IN THE UNITED STA TES BANKRUPTCY COURT FOR THE MIDDLE ...

IN THE UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

) In re: ) Chapter 11 ) MTPC, LLC, THE PROTON THERAPY CENTER, LLC, PCPT HAMLIN, LLC,

) ) ) ) ) ) )

Case No. 3:20-bk-05438 (RSM) Judge Randal S. Mashburn

Debtors. ) ) (Jointly Administered)1

EXPEDITED ORDER (A) APPROVING BID PROCEDURES FOR SALE OF SUBSTANTIALLY ALL OF THE DEBTORS’ ASSETS, (B) SCHEDULING AUCTION

FOR AND HEARING TO APPROVE SALE OF SUBSTANTIALLY ALL FO THE DEBTORS’ ASSETS, (C) APPROVING FORM AND MANNER OF NOTICE OF SALE,

AUCTION, AND SALE HEARING, (D) APPROVING ASSUMPTION AND ASSIGNMENT PROCEDURES, AND (E) GRANTING RELATED RELIEF

Upon consideration of Debtors’ Expedited Motion for Entry of Orders (I)(A) Approving

Bid Procedures for Sale of Substantially All of the Debtors’ Assets, (B) Scheduling Auction for and

Hearing to Approve Sale of Substantially All of the Debtors’ Assets, (C) Approving Form and

Manner of Notice of Sale, Auction, and Sale Hearing, (D) Approving Assumption and Assignment

Procedures, and (E) Granting Related Relief and (II) (A) Approving Sale of Substantially All of

the Debtors’ Assets, (B) Authorizing Assumption and Assignment of Executory Contracts and

Unexpired Leases, and (C) Granting Related Relief [Dkt. No. 647] (the “Motion”)2 and the hearing

1 The jointly administered respective case numbers in these chapter 11 cases include: MTPC, LLC (“MTPC”), Case Number 3:20-bk-05438; The Proton Therapy Center, LLC (“PCPTK”), Case Number 3:20-bk-05439; PCPT Hamlin, LLC (“PCPT Hamlin,” and collectively with PCPTK and MTPC, the “Debtors”), Case Number 3:20-bk-05440. The Debtors’ service address is: 1400 Dowell Springs Boulevard, Suite 350, Knoxville, Tennessee 37909-2447. 2 Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms as set forth in the Motion.

Dated: 8/27/2021

Case 3:20-bk-05438 Doc 675 Filed 08/27/21 Entered 08/27/21 15:57:35 Desc MainDocument Page 1 of 58

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held on August 26, 2021 (the “Bid Procedures Hearing”) seeking approval of the Bid Procedures

attached hereto as Exhibit 1; and the Court, having found that it has jurisdiction over this matter

pursuant to 28 U.S.C. §§ 157 and 1334; and the Court having found that this is a core proceeding

pursuant to 28 U.S.C. § 157(b)(2); and the Court having found that venue of this proceeding and

the Motion in this district is proper pursuant to 28 U.S.C. §§ 1408 and 1409; and the Court having

considered the Motion, the arguments of counsel and the evidence presented at the Bid Procedures

Hearing and the entire record; and the Court having found that the Debtors provided due and

sufficient notice of the Motion and Bid Procedures Hearing and the relief sought in the Motion

under the particular circumstances, and it appearing no other or further notice need be provided;

and the Court having reviewed the Motion, the filings in support of the Motion, and all objections

to the relief sought in the Motion (the “Objections”); and the Court having found that the relief

requested in the Motion is in the best interest of the Debtors, their estates, their creditors, and other

parties in interest; and after due deliberation and good and sufficient cause appearing for the relief

sought in the Motion, it is hereby, FOUND AND DETERMINED THAT:

1. The findings of facts and conclusions of law set forth in this Order constitute the

Court’s findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052, made applicable

to this case pursuant to Bankruptcy Rule 9014. To the extent any of the following findings of fact

constitute conclusions of law, they are hereby adopted as such. To the extent any of the following

conclusions of law constitute findings of fact, they are hereby adopted as such. Any findings of

fact or conclusions of law stated by the Court on the record at the Bid Procedures Hearing are

hereby incorporated, to the extent they are not inconsistent with this Order.


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2. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334.

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

to 28 U.S.C. §§ 1408 and 1409.

3. The statutory and legal bases for the relief requested in the Motion are sections 105,

363(b), 363, 364, 365, 503, and 507 of title 11 of the United States Code (the “Bankruptcy

Code”), Rules 2002, 4001, 6004, 6006, 9007, and 9014 of the Federal Rules of Bankruptcy

Procedure (the “Bankruptcy Rules”), and Rules 9013-1 and 9075-1 of the Local Rules for the

United States Bankruptcy Court for the Middle District of Tennessee (the “Local Rules”).

4. A reasonable opportunity to object or be heard regarding the relief requested in the

Motion (including, without limitation, with respect to the Bid Procedures) has been afforded to all

interested persons and entities, including, without limitation, the Sale Notice Parties.

5. Notice of the Motion and the Bid Procedures Hearing was adequate and sufficient

under the circumstances of these Chapter 11 Cases, and such notice complied with sections 102(1),

363, and 365 of the Bankruptcy Code, Rules 2002, 6004, 6006, and 9014 of the Bankruptcy Rules,

and Local Rules 9013-1 and 9075-1.

6. The legal and factual bases set forth in the Motion establish just cause for the relief

granted herein. Entry of this Order is in the best interests of the Debtors and their respective estates,

creditors, and all other parties-in-interest.

7. The Debtors have demonstrated a compelling and sound business justification for

the Court to grant the relief requested in the Motion, including, without limitation to (a) approve

sale of the Assets on terms similar to those in the Form APA attached to the Motion as Exhibit B;

(b) approve the Bid Procedures; (b) establish the Assumption and Assignment Procedures; (c)

approve the form and manner of notice of all procedures, protections, schedules, and agreements


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described in the Motion and attached thereto; (d) schedule a date for the (i) Auction and (ii) Sale

Hearing; and (e) grant related relief as set forth herein. Such compelling and sound business

justification, which was set forth in the Motion and on the record at the Bid Procedures Hearing,

among other things, form the basis for the findings of fact and conclusions of law set forth herein.

8. All objections to the relief requested in the Motion that have not been specifically

referenced herein, withdrawn, waived, or settled as announced to the Court at the Bid Procedures

Hearing or by stipulation filed with the Court are overruled except as otherwise set forth herein.

9. The Bid Procedures, substantially in the form attached as Exhibit 1, are fair,

reasonable, and appropriate and represent the best method for maximizing the value of the Debtors’

estates.

10. The Auction and Sale Notice, in the form attached to this Order as Exhibit 2, is

appropriate and reasonably calculated to provide notice of the Sale of the Assets, including,

without limitation: (a) the date, time, and place of the Auction, if any; (b) the Bid Procedures; (c)

the deadline for filing objections to the sale of the Assets; (d) the date, time, and place of the

hearing to consider the sale of the Assets; (e) instructions for obtaining copies of any stalking horse

asset purchase agreement; (f) clearly identify that the sale of the Assets is free and clear of all

Encumbrances to the fullest extent allowable under section 363(f) of the Bankruptcy Code, with

all Encumbrances attaching with the same extent, validity, and priority to the Sale Transaction

proceeds; and (g) the proposed assumption and assignment of the Desired 365 Contracts to any

Successful Bidder arising from the Auction (if any), and no other or further notice of the Sale

Transaction shall be required.

11. The Initial Assumption and Assignment Notice, in the form attached to this Order

as Exhibit 3, is reasonably calculated to provide all interested parties with timely and proper notice


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of the potential assumption and assignment of 365 Contracts in connection with the Sale

Transaction and the related Cure Amounts, and no other or further notice is required.

12. The Notice of Desired 365 Contracts, substantially in the form attached as

Exhibit 4 is appropriate and reasonably calculated to provide all interested parties with timely and

proper notice of the assumption and assignment of the Desired 365 Contracts in connection with

the sale of the Assets and the related Cure Amounts (to the extent amended from the Initial

Assumption and Assignment Notice), and no other or further notice is required.

13. The Post-Auction Notice, substantially in the form attached to the Motion as

Exhibit 5, and incorporated herein by reference as if fully set forth in this Order, is appropriate

and reasonably calculated to provide all interested parties with timely and proper notice of the

Successful Bidder, and no other or further notice is required.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED THAT:

14. The relief requested in the Motion is GRANTED AND APPROVED as set forth in

this Order.

15. All Objections or the relief requested in the Motion that have not been withdrawn,

waived or settled as announced to the Court at the Bid Procedures Hearing or by stipulation filed

with the Court, and all reservations of rights included therein, are hereby overruled on the merits

or have been otherwise satisfied or adequately provided for pursuant to this Order.

I. Timeline of the Sale.

16. The Debtors are authorized to proceed with the sale of the Assets in accordance

with the Bid Procedures and are authorized to take any and all actions reasonably necessary or

appropriate to implement the Bid Procedures in accordance with the following timeline:


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Milestone Proposed Date

Entry of the Bid Procedures Order On or before August 27, 2021 Initial Bid Deadline 5:00 p.m. (prevailing Central Time) on August

31, 2021

Initial Assumption and Assignment Notice Deadline

August 31, 2021

Cure Objection Deadline September 21, 2021

Qualified Bid Deadline 5:00 p.m. (prevailing Central Time) on September 23, 2021

Auction (if necessary) 9:00 a.m. (prevailing Central Time) on September 28, 2021

Deadline to file (A) Post-Auction Notice and (B) Notice of Desired 365 Contracts

September 29, 2021

Sale Objection Deadline October 1, 2021

Adequate Assurance Objection Deadline October 5, 2021

Sale Hearing (subject to the availability of the Court)

1:00 p.m. (prevailing Central Time) on October 6, 2021

Adequate Assurance Issues Hearing, if any 11:00 a.m. (prevailing Central Time) October 12, 2021

17. Any party holding a perfected security interest in the Assets shall be entitled to

credit bid all or a portion of its allowed claim for those Assets that constitute its collateral, in

accordance with section 363(k) of the Bankruptcy Code, unless otherwise ordered by the Court.


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All liens on which any such credit bids are based shall be subject to objection and challenge by the

Committee and other parties in interest (a “Challenge”) if such objection and challenge rights still

exist. Notwithstanding anything to the contrary, nothing in this Bid Procedures Order or the Bid

Procedures grants or impairs rights to or of any party to challenge the liens or claims asserted by

the Bond Trustee.

I. The Bid Procedures.

18. The Bid Procedures are APPROVED in their entirety. The Debtors are authorized

to take any and all actions reasonably necessary or appropriate to implement the Bid Procedures,

in accordance therewith. The failure to specifically include or reference a particular provision of

the Bid Procedures in this Order shall not diminish or impair the effectiveness of such actions.

19. As further described in the Bid Procedures, the Initial Bid Deadline shall be 5:00

p.m. (prevailing Central Time) on August 31, 2021, and the Qualified Bid Deadline shall be 5:00

p.m. (prevailing Central Time) on September 23, 2021. Unless otherwise ordered by the Court,

any disputes or objections to the selection of any Qualified Bid, the Successful Bid, or the Backup

Bid (each as defined in the Bid Procedures) shall be resolved by the Court at the Sale Hearing as

set forth herein.

20. The Debtors are authorized to conduct and preside over the Auction in accordance

with the Bid Procedures. The Auction, to the extent that an Auction is necessary under the Bid

Procedures, shall take place at 9:00 a.m. (prevailing Central Time) on September 28, 2021, at the

offices of Waller Lansden Dortch & Davis LLP, 511 Union Street, Suite 2700, Nashville,

Tennessee 37219 (or at any other time and location as the Debtors may hereafter designate on

notice to the Consultation Parties, all Qualified Bidders, and other interested parties). The Auction

will be conducted openly and all Qualified Bidders, the Consultation Parties, and the United States

Trustee will be permitted to attend.


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II. Stalking Horse Bidder, Bid Protections, and Asset Purchase Agreement.

