Opinion
Case No. 01-16034 (AJG) Jointly Administered.
June 22, 2005
Martin J. Bienenstock (MB 3001), Brian S. Rosen (BR 0571), David R. Berz (DB 4517), Andrew M. Troop (Pro Hac Vice), WEIL GOTSHAL MANGES LLP, New York, Attorneys for the Reorganized Debtors.
WILTON TRUST, By: WILMINGTON TRUST COMPANY, not in its individual capacity but solely in its capacity as Trustee.
WHEREAS, commencing December 2, 2001 (the "Petition Date") and periodically thereafter, Enron Corp. and certain affiliated entities (prior to the Effective Date (as defined below), the "Debtors") filed voluntary petitions for relief under chapter 11 of title 11 of the United States Code (the "Bankruptcy Code"). The Debtors' chapter 11 cases were procedurally consolidated for administrative purposes. Prior to emergence from chapter 11, the Debtors continued to be authorized to operate their businesses and manage their properties as debtors in possession pursuant to sections 1107 and 1108 of the Bankruptcy Code. 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 July 2, 2004 (the "Plan"). The Plan became effective on November 17, 2004 (the "Effective Date"), and the Debtors emerged from chapter 11 as the Reorganized Debtors;
WHEREAS, on December 12, 2001, in accordance with section 1102 of the Bankruptcy Code, the United States Trustee for the Southern District of New York appointed a statutory committee of unsecured creditors (the "Creditors Committee') for the Debtors' chapter 11 cases. The Creditors' Committee has been reconstituted from time to time;
WHEREAS, the Court established October 15, 2002 as the deadline by which proofs of claim were required to be filed in these cases against Enron Corp. ("Enron"), and numerous other Debtors herein (the "Bar Date");
WHEREAS, on or before the Bar Date, Wilton Trust ("Wilton") filed a proof of claim against Enron North America Corp. ("ENA") which proof of claim has been assigned claim number 18053 (the "ENA Claim"), and filed a proof of claim against Enron which proof of claim has been assigned claim number 18714 (the "Enron Claim" and, collectively with the ENA Claim, the "Wilton Claims"). The Wilton Claims were asserted in unliquidated amounts;
WHEREAS, on March 4, 2005, the Reorganized Debtors filed the Reorganized Debtors' Verified Objection to Proofs of Claim by Wilton Trust Pursuant to the Claims Estimation Procedures (Estimation Objection No. 27) (the "Objection"), in which, inter alia, the Reorganized Debtors asked the Court to estimate the ENA Claim at $10,810,260 and to estimate the Enron Claim at $115,897,161, as and for the reasons set forth in the Objection;
WHEREAS, Wilton disagrees with the Reorganized Debtors' calculation of the ENA Claim and the Enron Claim, and disputes the legal bases advanced by the Reorganized Debtors in the Objection regarding the allowability of the Enron Claim;
WHEREAS, the Reorganized Debtors and Wilton (collectively, the "Parties") have engaged in discussions over this matter and have agreed to resolve the Objection in the manner set forth in this Stipulation and Order.
NOW, THEREFORE, in consideration of the foregoing, the Parties, by their undersigned counsel, stipulate and agree as follows:
AGREEMENT
1. The Recitals are fully incorporated herein by reference.
2. The ENA Claim shall be allowed in the amount of $11,055,000 (the "Allowed ENA Claim") and otherwise disallowed and expunged. The Allowed ENA Claim shall be allowed for all purposes pursuant to section 502 of the Bankruptcy Code, and shall not be subject to subordination, offset or recoupment, reduction, or further objection from or avoidance by the Reorganized Debtors. Distributions on account of the Allowed ENA Claim shall be made in accordance with the Plan, including but not limited to Articles 21 and 32 of the Plan.
3. The Enron Claim shall be allowed in the amount of $136,141,901 (the "Allowed Enron Claim") and otherwise disallowed and expunged. The Allowed Enron Claim shall be allowed for all purposes pursuant to section 502 of the Bankruptcy Code, and shall not be subject to subordination, offset or recoupment, reduction, or further objection from or avoidance by the Reorganized Debtors. Distributions on account of the Allowed Enron Claim shall be made in accordance with the Plan, including but not limited to Articles 21 and 32 of the Plan.
4. All liabilities scheduled by the Debtors that list Wilton as creditor, or that are duplicative of either of the Wilton Claims (whether or not Wilton is listed as the creditor for such scheduled liability), including but not limited to scheduled liability number 100108270 on the Enron Corp. schedule, will be deemed disallowed and expunged from the Debtors' schedules;provided, however, that the foregoing provisions of this Paragraph 4 shall not affect the Allowed ENA Claim or the Allowed Enron Claim.
5. Nothing in this Stipulation and Order shall limit or in any way affect the Reorganized Debtors' rights, claims or objections to claims with respect to (a) any other claim held or asserted by a certificate holder of Wilton or (b) the Wilmington Trust Company (including in its capacity as Trustee of Wilton); provided, however, that the foregoing provisions of this Paragraph 5 shall not affect the Allowed ENA Claim or the Allowed Enron Claim.
6. 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 the Court does not approve this Stipulation and Order by August 19, 2005, it shall be null and void and have no force and effect. In such event, Wilton Trust will have ten business days from the earlier of August 19, 2005 or the entry of an order by the Court denying approval of the Stipulation and Order to file Statements of Claim or Exemption Requests (each as defined in the Estimation Order dated February 18, 2004 described in the Objection) with respect to the Wilton Claims.
7. This Court shall retain jurisdiction with respect to any and all issues or disputes that may arise in connection with this Stipulation and Order.
8. This Stipulation and Order shall be binding on the Parties hereto and their respective successors and assigns.
9. This Stipulation and Order may be executed in any number of counterparts and shall constitute one agreement, binding upon all Parties thereto as if all Parties signed the same document; all facsimile signatures shall be treated as originals for all purposes.
SO ORDERED.