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I wonder if Tony Isaac is related to Jon Isaac.
R/S and conversion of $21mm worth of shares.
yes. Would mean more insiders. Pay attention to share structure if they emerge. Commons may end up with very little ownership.
Yes. And I value your input as well BioHunter.
Judge can grant an assignment. If conditions are met.
Don't know is there was an assignment proposal for Barker 12 lease.. If so landlord would still have to consent to the release of liability. For example Stonehollow could have been taken out of the equation with a release of liability from Langley. Nothing should have stopped them.
For clarification, Langley agreed to partially assume the lease obligations for the Braker Facility Lease pursuant to a sublease, but the landlord refused to approve the sublease of the Braker Facility Lease to Langley, and the sublease was not executed. However, Langley agreed to close on the sale without the sublease of that facility. As a result, P10 is still obligated to make payments under the lease for our headquarters, although Langley is currently making payments to us in the same amount.
The landlord has notified us that it considers us in breach of the lease agreement for the facility.
https://www.otcmarkets.com/edgar/GetFilingHtml?FilingID=11929565
It would be in the best interest of Braker to see P10 survive seeing how P10 will still be tied to the leases.
I guess judge can decide who is being far and who is not.
poor broke bloke, Judge ruled on procedural motions. Braker will have their day court to object on the Braker 12 lease. Some think landlord is on board with the assignment and liability release. If that were true, you don't need a court to settle this matter. A piece of paper to amend the Stonehollow lease would fix that lease. Tear up the Braker 12 lease and write a new one for Langley. That's all it takes. P10 may get away with having lease assigned, but liability release? doubt it. It's all about precedent.
http://legal-dictionary.thefreedictionary.com/Precedent
Landlord will protect their interests and they should. P10 shouldn't have extended Braker 12 lease. Should have down sized to a smaller building, shorter term and let that lease run out. The investment from 210 hinges on liability release(which can be waived). The point I am trying to make is, the law is not on p10's side on this one. When you assign a lease it follows you till it expires. Courts have held this to be true time after time even in bankruptcy.
You have it mostly right.
Here is the problem. The Stonehollow lease was already assigned in accordance to the lease which holds P10 liable for performance. This is a done deal. Shouldn't have anything to do with anything now.
The Barker 12 lease was just extended sometime last year, easement for additional parking they paid for was canceled back In May. It is clear from the APA that Langley don't need nor want this lease. Sublease 1/3 sublease 2/3. No landlord would want this situation. This still would not release P10 from liability. The writing is on the wall. This why the landlord is not cooperating.
Langley does not have the authority to release P10 from their liability only the landlord can do this. BK court has already set precedent on this matter.
https://www.justice.gov/usam/civil-resource-manual-60-executory-contracts-bankruptcy
210 will have to wave the liability contingency for Stonehollow and work out a deal with landlord to buyout the Barker 12 lease. IMO of course.
Ok. Show the folks where it specifically says Levy Barker agreed to the RSA's and I'll show you where it only says Langley and 210 have agreed. I don't think this judge is going to overturn precedent just for you.
Wishful thinking. The contract is between Levy Barker and p10 aka. Active Power. Langley has no authority the release any liability p10 has with Barker. common sense.
They have two choices. Reject contracts or assume contract. In order to assign a contract they must assume it first. if they reject the contract that would automatically put them in default. What I posted is called precedent. These issues have been ruled on in the past. Cases are there to look up.
The Stonehollow lease has already been assigned to Langley in accordance to the lease. done deal.
Judges have said in their rulings If you assume a contract you assume it in it's entirely. not parts of it. They can not change the terms of the lease. Period!
This is your downside.
