Opinion
Case No. 01-16034 (AJG) Jointly Administered
December 12, 2003
Neil Berger, William M. Reid, TOGUT, SEGAL SEGAL LLP, New York, New York, for Bankruptcy Co-Counsel Debtors and Debtors-in-Possession
Bruce Nathan, LOWENTSTEIN SANDLER, PC, New York, New York, for UNION TANK CAR COMPANY
Clinton P. Hansen, Chicago, Illinois, for FAGELHABER LLC
WHEREAS, on September 25, 2003 this Court approved and "So Ordered" the Stipulation and Order Resolving Motion of Union Tank Car Company ("UTC") for an Order Granting an Allowed Administrative Claim (the "Stipulation"), a copy of which is attached hereto as Exhibit "1"; and
WHEREAS, the Stipulation addressed, among other things, nonpriority, unsecured proofs of claim that UTC filed against Enron Gas Liquids, Inc. ("EGLI") in the Debtors' chapter 11 cases: (i) claim no. 2125 in the amount of $331,283; (ii) claim no. 5989 in the amount of $700,013.84, which amends claim no. 2125 by including the postpetition charges under the Agreement (as defined in the Stipulation) in the amount of $368,730.10; (iii) claim nos. 5990 and 5991, which are duplicates of claim no. 5989 (claim nos. 2125, 5989, 5990 and 5991 collectively, the "Prepetition Claims" and, individually, a "Prepetition Claim"); and
WHEREAS, in respect of the Prepetition Claims, the Stipulation, in decretal paragraph 2, deemed claim nos. 2125,5990 and 5991 expunged, such that the only remaining Prepetition Claim that UTC would hold as against EGLI was claim no. 5989; and
WHEREAS, the Stipulation, in decretal paragraph 3, deemed claim no. 5989 amended, reduced and allowed as an unsecured non-priority claim in EGLI's chapter 11 case in the amount of $331,283.74; and
WHEREAS, it has recently come to the attention of the parties that claim nos. 5990 and 5989 were expunged prior to entry of the Stipulation by an Order dated August 11, 2003 which granted the Debtors' Eighth Omnibus Objection to Claims; and
WHEREAS, the Debtors have objected to claim no. 2125 in the Fifteenth Omnibus Objection to Claims, which Objection has been adjourned by the Debtors from November 6, 2003 to December 11, 2003 as to claim no. 2125; and
WHEREAS, the Stipulation provides that it may be amended by the parties without further order of the Bankruptcy Court; provided, however, that in connection therewith, the parties shall obtain the prior written consent of the Official Committee of Unsecured Creditors (the "Committee"), which consent shall not be unreasonably withheld; and provided, however, that any such amendment shall neither be material in nature, nor change the economic substance of the terms of the Stipulation; and
WHEREAS, EGLI and UTC have agreed, subject to approval of this Court, to amend the Stipulation pursuant to the terms and conditions contained herein, to be consistent with the current status of UTC's Prepetition Claims as a result of the Debtors' objections to claims and/or any order entered by the Bankruptcy Court pursuant thereto; and
WHEREAS, the Committee has consented in writing to this amendment to the Stipulation; and
WHEREAS, the parties hereto do not intend the Amendment to be material in nature or to change the economic substance of the terms of the Stipulation.
NOW, THEREFORE, EGLI and UTC hereby agree and stipulate as follows:
1. Decretal paragraph nos. 2 and 3 of the Stipulation are deleted in their entirety and replaced by the following two paragraphs:
a. Claim no. 2125 filed by UTC against EGLI in the Debtors' chapter 11 cases is deemed expunged, such that the only remaining Prepetition Claim that UTC holds as against EGLI is claim no. 5991.
b. Claim no. 5991, in the amount of $700,013.84, is hereby deemed amended, reduced and allowed as an unsecured, non-priority claim in EGLI's chapter 11 case in the amount of $331,283.74 (the "UTC Prepetition Claim").
2. Except for the amendment (the "Amendment") set forth in paragraph 1 above, all of the terms of the Stipulation shall remain in full force and effect and are not modified hereby.
3. This Stipulation shall be binding upon the parties hereto and their respective successors and assigns.
4. The signatories to this Stipulation represent that they are authorized to enter into this Stipulation.
5. This Stipulation may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more such counterparts have been signed by each of the parties and delivered to the other party. Facsimile signatures shall be binding to the same effect as originals.
SO ORDERED