Case No. 01-16034 (AJG), Jointly Administered
December 19, 2002
ORDER APPROVING SETTLEMENT AGREEMENT BETWEEN THE DEBTORS AND CMS MARKETING, SERVICES AND TRADING COMPANY
Upon consideration of the Motion Pursuant To Bankruptcy Rule 9019 And The Order Authorizing And Establishing Procedures For Settlement Of Terminated Safe Harbor Agreements, Entered In These Cases On May 30, 2002, For Approval of Settlement Agreement Between the Debtors and CMS Marketing, Services And Trading Company, dated December 6, 2002 (the "Motion"), and the Court having jurisdiction to consider the Motion and the relief requested therein pursuant to 28 U.S.C. § 157 and 1334; and it appearing that due and proper notice of the Motion and the relief requested herein having been given in accordance with this Court's Order Establishing And Authorizing Procedures For Settlement Of Terminated Safe Harbor Agreements, dated May 30, 2002 (the "Protocol Order") and with this Court's Amended Case Management Order Establishing, Among Other Things, Noticing Electronic Procedures, Hearing Dates, Independent Website and Alternative Methods of Participation at Hearings, dated February 26, 2002, and that no other or further notice need be given; and the relief requested in the Motion being in the best interests of Enron North America Corp., Enron Power Marketing, Inc., and Enron Energy Services, Inc. (collectively, the "Debtors") and their estates and creditors; and the Court having reviewed the Motion; and the Court having determined that the legal and factual bases set forth in the Motion establish just cause for the relief granted herein and that the settlement submitted for the Court's approval in the Motion is fair and reasonable, and after due deliberation and sufficient cause appearing therefor, it is
ORDERED that the Motion is granted in all respects, and it is further
ORDERED that the Settlement Agreement between the Debtors and CMS Marketing, Services And Trading Company is authorized and approved pursuant to the Protocol Order and Rule 9019 of the Federal Rules of Bankruptcy Procedure, and it is further
ORDERED that the Debtors are authorized to execute, deliver, implement and fully perform any and all obligations, instruments, documents and papers and to take any and all actions reasonably necessary to consummate the Settlement Agreement and perform any and all obligations contemplated therein, and it is further
ORDERED that the Settlement Agreement may be amended by the parties thereto in accordance with the terms thereof without further order of the Court; provided, however, that, in connection therewith, the parties shall obtain the prior written consent of the Official Committee of Unsecured Creditors of Enron Corp. et al. (the "Committee"), which consent shall not be unreasonably withheld; and, provided, further, that any such amendment shall neither be material in nature nor change the economic substance of the settlement approved hereby, and it is further
ORDERED that except to the extent required to repay the DIP Obligations1 pursuant to and in accordance with the Final Order and the Documents, all proceeds received by the Debtors in connection with the Settlement Agreement shall be retained by the Debtors and neither disbursed nor used until the earlier to occur of (i) agreement by and between the Debtors (S.D.N.Y. 2002)1 Capitalized terms used in this paragraph and not defined herein or in the Motion shall have the meanings ascribed to them in the Final Order Authorizing Debtors to Obtain Post-Petition and the Committee with respect to the release of such proceeds and (ii) further order of this Court; and it is further
ORDERED that neither this Order nor the Settlement Agreement determines any issues with respect to (1) the allocation of the consideration (whether in the form of payments, releases, or otherwise) received by the Debtors under the Settlement, or (2) any inter-Debtor claims with respect to the receipt or allocation of that consideration, all of which issues are expressly reserved for future determination by the Court; and it is further
ORDERED that the Court shall retain exclusive jurisdiction to (i) enforce and implement the terms and provisions of the Settlement Agreement, and (ii) resolve any disputes arising under or in connection with the Settlement Agreement and any related documents.
Furthermore, the Court shall retain exclusive jurisdiction to interpret, implement, and enforce the provisions of this Order, and it is further
ORDERED that the Contracts (as that term is defined in the Motion) have been terminated pursuant to the terms specified therein, and it is further
ORDERED that all objections to the Motion or the relief requested therein that have not been withdrawn, waived, or settled, and all reservations of rights included therein, are overruled on the merits. Those parties who did not object, or who withdrew their objections, to the Motion are deemed to have consented to the Motion, and it is further
ORDERED that the failure to specifically include any particular provisions of the Settlement Agreement in this Order shall not diminish or impair the effectiveness of such provisions, it being the intent of the Court that the Debtors' implementation of the transactions contemplated in the Settlement Agreement be approved in its entirety, and it is further Financing Pursuant to 11 U.S.C. § 105, 361, 362, 364(c)(2), 364(c)(3) and 364(d)(1) dated July 2, 2002 (the "Final Order").
ORDERED that the stay of this Order provided by the Bankruptcy Rules (including Bankruptcy Rule 6004) whether for ten (10) days or otherwise shall not be applicable to this Order, and this Order shall be effective and enforceable immediately upon entry.