GREATER ORLANDO AVIATION AUTHORITY'S MOTION TO COMPEL POST-PETITION RENT PAYMENT UNDER LEASE AND REQUEST FOR EXPEDITED HEARING (Store No.

Transcription

1 Lyndel Anne Mason TX State Bar No CAVAZOS, HENDRICKS, POIROT & SMITHAM, P.C. Suite 570, Founders Square 900 Jackson Street Dallas, TX Phone: (214) Fax: (214) Attorneys for Greater Orlando Aviation Authority IN RE: S & A RESTAURANT CORP., et al., DEBTORS. UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF TEXAS SHERMAN DIVISION CASE NO BTR-7, et seq. Jointly Administered Under Case No BTR-7 GREATER ORLANDO AVIATION AUTHORITY'S MOTION TO COMPEL POST-PETITION RENT PAYMENT UNDER LEASE AND REQUEST FOR EXPEDITED HEARING (Store No. 1096) The Greater Orlando Aviation Authority ( GOAA ), a public body existing under the laws of the State of Florida, hereby moves this Court for an Order allowing and compelling immediate payment to GOAA of an Administrative Claim under 11 U.S.C The negative notice procedure customarily employed will not insure that this motion is addressed prior to the Trustee s proposed sale of leasehold interests presently scheduled for October 30, 2008 and the Trustee has failed to pay for a single month of rent, now standing three months in arrears postpetition. Therefore an expedited hearing is warranted and GOAA submits the following in support of immediate payment of its administrative claim: GREATER ORLANDO AVIATION AUTHORITY'S MOTION TO COMPEL POST-PETITION RENT PAYMENT UNDER LEASE AND REQUEST FOR EXPEDITED HEARING (Store No. 1096) PAGE 1

2 I. JURISDICTION AND VENUE 1. This Court has jurisdiction over the subject matter of this Motion pursuant to 28 U.S.C. 157 and This is a core proceeding as such term is defined in 28 U.S.C. 157(b)(2)(A) and (O). 3. Venue is proper pursuant to 11 U.S.C and The statutory predicates for the requested relief are 11 U.S.C. 365(d)(3) and (10) and 503(b)(1)(A). II. FACTUAL BACKGROUND 5. On July 29, 2008 (the Petition Date ), the Debtors filed a voluntary petition for relief under Chapter 7 of the United States Bankruptcy Code. 6. Michelle Chow has been appointed as Chapter 7 Trustee. 7. Prior to the Petition Date, the Debtors operated a Bennigan s restaurant (store no. 1096) at 4250 E. Colonial Drive, Orlando, FL (the Premises ). The Premises is owned and leased by GOAA and was leased to one of the Debtors, Steak & Ale of Florida, Inc. ( SAF ) under that Orlando Executive Airport Lease Agreement (the Lease ) by and between GOAA, as landlord and SAF, as tenant, dated August 21, 1986, a true and correct copy of which is attached as Exhibit A. 8. On January 20, 1987, GOAA and SAF executed a Memorandum of Lease indicating the commencement of the initial twenty (20) year lease and providing an option for two (2) consecutive five-year renewals. A true and correct copy of the Memorandum is attached hereto as Exhibit B. GREATER ORLANDO AVIATION AUTHORITY'S MOTION TO COMPEL POST-PETITION RENT PAYMENT UNDER LEASE AND REQUEST FOR EXPEDITED HEARING (Store No. 1096) PAGE 2

3 9. On or about June 16, 1998, SAF and S&A Leased Properties 1, Inc. ( SPE1 ) executed an Assignment and Assumption of Lease, and Sublease of Premises (the Assignment ), wherein SAF assigned the Lease to SPE1 and then SPE1 sublet the Premises back to SAF. A true and correct copy of the Assignment is attached hereto as Exhibit C. Pursuant to the terms of the Assignment, SAF and SPE1 are jointly and severally liable to GOAA for the obligations under the Lease. 10. Also on June 16, 1998, SPE1, as assignee for SAF, executed an Amended and Restated Memorandum of Lease ( Restated Memorandum ) to GOAA. A copy of the Restated Memorandum is attached hereto as Exhibit D. 11. Pursuant to the terms of the Lease, SPE1 exercised its option to renew the Lease for the first renewal term of five (5) years beginning on November 1, Upon information and belief, the Debtor ceased operations at the Premises on or before midnight on July 28, The premises have remained vacant and dark since that date. The Debtors abandoned the personal property at the Premises. III. POST PETITION CHRONOLOGY 13. On August 19, 2008, the Court entered its Order Approving Trustee s Emergency Motion to Defer Payment of Rent (DE# 165), providing for an extension up to and including August 31, 2008 to pay August rent on the leases identified in the Motion. GOAA s Lease for Store No was included on the exhibit attached to the Trustee s Motion. As of the date of filing this Motion, the August rent has not been paid to GOAA. 14. On September 3, 2008, the Court entered its Order Approving Emergency Motion to Approve Stipulations for the Payment of September Rent and Other Related Expenses (DE# 280), providing for an extension up to and including September 26, 2008 to pay the September GREATER ORLANDO AVIATION AUTHORITY'S MOTION TO COMPEL POST-PETITION RENT PAYMENT UNDER LEASE AND REQUEST FOR EXPEDITED HEARING (Store No. 1096) PAGE 3

