Opinion
Case No. 10-10492-TJC.
August 26, 2011
MCNAMEE, HOSEA, JERNIGAN, KIM, GREENAN LYNCH, P.A., Christopher L. Hamlin (Bar No. 04597), Greenbelt, MD, Attorneys for Debtor Stone Surfaces MD, Inc.
DLA PIPER LLP (US), Dale K. Cathell (Bar No. 26924), Baltimore, MD, Attorneys for Wells Fargo Bank, N.A., successor by merger to Wachovia Bank, N.A.
RUTH, DONER, JACKSON, PLC, Karen A. Doner (Bar No. 15065), McLean, Virginia, Attorneys for SunTrust Bank.
On December 7, 2010, this Court approved and entered a First Stipulation and Consent Order Extending Final Agreement and Consent Order Authorizing Debtor to Use Cash Collateral and Granting Adequate Protection (the "First Extension Order") between Wells Fargo Bank, N.A., successor by merger to Wachovia Bank, N.A. ("Wachovia"), SunTrust Bank ("SunTrust"), and Stone Surfaces MD, Inc. ("Debtor"), which extended the Final Agreement and Consent Order Authorizing Debtor to Use Cash Collateral and Granting Adequate Protection approved by this Court on September 16, 2010 (the "Final Agreement and Consent Order"). The First Extension Order expired by its terms on February 28, 2011.
The Court entered a Second Stipulation and Consent Order Extending Final Agreement and Consent Order Authorizing Debtor to Use Cash Collateral and Granting Adequate Protection (the "Second Extension Order") on March 3, 2011 (Docket No. 241). The Second Extension Order expired by its terms on April 15, 2011. The Court entered a Third Stipulation and Consent Order (the "Third Extension Order") on May 13, 2011 (Docket No. 272). The Third Extension Order expired by its terms on June 14, 2011. The Court entered a Fourth Stipulaiton [the "Fourth Extension Order"] on June 7, 2011 (Docket No. 288), which expires by its terms on August 31, 2011.
The Debtor has a continuing need to continue the operation of the Debtor's business operations and to preserve the value of its assets and continues to require the use of the Cash Collateral.
To allow for the continued use of the Cash Collateral, Debtor, Wachovia, and SunTrust desire to enter into this Fifth Stipulation and Consent Order Extending and Modifying Final Agreement and Consent Order Authorizing Debtors to Use Cash Collateral and Granting Adequate Protection (this "Fifth Extension").
Wachovia, SunTrust, and the Debtor stipulate and agree as follows:
1. The Debtor's authority to use cash collateral shall be extended to October 31, 2011, pursuant to the terms and conditions set forth in the Final Agreement and Consent Order, the First Extension Order, the Second Extension Order, the Third Extension Order and the Fourth Extension Order as modified hereby.
2. The Budget attached hereto as Exhibit A shall be substituted in lieu of the Budget attached to the First Extension Order.
3. The Debtor is authorized to use cash collateral to pay reasonable and ordinary expenses in conformity with the budget attached to this Order until October 31, 2011, subject to paragraph 4 below. The authorization granted to the Debtor under this Fifth Extension shall terminate on October 31, 2011. Notwithstanding any such termination, the rights and obligations of the Debtor and the rights, claims, security interests, liens and priorities of Wachovia and SunTrust with respect to all transactions which occurred prior to the occurrence of any termination, including, without limitation, all replacement liens granted to Wachovia and SunTrust as adequate protection which are provided under the Final Agreement and Consent Order, the First Extension Order, the Second Extension Order, the Third Extension Order, the Fourth Extension Order and this Fifth Extension shall remain unimpaired and unaffected by any termination of the Final Agreement and Consent Order, the First Extension Order, the Second Extension Order, the Third Extension Order, the Fourth Extension Order or this Fifth Extension, shall survive any such termination of the Final Agreement and Consent Order, the First Extension Order, the Second Extension Order, the Third Extension Order, the Fourth Extension Order, and this Fifth Extension, and shall be binding upon the Debtor, any and all successors-in-interest to the Debtor, including any Chapter 11 trustee or any Chapter 7 trustee, all creditors and other parties in interest, and the Debtor's Estate.
4. The Budget attached hereto as Exhibit A is applicable to the period Sepember 1, 2011 through October 31, 2011.
5. As further adequate protection for Wachovia and SunTrust's interests as of the Petition Date in the Prepetition Collateral, the Debtor shall pay to each Wachovia and SunTrust $3,000 on August 23, 2011, (August and September 2011 monthly payments) and $1,500.00 on October 1, 2011. Such Adequate Protection Payments will be applied to reduce the outstanding indebtedness owed by the Debtor.
6. All other terms of the Final Agreement and Consent Order, First Extension Order, Second Extension Order, Third Extension Order and Fourth Extension Order shall remain in full force and effect through October 31, 2011. Except as provided herein, no terms of the Final Agreement and Consent Order, First Extension Order, Second Extension Order, Third Extension Order and/or Fourth Extension Order, are amended, altered or otherwise nullified.
7. Subject to entry of an order approving this Order, further extensions of this Order shall be permitted without a hearing subject to notice and no objection being raised.
Signed: August 25, 2011
SO ORDERED
DATED: August 23, 2011
Certification Pursuant to Admin. Order 03-02, Ex. A, Sec. V.B.I
I HEREBY CERTIFY that the terms of the copy of the consent order submitted to the Court are identical to those set forth in the original consent order; and the signatures represented by the /s/ on this copy reference the signatures of consenting parties on the original consent order.
EXHIBIT A QUARTERLY BUDGET
$2,000.00
Estimated Revenue September, 2011 $230,000.00 October, 2011 $230,000.00 November, 2011 $260,000.00 Salaries $85,000.00 Taxes $4,000.00 Advertisements $5,000.00 Rent $30,000.00 Insurance $3,000.00 Utilities $8,000.00 Phone $2,000.00 Trucks expenses $7,000.00 Shop supplies $7,000.00 Office expense (trash, coffee, water, supplies) $1,800.00 Legal fees Debtor's counsel $3,500.00 US Trustee's Quarterly: $1,500.00 Yoav Sicker, Esquire $500.00 Professional fees $1,250.00 Wachovia loans $250,000.00 $1,500.00 $249,000.00 $1,300.00 SunTrust $1,500.00 Material $85,000.00 Miscellaneous Total: $216,850.00 _____________________________________ By: Daryoush Afsharjavan, Principal Stone Surfaces MD, Inc.