Case No. 03-46590(DML)11, Jointly Administered.United States Bankruptcy Court, N.D. Texas.
October 6, 2004
Thomas E Lauria, State Bar No. 11998025, WHITE CASE LLP, Miami, FL, Robin Phelan, State Bar No. 15903000, HAYNES AND BOONE, LLP, Dallas, TX, Attorneys for the Debtors and Debtors in Possession.
ORDER GRANTING DEBTORS’ MOTION PURSUANT TO RULE 9019 OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE FOR ORDER APPROVING TAX SETTLEMENT AGREEMENT
DENNIS MICHAEL LYNN, Bankruptcy Judge
Upon the Motion (the “Motion”), dated August 31, 2004, filed by Mirant Corporation (“Mirant”) and its affiliated debtors, as debtors and debtors in possession (collectively, the “Debtors”), pursuant to Rule 9019 of the Federal Rules of Bankruptcy Procedure for entry of an order approving a settlement agreement, dated August 25, 2004 (the “Settlement Agreement”), between Mirant New York, Inc. on behalf of itself and Mirant NY-Gen, LLC (collectively “Mirant NY”) and the Town of Wawayanda, the Assessor for the Town of Wawayanda, and the Board of Assessment Review of the Town of Wawayanda; and it appearing that the Court has jurisdiction over this matter; and it appearing that due notice of the Motion has been provided,
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and that no other or further notice need be provided, upon all of the proceedings had before the Court; and after due deliberation and sufficient cause appearing therefore,
It is hereby
ORDERED, that the Motion is hereby GRANTED; and it is further
ORDERED that the Debtors’ entry into the Settlement Agreement, which is attached as Exhibit A, is hereby approved by the Court; and it is further
ORDERED that the portion of the 505 Action in relation to the Mirant Property, as defined in the Settlement Agreement, is hereby dismissed.
Exhibit A to Bankruptcy Rule 9019 Motion SETTLEMENT AGREEMENT
This agreement, dated as of this 25 day of August, 2004 (the “Agreement”), is entered into by and between Mirant New York, Inc. on behalf of itself and Mirant NY-Gen, LLC (collectively “Mirant NY”), the Town of Wawayanda (the “Town”), the Assessor of the Town of Wawayanda (the “Assessor”), the Board of Assessment Review of the Town of Wawayanda (the “Board”) (collectively, the “Tax Authorities”).
WHEREAS, Mirant NY is the record owner of a certain parcel of real property (and the improvements thereon) located in the Town and identified on the 2000 assessment rolls of the Town as Parcel SBL# 1-1-1 and the 2001-03 assessment rolls of the Town as Parcel SBL#1-1-1.1, which is generally known as the Shoemaker Generating Station (the “Mirant Property”);
WHEREAS, Mirant NY is the petitioner in actions bearing Index Nos. 4636/00, 4933/01, 5023/02 and 5278/03 (the “Actions”) pursuant to Article 7 of New York Real Property Tax Law (the “RPTL”) pending in the Supreme Court for the State of New York, Orange County (the “State Court”) seeking review of the assessments made with respect to the Property for the tax years 2000, 2001, 2002 and 2003;
WHEREAS, on July 14, 2003, Mirant NY commenced a case (the “Chapter 11 Case”) under chapter 11, title 11 United States Code (11 U.S.C. § 101 et seq.) (the “Bankruptcy Code”) by filing a voluntary petition for relief with the United States Bankruptcy Court for the Northern District of Texas, Ft. Worth Division (the “Bankruptcy Court”);
WHEREAS, Mirant NY has commenced an action (the “505 Action”) in the Bankruptcy Court under section 505 of the Bankruptcy Code to seek a determination of the taxes it owes with respect to the Property for the years 2000, 2001, 2002 and 2003;
WHEREAS, in order to avoid the cost, delay and uncertainly of litigation, Mirant NY and the Tax Authorities (collectively, the “Parties”) now wish to settle and compromise all issues and disputes between them with respect to the Actions, the 505 Action and the Proofs of Claim on the terms set forth herein.
