/raid1/www/Hosts/bankrupt/TCR_Public/181219.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, December 19, 2018, Vol. 22, No. 352
Headlines
166 HILLSIDE: Case Summary & 3 Unsecured Creditors
ACCESS GLOBAL: Bid to Transfer Multibank Suit to District Ct. Nixed
ASP MCS ACQUISITION: S&P Alters Outlook to Neg. & Affirms B- ICR
BAY CIRCLE: Selling NCT's 19-Acre Gwinnett Property for $2.5M
BELMOND LTD: S&P Places 'B+' ICR on Watch Positive on LVMH Deal
BRYAN DEARASAUGH: Burnell Buying Conway Property for $150K
CHAMP ACQUISITION: S&P Cuts Rating on $150MM Revolver to B
CJ HOLDING: Total Breached Contract with Sharp Iron, Court Rules
COOKE OMEGA: S&P Alters Outlook to Negative & Affirms 'B+' ICR
COVENANT SURGICAL: S&P Affirms B+ Rating Amid $75MM Loan Add-On
CWP CABINETS: Case Summary & 12 Unsecured Creditors
D.J. SIMMONS: Trustee Selling Excess Inventory & Equipment
DAVID'S BRIDAL: S&P Rates $60MM Term Loan BB- & Retains 'D' ICR
DBSI INC: Award of Prejudgment Interest to J. Zazzali Inappropriate
DUMITRU MEDICAL: Selling Sandulescu's Cleveland Property for $100K
DWS CLOTHING: Voluntary Chapter 11 Case Summary
EAT FIT GO: Proposes Public Auction of Superfluous Assets
ELI KAFIF: YFL Buying Brooklyn Property for $1.25 Million
ENERGY FUTURE: Dismissal of S. Fenicle Reserve Fund Bid Upheld
FLAMINGO/TENAYA: Seeks to Hire Kung & Brown as Legal Counsel
FOOT AND ANKLE: Case Summary & 6 Unsecured Creditors
FRASER'S BOILER: UST's Exculpation Objections to Plan Overruled
GRATE ENTERPRISES: S&T Buying Morgantown Denny's Resto for $1.2M
HERO INC: Asks Court to Approve Proposed Plan Outline
HOSNER HOLDINGS: Seeks to Hire Maxwell Dunn as Legal Counsel
HOYT CONTRACTORS: Taps Phillip K. Wallace as Legal Counsel
HUDSON'S BAY CO: S&P Alters Outlook to Stable on Debt Paydown
ILLINOIS FINANCE AUTHORITY: S&P Cuts Ratings on 6 Tranches to CCC-
J.P. APARTMENTS: Seeks Interim Approval to Use Cash Collateral
J.P. RENTALS: Seeks Interim Approval to Use Cash Collateral
JACKIE'S COOKIE: Case Summary & 20 Unsecured Creditors
JASON FLY: Dragon Woodland Buying DLL's Collateral for $136K
JEFFREY HALL KAFKA: Loses G. Savin, S. Rhodes Lawsuit
JOSEPH PORADA: Rathje & Woodward Awarded $63K
JOSEPH PORADA: Shaw Fishman Awarded $72K as Final Compensation
JWCCC LLC: Plan and Disclosures Hearing Scheduled for Jan. 16
KERO TAXI: Seeks to Hire Alla Kachan as Legal Counsel
MISSION COAL: New Coal Buying Substantially All Assets for $145M
MISSOURI CITY FUNERAL: Jan. 29 Plan Confirmation Hearing
MOMENTIVE PERFORMANCE: Dismissal of BOKF Suit vs WSFS Upheld
NINE WEST: L.K Bennett Bid to Dismiss Plaza Madison Suit Junked
ONE WAY LOANS: Case Summary & 20 Unsecured Creditors
OSUM PRODUCTION: S&P Alters Outlook to Negative & Affirms CCC+ ICR
PATTY DEWITT: Seeks Valley Mart Sale Closing Extension to March 8
PETROCHOICE HOLDINGS: S&P Lowers ICR to B-, Outlook Stable
POINT.360: Court Approves Second Amended Disclosure Statement
PROMISE HEALTHCARE: PCO Seeks to Hire Otterbourg as Legal Counsel
PYRGOS TAXI: Giovanis Buying 4 NYC Taxi Medallions for $700K
R & C PROPERTIES: Voluntary Chapter 11 Case Summary
RAGGED MOUNTAIN: Jan. 23 Plan Confirmation Hearing
RMWM PARTNERS: April 24 Plan Confirmation Hearing Set
RONALD GOODWIN: Cook Construction Buying Wichita Property for $74K
RONALD GOODWIN: GBRB Buying Two Sedgwick Parcels for $39K
RONALD GOODWIN: Wyatt Buying Wichita Property for $143K
RONALD L WINN: Case Summary & 10 Unsecured Creditors
RYNARD PROPERTIES: Jan. 10 Disclosure Statement Hearing
SANA INDUSTRIES: Seeks to Hire Richard B. Rosenblatt as Counsel
SHILOH MISSIONARY: Case Summary & 3 Unsecured Creditors
SILVERADO STAGES: Committee Seeks to Hire Perkins Coie as Counsel
SINDESMOS HELLINIKES-KINOTITOS: Voluntary Chapter 11 Case Summary
SPECIAL ELECTRIC: Court Affirms Summary Ruling Against David Hart
STERLING MID-HOLDINGS: S&P Cuts ICR to CCC-, Then Withdraws Rating
TAJA REAL: Seeks to Hire Flaster/Greenberg as Legal Counsel
TRIBUNE MEDIA: Order Sustaining Objection to WTC Claim Reversed
TSAWD HOLDINGS: Court Grants M.J. Soffe Bid for Summary Judgment
TSAWD HOLDINGS: PAC Wins Summary Judgment Bid vs WSF
TX SUPERIOR: Case Summary & 20 Unsecured Creditors
UNISON ENVIRONMENTAL: Jan. 10 Plan Confirmation Hearing
URBAN ONE: S&P Affirms 'B-' ICR on Refinancing, Outlook Stable
VC BATON ROUGE: Voluntary Chapter 11 Case Summary
VC MACON: Voluntary Chapter 11 Case Summary
WHITEWATER/EVERGREEN: EVX Buying Interests in Texas Wells for $8.5M
WILSON LAND: Mentor Industrial Buying Mentor Vacant Land for $10K
XEROX CORP: S&P Lowers Long-Term ICR to 'BB+', Off CreditWatch Neg.
XPLORNET COMMUNICATIONS: S&P Retains B Debt Rating Amid Loan Upsize
ZLOOP INC: Denial of J. Boston, JBR Bid for Directed Verdict Upheld
*********
166 HILLSIDE: Case Summary & 3 Unsecured Creditors
--------------------------------------------------
Debtor: 166 Hillside LLC
387 Hidden Valley Drive
Naples, FL 34113
Chapter 11 Petition Date: December 13, 2018
Court: United States Bankruptcy Court
Middle District of Florida
Case No.: 18-10706
Debtor's Counsel: Michael R. Dal Lago, Esq.
Dal Lago Law
999 Vanderbilt Beach Road, Suite 200
Naples, FL 34108
Phone: 239.571.6877
E-mail: mike@dallagolaw.com
Total Assets: $1 million to $10 million
Total Liabilities: $1 million to $10 million
The petition was signed by Gregory Stranger, managing member of
Stranger Property Hldgs LLC.
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 Pacer Monitor at:
https://www.pacermonitor.com/filings/100044759
ACCESS GLOBAL: Bid to Transfer Multibank Suit to District Ct. Nixed
-------------------------------------------------------------------
Bankruptcy Judge Michael E. Wiles denied the Defendants' motion to
transfer the removed action captioned MULTIBANK, INC., Plaintiff,
v. ACCESS GLOBAL CAPITAL LLC, JAMES BESCH, GLOBAL COMMODITIES
GROUP, LLC AND NOVEL COMMODITIES S.A., Defendants, Adv. Pro. No.
18-01606 (MEW) (Bankr. S.D.N.Y.). Multibank's motion for the Court
to abstain and remand the removed action is granted.
Access Global Capital LLC and Global Commodities Group, LLC are
debtors in chapter 11 cases that are pending in the U.S. Bankruptcy
Court for the District of New Jersey. The Debtors also are
defendants in a civil action that was filed in the New York State
Supreme Court in February 2016, long prior to the date of the New
Jersey bankruptcy filings. The plaintiff in the New York State
court lawsuit is a Panamanian company named Multibank, Inc. The
named defendants include the two Debtors plus an individual named
James Besch and a Swiss company named Novel Commodities S.A.
Multibank claimed that the defendants breached certain contracts
and committed fraud, made negligent misrepresentations and/or
breached fiduciary duties in connection with the purchase of
insured accounts receivable.
On June 14, 2018, Access Global and Global Commodities filed their
voluntary chapter 11 petitions in New Jersey. Shortly thereafter
they filed a notice of removal to remove the Multibank state court
action from the New York State Supreme Court to the U.S. District
Court for the Southern District of New York. They also filed a
motion to transfer the removed Multibank state court action to the
United States District Court for the District of New Jersey, where
presumably it would then be transferred to the Bankruptcy Court for
that District. The District Court has referred the removed action,
and pending transfer motion, to Bankruptcy Court, pursuant to
standing orders under which bankruptcy-related matters are
automatically referred to the bankruptcy judges.
Multibank has opposed the transfer motion and has also urged that
the Court return the matter to the New York State Supreme Court on
various abstention and remand grounds.
It appears to the Court, in this case, that if Novel were to wish
to reopen its default, it would need to file a motion to do so in
the action to which it was originally named as a party (which is
the action that has been removed to this court), as there is no
other pending action in which such an application could be made. As
noted above, proceedings to enforce the judgment against Novel also
are part of the action that has been removed to me. The notice of
removal refers to "the above-entitled civil action from the Supreme
Court of New York, County of New York (Index No. 650637/2016)" and
expressly encompasses "all claims and causes of action asserted
therein." In their initial papers the Debtors themselves treated
the removal as though it included the action against Novel, and it
was not until the Debtors filed reply papers that the Debtors
argued otherwise.
Regardless of the "severance" of the Novel judgment, as a practical
matter the case against Novel has not been completely delinked from
the action against the Debtors and Mr. Besch. As a result, it does
not appear that the Court could transfer the action to New Jersey,
as the action presently stands, without also transferring to the
New Jersey federal court any actual or hypothetical further
proceedings that might occur with regard to Novel. Since that is
the case, the Court does not see how it could treat the removed
action as though Novel is no longer a party to it and as though the
state court has separated all proceedings regarding Novel from the
proceedings against the Debtors and Mr. Besch, as the Debtors urge
me to do. The severance of the judgment permits enforcement actions
to continue against Novel, but that appears merely to be the kind
of "severance" that permits an otherwise interlocutory order to be
treated as final for purposes of appeal, and does not appear in any
observable respect to have created a completely separate action
against Novel that no longer bears any connection to the removed
action.
In addition, the mandatory abstention provisions of section
1334(c)(2) require the Court to abstain from this matter if the
only ground for federal jurisdiction is the fact that the removed
action is related to a bankruptcy case and if the state court
action could be timely adjudicated by the state court. Since Novel
remains a party to the case it is plain that the sole ground for
federal jurisdiction is the relation of the removed Multibank
action to the New Jersey bankruptcy cases. Mandatory abstention
therefore applies in the absence of a showing that the action could
not be timely adjudicated in the New York State court.
For the foregoing reasons, the Debtors' motion to transfer the
removed action is denied, and Multibank's request that the Court
abstain and that it remands the removed action to the New York
State Supreme Court is granted, without prejudice to the
defendants' rights to move in the New York State Supreme Court for
a severance of the action insofar as it relates to the Debtors and
to James Besch, and without prejudice to a further removal and a
renewal of the motion to transfer in the event the New York State
court grants such a severance to the extent that such removal and
renewal are permitted under applicable law and rules.
A copy of the Court's Decision dated Nov. 27, 2018 is available at
https://is.gd/UTeB7V from Leagle.com.
Multibank, Inc., Plaintiff, represented by Daniel D. Edelman --
dedelman@kaplanrice.com Kaplan Rice LLP & Michelle Amy Rice --
mrice@kaplanrice.com -- Kaplan Rice LLP.
Access Global Capital, LLC & Global Commodities Group, LLC,
Defendants, represented by Douglas J. McGill --
dmcgill@webbermcgill.com -- Webber McGill LLC, Michael J. Reynolds
-- mreynolds@webbermcgill.com -- Webber McGill LLC & Andrew T.
Solomon, Solomon & Cramer LLP.
James Besch, Defendant, represented by Robert K. Malone --
robert.malone@dbr.com -- Drinker Biddle & Reath LLP & Andrew T.
Solomon, Solomon & Cramer LLP.
Novel Commodities S.A., Defendant, pro se.
About Access Global Capital
Global Commodities Group, LLC, is a privately held company in
Lebanon, New Jersey operating under the food services industry.
Access Global Capital LLC is a commodities trading company. Global
and Access are both owned by James Besch.
Global Commodities Group, LLC, and Access Global Capital, LLC,
filed voluntary petitions seeking relief under Chapter 11 of the
Bankruptcy Code (Bankr. D. N.J. Case No. 18-22031 & Bankr. D. N.J.
Case No. 18-22043, respectively) on June 14, 2018.
In the petitions signed by James Besch, sole member and manager,
Access disclosed $2.23 million in assets and $4.65 million in
liabilities while Global disclosed $403,044 in assets and $11.15
million in liabilities.
Judges Kathryn C. Ferguson presides over Case No. 18-22031 and
Judge Christine M. Gravelle presides over Case No. 18-22043.
Douglas J. McGill, Esq., at Webber McGill, LLC, is the Debtors'
counsel.
ASP MCS ACQUISITION: S&P Alters Outlook to Neg. & Affirms B- ICR
----------------------------------------------------------------
On Dec. 17, 2018, S&P Global Ratings Services revised its rating
outlook on U.S.-based residential field services provider ASP MCS
Acquisition Corp. (MCS) to negative from stable and affirmed its
'B-' issuer credit rating.
At the same time, S&P affirmed its 'B-' issue-level rating on the
company's senior secured credit facility. The '3' recovery rating
remains unchanged, reflecting its expectation of meaningful
recovery (50%-70%; rounded estimate: 50%) in the event of a payment
default. The action reflects, among other things, MCS' 18% decline
in revenue year-to-date (YTD) resulting from customer losses and
lower demand for its core field services business.
S&P said, "The outlook revision reflects our expectations that MCS'
credit measures will remain weak over the next year, with adjusted
debt leverage above 9x, as the company continues to work through
its cost reduction program and as demand for its core services
remains low, reflecting lower U.S. home default and vacancy rates.
"The negative outlook reflects our expectation that we could lower
ratings over the next six to 12 months if we forecast cash flow
deficits, if the company's liquidity sources decline below $15
million, or if the company struggles to limit revenue declines and
charge-backs, or to reduce its operating expenses in line with
expected revenue declines. Additionally, we would lower our rating
if we expect a payment default or a distressed exchange. However,
MCS has demonstrated its ability to reduce costs and we expect a
modest improvement in cash flow generation in 2019 as the effects
of large contract losses and charge-backs diminish.
"Absent a meaningful turnaround in operating performance, we
believe the risk of a downgrade is more likely than an upgrade. In
this scenario, we would forecast free operating cash flow (FOCF)
deficits, total liquidity drops below $15 million, interest
coverage ratio drops below 1.0x, or that we become increasingly
convinced the company will default or struggle to meet all its debt
repayment commitments.
"We could revise our outlook to stable if MCS stabilizes its
operating performance, possibly by growing organic revenues and
expanding margins. This could occur because of new customer wins,
favorable macroeconomic conditions, and reduced charge-backs, such
that it sustains FOCF to debt in the 3%-5% range. In this scenario,
we would also forecast a sharp decline in the company's adjusted
debt leverage over our two-year forecast period."
BAY CIRCLE: Selling NCT's 19-Acre Gwinnett Property for $2.5M
-------------------------------------------------------------
NRCT, LLC, an affiliate of Bay Circle Properties, LLC, asks the
U.S. Bankruptcy Court for the Northern District of Georgia to
authorize the sale of approximately 18.9 acres of real property
located in Gwinnett County, Georgia to Century Communities of
Georgia, LLC for $2.49 million, subject to adjustment in the event
83 lots are not approved.
The Property is raw land. NRCT does not believe that the Property
is subject to any liens, claims or encumbrances. It asks authority
to sell the Property to the Purchaser pursuant to the Contract for
the agreed price, subject to adjustment of $30,000 price reduction
for each lot less than 83. NRCT asks authority to pay, among other
things transfer taxes and costs as set forth in the Contract.
The Debtor proposes to enter into a Contract with provides for the
sale of the Property to the Purchaser, the pertinent terms of which
are:
a. Property: 18.9 acres of land in Gwinnett County, Georgia
b. Purchaser: Century Communities of Georgia, LLC
c. Price: $2.49 million, subject to any creditors, pro-rations
or adjustments provided in the Contract. In the event the Land
Disturbance Permit yields less than 83 lots, the purchase price
will be reduced by an amount equal to $30,000 times the difference
equal to 83 lots minus the total number of lots allowed under the
Land Disturbance Permit.
d. Contingent: The Contract is contingent upon various items
including, without limitation, rezoning.
The Motion and an accompany Notice of Hearing will be served upon
all creditors by Dec. 7, 2018.
The paramount goal for any proposed sale of the property of a
bankruptcy estate is to maximize the proceeds received by the
estate. As set forth, the Debtor believes that good cause exists
to authorize the sale of the Property on the terms prayed for.
Pursuant to the Bankruptcy Rule 6004 and Section 363(f), the sale
of the Property to the Buyer will be free and clear of all liens,
claims, interests and encumbrances. The purchase price of no less
than $2.49 million represents the fair market value of the Property
to make the proposed disbursements set forth. The Debtor does not
require the Property in order to successfully reorganize in
bankruptcy.
A copy of the Contract attached to the Motion is available for free
at:
http://bankrupt.com/misc/Bay_Circle_916_Sales.pdf
The Purchaser:
CENTURY COMMUNITIES OF GEORGIA, LLC
3091 Governors Lake Drive
Suite 200
Norcross, GA 30071
The Purchaser is represented by:
Keith Hurand, Esq.
Angie Yeremian, Esq.
Christina Schenck, Esq.
GEOFFREY REID & SCOTT BUTLER
Telephone: (678) 533--1160
E-mail: keith.hurand@centurycommunities.com
ayeremian@centurycommunities.com
cschenck@centurycommunities.com
About Bay Circle Properties
Bay Circle Properties, LLC, DCT Systems Group, LLC, Sugarloaf
Centre, LLC, Nilhan Developers, LLC, and NRCT, LLC, own 16
different real properties including significant undeveloped
acreage. The properties also include office/warehouse buildings,
retail shopping centers and free standing single tenant buildings.
Bay Circle Properties, et al., filed Chapter 11 bankruptcy
petitions (Bankr. N.D. Ga. Case Nos. 15-58440 to 15-58444) on May
4, 2015. The Chapter 11 cases are jointly administered. In the
petition signed by Chuck Thakkar, manager, Bay Circle estimated $1
million to $10 million in assets and liabilities.
The Debtors tapped John A. Christy, Esq., J. Carole Thompson Hord,
Esq., and Jonathan A. Akins, Esq., at Schreeder, Wheeler & Flint,
LLP, as bankruptcy attorneys. The Debtors engaged RG Real Estate,
Inc., as real estate broker.
BELMOND LTD: S&P Places 'B+' ICR on Watch Positive on LVMH Deal
---------------------------------------------------------------
S&P Global Ratings placed its 'B+' issuer credit rating on Belmond
Ltd. on CreditWatch Positive following LVMH Moet Hennessy Louis
Vuitton S.E.'s (A+/Stable/A-1) announcement that it has entered
into a definitive agreement to acquire the company for $3.2
billion.
S&P said, "The CreditWatch positive listing reflects that we expect
Belmond to be purchased by a higher-rated entity. We believe that
LVMH will likely repay all of the debt at Belmond at the close of
the transaction because of change-of-control provisions in the
company's credit agreement. Therefore, we did not place our
issue-level rating on Belmond's debt on CreditWatch."
Belmond's debt include the company's $100 million multi-currency
senior secured revolving credit facility and $600 million senior
secured term loan (which consists of a $400 million tranche and a
EUR180 million tranche).
S&P said, "We will resolve the CreditWatch positive placement when
the acquisition closes. We believe that LVMH will repay all of the
debt at Belmond once the acquisition is complete. Therefore, we
will likely withdraw all of our ratings on Belmond at that time."
BRYAN DEARASAUGH: Burnell Buying Conway Property for $150K
----------------------------------------------------------
Bryan and Karen Dearasaugh ask the U.S. Bankruptcy Court for the
Eastern District of Arkansas to authorize the sale of the improved
real property located at 18 Manchester, Conway, Faulkner County,
Arkansas to Brenda Burnell for $149,995.
The parties have entered in to the Real Estate Contract for the
Real Property, with addendums, for the sale and purchase of the
Property. The earnest money deposit is $1,000. The sale is on a
strictly "as is, where is" basis.
The proceeds from the sale of the Real Property are to be paid as
follows:
a. There will be a 6% real estate commission charged on the
sale of the Real Property;
b. The real estate taxes will be paid in full;
c. Each party will pay closing costs; and
d. Remaining net proceeds on the Real Property and will be
paid to Wells Fargo Bank and applied first to the principal and
past due interest on the secured loan to which the real estate
collateral pertains and then to Centennial Bank and applied to
applied first to the principal and past due interest on the second
priority secured loan to which the real estate collateral, with any
remaining additional proceeds, if any, to be paid to the Debtors to
be deposited into their DIP account and distributed in accordance
with further orders of the Court.
Objections, if any, must be filed within 21 days from the date of
Motion service.
A copy of the Contract attached to the Motion is available for free
at:
http://bankrupt.com/misc/Bryan_Dearasaugh_539_Sales.pdf
Bryan and Karen Dearasaugh sought Chapter 11 protection (Bankr.
E.D. Ark. Case No. 17-10969) on Feb. 20, 2017. The Debtors tapped
Kevin P. Keech, Esq., at Keech Law Firm, PA, as counsel.
CHAMP ACQUISITION: S&P Cuts Rating on $150MM Revolver to B
----------------------------------------------------------
S&P Global Ratings lowered its issue-level rating on Champ
Acquisition Corp.'s $150 million revolver to 'B' from 'BB' and
revised the recovery rating on this debt to '3' from '1+'.
S&P said, "At the same time, we affirmed our 'B' issue-level rating
the company's first-lien term loan, which the company is now
upsizing to $775 million from $750 million. The recovery rating on
the first-term loan remains '3'. The '3' recovery rating on the
revolver and term loan reflects our expectation for meaningful
(50%-70%, rounded estimate: 65%) recovery of principal in the event
of a payment default."
Concurrently, S&P affirmed its 'CCC+' issue-level rating on the
company's $150 million second-lien term loan. The recovery rating
remains '6', reflecting its expectation for negligible (0%-10%;
rounded estimate: 0%) recovery of principal.
The issue-level rating downgrade on the revolver reflects the
company's proposed change to its capital structure where its $150
million revolver now ranks pari passu with the first-lien term
loan. Previously, the revolver had a super-priority position in the
capital structure.
The revised capital structure and the modestly upsized first-lien
term loan will result in a slight increase in debt leverage and
will have no impact on the existing 'B' issuer credit rating or the
stable outlook. S&P forecasts the company's pro forma debt leverage
will be about 4.8x as of the end of fiscal 2018 before rising to
the low-5x area in 2019.
RATINGS LIST
Champ Acquisition Corporation
Issuer Credit Rating B/Stable/--
Ratings Lowered; Recovery Rating Revised
To From
Champ Acquisition Corporation
Senior Secured B BB
Recovery Rating 3(65%) 1+(100%)
Ratings Affirmed; Recovery Expectations Revised
Champ Acquisition Corporation
Senior Secured B B
Recovery Rating 3(65%) 3(60%)
Ratings Affirmed; Recovery Ratings Unchanged
Champ Acquisition Corporation
Senior Secured CCC+
Recovery Rating 6(0%)
CJ HOLDING: Total Breached Contract with Sharp Iron, Court Rules
----------------------------------------------------------------
In the case captioned IN RE: CJ HOLDING CO., et al. Debtors, SHARP
IRON GROUP, LLC, Appellant, v. TOTAL E&S, INC., Appellee, Civil
Action No. H-18-1974 (S.D. Tex.), District Judge Lee H. Rosenthal
reversed the bankruptcy court's finding that Total E&S, Inc. did
not breach the contract and owes no damages. The case is remanded
for further findings and proceedings.
The case is an appeal from the bankruptcy court's order sustaining
a debtor's objection to a creditor's proof of claim. The dispute
arose from a sales contract between Total E&S, Inc. and Sharp Iron
Group, LLC. In Total's consolidated bankruptcy proceeding, Sharp
alleged that Total had breached the contract by refusing to take
delivery of, and failing to pay for, goods that Sharp manufactured
to Total's specifications, after Total told Sharp to delay shipment
indefinitely. Total alleged that it had terminated the contract and
was not liable to pay for the goods that were not shipped. Sharp
responds that it manufactured the goods before Total terminated the
contract, and that Total is obligated to pay for them. The court
has appellate jurisdiction under 28 U.S.C. section 157(b)(2)(B),
and must decide whether the bankruptcy court erred in finding that
Total had terminated the contract and did not breach it by refusing
to accept shipment or pay.
The Court holds that the finding does not address the fact that
Total's written termination notice was preceded by months of
changes to the delivery schedule. It does not address the ambiguity
created by the obligation to attempt (at least) in good faith to
reach mutual agreement on an adjusted time for Sharp's performance
or price following Sharp's timely requests for adjustments after
notice of the Changes. It does not address the ambiguity created by
the absence of any purchase order language stating the consequence
of a failure by Total to negotiate in good faith or the parties'
failure to reach mutual agreement. Under Texas law, on termination,
executory obligations on both sides are discharged, but any right
based on a prior breach or performance survives. Total's reading
that it must pay for pre-termination deliveries, but need not pay
for post-termination deliveries, regardless of when manufacture or
tender of delivery occurred, and regardless of whether its
termination notice was "reasonable," fails to account for the
purchase orders' use, and the Code's definitions, of "terminate"
and "cancel."
The record shows that Total reduced, then deferred, shipment
authorization for more than one year, while giving assurances to
Sharp of an expectation of resuming deliveries in the near future,
and without reaching an agreement with Sharp for an adjusted
delivery schedule or price. The uncertainties as to whether Total
attempted in good faith to agree on adjustments to the delivery
schedule or price; whether Total violated its obligation to use
reasonable effort to take physical possession of goods tendered for
delivery before effectively changed Sharp's performance; and
whether and when Total terminated the purchase orders, with what
consequence, remain unresolved on this record. The bankruptcy court
did not rule on these and related disputes material to determining
breach and damages, and the record does not permit this court to
resolve them.
A copy of the Court's Memorandum Opinion and Order dated Nov. 27,
2018 is available at https://is.gd/Q0yI6t from Leagle.com.
In re CJ Holding Co., Debtor, represented by Adam Michael Dinnell
-- adinnell@shjlawfirm.com-- Schiffer Hicks et al, Andrew Sterling
Hicks -- ahicks@shjlawfirm.com -- Schiffer Odom Hicks Johnson PLLC
& Bernard R. Given, II -- bgiven@loeb.com -- Loeb Loeb LLP.
Sharp Iron Group, LLC, Appellant, represented by Curtis W.
McCreight -- mccreight@hooverslovacek.com -- Hoover Slovacek LLP &
Dylan B. Russell – Russell@hooverslovacek.com --Hoover Slovacek
LLP.
Indian Creek Fabricators, Inc., Amicus, represented by Joshua
Walton Wolfshohl , Porter Hedges LLP.
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.
COOKE OMEGA: S&P Alters Outlook to Negative & Affirms 'B+' ICR
--------------------------------------------------------------
Cooke Omega Investments Inc.'s 2018 EBITDA will be weaker than
expected and 2019 results will likely be similarly pressured, S&P
Global Ratings related. As a result, S&P forecasts the company's
debt-to-EBITDA will weaken to 6.0x-6.5x from its previous
expectation of the mid-4.0x area. S&P is thus revising its outlook
on Cooke Omega to negative from stable.
S&P said, "At the same time, we affirmed our 'B+' long-term issuer
credit rating on the company and our 'B+' issue-level rating, with
a '3' recovery rating, on the company's senior secured notes. The
'3' recovery rating reflects our expectation of meaningful
(50%-70%; rounded estimate: 55%) recovery in the event of
default."
The negative outlook reflects Cooke Omega Investment Inc.'s
operational underperformance and weaker credit measures in 2018 and
S&P Global Ratings' expectations that such weakness will continue
for the next 12 months. The outlook also reflects S&P's uncertainty
that the company will sell its excess inventory in 2019 as planned
given the volatile pricing environment for fish meal and fish oil,
amid global demand-supply imbalances and the ongoing U.S.-China
trade disputes.
S&P said, "We expect the company to post 2018 revenue and EBITDA of
about US$280 million-US$310 million and US$50 million-US$60
million, respectively, compared with our previous expectation of
US$360 million and US$80 million, respectively. Accordingly, we
forecast the company to exit 2018 with debt to EBITDA of 6.0x-6.5x
and EBITDA interest coverage of about 2.0x compared with our
previous forecast of the mid-4.0x area and 3.5x, respectively. The
earnings shortfall is a combination of lower sales volume in the
company's animal nutrition segment (generally 65% of revenues and
80% of EBITDA) and weak pricing environment globally for fish meal
and fish oil.
"The negative outlook reflects Cooke Omega's underperformance in
2018 and the uncertainty that the company will be able to recover
in 2019. As a result, we expect the company's EBITDA interest
coverage will remain close to 2.0x while debt to EBITDA will be
elevated at 6.0x-6.5x for the next 12 months.
"We could lower the ratings if the company were to sustain a
debt-to-EBITDA ratio above 7x or if EBITDA to interest coverage
weakened below 2x due to weak operating performance, from either
weather issues or global price declines with no clear path of
deleveraging. We estimate that a more than 200-basis-points decline
in EBITDA margins from current levels could push credit measures
toward our downside thresholds. In addition, debt-financed
acquisitions or large capital expenditure plans could pressure the
ratings.
"We could revise the outlook to stable if the company is able to
reduce inventory levels and generate earnings such that debt to
EBITDA and EBITDA interest coverage for 2019 improve to about 5x
and 3x, respectively."
COVENANT SURGICAL: S&P Affirms B+ Rating Amid $75MM Loan Add-On
---------------------------------------------------------------
Nashville-based health care facilities owner and operator Covenant
Surgical Partners Inc. added an additional $75 million to its $45
million delayed-draw term loan. S&P Global Ratings expects the
company to fully draw on the capacity to fund acquisitions. S&P
affirmed its 'B-' issuer credit rating on Covenant.
S&P said, "We also affirmed our 'B+' rating on its senior secured
revolving credit facility (with a '1' recovery rating indicating
our estimate of 95% recovery in a default).
"In addition, we affirmed our 'B-' rating on its first-lien debt
(with a '4' recovery rating indicating our estimate of 30% recovery
in a default). Our estimate of leverage for 2019 is unchanged at
about 7x.
"Covenant participates in a highly competitive and fragmented
market, and we see the continued shift of patient volume from
inpatient to outpatient settings supporting demand for its
services. However, we expect that increasing competition in
outpatient/ambulatory surgery care settings coupled with
constrained reimbursement will continue to pressure margins. These
factors, in our view, limit annual organic growth to the low-single
digits."
