UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

CALLIDUS CAPITAL CORPORATION, 

 Plaintiff, 

v. 

HARVEY INDUSTRIES LLC, et al., 

 Defendants. 

Case No. 2:15-cv-10616-RHC-EAS 

 

Hon. Robert H. Cleland 

Hon. Magistrate Elizabeth A. Stafford 

/ 

ORDER AUTHORIZING SALE OF ASSETS FREE AND 

CLEAR OF ANY AND ALL LIENS, CLAIMS, SECURITY 

INTERESTS, AND OTHER ENCUMBRANCES OF ANY KIND 

OR TYPE, AND GRANTING RELATED RELIEF 

This Court has read and considered Receiver’s Motion to Approve Sale of 

Assets [the “Motion”, Docket No. 37] and any objections thereto. Based upon 

such consideration, the Court finds that entry of this Order is in the best interests of 

the Receivership Estate,1

 its creditors and other parties in interest, and the legal and 

factual bases set forth in the Motion establish just cause for the relief granted 

herein; and it is therefore FOUND AND DETERMINED THAT:

2

 

 

1

 All capitalized terms not otherwise defined herein have the same meaning as set forth in the Motion. 

2

 Findings of fact shall be construed as conclusions of law and conclusions of law shall be construed as findings of 

fact when appropriate. See, Fed.R.Civ.Pro. 52. 

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A. Jurisdiction and Venue: This Court has jurisdiction to consider the 

Motion and the relief requested therein pursuant to 28 U.S.C. § 1332(a)(2). Venue 

is appropriate in this Court pursuant to 28 U.S.C. § 1391(b)(1) and (b)(2). 

B. Statutory Predicates: This Court has authority to approve the Asset 

Purchase Agreement (“Purchase Agreement”) and transactions contemplated 

therein pursuant to 28 U.S.C. §§ 754, 959, 2001, and 2004 and F.R.C.P. 66. 

C. Notice: Proper, timely, adequate and sufficient notice of the Motion 

has been provided. No other or further notice is required. 

D. Opportunity to be Heard: A reasonable opportunity to object or be 

heard regarding the relief requested in the Motion and the transactions pursuant 

thereto has been afforded to all interested persons and entities, including, without 

limitation, the following: (i) each party who has filed an appearance in this matter; 

(ii) all parties who are known to assert any lien, claim, interest or encumbrance in 

or upon any of the Receivership Assets, and (iii) all applicable federal, state, and 

local taxing authorities (collectively, the “Taxing Authorities”). Objections, if any, 

to the Motion have been withdrawn or resolved and, to the extent not withdrawn or 

resolved, are hereby overruled. 

E. Sale Efforts Process: As stated in the Motion, the Receiver has 

thoroughly marketed the Receivership Assets, solicited bids from targeted parties, 

and then conducted an auction sale with adequate opportunity for parties that either 

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expressed an interest in acquiring the Receivership Assets, or who the Receiver 

believed might have an interest in acquiring the Receivership Assets, to submit 

competing bids. Lender, on behalf of itself or its designee, submitted the highest 

and best offer at the Auction. The Receiver and Lender have negotiated the 

Purchase Agreement in a diligent, noncollusive, fair and good faith manner. 

F. Highest and Best Offer: The Purchase Agreement attached to the 

Motion as Exhibit B, including the form and total consideration to be realized 

pursuant to the Purchase Agreement, (i) is the highest and best offer received by 

the Receiver for the Receivership Assets, (ii) is fair and reasonable, and (iii) is in 

the best interests of the Receivership Estate, its creditors and all other parties in 

interest. There is no legal or equitable reason to delay entry into the Purchase 

Agreement, and the transactions contemplated therein, including, without 

limitation, the Sale. 

G. Assignment of Senior Debt and Credit Bid: Lender has duly 

assigned a portion of the Senior Debt and its rights under the Purchase Agreement 

to Purchaser and Purchaser is authorized to submit a credit bid for the Receivership 

Assets in the amount of the Assigned Debt pursuant to the Receivership Order. 

Lender has credited the Company for the amount of the Assigned Debt and has 

consented to the sale of its collateral free and clear of any liens, claims and security 

interests that it holds in the Sale Assets, only. 

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H. Time is of the Essence: Time is of the essence in effectuating the 

Purchase Agreement and proceeding with the Sale contemplated therein. The net 

value of the Receivership Assets continue to decline as the Company continues to 

incur debt to operate within the Receivership. Based on the record, the Sale under 

the Purchase Agreement is authorized to close beginning on the first business day 

following entry of this Order to maximize the value that the Receiver may realize 

from the Sale, and the value that the Receivership Estate may realize from entering 

into the Purchase Agreement. Accordingly, cause exists to permit this Order to be 

a final order immediately upon entry. 

