Case No. 02-40045 (JHS), (Jointly Administered with Case No. 02-40046 (JHS)), [This Pleading Applies To The CRB Case]United States Bankruptcy Court, N.D. Illinois
September 4, 2003
Robert A. Greenfield, STUTMAN, TREISTER GLATT P.C., Los Angeles, California, for Debtors and Debtors in Possession.
Michael II. Goldstein, STUTMAN, TREISTER GLATT P.C., Los Angeles, California, for Debtors and Debtors in Possession.
Nathan A, Schultz, STUTMAN, TREISTER GLATT P.C., Los Angeles, California, for Debtors and Debtors in Possession.
Daniel C. Nester, BRYAN CAVE LLP, St. Louis, MO, for Premcor Refining Group, Inc.
Jennifer A. Merlo, BRYAN CAVE LLP, St. Louis MO, for Premcor Refining Group, Inc.
AGREED ORDER, PURSUANT TO 11 U.S.C. § 105, 363, 365 U.S.D 1146(c) AND FED. R. BANKR. P, 2002, 6004 AND 6006, APPROVING; (A)ASSUMPTION AND ASSIGNMENT OF CERTAIN LEASES AND EXECUTORY CONTRACTS; (B) SALE OF ASSETS; AND [C] TRANSFER OF LIENS TO PROCEEDS (STORE NO. 2102— ASSIGNMENT OF LEASE)
JOHN SQUIRES, Bankruptcy Judge
This matter coining before the Court upon further consideration of the “Emergency Motion For Order Under 11 U.S.C. § 105, 363, 365, And 1146(c) And Fed, R Bankr, P. 2002, 6004 and 6006: (A) Approving Bidding Procedures; (B) Scheduling Sale Hearing; (C) Approving Sale Of Real Estate Assets; (D) Approving The Assumption, Assignment, And Sale Of Debtor’s Interests Under Certain Leases; (E) Approving The Termination Of Certain Leases; and (F) Granting Related Relief” dated May 15, 2003 (lie “Sale Motion”), pursuant to which Clark Retail Enterprises, Inc., debtor and debtor in possession in the above-captioned chapter 11 cases (“CRE”), sought entry of an order approving certain sales of certain fee properties (each, a “Fee Property” and collectively, the Tee Properties”) and certain leased premises which CRE leases from third parties under non-residential real property leases (collectively, the “CRE Leases”), set forth and identified in the respective “Notice of Proposed Sales and Hearings” and any respective “Notice of Revisions” thereto (together, the “Sale Notices”), which Sale Notices have been served in accordance with the order granting the Sale Motion dated June 10, 2003 (the “Auction Procedures Order”).
After considering the matters set forth in the Sale Motion, the Sale Notices, any objections filed by parties in interest, any objections raised by parties at the various sale hearings
Page 2
held before foe Court, the evidence presented, or proffered without objection, and the arguments of parties wishing to be heard at the various sale hearings, the Court makes the following findings, conclusions, and orders:
A. The general findings and orders set forth in the “[Omnibus] Order, Pursuant To II U.S.C. § 105, 363, 365 And 1146(c) And Fed. R, Bankr. P. 2002, 6004 And 6006, Approving: (A) Assumption And Assignment Of Certain Lease And Executory Contracts; (B) Sale Of Assets; And (C) Transfer Of Liens To Proceeds” (the “Omnibus Lease Order”) are incorporated herein by reference. Capitalized terms used herein but not defined herein have the meanings ascribed to them in the Marketing Procedures, the Bidding Procedures (both of which are attached to the Auction Procedures Order), the Purchase and Sale Agreement executed by the Successful Bidder (the “PSA”)[1] , the Auction Procedures Order, the Omnibus Lease Older or the Mortgage Holders’ Settlement Agreements (as defined in the Omnibus Lease Order), as applicable.
B. CRE now seeks confirmation of that certain sale (the “Sale”) of Property (as defined in the PSA), as summarized in Exhibit “A” to this Agreed Sale Order, including the assumption and assignment of the CRE Lease (the “Lease”) and related executory contracts identified in Exhibit “A” to this Agreed Sale Order (together, such executory contracts and the Lease are referred to herein as the “Assumed Contracts”), all in accordance with the PSA executed by the Successful Bidder[2] , the Omnibus Lease Order, and this Agreed Order.
C. CRE has provided notice of the Sate Motion and the Sale pursuant to the individual Sale Notices and in the record hereof, and such notice is appropriate under the particular circumstances, and an adequate opportunity to object or be heard regarding the relief requested in the Sale Motion has been afforded to all interested persons and entities.
