Opinion
Case No. 01-16034 (AJG), Jointly Administered.
May 26, 2005
Luc A. Despins (LD 5141), Matthew S. Barr (MB 9170), Samuel A. Khalil (SK 0731), MILBANK, TWEED, HADLEY McCLOY LLP, New York, NY, Attorneys to Reorganized Debtors.
This Stipulation and Consent Order (the "Stipulation") is entered into by and between Enron Corp. ("ENE") and Artemis Associates, L.L.C. ("Artemis" and, together with ENE, "Enron"), two of the Reorganized Debtors in the above-captioned case, and Veolia North America Company, f/k/a Vivendi North America Company f/k/a Anjou International, ("Veolia", with Veolia and Enron being collectively referred to as the "Parties").
WHEREAS, commencing on December 2, 2001, and periodically thereafter, Enron and certain of its affiliates each filed a voluntary petition for relief 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"), which chapter 11 cases have been procedurally consolidated for administrative purposes only;
WHEREAS, on May 19, 2003, Veolia filed proof of claim number 22924 against Artemis asserting claims arising out of that certain Stock Purchase Agreement (the "Agreement") dated March 3, 1998, by and between Anjou International, as seller, and Artemis, as Purchaser (the "Artemis Claim");
WHEREAS, on October 3, 2002, Veolia filed proof of claim number 6097 against ENE asserting claims arising out of that certain Enron Guaranty (the "Guaranty") entered into by ENE in favor of Anjou International (the "ENE Claim" and, together with the Artemis Claim, the "Claims");
WHEREAS, on February 25, 2005, Enron filed that certain Reorganized Debtors' Eighty-First Omnibus Objection To Proofs Of Claim (No Amount Due Per Debtors' Books And Records And Insufficient Proof) (Docket No. 23911) (the "Objection"), which objected to, among others, the Claims on the grounds that, according to Enron's books and records, there was no amount due to Claimants on account of the Claims; and
WHEREAS, the Stipulation contains the terms agreed to by the Parties with respect to the settlement of the Claims.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in the Stipulation, in an effort to avoid unnecessary expenses and litigation, and with the intent to be legally bound, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is agreed between the Parties as follows:
1. Allowed Claims. Veolia shall have an allowed general unsecured nonpriority Class 185 (Enron Guaranty Claims) claim in the amount of $3,325,000.00 and an allowed general unsecured nonpriority Class 79 (Artemis Associates LLC General Unsecured Claims) claim in the amount of $4,225,000.00 (the "Allowed Claims").
2. Objection. Upon the occurrence of the Effective Date (as defined below), Enron withdraws the Objection only to the extent that it relates to the Claims.
3. Release Of Liability And Disallowance Of Claims. With the exception of (a) the Allowed Claims and (b) certain claims, if any, and defenses to claims arising from or relating to the indemnification provisions of the Agreement solely relating to liability, if any, with respect to Proof of Claim number 24497 filed by the State of Michigan Department of Treasury against EFS VIII, Inc. (f/k/a Limbach Company), one of the Reorganized Debtors (the "Limbach Claim"), Veolia hereby releases, with prejudice, Enron from any and all liability arising from the Claims, the Agreement or the Guaranty. It being understood that Enron expressly preserves any and all rights against Veolia with respect to the Limbach Claim. Any amount asserted in the Claims in excess of the amount of the Allowed Claims, including, without limitation, any unliquidated, contingent or disputed portions of such Claims, shall be disallowed, irrevocably waived and withdrawn, with prejudice. The treatment of the Claims in this Stipulation resolves all issues and disputes with respect to the Claims and causes of action against Enron that Veolia has or may have arising from or related to any contract or agreement described or referenced in the Claims or any substantiation thereof except as provided in the first sentence of this paragraph 3.
4. Authority and Representations. The Parties hereto represent and warrant to each other that: (i) the signatories to the Stipulation are authorized to execute the Stipulation; (ii) each has full power and authority to enter into the Stipulation; and (iii) the Stipulation is duly executed and delivered, and constitutes a valid, binding agreement in accordance with its terms. Veolia hereby represents and warrants that it is the lawful holder of the Artemis Claim and the ENE Claim and has not transferred such claims to any party.
5. The Parties further represent and agree that they have each had the opportunity to consult with their respective attorneys regarding the Stipulation, including, but not limited to, the opportunity for counsel to review the Stipulation. The Parties represent and agree that they have each carefully read and each fully understands all the provisions of the Stipulation and that the Stipulation is entered into voluntarily. The Parties additionally represent and agree that the terms and provisions of the Stipulation shall not be construed against the party that drafted the Stipulation.
6. Binding Nature. The Stipulation (i) shall inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns and (ii) shall be binding upon and enforceable against the Parties and their respective successors and assigns upon the entry of an order of the Bankruptcy Court approving the Stipulation.
7. Bankruptcy Court Approval. The Stipulation is expressly subject to and contingent upon its approval by the Bankruptcy Court. If the Stipulation, or any portion hereof, is not approved by the Bankruptcy Court or if it is overturned or modified on appeal, the Stipulation shall be of no further force and effect, and, in such event, neither the Stipulation nor any negotiations and writings in connection with the Stipulation shall in any way be construed as or deemed to be evidence of or an admission on behalf of any Party hereto regarding any claim or right that such Party may have against any other party hereto.
8. Non-Severability. The provisions of the Stipulation are mutually interdependent, indivisible and nonseverable.
9. Entire Agreement. The Stipulation constitutes the entire agreement between the Parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, written and oral, between the Parties with respect to the subject matter hereof. The Stipulation may not be modified or amended except by a writing signed by all of the Parties. All representations, warranties, promises, inducements or statements of intention made by the Parties hereto are embodied in the Stipulation, and no Party hereto shall be bound by, or liable for, any alleged representation, warranty, inducement or statement of intention that is not expressly embodied herein. The Parties represent and warrant that the Stipulation discloses all of the terms of the Parties' agreement with respect to the Claims.
10. Effective Date. The 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, and the Bankruptcy Court has entered the Stipulation on the docket of the Bankruptcy Court (the "Effective Date").
11. Retention of Jurisdiction. The Bankruptcy Court shall retain exclusive jurisdiction to interpret, implement and enforce the provisions of the 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 forum non-conveniens with respect to the Bankruptcy Court.
IN WITNESS WHEREOF, the Parties have executed this Stipulation on May 25, 2005.
So Ordered.