EXHIBIT 10.2
EXECUTION COPY
PREFERRED EQUITY TRUST AGREEMENT
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TABLE OF CONTENTS
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ARTICLE I ESTABLISHMENT AND PURPOSE OF THE TRUST................................................................... 3
1.1 Purpose of the Trust.......................................................................................... 3
1.2 Transfer of Property to Trustee............................................................................... 3
1.3 Relationship to the Plan...................................................................................... 3
1.4 Title to Trust Assets......................................................................................... 3
1.5 Rights of Holders of Preferred Equity Trust Interests......................................................... 4
1.6 Ownership and Control of Trust Fund........................................................................... 5
1.7 Funding of the Trust.......................................................................................... 5
ARTICLE II PREFERRED EQUITY TRUST INTERESTS......................................................................... 5
2.1 Identification of Holders of Preferred Equity Trust Interests................................................. 5
2.2 Conflicting Claims to Beneficial Interests.................................................................... 6
2.3 Non-Transferability of Preferred Equity Trust Interests....................................................... 6
ARTICLE III AUTHORITY, LIMITATIONS, DISTRIBUTIONS AND DUTIES......................................................... 6
3.1 (a) Periodic Distribution; Withholding........................................................................ 6
3.2 Reporting Duties of the Trustee............................................................................... 7
3.3 Termination of Trust.......................................................................................... 8
3.4 Continuance of Trust for Winding Up........................................................................... 8
3.5 General Powers of the Trustee................................................................................. 8
3.6 Limitation of Trustee's Authority............................................................................. 10
3.7 Books and Records............................................................................................. 11
3.8 Additional Powers............................................................................................. 11
3.9 Compliance with Laws.......................................................................................... 11
3.10 Voting of Shares.............................................................................................. 11
ARTICLE IV THE TRUSTEE.............................................................................................. 12
4.1 Generally..................................................................................................... 12
4.2 Liability of Trustee and Indemnification...................................................................... 12
4.3 Reliance by Trustee........................................................................................... 13
4.4 Investment Powers............................................................................................. 13
4.5 Requirement of Adequate Resources............................................................................. 14
4.6 Expense Reimbursement and Compensation........................................................................ 14
4.7 No Bond....................................................................................................... 14
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TABLE OF CONTENTS
(CONTINUED)
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ARTICLE V SUCCESSOR TRUSTEE........................................................................................ 14
5.1 Removal....................................................................................................... 14
5.2 Resignation................................................................................................... 14
5.3 Simultaneous Removal and Resignation.......................................................................... 14
5.4 Appointment of Successor Trustee.............................................................................. 15
ARTICLE VI REPORTS TO BENEFICIARIES................................................................................. 15
6.1 Reports....................................................................................................... 15
ARTICLE VII AMENDMENT AND WAIVER..................................................................................... 15
7.1 Amendment and Waiver.......................................................................................... 15
ARTICLE VIII MISCELLANEOUS PROVISIONS................................................................................. 16
8.1 Intention of Parties to Establish Trust....................................................................... 16
8.2 Laws as to Construction/Jurisdiction.......................................................................... 16
8.3 Severability.................................................................................................. 16
8.4 Notices....................................................................................................... 16
8.5 Fiscal Year................................................................................................... 17
8.6 Prevailing Party.............................................................................................. 17
8.7 Counterparts.................................................................................................. 17
8.8 Entire Agreement.............................................................................................. 17
8.9 Confidentiality............................................................................................... 17
8.10 Headings...................................................................................................... 18
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PREFERRED EQUITY TRUST AGREEMENT
This Trust Agreement (the "Trust Agreement"), dated as of November
16, 2004, by and among Enron Corp. ("Enron"), Enron Metals & Commodity Corp.,
Enron North America Corp., Enron Power Marketing, Inc., PBOG Corp., Smith Street
Land Company, Enron Broadband Services, Inc., Enron Energy Services Operations,
Inc., Enron Energy Marketing Corp., Enron Energy Services, Inc., Enron Energy
Services, LLC, Enron Transportation Services, LLC, BAM Lease Company, ENA Asset
Holdings L.P., Enron Gas Liquids, Inc., Enron Global Markets LLC, Enron Net
Works LLC, Enron Industrial Markets LLC, Operational Energy Corp., Enron
Engineering & Construction Company, Enron Engineering & Operational Services
Company, Garden State Paper Company, LLC, Palm Beach Development Company,
L.L.C., Tenant Services, Inc., Enron Energy Information Solutions, Inc., EESO
Merchant Investments, Inc., Enron Federal Solutions, Inc., Enron Freight Markets
Corp., Enron Broadband Services, L.P., Enron Energy Services North America,
Inc., Enron LNG Marketing LLC, Calypso Pipeline, LLC, Enron Global LNG LLC,
Enron International Fuel Management Company, Enron Natural Gas Marketing Corp.,
ENA Upstream Company LLC, Enron Liquid Fuels, Inc., Enron LNG Shipping Company,
Enron Property & Services Corp., Enron Capital & Trade Resources International
Corp., Enron Communications Leasing Corp., Enron Wind Corp., Enron Wind Systems,
Inc., Enron Wind Energy Systems Corp., Enron Wind Maintenance Corp., Enron Wind
Constructors Corp., EREC Subsidiary I, LLC, EREC Subsidiary II, LLC, EREC
Subsidiary III, LLC, EREC Subsidiary IV, LLC, EREC Subsidiary V, LLC, Intratex
Gas Company, Enron Processing Properties, Inc., Enron Methanol Company, Enron
Ventures Corp., The New Energy Trading Company, EES Service Holdings, Inc.,
Enron Wind Development LLC, ZWHC LLC, Zond Pacific, LLC, Enron Reserve
Acquisition Corp., EPC Estates Services, Inc., f/k/a National Energy Production
Corporation, Enron Power & Industrial Construction Company, NEPCO Power
Procurement Company, NEPCO Services International, Inc., Caribe Verde (SJG)
Inc., f/k/a San Juan Gas Company, Inc., EBF LLC, Zond Minnesota Construction
Company LLC, Enron Fuels International, Inc., E Power Holdings Corp., EFS
Construction Management Services, Inc., Enron Management, Inc., Enron Expat
Services, Inc., Artemis Associates, LLC, Clinton Energy Management Services,
Inc., LINGTEC Constructors L.P., EGS New Ventures Corp., Louisiana Gas Marketing
Company, Louisiana Resources Company, LGMI, Inc., LRCI, Inc., Enron
Communications Group, Inc., EnRock Management, LLC, ECI-Texas, L.P., EnRock,
L.P., ECI-Nevada Corp., Enron Alligator Alley Pipeline Company, Enron Wind Storm
Lake I LLC, ECT Merchant Investments Corp., EnronOnLine, LLC, St. Charles
Development Company, L.L.C., Calcasieu Development Company, L.L.C., Calvert City
Power I, L.L.C., Enron ACS, Inc., LOA, Inc., Enron India LLC, Enron
International Inc., Enron International Holdings Corp., Enron Middle East LLC,
Enron WarpSpeed Services, Inc., Modulus Technologies, Inc., Enron
Telecommunications, Inc., DataSystems Group, Inc. Risk Management & Trading
Corp., Omicron Enterprises, Inc., EFS I, Inc., EFS II, Inc., EFS III, Inc., EFS
V, Inc., EFS VI, L.P., EFS VII, Inc., EFS IX, Inc., EFS X, Inc., EFS XI, Inc.,
EFS XII, Inc., EFS XV, Inc., EFS XVII, Inc., Jovinole Associates, EFS Holdings,
Inc., Enron Operations Services, LLC, Green Power Partners I LLC, TLS Investors,
L.L.C., ECT Securities Limited Partnership, ECT Securities LP Corp., ECT
Securities GP Corp., KUCC Cleburne, LLC, Enron International Asset Management
Corp., Enron Brazil Power Holdings XI Ltd., Enron Holding Company L.L.C., Enron
Development Management Ltd., Enron International Korea Holdings Corp., Enron
Caribe VI Holdings Ltd., Enron International Asia Corp., Enron Brazil Power
Investments XI Ltd., Paulista Electrical Distribution, L.L.C., Enron Pipeline
Construction
Services Company, Enron Pipeline Services Company, Enron Trailblazer Pipeline
Company, Enron Liquid Services Corp., Enron Machine and Mechanical Services,
Inc., Enron Commercial Finance Ltd., Enron Permian Gathering Inc., Transwestern
Gathering Company, Enron Gathering Company, EGP Fuels Company, Enron Asset
Management Resources, Inc., Enron Brazil Power Holdings I Ltd., Enron do Brazil
Holdings Ltd., Enron Wind Storm Lake II LLC, Enron Renewable Energy Corp., Enron
Acquisition III Corp., Enron Wind Lake Benton LLC, Superior Construction
Company, EFS IV, Inc., EFS VIII, Inc., EFS XIII, Inc., Enron Credit Inc., Enron
Power Corp., Richmond Power Enterprise, L.P., ECT Strategic Value Corp., Enron
Development Funding Ltd., Atlantic Commercial Finance, Inc., The Protane
Corporation, Enron Asia Pacific/Africa/China LLC, Enron Development Corp., ET
Power 3 LLC, Nowa Sarzyna Holding B.V., Enron South America LLC, Enron Global
Power & Pipelines LLC, Cabazon Power Partners LLC, Cabazon Holdings LLC, Enron
Caribbean Basin LLC, Victory Garden Power Partners I LLC, Oswego Cogen Company,
LLC and Enron Equipment & Procurement Company (collectively with Enron, as
Debtors under the Plan (hereinafter defined), and, as applicable, the
Reorganized Debtors under the Plan, the "Debtors") and Stephen Forbes Cooper,
LLC as trustee (together with any successor trustee, the "Trustee").
