CASE NO. 02-43582-H4-11 Jointly AdministeredUnited States Bankruptcy Court, S.D. Texas.
January 16, 2004
Marcy E. Kurtz, BRACEWELL PATTERSON, L.L.P., Houston, Texas, Counsel to the Debtors Disbursing Agent
Peter C. Lewis, WALKER, BRIGHT LEWIS, P.C., Dallas, Texas, Counsel to Lennox Industries Inc.
STIPULATION, RELEASE OF CLAIMS AND AGREED ORDER REGARDING LENNOX INDUSTRIES INC’S MOTION FOR ALLOWANCE AND PAYMENT OF ADMINISTRATIVE CLAIM (DOCKET# 2848)
WILLIAM GREENDYKE, Bankruptcy Judge
Encompass Services Corporation and its subsidiaries (the “Debtors”) and Leonox Industries Inc. (the “Claimant”) (Claimant together with the Debtors are hereinafter the “Parties”) stipulate and agree as follows:
1. WHEREAS, on November 19, 2002, the Debtors filed their voluntary petitions for relief under Chapter 11 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 and its Affiliated Debtors Under Chapter 11 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, the Debtors assert that 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.
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4. WHEREAS, on July 25, 2003, the Claimant filed its Motion for Allowance and Payment of Administrative Claim (Docket No. 2848) (the “Administrative Application”) alleging an administrative claim in the amount of $74,585.90 (“the Administrative Claim”) pursuant to a critical vendor agreement detailed therein (the “Critical Vendor Agreement”).
5. WHEREAS, the Disbursing Agent alleges that the Claimant currently owes the Debtors at least $117,719.00 for earned rebates (the “Rebate Claim”) under a purchase and supply agreement (the “Purchase and Supply Agreement”) dated January 1, 2000 by and between the Claimant and the Debtors specified therein.
NOW THEREFORE, THE PARTIES HERETO STIPULATE AND AGREE AS FOLLOWS:
1. that, in full and and settlement of the disputes and claims existing among the parties hereto, the Administrative Claim shall he, and is hereby deemed to be, an allowed administrative claim in the above styled Debtors’ bankruptcy cases (the “Bankruptcy Cases”) pursuant to 11 U.S.C. § 503 (b)(1)(A) upon approval of this Stipulation by the Bankruptcy Court presiding over the Bankruptcy Cases as evidenced by an order entered in the Bankruptcy Cases approving this Stipulation which has become final and unappealable, provided, however, that the allowed Administrative Claim shall be paid by way of offset against the Rebate Claim and the Claimant has agreed to and Shall pay the Disbursing Agent $43,133.10 on or before the seventh (7th) business day following the date an order entered in the Debtors’ above-styled and pending bankruptcy proceeding approving this Stipulation becomes final and unappealable.
2. that, upon receipt by the Disbursing Agent of the funds identified in the immediately preceding paragraph, each of the Claimant and the Debtors, for themselves and on behalf of each of the respective affiliates, and except as provided herein, hereby RELEASE, ACQUIT, and FOREVER DISCHARGE each other from any and all claims, demands, and causes of action of
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any nature whatsoever, whether arising under any contract or in tort, which in any way related to any of the acts, events, dealings or transactions that are the subject of or contemplated by the Critical Vendor Agreement, the Purchase and Supply Agreement, or any other course of dealings between the Claimant, the Debtors or any of their respective affiliates, and agree that this Agreement releases any and all claims, demands, and causes of action of any nature whatsoever that they may have, whether or not asserted at the time of the execution of this Agreement, for any injuries or damages of any kind whatsoever, whether known or unknown that occurred as a result of or are in any way related to the Critical Vendor Agreement, the Purchase and Supply Agreement, or any other course of dealings between the Claimant, the Debtors or any of their respective affiliates, or any of the acts, events, dealings, or transactions that are the subject of or contemplated by the Critical Vendor Agreement, the Purchase and Supply Agreement, or any other course of dealings between the Claimant, the Debtors or any of their respective affiliates. This release shall not apply, however, to the Parties’ rights and obligations under this Agreement. Each party hereto further acknowledges and agrees that it may hereafter discover claims or facts in addition to or different from those now known or believe to be true with respect to the matters described and released herein. Nevertheless, it is each party’s intention fully, finally, and forever to release each other from all claims relative to such matters, which now exist or which may exist in the future, In furtherance of such intention, this Agreement shall remain in effect as a full and complete release of all such claims.
3. Except as provided herein, each party hereto covenants and agrees not to bring, file, charge, claim, sue, cause, assist, or permit to be brought, filed, charged or claimed any action, cause of action, or proceeding based upon any of the claims released under Paragraph 2 of this
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Agreement, and further covenants and agrees that this Agreement is, will constitute and may be pleaded as, a bar to any such claim, action, cause of action or proceeding.
4. Each party hereto represents and warrants:
a. Such party has all requisite power and authority to enter into this Agreement. The execution, delivery, and performance of this Agreement has been duly and validly authorized by all necessary action on the part of such party, including without limitation obtaining all necessary consents or waivers. This Agreement constitutes a valid and binding obligation of such party, enforceable in accordance with its terms.
b. The execution, delivery, and performance of this Agreement will not conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which such party is a party or by which it is bound.
5. that this Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof and may not be modified or amended except by a writing executed by or on behalf of the Parties.
6. that the Claimant does not have any surviving claim against the Debtors in these bankruptcy cases.
7. mat the Debtors expressly reserves the right to object to any Claim not subject to this Stipulation.
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IT IS HEREBY ORDERED that the Stipulation is approved.