UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION

_____________________________________

)

In re: )

) Chapter 11 

Mary Brickell Village Hotel, LLC, )

) Case No. 21-17103 (RAM) 

)

 Debtor.1)

_____________________________________ )

DEBTOR’S MOTION FOR ENTRY OF INTERIM AND FINAL ORDERS 

(I) AUTHORIZING USE OF CASH COLLATERAL PURSUANT TO 11 U.S.C. § 363, 

(II) DEEMING ITS SECURED LENDER ADEQUATELY PROTECTION PURSUANT 

TO 11 U.S.C. §§ 361 AND 363, AND (III) SCHEDULING A FINAL HEARING 

(Emergency Hearing Requested) 

Basis for Expedited Relief 

The Debtor seeks to continue to operate its business in the ordinary course, to 

preserve the value of its estates, to preserve jobs, and to facilitate its orderly 

reorganization. Without the immediate authorization to use Cash Collateral (as 

defined herein), the Debtor will not be able to meet payroll and other obligations 

necessary for its day-to-day operations. The Debtor respectfully requests that the 

Court conduct a hearing on this Motion within three (3) business days of the 

Petition Date (as defined herein), consistent with Local Rule 9013-1(F), as the 

Debtor believes that a hearing on this Motion is needed as soon as practicable in 

order for it to continue to operate. The Debtor respectfully requests that the Court 

waive the provisions of Local Rule 9075-1(B), which requires an affirmative 

statement that a bona fide effort was made in order to resolve the issues raised in 

the Motion, as the relief requested herein is urgent in nature and does not lend itself 

to advance resolution. 

The above-captioned debtor (the “Debtor”) by and through its undersigned proposed 

counsel, submits this motion (the “Motion”) for entry of an interim order substantially in the 

form submitted herewith (the “Interim Order”), and a final order (the “Final Order” and together 

1

 The last four digits of the Debtor’s tax identification number are 7701. The Debtor’s principal address is 1001 

SW 2nd Ave., Miami, FL 33130. 

Case 21-17103-RAM Doc 3 Filed 07/21/21 Page 1 of 25
2 

with the Interim Order, the “Cash Collateral Orders”), pursuant to sections 105(a) ,361, and 363 

of title 11 of the United States Code, 11 U.S.C. §§ 101 et. seq. (the “Bankruptcy Code”), 

(i) authorizing the Debtor’s continued use of cash collateral pursuant to section 363 of the 

Bankruptcy Code; (ii) deeming its secured lender adequately protected, on the terms and 

conditions set forth herein, pursuant to section 361 and 365 of the Bankruptcy Code; and 

(iii) scheduling a hearing (the “Final Hearing”) pursuant to Rule 4001(b)(2) of the Federal Rules 

of Bankruptcy Procedure (the “Bankruptcy Rules”) to consider entry of the Final Order, 

authorizing the use of cash collateral on a final basis. 

In further support of this Motion, the Debtor relies upon the Declaration of Pedro Villar in 

Support of the Chapter 11 Petition and First Day Pleadings (the “First Day Declaration”), filed 

contemporaneously herewith, and respectfully states as follows: 

Jurisdiction, Venue and Statutory Predicates 

1. This Court has jurisdiction over this Motion pursuant to 28 U.S.C. §§ 157 and 1334. 

This matter is a core proceeding within the meaning of 28 U.S.C. § 157(b)(2). 

2. Venue in this Court is proper pursuant to 28 U.S.C. §§ 1408 and 1409. 

3. The statutory bases for the relief requested herein are sections 105, 361, 363, and 

507 of the Bankruptcy Code, Bankruptcy Rules, 2002, 4001, and 9014 and Local Bankruptcy Rule 

4001-2 (and the Bankruptcy Court’s Guidelines for Motions Seeking Authority to Use Cash 

Collateral and Motions Seeking Approval of Postpetition Financing (the “Guidelines”) 

incorporated therein), 9013-1, and 9075-1. 

Disclosures Under the Bankruptcy Rules, Local Rules, and Guidelines 

4. The following disclosures are provided pursuant to the requirements of Bankruptcy 

Rule 4001(b), Local Rules 4001-2, 9013-1(F) and (G), and the Guidelines: 

Case 21-17103-RAM Doc 3 Filed 07/21/21 Page 2 of 25
3 

a. Cash Collateral: As used herein, “Cash Collateral” shall mean any collateral 

constituting “Cash Collateral”, as such term is defined in section 363 of the 

Bankruptcy Code.

b. Party with an Interest in Cash Collateral: DF VII REIT Holdings, LLC, a 

Delaware limited liability company (the “Lender”), is the sole entity with a lien 

interest in Cash Collateral. Pursuant to the Financing Statements (as defined 

herein), the Lender asserts a security interest in the Cash Collateral. The 

principal unpaid balance pursuant to the Loan Documents (as herein defined) 

with the Lender is $17,000,000.00, and the precise balance due thereon is 

contested, but under no circumstances exceeds $21,374,747.11. For the 

avoidance of doubt, nothing herein or in the Cash Collateral Orders shall 

constitute a provision of finding of fact that binds the Debtor’s estate or any 

party in interest with respect to the validity, perfection, or amount of the 

Lender’s prepetition lien, claim, or debt, or the waiver of claims against the 

Lender, in accordance with Section II(B)(2) of the Guidelines. In fact, the 

genesis of this Chapter 11 Case is the dispute relating to the outstanding 

amount due to the Lender that is collateralized.

c. Proposed Use of Cash Collateral: The Debtor proposes to use Cash Collateral 

solely for working capital purposes, including but not limited to, operating the 

Debtor’s business, including to pay wages, purchase supplies, and pay outside 

vendors, and such use shall be limited to the payment of such amounts and for 

such items.

d. Termination Date: The Debtor will continue to use its Cash Collateral 

(including both cash on hand and cash generated from the operation of its 

business) until the earliest occurrence of: (a) the date that is twenty-one (21) 

days following the entry of this Interim Order if the Final Order is not entered 

by such date; (b) the date set forth at the Hearing, if the Interim Order is 

modified by pronouncement in open court at the same; or (c) such date or time 

and on such term set forth in the Final Order, upon entry thereof.

e. Adequate Protection: The Debtor seeks an order of the Bankruptcy Court 

deeming that the Lender is adequately protected against the use of Cash 

Collateral by the Debtor in the form of an equity cushion of, at least, fifty-two 

percent (52%) in combination with the Debtor’s continued monthly payment 

of $123,960.89 as required under the Lender’s loan documents.

Case 21-17103-RAM Doc 3 Filed 07/21/21 Page 3 of 25
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Background 

I. General Background. 

5. On the date hereof, the Debtor filed a voluntary petition for relief under chapter 11 

of the Bankruptcy Code, commencing the above-captioned chapter 11 case (the “Chapter 11 

Case”) in the United States Bankruptcy Court for the Southern District of Florida 

(the “Bankruptcy Court”). 

6. The Debtor is operating its business and managing its property as a debtor and 

debtor-in-possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. As of the 

filing of this Motion, no request has been made for the appointment of a trustee or examiner and 

no statutory committee has been appointed in the Chapter 11 Case. 

7. The Debtor operates the Aloft Miami Brickell Hotel (the “Hotel”). The Hotel 

consists of fourteen stories, one hundred and sixty rooms, a fitness center, a large pool deck, a 

nine-hundred-square-foot terrace for events, and one hundred valet parking spaces. 

8. Due to the onset of the coronavirus pandemic, the Debtor’s main source of 

revenue—room stays—ceased, resulting in a substantial reduction in business. Because of this 

massive business decline, and in conjunction with other disputes and lender who was unwilling to 

accommodate the Hotel’s financial situation in respect of the temporarily reduced cashflows, the 

Debtor has faced significant financial hardship. The Debtor was ultimately forced to commence 

this Chapter 11 Case after an involuntary acceleration of its mortgage loan. The Debtor is 

confident that through the restructuring and reorganization pursuant to this Chapter 11 Case, the 

Debtor can resume its pre-pandemic level of operations poised for success. A more detailed 

description of the Debtor’s history and the facts surrounding the commencement of this Chapter 

11 Case is set forth in the First Day Declaration, which is incorporated herein by reference. 

Case 21-17103-RAM Doc 3 Filed 07/21/21 Page 4 of 25
5 

II. The Debtor’s Secured Capital Structure. 

9. The Debtor’s material debt consists of a first-lien, secured loan presently owned 

by the Lender, in the principal amount of $17,000,000 which presently forms the basis of that 

certain foreclosure action in the Eleventh Judicial Circuit Court, in and for Miami-Dade County, 

Florida, Case No. 2021-006249-CA-01, styled as DF VII REIT HOLDINGS, LLC v. MARY 

BRICKELL VILLAGE HOTEL, LLC, et al. (the “Foreclosure Action”). The First Day Declaration 

provides a more detailed account of the Foreclosure Action and the other events that precipitated 

the Chapter 11 Case. 

10. Between 2012 and 2014, the Debtor executed a series of loan documents (the “Loan 

Documents”), attached as Exhibit 1 through Exhibit 19 to that certain Verified Complaint filed on 

March 15, 2021 (the “Foreclosure Complaint”) in the Foreclosure Action. The Loan Documents 

include, as Exhibits 10, 17, 18 and 19 attached to the Foreclosure Complaint, certain financing 

statements filed with the Florida Secured Transactions Registry (the “Financing Statements”). 

11. The Financing Statements purport to establish a security interest in, inter alia, the 

Debtor’s: “(i) accounts receivable (including without limitation, any account, fees, charges or other 

payments arising from the use and occupancy of hotel rooms and/or other hotel or public facilities 

at the [Hotel]), (ii) credit card receivables, and (iii) reserves, escrow and deposit accounts 

maintained by Debtor with respect to the [Hotel] . . . .” The Financing Statements also purport to 

establish a security interest in “[a]ll leases, subleases or subsubleases, lettings, licenses, 

concessions or other agreements (whether written or oral) pursuant to which any Person is granted 

a possessory interest in, or right to use or occupy all or any portion of the [Hotel]” and all proceeds 

of the enumerated collateral. For the avoidance of doubt, and without waiver of any claim or 

defense of the Debtor, the security interests in Cash Collateral, to the extent that they exist, stem 

solely from the Lender’s purported interest in the Debtor’s accounts receivable, and not on account 

Case 21-17103-RAM Doc 3 Filed 07/21/21 Page 5 of 25
6 

of any “Assignment of Rents and Leases” contained in the Loan Documents, as courts applying 

Florida law have routinely held that hotel revenues are not real property rents, as such term is used 

in Section 697.07, Florida Statutes, or the Loan Documents. In re Shore Haven Motor Inn, Inc., 

124 B.R. 617, 618 (Bankr. S.D. Fla. 1991) (“A number of courts have addressed the issue of 

whether revenues derived from operation of a hotel are ‘rents’ subject to the security interest 

created by a recorded mortgage deed. The majority of jurisdictions, including the bankruptcy 

courts of this district, have declared hotel revenues to be personalty and not rents.”); In re Punta 

Gorda Assocs., 137 B.R. 535, 537 (Bankr. M.D. Fla. 1992) (same); In re Ashoka Enters., Inc., 125 

B.R. 845, 846 (Bankr. S.D. Fla. 1990) (same); Orlando Hyatt Assocs. v. FDIC, 629 So. 2d 975, 

976 (Fla. 5th DCA 1993) (same); Terant v. Beltway Capital, LLC, 147 So. 3d 1103, 1105-06 

(Fla.3d DCA 2014) (agreeing that “‘rents’ contemplated in Section 697.07 does not include the 

revenues collected by a hotel from charges to hotel guests,” but ruling that the issue was not 

properly appealed and the lower court’s incorrect application of law was not “fundamental error”). 

12. The Debtor reserves the right to contest the validity, priority, and extent of the liens 

and claims of the Lender, in accordance with the Interim Order and Final Order. 

Request for a Hearing to Consider Granting the 

Interim Order and Authorizing the Debtor’s Use of Cash Collateral 

13. Pursuant to Bankruptcy Rule 4001(b)(2), a final hearing on a motion to use Cash 

Collateral may not be commenced earlier than fourteen (14) days after service of such motion. 

Pursuant to the same, upon request, the Court may conduct a preliminary, expedited hearing on 

such motion and authorize the use of cash collateral to the extent “necessary to avoid immediate 

and irreparable harm to the estate pending a final hearing.” 

14. It is essential for the continued operation of the Debtor’s business that it be 

authorized by this Court to use Cash Collateral as set forth in the Interim Order pending the final 

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7 

hearing on the Motion. Unless this Motion is approved on an interim basis, the Debtor will have 

difficulty paying its employees and satisfying its ongoing operational obligations, which would 

have a devastating effect on the Debtor’s operations and hopes for effective reorganization. Thus, 

funds are urgently needed to meet all of the Debtor’s working capital and other liquidity needs. In 

the absence of immediate relief, the Debtor’s attempts to continue its business in the ordinary 

course will be immediately and irreparably jeopardized. 

15. Moreover, it is essential that the Debtor maintain its profits and have access to its 

Cash Collateral as a going concern, such that the Debtor can demonstrate to potential lenders that 

it is able to operate effectively, despite the Chapter 11 Case, and so it can obtain the critically 

needed financing. The Lender has thus far intentionally acted in a manner that has severely 

diminished the Debtor’s ability to obtain such financing. 

16. The interim relief requested herein is essential to enable the Debtor to fulfill its 

existing obligations. These sums will be required to pay employees, and other operating expenses 

that are the very minimum necessary for the Debtor to continue operating for the benefit of all of 

its creditor constituencies, including the Lender. 

17. Accordingly, the Debtor respectfully requests approval of the Motion, pending a 

final hearing on the Motion, on an emergency basis, on the terms and subject to the conditions set 

forth in the Interim Order, or on such other terms that the Bankruptcy Court may deem appropriate. 

Basis for Relief 

A. Applicable Standards for the Debtor’s Use of Cash Collateral. 

18. Section 363 of the Bankruptcy Code generally governs the use of estate property. 

Section 363(c)(2) governs a debtor’s use of cash collateral. It provides, in relevant part: 

The [debtor in possession] may not use, sell, or lease cash 

collateral under paragraph (1) of this subsection unless — 

Case 21-17103-RAM Doc 3 Filed 07/21/21 Page 7 of 25
8 

(A) each entity that has an interest in such cash collateral 

consents; or 

(B) the court, after notice and a hearing, authorizes such use, 

sale, or lease in accordance with the provisions of this 

section. 

19. Further, section 363(e) of the Bankruptcy Code provides for “adequate protection” 

of interests in property when a debtor uses cash collateral. Although section 361 of the Bankruptcy 

Code provides examples of forms of adequate protection, such as granting replacement liens and 

administrative claims, courts decide what constitutes sufficient adequate protection on a case-bycase basis. Desert Fire Prot. v. Fontainebleau Las Vegas Holdings, LLC (In re Fontainebleau Las 

Vegas Holdings, LLC), 434 B.R. 716, 749 (S.D. Fla. 2010) (“The adequacy of protection must be 

determined on a case by case basis.”) citing 3 Collier on Bankruptcy P 361.03[1]; In re Mosello, 

195 B.R. 277, 289 (Bankr. S.D.N.Y. 1996) (“[T]he determination of adequate protection is a factspecific inquiry . . . left to the vagaries of each case.”); In re Big Dog II, LLC, 602 B.R. 64, 64 

(Bankr. N.D. Fla 2019) (“What constitutes adequate protection is a question of fact to be 

determined on a case-by-case basis.”); SouthPoint Glob. Invs., LLC v. Warren (In re Westport 

Holdings Tampa, Ltd. P'ship), 607 B.R. 715, 729 (M.D. Fla. 2019) (“A determination of whether 

there is adequate protection is made on a case by case basis.”). 

20. Indeed, “[i]n many cases, the existence of an equity cushion in existing collateral 

is sufficient in and of itself to provide adequate protection of a secured creditor's interest in 

property.” In re M.D. Moody & Sons, Inc., 2010 Bankr. LEXIS 5220, at *22 (Bankr. M.D. Fla. 

Mar. 5, 2010); see also Acquisition Corp. of Am. v. Fed. Sav. & Loan Ins. Corp., 96 B.R. 380, 382 

n.8 (S.D. Fla. 1988) (holding, in the stay relief context governed by the same section of the 

Bankruptcy Code, “[i]t has been held that an equity cushion in and of itself is legally sufficient to 

satisfy the adequate protection requirement”); NLG, LLC v. Selective Advisors Grp., LLC, 2019 

U.S. Dist. LEXIS 49437, at *7 n.3 (S.D. Fla. Mar. 22, 2019) (“The United States Bankruptcy Code 

Case 21-17103-RAM Doc 3 Filed 07/21/21 Page 8 of 25
9 

provides for the concept of adequate protection for creditors in a bankruptcy proceeding which has 

been defined as “equity cushion” — the difference between the outstanding debt and value of the 

collateral.”). 

21. The degree of the “cushion” is of particular relevance in this analysis. Equity 

cushions of 20% or more have often been found, as a matter of fact, to be sufficient for adequate 

protection purposes, and courts have deemed even lesser cushions as adequate protection. In re 

M.D. Moody 2010 Bankr. LEXIS 5220, at *23; see also In re Hawaiian Pacific Industries, 17 B.R. 

670 (Bankr. D. Ha. 1982) (15% is adequate); In re Pitts, 2 B.R. 476 (Bankr. C.D. Ca. 1979) (15% 

is adequate); In re Rodgers Development Corp., 2 B.R. 679 (Bankr. E.D. Va. 1980) (17% is 

adequate); In re Las Torres Dev., LLC, 413 B.R. 687, 697 (Bankr. S.D. Tex. 2009) (20% is 

adequate); In re Mellor, 734 F.2d 1396, 1401 (9th Cir. 1984) (20% is adequate); In re Helionetics,

70 B.R. 433 (Bankr. C.D. Ca. 1987) (20.4% is adequate); In re Dunes Casino Hotel, 69 B.R. 784 

(Bankr. D. N.J. 1986) (30% is adequate); In re Ritz Theatres, 68 B.R. 256, 260 (Bankr. M.D. Fla. 

1987) (38% is adequate); In re Dunes Casino Hotel, 69 B.R. 784, 795-96 (Bankr. D.N.J. 1986) 

(45% is adequate); In re Nashua Trust Co., 73 B.R. 423, 433 (Bankr. D. N.J. 1987) (50% is 

adequate). 

B. The Debtor’s Use of Cash Collateral is Appropriate in the Instant Case. 

22. In the instant case, the Debtor seeks authorization to use Cash Collateral pursuant 

to section 363(c)(2)(B) (i.e., by authorization of the Bankruptcy Court). Further, given the tenor 

of the Lender to date, the notion of even discussing the use of cash was, in the Debtor’s judgment, 

futile. The Cash Collateral proposed to be used by the Debtors may include cash-on-hand and 

cash to be generated from the continued operations of the Debtor’s business, including hotel 

revenue and collection of its accounts receivable. 

23. The total amount owed to the Lender is (without concession as to the amount of 

Case 21-17103-RAM Doc 3 Filed 07/21/21 Page 9 of 25
10 

such claim or waiver as to any claim or defense related to such claim), at an absolute maximum, 

$21,374,747.11. The value of the Hotel alone (which is also collateral under the Loan Documents) 

is at least $32,000,000.00 (according to the Lender’s own appraisal). Accordingly, on account of 

the Hotel collateral alone, the Lender enjoys an equity cushion of 52%. When considering the fact 

that the Lender also has a security interest, under the Financing Statements, on personalty present 

on the Hotel’s premises in addition to any interest in Cash Collateral, this equity cushion actually 

exceeds 52%. 

24. Nevertheless, out of an abundance of caution and to ensure the Debtor is able to 

continue its operations with little disruption in the ordinary course and to facilitate the effective 

reorganization of the Debtor’s affairs, the Debtor will continue to make monthly payments to the 

Lender in the amount of $123,960.89. These payments, when viewed in conjunction with the 

immense equity cushion enjoyed by the Lender, provide ample adequate protection thereto 

sufficient to allow the Debtor to use its Cash Collateral. Further, the Debtor has a critical need to 

be able to demonstrate its profits so it can effectively refinance the loan with the Lender, which 

the Lender has engaged in intentional efforts to prevent from happening. 

25. It is well-established that a bankruptcy court may grant the use of Cash Collateral 

in order to preserve or enhance a debtor’s ability to remain a going-concern. In re George Ruggiere 

Chrysler-Plymouth, Inc., 727 F.2d 1017, 1019 (11th Cir. 1984). Because the Debtor has a dire 

need to continue its operations on an interim (and final) basis to achieve any hope at an effective 

reorganization, the Bankruptcy Court should enter the Interim Order (and, eventually, the Final 

Order) on the terms set forth therein to allow the Debtor’s use of Cash Collateral in order to 

preserve and enhance its ability to remain a going-concern. 

Case 21-17103-RAM Doc 3 Filed 07/21/21 Page 10 of 25
11 

Notice 

26. The Debtor will provide notice of this motion via first-class mail and electronic 

mail to: (a) the Office of the United States Trustee for the Southern District of Florida; (b) the 

Lender, (c) its creditors; and (d) any party that has requested notice pursuant to Bankruptcy Rule 

2002. The Debtor submits that, in light of the nature of the relief requested, no other or further 

notice need be given. 

No Prior Request 

27. No prior request for the relief sought in this motion has been made to this or any 

other court. 

[Remainder of Page Intentionally Left Blank] 

 

Case 21-17103-RAM Doc 3 Filed 07/21/21 Page 11 of 25
12 

WHEREFORE, for the reasons set forth herein, in the First Day Declaration, the Debtor 

respectfully requests that this Court (a) enter the Interim Order granting the relief requested herein 

on an interim basis, and (b) schedule the Final Hearing pursuant to Bankruptcy Rules 4001(b)(2) 

and 4001(c)(2) to consider entry of the Final Order, authorizing and approving use of cash 

collateral on a final basis, and (c) grant such other and further relief as the Court deems appropriate. 

Dated: July 21, 2021 

Miami, Florida 

Respectfully submitted,

PACK LAW 

Proposed Counsel to the Debtor and Debtor-inPossession 

51 Northeast 24th Street, Suite 108 

Miami, Florida 33137 

Telephone: (305) 916-4500

By: /s/ Joseph A. Pack

Joseph A. Pack 

Email: joe@packlaw.com 

Florida Bar No. 117882 

Jessey J. Krehl 

Email: jessey@packlaw.com 

Florida Bar No. 1025848 

Case 21-17103-RAM Doc 3 Filed 07/21/21 Page 12 of 25
Exhibit A 

Proposed Interim Order 

Case 21-17103-RAM Doc 3 Filed 07/21/21 Page 13 of 25
UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION

_____________________________________

)

In re: )

) Chapter 11 

Mary Brickell Village Hotel, LLC, )

) Case No. 21-17103 (RAM)

)

 Debtor.1)

_____________________________________ )

INTERIM ORDER 

(I) AUTHORIZING USE OF CASH COLLATERAL PURSUANT TO 11 U.S.C. § 363, 

(II) DEEMING ITS SECURED LENDER ADEQUATELY PROTECTION PURSUANT 

TO 11 U.S.C. §§ 361 AND 363, AND (III) SCHEDULING A FINAL HEARING 

Upon the motion, (the “Motion”)2 of Mary Brickell Village Hotel, LLC, the abovecaptioned debtor and debtor in possession (the “Debtor”) for entry of an interim order 

(this “Interim Order”) (i) authorizing use of Cash Collateral pursuant to 11 U.S.C. § 363, 

1

 The last four digits of the Debtor’s tax identification number are 7701. The Debtor’s principal address is 1001 

SW 2nd Ave., Miami, FL 33130. 

2

 All capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Motion. 

Case 21-17103-RAM Doc 3 Filed 07/21/21 Page 14 of 25
2 

(ii) granting adequate protection pursuant to 11 U.S.C. §§ 361 and 363, and (iii) scheduling a final 

hearing pursuant to Bankruptcy Rule 4001, all as more specifically set forth in the Motion; and 

upon the Declaration of Pedro Villar in Support of Chapter 11 Petition and First Day Pleadings 

(the “First Day Declaration”) filed contemporaneously with the commencement of this Chapter 11 

Case on July 21, 2021 (the “Petition Date”); and the Court having jurisdiction over this matter 

pursuant to 28 U.S.C. §§ 157 and 1334; and the Court having found that this is a core proceeding 

pursuant to 28 U.S.C. § 157(b)(2); and the Court having found that venue of this proceeding and 

the Motion in this district is proper pursuant to 28 U.S.C. §§ 1408 and 1409; and the Court having 

found that the relief requested in the Motion is in the best interests of the Debtor, its estate, its 

creditors, and other parties in interest; and the Court having found that the Debtor’s notice of the 

Motion and opportunity for a hearing on the Motion was appropriate and no other notice need be 

provided; and the Court having reviewed the Motion and having heard the statements in support 

of the relief requested therein at a hearing before the Court (the “Hearing”); and the Court having 

determined that the legal and factual bases set forth in the Motion and at the Hearing establish just 

cause for the relief granted herein; and upon all of the proceedings had before the Court; and after 

due deliberation and sufficient cause appearing therefor, 

IT IS HEREBY ORDERED THAT:3

1. The Motion is GRANTED, pending final hearing, as set forth herein. 

2. Objections to entry of the Final Order must be filed by 

_______________________, 2021 at [__] and served on the Debtor’s counsel. A final hearing, if 

required, on the Motion will be held n ___________________, 2020 at ________ __.m. (ET) 

3

 Findings of fact shall be construed as conclusions of law, and conclusions of law shall be construed as findings 

of fact when appropriate. See Fed. R. Bankr. P. 7052. 

Case 21-17103-RAM Doc 3 Filed 07/21/21 Page 15 of 25
3 

(the “Final Hearing”). If no objections are filed to the Final Order, the Court may enter the Final 

Order without further notice or hearing. 

3. The statutory predicates for the relief sought in the Motion are sections 105, 361, 

and 364 of the Bankruptcy Code, Rule 4001 of the Bankruptcy Rules and Rule 4001–2 of the Local 

Rules of the United States Bankruptcy Court for the Southern District of Florida (the “Local 

Rules”). 

4. Notice of the Motion for the Hearing on the Debtor’s proposed use of cash collateral 

has been served in accordance with section 102(1) of the Bankruptcy Code and Bankruptcy Rule 

4001(b), which notices are appropriate and sufficient for all purposes under the Bankruptcy Code 

and applicable Bankruptcy Rules with respect to the relief requested. 

5. The Court finds that the Debtor does not have sufficient unencumbered cash or 

other assets to continue to operate its business during this Chapter 11 Case or to effectuate a 

reorganization without the use of the Cash Collateral of the Lender. The Debtor will be 

immediately and irreparably harmed if it is not immediately granted the authority to use Cash 

Collateral in order to permit, among other things, the orderly continuation of its business, the 

ability to fund payroll and payroll taxes, satisfaction of its working capital needs, as well as the 

ability to pay taxes, inventory, supplies, overhead, insurance, and other necessary expenses. The 

access of the Debtor to sufficient working capital and liquidity made available through the use of 

Cash Collateral is vital to the preservation and maintenance of the going concern value of the 

Debtor and a successful reorganization of the Debtor. 

6. The Debtor has requested the immediate entry of this order pursuant to Bankruptcy 

Rule 4001(b) and (c), and Local Rule 4001-2. Absent the entry of this Order, the Debtor and its 

estate will be immediately and irreparably harmed. 

Case 21-17103-RAM Doc 3 Filed 07/21/21 Page 16 of 25
4 

7. The Debtor is hereby authorized to use Cash Collateral pursuant to and in 

accordance with the terms of this Interim Order until the earliest occurrence of: (a) the date that is 

twenty-one (21) days following the entry of this Interim Order if the Final Order is not entered by 

such date; (b) the date set forth at the Final Hearing, if the Interim Order is modified by 

pronouncement in open court at the same; or (c) such date or time and on such term set forth in the 

Final Order, upon entry thereof. 

8. Until the Final Hearing, which is hereby scheduled to occur on [__], 2021 at []:[] 

[].m. (EST), the Lender shall be deemed adequately protected for the Debtor’s use of Cash 

Collateral, by virtue of its equity cushion and the proposed payments thereto, as set forth more 

fully in the Motion. 

9. As set forth herein, the Debtor is authorized to use its Cash Collateral (including 

both cash on hand and cash generated from the operation of its business). 

10. The entry of this Interim Order is without prejudice to the rights of any party in 

interest, including any Official Committee of Unsecured Creditors (the “Committee”), appointed 

in this Chapter 11 Case, to challenge the prepetition liens of the Lender or any other party to the 

extent such a right exists. 

11. Nothing in this Interim Order authorizes the Debtor to accelerate any payments not 

otherwise due prior to the date of the Final Hearing. 

12. Nothing herein or in the Motion shall be construed as to limit, or in any way affect, 

the Debtor’s ability to dispute or contest the amount of or basis for any claims against the Debtor. 

13. All applicable financial institutions are authorized and directed to receive, process, 

honor, and pay, at the Debtor’s direction, to the extent of funds on deposit or otherwise available 

therefor, any and all checks drawn or electronic fund transfers requested or to be requested by the 

Case 21-17103-RAM Doc 3 Filed 07/21/21 Page 17 of 25
5 

Debtor in respect of any obligations contemplated within this Interim Order. 

14. The Debtor is authorized, but not directed, to issue new post-petition checks, or 

effect new electronic fund transfers, on account of any payments made hereunder to replace any 

prepetition checks or electronic fund transfer requests that may be lost or dishonored or rejected 

as a result of the commencement of the Debtor’s chapter 11 case. 

