Opinion
Case No. 01-16034 (AJG), Jointly Administered.
May 27, 2005
ENRON CORP. and the REORGANIZED DEBTORS, Martin J. Bienenstock (MB 3001), Brian S. Rosen (BR 0571), David R. Berz (DB 4517), Andrew M. Troop (pro hac vice), WEIL, GOTSHAL MANGES LLP, New York, New York.
ABN AMRO BANK, N.V., Kristopher M. Hansen, STROOCK STROOCK LAVAN LLP, New York, NY.
This stipulation and order (the "Stipulation") is entered into by and among Enron Corp. ("Enron") and certain of its direct and indirect subsidiaries, as reorganized debtors (the "Reorganized Debtors"), by and through its undersigned counsel, and ABN AMRO Bank, N.V. ("ABN"), by and through its undersigned counsel.
Background
1. Commencing on December 2, 2001 (the "Petition Date"), and periodically thereafter, Enron and certain of its direct and indirect subsidiaries (collectively, the "Debtors") each filed a voluntary petition for relief under chapter 11 of title 11 of the United States Code (the "Bankruptcy Code"). The Debtors' chapter 11 cases have been procedurally consolidated for administrative purposes.
2. From and after the Petition Date, the Debtors operated their businesses and managed their properties as debtors and debtors in possession pursuant to section 1107(a) of the Bankruptcy Code.
3. On or about January 9, 2004, the Debtors filed the Omnibus Objection to Proofs of Claim of the Defendants Named in the Debtors' Complaint, as Amended, Filed in Adversary Proceeding No. 03-09266 (AJG) for the Avoidance and Return of Preferential Payments and Fraudulent Transfers, Equitable Subordination, and Damages, Together with Objections and Counterclaims to Creditor Defendants' Claims (the "Omnibus Objection").
4. On July 15, 2004, the Court entered an order confirming the Debtors' Supplemental Modified Fifth Amended Joint Plan of Affiliated Debtors Pursuant to Chapter 11 of the United States Bankruptcy Code, dated as of July 2, 2004, as subsequently modified (the "Plan"). On November 17, 2004 (the "Effective Date"), the Plan became effective, and as of the Effective Date, the Debtors became the Reorganized Debtors.
5. On or about 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 (the "Mega Complaint") against various defendants (the "Mega Claim Defendants") in Adversary Proceeding No. 03-09266 (the "Mega Claim Litigation"). The Mega Complaint seeks, inter alia, (i) to recover certain payments received by the Mega Claim Defendants as fraudulent preferences and/or preferential transfers, (ii) to equitably subordinate the Mega Claim Defendants' claims, (iii) to recover damages, and (iv) to disallow, pursuant to section 502(d) of the Bankruptcy Code, the Mega Claim Defendants' claims.
6. On October 16, 2004, the Debtors filed a notice partially withdrawing their objection to that portion of the proofs of claim filed by Citibank, N.A., in connection with the 364 Day Revolving Credit Agreement and the Long Term Revolving Credit Agreement representing claims not held by Mega Claim Defendants as of the Petition Date, i.e., not held by one of the lenders included in the Mega Complaint.
7. On or about March 10, 2005, the Reorganized Debtors filed (a) the Objection and Request for Alternative 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, and (b) the Objection and Request for Alternative Forms of Relief With Respect to Claims Based Upon the Long Term Revolving Credit Agreement, Including, Without Limitation, Reclassification of Claims as General Unsecured Claims (together the "Revolver Objections"), pursuant to which the Reorganized Debtors have sought, among other things, (a) to disallow a portion of the Citibank Proofs of Claim, (b) to allow certain "Non-Challenged Revolver Claims" (as defined therein) as general unsecured claims under class 4 of the Plan, and (c) to reflect in their claims registry and assign, or caused to be assigned, a claim number to "Allowed Non-Challenged Revolver Claims" (as defined therein) such that such distributions on account of such claims may commence prior to resolution of the Mega Complaint. As of the date hereof, the Revolver Objections are currently pending before this Court.
The Reorganized Debtors' Objection to the ABN Claims
8. On March 1, 2005, the Reorganized Debtors filed their objection, docket number 23964 (the "Objection"), to the following ten (10) proofs of claim (collectively, the "ABN Claims") filed by ABN in these cases:
a. Claim No. 13295 filed against Enron Corp. in Case No. 01-16034;
b. Claim No. 13495 filed against Enron Broadband Services, Inc. in Case No. 01-16039;
c. Claim No. 13496 filed against Enron Energy Services Operations, Inc., in Case No. 01-16040;
d. Claim No. 13497 filed against Enron Broadband Services, LP, in Case No. 01-16483;
e. Claim No. 13498 filed against Enron Energy Services, LLC in Case No. 01-16043;
f. Claim No. 13499 filed against Enron Capital and Trade Resources Corp. in Case No. 02-10613;
g. Claim No. 13500 filed against Enron Reserve Acquisition Corp., Chapter 11, Case No. 02-12347;
h. Claim No. 13819 filed against Enron Ventures Corp., Chapter 11, Case No. 02-11242;
i. Claim No. 14089 filed against Enron North America Corp., Chapter 11, Case No. 01-16035; and
j. Claim No. 12790 filed against all of the Enron-related debtors.
