2020-08-28_GENERAL DOCUMENTS - C1980004 ‎(7)‎

• Permit No: C1980004
• IBM Index Class Name: General Documents
• Doc Date: 8/28/2020
• Doc Name Note: Hopedale Mining , LLC Case No. 20-12043 ‎(GRH)‎
• Doc Name: Objection of Wintrust Commercial Finance to Sale Motion & Equipment Lease Cure Cost
• From: Brook Gibson
• To: DRMS
• Permit Index Doc Type: General Correspondence
• Email Name: JRS
• Email Name: JDM
• Email Name: CMM
• Email Name: GRM
• Email Name: CCW
• Media Type: D
• Archive: No

Case 1:20-bk-12043 Doc 303 Filed 08/28/20 Entered 08/28/20 11:03:45 Desc Main
Document Page 10 of 13
v. Faurecia Automatic Seating, Inc., No. 3:1 OCV00575, 2012 WL 13027056, *5 (N.D. Ohio Sept.
6, 2012) ("Section 365 of the Bankruptcy Code prohibits a trustee (or debtor in a case under
Chapter 11) from assuming an executory contract unless any default is cured or adequate assurance
of such cure is provided.") (quoting Matter ofPenn. Tire Co., 26 B.R. 663, 673 (Bankr. N.D. Ohio
1982)).
31. The Debtors are also required to cure all nonmonetary and/or unliquidated
obligations under the Lease Agreement including, without limitation, repair, maintenance and
similar obligations under the Lease Agreement. See In re Akron Thermal, L.P., No. 07-51884,
2008 WL 1886171, *17 (Bankr. N.D. Ohio Apr. 25, 2008) ("Section 365 of the Code ... allows
a debtor to assume the contract if, and only if, the debtor can both cure the past monetary defaults
and convince the Court that it is likely the debtor will be able to perform all of its future obligations
(monetary or otherwise) under the agreement.")
32. The Debtors are therefore required to provide (a) adequate assurance that the
correct cure cost will be paid and the significant Maintenance Deficiencies and other unliquidated
obligations (collectively, the "Unliquidated Obligations") will be cured and (b) adequate assurance
of future performance as mandated by section 365 of the Bankruptcy Code.
33. In addition, Wintrust is entitled to recover its attorneys' fees and costs incurred in
the enforcement of the covenants and obligations of the Lease Agreement as a condition of the
assumption and assignment of the Lease Agreement. See In re Revco D.S., Inc., 109 B.R. 264,
273 (Bankr. N.D. Ohio 1989); In re Senior Care Ctr., LLC, 607 B.R. 580, 592 (Bankr. N.D. Tex.
2019).
34. Wintrust objects to any order approving a sale of the Debtors' assets that does not
(a) require that the full amount of the cure cost under the Lease Agreement be paid at or prior to
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