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1. 12:06 PM - CZAW Bankruptcy Petition (Kata)
2. 12:19 PM - CZAW Deposit Holders Warning (Kata)
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Subject: | CZAW Bankruptcy Petition |
Regional Court in Brno Court: Regional Court in Brno
Husova 15 Arrived: 21.05.2008, 07:50
601 95 Brno Number of parties/attachments: 17/
File no.: KSBR 44 INS 1207/2008
Prague, 20.5.2008
Petitioner: COMINVEST ASSOCIATED LIMITED, with its registered office at Pasea Estate,
Road Town, Tortola, British Virgin Islands, company no. (registration no.):
626279
Debtor: CZECH AIRCRAFT WORKS spol. s r.o., with its registered office at Kunovice,
Na Zhonech 212, Post Code 686 04, company no. 251 10 969, entered in the
register maintained by the Regional Court in Brno, section C, file no. 33816
STATEMENT OF THE PLAINTIFF
I.
In the resolution of the Regional Court of 7.5.2008 the petitioner was called upon
to give a statement to the pripis dluznika/registration of the debtor of 25.4.2008
and 30.4.2008.
On the basis of this call of the bankruptcy court, the petitioner submits this
statement.
II.
Bankruptcy proceedings were launched against the debtors assets on 27.3.2008. As
at todays date the court has received notices or registrations of receivables
of approximately 20 creditors, who have outstanding claims against the debtor
with a total value of CZK 51,000,000 (DEPOSITS NOT INCLUDED) with appurtenances,
and it can be assumed that other creditors will register their claims from
this date onwards.
The debtor is currently unable to meet its legal obligations towards the District
Social Security Administration (see this creditors notice dated 2.5.2008).
A similar delay with the payment of outstanding obligations can also be expected
in the case of the relevant tax office or health insurance companies. The debtors
employees were not paid their salaries for April and May.
III.
In its submission of 25.4.2008, the debtor submitted to the court a list of its
employees and a list of its assets (which is comprised of a list of warehouse
inventories valued at CZK 20,390,329.61, a list of production in progress valued
at CZK 12,220,365.06, a list of production in progress valued at CZK 616,000
and a list of finished products valued at CZK 4,866,227.71). Despite the debtors
numerous declarations that these lists are complete and correct, the petitioner
is convinced of the fact that the lists submitted by the debtor do not
give a true reflection of the assets owned by the debtor, but rather than the
debtors assets are overvalued.
Nevertheless, despite the petitioners above-mentioned reservations to the lists
submitted, it must be stated that even from these records it is clear that the
debtor meets all the legal prerequisites for over-indebtedness, as this term
is defined in Section 3(3) of Act No. 182/2006 Coll., the Bankruptcy Act (hereinafter
referred to as BA), namely:
i) the debtor has more than one creditor, and
ii) the sum of its obligations exceeds the value of its assets.
The petitioner is of the opinion that the documents submitted hitherto to the bankruptcy
court by the individual creditors as well as by the debtor prove the
debtors bankruptcy, as the debtor
i) has more than one creditor,
ii) has monetary obligations that are more than 30 days overdue,
iii) is unable to make good on these obligations.
In accordance with Section 3(2)(a) and (b) of the BA, the debtors inability to
pay may be deduced from the fact that
i) the debtor stopped the payment of a significant part of its monetary obligations,
whilst at the same time
ii) the debtor is not paying a significant part of its monetary obligations for
more than three months after their due date.
At the same time, the petitioner states that, contrary to Section 128(3) and Section
104 of the BA, the debtor has yet to submit to the court the requested list
of all its obligations, in spite of the fact that this list should form a
mandatory part of the accounting records that the debtor is obliged to keep by
law. Thus, by failing to submit the requested lists, another prerequisite for
the debtors inability to pay pursuant to Section 3(2)(d) of the BA.
IV.
The debtors bad financial situation was also confirmed by the debtors executive
director himself (see, for example, the declaration of the debtors executive
director that the value of the obligations was lowered from an initial value of
CZK 35.3 million to CZK 28.8 million; the declaration on page 1, where it is
expressly stated that CZAW was already bankrupt back in 2007, etc.) in his statement
(which forms an appendix to the statement of the debtor to the bankruptcy
of 25.4.2008).
The petitioner would also like to take this opportunity to emphasise the fact that
the statement of the debtors executive director contains a number of errors
as far as the debtors obligations are concerned. As has already been stated
above, the debtors executive director states that the debtors obligations reach
CZK 28.8 million. However, the interim results of the bankruptcy proceedings
show that this value is at least twice this amount (as at todays date the bankruptcy
court has received notices from creditors who have outstanding claims
against the debtor in excess of CZK 51 million).
The debtors executive director further states that in the period from 31.12.2008
(clearly this should be the period from 31.12.2007), a loan from KB totalling
CZK 5 million was to be paid by the debtor. But from the communication of the
company FAME Jihlava, a.s., submitted to the above court on 12.5.2008 it ensues
that this obligation was not settled by the debtor, but that this obligation
continues in existence (albeit under the title of undue enrichment, on account
of the debtor refusing, contrary to the loan agreement, to sign an amendment
thereto). This obligation has not been settled by the debtor to this date,
despite the fact that the debtor was repeatedly called upon to make good on this
obligation.
V.
