EXHIBIT 1
Stipulation
EXHIBIT 2
Direction Letter
101
EXHIBIT J
FIDELITY CLAIMS SETTLEMENT
102
STIPULATION
This STI PULATI ON (this" Stipul ati on" )1 is made and entered into as of November 12, 2015 (the" Stipul ati on Effective Date' ) , by and among
the following parties
(s)
(i) Energy Future HoldingsCorp.,aTexas corporation ("EFH"); (ii) Energy Future I ntermedi Ede Hol di ng Company LLC (" E FI H "), a Del aware
I i mi ted I i abi I i ty company; and (i i i) EFI H F nance I nc. (" E F I H Fi nance;' and together wi th EFI H, the " E FI H Debtor d'), a Del aware corporati on
and a di rect, whol l y-owned subs di ary of EFI H; and
(t)
theundersgnedfundsandaccountsadvisedorsub-advisedbyRdelityManagement&ResearchCompanyoroneofitsaffiIiates(collectivel y,
"Fidelity").
EFH, EFIH, EFIH Fnanceand Fdel ity are each referred to herein asa°Party" and are collectively referred to herein as the" Parties?'
WH EREAS, on Apri 129, 2014 (the " Peti ti on Date' ) , EFH, the EFI H Debtors, and certain of thei r affi I i ates commenced chapter 11 cases i n the
United States Bankruptcy Court for the District of Delaware (the " Bankruptcy Court") by fi I i ng voluntary petitions for rel i ef under chapter 11 of title 11 of
the United States Code, 11 U.S.C. §§ 101-1532 ( the" Bankruptcy Codd'), which chapter 11 cases are being jointly administered and are captioned In re
Energy Future HoldingsCoro.. at al., Case No. 14-10979 (CSS) (the"Chapter 11 Cases');
WHEREAS, F del i ty holds (i ) clad ms (the" EFH L BO Note CI ai md' ) agai nst EFH ad sing out of (a) the 10.875% seni or notes due November 1,
2017 (the" E FH L BO Senior Noted' ) issued pursuant to that certain indenture (as amended and/or supplemented, the" EFH L BO Note indenture') darted as
of October 31, 2007 by and among EFH, as issuer, and Ameri can Stock Transfer & Trust Company, LLC, as indenture trustee (the" EFH NotesT r ustee" ), and
(b) the 11.250/6/12.00'/o toggl e notes due November 1, 2017 (the" EFH L BO Toggle Noted' and together with the EFH LBO Senior Notes, the" EFH LBO
Noted' ) issued pursuant to the EFH LBO Note Indenture, (ii) cl ai ms (the" EFH Legacy Note Claims?) agai nst EFH arising out of (a) the 5.55% Series P Notes
due November 15, 2014 (the" EFH L egacy Ser i es P Noted' ) issued pursuant to that certain indenture (as amended and/or supplemented, the" E F H Legacy
Ser i es P I ndentur e" ) dated as of November 1, 2004 by and among EFH, as issuer, and the EFH Notes Trustee, (b) the 6.50% Series Q Notes due November 15,
2024 (the" EFH Legacy Ser i es Q Noted' ) issued pursuant to that certain indenture (as amended and/or supplemented, the" EFH Legacy Ser i es Q
I ndentur d' ) dated as of November 1, 2004 by and among EFH, as issuer, and the EFH Notes Trustee, and (c) the 6.55% Seri es R Notes due November 15,
2034 (the" EFH Legacy Ser i es R Noted' and together wi th the EFH L egacy Seri es P Notes and the EFH Legacy Seri es Q Notes, the" EFH Legacy Noted')
issued pursuant to that certain indenture (as amended and/or supplemented, the" EFH Legacy Ser i es R I ndenturd' and together with the EFH Legacy Series
P Indenture and EFH Legacy SeriesQ Indenture, the" EFH Legacy Note Indentured') dated as of November 1, 2004 by and among EFH, as issuer, and the
EFH NotesTrustee; and (iii)claims (the" E FI H Second L i en Note CI ai md' and together with the EFH LBO Note CI ai ms and EFH Legacy Note Clad ms, the
1
Unlessotherwise indicated, capitalized terms used but not otherwisedefined herein havethe meaning ascri bed to such termsin the Plan, asdefined below,
and, if not defined therein, the PSA, as defi ned below.
