Hearing Date: April 1, 2011 at 10:00 a.m.

Todd M. Galante (TG-5532) Jason C. DiBattista (JD-2859) LECLAIRRYAN, A PROFESSIONAL CORPORATION 830 Third Avenue Fifth Floor New York, New York 10022 Telephone: (212) 430-8020 Facsimile: (212) 430-8079 Counsel for F&G Mechanical Corporation and Meadowlands Fire Protection UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------- x : In re: : : LEHR CONSTRUCTION CORP., : : Debtor. : : : ------------------------------------------------------------- x

Chapter 11 Case No. 11-10723 (SHL)

CERTIFICATION OF SALVATORE FICHERA OF F&G MECHANCIAL CORPORATION AND MEADOWLANDS FIRE PROTECTION IN CONNECTION WITH DEBTORS AMENDED MOTION FOR ENTRY OF AN ORDER AUTHORIZING PAYMENT OF PREPETITION CRITICAL CONSTRUCTION VENDOR CLAIMS AND TO PROVIDE ADEQUATE ASSURANCE OF FUTURE PERFORMANCE FOR SUBCONTRACTORS AND MATERIALMEN WHO HAVE STATUTORY LIEN RIGHTS I, SALVATORE FICHERA, of full age, hereby certify as follows: 1. I am the President of F&G Mechanical Corporation (F&G) and the Secretary

and Treasurer of Meadowlands Fire Protection (MFP). I submit this Certification based upon my personal knowledge and information unless otherwise stated. 2. Lehr Construction Corporation (the Debtor) entered into an agreement with

NBA Properties, Inc. (the NBA), in connection with a construction project located at 100 Plaza

Drive, Secaucus, New Jersey 07094 (the Project) being completed by the Debtor, as general contractor, for the NBA, the Project tenant 3. The Debtor, as general contractor, contracted with various sub-contractors to

perform work in connection with the Project. 4. On or about December 16, 2010, the Debtor issued Purchase Order No. 155282

(the F&G Purchase Order) to F&G in the amount of $1,463,000.00 in connection with the installation of certain heating, ventilation and air conditioning (HVAC) systems by F&G in connection with the Project.1 5. F&G counter-executed the F&G Purchase Order as sub-contractor on or about

January 28, 2011. 6. On or about December 16, 2010, the Debtor issued Purchase Order No. 155281

(the MFP Purchase Order and together with the F&G Purchase Order, the Purchase Orders) to MFP in the amount of $486,000.00 in connection with the installation of certain fire prevention/protection systems by MFP in connection with the Project.2 7. MFP counter-executed the MFP Purchase Order as sub-contractor on or about

February 1, 2011. 8. On or about February 18, 2011, F&G issued Invoice No. 6356 to the Debtor (the

F&G Invoice), in the original contract amount of $1,463,000.00, and setting forth, among other things, the payment terms in connection therewith.3

A copy of the F&G Purchase Order was attached as Exhibit A to the Motion to Compel (as defined below), filed with the Court on March 14, 2011.
1 2

A copy of the MFP Purchase Order was attached as Exhibit B to the Motion to Compel. A copy of the F&G Invoice was attached as Exhibit C to the Motion to Compel.

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9.

On or about February 23, 2011, MFP issued Invoice No. 52969 to the Debtor (the

MFP Invoice and together with the F&G Invoice, the Invoices), in the original contract amount of $486,000.00, and setting forth, among other things, the payment terms in connection therewith.4 10. F&G and MFP commenced work on the Project on or about January 27, 2011,

including but not limited to providing goods, materials and services in connection with the Project, as a sub-contractor, pursuant to the Purchase Orders and the Invoices. 11. Prior to the Petition Date (as defined below), F&G provided goods and services to

the Debtor in connection with the Project with a total value of $369,620.00 (which amount includes retainage under the F&G Purchase Order). During that same pre-petition time period, MFP provided goods and services to the Debtor in connection with the Project with a total value of $57,258.00 (which amount includes retainage under the MFP Purchase Order). 12. On February 21, 2011 (the Petition Date), the Debtor filed a voluntary petition

