Opinion
Case No. 01-16034 (AJG), Jointly Administered
December 5, 2003
Upon the motion dated November 24, 2003 (the "Motion"), of Enron Wind Systems, LLC ("EWS"), as debtor and debtor in possession (together with the other debtor cases jointly administered with Enron, the "Debtors"), for an order pursuant to section 365 of title 11 of the United States Code, 11 U.S.C. § 101 et seq. (the "Bankruptcy Code"), authorizing the assumption of that certain Transwind 115 kv TL Right of Way pursuant to that certain letter agreement between Southern California Edison Company ("Edison") and Zond Systems, Inc. n/k/a EWS, dated July 1, 1994 (the "Edison Easement"), a copy of which is attached to the Motion as Exhibit "A;" and the hearing on the Motion having been held before the Court on December 4, 2003; and the Court having jurisdiction to consider and determine the Motion in accordance with 28 U.S.C. § 1334; and due notice of the Motion having been provided, and it appearing that no other or further notice need be provided; and after due deliberation and sufficient cause appearing therefor;
All capitalized terms used, unless otherwise defined herein, shall have the meaning as defined in the Motion.
IT IS HEREBY FOUND AND DETERMINED:
A. The Court has jurisdiction to consider the Amended Motion and the relief requested therein pursuant to 28 U.S.C. § 157 and 1334.
B. As evidenced by the certificate of service filed with the Court, and based on the representations of counsel at the Sale Hearing, (A) proper, timely, adequate, and sufficient notice of the Motion has been provided in accordance with section 365 of the Bankruptcy Code and Bankruptcy Rules 2002, 6006, and 9013 and Rule 9013-1(c) of the Local Bankruptcy Rules for the Southern District of New York (the "Local Rules") to all interested persons and entities, including, but not limited to, (i) the Office of the United States Trustee; (ii) counsel for JP Morgan Chase and Citibank, N.A., the Debtor in Possession Lenders; (iii) counsel for the Official Committee of Unsecured Creditors appointed in the Debtors' chapter 11 cases (the "Creditors' Committee"); (iv) Edison; (v) counsel for the Employment-Related Issues Committee; (vi) counsel to any other statutory committee appointed in the Debtors' chapter 11 cases (the "Additional Committees"); (vii) the Examiner for Enron North America Corp.; (viii) the Examiner for Enron Corp.; (ix) any person, or counsel if retained, appointed pursuant to 28 U.S.C. § 1104; (x) all entities who had filed a notice of appearance and request for service of papers in these cases in accordance with Bankruptcy Rule 2002 and the Court's Second Amended Case Order Establishing, Among Other Things, Noticing Electronic Procedures, Hearing Dates, Independent Website and Alternative Methods of Participation at Hearings, dated December 17, 2002 (the "Case Management Order"); and (xi) all parties entitled thereto in accordance with Rules 2002, 6006, and 9013 of the Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules"), and Local Rule 9013-1(c) of the Local Rules; (B) such notice was good and sufficient and appropriate under the particular circumstances; and (C) no other or further notice of the Motion or this Order is required. The requirements of Rule 9013-1(b) of the Local Rules have been waived.
C. A reasonable opportunity to object or be heard with respect to the Motion and the relief requested therein and this Order has been afforded to all those parties listed in paragraph B above.
D. The relief sought in the Motion is in the best interests of EWS, its estate, creditors, and all parties in interest.
E. Notwithstanding the commencement of the chapter 11 case of EWS or for any reason, (i) the Edison Easement (a) is not in default, (b) has not been terminated under its terms or under applicable laws, (c) remains in full force and effect, (ii) no cure amounts are due in connection with the Edison Easement, and (iii) adequate assurance of future performance under the Edison Easement has been provided.
F. EWS has advanced sound and sufficient business justification, and it is a reasonable exercise of its business judgment, to assume and assign the Edison Easement to CPP.
G. Section 365 of the Bankruptcy Code has been complied with.
ACCORDINGLY, THE COURT HEREBY ORDERS THAT:
1. The findings of fact set forth above and the conclusions of law stated herein shall constitute the Court's findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052, made applicable to this proceeding pursuant to Bankruptcy Rule 9014. To the extent any finding of fact later shall be determined to be a conclusion of law, it shall be so deemed, and to the extent any conclusion of law later shall be determined to be a finding of fact, it shall be so deemed.
2. The Motion is granted in its entirety.
3. All parties in interest have had the opportunity to object to the relief requested in the Motion and to the extent that objections to the Motion or the relief requested therein, have not been withdrawn, waived, or settled, such objections 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 pursuant to section 363(f)(2) of the Bankruptcy Code.
4. EWS is hereby authorized to assume the Edison Easement pursuant to section 365(a) of the Bankruptcy Code.
5. EWS is hereby authorized to assign the Edison Easement to CPP.
6. To the extent applicable, the stay of this Order provided by the Bankruptcy Rules (including Bankruptcy Rule 6006) 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.
7. This Court shall retain jurisdiction to hear and determine all matters arising from the implementation of this Order.