Case No. 301-12036 Jointly AdministeredUnited States Bankruptcy Court, M.D. Tennessee, Nashville Division
September 17, 2002
Randal S. Mashburn, Baker, Donelson, Bearman, and Caldwell, Nashville, TN, for CNL APF PARTNERS, LP.
Charles K. Grant, Dinsmore Shohl LLP, Nashville, Tenn, and Kim Martin Lewis, Tim J. Robinson, Dinsmore Shohl LLP, Cincinnati, OH for debtor.
R. Glen Ayers, San Antonio, TX, for HPRI-WACO CENTERS, LP.
AGREED ORDER AUTHORIZING REJECTION OF A CERTAIN unexpired NON-RESIDENTIAL REAL ESTATE LEASE PURSUANT TO 11 U.S.C. § 365(a) (5501 Bosque Road, Waco, Texas)
KEITH LUNDIN, United States Bankruptcy Judge.
Upon this Agreed Order of Phoenix Restaurant Group, Inc. (“PRG”) and its jointly-administered direct and indirect subsidiaries, debtors and debtors-in-possession in the above-captioned jointly-administered chapter 11 cases (collectively, the “Debtors”) and HPRI-Waco Centers, LP (“HPRI”) and CNL APF Partners, LP, as successor in interest to CNL American Properties Fund, Inc., with respect to the hereinafter defined Leases (“CNL”) for entry of an order pursuant to 11 U.S.C. § 365 (a) approving at it authorizing the rejection of a certain unexpired non-residential real estate lease and a certain Tri-Party Agreement executed in connection therewith, it is
ORDERED, ADJUDGED AND DECREED THAT:
1. The Debtors are authorized to reject the Lease Agreement (“Lease”) dated September 30, 1997 between CNL American Properties Fund, Inc., as Landlord, and PRG as successor to DenAmerica Corp., as Tenant, with respect to the property located at 5501 Bosque Road, Waco, Texas (“Property”), and the Tri-Party Agreement executed by Stanley Spigel, DenAmerica Corp, and CNL American Properties Fund, Inc. dated as of September, 1997 (the “Tri-Party Agreement”) in connection therewith. Debtors are also authorized to reject that Lease dated July 18, 1991, by and between Debtor’s predessor in interest, Prufrock Restaurants, and Staley Spigel, predecessor in interest to HPRI (the “Prufrock Lease”), to the extent the Prufrock Lease has not been fully and completely assigned or transferred to CNL. Such rejections shall be effective as of the date of receipt by CNL of a payment made by HPRI in the amount of $70,000.00, plus return by HPRI of any checks that CNL has sent to HPRI in connection with the Property (the “Effedtive Date”). In the event that such payment and return is not received by CNL within twenty (20) days after the date of this Order, the Effective Date shall not occur, the rejection of the Lease, the Prufrock Lease, and the Tri-Party Agreement authorized by this Order shall not be effective and the Debtors and the Debtor and CNL shall retain their rights to seek an assumption and assignment of the Lease, the Prufrock Lease, and the Tri-Party Agreement pursuant to 11 U.S.C. § 365 and the Designation Rights Letter Agreement approved by this Court pursuant to the Agreed Order (i) Authorizing and Approving the Sale of Assets Outside the Ordinary Course of Business, Free and Clear of Liens and Other Claims; (ii) Authorizing the Assumption and Assignment of Certain Nonresidential Real Property Leases and Executory Contracts Pursuant to Such Sale; (iii) Authorizing and Approving the Settlement of Controversy with CNL APF Partners, LP and Affiliates; (iv) Rejecting Certain Executory Contracts and Unexpired Nonredidential Real Property Leases; and (v) Granting Certain Related Relief entered on March 22, 2002 (doc. no. 700).
2. HPRI shall have sixty (60) calendar days from the date of entry of this Order to file proofs of’ claim for damages, if any, attributable to the Debtor’ rejection of the Lease, the Prufrock Lease, and the Tri-Party Agreement. Any such proofs of claim not timely filed shall be forever barred. Debtor agrees that this compromise and settlement does not satisfy any unsecured, non-priority, pre-petition claim existing as of the date prior to the date of the petition or generated, as of the date of the petition by the rejection of the leasehold agreements, all to the extent that such claims are timely filed pursuant to this agreed order HPRI agrees that Debtors’ execution of this Agreed Order shall not be deemed to constitute an admission as to the allowability of any claim or claims filed by HPRI on account of damages attributable to the rejection of the Lease, the Prufrock Lease or the Tri-Party Agreement, if any, and the Debtors expressly reserve any and all objections to the extent, validity and allowability of any such claims.