UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

In re:
PLEASANTS CORP., et al.,1
Reorganized Debtors.

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Chapter 11
Case No. 18-50757;
Cases Jointly Administered under
Case No. 18-50757 (AMK)
Hon. Judge Alan M. Koschik

REORGANIZED DEBTORS’ MOTION TO APPROVE STIPULATION BETWEEN
ENERGY HARBOR LLC AND OHIO VALLEY ELECTRIC CORPORATION
REGARDING CERTAIN ENERGY CONTRACTS AND RELATED CLAIMS
Energy Harbor LLC (“EH”) and its affiliated reorganized debtors in the above-captioned
chapter 11 cases (collectively, the “Reorganized Debtors”), by and through their undersigned
counsel, hereby move for an order approving a proposed stipulation (the “Stipulation”)2 between
EH and Ohio Valley Electric Corporation (“OVEC,” and, together with EH, the “Parties”). The
proposed Stipulation is attached hereto as Exhibit A. In support of the Motion, the Reorganized
Debtors respectfully state as follows:
Preliminary Statement
1.

As the Court is aware, the Reorganized Debtors (or the Debtors, as applicable),

have been engaged in litigation with OVEC for over two years regarding the rejection of the
ICPA (as defined below), the Plan, and the treatment of various claims arising under the ICPA
1

2

The Reorganized Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax
identification number, are: FE Aircraft Leasing Corp. (9245), case no. 18-50759; Energy Harbor Generation,
LLC (0561), case no. 18-50762; Pleasants Corp. (5914), case no. 18-50763; Energy Harbor Nuclear Generation,
LLC (6394), case no. 18-50760; Energy Harbor Nuclear Corp. (1483), case no. 18-50761; Energy Harbor LLC
(0186), case no. 18-50757; and Norton Energy Storage L.L.C. (6928), case no. 18-50764. The Reorganized
Debtors’ address is: 341 White Pond Dr., Akron, OH 44320.
Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Debtors’ Eighth
Amended Joint Plan of Reorganization of FirstEnergy Solutions Corp. and its Debtor Affiliates [Dkt. 3283] (the
“Plan”).

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 that OVEC asserted against Debtor FirstEnergy Solutions Corp. (“FES”). The Parties’ disputes
have involved complicated legal and factual issues, with appeals now having made their way to
the United States Court of Appeals for the Sixth Circuit (the “Sixth Circuit”) multiple times.
There is no doubt that the litigation between FES and OVEC has been hard-fought, complex,
time-consuming, and costly.
2.

The Debtors, in focusing on the interests of their estates and their creditors,

always kept open the possibility of settling their disputes with OVEC. Over the course of the
Debtors’ bankruptcy case, and now following the Effective Date of the Plan, the Parties
continued in dialogue with respect to a consensual resolution of the various issues between them.
Ultimately, this dialogue resulted in a global settlement of the issues between the Reorganized
Debtors and OVEC as set forth in the Stipulation.
3.

The Stipulation provides that EH will assume the ICPA and all of FES’s

obligations thereunder, as of June 1, 2020. EH will also pay to OVEC $32.5 million for any cure
costs associated with such assumption. In consideration of the assumption of the ICPA and the
payment of the Cure Amount (as defined below), OVEC agrees to (a) waive any and all other
claims against the Debtors or Reorganized Debtors in connection with the ICPA arising prior to
June 1, 2020, including, without limitation, any other amounts allegedly owed to cure defaults
under the ICPA, any other administrative expense, or unsecured claims asserted against the
Debtors, (b) withdraw, with prejudice, any pending litigation against the Debtors, including its
prepetition proceeding initiated at FERC (as defined below) and its appeal of the Confirmation
Order, and (c) grant the third-party releases set forth in the Plan.
4.

As a result of the Stipulation, including the waiver of OVEC’s large alleged

rejection damages claims against FES and the release of amounts from the Disputed Claims

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 Reserve, creditors of FES will ultimately obtain improved recoveries as compared to those
estimated in the Disclosure Statement, all else being equal.

Moreover, the settlement of these

disputes will allow the Reorganized Debtors and their management team to focus on the growth
and success of the reorganized business and result in reduced costs associated with litigating with
OVEC for a significantly longer amount of time. The Reorganized Debtors believe that the
terms and conditions of the Stipulation are reasonable and in the best interests of the estates, and
request that the Court enter an order approving the Stipulation.
Jurisdiction and Venue
5.

The United States Bankruptcy Court for the Northern District of Ohio (the

“Court”) has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334. This matter is
a core proceeding within the meaning of 28 U.S.C. § 157(b)(2).
6.

Venue is proper pursuant to 28 U.S.C. §§ 1408 and 1409.

7.

The statutory predicates for the relief requested herein are sections 363 and 365 of

title 11 of the United States Code (the “Bankruptcy Code”) and rule 9019 of the Federal Rules of
Bankruptcy Procedure (the “Bankruptcy Rules”).
Background
8.

On March 31, 2018 (the “Petition Date”), the Debtors filed voluntary petitions

with the Court for relief under chapter 11 of the Bankruptcy Code. The Debtors’ chapter 11
cases (the “Chapter 11 Cases”) are being jointly administered for procedural purposes only.
9.

FES, as predecessor to EH, and OVEC are parties to that certain Amended and

Restated Inter-Company Power Agreement dated as of September 10, 2010, by and among
OVEC, FES, and the other Sponsoring Companies party thereto (as amended or modified from
time to time, the “ICPA”).

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 10.

On March 26, 2018, prior to the Petition Date, OVEC filed a Complaint, Or In

The Alternative, Request for Declaratory Order with the Federal Energy Regulatory Commission
(“FERC”), seeking a finding that allowing FES to use rejection pursuant to Bankruptcy Code
section 365 to eliminate its obligations under the ICPA without first obtaining FERC approval
would violate the Federal Power Act and the ICPA (the “Prepetition FERC Proceeding”).
11.

