Opinion
Case No. 01-16034 (AJG), Jointly Administered.
August 10, 2005
WEIL, GOTSHAL MANGES LLP, Andrew M. Troop, Martin J. Bienenstock (MB 3001), Brian S. Rosen (BR 0571), Andrew M. Troop (Pro Hac Vice), New York, ATTORNEYS FOR THE REORGANIZED DEBTORS.
SHEARMAN STERLING LLP, Constance A. Fratianni, (CF-0672), Solomon J. Noh (SN-0992), New York, ATTORNEYS FOR CITIBANK, N.A., AS AGENT.
This Amended and Restated Stipulation and Order Resolving Reorganized Debtors' Objection and Request for Alternate Forms of Relief With Respect to Claims Based Upon the 364-Day Revolving Credit Agreement, Including, Without Limitation, Reclassification of Claims as General Unsecured Claims (this "Stipulation") is entered into by and between Citibank, N.A. ("Citibank"), as Agent (as defined below), and Enron Corp. ("Enron"; each of Agent and Enron may be referred to herein as a "Party" and collectively as the "Parties"), by and through their respective attorneys.
Recitals
WHEREAS, commencing on December 2, 2001 (the "Petition Date"), and periodically thereafter, Enron and certain of its affiliates (collectively, the "Debtors") each filed a voluntary petition for relief pursuant to chapter 11 of title 11 of the United States Code (the "Bankruptcy Code"), Case No. 01-16034 (AJG), In re Enron Corp., et al. (the "Chapter 11 Cases"), with the United States Bankruptcy Court for the Southern District of New York (the "Bankruptcy Court").
WHEREAS, by order, dated August 1, 2002, the Bankruptcy Court established the procedures for the filing of proofs of claim against the Debtors and their chapter 11 estates, including, without limitation, setting the dates by which such proofs of claim were required to be filed.
WHEREAS, by order, dated July 15, 2004, the Bankruptcy Court confirmed that certain Supplemental Modified Fifth Amended Joint Plan of Affiliated Debtors Pursuant to Chapter 11 of the United States Bankruptcy Code, dated July 2, 2004 (the "Plan"). The Plan became effective on November 17, 2004, and the Debtors became the "Reorganized Debtors".
WHEREAS, pursuant to that certain 364-Day Revolving Credit Agreement, dated as of May 14, 2001 (the "364-Day Revolver"), by and among Citibank, as paying agent (the "Agent"), Citibank and JPMorgan Chase Bank N.A., f/k/a JPMorgan Chase Bank and, prior to that, The Chase Manhattan Bank, N.A. ("JPMorgan"), as co-administrative agents, the banks party thereto (such banks, together with any and all successors in interest thereto, and any and all transferees of claims held thereby, the "Lenders"), and Enron, and subject to the satisfaction of certain conditions set forth therein, the Lenders agreed to lend Enron up to a principal amount of $1,750,000,000.
WHEREAS, on or about October 25, 2001, Enron drew down the entire amount of the 364-Day Revolver.
WHEREAS, on or about October 15, 2002, Agent filed proof of claim number 14196 (the "364-Day Revolver Claim") on behalf of the Lenders pursuant to the terms of the 364-Day Revolver and that certain Stipulation and Order Regarding Filing of Single Consolidated Proof of Claims by Citibank as Agent Under Certain Prepetition Financing Transactions entered by the Bankruptcy Court on October 10, 2002.
WHEREAS, in the 364-Day Revolver Claim, Agent asserts, on behalf of Lenders, claims under the 364-Day Revolver in both liquidated and unliquidated amounts. The liquidated portion of the claim consists of $1,750,000,000 in principal drawn under the 364-Day Revolver and outstanding as of the Petition Date (the "Principal") and $4,024,000 in accrued and unpaid interest due under the 364-Day Revolver as of the Petition Date (the "Prepetition Interest"). The unliquidated portion of the 364-Day Revolver Claim asserts claims for amounts that are alleged to have been incapable of final determination as of the filing of the 364-Day Revolver Claim, including but not limited to (a) costs and expenses (including attorneys' fees and expenses) for collecting amounts due or enforcing or protecting rights and remedies under the 364-Day Revolver, (b) contract damages for unspecified breaches of representations, warranties and covenants under the 364-Day Revolver, and (c) "the continuing accrual of interest after the Petition Date in respect of the amounts borrowed under the" 364-Day Revolver. Agent further asserts, on behalf of Lenders, that the 364-Day Revolver Claim may be secured with respect to specific Lenders to the extent that a particular Lender has set off rights against Enron's funds on deposit with the Lender or other amounts owed to Enron as of the Petition Date.
WHEREAS, after the filing of the 364-Day Revolver Claim, Enron entered into, and the Bankruptcy Court approved, the following three (3) stipulations that resolved the claims of certain Lenders that were included in the 364-Day Revolver Claim:
(i) On April 25, 2003, the Bankruptcy Court approved that certain Stipulation and Order Between Enron Corp. and Standard Chartered Bank Providing for Settlement of Claims and Limited Releases (the "SCB Stipulation") (Docket No. 10437). The SCB Stipulation granted Standard Chartered Bank ("SCB"), among other things, an allowed general unsecured claim against Enron in the amount of $11,666,666.67 for the principal amount SCB loaned Enron under the 364-Day Revolver (the "SCB Allowed Claim"). The SCB Stipulation further provided that any portion of the 364-Day Revolver Claim that is duplicative of the SCB Allowed Claim would be disallowed.
