CASE NO. 00-19258-LBRUnited States Bankruptcy Court, D. Nevada
September 30, 2002
Pauline Ng Lee, Brent C. Eckersley, HALE LANE PEEK DENNISON and HOWARD, Las Vegas, NV, Local Counsel for MERCURY AIR GROUP, INC. AND RPA AIRLINE AUTOMATION SERVICES,
Kyung S. Lee, Jason M. Rudd, DIAMOND MCCARTHY TAYLOR FINLEY, LLP, Houston, Texas, Lead Counsel for MERCURY AIR GROUP, INC. AND RPA AIRLINE AUTOMATION SERVICES, INC.
Craig Hansen, Thomas Salerno, Jonathan Hess, Phoenix, AZ, and, James Shea, Esq., Shea Carlyon, Ltd., Las Vegas, NV, ATTORNEYS FOR DEBTORS AND DEBTOR-IN-POSSESSION NATIONAL AIRLINES, INC. HAYNES AND BOONE, LLP
Robin Phelan, Esq., Dallas, Texas, ATTORNEYS FOR THE OFFICIAL UNSECURED CREDITORS’ COMMITTEE
GORDON SILVER, LTD., Gerald Gordon, Esq., Thomas Fell, Esq., Las Vegas, NV, ATTORNEYS FOR HARRAH’S OPERATING COMPANY DISTRICT ATTORNEY’S OFFICE
Ann Bersi, Esq., Las Vegas, NV, ATTORNEY’S FOR MCCARRAN INTERNATIONAL AIRPORT AND DALLAS/FORT WORTH INTERNATIONAL AIRPORT BOARD
AGREED ORDER EXTENDING THE FIFTH AMENDED INTERIM ORDER. AS MODIFIED, THROUGH THE EARLIER OF I) EFFECTIVE DATE OF THE PLAN OR II) OCTOBER 31, 2002
LINDA RIEGLE, United States Bankruptcy Judge.
The Court has considered the parties’ request to extend the terms of the Fifth Amended Interim Order (I) Authorizing Post-Petition Secured Superpriority Financing pursuant to Bankruptcy Code Sections 105(a), 362, 364(c)(1), 354(c)(3) and 364(d), (II) Authorizing Debtor’s Use of Cash Collateral Pursuant to Bankruptcy Code Section 363(c), and (III) Granting Adequate Protection Pursuant to Sections 363 and 364 of the Bankruptcy Code (the “Fifth Interim Order”) which this Court approved on or about March 1, 2001, and it appearing to the Court that this Court then approved the extension of the Fifth Interim Order through March 28, 2001 5:00 p.m.; and it appearing to the Court that this Court then approved the extension of the Fifth Interim Order through March 30, 2001 3:00 p.m.; and based on the request by this Court that the parties seek an agreement for Mercury to provide National fuel at a hearing held on March 29th, the parties negotiated at arms-length and agreed to extend the terms and provisions of the Fifth Interim Order through April 11, 2001, 5:00 p.m. under the modified terms and provisions set forth therein, which this Court approved on March 29, 2001 (the “March 29, 2001 Order”); and it appearing to the Court that the parties agreed to and the Court approved an extension of the Fifth Interim Order, as modified by the March 29, 2001 Order through April 25, 2001 at 5:00 p.m.; and it appearing to the Court that the parties agreed to and the Court approved an extension of the Fifth Interim Order, as modified by the March 29, 2001 Order through May 9, 2001 at 5:00 p.m.; and it appearing to the Court that the parties agreed to and the Court approved an extension of the Fifth Interim Order, as modified by the March 29, 2001 Order through May 31, 2001 at 5:00 p.m.; and it appearing to the Court that the parties agreed to and the Court granted a speaking order approving an extension of the Fifth Interim Order, as modified by the March 29, 2001 Order through June 7, 2001 at 5:00 p.m.; and it appearing to the Court that the parties agreed to and the Court approved an extension of the Fifth Interim Order, as modified by the March 29, 2001 Order, through June 12, 2001 at 5:00 p.m.; and it appearing to the Court that the parties negotiated at arms-length and agreed to extend the terms and provisions of’ the Fifth Interim Order, as modified by the March 29, 2001 Order, through June 22, 2001 at 5:00 p.m. under the modified terms and provisions set forth therein, which this Court orally approved on June 12, 2001 and approved by entry of the Order on June 18, 2001 (the “June 18, 2001 Order”); and it appearing to the Court that the parties agreed to and the Court approved an extension of the Fifth Interim Order, as modified by the March 29, 2001 Order and June 18, 2001 Order, through June 26, 2001 at 5:00 p.m.; it appearing to the Court that the parties negotiated at arms-length and agreed to extend the terms and provision of the Fifth Amended Order, as modified by the March 29, 2001 Order and the June 18, 2001 Order, through June 29, 2001 at 5:00 p.m. under the modified terms and provisions set forth therein, which this Court orally approved on June 26, 2001; it appearing to the Court that the parties agreed to and the Court approved an extension of the Fifth Interim Order, as modified by the March 29, 2001 Order and June 18, 2001 Order, through July 6, 2001 at 5:00 p.m.; and it appearing to the Court that the parties agreed to and the Court approved an extension of the Fifth Interim Order, as modified by the March 29, 2001 Order and June 18, 2001 Order, through July 26, 2001 at 5:00 p.m.; it appearing to the Court that the parties agreed to and the Court approved an extension of the Fifth Interim Order, as modified by the March 29, 2001 Order and June 18, 2001 Order, through August 28, 2001 at 5:00 p.m.; it appearing to the Court that the parties