Document/Exhibit Description Pages Size
1: 8-K Current Report 3 12K
2: EX-2 Plan of Acquisition, Reorganization, Arrangement, 63 174K
Liquidation or Succession
3: EX-2 Plan of Acquisition, Reorganization, Arrangement, 10 30K
Liquidation or Succession
EX-2 — Plan of Acquisition, Reorganization, Arrangement, Liquidation or Succession
Exhibit Table of Contents
L A W Y E R S
RYAN SWANSON & CLEVELAND
1201 Third Avenue, Suite 3400
Seattle, Washington 98101-3034
ORDER (A) AUTHORIZING ERNST HOME CENTER, INC. TO CONDUCT GOING
OUT OF BUSINESS SALES, (B) AUTHORIZING THE RETENTION OF AOS
INVESTMENTS, LLC AS LIQUIDATION AND REAL ESTATE CONSULTANT, (C)
APPROVING PROCEDURE TO REJECT LEASES AND (D) GRANTING OTHER
RELIEF - 1
Judge: The Honorable Karen A. Overstreet
Chapter: 11
Hearing Location: Seattle, Room 427
Hearing Date: November 22, 1996
Hearing Time: 11:00 a.m.
Response Date: November 21, 1996
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
In re:
ERNST HOME CENTER, INC. and EDC, INC.,
Debtors.
Taxpayer Identification Nos. 91-0213470, 911542092
Debtors' Address:
1511 Sixth Avenue
Seattle, WA 98101
BANKRUPTCY NO. 96-10129
BANKRUPTCY NO. 96-10135
(jointly administered)
ORDER (A) AUTHORIZING ERNST HOME CENTER, INC. TO CONDUCT GOING
OUT OF BUSINESS SALES, (B) AUTHORIZING THE RETENTION OF AOS
INVESTMENTS, LLC AS LIQUIDATION AND REAL ESTATE CONSULTANT, (C)
APPROVING PROCEDURE TO REJECT LEASES AND (D) GRANTING OTHER
RELIEF
Upon the motion (the "Motion") of Ernst Home Center, Inc.
("Ernst"), one of the above-captioned debtors and debtors in
possession (the "Debtors"), for an order pursuant to sections
105(a), 327(a), 363(b) and 365(a) of title 11 of the United
States Code (the "Bankruptcy Code"), (a) authorizing Ernst Home
Center,
Inc. to conduct going out of business sales in accordance with
that certain Consulting Agreement dated November 18, 1996 (the
"Consulting Agreement"), by and between Ernst and AOS (as defined
therein), (b) authorizing the retention of AOS as real estate and
liquidation consultant, (c) approving procedure to reject the
Leases (as defined in the Motion) and (d) granting other relief;
and the Court having reviewed the Motion and having conducted a
hearing on the Motion (the "Hearing") at which time Ernst and all
parties in interest were given an opportunity to be heard; and it
appearing that the United States Trustee, counsel for the
committee of unsecured creditors (the "Committee"), Ernst's
secured lenders, AOS, the lessors of the GOB Stores (as defined
in the Motion), the unofficial landlords committee, the state
attorney general (or other appropriate state official) in those
jurisdictions where the GOB Sales will be conducted and all
parties having requested notices in these Chapter 11 cases having
been given notice of the Motion in accordance with an order of
this Court dated November 18, 1996; and upon the record of the
Hearing; and the Court finding that: (a) the Court has
jurisdiction over this matter pursuant to 28 U.S.C. SECTION 157
and 1334 and this is a core proceeding pursuant to 28 U.S.C. Section
157(b)(2); (b) notice of the Motion and the opportunity for a
hearing thereon were adequate and appropriate and no other
notice need be given; (c) the legal and factual bases set forth
in the Motion constitute just cause for the relief requested
therein; and (d) all objections to the Motion were withdrawn or
overruled; and the court having made other findings of fact and
conclusions of law on the record which are incorporate by this
refer after due deliberation and sufficient cause appearing
therefor, it is
ORDERED, ADJUDGED AND DECREED that the Motion be, and it hereby
is, granted as hereinafter set forth; and it is further
ORDERED, ADJUDGED AND DECREED that, pursuant to section 363(b)(1)
of the Bankruptcy Code, Ernst be, and it hereby is, authorized
and empowered to conduct going out of business sales, bankruptcy
sales, bulk sales and similar sales (collectively, the "GOB
Sales")all sales are limited to assets owned by Ernst unless the
owner consents to Ernst's sale of the owners' property at the
retail store locations set forth on Exhibit A hereto (the "GOB
Stores") on the terms and conditions set forth in the Motion, the
Consulting Agreement and the Guidelines (as defined in the
Motion) provided, however, the GOB sales shall end by February
15, 1997 unless this Court extends the time upon motion of Ernst
and notice to the State and other appropriate parties; and it is
further
ORDERED, ADJUDGED AND DECREED that Ernst be, and hereby is,
authorized, in the exercise of its business judgment, to close
one or more of the GOB Stores in the event that such closing
represents the most prudent disposition of a particular location,
and thereafter, to transfer inventory, equipment and other
remaining assets to a GOB Sale location for sale or other
disposition; and it is further
ORDERED, ADJUDGED AND DECREED that Ernst be, and hereby is,
authorized to transfer inventory, equipment and other remaining
assets from the Distribution Center (as defined in the Motion) to
the GOB Stores for sale or other disposition; and it is further
ORDERED, ADJUDGED AND DECREED that pursuant to section 363(f) of
the Bankruptcy Code, all inventory owned by Ernst and to be sold
by Ernst at the GOB Sales shall be sold free and clear of any and
all liens, claims and encumbrances, if any, with such liens,
claims and encumbrances to attach to the proceeds of sale; and it
is further
ORDERED, ADJUDGED AND DECREED that pursuant to section 327 of the
Bankruptcy Code, Ernst is authorized to retain AOS as its
liquidation and real estate consultant, in accordance with the
