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U.s. BANKRUPTCY Court for the DISTRICT of DELAWARE, chapter 11 case. Debtor seeks authorization to use cash collateral as defined in Section 363 of the Bankruptcy Code. The debtor's last four digits of its employer tax identification number is: XXXXX 1317. A hearing has been held by the Court on June 27, 2012 to consider the relief sought in the Motion.
U.s. BANKRUPTCY Court for the DISTRICT of DELAWARE, chapter 11 case. Debtor seeks authorization to use cash collateral as defined in Section 363 of the Bankruptcy Code. The debtor's last four digits of its employer tax identification number is: XXXXX 1317. A hearing has been held by the Court on June 27, 2012 to consider the relief sought in the Motion.
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U.s. BANKRUPTCY Court for the DISTRICT of DELAWARE, chapter 11 case. Debtor seeks authorization to use cash collateral as defined in Section 363 of the Bankruptcy Code. The debtor's last four digits of its employer tax identification number is: XXXXX 1317. A hearing has been held by the Court on June 27, 2012 to consider the relief sought in the Motion.
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Attribution Non-Commercial (BY-NC)
Formats disponibles
Téléchargez comme PDF, TXT ou lisez en ligne sur Scribd
FOR THE DISTRICT OF DELAWARE Chapter 11 Cordillera Golf Club, LLC, 1 dba The Club at Cordillera, Case No. 12-11893 (CSS) Ref. Docket No. 9 Debtor. INTERIM ORDER (A) AUTHORIZING DEBTOR'S USE OF CASH COLLATERAL, (B) GRANTING ADEQUATE PROTECTION, AND (C) SCHEDULING FINAL HEARING PURSUANT TO BANKRUPTCY RULE 4001 Upon the motion (the "Motion")ofthe above-referenced debtor, as debtor-in- possession (the "Debtor"), seeking this Court's authorization pursuant to Sections 105, 361, 362 and 363 of the United States Bankruptcy Code, 11 U.S.C. 101 et ~ . ( t h e "Bankruptcy Code"), and Rules 2002, 4001 and 9014 of the Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules"), for the Debtor to use cash collateral, as such term is defined in Section 363 of the Bankruptcy Code ("Cash Collateral"), solely in accordance with the terms of this order(the "Interim Order"), upon which the Lenders have asserted perfected security interests and liens; and a hearing (the "Interim Hearing") having been held by the Court on June 27, 2012 to consider the relief sought in the Motion; and pursuant to Bankruptcy Rule 400 1, due and sufficient notice of the Motion and the relief sought at the Interim Hearing having been given by the Debtor to the Office of the United States Trustee, the United States Securities and Exchange Commission, the Office of the United States Attorney for the District of Delaware, the Internal 01:12244107.2 The Debtor in this chapter 11 case, and the last four digits of its employer tax identification number, is: XX- XXX 1317. The corporate headquarters address for the Debtor is 97 Main Street, Suite E202, Edwards, CO 81632. Revenue Service, the Debtor's twenty (20) largest unsecured creditors and counsel to the Lenders; and the Court having considered the offers of proof, evidence adduced, objections asserted and the statements of counsel at the Interim Hearing; and it appearing to the Court that granting the relief sought in the Motion on the terms and conditions herein contained is fair and reasonable and that entry of this Interim Order is in the best interest of the Debtor and its estate and creditors; and due deliberation and good cause has been shown to grant the relief sought in the Motion as modified herein: NOW, THEREFORE, A. Capitalized terms used, but not defined herein shall have the meaning set forth in the Motion. B. On June 26, 2012 ("Petition Date"), the Debtor filed a voluntary petition for relief under Chapter 11 ofthe Bankruptcy Code in this case (the "Case"), and it has continued with the management and operation of its businesses and properties as a debtor-in-possession pursuant to Sections 1107 and 1108 of the Bankruptcy Code. C. The Debtor asserts that, according to its books and records, as of the Petition Date, the aggregate principal amounts outstanding on the Alpine Loan and the Wilhelm Loan were approximately $12.7 million and $7.5 million, respectively. Each of the Lenders asserts a security interest in, among other things, Cash Collateral to secure their respective Loans. The Debtor asserts that the appraised value of the Real Property, in the aggregate, is $33,000,000 based upon the appraisal of Chrysalis Valuation Consultants LLC dated June 5, 2012 (the "Chrysalis Appraisal"). Neither Alpine nor Wilhelm stipulate to the Debtor's assertion in this regard, nor is the Court entering any findings with respect to such assertion by the Debtor. 