/raid1/www/Hosts/bankrupt/TCR_Public/180822.mbx
T R O U B L E D C O M P A N Y R E P O R T E R
Wednesday, August 22, 2018, Vol. 22, No. 233
Headlines
119 THAMES: Voluntary Chapter 11 Case Summary
552 OVINGTON: Taps Goldberg Weprin as Legal Counsel
AC INVESTMENT 1: Seeks to Hire Joel M. Aresty as Attorney
AEROCHAMPION GYMNASTICS: Hires Herbert K. Ryder as Attorney
ALEXANDRIA INVESTMENT: Selling Commercial Papers for $50K
AMERICAN FORKLIFT: Seeks Authority to Use Cash Collateral
AMERICAN HOLLOW: Taps Assessment Evaluation as Appraiser
ANDREW'S & SON: Taps Langley & Chang as Legal Counsel
ARA MACAO HOLDINGS: Trustee Hires Forrester & Worth as Counsel
ARALEZ PHARMACEUTICALS: Seeks Bankruptcy Protection Under CCAA
ASARCO LLC: Loses CERCLA Contribution Suit vs Union Pacific
BARCELONA APARTMENTS: May Continue Using Fannie Mae Cash Collateral
BASIM ELHABASHY: Sale of Remaining Two Cairo Properties Approved
BIOSTAT LLC: Seeks to Hire Murphy CPA Firm as Accountant
BLUE COPPER: Taps Allen Barnes as Legal Counsel
BLUEFIELD WOMEN'S: Taps Clark Schaefer as Accountant
BROOKSTONE HOLDINGS: Hires Berkeley Research as Financial Advisor
BROOKSTONE HOLDINGS: Hires Gibson as Restructuring Co-Counsel
BROOKSTONE HOLDINGS: Hires GLC Advisors as Investment Bankers
BROOKSTONE HOLDINGS: Hires Omni Management as Admin. Agent
BROOKSTONE HOLDINGS: Hires Young Conaway as Bankruptcy Co-Counsel
BRUNO HOLDINGS: $1.15M Sale of Suffern Property to Orlando Granted
CAJ SOUTHWAY: Seeks to Hire Daniel Waldman as Broker
CARITAS INVESTMENT: Taps Jose Arnes as Accountant
CENVEO INC: Court Confirms Bankruptcy Plan, Set to Exit Ch.11
CHARLESTON ASSOCIATES: FATCO Bid to Enforce Chapter 11 Plan Nixed
CHOWDER GAS: Trustee Taps Phillips Organization as Accountant
CHOWDER GAS: Trustee Taps Thompson Hine as Legal Counsel
CJ HOLDING: Court Partly Grants Nunezes' Bid to Pursue Claims
COMMUNITY MEMORIAL: Suit vs Former Officers Partly Dismissed
DIVERSE LABEL: J. Feit Bid to Withdraw Show Cause Order Nixed
DIVERSE LABEL: Seeks Authority on Cash Collateral Use
EAGLE DINER: Taps Konstantinos Tzitzifas as Accountant
EEI ACQUISITION: Seeks Permission to Use Cash Collateral
ELEFTHERIA LLC: Case Summary & Unsecured Creditor
ELEMENTS BEHAVIORAL: Taps Ettin Group as Special Consultant
ENERGY FUTURE: Dispute with S. Fenicle, et al., Can't be Mediated
EXCO RESOURCES: Texas Court Reinstates Basic Energy Appeal
FAIRBANKS COMPANY: FAC Rep Taps Scroggins as Local Counsel
FAIRBANKS COMPANY: FAC Rep Taps Young Conaway as Legal Counsel
FBI WIND DOWN: HHG Claims Fall Outside Arbitration Provision
FLORIDA PAVEMENT: Seeks Authority on Interim Use of Cash Collateral
FRIENDLY HOME: U.S. Trustee Unable to Appoint Committee
GEORGIA CENTRAL UNIVERSITY: Taps Stephen Law Firm as Legal Counsel
GREAT ATLANTIC GRAPHICS: Proposed Sale of Assets to ALCOM Approved
GREAT FOOD: Judge Signs Seventh Cash Collateral Interim Order
HATU WINDS: $3.5M Sale of Property to Salt Lake County Approved
HELLO NEWMAN: Trustee Selling New York Property to Lavian for $7.3M
HENDERSON MECHANlCAL: Allowed to Use IRS Cash Collateral
HN1 LLC: U.S. Trustee Unable to Appoint Committee
HOPEWELL PROMOTIONS: IRS Seeks to Prohibit Cash Collateral Use
HORIZONTAL RENTALS: Case Summary & 20 Largest Unsecured Creditors
HUNGRY HORSE: Court Junks Wagner Firm's 2nd Fee Application
HUNTER MILL: Trial Court Erred on Judgment Against Catjen
IMAGING3 INC: Alpha Capital, Brio Capital Win Summary Judgment Bid
INTERVIEW INC: Ch. 7 Trustee to Auction Assets on Aug. 27
ITGA LLC: Voluntary Chapter 11 Case Summary
JLF 114 LIBERTY: Taps Paul Rachmuth as Bankruptcy Attorney
JOHNS-MANVILLE: Ruling Against S. Parra in Suit vs Marsh Reversed
KASSIS DEVELOPMENT: Case Summary & 5 Unsecured Creditors
KENNETH ALAN SARGENT: Court Grants Bid to Reopen Chapter 11 Case
LA PALOMA GENERATING: District Court Dismisses CARB Appeal as Moot
LANNETT COMPANY: Moody's Cuts CFR & Secured Loans Ratings to 'B3'
LEGAL COVERAGE: Trustee's Selling Diamond Ring to Kharis for $80K
LONGVIEW POWER: ALPS Wins Summary Judgment Bid vs BRL, FATCO
MB INDUSTRIES: Court Contractually Subordinates Dooley's Claim
MLW LLC: Taps Nason Yeager as Special Counsel
MS DIAGNOSTIC: Trustee Taps Daphne Masin as Field Agent
NAVILLUS TILE: Resolves Union Dispute, To Exit Chapter 11 by Oct.
NEW BERN: RS&R Summary Judgment Bid on WC Indemnity Claim Allowed
NO PLACE LIKE HOME: Court Amends Date in Chapter 11 Case Closing
OHAJER12 CORP: U.S. Trustee Unable to Appoint Committee
OSBORN TAVERN: May Use Cash Collateral Until Sept. 7
PAC ANCHOR: Seeks December 11 Plan Exclusivity Period Extension
PELICAN REAL ESTATE: $83K Sale of Consumer Accounts Pool Approved
PES HOLDINGS: Chapter 11 Joint Plan Has Aug. 7, 2018 Effective Date
POLAR US: Fitch Affirms 'B' Issuer Default Ratings, Outlook Stable
POLAR US: Moody's Hikes CFR & 1st Lien Loans Rating to B2
REMARKABLE HEALTHCARE: Taps Griffin Financial as Investment Banker
RICHARD ANNUNZIATA: Judgment Denying Reconsideration Bid Upheld
SAINT & LIBERTINE: $250K Sale of Ivy Kirzhner Trademark to TFL OK'd
SAMSON RESOURCES: 3rd Cir. Upholds Dismissal of D. Jones Appeal
SESAC HOLDCO: S&P Affirms 'B' Issuer Credit Rating, Outlook Neg.
SHILOH TIRE: U.S. Trustee Unable to Appoint Committee
SHIRAZ HOLDINGS: $3M Sale of Iris Property to C&T Approved
SHORT ENVIRONMENTAL: Taps White-Boyd Law as Legal Counsel
SOUTH PLAZA CENTER: U.S. Trustee Unable to Appoint Committee
STORE IT REIT: Equity Committee Seeks Appointment of Examiner
SUBURBAN PROPANE: S&P Alters Outlook to Stable & Affirms BB- ICR
SULTAN FINANCIAL: Taps Dady & Gardner as Litigation Counsel
SURFACE DRILLING: Plan Confirmation Hearing Set for Oct. 23
TANGO TRANSPORT: Trustee Must Respond to NIC Discovery
TECHNOLOGY WAY: Taps Fisher Auction Co. as Auctioneer
THAMES VIEW: Case Summary & 3 Unsecured Creditors
THX PROPERTIES: $3M Sale of 86 Denton Lots to Sumeer Approved
TOP SHELV: Four Courts, Farley Lose Bid for Summary Judgment
TRIBUNE MEDIA: District Court Affirms Ruling Confirming DCL Plan
TRITON INTERNATIONAL: S&P Alters Outlook to Pos. & Affirms BB+ ICR
UNITED CHARTER: Judge Denies Use of Cash Collateral
WILLIAM KNACK: Sale of Chappaqua Property to Denefrios Approved
WOODBRIDGE GROUP: $2.1M Sale of Donnington's Basalt Property Okayed
WOODBRIDGE GROUP: $400K Sale of White's Carbondale Property Okayed
WRIGHTWOOD GUEST: 9th Cir. Affirms Approval of Settlement Agreement
XPLORNET COMMUNICATION: S&P Affirms 'B-' ICR, Outlook Stable
YOCHANAN WALDMAN: $370K Sale of Monsey Property Approved
ZAHMEL RESTAURANT: Amended Cash Collateral Stipulation Okayed
*********
119 THAMES: Voluntary Chapter 11 Case Summary
---------------------------------------------
Debtor: 119 Thames LLC
193 Thames Street
Groton, CT 06340
Business Description: 119 Thames LLC owns in fee simple
three real properties located in Groton and
Gales Ferry, Connecticut with an aggregate
current value of $2.55 million.
Chapter 11 Petition Date: August 19, 2018
Court: United States Bankruptcy Court
District of Connecticut (Hartford)
Case No.: 18-21359
Judge: Hon. James J. Tancredi
Debtor's Counsel: Joseph J. D'Agostino, Jr., Esq.
ATTORNEY JOSEPH J. D'AGOSTINO, JR., LLC
1062 Barnes Road, Suite 108
Wallingford, CT 06492
Tel: (203) 265-5222
Fax: 203-265-5236
Email: joseph@lawjjd.com
Total Assets: $2,550,500
Total Liabilities: $720,413
The petition was signed by Erik Matilla, managing member.
The Debtor stated it has no unsecured creditors.
A full-text copy of the petition is available for free at:
http://bankrupt.com/misc/ctb18-21359.pdf
552 OVINGTON: Taps Goldberg Weprin as Legal Counsel
---------------------------------------------------
552 Ovington LLC seeks approval from the U.S. Bankruptcy Court for
the Eastern District of New York to hire Goldberg Weprin Finkel
Goldstein LLP as its legal counsel.
The firm will advise the Debtor regarding the operation and
rehabilitation of its restaurant business during its Chapter 11
case; assist in negotiations; prepare a bankruptcy plan; and
provide other legal services related to its case.
Goldberg charges $575 per hour for the services of its partners.
The hourly rates for the firm's associates range from $275 to
$425.
The firm received a retainer in the sum of $10,000 from the
Debtor.
Kevin Nash, Esq., at Goldberg, disclosed in a court filing that his
firm does not represent any creditor holding claims against the
Debtor.
Goldberg can be reached through:
Ted J. Donovan, Esq.
Kevin J. Nash, Esq.
Goldberg Weprin Finkel Goldstein LLP
1501 Broadway, 22nd Floor
New York, NY 10036
Tel: (212) 301-6943 / (212) 221-5700
Fax: (212) 422-6836
E-mail: Tdonovan@gwfglaw.com
E-mail: knash@gwfglaw.com
About 552 Ovington LLC
552 Ovington LLC is the owner of a 5,000-square-foot vacant land at
552 Ovington Avenue, Brooklyn, New York, which it acquired in 2016
following a foreclosure sale from the foreclosing third mortgagee,
Congregation Imrei Yehuday. The property does not generate
income.
552 Ovington LLC sought protection under Chapter 11 of the
Bankruptcy Code (Bankr. E.D.N.Y. Case No. 18-43983) on July 11,
2018. In the petition signed by Tim Ziss, managing member, the
Debtor disclosed $1,006,564 in liabilities. Judge Nancy Hershey
Lord presides over the case.
AC INVESTMENT 1: Seeks to Hire Joel M. Aresty as Attorney
---------------------------------------------------------
AC Investment 1, LLC, seeks authority from the U.S. Bankruptcy
Court for the Southern District of Florida to employ Joel M.
Aresty, P.A., as attorney to the Debtor.
AC Investment 1 requires Joel M. Aresty to:
(a) give advice to the Debtor with respect to its powers and
duties as a debtor in possession and the continued
management of its business operations;
(b) advise the Debtor with respect to its responsibilities in
complying with the U.S. Trustee's Operating Guidelines and
Reporting Requirements and with the rules of the court;
(c) prepare motions, pleadings, orders, applications,
adversary proceedings, and other legal documents necessary
in the administration of the case;
(d) protect the interest of the Debtor in all matters pending
before the court; and
(e) represent the Debtor in negotiation with its creditors in
the preparation of a plan.
Joel M. Aresty will be paid based upon its normal and usual hourly
billing rates. The firm will also be reimbursed for reasonable
out-of-pocket expenses incurred.
Joel M. Aresty, a partner at Joel M. Aresty, P.A., assured the
Court that the firm is a "disinterested person" as the term is
defined in Section 101(14) of the Bankruptcy Code and does not
represent any interest adverse to the Debtor and its states.
Joel M. Aresty can be reached at:
Joel M. Aresty, Esq.
JOEL M. ARESTY, P.A.
309 1 st Ave S
Tierra Verde FL 33715
Tel: 305-904-1903
Fax: 800-559-1870
E-mail: Aresty@Mac.com
About AC Investment 1
AC Investment 1, LLC, filed a Chapter 11 bankruptcy petition
(Bankr. S.D. Fla. Case No. 18-18379) on July 11, 2018, disclosing
under $1 million in assets and liabilities. Joel M. Aresty P.A. is
the Debtor's counsel.
AEROCHAMPION GYMNASTICS: Hires Herbert K. Ryder as Attorney
-----------------------------------------------------------
Aerochampion Gymnastics & Sports, Inc., seeks authority from the
U.S. Bankruptcy Court for the District of New Jersey to employ the
Law Offices of Herbert K. Ryder, LLC, as attorney to the Debtor.
Aerochampion Gymnastics requires Herbert K. Ryder to:
a) advise the Debtor as to its duties as a debtor-in-
possession under the Bankruptcy Code, including, without
limitation, the obligation to open debtor-in-possession
bank accounts, file monthly operating reports with the
Bankruptcy Court and the office of the United States
Trustee, pay quarterly fees to the United States Trustee,
maintain adequate insurance on all assets of the bankruptcy
estate, pay all post-petition taxes when due and file
timely returns therefor, neither hire nor pay any
professional without prior authorization of the Bankruptcy
Court, neither sell nor dispose of any assets outside the
ordinary course of business without prior authorization of
the Bankruptcy Court;
b) represent the Debtor at the 341(a) hearing and at any
meetings between the Debtor and creditors or creditors'
committees;
c) assist the Debtor in obtaining the authorization of the
Bankruptcy Court to retain such accountants, appraisers or
other professionals whose services applicant may require in
connection with the operation of its business or the
administration of the Chapter 11 proceedings;
d) defend any motions made by secured creditors to enable
the Debtor to retain the use of assets needed for an
effective reorganization;
e) negotiate with priority, secured and unsecured creditors to
achieve a consensual resolution of their respective claims
and the incorporation of such resolution into a plan
of reorganization;
f) file and prosecute of motions to expunge or reduce claims
which the Debtor disputes;
g) represent the Debtor in the Bankruptcy Court at such
hearings as may require the Debtor's presence or
participate to protect the interest of applicant and the
bankruptcy estate;
h) formulate, negotiate, prepare and file of a disclosure
statement and plan of reorganization, or liquidation, which
conforms to the requirements of the Bankruptcy Code and
applicable rules of procedure;
i) represent the Debtor at hearings on the approval of the
disclosure statement and confirmation of a plan of
reorganization and responding to any objections to same
filed by creditors or other parties in interest;
j) assist the Debtor in discharging its obligations in
consummating any plan of reorganization which is confirmed;
k) advise the Debtor whether and to what extent any of its
assets constitute cash collateral under the Bankruptcy Code
and prosecute applications for authorization to use any
such assets; and
l) provide such other varied legal advice and services as may
be needed by applicant in the operation of its business or
in connection with the Chapter 11 proceedings.
Herbert K. Ryder will be paid at the hourly rate of $300.
Herbert K. Ryder will also be reimbursed for reasonable
out-of-pocket expenses incurred.
Herbert K. Ryder, a partner at the Law Offices of Herbert K. Ryder,
LLC, assured the Court that the firm is a "disinterested person" as
the term is defined in Section 101(14) of the Bankruptcy Code and
does not represent any interest adverse to the Debtor and its
estates.
Herbert K. Ryder can be reached at:
Herbert K. Ryder, Esq.
LAW OFFICES OF HERBERT K. RYDER LLC
531 U.S. Highway 22 East, Suite 182
Whitehouse Station, NJ 08889-3695
Tel: (908) 838-0543
Fax: (908) 838-0544
About Aerochampion Gymnastics
AeroChampion Gymnastics & Sports, Inc., filed a Chapter 11
bankruptcy petition (Bankr. D.N.J. Case No. 18-22999) on June 27,
2018, disclosing under $1 million in both assets and liabilities.
The Debtor is represented by Herbert K. Ryder, Esq., Law Offices of
Herbert K. Ryder LLC.
ALEXANDRIA INVESTMENT: Selling Commercial Papers for $50K
---------------------------------------------------------
Alexandria Investment Group, LLC asks the U.S. Bankruptcy Court for
the Western District of Louisiana to authorize the sale of all of
Red River Bank's remaining rights, title, and interest in said
mortgage, with certain notes, security interests, guarantees, and
indebtedness ("Commercial Papers") to Matt Ritchie and Todd Morrow
for $50,000.
The members of the Debtor previously funded losses of its business,
a hotel and convention center, in excess of $30,000 per month for
approximately 18 months. Pursuant to Orders of the Court, the
Debtor previously sold the hotel and convention center via auction.
However, the proceeds of the sale of the hotel and convention
center did not satisfy its indebtedness to Red River Bank.
The Debtor is the holder of rights and interest under a multiple
indebtedness mortgage secured by property located at 3801 Halsey
St., Alexandria, Louisiana, pursuant to an Act of Assignment of
Mortgages, Security Agreements, Guarantees and Claims, and Asset
Transfer Agreement by Red River Bank dated July 8, 2016. Pursuant
to the Act of Assignment, the Commercial Papers were assigned
and/or transferred to the Debtor. The Debtor is the sole owner of
all rights, title, and interest in the Commercial Papers, and has
been engaged in the process of soliciting potential buyers for the
Commercial Papers.
Reviewing the available options, the Debtor has elected to sell the
Commercial Papers to the Proposed Buyers; the Commercial Papers are
not an easily salable asset, as to realize the value of the same,
foreclosure proceedings are necessary, subject to the risk that the
owner of the property mortgaged under the Commercial Papers could
seek Chapter 11 relief.
The Proposed Buyers have submitted an offer to purchase the
Commercial Papers for the total sum of $50,000, on the condition
that Gold, Weems, Bruser, Sues & Rundell handle all legal services
related to the enforcement of rights and interest in the Commercial
Papers by the Proposed Buyers.
Said enforcement of the Commercial Papers may include, but not be
limited to, the claims of Debtor pending in In re: KAP Enterprises,
LLC, Case Number 12-81464, and In re: Sainath, LLC, Case Number
12-81465, both in the United States Bankruptcy Court, Western
District of Louisiana, Lafayette Division, which claims were
transferred to Debtor in the Act of Assignment, and which claims
will be transferred to the Proposed Buyers or their designee(s) in
connection with the proposed sale of the Commercial Papers.
The Debtor shows that all proceeds of the sale will be deposited in
an FDIC-insured bank deposit account specifically designated by the
DIP for these sales proceeds, and held in said account pending
further order of the Court.
After considering available options, the Debtor asks the Court to
approve the sale procedures. It asks entry of an Order
effectuating a sale of the Commercial Papers free and clear of all
claims and liabilities to the Proposed Buyers or their
designee(s).
Finally, the Debtor asks that the Court eliminates the 14-day stay
period under Bankruptcy Rule 6004(h).
A copy of the Act of Assignment attached to the Motion is available
for free at:
http://bankrupt.com/misc/Alexandria_Investment_113_Sales.pdf
About Alexandria Investment Group
Alexandria Investment Group, LLC, owns a hotel and convention
center located at 2225 and 2301 N. MacArthur Drive, Alexandria,
Louisiana, valued by the company at $2 million. It also owns 12
acres of land in Alexandria, having a valuation of $300,000.
Alexandria Investment Group sought protection under Chapter 11 of
the Bankruptcy Code (Bankr. W.D. La. Case No. 18-80416) on April
24, 2018. In the petition signed by Dr. Harry Hawthorne, member,
the Debtor disclosed $2.57 million in assets and $5.57 million in
liabilities. Judge John W. Kolwe presides over the case. The
Debtor hired Gold, Weems, Bruser, Sues & Rundell, APLC as its legal
counsel.
AMERICAN FORKLIFT: Seeks Authority to Use Cash Collateral
---------------------------------------------------------
American Forklift Rental & Supply, LLC, seeks authority from the
U.S. Bankruptcy Court for the Middle District of Florida to use
cash collateral to pay ordinary and necessary expenses based on the
monthly budget.
The Debtor believes following creditors may assert claims secured
by a lien against property of the estate, including cash
collateral:
(a) Fidelity Bank, in the approximate amount of $929,523,
secured by a Mortgage and Security Agreement against the Debtor's
real property located at 5387 LB McLeod Road, Orlando, FL.
(b) Seacoast National Bank, in the approximate amount of
$49,500.
(c) CAN Capital, in the approximate amount of $5,000.
(d) ABC Merchant Solutions, LLC, in the approximate amount of
$51,204, allegedly resulting from a "Judgment by Confession"
entered in the Supreme Court of the State of New York, County of
Ontario. The Debtor disputes the validity of this alleged secured
claim.
(e) 1st Global Capital, LLC, in the approximate amount of
$95,000.
The Secured Creditors, and any other creditor that may have an
interest in cash collateral, will be adequately protected, as
follows:
(i) the reporting requirements;
(ii) lien on cash collateral after the Petition Date to the
same extent and with the same validity and priority as the lien
held by Secured Creditors prior to the Petition Date;
(iii) maintenance of the Debtor's business; and
(iv) increased value of the Debtor's business as a result of
reorganization.
The Debtor projects that its business can be operated on a
profitable basis such that in the ordinary course of business more
cash collateral will be generated. Thus, the use of the cash
collateral provides Debtor with reasonable opportunity for
reorganization under Chapter 11 which will maximize the value of
the Debtor's business.
A full-text copy of the Cash Collateral Motion is available at
http://bankrupt.com/misc/flmb18-04155-19.pdf
About American Forklift
American Forklift Rental & Supply, LLC --
https://www.americanforkliftrental.com/ -- specializes in forklift
rentals for the Central Florida area including Orlando, Tampa,
Lakeland, Orange County, Polk County, Lake County, and surrounding
areas. It also offers new and used sales on a wide variety of
forklifts.
American Forklift sought protection under Chapter 11 of the
Bankruptcy Code (Bankr. M.D. Fla. Case No. 18-04155) on July 12,
2018. In the petition signed by Joseph Garcia, Jr., managing
member, the Debtor estimated assets of $1 million to $10 million
and liabilities of $1 million to $10 million. Judge Cynthia C.
Jackson presides over the case. Melissa A. Youngman, Esq., in
Altamonte Springs, Florida, serves as counsel to the Debtor.
AMERICAN HOLLOW: Taps Assessment Evaluation as Appraiser
--------------------------------------------------------
American Hollow Boring Company seeks approval from the U.S.
Bankruptcy Court for the Western District of Pennsylvania to hire a
real estate appraiser.
The Debtor proposes to employ Assessment Evaluation, Inc. to
prepare an updated appraisal of its property located at 1901
Raspberry Street, Erie, Pennsylvania.
Assessment Evaluation will receive a fee not to exceed $1,500 for
the appraisal report. In the event the firm provides additional
services after completion of the report, the firm will charge an
hourly fee of $225.
Robert Glowacki, a real estate appraiser employed with Assessment
Evaluation, disclosed in a court filing that his firm does not hold
any interest adverse to the Debtor and its estate.
The firm can be reached through:
Robert E. Glowacki
Assessment Evaluation, Inc.
3645 West Lake Road
Erie, PA 16505
Phone: 814-455-4266
Fax: 814-455-3471
Email: glowacki@assessmentevaluation.com
About American Hollow Boring Company
Founded in 1918, American Hollow Boring Company --
http://www.amhollow.com/-- provides deep hole drilling,
trepanning, honing, and machining services. It operates out of a
60,000-square-foot manufacturing facility in Erie, Pennsylvania.
American Hollow sought protection under Chapter 11 of the
Bankruptcy Code (Bankr. W.D. Pa. Case No. 18-10597) on June
15,2018. In the petition signed by Aimee Gevirtz, secretary and
treasurer, the Debtor estimated assets of $1 million to $10 million
and liabilities of $1 million to $10 million. Judge Thomas P.
Agresti presides over the case. The Debtor tapped Knox McLaughlin
Gornall & Sennett, P.C. as its legal counsel.
ANDREW'S & SON: Taps Langley & Chang as Legal Counsel
-----------------------------------------------------
Andrew's & Son Tradings, Inc., seeks approval from the U.S.
Bankruptcy Court for the Central District of California to hire The
Law Offices of Langley & Chang as its legal counsel.
The firm will advise the Debtor regarding the use, sale or lease of
property; represent the Debtor in negotiations with its creditors;
assist in the preparation of a plan of reorganization; and provide
other legal services related to its Chapter 11 case.
The firm will charge these hourly rates:
Steven Chang $425
Christopher Langley $425
Senior Associate $375
Junior Associate $300
Paralegals $135
Langley & Chang received $40,000, including the filing fee, prior
to the petition date.
Steven Chang, Esq., a principal member of Langley & Chang,
disclosed in a court filing that his firm does not hold any
interest adverse to the Debtor's estate, creditors and equity
security holders.
The firm can be reached through:
Steven P. Chang, Esq.
Christopher Langley, Esq.
David S. Shevitz, Esq.
Heidi M. Cheng, Esq.
The Law Offices of Langley & Chang
13200 Crossroads Parkway North, Suite 165
City of Industry, CA 91746
Telephone: (626) 281-1232
Fax: (626) 281-2919
E-mail: steven@spclawoffice.com
E-mail: chris@langleylegal.com
E-mail: david@rsbankruptcy.com
E-mail: heidi@spclawoffice.com
About Andrew's & Son Tradings
Andrew's & Son Tradings Inc., d/b/a Beston Shoes, is in the
footwear and athletic shoes business.
Andrew's & Son Tradings filed a Chapter 11 petition (Bankr. C.D.
Cal. Case No. 18-18022) on July 13, 2018. The petition was signed
by Jiazheng Lu, president. The case is assigned to Judge Ernest M.
Robles. The Debtor is represented by Christopher J. Langley, Esq.
at Law Offices of Langley & Chang. At the time of filing, the
Debtor reported total $1.04 million in assets and $3.35 million in
debt.
ARA MACAO HOLDINGS: Trustee Hires Forrester & Worth as Counsel
--------------------------------------------------------------
S. Cary Forrester, the Ch. 11 Trustee of Ara Macao Holdings, L.P.,
seeks authority from the U.S. Bankruptcy Court for the District of
Arizona to employ Forrester & Worth, PLLC, as counsel to the
Trustee.
The Trustee requires Forrester & Worth to:
a. represent the Trustee in the administration of the
bankruptcy case, including, without limitation, the
examination of the Debtor as to its acts, conduct and
property;
b. prepare required records, reports, applications, orders,
pleadings, and other legal papers;
c. identify and prosecute claims and causes of action on
behalf of the estate;
d. examine proofs of claim and possible objections to such
claims;
e. prepare and file of a disclosure statement and plan of
reorganization; and
f. assist and advise the Trustee in the performance of his
official duties and functions.
Forrester & Worth will be paid at these hourly rates:
Partners $450 to $500
Associates $275
Paralegals $175
Forrester & Worth will also be reimbursed for reasonable
out-of-pocket expenses incurred.
S. Cary Forrester, a partner at Forrester & Worth, PLLC, assured
the Court that the firm is a "disinterested person" as the term is
defined in Section 101(14) of the Bankruptcy Code and does not
represent any interest adverse to the Debtor and its estates.
Forrester & Worth can be reached at:
S. Cary Forrester, Esq.
FORRESTER & WORTH, PLLC
3636 North Central
Avenue, Suite 700
Phoenix, AZ 85012
Tel: (602) 271-4250
Fax: (602) 271-4300
E-mail: SCF@FORRESTERANDWORTH.COM
JRW@FORRESTERANDWORTH.COM
BHF@FORRESTERANDWORTH.COM
About Ara Macao Holdings
Ara Macao Holdings, L.P., provides real estate development
services.
On April 6, 2018, an involuntary Chapter 11 petition was filed
against Ara Macao Holdings, L.P. (Bankr. D. Ariz. Case No.
18-03615). On May 8, 2018, the involuntary proceeding was
converted to a voluntary Chapter 11 proceeding (Bankr. D. Ariz.
Case No. 18-03615).
The case is assigned to Judge Paul Sala.
The petitioning creditors are KB Partners, Inc., Christopher de
Sibert, Gary Nitsche, Daniel Dorgan, Richard Umbach and Edgewater
Resources, LLC. They are represented by Patrick A Clisham, Esq.,
at Engelman Berger, P.C.
The Debtor hired Burch & Cracchiolo, P.A., as bankruptcy counsel.
S. Cary Forrester was appointed as the Chapter 11 Trustee of Ara
Macao Holdings. The Debtor hired Forrester & Worth, PLLC, as
counsel.
ARALEZ PHARMACEUTICALS: Seeks Bankruptcy Protection Under CCAA
--------------------------------------------------------------
Aralez Pharmaceuticals Canada Inc., and Aralez Pharmaceuticals Inc.
elected to commence a voluntary proceedings under Canada's
Companies' Creditor Arrangement Act in the Ontario Superior Court
of Justice, and Richter Advisory Group Inc. was named as monitor.
The Court authorized the Debtors to obtain and borrow under a
credit facility from Deerfield Private Design Fund III LP and
Deerfield Partners LP in order to finance the Debtors' working
capital requirements and other general corporate purposes and
capital expenditures provided that borrowings under the credit
facility will not exceed $10 million unless permitted by further
order of the Court. In addition, the Court orders that a case
website will be set in accordance with the protocol with these url:
http://insolvency.richter.ca/A/Aralez-Pharmaceuticals.
On. Aug. 10, 2018, Aralez Pharmaceuticals Inc. said it intends to
enter into purchase agreements with two separate stalking-horse
purchasers to sell its main operating businesses: an agreement to
sell its VIMOVO royalties and Canadian operations to Nuvo
Pharmaceuticals Inc. in a transaction valued at $110 million and an
agreement to sell its TOPROL-XL Franchise to its secured lender,
certain funds managed by Deerfield Management Company LP, in a
transaction valued at $140 million. The Company is also engaged in
ongoing efforts to sell the assets not being sold in either of the
proposed transactions and intends to wind down its operations
following the consummation of the sales.
"Following a thorough financial and strategic review, we believe
that these sales, together with an auction process under court
supervision are in the best interests of the Company and its
stakeholders," said Adrian Adams, Chief Executive Officer of
Aralez.
For additional information, vendors and customers may call
1-877-676-4390 or e-mail at aralez@richter.ca.
The Debtors retained as counsel:
Stikeman Elliott LLP
Barristers & Solicitors
5300 Commerce Court West
199 Bay Street
Toronto, Canada M5L 1B9
Ashley Taylor, Esq.
Tel: (416) 869-5236
Email: ataylor@stikeman.com
Kathryn Esaw, Esq.
Tel: (416) 869-6820
Fax: (416) 947-0866
Email: kesaw@stikeman.com
The monitor can be reached at:
Richter Advisory Group Inc.
181 Bay Street, Suite 3320
Bay Wellington Tower
Toronto, ON M5J 2T3
Paul Van Eyk
Tel: (416) 485-4592
Email: PvanEyk@Richter.ca
Pritesh Patel
Tel: (416) 642-9421
Email: ppatel@Richter.ca
The monitor retained as counsel:
Torys LLP
79 Wellington St. W #3000
Toronto, ON M5K 1N2
David Bish, Esq.
Tel: (416) 865-7353
Email: dbish@torys.com
Adam Slavens, Esq.
Tel: (416) 865-7333
Email: aslavens@torys.com
Canadian counsel for Deerfield Managements:
Bennett Jones LLP
3400 One First Canadian Place
PO Box 130
Toronto, ON M5X 1A4
Attn: Sean Zweig, Esq.
Tel: (416) 777-6254
Email: zweigs@bennettjones.com
US counsel for Deerfield Managements:
Katten Muchin Rosenman LLP
525 West Monroe Srteet
Chicago, IL 60661-3693
Peter A. Siddiqui, Esq.
Tel: (312) 902-5455
Email: peter.siddiqui@kattenlaw.com
Jeffrey L. Elegant, Esq.
Tel: (312) 902-5265
Email: jeff.elegant@kattenlaw.com
Mark D. Wood, Esq.
Tel: (312) 902-5493
Email: mark.wood@kattenlaw.com
About Aralez Pharmaceuticals
Aralez Pharmaceuticals Inc. -- http://www.aralez.com/-- is a
specialty pharmaceutical company focused on delivering products to
improve patients' lives by acquiring, developing and
commercializing products in various specialty areas.
The Company together with its affiliates filed for Chapter 11
protection on Aug. 10, 2018 (Bankr. S.D.N.Y. Lead Case No.
18-12425). The Debtor estimated assets and liabilities between
$100 million and $500 million.
The Hon. Martin Glenn presides over the Debtors' Chapter 11 cases.
The Debtors engaged Paul V. Shalhoub, Esq., Robin Spigel, Esq., and
Debra C. McElligott, Esq., of Willkie Farr & Gallagher LLP, as
their counsel. The Debtors selected Prime Clerk LLC as their
claims, noticing and solicitation agent.
ASARCO LLC: Loses CERCLA Contribution Suit vs Union Pacific
-----------------------------------------------------------
Plaintiff, Asarco, LLC, in the case captioned ASARCO, LLC,
Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, Defendant, Case No.
2:12-cv-00283-EJL (D. Idaho) has brought a contribution claim
against Defendant, Union Pacific Railroad Company, under section
113(f) of the federal Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA"). Union Pacific argues
Asarco has no right to bring a contribution claim, denies it is
liable under CERCLA, and contends that Asarco released any
contribution claim against it in the parties' Bankruptcy
Settlement.
Having weighed and evaluated all of the evidence presented and
fully considering the legal arguments of counsel, District Judge J.
Edward Lodge entered a judgment in favor of Union Pacific.
Asarco argues it paid substantially more than its 22% proportional
share when it paid $485,429,882 to resolve its OU3 CERCLA
liabilities with the United States. Asarco's cost expert, Charles
Finch, estimates Asarco overpaid its 22% divisible share of
response costs for OU3 by at least $153 million. As such, Asarco
maintains it has a right to pursue its contribution claim in this
case against Union Pacific.
Pacific disputes the amount Asarco claims it paid, arguing Asarco
paid $482,143,000 or less. Union Pacific further contends that
Asarco failed to establish that it overpaid its proportional share
to settle its OU3 liability with the United States and, therefore,
it does not have a right to contribution under section 113(f).
Specifically, Union Pacific asserts: 1) the final cost of
remediating OU3 is not yet known and, therefore, any claim of
overpayment is speculation; 2) Asarco's payment and OU3 cost
calculations are incorrect; and 3) and Asarco's settlement payment
to the United States was less than its allocated share of liability
for OU3.
Having reviewed the evidence presented at trial, the entire record,
and the parties' arguments and briefing on this issue, the Court
concludes that Asarco has not proven by a preponderance of the
evidence that it overpaid its proportional share of liability.
Using Asarco's calculation, the settlement payment of $414,643,000
is subtracted from $451,167,649.24, which is 22% of the best
estimate of OU3 Costs, $2,050,762,042.01, resulting in an
underpayment of $36,524,649.24; that is to say, Asarco's payment of
$414,643,000 was $36,524,649.24 less than its 22% liability share
of the OU3 response costs.
Under Union Pacific's calculation, Asarco's settlement payment of
$414,643,000 is divided by the total estimated OU3 response costs
of $2,050,762,042.01 which establishes that Asarco paid only 20.21%
of its liability share; less than its 22% proportional share of
liability in OU3.
Based on the foregoing, the Court finds Asarco did not pay more
than its proportional share of its liability for OU3. Asarco's
payment under the CDA Settlement was less than its apportioned 22%
liability. As such, Asarco does not have a right to recover
contribution under section 113(f). For this reason, the Court finds
in favor of Union Pacific.
Thus, Asarco has no right to bring this contribution claim under
section 113(f) of CERCLA. Further, the Court finds Union Pacific
has shown Asarco released its right to bring a contribution claim
against it in the Bankruptcy Settlement.
A full-text copy of the Court's Order dated July 26, 2018 is
available at https://bit.ly/2BnDDRc from Leagle.com.
Asarco LLC, a Delaware LLC, Plaintiff, represented by Gregory Evans
-- gevans@mcguirewoods.com -- McGuireWoods LLP, pro hac vice, John
F. Kurtz , HAWLEY TROXELL ENNIS AND HAWLEY LLP, Keola R. Whittaker
-- kwhitaker@mcguirewoods.com -- McGuire Woods LLP, pro hac vice,
William R. Pletcher , Integer Law Corporation, pro hac vice, Alicia
C. O'Brien -- aobrien@mcguirewoods.com -- McGuire Woods LLP, pro
hac vice, Daniel E. Mooney , HAWLEY TROXELL, Laura G. Brys --
lbrys@mcguirewoods.com -- McGuireWoods LLP, pro hac vice & Timothy
Ryan Kurtz , Hawley Troxell Ennis & Hawley LLP.
Union Pacific Railroad Company, a Utah corporation, Defendant,
represented by Ausey H. Robnett, III , Lake City Law Group PLLC,
Carolyn L. McIntosh -- carolyn.mcintosh@squirepb.com -- Patton
Boggs LLP, pro hac vice, Norton A. Colvin, Jr. , Colvin, Chaney,
Saenz & Rodriguez, LLP, pro hac vice, Robert W. Lawrence , Davis
Graham & Stubbs LLP, pro hac vice, Alexander Arensberg , Squire
Patton Boggs (US) LLP, pro hac vice & Gail L. Wurtzler , Davis
Graham & Stubbs LLP, pro hac vice.
About Asarco LLC
Based in Tucson, Arizona, ASARCO LLC -- http://www.asarco.com/--
is an integrated copper mining, smelting and refining company.
Grupo Mexico S.A. de C.V. is ASARCO's ultimate parent.
ASARCO LLC filed for Chapter 11 protection (Bankr. S.D. Tex. Case
No. 05-21207) on Aug. 9, 2005. Attorneys at Baker Botts L.L.P.,
and Jordan, Hyden, Womble & Culbreth, P.C. represented the Debtor
in its restructuring efforts.
On Dec. 9, 2009, Asarco Incorporated and Americas Mining
Corporation's Seventh Amended Plan of Reorganization for the
Debtors became effective and the ASARCO Asbestos Personal Injury
Settlement Trust was created and funded with nearly $1 billion in
assets, including more than $650 million in cash plus a $280
million secured note from Reorganized ASARCO. The Plan, which was
confirmed both by the bankruptcy and district courts, reintegrated
ASARCO LLC back to parent Grupo Mexico concluding the four-year
Chapter 11 proceeding.
BARCELONA APARTMENTS: May Continue Using Fannie Mae Cash Collateral
-------------------------------------------------------------------
The U.S. Bankruptcy Court for the Northern District of Texas
authorized Barcelona Apartments, LLC, to use Fannie Mae's cash
collateral subject to the protections and consideration described
in the Interim Order and for the expenses set forth on the monthly
budget.
The Debtor is authorized to collect and receive all cash funds
derived from operations of the apartment complex located at 538
Westover Road, Big Spring, Texas 79720, including rents.
The Debtor will not incur expenses for any line item for an amount
that exceeds the amount for such line item in the Budget without
the prior written approval of Fannie Mae. This authorization
includes a line item variance of 10%.
The approved Budget provides total expenses in the approximate
amount of $304,697 during the months of July 2018 through December
2018.
Fannie Mae is granted with replacement liens and security interests
that are co-extensive and to the same validity, priority, and
extent of Fannie Mae's prepetition liens. To the extent the
replacement liens granted are insufficient to protect Fannie Mae's
interest, Fannie Mae is granted a superpriority claim under Section
507(b).
The Debtor's right and authority to use Fannie Mae's cash
collateral will immediately terminate upon the occurrence of any of
the following Event of Default:
(1) Five business-days following the delivery of a notice
(either written or via email) by Fannie Mae of a breach by the
Debtor of any obligations under the Order, which breach remains
uncured at the end of such five business-day notice period;
(2) Conversion of the Debtor's chapter 11 case to a case under
chapter 7 of the Bankruptcy Code;
(3) The appointment of a chapter 11 trustee or receiver under
the Bankruptcy Code;
(4) The entry of any order modifying, reversing, revoking,
staying, rescinding, vacating or amending the Interim Order without
the express prior written consent of Fannie Mae; and
(5) the closing of a sale of all or substantially all of the
Debtor's assets.
A full-text copy of the Order is available at
http://bankrupt.com/misc/txnb18-31925-46.pdf
About Barcelona Apartments
Barcelona Apartments, LLC, is a privately held apartment complex
owner based in Big Spring, Texas.
Barcelona Apartments sought protection under Chapter 11 of the
Bankruptcy Code (Bankr. N.D. Tex. Case No. 18-31925) on June 5,
2018. In the petition signed by Alan Kuatt, managing member, FSG
Holdings, LLC, managing member of Barcelona Apartments, LLC, the
Debtor estimated assets and liabilities of less than $10 million.
The Hon. Barbara J. Houser is the case judge.
Charles Brackett Hendricks, Esq., at Cavazos Hendricks Poirot,
P.C., is the Debtor's counsel.
BASIM ELHABASHY: Sale of Remaining Two Cairo Properties Approved
----------------------------------------------------------------
Judge Erik P. Kimball of the U.S. Bankruptcy Court for the Southern
District of Florida authorized Basim Elhabashy's sale of remaining
two units of real property described as Regents Park off of 90
Avenue South, New Cairo, Cairo, Egypt.
A hearing on the Motion was held on Aug. 1, 2018.
The corresponding broker fee to Amr Hussein Abdelkawi and Hazem Ali
Abdelaziz is approved.
Basim Elhabashy sought Chapter 11 protection (Bankr. S.D. Fla. Case
No. 18-15440) on May 7, 2018. Jordan L. Rappaport, Esq., serves as
counsel to the Debtor.
BIOSTAT LLC: Seeks to Hire Murphy CPA Firm as Accountant
--------------------------------------------------------
Biostat, LLC, seeks authority from the U.S. Bankruptcy Court for
the Middle District of Florida to employ Murphy CPA Firm, as
accountant to the Debtor.
Biostat, LLC requires Murphy CPA Firm to:
a. assist the Debtor in preparing periodic financial
statements, and assist in the preparation of any other
require filing or report needed;
b. assist in reviewing and recording all financial
transactions, including bank reconciliations; review and
record shareholder related transactions, and prepare
monthly financial statements;
c. prepare the Federal Tax Returns as well as consult on all
matters of tax and related areas; and
d. assist in providing advice and solutions to tax planning,
retirement planning and investment management.
