Opinion
Case No. 01-16034 (AJG), Jointly Administered.
May 9, 2005
Carren Shulman, Esq. (CS 2804), Jason Blumberg, Esq. (JB 1033), HELLER EHRMAN LLP, New York, NY, ATTORNEYS FOR KOTKA ENERGY LTD.
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.
STIPULATION AND ORDER RESOLVING THE SEVENTY-FOURTH OMNIBUS OBJECTION TO PROOF OF CLAIM NO. 17275 FILED BY KOTKA ENERGY LTD.
Enron Capital Trade Resources International Corporation ("ECTRIC") as reorganized debtor (the "Reorganized Debtor"), and Kotka Energy Ltd. (a/k/a Kotkan Energia Oy) ("Kotka" and together with the Reorganized Debtors, collectively, the "Parties" or individually, a "Party"), by and through their respective undersigned counsel, hereby stipulate and agree as follows:
RECITALS:
Procedural Background:
A. On December 2, 2001 (the "Petition Date") and from time to time thereafter, Enron Corp. ("Enron") 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") in the United States Bankruptcy Court for the Southern District of New York (the "Court").
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 (the "Confirmation 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, Kotka (the "Creditor") filed proof of claim no. 17275 against ECTRIC in the amount of $1,425,597.88 (the "Claim"), which amount allegedly arose out of (i) a certain Financial Swap Contract dated as of October 15, 1999 between ECTRIC and the Creditor and (ii) the financial power contracts identified in the Claim between ECTRIC and the Creditor.
D. On or about January 21, 2005, the Reorganized Debtors filed their Seventy-Fourth Omnibus Objection (No Amount Due and Insufficient Proof) (the "Objection"), pursuant to which the Reorganized Debtors sought to have the Claim disallowed.
E. The Parties now desire to resolve the Objection and provide for the allowance of the 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 Claim is allowed as a General Unsecured Claim (as defined in the Plan) in the amount of $500,000.00 against ECTRIC (the "Allowed Claim"). All Schedules related to the Creditor as set forth in the liability schedules filed with the Court are hereby disallowed in their entirety in favor of the Allowed Claim. Distributions on the Allowed Claim will be made according to the Plan.
2. In further consideration of the agreement reached by the Parties, each Party hereby releases the other Party from any and all costs, expenses, actions, causes of action, suits, controversies, damages, claims, liabilities or demands of any nature, whether known or unknown, foreseen or unforeseen, existing or hereinafter arising, liquidated or unliquidated, matured or not matured, contingent or direct, whether arising at common law, in equity, or under any statute, based in whole or in part on any act or omission or other occurrence taking place on or prior to the date hereof.
3. The Parties agree that this Stipulation and Order is the entire understanding of the Parties with respect to the subject matter hereof 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.
4. This 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.
5. The Objection to the Claim is resolved as provided herein.
6. The Court shall retain exclusive jurisdiction with respect to any and all issues or disputes that may arise in connection with this Stipulation and Order.
7. This Stipulation and Order shall be binding on the Parties hereto and their respective successors and assigns.
8. This Stipulation and Order may be executed in any number of counterparts and shall constitute one agreement, binding upon all Parties hereto as if all Parties signed the same document; all facsimile signatures shall be treated as originals for all purposes.
SO ORDERED.