9. Although the ABN Claims were each filed against different Debtors, the first nine proofs of claim identified above in paragraph 8, subparts a — i inclusive (collectively, the "Rider Claims"), have attached to them the same "Rider" describing the claims asserted by ABN.
10. The last proof of claim subject to the Objection identified in paragraph 8(j), Claim No. 12790, has attached to it a wholly-different statement describing bases for this claim that is wholly-distinct from the bases for the Rider Claims.
11. Capitalized terms not otherwise defined in this Stipulation shall have the meanings ascribed to them in the Objection. Without it constituting an admission by ABN, a copy of the Objection is attached to this Stipulation as Exhibit 1 for ease of reference.
12. Also, on March 11, 2005, the Reorganized Debtors filed a separate objection, docket number 23400, addressing (among other claims) only a portion of Claim No. 12790, the portion relating to the FRN (the "FRN Objection").
13. Pursuant to that certain Notice of Withdrawal of Proof of Claim as filed with this Court on March 24, 2005, ABN withdrew proof of claim number 12790, and the FRN Objection is thus moot.
Desire to Resolve the Objection
14. At this time, the Reorganized Debtors and ABN wish to resolve consensually the ABN Claims and the Objection in order to avoid unnecessary cost and expense.
Agreement
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Reorganized Debtors and ABN hereby stipulate and agree as follows:
The ABN Claims Will Be Disallowed and Expunged
15. Each and every of the ABN Claims is hereby disallowed and expunged subject to paragraphs 16 to 20 below (and as disallowed and expunged, the "Disallowed ABN Claims"). Specifically, subject to paragraphs 16 to 20 below:
(a) Claim No. 13295 filed against Enron Corp. in Case No. 01-16034. Except to the extent set forth in paragraph 18 below, claim No. 13295 is hereby disallowed.
(b) Claim No. 13495 filed against Enron Broadband Services, Inc. in Case No. 01-16039. Claim No. 13495 is hereby disallowed and expunged in its entirety.
(c) Claim No. 13496 filed against Enron Energy Services Operations, Inc., in Case No. 01-16040. Claim No. 13496 is hereby disallowed and expunged in its entirety.
(d) Claim No. 13497 filed against Enron Broadband Services, LP, in Case No. 01-16483. Claim No. 13497 is hereby disallowed and expunged in its entirety.
(e) Claim No. 13498 filed against Enron Energy Services, LLC in Case No. 01-16043. Claim No. 13498 is hereby disallowed and expunged in its entirety.
(f) Claim No. 13499 filed against Enron Capital and Trade Resources Corp. in Case No. 02-10613. Claim No. 13499 is hereby disallowed and expunged in its entirety.
(g) Claim No. 13500 filed against Enron Reserve Acquisition Corp., Chapter 11, Case No. 02-12347. Claim No. 13500 is hereby disallowed and expunged in its entirety.
(h) Claim No. 13819 filed against Enron Ventures Corp., Chapter 11, Case No. 02-11242. Claim No. 13819 is hereby disallowed and expunged in its entirety.
(i) Claim No. 14089 filed against Enron North America Corp., Chapter 11, Case No. 01-16035. Claim No. 14089 is hereby disallowed and expunged in its entirety.
Certain Reservations with respect to the Disallowed ABN Claims
16. Notwithstanding anything to the contrary contained herein, nothing in this Stipulation is intended to, nor shall it be construed to, alter, amend, waive or limit the rights of ABN (a) to receive distributions or payments, if any, from any agent or other non-debtor party (whether or not a Mega Claim Defendant or assignee thereof and whether or not the Mega Claim Litigation has been resolved) otherwise obligated to make distributions to it or (b) to the benefits of any prior order entered by this Court addressing any of the ABN Claims or the underlying subject matter of any of the ABN Claims.
17. Without in any way limiting the scope of paragraph 16 above, and notwithstanding anything contained herein to the contrary,
a. ABN retains all of its rights, if any, to receive or participate in distributions made by the agent for the Long Term Revolving Credit Agreement as a result of any distributions made by the Reorganized Debtors on account of the Long Term Revolving Credit Proof of Claim.
b. ABN retains all of its rights, if any, to receive or participate in distributions made by the agent for the 364 Day Revolving Credit Agreement as a result of any distributions made by the Reorganized Debtors on account of the 364 Day Revolving Credit Proof of Claim.
c. ABN retains all of its rights, if any, to receive or participate in distributions made by the agent for the LC Agreement as a result of any distributions made by the Reorganized Debtors on account of the LC Group Proof of Claim.
d. ABN retains all of its rights, if any, to receive or participate in distributions made by the agent for the Brazos Credit Agreement as a result of any distributions made by the Reorganized Debtors on account of the Brazos Group Proof of Claim.
