CASE NO. 301-12036United States Bankruptcy Court, M.D. Tennessee
September 15, 2003
CHARLES K. GRANT, W. EDWARD RAM AGE, DINSMORE SHOHL LLP, Nashville, TN, KIM MARTIN LEWIS TIM, J. ROBINSON DINSMORE, SHOHL LLP, Cincinnati, Ohio, for Plaintiffs/Debtors
AGREED ORDER (i) AUTHORIZING AND APPROVING THE SETTLEMENT OF CONTROVERSY WITH JACK M. LLOYD; (ii) AUTHORIZING AND APPROVING THE TRANSFER OF ASSETS FREE AND CLEAR OF LIENS AND OTHER CLAIMS; AND (iii) GRANTING CERTAIN RELATED RELIEF
KEITH LUNDIN, Bankruptcy Judge
Upon the motion dated July 30, 2003, the (Motion”) of Phoenix Restaurant Group, Inc. (“PRG”) and its jointly-administered subsidiaries, Debtors and Debtors-in-Possession in the above captioned Chapter 11 cases (collectively, the “Debtors”) for an order (i) authorizing and approving the settlement of controversy with Jack M. Lloyd and (ii) authorizing and approving the settlement of controversy with William J. Howard, the Debtors having filed their Notice and Order (i) Authorizing and Approving the Settlement of Controversy with Jack M. Lloyd and (ii) Authorizing and Approving the Settlement of Controversy with William J. Howard, which included a form of Order (i) Authorizing and Approving the Settlement of Controversy with Jack M. Lloyd and (ii) Authorizing and Approving the Settlement of Controversy with William J. Howard (the “Original Order”) signed by the court on August 7, 2003, and entered on the Docket on August 8, 2003, Jack M. Lloyd having filed his Objection to Form of Order (i) Authorizing and Approving the Settlement of Controversy with Jack M. Lloyd and (ii) Authorizing and Approving the Settlement of Controversy with William J. Howard (the “Objection”); the court having reviewed the Motion and the exhibits thereto, including, but not limited to,
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the Settlement Agreement and Release by and among the Debtors, Jack M. Lloyd, and JCL Holdings, LLC (the “Lloyd Settlement Agreement”, attached hereto as Exhibit A), and the Settlement Agreement and Release by and among the Debtors and William J. Howard (the “Howard Settlement Agreement”); and the court having found that due and I roper notice of the Motion has been provided; and upon the entire record herein; and all objections to the relief requested in the Motion having been withdrawn, resolved by agreement between the parties, or overruled by this court; and the court having concluded that the relief requested in the Motion is in the best interests of the Debtors, their estates, their creditors, and all other parties in interest and represents a reasonable exercise of the Debtors’ business judgment; and upon due deliberation and consideration of the good and sufficient cause appearing therefore,
THIS COURT HEREBY FINDS AND CONCLUDES:
1. There having been no response or objection to the Motion or the Original Order, as they, or either of them, relate to the Howard Settlement Agreement, the Original Order shall remain in full force and effect with regard to the Howard Settlement Agreement, and shall not be amended or supplemented hereby. This Agreed Order amends and restates the Original Order only insofar as it relates to the Lloyd Settlement Agreement, and/or the approval thereof.
2. The Lloyd Settlement Agreement was negotiated in good faith and at arms’ length, and the settlement of the disputed claims, transfer of assets and other terms contemplated by and memorialized in the Lloyd Settlement Agreement represent a reasonable exercise of the Debtors’ business judgment and have been proposed in good faith. The Debtors have a sound business purpose for the settlement of the disputed claims, transfer of assets and other terms as set forth in the Lloyd Settlement Agreement. Adequate and reasonable notice of the settlement of the disputed claims and transfer of a ssets by the Debtors has been provided to all parties in interest, and the consideration to
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be transferred in settlement of the disputed claims and transfer of assets, as set forth in the Lloyd Settlement Agreement, is fair and reasonable.
