JEFF BOHM, Bankruptcy Judge
Encompass Services Corporation and its subsidiaries (the "Debtors") and Turner Envirologic, Inc. (the "Claimant" and together with the Debtors, the "Parties") stipulate and agree as follows:
I. RECITALS
1. WHEREAS, on November 19, 2002, the Debtors filed their voluntary petitions for relief under Chapter 11 of the United States Bankruptcy Code.
2. WHEREAS, on May 28, 2003, this Court entered an order confirming the Immaterially Modified Second Amended Joint Plan of Reorganization of Encompass Services Corporation and its Affiliated Debtors Under Chapter 11 of the Bankruptcy Code and supplemented by the Plan Supplement, the First Amended Plan Supplement, and the Second Amended Plan Supplement (collectively, the "Plan"). On June 9, 2003 (the "Effective Date"), the Plan became effective.
3. WHEREAS, as of the Effective Date, and pursuant to Article 5.3 of the Plan, the Debtors assert that each of Debtor's assets and liabilities were merged with and pooled with the assets and liabilities of each of the other Debtors, and each and every Claim filed or to be filed in the Chapter 11 case of any of the Debtors is deemed filed against the consolidated Debtors and is deemed one Claim against, and obligations of, the consolidated Debtors.
4. WHEREAS, on April 14, 3003, the Claimant filed proof of claim no. 2786 in case no. 02-43582 ("Claim No. 2786") alleging a general unsecured claim in the amount of $3,566,216.56. The asserted underlying liability for Claim No. 2786 concerns alleged contracts whereby the Debtors allegedly contracted with the Claimant for the design and manufacture of certain equipment.
5. WHEREAS, on May 16, 3003, the Claimant filed proof of claim no. 4524 in case no. 02-43582 ("Claim No. 4524") amending Claim No. 2786 and alleging a secured claim in the amount of $1,680,979.66. The alleged underlying liability for Claim No. 4524 is identical to that alleged in Claim No. 2786.
6. WHEREAS, on February 24, 2004, the Disbursing Agent filed its Objection to Proofs of Claim Nos. 2786 and 4524 Filed by Turner Envirologic, Inc. (Docket No. 3963) (the "Objection").
7. WHEREAS, on March 12, 2004, the Claimant filed its Response to the Objection (Docket No. 4165).
II. AGREEMENT
NOW THEREFORE, THE PARTIES HERETO STIPULATE AND AGREE AS FOLLOWS:
1. That, in full and final settlement of the disputes and claims existing among the Parties hereto, the Debtors hereby agree to pay to the Claimant the amount of $10,800.00 (the "Storage Fee Payment"), to be paid no later than ten (10) business days after the Court's execution and entry of this Stipulation and Agreed Order.
2. That the Debtors hereby abandon all claim to and interest in any and all equipment listed on the attached Exhibit A.
3. That the Claimant hereby withdraws Claim No. 2786.
4. That the Claimant hereby withdraws Claim No. 4524.
5. That the Claimant does not have and may not assert any surviving claim against the Debtors in these bankruptcy cases.
6. That, except for the agreement regarding the Storage Fee Payment as set forth in paragraph 1 of the Agreement above, the Claimant and the Debtors, for themselves and on behalf of each of the respective affiliates, hereby RELEASE, ACQUIT, and FOREVER DISCHARGE each other from any and all claims, demands, and causes of action of any nature whatsoever, whether arising under any contract or in tort, which in any way related to any of the acts, events, dealings or transactions, and agree that this Stipulation releases any and all claims, demands, and causes of action of any nature whatsoever that they may have, whether or not asserted at the time of the execution of this Stipulation, for any injuries or damages of any kind whatsoever, whether known or unknown that occurred as a result of or are in any way related to any course of dealings between the Claimant, the Debtors or any of their respective affiliates, or any of the acts, events, dealings, or transactions. The release provided in this paragraph shall not apply, however, to the Parties' rights and obligations under this Stipulation, or to any third party not a Debtor in the above-captioned bankruptcy case. Each Party hereto further acknowledges and agrees that it may hereafter discover claims or facts in addition to or different from those now known or believe to be true with respect to the matters described and released herein. Nevertheless, it is each Party's intention fully, finally, and forever to release each other from all claims relative to such matters, which now exist or which may exist in the future, other than as stated in this paragraph. In furtherance of such intention, this Stipulation shall remain in effect as a full and complete release of all such claims, other than as stated in this paragraph.
7. Each Party hereto covenants and agrees not to bring, file, charge, claim, sue, cause, assist, or permit to be brought, filed, charged or claimed any action, cause of action, or proceeding based upon any of the claims released under this Stipulation, and further covenants and agrees that this Stipulation is, will constitute and may be pleaded as, a bar to any such claim, action, cause of action or proceeding, other than as provided in paragraph 4 of this Stipulation.
8. Each Party hereto represents and warrants:
a. Such Party has all requisite power and authority to enter into this Stipulation. The execution, delivery, and performance of this Stipulation has been duly and validly authorized by all necessary action on the part of such Party, including without limitation obtaining all necessary consents or waivers. This Stipulation constitutes a valid and binding obligation of such party, enforceable in accordance with its terms.
b. The execution, delivery, and performance of this Stipulation will not conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which such Party is a party or by which it is bound.
9. That this Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof and may not be modified or amended except by a writing executed by or on behalf of the Parties.
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10. That the Debtors expressly reserve the right to object to any Claim not subject to this Stipulation.
IT IS HEREBY ORDERED that this Stipulation and Agreed Order is approved.
EXHIBIT "A"
All personal property, work-in-process, and parts, presently in possession or control of Turner Envirologic, Inc., or its subcontractors, purchased, created, or otherwise intended or acquired for use under Purchase Order No. 11940-14 dated May 31, 2001, from EDG Power Group, Inc. to Turner Envirologic, Inc., wherever located, including but not limited to the following:
• Cooling System
• Silencer
• CO Catalyst Section
• Ammonia Injection Grid
• Distributor
• Transitions
• NOx Catalyst and Housing
• Insulation
• Control Panel
• Skid
• Stack
• Platform
• Ladder
• Expansion Joints
• VFD's
• Purge Blowers
• Ammonia Skid and Piping
• Bolts, Nuts, and Gaskets