for relief under Chapter 11 of Title 11, United States Code, Case No. 11-10723 (SHL) in the United States Bankruptcy Court for the Southern District of New York. 13. Following the Debtors filing for Chapter 11 protection, F&G and MFP have

engaged (and continue to engage) in regular communications with the Debtor and its professionals regarding the Project and the issues herein. 14. F&G and MFP have been assured on numerous occasions by the Debtor that: (i)

the goods and services being provided to the Debtor by F&G and MFP were (and continue to be) critical, necessary and essential to maintaining the Debtors operations with respect to the Project; (ii) F&G and MFP will be paid in full by the Debtor for all pre-Petition Date amounts owed; (iii) F&G and MFP will be paid in full for any and all post-Petition Date administrative
4

A copy of the MFP Invoice was attached as Exhibit D to the Motion to Compel.

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obligations incurred, and the Debtor will also honor any and all other pre-existing and/or additional contractual obligations to F&G and MFP pursuant to the Purchase Orders and the Invoices. 15. In addition, the Debtor has recently requested that F&G and MFP undertake

certain additional tasks with the respect to the Project that are outside the scope of the original Purchase Orders, which F&G and MFP have thus far not agreed to undertake pending resolution of the issues herein (specifically, and without limitation, pending full payment of pre-Petition Date amounts owed as well as assumption of the Purchase Orders). 16. At the request and urging of the Debtor and its counsel, F&G and MFP have, to

date, forestalled the filing of, among other things, mechanics liens and the taking of other actions with respect to the Project. MFP and F&G have done so in direct reliance on the Debtors numerous promises and statements that, among other things, it would place F&G and MFP on its critical vendor list and pay them in full for both pre- and post-Petition Date sums due, as well as honor any and all other post-Petition Date contractual obligations to F&G and MFP. 17. Moreover, F&G and MFP have recently been contacted by their own sub-sub-

contractors (the Sub-Contractors) regarding payment in connection with the Project. The SubContractors have also, to date, forestalled the filing of mechanics liens and the taking of other actions with respect to the Project, with the expectation that the Debtor will make full payment to F&G and MFP for both pre- and post-Petition Date goods and services delivered and provided. I believe that unless the concerns of F&G and MFP as outlined herein and in their filings are satisfied by the Debtor, there is a real possibility that the vital Sub-Contractors utilized by F&G and MFP in connection with the Project may file mechanics liens and/or possibly even walk off

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the job. The result of this would be a lose/lose situation for all parties and would cause significant disruption at the work site. 18. Therefore, at the urging of certain of its critical and essential sub-contractors,

including F&G and MFP, on March 9, 2011, the Debtor filed its Motion for Entry of an Order Authorizing Payment of Prepetition Critical Construction Vendor Claims and to Provide Adequate Assurance of Future Performance for Subcontractors and Materialmen Who Have Statutory Lien Rights (the Critical Vendor Motion). 19. Out of an abundance of caution, and in order to protect the rights of MFP and

F&G, on or about March 14, 2011, F&G and MFP filed its Motion for Entry of an Order Pursuant to Sections 503(b)(1), 507(a), 365(d)(2) and 362(d)(1) of the Bankruptcy Code: (i) Compelling Allowance and Immediate Payment of Post-Petition Administrative Expense Claims Once Such Funds are Received by the Debtor from the NBA; and (ii) Compelling the Debtor to Assume or Reject Certain Executory Contracts or, in the Alternative, Modifying the Automatic Stay to Permit F&G and MFP to Terminate the Executory Contracts at Their Sole Discretion (the Motion to Compel). 20. The Motion to Compel was accompanied by a motion for an order shortening the

time period for notice of the Motion to Compel. On March 16, 2011, the Court entered the order shortening time, and scheduled a hearing on the Motion to Compel originally for March 23, 2011 at 11:00 a.m. That date was subsequently adjourned on the record at the March 23, 2011 hearing, and a hearing on the Motion to Compel is now scheduled for April 1, 2011 at 10:00 a.m., as discussed below. 21. In addition, in order to further protect their rights, on March 17, 2011, F&G and