On April 1, 2018, the Debtors filed the Motion For Entry Of An Order

Authorizing FirstEnergy Solutions Corp. And FirstEnergy Generation, LLC To Reject A Certain
Multi-Party Intercompany Power Purchase Agreement With The Ohio Valley Electric
Corporation As Of The Petition Date [Dkt. 44] (the “Rejection Motion”) seeking to reject the
ICPA with such relief to be effective nunc pro tunc to the Petition Date. The Debtors also
initiated an adversary proceeding against FERC, asking the Bankruptcy Court to enjoin FERC
from taking any action that would interfere with the Debtors’ attempt to reject, among other
contracts, the ICPA. See Complaint For Declaratory Judgment, Preliminary And Permanent
Injunction Against The Federal Energy Regulatory Commission [Adv. Pro. No. 18-05021, Dkt.
1]; Plaintiffs’ Ex Parte Motion For Temporary Restraining Order And Preliminary Injunction
Against Federal Energy Regulatory Commission [Adv. Pro. No. 18-05021, Dkt. 3].
12.

On May 11, 2018, the Bankruptcy Court granted the Debtors’ requested

preliminary injunction with respect to FERC. See Preliminary Injunction Against The Federal
Energy Regulatory Commission [Adv. Pro. No. 18-05021, Dkt. 114] (the “Preliminary Injunction
Order”).
13.

On July 31, 2018, the Court entered an order granting the Rejection Motion. See

Order (I) Authorizing The Debtors To Reject A Certain Multi-Party Intercompany Power

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 Purchase Agreement With The Ohio Valley Electric Corporation And (II) Granting Certain
Related Relief [Dkt. 1118] (the “Rejection Order”).
14.

OVEC, among other parties, appealed the Preliminary Injunction Order and the

Rejection Order directly to the Sixth Circuit, and on December 12, 2019, the Sixth Circuit issued
its decision affirming in part, reversing in part, and remanding the Rejection Order and the
Preliminary Injunction Order (the “Sixth Circuit Decision”).
15.

On October 15, 2018, OVEC filed a proof of claim (Claim No. 1365) (the “OVEC

Proof of Claim”) pursuant to which OVEC asserts against FES: (a) a $1,698,735.00
administrative claim pursuant to Bankruptcy Code section 503(b)(9) and a general unsecured
claim of $934,304.00 for power provided to FES prepetition; (2) a $10,632,337.00 administrative
expense claim on account of the power it provided FES between the Petition Date and July 31,
2018; and (3) a $531,054,122.00 general unsecured claim for rejection damages.
16.

On March 30, 2020, OVEC filed the Supplemental Addendum to Administrative

Expense Component of Proof of Claim of Ohio Valley Electric Corporation [Dkt. 3896] (the
“Administrative Expense Claim Addendum” and, together with the OVEC Proof of Claim, the
“OVEC Filed Claims”), pursuant to which OVEC amended its asserted administrative expense
claim to be $29,272,977.67 on account of the power it made available to FES between the
Petition Date and February 27, 2020, the Effective Date of the Plan.
17.

On October 16, 2019, the Court entered the Confirmation Order, confirming the

Plan, and on February 27, 2020, the Effective Date of the Plan occurred.3

3

While the ongoing litigations regarding the Rejection Order, the Preliminary Injunction Order, and the
Confirmation Order were retained by the Reorganized Debtors, the Plan provides that the Plan Administrator
has the sole right to resolve claims from and after the Effective Date. To the extent the Stipulation involves the
resolution of OVEC’s claims, in accordance with the Plan, the Plan Administrator has been apprised of the
terms of the Stipulation, and the negotiation thereof, and consents to the Stipulation.

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 18.

On October 29, 2019, OVEC, among other parties, appealed the Confirmation

Order, and requested certification of the Confirmation Order for direct appeal to the Sixth
Circuit. This request for direct appeal and the underlying appeals of the Confirmation Order
remain pending.
19.

At various times throughout the Chapter 11 Cases, the Parties engaged in good

faith, arms-length negotiations with respect to the various disputes arising from the Chapter 11
Cases and the Debtors’ proposed rejection of the ICPA. Those negotiations ultimately resulted in
the Stipulation presently before the Court.
Terms of the Stipulation4
20.

4

The material terms of the Stipulation, among other things, provide:
a.

On the Settlement Effective Date (as defined in the Stipulation), EH shall
assume the ICPA pursuant to Bankruptcy Code section 365, including
FES’ 4.85% “Power Participation Ratio” (as defined under the ICPA) and
other obligations of FES thereunder, effective as of June 1, 2020;

b.

From and after June 1, 2020, EH shall continue to perform its obligations
under the ICPA arising on or after June 1, 2020, pursuant to the terms of
the ICPA;

c.

On the Settlement Effective Date, EH shall pay to OVEC $32,500,000.00
(the “Cure Amount”) in cash as full and final settlement of any cure
amounts required to be paid in connection with assumption of the ICPA
under Bankruptcy Code section 365(b), which amount shall include the
amount held in escrow by the Debtors of approximately $10,632,000.00
(“OVEC Escrow Amount”), pursuant to the Order Granting Motion of
Debtors to Approve Settlement Among the Debtors, Non-Debtor Affiliates
and Certain Other Settlement Parties Pursuant to 11 U.S.C. §§ 105, 363,
365 and 502, and Rule 9019 of the Federal Rules of Bankruptcy
Procedure [Dkt. 1465]. At EH’s option, on the Settlement Effective Date,
EH may pay the Cure Amount in full directly to OVEC and, upon such
payment, the OVEC Escrow Amount shall be returned to EH;

This summary of the terms of the Stipulation has been included for the convenience of the parties receiving this
Motion. This summary in no way alters, changes, or amends the actual terms set forth in the Stipulation. In the
event that there are any inconsistencies between this summary and the actual terms of the Stipulation, the
language set forth in the Stipulation controls.

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 d.

