HomeMy WebLinkAboutEDWARD J COLEMAN 111 TRUSTEE'S DEED
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Return to: Leonard O. Fletcher, Jr.
Fletcher, Harley & Fletcher, LLP
3529 Walton Way Ext.
Augusta, GA 30909
TITLE NOT EXAMINED
STATE OF GEORGIA
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TRUSTEE'S DEED
COUNTY OF RICHMOND
THIS INDENTURE, made and entered into this
11
day of
July, 2009, by and between EDWARD J. COLEMAN, III, in his capacity as Trustee for the
Bankruptcy Estate of COMMERCIAL AND MILITARY SYSTEMS COMPANY, INC.,
UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF
GEORGIA, Case No. 04-13301-LWD, (COMMERCIAL AND MILITARY SYSTEMS
COMPANY, INC. IS ALSO KNOWN AS COMMERCIAL & MILITARY SYSTEMS
COMP ANY) as party of the first part, and SOUTHEASTERN EQUIPMENT COMPANY,
INC., a Georgia corporation, and ANNE K. SMITH, in her capacity as personal representative
of the ESTATE OF JOHN S. SMITH, as parties of the second part collectively.
WITNESSETH:
WHEREAS, the Debtor filed for relief under Chapter 11 of the United States
Bankruptcy Code on September 14, 2004, and Debtor's case was converted to a case under
Chapter 7 on July 20,2005; and
WHEREAS, the said EDWARD J. COLEMAN, III has been appointed Trustee
ofthe Bankruptcy Estate of the said COMMERCIAL AND MILITARY SYSTEMS
COMPANY, INC., by Order of the United States Bankruptcy Court for the Southern District of
Georgia; and
WHEREAS, the conveyance of the property hereinafter described has been
approved by said United States Bankruptcy Court, as evidenced by a certified copy of its Amended
Order filed July 7, 2009, which is attached hereto as Exhibit "A" and made a part hereof, which
approves said conveyance and compromising the secured claims of SOUTHEASTERN
EQillPMENT COMPANY, INC. and the ESTATE OF JOHN S. SMITH, including those
claims arising pursuant to that Settlement Agreement and Mutual Releases contained in that
certain lawsuit on file in the Superior Court of Richmond County, State of Georgia, captioned
Southeastern Equipment Company, Inc. and John Smith v. Commercial & Military Systems
Company, and Jonie "Hungo" Yu, bearing Civil Action File No. 1999-RCCV-631.
NOW THEREFORE, the party of the first part, for and in consideration of good
and valuable consideration, in hand paid at and before the sealing and delivery of these presents,
the receipt and adequacy of which is hereby acknowledged, has granted, bargained, sold, conveyed
and confirmed, and by these presents does grant, bargain, sell, convey and confirm to the parties of
the second part the property described in Exhibit "B" attached to this Deed.
TOGETHER WITH ALL AND SINGULAR the rights, easements, ways, members and
appurtenances to said land, being, belonging or in any wise appertaining, and the remainders,
reversions, rents, issues and profits thereof, and every part thereof;
TO HAVE AND TO HOLD said land and all and singular the members and
appurtenances thereto belonging as aforesaid, their successors and assigns, forever, in fee simple
in as full and ample a manner as the same was held, possessed and enjoyed or might have been
held, possessed and enjoyed by the said COMMERCIAL AND MILITARY SYSTEMS
COMPANY, INC. AIKAJ COMMERCIAL & MILITARY SYSTEMS COMPANY.
IN WITNESS WHEREOF, the party of the first part has hereunto set his hand and
seal the day and year first above written as the date of these presents.
SIGNED, SEALED AND DELIVERED
in Richmond County, Georgia
in the presence of:
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EDWA J. COLEMAN, III, AS
TR EE for the Bankruptcy
tate of COMMERCIAL AND MILITARY
SYSTEMS COMPANY, INC., UNITED
STATES BANKRUPTCY COURT FOR
THE SOUTHERN DISTRICT OF
GEORGIA, CASE NO. 04-13301-LWD
EXHIBIT 4
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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA ,-:;C} JL:~ -7 PM 3: 08
AUGUSTA DIVISION
INRE:
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CHAPTER 7 CASE
NO.04-13301-LWD
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U.S. OAN;{G:Lr" ~ 1.J I JJu \ I
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SA.HUFL L 1( A Y. CLERK
COMMERCIAL AND MILITARY
SYSTEMS COMPANY, INC.,
Debtor.