The stable rating outlook on Covenant reflects S&P Global Ratings'
expectation that the company will grow at above industry average as
acquisitions supplement low-single-digit organic revenue growth,
the reimbursement environment remains stable, discretionary cash
flow is modest, and liquidity remains adequate.
S&P said, "We could consider a downgrade if the company suffers
discretionary cash flow deficits over an extended period, leading
us to view the capital structure as unsustainable. Cash flows could
turn negative if the company's organic revenue declines at a
high-single-digit rate or margins drop an estimated 300 basis
points as a result of competition, reductions in reimbursement, or
poorly performing acquisitions and integration problems.
"Although an upgrade is unlikely over the next 12 months, we could
consider raising the rating if Covenant's organic revenue growth
accelerates to the mid- to high-single digits, steadily integrates
its acquisitions, generates discretionary cash flows in excess of
$20 million, and reduces leverage to under 5x. We believe this
would likely require the company to nearly double its revenue
base."
CWP CABINETS: Case Summary & 12 Unsecured Creditors
---------------------------------------------------
Debtor: CWP Cabinets, Inc.
10007 Yucca Rd.
Adelanto, CA 92301-2242
Business Description: Provides custom residential cabinetry made
in California for homebuilders in
California, Nevada, and Arizona. Revenue
was $9.53 million in 2016, $9.00 million in
2017, and $7.5 million in 2018.
Chapter 11 Petition Date: December 14, 2018
Court: United States Bankruptcy Court
Central District of California, Riverside Division
Case No.: 18-20473
Judge: Hon. Wayne E. Johnson
Debtor's Counsel: J. Scott Williams, Esq.
The Williams Firm PLC
15615 Alton Parkway, Suite 175
Irvine, CA 92618
Phone: 949-660-8680
Fax: 866-284-8670
Alt: 949-450-8500
E-mail: jwilliams@williamsbkfirm.com
Total Assets: $100,001 to $500,000
Total Liabilities: $1 million to $10 million
The petition was signed by Michael Rodriguez, president.
A full-text copy of the petition containing, among other items, a
list of the Debtor's 12 unsecured creditors, is available for free
at Pacer Monitor at:
https://www.pacermonitor.com/filings/100117319
D.J. SIMMONS: Trustee Selling Excess Inventory & Equipment
----------------------------------------------------------
Edward B. Cordes, Chapter 11 Trustee for D.J. Simmons Co., asks the
U.S. Bankruptcy Court for the District of Colorado to authorize the
sale of excess inventory and equipment, outside the ordinary course
of business, so long as the total purchase price for each such sale
does not exceed $20,000.
The Trustee has recently closed on the sale of the estates'
interests in wells in New Mexico and Texas to Mustang Energy
Resources, LLC. The estates currently only an approximately 30
wells in Colorado and Utah remaining, 12 are in production. The
Trustee is actively marketing these remaining wells for sale.
As the liquidation of the estates' assets proceeds, the Debtors'
need for equipment and inventory to repair and maintain producing
wells has declined. Once the final operating assets are sold, the
Debtors will have no further need for any remaining equipment or
inventory.
The Trustee has disposed of miscellaneous excess equipment and
inventory, in the ordinary course of business, but is concerned
that the complete sale of all remaining equipment and inventory
would be considered outside the ordinary course of business, and
thus requires Court approval. He believes that the value of all
remaining equipment and inventory on hand is under $100,000.
Individual sales of excess equipment and inventory will likely be
for relatively small sales prices, and it is not cost-effective for
the Trustee to ask Court approval for each individual sale. In
addition, the purchasers will typically not be interested in
remaining equipment and inventory if closing of a sale must be
delayed for a month while the Trustee secures Court authorization.
Thus, the Trustee seeks Court authorization to sell equipment and
inventory, outside the ordinary course of business, so long as the
purchase price realized from each such sale does not exceed
$20,000.
The equipment and inventory which the Trustee seeks to sell is all
located in the Debtors' yard in Farmington, New Mexico, and not at
individual well sites. The Trustee does not believe that Bank of
Oklahoma holds a pre-petition lien on the equipment and inventory,
and the Trustee believes that its liens are limited to equipment
and inventory at well-sites, and not equipment and inventory in the
Debtors' yard. Nevertheless, Bank of Oklahoma may assert an
adequate protection lien against the proceeds thereof, based on the
claimed diminution in the value of its collateral during these
bankruptcy cases, but has not as of yet filed such a claim. To the
knowledge of the Trustee, Bank of Oklahoma is the only creditor
that may assert a lien on these assets. The assets may be sold free
and clear of liens, claims, and interests.
About D.J. Simmons
Farmington, New Mexico-based D.J. Simmons Inc. --
http://www.djsimmons.com/-- is an independent oil and gas
exploration and production company.
D.J. Simmons and its affiliates have oil and natural gas reserves
from approximately 100 wells operated by the company, and 500 wells
operated by third parties in Colorado, New Mexico, Utah, and Texas.
Kimbeto Resources, LLC, owns 13 wells in Rio Arriba County, New
Mexico. DJS, Inc., also operates the wells owned by Kimbeto. D.J.
Simmons Company Limited Partnership holds most of the oil and gas
and other assets. Kimbeto holds oil, gas, and other related assets
on land owned by the Jicarilla Apache Tribe. DJS, Inc, operates
the assets and employs a small administrative staff.
DJS Co. LP, Kimbeto and DJS, Inc. filed Chapter 11 petitions
(Bankr. D. Colo. Case Nos. 16-11763, 16-11765 and 16-11767) on
March 1, 2016. The cases are jointly administered under Case No.
16-11763.
The petitions were signed by John Byrom, president of DJS, Inc.
DJS Co. LP disclosed $9.94 million in total assets and $12.9
million in total liabilities. Kimbeto disclosed $976,190 in total
assets and $9.81 million in total liabilities.
Ethan Birnberg, Esq., at Lindquist & Vennum LLP, serves as the
Debtors' counsel.
Edward B. Cordes was appointed as Chapter 11 trustee. No official
committee of unsecured creditors has been appointed in the Debtors'
cases.
DAVID'S BRIDAL: S&P Rates $60MM Term Loan BB- & Retains 'D' ICR
---------------------------------------------------------------
On Dec. 17, 2018, S&P Global assigned its point-in-time 'BB-'
issue-level rating to the $60 million debtor-in-possession (DIP)
term loan provided to David's Bridal Inc., a specialty bridal-gown
retailer currently operating under the protection of Chapter 11 of
the U.S. Bankruptcy Code following a pre-packaged filing on Nov.
19, 2018. The DIP financing also includes an unrated $125 million
asset-based lending (ABL) revolving credit facility. Both
facilities are structured to roll into exit facilities upon the
company's emergence from bankruptcy.
S&P's 'BB-' issue rating on David's DIP term loan reflects its view
of the credit risk borne by the DIP lenders, including its debtor
credit profile (DCP) assessment, the prospects for full repayment
through the company's reorganization and emergence from Chapter 11
(via S&P's capacity for repayment at emergence (CRE) assessment),
and potential for full repayment in a liquidation scenario (via
S&P's additional protection in a liquidation scenario (APLS)
assessment), as follows:
-- S&P's DCP of 'b' reflects the combination of its 'weak'
business risk profile and 'aggressive' financial risk profile
assessments, together with its consideration of applicable ratings
modifiers, on David's during bankruptcy.
-- S&P said, "Our CRE assessment of 'strong coverage' of the DIP
debt in an emergence scenario is indicative of coverage of more
than 250%, which provides an uplift of two notches over the DCP.
Although the DIP facilities will roll over into exit financing, we
assessed repayment prospects for purposes of the CRE assessment as
if the DIP facilities were required to be repaid in full in cash at
emergence."
-- S&P's APLS assessment indicates insufficient coverage of the
DIP term loan in a liquidation scenario and does not impact its DIP
issue rating.
DBSI INC: Award of Prejudgment Interest to J. Zazzali Inappropriate
-------------------------------------------------------------------
In the case captioned JAMES R. ZAZZALI, Plaintiff, v. MARTY
GOLDSMITH, Defendant, Adv. No. 12-06056-TLM (Bankr. D. Idaho),
Chief Bankruptcy Judge Terry L. Myers denied Plaintiff's Motion for
Award of Prejudgment Interest.
On Oct. 17, 2018, this Court issued a Memorandum of Decision
containing its findings of fact, conclusions of law following Phase
II of the trial in the instant adversary proceeding. In the
Decision, the Court found the defendant, Marty Goldsmith was liable
under sections 548 and 550 to the plaintiff, James Zazzali for
$2,900,258.54, and directed submission of a proposed form of
judgment.
On Oct. 23, 2018, pursuant to Rules 7054 and 9013, Zazzali filed a
motion for award of prejudgment interest and for entry of final
judgment, seeking $4,054,282 in prejudgment interest in addition to
the $2,900,258.54 determined to be due in the Decision. On Nov. 15,
2018, the Court held a hearing on the Motion and allowed Goldsmith
to submit an untimely "Memorandum of Points and Authorities."
In some section 548 cases it is appropriate for courts to make
aggrieved parties whole by awarding prejudgment interest from the
time demand was made or the date of the commencement of an
adversary proceeding. However, in Acequia, prejudgment interest is
not appropriate where the amount of the transferee's liability is
not ascertainable prior to the court's judgment. In short, "Awards
of prejudgment interest are governed by considerations of
fairness[.]"
Zazzali claims a strict interpretation of Acequia requires the
Court to award interest because the amount of the "contested
payment" was clearly ascertainable as of the date of the transfer
from DBSI to Goldsmith on Feb. 26, 2007, and that it should not
matter that Goldsmith's liability was determined only after (a)
valuation of the Tanana Valley Property and (b) consideration of
Goldsmith's good-faith defenses. Thus, in Zazzali's view, to
trigger an award of prejudgment interest, Acequia merely requires
the amount of the transfers, not the final amount of a transferee's
actual liability, to be ascertainable.
Zazzali's argument fails. In Acequia, the court awarded prejudgment
interest because the amount of the "contested payment" or transfer
equaled the ultimate amount of liability in that case and the
transferee did not successfully raise any defenses on his behalf.
Here, the liability amount was not similarly ascertainable because
Goldsmith raised and successfully proved good-faith defenses, a
crucial element in the determination of his ultimate liability. The
Acequia court awarded fees because the liability amount was clearly
determinable prior to the court's judgment; that is not the case
here. Moreover, this case is also distinct from Acequia because
this Court found Goldsmith was a good faith transferee in the
Tanana Valley transaction. This militates against an award of
prejudgment interest.
Based on these distinctions, the Court finds that an award of
prejudgment interest is not appropriate. The Court has substantial
discretion to award prejudgment interest based on a balancing of
the equities and in consideration of fairness. Here, it would be
inequitable to require Goldsmith, a good faith transferee, to pay
prejudgment interest.
A copy of the Court's Memorandum Decision dated Nov. 21, 2018 is
available at https://bit.ly/2PCPw7A from Leagle.com.
James R Zazzali, as Trustee for the Debtors' Jointly-Administered
Chapter 11 Estates and/or as Litigation Trustee for the DBSI Estate
Litigation Trust, Plaintiff, represented by Dale Barney --
dbarney@gibbonslaw.com -- Gibbons, P.C., Mark Barry Conlan ,
Gibbons, P.C., Keely E. Duke , Duke Scanland and Hall, PLLC, Kevin
Alan Griffiths , Duke Scanlan & Hall, PLLC, Jennifer A. Hradil --
jhradil@gibbonslaw.com -- Gibbons P.C. & Brett S. Theisen --
btheisen@gibbonslaw.com -- Gibbons P.C
Marty Goldsmith, Defendant, represented by L. Jason Cornell, Fox
Rothschild LLP, Kimbell D. Gourley, Brian F. McColl & Carl D. Neff
-- -- CNeff@foxrothschild.com -- Fox Rothschild LLP.
John Doe 1-10, Defendant, pro se.
About DBSI Inc.
Headquartered in Meridian, Idaho, DBSI Inc. and its affiliates
were engaged in numerous commercial real estate and non-real
estate
projects and businesses. On Nov. 10, 2008, and other subsequent
dates, DBSI and 180 of its affiliates filed for Chapter 11
protection (Bankr. D. Del. Lead Case No. 08-12687). DBSI
estimated assets and debt between $100 million and $500 million as
of the
Chapter 11 filing.
Lawyers at Young Conaway Stargatt & Taylor LLP serve as the
Debtors' bankruptcy counsel. The Official Committee of Unsecured
Creditors tapped Greenberg Traurig, LLP, as its bankruptcy
counsel. Kurtzman Carson Consultants LLC is the Debtors' notice
claims and
balloting agent.
Joshua Hochberg, a former head of the Justice Department fraud
unit, served as an Examiner and called the seller and servicer of
fractional interests in commercial real estate an "elaborate shell
game" that "consistently operated at a loss" in his report
released in October 2009. McKenna Long & Aldridge LLP was counsel
to the
Examiner.
On Sept. 11, 2009, the Honorable Peter J. Walsh entered an Order
appointing James R. Zazzali as Chapter 11 trustee for the Debtors'
estates. On Oct. 26, 2010, the trustee won confirmation of the
Second Amended Joint Chapter 11 Plan of Liquidation for DBSI,
paving the way for it to pay creditors and avoid years of
expensive litigation over its complex web of affiliates. The plan,
which
was declared effective Oct. 29, 2010, was co-proposed by DBSI's
unsecured creditors committee.
Pursuant to the confirmed Chapter 11 plan, the DBSI Real Estate
Liquidating Trust was established as of the effective date and
certain of the Debtors' assets, including the Debtors' ownership
interest in Florissant Market Place was transferred to the RE
Trust. Mr. Zazzali and Conrad Myers were appointed as the
post-confirmation trustees. Messrs. Zazzali and Myers are
represented by lawyers at Blank Rime LLP and Gibbons P.C.
DUMITRU MEDICAL: Selling Sandulescu's Cleveland Property for $100K
------------------------------------------------------------------
Dumitru Medical Center, P.C., Doctor One Housecall Physicians, P.C.
and Dumitru O. Sandulescu, ask the U.S. Bankruptcy Court for the
Eastern District of Michigan to authorize the private sale of
Sandulescu's real property located at 3332 144th Street, Cleveland,
Ohio to Ryan Summers for $100,000.
On Nov. 28, 2018, Debtor Sandulescu received the Offer to Purchase
Real Estate and Acceptance from Summers, for the purchase of the
Property, at the agreed purchase price. The terms of the Purchase
Agreement are consistent with those in the industry and are
commercially reasonable.
The material terms of the Purchase Agreement are:
a. Summers will purchase the Property for $100,000;
b. Within four 4 days of acceptance of the Purchase Agreement,
which agreement was accepted by Debtor Sandulescu on Nov. 29, 2018,
the Summers is required to escrow $1,000 as a good faith deposit
earnest money deposit;
c. The closing will occur by Dec. 28, 2018.
d. The sale is "as is, where is";
e. Debtor Sandulescu and his wife will transfer all of their
right, title and interest in the Property to Summers via a Warranty
Deed at the closing; and
f. The sale is contingent upon Court approval.
On Dec. 3, 2018, Debtor Sandulescu requested consent from the IRS
to the private sale of the Property to Summers based on the terms
of the Purchase Agreement. The sale will be free and clear of
liens, claims, encumbrances and interest, and liens to transfer to
the sale proceeds.
Debtor Sandulescu wishes to proceed with the sale of the Property
to Summers. Sale of the Property through the private sale as set
forth in the Purchase Agreement is necessary for an effective
reorganization of Sandulescu's debt. The proceeds will
substantially reduce Sandulescu's obligations to the IRS. Debtor
Sandulescu is prepared to proceed with the sale as set forth in the
Purchase Agreement.
The Debtors propose that upon the closing of the sale, the 6%
commission would be paid to Howard Hanna. The secured claim of the
Specialized Loan Servicing will be paid in full upon the closing of
the sale. In addition, the secured claim of the Internal Revenue
Service for Sandulescu's individual income taxes plus interest as
of the Petition Date in the approximate will be paid at closing.
The balance of the sale proceeds, less any standard closing costs
assessed against the Seller, will be placed in an escrow account
with Debtors' counsel, Strobl & Sharp, P.C., until the time of
confirmation of the Debtors' plan of reorganization. Upon the
entry of an order confirming plan, Strobl & Sharp, P.C., acting as
escrow agent, will distribute funds pursuant to the order
confirming plan.
Due to the need to transition the Property as quickly as possible
and in order to protect and preserve the Property, Debtor
Sandulescu asks that the Court waives the stay as set forth in Fed.
R. Bank. P. 6004 (h).
A copy of the Agreement attached to the Motion is available for
free at:
http://bankrupt.com/misc/Dumitru_Medical_53_Sales.pdf
About Dumitru Medical Center
Dumitru Medical Center PC, Doctor One House Call Physicians PC and
their president Dumitru O. Sandulescu sought protection under
Chapter 11 of the Bankruptcy Code (Bankr. E.D. Mich. Lead Case No.
18-52936) on Sept. 21, 2018.
In the petitions signed by Mr. Sandulescu, DMC, estimated assets of
less than $1 million and liabilities of less than $1 million.
Doctor One estimated less than $1 million in assets and less than
$500,000 in liabilities.
The Debtors tapped Lynn M. Brimer, Esq., at Strobl & Sharp, PC, as
their bankruptcy counsel.
DWS CLOTHING: Voluntary Chapter 11 Case Summary
-----------------------------------------------
Debtor: DWS Clothing Too, LLC
501 E. Camino Real
Boca Raton, FL 33432
Business Description: Operating as Alene Too, the company sells
women's clothes.
Chapter 11 Petition Date: December 14, 2018
Court: United States Bankruptcy Court
Southern District of Florida
Case No.: 18-25551
Judge: Hon. Mindy A. Mora
Debtor's Counsel: Jordan L. Rappaport, Esq.
Rappaport Osborne & Rappaport, PLLC
1300 N. Federal Hwy, Suite 203
Boca Raton, FL 33432
Phone: 561-368-2200
E-mail: office@rorlawfirm.com
Estimated Assets: $0 to $50,000
Estimated Liabilities: $1 million to $10 million
The petition was signed by Maxine Schwartz, member.
A full-text copy of the petition containing, among other items, a
list of the Debtor's unsecured creditors, is available for free at
Pacer Monitor at:
https://www.pacermonitor.com/filings/100113662
EAT FIT GO: Proposes Public Auction of Superfluous Assets
---------------------------------------------------------
Eat Fit Go Healthy Foods, LLC, and its affiliates ask the U.S.
Bankruptcy Court for the District of Nebraska to authorize the sale
of superfluous assets owned by of Eat Fit Go Healthy Foods - Omaha,
LLC, Eat Fit Go Healthy Foods - Kansas City, LLC, Eat Fit Go
Healthy Foods - Des Moines, LLC, Eat Fit Go Kansas City Kitchen,
LLC, Eat Fit Go Healthy Foods.
A copy of the list of Assets to be sold attached to the Motion is
available for free at:
http://bankrupt.com/misc/Eat_Fit_Go_122_Sales.pdf
The Debtors have shuttered certain operations and have determined
that it is in possession of a large number of superfluous assets
that they no longer require. They've concluded that the best
mechanism for maximizing the value to the Assets is through the
sale of the unused equipment by way of public auction. They
believe that the Sale of the Assets pursuant to the terms set forth
will maximize the recovery for their estate.
To assist them with the Sale of the Assets, the Debtors have
engaged the Auction Mill, a Nebraska entity and experienced
auctioneer of food service equipment. Under the terms of the
Auction Agreement, the Debtors will pay Auction Mill a commission
of 10% of the gross auction sale from the proceeds of the Sale.
Auction Mill intends to conduct an online auction to liquidate the
assets.
The Debtors cannot reasonably determine, at this time, the amount
of taxable income Debtors may realize from the Sale. However, it
is possible that they will incur taxable income as a result of the
Sale.
The Court may review a proposed sale to determine whether parties
received adequate notice of the Motion. The Debtors will provide
adequate notice of the hearing on the Motion by providing notice
to: (a) all entities known to have expressed an interest in a
transaction with respect to the Assets; (b) all entities known to
have asserted any lien, claim, interest, or encumbrance in or upon
the Assets, including Access Bank; (c) the United States Trustee's
office; and (d) any Official Committee of Unsecured Creditors as
may be appointed in this Chapter 11 Case, or in the absence of such
a committee, to the creditors included on the consolidated list
filed by the Debtors. The Sale Notice is reasonably calculated to
provide timely and adequate notice to Debtors' major creditor
constituencies.
Having exercised sound business judgment, the Debtors have
determined that the Sale of the Assets free and clear of all
Interests, excluding the Excepted Interests, is in the best
interests of the Debtors, the estates, and the creditors thereof.
As such, the Sale should be approved free and clear of all
Interests, excluding the Excepted Interests.
In order to permit the Sale to proceed as expeditiously as possible
and to avoid further degradation or loss of value to the Assets,
good cause exists to waive the 14 day stay provided in Rule
6004(h).
About Eat Fit Go Healthy Foods
Founded in 2015, Eat Fit Go Healthy Foods, LLC, offers a one-stop
shopping where a customer can purchase breakfast, lunch, dinner,
and snacks that are pre-cooked, pre-portioned, ready-to-eat meals.
Eat Fit Go Healthy Foods and its affiliates sought protection under
Chapter 11 of the Bankruptcy Code (Bankr. D. Neb. Case Nos.
18-81121 to 18-81130) on July 31, 2018. In the petitions signed by
CEO Jenifer Cain, each debtor estimated $500,000 to $1 million in
assets and liabilities. Judge Thomas L. Saladino presides over the
cases.
ELI KAFIF: YFL Buying Brooklyn Property for $1.25 Million
---------------------------------------------------------
Eli Kafif and Mary Kafif ask the U.S. Bankruptcy Court for the
Eastern District of New York to authorize the private sale of the
the real property known as and located at 1821 East 14th Street,
Brooklyn, New York to YFL Groups, LLC for $1.25 million.
The Property is a 3,725 sq. ft. multifamily residential unit that
consists of a total of a 6-bedroom and 4.5 bathrooms with an
attached garage, situated on a 2,000 sq. ft. lot.
Subject to the Court's approval, the Debtors ask approval to
privately sell the Real Property to the Purchaser on these terms
and conditions of their Sale Agreement, dated July 24, 2018:
a. Seller: Eli Kafif and Mary Kafif, (Debtors) and Mr. Hafif
(Non-Debtor).
b. Purchaser: YFL Groups LLC,
c. Purchase Price: $1.25 million
d. Down Payment: $62,500, which is being held in the escrow
account of Alla Kachan, Esq., attorney for the Debtor
e. Balance to be Paid: $1,187,500
f. Purchased Property: 1821 East 14th Street, Brooklyn, New
York 11229.
g. Closing Date: The closing date will take place within
30-days of the Court's approval of the sale, at a time and place
mutually agreeable to the Sellers and the Purchaser.
At this time, the Debtors ask for the Court's approval of the sale
of their Real Property free and clear of all liens, claims and
encumbrances to the Purchaser. All of the sale proceeds will be
received by them, with all liens, claims and encumbrances to attach
to the proceeds.
The Debtors believe that an immediate private sale of the Property
is in the best interests of the creditors and the estate at large,
as the Sale of the Property will allow the Debtor to resolve the
claim of Dodi Kafif and effectuate the settlement with RNJ Realty
as well as fully satisfy the claim of secured Creditor, Seterus and
any other undisputed, unsecured claims will be paid in accordance
with either the claims filed or a written agreement reducing the
claim amount.
The proceeds from the sale of Debtors' Real Property, less
administrative and processing fees, will be held in the escrow
account of the Debtor's attorney, held in the court approved
depository, TD Bank, pending the confirmation of a plan of
reorganization, or further ruling from the Court, to be distributed
as follows:
a. Claim No. 16 of Seterus Inc., will receive payment in full
of its allowed claim, plus legal fees and expenses according to the
terms of .
b. Claim No. 22 of Dodi Hafif will be paid in full settlement
of the claim in accordance with the settlement terms reached by the
parties, subject to Rule 9019 of the Bankruptcy Court.
c. Claim No. 21 of RNJ $290,000 in full settlement of the
claim in accordance with the settlement terms reached by the
parties, subject to Rule 9019 of the Bankruptcy Court.
d. Undisputed, unsecured claims will be paid in accordance
with either the claims filed or a written agreement reducing the
claim amount. Avoided liens will not receive a distribution.
It is the Debtors' believe that the Purchaser's offer of $1.25
million from the sale of the Debtors' Real Property is sufficient
to provide for the complete distribution to the Debtors' Creditors
in accordance with either the claims filed or a written agreement
to other terms to be incorporated into the plan of reorganization,
as such, it is imperative that the Court allows the sale of their
Real Property, in the best interest of the Creditors and the
estate.
The Purchaser came to the Debtors through the efforts of United
National Realty who, for several months have been marketing the
Property by utilizing featured listings advertised on various
online mediums, coordinating with the tenants to conduct showings
and re-showings, as well as managing necessary paperwork and acting
as liaison with the bank, attorneys, etc. to facilitate a smooth
transaction. Further details have been provided in a letter dated
Nov. 1, 2018 from the principle of the broker, Michael Dukhovny.
The Debtor's agreement with the broker, as approved by the Court,
provides that the broker will receive 5% of the sales price as a
commission, for a total commission of 5%, and the Debtor asks that
the Court approves the commissions of 5% of the sales price for
said broker.
Finally, the Debtors ask that the Court, in its discretion, waives
the 14-day stay imposed by Rule 6004(h).
A hearing on the Motion is set for Dec. 6, 2018 at 3:00 p.m.
Eli Kafif and Mary Kafif sought Chapter 11 protection (Bankr.
E.D.N.Y. Case No. 16-41959) on May 4, 2016. The Debtors tapped
Alla Kachan, Esq., as counsel.
ENERGY FUTURE: Dismissal of S. Fenicle Reserve Fund Bid Upheld
--------------------------------------------------------------
In the case captioned SHIRLEY FENICLE, INDIVIDUALLY, AND AS
SUCCESOR-IN-INTEREST TO THE ESTATE OF GEORGE FENICLE, et al.,
Appellants, v. THE EFH PLAN ADMINISTRATOR BOARD, et al., Appellees,
SHIRLEY FENICLE, INDIVIDUALLY, AND AS SUCCESOR-IN-INTEREST TO THE
ESTATE OF GEORGE FENICLE, et al., Appellants, v. THE EFH PLAN
ADMINISTRATOR BOARD, et al., Appellees, Civil Action Nos.
18-877-RGA, 18-878-RGA (D. Del.), District Judge Richard G. Andrews
affirmed the Bankruptcy Court's order dismissing Appellants' Motion
for Establishment of a Reserve Fund as moot.
Appellant asserted that the Bankruptcy Court erred in dismissing
the Reserve Motion as moot after denying its substantial
contribution application. Appellee asserted (1) Appellants waived
their right to appeal the mootness issue, (2) that the Bankruptcy
Court did not err in determining the motion was moot, and (3) if
dismissal was error, the motion should not be granted.
The Bankruptcy Court thought a reserve motion should be granted
because a reversal on the confirmation plan or substantial
contribution appeals was likely, it would not have dismissed the
Reserve Motion as moot. Moreover, the Bankruptcy Court stated that
it believed it was unlikely that Appellant's confirmation appeal
would be successful. In conjunction with the Bankruptcy Court's
determination that Appellants had not yet made a substantial
contribution to the estate to warrant fees, the Bankruptcy Court's
dismissal is tantamount to a denial of the Reserve Motion.
The Court therefore finds that the Bankruptcy Court's dismissal of
the Reserve Motion was within its discretion, and that the
Bankruptcy Court did not abuse its discretion in doing so.
At oral argument, Appellants pressed for an expedited decision on
the Reserve Motion appeal. Appellants argued that the confirmed
plan would soon be implemented and that the $675 million fund would
be exhausted once the plan was implemented. Throughout the oral
argument, Appellants emphasized that there are no stays preventing
the funds from being disbursed. In response, Appellees argued the
proper remedy was for Appellants to seek a stay while pursuing
their appeals on the substantial contribution issues. Appellants
have not done so.
A copy of the Court's Memorandum Order dated Nov. 26, 2018 is
available at https://bit.ly/2EodqSt 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, Aparna
Yenamandra -- aparna.yenamandra@kirkland.com -- Kirkland & Ellis
LLP, pro hac vice, 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 -- cstephenson@bk-legal.com -- Bielli & Klauder,
LLC.
Energy Future Intermediate Holding Company LLC, Appellee,
represented by Joseph H. Huston, Jr. -- hh@stevenslee.com --
Stevens & Lee.
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
FLAMINGO/TENAYA: Seeks to Hire Kung & Brown as Legal Counsel
------------------------------------------------------------
Flamingo/Tenaya, LLC, seeks approval from the U.S. Bankruptcy Court
for the District of Nevada to hire Kung & Brown as its legal
counsel.
The firm will advise the Debtor regarding its duties under the
Bankruptcy Code; assist in the preparation of a plan of
reorganization; and provide other legal services related to its
Chapter 11 case.
A.J Kung, Esq., and Brandy Brown, Esq., the attorneys who will be
handling the case, will each charge an hourly fee of $475. The
hourly rate for the paralegals assigned to the case is $125.
The firm's attorneys are "disinterested" as defined in section
101(14) of the Bankruptcy Code, according to court filings.
Kung & Brown can be reached through:
A.J. Kung, Esq.
Brandy Brown, Esq.
214 S. Maryland Parkway
Las Vegas, NV 89101
Phone: (702) 382-0883
Fax: (702) 382-2720
Email: ajkung@ajkunglaw.com
Email: bbrown@ajkunglaw.com
About Flamingo/Tenaya LLC
Based in Las Vegas, Nevada, Flamingo/Tenaya, LLC is engaged in
activities related to real estate. It filed as a domestic limited
liability company in Nevada on March 5, 2003.
Flamingo/Tenaya sought protection under Chapter 11 of the
Bankruptcy Code (Bankr. D. Nev. Case No. 17-16614) on Dec. 12,
2017. At the time of the filing, the Debtor estimated assets of $1
million to $10 million and liabilities of $1 million to $10
million. The case has been assigned to Judge Laurel E. Davis.
FOOT AND ANKLE: Case Summary & 6 Unsecured Creditors
----------------------------------------------------
Debtor: Foot and Ankle Healthcare Center, Ltd.
5501 W. Belmont
Chicago, IL 60641
Business Description: Specializes in the medical and surgical
management of foot and ankle disorders.
Chapter 11 Petition Date: December 14, 2018
Court: United States Bankruptcy Court
Northern District of Illinois
Case No.: 18-34613
Judge: Jacqueline P. Cox
Debtor's Counsel: Ben Schneider, Esq.
Schneider & Stone
8424 Skokie Blvd., Suite 200
Skokie, IL 60077
Phone: 847-933-0300
E-mail: ben@windycitylawgroup.com
Total Assets: $1 million to $10 million
Total Liabilities: $1 million to $10 million
The petition was signed by Vadim Goshko, president.
A full-text copy of the petition containing, among other items, a
list of the Debtor's six unsecured creditors, is available for free
at Pacer Monitor at:
https://www.pacermonitor.com/filings/100113747
FRASER'S BOILER: UST's Exculpation Objections to Plan Overruled
---------------------------------------------------------------
In its Objection to the Debtor Fraser's Boiler Service, Inc.'s
First and Second Amended Plans of Reorganization, the United States
Trustee objected to certain releases and exculpations contained in
the Debtor's Second Amended Plan and the accompanying Liquidating
Trust Agreement. Certain London Market Insurers and National Union
Fire Insurance Company of Pittsburgh, PA joined the UST's
Objection. Oral argument on these issues was heard on Oct. 22,
2018.
