Opinion
Case No.: 03-30459 (PM) and 03-30461 (PM) through 03-30464 (PM) and 03-30686 (PM) through 03-30687 (PM), (Jointly Administered under Case No.: 03-30459 (PM)).
July 8, 2008
So Stipulated and Agreed: LATHAM WATKINS LLP, Mark A. Broude, Esq., New York, NY, Counsel to Southaven Power LLC, — and — NEUBERGER, QUINN, GIELEN, RUBIN GIBBER, P.A.
Deborah Hunt Devan, Esq. (Bar No. 01479), Baltimore, MD, Local Counsel to Southaven Power LLC.
WHITEFORD, TAYLOR PRESTON, LLP, Paul M. Nussbaum, Esq. (Bar No. 04394), Martin T. Fletcher, Esq. (Bar No. 07608), Dennis J. Shaffer, Esq. (Bar No. 25680), Baltimore, Maryland, Counsel to the Debtors.
WHEREAS, on May 9, 2008, Southaven Power, LLC ("Southaven"), filed its Motion For An Order Compelling The Debtors To Make Interim Distributions to Southaven Power LLC or, In The Alternative, To Set A Distribution Date (the "Motion") in the Maryland Bankruptcy Court; and
WHEREAS, following the filing of the Motion, ET Power and Southaven entered into a stipulation (the "Stipulation") on May 27, 2008, pursuant to which ET Power has agreed to make a catch-up distribution to Southaven in the percentage amount that was distributed to parties with Allowed Class 6 Claims on the Initial Distribution Date (20%) of Southaven's allowed net claim against ET Power (the "Distribution") by the earlier of July 5, 2008 or five (5) days after the date upon which the settlement of the FERC/California Parties litigation has been approved by both FERC and the Maryland Bankruptcy Court; and
WHEREAS, on September 19, 2005, ET Power filed a claim (the "ET Preference Claim"), alleging the receipt of preferential transfers subject to avoidance and recovery by ET Power under Sections 547 and 550 of the Bankruptcy Code, against Southaven in Southaven's bankruptcy case in the amount of $950,629.65; and
WHEREAS, Southaven has recently filed its Plan of Reorganization Under Chapter 11 of the Bankruptcy Code (the "Southaven Plan"); and
WHEREAS, Southaven has determined that it will not object to, and will consent to the allowance of, the ET Preference Claim in full in the amount of $950,629.65, plus interest; and
WHEREAS, Southaven and ET Power agreed that ET Power would reserve fifty percent (50%) of the amount of the ET Preference Claim ($475,314.83) (the "Reserve") from the Distribution to cover the net amount of the ET Preference Claim that would be distributed to ET Power from Southaven's estate, taking into consideration a claim by Southaven under Section 502(h) of the Bankruptcy Code for the allowed amount of the ET Preference Claim and the amounts to be distributed from ET Power's estate thereon; and
WHEREAS, on July 2, 2008, ET Power made a distribution to Southaven in the amount of $60,281,929.29, which represents the full amount of the Distribution less the Reserve.
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by ET Power and Southaven that:
Within two business days of Southaven paying the ET Preference Claim in full, plus interest (as set forth in the Southaven Plan), in cash, without any offset or any reductions whatsoever or pursuant to the Southaven Plan, any plan confirmed in the Southaven bankruptcy case or otherwise, ET Power shall release the withheld portion of the Distribution to Southaven and shall treat the allowed Southaven 502(h) claim in accordance with ET Power's confirmed plan.