Case No. 01-16034 (AJG).United States Bankruptcy Court, S.D. New York.
March 11, 2005
Nick Lumley, Authorized Representative, BRITISH GAS TRADING LIMITED, Windsor, Berkshire SL4 5GD, England, Melanie Gray, WEIL, GOTSHAL MANGES LLP, Houston, Texas, Attorneys for Reorganized Debtors.
STIPULATION AND AGREED ORDER AMONG BRITISH GAS TRADING LIMITED AND ENRON CORP. REGARDING PROOF OF CLAIM 17114
ARTHUR GONZALEZ, Bankruptcy Judge
British Gas Trading Limited (“BGT”), and Enron Corp., as reorganized debtor (“Enron”), and together with BGT, the “Parties”), by and through their respective undersigned counsel or authorized representative, hereby agree and stipulate as follows:
RECITALS
WHEREAS, prior to December 2, 2001, Enron issued a £ 1,000,000 Deed of Guaranty and a £ 100,000,000 Guarantee in favor of BGT for amounts allegedly due by Enron Capital Trade Resources Limited (“ECTRL”) with respect to certain gas purchase, sale and storage transactions (the “Guarantees”) and
WHEREAS, commencing on December 2, 2001, and periodically thereafter, Enron and certain of its affiliated subsidiaries (collectively, the “Reorganized Debtors”) each filed voluntary petition for relief under chapter 11 of title 11 of the United States Code (the ñ in the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”) and
WHEREAS, on July 15, 2004, the Bankruptcy Court confirmed the Fifth Amended Joint Plan of Affiliated Debtors Pursuant to the Bankruptcy Code, dated January 9, 2004, as modified on June 1, 2004 and July 2, 2004 (the “Plan”); and
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WHEREAS, on November 17, 2004, the Plan became effective, and the Reorganized Debtors emerged from chapter 11; and
WHEREAS, on or before October 15, 2002, BGT timely filed Proof of Claim Number 17114 in the amount of $108,214,290.00 (the “Guaranty Claim”) against Enron based upon the Guarantees; and
WHEREAS, BGT and Enron now wish to resolve any outstanding issues related to the Guaranty Claim.
AGREEMENT
NOW, THEREFORE, IT IS HEREBY AGREED BY THE PARTIES, BY AND THROUGH THEIR RESPECTIVE COUNSEL, AS FOLLOWS:
1. Allowance of Proof of Claim. On the Effective Date, the Guaranty Claim shall be allowed as an unsecured claim in Class 4 in the amount of $98,718,613. For the purposes of this Stipulation and Order, the term “Effective Date” shall be defined as the date when all of the following conditions have been satisfied: (a) the Stipulation and Order has been signed by each of the Parties; (b) the Bankruptcy Court has entered the Stipulation and Order on the docket of the Bankruptcy Court.
2. Mutual Release. On the Effective Date, and with exception only to the Parties’ rights and obligations under this Stipulation and Order, Enron and BGT shall be deemed to have released, acquitted and discharged the other Party and its respective directors, officers, employees and agents, including any subsidiary corporation or parent corporation, from any and all liabilities, claims, demands,Page 3
obligations, losses, actions, causes of action, liens, suits, attorneys’ fees, damages, costs, and compensation or recoupment of any nature whatsoever that any of the Parties have, had or may in the future have in connection with or arising out of the Guarantees or the Guaranty Claim.
3. Entire Understanding/Limited Effect. BGT and Enron agree that this Stipulation and Order is the entire understanding of the Parties 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. Nothing in this Stipulation and Order is intended to be, nor shall it be construed to he (a) an allowance of any proof of claim, other than the Guaranty Claim, filed by ROT in the Bankruptcy Cases, or (h) a waiver by any of the Reorganized Debtors or any other parties in interest of any right to object on any grounds to any proofs of claim filed or to be filed by BGT, other than as to Guaranty Claim, which claim is resolved as set forth herein,
4. Bankruptcy Court Approval. This Stipulation and Order is expressly subject to and contingent upon its approval by the Bankruptcy Court. If this Stipulation and Order, or any portion hereof, is not approved by the Bankruptcy Court or if it is overturned or modified on appeal, this Stipulation and Order shall be of no further force and effect, and, in such event, neither this Stipulation and Order nor any negotiations and writings in connection with this Stipulation and Order 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 againstPage 4
any other Party hereto, or otherwise. Enron shall use its best efforts to seek the necessary approval of the Bankruptcy Court not later than March 10, 2005.
5. Counterparts. This Stipulation and Order may he executed in one or more counterparts and by facsimile, all of which shall be considered one and the same agreement.
6. Governing Law. This Stipulation and Order shall he 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.
7. Retention of Jurisdiction. The Bankruptcy Court shall retain exclusive jurisdiction to interpret, implement, and enforce the provisions of this Stipulation and Order, 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.
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SO ORDERED.