Case No. 01-16034, (AJG) Jointly Administered.United States Bankruptcy Court, S.D. New York.
February 7, 2005
Bendik Christoffersen, THOMMESEN KREFTING GREVE LUND AS Advokastfirma, ATTORNEYS FOR ADGER ENERGI PRODUKSJON AS.
Martin J. Bienenstock (MB 3001), Brian S. Rosen (BR 0571), Melanie Gray (Pro Hac Vice), Martin A. Sosland (Pro Hac Vice), WEIL GOTSHAL MANGES LLP, New York, New York, ATTORNEYS FOR DEBTORS AND DEBTORS IN POSSESSION.
STIPULATION AND ORDER REGARDING AGDER ENERGI PRODUKSJON AS PROOFS OF CLAIM NOS. 8129 AND 24691
ARTHUR GONZALEZ, Bankruptcy Judge
Enron Capital Trade Resources International Corp. (“ECTRIC”) and Agder Energi Produksjon AS (“Agder,” and together with ECTRIC, the “Parties”) by and through their respective undersigned counsel, hereby stipulate and agree as follows:
RECITALS: Procedural Background:
A. On December 2, 2001 (the “Filing Date”) and from time to time thereafter, Enron Corp. (“Enron”) and certain of its direct and indirect subsidiaries (collectively, the “EnronDebtors”) filed voluntary petitions for relief under chapter 11 of Title 11 of the United States Code (the “Bankruptcy Code”). On February 11, 2002, ECTRIC (together with the Enron Debtors, the “Debtors”) filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code. The Debtors continue to manage and operate their businesses as debtors-in-possession pursuant to Bankruptcy Code sections 1107 and 1108.
B. On December 12, 2001 and on March 27, 2002, respectively, pursuant to its authority under 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”) and the Employment Related Issues Committee.
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C. On July 15, 2004, the Court entered an order (the “Confirmation Order”) confirming the Debtors’ Fifth Amended Joint Plan of Affiliated Debtors Pursuant to Chapter 11 of the United States Bankruptcy Code, dated as of January 9, 2004, as subsequently modified (the “Plan”). The Effective Date of the Plan has not yet occurred.
The Proofs of Claim:
D. On or about October 10, 2002, Agder filed Proof of Claim No. 8129 in the Debtors’ bankruptcy cases (“Claim No. 8129”). In a letter to the Bankruptcy Court which accompanied Claim No. 8129, Agder asserted that following the commencement of ECTRIC’s chapter 11 case, Agder mistakenly transferred NOK 4,705,056 to ECTRIC in connection with certain electricity swap transactions (the “Transactions”). Agder alleges that the Transactions were terminated by mutual agreement of Agder and ECTRIC on or about December 4, 2001, and, due to the post-petition timing of the transfer, that the funds should be returned to Agder in full.
E. On or about March 23, 2004, Agder filed Proof of Claim No. 24691 in the Debtors’ bankruptcy cases (“Claim No. 24691” and, together with Claim No. 8129, the “Agder Claims”). Claim No. 24691 amends Claim No. 8129 and asserts a claim against ECTRIC in the amount of NOK 4,746,571 or US$687,928. In the attachments to Claim No. 24691, Agder states that the Agder Claims were filed “[i]n case [Agder’s] claim should not be accepted as a post-petition claim.”
F. ECTRIC has reviewed the Agder Claims and its books and records and the Parties now desire to provide for the allowance of Claim No. 24691 on the terms and conditions provided herein.
AGREEMENT
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NOW, THEREFORE, IT IS HEREBY AGREED BY THE PARTIES, BY AND THROUGH THEIR RESPECTIVE COUNSEL, AS FOLLOWS:
1. Allowance of Claim. On the Effective Date (as defined below), Proof of Claim No. 24691 shall be reduced, reclassified and/or allowed as follows: (a) US$526,086.80 which shall be allowed as an Administrative Expense Claim (as defined in the Plan) against ECTRIC pursuant to section 503(b)(1)(A) of the Bankruptcy Code, and (b) US$4,303.76 which shall be allowed as a Class 42 General Unsecured Claim (as defined in the Plan) against ECTRIC. Payments and/or distributions on account of such claim will be made in the manner provided and at the time set forth in the Plan.
2. Disallowance of Remaining Claim. On the Effective Date, Proof of Claim No. 8129 shall be disallowed and expunged in its entirety.
3. Entire Agreement. ECTRIC and Agder agree that this Stipulation and Order is the entire understanding of the Parties and is intended to be the complete and exclusive statement of the terms thereof and may not be modified or amended except by a writing signed by all the Parties hereto, which shall be so ordered by the Court.
4. Bankruptcy Court Approval. This Stipulation and Order is expressly subject to and contingent upon its approval by the Bankruptcy Court. If this Stipulation and Order, or any portion hereof, is not approved by the Bankruptcy 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, or otherwise.
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5. Effective Date. This Stipulation and Order may be executed in one or more counterparts and by facsimile, 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 all Parties, and the Bankruptcy Court has entered the Stipulation and Order on the docket of the Bankruptcy Court (the date on which all of such conditions have been satisfied being the “Effective Date”).
6. Governing Law. This Stipulation and Order shall be governed by, and construed in accordance with, the Bankruptcy Code and the laws of the state of New York, without regard to any principles of choice of law thereof which would require the application of the law of any other jurisdiction.
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7. Retention of Jurisdiction. The Bankruptcy Court shall retain exclusive jurisdiction to interpret, implement, and enforce the provisions of this Stipulation and Order, and the Parties hereby consent to exclusive jurisdiction of the Bankruptcy Court with respect thereto. The Parties waive arguments of lack of personal jurisdiction or forum non-conveniens with respect to the Bankruptcy Court.
SO ORDERED.
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