Case No. 01-16034 (AJG), Jointly Administered.United States Bankruptcy Court, S.D. New York.
August 10, 2005
Cesar Augusto Zamora Hinojos, Prisma Energy Servicios Nicaragua S.A., (f/k/a Enron Electricidad de Nicaragua, S.A.), Managua, Nicaragua, Central America, ATTORNEY FOR PRISMA ENERGY SERVICIOS NICARAGUA S.A.
Sylvia Ann Mayer, Martin J. Bienenstock, Brian S. Rosen, Melanie Gray (Pro Hac Vice), Sylvia Ann Mayer (Pro Hac Vice), WEIL GOTSHAL MANGES LLP, New York, New York, ATTORNEYS FOR THE REORGANIZED DEBTORS.
STIPULATION AND ORDER RESOLVING PROOF OF CLAIM NUMBER 24257 FILED BY PRISMA ENERGY SERVICIOS NICARAGUA S.A. (f/k/a ENRON ELECTRICIDAD DE NICARAGUA, S.A.)
ARTHUR GONZALEZ, Bankruptcy Judge
Enron Caribbean Basin LLC (“ECB”), as reorganized debtor (the “Reorganized Debtor”), and Prisma Energy Servicios Nicaragua S.A. (f/k/a Enron Electricidad de Nicaragua, S.A.) (“PrismaNicaragua” and together with the Reorganized Debtor, the “Parties”), by and through their respective undersigned counsel, hereby stipulate and agree as follows:
RECITALS:
WHEREAS, 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”) in the United States Bankruptcy Court for the Southern District of New York (the “Court”).
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WHEREAS, on or about September 26, 2003, Empresa Energetica Corinto, Ltd. (“Corinto”) filed proof of claim number 24256 against ECB in the amount of $53,229.62 (the “Corinto Claim”).
WHEREAS, on or about September 26, 2003, Enron Electricidad de Nicaragua, S.A. (“Enron Nicaragua”) filed proof of claim number 24257 against ECB in the amount of $145,963.36 (the “EnronNicaragua Claim”).[2]
WHEREAS, 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”). The Plan became effective on November 17, 2004, and the Reorganized Debtors emerged from chapter 11.
WHEREAS, the (i) Plan and (ii) contribution and separation agreement (the “CSA”), by and among Enron and certain of its affiliates named therein and Prisma Energy International Inc., which was approved by the Court on April 20, 2004, provide that the Debtors (or, as applicable, the Reorganized Debtors) may transfer certain international energy infrastructure businesses, including related equity, debt, contract rights or other interests, to Prisma Energy International Inc. and/or certain of its subsidiaries (collectively, “Prisma”) in exchange for shares in Prisma commensurate with the value of the asset contributed. (Docket No. 16783).
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WHEREAS, consistent with the Plan and the CSA, Enron transferred its indirect (i) 35% interest in Corinto and (ii) 99.8% interest in Enron Nicaragua to Prisma on or about September 30, 2004. Prisma is wholly owned by Enron.
WHEREAS, in furtherance of the transfer of Corinto and Enron Nicaragua to Prisma, Corinto transferred the Corinto Claim to Prisma Nicaragua. During the process of transferring the Corinto Claim, ECB and Prisma Nicaragua determined that the amount set forth in the Corinto Claim was incorrect.
WHEREAS, on or about March 8, 2005, after the transfer of the Corinto Claim to Prisma Nicaragua, Corinto filed a notice of withdrawal (the “Notice of Withdrawal”) with respect to the Corinto Claim and any claims that the Debtors scheduled on behalf of Corinto against ECB. (Docket No. 25121). Prisma Nicaragua opposes the withdrawal of the Corinto Claim.
WHEREAS, in order to resolve the Prisma Nicaragua Claim, the Parties have negotiated this Stipulation in good faith and, therefore, desire that it shall be binding upon each of them, their successors, heirs, and assigns; and
WHEREAS, the Parties believe this Stipulation is in their respective best interests.
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. The Prisma Nicaragua Claim shall be allowed as a General Unsecured Claim (as defined in the Plan) against ECB in the amount of $200,048.98 (the “Allowed Prisma Nicaragua Claim”).
2. Any and all claims that have been scheduled in favor of Enron Nicaragua (or, as applicable, Prisma Nicaragua) against ECB on the Debtor’s Schedule of Assets and Liabilities, as amended, are hereby disallowed in their entirety in favor of the Allowed Prisma Nicaragua Claim. Distributions to Prisma Nicaragua on the Allowed Prisma Nicaragua Claim shall be made in accordance with the Plan.
3. The Corinto Claim and any claims that the Debtors scheduled on behalf of Corinto against ECB shall be withdrawn in accordance with the Notice of Withdrawal.
4. The Parties hereby agree that this Stipulation and Order is the entire understanding of the Parties with respect to the Prisma Nicaragua Claim and is intended to be the complete and exclusive statement of the terms thereof. The Parties agree that each participated equally in the preparation of this Stipulation, and that no provision shall be construed against either as a draftsman.
5. This 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.
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6. This Stipulation and Order shall be binding on the Parties hereto and their respective successors and assigns.
7. The Court shall retain exclusive 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 may not be changed, modified, or amended except in a writing signed by the Parties and/or their counsel.
9. This Stipulation and Order may be executed in any number of counterparts and shall constitute one agreement, binding upon all Parties hereto as if all Parties signed the same document; all facsimile signatures shall be treated as originals for all purposes.
AGREED AS TO FORM AND SUBSTANCE.
SO ORDERED.