21. Pursuant to the Bid Procedures, including any applicable consultation rights

therein, the Debtors are authorized, but not directed, after consultation with the Consultation

Parties, to select one or more bidders to act as Stalking Horse Bidder(s) and enter into a Stalking

Horse APA with each such Stalking Horse Bidder and are further authorized, but not directed,

after consultation with the Consultation Parties, to offer the Bid Protections to such Stalking Horse

Bidder(s) provided, however, that with respect to any particular Stalking Horse APA, (i) the total

Breakup Fee offered shall not exceed three percent (3.0%) of the cash purchase price contemplated

by such Stalking Horse APA, (ii) the total Expense Reimbursement shall not exceed $500,000 in

the aggregate, and (iii) the total Bid Protections shall not exceed four percent (4.0%) of the cash

purchase price. The Bid Protections will be paid only (a) if the Debtors close an Alternative

Transaction, and NOT because the Stalking Horse Bidder(s) failed to close a Sale Transaction, and

(b) from the proceeds of the Alternative Transaction with the non-Stalking Horse Bidder(s) – that

is, if there are no such proceeds, then the Bid Protections will not be paid. For the avoidance of

doubt, the amount of Bid Protections payable under this Bid Procedures Order shall be calculated

on the applicable Asset Package at issue so that, if a Stalking Horse Bid covers multiple Asset

Packages – that is, bankruptcy estates – but is outbid on only one Asset Package, the calculation

of the Bid Protections payable will be based only on the portion of the Stalking Horse Bid that was

topped and shall not include consideration of the other Asset Package(s) for which the Stalking

Horse Bid was the Successful Bid.

22. After selecting a Stalking Horse Bidder, the Debtors shall announce the Stalking

Horse Bidder at the Auction and file with the Court and serve a Stalking Horse Notice (a)

identifying the Stalking Horse Bidder, the material terms of the Stalking Horse Bid (including the

purchase price, Assets subject to such Stalking Horse Bid, and any proposed compensation or


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bonus arrangements involving an insider of the Debtors), and the amount and terms of any Bid

Protections offered to the Stalking Horse Bidder, and (b) attaching a copy of the relevant Stalking

Horse APA.

23. Notwithstanding anything in this Order, if a Consultation Party objects to the

selection of any Stalking Horse Bidder(s), such Consultation Party’s objection shall be heard by

the Court on an expedited basis, subject to the Court’s availability. Such objection(s) shall not

challenge the amount of the Bid Protections authorized in paragraph 22 above.

III. Notice Procedures.

24. The Auction and Sale Notice, substantially in the form attached as Exhibit 2 is

APPROVED.

25. As soon as practicable after entry of the Bid Procedures Order, the Debtors shall

serve the Auction and Sale Notice and this Order by first-class mail, postage prepaid on the

following parties, provided, however, that to the extent email addresses are available for any of the

following parties, such parties may be served by email:

a. all entities that have, to the best knowledge of the Debtors’ management and advisors, expressed written interest in consummating a Sale Transaction within the past six (6) months;

b. all entities known to have asserted any lien, claim, interest, or encumbrance in or upon any of the applicable Assets;

c. Counsel for the Bond Trustee (Attn: Kevin J. Walsh, Greenberg Traurig, LLP, One International Place, Suite 2000, Boston, Massachusetts 02110 ([email protected]);

d. Counsel to the Committee (Attn: Michael E. Collins and Robert Miller, Manier & Herod, 1201 Demonbreun Street, Suite 900, Nashville, Tennessee 37203, [email protected] and [email protected]), and Andrew Sherman and Boris Mankovetskiy, Sills Cummis & Gross PC, One Riverfront Plaza, Newark, New Jersey 07102


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([email protected] and [email protected])); and

e. the U.S. Trustee.

26. In addition, as soon as practicable thereafter, the Debtors shall serve the Auction

and Sale Notice by first-class mail, postage prepaid, on:

a. all federal, state, and local regulatory or taxing authorities or recording offices which have a reasonably known interest in the relief granted herein;

b. the Internal Revenue Service;

c. any governmental authority known to have a claim against the Debtors in these Chapter 11 Cases;

d. all environmental authorities having jurisdiction over any of the Assets, including the Environmental Protection Agency; (f) the Office of the Attorney General and Office of the Secretary of State in each state in which the Assets are held;

e. the counterparties to the Desired 365 Contracts and all other applicable contracts and leases;

f. the Antitrust Division of the United States Department of Justice;

g. the Federal Trade Commission; and

h. all parties entitled to notice pursuant to Bankruptcy Rule 2002.

27. Service of the Auction and Sale Notice as described above shall be good and

sufficient notice of the applicable Sale Transaction and the Assumption and Assignment

Procedures with respect to known interested parties.

28. The Debtors are directed to post the Auction and Sale Notice on their case

information website at https://cases.stretto.com/MTPC.

29. The form of the Post-Auction Notice substantially in the form attached as Exhibit

5 is APPROVED. The Debtors shall file on the docket and serve the Post-Auction Notice on the


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counterparties to the Desired 365 Contracts, the Sale Notice Parties, and all parties entitled to

notice pursuant to Bankruptcy Rule 2002 and Local Rule 2002-1 via ECF, by email, fax, or

overnight delivery, on September 29, 2021.

IV. Assumption and Assignment Procedures.

30. The Assumption and Assignment Procedures, as detailed in the Motion and

incorporated herein, are hereby APPROVED.

31. The Initial Assumption and Assignment Notice, substantially in the form attached

as Exhibit 3 is hereby APPROVED.

32. The Debtors shall file with the Court, post on their case information website at

https://cases.stretto.com/MTPC, and serve on each Counterparty to a 365 Contract, the Initial

Assumption and Assignment Notice on August 31, 2021. If no Cure Amount is listed for a

particular Desired 365 Contract, the Debtors’ asserted Cure Amount for such 365 Contract shall

be deemed to be $0.00. The Debtors shall serve, via email, if available, or first-class mail, the

Initial Assumption and Assignment Notice that contains (a) the list of 365 Contracts, (b)

information necessary and appropriate to provide notice of the relevant proposed assumption and

assignment of 365 Contracts that may be Desired 365 Contracts and rights thereunder, (c) Cure

Amount, if any, and (d) the procedures for objecting thereto, on all counterparties to the 365

Contracts and all parties on the Rule 2002 Notice List. Service of such Initial Assumption and

Assignment Notice as set forth herein shall be deemed good and sufficient notice of, among other

things, the potential assumption and assignment of the 365 Contracts, the applicable Cure Amounts

related thereto, and the procedures for objecting thereto, and no other or further notice is necessary.

33. Any objection with respect to the Debtors’ proposed Cure Amount for any 365

Contract included in the Initial Assumption and Assignment Notice, or a supplemental or amended

Initial Assumption and Assignment Notice filed prior to the Initial Assumption and Assignment


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Notice Deadline, shall be filed on or prior to September 21, 2021, for any Counterparties to 365

Contracts. Any Cure Objection must (a) be in writing; (b) comply with the applicable provisions

of the Bankruptcy Rules and Bankruptcy Local Rules; (c) be filed with the Court by the Cure

Objection Deadline; and (d) state with specificity the grounds for such objection, including,

without limitation, the fully liquidated cure amount and the legal and factual bases for any

unliquidated cure amount that the Counterparty believes is required to be paid under Bankruptcy

Code sections 365(b)(1)(A) and (B) for the applicable Desired 365 Contract, along with the

specific nature and dates of any alleged defaults, the pecuniary losses, if any, resulting therefrom,

and the conditions giving rise thereto.

34. If, after the Initial Assumption and Assignment Notice Deadline, additional

executory contracts or unexpired leases of the Debtors are determined to be potential Desired 365

Contracts in connection with an applicable Sale Transaction, or the Debtors seek to modify the

previously stated Cure Amount associated with any 365 Contract, as soon as practicable thereafter,

the Debtors shall file with the Court and serve, by overnight delivery, on the applicable

Counterparties, a supplemental or amended Initial Assumption and Assignment Notice, and such

Counterparties shall file any objection to the Cure Amount by the later of (x) the Cure Objection

Deadline and (y) seven (7) days following service of the supplemental or amended Initial

Assumption and Assignment Notice.

35. The form of Notice of Desired 365 Contracts, substantially in the form attached as

Exhibit 4, is APPROVED.

36. The Debtors shall serve, via email, if available, or first-class mail, the Notice of

Desired 365 Contracts that contains (a) the list of Desired 365 Contracts, (b) information necessary

and appropriate to provide notice of the relevant proposed assumption and assignment of the


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Desired 365 Contracts and rights thereunder, (c) Cure Amount, to the extent amended from the

Initial Assumption and Assignment Notice, and (d) the procedures for objecting thereto, on all

counterparties to the 365 Contracts and all parties on the Rule 2002 Notice List. Service of such

Notice of Desired 365 Contracts as set forth herein shall be deemed good and sufficient notice of,

among other things, the assumption and assignment of the 365 Contracts, the applicable Cure

Amounts related thereto (to the extent amended from the Initial Assumption and Assignment

Notice), and the procedures for objecting thereto, and no other or further notice is necessary.

37. The inclusion of a 365 Contract on the Initial Assumption and Assignment Notice

will not (a) obligate the Debtors to assume any 365 Contract listed thereon nor the Successful

Bidder to take assignment of such 365 Contract or (b) constitute any admission or agreement of

the Debtors that such 365 Contract is an executory contract.

38. Any objection to a Successful Bidder’s proposed adequate assurance of future

performance (“Adequate Assurance Objection”) must be filed on or prior to October 5, 2021

(the “Adequate Assurance Objection Deadline”), and all such objections must specify what the

objecting party believes is required to provide such adequate assurance.

39. If no Adequate Assurance Objection is timely received with respect to a Desired

365 Contract: (a) the Counterparty to such Desired 365 Contract shall be deemed to have consented

to the assumption by the Debtors and assignment to the Successful Bidder of the Desired 365

Contract, and be forever barred from asserting any objection with regard to such assumption and

assignment (including, without limitation, with respect to adequate assurance of future

performance by the applicable Successful Bidder); (b) any and all defaults under the Desired 365

Contract and any and all pecuniary losses related thereto shall be deemed cured and compensated

pursuant to Bankruptcy Code section 365(b)(1)(A) and (B) upon payment of the Cure Amount set


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forth in the Initial Assumption and Assignment Notice; and (c) the Counterparty shall be forever

barred from asserting any other claims related to such Desired 365 Contract against the Debtors

and their estates or the Successful Bidder, or the property of any of them, that existed prior to the

entry of the order resolving the Adequate Assurance Objections and the Sale Order.

40. To the extent that the parties are unable to consensually resolve any Cure Objection

prior to the commencement of the applicable Sale Hearing, the Debtors may, after consultation

with the Consultation Parties, (i) assume the applicable Desired 365 Contract prior to the resolution

of the Cure Dispute; provided that the Debtors (or the buyer, as may be applicable under the

applicable purchase agreement) shall (a) pay to the applicable Counterparty the undisputed portion

of the Cure Amount within five (5) business days after entry of the applicable Sale Order and (b)

reserve cash in an amount sufficient to pay the disputed portion of the Cure Amount reasonably

asserted by the applicable Counterparty (or such lesser amount as may be fixed or estimated by

the Court or otherwise agreed to by the Counterparty and the Debtors), or (ii) adjourn their request

to assume the contract or lease pending resolution of the Cure Dispute; provided further that, to

the extent the Adjourned Cure Dispute is resolved or determined unfavorably to the Debtors, the

Debtors, after consultation with the Consultation Parties, may withdraw the proposed assumption

of the applicable contract or lease after such determination by filing a notice of withdrawal, which,

in the case of a lease, shall be prior to the expiration of the applicable deadline to assume or reject

unexpired leases under section 365(d)(4) of the Bankruptcy Code. The Debtors shall file notice of

their intention to reserve for a Cure Amount or to adjourn their request for assumption. An

Adjourned Cure Dispute may be resolved after the closing date of the applicable Sale Transaction

in the Debtors’ discretion after consultation with the Consultation Parties.


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V. Sale Hearing.

41. A Sale Hearing to (a) approve a sale of Assets to a Successful Bidder, (b) approve

designation of a Backup Bids and Backup Bidders, if applicable, in accordance with the Bid

Procedures, and (c) authorize the assumption and assignment of the Desired 365 Contracts shall

be held at 1:00 p.m. (CT) on October 6, 2021, and may be adjourned or rescheduled on notice by

the Debtors. At the Sale Hearing, the Debtors will seek Court approval of the Successful Bid(s)

and Backup Bid(s), if applicable. Unless the Court orders otherwise, any Sale Hearing shall be an

evidentiary hearing on matters relating to the applicable Sale Transaction(s). If a Successful Bidder

cannot or refuses to consummate the applicable Sale Transaction because of the breach or failure

on the part of such Successful Bidder, the Debtors may, in accordance with the Bid Procedures,

designate the applicable Backup Bid to be the new Successful Bid and the Backup Bidder to be

the new Successful Bidder, and the Debtors shall be authorized, but not required, to consummate

the applicable Sale Transaction with the Backup Bidder without further order of the Court.

