11/26/2007 322 Proposed Order submitted by Leslie Dean (RE: related document(s)274 Motion to Set Hearing, filed by Creditor Eagle View One, LLC). (Dean, Leslie) (Entered: 11/26/2007)
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Doc 322
IN RE:
Case No. 07-50934
Chapter 11
PLASTICON INTERNATIONAL, INC.
Debtor
AGREED ORDER GRANTING MOTION FOR IMMEDIATE SURRENDER OF REAL PROPERTY
On the 8th day of November, 2007 came on to be considered the Motion for Immediate Surrender of Nonresidential Real Property ("Motion for Immediate Surrender") filed by Lessor Eagle View One, LLC. The parties received notice as required by law of the filing of the Motion for Immediate Surrender. Further, the Court finds as follows:
1. The Court has jurisdiction in regard in this matter pursuant to 28 U.S.C. ?1334 and 28 U.S.C. ?157 and the Local Rules for the United States District Court for the Eastern District of Kentucky.
2. This matter is a core proceeding under 28 U.S.C. ?157(b)(2)(D).
3. On May 16, 2007 Debtor Plasticon International, Inc. ("Debtor Plasticon"), filed its Voluntary Chapter 11 Petition for Relief in the United States Bankruptcy Court for the Eastern District of Kentucky, Lexington Division ("Court"), and continues to operate its business and manage its financial affairs pursuant to Sections 1107 and 1008 of the Bankruptcy Code.
4. 11 U.S.C. Section 365 (d)(4)(A) states the following:
(A) Subject to paragraph (b), an unexpired lease of nonresidential real property under which the debtor is the lessee shall be deemed rejected, and the trustee shall immediately surrender that nonresidential real property to the lessor, if the trustee does not assume or reject the unexpired lease by the earlier of:
(i) the date that is 120 days after the date of the order for relief; or
(ii) the date of the entry of an order confirming a plan.
(B) (i) The Court may extend the period determined under subparagraph (A), prior to the expiration of the 120-day period, for 90 days on the motion of the trustee or lessor cause.
(ii) If the court grants an extension under clause (i), the court may grant a subsequent extension only upon prior written consent of the lessor in such instance.
5. Attached to the Motion for Immediate Surrender and incorporated therein as "Exhibit 1" was a copy of the nonresidential real property lease between Eagle View One, LLC ("Lessor") and Debtor Plasticon ("Lessee").
6. The earlier of 120 days after the date of the Order for Relief or the date of the entry of an order confirming a plan was 120 days after the date of the Order for Relief.
7. September 13, 2007 was 120 days after the date of the Order for Relief.
8. Debtor Plasticon did not assume or reject the nonresidential real property lease on or before September 13, 2007.
9. Debtor Plasticon did not file a motion prior to the expiration of the 120 day period and request that the court extend the period.
10. Therefore, the lease is deemed rejected and the Debtor Plasticon must immediately surrender the nonresidential real property to Lessor, Eagle View One, LLC.
11. The parties articulated at said hearing that they desire for an Agreed Order be entered Ordering Debtor Plasticon to immediately surrender the premises, and that Creditor Eagle View One, LLC agrees to give Debtor Plasticon a reasonable amount of time to remove the phone system located on the subject premises.
THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED that the parties' agreement articulated on the record on November 8, 2007 by parties' counsel is hereby accepted and made an Order of this Court, wherefore Lessee Plasticon International, Inc. is hereby ordered to immediately surrender the nonresidential real property located at 3288 Eagle View Lane, Lexington, Kentucky 40509 and that Creditor Eagle View One, LLC shall give Debtor Plasticon a reasonable amount of time to remove the phone system located on the subject premises.
Pursuant to Local Rule 9022-1(c), Leslie Dean shall cause a copy of this order to be served on each of the parties designated to receive this order pursuant to Local Rule 9022-1(a) and shall file with the court a certificate of service of the order upon the parties as listed on the master matrix. |
