Case No. 01-41593-293United States Bankruptcy Court, E.D. Missouri
July 8, 2003
Mark L. Prager, FOLEY LARDNER, CHICAGO, ILLINOIS
David B.Goroff, FOLEY LARDNER, CHICAGO, ILLINOIS
MICHAEL J. SMALL, FOLEY LARDNER, CHICAGO, ILLINOIS
CYNTHIA A. FONNER, FOLEY LARDNER, CHICAGO, ILLINOIS
ORDER APPROVING SETTLEMENT AND COMPROMISE OF CLAIM OF COUGAR CAPITAL MANAGEMENT AND RECOVERY OF TRANSFERS UNDER SECTIONS 547 AND 550
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 Cougar Capital Management Company, Inc. (“Cougar Capital Management”) and the Debtors concerning the Claim of Cougar Capital Management under Sections 503 and 507 of the Bankruptcy Code, and for the Plan Administrator’s recovery of transfers pursuant to sections 547 and 550 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 Cougar Capital Management, 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, Cougar Capital
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Management’s Application for payment of administrative priority expenses under sections 503 and 507 of the Bankruptcy Code, is withdrawn.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.
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 Cougar Capital Managemet (“Cougar”) 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 Cougar, the “Parties”).
RECITALS
WHEREAS, BIS / Administration, Inc. and certain of its subsidiaries (collectively, the “Debtor”) filed a voluntar’ petition for relief under Chapter 11 of the Bankruptcy Code on February 15, 2001;
WHEREAS, by letter sent to the united States Bankruptcy Court, Eastern District of Missouri, Eastern Division on May 6, 2002, filed as No, 1330, Cougar asserted that it provided Debtor with certan administrative service; specifically, data of foreign exchange pricing.
WHEREAS, Cougar asserted it’s claim against the Debtor in the amount of $16,000.00 for unpaid post-petition services;
WHEREAS. Cougar received approximately $12,000.00 from Debtor in the 90-day preference period preceding the filing of Debtor’s petition;
WHEREAS, the Plan Administrator asserted, pursuant to sections 547 and 550 of the Bankruptcy Code, that the Plan Administrator is entitled to recover $12,000.00 as preferential transfers, (together with Cougar’s administrative claim asserted against Debtor, the “Claims”) and
WHEREAS, Cougar and the Plan Administrator have agreed to compromise and settle the Claims on the terms and conditions provided below.
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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 10 the terms and provisions of this Settlement, the Plan Administrator and Cougar agree that the Claims shall be compromised and settled for a single payment from the Plan Administrator to Cougar in the amount of Four Thousand Dollars (S4,000.00) (the “Settlement Amount”),
3. In consideration of the foregoing, Cougar agrees to withdraw its administrative claim, and any and all additional claims against the Debtor, and the Plan Administrator agrees not to file a complaint against Cougar. 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 Cougar, the release and discharge of the Plan Administrator provided for in Paragraph 4 below, shall be revoked and be null and void and all of Cougar’s claims and causes of action against the Debtor existing at the time of execution of this Agreement, shall be reinstated in full, and, in such event, (he Plan Administrator hereby irrevocably waives any defense based upon, the state of limitations or bar date for said claims and causes of action. 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 Cougar, the release and discharge of Cougar provided for in Paragraph 4, below, shall be evoked and be null and void and all of the Plan Administrator’s rights in causes of action against Cougar, existing at the time of execution of this Agreement, shall be reinstated in full, and, in such event. Cougar hereby irrevocably waives any defense based upon the statute of limitations or bar date for said claim and causes of action. Upon
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Cougar’s receipt of payment under this Settlement, the Claims are deemed to have been withdrawn without leave to re-file.
4. In further consideration of the fore going, Cougar 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.
5. Each 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.
6. 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 seemed by each of the Parties. The parties agree that facsimile signatures will be treated it all manner and respects as a binding and original document, and the signature c of any Party shall be considered for these purposes as an original signature.
IN WITNESS WHEREOF the Parties here have caused this Settlement to be executed as of the 11th day of February, 2003.
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