42. Any and all objections, if any, to any proposed Sale Transaction must be filed no

later than October 1, 2021. Any and all objections, if any, to any proposed adequate assurance

must be filed no later than October 5, 2021. For avoidance of doubt, any objections to a Successful

Bidder’s proposed assignment of any Desired 365 Contract, including the proposed form of

adequate assurance of future performance, will be resolved at the applicable Sale Hearing. If such

Adequate Assurance Objections are unable to be resolved at the Sale Hearing, a further hearing at

11:00 a.m. (prevailing Central Time) on October 12, 2021 (the “Adequate Assurance Hearing”)

will be held solely to consider the Adequate Assurance Objections.

VI. Miscellaneous.

43. No insider of the Debtors who (a) intends to submit a bid on the Assets or (b) has

an agreement, understanding, or expectation with a bidder who intends to submit a bid on the


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Assets may use or share information about other bids with any bidder, and all such insiders must

recuse themselves from all deliberations on other bids or voting discussions of the board of

directors about any bid. All such deliberations or voting discussions shall involve only the Chief

Restructuring Officer and independent board members.

44. This Order and the Bid Procedures shall be interpreted so as to afford the Debtors,

in consultation with the Consultation Parties, the greatest opportunity to maximize the value of the

Assets for the benefit of the Debtors’ estates.

45. Notwithstanding anything to the contrary in any APA, the Successful Bidder shall

permit, for a period of not less than two (2) years, the Debtors, their professionals, the Committee,

its professionals, any direct or indirect successors to any of the foregoing (collectively, the

“Permitted Parties”) access to all books and records of the Debtors that are required Assets

relating to the Debtors’ operations prior to the applicable Closing Date and are in the Successful

Bidder’s (or any affiliate’s, agent’s or affiliate’s agent’s) possession or control (collectively, the

“Business Records”) for the purposes of (a) pursuing, assessing, settling, or otherwise dealing

with any assets or liabilities that are excluded from the applicable Sale Transaction; (b) pursuing,

assessing, defending, settling, or otherwise dealing with (including, without limitation, exercising

rights and remedies with respect to) any claim, action, or cause of action (including, without

limitation, any objection or motion) that any Permitted Party has a right to pursue; (c) assisting

any one or more of the Permitted Parties in connection with or otherwise relating to the claims

reconciliation process relating to the Debtors (including, without limitation, with respect to claims

against any person), including, without limitation, assessing, resolving, settling, and/or otherwise

dealing with priority and administrative claims and any general unsecured claims that accrue prior

to the closing of the applicable Sale Transaction; and (d) without limiting the generality of the


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preceding clauses (a) through (c), otherwise administering the Debtors’ estates (including, without

limitation, the preparation and confirmation of a bankruptcy plan relating to the Debtors and the

preparation of any accompanying disclosure statement, and compliance with any subpoena,

document request, or order of any court compelling any Permitted Party to produce documents to

third parties, winding down the Debtors’ estates, preparing or filing tax returns, and causing audits

to be performed) and/or for any other reasonable purpose.

46. The right of access for the Permitted Parties shall include, without limitation, (a)

the right of such Permitted Party to copy at the Permitted Party’s premises or the location of the

acquired Assets, at such Permitted Party’s expense, such documents and records as they may

request in furtherance of any of the purposes referred to in this Order and (b) the Successful

Bidder’s copying and delivering, at the Permitted Party’s expense, to such Permitted Party such

documents and records as may be requested, but only to the extent such Permitted Party furnishes

the Successful Bidder with a reasonable written description of the material to be copied. The Buyer

shall not dispose of or destroy any of the Business Records before the sixth (6th) anniversary of

the applicable Closing Date and will provide the Permitted Parties and the Court at least ninety

(90) days’ written notice, in the form of a notice filed with the Court, before doing so, and will

provide each Permitted Party that requests copies of any Business Records within such ninety (90)

day period copies of all requested Business Records at the requesting party’s expense.

47. The Successful Bidder shall use commercially reasonable efforts to make

reasonably available to Permitted Parties employees of the business to assist the Permitted Parties

in connection with the administration of the Debtors’ estate as set forth in this Order.

48. Except as otherwise provided herein, any objection provided pursuant to any of the

provisions set forth in the Motion must: (a) be in writing, (b) comply with the applicable provisions


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of the Bankruptcy Rules and Bankruptcy Local Rules, (c) state with particularity the legal and

factual basis for the objection and the specific grounds therefor, and (d) be filed with this Court

via ECF.

49. Any substantial contribution claims pursuant to section 503(b)(3)(D) of the

Bankruptcy Code or other applicable statute by any Potential Bidder are deemed waived, to the

extent based on such Potential Bidder’s submission of a bid.

50. The Debtors are authorized and empowered to take such action as may be necessary

to implement and effect the terms and requirements established under this Order.

51. This Order shall constitute the findings of fact and conclusions of law and shall take

immediate effect upon execution hereof.

52. Notwithstanding Bankruptcy Rules 6004(h), 6006(d), 9014, or otherwise, this

Court, for good cause shown, orders that the terms and conditions of this Order shall be

immediately effective and enforceable upon its entry.

53. This Court shall retain jurisdiction with respect to all matters arising from or related

to the implementation or interpretation of this Order, including, but not limited to, any matter,

claim, or dispute arising from or relating to the Bid Procedures, any Stalking Horse APA, and the

implementation of this Order.

54. Unless the Court orders otherwise, the hearings referenced herein will be conducted

by Zoom video according to the procedures in the attached Addendum.

IT IS SO ORDERED.


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Approved for entry:

MCDERMOTT WILL & EMERY LLP /s/ Marcus A. Helt Marcus A. Helt (Admitted Pro Hac Vice) Jack G. Haake (Admitted Pro Hac Vice) 2501 North Harwood Street, Suite 1900 Dallas, Texas 75201 Tel: (214) 210-2821 Fax: (972) 528-5765 [email protected] [email protected]

Counsel for the Debtors and Debtors in Possession

GREENBERG TRAURIG, LLP

/s/ Kevin J. Walsh Kevin J. Walsh (Admitted Pro Hac Vice) One International Place, Suite 2000 Boston, Massachusetts 02110 Tel: (617) 310-5263 [email protected] Counsel for UMB Bank, N.A., in its capacity as successor Bond Trustee under the Bond Indentures

SILLS CUMMIS & GROSS PC /s/ Andrew Sherman Andrew Sherman [Admitted Pro Hac Vice] Boris Mankovetskiy [Admitted Pro Hac Vice] One Riverfront Plaza Newark, New Jersey 07102 Tel: (973) 643-7000 Fax: (972) 643-6500 [email protected] [email protected] Counsel for the Committee /s/ Jeffrey S. Grasl Jeffrey S. Grasl Office of the United States Trustee Department of Justice Office of the United States Trustee 701 Broadway, Suite 317 Nashville, TN 27203-3966 Newark, New Jersey 07102 Tel: (615) 736-2254 [email protected] United States Trustee


ADDENDUM TO ORDER: Information Regarding Video and Audio Access To Court Hearing and Conduct of Participants

The following information supplements the Order to which this Addendum is attached. It has been determined that the hearing described in the preceding Order (“Hearing”) should not be conducted in-person in the courtroom at this time but instead will be handled through video and telephonic means. This Addendum establishes the procedures to facilitate that arrangement.

1. Under Federal Rule of Civil Procedure 43, made applicable in this case under Federal Rule of Bankruptcy Procedure 9017, the Court, for good cause in compelling circumstances and with appropriate safeguards, may permit testimony in open court by contemporaneous transmission from another location. Because of continuing issues related to the COVID-19 virus, the Court finds that the need for social distancing constitutes good cause and compelling circumstances to permit court hearings and testimony by video and audio as set forth herein.

2. The Hearing will take place with active participants utilizing Zoom video conferencing technology, supplemented with toll-free telephone audio access for any persons wishing to listen to the proceedings without active participation.

3. Any attorney who has filed a notice of appearance in this case will be provided a link for video access and any necessary instructions via email in advance of the Hearing. Any other party who wishes to actively participate in the Hearing but who has not filed a notice of appearance must file a Request to Participate by Video in the format attached to this order no later than close of business the day before the Hearing. After such request is made, a link for video access to the Hearing and further instructions will be provided by Court staff via e-mail.

4. In the absence of a waiver of the requirement from the Court, witnesses must participate by video.1 Counsel for the party presenting the witness must coordinate all aspects of the witness’s video participation, including taking such steps in advance as necessary to assure the witness has a working computer or device with a camera, microphone, required bandwidth connection, and instructions in use of Zoom conferencing technology. Witnesses will be sworn in by video and their testimony will be accepted and binding as if they were testifying live in the courtroom.

5. If a witness will be asked to review an exhibit during testimony, counsel must make arrangements in advance to assure that the witness has access to a digital copy of the uploaded exhibit or must be prepared to use the screen-sharing feature of Zoom to display the exhibit after making arrangements in advance with Court staff.

1 Counsel who have been provided the video link may share the link for the Hearing with their witnesses.


6. Only one participant is permitted per video link and camera; i.e., counsel should not swap his/her device with co-counsel or witness during the Hearing.

7. The Court may determine that some testing of the Zoom technology is advisable in advance of the Hearing. In that event, counsel for any participating party shall promptly cooperate in making such arrangements if contacted by the Court staff.

8. In order to assure public access to the Hearing in a manner reasonably similar to an in-person proceeding, any person that wishes to listen only and who will not otherwise be participating in the Hearing may access the Hearing via the following Zoom audio-only call-in information:

Toll-Free Call-In Number: 833-568-8864 Meeting ID: 160 6111 5865 (followed by # symbol) Participant ID: None needed – just press # symbol if requested.

9. All parties participating by either video or audio should make the connection approximately 5-10 minutes before the scheduled start time for the Hearing.

10. During the Hearing, all participants must mute their phone, computer or electronic device when not speaking. Also, all participants appearing by video should:

a. Dress in appropriate court attire; b. Ensure their video background is professional and not distracting to

the proceedings; c. Silence electronic devices including cell phones and notifications on

the device being used for the video; d. Wait until called upon by the Court before speaking; e. Not speak over other participants; f. Participate from a quiet location; and g. Not leave the room or move the device during the Hearing except for

minor camera adjustments when necessary.2 11. Participants are reminded that photographing (including screenshots),

recording, or further broadcasting or sharing images from the Hearing is strictly prohibited. Violation of these prohibitions may result in sanctions. All hearings will continue to be recorded using the Court’s official digital recording system. The process for requesting an official transcript has not changed.

IT IS SO ORDERED.

2 It is important to remember that the Judge and other participants appearing by video can see you during the video even when you are not speaking.


{Style of Case}

REQUEST TO PARTICIPATE BY VIDEO

The undersigned seeks permission to participate by video in the Hearing

identified below and certifies that the requesting party will comply with the order

entered in this case establishing procedures for such Hearing:

Subject of Hearing:

Date of Hearing:

Attorney requesting to appear by video:

Client of attorney requesting to appear by video:

Nature of client’s Involvement in the case:

Anticipated extent of participation in Hearing (argument, witness

examination, etc.):

E-Mail address to provide video access link and additional instructions:

Any other information pertinent to request:

Dated: Name:

Address:

Phone Number:

E-mail:


EXHIBIT 1

Bid Procedures


1


NASHVILLE DIVISION


) ) ) ) ) ) )



BID PROCEDURES FOR THE SALE OF SUBSTANTIALLY ALL OF THE DEBTORS’ ASSETS

The above-captioned debtors and debtors in possession (each a “Debtor” or collectively, the “Debtors”) have filed chapter 11 cases (the “Chapter 11 Cases”) pending in the United States Bankruptcy Court for the Middle District of Tennessee (the “Court”), which are jointly administered as case number 3:20-BK-05438 (RSM).