103
"Fidelity Cl ai md' ) against the EFI H Debtors ad sing out of the 11.00% seni or secured second lien notes due October 1, 2021 and 11.75% seni or secured
second I i en notes due March 1, 2022 (the" E FI H Second Lien Notefl i ssued pursuant to that certain indenture (as amended and/or supplemented, the
" E FI H Second L i en Note I ndentu r ef' ) dated as of April 25, 2011 by and among the EFIH Debtors, as issuers, and Computershare Trust Company, N.A. and
Computershare Trust Company of Canada, assuccessor indenture trustee to The Bank of New York Mel Ion Trust Company, N.A. (the" EFI H Second Lien
NotesTrustee");
WHEREAS, on June 16, 2014 the EFIH Second Lien Notes Trustee fi l ed an adversary complaint against the EFIH Debtors, commenci ng the
adversary proceeding captioned ComputersfiareTrust Company, N.A. and ComputershareTrust Corrpany of Canada v. Energy Future Intermedi ate Holding
Conpany LLC and EFI H Finance, Inc., Adv. Pro. No. 14-50405 (CSS) (Bankr. D. Del.), seeking a declaration that the EFI H Debtors are obligated to pay
makewhol e cl ai ms i n connection with the EFIH Second Lien Notes, along with other contested amounts relating to i ndemnifi cati on obligations, professional
fees and interest;
WHEREAS, on or about October 24, 2014, the EFH NotesTrustee fi l ed proofs of cl ai m 6524-6943,7475,7476,7477,7478,7479,7480,7481
and 7482 in the Chapter 11 Cases on behalf of itself and all holders of EFH LBO Notes and EFH Legacy Notes, whereby it asserted claims for, among other
things, princi pal, prepeti ti on interest, postpetiti on interest at the default rate set forth in the EFH LBO Note Indenture and the EFH Legacy Note Indentures,
interest on interest, makeuvhol e and other applicable premiums and penal ti es, and certain fees and expenses;
WHEREAS, on or about October 24, 2014, the ER H Second Lien NotesTrustee fi l ed proofs of cI ai m 7486 and 7487 i n the Chapter 11 Cases on
behalf of itself and all holders of ERH Second Lien Notes, whereby it asserted clad msfor, among other things, principal, prepetition interest, postpetition
i nterest, and certai n fees and expenses, and reserved i ts ri ght to assert cl ai ms for any premi ums, postpeti ti on i nterest including ° Addi ti onal I nterest;' and
interest on overdue interest;
W H E REAS, on Apri 1 13, 2015, the EFI H Second Li en Notes Trustee fi l ed the Amended Conpl ai nt for Damages and Declaratory Rel i ef i n the
EFI H Second Li an Adversary Proceedi ng [Adv. D.I. 37], seeki ng, among other thi ngs, damages for a makewhol e premi um i n connecti on with the Debtors'
partial pay down of the EFIH Second Lien Notes on March 11, 2015;
W H E REAS, on September 11, 2015, the Debtors and certai n other parti es entered i nto that certai n Amended & Restated PI an Support
Agreement (the " PSA" ) setti ng forth the terms and condi ti ons on whi ch such parti es wi I I pu rsue the approval and consummarti on of the R an and the
Restructuring Transacti ons,
W H EREAS, on September 21, 2015, the Debtorsfi l ed i n the Chapter 11 Cases the Fi fth Amended Joi nt PI an of Reorgani zati on of Energy
Future Hot di ngs Corp., at al., Pursuant to Chapter 11 of the Bankruptcy Code [ D.I . 6122] (as may be amended f rom ti me to ti me, the " PI an"), whi ch provi des
that (i) EFH Legacy Note Cl ai ms and EFH LBONote Claims(both primary claimsat EFH and guaranty claimsat the EFIH Debtors) shall beallowed in an
amount equal to the sum of outstandi ng principal, accrued but unpaid prepetition I nteres<, and accrued postpetition interest at the Federal Judgment Rate, but
not including any M akewhol e Cl ai ms; and
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(ii) EFIH Second Li en Note CI ai ms shall be al I owed in an amount equed to the sum of outstanding pri nci pal, accrued but unpaid prepetiti on interest, accrued
postpeti ti on interest ( including Addi ti onal Interest and interest on interest) on such pri nci pal at the non-default contract rate set forth in the EFIH Second
Lien Note lndenturethroughtheEffective Date, andall reasonableanddocumentedfees,expensesandindemnificationclaimsowedundertheEFlHSecond
Lien Note Indenture, but not including any MakewholeClaims
WH EREAS, the Plan serves as the Debtors° objection to al I other cl aims asserted and amounts al I aged to be owed with respect to the EFH LBO
Notes, EFH Legacy Notesand EFIH Second Lien Notes;
WHEREAS, on October 7, 2015, the EFH Notes Trustee fi l ed a moti on for partied summary judgment in response to the Debtor^ objection with
respect to M akewhol e Cl af ms on the EFH Legacy Seri es Q Notes and EFH Legacy Seri es R Notes argui ng that payment of M akewhol e Cl ai ms i s compel l ed as
a matter of law by theapplicableindenturesand governing law;
WHEREAS, on October 14, 2015, the Debtors fi l ed the Obj ecti on of Energy Future Holdings Corp. to Proofs of Claim 6524-6733, 7477, 7478
and 7479 Fi led by Ameri can Stock Transfer & Trust Co. as Indenture Trustee for the EFH Legacy Notes (the " EFH Legacy Note Cl ai ms Obj ecti on" )[Dl.
