rbk Doc#237 Filed 03/22/18 Entered 03/22/18 15:08:39 Main Document Pg 1 of 4

Transcription

1 rbk Doc#237 Filed 03/22/18 Entered 03/22/18 15:08:39 Main Document Pg 1 of 4 UNITED STATES BANKRUPTCY COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION In Re: BANKRUPTCY CASE NO. A'GACI, L.L.C rbk Debtor CHAPTER 11 LIMITED OBJECTION AND RESERVATION OF RIGHTS OF TCF EQUIPMENT FINANCE, A DIVISION OF TCF NATIONAL BANK TO DEBTOR'S PROPOSED CURE AMOUNT DUE TCF EQUIPMENT FINANCE, A DIVISION OF TCF NATIONAL BANK AS SET FORTH IN EXHIBIT A OF DEBTOR'S NOTICE OF (I) DEBTORS' REQUEST FOR AUTHORITY TO ASSUME AND ASSIGN CERTAIN EXECUTORY CONTRACTS AND UNEXPIRED LEASES, AND (II) DEBTOR'S PROPOSED CURE AMOUNTS (DOCKET #198) TO THE HONORABLE RONALD B. KING, UNITED STATES BANKRUPTCY JUDGE: COMES NOW TCF EQUIPMENT FINANCE, A DIVISION OF TCF NATIONAL BANK ( TCF ) and files this, its Limited Objection and Reservation of Rights in response to A'Gaci LLC's ( DEBTOR ) proposed cure amount due TCF as set forth in the Notice of (I) DEBTOR'S Request for Authority to Assume and Assign Certain Executory Contracts and Unexpired Leases, and (II) DEBTOR'S Proposed Cure Amounts (Docket #198), and in support would show as follows: 1. TCF is the Lessor of certain computer equipment under lease to DEBTOR pursuant to that one certain Master Lease Agreement dated October 10, 2016 originally entered into by and between Jules & Associates, Inc. and A'GACI, LLC, which Master Lease Agreement, as revised pursuant to two written Addendums (designated as Revised Addendum A and Addendum B ) and a written Revision of the Rental Payment Amounts, each dated November 8, 2016, was subsequently assigned to TCF by Jules & Associates, Inc. by written Assignment of Lease Without Recourse dated November 10, The computer equipment the subject of the LEASE AGREEMENT is attached to the Master Equipment Lease Agreement in that one certain Lease Schedule incorporated into and made a part of the Master Lease Agreement. 3. For purposes of this Objection, the original Master Lease Agreement, the Lease Schedule, the two written Addendums and the written Revision of the Rental Payment Amounts 1

2 rbk Doc#237 Filed 03/22/18 Entered 03/22/18 15:08:39 Main Document Pg 2 of 4 shall be collectively referred to as the LEASE AGREEMENT and is attached collectively to this Objection as Exhibit A. 4. The Written Assignment of Lease Without Recourse from Jules & Associates, Inc. to TCF shall hereinafter be referred to as the ASSIGNMENT and is attached to this Objection as Exhibit B. 5. As a result of the ASSIGNMENT, TCF is the present owner and holder of the LEASE AGREEMENT and the Party entitled to receive the monthly lease payments, each in the revised amount of $11,718.46, as well as the entity entitled to enforce the obligations of DEBTOR under the LEASE AGREEMENT. 6. DEBTOR, in its Notice of (I) Debtor's Request for Authority to Assume and Assign Certain Executory Contracts and Unexpired Leases, and (II) Debtor's Proposed Cure Amounts (Docket #198) (hereinafter THE NOTICE ), has acknowledged the existence of the LEASE AGREEMENT under line item 94 of Exhibit A (Cure Amount Schedule) attached to THE NOTICE. However, DEBTOR has not identified any cure amount payable to TCF under the terms of the LEASE AGREEMENT. 7. TCF acknowledges that all the monthly lease payments due TCF under the LEASE AGREEMENT have been timely paid and thus, from that standpoint, there is no cure amount presently due as a result of past due lease payments. 8. TCF's Objection, however, relates to the Attorney's fees and expenses which TCF has been compelled to incur, has incurred and will no doubt be required to be incurred in the future in following this complex Chapter 11 proceeding to a conclusion on behalf of TCF. To date, those attorney's fees and expenses stand at $3, but as the case progresses, additional fees and expenses will, no doubt, be incurred. 9. TCF contends that attorney's fees and expenses incurred and to be incurred by the undersigned constitute a cure amount payable by DEBTOR pursuant to 11 USC 365 (b), as those amounts are presently a contractual obligation of the DEBTOR under the LEASE AGREEMENT and will continue to be the obligation of the DEBTOR, whether the LEASE AGREEMENT is sought to be assumed and assigned to a third party or simply sought to be assumed by DEBTOR. While no demand has been made upon the DEBTOR to pay the fees and expenses thus incurred due to the Chapter 11 filing, those amounts nevertheless represent an amount due from DEBTOR pursuant to of the LEASE AGREEMENT, to make TCF whole. 2