15. Nothing contained in this Interim Order or in the Motion, and no payments made 

pursuant to this Interim Order are intended to be or shall be construed as (a) an admission as to the 

validity, priority, or perfection of any claim or lien against the Debtor or its property, (b) a waiver 

of the Debtor’s or any appropriate party in interest’s rights to avoid or dispute any claim or lien 

against the Debtor or its property, or (c) an approval or assumption of any agreement, contract, 

program, policy, or lease under section 365 of the Bankruptcy Code. Likewise, any payment made 

pursuant to this Interim Order is not intended to be and shall not be construed as an admission to 

the validity, priority, or amount of any claim or a waiver of the Debtor’s rights to dispute such 

claim subsequently. 

16. The contents of the Motion are deemed to satisfy the requirements set forth in 

Bankruptcy Rules 6003 and 6004. 

17. Notwithstanding any provision in the Federal Rules of Bankruptcy Procedure to the 

contrary, (a) the terms of this Interim Order shall be immediately effective and enforceable upon 

its entry, (b) the Debtor is not subject to any stay in the implementation, enforcement or realization 

of the relief granted in this Interim Order, and (c) the Debtor may, in its discretion and without 

further delay, take any action and perform any act authorized under this Interim Order. 

18. The Court retains jurisdiction with respect to all matters arising from or related to 

the interpretation, implementation or enforcement of this Interim Order. 

Case 21-17103-RAM Doc 3 Filed 07/21/21 Page 18 of 25
6 

### 

Submitted by: 

Joseph Pack, Esq. 

Proposed Counsel for the Debtor and Debtor-in-Possession 

Pack Law, P.A. 

51 Northeast 24th Street, Suite 108 

Miami, Florida 33137 

Tel: 305-916-4500 

Email: joe@packlaw.com 

Attorney Joseph A. Pack, Esq. is directed to serve a copy of this order on interested parties who 

do not receive service by CM/ECF pursuant to applicable rules. 

 

Case 21-17103-RAM Doc 3 Filed 07/21/21 Page 19 of 25
Exhibit B 

Proposed Final Order 

Case 21-17103-RAM Doc 3 Filed 07/21/21 Page 20 of 25
UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION

_____________________________________

)

In re: )

) Chapter 11 

Mary Brickell Village Hotel, LLC, )

) Case No. 21-17103 (RAM)

)

 Debtor.1)

_____________________________________ )

FINAL ORDER (I) AUTHORIZING USE OF CASH COLLATERAL 

PURSUANT TO 11 U.S.C. § 363, (II) DEEMING ITS SECURED LENDER 

ADEQUATELY PROTECTION PURSUANT TO 11 U.S.C. §§ 361 AND 363 

Upon the motion, (the “Motion”)2 of Mary Brickell Village Hotel, LLC, the abovecaptioned debtor and debtor in possession (the “Debtor”) for entry of a final order (this “Final 

Order”) (i) authorizing use of Cash Collateral pursuant to 11 U.S.C. § 363, and (ii) granting 

adequate protection pursuant to 11 U.S.C. §§ 361 and 363, all as more specifically set forth in the 

1

 The last four digits of the Debtor’s tax identification number are 7701. The Debtor’s principal address is 1001 

SW 2nd Ave., Miami, FL 33130. 

2

 All capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Motion. 

Case 21-17103-RAM Doc 3 Filed 07/21/21 Page 21 of 25
3 

Motion; and the Court having jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334; 

and the Court having found that this is a core proceeding pursuant to 28 U.S.C. § 157(b)(2); and 

the Court having found that venue of this proceeding and the Motion in this district is proper 

pursuant to 28 U.S.C. §§ 1408 and 1409; and the Court having found that the relief requested in 

the Motion is in the best interests of the Debtor, its estate, its creditors, and other parties in interest; 

and the Court having found that the Debtor’s notice of the Motion and opportunity for a hearing 

on the Motion was appropriate and no other notice need be provided; and the Court having 

reviewed the Motion and having heard the statements in support of the relief requested therein at 

a hearing before the Court (the “Hearing”); and the Court having determined that the legal and 

factual bases set forth in the Motion and at the Hearing establish just cause for the relief granted 

herein; and upon all of the proceedings had before the Court; and after due deliberation and 

sufficient cause appearing therefor, 

IT IS HEREBY ORDERED THAT:3

1. The Motion is GRANTED, on a final basis, as set forth herein. 

2. The statutory predicates for the relief sought in the Motion are Bankruptcy Code 

§§ 105, 361, 362, and 363, Rule 4001 of the Bankruptcy Rules and Rule 4001–2 of the Local Rules 

of the United States Bankruptcy Court for the Southern District of Florida (the “Local Rules”). 

3. Notice of the Motion for the Final Hearing on the Debtor’s proposed financing and 

use of cash collateral has been served in accordance with section 102(1) of the Bankruptcy Code 

and Bankruptcy Rule 4001(b), which notices are appropriate and sufficient for all purposes under 

the Bankruptcy Code and applicable Bankruptcy Rules with respect to the relief requested. 

3

 Findings of fact shall be construed as conclusions of law, and conclusions of law shall be construed as findings 

of fact when appropriate. See Fed. R. Bankr. P. 7052. 

