Case bjh11 Doc 320 Filed 01/10/19 Entered 01/10/19 21:26:41 Page 1 of 6

Transcription

1 Case bjh11 Doc 320 Filed 01/10/19 Entered 01/10/19 21:26:41 Page 1 of 6 James H. Pulliam North Carolina Bar No North Tryon Street, Suite 2400 Charlotte, North Carolina (facsimile) jpulliam@kilpatricktownsend.com Colin M. Bernardino Georgia Bar No Peachtree Street, Suite 2800 Atlanta, Georgia (facsimile) cbernardino@kilpatricktownsend.com COUNSEL FOR BERKADIA COMMERCIAL MORTGAGE LLC IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION In re: ) Chapter 11 ) SENIOR CARE CENTERS, LLC, et al., ) Case No (BJH) ) (Jointly Administered) Debtors, ) ) Judge Barbara J. Houser ) LIMITED OBJECTION OF BERKADIA COMMERCIAL MORTGAGE LLC TO MOTION OF DEBTORS FOR ENTRY OF INTERIM AND FINAL ORDER (I) AUTHORIZING THE USE OF CASH COLLATERAL, (II) GRANTING ADEQUATE PROTECTION, (III) MODIFYING THE AUTOMATIC STAY, (IV) SETTING A FINAL HEARING, AND (V) GRANTING RELATED RELIEF Berkadia Commercial Mortgage LLC ( Berkadia ) hereby objects on a limited basis (this Limited Objection ) to the Motion of Debtors for Entry of Interim and Final Orders (I) Authorizing the Use of Cash Collateral, (II) Granting Adequate Protection, (III) Modifying the

2 Case bjh11 Doc 320 Filed 01/10/19 Entered 01/10/19 21:26:41 Page 2 of 6 Automatic Stay, (IV) Setting a Final Hearing, and (V) Granting Related Relief (the Motion ) 1 [Dkt. 24]. In support of this Limited Objection, Berkadia states as follows: 1. Through five separate Healthcare Facility Notes (the Notes ) executed by non-debtor borrowers, CHI Javelin Allen LLC, CHI Javelin Frisco LLC, CHI Javelin Winters Park LLC, CHI Javelin Denison LLC and CHI Javelin Vista Ridge LLC (the Non-Debtor Owners ), Berkadia extended financing secured by five nursing home facilities (collectively, the Berkadia Facilities ). Pursuant to a Master Lease Agreement, the Non-Debtor Owners leased the Berkadia Facilities to Debtor PM Management Portfolio VII NC, LLC ( Portfolio ), who subsequently leased the Berkadia Facilities to Debtors PM Management Allen NC, LLC, PM Management Denison NC, LLC, PM Management Garland NC, LLC, PM Management - Frisco NC, LLC, and PM Management - Lewisville NC, LLC (collectively, the Operating Debtors and with Portfolio, the Berkadia Debtors ) under the terms of five separate Sublease Agreements. 2. The loans for the Berkadia Facilities are guaranteed by the U.S. Department of Housing and Urban Development ( HUD ). In accordance with HUD regulations and applicable law, HUD required each of the Operating Debtors to execute a Healthcare Regulatory Agreement Operator (the Regulatory Agreement ) establishing parameters for the operational and financial management of the Berkadia Facilities in compliance with HUD regulations and applicable law. 3. The Non-Debtor Owners obligations to Berkadia owed under the Notes, 2 are secured by, among other things, a Healthcare Deed of Trust, Assignment of Leases, Rents, and Revenue and Security Agreement executed by each Non-Debtor Owner in favor of Berkadia with 1 Capitalized terms not otherwise defined herein shall have the meanings given to them in the Motion. 2 The original principal amounts owed on the Notes for the Berkadia Facilities was $9,280,000 for the Victoria Gardens of Allen (CHI Javelin Allen LLC), $6,680,000 for the Victoria Gardens of Frisco (CHI Javelin Frisco LLC), $9,440,000 for the Winters Park Nursing and Rehabilitation Center (CHI Javelin Winters Park LLC), $4,480,000 for The Homestead of Denison (CHI Javelin Denison LLC), and $4,160,000 for the Vista Ridge Nursing and Rehabilitation Center (CHI Javelin Vista Ridge LLC). 2

3 Case bjh11 Doc 320 Filed 01/10/19 Entered 01/10/19 21:26:41 Page 3 of 6 respect to each of the Berkadia Facilities. The Operating Debtors each also executed an Operator Security Agreement further securing the obligations to Berkadia by, among other things, the cash, cash proceeds, deposit accounts, bank accounts, accounts receivable, certificates of deposit, general intangibles, chattel paper, instruments, and rights to payment arising from the Berkadia Facilities (collectively, the Berkadia Cash Collateral ). 3 Berkadia s security interests in the foregoing were perfected through the filing of each of the Healthcare Deed of Trust Assignment of Leases, Rents and Revenue and Security Agreement and an Assignment of Leases and Rents with the County Clerk for each of the Berkadia Facilities, the filing of financing statements with the Texas Secretary of State and with the County Clerk for each of the Berkadia Facilities, the Operator Security Agreement, and Blocked Account Agreement Government Deposit Account, Blocked Account Agreement Commercial Blocked Account. 4. Berkadia, CIBC, the Berkadia Debtors, and the Non-Debtor Owners are parties to a certain Intercreditor Agreement, dated as of December 15, 2017 (the Intercreditor Agreement ). Pursuant to the Intercreditor Agreement, CIBC holds a senior security interest in the Berkadia Debtors accounts receivable. However, Berkadia is unaware of any other parties claiming interests in the Berkadia Cash Collateral. Thus, Berkadia holds a valid and perfected, secondpriority security interest in the Berkadia Debtors accounts receivable and a first-priority security interest any other Berkadia Cash Collateral. 5. Although the Motion and the Declaration of Kevin O Halloran, Chief Restructuring Officer of Senior Care Centers, LLC, In Support of Chapter 11 Petitions and First Day Pleadings in support of the Motion make no reference to the Berkadia Debtors obligations to Berkadia, it is 3 Additionally, Berkadia was granted an interest, in among other things, Berkadia Facilities skilled nursing facility licenses and any other healthcare or long term care licenses, all Medicare and Medicaid/state/county provider agreements, the Berkadia Debtors lease agreements, and furniture, fixtures, equipment, software, and inventory. 3