3 rbk Doc#237 Filed 03/22/18 Entered 03/22/18 15:08:39 Main Document Pg 3 of By the filing of this Objection, TCF is simply requesting that the DEBTOR and the Court acknowledge the claim of TCF for its reasonable and necessary attorney's fees and expenses and that those fees and expenses constitute a contractual obligation of DEBTOR to TCF and payable as a cure in the event the LEASE AGREEMENT is sought to be assumed by DEBTOR. TCF further states that the full amount of its cure amount will not be known until a later date and therefore further requests that TCF not be required to settle on a cure amount until such time as the total claim can be ascertained. 11. TCF contends that any Order approving an assumption of the LEASE AGREEMENT provide that the DEBTOR shall be liable for and pay any reasonable and necessary attorney's fees and expenses of TCF as they exist on this date, as well as any future reasonable and necessary attorney's fees and expenses incurred by TCF and properly documented by TCF, to protect its interests and due under the LEASE AGREEMENT. 12. TCF reserves the right to amend or supplement this Limited Objection to provide a final total of attorney's fees and costs due from DEBTOR before the LEASE AGREEMENT may be assumed. WHEREFORE, TCF respectfully requests that the Court sustain this Limited Objection, recognize payment of the final cure amount as a condition precedent to the assumption of the LEASE AGREEMENT by DEBTOR and provide TCF with such other and further relief to which it may be entitled. By: Respectfully submitted, E. PHILLIPS LEGAL, P.C. /s/ ED PHILLIPS, JR. ED PHILLIPS, JR. State Bar No West Bandera, Suite Boerne, Texas (210) Telephone (830) Facsimile Attorney for TCF EQUIPMENT FINANCE, A DIVISION OF TCF NATIONAL BANK 3

4 rbk Doc#237 Filed 03/22/18 Entered 03/22/18 15:08:39 Main Document Pg 4 of 4 CERTIFICATE OF CONFERENCE I state and confirm that I attempted to contact Ian Peck on two (2) occasions by phone on March 20, 2018 to discuss this Objection. I received a call back from David Staab on March 21, 2018 but was unavailable to take his call. I called Mr. Staab back on March 21, 2018 and left a call back request. As of the filing of this Objection, I have been unable to speak with either Mr. Peck or Mr. Staab. BY: /S/ ED PHILLIPS, JR. ED PHILLIPS, JR. CERTIFICATE OF SERVICE I, ED PHILLIPS, JR., do hereby certify that on this 22 nd day of March, 2018, a true and correct copy of this Limited Objection was transmitted electronically using the CM/ECF filing system for filing and transmittal of a notice of electronic filing via a PDF document to those parties listed on the Court s Notice of Electronic Filing and, additionally, unless noted below, by transmission to the following: Ian T. Peck and David L. Staab Haynes and Boone, LLP 2323 Victory Avenue, Suite 700 Dallas, TX ian.peck@haynesboone.com david.staab@haynesboone.com Counsel for the Debtor W. Steven Bryant Locke Lord LLP 600 Congress Avenue, Suite 2200 Austin, TX sbryant@lockelord.com Counsel for Chase Richard Lauter and Emily S. Chou Lewis Brisbois Bisgaard & Smith LLP 2100 Ross Avenue, Suite 2000 Dallas, TX richard.lauter@lewisbrisbois.com emily.chou@lewisbrisbois.com Counsel to the Committee Kevin Epstein 615 E. Houston Street, Suite 533 San Antonio, TX Counsel for the Office of the U.S. Trustee For the Western District of Texas Via Regular Mail Steve A. Peirce Norton Rose Fulbright, (US) LLP 300 Convent, Suite 2100 San Antonio, TX steve.peirce@nortonrosefulbright.com Counsel to BOA BY: /S/ ED PHILLIPS, JR. ED PHILLIPS, JR. 4

5 Agreement Pg 1 of 13

6 Agreement Pg 2 of 13

7 Agreement Pg 3 of 13

8 Agreement Pg 4 of 13

9 Agreement Pg 5 of 13

10 Agreement Pg 6 of 13

11 Agreement Pg 7 of 13

12 Agreement Pg 8 of 13

13 Agreement Pg 9 of 13

14 Agreement Pg 10 of 13

15 Agreement Pg 11 of 13

16 Agreement Pg 12 of 13

17 Agreement Pg 13 of 13

18 rbk Doc#237-2 Filed 03/22/18 Entered 03/22/18 15:08:39 Exhibit Assignment Pg 1 of 4

19 rbk Doc#237-2 Filed 03/22/18 Entered 03/22/18 15:08:39 Exhibit Assignment Pg 2 of 4

20 rbk Doc#237-2 Filed 03/22/18 Entered 03/22/18 15:08:39 Exhibit Assignment Pg 3 of 4

21 rbk Doc#237-2 Filed 03/22/18 Entered 03/22/18 15:08:39 Exhibit Assignment Pg 4 of 4