Opinion
Case Nos. BK-N-03-52300, BK-N-03-52304, BK-N-03-52470, BK-N-03-52474, Jointly Administration.
December 20, 2004
JUDY B. CALTON, ESQ., SARAH HILTZ SEEWER, ESQ., HONIGMAN MILLER SCHWARTZ AND COHN LLP, Detroit, MI, JOAN C. WRIGHT, ESQ., ALLISON, MacKENZIE, RUSSELL, PAVLAKIS, WRIGHT FAGAN, LTD., Carson City, NV, Attorneys for Trustee.
ORDER AUTHORIZING SALE OF PROPERTY IN COLORADO FREE AND CLEAR OF LIENS, CLAIMS, ENCUMBRANCES AND INTERESTS
Upon the Motion for Order Authorizing Sale of Property to CASE INTERNATIONAL COMPANY, INC. ("Case"), Free and Clear of Liens, Claims, Encumbrances and Interests (the "Motion"), filed by C. ALAN BENTLEY, Chapter 11 Trustee of the captioned Debtors (the "Trustee"), a hearing having been held, the Court having considered the Motion, Exhibits, the record in the case, an auction having been held in open court, and any oral argument, and good cause having been shown;
IT IS HEREBY FOUND that:
A. Notice of the Motion was good and sufficient under the particular circumstances and no other or further notices is or shall be required;
B. The Trustee has exercised sound business judgment in deciding to sell the Property, as that term is defined in the Motion;
C. An auction was held in open court on December 13, 2004 and Leo Payne ("Payne") was the successful bidder for $593,500;
D. Payne is not an "insider" of any of the Debtors, as that term is defined by 11 U.S.C. § 101;
E. The Trustee and Payne negotiated the sale of the Property in good faith, without collusion, and at arm's length;
F. The purchase price of $593,500 offered by Payne for the Property ("the Purchase Price") is fair and reasonable;
G. The only entities with security interests in the Property, TEXTRON FINANCIAL CORPORATION ("Textron") and FINOVA CAPITAL CORPORATION ("FINOVA") have consented to the sale of the Property; and
H. The relief requested in the Motion is necessary and appropriate.
IT IS HEREBY ORDERED THAT:
1. The Motion is GRANTED.
2. Pursuant to 11 U.S.C. § 363(b), the Trustee is hereby authorized to sell the Property to Payne for $593,500.
3. Pursuant to 11 U.S.C. § 363(f), upon the closing of the Sale, the Property shall be transferred to Payne free and clear of all mortgages, security interests, conditional sale or other title retention agreements, pledges, liens, judgments, demands, encumbrances, easements, restrictions, rights of first refusal or charges of any kind or nature, if any, including, but not limited to, the liens of Textron and FINOVA, any restriction on the use, transfer, or other exercise of any attributes of ownership (collectively, "Interests"), and all debts arising in any way in connection with any acts, or failures to act, of the Debtors or the Debtors' predecessors or affiliates, claims (as that term is defined in the Code), obligations, demands, rights, contractual commitments, restrictions, interests and matters of any kind and nature, whether arising prior to or subsequent to the commencement of these cases, and whether imposed by agreement, understanding, law, equity or otherwise (collectively, the "Claims"), with all such Interests and Claims to attach to the proceeds of the Sale of the Property in the order of their priority, with the same validity, force and effect which they now have as against the Property, subject to any claims and defenses the Debtors may possess with respect thereto.
4. Payne is a good-faith purchaser entitled to the protection of 11 U.S.C. § 363(m) in the event that this Order is revised or modified on appeal.
5. The Purchase Price of the Property is fair and reasonable and may not be avoided under 11 U.S.C. § 363(n).
6. Immediately following the closing of the sale of the Property to Case, FINOVA shall be paid $472,699.12 for the release of its lien rights in the water rights portion of the Property (the "Water Rights"), and Textron shall be paid $120,810.88 for release of its lien on the Property. These amounts may be adjusted for outstanding property taxes, current tax prorations and closing costs, if any.
7. FINOVA shall be surcharged $12,000 from the payment in Paragraph 6 with respect to this transaction.
8. FINOVA's rights to credit bid on the Water Rights are reserved.
9. The Trustee and his respective counsel, employees and agents are hereby authorized to execute such documents and perform such acts as are necessary or desirable to carry out the transactions contemplated by the Motion and this Order. Payne and the Trustee have signed an Agreement of Purchase and the Closing shall be in accordance with its terms.
10. The ten (10) day stay under Bankruptcy Rule 6004(g) is hereby waived.