Opinion
Case No. 01-16034 [AJG], Jointly Administered (Post-Confirmation).
May 6, 2005
TOGUT, SEGAL SEGAL LLP, Frank A. Oswald (FAO-1223), Howard P. Magaliff (HPM-2189), New York, New York, Co-Counsel for Enron Corp., et al., Reorganized Debtors.
LOWENSTEIN SANDLER, PC, VINCENT A. D'AGOSTINO, Roseland, New Jersey, But its counsel, ATT CORP.
STIPULATION AND ORDER TOLLING DEADLINE TO OBJECT TO ADMINISTRATIVE CLAIM FILED BY ATT CORP.
Enron Corp. and its affiliated debtor entities, as reorganized debtors (collectively, the "Reorganized Debtors"), and ATT Corp. ("ATT"), by and through their counsel, stipulate as follows:
RECITALS
A. On December 2, 2001 (the "Petition Date") and periodically thereafter, the Reorganized Debtors commenced cases under chapter 11 of title 11 of the United States Code (the "Bankruptcy Code") by filing voluntary petitions for relief with the United States Bankruptcy Court for the Southern District of New York (the "Bankruptcy Court").
B. Pursuant to § 1102 of the Bankruptcy Code, on December 12, 2001, the United States Trustee appointed an official committee of unsecured creditors in the Debtors' chapter 11 cases (the "Committee"). Pursuant to section 33.1 of the Plan (defined below), the Committee continues in existence for certain limited purposes, including, but not limited to, the prosecution of certain litigation.
C. 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").
D. The Effective Date of the Plan occurred on November 17, 2004 and the debtors emerged from chapter 11 as Reorganized Debtors.
E. On or about July 3, 2003, ATT filed an amended motion for an order compelling the immediate payment of post-petition administrative expenses, pursuant to § 503(b) of the Bankruptcy Code, in the amount of $6,916,189.36 (the "Administrative Claim").
F. Pursuant to ¶ 87 of the Confirmation Order, the Reorganized Debtors must file objections to administrative claims on or before May 18, 2005, which is 120 days after Administrative Expense Bar Date, unless extended by Order of the Court (the "Claim Objection Deadline").
G. The Reorganized Debtors and ATT seek to avoid the cost and expense of litigating objections to the Administrative Claim, and to preserve all of their respective legal rights without allowing the Claim Objection Deadline to expire, while they attempt to negotiate a resolution of the Administrative Claim. They seek, therefore, a 60-day extension of the Claim Objection Deadline, as it pertains to the Administrative Claim.
NOW THEREFORE, it is hereby agreed and consented to by the parties, by their respective counsel, as follows:
AGREEMENT
1. The running of any applicable deadline, including, but not limited to, the Claim Objection Deadline, is hereby tolled.
2. The assertion of any objections to the Administrative Claim that may be timely asserted or commenced as of the date of this Stipulation and Order shall not be barred by any statute of limitations or time-based defense while the provisions of this Stipulation and Order are in effect.
3. The provisions of this Stipulation and Order shall extend up to and including July 18, 2005, unless extended by mutual agreement of the parties (the "Tolled Period").
4. Each of the parties acknowledges that it has read all of the terms of this Stipulation and Order and enters into those terms voluntarily and without duress.
5. This Stipulation and Order contains the entire agreement between the parties regarding the provisions hereof and may only be modified in a writing signed by the parties or their duly appointed agents.
6. This Stipulation and Order is not to be construed, and is not intended, as an admission or suggestion that any valid objection to the Administrative Claim exists, or that any valid defense exists to any such objection.
7. Except as expressly set forth in this Stipulation and Order, each of the parties reserves all rights and remedies that it may have against the other.
8. This Stipulation and Order has been jointly drafted by the parties, and in construing and interpreting this Stipulation and Order, no provision shall be construed and interpreted for or against a party because such provision or any other provision of this Stipulation and Order, or this Stipulation and Order as a whole, was purportedly prepared or requested by such party.
9. This Stipulation and Order and the rights and obligations of the parties shall be governed by, and construed and interpreted under, the laws of the State of New York and any action or proceeding to enforce the rights and obligations of the parties shall be brought in the Bankruptcy Court.
10. This Stipulation and Order shall be binding upon, and inure to the benefit of, the successors, representatives and assigns of the parties.
11. This Stipulation and Order may be executed in counterparts and all executed counterparts taken together shall constitute one document.
12. Except as otherwise expressly provided herein, the use of the singular of any word shall also include the plural and the use of the plural shall also include the singular. SO ORDERED