6463], objecting to the EFH Legacy Note CI ai msto the extent they, among other thi ngs, (a) assert an entitlement to (i) make-whole premi ums,
(ii) postpeti ti on interest ( including default interest and interest on overdue i nterest payments), (iii) unamorti zed original i ssue di scount, (iv) al I eged
contractual damages i n excess of the unpai d principal balance and prepeti ti on interest and other amounts owi ng under the terms of the Legacy Notes thart
were accrued and unpaid asof the Petition Date, and (v) feesand expenses, including any right to indemnification from EFH or any other Debtor;
WHEREAS, on October 23, 2015, the Debtorsfi l ed the Obj ecti on of Energy Future Hot di ngs Corp. Et Al., to Proofs of Claim 7475, 7480, 7481
and 6874-6943 Filed by American Stock Transfer & Trust Co. as Indenture Trustee for the EFH LBO Notes (the " EFH LBO Note Clad ms Obj ecti on" )[Dl.
6596], objecting to the EFH LBO Notes to the extent they, among other thi ngs, (a) assert an entitlement to (i ) make-whole premi ums, (ii) postpetition interest
(including default interest and interest on overdue i nterest payments), (III) unamortized original i ssue di scount, and (b) assert cl ai ms agai nst the Debtors other
than EFH, asissuer, and Energy Future Competitive HoldingsCompany LLC and EFIH, asguarantors;
WHEREAS, on October 28, 2015, the EFH Notes Trustee fi l ed the Response of EFH Legacy Notes Trustee to Obj ecti on of Energy Future
Hal di ngs Corp. to Proofs of Claim 6524-6733, 7477, 7478 and 7479 Fi led by Arneri can sock Transfer & Trust Co. LLC as Indenture Trustee for EFH
Legacy Notes [ D.I . 6718], arguing that the EFH Legacy Note Clad ms Obj action and EFH LBO Note Cl ai ms Obj ecti on should be overrul ed; and
WHEREAS, EFH, the EFIH Debtors, Fidelity, and certain other parties i n interest in the Chapter 11 Cases have been engaged in good faith
negoti a0;i ons wi th each other regarding the di sputes wi th respect to the Fidelity CI ai ms, and the Parti es have reached agreement with each other wi th respect
to such di sputes on the terms and conditi ons set forth in thi s Sti pul ati on.
105
NOW, THEREFORE, inconsideration of the promises and the mutual covenants and agreements set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowl edged, each Party, intending to be legally bound, agrees as fol lows
Section 1.
EffectiveDateof Stipulation.
ThisStipulation shall beimmediately effectiveand binding on Fidelity upon thelast to occurof (a) execution and delivery by Fidelity tothe
other Partiesof asgnaturepagetothisStipulation and entry by Fidelity intothePSA, and (b) dismissal with prejudiceof theadvers3ry proceeding captioned
Avenue Capital Management II LP, et al., v. Fidelity Investments, Adv. Pro. No. 14-50797 (CSS) (Bankr. D. Del.), including any and al I pending appeals
related thereto (the"Fidelity Call Litigation"). Fortheavoidanceof doubt and purposesof clarity, in the event that the Fidelity Call Litigation isnot
di sni ssed wi th prq udi ce for any reason, then in that event F dd i ty's executi on of thi s Sti pul ati on shall be a nul I i ty, and Fidelity shall have no obligations
whatsoever in connection with this Sti pul ati on. Thi s Sti pul ati on shad I become effective and binding wi th respect to EFH and the EFI H Debtors upon the I ast
to occur of (a) entry by the Bankruptcy Courtof an order approving thisStipulation, and (b) dismissal with prq udiceof the Fdeaity Call Litigation.
Section 2.
Settl ement of Fi del ity Cl ai ms.
