Sometime in late August 2008, Daniel Warsowick, on behalf of ALF, called Brian Welcker, who represented RT Jedburg, to inform him that ALF did not expect to complete the necessary construction by the Work Deadline. 2 As noted, the Agreed Order provided that ALF must "complete all of the work that is required to obtain the CO for the Premises by August 31, 2008" (the "Work Deadline") and that ALF "have the CO for the Premises issued to it by October 31, 2008" (the "CO Deadline"). Upon entry of the Agreed Order, the Debtor resumed construction on the Premises in an effort to fulfill its obligations under the Cure Provision and ultimately obtain a permanent certificate of occupancy (the "CO") for the manufacturing building. The Claim shall be reserved for and paid in the same manner as all Class 4 unsecured claims are reserved for and paid under the Plan except as modified by the Order confirming the Plan.Īgreed Order ¶ 5 (emphasis added).
To protect RT Jedburg from the consequences of ALF failing and in the event that ALF fails (i) to complete all of the work that is required to obtain the CO for the Premises by Augand/or (ii) to have the CO for the Premises issued to it by October 31, 2008, RT Jedburg shall have an allowed Class 4 unsecured claim in the amount of $8 million (the "Claim").
American lafrance bankrupt code#
The CO may be subject to conditions imposed by Berkeley County and as allowed by the 2003 International Building Code Chapter 1 Paragraph 110.2 and 110.3. ALF shall be required to receive the CO from Berkeley County no later than October 31, 2008. The Cure Provision provided as follows: ALF shall be required to have completed all work that is required to obtain a permanent Certificate of Occupancy ("CO") permitting installation of equipment and furnishings and operation and occupancy of the Premises by no later than August 31, 2008. Generally, the purpose of the Cure Provision was to ensure that ALF completed its construction obligations with respect to the manufacturing building on the Premises. To resolve the dispute between the parties concerning Lease assumption, the parties negotiated the terms of a stipulation (the "Agreed Order") pursuant to which the Debtor was authorized to assume the Lease, subject to certain "assumption cure requirements" (the "Cure Provision"). RT Jedburg filed its objection to Plan confirmation and to the Debtor's assumption of the Lease, asserting that the Debtor had not cured its defaults under the Lease. Pursuant to its Third Amended Plan of Reorganization (the "Plan"), the Debtor moved to assume the Lease. ALF hired various contractors to construct these additions, but when ALF later defaulted on its payment obligations, work on the Premises ceased and the contractors filed various mechanic's liens against the Premises. The Lease required ALF to construct certain additions inside a building on the Premises that was specifically designed to facilitate the manufacture, assembly, and painting of emergency and commercial vehicles. The Lease was executed on or about Augand amended on January 26, 2007.
Before the Petition Date, ALF and RT Jedburg entered into a lease agreement (the "Lease") under which RT Jedburg agreed to lease to ALF two industrial buildings located in Summerville, South Carolina (collectively, the "Premises"). On Janu(the "Petition Date"), ALF filed a voluntary petition for relief under chapter 11 of title 11 of the United States Code (the "Bankruptcy Code"). For the reasons set forth below, the Court will deny the Motion and will disallow the Claim. RT Jedburg filed a motion for summary judgment (the "Motion") asking the Court to overrule the objection. BRENDAN LINEHAN SHANNON, Bankruptcy Judge.īefore the Court is an adversary proceeding initiated by American LaFrance, LLC ("ALF" or the "Debtor") primarily to resolve its objection to the $8 million claim (the "Claim") filed by RT Jedburg Commerce Park, LLC ("RT Jed-burg").
0 kommentar(er)