Murphy CPA Firm will be paid as follows
Tax Planning and Preparation fees $750-$2,250 flat fee
Quarterly Accounting fees $375-$500 flat fee
Tax and Consultant Related Activities $150 flat fee
Accounting Services $75 per hour
Murphy CPA Firm will also be reimbursed for reasonable
out-of-pocket expenses incurred.
Mark E. Murphy, partner of Murphy CPA Firm, assured the Court that
the firm is a "disinterested person" as the term is defined in
Section 101(14) of the Bankruptcy Code and does not represent any
interest adverse to the Debtor and its estates.
Murphy CPA Firm can be reached at:
Mark E. Murphy
MURPHY CPA FIRM
820 W. Broadway St., Suite 3000
Oviedo, FL 32765
1221 San Bernadino
The Villages, FL 32159
Tel: (407) 328-8460
Fax: (407) 328-9703
About Biostat, LLC
Founded in 2010, Biostat, LLC maintains a presence in the
biomedical field and holds assets that ultimately develop products
used in cutting edge medical treatments for cancer and other
conditions.
Biostat sought protection under Chapter 11 of the Bankruptcy Code
(Bankr. M.D. Fla. Case No. 18-02800) on May 11, 2018. As of March
31, 2017, the Debtor had $900,560 in assets and $1.5 million in
liabilities. The Debtor hired Latham, Shuker, Eden & Beaudine,
LLP, as its legal counsel.
BLUE COPPER: Taps Allen Barnes as Legal Counsel
-----------------------------------------------
Blue Copper Holdings, LLC seeks approval from the U.S. Bankruptcy
Court for the District of Arizona to hire Allen Barnes & Jones, PLC
as its legal counsel.
The firm will advise the Debtor regarding its reorganization;
represent the Debtor in its negotiations with creditors; and
provide other legal services related to its Chapter 11 case.
The firm will charge these hourly rates:
Thomas Allen Member $405
Hilary Barnes Member $355
Michael Jones Member $335
Philip Giles Associate $305
David Nelson Associate $225
Legal Assistants/Law Clerks $115 to $135
Prior to the petition date, Allen Barnes received a retainer in the
sum of $5,000.
The firm does not represent any interest adverse to the Debtor and
its estate, according to court filings.
Allen Barnes can be reached through:
Thomas H. Allen, Esq.
Allen Barnes & Jones, PLC
1850 N. Central Ave., Suite 1150
Phoenix, AZ 85004
Office: (602) 256-6000
Fax: (602) 252-4712
Email: tallen@allenbarneslaw.com
About Blue Copper Holdings
Blue Copper Holdings, LLC, sought protection under Chapter 11 of
the Bankruptcy Code (Bankr. D. Ariz. Case No. 18-09059) on July 30,
2018. In the petition signed by Robert Hunt, manager and member,
the Debtor estimated assets of less than $1 million and liabilities
of less than $500,000.
BLUEFIELD WOMEN'S: Taps Clark Schaefer as Accountant
----------------------------------------------------
Bluefield Women's Center, P.C., seeks approval from the U.S.
Bankruptcy Court for the Southern District of West Virginia to hire
Clark, Schaefer, Hackett as its accountant.
The firm has agreed to provide bookkeeping services and prepare the
Debtor's monthly operating reports at a monthly fee of $2,000.
Meanwhile, the firm will charge $140 per hour for the preparation
of the Debtor's quarterly and annual tax returns and for other
necessary services.
Darrin Spitzer, the Clark Schaefer accountant who will be providing
the services, neither holds nor represents any interest adverse to
the estate, according to court filings.
Clark Schaefer can be reached through:
Darrin Spitzer
Clark, Schaefer, Hackett
14 East Main Street, Suite 500
Springfield, OH 45502
Phone: (937) 399-2000
Fax: (937) 399-5433
Email: dspitzer@cshco.com
About Bluefield Women's Center
Bluefield Women's Center, P.C. --
https://www.bluefieldwomenscenter.com/ -- is a medical company that
specializes in obstetrics, gynecology, infertility and advanced
gynecologic surgery.
Bluefield Women's Center sought protection under Chapter 11 of the
Bankruptcy Code (Bankr. S.D. W.Va. Case No. 18-10063) on May 31,
2018. In the petition signed by Randy Brodnick, president, the
Debtor estimated assets of less than $500,000 and liabilities of $1
million to $10 million. Judge Frank W. Volk presides over the
case. The Debtor tapped Harris Law Offices as its legal counsel.
BROOKSTONE HOLDINGS: Hires Berkeley Research as Financial Advisor
-----------------------------------------------------------------
Brookstone Holdings Corp., and its debtor-affiliates seek authority
from the U.S. Bankruptcy Court for the District of Delaware to
employ Berkeley Research Group, LLC, as financial advisor to the
Debtors.
Brookstone Holdings requires Berkeley Research to:
a. prepare various financial analysis to support restructuring
alternatives, including liquidity forecast, four wall
profitability, expense levels and others as necessary;
b. provide advice to management regarding cash conservation
measures and liquidity forecasting;
c. support the development of restructuring plans, financing
and strategic alternatives for maximizing the Debtors'
enterprise value;
d. assist the Debtors with contingency planning, including the
evaluation, planning and execution of a potential
restructuring;
e. assist the Debtors with communications and negotiations
with various third parties to support restructuring
alternatives;
f. provide other services as requested or directed by the
Debtors' management team; and
g. provide testimony in connection with any of the above
during the Chapter 11 Cases.
Berkeley Research will be paid at these hourly rates:
Managing Directors $845 to $995
Directors $695 to $795
Professional Staff $310 to $695
Support Staff $125 to $295
The Debtors have agreed to pay Berkeley Research a fee of $750,000
upon the consummation of a restructuring of all or substantially
all of the Debtors' debt or the sale of the Debtors or
substantially all of its assets.
Berkeley Research provided prepetition services to the Debtors and,
in the ninety days prior to the Petition Date, the Debtors paid
Berkeley Research $449,624 for professional services performed and
expenses incurred.
The Debtors also paid Berkeley Research $150,000, in cash on
account, which Berkeley Research holds in retainer pursuant to the
Engagement Letter.
Prior to the Petition Date, Berkeley Research incurred $20,000 fees
and expenses but not invoiced. Berkeley Research will apply such
amounts against the Initial Cash on Account. The remainder of the
Initial Cash on Account in the amount of $130,000 will continue to
be held as a general retainer as security for postpetition services
and expenses.
Berkeley Research will also be reimbursed for reasonable
out-of-pocket expenses incurred.
Stephen Coulombe, managing director of Berkeley Research Group,
LLC, assured the Court that the firm is a "disinterested person" as
the term is defined in Section 101(14) of the Bankruptcy Code and
does not represent any interest adverse to the Debtors and their
estates.
Berkeley Research can be reached at:
Stephen Coulombe
BERKELEY RESEARCH GROUP, LLC
70 W. Madison Street, Suite 5000
Chicago, IL 60602
Tel: (312) 429-7900
About Brookstone Holdings Corp.
Founded in 1965, Brookstone Holdings Corp. is a U.S.-based product
developer and retailer of wellness, entertainment, and travel
products that are fun to discover, smart to use and beautiful in
design. Brookstone products are available at its 35 retail
locations in airports throughout the U.S., online at Brookstone.com
and through select premium retailers worldwide.
Brookstone Holdings and its affiliates sought protection under
Chapter 11 of the Bankruptcy Code (Bankr. D. Del. Lead Case No.
18-11780) on August 2, 2018.
In the petitions signed by Stephen A. Gould, secretary, the Debtors
estimated assets of $50 million to $100 million and liabilities of
$100 million to $500 million.
Judge Brendan Linehan Shannon presides over the cases.
The Debtors tapped Gibson, Dunn & Crutcher LLP as their bankruptcy
counsel; Young Conaway Stargatt & Taylor, LLP as Delaware counsel;
Berkeley Research Group, LLC as financial advisor; and GLC Advisors
& Co. as investment banker; Omni Management Group, Inc., as
administrative agent.
BROOKSTONE HOLDINGS: Hires Gibson as Restructuring Co-Counsel
-------------------------------------------------------------
Brookstone Holdings Corp., and its debtor-affiliates seek authority
from the U.S. Bankruptcy Court for the District of Delaware to
employ Gibson Dunn & Crutcher LLP, as bankruptcy and restructuring
co-counsel to the Debtors.
Brookstone Holdings requires Gibson to:
(a) advise the Debtors of their rights, powers, and duties as
debtors in possession under chapter 11 of the Bankruptcy
Code;
(b) prepare, on behalf of the Debtors, all necessary and
appropriate applications, motions, proposed orders, other
pleadings, notices, schedules, and other documents, and
review all financial and other reports to be filed in
these Chapter 11 Cases;
(c) advise the Debtors concerning, and prepare responses to,
applications, motions, other pleadings, notices, and other
papers that may be filed and served in these Chapter 11
Cases;
(d) advise the Debtors with respect to, and assist in the
negotiation and documentation of, financing agreements and
related transactions;
(e) review the nature and validity of any liens asserted
against the Debtors' property and advise the Debtors
concerning the enforceability of such liens;
(f) advise the Debtors regarding their ability to initiate
actions to collect and recover property for the benefit of
their estates;
(g counsel the Debtors in connection with any plan of
reorganization and related documents;
(h) advise and assist the Debtors in connection with any
potential property dispositions;
(i) advise the Debtors concerning executory contract and
unexpired lease assumptions, assignments, and rejections
as well as lease restructurings and recharacterizations;
(j) assist the Debtors in reviewing, estimating, and resolving
claims asserted against the Debtors' estates;
(k) commence and conduct any and all litigation necessary or
appropriate to assert rights held by the Debtors, protect
assets of the Debtors' chapter 11 estates, or otherwise
further the goal of completing the Debtors' successful
reorganization;
(l) provide corporate, employee benefit, litigation, tax, and
other general nonbankruptcy services to the Debtors to the
extent requested by the Debtors; and
(m) perform all other necessary or appropriate legal services
in connection with these Chapter 11 Cases for or on behalf
of the Debtors.
Gibson will be paid at these hourly rates:
Partners $935 to $1,260
Of Counsels $935 to $965
Associates $695 to $885
Paralegals $420 to $440
On June 22, 2018, the Debtors made an initial advance payment to
Gibson in the amount of $250,000. Prior to the Petition Date,
Gibson applied a portion of the Advance Payment. Another portion of
the Advance Payment will be applied to any outstanding balances
existing as of the Petition Date. The remaining amount of the
Advance Payment approximates $7,813.78.
During the 90 days before the Petition Date, the Debtors paid
Gibson $1,707,756.95, consisting of $334,497.00 applied to fees,
$1,738.83 applied to expenses on July 3, 2018; $11,103.05 applied
to fees, $0.00 applied to expenses on July 9, 2018; $267,860.45
applied to fees, $4,468.01 applied to expenses on July 10, 2018;
$152,661.12 applied to fees, $0.00 applied to expenses on July 16,
2018; $69,342.88 applied to fees, $472.57 applied to expenses on
July 18, 2018; $217,897.50 applied to fees, $3,076.69 applied to
expenses on July 23, 2018; $220,941.00 applied to fees, $5,258.57
applied to expenses on July 27, 2018; $167,763.50 applied to fees,
$675.78 applied to expenses on July 31, 2018; $237,444.00 applied
to fees, $4,742.22 applied to expenses on August 6, 2018, and
$7,813.78 remaining in on-account fees.
Gibson will also be reimbursed for reasonable out-of-pocket
expenses incurred.
In accordance with Appendix B-Guidelines for Reviewing Applications
for Compensation and Reimbursement of Expenses Filed under 11
U.S.C. Sec. 330 for Attorneys in Larger Chapter 11 Cases, the
following is provided in response to the request for additional
information:
-- Gibson has not agreed to a variation of its standard or
customary billing arrangements for this engagement.
-- None of Gibson's professionals included in this
engagement have varied their rate based on the geographic
location of these Chapter 11 Cases.
-- Gibson was retained by the Debtors pursuant to an
Engagement Letter dated June 20, 2018 and Gibson's
billing rates and material financial terms have not
changed since that time.
-- The Debtors will be approving a prospective budget and
staffing plan for Gibson's engagement for the post-
petition period as appropriate. In accordance with the
U.S. Trustee Fee Guidelines, the budget may be amended as
necessary to reflect changed or unanticipated
developments.
Matthew J. Williams, partner of Gibson Dunn & Crutcher LLP, assured
the Court that the firm is a "disinterested person" as the term is
defined in Section 101(14) of the Bankruptcy Code and does not
represent any interest adverse to the Debtors and their estates.
Gibson can be reached at:
Matthew J. Williams, Esq.
David M. Feldman, Esq.
Matthew K. Kelsey, Esq.
Keith R. Martorana, Esq.
Jason Zachary Goldstein, Esq.
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue
New York, NY 10166
Tel: (212) 351-4000
Fax: (212) 351-4035
E-mail: mjwilliams@gibsondunn.com
dfeldman@gibsondunn.com
mkelsey@gibsondunn.com
kmartorana@gibsondunn.com
jgoldstein@gibsondunn.com
About Brookstone Holdings Corp.
Founded in 1965, Brookstone Holdings Corp. is a U.S.-based product
developer and retailer of wellness, entertainment, and travel
products that are fun to discover, smart to use and beautiful in
design. Brookstone products are available at its 35 retail
locations in airports throughout the U.S., online at Brookstone.com
and through select premium retailers worldwide.
Brookstone Holdings and its affiliates sought protection under
Chapter 11 of the Bankruptcy Code (Bankr. D. Del. Lead Case No.
18-11780) on August 2, 2018.
In the petitions signed by Stephen A. Gould, secretary, the Debtors
estimated assets of $50 million to $100 million and liabilities of
$100 million to $500 million.
Judge Brendan Linehan Shannon presides over the cases.
The Debtors tapped Gibson, Dunn & Crutcher LLP as their bankruptcy
counsel; Young Conaway Stargatt & Taylor, LLP as Delaware counsel;
Berkeley Research Group, LLC as financial advisor; and GLC Advisors
& Co. as investment banker; Omni Management Group, Inc., as
administrative agent.
BROOKSTONE HOLDINGS: Hires GLC Advisors as Investment Bankers
-------------------------------------------------------------
Brookstone Holdings Corp., and its debtor-affiliates seek authority
from the U.S. Bankruptcy Court for the District of Delaware to
employ GLC Advisors & Co., LLC, and GLCA Securities, LLC, as
investment bankers to the Debtors.
Brookstone Holdings requires GLC Advisors to:
a. review the Debtors' assets, financial condition and
business;
b. assist the Debtors in evaluating their financing
alternatives based upon the their liquidity projections;
c. determine a range of enterprise values for the Debtors in
connection with a Transaction;
d. advise and assist the Debtors in examining, analyzing,
developing, structuring and negotiating the financial
aspects of any potential or proposed strategy for a
Transaction;
e. assist the Debtors in soliciting, coordinating and
evaluating confidential indications of interest and
proposals, tenders and consents in connection with any
Transaction, including by developing marketing materials,
creating and maintaining a data room and contact log, and
initiating and managing contact with interested parties
throughout the process;
f. assist the Debtors in planning for dialog and negotiations
with creditors for a potential transaction; including with
respect to the creditor due diligence process and
negotiations with various creditor constituencies;
g. provide advice and testimony regarding financial matters
related to any Transactions including but not limited to
the valuation range of the Debtors on a reorganized basis,
if necessary;
h. attend meetings of and advise and otherwise communicate
with the Debtors' Board of Directors, its officers and
employees, its other professionals, creditor groups, and
other interested parties, as GLC Advisors and the Debtors
determine to be necessary or desirable; and
i. provide such other financial advisory services as may be
agreed in writing between GLC Advisors and the Debtors.
GLC Advisors will be paid as follows:
a. Monthly Advisory Fees: The Debtors shall pay GLC Advisors a
monthly advisory fee (the "Monthly Advisory Fee") in the
amount of $125,000, payable in advance for the period
commencing on the Effective Date, with the first payment
due upon execution of the Engagement Letter and subsequent
payments due on each monthly anniversary of the Effective
Date;
b. Financing Transaction Fee: The Debtors shall pay GLC
Advisors a financing transaction fee (a "Financing
Transaction Fee") out of the gross proceeds of any
Financing Transaction equal to (i) 1.5% of the aggregate
principal face amount of any secured debt raised,
including, without limitation, any debtor-in-possession or
exit financing raised; (ii) 3.0% of the aggregate principal
face amount of any unsecured debt raised; and (iii) 5% of
any equity or equity linked securities raised; provided,
however, that no Financing Transaction Fee will be payable
with respect to any Financing Transaction provided by
Sanpower Group Co., Ltd. or its affiliates except,
notwithstanding the foregoing, if GLC Advisors runs or
manages a process to obtain Financing for any entity
comprising the Debtors and Sanpower Group Co., Ltd. or its
affiliates provides the Financing, GLC Advisors shall be
entitled to 50% of the Financing Transaction Fee.
c. Sale Transaction Fee: The Debtor shall pay GLC Advisors a
sale transaction fee (the "Sale Transaction Fee") of 1.5%
of the Aggregate Consideration and, to the extent
applicable, payable directly out of the gross proceeds of
the Sale Transaction.
d. Restructuring Transaction Fee: The Debtor shall pay GLC
Advisors a restructuring transaction fee (the
"Restructuring Transaction Fee") equal to $1,500,000 upon
the consummation of any Restructuring and, to the extent
applicable, payable directly out of the gross proceeds of
the Restructuring. Notwithstanding the foregoing, if the
Transaction is to be effectuated as an offer that is
intended to comply with the requirements of Section 3(a)(9)
of the Securities Act, whether or not as part of a
Prepackaged Plan, the applicable Transaction fee shall be
payable on the date that definitive offer documents for the
3(a)(9) Offer are first distributed to creditors whose
claims would be affected thereby.
e. Credit: A one-time credit of 50% of any Sale Transaction
Fees actually paid by the Debtors will be applied against
the Restructuring Transaction Fee, on a dollar for dollar
basis up to 100% of the Restructuring Transaction Fee.
f. Multiple Transaction Fees: The Debtors and GLC Advisors
each acknowledge and agree that more than one Transaction
fee may be payable to GLC Advisors.
g. Expense Reimbursement: In addition to the fees described
above, the Debtors agree to reimbursement of all reasonable
documented out-of-pocket expenses incurred in connection
with the services to be provided by GLC Advisors (including
for the firm's reasonable and documented out-of-pocket fees
and expenses for outside legal counsel incurred in
connection with the Engagement Letter). In connection with
the foregoing, the Debtors have agreed to provide GLC
Advisors with an advance retainer in the amount of $50,000
(the "Expense Retainer"). The Expense Retainer will be
maintained throughout the engagement and returned to the
Debtors upon completion of GLC Advisors's services.
Michael J. Sellinger, managing director of group of GLC Advisors &
Co., LLC, and GLCA Securities, LLC, assured the Court that the firm
is a "disinterested person" as the term is defined in Section
101(14) of the Bankruptcy Code and does not represent any interest
adverse to the Debtors and their estates.
GLC Advisors can be reached at:
Michael J. Sellinger
GLC ADVISORS & CO., LLC
GLCA SECURITIES, LLC
600 Lexington Avenue, 9th Floor
New York, NY 10022
Tel: (212) 542-4540
Fax: (212) 542-4541
About Brookstone Holdings Corp.
Founded in 1965, Brookstone Holdings Corp. is a U.S.-based product
developer and retailer of wellness, entertainment, and travel
products that are fun to discover, smart to use and beautiful in
design. Brookstone products are available at its 35 retail
locations in airports throughout the U.S., online at Brookstone.com
and through select premium retailers worldwide.
Brookstone Holdings and its affiliates sought protection under
Chapter 11 of the Bankruptcy Code (Bankr. D. Del. Lead Case No.
18-11780) on August 2, 2018.
In the petitions signed by Stephen A. Gould, secretary, the Debtors
estimated assets of $50 million to $100 million and liabilities of
$100 million to $500 million.
Judge Brendan Linehan Shannon presides over the cases.
The Debtors tapped Gibson, Dunn & Crutcher LLP as their bankruptcy
counsel; Young Conaway Stargatt & Taylor, LLP as Delaware counsel;
Berkeley Research Group, LLC as financial advisor; and GLC Advisors
& Co. as investment banker; Omni Management Group, Inc., as
administrative agent.
BROOKSTONE HOLDINGS: Hires Omni Management as Admin. Agent
----------------------------------------------------------
Brookstone Holdings Corp., and its debtor-affiliates, seek
authority from the U.S. Bankruptcy Court for the District of
Delaware to employ Omni Management Group, Inc., as administrative
agent to the Debtors.
Brookstone Holdings requires Omni Management to:
(a) assist with, among other things, solicitation, balloting,
and tabulation of votes, and prepare any related reports,
as required in support of confirmation of a chapter 11
plan, and in connection with such services, process
requests for documents from parties in interest,
including, if applicable, brokerage firms, bank back-
offices, and institutional holders;
(b) prepare an official ballot certification and, if
necessary, testify in support of the ballot tabulation
results;
(c) assist with preparation of the Debtors' schedules of
assets and liabilities and statements of financial affairs
and gather data in conjunction therewith;
(d) provide a confidential data room, if requested;
(e) manage and coordinate any distributions pursuant to a
chapter 11 plan;
(f) provide any and all necessary administrative tasks not
otherwise specifically set forth above, and not covered by
the Section 156(c) Application, as the Debtors or their
professionals may require in connection with these Chapter
11 Cases.
Omni Management will be paid at these hourly rates:
President/Executive Waived
Equity Services $175
Technology/Programming $85 to $135
Senior Consultants $140 to $155
Consultants $50 to $125
Analysts $25 to $40
Omni Management will be paid a retainer in the amount of $25,000.
Omni Management will also be reimbursed for reasonable
out-of-pocket expenses incurred.
Paul H. Deutch, senior vice president of Omni Management Group,
Inc., assured the Court that the firm is a "disinterested person"
as the term is defined in Section 101(14) of the Bankruptcy Code
and does not represent any interest adverse to the Debtors and
their estates.
Omni Management can be reached at:
Paul H. Deutch
OMNI MANAGEMENT GROUP, INC.
1120 Avenue of the Americas, 4th Floor
New York, NY 10036
Tel: (818) 906-8300
About Brookstone Holdings Corp.
Founded in 1965, Brookstone Holdings Corp. is a U.S.-based product
developer and retailer of wellness, entertainment, and travel
products that are fun to discover, smart to use and beautiful in
design. Brookstone products are available at its 35 retail
locations in airports throughout the U.S., online at Brookstone.com
and through select premium retailers worldwide.
Brookstone Holdings and its affiliates sought protection under
Chapter 11 of the Bankruptcy Code (Bankr. D. Del. Lead Case No.
18-11780) on Aug. 2, 2018. In the petitions signed by Stephen A.
Gould, secretary, the Debtors estimated assets of $50 million to
$100 million and liabilities of $100 million to $500 million.
Judge Brendan Linehan Shannon presides over the cases.
The Debtors tapped Gibson, Dunn & Crutcher LLP as their bankruptcy
counsel; Young Conaway Stargatt & Taylor, LLP as Delaware counsel;
Berkeley Research Group, LLC as financial advisor; and GLC Advisors
& Co. as investment banker; Omni Management Group, Inc., as
administrative agent.
BROOKSTONE HOLDINGS: Hires Young Conaway as Bankruptcy Co-Counsel
-----------------------------------------------------------------
Brookstone Holdings Corp., and its debtor-affiliates seek authority
from the U.S. Bankruptcy Court for the District of Delaware to
employ Young Conaway Stargatt & Taylor, LLP, as Delaware bankruptcy
co-counsel to the Debtors.
Brookstone Holdings requires Young Conaway to:
a. provide legal advice with respect to the Debtors' powers
and duties as debtors in possession in the continued
operation of their business, management of their
properties, and the potential sale of their assets;
b. prepare and pursue confirmation of a plan and approval of a
disclosure statement;
c. prepare, on behalf of the Debtors, necessary applications,
motions, answers, orders, reports, and other legal papers;
d. appear in Court and protecting the interests of the Debtors
before the Court; and
e. perform all other legal services for the Debtors that may
be necessary and proper in these proceedings.
Young Conaway will be paid at these hourly rates:
Michael R. Nestor $845
Sean M. Beach $715
Andrew Magaziner $530
Tara C. Pakrouh $360
Troy Bollman, Paralegal $255
Young Conaway was retained by the Debtors pursuant to an engagement
agreement dated June 20, 2018. Young Conaway received an initial
retainer of $50,000 on July 9, 2018 and a supplemental retainer in
the amount of $20,000 on July 27, 2018.
Young Conaway will also be reimbursed for reasonable out-of-pocket
expenses incurred.
Sean M. Beach, partner of Young Conaway Stargatt & Taylor, LLP,
assured the Court that the firm is a "disinterested person" as the
term is defined in Section 101(14) of the Bankruptcy Code and does
not represent any interest adverse to the Debtors and their
estates.
Young Conaway can be reached at:
Michael R. Nestor, Esq.
Sean M. Beach, Esq.
Andrew L. Magaziner, Esq.
YOUNG CONAWAY STARGATT & TAYLOR, LLP
1000 North King Street
Wilmington, DE 19801
Tel: (302) 571-6600
Fax: (302) 571-1253
E-mail: mnestor@ycst.com
sbeach@ycst.com
amagaziner@ycst.com
About Brookstone Holdings Corp.
Founded in 1965, Brookstone Holdings Corp. is a U.S.-based product
developer and retailer of wellness, entertainment, and travel
products that are fun to discover, smart to use and beautiful in
design. Brookstone products are available at its 35 retail
locations in airports throughout the U.S., online at Brookstone.com
and through select premium retailers worldwide.
Brookstone Holdings and its affiliates sought protection under
Chapter 11 of the Bankruptcy Code (Bankr. D. Del. Lead Case No.
18-11780) on August 2, 2018.
In the petitions signed by Stephen A. Gould, secretary, the Debtors
estimated assets of $50 million to $100 million and liabilities of
$100 million to $500 million.
Judge Brendan Linehan Shannon presides over the cases.
The Debtors tapped Gibson, Dunn & Crutcher LLP as their bankruptcy
counsel; Young Conaway Stargatt & Taylor, LLP as Delaware counsel;
Berkeley Research Group, LLC as financial advisor; and GLC Advisors
& Co. as investment banker; Omni Management Group, Inc., as
administrative agent.
BRUNO HOLDINGS: $1.15M Sale of Suffern Property to Orlando Granted
------------------------------------------------------------------
Judge Robert D. Drain of the U.S. Bankruptcy Court for the Southern
District of New York authorized Bruno Holdings, LLC's sale of the
real property located at 2 South Street, Suffern, New York, Block
I, Lots 46 and 48, to Orlando South Street Property, LLC for $1.15
million.
The Auction of the Property was conducted on Aug. 2, 2018 at 10:00
a.m.
The sale is free and clear of any and all Liens and Claims.
The Debtor is authorized and directed to pay from the sale proceeds
at the closing on the sale of the Property under the Contract, in
the following order: (a) those reasonable costs and expenses that
it has agreed to incur in accordance with the Contract, or that it
is legally obligated to pay in accordance with applicable law,
except to the extent that Orlando has agreed to otherwise pay such
costs and expenses, and (b) the undisputed portion of any amounts
asserted by Sterling National Bank to be owed by the Debtor secured
by a valid mortgage lien against the Property. The Debtor, by its
counsel, will hold the balance of the sale proceeds in its IOLTA
pending further Order of the Court (and such escrow will constitute
payment for title insurance purposes).
Within 10 days after the closing of the foregoing sale, the Debtor
will cause a closing report to be filed on the docket of the case
The 14-day stay of the Order under Bankruptcy Rule 6004(h) is
waived for cause shown, and the Order is effective immediately upon
its entry.
About Bruno Holdings
Bruno Holdings, LLC, based in Suffern, N.Y., filed a Chapter 11
bankruptcy petition (Bankr. S.D.N.Y. Case No. 16-22738) on May 27,
2016. In the petition signed by Anthony Bruno, managing member,
the Debtor disclosed total assets of $1.10 million and total
liabilities of $763,782. Judge Robert D. Drain presides over the
case. Pick & Zabicki, LLP, is the Debtor's bankruptcy counsel.
CAJ SOUTHWAY: Seeks to Hire Daniel Waldman as Broker
----------------------------------------------------
CAJ Southway Plaza LLC seeks approval from the U.S. Bankruptcy
Court for the District of Massachusetts to hire a broker.
The Debtor proposes to employ Daniel Waldman, a broker in Westwood,
Massachusetts, in connection with the lease or sale of its property
located at 340-400 Rhode Island Boulevard, Fall River,
Massachusetts.
Mr. Waldman will get a commission equal to 5% of the base lease
rate for any commercial lease, which he may procure. In the event
of a sale of the property to a buyer procured by Mr. Waldman, he
will get 3% of any sales price authorized by the bankruptcy court.
In a court filing, Mr. Waldman disclosed that he is a
"disinterested person" as defined in Section 101(14) of the
Bankruptcy Code.
Mr. Waldman maintains an office at:
Daniel Waldman
24 Whitewood Road
Westwood, MA 02090
Phone: (781) 492-1586
Email: Djw930@gmail.com
About CAJ Southway Plaza LLC
CAJ Southway Plaza, LLC, is a single asset real estate limited
liability company that owns and operates Southway Plaza, a
106,000-square-foot retail shopping center located at 340-400 Rhode
Island Boulevard, Fall River, Massachusetts.
CAJ Southway Plaza sought protection under Chapter 11 of the
Bankruptcy Code (Bankr. D. Mass. Case No. 18-12631) on July 10,
2018. At the time of the filing, the Debtor estimated assets of
$1,000,001 to $10 million and liabilities of $1,000,001 to $10
million. Judge Joan N. Feeney presides over the case.
CARITAS INVESTMENT: Taps Jose Arnes as Accountant
-------------------------------------------------
Caritas Investment Limited Partnership seeks approval from the U.S.
Bankruptcy Court for the District of Connecticut to hire an
accountant.
The Debtor proposes to employ Jose Arnes, an accountant in Norwalk,
Connecticut, to examine its books and records; prepare tax returns;
and provide other accounting services related to its Chapter 11
case.
Mr. Arnes will charge an hourly fee of $65 and has requested an
initial retainer of $2,500.
In a court filing, Mr. Arnes disclosed that he neither holds nor
represents any interest adverse to the Debtor's estate.
Mr. Arnes maintains an office at:
Jose Arnes
7 Meher Drive
Norwalk, CT 06850
About Caritas Investment
Headquartered at Stamford, Connecticut, Caritas Investment Limited
Partnership is a single asset real estate as defined in 11 U.S.C.
Section 101(51B). It owns the property at 140 Wallacks Drive,
Stamford, which consists of a parcel on Stamford mainland and an
island in the City of Stamford.
Caritas Investment Limited Partnership filed a Chapter 11 petition
(Bankr. D. Conn. Case No. 17-50456) on April 24, 2017. In its
petition, the Debtor estimated $1 million to $10 million in assets
and liabilities. The petition was signed by John A. Morgan, member
of Morgan 2000, LLC, general partner.
CENVEO INC: Court Confirms Bankruptcy Plan, Set to Exit Ch.11
-------------------------------------------------------------
Cenveo, Inc., a diversified manufacturer of print-related products
including envelopes, custom labels, commercial print, and publisher
solutions, on Aug. 16, 2018, disclosed that the United States
Bankruptcy Court for the Southern District of New York has
confirmed its plan of reorganization, paving the way for the
Company to emerge from Chapter 11 in the coming weeks.
The terms of the Plan will enable the Company to exit Chapter 11
with a substantially deleveraged balance sheet and increased
liquidity, allowing the Company to focus on its operations and grow
its businesses. Prior to filing for Chapter 11, the Company's
liabilities included approximately $1.1 billion in funded debt.
Upon emergence, the Company's funded debt will be reduced by over
$800 million to approximately $325 million.
The Company commenced solicitation of votes for approval of its
Plan earlier this summer and Cenveo's Plan was approved by an
overwhelming majority of its entire creditor body. Approximately
97% of Cenveo's first lien secured noteholders (the "First Lien
Holders"), 100% of its second lien noteholders, including the
largest holder, Brigade Capital Management, and approximately 91%
of general unsecured creditors all voted to approve Cenveo's Plan.
These numbers represent overwhelming support from Cenveo's
creditors for the Plan.
The Plan was the result of the Company's global settlement with its
various creditor groups and the Unsecured Creditors' Committee,
including the Pension Benefit Guaranty Corporation, certain unions,
and the indenture trustee for the unsecured noteholders.
Upon its emergence from Chapter 11, the Company will be privately
held with its largest shareholders comprised of institutional
investors with tens of billions of dollars of capital under
management. Additionally, the Company has entered into a
commitment for a $175 million asset based revolving credit facility
and is expected to only have approximately $68 million used upon
emergence creating $65 million of liquidity when coupled with the
expected cash on hand on the emergence date.
The Company was advised by Kirkland & Ellis LLP as legal counsel,
and Greenhill & Co., Rothschild Inc. and Zolfo Cooper, LLC as
investment bankers and financial advisors.
About Cenveo, Inc.
Headquartered in Stamford, Connecticut, Cenveo (NASDAQ:CVO) --
http://www.cenveo.com/-- is a global provider of print and related
resources, offering world-class solutions in the areas of custom
labels, envelopes, commercial print, content management and
publisher solutions. The Company provides a one-stop offering
through services ranging from design and content management to
fulfillment and distribution. With a worldwide distribution
platform, the Company says it delivers quality solutions and
services every day to its more than 100,000 customers.
After reaching an agreement with holders of a majority of its first
lien debt to support a Chapter 11 plan of reorganization, Cenveo
Inc., and its domestic subsidiaries filed voluntary petitions for
reorganization under Chapter 11 of the U.S. Bankruptcy Code in
White Plains, New York, on Feb. 2, 2018. The Chapter 11 filing
does not include foreign entities, such as those located in India.
As of Dec. 31, 2017, Cenveo disclosed total assets of $789,547,000
and total debt of $1,426,133,000.
The Debtors tapped Kirkland & Ellis LLP as counsel; Rothschild Inc.
as investment banker; Zolfo Cooper LLC as restructuring advisor;
and Prime Clerk LLC as notice, claims & balloting agent, and
administrative advisor. Greenhill & Co., LLC, as co-financial
advisor and co-investment banker.
The U.S. Trustee for Region 2 appointed an official committee of
unsecured creditors in the Debtors' cases. The committee hired
Lowenstein Sandler LLP as its bankruptcy counsel; and FTI
Consulting, Inc., as its financial advisor.
CHARLESTON ASSOCIATES: FATCO Bid to Enforce Chapter 11 Plan Nixed
-----------------------------------------------------------------
Bankruptcy Judge Mike K. Nakagawa denied without prejudice First
American Title Insurance Company's motion to enforce Debtor
Charleston Associates, LLC's plan by requiring payment of plan
payments, or in the alternative, conversion of Debtor's chapter 11
case to chapter 7.
A confirmed Chapter 11 plan is a contract that binds all parties
whose rights are addressed by the plan. In the instant case, New
Boca Syndications Group, LLC has a contractual obligation under the
confirmed Plan to pay the amounts owed by the Debtor arising out of
the RA Southeast Land Company, LLC (RAS) Adversary, including the
RAS Fee Judgment and the FATCO Fee Judgment. New Boca conducts
business in Nevada, maintains bank accounts in Nevada, owns real
property in Nevada, and already has consented to entry of judgments
and orders entered by courts in Nevada. Thus, while FATCO's
request to enforce Article V., C. of the confirmed Plan is without
merit, nothing prevents FATCO or ACIC from commencing the
appropriate civil action in state or federal court to enforce New
Boca's contractual obligations arising under Article IX., I, and
Article VII., C. of the confirmed Plan. As presented, FATCO's
present request to enforce Article V., C., of the confirmed Plan,
however, must be denied without prejudice.
As an "alternative" to an order compelling immediate payment by the
Debtor and New Boca, FATCO seeks to convert the Chapter 11 to
Chapter 7 liquidation under Section 1112(b).
At this juncture, conversion of the reopened Chapter 11 case will
not result in any of the assets of the prior Chapter 11 bankruptcy
estate becoming property of a Chapter 7 estate because the language
of the Plan does not contain a specific provision for continued
liquidation and distribution of the Debtor's assets. Because
confirmation of the Plan vested all property of the Chapter 11
estate in New Boca under Section 1141(b), and no exception was
included in the Plan or the Plan Confirmation Order, conversion to
Chapter 7 will produce no distribution for creditors.
Conversion of this proceeding to Chapter 7 also will not vacate the
Chapter 11 discharge previously obtained by the Debtor. Moreover, a
separate proceeding to revoke the Debtor's discharge under FRCP
60(d)(3) is not before the court.
Because conversion to Chapter 7 will not produce assets for
distribution by a Chapter 7 trustee, nor will conversion vacate the
Chapter 11 discharge previously received by the Debtor, FATCO has
not demonstrated that conversion is warranted in this proceeding.
The bankruptcy case is in re: CHARLESTON ASSOCIATES, LLC, Chapter
11, Debtor, Case No. 13-10499-MKN (Bankr. D. Nev.).
A full-text copy of the Court's Order dated July 24, 2018 is
available at https://bit.ly/2MlObp2 from Leagle.com.
CHARLESTON ASSOCIATES, LLC, Debtor, represented by Karen M. BORG --
kborg@butlerrubin.com -- BUTLER RUBIN SALTARELLI & BOYD LLP, ROBERT
M. CHARLES, Jr. -- rcharles@lrrc.com -- LEWIS ROCA ROTHGERBER
CHRISTIE LLP, DEAN C. GRAMLICH , MUCH SHELIST, P.C., LAURA DAVIS
JONES -- ljones@pszjlaw.com -- PACHULSKI STANG ZIEHL & JONES LLP,
PETER J. KEANE -- pkeane@pszjlaw.com -- PACHULSKI STANG ZIEHL &
JONES LLP, KATHLEEN P. MAKOWSKI -- kmakowski@pszjlaw.com --
PACHULSKI STANG ZIEHL & JONES LLP,BRADFORD J. SANDLER --
bsandler@pszjlaw.com -- PACHULSKI, STANG, ZIEHL & JONES LLP & NEAL
L. WOLF , Hanson Bridgett LLP.
About Charleston Associates
Based in Las Vegas, Nevada, Charleston Associates, LLC, is the
successor by merger to Boca Fashion Village Syndications Group,
LLC. The Debtor initially owned a 96-acre parcel of real estate in
Las Vegas, Nevada and began developing a large community shopping
center thereon. Situated at the northeast corner of the
intersection of Charleston Boulevard and Rampart Boulevard, the
entire shopping center was to be known as "The Shops at Boca
Park."
The Debtor developed Phases I and II (approximately 54 acres) into
an operating shopping center whose tenants currently include
Target, Petland, Vons, Famous Footwear, Ross, OfficeMax, and a
number of other major national retailers and local retailers. The
Debtor transferred developed portions of Phases I and II to
affiliates, but retained and continues to own nearly nine acres of
land in Phases I and II.
Phase III encompassed approximately 41.72 acres. The Debtor
divided Phase III into two parcels consisting of the approximately
18.28-acre parcel that is the Boca Fashion Village property, and an
approximately 23.44-acre parcel of undeveloped land adjacent
thereto. The Undeveloped Land, which remains largely unimproved,
was subsequently the subject of a "friendly foreclosure" by City
National Bank.
The Debtor developed Boca Fashion Village into an operating
shopping center whose tenants currently include The Cheesecake
Factory, Gordon Biersch, Total Wine and More, Grimaldi's Pizzeria,
Kona Grill, REI, Pink the Boutique, and many other national and
local retailers. Boca Fashion Village consists of three in-line
buildings containing 138,869 square feet of rentable area and an
additional 3.74 acre site. The 3.74 acre site was formerly subject
to a ground lease, but is currently owned by Quality Real Estate
Management ("QREM"), and is being renovated to accommodate the
opening of a Fry's Electronics, Inc. store, a "big-box" retail
electronics store. Approximately 118,258 square feet, or 85.2% of
the rentable area in Boca Fashion Village, is currently leased. In
addition, there is a cellular tower located on the property that is
currently leased to Nextel.
Charleston Associates filed for Chapter 11 protection (Bankr. D.
Del. Case No. 10-11970) on June 17, 2010. Judge Kevin J. Carey
presides over the case. Neal L. Wolf, Esq., Dean Gramlich, Esq.,
and Jordan M. Litwin, Esq., at Neal Wolf & Associates, LLC, in
Chicago, Ill., represent the Debtor as counsel. Bradford J.
Sandler, Esq., and Kathleen P. Makowski, Esq., at Pachulski Stang
Ziehl & Jones, LLP, in Wilmington, Del., represent the Debtor as
Delaware counsel. In its schedules, the Debtor disclosed
$92,348,446 in assets and $65,064,894 in liabilities.
Attorneys at Brinkman Portillo Ronk, PC, represent the Official
Committee of Unsecured Creditors as counsel. Thomas M. Horan,
Esq., Steven K. Kortanek, Esq., and Ryan Cicoski, Esq., at Womble
Carlyle Sandridge & Rice, LLP, in Wilmington, Del., represent the
Committee as Delaware counsel.
CHOWDER GAS: Trustee Taps Phillips Organization as Accountant
-------------------------------------------------------------
The Chapter 11 trustee for Chowder Gas and Storage Facility, LLC
and Lake Shore Gas Storage, Inc., seeks approval from the U.S.
Bankruptcy Court for the Northern District of Ohio to hire an
accountant.
Anthony DeGirolamo proposes to employ The Phillips Organization to
provide general accounting and tax-related services. The firm will
charge these hourly rates:
Russell Phillips, Jr. $225
Partner $200
Staff $50 to $100
Russell Phillips, Jr., managing partner of Phillips Organization,
disclosed in a court filing that his firm is a "disinterested
person" as defined in Section 101(14) of the Bankruptcy Code.
The firm can be reached through:
Russell Phillips, Jr.
The Phillips Organization
3924 Cleveland Avenue
Canton, OH 44709
Phone: (330) 493-3928
Fax: (330) 493-7657
E-mail: russ.phillipsjr@phillipsorg.com
About Chowder Gas and Lake Shore Gas
Chowder Gas and Storage Facility LLC and Lake Shore Gas Storage
Inc. are natural gas storage providers based in Willoughby, Ohio.
Chowder Gas and Lake Shore sought protection under Chapter 11 of
the Bankruptcy Code (Bankr. N.D. Ohio Case Nos. 17-17245 and
17-17246) on Dec. 9, 2017. Richard M. Osborne, its managing
member, signed the petitions.
At the time of the filing, Chowder Gas estimated assets and
liabilities of $1 million to $10 million. Lake Shore Gas estimated
assets of less than $50,000 and liabilities of $1 million to $10
million.
Judge Arthur I Harris presides over the cases. The Debtors tapped
Dahl Law LLC as their legal counsel.
Anthony DeGirolamo was appointed Chapter 11 trustee for the
Debtors.
CHOWDER GAS: Trustee Taps Thompson Hine as Legal Counsel
--------------------------------------------------------
The Chapter 11 trustee for Chowder Gas and Storage Facility, LLC,
and Lake Shore Gas Storage, Inc., seeks approval from the U.S.
Bankruptcy Court for the Northern District of Ohio to hire legal
counsel.
