Case No. 00-34533, Jointly AdministeredUnited States Bankruptcy Court, E.D. Virginia, Richmond Division
February 6, 2003
Bruce H. Matson, Troy Savenko, Katherine Macaulay Mueller, LeCLAIR RYAN, A Professional Corporation, Richmond, Virginia, for Debtors.
ORDER UNDER 11 U.S.C. § 105(a) AND 365(a) APPROVING MOTION TO REJECT NON-RESIDENTIAL REAL PROPERTY LEASE AND AUTHORIZING A GOING OUT OF BUSINESS SALE (Lynchburg, Virginia)
DOUGLAS O. TICE, JR., Chief United States Bankruptcy Judge
Upon the Motion (the “Motion”) of the above-captioned debtors and debtors-in-possession (collectively, the “Debtors”) for the entry of an order pursuant to sections 105(a) and 365(a) of title 11 of the United States Code and Rule 6006 of the Federal Rules of Bankruptcy Procedure, approving the rejection of the non-residential property lease for the property located at 801 Lakeside Drive in Lynchburg, Virginia (the “Lease”) effective as of the close of business on February 28, 2003, and authorizing a going out of business sale (the “GOB Sale”); and due and sufficient notice of the Motion having been given to the parties identified in the Motion; and it appearing that no other further notice need be given; and it appearing that such notice constitutes due and sufficient notice for purposes of Bankruptcy Rules 6006 and 9014; and it appearing that rejecting the Lease and conducting a going out of business sale is in the best interests of the Debtors, their estates and creditors; and after due deliberation and sufficient cause appearing therefor;
IT IS HEREBY ORDERED that
1. The Motion is granted.
2. Capitalized terms used but not defined herein shall have the meaning ascribed to them in the Motion.
3. The Lease is hereby rejected effective as of the close of business on February 28, 2003.
4. Any proofs of claim for damages arising from the rejection of the Lease must be filed on or before 30 days after the date of entry of this order approving the Motion.
5. Any claims arising from the rejection of the Lease that are not reflected in a proof of claim filed within the deadline established pursuant to the immediately preceding paragraph shall be deemed disallowed, and the holder thereof shall be forever barred from recovering any dividend or distribution thereon.
6. To the extent the Lease is not a true lease, the Debtors expressly reserve the right to re-characterize the Lease should it become appropriate and/or necessary to do so.
7. The Debtors are hereby authorized to conduct the GOB Sale, which shall include a sale of all inventory at the Lynchburg store free and clear of all liens, encumbrances, and interests.
8. No clause in the Lease shall be an impediment to the GOB Sale or the activities connected therewith. To the extent such restrictive clauses may exist in the Lease, the Lessor shall not be permitted to interfere with, or otherwise seek to restrict the Debtors from conducting, the GOB Sale.
9. The Debtors are authorized to conduct the GOB Sale without the necessity of, and the delay associated with, obtaining various state or local licenses or permits, observing state and local waiting periods or time limits, and/or satisfying any additional requirements with respect to advertising or bulk sale restrictions which would ordinarily affect the conduct of liquidation.
10. No other person or entity including, but not limited to, any lessor or federal, state, or local agency, department or governmental authority, shall be allowed to take any action to prevent, interfere with, or otherwise hinder consummation of the GOB Sale, or the advertising or promotion (including through the posting of signs) of the GOB Sale.
11. This Court shall retain jurisdiction over all affected parties with respect to any matters, claims or rights arising from or related to the implementation of this Order.
12. Upon entry, the Clerk shall serve a copy of this Order on those parties on the attached Service List.