United States Bankruptcy Court Southern District of New York

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: INNKEEPERS USA TRUST, et al.,1 Debtors.
) ) ) ) ) ) ) Chapter 11 Case No. 10-13800 (SCC) Jointly Administered
STIPULATION AND AGREED ORDER RESOLVING MOTION OF KEITH JEFFRIES TO LIFT THE STAY 1 Innkeepers USA Trust and certain of its affiliates as debtors and debtors in possession (collectively, the Debtors) and Keith Jeffries (the Movant, and together with the Debtors, the Parties), through their undersigned counsel, hereby enter into this stipulation and agreed order (the Stipulation and Order). WHEREAS, on July 19, 2010 (the Petition Date), the Debtors commenced these voluntary cases under title 11 of the United States Code (the Bankruptcy Code) and are continuing to operate their business and manage their properties as debtors in possession pursuant to sections 1107 and 1108 of the Bankruptcy Code; WHEREAS, on September 15, 2010, the Movant commenced a lawsuit in the County Court at Law No. 1 in Tarrant County, Texas (the Prepetition Litigation) alleging personal injury and seeking money damages against defendant Debtor Grand Prix Arlington, LLC (Grand Prix Arlington), in connection with alleged personal injuries arising out of an alleged accident occurring on January 9, 2009;
1
The list of Debtors in these Chapter 11 Cases along with the last four digits of each Debtors federal tax identification number can be found by visiting the Debtors restructuring website at www.omnimgt.com/innkeepers or by contacting Omni Management Group, LLC at Innkeepers USA Trust c/o Omni Management Group, LLC, 16161 Ventura Boulevard, Suite C, PMB 606, Encino, California 91436. The location of the Debtors corporate headquarters and the service address for their affiliates is: c/o Innkeepers USA, 340 Royal Poinciana Way, Suite 306, Palm Beach, Florida 33480.
K&E 18648172
WHEREAS, upon the filing of the Debtors chapter 11 petitions, the automatic stay of section 362 of the Bankruptcy Code came into effect and stayed certain actions against the Debtors; WHEREAS, on March 12, 2011, the Movant filed the Motion to Condition Automatic Stay [Docket No. 1011] (the Lift Stay Motion); WHEREAS, the Movant believes that he may be entitled to recover on account of certain claims asserted in the Prepetition Litigation against third-party insurance policies to which Grand Prix Arlington is an insured party; and WHEREAS, the Debtors and the Movant wish to resolve the Lift Stay Motion on the terms set forth herein. NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and between the Debtors and the Movant, which agreement, when so-ordered by the Court, shall constitute an order of the Court, as follows: 1. The automatic stay shall be modified solely for the limited purpose of permitting
the Movant to proceed against Grand Prix Arlington in the Prepetition Litigation as a nominal defendant only, at no cost to the Debtors, their estates, or their successors, so that the Movant may seek to establish liability against Grand Prix Arlington for the sole purpose of recovering against proceeds of applicable insurance policies, if any (the Insurance Policies). 2. Any recoveries based upon any judgment, settlement, mediation, arbitration, or
otherwise on account of the Movants claims against the Debtors, including relating to the Prepetition Litigation, shall be solely from the proceeds of the Insurance Policies and not against the Debtors, their estates, or their successors.
2
K&E 18648172
3.
The Debtors make no representation as to the existence or availability of any
insurance coverage or insurance policies, the amount of coverage, or the likelihood of recovery against any such insurance policies, if any. 4. Any and all proofs of claim filed by the Movant in these chapter 11 cases relating
to the Prepetition Litigation are disallowed and expunged for all purposes, and the Movant shall not be entitled to receive any distributions from any of the Debtors, their estates, or their successors in their chapter 11 cases under a plan of reorganization or otherwise on behalf of such claims. 5. The Movant shall not have an allowed claim (as defined in section 101(5) of the
Bankruptcy Code) pursuant to section 502 of the Bankruptcy Code based upon the Prepetition Litigation (or the claims asserted therein) against any of the Debtors and shall not be entitled to any distributions from any of Debtors, their estates, or their successors, whether under a chapter 11 plan or otherwise on behalf of such claim; provided that to the extent the Insurance Policies are unable to satisfy a judgment or other disposition with respect to the Prepetition Litigation, the Movant agrees that any such unsatisfied portion, which could otherwise be considered a general unsecured claim in the Debtors chapter 11 cases, is hereby fully and finally waived and forever released and the Movant shall not otherwise engage in any efforts to collect any amount from the Debtors, their estates, or their successors based upon the Prepetition Litigation (or the claims asserted therein). 6. The Lift Stay Motion shall be deemed withdrawn with prejudice immediately
