In re Braniff, Inc.
| Decision Date | 10 September 1990 |
| Docket Number | Adv. No. 89-230.,Bankruptcy No. 89-03325-BKC-6C1 |
| Citation | 118 BR 819 |
| Parties | In re BRANIFF, INC., Debtor. BRANIFF, INC., Plaintiff, v. GPA GROUP PLC, etc., et al., Defendants. |
| Court | U.S. Bankruptcy Court — Middle District of Florida |
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Howard T. Glassman, Joel C. Shapiro, Matthew J. Siembieda, Faith R. Greenfield, Blank, Rome, Comisky & McCauley, Philadelphia, Pa., for plaintiff.
Francis L. Carter, Coll, Davidson, Carter, Smith, Salter & Barkett, Miami, Fla., Glenn C. Shrader, Paul, Hastings, Janofsky & Walker, Los Angeles, Cal., for GPA Group and Affiliates.
Thomas C. Rice, Simpson, Thacher & Bartlett, New York City, Jeffrey Jontz, Holland & Knight, Orlando, Fla., for AVSA.
Peter N. Hill, Wolff, Hill & Meininger, Orlando, Fla., for Wilmington Trust Co.
Leon C. Marcus, Richard Levy, Marc Richards, Milgrim, Thomajan & Lee, New York City, for the Official Committee of Unsecured Creditors of Braniff, Inc.
David M. Levine, McDermott, Will & Emery, Miami, Fla., for the Official Committee of Noteholders of Braniff, Inc.
JUDGMENT AND FINAL DECREE
THIS CAUSE came on for trial on November 20, 21, 22, 24, and 25, 1989, of the following four consolidated matters:
1. Adversary proceeding No. 89-230 filed in this Chapter 11 case by Braniff, Inc. the debtor, as plaintiff, against GPA Group Limited; now known as GPA Group plc; GPA Corporation; GPA Leasing USA I, Inc.; Wilmington Trust Company; AVSA, S.A.R.L.; and Air Tara Limited; as defendants, and including the counterclaim of GPA Group plc; GPA Leasing USA I, Inc.; and Air Tara Limited against Braniff, Inc.;
2. The motion filed in this Chapter 11 case by GPA Leasing USA I, Inc. for relief from the automatic stay and for adequate protection (Document No. 77);
3. The motion filed in this Chapter 11 case by the debtor for an order authorizing rejection of the A320 partial assignment, assumption, release, and amendment agreement (Document No. 306E); and
4. The motion filed in this Chapter 11 case by GPA Group plc, GPA Leasing USA I, Inc., GPA Corporation, and Air Tara, Limited to Require Braniff to Assume or Reject Executory Contracts Within a Reasonable Time (Document No. 395A);
the undersigned United States Bankruptcy Judge presiding; and the issues having been duly tried; and a decision having been duly rendered; and the Court having found that it is of critical importance to all parties that a decision be made immediately and that the entry of this judgment and final decree therefore cannot await the preparation and entry of extensive findings of fact and conclusions of law; and the Court having made preliminary findings of fact and conclusions of law stated orally and recorded in open court following the close of the evidence; and the Court having further announced that it will substitute for the preliminary findings and the conclusions its final, written findings of fact and conclusions of law in the near future as soon as they can be prepared and entered; it is
ORDERED, ADJUDGED, DECLARED, and DECREED as follows:
1. A declaratory judgment is entered in favor of Braniff, Inc. ("Braniff") and against GPA Group plc f/k/a GPA Group Limited ("GPA Group"), GPA Corporation ("GPA Corp."), GPA Leasing USA I, Inc. ("GPA Leasing"), Wilmington Trust Company ("Wilmington"), AVSA S.A.R.L. ("AVSA") and Air Tara Limited ("ATL") that:
(a)(i) the notices of termination dated September 27, 1989 from GPA Leasing to Braniff in connection with the Aircraft Sublease Agreements for GPA 1989 BN-1 through BN-5; (ii) the notice of termination dated September 27, 1989 from GPA Group and GPA Leasing to Braniff in connection with the Aircraft Lease Commitment dated as of December 30, 1988; (iii) the notice of termination from ATL to Braniff in connection with the Aircraft Lease Agreements between ATL and Braniff for the BAC1-11 200 series aircraft, (iv) the letter dated September 27, 1989, from ATL, GPA Group and GPA Fokker 100 (N.A.) N.V. ("GPA Fokker") to Braniff confirming the expiration of the September 1, 1989 Letter Agreement ("September Letter Agreement") among GPA Group, GPA Fokker, ATL and Braniff, and (v) the letter dated September 29, 1989 from GPA Group and GPA Leasing to AVSA informing AVSA that GPA Group and GPA Leasing had transmitted on September 27, 1989 to Braniff a notice of the termination of the Aircraft Lease Commitment, were null and void and of no force or effect.