Upon analysis, Bankruptcy Judge Brian D. Lynch overruled the
exculpated parties objection, overruled the exculpated acts
objection and sustained the Trust Agreement objection.
At the Oct. 22 hearing, the UST advised the Court that some of the
release and exculpation objections would be resolved by the
Debtor's forthcoming amendments to the Plan to (a) remove Receiver
Resource Transition Consultants LLC from the list of exculpated
parties and (b) remove Paragraph 9.7, which provided a release for
the Debtor's present director, officer, and employee, David Gordon.
The Debtor's Third Amended Plan of Reorganization has now been
filed.
The remaining objections to the release and exculpation provisions
in the Plan and Liquidating Trust Agreement are as follows:
1) the exculpation provision in Paragraph 9.5 of the Plan is too
broad because it includes non-estate fiduciaries (the Exculpated
Parties Objection);
2) the exculpation provision in Paragraph 9.5 of the Plan is too
broad because it exculpates negligence, legal malpractice, and
breaches of fiduciary duty (the Exculpated Acts Objection); and
3) the exculpation provision in Paragraph 4.4 of the Liquidating
Trust Agreement is inappropriate because it covers fiduciaries who
will not provide any services during the chapter 11 case and
because it releases the Liquidating Trustee and the Trust Advisory
Committee (TAC) from their fiduciary obligations (the Trust
Agreement Objection).
With regard to the exculpated parties objection, the UST asserts
that the exculpation clause improperly includes the Debtor's and
the Official Unsecured Creditors Committee's "respective agents,
attorneys, financial advisors, accountants, investment bankers,
members, directors, officers, employees, and representatives,
successors and assigns."
Debtor responds that these exculpations for agents and
professionals are common for plans of reorganization and "exist to
allow debtors to minimize duplicative or collateral litigation[]
that would require estate agents and professional[s] to demand
higher compensation to compensate for the risk of future litigation
costs."
Paragraph 9.5 exculpates "any act taken or omitted to be taken
since the Commencement Date in connection with, or arising out of,
the Chapter 11 Cases, the formulation, dissemination, confirmation,
consummation, or administration of the Plan, the Plan, the
Disclosure Statement or any contract, instrument, document or other
agreement related thereto; . . . ." While this language makes clear
that only post-petition acts will be exculpated, it is not
sufficiently clear when the exculpation will end and that
post-Effective Date acts will not be exculpated. A clear temporal
limitation is important in this case because acts related to the
Liquidating Trust may occur after the Effective Date, but should
not be exculpated under the Plan.
Therefore, while the Court will allow the inclusion of the Debtor's
and the Committee's "respective agents, attorneys, financial
advisors, accountants, investment bankers, members, directors,
officers, employees, and representatives, successors and assigns"
in the list of exculpated parties, the Court will only confirm a
plan containing Paragraph 9.5 if the Debtor adds language to
further clarify that Paragraph 9.5 does not exculpate
post-Effective Date acts. The Exculpated Parties Objection is
otherwise overruled.
The UST next asserts that if the Court allows the exculpation of
the Debtor's and the Committee's agents and professionals, then
negligence, legal malpractice, and breaches of fiduciary duty
should be added to the exculpation exceptions for these parties.
The Bankruptcy Court in WCI Cable, Inc. further observed that, "in
general, decisions in the Ninth Circuit appear not to favor
exculpation or indemnification provisions that limit liability for
negligence or breaches of fiduciary duties." However, post-WCI
Cable, several bankruptcy courts within the Ninth Circuit have
approved exculpation clauses that extend to the plan proponent's
agents and professionals without the addition of such exceptions.
Thus, it appears common among bankruptcy courts within the Ninth
Circuit to allow exculpation clauses that do not include exceptions
for breaches of fiduciary duty, legal malpractice, or ordinary
negligence. The Exculpated Acts Objection is overruled.
Paragraph 4.4 of the Liquidating Trust Agreement exculpates the
Liquidating Trustee and the TAC, except for breaches of trust
committed in bad faith or willful misappropriation.
The UST objects to this exculpation for two reasons. First, the UST
asserts that it is inappropriate to provide such an exculpation
because the Liquidating Trustee and TAC have not yet done anything
in this chapter 11 case and will not exist until after a plan is
confirmed. Second, the UST contends that any such exculpation
clause that does not include an exception for breaches of fiduciary
duty is inappropriate because the Liquidating.
Exculpation clauses approved at confirmation are "limited to the
fiduciaries who have served during the chapter 11 proceeding,"
including the estate professionals, the committee and its members,
and the debtor's directors and officers. The Liquidating Trustee
and TAC, however, will not exist in their respective capacities
until after a plan is confirmed in this case and the Liquidating
Trust is formed. Accordingly, the Liquidating Trustee and TAC have
not done anything yet that warrants exculpation or release.
Moreover, the Court cannot determine at confirmation how the
Liquidating Trustee and TAC "will prospectively make a substantial
contribution to the Plan or that their actions will result in a
substantial recovery for creditors or the equity security holders."
Therefore, the exculpation provided to the Liquidating Trustee and
TAC in Paragraph 4.4 of the Liquidating Trust Agreement is
inappropriate and should be removed. The Trust Agreement Objection
is sustained.
The bankruptcy case is in re: FRASER'S BOILER SERVICE, INC.,
Debtor, Case No. 18-41245 (Bankr. W.D. Wash.).
A copy of the Court's Memorandum Decision dated Nov. 20, 2018 is
available at https://bit.ly/2rzWq3N from Leagle.com.
Fraser's Boiler Service, Inc., Debtor, represented by Eisenhower
Carlson PLLC, Darren R. Krattli -- dkrattli@eisenhowerlaw.com --
Eisenhower Carlson PLLC, Danial D. Pharris -- pharris@lasher.com --
Lasher Holzapfel Sperry & Ebberson PLLC, Katrina Self --
kself@eisenhowerlaw.com -- Eisenhower Carlson PLLC & Daniel I.
Wolf, Gilbert LLP.
United States Trustee, US Trustee, represented by Sarah R. Flynn.
Mark D. Waldron, Creditor Comm Atty, pro se.
Official Unsecured Creditors Committee, Creditor Committee,
represented by Mark D. Waldron, Law Offices of Mark D. Waldron,
PLLC.
About Fraser's Boiler Service
Headquartered in Olympia, Washington, Fraser's Boiler Service,
Inc., is a boiler, tank, and shipping container manufacturer.
Fraser's Boiler Service sought chapter 11 protection (Bankr. W.D.
Wash. Case No. 18-41245) on April 9, 2018. In the petition signed
by David J. Gordon, president, the Debtor estimated assets at $10
million to $50 million and liabilities at $50 million to $100
million.
Judge Brian D. Lynch presides over the case. The Debtor tapped
Darren R. Krattli, Esq., of Eisenhower Carlson PLLC, as its legal
counsel.
GRATE ENTERPRISES: S&T Buying Morgantown Denny's Resto for $1.2M
----------------------------------------------------------------
Grate Enterprises, Inc., asks the U.S. Bankruptcy Court for the
Northern District of West Virginia to authorize the sale of
interest in the improved real property known as Grate Enterprises,
Inc., doing business as Denny's Restaurant, 258 Retail Circle,
Morgantown, Monongalia County, West Virginia, to S & T Restaurants,
Inc., for $1.2 million, subject to overbid.
The Debtor owns Property, consisting of 1.194 acres, more or less,
improved by a Denny's Restaurant. As of the date of the petition,
the Debtor valued the Property at $2.2 million.
As of Nov. 30, 2018, First United Bank & Trust has a secured first
lien on the Property of approximately $2,045,061 with interest,
late charges and expenses continuing to accrue thereon. Prior to
the Debtor filing the case, First United notified the Debtor that
it intended to foreclose on the Property.
As of the date of the petition, Two Banana Construction, LLC has a
secured judgment lien on the Property of approximately $54,998.
As of the date of the petition, the Debtor has unsecured claims
totaling approximately $14,998 and tax liens totaling approximately
$70,113 as follows: (a) Monongalia County Sheriff Tax Office
personal and real estate tax totaling $33,909; and (b) West
Virginia State Tax Department for sales and use tax totaling
approximately $36,204.
The Debtor desires to sell the Property. It has a Contract for the
sale of the Property and all personal property, including the
Debtor's Franchise Agreement with Denny's Inc., in the amount of
$1.2 million with the Proposed Buyer, whose mailing address is 699
Rodi Road, Pittsburgh, PA 15235, which will be paid at the time of
settlement. Under the Contract, the sale of the Property by the
Debtor to the Proposed Buyer is required to be free and clear of
all Liens. The Property is sold "as is" subject only to the terms
and conditions outlined in the contract for sale.
Sound business justifications support the Court's approval of the
proposed sale of the Property. The Debtor believes that the sale
to the Buyer on the terms set forth in the Contract are fair,
reasonable and in the best interests of its estate. At this time,
as the Property is distressed by a potential foreclosure by First
United, a sale is viewed as the only practical way the value of
estate assets may be maximized.
From the sale proceeds, the Debtor proposes to pay the costs of the
sale. It estimates that, after the payment of the costs of sale,
net proceeds will be realized from the sale from which the Debtor
proposes to pay the costs of sale (including a commission to the
Debtor's proposed real estate consultant), usual and customary
closing costs, and a cashier's check or certified funds in the
amount of 10% partial payment of secured claims in the order of
their respective priority. The Debtor does not anticipate the
receipt of sufficient sales proceeds to pay secured claims in full
and the Debtor does not anticipate a distribution to unsecured
creditors.
The deadlines set forth concerning objections to a proposed sale
supersede those provided in Fed. R. Bankr. P. 6004(b).
Any party interested in purchasing the Property will be required to
submit to the counsel for the Debtor by not later than Noon on Jan.
31, 2019 its upset bid. Such Upset Bid will be in an amount equal
to or in excess of the Alternative Minimum Bid of $1.25 million,
together with an earnest money deposit in cash in the amount of
$25,000. The Debtor, in the Debtor's discretion, will determine if
any such Upset Bid is a qualified bid based on the terms of the
Upset Bid, and the Upset Bidder's financial ability to consummate
the proposed purchase at or in excess of the Alternative Minimum
Bid price.
If one or more qualified Upset Bids are received by the Upset Bid
Deadline, an auction will be conducted among the Proposed Buyer and
all qualified Upset Bidders in the Bankruptcy Court on Feb. 8, 2019
at 11:00 a.m., in Clarksburg, West Virginia. The Debtor will
select the bid at the conclusion of the upset bid process that the
Debtor believes to be the highest or best value for the Property.
Immediately following the conduct of the auction at the Court as
proposed to be scheduled, the Debtor will ask approval by the Court
of the sale of the Property to the Winning Bidder; at which time
any persons objecting to the sale to said Winning Bidder may
interpose any such objections to the Court.
The Debtor asks the Court for an Order requiring the Debtor to file
a final report of sale with the Court in accordance with Fed. R.
Bankr. P. 6004.
A copy of the Agreement attached to the Motion is available for
free at:
http://bankrupt.com/misc/Grate_Enterprises_34_Sales.pdf
About Grate Enterprises
Grate Enterprises, Inc., is a franchisee of the Denny's Restaurant.
It owns in fee simple a building currently operated as Denny's
Restaurant and 1.194 acres SUR or Lot 3 Evansville Pike, First Ward
District in Monongalia County, West Virginia. The property has an
appraisal value of $2.5 million.
Grate Enterprises sought protection under Chapter 11 of the
Bankruptcy Code (Bankr. N.D. W.Va. Case No. 18-01069) on Nov. 22,
2018. At the time of the filing, the Debtor disclosed $2,856,754
in assets and $1,995,792 in liabilities. The Hon. Patrick M.
Flatley is the case judge. The Debtor tapped Gianola, Barnum,
Bechtel & Jecklin, LC as its legal counsel.
HERO INC: Asks Court to Approve Proposed Plan Outline
-----------------------------------------------------
HERO Inc. filed a motion asking the U.S. Bankruptcy Court for the
Eastern District of Pennsylvania to approve its proposed disclosure
statement in support of its chapter 11 plan of reorganization.
The Debtor also asks the Court to fix the last day for the
acceptance or rejection of the Plan and the filing of objections to
said Plan, and to fix a date for a hearing on the confirmation of
the proposed Plan.
Secured Claim of Nakida Jones, classified in Class 2, is impaired
under the Plan. The Class 2 Claim is impaired by the Debtor's
Property and other assets, which are de minimis. The value reached
by the Bankruptcy Court will become the new Class 2 Secured Claim
and will be paid out based upon a 15-year principal amortization
with interest accruing at a market rate fixed by the Bankruptcy
Court. Class 2 will retain its lien position until the Class 2
secured claim is paid. Any deficiency claims will be treated in
Class 3.
Unsecured Claims, classified in Class 3, is Impaired. Class 3
Claims total approximately $11,848.59, not including any amounts of
Class 2 Claims which may be determined to be unsecured and which
will also be included in Class 3 Claims. The Debtor will pay $5,000
to satisfy Class 3 Claims, thus creating a distribution of
approximately 42% per dollar amount of each Class 3 Claim. The
Debtor will make equal monthly payments on account of each Allowed
Class 3 Claim. Payments will commence the first day of the first
calendar month after the Effective Date and continue for 60
months.
The Debtor believes that it can successfully reorganize and even
fund its Plan payments through its continued operations.
A full-text copy of the Disclosure Statement dated December 6,
2018, is available at:
http://bankrupt.com/misc/paeb18-1813703amc-33.pdf
About HERO Inc.
Hero, Inc. is an organization that offers social services in
Philadelphia, Pennsylvania.
Hero sought protection under Chapter 11 of the Bankruptcy Code
(Bankr. E.D. Pa. Case No. 18-13703) on June 4, 2018. At the time
of the filing, the Debtor estimated assets of less than $500,000
and liabilities of $1 million to $10 million. The case is assigned
to Judge Ashely M. Chan. The Moretsky Law Firm is the Debtor's
counsel.
HOSNER HOLDINGS: Seeks to Hire Maxwell Dunn as Legal Counsel
------------------------------------------------------------
Hosner Holdings, Inc., seeks approval from the U.S. Bankruptcy
Court for the Eastern District of Michigan to hire Maxwell Dunn,
PLC as its legal counsel.
The firm will advise the Debtor regarding its duties under the
Bankruptcy Code; assist the Debtor in any potential sale of its
assets; prepare a bankruptcy plan; and provide other legal services
related to its Chapter 11 case.
Maxwell Dunn charges these hourly fees:
Ethan Dunn Attorney $325
Joshua Castmore Attorney $285
Tierney Eaton Hoffman Attorney $260
Anthony Smith Paralegal $150
Amie Lovins Paralegal $125
Scott Kass Legal Assistant $115
The firm received from the Debtor a retainer of $7,500, of which
$1,717 was used to pay the filing fee.
Ethan Dunn, Esq., at Maxwell Dunn, disclosed in a court filing that
he and other members of the firm are "disinterested" as defined in
Section 101(14) of the Bankruptcy Code.
The firm can be reached through:
Ethan D. Dunn, Esq.
24725 W. 12 Mile Road, Suite 306
Southfield, MI 48034
Phone: (248) 246-1166
E-mail: bankruptcy@maxwelldunnlaw.com
About Hosner Holdings
Hosner Holdings, Inc., owns and operates a real estate company that
specializes in the marketing, listing and selling of new and resale
homes, residential communities, condominiums, undeveloped land, and
commercial and investment opportunities.
Hosner Holdings sought protection under Chapter 11 of the
Bankruptcy Code (Bankr. E.D. Mich. Case No. 18-55404) on Nov. 14,
2018. At the time of the filing, the Debtor estimated assets of
less than $50,000 and liabilities of less than $1 million. Judge
Thomas J. Tucker oversees the case.
HOYT CONTRACTORS: Taps Phillip K. Wallace as Legal Counsel
----------------------------------------------------------
Hoyt Contractors, LLC, seeks approval from the U.S. Bankruptcy
Court for the Eastern District of Louisiana to hire Phillip K.
Wallace, PLC as its legal counsel.
The firm will advise the Debtor regarding its duties under the
Bankruptcy Code and will provide other legal services related to
its Chapter 11 case.
Phillip Wallace, Esq., the attorney who will be handling the case,
charges an hourly fee of $250. Paralegals charge $80 per hour.
Debtor has agreed to pay the firm a retainer of $7,500, plus the
filing fee of $ 1,717.
The firm neither represents nor holds any interest adverse to the
Debtor and its bankruptcy estate, according to court filings.
The firm can be reached through:
Phillip K. Wallace, Esq.
Phillip K. Wallace, PLC
4040 Florida Street, Suite 203
Mandeville, LA 70448-3305
Telephone: (985) 624-2824
Facsimile: (985) 624-2823
E-mail: Philkwall@aol.com
About Hoyt Contractors
Hoyt Contractors, LLC, sought protection under Chapter 11 of the
Bankruptcy Code (Bankr. E.D. La. Case No. 18-13255) on Dec. 7,
2018. At the time of the filing, the Debtor estimated assets of $1
million to $10 million and liabilities of less than $1 million.
Judge Elizabeth W. Magner oversees the case.
HUDSON'S BAY CO: S&P Alters Outlook to Stable on Debt Paydown
-------------------------------------------------------------
Toronto-based department store operator Hudson's Bay Co. (HBC)
expects to pay down significant debt with proceeds from multiple
transactions. At the same time, the company is generating stronger
EBITDA compared with last year. As a result, S&P Global Ratings
expects HBC's fiscal 2018 S&P Global adjusted pro forma
debt-to-EBITDA to improve to about 8.5x from 13.0x last year.
S&P revised its outlook on the company to stable from negative, and
affirmed all of its ratings on HBC, including its 'B' long-term
issuer credit rating on the company.
The stable outlook on Hudson's Bay Co. (HBC) reflects the company's
improving EBITDA and our expectation of stronger credit measures in
fiscal 2018, following significant debt repayment. For 2018, S&P
expects the company (North American operations) to generate
materially higher adjusted EBITDA (compared with breakeven EBITDA
at total HBC in 2017) as savings in selling, general, and
administrative (SG&A) costs more than offset declining revenue. The
company pursued major restructuring last year and saved about C$300
million in SG&A expenses in 2018. In addition, with the transfer of
HBC Europe's operations to a joint venture, HBC's pro forma EBITDA
benefits from strengthening operations in its core North American
business without being stressed by Europe's high cost base.
The stable outlook on HBC reflects S&P Global Ratings' view of the
company's fully adjusted debt leverage of about 8.0x and adjusted
EBITDA interest coverage of 2.0x through the next 12 months. We
expect the company to maintain these credit measures while
executing new strategies to improve EBITDA and cash flow from its
North American operations while maintaining sufficient liquidity
through this period.
S&P said, "We could lower the ratings if EBITDA interest coverage
weakens below 1.5x, in which case the company might consider
alternate means, including sale of key real estate assets, to shore
up liquidity and financial flexibility. In such a scenario, we
would expect flat-to-negative comparable-store sales or declining
sales. We could also lower the ratings if HBC's strong asset
coverage weakens, which we believe could only occur if the company
monetizes real estate with no offsetting reduction in reported debt
leverage, for example by distributing proceeds to shareholders or
making unsuccessful acquisitions.
"Even though not likely in the next 12 months, we could raise our
ratings on HBC if the company posts strong comparable-store sales
and delevers close to 6.0x. We could also raise the ratings if
EBITDA interest coverage improves higher than 2.5x, which would
reflect more cost efficiency and growing organic EBITDA."
Toronto-based HBC operates department stores in Canada and the U.S.
HBC's portfolio includes formats ranging from luxury to premium
department stores to off-price fashion shopping destinations. HBC's
banners include Saks Fifth Avenue, Hudson's Bay, Saks OFF 5th, Lord
& Taylor, and Home Outfitters.
S&P's base-case scenario incorporates the following key
assumptions:
-- Canada GDP to increase to 1.7% in 2019, and U.S. GDP to
increase to 2.3% in 2019
-- Forecast soft performance throughout the U.S. retail industry
for 2019
-- Revenues from North America to remain flat or to modestly
decline in 2019
-- However, improved operating efficiency should lead to lower
SG&A costs and modest improvement in EBITDA margins during S&P's
forecast period
-- Better working capital management leading to positive net
working capital through 2019
-- Annual net capital expenditures of about C$300 million-C$350
million
-- Net cash proceeds of about C$1.6 billion that will be used to
pay down balance-sheet debt
As a result, S&P expects HBC's adjusted debt-to-EBITDA and
EBITDA-to-interest coverage to be close to 8x and 2x, respectively,
through 2019.
S&P siad, "We assess HBC's liquidity as adequate. We expect that
sources of liquidity over the next 12 months will exceed uses by
1.2x and that sources would continue to exceed uses even if EBITDA
were to drop by 15%. We believe the company has a good relationship
with its banks but limited access to the credit markets."
Principal liquidity sources include:
-- Cash on hand of about C$27 million
-- About US$850 million available under the US$1.94 billion
asset-backed loan (ABL) facility due 2021 as of third-quarter 2018
-- Net proceeds of about C$1.6 billion from multiple real estate
transactions
Principal liquidity uses include:
-- Positive funds from operations in the range of C$100
million-C$150 million.
-- Capital expenditures (net of landlord incentives) of C$300
million-C$350 million in the next 12 months
-- Seasonal working-capital swings of C$300 million per year that
peak in the third quarter
-- Repayment of balance sheet debt with C$1.6 billion of net
proceeds
S&P's default scenario incorporates weaker sales and margins due to
weak merchandising and declining demand for HBC's products.
-- Assuming that the ownership of real estate persists into
payment default, the EBITDA decline associated with such a scenario
implies little value for the operating business in default.
-- S&P assumes that the company does not continue as a going
concern and use a discrete asset valuation (DAV) approach.
-- Mortgages and the ABL facility are considered priority
obligations, and the term loan B is first lien.
-- S&P assumes very few material assets other than inventories and
real estate that could be liquidated to return value to creditors.
-- S&P's DAV analysis results in about C$7.8 billion in asset
value.
-- After paying off the priority obligations (mortgages) and ABL
drawings of about C$3.2 billion, about C$4.2 billion remains for
the US$325 million term loan B outstanding by our estimate; the
original amount was US$1.085 billion.
-- Therefore, S&P expects very high recovery on the term loan B
(90%–100%: rounded estimate 95%).
-- S&P's estimate would be unchanged as HBC continues to pay down
the term loan.
-- Year of default: 2021
-- Valuation of assets and real estate: C$7.8 billion
-- Gross enterprise value: C$7.8 billion
-- Net recovery value for waterfall after administrative expenses
(5%): C$7.4 billion
-- Estimated priority claims: C$3.2 billion
-- Remaining recovery value: C$4.2 billion
-- Estimated first-lien claim: C$415 million
-- Value available for first-lien claim: C$4.2 billion
--Recovery range: 90%-100% (rounded estimate 95%)
ILLINOIS FINANCE AUTHORITY: S&P Cuts Ratings on 6 Tranches to CCC-
------------------------------------------------------------------
S&P Global Ratings lowered the following ratings on Illinois
Finance Authority's Better Housing Foundation, Ohio bonds:
-- Series 2016A multifamily housing revenue bonds (Shoreline
Portfolio project) to 'CCC-' (sf) from 'CCC' (sf);
-- Series 2016C multifamily housing revenue bonds (Shoreline
Portfolio project) to 'CCC-' (sf) from 'CCC' (sf);
-- Series 2017A multifamily housing revenue bonds (Icarus
Portfolio project), to 'CCC-' (sf) from 'CCC' (sf);
-- Series 2017B multifamily housing revenue bonds (Icarus
Portfolio project), to 'CCC-' (sf) from 'CCC' (sf);
-- Series 2018A-1 and 2018A-2 multifamily housing revenue bonds
(Ernst Portfolio project), to 'CCC-' (sf) from 'CCC' (sf); and
-- Series 2018B multifamily housing revenue bonds (Ernst Portfolio
project) to 'CCC-' (sf) from 'CCC' (sf).
The outlook on all of the ratings is negative.
"The negative outlook reflects our view of the likelihood that the
projects will fail to make their upcoming debt service payments on
June 1, 2019," said S&P Global Ratings credit analyst Raymond Kim.
According to the trustee, the borrower for all three transactions,
Better Housing Foundation (BHF), did not remit sufficient funds to
the trustee to fund its most recent debt service payments on Dec.
1, 2018. As a result, the debt service reserve funds were drawn
upon by all three projects to make their most recent payments.
J.P. APARTMENTS: Seeks Interim Approval to Use Cash Collateral
--------------------------------------------------------------
J.P. Apartments Cooperative seeks authority from the United States
Bankruptcy Court for the Southern District of Iowa for the interim
use of cash collateral.
The Debtor proposes that it will be authorized to use Cash
Collateral for the payment of its usual, ordinary, customary,
regular, and necessary post-petition expenses incurred in the
ordinary course of Debtor's business and for payment of those
pre-petition claims approved and allowed by Order of the Bankruptcy
Court and not otherwise.
The Debtor believes First Midwest Bank and Sherwin S. Kittleson
hold validly perfected and enforceable liens on and security
interests in, among other things, the Debtor's real property,
rents, revenues, deposit accounts, and all proceeds thereof, all as
more particularly described and evidenced by those several security
agreements, mortgages, and assignments of rent executed by the
Debtor on various dates.
The Debtor proposes that in consideration for its use of the cash
collateral and as adequate protection for any Diminution of Value
of the Secured Creditors' security interests, the Debtor will grant
to the Secured Creditors:
(a) A validly perfected first priority lien on and security
interest in the Debtor's post-petition Collateral subject to
existing valid, perfected and superior liens in the collateral held
by other creditors, if any, and the Carve-Out. The rights, liens
and interests granted to the Secured Creditors will be based on the
Secured Creditors' rights, liens and interests in the Debtor's Cash
Collateral pre-petition.
(b) In the event of, and only in the case of Diminution of
Value of the Secured Creditors' interest in the Collateral, a
super-priority claim that will have priority in the Debtor's
bankruptcy case over all priority claims and unsecured claims
against the Debtor and its estate, now existing or hereafter
arising, of any kind or nature whatsoever including, without
limitation, administrative expenses of the kinds specified in or
ordered pursuant to the Bankruptcy Code or otherwise. This
super-priority claim will be subject and subordinate only to the
Carve-Out.
(c) As further adequate protection, the Debtor will make
post-petition monthly payments to Secured Creditors in an amount
equal to 4.0% per annum on the existing balance due and owing on
the Petition Date, unless the Debtor and Secured Creditors agree to
a different or lesser amount.
The Carve-Out will include any fees due to the U.S. Trustee
pursuant to 28 U.S.C. Section 1930 and fees and expenses incurred
by the Debtor's professionals and approved by the Court in an
amount not to exceed $25,000.
The Debtor's authorization to use cash collateral will continue for
a period extending to and including the Confirmation Date or
dismissal of the case, on an interim and final basis, subject to
the following terms and conditions:
(a) All proceeds received from the Debtor's operations of
its business, in the ordinary course of its business, and the
collection of accounts receivable and profits, will be deposited in
the DIP Accounts. Only the ordinary and usual expenses necessary to
continue operation of the business, incurred after the commencement
of the bankruptcy case, will be paid from the DIP Accounts, and
other payments as the Court will allow from time to time.
(b) The Debtor will provide to the Secured Creditors an
initial aging of all accounts receivable and accounts payable, plus
total current operating expenses and total current collections.
This report will be updated and provided to the Secured Creditors
by the 30th day of each month thereafter.
(c) The Secured Creditors will, at any time, be permitted to
conduct a full inspection of the real estate property and accounts
of the Debtor by visiting the Debtor's premises to inspect, verify
and photocopy all such records and to inspect, appraise and
document the Collateral.
(d) The Debtor will prepare and provide the Secured
Creditors with a balance sheet and income statement existing as of
the filing date of Debtor's Petition. Within thirty days of each
successive month, the Debtor will provide an updated balance sheet
and income statement along with a copy of all monthly reports
provided to the Court and/or the U.S. Trustee.
(e) All Collateral will be insured to its full value, and
Debtor will otherwise comply with the terms and conditions of the
Secured Creditors, unless the insurance on the Collateral is
currently force placed by the Secured Creditor, in which case, if
the insurance lapses or is cancelled, the Debtor will assume
responsibility for insurance on the Collateral. Evidence of
insurance listing Secured Creditors as insured mortgagee/loss payee
will be provided within thirty days of the Petition Date.
(f) If at any time the Debtor fails to properly insure the
Collateral, fails to pay any local, state or federal taxes as they
become due, fails to pay fees required by the U.S. Trustee or fails
to comply with any other term of the Cash Collateral Motion, the
Secured Creditors will give the Debtor and its attorney written
notice that it has thirty days to cure such default after the
mailing or transmission of written notice of such default.
(g) Any termination of the automatic stay under the Motion
and any Order thereon will apply to the above Chapter 11 case or
any subsequent dismissal.
A full-text copy of the Debtor's Motion is available at
http://bankrupt.com/misc/iasb18-02566-15.pdf
About J.P. Apartments
JP Rentals, LLC and Jones Lease Properties, LLC are a locally owned
and operated rental property companies serving the Quad Cities and
surrounding areas. As the source for rental living, they offer a
wide variety of rental properties including apartment complexes,
single family homes, townhomes, and duplexes.
J.P. Apartments Cooperative, Jones Lease Properties, LLC and J.P.
Rentals, LLC, filed their voluntary petitions under Chapter 11 of
the Bankruptcy Code (Bankr. S.D. Iowa Case Nos. 18-02566, 18-02568,
and 18-02569, respectively) on Nov. 26, 2018. In the petition
signed by Erik R. Jones, director, J.P. Apartments disclosed
$4,765,888 in total assets and $4,689,693 in liabilities.
Bradshaw, Fowler, Proctor & Fairgrave PC, led by attorney Jeffrey
D. Goetz, is the Debtor's counsel; and GlassRatner Advisory &
Capital Group, LLC, as its financial advisor and investment banker.
J.P. RENTALS: Seeks Interim Approval to Use Cash Collateral
-----------------------------------------------------------
J.P. Rentals LLC requests the U.S. Bankruptcy Court for the
Southern District of Iowa to authorize the interim use of cash
collateral.
The Debtor proposes that it will be authorized to use Cash
Collateral for the payment of its usual, ordinary, customary,
regular, and necessary postpetition expenses incurred in the
ordinary course of Debtor's business and for payment of those
prepetition claims approved and allowed by Order of the Bankruptcy
Court and not otherwise.
The Debtor believes First Midwest Bank and Northwest Bank & Trust
Co. hold validly perfected and enforceable liens on and security
interests in, among other things, the Debtor's real property,
rents, revenues, deposit accounts, and all proceeds thereof, all as
more particularly described and evidenced by those several security
agreements, mortgages, and assignments of rent executed by the
Debtor on various dates.
The Debtor proposes that in consideration for its use of the cash
collateral and as adequate protection for any Diminution of Value
of the Secured Creditors' security interests, the Debtor will grant
to the Secured Creditors:
(a) A validly perfected first priority lien on and security
interest in the Debtor's post-petition Collateral subject to
existing valid, perfected and superior liens in the collateral held
by other creditors, if any, and the Carve-Out. The rights, liens
and interests granted to the Secured Creditors will be based on the
Secured Creditors' rights, liens and interests in the Debtor's Cash
Collateral pre-petition.