WITNESSETH
WHEREAS, the Debtors' Supplemental Modified Fifth Amended Joint Plan
of Affiliated Debtors Pursuant to Chapter 11 of the Bankruptcy Code, including,
without limitation, the Plan Supplement and the exhibits and schedules thereto,
dated July 2, 2004 (as the same has been or may be amended, the "Plan") filed in
the United States Bankruptcy Court for the Southern District of New York (the
"Bankruptcy Court"), provides for the establishment of the Preferred Equity
Trust (as defined in the Plan) evidenced hereby (the "Trust") in accordance with
the Plan.
WHEREAS, the Trust is created pursuant to, and to effectuate, the
Plan, and except with respect to the terms defined herein, all capitalized terms
contained herein shall have the meanings ascribed to them in the Plan;
WHEREAS, the Trust is created on behalf of, and for the sole benefit
of, the holders of Allowed Enron Preferred Equity Interests in Class 383
(collectively, the "Beneficiaries");
WHEREAS, the Plan provides that on the Effective Date the Enron
Preferred Equity Interests are to be canceled and the Debtors shall issue the
Exchanged Enron Preferred Stock (each class of which shall replace the
corresponding canceled Enron Preferred Equity Interests with the same relative
rights and priorities) to the Trust, to be held for the benefit of the
Beneficiaries, and such Persons shall receive beneficial Preferred Equity Trust
Interests, in the classes and in an aggregate number equal to the outstanding
shares of Exchanged Enron Preferred Stock, which shall be allocated pro rata
among the holders of the respective classes of the Allowed Enron Preferred
Equity Interests in Class 383;
WHEREAS, the Exchanged Enron Preferred Stock and any distributions
to the Trust of Plan Currency and Trust Interests to be made under the Plan with
respect to the Exchanged Enron Preferred Stock (such Plan Currency and Trust
Interests referred to herein as
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the "Preferred Proceeds") and any Cash amounts contributed to the Trust to pay
for Trust expenses shall collectively be referred to as the "Trust Assets" for
the purposes of this Trust Agreement; and
WHEREAS, the Trust is intended to qualify as a liquidating trust
within the meaning of Treasury Regulation Section 301.7701-4(d);
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the Plan, the Debtors and the
Trustee agree as follows:
ARTICLE I
ESTABLISHMENT AND PURPOSE OF THE TRUST
1.1 Purpose of the Trust. The Trust is established for the sole purpose
of holding the Exchanged Enron Preferred Stock and distributing the Preferred
Proceeds, in accordance with Treasury Regulation Section 301.7701-4(d), with no
objective to continue or engage in the conduct of a trade or business.
Accordingly, the Trustee shall, and hereby represents that it shall, in an
expeditious but orderly manner, make timely distributions of the Preferred
Proceeds and not unduly prolong the duration of the Trust. Nothing in this
Section 1.1 shall be deemed to permit the Trustee to sell, liquidate, distribute
or otherwise transfer the Exchanged Enron Preferred Stock.
1.2 Transfer of Property to Trustee. Pursuant to the Plan, the Debtors
and the Trustee hereby establish the Trust on behalf of the holders of Allowed
Enron Preferred Equity Interests (whether or not Allowed on or after the
Effective Date), and on the Effective Date, Enron shall issue and deliver to the
Trust, all of the Exchanged Enron Preferred Stock, free and clear of any Lien,
Claim, Equity Interest, encumbrance or other interest in such property of any
other Person or entity except as provided in the Plan. The Trustee agrees to
accept and hold the Trust Assets in trust for the holders of the Preferred
Equity Trust Interests, subject to the terms of this Trust Agreement.
1.3 Relationship to the Plan. The principal purpose of this Trust
Agreement is to aid in the implementation of the Plan and therefore this Trust
Agreement incorporates the provisions of the Plan and the Confirmation Order
(which may amend or supplement the Plan). To that end, the Trustee shall have
full power and authority to take any action consistent with the purpose and
provisions of the Plan, the Confirmation Order and this Trust Agreement.
Additionally, the Trustee may seek any orders from the Bankruptcy Court, upon
notice and an opportunity for a hearing in furtherance of implementation of the
Plan, the Confirmation Order and this Trust Agreement. To the extent that there
is conflict between the provisions of this Trust Agreement, the provisions of
the Plan, or the Confirmation Order, each document shall have controlling effect
in the following rank order: (1) the Confirmation Order; (2) the Plan; and (3)
this Trust Agreement.
1.4 Title to Trust Assets.
(a) The transfer of the Trust Assets to the Trust shall be made by
the Debtors for the benefit and on behalf of the holders of Allowed Enron
Preferred Equity Interests (whether
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or not Allowed on or after the Effective Date). Upon the issuance of the
Exchanged Enron Preferred Stock, the Trustee shall have all right, title and
interest in the Exchanged Enron Preferred Stock.
(b) For all federal income taxes purposes (e.g. IRC Sections
61(a)(12), 483, 1001, 1012 and 1274), all parties (including, without
limitation, the Debtors, the Trustee, and the holders of the Preferred Equity
Trust Interests) shall treat the issuance of the Exchanged Enron Preferred Stock
to the Trust in accordance with the terms of the Plan as an issuance to holders
of Allowed Enron Preferred Equity Interests in Class 383 followed by a transfer
by such holders to the Trust and the holders of Preferred Equity Trust Interests
shall be treated as the grantors and owners thereof.
(c) As of the date hereof, the Debtors hereby transfer, assign and
deliver to the Trustee all of their right, title and interest in and to any
attorney-client privilege, work-product privilege, or other privilege or
immunity attaching to any documents or communications (whether written or oral)
associated with the Trust Assets (collectively, "Privileges"), which shall vest
in the Trustee and its representatives.