Each Debtor proposes to conduct an auction (the “Auction”) for the sale (the “Sale”) of some or substantially all of each Debtors’ assets and operations packages (each an “Asset Package(s),” and, collectively, the “Assets”) and will proceed in in accordance with the Order Approving Bid Procedures for Sale of Substantially All of the Debtors’ Assets, (B) Scheduling Auction for and Hearing to Approve Sale of Substantially All of the Debtors’ Assets, (C) Approving Form and Manner of Notice of Sale, Auction, and Sale Hearing, (D) Approving Assumption and Assignment Procedures, and (E) Granting Related Relief entered by the Court on __________ ___, 2021 [Docket No. ____] (the “Bid Procedures Order”),2 which approved the Bid Procedures set forth herein (the “Bid Procedures”).

These Bid Procedures describe, among other things: (i) the procedures for bidders to submit bids for an Asset Package or the Assets; (ii) the ability for each of the Debtors to designate a Stalking Horse Bid (as defined below) and Stalking Horse Bidder (as defined below); (iii) the manner in which bidders and bids become Qualified Bidders (as defined below) and Qualified Bids (as defined below); (iv) the conduct of the Auction if the Debtors receive Qualified Bids; (v) the procedure for the ultimate selection of any Successful Bid (as defined below) and any Backup Bid 1 The jointly administered respective case numbers in these chapter 11 cases include: MTPC, LLC (“MTPC”), Case Number 3:20-bk-05438; The Proton Therapy Center, LLC (“PCPTK”), Case Number 3:20-bk-05439; PCPT Hamlin, LLC (“PCPT Hamlin,” and collectively with PCPTK and MTPC, the “Debtors”), Case Number 3:20-bk-05440. The Debtors’ service address is: 1400 Dowell Springs Boulevard, Suite 350, Knoxville, Tennessee 37909-2447. 2 All capitalized terms used but not otherwise defined herein shall have the meaning ascribed to them in the Bid Procedures Order.


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(as defined below); and (vi) the process for the Court to approve the sale of an Asset Package or the Assets pursuant to the Successful Bid at the hearing before the Honorable Randal S. Mashburn, United States Bankruptcy Judge. Unless expressly indicated, these Bid Procedures apply to all bidders regardless of the phase of the Auction in which the bidder intends to participate or whether the bidder submits bids for an Asset Package or the Assets.

A form of the purchase agreement for a Sale [is] [will be] posted in the Debtors’ electronic data room (the “Form APA”). As provided for below, the Debtors are soliciting bids for the proposed acquisition of the Assets, in accordance with the Bid Procedures (the “Bidding Process”), which require, among other things, the potential purchasers submit an executed asset purchase agreement, along with a marked version evidencing any changes to the Form APA, or in the event of potential Stalking Horse Bids or in the case of overbids to the Stalking Horse Bid, in comparison to the Stalking Horse APA. The Debtor will consider all bids that comply with the terms of these Bid Procedures.

Summary of Important Dates

Milestone Proposed Date

Entry of the Bid Procedures Order On or before August 27, 2021 Initial Bid Deadline 5:00 p.m. (prevailing Central Time) on August

31, 2021

Initial Assumption and Assignment Notice Deadline

August 31, 2021

Cure Objection Deadline September 21, 2021

Qualified Bid Deadline 5:00 p.m. (prevailing Central Time) on September 23, 2021

Auction (if necessary) 9:00 a.m. (prevailing Central Time) on September 28, 2021

Deadline to file (A) Post-Auction Notice and (B) Notice of Desired 365 Contracts

September 29, 2021

Sale Objection Deadline October 1, 2021


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Adequate Assurance Objection Deadline October 5, 2021

Sale Hearing (subject to the availability of the Court)

1:00 p.m. (prevailing Central Time) on October 6, 2021

Adequate Assurance Issues Hearing, if any 11:00 a.m. (prevailing Central Time) October 12, 2021

Any interested bidder should contact, as soon as practicable:

Houlihan Lokey Capital, Inc. (“Houlihan Lokey”), in writing, expressing your interest in an Asset Package or the Assets to Andrew Turnbull ([email protected]) and Daniel Martin ([email protected]).

Assets to be Sold

Each of the Debtors seek to sell substantially all of their Assets in one or more Sale transactions (a “Sale Transaction”). Each of the Debtors’ businesses is comprised of a proton therapy center as described below and related assets. Parties may submit bids for the purchase of any of the following Asset Packages or the Assets in accordance with the terms and conditions set forth herein:

a. The Proton Therapy Center, LLC: Operating proton therapy center located in Knoxville, Tennessee with three (3) active treatment rooms and the related assets owned by the Debtor.

b. MTPC, LLC: Operating proton therapy center located in Franklin, Tennessee with three (3) active treatment rooms and the related assets owned by the Debtor.

c. PCPT Hamlin, LLC: The building, equipment, and other assets owned by the Debtor relating to the facility in Orlando, Florida, which was to be operated as a proton therapy center, where construction is substantially complete and equipment installation was commenced but is currently on hold.

The Debtors are considering all bid proposals but are seeking a sale of substantially all Assets; therefore, they encourage bidders to provide flexibility with regard to Assets Packages included in proposals.

Except as explicitly set forth in the APA, any Sale of an Asset Package or the Assets will be transferred on an “as-is, where-is” basis, with all faults, and without representations or warranties of any kind, nature, or description by the Debtors, their agents or estates, whether written, verbal, express, implied, or by operation of law.


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Marketing Process

The Debtors, in consultation with Houlihan Lokey, have been in contact with a group of interested parties and may supplement with additional parties (each, a “Contact Party,” and collectively, the “Contact Parties”) who the Debtors believe may be interested in consummating an acquisition of an Asset Package or the Assets.

To participate in the Bidding Process and to receive access to any confidential materials relating to the Assets (the “Diligence Materials”), each Contact Party must submit to the Debtors, through Houlihan Lokey, an acceptable confidentiality agreement (a “Confidentiality Agreement”), signed and transmitted by the person or entity wishing to have access to the Diligence Materials. All requests for Diligence Material must be directed to Houlihan Lokey. Each Contact Party who qualifies for access to the Diligence Materials shall be a “Potential Bidder.” Except as specifically noted in the paragraph immediately below, the same access and information will be made available to each Potential Bidder.

The Debtors and their advisors shall coordinate all reasonable requests from Potential Bidders for additional information and due diligence access; provided that the Debtors may decline to provide such information to Potential Bidders who, at such time and in the Debtors’ reasonable business judgment after consultation with the Consultation Parties (as defined below) have not established, or who have raised doubt, that such Potential Bidder intends in good faith to, or has the capacity to, consummate the applicable Sale.

The Debtors also reserve the right to withhold Diligence Materials that the Debtors determine are sensitive after notifying the Potential Bidder requesting such materials of such determination. Each Potential Bidder shall comply with all reasonable requests for additional information and due diligence access requested by the Debtors or their advisors regarding the ability of the Potential Bidder to consummate the applicable Sale. Failure by a Potential Bidder to comply with such reasonable requests for additional information and due diligence access may be a basis for the Debtors to determine, with the consent of the Consultation Parties, that a bid made by such Potential Bidder is not a Qualified Bid.

Each recipient of Diligence Materials agrees to use, and to instruct its advisors and representatives to use, such confidential information only in connection with the evaluation of bids during the Bidding Process or otherwise in connection with these Chapter 11 Cases or in accordance with the terms of any applicable Confidentiality Agreement.

Designation and Notice of Stalking Horse Bidder(s)

The Debtors are authorized, but not obligated, in an exercise of their business judgment, after consultation with the Consultation Parties and subject to the notice requirements and objection procedures set forth in the Bid Procedures Order, to: (a) select one or more Qualified Bidders to act as stalking horse bidders for one or more Asset Packages or the Assets (each a “Stalking Horse Bid” and the designated bidder a “Stalking Horse Bidder”) and enter into a purchase agreement with respect to a Sale with such Stalking Horse Bidder (each such agreement, a “Stalking Horse APA”); and (b) in connection with any Stalking Horse APA with a Stalking Horse Bidder, offer, after consultation with the Consultation Parties or as otherwise approved by the Court, (i) a breakup


5

fee (the “Breakup Fee”) and (ii) to reimburse reasonable and documented out-of-pocket fees and expenses of the Stalking Horse Bidder (the “Expense Reimbursement,” and together with the Breakup Fee, the “Bid Protections”); provided, however, that with respect to any particular Stalking Horse APA, (i) the total Breakup Fee offered shall not exceed three percent (3.0%) of the cash purchase price contemplated by such Stalking Horse APA, (ii) the total Expense Reimbursement shall not exceed $500,000 in the aggregate, and (iii) the total Bid Protections shall not exceed four percent (4.0%) of the cash purchase price. The Bid Protections will be paid only (a) if the Debtors close an Alternative Transaction, and NOT because the Stalking Horse Bidder(s) failed to close a Sale Transaction, and (b) from the proceeds of the Alternative Transaction with the non-Stalking Horse Bidder(s) – that is, if there are no such proceeds, then the Bid Protections will not be paid. For the avoidance of doubt, the amount of Bid Protections payable under the Bid Procedures Order shall be calculated on the applicable Asset Package at issue so that, if a Stalking Horse Bid covers multiple Asset Packages – that is, bankruptcy estates – but is outbid on only one Asset Package, the calculation of the Bid Protections payable will based only on the portion of the Stalking Horse Bid that was topped and shall not include consideration of the other Asset Package(s) for which the Stalking Horse Bid was the Successful Bid.

The Stalking Horse Bid(s) shall be deemed a Qualified Bid(s) (as defined below). The Stalking Horse Bidder(s) is and shall be deemed to be a Qualified Bidder (as defined below). If no other Qualified Bids are received, the Stalking Horse Bidder(s) shall be deemed the Successful Bid (as defined below) for the Sale of an Asset Package or the Assets, and after consultation with the Consultation Parties, the Debtors shall seek approval of a Sale to the Stalking Horse Bidder(s) on the terms of the Stalking Horse APA at the Sale Hearing.

Notwithstanding anything herein, if any Consultation Party objects to the selection of any Stalking Horse Bidder(s), such Consultation Party’s objection shall be heard by the Court on an expedited basis, subject to the Court’s availability. Such objection(s) shall not challenge the amount of the Bid Protections authorized in paragraph 22 of the Bid Procedures Order.

Initial Bid Deadline

On or before 5:00 p.m. Central Time on August 31, 2021 (the “Initial Bid Deadline”), parties seeking to be considered as a stalking horse bidder should deliver a Qualified Bid and markup of the Form APA to:

The Debtors’ investment banker, Attn: Andrew Turnbull ([email protected]) and Daniel Martin ([email protected]), Houlihan Lokey Capital, Inc., 111 South Wacker Drive, 37th Floor, Chicago, Illinois 60606; and

The Debtors’ CRO, Mark Andrews ([email protected]), Trinity River Advisors, 325 N. Saint Paul Street, Suite 3600, Dallas, Texas, 75201; and

The Debtors’ co-counsel, Attn: Marcus Helt ([email protected]), McDermott Will & Emery LLP, 2501 North Harwood Street, Suite 1900, Dallas, Texas, 75201.


6

Within one (1) business day of the receipt thereof, the Debtors shall provide copies of the Initial Bids to the Consultation Parties and, in consultation with the Consultation Parties, will evaluate the Initial Bids and will determine whether to accept one or more of the Initial Bids to serve as a Stalking Horse Bid by Stalking Horse Bid Announcement Deadline.

Qualified Bid Deadline

On or before 5:00 p.m. Central Time on September 23, 2021 (the “Qualified Bid Deadline”), Qualified Bids must be delivered to:

The Debtors’ investment banker, Attn: Andrew Turnbull ([email protected]) and Daniel Martin ([email protected]), Houlihan Lokey Capital, Inc., 111 South Wacker Drive, 37th Floor, Chicago, Illinois 60606; and

The Debtors’ CRO, Mark Andrews ([email protected]), Trinity River Advisors, 325 N. Saint Paul Street, Suite 3600, Dallas, Texas, 75201; and

The Debtors’ co-counsel, Attn: Marcus Helt ([email protected]), McDermott Will & Emery LLP, 2501 North Harwood Street, Suite 1900, Dallas, Texas, 75201; and

On or before 5:00 pm Central Time on September 24, 2021, the Debtors will deliver a copy of each bid received by the Qualified Bid Deadline to the Consultation Parties.