Consulting Agreement, the terms and conditions of which are
hereby approved; and it is further
ORDERED, ADJUDGED AND DECREED that Ernst is hereby authorized to
pay AOS' fees and expenses pursuant to the terms of the
Consulting Agreement without the necessity of filing fee
applications with the Court, and AOS is hereby excused from
compliance with the Court's administrative order concerning fee
applications; and it is further
ORDERED, ADJUDGED AND DECREED that all parties and persons of
every nature and description, including but not limited to
landlords, utility companies, governmental agencies, sheriffs,
marshals or other public officers, creditors and all those acting
for or on their behalf, be, and they hereby are, jointly and
severally restrained and enjoined from (a) in any way interfering
with or otherwise impeding the conduct of the GOB Sales or other
liquidation or auction sales at the GOB Stores and the
maintenance of the inventory, equipment, furniture and fixtures
thereat, (b) instituting any action or proceeding in any court or
other administrative body having as its objective the obtaining
of an order or judgment which might in any way directly or
indirectly obstruct or otherwise interfere with or adversely
affect the conduct of GOB Sales or other liquidation or auction
sales at the GOB Stores and (c) taking any action that interferes
with or impedes Ernst's payment to AOS of all sums due to AOS in
accordance with the terms of the Consulting Agreement provided,
however, a party in interest (1) may bring any egregious
violation of a lease provision or Washington state law before
this Court for determination and (2) shall take no action with
respect to the alleged egragious vilaiton until a determination
is made by this Court.; and it is further
ORDERED, ADJUDGED AND DECREED that the GOB Sales or similar
liquidation or auction sales at the GOB Stores in the State of
Washington shall be conducted in compliance with the Washington
Statute (as defined in the Motion), except that Ernst's
compliance with the Waived Provisions (as defined in the Motion)
of the
Washington Statute be, and hereby is, waived or modified as set
forth in the Motion; and it is further
ORDERED, ADJUDGED AND DECREED that except as provided in the
foregoing paragraph, the GOB Sales or similar liquidation or
auction sales at the GOB Stores shall be conducted by Ernst
without the necessity of compliance with any federal, state or
local statute or ordinance or licensing requirement affecting GOB
Sales or similar liquidation or auction sales thereat; and it is
further
ORDERED, ADJUDGED AND DECREED that the GOB Sales or similar
liquidation or auction sales at the GOB Stores shall be conducted
by Ernst notwithstanding any restrictive provision of any Lease
affecting GOB Sales or similar liquidation or auction sales
thereat; and it is further
ORDERED, ADJUDGED AND DECREED that Ernst, AOS and their
respective officers, employees and agents be, and they hereby
are, authorized to execute such documents and to do such acts as
are necessary or desirable to carry out the GOB Sales authorized
herein; and it is further
ORDERED, ADJUDGED AND DECREED that Ernst, AOS and their
respective officers, employees and agents shall not be required
to (a) obtain the approval of any federal, state or local
government agency, department or other authority, any landlord or
any other third
parties to conduct the GOB Sales as authorized herein, or (b)
execute or file releases, termination statements, assignments,
consents or other instruments to effect, consummate and implement
the provisions hereof; and it is further
ORDERED, ADJUDGED AND DECREED that Ernst be, and hereby is,
authorized to reject any Lease (as defined in the Motion),
pursuant to section 365(a) of the Bankruptcy Code, which
rejection shall become effective ten calendar days after written
notice of such rejection, in the form annexed to the Motion as
Exhibit D, is delivered by hand or overnight courier to the
applicable landlord and its consel of record I this case, if any,
and Dillon Jackson on behalf of the unofficial committee ;
provided, however, that, in the event notice is given to such
landlord by overnight courier, such rejection shall become
effective eleven calendar days from the date of such notice; and
it is further
ORDERED, ADJUDGED AND DECREED that the holder of any claim
arising from the rejection by Ernst of any Lease shall file a
proof of claim arising from such rejection on the later of: (a)
December 31, 1996 or (b) within thirty (30) days from the
effective date of such rejection, or be forever barred from
asserting any such claim against Ernst or these estates; and it
is further
ORDERED, ADJUDGED AND DECREED that this Court shall retain
jurisdiction to (a) enforce and implement the terms and
provisions of the Consulting Agreement and each of the documents
and
instruments executed in connection therewith, (b) protect AOS and
Ernst from any interference with the GOB Sales, (c) resolve any
disputes related to the GOB Sales and (d) interpret, implement
and enforce the provisions of the Consulting Agreement and this
Order; and it is further
ORDERED, ADJUDGED AND DECREED that the failure specifically to
include in this Order any particular provisions of the Consulting
Agreement shall not diminish or impair the efficacy of such
provisions, it being the intent of the Court that the Consulting
Agreement shall be authorized and approved in its entirety; and
it is further
ORDERED, ADJUDGED AND DECREED that as allowed by Bankruptcy Rule
8005, notwithstanding Bankruptcy Rule 7062, this Order shall be
effective and enforceable immediately upon entry.
