Case No. 01-16034 (AJG), Jointly Administered.United States Bankruptcy Court, S.D. New York.
February 22, 2005
Beth Stern Fleming (Pro Hac Vice), STEVEN LEE, P.C., Philadelphia, Pa, Attorneys for International Business Machine Corporation.
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 THIRTY-FIRST AND SIXTY-SEVENTH OMNIBUS OBJECTIONS TO PROOF OF CLAIM NO. 9390 FILED BY INTERNATIONAL BUSINESS MACHINE CORPORATION
ARTHUR GONZALEZ, Bankruptcy Judge
Enron Energy Services Operations, Inc. (“EESO”), as reorganized debtors, and International Business Machine Corporation (“Creditor,” and together with EESO, the “Parties”), 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”)[1] filed voluntary petitions for relief under chapter 11 of Title 11 of the United States Code (the “Bankruptcy Code”).
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.
Page 2
The Proof of Claim:
C. On or about October 11, 2002, Creditor filed Proof of Claim No. 9390 in the amount of $2,116,508.87 (the “Claim”) in EESO’s chapter 11 case.
D. On or about May 11, 2004, the Debtors filed their Thirty-First Omnibus Objection to Proof of Claims (Duplicate, Amended and Superceded), pursuant to which the Debtors sought to have the Claim disallowed as duplicative of another filed claim by the same Creditor. On or about November 16, 2004, the Reorganized Debtors filed their Sixty-Seventh Omnibus Objection to Proofs of Claim Filed In Aid of Confirmation of Joint Plan To Reclassify Proofs of Claim Filed as Administrative and Priority Claims (collectively, with the Thirty-First Omnibus Objection the “Objections”), pursuant to which the Debtors sought to have the Claim reclassified as unsecured.
E. The Parties now desire to resolve the Objections 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. Proof of Claim No. 9390 shall be allowed as a Class 10 General Unsecured Claim (as defined in the Plan) against EESO in the amount of $1,926,680.92 and an Administrative Claim (as defined in the Plan) of $17, 803.67 (collectively the “Allowed Claim”). All Scheduled Liabilities related to Creditor as set forth in the liability schedules filed with the Court are hereby disallowed in their entirety in favor of the Allowed Claim. These schedules include but are not limited to the following schedule numbers 10298610, 10302551, 10302971, 10305245, 10701404, 10701405 and 10746933. Payments and/or distributions on account of the Allowed Claim will be made in the manner provided and at the time set forth in the Plan.
Page 3
2. The Reorganized Debtors and Creditor agree that nothing contained in the Stipulation and Order shall have the effect of limiting the rights of the Reorganized Debtors or any other party-in-interest (i) to assert any cause of action against Creditor, including, without limitation, avoidance actions in accordance with sections 541, 543, 544, 545, 547, 548, 549, 550 and 551 of the Bankruptcy Code (each, an “Avoidance Action”) or (ii) against any holder of a claim against the Reorganized Debtors in accordance with 502(d) of the Bankruptcy Code.
3. In addition, the Reorganized Debtors and Creditor agree that Creditor does not waive any right it may have now or in the future against the Reorganized Debtors’ estates pursuant to section 502(h) of Bankruptcy Code in connection with the adversary proceeding captioned Enron Corp., et al v. IBM Corp.,
AP No. 03/93525 (AJG).
4. The Parties 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.
5. The 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.
6. This 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.
Page 4
8. This Stipulation and Order shall have no effect on this Court’s previously entered Order Approving Settlement Agreement Between Enron Energy Services Inc. and International Business Machines Corporation, dated September 30, 2004 [Docket No. 21104].
9. This Stipulation and Order may be executed in any number of counterparts 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.