(b) The Amended and Restated Airbus A310/A320 Purchase Agreement between AVSA and Braniff dated as of December 30, 1988 together with exhibits ("Purchase Agreement"); the A320 Partial Assignment, Assumption, Release and Amendment Agreement among Braniff, GPA Group and AVSA dated as of December 30, 1988 ("Partial Assignment"); the Aircraft Lease Commitment Agreement between Braniff and GPA Group dated as of December 30, 1988 ("Lease Commitment"); the Aircraft Sublease Agreement dated as of July 13, 1989 for A320 aircraft BN-1; the Aircraft Sublease Agreement dated as of August 30, 1989 for A320 Aircraft BN-2; the Aircraft Sublease Agreement dated as of September 5, 1989 for A320 Aircraft BN-3; the Aircraft Sublease Agreement dated as of September 18, 1989 for A320 Aircraft BN-4; and the Aircraft Sublease Agreement dated as of September 22, 1989 for A320 Aircraft BN-5 and the Aircraft Lease Agreements between ATL and Braniff relating to BAC1-11 200 series aircraft having manufacturer's serial numbers 007, 009, 011, 013, 020, 041, 043, 057, 061, 085 and 127 ("BAC1-11 Leases") are and remain in full force and effect, subject to the terms and conditions thereof, to applicable law, to the terms and conditions of this Judgment and Final Decree and to further order of the Court including any ruling on AVSA's Motion for Relief from the Automatic Stay. The Purchase Agreement, the Partial Assignment and the Lease Commitment are hereinafter referred to collectively as "Agreements". The Aircraft Sublease Agreements are hereinafter referred to collectively as the "Subleases".
2. (a) A declaratory judgment is entered in favor of Braniff and against GPA Group, GPA Leasing, and GPA Corp. declaring that such defendants' actions in connection with the four A320 Aircraft delivered by AVSA after the filing of Braniff's Chapter 11 Petition (aircraft Nos. 6, 7, 8, and 9) were in derogation of Braniff's rights in violation of the automatic stay set forth in Section 362 of the Bankruptcy Code.
(b) A declaratory judgment is entered in favor of Braniff and against AVSA declaring that AVSA in delivering the A320 aircraft referred to in paragraph 2(a) to GPA Group and/or GPA Leasing in a manner inconsistent with Section 13 of the Partial Assignment violated the automatic stay set forth in Section 362 of the Bankruptcy Code.
3. The Court having determined after a final evidentiary hearing that the Subleases, the BAC1-11 Leases, the Lease Commitment and the September Letter Agreement were not validly terminated, that the rights of Braniff under the Subleases and the Agreements to the extent they relate to the A320s which are the subject of the Partial Assignment are property of the estate, that money damages cannot remedy the damage suffered by Braniff, that Braniff will be irreparably injured if Braniff is deprived of its rights under the Subleases and the Agreements to the extent they relate to the A320s which are the subject of the Partial Assignment since, without such rights, Braniff will be deprived of property necessary for a successful reorganization; therefore,
(a) Subject to the terms and conditions stated herein, GPA Group, GPA Leasing, and GPA Corp., their officers, agents, servants, employees and attorneys, and persons in active concert or participation with them, are permanently enjoined and restrained from acting in contravention or derogation of Braniff's rights and interests under and to the Subleases and Agreements and the aircraft subject thereto;
(b) Subject to the terms and conditions stated herein, AVSA, its officers, agents, servants, employees and attorneys, and persons in active concert or participation with them, are permanently enjoined and restrained from acting in contravention or derogation of Braniff's rights and interests under and to the Partial Assignment.
(c) Subject to the terms and conditions stated herein, ATL, its officers, agents, servants, employees and attorneys, and persons in active concert or participation with them, are permanently enjoined and restrained from acting in contravention or derogation of Braniff's rights and interests under and to the BAC1-11 Leases between ATL and Braniff.
(d) Subject to the terms and conditions stated herein, with respect to Braniff's rights to the four A320 aircraft that were delivered by AVSA after the filing of Braniff's Chapter 11 Petition, and with respect to the additional A320 aircraft to be delivered by AVSA pursuant to the Partial Assignment:
(i) Braniff and GPA Leasing shall promptly review the form of sublease used for the Subleases to revise such form as necessary to apply to such aircraft, all in accordance with the Lease Commitment.
(ii) (a) As to the four A320s (aircraft Nos. 6 through 9), GPA Leasing (or one of its affiliates) shall deliver such aircraft to Braniff and Braniff may enter into and comply with subleases and related documents on such aircraft under and in accordance with the terms and conditions of such sublease form and the Agreements, including the Lease Commitment, by December 21, 1989 (or such later date prior to December 31, 1989 as may be mutually agreed among Braniff, GPA Group and AVSA).
(b) As to the other A320s that are the subject of the Partial Assignment, AVSA shall deliver such aircraft in accordance with the Agreements (provided, that GPA Leasing and Braniff shall inspect and accept and AVSA...
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