The Parties shall cooperate and take commercially reasonable efforts to
effectuate assumption of the ICPA, including, without limitation, taking
commercially reasonable steps as necessary to reallocate to EH the right to
offer its “Power Participation Ratio” share of OVEC’s “Available Energy”
(as such terms are defined in the ICPA) through the offering of energy and
capacity in markets administered by PJM Interconnection, L.L.C.
(“PJM”), including taking commercially reasonable efforts to transfer back
to EH any rights to such capacity for periods from and after June 1, 2020
previously transferred by FES to other Sponsoring Companies that
participate in such PJM markets shortly after the Rejection Order;

e.

Upon the occurrence of the Settlement Effective Date, the OVEC Filed
Claims shall be deemed withdrawn with prejudice and expunged, and the
Claims and Noticing Agent shall be directed to expunge such claims from
the claims register;

f.

No later than two (2) business days after the Settlement Effective Date,
(i) OVEC shall withdraw and dismiss, with prejudice, its appeal of the
Confirmation Order and shall not seek further review of the Sixth Circuit
Decision; (ii) the Debtors shall withdraw, with prejudice, the Rejection
Motion pending currently before the Bankruptcy Court to reject the ICPA;
(iii) OVEC shall withdraw any of its actions, pleadings, or positions taken
before FERC with respect to FERC’s proceedings arising from the Sixth
Circuit Decision in connection with the Rejection Motion (or in
connection with any other motion of the Debtors or Reorganized Debtors
to reject any executory contract); and (iv) OVEC shall withdraw and
dismiss, with prejudice, any of its motions, actions, or pleadings with
respect to the Prepetition FERC Proceeding;

g.

Upon the mutual execution and delivery by the Parties of the Stipulation,
the Parties shall take all commercially reasonable actions to stay any
pending litigation between such Parties, including matters set forth in
paragraph 6 of the Stipulation, and to adjourn all pending deadlines
applicable to the Parties pending the occurrence of the Settlement
Effective Date; provided that, to the extent that, despite the Parties’ mutual
requests to adjourn all pending deadlines pending the occurrence of the
Settlement Effective Date, such proceedings or deadlines are not so
adjourned and prior to the Settlement Effective Date a response or filing is
due from any of the Parties, then such Parties shall be permitted to make
such filing without prejudice to their obligations under paragraph 6 of the
Stipulation;

h.

Upon the occurrence of the Settlement Effective Date: (a) OVEC shall be
deemed to have granted the Consensual Third Party Releases set forth in
Article VIII.E of the Plan, which, for the avoidance of doubt, shall include
a release of OVEC’s alleged claims against any FE Non-Debtor Party
related to that certain Guaranty by FE Corp. for the benefit of OVEC,
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 dated July 28, 2005 (the “FE Guaranty”); and (b) OVEC agrees that the
FE Guaranty was validly terminated in February 2014 and is of no force
and effect; provided, however, that for the avoidance of doubt, the
Consensual Third Party Releases set forth in Article VIII.E. of the Plan do
not release Allegheny Energy Supply Company, LLC and Monongahela
Power Company from their independent obligations as parties to the
ICPA; and
i.

Subject to ongoing commercial relationships between OVEC and EH,
including arising under the ICPA following assumption thereof, OVEC
reaffirms its release of any Claims against the Debtors and the Debtor
Released Parties arising on or prior to the Effective Date of the Plan.
Relief Requested

21.

By this Motion, the Debtors seek entry of an order (i) approving the Stipulation

and authorizing the Parties to take any and all actions necessary to effectuate the Stipulation
without the need of further order by this Court; (ii) authorizing EH to assume the ICPA pursuant
to Bankruptcy Code section 365 as of June 1, 2020; and (iii) granting such other relief that the
Court deems proper.
Basis for Relief
Overview of the Rule 9019 Standard
22.

Approval of the Stipulation is governed by Rule 9019(a) of the Bankruptcy Rules,

which provides that “[o]n motion by the trustee and after notice and a hearing, the court may
approve a compromise or settlement.”

Fed. R. Bank. P. 9019(a).

In order to approve a

settlement, a court must find that the settlement is fair and equitable and in the best interests of
the debtors’ estates. Protective Comm. for Indep. Stockholders of TMT Trailer Ferry, Inc. v.
Anderson, 390 U.S. 414, 424–25 (1968); see also Treinish v. Topco Assocs., Inc. (In re AWF
Liquidation Corp.), 208 B.R. 399, 400 (Bankr. N.D. Ohio 1997); McGraw v. Yelverton (In re Bell
& Beckwith), 87 B.R. 476, 478 (N.D. Ohio 1988); In re Mobile Air Drilling Co., 53 B.R. 605,
607 (Bankr. N.D. Ohio 1985). In doing so, the Court need not decide the numerous issues of law
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 and fact raised in the underlying dispute but must only “canvass the issues in order to determine
whether the settlement falls below the lowest point in the range of reasonableness, and if the
settlement falls within a range of reasonable compromises, it may be approved.” In re Junk, 566
B.R. 897, 912 (Bankr. S.D. Ohio 2017) (citing In re Nicole Gas Prod., 518 B.R. 429, 441 (Bankr.
S.D. Ohio 2014)); see also Bell & Beckwith, 87 B.R. at 479; Cosoff v. Rodman (In re W.T. Grant
Co.), 699 F.2d 599, 608 (2d Cir. 1983); In re Purofied Down Prods. Corp., 150 B.R. 519, 522
(Bankr. S.D.N.Y. 1993).
23.

The court need not “conduct a ‘mini-trial’” but rather only need be apprised of

those facts that are necessary to enable it to evaluate the settlement and to make a considered and
independent judgment about the settlement. Fishell v. Soltow (In re Fishell), No. 94-1109, 1995
WL 66622, at *3 (6th Cir. Feb. 16, 1995); see also In re Pugsley, 569 B.R. 704, 707–08 (Bankr.
N.D. Ohio 2017) (citation omitted); In re Adelphia Commc’n Corp., 327 B.R. 143, 159 (Bankr.
S.D.N.Y. 2005) (citation omitted).
24.