AMENDED ORDER ON TRUSTEE'S APPLICATION TO SELL
PROPERTY OF THE ESTATE FREE AND CLEAR OF LIENS. APPLICATION TO
DISBURSE FUNDS TO SECURED CREDITORS AT OR BEFORE CLOSING. AND
APPLICATION TO COMPROMISE CONTROVERSY
TRUSTEE'S APPLICATION TO SELL PROPERTY OF THE ESTATE FREE AND
CLEAR OF LIENS, APPLICATION TO DISBURSE FUNDS TO SECURED CREDITORS AT
OR BEFORE CLOSING, AND APPLICATION TO COMPROMISE CONTROVERSY, having
been read and considered, and it appearing that the sale of the subject property on the terms set
forth in the Application is in the best interest of the bankruptcy estate; And,
This Court having found that (i) the Property sold to Purchaser pursuant to the Purchase
and Sale Agreement, attached to Trustee's Application as Exhibit A, shall be transferred to
Purchaser free and clear of all liens and encumbrances (other than liens created by Purchaser and
Permitted Exceptions, if any) and claims; (ii) the Purchaser has acted in "good faith" within the
meaning of Section 363(m) of the Bankruptcy Code; (iii) said Purchase and Sale Agreement was
negotiated, proposed and entered into by the Purchaser and Trustee without collusion, in good
faith and from arm's length bargaining positions; (iv) the Bankruptcy Court shall retain
jurisdiction to resolve any controversy or claim arising out of or relating to said Contract, or the
breach thereof, and (v) said Purchase and Sale Agreement, and the transactions contemplated
Deputy Clerk, United S ~ Court
(~.~lIthern Diatrid of ~
avoidance by Seller or any chapter 7 or chapter 11 trustee or other representative of Seller; it is
hereby
ORDERED that Trustee's Application to sell the subject property consisting of
approximately 90 acres located off of Mike Padgett Highway in Augusta, Georgia for a purchase
price of $3,300,000.00, cash at closing, and disbursement of the closing costs outlined in the
Application are hereby APPROVED, and the Trustee is authorized to sell such property to either
or both of the named purchasers in the PURCHASE AND SALE AGREEMENT; all valid liens
shall attach to the net proceeds in the same manner and to the same extent as they attached to the
property; it is further
ORDERED that TRUSTEE'S APPLICATION TO DISBURSE FUNDS TO SECURED
CREDITORS AT OR BEFORE CLOSING is hereby APPROVED and the Trustee shall:
1. immediately pay fIrst Regions Bank the amount of $546,544.30, its payoff through
July 15,2009, from estate funds presently on hand;
2. immediately pay the Small Business Administration from estate funds presently on
hand the amount of $298,976.89, to be credited fIrst against interest and the
balance of such payment to be applied against principal as hereinafter provided.
The payoff of SBA as of June 25, 2009 is $846,817.93 of which $701,308.65 is
principal. The SBA has a lien on the 24.7 acre tract located on Windsor Spring
Road and has agreed to defer the sum of $30,000, and any accrued interest
computed at an annual rate of7.368%, from the date of this Order, until the
closing of the property located on Windsor Spring Road. The payment of
$298,976.89 shall be applied to outstanding interest of$145,509.28, with the
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balance of $183,467.61 to be applied to principal, thereby reducing the principal to
$517,841.04, which amount shall satisfy SBA's secured interest against said
property on Mike Padgett Highway ifpaid on or before July 20,2009. Said payoff
of$517,841.04 as of July 20,2009 includes a deferral of $30,000 as noted herein.
Should the closing not occur by July 20,2009, the outstanding principal will be
$547,841.04 with per diem interest, calculated at the appropriate rate from the date
of this Order and thereafter, shall be paid at closing on the sale of the 90 acre tract;
3. then pay, at closing but not before, to Sudimat, S.A. $2,196,542.47, its payoff
through July 20,2009. This amount includes a discount of $30,000. Should the
closing on the Mike Padgett Highway property not occur by July 20,2009, the sum
of $30,000 shall be added to the above payoff amount and per diem interest of
$394.52 shall be calculated from June 30, 2009 and thereafter; however,
the Trustee may withhold estate funds presently on hahd in an amount up to $200,000.00, even if
withholding such funds will result in Sudimat, S.A. not being paid in full at closing; it is further
ORDERED that nothing in this Order will prohibit the secured creditors from voluntarily
reducing their respective payoffs by waiving interest, penalties, attorneys fees or other lawful
charges; it is hereby further
ORDERED that the TRUSTEE'S APPLICATION TO COMPROMISE
CONTROVERSY is APPROVED, and the Trustee is authorized to compromise the secured
claims of SECO and Smith (Claims 24 and 25, as amended) by conveying that IS-acre tract of
land and non-exclusive easement as described on the survey by Toole Surveying Company, Inc.
