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In re The Upper Room Bible Church, Inc., 16-12757 (2016)

Court: United States Bankruptcy Court, E.D. Louisiana Number: inbco20161123966 Visitors: 3
Filed: Nov. 22, 2016
Latest Update: Nov. 22, 2016
Summary: ORDER JERRY A. BROWN , Bankruptcy Judge . Considering the Stipulation by and Between Entergy Louisiana, LLC. and Debtor in Possession Concerning Adequate Assurance of Payment for Post-Petition Electric Services Pursuant To 11 U.S.C. 366 ("the Stipulation") entered into by Entergy Louisiana, LLC ("Entergy") and The Upper Room Bible Church, Inc. ("Debtor") in the above Chapter 11 case, and considering the premises, it is hereby ordered that the above stipulation, which is attached hereto as
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ORDER

Considering the Stipulation by and Between Entergy Louisiana, LLC. and Debtor in Possession Concerning Adequate Assurance of Payment for Post-Petition Electric Services Pursuant To 11 U.S.C. § 366 ("the Stipulation") entered into by Entergy Louisiana, LLC ("Entergy") and The Upper Room Bible Church, Inc. ("Debtor") in the above Chapter 11 case, and considering the premises, it is hereby ordered that the above stipulation, which is attached hereto as Exhibit "A," is approved and made the Order of this Court.

IT IS FURTHER ORDERED that movant shall serve this order on the required parties who will not receive notice through the ECF system pursuant to the FRBP and the LBR's and file a certificate of service to that effect within three days.

EXHIBIT A

IN THB UNITED STATES BANKRUPTCY COURT FOR THE EASTBRN DISTRICT OF LOUISIANA

IN RE: CHAPTER 11 THE UPPER ROOM BIBLE CHURCH, INC. CASE NO. 16-12757

STIPULATION AND ORDER BY AND BETWBEN ENTERGY NEW ORLEANS, INC. AND DEBTOR IN POSSESSION CONCERNING ADEQUATE ASSURANCE OF PAYMBNT FOR POST-PETITION ELECTRIC SERVICES PURSUANT TO 11 U.S.C. § 366

STIPULATION by Entergy New Orleans, Inc. ("Entergy") and The Upper Room Bible Church, Inc. ("Debtor") in the above Chapter 11 case, executed effective as of November 15, 2016.

FACTUAL BACKGROUND

WHEREAS, on November 8, 2016 (the "Petition Date"), the Debtor filed a voluntary petition pursuant to Chapter 11 of the U.S. Bankruptcy Code, 11 U.S.C. §§ 101, et seq. (the "Code").

WHEREAS, no Trustee nor examiner has been appointed and Debtor possesses and operates its estate as Debtor in Possession.

WHEREAS, Entergy supplies electric utility services to Debtor.

WHEREAS, Entergy is a "utility" within the meaning of and is entitled to adequate assurance of payment pursuant to Section 366 of the Code.

WHEREAS, Entergy's provision of utility services to Debtor and Debtor's consumption of such utility services were pursuant to the terms set forth in Entergy's invoices and the applicable tariffs, rules, regulations and laws governing Entergy's provision of public utility services (collectively, the "Regulations").

WHEREAS, Entergy continues to provide utility services to Debtor that are essential to Debtor's continued business operations.

WHEREAS, but for this Stipulation Entergy would have asserted, inter alia, that Section 366 requires that Entergy in this case be provided with a cash deposit as adequate assurance of payment in the amount of $6,645.00 for Debtor's various accounts. Entergy will instead maintain the pre-petition deposits totaling $5,038.000 covering Debtor's various accounts.

WHEREAS, Entergy and Debtor have reached an agreement on adequate assurance of payment under Section 366.