MFP filed their limited objection (the Limited Objection) to the Debtors motion for entry of

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an order authorizing payment of prepetition critical construction vendor claims and to provide adequate assurance of future performance for subcontractors and materialmen who have statutory lien rights. With respect to the Limited Objection, F&G and MFP supported the Debtors efforts to obtain authorization to identify and select Critical Construction Vendors (as defined in the Critical Vendor Motion), to pay any and all pre-petition obligations to those essential service providers, and to segregate the funds it receives from the NBA for payment to such Critical Construction Vendors on account of post-petition services and goods provided into a separate bank account for the benefit of the Critical Construction Vendors. However, pursuant to the Limited Objection, F&G and MFP requested that the Debtor specifically include F&G and MFP on the Critical Construction Vendor List; (ii) identify and allow the amount of the prePetition Date claims of F&G and MFP; and (iii) require the Debtor to make such payments to F&G and MFP within a time certain. 22. Prior to the hearing on March 23, 2011, the Debtor engaged in further discussions

with F&G and MFP with respect to the Motion to Compel and the Limited Objection. In that regard, the Debtor and MFP/F&G agreed to adjourn the Critical Vendor Motion and the Motion to Compel to April 1, 2011 at 10:00 a.m., and such agreement was placed on the record at the March 23, 2011 hearing. In addition, the Debtor agreed to, prior to April 1, 2011, file an amendment to the Critical Vendor Motion: (i) identifying F&G and MFP as Critical Construction Vendors; (ii) requiring the Debtor to make pre-Petition Date payments to F&G and MFP as critical vendors in the following amounts: $369,620.00 (F&G) and $57,258.00 (MFP),5 which payments would not be the subject of further dispute by the Debtor or any other party. The Debtor further agreed, in the event that the Court fails to enter an order granting the Critical Vendor Motion at the April 1, 2011 hearing, the Debtor shall withdraw its objection to the
5

Both amounts listed include retainage under the Purchase Orders.

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Motion to Compel, will in fact consent to the assumption of the Purchase Orders, file a pleading in support thereof, and produce a witness(es) to testify in support of such relief. 23. The Debtor filed such an amendment to the Critical Vendor Motion on March 28,

2011 (the Amended Critical Vendor Motion). The Amended Critical Vendor Motion, among other things, properly identifies F&G and MFP as Critical Construction Vendors, lists amounts due and owing to those entities, and seeks authority to issue two-party checks to be endorsed by the Debtor and each Critical Construction Vendor for all future payments to all sub-contractors and vendors involved with the Project, whether for outstanding pre-petition or post-petition amounts. However, it should be noted that the pre-petition amounts owed by the Debtor to MFP and F&G as listed on Exhibit B to the Amended Critical Vendor Motion do not include the retainage being held back pursuant to the Purchase Orders. Typically, retainages are paid to subcontractors at the completion of the job - and such is the Debtors contractual arrangement with F&G and MFP. Any order granting the Amended Critical Vendor Motion must also include a provision authorizing the Debtor to pay any and all retainages in full to MFP and F&G as postpetition obligations, pursuant to the terms and conditions of the Purchase Orders, as well as specifically authorizing the Debtor to enter into the two-party check system with the NBA. 24. F&G and MFP believe they are entitled to the relief sought in the Limited

Objection (and the Amended Critical Vendor Motion), the Motion to Compel and the other relief listed in paragraph 23 herein. In the event that such relief is not granted, F&G and MFP reserve the right, and in fact may, immediately take any and all steps to protect and assert their rights, including but not limited to, assertion of mechanics liens under applicable state law.

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I hereby certify that the foregoing statements made by me are true and accurate to the best of my knowledge. I am aware that if any of forego ing statements made by are willfully false, I am subject to punishment. Dated: Marc~ , 2011

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SALVATORE FICHERA

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