UNITED STATES BANKRUPTCY COURT DISTRICT OF NEW HAMPSHIRE

Transcription

1 Case: JMD Doc #: 564 Filed: 03/05/13 Desc: Main Document Page 1 of 3 UNITED STATES BANKRUPTCY COURT DISTRICT OF NEW HAMPSHIRE ) In re: Kingsbury Corporation ) Bk. NO JMD Donson Group, Ltd. ) Bk. NO JMD Ventura Industries, LLC ) Bk. NO JMD Debtors. ) Jointly Administered ) MOTION TO APPROVE SETTLEMENT STIPULATION BY AND BETWEEN THE DEBTOR, KINGSBURY CORPORATION AND THE CITY OF KEENE, NEW HAMPSHIRE The City of Keene, New Hampshire (the City ), pursuant to Bankr. R and NH LBR 7101 and , by and through its undersigned counsel, hereby moves this Court to enter an Order, substantially in the form of the Order filed herewith, approving the Settlement Stipulation entered into by the Debtor, Kingsbury Corporation (the Debtor ) and the City (the Stipulation ), a copy of which is attached hereto as Exhibit A, relative to the Debtors : (A) Motion For Authority To Reject Settlement Agreement Between Kingsbury Corporation And City Of Keene Pursuant To 11 U.S.C. 365 (the 365 Motion ); and (B) Motion For Determination Of Tax Liability Pursuant To 11 U.S.C. 505(a) (the 505 Motion) (collectively, the Tax Motions ). In support of this Motion, the City states as follows: 1. This Court has jurisdiction over this matter pursuant to 28 U.S.C. 157 and Venue is proper pursuant to 28 U.S.C and On September 30, 2011 (the Petition Date ), Kingsbury, as well as Ventura Industries, LLC each filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code. On October 3, 2011, Donson Group, Ltd. filed a chapter 11 petition. Pursuant to an order issued on October 6, 2011, all three chapter 11 cases are being jointly administered.

2 Case: JMD Doc #: 564 Filed: 03/05/13 Desc: Main Document Page 2 of 3 3. No trustee or examiner has been appointed in these chapter 11 cases and the Debtors continue to administer their estates as debtors-in-possession pursuant to 1107 and 1108 of the Bankruptcy Code. An official committee of unsecured creditors (the Committee ) was formed on or about October 18, The Debtor filed the Tax Motions on March 6, The Tax Motions sought to challenge the Debtor s tax liability, as well as the assessed value, for the tax years 2009, 2010 and 2011 with respect to property located at 80 Laurel Street, Keene, New Hampshire (the Property ). 5. On September 16, 2012, this Court held preliminary hearing on the Tax Motions and on September 24, 2012, entered a scheduling order [Docket No. 462] with respect to both motions. In that regard, the Court scheduled an evidentiary hearing for January 29, 2013 [Docket No. 526]. 6. Following the January 29, 2013 hearing on the Tax Motions, the Court entered an Order continuing the hearing relative to the 505 Motion [Docket No. 551] and entered a separate Order wherein the 365 Motion was taken under advisement [Docket No. 552]. 7. In the intervening period, the Parties have continued to engage in settlement discussions, which have resulted in the Settlement Stipulation attached as Exhibit A. The Settlement Stipulation, inter alia, resolves the issues raised by the Tax Motions and sets the tax assessed value of the Property for post-petition tax years, thereby ending any uncertainty relative to the tax liability and tax valuation pf the Property. 8. The Parties believe that the prospective resolution is in the best interests of the Debtor, the City and the estate. Upon information and belief, the first position mortgagee, TD Bank, N.A. as well as the creditors Committee have consented to the proposed stipulation. 2

