Opinion
Case No. 02-00979-KL3-11 Jointly Administered
February 11, 2003
Craig V. Gabbert, Jr., David P. Canas, HARWELL HOWARD HYNE, GABBERT MANNER, P.C., Nashville, Tennessee; Attorneys for Debtors
Robert C. Goodrich, Jr., STITES HARBISON, PLLC., SunTrust Center, Nashville, Tennessee; Attorneys for Transamerica Equipment Financial Services Corporation
AGREED ORDER RESOLVING MOTION FOR ADMINISTRATIVE EXPENSE CLAIM BY TRANSAMERICA EQUIPMENT FINANCIAL SERVICES
It appears to the Court, as evidenced by signatures of counsel below, that Pen Holdings, Inc., on its own behalf and on behalf of its subsidiaries and affiliates (collectively referred to herein as "Debtors") and Transamerica Equipment Financial Services ("Transamerica"), agree as follows:
1. On November 12, 2002, Transamerica filed a Motion to Compel Payment Pursuant to 11 U.S.C. § 365 (d)(10) and for Allowance and Payment of an Administrative Expense Claim (the "Transamerica Claims Motion"). In the Transamerica Claims Motion Transamerica sought payment of an allowed administrative expense claim of $580,169.68.
2. The Debtors timely filed an objection to the Transamerica Claims Motion on December 4, 2002, contesting this amount from both a factual and legal standpoint.
3. After a course of negotiation and review, and in an effort to avoid further litigation fees and expenses, Debtors and Transamerica have agreed to settle the Transamerica Claims Motion under the following terms (the "Settlement Agreement"):
(a) Transamerica shall have an allowed administrative expense claim in the amount of $291,144.93 (the "Transamerica Claim");
(b) The Debtors shall pay the Transamerica Claim as follows:
(i) transfer of $265,000 in collected funds on or before March 14, 2003; and
(ii) credit toward the Transamerica Claim by Transamerica of $26,144.93 of Debtors' funds currently held as a deposit by Transamerica.
(c) Transamerica accepts payment by the Debtors of the Transamerica Claim under the terms stated herein, as full and final satisfaction of any and all administrative claims that Transamerica has in these bankruptcy cases pursuant to § 365(d)(10) and § 503 as asserted in the Transamerica Claims Motion.
4. Nothing in the Settlement Agreement shall be interpreted as prohibiting Transamerica from pursuing its unsecured non-priority pre-petition and rejection damages claims, and Transamerica expressly reserves the right to raise any such claims in these case, other than claims pursuant to § 365(d) and § 503 of the Bankruptcy Code. The Debtors reserve their rights to object to any and all claims made by Transamerica in these case.
This Court has determined that granting the relief agreed to by the Debtors and Transamerica as stated herein is in the best interest of the Debtors, its estate and creditors. It further appears that notice and an opportunity to object to the entry of this Agreed Order shall be provided consistent with Rule 9019 of the Bankruptcy Rules of Procedure, and upon the record and after due deliberation, and good and sufficient cause appearing, it is hereby
ORDERED, ADJUDGED AND DECREED that:
1. The Settlement Agreement is hereby approved.
2. Debtor shall serve this Agreed Order on the parties listed on the Limited Mailing Matrix as authorized by Order of this Court entered on January 30, 2002.
3. ANY OBJECTIONS TO THE RELIEF REQUESTED IN THE MOTION MUST BE FILED IN WRITING WITH THE COURT WITHIN 20 DAYS AFTER THE DATE OF ENTRY OF THIS ORDER AND A COPY MUST BE SERVED ON COUNSEL FOR THE DEBTORS AT THE ADDRESSES BELOW, UPON THE U.S. TRUSTEE AT 318 CUSTOMS HOUSE, 701 BROADWAY, NASHVILLE, TENNESSEE, 37203, AND UPON COUNSEL FOR TRANSAMERICA, AT THE ADDRESS BELOW.
6. IF A WRITTEN OBJECTION IS TIMELY FILED AND SERVED IN ACCORDANCE HEREWITH, SUCH OBJECTION SHALL BE HEARD ON THE 25th DAY OF MARCH 2003, AT 9:00 A.M., IN COURTROOM TWO, CUSTOMS HOUSE, 701 BROADWAY, NASHVILLE, TENNESSEE,
7. Subject only to timely sustained objections, this Order shall be effective as of the date of its entry without further notice or hearing.