In addition, the bankruptcy court’s review of a settlement should be viewed “in

light of the general public policy favoring settlements.” In re Hibbard Brown & Co., Inc., 217
B.R. 41, 46 (Bankr. S.D.N.Y. 1998) (citation omitted); see also Myers v. Martin (In re Martin),
91 F. 3d 389, 393 (3d Cir. 1996) (“compromises are favored in bankruptcy”) (citation omitted);
Nellis v. Shugrue, 165 B.R. 115, 123 (S.D.N.Y. 1994) (“the general rule [is] that settlements are
favored, and in fact, encouraged by the approval process outlined above”) (citation omitted).
25.

As noted above, in order to approve a settlement, a court must find that the

settlement is fair and equitable and in the best interests of the debtors’ estates. TMT Trailer, 390
U.S. at 424–25.

The Sixth Circuit has set forth four factors to consider in making this

determination: (i) the probability of success in litigation; (ii) the difficulties, if any, to be

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 encountered in the matter of collection;5 (iii) the complexity of the litigation involved and the
expense, inconvenience and delay necessarily attending it; and (iv) the paramount interest of the
creditors and a proper deference to their reasonable views. Bard v. Sicherman (In re Bard), 49 F.
App’x 528, 530 (6th Cir. 2002) (citation omitted); see also In re MQVP, Inc., 477 F. App’x at
313; In re Victoria Alloys, Inc., 261 B.R. 918, 920 (Bankr. N.D. Ohio 2001); In re Dow Corning
Corp., 192 B.R. 415, 421–22 (Bankr. E.D. Mich. 1996); In re Bell & Beckwith, 87 B.R. at 478.
The Settlement Agreement Should Be Approved
The Balance Between the Litigation’s Possibility of Success and the Settlement’s
Benefits Weighs in Favor of Approval of the Settlement Agreement
26.

Considering the balance between the litigation’s possibility of success and the

settlement’s benefits reflects the Supreme Court’s view that a court should form an “intelligent
and objective opinion” of the probability of success in the underlying litigation and inherent
costs of such litigation. TMT Trailer, 290 U.S. at 424. Courts have found the uncertainty of
recovery in litigation to be a compelling factor favoring approval of a settlement. As the court
stated in Adelphia, “there is a range of reasonableness with respect to a settlement—a range
which recognizes the uncertainties of law and fact in any particular case and the concomitant
risks and costs necessarily inherent in taking any litigation to completion.” 327 B.R. at 159
(quoting Newman v. Stein, 464 F.2d 689, 693 (2d Cir. 1972)); see also O’Connell v. Packles (In
re Hilsen), 404 B.R. 58, 71 (Bankr. E.D.N.Y. 2009) (“The outcome of litigation is nearly always
uncertain and may be distant. It is also costly. And the enforcement of any resulting judgment
may be far from sure. A settlement, by contrast, eliminates uncertainty and delay, reduces costs,
and brings finality to the parties’ dispute.”).

5

“The first two Bard factors—the probability of success in the litigation and the difficulties in the manner of
collection—are related and can be analyzed together.” Hindelang v. Mid-State Aftermarket Body Parts, Inc. (In
re MQVP, Inc.), 477 F. App’x 310, 313 (6th Cir. 2012).

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 27.

The benefits of the stipulation with OVEC are clear and indisputable. As this

Court has witnessed, the Parties have been at loggerheads since the first day of the Chapter 11
Cases. At nearly every material turn of these cases, the Debtors and OVEC have been at odds.
The disputes between the Parties have not been minor. Indeed, the Debtors’ rejection of the
ICPA, as reflected in the Rejection Order, was ultimately remanded back to this Court in
accordance with the Sixth Circuit Decision, and, absent approval of this Stipulation, would be
the subject of an additional series of litigations over not just the rejection of the ICPA but the
quantum and priority of the resultant claims against the FES estate. While the Reorganized
Debtors believe they would prevail in meeting the Sixth Circuit’s standard to reject the ICPA,
such a litigation would be a lengthy, costly process, and the Reorganized Debtors would have no
guarantee of success in rejecting the ICPA or in objecting to OVEC’s asserted rejection damages
claim and administrative expense claim amounts. Without the Stipulation, the Reorganized
Debtors would also be forced to litigate the appeal of the Confirmation Order. The Stipulation
resolves all of these complex matters.
28.

In turn, under the Stipulation, in connection with the assumption of the ICPA and

the payment of the Cure Amount, OVEC will waive its claims against FES, including its asserted
rejection damages claim of approximately $531 million. Creditors of FES will no longer be
diluted by OVEC’s asserted claim, which, assuming the estimated recoveries in the Disclosure
Statement, would have been entitled to receive cash distributions of over $160 million if allowed
in full.
29.

The assumption of the ICPA also provides additional certainty to the Reorganized

Debtors and their ongoing business. While the Reorganized Debtors continue to believe that the
costs associated with the ICPA are burdensome to their retail business, the Reorganized Debtors

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 understand that OVEC is focused on improving its operational cost structure and that recent Ohio
state legislation will assist OVEC in maintaining financial stability while doing so. Accordingly,
the Reorganized Debtors believe that operational improvements and cost savings can be achieved
through their ongoing participation in OVEC pursuant to the ICPA, and they are ready, willing,
and able to assist in those efforts.
The Length and Cost of Litigation Would Be Substantial
30.

