01/10/2008 346 Agreed Order (RE: related document(s)77 Motion for Relief From Stay, filed by Creditor John P Murphy, Creditor Pro Plas LLC, Creditor John P. Murphy III Revocable Trust No 1, Creditor 10315 LLC). (baa) (Entered: 01/10/2008)
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Doc 346
In Re:
Case No. 07-50935
Judge William S. Howard
Chapter 11
PRO MOLD, INC.
Debtor.
PRO PLAS LLC, JOHN P. MURPHY III REVOCABLE TRUST NO. 1, 10315 LLC AND JOHN P. MURPHY,
Movants,
v.
PRO MOLD, INC.,
Respondent.
AGREED FINAL ORDER ON MOTION FOR RELIEF FROM AUTOMATIC STAY FILED BY PRO PLAS LLC, JOHN P. MURPHY III REVOCABLE TRUST NO. 1, 10315 LLC AND JOHN P. MURPHY
On the ____ day of January 2008, came on to be considered the Motion for Relief from Automatic Stay filed by Pro Plas LLC, a Missouri limited liability company; John P. Murphy III Revocable Trust No. 1; 10315 LLC, a Missouri limited liability company; and John P. Murphy (collectively the “Murphy Entities”) (“Motion”) (D.E. #77) filed in the above-styled and numbered case. The Court finds that all parties received notice as required by law of the filing of the Motion (D.E. #77), the hearing thereon on November 19, 2007, the Court’s Order on the Motion (“Order”)(D.E. #322), the Motion for Immediate Relief Pursuant to Order on Motion for Relief (D.E. #___), the hearing thereon on December 20, 2007, and the Court’s Order thereon (D.E. #334). Further, the Court finds the parties have agreed as follows:
Jurisdiction and Bankruptcy Filing
1. The Court has jurisdiction regarding this matter pursuant to 28 U.S.C. §1334 and 28 U.S.C. §157 and the Local Rules for the United States District Court for the Eastern District of Kentucky.
2. This matter is a core proceeding pursuant to 28 U.S.C. §157(b)(2)(D).
3. On May 16, 2007 Debtor Pro Mold, Inc. (“Debtor Pro Mold”), filed its Voluntary Chapter 11 Petition for Relief in the United States Bankruptcy Court for the Eastern District of Kentucky, Lexington Division (“Court”).
4. Debtor Pro Mold continued to operate its business and manage its financial affairs pursuant to Sections 1107 and 1108 of the Bankruptcy Code from May 16, 2007 until October 3, 2007, under the control of James N. Turek, Sr., Debtor Pro Mold's President.
5. On October 3, 2007, this Court ordered the Appointment of a Chapter 11 Trustee. The Office of the United States Trustee appointed Kenneth Henry to serve as the Chapter 11 Trustee (“Trustee”).
6. Even with the appointment of a Chapter 11 Trustee, Debtor Pro Mold continues to struggle and its financial condition continues to decline.
December 6, 2007 Order (D.E. #322)_
7. On December 6, 2007 the Court signed and the Clerk entered the Order on Motion for Relief from Automatic Stay filed by the Murphy Entities (“Order”)(D.E. #322) and the Order is incorporated herein by reference.
December 20, 2007 Order (D.E. #334)_
8. On December 21, 2007 the Court signed and the Clerk entered the Order denying the Murphy Entities request for immediate relief from the automatic stay of 11 U.S.C. Section 362 pursuant to paragraph L(1) of the Order (D.E. #322) but authorizing the Murphy Entities to publish the notice of foreclosure in January 2008 (D.E. #334).