(b) In the event of, and only in the case of Diminution of
Value of the Secured Creditors' interest in the Collateral, a
super-priority claim that will have priority in the Debtor's
bankruptcy case over all priority claims and unsecured claims
against the Debtor and its estate, now existing or hereafter
arising, of any kind or nature whatsoever including, without
limitation, administrative expenses of the kinds specified in or
ordered pursuant to the Bankruptcy Code or otherwise. This
super-priority claim will be subject and subordinate only to the
Carve-Out.
(c) As further adequate protection, the Debtor will make
post-petition monthly payments to Secured Creditors in an amount
equal to 4.0% per annum on the existing balance due and owing on
the Petition Date, unless the Debtor and Secured Creditors agree to
a different or lesser amount.
The Carve-Out will include any fees due to the U.S. Trustee
pursuant to 28 U.S.C. Section 1930 and fees and expenses incurred
by the Debtor's professionals and approved by the Court in an
amount not to exceed $25,000.
The Debtor's authorization to use cash collateral will continue for
a period extending to and including the Confirmation Date or
dismissal of the case, on an interim and final basis, subject to
the following terms and conditions:
(a) All proceeds received from the Debtor's operations of
its business, in the ordinary course of its business, and the
collection of accounts receivable and profits, will be deposited in
the DIP Accounts. Only the ordinary and usual expenses necessary to
continue operation of the business, incurred after the commencement
of the bankruptcy case, will be paid from the DIP Accounts, and
other payments as the Court will allow from time to time.
(b) The Debtor will provide to the Secured Creditors an
initial aging of all accounts receivable and accounts payable, plus
total current operating expenses and total current collections.
This report will be updated and provided to the Secured Creditors
by the 30th day of each month thereafter.
(c) The Secured Creditors will, at any time, be permitted to
conduct a full inspection of the real estate property and accounts
of the Debtor by visiting the Debtor's premises to inspect, verify
and photocopy all such records and to inspect, appraise and
document the Collateral.
(d) The Debtor will prepare and provide the Secured
Creditors with a balance sheet and income statement existing as of
the filing date of Debtor's Petition. Within thirty days of each
successive month, the Debtor will provide an updated balance sheet
and income statement along with a copy of all monthly reports
provided to the Court and/or the U.S. Trustee.
(e) All Collateral will be insured to its full value, and
Debtor will otherwise comply with the terms and conditions of the
Secured Creditors, unless the insurance on the Collateral is
currently force placed by the Secured Creditor, in which case, if
the insurance lapses or is cancelled, the Debtor will assume
responsibility for insurance on the Collateral. Evidence of
insurance listing Secured Creditors as insured mortgagee/loss payee
will be provided within thirty days of the Petition Date.
(f) If at any time the Debtor fails to properly insure the
Collateral, fails to pay any local, state or federal taxes as they
become due, fails to pay fees required by the U.S. Trustee or fails
to comply with any other term of the Cash Collateral Motion, the
Secured Creditors will give the Debtor and its attorney written
notice that it has thirty days to cure such default after the
mailing or transmission of written notice of such default.
(g) Any termination of the automatic stay under the Motion
and any Order thereon will apply to the above Chapter 11 case or
any subsequent dismissal.
A full-text copy of the Debtor's Motion is available at
http://bankrupt.com/misc/iasb18-02569-18.pdf
About J.P. Apartments
JP Rentals, LLC, and Jones Lease Properties, LLC, are a locally
owned and operated rental property companies serving the Quad
Cities and surrounding areas. As the source for rental living,
they offer a wide variety of rental properties including apartment
complexes, single family homes, townhomes, and duplexes.
J.P. Apartments Cooperative, Jones Lease Properties, LLC and J.P.
Rentals, LLC, filed their voluntary petitions under Chapter 11 of
the Bankruptcy Code (Bankr. S.D. Iowa Case Nos. 18-02566, 18-02568,
and 18-02569, respectively) on Nov. 26, 2018. In the petition
signed by Erik R. Jones, director, J.P. Apartments disclosed
$4,765,888 in total assets and $4,689,693 in liabilities.
Bradshaw, Fowler, Proctor & Fairgrave PC, led by attorney Jeffrey
D. Goetz, is the Debtor's counsel; and GlassRatner Advisory &
Capital Group, LLC, as its financial advisor and investment banker.
JACKIE'S COOKIE: Case Summary & 20 Unsecured Creditors
------------------------------------------------------
Debtor: Jackie's Cookie Connection LLC
12109 Santa Monica Blvd.
Los Angeles, CA 90025
Business Description:
Chapter 11 Petition Date: December 17, 2018
Court: United States Bankruptcy Court
Central District of California
Case No.: 18-24571
Judge: Hon. Neil W. Bason
Debtor's Counsel: Derrick Talerico, Esq.
Zolkin Talerico LLP
12121 Wilshire Blvd., Suite 1120
Los Angeles, CA 90025
Phone: (424) 500-8552
Email: dtalerico@ztlegal.com
Total Assets: $100,001 to $500,000
Total Liabilities: $1,000,001 to $10 million
The petition was signed by Rachel Galant, managing member and CEO.
A full-text copy of the petition containing, among other items, a
list of the Debtor's 20 unsecured creditors is available for free
at:
https://www.pacermonitor.com/filings/100209760
JASON FLY: Dragon Woodland Buying DLL's Collateral for $136K
------------------------------------------------------------
Jason Fly Logging, LLC, and De Lage Landen Financial Services, Inc.
("DLL"), ask the U.S. Bankruptcy Court for the Northern District of
Mississippi to authorize the sale of DLL's collateral to Dragon
Woodland Corp. for $135,850.
As of the Petition Date, the Debtor, as the Borrower, and DLL, as
the Lender, were parties to three loan and security agreements:
Date Loan No. Amount Term Payment
---- -------- ------ ---- -------
8/18/2016 100-10118256 $229,245 60 $4,316
8/26/2016 100-10118628 $19,141 36 $572
10/18/2016 100-10118262 $48,228 48 $1,104
As security for the Agreements, the Debtor granted DLL valid,
enforceable, first-priority, perfected security interests in and
liens on the following logging equipment of the Debtor, together
with all components, additions, upgrades, attachments, accessions,
substitutions, replacements, and proceeds thereof: (i) 2016 Barko
495B loader, s/n 11649524338 with Robotec Grapple, s/n 118341-1-1;
(ii) 2016 Kodiak 48 Hydraulic Trailer, s/n 1B9MC4828GFBJ6179; (iii)
2016 CSI Ultra Delimber, s/n 26416014176; (iv) 2016 CSI DL 4400
Reversible Slasher, s/n 4415114110; (v) 2017 Pitts Lowboy LP40-4L
Plantation Log Trailer, s/n 5JYLP4024HPP03722; and (vi) 2017 Pitts
LB55-22DC Detached Lowboy Trailer, s/n 5JYLB553XHPP04637.
As further security for the Agreements, Jason Fly unconditionally
guaranteed the Debtor's obligations to DLL under the Agreements.
On the Petition Date, the Debtor owed DLL not less than $235,664
under the Agreements. On May 31, 2018, DLL filed its Motion of De
Lage Landen Financial Services, Inc. for Relief from Stay and
Abandonment or for Adequate Protection, seeking relief from the
automatic stay with respect to the Equipment due to the Debtor's
failure to make the monthly installment payments. The Court
subsequently entered an Adequate Protection Order, by which the
Debtor agreed, among other things, to make monthly
adequate-protection payments to DLL in the amount of $3,000.
The Debtor is in default of its obligations to DLL under the
Adequate Protection Order for failing to make the
adequate-protection payment due on Nov. 15, 2018.
In order to reduce its monthly costs and expenses, the Debtor has
decided, in its sound business judgment, to go ahead and sell now,
before Plan confirmation, the Equipment to the Purchaser for
$135,850, with all proceeds paid to DLL at closing, as is
contemplated under Jason Fly Logging, LLC's Amended Plan of
Liquidation.
The price allocated to each piece of Equipment is as follows:
Collateral Description Purchase Price
---------------------- --------------
Barko Loader & Equipment $98,250
2017 Pitts LP40-4L $11,700
Plantation Log Trailer $25,900
2017 Pitts Detached Lowboy
VIN ending 4637
--------
Total $135,850
The Debtor submits that selling the Equipment before Plan
confirmation is best for all interested parties because it saves
the Debtor $3,000 a month in adequate-protection payments and
insurance premiums for property in which it has no equity. Upon
information and belief, $135,850 is equal to or greater than the
appraised value of the Equipment. The Debtor and DLL have
considered all options and have concluded that a private sale to
the Purchaser for $135,850 is the highest and best price the
Equipment will fetch.
Neither the Debtor nor DLL is aware of any liens or other interests
encumbering the Equipment other than DLL's first-priority security
interest and lien.
The proposed order has been agreed to and approved for entry by the
Debtor, DLL, and the Purchaser. It provides, among other things,
that the sale of the Equipment to the Purchaser for $135,850 is
authorized; that the closing will occur within 10 business days of
entry of the order; that the sale proceeds will be paid directly to
DLL at closing; and that if the sale does not occur within 10
business days, the automatic stay will be lifted and the Equipment
will be abandoned from the estate, and DLL will be authorized to
foreclose on or otherwise obtain possession and dispose of the
Equipment in accordance with applicable nonbankruptcy law.
The Debtor and DLL respectfully ask a waiver of the 14-day stay of
any order granting this Motion. The closing the sale quickly
benefits the estate and parties in interest.
About Jason Fly Logging
Established in 2010, Jason Fly Logging, LLC, is a privately-held
logging company in Batesville, Mississippi. Jason Fly Logging
sought protection under Chapter 11 of the Bankruptcy Code (Bankr.
N.D. Miss. Case No. 18-10483) on Feb. 12, 2018. In the petition
signed by Jason Fly, member, the Debtor estimated assets and
liabilities of $1 million to $10 million. Judge Jason D. Woodard
presides over the case. Toni Campbell Parker, Esq., in Memphis,
Tennessee, serves as counsel to the Debtor.
JEFFREY HALL KAFKA: Loses G. Savin, S. Rhodes Lawsuit
-----------------------------------------------------
In the case captioned GREG SAVIN and SHAWN RHODES, Plaintiffs, v.
JEFFREY HALL KAFKA, Defendant, Adv. Proc. No. 17-03060 HLB (Bankr.
N.D. Cal.), Bankruptcy Judge Hannah L. Blumenstiel ruled in favor
of Plaintiffs Greg Savin and Shawn Rhodes on their claim for
declaratory relief.
The case came before the court on Sept. 10 and 11, 2018 for trial
on Plaintiffs Savin and Rhodes' Complaint for Equitable Relief and
Determination of Dischargeability of Debt. In their complaint,
Savin and Rhodes seek a judgment declaring that (a) they and
Defendant Jeffrey Kafka are partners in a general partnership
("NorCal KRS" or "NorCal Burlingame") that owns real property
located at 1101 Douglas Avenue in Burlingame, California (the
"Property"); or (b). Savin and Rhodes each own a one-third interest
in the Property.. Savin and Rhodes also seek a judicial dissolution
of their partnership, judicial supervision over the winding up of
the partnership including an accounting, and a judgment liquidating
and awarding damages against Mr. Kafka for alleged
misrepresentations, breach of fiduciary duty, and misappropriation
of partnership assets and declaring those damages
nondischargeable.
Kafka filed an answer and counterclaim asserting alter ego and
agency liability, with claims against Savin and Rhodes for breach
of contract, conversion, breach of co-tenant obligations, and
damages therefrom. The court bifurcated the issues to be tried,
first addressing the claim for declaratory relief regarding the
parties' respective interests in the Property, and staying the
adversary proceeding as to all other claims for relief. So, the
only issue before the court at trial was the ownership of the
Property.
The court finds and concludes that prior to, during, and after the
purchase of the Property, the parties intended to own the Property
jointly, whether as individuals or through NorCal KRS; that Phil
Savin loaned the parties $65,000 for the purpose of buying the
Property; and that Mr. Kafka held title to the Property
individually solely for the convenience of the parties at the time
of the purchase of the Property. The court also finds that the
parties always intended to transfer the Property out of Mr. Kafka's
name once they arranged financing to replace the purchase money
financing, but that the business failed before the parties could
refinance the debt. Finally, the court finds that there was no
rental agreement -- oral or otherwise -- between NorCal KRS and Mr.
Kafka, and that NorCal KRS paid the carrying costs of the Property
and the cost of renovations based on the parties' understanding
that the Property constituted a jointly-owned asset.
Reaching these conclusions, the court turns to Savin and Rhodes'
legal arguments: that Mr. Kafka holds the Property in a resulting
trust for the benefit of NorCal KRS, or for the parties' respective
individual benefit. Mr. Kafka asserts that he is the sole owner of
the Property, that Savin and Kafka have no writing to show that
they have an interest in the Property, and that they cannot meet
their burden of showing by clear and convincing evidence that a
resulting trust exists.
The Court holds that the evidence clearly and convincingly shows
that, contrary to Kafka's assertion that they abandoned the
Property after NorCal KRS folded, Savin and Rhodes remained
actively involved and concerned about possible foreclosure. Kafka
regularly communicated with them about his efforts to obtain a loan
modification, to avoid foreclosure, to obtain new tenants, and when
he might be able to start paying rent. Kafka did not include the
Property in his 2011 Declaration of Disclosure in his divorce
proceeding and did not declare any of the purported rental income
from NorCal KRS on his personal tax return. The court concludes
that Kafka, Savin, and Rhodes intended to own the Property together
for their business purposes before, during, and after the Property
was purchased in Kafka's name; and that Kafka held title to the
Property in a resulting trust in favor of all three parties,
equally.
Thus, the court rules in favor of Savin and Rhodes on their claim
for declaratory relief and finds that they and Kafka are entitled
to equitable one-third interests in the Property, which Kafka, as
holder of bare legal title, holds in a resulting trust for the
benefit of all three parties.
The bankruptcy case is in re: JEFFREY HALL KAFKA, Chapter 11,
Debtor, Case No. 17-30013 HLB (Bankr. N.D. Cal.).
A copy of the Court's Memorandum Decision dated Nov. 21, 2018 is
available at https://bit.ly/2SJem7B from Leagle.com.
Greg Savin & Shawn Rhodes, Plaintiffs, represented by Stephen D.
Finestone -- sfinestone@fhlawllp.com --Finestone Hayes LLP.
Jeffrey Hall Kafka, Defendant, represented by Peter Winkler, Law
Offices of Peter Winkler.
JOSEPH PORADA: Rathje & Woodward Awarded $63K
---------------------------------------------
Bankruptcy Judge Timothy A. Barnes issues his findings of facts and
conclusions of law in support of the order awarding to Rathje &
Woodward, LLC, special counsel for Debtor Joseph J. Porada, Jr.,
for allowance and payment of first interim compensation and
reimbursement of expenses.
The firm's total requested fees is $63,332 and total requested
costs is $2,958.70.
The Court imposed a 10% penalty on entries that appear to be
"lumping." Total disallowed amount is $539.
The Court denied the allowance of compensation for several tasks as
the description of each task fails to identify in a reasonable
manner the service rendered. Total disallowed amount is $1,672.50.
The court denied requests for fees relating to services that do not
benefit the estate or that are not necessary to the administration
of the case. Expenses for a counsel's routine in town travel
expenses confer no benefit to the estate and are not reimburseable
in this district absent an explanation regarding necessity. Total
disallowed amount is $18.
In sum, the total fees and costs allowed is $64,061.10.
The bankruptcy case is in re: JOSEPH J PORADA JR., Chapter 11,
Debtor, Case No. 17bk36268 (Bankr. N.D. Ill.).
A copy of the Court's Findings dated Nov. 27, 2018 is available at
https://is.gd/6X7Wxg from Leagle.com.
Joseph J Porada, Jr., Debtor 1, represented by Terence G. Banich --
tbanich@foxrothschild.com -- Fox Rothschild LLP & Christina
Sanfelippo -- csanfelippo@foxrothschild.com -- Fox Rothschild
LLP.
Joseph J. Porada Jr. filed for chapter 11 bankruptcy protection
(Bankr. N.D. Ill. Case No. 16-36268) on Dec. 6, 2017.
JOSEPH PORADA: Shaw Fishman Awarded $72K as Final Compensation
--------------------------------------------------------------
Bankruptcy Judge Timothy A. Barnes issues his findings of facts and
conclusions of law in support of the order awarding to Shaw Fishman
Glantz & Towbin, LLC, attorneys for Debtor Joseph J. Porada, Jr.,
for allowance and payment of final compensation and reimbursement
of expenses.
The firm's total requested fees is $73,487 and its total requested
costs is $1,479.
The Court denied the allowance of compensation for several tasks
because the amount of fees appears to be a computational or
typographical error. Also, where there are two identical entries
(same day, same tasks, same time billed), the court will consider
one of the entries to be a typographical error. Total disallowed
amount is $1,615.
The Court also imposed a 10% penalty on entries that appear to be
"lumping." Total disallowed amount is $123.60.
The Court also denied the allowance of compensation for several
tasks as the description of each task fails to identify in a
reasonable manner the service rendered. Total disallowed amount is
$427.50.
The court denied requests for fees relating to services that do not
benefit the estate or that are not necessary to the administration
of the case. Expenses for a counsel's routine in town travel
expenses confer no benefit to the estate and are not reimburseable
in this district absent an explanation regarding necessity. Total
disallowed amount is $15.
In sum, the total fees and costs allowed is $72,784.90.
The bankruptcy case is in re: JOSEPH J PORADA JR., Chapter 11,
Debtor, Case No. 17bk36268 (Bankr. N.D. Ill.).
A copy of the Court's Findings dated Nov. 27, 2018 is available at
https://is.gd/gPPOBv from Leagle.com.
Joseph J Porada, Jr., Debtor 1, represented by Terence G. Banich --
tbanich@foxrothschild.com -- Fox Rothschild LLP & Christina
Sanfelippo -- csanfelippo@foxrothschild.com -- Fox Rothschild
LLP.
Joseph J. Porada Jr. filed for chapter 11 bankruptcy protection
(Bankr. N.D. Ill. Case No. 16-36268) on Dec. 6, 2017.
JWCCC LLC: Plan and Disclosures Hearing Scheduled for Jan. 16
-------------------------------------------------------------
Bankruptcy Judge Edward L. Morris conditionally approved JWCCC,
LLC, d/b/a Marwill Grain Company's disclosure statement in
connection with its chapter 11 plan dated Dec. 5, 2018.
Jan. 16, 2019 at 10:30 a.m. is fixed for hearing on final approval
of the Debtor's Disclosure statement and for hearing on
confirmation of the Debtor's Plan, with the hearing taking place
before the Honorable Edward L. Morris, United States Bankruptcy
Judge, in Courtroom 204, U.S. Courthouse, 501 W. 10th Street, Fort
Worth, Texas.
Any objection to Debtor's Disclosure Statement and to confirmation
of the Plan must be filed on or before Jan. 9, 2018.
Written acceptances or rejections of Debtor's Plan must be received
by 5:00 p.m. (CST) on Jan. 9, 2019.
The Plan proposes for holders of general unsecured claims to recoup
10% of their total allowed claim amount over five years.
Class 1: Ally Financial's secured claim for 2009 Chevrolet 2500 is
impaired. The claim amount is $8,619.96. According to the Debtor's
records through end of November 2018, the sum of $877.50 has been
paid as adequate protection payment to Claimant. The Allowed
Secured Claim of $7,742.46 will accrue interest at 6.00%. The
Allowed Secured Claim of $7,742.46 will be paid in 60 equal monthly
payments of $149.68 starting on the Effective Date of the Plan.
Class 2: Ally Financial's secured claim for 2015 Chevrolet
Silverado is impaired. The claim amount is $26,814.92. According
to the Debtor's records through end of November 2018, the sum of
$2,295 has been paid as adequate protection payment to Claimant.
The Allowed Secured Claim of $24,519.92 will accrue interest at
6.00%. The Allowed Secured Claim of $24,519.92 will be paid in 60
equal monthly payments of $474.04 starting on the Effective Date of
the Plan.
Class 3: Tarrant County's secured claim for tangible commercial
personal property 2017 & 2018 is impaired. The claim amount is
$6,162.77. This Allowed Secured Claim will accrue interest at 12%.
This Allowed Secured Claim will be paid over a period of 60 months
in equal monthly payments of $137.09.
Class 4: City of Grapevine's secured claim for tangible commercial
personal property 2017 & 2018 is impaired. The claim amount is
$3,054.09. This Allowed Secured Claim will accrue interest at 12%.
This Allowed Secured Claim will be paid over a period of 60 months
in equal monthly payments of $67.94.
Class 5: Grapevine-Colleyville ISD's secured claim for tangible
commercial personal property 2017 & 2018 is impaired. The claim
amount is $14,746.22. This Allowed Secured Claim will accrue
interest at 12%. This Allowed Secured Claim will be paid over a
period of 60 months in equal monthly payments of $328.02.
Class 7: Sheffield Financial's secured claim for 2016 Big Tex Dump
Trailer is impaired. The claim amount is $3,558.44. Adequate
protection payments made during the pendency of this case get
deducted from the Allowed Secured Claim amount. According to the
Debtor's records through end of November 2018, the sum of $270 has
been paid as adequate protection payment to Claimant. The Allowed
Secured Claim of $3,288.49 will accrue interest at 6.00%. The
Allowed Secured Claim of $3,288.49 will be paid in 60 equal monthly
payments of $63.58 starting on the Effective Date of the Plan.
Class 8: Navitas Credit Corp.'s secured claim for Lighting Fixtures
is impaired. The claim amount is $32,314.32. This Claim is
bifurcated into an Allowed Secured Claim in the amount of
$13,500.00 and an Allowed Unsecured Claim in the amount of
$18,814.32. According to Debtor's records through end of November
2018, the sum of $450.00 has been paid as adequate protection
payment to Claimant. The Allowed Secured Claim of $13,050.00 will
accrue interest at 6.00%. The Allowed Secured Claim of $13,050.00
will be paid in 60 equal monthly payments of $252.29 starting on
the Effective Date of the Plan.
Class 9: Americredit Financial Services, Inc., dba GM Financia's
secured claim for 2016 Chevrolet Silverado 2500H is impaired. The
claim amount is $26,281.32. This Claim is bifurcated into an
Allowed Secured Claim in the amount of $21,575.00 and an Allowed
Unsecured Claim in the amount of $4,706.32. According to Debtor's
records through end of November 2018, the sum of $1,941.78 has been
paid as adequate protection payment to Claimant. The Allowed
Secured Claim of $19,633.22 will accrue interest at 6.00% The
Allowed Secured Claim of $19,633.22 will be paid in 60 equal
monthly payments of $379.57 starting on the Effective Date of the
Plan.
Class 10: Marlin Equipment Finance's secured claim for VOIP Phone
System is impaired. The claim amount is $14,726.44. This Claim is
bifurcated into an Allowed Secured Claim in the amount of
$10,000.00 and an Allowed Unsecured Claim in the amount of
$4,726.22. According to Debtor's records through end of November
2018, the sum of $1,509.19 has been paid as adequate protection
payment to Claimant. The Allowed Secured Claim of $8,490.81 will
accrue interest at 6.00%. The Allowed Secured Claim of $8,490.81
will be paid in 60 equal monthly payments of $164.15 starting on
the Effective Date of the Plan.
Class 11: Marlin Equipment Finance's secured claim for Server is
impaired. The claim amount is $1,699.55. This Claim is bifurcated
into an Allowed Secured Claim in the amount of $700.00 and an
Allowed Unsecured Claim in the amount of $999.55. According to the
Debtor's records through end of November 2018, the sum of $26.31
has been paid as adequate protection payment to Claimant. The
Allowed Secured Claim of $673.63 will accrue interest at 6.00%.
The Allowed Secured Claim of $673.69 will be paid in 60 equal
monthly payments of $13.02 starting on the Effective Date of the
Plan.
Class 12: Marlin Equipment Finance's secured claim for computers,
printers and other equipment is impaired. The claim amount is
$6,551.78. This Claim is bifurcated into an Allowed Secured Claim
in the amount of $3,400.00 and an Allowed Unsecured Claim in the
amount of $3,151.78. According to the Debtor's records through end
of November 2018, the sum of $53.25 has been paid as adequate
protection payment to Claimant. The Allowed Secured Claim of
$3,098.53 will accrue interest at 6.00% . The Allowed Secured Claim
of $3,151.78 will be paid in 60 equal monthly payments of $60.93
starting on the Effective Date of the Plan.
Class 13: Marlin Equipment Finance's secured claim for Mini Skid
Steer is impaired. The claim amount is $35,791.71. This Claim is
bifurcated into an Allowed Secured Claim in the amount of
$28,800.00 and an Allowed Unsecured Claim in the amount of
$6,991.71. According to Debtor's records through end of November
2018, the sum of $2,249.57 has been paid as adequate protection
payment to Claimant. The Allowed Secured Claim of $26,550.43 will
accrue interest at 6.00% . The Allowed Secured Claim of $26,550.43
will be paid in 60 equal monthly payments of $513.29 starting on
the Effective Date of the Plan.
Class 14: Marlin Equipment Finance's secured claim for Ryan Jr. 18"
Sod Cutter is impaired. The claim amount is $3,433.82. This Claim
is bifurcated into an Allowed Secured Claim in the amount of
$2,000.00 and an Allowed Unsecured Claim in the amount of
$1,433.82. According to the Debtor's records through end of
November 2018, the sum of $181.12 has been paid as adequate
protection payment to Claimant. The Allowed Secured Claim of
$1,818.88 will accrue interest at 6.00%. The Allowed Secured Claim
of $1,818.88 will be paid in 60 equal monthly payments of $35.16
starting on the Effective Date of the Plan.
Class 15: Colonial Savings F.A. is impaired. The claim amount is
$433,847.98. This Claim is bifurcated into an Allowed Secured Claim
in the amount of $372,625.00 and an Allowed Unsecured Claim in the
amount of $61,222.98. According to Debtor's records through end of
November 2018, the sum of $30,000.00 has been paid as adequate
protection payment to Claimant. The Allowed Secured Claim of
$342,625.00 will accrue interest at 6.00%. The Allowed Secured
Claim of $342,625.00 will be paid in 84 equal monthly payments of
$5,005.26 starting on the Effective Date of the Plan.
Class 16: General Unsecured Claims are impaired. The total general
unsecured Claims under the Plan is estimated to be approximately
$1,116,000.00. However, this amount may be reduced based on certain
Claims not being Allowed Claims and/or not being entitled to
receive distribution under the Plan. The parties with allowed
general unsecured Claims will start receiving payments at the end
of the first quarter after the Effective Date of the Plan.
The Debtor believes based on the dollar figures included in the
Plan each allowed general unsecured Claim will be paid
approximately 10% of its Claim over a period of 5 years in equal
quarterly payments. Therefore, the Debtor expects to distribute
amongst Class 16 creditors, with allowed Claims, the approximate
sum of $111,600.00. Any holder of a general unsecured Claim, whose
Claim on the Debtor's Schedules were reflected as disputed,
contingent or unliquidated and who did not file a claim before the
Bar Date will not receive any distribution under the Plan.
Payments and distributions under the Plan will be funded by future
income. The sources of this income consist of income derived from
running the business.
A full-text copy of the Disclosure Statement dated Dec. 5, 2018, is
available at:
http://bankrupt.com/misc/txnb18-1841853elm-55.pdf
About JWCCC, LLC a/k/a Marwill Grain Company
JWCCC, LLC, a/k/a Marwill Grain Company --
http://www.marwillgrain.com/-- operates an organic garden center
and a pet supply store in North Texas. The Company has been
serving the needs of organic gardeners, urban farmers, modern
homesteaders, and pet lovers since 1946. Through its Landscape
Services Division, Marwill Grain offers design and installation
projects, drainage and irrigation services, hardscaping, and
organic maintenance services. Currently the division serves
Grapevine and its surrounding cities.
Marwill Grain Company filed a Chapter 11 petition (Bankr. N.D. Tex.
Case No. 18-41853) on May 8, 2018, estimating $100,000 to $500,000
in assets and $1 million to $10 million in liabilities. Behrooz P.
Vida, Esq., at The Vida Law Firm, PLLC, is the Debtor's counsel.
KERO TAXI: Seeks to Hire Alla Kachan as Legal Counsel
-----------------------------------------------------
Kero Taxi, Corp., seeks approval from the U.S. Bankruptcy Court for
the Eastern District of New York to hire the Law Offices of Alla
Kachan, P.C. as its legal counsel.
The firm will assist the Debtor in administering its Chapter 11
case; prosecute adversary proceedings to collect assets of its
bankruptcy estate; prepare a plan of reorganization; and provide
other legal services related to its Chapter 11 case.
The firm charges these hourly fees:
Attorneys $375
Clerk/Paraprofessional $175
The Debtor paid the firm an initial retainer of $13,000.
Alla Kachan, Esq., 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:
Alla Kachan, Esq.
Law Offices of Alla Kachan, P.C.
3099 Coney Island Avenue
Brooklyn, NY 11235
Tel: (718) 513-3145
Email: alla@kachanlaw.com
About Kero Taxi Corp.
Kero Taxi, Corp. sought protection under Chapter 11 of the
Bankruptcy Code (Bankr. E.D.N.Y. Case No. 18-46573) on Nov. 13,
2018. At the time of the filing, the Debtor estimated assets of
less than $500,000 and liabilities of less than $1 million. The
case has been assigned to Judge Carla E. Craig.
MISSION COAL: New Coal Buying Substantially All Assets for $145M
----------------------------------------------------------------
Mission Coal C., LLC, and its debtor-affiliates ask the U.S.
Bankruptcy Court for the Northern District of Alabama to authorize
their bidding procedures and their with New Coal Acquisition Co.,
LLC in connection with the sale of substantially all their assets
for $145 million, subject to overbid.
The Debtors commenced these chapter 11 cases to facilitate the
consensual sale of substantially all of their assets through a plan
of reorganization that will maximize value for the benefit of all
stakeholders. With that goal in mind, they propose to
expeditiously establish Court-approved bidding procedures for a
sale of substantially of their assets.
To that end, the Debtors' DIP financing facility provides for
various case milestones that pave a clear path forward for these
chapter 11 cases. In particular, the DIP milestones provide that:
(a) by Nov. 27, 2018, the Debtors file the Motion (which date has
been extended to Dec. 5, 2018); (b) by Dec. 17, 2018, the Debtors
file the Plan; (c) by Dec. 19, 2018, the Debtors obtain entry of
the Order approving the Motion; (d) by Jan. 21, 2019, bids for all
or certain of the Debtors' assets are due; (e) by Feb. 27, 2019,
the Debtors will hold an Auction; and (f) by April 12, 2019, the
Debtors will have effectuated the Sale.
The DIP Lenders have agreed to provide the Stalking Horse Bid to
set the floor price for certain of the Debtors' assets, in the form
of a credit bid by the DIP Lenders pursuant to the terms of the
Stalking Horse Purchase Agreement. The Debtors have determined, in
the exercise of their business judgment, that the best way to
maximize the value of their assets for all stakeholders is to
market-test the Stalking Horse Bid through an auction process and
to expeditiously sell the assets to the highest or otherwise best
bidder (or bidders).
To implement the marketing and sale process and thereby maximize
value for all stakeholders, the Debtors submit the Motion, asking
for the Court to (a) approve the Bidding Procedures for the sale of
substantially all of their assets, (b) set dates and deadlines in
connection therewith (including a bid deadline, the date of the
auction, and the hearing dates and objection deadlines relating to
the Sale), (c) approve the form and manner of notice of each of the
foregoing, (d) approve procedures for the assumption and assignment
of certain executory contracts and unexpired leases in connection
with the Sale and (e) grant related relief.
They also ask authority to enter into the Stalking Horse Purchase
Agreement with the Stalking Horse Bidder, which importantly, does
not provide for a break-up fee or expense reimbursement and will
serve as a competitive baseline bid for the auction for their
assets.
