Case 14-11848-MFW Doc 212 Filed 09/15/14 Page 1 of 3 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: Chapter 11 Phoenix Payment Systems, Inc., Case No. 14-11848 (MFW Debtor. Re: Docket Nos. 11, 95 & 202 Obj. Deadline: Sept. 24, 2014 at 4:00 p.m. (EDT AMENDED 1 SECOND SUPPLEMENTAL NOTICE OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES WHICH MAY BE ASSUMED AND ASSIGNED, PURSUANT TO SECTION 365 OF THE BANKRUPTCY CODE, IN CONNECTION WITH THE SALE OF SUBSTANTIALLY ALL OF THE DEBTOR S ASSETS AND THE PROPOSED CURE AMOUNTS WITH RESPECT THERETO PLEASE TAKE NOTICE THAT: 1. On August 4, 2014, the above captioned debtor and debtor in possession (the Debtor filed the Debtor s Motion to (A Establish Bidding Procedures Related to the Sale of Substantially All of the Debtor s Assets, Approve Related Bid Protections and Establish Notice Procedures for Determining Cure Amounts, and (B Approve the Sale of Substantially All of the Debtor s Assets and Assume and Assign Certain Executory Contracts and Unexpired Leases [Docket No. 11] (the Motion 2 with the United States Bankruptcy Court for the District of Delaware (the Bankruptcy Court, 824 N. Market Street, 3 rd Floor, Wilmington, Delaware 19801. 2. On August 26, 2014, the Bankruptcy Court entered an order [Docket No. 95] (i establishing bidding and auction procedures in connection with the sale of substantially all of the Debtor s assets (the Purchased Assets ; (ii approving bid protections, including a break-up fee and expense reimbursement, for EPX Acquisition Company, LLC (the Proposed Purchaser, which is an affiliate of North American Bancard, LLC, in accordance with that certain Asset Purchase Agreement, dated July 31, 2014 (the Stalking Horse Agreement, for the purchase of the Purchased Assets; (iii scheduling an auction (the Auction and setting a date and time for a sale hearing (the Sale Hearing for the sale of the Purchased Assets (the 1 This notice amends the Second Supplemental Notice of Executory Contracts and Unexpired Leases Which May Be Assumed and Assigned, Pursuant to Section 365 of the Bankruptcy Code, in Connection with the Sale of Substantially All of the Debtor s Assets and the Proposed Cure Amounts with Respect Thereto [Docket No. 202] (as amended, the Cure Notice, which was filed and served on September 11, 2014 (the Original Second Supplemental Cure Notice, by changing the description of one of the Contracts (as defined below listed on Exhibit 1 to the Original Second Supplemental Cure Notice. Such amendment is denoted in bold on Exhibit 1 hereto. 2 Capitalized terms not otherwise defined herein shall have the meanings given to them in the Motion. For a copy of the Motion, please visit the website of the Debtor s claims and noticing agent, Rust Consulting/Omni Bankruptcy, www.omnimgt.com/epx.
