Case No. 01-41593-293United States Bankruptcy Court, E.D. Missouri
July 8, 2003
Maik L. Prager, FOLEY LARDNER, Chicago, Illinois,
Michael J. Small, FOLEY LARDNER, Chicago, Illinois,
Cynthia A. Fonner, FOLEY LARDNER, Chicago, Illinois,
Derek L. Wright, FOLEY LARDNER, Chicago, Illinois,
Archie Lawrence, Revenue Litigation Bureau, Springfield, Illinois,
ORDER APPROVING SETTLEMENT AND COMPROMISE OF CLAIMS OF ILLINOIS DEPARTMENT OF REVENUE
DAVID McDONALD, Chief Judge, Bankruptcy
This matter having come on to be heard on the motion of Scott Peltz, the Chapter 11 Plan Administrator (the “Plan Administrator”) for the estate of BIS Administration, Inc. and certain of its subsidiaries (collectively, the “Debtors”) for the entry of an order approving a settlement and compromise between Illinois Department of Revenue (“IL DOR”) and the Debtors concerning the Claim of Illinois Department of Revenue under Sections 502 and 507 of the Bankruptcy Code, as more particularly set forth herein, notice having been served on parties in interest, no objections having been filed or otherwise raised, and the Court being advised in the premises,
IT IS HEREBY ORDERED THAT:
1. The Debtors’ settlement with IL DOR, as set forth on the attached Exhibit A, (the “Settlement”) is approved, and all of its terms are incorporated herein by this reference.
2. Without limiting the foregoing, pursuant to the Settlement, IL DOR’s claims against the Estates are withdrawn.
3. The Plan Administrator is hereby authorized to execute any and all documents and to take any and all actions necessary to effectuate the terms of the Settlement.
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No later than five (5) business days after the date of this order, counsel for the Plan Administrator is directed to serve a copy of the order to parties as identified on the attached Distribution List and is directed to file a certificate of service no later than two business days after service.
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SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release (the “Settlement”) is entered into by and between the Illinois Department of Revenue (“IL DOR”) and Scott Peltz, not individually but solely as the Chapter 11 Plan Administrator of the Estate of BIS Administration, Inc. and certain of its subsidiaries (the “Plan Administrator” and, together with IL DOR, the “Parties”).
REClTALS
WHEREAS, BIS Administration, Inc. and certain of its subsidiaries (collectively, the “Debtor”) filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code on February 15, 2001;
WHEREAS, IL DOR filed proof of claim number 546 in the amount of $100,000 against the Debtor on March 6, 2001, which was subsequently amended by proof of claim number 423 in the amount of $33,444.00, tiled by IL DOR on May 7, 2001;
WHEREAS, IL DOR filed proof of claim number 1970 in the amount of $9,186.38 on August 7, 2002;
WHEREAS, the Debtor objected to IL DOR’s proof of claim number 546 in its Omnibus Objection to Tax Claims filed on February 7, 2003 because, among other reasons, (i) the claim was an estimate of tax owed based on pre-acquisition audit results; (ii) claim number 546 was amended by claim number 423; and (iiii) the Bankruptcy Court previously disallowed claim number 423;
WHEREAS, IL DOR alleged that it did not receive notice of the Debtors’ Objection to Claims No, 13 (Priority Tax Claims) that included IL DOR’s claim number 423, upon which the Bankruptcy Court based its order denying claim number 423;
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WHEREAS, the Plan Administrator objected to claim number 1970, indicating that there is insufficient supporting documentation provided to support such a claim and that, according to the Debtors’ records, no amount is due.
WHEREAS. EL DOR and the Plan Administrator have agreed to compromise and settle the Claim on the terms and conditions provided below.
AGREEMENT
1. Nothing in this Settlement shall be deemed or construed as an admission or concession of wrongdoing or liability on the part of either Party.
2. Pursuant and subject to the terms and provisions of this Settlement, the Plan Administrator and IL DOR agree that claim number 1970 shall be allowed as an unsecured priority claim in the amount of $9,186.38 (the “Settlement Amount”).
3. In consideration of the foregoing, IL DOR agrees to withdraw claim numbers 546 and 423 any and all additional claims against the Debtor (the “Withdrawn Claims”), and the Plan Administrator agrees not to further pursue its objections against IL DOR. Upon entry of an order approving IL DOR’s unsecured priority claim in the amount of $9,186.38 under this Settlement, the Withdrawn Claims shall be deemed to have been withdrawn without leave to re-file.
4. The Parties agree that if any of the payments or transfers required by this Settlement are avoided or deemed voidable or void for any reason before payment is received by IL DOR, the release and discharge of the Plan Administrator provided for in Paragraph 6, below, shall be revoked and be null and void and all of IL DOR’s claims and causes of action against the Debtor, existing at the time of execution of this Agreement, shall be reinstated in
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full, and, in such event, the Plan Administrator hereby irrevocably waives any defense based upon the statute of limitations or bar date for said claims and causes of action.
5. The Parties similarly agree that if any of the payments or transfers required by this Settlement are avoided or deemed voidable or void for any reason before payment is received by IL DOR, the release and discharge of IL DOR provided for in Paragraph 6, below, shall be revoked and be null and void and all of the Plan Administrator’s rights in causes of action against IL DOR. existing at the time of execution of this Agreement, shall be reinstated in full, and, in such event, IL DOR hereby irrevocably waives any defense based upon the statute of limitations or bar date for said claims and causes of action.
6. In further consideration of the foregoing, IL DOR and the Plan Administrator hereby release and forever discharge each other from all claims raised or which could have been raised by the Parties, known or unknown, including, but not limited to those arising under the Bankruptcy Code.
7. Bach Party warrants to the other Party that the individual signing on its behalf has been duly authorized to sign and has the requisite authority to sign this Settlement on behalf of the respective Party,
8. This Settlement may be executed in one or more counterparts, each of which shall constitute one and the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties. The Parties agree that facsimile signatures will be treated in all manner and respects as a binding and original document, and the signature of any Party shall be considered for these purposes as an original signature.
IN WITNESS WHEREOF, the Parties hereto have caused this Settlement to be executed as of the __ day of June, 2003.