Page 3
D. The relief requested in the Sale Motion that the Sale of each Properly be exempt from any stamp, transfer, recording, or similar taxes or fees will be determined according to the “[Omnibus] Interim Order Pursuant To 11 U.S.C §§ 105 And 1146(c) And Fed R. Bankr. P, 2002, 6004 And 6006 Authorizing Establishment Of Escrow And Providing Relief From Payment Of Transfer Taxes And Fees In Relation To: (A) Sale Of Assets; (B) Assumption And Assignment Of Certain Executory Contracts; And (C) Transfer Of Liens To Proceeds” (the “Omnibus 1146(c) Order”). The recitals and ordered paragraphs of the Omnibus 1146(c) Order are incorporated herein by reference.
E. CRE is the successor in interest to The Premcor Refining Group Inc., (“Premcor”) under the Lease, having previously taken an assignment of Premcor’s interests as tenant under the Lease. Premcor remains liable under the Lease, as acknowledged in Premcor’s Form 10-Q filed November 7, 2002 (me “11/7 10-Q”),[3] The assignment of the Lease to the Successful Bidder will not affect Premcor’s liability. The foregoing provides adequate assurance of future performance as required by section 365(f)(2)(B) of the Bankruptcy Code.
F. There is no default under the Lease that has not been cured, either upon entry of this Order or upon subsequent payment from the Cure Payment Escrow Fund (as defined below).
G. Premcor and the Lessor under the Lease have no objection to the Sale, as evidenced by their signatures to this Agreed Order.
Based upon the foregoing findings, the Court concludes that the Sale should be approved as being appropriate and in the best interests of the estate, and, accordingly
IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:
1. All objections are hereby overruled.
Page 4
2. Pursuant to sections 105(a), 363(b) and (f), and 36S(b) and (f) of the Bankruptcy Code, the foregoing Sale of the Property, as is and in its current condition, including the assumption and assignment of the Assumed Contracts at and in conjunction with the closing, is hereby approved. All rights and obligation among the Successful Bidder and CRE with respect to the Sale of Property, are governed by the terms of the PSA, this Agreed Sale Order and the Omnibus Lease Order, The Successful Bidder shall proceed to closing hi accordance with the PSA. The Successful Bidder and CRE shall have no right to revoke or withdraw its Bid except as provided in the PSA.
3. Pursuant to section 365 of the Bankruptcy Code, as of the Closing Date of each Sale, the Assumed Contracts identified in Exhibit “A” hereto are hereby assumed by CRE and assigned to the Successful Bidder.
4. The specific dollar amount of the Cure Payments shall either: (i) be agreed upon by the parties and paid at Closing; or (ii) be escrowed in a segregated interest-bearing account (the “Cure Payment Escrow Fund”) at Closing, pending determination of the proper amount of such Cure Payments by the Court (which amount in no event shall exceed the amount of the Cure Payment Escrow Fund), The amount of the Cure Payment Escrow Fund shall include, but not exceed, $89,3334.50, less any taxes paid at or before the respective Closing, No other Cure Payments shall be required by CRE. The Cure Payments shall satisfy all defaults under the Lease existing at the time of the entry of this Order.
5. Pursuant to section 365(k) of the Bankruptcy Code, upon the assumption and assignment of the Assumed Contracts, CRE shall not have any obligations under the Assumed Contracts from and after the Closing Date.
6. The filing of a certified copy of this Agreed Sale Order shall be sufficient to transfer all Liens and enable the Successful Bidder 1.0 receive title to me Property free and clear of all Liens, except as provided in the PSA.
7. CRE will designate the Next Successful Bidder by notice filed with the Court during die Non-Revocation Period and served on such bidder. In the event of a failure to
Page 5
consummate a sale because of a breach or other failure on the part of the Successful Bidder; (i) the Next Successful Bidder shall be deemed the Successful Bidder without further order of this Court; (ii) the Sale to the Next Successful Bidder is hereby authorized; and (iii) such Next Successful Bidder shall proceed to closing without any defenses or delay, and shall be subject to all obligations of the Successful Bidder.
8. This Agreed Sale Order shall be effective immediately upon its entry, and the 10-day stay provision set forth in Bankruptcy Rules 6004(g) and 6006(d) is hereby waived.
9. This Agreed Sale Order, along with the Omnibus 1146(c) Order and the Omnibus Lease Order shall constitute the “Order” as required by the PSA.
10. When appropriate herein, findings of fact shall be construed as conclusions of law and conclusions of law shall be construed as findings of fact, in accordance with Bankruptcy Rule 7052.
Page 6
[EDITORS’ NOTE: THIS PAGE CONTAINS “SIGNATURE OF ATTORNEYS”]Page 7
EXHIBIT A SUMMARY OF SALE