Case No. 02-00979-KL3-11, (Jointly Administered)United States Bankruptcy Court, M.D. Tennessee, Nashville Division
June 17, 2002
John M. Gillum, Philip L. Robertson, MANIER HEROD, Nashville, TN, Counsel for National City Leasing Corporation.
Craig V. Gabbert, Jr., Barbara D. Holmes, HARWELL HOWARD HYNE GABBERT MANNER, P.C., Nashville, TN, and Joel M. Walker, Philip J. Uher, BUCHANAN INGERSOLL PROFESSIONAL CORPORATION Pittsburgh, PA, Counsel for debtors.
AGREED ORDER RESOLVING LIMITED OBJECTION OF NATIONAL CITY LEASING CORPORATION TO DEBTORS’ MOTION AND NOTICE TO REJECT CERTAIN EXECUTORY CONTRACTS AND MODIFYING THE AUTOMATIC STAY PURSANT TO 11 U.S.C. § 362
KEITH M. LUNDIN, United States Bankruptcy Judge
THIS AGREED ORDER is entered into and submitted to this Honorable Court in accordance with the following, and with the consent of Pen Coal Corporation and the various other debtors herein (hereinafter “Pen”) and National City Leasing Corporation (hereinafter “NCLC”), as signified by the signatures of counsel below, to resolve NCLC’s objection to Pen’s motion to reject certain executory contracts, including, without limitation, to grant NCLC relief from the stay calculated to allow NCLC to repossess its Drill[1] and otherwise protect its interests following formal rejection of the Lease Agreement in accordance with the terms and conditions set forth herein; and
WHEREAS Pen has filed their Motion and Notice to Reject Certain Executory Contracts Pursuant to 11 U.S.C. § 365(a), F.R.Bankr.P. 6006
and L.B.R. 9013-1 (the “Motion”), seeking, among other things, formal rejection of the Lease Agreement; and
WHEREAS NCLC has timely and properly filed and served its Limited Objection of National City Leasing Corporation to Debtors’ Motion and Notice to Reject Certain Executory Contracts Pursuant to 11 U.S.C. § 365(a), FED. R. BANKR. P. 6006 and LBR 9013-1 (the “Objection”), seeking, among other things, to modify any order entered by this Honorable Court, pursuant to the Motion, to lift or otherwise modify the automatic stay to allow Pen to recover its Drill upon the entry of an order formally rejecting the lease Agreement, allowing administrative rent, and requiring the debtors to comply with the provisions of 11 U.S.C. § 365(d)(10); and
WHEREAS, in consideration of the foregoing, Pen and NCLC have agreed to resolve the Objection in accordance with the terms, conditions, and decrees of this order; and
WHEREAS, cause exists to lift, or otherwise modify, the stay in this instance as Pen seeks to reject the Lease Agreement and thereby relinquish all estate interest in the Lease Agreement and the Drill because Pen has determined that the Drill is not necessary for an effective reorganization; and
WHEREAS, IT APPEARING TO THIS COURT that the parties have agreed and consented to the terms, conditions, and decrees of this order, and that the relief sought by Pen and NCLC is just and in the best interests of all parties in interest, the foregoing hereby adopted as findings of fact and conclusions of law, and premises considered, and for good and sufficient cause shown it is hereby:
ORDERED and DECREED that the Lease Agreement is rejected effective no later than the date of entry of this Order.
ORDERED and DECREED that the automatic stay of 11 U.S.C. § 362(a)(3) is hereby modified and lifted so as to allow NCLC to take possession of the Drill upon entry of this Order; and it is further
ORDERED and DECREED that Pen shall provide the Drill for recovery by NCLC, or any of its agents, and shall cooperate in good faith with NCLC in its recover thereof; and it is further
ORDERED and DECREED that Pen is hereby authorized to do any act reasonably necessary to carry out the provisions and purposes of this order, without further application to, or order of, this Court; and it is further
ORDERED and DECREED that this order shall not, nor may it be construed to, waive, modify, limit, expand, or otherwise affect any rights, claims, and defenses which either Pen or NCLC may have, whether created by contract, in law or in equity, or pursuant to any provision of the Bankruptcy Code, including NCLC’s rights to assert and recover any claim which it may have for administrative rent, to enforce or recover damages for the breach of obligations under the Lease Agreement, or pursuant to any provision of the Bankruptcy Code, nor shall this order be construed as an admission of fact by either Pen or NCLC, as to the validity, allowability, or amount of any claim, application, or defense, or otherwise; and it is further
ORDERED and DECREED that the relief granted herein is in addition to, and not in lieu of, any other remedies or relief that either Pen or NCLC may be entitled to pursue under contract, at law or in equity, or pursuant to any provision of the Bankruptcy Code; and it is further
ORDERED and DECREED that this Court shall retain jurisdiction to hear any matters or disputes arising from or relating to this order.