2.1 The EFH Legacy Note Cl ai ms hall d by F del i ty as of the date F del i ty executes thi s S[i put ati on wi I I be AI I owed i n an amount equal to the sum of (a) the
principal amount outstanding of the EFH Legacy Notes held by Rdelity, plusaccrued but unpsd prepetition interest, under theEFH Legacy Note lndentures,
and (b) postpetiti on i nterest at the Federal Judgment Rate through the effective date the Ran, but not i ncl udi ng, for the avoidance of doubt, any Makewhol e
Claims
2.2 The EFH LBO Note Cl ai ms hat d by R del ity as of the date R del i ty executes thi s Sti put ati on wi I I be Al I owed i n an amount equal to the sum of (a) the
principal amount outstanding of EFH LBONotes held by Fdelity, plusaccrued but unpaid prepetition interest, under theEFH LBO Note Indenture, and
(b) 57.5% of accrued but unpai d postpeti ti on i nterest at the non-defaul t contract rate set forth i n the EFH LBO Note Indenture through the effective date of
the R an, but not i ncl udi ng, for the avoi dance of doubt, any M akewhol e Cl ai ms I n addi ti on, F del ity shall I recei ve a consent fee equal to 2.5% of unps d
postpetition interest accrued at the non-defaul t contract rate set forth in the EFH LBO Note Indenturethrough th e eff ecti ve date of the Ran with respect to the
EFH L BO Note Cl ai ms hel d by F del i ty, whi ch consent fee shad I be (y) earned upon the I ast to occur of the effecti veness of thi s Sti pul ati on as to R del i ty and
the date the Bankruptcy Court enters an order approvi ng thi s Sti pul ati on and (z) payabl e upon the effective date of the R an, unl essthi s Stipulation has been
termi nated under secti on 3.1 hereof. For the avoi dance of doubt, F del i ty wi I I on] y be enti tl ed to a s ngl e recovery wi th respect to the EFH LBO Notes and
related guarantees
2.3 The EFI H Second Lien Note CI ai ms held by R del i ty as of the date Fidelity executesthi s 9ti pul ati on will be AI I owed in an amount equal to the sum of
(a) theprincipal amount outstanding of EFIH Second Lien Notesheld by Fidelity, plusaccrued but unpaid prepetition
106
interest thereon (including any Additional Interest and interest on interest, as appl i cabl e) at the applicable non-default contract rate set forth in, and
calculated in accordance with, the EFIH Second Lien Note Indenture and alI related agreements, as applicable, and (b) accrued but unpaid postpetition
interest (including any Additional Interest and interest on interest) on such principal at the non-default contract rate set forth in, and calculated in accordance
with, the EFIH Second Li en Note Indenture and all related agreements,as applicable, through the effective date of the Ran, but not I nd udi ng for the
avoi dance of doubt, any M akewhol e Cl ai ms.
2.41n exchangefor Fdelity'sagreements contained herei n and in the PSA, including thecommitment to purchase$500 million of New EFH Common Stock,
EFH shel l pay on the Effective Date of the R an al l reasonabl e and documented unpaid fees and expenses i ncurred by F del i ty i n connecti on W th these
Chapter 11 Cases i n an amount not to exceed $12 mi I I i on.
2.5 Al I At I owed EFH Legacy Note CI ai ms, At I owed EFH L BO Note Cl ai ms and At I owed EFI H Second Li en Note Cl ai ms hel d by F del i ty shal I be pal d i n
Cash on the Effecti ve Date of the R an. The Debtors wi I I not exerci se the opti on i n Arti cl e I 11, Secti on B(4)(c) of the R an to rei nstate EFH Legacy Seri es Q
Cl ai ms and EFH Legacy Seri es R Cl ai ms hd d by F del i ty. For the avoi dance of doubt, the commitments i n thi s Secti on 2.5 shad I apply only i n connect! on
wi th consummati on of the R an and shad I not bind the Debtors or any other party i n connecti on wi th any other restructuri ng transacti on, i rid udi ng, wi thout
I i mi tali on, any Al temati ve Restructuri ng (as defi ned i n the PSA).
Section 3.
Termination.
3.1 Thi s Sl:i pul all on shal I be automati cal ly terminated with respect to al I Parti es upon the occurrence of any of the fol I owi ng events (a) termi nail on of the
PSA by EFH or (b) the R an Support Termi nati on Date, as defi ned and set forth i n Secti on 11 of the PSA.