(ii) On December 16, 2004, the Bankruptcy Court approved that certain Amended Stipulation and Order Resolving "Motion of Certain Non-Defendant Holders of Claims Under Enron Credit Agreements for Partial Summary Judgment on Debtors' Objections to Credit Agreement Claims Filed by Citibank, Expressly as Agent" (the "Moving Creditor Stipulation") (Docket No. 22551). The motion which forms the predicate for the Moving Creditor Stipulation had been filed by, among others, DK Acquisition Partners, LP, Kensington International Ltd., Rushmore Capital I, L.L.C., Springfield Associates, LLC, and Calyon New York Branch (collectively, the "Moving Creditors"). The Moving Creditors are Lenders, and certain of the Moving Creditors hold claims arising under the 364-Day Revolver that were held by Mega-Defendants (as defined below) as of the Petition Date. Pursuant to the Moving Creditor Stipulation, the Moving Creditors were deemed to have filed separate proofs of claim asserting secured claims in the amount of each Moving Creditor's interest in the 364-Day Revolver (the "Moving Creditor Claims"). The 364-Day Revolver Claim was ordered reduced by the amount of the Moving Creditor Claims.
Rushmore Capital II, L.L.C., which had also been a "Moving Creditor" in connection with the Moving Creditor Stipulation, is not included in the list of Moving Creditors in this Stipulation because Rushmore Capital II, L.L.C. is not one of the Lenders under the 364-Day Revolver.
Pursuant to Section 11(b) of the Moving Creditor Stipulation, the reclassification of the 364-Day Revolver Claim to a general unsecured claim automatically results in the Moving Creditor Claims being reclassified as general unsecured claims.
(iii) On March 9, 2005, the Bankruptcy Court approved that certain Stipulation and Order Partially Resolving Debtors' Omnibus Objection to Proofs of Claim Nos. 14179 and 14196 by Citibank, N.A., as Paying Agent (Docket No. 24189) (the "Strategic-Man Mac Stipulation," and together with the SCB Stipulation and the Moving Creditor Stipulation, the "Prior Stipulations"). The Strategic-Man Mac Stipulation, among other things, granted each of Strategic Value Master Fund, Ltd. ("Strategic") and Man Mac 3 Limited ("Man Mac") allowed unsecured claims under Class 4 of the Plan in the amount of each creditor's interest in the 364-Day Revolver relating to claims under the 364-Day Revolver that were not held by any of the Mega-Defendants as of the Petition Date (respectively, the "Strategic Allowed Claims" and the "Man Mac Allowed Claims"). In addition, Strategic and Man Mac were each deemed to have filed separate proofs of claim asserting unsecured claims in the amount of each such creditor's interest in the 364-Day Revolver relating to claims under the 364-Day Revolver that were held by Mega-Defendants as of the Petition Date (respectively, the "Strategic Challenged Claims" and the "Man Mac Challenged Claims"). The Strategic-Man Mac Stipulation further provided that the portion of the 364-Day Revolver Claim that is duplicative of the Strategic Allowed Claims and the Man Mac Allowed Claims would be disallowed.
WHEREAS, on January 10, 2005, the Reorganized Debtors filed their Fourth Amended Complaint for the Avoidance and Return of Preferential Payments and Fraudulent Transfers, Equitable Subordination, and Damages, Together With Objections and Counterclaims to Creditor Defendants' Claims against various defendants (collectively, the "Mega-Defendants") in Adversary Proceeding No. 03-09266 (AJG) (as amended, the "Mega-Complaint"). Certain of the Mega-Defendants are or were Lenders under the 364-Day Revolver (the "Mega-Lenders").
The term "Mega-Lenders" also includes successors in interest or transferees of the claims previously held by Mega-Defendants.
WHEREAS, in connection with the Mega-Complaint, on January 9, 2004, the Debtors filed an objection to the proofs of claim filed by various Mega-Defendants in the Chapter 11 Cases (the "Original Claims Objection") (Docket No. 15341). The Original Claims Objection objected to, among other claims, the 364-Day Revolver Claim.
WHEREAS, on October 16, 2004, the Debtors filed a notice (the "Partial Withdrawal") (Docket No. 21282), partially withdrawing their objection to that portion of the 364-Day Revolver Claim that consists of claims that were not held by any Mega-Defendant as of the Petition Date (i.e., were held by one of the Lenders not included in the Mega-Complaint) (the "Non-Challenged Revolver Debt Claims"). The Partial Withdrawal did not withdraw the Debtors' objection to that portion of the 364-Day Revolver Claim that consists of claims that were held by Mega-Defendants as of the Petition Date (the "Challenged Revolver Debt Claims"; together with the Non-Challenged Revolver Debt Claims, the "Debt Claims").
A schedule of the Challenged Revolver Debt Claims was attached to the Debtors' notice of partial withdrawal. The Challenged Revolver Debt Claims include any accrued and unpaid interest and/or unliquidated amounts asserted with respect thereto.
WHEREAS, on March 10, 2005, the Reorganized Debtors filed the Reorganized Debtors' Objection and Request for Alternate Forms of Relief with Respect to Claims Based Upon the 364-Day Revolving Credit Agreement, Including, Without Limitation, Reclassification of Claims as General Unsecured Claims (the "364-Day Revolver Claims Objection"), pursuant to which the Reorganized Debtors, among other things, objected to the allowance of the 364-Day Revolver Claim beyond that portion of the 364-Day Revolver Claim that represents principal and interest outstanding and unpaid as of the Petition Date related to Non-Challenged Revolver Debt Claims.
WHEREAS, Agent (on behalf of itself and the Lenders) and Enron wish to resolve and settle certain matters of controversy related to the 364-Day Revolver Claim.
