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Home My WebLink AboutApproving Assignee'sIN T1-1I CIRCUIT COURT OF T}-IE ELEVENTH JUDICIAL C.IRC:"Ull IN AND FOR MIAMI-DADE=: COUNT r, FLORIDA CIVIL DIVISION In Re: B.F.A. IN7"EINA rI()NA a Florida corporatin, e No. 08-2424 MICHAEL ASsi ncc. CA 27 OR ER APPROVING ASSIGNEE'S MonoN TO APPROVE SALE OF ASSETS FREE & CLEAR OF LIENS AND CLAIMS Ili IS CAUSE havinr, collie hcfore the Court on June 18, 2008 at 9-30 a.tn. upon the Assignee's I Itstit n to Approve Sale of Assets Free Motion"), and the Court hag rcvie ,'ed the Sie Motion, Young Men's Christian Association of Greater & Clear of Liens and Claims (the "Sale the Limited Objection filed by The Miami (the YMCA). the Ohjcction filed by Nichol. Inc.. having heard nrgurnef)t of counsel and being fully advised in d that tApprove Salc of ear of [.i e best interest of the creditors Ci12I)El�f t) ANI) AfJUUGED s folla«s pprove Inc he rtd I Thr I'urrhase and Sale Agra t ntc nt dated !av 2"7. 2008 between Mich,,icl I'hehin, Assigne bens f l cal credditors of f3.1-.A. Izitcrntatiranal Cc}rp;>ratityn (-A ' ,,,t)c:e or lc;r"). ancf "`F3 I . A. architects. lrzc., a 1 rida corporation '("Buyer"l (the "purchase and Sale Agreement"), is approved subject to the conditions and terms of this Order, and thissale is free and clear of liens. with any such hens to attach to the proceeds of the sale. 2 The Seller shall prepare a bill of sale transferring to the Buyer those pending contracts for the performance of professional services set forth and attached hereto as Exhibit A (the list of contracts on Exhibit A is intended to provide a description of those contracts and does not contain the definitive titles of those contracts), excluding any and all contracts with Miami - Dade County, as well as any change orders, service orders, supplements, and work orders thereto or issued thereunder. Except as provided below in paragraph 3, any party to a contract with B.E.A. hitentational Corporation (the "Customer") that has not executed an assignment of its contract to the Buyer shall have two (2) weeks from the date of this Order (the "Contract Agreement Deadline") to determine whether to agree to an assignment of its contractto Buyer. The Contract Agreement Deadline may be extended by agreement between the Customer, the Buyer and the Seller, without further order of this Coun. Each of those unassigned contracts shall be excluded from the sale unless and until an assignment is agreed to in writing between the Customer and Buyer and if no such written agreement is entered inn) with respeet to a particular contract on or before the Contract Agreement Deadline, such contract shall he excluded from the sale. such a written agreement is entered into with respect to a particular contract on or before the C'outruct Agreement Deadlirie. such contract shall be included in the sale approved hy this Order Neither this Order nor the Purchase and Sale Agreement shall restrict the terms and conditicms that may be required in an agreement for assignment of a contract to 13uyer. Tins Order shall 1101 modify the provisions of the 1>nrchase and Sale Agreement concerning the 13tiyet"\ asskirnotion of the Seller's obligathms under the contrcts dentified on Ilxhibit A. Each Customer who shall execute an assignment of its contract to Buyer shall have no liability or obligation to any third party or creditor as aresult of the decision to execute such assignment, 3. This sale excludes any and all contracts, ehanae orders, service orders. supplements, and work orders thereto or issued thereunder, between Miami -Dade County, and B.E.A. International, Corp. and/or B.E.A. international, Inc. Miami -Dade County shall have thirty (30) days from the date of this Order to: (i) provide the Buyer with proposed language regarding an assignment and assumption of any such contracts between International Corp, and/or B.E,A, International, inc., and Miami -Dade County; (ii) provide the Assignee with a list of contracts which require approval for assignment; and (iii) obtain a recommendation for approval from the relevant County department heads. -lhe prospective assignment and assumption of these contracts is subject to: (i) the issuance ()I' a Manager's recommendation to approve such assigm ent(s) and assumption(s) to the Board of County Commissioners: (it) the Board of (`.ourn) Commissionersapproval of such assignment(s) and iissumption(s) in a form acceptable to Miami -Dade Courtly; (iii) such Board -approved resolution becoming effective: and (iv) the proper execution of written assignment and assumption acreemerit(s) in a form acceptable, to Miami -Dade County. If any of these conditions subsequent arc not fulfilled with regard to any contract, those contracts shalt be excluded from the sale. 4. The Seiler shall ensure that all transfer doettments are properly executed to transfer mvnership of those items set forth in paragraphs 2 through 15 of the Purchase and Sale Atireernert Attached hereto as L....Ai-hit "B" is a listing of the furniture. fixtures. equiprnent and ct)inputer equipment bemg sold to the Buyer. 5. 'the provisions. of paragraph 4 and paragraph 4.1 of the Purchase arid Sale green -win alvolve the Seller's obligation to. pay the dnect salar:, and expenses incurred hy Buyer, and the calculation of profits (if any) by the Assignor that are to be paid to the Assignee for the benefit of the assignment estate, or losses to be indemnified by the Buyer, information regarding the salary arid expenses and profits or losses, shall be provided, when available, to all creditors who have requested the same of the Assignee in writing, Within 20 days from the date of hitch notice being served, interested parties may file an objection to the salaries, expenses, or profit calculation which shall then be set by this Court for hearing. 