerationthe sufficiency of which is hereby acknowledged, subject to the occunencë of the Effective Dateand the receipt of the Purchase Price, Trinity and Agility and their agents, affiliates, participants,subsidiaries, parent entities, predecessors-in-interest, successors, assigûs, beneficiaries designees,attomeys, representatives, trustees and all other persons that may be acting for or on its behalf,including, without limitation, all present and former officers, directors, professionals and
employees shall and do hereby (i) consent to the sale of the Trinity Assets free and clear of allmortgages, restrictions, hypothecations, charges, indentures, loan agreements, notos, instruments,leases, licenses, options, deeds of trust, security interests, conditional sale or other title retentionagreements, pledges, liens (including, without limitation, mechanics', materialmens' and otherconsensual and non-consensual liens and statutory liens), judgments, demands, encunbrances,rights of first refusal, offsets, set-ofß (except set-offs validly exercised prior to the PetitionDate), contracts, rights of recovery, claims fbr reimbursement, contribution, indemnity,
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exoneration, products liability, aiter-ego, environmental, pension, or tax liabilities, decrees ofany court or foreign or domestic goveñìmental entity, or charges or interests of any kind ornature, if any, including, but not limited to, any restriction on the use, voting, transfer, receipt ofincome or other exercise of any attributes of ownership, debts arising in any way in connection
with any agreements (other than the right to payment of the Purchase Price), acts, or failures toact, of the Debtor or the Debtor's predecessors or affiliates, claims (as that tenn is usecl in the
Bankruptcy Code), reclamation claims, obligations, liabilities, demands, guaranties, options,rights, contractual or other commitments, restrictions, interests and matters of any kind and
nature, whether known or unknown, choate or inchoate, filed or unfilled, scheduled orunscheduled, noticed or unnoticed, recorded or unrecotded, perfected or unperfected, allowed ordisallowed, contingent or non-contingent, liquidated or unliquidated, matured or unmatured,rnatelial or non-material, disputed or undisputed, whether arising prior to or subsequent to theromütencement of the Chapter 1 I Case, and whether imposed by agreernent, understanding, law,equity or otherwise, including claims arising under any doctrines of successor liability or alter-
ego (collectively, "l,iens. Claims, lnterEsl¡ aRd þnct¡t{lbransqçl') and (ii) waive and release any
and all Liens, Claims, Interests and Encumbrances in the Equipment.
J.
the paynentIn consideration for
the sufficiency ofofthe Purchase Price other goodwhich is hereby acknowledged, Sir"rdex shall prepare and provide to Trinity and Agility prior tothe Effective Date an amendment to the UCC Financing Statements evidencing Trinity's and
Agility's release of all Liens, Claims, Interests and Encumbrances (the "UCÇ.4uu9¡ld
