Opinion
Case No. 01-16034 (AJG) Jointly Administered.
May 13, 2005
SECOND SUPPLEMENTAL ORDER RESOLVING THE AMENDED SEVENTY-FOURTH OMNIBUS OBJECTION TO PROOF OF CLAIM
Upon consideration of the Reorganized Debtors' Amended Seventy-Fourth Omnibus Objection to Proofs of Claim, dated January 21, 2005 (the "Objection"), seeking the entry of an order modifying and allowing certain claims (the "Claim") pursuant to section 502(a) of title 11 of the United States Bankruptcy Code (the "Bankruptcy Code"), disallowing and expunging those claims identified on Exhibits A and B attached hereto; and it appearing that the disallowance and expungement of these Claims is in the best interests of the Reorganized Debtors, their creditors and all parties in interest; and, pursuant to Rule 3007 of the Federal Rules of Bankruptcy Procedure, good and sufficient notice having been provided to the attorneys for the statutory committee of unsecured creditors, the Office of the United States Trustee for the Southern District of New York, counsel to the Employment-Related Issues Committee, the persons or entities that filed proofs of claim identified on Exhibits A and B and their attorneys (if known), and any other parties on the Master Service List; and it appearing that no other or further notice need be provided; and the Court having reviewed the Objection and having heard the statements of counsel in support of the relief requested therein at a hearing before the Court (the "Hearing"); and the Court having determined that the legal and factual bases set forth in the Objection and at the Hearing establish just cause for the relief granted herein; and upon all of the proceedings had before the Court; and after due deliberation and sufficient cause appearing therefor, it is
ORDERED that pursuant to section 502(a) of the Bankruptcy Code the Claims identified on Exhibit A to this Order shall be modified and allowed as set forth on Exhibit B; and it is further
ORDERED that pursuant to section 105 of the Bankruptcy Code and Rule 9019 of the Bankruptcy Rules, the Letter Agreement summarized on Exhibit A and attached in full as Exhibit B, which document the compromise and settlement of the claim subject thereto, is hereby approved in its entirety.
EXHIBIT A Seventy-Fourth Omnibus Objection (Modify and Allow) EXHIBIT A Second Supplemental Order Seventy-Fourth Omnibus Objection (Modify and Allow)This claim is not the subject of an objection, but is included here because it is resolved by the letter agreement.
EXHIBIT B Seventy-Fourth Omnibus Objection (Settlement Agreement)
Enron Corp. Enron Energy Services, Inc. 1221 Lamar, Suite 1600 Houston, Texas 77010
FOR SETTLEMENT PURPOSES SUBJECT TO FEDERAL RULES OF EVIDENCE 408 AND NEW YORK CIVIL PRACTICE LAW AND RULES SECTION 5447
April 15, 2005
WD Energy Services Inc., f/k/a EnCana Energy Services Inc., f/k/a PanCanadian Energy Services Inc. U.S. Bank Tower 950-17th Street, Suite 2400 Denver, Colorado 80202
Re: Enfolio Master Firm Purchase/Sale Agreement (the "Sales Agreement") dated as of March 1, 1998 by and between Enron Energy Services, Inc. ("EESI") and WD Energy Services Inc., as successor in interest to PanCanadian Energy Services, L.P. and PanCanadian Energy Services, Inc. ("WD")
Ladies and Gentlemen:
1. Description of Claims. On December 2, 2001, Enron Corp. and certain affiliated entities, including EESI, filed voluntary petitions for relief under Chapter 11 of Title 11 of the United States Code, as amended (the "Bankruptcy Case"), in the United States Bankruptcy Court for the Southern District of New York (the "Bankruptcy Court"). On or about October 15, 2002, WD filed Proof of Claim No. 13406 (the "EESI Claim") with the Bankruptcy Court, asserting claims in the amount of $1,020,889.00 against EESI under the referenced Sales Agreement. On or about October 15, 2002, WD filed Proof of Claim No. 13405 (the "Corp Claim") with the Bankruptcy Court, asserting claims in the amount of $1,020,889.00 against Enron Corp. ("Corp") under a Guaranty Agreement (the "Guaranty") dated as of March 1, 1998, executed by Corp and WD. The EESI Claim and the Corp Claim are sometimes collectively referred to as the "Claims", and the Sales Agreement and the Guaranty are sometimes collectively referred to as the "Contracts". EESI and Corp are sometimes collectively referred to as "Enron".
