Case No. 01-16034 (AJG), Jointly Administered.United States Bankruptcy Court, S.D. New York.
May 7, 2004
Martin J. Bienenstock (MB 3001), Brian S. Rosen (BR 0571), Melanie Gray (admitted pro hac vice), WEIL, GOTSHAL MANGES LLP, New York, New York, Attorneys for the Debtors and Debtors in Possession.
Hugh McDonald (HM-2667), ALLEN OVERY, New York, NY, Attorneys for Barclays Bank PLC.
TEMPORARY ALLOWANCE STIPULATION AND ORDER REGARDING CLAIMS FILED BY BARCLAYS BANK PLC RECITALS
ARTHUR GONZALEZ, Bankruptcy Judge
WHEREAS, 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;
WHEREAS, the Debtors have filed their Fifth Amended Joint Plan of Affiliated Debtors Pursuant to Chapter 11 of the United States Bankruptcy Code, (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”);
WHEREAS, on January 9, 2004, the 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 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;
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(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”);
WHEREAS, on January 9, 2004, the 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”);
WHEREAS, Barclays Bank PLC, as agent (the “Fiduciary”), filed claim number 10909 as a general unsecured claim against Enron Power Marketing, Inc. and claim number 10910 as a guaranty claim against Enron Corp. (collectively, the “Claims”);
WHEREAS, the Claims were filed in connection with the Cash V Financing Transaction, which is described in section III.F “Cash V” of the Disclosure Statement (the “Cash V Financing Transaction”);
WHEREAS, the Debtors have filed objections to the Claims and, absent further order of the Court, the Claims are not entitled to be voted on the Plan;
WHEREAS, on February 17, 2004, the Fiduciary filed a temporary allowance motion with respect to the Claims (the “Temporary Allowance Motion”, Docket No. 16279);
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WHEREAS, the Fiduciary, Enron Corp. and Enron Power Marketing, Inc. (collectively, the “Parties”) have agreed to temporarily allow the Claims for voting purposes only as set forth in this Stipulation;
WHEREAS, the Parties agree that this Stipulation only affects the temporary allowance of the Claims for voting purposes, and the Parties reserve their rights with respect to the treatment and allowance of the Claims for all other purposes;
WHEREAS, pursuant to the governing documents or otherwise, the Fiduciary represents that it is authorized to enter into this Stipulation as the Fiduciary for the Beneficial Holders;
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. Claim number 10909 is temporarily allowed for voting purposes only as a general unsecured claim against Enron Power Marketing, Inc. in the amount of $25,000,000; provided,however, that such claim will only be voted by the Beneficial Holders, and in the dollar amounts, as set forth on Exhibit A.
3. Claim number 10910 is temporarily allowed for voting purposes only as a class 185 guaranty claim in the amount of $25,000,000; provided, however, that such claim will only be voted by the Beneficial Holders, and in the dollar amounts, as set forth on Exhibit A.
4. Any claims filed by the Fiduciary, as agent or in its individual capacity, in connection with the transactions described in the Temporary Allowance Motion, that are not temporarily allowed as set forth in this Stipulation are not entitled to vote on the Plan, except as may be otherwise provided for in any other stipulations or orders.
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5. The Beneficial Holders of the Claims, as of January 6, 2004, that are entitled to vote on the Plan pursuant to this Stipulation must have submitted their provisional ballots to the Debtors’ solicitation and tabulation agent (“Innisfree”) so as to be received by March 24, 2004 at 5 p.m. (New York City Time) in order for such ballots to be counted for or against the Plan.
6. The Stipulating Debtor and the Creditors’ Committee (as defined in the Disclosure Statement) have reserved all rights to challenge, on or before the Confirmation Hearing Date (as defined in the Disclosure Statement), the tabulation of the votes cast by Beneficial Holders as set forth on Exhibit A as individual votes for or against the Plan; if the Debtors or the Creditors’ Committee challenge the tabulation of such votes then the objecting party shall file and serve a pleading with this Court setting forth the legal bases for its challenge at least seven (7) calendar days prior to the Confirmation Hearing. If it is later determined that such votes shall not be counted as individual votes for or against the Plan then (i) such votes shall be deemed Beneficial Holder votes to instruct the Fiduciary as to how to vote the Fiduciary’s claim and (ii) the manner and method for tabulating these votes for purposes of determining how the Fiduciary will vote on the Plan will be determined at the Confirmation Hearing.
7. The Stipulating Debtor, its estates, the Creditors’ Committee and the foregoing’s respective officers, directors and professionals shall incur no liability as a result of agreeing to or entering into this Stipulation or exercising their right to challenge, on or before the Confirmation Hearing Date (as defined in the Disclosure Statement), the tabulation of such votes as individual votes for or against the Plan.
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8. Under no circumstances shall the terms and provisions of this Stipulation be construed as a modification of the terms, conditions or requirements of the documents associated with the Claims.
9. This Stipulation and Order shall become effective and binding as of entry of this Stipulation and Order on the docket as “so ordered” by the Court. In the event that this Stipulation and Order is not approved by the Court, it shall be null and void and have no force or effect.
10. This Stipulation only affects the temporary allowance of the Claims for voting purposes, and the Parties reserve their rights with respect to the treatment and allowance of the Claims for all other purposes.
11. Upon entry of this Stipulation, the Temporary Allowance Motion shall be deemed withdrawn with prejudice.
12. The Parties agree that this Stipulation and Order shall be of no evidentiary value whatsoever in any other proceedings.
13. This Court shall retain jurisdiction with respect to any and all issues or disputes that may arise in connection with this Stipulation.
14. This Stipulation shall be governed by, construed and enforced in accordance with the laws of the State of New York.
15. 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 Court.
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16. This Stipulation and Order may be executed in any number of counterparts 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.
SO ORDERED.
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EXHIBIT A
VOTING CREDITORS AND VOTING AMOUNTS FOR CLAIM NUMBERS 10909 AND 10910
Beneficial Holder Allowed Pro Rata Claim for Voting Purposes Only[1]
Credit Lyonnais New York Branch US$890,111.38
Bank of Nova Scotia US$827,974.11
Mizuho Global Ltd. US$662,379.29
KBC Bank N.V. US$662,379.29
UFJ Bank Limited US$662,379.29
Metropolitan Life Insurance Company US$10,125,913.92
Texas Life Insurance Company US$1,861,477.43
Principal Life Insurance Company US$3,102,460.53 (PMLIC A/C 032395)
Principal Life Insurance Company US$6,204,924.76 (PMLIC A/C 014752
TOTAL $25,000,000.00