NOW THEREFORE, for good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Parties hereby covenant and agree as follows:
1. Assessments. The assessments for the Mirant Property for the tax years 2004, 2003, 2002, 2001 and 2000 assessment rolls shall be reduced as follows:
(a) Tax Year 2003-04 Assessment Rolls:
Parcel Original Assessment Revised Assessment Difference
SBL# 1-1-1.1 $7,200,000 $3,915,328 $3,284,672
(b) Tax Year 2002-03 Assessment Rolls:
Parcel Original Assessment Revised Assessment Difference
SBL# 1-1-1.1 $7,760,000 $6,984,000 $776,000
(c) Tax Year 2001-02 Assessment Rolls:
Parcel Original Assessment Revised Assessment Difference
SBL# 1-1-1.1 $7,760,000 $6,984,000 $776,000
(d) Tax Year 2000-01 Assessment Rolls:
Parcel Original Assessment Revised Assessment Difference
SBL# 1-1-1. $3,704,400 $3,333,960 $370,440
2. Revision of Assessment Rolls. The Town shall cause the officer or officers having custody of the 2000, 2001, 2002, 2003 and 2004 tax year assessment rolls of the Town to make or cause to be made upon the proper books and records and upon the 2000, 2001, 2002, 2003 and 2004 assessment rolls of the Town, the entries, changes and corrections necessary to conform the assessments of the Mirant Property to such corrected and reduced assessments for the 2000, 2001, 2002, 2003 and 2004 assessment years as set forth in section 2.
3. Prospective Effect. The revised assessments set forth in paragraph 2(a) hereof shall constitute the final assessments for the Mirant Property for each of the tax year 2004, 2005 and 2006 assessment rolls and, during such period, the Parties shall not seek to modify such assessments, either directly or indirectly, under any circumstance, except as expressly provided in RPTL § 727.
4. Payment of Refunds. Any and all refunds due for the reductions in assessments as stated above shall be applied as payment in full to the outstanding and unpaid 2003-04 School and Library taxes and to the 2004 County and Town taxes and the Town of Waywayanda, the County of Orange and the Middletown School District shall mark said taxes as paid in full pursuant to Court Order on their respective tax rolls for the 2003-2004 tax year.
5. Admissibility. This Agreement, as well as all facts and circumstances with respect to the negotiation and execution hereof, shall not be admissible in any action or proceeding before any court of law or administrative body for any purpose, except in an action or proceeding (a) which is brought before the Bankruptcy Court for approval of this Agreement, (b) which does not directly involve any Tax Authority, or (c) which is brought for the enforcement of the provisions hereof. Notwithstanding, nothing herein shall prohibit any party from attempting to offer into evidence any tax rolls, any assessment rolls, and/or any notice of change of assessment, or prevent a party from opposing admission of such records on any ground other than this section 5. In addition, the waiver of the penalties and interest pursuant to this Agreement shall not be admissible or have any precedential effect or value or be admitted into evidence in any other tax proceeding and/or bankruptcy court proceeding involving Mirant NY or any other affiliate or related party thereto, on the one hand, and one or more of the Tax Authorities, on the other.
6. Authorizations. The Parties and the persons entering into and signing this Agreement on their behalf have the necessary authority to do so. The Parties have duly agreed to this settlement, taken the necessary action to do so and were duly authorized and empowered the persons signing this Agreement to do so; provided, that Mirant NY’s entry into this Agreement and performance of its obligations hereunder is subject to obtaining entry by the Bankruptcy Court of the Approval Order (as defined in paragraph 8 below).
7. Bankruptcy Court Approval. Within five (5) business days of the full execution and delivery of this Agreement by all Parties, Mirant NY shall file a motion with the Bankruptcy Court seeking approval of the compromise and settlements contained herein pursuant to Bankruptcy Rule 9019 (the “Approval Motion”). Each of the Parties hereto shall use its reasonable best efforts to obtain timely entry by the Bankruptcy Court of an order approving this Agreement (the “Approval Order”) on substantially the same terms set forth in the form order attached hereto as Exhibit “A.” In that regard, all Parties stipulate and agree (and specifically agree not to dispute) that the Bankruptcy Court has the jurisdiction and authority to entertain the Approval Motion and to enter and enforce the Approval Order.
