Opinion
Case No. 01-16034 (AJG), Jointly Administered.
July 25, 2005
David A. Sullivan (DS 8967), Wendy Rosenthal (WR 4461), Clifford Chance US LLP, New York, New York, ATTORNEYS FOR STATKRAFT MARKETS GMBH.
Martin J. Bienenstock (MB 3001), Brian S. Rosen (BR 0571), Melanie Gray (Pro Hac Vice), WEIL GOTSHAL MANGES LLP, New York, New York, ATTORNEYS FOR THE REORGANIZED DEBTORS.
STIPULATION AND ORDER RESOLVING OBJECTION TO PROOF OF CLAIM NO. 6610 FILED BY STATKRAFT MARKETS GmbH
Enron Corp. ("Enron"), as reorganized debtor, and Statkraft Markets GmbH ("Creditor", and together with Enron the "Parties"), by and through their respective undersigned counsel, hereby stipulate and agree as follows:
RECITALS:
Procedural Background:
A. On December 2, 2001 (the "Petition Date") and from time to time thereafter, Enron and certain of its direct and indirect subsidiaries (collectively, the "Debtors" or "Reorganized Debtors") filed voluntary petitions for relief under chapter 11 of Title 11 of the United States Code (the "Bankruptcy Code"). From and after the Petition Date, the Debtors managed and operated their businesses as debtors-in-possession pursuant to Bankruptcy Code sections 1107 and 1108.
B. On July 15, 2004, the Court entered an order (the "Confirmation Order") confirming the Supplemental Modified Fifth Amended Joint Plan of Affiliated Debtors Pursuant to Chapter 11 of the United States Bankruptcy Code, dated as of July 2, 2004 (the "Plan"). On November 17, 2004, the Plan became effective, and the Reorganized Debtors emerged from chapter 11. The Proof of Claim:
C. On or about October 7, 2002, Creditor filed Proof of Claim No. 6610 in Enron's chapter 11 case (the "Claim"). The Claim asserts an unsecured claim in the amount of $3,020,769.32 and is allegedly based upon a Guaranty dated July 13, 2001 (the "Guaranty"), executed by Enron in favor of Creditor, covering obligations of Enron Capital Trade Resources Limited ("ECTRL") under a general agreement concerning the mutual delivery of electricity between Creditor and ECTRL (the "ECTRL General Agreement").
D. On February 28, 2005, the Reorganized Debtors filed their Objection to Proof of Claim No. 6610 filed by Creditor (the "Objection").
E. The Parties now desire to resolve the Objection and provide for the allowance of the Claim on the terms and conditions provided herein.
AGREEMENT
NOW, THEREFORE, IT IS HEREBY AGREED BY THE PARTIES, BY AND THROUGH THEIR RESPECTIVE COUNSEL, AS FOLLOWS:
1. Following good faith negotiations between the Parties, Creditor has agreed to have the Claim treated as an unsecured claim in Enron's chapter 11 case as provided below. The Reorganized Debtors' agreement to allowance of the Allowed Claim (defined below) shall therefore fully and finally resolve all claims between the Parties under the Guaranty. It is understood and agreed to by the Parties to this Stipulation and Order that the settlement contained herein is not, and is not to be construed as, an admission by either Party as to the amount owed by ECTRL to Creditor under the ECTRL General Agreement (the "ECTRL Claim"). It being further understood and agreed to by the Parties to this Stipulation and Order that Creditor's determination to enter into this Stipulation and Order is without prejudice to Creditor's right to assert the full amount of the ECTRL Claim, as set forth in the Claim, against ECTRL in its administration proceeding currently pending in the United Kingdom.
2. The Claim shall be allowed (the "Allowed Claim") as a Class 4 General Unsecured Claim (as defined in the Plan) against Enron in the agreed amount of $2,500,000. All Scheduled Liabilities related to Creditor as set forth in the liability schedules filed with the Court by Enron are hereby disallowed in their entirety in favor of the Allowed Claim. Payments and/or distributions on account of the Allowed Claim will be made in the manner provided and at the time set forth in the Plan.
3. Enron and Creditor agree that this Stipulation and Order is the entire understanding of the Parties and is intended to be the complete and exclusive statement of the terms thereof and may not be modified or amended except by a writing signed by all the Parties hereto, which shall be so ordered by the Court.
4. The Stipulation and Order shall become effective and binding as of entry of the Stipulation and Order on the docket as "so ordered" by the Court. In the event that this Stipulation and Order is not approved by the Court, it shall be null and void and have no force and effect.
5. This Court shall retain jurisdiction with respect to any and all issues or disputes that may arise in connection with this Stipulation and Order.
6. This Stipulation and Order shall be binding on the Parties hereto and their respective successors and assigns.
SO ORDERED.