The pertinent terms of the Stalking Horse Purchase Agreement are:
a. Purchase Price Credit Bid: $145 million
b. Bid Protections: None
c. Acquired Assets: Generally, the Buyer is purchasing all
assets related to the operations of Maple Eagle (West Virginia) and
Oak Grove (Alabama) mining facilities. The Buyer is going to
acquire certain assets of Pinnacle and has the right between
signing and closing to determine what assets of Pinnacle and
Seminole Alabama that it will acquire.
d. Assumed Liabilities: The Buyer will assume certain
liabilities of the business, including liabilities for: reclamation
under transferred permits, reclamation at Pinnacle (unless another
buyer purchases and assumes that), assumed contracts and any cure
costs associated with them, outstanding trade payables in
accordance with the DIP Budget, transfer Taxes, and accrued and
unpaid real property taxes.
e. On the Closing Date, the Acquired Assets will be
transferred to the Buyer free and clear of all obligations,
Liabilities and Encumbrances.
The salient terms of the Bidding Procedures are:
a. Bid Deadline: Jan. 21, 2019, at 4:00 p.m. (CT)
b. Initial Bid: A monetary value equal or greater than the
aggregate Assumed Liabilities, Credit Bid and Release contemplated
by the Stalking Horse Bid, plus $1 million in cash or cash
equivalents
c. Deposit: 10% of the aggregate cash Purchase Price of the
Bid
d. Auction: The Auction, if necessary, will be held on Feb.
27, 2019, at 10:00 a.m. (CT) at the offices of counsel to the
Debtors, Kirkland & Ellis LLP, 601 Lexington Avenue, New York, New
York 10022.
e. Bid Increments: $1 million
f. Sale Hearing: March 20, 2019, at 10:00 a.m. (CT)
g. Closing: April 12, 2019
h. Sale Objection Deadline: March 6, 2019, at 4:00 p.m. (CT)
Within three business days after entry of the Order, the Debtors
will cause the Sale Notice upon all Sale Notice Parties. On Jan.
14, 2019, the Debtors will file with the Court and serve the Cure
Notice on Assigned Contracts Schedule.
Time is of the essence. The Debtors face important milestones and
deadlines under the DIP Facility that, absent extension, could lead
either to the Debtors having to cease operations or incur
significant expense to refinance the DIP Facility. At the same
time, they ask to minimize the time and expense in chapter 11, and
ensure sufficient liquidity to fund their chapter 11 process. The
Sale would resolve these chapter 11 cases, cut off the expense of
bankruptcy, and permit the Debtors to distribute the value
generated by the sale of assets to their stakeholders. The Debtors
hope and expect to continue discussions with creditors regarding
their sale and restructuring efforts and obtain substantial
consensus regarding the chapter 11 process quickly.
A copy of the Stalking Horse Agreement and the Bidding Procedures
attached to the Motion is available for free at:
http://bankrupt.com/misc/Mission_Coal_393_Sales.pdf
The Buyer is represented by:
Arik Preis, Esq.
Lisa Beckerman, Esq.
Allison Miller, Esq.
Jason Rubin, Esq.
AKIN GUMP STRAUSS HAUER & FELD LLP
One Bryant Park
New York, NY 10036
Facsimile: (212) 872-1002
E-mail: apreis@akingump.com
lbeckerman@akingump.com
amiller@akingump.com
jrubin@akingump.com
About Mission Coal Company
Mission Coal Company LLC and its subsidiaries are engaged in the
mining and production of metallurgical coal, also known as "met"
coal, which is a critical component of the steelmaking process.
The Company is headquartered in Kingsport, Tennessee and operate
subterranean, surface, and longwall mining complexes in West
Virginia and Alabama. The Company employs 1,075 individuals on a
full-time or part-time basis.
Mission Coal and 10 of its subsidiaries filed for bankruptcy
protection in the U.S. Bankruptcy Court for the Northern District
of Alabama (Birmingham) on Oct. 14, 2018, with Lead Case No.
18-04177. In the petition signed by CRO Kevin Nystrom, Mission
Coal estimated assets and liabilities of $100 million to $500
million.
Daniel D. Sparks, Esq. and Bill D. Bensinger, Esq. of Christian &
Small LLP, as well as James H.M. Sprayregen, P.C., Brad Weiland,
Esq., and Melissa N. Koss, Esq., of Kirkland & Ellis LLP and
Kirkland & Ellis International LLP, serve as counsel to the
Debtors. The Debtors also tapped Jefferies LLC as investment
banker, Zolfo Cooper LLC as financial advisor, and Omni Management
Group as notice and claims agent.
On Oct. 25, 2018, the Bankruptcy Administrator for the Northern
District of Alabama appointed the Official Committee of Unsecured
Creditors. The Committee retained Lowenstein Sandler LLP, as
counsel; Baker Donelson Bearman Caldwell & Berkowitz, PC, as local
counsel; and Berkeley Research Group, LLC, as financial advisor.
MISSOURI CITY FUNERAL: Jan. 29 Plan Confirmation Hearing
--------------------------------------------------------
The Disclosure Statement explaining Missouri City Funeral Directors
at Glenn Park, Inc.'s amended Chapter 11 Plan is conditionally
approved.
The Court will conduct an evidentiary hearing in Courtroom 400, 4th
Floor, United States Courthouse, 515 Rusk, Houston, Texas 77002 to
consider final approval of the Disclosure Statement and
confirmation of the Plan on January 29, 2019 at 3:00 p.m.
(prevailing Central Time).
January 18, 2019 at 12:00 noon (prevailing Central Time) is the
deadline for filing and serving written objections to confirmation
of the Plan.
General Unsecured Claims, classified in Class 5, are impaired. The
allowed unsecured claims will be paid 100% of their claims in 60
monthly payments. Their payments will be due and payable beginning
on the 15th day of the first month following 60 days after the
effective date of the plan.
The Debtor anticipates continuing to operate bas a full-service
funeral home and is pursing the possibility of adding a crematory
to its operations. The income generated from continued operations
should be sufficient to fund the plan, pay its creditors and remit
payments to the owners and contractors who are necessary to ensure
the proper operation of the funeral home.
A full-text copy of the Disclosure Statement dated December 5,
2018, is available at:
http://bankrupt.com/misc/txsb18-1736178-50.pdf
About Missouri City Funeral Directors
Missouri City Funeral Directors at Glenn Park, Inc., is a
corporation that operates as a funeral home. It is based in
Missouri City, Texas.
The Debtor sought protection under Chapter 11 of the Bankruptcy
Code (Bankr. S.D. Texas Case No. 17-36178) on Nov. 6, 2017.
Michael Brock, Sr., chief executive officer, signed the petition.
At the time of the filing, the Debtor disclosed that it had
estimated assets of less than $1 million and liabilities of less
than $500,000.
Judge David R. Jones presides over the case.
MOMENTIVE PERFORMANCE: Dismissal of BOKF Suit vs WSFS Upheld
------------------------------------------------------------
In the case captioned BOKF, NA, IN ITS CAPACITY AS TRUSTEE, et al.,
Plaintiff-Appellee, v. WILMINGTON SAVINGS FUND SOCIETY, FSB, in its
capacity as trustee, et al., Defendants-Appellants. WILMINGTON
TRUST, NATIONAL ASSOCIATION, in its capacity as trustee,
Plaintiff-Appellee, v. WILMINGTON SAVINGS FUND SOCIETY, FSB, in its
capacity as trustee, et al., Defendants-Appellants, No. 15-cv-2280
(NSR) (S.D.N.Y.), District Judge Nelson S. Roman affirms the
Bankruptcy Court's order granting Defendants' Motion to Dismiss and
Motion for Judgment on The Pleadings, entered on Oct. 15, 2014, and
the Bankruptcy Court's Subsequent Orders Denying Plaintiffs Motion
for Leave to File an Amended Complaint, entered on Jan. 29, 2015
and on May 14, 2015.
The issues on appeal fall into three general categories. The first
category pertains to the issue of whether the bankruptcy court
erred in finding, as a matter of law, that the Appellees did not
breach the Intercreditor Agreement (ICA) by voting in favor of
MPM's Reorganization Plan, which the Seniors opposed.
The second category pertains to the following three claims: (1)
whether the bankruptcy court erred in finding, as a matter of law,
that Appellees did not breach the ICA by receiving equity in
reorganized MPM stock in exchange for releasing their claims,
liens, and restrictions on the Common Collateral prior to the
Senior Lenders receiving payment in full cash; (2) whether the
bankruptcy court erred in finding, as a matter of law, that
Appellees did not breach the ICA by receiving and retaining the BCA
Fee prior to the Senior Lenders receiving payment in full cash for
their liened securities; and (3) whether the bankruptcy court erred
in finding, as a matter of law, that Appellees did not breach the
ICA by receiving payment of their professional fees from MPM's cash
collateral prior to the Senior Lenders receiving payment in full
cash full cash for their liened securities. The final issue is
whether the Bankruptcy Court erred in dismissing the Appellants'
claim for breach of the covenant of good faith and fair dealing.
Appellants argued that the Bankruptcy Court erred in dismissing the
Interference, Turnover, and Quasi-Contract claims on the pleadings.
Based on the context of the entire integrated agreement and the
industry to which it is germane, the Court finds it unambiguous
that the prohibition on hindering the Seniors' remedies was not
intended to mean that the Seconds were waiving all the voting
rights that they are otherwise entitled to under bankruptcy law.
This is particularly so when the ICA expressly granted them
unfettered rights as unsecured creditors.
As there were no express constraints or waivers in the ICA, the
Bankruptcy Court correctly concluded that Appellants did not plead
a plausible claim. Accordingly, the Bankruptcy Court's decision on
the interference claim is affirmed.
Regarding the turnover claim, the Court holds that although the
term "proceeds" can arguably yield to different meanings outside of
the bankruptcy context, here, it’s clear beyond a doubt that
proceeds was never intended to--and as a matter of economics
cannot--refer to the reorganized common stock that the Seconds
received in lieu of giving up their liens to the Common Collateral
and restructuring their swath of unsecured debt. The Seniors, who
never discharged their liens and claims on the Common Collateral,
are not entitled to turnover payments just because the Seconds'
did.22 Certainly, there are inconveniences to not receiving a
maximal payout when a debtor files petition. But that is a cost the
Seniors must bear. Accordingly, the lower court's decision on this
claim is affirmed.
Finally, because there was no ambiguity in the linguistic terms of
the ICA, nor an implicit duty that the ICA imposed outside the four
corners of the contract, the Bankruptcy Court properly dismissed
quasi-contract claim. Consequently, even if this had Court found
that the ICA was fully enforceable and the Seconds defeated its
"spirit"--which it has not--the Court would be constrained to
claims arising under its actual provisions. Accordingly, the
Bankruptcy Court's ruling on this claim, too, is affirmed.
A copy of the Court's Opinion and Order dated Nov. 30, 2018 is
available at https://bit.ly/2CerRqt from Leagle.com.
Wilmington Trust, National Association, Appellant, represented by
Gabriel Hertzberg -- ghertzberg@curtis.com -- Curtis,
Mallet-Prevost, Colt & Mosle, LLP, Steven J. Reisman –
sreisman@curtis.com -- Curtis, Mallet-Prevost, Colt & Mosle, LLP &
Theresa Ann Foudy – tfoudy@curtis.com -- Curtis, Mallet-Prevost,
Colt and Mosle LLP.
BOKF, NA, Appellant, represented by Eric Christopher Zabicki, Pick
& Zabicki LLP.
Wilmington Savings Fund Society, FSB, As Successor Second Lien
Indenture Trustee, Appellee, represented by Patrick Sibley --
psibley@pryorcashman.com -- Pryor Cashman LLP & Seth Howard
Lieberman -- slieberman@pryorcashman.com -- Pryor Cashman LLP.
Apollo Global Management, LLC & Euro VI (BC) S.A.R.L., Appellees,
represented by Brian Thomas Carney -- bcarney@akingump.com -- Akin
Gump Strauss Hauer & Feld LLP, Deborah Jill Newman –
dnewman@akingump.com -- Akin Gump Strauss Hauer & Feld LLP, Ira S.
Dizengoff , Akin Gump Strauss Hauer & Feld LLP & Philip Charles
Dublin , Akin Gump Strauss Hauer & Feld LLP.
WellPoint, Inc., Appellee, represented by Richard James Bernard,
Foley & Lardner, LLP.
About Momentive Performance
Momentive is a producer of silicones and silicone derivatives.
Momentive has a 70-year history, with its origins as the Advanced
Materials business of General Electric Company. In 2006,
investment funds affiliated with Apollo Global Management, LLC,
acquired the company from GE.
Momentive Performance Materials Inc., Momentive Performance
Materials Holdings Inc., and their affiliates sought Chapter 11
protection (Bankr. S.D.N.Y. Lead Case No. 14-22503) on April 14,
2014, with a deal with noteholders on a balance-sheet
restructuring.
As of Dec. 31, 2013, the Debtors had $4.11 billion of outstanding
indebtedness, including payments due within the next 12 months and
short-term borrowings. The Debtors said that the restructuring
will eliminate $3 billion in debt.
The Debtors tapped Willkie Farr & Gallagher LLP as bankruptcy
counsel with regard to the filing and prosecution of these chapter
11 cases; Sidley Austin LLP as special litigation counsel; Moelis &
Company LLC as financial advisor and investment banker;
AlixPartners, LLP as restructuring advisor; PricewaterhouseCoopers
as auditor; and Crowe Horwath LLP as benefit plan auditor.
Kurtzman Carson Consultants LLC served as notice and claims agent.
The Official Committee of Unsecured Creditors tapped Klee, Tuchin,
Bogdanoff & Stern LLP as its counsel; FTI Consulting, Inc., as its
financial advisor; and Rust Consulting Omni Bankruptcy serves as
its information agent.
Wilmington Trust, National Association, the Trustee for the
Momentive Performance Materials Inc. 10% Senior Secured Notes due
2020 -- 1.5 Lien Notes -- under the Indenture, dated as of May 25,
2012, by and between Momentive Performance, and The Bank of New
York Mellon Trust Company, National Association, was represented by
Mark R. Somerstein, Esq., Mark I. Bane, Esq., and Stephen
Moeller-Sally, Esq., at Ropes & Gray LLP.
U.S. Bank National Association -- as successor Indenture Trustee
under the indenture dated as of Dec. 4, 2006, among Momentive
Performance, the Guarantors named in the Indenture, and Wells Fargo
Bank, N.A. as initial trustee, governing the 11.5% Senior
Subordinated Notes due 2016 -- was represented in the case by
Susheel Kirpalani, Esq., Benjamin I. Finestone, Esq., David L.
Elsberg, Esq., Robert Loigman, Esq., K. John Shaffer, Esq., and
Matthew R. Scheck, Esq., at Quinn Emanuel Urquhart & Sullivan, LLP;
and Clark Whitmore, Esq., and Ana Chilingarishvili, Esq., at Maslon
Edelman Borman & Brand, LLP.
BOKF, NA -- as successor First Lien Trustee to The Bank of New York
Mellon Trust Company, N.A., as trustee under an indenture dated as
of Oct. 25, 2012, for the 8.875% First-Priority Senior Secured
Notes due 2020 issued by Momentive Performance and guaranteed by
certain of the debtors -- was represented by Michael J. Sage, Esq.,
Brian E. Greer, Esq., and Mauricio A. Espana, Esq., at Dechert
LLP.
Counsel to Apollo Global Management, LLC and certain of its
affiliated funds were Ira S. Dizengoff, Esq., Philip C. Dublin,
Esq., Abid Qureshi, Esq., Deborah J. Newman, Esq., and Ashleigh L.
Blaylock, Esq., at Akin Gump Strauss Hauer & Feld LLP.
Attorneys for Ad Hoc Committee of Second Lien Noteholders were
Dennis F. Dunne, Esq., Michael Hirschfeld, Esq., and Samuel A.
Khalil, Esq., at Milbank, Tweed, Hadley & McCloy LLP.
The Court entered an order confirming the Plan on Sept. 11, 2014.
The Debtors' Chapter 11 plan of reorganization became effective as
of Oct. 24, 2014.
MPM Holdings Inc. trades under the symbol OTCQX: MPMQ.
* * *
Momentive continues to carry Moody's Investors Service's "Caa1" and
S&P's "B" corporate ratings. In late January 2016, Moody's
downgraded Momentive Performance's corporate family rating (CFR) to
Caa1 from B3.
NINE WEST: L.K Bennett Bid to Dismiss Plaza Madison Suit Junked
---------------------------------------------------------------
Judge Arthur F. Engoron denied the Defendant's motion to dismiss
the case captioned PLAZA MADISON LLC Plaintiff, v. L.K. BENNETT
U.S.A., INC., Defendant, Docket No. 652226/2018, Motion Seq. No.
001 (N.Y. Sup.).
In this action, plaintiff, Plaza Madison LLC, present owner of 655
Madison Avenue, New York, New York, sues to recover damages for the
alleged anticipatory repudiation of the contractual obligation of
defendant, L.K. Bennett U.S.A., Inc., to attorn to Plaintiff
pursuant to an attornment provision in a master lease agreement
that was incorporated into the sublease agreement to which
Defendant is a party.
The complaint, filed on May 8, 2018, asserted two causes of action:
a declaratory judgment pursuant to CPLR 3001 (first cause of
action), and anticipatory repudiation/anticipatory breach of
contract (second cause of action), and seeks a judgment against
Defendant on the second cause of action in an amount to be
determined at trial, but not less than $1,036,083.31, together with
pre-judgment interest therefrom from April 6, 2018 and attorneys'
fees.
Defendant now moved to dismiss the complaint on the ground that the
complaint fails to state a cause of action and on the ground that
documentary evidence proves that the breach of contract action
cannot be maintained by Plaintiff as the parties are not in privity
of contract. Defendant argues that pursuant to Bankruptcy Code
section 365(h)(1)(i), the Sublease was terminated upon the
rejection of the Master Lease. Defendant further argues that the
complaint must be dismissed because the Consent Agreement makes
clear that no privity of contract exists between the parties.
The Court finds that the complaint sufficiently pleads causes of
action for a declaratory judgment and anticipatory repudiation. In
the matter of the first cause of action for declaratory judgment, a
justiciable controversy exists between the parties as to whether
Section 53(r)(1) of the Master Lease is applicable. CPLR 3001. The
allegations in the complaint, Defendant's motion papers, and the
correspondence between the parties attached as exhibits, illustrate
that a genuine dispute exists between the parties as to Defendant's
obligation to attorn to Plaintiff under Article 53(r)(1) of the
Master Lease.
As to Plaintiff's second cause of action for anticipatory
repudiation, the complaint sufficiently pleads this cause of
action. To sustain a cause of action sounding in anticipatory
repudiation, "there must be [among other things] some express and
absolute refusal to perform, or some voluntary act on the part of
the individual which renders it impossible for him [or her] to
perform." "A party to a contract becomes liable for anticipatory
breach when repudiating the agreement by disavowing the contractual
obligations before performance is due." On April 20, 2018,
Plaintiff served Defendant with a notice of attornment, notifying
Defendant that Plaintiff exercised its option to require attornment
pursuant to Section 53(r)(1) of the Master Lease, and that upon
termination of the Master Lease, Defendant was required to attorn
to Plaintiff as its landlord. On April 27, 2018, Defendant denied
any obligation to attorn to Plaintiff as landlord. Therefore,
Defendant disavowed its obligation to attorn to Plaintiff as
landlord before its performance came due under Article 53(r)(1) of
the Master Lease. The documentary evidence submitted by the parties
only supports this finding.
A copy of the Court's Decision and Order dated Nov. 26, 2018 is
available at https://bit.ly/2PEzSIG from Leagle.com.
About Nine West
Nine West Holdings Inc. is a footwear, accessories, women's
apparel, and jeanswear company with a portfolio of brands that
includes Nine West, Anne Klein, and Gloria Vanderbilt. The company
is a wholesale partner to major U.S. retailers and has
international licensing arrangements covering more than 1,200
points of sale around the world.
In April 2014, Sycamore Partners Management, L.P., acquired The
Jones Group Inc. for $2.2 billion via leveraged buyout. As part of
the transaction, The Jones Group merged with several affiliates,
and the newly merged company was renamed as Nine West Holdings.
On April 6, 2018, Nine West Holdings, Inc., and 10 affiliates
sought Chapter 11 protection (Bankr. S.D.N.Y. Lead Case No.
18-10947) to right size their balance sheet, sell the Nine West
Group's assets, and execute on their turnaround strategy to
concentrate exclusively on their One Jeanswear Group, Kasper Group,
The Jewelry Group, and Anne Klein businesses.
In addition to the chapter 11 cases, Jones Canada, Inc., and Nine
West Canada LP commenced foreign insolvency proceeding under the
Bankruptcy and Insolvency Act in Canada.
The Hon. Shelley C. Chapman is the U.S. case judge.
The Debtors tapped Kirkland & Ellis LLP as counsel; Lazard Freres &
Co. as investment banker; Alvarez & Marsal North America LLC as
interim management and financial advisory services provider;
Consensus Advisory Services LLC and Consensus Securities LLC as
investment banker in connection with the sale of intellectual
property associated with the Nine West and Bandolino brands;
Deloitte Tax LLP as tax services provider; and BDO USA, LLP, as
auditor and accountant.
Munger, Tolles & Olson LLP is serving as the company's independent
counsel, rendering services at the direction of independent
directors Alan Miller and Harvey Tepner. Berkeley Research Group
is serving as independent financial advisor, rendering professional
services at the direction of the Independent Directors.
Prime Clerk LLC is the claims and noticing agent.
The Ad Hoc Group of Secured Term Loan Lenders tapped Davis Polk &
Wardwell LLP as counsel; and Ducera Partners LLC as financial
advisor.
The Ad Hoc Crossover Group of Secured and Unsecured Term Loan
Lenders tapped King & Spalding LLP as counsel and Guggenheim
Securities, LLC, as financial advisor.
Brigade Capital Management, LP, a party to the RSA tapped Kramer
Levin Naftalis & Frankel LLP as counsel.
The Official Committee of Unsecured Creditors tapped Akin Gump
Strauss Hauer & Feld LLP as counsel; Houlihan Lokey Capital, Inc.,
as investment banker; and Protiviti Inc. as financial advisor and
forensic accountant.
Sycamore Partners Management, L.P., owner of 90.2% of the equity
interests in the debtors, tapped Proskauer Rose LLP as counsel.
Authentic Brands, which bought Nine West's IP assets, tapped DLA
Piper Global Law Firm as counsel.
* * *
The Debtors filed a Chapter 11 plan that's based on a restructuring
support agreement signed with certain members of the Secured Lender
Group, certain members of the Crossover Group, and Brigade, who
collectively hold over 78 percent of the company's secured term
loan and over 89 percent of the unsecured term loan.
In an auction on June 8, 2018 for the company's Nine West,
Bandolino and associated brands, brand developer and marketing
company Authentic Brands Group outbid shoe retailer DSW Inc. The
winning bid of Authentic Brands' ABG-Nine West LLC was $340 million
in cash and other consideration, which is $140 million more than
ABG's stalking horse bid.
The official committee of unsecured creditors has filed a motion
seeking to conduct an examination of and seek discovery from the
Debtors and third parties pursuant to Rule 2004 of the Federal
Rules of Bankruptcy Procedure. The Committee says its initial
investigation indicates there are a number of potential estate
claims arising from the 2014 LBO.
ONE WAY LOANS: Case Summary & 20 Unsecured Creditors
----------------------------------------------------
Debtor: One Way Loans, LLC
dba PowerLend
10325 Jefferson Boulevard
Culver City, CA 90232
Business Description: Company that provides fast, affordable
loans.
Chapter 11 Petition Date: December 17, 2018
Court: United States Bankruptcy Court
Central District of California
Case No.: 18-24572
Judge: Hon. Sandra R. Klein
Debtor's Counsel: David S. Kupetz, Esq.
SulmeyerKupetz, A Professional Corporation
333 South Grand Avenue, Suite 3400
Los Angeles, CA 90071-1406
Phone: 213-626-2311
213-617-5274
E-mail: dkupetz@sulmeyerlaw.com
Total Assets: $1 million to $10 million
Total Liabilities: $1 million to $10 million
The petition was signed by David Redlener, chief executive
officer.
A full-text copy of the petition containing, among other items, a
list of the Debtor's 20 unsecured creditors is available for free
at Pacer Monitor at:
https://www.pacermonitor.com/filings/100211956
OSUM PRODUCTION: S&P Alters Outlook to Negative & Affirms CCC+ ICR
------------------------------------------------------------------
S&P Global Ratings revised its outlook on Osum Production Corp.
(OPC) to negative from stable.
S&P believes OPC's liquidity could deteriorate in the next six
months if it cannot refinance its upcoming senior debt before July
2019, resulting in increased refinancing and liquidity risks.
At the same time, S&P Global Ratings affirmed its 'CCC+' issuer
credit rating on OPC and parent Osum Oil Sands Corp. (OOSC) and its
'B' issue-level rating on OPC's senior secured debt. The '1'
recovery rating on the debt is unchanged.
S&P said, "The outlook revision reflects our view that there are
increased refinancing and liquidity risks given the company's
upcoming US$200 million senior secured debt maturing July 2020. We
believe OPC's liquidity would materially deteriorate in the next
six months if the company could not refinance or repay its debt
before July 2019, and we do not have any visibility on its
refinancing process. OPC is currently under negotiations to extend
its undrawn US$15 million revolving credit facility and if the
company is not able to do that it could signal to us a potential
difficulty to access the debt market in the next few months.
"The negative outlook reflects our view that OPC's capital
structure is vulnerable to refinancing risk, particularly with
respect to the company's senior unsecured notes. Based on the
negligible forecast FOCF, we believe the company's liquidity
position would materially deteriorate if it cannot refinance its
notes before July 2019.
"We could lower the ratings to 'CCC' if OPC cannot refinance or
repay its senior unsecured notes before July 2019.
"We could take a positive rating action if liquidity improves
during the next six months, which could occur if the company
refinances or repays the notes under terms we would not consider
distressed."
-- S&P Global Ratings' oil and gas price assumptions published
Sept. 18, 2018, of WTI of US$65 per barrel for the rest of 2018 and
US$60 per barrel in 2019
-- Price differentials between WCS-WTI of 65% in fourth-quarter
2018, resulting in average discount of 42.5% for the full year and
45.0% in 2019
-- A Canada-U.S. exchange rate of C$1.29 for the rest of 2018 and
C$1.28 in 2019
-- Hedging position as of Sept. 30, 2018
-- Average daily production of 9,800-10,000 barrels of oil
equivalent (boe) per day in 2018 and average daily production
reaching about 18,000 boe per day by the end of third-quarter 2019
-- Cash costs in line with those in the first nine months of 2018
-- Capital expenditures of about C$165 million in 2018, mostly for
the Orion 2BC project
S&P assesses OPC's liquidity as less than adequate based on our
view that the company has not yet refinanced its senior secured
notes, anticipating potential setbacks to ensure its liquidity.
Principal liquidity sources:
-- Cash and cash equivalents of C$89 million as of Sept. 30, 2018
-- S&P Global Ratings-forecast FFO generation of about C$16
million in the next 12 months
Principal liquidity uses:
-- S&P Global Ratings-forecast capital expenditures of about C$15
million in the next 12 months
-- Negligible debt amortization in the next 12 months
OPC's covenants are based on reported reserves PV-10 valuations. On
Sept. 30, 2018, the company reported PV-10 reserves over net
secured debt of 11.3x (above its threshold of 4x) and 1P PV-10
reserves over secured debt of 5.5x (above its threshold of 1.25x).
S&P expects the company to continue complying with these covenants
during the next 12 months.
-- The '1' recovery rating on OPC's senior secured term loan is
unchanged.
-- S&P values the company on a going-concern basis, using a
reserve multiple approach that applies a range of distressed fixed
prices to bitumen reserves (proved, probable, and contingent).
-- Under S&P's default scenario, it applies a price of US$4.00 per
barrel of OPC's proven bitumen reserves, US$2.00 per barrel of
probable bitumen reserves, and 75 U.S. cents per barrel of best
estimate contingent resources.
-- The values S&P ascribe to all categories of oil sands reserves
and resources are deeply discounted to historically observed market
prices, because they represent S&P's valuation estimates at a
simulated trough in the hydrocarbon price cycle.
-- S&P's recovery analysis assumes that, in a hypothetical
bankruptcy scenario, OPC's net emergence value fully covers senior
secured noteholders.
-- Simulated year of default: 2020
-- Reserve multiple valuation approach
-- Net enterprise value (after 5% administrative costs): US$1.1
billion
-- Valuation split in % (obligors/non-obligors): 100/0
-- Super priority secured first-lien debt: US$15 million
--Recovery expectations: Not applicable
-- Secured first-lien debt: US$200 million
--Recovery expectations: 90%-100% (rounded estimate 95%)
All debt amounts include six months of prepetition interest.
PATTY DEWITT: Seeks Valley Mart Sale Closing Extension to March 8
-----------------------------------------------------------------
Patty JoAnne DeWitt asks the U.S. Bankruptcy Court for the Northern
District of West Virginia to (i) extend time to and unto March 8,
2019 to close the sale of Valley Mart as permitted by the Court's
prior Order, upon motion shortened notice and hearing due to
unforeseen delay; and (i) confirm the sale as in accordance with
the prior Order.
All other assets of the Court's prior Order will occur by Dec. 6,
2018. The sale of all other assets contemplated by the Court will
occur within the time provided for in the Court's prior Order.
Because (i) the EPA environmental report is not yet complete, (ii)
the insurance information has not been timely provided by the
insurer, (iii) the escrow amounts for gas tanks treatment and
replacement of personalty taken from Valley Mart being not yet
agreed or provided, and (iv) all being necessary for the closing as
a precondition of closing, the parties ask an extension of time as
aforesaid and further to be plead in a new Addendum to the
contract.
The Debtor asks that: (a) the closing deadline be extended to and
until March 8, 2019 for closing with Mr. Hadox upon her real
estate, consisting of .770 Ac West Run (Valley Mart),and any
related property, and (b) the closing of all remaining property set
forth in the Court's prior order (apartment buildings) be confirmed
as being in accordance with the Court's prior Order .
Patty JoAnne DeWitt sought Chapter 11 protection (Bankr. N.D. W.Va.
Case No. 17-00120) on Feb. 2, 2017. The Debtor tapped J. Frederick
Wiley, PLLC, and Johnson Law, PLLC, as counsel. Howard Hanna
Premier Properties by Barbara Alexander, LLC, by Kay Alexander and
Rob Young were approved by the Court as the Realtor for the Debtor.
PETROCHOICE HOLDINGS: S&P Lowers ICR to B-, Outlook Stable
----------------------------------------------------------
PetroChoice's liquidity position at Sept. 30, 2018, was weaker than
expected as a result of the company's decision to build its oil
inventory levels to offset the impact of expected price increases.
S&P Global Rating now forecasts modest FOCF generation over the
next 12 months and that the company's liquidity position will
remain tight at under $25 million.
S&P said, "We lowered our issuer credit rating to 'B-' and our
issue-level ratings on the company's debt by one notch in
conjunction with the downgrade. We also revised the outlook to
stable from negative. The recovery ratings remain unchanged.
"The downgrade and stable outlook reflect our view that weak free
operating cash flow (FOCF) generation could increase liquidity
pressure over the next 12 months. However, we expect steady
operating performance, lower working capital needs as the company
reduces its inventory stockpiles, and better cost controls that
will improve the company's liquidity position to about $20
million-$25 million through 2019. The company's tight liquidity
stems from its ongoing debt-financed acquisitions and significant
working capital outflows resulting from large oil inventory builds
it incurred to offset higher prices. For the 12 months ending Sept.