Case 14-11848-MFW Doc 212 Filed 09/15/14 Page 2 of 3 Sale, and approving the form and manner of notice thereof; (iv establishing procedures (the Cure Procedures for the assumption and assignment of contracts ( Contracts and leases ( Leases, including notice of proposed cure amounts (the Cure Amounts ; and (v granting certain related relief. By the Motion, the Debtor further requests that, at the Sale Hearing, subject to the results of the Auction, the Court enter an order (i approving and authorizing the Sale; and (ii authorizing the assumption and assignment of the Contracts and Leases. 3. The Cure Notice identifies (i certain Contracts and Leases which may be assumed by the Debtor and assigned as part of the Sale; and (ii the proposed cure amount (the Cure Amount for each Contract and Lease identified on the Cure Notice. You have been identified as a party to a Contract or Lease that the Debtor may seek to assume and assign as part of the Sale. The Contract or Lease with respect to which you have been identified as a nondebtor counterparty, and the corresponding proposed Cure Amount, if any, has been set forth on Exhibit 1 attached hereto. 4. Subject to the last sentence of paragraph 5 below, objections, if any, to the proposed Cure Amount or the assumption and assignment of any Contract or Lease listed on the Cure Notice must be made in writing, filed with the Bankruptcy Court, 824 N. Market Street, 3rd Floor, Wilmington, Delaware 19801, and served so as to be received by the following parties on or before 4:00 p.m. (prevailing Eastern Time on September 24, 2014 (the Cure Objection Deadline : (i the Debtor s counsel, Richards, Layton & Finger, P.A., One Rodney Square, 920 N. King Street, Wilmington, Delaware 19801 (Attn: Mark D. Collins and Russell C. Silberglied; (ii the Debtor, 1201 N. Market Street, Wilmington, Delaware 19801 (Attn: Michael E. Jacoby; (iii counsel to the Proposed Purchaser, (a Berkowitz, Trager & Trager, LLC, 8 Wright Street, Westport, Connecticut 06880 (Attn: David A. Greenberg and (b Young, Conaway, Stargatt & Taylor, LLP, Rodney Square, 1000 North King Street, Wilmington, Delaware 19801 (Attn: Joseph M. Barry; (iv counsel to the Bancorp Bank ( Bancorp, Foley & Lardner LLP, 90 Park Avenue, New York, NY 10016 (Attn: Douglas E. Spelfogel and Richard J. Bernard; (v proposed counsel to the Creditors Committee, Lowenstein Sandler LLP, 65 Livingston Avenue, Roseland, NJ 07068 (Attn: Sharon L. Levine and Wojciech F. Jung; and (vi the Office of the United States Trustee for the District of Delaware, 844 King Street, Suite 2207, Lockbox 35, Wilmington, Delaware 19801 (Attn: Benjamin A. Hackman (collectively, the Notice Parties. The objection must set forth (i the basis for the objection, (ii the exact amount the party asserts as the Cure Amount, and (iii sufficient documentation to support the Cure Amount alleged. 5. Adequate assurance information for the Proposed Purchaser is available by contacting counsel to the Proposed Purchaser, (i Berkowitz, Trager & Trager, LLC, 8 Wright Street, Westport, Connecticut 06880 (Attn: David A. Greenberg and (ii Young, Conaway, Stargatt & Taylor, LLP, Rodney Square, 1000 North King Street, Wilmington, Delaware 19801 (Attn: Joseph M. Barry. Any non-debtor party to a Contract or Lease listed on Exhibit 1 hereto that wishes to object to the Proposed Purchaser s ability to provide adequate assurance of future performance, must file such objection by the Cure Objection Deadline and serve such objection on the Notice Parties so that such objection is actually received by such parties by such deadline. If the Winning Bidder is not the Proposed Purchaser, any non-debtor party to a Contract or Lease listed on Exhibit 1 hereto that wishes to object to such Winning Bidder s ability to provide adequate assurance of future performance may do so at the Sale Hearing. 2
