Case No. 03-27626 (Jointly Administered)United States Bankruptcy Court, N.D. Illinois.
December 11, 2003
James A. Stempel, David A. Agay, Ryan Elaine Bennett, Scott R. Zemnick, KIRKLAND ELLIS LLP, Chicago, IL, for Debtors
Ingrid S. Palermo, HARTER, SECREST EMERY LLP, Rochester, New York, for Eastman Kodak Company
STIPULATION AND AGREED ORDER BY AND AMONG THE DEBTORS AND EASTMAN KODAK COMPANY
PAMELA S. HOLLIS, Bankruptcy Judge
THIS STIPULATION AND AGREED ORDER is before the Court on the stipulation and agreement of the above-captioned debtors and debtors if possession (collectively, the “Debtors”) and Eastman Kodak Company (“Eastman Kodak”), as evidenced and indicated by the signatures hereto; and the Court being advised that this Stipulation and Agreed Order has been submitted in resolution, of the Motion of Eastman Kodak Company for Relief from Automatic Stay [Docket No. 4621] (the “Motion”); and the Court being further advised of the following:
A. On May 17, 2001, Thomas S. Spencer and Dora J. Spencer commenced a personal injury action against. Eastman Kodak in the Monroe County Supreme Court (the “State Court”), in Rochester, New York, Index Number 5733/01 (the “Spencer Action”).
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B. On August 21, 2001, Eastman Kodak commenced a third-party action in the Spencer Action against Albany Ladder Company, Inc. (“Albany Ladder”), one of the Debtors in these chapter 11 cases, seeking indemnification (the “Indemnification Action” and together with the Spencer Action, the “State Court Proceedings”). The State Court Proceedings were stayed by the filing of the chapter 11 eases.
C. On or about October 27, 2003, Eastman Kodak filed the Motion seeking relief from the automatic stay in these chapter 11 cases to permit the State Court Proceedings to proceed in the State Court.
D. The Debtors and Eastman Kodak have agreed to resolve the Motion pursuant to the terms and conditions set forth in this Stipulation and Agreed Order.
NOW, THEREFORE, IT APPEARING THAT SUFFICIENT CAUSE EXISTS FOR GRANTING THE RELIEF REQUESTED HEREIN AND THAT THE RELIEF REQUESTED HEREIN IS IN THE BEST INTERESTS OF THE DEBTORS’ ESTATES AND CREDITORS, IT IS HEREBY ORDERED AS FOLLOWS:
1. The foregoing recitals are hereby fully incorporated into and made an express part of this Stipulation and Agreed Order.
2. The automatic stay provision of section 362 of the Bankruptcy Code shall be modified (or the sole and limited purpose of permitting (a) the State Court Proceedings to proceed against Albany Ladder in the State Court to and including the entry of judgment against Albany Ladder and/or (b) Eastman Kodak to conduct negotiations directly with the Debtors’ applicable insurance carriers; provided, however, that no monetary settlement or judgment
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associated with the State Court Proceedings, if any, may be enforced against the assets of the Debtors’ estates other than the funds available under the Debtors’ applicable insurance policies.
3. Eastman Kodak shall have authority to collect all monetary or other forms of remuneration or relief, if any, to which such party may be determined to be entitled in connection with the State Court Proceedingsonly from the Debtors’ applicable insurance carriers. Eastman Kodak hereby waives its rights to collect any such monetary or other forms of remuneration or relief in connection with the State Court Proceedings from the Debtors or the Debtors’ estates.
4. The Debtors shall have no obligation whatsoever to make any distribution of any property to Eastman Kodak in connection with the State Court Proceedings, including on account of any proof of claim Eastman Kodak has filed, could have potentially filed or could potentially file against the Debtors and the Debtors’ estates.
5. Nothing herein is intended or shall be construed to waive any defenses, setoffs, objections or counterclaims that the Debtors or the Debtors’ applicable insurance earners may have with respect to the State Court Proceedings.
6. This Court shall retain jurisdiction to hear and determine all matters related to the entry of this Stipulation and Agreed Order. Eastman Kodak consents to the jurisdiction of this Court to resolve any disputes or controversies between the parties hereto arising from or related to this Stipulation and Agreed Order.
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7. This Stipulation and Agreed Order is subject to the approval of this Court, and the terms and provisions of the agreement contained herein shall be void and of no further force and effect if such approval is not granted.
8. Each of the undersigned counsel represents that he is authorized to execute this Stipulation and Agreed Order on behalf of his respective client.
9. This Stipulation and Agreed Order may be executed in multiple facsimile or original counterparts, each of which shall he deemed an original, hut all of which shall constitute one and the same instrument.