4 rent on the leases identified in the Motion. Again, GOAA s Lease for Store No was included on the exhibit attached to the Motion. However, the September rent has not been paid to GOAA. 15. On September 23, 2008, counsel for GOAA sent a letter to the Trustee and her counsel requesting payment of the August and September rent. A copy of the letter is attached hereto as Exhibit E. GOAA has not received a response to the letter from the Trustee or her counsel. 16. On September 25, 2008, the Trustee filed an Expedited Motion to Approve Stipulations Regarding October Rent Advance for Certain Leases (DE# 395). GOAA s Lease was included on Exhibit A attached to the Motion. A hearing on the Trustee s September 25 Motion is scheduled for October 7, Pursuant to the terms of the Lease, SAF and SEP1 are both responsible for the payment of various monthly rental charges. Additionally Debtor, S & A Restaurant Corp., is obligated as a guarantor on this Lease. SAF and the Trustee have failed to make the full postpetition rent payments to GOAA. Pursuant to the terms of the Lease, the total amount of postpetition rent and related charges that are now due and owing for August, September and October 2008 is $35, plus GOAA s attorney s fee and costs. 18. GOAA s claim under the Lease is not subject to any setoff or counterclaim, and GOAA has no security for said debt. III LEGAL ANALYSIS AND REQUESTED RELIEF U.S.C. 365(d)(3) required the Trustee to timely perform all post-petition obligations, including the payment of rent, under any unexpired lease of non-residential real GREATER ORLANDO AVIATION AUTHORITY'S MOTION TO COMPEL POST-PETITION RENT PAYMENT UNDER LEASE AND REQUEST FOR EXPEDITED HEARING (Store No. 1096) PAGE 4

5 property until such contract is assumed or rejected, without the necessity of notice and a hearing as is ordinarily required for the payment of administrative expenses under 11 U.S.C. 503(b). 20. Additionally, this Court approved extensions for payment of post petition rents which Court deadlines have already past. WHEREFORE, GOAA requests this Court to require the Trustee to forthwith pay GOAA all of its post-petition rent and related charges; and any and all relief as this Court deems just and equitable. Dated: October 7, BROAD AND CASSEL Roy S. Kobert, P.A. 390 North Orange Ave., Suite 1400 Orlando, Florida Post Office Box 4961 Orlando, Florida Telephone: (407) Fax: (407) Florida Bar No rkobert@broadandcassel.com orlandobankruptcy@broadandcassel.com (Pro Hac Vice Application to be filed) and CAVAZOS, HENDRICKS, POIROT & SMITHAM, P.C. /s/lyndel Anne Mason Lyndel Anne Mason TX State Bar No Suite 570, Founders Square 900 Jackson Street Dallas, TX Phone: (214) Fax: (214) LMason@chfirm.com Attorneys for Greater Orlando Aviation Authority GREATER ORLANDO AVIATION AUTHORITY'S MOTION TO COMPEL POST-PETITION RENT PAYMENT UNDER LEASE AND REQUEST FOR EXPEDITED HEARING (Store No. 1096) PAGE 5

6 CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing pleading was served through the Court's electronic (ECF) notification system via on all parties listed on the Official Service List on the 7th day of October, /s/ Lyndel Anne Mason Lyndel Anne Mason GREATER ORLANDO AVIATION AUTHORITY'S MOTION TO COMPEL POST-PETITION RENT PAYMENT UNDER LEASE AND REQUEST FOR EXPEDITED HEARING (Store No. 1096) PAGE 6

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75 IN RE: S & A RESTAURANT CORP., et al., DEBTORS. UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF TEXAS SHERMAN DIVISION CASE NO BTR-7, et seq. Jointly Administered Under Case No BTR-7 ORDER GRANTING GREATER ORLANDO AVIATION AUTHORITY'S MOTION TO COMPEL POST-PETITION RENT PAYMENT UNDER LEASE AND REQUEST FOR EXPEDITED HEARING (Store No. 1096) CAME ON, before the Court, to be considered the Greater Orlando Aviation Authority s Motion to Compel Post-Petition Rent Payment under Lease and Request for Expedited Hearing (Store No. 1096) (the Motion ) filed on October 7, 2008, by Great Orlando Aviation Authority ( GOAA ). The Court, having considered the Motion, is of the opinion and finds: 1. That this Court has jurisdiction of this matter, and that this is a core proceeding; 2. That the Motion was filed in this case on October 7, 2008; 3. That Motion was served through the Court's electronic (ECF) notification system via on all parties listed on the Official Service List on the 7th day of October, 2008; 4. This Court set this matter for expedited hearing because the negative notice procedure customarily employed would not insure that the motion would be addressed prior to the Trustee s proposed sale of leasehold interests presently scheduled for October 30, 2008; 5. No objections have been timely filed; and that 6. The following Order should be entered. It is, therefore, ORDERED, ADJUDGED AND DECREED that: ORDER GRANTING GREATER ORLANDO AVIATION AUTHORITY'S MOTION TO COMPEL POST-PETITION RENT PAYMENT UNDER LEASE AND REQUEST FOR EXPEDITED HEARING (Store No. 1096) PAGE 1

76 The Motion is hereby GRANTED and the Trustee is directed to pay all make postpetition rent and related charges that are now due and owing for August, September and October 2008 totaling $35, to Greater Orlando Aviation Authority and $ for the attorney s fee and costs incurred as the result of these post-petition defaults. ### END OF ORDER ### Order drafted by: Lyndel Anne Mason State Bar No CAVAZOS, HENDRICKS, POIROT & SMITHAM, P.C. Suite 570, Founders Square 900 Jackson Street Dallas, TX Phone: (214) Fax: (214) Lmason@chfirm.com Attorneys for Greater Orlando Aviation Authority ORDER GRANTING GREATER ORLANDO AVIATION AUTHORITY'S MOTION TO COMPEL POST-PETITION RENT PAYMENT UNDER LEASE AND REQUEST FOR EXPEDITED HEARING (Store No. 1096) PAGE 2