In evaluating the reasonableness of a settlement, a court should also “form an

educated estimate of the complexity, expense, and likely duration of such litigation.” TMT
Trailer, 390 U.S. at 424; see also In re Bard, 49 F. App’x at 530. Absent approval of the
Stipulation, it is likely that OVEC and EH would continue their ongoing litigation for years to
come. As the Court is aware, there are different views as between the Reorganized Debtors and
other parties regarding how to proceed on the remanded rejection proceedings, with some parties
advocating that this Court not commence its rejection proceedings until FERC has completed its
evaluation of these issues in accordance with the Sixth Circuit’s decision. If that is the case, that
process alone could take several months before the Parties even appear before the Court to
litigate the rejection of the ICPA and other contracts in accordance with the standard set by the
Sixth Circuit. Separately, OVEC is presently appealing the Confirmation Order on direct appeal
to the Sixth Circuit. If unsettled, these litigations could take years to conclude and cost the
parties millions of dollars in expenses. The Stipulation resolves these issues as between EH and
OVEC, and will diminish the costs associated with the ongoing litigation of the issues resolved
therein.

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 The Interests of the Creditors
31.

A court should also look to the “paramount interests of the creditors and a proper

deference to their reasonable views” when deciding whether to approve a settlement. In re Bard,
49 F. App’x at 530. Here, the Settlement Agreement is clearly in the best interests of the
creditors of the FES estate. Entering into the Stipulation resolves the disputes between OVEC
and EH, results in the waiver of substantial claims against FES, permits the Reorganized Debtors
and the Plan Administrator to release substantial sums of cash from the Disputed Claims
Reserve, and ultimately enhances expected recoveries to FES creditors in an expeditious manner.
Notice
32.

Notice of this Motion has been served on the following parties and/or their

counsel, if known, via facsimile, overnight delivery, e-mail, and/or hand delivery: (i) those
parties listed on the General Service List (as defined in the Amended Order Pursuant to Sections
102 and 105(a) of the Bankruptcy Code and Bankruptcy Rules 2002, 4001, 6007, 7016, 9013 and
9014 and Local Bankruptcy Rules Establishing: (I) Omnibus Hearing dates; and (II) Certain
Case Management Procedures [Dkt. 280]), (ii) OVEC, and (iii) FERC.

The Reorganized

Debtors submit that, in light of the nature of the relief requested, no other or further notice need
be given.
No Prior Request
33.

No prior request for the relief sought in this Motion has been made to this or any

other court.

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 WHEREFORE, the Reorganized Debtors respectfully request that the Court (i) enter an
order substantially in the form attached hereto as Exhibit B, and (ii) grant such other and further
relief as the Court may deem proper.
Dated:

May 18, 2020

Respectfully submitted,
/s/ Bridget A. Franklin
BROUSE MCDOWELL LPA
Marc B. Merklin (0018195)
Bridget A. Franklin (0083987)
388 South Main Street, Suite 500
Akron, OH 44311-4407
Telephone: (330) 535-5711
Facsimile: (330) 253-8601
mmerklin@brouse.com
bfranklin@brouse.com
- and AKIN GUMP STRAUSS HAUER & FELD LLP
Ira Dizengoff (admitted pro hac vice)
Lisa Beckerman (admitted pro hac vice)
Brad Kahn (admitted pro hac vice)
One Bryant Park
New York, New York 10036
Telephone: (212) 872-1000
Facsimile: (212) 872-1002
idizengoff@akingump.com
lbeckerman@akingump.com
bkahn@akingump.com
- and Scott Alberino (admitted pro hac vice)
Kate Doorley (admitted pro hac vice)
2001 K Street, N.W.
Washington, D.C. 20006
Telephone: (202) 887-4000
Facsimile: (202) 887-4288
salberino@akingump.com
kdoorley@akingump.com
Counsel for Reorganized Debtors

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 Exhibit A
Stipulation

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 Execution Version
UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

In re:
PLEASANTS CORP., et al.,

1

Reorganized Debtors.

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Chapter 11
Case No. 18-50757;
Cases Jointly Administered under
Case No. 18-50757 (AMK)
Hon. Judge Alan M. Koschik

STIPULATION AND AGREED ORDER BY AND AMONG ENERGY HARBOR LLC
AND OHIO VALLEY ELECTRIC CORPORATION REGARDING
CERTAIN ENERGY CONTRACTS AND RELATED CLAIMS
This stipulation and agreed order (together, the “Stipulation”) 2 under Bankruptcy Code
sections 363 and 365 of title 11 of the United States Code (the “Bankruptcy Code”) is made and
entered into by and among Energy Harbor LLC (“EH”) and Ohio Valley Electric Corporation
(“OVEC” and, together with EH, the “Parties”). The Parties hereby stipulate as follows:
WHEREAS, on March 31, 2018 (the “Petition Date”), FirstEnergy Solutions Corp.
(“FES”) and its affiliated debtors and debtors in possession in the above-captioned cases
(collectively, the “Debtors”) commenced voluntary cases under chapter 11 of the Bankruptcy Code
in the United States Bankruptcy Court for the Northern District of Ohio (the “Bankruptcy Court”);
and

1

The Reorganized Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax
identification number, are: FE Aircraft Leasing Corp. (9245), case no. 18-50759; Energy Harbor Generation, LLC
(0561), case no. 18-50762; Pleasants Corp. (5914), case no. 18-50763; Energy Harbor Nuclear Generation, LLC
(6394), case no. 18-50760; Energy Harbor Nuclear Corp. (1483), case no. 18-50761; Energy Harbor LLC (0186),
case no. 18-50757; and Norton Energy Storage L.L.C. (6928), case no. 18-50764. The Debtors’ address is: 341
White Pond Dr., Akron, OH 44320.

2

Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Debtors’ Eighth
Amended Joint Plan of Reorganization of FirstEnergy Solutions Corp. and its Debtor Affiliates [Docket No.
3283] (the “Plan”).