30, 2018, the company reported an FOCF deficit of $500,000, and
about $4.3 million of available liquidity. Pro forma for the $10
million first-lien term loan add, the company's liquidity sources
improved to $14 million.
"The stable outlook reflects our view that the company will curtail
its recent cash flow deficits and begin to reduce its high working
capital needs as it unwinds its high oil inventory levels. We
expect steady operating performance will result in about $20
million-$25 million of available liquidity through 2019.
"We believe that liquidity-related risk is more likely to lead to a
downgrade given the company's earliest debt maturity is 2020.
Accordingly, we could lower our rating if the company's cash flow
generation deteriorates as a result of weak operating performance
or high customer attrition rates, continued cost elevation, a spike
in oil prices with limited ability to pass along price increases,
or greater competition in its end markets. In this scenario we
would forecast the company's liquidity sources falling below $10
million. We could also lower our rating if the risk of a distressed
debt exchange or bankruptcy filing over the next 12-24 months
increases.
"We could raise our ratings if profit margins and operating
performance improves, and the company's liquidity profile, debt
leverage, and payback credit measures strengthen. In this scenario,
we would be increasingly confident that a combination of good cash
flow generation after debt service, cash, and other liquidity
sources would provide the company with more than $25 million, as
well as if the company successfully refinances its revolving credit
facility, which matures in August 2020, and we forecast FOCF to
debt in the mid- to high-single-digit area."
POINT.360: Court Approves Second Amended Disclosure Statement
-------------------------------------------------------------
Point.360, a provider of integrated media management services, on
Dec. 17, 2018, disclosed that the United States Bankruptcy Court
approved the Company's second amended disclosure statement and
scheduling plan confirmation status hearing and related deadlines.
Haig S. Bagerdjian, the Company's Chairman, President and Chief
Executive Officer said: "Our creditors, security holders and the
United States Trustee will soon receive a voting ballot related to
the plan confirmation. We are looking forward to the support of
our constituencies to achieve an exit from the Chapter 11
proceeding as soon as possible."
About Point.360
Point.360 (PTSX) -- http://www.point360.com/and
http://www.mvf.com/-- is an integrated media management services
company providing film, video and audio post-production, archival,
duplication and data distribution services to motion picture
studios, television networks, independent production companies and
multinational companies. The Company provides the services
necessary to edit, master, reformat and archive its clients' audio,
video, and film content, which include television programming,
feature films, and movie trailers. On July 8, 2015, Point.360
acquired the assets of Modern VideoFilm to expand the Company's
service offering. The Company also rents and sells DVDs and video
games directly to consumers through its Movie-Q retail stores. The
Company is headquartered in Los Angeles, California.
Point.360 filed a voluntary petition for reorganization under
Chapter 11 of the U.S. Bankruptcy Code (Bankr. C.D. Cal. Case No.
17-22432) on Oct. 10, 2017.
In the petition signed by Haig S. Bagerdjian, the Company's
Chairman, President and CEO, the Debtor disclosed total assets of
$11.14 million and total debt of $14.77 million as of March 31,
2017.
The Hon. Julia W. Brand is the case judge.
The Debtor hired Lewis R. Landaue, Esq., as bankruptcy counsel, and
TroyGould PC, as transactional counsel.
No trustee has been appointed, and the Company will continue to
operate its business as "debtor in possession" under the
jurisdiction of the Court and in accordance with the applicable
provisions of the Bankruptcy Code and orders of the Court.
PROMISE HEALTHCARE: PCO Seeks to Hire Otterbourg as Legal Counsel
-----------------------------------------------------------------
Melanie Cyganowski, the patient care ombudsman appointed in the
Chapter 11 cases of Promise Healthcare Group, LLC and its
affiliates, seeks approval from the U.S. Bankruptcy Court for the
District of Delaware to hire her own firm as her legal counsel.
The PCO proposes to employ Otterbourg P.C. to represent her in any
proceeding or hearing before the bankruptcy court and in other
courts where the rights of the patients may be litigated or
affected as a result of the Debtors' bankruptcy cases.
The firm charges these hourly fees:
Partner/Counsel $450 - $1,250
Associate $295 - $775
Paralegal $295
Keith Costa, Esq., at Otterbourg, 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:
Keith N. Costa, Esq.
Jennifer S. Feeney, Esq.
Otterbourg P.C.
230 Park Avenue
New York, NY 10169
Telephone: (212) 661-9100
Facsimile: (212) 682-6104
Email: info@otterbourg.com
About Promise Healthcare Group
Established in 2003, Promise Healthcare is a specialty post-acute
care health company headquartered in Boca Raton, Florida.
Promise Healthcare Group, LLC, and its affiliates sought bankruptcy
protection (Bankr. D. Del. Lead Case No. Case No. 18-12491) on Nov.
4, 2018. In the petition signed by CRO Andrew Hinkelman, the
Debtors estimated assets of $0 to $50,000 and liabilities of $50
million to $100 million.
The Debtors tapped DLA Piper LLP and Waller Lansden Dortch & Davis,
LLP as general counsel; McDermott Will & Emery LLP as special
counsel; FTI Consulting, as financial and restructuring advisor;
Houlihan Lokey and MTS Health Partners, L.P., as investment
bankers; and Prime Clerk LLC as claims agent.
The Office of the U.S. Trustee appointed an official committee of
unsecured creditors on Nov. 14, 2018. The Committee tapped
Pachulski Stang Ziehl & Jones LLP and Sills Cummis & Gross P.C. as
its counsel.
On Nov. 27, 2018, the U.S. Trustee appointed Melanie L. Cyganowski
of Otterbourg P.C. as patient care ombudsman.
PYRGOS TAXI: Giovanis Buying 4 NYC Taxi Medallions for $700K
------------------------------------------------------------
Pyrgos Taxi Corp. and Tripolis Taxi Corp. ask the U.S. Bankruptcy
Court for the Eastern District of New York to authorize the sale to
John Giovanis of Pyrgos' two NYC taxi medallions, identified as
9N35 and 9N36, for $350,000; and Tripolis' two NYC taxi medallions,
identified as 4J40 and 4J41, for $350,000.
At the time of the Debtors' filing of the instant bankruptcy cases,
the Principals of the individual Debtors were operating two taxi
medallions each. Due to age and the onset of health issues, the
Debtors' Principals are no longer able to maintain the daily
operations of operating and maintaining the medallions and as such,
have surrendered the four Medallions for storage to the NYC Taxi
and Limousine Commission, and have ceased operating the businesses.
As the Debtors have terminated their operations, the sale of the
Medallions will not affect their businesses under Reorganization
Plan.
Prior to the filing date, the Borrowers/Debtors as
Cosigners/Comakers and Guarantors, entered into a certain secured
loan agreement with Bay Ridge Federal Credit Union, Bay Ridge,
loaned the principal amount of $820,000 to Pyrgos and $790,000 to
Tripolis. As of the filing date, the individual Borrowers/Debtors
are indebted to Lender in the aggregate principal amount of not
less than $790,000 and $820,000, respectively, plus accrued and
unpaid interest, costs expenses including, without limitation,
attorneys' fees and disbursements. As of the date of April 1,
2018 for Pyrgos and May 9, 2018 for Tripolis, Bay Ridge contends
that the payoff amount due under the Note is $771.825 and $744,027,
respectively.
During and throughout the bankruptcy case, the Debtors had been
diligently working to reach a stipulated agreement with Bay Ridge
Credit Union for treatment of their claim. They were contacted by
Omega Brokerage, Inc. about selling both their medallions. The
prospect of the sale prompted extensive communication and
negotiations with Bay Ridge Credit Union to work out a settlement
that would involve Bay Ridge to consent to the sale of the
medallions for $350,000 per corporation for a combined total of
$700,000, all liens, claims, interests, and encumbrances, and where
the each Debtor would make a joint lump sum payment of $75,000
towards the agreed upon global deficiency amount for corporations
for a total sum of $775,000 in full payment of the all of the
Creditor's claims.
The Debtors proffer that the proposed sale is in the best interest
of the estates, as they intend to utilize the proceeds of the sale
along with the agreed upon deficiency payment to resolve the claim
of the largest creditor of the estate, Bay Ridge Credit Union, in
full satisfaction.
The Debtor through Omega Brokerage as the broker in the case, has
provided sale terms in the Proposed Sale Agreement, that may be
amended to comport with the terms to be approved by this Court in
the context of the Debtor's filed 9019 Motion. A closing date will
take place on Dec. 19, 2018 at the New York City Taxi and Limousine
Commission Office, depending upon the final approval from the New
York City Taxi and Limousine Commission, or as soon as reasonably
practicably pending the approval of the Sale Agreement by the Court
and availability of the parties in scheduling the closing.
The Debtors believe that an immediate sale of the Property is in
the best interests of the estate.
A hearing on the Motion is set for Dec. 4, 2018 ay at 3:00 p.m.
A copy of the Agreement attached to the Motion is available for
free at:
http://bankrupt.com/misc/Pyrgos_Taxi_59_Sales.pdf
About Pyrgos Taxi Corp.
Pyrgos Taxi Corp. is a New York corporation that formed on or about
Sept. 1, 1976. The stock of which is owned 100% or 200 shares by
John Janetos "Borrower." The Borrower is the sole officer of the
individual Debtor. Pyrgos Tax is the licensed owner of the
business which is operated at a principle place of business located
at 39-32 21st Street, Bay Ridge, New York 11361.
Pyrgos Taxi Corp. sought Chapter 11 protection (Bankr. E.D.N.Y.
Case No. 1-18-41344) on March 9, 2018.
Counsel for the Debtor:
Alla Kachan, Esq.
LAW OFFICES OF ALLA KACHAN, P.C.
3099 Coney Island Avenue, 3rd Fl.
Brooklyn, NY 11235
Telephone: (718) 513-3145
R & C PROPERTIES: Voluntary Chapter 11 Case Summary
---------------------------------------------------
Debtor: R & C Properties of Wilmington, LLC
5006 Randall Parkway
Wilmington, NC 28403
Business Description: Owner of buildings and land at 5006 Randall
Parkway, and 4951 University Drive in
Wilmington, North Carolina.
Chapter 11 Petition Date: December 14, 2018
Court: United States Bankruptcy Court
Eastern District of North Carolina
Case No.: 18-05996
Debtor's Counsel: Richard P. Cook, Esq.
Richard P. Cook. PLLC
7036 Wrightsville Avenue, Suite 101
Wilmington, NC 28403
Phone: (910)399-3458
E-mail: CapeFearDebtRelief@gmail.com
Estimated Assets: $1 million to $10 million
Estimated Liabilities: $1 million to $10 million
The petition was signed by Charles R. Rogers, III, member and
manager.
A full-text copy of the petition containing, among other items, a
list of the Debtor's unsecured creditors, is available for free at
at Pacer Monitor at:
https://www.pacermonitor.com/filings/100125015
RAGGED MOUNTAIN: Jan. 23 Plan Confirmation Hearing
--------------------------------------------------
The Disclosure Statement explaining Ragged Mountain Equipment,
Inc.'s corrected Chapter 11 plan is approved.
A hearing on confirmation of the Plan will be held on Jan. 23, 2019
at 2:00 p.m.
Jan. 16 is fixed as the last day for filing written acceptances or
rejections of the Plan and the last day for filing and serving
written objections to confirmation of the Plan.
The Amended Disclosure Statement provides that the Debtor has lost
money so far in the Chapter 11, but it is in the slow season. The
Debtor is confident that based upon its recent working capital loan
and the upcoming busy season that it will obtain profitability.
The Debtor is currently in control of its affairs. The Plan is a
bootstrap plan funded by operations for a 5-year period. The
recovery under the Plan for general creditors is expected to be 10%
paid out over 5 years.
The Debtor anticipates a January 30, 2019 date for commencement of
the payments under the Plan.
A full-text copy of the Third Amended Disclosure Statement is
available for free at
http://bankrupt.com/misc/nhbke18-10091-0180.pdf
About Ragged Mountain Equipment
Ragged Mountain Equipment, Inc., doing business as Durable Designs
-- http://raggedmountain.com/-- operates a sporting goods store in
Intervale, New Hampshire.
The company offers equipment for camping, climbing, skiing, and
pets such as handwear, gaiters, headgear, luggage and buckles.
Ragged Mountain Equipment and its affiliate Hurricane Mountain
Equipment LLC filed Chapter 11 petitions (Bank. D.N.H. Case Nos.
18-10091 and 18-10092) on Jan. 25, 2018.
In the petitions signed by Robert D. Nadler, authorized
representative, Ragged Mountain disclosed $627,408 in assets and
$2,060,000 in liabilities; and Hurricane Mountain estimated
$500,000 to $1 million in assets and $500,000 to $1 million in
liabilities.
Steven M. Notinger, Esq., at Notinger Law, PLLC, serves as counsel
to the Debtors.
RMWM PARTNERS: April 24 Plan Confirmation Hearing Set
-----------------------------------------------------
Bankruptcy Judge A. Benjamin Goldgar approved RMWM Partners LLC's
disclosure statement in support of its second amended plan of
reorganization dated Oct. 31, 2018.
Two creditors are entitled to vote on the plan: Timbercreek and
Brightspot. By vote on the record at the status hearing on Nov. 28,
2018, Timbercreek voted to reject the plan and Brightspot voted to
accept it. Accordingly, Class II is deemed to reject the plan, and
Class III is deemed to accept the plan. Further solicitation of
votes is unnecessary.
The plan confirmation hearing is set on April 24, 2019, at 10:30
a.m. at the United States Courthouse, 219 South Dearborn Street,
Courtroom 642, Chicago, Illinois.
About RMWM Partners and RMWM Investors
RMWM Partners LLC owns in fee simple a real property located at
1460-70 Golf Road, Rolling Meadows, Illinois, valued by the company
at $24.30 million.
RMWM Partners and its affiliate RMWM Investors, LLC, sought
protection under Chapter 11 of the Bankruptcy Code (Bankr. N.D.
Ill. Case Nos. 18-12808 and 18-12812) on May 1, 2018.
In the petitions signed by Gus Dahleh, manager, RMWM Partners
disclosed $24.3 million in assets and $21.2 million in liabilities.
RMWM Investors disclosed $12.9 million in liabilities and zero
assets.
Judge Benjamin A. Goldgar presides over the cases.
David P. Lloyd, Ltd., is the Debtors' counsel.
RONALD GOODWIN: Cook Construction Buying Wichita Property for $74K
------------------------------------------------------------------
Ronald A. Goodwin and Michelle L. Goodwin ask the U.S. Bankruptcy
Court for the District of Kansas to authorize the sale of the real
estate located in Sedgwick County, Kansas, commonly known as 2711
N. Hydraulic Avenue, Wichita, Kansas, to Larry Cook Construction,
LLC for $74,250.
A hearing on the Motion is set for Jan. 10, 2019 at 10:30 a.m. The
objection deadline is Dec. 26, 2018.
On Feb. 28, 2013, the Real Estate was sold by secured creditor
David J. Waters to the Debtors on a contract for deed. The title
to the Real Estate remains in the name of Mr. Waters until the
Contract for Deed is fully paid. Per Mr. Waters' Proof of Claim
(Claim 15-1), the outstanding balance on the Contract for Deed,
which mirrors the amount of Mr. Waters' allowed secured claim, is
$52,000.
The proposed sale will be to the Buyer, a Kansas limited liability
company, for the purchase price of $74,250. The Purchase Price
includes a 10% "buyer's premium" that was added to the Buyer's
winning bid of $67,500. The Buyer's Premium is due to McCurdy
Auction, LLC per its listing agreement with the Debtors and will
not be included in the sale proceeds.
The Debtors have not claimed the Real Estate as exempt. The Real
Estate will be sold in its present, "as is" condition, with no
express or implied warranties. The Real Estate will be sold
subject to all rights of way and easements of record.
From the sale proceeds, the Debtors will pay the following in
descending order:
a. Delinquent general taxes and special assessments
attributable to the Real Estate for the fiscal years 2013 through
2017 in the aggregate amount of $4,941, plus any other amounts due
thereunder;
b. The Debtors' share of the unpaid general taxes and
assessments attributable to the Real Estate for fiscal year 2018,
prorated to the date of closing, plus any other amounts due
thereunder;
c. The Debtors' share of the closing expenses for title
insurance, recording fees and other related fees;
d. Attorney's fees and expenses in the approximate amount of
$1,600 for legal work performed by the Debtors' counsel related to
the sale;
e. The outstanding balance due secured creditor David Waters
on the Contract for Deed described; and
f. The balance of the sale proceeds to the Internal Revenue
Service per its tax liens.
The Debtors also ask, pursuant to Fed. R. Bankr. P. 6004(c), for
authority to sell the Real Estate free and clear of liens and
encumbrances. If their motion is granted, the sales will be free
and clear of all liens and encumbrances. Any liens and
encumbrances will attach to the proceeds of the sale.
They further ask the Court to cancel the 14-day stay set forth at
Fed.R.Bankr.P. 6004(h).
A copy of the Contract attached to the Motion is available for free
at:
http://bankrupt.com/misc/Ronald_Goodwin_306_Sales.pdf
Ronald A. Goodwin and Michelle L. Goodwin sought Chapter 11
protection (Bankr. D. Kan. Case No. 16-12205) on Nov. 8, 2017. The
Debtors tapped Mark J. Lazzo, Esq., as counsel.
RONALD GOODWIN: GBRB Buying Two Sedgwick Parcels for $39K
---------------------------------------------------------
Ronald A. Goodwin and Michelle L. Goodwin ask the U.S. Bankruptcy
Court for the District of Kansas to authorize the sale of the real
estate located in Sedgwick County, Kansas, described as (i) Lots 10
and 12, Washington Avenue, Moore's Addition to Wichita, Sedgwick
County, Kansas; and (ii) Lots 14, 16, 18, 20, 22 and 24, Washington
Avenue, Moore's Addition to Wichita, Sedgwick County, Kansas, to
GBRB Properties, LLC for $31,900.
A hearing on the Motion is set for Jan. 10, 2019 at 10:30 a.m. The
objection deadline is Dec. 26, 2018. The Debtors may move the
Court to hear such objection(s) on an expedited basis prior to the
Dec. 31, 2018 deadline set forth in the Debtors' Confirmed Second
Amended Chapter 11 Plan of Reorganization.
The Real Estate is identified as "Tract 11" on Exhibit 2 to the
Debtors' Second Amended Chapter 11 Plan.
The proposed sale of the Real Estate will be to GBRB, for the
purchase price of $31,900. The Purchase Price includes a 10%
Buyer's Premium that was added to the Buyer's winning bid of
$29,000 ($2,900). The Buyer's Premium is due to McCurdy Auction,
LLC per its listing agreement with the Debtors and will not be
included in the sale proceeds distributed.
The Debtors have not claimed the Real Estate as exempt. The Real
Estate will be sold in its present, "as is" condition, with no
express or implied warranties. The Real Estate will be sold
subject to all rights of way and easements of record.
From the sale proceeds, the Debtors will pay the following in
descending order:
a. Delinquent general taxes and special assessments
attributable to the Real Estate for the fiscal years 2013 through
2017 in the aggregate amount of $3,212, plus any other amounts due
thereunder;
b. The Debtors' share of the unpaid general taxes and
assessments attributable to the Real Estate for fiscal year 2018,
prorated to the date of closing, plus any other amounts due
thereunder;
c. The Debtors' share of the closing expenses for title
insurance, recording fees and other related fees;
d. Attorney's fees and expenses in the approximate amount of
$1,600 for legal work performed by the Debtors' counsel related to
the sale; and
e. The balance of the sale proceeds to the Internal Revenue
Service per its tax liens.
The Debtors also ask, pursuant to Fed. R. Bankr. P. 6004(c), for
authority to sell the Real Estate free and clear of liens and
encumbrances. If their motion is granted, the sales will be free
and clear of all liens and encumbrances. Any liens and
encumbrances will attach to the proceeds of the sale.
They further ask the Court to cancel the 14-day stay set forth at
Fed.R.Bankr.P. 6004(h).
A copy of the Contract attached to the Motion is available for free
at:
http://bankrupt.com/misc/Ronald_Goodwin_310_Sales.pdf
Ronald A. Goodwin and Michelle L. Goodwin sought Chapter 11
protection (Bankr. D. Kan. Case No. 16-12205) on Nov. 8, 2017. The
Debtors tapped Mark J. Lazzo, Esq., as counsel.
RONALD GOODWIN: Wyatt Buying Wichita Property for $143K
-------------------------------------------------------
Ronald A. Goodwin and Michelle L. Goodwin ask the U.S. Bankruptcy
Court for the District of Kansas to authorize the sale of the real
estate located in Sedgwick County, Kansas, commonly known as 302 E.
25th St. N., Wichita, Kansas, to James Wyatt for $143,000.
A hearing on the Motion is set for Jan. 10, 2019 at 10:30 a.m. The
objection deadline is Dec. 26, 2018. The Debtors may move the
Court to hear such objection(s) on an expedited basis prior to the
Dec. 31, 2018 deadline set forth in the Debtors' Confirmed Second
Amended Chapter 11 Plan of Reorganization.
The Real Estate is identified as "Tract 9" on Exhibit 2 to the
Debtors' Second Amended Chapter 11 Plan.
The proposed sale of the Real Estate will be to the Buyer for the
purchase price of $143,000. The Purchase Price includes a 10%
Buyer's Premium that was added to the Buyer's winning bid of
$130,000 ($13,000). The Buyer's Premium is due to McCurdy Auction,
LLC per its listing agreement with the Debtors and will not be
included in the sale proceeds distributed.
The Debtors have not claimed the Real Estate as exempt. The Real
Estate will be sold in its present, "as is" condition, with no
express or implied warranties. The Real Estate will be sold
subject to all rights of way and easements of record.
From the sale proceeds, the Debtors will pay the following in
descending order:
a. Delinquent general taxes and special assessments
attributable to the Real Estate for the fiscal years 2013 through
2017 in the aggregate amount of $13,403, plus any other amounts due
thereunder;
b. The Debtors' share of the unpaid general taxes and
assessments attributable to the Real Estate for fiscal year 2018,
prorated to the date of closing, plus any other amounts due
thereunder;
c. The Debtors' share of the closing expenses for title
insurance, recording fees and other related fees;
d. Attorney's fees and expenses in the approximate amount of
$1,600 for legal work performed by the Debtors' counsel related to
the sale; and
e. The balance of the sale proceeds to the Internal Revenue
Service per its tax liens.
The Debtors also ask, pursuant to Fed. R. Bankr. P. 6004(c), for
authority to sell the Real Estate free and clear of liens and
encumbrances. If their motion is granted, the sales will be free
and clear of all liens and encumbrances. Any liens and
encumbrances will attach to the proceeds of the sale.
They further ask the Court to cancel the 14-day stay set forth at
Fed.R.Bankr.P. 6004(h).
A copy of the Contract attached to the Motion is available for free
at:
http://bankrupt.com/misc/Ronald_Goodwin_308_Sales.pdf
Ronald A. Goodwin and Michelle L. Goodwin sought Chapter 11
protection (Bankr. D. Kan. Case No. 16-12205) on Nov. 8, 2017. The
Debtors tapped Mark J. Lazzo, Esq., as counsel.
RONALD L WINN: Case Summary & 10 Unsecured Creditors
----------------------------------------------------
Debtor: Ronald L Winn DDS, P.S.
3295 SW Avalon Way
Seattle, WA 98126
Business Description: Healthcare business known as Glo Dental
Studio
Chapter 11 Petition Date: December 13, 2018
Court: United States Bankruptcy Court
Western District of Washington
Case No.: 18-14732
Judge: Hon. Marc Barreca
Debtor's Counsel: Larry B. Feinstein, Esq.
Larry B Feinstein, PS
929 108th Ave. NE, Suite 1200
Bellevue, WA 98004
Phone: 425-643-9595
Email: feinstein1947@gmail.com
Total Assets: $100,001 to $500,000
Total Liabilities: $1 million to $10 million
The petition was signed by Ronald L. Winn, president.
A full-text copy of the petition containing, among other items, a
list of the Debtor's 10 unsecured creditors, is available for free
at Pacer Monitor at:
https://www.pacermonitor.com/filings/100046058
RYNARD PROPERTIES: Jan. 10 Disclosure Statement Hearing
-------------------------------------------------------
The hearing to consider the approval of the disclosure statement
explaining Rynard Properties Hilldale LP's plan of reorganization
will be held on January 10, 2019, at 10:15 A.M.
January 3, 2018 is fixed as the last day for filing and serving
written objections to the disclosure statement.
The Plan proposes to improve the occupancy rate of the multi-family
housing project located at 3500 Westline Dr., in Memphis,
Tennessee, and sell the Property through Foresite Realty
Management, LLC, to pay the Debtor's secured claims and other
creditors.
Pending the consummation of the Sale of Project, Class 1 Secured
Claims will receive no payments. Foresite will have one year from
the Effective Date of Plan to market and sell the Project. If the
Project is not sold within the one-year period the Project may be
sold at auction or at the election of Wells Fargo foreclosed.
The payments to be made under the Plan pending Sale of Project will
come from several sources: First, available cash on hand on the
Effective Date and income from operation of the Project will be
used in making the payments to Administrative Class under the Plan
pending the Sale of Project.
On or after the Effective Date, the Reorganized Debtor through
operation of the Project under Foresite operating funds of Project
will provide sufficient amounts to fund the payments to Class 2
Unsecured Priority Claims in the estimated amount of $3,710.00.
Class 3 will receive payment of all funds up to the amount of their
claims after closing costs and payment of Class 1 from the Sale of
the Project.
A copy of the Disclosure Statement is available at
https://tinyurl.com/y9lox4u3 from PacerMonitor.com at no charge.
About Rynard Properties Hilldale
Rynard Properties Hilldale LP, a Tennessee limited partnership,
operates a 148-unit multifamily apartment complex of Section 8
housing named Hilldale Apartments in the Frayser area of Memphis,
Tennessee, and currently has LEDIC operating the complex as leasing
agent.
Rynard Properties Hilldale LP, based in Fishers, IN, filed a
Chapter 11 petition (Bankr. W.D. Tenn. Case No. 16-31248) on Dec.
7, 2016. The petition was signed by John Bartle, Chief Restr. Off.
& Sec. for GP, Hilldale GP, LLC. The Debtor estimated $1 million
to $10 million in both assets and liabilities at the time of the
filing.
The case is assigned to Judge Jennie D. Latta.
The Debtor hired the Law Office of Toni Campbell Parker as its
legal counsel; Foresite Realty Management, LLC as real property
manager; and Foresite Realty Partners, LLC as real estate broker.
SANA INDUSTRIES: Seeks to Hire Richard B. Rosenblatt as Counsel
---------------------------------------------------------------
Sana Industries, Inc., seeks approval from the U.S. Bankruptcy
Court for the District of Maryland to hire the Law Offices of
Richard B. Rosenblatt, PC as its legal counsel.
The firm will advise the Debtor regarding its duties under the
Bankruptcy Code; prepare a plan of reorganization; and provide
other legal services related to its Chapter 11 case.
Rosenblatt charges these hourly fees:
Richard Rosenblatt, Esq. $350
Linda Dorney, Esq. $350
Other Attorneys $295
Paralegals $125
The Debtor paid the firm $5,500 within one year before the petition
date in connection with its bankruptcy case.
Richard Rosenblatt, Esq., disclosed in a court filing that his firm
does not represent any interest adverse to the Debtor and its
estate.
The firm can be reached through:
Richard B. Rosenblatt, Esq.
Linda M. Dorney, Esq.
The Law Offices of Richard B. Rosenblatt, PC
30 Courthouse Square, Suite 302
Rockville, MD 20850
Phone: (301) 838-0098
Email: rrosenblatt@rosenblattlaw.com
About Sana Industries Inc.
Sana Industries, Inc. sought protection under Chapter 11 of the
Bankruptcy Code (Bankr. D. Md. Case No. 18-26225) on Dec. 10, 2018.
At the time of the filing, the Debtor estimated assets of less
than $500,000 and liabilities of less than $1 million. The case
has been assigned to Judge Lori S. Simpson.
SHILOH MISSIONARY: Case Summary & 3 Unsecured Creditors
-------------------------------------------------------
Debtor: Shiloh Missionary Baptist Church
of Daytona Beach, Incorporated
540 S. Dr. Martin Luther King Blvd.
Daytona Beach, FL 32114
Business Description: A baptist church established in 1992
Chapter 11 Petition Date: December 17, 2018
Court: United States Bankruptcy Court
Middle District of Florida
Case No.: 18-07791
Debtor's Counsel: Buddy D. Ford, Esq.
Buddy D. Ford, P.A.
9301 West Hillsborough Avenue
Tampa, FL 33615-3008
Phone: (813)877-4669
E-mail: All@tampaesq.com
Total Assets: $500,001 to $1 million
Total Liabilities: $1,000,001 to $10 million
The petition was signed by Steve J. Brown, trustee and chairman of
finance.
A full-text copy of the petition containing, among other items, a
list of the Debtor's three unsecured creditors is available at
Pacer Monitor for free at:
https://www.pacermonitor.com/filings/100214004
SILVERADO STAGES: Committee Seeks to Hire Perkins Coie as Counsel
-----------------------------------------------------------------
The official committee of unsecured creditors of Silverado Stages,
Inc., seeks approval from the U.S. Bankruptcy Court for the
District of Arizona to hire Perkins Coie LLP as its legal counsel.
The firm will represent the committee in negotiations with the
company and its affiliates; review financing agreements; assist the
committee in the preparation of a bankruptcy plan or any potential
sale of the Debtors' assets; and provide other legal services
related to the Debtors' Chapter 11 cases.
The firm's hourly rates range from $300 to $1,100 for lawyers and
from $125 to $350 for paralegals. Bradley Cosman, Esq., the
attorney who will be providing the services, charges an hourly fee
of $520.
Perkins Coie is "disinterested" as defined in Section 101(14) of
the Bankruptcy Code, according to court filings.
The firm can be reached through:
Bradley A. Cosman, Esq.
Jordan A. Kroop, Esq.
Perkins Coie LLP
2901 North Central Avenue, Suite 2000
Phoenix, AZ 85012-2788
Telephone: 602.351.8000
Facsimile: 602.648.7000
Email: BCosman@perkinscoie.com
Email: JKroop@perkinscoie.com
About Silverado Stages
Headquartered in Phoenix, Arizona, Silverado Stages, Inc. --
https://silveradostages.com/ -- with 10 locations on the West
Coast, is a federally licensed motor carrier and operates as a
Public Stage under California DOT authority. The company is
additionally certified as a U.S. Department of Defense motor
carrier to provide transportation for the military and by the CHP
as a School Pupil Activities Bus (SPAB) operator.
Silverado Stages was founded in 1987 and has had the most diverse
background in passenger operations. It operates a diverse fleet of
over 300 passenger vehicles, over 60 of which are ADA compliant.
It currently operates from terminals in San Luis Obispo,
Sacramento, Santa Barbara, Torrance, San Diego, Reno, and Las
Vegas.
Silverado Stages and seven of its affiliates sought protection
under Chapter 11 of the Bankruptcy Code (Bankr. D. Ariz. Lead Case
No. 18-12203) on Oct. 5, 2018.
In the petitions signed by James Galusha, chairman, Silverado
Stages estimated $10 million to $50 million in assets and $50
million to $100 million in liabilities as of the bankruptcy
filing.
The Debtor hired Sonoran Capital Advisors, LLC, and appointed the
firm's managing director Matthew Foster as chief restructuring
officer. Allen Barnes & Jones, PLC, is the Debtor's legal
counsel.