3.2 Upon termi nati on of thi s Sti pul all on wi th respect to a Party i n accordance wi th Secti on 3.1 hereof: (a) thi s Sti put all on shad I be of no further force and
effect with respect to such Party; (b) such Party subj ect to such termi nation shad I be rel eased from i tscommitments, undertaki ngs, and agreements under this
Stipulall on and shad l havetherightsthatitwouldhavehad,haditnotenteredintothisStipulation,andshall be entitledto take al l actionsthat it would have
been enti tl ed to take had i t not entered i nto thi s 9ti put ati on; and (c) the remai ni ng Parti es to thi s Sti pul ati on, i f any, shal I be rel eased from any commi tments,
undertaki ng, and agreements owed to such termi nated Party under thi s Sti put all on (i ncl udi ng Section 2 hereof).
Section 4.
4.1
Miscellaneous.
Compl ete Agreement.
Thi s Sti pul afti on constitutes the enti re agreement among the Parti es wi th respect to the subj ect matter hereof and supersedes and nul I I f i es ad I prior
agreements, oral or wri tten, among the Parti es wi th respect thereto; provi ded, for the avoi dance of doubt, the Parti es! agreements pursuant to the PSA shad I not
be affected by the Parti es' entry i nto thi s 9ti put ati on.
107
4.2
Governing Law: Jurisdiction: Waiverof Jury Trial.
(n)ThisSlipulationshall beconstruedandenforcedinaccordancewith,andtherightsofthePartiesshall begovemedby,thelawsoftheStateof
Delaware, without giving effect to theconflict of lawsprinciplesthereof. Each Party hereto agreesthat it shall bring any action or proceeding in respect of
any cl ai m arising out of or related to this Stipulation in the Uni ted States Bankruptcy Court for the Di strict of Del aware (the" Chosen Court"), and solely in
connection with daimsarisng underthisStipulation: (i) irrevocably submitstothe exclusvejurisdiction andtheauthority of theChosen Court; (ii) waives
any objection to laying venue i n any such action or proceedi ng in the Chosen Court; and (iii) waves any objection that the Chosen Court is an inconvenient
forum, doesnot havejurisdiction overany Party hereto, or lackstheconstitutional authority to enterfinal ordersin connection with such action or
proceeding.
(o) Each Party hereby waives, to thefullest extent permitted by applicablelaw, any right it may haveto atrial by jury in any legal proceeding
arising out of, or relating to, this Sti pul ati on or the transacti ons contempl ated hereby (whet her based on cont ract, tort, or any other theory). Each Party
(I) certifi esthat no representative, agent, or attorney of any other Party has represented, expressly or otherwise, that such other Party would not, in the event of
litigation, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other Parties have been i nduced to enter i nto this Sti pul ati on by, among
other things, the mutual wavers and certifications i n thi s Secti on 32.
4.3
Execution of Stipulation.
ThisStipulation may beexecuted and delivered in any numberof counterpartsand by way of electronic signatureand delivery, each such
counterpart, when executed and delivered, shall be deemed an original, and all of which together shal l constitute the same agreement. Each individual
executing thisStipulation on behalf of aParty hasbeen duly authorized and empoweredto executeand deliver this Stipulation on behalf of such Party.
4.4
Interpretation and Rulesof Construction.
This Sti pul ati on i sthe product of negoti all ons among the Parti es and in the enforcement or interpretation hereof, i sto be i nterpreted in a neutral
manner, and any presumption with regard to interpretation for or agai nst any Party by reason of that Party having drafted or caused to be drafted this
9ti pul ati on, or any portion hereof, shad] not be effecti ve i n regard to the interpretation hereof. The Parti es were each represented by counsel during the
negotiations and drafting of thi s Sti pul ati on and conti nue to be represented by counsel. I n addition, this Sti pul ati on shall be i nterpreted in accordance with
section 102 of the Bankruptcy Code.
4.5
Settlement Discussions,
This 9ti pul ati on and the transacti ons contempl ated herein are part of a proposed settlement among the Parti es Nothing herein shall be deemed
an admission of any kind. To the extent provided by Federal Rul e of Evi dence 408, all applicable mediation privileges, and any appl i cabl e state rul es of
evidence, this 9ti pul ati on and all negotiations relating thereto shad l not be admi ssi bl e into evi dence i n any proceeding other than a proceedi ng to enforce the
terms of thisSipulation.
108
4.6
SLccessorsandAssgns: No Third Party Beneficiaries
This Sti pul ati on is intended to bind and i nure to the benefit of the Parties and their respective successors and permitted asci gns, as appl i cable.
