Opinion
Case No. 01-16034 (AJG), Jointly Administered
April 11, 2002
AMENDED ORDER ESTABLISHING AND AUTHORIZING PROCEDURES FOR THE REJECTION OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES OF NONRESIDENTIAL REAL PROPERTY
Upon the Motion (the "Motion") of Enron Corp. and certain of its affiliated debtor entities (collectively, the "Debtors"), as debtors and debtors in possession, seeking entry of an order, pursuant to Section 105 of Title 11, United States Code (the "Bankruptcy Code") and Rule 9024 of the Federal Rules of Bankruptcy Procedure modifying the January 9, 2002 Order (the "Rejection Procedures Order") that established and authorized procedures for the rejection of certain unexpired leases of non-residential real property (the "Leases"), and other unexpired future contracts, swap agreements, unexpired equipment leases and other executory contracts (but excluding collective bargaining agreements and retirement plans) (the "Contracts"); and it appearing that the relief requested in the Motion is in the best interests of the Debtors, their estates and their creditors; and it appearing that the proposed modification of the Rejection Procedures Order is supported by the sound business judgment of the Debtors; and notice of the Motion having been given by the Debtors pursuant to and in accordance to the March 25, 2002 Order to Show Cause of the Court and no further notice of the relief requested in the Motion is required; and after due deliberation and cause appearing therefore; it is
Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Motion.
ORDERED, that the Motion be, and it is hereby granted, as set forth below; and it is further
ORDERED, that the Rejection Procedures Order and the Rejection Procedures be, and they hereby are, amended:
a. Any Lease or Contract deemed unnecessary and burdensome to the Debtors based upon the sound business judgment of the Debtors may be rejected upon the Debtors giving ten (10) business days written notice (the "Rejection Notice"), via regular mail to (i) the landlord or other non-Debtor party (and their counsel, if known) under the respective Lease or Contract and (ii) counsel for the Creditors' Committee. The notice will be substantially in the form of the Notice of Rejection annexed hereto as Exhibit A (the "Notice of Rejection"), shall include a copy of this Order, and shall be filed with the Bankruptcy Court by the Debtors contemporaneously with its service as provided for herein;
b. If an objection to a Notice of Rejection is filed by the landlord, other non-Debtor party or the Creditors' Committee, and served upon, and actually received by, counsel to the Debtors prior to the expiration of the ten (10) business day notice period (with a copy also served on counsel for the Creditors' Committee if it is not the objecting party), the Debtors shall seek a hearing to consider such objection at the Court's earliest convenience. If no objection is timely received, the applicable Lease or Contract shall be deemed rejected on the later of: (a) the date of the Notice of Rejection; (b) the date of the surrender of leased premises to the affected landlord (where applicable); and (c) if the Contract obligates the Debtor to schedule physical delivery of gas or power to an end-user, the date the counterparty's commodity service either reverts to utility sales service or switches to an alternate supplier, but in no event later than forty-five (45) days after the Date of Notice of Rejection;
c. If a timely objection to a Notice of Rejection is received, and the Court ultimately upholds the Debtors' determination to reject the applicable Lease or Contract, then the applicable Lease or Contract shall be deemed rejected as of the date determined by the Bankruptcy Court as set forth in any Order overruling such objection; and
d. Claims arising out of the rejection of Contracts and Leases must be filed with the Bankruptcy Court or any Court approved claims processing agent by the later of: (i) the deadline for filing proofs of claim established by this Court for the Debtors' cases or (ii) thirty (30) days after the effective date of rejection which shall be the later of: (a) the date of the rejection notice unless otherwise agreed, in writing by the Debtors and the counter-party to a particular Contract or Lease; (b) the date of the surrender of leased premises, if applicable; and (c) in the case where a timely objection has been filed, the date determined by the Bankruptcy Court as set forth in any Order overruling such objection;
and it is further,
ORDERED, that except as set forth herein, all of the other terms of the Rejection Procedures Order shall remain and continue in full force and effect.