Opinion
Case No. 01-16034 (AJG), Jointly Administered.
July 6, 2005
Luc A. Despins (LD 5141), Susheel Kirpalani (SK 8926), Michael E. Comerford (MC 7049), MILBANK, TWEED, HADLEY McCLOY LLP, New York, New York, Counsel to Reorganized Debtors.
This Stipulation and Consent Order (the "Stipulation") is entered into by and between (a) EREC Subsidiary V, LLC (Enron Wind LLC, as of April 19, 2002) ("EREC"), one of the reorganized debtors in the above-captioned cases, and (b) Albert K. Davies (the "Claimant" and together with EREC, the "Parties").
WHEREAS, on February 20, 2002 (the "Petition Date"), EREC and Enron Wind Corp. ("EWC") each 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 "Bankruptcy Court"). EREC's and EWC's chapter 11 cases have been procedurally consolidated with the chapter 11 cases of Enron Corp. and certain of its debtor affiliates, each a reorganized debtor in the above-captioned cases (collectively, with EREC and EWC, the "Reorganized Debtors") for administrative purposes only; and
WHEREAS, on or about August 5, 2002, the Claimant filed proof of claim no. 2624 against EWC (the "Proof of Claim"); and
WHEREAS, Enron Wind LLC was formerly known as EREC, which was the successor to EWC; and
WHEREAS, on July 15, 2004, the Bankruptcy 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 (the "Plan"); and
WHEREAS, on November 17, 2004 the Plan became effective and EREC emerged from chapter 11; and
WHEREAS, pursuant to paragraph 76 of the Confirmation Order, the Reorganized Debtors shall file and serve all objections to certain claims as soon as practicable, but, in each instance, not later than two hundred forty (240) days following the Confirmation Date or such later date as may be approved by the Bankruptcy Court; and
WHEREAS, on February 25, 2005, the Bankruptcy Court entered the Order Extending Period to File Objections to Certain Claims (the "Order"); and
WHEREAS, the Order provided that with respect to certain claims that are currently unknown to the Reorganized Debtors or are for some reason filed after the November 17, 2004 Effective Date of the Plan, the objection deadline is hereby extended to the latter of (i) sixty (60) days after the date on which such Claim was docketed by Bankruptcy Services LLC; and (ii) sixty (60) days after the Initial Claim Objection Deadline (the "Claim Objection Deadline"); and
WHEREAS, on or about May 4, 2005, the Claimant filed proof of claim no. 25263 (the "Amended Proof of Claim") against EWC purporting to amend the Proof of Claim; and
WHEREAS, EREC and the Claimant seek to avoid the cost and expense of litigating objections to the Amended Proof of Claim, and to preserve all of their respective legal rights without allowing the Claim Objection Deadline to expire, in order to negotiate a potential resolution of the Amended Proof of Claim.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Stipulation, in an effort to avoid unnecessary expenses and litigation, and with the intent to be legally bound, it is agreed and consented to by the Parties, as follows:
1. The running of any applicable deadline to object to the Amended Proof of Claim, including, but not limited to, the Claim Objection Deadline, is hereby tolled.
2. The assertion of any objections to the Amended Proof of Claim that may be timely asserted or commenced as of the date of this Stipulation shall not be barred by any statute of limitations or time-based defense while the provisions of this Stipulation are in effect.
3. The provisions of this Stipulation shall extend up to and including September 12, 2005, unless extended by mutual agreement of the Parties.
4. The Claimant represents that it is the lawful holder of the Amended Proof of Claim and the claims asserted therein, and has not and will not transfer the Amended Proof of Claim or the claims asserted therein, pursuant to Bankruptcy Rule 3001(e) or otherwise.
5. Each of the Parties acknowledges that it has read all of the terms of the Stipulation and enters into these terms voluntarily and without duress.
6. This Stipulation contains the entire agreement between the Parties regarding the subject matter hereof and may only be modified in a writing signed by the Parties or their duly appointed agents.
7. This Stipulation is not to be construed, and is not intended, as an admission or suggestion that any valid objection to the Amended Proof of Claim exists, or that any valid defense exists to any such objection.
8. Except as expressly set forth in this Stipulation, each of the Parties reserves all rights and remedies that it may have against the other.
9. This Stipulation has been jointly drafted by the Parties, and in construing and interpreting this Stipulation, no provision shall be construed and interpreted for or against a Party because such provision or any other provision of this Stipulation, or this Stipulation as a whole, was purportedly prepared or requested by such Party.
10. The provisions of this Stipulation are mutually interdependent, indivisible and non-severable.
11. This Stipulation 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.
12. The Parties hereto represent and warrant to each other that: (i) the signatories to this Stipulation are authorized to execute this Stipulation; (ii) each has full power and authority to enter into this Stipulation; and (iii) this Stipulation is duly executed and delivered, and constitutes a valid and binding agreement in accordance with its terms.
13. This Stipulation 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.
14. The Bankruptcy Court shall retain exclusive jurisdiction to interpret, implement and enforce the provisions of this Stipulation, and the Parties hereby consent to exclusive jurisdiction of the Bankruptcy Court with respect thereto. The Parties waive arguments of lack of personal jurisdiction or
[REMAINDER OF PAGE INTENTIONALLY BLANK] forum non-conveniens with respect to the Bankruptcy Court.
IN WITNESS WHEREOF, the Parties have executed this Stipulation on June 30, 2005.So Ordered.