(d) On or after the date hereof, the Debtors shall (i) deliver or
cause to be delivered to the Trustee any and all documents in connection with
the Trust Assets (including those maintained in electronic format and original
documents) whether held by the Debtors and each of their respective employees,
agents, advisors, attorneys, accountants or any other professionals hired by the
Debtors, and (ii) provide access to such employees of the Debtors and each of
their respective agents, advisors, attorneys, accountants or any other
professionals hired by the Debtors with knowledge of matters relevant to the
Trust Assets. Upon the reasonable request of the Trustee, the Debtors shall
provide the Trustee with a list of all documents in connection with the Trust
Assets known to it but not held by it or any of its employees, agents, advisors,
attorneys, accountants or any other professionals. Such list shall contain a
description of each document, to the extent feasible, as well as the name of the
Entity or Person holding such document.
(e) At any time and from time to time on and after the date
hereof, the Debtors agree (i) at the reasonable request of the Trustee to
execute or deliver any instruments, documents, books, and records (including
those maintained in electronic format and original documents as may be needed),
and (ii) to take, or cause to be taken, all such further actions as the Trustee
may reasonably request in order to evidence or effectuate the transfer of the
Trust Assets and the Privileges to the Trust and the consummation of the
transactions contemplated hereby, by the Plan and by the Confirmation Order and
to otherwise carry out the intent of the parties hereunder and under the Plan
and the Confirmation Order.
1.5 Rights of Holders of Preferred Equity Trust Interests. The holders
of the Preferred Equity Trust Interests shall be the beneficial owners of the
Trust created by this Trust Agreement and the Trustee shall retain only such
incidents of ownership as are necessary to undertake the actions and
transactions authorized herein. Each holder of Preferred Equity Trust Interests
shall be entitled to participation in the rights and benefits due to a
beneficiary according to his or her Preferred Equity Trust Interests, and each
holder of Preferred Equity Trust Interests
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shall take and hold his or her Preferred Equity Trust Interests subject to all
of the terms and provisions of this Trust Agreement, the Plan and the
Confirmation Order.
1.6 Ownership and Control of Trust Fund. Except as is hereinafter
expressly provided, no holder of Preferred Equity Trust Interests shall have any
title or right to, or possession, management or control of the Trust Assets, or
any right to call for a partition, division or accounting of the Trust Assets,
and no widower, widow, heir or devisee of any individual who may be a holder of
Preferred Equity Trust Interests, or bankruptcy trustee, receiver or similar
person of any holder of Preferred Equity Trust Interests shall have any right,
statutory or otherwise (including any right of dower, homestead or inheritance,
or of partition, as applicable), in any property forming a part of the Trust
Assets, but the whole title to all of the Trust Assets shall be vested in the
Trustee and the sole interest of the holders of Preferred Equity Trust Interests
shall be the rights and benefits given to such persons under this Trust
Agreement.
1.7 Funding of the Trust. To the extent that the Cash and Cash
Equivalents of the Trust are insufficient to satisfy expenses incurred by the
Trust, the Trustee may request that the Debtors advance sufficient funds to the
Trust to satisfy such expenses, which decision to provide such funds shall be in
the sole discretion of the Debtors.
ARTICLE II
PREFERRED EQUITY TRUST INTERESTS
2.1 Identification of Holders of Preferred Equity Trust Interests. The
record holders of Preferred Equity Trust Interests shall be recorded and set
forth in a register maintained by the Trustee expressly for such purpose. The
initial list of record holders of, and the allocation of the various classes of,
Preferred Equity Trust Interests, as described below, shall be based on, and
correspond to, the list of holders of the various classes of Allowed Enron
Preferred Equity Interests in Class 383 as maintained by the Reorganized Debtor
Plan Administrator pursuant to Section 18.1 of the Plan. All references in this
Trust Agreement to holders shall be read to mean holders of record as set forth
in the official register maintained by the Trustee and shall not mean any
beneficial owner not recorded on such official register. Unless expressly
provided herein, the Trustee may establish a record date, which he deems
practicable for determining the holders for a particular purpose.
Notwithstanding anything contained herein to the contrary, there shall be
separate classes of Preferred Equity Trust Interests that (a) separately reflect
the distributions and other economic entitlements and (b) maintain the following
order of priority with respect to the separate classes of Exchanged Preferred
Equity Interests contributed: (1) Series 1 Exchanged Preferred Stock and Series
2 Exchanged Preferred Stock on a pari passu per share basis; (2) then Series 3
Exchanged Preferred Stock; and (3) then Series 4 Exchanged Preferred Stock so
that (a) the Series 1 Preferred Equity Trust Interests separately reflect the
distributions and other economic entitlements of the Series 1 Exchanged
Preferred Stock; (b) the Series 2 Preferred Equity Trust Interests separately
reflect the distributions and other economic entitlements of the Series 2
Exchanged Preferred Stock; (c) the Series 3 Preferred Equity Trust Interests
separately reflect the distributions and other economic entitlements of the
Series 3 Exchanged Preferred Stock; (d) the Series 4 Preferred Equity Trust
Interests separately reflect the distributions and other economic entitlements
of the Series 4 Exchanged Preferred Stock.
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2.2 Conflicting Claims to Beneficial Interests. If any conflicting
claims or demands are made or asserted with respect to the ownership or control
of the Preferred Equity Trust Interests of any holder thereof, or if there is
any disagreement among persons claiming to be permitted successors of any
Preferred Equity Trust Interests resulting in adverse claims or demands being
made in connection with such Preferred Equity Trust Interests (an "Ownership
Dispute"), then, in any of such events, the Trustee shall be entitled to refuse
to comply with any demand or direction made by any party to such Ownership
Dispute. In so refusing, the Trustee may elect to make no payment or
distribution with respect to the Preferred Equity Trust Interests relating to
the Ownership Dispute, or any part thereof, and to refer such Ownership Dispute
to the Bankruptcy Court, which shall have exclusive jurisdiction over resolution
of such Ownership Dispute. In so doing, the Trustee shall not be or become
liable to any of such parties for its refusal to comply with any demand or
direction made by them, nor shall the Trustee be liable for interest on any
funds which it may so withhold. The Trustee shall be entitled to refuse to act
until either (i) the rights of the adverse claimants have been adjudicated by a
final judgment of the Bankruptcy Court or (ii) all differences have been
resolved by a valid written agreement among all of such parties and the Trustee,
which agreement shall include a complete release of the Trustee.
2.3 Non-Transferability of Preferred Equity Trust Interests. The
Preferred Equity Trust Interests shall not be certificated and shall not be
transferable, assignable, pledged or hypothecated, in whole or in part, except
with respect to a transfer by will or under the laws of descent and
distribution. Any such transfer, however, shall not be effective until and
unless the Trustee receives written notice of such transfer and has been
provided with evidence satisfactory to it of the legal right of such transferee
to such Preferred Equity Trust Interest.
ARTICLE III
AUTHORITY, LIMITATIONS, DISTRIBUTIONS AND DUTIES
3.1 (a) Periodic Distribution; Withholding. The Trustee shall
distribute at least annually to the holders of Preferred Equity Trust Interests
all Preferred Proceeds; provided however, that prior to making any distribution
to holders of Preferred Equity Trust Interests, the Trust may retain such
amounts (i) as are reasonably necessary to meet contingent liabilities and to
maintain the value of the Trust Assets during liquidation, (ii) to pay
reasonable administrative expenses (including the reasonable fees, costs and
expenses of the Trustee and all professionals it retains and any taxes imposed
on the Trust or in respect of the Trust Assets), and (iii) to satisfy other
liabilities incurred or assumed by the Trust (or to which the Trust Assets are
otherwise subject) in accordance with the Plan or this Trust Agreement. All such
distributions shall be pro rata based on the number of Preferred Equity Trust
Interests held by a holder compared with the aggregate number of Preferred
Equity Trust Interests outstanding, subject to the terms of the Plan and this
Trust Agreement. The Trustee may withhold from amounts distributable to any
Person any and all amounts, determined in the Trustee's reasonable sole
discretion, to be required by any law, regulation, rule, ruling, directive or
other governmental requirement. Notwithstanding the foregoing, any distributions
to be made on account of the separate classes of Preferred Equity Trust
Interests shall be made in the following order of priority with respect to the
separate classes of Exchanged Preferred Equity Interests contributed: (1) Series
1 Exchange Preferred Stock and Series 2 Exchange Preferred Stock on a pari passu
basis; (2) then Series 3 Exchange Preferred
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Stock; and (3) then Series 4 Exchange Preferred Stock. Notwithstanding the
forgoing, in no event shall any holder of Preferred Equity Trust Interests
receive a distribution of Exchanged Enron Preferred Stock.
