Case No. 01-16034 (AJG), Jointly Administered.United States Bankruptcy Court, S.D. New York.
September 28, 2005
Russell L. Munsch (Pro Hac Vice), Kevin M. Lippman, Dallas, Texas, ATTORNEYS FOR LINDEN #2 LLC, by and through its counsel, MUNSCH HARDT KOPF HARR, P.C.
Martin J. Bienenstock (MB 3001), Brian S. Rosen (BR 0571), Melanie Gray (Pro Hac Vice), New York, New York, ATTORNEYS FOR REORGANIZED DEBTORS, by and through their counsel, WEIL GOTSHAL
MANGES LLP.
STIPULATION AND ORDER BY AND BETWEEN ENRON CORP., ENRON CAPITAL TRADE RESOURCES INTERNATIONAL CORP., ENRON NORTH AMERICA CORP., AND LINDEN #2 LLC REGARDING PROOFS OF CLAIM NOS. 16179, 24423, 25380, AND 25381
ARTHUR GONZALEZ, Bankruptcy Judge
Enron Corp. (“Enron”), Enron Capital Trade Resources International Corp. (“ECTRIC”), Enron North America Corp. (“ENA”, and together with Enron, and ECTRIC, the “EnronParties”), as reorganized debtors, and Linden #2 LLC, f/k/a Fortistar Linden LLC (“Linden”, and together with the Enron Parties, the “Parties”), by and through their respective undersigned counsel, hereby stipulate and agree as follows:
RECITALS:[1] Procedural Background:
A. On December 2, 2001, and from time to time thereafter, Enron Corp. and certain of its direct and indirect subsidiaries (collectively, the “Debtors”)[2] filed voluntary petitions for relief under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101 et seq. (the “BankruptcyCode”).
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B. On July 15, 2004, the Court entered an 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.
Background, the Proofs of Claim, and Claim Objections:
C. On October 15, 2002, SB Linden, LLC (“SB Linden”) filed a proof of claim in the amount of $4,075,363, which was assigned Claim No. 16178 (“Claim No. 16178”). S.B. Linden listed the “Debtor” on the proof of claim form for Claim No. 16178 as “Enron Capital Trade Resources Corp.” and listed the case number assigned to ECTRIC’s chapter 11 case. Therefore, Claim No. 16178 was docketed as a claim in ECTRIC’s chapter 11 case.
D. On October 15, 2002, SB Linden filed a proof of claim in the amount of $4,075,363, which was assigned Claim No. 16179 (“ClaimNo. 16179”) in Enron’s chapter 11 case.
E. On or about July 14, 2003, SB Linden purportedly transferred Claim No. 16179 and Claim No. 16178 to Stonehill Institutional Partners, L.L.P. (“Stonehill”).
F. On about October 29, 2003, Stonehill filed a proof of claim in the amount of $7,835,348.62, which was assigned claim no. 24423 (the “Claim No. 24423”).
G. On January 9, 2004, the Debtors filed their Twenty-Sixth Omnibus Objection to Proofs of Claim (Duplicate Claims and Amended or Superceded Claims) (the “26th Objection”), pursuant to which the Debtors sought to disallow and expunge Claim No. 16718 as it was amended and superceded by Claim No. 24423. See
Docket No. 15307.
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H. On February 26, 2004, the Court entered its Order Granting the Debtors’ Twenty-Sixth Omnibus Objection to Proofs of Claim (Claims Based on Duplicate Claims and Amended or Superceded Claims), pursuant to which Claim No. 16178 was disallowed and expunged as duplicative of Claim No. 24423. See Docket 16548.
I. On May 6, 2004, Linden filed a notice of transfer of claim regarding the transfer of Claim No. 16179 from SB Linden to Linden (the “Transfer Notice”). See Docket No. 18254.
J. On June 3, 2004, Linden filed an amendment to the Transfer Notice (the “Amended Transfer Notice”) regarding the transfer of Claim No. 16178 and Claim No. 16179 from SB Linden to Linden.See Docket No. 18895.
K. On June 21, 2004, Stonehill filed an objection to the Amended Transfer Notice (the “Stonehill Objection”). See
Docket No. 19247.
L. On August 5, 2004, the Court held a hearing regarding the Stonehill Objection. At the conclusion of such hearing, the Court requested additional documents and adjourned the hearing on the Stonehill Objection for a future date.
M. On December 17, 2004, the Reorganized Debtors filed their Seventieth Omnibus Objection to Proofs of Claim (No Amount Due Per Debtors’ Books and Records and Insufficient Proof) (the “70th Objection”), pursuant to which the Reorganized Debtors sought to have Claim No. 16179 and Claim No. 24423 disallowed and expunged. See Docket No. 22584.
