Case No. 01-16034 (AJG), Jointly Administered.United States Bankruptcy Court, S.D. New York.
February 10, 2005
Martin I. 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 the Reorganized Debtors.
Christopher F. Graham (CG/2455), Jesse L. Snyder (JS/7265), THACHER PROFFITT WOOD LLP, New York, New York, Attorneys for Eurocash I Limited.
STIPULATION AND ORDER RESOLVING THE OBJECTION TO THE PROOF OF CLAIM FILED BY EUROPEAN CASH I LIMITED AS SET FORTH IN REORGANIZED DEBTORS’ SIXTY-NINTH OMNIBUS OBJECTION TO PROOFS OF CLAIM
ARTHUR GONZALEZ, Bankruptcy Judge
WHEREAS, commencing December 2, 2001 (the “Petition Date”) and periodically thereafter, Enron Corp. and certain affiliated entities (the “Debtors”) filed voluntary petitions for relief under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”). The Debtors continue to be authorized to operate their businesses and manage their properties as debtors in possession pursuant to sections 1107 and 1108 of the Bankruptcy Code. The Debtors’ chapter 11 cases have been procedurally consolidated for administrative purposes;
WHEREAS, on December 12, 2001, in accordance with section 1102
of the Bankruptcy Code, the United States Trustee for the Southern District of New York appointed a statutory committee of unsecured creditors (the “Creditors Committee”) for the Debtors’ chapter 11 cases. The Creditors’ Committee has been reconstituted from time to time;
WHEREAS, The Debtors filed their Fifth Amended Joint Plan of Affiliated Debtors Pursuant to Chapter 11 of the United States Bankruptcy Code (the “Plan”) and accompanying
disclosure statement (the “Disclosure Statement”). On January 9, 2004, the Court entered an order approving the Disclosure Statement. On July 15, 2004, the Court entered an order confirming the Plan. The Plan became effective on November 17, 2004 (the “Effective Date”), and the Reorganized Debtors emerged from chapter 11.
WHEREAS, the Court established October 15, 2002 as the deadline by which proofs of claim were required to be filed in these cases against Enron Corp. (“Enron”), and numerous other Debtors herein (the “Bar Date”);
WHEREAS, on October 11, 2002, European Cash I Limited (“Eurocash”) filed a proof of claim against Enron Corp, designated as claim number 11934 (the “Initial Claim”), which asserted a guarantee claim in the amount of $174,831,264.00 against Enron Corp. arising out of, under, or in connection with a Guarantee Agreement dated as of December 19, 1997 by and between Enron as guarantor and Eurocash as beneficiary (the “Guarantee”) and related documentation. Attached to Eurocash’s Initial Claim were copies of an “Attachment A” to the proof of claim (which explained the nature and basis of the claim), a financial derivative by and between Enron Gas and Petrochemicals Trading Limited and Eurocash dated as of December 19, 1997, the Guarantee, and a chart summarizing the amount of the payment claimed due by Eurocash under the Guarantee (collectively, the “Supporting Documentation”);
WHEREAS, on November 12, 2004, Eurocash filed an amendment to its Initial Claim reducing the amount of its claim from $174,831,264.00 to $161,029,892.00, among other things. This amendment to Eurocash’s Initial Claim was designated as claim number 25143 (the “Amendment”) by the Debtors and assigned a filing date of November 12, 2004;
WHEREAS, on or about December 17, 2004, the Debtors filed their Sixty-Ninth Omnibus Objection to Proofs of Claim (the “Sixty-Ninth Objection”), in which they sought to
expunge and disallow the Initial Claim and leave on file only the Amendment, on the basis that the Amendment superseded the Initial Claim;
WHEREAS, Eurocash filed its Response to the Sixty-Ninth Objection on January 18, 2004, in which it objected to the Sixty-Ninth Objection to the extent that it would allow the Debtors to later object to the Amendment on the grounds that it was filed after the Bar Date and/or that it included insufficient notice of the amount claimed (the “Response”).
WHEREAS, the Debtors and Eurocash (collectively the “Parties”) have engaged in discussions over this matter and have agreed to resolve Eurocash’s objections to the Sixty-Ninth Objection, in the manner set forth in this Stipulation and Order.
NOW, THEREFORE, in consideration of the foregoing, the Parties, by their undersigned counsel, stipulate and agree as follows:
1. The Recitals are fully incorporated here by reference.
2. The Parties agree that the Initial Claim shall be integrated into the Amendment, and that the Initial Claim including all of the Supporting Documentation, and the Amendment, including all of the information and documentation provided therein and/or attached thereto, shall be treated for all purposes as if they are a single consolidated claim of Eurocash against Enron (the “Consolidated Claim”). The Debtors agree that the Consolidated Claim was timely filed.
3. For administrative purposes, the Initial Claim shall be expunged from the claims registry. The Consolidated Claim will be represented by claim number 25143 as currently assigned to the Amendment.
4. Eurocash agrees to withdraw its Response and the objections to the Sixty-Ninth Objection stated therein.
5. Nothing in this Stipulation is intended to, or shall be construed to (i) affect in any manner Eurocash’s rights with respect to the allowance of the Consolidated Claim, (ii) be a waiver by any of the Debtors or any party in interest of any right to object on any grounds to the Consolidated Claim (other than grounds relating to the consolidation provided for herein or challenging the fact that the Consolidated Claim was timely filed), and/or (iii) a waiver by Eurocash of any right to object to the disallowance or expungement of the Consolidated Claim, all of which rights are reserved.
6. 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.
7. This Court shall retain jurisdiction with respect to any and all issues or disputes that may arise in connection with this Stipulation and Order.
8. This Stipulation and Order shall be binding on the Parties hereto and their respective successors and assigns.
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.