(a) Manner of Payment or Distribution. All distributions made by
the Trustee to holders of Preferred Equity Trust Interests shall be payable to
the holders of the Preferred Equity Trust Interests of record as of the
fifteenth (15th) day prior to the date scheduled for the distribution, unless
such day is not a Business Day, in which case such day shall be the following
Business Day. If the distribution shall be in Cash the Trustee shall distribute
such Cash by wire, check or such other method as the Trustee deems appropriate
under the circumstances.
(b) Delivery of Trust Distributions. All distributions under this
Trust Agreement to any holder of Preferred Equity Trust Interests shall be made
at the address of such holder as set forth in the register or at such other
address as such holder of Preferred Equity Trust Interests shall have specified
for payment purposes in a written notice to the Trustee at least twenty (20)
days prior to such distribution date. In the event that any distribution to any
holder is returned as undeliverable, the Trustee shall use reasonable efforts to
determine the current address of such holder, but no distribution to such holder
shall be made unless and until the Trustee has determined the then current
address of such holder, at which time such distribution shall be made to such
holder without interest; provided, however, that such undeliverable or unclaimed
distributions shall be deemed unclaimed property at the expiration of one year
from the date of distribution. The Trustee shall reallocate all undeliverable
and unclaimed distributions for the benefit of all other Beneficiaries.
3.2 Reporting Duties of the Trustee.
(a) Subject to definitive guidance from the IRS or a court of
competent jurisdiction to the contrary (including the receipt by the Trustee of
a private letter ruling if the Trustee (or the Debtors) so requests one, or the
receipt of an adverse determination by the IRS upon audit if not contested by
the Trustee), the Trustee shall file returns for the Trust as a grantor trust
(consisting of separate shares for each class of Exchanged Enron Preferred Stock
owned by the Trust) pursuant to Treasury Regulation Section 1.671-4(a) and in
accordance with Section 27.7(a) of the Plan. The Trustee shall also annually
send to each record holder of Preferred Equity Trust Interests a separate
statement setting forth the holder's share of items of income, gain, loss,
deduction, or credit and shall instruct all such holders to report such items on
their federal income tax returns or to forward the appropriate information to
the holders of Preferred Equity Trust Interests with instructions to report such
items on their federal income tax returns.
(b) Allocations of Trust taxable income shall be determined by
reference to the manner in which an amount of cash equal to such taxable income
would be distributed (without regard to any restrictions on distributions
described herein) if, immediately prior to such deemed distribution, the Trust
had distributed all of its other assets (valued for this purpose at their tax
book value) to the holders of the Preferred Equity Trust Interests (treating any
holder of a Disputed Equity Interest, for this purpose, as a current holder of a
Preferred Equity Trust Interest entitled to distributions), taking into account
all prior and concurrent distributions from the Trust (including all
distributions held in escrow pending the resolution of Ownership Disputes and
Disputed Claims). Similarly, taxable loss of the Trust shall be allocated by
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reference to the manner in which an economic loss would be borne immediately
after a liquidating distribution of the remaining Trust Assets. The tax book
value of the Trust Assets for this purpose shall equal their fair market value
on the date the Trust was created or, if later, the date such assets were
acquired by the Trust, adjusted in either case in accordance with tax accounting
principles prescribed by the IRC, the Treasury Regulations and other applicable
administrative and judicial authorities and pronouncements.
(c) The Trustee shall file (or cause to be filed) any other
statements, returns or disclosures relating to the Trust that are required by
any governmental unit.
3.3 Termination of Trust. The Trust shall terminate on the earlier of:
(i) thirty (30) days after the final distribution of all of the Preferred
Proceeds in accordance with the terms of this Trust Agreement, the Plan and the
Confirmation Order and the cancellation of the Exchanged Enron Preferred Stock
and (ii) the third (3rd) anniversary of the Confirmation Date; provided,
however, that, on or prior to the date three (3) months prior to such
termination, the Bankruptcy Court, upon motion by a party in interest on notice
with an opportunity for a hearing, may extend the maximum term of the Trust set
forth in this clause (ii) if it is necessary to the liquidation of the assets of
the Trust. Notwithstanding the foregoing, multiple extensions of the maximum
term of the trust set forth in clause (ii) of this Section can be obtained so
long as Bankruptcy Court approval is obtained (in accordance with the procedures
set forth in the preceding sentence) at least three (3) months prior to the
expiration of each extended term; provided, however, that the aggregate of all
such extensions shall not exceed three (3) years from and after the third (3rd)
anniversary of the Confirmation Date. In any event, upon the termination of the
Trust all of the Exchanged Enron Preferred Stock shall be canceled and otherwise
void.
3.4 Continuance of Trust for Winding Up. After the termination of the
Trust and solely for the purpose of liquidating and winding up the affairs of
the Trust, the Trustee shall continue to act as such until its duties have been
fully performed. At such time, to the extent that any funds remain in the Trust
that were provided to the Trustee by the Debtors to cover trust expenses, such
funds shall be transferred to the Reorganized Debtor Plan Administrator for the
purpose of distributing such funds to the Debtors in accordance with the Plan.
Upon distribution of all Trust Assets, which shall not include a distribution of
the Exchanged Enron Preferred Stock to the holders of Preferred Equity Trust
Interests, the Trustee shall retain the books, beneficiary lists, registers,
records and files which shall have been delivered to or created by the Trustee.
At the Trustee's discretion, all of such records and documents may be destroyed
in accordance with Section 3.7. Except as otherwise specifically provided
herein, upon the distribution of all Trust Assets, the Trustee shall have no
further duties or obligations hereunder except the obligations under Section 3.7
hereof.
