Opinion
Case No. 01-16034 (AJG), Jointly Administered.
May 2, 2005
Upon consideration of the Reorganized Debtors' Eighty-First Omnibus Objection to Proofs of Claim, dated February 25, 2005, docket number 23911 and the Reorganized Debtors' Eighty-Second Omnibus Objection to Proofs of Claim, dated February 25, 2005, docket number 23914 (collectively the "Objections"), seeking the entry of an order modifying and allowing certain claims (the "Claims") pursuant to section 502(a) of title 11 of the United States Bankruptcy Code (the "Bankruptcy Code"), as identified onExhibit A through Exhibit C attached hereto; and it appearing that the modification and allowance of these Claims is in the best interests of the Reorganized Debtors, their creditors and all parties in interest; and, pursuant to Rule 3007 of the Federal Rules of Bankruptcy Procedure, good and sufficient notice having been provided to the attorneys for the statutory committee of unsecured creditors, the Office of the United States Trustee for the Southern District of New York, counsel to the Employment-Related Issues Committee, the persons or entities that filed proofs of claim identified on Exhibit A through Exhibit C and their attorneys (if known), and any other parties on the Master Service List; and it appearing that no other or further notice need be provided; and the Court having reviewed the Objection and having heard the statements of counsel in support of the relief requested therein at a hearing before the Court (the "Hearing"); and the Court having determined that the legal and factual bases set forth in the Objection and at the Hearing establish just cause for the relief granted herein; and upon all of the proceedings had before the Court; and after due deliberation and sufficient cause appearing therefor, it is;
ORDERED that pursuant to section 502(a) of the Bankruptcy Code the Claim identified on Exhibit A to this Order shall be modified and allowed as set forth on Exhibit C; and it is further
ORDERED that pursuant to section 502(a) of the Bankruptcy Code the Claim identified on Exhibit B is hereby disallowed and expunged in its entirety; and it is further
ORDERED that pursuant to section 105 of the Bankruptcy Code and Rule 9019 of the Bankruptcy Rules, the Modify and Allow Agreement and the actions contemplated thereby summarized on Exhibit A and Exhibit B and attached in full as Exhibit C, which documents the compromise and settlement of the claims subject thereto, are hereby approved and authorized in their entirety; and it is further;
ORDERED that by entry of this order, Enron Corp v. Brazos VPP Limited Partnership and Brazos VPP Trust, Adversary Proceeding No. 03-93584, now pending in the Bankruptcy Court will be dismissed with prejudice and without costs to either party.
EXHIBIT A (Summary of Claim to Modify and Allow) EXHIBIT A Supplemental Order to Eighty-First and Eighty-Second Omnibus Objection (Modify Allow) Claimant Informatuon Claim Number Debtor Claim Amount of Claim Class Debtor To Be Amount of Claim Claim Class Claim Class As Filed Against Claim As Filed As Filed Allowed As Allowed As Allowed Allowed Per Plan Brazos VPP Limited Partnership 9001 ENA $0.00 Secured ENA $2,939,920.31 Unsecured Class 5 Clifford Chance US, LLP ERAC $0.00 Secured ENAU $2,450,41.69 Unsecured Class 38 ATTN: Mark F. Liscio CORP $0.00 Secured CORP $2,695,166.00 Unsecured Class 185 31 West 52nd Street New York, NY 10019-6131EXHIBIT B (Summary of Claim to be Expunged) EXHIBIT B Supplemental Order to Eighty-First and Eighty-Second Omnibus Objection (Expunged)
Claimant Information Claim Number Debtor Claim Amount of Claim As Claim Class Filed Against Filed As Filed Brazos VPP Trust 9003 CORP $0.00 Unsecured Clifford Change US LLP 31 West 52nd Street Attn: Mark F. Liscio, Esq New York, NY 10019-6131 EXHIBIT C (Letter Agreement) FOR SETTLEMENT PURPOSES ONLY SUBJECT TO FEDERAL RULES OF EVIDENCE 408 AND NEW YORK CIVIL PRACTICE LAW AND RULES § 5447 LETTER AGREEMENT March 14, 2005Brazos VPP Limited Partnership Brazos VPP Trust c/o Kaye Scholer LLP 425 Park Avenue New York, NY 10022 Attn. Jill E. Kurtzman, Esq.
Re: Proof of Claim: #9001 ("Brazos LP Proof of Claim") Named Debtors: Enron Corp. ("ENE"), Enron Reserve Acquisition Corp. ("ERAC") and Enron North America Corp. ("ENA") Unnamed Debtor: ENA Upstream Company LLC ("ENAU") Named Creditor: Brazos VPP Limited Partnership (Brazos LP")
Proof of Claim: #9003 ("Brazos Trust Proof of Claim") Named Debtor: ENE Named Creditor: Brazos VPP Trust ("Brazos Trust")
Dear Ms. Kurtzman:
On December 2, 2001, Enron Corp. and certain affiliated entities (collectively, "Debtors" and individually, a "Debtor") filed a voluntary petition for relief under Chapter 11 of Title 11 of the United States Code, as amended, in the United States Bankruptcy Court for the Southern District of New York (the "Bankruptcy Court"). On October 10, 2002, Brazos LP and Brazos Trust (collectively, the "Creditors") filed with the Bankruptcy Court the Brazos LP Proof of Claim and Brazos Trust Proof of Claim, respectively (collectively, the "Proofs of Claim"). The Brazos LP Proof of Claim sets forth certain claims against ENE, ERAC and ENA, each a Debtor. ENAU, a Debtor, succeeded to certain obligations of ENA pertaining to certain of such claims. The Brazos Trust claim sets forth certain claims against ENE. On July 15, 2004, the Bankruptcy 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 July 2, 2004 (the "Plan").