upon the Court entering the Stipulation and Order without further action of the Parties.
3
K&E 18648172
7.
The Movant shall file this Stipulation and Order in the court in which the
Prepetition Litigation is pending within 10 business days after the entry of this Stipulation and Order. 8. Under no circumstance shall the Debtors, their estates, or their successors be
required to pay or otherwise satisfy: (a) any self-insured retention or deductible liability; (b) any obligation to post any security or deposit with an insurer pursuant to the terms of any insurance policy; (c) any defense costs; or (d) any judgment above the applicable insurance coverage (collectively, the Administrative Costs). 9. To the extent required by an insurer, the Movant shall have the option of funding
any Administrative Costs. If, however, the Movant is unwilling or unable to fund any such Administrative Costs, the Movant shall immediately abandon pursuit of any Insurance Policy and all of the Movants claims against the Debtors will be forever released and waived. 10. The Movant will indemnify and hold the Debtors, their estates, and their
successors harmless against any requirement by or claim of any insurer for the payment by the Debtors, their estates, or their successors of any Administrative Costs. 11. This Stipulation and Order shall not become effective unless and until it is
approved and entered by the Court. 12. By entering into this Stipulation and Order, the Debtors are not waiving any
defenses at law or in equity, including as to the Prepetition Litigation. 13. Neither the Stipulation and Order nor any negotiations and writings in connection
with this Stipulation and Order shall in any way be construed as or deemed to be evidence of or an admission on behalf of any Party regarding any claim or right that such Party may have against the other Party.
4
K&E 18648172
14.
This Stipulation and Order shall be binding on and inure to the benefit of the
Parties hereto and their respective successors and assigns. 15. This Stipulation and Order shall not be modified, altered, amended, or vacated
without written consent of all Parties hereto. Any such modification, alteration, amendment, or vacation, in whole or in part, shall be subject to the approval of the Court. 16. This Stipulation and Order contains the entire agreement by and between the
Debtors and the Movant with respect to the subject matter hereof, and all prior understandings or agreements, if any, are merged into this Stipulation and Order. 17. Each of the undersigned counsel represents that he or she is authorized to execute
this Stipulation and Order on behalf of his or her respective client. 18. This Stipulation and Order may be executed in multiple counterparts, any of
which may be transmitted by facsimile or electronic mail, and each of which shall be deemed an original, but all of which together shall constitute one instrument. 19. The Debtors are authorized to take all actions necessary to effectuate the relief
provided by this Stipulation and Order. 20. The terms and conditions of this Stipulation and Order shall be immediately
effective and enforceable upon its entry. 21. The Court retains jurisdiction to hear and determine all matters arising from or
related to the implementation, interpretation, and/or enforcement of this Stipulation and Order.
5
K&E 18648172
Dated: April 22, 2011 New York, New York
/s/ William E. Gene Sollows William E. Gene Sollows Texas Bar No. 00785014 BAILEY & GALYEN 18333 Egret Bay Blvd., Suite 444 Houston, TX 77058 (281) 335-7744 (281) 335-5871 fax Attorney for Keith Jeffries
/s/ Brian S. Lennon James H.M. Sprayregen, P.C. Paul M. Basta Stephen E. Hessler Brian S. Lennon KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, New York 10022-4611 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 and Anup Sathy, P.C. Marc J. Carmel (admitted pro hac vice) KIRKLAND & ELLIS LLP 300 North LaSalle Chicago, Illinois 60654-3406 Telephone: (312) 862-2000 Facsimile: (312) 862-2200 Counsel to the Debtors and Debtors in Possession
SO ORDERED this 28th day of April, 2011 /s/ Shelley C. Chapman The Honorable Shelley C. Chapman United States Bankruptcy Judge
K&E 18648172

United States Bankruptcy Court Southern District of New York

Uploaded by

Copyright:

Available Formats

United States Bankruptcy Court Southern District of New York

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

United States Bankruptcy Court Southern District of New York

Uploaded by

Copyright:

Available Formats

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: INNKEEPERS USA TRUST, et al.,1 Debtors.

) ) ) ) ) ) ) Chapter 11 Case No. 10-13800 (SCC) Jointly Administered

The Debtors make no representation as to the existence or availability of any

Dated: April 22, 2011 New York, New York

You might also like

Pfad - The Proxy pFad of © 2024 Garber Painting. All rights reserved.