Case JKO Doc 9147 Filed 05/01/13 Page 1 of 17

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1 Case JKO Doc 9147 Filed 05/01/13 Page 1 of 17 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF FLORIDA FORT LAUDERDALE DIVISION In re: ) Chapter 11 Cases ) Case No JKO TOUSA, INC., et al., ) Jointly Administered ) Debtors. ) ) DEBTORS EX PARTE MOTION FOR AN ORDER APPROVING STIPULATION WITH RESPECT TO PROOF OF CLAIM #2745 TOUSA, Inc. and its affiliated debtors and debtors in possession in the above-captioned, jointly administered chapter 11 cases (collectively, the Debtors ) seek entry of an order, substantially in the form annexed hereto as Exhibit A, approving the stipulation (the Stipulation ) 1 by and among the Debtors and American Cement Corporation ( American Cement, and together with the Debtors, the Parties ), in its capacity as assignee of proof of claim #2745 filed by Aspen Block LLC ( Aspen Block ). In support of this motion, the Debtors respectfully state as follows: Jurisdiction 1. The Court has jurisdiction over this matter pursuant to 28 U.S.C. 157 and This matter is a core proceeding within the meaning of 28 U.S.C. 157(b)(2). 2. Venue in this Court is proper pursuant to 28 U.S.C and The bases for the relief requested herein are section 363(b) of title 11 of the United States Code (the Bankruptcy Code ) and Rule (C)(1) of the Local Rules of the United States Bankruptcy Court for the Southern District of Florida (the Local Rules ). 1 A copy of the Stipulation is annexed as Exhibit 1 to Exhibit A attached hereto.

2 Case JKO Doc 9147 Filed 05/01/13 Page 2 of 17 Relief Requested 4. By this motion, the Debtors request entry of an order approving the Stipulation. Basis for Relief 5. On January 29, 2008 (the Petition Date ), each of the Debtors filed a voluntary petition for relief under chapter 11 of title 11 of the United States Code (the Bankruptcy Code ) in the United States Bankruptcy Court for the Southern District of Florida, Fort Lauderdale Division (the Chapter 11 Cases ). Pursuant to the Order Directing Joint Administration of Related Chapter 11 Cases, dated January 29, 2008 [ECF No. 6], the Debtors Chapter 11 Cases have been consolidated for procedural purposes only and are being jointly administered under Case No (JKO). 6. On March 17, 2008, the Court entered an order establishing, among other things, May 19, 2008, as the deadline for each person or entity asserting a claim against any of the Debtors to file a proof of claim against the specific Debtor as to which the claim is asserted [ECF No. 614]. 7. On May 16, 2008, Aspen Block filed proofs of claim numbers 2745 ( Claim 2745 ) and 3890 ( Claim 3890 ) against Engle Homes Residential Construction L.L.C. ( Engle Homes ), each in the amount of $1,317, on account of allegedly unpaid prepetition invoices for services that Aspen Block provided to the Engle Homes with respect to the Tuscano and Rancho Cabrillo parcels of land in Arizona. 8. On February 18, 2009, the Court entered an order approving certain procedures to govern objections to, and the settlement of, claims filed in these Chapter 11 Cases. 9. On February 17, 2010, the Debtors filed the First Omnibus Objection to Certain Proofs of Claims [ECF No. 5091] (the First Omnibus Objection ), pursuant to which the 2

