Case No. 01-16034 (AJG), Jointly Administered.United States Bankruptcy Court, S.D. New York.
April 21, 2004
Melanie Gray, Martin J. Bienenstock (MB 3001), Brian S. Rosen (BR 0571), Melanie Gray (Pro Hac Vice), Martin A. Sosland (MS 7169), Weil, Gotshal Manges LLP, New York, New York, Attorneys for Debtors and Debtors in Possession.
Jane L. Vris, (JV-4645), Cronin Vris, LLP, New York, New York, Attorneys for Vinson Elkins L.L.P.
STIPULATION AND AGREED ORDER WITH RESPECT TO CLAIMS OF VINSON ELKINS L.L.P. AGAINST ENRON MAURITIUS COMPANY, OFFSHORE POWER PRODUCTION C.V. AND ENRON INDIA HOLDINGS LIMITED
ARTHUR GONZALEZ, Bankruptcy Judge
This STIPULATION AND AGREED ORDER (this “Stipulation”) is entered into by and among Enron Mauritius Company (“EMC”), Offshore Power Production C.V. (“OPP”), Enron India Holdings Limited (“EIHL”) (collectively, the “Stipulating Debtors”), as debtors and debtors in possession, and Vinson Elkins L.L.P. (“VE,” and together with the Stipulating Debtors, the “Parties”).
RECITALS
WHEREAS, beginning on December 2, 2001 and periodically thereafter, Enron Corp. and certain other entities, including the Stipulating Debtors (collectively, the “Debtors”), commenced voluntary cases for reorganization under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the Southern District of New York (the “Court”), which cases are being jointly administered under Case No. 01-16034 (AJG) (the “Bankruptcy Case”);
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WHEREAS, on October 11, 2002, VE filed the following three proofs of claims against the Stipulating Debtors in the Bankruptcy Case, asserting certain claims against the Stipulating Debtors (collectively, the “Claims”):
1. Proof of Claim number 10888 against EMC;
2. Proof of Claim number 10889 against EIHL; and
3. Proof of Claim number 10890 against OPP;
WHEREAS, on March 5, 2004, the Stipulating Debtors filed Debtors’ Twenty-Eighth Omnibus Objection to Proofs of Claim, by which the Stipulating Debtors objected to 31 proofs of claim filed against them, including the Claims, and requested entry of an order disallowing and expunging the claims represented by such proofs of claim;
WHEREAS, the Debtors have requested that VE withdraw the Claims;
WHEREAS, the Stipulating Debtors desire that VE withdraw the Claims;
WHEREAS, VE is willing to withdraw the Claims on the condition that the Stipulating Debtors waive any and all present and future claims of such Stipulating Debtors against VE in connection with services rendered by VE to the Debtors prior to the date of this Stipulation (the “Services”);
WHEREAS, no waiver of any other present or future claims of any of the Debtors other than the Stipulating Debtors against VE is contemplated by this Stipulation;
WHEREAS, the Stipulating Debtors believe that no valid claims or other causes of actions exist on their behalf against VE in connection with the Services; and
WHEREAS, the Stipulating Debtors are willing to release VE from any and all present and future claims against VE in connection with the Services.
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NOW, THEREFORE, for good and valuable consideration, the sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the Parties hereto hereby stipulate and agree as follows:
1. The Recitals are fully incorporated herein by reference.
2. Subject to the approval of this Stipulation by the Court, VE hereby withdraws proofs of claim numbers 10888, 10889 and 10890 filed against EMC, EIHL and OPP, respectively.
3. Subject to the approval of this Stipulation by the Court, the Stipulating Debtors, for themselves and on behalf of all of their successors and assigns, hereby release, acquit and forever discharge VE, it successors and assigns, and each and every past and present partner, employee, representative and attorney thereof from any and all issues, claims, demands, causes of action, costs, expenses, suits, liabilities, damages, obligations, fees and other amounts payable, and rights of any kind whatsoever, direct or indirect, known or unknown, absolute or contingent, at law or in equity or otherwise, including, without limitation, claims for fraud, fraud in the inducement, negligence, gross negligence, breach of contract, misrepresentation, civil conspiracy and conspiracy, that any of the Stipulating Debtors have, had or may in the future have in connection with or arising out of the Services or any facts, circumstances or transactions relating thereto (collectively, the “Stipulating Debtors’ Released Claims”).
4. For the avoidance of doubt, the release by the Stipulating Debtors on behalf of themselves and all of their successors and assigns, as set forth in section 3 of this Stipulation, in no way constitutes a waiver or release of or otherwise affects any claims or causes of action of any sort whatsoever, filed or not filed, existing now or
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arising in the future, of any of the Debtors other than the Stipulating Debtors against VE.
5. To the extent applicable law would not otherwise recognize the provisions of section 3 of this Stipulation as constituting a full and final release applying to all unknown and unanticipated claims relating to the Stipulating Debtors’ Released Claims, as well as those now known or disclosed, the Stipulating Debtors hereby expressly waive all rights or benefits which they may have now or in the future under any such applicable law.
6. The Court shall retain jurisdiction with respect to any and all issues or disputes that may arise in connection with the implementation, performance, enforcement or construction of this Stipulation.
7. The provisions of this Stipulation shall be binding upon and inure to the benefit of the Parties and their respective heirs, executors, administrators, agents, representatives, successors and assigns, including without limitation any chapter 7 or chapter 11 trustee appointed in this case, or any trustee or other person appointed pursuant to any plan of reorganization of the Debtors. The terms of this Stipulation shall not be abrogated or altered by the terms of any subsequent order of this Court.
8. This Stipulation shall become effective and binding as of entry of this Stipulation on the docket as “so ordered” by the Court. Each of the Parties agrees to use its best efforts to oppose any objection to this Stipulation and to defend any appeal of the approval of this Stipulation. No terms of this Stipulation shall be effective unless all terms of the Stipulation are effective.
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9. This Stipulation shall be governed by, construed and enforced in accordance with, the laws of the State of New York.
10. This Stipulation 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.
11. This Stipulation 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.
IN WITNESS WHEREOF, the Parties hereto have executed this Stipulation by and through their respective counsel as of the date set forth below.
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PURSUANT TO STIPULATION, IT SO ORDERED: