Case No. 01-24795, (Jointly Administered)United States Bankruptcy Court, N.D. Illinois, Eastern Division
June 26, 2002
ORDER GRANTING THE DEBTORS’ MOTION FOR ORDER PURSUANT TO 11 U.S.C. § 365 AND FED. R. BANKR. P. 6006 AUTHORIZING DEBTORS TO ASSUME AND ASSIGN CERTAIN UNEXPIRED REAL PROPERTY LEASES TO CAPREALTY 01-POPLAR BLUFF, L.L.C.
SUSAN PIERSON SONDERBY, Chief Judge
Upon the motion dated June 14, 2002 (the “Motion”), wherein Kmart Corporation (“Kmart”) and certain of its domestic subsidiaries and affiliates, debtors and debtors-in-possession in the above-captioned cases (collectively, the “Debtors”), moved this Court for entry of an order, pursuant to 11 U.S.C. § 365 and Rule 6006 of the Federal Rules of Bankruptcy Procedure, authorizing the Debtors to assume that certain unexpired nonresidential real property lease under which Assignee serves as landlord as set forth on Schedule A attached hereto and those certain unexpired nonresidential real property subleases set forth on Schedule B attached hereto and other related documents and to assign their interests under the lease and related documents to Caprealty 01-Poplar Bluff; L.L.C. (the “Assignee”) and upon any objection; it appearing to the Court that (i) it has jurisdiction over the matters raised in the Motion pursuant to 28 U.S.C. § 157 and 1334; (ii) this is a core proceeding pursuant to 28 U.S.C. § 157(b)(2); (iii) the relief requested in the Motion is in the best interests of the Debtors, their estates and their creditors; (iv) proper and adequate notice of the Motion and the hearing thereon has been given and that no other or further notice is necessary; and (v) upon the record herein after due deliberation thereon, that the relief should be granted as set forth below,
1. The Debtors are authorized to assume that certain unexpired lease of non-residential real property set forth on Schedule A (the “Lease”) and those certain unexpired subleases of non-residential real property set forth on Schedule B (the “Subleases”) along with any and all easements, licenses, nondisturbance agreements and other similar agreements entered into by the Debtors which relate to their use and occupancy of the leased property (the “Property”), and all amendments, licenses, consents and other similar agreements between the Debtors and the landlord relating to the Property (collectively, the “Real Property Leases”). The Debtors’ decision to assume the Real Property Leases, however, remains subject to satisfaction of any and all conditions as set forth in the Assignment Agreement
2. The Debtors are authorized to assign the Real Property Leases pursuant to the terms of that certain Lease and Sublease Assignment and Assumption Agreement, a copy of which is attached to the Motion as Exhibit A (the “Assignment Agreement”).
3. The conditions of section 365(b)(1) of the Bankruptcy Code with respect to the assumption of an unexpired lease or executory contract have been satisfied in connection with the assumption of the Real Property Leases. In particular, the Debtors have provided the subtenant with adequate assurance of future performance under the Subleases pursuant to section 365(b)(1)(C).
4. While the Court does not expressly decide the issue of whether the Property is part of a “shopping center” within the meaning of section 365, all of the so-called “shopping center provisions” of the Bankruptcy Code with respect to the assumption of a shopping center lease have been satisfied in connection with the assumption of the Real Property Leases.
5. The assumption and assignment of the Real Property Leases is effective as of the Assignment Date (as defined in the Assignment Agreement).
6. The cure claims for the Real Property Leases are the amounts set forth in Schedule A and Schedule B.
7. The transactions contemplated herein are entitled to the full protections of section 363(m) of the Bankruptcy Code.
8. As of the Assignment Date, the Debtors shall be released and forever discharged of any and all obligations and claims under the Real Property Leases, without any further action by the Landlord or order of the Court.
9. The Debtors are authorized to deliver possession of the premises subject to the Real Property Leases to Assignee as set forth in the Assignment Agreement,
10. The Debtors are authorized to sell and assign the Real Property Leases to Assignee free and clear of all liens, claims and encumbrances (except as set forth in the Assignment Agreement) pursuant to section 363(f) of the Bankruptcy Code, with all such valid and enforceable liens, claims and encumbrances to attach to the proceeds of the assignment of the Real Property Leases, in the same relative priority as existed with respect to the Real Property Leases.
11. The Debtors and their respective officers, employees and agents, are authorized to perform all of their obligations, take whatever actions necessary, and issue, execute and deliver whatever documents may be necessary or appropriate to implement and effectuate the assumption and assignment of the Real Property Leases.
12. In accordance with section 1146(c) of the Bankruptcy Code, the sale, conveyance and assignment of the Real Property Leases to Assignee is hereby exempt from the imposition and payment of any law imposing a stamp tax, transfer tax or similar tax.
13. Each and every federal state and local government agency or department is hereby directed to accept any and all documents and instruments necessary or appropriate to consummate the assignment of the Real Property Lease, all without imposition and payment of any stamp tax, transfer tax or similar tax, pursuant to section 1146(c) of the Bankruptcy Code. The register or recorder of deeds (or other similar recording agency) is hereby directed to accept and include a certified copy of this Order along with any other appropriate conveyance documents used to record and index the transfer of the Real Property Lease in the appropriate public records.
14. To the extent that this Order is inconsistent with any prior order, the terms of this Order shall govern.
15. Nothing in this Order shall be deemed to extend the time to assume or reject the Real Property Lease under section 365(d)(4) of the Bankruptcy Code.
16. The Court shall retain exclusive jurisdiction to resolve any dispute arising from or relating to the assumption and assignment authorized herein or this Order.
17. Notwithstanding Rule 6006(d) of the Federal Rules of Bankruptcy Procedure, this Order shall take effect immediately upon signature.