Anthony DeGirolamo proposes to employ Thompson Hine LLP to
represent him in the liquidation or disposition of the Debtors'
assets; investigate insider transactions, fraudulent transfers and
recoverable assets; assist him in claims reconciliation and
distribution; and provide other legal services related to their
Chapter 11 cases.
The firm will charge these hourly rates:
Jeremy Campana $485
Andrew Turscak, Jr. $485
James Henderson $405
Scott Prince $240
Thompson Hine is a "disinterested person" as defined in Section
101(14) of the Bankruptcy Code, according to court filings.
The firm can be reached through:
Jeremy M. Campana, Esq.
Andrew L. Turscak, Jr., Esq.
James J. Henderson, Esq.
Thompson Hine LLP
3900 Key Center, 127 Public Square
Cleveland, OH 44114
Phone: 216-566-5500
Fax: 216-566-5800
E-mail: jeremy.campana@thompsonhine.com
E-mail: andrew.turscak@thompsonhine.com
E-mail: james.henderson@thompsonhine.com
About Chowder Gas and Lake Shore Gas
Chowder Gas and Storage Facility LLC and Lake Shore Gas Storage
Inc. are natural gas storage providers based in Willoughby, Ohio.
Chowder Gas and Lake Shore sought protection under Chapter 11 of
the Bankruptcy Code (Bankr. N.D. Ohio Case Nos. 17-17245 and
17-17246) on Dec. 9, 2017. Richard M. Osborne, its managing
member, signed the petitions.
At the time of the filing, Chowder Gas estimated assets and
liabilities of $1 million to $10 million. Lake Shore Gas estimated
assets of less than $50,000 and liabilities of $1 million to $10
million.
Judge Arthur I Harris presides over the cases. The Debtors tapped
Dahl Law LLC as their legal counsel.
Anthony DeGirolamo was appointed Chapter 11 trustee for the
Debtors.
CJ HOLDING: Court Partly Grants Nunezes' Bid to Pursue Claims
-------------------------------------------------------------
Robert and Delia Nunez seek relief from the statutory discharge
injunction provided under 11 U.S.C. section 524 as well as the
injunction and releases provided in Debtors CJ Holding, Co. and
affiliates' confirmed plan to pursue pre-petition personal injury
claims against C&J Well Services, Inc. and an employee solely for
purposes of recovering available insurance proceeds. Bankruptcy
Judge David R. Jones grants the motion in part and denies it in
part.
The Court finds the resolution of the parties' dispute squarely
encompassed within the Fifth Circuit's decision in Houston v.
Edgeworth. In Edgeworth, the Fifth Circuit held that 11 U.S.C.
section 524 does not prohibit a creditor that failed to file a
proof of claim from proceeding to prosecute litigation claims
against a reorganized debtor solely for the purpose of collecting
insurance proceeds. The Fifth Circuit noted, however, that this
exception to section 524 is not available if the debtor is required
to incur substantial costs in the litigation.
Mr. and Mrs. Nunez admit that they did not file a proof of claim.
No assertion is made that they are not bound by the terms of the
confirmed plan in this case. Rather, Mr. and Mrs. Nunez argue that
although the Liberty Policy has a $1 million deductible and that a
$5 million self-insured retention exists before any proceeds of the
excess policy are available to satisfy their claims, it is not
clear that the Debtors will have to actually pay those amounts. In
essence, Mr. and Mrs. Nunez argue that the Edgeworth exception
should apply because the Debtors could choose to breach their
contractual obligations and refuse to pay the $1 million deductible
or the $5 million self-insured retention. The argument fails to
address the fact that Liberty is holding the Debtor's cash as
security for its performance.
The Court is convinced that this is the type of situation
recognized by the Edgeworth Court. In this case, C&J Well is
required to pay the first million, and five of the following six
million in related expenses/recoveries. No legitimate argument
exists that such circumstances would not frustrate C&J Well's
discharge and the fresh start policy engrafted into the Bankruptcy
Code.
Mr. and Mrs. Nunez also argue that the fact that the Debtors'
relevant insurance agreements were assumed under the confirmed plan
requires a different analysis. The Court disagrees. The Edgeworth
balancing remains unchanged.
Applying Edgeworth, the Court denies the Nunezes' motion as to C&J
Well and to Mr. Reece Horton solely in his capacity as an employee
for which C&J Well would have vicarious liability. With respect to
any claims against Mr. Horton individually, outside of his capacity
as an employee, and any personal insurance or other assets that he
may have, the motion is granted.
A copy of the Court's Memorandum Opinion dated August 15, 2018 is
available at:
http://bankrupt.com/misc/txsb16-33590-2481.pdf
About C&J Energy
C&J Energy Services -- http://www.cjenergy.com/-- is a provider of
well construction, well completions, well support and other
complementary oilfield services to oil and gas exploration and
production companies. As one of the largest completion and
production services companies in North America, C&J offers a full,
vertically integrated suite of services involved in the entire life
cycle of the well, including directional drilling, cementing,
hydraulic fracturing, cased-hole wireline, coiled tubing, rig
services, fluids management services and other special well site
services. C&J operates in most of the major oil and natural gas
producing regions of the continental United States and Western
Canada.
C&J Energy Services Ltd. and 14 of its subsidiaries each filed a
voluntary petition under Chapter 11 of the Bankruptcy Code (Bankr.
S.D. Tex. Lead Case No. 16-33590) on July 20, 2016. The Debtors'
cases are pending before Judge David R. Jones.
The law firms Loeb & Loeb LLP, Kirkland & Ellis LLP serve as the
Debtors' counsel. Fried, Frank, Harris, Shriver & Jacobson LLP
acts as special corporate and tax counsel to the Debtors.
Investment bank Evercore is the Debtors' financial advisor, and
AlixPartners is the Debtors' restructuring advisor. Ernst & Young
Inc. is the proposed information officer for the Canadian
proceedings. Donlin, Recano & Company, Inc., serves as the claims,
noticing and balloting agent.
U.S. Trustee Judy A. Robbins appointed five creditors to serve on
the official committee of unsecured creditors in the Chapter 11
case of CJ Holding Co., et al. The Committee hired Greenberg
Traurig, LLP, as counsel for the Committee, Conway MacKenzie, Inc.,
to serve as its financial advisor, Carl Marks Advisory Group LLC as
investment banker.
COMMUNITY MEMORIAL: Suit vs Former Officers Partly Dismissed
------------------------------------------------------------
The Defendants in the case captioned CMH LIQUIDATING TRUST,
Plaintiff, v. TED ANDERSON; WILLIAM BORGERDING; TIMOTHY BURANDT;
BRIAN BURNS; HOLLY CAMPA; BARBARA CLIFF; EUGENE COOLEY; DAVID
COURTNEY; MARVIN COY; LEIF DAHLEEN; NANCY DEXTROM; BRIAN DIETZ;
PAUL ELLINGER; SUSAN ENO; JOHN EVERETT; CARL FRANZON; MICHAEL
KONICKI; JAMES LAUGHLIN; GARY LEWINS; KATHLEEN LIEDER; JAMES
McCLURG; DANIEL NIELAND; DAVID ORAM; JOHN PARIGI II; KENNETH
PLETCHER; CAROLYN RILEY; SHARI SCHULT; FRED VITELLO; JOHN WARD;
DONALD WATSON; MICHAEL WEEKS, and HAL YOST, Defendants, Adversary
Proceeding No. 14-02020 (Bankr. E.D. Mich.) filed motions to
dismiss Plaintiff's amended complaint. Bankruptcy Judge Daniel S.
Opperman grants in part and denies in part the Defendants'
motions.
Community Memorial Hospital, d/b/a/ Cheboygan Memorial Hospital was
a Michigan non-profit hospital that began operations in 1942. CMH
filed for Chapter 11 Bankruptcy on March 1, 2012. The Court
confirmed a Plan of Liquidation for CMH on August 7, 2013.
According to the terms of the plan, Plaintiff CMH Liquidating Trust
is vested with all causes of action that CMH held against former
directors or officers of the hospital. Acting on this authority,
the Trust filed the adversary proceeding on February 27, 2014
against former officers and directors of CMH alleging that their
breach of fiduciary duties and/or negligence resulted in operating
losses for CMH in fiscal years 2008 through 2011 totaling $16.4
million dollars.
The Amended Complaints, like the Original Complaint, allege several
instances where Defendants breached their fiduciary duties and/or
were negligent with regard to acts or omissions which Plaintiff
claims resulted in the financial collapse of CMH.
The Defendants, in their various motions to dismiss, assert that
Plaintiff's Amended Complaints do not present sufficient facts to
state a claim for breach of fiduciary duty and/or negligence that
is plausible on its face. In response, Plaintiff contends that the
Amended Complaints provide enough factual information to state
claims that are facially plausible and therefore, Plaintiff should
be permitted to go forward with discovery to develop the factual
record to support its allegations. According to Plaintiff, the
"crux" of the claims against Defendants is the failure to act to
address the myriad problems at CMH and, although not every event
alleged in the Amended Complaints relates to every Defendant, the
allegations demonstrate that Defendants knew or should have known
of the issues that needed to be addressed in order for CMH to
survive. Furthermore, Plaintiff asserts that, in addition to the
failure to act (nonfeasance), the Amended Complaints sufficiently
state claims for improper actions taken by Defendants
(malfeasance).
Plaintiff has alleged in its Amended Complaints that Defendants
Riley, Eno, Lieder, Ward, Borgerding, Burns, Dextrom, Ellinger,
Franzon, Konicki, McClurg, Nieland and Pletcher were volunteer
directors of CMH. These Defendants assert that as volunteer
directors they are immune from liability under the terms of
exculpatory provisions in CMH's amended articles of incorporation.
The NCA sets forth provisions that are permissible in the articles
of incorporation of a nonprofit corporation such as CMH.
According to both to the terms of NCA, Mich. Comp. Laws section
450.2209(2), and the amendment to Article XI of CMH's articles of
incorporation, the liability of the volunteer directors of CMH for
the conduct at issue, in this case, is limited by the current
provisions of section 450.2209(1)(c). That section permits
exculpatory clauses that limit liability of volunteer directors
"for any action taken or any failure to take any action" except as
to liability for: an amount of a financial benefit received by a
director for which he or she is not entitled; intentional
infliction of harm on the corporation, its shareholders and
members; a violation of Mich. Comp. Laws section 450.2551; for an
intentional criminal act; or for liability imposed under Mich Comp.
Contrary to Plaintiff's assertion, the Michigan Legislature has
made clear in the language of subsection (2) that exculpatory
provisions, such as the one at issue in this case, filed before the
statute was amended in 2015, are considered to eliminate liability
under subsection (1)(c). Under Michigan law, the question of
whether a statute is to be applied retroactively is a question of
legislative intent. The intent of the Legislature is determined
first by the words of the statute itself. "When a statute's
language is unambiguous, the Legislature must have intended the
meaning clearly expressed, and the statute must be enforced as
written." Accordingly, the Amended Complaint must allege sufficient
facts to defeat the exculpatory provisions as limited by subsection
(1)(c).
It is also asserted that Defendant volunteer directors are immune
from liability pursuant to Mich. Comp. Laws section 450.2209(1)(e)
which states that articles of incorporation may contain a provision
assuming liability for "all acts or omissions of a volunteer
director" if the volunteer director was acting or reasonably
believed that he or she was acting within the scope or her
authority, the volunteer was acting in good faith, the volunteer's
conduct did not amount to gross negligence or willful or wanton
misconduct, the conduct was not an intentional tort and the conduct
was not a tort arising out of the ownership, maintenance, or use of
a motor vehicle. Subsection (1)(e) permits, but does not require, a
nonprofit corporation to include such a provision. The amendment to
Article XI of CMH's articles of incorporation provided to this
Court does not contain the kind of provision allowed by subsection
(1)(e) and thus, the Court cannot conclude that any immunity is
afforded under that subsection to Defendant volunteer directors.
In sum, the Court grants the motions to dismiss as to Defendants
Riley, Vitello and Weeks. The Court grants the motion to dismiss
the claims against Defendant Dietz on all claims except the claim
that Dietz failed to address billing issues. The Court denies the
motion as to that issue.
The Court grants the motions to dismiss as to Lieder and Ward.
These Defendants were volunteer directors and excluded from
liability under the exculpatory clause in Amended Article XI. The
motion to dismiss of Eno is denied without prejudice and Eno may
renew her motion to dismiss after discovery is completed on the
limited issue of a benefit she may have received. This Court grants
Lewins' motion to dismiss for the failure to state a claim.
Borgerding was a volunteer director and is excluded from liability
under the exculpatory clause in Amended Article XI. His motion to
dismiss is granted.
Burandt, Coy, Oram and Watson were allegedly non-volunteer
directors. Their motions are denied as Plaintiff has stated a claim
against them and they are not immune under the exculpatory clause.
The Court grants Parigi's Motion to Dismiss.
A full-text copy of the Court's Opinion dated August 2, 2018 is
available at https://bit.ly/2Mr4qRP from Leagle.com.
Community Memorial Hospital, Debtor In Possession, represented by
Paul W. Linehan, Shawn M. Riley & Jayson Ruff.
Gary Lewins, Defendant, represented by Craig S. Neckers.
A. Brooks Darling, Liquidating Trustee, represented by Matthew Boyd
-- mlboyd@krlawtc.com -- Kuhn Rogers PLC & Robert D. Mollhagen.
A. Brooks Darling, Liquidating Trustee, pro se.
Daniel M. McDermott, U.S. Trustee, represented by David Foust.
Unsecured Creditor's Committee of Community Memorial Hospital,
Creditor Committee, represented by Bradley S. Defoe, Stephen F.
MacGuidwin, Michael S. McElwee, Robert D. Mollhagen & Mary Kay
Shaver, Bridgewater Building.
About Community Memorial Hospital
Community Memorial Hospital, operator of the Cheboygan Memorial
Hospital, filed for Chapter 11 bankruptcy (Bankr. E.D. Mich. Case
No. 12-20666) on March 1, 2012. Judge Daniel S. Opperman oversees
the case.
Paul W. Linehan, Esq., and Shawn M. Riley, Esq., at McDonald
Hopkins LLC, in Cleveland, Ohio; and Jayson Ruff, Esq., at McDonald
Hopkins LLC, in Bloomfield Hills, Michigan, represent the Debtor as
counsel. The Debtor's financial advisor is Conway Mackenzie Inc.
The Debtor disclosed $23,085,273 in assets and $26,329,103 in
liabilities as of the bankruptcy filing.
Opened in 1942, the Debtor is an independent, not-for-profit
entity, organized exclusively for charitable, scientific and
educational purposes, and holds tax exempt status in accordance
with Section 501(c)(3) of the Internal Revenue Code. The Cheboygan
Memorial Hospital is a 25-bed critical access hospital located in
Cheboygan, Cheboygan County, a community on the Lake Huron coast.
The Debtor has 395 employees.
McLaren Health Care Corporation proposed to acquire substantially
all of the Debtor's operating assets at its primary hospital
campus, for $5,000,000, plus (2) all amounts required for the
Debtor to cure and assume the assigned Assumed Contracts and
Leases.
Daniel M. McDermott, the U.S. Trustee for Region 9, appointed a
five-member official committee of unsecured creditors in the
Chapter 11 case of Community Memorial Hospital.
Michael S. McElwee, Esq., at Varnum LP, in Grand Rapids, Michigan,
represents the Unsecured Creditors' Committee as counsel.
The Creditors Committee won confirmation of its Corrected First
Amended Plan of Liquidation for the Debtor in August 2013. A
liquidating trust is established to liquidate the Debtor's
remaining assets and distribute the proceeds to creditors. A.
Darling Brooks has been designated as liquidating trustee.
DIVERSE LABEL: J. Feit Bid to Withdraw Show Cause Order Nixed
-------------------------------------------------------------
In the case captioned CARGILL, INC., and CARGILL MEAT SOLUTIONS,
CORP., Plaintiffs, v. WDS, INC., JENNIFER MAIER, and BRIAN EWERT,
Defendants, No. 3:16-cv-00848-FDW-DSC (W.D.N.C.), Chief District
Judge Frank D. Whitney denied Jonathan D. Feit of James, McElroy &
Diehl, P.A.'s motion to withdraw or dismiss the court's order to
show cause.
In May 2018, Tracy Ewert retained Mr. Feit to represent her in a
domestic case against her husband, Brian Ewert. On May 16, 2018,
Mr. Feit on behalf of Tracy Ewert filed a Verified Complaint in
Mecklenburg County against Brian Ewert, ODDS, LLC, DLP Holdings,
LLC, RFS, Inc., Refrigerated Trucking and Logistics, LLC, Jet Me
Around, LLC, Diverse Label Printing, LLC, WDS, Inc., B-Pak
Manufacturing Solutions, LLC, WDS Canada, LLC, WDS Laundry Services
LLC, and TBE LLC. Tracy Ewert, alleging a separation date of April
17, 2018, sought post-separation support, alimony, child support,
child custody, equitable distribution, and injunctive relief in the
Complaint. The Complaint had three exhibits: the jury's verdict in
this case, the initial amended judgment from this case, and Tracy
and Brian Ewert's premarital agreement.
Relying on Chapter 7A's delegation of authority to district courts
on domestic claims, Mr. Feit sought injunctive relief for his
client under N.C. Gen. Stat. 50-20(i) and N.C. Gen. Stat. 1A-1,
Rule 65 in the district court division of North Carolina's General
Court of Justice. Mr. Feit, on behalf of Tracy Ewert, also moved
and obtained an ex parte temporary restraining order before the
Honorable Christy T. Mann.
Here, Mr. Feit suggests that he did not mislead Judge Mann because
he disclosed the existence of this Court's judgment when seeking
the TRO, and when Judge Mann received the Show Cause Order, she
still granted the preliminary injunction enjoining distributions to
Cargill. Mr. Feit filed an Affidavit from Judge Mann to support his
position. Although the Court will consider and afford due weight to
Judge Mann's belief and the subsequent preliminary injunction
order, what Judge Mann believes is not determinative of materiality
or Mr. Feit's ethical obligations. Therefore, the Court will not
withdraw or dismiss the Show Cause Order on the basis of Judge
Mann's affidavit or the Preliminary Injunction Order.
In the Motion to Withdraw or Dismiss, Mr. Feit for the first time
challenges this Court's jurisdiction over him. Mr. Feit explains
that he filed a pleading in state court, rendering Federal Rule of
Civil Procedure 11 inapplicable. Mr. Feit also raises that he had
not appeared before the Court prior to appearing at the show cause
hearing on July 9, 2018. Thus, he contends he could not be held in
direct contempt of Court for his actions in obtaining the ex parte
TRO.
However, as recognized by the majority opinion in Chambers, this
Court does have inherent authority to "sanction[] for abuses of
process occurring beyond the courtroom" and "to control admission
to its bar and to discipline attorneys who appear before it." By
the Court's records, Mr. Feit has been admitted to practice in this
Court since September 25, 2001 and remains active. This Court also
has authority in equity to sanction "a party who shows bad faith by
delaying or disrupting the litigation or by hampering enforcement
of a court order." Mr. Feit did not challenge this Court's
authority on these grounds and raised no objection to this Court's
jurisdiction upon his appearance at the hearing on July 9, 2018.
Mr. Feit also argues that this Court does not have jurisdiction
over Tracy Ewert's domestic claims. However, the Court has not
suggested it has jurisdiction over such proceedings, but rather,
has jurisdiction and authority "in proceedings supplementary to and
in aid of judgment or execution" in accordance with state law
unless a federal statute governs. As a result, the Court has
entered orders in aid of judgment or execution including the
Charging Order. Mr. Feit's attempts to shift the focus to the
domestic law claims further ignores that the Order to Show Cause is
based on his seeking and obtaining the TRO. Although injunctive
relief is permitted under Chapter 50 of the North Carolina General
Statutes, the TRO does not resolve any domestic law claims. It is
an injunction impairing the property of others pending the
determination of Tracy Ewert's interest in the property.
The Court, therefore, denies Mr. Feit's motion. The Court, in the
exercise of its discretion and in light of the further development
of the record after the July 9, 2018 hearing, including the filing
of bankruptcy by DLP, stays consideration of the Court's June 22,
2018 Order to Show Cause for 90 days.
A full-text copy of the Court's Order dated July 27, 2018 is
available at https://bit.ly/2OMaK2D from Leagle.com.
Cargill, Incorporated, Plaintiff, represented by Andrew William
James Tarr -- atarr@robinsonbradshaw.com -- Robinson, Bradshaw &
Hinson, P. A., Fitz E. Barringer -- fbarringer@robinsobradshaw.com
--Robinson, Bradshaw & Hinson, P.A., Jane E. Maschka –
jane.maschka@FaegreBD.com -- Faegre Baker Daniels LLP, pro hac
vice, Kyle J. Essley -- kyle.essley@FaegreBD.com -- Faegre Baker
Daniels LLP, pro hac vice, Martin L. Brackett, Jr. –
mbrackett@robinsonbradshaw.com -- Robinson, Bradshaw & Hinson, P.
A., Christine R.M. Kain – chrisine.kain@FaegreBD.com --Faegre
Baker Daniels LLP, pro hac vice, Daryna Dasha Ternavska, Faegre
Baker Daniels LLP, pro hac vice, Jacob D. Bylund, Faegre Baker
Daniels LLP, pro hac vice & Edward Francis Hennessey, IV –
ehennessey@robinsonbradshaw.com -- Robinson, Bradshaw & Hinson,
P.A.
Cargill Meat Solutions Corporation, Plaintiff, represented by
Andrew William James Tarr , Robinson, Bradshaw & Hinson, P. A.,
Edward Francis Hennessey, IV , Robinson, Bradshaw & Hinson, P. A.,
Jacob D. Bylund , Faegre Baker Daniels LLP, Jane E. Maschka ,
Faegre Baker Daniels LLP, pro hac vice, Kyle J. Essley , Faegre
Baker Daniels LLP, pro hac vice,Martin L. Brackett, Jr. , Robinson,
Bradshaw & Hinson, P. A., Christine R.M. Kain , Faegre Baker
Daniels LLP & Daryna Dasha Ternavska , Faegre Baker Daniels LLP.
WDS, Inc., Defendant, represented by Alan B. Felts --
afelts@tuggleduggins.com -- Tuggle Duggins P.A., Jeffrey S.
Southerland -- jsoutherland@tuggleduggins.com --Tuggle Duggins &
Meschan, P.A., Denis E. Jacobson -- djacobson@tuggleduggins.com --
Tuggle, Duggins & Meschan, P. A. & Richard Wyatt Andrews, II --
randews@tuggleduggins.com -- Tuggle Duggins P.A.
Jennifer Maier, Defendant, represented by Alan M. Ruley, Bell,
Davis & Pitt, P.A., Andrew Allen Freeman, Bell, Davis & Pitt, P.A.
& Mark A. Jones, Bell, Davis & Pitt P.A.
Brian Ewert, Defendant, represented by David B. Freedman, CRUMPLER
FREEDMAN PARKER & WITT, Raboteau T. Wilder, Jr., Terpening Wilder
Law, Benjamin Norman Thompson, Wyrick Robbins Yates & Ponton LLP,
Jennifer Blakely Kiefer, Wyrick Robbins Yates & Ponton, LLP &
Tobias Samuel Hampson, Wyrick Robbins Yates & Ponton LLP.
Diverse Label Printing, LLC, Movant, represented by Vicki L.
Parrott -- vlp@nbfirm.com -- Northen Blue, LLP & James Michael
Weiss -- jamie.weiss@elliswinters.com -- Ellis & Winters LLP.
About Diverse Label Printing
Diverse Label Printing, LLC, a company in Burlington, North
Carolina, specializes in producing labels for food, food
processing, supermarket, consumer goods, and other uses. Diverse
Label sought protection under Chapter 11 of the Bankruptcy Code
(Bankr. M.D. N.C. Case No. 18-10792) on July 23, 2018. In the
petition signed by Ed Bidanset, chief executive officer, the Debtor
disclosed $15,750,989 in assets and $10,499,186 in liabilities.
Judge Catharine R. Aron presides over the case. The Debtor tapped
hire Northen Blue, LLP as its legal counsel.
DIVERSE LABEL: Seeks Authority on Cash Collateral Use
-----------------------------------------------------
Diverse Label Printing, LLC, seeks authority from the U.S.
Bankruptcy Court for the Middle District of North Carolina to use
cash collateral.
The Debtor obtained loans from First National Bank of Pennsylvania
("FNB") secured by certain property of the Debtor, summarized as
follows:
(a) Promissory Note in the original principal amount of
$3,000,000 by and between the Debtor and FNB and guaranteed by Mr.
Ewert. The Line of Credit is secured by a lien upon the Debtor's
inventory and accounts receivable.
(b) Promissory Note in the original principal amount of
$950,000 by and between the Debtor and FNB and guaranteed by Mr.
Ewert. The Press Loan is secured by a blanket lien on the Debtor's
assets.
The Debtor also entered into equipment lease agreements with Bank
Capital Services, LLC, dba F.N.B. Equipment Finance, which is a
subsidiary or affiliate of FNB. These leases provide for a $1
purchase option at the end of the lease term and under applicable
state law are in fact conditional sale agreements with the purchase
price secured by the leased equipment.
With respect to the secured claims held by FNB and BCS,
respectively:
(a) The amount outstanding on the FNB Line of Credit as of the
Petition Date is approximately $2,121,486, and the Debtor believes
the accounts receivable (face amount) and inventory (at cost) has
an aggregate value of approximately $7,968,000.
(b) The amount outstanding on the FNB Press Loan as of the
Petition Date is approximately $516,651, and the Debtor believes
the collateral securing the Press Loan has a book value of
approximately $4,719,000.
(c) The aggregate amount outstanding on the BCS Knife Room
Lease as of the Petition Date is approximately $1,359,611, and the
Debtor believes the collateral securing the Knife Room Lease has a
book value of approximately $1,543,000 and a liquidation value in
an unknown but substantially smaller amount.
(d) The amount outstanding on the BCS Car Lease as of the
Petition Date is approximately $17,761, and the Debtor believes the
collateral securing the Car Lease (a Honda Crosstour) has a book
value of approximately $22,035 and a liquidation value in an
unknown but somewhat smaller amount.
FNB asserts a first priority security interest in the Debtor's
accounts receivable and inventory, the proceeds of which would
constitute cash collateral. The Debtor is not aware of any other
liens or security interests against accounts receivable or
inventory.
The Debtor offers to provide FNB with adequate protection for the
use of its cash collateral by:
(a) Limiting the use of cash collateral as generally projected
in the Budget, and set forth in the proposed Interim Order, or as
may otherwise be approved by the Court after further notice and
hearing.
(b) Providing FNB with monthly adequate protection payments in
amounts equal to its contract rate of interest pending further
hearings.
(c) Providing FNB with a continuing post-petition lien and
security interest in all property and categories of property of the
Debtor in which and of the same priority as said creditor held a
similar, unavoidable lien as of the Petition Date, and the proceeds
thereof, whether acquired pre-petition or post-petition, equivalent
to a lien granted under sections 364(c)(2) and (3) of the
Bankruptcy Code, but only to the extent of cash collateral used.
(d) Providing FNB and the Bankruptcy Administrator with
financial reports for the Debtor in form and frequency reasonably
acceptable to such parties and as provided in the proposed Order.
A full-text copy of the Cash Collateral Motion is available at
http://bankrupt.com/misc/ncmb18-10792-9.pdf
About Diverse Label Printing
Diverse Label Printing, LLC, a company in Burlington, North
Carolina, specializes in producing labels for food, food
processing, supermarket, consumer goods, and other uses. Diverse
Label sought protection under Chapter 11 of the Bankruptcy Code
(Bankr. M.D. N.C. Case No. 18-10792) on July 23, 2018. In the
petition signed by Ed Bidanset, chief executive officer, the Debtor
disclosed $15,750,989 in assets and $10,499,186 in liabilities.
Judge Catharine R. Aron presides over the case. The Debtor tapped
hire Northen Blue, LLP, as its legal counsel.
William Miller, U.S. bankruptcy administrator, on Aug. 8, 2018,
appointed three creditors to serve on an official committee of
unsecured creditors. The committee members are: (1) Green Bay
Packaging; (2) Compass Plastics; and (3) Berry Global.
EAGLE DINER: Taps Konstantinos Tzitzifas as Accountant
------------------------------------------------------
Eagle Diner Corp. seeks approval from the U.S. Bankruptcy Court for
the Eastern District of Pennsylvania to hire an accountant.
The Debtor proposes to employ Konstantinos Tzitzifas, a certified
public accountant, to assist in the preparation of its monthly
operating reports and tax returns; provide routine bookkeeping
services; and assist in preparing financial information required
for the formulation of a Chapter 11 plan.
Mr. Tzitzifas will be paid a monthly fee of $600 for his services.
Mr. Tzitzifas does not represent any interest adverse to the Debtor
and its estate, according to court filings.
About Eagle Diner Corp.
Eagle Diner Corp. sought protection under Chapter 11 of the
Bankruptcy Code (Bankr. E.D. Pa. Case No. 18-15169) on Aug. 6,
2018. At the time of the filing, the Debtor estimated assets of
less than $50,000 and liabilities of less than $100,000. Judge
Magdeline D. Coleman presides over the case. The Debtor tapped
McDowell Law, PC, as its legal counsel.
EEI ACQUISITION: Seeks Permission to Use Cash Collateral
--------------------------------------------------------
EEI Acquisition Corp. asks the U.S. Bankruptcy Court for the
Northern District of Ohio for permission to use cash collateral on
a limited basis in accordance with the proposed cash-basis budget.
It is contemplated that the Debtor's manufacturing operations will
be transferred to the winning bidder at the auction sale scheduled
for August 6, 2018, upon a closing of the sale some 11 or more days
after confirmation of the sale by final order of the Court on
August 7, 2018.
Thus, the Debtor needs to use cash collateral to fund its
operations until the proposed auction sale. Without the ability to
use its cash collateral, the Debtor will not be able to maintain
its manufacturing operations, and sale value will decline
precipitously to the detriment of the Debtor and all parties in
interest.
In addition, the Debtor needs to use cash collateral to wind down
its business operations after the sale. Wind down activities will
include calculating and paying the fees of the U.S. Trustee,
terminating the Debtor's 401(k) plan, preparing final tax returns
and handling the remaining legal aspects of this case after the
sale.
The Debtor's primary secured creditor is Erie Bank. The Debtor
owes Erie Bank approximately $2,073,568 on four separate business
loans. The Debtor also owes Erie Bank approximately $3,620,000
based on secured guaranties of two separate mortgage obligations
owed to Erie Bank by Debtor's affiliate, P&G Capital, LLC.
Therefore, the total debt owed to Erie Bank on a secured basis is
approximately $5,693,568.
Fora Financial claims to be owed approximately $250,000 and has
filed suit against the Debtor in the Court of Common Pleas of
Geauga County. The Debtor has vigorously disputed Fora's claims and
has filed an extensive counterclaim.
National Funding Inc. claims to be owed approximately $146,000 and
has filed suit in the Superior Court of Los Angeles County. The
Debtor has vigorously disputed National Funding's claims and has
filed an extensive counterclaim.
As the August budget demonstrates, the proposed use of cash
collateral will generate approximately $887,789 while using
$636,721. The Debtor believes that there will be no decrease in
value attributable to the proposed use of cash. Under these
circumstances, the Debtor believes that no adequate protection is
required. Nevertheless, the Debtor proposed to grant adequate
protection to all Secured Creditors in the form of a post-petition
lien on assets to the same extent, validity and priority held
before the case was filed.
The Debtor also proposes, during the August period, to make a
substantial payment of fees to the U.S. Trustee, currently
estimated at $50,000, but which could be more depending on the
results of the auction sale.
A full-text copy of the Cash Collateral Motion is available at
http://bankrupt.com/misc/ohnb18-13963-46.pdf
About EEI Acquisition Corp.
d/b/a Engineered Endeavors
EEI Acquisition Corp., d/b/a Engineered Endeavors --
http://www.engend.com/-- designs and manufacturers tapered steel
pole structures for utility, transmission, substation, wireless and
disguised applications.
EEI Acquisition Corp., d/b/a Engineered Endeavors, filed a Chapter
11 petition (Bankr. N.D. Ohio Case No. 18-13963) on July 3, 2018.
In the petition was signed by Patrick H. Deloney, president, the
Debtor disclosed total assets of $2.71 million and total
liabilities of $8.88 million. The case is assigned to Judge Arthur
I. Harris. Thomas W. Coffey, Esq. of Coffey Law LLC, is the
Debtor's counsel.
ELEFTHERIA LLC: Case Summary & Unsecured Creditor
-------------------------------------------------
Debtor: Eleftheria, LLC
2884 Walnut Grove
Memphis, TN 38111
Business Description: Eleftheria, LLC is a privately held company
in Memphis, Tennessee.
Chapter 11 Petition Date: August 20, 2018
Court: United States Bankruptcy Court
Western District of Tennessee (Memphis)
Case No.: 18-26958
Judge: Hon. George W. Emerson Jr.
Debtor's Counsel: Eugene G. Douglass, Esq.
DOUGLAS & RUNGER
2820 Summer Oaks Drive
Bartlett, TN 38134
Tel: (901) 388-5804
Fax: (901) 372-8264
Email: gene@douglassrunger.com
bk@douglassrunger.com
Estimated Assets: $0 to $50,000
Estimated Liabilities: $1 million to $10 million
The petition was signed by James Skefos, chief manager.
The Debtor lists Kirkland Group as its sole unsecured creditor
holding an unknown amount of claim.
A full-text copy of the petition is available for free at:
http://bankrupt.com/misc/nceb18-26958.pdf
ELEMENTS BEHAVIORAL: Taps Ettin Group as Special Consultant
-----------------------------------------------------------
EBH Topco, LLC seeks approval from the U.S. Bankruptcy Court for
the District of Delaware to hire Ettin Group, LLC, as its special
consultant.
The firm will provide liquidation services, which include
overseeing the removal and disposal of personal property owned and
leased by the Debtor at its toxicology laboratory in San Antonio,
Texas; oversee the removal and disposal of bio-hazardous materials;
and notifying and coordinating with lessors to pick up their leased
assets.
Ettin Group will be paid a fee of $2,000 per day for advisory
services and for the disposition and removal of assets at the lab.
In addition, the firm will handle the disposition of the salvage
items in exchange for a $5,000credit on fees payable.
The Debtor is required to make an initial fee deposit of $10,000
upon commencement of work.
Ross Ettin, president of Ettin Group, disclosed in a court filing
that his firm is a "disinterested person" as defined in section
101(14) of the Bankruptcy Code.
The firm can be reached through:
Ross A. Ettin
Ettin Group, LLC
450 Skokie Boulevard
Northbrook, IL 60062
Phone: 847-917-8044
Fax: 847-919-3813
About Elements Behavioral Health
Long Beach, California-based EBH Topco, LLC along with its
subsidiaries -- http://www.elementsbehavioralhealth.com/-- are
providers of behavioral health services and residential drug and
alcohol addiction treatment. The Elements Behavioral Health(R)
family of programs offers comprehensive, innovative treatment for
substance abuse, sexual addiction, trauma, eating disorders, and
other mental health disorders.
EBH Topco, LLC (Lead Case), Elements Behavioral Health, Inc., and
certain of its affiliates sought Chapter 11 bankruptcy protection
on May 23, 2018 (Bankr. D. Del. Lead Case No. 18-11212).
In the petition signed by CRO Martin McGahan, the Debtors estimated
$50 million to $100 million in assets and under $100 million to
$500 million in liabilities.
Hon. Brendan Linehan Shannon presides over the Debtors' cases.
Christopher A. Ward, Esq., Shanti M. Katona, Esq., Stephen J.
Astringer, Esq., and Jeremy R. Johnson, at Polsinelli PC, serve as
counsel to the Debtors. Alvarez & Marsal LLC acts as restructuring
advisor to the Debtors; Houlihan Lokey Capital, Inc., is the
investment banker; and Donlin, Recano & Company, Inc., is the
notice and claims agent.
On June 11, 2018, Andrew Vara, acting U.S. trustee for Region 3,
appointed an official committee of unsecured creditors. The
Committee retained Bayard P.A. as legal counsel, Arent Fox LLP as
co-counsel, and Zolfo Cooper, LLC, as financial advisor.
ENERGY FUTURE: Dispute with S. Fenicle, et al., Can't be Mediated
-----------------------------------------------------------------
Chief Magistrate Judge Mary Pat Thynge recommends that the case
captioned SHIRLEY FENICLE, ET AL., Appellants, v. EFH PLAN
ADMINISTRATOR BOARD, ET AL., Appellees, Civ. Nos. 18-877-RGA,
18-878-RGA (D. Del.) be withdrawn from the mandatory referral for
mediation and proceed through the appellate process of this Court.
As a result of a screening process, the issues involved are not
amenable to mediation and mediation at this stage would not be a
productive exercise, a worthwhile use of judicial resources nor
warrant the expense of the process.
As noted by the parties, none believe that mediation would be
productive at the present time, nor feel that the issues involved
in the appeals are amenable to mediation or would be a productive
use of judicial resources. Further, on June 18, 2018, Appellants
filed a motion to remove these appeals from mediation and for
expedited briefing and a hearing. Regarding a proposed briefing
schedule on these appeals, the parties have completed briefing on
their positions concerning the motion to expedite, which addresses
the schedule for briefing and consideration of the appeal.
A copy of the Court's Recommendation dated July 25, 2018 is
available at https://bit.ly/2MiD1kG from Leagle.com.
Shirley Fenicle, individually and as successor-in-interest to the
Estate of George Fenicle, et al, George Fenicle, David William
Fahy, John H. Jones, David Heinzmann, Harold Bissell, Kurt Carlson,
Robert Albini, individually and as successor-in-interest to the
Estate of Gino Albini, Denis Bergschneider, and Charlotte and
Curtis Liberda, Gino Albini, Denis Bergschneider, Charlotte Liberda
& Curtis Liberda, Appellants, represented by Daniel K. Hogan, Hogan
McDaniel.
EFH Plan Administrator Board, Appellee, represented by Mark David
Collins -- collins@rlf.com Richards, Layton & Finger, PA, Daniel
J. DeFranceschi -- defranceschi@rlf.com -- Richards, Layton &
Finger, PA & Jason Michael Madron -- madron@rlf.com -- Richards,
Layton & Finger, PA.
Energy Future Holdings Corp., Appellee, represented by David M.
Klauder -- dklauder@bk-legal.com -- Bielli & Klauder, LLC & Cory
Preston Stephenson, Bielli & Klauder, LLC.
Energy Future Intermediate Holding Company LLC, Appellee,
represented by Joseph H. Huston, Jr. , Stevens & Lee.
UMB Bank, N.A., as Trustee, and Elliott, Appellee, represented by
Scott D. Cousins -- scousins@bayardlaw.com -- Bayard, P.A., Erin R.
Fay -- efay@bayardlaw.com -- Bayard, P.A. & Evan Thomas Miller --
emiller@bayardlaw.com -- Bayard, P.A.
Fee Committee, Appellee, represented by Jennifer R. Hoover, Benesch
Friedlander Coplan & Aronoff & William Mark Alleman, Jr., Benesch
Friedlander Coplan & Aronoff.
About Energy Future
Energy Future Holdings Corp., formerly known as TXU Corp., is a
privately held diversified energy holding company with a portfolio
of competitive and regulated energy businesses in Texas. Oncor, an
80 percent-owned entity within the EFH group, is the largest
regulated transmission and distribution utility in Texas. The
Company delivers electricity to roughly three million delivery
points in and around Dallas-Fort Worth. EFH Corp. was created in
October 2007 in a $45 billion leverage buyout of Texas power
company TXU in a deal led by private-equity companies Kohlberg
Kravis Roberts & Co. and TPG Inc.
On April 29, 2014, Energy Future Holdings and 70 affiliated
companies sought Chapter 11 bankruptcy protection (Bankr. D. Del.
Lead Case No. 14-10979) after reaching a deal with some key
financial stakeholders to keep its businesses operating while
reducing its roughly $40 billion in debt.
The Debtors' cases have been assigned to Judge Christopher S.
Sontchi (CSS).
As of Dec. 31, 2013, EFH Corp. reported assets of $36.4 billion in
book value and liabilities of $49.7 billion. The Debtors had $42
billion of funded indebtedness as of the bankruptcy filing.
EFH's legal advisor for the Chapter 11 proceedings is Kirkland &
Ellis LLP, its financial advisor is Evercore Partners and its
restructuring advisor is Alvarez & Marsal. The TCEH first lien
lenders supporting the restructuring agreement are represented by
Paul, Weiss, Rifkind, Wharton & Garrison, LLP as legal advisor, and
Millstein & Co., LLC, as financial advisor.
The EFIH unsecured creditors supporting the restructuring Agreement
are represented by Akin Gump Strauss Hauer & Feld LLP, as legal
advisor, and Centerview Partners, as financial advisor. The EFH
equity holders supporting the restructuring agreement are
represented by Wachtell, Lipton, Rosen & Katz, as legal advisor,
and Blackstone Advisory Partners LP, as financial advisor. Epiq
Systems is the claims agent.
Wilmington Savings Fund Society, FSB, the successor trustee for the
second-lien noteholders owed about $1.6 billion, is represented by
Ashby & Geddes, P.A.'s William P. Bowden, Esq., and Gregory A.
Taylor, Esq., and Brown Rudnick LLP's Edward S. Weisfelner, Esq.,
Jeffrey L. Jonas, Esq., Andrew P. Strehle, Esq., Jeremy B. Coffey,
Esq., and Howard L. Siegel, Esq.
On May 13, 2014, the U.S. Trustee appointed the Official Committee
of TCEH Unsecured Creditors in the Chapter 11 Cases. The TCEH
Committee is composed of (a) the Pension Benefit Guaranty
Corporation; (b) HCL America, Inc.; (c) BNY, as Indenture Trustee
under the EFCH 2037 Notes due 2037 and the PCRBs; (d) LDTC, as
Indenture Trustee under the TCEH Unsecured Notes; (e) Holt Texas
LTD, d/b/a Holt Cat; (f) ADA Carbon Solutions (Red River); and (g)
Wilmington Savings, as Indenture Trustee under the TCEH Second Lien
Notes. The TCEH Committee retained Morrison & Foerster LLP as
counsel; Polsinelli PC as co-counsel and conflicts counsel; Lazard
Freres & Co. LLC as investment banker; FTI Consulting, Inc., as
financial advisor; and Charles River Associates as an energy
consultant.
On Oct. 27, 2014, the U.S. Trustee appointed the Official Committee
of Unsecured Creditors representing the interests of the unsecured
creditors for EFH, EFIH, EFIH Finance, and EECI, Inc. The EFH/EFIH
Committee is composed of (a) American Stock Transfer & Trust
Company, LLC; (b) Brown & Zhou, LLC c/o Belleair Aviation, LLC; (c)
Peter Tinkham; (d) Shirley Fenicle, as successor-in-interest to the
Estate of George Fenicle; and (e) David William Fahy. The EFH/EFIH
Committee retained Montgomery, McCracken, Walker & Rhodes, LLP, as
co-counsel and conflicts counsel; AlixPartners, LLP, as
restructuring advisor; Sullivan & Cromwell LLC as counsel;
Guggenheim Securities as investment banker; and Kurtzman Carson
Consultants LLC as noticing agent for both the TCEH Committee and
the EFH/EFIH Committee.
Given the size and complexity of the Chapter 11 Cases, the U.S.