In consultation with the Consultation Parties, but without the need for further Court approval, the Debtors may extend the Qualified Bid Deadline by a reasonable period of time once or successively if the Debtors, after consultation with the Consultation Parties, believe that such extension would further the goal of attaining the highest or otherwise best offer for the Debtors’ assets. The Debtors shall promptly notify all Potential Bidders of any such extension.

Qualified Bids

Each offer, solicitation, or proposal by a Potential Bidder must be determined by the Debtors, in consultation with the Consultation Parties, and satisfy each of the following conditions to be deemed a “Qualified Bid,” and for the Potential Bidder to be deemed a “Qualified Bidder,” unless any such conditions that are not satisfied are waived by the Debtors in consultation with the Consultation Parties. For the avoidance of doubt, Potential Bidders may submit Bids for an Asset Package or the Assets.

Bid Requirements. A bid will be considered a Qualified Bid only if the bid complies with all of the following requirements:

1. Minimum Bid if Stalking Horse Bidder is Designated: Each initial bid must be in an amount that exceeds by $250,000 a combination of (a) the purchase price agreed to by the Stalking Horse Bidder, plus (b) the Stalking Horse Bid


7

Protections. A bid that is otherwise a Qualified Bid will not be disqualified if a Stalking Horse Bidder is designated after the bid is qualified.

2. Cash Deposit. Each bid must be accompanied by a cash deposit by wire transfer to an escrow agent selected by the Debtors (the “Deposit Agent”) in an amount equal to at least ten percent (10%) of the cash purchase price set forth in connection with such bid (any such deposit, a “Good Faith Deposit”).

3. Executed Agreement. In both PDF and Microsoft Word format, an executed copy of an asset purchase agreement (the “APA”) and a copy of same that has been marked against the Form APA (if there is no Stalking Horse Bid) or, if applicable, the Stalking Horse APA, a copy of which is located in the Data Room.

4. Purchase Price: Each bid must clearly identify the purchase price to be paid (the “Purchase Price”), and whether the bid is based on an all-cash offer or consists of certain non-cash components, including, without limitation, the assumption of liabilities.

5. Acquired Assets: Each bid must clearly identify, in writing, the particular assets the Potential Bidder seeks to acquire from the Debtors, including any contracts and leases of the Debtors that would be assumed and assigned in connection with a proposed Sale. If the Potential Bidder seeks to acquire any cause of action under chapter 5 of the Bankruptcy Code or applicable state-law equivalents or any commercial or other tort claims arising on or before the Closing Date of the Sale Transaction(s), or any proceeds of any such causes of action or claims, including without limitation, all such claims against (a) current and former directors, officers, managers, and members of the Debtors and/or their affiliates, (b) any of the Debtors’ and/or their affiliates, auditors and consultants, and/or (c) the Debtors’ affiliates, subsidiaries, related service providers, or related persons or entities (“Causes of Action”), the Potential Bidder shall specify the amount of the Purchase Price that is assigned to the purchase of such Causes of Action.

6. Assumed Liabilities: Each bid must clearly identify, in writing and as applicable, the particular liabilities, if any, the Potential Bidder seeks to assume. For the avoidance of


8

doubt, a Qualified Bid may include a bid for less than all or substantially all of the Debtors’ liabilities.

7. Bidder Identity: Identify (i) the party submitting the bid (and any equity holders or other financial investors in such party or such bid, in the case of a Qualified Bidder which is an entity specially formed for the purpose of effectuating the applicable contemplated Sale Transaction), including whether the party submitting the Bid and any of its members, principals, directors, or officers are in any way affiliated with the Debtors, and the representatives thereof who are authorized to appear and act on its behalf for all purposes regarding the applicable contemplated Sale Transaction, and (ii) the material terms of any such participation, including any binding agreements, arrangements, undertakings, contractual obligations or understandings concerning a collaborative or joint bid or any other combination concerning the proposed bid.

8. Assumed Contracts: (i) Identify with particularity the Debtors’ executory contracts and unexpired leases with respect to which the Qualified Bidder seeks to assume and receive an assignment, (ii) provide for the payment by the Qualified Bidder of all applicable Cure Amounts payable with respect to such executory contracts and unexpired leases to be assumed and assigned contracts and leases under the Bankruptcy Code, and (iii) identify with particularity the Debtors’ other contracts and leases with respect to which the Qualified Bidder seeks to assume and receive an assignment.

9. Insider/Affiliate Compensation and Employment. Each Bid must identify whether it includes any proposed compensation or bonus arrangements involving any insider of the Debtors or makes any representations or commitments regarding future employment for any insider of the Debtors or their Non-Debtor Affiliates (as defined below).

10. Adequate Assurance Information. Include sufficient financial or other information (the “Adequate Assurance Information”) to establish adequate assurance of future performance with respect to any lease or contract to be assigned to the Qualified Bidder in connection with the proposed Sale Transaction. The bid shall also identify a contact person (with relevant contact information) that counterparties to any lease or contract can contact to obtain additional Adequate Assurance Information.


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11. Breakup Fee or Expense Reimbursement: Each bid must indicate that, if not selected as a Stalking Horse Bidder, the bidder will not seek any transaction or break-up fee, expense reimbursement, or similar type of payment, including any claim under section 503(b)(3)(D) of the Bankruptcy Code.

12. Contingencies and Approvals. Each bid must include a statement that there are no conditions precedent to the Potential Bidder’s ability to close the Sale, including that there are no due diligence or financing contingencies to the bid, and that all necessary internal and shareholder approvals have been obtained prior to the Bid; each Bid may be subject to the satisfaction of the conditions precedent to the Sale, as set forth in the APA.

Each bid shall not be conditioned on the receipt of any third party approvals or consents (excluding required Court approval and required governmental, licensing or regulatory approval or consent, if any), including without limitation board of director approval. With respect to any governmental, licensing or regulatory approvals or consents, each bid must include a description of all such approvals or consents that are required to consummate the proposed transaction, together with evidence satisfactory to the Debtors in their sole discretion, after consultation with the Consultation Parties, of the ability of the bidder to obtain such approvals or consents in a timely manner, as well as a description of any material contingencies or other conditions that will be imposed upon, or that will otherwise apply to, the obtainment or effectiveness of any such approvals or consents;

13. Proof of Financial Ability to Perform. Each bidder must provide written evidence sufficient for the Debtors to reasonably conclude, after consultation with the Consultation Parties, that the Potential Bidder has or will have the necessary financial ability to consummate the Sale and provide adequate assurance of future performance under all contractual agreements to be assumed and assigned in accordance therewith. Such information should include the following:

a. contact information for verification of financing sources;


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b. evidence of the Potential Bidder’s internal resources and proof of any outside funding sources that are needed to close the Sale; and

c. the Potential Bidder’s current financial statements and any such other form, financial disclosure or credit-quality support information or enhancement reasonably acceptable to the Debtors demonstrating that such Potential Bidder has or will have the ability to close the Sale.

14. Timely. Each bid must be received on or before the Qualified Bid Deadline (as such deadline may be extended in accordance with these Bid Procedures).

15. Irrevocable. Each bid must be accompanied by an executed letter stating that the bidder’s offer is irrevocable until consummation of a transaction involving the assets identified in such bid and that such bidder agrees to serve as a Backup Bidder (as defined herein) in accordance with these Bid Procedures.

Bidder Representations. By submission of its bid, each Potential Bidder shall be deemed to acknowledge and represent that it (i) has had an opportunity to conduct any and all due diligence regarding the Assets that are the subject of the Auction prior to making any such bids, (ii) has relied solely on its own independent review, investigation and/or inspection of any documents and/or the Assets in making its bid, (iii) did not rely on any written or oral statements, representations, promises, warranties or guaranties whatsoever, whether express, implied, by operation of law or otherwise, regarding the Assets, or the completeness of any information provided in connection therewith, except as expressly stated in these Bid Procedures or, as to the Successful Bidder(s), the asset purchase agreement(s) with such Successful Bidder(s), and (iv) the Assets will be purchased on an “as-is,” “where-is” basis. Without the written consent of the Debtors, after consultation with the Consultation Parties, a Qualified Bidder may not amend, modify, or withdraw its Qualified Bid, except for proposed amendments to increase the amount or otherwise improve the terms of its Qualified Bid, during the period that such Qualified Bid is required to remain irrevocable.

Non-Conforming Bids. In their sole and absolute discretion after consultation with the Consultation Parties, the Debtors shall make a determination regarding whether a bid constitutes a Qualified Bid. After consultation with the Consultation Parties, the Debtors shall have the right to deem a bid a Qualified Bid even if such bid does not conform to one or more of the requirements above. If the Debtors receive a bid prior to the Qualified Bid Deadline that is not a Qualified Bid, the Debtors may provide the bidder with the opportunity to remedy any deficiencies following the Qualified Bid Deadline and prior to the Auction. If any bid is determined by the Debtors not to be a Qualified Bid, and the applicable bidder fails to remedy such bid in accordance with these Bid


11

Procedures, the Debtors shall promptly instruct the Deposit Agent to return such bidder’s Good Faith Deposit. Notice of Qualified Bidders. Prior to the commencement of the Auction, the Debtors shall provide the identity of all Qualified Bidders to Counterparties of 365 Contracts who have requested the identity of all Qualified Bidders and executed a non-disclosure agreement.

Miscellaneous. After consultation with the Consultation Parties, the Debtors may (a) impose, before the Sale Hearing, additional terms and conditions on the Sale of any Asset as they determine to be in the best interests of the Estates, their creditors, and any other party in interest, (b) extend any deadline or date in the Bid Procedures, (c) adjourn the Auction at the Auction, (d) adjourn the Sale Hearing in open court without further notice or permission from the Court, (e) adjourn the Auction prior to the Auction without permission from the Court by filing a notice on this Court’s docket, (f) withdraw from the Auction any Asset at any time prior to, at, or after the Sale Hearing, and (g) cancel the Auction.

Evaluation of Qualified Bids

All Qualified Bids will be considered by the Debtors in consultation with the Consultation Parties; bids other than Qualified Bids will not be considered. The Debtors may, after discussion with the Consultation Parties, evaluate bids on any grounds, including, without limitation (in no particular order):

1. the amount of the purchase price, including non-cash consideration and assumed liabilities, set forth in the bid;

2. the transaction structure and execution risk, including conditions to and certainty of closing; termination provisions; status of financing and financial wherewithal to meet all commitments; and required governmental or other approvals;

3. the anticipated timing to closing;

4. the impact on patients, operations and the Debtors’ employees;

5. any other factors the Debtors may reasonably deem relevant consistent with their fiduciary duties.

For the avoidance of doubt, the presence of any governmental, licensing, regulatory, or other approvals or consents in a bid, and the anticipated timing or likelihood of obtaining such approvals or consents, may be grounds for the Debtors, in their sole discretion, after consultation with the Consultation Parties, to determine that such bid (i) is not a Qualified Bid or (ii) is not higher or otherwise better than any other Qualified Bid.


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Baseline Bid

In evaluating the Qualified Bids, the Debtors, after consultation with the Consultation Parties, shall also make a determination regarding which Qualified Bid(s) is the highest or best Qualified Bid for the Asset Package or Assets and will therefore serve as the starting point at the Auction (each, a “Baseline Bid”).

Prior to the start of the Auction, the Debtors shall provide notice to each Qualified Bidder designating the Baseline Bid.

Auction

If more than one timely Qualified Bids are received by the Qualified Bid Deadline, an auction for the Assets will be September 28, 2021, starting at 9:00 a.m. Central Time at the offices of Waller Lansden Dortch & Davis LLP, 511 Union Street, Suite 2700, Nashville, Tennessee 37219. Only Qualified Bidders may participate in the Auction. All Qualified Bidders, or their authorized representatives with authority to bind the Qualified Bidder, must be physically present at the Auction. At the commencement of the Auction, and after consultation with the Consultation Parties, the Debtors shall announce the bidding order, which shall be based on various factors including the amount of the Qualified Bidder’s bid (from low to high). Initial minimum overbid increments at the Auction shall be in the amount of $250,000 cash (the “Minimum Overbid”). At the Debtors’ discretion, in consultation with the Consultation Parties, the Debtors can change or alter the bidding order, the amount of the Minimum Overbid, or any auction element, and allow or disallow Qualified Bidders to pass in any given round and otherwise conduct the Auction in a way that they believe will maximize value.

