United States Bankruptcy Appellate Panel

FOR THE EIGHTH CIRCUIT

________

02-6077/02-6078EM

________

In re: *

*

Crystalin, L.L.C., *

*

Debtor. *

*

Crystalin, L.L.C. and *

Citizens National Bank of Greater * Appeal from the United States

St. Louis, * Bankruptcy Court for the

 * Eastern District of Missouri

Appellants, *

*

v. *

*

Selma Properties, Inc., *

*

Appellee. *

________

Submitted: April 23, 2003

Filed: May 27, 2003

________

Before KRESSEL, Chief Judge, DREHER, and FEDERMAN, Bankruptcy Judges.

________

DREHER, Bankruptcy Judge.

This is an appeal from an order of the bankruptcy court denying Debtor’s

motion to assume a real property lease, and from a subsequent order denying the
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motions of Debtor and Citizens National Bank of Greater St. Louis to alter or amend

the judgment. For the reasons stated below we reverse and remand.

FACTS

Debtor, Crystalin, L.L.C (“Debtor”) is a limited liability company formed for

the purpose of purchasing and operating Crystal Highlands Golf Course (“the golf

course”). The golf course is located in Jefferson County, Missouri.

The golf course was built on land originally owned by the Union Pacific

Railway (“Union Pacific”). In the early 1980s, Union Pacific formed Appellee,

Selma Properties Inc. (“Selma”), which took title to the land and built an exclusive

resort and meeting facility on part of the land. The facility was to be used for Union

Pacific business activities. In the late 1980s, Union Pacific decided the facility

needed an adjacent golf course which could be used by guests who visited the facility.

Because Selma could not fully utilize the course, the development of the golf course

was structured through a long-term lease of the real property to a golf course

developer who would be responsible for building and maintaining a public course

which Selma could also use.

On June 1, 1987, Selma entered into a Lease Agreement (“the Lease”) with

Crystal Highlands Golf Club, Inc ("CHGCI"). Pursuant to the Lease, CHGCI was

required to build, operate and maintain an 18-hole public golf course on the leased

property. The term of the Lease expires on May 31, 2027. 

Section 1 of the Lease ("the quality standards") provides, in part, that:

[The] golf course shall be suitable for Championship play and

shall be maintained on a level equivalent to other first rate courses in the

St. Louis, Missouri area.

* * *
1

The testimony at trial indicated there are not and never have been USGA or

PGA guidelines for course construction, maintenance or operation.

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The Facilities shall be constructed, maintained, operated and

renewed in strict conformity with and in accordance with current

guidelines of the USGA and PGA or successor organizations.1

Section 2(a) of the Lease granted Selma free access and use of the golf course

for 20 persons per day, subject to certain exceptions for tournament and league play.

There was no monthly rental payment; instead the lessee was obliged to pay Selma

10% of lessee’s “net income” as that term was defined in the Lease. The parties agree

that the golf course has never had any “net income” that would have triggered an

obligation to pay monetary rent. However, the Lease contained a number of other

covenants, including the lessee’s obligation to insure the property, pay real estate

taxes, and comply with the quality standards. The Lease provided that failure to

comply with any of these obligations would constitute an event of default, provided

such default was not cured within the time period set forth in the Lease.

In Section 14 of the Lease, Selma also granted an option to purchase the leased

property at any time during the term of the Lease at a price established by an appraisal

process set forth in the Lease. The process involved the parties agreeing to an

appraiser, or by each party selecting its own appraiser, with a third to be selected by

the first two, and required that “[the]. . . appraisers . . . be instructed to appraise the

Premises as if vacant and to base the appraisal upon the value of comparable

unimproved property . . .”. The Lease further provided that if the lessee purchased

the property at the appraised price, Selma must transfer title to the lessee by quitclaim

deed; provided, however, that the lessee’s covenants, including the covenant of

continuing operation in accordance with the quality standards and the grant of

Selma’s use rights under Section 2(a), would run with the land until May 31, 2027.