3 Case: JMD Doc #: 564 Filed: 03/05/13 Desc: Main Document Page 3 of 3 WHEREFORE, the City of Keene requests that this Court enter an Order: (1) approving the Stipulation; and (2) granting such other and further relief as justice may require. Respectfully Submitted, The City of Keene, New Hampshire, By its attorney, /s/ Thomas P. Mullins Thomas P. Mullins, Esq. (BNH# 7919) City Attorney City of Keene Legal Department 3 Washington Street Keene, NH (603) tmullins@ci.keene.nh.us and /s/ John D. Finnegan John D. Finnegan, Esq. (BNH# 07247) Tarlow Breed Hart & Rodgers, P.C. 101 Huntington Avenue, Suite 500 Boston, MA (617) jfinnegan@tbhr-law.com Pro Hac Vice Date: March 5,

4 Case: JMD Doc #: Filed: 03/05/13 Desc: Exhibit Exhibit A Page 1 of 7 EXHIBIT A

5 Case: JMD Doc #: Filed: 03/05/13 Desc: Exhibit Exhibit A Page 2 of 7 UNITED STATES BANKRUPTCY COURT DISTRICT OF NEW HAMPSHIRE ) In re: Kingsbury Corporation ) Bk. NO JMD Donson Group, Ltd. ) Bk. NO JMD Ventura Industries, LLC ) Bk. NO JMD Debtors. ) Jointly Administered ) SETTLEMENT STIPULATION BY AND BETWEEN THE DEBTOR, KINGSBURY CORPORATION AND THE CITY OF KEENE, NEW HAMPSHIRE Now come Kingsbury Corporation (the Debtor or Kingsbury ), a debtor and debtor in possession in the above-captioned Chapter 11 cases, and the City of Keene, New Hampshire (the City ), through counsel, and file this Stipulation of Settlement with respect to the Debtor s motion seeking a determination of tax liability with respect to real property taxes allegedly owed and/or assessed on the real property located at 80 Laurel Street, Keene, New Hampshire (the Real Property ) and the Debtor s motion to reject a settlement agreement between the Debtor and the City. In support of this Stipulation, the Parties state as follows: WHEREAS, on September 30, 2011 (the Petition Date ), Kingsbury and Ventura Industries, LLC ( Ventura ) each filed voluntary petitions for relief under Chapter 11 of the Bankruptcy Code in this Court. On October 3, 2011, Donson Group, Ltd. ( Donson ) (collectively, with Kingsbury and Ventura, the Debtors ) filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code and have since operated their businesses as Debtors in possession. WHEREAS, pursuant to an Order entered on October 6, 2011, the Debtors cases are jointly administered under Case No

6 Case: JMD Doc #: Filed: 03/05/13 Desc: Exhibit Exhibit A Page 3 of 7 WHEREAS, on October 18, 2011, the United States Trustee appointed the Official Committee of Unsecured Creditors (the Committee ) to represent the interests of all unsecured creditors of the Debtors. WHEREAS, in the context of a proceeding designated New Hampshire Board of Tax and Land Appeals ( BTLA ) Docket Number PT, filed by Kingsbury prior to the filing of the petition for relief, the Debtor and the City had entered into a settlement relating to a certain 2009 tax year Abatement Request, a certain 2010 tax year Abatement Request, and any prospective abatement requests for the 2011 and later tax years (the BTLA Settlement ). WHEREAS, the BTLA Settlement provided, inter alia, that the assessment of the Real Property for 2009, 2010, and 2011 tax years was established at $4,238, WHEREAS, on January 5, 2012 the City filed a proof of claim for real property taxes due on the Real Property for tax years 2009, 2010, and 2011, in the amount of $401, WHEREAS, on March 6, 2012, Kingsbury filed with the Court a Motion for Authority to Reject Settlement Agreement Between Kingsbury Corporation and City of Keene Pursuant to 11 U.S.C. 365 [Docket Number 304] (the Rejection Motion ), pursuant to which the Debtor sought to reject the BTLA Settlement. WHEREAS, on March 6, 2012, Debtor filed with the Court a Motion for Determination of Tax Liability Pursuant to 11 U.S.C. 505(a) [Docket Number 303] (the 505 Motion ) for tax years 2009, 2010, and WHEREAS, on May 23, 2012, the City filed Oppositions to the Rejection Motion and the 505 Motion [Docket Numbers 374 and 375]. WHEREAS, on September 28, 2012, the City filed an Application for Payment of Administrative Expense Claim [Docket Number 464] in the amount of $133,150.48, relative to

