United States District Court, Northern District of California
May 7, 2003
JEFFERY H. BECK, LIQUIDATING TRUSTEE OF THE CROWN PAPER LIQUIDATING TRUST, PLAINTIFF, VS. KALAMAZOO PAPER CHEMICALS, DEFENDANT.
The opinion of the court was delivered by: Samuel Conti, United States District Judge
STIPULATION FOR SETTLEMENT
This Agreement (the "Agreement") is entered into by and between the Plaintiff, Jeffrey H. Beck, Liquidating Trustee of the Crown Paper Liquidating Trust and the Defendant in order to memorialize the terms and conditions of the settlement entered into by and between the parties in the above styled Adversary Proceeding.
WHEREAS, on March 15, 2002, Crown Paper, Inc. and Crown Vantage, Inc. each filed Voluntary Petitions under Chapter 11, Title 11 of the United States Code (the "Bankruptcy Code");
WHEREAS, the Bankruptcy cases were jointly administered under Case No. 00-41584-N;
WHEREAS, on November 19, 2001, the United States Bankruptcy Court, The Honorable Randall J. Newsome presiding, confirmed the Debtors' Second Amended Disclosure Statement and Joint Liquidating Plan of Reorganization (the "Plan");
WHEREAS, pursuant to the terms and conditions of the Plan, Jeffrey H. Beck was appointed and authorized to seive as Liquidating Trustee under the terms and conditions of the Crown Paper Liquidating Trust Agreement (the "Trust Agreement");
WHEREAS, pursuant to the Plan and the Trust Agreement, all remaining assets of the Debtors, including, without Limitation, claims and causes of actions pursuant to Chapter 5 of the Bankruptcy Code ("Avoidance Actions") were assigned to the Liquidating Trust, and the Liquidating Trustee was authorized and empowered to pursue Avoidance Actions;
WHEREAS, on or before March 15, 2002, the Liquidating Trustee commenced the above-styled Avoidance Action against the Defendant (the "Adversary Proceeding");
WHEREAS, on September 16, 2002, the United States Bankruptcy Court for the Northern District of California entered an Order of Certification certifying the Adverse Proceeding to the United States District Court, Northern District of California, for a jury trial.
WHEREAS, the parties subsequently entered into negotiations and have agreed to settle the Adversary Proceeding and, therefore, wish to memorialize the terms and conditions of their settlement agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, the parties stipulate and agree as follows:
1. The Defendant shall pay $15,000.00 to the Liquidating Trustee in full and complete satisfaction of any and all claims asserted in the Adversary Proceeding (the "Settlement Amount").
2. The Settlement Amount shall be payable in full in a single lump-sum payment by cashier's check or money order made payable to "Crown Paper Liquidating Trust", or by wire transfer. Wire transfer instructions and an appropriate federal tax identification number shall be made available upon request.
3. The Settlement Amount shall be due and payable, and delivered to Counsel for the Liquidating Trustee, immediately upon the parties filing a stipulation for settlement and stipulation for dismissal with the United States District Court for the Northern District of California.
4. Unless otherwise provided herein, this Agreement is intended solely to resolve claims asserted in the Adversary Proceeding and is without prejudice to the rights of the Plaintiff to object to any proof of claim filed on behalf of the Defendant.
5. Unless otherwise provided herein, the Defendant shall be entitled to amend or file a claim for monies paid hereunder; however, such claim must be filed within (30) days following the execution by both parties of this Agreement.
6. This Agreement may be executed in counterparts and signatures provided by facsimile shall be deemed originals.
7. By execution hereof each party acknowledges and agrees that they have the requisite approvals and authority to enter into this Agreement and to bind their respective employer or principal if executed in a representative capacity.
8. The invalidity or unenforceability of any term, clause or provision of this Agreement shall not affect the validity or unenforceability of any remaining term, clause, or provision herein.
9. The United States District Court shall retain jurisdiction for purposes of enforcing and interpreting any terra, clause, or provision of this Agreement.
10. In the event either party to this Agreement shall have to seek enforcement of this Agreement, the prevailing party shall be entitled to an award of reasonable attorneys' fees and costs.
11. In the event of any ambiguity in the interpretation of this Agreement, each party hereto shall be deemed to have shared equally in the drafting of this Agreement and, therefore, no term, clause or provision shall be construed against either party as the drafter of this Agreement.
12. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof, and there are no other agreements, representations, or warranties between the parties other than those contained herein.
13. This Agreement may not be changed, altered or modified, and no condition or other performance owed may be waived or excused, except by prior written agreement of the parties.
14. This Agreement shall be governed by the applicable provisions of the Bankruptcy Code and the laws of the State of California.
STIPULATION FOR DISMISSAL
PURSUANT TO FCRP 41(a)
The parties to the above-captioned adversary proceeding hereby stipulate that this case be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1), with each party to bear its own fees and costs incurred in this action.
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