Opinion
Case No. 01-16034 (AJG), Jointly Administered
August 25, 2003
Melanie Gray, WEIL, GOTSHAL MANGES, LLP, New York, NY, for Enron Corp., et. al. as Debtors in Possession
Andrew B. Eckstein (AE-6142), BLANK ROME COMISKY MCCAULEY LLP, New York, New York, for General Cable Corporation
Rocco A. Cavaliere (RC-8686), BLANK ROME COMISKY MCCAULEY LLP, New York, New York, for General Cable Corporation
Enron Energy Services Operations, Inc., as debtor in possession ("EESO" or the "Debtor"), and General Cable Corporation ("General Cable"), by and through their respective Counsel, hereby stipulate and agree as follows: RECITALS
A. On or about September 30, 1999, General Cable and EESO entered into an Energy Management and Savings Program Agreement (the "Agreement").
B. The parties may have mutual obligations to one another relative to the parties' performance under the Agreement prior to the Petition Date.
C. General Cable has alleged that EESO repudiated and terminated the Agreement prior to the Petition Date.
D. General Cable has filed a Motion for Relief From the Automatic Stay to Allow For Setoff of Mutual Obligations and For Other Ancillary Relief (the "Motion").
E. Pursuant to the Motion, General Cable has, inter alia, asserted that EESO failed to exercise its right of first refusal to provide energy to General Cable's facility in Bonham, Texas, where the supply of energy has recently become deregulated (the "Right of First Refusal").
F. Pursuant to the Motion, General Cable sought, inter alia, (a) a determination that EESO waived the Right of First Refusal so as to enable General Cable to commit, on a long-term basis, to the acquisition of energy at its Bonham, Texas facility, (b) damages under the Agreement as a result of EESO's alleged breach of the Agreement, and (c) an order allowing it to setoff amounts it may owe to EESO against amounts which it claims are owed by EESO to General Cable.
G. The parties entered into a Stipulation on or about January 14, 2002 which was so ordered by the Court on January 16, 2002 pursuant to which, inter alia, (a) EESO stipulated and acknowledged that it had waived the Right of First Refusal, (b) the parties agreed that payments by General Cable directly to energy suppliers to assure that supply of energy not be interrupted would not be deemed a violation of the automatic stay pursuant to Bankruptcy Code section 362, (c) the hearing date on the Motion was adjourned to February 19, 2002 and the parties agreed to a schedule for filing of further pleadings with respect to the Motion, and (d) the parties stipulated to an extension of the automatic stay notwithstanding the provisions of section 362(e) of the Bankruptcy Code.
H. The parties entered into a subsequent Stipulation on or about February 11, 2002 which was so ordered by the Court on February 13, 2002 pursuant to which, inter alia, (a) EESO issued and delivered to General Cable a Notice of Rejection of the Agreement effective February 20, 2002, (b) the hearing date on the Motion was adjourned to September 18, 2002 and the parties agreed to a schedule for filing of further pleadings with respect to the Motion, and (c) the parties stipulated to an extension of the automatic stay notwithstanding the provisions of section 362(e) of the Bankruptcy Code.
I. The parties entered into a subsequent Stipulation on or about August 28, 2002 which was so ordered by the Court on September 6, 2002 pursuant to which, inter alia, (a) the hearing date on the Motion was adjourned to November 14, 2002 and the parties agreed to a schedule for filing of further pleadings with respect to the Motion, and (b) the parties stipulated to an extension of the automatic stay notwithstanding the provisions of section 362(e) of the Bankruptcy Code.
J. On or about October 10, 2002, General Cable filed its proof of claim (the "General Cable Claim") against EESO in the amount of $8,058,420, asserting, inter alia, that the claim is secured to the extent of $1,950,632 representing the alleged amount of EESO's counterclaim against General Cable (the "EESO Offsetting Claim").
K. On or about October 31, 2002, the Parties entered into a Stipulation (the "October Stipulation") which was so ordered by the Court on November 4, 2002, pursuant to which (a) the hearing date on the Motion was adjourned to December 12, 2002, (b) the parties stipulated to an extension of the automatic stay notwithstanding the provisions of section 362(e) of the Bankruptcy Code, and (c) the parties agreed to further extend the hearing date approximately 45 days in the event that EESO and the Official Committee of Unsecured Creditors (the "Committee") fail to succeed in amicably resolving the Motion with General Cable.
L. Pursuant to the October Stipulation, on or about December 10, 2002, the Parties entered into a Stipulation which was so ordered by the Court on December 12, 2002, pursuant to which, inter alia, (a) the hearing date on the Motion was adjourned to January 30, 2003 and (b) the parties stipulated to an extension of the automatic stay notwithstanding the provisions of section 362(e) of the Bankruptcy Code, and, on or about January 14, 2003, the Parties entered into a Stipulation which was so ordered by the Court on January 15, 2003, pursuant to which, inter alia, (a) the hearing date on the Motion was adjourned to March 13, 2003 and (b) the parties stipulated to an extension of the automatic stay notwithstanding the provisions of section 362(e) of the Bankruptcy Code.
M. On or about January 29, 2003 the Parties entered into a Stipulation which was so ordered by the Court on February 3, 2003, pursuant to which (a) the hearing date on the Motion was adjourned to April 10, 2003 and (b) the parties stipulated to an extension of the automatic stay notwithstanding the provisions of section 362(e) of the Bankruptcy Code.
N. On or about March 25, 2003 the Parties entered into a Stipulation which was so ordered by the Court on March 26, 2003, pursuant to which (a) the hearing date on the Motion was adjourned to May 15, 2003 and (b) the parties stipulated to an extension of the automatic stay notwithstanding the provisions of section 362(e) of the Bankruptcy Code.
O. On or about May 2, 2003 the Parties entered into a Stipulation which was so ordered by the Court on May 5, 2003, pursuant to which (a) the hearing date on the Motion was adjourned to July 24, 2003 and (b) the parties stipulated to an extension of the automatic stay notwithstanding the provisions of section 362(e) of the Bankruptcy Code.
P. On or about July 11, 2003 the Parties entered into a Stipulation which was so ordered by the Court on July 15, 2003, pursuant to which (a) the hearing date on the Motion was adjourned to September 4, 2003 and (b) the parties stipulated to an extension of the automatic stay notwithstanding the provisions of section 362(e) of the Bankruptcy Code.
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED that in lieu of the Court's consideration of the remaining aspects of the Motion on September 4, 2003, the parties have agreed as follows:
1. The hearing date with respect to the remaining aspects of the Motion shall be adjourned until September 25, 2003 subject to the availability of the Court.
2. EESO and the Official Committee of Unsecured Creditors shall have until September 4, 2003 to object to the Motion.
3. To the extent General Cable shall determine that a reply shall be required with respect to any such objections, it shall file and serve its reply no later than September 18, 2003.
4. Notwithstanding the provisions of section 362(e) of the Bankruptcy Code, the parties agree to continue the automatic stay pursuant to section 362 of the Bankruptcy Code, without prejudice to EESO or General Cable, until the Court has made a determination with respect to the remaining aspects of the Motion after a hearing considering the Motion or by entry of an agreed order with respect to the relief requested in the Motion; provided, however, that pending such determination, General Cable's right of setoff and all parties' rights to object to such assertions are preserved and General Cable is relieved from any obligation to pay any claims which may be asserted by EESO.