7 Case: JMD Doc #: Filed: 03/05/13 Desc: Exhibit Exhibit A Page 4 of 7 post-petition taxes, costs and expenses that had accrued against the Real Property for tax years 2011 and WHEREAS, on January 29, 2013, this Court held a hearing on the Rejection Motion and the 505 Motion. WHEREAS, Kingsbury and the City have since agreed to settle the controversies that were the subjects of the Rejection Motion and the 505 Motion in accordance with the terms of this Stipulation. NOW, THEREFORE, for good and valuable consideration, the sufficiency of which is hereby acknowledged, Kingsbury and the City expressly stipulate and agree as follows: 1. Each of the undersigned parties represents and warrants that: (i) it has all necessary power and authority to execute and deliver this Stipulation and to perform its respective obligations hereunder; (ii) it has duly executed and validly delivered this Stipulation, and this Stipulation constitutes its legal, valid, and binding obligation; and (iii) except for approval of the Court, no authorization, consent, approval, or other action is or will be necessary as a condition to execution and delivery of this Stipulation and the performance of the obligations hereunder. 2. The BTLA Settlement shall remain in full force and effect with regard to Tax Years 2009 and 2010, and the tax assessed value of the Real Property will remain at Four Million Two Hundred Thirty-eight Thousand One-Hundred and 00/100 Dollars ($4,238,100.00) for Tax Years 2009 and The tax assessed value of the Real Property will be reduced to One Million Five Hundred Thousand and 00/100 Dollars ($1,500,000.00) for tax years 2011 and 2012.

8 Case: JMD Doc #: Filed: 03/05/13 Desc: Exhibit Exhibit A Page 5 of 7 4. The Real Property will continue to be assessed at One Million Five Hundred Thousand and 00/100 Dollars ($1,500,000.00) for tax year 2013, and thereafter until revised in good faith by the City, or until a municipal-wide reassessment. 5. Taxes, interest, and costs due for tax years 2009, 2010, and the first half of 2011, and as accrued for each of those years, shall constitute as an allowed secured claim within the context of the above-captioned bankruptcy proceedings. The second half tax year 2011, and tax year 2012, and as accrued for each year, shall constitute an allowed administrative claim within the context of the above-captioned bankruptcy proceedings, as shall future tax years to the extent the bankruptcy proceedings are then still in effect. Tax year 2013, and future tax years will be billed to and payable by Kingsbury, or subsequent owners of the Real Property, in the ordinary course and in accordance with applicable statutory requirements. 6. The Parties agree to file a Stipulation of Dismissal, with prejudice and without costs to either Party relative to the abatement request appeal pending in the Cheshire County Superior Court, styled Kingsbury Corporation v. City of Keene, Docket No CV Upon approval of this Stipulation, Kingsbury will withdraw the Rejection Motion and the 505 Motion, with prejudice and without costs to either Party. 8. This Stipulation embodies the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior understandings, if any, relating thereto. 9. The parties hereto each declare that the terms of this Stipulation have been completely read, are fully understood, and are voluntarily accepted, after thorough consideration of all facts and legal rights, of which each party has been fully advised by counsel of his or its

