Case No. 02-13533 (AJG), (Jointly Administered).United States Bankruptcy Court, S.D. New York.
July 30, 2004
Sharon L. Stolte, Mark A. Shaiken, Esq., Mark S. Carder, Esq., STINSON MORRISON HECKER LLP, Overland Park, KS, Attorneys for Debtors and Debtors in Possession.
Bruce Nathan, Esq., Anusia L. Gayer, Esq., LOWENSTEIN SANDLER PC, New York, NY, Attorneys for The Fishel Company.
AGREED ORDER AND JOINT STIPULATION RESOLVING THE DEBTORS’ OBJECTION TO CLAIM NUMBER 15985
ARTHUR GONZALEZ, Bankruptcy Judge
Upon consideration of the Debtors’ Fifteenth Omnibus Objection to Proofs of Claim (Mechanic’s Lien Claims) filed by WorldCom, Inc. and certain of its direct and indirect subsidiaries, as debtors and debtors in possession (collectively, the “Debtors”), dated June 12, 2003, seeking the expungement and disallowance of proofs of claim, and good and sufficient notice having been given in accordance with the Claim Objection Procedures Order; and it appearing that the Debtors (hereinafter “Debtors”) by and
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through their undersigned counsel, Stinson Morrison Hecker LLP, together with Claimant, The Fishel Company, by and through their undersigned counsel, Lowenstein Sandler PC, hereby agree and stipulate as follows:
WHEREAS, The Fishel Company and its predecessors, successors, parents, direct subsidiaries, indirect subsidiaries, affiliates, assigns, heirs, and agents shall hereinafter be referred to in this Agreed Order and Joint Stipulation as “Fishel;”
WHEREAS, on or about January 21, 2003, Fishel filed Claim No. 15985 against MCI WorldCom Communications, Inc., Case No. 02-42233 (AJG), as a secured claim in the amount of $1,367.793.31 (hereinafter the “Claim”);
WHEREAS, the Debtors, in their Fifteenth Omnibus Objection to Mechanic’s Liens related claims dated June 12, 2003 seek to disallow and expunge: 1) Claim No. 15985 on the grounds that: a) Claimant failed to attach sufficient supporting documents; 2) claimant failed to identify the alleged collateral securing the debt asserted, does not attach evidence that the alleged secured claim is properly perfected, and does not set forth the value of the alleged collateral (called “Contested Matter”);
WHEREAS, the Debtors and Fishel desire to resolve Claim No. 15985 as follows: Debtors will pay a portion of the Claim in the amount of $655,291.00 to cure Master Agreement, Outside Plant Maintenance Construction Services, dated September 1, 2000, MCI Contract No. 1823 (“Contract No. 1823”), which had been assumed by the Debtors under the Confirmed Plan (as hereinafter defined); Fishel will be allowed a Class Three [3] Other Secured Claim in the amount of $279,658.00; and Fishel will be allowed a general unsecured claim in the amount of $426,843.00;
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WHEREAS, these claims shall be paid by Debtors to Fishel in accordance with the terms set forth in the Debtors’ Modified Second Amended Joint Plan of Reorganization, (the “Confirmed Plan”) confirmed by the United States Bankruptcy Court for the Southern District of New York (the “Court”) on October 31, 2003;
WHEREAS, the Debtors and Fishel desire to resolve without unnecessary litigation all matters and issues raised by the Contested Matter and any other claims filed or to be filed by Fishel against Debtors including but not limited to the Claim.
NOW THEREFORE in consideration for the matters recited and the releases, covenants, and promises exchanged in this Agreed Order and Joint Stipulation and for other good and valuable consideration exchanged between Debtors and Fishel, the sufficiency of which is hereby acknowledged, the Debtors and Fishel agree to be forever bound by the following terms and conditions:
1. Upon entry of this Agreed Order and Joint Stipulation Claim No. 15985 shall be allowed as follows: Debtors will pay a portion of the Claim in the amount of $655,291.00 pursuant to Section 8.05 of the Confirmed Plan to cure Contract No. 1823 (the “Cure Claim”); Fishel will be allowed a Class Three [3] Other Secured Claim in the amount of $279,658.00; and Fishel will be allowed a Class Six [6] General Unsecured Claim in the amount of $426,843.00.
2. The Cure Claim, Class Three (3) Other Secured Claim and Class Six [6] General Unsecured Claim as set forth in paragraph 1 above shall be paid by Debtors to Fishel in accordance with the terms set forth in the Confirmed Plan.
3. The execution of this Agreed Order and Joint Stipulation is intended to and shall finally settle and resolve all claims that Fishel asserted or that Fishel could have
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asserted against Debtors, including any and all claims scheduled by Debtors and all amendments thereto, as of the date of commencement of Debtors’ Chapter 11 cases, July 21, 2002 (the “Petition Date”). Upon execution of this Agreed Order and Joint Stipulation, any other claims filed by Fishel in the Debtors’ consolidated Chapter 11 bankruptcies shall be deemed withdrawn with prejudice to any future action.
