01/22/2008 359 Objection Filed by 10315 LLC, John P Murphy III, John P. Murphy Revocable Trust No. 1 III, Pro Plas LLC (RE: related document(s)357 Motion to Approve, filed by Trustee Stephen Palmer). (Case, E.) (Entered: 01/22/2008)
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Doc 359
In Re:
Case No. 07-50934
Judge William S. Howard
PLASTICON INTERNATIONAL, INC.,
Chapter 11
Debtor.
LIMITED OBJECTION TO EMERGENCY MOTION BY TRUSTEE FOR ENTRY OF AN INTERIM ORDER APPROVING POSTPETITION SECURED FINANCING AND FOR SUBSEQUENT FINAL ORDER
OPP LLC formerly known as Pro Plas, LLC, a Missouri limited liability company, the John P. Murphy III Revocable Trust No. 1, 10315 LLC and John P. Murphy III (collectively “the Murphy Entities”) file this their Limited Objection to Emergency Motion by Trustee for Entry of an Interim Order Approving PostPetition Secured Financing and for Subsequent Final Order and in support thereof respectfully state the following:
1. A Compromise and Settlement Agreement was filed in Debtor Pro Mold, Inc.’s (“Pro Mold”) bankruptcy case and in Debtor Plasticon International, Inc.’s bankruptcy case on January 4, 2008 (Pro Mold D.E. # 338 and Plasticon D.E. #338).
2. An Amended Order Approving Compromise and Settlement Agreement was signed and entered in Debtor Pro Mold’s case and in Debtor Plasticon’s case on January 14, 2008 (Pro Mold D.E. #350 and Plasticon D.E. #349).
3. The Compromise and Settlement Agreement states the following:
3. Plasticon - Proprietary Product, Molds and Accounts Receivable resulting therefrom
1. The parties agree:
(a) Simultaneous with the delivery of the Releases described in paragraph 11, Trustee Henry will transfer and assign Debtor Pro Mold’s interest in the Plasticon proprietary product, molds and accounts receivable listed on Exhibit 4 which is attached hereto and incorporated herein to Trustee Palmer and the bankruptcy estate of Debtor Plasticon. According to Exhibit 4, from October 10, 2007 to January 3, 2008, Trustee Henry and Debtor Pro Mold collected $27,504.25 from the sale of Debtor Plasticon’s proprietary product. Within forty-five days from the delivery of the Releases described in paragraph 11, the successful bidder will deliver $27,504.25 minus any and all costs and expenses that have been paid in regard to the Plasticon proprietary product or molds since October 10, 2007 including the moving and storage of the Plasticon proprietary product or molds by Flexway Trucking, Inc. Any checks received by the Murphy Entities or the successful bidder from Durajoint Concrete Accessories, Plasticon International, Inc. or R & S Manufacturing, LLC in regard to the invoices listed on Exhibit 4 will be immediately delivered to Trustee Palmer and Debtor Plasticon.
(b) However, if Trustee Palmer and the bankruptcy estate of Debtor Plasticon fail to remove the proprietary product from the 13 trailers rented from Flexway Trucking, Inc. and the molds from the premises leased from 10315 LLC within forty-five days from delivery of the Releases described in Paragraph 11, the transfer to Trustee Palmer and the bankruptcy estate of Debtor Plasticon will be null and void and the proprietary product, molds, and accounts receivable shall be transferred and assigned by Trustee Henry to the Murphy Entities or their designee at the option of the Murphy Entities or their designee.
4. If the Emergency Motion by Trustee for Entry of an Interim Order Approving Postpetition Secured Financing and for Subsequent Final Order is granted and if 3.1.(b) above occurs, the transfer from Pro Mold Chapter 11 Trustee Kenneth Henry to Chapter 11 Plasticon Trustee Stephen Palmer of the Plasticon proprietary product, molds and accounts receivable will be null and void and Trustee Henry must transfer and assign the proprietary product, molds and accounts receivable to the Murphy Entities.
5. The Murphy Entities request that any order entered granting the Trustee’s Post-Petition Secured Financing Motion state the following:
a. The [DEFINED TERM FOR THE LENDER LIEN] is not effective against the Plasticon proprietary product, molds, and accounts receivable referenced in Part 3, Section 1.(a) of the Compromise and Settlement Agreement approved by Order entered January 14, 2008 (D.E. #349) (the “CSA”) if said property reverts to the Murphy Entities as set forth in Part 3, Section 1.(b) of the CSA; and/or
b. The [DEFINED TERM FOR THE LENDER LIEN] is not effective against the Murphy Entities’ setoff rights as referenced in Part 3, Section 1.(a) of the CSA.
WHEREFORE, the Murphy Entities request that the Emergency Motion by Trustee for Entry of an Interim Order Approving PostPetition Secured Financing and for Subsequent Final Order be denied unless an order is entered as described above.
STONE, LEYTON & GERSHMAN A Professional Corporation
By: /s/ E. Rebecca Case
E. Rebecca Case, EDMO #2800
Howard S. Smotkin, EDMO #4407 7733 Forsyth Boulevard, Suite 500 St. Louis, Missouri 63105 (314) 721-7011 (314) 721-8660 Facsimile
erc@stoneleyton.com
hss@stoneleyton.com
Attorneys for the Murphy Entities
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document has been served electronically in the method established under CM/ECF Administrative Procedures Manual and the Local Court Standing Order dated July 25, 2002, via electronic and/or first class, postage prepaid U.S. mail on this 22nd day of January 2008.
/s/ E. Rebecca Case E. Rebecca Case |