3 Case JKO Doc 9147 Filed 05/01/13 Page 3 of 17 Debtors sought entry of an order disallowing and expunging, among other claims, Claim 3890 on the basis that it was duplicative of Claim On March 9, 2010, Aspen Block transferred Claim 2745 to American Cement [ECF No. 2599]. 11. On April 27, 2010, the Court entered the First Supplemental Order Granting Debtors First Omnibus Objection to Claims [ECF No. 5461], which order, among others things, disallowed and expunged Claim 3890 as duplicative of Claim On June 28, 2010, the Debtors filed a motion (the Sale Motion ) seeking entry of an order authorizing and approving the sale of certain assets (the Sale ), including the Rancho Cabrillo subdivisions, in accordance with the terms of the Agreement of Purchase and Sale, dated as of March 4, 2010, by and among certain of the Debtors (the Sellers ) and Paulson RERF Acquisition Corp. ( Paulson ). 13. On August 31, 2010, the Court entered an order approving the Sale Motion [ECF No. 6058] (the Sale Order ). 14. The Sale Order provided, among other things, that any liens on the property sold as part of the Sale would attach to the net proceeds of the Sale in order of their priority and with the same validity as before the Sale. 15. On September 23, 2010, the Sellers and Paulson consummated the Sale. 16. Aspen Block asserts that Claim 2745 is secured by liens filed on certain properties owned by Engle Homes, including parcels of land in the Rancho Cabrillo subdivision, which were sold to Paulson as part of the Sale Order. 17. The Parties have engaged in negotiations with respect to Claim 2745 in an effort to avoid the risks, uncertainties and expense of litigation. These negotiations culminated in the 3

4 Case JKO Doc 9147 Filed 05/01/13 Page 4 of 17 Stipulation. Pursuant to the Stipulation, the Parties agree that, among other things, (a) Claim 2745 is partially allowed (i) as a secured claim against TOUSA Homes, Inc. in the amount of $105, (the Secured Claim ), which Secured Claim shall be satisfied in full from the proceeds of the Sale within 10 business days after Court approval of the Stipulation; (ii) as a general unsecured claim against TOUSA Homes, Inc. in the amount of $779, to be paid, if at all, in accordance with the terms of any plan of liquidation to be confirmed by the Court; and (iii) as a general unsecured claim against Engle Homes in the amount of $170, to be paid, if at all, in accordance with the terms of any plan of liquidation to be confirmed by the Court and (b) the Parties jointly and finally release and discharge one another as set forth in the Stipulation. Local Rule (C)(1) Certification 18. Local Rule (C)(1) provides that a party may file a motion seeking relief from the bankruptcy court on an ex parte basis if the movant certifies that all affected parties have consented to the relief requested. LOCAL R (C)(1). In accordance with Local Rule (C)(1), the Debtors certify that the Parties have consented to the relief sought herein. Notice 19. The Debtors have provided notice of this motion to: (a) the Office of the United States Trustee for the Southern District of Florida; (b) counsel to the official committee of unsecured creditors appointed in these Chapter 11 Cases; (c) counsel to the agent for the Debtors prepetition first lien facilities; (d) counsel to the agent for the Debtors prepetition second lien facility; (e) counsel to the ad hoc group of lenders, assignees or participants with respect to the Debtors prepetition second lien facility; (f) the Internal Revenue Service; (g) the Securities and Exchange Commission; (h) the indenture trustee for each of the Debtors outstanding bond issuances; (i) Aspen Block; (j) American Cement; and (k) all parties who have filed notices of appearance and requests for pleadings in these chapter 11 cases. In light of the 4

5 Case JKO Doc 9147 Filed 05/01/13 Page 5 of 17 nature of the relief requested, the Debtors respectfully submit that no further notice is necessary. WHEREFORE, for the reasons set forth herein, the Debtors respectfully request that the Court enter an order, substantially in the form annexed hereto as Exhibit A, (a) approving the Stipulation and (b) granting such other relief as the Court deems appropriate. 5

6 Case JKO Doc 9147 Filed 05/01/13 Page 6 of 17 I HEREBY CERTIFY that I am admitted to the Bar of the United States District Court for the Southern District of Florida, and I am in compliance with the additional qualifications to practice in this Court as set forth in Local Rule Dated: May 1, 2013 Respectfully submitted, BERGER SINGERMAN LLP /s/ Paul Steven Singerman Paul Steven Singerman (Florida Bar No ) 1450 Brickell Avenue, Suite 1900 Miami, FL Telephone: (305) Facsimile: (305) and- KIRKLAND & ELLIS LLP Richard M. Cieri (New York Bar No ) Joshua A. Sussberg (New York Bar No ) 601 Lexington Avenue New York, NY Telephone: (212) Facsimile: (212) Co-Counsel to the Debtors