The Office of the U.S. Trustee appointed an official committee of
unsecured creditors on Dec. 3, 2018.
SINDESMOS HELLINIKES-KINOTITOS: Voluntary Chapter 11 Case Summary
-----------------------------------------------------------------
Debtor: Sindesmos Hellinikes-Kinotitos of Chicago
6041 West Diversey Avenue
Chicago, IL 60639
Business Description: Holy Trinity Hellenic Orthodox Church
Chapter 11 Petition Date: December 14, 2018
Court: United States Bankruptcy Court
Northern District of Illinois
Case No.: 18-34548
Judge: Hon. Timothy A Barnes
Debtor's Counsel: David R. Herzog, Esq.
Herzog & Schwartz, P.C.
77 W. Washington Street, Suite 1400
Chicago, IL 60602
Phone: (312) 977-1600
E-mail: drhlaw@mindspring.com
Total Assets: $1 million to $10 million
Total Liabilities: $1 million to $10 million
The petition was signed by Stanley Andreakis, authorized
representative.
The petition does not include a list of the Debtor's unsecured
creditors.
A copy of the petition is available at PacerMonitor at no extra
charge at
https://www.pacermonitor.com/filings/100109558
SPECIAL ELECTRIC: Court Affirms Summary Ruling Against David Hart
-----------------------------------------------------------------
David Hart, in the case captioned SHARON HART, individually and as
successor in interest to DAVID HART, Plaintiff and Appellant, v.
SPECIAL ELECTRIC COMPANY, INC., Defendant and Respondent, No.
A151293 (Cal. App.), appeals from a summary judgment entered by the
trial court in favor of respondent Special Electric Company, Inc.,
a bankrupt Wisconsin corporation that was dissolved in 2012. Upon
review, the California Court of Appeals affirmed the trial court's
decision.
Hart alleged that his mesothelioma was caused by exposure to
asbestos supplied by Special Electric and other defendants. The
trial court concluded that his claims against Special Electric are
time-barred under Wisconsin law. On appeal, Hart argued (1) the
operative Wisconsin statute is preempted by Special Electric's
Chapter 11 bankruptcy plan, and (2) Special Electric failed to show
that its notice of dissolution complied with Wisconsin law and
triggered the two-year claims period.
Hart argued that summary judgment should not have been granted
because Wisconsin's two-year period for claims against dissolved
corporations is preempted by Special Electric's reorganization
plan. The Court holds that the argument is unavailing.
Under 11 U.S.C. section 1142(a), a reorganization plan will be
implemented "notwithstanding any otherwise applicable nonbankruptcy
law, rule, or regulation relating to financial condition." Thus, "a
reorganization plan under Chapter 11 of the Bankruptcy Code
expressly preempts otherwise applicable nonbankruptcy laws."
Here, however, the Plan specifically allows for the application of
state law, such as Wisconsin's two-year period for claims against
dissolved corporations. Paragraph 8.1(c)(i) of the Plan reserves
for Special Electric's insurers the right to "defend and/or settle
Unliquidated Personal Injury Claims . . . in accordance with and in
a manner consistent with the language of the applicable Insurance
Policies and applicable state law." The Plan does not define
"applicable state law" or limit which state laws the insurers may
invoke.
Because the Plan explicitly allows for the application of state law
in defending against claims, it cannot be said that invocation of
the two-year statutory deadline for asserting claims hinders the
implementation of the Plan. The Plan, therefore, does not preempt
or otherwise preclude the application of Wisconsin's two-year
claims period in the defense against Hart's claim.
Hart argued that summary judgment was nonetheless improper because
the Notice triggering the two-year claims period was defective.
Hart contends that Special Electric failed to show that the Notice
complied with section 180.1407 because the Notice (1) was not
published by the corporation itself and (2) did not include a
description of the information to be included in a claim. Hart's
arguments are again unavailing.
The Court holds that in light of the language of the Plan and the
evidence that Special Electric had no corporate officers or
directors after Erato's 2009 resignation, Special Electric
established that the insurers were authorized to publish the Notice
on Special Electric's behalf. The defect in the notice is also not
fundamental in the light of the statutory purpose. The omission of
the description of information to be included in the claim was only
a technical defect. A technical defect is not fatal to the Notice
unless it prejudiced Hart.
In sum, Hart fails to establish that the court erred in granting
Special Electric's motion for summary judgment. The judgment is
affirmed.
A copy of the Court's Decision dated Nov. 26, 2018 is available at
https://bit.ly/2PEsOf8 from Leagle.com.
STERLING MID-HOLDINGS: S&P Cuts ICR to CCC-, Then Withdraws Rating
------------------------------------------------------------------
S&P Global Ratings said it lowered its long-term issuer credit
rating on Sterling Mid-Holdings Ltd. to 'SD' (selective default)
from 'CCC-'.
S&P also lowered its issue ratings on the company's senior secured
notes to 'D' (default) from 'CC'. We then withdrew the issue
ratings at the company's request.
The rating action follows Sterling's decision to restructure its
debt agreements on its $922.8 million pay-in-kind (PIK) toggle
notes due 2020 (2016 notes) and its $55 million 10.5% cash pay
notes due 2020 (2014 notes), so that the company can continue
making PIK interest payments on the notes owned by its financial
sponsor, Lone Star. Lone Star currently owns 100% of Sterling and
about 97.5% of the 2016 and 2014 notes.
The original structure of the 2016 notes allowed for the PIK
interest payments through June 15, 2018, at a 12.0% rate and then
cash interest payments starting Dec. 15, 2018, at 10.5%. The new
notes will replace the 2016 and 2014 notes, pay a 2% cash interest
(at a minimum) and 10% PIK, and will mature in 2023. We view the
company's decision to amend the notes to a longer maturity and
continue paying Lone Star PIK interest, as opposed to cash
interest, as less than the original imputed promise and tantamount
to a distressed debt exchange.
S&P continues to view Sterling's capital structure as
unsustainable. However, the financial sponsor owns the vast
majority of the outstanding notes and has worked with the company
to reorganize its capital structure. Sterling has extended the
maturity of its asset-based revolving credit facility to Dec. 28,
2018, as it continues to work toward its refinancing. S&P will
likely reevaluate the issuer credit rating following the company's
actions to address this facility.
TAJA REAL: Seeks to Hire Flaster/Greenberg as Legal Counsel
-----------------------------------------------------------
Taja Real Estate Investors LLC seeks approval from the U.S.
Bankruptcy Court for the District of New Jersey to hire
Flaster/Greenberg, P.C.. as its legal counsel.
The firm will assist in the preparation of a plan of reorganization
and will provide other legal services related to its Chapter 11
case.
Flaster/Greenberg charges these hourly fees:
Douglas Stanger, Esq. $520
Associates/Shareholders $300 - $630
Paralegals $135 - $295
Douglas Stanger, Esq. at Flaster/Greenberg, disclosed in a court
filing that he and his firm are "disinterested" as defined in
section 101(14) of the Bankruptcy Code.
The firm can be reached through:
Douglas S. Stanger, Esq.
Flaster/Greenberg, P.C.
1835 Market Street, Suite 1050
Philadelphia, PA 19103-2924
Tel: (609) 645-1881
Fax: (609) 645-9932
E-mail: doug.stanger@flastergreenberg.com
About Taja Real Estate Investors
Taja Real Estate Investors LLC is an investment company
headquartered in Pleasantville, New Jersey. It has equitable
interest in 21 commercial and residential properties located in New
Jersey and Pennsylvania.
Taja Real Estate Investors sought protection under Chapter 11 of
the Bankruptcy Code (Bankr. D.N.J. Case No. 18-34266) on Dec. 10,
2018. At the time of the filing, the Debtor disclosed $2,871,245
in assets and $480,126 in liabilities. Flaster/Greenberg, P.C., is
the Debtor's counsel.
TRIBUNE MEDIA: Order Sustaining Objection to WTC Claim Reversed
---------------------------------------------------------------
Wilmington Trust Company, in the appeals case captioned WILMINGTON
TRUST COMPANY, Appellant, v. TRIBUNE MEDIA COMPANY, et al.,
Appellees, Civil Action No. 1:15-cv-01116-RGA (D. Del.) seeks
reversal of the Bankruptcy Court's order sustaining reorganized
Debtors Tribune Media Company and affiliates' objection to the
Class 1F other Parent Claim asserted by Wilmington Trust Company
and from the memorandum opinion related to that order, both dated
Nov. 19, 2015.
Upon analysis, District Judge Richard G. Andrews reversed the order
of the Bankruptcy Court and the case is remanded for further
consideration.
The issue on appeal is whether, considering Travelers Cas. & Sur.
Co. of Am. v. Pac. Gas & Elec. Co., Appellant Wilmington Trust
Company is entitled to an allowed, unsecured claim for
post-petition attorneys' fees under an otherwise valid prepetition
contract. The answer to that question hinges on the interpretation
of two provisions of the Bankruptcy Code: Section 502 and Section
506(b).
Appellees argue, and the Bankruptcy Court concluded, that Section
506(b) is properly read as implicitly limiting claims allowable
under Section 502. In reaching this conclusion, Appellees apply
some variation of the expressio unius est exclusio alterius
(express mention of one thing excludes all others) canon of
statutory construction. Specifically, Appellees argue that because
the statute expressly allows a claim for secured reasonable
attorneys' fees in Section 506(b), Congress must otherwise have
meant for such claims to be disallowed.
The courts of appeals that have considered this issue
post-Travelers have unanimously rejected Appellees' position and
have allowed unsecured claims for contractual attorneys' fees that
accrued post-filing of the bankruptcy petition.
The Court agrees with the position adopted by every court of
appeals faced with this question; Section 506(b) does not limit the
allowability of unsecured claims for contractual post-petition
attorneys' fees under Section 502. Therefore, the order of the
Bankruptcy Court is reversed and the case is remanded for further
consideration.
A copy of the Court's Memorandum Order dated Nov. 26, 2018 is
available at https://bit.ly/2Lp0cGB from Leagle.com.
Wilmington Trust Company, 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.
Tribune Media Company, Appellee, represented by Norman L. Pernick
-- npernick@coleschotz.com -- Cole, Schotz, Meisel, Forman &
Leonard, P.A., James F. Bendernagel -- JBENDERNAGEL@SIDLEY.COM --
People Sidley Austin LLP, pro hac vice, James O. Johnston --
jjohnston@jonesday.com -- Jones Day, pro hac vice, Janet Kathleen
Stickles -- jstickles@coleschotz.com -- Cole, Schotz, Meisel,
Forman & Leonard, P.A. & Patrick J. Reilley --
preilley@coleschotz.com -- 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.
TSAWD HOLDINGS: Court Grants M.J. Soffe Bid for Summary Judgment
----------------------------------------------------------------
Bankruptcy Judge Mary F. Walrath addressed the cross-motions for
summary judgment filed by Wilmington Savings Fund Society, FSB and
M.J. Soffe, LLC, as well as Soffe's motion for summary judgment
against Debtors TSAWD Holdings Inc. in the case captioned TSA
STORES, INC., TSA PONCE, INC., and TSA CARIBE, INC., Plaintiffs,
and WILMINGTON SAVINGS FUND SOCIETY, FSB, AS SUCCESSOR
ADMINISTRATIVE AND COLLATERAL Plaintiff-Intervenor/Counterclaim
Defendant, v. M J SOFFE, LLC a/k/a M.J. SOFFE, LLC,
Defendant/Counterclaim Plaintiff, Adv. No. 16-50364(MFW) (Bankr. D.
Del.)
The dispute is which party has priority in the inventory (and its
proceeds) sold by Soffe to the Debtors on consignment. Because the
Court finds that WSFS did not have actual knowledge of Soffe's
consignment interest until after Soffe filed a UCC-1 financing
statement on Feb. 4, 2016, the Court grants WSFS's motion and deny
Soffe's motion with respect to goods sold before that date. In
light of that ruling and certain concessions of the parties, the
Court grants Soffe's motion for summary judgment against the
Debtors, as the Debtors' preference and strong arm claims are now
moot.
WSFS argued that Article 9 of the UCC governs the priority of the
competing interests in the Disputed Goods. It contended that its
interest is superior to Soffe's interest in the Disputed Goods
delivered prior to February 4, 2016, because its financing
statement was filed first. N.Y. U.C.C. section 9-322(a)(1). Soffe
responds that Article 9 does not apply to its interest because BOA
had actual knowledge of its consignment interest and that knowledge
is imputed to the Term Loan Lenders.
In this case, the Court finds that Soffe's evidence is insufficient
to establish that Bank of America, N.A. (BOA), as the Term Loan
Agent, had actual knowledge of Soffe's consignment relationship
with the Debtors. At most Soffe sought to show that Hipsman, a BOA
Vice-President in the Business Capital Group, knew that Soffe sold
goods on consignment to the Debtors. However, Hipsman and the
Business Capital Group played no role in administering the Debtors'
Term Loan Agreement. The latter was handled by distinct BOA
departments, the Wholesale Leveraged Finance Unit and the Agency
Management Team. Therefore, there is no basis for finding that any
knowledge Hipsman may have acquired was actually known to BOA in
its capacity as the Term Loan Agent.
Because the Court finds that Soffe has failed to establish that BOA
had actual knowledge of its consignment relationship with the
Debtors or that it could be imputed to the Term Loan Lenders, the
Court concludes that the relative interests of Soffe and the Term
Loan Lenders are governed by Article 9 of the UCC.
Soffe also asked the Court to grant summary judgment and dismiss
the Debtors' preference and strong arm claims.
With regard to the Debtors' preference claim, Soffe argued that it
filed its UCC-1 to protect its consignment interest in the
$580,207.53 worth of goods that it shipped to the Debtors after
filing its UCC-1, not to protect the consigned goods it shipped to
the Debtors prior to the UCC-1. Soffe, therefore, argued that its
UCC-1 filing cannot constitute a preference because it was not a
transfer on account of an antecedent debt. 11 U.S.C. section
547(b)(2).
The Debtors do not dispute that Soffe has a perfected security
interest in goods delivered to the Debtors after the UCC-1 was
filed. The Debtors argue only that if Soffe is asserting a
perfected security interest in the consigned goods delivered to the
Debtors before it filed the UCC-1, then that claim is avoidable as
a preference.
Because the Debtors concede that Soffe is perfected as to goods
delivered after the UCC-1 was filed, the Court concludes that the
Debtors' preference claim is moot. The Court further concludes that
the Debtors' strong arm claim against Soffe is also moot given the
Court's earlier conclusion that WSFS has an interest superior to
Soffe's interest in the Disputed Goods delivered before Soffe's
UCC-1 filing. Accordingly, the Court grants Soffe's motion for
summary judgment and dismisses the Debtors' claims as moot.
A copy of the Court's Opinion dated Nov. 26, 2018 is available at
https://bit.ly/2Lg3n30 from Leagle.com.
TSA Stores, Inc., TSA Ponce, Inc. & TSA Caribe, Inc., Plaintiffs,
represented by Andrew L. Magaziner -- amagaziner@ycst.com -- Young
Conaway Stargatt & Taylor, LLP & Michael S. Neiburg --
mneiburg@ycst.com -- Young Conaway Stargatt & Taylor, LLP.
M J Soffe, LLC, aka, Defendant, represented by Amy D. Brown --
abrown@gsbblaw.com -- Gellert Scali Busenkell & Brown, Michael G.
Busenkell -- mbusenkell@gsbblaw.com -- Gellert Scali Busenkell &
Brown, LLC, R. Stephen McNeill -- rmcneill@potteranderson.com --
Potter Anderson & Corroon LLP, Jeremy William Ryan --
jryan@potteranderson.com -- Potter Anderson & Corroon LLP, John A.
Sensing -- jsensing@potteranderson.com -- Potter Anderson & Corroon
LLP & Etta Ren Wolfe -- ewolfe@potteranderson.com -- Potter
Anderson & Corroon LLP.
Kurtzman Carson Consultants LLC, Claims Agent, represented by
Albert Kass, Kurtzman Carson Consultants, LLC.
Wilmington Savings Fund Society, FSB, as Successor Administrative
and Collateral Agent, Intervenor-Plaintiff, represented by Daniel
B. Butz -- dbutz@mnat.com -- Morris, Nichols, Arsht & Tunnell.
Kurtzman Carson Consultants LLC, Claims Agent, represented by
Albert Kass , Kurtzman Carson Consultants, LLC. Wilmington Savings
Fund Society, FSB, as Successor Administrative and Collateral
Agent, Intervenor-Plaintiff, represented by Daniel B. Butz, Morris,
Nichols, Arsht & Tunnell.
M J Soffe, LLC, Counter-Claimant, represented by Amy D. Brown,
Gellert Scali Busenkell & Brown, Michael G. Busenkell, Gellert
Scali Busenkell & Brown, LLC, R. Stephen McNeill, Potter Anderson &
Corroon LLP, Jeremy William Ryan, Potter Anderson & Corroon LLP &
John A. Sensing, Potter Anderson & Corroon LLP.
About TSAWD Holdings
TSAWD Holdings Inc., formerly known as Sports Authority Holdings,
and its affiliates are sporting goods retailers with roots dating
back to 1928. The Debtors currently operate 464 stores and five
distribution centers across 40 U.S. states and Puerto Rico. The
Debtors offer a broad selection of goods from a wide array of
household and specialty brands, including Adidas, Asics, Brooks,
Columbia, FitBit, Hanesbrands, Icon Health and Fitness, Nike, The
North Face, and Under Armour, in addition to their own private
label brands. The Debtors employ 13,000 people.
TSAWD and six of its affiliates filed Chapter 11 bankruptcy
petitions (Bankr. D. Del. Case Nos. 16-10527 to 16-10533) on March
2, 2016. The petitions were signed by Michael E. Foss as chairman
and chief executive officer.
The Debtors have engaged Robert A. Klyman, Esq., Matthew J.
Williams, Esq., Jeremy L. Graves, Esq., and Sabina Jacobs, Esq.,
at
Gibson, Dunn & Crutcher LLP as general counsel; Michael R. Nestor,
Esq., Kenneth J. Enos, Esq., and Andrew L. Magaziner, Esq., at
Young Conaway Stargatt & Taylor, LLP as co-counsel; Rothschild
Inc.
as investment banker; FTI Consulting, Inc., as financial advisor;
and Kurtzman Carson Consultants LLC as notice, claims,
solicitation, balloting and tabulation agent.
Andrew Vara, Acting U.S. trustee for Region 3, appointed seven
creditors of Sports Authority Holdings Inc. to serve on the
official committee of unsecured creditors. Lawyers at Pachulski
Stang Ziehl & Jones LLP represent the Official Committee of
Unsecured Creditors.
* * *
In May 2016, the Delaware Court allowed Sports Authority to
proceed
with the liquidation of all of its roughly 450 stores across the
country after the Debtors resolved or beat out about 100
objections
to the sale. Judge Mary F. Walrath approved an agreement for a
joint venture of Gordon Brothers Retail Partners LLC, Hilco
Merchant Resources LLC and Tiger Capital Group LLC to conduct
going
out of business sales. The Joint Venture won an auction for the
Debtors' inventory. The Debtors failed to obtain a winning
going-concern bid at a May 17, 2016 auction.
In July 2016, Judge Walrath approved the sale of the Debtors'
intellectual property and more than two dozens of property leases
to Dick's Sporting Goods Inc. Dick's bid was reportedly for $15
million.
TSAWD HOLDINGS: PAC Wins Summary Judgment Bid vs WSF
----------------------------------------------------
Bankruptcy Judge Mary F. Walrath granted Defendant Performance
Apparel Corporation's motion for summary judgment and denied
Plaintiff-Intervenor Wilmington Savings Fund Society, FSB's motion
for summary judgment in the case captioned TSA STORES, INC., TSA
PONCE, INC., and TSA CARIBE, INC., et al., Plaintiffs, and
WILMINGTON SAVINGS FUND SOCIETY, FSB, AS SUCCESSOR ADMINISTRATIVE
AND COLLATERAL AGENT, Plaintiff-Intervenor Counterclaim Defendant.
v. PERFORMANCE APPAREL CORP. a/k/a HOT CHILLY'S, INC.,
Defendant/Counterclaim Plaintiff, Adv. No. 16-50317 (MFW) (Bankr.
D. Del.).
Wilmington Savings Fund Society, FSB ("WSFS") sought disgorgement
of proceeds from certain goods sold on consignment. Defendant
Performance Apparel Corporation ("PAC") contended it is entitled to
keep the proceeds because WSFS's actual knowledge of the
consignment relationship between PAC and the Debtors precludes WSFS
from claiming a superior interest in goods that PAC sold to the
Debtors on consignment. The Court agrees with PAC and finds that
WSFS had actual knowledge of PAC's consignment interest which
precludes it from obtaining a superior interest in the consigned
goods.
In its motion for summary judgment, WSFS argued that it has a
perfected security interest under the Uniform Commercial Code
("UCC") that is superior to the security interest asserted by PAC
because PAC allowed its 2009 UCC-1 financing statement to lapse,
thereby resulting in its interest becoming unperfected.
PAC argued that notwithstanding the lapse of its UCC security
interest, WSFS cannot assert its rights are superior to PAC. PAC
argued that its consignment rights are not subject to the filing
requirements and priorities of the UCC at all, because the Term
Loan Lenders had actual knowledge of PAC's consignment arrangement
with the Debtors before the Term Loan was extended.
The Court holds that the UCC is to be liberally construed to
promote its underlying purposes. The purpose underlying the UCC
provisions with respect to priority of consignment interests is to
protect other creditors from hidden liens. If the Term Loan Lenders
had actual knowledge of PAC's consignment interests at the time the
Term Loan was granted, they could not have been misled by any
"hidden" lien. Requiring PAC to give them "constructive" notice,
when they already had actual notice, would be to elevate form over
substance and would not serve the purposes of the UCC.
Therefore, the Court concludes that if the Term Loan Lenders knew
PAC was a consignor of goods to the Debtors at the time they
extended a loan to the Debtors, it would be absurd to conclude that
PAC had to give constructive notice to them by filing a UCC
continuation form.
The Court also finds that because the Term Loan Agent (and Lenders)
actually knew of PAC's interest in the consigned goods at the time
the Term Loan was extended, the UCC does not determine their
relative priority and the rights of the consignor are paramount.
Therefore, the Court concludes that PAC's interest in the goods it
consigned to the Debtors is superior to the blanket interests of
the Term Loan Lenders in the Debtors' inventory.
A copy of the Court's Opinion dated Nov. 26, 2018 is available at
https://bit.ly/2EkoAYd from Leagle.com.
TSA Stores, Inc., TSA Ponce, Inc. & TSA Caribe, Inc., Plaintiffs,
represented by Andrew L. Magaziner -- amagaziner@ycst.com -- Young
Conaway Stargatt & Taylor, LLP & Michael S. Neiburg --
mneiburg@ycst.com -- Young Conaway Stargatt & Taylor, LLP.
Performance Apparel Corp., Defendant, represented by R. Stephen
McNeill -- rmcneill@potteranderson.com -- Potter Anderson &
Corroon LLP, Edwin J. Rambuski, Law Offices of Edwin J. Rambuski &
John A. Sensing –- jsensing@potteranderson.com -- Potter Anderson
& Corroon LLP.
Kurtzman Carson Consultants LLC, Claims Agent, represented by
Albert Kass, Kurtzman Carson Consultants, LLC.
Performance Apparel Corp a/k/a Hot Chillys, Inc, Counter-Claimant,
represented by R. Stephen McNeill Potter Anderson & Corroon LLP &
John A. Sensing, Potter Anderson & Corroon LLP.
Wilmington Savings Fund Society, FSB, as successor administrative
and collateral agent, Intervenor-Plaintiff, represented by Daniel
B. Butz -- dbutz@mnat.com -- Morris, Nichols, Arsht & Tunnell &
Gregory W. Werkheiser , Morris, Nichols, Arsht & Tunnell.
About TSAWD Holdings
TSAWD Holdings Inc., formerly known as Sports Authority Holdings,
and its affiliates are sporting goods retailers with roots dating
back to 1928. The Debtors currently operate 464 stores and five
distribution centers across 40 U.S. states and Puerto Rico. The
Debtors offer a broad selection of goods from a wide array of
household and specialty brands, including Adidas, Asics, Brooks,
Columbia, FitBit, Hanesbrands, Icon Health and Fitness, Nike, The
North Face, and Under Armour, in addition to their own private
label brands. The Debtors employ 13,000 people.
TSAWD and six of its affiliates filed Chapter 11 bankruptcy
petitions (Bankr. D. Del. Case Nos. 16-10527 to 16-10533) on March
2, 2016. The petitions were signed by Michael E. Foss as chairman
and chief executive officer.
The Debtors have engaged Robert A. Klyman, Esq., Matthew J.
Williams, Esq., Jeremy L. Graves, Esq., and Sabina Jacobs, Esq.,
at
Gibson, Dunn & Crutcher LLP as general counsel; Michael R. Nestor,
Esq., Kenneth J. Enos, Esq., and Andrew L. Magaziner, Esq., at
Young Conaway Stargatt & Taylor, LLP as co-counsel; Rothschild
Inc.
as investment banker; FTI Consulting, Inc., as financial advisor;
and Kurtzman Carson Consultants LLC as notice, claims,
solicitation, balloting and tabulation agent.
Andrew Vara, Acting U.S. trustee for Region 3, appointed seven
creditors of Sports Authority Holdings Inc. to serve on the
official committee of unsecured creditors. Lawyers at Pachulski
Stang Ziehl & Jones LLP represent the Official Committee of
Unsecured Creditors.
* * *
In May 2016, the Delaware Court allowed Sports Authority to
proceed
with the liquidation of all of its roughly 450 stores across the
country after the Debtors resolved or beat out about 100
objections
to the sale. Judge Mary F. Walrath approved an agreement for a
joint venture of Gordon Brothers Retail Partners LLC, Hilco
Merchant Resources LLC and Tiger Capital Group LLC to conduct
going
out of business sales. The Joint Venture won an auction for the
Debtors' inventory. The Debtors failed to obtain a winning
going-concern bid at a May 17, 2016 auction.
In July 2016, Judge Walrath approved the sale of the Debtors'
intellectual property and more than two dozens of property leases
to Dick's Sporting Goods Inc. Dick's bid was reportedly for $15
million.
TX SUPERIOR: Case Summary & 20 Unsecured Creditors
--------------------------------------------------
Debtor: TX Superior Communications, LLC
6223 Krempen Ave.
San Antonio, TX 78233-4585
Business Description: Contractor in Texas
Chapter 11 Petition Date: December 17, 2018
Court: United States Bankruptcy Court
Western District of Texas, San Antonio Division
Case No.: 18-52973
Judge: Hon. Craig A. Gargotta
Debtor's Counsel: Ronald Smeberg, Esq.
The Smeberg Law Firm
2010 W. Kings Hwy
San Antonio, TX 78201
Phone: 210-787-3815
E-mail: ron@smeberg.com
Total Assets: $100,001 to $500,000
Total Liabilities: $1 million to $10 million
The petition was signed by Eduardo Espinoza, Jr., manager.
A copy of the petition, containing, among other items, a list of
the Debtor's 20 unsecured creditors, is available at PacerMonitor
at no extra charge at:
https://www.pacermonitor.com/filings/100211489
UNISON ENVIRONMENTAL: Jan. 10 Plan Confirmation Hearing
-------------------------------------------------------
An amended disclosure statement and amended plan under Chapter 11
of the Bankruptcy Code
having been filed by Unison Environmental Services, LLC, on Dec. 5,
2018 and then a second amended disclosure statement having been
filed on Dec. 6.
The amended disclosure statement filed by the Debtor is
conditionally approved.
The hearing to consider final approval of the amended disclosure
statement (if a written objection has been timely filed) and for
hearing on confirmation of the amended plan will be held on Jan.
10, 2019, at 11:00 A.M. Jan. 8 is the last day for filing written
acceptances or rejections of the plan and the last date to file and
serve written objections to the disclosure statement and
confirmation of the plan.
Class 2.A. Secured claims of Bank of Cleveland are impaired with
collateral composed of real estate accounts receivable, inventory,
furnishings, fixtures, furniture, equipment, general intangibles,
and all other collateral securing the Debtor's prepetition
obligations. Total allowed secured claims amount of $4,700,000 more
or less and first priority of lien. Bank of Cleveland's Allowed
Secured Claims in the amount of $4,700,000, more or less, shall be
paid in monthly payments in the amount of $29,102. The Allowed
Secured Claims of Bank of Cleveland will be paid interest at the
rate 4.5% APR. The above monthly payment is based on a 20 year
amortization.
Class 2.B. Secured claim of Theta Group, LLC is impaired with
collateral composed of mortgage on landfill real estate. Total
allowed secured claim amount of $300,000 and second priority of
lien. Class 2.B will be paid $5000/monthly payment for 60 months
from on or before the Effective Date.
Class 2.C. Secured claims of Robert Thompson are impaired with
collateral composed of mortgage on landfill real estate. Total
allowed secured claims amount of $100,000 and third priority of
lien. $1667/monthly payment for 60 months from on or before the
Effective Date.
Class 2.D. Secured claim of Komatsu Financial Limited Partnership
is impaired with collateral composed of Komatsu PC200LC-8 hydraulic
excavator. Total allowed secured Claim amount of $29,029.37 and
first priority of lien. Monthly payments of $1000 on or before 30
days from the Effective Date until the Allowed Secured Claim is
paid in full.
Class 3 - General Unsecured Creditors is impaired. Holders of
Allowed Unsecured Claims not separately classified under the Plan
shall receive payments in cash in an amount equal to one hundred
(100%) percent of each holder's Allowed Unsecured Claim payable in
quarterly payments beginning the first Business Day of the month
thirty (30) days following the Effective Date.
Class 4 - Unsecured Convenience Class is impaired. Consists of the
unsecured claims held by unsecured creditors that are in an amount
up to $1000 and any unsecured claims held by unsecured creditors
that elect on the ballot to reduce their claim to $1000 to be
treated as Class 4 claimant instead of treatment as a general
unsecured creditor under Class 3. Holders of Allowed Convenience
Claims shall receive payment in full in Cash on account of each
holder’s Allowed Convenience.
Class 5 - Equity Security Holders of the Debtor are impaired.
Equity interest holders composed of Knox Horner (50%); Roberta
Horner (50%). Class will receive no payments under the Plan but
will restore their ownership of the Reorganized Debtor.
All payments under the Plan which are due on the Effective Date
will be funded from the Cash on hand generated by operations. For
funding after the Effective Date, the funds necessary to ensure
continuing performance under the Plan after the Effective Date will
be (or may be) obtained from: (a) any and all remaining Cash
retained by the Reorganized Debtor after the Effective Date; (b)
Cash generated from the post-Effective Date operations of the
reorganized Debtor; (c) any other contributions or financing (if
any) which the Reorganized Debtor may obtain on or after the
Effective Date.
A full-text copy of the Disclosure Statement dated December 6,
2018, is available at:
http://bankrupt.com/misc/tneb18-118bk10113SDR-202.pdf
About Unison Environmental Services
Unison Environmental Services, LLC, provides waste treatment and
disposal services. The company's principal assets are located at
6315 12th Ave East Tuscaloosa, AL 35405.
Unison Environmental Services filed a Chapter 11 (Bankr. E.D. Tenn.
Case No. 18-10113) on Jan. 11, 2018. In the petition signed by
Jefferson Knox Horner, chief manager, the Debtor estimated $1
million to $10 million in total assets and liabilities. Judge
Shelley D. Rucker presides over the case. David J. Fulton, Esq.,
at Scarborough & Fulton, is the Debtor's counsel. The Richardson
Law Firm, is the special counsel.