A party who assumes an executory contract must assume it in its entirety; it may not be assumed in part and rejected in part. NLRB v. Bildisco & Bildisco, 465 U.S. 513, 531 (1984); Department of the Air Force v. Carolina Parachute Corp., 907 F.2d 1469, 1472 (4th Cir. 1990); In re Chicago, R.I. & Pac. R.R., 860 F.2d 267, 272 (7th Cir. 1988); Richmond Leasing Co. v. Capital Bank, 762 F.2d 1303, 1311 (5th Cir. 1985); In re B & L Oil Co., 782 F.2d 155, 157 (10th Cir. 1987); Lee v. Schweiker, 739 F.2d 870, 876 (3d Cir. 1984); In re Leslie Fay Companies, Inc., 166 B.R. 802, 808 (Bankr. S.D.N.Y. 1994); In re Village Rathskeller, 147 B.R. 665, 671 (Bankr. S.D.N.Y. 1992). In other words, a debtor cannot assume the benefits of an executory contract without assuming its burdens as well. See, e.g., Covington v. Covington Land L.P., 71 F.3d 1221, 1226 (6th Cir. 1995) ("When a debtor assumes the lease or contract under § 365, it must assume both the benefits and the burdens of the contract. Neither the debtor nor the bankruptcy court may excise material obligations owing to the non-debtor contracting party."); In re Pacific Exp. Inc., 780 F.2d 1482 (9th Cir. 1986); In re Godwin Bevers Co., Inc., 575 F.2d 805, 807 (10th Cir. 1978) (trustee who accepts executory contract takes burdens with benefits); In re Fitch, 174 B.R. 96, 101 (Bankr. S.D. Ill. 1994) ("debtor cannot change the nature of a contract merely by ... assum[ing] it ... debtor may not 'conditionally' assume such a contract, and ... must assume its burdens as well as its benefits"); In re Monroeville Dodge, Ltd., 166 B.R. 264, 267 (E.D. Pa. 1994) (debtor-in-possession takes contract cum onere); In re MacDaniel, 89 B.R. 861, 863 (Bankr. E.D. Wash. 1988); In re Maine, 32 B.R. 452, 455 (Bankr. W.D.N.Y. 1983); In re Yonkers Hamilton Sanitarium, Inc., 22 B.R. 427 (Bankr. S.D.N.Y. 1982). The debtor must perform "in full, just as if the bankruptcy had not intervened." In re Frontier Properties, 979 F.2d 1358, 1367 (9th Cir. 1992); In re Airlift Int'l, 761 F.2d 1503 (11th Cir. 1985); In re Steelship Corp., 576 F.2d 128, 132 (8th Cir. 1978).
The hearing tomorrow is on the Motion to Expedite and Emergency Motion.
These are procedural and preliminary issues.
NOTICE OF MEETING OF CREDITORS., a meeting of creditors and equity security holders pursuant to Bankruptcy Code § 341 will be conducted in the Chapter 11 Case on April 17, 2017 at 10:00 am at 615 E. Houston, Rm 333, San Antonio, TX.
http://media.wix.com/ugd/cd6d58_a8becd74efd849f7a562e65154dc270a.pdf
This is where I think 210 my accept an assignment without releasing P10 of liability in case of a default.
"Via motion rather than pursuant to the plan"
So if the landlord wont cooperate at all even an assignment, judge can force an assignment. This would give Langley, P10, 210 time to market property to find someone to take the whole building. Liability would still be there till 2021. I just think this the venue for a landlord tenant problem.
6. If the Debtor seeks to assume and assign the Braker Lease via motion rather than pursuant to the Plan, a Final Order approving the assumption and assignment of the Braker Lease shall have been entered.
C. Waiver of Conditions. Each of the conditions set forth in Articles XIV(A) and XIV(B) of this Prepackaged Plan may be waived in whole or in part by the Debtor with the written consent of 210 after five (5) days’ notice to the Bankruptcy Court and parties in interest who have entered an appearance in the Chapter 11 Case but without the need for a hearing.
https://media.wix.com/ugd/cd6d58_0a6ab59105624d4fbe7303bc1f9b11a0.pdf
I believe previous poster get the best advice. take profit when you can and let the free shares ride it out. I think a deal could be reached between the landlord and tenant and still keep the outside investor involved. As long as the tenant hasn't burned the bridge down completely with the landlord. The APA has a section in it that says Langley will release P10 of any and all liabilities, but it doesn't specifically say the lease. they can not promise that. Only the landlord can release P10 from lease liability. That's why they want a BK judge to do that.
NOL's yes. I guess shareholder value is in the eye of the shareholder.
Basically. Looks like Stonehollow lease was assigned, but p10 is still liable in case of a default. There was no agreement on the Barker 12 lease. P10 now wants a lease assignment for Barker 12 and no liability for both. Not only do they not have a business to reorganize. Intent has been established on what Langley wants to do with the Barker 12 property. I see conflicts in the APA and RSA's. that is were intent comes into play.
This case should get dismissed and handled outside of BK. P10 or Active Power should have filed chapter 11 before selling the assets. Would have had a better chance of getting a favorable outcome on lease's.
Forget about the state taxes. You do your federal tax first. If after you can show no taxable income from your federal taxes you won't have state taxes. Texas is a tax free state so is Delaware. The chairman living in California receives income from company so he would file his own personal taxes in the state he lives. this is separate from corporate tax filings.