I. Sale Free and Clear: A sale of the Sale Assets other than one free 

and clear of liens, claims, encumbrances, defenses (including, without limitation, 

rights of setoff and recoupment) and interests, including, without limitation, 

security interests of whatever kind or nature, mortgages, conditional sales or title 

retention agreements, pledges, deeds of trust, hypothecations, liens, encumbrances, 

assignments, preferences, debts, easements, charges, suits, licenses, options, rightsof-recovery, judgments, orders and decrees of any court or foreign or domestic 

governmental entity, taxes (including foreign, state and local taxes), licenses, 

covenants, restrictions, indentures, instruments, leases, options, off-sets, claims for 

reimbursement, contribution, indemnity or exoneration, successor, product, 

environmental, tax, labor, ERISA, CERCLA, alter ego and other liabilities, causes 

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of action, contract rights and claims, to the fullest extent of the law, in each case, 

of any kind or nature, known or unknown, secured or unsecured, choate or 

inchoate, filed or unfiled, scheduled or unscheduled, perfected or unperfected, 

liquidated or unliquidated, noticed or unnoticed, recorded or unrecorded, 

contingent or non-contingent, material or non-material, statutory or non-statutory, 

matured or unmatured, legal or equitable (collectively, “Encumbrances”) and 

without the protections of this Order would hinder the Receiver’s ability to obtain 

the consideration provided for in the Purchase Agreement, and, would thus impact 

materially and adversely the value that the Receivership Estate would be able to 

obtain for the sale of the Receivership Assets. But for the protections afforded to 

the Purchaser under this Order, the Purchaser would not have offered to pay the 

consideration contemplated in the Purchase Agreement. In addition, each entity 

with an Encumbrance upon the Sale Assets, (i) if senior in priority to Lender shall 

be satisfied by Lender in full prior to the transfer of the Sale Assets or Purchaser 

shall take the Sale Asset subject to such senior lien, (ii) has consented to the Sale 

or is deemed to have consented to the Sale, or (iii) is junior in right and title to 

Lender and Purchaser. Those holders of Encumbrances who did not object, or who 

withdrew their objections, to the Motion are deemed to have consented. Therefore, 

approval of the Purchase Agreement and the consummation of the Sale free and 

clear of Encumbrances is appropriate pursuant to 28 U.S.C. §§ 2001 and 2004, the 

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Receivership Order and equity and is in the best interests of the Receivership 

Estate, creditors and other parties in interest. 

J. Arms-length Sale: The consideration to be paid by the Purchaser 

under the Purchase Agreement constitutes reasonably equivalent value and fair and 

adequate consideration for the Assets. The terms and conditions set forth in the 

Purchase Agreement are fair and reasonable under these circumstances and were 

not entered into for the purpose of, nor do they have the effect of, hindering, 

delaying or defrauding the Receivership Estate or its creditors under any applicable 

laws. 

K. Good Faith: The Lender and Receiver and their respective equity 

holders, officers, directors, employees, agents and representatives actively 

participated in the bidding process and acted in good faith. The Purchase 

Agreement was negotiated and entered into based upon arm’s length bargaining, 

without collusion or fraud, and in good faith. The Purchaser’s prospective 

performance and crediting of amounts owing under the Purchase Agreement will 

be in good faith and for valid business purposes and uses. 

L. Receiver Authority: Pursuant to the Receivership Order and this 

Order, the Receiver (i) has full power and authority to execute, deliver and perform 

the obligations under the Purchase Agreement and all other transactions 

contemplated thereby, and entry into the Purchase Agreement hereby approved and 

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authorized, and (ii) has full power and authority necessary to consummate the 

transactions contemplated by the Purchase Agreement pursuant to this Order. No 

consents or approvals, other than those expressly provided for herein or in the 

Purchase Agreement, are required for the Receiver to consummate such 

transactions. 

M. No Successor Liability: No sale, transfer or other disposition of the 

Sale Assets pursuant to the Purchase Agreement or entry into the Purchase 

Agreement will subject the Lender, the Purchaser or Receiver to any liability for 

claims, obligations or Encumbrances asserted against the Company or the 

Company’s interests in the Sale Assets by reason of such transfer under any laws, 

including, without limitation, any bulk-transfer laws or any theory of successor or 

transferee liability, antitrust, environmental, product line, de facto merger or 

substantial continuity or similar theories. The Purchaser is not a successor to the 

Company or the Receivership Estate. 

NOW, THEREFORE, IT IS HEREBY ORDERED THAT: 

A. Motion Granted, Objections Overruled 

1. The relief requested in the Motion is granted as set forth herein. 

2. Any remaining objections to the Motion or the relief requested therein 

that have not been withdrawn, waived, or settled, and all reservations of rights 

included in such objections are overruled in all respects and denied. 

