Opinion
BK-03-52103-GWZ, BK-03-52790-GWZ, Jointly Administered under BK-03-52103-GWZ.
June 3, 2004
SQUIRE, SANDERS DEMPSEY L.L.P., Craig D. Hansen and Sean T. Cork, Attorneys for the Debtors and Debtors-in-Possession.
AKIN GUMP STRAUSS HAUER FELD LLP, Kevin Rice, Attorney for GMAC, Third Note Trust and Senior Trust.
STIPULATION
AMERCO and Amerco Real Estate Company, reorganized debtors and reorganized debtors-in-possession in the above-captioned, jointly administered chapter 11 cases (the "Reorganized Debtors"), GMAC Commercial Holding Capital Corporation ("GMAC"), LaSalle Bank National Association, as Trustee for the Third Note Trust, Series PMSRLP ("Third Note Trust"), by and through its servicer, GMAC Commercial Mortgage Corporation, and LaSalle Bank National Association, as trustee for Commercial Pass-through Certificates, Series 2003-PMSLP ("Senior Trust"), by and through its servicer, GMAC Commercial Mortgage Corporation, 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"). Amerco Real Estate Company ("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 Debtors' 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. GMAC filed Claim No. 362 on November 6, 2003, which asserted an unsecured, contingent claim against AMERCO in the amount of $55,000. The basis of this claim was the execution, before the AMERCO Petition Date, by GMAC and AMERCO (among others), of that certain PMPP Support Party Agreement dated March 2003 (the "PMPP Agreement"). Under the PMPP Agreement, AMERCO guaranteed the obligations of PM Preferred Properties, L.P. for the benefit of GMAC. The parties amended the PMPP Agreement by the First Amendment to Support Party Agreement dated as of June 13, 2003 (the "Amendment"). Accordingly, Claim No. 362 asserted a claim against AMERCO only to the extent that AMERCO's guaranty obligations under the PMPP Agreement and Amendment become due and owing to GMAC.
5. GMAC filed Claim No. 645 on November 21, 2003, which amended Claim No. 362 to assert an unsecured, contingent claim against AMERCO in the amount of $55,000,000.
6. Third Note Trust filed Claim No. 506 on November 10, 2003, which asserted an unsecured, contingent claim against AMERCO in the amount of $25,000,000. The basis of this claim was the PMPP Support Agreement and Amendment, under which AMERCO guaranteed the obligations of PM Preferred Properties, L.P., for the benefit of Third Note Trust.
7. Senior Trust filed Claim No. 507 on November 10, 2003, which asserted an unsecured, contingent claim against AMERCO in the amount of $175,000,000. The basis of this claim was the PMPP Support Agreement and Amendment, under which AMERCO guaranteed the obligations of PM Preferred Properties, L.P., for the benefit of Senior Trust.
8. The claims filed by GMAC, Third Note Trust and Senior Trust assert guaranty claims against AMERCO, and, as such, constitute Class 11 Claims under the Plan. Article 5.11 ofhe 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 GMAC, Third Note Trust and Senior Trust as being reinstated on the Effective Date.
9. GMAC filed a limited objection to confirmation of the Plan (the "Limited Objection") (Docket No. 693), which was resolved by a stipulated order entered on January 27, 2003 (the "Stipulated Order") (Docket No. 735). Under the Stipulated Order, GMAC agreed to withdraw the Limited Objection and the Reorganized Debtors agreed that any claim of GMAC under the PMPP Agreement was a Class 11 claim, and further agreed to promptly pay to GMAC its reasonable legal fees and expenses in cash.
10. Based upon the foregoing, the Reorganized Debtors, GMAC, Third Note Trust and Senior Trust stipulate and agree that Claim Nos. 362, 506, 507 and 645 (collectively, the "Claims") have been adequately treated under the Plan, and, in the case of GMAC, the Stipulated Order, and that no cash distributions need to be made on account of such Claims, and that the Claims should be withdrawn.
11. Accordingly, the Reorganized Debtors, GMAC, Third Note Trust and Senior Trust stipulate to the proposed Order set forth below withdrawing the Claims.
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 ORDERED that:
1. Claim Nos. 362 and 645 filed by GMAC are withdrawn, and GMAC shall receive no further distributions from the Reorganized Debtors' estates on account of such claims. The withdrawal of these claims will not impact the reinstatement of any guarantee obligations under Section 5.11 of the Plan.
2. Claim Nos. 506 and 507 filed by Third Note Trust and Senior Trust are withdrawn, and Third Note Trust and Senior Trust shall receive no further distributions from the Reorganized Debtors' estates on account of such claims. The withdrawal of these claims will not impact the reinstatement of any guarantee obligations under Section 5.11 of the Plan.