Opinion
Case No. 01-16034 (AJG), Jointly Administered.
August 24, 2005
SCANA ENERGY TRADING and SOUTH CAROLINA ELECTRIC GAS, by and through their counsel, MOORE VAN ALLEN, PLLC, David B. Wheeler, MOORE VAN ALLEN, PLLC, Charleston, SC, ATTORNEYS FOR SCANA ENERGY TRADING and SOUTH CAROLINA ELECTRIC GAS.
REORGANIZED DEBTORS, by and through their counsel, WEIL GOTSHAL MANGES LLP, Martin J. Bienenstock (MB 3001), Brian S. Rosen (BR 0571), Melanie Gray (Pro Hac Vice), WEIL GOTSHAL MANGES LLP, New York, New York, ATTORNEYS FOR REORGANIZED DEBTORS.
Enron Capital Trade Resources ("ECTRIC") and Enron North America Corp. ("ENA"), as reorganized debtors, and South Carolina Electric Gas, as Agent for Genco, ("SCEG") and SCANA Energy Trading ("SET") ("Creditors", and together with ECTRIC and ENA, the "Parties"), by and through their respective undersigned counsel, hereby stipulate and agree as follows:
RECITALS:
Procedural Background:
A. On December 2, 2001, and from time to time thereafter, Enron Corp. and certain of its direct and indirect subsidiaries (collectively, the "Debtors") filed voluntary petitions for relief under chapter 11 of title 11 of the United States Code (the "Bankruptcy Code").
References to the Debtors include the Reorganized Debtors (as defined in the Plan (defined hereafter)), where appropriate.
B. On July 15, 2004, the Court entered an order confirming the Debtors' 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 Plan became effective.
The Proof of Claim:
C. On or about October 15, 2002, SCEG filed a proof of claim against ENA's chapter 11 case in the amount of $9,544,013.69, which was assigned Claim No. 16616 (the "SCEG Claim").
D. On or about October 15, 2002, SET filed a proof of claim against ECTRIC's chapter 11 case in the amount of $10,850.00, which was assigned Claim No. 18912 (the "First SET Claim").
E. On or about October 15, 2002, SET filed a proof of claim against ENA's chapter 11 case in the amount of $133,600.00, which was assigned Claim No. 19279 (the "Second SET Claim", and collectively with the "SCEG Claim and the First SET Claim, the "Claims").
F. On or about July 29, 2004, the Reorganized Debtors filed their Thirty-Eighth Omnibus Objection (No Amount Due Per Debtors Books and Records and Insufficient Proof) (the "38th Objection"), pursuant to which the Reorganized Debtors sought to have the SCEG, Claim No. 16616, disallowed and expunged. See Docket No. 20045.
G. On or about August 31, 2004, SCEG filed its Response to the 38th Objection. See Docket No. 20619.
H. On or about September 10, 2004, the Reorganized Debtors filed their Forty-Third Omnibus Objection (No Amount Due Per Debtors Books and Records and Insufficient Proof) (the "43rd Objection"), pursuant to which the Reorganized Debtors sought to have the First SET Claim, Claim No. 18912, disallowed and expunged. See Docket No. 20760.
I. On or about October 11, 2004, SET filed its Response to the 43rd Objection. See Docket No. 21355.
J. On or about January 27, 2005, Reorganized Debtors withdrew its objection without prejudice, to the SCEG Claim under the 38th Objection. See Docket No. 23240.
K. On or about January 27, 2005, Reorganized Debtors withdrew its objection without prejudice, to the First SET Claim under the 43rd Objection. See Docket No. 23239.
L. On or about January 31, 2005, the Reorganized Debtors filed their Seventy-Seventh Omnibus Objection (No Amount Due Per Debtors Books and Records and Insufficient Proof) (the "77th Objection"), pursuant to which the Reorganized Debtors sought to have the Second SET Claim, Claim No. 19279, disallowed and expunged. See Docket No. 23295.
M. On or about March 3, 2005, SET filed its Response to the 77th Objection (the "77th Response"). See Docket No. 24029.
N. On or about March 11, 2005, the Reorganized Debtors filed their Ninety-First Omnibus Objection (No Amount Due Per Debtors Books and Records and Insufficient Proof) (the "91st Objection"), pursuant to which the Reorganized Debtors objected to the First SET Claim, Claim No. 18912. See Docket no. 24359.
