Opinion
Case No. 02-13533 (AJG), (Jointly Administered).
June 13, 2005
STIPULATED AGREED, STINSON MORRISON HECKER LLP, Sharon L. Stolte, Esq., MO #41133, Mark A. Shaiken, Esq., Mark S. Carder, Esq., Overland Park, KS, Attorneys for Debtors and Debtors-in-Possession.
SHEAK KORZUN, Timothy J. Korzun, Pennington, NJ, Attorneys for Scarano's Industrial Masonry Contractor.
AGREED ORDER AND JOINT STIPULATION RESOLVING THE DEBTORS' OBJECTION TO SCARANO'S INDUSTRIAL MASONRY CONTRACTOR'S CLAIM NUMBER 16746
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, Scarano's Industrial Masonry Contractor, by and through their undersigned representative, Sheak Korzun, hereby agree and stipulate as follows:
WHEREAS, Scarano's Industrial Masonry Contractor 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 "Scarano's";
WHEREAS, on or about January 21, 2003, Scarano's filed Claim No. 16746 against MCI WorldCom Communications, Inc., Case No. 02-42223 (AJG), as an unsecured claim in the amount of $156,230.90;
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. 16746 on the following grounds: a) Claim failed to provide adequate documentation to support the claim; b) Claim has already been satisfied; and c) Debtor disputes amount asserted in claim; (hereinafter the "Contested Matter");
WHEREAS, the Debtors and Scarano's both agree and intend thatClaim No. 16746 shall be allowed as a "Class 6 General Unsecured Claim" in the amount of $52,730.90;
WHEREAS, the claim allowed may be referred to herein as the "Allowed Claim";
WHEREAS, the Allowed Claim shall be paid by Debtors to Scarano's 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 Scarano's, Scarano's shall pay any and all of its subcontractors and shall file any and all lien releases;
WHEREAS, the Debtors and Scarano's 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 Scarano's 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 Scarano's, the sufficiency of which is hereby acknowledged, the Debtors and Scarano's agree to be forever bound by the following terms and conditions:
1. Upon entry of this Agreed Order and Joint Stipulation,Claim No. 16746 shall be allowed as a "Class 6 General Unsecured Claim" in the amount of $52,730.90.
2. The above Allowed Claim shall be paid by Debtors to Scarano's in accordance with the terms set forth in the Confirmed Plan.
3. Upon payment by Debtors to Scarano's, Scarano's 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 Scarano's asserted or that Scarano's 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 Scranano's 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, Scarano's and all of Scarano'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 Scarano's and all of Scarano'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. 16746 and any claims scheduled by Debtors; and (c) any disputes, whether now known or unknown, between Scarano's and Debtors and related to the pre-bankruptcy obligations between and among Scarano's and Debtors.
6. Upon execution of this Agreed Order and Joint Stipulation, Scarano's 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 Scarano's. For the same consideration, Scarano's 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 Scarano's in connection with any labor, services, materials or equipment furnished by Scarano's in the respects set forth above, for the purpose of inducing the above referenced Agreement. Scarano's 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 Scarano's.
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. Scarano's 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. Scarano's represents and acknowledges that in executing this Agreed Order and Joint Stipulation, Scarano's 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. Scarano's 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. Scarano's 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 Scarano's 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. Scarano's 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 Scarano's.
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.