This section further stated that the breach of any of these covenants would entitle

Selma to repurchase the property.
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CHGCI designed and constructed the golf course. The course opened for play

in the fall of 1988. In February 1996, Selma consented to the assignment by CHGCI

of its rights and interest in the Lease to Healthquarters of Crystal Highlands, LLC

(“Healthquarters”). Debtor is an affiliate of Healthquarters. Healthquarters borrowed

the funds to acquire CHGCI’s interest in the Lease from a local bank. Three years

later, on February 26, 1999, Debtor obtained a $4.5 million loan from Citizens

National Bank of Greater St. Louis ("CNB"). The Lease was assigned to Debtor with

Selma's consent. Debtor then granted CNB a security interest in Debtor's leasehold

interest in the golf course, as well as a deed of trust on Incline Village, a second golf

course owned by Healthquarters. The loan proceeds were used to pay off the existing

indebtedness on the golf course and to finance certain improvements to both golf

courses. In addition to a Leasehold Deed of Trust from Debtor to CNB, Debtor,

Selma, and CNB also signed a Landlord’s Waiver and Consent Agreement which

provides, in relevant part, as follows:

2. Mortgage. . . . Borrower [Debtor] and Lender [CNB] upon

the occurrence of an event of default under the Financing Agreements

shall be able to sell, assign, transfer or otherwise convey Borrower’s

interest in the Lease to any third party, with the prior written consent of

Landlord [Selma], which such consent shall not be unreasonably

withheld or delayed, provided that all monetary defaults under the Lease

are either cured or provided for by an approved third party and that the

transferee, purchaser, or assignee assumes the obligations of the

Borrower under the Lease, effective as of the date of the transfer and

attorns to Landlord.

* * *

6. Lender’s Right to Cure and Notice. Landlord hereby

covenants and agrees that it will give written notice to Lender of the

occurrence of any default or event of default by Borrower under the

Lease at the same time Landlord gives such notice to Borrower and

Lender shall have the right, but not the obligation, to cure any such

default within thirty (30) days after Lender’s receipt of notice from

the Landlord; . . . .
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The golf course has never done well. Between 1988 and 2001 revenue

declined steadily, the result of increasing competition in public courses in the area

and a highway improvement project that has hindered access to the course. While

the course was under professional management during the 2002 golf season,

revenue showed some improvement, but the course continued to experience

consistent net losses. In 2001, for example, it lost over $600,000; and by 2001,

the course was burdened with approximately $4.5 million in debt, approximately

$4 million owed to CNB and about $500,000 owed to a second commercial lender. 

Although Debtor sporadically paid down long term debt, finances were so poor

that CNB had to reimburse Selma for its payment of real estate taxes in 2001 and

2002 in the sum of $40,000, and to also pay $20,000 to the professional manager

hired to operate the course in 2002. While the experts for each side differed as to

the amount of deferred maintenance on the course, they both agreed that the golf

course needed some attention. The estimates of costs to improve the course

ranged from $350,000 to $900,000. 

In spite of this poor economic picture, at least two offers to purchase

Debtor's leasehold interest in the golf course had been made. One group of

investors approached Selma in the fall of 2001 and offered to purchase the course

for $1.8 million. In the Spring of 2002, the company hired to manage the golf

course expressed interest in purchasing the golf course for $2.1 million. Neither

expression of interest was pursued because, at least in part, the potential

purchasers needed assurances that the Lease was not in default and Selma would

not provide that assurance.

The relationship between Debtor and Selma was somewhat acrimonious

from the start. On numerous occasions, Selma expressed dissatisfaction with the

conditions on the course and called attention to the quality standards. From time

to time, Debtor did not timely pay insurance premiums or real estate taxes as they

came due. These defaults, however, were always cured and Debtor attempted to
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satisfy Selma's complaints by improving operations and making improvements to

the course. Nonetheless, the matter came to a head when, by letter dated January

17, 2002, Selma gave written notice that events of default had occurred under the

Lease. The specific alleged defaults were: 1) nonpayment of the 2000 and 2001

real estate taxes; 2) unauthorized assignment of the Lease; 3) nonpayment of

rent; 4) failure to provide a certificate of insurance; and 5) inadequate

maintenance and operation of the golf course in violation of the quality standards.

On February 22, 2002, Debtor notified Selma that Debtor was exercising its

option to purchase the property. On the same day, CNB also purported to do so. 

Debtor and CNB subsequently hired an appraiser and notified Selma of the

selection. Selma, however, refused to appoint an appraiser. It took the position

that Debtor was in default under the Lease, as a consequence of which a purchase

was futile because of Selma's right under the Lease to repurchase the property if

Debtor was in default.