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B. Purchase Agreement Approved and Authorized 

3. The execution of the Purchase Agreement and all further 

documentation required thereby, including Bills of Sale and a Covenant Deed, and 

the sale of the Sale Assets to the Purchaser are authorized, approved and 

confirmed. The Receiver is hereby authorized and empowered to enter into and 

perform under the Purchase Agreement and consummate the sale of the Sale 

Assets without further order of the Court. The failure to include specifically any 

particular provision of the Purchase Agreement in this Order shall not diminish or 

impair the effectiveness of such provisions, it being the intent of the Court that the 

Purchase Agreement and all of its provisions, payments and transactions, and 

ancillary documents referenced therein, be authorized and approved in their 

entirety. 

4. As Receiver, the Receiver is specifically authorized to act on behalf of 

the Company in connection with the Sale and no other consents or approvals are 

necessary or required for the Receiver to carry out the Sale, and to effectuate the 

Purchase Agreement and each of the transactions and related actions contemplated 

or set forth therein, including any allocation of the Purchaser Price. 

C. Order Binding 

5. This Order shall be binding upon and shall govern the acts of all 

entities, including, without limitation, all filing agents, filing officers, title agents, 

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title companies, recorders of mortgages, recorders of deeds, registrars of deeds, 

administrative agencies, governmental departments, secretaries of state, federal, 

state and local officials, and all other persons and entities who may be required by 

operation of law, the duties of their office, or contract, to accept, file, register or 

otherwise record or release any documents or instruments, or who may be required 

to report or insure any title or state of title in or to the Sale Assets. 

6. This Order and the terms and provisions of the Purchase Agreement 

shall be binding on all of the Company’s creditors (whether known or unknown), 

the Company, the Purchaser, and their respective affiliates, successors and assigns, 

and any affected third parties including, but not limited to, all persons asserting an 

interest in the Receivership Assets. The provisions of this Order and the terms and 

provisions of the Purchase Agreement, and any actions taken pursuant hereto or 

thereto shall survive the entry of any order for relief under the United States 

Bankruptcy Code. 

E. Sale Assets are Conveyed Free and Clear of Encumbrances. 

7. The Receiver is authorized to sell the Receivership Assets and any 

related property free and clear of any and all Encumbrances except as to Priority 

Liens consented to by Lender and Purchaser, which such Priority Liens shall 

continue in the applicable Sale Asset in the same priority as existed immediately 

prior to entry of this Order. Upon consummation of the Sale, the Sale Assets shall 

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be conveyed to the Purchaser free and clear of all Encumbrances other than those 

Priority Liens consented to by Lender and Purchaser with such Priority Liens 

continuing in the Sale Assets in the same priority as currently exists. All Priority 

Liens not consented to by Lender and Purchaser shall be satisfied in full prior to 

the transfer of any Sale Assets to Purchaser. 

8. In connection with its Credit Bid, Lender shall credit the Company’s 

debt obligations to Lender in the total amount of the Purchase Price. All 

Encumbrances in Receivership Assets that are not part of the Sale Assets 

(collectively, the “Excluded Assets”), including the liens and security interests of 

Lender, shall remain in the Excluded Assets in the same priority as currently exists. 

9. If any person or entity that has filed financing statements, mortgages, 

construction or mechanic’s liens, lis pendens or other documents or agreement 

evidencing liens on or interests in the Sale Assets shall not have delivered to the 

Company or Receiver, in proper form for filing and executed by the appropriate 

parties, termination statements, instruments of satisfaction, or releases of any 

Encumbrances which the person or entity has with respect to the Sale Assets, each 

such person or entity is hereby directed to deliver all such statements, instruments 

and releases and the Purchaser is hereby authorized to execute and file such 

statements, instruments, releases and other documents on behalf of the person or 

entity asserting the same, and the Purchaser is also authorized to file a copy of this 

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Order which, upon filing, shall be conclusive evidence of the release and 

termination of any such Encumbrances. Each and every federal, state and local 

governmental unit is hereby directed to accept any and all documents and 

instruments necessary or appropriate to give effect to the Sale and related 

transactions. 

10. All entities that are presently in possession of some or all of the Sale 

Assets or other property in which the Company holds an interest that are or may be 

subject to the Purchase Agreement hereby are directed to surrender possession of 

such Sale Assets or other property to the Purchaser. 