If I show you. Will you believe?
Here it is.
One of the conditions to the enforceability of the 210 RSA
is that the Debtor file a motion to assume the 210 RSA and obtain approval from the Bankruptcy
Court on or before April 7, 2017. If the 210 RSA is not authorized by the Bankruptcy Court on
or before April 7, 2017, 210 will not be obligated to consummate the transactions contemplated
in the 210 RSA.
Section 13.
http://docs.wixstatic.com/ugd/cd6d58_1781d940f7c94fe1bf5a1f42de6114a5.pdf
The 210 deal was contingent that they get court approval on or before April 7th. As per court filings.
We shall see by the end of next week. GLTU.
Right, but it's not up to Langley it's up to the Barker's. The lease is between P10 and Barker bros. It would take 50 to 70% of the total value of what the lease is worth $6mil to do a buyout. That would release everyone from the contract. This is what the Barker's are looking for. IMO. See BK is a cheaper gamble for P10. Do some looking on net for Texas as a landlord friendly state.
210 is a smart investor. You need to sit on both sides of the fence. Imagine if you were the landlord in this situation. You just granted your tenant a 5 year extension, now they want out. The buyer of your assets don't want nor need your building. Your tenant came up with a scheme to sublease without permission to a foreign entity that will probably disappear in the middle of the night and run back home to England. An assignment would work but that would require P10 to still be liable if Langley defaulted on lease. This is standard practice in a lease assignment. It is easier to chase down a domestic co. then a foreign co. As a landlord you would want to insist P10 stay attached to lease. 210 don't want this. That why they are asking the judge to reject the lease and allow Langley to take over and release P10. In Texas the law in in the landlords favor. If the lease wasn't an issue anymore stock price would be in the $3's and $4's right now. IMO. This whole deal is at risk. P10 should have had this squared away before they announced asset sale. Not trying to cause harm in your stock price. This will be investable when Lease is taken care of. P10 needs to reverse merg or assemble profitable business's to take advantage of those NOL's.
Sorry have a free account and can not PM.
Then ask this author what he mean by this statement.
P10, which trades under the "PIOI" ticker on over-the-counter markets, is seeking to shed its contingent liabilities through bankruptcy, including the lease for its former headquarters at 2128 Braker Lane in North Austin.
http://www.bizjournals.com/austin/news/2017/03/28/in-wake-of-big-asset-sale-austin-company-brings-in.html
No need to shed the lease through bankruptcy if everyone agreed to assign lease to Langley and let P10 off hook.
There would be no reason to file BK if the Landlord was cooperating. Landlord is in the drivers seat on this one. Court filings would indicate that Barker agreed if that was the case. You still haven't shown me where Barker consented to an assignment. Should be stated somewhere. Right?
LOL. It says the legacy purchaser(Langley) will receive from debtor(p10) $1million. Again. Says nothing about Barker agreeing to anything.
Don't look like it to me. sec. 44.
http://docs.wixstatic.com/ugd/cd6d58_3451419adc1d4690bffe3c0396c72f6c.pdf
Please provide link to the $820k.TIA
Don't count on it. IMO lease buyout is only option.
15. ASSIGNMENT AND SUBLETTING.
A. Tenant shall not assign, sublease, transfer or encumber this Lease or
any interest therein without the prior written consent of Landlord, which
consent shall not be unreasonably withheld. Any such attempted assignment in
violation of the terms and covenants of this Paragraph shall, exercisable in
Landlord's sole and absolute discretion, be voidable. If Tenant requests
Landlord's consent to an assignment or sublease, Tenant shall submit to
Landlord, in writing, the name of the proposed assignee or subtenant and the
nature and character of the business of the proposed assignee or subtenant, the
term, use, rental rate and all other material terms and conditions of the
proposed assignment or sublease. Landlord shall within twenty (20) days after
Landlord's receipt of such written request and information either consent to or
refuse to consent to such assignment or sublease in writing (but no such consent
to an assignment or sublease shall relieve Tenant of its obligations under this
Lease of any liability hereunder). If Landlord should fail to notify Tenant in
writing of its decision within such twenty (20) day period, Landlord shall be
deemed to have consented to such assignment or sublease.
https://www.sec.gov/Archives/edgar/data/1044435/000089924301000587/0000899243-01-000587-0002.txt
Statutory Prohibition of Assignment and Subletting. Tex. Prop. Code §91.005 states as follows:
“During the term of a lease, the tenant may not rent the leasehold to any other person without the prior consent of the landlord.”