Except as otherwi se explicitly set forth herein, nothing in thi s Sti pul ati on is intended to benefit or create any right or cause of action in or on behalf of any
person other than the Parties hereto (and their afffi I i ated persons and entities who are! ntended to be benef i ci ari as of the rel eases and settlements set forth
herei n).
4.7
Notices
All notices hereunder shall be deemed given if in writing and delivered, if sent by electronic mail, courier, or registered orcertified mail (return
recei pt requested) to the fol l owl ng addresses (or at such other addresses as shad I be sped fi ed by I i ke noti ce):
(p)
i f to EFH or the EFI H Debtors, to:
Energy Future Hol di ngs Corp., at at.
Energy Plaza
1601 Bryan Street
Dal I as, Texas 75201
Attention: General Counsel
stacey.dore@energyfuturehol di ngscom
E-mai l addresses
andrew.wri ght @energyfuturehol di ngscom
with copies (which shad I not constitute notice) to:
Kirkland& EIIisLLP
601 Lexington Avenue
New York, New York 10022
Attention: Edward 0. Sassower, P.C., Stephen E. Hessler, and Bri an E. Schartz
E-mai I addresses:
[email protected]
[email protected]
[email protected]
and
Kirkland& EIIisLLP
300 North LaSal l e Street
Chicago, IL 60654
Attenti on: James H.M. Sprayregen, P.C., M arc Ki esel stei n, P.C., Chad J. Husni ck and Steven N. Seraj eddi ni
[email protected]
E-mail addresses:
marc.kieselstein @ki rkland.com
[email protected]
steven.seraj eddi ni @ki rkl and.com;
109
and
Cravath, 9wai ne and M oore LL P
Worldwide PI aza
825 Eighth Avenue
New York, NY 10019
Attenti on: Phi 11 p A. Gel ston
Email address
[email protected]
and
Jenner& Block LLP
919 Third Avenue
New York, NY 10022
Attenti on: Ri chard L evi n
Email address
[email protected]
(q)
iftoFdelity,to:
F del i ty Management & Research Company
82 Devonshire Street, # F6b
Boston, MA 02109
Attention: Nate Van Duzer and Daniel Chisholm
Email address
[email protected]
dani el.chi shol m @fmr.com
wi th copi es (whi ch shad I not consti tute noti ce) to:
Fried, Frank, Harris, Shriver& Jacobson LLP
One New York Plaza
New York, New York 10004
Attention: Brad Eric Scheler, Gary Kaplan, and Matthew Roose
E-mai l addresses
brad.eri c.schel erCfri edfrank.com
gary.kapl an @fri edfrank.com
matthew.roose@fri edfrank.com
or such other address as may have been fumi shed by a Party to each of the other Parti es by noti ce gi ven i n accordance wi th the requi rements set forth above.
Any noti ce given by del i very, mai I, or couri er she] I be eff ective when received.
4.8
Severability and Construction.
If any provi s on of thi s Sti pul ati on shal l be hel d by a court of competent j uri sdi cti on to be i l l egal, i nval i d, or unenforceabl e, the remai ni ng
prov i s ons shall I remai n i n ful l force and effect if essenti al terms and condi ti ons of thi s Sti pul ati on for each Party remai n val i d, bi ndi ng, and enforceabl e.
110
IN WITNESS WHEREOF, the Parties have caused thi s Stipulation to be executed and delivered by tha r respective duly authori zed offi cers,
solely in their respective capacity as officers of the undersigned and not in any other capacity, as of the date first set forth above.