No Collusion; Good-Faith Bona Fide Offer

Each Qualified Bidder participating at the Auction will be required to confirm on the record at the Auction that (a) it has not engaged in any collusion with respect to the Sale or Bidding Process (including that it has no agreement with any other Bidder or Qualified Bidder to control the price), (b) its Qualified Bid is a good-faith, bona fide offer, (c) it intends to consummate the Sale if selected as the Successful Bidder or the Backup Bidder, (d) all pre- and post-bankruptcy relationships with insiders or agents of the Debtors, other bidders, or major creditors has been disclosed, (e) all compensation, employment, other benefit, or agreement contemplated or promised to insiders of the Debtors, Debtors’ management, major creditors, other bidders, or material equity owners or groups has been disclosed, (f) all material terms of the proposed purchase is disclosed to the Court, and (g) the Qualified Bidder did not receive information from the Debtors that was not in the data room.

Selection of the Successful Bid

At the conclusion of the Auction, in consultation with the Consultation Parties, the Debtors will announce the highest and/or best Qualified Bid (the “Successful Bid”) submitted by a Qualified Bidder (the “Successful Bidder”) and the next highest and/or best Qualified Bid (the “Backup Bid”) submitted by a Qualified Bidder (the “Backup Bidder”). The Debtors will seek approval of the Successful Bid and the Backup Bid at the Sale Hearing. If for any reason the Successful Bidder fails to timely consummate the purchase of an Asset Package or the Assets, the Debtors, after


13

consultation with the Consultation Parties, may seek to consummate a sale based on the Backup Bid (at which time such Backup Bidder shall be deemed the Successful Bidder) without further approval by the Court. The Backup Bid and the obligation of the Backup Bidder to consummate the Sale of an Asset Package or the Assets shall remain open and in full force, including with respect to the Backup Bidder’s Good Faith Deposit, until the close of a Sale of an Asset Package or the Assets to the Successful Bidder, but in no event longer than sixty (60) days after the entry of the Sale Order.

Return of Deposits

Within three (3) business days after the close of a Sale, the Debtors shall return by check or wire the full amount of each Good Faith Deposit submitted by a party that is not the party with whom the Sale closes. A defaulting Successful Bidder’s (including any Backup Bidder that becomes a Successful Bidder) Good Faith Deposit shall be forfeited to the Debtors, subject to the terms set forth in the Qualified Bidder APA.

Sale Hearing

A hearing to approve a sale based on the Successful Bid shall take place at 1:00 a.m. (CT) on October 6, 2021, in Courtroom 1, on the 1st floor of the United States Bankruptcy Court, 701 Broadway, Nashville, Tennessee 37203.

Deadline to Object to the Proposed Assumption and Assignment (Including Cure Amounts) of Executory Contracts and Unexpired Leases

All objections to the proposed assumption and assignment of executory contracts and unexpired leases (other than objections to proposed adequate assurance of future performance – see below) must be filed prior to or on September 21, 2021.

Deadline to Object to Sale

All objections to the proposed sale and the proposed adequate assurance of future performance under an executory contract or unexpired lease must be filed prior to or on October 1, 2021 (the “Sale Objection Deadline”).

Deadline to Object to Adequate Protection

All objections to the proposed adequate assurance of future performance under an executory contract or unexpired lease must be filed prior to or on October 5, 2021 (the “Adequate Assurance Objection Deadline”). To the extent that Adequate Assurance Objections are unable to be resolved at the Sale Hearing, such objections will be heard at 11:00 a.m. (prevailing Central Time) at the Adequate Assurance Hearing.

Communications with Qualified Bidders

Notwithstanding anything to the contrary in these Bid Procedures, all direct communications between and amongst Qualified Bidders shall involve the Debtors and the Debtors’ advisors. No


14

Qualified Bidder shall communicate with any other Qualified Bidder absent prior written consent from the Debtors, after consultation with the Consultation Parties.

Notice of Bid Procedures, Auction, and Sale Hearing

On the next business day following the entry of the Bid Procedures Order, the Debtors will serve by first-class mail a copy of the Bid Procedures Order and a notice containing the date of the Qualified Bid Deadline, Auction, the Sale Hearing, and the deadline to file objections to the sale to: (a) the Office of the United States Trustee for the Middle District of Tennessee; (b) the Debtors’ 50 largest unsecured creditors on a consolidated basis; (c) the United States Attorney’s Office for the Middle District of Tennessee; (d) the Internal Revenue Service; (e) any party known to have asserted a lien on the Assets; (f) all known affected federal, state, and local regulatory, and taxing authorities; (g) any buyer that signed a Confidentiality Agreement with respect to the Assets; and (h) any party that has requested notice pursuant to Bankruptcy Rule 2002 as of the time of service. Such notice shall be sufficient and proper notice of the sale with respect to known interested parties.

Consultation Parties

The term “Consultation Parties” as used in these Bid Procedures shall mean (i) the Bond Trustee and its professionals, (ii) the Committee and its professionals, and (iii) the United States Trustee, and his counsel. The Debtors shall use their reasonable efforts to consult and confer with the Consultation Parties on all material aspects of the bidding and Auction process in an attempt to maximize value for all parties in interest. However, for the avoidance of doubt, and except as specifically set forth herein, the consultation rights provided to the Consultation Parties by these Bid Procedures shall not limit the Debtors’ discretion in any way nor shall they limit the rights of any Consultation Party to object to any decisions of the Debtors whether or not these Bid Procedures specifically provide for consultation rights with such decisions. All dates are subject to change in the Debtors’ discretion after consultation with the Consultation Parties.

Free and Clear of Any and All Claims and Interests

Except as otherwise provided in the Stalking Horse APA or other successful bidder’s purchase agreement, all of the Debtors’ right, title, and interest in and to the purchased Asset Package or Assets subject thereto shall be sold free and clear of all liens, claims, and interests (collectively, the “Encumbrances”) on an “As-Is” and “Where-Is” basis to the maximum extent permitted by section 363 of the Bankruptcy Code (other than permitted liens and assumed liabilities), with such Encumbrances to attach to the proceeds of the sale of the purchased Asset Package or Assets with the same extent, validity, and priority as such Encumbrances applied against the purchased Asset Package or Assets.

Reservation of Rights by the Debtors

The Debtors reserve the right, in their discretion and subject to the exercise of their business judgment, after consultation with the Consultation Parties, to modify or terminate these Bid Procedures in any manner in the interest of maximizing the value of the Assets, to waive terms and conditions set forth herein, to extend any of the deadlines or other dates set forth herein, to adjourn the Auction and/or Sale Hearing, and/or, subject to the terms of the Stalking Horse APA,


15

to terminate discussions with any and all prospective purchasers (except for the Stalking Horse Bidder(s)) at any time and without specifying the reasons therefor, in each case without further notice but in each case to the extent not materially inconsistent with these Bid Procedures and/or the Bid Procedures Order. Nothing in these Bid Procedures shall require the Debtors to take any action, or to refrain from taking any action, with respect to these Bid Procedures, to the extent that the Debtors determine, or based on the advice of counsel, that taking such action, or refraining from taking such action, as applicable, is required to comply with applicable law or their fiduciary duties under applicable law.

Miscellaneous

Credit Bids. Any party that wishes to submit a credit bid either as a component or as the entirety of the consideration for its Bid shall identify the amount of the claim and the extent, validity, and priority of the lien on which its credit bid is premised. All credit bids shall comply with section 363(k) of the Bankruptcy Code, and all liens on which any such credit bids are based shall be subject to objection and challenge by the Committee and other parties in interest (a “Challenge”) if such objection and challenge rights still exist. Notwithstanding anything to the contrary, nothing in the Bid Procedures Order or these Bid Procedures grants or impairs rights to or of any party to challenge the liens or claims asserted by the Bond Trustee. For purposes of these Bid Procedures, if the Bond Trustee submits a credit bid or bids, the Bond Trustee shall be deemed a Qualified Bidder and its credit bid(s) shall be deemed Qualified Bid(s). Recusal. No insider of the Debtors who (a) intends to submit a bid on the Assets or (b) has an agreement, understanding, or expectation with a bidder who intends to submit a bid on the Assets may use or share information about other bids with any bidder, and all such insiders must recuse themselves from all deliberations on other bids or voting discussions of the board of directors about any bid. All such deliberations or voting discussions shall involve only the Chief Restructuring Officer and independent board members.


EXHIBIT 2

Auction and Sale Hearing Notice


2


NASHVILLE DIVISION


) ) ) ) ) ) )



NOTICE OF PROPOSED SALE OF SUBSTANTIALLY ALL OF THE DEBTORS’ ASSETS, BID PROCEDURES, AUCTION, AND SALE HEARING

PLEASE TAKE NOTICE that the Debtors, by and through their undersigned counsel, sought approval from the United States Bankruptcy Court for the Middle District of Tennessee (the “Court”) to effectuate the sale of substantially all of the Debtors’ assets.

PLEASE TAKE FURTHER NOTICE that on ____________ ___, 2021, the Court entered its Expedited Order (A) Approving Bid Procedures for Sale of Substantially All of the Debtors’ Assets, (B) Scheduling Auction for and Hearing to Approve Sale of Substantially All of the Debtors’ Assets, (C) Approving Form and Manner of Notice of Sale, Auction, and Sale Hearing, (D) Approving Assumption and Assignment Procedures, and (E) Granting Related Relief [Dkt. No. __] (the “Bid Procedures Order”).2 The Bid Procedures Order approved the bid procedures (the “Bid Procedures”) attached as Exhibit 1 to the Bid Procedures Order. The Bid Procedures set the key dates and times related to the Sale of the Assets and assumption and assignment of the executory contracts and unexpired leases.

PLEASE TAKE FURTHER NOTICE that the summary of the Bid Procedures in this notice is provided for convenience only. All interested bidders should carefully read the Bid Procedures Order (including the attached Bid Procedures), and, to the extent of any inconsistences between this notice and the Bid Procedures Order, the Bid Procedures Order shall control.

PLEASE TAKE FURTHER NOTICE that copies of the Bid Procedures Order, all related exhibits, including the Bid Procedures, and any other filings related to the foregoing are 1 The jointly administered respective case numbers in these chapter 11 cases include: MTPC, LLC (“MTPC”), Case Number 3:20-bk-05438; The Proton Therapy Center, LLC (“PCPTK”), Case Number 3:20-bk-05439; PCPT Hamlin, LLC (“PCPT Hamlin,” and collectively with PCPTK and MTPC, the “Debtors”), Case Number 3:20-bk-05440. The Debtor’s service address is: 1400 Dowell Springs Boulevard, Suite 350, Knoxville, Tennessee 37909-2447. 2 All capitalized terms used but not otherwise defined herein shall have the meaning ascribed to them in the Bid Procedures Order.


3

available for free on the website of Debtors’ notice agent, Stretto, at https://cases.stretto.com/MTPC.

PLEASE TAKE FURTHER NOTICE that the deadline by which all Qualified Bids must be actually received by the parties specified in the Bid Procedures is September 23, 2021, at 5:00 pm (prevailing Central Time).

PLEASE TAKE FURTHER NOTICE that, pursuant to the terms of the Bid Procedures Order, if one or more Qualified Bids (in addition to any Stalking Horse Bid) are received by the Qualified Bid Deadline, an auction (“Auction”) to sell the Assets will be conducted on September 28, 2021, starting at 9:00 a.m. (prevailing Central Time) offices of Waller Lansden Dortch & Davis LLP, 511 Union Street, Suite 2700, Nashville, Tennessee 37219, or such other location as shall be timely communicated to all persons entitled to attend the Auction. The Debtors may cancel the Auction pursuant to the Bid Procedures.

PLEASE TAKE FURTHER NOTICE that, if the Debtors do not timely receive more than one Qualified Bid, the Debtors will not conduct the Auction and, instead, will (a) file a notice with the Court identifying the sole Qualified Bid as the Successful Bid for the Assets and (b) promptly seek the Court’s approval of the sale of the Assets.

PLEASE TAKE FURTHER NOTICE that a hearing will be held to approve the sale of the Assets to the Successful Bidder (the “Sale Hearing”) before the United States Bankruptcy Court for the Middle District of Tennessee, 701 Broadway, Nashville, Tennessee 37203 on October 6, 2021, at 1:00 p.m. (prevailing Central Time), or at such time thereafter as counsel may be heard or at such other time as the Court may determine. The Sale Hearing may be adjourned from time to time without further notice to creditors or parties in interest other than by filing a notice on the Court’s docket for these Chapter 11 cases or the making of an announcement at the Sale Hearing.