AGREEMENT

NOW, THEREFORE, the parties agree as follows:

1. Incorporation. The foregoing recitals are incorporated by reference.

2. Adequate Assurance of Payment. As assurance of payment for utility services provided after the Petition Date and during the above case, Debtor (a) shall pay Entergy for utility services provided by Entergy prior to the Petition Date and (b) hereby waives and releases any and all rights, claims, and actions that Debtor may have under Sections 547, 548, and/or 549 of the Code and/or any equivalent non-bankruptcy law as of the date of this Stipulation and Order. The parties estimate that as of the date of this Stipulation and Order the Debtor owes Entergy $4,565.00 for utility services provided by Entergy prior to the Petition Date. Debtor shall pay such $4,565.00 to Entergy within ten (10) days of Debtor's execution of this Stipulation and Order, regardless of whether by then the Court has entered this Stipulation and Order. Such payment shall be delivered to Entergy Services, Inc., L-JEF-359, 4809 Jefferson Highway, Jefferson, LA 70121, Attention: Jon A. Majewski. Should it later be determined that the actual amount owed to Entergy was not $4,565.00, an appropriate adjustment shall be made to the amount paid to Entergy pursuant to this paragraph.

3. Payment for Future Utility Services. Debtor shall timely pay all invoices from Entergy for post-petition services on the date due, in full, and otherwise in accordance with the Regulations ("Invoice Payments"). Invoice Payments shall be timely remitted to the appropriate payment address or location as provided pursuant to the invoices or the Regulations. Unless the parties otherwise agree in writing, all invoices to Debtor for post-petition utility services shall be transmitted to the addresses used for invoices prior to the Petition Date.

4. Termination Upon Non-Payment. Upon Debtor's failure to timely pay when and as due (a) any portion of any Invoice Payment or (b) any amount payable pursuant to Paragraph 2 of this Stipulation (in each case, a "Default"), Entergy shall have the right to terminate all services to Debtor in accordance with the notice provisions set forth under the Regulations unless such default is cured within such notice period. Debtor shall have the right to cure any such Default by making an immediate payment to Entergy in good and immediately available funds, or as otherwise agreed to by Entergy, prior to the expiration of the aforementioned termination notice period of the amounts then due and owing under this Stipulation (the "Cure Payment"). In the event that Debtor makes such a timely Cure Payment, Entergy shall not have the right to terminate or suspend the provision of services on account of the cured Default.

5. Additionally, after December 9, 2016, upon Debtor's failure to pay any portion of any Invoice Payment within fifteen (15) days after the date such Invoice Payment is due, Entergy shall be entitled to demand and to receive a cash deposit in the amount of $6,645.00 (The "Deposit"), less a credit for any amount of the pre-petition deposit remaining, which upon receipt by Entergy shall become additional assurance of payment for utility services provided by Entergy. Debtor shall be entitled to the return of the entire Deposit, and any entitled interest, after all final invoices have been paid in full; provided, however, that Debtor shall not be entitled to any portion of the Deposit, nor any interest, that Entergy applies to satisfy the amount of any unpaid, past-due invoices, and Entergy shall be permitted to apply the Deposit, plus any entitled interest, to said unpaid invoices and shall refund the excess, if any, to Debtor.

6. Termination Upon Conversion. Upon the entry of an order converting Debtor's Chapter 11 case to a case under Chapter 7, Entergy shall have the right to terminate all services to Debtor, provided, however, and without limiting any other termination rights of Entergy under this Stipulation, Entergy shall not exercise such right without first giving fifteen (15) days written notice of termination to the Debtor.

7. Non-Pavment Entitled to Administrative Expense. Upon Debtor's failure to pay any portion of an Invoice Payment or any amount due pursuant to Paragraph 2 of this Stipulation, Entergy shall have the right to an administrative priority expense claim pusuant to 11 U.S.C. § 503(b) with regard to such portion or amount.

8. No Injunctive Relief. Neither Debtor nor its counsel on its behalf shall seek the entry of an order restraining or enjoining Entergy's exercise of its rights under this Stipulation and Order, including but not limited to the termination rights described in the preceding paragraphs.

9. Billing or Other Disputes. Notwithstanding that Debtor may dispute Entergy's determination of the amount of any payment due under this Stipulation, Debtor's obligation to pay such amount in full, when and as due, is and shall be absolute. After payment, should Entergy and Debtor not resolve such dispute within thirty (30) days after Debtor has given written notice to Entergy of such dispute, Debtor may file a motion in this Court for a determination of the proper amount of such payment. Any payment made to Entergy is without prejudice to Debtor's right to recover any amount paid which is in excess of the amount due and owing to Entergy.

