Opinion
No. 02-00979-KL3-11, Jointly Administered
February 28, 2003
HARWELL HOWARD HYNE GABBERT MANNER, P.C., Craig V. Gabbert, Jr., David P. Cañas, Nashville, TN, Attorney for Debtors.
REED SMITH, LLP, Elena Lazarou, New York, NY, TAYLOR, PIGUE, MARCHETTI CASKILL, PLLC, Gino Marchetti, Jr., Nashville, Tennessee, Attorneys for General Electric Capital Corporation, Commercial Equipment Finance.
AGREED ORDER MODIFYING THE AUTOMATIC STAY REGARDING GENERAL ELECTRIC CAPITAL CORPORATION
It appearing to the Court upon signatures of counsel for the Debtors mid General Electric Capital Corporation. Commercial Equipment Finance ("GE Capital"), a secured creditor in this Chapter 11 case, that the parties hereby stipulate as follows:
1. On or about May 12, 2000, Pen Holdings, Inc., one of the Debtors in these cases, entered into a Master Lease Agreement (the "MLA") with Mellon US Leasing, a Division of Mellon Leasing Corporation (a wholly owned subsidiary of GE Capital) to, among other things, secure financing related to certain commercial equipment used in the operation of the Debtors' business. A copy of the MLA, with all related schedules and amendments was filed in support of the Motion For Adequate Protection, or in the Alternative for Relief From Stay filed GE Capital on July 22, 2002.
The lessor pursuant to the MLA is Pen Holdings, Inc. ("Pen Holdings"). By Assignment and Assumption Agreement dated August 8, 2000 ("Assignment"), the obligations of Pen Holdings under the MLA were assigned to Pen Coal. The Assignment recognized that the positions of Pen Coal and Pen Holdings were inadvertently reversed at the time of the execution of the MLA.
2. The commercial equipment securing the MLA consists primarily of mining equipment (the "Equipment") that the Debtors used in the operation of their business, and is more particularly described in the collateral schedules annexed to the MLA.
3. On January 24, 2002 (the "Petition Date") the Debtors filed Voluntary Petitions for relief under Chapter 11, Title 11, United States Code (the "Bankruptcy Code").
4. On or about October 1, 2001, this Court entered an Agreed Order for Adequate Protection Regarding Interests of General Electric Capital Corporation, whereby Debtors agreed, among other things, to retain certain pieces of the Equipment and make adequate protection payments to GE Capital ("Adequate Protection Order").
5. The Debtors have ceased making payments under the Adequate Protection Order as they have determined that they do not need certain pieces of the Equipment. This Equipment is referred to herein as the "Released Equipment" and is described as follows:Description Serial Number
CAT 16H Motor Grader 6ZJ00447 Meiroc Bobcat 553F Skid Steer 516312030 Long Airdox 602 Scoop Rebuild 602-1010 Long Airdox 488 SS Scoop 488-1997 Joy SC32B Shuttle Car ET16782 Joy 10SC32-74B Shuttle Car ET16400 Appalachian Mine Supply 48-inch Belt Drive AMSDD-150-99-17-2-4 Joy 12CM 12 Continuous Miner JM4641 6. The Debtors and GE Capital agree that cause exists for relief from the automatic stay with respect to the Released Equipment.7. GE Capital has at all times maintained a duly perfected, first priority lien on the Released Equipment.
8. The Debtors assert that GE Capital did not properly perfect its security interest in two pieces of the GE Capital equipment located in Richardson, Kentucky. The two pieces of equipment are a Long Airdox R132-52A Roof Bolter, Serial No. 62865, and an EIMCO VIVA Mantrip, Serial No. 00-0183, and are referred to herein as the "Kentucky Equipment"
9. Joy Technologies, Inc. ("Joy") asserts a mechanics' lien with respect to a Joy JM4641 Miner (the "Joy Miner") in which Joy which claims a mechanics' lien with a priority over GE Capital's asserted security interest. This Agreed Order does not resolve the dispute over lien priority between Joy and GE Capital with respect to the Joy Miner.
NOW, THEREFORE, based upon the stipulation of the parties and their consent as evidenced by the signatures of their respective counsel of record, it is hereby
ORDERED, ADJUDGED AND DECREED THAT:
A. The automatic stay is hereby terminated pursuant to 11 U.S.C § 362(d)(1) to allow GE Capital to take any and all actions to enforce its interest in all of the Released Equipment (as described herein) including, without limitation, retaking possession of the Released Equipment, selling or leasing the same, and applying the proceeds of sale or lease of the Released Equipment to the obligations of the Debtors owing to GE Capital;
B. The Debtors are hereby directed to cooperate with GE Capital to permit GE Capital to retake possession of the Released Equipment;
C. All fights of the parties with respect to the Kentucky equipment are reserved;
D. GE Capital does not waive any right to assert a claim for payment of any additional charges and fees, including without limitation, attorneys' fees, and the Debtors do not waive their right to object to such claims;
E. This Agreed Order Modifying the Automatic Stay Regarding General Electric Capital Corporation (the "Agreed Order") is without prejudice to the right of GE Capital to request any additional relief or determination it deems necessary and appropriate;
F. No further order for relief will be required in the event that GE Capital needs to take legal action to obtain possession of all or a portion of the Released Equipment.