6. T'bis Order shall not constitute, in any fashion, a finding regarding the extern, validity or scope of the claims that the Assignee or the assignment estate or any creditor may hold against any individual or entity or any affiliate of any entity, as defined by 11 S C 101, in which any of the Principals of the Assignor or Buyer have any legal or equitable interest and this Order is not intended to, and shall not release or waive any such claims. 7. This Order does not approve the purchase, sale or transfer of any unbilled fees or work in progress for which payment was due on the date of the filing, of thc Assignment for the Benefit of Creditors, from any party under any contract being transferred pursuant to the Purchase and Sale Agreenlenl- Any obligation for payment due to B,E.A. International t.'orponitit)il prior to the filing of this Assigrunerit for the Benefit of Creditors is int asset of the estate and the Assignee shall ensure that these obligations are billed and collected in the same mannei as all other accounts receivable. Any obligation for payment due prior to the date of the translei of assets.. including obligations arising under the contracts to be transferred (the 'Transferred Contracts") to the Buyer pursuant to Section 2 of this Order, are also assets of the estate ,Ind the Assignee shall ensure that these obligations are billed and collected in the same mannet all other accounts receivable Except as provided below in this paragraph, existing customers of the Assignor shall remit payment to the Assignee for all contracting work performed under the Transferred C'ontracts through the Contract Agreement Deadline (the expected transfer date, priwided, however, payment shall he made to the Assignee for all work performed under the Tra sterred Contracts through the actual transfer date) and shall remit payment to Buyer for all contracting, work perforated under the Transferred Contracts ii-om and after the Contract Agreement Deadline (the expected day after the transfer date. provided. however, payment shall he made to the Buyer for all work performed under the TransfOrred Contracts from and after the day following the actual transfer date). Notwithstanding the foregoing, each existing Custome, the Assignee Nyho has not yet decided whether to agree to an assignment of its contract to the Buyer shall remit payment to the Assignee for all payments due under its contract through either the date that an assignment is agreed to in writing and executed by such Customer and the Buyer or the dale on Which such contract is. terminated by the Customer, as the case may be, such an assignment agreement is executed by such Customer and the Buyer, the Customer shall remit payment to Buyer for all 'payments due under its con -tract after such date. Provided, however, if a CuNtorner unsure or to whom tQ makr any payment, the Customer shall provitie notrec to both the Assignee and the Buyer.. If the Assignee and Buyer agree as to Whom the payment should he made. the Ctiqiimer shall make it a agreed. In this event, the Customer shall have no liability or obligation to any third party or creditor for such amount paid, II the Assignee and the Buyer do not agree as to whom the payment should he made, the Customer 0%111 make the payracint to the Assignee, who shall hold the payment in trust until the C:Uurt enters an Order ciirecting payment 9 This Order does not constitute a bar to any equitable lien on the 10-year cc.=trittivrciii,1 t3i.sted f)titiither 201)1 for tliti premises located at 3001 NW S. RiV(.1- Drive, 5 Miami. H 33142 and/or the leasehold premises, should any court of competent jurisdiction detemine that such a lien is appropriate or affect in any manner any claim by the Assigncc against an individual or entity. 10. The sale is "as is" "where is" and without any warranties except as specifically set forth in paragraph b and 7 of the Purchase and Sale Agreement. Notwithstanding these warranties, the Buyer and Seller acknowledge that Moffatt &. Nichol, Inc. have filed proceedings supplementary in that case filed in the Circuit Court of the Eleventh Juclicial Circuit in and for Miaim-Dade County, Florida, styled Iticillart &Nichol. Jn r B.F.A. C'orp., Case No. 04-22836 CA 04. 1 1. This Order specifically recognizes that the Assignee, Michael Phelan, is continuing to investigate the information included on Schedule A ;.ittached to the original Assignment by B.E.A. International Corporation, and Schedule A that is not attached but referenced in Schedule 13 that is attached to the original Assignment. This investigation includes but is not limited tO the Great Florida Bank transactions, River Property, J.V. as the landlord for 3001 NW S. River Drive, the unsecured claims of Art. Design & Construction International, the payments made to Art, Design & Construction, Inc. candor Art Design & Construction International prior to filing, this Assignment for the Benefit of Creditors and the creation of the assignment estate This Order does not adjudicate any claims which the Assignee or any creditor may have against any person. party. entity, or organization listed in Schedule -A" to the Assignment attached to the Petition, or the different Schedule A that is referenced m Schedule to the Assignment attached to the Petition. which is not attached to or included in the A$signMent 12. Ibis Orde ive any of the rights, obltt;atirmlhcr terms and provisit et torth in any of the contract; identified on Exhibit A attached io this Order. Neither the Purchase and Sale Agreement nc>r this Order ,shall alter or modify the terms ;and conditions for payment contained in the contracts identified on Exhibit "A attached to this Order. 13. Subject to the termsandconditions as set forth herein, the Assignee's Motion to Approve Sale of Assets Free & Clear of Liens and Claims is APPROVED. t)0NE ANI) ORDERED in Chambers at Miami -Dade County, Florida on this Conformed Copy AIN 25 2R18 Copies to: Paul L. tOrshan, F.sy all i!1terextcd p?<rrtle. ) 2008. Maria Espinosa Dennis Circuit Court Judge Circuit Court Judge -y:Orshatt ix directecl to serve tt co?Jforrnet op y rif this ()refer on