agreed to and the Court approved an extension of the Fifth Interim Order, as modified by the March 29, 2001 Order and June 18, 2001 Order, through September 25, 2001 at 5:00 p.m.; it appearing to the Court that the parties agreed to and the Court approved an extension of the Fifth Interim Order, as modified by the March 29, 2001 Order and June 18, 2001 Order, through October 10, 2001 at 5:00 p.m.; it appearing to the Court that the parties agreed to and the Court approved an extension of the Fifth Interim Order, as modified by the March 29, 2001 Order and June 18, 2001 Order, through October 30, 2001 at 5:00 p.m.; it appearing to the Court that the parties agreed to and the Court approved an extension of the Fifth interim Order, as modified by the March 29, 2001 Order and June 18, 2001 Order, through December 31, 2001 at 5:00 p.m.; it appearing to the Court that the parties agreed to and the Court approved an extension of the Fifth Interim Order, as modified by the March 29, 2001 Order and June 18, 2001 Order, through (i) the Effective Date[1] of the Debtor’s First Amended Plan of Reorganization (the “Plan”) at 5:00 p.m. (Las Vegas Time) or (ii) February 28, 2002 at 5:00 p.m. (Las Vegas Time); it appearing to the Court that the parties agreed to and the Court approved an extension of the Fifth Interim Order, as nodified by the March 29, 2001 Order and June 18, 2001 Order, through (I) the Effective Date of the Plan at 5:00 p.m. (Las Vegas Time) or (ii) April 1, 2002 at 5:00 p.m. (Las Vegas Time); it appearing to the Court that the parties agreed to and the Court approved an extension of the Fifth Interim Order, as modified by the March 29, 2001 Order and June 18, 2001 Order, through (i) the Effective Date of the Plan at 5:00 p.m. (Las Vegas Time) or (ii) April 30, 2002 at 5:00 p.m. (Las Vegas Time); it appearing to the Court that the parties agreed to and the Court approved an extension of the Fifth Interim Order, as modified by the March 29, 2001 Order and June 18, 2001 Order, through (i) the Effective Date of the Plan at 5:00 p.m. (Las Vegas Time) or (ii) May 31, 2002 at 5:00 p.m. (Las Vegas Time); it appearing to the Court that the parties agreed to and the Court approved an extension of the Fifth Interim Order, as modified by the March 29, 2001 Order and June 18, 2001 Order, through (i) the Effective Date of the Plan at 5:00 p.m. (Las Vegas Time) or (ii) June 28, 2002 at 5:00 p.m. (Las Vegas Time); it appearing to the Court that the parties agreed to and the Court approved an extension of the Fifth Interim Order, as modified by the March 29, 2001 Order and June 18, 2001 Order, through (i) the Effective Date of the Plan at 5:00 p.m. (Las Vegas Time) or (ii) July 8, 2002 at 5:00 p.m. (Las Vegas Time); it appearing to the Court that the parties agreed to and the Court approved an extension of the Fifth Interim Order, as modified by the March 29, 2001 Order and June 18, 2001 Order, through (i) the Effective Date of the Plan at 5:00 p.m (Las Vegas Time) or (ii) July 31, 2002 at 5:00 p.m. (Las Vegas Time); it appearing to the Court that the parties agreed to and the Court approved an extension of the Fifth Interim Order, as modified by the March 29, 2001 Order and June 18, 2001 Order, through (i) the Effective Date of the Plan at 5:00 p.m. (Las Vegas Time) or (ii) August 30, 2002 at 5:00 p.m. (Las Vegas Time); it appearing to the Court that the parties agreed to and the Court approved an extension of the Fifth interim Order, as modified by the March 29, 2001 Order and June 18, 2001 Order, through (i) the Effective Date of the Plan at 5:00 p.m. (Las Vegas Time) or (ii) September 30, 2002 at 5:00 p.m. (Las Vegas Time); and it appearing to the Court that the parties seek to further extend the Fifth Interim Order, as modified by the March 29, 2001 Order and the June 18, 2001 Order, through the earlier of (i) theEffective Date of the Plan at 5:00 p.m. (Las Vegas Time) or (ii) October31, 2002 at 5:00 p.m. (Las Vegas Time); and it appearing to the Court that notice of the request is appropriate and adequate and after having held hearings on the relief requested, in accordance with the provisions of 11 U.S.C. § 361, 363 and 364 (including, without limitation, Federal Rules of Bankruptcy Procedure 4001(b)(2), 4001(c) and 4001(d)) and the agreement of the parties; and it appearing to the Court that without the requested relief the Debtor would suffer irreparable harm; accordingly, it is hereby:
ORDERED, ADJUDGED and DECREED that the terms and provisions of the Fifth Interim Order and all previous extensions thereof, and all modifications thereto, which are fully incorporated herein as if fully set forth, be and hereby are extended through and including the earlierof (i) the Effective Date of the Plan at 5:00 p.m. (Las Vegas Time) or(ii) October 31, 2002 at 5:00 p.m. (Las Vegas Time), as long as the Debtor shall pay via wire transfer to Mercury by no later than noon Las Vegas time, the payment amounts, which are subject to change due to fluctuations in the fuel prices, listed on Exhibit “A” attached hereto.
