Opinion
Case No. 01-16034 (AJG), Jointly Administered.
June 21, 2005
John F. Higgins, PORTER HEDGES, LLP, Houston, Texas, ATTORNEYS FOR TORCH ENERGY TM, INC. PLAINS EXPLORATION PRODUCTION COMPANY, MISSION RESOURCES COMPANY, MILAM ENERGY, L.P., TORCH EP COMPANY, AND TORCH ENERGY MARKETING, INC.
Martin J. Bienenstock (MB 3001), Brian S. Rosen (BR 0571), Melanie Gray (Pro Hac Vice), Stephen T. Loden (Pro Hac Vice), WEIL GOTSHAL MANGES LLP, New York, New York, ATTORNEYS FOR THE REORGANIZED DEBTORS.
Enron Corp. ("Enron") and certain of its affiliates (collectively, the "Reorganized Debtors"), and Torch Energy TM, Inc. ("Torch"), Plains Exploration Production Company ("Plains") (successor-in-interest to Nuevo Energy, Co. ("Nuevo")), Mission Resources Company ("Mission"), Milam Energy, L.P. ("Milam"), Torch EP Company ("Torch EP"), and Torch Energy Marketing, Inc. ("TEMI") (collectively the "Claimants") (the Claimants together with the Reorganized Debtors, the "Parties") by and through their respective undersigned counsel, hereby stipulate and agree as follows:
RECITALS :
Procedural Background:
A. On December 2, 2001 (the "Petition Date") and from time to time thereafter, the Reorganized Debtors filed voluntary petitions for relief under chapter 11 of Title 11 of the United States Code (the "Bankruptcy Code"). From and after the Petition Date and through the Effective Date (defined below), the Reorganized Debtors managed and operated their businesses as debtors-in-possession pursuant to Bankruptcy Code sections 1107 and 1108.
B. On July 15, 2004, the Court entered an order (the "Confirmation Order") confirming the Supplemental Modified Fifth Amended Joint Plan of Affiliated Debtors Pursuant to Chapter 11 of the United States Bankruptcy Code, dated as of July 2, 2004 (the "Plan"). On November 17, 2004 (the "Effective Date"), the Plan became effective, and the Reorganized Debtors emerged from chapter 11.
The Torch Proof of Claims:
C. On October 15, 2002, Torch filed proof of claim number 19992 against Enron Corp. ("ENE"). In claim no. 19992, Torch sought to recover a $4,591,468.22 general unsecured claim against ENE allegedly arising from ENE's guarantee of payment on natural gas sales contracts entered into by and between ENE's wholly owned subsidiaries and Torch.
D. On October 15, 2002, Torch, as agent for Nuevo, filed proof of claim number 19993 against ENA Upstream Company, LLC ("ENAU"). In claim no. 19993, Torch sought to recover a $111,486.56 secured claim against ENAU, allegedly arising from goods provided to ENAU by Torch.
E. On October 15, 2002, Torch, as agent for Mission, filed proof of claim number 19994 against ENAU. In claim no. 19994, Torch sought to recover a $1,986,449.33 secured claim against ENAU allegedly arising from goods provided to ENAU from Torch.
F. On October 15, 2002, Torch, as agent for Milam, filed proof of claim number 19995 against ENAU. In claim no. 19995, Torch sought to recover a $218,394.18 secured claim from ENAU, allegedly arising from goods provided to ENAU from Torch.
G. On October 15, 2002, Torch filed proof of claim number 19996 against ENAU. In claim no 19996, Torch sought to recover a $1,520,938.15 general unsecured claim from ENAU, allegedly arising from goods provided to ENAU from Torch.
H. On October 15, 2002, Torch, as agent for Torch EP Company, filed proof of claim number 19997 against Enron North America Corp. ("ENA"). In claim no. 19997, Torch sought to recover a $754,200.00 secured claim from ENA, allegedly arising from goods provided to ENA from Torch.
I. On October 15, 2002, TEMI filed proof of claim number 19998 against ENA. In claim no. 19998, TEMI sought to recover a $323,432.60 general unsecured claim from ENA, allegedly arising from a debt owed by ENA to TEMI.
J. On October 15, 2002, TEMI filed proof of claim number 19999 against ENE. In claim no. 19999, Torch sought to recover a $323,432.60 general unsecured claim against ENE allegedly arising from ENE's guarantee of payment on amounts owed by one of ENE's wholly owned subsidiaries to TEMI.
K. Claim numbers 19992, 19993, 19994, 19995, 19996, 19997, 19998, and 19999 are collectively referred to as the "Torch Proofs of Claim."