DONE IN OPEN COURT this 22nd day of November, 1996.
/s/ Karen A. Overstreet
The Honorable Karen A. Overstreet
UNITED STATES BANKRUPTCY JUDGE
Presented by:
JONES, DAY, REAVIS AND POGUE
599 Lexington Avenue
New York, New York 10022
Marc S. Kirschner
Lawrence P. Gottesman
(212) 326-3939
Attorneys for Debtors
- and -
RYAN, SWANSON & CLEVELAND
By: /s/ Timothy W. Dore
Timothy W. Dore
WSBA No. 17131
Attorneys for Debtors
ERNST HOME CENTERS
WASHINGTON (29)
#201, RENTON (14068 SE PETROVITSKY ROAD)
#203, SEATTLE (4704 25TH AVENUE NE)
#205, SEATTLE (1401 NW LEARY WAY)
#207, BELLEVUE (44 BELLEVUE WAY NE)
#212, SEATTLE (2502 SW TRENTON)
#219, SPOKANE (EAST 2520 29TH AVENUE)
#224, TACOMA (15615 PACIFIC AVENUE)
#225, KIRKLAND (12630A TOTEM LAKE BLVD)
#227, SPOKANE (WEST 2215 WELLESLEY)
#237, ABERDEEN (1109 E. WISHKAH)
#238, WENATCHEE (401 VALLEY MALL PARKWYA)
#240, BELLEVUE (4037 FACTORIA SQUARE MALL SE)
#241, REDMOND (17170 REDMOND WAY)
#246, RENTON (4601 NE SUNSET BOULEVARD)
#250, OLYMPIA (400 COOPER POINT ROAD SW)
#251, RICHLAND (1717 GEORGE WASHINGTON WAY)
#258, KENNEWICK (3017 W KENNEWICK AVENUE)
#266, MILL CREEK (16222 BOTHELL-EVERETT HIGHWAY)
#267, SILVERDALE (2890 NW BUCKLIN HILL ROAD)
#272, GIG HARBOR (4816 POINT FOSDICK DRIVE, NW)
#273, SPOKANE (9960 N NEWPORT HIGHWAY)
#275, WOODINVILLE (14051 NE WOODINVILLE/DUVALL RD)
#279, LYNNWOOD (19310 60TH AVENUE NE BLDG B)
#289, OLYMPIA (3000 PACIFIC AVENUE)
#305, TACOMA, (1015 N. PEARL STREET)
#317, PORT ORCHARD (1700 SE MILE HILL DR BLDG 100)
IDAHO (6)
#202, POCATELLO (800B YELLOSTONE AVENUE)
#235, NAMPA (1611 CALDWELL BOULEVARD)
#253, MOSCOW (2242 W. PULLMAN ROAD)
#261, BOISE (6650 GLENWOOD)
#308, IDAHO FALLS (1545 W. BROADWAY STREET)
MONTANA (2)
#274, MISSOULA (3025 PAXSON STREET)
#306, KALISPELL (1441 MONTANA HIGHWAY 35)
UTAH (8)
#233, LOGAN (1224 N. MAIN)
#263, SALT LAKE CITY (1198 BRICHYARD ROAD)
#283, SPANISH FORK (950 N. MAIN STREET)
#287, MIDVALE (7210 S. UNION PARK AVENUE)
#290, BOUNTIFUL (420 S. 500 W)
#304, WEST VALLEY CITY (3491 W. 3500 S)
#321, AMERICAN FORK (675 S. 500 E)
OREGON (6)
#286, BEND, (2600 NE HIGHWAY 20)
#293, MILWAUKIE (15550 SE MCLOUGHLIN BLVD)
#295, TIGARD (16200 SW PACIFIC HYW, SUITE X)
#312, MCMINNVILLE (2490 N. HIGHWAY 99 W)
#322, ALBANY, (1990 14TH AVENUE SE)
#325, THE DALLES (460 MT. HOOD ST)
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘8-K’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 2/15/97 | | 3 | | | | | None on these Dates |
| | 12/31/96 | | 7 |
| Filed on: | | 12/6/96 |
| For Period End: | | 11/22/96 | | 1 |
| | 11/21/96 | | 1 |
| | 11/18/96 | | 2 |
| List all Filings |
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