Case No. 03-27626 (Jointly Administered)United States Bankruptcy Court, N.D. Illinois.
December 11, 2003
David A. Agay, KIRKLAND ELLIS LLP, Ryan Blaine Bennett, Scott R. Zemnick, Chicago IL, for the Debtors and Debtors in Possession
Richard M. Bendix Jr. SCHWARTZ COOPER GREENBERGER KRAUSS, CHARTERED, David E. Beker, Chicago, Illinois for Stephen and Stacy Sturm
AGREED ORDER LIFTING THE AUTOMATIC STAY
PAMELA S. HOLLIS, Bankruptcy Judge
This matter comes before the Court on the Motion of Stephen and Stacy Sturm (the “Movants”) to Modify the Automatic Stay (the “Motion”) with respect to the personal injury lawsuit filed against, among others, National Equipment Services, Inc. d/b/a NES Studio Rentals, one of the above-captioned debtors and debtors in possession (the “Debtor”), in the Superior Court for the State of California, Los Angeles County (the “Superior Court”), Case No. LC 063983 (the “Personal Injury Case”); due and proper notice of the Motion and an opportunity to object having been given; it appearing that sufficient cause exists for granting the requested relief as set forth herein; and that the relief requested herein is in the best interests of the Debtors’ estates, creditors and the Movants; the parties having reached an amicable resolution as memorialized herein:
IT IS HEREBY ORDERED THAT:
A. The Motion is granted as set forth herein.
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B. Effective upon the date of entry of this Agreed Order and pursuant to section 362 of chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”), the automatic stay is hereby modified for the sole and limited purpose of permitting the Movants to (i) proceed with up to twelve (12) depositions of witnesses associated with the Debtor in the Personal Injury Case, and the document production associated and/or related to such depositions; (ii) issue interrogatories with respect to the Personal Injury Case; and (iii) proceed with the Personal Injury Case in the Superior Court on the previously scheduled trial date of April 21, 2004 to and including the entry of judgment against the Debtor and/or to conduct negotiations directly with the Debtor or the Debtor’s applicable insurance carriers.
C. The Movants shall have authority to collect all monetary or other forms of remuneration or relief, if any, to which the Movants may be determined to be entitled in connection with the Personal Injury Caseonly from the Debtor’s applicable insurance carriers.
D. Notwithstanding the foregoing, no settlement or judgment associated with the Personal Injury Case, if any, may be enforced against the assets of any of the Debtors’ estates; Provided, however, the Movants may file an unsecured claim against the Debtors’ estates for any portion of any settlement or judgment obtained against the Debtor in the Personal Injury Case that is not paid by the Debtors’ applicable insurance carrier, and the Debtors’ rights to object to such claim shall be preserved.
E. Movants shall not seek further relief from the automatic stay in these chapter 11 cases with respect to the Personal Injury Case before January 31, 2004.
F. This Agreed Order shall be without prejudice to the Movants’ right to seek further relief from the automatic stay in these chapter 11 cases after January 31, 2004, if necessary.
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G. Nothing herein is intended or shall be construed to waive any defenses, setoffs, objections or counterclaims that the Debtors or the Debtors’ applicable insurance carriers may have with respect to the Personal Injury Case.
H. This Court shall retain jurisdiction to hear and determine all matters arising from or related to the implementation of this Agreed Order.
I. The terms and conditions of this Agreed Order shall be immediately effective and enforceable upon its entry.
J. This Agreed Order is subject to the approval of the Court and the terms and provisions as provided herein shall be void and of no further effect if such approval is not granted.
K. This Agreed Order may be executed in multiple facsimile or original counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
L. Each of the undersigned counsel represents that he or she is authorized to execute this Agreed Order on behalf of his or her respective client.