7 Case JKO Doc 9147 Filed 05/01/13 Page 7 of 17 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF FLORIDA FORT LAUDERDALE DIVISION In re: ) Chapter 11 Cases ) Case No JKO TOUSA, INC., et al., ) Jointly Administered ) Debtors. ) ) ORDER GRATING DEBTORS EX PARTE MOTION FOR AN ORDER APPROVING STIPULATION WITH RESPECT TO PROOF OF CLAIM #2745 Upon consideration of the Debtors Ex Parte Motion for an Order Approving Stipulation with Respect to Claim #2745 [ECF No. ] (the Motion ) 1 of TOUSA, Inc. and its affiliated debtors and debtors in possession in the above-captioned, jointly administered chapter 11 cases (collectively, the Debtors ) requesting entry of an order approving the stipulation with respect to proof of claim #2745 (the Stipulation, a copy of which is attached hereto as Exhibit 1); and it appearing that the relief requested in the Motion is in the best interests of the Debtors estates, their creditors and all other parties in interest; and the Court having jurisdiction to consider the Motion and the relief requested therein pursuant to 28 U.S.C. 157 and 1334; and 1 Capitalized terms used herein but not otherwise defined have the meaning ascribed to them in the Motion.

8 Case JKO Doc 9147 Filed 05/01/13 Page 8 of 17 consideration of the Motion and the relief requested therein being a core proceeding pursuant to 28 U.S.C. 157(b); and venue being proper in this Court pursuant to 28 U.S.C and 1409; and due and proper notice of the Motion having been provided, and it appearing that no other or further notice need be provided; and the parties having certified, in accordance with Rule (C)(1) of the Local Rules, that all parties affected by the relief requested in the Motion have consented to such relief; and after due deliberation and sufficient cause appearing therefor, it is ORDERED that: 1. The relief requested in the Motion is granted. 2. The Stipulation is approved and incorporated herein. 3. This Order shall be effective immediately upon entry 4. The Court retains jurisdiction with respect to all matters arising from or related to the implementation of this Order. 2

9 Case JKO Doc 9147 Filed 05/01/13 Page 9 of 17 Submitted by: BERGER SINGERMAN LLP Paul Steven Singerman (Florida Bar No ) 1450 Brickell Avenue, Suite 1900 Miami, FL Telephone: (305) Facsimile: (305) and- KIRKLAND & ELLIS LLP Richard M. Cieri (New York Bar No ) Joshua A. Sussberg (New York Bar No ) 601 Lexington Avenue New York, NY Telephone: (212) Facsimile: (212) Co-Counsel to the Debtors Copies to: Paul Steven Singerman (Attorney Singerman shall upon receipt serve a copy of this Order upon all interested parties and file a certificate of service.)

10 Case JKO Doc 9147 Filed 05/01/13 Page 10 of 17 Exhibit 1 The Stipulation

11 Case JKO Doc 9147 Filed 05/01/13 Page 11 of 17 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF FLORIDA FORT LAUDERDALE DIVISION In re: ) Chapter 11 Cases ) Case No JKO TOUSA, INC., et al., ) Jointly Administered ) Debtors. ) ) STIPULATION WITH RESPECT TO PROOF OF CLAIM #2745 This stipulation (the Stipulation ) is made and agreed by and among TOUSA, Inc. and its affiliated debtors and debtors in possession in the above-captioned, jointly administered chapter 11 cases (collectively, the Debtors ) and American Cement Corporation ( American Cement ), in its capacity as assignee of proof of claim #2745 filed by Aspen Block LLC ( Aspen Block ). The Debtors and American Cement are referred to herein as the Parties. The Parties stipulate and agree as follows: WHEREAS: RECITALS A. On January 29, 2008 (the Petition Date ), each of the Debtors filed a voluntary petition for relief under chapter 11 of title 11 of the United States Code (the Bankruptcy Code ) in the United States Bankruptcy Court for the Southern District of Florida, Fort Lauderdale Division (the Chapter 11 Cases ). Pursuant to the Order Directing Joint Administration of Related Chapter 11 Cases, dated January 29, 2008 [ECF No. 6], the Debtors Chapter 11 Cases have been consolidated for procedural purposes only and are being jointly administered under Case No (JKO).