On February 22, 2002, Debtor also filed a voluntary petition under Chapter

11 of the United States Bankruptcy Code. Debtor continued in possession of the

course throughout the 2002 golf season and hired a professional manager to

improve conditions and performance at the course. The manager oversaw

operations, improved the condition of the golf course, and attempted to raise

revenues and operate at a profit. Throughout the reorganization process Debtor

contended that its reorganization plan consisted of selling the course, either to

CNB or to a third party, and not continuing operations.

On May 3, 2002, Debtor filed a motion to assume the Lease ("the motion to

assume") pursuant to Section 365 of the Bankruptcy Code. Debtor argued that it

was not in default under the Lease and that, in its business judgment, assumption

was beneficial to the estate. It made this judgment based, in part, on the fact that

the Lease contained a favorable monetary rent provision and an extremely
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favorable purchase option which Debtor had exercised. Selma opposed that

motion. It argued that there were defaults under the Lease which were not capable

of being cured and that Debtor could not provide adequate assurance of cure and

assurance of future performance under the Lease. Before the commencement of a

lengthy evidentiary hearing, Selma acknowledged that there were no defaults

under the Lease other than the alleged failure of the Debtor to meet the quality

standards. The remaining defaults either never existed or were cured within the

allowed time period.

The bankruptcy court announced its decision from the bench on October 8,

2002, and issued its order on October 30, 2002. It held that Debtor was not in

default under the Lease. The bankruptcy court assumed that there were

maintenance and operational lapses at the golf course, but further held that the

condition of the course was no worse than other high quality, championship type

courses in the St. Louis area. The course was “suitable for championship play and

. . . maintained on a level equivalent to other first rate courses in the St. Louis,

Missouri area.” This finding has not been challenged on appeal. 

The bankruptcy court went on, however, to deny Debtor’s motion to assume

because, in the court’s view, assumption was not in Debtor’s best interest. The

bankruptcy court based its rejection of Debtor’s business judgment decision on

essentially three findings: 1) there were not then any pending offers to purchase

or assign the Lease; 2) Debtor did not have sufficient assets to fund needed

repairs, capital improvements and maintenance requirements at the golf course,

and 3) the Lease was not a favorable asset in the bankruptcy sense, nor an

attractive asset to third parties.

Debtor timely moved under Federal Rule of Bankruptcy Procedure 9023,

incorporating Federal Rule of Civil Procedure 59(e), to alter or amend the

judgment, arguing that circumstances had changed. In addition to arguing that the
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bankruptcy court had improperly applied the business judgment test, Debtor urged

that, in the absence of a finding that Debtor was in default under the Lease, Selma

no longer had a right to refuse to move forward with the appraisal process. Debtor

further argued that, at the suggestion of Selma’s counsel, this very issue had been

deferred subject to a further look once the default issue was resolved. Debtor

pointed out that during trial Debtor had urged the court to require Selma to appoint

its appraiser. To this, Selma’s counsel said:

That we ought to find out if this lease is going to be assumed or

rejected. That’s what the debtor asked for in its motion . . . We don’t

think it’s appropriate at this time that we’d ask that this request for

interim relief, at this time at least, be denied until the parties could

brief it or do whatever the debtor wants to do in a subsequent motion,

to have it then properly before the court and give us a chance to

respond . . .

Debtor further pointed out that at trial CNB had made clear its willingness

to fund the cure of any defaults the court found and to purchase or finance the

purchase of the golf course in order to protect the value of its collateral. To make

clear CNB’s affirmance of that position, the Debtor appended to its motion a

written offer dated October 11, 2002, from CNB to finance Debtor’s purchase of

the golf course from Selma at the value determined by the appraisers. This

financing commitment was contingent only on Debtor’s agreement to sell the golf

course and Incline Village to CNB for $4,288,465.43, the amount of CNB’s

secured claim in the case plus $100,000.

On November 22, 2002, the bankruptcy court denied the motion. Both CNB

and Debtor ("Appellants") appeal the October 30 order and the November 22

order.
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DECISION

I. STANDARD OF REVIEW

We review the bankruptcy court’s conclusions of law de novo and its

findings of fact for clear error. Tax 58 v. Froehle (In re Froehle), 286 B.R. 94, 96

(B.A.P. 8th Cir. 2002). “A finding [of fact] is ‘clearly erroneous’ when although

there is evidence to support it, the reviewing court on the entire evidence is left

with the definite and firm conviction that a mistake has been committed.”