9 Case: JMD Doc #: Filed: 03/05/13 Desc: Exhibit Exhibit A Page 6 of 7 choice, for the purpose of making a full and final resolution of all issues relating to any such preferential transfer. 10. The Parties hereby declare and represent that each of them understands and agrees that this Settlement Stipulation is a compromise of disputed claims and that the agreements made hereunder are not to be construed as an admission of liability on the part of any party or entity and that any and all liability is expressly denied. 11. The Stipulation shall become binding and effective in accordance with these terms upon entry of an order of the Bankruptcy Court approving same. 12. All of the recitals stated above are incorporated by reference as if fully set forth herein. This Stipulation constitutes the entire agreement of the parties. No modification, amendment, or waiver of any of the provisions of this Stipulation shall be effective unless in writing and signed by the parties. 13. This Stipulation and the obligations hereunder are subject to the approval of the Bankruptcy Court. REST OF PAGE INTENTIONALLY LEFT BLANK. SIGNATURE PAGE TO FOLLOW

10 Case: JMD Doc #: Filed: 03/05/13 Desc: Exhibit Exhibit A Page 7 of 7 IN WITNESS WHEREOF, Kingsbury Corporation and the City of Keene, New Hampshire, by their respective counsel hereby execute this Stipulation under seal as of March 4, KINGSBURY CORPORATION, DONSON GROUP, LTD., and VENTURA INDUSTRIES, LLC By their attorneys: /S/ Jennifer Rood Jennifer Rood, Esq. BERNSTEIN, SHUR, SAWYER & NELSON Jefferson Mill Building 670 North Commercial Street, Suite 108 PO Box 1120 Manchester, NH (603) and /s/ Robert J. Keach, Esq. Robert J. Keach, Esq. Jessica A. Lewis, Esq. Máire B. Corcoran, Esq. BERNSTEIN, SHUR, SAWYER & NELSON 100 Middle St., PO Box 9729 Portland, Maine (207) THE CITY OF KEENE, NEW HAMPSHIRE, By its attorneys, /s/ Thomas P. Mullins Thomas P. Mullins, Esq. (BNH# 7919) City Attorney City of Keene Legal Department 3 Washington Street Keene, NH (603) tmullins@ci.keene.nh.us and /s/ John D. Finnegan John D. Finnegan, Esq. (BNH# 07247) Tarlow Breed Hart & Rodgers, P.C. 101 Huntington Avenue, Suite 500 Boston, MA (617) jfinnegan@tbhr-law.com Pro Hac Vice

11 Case: JMD Doc #: Filed: 03/05/13 Desc: Certificate of Service Page 1 of 5 UNITED STATES BANKRUPTCY COURT DISTRICT OF NEW HAMPSHIRE ) In re: Kingsbury Corporation ) Bk. NO JMD Donson Group, Ltd. ) Bk. NO JMD Ventura Industries, LLC ) Bk. NO JMD Debtors. ) Jointly Administered ) CERTIFICATE OF SERVICE I, John D. Finnegan, being over the age of eighteen and employed by Tarlow, Breed, Hart & Rodgers, P.C. in Boston, Massachusetts, hereby certify that on this date I caused the within Motion to Approve Settlement Stipulation By and Between the Debtor, Kingsbury Corporation and the City Of Keene, New Hampshire to be filed via the Court s CM/ECF electronic filing system. I further certify that the filed documents were served on this date via CM/ECF upon the parties appearing on the attached Service List, or where the party does not receive CM/ECF notices, by electronic or First Class Mail, postage pre-paid. Dated: March 5, 2013 /s/ John D. Finnegan John D. Finnegan, Esq. (BNH# 07247) Tarlow Breed Hart & Rodgers, P.C. 101 Huntington Avenue, Suite 500 Boston, MA (617) jfinnegan@tbhr-law.com Pro Hac Vice

