Case No. 01-52840-399.United States Bankruptcy Court, E.D. Missouri, Eastern Division.
March 22, 2004
Jennifer A. Merlo, Esq., #51455, Bryan Cave LLP, St. Louis, Missouri, Attorneys for Thermadyne Holdings Corporation, et al.
J. Patrick Bradley, Esq., #43112, Greensfelder, Hemker, et al., St. Louis, Missouri, Attorneys for Deloro Stellite Company, Inc.
AGREED ORDER ON OBJECTIONS TO CLAIM OF DELORO STELLITE COMPANY, INC.
BARRY SCHERMER, Bankruptcy Judge
Upon the Objections to Claim of Deloro Stellite Company, Inc.
filed by Thermadyne Holdings Corporation (“Thermadyne”) and certain of its direct and indirect subsidiaries (collectively, the “Debtors”), and upon the Response filed by Deloro Stellite Company, Inc. (“Deloro”), and upon the record herein; and after due deliberation thereon; and good and sufficient cause appearing therefore,
IT IS HEREBY FOUND THAT:
1. This Court has core jurisdiction to hear this matter pursuant to 28 U.S.C. §§ 157(b) and 1334. The statutory predicates governing the matter are Section 501 of the United States Bankruptcy Code (the “Bankruptcy Code”) and Rules 3003 and 9006 of the Federal Rules of Bankruptcy Procedure.
2. This Court retains jurisdiction over this matter pursuant to Article XII of the Debtors’ First Amended and Restated Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code dated January 17, 2003 (the “Plan”), as confirmed by this Court pursuant to that Findings of Fact, Conclusions of Law, and Order Pursuant to 11 U.S.C. § 1129(a) and (b) and Fed.R.Bankr.P. 3020 Confirming the Debtors’ First Amended and
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Restated Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code dated April 3, 2003 (the “Confirmation Order”).
3. The Debtors filed their voluntary petitions on November 19, 2001.
4. The Debtors filed their Plan on January 17, 2003, which was approved and confirmed by the Confirmation Order on April 3, 2003. The Effective Date, as defined in the Plan, was May 23, 2003.
5. On January 31, 2003, Deloro filed a motion to file late claim, which motion was granted by this Court on April 9, 2003, permitting Deloro to file its claim (the “Claim”). Deloro filed a claim in an undetermined amount based upon an indemnity agreement between Deloro and Thermadyne.
6. On December 15, 2003, the Debtors filed an objection to Delo ro’s claim asserting that (i) Deloro’s Claim was a secondary and contingent indemnity claim for which no specific amount is due and owing; (ii) Deloro’s Claim was not supported by sufficient information to establish a prima facie presumption of validity; and (iii) Deloro’s Claim was unduly speculative.
7. This Court has been informed that the Debtor and Deloro have resolved the objection to Deloro’s claim.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED THAT:
8. Deloro shall be allowed a general unsecured claim in the amount of $950,000.00. The claim shall share pro rata with the other Class 4 claims under the Plan.
9. This resolution of the claim constitutes the entirety of all claims that may be asserted by Deloro against the Debtors, or by the Debtors against Deloro, relating to the indemnification agreement.
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10. This court retains jurisdiction to hear any and all additional matters relating to Deloro’s claim against the Debtors.
11. No later than five (5) business days after the date of this order, Jennifer A. Merlo is directed to serve a copy of the order on all parties listed below and is directed to file a certificate of service no later than two (2) business days after service.
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