Case No. 01-16034 (AJG), Jointly Administered.United States Bankruptcy Court, S.D. New York.
April 29, 2005
CADWALADER, WICKERSHAM TAFT LLP., Edward A. Smith, (ES 2461), One World Financial Center, New York, NY., Special Counsel to the Debtors.
GIBBONS, DEL DEO, DOLAN, GRIFFINGER VECCHIONE, PC., Dale E. Barney, One Pennsylvania Plaza, New York, NY, Attorneys for TDC Energy LLC.
STIPULATION AND AGREED ORDER REGARDING WITHDRAWAL AND EXPUNGEMENT OF REQUEST FOR PAYMENT OF ADMINISTRATIVE EXPENSE CLAIM OF TDC ENERGY LLC
ARTHUR GONZALEZ, Bankruptcy Judge
TDC Energy LLC (“TDC”) and Enron Corp., et al., the debtors in the captioned chapter 11 cases (“Debtor”), by their respective counsel, hereby stipulate and agree as follows:
WHEREAS, on December 2, 2001 (the “Petition Date”), the Debtor commenced the captioned chapter 11 case by filing a voluntary petition for relief under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101–1330 (the “Bankruptcy Code”) in the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”);
WHEREAS, the Bankruptcy Court confirmed the Debtor’s Supplemental Modified Fifth Amended Joint Plan of Affiliated Debtors, etc. (“Plan”) by Order dated July 15, 2004, the Effective Date of the Plan occurred on November 17, 2004, and the bar date for the filing of requests for payment of administrative claims pursuant to 11 U.S.C. § 503 was set as January 17, 2005 pursuant to the terms of Plan;
WHEREAS, TDC filed a Request for Payment of Administrative Expense Claim of TDC Energy LLC Pursuant to Section 503(b)(1)(A) of the Bankruptcy Code on January 11, 2005 in the aggregate amount of $249,801.95, plus reasonable attorneys’ fees to be quantified at a later date (the “Administrative Claim”), representing the total amount of TDC’s claimed loss
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incurred as a result of the Debtor’s post-petition defaults and liabilities under certain contracts and documents identified in the Administrative Claim;
WHEREAS, TDC, the Debtor and NiSource, Inc. entered into a “Settlement Agreement” resolving all disputes between and among them, which was approved by the Bankruptcy Court by Order Approving Settlement Agreement Among Enron North America Corp., NiSource Inc. and TDC Energy LLC dated March 31, 2005;
WHEREAS, the Settlement Agreement requires that TDC cause the Administrative Claim to be withdrawn with prejudice and expunged as a claim against the Debtor and its chapter 11 estate;
NOW THEREFORE, for and in consideration of the mutual promises, covenants, and obligations set forth below, and for good and valuable consideration as stated herein, the sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Court Filing: Promptly after execution of this Stipulation, the Debtor will file this Stipulation with the Bankruptcy Court and seek its approval by the Bankruptcy Court.
2. Withdrawal and Expungement of Administrative Claim: As of the Stipulation Effective Date (as defined below), the Administrative Claim filed with the Bankruptcy Court by or on behalf of TDC against the Debtor shall be deemed to be irrevocably withdrawn, with prejudice, and to the extent applicable expunged, and all claims set forth in the Administrative Claim shall be deemed disallowed in their entirety.
3. Entire Agreement: The Debtor and TDC acknowledge that no promise, inducement, or agreement not stated here has been made to them in connection with this Stipulation, and that this Stipulation constitutes the entire agreement between them with respect to the subject matter hereof. The Debtor and TDC understand and agree that this Stipulation may not be altered, amended, modified, or otherwise changed in any respect whatsoever except
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by a writing duly executed by the Debtor and TDC. The Debtor and TDC agree and acknowledge that they will make no claim at any time or place that this Stipulation has been orally altered or modified or otherwise changed by oral communication of any kind or character.
4. Counterparts: This Stipulation may be executed simultaneously or in one or more counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument. A facsimile copy of a signature page is the equivalent of an original signature page.
5. Choice of Law: This Stipulation shall be governed by, construed, and enforced in accordance with the laws of the State of New York without giving effect to the provisions, policies, or principles thereof relating to choice of law or conflict of laws.
6. Authority: Each of the representatives signing this Stipulation represents that he or she has the authority to execute this Stipulation on behalf of the party for which executed and to bind that party to all representations and terms set forth herein.
7. Stipulation Effective Date: This Stipulation shall become effective (the “Stipulation Effective Date”) on the date on which an order entered by the Bankruptcy Court approving this Stipulation has become a final, non-appealable order.
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IN WITNESS WHEREOF, this Stipulation is executed as of the 20th day of April, 2005.
SO ORDERED:
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