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 WHEREAS, FES and OVEC are parties to that certain Amended and Restated InterCompany Power Agreement dated as of September 10, 2010 by and among OVEC, FES, and the
other Sponsoring Companies party thereto (as amended or modified from time to time, the
“ICPA”); and
WHEREAS, on March 26, 2018, prior to the Petition Date, OVEC filed a Complaint, Or
In The Alternative, Request For Declaratory Order with the Federal Energy Regulatory
Commission (“FERC”), seeking a finding that allowing FES to use rejection to eliminate its
obligations under the ICPA without first obtaining FERC approval would violate the Federal
Power Act and the ICPA (the “Prepetition FERC Proceeding”); and
WHEREAS, on April 1, 2018, the Debtors filed the Motion For Entry Of An Order
Authorizing FirstEnergy Solutions Corp. And FirstEnergy Generation, LLC To Reject A Certain
Multi-Party Intercompany Power Purchase Agreement With The Ohio Valley Electric Corporation
As Of The Petition Date [Docket No. 44] (the “Rejection Motion”) seeking to reject the ICPA with
such relief to be effective nunc pro tunc to the Petition Date; and
WHEREAS, simultaneously, the Debtors initiated an adversary proceeding against FERC,
asking the Bankruptcy Court to enjoin FERC from taking any action that would interfere with the
Debtors’ attempt to reject, among other contracts, the ICPA. See Complaint For Declaratory
Judgment, Preliminary And Permanent Injunction Against The Federal Energy Regulatory
Commission [Adv. Pro. No. 18-05021, Dkt. 1]; Plaintiffs’ Ex Parte Motion For Temporary
Restraining Order And Preliminary Injunction Against Federal Energy Regulatory Commission
[Adv. Pro. No. 18-05021, Dkt. 3]; and

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 WHEREAS, on May 11, 2018, the Bankruptcy Court granted the Debtors’ requested
preliminary injunction. See Preliminary Injunction Against The Federal Energy Regulatory
Commission [Adv. Pro. No. 18-05021, Dkt. 114] (the “Preliminary Injunction Order”); and
WHEREAS, on July 31, 2018, the Bankruptcy Court entered an order granting the
Rejection Motion. See Order (I) Authorizing The Debtors To Reject A Certain Multi-Party
Intercompany Power Purchase Agreement With The Ohio Valley Electric Corporation And (II)
Granting Certain Related Relief [Dkt. 1118] (the “Rejection Order”); and
WHEREAS, OVEC, among other parties, appealed the Preliminary Injunction Order and
the Rejection Order directly to the United States Court of Appeals for the Sixth Circuit (the “Sixth
Circuit”), and on December 12, 2019, the Sixth Circuit issued its decision affirming in part,
reversing in part, and remanding the Rejection Order and the Preliminary Injunction Order (the
“Sixth Circuit Decision”); and
WHEREAS on October 15, 2018, OVEC filed a proof of claim (Claim No. 1365) (the
“OVEC Proof of Claim”), pursuant to which OVEC asserts against FES: (1) a $1,698,735.00
administrative claim pursuant to Bankruptcy Code section 503(b)(9) and a general unsecured claim
of $934,304.00 for power provided prepetition; (2) a $10,632,337.00 administrative expense claim
on account of the power it provided FES between the Petition Date and July 31, 2018; and (3) a
$531,054,122.00 general unsecured claim for rejection damages; and
WHEREAS, on March 30, 2020, OVEC filed the Supplemental Addendum to
Administrative Expense Component of Proof of Claim of Ohio Valley Electric Corporation [Dkt.
No. 3896] (the “Administrative Expense Claim Addendum” and, together with the OVEC Proof
of Claim, the “OVEC Filed Claims”), pursuant to which OVEC amended its asserted

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 administrative expense claim to be $29,272,977.67 on account of the power it made available to
FES between the Petition Date and February 27, 2020, the Effective Date of the Plan; and
WHEREAS, on October 16, 2019, the Bankruptcy Court entered an order confirming the
Plan (the “Confirmation Order”), and on February 27, 2020, the Effective Date of the Plan
occurred; and
WHEREAS, on October 29, 2019, OVEC, among other parties, appealed the Confirmation
Order, and a request for certification of the Confirmation Order for direct appeal to the Sixth
Circuit remains pending; and
WHEREAS, the Parties have engaged in good faith and arms’ length settlement discussions
to resolve the various disputes raised by, among other things: the Debtors’ proposed rejection of
the ICPA; the Prepetition FERC Proceeding; the appeals of the Preliminary Injunction Order, the
Rejection Order, and the Confirmation Order; and the OVEC Filed Claims, and have reached a
settlement and compromise on the terms and conditions set forth in this Stipulation.
NOW, THEREFORE, the Parties hereto, by and through their respective counsel, hereby
agree, for good and valuable consideration, as follows:
1.

On the Settlement Effective Date (as defined herein), EH shall assume the ICPA

pursuant to Bankruptcy Code section 365, including FES’s 4.85% “Power Participation Ratio” (as
defined under the ICPA) and other obligations of FES thereunder, effective as of June 1, 2020.
2.

From and after June 1, 2020, EH shall continue to perform its obligations under the

ICPA arising on or after June 1, 2020, pursuant to the terms of the ICPA.
3.

On the Settlement Effective Date, EH shall pay to OVEC $32,500,000.00 (the

“Cure Amount”) in cash as full and final settlement of any cure amounts required to be paid in
connection with assumption of the ICPA under Bankruptcy Code section 365(b), which amount

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 shall include the amount held in escrow by the Reorganized Debtors of approximately
$10,632,000.00 (“OVEC Escrow Amount”) pursuant to the Order Granting Motion of Debtors to
Approve Settlement Among the Debtors, Non-Debtor Affiliates and Certain Other Settlement
Parties Pursuant to 11 U.S.C. §§ 105, 363, 365 and 502, and Rule 9019 of the Federal Rules of
Bankruptcy Procedure [Dkt. 1465]. At EH’s option, on the Settlement Effective Date, EH may
pay the Cure Amount in full directly to OVEC and, upon such payment, the OVEC Escrow
Amount shall be returned to EH.
4.

