Case No. BK-N-03-52300 — BK-N-03-52304 and BK-N-03-52470 — BK-N-03-52474 Joint Administration.United States Bankruptcy Court, D. Nevada.
November 22, 2004
JUDY B. CALTON, ESQ., SCOTT A. WOLFSON, ESQ., HONIGMAN MILLER SCHWARTZ AND COHN LLP, Detroit, MI,
JOAN C. WRIGHT, ESQ., JAMES R. CAVILIA, ESQ., ALLISON, MaCKENZIE, RUSSELL, PAVLAKIS, WRIGHT FAGAN, LTD., Carson City, NV, Attorneys for Trustee.
Whitney B. Warnick, ALBRIGHT, STODDARD, WARNICK PALMER, Las Vegas, NV, Attorney for Movants.
ORDER APPROVING COMPROMISE AND DISMISSAL OF BONUS CLAIMS CONTESTED MATTER
GREGG ZIVE, Chief Judge, Bankruptcy
C. ALAN BENTLEY, Chapter 11 Trustee (the “Trustee”) of the captioned Debtors, by and through his counsel, having moved the Court for entry of an Order Approving Compromise and Dismissal of Bonus Claims Contested Matter (the “Motion”); notice having been given and a hearing held, no further notice or hearing being required; all capitalized terms not otherwise defined herein having the meanings ascribed in the Motion; the Court having considered the Motion, all pleadings submitted in connection therewith, and the arguments of counsel; the relief
requested in the Motion being in the best interests of the estate, and the Court being otherwise duly advised in the premises;
IT IS ORDERED that the Motion is granted. This Court approves the Settlement Agreement attached hereto.
IT IS FURTHER ORDERED that the Contested Matter is dismissed with prejudice.
IT IS FURTHER ORDERED that the Court directs entry of this Order as a final order.
C. Alan Bentley, Trustee (“Trustee”) of the Chapter 11 Debtors in In Re: Mego Financial Corporation, et al., Case Nos. BK-N-03-52300-52304 and BK-N-03-52470-52474 (Joint Administration) (collectively “Debtors”), and Phillip Froehlich, Victor McElroy, MaryLou Fox, and Kevin Shields (collectively “Movants”), enter into this Settlement Agreement and Release (“Agreement”) on September 28, 2004.
A. In July 2003, Debtors filed Voluntary Chapter 11 Petitions in Bankruptcy in the United States Bankruptcy Court for the District of Nevada and the Trustee was appointed.
B. On or about December 31, 2003, Movants and Kathleen Seymor filed their Motion for Entry of Order under 11 U.S.C. §§ 503 and 105 Authorizing Payment of Performance Bonuses to Employees of the Debtor’s Estate as Administrative Expenses (the “Bonus Motion”).
C. The filing of the Bonus Motion commenced a contested matter under Fed.R.Bank.P. 9014.
D. The Bonus Motion seeks administrative expense claims for Movants and Kathleen Seymor totaling $62,734.80 as follows:
Phillip Froehlich $21,888.00 Victor McElroy $10,833.60 Kevin Shields $11,383.20 Kathleen Seymor $12,150.00 MaryLou Fox $ 6,480.00 __________ Total $62,734.80
E. Kathleen Seymor has dropped her claim for an administrative expense claim in the amount of $12,150.00.
F. Following extensive negotiations between the Trustee and the Movants, and in the interest of avoiding further expense and risk of litigation, Movants and the Trustee desire to amicably resolve this contested matter.
BASED ON THE FOREGOING and for other good and valuable consideration, the receipt and adequacy of which is acknowledged, Movants and the Trustee agree, subject to approval by the Bankruptcy Court, as follows:
1. In full and complete satisfaction of any and all claims Movants have or may have against any one or more of the Debtors, including without limitation those claims in the Bonus Motion, the Trustee agrees that Victor McElroy, MaryLou Fox, and Kevin Shields shall have Chapter 11 administrative expense claims against Debtors in the aggregate sum of $21,848.40, which administrative claims shall be paid pari passu with other Chapter 11 administrative expense claims.
2. Phillip Froehlich agrees that he will not have an administrative expense claim against any one or more of the Debtors and hereby waives any such claim(s).
3. Effective upon approval of this Settlement Agreement by the Bankruptcy Court, Movants will dismiss the Bonus Motion with prejudice.
4. The Movants agree that they will not object to any of the fees incurred by the Trustee or his counsel in connection with Debtors, including, without limitation, fees incurred in connection with the Bonus Motion.
5. The Trustee reserves and does not waive any claims he may have against any one or more of the Movants.
6. Each party will bear his or her own expenses, including fees of their respective attorneys, accountants, and consultants in connection with this matter.
7. This Agreement is being entered into solely as a settlement of claims, and does not represent an admission by the parties hereto of any liability with respect to the claims and/or defenses asserted or which could have been asserted in this contested matter.
8. This Agreement constitutes the entire understanding of the parties in connection with the subject matter hereof and may only be amended or modified in a writing signed by the parties to be bound.
9. This Agreement will be governed by and construed in accordance with the laws of the State of Nevada, without regard to the conflicts of law provisions thereof.
10. This Agreement may be executed in counterparts and facsimile copies of signatures to effectuate the intent and purpose of this Agreement. Such counterparts and copies of signatures shall have the same force and effect as originals. This Agreement shall not be effective until executed and delivered by all of the parties hereto.
11. Each party agrees to execute such documents and undertake such acts as are necessary to effectuate the intent and purpose of this Agreement.
12. No party has assigned any claims relating to the subject matter of this Agreement.
13. The rights and interests of the parties under this Agreement are intended to benefit solely the parties to this Settlement Agreement.
14. Each party hereto acknowledges, represents, and warrants that each has read this Agreement in its entirety; each has apprised itself of sufficient information to intelligently decide whether to execute this Agreement; each party’s decision to execute this Agreement is not predicated on or influenced by any declarations or representations not set forth in this Agreement; each clearly understands this Agreement and each of its terms; each fully and unconditionally consents to the terms of this Agreement freely, voluntarily, with knowledge, and without duress; no party is relying upon any other representations, written or oral, express or implied, made by any person; the consideration is actual and adequate; each is duly authorized to
execute this Agreement and those persons executing this Agreement warrant that they have the power and authority to execute this Agreement.
IN WITNESS WHEREOF, the parties have today executed this Agreement.