Waterman v. Ditto (In re Waterman), 248 B.R. 567, 570 (B.A.P. 8th Cir. 2000)

(citing Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985)). 

In this appeal, the determination of the proper legal standard to be applied to

Debtor’s motion to assume the Lease is a legal conclusion, which we review de

novo. Lubrizol Enters., Inc. v. Richmond Metal Finishers, Inc. (In re Richmond

Metal Finishers, Inc.), 756 F.2d 1043, 1047 (4th Cir. 1985). The bankruptcy

court’s determination that assumption of the lease was not in the best interest of

the estate is a finding of fact reviewed under the clearly erroneous standard. See

Four B. Corp. v. Food Barn Stores, Inc. (In re Food Barn Stores, Inc.), 107 F.3d

558, 562 (8th Cir. 1997). The bankruptcy court’s denial of a motion pursuant to

Rule 59(e) is reviewed for abuse of discretion. Concordia College Corp. v. W.R.

Grace & Co., 999 F.2d 326, 330 (8th Cir. 1993). 

II. THE BUSINESS JUDGMENT TEST

The first issue raised by Appellants is whether the bankruptcy court applied

the proper test in denying Debtor’s motion to assume. We conclude that the

bankruptcy court applied the proper test. Section 365(a) provides that, with

exceptions not applicable here, “the trustee [or debtor-in-possession], subject to

the court’s approval, may assume or reject any executory contract or unexpired
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lease of the debtor.” 11 U.S.C. § 365(a). In deciding whether to approve a debtorin-possession’s motion to assume, reject, or assign an unexpired lease or

executory contract, the bankruptcy court used a business judgment test. See Food

Barn, 107 F.3d at 566 n.16. This test is not an onerous one and does not require

the bankruptcy court to place “itself in the position of the trustee or

debtor-in-possession and determining whether assuming the [lease] would be a

good business decision or a bad one.” Orion Pictures Corp. v. Showtime

Networks, Inc. (In re Orion Pictures Corp.), 4 F.3d 1095, 1099 (2d Cir. 1993),

cert. dism., 511 U.S. 1026 (1994). In the Eighth Circuit, the business judgment

test consists of two parts. Initially, the assumption of a lease must be in the

“exercise of a sound business judgment” showing benefit to the estate. In re

Global Int'l Airways, 35 B.R. 881, 886 (Bankr. W.D. Mo. 1983). It is Debtor’s

burden to prove that lease assumption benefits the estate. Id. at 888. 

As stated in Orion Pictures, in reviewing a trustee's or debtor-inpossession's decision to assume an executory contract, then, a

bankruptcy court sits as an overseer of the wisdom with which the

bankruptcy estate's property is being managed by the trustee or

debtor-in-possession, and not, as it does in other circumstances, as the

arbiter of disputes between creditors and the estate. Although the

court uses a business judgment test in deciding whether to approve a

trustee's motion to assume, reject, or assign an unexpired lease or

executory contract, this entails a determination that the transaction is

in the best interest of the estate. 

In re Tama Beef Packing, Inc., 277 B.R. 407 (Bankr. N.D. Iowa 2002)(citing

Nostas Assocs. v. Costich (In re Klein Sleep Prods., Inc.), 78 F.3d 18, 25 (2d

Cir.1996)("Th[e] decision [to allow a debtor to assume an unexpired lease]

required a judicial finding--up-front--that it was in the best interests of the estate

(and the unsecured creditors) for the debtor to assume the lease . . . ."). "Where

the trustee's request is not manifestly unreasonable or made in bad faith, the court

should normally grant approval 'as long as [the proposed action] appears to
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enhance [the] debtor's estate." Food Barn, 107 F.3d at 566 n.16, (quoting

Richmond Leasing Co. v. Capital Bank, N.A., 762 F. Supp. 1303, 1309 (5th Cir.

1985), (emphasis added)).

If the initial test is met, the bankruptcy court should not interfere with the

trustee or debtor-in-possession’s business judgment “except upon a finding of bad

faith or gross abuse of their ‘business discretion.’” Lubrizol Enters., Inc. v.