Trustee proposed, and the Debtors and the TCEH Committee agreed, to
recommend that the Bankruptcy Court appoint a committee to, among
other things, review and report as appropriate on fee applications
and statements submitted by the professionals paid for by the
Debtors' Estates. The Fee Committee is comprised of four members:
(a) one member appointed by and representative of the Debtors
(Cecily Gooch, Vice President and Special Counsel for
Restructuring, Energy Future Holdings); (b) one member appointed by
and representative of the TCEH Creditors' Committee (Peter Kravitz,
Principal and General Counsel, Province Capital); (c) one member
appointed by and representative of the U.S. Trustee (Richard L.
Schepacarter, Trial Attorney, Office of the United States Trustee);
and (d) one independent member (Richard Gitlin, of Gitlin and
Company, LLC). The Fee Committee retained Godfrey & Kahn, S.C., as
counsel; and Phillips, Goldman & Spence, P.A., as co-counsel.
On Aug. 29, 2016, Judge Sontchi confirmed the Chapter 11 exit Plans
of two of Energy Future Holdings Corp.'s subsidiaries, power
generator Luminant and retail electricity provider TXU Energy Inc.
(the "T-Side Debtors"). The Plan became effective on Oct. 3, 2016.
On Aug. 20, 2017, Sempra Energy (NYSE:SRE) announced an agreement
to acquire Energy Future Holdings, the indirect owner of 80 percent
of Oncor Electric Delivery Company, LLC, operator of the largest
electric transmission and distribution system in Texas. Under the
agreement, Sempra Energy will pay approximately $9.45 billion in
cash to acquire Energy Future and its ownership in Oncor, while
taking a major step forward in resolving Energy Future's
long-running bankruptcy case. The enterprise value of the
transaction is approximately $18.8 billion, including the
assumption of Oncor's debt.
On Nov. 3, 2017, the Bankruptcy Court entered an order closing the
Chapter 11 cases of 40 affiliate debtors. The claims asserted
against, and interests asserted in, the Closing Cases are
transferred to the lead case of Texas Competitive Electric Holdings
Company LLC, Case No. 14-10978. A list of the Closing Cases is
available for free at:
http://bankrupt.com/misc/EnergyFuture_decreeclosing40.pdf
EXCO RESOURCES: Texas Court Reinstates Basic Energy Appeal
----------------------------------------------------------
The Court of Appeals of Texas reinstates the appeals case captioned
BASIC ENERGY SERVICES, L.P., Appellant, v. EXCO RESOURCES, INC.,
EXCO SERVICES, INC., EXCO OPERATING COMPANY, L.P., EXCO OPERATING
COMPANY, L.P. FORMERLY KNOWN AS EXCO PARTNERS OPERATING
PARTNERSHIP, L.P., EXCO OPERATING COMPANY, L.P. DOING BUSINESS AS
EXCO PARTNERS OPERATING PTSH, L.P., SUPERIOR ENERGY SERVICES,
L.L.C., SUPERIOR ENERGY SERVICES, INC., WARRIOR ENERGY SERVICES
CORPORATION, TEXAS CES, INC., HALLIBURTON ENERGY SERVICES, INC.,
CHILDRESS FISHING & RENTAL SERVICES, INC., WEATHERFORD U.S., L.P.,
BENOIT MACHINE, INC., SMITH INTERNATIONAL, INC., AND THOMAS ENERGY
SERVICES, LLC, Appellees, No. 05-15-00667-CV (Tex. App.).
On July 25, 2018, Appellees filed their unopposed motion to
reinstate the appeal, in which they informed the Court that on July
23, 2018, the bankruptcy court entered an order lifting the
automatic stay pertaining to appellee EXCO Resources, Inc. and
certain of its subsidiaries and affiliates and this case.
The Court grants the Appellees motion to reinstate and orders
Appellant to file its motion for rehearing, if any.
A copy of the Court's Order dated July 30, 2018 is available at
https://bit.ly/2MXK9PG from Leagle.com.
Michael K. Hurst -- mhurst@lynnllp.com -- Marvin C. Moos --
mmoos@hrmlawyers.com -- for Basic Energy Services, L.P.,
Appellant.
Gregory R. Ave -- greg.ave@wbclawfirm.com --for Weatherford U.S.,
L.P., EXCO Resources, Inc., et al. and Warrior Energy Services,
Corp., et al., Appellees.
Jerry Joe Knauff, Jr. , for Benoit Machine, Inc., Appellee.
Peter Scaff -- pscaff@bradley.com -- Audrey Mola Momanaee
Chatrodi, for Thomas Energy Services, LLC, et al., Appellee.
Greg K. Winslett, Michael Feiler, for Childress Fishing & Rental
Services, Inc., Appellee.
W. Bradford Hill, Jr., Kevin B. Finkel, for Halliburton Energy
Services, Inc., Appellee.
About EXCO Resources
EXCO Resources, Inc. (otc pink:XCOO) --
http://www.excoresources.com/-- is an oil and natural gas
exploration, exploitation, acquisition, development and production
company headquartered in Dallas, Texas, with principal operations
in Texas, North Louisiana and the Appalachia region. EXCO's
headquarters are located at 12377 Merit Drive, Suite 1700, Dallas,
TX 75251.
EXCO Resources, Inc., and 14 of its affiliates sought Chapter 11
protection (Bankr. S.D. Tex. Lead Case No. 18-30155) on Jan. 15,
2018. EXCO disclosed total assets of $829.1 million and total debt
of $1.355 billion as of Sept. 30, 2017.
The Debtors' cases have been assigned to the Honorable Marvin
Isgur.
The Debtors tapped Gardere Wynee Sewell LLP, and Kirkland & Ellis
LLP, as bankruptcy counsel; PJT Partners LP as financial advisor;
Alvarez & Marsal North America, LLC, as restructuring advisor; and
Epiq Bankruptcy Solutions, LLC, as claims agent.
An official committee of unsecured creditors has been appointed in
the case. The Committee is represented by lawyers at Jackson
Walker LLP and Brown Rudnick LLP. Intrepid Partners LLC has been
tapped as investment banker and Jefferies LLC as co-investment
banker to the Committee.
FAIRBANKS COMPANY: FAC Rep Taps Scroggins as Local Counsel
----------------------------------------------------------
Lawrence Fitzpatrick, the proposed legal representative for future
asbestos claimants of The Fairbanks Company, seeks approval from
the U.S. Bankruptcy Court for the Northern District of Georgia to
hire Scroggins & Williamson, P.C.
The firm will serve as local counsel for Mr. Fitzpatrick in
connection with the Debtor's Chapter 11 case.
The firm's hourly rates range from $405 to $485 for attorneys and
from $75 to $150 for paralegals.
J. Robert Williamson, Esq., a member of Scroggins & Williamson,
disclosed in a court filing that his firm is "disinterested" as
defined in section 101(14) of the Bankruptcy Code.
The firm can be reached through:
J. Robert Williamson, Esq.
Matthew W. Levin, Esq.
Scroggins & Williamson, P.C.
4401 Northside Parkway, Suite 450
Atlanta, GA 30327
Tel: (404) 893-3880
Fax: (404) 893-3886
E-mail: rwilliamson@swlawfirm.com
E-mail: mlevin@swlawfirm.com
About The Fairbanks Company
Incorporated in 1891, The Fairbanks Company --
http://www.fairbankscasters.com/-- is a Georgia corporation that
manufactures customized material handling equipment in its more
than 200,000-square-foot manufacturing and warehousing facility
located in Rome, Georgia.
The Fairbanks Company sought protection under Chapter 11 of the
Bankruptcy Code (Bankr. N.D. Ga. Case No. 18-41768) on July 31,
2018. In the petition signed by Robert P. Lahre, chief executive
officer, the Debtor estimated assets of $1 million to $10 million
and liabilities of $100,000 to $500,000. Judge Paul W. Bonapfel
presides over the case. The Debtor tapped Reed Smith LLP as its
bankruptcy counsel, and Ogier, Rothschild & Rosenfeld, PC, as its
local counsel.
FAIRBANKS COMPANY: FAC Rep Taps Young Conaway as Legal Counsel
--------------------------------------------------------------
The proposed legal representative for future asbestos claimants of
The Fairbanks Company seeks approval from the U.S. Bankruptcy Court
for the Northern District of Georgia to hire legal counsel.
Lawrence Fitzpatrick proposes to employ Young Conaway Stargatt &
Taylor, LLP to advise him regarding his duties under the Bankruptcy
Code; represent him in the negotiation and formulation of a plan of
reorganization for the Debtor; and provide other legal services
related to the Debtor's Chapter 11 case.
The firm will charge these hourly rates:
Edwin Harron Partner $845
Sara Beth A.R. Kohut Counsel $565
Jordan Sazant Associate $300
Casey Cathcart Paralegal $255
Edwin Harron, Esq., a partner at Young Conaway, disclosed in a
court filing that his firm is a "disinterested person" as defined
in section 101(14) of the Bankruptcy Code.
Young Conaway can be reached through:
Edwin J. Harron, Esq.
Young Conaway Stargatt & Taylor, LLP
Rodney Square
1000 North King Street
Wilmington, DE 19801
Phone: (302) 571-6600 / (302) 571-6703
Fax: (302) 576-3298
Email: eharron@ycst.com
About The Fairbanks Company
Incorporated in 1891, The Fairbanks Company --
http://www.fairbankscasters.com/-- is a Georgia corporation that
manufactures customized material handling equipment in its more
than 200,000-square-foot manufacturing and warehousing facility
located in Rome, Georgia.
The Fairbanks Company sought protection under Chapter 11 of the
Bankruptcy Code (Bankr. N.D. Ga. Case No. 18-41768) on July 31,
2018. In the petition signed by Robert P. Lahre, chief executive
officer, the Debtor estimated assets of $1 million to $10 million
and liabilities of $100,000 to $500,000. Judge Paul W. Bonapfel
presides over the case. The Debtor tapped Reed Smith LLP as its
bankruptcy counsel, and Ogier, Rothschild & Rosenfeld, PC as its
local counsel.
FBI WIND DOWN: HHG Claims Fall Outside Arbitration Provision
------------------------------------------------------------
Defendant-Appellants in the case captioned FBI WIND DOWN, INC.
LIQUIDATING TRUST, by and through Alan D. Halperin, as Liquidating
Trustee, v. HERITAGE HOME GROUP, LLC, f/k/a FBN Acquisiton
Holdings, LLC; KPS CAPITAL PARTNERS, LP; KPS SPECIAL SITUATIONS
FUND III LP; KPS SPECIAL SITUATIONS FUND III (A), LP; KPS SPECIAL
SITUATIONS FUND III SUPPLEMENTAL, LP; KPS SPECIAL SITUATIONS FUND
III (SUPPLEMENTAL-AIV), LP; KPS OFFSHORE INVESTORS, LTD.,
Appellants, No. 17-2315 (3rd Cir.) seek review of the District
Court's order affirming an order of the Bankruptcy Court
determining the claims to fall outside the scope of the relevant
arbitration provision. Upon deliberation, the U.S. Court of
Appeals, Third Circuit affirms the order of the district court.
The entity now known as Plaintiff-Appellant FBI Wind Down, Inc.
entered bankruptcy proceedings under chapter 11. Under an asset
purchase agreement dated October 2, 2013, FBI Wind Down sold
substantially all of its assets to Heritage Home Group. This
agreement allowed FBI Wind Down to retain its "cash and cash
equivalents," due to both income and liabilities that would be
incurred before the actual sale but would not be recognized by the
cash management systems of the assets until after the sale closed.
To account for this, the Agreement, as amended by Amendment No. 2,
established an adjustment mechanism to calculate the post-closing
totals such that the aggregate purchase price would remain fixed at
$280,000,000. Amendment No. 2 also established an adjustment
mechanism to allow for post-closing calculation of accounts payable
obligations to maintain that fixed price.
The parties agree that the terms of the arbitration provisions in
Amendment No. 2 are unambiguous, but they disagree what exactly
their plain meaning is. Because the Agreement and Amendment No. 2
express a clear intent to limit arbitration to disputes about
accounting items, we will affirm the District Court.
On its face, the arbitration provision of the Agreement is limited
by its application to "disputed items" versus "disputes." The
District Court, looking at the Bankruptcy Court's decision,
determined that "disputed items" referred to accounting
calculations. The Bankruptcy Court recognized that "because 'item'
is a term of art in accounting, 'any disputed item,' as used in the
Arbtiration Clause, was a limiting term that restricted the scope
of the Arbitration Clause to disputes over `accounting
items.'"Reviewing this conclusion de novo, it is correct. It flows
from the clear terms of the Agreement, specifically Amendment No.
2, and from the intent expressed by those terms.
Bringing all disputes, including threshold issues of contract
interpretation, within the scope of the arbitration provisions
would have been as simple as agreeing to arbitrate "disputes,"
rather than "disputed items." Heritage Home Group argues that the
plain meaning of "items" requires the inclusion of matters of
contract interpretation. This would essentially nullify Section
11.8 of the Agreement, which requires that "any and all claims,
actions, causes of action, suits, and proceedings relating to this
agreement or the other agreements contemplated herein shall be
filed and maintained only in the Bankrutpcy Court." Because giving
the term Heritage Home Group's proposed plain meaning would render
part of the Agreement superfluous, we adopt the meaning that gives
all the terms of the contract their full effect. This term
understands "disputed item" to exclude threshold matters of
contract interpretation, which may be resolved by the courts in the
first instance under the Agreement and Amendment No. 2.
A copy of the Court's Opinion dated July 27, 2018 is available at
https://bit.ly/2MYgiXB from Leagle.com.
About Furniture Brands
Furniture Brands International (NYSE:FBN) --
http://www.furniturebrands.com-- engaged in the designing,
manufacturing, sourcing and retailing home furnishings. Furniture
Brands markets products through a wide range of channels, including
company owned Thomasville retail stores and through interior
designers, multi-line/ independent retailers and mass merchant
stores. Its brands include Thomasville, Broyhill, Lane, Drexel
Heritage, Henredon, Pearson, Hickory Chair, Lane Venture,
Maitland-Smith and LaBarge.
The balance sheet at June 29, 2013, showed $546.73 million in total
assets against $550.13 million in total liabilities.
On Sept. 9, 2013, Furniture Brands International, Inc. and 18
affiliated companies sought Chapter 11 protection (Bankr. D. Del.
Lead Case No. 13-12329).
Attorneys at Paul Hastings LLP and Young Conaway Stargatt & Taylor,
LLP, serve as counsel to the Debtors. Alvarez and Marsal North
America, LLC, is the restructuring advisors. Miller Buckfire &
Co., LLC is the investment Banker. Epiq Systems Inc. dba Epiq
Bankruptcy Solutions is the claims and notice agent.
The official creditor's committee is comprised of the Pension
Benefit Guaranty Corp., Milberg Factors Inc. and five suppliers.
The Committee tapped Blank Rome LLP as co-counsel, Hahn & Hessen
LLP as lead counsel, BDO Consulting as financial advisor, and
Houlihan Lokey Capital, Inc., as investment banker.
In November 2013, Furniture Brands won bankruptcy court approval to
sell the business to KPS Capital Partners LP for $280 million.
Private-equity investor KPS formed a new company named Heritage
Home Group LLC to operate the business. Furniture Brands changed
its name to FBI Wind Down, Inc., following the sale.
The Debtors on July 14, 2014, won confirmation of their Second
Amended Joint Plan of Liquidation as filed on July 9, 2014.
on Aug. 1, 2014, the Plan became effective and, pursuant to the
Confirmation Order, the FBI Wind Down, Inc. Liquidating Trust was
established and Alan D. Halperin was appointed as Liquidating
Trustee of the Liquidating Trust.
FLORIDA PAVEMENT: Seeks Authority on Interim Use of Cash Collateral
-------------------------------------------------------------------
Florida Pavement Coatings, and South Florida Pavement Coatings,
Inc., request the U.S. Bankruptcy Court for the Middle District of
Florida for authority to use cash collateral immediately to pay
operating expenses necessary to continue the operation of their
businesses.
The Debtors intend to use cash collateral generally and for
purposes which include the following:
(a) care, maintenance, and preservation of the Debtors'
assets;
(b) payment of necessary payroll, rent, suppliers, utilities,
and other business expenses;
(c) other payments necessary to sustain continued business
operations; and
(d) costs of administration in these Chapter 11 cases.
At the initial hearing on the Debtors' Motion, they will ask the
Court to allow them to use approximately $160,000 in cash
collateral or such other amount as is necessary to avoid immediate
and irreparable harm on an interim basis pending entry of a final
order on the Motion.
Prior to the Petition Date, CenterState Bank, N.A. loaned the
Debtors approximately $4.4 million, which remains outstanding.
Portions of the obligations to CenterState are secured by a
mortgage on certain real property, and another portion is secured
by
security interests in personal property, including inventory and
accounts receivable.
In addition, FPC owes the aggregate amount of approximately
$275,000 to Accord Business Funding, LLC; Forwarding Financing,
LLC; On Deck Capital, Inc.; and Radium2 Capital, Inc., which may
assert liens or interests in the Debtors' accounts receivable. Such
liens or interests are junior to those of CenterState, and
therefore the foregoing creditors are unsecured creditors not
entitled to adequate protection.
In exchange for the Debtors' ability to use cash collateral in the
operation of their businesses, the Debtors propose to provide the
Lenders with: (i) replacement liens identical in extent, validity
and priority as such liens existed on the Petition Date; and (ii) a
biweekly basis profit and loss statements on a cash basis to
counsel for CenterState.
A full-text copy of the Debtors' Cash Collateral Motion is
available at
http://bankrupt.com/misc/flmb18-06062-9.pdf
About Florida Pavement Coatings
Florida Pavement Coatings, Inc., is a manufacturer of asphalt felts
and coatings headquartered in Tampa, Florida. Affiliate South
Florida Pavement Coatings, Inc., is in the lacquers, varnishes,
enamels, and other coatings business.
Florida Pavement Coatings, and South Florida Pavement Coatings
sought protection under Chapter 11 of the Bankruptcy Code (Bankr.
M.D. Fla. Lead Case No. 18-6062) on July 23, 2018. In the
petitions signed by Gregory Polk, president, each Debtor estimated
assets of $1 million to $10 million and liabilities of $1 million
to $10 million. Stichter, Riedel, Blain & Postler, P.A., is the
Debtors' legal counsel.
FRIENDLY HOME: U.S. Trustee Unable to Appoint Committee
-------------------------------------------------------
The Office of the U.S. Trustee on August 17 disclosed in a court
filing that no official committee of unsecured creditors has been
appointed in the Chapter 11 case of Friendly Home Rentals, LLC.
About Friendly Home Rentals
Friendly Home Rentals, LLC is a privately held company in
Tallassee, Alabama, operating in the household appliance rental
industry.
Friendly Home Rentals, LLC, a/k/a Friendly Furniture, a/k/a
Friendly Rentals filed a Chapter 11 petition (Bankr. M.D. Ala. Case
No. 18-31855) on July 3, 2018. In the petition signed by Bobby Ray
Cagle, Jr., president, the Debtor estimated $50,000 to $100,000 in
assets and $1 million to $10 million in liabilities. The Debtor is
represented by Michael A. Fritz, Sr., Esq. at Fritz Law Firm.
GEORGIA CENTRAL UNIVERSITY: Taps Stephen Law Firm as Legal Counsel
------------------------------------------------------------------
Georgia Central University seeks approval from the U.S. Bankruptcy
Court for the Northern District of Georgia to hire The Stephen Law
Firm, LC as its legal counsel.
The firm will assist the Debtor in the preparation of a plan of
reorganization; represent the Debtor in negotiations with its
creditors; assist in the evaluation and disposition of its assets;
and provide other legal services related to its Chapter 11 case.
Stephen Law Firm charges an hourly fee of $400 for services
provided by its attorneys. Paralegals charge $150 per hour.
The firm can be reached through:
Kerry Hand, Esq.
The Stephen Law Firm, LC
4411 Suwanee Dam Road, Suite 820
Suwanee, GA 30024
Phone: 770-538-1991
Fax: 770-538-1983
Email: kerry@theslfirm.com
About Georgia Central University
Georgia Central University provides education in theology,
divinity, religious education, business, music, acupuncture and
oriental medicine, and divinity. It has been authorized by the
State of Georgia Nonpublic Postsecondary Education Commission
(GNPEC) since 2003.
Georgia Central University sought protection under Chapter 11 of
the Bankruptcy Code (Bankr. N.D. Ga. Case No. 18-63208) on Aug. 7,
2018. In the petition signed by Paul C. Kim, president, the Debtor
estimated assets of $1 million to $10 million and liabilities of $1
million to $10 million.
GREAT ATLANTIC GRAPHICS: Proposed Sale of Assets to ALCOM Approved
------------------------------------------------------------------
Judge Ashley M. Chan of the U.S. Bankruptcy Court for the Eastern
District of Pennsylvania authorized Great Atlantic Graphics, Inc.'s
sale of assets to ALCOM or its assignee, free and clear of any and
all liens, encumbrances, interests and claims.
The consummation of the transaction contemplated by the Agreement
is conditioned on the Buyer's acquisition of a Heidelberg XLl05 Six
Color Press, S/N FS000667; Bobst SP Evoline 102E, S/N 0539 028 02;
and Heidelberg XLIOS-6+LX, S/N FS000556 from DW Leasing Associates,
L.P. in an amount sufficient to pay, and the payment on the closing
date by the Buyer to, the secured lender, Signature Financial, LLC,
all amounts owed on the Signature Equipment, which according to
Signature Financial, will not exceed $1,072,091 as of Aug. 6, 20l8,
which figure is inclusive of all attorney's fees and costs, plus
per diem interest of $6l7 for each day thereafter.
The stay provisions set forth in Federal Rule of Bankruptcy
Procedure 6004(h) are waived and closing may occur immediately.
About Great Atlantic Graphics
Great Atlantic Graphics, Inc., is a graphic communications company
offering design, prepress, offset printing, digital printing,
finishing, mailing, fulfillment, DAM, and web solutions.
Headquartered in Lansdale, Pennsylvania, Great Atlantic serves the
pharmaceutical, manufacturing, healthcare, and education
industries.
Great Atlantic filed a Chapter 11 petition (Bankr. E.D. Pa. Case
No. 18-14384) on June 29, 2018. In the petition signed by
Frederick Duffy, president, the Debtor estimated $500,000 to $1
million in assets and $1 million to $10 million in liabilities.
The case is assigned to Judge Ashely M. Chan. The Debtor is
represented by Ciardi Ciardi & Astin, P.C.
GREAT FOOD: Judge Signs Seventh Cash Collateral Interim Order
-------------------------------------------------------------
The Hon. Carl L. Bucki of the U.S. Bankruptcy Court for the Western
District of New York has signed a seventh interim order authorizing
Great Food Great Fun, LLC, and Professional Hospitality LLC to use
the cash collateral of secured creditors U.S. Foods, Inc./U.S.
Foodservice, Inc., Cosima Corporation, the Internal Revenue
Service, the New York State Department of Taxation and Finance,
Snap Advances, LLC, GU Capital, Tango Capital and Northwest Savings
Bank.
Each of the Debtors is authorized and permitted to use cash
collateral through October 31, 2018 in accordance with those pro
forma income and expense projections within a 5% variance.
The Secured Creditors are granted rollover replacement liens in
post-petition assets of the Debtors of the same relative priority
and on the same types and kinds of collateral as they possessed
pre-petition, to the extent of cash collateral actually used and
not paid down by the Debtors, effective as of the date of filing of
this case.
As additional adequate protection to the Secured Creditors, debtor
Great Food Great Fun will make these adequate protection payments:
A. Cosima -- as adequate protection to GFGF landlord Cosima,
current rent will be paid at the rate of $1,500 per week.
Additionally, GFGF will make payments of $1,000.69 per month toward
back rental amounts owed by GFGF;
B. U.S. Foods -- all current purchase to U.S. Foods, all
current purchases will be paid COD upon delivery. Additionally,
GFGF will continue to pay $250 per week toward arrears owed; and
C. IRS -- as adequate protection to partially secured claims
of the IRS, GFGF will continue to make adequate protection payments
to the IRS at the rate of $750 per week.
As additional adequate protection to the Secured Creditors, debtor
Professional Hospitality will make these adequate protection
payments, prior to the time of its seasonal closure on or about
September 30, 2018:
A. U.S. Foods -- all current purchases will be paid COD upon
delivery. Additionally, PH will continue to make payments of
$2,500 per week toward arrears owed through September 15, 2018;
B. NYS Tax – PH will continue to make payments at a rate of
$1,000 per week through September 15, 2018.
A further hearing on the Debtors' use of cash collateral after
October 31, 2018, will be held on October 29, 2018, at 10:00 a.m.
About Great Food Great Fun and
Professional Hospitality
Great Food Great Fun LLC is a New York corporation which is doing
business as "Wing City Grille" and which operates a restaurant in
Fredonia, New York. Professional Hospitality, LLC, is a New York
corporation which is doing business as "Village Casino Restaurant"
and which operates a restaurant and banquet facilities on the
waterfront in Bemus Point, New York. The Village Casino Restaurant
is seasonal, generally operating only between May 1 and Sept. 30
each year. Great Food and Professional Hospitality are single
member limited liability corporations owned by Andrew C. Carlson,
an individual who is not in bankruptcy.
Great Food Great Fun, LLC, and Professional Hospitality, LLC, filed
Chapter 11 petitions (Bankr. W.D.N.Y. Case Nos. 17-11557 and
17-11558, respectively) on July 24, 2017.
Judge Carl L. Bucki presides over the Debtors' jointly administered
cases.
Andreozzi Bluestein LLP, serves as counsel to the Debtors.
HATU WINDS: $3.5M Sale of Property to Salt Lake County Approved
---------------------------------------------------------------
Judge Joel T. Marker of the U.S. Bankruptcy Court for the District
of Utah authorized Hatu Winds Land Co., LC ("HWCL")'s sale of the
real property located at 1820 West Printers Row (2300 South), West
Valley City, Salt Lake County, Utah, tax parcel nos. 15-22-127-006
and 15-22-127-009, to Salt Lake County for $3.5 million.
The sale is free and clear of all the Interests.
The Debtor is authorized to pay all Claims as set forth in
paragraphs 10, 11, and 12 of the Motion. With respect to the claim
of the SBA, the Debtor and the SBA have agreed that the claim of
the SBA may be paid at the closing of the Sale, so long as the SBA
shall: (a) release to the Debtor 50% of the US Trustee quarterly
fee which results by paying the claim of the SBA at the closing of
the Sale; (b) release to the estate the amount of $86,500; (c)
release and waive any requirement for the Debtor to confirm a plan
of reorganization by any deadline; and (d) otherwise give full
force and effect to the other terms of the agreement between the
Debtor and the SBA. The amount of release of funds to the Debtor
for the US Trustee quarterly fee is $4,713. The Debtor and the SBA
have both agreed to these terms. The Debtor is authorized to pay
the claim of the SBA according to these terms.
As provided by Bankruptcy Rule 6004(h), the Order will not be
stayed for 14 days after entry and will be effective immediately
upon entry.
A copy of the Agreement attached to the Order is available for free
at:
http://bankrupt.com/misc/Hatu_Winds_87_Order.pdf
The Debtor is entitled to continue to market the property and
obtain higher and better offers. Any higher and better offer will
include first a repayment of the Buyer's actual out of pocket costs
for title work, inspection fees, and other expenses incurred in
carrying out its Due Diligence.
The Buyer will also have the opportunity to match any higher and
better offer, or withdraw. In the event of withdrawal, the Buyer
receives back the earnest money. In the event of an auction, the
Buyer is deemed an authorized bidder upon paying the earnest
money.
About Hatu Winds Land
Hatu Winds Land Co., LC, based in Ogden, Utah, sought Chapter 11
protection (Bankr. D. Utah Case No. 17-20136) on Jan. 9, 2017. In
the petition signed by Elliot Moses, manager, the Debtor estimated
$1 million to $10 million in both assets and liabilities. The Hon.
Joel T. Marker presides over the case. James W. Anderson, Esq., at
Clyde Snow & Sessions, serves as bankruptcy counsel to the Debtor.
HELLO NEWMAN: Trustee Selling New York Property to Lavian for $7.3M
-------------------------------------------------------------------
Judge Shelley C. Chapman of the U.S. Bankruptcy Court for the
Southern District of New York has entered an order scheduling
hearing to consider the bidding procedures of Albert Togut, the
Chapter 11 trustee of Hello Newman, Inc., in connection with the
sale of the real property located at 113 East 2nd Street, New York,
New York to Michael Lavian for $7.3 million, subject to overbid.
The Debtor purchased and obtained title to the Real Property on
Oct. 28, 1998. It is subject to recorded liens and encumbrances,
which secure claims that now total approximately $6 million. It
does not generate any income, and the Debtor does not have the
ability to address or pay any of the Secured Claims and the other
liabilities that have been asserted against it absent a sale of the
Real Property by the Trustee.
Pursuant to the Court's Order Granting Judgment, the Trustee took
possession of the Real Property, and there are no tenants or
occupants in the Real Property.
The salient terms of the APA are:
a. Purchase Price: $7.3 million
b. Deposit: $730,000 has been delivered to the Trustee
c. Closing Date: A closing to be held on the date that is 14
business days after the date on which the Sale Order becomes a
final, non-appealable order, unless the Trustee and the Purchaser
agree to close sooner. The Trustee will have the right to adjourn
the closing date on one or more occasions for up to 60 days in the
aggregate.
d. No Reliance on Warranties or Representations: The Real
Property will be conveyed by the Trustee to, and accepted by the
Purchaser "as is , where is," "with faults," "without any express
or implied warranty or representation of any kind," except as
expressly provided in the Purchase Agreement and the Sale Order.
e. Expense Reimbursement: $10,000
The salient terms of the Bidding Procedures are:
a. Bid Deadline: All bids for the Real Property must be
received by the Trustee by 5:00 p.m. (ET) on the Bid Deadline.
b. Initial Bid: $50,000 greater than the Purchaser's bid,
c. Deposit: 10% of the proposed purchase price
d. Auction: If a Qualified Bid or Bids for the Real Property
is received by the Bid Deadline, the Auction will be held
commencing at 1:00 p.m. (ET) on Sept. 17, 2018 and continued, if
the Trustee deems necessary,
e. Bid Increments: $50,000
f. Objection Deadline: Seven days before the Sale Hearing
A hearing on the Motion is set for Aug. 14, 2018 at 2:00 p.m. The
objection deadline is Aug. 10, 2018 at 4:00 p.m.
About Hello Newman
Hello Newman Inc. sought protection under Chapter 11 of the
Bankruptcy Code (Bankr. S.D.N.Y. Case No. 16-12910) on Oct. 17,
2016. In the petition signed by Philip Hartman, secretary, the
Debtor disclosed $14 million in assets and $4.69 million in
liabilities.
The case is assigned to Judge Shelley C. Chapman.
The Debtor hired Rosenberg, Musso & Weiner, LLP, as its legal
counsel.
The Office of the U.S. Trustee appointed Albert Togut as Chapter 11
trustee for the Debtor. The Chapter 11 trustee tapped his own
firm, Togut, Segal & Segal LLP, as counsel. The Trustee also
tapped Warburg Realty as real estate broker and Andrew W. Plotzker
as accountant.
No committee of unsecured creditors has been appointed in the case.
HENDERSON MECHANlCAL: Allowed to Use IRS Cash Collateral
--------------------------------------------------------
The Hon. Ernest M. Robles of the U.S. Bankruptcy Court for the
Central District of California has entered an order approving
Henderson Mechanical Systems, Inc.'s stipulation with the United
States of America, on behalf of its agency the Internal Revenue
Service for the continued interim use of cash collateral.
The Debtor may use the IRS' cash collateral to and including the
continued hearing date of August 20, 2018, at 10:00 a.m. on the
same terms and conditions previously ordered.
The Debtor must tender, and the IRS receive the Debtor's August
2018 adequate protection payment of $1,000 in the form of a
cashier's check or money order in their office, no later than the
close of business on Aug. 9. If at the close of business on Aug.
9, the IRS does not receive the Debtor's August 2018 adequate
protection payment, on declaration so stating, the IRS may lodge an
order dismissing or converting the case as the Court determines and
no hearing will be held on August 20, 2018.
A copy of the Order is available at
http://bankrupt.com/misc/cacb18-13960-60.pdf
About Henderson Mechanical Systems
Henderson Mechanical Systems, Inc., doing business as Henderson
Mechanical Services, filed a Chapter 11 petition (Bankr. C.D. Cal.
Case No. 18-13960) on April 9, 2018. In the petition signed by
James Lee, president, the Debtor estimated at least $50,000 in
assets and $500,001 to $1 million in liabilities. Kevin Tang,
Esq., at Tang & Associates, serves as counsel to the Debtor.
HN1 LLC: U.S. Trustee Unable to Appoint Committee
-------------------------------------------------
No official committee of unsecured creditors has been appointed in
the Chapter 11 case of HN1, LLC as of August 17, according to a
court docket.
About HN1 LLC
HN1 LLC sought protection under Chapter 11 of the Bankruptcy Code
(Bankr. S.D. Fla. Case No. 18-18610) on July 16, 2018. In the
petition signed by Abdul Mukatiy, authorized representative, the
Debtor estimated assets of less than $500,000 and liabilities of
less than $500,000. The Debtor tapped Joel M. Aresty P.A. as its
legal counsel.
HOPEWELL PROMOTIONS: IRS Seeks to Prohibit Cash Collateral Use
--------------------------------------------------------------
The United States of America, on behalf of its agency the Internal
Revenue Service, asks the U.S. Bankruptcy Court for the District of
Maryland to prohibit Hopewell Promotions, Inc., from using cash
collateral.
Prior to the Petition Date, the Internal Revenue Service, filed
notices of federal tax lien in Baltimore County, Maryland and
Worcester County, Maryland, for the Debtor's income (Form 1120) and
employment tax liabilities (Forms 940 and 941) for the years 2011
through 2015.
The federal tax liens identified on the NFTLs attach to all
property and rights to property whether real or personal belonging
the Debtor and the liens arise upon the date of assessment. The
liens attach to Debtor's cash and cash equivalents. The IRS has a
secured claim against the Debtor's cash collateral in the
approximate amount of $37,172.
Since the Petition Date, the Debtor has operated its business and
used cash collateral without the Court's approval or the consent of
the IRS, as required under 11 U.S.C. Sec. 363(c)(2).
The IRS does not consent to the Debtor's proposed use of cash
collateral and has not consented to the prior use of the cash
collateral described in the Motion. The IRS asserts that it is
entitled to adequate protection for its liens pursuant to Section
361.
Attorney for the United States of America:
Matthew P. Phelps, Esq.
Assistant U.S. Attorney
36 S. Charles Street, 4th Floor
Baltimore, Maryland 21201
Email: Matthew.phelps@usdoj.gov
About Hopewell Promotions
Hopewell Promotions, Inc., is a privately held company based in
Randallstown, Maryland, that operates jewelry stores. Hopewell
Promotions filed a Chapter 11 petition (Bankr. D. Md. Case No.
17-27167) on Dec. 26, 2017. In the petition signed by Harvey
Bernstein, its president, the Debtor estimated $100,000 to $500,000
in assets and $1 million to $10 million in liabilities. Ronald J.
Drescher, Esq., at Drescher & Associates, P.A., serves as
bankruptcy counsel.
HORIZONTAL RENTALS: Case Summary & 20 Largest Unsecured Creditors
-----------------------------------------------------------------
Debtor: Horizontal Rentals, Inc.
1111 N. Austin
Seguin, TX 78155
Business Description: Horizontal Rentals, Inc. offers oil field
equipment for rent for the oil and gas
industry. The Company offers eliminator
separation system, standard skim system,
strategic Hydrodynamic separator, gas
management program, mud mixing units,
light towers, fire box systems and hydro
washers. Visit
http://horizontalrentalsinc.comfor more
information.
Chapter 11 Petition Date: August 20, 2018
Court: United States Bankruptcy Court
Western District of Texas (San Antonio)
Case No.: 18-51972
Judge: Hon. Craig A. Gargotta
Debtor's Counsel: David T. Cain, Esq.
LAW OFFICE OF DAVID T. CAIN
8626 Tesoro Dr, Suite 811
San Antonio, TX 78217
Tel: (210) 308-0388
Fax: (210) 503-5033
Email: caindt@swbell.net
Estimated Assets: $0 to $50,000
Estimated Liabilities: $1 million to $10 million
The petition was signed by Brian Warncke, vice president.
A full-text copy of the petition containing, among other items, a
list of the Debtor's 20 largest unsecured creditors is available
for free at:
http://bankrupt.com/misc/txwb18-51972.pdf
HUNGRY HORSE: Court Junks Wagner Firm's 2nd Fee Application
-----------------------------------------------------------
Debtor Hungry Horse, LLC's counsel Ken Wagner Law, P.A filed a
second fee application asking to be reimbursed for amounts it paid
to two lawyers who worked as contract attorneys. The Debtor never
sought to employ the contract attorneys; they never disclosed their
compensation terms or disinterestedness; and their employment was
never approved by the Court. Having reviewed the application,
Bankruptcy Judge David T. Thuma denies the reimbursement request as
contrary to sections 327-330 and Rules 2014 and 2016.
The Wagner Firm filed a second fee application on April 12, 2018.
The Application sought approval of $103,095.50 of fees, $7,559.52
of taxes, and $9,706.03 of costs. Among the costs, there is a
$2,390.56 line item for "Cost Advance." It appears, although it is
never made clear in the Application or elsewhere, that this is
mostly what the Wagner Firm paid to Elizabeth Taylor, a partner in
Taylor & McCaleb, PA, and to Lorien House, a sole practitioner.
From what the Court can tell, the Wagner Firm paid Ms. Taylor about
$1,359.47, and Ms. House about $837.50.
Debtor never sought to employ Mss. Taylor or House pursuant to
section 327. The contract attorneys did not file Rule 2014/2016
disclosures. No employment orders were entered.
Here, the Wagner Firm asks that the amounts paid or owed to Mss.
Taylor and House be reimbursed by the estate. The request is denied
because the Court never approved of Debtor's employment of either
attorney. The Wagner Firm should pay the contract attorneys as
agreed, but cannot be reimbursed from the estate for the cost.
Ms. Taylor and Ms. House are attorneys; both did professional legal
work for the Debtor. The Wagner Firm should have advised them to
file employment applications and Rule 2014/2016 disclosures and to
get their employment approved by the Court. Because no such advice
was given, the Wagner Firm's request to treat the amounts paid to
Taylor and House as "cost advances" is denied.
The bankruptcy case is in re: HUNGRY HORSE, LLC, Debtor, Case No.
16-11222 t11 (Bankr. D.N.M.).
A copy of the Court's Opinion dated July 31, 2018 is available at
https://bit.ly/2MAEhPD from Leagle.com.
Hungry Horse, LLC, Debtor, represented by Michael Allison, The
Allison Law Firm, P.C., Robert Dennis -- rgorman@rdgormanlaw.com --
Gorman, Louis Puccini, Jr., Robert D. Gorman, P.A. & Daniel Andrew
White, Askew & Mazel, LLC.
United States Trustee, U.S. Trustee, represented by Leonard K.
Martinez-Metzgar, Office of the U.S. Trustee.
Michael T. Newell, Special Counsel, pro se.
Committee of Unsecured Creditors, Creditor Committee, represented
by James A. Askew -- jaskew@askewmazelfirm.com Askew & Mazel, LLC,
Edward Alexander Mazel -- emazel@askewmazelfirm.com -- Askew &
Mazel, LLC & Daniel Andrew White -- dwhite@askewmazelfirm.com --
Askew & Mazel, LLC.
Official Unsecured Creditors Committee of the Hungry Horse, LLC &
Unsecured Creditors' Committee, Creditor Committees, represented by
Daniel Andrew White, Askew & Mazel, LLC.
Headquartered in Hobbs, NM, Hungry Horse, LLC filed for Chapter 11
bankruptcy protection (Bankr. D. N.M. Case No. 16-11222) on May 17,
2016, listing its total assets at $5.62 million and total
liabilities at $5.47 million. The petition was signed by John
Norris, managing member.
HUNTER MILL: Trial Court Erred on Judgment Against Catjen
---------------------------------------------------------
In the case captioned CATJEN, LLC, v. HUNTER MILL WEST, L.C, Record
No. 171067 (Va.), Catjen, LLC appeals the decision of the Circuit
Court of Fairfax County reducing the amount due on a deed of trust
note and entering a confessed judgment for the reduced amount
without Catjen's agreement. Upon review of the case, the Supreme
Court of Virginia vacates the confessed judgment, reverses the
trial court's judgment on the amount due on the Note, and remands
the matter for further proceedings.
In its first assignment of error, Catjen argues that by modifying
and entering the confessed judgment based on the amount proffered
by HMW without allowing Catjen to challenge the amount, the trial
court failed to properly apply Code section 8.01-433. Catjen
insists that Code section 8.01-433 does not permit a trial court to
enter a modified confessed judgment over the objection of the party
seeking the judgment. The Court agrees.
In the present case, after granting HMW's motion to reconsider, the
trial court failed to place the matter on the trial docket and
proceed as if Catjen had filed an action at law on the Note. It
appears that this error was the result of a misconception by the
trial court that it could treat a motion to reduce a confessed
judgment differently from a motion to set aside a confessed
judgment. Regardless of why the trial court ruled in the manner it
did, the fact remains that its ruling was erroneous. Notably, Code
section 8.01-433 makes no distinction between a motion to set aside
a confessed judgment and a motion to reduce a confessed judgment.
In both instances, the statute requires the same result: that the
matter be set down for a full trial on the merits of the creditor's
claim. Accordingly, the trial court erred by failing to place the
present case on the docket for a trial on the merits.
Catjen next argues that the judgment entered by the trial court was
erroneous because it ignored the proceedings before the bankruptcy
court and its ruling was contrary to the express terms of the Note.
The record in this case certainly supports Catjen's assertion that
the trial court did not properly consider the bankruptcy court
proceedings, including the previous position that HMW took with
regard to the calculation of interest on the Note. However, the
trial court's failure to consider this evidence is the result of
its decision to proceed in a summary manner instead of proceeding
to a trial on the merits, as required by Code § 8.01-433. In other
words, the trial court's erroneous application of Code section
8.01-433 prevented these matters from being fully litigated.
Accordingly, as these matters can be addressed by the trial court
on remand, this issue is not ripe for a decision by the Court.
Catjen's final argument relates to the trial court's denial of its
motion for a nonsuit. Specifically, Catjen argues that the trial
court erred in denying its motion for nonsuit because the modified
confessed judgment had not been submitted to the trial court at the
time that it sought its nonsuit. However, at oral argument, Catjen
explained that this assignment of error was raised as an
alternative argument in the event it was unsuccessful with
assignments of error one and two. As the Court has already
determined that Catjen is entitled to relief under its first
assignment of error, this assignment of error is rendered moot.
A full-text copy of the Court's Decision dated July 26, 2018 is
available at https://bit.ly/2vS3mvP from Leagle.com.
MICHAEL WAYNE ROBINSON, (ESQ.) -- mwrobinson@Venable.com --
NICHOLAS MARTIN DEPALMA, (ESQ.) -- nmdepalma@Venable.com -- for
Appellant, CATJEN, LLC.
JOHN CHAPMAN PETERSEN, (ESQ.), DAVID LEE AMOS, (ESQ.), DAVID
ALEXANDER HUTCHISON, (ESQ.) -- dla@petersenfirm.com -- for
Appellee, HUNTER MILL WEST, L.C.
About Hunter Mill West
Vienna, Virginia-based Hunter Mill West, L.C., filed for Chapter 11
protection (Bankr. E.D. Va. Case No. 15-12305) on July 2, 2015.
The petition was signed by John M. Thoburn, managing member.