12 Case JKO Doc 9147 Filed 05/01/13 Page 12 of 17 B. On March 17, 2008, the Court entered an order establishing, among other things, May 19, 2008, as the deadline for each person or entity asserting a claim against any of the Debtors to file a proof of claim against the specific Debtor as to which the claim is asserted [ECF No. 614]. C. On May 16, 2008, Aspen Block filed proofs of claim numbers 2745 ( Claim 2745 ) and 3890 ( Claim 3890 ) against Engle Homes Residential Construction L.L.C. ( Engle Homes ), each in the amount of $1,317, on account of allegedly unpaid prepetition invoices for services that Aspen Block provided to the Engle Homes with respect to the Tuscano and Rancho Cabrillo parcels of land in Arizona. D. On February 18, 2009, the Court entered an order approving certain procedures to govern objections to, and the settlement of, claims filed in these Chapter 11 Cases. E. On February 17, 2010, the Debtors filed the First Omnibus Objection to Certain Proofs of Claims [ECF No. 5091] (the First Omnibus Objection ), pursuant to which the Debtors sought entry of an order disallowing and expunging, among other claims, Claim 3890 on the basis that it was duplicative of Claim F. On March 9, 2010, Aspen Block transferred Claim 2745 to American Cement [ECF No. 2599]. G. On April 27, 2010, the Court entered the First Supplemental Order Granting Debtors First Omnibus Objection to Claims [ECF No. 5461], which order, among others things, disallowed and expunged Claim 3890 as duplicative of Claim H. On June 28, 2010, the Debtors filed a motion (the Sale Motion ) seeking entry of an order authorizing and approving the sale of certain assets (the Sale ), including the Rancho Cabrillo subdivisions, in accordance with the terms of the Agreement of Purchase and Sale, 2

13 Case JKO Doc 9147 Filed 05/01/13 Page 13 of 17 dated as of March 4, 2010, by and among certain of the Debtors (the Sellers ) and Paulson RERF Acquisition Corp. ( Paulson ). I. On August 31, 2010, the Court entered an order approving the Sale Motion [ECF No. 6058] (the Sale Order ). J. The Sale Order provided, among other things, that any liens on the property sold as part of the Sale would attach to the net proceeds of the Sale in order of their priority and with the same validity as before the Sale. K. On September 23, 2010, the Sellers and Paulson consummated the Sale. L. Aspen Block asserts that Claim 2745 is secured by liens filed on certain properties owned by Engle Homes, including parcels of land in the Rancho Cabrillo subdivision, which were sold to Paulson as part of the Sale Order. M. The Parties have engaged in negotiations with respect to Claim 2745 in an effort to avoid the risks, uncertainties and expense of litigation. NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated into this Stipulation, and the covenants and conditions contained herein, the Parties hereby stipulate and agree as follows: 1. Claim 2745 is partially allowed (i) as a secured claim against TOUSA Homes, Inc. in the amount of $105, (the Secured Claim ), which Secured Claim shall be satisfied in full from the proceeds of the Sale within 10 business days after Court approval of this Stipulation; (ii) as a general unsecured claim against TOUSA Homes, Inc. in the amount of $779, to be paid, if at all, in accordance with the terms of any plan of liquidation to be confirmed by the Court; and (iii) as a general unsecured claim against Engle Homes in the 3

