18-50049-rbk Doc#229 Filed 03/22/18 Entered 03/22/18 11:15:53 Main Document Pg 1 of 4 Patrick J. Schurr State Bar No. 17853530 email: patrick.schurr@solidcounsel.com SCHEEF & STONE, L.L.P. 2600 Network Boulevard Suite 400 Frisco, Texas 75034 Telephone: 214.472.2100 Telecopier: 214.472.2150 ATTORNEYS FOR THYSSENKRUPP ELEVATOR CORPORATION IN THE UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION IN RE: A GAGCI, L.L.C., CASE NO. 18-50049-rbk-11 Debtor. OBJECTION BY THYSSENKRUPP ELEVATOR CORPORATION TO PROPOSED CURE AMOUNTS UNDER 11 U.S.C. 365(b) 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 TO THE HONORABLE JUDGE3 OF SAID COURT: COMES NOW THYSSENKRUPP ELEVATOR CORPORATION and in support thereof, state as follows: I. BACKGROUND 1. On January 9, 2018 (the Petition Date ), the Debtor filed a voluntary petition for relief under chapter 11 of Title 11 of the United States Code (the Bankruptcy Code ) with the United States Bankruptcy Court for the Western District of Texas, San Antonio Division (the Court ). 2. Pursuant to written agreements with the Debtor (the Agreements ) ThyssenKrupp OBJECTION TO CURE AMOUNT - PAGE 1 N:\pschurr\thyssenkrupp\objection.wpd
18-50049-rbk Doc#229 Filed 03/22/18 Entered 03/22/18 11:15:53 Main Document Pg 2 of 4 Corporation ( ThyssenKrupp ) maintain the elevators for the Debtor s locations are located at the La Plaza Mall (McAllen, Texas) and in Hatillo, Puerto Rico (collectively, the Locations ). 3. The Agreements for the Locations constitute executory contracts as said term is used in 11 U.S.C. 365(b)(3). 4. Pursuant to the March 1, 2018 Order Approving Sale and Bidding Procedures in Connection with Sale of Assets of the Debtor and Granting Related Relief [Doc. No. 188] (the Sale Procedures Order ) and the Cure Notice, the Debtor has the authority to assign the Agreements Leases and to establish the proper cure amounts pursuant to 11 U.S.C. 365(b) (the Cure Amounts ) required to be paid in connection with the assumption or assumption and assignment of the Agreements. 5. According to the Cure Notice, the Debtor attempts to assume and assign the Agreements with a Cure Amount of $0.00. II. 11 U.S.C. 365(b) CURE AMOUNT OBJECTION 6. The Debtor is required to, among other things, cure all defaults under the Agreements and compensate ThyssenKrupp for actual pecuniary loss as a result of such defaults. 11 U.S.C. 365(b)(1). As of the date of the filing of this Objection but exclusive of (i) interest, (ii) any amounts that may become outstanding hereafter, and (iii) any Unliquidated Claims 1, the proper Cure Amount for the Agreements are (a) the amounts set forth in the ThyssenKrupp proof of claim filed on January 17, 2018 (Claim No. 11) in the amount of $15,331.98 (attached hereto as Exhibit A 1 The term Unliquidated Claims means (i) accrued but as yet unbilled adjustments to rentals, including common area maintenance charges and taxes, and (ii) the Debtor s indemnity obligations (including, without limitation, accrued obligations for personal injury or negligence claims against the Debtor that could be asserted against ThyssenKrupp) under the Agreements. OBJECTION TO CURE AMOUNT - PAGE 2 N:\pschurr\thyssenkrupp\objection.wpd
18-50049-rbk Doc#229 Filed 03/22/18 Entered 03/22/18 11:15:53 Main Document Pg 3 of 4 and incorporated herein); plus (b) the current postpetition due and owing under the Agreements in the amount of $5,123.80 (attached hereto as Exhibit B and incorporated, or in the aggregate, the sum of $20,455.78 (the Proper Cure Amount ). 7. In addition, pursuant to 11 U.S.C. 365(b) and the terms of the Agreements, ThyssenKrupp is entitled to interest and a reasonable award for attorneys fees that have been incurred by ThyssenKrupp as a result of the Debtor s bankruptcy case and the proposed assumption of the Agreements, in the amount of $2,000. See, e.g., Travelers Cas. & Su. Co. of Am. v. Pacific Gas and El. Co., 127 S. Ct. 1199, 1203 (2007) (holding that a party is entitled to be reimbursed for its attorneys fees when there exists an enforceable contract allocating attorneys fees ). 8. Provided that this objection is sustained and all other relief requested herein is granted, ThyssenKrupp shall waive its right to assert a claim for interest on the Cure Amount. WHEREFORE, THYSSENKRUPP ELEVATOR CORPORATION respectfully requests that this Court enter an order: a. Sustaining this objection; b. Establishing the Cure Amount as set forth hereinabove; c. Preserving ThyssenKrupp s rights, and maintaining the Debtor s liabilities, with respect to (i) any amounts that may become outstanding hereafter, and (ii) all Unliquidated Claims; and d. such other relief as is just and proper. OBJECTION TO CURE AMOUNT - PAGE 3 N:\pschurr\thyssenkrupp\objection.wpd