The Hon. Brian F. Kenney presides over the case. John T. Donelan,
Esq., at the Law Office of John T. Donelan represents the Debtor in
its restructuring effort.
The Debtor estimated assets and debts at $10 million to $50
million.
IMAGING3 INC: Alpha Capital, Brio Capital Win Summary Judgment Bid
------------------------------------------------------------------
District Judge Gregory H. Woods granted the Plaintiffs' motion for
summary judgment in the case captioned ALPHA CAPITAL ANSTALT and
BRIO CAPITAL MASTER FUND, LTD., Plaintiffs, v. IMAGING3, INC.,
Defendant, No. 1:17-cv-6966-GHW (S.D.N.Y.).
Defendant, Imaging3, Inc. has been through some hard times in
recent years--a 2012 bankruptcy, a charge of fraud by the U.S.
Securities and Exchange Commission in 2013, continuing "going
concern" qualifications in its financial statements through 2017.
Nonetheless, Plaintiffs, Alpha Capital Anstalt and Brio Capital
Master Fund, Ltd. invested a significant amount of additional
capital in the company between April 2015 and March 2017. But after
Imaging3 consummated a dilutive financing that Plaintiffs did not
approve, Alpha Capital and Brio Capital found their investments
trapped in a company that failed to honor its contractual
obligations: first by failing to honor Alpha Capital's demand to
exercise a warrant, and then by failing to pay its lenders' notes
when due. Alpha Capital and Brio Capital brought the case as a
result of Imaging3's repeated breaches. Because Imaging3 has
clearly violated the terms of its contracts by failing to honor the
terms of its warrant agreement and failing to pay Plaintiffs' notes
when due, Plaintiffs' motion for summary judgment is granted.
Thus, Alpha Capital is entitled to judgment against Imaging3 in the
following amounts: with respect to the Alpha Notes, $576,057.92,
plus 18% prejudgment interest calculated from August 31, 2017
through the date of judgment; and with respect to the Warrant,
$122,408.55, plus 9% prejudgment interest calculated from June 6,
2017 through the date of judgment. Brio Capital is entitled to
judgment against Imaging3 with respect to the Brio Capital Notes in
the amount of $576,057.92, plus 18% prejudgment interest calculated
from August 31, 2017 through the date of judgment.
A full-text copy of the Court's Memorandum Opinion and Order dated
July 26, 2018 is available at https://bit.ly/2N0NiP2 from
Leagle.com.
Alpha Capital Anstalt & Brio Capital Master Fund, Ltd., Plaintiffs,
represented by David Scott Hoffner, Hoffner PLLC.
Imaging3, Inc., Defendant, represented by Terrence P. Buckley,
Terrence P. Buckley.
About Imaging3
Headquartered in Burbank, California, Imaging3, Inc. (otcqb:IGNG)
-- http://www.imaging3.com/-- is a provider of advanced technology
medical imaging devices. The Company has developed a breakthrough
medical imaging device that produces 3D medical diagnostic images
of virtually any part of the human body in real-time. Because
these 3D images are instantly constructed in real-time, they can be
used for any current or new medical procedures in which multiple
frames of reference are required to perform medical procedures on
or in the human body. The company was founded in 1993.
Imaging3 sought Chapter 11 protection (Bankr. C.D. Cal. Case No.
12-41206) on Sept. 13, 2012.
Brian L. Davidoff, Esq., at Greenberg Glusker, in Los Angeles,
serves as counsel. The Debtor estimated assets of $500,001 to
$1,000,000 and liabilities of $10,000,001 to $50,000,000.
INTERVIEW INC: Ch. 7 Trustee to Auction Assets on Aug. 27
---------------------------------------------------------
Salvatore LaMonica, as the interim Chapter 7 of the assets of
Interview Inc. and its debtor-affiliates, will conduct a public
auction of the Debtors' assets on Aug. 27, 2018, at 11:00 a.m., at
the offices of CBIZ, 5 Bryant Park at 1065 Avenue of the Americas,
New York, New York.
Each bidder must submit an executed copy of the asset purchase
agreement and a $75,000 deposit by certified or official check
payable to the Chapter 7 trustee to participate in the public
auction.
A copy of the assets purchase agreement or any other information
about the Debtors' assets can be obtained by contacting the counsel
to the Chapter 7 trustee:
LaMonica Herbst & Maniscalco, LLP
Jacqulyn S. Loftin, Esq.
3305 Jerusalem Avenue
Wantagh, NY 11793
Tel: 516-826-6500
Fax: 516-826-0222
E-mail: jsl@lhmlawfirm.com
Interview Inc. operates as a publisher of magazines.
ITGA LLC: Voluntary Chapter 11 Case Summary
-------------------------------------------
Debtor: ITGA LLC
4747 East Eliot Road
16400 South 14th Avenue
Phoenix, AZ 85045
Business Description: ITGA LLC filed as a Single Asset Real
Estate (as defined in 11 U.S.C. Section
101 (51B)).
Chapter 11 Petition Date: August 20, 2018
Court: United States Bankruptcy Court
District of Arizona (Phoenix)
Case No.: 18-10070
Judge: Hon. Madeleine C. Wanslee
Debtor's Counsel: Edward T. Williams, Esq.
ARMSTRONG TEASDALE LLP
4643 South Ulster Street Suite 800
Denver, CO 80237
Tel: 720-200-0614
Email: ewilliams@armstrongteasdale.com
Estimated Assets: $1 million to $10 million
Estimated Liabilities: $1 million to $10 million
The petition was signed by Richard Breuinger, CEO & founder.
The Debtor failed to include in the petition a list of its 20
largest unsecured creditors.
A full-text copy of the petition is available for free at:
http://bankrupt.com/misc/azb18-10070.pdf
JLF 114 LIBERTY: Taps Paul Rachmuth as Bankruptcy Attorney
----------------------------------------------------------
JLF 114 Liberty, LLC seeks approval from the U.S. Bankruptcy Court
for the Southern District of New York to hire Paul Rachmuth, Esq.,
as its legal counsel.
Mr. Rachmuth will advise the Debtor regarding its duties under the
Bankruptcy Code and will provide other legal services related to
its Chapter 11 case.
The attorney charges an hourly fee of $525 for his services.
Paraprofessionals charge $150 per hour.
Mr. Rachmuth disclosed in a court filing that he is a
"disinterested person" as defined in section 101(14) of the
Bankruptcy Code.
Mr. Rachmuth maintains an office at:
Paul A. Rachmuth, Esq.
265 Sunrise Highway, Suite62
Rockville Centre, NY 11570
Telephone: (516) 330-0170
Facsimile: (516) 543-0516
Email: paul@paresq.com
About JLF 114 Liberty
JLF 114 Liberty LLC listed its business as a single asset real
estate (as defined in 11 U.S.C. Section 101(51B)). JLF 114 Liberty
sought protection under Chapter 11 of the Bankruptcy Code (Bankr.
S.D.N.Y. Case No. 18-10608) on March 2, 2018. In the petition
signed by James A. Fernandez, managing member, the Debtor estimated
assets and liabilities of $1 million to $10 million. The Debtor
tapped Paul A. Rachmuth, Esq., as its legal counsel.
JOHNS-MANVILLE: Ruling Against S. Parra in Suit vs Marsh Reversed
-----------------------------------------------------------------
The appeals case captioned THE BOGDAN LAW FIRM, as counsel for
Salvador Parra, Jr., Appellant, v. MARSH USA, INC., Appellee, No.
18-cv-1228 (JSR) (S.D.N.Y.) arises out of the long-running
bankruptcy of the Johns-Manville Corporation, once the largest
supplier of raw asbestos in the US.
Salvador Parra, Jr. brought suit in Mississippi state court against
Marsh USA, Inc., Manville's principal insurance broker. Parra
alleged that Marsh knew of the dangers of asbestos but did not
disclose them, and conspired with Manville and others to prevent
the public and the government from learning the truth. Marsh moved
to enjoin that litigation, and the bankruptcy court held that
claims like these were enjoined and channeled into the bankruptcy
as part of an order issued in 1986. Parra appealed, and the
district court remanded for consideration of whether Parra was
adequately represented during the 1986 proceedings with regard to
these types of claims, and, if he was not, whether he suffered any
prejudice. The bankruptcy court held that he was adequately
represented and, in any event, was not prejudiced because he could
recover from the trust set up as part of the bankruptcy.
Upon analysis of the facts presented, District Judge Jed S. Rakoff
reverses and holds that Parra was not adequately represented in the
1986 proceedings and was thereby prejudiced. Parra is therefore not
precluded from challenging the bankruptcy court's jurisdiction to
enjoin Parra's state law case, and, on the merits, Parra succeeds
in that challenge.
On remand, the bankruptcy court found that "the Future Claims
Representative was fully aware of the terms of the injunction
against settling insurers and the types of claims that might be
enjoined," including non-derivative claims. "Future [asbestos
claimants'] rights, including whatever in personam rights they may
have had, were addressed and considered by the Future Claims
Representative who considered the proposed order to enjoin actions
against the settling insurers." The bankruptcy court's factual
findings are subject to review for clear error.
The order appointing the FCR after the 1984 Insurance Settlement
Agreement stated that the FCR represented "those persons who have
been exposed to asbestos or asbestos products mined, manufactured,
or supplied by Manville pre-petition and have manifested or will
manifest disease post-petition, and who are not otherwise
represented in these proceedings." Parra personally falls within
this category and does not contend that he did not receive due
process as to his in rem claims. But the order is vague as to
whether the FCR was authorized to represent future claimants as to
any other claims.
The record demonstrates that neither the FCR nor any other party to
the 1986 proceedings believed the bankruptcy court had jurisdiction
to enjoin independent claims against third-parties. The FCR would
thus have no reason to believe such claims were within the scope of
his representation, and so could not have provided adequate
representation on that score.
The district court also remanded to the bankruptcy court for
consideration of whether "denial of due process would have resulted
in prejudice" to Parra, noting that "the 1986 Orders resulted in
creating the Manville Trust," from which Parra "had the opportunity
to seek damages for his asbestos-related injuries." The bankruptcy
court held that the "answer clearly is no," because "there is no
dispute that Parra could submit a claim to the Manville Trust."
It is difficult to evaluate in hindsight whether the outcome would
have been any different had the FCR adequately represented future
claimants as to these claims. Marsh, however, contends that this is
the rare exception because the FCR and several objectors, in fact,
argued that the bankruptcy court did not have jurisdiction to
enjoin claims against third parties that did not relate to the
bankruptcy res, ROA 1969-70, 2027, just as an adequate
representative would have done. These objections, however, led to
the FCR's own brief and argument, clarifying that he too did not
believe that the bankruptcy judge had jurisdiction to bind future
claimants as to non-derivative claims against third parties, which
led to the June 3, 1985 letter agreement addressing those concerns.
The overwhelming evidence indicates that no one believed that the
bankruptcy court could bind future claimants as to their
nonderivative claims against third parties.
Had the FCR understood that these claims were within his mandate,
he may have lobbied harder for the explicit exclusion of such
claims from the channeling injunction or compelled Marsh to
contribute more to the Trust, which would mean that more would
remain for this plaintiff to recover. That uncertainty alone is
sufficient to find prejudice. The Court, therefore, cannot say with
fair assurance that the outcome would not have been materially
different had Parra received adequate representation.
The Court, therefore, finds that the FCR did not adequately
represent Parra as to his non-derivative claims against third
parties and that this inadequate representation was not harmless.
The bankruptcy court clearly erred in finding otherwise. Because
Parra did not receive due process, he is not estopped from
challenging the bankruptcy court's jurisdiction to channel these
claims to the Manville Trust, and that challenge succeeds. Parra is
free to proceed with the Mississippi action.
Accordingly, the January 2018 Order is reversed, and the case is
remanded to the bankruptcy court for further proceedings.
A full-text copy of the Court's Opinion and Order dated July 25,
2018 is available at https://bit.ly/2MjX9mK from Leagle.com.
The Bogdan Law Firm, as Counsel for Salvador Parra, Jr., Appellant,
represented by Todd E. Duffy -- tduffy@duffyamedeo.com -- Duffy
Amedeo LLP.
Marsh USA, Inc., Appellee, represented by Benjamin Patrick
McCallen, Willkie Farr & Gallagher LLP, John A. Koepke, Jackson
Walker L.L.P, pro hac vice, Jonathan David Waisnor , Willkie Farr &
Gallagher LLP & Joseph Davis, Willkie Farr & Gallagher LLP.
About Johns-Manville
Johns-Manville Corp. was, by most sources, the largest manufacturer
of asbestos-containing products and the largest supplier of raw
asbestos in the United States from the 1920s until the 1970s.
Manville sold raw asbestos to manufacturers of asbestos-based
products in 58 countries and distributed its own asbestos-based
products "across the entire spectrum of industries and employment
categories subject to asbestos exposure."
As a result of studies linking asbestos with respiratory disease,
Manville became the target of a growing number of products
liability lawsuits in the 1960s and 1970s. Buckling under the
weight of its asbestos liability, Manville filed for Chapter 11
protection on August 26, 1982, before Judge Lifland.
To avoid the uncertainty of insurance litigation and to fund its
plan of reorganization, Manville sought to settle its insurance
claims. Manville obtained in excess of $850,000,000 from
settlements with its insurers. The U.S. Bankruptcy Court for the
Southern District of New York entered an order confirming the
Debtors' Second Amended and Restated Plan of Reorganization on
Dec. 22, 1986.
KASSIS DEVELOPMENT: Case Summary & 5 Unsecured Creditors
--------------------------------------------------------
Debtor: Kassis Development Group Inc.
2331 N State Road 7, Ste 221
Lauderhill, FL 33313-3770
Business Description: Kassis Development Group Inc. listed its
business as Single Asset Real Estate
(as defined in 11 U.S.C. Section 101
(51B)). The Company owns in fee simple
two vacant lands in Pompano Beach, Florida
with an aggregate current value of $684,000.
Chapter 11 Petition Date: August 20, 2018
Court: United States Bankruptcy Court
Southern District of Florida (Fort Lauderdale)
Case No.: 18-20114
Judge: Hon. John K. Olson
Debtor's Counsel: Stephen P. Orchard, Esq.
LAW OFFICES OF STEPHEN ORCHARD
2255 Glades Road, Suite 324A
Boca Raton, FL 33431
Tel: (561) 455-7961
Email: sporchard@orchardlaw.com
Total Assets: $689,502
Total Liabilities: $1,142,163
The petition was signed by Antoine Kassis, president.
A full-text copy of the petition containing, among other items, a
list of the Debtor's five unsecured creditors is available for free
at:
http://bankrupt.com/misc/flsb18-20114.pdf
KENNETH ALAN SARGENT: Court Grants Bid to Reopen Chapter 11 Case
----------------------------------------------------------------
Bankruptcy Judge Paul W. Bonapfel granted debtor Kenneth Allen
Sargent's motion to reopen his chapter 11 bankruptcy case captioned
IN RE KENNETH ALAN SARGENT, Chapter 11, Debtor, Case No.
15-41550-pwb (Bankr. N.D. Ga.).
After confirmation of Sargent's Chapter 11 plan, entry of a Final
Decree, and closing of the chapter 11 case, Sargent moved to
reopen it to deal with disputes concerning entitlement to the net
proceeds of $77,894.26 from the post-bankruptcy sale of his
residence. The funds have been escrowed pending resolution of the
dispute.
Mr. Sargent contends that he is entitled to the funds because they
are the proceeds from the sale of an exempt asset that cannot be
subjected to the payment of his debts under 11 U.S.C. section
522(c). With regard to a judicial lien on the residence held by
Hamilton State Bank, Mr Sargent asserts that the bank did not
retain its lien under the plan and that confirmation of the plan
vested the residence in him free and clear of the lien under
section 1141(c). Alternatively, he contends that the plan reserved
his right to avoid it under 11 U.S.C. section 522(f), and he now
seeks to do so. Sargent seeks to reopen the case to obtain this
relief.
Hamilton State Bank contends that it retained its judicial lien on
the residence under the plan and that it is entitled to the
proceeds. The bank opposes reopening of the case and the avoidance
of its judicial lien on the residence and has renewed its objection
to Mr. Sargent's claim of exemptions that it had timely filed prior
to confirmation but was not heard or resolved.
As an initial matter, the Court will reopen this case. The
confirmation order [144 at 4] provides that this Court retains
jurisdiction for purposes set forth in the plan. A number of
provisions make it clear that the Court may exercise jurisdiction
to resolve the disputes that the parties have presented. In these
circumstances, appropriate cause exists to reopen the case for
purposes of resolving these disputes concerning the terms of the
plan, the rights and obligations of the parties, and Mr. Sargent's
right to the relief he seeks.
The description in the bank's proof of claim of the property that
secures its claim does not contemplate that the bank has an
interest in any real property other than the two commercial
properties. Consistent with this description, the provisions of the
Plan for the treatment of the bank's claim specifically refer to
the commercial properties and to personal property as securing its
claim but do not refer to the residence or other real property. At
the same time, however, plan provisions contemplate that the bank
will retain its judicial lien until it is paid in full and will
release and cancel the lien only when full payment occurs.
The questions with regard to Mr. Sargent's ability to seek
avoidance of the bank's judicial lien after confirmation include
whether such an action is a reserved "Cause of Action" and, if so,
whether its assertion is permissible in view of the provision for
treatment of the bank's claim in section 4.5 of the plan [127 at
13] that the term sheet attached as Exhibit A to the plan "shall
govern and control in the event of any conflict between said term
sheet and any other provisions of this Plan concerning the
treatment of HSB's allowed secured claim."
The Court need not address these interpretive difficulties in view
of the plan's treatment of Ms. Sargent's Class 10 claim and,
specifically, the injunction in section 4.10 that expressly and
unequivocally requires Mr. Sargent to pay any net proceeds from the
sale of the residence to the bank.
Because the Court will enforce the plan's injunction, Mr. Sargent's
motions to determine whether the bank's lien on the residence
survived confirmation and to avoid it under 11 U.S.C. section
522(f) are moot. To the extent that Mr. Sargent requests damages
from the bank, the Court concludes that he is not entitled to
damages in view of the determination that the bank is entitled to
the proceeds.
A full-text copy of the Court's Order dated July 24, 2018 is
available at https://bit.ly/2MRrGnT from Leagle.com.
Kenneth Alan Sargent, Debtor, represented by Brian R. Cahn, Brian
R. Cahn and Associates, LLC.
Office of the United States Trustee, U.S. Trustee, represented by
David S. Weidenbaum , Office of the U.S. Trustee.
Kenneth Alan Sargent filed a Chapter 11 bankruptcy petition (Bankr.
N.D. Ga. Case No. 15-41550) on July 6, 2015.
LA PALOMA GENERATING: District Court Dismisses CARB Appeal as Moot
------------------------------------------------------------------
District Judge Matthew W. Brann granted LNV Corporation's motion to
dismiss the appeals case captioned CALIFORNIA AIR RESOURCES BOARD,
Appellant, v. LA PALOMA GENERATING COMPANY, LLC, Appellee/Debtor.
LNV CORPORATION, Appellee, OFFICIAL COMMITTEE OF UNSECURED
CREDITORS, Appellee, No. 1:17-CV-1698 (D. Del.).
Appellee/Debtor, La Paloma Generating Company, LLC owns a natural
gas-fired electricity generation facility in the state of
California, which releases greenhouse gases into the atmosphere.
Under the California statutory framework, La Paloma, as part of a
cap and trade program, was required to acquire an estimated $63
million dollars' worth of compliance instruments on the open market
in order to satisfy its state emission surrender obligations. LNV
had been a secured lender to La Paloma, whose debts to LNV totaled
over $300 million dollars in credit secured by substantially all of
LNV's assets, including the facility.
Because a dispute arose over La Paloma's $63 million dollars worth
of compliance instrument liability, it also received two offers
from third parties to purchase the electricity generation facility,
one for $25 million and one for $75 million. Both offers were
conditioned on a determination by the Bankruptcy Court that the
purchaser would not be liable for the $63 million dollars in Debtor
Emission Surrender Obligations. In the end, LNV purchased all of La
Paloma's assets, as La Paloma's secured creditor, through a $150
million dollar credit bid, i.e., a reduction in the amount of LNV's
secured claim.
La Paloma subsequently filed a petition for a voluntary
reorganization under Chapter 11 of the Bankruptcy Code. A plan was
submitted for Bankruptcy Court approval to permit LNV to assume
substantially all of La Paloma's assets. La Paloma, LNV, and CARB
all presented the issue of whether the transfer of assets,
including the electricity generation facility, could be transacted
free and clear of any obligations to surrender compliance
instruments under the California Cap-and-Trade Program. In a
thorough and well-reasoned opinion, the Bankruptcy Judge reviewed
the relevant California statutes and determined that LNV did not
assume successor liability for the Debtor Emission Surrender
Obligations prior to its acquisition of the Debtor's assets, and,
resultantly, confirmed the plan.
CARB then appealed to the Court. On January 19, 2018, LNV filed a
motion to dismiss the appeal, arguing that it is moot pursuant to
Section 363(m) of the United States Bankruptcy Code.
Having reviewed the Bankruptcy Judge's decision interpreting
whether or not LNV would have successor liability under
California's statutory framework, the Court would affirm that
substantive opinion. Judge Sontchi correctly decided the issue
based on the plain language of California's statute, rather than on
CARB's recommended, self-serving interpretation of the legislative
intent of the emissions statute. Second, in CARB's unpersuasive
case citation, there was an escrow fund in place from the
purchaser, to which the Government was appealing in order to obtain
its asserted slice of the pie. Thus, there was no effect on either
the sale itself or the sale price of the property. The only issue
was which of the creditors were entitled to a portion of that
escrow account.
In the case at bar, there is no such escrow account at issue.
CARB's asserted slice of the pie would have greatly affected the
sales price LNV would have been willing to negotiate to obtain the
property had Judge Sontchi decided LNV was responsible for
successor liability for emissions from the facility. CARB's
citation is, on its face, on-point. However, a thorough review of
that case and its comparison to the instant matter belies that more
superficial analysis.
For the foregoing reasons, the motion to dismiss the appeal as moot
is granted.
A full-text copy of the Court's Memorandum Opinion dated July 31,
2018 is available at https://bit.ly/2OIDglV from Leagle.com.
California Air Resources Board, Appellant, represented by
GianClaudio Finizio -- gfinizio@bayardlaw.com -- Bayard, P.A.
La Paloma Generating Company, LLC, Appellee, represented by Jason
Michael Madron -- madron@rlf.com -- Richards, Layton & Finger, PA
& Mark David Collins -- Collins@rlf.com -- Richards, Layton &
Finger, PA.
LNV Corporation, Appellee, represented by Jeffrey M. Schlerf --
jschlerf@foxrothschild.com -- Fox Rothschild LLP.
Official Committee of Unsecured Creditors, Appellee, represented by
Jason Anthony Gibson , The Rosner Law Group LLC.
About La Paloma Generating
La Paloma Generating Company, LLC, a D.C.-based merchant power
generator, and its affiliates La Paloma Acquisition Co, LLC, and
CEP La Paloma Operating Company, LLC, filed Chapter 11 bankruptcy
petitions (Bankr. D. Del. Case Nos. 16-12700 to 16-12702) on Dec.
6, 2016. The petitions were signed by Niranjan Ravindran, as the
Debtors' authorized person.
La Paloma Generating estimated $100 million to $500 million in
assets and $500 million to $1 billion in liabilities.
The Hon. Christopher S. Sontchi presides over the cases.
The Debtors are represented by John J. Rapisardi, Esq., and George
A. Davis, Esq., at O'Melveny & Myers LLP, as lead bankruptcy
counsel; and Mark D. Collins, Esq., Andrew Dean, Esq., and Jason M.
Madron, Esq., at Richards, Layton & Finger, P.A., as Delaware
counsel. Lawyers at Curtis, Mallet-Prevost, Colt & Mosle LLP serve
as conflicts counsel. Jefferies LLC serves as the Debtors'
financial advisor and investment banker, while their claims and
noticing agent is Epiq Bankruptcy Solutions. Alvarez & Marsal North
America, LLC, is the financial advisor.
Maria Aprile Sawczuk has been appointed fee examiner in the
bankruptcy case.
On Aug. 2, 2017, the Debtors filed a Chapter 11 Plan and Disclosure
Statement.
Andrew R. Vara, Acting U.S. Trustee for Region 3, on Sept. 5
appointed three creditors to serve on the official committee of
unsecured creditors in the Chapter 11 case of La Paloma Generating
Co. LLC, et al. The committee members are: (1) Argo Chemical, Inc.;
(2) PowerFlow Fluid Systems, LLC; and (3) GE Mobile Water, Inc.
LANNETT COMPANY: Moody's Cuts CFR & Secured Loans Ratings to 'B3'
-----------------------------------------------------------------
Moody's Investors Service downgraded Lannett Company, Inc.'s
Corporate Family Rating to B3 from B2, the Probability of Default
Rating to Caa1-PD from B3-PD and the secured revolver and term loan
facility ratings to B3 from B2. The Speculative Grade Liquidity
Rating was downgraded to SGL-3 from SGL-2. Moody's also placed all
of Lannett's ratings, other than the Speculative Grade Liquidity
Rating on review for downgrade.
This action follows announcement that Lannett was unable to renew
its distribution agreement with Jerome Stevens Pharmaceuticals. The
contract expires on March 23, 2019. Under the contract, Lannett has
the right to distribute several products, including Levothyroxine
Sodium, which accounts for roughly 35% of total revenue and is
highly profitable at around 60% gross margins. Earnings will be
relatively stable through March 2019 before Moody's expects
meaningful sales and earnings erosion from the loss of contribution
from Levothyroxine Sodium.
The ratings downgrade to B3 reflects Moody's expectation that
earnings will significant decline once contribution from
Levothyroxine and other products under its JSP distribution
agreement expires in March 2019. The earnings declines increase the
risk of a covenant breach in the latter half of 2019 if Lannett is
unable to receive covenant relief. In addition, refinancing risk is
increasing given its $125 million undrawn revolver and term loan A
mature in November 2020.
Ratings downgraded and placed on review for further downgrade:
Lannett Company, Inc.:
Corporate Family Rating to B3 from B2
Probability of Default Rating to Caa1-PD from B3-PD
Senior secured revolver and term loan facilities to B3 (LGD3) from
B2 (LGD3)
Outlook Actions:
Outlook, Changed To Rating Under Review From Stable
Rating downgraded:
Speculative Grade Liquidity Rating to SGL-3 from SGL-2
Moody's review will focus on the flexibility of Lannett's cost
structure and the ability of Lannett's earnings and pipeline to
partially offset the impact of the loss of Levothyroxine after
March 2019.
RATINGS RATIONALE
Lannett's existing B3 Corporate Family Rating (under review for
downgrade) is constrained by its high revenue and profit
concentration in a relatively limited number of drugs as well as
the expected loss from Levothyroxine and other products under its
JSP distribution agreement. It is also constrained by its moderate
size with revenues of less than $700 million that are entirely
concentrated in the US. Price erosion within Lannett's existing
base of business will challenge its ability to grow over the next
year. Lannett's ability to partially offset these revenue pressures
will primarily be dependent on its ability to successfully launch
new products without capacity constraints.
The SGL-3 reflects Moody's expectation that liquidity will be
adequate over the next 12-15 months. Lannett has cash balances in
excess of $100 million at March 31, 2018 and an undrawn $125
million bank revolving credit facility that expires in November
2020. Moody's expects free cash flow will be weaken starting at the
end of March 2019 once its JSP distribution agreement expires. In
addition, the company has mandatory term loan amortization payments
that will total approximately $67 million in each of the fiscal
years ending June 2019 and June 2020 that Moody's believes will
reduce cash balances. Lannett's bank credit agreement contains a
maximum secured net debt/EBITDA financial maintenance covenant of
3.75 times that steps down to 3.25 times from December 31, 2019
onwards. Lannett's secured net debt/EBITDA was 3.36 times as of
March 31, 2018. Moody's believes compliance with covenants is
uncertain once the covenant steps down at the end of calendar year
2019.
Lannett Company, Inc., headquartered in Philadelphia, Pennsylvania
is a generic drug manufacturer and distributor with capabilities in
difficult-to-manufacture products. Lannett reported revenues of
approximately $650 million for the twelve months ended March 31,
2018.
The principal methodology used in these ratings was Pharmaceutical
Industry published in June 2017.
LEGAL COVERAGE: Trustee's Selling Diamond Ring to Kharis for $80K
-----------------------------------------------------------------
Leslie Beth Baskin, the Chapter 11 Trustee for The Legal Coverage
Group Ltd., asks the U.S. Bankruptcy Court for the Eastern District
of Pennsylvania to authorize the sale of a diamond ring to Kharis
Fine Jewelry, LLC for $80,000, subject to overbid.
The Debtor's principal, Gary A. Frank purchased the Ring for his
fiancée with LCG funds in 2017. The Trustee made demand upon the
fiancée to return the Ring, which she did on April 9, 2018. It
has been confirmed by Trustee's Court-appointed accountants,
Asterion, Inc., that Frank improperly and fraudulently used LCG
funds to pay for the Ring.
On May 22, 2018, the Trustee filed an application to employ Craiger
Drake Designs to sell the Ring, which Frank purchased on June 20,
2017. To the best of the Trustee's knowledge, there are no liens
or encumbrances attaching to the Ring. The purchase price of the
Ring was $122,300.
On May 30, 2018, the Court entered an Order authorizing the Trustee
to employ Craiger Drake to sell the Ring. Under the terms of the
Order, Craiger Drake is entitled to be compensated for its services
at the rates set forth in the application for employment and the
letter of retention, as well as reimbursement of out-of-pocket
expenses. The letter of retention states that Craiger Drake will
attempt to locate a buyer and sell the Ring to the highest paying
purchaser, subject to the Court's approval, and in exchange,
Craiger Drake will receive a 10% commission based on the sale price
of the ring.
The Order further authorizes the Trustee to sell the Ring with
proceeds of the sale to be held in Trustee's segregated,
non-operating DIP account, subject to a proper determination as to
whether this estate or the Chapter 7 estate of Gary Frank has
entitlement to the net proceeds of the sale.
Craiger Drake marketed the Ring for almost two months and
identified six prospective purchasers who expressed interest in the
Ring. The Trustee also received offers from two prospective
purchasers of the Ring, which offers were in the $40,000 to $50,000
range.
The highest offer was made by the Purchaser (principal is Marina
Fragoso) for $80,000.00. This is an all cash offer. Craiger Drake
has advised the Trustee that this price is, in its opinion, the
best offer the Trustee is likely to receive.
The Trustee respectfully requests the Court's approval to sell the
Ring, free and clear of any and all liens and encumbrances, for
$80,000, with $8,000 of the proceeds from the sale to be paid to
Craiger Drake as its 10% commission and the remaining $72,000 in
net proceeds to be deposited in Trustee's segregated, non-operating
DIP account.
If the Trustee receives a competing bid to that made by way of
response to the instant Motion, which competing bid will be in
excess of $82,000 and be an all-cash bid, she will hold an auction
in her office within 24 hours of the hearing. All subsequent
offers at the auction, if such auction is held, must be in $1,000
increments.
The Trustee respectfully submits that expedited consideration of
the Motion and a shortening of the periods that would otherwise be
provided for notice and objections to the proposed sale is
necessary and appropriate to ensure that the sale to the Purchaser
is not jeopardized by delay. She asks that an expedited hearing be
scheduled for August 13, 14 or 15, 2018 if those dates are
acceptable to the Court.
About The Legal Coverage Group
The Legal Coverage Group Ltd., also known as LCG, Ltd., is a
Pennsylvania Subchapter S corporation. LCG, the exclusive provider
of HELP Legal Plan, was founded in 1995 to modernize and ultimately
perfect the concept of the employee legal plan. Headquartered in
the suburbs of Philadelphia, Pennsylvania, HELP is a privately-held
employee legal plan servicing worksites of all sizes and industries
on a regional and national level, while maintaining the industry's
highest rates of retention through unparalleled, unlimited, and
fully comprehensive benefits services provided by only partner
level attorneys.
Legal Coverage Group sought protection under Chapter 11 of the
Bankruptcy Code (Bankr. E.D. Pa. Case No. 18-10494) on Jan. 26,
2018. In the petition signed by CEO Gary A. Frank, the Debtor
estimated assets of $100 million to $500 million and liabilities of
$10 million to $50 million.
Judge Jean K. FitzSimon presides over the case.
Dilworth Paxson LLP is the Debtor's legal counsel; and Wipfli LLP,
as tax advisor.
Leslie Beth Baskin, Esq., has been appointed as Chapter 11 Trustee,
and is represented by the law firm of Spector Gadon & Rosen, PC.
LONGVIEW POWER: ALPS Wins Summary Judgment Bid vs BRL, FATCO
------------------------------------------------------------
District Judge Irene M. Keeley entered an order granting
Plaintiff's motion for summary judgment in the case captioned ALPS
PROPERTY & CASUALTY INSURANCE COMPANY, Plaintiff, v. BOWLES RICE,
LLP; and FIRST AMERICAN TITLE INSURANCE COMPANY, Defendants, Civil
Action No. 1:18CV29 (N.D.W.V.).
In November 2016, First American Title Insurance Company filed suit
against Bowles Rice, LLP, a law firm with offices, among others, in
Charleston and Morgantown, West Virginia. First American's
complaint alleges that Bowles Rice breached several agency
agreements in connection with the issuance of a $775 million title
insurance policy ("Underlying Case"). Pursuant to a Lawyers
Professional Liability Insurance Policy, ALPS Property & Casualty
Insurance Company has defended Bowles Rice against First American's
allegations in the Underlying Case since its inception.
ALPS now seeks a declaration that coverage for the Underlying Case
is subject to the $5 million per claim limit of the Policy, rather
than the $10 million aggregate limit. Pursuant to the language of
the Policy, only one claim is at issue if First American's
allegations constitute one "demand for money or services" or
multiple demands "arising out of the same, related or continuing
professional services."
Although the parties dispute many matters in the Underlying Case,
the Court concludes that no material factual disputes affect its
determination of the coverage issues in this action. Even accepting
as true all of First American's allegations in the Underlying Case
and related litigation, ALPS is entitled to a declaration that the
plain language of its Policy provides only $5 million in coverage
due to the "each Claim" limit.
In this case, the Policy has a $5 million limit of liability for
"each claim," which is defined as "all claims arising out of the
same, related or continuing professional services." In turn, a
"claim" is defined as "a demand for money or services, including
but not limited to the service of suit or institution of
arbitration proceedings against the Insured." Therefore, all
demands for money or services "arising out of the same, related or
continuing professional services" are subject to the $5 million per
claim limit of liability.
Importantly, no matter how many "claims" are made, the "each claim"
limit of liability remains the same. "All Claims that arise out of
or in connection with the same or Related Professional Services,
whenever made, and without regard to the number of Claims or
claimants, or the number of Insureds, shall be considered together
as a single Claim . . . and shall be subject to the same single
`Each Claim' Limit of Liability." After a thorough review of the
language of the Policy, the Court concludes that the allegations at
issue in the Underlying Case are properly considered both the same
and related professional services.
Neither defendant has offered a convincing argument as to why,
especially in light of the unambiguous language of the Policy,
Bowles Rice might have had a reasonable expectation that the
aggregate limit would be available in the Underlying Case. Bowles
Rice contends that the "Policy distinguishes services as a title
agent from other types of professional services," and that Bowles
Rice "specifically negotiated the inclusion of a specific
endorsement to cover services as a title insurance agent."
According to Bowles Rice, ALPS cannot charge it for a title
insurance agent endorsement and subsequently limit coverage
involving such services to one claim.
This argument misses the mark. Bowles Rice bargained for and paid
for a policy endorsement that amended the definition of
Professional Services. The endorsement for title insurance agent
services unambiguously places such services in the same category as
researching and certifying title. Nothing about the endorsement
even suggests that title insurance agent services are not subject
to the "each claim" limit when such services are the same or
related, and there is nothing objectively confusing about charging
an additional premium for additional coverage.
Moreover, unlike the insured in New Hampshire Insurance Co., Bowles
Rice has not offered any evidence that ALPS made a prior
representation regarding coverage, upon which Bowles Rice relied,
that is inconsistent with the position ALPS has taken in this
litigation. First American and Bowles Rice simply disagree with
ALPS about how the Policy should be interpreted. For these reasons,
the Court concludes that the doctrine of reasonable expectations is
inapplicable in this case.
A full-text copy of the Court's Memorandum Opinion and Order dated
July 31, 2018 is available at https://bit.ly/2MlUEAm from
Leagle.com.
ALPS Property & Casualty Insurance Company, Plaintiff, represented
by Jeremy T. Fitzpatrick -- Jeremy.fitzpatrick@kutakrock.com --
Kutak Rock LLP, pro hac vice, Kevin D. Hartzell --
kevin.hartzel@kutakrock.com -- Kutak Rock LLP, pro hac vice &
Tiffany R. Durst , Pullin Fowler Flanagan Brown & Poe PLLC.
Bowles Rice LLP, Defendant, represented by Sarah A. Walling --
saw@JenkinsFenstermaker.com -- Jenkins Fenstermaker, PLLC & Lee
Murray Hall -- lmh@JenkinsFenstermaker.com -- Jenkins
Fenstermaker, PLLC.
First American Title Insurance Company, Defendant, represented by
Frank E. Simmerman, Jr. , Simmerman Law Office, PLLC, Lucas M.
Blower -- lblower@brouse.com -- Brouse McDowell, L.P.A., pro hac
vice, Nicholas P. Capotosto -- ncapotosto@brouse.com -- Brouse
McDowell, L.P.A., pro hac vice, Chad L. Taylor , Simmerman Law
Office PLLC & Frank Edward Simmerman, III , Simmerman Law Office
PLLC.
About Longview Power
Longview Power LLC is a special purpose entity created to
construct, own, and operate a 695 MW supercritical pulverized
coal-fired power plant located in Maidsville, West Virginia, just
south of the Pennsylvania border and approximately 70 miles south
of Pittsburgh. The project is owned 92% by First Reserve
Corporation (First Reserve or sponsor), a private equity firm
specializing in energy industry investments, through its affiliate
GenPower Holdings (Delaware), L.P., and 8% by minority interests.
Longview Power, LLC, filed a Chapter 11 (Bank. D. Del. Lead Case
13-12211) on Aug. 30, 2013. The petitions were signed by Jeffery
L. Keffer, the Company's chief executive officer, president,
treasurer and secretary. The Debtor estimated assets and debts of
more than $1 billion. Judge Brendan Linehan Shannon presides over
the case. Kirkland & Ellis LLP and Richards, Layton & Finger,
P.A., serve as the Debtors' counsel. Lazard Freres & Company LLC
acts as the Debtors' investment bankers. Alvarez & Marsal North
America, LLC, is the Debtors' restructuring advisors. Ernst &
Young serves as the Debtors' accountants. The Debtors' claims
agent is Donlin, Recano & Co. Inc.
The Debtor disclosed assets of $1.72 billion plus undisclosed
amounts and liabilities of $1.08 billion plus undisclosed amounts.
A committee of unsecured creditors has not been appointed in the
case due to insufficient response to the U.S. Trustee's
communication/contact for service on the committee.
Judge Brendan Linehan Shannon on March 16, 2015, confirmed the
Debtors' Second Amended Joint Plan of Reorganization. The Plan
incorporates the settlement among the Debtors, First American Title
Insurance Company, and their contractors Amec Foster Wheeler North
America, Kvaerner, and Siemens Energy, Inc.
MB INDUSTRIES: Court Contractually Subordinates Dooley's Claim
--------------------------------------------------------------
M.B. Industries, L.L.C. Liquidating Trust, which is the successor
in interest to Debtor M.B. Industries, L.L.C., filed counterclaims
against counter-defendants David Dooley, Sr., Brenda Dooley, David
M. Dooley, Jr., and Chris Vallot in the case captioned David M.
Dooley, Sr., et al., Plaintiffs, v. MB Industries, L.L.C., et al.,
Defendants, AP No. 15-1005 (Bankr. W.D. La.). All of the Debtor's
counterclaims against Brenda Dooley, David M. Dooley, Jr., and
Chris Vallot have been dismissed by agreement. Further, all of the
Debtor's counterclaims against David Dooley, Sr. ("Dooley") have
been dismissed by agreement, except for Count 6. In Count 6, the
Debtor is seeking the subordination of Dooley's unsecured proof of
claim, which totals $4,204,211.
Upon analysis, Bankruptcy Judge Jeffrey P. Norman rules in favor of
counter-claimant and concludes that Dooley's claim should be
contractually subordinated pursuant to the terms of the confirmed
Chapter 11 plan.
In this case, the confirmed Chapter 11 plan contains a provision
that specifically dictates how Dooley's claim will be treated. In
fact, that provision explicitly states that any claims resulting
from the Promissory Note would be subordinated. This is despite the
fact that the Promissory Note itself states that only the principal
amount of the note would be subordinated, and not interest and
attorney's fees. If Dooley had objected the Chapter 11 plan, it is
quite possible the Court would have stricken that provision or
required the Debtor to amend the plan to more accurately reflect
the terms of the Promissory Note. However, Dooley did not object.
The confirmed plan is binding, and Dooley's claim must be treated
pursuant to its provisions.
This result is further supported by an examination of the treatment
of Class 9 claims on page 20 of the plan. Class 9 consists of
"Equitably Subordinated Unsecured Claims subordinated pursuant to
section 510(c) of the Bankruptcy Code." It states that the Debtor
would be requesting this Court equitably subordinate the Dooley
Parties' unsecured claims. The provision goes on to state that the
claims would be treated in Class 6 if the Court denied the
equitable subordination of these claims. In this provision, it is
clear that the treatment of these claims would be contingent on a
future finding by the Court that the claims were equitably
subordinated. No such contingency is proposed in Class 8. The plan
states that Dooley's claims pursuant to the Promissory Note are
subordinated to all other general unsecured creditors, and that
provision does not contemplate the Court making this determination
in a proceeding at a later date.
Finally, the Court notes that Count 6 is not an objection to a
proof of claim. In fact, the parties agreed to dismiss all of the
other counterclaims filed by the Debtor. This includes Count 5,
which actually was a request to disallow certain claims. The Court
has reviewed Dooley's proof of claim, and it appears there may be
amounts included that are not related to the Promissory Note, but
that are instead related to the Realignment Agreement and amounts
owing to other parties. However, the Court has not been asked to
make a determination as to the validity of the claim, and no
evidence has been presented or stipulated to that effect. The
Debtor has simply requested the claim be subordinated. Therefore,
without such evidence, the Court can only assume that the entire
claim should be treated in Class 8 per the confirmed Chapter 11
plan.
The Debtor has requested the Court subordinate Dooley's proof of
claim pursuant to 11 U.S.C. section 510(a), 510(b), 510(c), and
105. Although the Debtor did not request contractual subordination
of Dooley's claim in its counterclaim, the Court will contractually
subordinate the claim based on the terms of the confirmed Chapter
11 plan.
A full-text copy of the Court's Memorandum Opinion dated August 1,
2018 is available at https://bit.ly/2BpweAD from Leagle.com.
David M Dooley, Sr, individually & as Trustee, Brenda Dooley,
individually & as Trustee, David M Dooley, Jr & Chris Vallot,
Plaintiffs, represented by Gerald C. Delaunay, Perrin Landry
DeLaunay & Oscar E. Reed, Jr., Perrin Landry DeLaunay.
M B Industries L L C, Defendant, represented by John S. Hodge --
jhodge@wwmlaw.com -- Wiener Weiss & Madison.