PLEASE TAKE FURTHER NOTICE that objections to the Sale, if any, (i) must be in writing, (ii) conform to the applicable provisions of the Bankruptcy Code, Bankruptcy Rules, and Local Rules, (iii) state with particularity the legal and factual basis for the objection, and (iv) be filed with the Court no later than October 1, 2021 by the Court.

FAILURE TO ABIDE BY THE BID PROCEDURES, THE BID PROCEDURES ORDER, OR ANY OTHER ORDER OF THE BANKRUPTCY COURT IN THESE CHAPTER 11 CASES MAY RESULT IN THE REJECTION OF YOUR BID.

PLEASE TAKE FURTHER NOTICE THAT ANY PARTY OR ENTITY WHO FAILS TO TIMELY FILE AND SERVE AN OBJECTION TO THE SALE BEFORE THE OBJECTION DEADLINE IN ACCORDANCE WITH THE BID PROCEDURES ORDER SHALL BE FOREVER BARRED FROM ASSERTING ANY OBJECTION TO THE SALE(S), INCLUDING WITH RESPECT TO THE TRANSFER OF THE ASSETS FREE AND CLEAR OF LIENS, CLAIMS, ENCUMBRANCES, AND OTHER INTERESTS.


4

Dated: August ___, 2021 Respectfully submitted,

WALLER LANSDEN DORTCH & DAVIS, LLP

/s/ David E. Lemke David E. Lemke (Tenn. Bar No. 013586)

Tyler N. Layne (Tenn. Bar No. 033401) Gabriela Smith (admitted pro hac vice) 511 Union Street, Suite 2700 Nashville, Tennessee 37219 Tel: (615) 244-6380 Fax: (615) 244-6804 [email protected] [email protected] [email protected] -and-

MCDERMOTT WILL & EMERY LLP

/s/ Marcus A. Helt Marcus A. Helt (admitted pro hac vice) Jack G. Haake (admitted pro hac vice) 2501 North Harwood Street, Suite 1900 Dallas, Texas 75201 Tel: (214) 210-2821 Fax: (972) 528-5765 [email protected] [email protected]



EXHIBIT 3

Initial Assumption and Assignment Notice


2


NASHVILLE DIVISION


) ) ) ) ) ) )



NOTICE OF 365 CONTRACTS THAT MAY BE

ASSUMED AND ASSIGNED IN CONNECTION WITH THE SALE TRANSACTION

PLEASE TAKE NOTICE that on August 13, 2021, the above-captioned Debtors, by and through their undersigned counsel, filed Debtors’ Expedited Motion for Entry of Orders (I)(A) Approving Bid Procedures for Sale of Substantially All of the Debtors’ Assets, (B) Scheduling Auction for and Hearing to Approve Sale of Substantially All of the Debtors’ Assets, (C) Approving Form and Manner of Notice of Sale, Auction, and Sale Hearing, (D) Approving Assumption and Assignment Procedures, and (E) Granting Related Relief and (II) (A) Approving Sale of Substantially All of the Debtors’ Assets, (B) Authorizing Assumption and Assignment of Executory Contracts and Unexpired Leases, and (C) Granting Related Relief [Dkt. No. 647] (the “Motion”).2

PLEASE TAKE FURTHER NOTICE that under the Motion, the Debtors seek authority to, among other things, assume and assign certain executory contracts and unexpired leases under section 365 of the Bankruptcy Code.

PLEASE TAKE FURTHER NOTICE that on _____________, 2021, the United States Bankruptcy Court for the Middle District of Tennessee (the “Court”) entered its Expedited Order (A) Approving Bid Procedures for Sale of Substantially All of the Debtors’ Assets, (B) Scheduling Auction for and Hearing to Approve Sale of Substantially All of the Debtors’ Assets, (C) Approving Form and Manner of Notice of Sale, Auction, and Sale Hearing, (D) Approving Assumption and

1 The jointly administered respective case numbers in these chapter 11 cases include: MTPC, LLC (“MTPC”), Case Number 3:20-bk-05438; The Proton Therapy Center, LLC (“PCPTK”), Case Number 3:20-bk-05439; PCPT Hamlin, LLC (“PCPT Hamlin,” and collectively with PCPTK and MTPC, the “Debtors”), Case Number 3:20-bk-05440. The Debtor’s service address is: 1400 Dowell Springs Boulevard, Suite 350, Knoxville, Tennessee 37909-2447. 2 Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms as set forth in the Motion.


3

Assignment Procedures, and (E) Granting Related Relief [Dkt. No. ___] (the “Bid Procedures Order”).

PLEASE TAKE FURTHER NOTICE that this Initial Assumption and Assignment Notice is being provided pursuant to the Bid Procedures Order. Attached hereto as Schedule 1 is a list of the 365 Contracts that the Debtors may assume and assign to the Successful Bidder along with (a) the name of each non-Debtor counterparty to such 365 Contract (the “365 Contract Counterparty”); and (b) the proposed amount necessary, if any, to cure all monetary defaults, if any, under the such 365 Contract (the “Cure Amounts”). You are receiving this Notice because you are identified as a 365 Contract Counterparty to one or more of the 365 Contracts. If you agree with the Cure Amounts and do not otherwise object to the assumption and assignment of your 365 Contract listed on Schedule 1, you do not need to take any further action.

PLEASE TAKE FURTHER NOTICE that any party seeking to object to the validity of the Cure Amounts (a “Cure Objection”) provided by the Debtors on Schedule 1, or otherwise assert that any other amounts, defaults, conditions or pecuniary losses must be cured or satisfied under any of the 365 Contracts in order to be assigned to the Successful Bidder must file an objection, which must: (a) be in writing; (b) state with specificity the basis for the objection as well as any Cure Amounts that the objector asserts to be due, including each and every asserted default in the applicable contract or lease (in all cases with appropriate documentation in support thereof); (c) comply with the Federal Rules of Bankruptcy Procedure and the Local Rules of Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the Middle District of Tennessee; and (d) be filed and served on the following parties by no later than 5:00 p.m. (prevailing Central Time) September 21, 2021 (the “Cure Objection Deadline”): (i) counsel for the Debtors, Waller Lansden Dortch & Davis LLP, 511 Union Street, Suite 2700, Nashville, Tennessee 37219 (Attn: David E. Lemke, [email protected]); (ii) counsel for the Committee appointed in the Chapter 11 cases, Manier & Herod, P.C., 1201 Demonbreun Street, Suite 900, Nashville, Tennessee 37203 (Attn: Michael E. Collins and Robert W. Miller, ([email protected], [email protected]); and (iii) the Office of the United States Trustee for the Middle District of Tennessee (collectively, the “Objection Recipients”).

PLEASE TAKE FURTHER NOTICE that any non-Debtor counterparty to any 365 Contract who does not file a Cure Objection by the Cure Objection Deadline shall be forever barred from objecting to the Cure Amounts set forth on Schedule 1 or asserting or claiming any cure amount (other than the Cure Amounts) against the Debtors or the Successful Bidder.

PLEASE TAKE FURTHER NOTICE that, prior to the Auction, any non-Debtor counterparty to any 365 Contract may request and, upon executing a non-disclosure agreement, receive the identities of all Qualified Bidders to undertake diligence relating to adequate assurance. To request the identities of all Qualified Bidders, the non-Debtor counterparty should email [email protected].

PLEASE TAKE FURTHER NOTICE that any party seeking to object to a Successful Bidder’s proposed adequate assurance of future performance (an “Adequate Assurance Objection”) must do so: (i) in writing, (ii) comply with the applicable provisions of the Bankruptcy Rules and Local Rules, (iii) specify what the objecting party believes is required to provide such adequate assurance, by October 5, 2021 (the “Adequate Assurance Objection Deadline”).


4

PLEASE TAKE FURTHER NOTICE that the hearing with respect to any Cure Objection or Adequate Assurance Objection may be held (i) at the Sale Hearing or (ii) on October 12, 2021 at 11:00 a.m. (prevailing Central Time), or such other date as the Court may designate. To the extent the Debtors and non-Debtor counterparty to a 365 Contract are able to consensually resolve a Cure Objection or an Adequate Assurance Objection prior to the Sale Hearing, the Debtors shall promptly provide notice to the other Objection Recipients of such resolution.

PLEASE TAKE FURTHER NOTICE that this Initial Assumption and Assignment Notice is subject to the full terms and conditions of the Motion, Bid Procedures Order, and Bid Procedures, which shall control in the event of any conflict. The Debtors encourage parties in interest to review such documents in their entirety. Copies of the Motion, the Bid Procedures Order, and the Bid Procedures, and all other documents filed with the Court may be obtained on the website of the Debtors’ notice agent, Stretto, website: https://cases.stretto.com/MTPC.

IF A 365 CONTRACT COUNTERPARTY FAILS TO FILE WITH THE BANKRUPTCY COURT AND SERVE ON THE OBJECTION RECIPIENTS A TIMELY CURE OBJECTION, THE 365 CONTRACT COUNTERPARTY SHALL BE FOREVER BARRED FROM ASSERTING ANY OBJECTION WITH REGARD TO THE AMOUNT TO CURE ANY DEFAULT UNDER THE APPLICABLE 365 CONTRACT. THE CURE AMOUNTS SET FORTH ON SCHEDULE 1 HERETO SHALL BE CONTROLLING AND WILL BE THE ONLY AMOUNT NECESSARY TO CURE OUTSTANDING DEFAULTS UNDER THE APPLICABLE 365 CONTRACT UNDER BANKRUPTCY CODE SECTION 365(b), NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE 365 CONTRACT, OR ANY OTHER DOCUMENT, AND THE APPLICABLE 365 CONTRACT COUNTERPARTY SHALL BE FOREVER BARRED FROM ASSERTING ANY ADDITIONAL CURE OR OTHER AMOUNTS WITH RESPECT TO SUCH 365 CONTRACT AGAINST THE DEBTORS, ANY SUCCESSFUL BIDDER, OR THE PROPERTY OF ANY OF THEM.

Dated: August ___, 2021 Respectfully submitted,



Tyler N. Lane (Tenn. Bar No. 033401) Gabriela Smith (admitted pro hac vice) 511 Union Street, Suite 2700 Nashville, Tennessee 37219 Tel: (615) 244-6380 Fax: (615) 244-6804 [email protected] [email protected] [email protected]

-and-


5





SCHEDULE 1

365 Contracts


1

EXHIBIT 4

Notice of Desired 365 Contracts


2


NASHVILLE DIVISION


) ) ) ) ) ) )



NOTICE OF DESIRED 365 CONTRACTS THAT MAY BE

ASSUMED AND ASSIGNED IN CONNECTION WITH THE SALE TRANSACTION

PLEASE TAKE NOTICE that on August 13, 2021, the above-captioned Debtors, by and through their undersigned counsel filed Debtors’ Expedited Motion for Entry of Orders (I)(A) Approving Bid Procedures for Sale of Substantially All of the Debtors’ Assets, (B) Scheduling Auction for and Hearing to Approve Sale of Substantially All of the Debtors’ Assets, (C) Approving Form and Manner of Notice of Sale, Auction, and Sale Hearing, (D) Approving Assumption and Assignment Procedures, and (E) Granting Related Relief and (II) (A) Approving Sale of Substantially All of the Debtors’ Assets, (B) Authorizing Assumption and Assignment of Executory Contracts and Unexpired Leases, and (C) Granting Related Relief [Dkt. No. 647] (the “Motion”).2

PLEASE TAKE FURTHER NOTICE that under the Motion, the Debtors seek authority to, among other things, assume and assign certain executory contracts and unexpired leases (the “365 Contracts”) under section 365 of the Bankruptcy Code.

PLEASE TAKE FURTHER NOTICE that on August 27, 2021, the United States Bankruptcy Court for the Middle District of Tennessee (the “Court”) entered its Order (A) Approving Bid Procedures for Sale of Substantially All of the Debtors’ Assets, (B) Scheduling Auction for and Hearing to Approve Sale of Substantially All of the Debtors’ Assets, (C) Approving Form and Manner of Notice of Sale, Auction, and Sale Hearing, (D) Approving Assumption and

1 The jointly administered respective case numbers in these chapter 11 cases include: MTPC, LLC (“MTPC”), Case Number 3:20-bk-05438; The Proton Therapy Center, LLC (“PCPTK”), Case Number 3:20-bk-05439; PCPT Hamlin, LLC (“PCPT Hamlin,” and collectively with PCPTK and MTPC, the “Debtors”), Case Number 3:20-bk-05440. The Debtor’s service address is: 1400 Dowell Springs Boulevard, Suite 350, Knoxville, Tennessee 37909-2447. 2 Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms as set forth in the Motion.


