Case No. 01-16034 (AJG), Jointly Administered.United States Bankruptcy Court, S.D. New York.
January 12, 2005
Martin J. Bienenstock (MB 3001), Brian S. Rosen (BR 0571), Melanie Gray, Stephen T. Loden, Weil, Gotshal Manges LLP, New York, NY, ATTORNEYS FOR ENRON ENERGY SERVICES, INC. AS A REORGANIZED DEBTOR.
Paul Hollender, CORASH HOLLENDER, P.C., The Corporate Park of Staten Island, Staten Island, New York, ATTORNEYS FOR POWER RESOURCES OPERATING COMPANY, INC.
STIPULATION AND ORDER RESOLVING MOTION BY POWER RESOURCES OPERATING COMPANY, INC. TO COMPEL PAYMENT OF ADMINISTRATIVE EXPENSE
ARTHUR GONZALEZ, Bankruptcy Judge
Enron Energy Services, Inc. (“EESI”) and Power Resources Operating Company, Inc. (“Power Resources” and, collectively with EESI, the “Parties”), by and through their respective counsel, respectfully submit this Stipulation and Order (the “Stipulation”) to resolve the motion, dated June 11, 2004, by Power Resources to Compel Payment of Administrative Expense (the “Administrative Expense Application”), as follows:
RECITALS
WHEREAS, commencing on December 2, 2001, and periodically thereafter, Enron Corp. and its affiliated debtor entities, including EESI (collectively the “Reorganized Debtors”) filed voluntary petitions for relief under chapter 11 of the Bankruptcy Code. Prior to emergence from chapter 11, the Reorganized Debtors continued to be authorized to operate their businesses and manage their properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code;
WHEREAS, on July 15, 2004, the Court entered an order (the “Confirmation Order”) confirming the Supplemental Modified Fifth Amended Joint Plan of Affiliated Debtors Pursuant to Chapter 11 of the United States Bankruptcy Code, dated July 2, 2004 (the “Plan”).
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The Plan became effective on November 17, 2004 (the “Effective Date”), and the Reorganized Debtors emerged from chapter 11;
WHEREAS, on October 7, 2002, Power Resources filed a proof of claim in the EESI chapter 11 case, proof of claim number 6783 (the “Power Resources Proof of Claim”);
WHEREAS, on June 11, 2004, Power Resources filed the Administrative Expense Application, seeking allowance of an administrative expense priority claim against EESI pursuant to section 503(b)(1)(A) of the Bankruptcy Code;
WHEREAS, on October 15, 2004, the Reorganized Debtors filed their objection to the Administrative Expense Application (the “Reorganized Debtors’ Objection”), wherein the Reorganized Debtors contend that Power Resources is not entitled to an administrative expense claim under section 503 of the Bankruptcy Code;
WHEREAS, counsel for the Parties have engaged in substantive discussions concerning an amicable resolution of the Power Resources Proof of Claim and the Administrative Expense Application that resulted in the agreement set forth herein; and
WHEREAS, the Parties each believe that resolution of the Power Resources Proof of Claim and the Administrative Expense Application, as provided for in this Stipulation, is in their respective best interests.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto stipulate and agree as follows:
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STIPULATION
1. Allowance of Power Resources Proof of Claim: Upon entry of this Stipulation by the Court and withdrawal with prejudice of the Administrative Expense Application as provided for herein, the Power Resources Proof of Claim, claim number 6783, shall be allowed as a general unsecured claim against the EESI chapter 11 estate in the amount of $173,719.33 to be paid pursuant to the terms of the Plan.
2. Withdrawal of Administrative Expense Application: Upon entry of this Stipulation by the Court, Power Resources shall immediately withdraw the Administrative Expense Application with prejudice and with each party to bear all costs incurred by the same.
3. Release of Certain Claims: Upon entry of this Stipulation by the Court, EESI, Power Resources, and Lake Local Board of Education (of Hartville, Ohio) (“Lake Local”) shall release any claims that they may have against each other arising out of or related to the natural gas provided by EESI to Lake Local in December 2001, regardless of whether such claims have or have not been previously asserted. The Parties expressly acknowledge that the release set forth in this paragraph shall not affect any claims between the Parties to the extent such claims do not directly result from the natural gas provided by EESI to Lake Local in December 2001.
4. Bankruptcy Court Jurisdiction: The Parties agree that the Bankruptcy Court shall retain exclusive jurisdiction to hear and adjudicate all disputes that may arise in connection with this Stipulation, the Power Resources Proof of Claim, or the Administrative Expense Application.
5. Entire Agreement. This Stipulation constitutes the entire agreement between the Parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, written and oral, between the parties with respect to the subject matter hereof.
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All representations, warranties, promises, inducements, or statements of intention made by the parties hereto with respect to the Stipulation are embodied in the Stipulation, and no Party hereto shall be bound by, or liable for, any alleged representation, warranty, inducement, or statement of intention that is not expressly embodied herein or otherwise set forth in the Stipulation.
6. Modifications. This Stipulation may not be modified, except in a written instrument signed by each of the Parties hereto.
7. Authority. Both EESI and Power Resources represent that they are authorized to execute this Stipulation, subject to the Bankruptcy Court’s approval.
8. Effective Date. This Stipulation shall be binding on the Parties from the date of its execution, but is expressly subject to and contingent upon its approval by the Bankruptcy Court. If the Bankruptcy Court does not approve this Stipulation or if it is overturned or modified on appeal, this Stipulation shall be of no further force and effect, and neither the Stipulation nor any negotiations and writings in connection with the Stipulation shall be in any way construed as or deemed to be evidence or an admission on behalf of any Party hereto regarding any claim or right that such party may have against any other party hereto.
9. Successors and Assigns. The Stipulation shall be binding on the Parties hereto and their respective successors and assigns.
10. Counterparts. The Stipulation may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more such counterparts have been signed by each of the Parties and delivered to the other party. Facsimile signatures shall be binding to the same effect as originals.
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SO ORDERED.