4. Upon execution of this Agreed Order and Joint Stipulation, Fishel and all of Fishel’s predecessors, successors, parents, direct subsidiaries, indirect subsidiaries, affiliates, assigns, heirs, and agents hereby fully and completely release and forever discharge Debtors and all of Debtors’ predecessors, successors, parents, direct subsidiaries, indirect subsidiaries, affiliates, assigns, agents, directors, officers, representatives, employees, shareholders or any other person firm or corporation, from and concerning any and all actions, causes of action, claims, suits, debts, damages, judgments, liabilities, and demands, of any and every kind whatsoever, arising at any time through and including the Petition Date, whether matured or unmatured, whether at law or in equity, whether before a local, state, or federal court, state or federal administrative agency or commission, or arbitration tribunal and whether now known or unknown, liquidated or unliquidated, contingent or noncontingent, that Fishel and all of Fishel’s predecessors, successors, parents, direct subsidiaries, indirect subsidiaries, affiliates, assigns, heirs, and agents now has or may have had, or thereafter claims to have, on behalf of itself, or any of its predecessors, successors, parents, direct subsidiaries, indirect subsidiaries, affiliates, assigns, heirs, and agents, and arising out of or related in any way to (a) the facts, incidents, contracts and/or circumstances alleged, asserted or otherwise part of the Contested Matter; (b) any and all claims outstanding on
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the Petition Date, whether now known or unknown, including but not limited to Claim No. 15985 filed by Fishel in the above captioned matter; and (c) any disputes, whether now known or unknown, between Fishel and Debtors and related to the pre-bankruptcy obligations between and among Fishel and Debtors.
5. Upon court approval of this Agreed Order and Joint Stipulation and Fishel’s receipt of the distributions on account of the allowed claim as set forth in paragraphs 1 and 2 hereof, Fishel does hereby waive and release any and all lien(s), claim(s) or right(s) to lien on the real estate and improvement thereon as described in the Mechanic’s Liens attached to the claims identified herein, relating to mechanic’s liens on account of labor performed and/or materials or equipment furnished for said improvement by the undersigned. This waiver and release is a FULL,FINAL AND COMPLETE WAIVER and release of any and all claim(s) for or relating to mechanic’s liens upon the described real estate or improvements thereon and a full, final and complete release of any and all claims against owner and/or general and/or contractor, or their affiliates for any monies due or which may become due as a result of the provisions of any materials, labor or services or improvements made on the described real estate by Fishel as set forth in Fishel’s Claim No. 15985, the Debtors’ Schedules or otherwise outstanding on the Petition Date. For the same consideration, the undersigned, duly authorized to execute this waiver and release on behalf of Fishel, states under penalties of perjury that Fishel has paid or will pay in full for all labor performed or materials or equipment furnished by, to or on behalf of Fishel in connection with any labor, services, materials or equipment furnished by Fishel in the respects set forth above, for the purpose of inducing the above referenced Agreement. Fishel agrees to defend, indemnify and
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hold harmless the above described real estate, owner and general or any of their sureties, successors or assigns, from any and all liens, claims or causes of action asserted by any person or entity which claims to have performed labor or furnished materials in connection with work performed by Fishel.
6. The foregoing Releases set forth above are intended and shall be construed as a full and complete release, without qualification or reservation, of all the actions, causes of action, claims, suits, debts, damages, judgments, liabilities, demands and/or other matters referred to above.
7. Fishel and Debtors acknowledge that this Agreed Order and Joint Stipulation constitutes the entire agreement between the parties, and that there are no other covenants, promises, undertakings, understandings or representations, whether written or oral, which constitute or are a basis for this Agreed Order and Joint Stipulation. The parties further acknowledge that this Agreed Order and Joint Stipulation supersedes any prior agreement, promise, and/or discussion including all prior settlement discussions, whether written or verbal.
8. Fishel represents and acknowledges that in executing this Agreed Order and Joint Stipulation, Fishel has not relied upon any representations or statements made by Debtors, or any of its agents, representatives, or attorneys, with respect to the subject matter, basis or effect of its agreement and Stipulation with Debtors.
9. Fishel and Debtors represent and acknowledge that they havecarefully read and fully understand all of the provisions of this AgreedOrder and Joint Stipulation and are voluntarily entering into thisagreement.
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10. Fishel and Debtors each represent that they have not assigned, conveyed, pledged or otherwise transferred to any person or entity any claim, asserted or unasserted, that Debtors or Fishel have and/or claim to have against each other and arising from the issues raised by the Contested Matter and/or the facts and circumstances alleged in the Contested Matter. Fishel and Debtors will indemnify and hold each other harmless from any liability, claims, demands, damages, costs, expenses and attorneys’ fees incurred by any party to this Agreed Order and Joint Stipulation as a result of any person asserting any such assignment, conveyance, pledge or transfer.
11. This Agreed Order and Joint Stipulation will be binding upon and will inure to the benefit of the respective successors, assigns, and legal representatives of the Debtors and Fishel.
12. This Agreed Order and Joint Stipulation is the result of a compromise and is not to be construed as an admission by Debtors of any liability or wrongdoing of any kind whatsoever.
13. Whenever possible, each provision of this Agreed Order and Joint Stipulation will be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreed Order and Joint Stipulation is held to be prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreed Order and Joint Stipulation.
14. No amendments to this Agreed Order and Joint Stipulation shall be effective unless such amendment is in writing and signed by all parties hereto.
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15. This Agreed Order and Joint Stipulation shall not be construed against the party preparing it, but shall be construed as if all the parties jointly prepared it, and any uncertainty or ambiguity shall not on grounds of authorship be interpreted against this party.
16. Each person signing below represents and warrants that he or she is duly authorized to execute this Agreed Order and Joint Stipulation and otherwise bind the company on whose behalf he or she is signing.
IT IS SO ORDERED.
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