Opinion
BK-03-52103-GWZ BK-03-52790, Jointly Administered under BK-03-52103-GWZ.
June 9, 2004
Craig D. Hansen (AZ Bar No. 007405) Thomas J. Salerno (AZ Bar No. 007492) Sean T. Cork (CA Bar No. 211963) SQUIRE, SANDERS DEMPSEY L.L.P. Phoenix, Arizona, Attorneys for Reorganized AMERCO and Reorganized AREC.
Bruce T. Beesley (NV Bar No. 1164) Bridget Robb Peck (NV Bar No. 3143) BEESLEY, PECK MATTEONI, LTD, Reno, Nevada, Co-Counsel for Reorganized AMERCO and Reorganized AREC.
STIPULATION
AMERCO and Amerco Real Estate Company ("AREC") reorganized debtors and reorganized debtors-in-possession in the above-captioned, jointly administered chapter 11 cases (the "Reorganized Debtors"), and Banc One Leasing Corporation ("Creditor"), through their respective counsel, stipulate as follows:
1. AMERCO commenced its bankruptcy proceeding on June 20, 2003 (the "AMERCO Petition Date"), under Chapter 11 of Title 11 of the United States Code (the "Bankruptcy Code"). AREC commenced its Chapter 11 bankruptcy case on August 13, 2003 (the "AREC Petition Date").
2. On February 20, 2004, the Court entered an order (the "Confirmation Order") (Docket No. 796) confirming the Debtor's First Amended Joint Plan of Reorganization (the "Plan"). The Plan became effective on March 15, 2004 (the "Effective Date").
3. On September 30, 2003, the Court entered an order (the "Bar Date Order") (Docket No. 415) setting November 10, 2003 as the bar date for filing proofs of claim in these Chapter 11 cases (the "Bar Date"). The Bar Date Order provides that proofs of claim filed after the Bar Date will not be allowed in these Chapter 11 cases.
4. Creditor filed Claim No. 315 on November 6, 2003, which asserted a claim against AMERCO in the amount of $21,126,202.32. The basis of this claim was the execution, before the AMERCO Petition Date, by Creditor and AMERCO, of certain guaranties of various lease agreements between U-Haul Leasing and Sales Company and Creditor (the "Guaranty Agreements").
5. The claim filed by Creditor asserts a guaranty claim against AMERCO, and, as such, constitutes a Class 11 Claim under the Plan. Article 5.11 of the Plan provides for the treatment of all guaranty obligations in Class 11 by reinstating such guaranty obligations as of the Effective Date and curing certain non-monetary defaults under such guaranty obligations. The Plan identifies the guaranty obligations of Creditor as being reinstated on the Effective Date.
6. On April 29, 2004, the Reorganized Debtors filed the "Reorganized Debtors' Tenth Omnibus Objection to Guaranty Claims" (the "Objection") (Docket No. 918). The Objection seeks the disallowance of guaranty claims filed against the estates on the basis that Article 5.11 of the Plan satisfied such claims in full, and thus no amounts are owing to the holders of such claims from the Reorganized Debtors' bankruptcy estates. Creditor's claim is subject to the Objection.
7. The Reorganized Debtors and Creditor agree that the Guaranty Agreement was reinstated under Article 5.11 of the Plan and pursuant to the Stipulation Between Debtors and Banc One Leasing Corporation And Bank One, NA Regarding Claims Under First Amended Joint Plan of Reorganization and Order Approving Stipulation, which were filed and entered on the docket on or about January 23, 2004 (the "Stipulation and Order"), and that the Objection and Creditor's claim should be resolved consensually.
8. Based upon the foregoing, the Reorganized Debtors and Creditor stipulate and agree that Claim No. 315 (the "Claim") has been adequately treated under the Plan and under the Stipulation and Order, and that no cash distributio need to be made from the Reorganized Debtors' bankruptcy estates on account of such Claim, that the Claim should be withdrawn, and that the Objection should be withdrawn as to the Creditor's Claim only.
9. Accordingly, the Reorganized Debtors and Creditor stipulate to the proposed Order set forth below withdrawing the Claim.
WHEREFORE, the parties request an order approving and granting relief consistent with this Stipulation.
ORDER
Based on the stipulation of the parties, and good cause appearing,
IT IS HEREBY ORDERED that:
1. Claim No. 315 filed by Creditor is withdrawn, and Creditor shall receive no further distributions from the Reorganized Debtors' bankruptcy estates on account of such Claim. The withdrawal of this Claim will not impact reinstatement of any guarantee obligations of Creditor under Section 5.11 of the Plan or under the Stipulation Between Debtors and Banc One Leasing Corporation and Bank One, NA Regarding Claims Under First Amended Joint Plan of Reorganization and the Order Approving Stipulation, which were filed and entered on the docket on or about January 23, 2004.
2. Creditor's withdrawal of this Claim will not impair or prejudice any rights or remedies it may have under the Guaranty Agreements should an event of default arise under the Guaranty Agreements at any time.
3. The Reorganized Debtors' Objection is withdrawn only as to Claim No. 315 of the Creditor.