CASE NO. 02-43582-H4-11, Jointly AdministeredUnited States Bankruptcy Court, S.D. Texas.
November 26, 2003
Marcy E. Kurtz, BRACEWELL PATTERSON, L.L.P., Houston, Texas, for Counsel to the Debtors’ Disbursing Agent
Lee A. Collis, BOYAR MILLER, P.C., Houston, Texas, for Counsel to Alderwood Mall, L.L.C., et al.
STIPULATION AND AGREED ORDER NGARDING ALDERWOOD MALL, L.L.C., et al’.s APPLICATION FOR PAYMENT OF ADMINISTRATIVE CLAIMS AND/OR POST CONFIRMATION EXPENSE CLAIMS AND ALLOWANCE OF CERTAIN CLAIMS AS ADMINISTRATIVE EXPENSE CLAIMS UNDER CONFIRMED JOINT PLAN OF REOKGANIZATION (DOCKET NO. 2844)
WILLIAM GREENDYKE, Bankruptcy Judge
Aldenvood Mall, L.L.C., Bayshore Mall Partners, Bellis Fair Partners, Boise Mall, L.L.C., Boulevard Associates, Chapel Hills Mall, L.L.C., Clackamas Mall, L.L.C., GGP-Gateway Mall, L.E.C., GGP Ivanhoe 11, Inc., GGP-Tucson Mall, L.L.C., Newgate Mall, L.L.C., Park Mall, L.L.C., Pembroke Lakes Mall, Price Development Company, L.P., Rio West, L.L.C., RS Properties, Inc., Southwest Plaza, L.L.C., Tracy Mall Partnership, L.P., U-K LaSalle, Inc., and West Oaks Mall Trust (collectively, the “GGP Malls”),[1] creditors and parties in interest of Encompass Services Corporation and its subsidiaries (the “Debtors”) and the GGP Malls (“GGP Malls” and together with the Debtors, the “Parties”) stipulate as follows:
1. WHEREAS, on November 19, 2002, the Debtors filed their voluntary petitions for relief under Chapter 1I of the United States Bankruptcy Code.
2. WHEREAS, on May 21, 2003, this Court entered an order confirming the Immaterially Modified Second Amended Join Plan of Reorganization of Encompass Services Corporation aid its Affiliated Debtors Under Chapter I1 of the Bankruptcy Code and supplemented by the Plan Supplement, the First Amended Plan Supplement, and the Second Amended Plan Supplement (collectively, the “Plan”). On June 9, 2003, the Plan became effective.
3. WHEREAS, as of the Effective Date, and pursuant to Article 5.3 of the Plan, each of Debtor’s assets and liabilities were merged with and pooled with the assets and liabilities of each of the other Debtors, and each and every Claim filed or to be filed in the Chapter 11 case of any of the Debtors is deemed filed against the consolidated Debtors and is deemed one Claim against, and obligations of, the consolidated Debtors.
4. WHEREAS, on July 24, 2003, the GGP Malls filed their Application for Payment of Administrative Expense Claims and/or Post Confirmation Expense Claims and Allowance of Certain Claims as Administrative Expense Claims Under Confirmed Joint Plan of Reorganization (Docket No. 2844) (the “Application”) against the Debtors.[2]
5. WHEREAS, on October 9, 2003, the Disbursing Agent filed its Objection to the Application.
6. WHEREAS, the Disbursing Agent believes that the GGP Malls’ claim, if determined to be a valid obligation, would be fully funded by the Debtors’ insurance policies.
7. WHEREAS, all applicable deductibles, retentions, and/or loss reimbursement requirements for Debtors’ insurance policies being fully funded and/or pre-paid by the Debtors, as represented by the Debtors and the Disbursing Agent.
NOW THEREFORE, THE PARTIES HERETO STIPULATE AS FOLLOWS:
1. that the GGP Malls’ claim is disallowed for purposes of distribution from the Debtors’ estate except as provided herein;
2. that the GGP Malls may pursue compensation for its claim pursuant to any of the Debtors’ applicable insurance policies, including filing any action against Debtors’ insurance company or other action necessary to liquidate such claim;
3. that nothing in this Stipulation shall affect, impair, release, bar or otherwise limit the liability of or alter or modify the duties and/or obligations of Debtors’ insurance carrier, including, without limitation, CNA Insurance Company or any of its subsidiaries, parents, and/or affiliates to the GGP Malls or the GGP Malls rights under any policy or policies of insurance.
4. that this Stipulation is not an admission of liability on the underlying obligation of the GGP Malls’ claim;
5. that the GGP Malls may reassert their claim for distribution from the Debtors’ estate, including, without limitation, reasserting the Application, if, and only if: (a) insurance coverage is denied under any of Debtor’s applicable insurance policies for any claim or claims for which the GGP Malls may be entitled to indemnification under the Cleaning Service Contracts an/or applicable non-bankruptcy state law; and (b) such claim or claims are filed within twenty (20) days of notification of the denial of coverage to the GGP Malls, such time period may be extended by agreement of the Parties;
6. that in the event the GGP Malls reassert their claim for distribution in accordance with paragraph 5 above, the Debtors shall have twenty (20) days from the date of the filing of such claim to file an objection to such claim;
7. that if the GGP Malls are unable to establish liability for the matters commenced in accordance with paragraph 5 above, they will be barred from reasserting such respective claim against the Debtors’ estate;
8. that the Debtors expressly reserve the right to object to any Claim not subject to this Stipulation;
9. that nothing in this Stipulation shall waive any rights and/or remedies under the Cleaning Service Contracts; and
10. that nothing in this Stipulation shall affect or impair any unsecured non-priority claim of the GGP Malls.
IT IS HEREBY ORDERED that the Stipulation is approved.
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