Agreement
NOW THEREFORE, in consideration of the mutual covenants set forth herein, receipt and sufficiency of which are hereby acknowledged, Agent (on behalf of itself and the Lenders) and Enron hereby stipulate and agree as follows:
1. The foregoing recitals are fully incorporated herein by reference.
2. Reclassification and Partial Disallowance. Immediately upon the earlier to occur of (i) the eleventh (11th) day following the entry of the Bankruptcy Court's order approving this Stipulation (the "Bankruptcy Court Approval") and (ii) such other date as the Parties, in their joint and absolute discretion, agree (provided that such date occurs after the entry of the Bankruptcy Court Approval) (such earlier date, the "Effective Date"), and without any further action by the Bankruptcy Court or any of the Parties, and subject to the preservation of certain rights contained in this Stipulation, including without limitation in Paragraph 5 hereof, and subject to the terms hereof:
(a) the 364-Day Revolver Claim shall be reclassified as a general unsecured claim in Class 4 for all purposes under the Plan;
(b) the 364-Day Revolver Claim shall be disallowed to the extent it asserts claims other than for Principal and Prepetition Interest; without limiting the foregoing, the 364-Day Revolver Claim shall be disallowed to the extent it asserts claims (whether or not liquidated) for (i) costs and expenses (including attorneys' fees and expenses) for collecting amounts due or enforcing or protecting rights and remedies under the 364-Day Revolver, (ii) contract damages for unspecified breaches of representations, warranties and covenants under the 364-Day Revolver, and (iii) "the continuing accrual of interest after the Petition Date in respect of the amounts borrowed under the" 364-Day Revolver; and
(c) In accordance with the immediately preceding sub-paragraphs (a) and (b), all Debt Claims are classified as general unsecured claims in Class 4 for purposes of the Plan, and such claims are disallowed to the extent they assert claims (i) other than for Principal and Prepetition Interest or (ii) in excess of the aggregate amount of $1,754,024,000.00. In addition, (A) the 364-Day Revolver Claim shall be deemed to supercede any claim filed by any Lender in any of these cases with respect to the 364-Day Revolver other than (I) the claims identified in Paragraph 3(a) hereof in the chart entitled "Non-Challenged Revolver Debt Claims;" (II) the claims identified in Paragraph 3(b) hereof in the chart entitled "Challenged Revolver Debt Claims;" (III) any Lender Claim to which a new claim number is assigned pursuant to Paragraph 4(b) hereof; and (IV) any claims that have been, are or become deemed filed pursuant to Paragraph 13 of the Moving Creditor Stipulation (any claims filed by any Lender in any of these cases with respect to the Long-Term Revolver which are deemed superceded by this clause (A) are hereinafter collectively referred to as the "Individual Lender Claims"); and (B) to the extent not already disallowed, the Individual Lender Claims shall be disallowed as duplicative of the Debt Claims.
3. Fixing and Re-Docketing of Claims.
(a) On the Effective Date, to the extent not already allowed by previously entered stipulations and/or orders of the Bankruptcy Court, the Non-Challenged Revolver Debt Claims shall be fixed and allowed as general unsecured claims in Class 4 of the Plan in the amounts, and with the assigned claim numbers, as set forth immediately below: Non-Challenged Revolver Debt Claims Claim # Name Amount
99059 Calyon New York Branch $73,279,513.77 99051 DK Acquisition Partners, LP $174,659,956.32 99054 Kensington International Ltd. $239,609,701.35 99067 Man Mac 3 Limited $5,863,451.67 99048 Rushmore Capital I, L.L.C. $147,894,849.03 99056 Springfield Associates, LLC $120,842,231.93 99065 Strategic Value Master Fund, Ltd. $29,102,877.03 20065 Standard Chartered Bank $11,666,666.67 99070 Morgan Stanley Emerging Markets Inc. $10,022,994.00 99077 BNP Paribas $15,034,491.43 99078 Quantum Partners LDC $2,338,698.67 99079 RCG Carpathia Master Fund, Ltd. $668,199.62 99080 Quantum Partners LDC $2,338,698.67 99081 RCG Carpathia Master Fund, Ltd. $668,199.62 99082 Lehman Commercial Paper, Inc. $5,011,497.15 _______________ TBD Remaining Non-Challenged Revolver Debt Claim (as defined below) $360,284,937.07 _______________ $1,199,286,964.00 ; provided, however, that, (i) as soon as practicable following the Effective Date, Enron shall cause the docketing agent to assign a new claim number to the Non-Challenged Revolver Debt Claim in the amount of $360,284,937.07 that represents the portion of the 364-Day Revolver Claim that consists of claims that were not held by any of the Mega-Defendants as of the Petition Date and that have not been assigned separate claim numbers under any of the Prior Stipulations (such claim, the "Remaining Non-Challenged Revolver Debt Claim"); and (ii) all distributions under the Plan on account of the Remaining Non-Challenged Revolver Debt Claim shall be subject to the satisfaction of the conditions set forth in Paragraph 4(b) hereof, to the extent, if any, applicable.(b) Upon the fixing of the Non-Challenged Revolver Debt Claims and the re-docketing and re-numbering thereof in accordance with the provisions of Paragraph 3(a), and as a result of the Prior Stipulations, (i) the 364-Day Revolver Claim (i.e., claim number 14196) shall consist solely of Challenged Revolver Debt Claims that are not subject to any of the Prior Stipulations (the "Remaining Challenged Revolver Debt Claim"; together with the Remaining Non-Challenged Revolver Debt Claim, the "Remaining Debt Claims"), and (ii) all Challenged Revolver Debt Claims (including the Remaining Challenged Revolver Debt Claim) shall be reflected by the docketing agent in the claims registry as "disputed" general unsecured claims, in the following asserted amounts, and with the assigned claim numbers, as set forth immediately below: Challenged Revolver Debt Claims Claim # Name Amount
99052 DK Acquisition Partners, LP $14,295,758.59 99053 DK Acquisition Partners, LP $14,533,341.52 99055 Kensington International Ltd. $28,064,384.00 99068 Man Mac 3 Limited $10,022,994.30 99047 Rushmore Capital I, L.L.C. $38,755,577.96 99049 Rushmore Capital I, L.L.C. $10,022,994.30 99050 Rushmore Capital I, L.L.C. $10,022,994.30 99057 Springfield Associates, LLC $5,011,497.14 99058 Springfield Associates, LLC $22,050,587.43 99066 Strategic Value Master Fund, Ltd. $8,285,675.28 14196 Remaining Challenged Revolver Debt Claim $393,671,231.18 _______________ $554,737,036.00 All Challenged Revolver Debt Claims shall remain subject to the Original Claims Objection, the Mega-Complaint and any other adversary proceeding related thereto, and all Parties (and the Lenders) reserve their rights with respect thereto except as otherwise set forth in this Stipulation; provided, however, that Enron agrees that it shall not object to any portion of the Remaining Non-Challenged Revolver Debt Claim on any grounds, including, without limitation, those stated in the Mega-Complaint, or seek or attempt to subordinate the 364-Day Revolver Claim (or any portion thereof) any claim asserted under the 364-Day Revolver Claim, or any claim identified in Paragraph 3(a) or 3(b) hereof, on the basis that Citibank and JPMorgan served as co-administrative agents, and/or on the basis that Citibank served as Agent, in connection with the 364-Day Revolver.4. Payments to Holders of Claims.