12 Case: JMD Doc #: Filed: 03/05/13 Desc: Certificate of Service Page 2 of 5 SERVICE LIST Christopher J. Allwarden Senior Counsel, Law Department PSNH 780 North Commercial St. P.O Box 330 Manchester, NH nhlegal@nu.com Representing Public Service Company of NH John R. Baraniak, Jr. Choate, Hall & Stewart LLP Two International Place Boston, MA jbaraniak@choate.com representing Liberty Mutual Insurance Company Fred W. Bopp, III Perkins, Thompson, Hinckley & Keddy, P.A One Canal Plaza P.O. Box 426 Portland, ME fbopp@perkinsthompson.com representing Highlands Fuel Delivery, LLC, d/b/a Irving Energy Distribution and Marketing Maire B. Corcoran Bernstein, Shur, Sawyer & Nelson P.O. Box 9729 Portland, ME mcorcoran@bernsteinshur.com representing Kingsbury Corporation, Donson Group, Ltd. & Ventura Industries, LLC Nicole Horberg Decter Segal Roitman LLP 111 Devonshire Street 5th Floor Boston, MA ndecter@segalroitman.com representing United Auto Workers Local 2232 Kingsbury Corporation 80 Laurel Street Keene, NH (via First Class Mail) Donson Group, Ltd. 197 Eighth Street Suite 850 Boston, MA (via First Class Mail) Ventura Industries, LLC 197 Eighth Street, Suite 850 Charlestown, MA (via First Class Mail) Ann Marie Dirsa Office of U.S. Trustee 1000 Elm Street, Suite 605 Manchester, NH ann.marie.dirsa@usdoj.gov representing Office of the U.S. Trustee Joseph A. Foster McLane, Graf, Raulerson & Middleton 900 Elm Street PO Box 326 Manchester, NH joe.foster@mclane.com representing Diamond Business Credit, LLC 2

13 Case: JMD Doc #: Filed: 03/05/13 Desc: Certificate of Service Page 3 of 5 Lee Harrington Nixon Peabody, LLP 100 Summer St. Boston, MA lharrington@nixonpeabody.com representing Utica Leaseco, LLC (via ) Bruce A. Harwood Sheehan, Phinney, Bass + Green 1000 Elm Street, 17th Floor PO Box 3701 Manchester, NH nhbankruptcycourt@sheehan.com representing Utica Leaseco, LLC Honor S. Heath Northeast Utilities Service Company Legal Department 107 Selden Street Berlin, CT heathhs@nu.com representing Public Service Company of NH Geraldine Karonis Office of U.S. Trustee 1000 Elm Street Suite 605 Manchester, NH USTPRegion01.MR.ECF@usdoj.gov representing Office of the U.S. Trustee Robert J. Keach Berstein, Shur, Sawyer & Nelson 100 Middle Street, PO Box 9729 Portland, ME rkeach@bernsteinshur.com representing Kingsbury Corporation, Donson Group, Ltd. & Ventura Industries, LLC Marc S. Pfeuffer Pension Benefit Guaranty Corp (US Govt) 1200 K Street, N.W. Washington, DC pfeuffer.marc@pbgc.gov representing Pension Benefit Guaranty Corporation Brendan C. Recupero Jager Smith PC One Financial Center Boston, MA brecupero@jagersmith.com representing Official Committee of Unsecured Creditors Steven C. Reingold Jager Smith P.C. One Financial Center Boston, MA sreingold@jagersmith.com representing Official Committee of Unsecured Creditors Jennifer Rood Bernstein Shur 670 N. Commercial St., Ste 108 PO Box 1120 Manchester, NH jrood@bernsteinshur.com representing Kingsbury Corporation, Donson Group, Ltd. & Ventura Industries, LLC Michael A. Stover Wright, Constable & Skeen, LLP 100 North Charles Street 16th Floor Baltimore, MD representing Liberty Mutual Insurance Company (via First Class Mail) 3

