Opinion
Case No. 99-02649-GP3-11, Jointly Administered
February 14, 2003
Paul G. Jennings, Beth A. Dunning, BASS, BERRY SIMS PLC, Nashville, TN, John Wm. Butler, Jr., George N. Panagakis, SKADDEN, ARPS, SLATE, MEAGHER FLOM, Chicago, IL, Attorneys for Debtors and Debtors-in-Possession.
Upon the lease notice dated July 23, 2002 (the "Lease Notice"), of Service Merchandise Company, Inc. ("Service Merchandise") and 31 of its affiliates (the "Affiliate Debtor"), debtors and debtors-in-possession in the above captioned cases (Service Merchandise and the Affiliate Debtors, collectively, the "Debtors"), pursuant to 11 U.S.C. § 363 and 365(a), and in furtherance of and compliance with the Designation Rights Order (Docket No. 6214), seeking to assign store number 172 in Argyle Village Square, Jacksonville, Florida (the "Property") to the Assignee (defined below) and to sublease to Bed Bath Beyond, Inc. ("Bed Bath") and Michaels Stores, Inc. ("Michaels"), as more fully described in the Lease Notice, and upon the objection dated August 9, 2002 (Docket No. 7199) (the "Objection") filed by Weingarten Nostat, Inc. ("Weingarten" or the "Landlord" to the Lease Notice; and it appearing that the relief requested is in the best interest of the Debtors, their estates, creditors, and other parties in interest and is a proper exercise of the Debtors' business judgment; and all parties in interest having been heard or having had the opportunity to be heard; and it appearing that good and sufficient notice of the Lease Notice and this hearing having been given and that no other or further notice of the Lease Notice and this hearing or of the entry of this Order need be provided; and upon the statements made by counsel for the Landlord, counsel for the Debtors, and other parties in interest in court on July 2, 2002, September 30, 2002 and December 18, 2002 and upon the record of the hearing and all exhibits for such dates; and for the reasons stated in the Court's Memorandum entered on January 27, 2003 (the "Memorandum Decision") (Docket No. 8125); and upon the entire record herein and good and sufficient cause appearing therefor,
capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Lease Notice.
IT IS HEREBY FOUND THAT:
A. On March 16, 2002, this Court entered the Designation Rights Order.
B. Pursuant to the Designation Rights Order, on or about July 23, 2002, at the direction of the Designation Rights Purchaser, the Debtor served the Lease Notice to the landlord setting forth its intention to assume and assign the Lease to these chapter 11 cases. The court shall retain jurisdiction to enforce the terms of this Order.
5. Any conclusions of law contained in the foregoing paragraphs which may be construed as findings of fact, shall be treated as findings of fact as set forth above.