UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

Transcription

1 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION IN RE: Case No EAGLE BROADBAND, INC. et al., Chapter 11 Debtors. (Jointly Administered) MOTION TO EXTEND TIME TO ASSUME OR REJECT UNEXPIRED LEASES OF NONRESIDENTIAL REAL PROPERTY A HEARING WILL BE CONDUCTED ON THIS MATTER ON MARCH 12, 2008, AT 3:00 PM IN COURTROOM 401, 515 RUSK, HOUSTON, TEXAS. IF YOU OBJECT TO THE RELIEF REQUESTED, YOU MUST RESPOND IN WRITING, SPECIFICALLY ANSWERING EACH PARAGRAPH OF THIS PLEADING. UNLESS OTHERWISE DIRECTED BY THE COURT, YOU MUST FILE YOUR RESPONSE WITH THE CLERK OF THE BANKRUPTCY COURT WITHIN TWENTY-THREE DAYS FROM THE DATE YOU WERE SERVED WITH THIS PLEADING. YOU MUST SERVE A COPY OF YOUR RESPONSE ON THE PERSON WHO SENT YOU THE NOTICE; OTHERWISE, THE COURT MAY TREAT THE PLEADING AS UNOPPOSED AND GRANT THE RELIEF REQUESTED. TO THE HONORABLE LETITIA Z. CLARK, UNITED STATES BANKRUPTCY JUDGE: COME NOW, Eagle Broadband, Inc. ( EBI ) and its eleven wholly-owned Subsidiaries 1 (collectively with EBI, the Debtors ) and file this Motion to Extend Time to Assume or Reject Unexpired Leases of Nonresidential Real Property pursuant to 11 U.S.C. 365(d)(4) and respectfully represent as follows: 1 Subsidiaries when used herein means Atlantic Pacific Communications, Inc.; Clearworks Communications, Inc.; Clearworks Home Systems, Inc.; Clearworks.Net, Inc.; DSS Security d/b/a Eagle Broadband Security; Eagle Broadband Services, Inc.; EToolz, Inc.; Link-Two Communications, Inc.; Northpointe Telecom Services, LLC; UCGI Corporation; and United Computing Group, Inc.

2 RELIEF REQUESTED 1. Debtors request a 90-day extension under 11 U.S.C. 365(d)(4)(B) to assume or reject unexpired leases of nonresidential real property. The Debtors filed the instant chapter 11 case on November 14, 2007 and the 120-day deadline to assume or reject leases for nonresidential real property under 11 U.S.C. 365(d)(4) is Thursday, March 13, The Debtors have two unexpired leases of office and/or warehouse space and two unexpired service/lease agreements related to their IPTV business. 3. Because the Debtors have not yet secured a buyer for their IPTV business, the Debtors request an additional 90 days to assume or reject these leases. THE OFFICE/WAREHOUSE LEASES 4. The instant chapter 11 case was filed on November 14, 2007 (the Petition Date ), and at all times thereafter the Debtors have operated their business as debtors in possession. 5. As reflected in the Schedules filed in this case, the Debtors have an office and warehouse lease located at 3233 W. 11th Street, Suite 1000, Houston, Texas with Alliance Maintenance & Services, Inc. The Debtors have complied with all provisions of this lease and are current on this lease. 6. In addition, the Debtors have a lease for office space at 1922 North Great Southwest Parkway, Grand Prairie, Texas with Jerry T. Ridnour d/b/a The Ridnour Company. The Debtors have complied with all provisions of this lease and are current on this lease. THE IPTV-RELATED LEASES 7. As reflected in the Schedules filed in this case, the Debtors have an agreement with Newcom International ( Newcom ) that Newcom will provide EBI with co-location

3 services for its Miami IPTV headend, downlink services, and Ethernet connection. In connection with these services, Newcom leases EBI pad space for antennas, 160 square feet of indoor space for components, and roof edge space for more antennas (the Newcom Agreement ). The Debtors have complied with all provisions of the Newcom Agreement, except that the Debtors are two months behind on the servicing fee. The Debtors intend to bring Newcom current with the proceeds of a sale of the IPTV business. 8. As reflected in the Schedules filed in this case, the Debtors have an agreement with TerreNAP for Ethernet service related to the Miami headend and IPTV business ( TerreNAP Agreement ). As with the Newcom Agreement, this agreement with TerreNAP includes lease of space for location of equipment. The Debtors have complied with all provisions of the TerreNAP Agreement, except that the Debtors are three months behind on the servicing fee. The Debtors intend to bring TerreNAP current with the proceeds of a sale of the IPTV business. ARGUMENT & AUTHORITIES 9. Pursuant to 11 U.S.C. 365(d)(4), if a lease of nonresidential real property is not assumed within 120 days of the Petition Date, the lease will be deemed rejected and the lessee is thus required to immediately surrender possession of the property. In the instant case, the 120- day period will end on March 13, However, pursuant to 11 U.S.C. 365(d)(4)(B), upon a motion duly made and order entered within the 120-day period, the time during which the lease can be assumed or rejected may be extended for an additional 90 days. 10. Newcom s and TerreNAP s services are vital to the Debtors IPTV business. Without these services, there are no television signals to be broadcast over the internet to customers homes.

4 11. Currently, the Debtors are marketing the IPTV business to various prospects. The Debtors intend to fund their plan or reorganization partly with the proceeds of the sale of the IPTV business. Because the Debtors have not finalized a sale of the IPTV business, it is uncertain at this time whether, pursuant to a plan, the above-mentioned leases will be assumed or rejected. For example, it is anticipated that a sale of the IPTV business would include assigning both the Newcom Agreement and TerreNAP Agreement to the buyer. 12. If the Debtors are required to surrender possession of their co-location spaces for the Miami IPTV headend before the proposal and confirmation of a plan, the value of the IPTV business will be greatly impaired and the likelihood for a feasible plan will be significantly reduced. WHEREFORE, PREMISES CONSIDERED, the Debtors pray that the period of time during which the unexpired nonresidential real property leases may be assumed or rejected be extended for a period of 90 days from March 13, 2008, and that they have such other and further relief as is just. Dated: February 18, Respectfully submitted, /s/ Heather McIntyre Wayne Kitchens TBN David Askanase TBN Heather McIntyre TBN HUGHESWATTERSASKANASE, LLP Three Allen Center 333 Clay Street, 29th Floor Houston, Texas Tel: Fax: COUNSEL FOR EAGLE BROADBAND, INC. AND ITS SUBSIDIARIES

5 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument was served on the parties listed on the attached Service List by first class mail, postage prepaid and/or ECF on February 18, /s/ Heather McIntyre Heather McIntyre