Opinion
Case No. 01-16034 [AJG], Jointly Administered
December 2, 2003
Albert Togut, Neil Berger, Christopher D. Lagow, TOGUT, SEGAL SEGAL LLP, New York, NY, of Bankruptcy Co-Counsel for Enron Corp., et al., Debtors and Debtors in Possession
WHEREAS, beginning on December 2, 2001 (the "Petition Date"), the above-captioned Debtors (the "Debtors") filed voluntary petitions for relief under chapter 11 of title 11 of the United States Code (the "Bankruptcy Code"), and the Debtors continue to operate their businesses and manage their properties as debtors in possession pursuant to sections 1107 and 1108 of the Bankruptcy Code; and
WHEREAS, certain Debtors (the "Debtors") and Waverly Light Power (" Waverly") are parties to certain unexpired agreements pertaining to certain of the Debtors' wind systems; and WHEREAS, on June 24, 2002, pursuant to the Court's April 11, 2002 Amended Order (the "Rejection Order") establishing certain rejection procedures, the Debtors filed and served a Notice of Rejection of an Agreement to Engineer, Procure and Construct (the "Agreement") with Enron Wind Constructors LLC, one of the Debtors herein (the "Agreement") upon Waverly; and
WHEREAS, before the Notice of Rejection became effective pursuant to the terms of the Rejection Order, Waverly filed an Objection to the Notice of Rejection (the "Objection") and asserted, among other things, that it is not a party to the Agreement; and
WHEREAS, on or about October 15, 2002, Waverly filed claim number 18094 (the "Claim") in these cases, on account of any rejection damages that it may have incurred as a result of the Debtors' rejection of the Agreement; and
WHEREAS, upon reconsideration and in the exercise of their sound business judgment, the Debtors have agreed to withdraw the Notice of Rejection.
NOW, THEREFORE, IT IS HEREBY CONSENTED TO AND AGREED by and between the Debtors and Waverly (together, the "Parties"), by their respective undersigned counsel, as follows:
1. This Stipulation shall become effective on the date of entry of the Bankruptcy Court's order approving this Stipulation (the "Effective Date").
2. The Notice of Rejection is withdrawn with respect to the Agreement only, and Waverly's Objection is withdrawn.
3. The Claim be, and it hereby is, withdrawn.
4. All of the Parties' rights and claims with respect to any other agreements between them are not effected by anything in this Stipulation and are hereby expressly reserved.
5. This Stipulation may be signed in facsimile counterparts which, when taken together, shall constitute a single original stipulation with facsimile signatures having the same force and effect as originals.
SO ORDERED.