Opinion
Case No. 07-20251-RAG.
March 5, 2008
Barbara A. Gaughan, Esquire, Federal Bar No. 05050, Baltimore, Maryland, Counsel to BGE.
Michael G. Rinn, Esquire, Federal Bar No. 01310, Cockeysville, Maryland, Counsel to Debtor In Possession.
STIPULATION AND CONSENT ORDER UNDER 11 U.S.C. § 366(A) DETERMINING AND PROVIDING ADEQUATE ASSURANCE OF FUTURE UTILITIES PAYMENT S
Upon consideration of the consent of Three Pols, LLC the Debtor-In-Possession and BGE a provider of utilities to the Debtor-In-Possession to the entry of an Order in the following format, as reflected by their signatures or the signatures of their respective counsel, good cause having been shown, the following Stipulation is hereby approved to determine and provide adequate assurance of post petition payments pursuant to 11 U.S.C. 366(c)(2) to BGE.
JURISDICTION
1. This Court has jurisdiction to consider this Application pursuant to 28 U.S.C. § 1334. This is a core proceeding pursuant to 28 U.S.C. § 157(b). Venue is proper before this Court pursuant to 28 U.S.C. §§ 1408 and 1409.
BACKGROUND
2. On or about October 18, 2007 (the "Petition Date"), the Debtor filed a voluntary petition for relief under chapter 11 of title 11 of the United States Code ("Bankruptcy Code"). The Debtor continues to be authorized to operate its businesses and manage its properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code.
3. In the normal conduct of its business operations, the Debtor receives service from BGE ("BGE") for the provision of natural gas and electric utility service and supplies.
4. The Debtors' access to uninterrupted utility service from BGE is essential to its ongoing operations and therefore to the conduct of this case. Should BGE refuse or discontinue utility services, even for a brief period, the Debtor's business operations could be severely disrupted. If such disruption occurred, the impact on the Debtor's business operations and revenue would be extremely harmful and would jeopardize the Debtor's restructuring efforts. The Debtor's operate a retail restaurant business, containing perishable food. Any disruption of services would cause irreparable damage to the perishable goods thereby significantly impairing the Debtor's inventory and revenue. It is therefore critical that the utility services continue uninterrupted.
ADEQUATE ASSURANCE OF FUTURE UTILITIES PAYMENTS
5. The Debtor and BGE therefore have agreed and stipulated as follows:
a. BGE shall open an new account for the Debtor at 1438 Liberty Road effective 10/18/2007;
b. Debtor is authorized, to pay on a timely basis, in accordance with ordinary business terms practices, all undisputed invoices for post-petition utility services provided by BGE to the Debtor;
c. The Debtor shall provide to BGE a cash deposit of $14,548.00 based on average monthly amounts billed to the business location at 1438 Liberty Road, (the "Cash Deposit");
d. The Cash Deposit paid to BGE shall constitute adequate assurance of payment for future services as required under 11 U.S.C. § 366;
e. BGE shall be allowed to file a proof of claim in the Debtor's Bankruptcy proceedings, for pre-petition utility services billed to the business location at 1438 Liberty Road, for which the Debtor assumed liability pre-petition.
f. BGE is prohibited from altering, refusing, or disconnecting utility service to the Debtor or otherwise discriminating against the Debtor on account of unpaid pre-petition invoices, unless otherwise ordered by the Court.
SO ORDERED.