(a) Payments pursuant to the Plan on account of (i) claims numbered 99059, 99051, 99054, 99067, 99048, 99056, 99065, 20065, 99070, 99077, 99078, 99079, 99080, 99081 and 99082, and (ii) to the extent allowed after the date hereof, claims numbered 99052, 99053, 99055, 99068, 99047, 99049, 99050, 99057, 99058 and 99066 (together with claims identified in (i) hereof, the "Direct Distribution Claims") shall be made directly to the holders of the Direct Distribution Claims pursuant to, and in accordance with, the Prior Stipulations; provided, however, that nothing contained in this Stipulation shall alter, amend, extinguish or otherwise modify (A) any claims, rights or causes of action any of (1) Citibank, both in its individual capacity and as Agent, (2) JPMorgan, or (3) any holder of a Debt Claim, may have against any other holder of a Debt Claim following the making of distributions to the holders of the Direct Distribution Claims; or (B) any claims, rights or causes of action which any party who holds or acquires a Debt Claim may have against any prior holder of all or any portion of such Debt Claim.
(b) Subject to, and except as provided in, Paragraph 4(c) hereof and Paragraph 13 of the Moving Creditor Stipulation to the extent applicable, all distributions under the Plan on account of the Remaining Debt Claims shall be made as if such claims are disputed, and not allowed. Any Lender who holds or acquires a claim that comprises part of the Remaining Debt Claims (such claim, a "Lender Claim") shall be permitted, notwithstanding anything contained in the Plan, the Confirmation Order (as defined in the Plan) or any prior order of the Bankruptcy Court, to provide a certificate to the Reorganized Debtors substantially in the form attached hereto as Exhibit A-1 or Exhibit A-2, as appropriate (each, a "Lender Certificate") which, among other things, (i) sets forth the amount of the Lender Claim held by such Lender, (ii) provides certain waivers and indemnities in favor of the Debtors, the Reorganized Debtors and the Agent, and (iii) certifies, represents and warrants as to the identity of the holder of such claim as of the Petition Date, in which case, as soon as practicable thereafter, Enron shall cause the docketing agent to assign a new claim number to such Lender Claim and the Remaining Non-Challenged Revolver Debt Claim or the Remaining Challenged Revolver Debt Claim, as applicable, notwithstanding anything contained in the Plan, the Confirmation Order, or any prior order of the Bankruptcy Court, shall be reduced by the amount of such Lender Claim. The holder of a Lender Claim may, to the extent applicable to it, comply with the provisions of this Paragraph 4(b), Paragraph 13 of the Moving Creditor Stipulation, or any applicable Order of the Bankruptcy Court regarding the assignment of a new claim number to such Lender Claim and the resulting reduction of the Remaining Non-Challenged Revolver Debt Claim or the Remaining Challenged Revolver Debt Claim.
(c) Distributions on account of any Lender Claim shall be made directly to the holder thereof as of the Record Date, in accordance with the terms of the Plan, as soon as practicable after the earlier of the following dates: (I) the execution and delivery of a Lender Certificate on account of such claim in accordance with Paragraph 4(b) hereof; (II) in the case of a Lender Claim which is the subject of an "Acquisition Notice" under Paragraph 13 of the Moving Creditor Stipulation, the date upon which such Lender Claim is deemed to be an "Allowed Acquired Debt Claim" within the meaning of Paragraph 13 of the Moving Creditor Stipulation; provided, however, that no distributions shall be made on account of any Lender Claim that does not fall within the scope of the immediately preceding clause (II) and is determined by Enron, in its sole and reasonable judgment, and upon reasonably prompt written notice to the holder of such Lender Claim, to be a Challenged Revolver Debt Claim until the Bankruptcy Court (or any other court of competent jurisdiction) issues an order which, in form and substance, has the effect of authorizing the distributions on account thereof (the "Authorization Order"); provided further, however, that any dispute regarding Enron's exercise of judgment hereunder shall be adjudicated by the Bankruptcy Court upon a properly filed motion and notice, for the sole purpose of determining whether a distribution must be made hereunder, and Enron shall not be liable for any damages pertaining to or arising out of its exercise of judgment hereunder; provided further, however, that nothing contained in this Stipulation shall alter, amend, extinguish or otherwise modify (i) any claims, rights or causes of action any of (A) Citibank, both in its individual capacity and as Agent, (B) JPMorgan, or (C) any holder of a Debt Claim, may have against any other holder of a Debt Claim following the making of distributions to the holders of the Lender Claims; or (ii) any claims, rights or causes of action which any party who holds or acquires a Debt Claim may have against any prior holder of all or any portion of such Debt Claim.
