In re Jeff Benfield Nursery, Inc.

565 B.R. 603, 91 U.C.C. Rep. Serv. 2d (West) 844, 77 Collier Bankr. Cas. 2d 205, 2017 Bankr. LEXIS 196, 63 Bankr. Ct. Dec. (CRR) 164
CourtUnited States Bankruptcy Court, W.D. North Carolina
DecidedJanuary 24, 2017
DocketCase No. 16-40375
StatusPublished
Cited by2 cases

This text of 565 B.R. 603 (In re Jeff Benfield Nursery, Inc.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Jeff Benfield Nursery, Inc., 565 B.R. 603, 91 U.C.C. Rep. Serv. 2d (West) 844, 77 Collier Bankr. Cas. 2d 205, 2017 Bankr. LEXIS 196, 63 Bankr. Ct. Dec. (CRR) 164 (N.C. 2017).

Opinion

ORDER DENYING MOTION FOR RELIEF FROM AUTOMATIC STAY

J. Craig Whitley, United States Bankruptcy Judge

This cause came before the Court on December 13, 2016, for a final hearing on the Motion for Relief from the Automatic Stay and Request for Interim Hearing Under Section S62(e) of the Bankruptcy Code filed by SiteOne Landscape Supply, Inc. (“SiteOne”). [Doc. 71].1 David A. Wen-der, Esq. appeared for SiteOne; Constance L. Young, Esq. appeared for PNC Bank, N.A. (“PNC”); Felton E. Parrish, Esq. appeared for Century Services LP (“Century”); James M. Sullivan, Esq. appeared for the Internal Revenue Service; Richard S. Wright, Esq. appeared for Jeff Benfield Nursery, Inc. (the “Debtor”); and Linda W. Simpson, Esq. appeared as the United States Bankruptcy Administrator for the Western District of North Carolina. Based upon a review of the record, the evidence presented, and the arguments of counsel, the Court makes the following:

FINDINGS OF FACT2

The Debtor operates a commercial wholesale nursery, growing trees, shrubs, [606]*606and similar agricultural products on approximately 1,000 acres in western North Carolina. The Debtor filed for protection under Chapter 11 of the Bankruptcy Code in this Court on August 26, 2016. PNC asserts a secured claim in the Debtor’s bankruptcy case of approximately $6.1 million, alleging a perfected pre-petition security interest in substantially all assets of the Debtor, including, but not limited to, its accounts, inventory, equipment, and farm products — including crops. Similarly, Century asserts a secured claim against the estate of approximately $540,000. Century alleges that it too has a valid pre-petition lien in all assets of the Debtor, including crops, and that its security interest is superior in priority to that of PNC.

On or about October 28, 2013, the Debt- or entered into a “Contract Grow Agreement” with Shemin Nurseries, Inc., a wholesale distributor of nursery stock (“Shemin”) (as subsequently amended on March 17, 2014 and February 1, 2016, the “2013 Agreement”). The Debtor entered into a second “Contract Grow Agreement” with Shemin on or about April 9, 2015 (as subsequently amended on February 1, 2016, the “2015 Agreement”). Pursuant to both the 2013 Agreement and the 2015 Agreement, the Debtor was to plant and grow designated varieties and quantities of trees for Shemin on two tracts of leased land (the “Contract Farms”), in return for certain fees over two separate, four-year terms. SiteOne asserts that it subsequently acquired Shemin, and is its successor in interest under the 2013 Agreement and the 2015 Agreement (jointly, when applicable, the “Grow Contracts”).

The Grow Contracts are governed by North Carolina law according to their express terms. They provide that SiteOne shall purchase and deliver trees to be planted on the Debtor’s leased properties. The Grow Contracts also state that the trees, in specified sizes and quantities, will be harvested in the spring and fall of each year according to harvest schedules set forth as exhibits thereto.

After the trees are planted, SiteOne is to pay a “Planting Cost” to the Debtor to account for the costs of purchasing and planting the trees on the leased properties. The Planting Cost is determined by schedules attached to the Grow Contracts, which in some instances include royalties for particular species in addition to predetermined liner3 and planting expenses. During the cultivation of the trees, SiteOne is to pay a “Maintenance Cost” to the Debt- or. The Maintenance Cost, which is to be invoiced and paid three times per year on a pre-determined schedule, is a set fee calculated according to how many trees remain in-ground, less any trees that have been culled by SiteOne. The Grow Contracts define a “Culled Unit” as a tree that is not accepted by SiteOne due to death, immaturity, or failure to meet • SiteOne’s quality or pruning standards.

Once harvesting of the trees occurs, the Grow Contracts state that SiteOne shall pay the Debtor a “Final Cost,” consisting of a pre-determined, below-market price per tree, less the Planting Costs and Maintenance Costs previously paid to the Debt- or for the trees in the harvest, and less a “Culled Credit” prorated over the number of trees accepted in the particular harvest. The Grow Contracts define the “Culled Credit” as follows:

With respect to a particular Harvest, an amount equal to the sum of the Liner Cost, Planting Cost and cumulative Maintenance Cost incurred by Shemin for all Culled Units of the Planting and Cultivar of the Harvest; less (1) any insurance proceeds or other cash reim[607]*607bursement actually received by Shemin for any Culled Units of the same Planting and Cultivar; and (2) any Culled Credit previously applied to a Harvest of the same Planting and Cultivar.

In addition to the foregoing, the Grow Contracts require that at the end of their four-year terms, the Debtor' must repay SiteOne an amount equal to all Planting Costs (including, but not limited to, the liner costs of the planted trees) and all Maintenance Costs incurred by SiteOne, but not already applied towards post-harvest Final Costs, unless the same are reimbursed to SiteOne through insurance or otherwise.

Further, the Grow Contracts contain the following additional terms and conditions:

(a) That SiteOne shall unilaterally purchase and deliver trees to the Debt- or to be grown on the leased properties;
(b) That SiteOne shall unilaterally determine the type and quantities of trees to be grown on the leased properties;
(c) That SiteOne shall unilaterally determine the timing of the delivery of trees to be grown by the Debtor on the leased properties;
(d) That SiteOne is not obligated to accept or compensate the Debtor for quantities of trees that exceed those set forth on the specific harvest schedules attached as exhibits to the Grow Contracts;
(e) That the Debtor may not amend, modify or terminate the underlying real property leases without Si-teOne’s prior, written, discretionary consent;
(f) That the trees will be grown according to SiteOne’s unilaterally determined standards of grade, quality, and pruning;
(g) That the Debtor will follow Si-teOne’s unilateral instructions regarding the maintenance and pruning of the trees;
(h) That the Debtor will insure the trees to be grown under the Grow Contracts;
(i) That the Debtor will be responsible for all permits, licenses, fees, charges, assessments, taxes, and inspections required by any governmental authorities in connection with the Debtor’s performance of its obligations under the Grow Contracts;
(j) That if the Debtor does not meet its obligations under the Grow Contracts, SiteOne may contract for such services on the Debtor’s behalf and deduct the related costs of doing so from payments otherwise due to the Debtor under the Grow Contracts;
(k) That the Debtor shall provide Si-teOne with access to the leased properties at all times, and shall not impede or impair SiteOne’s performance of any activities related to the Grow Contracts;

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
565 B.R. 603, 91 U.C.C. Rep. Serv. 2d (West) 844, 77 Collier Bankr. Cas. 2d 205, 2017 Bankr. LEXIS 196, 63 Bankr. Ct. Dec. (CRR) 164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jeff-benfield-nursery-inc-ncwb-2017.