Case No. 01-16034 (AJG), Jointly AdministeredUnited States Bankruptcy Court, S.D. New York.
November 13, 2003
Jeffrey A. Schulkin, THE LAW OFFICES OF MUNDAY NATHAN, Chicago, Illinois, for Michael Aussem
Melanie Gray, David Berz, WEIL, GOTSHAL MANGES, LLP, New York, NY, for the Debtors and Debtors in Possession
Martin J. Bienenstock, Brian S. Rosen, WEIL, GOTSHAL MANGES LLP, New York, NY, for the Debtors
STIPULATION AND ORDER MODIFYING AUTOMATIC STAY TO PERMIT MICHAEL AUSSEM TO PURSUE LITIGATION
ARTHUR GONZALEZ, Bankruptcy Judge
WHEREAS, commencing on December 2, 2001 (the “Petition Date”) Enron Corp. (“Enron”) and certain of its affiliated entities, including the National Energy Production Company (“NEPCO,” and, 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 “Bankruptcy Court”); and
WHEREAS, the Debtors’ respective bankruptcy cases have been consolidated for administrative purposes only; and
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WHEREAS, the Debtors continue to operate their businesses and manage their properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code; and
WHEREAS, on December 12, 2001 and March 29, 2002, respectively, the United States Trustee for the Southern District of New York appointed an official committee of unsecured creditors (the “Creditors’ Committee”) and the Employment Related Issues Committee; and
WHEREAS, prior to the Petition Date and on or about January 22, 2001, Michael Aussem (“Aussem”), commenced a personal injury action (the “Litigation”) against NEPCO, NEPCO of Ford Heights Corporation, NEPCO of Fulton, Inc., and Des Plaines Green Land Development, LLC in the Circuit Court of Cook County, Illinois, wherein Aussem allege s that he sustained injuries as a result of an incident that occurred on December 21, 1999; and
WHEREAS, NEPCO has tendered its defense of the Litigation to and requested indemnity from Morrison Construction Company (“MCC”), Aussem’s employer at the time of the alleged incident;
WHEREAS, the Litigation has been stayed since May 20, 2002, when NEPCO filed its chapter 11 petition; and
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NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and between the parties hereto, through their undersigned counsel, that:
1. The automatic stay imposed under section 362 of the Bankruptcy Code shall be modified effective on the date when this Stipulation is “so-ordered” by the Court solely to permit the parties to prosecute and defend against the Litigation and to take such actions as are necessary to exercise their respective rights in the Litigation; provided,however, that MCC defend and indemnify NEPCO and that Aussem may enforce or execute upon any (i) settlement, (ii) final, non-appealable judgment entered by a court of competent jurisdiction or (iii) other disposition of the underlying claims in the Litigation as to NEPCO only to the extent that such claims are covered by proceeds of the liability insurance policies issued to MCC. Aussem shall not have an allowed claim pursuant to section 502 of the Bankruptcy Code or otherwise against the Debtors and shall have no right to share in any distribution from the Debtors or their estates, whether under a chapter 11 plan or otherwise. Moreover, any proceeds of the Debtors’ applicable liability insurance policies shall not include any amounts payable pursuant to any insuring agreement that obligates or requires the Debtors to reimburse, fund or otherwise pay an amount directly or indirectly to any third party as a condition or consequence of the defense, settlement, judgment or other disposition of the Litigation.
2. Except as provided in paragraph one (1) above, Aussem shall not engage in any efforts to collect any amount from the Debtors or (a) the Debtors’ current and/or former employees, officers and directors, (b) any person indemnified by the Debtors, (c) any person listed as an additional insured under the Debtors’ liability
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policies, (d) any current or former direct or indirect parent corporations, affiliates or subsidiaries of the Debtors, (e) the officers, directors, and/or employees of any such parent, affiliate, or subsidiary of the Debtors, or (f) any other entity or individual sharing coverage with the Debtors (collectively, the “Indemnitees”). Neither the Debtors nor any of the Indemnitees shall be required to make any payment or distribution to Aussem on account of any claim asserted by Aussem or on account of any proof of claim or request (a “Bankruptcy Claim”) that Aussem has filed against the Debtors in their chapter 11 cases (or any affiliate of the Debtors that subsequently commences a chapter 11 case). Aussem agrees not to file a Bankruptcy Claim and, to the extent any such claim has been filed, to waive such claim. Aussem agrees to withdraw, with prejudice, any Bankruptcy Claim that he has filed within five (5) days of this stipulation being “so-ordered” by the Bankruptcy Court.
3. Aussem hereby waive s any and all claims for recovery against the Debtors and the Indemnitees other than his claim against the insurance proceeds (if any) as set forth in paragraph 1 above. Aussem further waives any right to prosecute any claim for punitive damages against the Debtors, any Indemnitee, or the Debtors’ insurers, whether or not such claim is currently asserted. Aussem further agrees that any settlement of the Litigation will include a general release of all claims against the Debtors, the Indemnitees, and the Debtors’ insurers.
4. Upon approval of this Stipulation by the Court, Aussem waives his right to seek further relief from the automatic stay imposed under section 362 of the Bankruptcy Code.
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5. This Stipulation contains the entire agreement between the parties and supersedes all prior agreements and undertakings between the parties relating to the subject matter hereof.
6. Each person who executes this Stipulation represents that he or she is duly authorized to execute this Stipulation on behalf of the respective parties hereto.
7. This Stipulation may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instruments, and it shall constitute sufficient proof of this Stipulation to present any copy, copies or facsimiles signed by the parties hereto to be charged.
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8. This Stipulation, and the terms and conditions contained herein, are subject to the approval of the Court, and shall inure to the benefit of the Debtors, their successors and assigns, including, without limitation, a trustee, if any, appointed under chapter 7 or 11 of the Bankruptcy Code, the Indemnitees, and the Debtors’ insurers.
So Ordered.
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