By Nicole Montesano • Staff Writer • 

New front opened in Evergreen sale fight

News-Register file photo##The Evergreen museum complex includes the air and space museum, a water park and a theater.
News-Register file photo##The Evergreen museum complex includes the air and space museum, a water park and a theater.

In Delaware, federal bankruptcy judge Mary Walrath conducted a hearing Tuesday on a motion by Evergreen Trustee Alfred Guiliano to sell the buildings at 3500 and 3600 Three Mile Lane to Jackson Family Wine for $4.6 million. However, no order was immediately forthcoming.

Later the same day, Rhodium Loan Servicing, which is contesting that sale, filed a motion in federal bankruptcy court in Portland. Both the objection it filed in Delaware and the motion it filed in Portland share the same ultimate end — securing an easement to an Evergreen building at 3400 Three Mile Lane, which it acquired earlier by outbidding Jackson.

Building 3400 was known as the EAGLE building for the Evergreen subsidiary that once occupied it — Evergreen Aviation Ground Logistics Enterprise. Rhodium claims Guiliano agreed to provide an easement to the otherwise landlocked property in June, as part of a bankruptcy settlement with Evergreen Vintage Aircraft, another Evergreen subsidiary.

Rhodium says it bid on that basis in a September foreclosure auction in which it acquired the property from Umpqua Bank. It says Guiliano is now reneging because Jackson Wine doesn’t want an easement cutting through the adjacent parcels.

In addition to Rhodium, objections have been lodged in Delaware by the Air Line Pilots Association, which holds liens on both properties against back pay and pension objections, and Yamhill County, which is seeking back Evergreen property taxes.

Jackson Family Wine says the EAGLE building was sold “as is,” with no easement, and it bid on that basis, ultimately losing out. It says the buildings at 3500 and 3600, where it prevailed, were offered free and clear of any easement obligation.

Jackson says granting an easement after the fact would diminish their value. It says it would negotiate terms with Rhodium on an easement, but not grant one without compensation. It has threatened to back out of the deal if the court grants Rhodium an easement through the properties.

In its Portland filing, Rhodium argued, “During the mediation that resulted in the term sheet, Umpqua negotiated for an easement for access to property it owned, known as the EAGLE property, across certain properties owned by those estates. Specifically, the term sheet provides that upon entry of the settlement order, the trustee ‘will acknowledge an acceptable easement agreement.’”

The settlement also provided that disputes be settled in Oregon, before Judge Elizabeth Perris, in binding arbitration. Rhodium is asking the court to invoke that clause and order an arbitration to be held on Dec. 11.

When the settlement order was entered on June 15, Rhodium argues, the court found then that the parties had “entered into the agreement knowingly and voluntarily, and the settlement is therefore binding on the parties to the agreement.” It says its lawyer and the trustee met before Judge Perris on Nov. 16, but were unable to resolve the matter.

In the filing, it goes on to argue, “Umpqua relied on the trustee’s assent in the settlement, and sold the EAGLE property per the terms of the agreement. Rhodium relied on those terms in purchasing the EAGLE property, with the understanding that historical easements for use and utilities would be provided.”

It continues, “The trustee’s behavior is transparent. Having succeeded in obtaining the benefits under the term sheet and release of claims, the trustee is simply hoping to delay entry of a 9019 Motion approving the term sheet in the Delaware Bankruptcy Court, including the refusal to provide the easement, for as long as possible to hold out on an isolated claim of $9.2 million with a non-party to the term sheet, World Fuel.

“The court not only has the authority to enforce the settlement agreement reached in this case, it has the authority to sanction the trustee if it finds bad faith, after considering the evidence. After stalling for months, the trustee is trying to renege on that agreement.”

World Fuel is seeking $9.2 for fuel provided to Evergreen for operation of its global air cargo fleet. Guiliano has not yet responded to the motion.

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