Frederick J Gossen, Carmel Group Inc, Carmel Enterprises L L C &
X-Treme Doors L L C, Defendants, represented by W. Michael Adams
-- madams@bwor.com -- Blanchard Walker et al, B. Slattery Johnson
-- sjohnson@bwor.com -- Jr. , Blanchard Walker et al, Frederick L.
Welter , D A's Office 15th J D C, Robert W. Johnson --
rjohnson@bwor.com -- Blanchard Walker et al & Timothy Russell Wynn
-- twynn@bwor.com -- Blanchard Walker et al.
Hallwood Modular Buildings L L C, Hallwood Financial Ltd, Gert
Lessing & Anthony Gumbiner, Defendants, represented by W. Michael
Adams, Blanchard Walker et al, B. Slattery Johnson, Jr., Blanchard
Walker et al, Robert W. Johnson, Blanchard Walker et al & Timothy
Russell Wynn, Blanchard Walker et al.
M B I Global L L C, M B I Construction & Logistics Services L L C &
B K L C L L C, Defendants, represented by Curtis R. Shelton --
curtisshelton@arklatexlaw.com -- Ayres Shelton et al & Frank J.
Wright, Gardere Wynne Sewell, pro hac vice.
An involuntary Chapter 7 petition was filed against Shreveport,
Louisiana-based MB Industries, L.L.C., on Oct. 2, 2014 (Bankr.
14-12416, Bankr. W.D. La.). The involuntary Chapter 7 case was
converted to a Chapter 11 case on Nov. 6, 2014. A plan was
confirmed on May 26, 2016.
MD Industries was represented by John S. Hodge, Esq., and R. Joseph
Naus, Esq.
Petitioning Creditors Hallwood Financial Limited and Hallwood
Modular Buildings, L.L.C., were represented by M. Thomas Arceneaux,
Esq., at Blanchard, Walker, O'Quin & Roberts, in Shreveport,
Louisiana; B. Slattery Johnson, Jr., Esq.; Robert W. Johnson, Esq.;
and Timothy R. Wynn, Esq., at Blanchard, Walker, O'Quin & Roberts,
in Shreveport, Louisiana.
Petitioning Creditor Daily Equipment Company Inc., was represented
by John Nickelson, Esq., at Nickelson Law, PLLC, in Shreveport,
Louisiana.
Petitioning Creditor Stuart C. Irby Company was represented by S.
Ault Hootsell, Esq., and Jordan B. Monsour, Esq., at Butler Snow,
LLP, in New Orleans, Louisiana.
MLW LLC: Taps Nason Yeager as Special Counsel
---------------------------------------------
MLW, LLC seeks approval from the U.S. Bankruptcy Court for the
Southern District of Florida to hire Nason, Yeager, Gerson, White &
Lioce, PA, as special counsel.
The firm will assist the Debtor in seeking land use and zoning
approval for its property located in Palm Beach County.
Nason Yeager will be paid an hourly fee of $395.
Thomas Mullin, Esq., at Nason Yeager, disclosed in a court filing
that he and his firm do not represent any interest adverse to the
Debtor and its estate.
The firm can be reached through:
Thomas Mullin, Esq.
Nason, Yeager, Gerson, White & Lioce, PA
3001 PGA Blvd., Suite 305
Palm Beach Gardens, FL 33410
Phone: (561) 686-5442
Email: tmullin@nasonyeager.com
About MLW LLC
MLW, LLC, is a lessor of real estate in Boynton Beach, Florida. It
is the fee simple owner of a real property located at 10207 100th
Street, South Boynton Beach, Florida, valued by the company at $1
million.
MLW, LLC, sought protection under Chapter 11 of the Bankruptcy Code
(Bankr. S.D. Fla. Case No. 18-14567) on April 18, 2018. In the
petition signed by Mark L. Woolfson, managing member, the Debtor
disclosed $1.06 million in assets and $1.22 million in liabilities.
Judge Erik P. Kimball presides over the case. Alan R. Crane,
Esq., at Furr & Cohen, P.A., serves as the Debtor's bankruptcy
counsel.
MS DIAGNOSTIC: Trustee Taps Daphne Masin as Field Agent
-------------------------------------------------------
The Chapter 11 trustee for MS Diagnostic Laboratory LLC seeks
approval from the U.S. Bankruptcy Court for the Central District of
California to hire a field agent.
Elissa Miller proposes to employ Daphne Masin to assist her in the
Debtor's daily operations; oversee and organize its financial books
and records; prepare daily cash flows; and communicate with the
trustee on payment of costs and expenses.
Ms. Masin will charge an hourly fee of $75 for her services.
In a court filing, Ms. Masin disclosed that she neither holds nor
represents any interest adverse to the Debtor's estate, creditors
or equity security holders.
About MS Diagnostic Laboratory
MS Diagnostic Laboratory LLC sought protection under Chapter 11 of
the Bankruptcy Code (Bankr. C.D. Cal. Case No. 18-15114) on May 2,
2018. In the petition signed by Montano Geronimo, Jr., the Debtor
estimated assets of less than $50,000 and liabilities of less than
$1 million.
Judge Barry Russell presides over the case. The Debtor tapped Lo &
Lo LLP as its legal counsel.
Elissa D. Miller was appointed Chapter 11 trustee for the Debtor.
NAVILLUS TILE: Resolves Union Dispute, To Exit Chapter 11 by Oct.
-----------------------------------------------------------------
Navillus on Aug. 17, 2018, announced the resolution of its dispute
with unions, allowing the company to proceed with exiting Chapter
11 bankruptcy by early October 2018. Throughout the Chapter 11
process, Navillus, which currently maintains a $750M project
workload, has continued work on all its major projects without
interruption, and has continued to bid on new work. During the
process Navillus has not lost a single contract, has retained its
management team, and has grown its leadership ranks.
"We are pleased to put this process behind us and we remain focused
on delivering for our clients," said Donal O'Sullivan, Founder and
CEO of Navillus Contracting. "Our work has continued uninterrupted
throughout the process, and with the court expressing its
willingness to vacate its judgment after the appeals court remands
the cases, Navillus will be able to continue to contribute to the
economic vitality of New York City for years to come."
As a result of the Aug. 17 announcement, Navillus will file an
amended plan to emerge from Chapter 11 under the continued
leadership of Donal O'Sullivan.
"I am pleased to see that the hard work of all the stakeholders
throughout the mediation process resulted in a settlement that is
good for the industry," said Frank Sciame, consultant to the
Navillus board, founder and current CEO of Sciame Construction and
former Chairman of the NY Building Congress. "A premier union
contractor will now continue to employ hundreds of union workers
that will continue to safely change the New York City skyline."
Founded in 1987, Navillus is a New York City-based construction
company specializing in commercial concrete, masonry, tile, stone,
and general contracting. With more than 30 years of experience and
outstanding capabilities in cost estimation, value engineering, and
project management, Navillus has played a leadership role in many
of the region's most highly recognized infrastructure and
private-sector projects. They have also consistently donated time
and resources to communities in need, including assistance with
emergency response efforts after Hurricane Irma, Hurricane Sandy
and the 2010 earthquake in Haiti.
Navillus is currently working on several major projects in NYC
including:
* One Vanderbilt – Superstructure concrete work for One
Vanderbilt Avenue, a 1401-ft.-high, 58-story tower that will stand
as the tallest office building in Midtown Manhattan.
* One Manhattan West – 2,100,000 square feet, 67-floor,
1000-ft.-high commercial property
* Five major New York City Housing Authority restoration
projects
* Ongoing public jobs with the Metropolitan Transit Authority,
NYC School Construction Authority, and the Triborough Bridge and
Tunnel Authority.
Navillus' CEO also reaffirmed his appreciation and respect for the
tens of thousands of union workers Navillus has employed throughout
its 30-year history.
"We have been the largest union benefit contributor in NYC for
decades, and we are extremely grateful to the strong union
workforce that has continued to work with Navillus during this
time. I look forward to working with all of them going forward as
we shape the NYC skyline together," Mr. O'Sullivan added. "We
would also like to thank our clients, vendors, partners and staff
for believing in us and standing by us through the process."
About Navillus Tile
Navillus Tile Inc., is one of the largest subcontractors and
general contractors in New York, specializing as a high-end
concrete and masonry subcontractor on large private and public
construction projects in the New York metropolitan area. Navillus
works closely with many of New York's most prominent architects,
builders, owners, government agencies and institutions and is
pre-qualified by numerous commercial and government agencies.
Navillus operates its business from a midtown Manhattan
headquarters which it has leased since 2015. Donald O'Sullivan,
which founded the business with his brothers, is the sole director,
president and chief executive officer of Navillus.
Navillus Tile filed for Chapter 11 bankruptcy (Bankr. S.D.N.Y. Case
No. 17-13162) on Nov. 8, 2017, estimating $100 million to $500
million in assets and debt.
Judge Sean H. Lane is the case judge.
Cullen and Dykman LLP is the Debtor's legal counsel. Otterbourg
P.C., serves as special litigation and conflicts counsel. Garden
City Group, LLC, is the claims agent and administrative advisor.
On Nov. 28, 2017, the U.S. Trustee for Region 2 appointed an
official committee of unsecured creditors. Hahn & Hessen LLP is
the committee's bankruptcy counsel.
By stipulation and order entered May 25, 2018, the Court approved
the appointment of a fee examiner in the Debtors' case. The U.S.
Trustee appointed Diana G. Adams, Esq., as fee examiner.
NEW BERN: RS&R Summary Judgment Bid on WC Indemnity Claim Allowed
-----------------------------------------------------------------
On remand from the district court, Bankruptcy Judge Stephani W.
Humrickhouse allows third-party defendant Randolph Stair & Rail
Co.'s motion for summary judgment on Weaver Cooke's contractual
indemnity claim.
In its original memorandum, Weaver Cooke argued that "[c]ontrary to
the assertions of Randolph [Stair], its indemnity obligation is not
limited to only claims for "'bodily injury, sickness, disease or
death, or to injury to or destruction of tangible property (other
than Subcontractor's Work itself).'" As it did in the East Carolina
Masonry, Inc. Indemnity Remand Order, the court disagrees. For the
same reasoning set forth in that order, the court concludes that
any alleged insufficiency as to the quantity or placement of the
shelf angles installed by Randolph Stair is wholly within the scope
of Randolph Stair's "Work." "To the extent that Weaver Cooke seeks
damages based on alleged injury to these components, that recovery
is precluded by the language just discussed." Moreover, the court
finds, based on the broader interpretation of "scope of work" used
by the district court in its discussion of the economic loss rule,
that any damage to the brick veneer (including, in particular, the
cracking cited by the district court) also comes within the scope
of Randolph Stair's "Work."
The economic loss rule obviously does not, itself, determine the
parameters of whether the damages Weaver Cooke attributes to
Randolph Stair are within, or outside, the scope of "the Work."
Applying the rule, the court already has found that it precluded
Weaver Cooke from recovering on the negligence claim because the
"installation of shelf angles is integrally related to construction
of the brick veneer. Any defect in the installation of shelf angles
would necessarily affect the brick veneer." "For purposes of the
economic loss rule," the court concluded, "the damages alleged to
the brick veneer relate to the subject of Randolph Stair's
contract, i.e., installation of the anchors for the brick veneer."
On appeal, the district court affirmed and took a broader view of
what work would be included within a contract's scope of work, as
opposed to relating to damage to property other than that which was
the subject of the contract.
The court finds the district court's analysis of the rule to be
both informative and persuasive. Further, the court sees no sound
basis upon which it could conclude, using the district court's
broader view, that the damages for which Weaver Cooke seeks
contractual indemnity (and which must be based on a showing of
negligence) are for damage outside the scope of Randolph Stair's
"Work." Summary judgment will be granted to Randolph Stair on this
basis.
The adversary proceeding is NEW BERN RIVERFRONT DEVELOPMENT, LLC,
Plaintiff, v. WEAVER COOKE CONSTRUCTION, LLC; TRAVELERS CASUALTY
AND SURETY COMPANY OF AMERICA; J. DAVIS ARCHITECTS, PLLC; FLUHRER
REED PA; and NATIONAL ERECTORS REBAR, INC. f/k/a NATIONAL
REINFORCING SYSTEMS, INC., Defendants, and WEAVER COOKE
CONSTRUCTION, LLC; and TRAVELERS CASUALTY AND SURETY COMPANY OF
AMERICA, Defendants, Counterclaimants, Crossclaimants and
Third-Party Plaintiffs, v. J. DAVIS ARCHITECTS, PLLC, FLUHRER REED
PA, SKYSAIL OWNERS ASSOCIATION, INC.; NATIONAL REINFORCING SYSTEMS,
INC., ROBERT P. ARMSTRONG, JR., ROBERT ARMSTRONG, JR., INC., SUMMIT
DESIGN GROUP, INC., CAROLINA CUSTOM MOULDING, INC., CURRENTON
CONCRETE WORKS, INC., WILLIAM H. DAIL d/b/a DD COMPANY, EAST
CAROLINA MASONRY, INC., GOURAS, INC., HAMLIN ROOFING SERVICES,
INC., HUMPHREY HEATING & AIR CONDITIONING, INC.; PERFORMANCE FIRE
PROTECTION, LLC; RANDOLPH STAIR AND RAIL COMPANY; STOCK BUILDING
SUPPLY, LLC; PLF OF SANFORD, INC. f/d/b/a LEE WINDOW & DOOR
COMPANY; UNITED FORMING, INC. a/d/b/a UNITED CONCRETE, INC.;
JOHNSON'S MODERN ELECTRIC COMPANY, INC.; and WATERPROOFING
SPECIALITIES, INC., Crossclaimants, Counterclaimants and
Third-Party Defendants. and NATIONAL ERECTORS REBAR, INC.
Defendant, Counterclaimant, Crossclaimant and Third-Party
Plaintiff, v. ROBERT P. ARMSTRONG, JR., ROBERT ARMSTRONG, JR.,
INC., SUMMIT DESIGN GROUP, INC., JMW CONCRETE CONTRACTORS, and
JOHNSON'S MODERN ELECTRIC COMPANY, INC. Third-Party Defendants. and
J. DAVIS ARCHITECTS, PLLC, Third-Party Plaintiff, v. McKIM & CREED,
P.A., Third-Party Defendant. and GOURAS, INC., Third-Party
Defendant and Fourth-Party Plaintiff, v. RAFAEL HERNANDEZ, JR.,
CARLOS CHAVEZ d/b/a CHAVEZ DRYWALL, 5 BOYS, INC. and ALEX GARCIA
d/b/a/ JC 5, Fourth-Party Defendants. and STOCK BUILDING SUPPLY,
LLC, Third-Party Defendant and Fourth-Party Plaintiff, v. CARLOS O.
GARCIA, d/b/a/ C.N.N.C., Fourth-Party Defendant, Adversary
Proceeding No. 10-00023-AP (Bankr. E.D.N.C.).
A full-text copy of the Court's Order dated July 24, 2018 is
available at https://bit.ly/2MvC9Zb from Leagle.com.
Jeld-Wen, Inc., Movant, represented by David M. Grogan --
grogan@slk-law.com -- Shumaker Loop & Kendrick, LLP.
New Bern Riverfront Development, LLC, Plaintiff, represented by
Daniel K. Bryson -- dan@wbmllp.com -- Whitfield, Bryson & Mason,
LLP, Matthew E. Lee -- matthew@wbmllp.com -- Whitfield, Bryson &
Mason, LLP, John A. Northen , Northen Blue, LLP, Stephanie
Osborne-Rodgers , Northen Blue, Vicki L. Parrott , Northen Blue,
LLP & Jeremy R. Williams , Whitfield Bryson & Mason LLP.
Humphrey Heating and Air Conditioning, Inc., Defendant, pro se.
National Erectors Rebar, Inc., fka National Reinforcing Systems,
Inc., Defendant, represented by Patsy A. Cook , William M. Black,
Jr., Attorneys, Christopher J. Derrenbacher, Lewis Brisbois
Bisgaard & Smith LLP & Jennifer M. St. Clair.
Travelers Casualty and Surety Company of America, Defendant,
represented by Matthew C. Bouchard, Lewis & Roberts P.L.L.C., Robyn
Burrows, Watt, Tieder, Hoffar & Fitzgerald, LLP & Carter B. Reid,
Watt, Tieder, Hoffar & Fitzgerald, LLP.
J. Davis Architects, PLLC, Defendant, represented by Jeffrey D.
Bradford, Brown Law LLP, Gregory W. Brown, Brown Law LLP & Kristi
Lyn Gavalier, Brown Law LLP.
About New Bern Riverfront Development
Cary, North Carolina-based New Bern Riverfront Development, LLC, is
the developer of SkySail Condominium, consisting of 121 residential
condominiums (plus 1 commercial/non-residential unit) located on
Middle Street on the waterfront in historic downtown New Bern,
North Carolina, and sells the SkySail Condominiums in the ordinary
course of business. New Bern Riverfront filed for Chapter 11
bankruptcy protection (Bankr. E.D.N.C. Case No. 09-10340) on Nov.
30, 2009. John A. Northen, Esq., at Northen Blue, LLP, represents
the Debtor. The Company disclosed $31,515,040 in assets and
$25,676,781 in liabilities as of the Chapter 11 filing.
New Bern Riverfront has filed an Amended Plan of Reorganization,
which represents a consensual plan negotiated with the Debtor's
secured creditor, Wells Fargo Bank, N.A. The Debtor contemplates
selling properties.
NO PLACE LIKE HOME: Court Amends Date in Chapter 11 Case Closing
----------------------------------------------------------------
The United States Trustee for Region 8 filed a motion to alter,
amend or vacate order administratively closing Debtor No Place Like
Home, Inc.'s estate. The U.S. Trustee questions the order entered
on April 30, 2018 administratively closing Debtor's Chapter 11 case
nunc pro tunc as of Dec. 31, 2017. The U.S. Trustee believes that
the nunc pro tunc provision was inappropriate under the
circumstances and that the case should have been administratively
closed as the entry of the order on April 30, 2018.
Bankruptcy Judge David S. Kennedy agrees with the U.S. Trustee and
the order will be amended to reflect that the case was
administratively closed as of April 30, 2018.
The Court generally takes the position that no oral decision has
any authority until a written order has been filed. Ordinarily,
when a motion is granted, the order is entered within a few days of
the Court's ruling. Due to the gap between the Court's oral ruling
and the filing of the written order, there is technically a period
of time where whatever relief was granted has not actually been
given effect. It is important to note that even though the motion
was granted orally at an earlier date, it is rare for the Court to
enter an order with a nunc pro tunc provision. In the vast majority
of cases, this period is short and a nunc pro tunc provision is
unnecessary.
In this case, it was several months before the order was entered.
The U.S. Trustee's position is that he expected an order would be
entered administratively closing the case as of the date the order
was entered and that he did not oppose such an order. This would be
in line with the Court's normal practices. The "surprise" occurred
when the order contained the nunc pro tunc provision. Debtor
counters that the U.S. Trustee was provided a copy of the order
before it was entered. However, the Court is not sure the courtesy
copy provided to the U.S. Trustee eliminates the "surprise."
Economically, it made sense for Debtor to seek to administratively
close the case to avoid the quarterly fees and the U.S. Trustee had
no objection to the motion to do so. The Court believes that Debtor
had a responsible expectation that the dispute with the 22 former
employees would be resolved quickly enough that the case could be
administratively closed before (or at least close to) the New Year.
However, there was a delay in the resolution of those disputes and
Debtor felt the case needed to remain open until those disputes
were resolved. Therefore, it is inappropriate for the case to be
have been administratively closed in December 2017. Because Debtor
was making use of the Chapter 11 process, it must also pay the
statutorily required quarterly fees to the U.S. Trustee.
Considering a totality of the facts and circumstances and the
applicable law, the U.S. Trustee has satisfied the requirements of
Federal Rule of Civil Procedure 60(b)(6), which allows the Court to
alter or amend an order for "any other reason that justifies
relief."
The order to administratively close the case, which was entered on
April 30, 2018, is amended to administratively close the case as of
April 30, 2018.
A copy of the Court's Memorandum and Order dated August 16, 2018 is
available at:
http://bankrupt.com/misc/tnwb15-31133-438.pdf
About No Place Like Home
No Place Like Home, Inc., based in Collierville, Tenn., filed a
Chapter 11 petition (Bankr W.D. Tenn. Case No. 15-31133) on Nov.
20, 2015. Hon. David S. Kennedy presides over the case. E.
Franklin Childress, Jr., Esq., and M. Ruthie Hagan, Esq., at Baker,
Donelson, Bearman, Caldwell & Berkowitz P.C., serve as counsel to
the Debtor. In its petition, the Debtor estimated $1 million to
$10 million in assets and liabilities. The petition was signed by
John Flood, president.
OHAJER12 CORP: U.S. Trustee Unable to Appoint Committee
-------------------------------------------------------
The U.S. bankruptcy administrator on August 17 disclosed in a court
filing that no official committee of unsecured creditors has been
appointed in the Chapter 11 case of Mohajer12 Corp.
About Mohajer12 Corp.
Mohajer12 Corp. filed for bankruptcy (Bankr. S.D. Ala. Case No.
18-02674) on July 3, 2018. Barry A. Friedman, Esq., of Friedman,
Poole & Friedman, P.C., serves as the Debtor's counsel.
OSBORN TAVERN: May Use Cash Collateral Until Sept. 7
----------------------------------------------------
The Hon. Joan N. Feeney of the U.S. Bankruptcy Court for the
District of Massachusetts authorized the Osborn Tavern LLC's use of
cash collateral on an interim basis on the conditions set forth by
North Shore Bank in its Response pending further order of the Court
through the continued hearing which will be held on Sept. 7, 2018
at 11:00 a.m.
The Objection of the United States Trustee was reported resolved.
A copy of the Order is available at
http://bankrupt.com/misc/mab18-12448-45.pdf
About Osborn Tavern LLC
Osborn Tavern LLC sought protection under Chapter 11 of the
Bankruptcy Code (Bankr. D. Mass. Case No. 18-12448) on June 27,
2018. In the petition signed by Joel Hartnett, manager, the Debtor
estimated assets of less than $50,000 and liabilities of less than
$1 million. The Debtor tapped Shapiro & Hender as its legal
counsel.
PAC ANCHOR: Seeks December 11 Plan Exclusivity Period Extension
---------------------------------------------------------------
Pac Anchor Transportation, Inc., consisting of the Merger of Pac
Anchor Transportation Inc. and Green Anchor Lines Inc., asks the
U.S. Bankruptcy Court for the Central District of California to
extend until the exclusivity period from Aug. 13, 2018 to at least
until Dec. 11, 2018.
Prior to the commencement of Debtor's bankruptcy case, a Class
Action was commenced in the Superior Court of the State Court of
California, County of Los Angeles, titled "Carlos Mosquera and Juan
Francisco Rodriguez v. Pac Anchor Transportation, Inc., a
Corporation and Does one through fifty, inclusive, Case No.
BC664927."
In addition to the Class Action, the Debtor had one additional
lawsuit pending on the Petition Date. On September 5, 2018, the
Attorney General of the State of California commenced "People of
the State of California, ex rel. Xavier Becerra v. Pac
Transportation, Inc., et al., Case No. BC397600," before the
Superior Court of California, County of Los Angeles.
The Debtor has been actively involved with the Committee in an
attempt to resolve the Class Action and California Lawsuit. The
claims alleged in the Class Action, in so far as they relate to
restitution damages related to unpaid wages of the truck drivers
and injunctive relief, are identical in all respects to the claims
for restitution damages and the injunction sought in the California
Lawsuit. In addition, all of the claims alleged in the Class Action
and in the California Lawsuit are liquidate, contingent, and
vigorously disputed by the Debtor, and will not be resolved without
adjudication on the merits or settlement between the parties.
Thus, the Debtor was unable to propose a plan of reorganization
until at least either the Class Action or the California Lawsuit
are resolved by adjudication to a non-appealable judgment or by
agreement of the parties. Further, the Debtor and Committee desire
resolution of the Bankruptcy Case as swiftly and economically as
possible. As a result, the Debtor, the Committee, the Class
Claimants, and the State of California have participated in several
mediation sessions. The final session of mediation was conducted on
July 16, 2018 and resulted in the Settlement Agreement with the
Class Action Claimants and the Committee.
Pursuant to the Settlement Agreement, the Class Claimants have
agreed, subject to the approval of the Superior Court of California
and the Bankruptcy Court, to the treatment of their claims under
the Plan. As indicated in the Plan, the Class Claimants have votes
in the only two impaired classes of claims in the Plan which number
more than one-half of all claims within such classes and more than
two-thirds in amount of the total claims within the classes
(whether or not such claims actually vote). Additionally, the Plan
contains all that is required by 11 U.S.C. Section 1123. Further,
the Plan, if confirmed, will provide recovery for the creditors and
completely resolve the Bankruptcy Case. The Debtor anticipates that
the Plan, if confirmed, will be confirmed by December 31, 2018.
Notwithstanding the Settlement Agreement, the Plan, and the
Debtor's and the Committee's efforts to completely resolve the
Bankruptcy, California Lawsuit is still ongoing. Moreover, rather
than participate in all of the mediation sessions and contribute to
reaching the Settlement Agreement (which provides for the terms of
the Plan), the Attorney General has been vigorously prosecuting the
California Lawsuit to the detriment of the Debtor and Debtor's
creditors. Further, the litigation with the State of California is
set for trial on August 20, 2018.
Consequently, in order to move the Bankruptcy Action, the Debtor
and the Committee have taken several additional steps in relation
to the California Lawsuit in an effort to move the Bankruptcy to a
cost-effective and efficient resolution for the benefit of Debtor's
creditors. These steps include:
(a) A motion, before the Superior Court of the State of
California for preliminary approval of the Settlement Agreement,
has or will be filed.
(b) The Debtor filed the 9019 Motion and a hearing on the 9019
Motion is set for November 6, 2018.
(c) The Debtor and the Committee have jointly proposed the
Plan and Disclosure Statement. A hearing on the Motion to Approve
Disclosure Statement is currently set for September 18, 2018.
(d) On August 13, 2018, the Debtor filed a Motion requesting
the Court to set December 1, 2018 as the deadline for creditors to
file all administrative claims. The Motion is set for hearing on
September 18, 2018. The Motion to Set Administrative Bar Date will
allow the Debtor to determine what, if any, administrative claims
it has against it, which is necessary to ensure Debtor can perform
the terms of the proposed Plan.
About Pac Anchor Transportation
Pac Anchor Transportation, Inc., was formed from the merger of Pac
Anchor Transportation, Inc., and Green Anchor Lines, Inc. Pac
Anchor is a trucking company located in Wilmington, California,
that provides trucking services throughout the western United
States.
Pac Anchor filed for Chapter 11 bankruptcy protection (Bankr. C.D.
Cal. Case No. 17-18213) on July 6, 2017. In the petition signed by
Alfredo Barajas, its president, the Debtor disclosed $12.08 million
in assets and $11.24 million in liabilities.
Judge Ernest M. Robles presides over the case.
Haberbush & Associates LLP is the Debtor's legal counsel. Trojan
and Company Accountancy Corp. is the Debtor's accountant.
On Aug. 10, 2017, the Office of the U.S. Trustee appointed an
official committee of unsecured creditors. The Committee retained
Levene, Neale, Bender, Yoo & Brill LLP as legal counsel, and Armory
Consulting Company as financial advisor, and hired Van Horn
Auctions & Appraisal Group, LLC, to appraise the rolling stock and
related personal property of the Debtor with a fixed fee
arrangement.
PELICAN REAL ESTATE: $83K Sale of Consumer Accounts Pool Approved
-----------------------------------------------------------------
Judge Cynthia C. Jackson of the U.S. Bankruptcy Court for the
Middle District of Florida authorized Maria M. Yip, Liquidating
Trustee of the Smart Money Liquidating Trust and its
debtor-affiliates, to sell consumer accounts pool to to Phoenix
Asset Group, LLC, for $82,500.
The Liquidating Trustee conducted the Auction on July 31, 2018, at
3:00 p.m. (ET). The Sale Hearing was held on Aug. 2, 2018, at
11:00 a.m. (ET).
The Liquidating Trustee received the full amount of the Purchase
Price from the Buyer by Aug. 1, 2018.
The Consumer Accounts Pool is summarized as follows:
Loan Pool: $27,188, 315
Number of Accounts: 4,920
Eligible Inventory: $24,296,260
Price: 0.20%
Total Price: $48,593
The sale is "as is" and "where is" with no representations or
warranties of any kind, either express or implied; and free and
clear of all liens, claims, encumbrances, and interests.
The Liquidating Trustee is not selling (a) the proceeds from
Consumer Accounts within the Consumer Accounts Pool that have been
collected by CFS 2 as of the date of the Order and (b) any amounts
due to the Liquidating Trustee by CFS 2 Inc. as of the date of the
Order, and accordingly, all rights of the Liquidating Trustee to
recover and have such proceeds and amounts turned over from CFS 2
are reserved.
The 14-day stay provided by Bankruptcy Rule 6004(h) is eliminated.
The Liquidating Trustee is authorized to immediately return the
deposits of the two unsuccessful bidders.
About Pelican Real Estate
Pelican Real Estate, LLC, and its eight affiliates sought
protection under Chapter 11 of the Bankruptcy Code (Bankr. M.D.
Fla. Lead Case No. 16-03817) on June 8, 2016. In the petition
signed by Jared Crapson, president of SMFG, Inc., manager of
Pelican Management Company, LLC, Pelican Real Estate estimated
under $50,000 in both assets and debt.
The Debtors tapped Elizabeth A. Green, Esq., at Baker & Hostetler
LLP, as bankruptcy counsel. The Debtors hired Bill Maloney
Consulting as their financial advisor; Hammer Herzog and Associates
P.A. as their accountant; and Pino Nicholson PLLC as their special
counsel.
Turnkey Investment Fund LLC, an affiliate of Pelican Real Estate
LLC, hired Dance Bigelow Sharp & Co. as accountant.
Guy Gebhardt, acting U.S. trustee for Region 21, on July 27, 2016,
formed an official committee of unsecured creditors for Pelican
Real Estate LLC's affiliates, Smart Money Secured Income Fund LLC
and Accelerated Asset Group LLC.
Maria Yip was appointed examiner in the case. She hired
GrayRobinson, P.A., as her lead counsel; Fikso Kretschmer Smith
Dixon Ormseth PS as special counsel; and Schweet Linde & Coulson,
PLLC, as special foreclosure counsel.
* * *
On Feb. 15, 2017, the Court entered an order confirming the
Debtors' Second Amended Plan of Liquidation. The Plan became
effective on March 2, 2017, at which time the Smart Money
Liquidating Trust came into existence and Ms. Yip was named the
liquidating trustee.
PES HOLDINGS: Chapter 11 Joint Plan Has Aug. 7, 2018 Effective Date
-------------------------------------------------------------------
PES Holdings LLC and its debtor-affiliates notified the U.S.
Bankruptcy Court for the District of Delaware that their second
amended joint Chapter 11 plan of reorganization became effective on
Aug. 7, 2018.
As reported by the Troubled Company Reporter on March 28, 2018,
Judge Kevin Gross of the U.S. Bankruptcy Court approved the
disclosure statement and confirmed the Debtors' second amended
joint prepackaged Chapter 11 plan, on March 26, after the Debtors
agreed to amend their plan to preserve the state of Pennsylvania's
right to collect on a $3.8 billion tax claim.
The Pennsylvania Department of Revenue said that state and company
officials had come to an agreement on changes to the plan's wording
that will preserve the state's right to collect the sales taxes
that the refinery allegedly owes, Law360 reported. The U.S.
Government also objected to the approval of the disclosure
statement and confirmation of the Plan, complaining it strips
claimants of defenses such as the right to assert setoff and
terminates rights that they would otherwise have. Further, the
U.S. Government objected to the treatment of any federal contracts
or other agreements in accordance with Article V of the Plan.
Multiple provisions relating to assumption and assignment, cure and
treatment of rejection damages are improper and objectionable, the
U.S. government said.
The Debtors filed a first amended Plan supplement, including the
second amended and restated limited liability company agreement and
new first lien credit agreement, full-text copies of which are
available at:
http://bankrupt.com/misc/deb18-10122-318.pdf
The Debtors also made certain technical modifications to the Plan
to comply with requirements under the Restructuring Support
Agreement. A full-text copy of the Plan is available at:
http://bankrupt.com/misc/deb18-10122-257.pdf
A full-text copy of the Plan Confirmation Order is available at:
http://bankrupt.com/misc/deb18-10122-323.pdf
About PES Holdings
Headquartered in Philadelphia, Pennsylvania, PES Holdings, LLC --
http://pes-companies.com/-- owns an oil refining complex. The
Philadelphia Energy Solutions Refining Complex operates two
domestic refineries -- Girard Point and Point Breeze -- in South
Philadelphia. The refinery processes approximately 335,000 barrels
of crude oil per day (42 U.S. gallons per barrel). In addition to
producing unbranded gasoline (87, 89 and 93 octane), PES also
produces jet fuel, cleaner-burning diesel, petrochemicals,
liquefied petroleum gas and sulfur in the Northeast. The company
offers a variety of diesels, including ultra-low-sulfur diesel,
non-road, heating oil, locomotive/marine and non-jet kerosene. PES
employs over 1,000 people. PES is owned by The Carlyle Group and a
subsidiary of Energy Transfer Partners, L.P.
PES Holdings and eight of its subsidiaries sought protection under
Chapter 11 of the Bankruptcy Code (Bankr. D. Del. Lead Case No.
18-10122) on Jan. 21, 2018. In the petition signed by Gregory G.
Gatta, manager, PES estimated assets and liabilities of $1 billion
to $10 billion.
The Hon. Kevin Gross is the case judge.
The Debtors hired Kirkland & Ellis LLP and Kirkland & Ellis
International LLP as their bankruptcy counsel; Pachulski Stang
Ziehl & Jones LLP as local bankruptcy counsel; PJT Partners LP as
financial advisor; Alvarez & Marsal North America, LLC as
restructuring advisor; and Rust Consulting/Omni Bankruptcy as
claims and noticing agent.
In addition, debtor North Yard GP, LLC, tapped Proskauer Rose LLP
as its conflicts counsel, and Bielli & Klauder, LLC, as co-counsel.
Debtor Philadelphia Energy Solutions Refining and Marketing LLC
tapped Chipman Brown Cicero & Cole, LLP as Delaware counsel, and
Curtis, Mallet-Prevost, Colt & Mosle LLP as its conflicts counsel
substituted by Katten Muchin Rosenman LLP.
The Bankruptcy Court has confirmed a Second Amended Joint
Prepackaged Chapter 11 Plan of Reorganization for the Debtors in
March 2018, after the Debtors agreed to amend their plan to
preserve the state of Pennsylvania's right to collect on a $3.8
billion tax claim.
POLAR US: Fitch Affirms 'B' Issuer Default Ratings, Outlook Stable
------------------------------------------------------------------
Fitch Ratings has affirmed the Long-Term Issuer Default Ratings
(IDR) of SK Blue Holdings, LP and its indirect wholly-owned
subsidiary Polar US Borrower, LLC at 'B'. Fitch has also affirmed
the 'BB-'/'RR2' rating for Polar's proposed first-lien senior
secured revolver and first-lien senior secured term loan and
withdrawn the 'CCC+'/'RR6' rating on Polar's previously considered
second-lien senior secured term loan. The Rating Outlook on both SK
Blue and Polar is Stable.
Fitch views SK Blue's decision to revise its capital structure as a
credit-friendly move that will improve the company's initial gross
leverage ratio and likely lead to quicker deleveraging over the
medium term. The company intends to eliminate the originally
planned $250 million senior secured second-lien term loan and
replace it with a $50 million increase in the first-lien term loan
and $200 million of preferred equity issued to its sponsor SK
Capital Partners LP. The preferred equity will be perpetual,
paid-in-kind and not subject to any events of default provisions.
Fitch does not consider the paid-in-kind preferred equity as debt.
SK Blue will still have a substantial initial debt load even with
the revised capital structure. Fitch projects the company will
likely see gross leverage exceed 6.0x through 2019 and will need to
funnel substantially all of its FCF toward debt repayment in order
to reach a more manageable long-term leverage ratio. Operational
execution on planned synergies and a demonstrated commitment toward
debt repayment could lead to positive pressure on SK Blue's
ratings.
KEY RATING DRIVERS
Stable Demand Profile: Fitch views the combined company's products
as having a relatively stable demand profile due to their diverse
set of end-uses in markets such as plastics & polymers, fuel &
lubricants and adhesives & industrial resins. The company's
chemicals generally account for a small portion of their customer's
total cost yet add significant value to their customer's products,
helping protect demand in a pressured macroeconomic environment. SK
Blue and SI Group's products are also complimentary in nature and
its customer base has some degree of overlap, which could lead to
cross-selling opportunities and expanded top-line revenue growth.
Fitch projects the combined entity's core markets will grow around
or slightly below GDP rates, absent such cross-selling benefits,
which will likely lead to low-single-digit revenue growth through
the forecast horizon.
Logistical Flexibility: With the purchase of SI Group, SK Blue
gains an expansive, nimble production and logistical network that
gives it considerable flexibility in supplying its customer's
needs. SI Group's production facilities are located across the
globe with a notable presence in North America, Europe and Asia
Pacific. Fitch views this strong logistical network as a credit
strength that will enable SK Blue to quickly and efficiently adapt
to regional demand changes for its products.
Benefits from SI Group Acquisition: SK Blue's acquisition of SI
Group, Inc. not only expands and diversifies the company's product
offerings but will also unlock considerable synergies due to the
complementary nature of the two company's products and operations.
Fitch projects that SK Blue will be able to realize a significant
amount of synergies within the first two years of the transaction's
close primarily as a result of removing inefficiencies/redundancies
within its operations and rationalizing certain of its production
facilities. Considerable upside in that projection remains, with
additional synergies that could come from other areas such as
procurement savings, the backwards integration of SK Blue into
certain raw materials it had previously purchased from SI Group and
further streamlining of operations. These additional synergies are
not included in Fitch's Rating Case assumptions.
Strong FCF Generation in Out Years: Fitch projects SK Blue will see
steady growth in its FCF generation throughout the ratings horizon
as a result of expanding operating EBITDA margins and manageable
CapEx. Both SK Blue and SI Group have focused on specializing
product offerings, trimming low-margin businesses and further
penetrating higher-growth end-markets. Combined with projected
synergies, this is likely to lead to growth in operating EBITDA
margins from around 13% in 2019 to greater than 16% in 2021. As a
result, annual FCF should grow from around $10 million in 2019 to
over $100 million by 2021 and provide SK Blue with ample financial
flexibility to pursue debt repayment. Fitch does not expect SK Blue
to spend on any material growth CapEx projects over the next
several years due to its strong logistical network.
Improved Leverage Profile: Fitch views the proposed changes to SK
Blue's capital structure as credit friendly and projects the
company will have the ability to delever to a gross leverage ratio
around 4.0x by 2021, compared to Fitch's prior forecast of around
5.0x by 2021. Such operational execution and demonstrated
commitment to debt repayment would likely lead to positive momentum
on SK Blue's ratings.
Parent/Subsidiary Linkage Strong: Fitch believes there are strong
legal and operational ties between SK Blue Holdings, LP and its
indirect wholly owned subsidiary Polar US Borrower, LLC. While SK
Blue does not guarantee Polar's debt, the company will run a
centralized treasury system. The proposed legal documentation also
includes standard dividend and other such restrictions that further
link the two entities. As per Fitch's Parent and Subsidiary Rating
Linkage criteria, such linkage justifies assigning the same IDR to
both SK Blue and Polar.
DERIVATION SUMMARY
Compared to other chemical peers in the 'B' category such as Kronos
Worldwide (B+/Stable) SK Blue Holdings LP has considerably higher
gross leverage metrics. Fitch projects SK Blue will not see
leverage below 5.0x until 2021, while Kronos' gross leverage trends
around 1.5x on average. However, SK Blue boasts a more diversified
product slate than Kronos and serves into a host of end-markets
that provide it with relatively stable product demand and lead to
relatively lower cash flow variability. Similar to SK Invictus
Intermediate II S.a.r.l. (B+/Stable) Fitch believes SK Blue will
focus substantially all of its FCF on debt repayment in order to
reach a more manageable long-term leverage ratio. However, SK
Invictus is considerably more specialized than SK Blue and has
higher growth potential from its main end-markets, while SK Blue
has more cost-linked margin expansion opportunities.
KEY ASSUMPTIONS
Fitch's Key Assumptions Within Its Rating Case for the Issuer
-- Revenue growth in the low-single-digits through 2021;
-- Full realization of projected synergies leading to
consolidated EBITDA margins in excess of 16% by 2021;
-- CapEx in line with company guidance;
-- Substantially all FCF used to repay outstanding debt.
Recovery Assumptions:
Fitch's recovery analysis, assuming a hypothetical bankruptcy
scenario used a going concern approach, with the assumptions
detailed here:
Fitch used a $250 million going concern EBITDA and a 6.0x multiple
to result in a $1.5 billion enterprise value for SK Blue Holdings,
LP. This valuation considers a scenario where SK Blue experiences
pressured margins as a result of heightened competition within its
end-markets and is unable to fully realize projected synergies,
leading to limited debt repayment and an unsustainable leverage
ratio. Its valuation multiple is an acknowledgement of the inherent
value of the combined company's asset base stemming from the
diverse end-uses of its products and a strong logistical network.
After adjusting for administrative claims, total value available to
creditors is $1,350 million, which results in a 78% recovery for
the first-lien revolver and term loan and an 'RR2' rating on both
instruments.
RATING SENSITIVITIES
Developments That May, Individually or Collectively, Lead to
Positive Rating Action
-- Demonstrated commitment to debt repayment leading to total
debt with equity credit/operating EBITDA sustained below 4.5x;
-- Successful integration of SI Group and execution on projected
synergies leading to consolidated operating EBITDA margins
sustained above 15%.
Developments That May, Individually or Collectively, Lead to
Negative Rating Action
-- Unsuccessful integration of SI Group leading to an inability
to realize a substantial portion of projected synergies and a
failure to repay at least $150 million of gross debt by year-end
2021;
-- Total debt with equity credit/operating EBITDA sustained above
5.5x;
-- Material debt-funded acquisitions and/or dividend payments.
LIQUIDITY
Adequate Liquidity: Fitch views SK Blue's liquidity as adequate and
projects the company's planned $250 million revolver will remain
essentially undrawn through the forecast horizon. Fitch expects the
company to maintain a nominal amount of cash on its balance sheet.
The planned first-lien term loan is slated to mature in 2025.
FULL LIST OF RATING ACTIONS
Fitch has affirmed the following ratings:
SK Blue Holdings, LP
-- Long-Term IDR at 'B'.
Polar US Borrower, LLC
-- Long-Term IDR at 'B';
-- First-lien secured credit facility at 'BB-'/'RR2';
-- First-lien secured term loan at 'BB-'/'RR2'.
Fitch has withdrawn the following ratings:
Polar US Borrower, LLC
-- Second-lien secured term loan 'CCC+'/'RR6'.
The Rating Outlook is Stable.
POLAR US: Moody's Hikes CFR & 1st Lien Loans Rating to B2
---------------------------------------------------------
Moody's Investors Service today upgraded the Corporate Family
Rating for Polar US Borrower, LLC to B2 from B3. Moody's also
upgraded the company's proposed senior secured first lien revolver
and term loan to B2 from B3 and withdrew the Caa2 rating on its
second lien term loan due to the revised capital structure. The
outlook is stable. The ratings are subject to the transaction
closing as proposed and receipt and review of the final
documentation.