N. On January 18, 2005, Stonehill filed its response to the 70th Objection (the “Stonehill Response”). See Docket No. 23085.
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O. On January 20, 2005, the Court heard further arguments on the Stonehill Objection to the Amended Transfer Notice.
P. On January 31, 2005, BNP Paribas filed its response to the 70th Objection. See Docket No. 23286.
Q. On June 16, 2005, the Court issued its Memorandum Opinion Regarding Stonehill Institutional Partners, L.P.’s Objection to Notice of Transfers of Claim Nos. 24423 (Formerly Claim No. 16178) 16179 (the “Memorandum Opinion”), pursuant to which the Court held that Claim No. 16179 and Claim No. 24423 were transferred to, and are now owned and held by, Linden.[3] See Docket No. 26147. On June 30, 2005, the Court entered an order consistent with its Memorandum Opinion, which overruled the Stonehill Objection. See Docket No. 26399.
R. On or about August 10, 2005, Linden filed a proof of claim in the amount of $13,352,718 in Enron’s chapter 11 case, which was assigned claim no. 25380 (“Claim No. 25380”). Linden asserts that Claim No. 25380 amended Claim No. 16179. The Reorganized Debtors dispute this assertion.
S. On about August 10, 2005, Linden filed a proof of claim in the amount of $13,352,718 in ENA’s chapter 11 case, which was assigned claim no. 25381 (“Claim No. 25381”). Linden asserts that Claim No. 25381 amended Claim No. 24423. The Reorganized Debtors dispute this assertion.
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T. The Parties now desire to resolve certain issues on the terms and conditions provided herein with regard to (i) Claim No. 16179, (ii) Claim No. 25380, (iii) Claim No. 24423, and (iv) Claim No. 25381.
AGREEMENT
NOW, THEREFORE, IT IS HEREBY AGREED BY THE PARTIES, BY AND THROUGH THEIR RESPECTIVE COUNSEL, AS FOLLOWS:
1. Claim No. 16179 and Claim No. 24423 shall be disallowed and expunged.
2. The 70th Objection shall continue to be applicable to Claim No. 25380 and Claim No. 25381. The Reorganized Debtors reserve all rights to further supplement and/or amend the 70th Objection to Claim No. 25380 and Claim No. 25381, file any other pleading, seek discovery related thereto, if necessary, and object to any further claims, new or amended, which may be filed by Linden.
3. Linden reserves its rights to reply to any further or supplemental objections or other pleadings as may be filed in connection with Claim No. 25380 and Claim No. 25381 by the Reorganized Debtors and its rights to further amend such claims.
4. The Parties agree to adjourn the hearing on the 70th Objection with regard to Claim No. 25380 and Claim No. 25381 until twenty (20) days after such time as the Court either (i) issues and enters its memorandum opinion and order regarding the Reorganized Debtors’ Objection to the Proof of Claim filed by Midland Cogeneration Venture Limited Partnership, Claim No. 24829, arguments for which was heard on June 8, 2005, or (ii) approves a settlement with respect to Claim No. 24829. The Court shall thereafter establish dates, and if appropriate,
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procedures for (a) the filing of any additional pleadings (b) completion of discovery, (c) exchanging witness and exhibit lists, and (d) a trial with respect to the Objection to Claim No. 25380 and Claim No. 25381 and any other claim filed by Linden.
5. This Stipulation and Order is expressly subject to and contingent upon its approval by the Court. If this Stipulation and Order, or any portion hereof, is not approved by the Court or if it is overturned or modified on appeal, this Stipulation and Order shall be of no further force and effect, and, in such event, neither this Stipulation and Order nor any negotiations and writings in connection with this Stipulation and Order shall in any way be construed as or deemed to be evidence of or an admission on behalf of any Party hereto regarding any claim or right that such Party may have against any other party hereto,provided, however, if this Stipulation and Order is not ruled upon by the Court on or before November 30, 2005, the Parties agree that, without further order of the Court, for purposes of the Disputed Claims Reserve (as defined in the Plan) and solely for the purpose of enabling the Disbursing Agent to make distributions to Allowed General Unsecured Claims (as defined in the Plan) and expressly not for purposes of allowance or distribution with respect to Claim No. 25380 and Claim No. 25381 or any amendments thereto, the amount of Claim No. 16179 and Claim No. 24423 each shall be zero ($0), and the amount of Claim No. 25380 and Claim No. 25381 each shall be the amounts as set forth in those claims.
6. The Parties agree that this Stipulation and Order may not be modified or amended except by a writing signed by all the Parties hereto, which shall be so ordered by the Court.
7. 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.
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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.
SO ORDERED.