CASE NO. 02-43582-H4-11 Jointly AdministeredUnited States Bankruptcy Court, S.D. Texas.
April 12, 2004
ORDER ON DISBURSING AGENT’S OBJECTION TO PROOF OF CLAIM NO. 3130 FILED BY BANKERS TRUST COMPANY (Docket # 3367)
WILLIAM GREENDYKE, Bankruptcy Judge
On this day, the Court considered the Disbursing Agent’s Objection to Proof of Claim No. 3130 Filed by Bankers Trust Company (Docket # 3367) (the “Objection”). The Court, after reviewing the Objection, considering the arguments of counsel and considering the affidavit of Todd Matherne, finds that the Objection has been properly served pursuant to the Federal and Local Rules of Bankruptcy Procedure and that the Objection is well taken and should be granted.
IT IS, THEREFORE, ORDERED, ADJUDGED, and DECREED, that the Objection is GRANTED, and that the proof of claim attached to and incorporated as Exhibit “A” to the Objection (the “Claim”) is disallowed in its entirety. It is further
ORDERED that this Order is without prejudice to the Disbursing Agent’s right to object to the Claim on all other and further grounds.
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[EDITORS’ NOTE: EXHIBIT A IS ELECTRONICALLY NON-TRANSFERRABLE.]Page 3
[EDITORS’ NOTE: IMAGE IS ELECTRONICALLY NON-TRANSFERRABLE.]Page 4
Loan Form Standby Letter of Credit
Borrower: ENCOMPAS5 SERVICES CORP
Outstandings x Rate [4.0%]
Base Rate: N/A spread: N/A RAC Rate: N/A All In Rate: MA
Agent: BK AMER
REMITTANCE INSTRUCTIONS
N/A
GENERAL COMMENTS
2-30-2002 EVERARDUS ROZING AUTOMATIC EXTENSION STANDBY LETTER OF CREDIT HILL AUTOMATICALLY EXTEND ON MARCH 1, 2003 TO A HEW EXPIRATION DATE OF APRIL 30. 2004
BENEFICIARY — LIBERTY MUTUAL INSURANCE COMPANY APPROVED NOT APPROVED
Bankers Trust Company LOAN DIVISION STANDBY LETTER OF CREDIT
14TH FLOOR 130 LIBERTY STREET NEW YORK, N.Y. 10006
IRREVOCABLE LETTER OF AUGUST 31, 1999 CREDIT NO. S-13075
BENEFICIARY: APPLICANT:
LIBERTY MUTUAL INSURANCE COMPANY BUILDING ONE SERVICES H.O. FINANCIAL-CREDIT CORPORATION 175 BERKELEY STREET FOR THE BENEFIT OF BOSTON, MA. 02117 REGENCY ELECTRIC COMPANY, INC. ATTN: S.J. WHALEN, SECURITIES ANALYST
DEAR SIR:
WE HEREBY ESTABLISH, EFFECTIVE NOVEMBER 1, 1999. THIS IRREVOCABLE LETTER OF CREDIT IN YOUR FAVOR FOR ACCOUNT OF BUILDING ONE SERVICES CORPORATION AND FOR THE BENEFIT OF REGENCY ELECTRIC COMPANY, INC., FOR DRAWINGS UP TO U.S. DOLLARS FOUR HUNDRED FIFTY THOUSAND AND 00/100 **US$450,000.00** (THE “STATED AMOUNT), EFFECTIVE IMMEDIATELY AND EXPIRING AT OUR OFFICE LOCATED AT ONE BANKERS TRUST PLAZA. NEW YORK, NEW YORK 10006, ATTENTION COMMERCIAL LOAN DIVISION, STANDBY LETTER OF CREDIT UNIT — MS2143 WITH OUR CLOSE OF BUSINESS ON OCTOBER 31, 2000, (THE “EXPIRATION DATE”).
WE HEREBY UNDERTAKE TO PROMPTLY HONOR YOUR SIGHT DRAFT(S) DRAWN ON US, INDICATING OUR LETTER OF CREDIT NUMBER S-13075 FOR ALL OR ANY PART OF THIS LETTER OF CREDIT IF PRESENTED AT OUR OFFICE LOCATED AT ONE BANKERS TRUST PLAZA, NEW YORK, NEW YORK 10006, ATTENTION COMMERCIAL LOAN DIVISION, STANDBY LETTER OF CREDIT UNIT — MS2143 ON OR BEFORE THE EXPIRATION DATE OR ANY AUTOMATICALLY EXTENDED EXPIRATION DATE.
DRAFT(S) DRAWN UNDER THIS LETTER OF CREDIT MUST BE MARKED “DRAWN UNDER BANKERS TRUST COMPANY LETTER OF CREDIT NO. S-13075”.
IT IS A CONDITION OF THIS LETTER OF CREDIT THAT THE EXPIRATION DATE IS DEEMED TO BE AUTOMATICALLY EXTENDED, WITHOUT AMENDMENT, FOR ONE YEAR FROM THE PRESENT OR ANY FUTURE EXPIRATION DATE HEREOF, UNLESS AT LEAST SIXTY (60) DAYS PRIOR TO ANY SUCH EXPIRATION DATE, WE NOTIFY YOU IN WRITING BY REGISTERED MAIL OR BY COURIER ADDRESSED TO LIBERTY MUTUAL INSURANCE COMPANY, H.O. FINANCIAL — CREDIT, S.J. WHALEN, SECURITIES ANALYST, 175 BERKELEY STREET, BOSTON, MA. 02117 THAT WE ELECT NOT TO EXTEND THE EXPIRATION DATE FOR ANY SUCH ADDITIONAL PERIOD.
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EXCEPT AS EXPRESSLY STATED HEREIN. THIS UNDERTAKING IS NOT SUBJECT TO ANY AGREEMENT. CONDITION OR QUALIFICATION. OUR OBLIGATION UNDER THIS LETTER OF CREDIT SHALL BE OUR INDIVIDUAL OBLIGATION AND IS IN NO WAY CONTINGENT UPON REIMBURSEMENT WITH RESPECT THERETO. OR UPON OUR ABILITY TO PERFECT ANY LIEN, SECURITY INTEREST OR ANY OTHER REIMBURSEMENT.
WE HEREBY ENGAGE WITH YOU THAT DRAFT(S) DRAWN UNDER. AND IN COMPLIANCE WITH THE TERMS OP THIS LETTER OF CREDIT WILL BE HONORED BY US ON DUE PRESENTATION TO US.
THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NO. 500, (THE “UCP”). HOWEVER, IF THIS LETTER OF CREDIT CONTAINS A DRAWING SCHEDULE OR A SCHEDULE OF AVAILABILITY, THEN ARTICLE 41 OF THE UCP DOES NOT APPLY. IN ADDITION, IF THIS LETTER OF CREDIT EXPIRES DURING AN INTERRUPTION OF OUR BUSINESS AS DESCRIBED IN ARTICLE 17 OF THE UCP, WE HEREBY SPECIFICALLY AGREE TO EFFECT PAYMENT IF THIS LETTER OF CREDIT IS DRAWN AGAINST WITHIN THIRTY (30) DAYS AFTER THE RESUMPTION OF OUR BUSINESS.
VERY TRULY YOURS