Following a material revision to the proposed financing transaction
terms, SK Blue Holdings, LP will now contribute $200 million of
Limited Partnership Preferred Equity Interests (PEIs) and upsize
the first-lien term loan to $1.475 billion from $1.425 billion. The
PEIs will be perpetual with payment-in-kind (PIK) interest and, as
such, have been given 100% equity treatment. In addition, the $250
million second-lien term loan has been eliminated from the capital
structure.
"The upgrade reflects the improved capital structure and reduced
adjusted leverage from an initial 6.5x to 5.7x as a result of the
increased equity contribution" said Domenick R. Fumai, Moody's Vice
President and lead analyst. "While the increased capital
contribution is positive, substantial integration risks remain."
Upgrades:
Issuer: Polar US Borrower, LLC
Probability of Default Rating, Upgraded to B2-PD from B3-PD
Corporate Family Rating, Upgraded to B2 from B3
Senior Secured First Lien Bank Credit Facility, Upgraded to B2
(LGD3) from B3 (LGD3)
Outlook Actions:
Issuer: Polar US Borrower, LLC
Outlook, Remains Stable
Withdrawals:
Issuer: Polar US Borrower, LLC
Senior Secured Second Lien Bank Credit Facility, Withdrawn,
previously rated Caa2 (LGD6)
RATINGS RATIONALE
The upgrade of Polar US Borrower, LLC's CFR to B2 from B3 is due to
the substantial ($200 million) increase in equity used to finance
the transaction and the corresponding Improvement in leverage and
cash flow metrics. Moody's adjusted pro forma debt/EBITDA leverage
ratio will improve to approximately 5.7x from roughly 6.5x. Cash
flow to debt metrics should also improve to levels more appropriate
for the B2 rating.
The stable outlook is supported by Moody's expectation that SI
Group, Inc. will demonstrate meaningful progress in cutting costs
and integrating Schenectady International Group with its existing
Addivant operations. Moody's would consider upgrading the ratings
if the company achieves adjusted leverage meaningfully below 5x,
realized Retained Cash Flow/Debt of at least 10% and free cash flow
exceeds $100 million. Conversely, the ratings or outlook could be
lowered if earnings or liquidity were to deteriorate, the company
generates negative free cash flow, liquidity falls below $50
million or if adjusted leverage is sustained above 6.0x.
The principal methodology used in these ratings was Chemical
Industry published in January 2018.
Polar US Borrower, LLC is the pass-through entity of ultimate
parent, SK Blue Holdings, LP, an affiliate of private investment
firm, SK Capital Partners. On May 31, 2018, SK Capital entered into
an agreement to acquire Schenectady International Group for
approximately $1.65 billion with plans to merge the business with
SK Blue Holdings, LP subsidiary, Addivant. The pro-forma combined
business generated revenue of $1.8 billion in FY 2017. The merged
entity is a manufacturer of alkylated phenols primarily used as
additives in the production of plastics, fuel additives,
lubricants, chemical intermediates and health and wellness markets.
REMARKABLE HEALTHCARE: Taps Griffin Financial as Investment Banker
------------------------------------------------------------------
Remarkable Healthcare of Carrollton, LP, seeks approval from the
U.S. Bankruptcy Court for the Eastern District of Texas to hire an
investment banker.
The Debtor proposes to employ Griffin Financial Group, LLC, to
assist in negotiations for any potential financing; assist in the
solicitation of offers from potential lenders; help locate or
develop strategies for a plan of reorganization or other
alternatives to exit bankruptcy; and provide other investment
banking services.
Griffin will be paid $5,000 for each month during the term of its
representation of the Debtor. The bulk of the firm's compensation,
however, will be determined by a "financing transaction fee" to be
paid upon completion of the transaction.
The fee is contingent upon completion of the financing transaction
and will be an amount equal to the greater of $250,000 or 4% of the
total amount of senior capital advanced or committed to the
Debtor.
Griffin neither holds nor represents any interest adverse to the
Debtor's estate, according to court filings.
The firm can be reached through:
Thomas G. Whalen
Griffin Financial Group, LLC
620 Freedom Business Center, Suite 210
P.O. Box 61926
King of Prussia, PA 19406
Phone: (610) 205-6100 / (610) 205-6115
Email: tgw@griffinfingroup.com
About Remarkable Healthcare
Remarkable Healthcare operates skilled nursing facilities in
Dallas, Fort Worth, Prestonwood and Seguin, Texas. All Remarkable
facilities are designed to meet the needs of patients requiring
post-acute recovery and therapy or residents needing a longer-term
stay. Services are tailored to each individual with the goal of
facilitating increased strength and mobility while minimizing pain
and impairment. Remarkable's programs are designed to help
patients recover quickly from surgery, injury, or serious illness
and speed up the recovery process.
Remarkable Healthcare of Carrollton, LP and its affiliates filed
voluntary petitions (Bankr. E.D. Tex. Lead Case No. 18-40295) on
Feb. 12, 2018, seeking relief under Chapter 11 of the Bankruptcy
Code.
In the petitions signed by Laurie Beth McPike, president of LBJM,
LLC, its general partner, Remarkable Healthcare of Carrollton,
Remarkable Healthcare of Dallas, Remarkable Healthcare of Fort
Worth and Remarkable Healthcare of Seguin, each had estimated $1
million to $10 million in both assets liabilities; and Remarkable
Healthcare had $100,000 to $500,000 in estimated assets and $1
million to $10 million in estimated liabilities.
Mark A. Castillo, Esq., at Curtis Castillo PC, serves as the
Debtors' counsel.
On March 19, 2018, the Office of the U.S. Trustee appointed an
official committee of unsecured creditors.
RICHARD ANNUNZIATA: Judgment Denying Reconsideration Bid Upheld
---------------------------------------------------------------
Debtor Richard Annunziata in the appeals case captioned RICHARD
ANNUNZIATA, Appellant, v. PUTMAN AT TINTON FALLS, LLC, Appellee,
Civil Action No. 17-5733 (MAS) (D.N.J.) appeal from the Bankruptcy
Court's Order denying his motion for reconsideration dated July 19,
2017 asking the Bankruptcy Court to reconsider its order granting
Summary Judgment to Putnam at Tinton Falls. After careful
consideration, District Judge Michael A. Shipp denies Debtor's
appeal and affirms the Bankruptcy Court's Order.
The Debtor's motion for reconsideration did nothing more than
disagree with the Court's Summary Judgment decision. Debtor did not
offer any new evidence or raise any error of law. Instead, Debtor
presented the types of arguments that are inappropriate on a motion
for reconsideration. Here, Debtor recited the same arguments he
raised on summary judgment and offered no valid basis for the
Bankruptcy Court to reconsider its decision. The Court, therefore,
cannot find that the Bankruptcy Court Judge abused her discretion
in denying Debtor's motion for reconsideration. Accordingly,
Debtor's appeal is denied.
Debtor's arguments on appeal are exactly the same as the arguments
presented to the Bankruptcy Court. Essentially, Debtor believes
that the Court "ignored" Rooker-Feldman, res judicata precludes the
Bankruptcy Court's findings, and there are material disputes of
fact that must go to a jury. The Court is not persuaded by any of
these arguments. Upon the Court's review of the record and the
relevant case law, the Court finds that Debtor had no interest in
Putnam at the time he made the representations, and therefore, the
debt is not dischargeable under 11 U.S.C. secstion 523(a)(2).
Further, the Court finds that, based on the facts in the record,
Debtor's actions were taken with the intent to harm Putnam, by
mortgaging its properties without permission to obtain funds for
Debtor's personal use, and therefore, the debt is not dischargeable
under 11 U.S.C. section 523(a)(6). Finally, to the extent Debtor
could have possibly believed that he had an ownership interest in
Putnam, there is absolutely no basis for a reasonable belief that
he was the sole owner as he never held a 100% ownership interest,
and the debt is still nondischargeable under 11 U.S.C. section
523(a)(4).
The bankruptcy case is in re: RICHARD ANNUNZIATA, Debtor,
Bankruptcy Action No. 15-28996 (CMG)(Bankr. D.N.J.)
A copy of the Court's Memorandum Opinion dated July 30, 2018 is
available at https://bit.ly/2MnM5oC from Leagle.com.
RICHARD ANNUNZIATA, Appellant, pro se.
PUTNAM AT TINTON FALLS, LLC., Appellee, represented by ELIAS
ABILHEIRA -- elias@anlegal.net -- ABILHEIRA & ASSOCIATES, P.C.
SAINT & LIBERTINE: $250K Sale of Ivy Kirzhner Trademark to TFL OK'd
-------------------------------------------------------------------
Judge Nancy Hershey Lord of the U.S. Bankruptcy Court for the
Eastern District of New York authorized Saint & Libertine New York,
LLC and Veronica Faye Kirzhner to sell the exclusive right to
license the Ivy Kirzhner New York Trademark to Titan Footwear, LLC
("TFL") or its assignee for $250,000.
The sale is free and clear of any and all encumbrances of whatever
kind or nature, if any, with such liens, claims and interests, if
any, to attach to the proceeds of sale.
The Proceeds will be held in escrow with Bernstein Cherney LLP, the
Debtors' special counsel, and will not be distributed or allocated
between the S&L and KKirzhner estates until further order of the
Court.
The terms and conditions of the Order will be immediately effective
and enforceable upon its entry and the requirements of Bankruptcy
Rule 6004(h) are waived.
About Saint & Libertine New York
Saint & Libertine New York, LLC is a privately held company in
Brooklyn, New York in the footwear manufacturing industry. The
Company is a small business debtor as defined in 11 U.S.C. Section
101(51D). S&L was established in 2012, and obtained right the
exclusive right, as licensee, to use the IVY KIRZHNER NEW YORK
trademark. Its headquarters and showroom were located at 750
Greenwich St, New York, NY 10014.
Saint & Libertine New York sought Chapter 11 protection (Bankr.
Case No. 18-42000) on April 11, 2018. The case is assigned to
Nancy Hershey Lord. In the petition signed by Veronica Kirzhner,
member, the Debtor estimated assets in the range of $0 to $50,000
and $1 million to $10 million in debt. The Debtor tapped Joel M.
Shafferman, Esq., at Shafferman & Feldman LLP, as counsel.
SAMSON RESOURCES: 3rd Cir. Upholds Dismissal of D. Jones Appeal
---------------------------------------------------------------
Pro se appellant Diane Jones in the case captioned In re: SAMSON
RESOURCES CORPORATION, et al., Debtors. Diane S. Jones, Appellant,
No. 17-3502 (3rd Cir.) appeals the District Court's order
dismissing her appeal from an order of the Bankruptcy Court. The
United States Court of Appeals, Third Circuit affirms the District
Court's judgment.
In September 2015, Samson Resources Corporation and its affiliated
debtors filed Chapter 11 petitions in the Bankruptcy Court.
Thereafter, Jones and other heirs of Randolph Parker filed proofs
of claim based, in part, on an oil and gas royalty lease entered
into by Randolph. In February 2017, the Bankruptcy Court confirmed
the Debtors' plan. On June 15, 2017, the Bankruptcy Court entered
an order disallowing the claims of Jones and the other heirs. On
July 3, 2017, Jones filed a notice of appeal to the District
Court.
In the District Court, the Debtors filed a motion to dismiss the
appeal for lack of jurisdiction. The District Court granted the
motion and dismissed the appeal, concluding that Jones had not
filed her notice of appeal within 14 days of the Bankruptcy Court's
order. Jones then filed a timely notice of appeal to the Third
Circuit.
In her opening brief, Jones exclusively challenges the merits of
the Bankruptcy Court's decision and does not address the District
Court's ruling that her notice of appeal was untimely. Thus, as
Debtors argue, she has waived the key issue in this appeal.
Moreover, even if Jones had not waived the issue, she would be
entitled to no relief. As the District Court explained, Jones was
required to file her notice of appeal within 14 days of the
Bankruptcy Court's June 15, 2017 order disallowing her claim. She
did not file her notice of appeal until July 3, 2017, and it was
therefore untimely. As a result, the District Court lacked
jurisdiction to consider it. That jurisdictional defect bars not
only the District Court but also the Third Circuit from reviewing
the merits of Jones's bankruptcy appeal. Accordingly, the District
Court's judgment is affirmed.
A copy of the Court's Opinion dated August 10, 2018 is available at
https://bit.ly/2vUNloI from Leagle.com.
About Samson Resources Corporation
Samson Resources Corporation, et al., filed Chapter 11 bankruptcy
petitions (Bankr. D. Del. Lead Case No. 15-11934) on Sept. 16,
2015. Philip W. Cook, the executive vice president and CFO, signed
the petition. The Debtors estimated assets and liabilities of more
than $1 billion.
Samson is an onshore oil and gas exploration and production company
with interests in various oil and gas leases primarily located in
Colorado, Louisiana, North Dakota, Oklahoma, Texas, and Wyoming.
The Operating Companies operate, or have royalty or working
interests in, approximately 8,700 oil and gas production sites.
Samson was acquired by KKR and Crestview from Charles Schusterman
in December 2011 for approximately $7.2 billion. The investor
group provided approximately $4.1 billion in equity investments as
part of the purchase price.
Kirkland & Ellis LLP represents the Debtors as general counsel.
Klehr Harrison Harvey Branzburg LLP is the Debtors' local counsel.
Alvarez & Marsal LLC acts as the Debtors' financial advisor.
Blackstone Advisory Partners L.P. serves as the Debtors' Investment
banker. Garden City Group, LLC, serves as claims and noticing
agent to the Debtors.
Andrew Vara, acting U.S. trustee for Region 3, appointed three
creditors of Samson Resources Corp. and its affiliated debtors to
serve on the official committee of unsecured creditors. The
Committee has tapped White & Case LLP as counsel and Farnan LLP as
local counsel.
* * *
The Debtors have filed a plan of reorganization. The Creditors'
Committee has filed a competing plan of liquidation.
The Hon. Christopher S. Sontchi of the U.S. Bankruptcy Court for
the District of Delaware entered on Feb. 13, 2017, an order
confirming Samson Resources Corporation, et al.'s plan of
reorganization.
SESAC HOLDCO: S&P Affirms 'B' Issuer Credit Rating, Outlook Neg.
----------------------------------------------------------------
S&P Global Ratings affirmed its 'B' issuer credit rating on
Nashville, Tenn.-based SESAC Holdco II LLC. S&P also affirmed the
'B+' issue-level rating on the company's first-lien senior secured
credit facilities (consisting of a $385 million senior secured
first-lien term loan due 2024 and a $40 million revolving credit
facility due 2022), and the 'CCC+' issue-level rating on the
company's $140 million senior secured second-lien term loan due
2025. The recovery ratings for all issue-level debt remain
unchanged.
At the same time, S&P revised its outlook on SESAC to negative from
stable.
S&P said, "The negative rating outlook reflects our expectation
that the company will have negative FOCF over the next 12 months
due to large, one-time costs, and the risk that a slowdown in
EBITDA growth could lead to adjusted leverage remaining elevated
above the mid-6x area on a sustained basis. The company's earnings
in fiscal 2018 were hurt by the one-time rate reset for
broadcasting licensees following the 2017 arbitration settlement
with RMLC.
"Although SESAC's pro-forma leverage should decline organically due
to modest EBITDA growth, we expect that SESAC will generate
negative discretionary cash flow in fiscal 2019 due to high working
capital outflows linked to the RMLC arbitration refund process and
the payment of seller tax benefits to pre-LBO owners.
S&P said, "We expect free cash flow to recover to a more normalized
level of about $35 million in fiscal 2020. However, we expect S&P
adjusted leverage to remain elevated at around 7x at the end of the
fiscal year 2019 before declining to the mid 6x area in 2020. Our
measure of lease adjusted leverage (including one-time nonrecurring
fees) was 10.7x as of March 31, 2018 (fiscal year end) and
declining to 7.7x as of June 30, 2018." In addition, SESAC has a
history of paying debt-financed dividends to its private equity
owners. The company was acquired by private equity funds affiliated
with Blackstone Group LP in January 2017.
"The negative rating outlook reflects our expectation of negative
FOCF over the next 12 months due to the large, one-time
nonrecurring costs (including LBO related fees and RMLC settlement
payment), with the risk that a slowdown in EBITDA growth could lead
to adjusted leverage sustained above the mid 6x area.
"We could lower our issuer credit rating on SESAC if the company
experiences a sharp decline in affiliates, increased regulatory
pressure or unfavorable arbitration outcomes on its broadcasting
Licenses which would lead to lower revenue growth. Any of these
factors would likely result in EBITDA margin compression, leverage
remaining above the mid 6x area and FOCF to debt falling to less
than 5% on a sustained basis. Additionally, we could lower our
rating if the company pursues a large debt funded dividend
distribution pushing leverage above the mid 6x area.
"We could revise the outlook to stable if we believe the company
can generate stable FOCF of at least $30 million per year, and
maintain leverage in the mid-6x area on a sustained basis."
SHILOH TIRE: U.S. Trustee Unable to Appoint Committee
-----------------------------------------------------
No official committee of unsecured creditors has been appointed in
the Chapter 11 case of Shiloh Tire and Lube, Inc., as of August 17,
according to a court docket.
About Shiloh Tire and Lube Inc.
Shiloh Tire and Lube, Inc. sought protection under Chapter 11 of
the Bankruptcy Code (Bankr. S.D. Fla. Case No. 18-18430) on July
12, 2018. In the petition signed by Danny Forsythe, president, the
Debtor disclosed that it had estimated assets of less than $100,000
and liabilities of less than $500,000. Van Horn Law Group, P.A. is
the Debtor's bankruptcy counsel.
SHIRAZ HOLDINGS: $3M Sale of Iris Property to C&T Approved
----------------------------------------------------------
Judge Mindy A. Mora of the U.S. Bankruptcy Court for the Southern
District of Florida authorized Shiraz Holdings, LLC's sale of the
real property located at 920 Iris Drive, Delray Beach, Florida, to
C&T Financial, LLC.
A hearing on the Motion was held on July 31, 2018 at 11:00 a.m.
The sale is free of any and all, liens, claims or interests (with
same liens, claims, or interests being treated as Class 7 claims
within the Plan, which is confirmed by separate order) and title
will pass in fee simple pursuant to the Quit Claim Deed executed on
July 31, 2018, signed by the Debtor's authorized member, Jordan
Satary, which is presently being held in escrow by the counsel for
C&T, Tate Russack, Esq., pursuant to the Settlement Agreement
attached to the Motion to approve Compromise of Controversy Between
Shiraz Holdings, LLC and C&T Financial, LLC.
The Proposed Sale of the Iris Property is pursuant to the Plan.
About Shiraz Holdings
Shiraz Holdings, LLC, based in Delray Beach, Fla., filed a Chapter
11 petition (Bankr. S.D. Fla. Case No. 17-17968) on June 26, 2017.
In the petition signed by Jordan A. Satary, managing member, the
Debtor estimated $10 million to $50 million in both assets and
liabilities. The Hon. Paul G. Hyman, Jr. presides over the case.
Thomas M. Messana, Esq., at Messana, P.A., serves as bankruptcy
counsel to the Debtor. Fadi Elkhatib and Ten-X, LLC, serve as the
Debtor's real estate broker. Ten-X, LLC, is the Debtor's
auctioneer. No official committee of unsecured creditors has been
appointed in the Chapter 11 case.
SHORT ENVIRONMENTAL: Taps White-Boyd Law as Legal Counsel
---------------------------------------------------------
Short Environmental Laboratories, Inc., seeks approval from the
U.S. Bankruptcy Court for the Southern District of Florida to hire
White-Boyd Law, PA as its legal counsel.
The firm will advise the Debtor regarding its duties under the
Bankruptcy Code; represent the Debtor in negotiations with its
creditors in the preparation of a bankruptcy plan; and provide
other legal services related to its Chapter 11 case.
Nadine White-Boyd, Esq., at White-Boyd Law, disclosed in a court
filing that she and her firm do not represent any interest adverse
to the Debtor and its estate.
The firm can be reached through:
Nadine V. White-Boyd, Esq.
White-Boyd Law, PA
5589 Okeechobee Blvd., Suite 103
West Palm Beach, FL 33417
Tel: (561) 351-6895
Email: nvwboyd@aol.com
About Short Environmental Laboratories
Short Environmental Laboratories, Inc., is a privately-held company
in Sebring, Florida, that offers environmental testing for a wide
variety of industries. Some of its services include water and
waste water testing, compliance testing, and sample collection. It
also provides ground water, soils, and surface water testing.
Short Environmental Laboratories sought protection under Chapter 11
of the Bankruptcy Code (Bankr. S.D. Fla. Case No. 18-19640) on Aug.
7, 2018. In the petition signed by David Murto, president, the
Debtor disclosed $217,285 in assets and $1,463,746 in liabilities.
Judge Mindy A. Mora presides over the case.
SOUTH PLAZA CENTER: U.S. Trustee Unable to Appoint Committee
------------------------------------------------------------
No official committee of unsecured creditors has been appointed in
the Chapter 11 case of South Plaza Center Associates, LLC, as of
August 17, according to a court docket.
About South Plaza Center Associates
South Plaza Center Associates, LLC, sought protection under Chapter
11 of the Bankruptcy Code (Bankr. M.D. Fla. Case No. 18-05703) on
July 10, 2018. At the time of the filing, the Debtor estimated
assets and debt of $1 million to $10 million and liabilities.
STORE IT REIT: Equity Committee Seeks Appointment of Examiner
-------------------------------------------------------------
The official committee of equity security holders of Store It REIT,
Inc., has filed a motion seeking approval to appoint an examiner in
the company's Chapter 11 case.
In its motion filed with the U.S. Bankruptcy Court for the Southern
District of Texas, the equity committee expressed concern that
there could be mismanagement of the company and misappropriation of
funds for personal use of William Carden, president and director of
the company.
"An examiner should be appointed to investigate all potential
claims against the board president as well as other officers and
directors of debtor," said the equity committee's attorney Trey
Monsour, Esq., at Polsinelli PC, in Houston, Texas.
The move came after a review of the documents requested by the
equity committee from Store It REIT showed questionable
transactions, including the disposition of as much as $10.5 million
in funds of the company.
"Review of the seventy-four documents has led to more unanswered
questions concerning mismanagement of debtor as well as the
disposition of approximately $10.5 million in funds of debtor," Mr.
Monsour said in the court filing.
About Store It REIT
Store It REIT, Inc., formerly known as Evergreen Realty REIT, Inc.,
and American Spectrum REIT I, Inc., is a privately held company in
Ketchum, Idaho engaged in activities related to real estate. The
Company has 98.64% equity interest in Evergreen REIT, LP.
Evergreen REIT, LP, is a real estate investment trust owning
interest in entities that own tenant in common, limited
partnership, and/or general partnership interest in three
self-storage facilities.
Store It REIT filed for Chapter 11 bankruptcy protection (Bankr.
S.D. Tex. Case No. 18-32179) on April 27, 2018, listing $13.18
million in total assets and $127,143 in total liabilities. The
petition was signed by William J. Carden, president and director.
Judge Marvin Isgur presides over the case. The Debtor tapped
Deirdre Carey Brown, Esq., at Hoover Slovacek LLP, as its
bankruptcy counsel.
On July 3, 2018, the Office of the U.S. Trustee appointed an
official committee of equity security holders. The equity
committee tapped Polsinelli PC as its legal counsel.
SUBURBAN PROPANE: S&P Alters Outlook to Stable & Affirms BB- ICR
----------------------------------------------------------------
S&P Global Ratings revised its rating outlook on Suburban Propane
Partners L.P. to stable from negative. S&P said, "We also affirmed
our 'BB-' issuer credit rating. At the same time, we affirmed our
'BB-' issue-level rating on Suburban's senior unsecured notes. The
recovery rating on the notes remains '4', indicating our
expectation of average (30%-50%, rounded estimate: 45%) recovery in
the event of a payment default."
S&P said, "The revised outlook reflects our view of the
credit-positive steps Suburban has taken that we believe will lead
to debt below 5x in a normal winter. The partnership cut their
distribution in October 2017, reducing their cash needs for
distributions by $80 million per year. The distribution cut in
addition to more normal weather conditions allowed the partnership
to repay $60 million of revolver borrowings across the second and
third quarter of fiscal-year 2018. In addition to the distribution
cut, Suburban has maintained a disciplined cost structure, which
has provided flexibility in what has proved to be a volatile
propane demand climate. Additionally, Suburban has held their
margins strong during volatile commodity price environments, which
has contributed to their ability to reduce leverage. If the weather
is favorable, we expect Suburban will continue repaying debt,
returning to historical debt levels below 4x while maintaining
adequate liquidity. Suburban's fiscal discipline during difficult
winters supports our expectation of debt reduction over the fiscal
year.
"The stable outlook on Suburban reflects our expectation that the
partnership will maintain leverage below 5x and positive
distribution coverage through a normal winter in addition to ample
liquidity during a warm winter. We expect Suburban to continue to
repay debt with free cash flow available due to a reduction in
distribution requirements and strong margins.
"We could lower the ratings if Suburban's liquidity deteriorates or
we expect leverage to be above and remain 5x over period of time.
This could occur if margins deteriorate because of its inability to
pass on increasing propane prices to its customers, low demand
because of consecutive warm winter conditions, or customers
switching to alternative fuels.
"While an upgrade is unlikely in the near term, we could take
positive rating action if Suburban increases its size and scale.
This would most likely occur through an acquisition or merger
funded in a balanced manner with leverage below 3.5x."
SULTAN FINANCIAL: Taps Dady & Gardner as Litigation Counsel
-----------------------------------------------------------
Sultan Financial Corporation seeks approval from the U.S.
Bankruptcy Court for the Central District of California to hire
Dady & Gardner, P.A.
The firm will serve as the Debtor's franchise litigation counsel in
its Chapter 11 case generally, and in the adversary case it filed
against Aaron's, Inc. (Adv. Proc. 18-ap-01225).
The hourly rates for the firm's attorneys range from $220 to $525.
Paraprofessionals charge $150 per hour.
John Holland, Esq., a partner at Dady & Gardner and the attorney
who will be handling the case, charges an hourly fee of $425.
Mr. Holland disclosed in a court filing that his firm does not hold
any interest adverse to the Debtor's estate or its creditors and
equity security holders.
Dady & Gardner can be reached through:
John D. Holland, Esq.
Dady & Gardner, P.A.
5100 IDS Center
80 South Eight Street
Minneapolis, MN 55402
Office: 612-359-9000
Direct: 612-359-3504
Fax: 612-359-3507
E-mail: jholland@dadygardner.com
About Sultan Financial Corporation
Sultan Financial Corporation is a privately held company engaged in
the business of consumer goods rental. Since 1997, Sultan
Financial has been operating Aaron's Sales & Lease stores in
California.
Sultan Financial filed a voluntary petition for relief under
Chapter 11 of the Bankruptcy Code (Bankr. C.D. Cal. Case No.
18-18021) on July 13, 2018. In the petition signed by Randall C.
Sultan, CEO, the Debtor estimated $10 million to $50 million in
assets and liabilities. The case is assigned to Judge Ernest M.
Robles. Jeffrey N. Brown, Esq., and David A. Warfield, Esq., at
Thompson Coburn LLP, serve as the Debtor's counsel.
SURFACE DRILLING: Plan Confirmation Hearing Set for Oct. 23
-----------------------------------------------------------
Bankruptcy Judge Tony M. Davis entered an order approving Surface
Drilling of Texas, LLC's first amended disclosure statement dated
August 9, 2018.
Oct. 23, 2018 at 10:00 a.m. is set for the hearing on the
confirmation of the plan in the U.S. Bankruptcy Courtroom, Midland
Room P126, U.S. Courthouse, 100 E. Wall Street, Midland, Texas.
The deadline to object to the confirmation of the plan is Oct. 16,
2018.
The plan proposes for the liquidation of Surface Drilling's assets.
Unsecured creditors will be paid a pro rata share of all remaining
cash generated by the collection of funds from all sources on their
allowed claims only. Surface Drilling estimated payment of a total
dividend between 15% and 25% on all allowed creditors' unsecured
claims, according to the company's first amended disclosure
statement filed on Aug. 9.
A copy of the first amended disclosure statement is available for
free at:
http://bankrupt.com/misc/txwb17-70155-109.pdf
About Surface Drilling of Texas
Surface Drilling sought protection under Chapter 11 of the
Bankruptcy Code (Bankr. W.D. Tex. Case No. 17-70155) on Sept. 19,
2017. Tyson Cornwell, its manager, signed the petition. The
Debtor disclosed $1.24 million in assets and $2.39 million in
liabilities.
Founded in 2013, Surface Drilling of Texas, LLC, provides drilling
services to the energy industry. It is a small business debtor as
defined in 11 U.S.C. Section 101(51D), posting gross revenue of $4
million in 2016 and gross revenue of $2.14 million in 2015.
Judge Tony M. Davis presides over the case. Todd J. Johnston,
Esq., at McWhorter Cobb & Johnson, LLP, in Lubbock, Texas, serves
as counsel to the Debtor.
TANGO TRANSPORT: Trustee Must Respond to NIC Discovery
------------------------------------------------------
District Judge Amos L. Mazzant granted in part Defendants'
Navistar, Inc. and Navistar International Corporation's motion to
compel discovery responses in the case captioned CHRISTOPHER MOSER
as Plan Trustee of the Trust Under the Amended Joint Plan of
Liquidation of Tango Transport, LLC, ET AL., v. NAVISTAR
INTERNATIONAL CORPORATION, ET AL., Civil Action No. 4:17-CV-00598
(E.D. Tex.).
In November of 2016, Tango commenced this action as an adversary
proceeding in the Bankruptcy Court by filing an Original Complaint
against Defendants. Specifically, Tango sought avoidance of the
settlement agreement alleging they did not receive reasonably
equivalent value for the release of their claims. In December of
2016, the Bankruptcy Court confirmed the Plan and appointed
Christopher Moser as the Trustee of the Plan Trust, which succeeded
Tango in this action. In April of 2017, Moser filed an amended
complaint adding recovery of the value of the defective engine
claims, or in the alternative, the return of the releases.
On February 5, 2018, Moser produced, in pertinent part, the
following to Navistar: (1) electronic copies of emails of six
former Tango employees, (2) emails received from Tango's former
counsel, Bryan Cave, and Tango's former CRO, Morris Anderson, (3)
access to hard copy documents in boxes contained in two warehouses:
Dallas, with an index created by Tango, and Shreveport, for which
no index currently exists, and (4) remote access to Tango's
operational systems.
On April 6, 2018, Navistar served Moser with its Requests for
Production and Interrogatories. On May 7, 2018, Moser provided his
response. On June 18, 2018, Navistar filed a Motion to Compel.
Navistar alleges that Moser's Initial Disclosures and discovery
responses are insufficient because (1) they are not limited to
relevant information and fail to satisfy the requirements under
Rule 34, (2) Moser incorrectly invokes his role as trustee to avoid
providing meaningful discovery responses, and (3) Moser puts forth
spurious objections to Navistar's interrogatories and fails to
provide any substantive responses.
Navistar avers that Moser's Initial Disclosures constitute an
overproduction "of information vastly comprised of irrelevant
and/or disorganized electronic information." Based on such
production, Navistar contends that Moser failed to expend any
effort culling irrelevant and immaterial information or identifying
and producing relevant documents as required by federal and local
discovery rules. As a result, Navistar requests that the Court
order Moser to re-review his production and eliminate irrelevant
documents and to specifically identify the information that is
relevant to its discovery requests.
The Court orders Moser, to the extent he has not already done so,
to narrow the information produced to what is pertinent to
Navistar's discovery requests. Because Moser represents that such
information is in searchable and sortable form, the Court finds
that complying with such an order is not unduly burdensome.
Concerning the Dallas and Shreveport Boxes, Navistar contends that
Moser making such boxes available for inspection rather than
identifying the relevant contents and boxes is improper. Moser
responds that he produced such boxes as they were kept in the usual
course of business and that to require him to review every box to
determine the relevancy of the information contained therein would
be overly burdensome. Aside from stating that the boxes were kept
by Tango in the manner that Moser produced them, Moser fails to
provide any evidence to support the proposition that the boxes were
produced as kept in the usual course of business. As such, Moser
must either satisfy this burden or organize and label the documents
appropriately. If Moser satisfies his burden, he must also provide,
to the extent he has not already, a general description of the
filing system and indexes for the documents.
Navistar alleges that Moser avoids adequately responding to
Navistar's discovery by claiming that he as trustee lacks "direct
information" of Tango's business operations. Navistar avers that
Moser's argument is untenable since Moser "has both the power and
obligation to call upon Tango's knowledge to pursue his claims and
to respond to discovery." In other words, Navistar contends that
Moser should have sought Tango's assistance in attempting to fully
comply with his discovery obligations.
Moser responds that his objections based on his position as trustee
are appropriate. Specifically, Moser asserts that he responded to
Navistar's discovery to the best of his ability given his relative
access to the relevant information and limited resources.Despite
such efforts, Moser contends that his ability to draw upon Tango's
institutional knowledge is limited.
Pursuant to Rule 26(b)(1), "[p]arties may obtain discovery
regarding any nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the case,
considering . . . the parties' relative access to relevant
information" and "the parties' resources." Although Navistar argues
that Tango has an affirmative duty to cooperate with Moser for
discovery purposes, the cases Navistar relies on are
distinguishable from the case at hand since they involve Chapter 7,
not Chapter 11 bankruptcy. Moreover, neither party cites to case
law, and the Court finds none, where a court enforces such an
obligation on the debtor in the context of a Chapter 11 bankruptcy.
As such, the Court finds that Moser is only obligated to respond to
Navistar's discovery to the extent that he has access to such
information and in a manner that does not overly diminish the
limited resources of the trust. Moser represents that he contacted
Tango's former employees and counsel in an effort to adequately
respond to Navistar's counsel. The Court finds that such effort
complies with Rule 26 and the circumstances of this case. However,
the Court notes that Moser maintains the duty to supplement his
discovery responses if he comes across new and relevant
information.
The Court, however, declines Navistar's request that Moser responds
to all of Navistar's originally classified twenty-four
interrogatories. Navistar's motion to compel is, therefore, partly
granted.
A full-text copy of the Court's Memorandum Opinion and Order dated
July 27, 2018 is available at https://bit.ly/2MvAqDk from
Leagle.com.
Tango Transport, LLC, In Re, represented by Keith William Harvey,
The Harvey Law Firm, PC.
Christopher J Moser, as Plan Trustee of the Trust under the Amended
Joint Plan of Liquidation of Tango Transport, LLC, Plaintiff,
represented by Angela J. Somers -- asomers@rctlegal.com -- Reid
Collins & Tsai LLP, David Benjamin Thomas -- dthomas@rctlegal.com
-- Reid Collins & Tsai, LLP, J. Benjamin King -- jking@rctlegal.com
-- Reid Collins & Tsai, LLP & Yonah Jaffe -- yjaffe@rctlegal.com --
Reid Collins & Tsai LLP.
Navistar International Corporation, Navistar, Inc. & ITA Truck
Sales & Service, LLC, Defendants, represented by James Jay Lee --
jimlee@velaw.com -- Vinson & Elkins LLP, Lance Blake Williams --
lwilliams@mcsalaw.com -- McCranie Sistrunk Anzelmo Hardy McDaniel &
Welch, LLC, pro hac vice, Angela Nicole Offerman , Kane Russell
Coleman & Logan PC Houston, Michael P. Ridulfo -- mridulfo@krcl.com
-- Kane Russell Coleman & Logan PC Houston, Quincy T. Crochet --
qcrochet@mcsalaw.com -- McCranie Sistrunk Anzelmo Hardy McDaniel &
Welch, LLC & Rebecca Lynn Petereit , Vinson & Elkins LLP.
Navistar Leasing Company, Navistar Financial Corporation & Navistar
Leasing Services Corporation, Defendants, represented by Michael P.
Ridulfo, Kane Russell Coleman & Logan PC Houston, Angela Nicole
Offerman, Kane Russell Coleman & Logan PC Houston,James Jay Lee,
Vinson & Elkins LLP, Lance Blake Williams, McCranie Sistrunk
Anzelmo Hardy McDaniel & Welch, LLC & Rebecca Lynn Petereit, Vinson
& Elkins LLP.
Christopher J Moser, Trustee, represented by Angela J. Somers, Reid
Collins & Tsai LLP, J. Benjamin King, Reid Collins & Tsai, LLP &
Yonah Jaffe, Reid Collins & Tsai LLP.
About Tango Transport LLC
Tango Transport, LLC, provides dry van and flatbed services. It
offers over-the-road truckload services; and dedicated/private
fleet conversion, expedited, third party logistics, heavy hauling,
and brokerage services. The company also provides logistic
services, including warehouse and distribution, warehouse
management, inventory control, freight payment and audit, and
transportation control services; and reverse logistics solutions.
It serves Fortune 500 companies in the United States. The company
was founded in 1991 and is based in Shreveport, Louisiana. It
operates a terminal in Shreveport, Louisiana; and facilities in
Sibley, Louisiana; West Memphis, Arkansas; and Madisonville,
Kentucky.
Tango Transport, LLC sought protection under Chapter 11 of the
Bankruptcy Code (Bankr. E.D. Tex. Case No. 16-40642) on April 6,
2016. The petition was signed by B.J. Gorman, president of Gorman
Group, Inc., sole member of the Debtor. The Debtor is represented
by Keith William Harvey, Esq., at The Harvey Law Firm, P.C. The
Debtor estimated assets of less than $50,000 and debts of $10
million to $50 million.
On April 26, 2016, the Office of the U.S. Trustee appointed an
official committee of unsecured creditors. Heller Draper Patrick
Horn & Dabney, LLC, serves as counsel while Stillwater Advisory
Group, LLC, serves as financial advisor.
On Dec. 21, 2016, the court confirmed the Debtor's joint plan of
liquidation and the plan trust agreement, which called for the
appointment of Christopher J. Moser as plan trustee.
TECHNOLOGY WAY: Taps Fisher Auction Co. as Auctioneer
-----------------------------------------------------
Technology Way Holdings, LLC, seeks approval from the U.S.
Bankruptcy Court for the Southern District of Florida to hire an
auctioneer.
The Debtor proposes to employ Fisher Auction Co., Inc., to conduct
an auction sale of its personal and real property located at 4755
Technology Way, Boca Raton, Florida.
Compensation will be based on a 7% buyer's premium to be charged to
the successful buyer and to be added to the final bid price.
The 7% buyer's premium will be divided as follows: (i) 2% to the
Debtor's broker NAI Miami; (ii) 2% of the sales price will be paid
to Fisher Auction; (iii) 2% of the sales price will be paid to any
successful buyer's "procuring cause broker;" and (iv) 1% to
RealINSIGHT Market Place.
If the buyer is not represented by a procuring cause broker, then
2% of the 7% buyer's premium designated for the procuring cause
broker will be retained 1% by Fisher Auction and 1% by NAI Miami.
Lamar Fisher, an auctioneer employed with Fisher Auction, disclosed
in a court filing that he and other members of the firm are
"disinterested persons" as defined in section 101(14) of the
Bankruptcy Code.
The firm can be reached through:
Lamar P. Fisher
Fisher Auction Co., Inc.
2112 East Atlantic Boulevard
Pompano Beach, FL 33062
Florida: (954) 942-0917
Toll Free: (800) 331-6620
Fax: (954) 782-8143
Email: info@fisherauction.com
About Technology Way Holdings
Headquartered in Boca Raton, Florida, Technology Way Holdings, LLC,
owns commercial condominiums at 1477 Techonology Way, Boca Raton,
Florida, comprising of Units 1-201 and 1-202, approximately 4,595
square feet.
Technology Way Holdings filed for Chapter 11 bankruptcy protection
(Bankr. S.D. Fla. Case No. 17-18574) on July 7, 2017, estimating
its assets at up to $50,000 and its liabilities at between $1
million and $10 million. Emma T. Alvardo, manager, signed the
petition.
Judge Paul G. Hyman, Jr., presides over the case.
Thomas L. Abrams, Esq., at Gamberg & Abrams serves as the Debtor's
bankruptcy counsel. The Debtor hired NAI Miami as real estate
broker to market and sell its condominium units located at 1477
Techonology Way, Boca Raton, Florida.
THAMES VIEW: Case Summary & 3 Unsecured Creditors
-------------------------------------------------
Debtor: Thames View Inc.
fka Norwichtown Center, Inc.
193 Thames Street
Groton, CT 06340
Business Description: Thames View Inc.'s principal assets are
located at 189-198 Thames Street Groton,
Connecticut having an aggregate current
value of $1.22 million.
Chapter 11 Petition Date: August 19, 2018
Court: United States Bankruptcy Court
District of Connecticut (Hartford)
Case No.: 18-21360
Judge: Hon. James J. Tancredi
Debtor's Counsel: Joseph J. D'Agostino, Jr., Esq.
ATTORNEY JOSEPH J. D'AGOSTINO, JR., LLC
1062 Barnes Road, Suite 108
Wallingford, CT 06492
Tel: (203) 265-5222
Fax: 203-265-5236
Email: joseph@lawjjd.com
Total Assets: $1,225,500
Total Liabilities: $2,317,423
The petition was signed by Erik Mattila, managing member.
A full-text copy of the petition containing, among other items, a
list of the Debtor's three unsecured creditors is available for
free at:
http://bankrupt.com/misc/ctb18-21360.pdf
THX PROPERTIES: $3M Sale of 86 Denton Lots to Sumeer Approved
-------------------------------------------------------------
Judge Brenda T. Rhoades of the U.S. Bankruptcy Court for the
Eastern District of Texas authorized THX Properties, LLC's sale of
the remaining 86 townhome lots and improvements on Riney Road in
Denton County, Texas, located on what is now known as Solana Circle
in the City of Denton, Texas, to Sumeer Homes, Inc. for $3
million.
The sale is free and clear of all liens, claims and encumbrances.
The Debtor is specifically authorized to:
a. pay at closing all ordinary closing costs, including
realtor's fees, as described pursuant to the attached Contract, not
to exceed 8% of the sales price in aggregate, or $256,000 plus
property taxes pro-rated.
b. pay, or in the case of taxes, escrow for payment and/or
pro-rate per the Contract, at closing, the following secured
claims, including all principal, unpaid interest, costs and fees
payable under the relevant loan documents including such secured
lender's attorney's fees:
i. Denton County Tax Assessor, P.O. Box 90223, Denton,
Texas 76202, balance based on last year's taxes: $111,997. The
amount to be paid will be based on the amount as set forth on the
tax certificate provided in connection with the closing and will be
subject to proration at closing per the Contract.
ii. Ceasons Holdings, LLC, 6023 Timber Creek, Dallas,
Texas 75248, balance due: $550,000, plus accrued interest from July
1, 2018 to closing.
iii. Doyle Maggard, 8950 S. FM 372, Gainsville, Texas
76240, balance due: $400,000, including all principal, interest at
the default rate of 18% per annum, late charges, and all attorney's
fees and expenses due as of the time of such delivery.
iv. HE Wang, 5030 Lymbar Drive, Houston, Texas 77096,
balance due: $169,479, plus accrued interest from July 1, 2018 to
closing.
c. receive at closing and will hold in a DIP account the
remaining funds after payment of (a) and (b) above, which funds
will be subject to all liens, claims and encumbrances that may be
asserted against the Debtor including the liens of Jason Helal, JTU
Investment One, LLC, South Denton Land Partners and Wickwood
Development Corp. on the Property subject to the "carve out"
referred
to in paragraph (vi) above.
Contemporaneously with closing of the sale which includes the 20
Lots which are collateral for the Debtor's loan from Doyle R.
Maggard and wife, Brenda L. Maggard, the closing agent will wire
toMaggard full payment for the amount of Maggard's Note dated Oct.