9. The Order (D.E. #334) is incorporated herein by reference.
Compromise and Settlement Agreement
10. The parties have entered into a Compromise and Settlement Agreement filed simultaneously herewith and incorporated herein by reference in its entirety (the “Agreement”) consistent with the Agreement, the parties have agreed that:
a) the Murphy Entities will be granted immediate relief from the automatic stay to foreclose their security interests in Debtor Pro Mold’s personal property or PMI Collateral;
b) Debtor Pro Mold will immediately surrender Debtor Pro Mold’s office and manufacturing facility to 10315 LLC;
c) the Murphy Entities may take immediate possession of and have beneficial use of the Pro Mold personal property or PMI Collateral and may use it in any lawful manner not inconsistent with their loan documents and Uniform Commercial Code Section 9-207 including operating the business in the ordinary course of business until the Murphy Entities foreclose upon the Pro Mold personal property or PMI Collateral; and
d) The parties have agreed that Trustee Henry will immediately deliver to the Murphy Entities a cashier’s check equal to the amount of the cash on deposit in any Pro Mold bank account as of the date of the entry of this Order and the Murphy Entities will use the cash on deposit as described in paragraph 10(c) of this Order.
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT,
A. The Murphy Entities shall be and are hereby granted immediate relief from the automatic stay to proceed with their state court remedies and foreclose on their respective security interests in Debtor Pro Mold’s personal property or PMI Collateral.
B. Debtor Pro Mold shall immediately surrender Debtor Pro Mold’s office and manufacturing facility to 10315 LLC.
C. The Murphy Entities may take immediate possession of and have beneficial use of the Pro Mold personal property or PMI Collateral and may use it in any lawful manner not inconsistent with their loan documents and Uniform Commercial Code Section 9-207 including operating the business in the ordinary course of business until the Murphy Entities foreclose upon the Pro Mold personal property or PMI Collateral.
D. Trustee Henry will immediately deliver to the Murphy Entities a cashier’s check equal to the amount of the cash on deposit in any Pro Mold bank account as of the date of the entry of this Order and the Murphy Entities will use the cash on deposit as described in paragraph C of this Order.
E. Oral findings of fact and conclusions made by the Court at the hearing are incorporated herein by reference in their entirety.
F. The automatic stay shall be and is hereby terminated as to the Pro Mold personal property or PMI Collateral.
AGREED TO AND TO BE ENTERED:
/s/E. Rebecca Case
E. Rebecca Case
Howard S. Smotkin
STONE, LEYTON & GERSHMAN,
A Professional Corporation
7733 Forsyth Boulevard, Suite 500
St. Louis, Missouri 63105
(314) 721-7011
rcase@stoneleyton.com
COUNSEL FOR JOHN P. MURPHY III REVOCABLE TRUST NO. 1; PRO PLAS LLC; 10315 LLC, AND JOHN P. MURPHY, III, INDIVIDUALLY
/s/Elizabeth Lee Thompson
Elizabeth Lee Thompson
STITES & HARBISON
250 West Main
2300 Lexington Financial Center
Lexington, Kentucky 40507
(859) 226-2389
ethompson@stites.com
COUNSEL FOR CHAPTER 11 TRUSTEE KENNETH HENRY
/s/Jonathan L. Gay
Jonathan L. Gay
Walther, Roark, Gay & Todd, PLC
163 E. Main Street, Suite 200
Lexington, KY 40588-1598
(859) 225-4714
jgay@wrgfirm.com
COUNSEL FOR CHAPTER 11 TRUSTEE STEPHEN PALMER
Pursuant to Local Rule 9022-1(c), Elizabeth Lee Thompson shall cause a copy of this order to be served on each of the parties designated to receive this order pursuant to Local Rule 9022-1(a) and shall file with the court a certificate of service of the order upon such parties within ten (10) days hereof.
Pro Mold, Inc.
Attorney for Debtor
Office of the U.S. Trustee
CWY Credit
Gregory R. Schaaf
Attorney for Official Unsecured Creditors’ Committee in Plasticon International, Inc.
Kenneth C. Henry
Attorney for Pro Mold Chapter 11 Trustee
Steven Palmer
Attorney for Plasticon Chapter 11 Trustee
Missouri Department of Revenue
Amended Master Service List No. 1
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The affixing of this Court's electronic seal below is proof this document has been signed by the Judge and electronically entered by the Clerk in the official record of this case.
Signed By:
William S. Howard
Bankruptcy Judge
Dated: Thursday, January 10, 2008
(wsh) |
