18-5009-rbk Doc#28 Filed 03/27/18 Entered 03/27/18 11:18:39 Main Document Pg 1 of UNITED STATES BANKRUPTCY COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION In re: Chapter 11 A GACI, L.L.C., Case No. 18-5009-rbk Debtor. LIMITED OBJECTION TO CURE AMOUNT BY US REAL ESTATE LIMITED PARTNERSHIP US Real Estate Limited Partnership (the Landlord ), by and through undersigned counsel, files this Limited Objection to Cure Amount relating to the premises described below (the Limited Objection ), and states as follows: BACKGROUND 1. The Landlord and A gaci, LLC (the Debtor ) are parties to that certain lease agreement for a 238,000 square foot distribution center located at 10939 Fischer Road, Von Ormy, Texas 78073 (the Lease ) 2. On January 9, 2018 (the Petition Date ), the Debtor filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code before the United States Bankruptcy Court for the Western District of Texas (the Bankruptcy Court ). 3. On March 9, 2018, the Debtor filed a Notice of (I) Debtor s Request for Authority to Assume and Assign Certain Executory Contracts and Unexpired Leases, and (II) Debtor s Proposed Cure Amounts (the Notice ) [ECF No. 198] which listed the Landlord and Lease, and proposed cure amounts at Line #101 referenced as store #9925.. The Notice further provides that the deadline to object to the Debtor s proposed cure amount is March 22, 2018 at 5:00 p.m. (Prevailing Central Time). Counsel for Debtor agreed to extend the objection deadline for Landlord to object to the cure notice until March 27, 2018 to
18-5009-rbk Doc#28 Filed 03/27/18 Entered 03/27/18 11:18:39 Main Document Pg 2 of allow the parties to attempt to resolve issues. OBJECTION 5. Debtor s proposed cure amount is incorrect. Debtor s proposed cure amount is $13,809.70. However, the correct cure amount is $562,067.19. See attached Exhibit 1, attached hereto and incorporated into this Objection by reference. 6. Further, Landlord objects to the Debtor s proposed cure amount to the extent such amounts do not include: i) indemnification obligations or defaults under the Leases not presently known to the Landlords, if any (e.g. damages to premises, mechanics/materialman liens arising from acts of the Debtor, personal injury claims, etc.); ii) amounts that have not yet become due to Landlord pursuant to the Leases or applicable law but that may become due prior to any proposed assumption of the Leases and that are not paid in accordance with 11 U.S.C. 365(d); and iii) any applicable attorneys fees incurred in connection with the enforcement of the Landlord s rights under the Leases. 7. This Limited Objection is without prejudice to, and any assumption must be subject to, Landlord s rights pursuant to the Lease, any amendment agreed to by the Landlord and the Debtor, applicable law, and any obligations due to the Landlord arising therefrom 8. Further, any order approving the assumption of the Lease must provide that, in addition to payment of the actual cure amount, the Debtor shall be liable for any unbilled charges, and pay all year-end adjustments and other charges when due under the Lease, regardless of when the charges accrued 9. Landlord reserves the right to amend or supplement the Limited Objection.
18-5009-rbk Doc#28 Filed 03/27/18 Entered 03/27/18 11:18:39 Main Document Pg 3 of WHEREFORE, Landlord respectfully requests that the Court sustain the Limited Objection, require payment of cure amounts consistent herewith as a condition to the assumption of the Lease, and grant such other and further relief as is just and proper. Dated: March 27, 2018, ERIC TERRY LAW, PLLC 3511 Broadway San Antonio, Texas 78209 Telephone: (210) 68-827 Facsimile: (210) 319-57 /s/ Eric B. Terry Eric B. Terry State Bar No. 0079729 ATTORNEYS FOR US REAL ESTATE LIMITED PARTNERSHIP and USAA REAL ESTATE COMPANY CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing was served, in accordance with the Federal Rules of Bankruptcy Procedure, via email upon the parties that receive electronic notice in this case pursuant to the Court s ECF filing system on this 27 th day of March, 2018 including the parties on the attached service list. /s/ Eric B. Terry Eric B. Terry
18-5009-rbk Doc#28 Filed 03/27/18 Entered 03/27/18 11:18:39 Main Document Pg of Counsel for Debtor Ian T. Peck David L. Staab Haynes and Boone LLP 2323 Victory Ave, Suite 700 Dallas, TX 75219 ian.peck@haynesboone.com david.staab@haynesboone.com Counsel for Chase W. Steven Bryant Locke Lord LLP 600 Congress Avenue, Ste. 2200 Austin, TX 78701 sbryant@lockelord.com Counsel to the Committee Richard Lauter Emily S. Chou Lewis Brisbois Bisgaard & Smith LLP 2100 Ross Ave., Suite 2000 Dallas, TX 75201 richard.lauter@lewisbrisbois.com emily.chou@lewisbrisbois.com Counsel to Bank of America Steve A. Peirce Norton Rose Fulbright, (US) LLP 300 Convent, Suite 2100 San Antonio, Texas 78205 steve.peirce@nortonrosefulbright.com Service List Counsel to the Office of the United States Trustee Kevin Epstein Office of the United States Trustee for the Western District of Texas 615 E. Houston Street, Suite 533 San Antonio, Texas 78205
18-5009-rbk Doc#28-1 Filed 03/27/18 Entered 03/27/18 11:18:39 Exhibit 1 Pg 1 of 2 Aging Detail DB Caption: PRODUCTION Age As Of: 03/31/2018 Post To: 03/2018 Property Customer Lease Status Tran# Charge Date Month Current 0-30 31-60 61-90 Over Pre- Total AGaci Distribution Center (86500) A'Gaci, LLC (80910600) Code Owed Owed Owed Owed 90 Owed payments Owed 86500 A'Gaci, LLC Current R-53215 Prepay 12/6/2017 12/2017 0.00 0.00 0.00 0.00 0.00-1,1.18-1,1.18 Check for this amount received on 12/6/17. Current balance was $0 86500 A'Gaci, LLC Current C-1800106 prior 3/1/2018 03/2018 32,770.65 32,770.65 0.00 0.00 0.00 0.00 31,626.7 2017 CAM reconciliation-cam 86500 A'Gaci, LLC Current C-1800107 priortax 3/1/2018 03/2018 525,727.33 525,727.33 0.00 0.00 0.00 0.00 557,353.80 2017 CAM reconciliation-tax 86500 A'Gaci, LLC Current C-1800108 priorins 3/1/2018 03/2018,713.39,713.39 0.00 0.00 0.00 0.00 562,067.19 2017 CAM reconciliation-insurance A'Gaci, LLC 563,211.37 563,211.37 0.00 0.00 0.00-1,1.18 562,067.19 EXHIBIT 1
18-5009-rbk Doc#28-1 Filed 03/27/18 Entered 03/27/18 11:18:39 Exhibit 1 Pg 2 of 2 3/27/2018 10:53 AM Current balance was $0. Page 2 of 2