CASE NO. 02-43582-H4-11 Jointly AdministeredUnited States Bankruptcy Court, S.D. Texas.
April 17, 2004
Marcy E. Kurtz, BRACEWELL PATTERSON, L.L.P., Houston, Texas, Counsel to the Debtors’ Disbursing Agent
Don Frankl, RESOURCE CENTER, Beachwood, Ohio, for Resource Center Partner
R. Michael Farquhar, Mark Brannum, Winstead Sechrest Minick P.C., Dallas, TX, for Lenders
STIPULATION, RELEASE OF CLAIMS AND AGREED ORDER REGARDING THE DISBURSING AGENT’S OMNIBUS OBJECTION TO PROOFS OF CLAIM FOR FAILURE TO MITIGATE WITH RESPECT TO CLAIM NO. 2132 FILED BY THE RESOURCE CENTER (DOCKET NO. 3964)
WILLIAM GREENDYKE, Bankruptcy Judge
Encompass Services Corporation and its subsidiaries (the “Debtors”) and the Resource Center and its affiliates (the “Claimant” and collectively, 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 April 3, 2003, the Claimant filed proof of claim number 2132 in Bankruptcy Case No. 02-43582 (the “Proof of Claim”) alleging a general unsecured claim in the amount of $260,338.19.
5. WHEREAS, on February 24, 2004, the Disbursing Agent filed his Omnibus Objection to Proofs of Claim for Failure to Mitigate (Docket No. 3964) (the “Objection”) objecting to, inter alia, the Proof of Claim.
NOW THEREFORE, THE PARTIES HERETO STIPULATE AND AGREE AS FOLLOWS:
1. That, in full and final settlement of the disputes and claims existing among the parties hereto, the Proof of Claim shall be allowed as a general unsecured claim in the amount of $153,045.00, with the remainder of the claim disallowed in its entirety.
2. That, the Claimant and the Debtors, for themselves and on behalf of each of the respective affiliates, hereby RELEASE, ACQUIT, and FOREVER DISCHARGE each other from any and all claims, including all claims filed against the Debtors in the bankruptcy case, demands, and causes of action of 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, 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 any course of dealings between the Claimant, the Debtors or any of their respective affiliates, or any of the acts, events, dealings, or transactions. 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
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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. 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 this 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, except as set forth herein, against the Debtors in these bankruptcy cases.
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7. That the Debtors expressly reserve the right to object to any Claim not subject to this Stipulation.
IT IS HEREBY ORDERED that the Stipulation is approved.