The petitioner is unable to give an opinion on the other claims made by the debtor
in the statement of the debtors executive director regarding the internal
structure and management of CZAW, as it is not and never was a member of the debtor.
Nevertheless, according to the debtors memorandum of association (filed
in the collection of documents kept by the Regional Court in Brno) it is clear
that the debtors general meeting only reached quorum if attended by members
having at least 94.60% of the votes, with the member AIRCRAFT ENTERPRISES LTD.
holding 4515 votes, the member SLAVIA CAPITAL AERO (SC AERO) LIMITED holding
4965 votes, and the member Trihold Limited holding 540 votes. For any resolution
to be adopted, a 67% majority of all the votes of all members was always required.
>From the above, it is clear that SLAVIA CAPITAL AERO (SC AERO) LIMITED did not
have the majority of votes required to adopt or push through any resolution,
and therefore was unable by itself (i.e. without the co-operation of another member,
AIRCRAFT ENTERPRISES LTD., whose majority shareholder as ensues from the
Confirmation on Shareholder Status, again filed in the collection of documents
kept by the Regional Court in Brno is the debtors executive director, i.e.
Mr Chip W. Erwin), to push through any decision, take any measure or to damage
the debtor in any other way (as the debtor infers in its statement).
Evidence: Shareholder Status as at 13.11.2007
VI.
In its petition, the debtor states that it feels it has suffered damage, as COMINVEST
ASSOCIATED LIMITED did not contact it and evidently took no steps aimed
at the payment of the alleged receivable.
Once again, the above claim made by the debtor is not founded on truth, as documented
by the facts presented by the petitioner below.
On 31.1.2008, the Bill of Exchange was presented to the domicilat/domicilatory
for payment. By so doing, the condition of the due presentation of the bill of
exchange was met. The debtor was subsequently called upon to pay the outstanding
obligation. However, from the confirmation issued by SOB, a.s. of 14.2.2008
it is clear that the debtor did not react in any way to this call and failed
to make any payment towards the outstanding obligation.
Evidence: collection order from the bill of exchange of 31.1.2008
confirmation issued by SOB, a.s. of 14.2.2008 (file no. KSBR 44 INS 1207/2008)
COMINVEST ASSOCIATED LIMITED
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Message 2
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Subject: | CZAW Deposit Holders Warning |
Regional Court in Brno
Husova 15
601 95 Brno
Czech Republic
23 May 2008
Dear Sir,
Re: CZAW in liquidation
CASE FILE No. KSBR 44 INS 1207/2008
My name is Leonardo da Costa Sayago and I am the Managing Director and owner of
Aeromarine Lda.
Mr. Erwin offered to sell me 9% of CZAW for the sum of $800,000, but my financial
advisers told me not to invest.
A little later in the middle of 2006 I was given exclusive distribution rights
to all products of CZAW for Portugal and Spain (Atlantic to a meridian passing
through the centre of Madrid).
For these rights Mr. Erwin convinced me to send CZAW the sum of $300,100, as a
prepayment of 5 Sportcruisers and deposits on 5 Sportcruisers and 1 Mermaid. This
order was increased to 15 Sportcruisers and another $50,000 was sent. Deliveries
were promised at a rate of 2 per month starting March 2007.
In about May 2007 I visited the factory to see my planes and in the presence of
Mr. John Mohr Mr Erwin told me Why should I supply you the planes that you have
already paid for, just send another $300,000 .
He proceeded to steal my order OC 3984 and sold it to a client of mine. I said
you have from Aeromarine nearly $50,000 on this plane and now you are going to
receive $75,000 from my client. Do you want to be paid twice for the same plane?
He replied, What a good idea for my cash flow . My $15,000 commission was
never paid and he refused to even discuss it.
He also sold another plane to one of my clients, Mr. Pereira, and contrary to our
written agreement he refused to pay my company around $25 000 due on the transaction.
Mr Erwin holds $70,000 in deposits, approximately $40,000 in unpaid commissions,
$2,000 in warranty work on faulty planes which we did not claim as we knew
that he had been insolvent for some time.
After many false promises of delivery, he signed new contracts, now for 7 planes
in lieu of 8 outstanding (the stolen OC3984 he does not want to honour). Deliveries
were to start in Feb 2008.But as usual absolutely no deliveries were made.
Recently he promised to refund my deposits. I asked that he build me one
plane. He wrote a document in front of Mr. Robert Miller, Managing Director, Aeromarine
UK Ltd confirming the transfer of my deposits as payment in full for
a plane OC3988 which was to be delivered at the end of April. This plane has
been in the assembly line for 3 months but remains in the same state as the day
the document was signed.
Mr Erwins response when asked why it had not progressed was why should I deliver
it when it has already been paid in full.
I am a 64 year old Naval Architect. I have been in business since 1967. I have
dealt with many businesses from all over the World and I have NEVER come across
anybody capable of so much prevarication, fraud, lies, deception. I know this
gentleman has been involved with other companies that have gone bankrupt and
by all accounts he has been able to buy them back and continue to rob clients
of their hard earned cash. I hope this will not happen on this occasion. I am
$112,000 short and he plainly refuses to deliver my goods.
Having sold me the rights to sell in Portugal and Spain he has taken a considerable
amount of my money and failed to supply the goods. I understand he has now
given those rights to another company. I consider this as the worst type of
immoral behaviour.
Yours Faithfully
Leonardo da Sayago
C.Eng. FRINA
Managing Director
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