10. Notices. All notices, requests, demands, and other communications under this Stipulation shall be in writing and shall be deemed to have been duly given on the date of service if served personally, by email, or by facsimile transmission; or on the third day after mailing if mailed by first class mail, postage prepaid, and addressed to such party as follows:

If to Debtor: The Upper Room Bible Church, Inc. 8600 Lake Forest Blvd. New Orleans, LA 70121 with copy to: Stewart Robbins & Brown, LLC Paul Douglas Stewart, Jr. 620 Florida Street, Suite 100 Post Office Box 2348 Baton Rouge, LA 70821 Phone: (225) 231-9998 If to Entergy: Entergy Services, Inc. Attention: Jon A. Majewski, L-JEF-359 4809 Jefferson Highway New Orleans, LA 70121 Phone: (504) 840-2585 Facsimile: (504) 840-2685 Email: jmajews@entergy.com with copy to: Entergy Services, Inc. Attention: Sean D. Moore, L-ENT-26C 639 Loyola Avenue New Orleans, LA 70113 Phone: (504) 576-7048 Facsimile: (504) 576-4150 Email: smoore6@entergy.com

Any party may change its address by giving written notice to the other parties in the manner set forth

11. Calculation of Notice Periods. Any notice provided pursuant to this Stipulation shall not expire on a Saturday, Sunday, or "legal holiday" within the meaning of Fed.R.Bankr.P.9006(a). Any such notice period that would otherwise expire on a Saturday or "legal holiday" shall be deemed to expire at 5:00 P.M. prevailing Central Time on the next day that is not a Saturday, Sunday, or "legal holiday".

12. Execution in Counterparts. This Stipulation may be executed in any number of counterparts and by the different parties to this Stipulation on separate counterparts, each of which, when so executed, shall be deemed an original, but all such counterparts shall constitute but one and the same Stipulation.

13. Jointly Drafted. The preparation of this Stipulation has been a joint effort of the parties and the resulting document shall not, solely as a matter of judicial construction, be construed more severely against one of the parties than the other.

14. No Third Party Beneficiaries. The rights and benefits of this Stipulation shall not inure to the benefit of any third party.

15. No Assignment. This Stipulation is not assignable

16. Entire Agreement. This Stipulation constitutes the entire agreement between the parties concerning adequate assurance of payment for utility services provided during these bankruptcy cases and supersedes any and all prior agreements or understandings between them on such matters and may only be amended by a writing signed by the party against whom enforcement is sought.

17. Court Approval. Except as otherwise provided herein, this Stipulation is subject to and shall become binding upon the approval by the Court

18. No Effect upon Right Under §365, Etc. Nothing in this Stipulation and Order is intended to, or does, affect (I) Debtor's right to reject, assume and/or assign any agreement pursuant to, and in accordance with, 11 U.S.C. $365, (ii) Entergy's rights under 11 U.S.C. $365, if any, and the Regulations, or (iii) any other rights or defenses of the parties under the Bankruptcy Code or the Regulations which are not inconsistent with the terms of this Stipulation.

19. Successors. This Stipulation shall be binding upon Entergy and Debtor and each of their successors, including but not limited to any Chapter 11 Trustee in Debtor's bankruptcy case

AGREED AS TO FORM AND CONTENT:

/s/ Paul D. Stewart, Jr. /s/ Sean D. Moore Paul D. Stewart, Jr., La. Bar #24661 Sean D. Moore, La. Bar #20303 Attorney for The Upper Room Bible Church, Inc. Attorney for Entergy New Orleans, Inc. 620 Florida Street, Suite 100 639 Loyola Ave., Suite 2600 Post Office Box 2348 New Orleans, LA 70113 Baton Rouge, LA 10821 Phone: (504) 576-1048 Phone: (225)231-9998 Email: smoore6@entergy.com Email: dstewart@stewartrobbins.com
Source:  Leagle

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