4 Case bjh11 Doc 320 Filed 01/10/19 Entered 01/10/19 21:26:41 Page 4 of 6 Berkadia s understanding that the Berkadia Facilities continue to be operated. 4 The Debtors have not requested Berkadia s consent to their use of the Berkadia Cash Collateral. Thus, the Motion should be denied to the extent the Debtors seek to use Berkadia s Cash Collateral without Berkadia s consent or the provision of adequate protection of Berkadia s security interests for such use. However, Berkadia is open to discussions with the Debtors regarding consensual use of the Berkadia Cash Collateral if, among other things, ordinary lease payments and debt service continue with respect to the Berkadia Facilities and the obligations under the Notes, monthly provision of an accounting of the use of any Berkadia Cash Collateral (including since the Petition Date), and the granting of replacement liens. Berkadia anticipates that continued compliance with each Regulatory Agreement would be a condition of consent to such usage. 6. Moreover, because the Debtors in these proceedings have not been substantively consolidated (nor does Berkadia believe such consolidation is appropriate), Berkadia further objects to the Budget proposed in the Motion to the extent there is no allocation of administrative expenses among the Debtors as the Berkadia Cash Collateral should not be used to fund the administrative expenses of the non-berkadia Debtors. See In re Las Torres Dev., L.L.C., 413 B.R. 687 (Bankr. S.D.Tex. 2009) (explaining that, notwithstanding provisions of adequate protection, cash collateral of one debtor may not be used to fund the expenses of another non-substantively consolidated debtor). 4 The Motion references two agreements to Berkadia is a party: that certain Blocked Account Agreement (Government Deposit Account) dated as of December 15, 2017 by and among CIBC Bank USA (as AR Lender and depository bank), Berkadia Commercial Mortgage LLC and PM Management Allen NC, LLC, PM Management Denison NC, LLC, PM Management Frisco NC, LLC, PM Management Garland NC, LLC, PM Management Lewisville NC, LLC, and PM Management Portfolio VI NC, LLC; and Blocked Account Agreement (Commercial Blocked Account) dated as of December 15, 2017 by and among CIBC Bank USA (as AR Lender and depository bank), Berkadia Commercial Mortgage LLC and PM Management Allen NC, LLC, PM Management Denison NC, LLC, PM Management Frisco NC, LLC, PM Management Garland NC, LLC, PM Management Lewisville NC, LLC, and PM Management Portfolio VI NC, LLC. See Motion, Ex. 1. 4

5 Case bjh11 Doc 320 Filed 01/10/19 Entered 01/10/19 21:26:41 Page 5 of 6 WHEREFORE, for the foregoing reasons, Berkadia respectfully requests that this Court (I) deny the Debtors Motion to the extent it seeks to use the Berkadia Cash Collateral without Berkadia s consent or the adequate protection of Berkadia s interests (including an accounting of the use of Berkadia Cash Collateral and the granting of replacement liens); (II) deny the Debtor s Motion to the extent it seeks to use the Berkadia Cash Collateral without an appropriate apportionment of the Debtors administrative expenses among the Debtors; and (III) grant such other and further relief in favor of Berkadia as is just and proper. Dated: January 10, 2019 /s/ Colin M. Bernardino Colin M. Bernardino Georgia Bar No Peachtree Street, Suite 2800 Atlanta, Georgia (facsimile) cbernardino@kilpatricktownsend.com James H. Pulliam North Carolina Bar No North Tryon Street, Suite 2400 Charlotte, North Carolina (facsimile) jpulliam@kilpatricktownsend.com Counsel for Berkadia Commercial Mortgage LLC 5

6 Case bjh11 Doc 320 Filed 01/10/19 Entered 01/10/19 21:26:41 Page 6 of 6 CERTIFICATE OF SERVICE I hereby certify that on July 10, 2019, the foregoing Limited Objection of Berkadia Commercial Mortgage. LLC to the Motion of the Debtors for Entry of Interim and Final Order (I) Authorizing the Use of Cash Collateral, (II) Granting Adequate Protection, (III) Modifying the Automatic Stay, (IV) Setting a Final Hearing, and (V) Granting Related Relief was filed electronically. Notice of this filing will be sent by operation of the Court s electronic filing system to all parties indicated on the electronic filing receipt. /s/ Colin M. Bernardino Colin M. Bernardino Counsel for Berkadia Commercial Mortgage LLC