Opinion
Case No. 01-16034 (AJG), Jointly Administered.
June 1, 2005
Luc A. Despins (LD 5141), Matthew S. Barr (MB 9170), James H. MacInnis (JM 5947), MILBANK, TWEED, HADLEY McCLOY LLP, New York, New York, Attorneys for Reorganized Debtors.
Mark D. Silverschotz, ANDERSON KILL OLICK, P.C., New York, New York, Attorneys for The International Oil Pollution Compensation Fund 1992.
This stipulation and consent order (the "Stipulation and Consent Order") is entered into by and between (a) Enron Capital Trade Resources International Corp. ("ECTRIC"), one of the above-captioned Reorganized Debtors, and (b) International Oil Pollution Compensation Fund 1992 (the "Fund" and, together with ECTRIC, the "Parties").
RECITALS
1. On February 11, 2002 (the "Petition Date"), ECTRIC filed a voluntary petition under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101- 1330 (as amended, the "Bankruptcy Code"), in the United States Bankruptcy Court for the Southern District of New York (the "Court").
2. Confirmation of Plan. By order, dated July 15, 2004 (the "Confirmation Order"), this Court confirmed the Supplemental Modified Fifth Amended Joint Plan Of Affiliated Debtors Pursuant To Chapter 11 Of The United States Bankruptcy Code, for ECTRIC and its affiliated debtors, dated July 2, 2004 (as amended, the "Plan"). The Effective Date (as defined in the Plan) of the Plan occurred on November 17, 2004. Paragraph 60(e) of the Confirmation Order provides that the Court retains jurisdiction "to hear and determine any timely objections to Administrative Expense Claims . . . after the Confirmation Date, . . . and to allow, disallow, determine, liquidate, classify, estimate or establish priority of or secured or unsecured status of any Claim, in whole or in part."
3. Deadline to File Administrative Expense Requests. Pursuant to the Confirmation Order, all requests for payment of administrative expenses were required to be filed with the Court and served by January 18, 2005.
4. Fund's Administrative Expense Request. On January 14, 2005, the Fund filed the Amended Application Of The International Oil Pollution Compensation Fund 1992 For Payment Of Expenses Of Administration (Docket No. 23004), alleging an administrative expense in the amount of $201,482.56 on account of contributions allegedly owing pursuant to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1992 (the "Administrative Expense Request").
The Administrative Expense Request superseded and replaced in all respects the Application Of The International Oil Pollution Compensation Fund 1992 For Payment Of Expenses Of Administration, filed on January 7, 2005 (Docket No. 22933).
5. ECTRIC has reviewed the Administrative Expense Request to determine whether and to what extent it should be granted. Based on its review, ECTRIC disputes the validity and merits of the Administrative Expense Request. However, to avoid the cost, uncertainty and delay that would attend litigation, the Parties negotiated a consensual resolution of the Administrative Expense Request, such that the Fund will have an Allowed Administrative Expense Claim (as defined in the Plan) in the amount of $100,741.28.
AGREEMENT
NOW, THEREFORE, in consideration for the mutual covenants and agreements set forth in the Stipulation and Consent Order, and with the intent to be legally bound, it is hereby agreed between the Parties as follows, and binding on all parties in interest in these cases as of the Effective Date (as defined below) of this Stipulation and Consent Order:
A. Allowed Administrative Expense Claim. The Administrative Expense Request shall be allowed in the aggregate amount of $100,741.28 as an Allowed Administrative Expense Claim against ECTRIC under the Plan (the "Administrative Expense Claim").
B. Binding Nature. This Stipulation and Consent Order (i) shall inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns and (ii) shall be binding upon and enforceable against the Parties and their respective successors and assigns upon the entry of an order of the Court approving this Stipulation and Consent Order.
C. Court Approval. Notwithstanding anything to the contrary herein, this Stipulation and Consent Order is expressly subject to and contingent upon its approval by the Court. If this Stipulation and Consent Order, or any portion hereof, is not approved by the Court or if it is overturned or modified on appeal, this Stipulation and Consent Order shall be of no further force and effect, and, in such event, neither this Stipulation and Consent Order nor any negotiations and writings in connection with this Stipulation and Consent Order shall in any way be construed as or deemed to be evidence of or an admission on behalf of any Party hereto regarding any claim or right that such Party may have against any other party hereto.
