10-13800-scc

Doc 2279

Filed 01/30/12 Entered 01/30/12 14:56:08 Pg 1 of 6

Main Document

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 THE MOTION OF RICHARD SULLIVAN TO MODIFY THE AUTOMATIC STAY 1 Innkeepers USA Trust and certain of its affiliates as debtors and debtors in possession (collectively and as reorganized, the Debtors) and Richard Sullivan (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, Movant alleges that he suffered injuries on January 17, 2010 while a guest at one of the Debtors former properties (the Alleged Accident) for which Debtors Innkeepers USA Trust, Grand Prix Montvale LLC, or both (the Montvale Debtors) may be liable; 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); 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;

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 21277274

10-13800-scc

Doc 2279

Filed 01/30/12 Entered 01/30/12 14:56:08 Pg 2 of 6

Main Document

WHEREAS, Movant believes that he may be entitled to recover on account of certain claims arising out of the Alleged Accident against third-party insurance policies to which the Montvale Debtors may be insured parties; and WHEREAS, the Debtors and Movant wish to modify the automatic stay on the terms set forth herein. NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and between the Debtors and 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

Movant to proceed against the Montvale Debtors as nominal defendants only, at no cost to the Debtors, their estates, or their successors, so that Movant may seek to establish liability 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 Movants potential claims against the Debtors, including relating to the Alleged Accident, shall be solely from the proceeds of the Insurance Policies and not against the Debtors, their estates, or their successors. 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 Movant in these chapter 11 cases relating to

the Alleged Accident are disallowed and expunged for all purposes, and Movant shall not be

2
K&E 21277274

10-13800-scc

Doc 2279

Filed 01/30/12 Entered 01/30/12 14:56:08 Pg 3 of 6

Main Document

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. 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 Alleged Accident (or the claims asserted therein) against any of the Debtors or their successors 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 Alleged Accident, Movant agrees that any such unsatisfied portion, which might otherwise be considered a general unsecured claim in the Debtors chapter 11 cases, is hereby fully and finally waived and forever released and Movant shall not otherwise engage in any efforts to collect any amount from the Debtors, their estates, or their successors based upon the Alleged Accident (or the claims asserted therein). 6. Under no circumstances 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; (d) any judgment above the applicable insurance coverage; or (e) any other costs of any kind, including, without limitation, any claims by insurance companies against the Debtors, their estates, or their successors related to the Prepetition Litigation, or the claims subject thereof (collectively, the Administrative Costs). 7. To the extent any Administrative Costs are required by an insurer, Movant shall

fund any such Administrative Costs. If, however, Movant is unwilling or unable to fund any such Administrative Costs, Movant shall immediately abandon pursuit of recoveries from any

3
K&E 21277274

10-13800-scc

Doc 2279

Filed 01/30/12 Entered 01/30/12 14:56:08 Pg 4 of 6

Main Document

Insurance Policy and all of Movants claims against the Debtors will be forever released and waived. 8. 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. 9. This Stipulation shall not become effective unless and until it is approved and

entered by the Court. 10. By entering into this Stipulation, the Debtors are not waiving any defenses at law

or in equity, including as to the Alleged Accident. 11. Neither the Stipulation nor any negotiations and writings in connection with this

Stipulation 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. 12. This Stipulation shall be binding on and inure to the benefit of the Parties hereto

and their respective successors and assigns. 13. This Stipulation 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. 14. This Stipulation contains the entire agreement by and between the Debtors and

Movant with respect to the subject matter hereof, and all prior understandings or agreements, if any, are merged into this Stipulation. 15. Each of the undersigned counsel represents that he or she is authorized to execute

this Stipulation on behalf of his or her respective client.

4
K&E 21277274

10-13800-scc

Doc 2279

Filed 01/30/12 Entered 01/30/12 14:56:08 Pg 5 of 6

Main Document

16.

This Stipulation 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. 17. The Debtors are authorized to take all actions necessary to effectuate the relief

provided by this Stipulation. 18. The terms and conditions of this Stipulation shall be immediately effective and

enforceable upon its entry. 19. The Court retains jurisdiction to hear and determine all matters arising from or

related to the implementation, interpretation, and/or enforcement of this Stipulation.

IT IS SO ORDERED: January 30, 2012 New York, New York /s/ Shelley C. Chapman HONORABLE SHELLEY C. CHAPMAN UNITED STATES BANKRUPTCY JUDGE

5
K&E 21277274

10-13800-scc

Doc 2279

Filed 01/30/12 Entered 01/30/12 14:56:08 Pg 6 of 6

Main Document

Dated: January 27, 2012 New York, New York

/s/ George J. Cotz George J. Cotz 0463 180 Franklin Turnpike Mahwah, NJ 07430 (201) 327-0900 Attorney for Richard Sullivan

/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. KIRKLAND & ELLIS LLP 300 North LaSalle Street Chicago, Illinois 60654-3406 Telephone: (312) 862-2000 Facsimile: (312) 862-2200 Counsel to the Debtors and Debtors in Possession

K&E 21277274