Case No. 01-16034 (AJG) Jointly Administered.United States Bankruptcy Court, S.D. New York.
November 8, 2004
Melanie Gray, Martin J. Bienenstock (MB 3001), Brian S. Rosen (BR 0571), Sylvia Mayer Baker (admitted pro hac vice), WEIL, GOTSHAL MANGES LLP, New York, New York, Attorneys for the Debtors and Debtors in Possession.
William M. Silverman (WS-6907), Peter Feldman (PF-3271), OTTERBOURG, STEINDLER, HOUSTON ROSEN, P.C., New York, NY, Attorneys for The Bank of Tokyo-Mitsubishi, Ltd.
STIPULATION AND ORDER WITH THE BANK OF TOKYO-MITSUBISHI, LTD. TO EXTEND THE DEADLINE TO FILE AN OBJECTION TO CLAIM NUMBER 12862 PURSUANT TO SECTION 21.1 OF THE SUPPLEMENTAL MODIFIED FIFTH AMENDED JOINT PLAN OF AFFILIATED DEBTORS AND FEDERAL RULE OF BANKRUPTCY PROCEDURE 9019
ARTHUR GONZALEZ, Bankruptcy Judge
Enron North American Corp. (“ENA”) and The Bank of Tokyo-Mitsubishi, Ltd. (“BTM” and, together with ENA, the “Parties”), by and through their respective counsel, do hereby stipulate as follows:
RECITALS
A. Commencing on December 2, 2001 (the “Petition Date”) and subsequently thereafter, Enron Corp. and certain of its affiliated entities (collectively, the “Debtors”) each filed a voluntary petition for relief under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) and the Debtors’ chapter 11 cases (the “Chapter 11 Cases”) have been procedurally consolidated for administrative purposes.
B. Pursuant to its authority under section 1102 of the Bankruptcy Code, on December 12, 2001 and March 29, 2002, the United States Trustee for the Southern District of New York appointed the statutory committee of unsecured claimholders (the “Creditors’ Committee”).
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C. On October 15, 2002, BTM filed claim number 12862, which asserts a claim against ENA in the amount of $149,044,297.25 in accordance with the priorities set forth therein (the “Claim”).
D. On July 15, 2004, the Court entered an order (the “Confirmation Order”) confirming the Debtors’ Fifth Amended Joint Plan of Affiliated Debtors Pursuant to Chapter 11 of the United States Bankruptcy Code, dated as of January 9, 2004, as subsequently modified (the “Plan”). The Effective Date of the Plan has not yet occurred.
E. Pursuant to section 21.1 of the Plan, objections to the twenty (20) largest proofs of claim filed against ENA, as identified by the ENA Examiner, shall be filed by no later than fifty (50) days following the Confirmation Date, unless extended for cause upon motion by the Debtors.
F. ENA has advised BTM that the Claim is one of the twenty largest proofs of claim filed against ENA, as identified by the ENA Examiner. ENA disputes the Claim on multiple grounds.
G. On September 15, 2004, this Court entered an order extending the deadline to file an objection to the Claim until November 1, 2004 pursuant to Section 21.1 of the Plan.
H. The Parties have been actively engaged in negotiations to resolve the Claim and need additional time to continue their settlement discussions. Accordingly, the Parties request an extension pursuant to 21.1 of the Plan to February 1, 2005. The Parties submit that such an extension will bene fit the Debtors’ estates by eliminating unnecessary litigation costs if the Parties are ultimately able to resolve the Claim — in part or in whole.
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I. The Parties further agree that if the extension requested in this Stipulation is not granted, the Debtors may file an objection to the Claim without prejudice within a reasonable period of time, but in no event later than 30 days after the denial of the entry of this Stipulation.
J. The Parties seek approval of this Stipulation pursuant to section 21.1 of the Plan and Federal Rule of Bankruptcy Procedure 9019.
K. NOW, THEREFORE, in consideration of the forgoing the Parties, by their undersigned counsel, stipulate and agree as follows:
AGREEMENT
1. The Recitals are fully incorporated herein by reference.
2. Pursuant to section 21.1 of the Plan, the deadline for the Debtors to file an objection to the Claim is hereby extended to February 1, 2005.
3. Except as set forth in paragraph 2 hereof, the extension granted by this Stipulation is without prejudice to any and all rights and remedies of the Parties, including without limitation (i) the Debtors’ ability to file an objection to the Claim consis tent with this Order and (ii) BTM’s defenses thereto.
4. The Parties may further extend the dates set forth herein in their discretion without further notice or order from this Court.
5. This Order sets forth the entire understanding of the Parties hereto 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 soordered by the Bankruptcy Court.
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6. This Stipulation and Order may be executed in any number of counterparts or with detachable signature pages and shall constitute one agreement, binding upon all parties thereto as if all Parties signed the same document; all facsimile signatures shall be treated as originals for all purposes.
SO ORDERED.
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