D. Release Of ECTRIC Released Parties By Fund Releasing Parties. Upon payment of the Administrative Expense Claim, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Fund on behalf of itself and, to the extent it has the authority or capacity, its present and former shareholders, officers, directors, employees, partners, agents, representatives, subsidiaries, affiliates, successors, and assigns (collectively, the "Fund Releasing Parties"), hereby unequivocally release and forever discharge ECTRIC, and any of its respective predecessors, affiliates, successors, assigns, trustees, agents, consultants, heirs, directors, officers, employees, shareholders, executives, servants, attorneys, accountants, partners, representatives, and other related persons and entities, in any capacity whatsoever (collectively, the "ECTRIC Released Parties"), from any and all rights, claims, demands, actions, liabilities, causes of action, costs, losses, liens, debts, damages, dues, accounts, sum or sums of money, covenants, contracts, agreements, expenses, judgments, extents, executions, awards, bonds, bills, specialties, reckonings, demands and suits of every nature, kind and description whatsoever, either at law, in admiralty, in equity or otherwise, whether known or unknown, foreseen or unforeseen, suspected or unsuspected, fixed or contingent, disclosed or undisclosed, matured or un-matured, material or immaterial, whether individual, class, derivative or representative, and whether or not asserted or raised and existing, or alleged to exist or to have existed (collectively, the "Claims"), which any of the Fund Releasing Parties ever had, now have or may have against the ECTRIC Released Parties arising out of, in connection with or relating to the Administrative Expense Request, but excluding any Claims arising out of, in connection with or relating to this Stipulation and Consent Order.
E. Release Of Fund Released Parties By ECTRIC Releasing Parties. Upon payment of the Administrative Expense Claim, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, ECTRIC, on behalf of itself, its predecessors, and, to the extent they have the authority or capacity, its present and former shareholders, officers, directors, employees, partners, agents, representatives, subsidiaries, affiliates, successors, and assigns (collectively, the "ECTRIC Releasing Parties"), hereby unequivocally release and forever discharge the Fund, and any of its affiliates, successors, assigns, trustees, agents, consultants, heirs, directors, officers, employees, shareholders, executives, servants, attorneys, accountants, partners, representatives, and other related persons and entities, in any capacity whatsoever (collectively, the "Fund Released Parties"), from any and all Claims which any of the ECTRIC Releasing Parties ever had, now have or may have against the Fund Released Parties arising out of, in connection with or relating to the Administrative Expense Request, but excluding any Claims arising out of, in connection with or relating to this Stipulation and Consent Order.
F. Non-Severability. The provisions of this Stipulation and Consent Order are mutually interdependent, indivisible and non-severable.
G. Entire Agreement. This Stipulation and Consent Order constitutes the entire agreement between the Parties hereto with respect to the subject matter hereof and supersedes all prior settlement agreements and understandings, written and oral, between the Parties with respect to the subject matter hereof. This Stipulation and Consent Order may not be modified or amended except by a writing signed by the Parties. All representations, warranties, promises, inducements or statements of intention made by the Parties hereto are embodied in this Stipulation and Consent Order, and no Party hereto shall be bound by, or liable for, any alleged representation, warranty, inducement or statement of intention that is not expressly embodied herein. The Parties represent and warrant that this Stipulation and Consent Order discloses all of the terms of the Parties' agreement with respect to the subject matter hereof.
H. Counterparts; Effective Date. This Stipulation and Consent Order may be executed in one or more counterparts and by facsimile, 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 all Parties, and the Court has entered the Stipulation and Consent Order on the docket of the Court. The date on which all of the above conditions in this paragraph "H" have occurred shall be the effective date of this Stipulation and Consent Order (the "Effective Date").
I. Authority. The Parties hereto represent and warrant to each other that: (i) the signatories to this Stipulation and Consent Order are authorized to execute this Stipulation and Consent Order; (ii) each has full power and authority to enter into this Stipulation and Consent Order; and (iii) this Stipulation and Consent Order is duly executed and delivered, and constitutes a valid and binding agreement in accordance with its terms. The Fund hereby represents and warrants that the Fund is the lawful holder of the Administrative Expense Request and has not and will not transfer the Administrative Expense Request or the Administrative Expense Claim to any party.
J. Costs. Each Party hereto shall bear its own expenses incurred in connection with the negotiation, execution and Court approval of this Stipulation and Consent Order.
K. Governing Law. This Stipulation and Consent Order shall be governed by, and construed in accordance with, the Bankruptcy Code and the laws of the state of New York, without regard to any principles of choice of law thereof which would require the application of the law of any other jurisdiction.
L. Retention of Jurisdiction. The Court shall retain exclusive jurisdiction to interpret, implement and enforce the provisions of this Stipulation and Consent Order, and the Parties hereby consent to exclusive jurisdiction of the Court with respect thereto. The Parties waive arguments of lack of personal jurisdiction or forum non-conveniens with respect to the Court.
M. Headings. The descriptive headings of the several sections of this Stipulation and Consent Order are inserted for convenience of reference only and do not constitute a part of this Stipulation and Consent Order.
IN WITNESS WHEREOF, the Parties have executed this Stipulation and Consent Order on May 18, 2005.
So Ordered.