Opinion
Case No. 04-33192, (Jointly Administered).
July 6, 2004.
Lisa Koch Bryant, FOLEY BRYANT HOLLOWAY, Louisville, Kentucky, COUNSEL FOR EQUILEASE FINANCIAL SERVICES, INC.
Edward M. King, FROST BROWN TODD LLC, Louisville, KY, and James H.M. Sprayregen, P.C., James W. Kapp III, KIRKLAND ELLIS LLP, Chicago, IL, COUNSEL FOR THE DEBTORS.
AGREED ORDER BETWEEN DEBTORS AND EQUILEASE FINANCIAL SERVICES, INC.
WHEREAS, on May 24, 2004, the above-captioned debtors and debtors in possession (the "Debtors") filed the Debtors' Motion for (I) Interim and Final Orders Authorizing (A) the Debtors to Enter into Post-Petition Credit Agreement Pursuant to 11 U.S.C. §§ 105 and 364 and Bankruptcy Rule 4001(c); (B) Use of Cash Collateral Pursuant to 11 U.S.C. § 363; and (C) Granting Adequate Protection to Pre-Petition Secured Parties Pursuant to 11 U.S.C. §§ 361, 363 and 364 and (II) the Scheduling of a Final Hearing Pursuant to Bankruptcy Rule 4001(c) (the "DIP Financing Motion"); and
WHEREAS, on May 24, 2004, the Debtors filed the Motion for Order Under Sections 105(a), 363, 365 and 1146(c) of the Bankruptcy Code (A) Authorizing the Sale(s)s of Certain or All of the Debtors' Assets, Free and Clear of Liens, Claims, Encumbrances and Interests, (B) Approving Asset Purchase Agreements, and (C) Authorizing the Assumption and Assignment of Certain Executory Contracts and Unexpired Leases in Connection with Such Sale(s) (the "Sale Motion"); and
WHEREAS, on May 24, 2004, the Debtors filed the Application of the Debtors for Entry of an Order Pursuant to 11 U.S.C. §§ 327(a) and 328(a) and Federal Rule of Bankruptcy Procedure 2014 Authorizing the Employment and Retention of Hilco Appraisal Services, LLC to Appraise Certain Assets (the "Hilco Application," and together with the DIP Financing Motion and the Sale Motion, the "Motions"); and
WHEREAS, Equilease Financial Services, Inc. ("Equilease") is the holder of a Master Lease Agreement dated February 29, 2000 and various related equipment schedules (collectively, the "Lease") concerning certain equipment leased to the Debtors by Sony Financial Services, LLC (the "Leased Equipment"); and
WHEREAS, on June 14, 2004, Equilease filed objections to the Motions (the "Objections"); and
WHEREAS, the Debtors and Equilease (the "Parties") wish to resolve the Objections;
NOW, THEREFORE, IT IS HEREBY AGREED, ORDERED AND ADJUDGED as follows:
1. The Lease is an unexpired lease that shall be treated as an executory contract in accordance with 11 U.S.C. § 365 (and as a result thereof, Equilease is the owner of the property which is the subject of the Lease and such property is not property of the Debtors' estates or the subject matter of the DIP Financing Motion), and notwithstanding any provision in any Asset Purchase Agreement between the Debtor and any party to the contrary, said unexpired lease shall be assumed, rejected or assigned solely as provided for in accordance with 11 U.S.C. § 365(a) and/or (f) or as otherwise permitted pursuant to any other provision of the Bankruptcy Code, unless and until otherwise mutually agreed to by the Parties at a later date. This Order shall not prejudice (i) the right of Equilease to seek an order of this Court granting adequate protection or (ii) the Debtors ability to object to such relief. This Agreed Order in no manner grants, and shall not be construed to grant, Equilease any adequate protection with respect to the Leased Equipment.
2. A valuation analysis, if any, of the personal property which constitutes the subject matter of the Lease by Hilco Appraisal Services, LLC, shall not be construed as a binding valuation of the same, and Equilease may obtain an independent appraisal for consideration by the Court, unless and until otherwise mutually agreed to by the Parties at a later date.
3. Immediately upon the entry of this Agreed Order, the Objections will be moot and said Objections will be deemed withdrawn.
4. The United States Bankruptcy Court (the "Court") having jurisdiction over the Debtors' chapter 11 cases shall retain jurisdiction (and the parties hereto shall consent to such retention of jurisdiction) to resolve any disputes or controversies arising from or related to this Agreed Order. Any motion or application brought before the Court to resolve a dispute arising from or related to this Agreed Order shall be brought on proper notice and in accordance with relevant Bankruptcy Rules and local rules of the Court.
5. Each of the undersigned counsel represents that he/she is authorized to execute this Agreed Order on behalf of his/her respective client.
6. This Agreed Order may be executed in multiple counterparts, any of which may be transmitted by facsimile, and each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
7. This Agreed Order shall not be modified, altered, amended or vacated without the written consent of all parties hereto.
SO ORDERED.