(d) Notwithstanding anything herein to the contrary, nothing contained herein is intended, nor shall it be construed, to (i) alter, amend, modify or extinguish the terms of the Plan; (ii) alter the fact that, (A) the Challenged Revolver Debt Claims (including the Remaining Challenged Revolver Debt Claim) shall constitute "Disputed Claims" pursuant to the Plan and (B) no distributions to any holder of a portion of the Challenged Revolver Debt Claims (including the Remaining Challenged Revolver Debt Claim) shall be made pursuant to the Plan with respect thereto until entry of the Authorization Order; (iii), subject to the "Initial Moving Creditors" (as defined in the Moving Creditor Stipulation) providing written notice to the Debtors' counsel of the Initial Moving Creditors' election to delete Paragraph 11(b) from the Moving Creditor Stipulation, alter, amend, modify or extinguish the terms of the Moving Creditor Stipulation; or (iv) without in any manner limiting clause (iii), require any Moving Creditor to provide any Lender Certificate, release or indemnity of any kind, or to release any claim of any Moving Creditor against any person or entity, or to provide any indemnity by any Moving Creditor to any person or entity.
5. Preservation of Certain Additional Rights.
(a) Except as specifically set forth in this Stipulation, any decision with respect to the validity and amount of the Challenged Revolver Debt Claims (including the Remaining Challenged Revolver Debt Claim) is deferred pending a further ruling of the Bankruptcy Court (or any other court of competent jurisdiction), and the rights of the Reorganized Debtors or any other party in interest to assert and prove up any and all objections with respect to such claims are preserved, and the rights of any holder of a Challenged Revolver Debt Claim (including the Remaining Challenged Revolver Debt Claim) to assert and prove up any and all responses, rights and defenses to any objections raised by the Reorganized Debtors (or any party in interest) are similarly preserved.
(b) Notwithstanding anything contained herein, the Agent, on behalf of the Lenders, hereby preserves any and all rights any Mega-Lender may have to set-off or recoup any amounts such Mega-Lender may owe to the Debtors, the Reorganized Debtors or any trust that may have been established by, or on behalf of, the Debtors or the Reorganized Debtors under the terms of the Plan (a "Trust"), as the case may be, as a result of the resolution of the Mega-Complaint against the amounts owed by Enron to such Mega-Lender under the 364-Day Revolver, subject to any defenses or objections to such set-off or recoupment that the Debtors, the Reorganized Debtors or any Trust may have.
(c) Nothing contained herein shall prejudice any claim, counter-claim, defense or right of setoff or recoupment any Mega-Lender may have in connection with the Mega-Complaint or any other adversary proceeding.
6. On or before the Effective Date, Citibank, as Agent, shall provide to Enron a list, certified by an officer of Citibank to be accurate according to Citibank's records, identifying the Lenders and the percentage interest of each Lender in the loans made under the 364-Day Revolver as of each of (a) May 14, 2001, (b) October 25, 2001, (c) the Petition Date, and (d) the Record Date (as defined in the Plan) (the "Lender List"). The Agent shall cause the Lender List to be posted on Intralinks as soon as reasonably practicable after such list is provided to Enron in accordance with the terms hereof.
7. This Stipulation entirely resolves the 364-Day Revolver Claims Objection, subject only to the terms of this Stipulation and, to the extent applicable, the Prior Stipulations. This Stipulation shall become effective and binding as of the Effective Date. In the event that this Stipulation is not approved by the Bankruptcy Court, it shall be null and void and have no force and effect.
8. The Bankruptcy Court shall retain jurisdiction with respect to any and all issues or disputes that may arise in connection with this Stipulation.
9. This Stipulation shall be binding on the Parties hereto, the Lenders and their respective successors and assigns.
10. Each person who executes this Stipulation represents that he or she is duly authorized to execute this Stipulation on behalf of the respective parties thereto.
11. This Stipulation 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.
EXHIBIT A-1 FORM OF LENDER CERTIFICATE FOR REMAINING CLAIMS OF RECORD DATE HOLDERS
--------------------------------------------------x In re : Chapter 11 : ENRON CORP., et al. : Case No. 01-16034 (AJG) : Reorganized Debtors. : Jointly Administered --------------------------------------------------x
LENDER CERTIFICATE REGARDING 364-DAY REVOLVING CREDIT AGREEMENT (APPLICABLE ONLY TO CLAIMS STILL HELD BY RECORD DATE HOLDER)
This is a "Lender Certificate" as defined in Paragraph 4(b) of the Amended and Restated Stipulation and Order Resolving Reorganized Debtors' Objection and Request for Alternate Forms of Relief with Respect to Claims Based Upon the 364-Day Revolving Credit Agreement, Including, without Limitation, Reclassification of Claims as General Unsecured Claims (the "364-Day Revolver Stipulation") (Docket No. ______) which was approved by the Bankruptcy Court on ___________, 2005. A copy of the 364-Day Revolver Stipulation is attached hereto. Capitalized terms used but not defined in this Lender Certificate are used with the meaning ascribed to such terms in the 364-Day Revolver Stipulation or, if not defined therein, in the Plan.
Lender: ____________________ (the "Undersigned Lender")
Lender Claim (as defined in the 364-Day Revolver Stipulation) held by the Undersigned Lender as of the Record Date (comprised of principal of $____________ and interest of $______________): $ _____________ (the "Original Claim")
In no event shall the interest attributable to the Original Claim exceed the pro rata portion of the Prepetition Interest under the 364-Day Revolver Stipulation.
A. The Undersigned Lender represents and warrants as follows:
1. The Undersigned Lender is the holder of the Original Claim as of the Record Date (i.e., November 29, 2004);
2. As of the Petition Date, the Original Claim was held by _________; and
If the Original Claim was held by more than one Lender as of the Petition Date, please identify each such Lender and the amount held thereby.
3. As of the date hereof, the Original Claim has, to the extent applicable, been reduced by transfers or sales to (i) one or more Moving Creditors in the aggregate amount of $_____________ in principal and $___________ in interest and/or (ii) the party(ies) listed on Exhibit 1 attached hereto in the aggregate amount of $_____________ in principal and $___________ in interest (collectively, the "Transferred Claims"). The Original Claim as and to the extent it has been reduced as of the date hereof is hereinafter referred to as the "Net Lender Claim."