3.5 General Powers of the Trustee. In connection with the administration
of the Trust, except as set forth in this Trust Agreement, the Trustee is
authorized to perform any and all acts necessary or desirable to accomplish the
purposes of the Trust. Without limiting, but subject to, the foregoing and to
Section 3.6 hereof, the Trustee shall be expressly authorized to:
(a) hold legal title to any and all rights of the holders of the
Preferred Equity Trust Interests in or arising from the Trust Assets, including,
but not limited to, voting the
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Exchanged Enron Preferred Stock (subject to Section 3.10), collecting any and
all money and other property belonging to the Trust, and voting any claim or
interest in a case under the Bankruptcy Code and receiving any distribution
therein;
(b) perform the duties, exercise the powers, and assert the rights
of a trustee under sections 704 and 1106 of the Bankruptcy Code;
(c) protect and enforce the rights to the Trust Assets by any
method deemed appropriate including, without limitation, by judicial proceedings
or pursuant to any applicable bankruptcy, insolvency, moratorium, or similar law
and general principles of equity;
(d) compromise, adjust, arbitrate, sue on or defend, pursue,
prosecute abandon, or otherwise deal with and settle any cause of action or
Ownership Dispute in favor of or against the Trust as the Trustee shall deem
advisable;
(e) determine and satisfy any and all liabilities created,
incurred or assumed by the Trust;
(f) file, if necessary, any and all tax and information returns
with respect to the Trust and pay taxes properly payable by the Trust, if any;
(g) execute offsets against claims as provided for in the Plan;
(h) assert or waive any Privileges or defense on behalf of the
Trust;
(i) pay all expenses and make all other payments relating to the
Trust Assets;
(j) retain and pay such independent law firms as counsel to the
Trust as the Trustee may select to aid in the prosecution of any claims that
constitute the Trust Assets, and to perform such other functions as may be
appropriate. The Trustee may commit the Trust to and shall pay such independent
law firms reasonable compensation for services rendered and reasonable and
documented out-of-pocket expenses incurred. The Trustee may retain counsel on a
nunc pro tunc basis, to a date prior to the Effective Date. A law firm shall not
be disqualified from serving as independent counsel to the Trust solely because
of its prior retention by the Debtors, the Creditors' Committee, or a member of
the Creditors' Committee;
(k) retain and pay an independent public accounting firm to
perform such reviews and/or audits of the financial books and records of the
Trust as may be appropriate and to prepare and file any tax returns or
informational returns for the Trust as may be required. The Trustee may retain
an independent accounting firm on a nunc pro tunc basis, to a date prior to the
Effective Date. The Trustee may commit the Trust to and shall pay such
independent public accounting firm reasonable compensation for services rendered
and reasonable and documented out-of-pocket expenses incurred. An independent
public accounting firm shall not be disqualified from serving as independent
counsel to the Trust solely because of its prior retention by the Debtors, the
Creditors' Committee, or a member of the Creditors' Committee;
(l) retain and pay such third parties as the Trustee may deem
necessary or appropriate to assist the Trustee in carrying out its powers and
duties under this Trust
9
Agreement. The Trustee may commit the Trust to and shall pay all such persons or
entities reasonable compensation for services rendered and reasonable and
documented out-of-pocket expenses incurred, as well as commit the Trust to
indemnify any such parties in connection with the performance of services, on a
nunc pro tunc basis, to a date prior to the Effective Date;
(m) invest any moneys held as part of the Trust in accordance with
the terms of Section 4.4 hereof, limited, however, to such investments that are
consistent with the Trust's status as a liquidating trust within the meaning of
Treasury Regulation Section 301.7701-4(d) and in accordance with Rev. Proc.
94-45, 1994-2 C.B. 684;
(n) request any appropriate tax determination with respect to the
Trust, including, without limitation, a determination pursuant to section 505 of
the Bankruptcy Code;
(o) establish and maintain a web site for the purpose of providing
notice of Trust activities in lieu of sending written notice to holders of
Preferred Equity Trust Interests, subject to providing notice to those holders
referred to in Section 7.4 hereof;
(p) seek the examination of any entity under, and subject to, the
provisions of Bankruptcy Rule 2004; and
(q) take or refrain from taking any and all actions the Trustee
reasonably deems necessary for the continuation, protection, and maximization of
the Trust Assets consistent with the purposes hereof.
3.6 Limitation of Trustee's Authority.
(a) Notwithstanding anything herein to the contrary, the Trustee
shall not and shall not be authorized to engage in any trade or business or
sell, liquidate or otherwise transfer any Trust Assets, other than to distribute
Preferred Proceeds and perform such other activities pursuant to this Trust
Agreement. Notwithstanding any other authority granted by Sections 3.1, 3.5 and
4.4 hereof, the Trustee is not authorized to engage in any investments or
activities inconsistent with the treatment of the Trust as a liquidating trust
within the meaning of Treasury Regulation Section 301.7701-4(d) and in
accordance with Rev. Proc. 94-45, 1994-2 C.B. 684.
(b) The Trustee shall be restricted to receiving the Exchanged
Enron Preferred Stock, administering the Exchanged Enron Preferred Stock as
provided in Section 1.2, receiving the Preferred Proceeds, and investing and
reinvesting the Preferred Proceeds subject to the limitations provided in
Section 4.4, collecting income from the Trust Assets, and effecting the
distributions specified in Section 3.1 and specified elsewhere in this Trust
Agreement for the purposes of carrying out the terms of this Trust Agreement.
(c) Neither the Trustee nor any of its agents shall sell,
distribute or otherwise transfer the Exchanged Enron Preferred Stock.
3.7 Books and Records.
(a) The Trustee shall maintain in respect of the Trust and the
holders of Preferred Equity Trust Interests books and records relating to the
Trust Assets and income of the
10
Trust and the payment of expenses of, and liabilities of claims against or
assumed by, the Trust in such detail and for such period of time as may be
necessary to enable it to make full and proper accounting in respect thereof.
Such books and records shall be maintained as reasonably necessary to facilitate
compliance with the tax reporting requirements of the Trust. Nothing in this
Trust Agreement requires the Trustee to file any accounting with respect to the
administration of the Trust, or as a condition for managing any payment or
distribution out of the Trust Assets. Holders of the Preferred Equity Trust
Interests shall have the right upon five (5) Business Days' prior written notice
delivered to the Trustee to inspect such books and records (including financial
statements), provided that the Trustee, in a reasonable effort to preserve
Privileges or confidential information or protect litigation or other
strategies, may require such holder or such holder's authorized representatives
to enter into a confidentiality agreement satisfactory in form and substance to
the Trustee. Any books and records determined by the Trustee, in its sole
discretion, not to be reasonably necessary for administering the Trust or for
the Trustee's compliance with the provisions of this Trust Agreement may, to the
extent not prohibited by applicable law or order, be destroyed.
(b) Nothing contained in this Trust Agreement shall preclude the
Trustee from seeking a judicial settlement of its accounts.
3.8 Additional Powers. Except as otherwise set forth in this Trust
Agreement or in the Plan, and subject to the Treasury Regulations governing
Trusts and the retained jurisdiction of the Bankruptcy Court as provided for in
the Plan, but without prior or further authorization, the Trustee may control
and exercise authority over the Trust Assets and over the protection,
conservation and disposition thereof. No Person dealing with the Trust shall be
obligated to inquire into the authority of the Trustee in connection with the
protection, conservation or disposition of the Trust Assets.
3.9 Compliance with Laws. Any and all distributions of Preferred
Proceeds shall be in compliance with applicable laws, including, but not limited
to, applicable federal and state securities laws.
3.10 Voting of Shares. The Trustee shall vote the shares of the Exchanged
Enron Preferred Stock, (i) with regard to the removal of any director of Enron,
only as unanimously recommended by the other directors of Enron, and (ii) with
regard to all other matters, only as recommended by the Board of Directors of
Enron in a resolution passed in accordance with Enron's bylaws. No holder of
Preferred Equity Trust Interests shall be entitled to exercise any voting rights
associated with the Enron Exchanged Preferred Stock whatsoever (whether related
to the election of board members or otherwise), and all such rights shall be
vested in the Trustee. Notwithstanding anything to the contrary, the provisions
set forth in this Section 3.10 are irrevocable and may not be modified, amended,
or revoked by any holder of Preferred Equity Trust Interests or any other
Person.
11
ARTICLE IV
THE TRUSTEE
4.1 Generally. The Trustee's powers are exercisable solely in a
fiduciary capacity consistent with, and in furtherance of, the purposes of this
Trust and the Plan, except that the Trustee may deal with the Trust Assets
consisting solely of cash for its own account as permitted by Section 4.6
hereof.
4.2 Liability of Trustee and Indemnification.
(a) Indemnification of Trustee. To the fullest extent provided by
applicable law, the Trustee shall be indemnified by and receive reimbursement
from the Trust against and from any and all loss, liability, damage or
reasonable and documented out-of-pocket expense that the Trustee may incur or
sustain in the good faith exercise and performance of any of the powers and
duties of the Trustee under this Trust Agreement, except for that which results
from its own recklessness, gross negligence, willful misconduct, breach of
fiduciary duty or knowing violation of the law. The Trustee may receive advance
payments in connection with indemnification under this Section, provided that
prior to receiving any such advance, the Trustee shall first have given a
written undertaking to repay any amount advanced to it and to reimburse the
Trust in the event it is subsequently determined that it is not entitled to such
indemnification. The rights accruing to the Trustee by reason of the foregoing
shall not be deemed to exclude any other right to which it may legally be
entitled, nor shall anything else contained herein restrict the right of the
Trustee to contribution under applicable law.