This prohibition applies both to assignments and subleases. 718 Associates, Ltd. at 360. As a matter of public policy, this prohibition is incorporated into all leases by operation of law. Id. This statutory prohibition can be avoided if the lease clearly expresses such an intent. Id. A statement in a lease that the tenant has the right to “assign or transfer this lease or to underlease or sublease the whole or any part of said lease premises” is sufficient to evidence a landlord’s authority for a tenant to assign or sublease a lease. Id. at 363.
4. Landlord Consent. Landlord consent is always required, unless the lease specifically authorizes a tenant to assign or sublet the leasehold premises. Id. In practice, most leases will specifically prohibit assignment or subletting without landlord consent, unless the tenant has significant negotiating power.
Unfortunately for tenants, a landlord need not act reasonably in withholding consent, as there is no implied duty of good faith and fair dealing in Texas applied to the landlord/tenant relationship. Trinity Professional Plaza Associates v. Metrocrest Hospital Authority, 897 S.W.2d 621, 625 (Tex. App. – Eastland, 1999, pet. denied). This is true even if the lease is a long term ground lease. Id. The court will not consider the fact that the landlord’s refusal to consent to an assignment or sublease creates the practical equivalent of a restraint on alienation. Id. If a tenant desires to require a reasonable standard for a landlord’s consent, it must be clearly included in the lease. Id.
http://www.wcglaw.net/assets/docs/publications/1092085317_SPACE-RACE.PDF
I guarantee Landlord will agree to an assignment as long as P10 is still attached to lease till 2021. 210 will not want that liability.
Depends on if Texas is a landlord friendly state or a tenant friendly state. My guess is latter.
Best scenario is buy out the remaining contract with landlord and walk away.
Thanks. Still no mention of Landlord. I am sure original lease allows an assignment with landlords approval. The problem is P10 did a sublease and indicated Langley only wants a third of the building. Landlord has to be nervous about the deal on his end. After reading more, I am convinced this is mostly about the lease.
this is court filing asking judge to force a lease assignment. this is one of the most current filings. Landlord has a $6mill claim.
6.Through the Langley RSA, the Debtor agreed to pay Langley $1 million in
exchange for a release of claims under a lease and an asset purchase agreement and Langley has
agreed to accept an assignment of the Debtor’s existing office lease (the “Braker Lease”). The
Braker Lease is one of the Debtor’s largest outstanding liabilities and the assignment is crucial to
the Debtor’s restructuring.
http://docs.wixstatic.com/ugd/cd6d58_1781d940f7c94fe1bf5a1f42de6114a5.pdf
http://media.wix.com/ugd/cd6d58_0d5010130b174a1985526c64b191b8fe.pdf
You did not provide a link.
ARTICLE VIII Treatment of Executory Contracts and Unexpired Leases
2. Assumption and Assignment of the Braker Facility Lease To the extent not already authorized and/or implemented by an Order of the Bankruptcy Court, the Debtor shall assume and assign the Braker Facility Lease to Langley.
Does not say Landlord agreed. p10 is asking court to implement assignment.
https://media.wix.com/ugd/cd6d58_d6fe4a9d8f4f46a4841a830cdfdf5235.pdf
LOL. Landlord is being forced to cooperate to a lease assignment.
My original statement was true. read it for yourself.
We are currently in negotiations with Langley, the landlord and other potential tenants in an effort to reduce our obligations under the lease. We are also in discussions with a potential investor that has indicated that it is contemplating an investment in shares of our common stock. However, the investor has indicated that it would be a condition to the closing of its investment that we make a filing under Chapter 11 of the United States Bankruptcy Code pursuant to a prepackaged plan. The prepackaged plan would provide for the issuance of the shares of our common stock to the potential investor in a manner which would not make the rights under our stockholders rights plan exercisable. In addition, the prepackaged plan would also provide for the settlement our lease obligation. We do not have a definitive agreement with the potential investor, and we cannot assure you that the transactions described above will be consummated.
https://www.otcmarkets.com/edgar/GetFilingHtml?FilingID=11929565
IMO. This is a strategic BK. Negotiations most likely failed with the landlord. On the hook for the rent till 2021.
Going private?
http://ih.advfn.com/p.php?pid=nmona&article=72505551
The shares are being acquired pursuant to an in-kind distribution of the issuer's common stock by Eclipse Resources Holdings, L.P. ("Eclipse Holdings") to its limited partners in connection with the dissolution of Eclipse Holdings.
Very Bullish!
JPEP took $11.629 for depreciation. This is not a payment. It's a deduction. That is cash flow.