IN RE TOM THUMB FOOD MARKETS, INC. (Bankr.D.Minn. 2004)

DENNIS O'BRIEN, Chief Judge, Bankruptcy

This matter came before the Court on July 14, 2004, pursuant to a Stipulation of Nauni Jo Manty, the Chapter 7 Trustee (the "Trustee") and S and Z, LLC, a Minnesota limited liability company (the "Purchaser of Store 282") with regard to the sale of the Debtor's real property asset known as Store 282, as reflected on the Debtor's Schedule filed March 9, 2004. Based upon the Stipulation,

IT IS HEREBY ORDERED:

1. That Order for Sale Free and Clear of Liens issued by this Court on April 29, 2004, shall be vacated, in part, with regard only to real property referred to as Store 282 and only as regard to Store 282, and this Order for Sale Free and Clear of Liens as to Store 282 shall amend said Order.

2. This Court authorizes the sale of the Debtor's property referred to as Store 282 located at 2951 Central Avenue N.E., Minneapolis, Minnesota, and legally described as Lots 24 to 30, inclusive, Block 13, "Chute Brothers First Addition to the City of Minneapolis", according to the recorded plat thereof, Hennepin County, Minnesota, shall be sold to the Store 282 Purchaser for the stated sale price of $650,000.00.

3. Store 282 shall be sold free and clear of liens.

4. All proceeds ("Gulfstream Proceeds") from the sale of Debtor's property referred to as Store 282 (hereinafter referred to as the "Gulfstream Assets") shall be subject to the first priority lien of Bay View Franchise Mortgage Acceptance Company, Bay View Bank, N.A., Bay View Capital Corporation, Holly Yellen Management, Inc. and Flag Bank (hereinafter collectively refeered to as "Gulfstream"). The Gulfstream Proceeds shall be paid by the Trustee to Gulfstream Financial Services, Inc. ("Gulfstream") for application of its claim, including, to the extent there are sufficient Gulfstream Proceeds, post-petition interest, costs, expenses and reasonable attorney's fees within ten (10) days of closing of the Gulfstream Assets. However, the Trustee shall escrow monies received from the sale of the Gulfstream Assets in the amount of the indebtedness owing Gulfstream for the Polka Dot Dairy Stores 128, 193 and 226 until the Trustee and Gulfstream resolve any disputes or until further Order of this Court. Upon sale of all of the Gulfstream Assets and upon payment in full of all obligations owed to Gulfstream on the Notes relating to the Gulfstream Assets, Gulfstream shall cancel the original Notes relating to the Gulfstream Assets and deliver them to the Trustee. No amounts paid to Gulfstream from the sale of the Gulfstream Assets shall be subject to disgorgement or other claims of the Debtor or the estate and Gulfstream shall have no liability or litigation to return or refund any amounts paid to Gulfstream once such amounts are received by Gulfstream.

5. All persons and entities, including, without limitation, all debt security holders, equity security holders, governmental, tax, and regulatory authorities, lenders, trade and other creditors, holding interests of any kind or nature whatsoever against or in the Debtor or the Property (whether legal or equitable, secured or unsecured, matured or unmeasured, contingent or no contingent, senior or subordinated), arising under or out of, in connection with, or in any way relating to the Debtor, the Property, the operation of the Debtor's business prior to the closing, or the transfer of the Property to the buyers, are forever barred, stopped, and permanently enjoined from asserting against the buyer, its successors or assigns, its property, or the Property, such persons' or entities' claims, causes of action or interests.

6. This Order is and shall be binding upon and shall govern the acts of all entities including, without limitation, all filing agents, filing officers, title agents, title companies, recorders of mortgages, recorders of deeds, administrative agencies, governmental units, secretaries of state, federal, state, and local officials, and all other person and entities who may be required by operation of law, the duties of their office, or contract, to accept, file, register or otherwise record or release any documents or instruments, or who may be required to report or insure any title or state to title in or to the Property. All liens against the Debtor's estate of record as of the date of this Order shall forthwith, upon the occurrence of the closing with respect to the Property, be removed and stricken as against such Property, without further order of the Order or act of any party. Upon closing, the entities listed above in this paragraph are authorized and specifically directed to strike all such recorded Liens against the Property as provided for herein from their records, official or otherwise.

7. Each and every federal, state, and local governmental agency, unit or department is hereby directed to accept this Order as sole and sufficient evidence of the transfer of title of the Property to the buyer, and such agency or department may rely upon this Order in consummating the transactions contemplated by this Order.

8. The Purchaser of Store 282 is not (nor shall it be deemed to be) a successor to the Debtor or its estate by reason of any theory of law or equity or as a result of the consummation of the transaction contemplated in this Order or otherwise. The Purchaser of Store 282 is not (i) assuming any collective bargaining agreement, employee pension, welfare or benefit plan nor (ii) assuming or in any way responsible for any liability or obligation of the Debtor and/or its estate accruing, arising or relating to a period prior to Closing, except as otherwise expressly provided in this Order.

9. All entities, including, but not limited to, the Debtor (and/or their respective successors, including any trustees thereof), and each of their creditors, employees, unions, former employees and shareholders, administrative agencies, governmental units, secretaries of state, federal, state and local officials, maintaining any authority relating to Environmental, Health and Safety laws, and their respective successors or assigns, and all parties to the Property are permanently and forever barred, restrained and enjoined from commencing or continuing in any manner or action or other proceeding against any buyer as alleged successor or otherwise with respect to any Lien.

10. The Court shall retain exclusive jurisdiction to resolve any dispute arising from or relating to this Order, issue any order in furtherance of the transactions, and hear and resolve any issue relating to the buyers' rights under the Property. The Court shall retain jurisdiction, even after the closing of this chapter 7 case, among other things, to

(a) interpret, implement and enforce the terms and provisions of this Order and of each of the agreements executed in connection therewith;

(b) protect the buyers and the Property against any of the Liens, as provided herein, including to enjoin the commencement or continuation of any action seeking to impose successor liability, or bulk sale liability;

(c) enter orders in aid or furtherance of the transactions contemplated in this Order;

(d) compel delivery of the Property to the buyers;

(e) resolve any disputes arising under or related to this Order or the related transactions or to ensure the peaceful use and enjoyment of the Property by the buyers;

(f) adjudicate any and all issues and/or disputes, if any, relating to the buyer's or the Debtor's right, title or interest in, to and under the Property and the proceeds thereof;

(g) re-open the Debtor's chapter 7 case to enforce the provisions of this Order.

11. The transactions contemplated by this Order are undertaken by the Purchaser of Store 282 in good faith (as that term is used in section 363(m) of the Bankruptcy Code), and the buyers shall continue to be in good faith (as that term is used in section 363(m) of the Bankruptcy Code) by proceeding to close the transactions contemplated by this Order. Accordingly, the reversal or modification on appeal of the authorization to consummate the transactions approved hereby shall not affect the validity and enforceability of such transactions, unless such authorization is duly stayed pending such appeal. Each and every entity is enjoined from commencing or continuing an action seeking relief under section 363(m) of the Bankruptcy Code with respect to any buyer.

12. Pursuant to section 363(m) of the Bankruptcy Code, the Debtor, the Trustee and the Purchaser of Store 282, as well as their officers, employees, and agents, are authorized to take any and all actions and/or execute any and all documents as may be necessary or desirable to consummate the transactions contemplated by this Order. Any actions taken by the Debtor and the Purchaser of Store 282 necessary or desirable to consummate such transaction prior to the entry of this Order are hereby ratified.