Opinion
Case No. 01 B 16034 (AJG), (Jointly Administered).
May 12, 2005
Michael Schatzow (Pro hac vice), Frederick W.H. Carter (Pro hac vice), VENABLE LLP, Baltimore, MD, Attorneys for Debtors and Debtors in Possession.
Lindsee P. Granfield (LG-3984), CLEARY GOTTLIEB STEEN HAMILTON LLP, New York, NY, Attorneys for Morgan Stanley Capital Group Inc.
STIPULATION AND ORDER DISALLOWING CLAIM NOS. 14394 AND 14395 FILED BY MORGAN STANLEY CAPITAL GROUP INC. AND RESERVATION OF RIGHTS
Enron Power Marketing, Inc. ("EPMI") and Enron Energy Services, Inc. ("EESI") (collectively, the "Reorganized Debtors") and Morgan Stanley Capital Group Inc. ("MSCG"), by and through their respective counsel, do hereby stipulate as follows and respectfully request this Court so order:
RECITALS
A. EESI and EPMI each filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code. The Debtors' Chapter 11 cases have been procedurally consolidated for administrative purposes on December 2, 2001 (the "Petition Date").
B. The Court established October 15, 2002 as the deadline by which proofs of claim were required to be filed in these cases against the Reorganized Debtors.
C. On or about October 14, 2002, MSCG filed, inter alia, proofs of claim numbered 14394 and 14395 against EESI and EPMI, respectively (together, the "California Energy Litigation Claims").
D. On or about March 10, 2005, the Reorganized Debtors filed the Reorganized Debtors' Objection to Proofs of Claim Nos. 14394 and 14395 of Morgan Stanley Capital Group, Inc. (Docket No. 24276), with respect to the California Energy Litigation Claims (the "Objection").
E. The Debtors and MSCG (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, it is hereby agreed and consented to by the Parties, by their respective counsel, as follows:
STIPULATION AND ORDER
1. The California Energy Litigation Claims shall be disallowed under section 502(e)(1)(B) of the Bankruptcy Code on that ground alone, subject to the parties' reservation of rights contained below.
2. Nothing in this Stipulation and Order is intended to, or shall be construed to (i) affect in any manner MSCG's rights under section 502(j) of the Bankruptcy Code to seek reconsideration of the disallowance of the California Energy Litigation Claims, should the claims no longer be contingent; (ii) constitute or effect a waiver by MSCG of any rights to contest on any grounds any objection to MSCG's seeking reconsideration of the California Energy Litigation Claims under section 502(j) of the Bankruptcy Code, all of which rights are reserved; and/or (iii) be a waiver by any of the Debtors or any party in interest of any rights to object on any grounds to any motion by MSCG seeking reconsideration of the California Energy Litigation Claims under section 502(j) of the Bankruptcy Code, all of which rights are reserved.
3. Nothing in this Stipulation and Order is intended to, or shall be construed to (i) affect in any manner the proofs of claim filed by or on behalf of MSCG other than the California Energy Litigation Claims, (ii) be a waiver by any of the Debtors or any party in interest of any right to object to such other proofs of claim, and/or (iii) constitute or effect a waiver by MSCG of any right to object to the disallowance or expungement of any such other proofs of claim, all of which such rights are reserved.
4. The Parties also expressly agree that in the event the California Energy Litigation Claims become non-contingent after their disallowance by this Stipulation and Order, the Reorganized Debtors may object to those claims on any other basis including, but not limited to, the bases already contained in the Objection notwithstanding Section 21.1 of the Supplemental Modified Fifth Amended Joint Plan of Affiliated Debtors Pursuant to Title 11 of the United States Bankruptcy Code.
5. This Stipulation and Order contains the entire agreement between the Parties regarding the provisions set forth above and may only be modified in writing signed by the Parties or their duly appointed agents.
6. This 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.
7. This Stipulation and Order shall be binding on the Parties and their respective successors and assigns.
8. This Court shall retain jurisdiction with respect to any and all issues or disputes that may arise in connection with this Stipulation and Order.
9. This Stipulation may be executed in counterparts and all executed counterparts taken together shall constitute one document.
IT IS SO ORDERED.