3

Assignment Procedures, and (E) Granting Related Relief [Dkt. No. ___] (the “Bid Procedures Order”).

PLEASE TAKE FURTHER NOTICE that on ______________, 2021, Debtors filed the Initial Assumption and Assignment Notice [Dkt. No. ______]. The Initial Assumption and Assignment Notice provided procedures that 365 Contract Counterparties were required to follow regarding any objections to the Debtors’ proposed Cure Amounts set forth in Schedule 1 to the Initial Assumption and Assignment Notice as stated as owed under each 365 Contract should their contracts be assumed and assigned. This notice (the “Notice of Desired 365 Contracts”) is in addition to the Initial Assumption and Assignment Notice.

PLEASE TAKE FURTHER NOTICE that you are receiving this Notice of Desired 365 Contracts because you may be a Counterparty to a 365 Contract of the Debtors that potentially could be assumed and assigned to a Successful Bidder (“Desired 365 Contract”) in connection with the sale of the Debtors’ assets (the “Sale Transaction”). Each of the Desired 365 Contracts and the Debtors’ calculation of the Cure Amounts with respect thereto are set forth in Schedule 1 hereto. The inclusion of any Desired 365 Contract on Schedule 1 does not constitute an admission that a particular Desired 365 Contract is an executory contract or unexpired lease within the meaning of the Bankruptcy Code or require or guarantee that such Desired 365 Contract ultimately will be assumed and assigned. The assumption and assignment of a Desired 365 Contract is subject to Bankruptcy Court approval. All rights of the Debtors with respect thereto are reserved. Any time prior to the Adequate Assurance Objection Deadline, the Debtors reserve the right, and are authorized but not directed, to: (a) add previously omitted 365 Contracts as contracts to be assumed and assigned to a Successful Bidder in accordance with the definitive agreement for the Sale Transaction; (b) remove a Desired 365 Contract from the Desired 365 Contract List that a Successful Bidder proposes be assumed and assigned to it in connection with the Sale Transaction; or (c) modify the previously stated Cure Amount associated with any Desired 365 Contract.

PLEASE TAKE FURTHER NOTICE that any party seeking to object to the assumption and assignment of a Desired 365 Contract, the Cure Amount (solely to the extent such objection is not subject to the Cure Objection Deadline in the Initial Assumption and Assignment Notice) and/or the ability of Successful Bidder(s) to provide adequate assurance of future performance (an “Adequate Assurance Objection”) must: (i) be in writing, (ii) comply with the applicable provisions of the Bankruptcy Rules and Local Rules, (iii) state with particularity the legal and factual basis for the objection and the specific grounds therefor, and (iv) be filed with the Bankruptcy Court, via ECF, on or prior to October 5, 2021 (the “Adequate Assurance Objection Deadline”).

PLEASE TAKE FURTHER NOTICE that the hearing with respect to any Adequate Assurance Objection may be held (i) at the Sale Hearing or (ii) if such Adequate Assurance Objections are unable to be resolved at the Sale Hearing, a further hearing at 11:00 a.m. (prevailing Central Time) on October 12, 2021 (the “Adequate Assurance Hearing”) will be held solely to consider the adequate assurance objections.

PLEASE TAKE FURTHER NOTICE that this Notice of Desired 365 Contracts is subject to the full terms and conditions of the Motion, Bid Procedures Order, and Bid Procedures, which shall control in the event of any conflict. The Debtors encourage parties in interest to review


4

such documents in their entirety. Copies of the Motion, the APA, the Bid Procedures Order, and the Bid Procedures, and all other documents filed with the Court may be obtained on the website of the Debtors’ notice agent, Stretto, website: https://cases.stretto.com/MTPC.

IF NO CONTRACT ASSIGNMENT OBJECTION IS TIMELY RECEIVED WITH RESPECT TO ASSUMPTION AND ASSIGNMENT OF A DESIRED 365 CONTRACT: (I) THE COUNTERPARTY TO SUCH DESIRED 365 CONTRACT SHALL BE DEEMED TO HAVE CONSENTED TO THE ASSUMPTION BY THE DEBTORS AND ASSIGNMENT TO SUCCESSFUL BIDDER OF THE DESIRED 365 CONTRACT, AND BE FOREVER BARRED FROM ASSERTING ANY OBJECTION WITH REGARD TO SUCH ASSUMPTION AND ASSIGNMENT (INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO THE CURE AMOUNT AND ADEQUATE ASSURANCE OF FUTURE PERFORMANCE BY THE SUCCESSFUL BIDDER); (II) ANY AND ALL DEFAULTS UNDER THE DESIRED 365 CONTRACT AND ANY AND ALL PECUNIARY LOSSES RELATED THERETO SHALL BE DEEMED CURED AND COMPENSATED PURSUANT TO BANKRUPTCY CODE SECTION 365(B)(1)(A) AND (B) UPON PAYMENT OF THE CURE AMOUNT SET FORTH IN THE NOTICE OF DESIRED 365 CONTRACTS FOR SUCH DESIRED 365 CONTRACT; AND (III) THE CURE AMOUNT SET FORTH IN THE NOTICE OF DESIRED 365 CONTRACTS FOR SUCH DESIRED 365 CONTRACT SHALL BE CONTROLLING, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SUCH DESIRED 365 CONTRACT, OR ANY OTHER RELATED DOCUMENT, AND THE COUNTERPARTY SHALL BE DEEMED TO HAVE CONSENTED TO THE CURE AMOUNT AND SHALL BE FOREVER BARRED FROM ASSERTING ANY OTHER CLAIMS RELATED TO SUCH DESIRED 365 CONTRACT AGAINST THE DEBTORS AND THEIR ESTATES OR THE SUCCESSFUL BIDDER, OR THE PROPERTY OF ANY OF THEM, THAT EXISTED PRIOR TO THE ENTRY OF THE ORDER RESOLVING THE CONTRACT OBJECTIONS AND THE ORDER APPROVING THE SALE.

Dated: ___________ ___, 2021 Respectfully submitted,


/s/ David E. Lemke

David E. Lemke (Tenn. Bar No. 013586) Tyler N. Layne (Tenn. Bar No. 033401) Gabriela Smith (admitted pro hac vice) 511 Union Street, Suite 2700 Nashville, Tennessee 37219 Tel: (615) 244-6380 Fax: (615) 244-6804 [email protected] Tyler N. [email protected] [email protected]

-and-


5





SCHEDULE 1

Desired 365 Contract


EXHIBIT 5

Post-Auction Notice



NASHVILLE DIVISION


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NOTICE OF SUCCESSFUL BID AND BACKUP BID

PLEASE TAKE NOTICE that, pursuant to the Expedited Order (A) Approving Bid Procedures for Sale of Substantially All of the Debtors’ Assets, (B) Scheduling Auction for and Hearing to Approve Sale of Substantially All of the Debtors’ Assets, (C) Approving Form and Manner of Notice of Sale, Auction, and Sale Hearing, (D) Approving Assumption and Assignment Procedures, and (E) Granting Related Relief [Dkt. No. __] (the “Bid Procedures Order”) the United States Bankruptcy Court for the Middle District of Tennessee approved, among other things, the implementation of the Bid Procedures attached to the Bid Procedures Order as Exhibit 1 in connection with the disposition of the Assets.2

PLEASE TAKE FURTHER NOTICE that, pursuant to the Bid Procedures Order, the deadline for submitting a Qualified Bid for the Assets was September 23, 2021 at 5:00 p.m. (prevailing Central time) (the “Qualified Bid Deadline”) and in the event that (i) the Debtors timely received one or more Qualified Bids or (ii) Stalking Horse Bidder(s) were selected and the Debtors received a Qualified Bid that the Debtors in their business judgment, in consultation with the Consultation Parties, determined to be the Baseline Bid, the Debtors would conduct the Auction to be held on September 28, 2021 at 9:00 a.m. (prevailing Central Time).

PLEASE TAKE FURTHER NOTICE that on September 28, 2021 at 9:00 a.m. (prevailing Central Time), the Debtors conducted the Auction in accordance with the Bid Procedures and certain rules distributed to Auction attendees prior to and at the Auction. At the Auction, the Debtors determined that the highest and/or best offer was submitted by ___________________ (the “Successful Bidder” and the Successful Bidder’s winning bid, the 1 The jointly administered respective case numbers in these chapter 11 cases include: MTPC, LLC (“MTPC”), Case Number 3:20-bk-05438; The Proton Therapy Center, LLC (“PCPTK”), Case Number 3:20-bk-05439; PCPT Hamlin, LLC (“PCPT Hamlin,” and collectively with PCPTK and MTPC, the “Debtors”), Case Number 3:20-bk-05440. The Debtor’s service address is: 1400 Dowell Springs Boulevard, Suite 350, Knoxville, Tennessee 37909-2447. 2 Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms as set forth in the Bid Procedures Order.


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“Successful Bid”) and the second highest and/or best offer was submitted by ____________________ (the “Backup Bidder,” and the Backup Bidder’s bid, the “Backup Bid”). Exhibit A attached hereto is a copy of the final, fully-executed asset purchase agreement (the “APA,” and the transaction contemplated thereby the “Sale Transaction”) between the Debtors and the Successful Bidder, containing the terms of the Successful Bid.

PLEASE TAKE FURTHER NOTICE that, as contemplated by the Bid Procedures Order, the Debtors will seek final approval of the Sale Transaction to the Successful Bidder pursuant to the APA, during the Sale Hearing on October 6, 2021 at 1:00 p.m. (prevailing Central time) before the United States Bankruptcy Court for the Middle District of Tennessee, 701 Broadway, Nashville, Tennessee 37203. The Successful Bidder(s) shall appear at the Sale Hearing and be prepared to testify in support of the Successful Bid(s) and the Successful Bidder(s)’ ability to close in a timely manner, including with respect to demonstrating adequate assurance of future performance that may be required in connection with the assumption and assignment of any Desired 365 Contracts. The Sale Hearing may be adjourned or rescheduled as ordered by the Bankruptcy Court, or by the Debtors in consultation with the Consultation Parties, but without further notice to creditors and parties in interest other than by announcement by Debtors of the adjourned date at the Sale Hearing. The Debtors’ presentation to the Bankruptcy Court for approval of a Successful Bid does not constitute the Debtors’ acceptance of the Successful Bid. The Debtors shall be deemed to have accepted a Successful Bid only when the Successful Bid has been approved by order of the Court.

PLEASE TAKE FURTHER NOTICE that if the Sale Transaction is not consummated with the Successful Bidder pursuant to the Successful Bid, the Debtors may designate the Backup Bidder as the new Successful Bidder and such Backup Bidder’s Backup Bid as the new Successful Bid, and the Debtors, after consultation with the Consultation Parties, will be authorized to consummate the Sale Transaction with the Backup Bidder without further order of the Court.

PLEASE TAKE FURTHER NOTICE that the deadline to object to the approval of the Sale Transaction is October 1, 2021, and any objection must comply with the Bid Procedures Order.

PLEASE TAKE FURTHER NOTICE that copies of the Motion, the Bid Procedures Order, the Bid Procedures, the APA, and all other documents filed with the Court may be obtained on the website of the Debtors’ notice agent, Stretto, website: https://cases.stretto.com/MTPC.


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Dated: ______________ ___, 2021 Respectfully submitted,



Tyler N. Layne (Tenn. Bar No. 033401) Gabriela Smith (admitted pro hac vice) 511 Union Street, Suite 2700 Nashville, Tennessee 37219 Tel: (615) 244-6380 Fax: (615) 244-6804 [email protected] [email protected] [email protected] -and-


/s/ Marcus A. Helt Marcus A. Helt (admitted pro hac vice) Jack G. Haake (admitted pro hac vice) 2501 North Harwood Street, Suite 1900 Dallas, Texas 75201 Tel: (214) 210-2821 Fax: (972) 528-5765 [email protected] [email protected] Counsel for the Debtors and Debtors in Possession

This Order has been electronically signed. The Judge's signature and Court's seal appear at the top of the first page. United States Bankruptcy Court.


Date post:	05-Dec-2021
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