(b) Indemnification for Taxes. To the fullest extent provided by
applicable law, the Trust shall indemnify the Trustee against and hold the
Trustee harmless from any and all liability for taxes assessable against the
Trust that have been assessed against the Trustee personally for the Trust
taxable year to which the return or audit or proceeding relates and for all
losses, costs, and reasonable and documented out-of-pocket expenses (including
reasonable and documented out-of-pocket legal and accounting fees and expenses)
incurred by the Trustee in defending against any assessment of taxes for such
year, except for that which results from its own recklessness, gross negligence,
willful misconduct, breach of fiduciary duty or knowing violation of law. The
Trust's obligations pursuant to this Section shall survive until the expiry of
the applicable statute of limitations. Nothing in this Section shall limit the
Trustee's entitlement to the benefit of the Trust Agreement's general reliance,
standard of care, exculpation, and indemnification provisions with respect to
taxes. All losses, claims, costs, reasonable and documented out-of-pocket
expenses and liabilities (including reasonable legal and accounting fees and
documented and out-of-pocket expenses) to be paid to the Trustee under this
Section shall be paid in accordance with, and subject to the limitations set
forth in, subsection (a) of this Section 4.2.
(c) Liability to Third Persons. The Debtors shall not be subject
to any personal liability whatsoever, in tort, contract or otherwise, to any
person in connection with the Trust or the affairs of the Trust, and no Trustee
or agent of the Trust shall be subject to any personal liability whatsoever, in
tort, contract or otherwise, to any person in connection with the Trust or the
affairs of this Trust, for actions or omissions taken or made in good faith, and
12
without such Person's own recklessness, gross negligence, willful misconduct,
breach of fiduciary duty or knowing violation of law; and except as otherwise
provided in this Trust Agreement, all such Persons shall look solely to the
Trust Assets consisting solely of Cash or Cash Equivalents for satisfaction of
claims of any nature arising in connection with affairs of the Trust.
(d) Nonliability of Trustee for Acts of Predecessors. Any
successor Trustee may accept and rely upon any accounting made by or on behalf
of any predecessor Trustee hereunder, and any statement or representation made
as to Trust Assets or as to any other fact bearing upon the prior administration
of the Trust, unless the successor Trustee believes such accounting, statement
or representation to be untrue. A Trustee shall not be liable for having
accepted and relied upon such accounting, statement or representation if it is
later proved to be incomplete, inaccurate or untrue. A Trustee or successor
Trustee shall not be liable for any act or omission of any predecessor Trustee,
nor have a duty to enforce any claims against any predecessor Trustee on account
of any such act or omission.
(e) Nonliability of Trustee for Acts of Others. Nothing contained
in this Trust Agreement shall be deemed to be an assumption by the Trustee of
any of the liabilities, obligations or duties of the Debtors, and shall not be
deemed to be or contain a covenant or agreement by the Trustee to assume or
accept any such liability, obligation or duty.
4.3 Reliance by Trustee. Except as otherwise provided in Section 4.2
hereof:
(a) the Trustee may rely, and shall be protected in acting upon,
any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties; and
(b) Persons dealing with the Trustee shall look only to the Trust
Assets consisting solely of Cash or Cash Equivalents to satisfy any liability
incurred by the Trustee to such person in carrying out the terms of this Trust
Agreement, and the Trustee shall have no personal obligation to satisfy any such
liability. Nothing in this subsection (b) of Section 4.3 shall be deemed to
permit the use of the Exchanged Enron Preferred Stock to satisfy such
liabilities.
4.4 Investment Powers. The right and power of the Trustee to invest
Trust Assets, the proceeds thereof, or any income earned by the Trust, shall be
limited to the right and power to invest such assets (pending periodic
distributions in accordance with Section 3.1) in Cash Equivalents; provided,
however, that the scope of any such permissible investments shall be limited to
include only those investments, or shall be expanded to include any additional
investments as the case may be, that a liquidating trust, within the meaning of
Treasury Regulation Section 301.7701-4(d) may be permitted to hold, pursuant to
the Treasury Regulations or any modification in the IRS guidelines, whether set
forth in IRS rulings, other IRS pronouncements or otherwise and provided,
further, that, under no circumstances shall the Trust segregate the Trust Assets
on the basis of classification of the holders of Preferred Equity Trust
Interests, other than with respect to distributions to be made on account of
Disputed Claims
13
and Disputed Equity Interests in accordance with the provisions of the Plan or
with respect to the separate classes of interests in the Trust referred to in
Section 2.1.
4.5 Requirement of Adequate Resources. Notwithstanding any other
provision of this Trust Agreement the Trustee shall not be required to take any
action or enter into or maintain any claim, demand, action or proceeding
relating to the Trust unless the Trustee shall have sufficient funds on hand for
that purpose.
4.6 Expense Reimbursement and Compensation.
(a) The Trustee may retain as much or all of the Trust Assets
consisting solely of Cash or Cash Equivalents including, without limitation,
Preferred Proceeds that would otherwise be payable to holders of Preferred
Equity Trust Interests pursuant to Section 3.1, as a reserve for the payment of
reasonable and documented out-of-pocket expenses (except those resulting from
its own gross negligence, recklessness, willful misconduct, breach of fiduciary
duty or knowing violation of law) incurred by the Trustee as a result of the
execution of its duties hereunder, including, but not limited to, reasonable and
documented out-of-pocket legal and accounting expenses, reasonable expenses
incurred or anticipated as a result of disbursements and payments made or to be
made by the Trustee, and reasonable compensation for agents, counsel or other
services rendered to the Trustee by third parties, and reasonable documented and
out-of-pocket expenses incident thereto, including taxes of any kind whatsoever,
and related interest and penalties, that may be levied or assessed under
existing or future laws of any jurisdiction upon or in respect of the Trust or
the Trust Assets.
4.7 No Bond. Neither the Trustee nor any successor Trustee shall be
obliged to file or furnish any bond or surety for the performance of its duties,
unless otherwise ordered by a court of competent jurisdiction, and, if so
ordered, all costs and expenses of providing such bond or surety shall be paid
or reimbursed pursuant to Section 4.6 hereof.
ARTICLE V
SUCCESSOR TRUSTEE
5.1 Removal. The Trustee may be removed by the Bankruptcy Court. Such
removal shall become effective on the date such action is taken by the
Bankruptcy Court.
5.2 Resignation. The Trustee may resign by giving not less than ninety
(90) days' prior written notice thereof to the Bankruptcy Court. Such
resignation shall become effective on the later to occur of: (i) the day
specified in such notice; or (ii) the appointment of a successor by the
Bankruptcy Court and the acceptance by such successor of such appointment.
5.3 Simultaneous Removal and Resignation. To the extent that the Trustee
is removed pursuant to the terms specified in Section 5.1 above (a "Removal") or
the Trustee resigns pursuant to the terms specified in Section 5.2 above (a
"Resignation"), and the Trustee is then serving in any other capacity for or on
behalf of any of the Reorganized Debtors or any of their Affiliates or is
serving as Reorganized Debtor Plan Administrator, Disbursing Agent or as trustee
of any other trust formed pursuant to the Plan (service by the Reorganized
Debtor Plan Administrator in each such additional capacity, a "Responsibility"
and collectively, the
14
"Responsibilities"), the Trustee shall be deemed to be terminated (for all
purposes and without any further action) from each of its other Responsibilities
upon its Removal or Resignation.
5.4 Appointment of Successor Trustee. In the event of the death (in the
case of a Trustee that is a natural person), dissolution (in the case of a
Trustee that is not a natural person), resignation pursuant to Section 5.2
hereof, incompetency, or removal of the Trustee pursuant to Section 5.1 hereof,
a successor trustee shall be appointed by Enron with the approval of the
Bankruptcy Court upon entry of an order after an opportunity for hearing. Such
appointment shall specify the date on which such appointment shall be effective.