01:12244107.2 2 01:12244107.2 D. The Debtor has requested immediate entry of this Interim Order pursuant to Bankruptcy Rule 4001 (b )(2) to meet expenses associated with the management of the Club, the Course, the Facilities and the Real Property including, without limitation, payroll, taxes, general maintenance costs and administrative expenses. E. Notice of the requested relief sought at the Interim Hearing was provided by the Debtor to: (a) the Office of the United States Trustee; (b) the Lenders; and (c) the Debtor's twenty (20) largest unsecured creditors. Given the nature of the relief sought the Court concludes that sufficient and adequate notice of the Interim Hearing has been given pursuant to Bankruptcy Rules 2002, 4001 (b) and (d) and 9014 and Section 102(1) ofthe Bankruptcy Code as required by Sections 361 and 363 of the Bankruptcy Code, and that, given the exigent circumstances presented by the Motion, no further notice of, or hearing on, the relief sought at the Interim Hearing and the relief granted herein is necessary or required. F. Consideration of the Motion constitutes a "core-proceeding" as defined in28 U.S.C. 157(b)(2)(A), (B), (D), (M) and (0). This Court has jurisdiction over this proceeding and the parties and property affected hereby pursuant to 28 U.S.C. 157 and 1334 and the Amended Standing Order of Reference from the United States District Court for the District of Delaware dated as of February 29, 2012. G. Under the circumstances, good, adequate and sufficient cause has been shown to justify entry of this Interim Order. Among other things, granting the relief set forth in this Interim Order will permit the Debtor to meet its expenses. 3 H. The Lenders have consented to the Debtor's use of Cash Collateral on an interim basis on the terms and conditions hereinafter set forth. NOW, THEREFORE, UPON THE RECORD OF THE PROCEEDINGS HERETOFORE HELD BEFORE THIS COURT WITH RESPECT TO THE MOTION, THE EVIDENCE ADDUCED AT THE INTERIM HEARING, AND THE STATEMENTS OF COUNSEL THEREAT, IT IS HEREBY ORDERED THAT: 1. Subject to the terms and conditions of this Interim Order, the Court hereby authorizes the Debtor's use during the period (the "Budget Period") beginning on the Petition Date and ending on the Expiration Date (as defined below in paragraph 5) of purported Cash Collateral for the disbursements set forth in the budget which is attached as Exhibit A hereto (the "Budget"), or in such greater amounts as Lenders may authorize and consent to from time to time. The expenditures authorized in the Budget shall include a 10% variance for each individual line item within the Budget Period (the "Budget Variance"). 2. During the interim period between the Petition Date and the final hearing on the Motion, the Debtor shall be authorized to make the expenditures set forth in the Budget, subject to the Budget Variance, and to provide the adequate protection to the Lenders hereinafter set forth; provided, however, that (a) nothing in this Interim Order shall constitute a determination by the Court regarding (i) the extent, if any, to which any asset of the Debtor may constitute "cash collateral" (as defined in section 363 of the Bankruptcy Code), (ii) the entitlement of any party to receive any form of adequate protection on a final basis or the adequacy of any such protection offered or proposed by the Debtor, (iii) the value of the Real Property or any other asset of the Debtor, or (iv) whether there exists any or sufficient equity 0 1:12244 107.2 4 cushion in relation to the Lenders' secured claims, and (b) the rights of all parties with respect to the foregoing matters set forth in clause (a) hereof are expressly reserved. 3. As adequate protection for, and to secure payment of, an amount equal to the aggregate diminution in the value of the purported Cash Collateral from the Petition Date as a result of the use thereof, the Debtor hereby grants to Alpine the following adequate protection: 01:12244107.2 a. A security interest in and lien upon (the "Alpine Replacement Lien"), all of the Debtor's now existing or hereafter acquired property of the same type as the Alpine Collateral, but specifically excluding avoidable transfer claims and recoveries and/or similar claims and recoveries pursuant to Sections 542 through 550, of the Bankruptcy Code. The Alpine Replacement Lien shall have the same validity and priority as Alpine's lien on the Alpine Collateral existing on the Petition Date. b. To the extent that the Alpine Replacement Lien proves insufficient to provide Alpine with adequate protection, an allowed superpriority administrative claim, pursuant to Bankruptcy Code section 507(b ), having priority over all other administrative claims (the "Alpine Administrative Claim"). c. The Alpine Replacement Liens shall be deemed valid, binding, enforceable, and perfected without the need for the recording of UCC financing statements or any other recordation or additional action by Alpine. 