dated October 13,2006 (and revised March 31,2009), such conveyance to be made
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contemporaneously with the Trustee's closing on the sale of the 90-acre tract as described in this
Application; And,
It is Further ORDERED that this Court retains jurisdiction to resolve any controversy or
claim arising out of or relating to said Purchase and Sale Agreement, or the breach thereof, and
said Purchase and Sale Agreement, and the transactions contemplated hereby may be specifically
enforced against and binding upon, and not subject to rejection or avoidance by Trustee or any
chapter 7 or chapter 11 trustee or other representative of Trustee.
This Order is entered this q/)? day of July, 2009, nunc pro tunc as of the 25th day of
June, 2009.
Honorable Lamar . , Jr., Judge
United States Bankruptcy Court
Southern District of Georgia
Edwar . Coleman, ill, Trustee
Geo la Bar No. 177475
Counsel:
SURRETT & COLEMAN, P.A.
Post Office Box 1497
Augusta, Georgia 30903-1497
Telephone: (706) 722-3301
Facsimile: (706) 722-3318
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COnB~~
J es B. Wall
ttorney for Plaintiff
State Bar No. 733150
BURNSIDE WALL LLP
P.O. Box 2125
Augusta, Georgia 30903
(706) 722-0768
Consented to by:
Mark L. Wilhelmi
Attorney for Regions Bank
State Bar No. 759049
3527 Wheeler Road
Augusta, Georgia 30909
(706) 868-9646
Consented to by:
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Edmund A. Booth, Jr.
Attorney for U.S. Small Business Administration
State Bar No. 068000
United State Attorney
P.O. Box 2017
Augusta, Georgia 30903
(706) 724-0517
ORDER ON TRUSTEE'S APPLICATION TO SELL
PROPERTY OF THE ESTATE FREE AND CLEAR OF LIENS, APPLICATION TO DISBURSE FUNDS TO
SECURED CREDITORS AT OR BEFORE CLOSING, AND APPLICATION TO COMPROMISE
CONTROVERSY 04-13301-LWD
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Frank W. Allen .
Attorney for Southeastern Equipment Company, Inc.
and Anne K. Smith, in her capacity as personal
representative of the Estate of John Smith
State Bar No. 010100
237 Davis Road
Augusta, Georgia 30907
ORDER ON TRUSTEE'S APPLICATION TO SELL
PROPERTY OF THE ESTATE FREE AND CLEAR OF LIENS, APPLICATION TO DISBURSE FUNDS TO
SECURED CREDITORS AT OR BEFORE CLOSING, AND APPLICATION TO COMPROMISE
CONTROVERSY 04-13301-LWD
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EXHIBIT "B"
LEGAL DESCRIPTION OF PROPERTY
ALL THOSE LOT, TRACT OR PARCEL OF LAND, with improvements
thereon, situate, lying and being in Richmond County, Georgia, containing 15
acres and being shown and designated as "TRACT A" on a plat prepared for
SOUTHEAST EQUPMENT COMPANY by Barry A. Toole, R.L.S., dated
October 13,2006, and revised on March 31,2009, and recorded in the Office of
the Clerk of the Superior Court of Richmond County, Georgia, in Plat Book 5,
Page 105, a copy of which is attached hereto. Reference is hereby made to said
plat for a more complete and accurate description as to metes, bounds, distances
and location of said property.
Said property is also shown as the tract labeled with TM #123-0-010-01-0, and
adjacent to the southern portion of that tract labeled as Tract "A" 84.26 acres on a
plat prepared by Barry A. Toole, R.L.S., dated August 22, 2007, and last revised
on June 2, 2009, and recorded in the Office of the Clerk of the Superior Court of
Richmond County, Georgia, in Plat Book 5, Page 102.
TMP Ref: 123-0-010-01-0