Every successor Trustee appointed hereunder shall execute, acknowledge, and
deliver to the Bankruptcy Court and to the retiring Trustee an instrument
accepting the appointment under this Trust Agreement and agreeing to be bound
thereto, and thereupon the successor Trustee, without any further act, deed, or
conveyance, shall become vested with all rights, powers, trusts, and duties of
the retiring Trustee; provided, however, that a removed or resigning Trustee
shall, nevertheless, when requested in writing by the successor Trustee, execute
and deliver an instrument or instruments conveying and transferring to such
successor Trustee under the Trust all the estates, properties, rights, powers,
and trusts of such predecessor Trustee.
ARTICLE VI
REPORTS TO BENEFICIARIES
6.1 Reports. As soon as practicable, the Trustee shall post on a website
to which the Beneficiaries have access, and, while the Debtors' bankruptcy cases
remain open, file with the Bankruptcy Court, reports setting forth in reasonable
detail any material event or change that occurs with respect to the Trust,
which, to the knowledge of the Trustee, affects the Beneficiaries hereunder,
which reports shall not be required to be audited or in compliance with
generally accepted accounting principles.
ARTICLE VII
AMENDMENT AND WAIVER
7.1 Amendment and Waiver. Any substantive provision of this Trust
Agreement may be amended or waived by the Trustee, upon notice to those holders
referred to in Section 8.4 hereof, with the approval of the Bankruptcy Court
upon notice and an opportunity for a hearing; provided, however, technical
amendments to this Trust Agreement may be made, as necessary to clarify this
Trust Agreement or enable the Trustee to effectuate the terms of this Trust
Agreement, by the Trustee without Bankruptcy Court approval and without notice
to the Beneficiaries so long as notice has been filed with the Bankruptcy Court
with such technical amendment attached thereto. Notwithstanding this Section
7.1, any waiver or amendments to this Trust Agreement shall not: (i) be
inconsistent with the purpose and intention of the Trust to liquidate in an
expeditious but orderly manner the Trust Assets in accordance with Treasury
Regulation Section 301.7701-4(d); (ii) permit any distribution or other transfer
by the Trust of the Exchanged Enron Preferred Stock; (iii) permit any transfer
of the Preferred Equity Trust Interests other than in accordance with Section
2.3 hereof; or (iv) permit any amendment or waiver of this Section 7.1.
Additionally, no change may be made to this Trust Agreement that
15
would be inconsistent with the purpose and intention of the Trust as specified
herein and in the Plan, adversely affect the distributions to be made under this
Trust Agreement to any of the Beneficiaries, adversely affect the U.S. Federal
income tax status of the Trust as a "liquidating trust" or adversely affect the
rights of the Creditors' Committee or the ENA Examiner under the Plan or this
Trust Agreement.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1 Intention of Parties to Establish Trust. This Trust Agreement is
intended to create a trust for federal income tax purposes and, to the extent
provided by law, shall be governed and construed in all respects as such a trust
and any ambiguity herein shall be construed consistent herewith and, if
necessary, this Trust Agreement may be amended to comply with such federal
income tax laws, which amendments may apply retroactively.
8.2 Laws as to Construction/Jurisdiction. This Trust Agreement shall be
governed and construed in accordance with the laws of the State of New York,
without giving effect to rules governing the conflict of laws. Without limiting
any Person or Entity's right to appeal any order of the Bankruptcy Court or to
seek withdrawal of the reference with regard to any matter, (i) the Bankruptcy
Court shall retain exclusive jurisdiction to enforce the terms of this Trust
Agreement and to decide any claims or disputes which may arise or result from,
or be connected with, this Trust Agreement, any breach or default hereunder, or
the transactions contemplated hereby, and (ii) any and all actions related to
the foregoing shall be filed and maintained only in the Bankruptcy Court, and
the parties, including the members of the Creditors' Committee, hereby consent
to and submit to the exclusive jurisdiction and venue of the Bankruptcy Court.
8.3 Severability. If any provision of this Trust Agreement or the
application thereof to any Person or circumstance shall be finally determined by
a court of competent jurisdiction to be invalid or unenforceable to any extent,
the remainder of this Trust Agreement, or the application of such provision to
Persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and such provision of this Trust
Agreement shall be valid and enforced to the fullest extent permitted by law.
8.4 Notices. Any notice or other communication hereunder shall be in
writing and shall be deemed to have been sufficiently given, for all purposes,
if personally delivered or sent by mail, postage prepaid, or by telecopy
addressed to the person for whom such notice is intended as follows (or such
other address as may be designated by notice given in accordance with this
Section):
If to the Trustee: Stephen Forbes Cooper, LLC
900 Third Avenue
New York, New York 10022
Telephone: (212) 213-5555
Telecopier: (212) 213-1749
Attn: Stephen F. Cooper
16
with copies to: Kroll Zolfo Cooper LLC
900 Third Avenue
New York, New York 10022
Telephone: (212) 213-5555
Telecopier: (212) 213-1749
If to the Debtors: c/o Enron Corp.
1221 Lamar, Suite 1600
Houston, Texas 77010-1221
Attn: Reorganized Debtor Plan Administrator
Telephone: (713)853-6161
Telecopier: (713) 853-3129
If to a holder of Preferred Equity Trust Interests:
To the name and address set forth on the registry
maintained by the Trustee.
8.5 Fiscal Year. The fiscal year of the Trust will begin on the first
day of January and end on the last day of December of each year.
8.6 Prevailing Party. If the Trustee or the Trust, as the case may be,
is the prevailing party in a dispute regarding the provisions of this Trust
Agreement or the enforcement thereof, the Trustee or the Trust, as the case may
be, shall be entitled to collect any and all costs, reasonable and documented
out-of-pocket expenses and fees, including attorneys' fees, from the
non-prevailing party incurred in connection with such dispute or enforcement
action. To the extent that the Trust has advanced such amounts, the Trust may
recover such amounts from the non-prevailing party.
8.7 Counterparts. This Trust Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original instrument, but
all together shall constitute one agreement.
8.8 Entire Agreement. This Trust Agreement (including the recitals), the
Plan, and the Confirmation Order constitute the entire agreement by and among
the parties hereto regarding the subject matter hereof and there are no
representations, warranties, covenants or obligations regarding the subject
matter hereof except as set forth herein or therein. This Trust Agreement, the
Plan and the Confirmation Order supersede all prior and contemporaneous
agreements, understandings, negotiations, discussions, written or oral, of the
parties hereto, relating to any transaction contemplated hereunder. Except as
otherwise specifically provided herein, in the Plan or in the Confirmation
Order, nothing in this Trust Agreement is intended or shall be construed to
confer upon or to give any person other than the parties thereto and their
respective heirs, administrators, executors, successors, or assigns any right to
remedies under or by reason of this Trust Agreement.
8.9 Confidentiality. Each predecessor Trustee and its representatives
and the representatives of the Trustee (each a "Covered Person") shall, during
the period that they serve in such capacity under this Trust Agreement and
following either the termination of this Trust
17
Agreement or such Covered Person's removal, incapacity, or resignation
hereunder, hold strictly confidential and not use for personal gain any
material, non-public information of or pertaining to any entity to which any of
the Trust Assets relates or of which it has become aware in its capacity (the
"Information"), except to the extent disclosure is required by applicable law,
order, regulation or legal process. In the event that any Covered Person is
requested or required (by oral questions, interrogatories, requests for
information or documents, subpoena, civil investigation, demand or similar legal
process) to disclose any Information, such Covered Person shall notify the
Trustee reasonably promptly (unless prohibited by law) so that the Trustee may
seek an appropriate protective order or other appropriate remedy or, in its
discretion, waive compliance with the terms of this Section (and if the Trustee
seeks such an order, the relevant Covered Person will provide cooperation as the
Trustee shall reasonably request). In the event that no such protective order or
other remedy is obtained, or that the Trustee waives compliance with the terms
of this Section and that any Covered Person is nonetheless legally compelled to
disclose the Information, the Covered Person will furnish only that portion of
the Information, which the Covered Person, advised by counsel, is legally
required and will give the Trustee written notice (unless prohibited by law) of
the Information to be disclosed as far in advance as practicable and exercise
all reasonable efforts to obtain reliable assurance that confidential treatment
will be accorded the Information.