3. The settlement of the disputed claims and transfer of assets contemplated t y and set forth in the Lloyd Settlement Agreement are in the best interests of the Debtors, their estates, their creditors, and all parties in interest given the uncertain 1 kelihood of success on the merits and the complexity and expense anticipated in 1 tigating these claims.
THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED:
4. The motion to approve the Lloyd Settlement Agreement is granted. The Debtors’ execution, delivery, and performance of the Lloyd Settlement Agreement are E uthorized and approved. The Debtors shall be further authorized to execute and deliver such documents, including, without limitation, the Bill of Sale attached as an exhibit to the Lloyd Settlement Agreement, and to perform their obligations under the Lloyd Settlement Agreement.
5. The Debtors are authorized to transfer and assign the real estate located at 2420 West Lincolnway, Cheyenne, Wyoming 82001, Parcel No. 13195000100010 (the “Property”)., the Automobile (as defined in the Lloyd Settlement Agreement), and the Debtors’ Claims (as defined in the Lloyd Settlement Agreement), in each case free and clear of all liens, claims, and other interests (with the exception of any lien(s)) for real e state taxes due or past due in connection with the Property, which are being assumed by certain designated parties as set forth in the Lloyd Settlement Agreement), in accordance with the terms of the Lloyd Settlement Agreement and this Agreed Order. The transfer and assignment of assets approved herein shall be free and clear of all mortgages, subleases, security interests, conditional sale or other title retention agreements, pledges,
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. . . any way in connection with any acts, failures to act, of the Debtors or the Debtors’ predecessors or affiliates, claims, obligations, demands, guarantees, options, rights, contractual commitments, restrictions, interests, and matters of any kind and nature, whether arising prior to or subsequent to the commencement of these bankruptcy cases End whether imposed by agreement, understanding, law, equity or otherwise, except for the real estate taxes against the Property. All valid liens, claims, or other interests asserted by secured parties shall attach to the net proceeds of the sale, if any, in the same order and priority as they may currently exist against such assets. The recordation of a certified copy of this Agreed Order, including the relevant exhibits attached hereto, in the public land records of the county and state in which the property is located shall constitute conclusive evidence of the release of all liens and claims against such asset (except as provided herein).
6. The transferee of the Property, the Automobile, and/or the Debtors’ Claims shall not be considered a successor entity or a successor to any liability of the Debtors either than with respect to the real estate taxes against the Property, and such transferee(s) shall be conclusively deemed, for all purposes, to have acquired the asset(s) in good faith.
7. The form of release to be granted by Lloyd and JCL under the Lloyd Settlement Agreement is hereby authorized and approved.
8. Pursuant to § 1146(c) of the Bankruptcy Code, the transfer of assets approved in this Agreed Order is in furtherance of a Chapter 11 plan and, therefore, shall be exempt from any and all stamp taxes or similar transfer taxes.
9. The requirements of Rules 6OO4(g) and 6OO6(d) of the Federal Rules of Bankruptcy Procedure are hereby waived, and this Agreed Order shall be effective immediately upon entry.
10. Notice of the Motion shall be deemed adequate and appropriate under the circumstances and in full compliance with applicable provisions of the Bankruptcy Code,
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tie Federal Rules of Bankruptcy Procedure, and the Local Rules of the Middle District of Tennessee.
11. The terms of this Agreed Order and the Lloyd Settlement Agreement shall be binding upon the Debtors, their creditors, parties with any claims against the Debtors and other parties in interest, and any successors of such parties, including any trustee or examiner appointed in this case or in any subsequent or converted case of the Debtors under any chapter of the Bankruptcy Code.
12. This Agreed Order shall be self-executing and shall constitute all approvals and consents required, if any, by the contracting parties, the laws, rules, or regulations of any state or of any governmental department, agency, or other authority with respect to the implementation or consummation of this Agreed Order and the Lloyd Settlement Agreement and all other documents, instruments and acts referenced in or contemplated by this Agreed Order and the Lloyd Settlement Agreement and that may be necessary to implement and consummate transactions contemplated herein and therein.
IT IS SO ORDERED.
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