Case No. 03-46591 (DML) Jointly Administered.United States Bankruptcy Court, N.D. Texas, Fort Worth Division.
November 23, 2004
Thomas E Lauria, Craig H. Averch, WHITE CASE LLP, Wachovia Financial Center, Miami, FL,
Robin Phelan, Judith Elkin, HAYNES AND BOONE, LLP, Dallas, TX, ATTORNEYS FOR THE DEBTORS AND DEBTORS IN POSSESSION.
STUTMAN, TREISTER GLATT, Professional Corporation, Los Angeles, California, Attorneys for Kern River Gas Transmission Company.
WHITE CASE LLP, Los Angeles, California, Attorneys for Debtors and Debtors In Possession.
JOINT STIPULATION AND AGREED ORDER RELATING TO PROOF OF CLAIM FILED BY KERN RIVER GAS TRANSMISSION COMPANY
DENNIS MICHAEL LYNN, Bankruptcy Judge
The following stipulation is entered into by and between Kern River Gas Transmission Company (“Kern River”) and Mirant Americas Energy Marketing, L.P. (“MAEM”) relating to Proof of Claim No. 7573 (“Claim No. 7573”) as amended by Proof of Claim No. 8121 (Claim No. 7573, as amended by Proof of Claim 8121, “Claim No. 8121”) filed by Kern River Gas Transmission Company (the “Joint Stipulation and Agreed Order”).
1. As used in this Joint Stipulation and Agreed Order, the following terms shall have the respective meanings set forth below:
a. The term “Bankruptcy Court” shall mean the United States Bankruptcy Court for the Northern District of Texas, Fort Worth Division.
b. The term “Claims Estimation Order” shall mean, collectively, the “Memorandum Order” entered by the Bankruptcy Court on October 22,Page 2
2004 and “Order Estimating Procedures For Estimating Claims” entered by the Bankruptcy Court on October 26, 2004.
c. The term “Claims Estimation Procedures” shall mean those procedures for the estimation of claims approved by the Bankruptcy Court in the Claims Estimation Order.
d. The term “Debtors” shall mean Mirant Corporation and its affiliated debtors, including MAEM, as debtors in possession.
e. The term “Kern River Agreement” shall mean the “Firm Transportation Service Agreement, Contract Number 1712,” as amended, entered into by Kern River and MAEM on or about May 29, 2001.
f. The “Notice of Intent to Estimate” shall mean the “Notice That Mirant Corporation Or Its Chapter 11 Debtor Affiliates May Seek To Estimate Claims Pursuant To Estimation Procedures, Kern River Gas Transmission Company (Proof Of Claim Number 7573)” filed by the Debtors on November 5, 2004.
g. The term “Objection” shall mean the “Tier IV Objection to Proof of Claim Filed by Kern River Gas Transmission Company (Claim No. 7573) and Request for Recovery of Postpetition Charges Exceeding the Allowed Administrative Expense” filed by the Debtors on October 13, 2004.
h. The term “Rejection Damages” shall mean that amount asserted by Kern River in Claim No. 7573 for the damages resulting from the rejection of the Kern River Agreement.
2. Kern River filed Claim No. 7573 against MAEM based upon a claim for damages arising out of MAEM’s rejection of the Kern River Agreement.
3. The Debtors, including MAEM, filed the Objection to Claim No. 7573 based upon, among other things, the fact that (a) Kern River had failed to mitigate and reduce the amount of the Rejection Damages to present value; and (b) Kern River did not hold a secured claim against the Debtors for the Rejection Damages.
4. In compliance with the Claims Estimation Order, the Debtors served the Notice of Intent to Estimate upon Kern River thereby notifying Kern River that Claim No. 7573 could be subject to the Claims Estimation Procedures.
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5. Kern River filed Proof of Claim No. 8121, thereby amending Claim No. 7573. In Claim No. 8121, Kern River, among other things, reduced the amount of the Rejection Damages asserted against MAEM by both: (a) discounting the damage calculation back to present value; and (b) reflecting actual dollars received by Kern River in mitigation of losses caused by the Debtors.
6. As set forth herein below and in furtherance of MAEM and Kern River’s desire to resolve MAEM’s Objection efficiently and based on their agreement to resolve MAEM’s Objection outside of the parameters set forth in the Claims Estimation Procedures, MAEM and Kern River stipulate as follows:
a. The Objection shall apply to Claim No. 8121 as if originally filed by Debtors against Claim No. 8121;
b. Claim No. 8121 shall be removed from the Claims Estimation Procedures and MAEM and Kern River shall be not required to comply with the requirements of the Claims Estimation Procedures as applicable to Claim No. 8121; and
c. MAEM and Kern River agree that a status conference to consider the Objection will be scheduled for February 2, 2004.
IT IS THEREFORE,
ORDERED that the entry of this Joint Stipulation and Agreed Order shall apply to Kern River and MAEM; it is further
ORDERED that this Court makes no findings of fact or conclusions of law that are not expressly set forth in this Joint Stipulation and Agreed Order; it is further
ORDERED that Claim No. 8121 against MAEM shall no longer be subject to the Claims Estimation Procedures and that Kern River and MAEM no longer be bound by the dates and other terms and conditions set forth in the Claims Estimation Procedures with respect to such claim; it is further
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ORDERED that the Objection shall apply to Claim No. 8121, as if originally filed by the Debtors against Claim No. 8121; and it is further
ORDERED that a status conference with respect to Claim No. 8121 will be held in this Court on February 2, 2004.
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7. By signing this Joint Stipulation and Agreed Order, MAEM and Kern River consent to the procedures set forth herein.
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