18-50049-rbk Doc#229 Filed 03/22/18 Entered 03/22/18 11:15:53 Main Document Pg 4 of 4 Respectfully submitted this the 22 nd day of March, 2018. SCHEEF & STONE, L.L.P. 2600 Network Boulevard Suite 400 Frisco, Texas 75034 Telephone: 214.472.2100 Telecopier: 214.472.2150 By: /s/ Patrick J. Schurr Patrick J. Schurr State Bar No. 17853530 Emil: patrick.schurr@solidounsl.com ATTORNEYS FOR THYSSENKRUPP ELEVATOR CORPORATION CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document was served on the parties listed below pursuant to the Notice dated March 9, 2018 (Document No. 198) and any parties requesting notice herein, via electronic means, on this the 22 nd day of March, 2018. /s/ Patrick J. Schurr (i) counsel for the Debtor, Ian T. Peck and David L. Staab, Haynes and Boone LLP, 2323 Victory Ave, Suite 700, Dallas, TX 75219, ian.peck@haynesboone.com, david.staab@haynesboone.com; (ii) counsel for Chase, W. Steven Bryant, Locke Lord LLP, 600 Congress Avenue, Ste. 2200, Austin, TX 78701, sbryant@lockelord.com; (iii) counsel to the Committee, Richard Lauter and Emily S. Chou, Lewis Brisbois Bisgaard & Smith LLP, 2100 Ross Ave., Suite 2000, Dallas, TX 75201, richard.lauter@lewisbrisbois.com, emily.chou@lewisbrisbois.com; (iv) counsel to BOA, Steve A. Peirce, Norton Rose Fulbright, (US) LLP, 300 Convent, Suite 2100, San Antonio, Texas 78205, steve.peirce@nortonrosefulbright.com; and (v) counsel for the Office of the United States Trustee for the Western District of Texas, Kevin Epstein, 615 E. Houston Street, Suite 533, San Antonio, Texas 78205. OBJECTION TO CURE AMOUNT - PAGE 4 N:\pschurr\thyssenkrupp\objection.wpd
18-50049-rbk Doc#229-1 Filed 03/22/18 Entered 03/22/18 11:15:53 Exhibit Pg 1 of 7 EXHIBIT "A" Page 1 of 7
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18-50049-rbk Doc#229-1 Filed 03/22/18 Entered 03/22/18 11:15:53 Exhibit Pg 7 of 7 EXHIBIT "A" Page 7 of 7
18-50049-rbk Doc#229-2 Filed 03/22/18 Entered 03/22/18 11:15:53 Exhibit Pg 1 of 1 MAINTENANCE INVOICE thyssenkrupp Elevator Corporation Attn: Accounts Receivable Dept. 2801 Network Blvd., STE 700 Frisco, TX 75034 INVOICE DATE: CUSTOMER #: JOB #: INVOICE #: PO #: SERVICE DATE: TERMS: TOTAL DUE: 2/1/2018 68636 US55894 3003681790 02/01/2018 TO 04/30/2018 IMMEDIATE $5,123.80 Page 1 of 1 BILL TO: ATTN: ACCOUNTS PAYABLE A'GACI LLC 12460 NETWORK BLVD STE 106 SAN ANTONIO TX 78249-3366 TO VIEW AND PAY ONLINE GO TO: USE THIS ENROLLMENT TOKEN: SHIP TO: A'GACI - LA PLAZA MALL 2200 S 10TH ST MCALLEN TX 78503-5437 https://thyssenkruppelevator.billtrust.com VDS VRX TPF ITEM QUANTITY DESCRIPTION EXTENDED AMOUNT CORPUS CHRISTI BRANCH This is a billing for the service period referenced above. C102US 2 Platinum Premiere - Full Maintenance, 24 Hour Callbacks Included - Escalator A'GACI - LA PLAZA MALL $3,895.18 C101US 1 Platinum Premiere - Full Maintenance, 24 Hour Callbacks Included - Elevator A'GACI - LA PLAZA MALL $1,112.93 AMOUNT $5,008.11 DISCOUNT $0.00 SUBTOTAL $5,008.11 SALES TAX $115.69 PLEASE PAY $5,123.80 For Service Related or General Questions, please call 361-299-0033. For Billing or Payment questions, please call (972) 963-5211. Goods or services covered by this invoice were produced in compliance with the requirements of the Fair Labor Standards Act of 1938, as amended. RETURN THIS PORTION WITH YOUR PAYMENT IN THE ENVELOPE PROVIDED WITH THE REMITTANCE ADDRESS VISIBLE thyssenkrupp Elevator Corporation Attn: Accounts Receivable Dept. 2801 Network Blvd., STE 700 Frisco, TX 75034 INVOICE DATE: CUSTOMER #: JOB #: INVOICE #: PO #: SERVICE DATE: TERMS: TOTAL DUE: 2/1/2018 68636 US55894 3003681790 02/01/2018 TO 04/30/2018 IMMEDIATE 5,123.80 A'GACI LLC Amount Enclosed: $ Payment Method REMIT PAYMENT TO: Personal Check Enclosed Money Order Enclosed Cashiers Check Enclosed Please Make Check Payment To: thyssenkrupp Elevator Corporation THYSSENKRUPP ELEVATOR CORPORATION PO BOX 933004 ATLANTA, GA 31193-3004 93300430036817900000000000000000000000005123804 EXHIBIT "B" Page 1 of 1