The Moving Creditors are DK Acquisition Partners, LP, Kensington International Ltd., Rushmore Capital I, L.L.C., Rushmore Capital II, L.L.C., Springfield Associates, LLC, and Calyon New York Branch.
If you (a) currently hold all or a portion of a Lender Claim, (b) were not the holder of that claim as of the Record Date and (c) are not a Moving Creditor, please contact Enron Corp. or Weil, Gotshal Manges LLP at the addresses noted at the end of this Lender Certificate to discuss the mechanics for the creation of a Stipulation Claim in accordance with the 364-Day Revolver Stipulation. Pursuant to the Plan, only holders of claims as of the Record Date are entitled to distributions under the Plan, and accordingly, Enron Corp., its affiliated debtors and their claims agent do not recognize as holders of claims entitled to distributions parties who acquire an interest in a claim after the Record Date.
B. The Undersigned Lender acknowledges that:
1. The Reorganized Debtors are relying on the representations and warranties made herein to provide to the Undersigned Lender a separate claim against Enron as contemplated in Paragraph 4(b) of the 364-Day Revolver Stipulation (the "Stipulation Claim") in the amount of the Net Lender Claim;
2. Subject to Paragraph 4(c) of the 364-Day Revolver Stipulation, after the Stipulation Claim is created, the Undersigned Lender will receive distributions relating to the Stipulation Claim directly under the Plan and, to the extent of the Stipulation Claim, all of the Undersigned Lender's proportional interest in, and as reflected by, the 364-Day Revolver Claim and/or the Remaining Debt Claims, as applicable, shall be deemed transferred to such Stipulation Claim; and
3. Nothing contained in the 364-Day Revolver Stipulation (nor in this Lender Certificate) alters, amends, extinguishes or otherwise modifies (i) any claims, rights or causes of action any of (A) Citibank, both in its individual capacity and as Agent, (B) JPMorgan, or (C) any holder of a Debt Claim, may have against any other holder of a Debt Claim following the making of distributions to the holders of the Lender Claims; or (ii) any claims, rights or causes of action which any party who holds or acquires a Debt Claim may have against any prior holder of all or any portion of such Debt Claim.
C. Except for the Stipulation Claim, the Undersigned Lender hereby releases Enron, the Debtors, the Reorganized Debtors, the Reorganized Debtor Plan Administrator and the Disbursing Agent, and any current or former officer, director, employee, agent, representative, partner, limited partner, member, trustee, manager, affiliate, attorney, accountant, financial advisor or other professional of any of the foregoing (collectively, the "Enron Released Parties"), of any and all claims (as defined in the Bankruptcy Code) and causes of action related to, or arising out of, the 364-Day Revolver which derive from or relate to the Net Lender Claim (but only insofar as such claims or causes of action derive from or relate to the Net Lender Claim, as distinguished from any Transferred Claims, and not insofar as any claims or causes of action may derive from or relate to the Transferred Claims, or any other claims), and the Undersigned Lender hereby releases Citibank, as Agent, and any of Citibank's current or former officer, director, employee, agent, representative, partner, limited partner, member, trustee, manager, affiliate, attorney, accountant, financial advisor or other professional, of and from any and all claims and causes of action related to, or arising out of, (i) any and all work performed directly in connection with the 364-Day Revolver Stipulation, including, but not limited to, any and all negotiations conducted in connection with the 364-Day Revolver Stipulation, (ii) the agreement to enter into the 364-Day Revolver Stipulation, (iii) the assignment of a new claim number with respect to any Lender Claim (as defined in the 364-Day Revolver Stipulation) under Paragraph 4(b) of the 364-Day Revolver Stipulation, and (iv) any and all distributions made under Paragraph 4(c) of the 364-Day Revolver Stipulation (together with (i), (ii) and (iii), the "364-Day Revolver Stipulation Matters"), which derive from or relate to the Net Lender Claim (but only insofar as such claims or causes of action derive from or relate to the Net Lender Claim, as distinguished from any Transferred Claims, and not insofar as any claims or causes of action may derive from or relate to the Transferred Claims, or any other claims); provided, however, that nothing contained in the 364-Day Revolver Stipulation (nor in this Lender Certificate) shall alter, amend, extinguish or otherwise modify any claims, rights or causes of action of the Undersigned Lender against Citibank, as Agent (other than such claims and causes of action related to, or arising out of, any and all 364-Day Revolver Stipulation Matters, all of which expressly are released as set forth herein), including, without limitation, any claims asserted in currently pending litigation against Citibank, JPMorgan, or any of their respective affiliates.
D. The Undersigned Lender agrees to indemnify and hold the Enron Released Parties harmless from and against any and all losses, liabilities, obligations, damages, deficiencies and expenses of any kind or nature, including, without limitation, reasonable attorneys' fees and expenses, suffered or incurred by any Enron Released Party as a result of any claim arising from or relating to the (i) creation and allowance of the Stipulation Claim and (ii) payments or distributions being made on account of the Stipulation Claim to the Undersigned Lender.
E. The Undersigned Lender acknowledges that neither the 364-Day Revolver Stipulation nor this Lender Certificate alters, amends, extinguishes or otherwise modifies such Undersigned Lender's obligations, if any, under Section 7.07 of the 364-Day Revolver.
F. If any of the representations or warranties contained herein prove to be materially false, the Undersigned Lender agrees (i) to pay back any and all amounts, if any, distributed under the Plan to the Undersigned Lender in respect of the Stipulation Claim, plus interest at the federal judgment rate, (ii) that the Stipulation Claim will be disallowed and expunged, without prejudice to the Undersigned Lender submitting a further Lender Certificate in accordance with the 364-Day Revolver Stipulation, without any further action by the Court or by any other party and (iii) that the amount pertaining to the Stipulation Claim will be added back to the appropriate Remaining Debt Claim and all distributions on account of such amount will be withheld pursuant to the 364-Day Revolver Stipulation until such time as the conditions of the 364-Day Revolver Stipulation regarding distributions on account of such amount are satisfied;provided, however, that the Stipulation Claim relating to the Undersigned Lender shall be reinstated upon the execution and delivery in accordance with the terms of the 364-Day Revolver Stipulation, by the Undersigned Lender, of a Lender Certificate that contains true and accurate representations and warranties, subject to all the terms and conditions of the 364-Day Revolver Stipulation.
