Opinion
Case No. 01-16034 (AJG), Jointly Administered, Adversary Proceeding No. 05-1201.
May 16, 2005
Brian S. Rosen (BR 0571), Melanie Gray (Pro Hac Vice), WEIL, GOTSHAL MANGES LLP, New York, New York, Attorneys for Reorganized Debtors.
Robert N.H. Christmas (RC 6189), NIXON PEABODY LLP, New York, New York, Attorneys for Creditors.
This Stipulation (the "Stipulation") is entered into by and among White Pine Energy, LLC ("WPE"), DPC White Pine LLC ("DPCWP"), and Delta Power Company LLC (collectively, "Delta"); and Enron Corp. and Enron North America Corp. ("ENA") (together the "Reorganized Debtors"). Delta and the Reorganized Debtors are referred to herein as the "Parties."
RECITALS
WHEREAS, on December 2, 2001, and on certain dates thereafter (the "Commencement Date"), the Reorganized Debtors commenced cases under chapter 11 of title 11, United States Code (the "Bankruptcy Code"), in the United States Bankruptcy Court for the Southern District of New York (the "Bankruptcy Court");
WHEREAS, at or about the time the Reorganized Debtors filed their bankruptcy case, the Debtors prepared and filed with the Bankruptcy Court liability schedules reflecting sums owed to various third parties, including liabilities owed to Delta (the "Scheduled Liabilities");
WHEREAS, the Reorganized Debtors filed their Fifth Amended Joint Plan of Affiliated Debtors Pursuant to Chapter 11 of the United States Bankruptcy Code, (the "Plan") and accompanying Disclosure Statement for Fifth Amended Joint Plan of Affiliated Debtors Pursuant to Chapter 11 of the United States Bankruptcy Code, (the "Disclosure Statement") and the Court approved the adequacy of the Disclosure Statement dated January 9, 2004; and by order, dated July 15, 2004, and supporting findings of fact and conclusions of law entered on such date, the Court confirmed the Plan, as modified, in accordance with section 1129 of the Bankruptcy Code. The Effective Date of the Plan was November 17, 2004;
WHEREAS, Delta has filed Proofs of Claim Numbers 12705, 12711, 12712, 12713, 12714, and 12715 (the "Claims"), seeking indemnification, as well as money damages for alleged conversion, against the Reorganized Debtors;
WHEREAS, the Reorganized Debtors have objected to the Claims, have sought to disallow and expunge the Claims, and have filed a counterclaim for matured debt in the amount of $272,546 through Adversary Proceeding Number 05-1201 (the "Adversary Proceeding"). Delta has not yet filed a response in opposition to the Adversary Proceeding or otherwise responded to the Reorganized Debtors' objections, as a result of the Parties' agreement to adjourn the answer deadline to May 9, 2005; WHEREAS, in light of the foregoing, and to avoid the expense and time of litigation, the outcome of which is uncertain, the Reorganized Debtors and Delta desire, in accordance with the terms set forth herein, to (i) resolve the Reorganized Debtors' counterclaim in the Adversary Proceeding, pursuant to which Delta will endorse cashier's check number 44820 in the amount of $137,889.63, payable to White Pine Energy LLC and dated November 19, 2004 (the "Cashier's Check"), to ENA in full and complete settlement of the Reorganized Debtors' counterclaim for matured debt, and (ii) upon endorsement of the Cashier's Check to ENA, (1) dismiss the Adversary Proceeding with prejudice, (2) disallow and expunge the Claims with prejudice, and (3) disallow and expunge the Scheduled Liabilities.
NOW, THEREFORE, IT IS HEREBY STIPULATED, CONSENTED TO AND AGREED by and between the Parties that:
1. The foregoing recitals are incorporated herein as if fully set forth in the text of this Stipulation.
2. This Stipulation shall not become effective until (i) it is approved and "So Ordered" by the Bankruptcy Court, and (ii) such order becomes final and non-appealable.
3. If the Stipulation does not become effective pursuant to paragraph 2 above, (a) the Stipulation shall be deemed null and void; (b) none of the Parties to the Stipulation shall be deemed to have waived any rights, claims and/or defenses that it may have had that existed before the execution of the Stipulation; (c) the Parties shall be restored to their respective positions immediately before execution of the Stipulation; and (d) neither the Stipulation nor any exhibit, document, or instrument delivered hereunder, nor any statement, transaction, or proceeding in connection with the negotiation, execution, or implementation of the Stipulation, shall be (i) with prejudice to any person or party herein, (ii) deemed to be or construed as an admission by any of the Parties herein of any act, matter, proposition, or merit or lack of merit of any claim or defense, or (iii) referred to or used in any manner or for any purpose in any subsequent proceeding in this action, or in any other action in any court or in any other proceeding.
4. Upon endorsement of the Cashier's Check to ENA, the Adversary Proceeding shall be dismissed by ENA with prejudice, in the form of dismissal attached hereto as Exhibit "A."
5. The Claims shall be and hereby are disallowed and expunged from the claims register.
6. All Scheduled Liabilities, related to Delta as set forth in the liability schedules filed by the Reorganized Debtors with the Bankruptcy Court shall be disallowed and expunged from the claims register. Nothing in this Stipulation is meant to alter or affect in any way the Stipulation entered on April 13, 2005, with respect to the claims of Delta Power Company LLC and other parties in Adversary Proceeding 05-1200.
7. This Stipulation shall be binding upon and shall inure to the benefit of the Parties and their legal representatives, predecessors, successors and assigns.
8. This Stipulation may be executed in counterparts by the Parties by either facsimile or original signatures.
9. This Court shall retain jurisdiction with respect to any and all issues or disputes that may arise in connection with this Stipulation.
10. This Stipulation shall be governed by, construed and enforced in accordance with applicable federal bankruptcy law and the laws of the State of New York.
11. This Stipulation sets forth the entire understanding of the Parties pertaining to the subject matter hereof 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.
SO ORDERED.EXHIBIT "A" TO MOTOWN 9019 STIPULATION
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK
In re : Chapter 11 : ENRON CORP., et al., : Case No. 01-16034 (AJG) : Reorganized Debtors.: Jointly Administered
ENRON NORTH AMERICA CORP.
Plaintiff,
v. Adversary Proceeding
WHITE PINE ENERGY, LLC No. 05-1201
Defendant
NOTICE OF DISMISSAL OF ADVERSARY PROCEEDING NO. 05-1201
Enron North America Corp.("ENA") files its Notice of Dismissal under Federal Rule of Civil Procedure 41 and Bankruptcy Rule 7041.
1. On March 3, 2005, ENA filed this Adversary Proceeding against White Pine Energy, LLC ("WPE") for a matured debt in the amount of $272,546.
2. ENA and WPE have settled their dispute, and a dismissal of the Adversary Proceeding is now warranted. This dismissal is with prejudice.
3. WPE has not filed an answer or motion for summary judgment.
4. All costs, fees, and expenses, including attorneys' fees, are to be borne by the party incurring same.
This __ day of April, 2005.
Respectfully submitted,
By: ______________________
Martin J. Bienenstock (MB 3001) Brian S. Rosen (BR 0571) Melanie Gray (Pro Hac Vice) Scarlett E. Collings (Pro Hac Vice) Weil, Gotshal Manges LLP 767 Fifth Avenue New York, New York 10153 Telephone: (212) 310-8000 Facsimile: (212) 310-8007
ATTORNEYS FOR REORGANIZED DEBTORS