Case No. 02-08699 (Jointly Administered).United States Bankruptcy Court, N.D. Illinois, Eastern Division.
October 26, 2004
Steven J. Christenholz, Piper Rudnick LLP, Chicago, Illinois, Attorneys for the NSC Creditor Trust.
Jeffrey Schwartz, Gardner Carton Douglas LLP, Chicago, Illinois, Attorneys for Marubeni Corporation and its Affiliates and Subsidiaries.
STIPULATION AND AGREED ORDER REGARDING CLAIMS FILED BY MARUBENI CORPORATION AND CERTAIN OF ITS AFFILIATES AND SUBSIDIARIES RECITALS
JOHN SQUIRES, Bankruptcy Judge
A. On March 6, 2002, National Steel Corporation and certain of its subsidiaries and affiliates (the “Debtors”) commenced their respective reorganization cases by filing voluntary petitions for relief (the “Bankruptcy Cases”) under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101–1330 (as amended, the “Bankruptcy Code”).
B. Marubeni Corporation and certain of its affiliates and subsidiaries (collectively, “Marubeni”) filed multiple claims against the Debtors in these Bankruptcy Cases in addition to being listed on the Debtors’ schedules. A list of the claims filed by Marubeni or listed on the Debtors’ schedules is attached hereto as Exhibit “A” (the “Marubeni Claims”).
C. On October 23, 2003, the Bankruptcy Court entered an order (the “Confirmation Order”) confirming the First Amended Joint Plan of Liquidation of National Steel Corporation and its Affiliated Debtors and Debtors-in-Possession (as modified, the “Plan”).[1] The Plan became effective on December 19, 2003.
D. Section 2.10 of the Plan provides that: “In full satisfaction, settlement, release and discharge of, and in exchange for any and all Mitsubishi/Marubeni Claims against any Debtor,
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Mitsubishi and Marubeni (a) collectively received the Mitsubishi/Marubeni Sale Closing Date Payment; (b) Mitsubishi shall receive 70.33% of the Mitsubishi/Marubeni Recovery Pool, and (c) Marubeni shall receive 29.67% of the Mitsubishi/Marubeni Recovery Pool. Pursuant to the Intercreditor Settlement, Bankruptcy Rule 9019 and 11 U.S.C. §§ 1123(b)(3) and (5), and in consideration for the distributions and other benefits provided in connection with the US Steel Sale and under this Plan, the provisions of this Plan will constitute a good faith compromise and settlement and release of all claims or controversies relating to all Mitsubishi/Marubeni Claims. The entry of the Confirmation Order will constitute the Bankruptcy Court’s approval of the compromise and settlement and release of all such claims or controversies and the Bankruptcy Court’s finding that such compromise and settlement and release is in the best interests of the Debtors and the Reorganized Debtors and their respective property and Claim and Interest holders, and is fair, equitable and reasonable.”
E. Pursuant to the Plan and the National Steel Corporation Creditor Trust Agreement, substantially all of the assets of the Debtors were transferred to the NSC Creditor Trust (the “Trust”), and the Trust received authority to pursue objections to claims.
F. On April 6, 2004, the Trust filed its First Omnibus Objection to Administrative Proofs of Claim (the “First Omnibus Objection”), which included objections to administrative claim numbers 4502 and 4503 filed by Marubeni (the “Marubeni Administrative Claims”).
G. On August 20, 2004, the Trust filed the NSC Creditor Trust’s and NKK Litigation Trust’s Twenty-Seventh Omnibus Objection to Claims Pursuant to 11 U.S.C. §§ 105(a) and 502(b) and Fed.R.Bankr.P. 3007 (the “Twenty-Seventh Omnibus Objection”), which included, among other things, objections to claim numbers 4209-4215, 4217-4220, and 30929 (scheduled).
H. The Trust and Marubeni now wish to resolve both matters pursuant to the terms and conditions of the Intercreditor Settlement, the Plan and this Stipulation and Order.
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STIPULATION AND ORDER
NOW, THEREFORE, based on the foregoing recitals and in consideration of the mutual promises and terms contained herein and in the Intercreditor Settlement, the Plan, the Confirmation Order and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Trust and Marubeni agree, and it is hereby ordered, as follows:
1. Except as provided in Section 2.10 of the Plan, the Intercreditor Settlement and the Confirmation Order, Marubeni shall not be entitled to any other distributions under the Plan, including, but not limited to, any distributions on account of the Marubeni Claims.
2. Nothing contained in this Stipulation and Order is intended to, or shall be construed to, alter, affect, or modify, in any way, the rights of the Debtors, the Trust, or Marubeni under the terms of the Intercreditor Settlement, the Plan or the Confirmation Order.
3. Nothing contained in this Stipulation and Order is intended to, or shall be construed to, alter, affect, or modify, in any way, any of the rights, claims or defenses of Marubeni, Marubeni America Corporation, Marubeni-Itochu Steel American Inc. or the Trust with respect to Adversary Proceeding # 04-01004 and Adversary Proceeding # 04-01017.
4. Any amendment to, or modification of, this Stipulation and Order, in order to be legally binding, must be in a writing specifically referring to this Stipulation and Order and signed by duly authorized representatives of each party hereto.
5. The parties to this Stipulation and Order agree that the Bankruptcy Court shall have exclusive jurisdiction, to which the parties hereby submit, over any dispute arising under, or relating to, this Stipulation and Order or any action or proceeding to enforce the terms of this Stipulation and Order.
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6. This Stipulation and Order may be executed in counterparts, each of which will be deemed an original regardless of the date of its execution and delivery. All of such counterparts considered together shall constitute one and the same document. This Stipulation and Order may be executed by facsimile signature, with original signatures to be provided thereafter.
7. Each individual signatory to this Stipulation and Order represents that he/she has the authority to execute and deliver this Stipulation and Order on behalf of the party for whom he/she is signing.
8. This Stipulation and Order is final and is effective immediately.
SO ORDERED.
EXHIBIT A[2]