Free Stipulation - District Court of Federal Claims - federal

Case 1:06-cv-00305-MBH

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. & SUBSIDIARIES, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) )

Case No.: 06-305 T Hon. Marian Blank Horn

JOINT REQUEST TO AMEND STIPULATION PARAGRAPH 231 Plaintiff, Consolidated Edison Company of New York, Inc. ("Con Edison NY") and Subsidiaries, and defendant, the United States of America, by their undersigned counsel, hereby request the Court's permission to submit the following Amendment to the Stipulation Regarding Undisputed Facts. The parties acknowledge that the Court can and may make factual findings premised on these stipulations and that these findings may have preclusive effect beyond this litigation. Therefore, the parties request that the Court permit the correction of a typographical error located in paragraph 231 of the Stipulation Regarding Undisputed Facts. Paragraph 231 incorrectly states that the Sublease Purchase Option Price is equal to $275,450,950.25. As stated in paragraphs 165A and 167 of the Stipulation Regarding Undisputed Facts, the parties have stipulated that the Sublease Purchase Option Price is equal to $215,450,949.20. The parties have reviewed the testimony given to date for any references to the inaccurate amount stated in Paragraph 231, we found no reference. Apart from this request for correction of the typographical error found in paragraph 231, the parties reaffirm their statements made in the Stipulation Regarding Undisputed Facts, including the preamble.

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Therefore, the parties submit the attached replacement page, to be substituted in the Stipulation Regarding Undisputed Facts:

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(Exhibit 414, bates 8339-40); (b) December 8, 2003 (Exhibit 418, bates 8369-83); (c) November 22, 2004 (Exhibit 417, bates 8367-68); and (d) November 24, 2005 (Exhibit 416, bates 8365-66). 229. As required by the Operative Documents, EZH has adjusted the Required Amount

of the Letter of Credit for periods commencing after the Closing Date. Correspondence from EZH and successors indicates that the amount of the Letter of Credit was adjusted as set forth below: Period January 3, 1999 ­ January 2, 2000 January 3, 2000 ­ January 2, 2001 January 3, 2001 ­ January 2, 2002 Amount $29,050,809.59 $47,623,816.00 $50,068,980.67

(Exhibit 405, bates 8326; Exhibit 407, bates 8329-30; Exhibit 406, bates 8327-28) 230. The Reimbursement Agreement provides that if Bayerische Landesbank makes a

payment under the Letter of Credit, Bayerische Landesbank shall require that EZH pay to Bayerische Landesbank the amount paid by it under the Letter of Credit, including interest from the date of payment by Bayerische Landesbank. In addition, the Reimbursement Agreement states that EZH will indemnify Bayerische Landesbank against any costs or expenses arising out of or incurred in connection with the Letter of Credit. (Exhibit 35, Reimbursement Agreement § 6.3, bates 1301, bates 1308). D. 231. The Sublease Purchase Option Section 19 of the Sublease Agreement provides that if EZH elects the Sublease

Purchase Option, the Sublease Purchase Option Price of $215,450,950.20 can be paid (i) in cash or (ii) $123,615,472 in cash plus delivery of the remaining U.S. Government Obligations from the IJssel Deposit, valued at their respective maturity dates, as explained in paragraph 233. (Exhibit 4, bates 433, bates 479).

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Respectfully submitted, Dated: November 14, 2007 /s/ David F. Abbott David F. Abbott Attorney of Record MAYER BROWN LLP 1675 Broadway New York, NY 10019-5820 Tel: (212) 506-2642 Fax: (212) 849-5642 /s/ David N. Geier David N. Geier Attorney of Record Joseph A. Sergi Adam Smart Trial Attorneys, Tax Division U.S. DEPARTMENT OF JUSTICE P.O. Box 26, Ben Franklin Station Washington, D.C. 20044 Tel: (202) 616-3448 Fax: (202) 307-0054

Joel V. Williamson Thomas Kittle-Kamp Matthew C. Houchens Brian W. Kittle Daniel A. Cook MAYER BROWN LLP 71 South Wacker Dr. Chicago, IL 60606 Attorneys for Plaintiff

Richard T. Morrison Assistant Attorney General David Gustafson Chief, Court of Federal Claims Section Steven I. Frahm Asst. Chief, Court of Federal Claims Section