Case 14-11848-MFW Doc 212 Filed 09/15/14 Page 3 of 3 6. If an objection is timely filed or made, as applicable, by the applicable objection deadline, a hearing with respect to such objection will be held before The Honorable Mary F. Walrath, United States Bankruptcy Judge, at the Bankruptcy Court, 824 N. Market Street, 5th Floor, Courtroom 4, Wilmington, Delaware 19801, at a date and time determined by the Debtor, subject to the Bankruptcy Court s calendar. A hearing regarding the Cure Amount, if any, may be continued at the sole discretion of the Debtor. 7. UNLESS YOU FILE AN OBJECTION TO THE CURE AMOUNT AND/OR THE ASSUMPTION OR ASSIGNMENT OF YOUR CONTRACT OR LEASE IN ACCORDANCE WITH THE INSTRUCTIONS AND DEADLINES SET FORTH HEREIN, YOU SHALL BE (A BARRED FROM OBJECTING TO THE CURE AMOUNT SET FORTH ON EXHIBIT 1, (B ESTOPPED FROM ASSERTING OR CLAIMING ANY CURE AMOUNT AGAINST THE DEBTOR, BANCORP, THE WINNING BIDDER OR ANY OTHER ASSIGNEE OF THE RELEVANT CONTRACT OR LEASE THAT IS GREATER THAN THE CURE AMOUNT SET FORTH ON EXHIBIT 1 AND (C DEEMED TO HAVE CONSENTED TO THE ASSUMPTION AND/OR ASSIGNMENT OF YOUR CONTRACT OR LEASE (SUBJECT TO YOUR ABILITY TO OBJECT TO WHETHER THE WINNING BIDDER (OTHER THAN THE PROPOSED PURCHASER CAN PROVIDE ADEQUATE ASSURANCE OF FUTURE PERFORMANCE. 8. The presence of a Contract or Lease listed on Exhibit 1 attached hereto does not constitute an admission that such contract or lease is an executory contract or unexpired lease or that such contract or lease will be assumed and assigned as part of the Sale. The Debtor reserves all of its rights, claims and causes of action with respect to the Contracts and Leases listed on Exhibit 1 attached hereto. Date: September 15, 2014 Wilmington, Delaware RICHARDS, LAYTON & FINGER, P.A. /s/ Marisa A. Terranova Mark D. Collins (No. 2981 Russell C. Silberglied (No. 3462 Paul N. Heath (No. 3704 Zachary I. Shapiro (No. 5103 920 N. King Street Wilmington, Delaware 19801 Telephone: 302-651-7700 Facsimile: 302-651-7701 Email: collins@rlf.com silberglied@rlf.com heath@rlf.com shapiro@rlf.com Counsel for the Debtor and Debtor in Possession 3
Case 14-11848-MFW Doc 212-1 Filed 09/15/14 Page 1 of 2 EXHIBIT 1 Schedule of Contracts, Leases and Cure Amounts
Case 14-11848-MFW Doc 212-1 Filed 09/15/14 Page 2 of 2 Creditor Address1 Address2 Address3 Address4 Address5 Description Cure Amount ABI Bank ATTN: Mr. Lambert Lewis 2nd Floor Francis Trading (RIOA Building, High Street St. John's Antigua West Indies Processor Agreement $0.00 AOB Bank ATTN: Mr. Lambert Lewis 2nd Floor Francis Trading (RIOA Building, High Street St. John's Antigua West Indies Processor Agreement $0.00 Banco G & T ATTN: Fabio Martinez Via Espana Edifcio Park Oficinas 1 y 2 Panama City Panama Processor Agreement $0.00 Bank of the Bahamas ATTN: Mr. Leonardo Thompson Village Road Shopping Centre, 2nd Floor, PO Box N-7118 Nassau Bahamas Processor Agreement $0.00 Bourne Leisure IT Dept, 1 Park Lane Hemel Hempstead United Kingdom Processor Agreement $0.00 Capital Bank ATTN: Mr. Erasmo Estrella Edificio P.H. Global Plaza Panama City Panama Processor Agreement $0.00 Carey England LTD Manderson House, Commerce Rd. Brentford Middlesex United Kingdom Processor Agreement $0.00 Caribbean Union Bank ATTN: Mr. Lambert Lewis 2nd Floor Francis Trading (RIOA Building, High Street St. John's Antigua West Indies Processor Agreement $0.00 Clarien Bank ATTN: Mrs. Lisa N Fox 25 Reid Street Hamilton, HM n Bermuda Processor Agreement $0.00 CreditCorp ATTN: Mr. Moises Davarro Calle 59 Credicorp Bank Plaza Panama City Panama Processor Agreement $0.00 Heritage Bank ATTN: Mr. Lambert Lewis 2nd Floor Francis Trading (RIOA Building, High Street St. John's Antigua West Indies Processor Agreement $0.00 St Kitts ATTN: Mr. Michael Martin PO Box 343 Central Street Basseterre KN Saint Kitts West Indies Processor Agreement $0.00 STI Processing, Ltd. ATTN: Mr. Lambert Lewis 2nd Floor Francis Trading (RIOA Building, High Street St. John's Antigua West Indies Processor Agreement $0.00 Page 1 of 1