In consideration of the agreements of the undersigned Debtors contained herein:
(i) Brazos LP represents and warrants to Debtors that Brazos LP was the holder of the Brazos LP Proof of Claim as of November 29, 2004, and has not transferred, assigned or conveyed any or all of its interest in the Brazos LP Proof of Claim since that date, it being understood that any distribution by Debtors in respect of the Brazos LP Proof of Claim shall be made only to Brazos LP;
(ii) Brazos Trust represents and warrants to Debtors that Brazos Trust remains the sole holder of the Brazos Trust Proof of Claim as of the date hereof; and
(iii) each of the Creditors represents and warrants to Debtors that it has not received any payment from any person or entity in respect of the Claims.
Subject to entry of an order of the Bankruptcy Court approving this Letter Agreement (the "Order"), the undersigned Debtors and Creditors now agree as follows:
(a) With respect to Proof of Claim #9001, Brazos LP shall have an (i) allowed, nonsubordinated, general, unsecured, non-priority claim against ENA in Class 5 of the Plan in the amount of US$2,939,920.31 (the "Allowed ENA Claim"), (ii) allowed, nonsubordinated, general, unsecured, non-priority claim against ENAU in Class 38 of the Plan in the amount of US$2,450,411.69 (the "Allowed ENAU Claim"), and (iii) "Allowed Enron Guaranty Claim" (as defined in the Plan) in Class 185 of the Plan in the amount of US$5,390,332.00 against ENE discounted at 50% pursuant to the election made by Brazos LP pursuant to Section 28.2 of the Plan, such that the adjusted allowed amount shall be $2,695,166.00 (such Allowed Enron Guaranty Claim, together with the Allowed ENA Claim and the Allowed ENAU Claim, collectively, the "Allowed Claims"). Brazos LP shall receive the additional cash distribution provided for in Section 7.3 of the Plan in respect of each of the Allowed ENA Claim and the Allowed ENAU Claim in lieu of all or a portion of the Plan Securities (as defined in the Plan) to which Brazos LP is otherwise entitled to receive pursuant to the Plan in respect of each of the Allowed ENA Claim and Allowed ENAU Claim, as provided in Section 7.3 of the Plan.
(b) The balance of the Brazos LP Proof of Claim will be disallowed (including, without limitation, any contingent, disputed or unliquidated amounts) by virtue of entry of the Order.
(c) The Brazos Trust Proof of Claim will be disallowed in its entirety by virtue of entry of the Order.
(d) By virtue of entry of the Order, Enron Corp. v. Brazos VPP Limited Partnership and Brazos VPP Trust, Adversary Proceeding No. 03-93584 (AJG), pending in the Bankruptcy Court (the "Adversary Proceeding") will be dismissed with prejudice and without costs to either party.
The foregoing agreements with respect to the treatment of the Proofs of Claim and the dismissal with prejudice of the Adversary Proceeding resolve (i) all issues and disputes pertaining to the Proofs of Claims (including, without limitation, any contract or agreement described or referred to therein) that Creditors have or may have against Debtors or that Debtors have or may have against Creditors, and (ii) all causes of action that Creditors have or may have against Debtors or that Debtors have or may have against Creditors and in each case, arising from any contract or agreement described or referenced in the Proofs of Claim or any substantiations thereof. In addition, (1) Creditors agree that they shall have no, and shall not assert any, further or additional claims or causes of action against Debtors pertaining to the Proofs of Claim or any contract or agreement described or referenced in the Proofs of Claim, and (2) Debtors agree that they shall have no, and shall not assert, any further or additional claims or causes of action against the Creditors pertaining to the Proofs of Claim or any contract or agreement described or referenced in the Proofs of Claim.
If no Order is entered, (i) this Letter Agreement shall be null and void and of no further effect and (ii) the Proofs of Claim shall remain outstanding and subject to objection by the Debtors notwithstanding any time limitations in Article 21.1 or any other provision of the Plan.
This Letter Agreement shall be interpreted and enforced in accordance with the laws of the State of New York without reference to New York's conflicts of laws provisions. The parties have jointly participated in drafting this Letter Agreement and any ambiguities shall not be construed against either the Creditors or the Debtors.
This Letter Agreement sets forth the entire understanding of the parties hereto concerning the subject matter hereof and may not be modified or amended except by a writing executed by all parties hereto, which, if necessary, shall be so ordered by the Bankruptcy Court on such notice as may be appropriate in the circumstances. The Bankruptcy Court shall retain exclusive jurisdiction with respect to any and all issues or disputes that may arise in connection with this Letter Agreement.
If this Letter Agreement is acceptable to you, please so indicate within seven (7) days by signing the four (4) enclosed copies of this Letter Agreement, retaining one for your files, returning one by fax to ENE at (713) 853-9252, and three by U.S. Mail to the following address:
Ms. Lisa Bills Enron Corp. 1221 Lamar, Suite 1600 Houston, TX 77010
This Letter Agreement may be executed by the parties hereto individually or in combination, in one or more counterparts, each of which shall be an original and all of which, taken together, shall constitute one and the same agreement.
Should you have any questions about this matter, please do not hesitate to call Lisa Bills at (713) 853-1703.