[S gnature Pages Fol I ow]
EXHIBIT K
ORDER APPROVING FIDELITY CLAIMSSETTLEMENT
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
Chapter 11
In re:
ENERGY FUTURE HOLDINGSCORP., et al.,1
Debtors
)
Case No. 14-10979 (CSS7
)
(.bintly Administered)
ORDER APPROVING SETTLEMENT OF CLAIMS
HELD BY FIDELITY AND AUTHORI ZI NG DEBTORS
TO ENTER INTO AND PERFORM UNDER STIPULATION
Upon the motion (the" Motion")2 of the above-captioned debtors and debtors in possession (the" Debtord ' ) for entry of an order (this" Fidelity
Settlement Order" ), (a) approving the Stipulation, attached hereto as Exhibit 1, by and among (i) the Debtors and (ii) Fidelity M anagement & Research
Company on behalf of funds and accounts under management (col Iactively, "Rd it ") with respect to EFIH Legacy Note Claims held by Fidelity, EFH LBO
Note Claimsheld by Fidelity, and EFIH Second Lien Note Claims held by Fidelity; and (b) authorizing the Debtors to take any and ad I actions reasonably
necessary to consummate, and to perform any and all obligationscontemplated by theStipulation, ad I asmorefully set forth in the Motion; and the Court
having found that it hasj uri sdi cti on over this matter pursuant to 28 U.S.C. §§ 157 and 1334; and the Court having found that this is a core proceeding
pursuant to 28 U.SC. § 157(b)(2); and the Court having found that venue of this proceeding and the Motion in this district is proper pursuant to 28 U.S.C. §§
1408 and 1409; and the Court havi ng found that the
^ TheIastfourdigitsofEnergyFutureHoldingsCorp:staxidentificationnumberare8810.Thelocationofthedebtors^ serviceaddressis1601 Bryan
Street, Dal I as, Texas 75201. Due to the I arge number of debtors i n these chapter 11 cases, whi ch are bei ng j oi ntl y admi ni stered, a compl ate I i st of the
debtors and the I ast four di gi ts of thei r federal tax i denti fi cati on numbers i s not provided herea n. A compl ete I i st of such i nformati on may be obtai ned on
the webs te of the debtors' claims and noti ci ng agent at http://www.efhca9ei nfo.com.
2 At lcapital izedtermsusedbutnototherwisedefinedinthisRdditySettlementOrdersfiallhavethemeaningsascribedtothemintheMotion,andifnot
defi ned therei n, then i n the Sti pul ati on.
113
rel i ef requested in the Motion is in the best interests of the Debtors estates, their creditors, and other parties in interest; and the Court having found that the
Debtors provided appropri ate notice of the Motion and the opportunity for a hearing on the Motion under the circumstances; and the Court having reviewed
the Motion and having heard the statements in support of the rel i ef requested therein at a hearing, if any, before the Court (the" Hearing'); and the Court
having determined that the legal and factual bases set forth in the Motion and at the Hearing establish just cause for the rd i ef granted herein; and upon al I of
the proceedings had before the Court; and after due del i berarti on and suffi ci ent cause appeari ng therefor, it is HEREBY ORDERED THAT:
16.TheMotionisGRAfVTEDassetforthherein,andanyobjectionstotheMotionnotpreviousiywithdrawn,waivedorsettled,andall reservadionsof
rights included therein, are hereby ov errul ed with prejudice.
17. PUrsuant to Fed. R. Bankr. P. 9019(a), the Stipulation, atrue and correct copy of which isattached hereto as Exhibit 1, and the settlement and
compromises set forth therein are hereby approved in their entirety, and all of the terms of the Sti pul ati on are incorporated herein by reference and upon entry
of this Fidelity Settlement Order are f ul I y binding, effective, and enforceable as to each of the parti es to the Stipulation, and this F dd i ty Settlement Order
shall be fi nal , binding and effective on all parti es i n interest in the Debtors' Chapter 11 Cases (including any subsequently appointed chapter 11 or chapter 7
trustee).
18. The parti esto the Stipulation are authorized to execute, del i ver, implement, and fully perform any and ad l obl i gati ons, instruments, documents, and
papers and to take any and all actions reasonably necessary or appropri ate to consummate, complete, execute, and implement the Stipulation in accordance
with thetermsand conditi onsthereof and the Debtors (with, during the F1 an Support Effective Period, the consent of the Required Investor Parties) are
authorized,
without further order of the Court, to settle and compromise the EFH Legacy Note Clad ms and EFH LBO Note CI ai ms of holders other than Fidelity as of the
date of this order on terms that are the same or I essfavorabl e than those set forth in the Stipulation.
19. If the EFH NotesTrusteeacceptsthedirection letterissued to it by holders of the majority in aggregateprinci pal amount of the outstanding EFH
Legacy Notes with respect to the Ran, the EFH NotesTrustee shal I not have or incur any I i abi I ity for, and is released and exculpated from any cause of action
or any cl ai m related to any actor omission in connection with, relating to, ari s ng out of, or required under, the Sti pul ati on, this Fidelity Settlement Order,
and any other related documents or agreements
20. Notwithstanding the poss bl e applicability of Bankruptcy Rules 6004(h), 7062, 9014, or othenr 3i se, the temns and conditions of this Fidelity
Settlement Order shad I be effective and enforceabl e i mmedi atel y upon entry.
21. I n the event of any inconsistencies between this Fidelity Settlement Order, the Motion, and the Stipulation, this F del i ty Settlement Order sial I
govem in al I respects.
22. The Debtors are hereby authorized and empowered to take al I actions necessary to i mpl ement the rel i ef granted in this Fidelity Settlement Order.