L. On November 14, 2004, the Reorganized Debtors filed the Debtors' Sixty-First Omnibus Objection Filed In Aid Of Consummation Of Joint Plan To Proofs Of Claim Filed As Secured Claims (Claims Asserting First Purchaser Liens Under State Law) (the "Sixty-First Omnibus Objection"), asserting objections to proof of claim numbers 19993, 19994, 19995, and 19997.
M. On December 17, 2004, the Reorganized Debtors filed the Reorganized Debtors' Seventy-First Omnibus Objection to Proofs of Claim and Request for Modification and Allowance of Claims (the "Seventy-First Omnibus Objection"), asserting objections to proof of claim number 19992, 19998, and 19999.
N. The Parties now desire to resolve the Torch Proofs of Claim and the Sixty-First Omnibus Objection and the Seventy-First Omnibus Objection as they relate to the Torch Proofs of Claim on the terms and conditions provided herein.
AGREEMENT
NOW, THEREFORE, IT IS HEREBY AGREED BY THE PARTIES, BY AND THROUGH THEIR RESPECTIVE COUNSEL, AS FOLLOWS:
1. Following good faith negotiations, the Parties have agreed to treat the Torch Proofs of Claim as provided below. This agreement shall fully and finally resolve the Torch Proofs of Claim, but shall have no effect whatsoever on any other claims or matters now pending between the Parties.
2. The Parties have now agreed that each of the Torch Proofs of Claim will be allowed as follows (collectively, the "Allowed Claims"):
a. Proof of Claim number 19992 shall be allowed as an Enron Guaranty Claim as defined by Section 1.112 of the Plan in the agreed amount of $3,369,192.00; and
b. Proof of Claim number 19993 shall be allowed as an allowed secured claim in the agreed amount of $104,119.79 in the ENAU chapter 11 case and as an allowed general unsecured claim in the agreed amount of $7,366.77 in the ENAU chapter 11 case; and
c. Proof of Claim number 19994 shall be allowed as an allowed secured claim in the agreed amount of $600,000.00 in the ENAU chapter 11 case, and as an allowed general unsecured claim in the agreed amount of $1,386,449.33 in the ENAU chapter 11 case; and
d. Proof of claim number 19995 shall be allowed as an allowed, secured claim in the agreed amount of $54,598.55 in the ENAU chapter 11 case, and as an allowed general unsecured claim in the agreed amount of $163,795.63 in the ENAU chapter 11 case; and
e. Proof of Claim number 19996 shall be allowed as an allowed general unsecured claim in the agreed amount of $1,520,938.15 in the ENAU chapter 11 case; and
f. Proof of Claim number 19997 shall be allowed as an allowed secured claim in the agreed amount of $99,681.50 in the ENA chapter 11 case and as an allowed general unsecured claim in the agreed amount of $299,044.50 in the ENA chapter 11 case; and
g. Proof of Claim number 19998 shall be allowed as an allowed general unsecured claim in the agreed amount of $323,432.60 in the ENA chapter 11 case; and
h. Proof of Claim number 19999 shall be allowed as an Enron Guaranty Claim as defined by Section 1.112 of the Plan in the agreed amount of $323,432.60.
3. The portions of the Allowed Claims that are allowed secured claims are collectively referred to herein as the "Allowed Secured Claims." The portions of the Allowed Claims that are allowed unsecured claims are collectively referred to herein as the "Allowed Unsecured Claims."
4. Pursuant to section 21.3 of the Plan, distributions for the full amount of the Allowed Secured Claims and initial distributions for certain portions of the Allowed Unsecured Claims that have been previously deposited into the Disputed Claims Reserve (as such term is defined in the Plan) will be made within 90 days of the date upon which this Stipulation and Order is "so ordered" by the Court and entered on the docket in the Enron chapter 11 cases. Subsequent distributions on any remaining portions of the Allowed Unsecured Claims will be made pursuant to section 32.1 of the Plan.
5. Any and all scheduled liabilities and other claims related to the Torch Proofs of Claim as asserted by Torch and/or as set forth in the liability schedules filed with the Court are hereby disallowed in their entirety in favor of the Allowed Claims.
6. The Parties agree that this Stipulation and Order: (i) resolves all disputes between the Parties concerning the Torch Proofs of Claim including, but not limited to, any claims for interest and/or attorneys' fees arising out of or related to the Torch Proofs of Claim, (ii) is the entire understanding of the Parties; (iii) is intended to be the complete and exclusive statement of the terms thereof; and (iv) may not be modified or amended except by a writing signed by all the Parties hereto, which shall be so ordered by the Court.
7. The 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. In the event that this Stipulation and Order is not approved by the Court, it shall be null and void and have no force and effect.
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 and Order shall be binding on the Parties hereto and their respective successors and assigns.
SO ORDERED.