14 Case: JMD Doc #: Filed: 03/05/13 Desc: Certificate of Service Page 4 of 5 Jessica A. Lewis Bernstein, Shur, Sawyer & Nelson, PA 100 Middle Street, POB 9729 Portland, ME jlewis@bernsteinshur.com representing Kingsbury Corporation, Donson Group, Ltd. & Ventura Industries, LLC Benjamin E. Marcus Drummond, Woodsum & MacMahon 84 Marginal Way, Suite 600 Portland, ME bmarcus@dwmlaw.com representing Creditor Optimation Technology, Inc. Peter C.L. Roth Environmental Protection Bureau 33 Capitol Street Concord, NH peter.roth@doj.nh.gov representing State of New Hampshire Dept. of Labor Daniel W. Sklar Nixon Peabody LLP 900 Elm Street Manchester, NH dsklar@nixonpeabody.com representing Utica Leaseco, LLC Bruce F. Smith Jager, Smith PC One Financial Center Boston, MA representing Official Committee of Unsecured Creditors (via First Class Mail) Timothy P. Smith 67 Middle St. Manchester, NH tpscli@aol.com representing United Auto Workers Local 2232 Mary T. Sullivan Segal Roitman, LLP 111 Devonshire Street 5th Floor Boston, MA msullivan@segalroitman.com representing United Auto Workers Local 2232 Mark F. Weaver Edmond J. Ford Ford & Weaver, PA 10 Pleasant Street, Suite 400 Portsmouth, NH mweaver@fordandweaver.com eford@fordandweaver.com representing TD Bank, N.A. GA Keen Realty Advisors 1 Huntington Quadrangle Suite 2C04 Melville, NY Beejol Enterprises, Inc Wheaton Drive Colorad Springs, CO Donnelly Penman & Partners Kercheval Ave. Grosse Pointe, MI Moe Freedman State of Michigan, Dept. of Treasury Assistant Attorney General Bill Schuette, Attorney General Cadillac Place, Ste W. Grand Blvd. Detriot, MI

15 Case: JMD Doc #: Filed: 03/05/13 Desc: Certificate of Service Page 5 of 5 Michael S. Askenaizer 29 Factory Street Nashua, NH michael@askenaizer.com Jeffrey T. Piampiano Drummond Woodsum 84 Marginal Way, Suite 600 Portland, ME jpiampiano@dwmlaw.com Andrew S. Nicoll Porter,Wright,Morris &Arthur LLP 41 South High Street, Suite 3100 Columbus, Ohio anicoll@porterwright.com TrueNorth Capital Partners, LLC 40 Richards Ave., 3 rd Floor Norwalk, CT

16 Case: JMD Doc #: Filed: 03/05/13 Desc: Proposed Order Page 1 of 1 UNITED STATES BANKRUPTCY COURT DISTRICT OF NEW HAMPSHIRE ) In re: Kingsbury Corporation ) Bk. NO JMD Donson Group, Ltd. ) Bk. NO JMD Ventura Industries, LLC ) Bk. NO JMD Debtors. ) Jointly Administered ) ORDER APPROVING SETTLEMENT STIPULATION BY AND BETWEEN THE DEBTOR, KINGSBURY CORPORATION AND THE CITY OF KEENE, NEW HAMPSHIRE Upon the Motion of the City of Keene to Approve the Settlement Stipulation entered into by the Debtor, Kingsbury Corporation and the City of Keene, relative to the Debtors : (A) Motion For Authority To Reject Settlement Agreement Between Kingsbury Corporation And City Of Keene Pursuant To 11 U.S.C. 365 (the 365 Motion ); and (B) Motion For Determination Of Tax Liability Pursuant To 11 U.S.C. 505(a) (the 505 Motion); it appearing that the relief requested by the Motion is necessary and in the best interests of the City, the Debtors, their estates, and their creditors; and due notice having been given; and sufficient cause appearing therefor; it is hereby ORDERED, ADJUDGED and DECREED that: 1. The Motion is granted. 2. The Stipulation is approved in its entirety. Signed this day of, 20. The Honorable J. Michael Deasy United States Bankruptcy Judge