8.10 Headings. The section headings contained in this Trust Agreement are
solely for convenience of reference and shall not affect the meaning or
interpretation of this Trust Agreement or of any term or provision hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
18
IN WITNESS WHEREOF, the parties hereto have either executed and
acknowledged this Trust Agreement, or caused it to be executed and acknowledged
on their behalf by their duly authorized officers all as of the date first above
written.
Enron Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Managing Director and Assistant
General Counsel
Enron Metals & Commodity Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron North America Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Power Marketing, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
19
PBOG Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: President
Smith Street Land Company
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: President
Enron Broadband Services, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Energy Services Operations, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Energy Marketing Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
20
Enron Energy Services, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Energy Services, LLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Transportation Services, LLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
BAM Lease Company
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
21
ENA Asset Holdings L.P.
By: Blue Heron I LLC, General Partner
By: Whitewing Associates L.P., Sole
Member
By: Egret I LLC, Managing Member
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Gas Liquids, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Global Markets LLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Net Works LLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Industrial Markets LLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
22
Operational Energy Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Engineering & Construction Company
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Engineering & Operational Services
Company
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Garden State Paper Company, LLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Palm Beach Development Company, L.L.C.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
23
Tenant Services, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Energy Information Solutions, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
EESO Merchant Investments, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Federal Solutions, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Freight Markets Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
24
Enron Broadband Services, L.P.
By: Enron Broadband Services, Inc.,
General Partner
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Energy Services North America, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron LNG Marketing LLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Calypso Pipeline, LLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Global LNG LLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
25
Enron International Fuel Management Company
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Natural Gas Marketing Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
ENA Upstream Company LLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Liquid Fuels, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron LNG Shipping Company
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Chairman
26
Enron Property & Services Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: President
Enron Capital & Trade Resources International
Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Communications Leasing Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
EnronWind Systems, LLC, f/k/a EREC
Subsidiary I, LLC and successor to
Enron Wind Systems Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
EnronWind Constructors LLC, f/k/a
EREC Subsidiary II, LLC and successor to
Enron Wind Constructors Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
27
Enron Wind Energy Systems LLC, f/k/a
EREC Subsidiary III, LLC and successor to
Enron Wind Energy Systems Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
EnronWind Maintenance LLC, f/k/a
EREC Subsidiary IV, LLC and successor to
Enron Wind Maintenance Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Wind LLC, f/k/a
EREC Subsidiary V, LLC and successor to
Enron Wind Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Intratex Gas Company
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
28
Enron Processing Properties, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Methanol Company
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Ventures Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
The New Energy Trading Company
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
EES Service Holdings, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
29
Enron Wind Development LLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
ZWHC LLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Zond Pacific, LLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Reserve Acquisition Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
EPC Estates Services, Inc., f/k/a
National Energy Production Corporation
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
30
Enron Power & Industrial Construction Company
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
NEPCO Power Procurement Company
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
NEPCO Services International, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Caribe Verde (SJG) Inc., f/k/a
San Juan Gas Company, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
EBF LLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
31
Zond Minnesota Construction Company LLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Fuels International, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
E Power Holdings Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: President
EFS Construction Management Services, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Management, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: President
32
Enron Expat Services, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: President
Artemis Associates, L.L.C.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Clinton Energy Management Services, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
LINGTEC Constructors L.P.
By: Enron Power Construction Company,
General Partner
By: /s/ K.Wade Cline
---------------------------------------
Name: Stephen D. Dowd
Title: President and Chief Executive
Officer
EGS New Ventures Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
33
Louisiana Gas Marketing Company
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Louisiana Resources Company
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
LGMI, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
LRCI, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Communications Group, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
34
EnRock Management, LLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
ECI-Texas, L.P.
By: Enron Broadband Services, Inc.,
General Partner
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
EnRock, L.P.
By: Enrock Management, LLC, General Partner
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
ECI-Nevada Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Alligator Alley Pipeline Company
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: President
35
Enron Wind Storm Lake ILLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
ECT Merchant Investments Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
EnronOnLine, LLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
St. Charles Development Company, L.L.C.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Calcasieu Development Company, L.L.C.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
36
Calvert City Power I, L.L.C.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron ACS, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
LOA, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron India LLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: President
Enron International Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: President
37
Enron International Holdings Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: President
Enron Middle East LLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: President
Enron WarpSpeed Services, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Modulus Technologies, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Telecommunications, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
38
DataSystems Group, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Risk Management & Trading Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Omicron Enterprises, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
EFS I, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
EFS II, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
39
EFS III, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
EFS V, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
EFS VI, L.P.
By: EFS IV, Inc., General Partner
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
EFS VII, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
EFS IX, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
40
EFS X, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
EFS XI, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
EFS XII, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
EFS XV, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
EFS XVII, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
41
Jovinole Associates
By: EFS I, Inc. and EFS XIII, Inc., it's
Partners
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
EFS Holdings, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Operations Services LLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: President
Green Power Partners I LLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
TLS Investors, L.L.C.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
42
ECT Securities Limited Partnership
By: ECT Securities GP Corp., General
Partner
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
ECT Securities LP Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
ECT Securities GP Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
KUCC Cleburne, LLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron International Asset Management Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: President
43
Enron Brazil Power Holdings XI Ltd.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Chairman
Enron Holding Company L.L.C.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: President
Enron Development Management Ltd.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Chairman
Enron International Korea Holdings Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: President
Enron Caribe VI Holdings Ltd.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Chairman
44
Enron International Asia Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: President
Enron Brazil Power Investments XI Ltd.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Chairman
Paulista Electrical Distribution, L.L.C.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: President
Enron Pipeline Construction Services Company
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Pipeline Services Company
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
45
Enron Trailblazer Pipeline Company
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Liquid Services Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Machine and Mechanical Services, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Commercial Finance Ltd.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Chairman
Enron Permian Gathering Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
46
Transwestern Gathering Company
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Gathering Company
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
EGP Fuels Company
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Asset Management Resources, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Brazil Power Holdings I Ltd.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Chairman
47
Enron do Brazil Holdings Ltd.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Chairman
Enron Wind Storm Lake II LLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Renewable Energy Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Acquisition III Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Wind Lake Benton LLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
48
Superior Construction Company
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
EFS IV, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
EFS VIII, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
EFS XIII, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Credit Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
49
Enron Power Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Richmond Power Enterprise, L.P.
By: Enron-Richmond Power Corp. and
Richmond Power Holdings, Inc.,
General Partners
By: /s/ K.Wade Cline
---------------------------------------
Name: Charles E. Schneider
Title: President and Chief Executive
Officer
ECT Strategic Value Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Development Funding Ltd.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Chairman
Atlantic Commercial Finance, Inc.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: President
50
The Protane Corporation
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: President
Enron Asia Pacific/Africa/China LLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: President
Enron Development Corp.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: President
ET Power 3 LLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: President
Nowa Sarzyna Holding B.V.
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Authorized Representative
51
Enron South America LLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: President
Enron Global Power & Pipelines LLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: President
Cabazon Power Partners LLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Cabazon Holdings LLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Caribbean Basin LLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: President
52
Victory Garden Power Partners ILLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Oswego Cogen Company, LLC
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Enron Equipment & Procurement Company
By: /s/ K.Wade Cline
---------------------------------------
Name: K. Wade Cline
Title: Vice President
Stephen Forbes Cooper, LLC, as Trustee
By: /s/ Stephen Forbes Copper
---------------------------------------
Name: Stephen Forbes Cooper
Title: Manager
53