ARTHUR GONZALEZ, Bankruptcy Judge
This Stipulation and Consent Order (the "Stipulation") is entered into between Enron Corp. ("Enron"), one of the Reorganized Debtors in the above-captioned cases, and Northern Gas Processing Limited ("NGPL" and, together with Enron, the "Parties").
WHEREAS, commencing on December 2, 2001, and periodically thereafter, Enron and certain of its affiliates each filed a voluntary petition for relief under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101- 1330 (as amended, the "Bankruptcy Code") in the United States Bankruptcy Court for the Southern District of New York (the "Bankruptcy Court"), which chapter 11 cases have been procedurally consolidated for administrative purposes only;
WHEREAS, on or about April 28, 2004, NGPL filed a proof of claim (Claim No. 24765) against Enron (the "NGPL Claim"). The NGPL Claim asserts a claim against Enron allegedly arising out of a 1994 transaction pursuant to which, among other things, NGPL (1) acquired a gas fractionation plant and land located in Teesside, England from Enron Europe Liquids Processing ("EELP"), a non-debtor affiliate of Enron, and (2) entered into an Amended and Restated Tolling Contract (the "Tolling Contract"), dated as of March 31, 1994 with EELP. Enron guaranteed the obligations of EELP under the Tolling Contract pursuant to a Guaranty Agreement, dated March 31, 1994 (the "Guaranty");
The NGPL Claim incorporated by reference proof of claim no. 13041, which was filed by NGPL on or about October 9, 2002, and was expunged by order of the Bankruptcy Court dated October 13, 2004.
WHEREAS, on January 31, 2005, Enron filed that certain Objection To Proof Of Claim No. 24765 Filed By Northern Gas Processing Limited Pursuant To Claims Estimation Procedures (Estimation Objection No. 19) (the "Objection") (Docket No. 23282);
WHEREAS, this Stipulation contains the terms agreed to by the Parties with respect to the estimation of the NGPL Claim and the resolution of the Objection.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Stipulation, in an effort to avoid unnecessary expenses and litigation, and with the intent to be legally bound, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is agreed between the Parties as follows:
1. Allowance of NGPL Claim. The Parties agree that, pursuant to section 502(c) of the Bankruptcy Code and Bankruptcy Rule 3007, Claim 24765 shall be an Allowed Class 4 General Unsecured Claim Against Enron in the amount of Sixty-Three Million Dollars ($63,000,000) for all purposes in these cases including distributions (the "Allowed Claim"). All scheduled liabilities related to NGPL as set forth in the Schedules (as defined in the Plan) are hereby disallowed in their entirety in favor of the Allowed Claim. Nothing in this Stipulation is intended to affect any rights or claims that NGPL may have against EELP to the fullest extent permitted by applicable law. Irrespective of any assignment or other transfer by NGPL of all or any portion of its rights in the Allowed Claim, this Stipulation and Section 4 of the Guaranty (a true and correct copy of which is attached to this Stipulation) shall continue to be in force and effect in accordance with their respective terms.
As such term is defined in the Fifth Amended Joint Plan of Affiliated Debtors Pursuant to Chapter 11 of the Bankruptcy Code (the "Plan").
2. Resolution of Objection. The Objection is hereby withdrawn.
3. Authority and Representations. The Parties hereto represent and warrant to each other that: (i) the signatories to this Stipulation are authorized to execute this Stipulation; (ii) each has full power and authority to enter into this Stipulation; and (iii) this Stipulation is duly executed and delivered, and constitutes a valid, binding agreement in accordance with its terms. NGPL hereby represents and warrants that it is the lawful holder of Claim No. 24765 and has not transferred and will not transfer prior to the Effective Date (as defined below) the NGPL Claim to any party.
4. The Parties further represent and agree that they have each had the opportunity to consult with their respective attorneys regarding this Stipulation, including, but not limited to, the opportunity for counsel to review this Stipulation. The Parties represent and agree that they have each carefully read and fully understand all of the provisions of this Stipulation and that the Stipulation is entered into voluntarily. The Parties additionally represent and agree that the terms and provisions of this Stipulation shall not be construed against the party that drafted the Stipulation.
5. Binding Nature. This Stipulation (i) shall inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns and (ii) shall be binding upon and enforceable against the Parties and their respective successors and assigns upon the entry of an order of the Bankruptcy Court approving this Stipulation.
6. Bankruptcy Court Approval. This Stipulation is expressly subject to and contingent upon its approval by the Bankruptcy Court. If this Stipulation, or any portion hereof, is not approved by the Bankruptcy Court or if it is overturned or modified on appeal, this Stipulation shall be of no further force and effect, and, in such event, neither this Stipulation nor any negotiations and writings in connection with this Stipulation 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, that if this Stipulation is not ruled upon by the Bankruptcy Court on or before November 30, 2005, the Parties agree that the amount of the Allowed Claim shall constitute, without further order of the Bankruptcy Court, the agreed upon amount of the claims to be settled hereunder for purposes of the Disputed Claims Reserve (as defined in the Plan) solely for the purpose of enabling the Disbursing Agent (as defined in the Plan) to make distributions to Allowed General Unsecured Claims (as defined in the Plan) and expressly not for purposes of allowance or distribution.
7. Non-Severability. The provisions of this Stipulation are mutually interdependent, indivisible and non-severable.
8. Entire Agreement. This Stipulation constitutes the entire agreement between the Parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, written and oral, between the Parties with respect to the subject matter hereof. This Stipulation may not be modified or amended except in writing signed by all of the Parties. All representations, warranties, promises, or statements of intention made by the Parties hereto are embodied in this Stipulation, and no Party hereto shall be bound by, or liable for, any alleged representation, warranty, inducement or statement of intention that is not expressly embodied herein. The Parties represent and warrant that this Stipulation discloses all of the terms of the Parties' agreement with respect to the NGPL Claim and the Objection.
9. Effective Date. This Stipulation 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 (the "Effective Date") when one or more such counterparts have been signed by each of the Parties and delivered to all Parties, and the Bankruptcy Court has approved and entered the Stipulation on the docket of the Bankruptcy Court.
10. Retention of Jurisdiction. The Bankruptcy Court shall retain exclusive jurisdiction to interpret, implement and enforce the provisions of this Stipulation, 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.
IN WITNESS WHEREOF, the Parties have executed this Stipulation on October 17, 2005.
So Ordered.