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1
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WILMINGTON HOSPITALITYS RESPONSE TO MOTION FOR APPOINTMENT OF RECEIVER
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EXTRACTED KEY WORDS
RECEIVER BANK APPOINTMENT MOTION SETTLEMENT ENFORCE SETTLEMENT AGENT COUNTY CONTROL LOAN DOCUMENTS DEL COURT RECEIVER PENDENTE FORECLOSURE ACTION SALE CONTRACT PENDING RIGHTS EXHIBIT POWER MANAGING AGENT REASONS RECEIVER PENDENTE LITE OPENING EVIDENCE OPERATING PURCHASE IMPROPER PRINCIPALS |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
IN RE >
WILMINGTON HOSPITALITY, LLC, ;
cl CJ :=; g CA. NO. 18605
u D$jwafe:$imited Liability
k .-_- I
-.. I Q) z-:-y Corporation
-Cdr. I C-J .`I ;
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s L!.@ ILMINGTON HOSPITALITY'S RESPONSE TO PETITIONER'S
&MOTION FOR APPOINTMENT OF RECEIVER PENDENTE LITE
Introduction
Republic Bank's (the "Bank") motion for appointment of a receiver pendente lite is
baseless, as set forth below.
However, notwithstanding the absence of any right to a receiver, Wilmington
("WH") would not oppose the appointment of an independent agent to take control of and seek to
open the Radisson Hotel and Suites, 401 Airport Road, New Castle, DE 19720 ("Hotel")
pursuant to an acceptable form of stipulation or Order, pending the outcome of WH's Motion to
Enforce Settlement, the Bank's foreclosure action and the sale of the Hotel.
Areument
A. The Bank And WH's Settlement Has Superseded Any Contractual Right To A
Receiver That The Bank Had Under The Loan Documents
It is true that where "factual circumstances establish a contractual right to
a receiver, equity will follow the law." Dover Assocs. Joint Venture v. Ingram, Del. Ch., CA.
No. 1448, 2000 WL 567876, at "2, Steele, V.C. (April 5, 2000). Here, however, the Bank has
not established a contractual right to a receiver, because the Bank voluntarily relinquished and
released its rights under the loan documents it relies on.
393599-2
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2
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PETITIONERS MEMORANDUM IN SUPPORT OF APPOINTMENT OF RECEIVER
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EXTRACTED KEY WORDS
DEL COURT RECEIVER PENDENTE LITE CASTLE COUNTY RECEIVER PENDENTE PROCEEDING DELAWARE APPOINTMENT MORTGAGE LOAN AGREEMENT HOTEL EXERCISE RADISSON LIMITED LIABILITY DISCRETION VERIFIED PETITION FORECLOSURE PROCEEDING LIMITED LIABILITY CORPORATION MEMORANDUM FACTS RECEIVERPENDENTE LITE STANDARD COMPLAINT IMMINENT DANGER SECURITY DEFENSES NATURE ENTITLEMENT |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
>
IN RE WILMINGTON HOSPITALITY L.L.C., )
a Delaware Limited Liability Corporation
; C. A. No. 18605 sz=
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PETITIONER'S MEMORANDUM IN SUPPORT OF g% ny
THE APPOINTMENT -co
OF A RECEIVER PENDENTE LITE
BLANK ROME COMISKY & MCCAULEY
Neal C. Belgam (ID #2721)
Elizabeth A. Wilburn (ID# 3666)
1201 N. Market Street
Suite 2100
Wilmington, DE 19801
(302) 425-6400
Attorneys for Petitioner,
Republic Bank
February 20, 2001
TABLE OF CONTENTS
NATURE AND STAGE OF THE PROCEEDINGS
AND STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I. THE PARTIES AND ACTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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3
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MOTION TO DISMISS OR STAY
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EXTRACTED KEY WORDS
BANK ENFORCE SETTLEMENT RECEIVER WILMINGTON HOSPITALITY DISMISS PETITION RIGHTS DELAWARE LIMITED LIABILITY APPOINTMENT MORTGAGE DETERMINATION DELAY COURT CHANCERY CASTLE COUNTY LLC LIMITED LIABILITY COMPANY HOTEL PENDENCY FORECLOSURE SETTLEMENT AGREEMENT HERETO EXHIBIT CAUSING PREJUDICE IRREPARABLE HARM BASIS EQUITABLE PRINCIPLES |
IN THE COURT OF CHANCERY OF THE STATl%ii:DELAWARE
IN AND FOR NEW CASTLE COUNTY
fiJ !.*?;
L J <...!I. 2 9 p,Y/ 5: 22
IN RE : iiE(,'
WILMINGTON HOSPITALITY, LLC, ::
A Delaware Limited Liability Company :
MOTION TO DISMISS OR IN THE
ALTERNATIVE STAY PETITION FOR RECEIVER
Wilmington Hospitality, L.L.C. ("WH") moves to dismiss or stay this action on
the following grounds:
1. In this action, Republic Bank seeks the appointment of a receiver pendite
lite to take control of and manage the affairs of the Radisson Hotel during the pendency
of the Bank's forec.losure action against the Hotel property.
2. As the Bank concedes, its claimed right to have a receiver appointed is
predicated upon the contractual provisions of the mortgage on the property,
3. However, the Bank's petition fails to disclose the pendency of a Motion to
enforce a settlement between WH and the Bank, which Motion WH filed prior to the
initiation of the foreclosure or this action. A copy of the Substituted Motion to Enforce
the Settlement Agreement is attached hereto as Exhibit "A". The Memorandum in
Support Of Motion To Enforce Settlement that WH filed on January 8, 2001 is attached
hereto as Exhibit "B".
4. WH has sought to expedite the proceedings on the Motion To Enforce
Settlement, but the Bank has claimed that the earliest it can respond to that Motion is
January 29,200 1.
388909-Z
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4
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PETITION
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EXTRACTED KEY WORDS
RECEIVER RADISSON PETITIONER APPOINTMENT COURT PENDENTE LITE COUNTY COMPLAINT HOTEL EXHIBIT POWER HERETO DELAWARE LENDER AMOUNT WILMINGTON HOSPITALITY CASTLE PERMIT REFERENCE LAW FORECLOSURE THEREON RIGHTS EXECUTION INCORPORATES PAYMENTS PROCEEDING AMENDED NOTE PURSUANT |
C-J
IN THE COURT OF CHANCERY OF THE STATE OF DEQiWArtE I
0'0 CL.
3,;:
IN AND FOR NEW CASTLE COUNTY 2%. -.
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L!Y RE . . . .
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WILMINGTON HOSPITALITY L.L.C., ) C. A. No.
)
a :Delaware Limited Liability Corporation 1
VERIFIED PETITION FOR THE APPOINTMENT
OF A RECEIVER. PENDENTE LITE
Petitioner, Republic Bank, a Florida banking corporation, by and
through its undersigned counsel, petitions the Court for the appointment of a
receiver pendente lite for Wilmington Hospitality, L.L.C., and in support
thereof alleges the following:
THE PARTIES
1. Petitioner is Republic Bank, a Florida banking corporation
("Petitioner" or "Republic") with its principal place of business located at 111
Second Avenue, NE, Suite 300, St. Petersburg, Florida.
2. Wilmington Hospitality, L.L.C. (the "Company" or "WH") is a
Delaware limited liability company with its principal place of business located
at 1601 Concord Pike, Wilmington, Delaware.
3. On information and belief, WH is a single purpose, bankruptcy-
remote entity. WH has a license agreement with Radisson Hotels International,
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