Case No. 01-16034 (AJG) Jointly AdministeredUnited States Bankruptcy Court, S.D. New York.
March 24, 2004
Martin J. Bienenstock, Brian S. Rosen, Sylvia Mayer Baker, WEIL, GOTSHAL MANGES LLP, New York, NY, for the Debtors and Debtors in Possession
Mark I. Bane, Jay N. Heinrich, KELLYE, DRYE WARREN LLP, New York, NY, for JPMorgan Chase Bank, as Agent
STIPULATION AND ORDER WITH RESPECT TO CHOCTAW, ZEPHYRUS AND SEQUOIA
ARTHUR GONZALEZ, Bankruptcy Judge
Enron Corp. and Enron North America Corp. (collectively, the “Stipulating Debtors”), and JPMorgan Chase Bank, as agent (“JPMC” and together with the Stipulating Debtors the “Parties”), by and through their respective counsel, do hereby stipulate as follows:
RECITALS
A. Commencing on December 2, 2001 (the “Petition Date”) and subsequently thereafter, Enron Corp. and certain of its affiliated entities (collectively, the “Debtors”) each filed a voluntary petition for relief under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) and the Debtors chapter 11 cases (the “Chapter 11 Cases”) have been procedurally consolidated for administrative purposes.
B. The Debtors have filed their Fifth Amended Joint Plan of Affiliated Debtors Pursuant to Chapter 11 of the United States Bankruptcy Code dated January 9, 2004 (the “Plan”), and accompanying Disclosure Statement for Fifth Amended Joint Plan of Affiliated Debtors Pursuant to Chapter 11 of the United States Bankruptcy Code (the “Disclosure Statement”).
C. On January 9, 2004, the Bankruptcy Court entered an order, inter alia, approving the Disclosure Statement as containing sufficient information to allow a holder of claims against or interests in the Debtors to vote for or against the Plan and establishing solicitation procedures
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with respect thereto (Docket No. 15303, Order Pursuant to Sections 105, 502, 1125, 1126, and 1128 of the Bankruptcy Code and Bankruptcy Rules 2002, 3003, 3017, 3018 and 3020(i) Approving the Disclosure Statement for Fifth Amended Joint Plan of Affiliated Debtors; (ii) Setting a Record Date for Voting Purposes; (iii) Approving Solicitation Packages and Procedures for Distribution Thereof; (iv) Approving Forms of Ballots and Establishing Procedures for Tabulation of the Vote on the Fifth Amended Joint Plan of Affiliated Debtors; and (v) Scheduling a Hearing and Establishing Notice and Objection Procedures in Respect of Confirmation of the Fifth Amended Joint Plan of Affiliated Debtors, the “Solicitation Procedures Order”).
D. On January 9, 2004, the Bankruptcy Court entered an order, inter alia, establishing voting procedures in these Chapter 11 Cases (Docket No. 15296, Order, Pursuant to Sections 105(a), 502, 1125 and 1126 of the Bankruptcy Code and Rules 3003, 3017 and 3018 of the Federal Rules of Bankruptcy Procedure Establishing Voting Procedures in Connection With the Plan Process and Temporary Allowance of Claims Procedures Related Thereto, the “Voting Procedures Order”).
E. JPMC is the Fiduciary, as such term is used in the Solicitation Procedures Order, for the Choctaw, Zephyrus and Sequoia Financing Transactions, as more fully described in Sections Ill. F.3 “Apache/Choctaw” and Ill. F.52 “Zephyrus/Tammy” of the Disclosure Statement (collectively, the “CZS Financing Transactions”).
F. Claim numbers 11125, 11126, 11127, 11128, 11129, 11130, 11131, 11132, 11133, 11134, 11135 and 11156 were, or caused to be, filed by JPMC in connection with the CZS Financing Transactions (collectively, the “Claims”).
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G. The Debtors have filed an objection to claim numbers 11125, 11129, 11130, 11131, 11132, 11134, 11135 and 11156 (collectively, the “Disputed Claims”) and, absent further order from the Bankruptcy Court, the Disputed Claims are not entitled to vote on the Plan.
H. The Parties and certain beneficial holders of obligations in the CZS Financing Transactions have negotiated a settlement of certain issues related to the CZS Financing Transactions, subject to documentation, which would resolve, inter alia, various voting and solicitation issues associated with the Claims and the CZS Financing Transactions (the “CZS Agreements”).
I. The Parties have agreed to enter into this Stipulation pending submission of the CZS Agreements to the Bankruptcy Court for approval.
J. The Fiduciary warrants and represents that it is authorized to enter into this Stipulation.
K. The Bankruptcy Court entered the Temporary Allowance Stipulation and Order With Respect to Choctaw, Zephyrus and Sequoia on March 1, 2004 (the “Stipulation”, Docket No. 16617).
L. On March 5, 2004, the Fiduciary filed a Memorandum in Support of the Temporary Allowance of Certain Claims for Voting Purposes (Docket No. 16748); thereafter, provisional ballots were sent to the Fiduciary with respect to the Disputed Claims and a hearing to consider the temporary allowance of the Disputed Claims was scheduled for April 7, 2004 at 2:00 p.m. (New York City Time) (the “Temporary Allowance Hearing”).
M. The Parties enter into this Stipulation to address issues related to the submission of ballots related to the Claims.
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NOW, THEREFORE, in consideration of the forgoing the Parties, by their undersigned counsel, stipulate and agree as follows:
AGREEMENT
1. The Recitals are fully incorporated herein by reference.
2. In the event that the CZS Agreements are approved by the Bankruptcy Court on or before April 8, 2004, then the Allowed Claims (as defined in the CZS Agreements) shall be, or caused to be, voted in accordance with the provisions of the CZS Agreements.
3. Except as otherwise ordered by the Bankruptcy Court, in the event that the CZS Agreements are not approved by the Bankruptcy Court on or before April 8, 2004 then (i) the Fiduciary may cast the ballots and provisional ballots with respect to the Claims by 10 a.m. (New York City Time) on April 9, 2004, (ii) the Parties shall proceed with the Temporary Allowance Hearing for the Disputed Claims as currently scheduled and (iii) the provisional ballots for the Disputed Claims shall be tabulated pursuant to an order entered by the Bankruptcy Court on or before April 14, 2004.
4. The Debtors may extend the deadlines set forth in paragraphs 2 and 3 above in their discretion without further order from the Bankruptcy Court.
5. This Stipulation shall be governed by, construed and enforced in accordance with, the laws of the State of New York.
6. This Stipulation sets forth the entire understanding of the Parties hereto and is intended to be the complete and exclusive statement of the terms thereof and may not be modified or amended except by a writing signed by all the Parties hereto, which shall be so-ordered by the Bankruptcy Court.
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7. This Stipulation and Order may be executed in any number of counterparts or with detachable signature pages and shall constitute one agreement, binding upon all parties thereto as if all Parties signed the same document; all facsimile signatures shall be treated as originals for all purposes.