Case No. 02-08699 (Jointly Administered).United States Bankruptcy Court, N.D. Illinois, Eastern Division.
January 31, 2005
NATIONAL STEEL CORPORATION, ET AL. AND THE NSC CREDITOR TRUST Steven J. Christenholz, Ann Marie Bredin, DLA PIPER RUDNICK GRAY CARY US LLP Chicago, Illinois, ATTORNEYS FOR NATIONAL STEEL CORPORATION, ET AL. AND THE NSC CREDITOR TRUST
MIZUHO GLOBAL, LTD. Leslie W. Chervokas, SCHULTE ROTH ZABEL LLP New York, New York, ATTORNEYS FOR MIZUHO GLOBAL, LTD.
STIPULATION AND AGREED ORDER REGARDING CLAIM NUMBERS 3716, 3717, AND 5438 OF MIZUHO GLOBAL, LTD. 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 under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101–1330 (as amended, the “Bankruptcy Code”).
B. On August 8, 2002, Mizuho Corporate Bank, Ltd. (“MCB”) filed a general unsecured, non-priority proof of claim in the amount of $2,333,248.75 against Debtor ProCoil Corporation. This claim was assigned claim number 3717 (“Claim 3717”).
C. On August 8, 2002, MCB also filed a contingent, unliquidated claim against Debtor National Steel Corporation (New York). This claim was assigned claim number 3716 (“Claim 3716”).
D. Pursuant to an Assignment and Acceptance dated as of July 23, 2003, MCB sold to Mizuho Global, Ltd. (the “Claimant,” and together with MCB, “Mizuho”) all of MCB’s right, title and interest in and to, among other things, Claim 3716 and Claim 3717.
E. On October 8, 2003, the Claimant filed a proof of claim to amend Claim 3716. In an attachment to the proof of claim, the Claimant indicated that it had inadvertently filed Claim 3716 against the incorrect debtor, namely National Steel Corporation (New York). The Claimant
Page 2
filed this new proof of claim in order to reclassify the claim as one against Debtor National Steel Corporation (Delaware). This new claim was assigned claim number 5438 (“Claim 5438”).
F. On October 23, 2003, the United States Bankruptcy Court for the Northern District of Illinois (the “Bankruptcy Court”) entered an 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”). The Plan became effective on December 19, 2003.
G. 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.
H. On November 7, 2003, the Trust filed the NSC Creditor Trust’s Eighth Omnibus Objection to Claims Pursuant to 11 U.S.C. §§ 105(a) and 502(b), and Fed.R.Bankr.P. 3007 (the “Eighth Omnibus Objection”).
I. In the Eighth Omnibus Objection, the Trust sought to disallow Claim 3716 on the basis that it is duplicative of Claim 3717. The Claimant challenged the objection, and on February 10, 2004, the parties filed a stipulation and agreed order with the Court addressing certain claims issues (the “February Stipulation”). Pursuant to the February Stipulation, Claim 3716 was reclassified as having been filed against Debtor National Steel Corporation (Delaware), and Claim 5438 was withdrawn.
J. 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”). In Exhibit A to the Twenty-Seventh Omnibus Objection, the Trust intended to object to Claim 3716, but inadvertently objected to Claim 5438 and requested disallowance of such claim.
Page 3
K. On September 23, 2004, the Claimant filed a response to the Twenty-Seventh Omnibus Objection with the Bankruptcy Court, wherein the Claimant asserted that Claim 5438 had been disallowed pursuant to the February Stipulation.
L. The Trust and Mizuho now wish to resolve Claim 3716, Claim 3717 and Claim 5438 pursuant to the terms and conditions of this Stipulation and Order.
STIPULATION AND ORDER
NOW, THEREFORE, based on the foregoing recitals and in consideration of the mutual promises and terms contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Trust and Mizuho agree, and it is hereby ordered, as follows:
1. Allowance of Claim 3716. Claim 3716 is hereby allowed against Debtor National Steel Corporation (Delaware) as a general unsecured, non-priority claim in the amount of $1,500,000.00.
2. Allowance of Claim 3717. Claim 3717 is hereby allowed as a general unsecured, non-priority claim against Debtor ProCoil Corporation in the amount of $2,333,248.75.
3. Claim 5438 is Disallowed. Claim 5438 is disallowed and expunged in its entirety, pursuant to the February Stipulation.
4. Limited Mutual Release. Except as to any other of Mizuho’s allowed claims in these cases, or as otherwise provided herein, the Trust and the Debtors, on the one hand, and Mizuho, on the other hand, hereby release and discharge each other and their respective members, principals, agents, accountants, attorneys, employers, representatives, successors, assigns, officers and directors, as applicable, from any and all claims and causes of action that each may have against the other, including, but not limited to, any claims or causes of action
Page 4
related to, or arising from, Claim 3716, Claim 3717, Claim 5438 or any other transactions that occurred between the Debtors and/or the Trust and Mizuho.
5. Entire Agreement. This Stipulation and Order constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other prior or contemporaneous negotiations, representations, agreements and understandings, both written and oral, between the parties or their respective counsel with respect to the subject matter hereof.
6. Amendments. Any amendment 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.
7. Jurisdiction; Enforceability. 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.
8. Counterparts. 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, which signature shall have the same force and effect as an original signature.
Page 5
9. Authorized Signatories. 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.
SO ORDERED.