Opinion
Case No. 01-16034 (AJG) Jointly Administered.
August 8, 2005
Luc A. Despins (LD 5141), Robert E. Winter (RW 9937), James H. MacInnis (JM 5947), MILBANK, TWEED, HADLEY McCLOY LLP, New York, New York, Attorneys for Reorganized Debtors.
Thomas R. Califano (TC-5283), Jeremy Johnson (JJ-9269), DLA PIPER RUDNICK GRAY CARY US LLP, New York, New York, Attorneys for LSP-Kendall Energy LLC.
STIPULATION AND CONSENT ORDER REGARDING PROOF OF CLAIM OF LSP-KENDALL ENERGY LLC
This Stipulation and Consent Order (the "Stipulation and Consent Order") is entered into by and among (a) LSP-Kendall Energy LLC ("LSP-Kendall"), (b) Enron Corp. ("Enron"), one of the above-captioned Reorganized Debtors, and (c) National Energy Production Corporation (n/k/a EPC Estate Services, Inc.) ("NEPCO", collectively with LSP-Kendall and Enron, the "Parties").
RECITALS
1. On December 2, 2001, Enron filed a voluntary petition under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101- 1330 (as amended, the "Bankruptcy Code") in the United States Bankruptcy Court for the Southern District of New York (the "Bankruptcy Court"). NEPCO also filed a voluntary petition under chapter 11 of the Bankruptcy Code on May 20, 2002. The cases of Enron and NEPCO, inter alia, are being jointly administered for procedural purposes only in the above-captioned case.
2. LSP-Kendall timely filed proof of claim number 16037 in the original estimated amount of $35,000,000 against Enron (the "Enron Proof of Claim"). The above-captioned Reorganized Debtors objected to the Enron Proof of Claim on or about January 27, 2005 (the "Original Objection"), pursuant to that certain Estimation Order.
The Bankruptcy Court entered that certain Order, Pursuant to Sections 105(a), 363(b) and 502(c) of the Bankruptcy Code and Federal Rules of Bankruptcy Procedure 3018, 7042, and 9019, (1) Establishing Procedures to Estimate Unliquidated and Contingent Claims, (2) Establishing Procedures to Estimate Counterclaims, (3) Establishing Procedures to Compromise Claims and Counterclaims and (4) Fixing Notice Procedures and Approving Form and Manner of Notice (Docket No. 16353) (the "Estimation Order").
3. LSP-Kendall moved (the "Motion") for entry of an order deeming LSP-Kendall's proof of claim against NEPCO in the estimated amount of $35 million (the "NEPCO Proof of Claim") to have been filed on October 31, 2002; and submitted in support of the Motion the declaration of Larry B. Ricke, dated May 19, 2005.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties stipulate and agree as follows:
A. The NEPCO Proof of Claim is, and shall be, deemed to have been timely filed on October 31, 2002.
B. The Original Objection is, and shall be, deemed amended to include the NEPCO Proof of Claim. All of the Reorganized Debtors' objections asserted in the Original Objection, except as to the failure to timely file such NEPCO Proof of Claim, shall be construed to include the NEPCO Proof of Claim, as if such objection had been originally included therein.
C. Reservation of Other Claims and Rights. Except as specifically set forth in paragraph A and B above, nothing herein is intended to, nor shall it, affect, impact, or release any other claims, defenses or rights of Enron or NEPCO against LSP-Kendall or prevent Enron or NEPCO from raising additional objections or claims not included in the Original Objection, nor shall this Stipulation and Consent Order affect, impact or release any other claims, defenses or rights of LSP-Kendall against Enron or NEPCO.
D. Binding Nature. This Stipulation and Consent Order (i) shall inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns and (ii) shall be binding upon and enforceable against the Parties and their respective successors and assigns upon the entry of an order of the Bankruptcy Court approving this Stipulation and Consent Order.
E. Bankruptcy Court Approval. This Stipulation and Consent Order is expressly subject to and contingent upon its approval by the Bankruptcy Court. If this Stipulation and Consent Order, or any portion hereof, is not approved by the Bankruptcy Court or if it is overturned or modified on appeal, this Stipulation and Consent Order shall be of no further force and effect, and, in such event, neither this Stipulation and Consent Order nor any negotiations and writings in connection with this Stipulation and Consent Order shall in any way be construed as or deemed to be evidence of or an admission on behalf of any Party hereto regarding any claim or right that such Party may have against any other party hereto.
F. Non-Severability. The provisions of this Stipulation and Consent Order are mutually interdependent, indivisible and non-severable.
G. Entire Agreement. This Stipulation and Consent Order constitutes the entire agreement between the Parties hereto with respect to the Enron Proof of Claim and the NEPCO Proof of Claim (collectively, the "Proofs of Claim") and supersedes all prior settlement agreements and understandings, written and oral, between the Parties with respect to the Proofs of Claim. This Stipulation and Consent Order may not be modified or amended except by a writing signed by all of the Parties. All representations, warranties, promises, inducements or statements of intention made by the Parties hereto are embodied in this Stipulation and Consent Order, and no Party hereto shall be bound by, or liable for, any alleged representation, warranty, inducement or statement of intention that is not expressly embodied herein. The Parties represent and warrant that this Stipulation and Consent Order discloses all of the terms of the Parties' agreement with respect to the Proofs of Claim.
H. Counterparts; Effective Date. This Stipulation and Consent Order may be executed in one or more counterparts and by facsimile, all of which shall be considered one and the same agreement, and shall become effective when one or more such counterparts have been signed by each of the Parties and delivered to all Parties, and the Bankruptcy Court has entered the Stipulation and Consent Order on the docket of the Bankruptcy Court.
I. Authority and Representations. The Parties hereto represent and warrant to each other that: (i) the signatories to this Stipulation and Consent Order are authorized to execute this Stipulation and Consent Order; (ii) each has full power and authority to enter into this Stipulation and Consent Order; and (iii) this Stipulation and Consent Order is duly executed and delivered, and constitutes a valid and binding agreement in accordance with its terms.
J. Costs. Each Party hereto shall bear its own expenses incurred in connection with the negotiation, execution and Bankruptcy Court approval of this Stipulation and Consent Order.
K. Governing Law. This Stipulation and Consent Order shall be governed by, and construed in accordance with, the Bankruptcy Code and the laws of the state of New York, without regard to any principles of choice of law thereof which would require the application of the law of any other jurisdiction.
L. Retention of Jurisdiction. The Bankruptcy Court shall retain exclusive jurisdiction to interpret, implement and enforce the provisions of this Stipulation and Consent Order, and the Parties hereby consent to exclusive jurisdiction of the Bankruptcy Court with respect thereto. The Parties waive arguments of lack of personal jurisdiction or forum non conveniens with respect to the Bankruptcy Court.
M. Headings. The descriptive headings of the several sections of this Stipulation and Consent Order are inserted for convenience of reference only and do not constitute a part of this Stipulation and Consent Order.
IN WITNESS WHEREOF, the Parties have executed this Stipulation and Consent Order on August 3, 2005.
So Ordered.