E. No Successor Liability 

11. The Lender and Purchaser shall not be liable for any claims against 

the Company, the Receiver or the Receivership Estate, and the Company, Receiver 

and Receivership Estate shall not be liable for any claims against Purchaser or the 

Lender, in each case, other than as expressly provided for in the Purchase 

Agreement. Neither the Purchaser nor Lender shall have any successor liability 

whatsoever with respect to any Encumbrances or claims of any nature that may 

exist against the Receiver, Company or Receivership Estate, including, without 

limitation, neither Lender nor Purchaser shall be, or be deemed to be: (i) a 

successor in interest or within the meaning of any law, including any revenue, 

successor liability, pension, labor, ERISA, bulk-transfer, products liability, tax or 

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environmental law, rule or regulation, or any theory of successor or transferee 

liability, antitrust, environmental, product line, de facto merger or substantial 

continuity or similar theories; or (ii) a joint employer, co-employer or successor 

employer with the Receiver, Company or Receivership Estate, and shall have no 

obligation to pay the Receiver, Company or Receivership Estate’s wages, bonuses, 

severance pay, vacation pay, WARN act claims (if any), benefits or any other 

payments to employees of the Receiver, Company or Receivership Estate, 

including pursuant to any collective bargaining agreement, employee pension plan, 

or otherwise, except as expressly set forth in the Purchase Agreement. 

G. No Warranties 

12. Except as explicitly set forth in the Purchase Agreement and/or this 

Order, the Sale Assets are being sold to Purchaser and are assigned, conveyed and 

transferred to Purchaser without any express or implied representations or 

warranties of any kind whatsoever, AS IS, WHERE IS, WITH ALL FAULTS, and 

WITHOUT RECOURSE. 

H. General Provisions 

13. Nothing contained in any subsequent order of this Court in these 

proceedings shall alter, conflict with, or derogate from, the provisions of the 

Purchase Agreement or the terms of this Order. 

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14. The Purchase Agreement and related documents may be modified, 

amended or supplemented by the parties thereto in accordance with the terms 

thereof without further order of this Court. 

15. This Court shall retain exclusive jurisdiction with regard to all issues 

or disputes relating to this Order or the Purchase Agreement, including, but not 

limited to, protecting the Receiver, Company or Receivership Estate, Lender 

and/or the Purchaser against any assertions of Encumbrances. This Court shall 

hear the request of such parties or persons with respect to any such disputes on an 

expedited basis, as may be appropriate under the circumstances. 

16. This Order shall be exempt from compliance with the requirements of 

28 U.S.C. §§ 2001(a) and (b) and 2004, which are expressly waived, consistent 

with the terms of the Receivership Order. 

17. There being no reason for delay, and time being of the essence, this 

Order shall be effective and enforceable immediately upon entry and its provisions 

shall be self-executing. In the absence of any person or entity obtaining a stay 

pending appeal, the Company, Receiver and the Purchaser are free to perform 

under the Purchase Agreement at any time, subject to the terms of the Purchase 

Agreement. 

18. To the extent that anything contained in this Order explicitly conflicts 

with a provision in the Purchase Agreement, this Order shall govern and control. 

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19. Unless and until the receivership has been terminated by order of the 

Court, the Receiver and parties shall remain subject to the terms of the 

Receivership Order. 

20. Case No. 13–14749, Chrysler Group LLC v. Harvey Industries LLC 

and Case No. 14–10484, Callidus Capital Corp. v. Chrysler Group LLC, both 

pending in the United States District Court for the Eastern District of Michigan 

before the Honorable Robert H. Cleland (the “Chrysler Cases”) are proceeding as 

if no Stay exists provided that should FCA US LLC (“FCA US”) obtain a net 

affirmative recovery against Harvey Industries LLC, then FCA US is stayed from 

collecting such net affirmative recovery from the Receivership Assets. With the 

exception of that limitation, nothing in this Order shall affect FCA ’s rights in the 

Chrysler Cases including, but not limited to, rights of set-off, recoupment and the 

return of tooling, if any. 

21. Further, nothing in this Order shall affect or be deemed a waiver of 

Performance Assembly Solutions, LLC’s (“PAS”) right to assert any offsets, 

recoupments or defenses against or with respect to any accounts receivable or other 

monies owed by PAS to the Company, the Receiver or the Purchaser. If PAS were 

to obtain a net affirmative recovery against Harvey Industries LLC, then PAS is 

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stayed from collecting such net affirmative recovery from the Receivership Assets. 

 S/Robert H. Cleland 

 ROBERT H. CLELAND 

 UNITED STATES DISTRICT JUDGE 

Dated: August 18, 2015 

I hereby certify that a copy of the foregoing document was mailed to counsel of record 

and/or pro se parties on this date, August 18, 2015, by electronic and/or ordinary mail. 

 S/Lisa Wagner 

 Case Manager and Deputy Clerk 

 (313) 234-5522 

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