URBAN ONE: S&P Affirms 'B-' ICR on Refinancing, Outlook Stable
--------------------------------------------------------------
Radio broadcaster and cable TV operator Urban One Inc. is issuing a
$192 million unsecured term loan and $50 million secured term loan
(both unrated) to repay the outstanding balance of its senior
subordinated notes due February 2020. S&P believes that upon
completion of the proposed refinancing, the redemption of the
senior subordinated notes will alleviate the refinancing risk
associated with the November 2019 springing maturity of its
existing $350 million senior secured term loan and result in no
material maturities before 2022.
S&P Global Ratings revised its outlook on Urban One to stable from
negative and affirmed its 'B-' issuer credit rating.
At the same time, S&P revised the recovery rating on the company's
existing senior secured debt to '3' from '2' and lowered the
issue-level ratings to 'B-' from 'B'.
S&P said, "The stable outlook reflects our expectation that Urban
One Inc. will generate around $50 million of free operating cash
flow (FOCF) over the next year, which will be primarily used for
debt reduction and to reduce leverage to the mid-6x area.
"The outlook revision to stable reflects the reduced refinancing
risk following Urban One's prospective repurchase of its senior
subordinated notes and our expectation that the company will
generate sufficient cash to reduce leverage from around 7x to the
mid-6x area over the next year. Once the subordinated notes are
redeemed, the maturity of the company's existing $350 million
senior secured term loan will be extended to January 2022 (91 days
before the maturity of its 7.375% senior secured notes due April
2022), with no material maturities before that date. Despite higher
borrowing costs associated with the proposed financing, the terms
of the new credit agreement require significant debt amortization,
which we expect the company to be able to support through cash
flow, and any excess cash flow will be subject to a 75% cash flow
sweep.. Further, the company has performed in line with our
expectations for the first three quarters of 2018, stabilizing
revenue declines following a sharp decline in 2017. This has
resulted in FOCF to debt stabilizing in the 5% area.
"Our rating continues to reflect ongoing low-single digit
percentage revenue declines in the company's radio and cable
segments, which make up more than 80% of its revenue. Like other
radio broadcasters, we view Urban One's radio segment as subject to
long-term declines because advertisers are migrating to alternative
media platforms (primarily online and, to a lesser extent,
television), which leads to an inability to materially raise
advertising rates."
TV One, the company's cable network, has experienced revenue
declines over the last two years due a lack of compelling content
that has led to primetime ratings and subscriber declines. S&P
expects TV One will remain challenged because it believes the
company will face difficulty obtaining compelling content at
affordable levels. Additionally, if TV One is unable to negotiate
for participation in cable alternatives, such as streaming video
services, it will not be able to offset declines in traditional
cable subscriptions and viewership. These risks are only modestly
tempered by Urban One's good ratings positions in most of its radio
markets.
S&P said, "The stable outlook reflects our expectation that Urban
One will generate around $50 million of FOCF over the next year,
which will be primarily used to reduce debt leverage to the mid-6x
area.
"We could lower the rating if FOCF to debt declines to around
2%-3%, leading to an inability to reduce leverage sustainably below
7x through debt repayment. We believe this would make the capital
structure unsustainable. This could occur if revenue is weaker than
we expect due to increased competition in the company's key
markets, larger-than-expected audience rating declines at TV One,
economic weakness, or secular pressures.
"We view an upgrade as unlikely over the next year given the
company's limited FOCF relative to its debt burden, and elevated
leverage. However, we could raise the rating if FOCF to debt
approaches 10%, thus enabling the company to reduce leverage below
6x on a sustained basis. For this to occur, the company would need
to meaningfully outperform our base-case forecast and generate
consistent total revenue growth on an annualized basis."
VC BATON ROUGE: Voluntary Chapter 11 Case Summary
-------------------------------------------------
Debtor: VC Baton Rouge, LA, LLC
599 Highland Colony Parkway, Suite 120
Ridgeland, MS 39157
Business Description: Single Asset Real Estate
Chapter 11 Petition Date: December 14, 2018
Court: United States Bankruptcy Court
Southern District of Mississippi
Case No.: 18-04801
Judge: Hon. Neil P. Olack
Debtor's Counsel: Craig M. Geno, Esq.
Law Offices of Craig M. Geno, PLLC
587 Highland Colony Parkway
Ridgeland, MS 39157
Phone: 601-427-0048
Estimated Assets: $1 million to $10 million
Estimated Liabilities: $1 million to $10 million
The petition was signed by J.F. Davis, managing member of DL
Investments, LLC.
The petition does not include a list of the Debtor's unsecured
creditors.
A copy of the petition is available at PacerMonitor at no extra
charge at
https://www.pacermonitor.com/filings/100117093
VC MACON: Voluntary Chapter 11 Case Summary
-------------------------------------------
Debtor: VC Macon, GA, LLC
599 Highland Colony Parkway, Suite 120
Ridgeland, MS 39157
Business Description: Single Asset Real Estate
Chapter 11 Petition Date: December 14, 2018
Court: United States Bankruptcy Court
Southern District of Mississippi
Case No.: 18-04802
Judge: Hon. Neil P Olack
Debtor's Counsel: Craig M. Geno, Esq.
Law Offices of Craig M. Geno, PLLC
587 Highland Colony Parkway
Ridgeland, MS 39157
Phone: 601-427-0048
Estimated Assets: $1 million to $10 million
Estimated Liabilities: $1 million to $10 million
The petition was signed by J.F. Davis, managing member of DL
Investments, LLC.
The petition does not include a list of the Debtor's unsecured
creditors.
A copy of the petition is available at PacerMonitor at no extra
charge at https://www.pacermonitor.com/filings/100117098
WHITEWATER/EVERGREEN: EVX Buying Interests in Texas Wells for $8.5M
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Whitewater/Evergreen Operations, LLC ("WEO"), SWD, LLC, EFSWD I,
LLC, PH Grinders, LLC, and Six Pack Energy, LLC, ask the Bankruptcy
Court for the District of Colorado to authorize their Asset
Purchase and Sale Agreement with to EVX Midstream Partners, LLC and
EVX Eagle Ford Partners, LLC, in connection with the sale of their
100% working interests in (i) the Fowlerton Salt Water Disposal
Well situated in LaSalle County, Texas, (ii) the Cheapside Disposal
Well situated in Gonzales County, Texas, and (iii) Fashing Salt
Water Disposal Well situated in Atacosa County, Texas, for $8.5
million.
The Debtors are the owners of working interests in the Fowlerton
Well and Cheapside Well. WEO previously owned a 50% working
interest in the Fashing Well situated. It asserts in an adversary
proceeding that the conveyance of its interest in the Fashing Well
to HBC Whitewater, LLC by way of a Sheriff's Sale was a fraudulent
conveyance and is avoidable pursuant to 11 U.S.C. Section 548. HBC
disputes these allegations.
Pre-petition, on Feb. 14, 2014, the Debtors, together with SMG
Holdings, LLC, and several additional non-Debtor entities entered
into a Purchase and Sale Agreement ("PSA") with HBC, pursuant to
which HBC acquired a 50% working interest in each of the Cheapside
Well, Fowlerton Well and the Fashing Well, respectively. The PSA
provided for an adjustment to the value of the transaction value
Wells following the sale, consisting of a "true-up" amount to the
Sellers or to HBC based on the adjusted value of the Wells.
During the true-up measurement period, the value of the Wells
decreased substantially resulting in a large "true-up" amount owed
by the various sellers to HBC. On June 30, 2017, a hearing was
held before a panel of arbitrators. During the hearing, the
Debtors and SMG stipulated to the true-up amount owed to HBC, and
the arbitrators entered an award of the same, detailing the amount
owed by each seller entity to HBC pursuant to the PSA. The
arbitrators ruling was reduced to judgment in a lawsuit in Texas
initiated by HBC captioned HBC Whitewater, LLC v. EFSWD I, LLC et
al, DC-16-20848, which was filed in the 68th Judicial District
Court of Dallas County, Texas.
Following entry of the judgment against the Debtors and SMG in the
Tune Up and Collection Action, HBC aggressively pursued collection
efforts against the judgment debtors including the Debtors.
On May 1, 2018, HBC executed on its judgment and caused the Sheriff
of Atascosa County, Texas to conduct sale of WEO's interest in the
Fashing Well, at which time HBC credit bid $100,000 for the
interest in the Fashing Well. Once HBC acquired WEO's 50% interest
in the Fashing Well that HBC did not previously own, Whitewater
Resources, LLC ("WWR"), which is owned 50% by Ben Doud personally
and 50% by HBC and is the prior contractual operator of the Fashing
Well, continued to operate the Fashing Well. In August 2018, a
fire and explosion at the Fashing Well resulted in most of the
facility burning to the ground. The owners of WWR hold different
views as to the cause of the fire and oversight of the Fashing
Well.
HBC further filed a second lawsuit on June 11, 2018 in Dallas
County, Texas against the Debtors and additional defendants,
including the managers and interest holders of the Debtors, in
Texas, Civil Action No. DC-18-02224, alleging claims for fraudulent
transfer, aiding and abetting and conspiracy, money had and
received, request for accounting, constructive trust, alter ego,
and punitive damages. To preserve the Debtors' assets and stay
further collection efforts against the Debtors while the Debtors
evaluated their legal rights, the Debtors filed their voluntary
petitions for relief under Chapter 11 of the Bankruptcy Code. The
Debtors intend in the course of their bankruptcy cases to sell
their interests in the Wells, pursue WEO's claim for recovery of
fraudulent conveyances, and propose a Plan to pay creditors.
Post-petition, the Debtors removed the True Up and Collection
Action and the HBC Fraudulent Transfer Adversary Proceeding to the
U.S. District Court for the District of Colorado, which then
transferred the cases to the Bankruptcy Court at Adversary
Proceeding Nos. 18-01288-KHT and 18-01237-KHT respectively. WEO
also filed an Adversary Proceeding seeking to recover the 50%
working interest or the value of the interest that WEO formerly
held in the Fashing Well, which was sold at Sheriff’s sale to
HBC, as a fraudulent conveyance, Adversary Proceeding No.
18-01216-KHT.
Post-petition, HBC has also filed a Motion to Appoint a Chapter 11
Trustee, and a Motion to Dismiss the Debtors' bankruptcy cases.
The Debtors have opposed both Motions, and these matters are
currently pending before the Court. PH, WEO, SWD, and EFSWD have
also filed proposed Plans of Reorganization which are currently
pending before the Court as well.
The Debtors, together with HBC and other owners of interests in the
Wells, have identified a proposed purchaser for 100% of the working
interests of the Wells.
The Debtors, HBC, and the other non-debtor co-owners of interests
in the Wells, have agreed to sell their respective ownership
interests in the Wells such that 100% of the working interests in
the Wells are proposed to be sold EVX, subject to Court approval
and free and clear of all liens, claims, interests and encumbrances
with respect to the sale of the Debtors' interests, in accordance
with the APA by and between the Debtors, SMG, CESWD 1, LLC, HBC,
HBC Cheapside, LLC, HBC Fowlerton, LLC, HBC Fashing, LLC, and EVX.
The APA provides, inter alia, that EVX will purchase 100% of the
working interests in the Cheapside Well, Fowlerton Well, and
Fashing Well, together with all rail permits and facilities
associated therewith and certain contracts and leases more fully
described in the APA. Any causes of action arising out of or
relating to the ownership or operation of the Wells prior to
closing, any insurance proceeds associated with the Fashing Well,
the claims asserted in the HBC Fraudulent Transfer Adversary
Proceeding, and the claims asserted in the Whitewater Fraudulent
Transfer Adversary Proceeding are all expressly excluded from the
contemplated sale set forth in the APA.
The total purchase price of the Wells proposed under the APA is
$8.5 million, with value allocated among the Wells as follows: (i)
Cheapside Well - $4 million; (ii) Fowlerton Well - $3.25 million;
and (iii) Fashing Well: $1.25 million.
As noted, although subject to litigation, the Debtors currently do
not own any interest in the Fashing Well. With respect to the
Cheapside Well and the Fowlerton Well, their respective ownership
interests and the corresponding gross purchase price amount
allocable to such working interests are as follows:
Cheapside Fowlerton
(total value: $4M) (total value: $3.25M)
WEO N/A (50%) $1,625,000
Six Pack (1%) $40,000 N/A
SMG (0.5%) $20,000 N/A
PH Grinders (0.5%) $20,000 N/A
SWD (0.5%) $20,000 N/A
EFSWD (33%) $1,320,000 N/A
The Seller Group (including interests of the Debtors and
Non-Debtors) are required under the APA to pay: (i) 100% of any
real property, personal property, and ad valorem taxes up to the
Closing Date and (ii) any cure costs for financial defaults under
executory contracts and unexpired leases in which the Debtors are
counter-parties where such contracts or leases are contemplated to
be assumed by the applicable Debtor and assigned to EVX at closing.
Any taxes attributable to the Debtors’ interests in the Wells
and cure claim allegations, if any, will be deducted from the
amounts set forth in the chart contained herein at closing.
The outside date for closing on the proposed transaction with EVX
is Jan. 15, 2018, subject to closing conditions set forth in the
APA, including, without limitation, entry of an Order approving the
sale of the Debtors' assets free and clear, and performance of
covenants by all Parties under the APA. At closing, funds in an
amount equal to the sale proceeds for the Debtors' interests in the
Wells, net of allowed costs, will be deposited into the registry of
the Bankruptcy Court and disbursed at later points in time in
accordance with further orders of the Bankruptcy Court. The
amounts attributable to the non-debtor sellers will be paid
directly to the holders of such interests at closing, subject to an
indemnification escrow totaling $425,000 in respect of the
non-Debtor Sellers' continuing indemnity obligations to EVX on a
post-closing basis. The Debt ors will have no continuing
indemnification obligations to EVX after closing.
The APA provides for the assignment to EVX at closing of certain
contracts and leases more fully described in the APA, including the
contracts listed in the Motion. The Debtors are not a party to
most of the contracts and for such non-debtor contracts section 365
would not apply. It is also the Debtors' position that certain
leases and agreements to be assigned at Closing are real property
interests and/or supplanted or replaced by a subsequent lease
agreement with Whitewater Resources, LLC, a non-debtor, and
therefore not executory contracts or unexpired leases of the
Debtors subject to assumption, assignment and/or rejection.
However, as time is of the essence in the Transaction and out of an
abundance of caution, to the extent the Debtors have an interest in
any of the contracts, agreement or leases to be assigned to EVX at
closing under the APA, and to the extent any of such contracts,
agreements or leases constitute executory contracts and/or
unexpired leases within the meaning of Section 365 of the
Bankruptcy Code, Debtors ask authorization to assume and assign
such executory contracts and unexpired leases to EVX at closing.
The Debtors do not believe they are in financial default under any
contract or lease to which they are a party that would need to be
cured. As such, the Debtors submit that, as applicable, any cure
amount is and should be set at $0. They will provide notice of the
Motion to all counter-parties to contracts and leases under the APA
such that counter-parties to contracts to which they are or may be
a party have an opportunity to object if they disagree with the
cure amount, the assumption and assignment of their contract or
lease under the APA, and failing which they should be deemed to
have consented to both.
For purposes of complete disclosure, contracts and leases under the
APA, together with all amendments or supplements from time to time
thereto, include the following:
a) Salt Water Disposal Lease Agreement dated Nov. 15, 2013, by
and between Windermere Energy, LLC and Whitewater/Evergreen
Operations;
b) Ground Lease dated February 1, 2014 between Windermere
Energy, LLC and Whitewater/Evergreen Operations, LLC, which was
terminated and replaced by the Second Ground Lease dated May 23,
2018, by and between Windermere Energy, LLC and Whitewater
Resources, LLC;
c) Second Ground Lease dated May 23, 2018, by and between
Windermere Energy, LLC and Whitewater Resources, LLC, which Second
Ground Lease terminates and replaces the Ground Lease Dated
February 1, 2014;
d) Salt Water Disposal and Surface Facility Site Agreement,
dated as of April 15, 2011, by and between Robert D. Frey and Nancy
C. Frey, his wife, and Catarina Salt Water Disposal, LLC, a Texas
limited liability company, as amended by that certain Salt Water
Disposal and Surface Facility Site Agreement Amendment and
Ratification, dated as of April 29, 2013, by and between Robert D.
Frey and wife Nancy C. Frey and Catarina Salt Water Disposal, LLC,
and as assigned to Whitewater Resources, LLC by that certain
Assignment of Salt Water Disposal Lease and Amendment, dated July
16, 2013, by and between Catarina Salt Water Disposal, LLC and
Whitewater Resources, LLC, a Texas limited liability company, and
as assigned to Whitewater/Evergreen Operations, LLC by that certain
Assignment of Salt Water Disposal and Surface Facility Site
Agreement dated Dec. 31, 2013, by and between Whitewater Resources,
LLC and Whitewater/Evergreen Operations, LLC;
e) Salt Water Disposal Lease Agreement dated Aug. 30, 2012, by
and between Cheapside Hunter, LLC and Eagle Ford Water Disposal,
LLC, as assigned from Eagle Ford Water Disposal, LLC to Whitewater
Resources, LLC;
f) Master Services Agreement between ConocoPhillips Company
and Whitewater Resources, LLC dated Aug. 1, 2014, and Waste Order
between ConocoPhillips Company and Whitewater Resources, LLC
effective 10/12/2018; and
g) Master Waste, Recycling and Transportation Services
Contract between Marathon Oil EF LLC and Whitewater Resources, LLC
dated Jan. 27, 2014, and Job Order dated Feb. 3, 2014 pursuant
thereto; provided, however, that SWD Operator received a notice
letter dated Sept. 17, 2018, in which Marathon Oil Company notified
SWD Operator of its intent to terminate the Master Waste, Recycling
and Transportation Services Contract dated Jan. 27, 2014 upon
expiration of the related Job Order on Dec. 31, 2018.
In addition, the Debtors are parties to that certain Facilities
Operating Agreement dated Feb. 14, 2014, by and among HBC
Whitewater LLC, EFSWD I, LLC, CESWD I, LLC, SWD, LLC, Six Pack
Energy, LLC, PH Grinders, LLC, SMG Holdings, LLC,
Whitewater/Evergreen Operations, LLC, HBC Cheapside LLC, HBC
Fashing LLC, HBC Fowlerton LLC, Whitewater Resources, LLC, Tony
Markve, CNR Operations, LLC, and Clayton Reaser. Under the APA, it
is a condition to Closing of the Transaction by EVX, that such
Operating Agreement be terminated. The parties to the APA and the
Transaction Support Agreement have agreed to the termination of the
Operating Agreement in accordance with the APA. If Closing occurs,
the Debtors will not need the Operating Agreement because EVX is
buying 100% of the working interests in the subject SWDs and thus
Debtors request authorization to terminate the Operating Agreement
on or before Closing.
In connection with the sale of the Wells, in order to provide
certain protections to EVX in light of the various controversies
among the Debtors, HBC and other non-Debtor parties, which is a
condition to EVX's willingness to enter into and close the
Transaction under the APA, EVX has demanded and the parties have
agreed to support the sale of the Wells in accordance with a
Transaction Support and Release Agreement ("TSA") by and between
the Debtors, SMG, CESWD 1, LLC, HBC, HBC Cheapside, LLC, HBC
Fowlerton, LLC, HBC Fashing, LLC, WWR, the other unitholders and
managers party thereto, and EVX. The Debtors are releasing any
claims against the Buyer Released Parties and the Buyer Released
Properties to recover the value of such interest.
In the event of the termination of the APA, the TSA will also
terminate. Upon termination of the TSA, all parties are relieved
of any further obligations under the TSA, but the termination will
not release any liability that may exist for material breaches of
the TSA that occurred prior to its termination.
Pursuant to Bankruptcy Rules 6004(h), the Debtors ask a waiver of
any stay of the effectiveness of the Sale Order(s).
A copy of the APA attached to the Motion is available for free at:
http://bankrupt.com/misc/Whitewater-Evergreen_Operations_164_Sales.pdf
EVX can be reached at:
EVXMIDSTREAM PARTNERS, LLC
811 Louisiana Street, Suite 2500
Houston, Texas 77002
EVX EAGLE FORD PARTNERS, LLC
811 Louisiana Street, Suite 2500
Houston, Texas 77002
About Whitewater/
Evergreen Operations
Whitewater/Evergreen Operations, LLC owns 50% interest in Fowlerton
Salt Water Disposal Well. EFSWD 1 has 43% ownership interest in
Cheapside Salt Water Disposal Well. SWD, LLC has 37% ownership
interest in EFSWD 1.
Whitewater/Evergreen Operations, LLC, (Bankr. D. Colo. Case No.
18-14535), SWD, LLC, (Bankr. D. Colo. Case No. 18-14537) and EFSWD
1, LLC (Bankr. D. Colo. Case No. 18-14542) filed voluntary
petitions seeking relief under Chapter 11 of the Bankruptcy Code
on
May 24, 2018. Another affiliate, PH Grinders, LLC, filed for
Chapter 11 (Case No. 18-14696) on May 30, 2018. The petitions were
signed by Ben R. Doud, as their manager.
The proceedings are jointly administered under
Whitewater/Evergreen's case. The cases are assigned to the Hon.
Kimberley H. Tyson.
Whitewater/Evergreen Operations disclosed $8 million in assets
against $11.6 million in liabilities as of the bankruptcy filing.
Lee M. Kutner, Esq., at Kutner Brinen, P.C., serves as the Debtors'
counsel.
WILSON LAND: Mentor Industrial Buying Mentor Vacant Land for $10K
-----------------------------------------------------------------
Wilson Land Properties, LLC, asks the U.S. Bankruptcy Court for the
Northern District of Ohio to authorize the sale of the vacant land
on Hamilton Drive in Mentor, Ohio to Mentor Industrial Development,
LLC for $10,000.
The Debtor proposes to land. The land is 'a devil strips,' that
is, the small strip between public and private land. The Debtor
proposes to sell the estate's interest in the real estate for
$10,000 on the terms and conditions set forth in the offer to
purchase from the Buyer.
The Buyer has an interest in the land because it owns adjacent
land. It has no connection to the Debtor other than it purchased
adjacent land from an Osborne entity.
The parties believe that the sale price represents a value in
excess of fair market value for the property. The Buyer is willing
to pay more than fair market value because it owns adjacent land.
There are two interests in this real estate as set forth in the
attached Commitment but it is in the best interest of the estate
that the property be sold free and clear of their interests. Said
interests as set forth in the Commitment.
In order to provide adequate protection of any interests that any
of those parties may have, the Buyer will deposit the sale proceeds
into the Debtor's DIP account and Debtor will disburse from the
sale proceeds an amount sufficient to pay the real estate taxes in
full. The Debtor will hold the amount of proceeds, net of the
amount used to pay real estate taxes pending further order of the
Court. All other interests in the parcel will be transferred to
the net proceeds for distribution pursuant to a later order of the
Court, in accordance with the respective rights and priorities of
the holders of any interests in the parcel.
A copy of the Commitment attached to the Motion is available for
free at:
http://bankrupt.com/misc/WILSON_LAND_75_Sales.pdf
About Wilson Land Properties
Based in Mentor, Ohio, Wilson Land Properties, LLC, is the owner of
51 real estate properties having a total estimated value of $4.54
million. Wilson Land Properties, LLC, based in Mentor, OH, filed a
Chapter 11 petition (Bankr. N.D. Ohio Case No. 18-10514) on Jan.
31, 2018. In the petition signed by Richard M Osborne, managing
member, the Debtor disclosed $4.54 million in assets and $43.23
million in liabilities. The Hon. Arthur I. Harris presides over
the case. Glenn E. Forbes, Esq., at Forbes Law LLC, serves as
bankruptcy counsel.
XEROX CORP: S&P Lowers Long-Term ICR to 'BB+', Off CreditWatch Neg.
-------------------------------------------------------------------
S&P Global Ratings is lowering its long-term issuer credit rating
on Xerox Corp. to 'BB+' from 'BBB-' and are removing all of its
ratings on the company from CreditWatch, where S&P placed them with
negative implications on Oct. 24, 2018.
S&P said, "At the same time, we are lowering our short-term rating
on Xerox to 'B' from 'A-3' and our debt issue-level ratings to
'BB+' from 'BBB-', and assigning our '3' recovery rating to the
company's approximately $5.2 billion of unsecured senior debt
outstanding. We are assigning our 'BB+' issue-level rating and '3'
recovery rating to Xerox's $1.8 billion unsecured revolver expiring
in August 2022.
"The downgrade reflects our belief that Xerox will face operational
uncertainty and elevated execution risk amid difficult industry
conditions over the next 12-24 months following revenue declines
and market share losses prior to its new product launches in 2017.
We previously expected the company's revenue declines to abate by
the end of 2018 and anticipated that it would be on a growth
trajectory in 2019. However, we now believe that the company's
business challenges will persist beyond 2018 and expect that it
will face increased operational risk arising from the limited
growth prospects in its core A3 multi-function printer (MFP)
markets, elevated competition as it expands its product categories,
and uncertainty related to its recent senior management turnover.
We believe Xerox's uncertain business strategies and S&P-adjusted
leverage rising and sustaining above 2x no longer support business
and financial risk profiles that are commensurate with an
investment-grade rating. S&P Global has not reviewed Xerox
management's new strategic and operational plans for 2019.
"The stable outlook on Xerox reflects our expectation that the
company will continue to face operational and business challenges.
However, we do not believe that its position in its core printer
markets will deteriorate materially and anticipate that its
meaningful recurring revenue base will provide it with stable cash
flow generation over the next 12-24 months. This should allow Xerox
to fund its current product and printer market expansions and
shareholder returns while maintaining S&P adjusted leverage in the
low 2x area and a FOCF-to-debt ratio in the mid-30% area.
"We could lower our rating on Xerox if the company engages in
strategic alternatives--including a significant restructuring--if
its pursues large-scale acquisitions, or if its adopts a more
aggressive capital allocation policy, including shareholder
returns, that causes its leverage to approach 3x or if FOCF-to-debt
ratio to decline below 25%. We could also downgrade the company's
if its competitive position weakens further such that it breaches
the aforementioned thresholds.
"While unlikely over the next 12 months because of its operational
challenges, we would consider upgrading Xerox over the long term if
there is evidence of sustained operational improvements and
business stabilization and the company establishes a track record
of increasing its revenue over a multi-year period while
maintaining leverage of 2x or lower."
XPLORNET COMMUNICATIONS: S&P Retains B Debt Rating Amid Loan Upsize
-------------------------------------------------------------------
S&P Global Ratings said that Xplornet Communications Inc.'s
(B-/Stable/--) upsizing of the company's term loan B will not
affect its issue-level or recovery ratings on the loan. Xplornet is
upsizing the loan by US$25 million to US$432.5 million and
increasing its revolver to US$70 million from US$50 million. The
upsizing is for the company to fund its growth strategy.
S&P said, "Our 'B' issue-level rating (one notch higher than the
issuer credit rating) and '2' recovery rating on the term loan are
unchanged; however, we have revised our rounded estimate on the
substantial (70%-90%) recovery on the term loan to 70% from 75%.
The issue and recovery ratings on the company's revolving facility
and notes remain unchanged."
The upsizing means that the term loan debtholders now have to share
a reduced enterprise value leading to a lower recovery estimate.
Should the company pursue more add-ons, S&P would likely revise its
recovery rating on the debt to below 70%, therefore meaningful
(50%-70%) recovery, leading it to lower its the issue-level rating
on the debt to 'B-' (the same as the issuer credit rating).
RATINGS LIST
Xplornet Communications Inc.
Issuer credit rating B-/Stable/--
Ratings Unchanged/Recovery Estimate Revised
To From
Issue-level rating B B
Recovery rating 2(70%) 2(75%)
ZLOOP INC: Denial of J. Boston, JBR Bid for Directed Verdict Upheld
-------------------------------------------------------------------
The North Carolina Court of Appeals affirms the trial court's
denial of Defendants' motions for directed verdict and judgment
notwithstanding the verdict (JNOV) in the case captioned KYLE BUSCH
MOTORSPORTS, INC., Plaintiff, v. JUSTIN BOSTON, INDIVIDUALLY AND
JUSTIN BOSTON RACING, LLC, Defendants, No. COA18-426 (N.C. App.)
Defendants Justin Boston and Justin Boston Racing, LLC appeal from
a judgment following a verdict in which the jury found defendants
liable to Kyle Busch Motorsports, Inc. for $442,561.20 in damages
resulting from a breach of contract. On appeal, defendants argue
that the trial court erred in denying their motions for directed
verdict and judgment notwithstanding the verdict because plaintiff
failed to present evidence of direct damages. The Court disagrees.
It is well-established that "[t]he elements of a claim for breach
of contract are (1) existence of a valid contract and (2) breach of
the terms of that contract." In the order on the final pretrial
conference, the parties stipulated that defendants and KBM entered
into a valid contract. Therefore, the only issues left for the
jury's determination were whether defendants breached the contract,
and, if so, what the appropriate measure of damages were resulting
from said breach.
In the instant case, the contract was properly admitted into
evidence, along with a copy of the notice of breach and notice of
termination, both of which were addressed to defendants at the
addresses provided for on the signature page of the contract. The
notices further indicate they were sent via "Certified Mail, Return
Receipt Requested," as required under the contract. During Justin
Boston's cross-examination, he admitted that ZLOOP, Inc. breached
the contract by failing to make payments and that he was
subsequently liable as a result.
Justin Boston’s testimony, in conjunction with the contract, is
more than sufficient evidence to submit the issue of breach of
contract, including whether Justin Boston had proper notice of the
breach, to the jury. Accordingly, the Court holds there was
sufficient evidence to support the denial of defendants' motions
for directed verdict on the breach of contract issue.
Further, because plaintiff presented evidence in the form of the
wire transfer to ZLOOP of the $462,500, testimony that the set offs
owed to Justin Boston were $19,938.80, as well as the pretrial
stipulations stating this transfer was a refund by KBM of monies
paid under the contract, the Court holds that there was sufficient
evidence to support the jury's award of $442,561.20 in damages, and
to deny defendants' motions for directed verdict.
Thus, the trial court properly denied defendants' motions for
directed verdict and JNOV.
A copy of the Court's Decision dated Nov. 20, 2018 is available at
https://bit.ly/2EjPtvy from Leagle.com.
Hamilton Stephens Steele & Martin, PLLC, by Rebecca K. Cheney, for
plaintiff-appellee.
Lovekin & Young, P.C., by Gary F. Young, for defendant-appellants.
About ZLOOP, Inc.
ZLOOP operates a proprietary, state of the art, 100% landfill free
eWaste recycling company headquartered in Hickory, North Carolina.
Founded in 2012, the Company offers eWaste recycling and data
destruction services through its facility in Hickory, NC.
ZLOOP, Inc., and two affiliates sought Chapter 11 protection
(Bankr. D. Del. Case No. 15-11660) on Aug. 9, 2015.
The Debtors tapped DLA Piper LLP as counsel.
As of the Petition Date, the Debtors' unaudited consolidated
balance sheet reflect total assets of approximately $25 million,
including the land and improvements, but excluding certain
commodity inventories that are the output of eWaste recycling, and
total liabilities of approximately $32 million.
The U.S. trustee overseeing the Debtors' Chapter 11 cases on Sept.
2, 2015, appointed Recycling Equipment Inc., E Recycling Systems
LLC and Carolina Metals Group to serve on the official committee
of unsecured creditors. The committee is represented by Cole
Schotz P.C.
*********
Monday's edition of the TCR delivers a list of indicative prices
for bond issues that reportedly trade well below par. Prices are
obtained by TCR editors from a variety of outside sources during
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then-ending.
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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
Troubled Company Reporter is a daily newsletter co-published
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Copyright 2018. All rights reserved. ISSN: 1520-9474.
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*** End of Transmission ***