G. Communications with the Undersigned Lender shall be with and distributions shall be forwarded to:
Name: __________________________ Title: __________________________ Address: __________________________ __________________________ __________________________ Phone: __________________________
AGREED AND ACCEPTED:
[UNDERSIGNED LENDER NAME]
By: ___________________________ Date: ___________________________ [insert signatory name] Title: ___________________________
Duly Authorized
Deliver this Lender Certificate to: With a copy to:
Enron Corp. Estate Weil, Gotshal Manges LLP 1221 Lamar, Suite 1600 100 Federal Street, 34th Floor Houston, TX 77010-1221 Boston, MA 02110 Attn: Alan Quaintance, Jr. Attn: Andrew M. Troop, EsquireExhibit 1 TRANSFERS BY UNDERSIGNED LENDER SINCE RECORD DATE TO OBTAIN NET LENDER CLAIM EXHIBIT A-2 FORM OF LENDER CERTIFICATE FOR POST-RECORD DATE ACQUIRORS (OTHER THAN MOVING CREDITORS) OF LENDER CLAIMS
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------x In re : Chapter 11 : ENRON CORP., et al. : Case No. 01-16034 (AJG) : Reorganized Debtors. : Jointly Administered ------------------------------------------------x
LENDER CERTIFICATE REGARDING 364-DAY REVOLVING CREDIT AGREEMENT (APPLICABLE ONLY TO CLAIMS TRANSFERRED AFTER THE RECORD DATE)
This is a "Lender Certificate" as defined in Paragraph 4(b) of the Amended and Restated Stipulation and Order Resolving Reorganized Debtors' Objection and Request for Alternate Forms of Relief with Respect to Claims Based Upon the 364-Day Revolving Credit Agreement, Including, without Limitation, Reclassification of Claims as General Unsecured Claims (the "364-Day Revolver Stipulation") (Docket No. ______) which was approved by the Bankruptcy Court on ___________, 2005. A copy of the 364-Day Revolver Stipulation is attached hereto. Capitalized terms used but not defined in this Lender Certificate are used with the meaning ascribed to such terms in the 364-Day Revolver Stipulation or, if not defined therein, in the Plan.
Lender: ____________________ (the "Undersigned Lender")
Lender Claim (as defined in the 364-Day Revolver Stipulation) held by the Undersigned Lender as of the date hereof (comprised of principal of $____________ and interest of $______________): $ _____________ (the "Undersigned Lender's Claim")
In no event shall the interest attributable to the Undersigned Lender's Claim exceed the pro rata portion of the Prepetition Interest under the 364-Day Revolver Stipulation.
Holder of the Undersigned Lender's Claim as of November 29, 2004 (the "Record Date"): _____________________ (the "Record Date Holder")
A. The Record Date Holder represents and warrants as follows:
4. The Record Date Holder was the holder of the Undersigned Lender's Claim as of the Record Date.
5. The Record Date Holder has transferred its interest in the Undersigned Lender's Claim to the Undersigned Lender either directly, or if indirectly, according to the chain of title attached Exhibit 1 to this Lender Certificate and certified either by the Record Date Holder or the Undersigned Lender as true and accurate.
B. The Undersigned Lender represents and warrants as follows:
1. The Undersigned Lender has acquired the Undersigned Lender's Claim; and
2. As of the Petition Date, the Undersigned Lender's Claim was held by _______ ______.
If the Undersigned Lender's Claim was held by more than one Lender as of the Petition Date, please identify each such Lender and the amount held thereby.
C. The Undersigned Lender and/or the Record Date Holder each acknowledge that:
4. The Reorganized Debtors are relying on the representations and warranties made herein to provide to the Record Date Holder a separate claim against Enron as contemplated in Paragraph 4(b) of the 364-Day Revolver Stipulation (the "Stipulation Claim") in the amount of the Undersigned Lender's Claim;
5. Subject to Paragraph 4(c) of the 364-Day Revolver Stipulation, after the Stipulation Claim is created, the Record Date Holder will receive distributions relating to the Stipulation Claim directly under the Plan and, to the extent of the Stipulation Claim, all of the Undersigned Lender's proportional interest in, and as reflected by, the 364-Day Revolver Claim and/or the Remaining Debt Claims, as applicable, shall be deemed transferred to such Stipulation Claim;
6. Pursuant to the terms of the Plan, the Stipulation Claim can only be held in the name of the Record Date Holder. The Undersigned Lender and the Record Date Holder have agreed between themselves as to how distributions on the Stipulation Claim shall be transferred by the Record Date Holder to the Undersigned Lender. No Enron Released Party (as herein defined) has or shall have any obligation or duty to (a) make any distribution directly to the Undersigned Lender or (b) ensure that any distribution made to the Record Date Holder is transferred to the Undersigned Lender; and
7. Nothing contained in the 364-Day Revolver Stipulation (nor in this Lender Certificate) alters, amends, extinguishes or otherwise modifies (i) any claims, rights or causes of action any of (A) Citibank, both in its individual capacity and as Agent, (B) JPMorgan, or (C) any holder of a Debt Claim, may have against any other holder of a Debt Claim following the making of distributions to the holders of the Lender Claims; or (ii) any claims, rights or causes of action which any party who holds or acquires a Debt Claim may have against any prior holder of all or any portion of such Debt Claim.