Richmond Metal Finishers, Inc., 756 F.2d at 1047. If Debtor cannot show a

benefit to the estate, the bankruptcy court does not need to make a finding of bad

faith or gross abuse of discretion. Food Barn, 107 F.3d at 558 n.16. Although the

bankruptcy court found no material default in the Lease, it is within the discretion

of the bankruptcy court to approve or disapprove assumption of an unexpired lease

and the bankruptcy court may deny a motion to assume an unexpired lease where

Debtor fails to demonstrate a benefit to the estate even if the Lease is not in

default. See, e.g., In re Gateway Apparel, Inc., 210 B.R. 567, 571 (Bank. E.D. Mo.

1997) (“Gateway Apparel I”) (denying motion to assume unexpired real property

leases which were not in default). 

In this case, Selma never alleged that Debtor’s decision to assume was made

in bad faith or constituted a gross abuse of discretion. The only issue before the

bankruptcy court was whether assumption was likely to benefit the estate. Debtor

argued that assumption would lead to sale and a quick end to Debtor’s chapter 11. 

At the time of the evidentiary hearing, however, no sale was pending and all offers

to purchase were withdrawn. Nevertheless, the evidence was also clear that

Selma’s insistence as to the existence of a default was preventing CNB, and

possibly others, from making an offer prior to the hearing.

As a result of the bankruptcy court’s finding that no default existed, we

need not reach the issue of whether the bankruptcy court, while applying the

proper test, erred in initially denying Debtor’s motion and ordering the Lease
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rejected. Once the bankruptcy court determined that no default existed under the

Lease that a prospective purchaser need immediately cure, CNB, in the period

between the bankruptcy court announcing its finding and the actual entry of the

order, made an offer to Debtor to purchase the property. In light of this offer, it

became apparent that the proposed assumption would enhance the estate, and the

bankruptcy court abused its discretion in not granting Debtor and CNB’s motion

to alter or amend the judgment. CNB's counsel reiterated and confirmed, during

oral argument on appeal, that the offer is still outstanding. 

III. DEBTOR AND CNB’S MOTIONS TO ALTER OR AMEND JUDGMENT

Appellants timely filed a motion to alter or amend the judgment under

Federal Rule of Bankruptcy Procedure 9023 that made Federal Rules of Civil

Procedure 59(e) applicable to this proceeding. Rule 59(e) states that “[a]ny

motion to alter or amend a judgment shall be filed no later than 10 days after entry

of the judgment.” FED. R. CIV. P. 59(e). 

Although the rule identifies the time within which such a motion must

be filed, it does not otherwise establish the criteria by which the

court is to assess the merits of the motion. However, the Eighth

Circuit Court of Appeals quoted with approval the Seventh Circuit

Court of Appeals' statement that the 'limited function' of a motion for

reconsideration is 'to correct manifest errors of law or fact or to

present newly discovered evidence.' 

DeWit v. Firstar Corp., 904 F. Supp. 1476, 1495 (N.D. Iowa 1995)(citing

Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir. 1988) (quoting

Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir. 1987), as

amended, 835 F.2d 710 (7th Cir. 1987)). Rule 59(e) is not intended to allow

parties to introduce new evidence that was subject to discovery prior to trial,

tender new theories, or raise arguments which could have been offered or raised
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prior to judgment. See Innovative Home Health Care, Inc. v. P.T.-O.T. Assocs. of

the Black Hills, 141 F. 3d 1284, 1286 (8th Cir. 1998). 

In addition, the bankruptcy court has broad discretion in determining

whether to grant a motion to alter or amend judgment, and we will not reverse

absent a clear abuse of discretion. See Hagerman, 839 F.2d at 414. A motion

made pursuant to Rule 59 affords relief only in extraordinary circumstances. Dale

& Selby Superette & Deli v. United States Dep't of Agric., 838 F. Supp. 1346,

1348 (D. Minn. 1993). But the rule allows the bankruptcy court "to correct its

own errors, sparing the parties and appellate courts the burden of unnecessary

appellate proceedings." Charles v. Daley, 799 F.2d 343, 348 (7th Cir. 1986). 

And under the unique facts of this case we find that extraordinary circumstances

did exist and that denial of Debtor and CNB’s motions to alter or amend the

judgment constitutes an abuse of discretion. 

