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Case 1:06-cv-00305-MBH Document 80 Filed 11/14/2007 Page 1 of 4

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

CONSOLIDATED EDISON COMPANY
OF NEW YORK, INC. & SUBSIDIARIES,

Plaintiff,

v.

THE UNITED STATES OF AMERICA,

Defendant.

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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.

Case 1:06-cv-00305-MBH Document 80 Filed 11/14/2007 Page 2 of 4

Therefore, the parties submit the attached replacement page, to be substituted in the

Stipulation Regarding Undisputed Facts:

Case 1:06-cv-00305-MBH Document 80 Filed 11/14/2007 Page 3 of 4

(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.

The Sublease Purchase Option

231.

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).

Case 1:06-cv-00305-MBH Document 80 Filed 11/14/2007 Page 4 of 4

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

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

/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

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