8. Effective Date. This Agreement shall become binding and effective on the first business day after the tenth day (excluding legal holidays) after the entry of the Approval Order.
9. Dismissal of the Actions and Limited Releases. Upon the occurrence of the Effective Date, (a) the Parties shall use their reasonable best efforts to obtain timely entry of an order by the Supreme Court dismissing the Actions with prejudice by executing and presenting to the Supreme Court a stipulation of discontinuance with prejudice, a form of which is attached hereto as Exhibit “B,” and (b) any and all Proofs of Claim concerning the Mirant property shall be deemed to be withdrawn and of no effect without the need for the Parties to take any further action; and (i) the Tax Authorities, intending to be bound on behalf of themselves, their subsidiaries, affiliates, successors, predecessors, assigns (past, present and future), directors, officers, agents, attorneys, insurers, employees, stockholders, representatives, trustees and all persons acting by, through, under or in concert with them (collectively, the “Tax Authority Entities”), ABSOLUTELY IRREVOCABLY, UNCONDITIONALLY, FULLY AND FOREVER, ACQUIT, RELEASE AND DISCHARGE Mirant NY and its parents, subsidiaries, affiliates, successors, predecessors, assigns (past, present and future), directors, officers, agents, attorneys, insurers, employees, stockholders, representatives, trustees and all persons acting by, through, under or in concert with them (collectively, the “Mirant Entities”), from any and all claims, causes of action, demands, obligations, charges, complaints, controversies, damages, liabilities, costs, expenses, judgments, guarantees, agreements, or defaults of every and any nature, whether now apparent or yet to be discovered or which may subsequently develop arising out of or in any way related to, in whole or in part, all matters (x) that concern the Mirant Property and (y) that form the basis of the Actions, the 505 Action or the Proof of Claim, including without limitation all claims asserted therein and any related claims that could have been asserted therein concerning the assessment of real property taxes against the Mirant Property that are the subject of this Agreement, whether known or unknown; and (ii) the Mirant Entities ABSOLUTELY, IRREVOCABLY, UNCONDITIONALLY, FULLY AND FOREVER, ACQUIT, RELEASE AND DISCHARGE the Tax Authority Entities from any and all claims, causes of action, demands, obligations, charges, complaints, controversies, damages, liabilities, costs, expenses, judgments, guarantees, agreements or defaults of every and any nature, whether now apparent or yet to be discovered or which may subsequently develop, arising out of or in any way related to, in whole or in part, all matters (x) that concern the Mirant Property and (y) that form the basis of the Actions, the 505 Action or the Proof of Claim, and any related claims that could have been asserted therein concerning the assessment of real property taxes imposed against the Mirant Property that are the subject of this Agreement, whether known or unknown. The provisions of this subsection (c) shall not apply, however, with respect to any claims arising under this Agreement.
10. Entire Agreement; Amendment. This Agreement shall be governed by the laws of the State of New York. This Amendment constitutes the entire agreement by the Parties relating to the subject matter hereof and supersedes all prior agreements, arrangements and understandings between the Parties. This Amendment may only be modified or amended by a writing signed by all of the Parties.
TOWN OF WAWAYANDA, THE ASSESSOR OF THE TOWN OF WAWAYANDA and THE BOARD OF ASSESSMENT REVIEW OF THE TOWN OF WAWAYANDA.