5 4. As adequate protection for, and to secure payment of, in an amount equal to the aggregate diminution in the value of the purported Cash Collateral from the Petition Date as a result of the use thereof, the Debtor hereby grants to Wilhelm the following adequate protection: 01:12244107.2 a. A security interest in and lien upon (the "Wilhelm Replacement Lien"), all of the Debtor's now existing or hereafter acquired property of the same type as the Wilhelm Collateral, but specifically excluding avoidable transfer claims and recoveries and/or similar claims and recoveries pursuant to Sections 542 through 550, ofthe Bankruptcy Code. The Wilhelm Replacement Lien shall have the same validity and priority as Wilhelm's lien on the Wilhelm Collateral existing on the Petition Date. b. To the extent that the Wilhelm Replacement Lien proves insufficient to provide Wilhelm with adequate protection, an allowed superpriority administrative claim, pursuant to Bankruptcy Code section 507(b ), having priority over all other administrative claims except the Alpine Administrative Claim, as to which it shall have the same priority as the Lenders' respective interests in the Collateral. c. The Wilhelm Replacement Liens shall be deemed valid, binding, enforceable, and perfected without the need for the recording of UCC financing statements or any other recordation or additional action by Wilhelm. 6 5. The rights of all parties in interest are hereby reserved with respect to the Final Hearing, including, without limitation, with respect to the matters identified in paragraph 2 hereof, and otherwise with respect to this proceeding, except as expressly set forth herein. Without limiting the generality of the foregoing: 0 I: 12244107.2 a. The Debtor may assert that any property is not subject to Lenders' asserted liens and any property may be used by the Debtor and its estate in the operation of its business and the administration of the case. Further, the Debtor, as well as any creditor's committee appointed in the Debtor's case or other creditors or parties-in- interest as may have standing under applicable law, reserve their rights to dispute that Lenders (or either of them) hold a valid, enforceable, perfected and/or unavoidable security interest in and/or liens upon the Cash Collateral or other Collateral or property, including the Real Property and/or the Personal Property, as well as any Cash Collateral derived from Debtor's business operations which is subject to the security agreements between Lenders and the Debtor; and nothing in the Motion or this Interim Order shall act to confirm, acknowledge or ratify the validity, perfection or amount of either Lender's pre-petition lien on any Collateral or other property, or either Lender's debt or claims, nor act as a waiver of the right of the Debtor to seek an order of this Court imposing additional security interests or liens on any Collateral or other property, whether senior or junior to Lenders' 7 01:12244107.2 liens, nor act as a waiver of any claims against Lenders, a waiver of rights under 11 U.S.C. 506(c), a "rollover" of pre-petition debt of Lenders to post-petition debt, the granting of relief from the automatic stay, nor to operate to divest the Debtor of any discretion in the formulation of a plan or administration of the estate or limit access to the Court to seek any relief under applicable provisions of law, including without limitation, with respect to the treatment of claims. b. Nothing in this Order shall limit or affect the right of either Lender to oppose on any available grounds any other or further use of Cash Collateral other than as set forth in this Interim Order, any attempt by the Debtor to place additional liens or security interests on any of the Collateral, or any other relief or order of this Court sought by the Debtor, including, without limitation, on the basis that the interests of such Lender are not being adequately protected. Further, nothing in this Order shall limit or affect the right of either Lender to seek relief from the automatic stay or such other relief in this proceeding as such Lender shall deem necessary or appropriate, including, without limitation, a transfer of venue of this proceeding to the District of Colorado, or to otherwise take such position on any matter raised in this proceeding as such Lender shall elect. 8 6. During the Budget Period, The Debtor shall provide to Alpine Bank, by and through counsel, within three (3) days following the end of each week, a report of all income received by the Debtor and all expenses paid by the Debtor during such week, formatted in line item form in a manner consistent with the Budget, and including a comparison of such actual results as against the Budget's projections. 