The Parties shall cooperate and take commercially reasonable efforts to effectuate

assumption of the ICPA, including, without limitation, taking commercially reasonable steps as
necessary to reallocate to EH the right to offer its “Power Participation Ratio” share of OVEC’s
“Available Energy” (as such terms are defined in the ICPA) through the offering of energy and
capacity in markets administered by PJM Interconnection, L.L.C. (“PJM”), including taking
commercially reasonable efforts to transfer back to EH any rights to such capacity for periods from
and after June 1, 2020 previously transferred by FES to other Sponsoring Companies that
participate in such PJM markets shortly after the Rejection Order.
5.

Upon the occurrence of the Settlement Effective Date, the OVEC Filed Claims shall

be deemed withdrawn with prejudice and expunged, and the Claims and Noticing Agent shall be
directed to expunge such claims from the claims register.
6.

No later than two (2) business days after the Settlement Effective Date:
(a)

OVEC shall withdraw and dismiss, with prejudice, its appeal of the
Confirmation Order and shall not seek further review of the Sixth Circuit
Decision;

(b)

the Reorganized Debtors shall withdraw, with prejudice, the Rejection
Motion pending currently before the Bankruptcy Court;

(c)

OVEC shall withdraw any of its actions, pleadings, or positions taken
before the FERC with respect to FERC’s proceedings arising from the Sixth
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 Circuit Decision in connection with the Rejection Motion (or in connection
with any other motion of the Debtors or Reorganized Debtors to reject any
executory contract); and
(d)
7.

OVEC shall withdraw and dismiss, with prejudice, any of its motions,
actions, or pleadings with respect to the Prepetition FERC Proceeding.

Upon mutual execution and delivery by the Parties of this Stipulation, the Parties

shall take all commercially reasonable actions to stay any pending litigation between such Parties,
including the matters set forth in paragraph 6 of this Stipulation, and to adjourn all pending
deadlines applicable to the Parties pending the occurrence of the Settlement Effective Date;
provided that, to the extent that, despite the Parties’ mutual requests to adjourn all pending
deadlines pending the occurrence of the Settlement Effective Date, such proceedings or deadlines
are not so adjourned and prior to the Settlement Effective Date a response or filing is due from any
of the Parties, then such Parties shall be permitted to make such filing without prejudice to their
obligations under paragraph 6 of this Stipulation in accordance therewith. Upon mutual execution
and delivery by the Parties of this Stipulation, OVEC shall not, directly or indirectly, support,
assist, aid, or advise any other party in opposing the Debtors or Reorganized Debtors in connection
with any matter relating to or arising from the Chapter 11 Cases, including without limitation, the
pending motion to reject certain executory power contracts, pending proceedings before FERC
with respect to the rejection of certain executory power contracts, pending appeals of the
Confirmation Order, and the Sixth Circuit Decision.
8.

Upon the occurrence of the Settlement Effective Date: (a) OVEC shall be deemed

to have granted the Consensual Third Party Releases set forth in Article VIII.E of the Plan, which,
for the avoidance of doubt, shall include a release of OVEC’s alleged claims against any FE NonDebtor Party related to that certain Guaranty executed by FE Corp. for the benefit of OVEC, dated
July 28, 2005 (the “FE Guaranty”); and (b) OVEC agrees that the FE Guaranty was validly

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 terminated in February of 2014 and is of no force and effect; provided, however, that, for the
avoidance of doubt, the Consensual Third Party Releases set forth in Article VIII.E of the Plan do
not release Allegheny Energy Supply Company, LLC and Monongahela Power Company (from
their independent obligations as parties to the ICPA.
9.

Subject to ongoing commercial relationships between OVEC and EH, including

arising under the ICPA following assumption thereof, OVEC reaffirms its release of any Claims
against the Debtors and the Debtor Released Parties arising on or prior to the Effective Date of the
Plan.
10.

Except as otherwise set forth in this Stipulation, upon the occurrence of the

Settlement Effective Date, each Party does hereby waive, release, cancel, and forego any and all
claims or causes of action, of any kind and nature whatsoever, including without limitation any
claims under chapter 5 of the Bankruptcy Code, and of any priority, including without limitation
any administrative expense or priority claims, it may have against the other Parties in connection
with the ICPA arising prior to June 1, 2020, except with respect to the enforcement of rights under
this Stipulation.
11.

Each of the Parties shall pay their own costs and expenses, including professional

fees and expenses, incurred in connection with the proposed rejection of the ICPA, the Chapter 11
Cases, the proceedings set forth in paragraph 6 of this Stipulation, and the negotiation and
implementation of this Stipulation.
12.

The effectiveness of this Stipulation shall be subject to the satisfaction of each of

the following conditions unless waived by each of the Parties in writing (the date all of such
conditions have been satisfied or so waived, the “Settlement Effective Date”):
(a)

each of the Parties shall have executed and delivered this Stipulation;

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 13.

(b)

the Bankruptcy Court shall have entered a final, non-appealable order
approving the Stipulation, which order shall be in form and substance
reasonably acceptable to the Parties; and

(c)

all actions required to be taken by the Parties by or on the Settlement
Effective Date shall have occurred.

The FE Non-Debtor Released Parties are expressly intended to be third-party

beneficiaries of paragraph 8 of this Stipulation. EH and OVEC agree that they will not oppose, or
directly or indirectly aid any party in opposing, any FE Non-Debtor Released Party seeking to
enforce paragraph 8 of this Stipulation.
14.

This Stipulation constitutes the entire agreement and supersedes all prior

agreements and understandings, both written and oral, between the Parties with respect to the
subject matter hereof and, except as otherwise expressly provided herein, is not intended to confer
upon any other person any rights or remedies hereunder.
15.

The undersigned persons represent and warrant that they have full authority to

execute this Stipulation and that the respective Parties have full knowledge of and have agreed to
the terms of this Stipulation.
16.

This Stipulation may be executed in counterparts, any of which may be transmitted

by facsimile or electronic mail (including electronic counterpart), and each of which shall be
deemed an original and all of which together shall constitute one and the same instrument.
17.