23.TheCourtsiall retainjurisdictionoveranymatterordisputesarisngfromorrelatingtotheinterpretation,implementationorenforcementofthis
Fidelity Settlement Order.
Dated:
, 2015
The Honorabl e Christopher S. Sontchi
United States Bankruptcy Judge
EXHIBIT 1
Stipulation
1'16
EXHIBIT L
STIPULATI ON OF DISMISSAL
117
IN THE UNITED STATES DISTRICT COURT
FORTHE DISTRICT OF DELAWARE
I n re:
Case No. 14-10979 (CSS)
ENERGY FUTURE HOLDINGSCORP., et al.,
Chapter 11
Adv. Proc. No. 14-50797 (CSS)
Debtors.
AVENUE CAPITAL MANAGEM ENT II, LP, et al.,
Civil Action No. 15-00210 (LPS)
Red ntiffs/Appel I ants,
V.
FIDELITY INV ESTMENTS, et al.,
Defendants/Appel lees
ST I PUL AT I ON AND ORDE R OF DISMISSAL WITH PREJUDICE
PIJreJant to Rule 41 of the Federal Put as of Civi l Procedure and Rul e 8023 of the Federal RulesofBankruptcy Procedure, thePlaintiffs/Appellants and
the DefendantstAppel I ees, ba ng al I the partieswho have appeared i n the above-captioned acti on, by and through tha r counsel, sti put ate and agree as
fol Iows
1. The above-capti oned adversary proceedi ng (the "Adv ersary Proceedi nq" ), i ncl udi ng the appeal pendi ng i n this Court of the Order Di smi ss ng
Adversary Conpl al nt [Adv. Proc. D.I. 57], whi ch was entered i n the Adversary Proceedi ng on January 20, 2015 by the Honorabl e Chri stopher S. Sontchi (the
"ADOeal"), and ad I cl al ms asserted i n, rel ated to, or ad s ng from and i n connecti on wi th the Adversary Proceedi ng and Appeal are hereby vol untari I y
dismissed with prejudice; and
2. Each of the PI al ntiffs/Appel I ants and the Defendants/Appel I ass, respectively, shall I bear the r own costs and attorneys fees i ncurred i n connection
wi th the Adversary Proceedi ng and the Appeal.
118
STIPULATED AND AGREED:
John G. Harri s(DE No. 4071)
David B. Anthony (DE No. 5452)
BERGER HARRIS, LLP
1105 North Market Street, 11th Roor
Wilmington, DE 19801
Telephone: (302) 655-1140
Facsi mi l e: (302) 655-1131
j harri s@ bergerharri scorn
E-mai I:
danthony @bergerharri scorn
Tobey M ari e Dal uz (DE No. 3939)
Led i e C. Ha I man (DE No. 4716)
BALLARD SPAHR LLP
919 N. Market Street, 11th Floor
Wilmington, DE 19801
Telephone: (302) 252-4465
Facsi mi l e: (302) 252-4466
E-mail:
[email protected]
hei I mani @bal I ardspahr.com
and
and
Stephen Karotkin
Yehudah L. Buchweitz
W EI L, GOTSHAL & M ANGES L L P
767 Fifth Avenue
New York, New York 10153
Telephone: (212) 310-8000
Facsi mi l e: (212) 310-8007
E-mai l:
[email protected]
Yeh udah.buchwei tz@wd I.com
Bruce Bennett
JONES DAY
555 S. Flower Street, 50th R oor
Los Angeles, CA 90071
Telephone: (213) 243-2382
Facsi mi l e: (213) 243-2539
E-mai I : bbennett @jonesday.com
Counsel for Plaintiffs(Appellants
Gregory M. Shumaker
Chri stopher J. Di Pompeo
JONES DAY
Dated: November
2015
Wi I mi ngton, Del aware
and
51 Loui s ana Avenue, N.W.
Washington, D.C. 20001
Telephone: (202) 879-3939
Facsi mi l e: (202) 626-1700
E-mail:
[email protected]
cdi [email protected]
and
Traci L. Lovitt
JONES DAY
100 High Street, 21st Roor
Boston, MA 02110-1781
Telephone: (617) 960-3939
Facsi mi I a. (617) 449-6999
E-mail: [email protected]
Counsel for Del endantstAppel I ees
2015
Dated: November
Wi I mil ngton, Del aware
119
IT ISSD ORDERED, this
day of
The Honorable Leonard P. Stark
UNITED STATES DISTRICT JUDGE
120