Opinion
Case No. 02-13533 (AJG), (Jointly Administered).
August 18, 2005
Sharon L. Stolte, Esq., MO #41133, Mark A. Shaiken, Esq., Mark S. Carder, Esq., STINSON MORRISON HECKER LLP, Overland Park, KS, Attorneys for Debtors and Debtors-in-Possession.
Karen Hunsaker, HUNSAKER PALECEK PLLC, Phoenix, AZ, Attorneys for Southwest Slurryseal, Inc.
AGREED ORDER AND JOINT STIPULATION RESOLVING THE DEBTORS' OBJECTION TO SOUTHWEST SLURRYSEAL, INC.'S CLAIM NUMBER 34759
Upon consideration of the Debtors' Fiftieth 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 October 13, 2004, 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 through their undersigned counsel, Stinson Morrison Hecker LLP, together with Claimant, Southwest Slurryseal, Inc., by and through their undersigned representative, Hunsaker Palecek PLLC, hereby agree and stipulate as follows:
WHEREAS, Southwest Slurryseal, Inc. 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 "Southwest Slurryseal";
WHEREAS, on or about March 25, 2003, Southwest Slurryseal filedClaim No. 34759 against MCI, Inc., Case No. 02-13533 (AJG), as an unsecured claim in the amount of $149,795.11;
WHEREAS, the Debtors, in their Fiftieth Omnibus Objection to Mechanic's Liens related claims dated October 13, 2004, seek to disallow and expunge Claim No. 34759 on the following grounds: a) Claim has already been satisfied (hereinafter the "Contested Matter");
WHEREAS, the Debtors and Southwest Slurryseal both agree and intend that Claim No. 34759 shall be allowed as a "Class 4 General Unsecured Claim" in the amount of $30,000.00;
WHEREAS, the claim allowed may be referred to herein as the "Allowed Claim";
WHEREAS, the Allowed Claim shall be paid by Debtors to Southwest Slurryseal in accordance with the terms set forth in the Debtors' Modified Second Amended Joint Plan of Reorganization, confirmed by the United States Bankruptcy Court for the Southern District of New York on October 31, 2003 (the "Confirmed Plan");
WHEREAS, upon payment by Debtors to Southwest Slurryseal, Southwest Slurryseal shall pay any and all of its subcontractors and shall file any and all lien releases;
WHEREAS, the Debtors and Southwest Slurryseal 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 Southwest Slurryseal against Debtors including but not limited to the above noted 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 Southwest Slurryseal, the sufficiency of which is hereby acknowledged, the Debtors and Southwest Slurryseal agree to be forever bound by the following terms and conditions:
1. Upon entry of this Agreed Order and Joint Stipulation,Claim No. 34759 shall be allowed as a "Class 4 General Unsecured Claim" in the amount of $30,000.00.
2. The above Allowed Claim shall be paid by Debtors to Southwest Slurryseal in accordance with the terms set forth in the Confirmed Plan.
3. Upon payment by Debtors to Southwest Slurryseal, Southwest Slurryseal shall pay any and all of its subcontractors and shall file any and all lien releases.
4. The execution of this Agreed Order and Joint Stipulation is intended to and shall finally settle and resolve all claims that Southwest Slurryseal asserted or that Southwest Slurryseal could have asserted against Debtors, or that may have been scheduled by Debtors. Upon execution of this Agreed Order and Joint Stipulation, any other claims filed by Southwest Slurryseal in the Debtors' consolidated Chapter 11 bankruptcies shall be deemed withdrawn with prejudice to any future action.
5. Upon execution of this Agreed Order and Joint Stipulation, Southwest Slurryseal and all of Southwest Slurryseal'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, 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 Southwest Slurryseal and all of Southwest Slurryseal'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, at any time prior to and including the date that the parties execute this Agreed Order and Joint Stipulation 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, whether now known or unknown arising out of or in any way related to the facts, incidents, contracts and/or circumstances alleged asserted or otherwise part of the Contested Matter, including, but not limited to, Claim No. 34759 and any claims scheduled by Debtors; and (c) any disputes, whether now known or unknown, between Southwest Slurryseal and Debtors and related to the pre-bankruptcy obligations between and among Southwest Slurryseal and Debtors.
6. Upon execution of this Agreed Order and Joint Stipulation, Southwest Slurryseal does agree to file all lien releases in any and all jurisdictions as they do 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 Claim 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 Southwest Slurryseal. For the same consideration, Southwest Slurryseal represents that it has paid or will pay in full for all labor performed or materials or equipment furnished by, to or on behalf of Southwest Slurryseal in connection with any labor, services, materials or equipment furnished by Southwest Slurryseal in the respects set forth above, for the purpose of inducing the above referenced Agreement. Southwest Slurryseal agrees to defend, indemnify and 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 Southwest Slurryseal.
7. 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.
8. Southwest Slurryseal 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.
9. Southwest Slurryseal represents and acknowledges that in executing this Agreed Order and Joint Stipulation, Southwest Slurryseal 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.
10. Southwest Slurryseal and Debtors represent and acknowledge that they have carefully read and fully understand all of the provisions of this Agreed Order and Joint Stipulation and are voluntarily entering into this agreement.
11. Southwest Slurryseal 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 Southwest Slurryseal 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. Southwest Slurryseal 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.
12. 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 Southwest Slurryseal.
13. 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.
14. 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.
15. No amendments to this Agreed Order and Joint Stipulation shall be effective unless such amendment is in writing and signed by all parties hereto.
16. 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.
17. 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.