24, 2016 in the original principal sum of $400,000, including all
principal, interest at the default rate of 18% per annum, late
charges, and all attorney's fees and expenses due as of the time of
such delivery. Upon receipt of such wire transfer and a reasonable
determination that Maggard has received good funds and confirmation
of same, Maggard will authorize the release of Maggard's lien.
The sale contemplated by the Order is not free and clear of any
covenants running with the land, including, but not limited to the
covenants, conditions, and restrictions stated in the Declaration
of Covenants, Conditions and Restrictions for Vista Del Arroyo
Townhomes, recorded in the Real Property Records of Denton County,
Instrument Number: 2016-69483, or the Amended Declaration
contemplated in the Contract, or the current plat of the VDA
Subdivision attached to the Contract.
Nothing in the Order approving a sale of the Property will in any
way modify the rights and/or restrictions on the Buyer' use of the
Property that exist under federal, state, or local law, except as
specifically provided by the Order.
After closing and as contemplated by the Contract, the Buyer will
construct the Amenities as defined in the Second Amendment to
Contract in accordance with its terms and further described in the
Contract. Pursuant to the Contract, the Debtor will construct and
pay for an irrigation system prior to the closing of the Property.
RTB Property Holdings, LLC and any other owner of a lot in the VDA
Subdivision retain their rights to file a proof of claim in the
case.
Effective upon the closing of the sale, the 2018 prorated taxes
will be paid at the closing and save and except that to the extent
that any ad valorem taxes are not paid in full for year 2018 at
closing, the liens securing such taxes will not attach to the
proceeds but will continue to be secured by the Property until
payment in full of all 2018 ad valorem tax liabilities associated
with the Property.
With respect to the payment by Republic Title of Texas, Inc. of
indebtedness bearing interest, or any other payment described in
the Seller's closing statement, such payments will be made by the
Title Company Checks or Federal wire transfers, as instructed by
the payees named in the Closing Statement.
All Payees will provide to the Title Company in writing signed by
the Payee, or its authorized representative, written payoff
instructions concerning its payments, which in the case of
interest–bearing debt will include the following information: (i)
the effective date of the payoff statement; (ii) the amount of
principal owed as of the Effective Date; (iii) the amount of
accrued interest owed as of and including the Effective date; (iv)
the per diem or daily interest accruing on the principal amount
owed if payment is not received on the Effective Date; (v) a date
subsequent to the Effective Date of at least five business days in
which the Title Company can provide the payoff to the Payee
according to the Payee's written instructions and beyond which the
Title Company must seek new payoff instructions from such Payee;
and (vi) wire instructions from such Payee.
All disbursements made by the Title Company will be made
simultaneously and there will be no partial or selective payments
as provided in the Order.
A copy of the two amendments to the Contract of Sale attached to
the Order is available for free at:
http://bankrupt.com/misc/THX_Properties_42_Order.pdf
About THX Properties
THX Properties, LLC, is a real estate company that owned in fee
simple 86 Townhome lots, common areas as well as architectural
plans relating to a real estate project located at Solana Circle,
Denton, Texas.
THX Properties sought protection under Chapter 11 of the Bankruptcy
Code (Bankr. E.D. Tex. Case No. 18-41409) on June 29, 2018. In the
petition signed by Jason Helal, its manager, the Debtor disclosed
$3.28 million in assets and $3.71 million in liabilities.
Judge Brenda T. Rhoades presides over the case.
Weldon L. Moore, III, Esq., at Sussman & Moore, L.L.P., serves as
counsel to the Debtor.
TOP SHELV: Four Courts, Farley Lose Bid for Summary Judgment
------------------------------------------------------------
Defendants Four Courts, Inc. and Farley Manufacturing, Inc. request
summary judgment as to all counts pertaining to them in the
adversary proceeding captioned TOP SHELV WORLDWIDE, LLC, Plaintiff,
v. FOUR COURTS, INC., an Ontario Corporation, FARLEY MANUFACTURING,
INC., an Ontario Corporation, ANTHONY GUSHOW & SONS, INC., SUGAR
CONSTRUCTION, INC., DEWITT LUMBER COMPANY, UNITED RENTALS, INC.,
NORTHERN CONCRETE PIPE, INC., SEQUIN LUMBER COMPANY, INC., VALLEY
ELECTRICAL CONTRACTORS, INC., and ROBERT ANDERSON AND NANCY
ANDERSON, Defendants, Adversary Proceeding Case No. 18-2005-dob
(Bankr. E.D. Mich.) brought by Plaintiff Top Shelv Worldwide, LLC.
Bankruptcy Judge Daniel S. Opperman denies the motion for summary
judgment because there are genuine issues of material fact.
Top Shelv's amended complaint seeks to declare the construction
lien of Farley Manufacturing invalid (Count I), objects to the
amended claim of Four Courts (Count II), and seeks a determination
of the priority of the various mortgages and liens in this case
(Count VII).
Defendants argue that Four Courts and Farley Manufacturing are
related companies with common ownership and are referred to as The
Farley Group. Defendants note that they amended their claim
numerous times to clarify the relationship between the two
entities. They also argue that the construction lien was timely
filed and dispute the last day work was completed. More
importantly, Defendants make two additional arguments seemingly for
the first time. First, they argue that the 2016 Plan, in which Top
Shelv agreed that Four Courts had a valid construction lien, should
have res judicata effect in this case as to the validity of the
construction lien. Second, they argue that the construction liens
and mortgage claims should only attach to the land and any
structures other than the dome, while Four Courts' UCC fixture
claim should attach to the dome structure components. They argue
that the state court order issued by the Bay County Circuit Court,
granting partial summary disposition pursuant to a motion filed by
co-Defendant Sugar Construction, should not be given preclusive
effect by this Court because it is not a final judgment. They
further argue that the fixture filing was recorded prior to the
construction liens being recorded, which perfected the security
interest in the dome.
Defendants bear the burden to prove that res judicata bars the
second action but they have made an argument that is irreconcilable
with their res judicata argument. More specifically, Defendants
assert that the construction liens and mortgage claims, including
their own, only attach to the land and any structures other than
the dome while the UCC fixture filing attaches to the dome
structure components. Defendants argue that because the fixture
filing was recorded first, it should be given priority over the
construction liens. From a logical standpoint, however, if the
Court were to give the 2016 Plan preclusive effect with regard to
the validity of the construction lien, it must also give it
preclusive effect with regard to the priority of that lien.3 In
sum, while the Court may have initially been inclined to find that
res judicata applies, Defendants have introduced new facts and
evidence in the second case that were not before the Court in the
first case. They also seek a determination regarding the priority
of the liens that varies from the priority set forth in the 2016
Plan. Defendants' res judicata argument is, therefore, of no avail.
Because there are genuine issues of material fact with regard to
the timeliness and validity of the construction lien, the Court
denies the Motion for Summary Judgment as to Counts I and II.
Defendants cite to several provisions of the UCC to argue that the
fixture filing, which they assert attaches to the dome structure,
should be given priority over the valid construction liens in this
case. The UCC, however, specifically states that a security
interest does not exist "in ordinary building materials
incorporated into an improvement on land." The "Scope of
Work/Contract" included along with Four Courts' proof of claim
lists fabric membrane, doors, lighting, and mechanical equipment as
some of the dome components. These items appear to be ordinary
building materials. Defendants argue, however, that the dome is
movable and cite to the case of Those Certain Interested
Underwriters v. The Farley Grp. for that proposition. The court in
that case found the dome to be movable and therefore a good while
making a determination as to the applicable statute of limitations.
That case did not speak to the issue of whether the dome
components were ordinary building materials incorporated into an
improvement on land. The Court finds that Defendants have not
satisfied their burden of proof in establishing that they have a
security interest in the dome. Because the nature of the dome
raises genuine issues of material fact, the Court denies the Motion
for Summary Judgment as to Count VII.
A full-text copy of the Court's Opinion dated August 1, 2018 is
available at https://bit.ly/2Mz3YQy from Leagle.com.
Top Shelv Worldwide, LLC, Debtor In Possession, represented by
Edward J. Gudeman -- ejgudeman@gudemanlaw.com -- Gudeman &
Associates, P.C. & Brian Ashley Rookard, Gudeman & Associates,
P.C.
About Top Shelv Worldwide
Top Shelv Worldwide, LLC, sought protection under Chapter 11 of the
Bankruptcy Code for a second time (Bankr. E.D. Mich. Case No.
17-21434) on July 14, 2017. Stanley Dulaney, its member, signed
the 2017 petition. At the time of the filing, the Debtor estimated
assets of less than $1 million and liabilities of $1 million to $10
million.
Judge Daniel S. Opperman presides over the case. Edward J.
Gudeman, Esq., at Brian A. Rookard, Esq., at Gudeman and
Associates, P.C., serve as the Debtor's bankruptcy counsel.
No official committee of unsecured creditors has been appointed.
Top Shelv previously sought bankruptcy protection (Bankr. E.D.
Mich. Case No. 15-21770) on Aug. 31, 2015. A plan was confirmed
May 6, 2016.
TRIBUNE MEDIA: District Court Affirms Ruling Confirming DCL Plan
----------------------------------------------------------------
Appellants in the case captioned LAW DEBENTURE TRUST COMPANY OF NEW
YORK & DEUTSCHE BANK TRUST COMPANY AMERICAS, Chapter 11,
Appellants, v. TRIBUNE MEDIA COMPANY, et al., Appellees, Case Nos.
12-cv-128 GMS, 12-mc-108 GMS, 12-cv-1072 GMS, 12-cv-1073 GMS,
12-cv-1100 GMS, 12-cv-1106 GMS (D. Del.) appeal asking the court to
find that the Bankruptcy Court erred in confirming the DCL or
Debtor/Committee/Lender Plan. District Judge Gregory M. Sleet
affirms the Bankruptcy Court's ruling.
On appeal, Appellants challenge the Bankruptcy Court's
determination that the subordination agreements do not have to be
enforced. Specifically, Appellants make three arguments: (1) that
the bankruptcy court erroneously refused to enforce the
subordination agreements, in violation of 11 U.S.C. section
1129(b)(1); (2) even if the subordination agreements were not
enforceable, the bankruptcy court erred in holding the plan does
not "discriminate unfairly" against the Senior Notes; and (3) that
the bankruptcy court erred in holding that a contract claim
resulting from Tribune's termination of interest-rate hedges (the
"Swap Claim") was senior debt under the two subordination
agreements.
The Court finds that an interpretation of Section 1129(6)(1) that
would render such subordination unenforceable cannot be reconciled
with the clear legislative intent that such agreements would be
enforced against cramdown plans under that provision. Simply put,
the Bankruptcy Court properly determined that it was not required
to enforce the subordination agreements pursuant to section
510(a).
Appellants also take issue with the Bankruptcy Court's holding that
the Plan did not discriminate unfairly against Senior Noteholders.
Appellants assert that "[u]nfair discrimination under Section
1129(b)(1) turns on the 'difference in the plan's treatment' of the
dissenting class versus its treatment of another class of the same
priority-excluding funds turned over among creditors under
subordination agreements." In contrast, Appellee asserts that when
a plan provides different treatment to similarly situated classes,
the court presumes that the discrimination is unfair, but only if
the difference in treatment results in "a materially lower
percentage recovery for the dissenting class. The court must,
therefore, decide under the circumstances of this case whether the
amount designated for the Appellants is materially lower recovery
than designated for the holders of Other Parent Claims. Minor or
immaterial differences in the plan do not rise to the level of
unfair discrimination. Here, the Appellants-the dissenting
class-received a percentage recovery that was, at most, 2.3
percentage points lower than the recovery to which they claim they
are entitled. The Bankruptcy Court concluded that "[t]he
discriminatory effect on the dissenting class is immaterial and,
therefore, no rebuttable presumption of unfair discrimination
arises." While the actual amount of money at issue is large, the
percentage difference is not significant or material.
On the last issue, Appellants argue that the Swap Claim was an
"accrued expense incurred in the ordinary course of business[,]."
The court cannot agree. First, Tribune's financial statements
accounted for the Swap Claim as either short-term or long-term debt
and not as an "accrued expense. Second, the Swap Claim was not
incurred in the "ordinary course of business." The Swap Claim was
incurred in connection with the Credit Agreement and the financing
of the $12 billion LBO, which was anything but "ordinary" and the
very transaction the Trustees asserted to be the basis for billions
of dollars of fraudulent conveyance causes of action. Finally,
Appellants cite nothing to support the proposition that interest
rate hedging agreements, particularly hedging agreements the size
of the Swap Agreement, were an ordinary business practice of
Tribune.
The court, therefore, concludes that the Swap Claim is a senior
obligation as defined by the EGI subordination agreement and
believes the Bankruptcy Court properly concluded that the Plan did
not unfairly discriminate against Senior Noteholders.
A full-text copy of the Court's Memorandum dated July 30, 2018 is
available at https://bit.ly/2OLxHmD from Leagle.com.
Tribune Company, et al, Debtor, represented by Janet Kathleen
Stickles -- kstickles@coleschotz.com --Cole, Schotz, Meisel, Forman
& Leonard, P.A., James F. Bendernagel --JBENDERNAGEL@SIDLEY.COM --
Sidley Austin LLP, pro hac vice, James O. Johnston --
jjohnston@jonesday.com -- Jones Day, pro hac vice, Jeffrey C. Steen
-- jsteen@sidley.com -- Sidley Austin LLP, pro hac vice & Ronald
S. Flagg , pro hac vice.
Wilmington Trust Company, solely in its capacity as successor
Indenture Trustee in the PHONES Notes, Appellant, represented by
William D. Sullivan -- bsullivan@sha-llc.com -- Sullivan, Hazeltine
Allinson LLC & Elihu Ezekiel Allinson, III -- eallinson@sha-llc.com
-- Sullivan, Hazeltine Allinson LLC.
EGI-TRB, LLC, Appellant, represented by David W. Carickhoff, Jr. ,
Archer & Greiner, P.C.
Delaware Trust Company, Appellant, represented by Garvan F.
McDaniel , The Hogan Firm, Mark T. Stancil , Robbins, Russell,
Englert, Orseck, Untereiner & Sauber LLP, pro hac vice, Mary E.
Augustine , A M Saccullo Legal, LLC, Matthew M. Madden , Robbins,
Russell, Englert, Orseck, Untereiner & Sauber LLP, pro hac vice &
Roy T. Englert, Jr. , Robbins, Russell, Englert, Orseck, Untereiner
& Sauber LLP, pro hac vice.
Debtors and Debtors in Possession and Certain Non-Debtor
Affiliates, Appellee, represented by Janet Kathleen Stickles ,
Cole, Schotz, Meisel, Forman & Leonard, P.A.,Norman L. Pernick ,
Cole, Schotz, Meisel, Forman & Leonard, P.A. & Patrick J. Reilley ,
Cole, Schotz, Meisel, Forman & Leonard, P.A.
Tribune Media Company, headquartered in Chicago, IL, benefits from
television assets including 42 broadcast stations in 33 markets
reaching 26% (with the reinstated UHF discount) of U.S. households
and the WGN America network with subscribers approaching 80
million. Tribune Media holds minority equity interests in several
media enterprises including TV Food Network which contribute cash
distributions. The company emerged from Chapter 11 bankruptcy
protection at the end of 2012 and certain creditors prior to
Chapter 11 filing are now shareholders with funds of Oaktree
Capital Management LP (roughly 16%), Angelo, Gordon & Co. LP (7%),
and JPMorgan Chase (7%) representing three of the five largest
shareholders. Reported revenue totaled $1.9 billion for 2016.
TRITON INTERNATIONAL: S&P Alters Outlook to Pos. & Affirms BB+ ICR
------------------------------------------------------------------
S&P Global Ratings affirmed its ratings, including the 'BB+' issuer
credit rating, on Purchase, N.Y.-based marine cargo container
lessor Triton International Ltd. S&P revised the outlook to
positive from stable.
S&P said, "At the same time, we affirmed our 'BBB-' rating on
subsidiary Triton Container International Ltd.'s (TCIL) senior
secured debt. The recovery rating on TCIL's debt is '1', reflecting
our expectation of very high (90%-100%; rounded estimate: 95%
capped) recovery in the event of a payment default. Additionally,
we affirmed our 'BBB-' rating on subsidiary TAL International Group
Inc.'s (TAL) secured debt. The recovery rating of '2' reflects our
expectation of substantial (70%-90%; rounded estimate: 80%)
recovery in the event of a payment default."
Strong demand and operational improvements have lifted Triton's
revenues, earnings, and cash flow. This has more than offset
partially debt-financed heavy capital spending that began in 2017,
resulting in improved credit metrics. S&P expects this trend to
continue through 2019, assuming global trade growth continues to
improve modestly without material negative effects from potential
higher tariffs.
S&P said, "The positive outlook on Triton reflects our expectation
that global containerized trade, utilization, and lease rates will
remain strong, barring any potential expansion of trade tariffs. We
expect relatively stable credit metrics for Triton, with EBIT
interest coverage of around 2x and FFO to debt in the mid-teens
percent area through 2019.
"We could raise our rating on Triton over the next year if global
trade is not significantly impacted by trade tariffs, enabling the
company to maintain EBIT interest coverage of at least 2.0x and FFO
to debt above 13% for a sustained period.
"We could revise the outlook on Triton to stable over the next year
if global economic growth weakens due to expanding trade tariffs,
causing demand to weaken and utilization and lease rates to
decline. These events would have to result in Triton's EBIT
interest coverage declining to below 1.7x or its FFO-to-debt ratio
declining to below 13% for a sustained period."
UNITED CHARTER: Judge Denies Use of Cash Collateral
---------------------------------------------------
The Hon. Ronald H. Sargis of the U.S. Bankruptcy Court for the
Eastern District of California denied the Motion for Authority to
Use Cash Collateral filed by United Charter LLC.
About United Charter
United Charter LLC, owner of certain properties in Stockton,
California, filed a Chapter 11 petition (Bankr. E.D. Cal. Case No.
17-22347) on April 7, 2017. In the petition signed by Raymond
Zhang, its managing member, the Debtor estimated assets and
liabilities ranging from $1 million to $10 million. The case is
assigned to Judge Ronald H. Sargis. The Debtor is represented by
Jeffrey J. Goodrich, Esq., at Goodrich & Associates.
On Feb. 22, 2018, the Debtor filed a Chapter 11 plan of
reorganization and disclosure statement.
WILLIAM KNACK: Sale of Chappaqua Property to Denefrios Approved
---------------------------------------------------------------
Judge Robert D. Drain of the U.S. Bankruptcy Court for the Southern
District of New York authorized William A. Knack's sale of his
interest in the real property located at 115 Bedford Road,
Chappaqua, New York, to Daniel Denefrio and Marsha Denefrio.
The sale is free and clear of all Liens, with all such Liens to
attach to the sale proceeds.
The Debtor is authorized and directed to satisfy any uncontested
Liens against the Property at or as soon as practicable after the
closing, including (i) any outstanding mortgages, (ii) any
outstanding real estate property taxes, (iii) any transfer and
recording fees or taxes, (iv) any outstanding electricity, gas,
water or other utility usage fees, (v) other standard and necessary
costs, fees, taxes and charges associated with the closing of the
sale of the Property.
If the Debtor disputes any amount of a Lien, he is directed to
place in escrow sales proceeds equal to the amount that would be
paid to the holder of such Lien if such Lien were not in dispute,
subject to the parties' resolution of such dispute or further order
of the Court (and such escrow will constitute payment for purposes
of title insurance).
Each creditor having a Lien on the Property is authorized and
directed to promptly execute and deliver such documents and take
all other actions as may be reasonably requested by the Debtor or
the Purchaser to evidence the release of its Liens in and on the
Property.
The Debtor's counsel will file a Closing Report within 10 days of
the sale transaction closing.
The 14-day stay of the Order under Bankruptcy Rule 6004(h) is
waived, for cause, and the Order is effective immediately upon its
entry.
William A. Knack sought Chapter 11 protection (Bankr. S.D.N.Y. Case
No. 17-23069) on July 11, 2017. Judge Julie Cvek Curley, Esq., at
Delbello Donnellan Weingarten Wise & Wiederkehr, LLP, as counsel.
WOODBRIDGE GROUP: $2.1M Sale of Donnington's Basalt Property Okayed
-------------------------------------------------------------------
Judge Kevin J. Carey of the U.S. Bankruptcy Court for the District
of Delaware authorized Woodbridge Group of Companies, LLC and its
affiliated debtors to sell Donnington Investments, LLC's real
property located at 350 Market Street, #30l—3 12, Basalt,
Colorado, together with the right, title, and interest in and to
the buildings located thereon and any other improvements and
fixtures located thereon, and any and all of the right to the
tangible personal property and equipment remaining on the real
property, to TRG 208 Midland, LLC, or assignee for $2.1 million.
The sale is free and clear of all liens, claims, interests, and
encumbrances.
All proceeds of the Sale (net of the Broker Fees and Other Closing
Costs) will be paid to the Debtors into the general account of
Debtor Woodbridge Group of Companies, LLC, and such net proceeds
will be disbursed and otherwise treated by the Debtors in
accordance with the Final DIP Order.
The Debtors are authorized and empowered to pay the Broker Fees in
an amount not to exceed an aggregate amount of 5% of gross sale
proceeds by (i) paying the Purchaser's Broker Fee in an amount not
to exceed 2.5% of the gross sale proceeds and (ii) paying the
Seller's Broker Fee in an amount not to exceed 3.5% of the gross
sale proceeds.
Any title insurer, escrow agent, or other intermediary
participating in a closing of the Sale of the Property is
authorized to disburse all funds at the closing of the Sale
pursuant to the applicable settlement statement or escrow
instructions provided by the parties to such Sale.
The terms and conditions of the Order will be immediately effective
and enforceable upon its entry notwithstanding any applicability of
Bankruptcy Rule 6004(h).
A copy of the Agreement attached to the Order is available for free
at:
http://bankrupt.com/misc/Woodbridge_Group_2295_Order.pdf
About Woodbridge Group
Headquartered in Sherman Oaks, California, The Woodbridge Group
Enterprise -- http://www.woodbridgecompanies.com/-- is a
comprehensive real estate finance and development company. Its
principal business is buying, improving, and selling high-end
luxury homes. The Woodbridge Group Enterprise also owns and
operates full-service real estate brokerages, a private investment
company, and real estate lending operations. The Woodbridge Group
Enterprise and its management team have been in the business of
providing a variety of financial products for more than 35 years,
and have been primarily focused on the luxury home business for the
past five years. Since its inception, the Woodbridge Group
Enterprise has completed more than $1 billion in financial
transactions. These transactions involve real estate, note buying
and selling, hard money lending, and alternative financial
transactions involving thousands of investors.
Woodbridge Group of Companies and certain of its affiliates filed
Chapter 11 bankruptcy petitions (Bankr. D. Del. Lead Case No.
17-12560) on Dec. 4, 2017. Woodbridge estimated assets and
liabilities at between $500 million and $1 billion. The Chapter 11
cases are being jointly administered.
Judge Kevin J. Carey presides over the case.
Samuel A. Newman, Esq., Oscar Garza, Esq., Daniel B. Denny, Esq.,
Jennifer L. Conn, Esq., Eric J. Wise, Esq., Matthew K. Kelsey,
Esq., and Matthew P. Porcelli, Esq., at Gibson, Dunn & Crutcher,
LLP, and Sean M. Beach, Esq., Edmon L. Morton, Esq., Ian J.
Bambrick, Esq., and Allison S. Mielke, Esq., at Young Conaway
Stargatt & Taylor, LLP, serve as the Debtors' bankruptcy counsel.
Homer Bonner Jacobs, PA, as special counsel, Province, Inc., as
expert consultant, Moelis & Company LLC, as investment banker.
The Debtors' financial advisors are Larry Perkins, John Farrace,
Robert Shenfeld, Reece Fulgham, Miles Staglik, and Lissa Weissman
at SierraConstellation Partners, LLC. Beilinson Advisory Group is
serving as independent management to the Debtors. Garden City
Group, LLC, is the Debtors' claims and noticing agent.
Pachulski Stang Ziehl & Jones is counsel to the Official Committee
of Unsecured Creditors; and FTI Consulting, Inc., serves as its
financial advisor.
An official committee of unsecured creditors was appointed in the
Chapter 11 cases on Dec. 14, 2017. On Jan. 23, 2018, the Court
approved a settlement providing for the formation of an ad hoc
noteholder group and an ad hoc unitholder group.
WOODBRIDGE GROUP: $400K Sale of White's Carbondale Property Okayed
------------------------------------------------------------------
Judge Kevin J. Carey of the U.S. Bankruptcy Court for the District
of Delaware authorized Woodbridge Group of Companies, LLC and its
affiliated debtors to sell White Dome Investments, LLC's real
property located at 32 Fenwick Court, Carbondale, Colorado,
together with the right, title, and interest in and to the
buildings located thereon and any other improvements and fixtures
located thereon, and any and all of right, title, and interest in
and to the tangible personal property and equipment remaining on
the real property, to Gerald Burk and Beverly Burk for $400,000.
The sale is free and clear of all liens, claims, interests, and
encumbrances.
All proceeds of the Sale (net of the Broker Fees and Other Closing
Costs) will be paid to the Debtors into the general account of
debtor Woodbridge Group of Companies, LLC, and such net proceeds
will be disbursed and otherwise treated by the Debtors in
accordance with the Final DIP Order.
The Debtors are authorized and empowered to pay the Broker Fees in
an amount not to exceed an aggregate amount of 5% of gross sale
proceeds by (i) paying the Broker Fee in an amount not to exceed
2.5% of the gross Sale proceeds out of such proceeds and (ii)
paying the Broker Fee in an amount not to exceed 2.5% of the gross
Sale proceeds out of such proceeds.
Any title insurer, escrow agent, or other intermediary
participating in a closing of the Sale of the Property is
authorized to disburse all funds at the closing of the Sale
pursuant to the applicable settlement statement or escrow
instructions provided by the parties to such Sale.
The terms and conditions of the Order will be immediately effective
and enforceable upon its entry notwithstanding any applicability of
Bankruptcy Rule 6004(h).
A copy of the Agreement attached to the Order is available for free
at:
http://bankrupt.com/misc/Woodbridge_Group_2294_Order.pdf
About Woodbridge Group
Headquartered in Sherman Oaks, California, The Woodbridge Group
Enterprise -- http://www.woodbridgecompanies.com/-- is a
comprehensive real estate finance and development company. Its
principal business is buying, improving, and selling high-end
luxury homes. The Woodbridge Group Enterprise also owns and
operates full-service real estate brokerages, a private investment
company, and real estate lending operations. The Woodbridge Group
Enterprise and its management team have been in the business of
providing a variety of financial products for more than 35 years,
and have been primarily focused on the luxury home business for the
past five years. Since its inception, the Woodbridge Group
Enterprise has completed more than $1 billion in financial
transactions. These transactions involve real estate, note buying
and selling, hard money lending, and alternative financial
transactions involving thousands of investors.
Woodbridge Group of Companies and certain of its affiliates filed
Chapter 11 bankruptcy petitions (Bankr. D. Del. Lead Case No.
17-12560) on Dec. 4, 2017. Woodbridge estimated assets and
liabilities at between $500 million and $1 billion. The Chapter 11
cases are being jointly administered.
Judge Kevin J. Carey presides over the case.
Samuel A. Newman, Esq., Oscar Garza, Esq., Daniel B. Denny, Esq.,
Jennifer L. Conn, Esq., Eric J. Wise, Esq., Matthew K. Kelsey,
Esq., and Matthew P. Porcelli, Esq., at Gibson, Dunn & Crutcher,
LLP, and Sean M. Beach, Esq., Edmon L. Morton, Esq., Ian J.
Bambrick, Esq., and Allison S. Mielke, Esq., at Young Conaway
Stargatt & Taylor, LLP, serve as the Debtors' bankruptcy counsel.
Homer Bonner Jacobs, PA, as special counsel, Province, Inc., as
expert consultant, Moelis & Company LLC, as investment banker.
The Debtors' financial advisors are Larry Perkins, John Farrace,
Robert Shenfeld, Reece Fulgham, Miles Staglik, and Lissa Weissman
at SierraConstellation Partners, LLC. Beilinson Advisory Group is
serving as independent management to the Debtors. Garden City
Group, LLC, is the Debtors' claims and noticing agent.
Pachulski Stang Ziehl & Jones is counsel to the Official Committee
of Unsecured Creditors; and FTI Consulting, Inc., serves as its
financial advisor.
An official committee of unsecured creditors was appointed in the
Chapter 11 cases on Dec. 14, 2017. On Jan. 23, 2018, the Court
approved a settlement providing for the formation of an ad hoc
noteholder group and an ad hoc unitholder group.
WRIGHTWOOD GUEST: 9th Cir. Affirms Approval of Settlement Agreement
-------------------------------------------------------------------
The consolidated bankruptcy appeal captioned IN RE WRIGHTWOOD GUEST
RANCH, LLC, Debtor, REID AND HELLYER, APC, Appellant, v. RICHARD J.
LASKI, Chapter 11 Trustee; ARENT FOX, LLP, Appellees. IN RE
WRIGHTWOOD GUEST RANCH, LLC, Debtor, WALTER WILHELM BAUER, a
Professional Corporation, Appellant, v. RICHARD J. LASKI, Chapter
11 Trustee; ARENT FOX, LLP, Appellees, Nos. 16-56856, 16-56869 (9th
Cir.) concerns a challenge by law firms Reid & Hellyer APC and
Walter Wilhelm Bauer who represented debtor Wrightwood Guest Ranch,
LLC, and the unsecured creditors' committee, respectively, to a
court-approved settlement of an involuntary Chapter 11 bankruptcy.
Because neither firm, on its own behalf, explicitly objected to the
settlement or entered an appearance, and because the record
evidence that the bankruptcy court and trustee understood the firms
to be implicitly objecting is not clear enough to overcome those
failures, the firms forfeited their objection to the settlement
agreement.
The United States Court of Appeals, Ninth Circuit, thus, finds that
the bankruptcy court did not err in approving the settlement
agreement. The Ninth Circuit, therefore, affirms the district
court.
The crucial issue, in this case, is whether the law firms forfeited
their objection to the bankruptcy court's settlement order given
that neither firm, in its own capacity, objected to the settlement
or attended the hearing concerning it.
In August of 2015, creditors filed an involuntary bankruptcy
petition against the debtor, Wrightwood , under Chapter 11 of the
bankruptcy code. Richard Laski, here the appellee, was appointed
trustee. GreenLake Real Estate Fund, LLC, which is not party to
these appeals, submitted a valid $9.6-million-dollar claim secured
by the estate's principal asset, a 300-acre piece of real property.
After some time, it became clear to Laski that selling that
property to a third-party was unlikely, but Laski eventually
reached an agreement with GreenLake under which it would purchase
the property through an affiliated entity. Laski and GreenLake
agreed to settlement terms, which depended on the proposed sale,
and moved for approval of that settlement in the bankruptcy court.
The Ninth Circuit finds that the law firms have forfeited their
claims regarding the propriety of the settlement order because
neither firm attended the hearing or objected to the settlement in
its own capacity. Although the record shows that the bankruptcy
court harbored concern about how administrative claimants like the
law firms would be paid under the settlement, it does not follow
that the court understood that each firm intended to object on its
own behalf. They, therefore, have not preserved those rights.
The record lacks any clear indication that either WWB or R&H meant
to object on its own behalf. Neither firm explicitly stated at the
July 19 hearing that it was appearing on its own behalf. Neither
firm filed a written objection to the settlement or announced at
the hearing that it meant to object on its own behalf. Unlike in
Point Center, where the appellants explicitly informed the
bankruptcy court about their positions, albeit in a tardy manner,
here neither law firm ever said that it intended to pursue its own
interests. Forfeiture, therefore, applies because the law firms did
not timely assert their rights to object to the settlement
agreement.
Regarding the approval of the settlement agreement, the bankruptcy
court reasonably concluded that the settlement would prevent
litigation and benefit both the unsecured and senior secured
creditors. On plain-error review, one cannot say that the
settlement reflected such a grossly impermissible balance of the
interests of the various stakeholders involved in this bankruptcy,
such that it constitutes a "miscarriage of justice" warranting the
Ninth Circuit's reversal. The judgment of the district court is,
therefore, affirmed.
A full-text copy of the Court's Opinion dated July 25, 2018 is
available at https://bit.ly/2w7AjDO from Leagle.com.
Scott Talkov –- stalkov@rhlaw.com -- (argued) and Douglas A.
Plazak -- dplazak@rhlaw.com -- Reid & Hellyer APC, Riverside,
California; Riley C. Walter and Matthew P. Bunting , Walter Wilhelm
Law Group, Fresno, California; for Appellant.
Moriah Douglas Flahaut (argued) and Aram Ordubegian, Arent Fox LLP,
Los Angeles, California, for Appellees.
About Wrightwood Guest Ranch
Wrightwood Guest Ranch LLC, a California limited liability company,
provides recreational services such as Snow Play, Zip Line,
endurance races, logging and other outdoor events at a 300-acre
property it owns in Wrightwood area of Los Angeles County. WGR
also operates a wedding and special event center at a 2.45-acre
property at Wrightwood area.
WGR is 60% owned by Richard and Judy Halllett and 40% owned by GREF
WGR I, LLC, an affiliate of secured creditor GreenLake Real Estate
Fund, LLC. WGR owns 100% of the interests in Wrightwood Guest
Ranch Holdings, LLC, which in turns owns 100% of the interests in
Wrightwood Canopy Tours, LC.
Being concerned about GreenLake's threat of foreclosure, unsecured
creditors Masterpiece Marketing, Larry Rundle, and Snyder
Dorenfeld, filed an involuntary petition against Wrightwood Guest
Ranch LLC (Bankr. C.D. Cal. Case No. 15-17799) on Aug. 5, 2015.
The Petitioners' counsel is Douglas A Plazak, Esq., at Reid &
Hellyer, APC, in Riverside, California.
The Bankruptcy Court on Aug. 31, 2015, granted Wrightwood Guest
Ranch's request for relief under Chapter 11 and vacated the
Involuntary Petition filed against the Debtor.
The case is assigned to Judge Scott C. Clarkson.
The Debtor tapped Walter & Wilhelm Law Group as bankruptcy counsel;
Hall & Company as accountants; and Baker, Manock & Jensen as
special counsel.
XPLORNET COMMUNICATION: S&P Affirms 'B-' ICR, Outlook Stable
------------------------------------------------------------
S&P Global Ratings affirmed its 'B-' long-term issuer credit rating
on Xplornet Communication Inc. and revised its assessment of XCI's
liquidity to adequate from less than adequate. The outlook is
stable.
S&P revised its liquidity assessment on the company based on its
view that XCI's expected sources-to-uses of liquidity over the next
12 months will be about 1.6x. Contributing factors include stronger
operating performance because the company has now started providing
services on two new high throughput satellites (EchoStar XIX in May
2017 and Viasat-2 soft-launched in March 2018) leading to higher
average revenue per user (ARPU) and lower churn rates. At the same
time, the company's capital expenditure in 2018-2019 is
significantly lower than in 2017. S&P assumes sources less uses
will remain positive over the next 12 months even if its forecast
EBITDA declines 15%.
The stable outlook on XCI reflects S&P Global Ratings' view that
successful deployment of new satellite capacity should enable
continued revenue and earnings growth as the company provides
higher margin services and experiences lower churn. S&P expects XCI
to exit 2018 with about 7.5x adjusted debt-to-EBITDA. In addition,
moderation of capital expenditure spending should allow the company
to generate breakeven free operating cash flow (FOCF) in 2018 and
positive FOCF in 2019.
S&P said, "We could take a positive rating action in the next 12
months if we expect the company to continue to generate growing
EBITDA and cash flow such that adjusted debt-to-EBITDA improves
below 7x and positive annual FOCF is at least C$50 million,
supported by the company's 10%-15% revenue growth and low churn
rates.
"We could lower the rating if the company's revenue and earnings
deteriorate reflecting lower ARPU or higher churn rates. We would
likely lower the ratings if FFO cash interest coverage drops below
1.5x indicating weaker operations or if liquidity deteriorates due
to underperformance."
YOCHANAN WALDMAN: $370K Sale of Monsey Property Approved
--------------------------------------------------------
Judge Robert D. Drain of the U.S. Bankruptcy Court for the Southern
District of New York authorized Yochanan Waldman and Rivkah Waldman
to sell the real property located at 6 Thomas Court, Monsey, New
York, to Congregation Nachlas Moshe, Inc., for $370,000.
The sale is free and clear of all liens, claims, interests and
encumbrances.
The sale price comprises $477,950 and per diem interest at the rate
of $48 from July 14, 2018, through the date of the sale closing,
plus the other payments provided for in the next decretal
paragraph.
In addition to the Sales Price, the Buyer is directed to pay at the
closing, as a condition of the approval of the sale, (i) the usual
and customary expenses of closing, including, but not limited to,
transfer taxes, tax adjustments and recordation fees, (ii) the
reasonable fees and expenses of special real estate counsel for the
Debtors related to the sale, not to exceed $2,500.00, and (iii) the
reasonable fees of Elizabeth A. Haas, Esq., PLLC, not to exceed the
sum of $5,000, plus all reasonable and necessary out-of-pocket
expenses, in each case related to the Motion and the sale.
The Debtors will provide not less than five business days' notice
to counsel for Caliber of the date, time and place of the closing
of the sale.
The Debtors are authorized and directed to pay to Caliber at the
sale closing from the Sales Price the amount of $310,921, which
will be applied by Calber against its outstanding secured claim;
provided, that such payment and application will be without
prejudice and subject to the resolution, by settlement or final
order, of the Payment Dispute, including Caliber's disgorgement of
any such amounts paid that are ultimately determined not to have
been owing to Caliber.
The remainder of the Sales Price will be paid to the counsel for
the Debtors, Elizabeth A. Haas, Esq., PLLC, and held in escrow by
the counsel for the Debtors under the terms of the Order (and such
Escrow will constitute payment for title insurance purposes).
Concurrently with the closing of title under the Sale Contract and
compliance by the Buyer with all of the other terms of the Order,
U.S. Bank Trust N.A. as Trustee for LSS9 Master Participation
Trust, or such entity which is determined to be the real party in
interest, is directed to provide to the Debtors a satisfaction of
its mortgage encumbering the Property in recordable form.
Within 14 days after the closing of the foregoing sale, the Debtors
will cause a closing statement to be filed with the Court and serve
a copy on the Office of the U.S. Trustee.
The 14-day stay of the Order under Federal Bankruptcy Rule 6004(h)
is waived, for cause, and this Order is effective immediately upon
its entry.
If the Debtors and Caliber are unable to resolve the Payment
Dispute within 30 days of the date thereof, they will file a status
letter with the Court, with a copy emailed to chambers, and
schedule a status conference with the Court.
Yochanan Waldman and Rivkah Waldman sought Chapter 11 protection
(Bankr. S.D.N.Y. Case No. 10-23283-rdd) on June 23, 2010. On May
30, 2014, the Debtors confirmed their Chapter 11 Plan.
Counsel for the Debtors:
Elizabeth A. Haas, Esq.
ELIZABETH A. HAAS, ESQ., PLLC
254 So. Main Street, Suite 302
New City, N.Y. 10956-3363
Telephone: (845) 708-0340
ZAHMEL RESTAURANT: Amended Cash Collateral Stipulation Okayed
-------------------------------------------------------------
The Hon. Carla E. Craig of the U.S. Bankruptcy Court for the
Eastern District of New York inked her approval to the Amended
Stipulation and Consent Order made by and between Zahmel Restaurant
and Newtek Small Business Finance LLC and Strategic Funding Source,
Inc. authorizing Zahmel Restaurant's use of cash collateral.
Zahmel acknowledges and agrees that, as of the Petition Date, it is
indebted to Newtek in the principal amount of $327,275.75, plus
interest in the amount of $340.90, for a total of $327,616.65,
pursuant to that certain U.S. Small Business Administration Note,
Security Agreement and various other third party guaranties and
mortgages. Pursuant to these existing Agreements, Zahmel granted
Newtek a security interest in and lien upon all or substantially
all of Zahmel's assets. Pursuant to the Senior Existing Agreements,
Zahmel granted Newtek a security interest in and lien upon all or
substantially all of the Debtor's asset.
As of the Petition Date, Zahmel and Strategic Funding Source, Inc.
were parties to a certain Revenue Based Factoring RBF/ACH
Agreement, pursuant to which Strategic provided $59,000 for the
purchase of $77,585 in receivables of the Debtor. The Debtor
currently owes Strategic at least $49,961. Strategic also asserts
an ownership interest in the receivables per the RBF Agreement and
Newtek reserves the right to object to such ownership interest.
Newtek and Strategic will be granted a valid and perfected
replacement security interest in and lien on the same type of
post-petition assets in which Newtek and Strategic held a valid and
perfected lien prior to the Petition Date. The Adequate Protection
liens will constitute a first priority perfected lien on all of the
collateral as to which Newtek and Strategic held a valid and
perfected first priority lien as of the Petition Date. In addition,
Newtek and Strategic are granted an allowed superpriority
administrative expense claims in this chapter 11 case and any
successor cases.
As further adequate protection for the use of cash collateral,
Zahmel will pay to (a) Newtek the regular monthly payment of
interest at the non-default rate of 7.75% in the monthly sum of
$4,222, and (b) Strategic the monthly payment of $950.00 for the
month of July 2018, in both cases commencing upon approval of this
Stipulation.
Moreover, the Stipulation and Consent Order also provides that
Zahmel will:
(a) Utilize cash collateral to pay only the Debtor's normal
and regular expenses of the operation of its business, pursuant to
the Budget, provided that the Debtor will be permitted to exceed
individual line item disbursement amounts set forth in the Budget
by no more than 10% of such stated amounts;
(b) Account for all of the Debtor's expenditures in monthly
operating reports in accordance with the Office of the U.S.
Trustee's guidelines, which the Debtor will timely file with the
Bankruptcy Court and send to Newtek's and Strategic's counsel and
the Office of the U.S. Trustee;
(c) Maintain all insurance policies required to conduct its
business, including without limitation, general liability
insurance, workers' compensation insurance, and disability
insurance, and obtain such additional insurance in the amount as is
appropriate for the business in which the Debtor is engaged, naming
Newtek's and Strategic's as loss payees and as an additional
insured on all policies. The Debtor will provide Newtek and
Strategic with proof of all such coverage, as well as prompt
notification of any change in such coverage which may hereafter
occur;
(d) The Debtor will provide Newtek and Strategic and their
representatives, employees, experts or consultants reasonable
access during normal business hours to the business offices of the
Debtor to enable such individuals to conduct an examination of the
Collateral; and
(e) All third party guaranties will continue to guarantee and
collateralize Newtek and Strategic to all post-petition use of the
cash collateral by the Debtor and such guarantors consent entry of
the Stipulation.
A full-text copy of the Amended Cash Collateral Motion is available
at
http://bankrupt.com/misc/nyeb18-43312-33.pdf
About Zahmel Restaurant Supplies
Zahmel Restaurant Supplies Corp. is a restaurant supply distributor
that maintains warehouse and related offices at 6235 30th Avenue,
in Woodside, New York. The company has 45 employees and more than
50 creditors.
Zahmel Restaurant Supplies Corp. filed a Chapter 11 petition
(Bankr. E.D.N.Y. Case No. 18-43312) on June 5, 2018. In the
petition signed by Gil Appelbaum, vice president, the Debtor
estimated $500,000 to $1 million in assets and $1 million to $10
million in liabilities. Goldberg Weprin Finkel Goldstein LLP is
the Debtor's counsel.
*********
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S U B S C R I P T I O N I N F O R M A T I O N
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