Case No. 02-00979-KL3-11United States Bankruptcy Court, M.D. Tennessee, Nashville Division
August 21, 2002
Garfinkle, McLemore Walker, Edwin M. Walker, for Banc One Leasing Corporation
Harwell, Howard, Hyne, Gabbert Manner, David P. Canas, for Debtor
AGREED ORDER RESOLVING MOTION OF BANC ONE LEASING CORPORATION FOR RELIEF FROM AUTOMATIC STAY
KEITH M. LUNDIN, United States Bankruptcy Judge
This cause came on to be heard upon the agreement of the parties, as is evidenced by the signatures of counsel hereto, resolving the Motion of Banc One Leasing Corporation for Relief from the Automatic Stay or for Adequate Protection filed April 11, 2002, and the parties stipulate as follows:
1. The Debtors filed petitions for relief under Chapter 11 on January 24, 2002.
2. There are two loan agreements between Banc One and Pen Coal Corporation. There are three loan agreements between Banc One and Pen Coal Corporation and Elk Horn Coal Corporation. Both Pen Coal Corporation and Elk Horn Coal Corporation are affiliates of Pen Holdings, Inc. All three cases have been consolidated for administration in this matter. Pen Holdings, Inc. guaranteed the respective obligations of Pen Coal Corporation and Elk Horn Coal Corporation under these loans. For purposes of this Agreed Order, all three parties are referred to as the “Debtor.”
3. Loan Number 1000066006 was made on May 26, 1998. It is secured by a properly perfected security interest in the following equipment:
Caterpillar 992GHL Wheel Loader: s/n 7HR00166
4. Loan Number 1000102483 was made on March 20, 2000. It is secured by a properly perfected security interest in the following equipment:
Caterpillar D9RDS Tractor: s/n 7TL01285 Long Airdox Scoop 602: s/n 602-1118 Long Airdox Roof Bolter: s/n 62-847 488 Scoop w/battery, cable, charger: s/n 488-2103 JR 2P LA-8 Charger 480 VAC: s/n 88-0017
5. Loan Number 1000066182 was made on June 5, 1998. It is secured by a properly perfected security interest in the following equipment:
3000 KVA Substation: s/n 11381-3000-389 Spenthrup Mine Fan: s/n 3347
6. Loan Number 1000066186 was made on June 5, 1998. It is secured by a properly perfected security interest in the following equipment:
Caterpillar 988FHL Wheel Loader: s/n 2ZR01312
7. Loan Number 1000102481 was made on March 20, 2000. It is secured by a properly perfected security interest in the following equipment:
Caterpillar 980F Wheel Loader: s/n 8JN00819 Caterpillar 966C Wheel Loader: s/n 76J14861 Caterpillar 824B Dozer: s/n 36H00613 Shuttle Car: s/n 15930 Joy 14CM15 Continuous Miner: s/n JM5031 Joy Shuttle Car 10SC32: s/n ET15488
8. Loan Numbers 1000066006, 1000066182, 1000066186, 1000102481, and 1000102483 are hereinafter referred to as the “Pen Coal Loans”. The equipment which forms the collateral for the Pen Coal Loans is hereinafter referred to as the “Colliteral”. The documents attached to the motion are true and correct copies of the pertinent loan documents related to the Pen Coal loans. The parties acknowledge that there are other documents related to those loans. All of such documents are hereinafter referred to as the “Loan Documents”.
9. Solely for the purposes of this Order, the parties stipulate that the value of the Collateral is greater than the amount owed on the loans together with unpaid interest as of the date of this petition in this cause. The stipulation shall not be binding on the parties for any other purpose connected with this case, including any subsequent motion for relief from stay which may be filed by Banc One Leasing Corporation in this matter.
And based on the foregoing stipulations and the entire record in this case, it is hereby ORDERED:
1. Banc One shall have relief from stay as to the following items:
Caterpillar D9RDS Tractor: s/n 7TL01285 Caterpillar 988FHL Wheel Loader: s/n 2ZR01312 Shuttle Car: s/n 15930 Caterpillar 992GHL Wheel Loader: s/n 7HR00166
2. The foregoing property is referred to hereinafter as the “Released Collateral.”
3. The provisions of Bankruptcy Rule 4001(a)(3) are waived as to the Released Collateral.
4. Banc One shall be permitted to sell the Released Collateral at the site on which it is currently located, so long as the Debtor is in possession of such real property. The parties shall cooperate to move Released Collateral to a safe and secure location as needed, and shall take all appropriate steps to ensure proper safety and security in connection with the sale and removal of the Released Collateral. If the Debtor sells the real property on which the Released Collateral is located, the Debtor shall provide Banc One notice within two (2) business days of entry into a contract to sell the real property and shall serve Banc One with a copy of the notice to approve such sale filed with this Court. Banc One shall be required to remove all of the Released Collateral from the property before the date of closing of any sale of the real property.
5. The parties shall give each other reasonable notice as to all actions to be taken with respect to the Released Collateral, and shall cooperate fully in the sale and disposition thereof
6. The proceeds of the sale of each item of Released Collateral shall first be applied to the out-of-pocket expenses of sale incurred by Banc One; then to accrued interest and then to principal on the loan to which the obligation relates; and the balance shall be retained by Banc One for application in accordance with the Loan Documents. Banc One shall account to the Debtor for any and all such sales, and for application of proceeds.
7. Banc One asserts that there are cross-collateralization agreements among the five loan transactions and further asserts that the collateral for the loans is collateral for the obligations of the Debtors under its leases with Banc One, both pre- and post-petition. This order does not address that issue. The parties shall retain all of their rights to make such claims and raise any defenses thereto.
8. The Debtors shall not be required to retain insurance coverage with respect to the Released Collateral from the date of entry of this order.
9. The Debtors are required to meet all of their obligations under the terms of the Loan Documents other than the requirement of monthly payments.
10. Entry of this Order shall not preclude Banc One from filing a subsequent motion or motions for adequate protection or other relief with respect to the Collateral and the Loan