Opinion
BK-03-52103-GWZ and BK-03-52790-GWZ;, Jointly Administered under BK-03-52103-GWZ
June 9, 2004
Craig D. Hansen (AZ Bar No. 007405), Sean T. Cork (CA Bar No. 211963), Thomas J. Salerno (AZ Bar No. 007492, SQUIRE, SANDERS DEMPSEY L.L.P., Phoenix, Arizona, Attorneys for Reorganized AMERCO and Reorganized AREC.
Bruce T. Beesley (NV Bar No. 1164), Bridget R. 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, reorganized debtors and reorganized debtors-in-possession in the above-captioned, jointly administered chapter 11 cases (the "Reorganized Debtors"), and Travelers Casualty Surety Company of America and affiliates ( "Travelers"), 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. Travelers filed Claim No. 1 on June 26, 2003, which asserted a contingent, unliquidated, general unsecured claim in the amount of $9,543,392.42 (the "Travelers Claim"). This claim primarily arises under seven surety bonds issued by Travelers (or Travelers' predecessors) to certain obligees (the "Bonds"). Travelers asserts that pursuant to that certain General Contract Of Indemnity executed on November 19, 2002 (the "Indemnity Contract"), AMERCO is required to pay all premiums and to indemnify Travelers if Travelers incurs costs, loss or other expenses in relation to the Bonds.
5. On April 29, 2004, the Reorganized Debtors filed the "Reorganized Debtors' Objection To Proof of Claim Filed By Travelers Casualty Surety Company Of America" (the "Objection"). The Objection asserts: (1) that no amounts are due and owing under the Bonds; (2) that the Travelers Claim should be disallowed to the extent that the Debtors are not identified as principals on the Bonds; (3) that the Travelers Claim should be disallowed to the extent it asserts claims on behalf of third parties; and (4) that the Travelers Claim should be disallowed to the extent it seeks an administrative expense. The Objection also asserts that the Reorganized Debtors will pay any amounts due in accordance with the underlying agreements should the Reorganized Debtors become liable on the Travelers Claim.
6. The Reorganized Debtors and Travelers agree that no amounts are currently due and owing under the Bonds or the Indemnity Contract. The Reorganized Debtors and Travelers further agree that the obligations arising under Bond number 103604549 in the amount of $85,634.34 and Bond number 103604545 in the amount of $285,000.00 are unaffected by the Chapter 11 Proceedings and should remain in effect. The five remaining Bonds (103604532, 103535189, 103604544, 103792181, and 103798887), and obligations thereto, should be canceled.
7. The Reorganized Debtors and Travelers also agree that the Indemnity Contract, and the obligations and rights of the parties thereto, are unaffected by these Chapter 11 Proceedings and should be reinstated.
8. Based upon the foregoing, the Reorganized Debtors and Travelers stipulate and agree that the Travelers Claim has been adequately treated under the Plan, that no cash distributions need to be made on account of such claim, that the Travelers Claim should be withdrawn, and that the Objection should be withdrawn.
9. Accordingly, the Reorganized Debtors and Travelers stipulate to the proposed Order set forth below withdrawing the Travelers 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 ORDERED that:
1. Claim No. 1 is withdrawn, and Travelers shall receive no further distributions from the Reorganized Debtors' estates on account of such claim. Bond number 103604549 and Bond number 103604545 shall remain in effect. Additionally, the Indemnity Contract, and the obligations and rights of the parties thereto, is hereby reinstated and deemed to be unaffected by these Chapter 11 Proceedings.
2. The parties are authorized to take any steps necessary to cancel Bonds numbered 103604532, 103535189, 103604544, 103792181, and 103798887.
3. Travelers' withdrawal of the Travelers Claim will not impair or prejudice any rights or remedies it may have under Bond number 103604549, Bond number 103604545, and the Indemnity Contract should a default arise under those instruments after the Effective Date.
4. The Reorganized Debtors' Objection is withdrawn