These payment amounts are subject to increase if Mercury experiences an increase in the price of fuel. In the case of a price increase, Mercury shall provide twenty-four (24) hour written notice and demand to Debtor of an increase in the payment amount(s) and the reason(s) therefore and Debtor hereby agrees to pay the increased payment amounts through the expiration date of this Order.
The fuel payments shall be subject to a monthly final reconciliation, which shall be paid by the party owing money to the other by no later than the 14th day of the succeeding month; (b) Mercury’s credit exposure to National for providing fuel on credit shall be limited to and capped at $400,000, plus allowed attorneys’ fees; and (c) in addition to other access to data and information to be provided as set out in the previous orders, National shall provide access and data to Mercury as to any debtor in possession financing or other working capital developments and arrangements. Unless Debtor is in compliance with the terms and provisions of this order and the Fifth interim Order and any extensions and modifications thereof, Mercury shall have no obligation to provide fuel or credit to Debtor and any breach or non-compliance of any of the terms and provisions in this Order and the Fifth Interim Order and extensions thereof constitutes justifiable grounds for Mercury to cease providing fuel or credit to Debtor; and it is further
ORDERED, ADJUDGED AND DECREED, nothing in this order or the extension that it grants of the Fifth Interim Order, as previously extended and modified, shall constitute a waiver of Mercury’s various rights and remedies under the Fifth Interim Order (as extended and modified), including but not limited to, the rights and remedies granted to Mercury pursuant to Sections 364(c)(1) and 364(d) of the Bankruptcy Code; and it is further
ORDERED, ADJUDGED and DECREED that entry into this order in no way waives or is intended to affect Mercury’s right to cease extending credit or providing fuel as set out in the Fifth Interim Order; and it is further
ORDERED, ADJUDGED and DECREED that the term of this order shall expire on the earlier of (i) the Effective Date of the Plan at 5:00 p.m. (LasVegas Time) or (ii) October 31, 2002 at 5:00 p.m. (Las Vegas Time) or earlier if there is a breach, unless otherwise extended by written agreement of the parties, but subsection (c) of the first ordering paragraph of this order shall survive such expiration; and it is further
ORDERED, ADJUDGED and DECREED that, in the event that the parties decide to extend this Order and the Fifth interim Order and any previous extensions thereof, Mercury and Debtor must reach agreement incorporated into an order acceptable to Mercury and RPA no later than the earlier of(i) the Effective Date of the Plan at 5:00 p.m. (Las Vegas Time) or (ii)October 31, 2002 at 5:00 p.m. (Las Vegas Time); and it is further
ORDERED, ADJUDGED and DECREED that this order is effective immediately upon entry
SO ORDERED
PAYMENT SCHEDULE NATIONAL AIRLINES Credit Line $400,000
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TX/RX NO 1859 PGS. 12 TX/RX INCOMPLETE —- TRANSACTION OK (1) 5050#1674*2001#16022538129#
(2) 5050#16742*2001#12146515940# ERROR INFORMATION —-
HALE LANE PEEK DENNISON HOWARD AND ANDERSON A Professional Corporation Attorneys and Counsellors at Law 2300 West Sahara Avenue, Eighth Floor, Box 8 Las Vegas, Nevada 89102 Telephone (702) 222-2500 Facsimile (702) 365-6940 Website: http://www.halelane.comBRENT C. ECKERSLEY E-MAIL:beckersley@halelane.com
FACSIMILE TRANSMISSION FORM
FROM: Brent C. Eckersley, Esquire
OUR FILE NO.: 16742-2001
REGARDING: in re National Airlines, Inc.; BK-S-00-19258-LBR
NUMBER OF PAGES TRANSMITTED (including cover sheet):
DATE: September 25, 2002
Please find attached a proposed Order memorializing the terms of theExtension of Fuel through October 31, 2002. In the event you agree to theterms contained in the Order, please sign and return to Pauline viafacsimile as the current Order expires on Monday, September 30, 2002.Thank you.
Return to: ORIGINAL WILL:
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