Opinion
Case No. 01-61119-DHA, Chapter 11
April 23, 2002
ORDER
This matter is before the Court again, this time on the Motion of Herricks Fore Plan, Inc. for an Order (1) To Amend or Make Additional Findings Pursuant to Bankruptcy Rule 7052; (2) To Alter or Amend the Memorandum Opinion and Order Entered March 13, 2002 Pursuant to Bankruptcy Rule 9023; and/or (3) For Relief Pursuant to Bankruptcy Rule 9024. The debtor has responded in opposition to the granting of Herricks motion in the alternative.
After due consideration and reflection upon the Memorandum Opinion and Order of March 13, 2002, we have concluded that position of Herricks that the issue of the breach of its lease with the debtor was not dealt with by the Court is without merit. Without restating all of the conclusions previously reached in this matter, we find that Herricks waived its claim that the debtor's DIP financing primed its landlord's lien and that such waiver includes its claim that the lease was breached by the uncontested granting of the DIP financing lien. We also note that the claim of Herricks that the lease was breached is now mooted by three factors: (1) the DIP facility has been paid in full and the related lien on the Herricks lease has been released; (2) the Herricks lease has been excluded from standing as collateral for the debtor's exit financing; and (3) the debtor assumed the Herricks lease and must cure all prepetition and post-petition defaults in order to properly do so.
For the foregoing reasons and those stated in the Court's Memorandum Opinion and Order of March 13, 2002, Herricks motion, in the alternative, is DENIED.
IT IS SO ORDERED.