Case No. 02-43582-H4-11 JOINTLY ADMINISTEREDUnited States Bankruptcy Court, S.D. Texas, Houston Division.
May 21, 2003
R Edward Massey, III, Esq., Clay, Massey Associates, P.C., Mobile, Alabama, Attorney for Belinda Brian Brown
Alfredo R. Pérez, Lydia T. Protopapas and Shayne H. Newell, Houston, Texas, Attorneys for Debtors and Debtors In Possession
STIPULATION AND ORDER
WILLIAM R. GREENDYKE, United States Bankruptcy Judge
Encompass Services Corporation and certain of its direct and indirect subsidiaries., as debtors and debtors-in-possession (collectively, “Encompass”), and Belinda and Brian Brown (the “Browns”) respectfully submit this Stipulation and Order (“Stipulation”);
RECITALS
WHEREAS, on or about November 20, 2000, the Browns filed the action styled Belinda Brown et al. v. United Service Solutions, Inc., Civil Action Number CV-00-3708 in the Circuit Court of Mobile County, Alabama (“Alabama Action”) against the debtor, United Service Solutions, Inc. n/k/a Building One Service Solutions, Inc. (“Building One”)
WHEREAS, on November 19, 2002 (“Petition Date”), Encompass Services Corporation and substantially all of its domestic direct and indirect subsidiaries (collectively, the “Debtors”), including Building One, filed voluntary petitions for relief under chapter 11 title 11 of the United States Code (“Bankruptcy Code”). The Debtors continue to operate their businesses and manage their properties as debtors-in-possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code;
WHEREAS, Building One has asserted in the Alabama Action that it has no liability to the Browns;
WHEREAS, Building One filed a Notice of Bankruptcy in the Alabama Action stating that such action was stayed pursuant to section 362 of the Bankruptcy Code;
WHEREAS, on April 28, 2003, the Browns moved the Bankruptcy Court to modify the automatic stay to proceed with their claims against Building One (“Brown Motion”)
WHEREAS, Building One has available coverage under one or more policies of insurance for the benefit of claims asserted against Building One, such as those asserted in the Alabama Action;
WHEREAS, Building One and the Browns wish to resolve the issues raised by the Brown Motion without the cost and expense of further litigation;
WHEREAS, Building One and the Browns have negotiated this Stipulation in good faith and at arms’ length and, therefore, desire that it shall be binding upon each of them, their successors, heirs, and assigns; and
WHEREAS, Building One and the Browns believe that this Stipulation is in their respective best interests.
In consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto stipulate and agree as follows:
STIPULATION
1. Subject to the provisions herein, the automatic stay should be lifted solely to the extent necessary to permit the Browns to:
a. pursue their claims and causes of action against Building One to conclusion in the Alabama Action; and
b. proceed, if successful, with collection efforts on any judgment obtained, or settlement reached, only as against insurance policies that provide coverage to Building One for the matters set forth in the Alabama Action, provided, however, that to the extent Building One is responsible for satisfying any deductible, self-insured retention, etc., the Browns affirmatively waive the right, if any, to collect the amount of that deductible, self-insured retention, etc.
2. This Stipulation applies only to claims and causes of action of the Browns against Building One that arose prior to the Petition Date or that are otherwise subject to the automatic stay and that have been or are assertable in the Alabama Action.
3. Building One and the Browns agree and state that they have read the entire Stipulation and know and understand its contents, and that they have had the opportunity to consult, and have consulted with, their attorneys retained to represent them in this matter, on terms and implications of this Stipulation and that they have executed this Stipulation under their own free will and action.
4. In the event the Bankruptcy Court declines to enter this Stipulation for any reason, the agreements contained herein shall be deemed null and void and of no force or effect and the Browns shall be able/required to proceed with the Brown Motion, seeking relief from the automatic stay at a later hearing and allowing Building One an opportunity to answer such Motion. The Browns waive any and all rights to an automatic termination of the stay under Bankruptcy Code section 362(e) pending such later hearing.
5. This Stipulation is the entire agreement between the parties with respect to the subject matter of the Brown Motion.
6. This Stipulation may be executed in any number of counterparts, and all such counterparts, taken together, shall be deemed to constitute one and the same instrument.
7. This Stipulation may not be modified, except in a written instrument signed by each of the parties hereto, which modification, if material in the discretion of Building One and the Browns, shall be subject to the approval of this Bankruptcy Court.
8. Counsel for both Building One and the Browns represent that they are authorized to execute this Stipulation, subject to this Bankruptcy Court’s approval.