Opinion
Case No. 399-02649, Jointly Administered
January 15, 2004
Paul G. Jennings, BASS, BERRY SIMS PLC, Nashville, TN, for Reorganized Debtors
John William Butler, Jr., George N. Panagakis, Chicago, Illinois for Reorganized Debtors
Edward M Ross, ROSENBERG CALICA BIRNEY LLP, New York, for Patchogue Associates
Samuel K. Crocker, Nashville, Tennessee, for KLA/SM, L.L.C.
Daniel J. McGuire, WINSTON STRAWN LLP, Chicago, IL, for KLA/SM, L.L.C.
AGREED ORDER RESOLVING THE CLAIM OF PATCHOGUE ASSOCIATES REGARDING STORE NO. 290 IN PATCHOGUE, NEW YORK
This matter having come before the Court on the Proof of Claim (Claim No. ___) and the Administrative Claim (Claim No. ___) filed by Patchogue Associates ("Patchogue") (collectively, the "Claim"), regarding the property known as Reorganized Debtors' Store No. 290, located at 499 West Sunrise Highway, Patchogue, New York, leased to Service Merchandise Company, Inc. (together with its 31 affiliates, the "Reorganized Debtors") pursuant to that certain Lease dated November 1, 1985 between Service Merchandise, as tenant, and Patchogue Associates, as the landlord (as amended, the "Lease") whereby Patchogue asserted its Claim consisting of certain sums due under the Lease for prepetition amounts payable under the Lease; the Reorganized Debtors having previously filed a Certificate of No Objection dated May 21, 2002 (Docket No. 6782) with respect to the assumption and assignment of the Lease to Best Buy Stores, L.P. pursuant to the Lease Notice dated May 2, 2002; and the Reorganized Debtors, KLA/SM LLC (the "Designation Rights Purchaser") and Patchogue having agreed, as signified by signatures of counsel below, to a resolution of the Claim on the terms set forth in this Agreed Order; and the Court being satisfied that the relief herein is appropriate under the circumstance; and the Court being otherwise sufficiently advised, IT IS HEREBY ORDERED THAT:
1. The Designation Rights Purchaser shall pay Patchogue $75,000 within two business days of entry of this Agreed Order.
2. Patchogue's Claim shall be deemed satisfied in full and withdrawn subject to and upon receipt of $75,000 from the Designation Rights Purchaser.
3. Patchogue, or any subsequent landlord, shall be forever barred from asserting a further cure claim with regard to pre-petition sums allegedly due and owing to Patchogue against the Designation Rights Purchaser, Best Buy, and the Reorganized Debtors subject to and upon receipt of $75,000 from the Designation Rights Purchaser.
4. Subject to and upon Patchogue's receipt of $75,000 from the Designation Rights Purchaser, Patchogue, the Reorganized Debtors and the Designation Rights Purchaser, mutually release, waive and forever discharge each other, and their respective successors, heirs, assigns, infants, agents and attorneys, from any and all claims, demands, damages, losses, liability, rights or causes of action in law or equity, known or unknown, asserted or unasserted, which either may have as against each other arising out of or concerning the Lease with respect to the time period prior to the assignment to and assumption of the Lease by Best Buy, except for claims for contribution or indemnity arising out of any claims asserted by third parties. By their respective signatures below, each of the undersigned counsel represents that he has authority to bind the party on behalf of whom he is signing to the provisions of this Agreed Order, including without limitation the release contained in this paragraph.
5. This Court shall retain jurisdiction over any dispute concerning this Agreed Order or any other claims of Patchogue that are cognizable in this Court.