7. The Debtor's authorization to use purported Cash Collateral pursuant to this Interim Order shall terminate on the earliest to occur of (each such occurrence being hereinafter referred to as a "Termination Event"):(a) July 27, 2012 (the "Expiration Date"); (b) the dismissal of the Case or the conversion of the Case to a case under Chapter 7 of the Bankruptcy Code; (c) the appointment or election of a trustee, examiner with expanded powers or any other representative with expanded powers; (d) the Debtor's deviation from any line item of the Budget by more than the Budget Variance during the Budget Period without the express consent of Alpine; (e) the occurrence of the effective date or consummation date of a plan of reorganization for the Debtor; (f) the entry of an order of this Court reversing, staying, vacating or otherwise modifying in any material respect the terms of this Interim Order; (g) the entry of a final order approving a superseding stipulation entered into by and between the Debtor and Lenders; or (h) the entry of a final order by this Court governing the use ofthe Cash Collateral. On and after the occurrence of a Termination Event specified in the Clauses (a) through (f) above, the Debtor shall cease using purported Cash Collateral, absent the written consent of any party claiming an interest in such Cash Collateral or further order of this Court. 8. The Debtor is authorized and directed to perform all acts and to make, execute and deliver any and all instruments as may be reasonably necessary to implement the terms and conditions of this Interim Order and the transactions contemplated hereby. 01:12244107.2 9 9. The provisions of this Interim Order shall be binding upon any trustee appointed during this Case or upon a conversion to a Case under Chapter 7 of the Bankruptcy Code, and any actions taken pursuant hereto shall survive entry of any order which may be entered converting the Case to a Chapter 7 case, or dismissing the Case, or any order which may be entered confirming or consummating any plan(s) of reorganization. 10. The terms ofthis Interim Order shall be valid and binding upon the Debtor, all creditors of the Debtor and all other parties in interest from and after the entry of this Interim Order by this Court. In the event this Court stays, modifies or vacates any of the provisions of this Interim Order following any further hearing, such modifications, stays or vacation shall not affect the rights of the Lenders granted pursuant to this Interim Order. 11. Notwithstanding any such stay, modification or vacation, any indebtedness, obligation or liability incurred by the Debtor pursuant to this Interim Order arising prior to the Lenders' receipt of notice of the effective date of such stay, modification or vacation shall be governed in all respects by the original provision of this Interim Order, and the Lenders shall continue to be entitled to all of the rights, remedies, privileges and benefits, authorized herein, with respect to all such indebtedness, obligation or liability, and the validity of any payments made or obligations owed or credit extended pursuant to this Interim Order is and shall remain subject to the protection afforded under the Bankruptcy Court. 12. The Final Hearing on the Motion is scheduled for July 27, 2012 at 1:00 p.m. (ET) before this Court (the "Final Hearing"). 13. The Debtor shall promptly mail copies of this Interim Order to the parties having been given notice of the Interim Hearing and to any other party which has filed a request for notices with this Court. Any party in interest objecting to the relief sought at the Final 01:12244107.2 10 Hearing shall serve and file written objections by no later than July 20, 2012 at 4:00p.m. (ET) which objections shall be served so as to be received on such date, upon (i) Young, Conaway Stargatt & Taylor, LLP, 1000 North King Street, Wilmington, Delaware 19889-0391, Attention: Joseph M. Barry, and, Foley & Lardner LLP, 402 W. Broadway, Suite 2100, San Diego, California 92101, Attn: Christopher Celentino, Proposed Attorneys for the Debtor, (ii) counsel for the Lenders, (iii) counsel to any statutory committees appointed in these cases, and (iv) the Office of the United States Trustee for the District of Delaware, 844 King Street, Suite2207, Wilmington, Delaware 19801, Attention: Mark Kenney. 1 1). This Interim Order shall constitute findings of fact and conclusions of law and shall take effect and be fully enforceable immediately upon Dated: Wilmington, Delaware June2,2012 JL/. fO;t.:-1-he. a V() 1d en a e. "+- c1t7V 171-.. 'fht re Ia. ewf.. t 5fdl\.l.td lt.. 6rder cia r'IM -b 4-hcL of. clf\l..( 4-t\.ak bdCK.l W. wovld h6ve Mil-