Exhibit A to Settlement Agreement
Thomas E Lauria Robin Phelan State Bar No. 11998025 State Bar No. 15903000WHITE CASE LLP HAYNES AND BOONE, LLP
Wachovia Financial Center 901 Main Street 200 South Biscayne Blvd. Suite 3100 Miami, FL 33131 Dallas, TX 75202 Telephone: (305) 371-2700 Telephone: (214) 651-5000 Facsimile: (305) 358-5744 Facsimile: (214) 651-5940
ATTORNEYS FOR THE DEBTORS AND DEBTORS IN POSSESSION
IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF TEXAS
In re Chapter 11 Case MIRANT CORPORATION, et al., Case No. 03-46590(DML)11 Debtors. Jointly Administered
ORDER GRANTING DEBTORS’ MOTION PURSUANT TO RULE 9019 OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE FOR ORDER APPROVING TAX SETTLEMENT AGREEMENT
Upon the Motion (the “Motion”), dated August __, 2004, filed by Mirant Corporation (“Mirant”) and its affiliated debtors, as debtors and debtors in possession (collectively, the “Debtors”), pursuant to Rule 9019 of the Federal Rules of Bankruptcy Procedure for entry of an order approving a settlement agreement, dated August __, 2004 (the “Settlement Agreement”), between Mirant New York, Inc. on behalf of itself and Mirant NY-Gen, LLC (collectively “Mirant NY”) and the Town of Wawayanda, the Assessor for the Town of Wawayanda, the Board of Assessment Review of the Town of Wawayanda; and it appearing that the Court has jurisdiction over this matter; and it appearing that due notice of the Motion has been provided, and that no other or further notice need be provided, upon all of the proceedings had before the Court; and after due deliberation and sufficient cause appearing therefore,
It is hereby
ORDERED, that the Motion is hereby GRANTED; and it is further
ORDERED that the Debtors’ entry into the Settlement Agreement, which is attached as Exhibit A, is hereby approved by the Court; and it is further
ORDERED that the portion of the 505 Action in relation to the Mirant Property, as defined in the Settlement Agreement, is hereby dismissed.
Dated: August __, 2004 __________________________________ Hon. D. Michael Lynn, United States Bankruptcy Judge
Exhibit B to Settlement Agreement
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE
In the Matter of the Application of
MIRANT NEW YORK, INC. and SOUTHERN ENERGY NY-GEN, LLC, STIPULATION OF
Petitioners, SETTLEMENT AND ORDER
-against- Index Nos. 4636/00 ASSESSOR OF THE TOWN OF 4933/01 WAWAYANDA, THE BOARD OF ASSESSMENT 5023/02 REVIEW OF THE TOWN OF WAWAYANDA AND 5278/03 THE TOWN OF WAWAYANDA,
Respondents.
For a Review of Tax Assessments under Article 7 of the Real Property Tax Law.
Petitioners, Mirant New York, Inc. and Southern Energy New York-Gen, LLC having brought the above-entitled proceedings pursuant to Real Property Tax Law Article 7 to review the assessments made by the Respondents for the years 2000, 2001, 2002 and 2003 on premises of the Petitioner described on the 2000, 2001, 2002 and 2003 assessment rolls of the Town of Waywayanda as follows:
Assessment Roll Parcel Assessment
2000 1-1-1 $3,704,400 2001 1-1-1.-1 $7,760,000 2002 1-1-1.-1 $7,760,000 2003 1-1-1.-1 $7,760,000
IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned, being the attorneys of record for each of the respective parties, that this proceeding be and hereby is settled upon the terms hereinafter set forth, without costs to either party as against the other, and the parties and the attorneys of record further stipulate and consent that, subject to the provisions in paragraph 12 herein, an order be entered in and that same be filed with the Office of the County Clerk of Orange, without further notice as follows:
1. The real property of Petitioners described on the Town of Wawayanda tax rolls for the tax year 2000-01 as follows:
Tax Map No. 1-1-1
be reduced in assessment from the sum of $3,704,400 to the sum of $3,333,960 for a total reduction in assessment of $370,440.
2. The real property of Petitioners described on the Town of Wawayanda tax rolls for the tax year 2001-02 as follows:
Tax Map No. 1-1-1.-1
be reduced in assessment from the sum of $7,760,000 to the sum of $6,984,000 for a total reduction in assessment of $776,000.