14 Case JKO Doc 9147 Filed 05/01/13 Page 14 of 17 amount of $170, to be paid, if at all, in accordance with the terms of any plan of liquidation to be confirmed by the Court. 2. American Cement hereby finally and forever releases and discharges the Debtors, their chapter 11 estate, and the Debtors current and former affiliates and subsidiaries, and each of their respective current and former shareholders, officers, directors, principals, employees, agents, financial advisors, attorneys, accountants, investment bankers, consultants, representatives and other professionals (collectively, the Debtor Parties ) from any and all claims, demands, actions, causes and rights of action, lawsuits, debts, sums of money, accounts, covenants, contracts, controversies, agreements, obligations, promises, trespasses, damages, judgments, executions, losses and liabilities of any kind or nature whatsoever, whether at law, in equity or otherwise, whether known or unknown, contingent or absolute, suspected or unsuspected, disclosed or undisclosed, hidden or concealed, disputed or undisputed, liquidated or unliquidated, matured or unmatured, and whether or not accrued, and whether or not asserted or assertable in law, equity or otherwise, for, upon, or by reason of any act, omission or other matter, cause, or thing whatsoever, which American Cement ever had or may have had, except for the rights set forth herein. 3. The Debtors hereby finally and forever release and discharge American Cement, from any and all claims, demands, actions, causes and rights of action, lawsuits, debts, sums of money, accounts, covenants, contracts, controversies, agreements, obligations, promises, trespasses, damages, judgments, executions, losses and liabilities of any kind or nature whatsoever, whether at law, in equity or otherwise, whether known or unknown, contingent or absolute, suspected or unsuspected, disclosed or undisclosed, hidden or concealed, disputed or undisputed, liquidated or unliquidated, matured or unmatured, and whether or not accrued, and 4

15 Case JKO Doc 9147 Filed 05/01/13 Page 15 of 17 whether or not asserted or assertable in law, equity or otherwise, for, upon, or by reason of any act, omission or other matter, cause, or thing whatsoever, which the Debtors ever had or may have had, except for the rights set forth herein. 4. By their signatures hereto, each of the undersigned represents that it is duly authorized to execute this Stipulation on behalf of each Party. In addition, American Cement represents that it is the holder of Claim 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. 6. The Bankruptcy Court shall retain jurisdiction to enforce this Stipulation and to hear any matters or disputes arising from or relating to this Stipulation. 7. This Stipulation is subject to and shall be immediately effective on the date of entry of an order of the Court approving the terms hereof. The terms and provisions of this Stipulation shall be void and of no further force and effect if such approval by the Court is not granted. 8. 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 Bankruptcy Code. 9. This Stipulation and all the provisions hereof shall be binding upon and shall inure to the benefit of all the Parties hereto, each of their respective executors, heirs, successors and assigns, and all entities claiming by or through any of the Parties. 10. This Stipulation shall not be construed as an admission of liability or wrongdoing by any of the Parties. 5

16 Case JKO Doc 9147 Filed 05/01/13 Page 16 of This Stipulation constitutes the entire agreement among the Parties concerning the subject matter hereof and supersedes any prior understandings, agreements or representations by or between the parties, written or oral, to the extent they relate in any way to the subject matter hereof. [The remainder of this page is left blank intentionally.] 6

17 Case JKO Doc 9147 Filed 05/01/13 Page 17 of IN WITNESS WHEREOF, the undersigned parties have executed this Stipulation as of the date first set forth below. Dated: May 1, 2013 FOSTER GRAHAM MILSTEIN & CALISHER, LLP BERGER SINGERMAN LLP /s/ Daniel J. Garfield Daniel J. Garfield /s/ Paul Steven Singerman Paul Steven Singerman (Florida Bar No ) 360 South Garfield Street, Suite Brickell Avenue, Suite 1900 Denver, CO Miami, FL Telephone: (303) Telephone: (305) Facsimile: (303) Facsimile: (305) Counsel to the American Cement Corporation -and- KIRKLAND & ELLIS LLP Richard M. Cieri (New York Bar No ) Joshua A. Sussberg (New York Bar. No ) 601 Lexington Avenue New York, NY Telephone: (212) Facsimile: (212) Co-Counsel to the Debtors