 The bankruptcy court should have recognized that new circumstances

existed once it determined that the Lease was not in default. Those circumstances 

were manifested by CNB’s offer to finance and purchase made after the

bankruptcy court’s announcement of its decision on the record, but prior to the

bankruptcy court’s October 30, 2002 order. Although this offer cannot be

considered “newly discovered evidence” since it did not exist at the time of trial,

see Strobl v. New York Mercantile Exch., 590 F. Supp. 875, 878 (S.D.N.Y. 1984),

aff'd, 768 F.2d 22 (2d Cir.), cert. denied, 474 U.S. 1006 (1985)(quoting Campbell

v. American Foreign S.S. Corp., 116 F.2d 926 (2d Cir. 1941)); see also United

States v. Hall, 324 F.3d 720, 723 n.5 (D.C. Cir. 2003) and the cases cited therein,

CNB’s offer was a foreseeable result of the bankruptcy court’s finding that the

Lease was not in default and it must be considered in light of the evidence

presented at trial, including CNB’s stated intent during trial that it was willing to

make such an offer and Selma's statements during trial that a later motion was to

be expected.
2

Even if these funds did nothing more than pay the administrative expenses

of the estate or allow Debtor a chance at reorganization, the funds provide a

benefit to the estate sufficient to meet the requirement of the business judgment

test. See, e.g. Acequia, Inc. v. Clinton (In re Acequia, Inc.), 34 F.3d 800 (9th Cir.

1994)(broadly interpreting “benefit to the estate” under 11 U.S.C. § 550(a)); In re

GP Express Airlines, Inc., 200 B.R. 222, 230 (Bankr. D. Neb. 1996)(finding

Debtor unable to reorganize without assumption).

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When the bankruptcy court found the Lease not in default, it allowed CNB

the ability to purchase the property without fear of curing, or Debtor being unable

to cure. The bankruptcy court’s hesitance to allow assumption should have

substantially dissipated with CNB’s offer. This offer could not have been made

prior to the bankruptcy court’s decision. With CNB’s offer that included an offer

to provide $100,000.00 for the benefit of the estate,2

 assumption of the Lease

easily meets the business judgment test and the bankruptcy court abused its

discretion by failing to amend the judgment to allow for assumption of the Lease.

Furthermore, although delineated as a motion under Rule 59(e) the

bankruptcy court could also have granted the motion under Federal Rule of Civil

Procedure 60(b)(6). 

[T]he standards for relief from judgment under Rules 59(e) and 60(b)

. . . require the court ultimately to consider how justice can best be

served, not whether or not the attorneys for the losing side have done

their job in identifying the basis for the relief the party may wish to

obtain.

DeWit, 904 F. Supp. at 1506 (emphasis in original). 

Rule 60(b)(6) states that “[o]n motion and upon such terms as are just, the court

may relieve a party or a party's legal representative from a final judgment, order,

or proceeding for the following reasons: . . . (6) any other reason justifying relief
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from the operation of the judgment.” Rule 60(b)(6), like Rule 59(e), was intended

to provide relief only where “exceptional circumstances prevented the moving

party from seeking redress through the usual channels." Atkinson v. Prudential

Property Co., Inc., 43 F.3d 367, 373 (8th Cir. 1994)(citations omitted). The court

in Atkinson went on to observe that "[e]xceptional circumstances" are not present

every time a party is subjected to potentially unfavorable consequences as a result

of an adverse judgment properly arrived at. Rather, exceptional circumstances are

relevant only where they bar adequate redress.” Atkinson, 43 F.3d at 373-74. 

Just as we determine exceptional circumstances warranting relief under Rule

59(e), we conclude that those circumstances would also warrant relief from the

judgment under Rule 60(b)(6), although not specifically plead by CNB and

Debtor. 

CNB’s offer, coming on the heels of the bankruptcy court’s finding that the 

Lease was not in default, immediately contradicted the bankruptcy court’s 

assumption that the Lease was not a favorable asset of the estate or an attractive

asset to third parties. It also mitigated the bankruptcy court’s concern that there

were no pending offers to purchase or assign the Lease and that Debtor did not

have sufficient assets to fund needed repairs, capital improvements and

maintenance requirements. Considering CNB’s offer, a direct result of the

bankruptcy court’s decision, the bankruptcy court abused its discretion in not

amending its factual finding to reflect that assumption of the Lease would be in

the best interests of the estate. 

Accordingly, the decision of the bankruptcy court to deny Debtor and CNB’s

motions to alter or amend the judgment is reversed. We remand for entry of an

order vacating the October 30, 2002 order and entering an order approving the

Debtor's assumption of the Lease.
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A true copy.

Attest:

CLERK, U.S. BANKRUPTCY APPELLATE PANEL,

EIGHTH CIRCUIT