O. On or about March 11, 2005, the Reorganized Debtors filed their Ninety-Second Omnibus Objection (Modify and Allow) (the "92nd Objection", and collectively with the 77th Objection and the 91st Objection, the "Objections"), pursuant to which the Reorganized Debtors sought to have the SCEG Claim reduced and allowed. See Docket No. 24362.
P. On or about April 13, 2005, SET filed its Response to the 91st Objection (the "91st Response"). See Docket no. 25168.
Q. On or about April 13, 2005, SCEG filed its Response to the 92nd Objection (the "92nd Response", and collectively with the 77th Response and the 91st Response, the "Responses"). See Docket No. 25170.
R. The Parties now desire to resolve the Objections and the Responses, with regard to the Claims and provide for the allowance of the SCEG Claim and the expungement and withdrawal of the First SET Claim and the Second SET 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. The SCEG Claim, Claim No. 16616, shall be allowed as a General Unsecured Claim (as defined in the Plan) in the amount of $8,735,246.43 against ENA (the "Allowed Claim") with all deductions and offsets being deemed taken or made.
2. The Parties agree that the First SET Claim and Second SET Claim, Claim Nos. 19279 and 18912 respectively, will be disallowed and expunged in full satisfaction of any sums due the Reorganized Debtors by SET.
3. All scheduled liabilities related to the Creditors as set forth in the Schedules (as defined in the Plan) are hereby disallowed in their entirety; provided, however, that nothing herein shall alter the effect or terms of that certain Stipulation and Order Resolving Reorganized Debtors' Objection to Proof of Claim No. 18913 Filed by South Carolina Electric and Gas Company, dated May 16, 2005. Docket No. 25719.
4. ENA and ECTRIC waive, release, and forever discharge SCEG as agent for Genco, Genco, and SET and their affiliates and each of their past, present, and future officers, directors, partners, members, employees, agents, and servants from any and all claims, obligations, damages, actions, causes of action, and liabilities of whatsoever kind, nature, character, and description, whether in law or equity, whether sounding in tort, contract, or under other applicable law, whether known or unknown, and whether anticipated or unanticipated, of or to ENA and ECTRIC, that ENA and ECTRIC and their successors and assigns ever had, now have, or may ever have arising from any event, transaction, matter, circumstance, or fact in any way arising out of, arising as a result of, related to, with respect to, in connection with, or based in whole or in part on the agreements described in the Claims and under the agreements giving rise to the Claims (the "Agreements"); provided, however, that ECTRIC and ENA do not waive or release SCEG, as agent for Genco, Genco or SET from their obligations under this Stipulation and Order; and provided further, that nothing herein shall alter the effect or terms of that certain Stipulation and Order Resolving Reorganized Debtors' Objection to Proof of Claim No. 18913 Filed by South Carolina Electric and Gas Company, dated May 16, 2005. Docket No. 25719.
5. SCEG, as agent for Genco, Genco, and SET waive, release, and forever discharge ENA and ECTRIC, and their affiliates and each of their past, present, and future officers, directors, partners, members, employees, agents, and servants from any and all claims, obligations, damages, actions, causes of action, and liabilities of whatsoever kind, nature, character, and description, whether in law or equity, whether sounding in tort, contract, or under other applicable law, whether known or unknown, and whether anticipated or unanticipated, of or to SCEG, as agent for Genco, Genco, and SET, and that SCEG, as agent for Genco, Genco, and SET and their successors and assigns ever had, now have, or may ever have arising from any event, transaction, matter, circumstance, or fact in any way arising out of, arising as a result of, related to, with respect to, in connection with, or based in whole or in part on the Agreements; provided, however, that SCEG, as agent for Genco, Genco, and SET do not waive or release ENA and ECTRIC from their obligations under this Stipulation and Order and provided further, that nothing herein shall alter the effect or terms of that certain Stipulation and Order Resolving Reorganized Debtors' Objection to Proof of Claim No. 18913 Filed by South Carolina Electric and Gas Company, dated May 16, 2005. See Docket No. 25719.
6. The Parties agree that this Stipulation and Order is the entire understanding of the Parties and is intended to be the complete and exclusive statement of the terms thereof and 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. The Objection to the Claims as contained in the Objections and the Responses are resolved as provided herein.
9. This Court shall retain exclusive jurisdiction with respect to any and all issues or disputes that may arise in connection with this Stipulation and Order.
10. This Stipulation and Order shall be binding on the Parties hereto and their respective successors and assigns.
11. This Stipulation and Order may be executed in any number of counterparts and shall constitute one agreement, binding upon all Parties thereto as if all Parties signed the same document; all facsimile signatures shall be treated as originals for all purposes.
SO ORDERED.