3. The real property of Petitioners described on the Town of Wawayanda tax rolls for the tax year 2002-03 as follows:
Tax Map No. 1-1-1.-1
be reduced in assessment from the sum of $7,760,000 to the sum of $6,984,000 for a total reduction in assessment of $776,000.
4. The real property of Petitioners described on the Town of Wawayanda tax rolls for the tax year 2003-04 as follows:
Tax Map No. 1-1-1.-1
be reduced in assessment from the sum of $7,200,000 to the sum of $3,915,328 for a total reduction in assessment of $3,284,672.
5. The officer or officers having custody of the aforesaid assessment rolls of the Town of Wawayanda, the County of Orange and the Middletown School District shall make or cause to be made upon the proper books and records and upon the assessment rolls of said Town, County and School District the entries, changes and corrections necessary to conform said assessment to such corrected and reduced valuations.
6. The Petitioners’ real property taxes for the 2000-01, 2001-02, 2002-03 and for 2003-04 School and Library taxes and for the 2001, 2002, 2003 and 2004 County and Town taxes be adjusted accordingly and that Petitioners can be credited as hereinafter set forth for any overpayment and/or be credited with the corresponding decrease in taxes, as the case may be.
7. The provisions of RPTL § 727 shall apply herein and the Petitioners agree not to challenge the assessments set forth on the tax rolls for 2004, 2005 and 2006 for the above parcel provided that the assessment for these years is not raised above the stipulated assessment of $3,915,328.
8. Any and all refunds due for the reductions in the assessments as stated above shall be applied as payment in full to the outstanding and unpaid 2003-04 School and Library taxes and to the 2004 County and Town taxes and the Town of Wawayanda, the County of Orange and the Middletown School District shall mark said taxes as paid in full pursuant to Court Order on their respective tax rolls for the 2003-04 tax year.
9. The charge back by Orange County of the unpaid 2003-04 taxes (2003-04 School and Library Taxes and 2004 County and Town taxes) to each taxing authority shall be as follows:
Middletown School District 70.23% Orange County 12.29% Town/Highway 9.10% New Hampton Fire 6.10% Thrall Library 2.28%
10. The parties and attorneys represent that the persons entering into and signing this Stipulation of Settlement have the necessary authority to do so, that said parties have duly agreed to this settlement, have taken the necessary action to do so and have duly authorized and empowered the persons signing this Stipulation of Settlement to do so.
11. The parties through their respective attorneys shall submit this Stipulation of Settlement and Order to Justice Thomas A. Dickerson for signature and entry.
12. The terms of this Stipulation of Settlement and Order are subject to the approval of the Bankruptcy Court of the Northern District of Texas, Fort Worth Division. The terms of this Stipulation of Settlement and Order are subject to the execution of a Settlement Agreement between the Petitioners and the Town of Wawayanda. The Parties shall instruct their respective bankruptcy court attorneys upon the execution of the Settlement Agreement to bring the motion for approval of the Settlement Agreement in Bankruptcy Court of the Northern District of Texas, Fort Worth Division within five (5) days from the date the Settlement Agreement is executed.
Dated: August __, 2004 COUCH WHITE, LLP Attorneys for the Petitioners
By: _______________________________ James J. Barriere, Esq. 540 Broadway, P.O. Box 22222 Albany, New York 12201-2222 (518) 426-4600
Dated: August __, 2004 JACOBOWITZ AND GUBITS, LLP Attorneys for the Respondents
By: _______________________________ John H. Thomas, Jr., Esq. 158 Orange Avenue, P.O. Box 367 Walden, New York 12586-0367 (845) 778-2121
Dated: August __, 2004 TOWN OF WAWAYANDA, THE ASSESSOR OF THE TOWN OF WAWAYANDA and THE BOARD OF ASSESSMENT REVIEW OF THE TOWN OF WAWAYANDA
By: __________________________________
Its: _________________________________
Dated: August __, 2004 SO ORDERED:
__________________________________ Hon. Thomas A. Dickerson, J.S.C.
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