2. Claims Settlement. In consideration for the release and settlement of all Claims (defined below), but subject to occurrence of the Bankruptcy Court Order Date (defined below), EESI, Corp and WD agree that (i) with respect to the EESI Claim, WD shall have an allowed unsecured claim in the amount of $1,020,889.00 with respect to EESI; and (ii) with respect to the Corp Claim, WD shall have an allowed unsecured claim in the amount of $510,444.50 with respect to Corp. The treatment of the Claims described in the immediately preceding sentence resolves all issues and disputes with respect to the Claims and resolves the Claims in their entirety. The respective balances of the Claims, including without limitation, any unliquidated, contingent or disputed portion of such balance shall be disallowed. The allowed portion of the Claims shall not be subject to reduction, defense or counterclaim, and neither EESI nor Corp shall object thereto.
3. Release. "Bankruptcy Court Order Date" means the date upon which the Bankruptcy Court for the Southern District of New York, after notice and hearing, enters an order approving this settlement. As of the Bankruptcy Court Order Date:
(a) Enron waives, releases, and forever discharges WD and its 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 Enron, that Enron and its 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 Contracts (such claims, obligations, demands, actions, causes of action, and liabilities referred to herein collectively as "Enron Claims"); and
(b) WD waives, releases, and forever discharges Enron and its 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 and 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 WD, that WD and its 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 Contracts (such claims, obligations, demands, actions, causes of action, and liabilities referred to herein collectively, as "WD Claims", and the WD Claims and the Enron Claims being collectively referred to as the "Claims"); provided, however, that WD does not waive, release or discharge EESI or Corp from their respective obligations to make distributions to WD on account of the allowed portion of the Claims, as established in paragraph 2 above, subject to and in accordance with the terms of, the plan of reorganization for Corp and certain affiliated debtors approved by the Bankruptcy Court.
4. Representations. WD represents and warrants that it has all necessary power and authority to execute, deliver, and perform its obligations set forth in this letter and that this letter has been duly authorized, executed, and delivered by and on behalf of WD and constitutes a legal, valid, and binding obligation of WD enforceable against it in accordance with its terms and the terms of the Bankruptcy Court Order, except that such enforceability may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors' rights generally and (b) equitable principles that may limit the availability of certain equitable remedies (such as specific performance). Each party represents and warrants that it is the only person or entity who, to its knowledge, has any interest in any Claims released hereby and that none of such Claims, or any part thereof, have been assigned, granted, or transferred in any way to any person or entity.
5. Binding Effect. The terms set forth in this letter shall be binding on Enron and WD as of the last date agreed to and accepted by both Enron and WD, as set forth below, subject to occurrence of the Bankruptcy Court Order Date.
6. Miscellaneous. In any action or proceeding to enforce the terms of this letter, the prevailing party shall be entitled to its attorneys' fees and costs. This letter shall be binding upon and inure to the benefit of Enron and WD and their respective successors and assigns. All notices, demands, and other communications hereunder shall be in writing and sent to EESI, Enron and WD at their respective addresses set forth herein. This letter contains the entire agreement between the parties with respect to the subject matter hereof, and there are no agreements, understandings, representations, or warranties between the parties other than those set forth or referred to herein. This letter may be executed in counterparts by either an original signature or signature transmitted by facsimile transmission or other similar process, each copy so executed shall be deemed an original, and all copies so executed shall constitute one and the same agreement.
Please have this letter executed below on behalf of WD and transmit the executed letter by facsimile to Paul Darmitzel at 713/646-3490, and send the executed original to Paul Darmitzel at 1221 Lamar St., Suite 1600, Houston, Texas 77010.
Sincerely,
ENRON CORP. ENRON ENERGY SERVICES, INC.
AGREED AND ACCEPTED BY WD ENERGY SERVICES INC.:
By: _____________________ Name: ___________________ Title: Don R. McClure Date: Vice President, Finance/Services
AGREED AND ACCEPTED BY ENRON ENERGY SERVICES, INC.:
By: _____________________ Name: ___________________ Title: __________________ Date: ___________________
AGREED AND ACCEPTED BY ENRON CORP.:
By: R.G. Lydecker Name: ___________________ Title: RICHARD LYDECKER Date: MANAGING DIRECTOR AND CAO