This Stipulation shall be governed by and construed in accordance with the laws of

the state of Ohio, without regard to principles of conflicts of laws.
18.

This Stipulation may not be amended without the express written consent of all

Parties hereto.
19.

This Stipulation shall be binding upon the Parties hereto and upon all of their

affiliates, assigns, and successors.

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 20.

It is acknowledged that each Party has participated in and jointly drafted this

Stipulation and that any claimed ambiguity should not be construed for or against either Party on
account of such drafting.
21.

The Bankruptcy Court shall retain jurisdiction, to the extent provided for by 28

U.S.C. § 1334, over any and all disputes or other matters arising under or otherwise relating to
this Stipulation.
Dated: May 18, 2020
AKIN GUMP STRAUSS HAUER & FELD,
LLP

KIRKLAND & ELLIS LLP

By: /s/ Brad M. Kahn______
Ira S. Dizengoff
Brad M. Kahn
One Bryant Park
New York, New York 10036
Tel: (212) 872-1000
Fax: (212) 872-1002

By: /s/ David R. Seligman______________
David R. Seligman
300 North LaSalle
Chicago, Illinois 60654
Tel: (312) 862-2463
Fax: (312) 862-2200

Counsel to the Reorganized Debtors

Counsel to Ohio Valley Electric Corporation

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 Exhibit B
Proposed Order

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 UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

In re:
PLEASANTS CORP., et al.,1
Debtors.

)
)
)
)
)
)
)
)

Chapter 11
Case No. 18-50757;
Cases Jointly Administered under
Case No. 18-50757 (AMK)
Hon. Judge Alan M. Koschik

ORDER GRANTING REORGANIZED DEBTORS’ MOTION TO
APPROVE STIPULATION BETWEEN ENERGY HARBOR LLC AND
OHIO VALLEY ELECTRIC CORPORATION REGARDING CERTAIN
ENERGY CONTRACTS AND RELATED CLAIMS
Upon consideration of the Reorganized Debtor’s Motion to Approve Stipulation Between
Energy Harbor LLC and Ohio Valley Electric Corporation Regarding Certain Energy Contracts
and Related Claims (the “Motion”)2 approving the stipulation (the “Stipulation”) attached to the
Motion as Exhibit A, all as more fully set forth in the Motion; and the Court having found that it
has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334; and the Court having
found that this is a core proceeding pursuant to 28 U.S.C. § 157(b)(2); and the Court having
found that venue of the cases and the Motion in this district is proper pursuant to 28 U.S.C. §§
1408 and 1409; and the Court having found that the Debtors provided appropriate notice of the
Motion and the opportunity for hearing on the Motion under the circumstances; and the Court
having determined that the legal and factual bases set forth in the Motion establish just cause for
1

2

The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification
number, are: FE Aircraft Leasing Corp. (9245), case no. 18-50759; Energy Harbor Generation, LLC (0561),
case no. 18-50762; Pleasants Corp. (5914), case no. 18-50763; Energy Harbor Nuclear Generation, LLC (6394),
case no. 18-50760; Energy Harbor Nuclear Corp. (1483), case no. 18-50761; Energy Harbor LLC (0186), case
no. 18-50757; and Norton Energy Storage L.L.C. (6928), case no. 18-50764. The Debtors’ address is: 341
White Pond Dr., Akron, OH 44320.
Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Debtors’ Eighth
Amended Joint Plan of Reorganization of FirstEnergy Solutions Corp. and its Debtor Affiliates [Dkt. 3283] (the
“Plan”) or the Stipulation, as applicable.

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 the relief granted herein; and upon all of the proceedings had before this Court; and after due
deliberation and sufficient cause appearing therefor, it is HEREBY ORDERED THAT:
1.

The Motion is granted as set forth herein.

2.

The Stipulation attached as Exhibit A to the Motion is hereby approved.

3.

Upon the occurrence of the Settlement Effective Date, the OVEC Filed Claims

shall be deemed withdrawn with prejudice, in accordance with the terms of the Stipulation. The
Claims and Noticing Agent is hereby authorized to update the official claims register consistent
with the terms of the Stipulation. Upon the occurrence of the Settlement Effective Date, the Plan
Administrator is authorized to release from the Disputed Claims Reserve any amounts held in
such reserve on account of the OVEC Filed Claims in accordance with the Plan as if the OVEC
Filed Claims were disallowed.
4.

The 14-day stay of an order authorizing the use, sale, or lease of property of the

estate under Bankruptcy Rule 6004(h) is hereby waived and the terms and conditions of this
Order are immediately effective and enforceable upon entry by the Court.
5.

The Parties are authorized to take all actions necessary to comply with the terms

of the Stipulation without the need for further orders from this Court.
6.

This Court shall retain jurisdiction, to the extent provided for by 28 U.S.C.

§ 1334, with respect to all matters arising from or related to the implementation of this Order.
###

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 SUBMITTED BY:
/s/
BROUSE MCDOWELL LPA
Marc B. Merklin (0018195)
Bridget A. Franklin (0083987)
388 South Main Street, Suite 500
Akron, OH 44311-4407
Telephone: (330) 535-5711
Facsimile: (330) 253-8601
mmerklin@brouse.com
bfranklin@brouse.com
- and AKIN GUMP STRAUSS HAUER & FELD LLP
Ira Dizengoff (admitted pro hac vice)
Lisa Beckerman (admitted pro hac vice)
Brad Kahn (admitted pro hac vice)
One Bryant Park
New York, New York 10036
Telephone: (212) 872-1000
Facsimile: (212) 872-1002
idizengoff@akingump.com
lbeckerman@akingump.com
bkahn@akingump.com
- and Scott Alberino (admitted pro hac vice)
Kate Doorley (admitted pro hac vice)
2001 K Street, N.W.
Washington, D.C. 20006
Telephone: (202) 887-4000
Facsimile: (202) 887-4288
salberino@akingump.com
kdoorley@akingump.com
Counsel for Reorganized Debtors

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