Case 21-17103-RAM Doc 3 Filed 07/21/21 Page 22 of 25
4 

4. The Court finds that the Debtor does not have sufficient unencumbered cash or 

other assets to continue to operate its business during this Chapter 11 Case or to effectuate a 

reorganization absent use of the Cash Collateral. The Debtor will be immediately and irreparably 

harmed if they are not immediately granted the authority to use Cash Collateral in order to permit, 

among other things, the orderly continuation of its business, the ability to fund payroll and payroll 

taxes, satisfaction of its working capital needs, as well as the ability to pay taxes, inventory, 

supplies, overhead, insurance and other necessary expenses. The access of the Debtor to sufficient 

working capital and liquidity made available through the use of Cash Collateral is vital to the 

preservation and maintenance of the going concern value of the Debtor and a successful 

reorganization of the Debtor. 

5. Based on the record before the Court, the terms of the use of Cash Collateral and 

the adequate protection explained and provided for in the Motion has been proposed in good faith, 

as that term is used in section 364(e) of the Bankruptcy Code and are in the best interest of the 

Debtor, its estate, and creditors, and are consistent with the Debtor’s fiduciary duties. 

6. The Debtor has requested the immediate entry of this order pursuant to Bankruptcy 

Rule 4001(b) and (c), and Local Rule 4001-2. Absent the entry of this Order, the Debtor and its 

estate will be immediately and irreparably harmed. 

7. The Debtor is hereby authorized to use Cash Collateral pursuant to and in 

accordance with the terms of this Interim Order until the earliest occurrence of: (a) the date that is 

twenty-one (21) days following the entry of this Interim Order if the Final Order is not entered by 

such date; (b) the date set forth at the Final Hearing, if the Interim Order is modified by 

pronouncement in open court at the same; or (c) such date or time and on such term set forth in the 

Final Order, upon entry thereof. 

Case 21-17103-RAM Doc 3 Filed 07/21/21 Page 23 of 25
5 

8. As set forth herein, the Debtor is authorized, on a final basis, to use its Cash 

Collateral (including both cash on hand and cash generated from the operation of its business). 

9. The entry of this Final Order is without prejudice to the rights of any party in 

interest, including the Official Committee of Unsecured Creditors (the “Committee”), if any, 

appointed in this Chapter 11 Case, to challenge the prepetition liens of the Lender or any other 

party to the extent such a right exists, provided however, any challenges to the validity, extent or 

priority of the liens or claims of the Lender or any other party. 

10. Nothing in this Final Order authorizes the Debtor to accelerate any payments not 

otherwise due prior to the date of the Final Hearing. 

11. Nothing herein or in the Motion shall be construed as to limit, or in any way affect, 

the Debtor’s ability to dispute or contest the amount of or basis for any claims against the Debtor. 

12. All applicable financial institutions are authorized and directed to receive, process, 

honor, and pay, at the Debtor’s direction, to the extent of funds on deposit or otherwise available 

therefor, any and all checks drawn or electronic fund transfers requested or to be requested by the 

Debtor in respect of any obligations contemplated within this Final Order. 

13. The Debtor is authorized, but not directed, to issue new postpetition checks, or 

effect new electronic fund transfers, on account of any payments made hereunder to replace any 

prepetition checks or electronic fund transfer requests that may be lost or dishonored or rejected 

as a result of the commencement of the Debtor’s Chapter 11 Case. 

14. Nothing contained in this Final Order or in the Motion, and no payments made 

pursuant to this Final Order are intended to be or shall be construed as (a) an admission as to the 

validity, priority, or perfection of any claim or lien against the Debtor or its property, (b) a waiver 

of the Debtor’s or any appropriate party in interest’s rights to avoid or dispute any claim or lien 

Case 21-17103-RAM Doc 3 Filed 07/21/21 Page 24 of 25
6 

against the Debtor or its property, or (c) an approval or assumption of any agreement, contract, 

program, policy, or lease under section 365 of the Bankruptcy Code. Likewise, any payment made 

pursuant to this Final Order is not intended to be and shall not be construed as an admission to the 

validity, priority, or amount of any claim or a waiver of the Debtor’s rights to dispute such claim 

subsequently. 

15. The contents of the Motion are deemed to satisfy the requirements set forth in 

Bankruptcy Rules 6003 and 6004. 

16. Notwithstanding any provision in the Federal Rules of Bankruptcy Procedure to the 

contrary, (a) the terms of this Final Order shall be immediately effective and enforceable upon its 

entry, (b) the Debtor is not subject to any stay in the implementation, enforcement or realization 

of the relief granted in this Final Order, and (c) the Debtor may, in its discretion and without further 

delay, take any action and perform any act authorized under this Final Order. 

17. The Court retains jurisdiction with respect to all matters arising from or related to 

the interpretation, implementation or enforcement of this Final Order 

### 

Submitted by: 

Joseph Pack, Esq. 

Proposed Counsel for the Debtor and Debtor-in-Possession 

Pack Law, P.A. 

51 Northeast 24th Street, Suite 108 

Miami, Florida 33137 

Tel: 305-916-4500 

Email: joe@packlaw.com 

Attorney Joseph A. Pack, Esq. is directed to serve a copy of this order on interested parties who 

do not receive service by CM/ECF pursuant to applicable rules. 

Case 21-17103-RAM Doc 3 Filed 07/21/21 Page 25 of 25