D. Except for the Stipulation Claim, each of the Record Date Holder and the Undersigned Lender hereby releases Enron, the Debtors, the Reorganized Debtors, the Reorganized Debtor Plan Administrator and the Disbursing Agent, and any current or former officer, director, employee, agent, representative, partner, limited partner, member, trustee, manager, affiliate, attorney, accountant, financial advisor or other professional of any of the foregoing (collectively, the "Enron Released Parties"), of any and all claims (as defined in the Bankruptcy Code) and causes of action related to, or arising out of, the 364-Day Revolver which derive from or relate to the Undersigned Lender's Claim (but only insofar as such claims or causes of action derive from or relate to the Undersigned Lender's Claim, and not insofar as any claims or causes of action may derive from or relate to any Lender Claim that is not the Undersigned Lender's Claim), and the Undersigned Lender hereby releases Citibank, as Agent, and any of Citibank's current or former officer, director, employee, agent, representative, partner, limited partner, member, trustee, manager, affiliate, attorney, accountant, financial advisor or other professional, of and from any and all claims and causes of action related to, or arising out of, (i) any and all work performed directly in connection with the 364-Day Revolver Stipulation, including, but not limited to, any and all negotiations conducted in connection with the 364-Day Revolver Stipulation, (ii) the agreement to enter into the 364-Day Revolver Stipulation, (iii) the assignment of a new claim number with respect to any Lender Claim (as defined in the 364-Day Revolver Stipulation) under Paragraph 4(b) of the 364-Day Revolver Stipulation, and (iv) any and all distributions made under Paragraph 4(c) of the 364-Day Revolver Stipulation (together with (i), (ii) and (iii), the "364-Day Revolver Stipulation Matters"), which derive from or relate to the Undersigned Lender's Claim (but only insofar as such claims or causes of action derive from or relate to the Undersigned Lender's Claim, and not insofar as any claims or causes of action may derive from or relate to any Lender Claim that is not the Undersigned Lender's Claim); provided, however, that nothing contained in the 364-Day Revolver Stipulation (nor in this Lender Certificate) shall alter, amend, extinguish or otherwise modify any claims, rights or causes of action of the Undersigned Lender (or Record Date Holder) against Citibank, as Agent (other than such claims and causes of action related to, or arising out of, any and all 364-Day Revolver Stipulation Matters, all of which expressly are released as set forth herein), including, without limitation, any claims asserted in currently pending litigation against Citibank, JPMorgan, or any of their respective affiliates.
E. The Undersigned Lender agrees to indemnify and hold the Enron Released Parties harmless from and against any and all losses, liabilities, obligations, damages, deficiencies and expenses of any kind or nature, including, without limitation, reasonable attorneys' fees and expenses, suffered or incurred by any Enron Released Party as a result of any claim arising from or relating to the (i) creation and allowance of the Stipulation Claim and (ii) payments or distributions being made on account of the Stipulation Claim to the Record Date Holder.
F. Each of the Record Date Holder and the Undersigned Lender acknowledges that neither the 364-Day Revolver Stipulation nor this Lender Certificate alters, amends, extinguishes or otherwise modifies such party's obligations, if any, under Section 7.07 of the 364-Day Revolver.
G. If any of the representations or warranties contained herein prove to be materially false, (I) the Record Date Holder, or, if a distribution has been transferred to the Undersigned Lender, the Undersigned Lender, agrees to pay back any and all amounts, if any, distributed under the Plan to the Undersigned Lender in respect of the Stipulation Claim, plus interest at the federal judgment rate, and (II) each of the Record Date Holder and the Undersigned Lender agrees (i) that the Stipulation Claim will be disallowed and expunged, without prejudice to the Undersigned Lender submitting a further Lender Certificate in accordance with the 364-Day Revolver Stipulation, without any further action by the Court or by any other party and (ii) that the amount pertaining to the Stipulation Claim will be added back to the appropriate Remaining Debt Claim and all distributions on account of such amount will be withheld pursuant to the 364-Day Revolver Stipulation until such time as the conditions of the 364-Day Revolver Stipulation regarding distributions on account of such amount are satisfied; provided, however, that the Stipulation Claim relating to the Record Date Holder and the Undersigned Lender shall be reinstated upon the execution and delivery in accordance with the terms of the 364-Day Revolver Stipulation, by the Record Date Holder and the Undersigned Lender, of a Lender Certificate that contains true and accurate representations and warranties, subject to all the terms and conditions of the 364-Day Revolver Stipulation.
H. Communications with the Undersigned Lender shall be with:
Name: __________________________ Title: __________________________ Address: __________________________ __________________________ __________________________ Phone: __________________________
I. Communications with the Record Date Holder shall be with and distributions under the Plan to the Record Date Holder on the Stipulation Claim shall be made to:
Name: __________________________ Title: __________________________ Address: __________________________ __________________________ __________________________ Phone: __________________________
AGREED AND ACCEPTED:
[UNDERSIGNED LENDER NAME]
By: ___________________________ Date: ___________________________ [insert signatory name] Title: ___________________________
Duly Authorized
[RECORD DATE HOLDER NAME]
By: ___________________________ Date: ___________________________ [insert signatory name] Title: ___________________________
Duly Authorized
Deliver this Lender Certificate to: With a copy to:
Enron Corp. Estate Weil, Gotshal Manges LLP 1221 Lamar, Suite 1600 100 Federal Street, 34th Floor Houston, TX 77010-1221 Boston, MA 02110 Attn: Alan Quaintance, Jr. Attn: Andrew M. Troop, Esquire
Exhibit 1 ATTACH CHAIN OF TITLE FROM RECORD DATE HOLDER TO UNDERSIGNED LENDER AS APPROPRIATE
The undersigned hereby certifies that the attached description of the chain of title from the Record Date Holder to the Undersigned Lender is true and accurate.
______________________________ Signature
Name: __________________________ Title: __________________________ Address: __________________________ __________________________ __________________________ Phone: __________________________