Stipulation and Agreed Order Modifying Proposed Payments — In re Panthera Enterprises, LLC, Case No. 2:19-bk-00787 (Chapter 7)

Source document: Stipulation And Agreed Order Modifying Proposed Payments; document type: stipulation and proposed agreed order.

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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

In Re:

PANTHERA ENTERPRISES, LLC,

Case No.: 2:19-bk-00787

Chapter 7

Debtor.

Judge Paul M. Black

STIPULATION AND AGREED ORDER MODIFYING PROPOSED PAYMENTS
TO CREDITOR WEST VIRGINIA PAVING, INC. FROM PROCEEDS OF SALE
COMES NOW West Virginia Paving, Inc., a secured creditor in this proceeding,
hereinafter WVP, and Aaron C. Amore, the Chapter 7 Trustee, and do agree and stipulate, and do
propose this Stipulation and Agreed Order with respect to the distribution of the proceeds of sale
as the same are embodied in the Trustee’s “Motion For An Order Approving The Sale Of The
Debtor’s Real Property And Novating Certain Government Contracts Free And Clear Of Liens,
Claims, Interests, And Encumbrances Pursuant To 11 U.S.C. § 363” (hereinafter referred to as
“the Sale Motion”), and agreeing to certain other relief as to the Trustee.  In support thereof the
parties would say, allege and show unto the Court as follows:
1.
The Debtor filed a voluntary petition for relief under Chapter 11 of the
Bankruptcy Code on September 13, 2019.  By Order entered on July 21, 2020, the proceeding
was converted to one under Chapter 7 of the Bankruptcy Code, and Aaron C. Amore was
appointed the Chapter 7 Trustee.
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2.
WVP is a secured party under a Deed of Trust in the principal amount of
$500,000 dated August 21, 2013 and recorded in the Office of the Clerk of the Hardy County
Commission in Trust Deed Book 277 at page 355 upon the Debtor’s 689.40 acre parcel of real
property.  WVP's lien is subordinate to West Virginia Economic Development Authority's duly
perfected first lien Deed of Trust against the 689.40 acre parcel.  WVP is also the holder of a
Judgment Lien docketed on June 30, 2017, in the amount of $631,647.53 plus costs in the
amount of $278.00, plus interest thereon upon both of the Debtor’s parcels of real property, as
the same are set forth in Judgment Lien Docket 30 at page 143, and as corrected in Judgment
Lien Docket 30 at page 156.  Such Judgment Lien is subordinate in priority to the consensual
liens of the West Virginia Economic Development Authority, its own Deed of Trust, Howard
Shockey & Sons Inc., Virginia Heritage Bank, and a tax lien in favor of the State of West
Virginia State Tax Department.
3.
The Sale Motion of the Trustee seeks an Order of and from this Court allowing
for the sale of the Debtor’s real property free and clear of liens, with such liens attaching to the
proceeds of sale, as set forth is Sections 363(f)(2), (4) & (5) of the Bankruptcy Code.
4.
The undersigned counsel for WVP has been in discussions with the Trustee
regarding the extent of the payments which would flow to WVP as a result of the proposed sale,
and specifically as to the rights of WVP to object to the said sale and to the Trustee’s proposed
distributions to parties which hold junior liens without first satisfying the claims of WVP.
5.
Counsel for WVP and the Trustee have stipulated and agreed that, in lieu of the
filing of an Objection by WVP to the Sale Motion which might impair the Trustee’s ability to
consummate the sale, WVP will consent to the proposed sale upon condition that the amounts
proposed to be distributed to WVP as the same are set forth in paragraph 69 of the Sale Motion,
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and paragraph numbered 4.3(c) of the Asset Purchase Agreement (the “APA”) attached to the
Sale Motion, be modified and amended to provide that WVP shall receive cash at closing in the
amount of Thirty Thousand Dollars ($30,000.00); and an additional Twenty Thousand Dollars
($20,000) from the “Note” referenced in paragraph 73 of the Sale Motion, and paragraph
numbered 4.3(f) of the APA, shall be payable as an administrative expense as the Trustee
receives payments upon the Note, provided, however, that either WVP or the Trustee shall have
the right to seek relief from the Court at any time.  In addition, WVP shall have an unsecured
deficiency claim upon its claim number 8 filed with the Clerk of the Court in the amount of
$625,318.65, to be paid as a general unsecured claim.
6.
The terms of this Stipulation and Agreed Order are conditioned upon entry of the
Sale Order approving the proposed terms of sale except as modified herein.
Accordingly, it is therefore ORDERED and ADJUDGED that the Trustee’s “Motion For
An Order Approving The Sale Of The Debtor’s Real Property And Novating Certain Government
Contracts Free And Clear Of Liens, Claims, Interests, And Encumbrances Pursuant To 11
U.S.C. § 363” is deemed to be modified by this STIPULATION AND AGREED ORDER.

Respectfully submitted,

/s/ Stephen L. Thompson
Stephen L. Thompson, Esq. (WVSB # 3751)
BARTH & THOMPSON
P.O. Box 129
Charleston, West Virginia 25321
Telephone:  (304) 342-7111
Facsimile:  (304) 342-6215
E-mail:  sthompson@barth-thompson.com

Counsel for West Virginia Paving, Inc.

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/s/ Aaron C. Amore
Aaron C. Amore, Esq. (WVSB # 6455)
AMORE LAW, PLLC
206 West Liberty Street
Charles Town, WV   25414
Telephone: (304) 885-4111
Facsimile:  (866) 417-8796
E-mail:  aaron@amorelaw.com

Counsel for Chapter 7 Trustee Aaron C. Amore

No. 2:19-bk-00787    Doc 319    Filed 04/19/21    Entered 04/19/21 14:18:15    Page 4 of 4

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