e. ABN retains all of its rights, if any, to receive or participate in distributions made by the agent for the Choctaw Credit Agreement as a result of any distributions made by the Reorganized Debtors on account of the Choctaw Group Proofs of Claim; subject, however, in all respects to the terms of the Choctaw Order, and all of ABN's rights and remedies under the Choctaw Order are hereby preserved. Nothing herein alters, modifies or amends the terms of the Choctaw Order.
f. ABN retains all of its rights, if any, to receive or participate in distributions made by the agent for the Hawaii I Facility and the Hawaii II Facility as a result of any distributions made by the Reorganized Debtors on account of the Hawaii Facilities Group Proof of Claim; subject, however, in all respects to the terms of the Hawaii Order, and all of ABN's rights and remedies under the Hawaii Order are hereby preserved. Nothing herein alters, modifies or amends the terms of the Hawaii Order.
g. ABN retains all of its rights, if any, to receive or participate in distributions made by the agent for the E-Next Loan Agreement as a result of any distributions made by the Reorganized Debtors on account of the E-Next Group Proofs of Claim.
h. ABN retains all of its rights, if any, to receive or participate in distributions made by the indenture trustee for the Enron Subordinated Debentures as a result of any distributions made by the Reorganized Debtors on account of the BONY Claim.
i. ABN retains all of its rights, if any, to receive or participate in (a) distributions made by the indenture trustee for the 4.375% Bonds as a result of any distributions made by the Reorganized Debtors on account of Claim No. 23342 filed by Wells Fargo Bank Minnesota, N.A., (b) distributions made by the indenture trustee for the Marlin Bonds as a result of any distributions made by the Reorganized Debtors on account of Claim No. 23306 filed by Bank of New York, and (c) distributions made through Euroclear on the FRN as a result of any distributions made by the Reorganized Debtors on account of the FRN as more fully described in the FRN Objection.
j. All of ABN's rights and remedies, if any, under the Backbone Order are hereby preserved.
k. All of ABN's rights and remedies, if any, under the Rawhide Order are hereby preserved.
l. All of ABN's rights and remedies, if any, under that certain Settlement Stipulation Expunging And Disallowing Claim Nos. 13832, 23844 and 23845 Filed By ABN AMRO Bank N.V. and Claim Nos. 23385, 23386 and 23387 Filed By EcoElectrica, L.P. and Partially Disallowing Claim Nos. 13295, 13495, 13496, 13497, 13498, 13499, 13500, 13819 and 14089 Filed By ABN AMRO Bank N.V. are hereby preserved (the "EcoElectrica Settlement"). The EcoElectrica Settlement is being filed with the Court contemporaneously with the filing of this Stipulation. Notwithstanding the foregoing, it is expressly acknowledged and agreed that, to the extent that the EcoElectica Settlement preserved certain claims of ABN as asserted in claim nos. 13295, 13495, 13496, 13497, 13498, 13499, 13500, 13819 and 14089, the allowance and/or disallowance of those other claims are governed by the terms of this Stipulation.
The Enron/ABN Letter of Credit Claim Portion of Claim No. 13295 Is Allowed
18. Notwithstanding anything to the contrary contained herein, Claim No. 13295 is hereby allowed as a Class 4 Claim under the Plan in the amount of $5,972,960.50 based upon the Enron/ABN Letter of Credit Claim.
Reservation of Rights
19. Other than as expressly provided herein, nothing contained in this Stipulation shall constitute a waiver, amendment or limitation of any other rights or remedies, if any, of ABN against any person or entity other than the Reorganized Debtors, and any entity owned or controlled by the Reorganized Debtors, in connection with the documents and agreements underlying the ABN Claims, and all such rights and remedies are hereby reserved.
Miscellaneous Provisions
20. This Stipulation will be presented to the Court promptly upon its execution by the Reorganized Debtors and ABN, by and through their respective counsel.
21. Pending approval or denial of this Stipulation, and subject to paragraph 23 below, the current deadline for responding to the Objection is suspended and the hearing date will be continued until such further date and time as shall be agreed to by the parties hereto and scheduled by this Court.
22. If this Stipulation is not approved by the Court, ABN's response to the Objection will be due within 20 days of any such denial, and the hearing on the Objection will be scheduled for the first available omnibus hearing date in this case before the Court that is at least 10 days after the response is due.
23. Headings are provided in this Stipulation only for ease of reference. The entire document constitutes the agreement of the Reorganized Debtors and ABN.
24. This Stipulation shall be effective upon it being "so-ordered" by the Court. This Court shall retain jurisdiction to hear all matters relating to, and all disputes arising under, this Stipulation.
25. Upon approval of the Stipulation, the Objection will be deemed resolved to the extent set forth herein.
26. This Stipulation shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and assigns. Notwithstanding the foregoing, no Party hereto may assign any of its rights or obligations hereunder without the written consent of all of the other Parties.
27. This Stipulation may be executed by facsimile signatures, and such facsimile signatures will be deemed to be as valid as an original signature whether or not confirmed by delivering the original signatures in person, by courier or by mail, although it is the Parties' intentions to deliver original signatures after delivery of facsimile signatures.
SO ORDERED.