Case No. 01-16034 (AJG), Jointly AdministeredUnited States Bankruptcy Court, S.D. New York.
February 17, 2004
Martin J. Bienenstock, Brian S. Rosen, Sylvia Mayer Baker (admitted pro hac vice), WEIL, GOTSHAL MANGES LLP, New York, NY, for the Debtors and Debtors in Possession
Hugh McDonald, ALLEN OVERY, New York, NY, for Deutsche Trustee Company Limited as Trustee
FIDUCIARY STIPULATION AND ORDER REGARDING CLAIMS FILED BY DEUTSCHE TRUSTEE COMPANY LIMITED 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, Deutsche Trustee Company Limited (“Fiduciary”) filed three proofs of claim asserting unsecured claims against Enron Corp. and designated as Claim Nos. 11306 and 12619 in unliquidated amounts and 11305 in the approximate amount of $11.5 million (collectively, the Claims) and stated that it was filing such Claims in its capacity as security trustee for the holders of certain notes due 2008 and for itself as note trustee for such holders;
WHEREAS, the Fiduciary represents that, as of January 6, 2004, the beneficial holders of the Claim are listed on Exhibits A, B and C,respectively attached hereto (the “Beneficial Holders”);
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;
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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;
WHEREAS, Enron Corp. (the “Stipulating Debtor”) and the Fiduciary (collectively, the “Parties”) enter into this Stipulation regarding the Claims;
WHEREAS, the Parties reserve their rights with respect to the Claims and nothing contained herein shall constitute an admission by any of the Parties;
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. Either the Fiduciary or the appropriate Beneficial Holder with respect to each Claim must file a motion seeking temporary allowance of each of the Claims on or before February 17, 2004, and upon the filing of such motion, Solicitation Packages (as defined in the Solicitation Procedures Order) will be mailed to the Beneficial Holders of each of the Claims on or before February 24, 2004 in accordance with paragraph 25 of the Solicitation Procedures Order.
3. The Debtors 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 such votes authorized to be solicited directly pursuant to this Stipulation 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.
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4. If the Beneficial Holders are solicited directly to vote on the Plan and one or more of the Claims are temporarily allowed for voting purposes but 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(s) 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.
5. The Debtors, their 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.
6. 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 transactions related to the Claims.
7. 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 and the Parties agree that, in such circumstances, this Stipulation and Order shall be of no evidentiary value whatsoever in any proceedings.
8. This Court shall retain jurisdiction with respect to any and all issues or disputes that may arise in connection with the implementation, performance, enforcement or construction of this Stipulation. Should any provision of this Stipulation require interpretation or
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construction, the Court shall not apply any presumption that the provisions hereof shall be construed more strictly against the Party who itself or through an agent prepared same, i being agreed by all Parties that their respective attorneys all fully participated in the preparation of all provisions of this Stipulation.
9. The Parties have reserved their rights with respect to the Claims and nothing contained herein shall constitute an admission by any of the Parties.
10. This Stipulation shall be governed by, construed and enforced in accordance with the laws of the State of New York.
11. 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.
12. 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.
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SO ORDERED.