Opinion
Case No. 01-16034 (AJG), Jointly Administered
December 30, 2003
Upon consideration of the motion dated December 12, 2003 (the "Motion") of Enron Corp. ("Enron") and Enron Power Marketing, Inc. ("EPMI") pursuant to Rule 9019 of the Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules") for approval of a Settlement Agreement and Mutual Release (the "Settlement Agreement") by and among Enron, EPMI, Enron Cash Company No. 5 ("CashCo V") Credit Lyonnais New York Bank ("CL"), Bank of Nova Scotia ("BNS"), Bayerische Landesbank Girozentrale ("BL"), Mizuho Global, Ltd. ("Mizuho"), KBC Bank N.V. ("KBC"), UFJ Bank Limited ("UFJ"), Metropolitan Life Insurance Company ("MLI"), Texas Life Insurance Company ("TLI"), Principal Life Insurance Company ("Principal") and Barclays Bank PLC, in its capacity as a Purchaser (as defined herein) and as agent and master swap counterparty ("Barclays" and, together with CL, BNS, BL, Mizuho, KBC, UFJ, MLI, TLI and Principal, the "Cash V Investors"), and State Street Bank and Trust Company of Connecticut, National Association (the "Trustee"); 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 of the relief requested herein having been given in accordance with this Court's Second Amended Case Management Order Establishing, Among Other Things, Noticing Electronic Procedures, Hearing Dates, Independent Website and Alternative Methods of Participation at Hearings, dated December 17, 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 and EPMI (collectively, the "Debtors") and their respective 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; and it is further
ORDERED that the Motion is granted in all respects; and it is further
ORDERED that the Settlement Agreement by and among the Debtors, the Cash V Investors, and the Trustee (collectively, the "Settlement Parties") is authorized and approved pursuant to Bankruptcy Rule 9019; 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 Settlement Parties in accordance with terms thereof without further order of the Court; provided, however, that, in connection therewith, the Settlement 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 the Court shall retain exclusive jurisdiction to (i) enforce and implement the terms and provisions of the Settlement Agreement, (ii) resolve any disputes arising under or in connection with the Settlement Agreement and any related documents, and (iii) interpret, implement, and enforce the provisions of this Order; and it is further
ORDERED that all distributions, assignments, and other actions provided for in the Settlement Agreement are authorized and shall be carried out in accordance therewith; and it is further
ORDERED that the proof(s) of claim (including those assigned claim numbers 10909 and 10910) filed against Enron and EPMI by or on behalf of any of the Cash V Investors, the Cash V Trust and the other holders of Notes and/or Certificates to the extent such proofs of claim relate to the Cash V Transactions, in the amount filed, as amended to include the amount of $256,313.88 due in connection with the termination of that certain ISDA master swap agreement dated June 30, 1997 between Barclays and Trustee, (the amounts evidenced by such proofs of claim, as amended, the "Claim Amount") shall not be released, discharged or otherwise waived; provided, however, that the Claim Amount is subject to pro rata reduction to the extent payments are made pursuant in Section 1.1(a)(i) and (ii) of the Cash V Settlement Agreement and are further subject to Enron's and EPMI's right to dispute such claims; provided, further, that any claim in excess of such Claim Amount shall be deemed immediately expunged without any further order of the Court; 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, and 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, distributions, releases, discharges and other actions contemplated in the Settlement Agreement be approved in its entirety; and it is further
ORDERED that any proceeds received by Enron, or any Enron affiliate, in connection with the Settlement Agreement (except amounts payable to or for the benefit of the Cash V Investors pursuant to the Settlement Agreement) shall be treated in all respects for purposes of Title IV of the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1301-1461 (2000), as if such proceeds were a separate non-debtor member of Debtor's controlled group, as defined under 29 U.S.C. § 1301 (a)(14), until any claim of the PBGC, if any, are satisfied or otherwise resolved upon the completion of a "standard termination" of the Enron Corp. Cash Balance Plan in accordance with the requirements under 29 U.S.C. § 1341 (b) and 29 C.F.R. Part 4041, Subparts A and B, or upon an order of the Court that PBGC's claims are fully satisfied (each, a "Trigger Event"). As soon as reasonably practicable following occurrence of the Trigger Event, Enron shall notify PBGC of the Trigger Event and that it has completed a standard termination of the Enron Corp. Cash Balance Plan. Furthermore, until the occurrence of the Trigger Event, any distribution of proceeds (other than those distributions contemplated by clauses (a) and (b) of the following paragraph) received by Enron, or any affiliate of Enron, shall not be used nor disbursed until further order of this Court; and it is further
ORDERED that except to the extent required to (a) repay the DIP Obligations (if any) pursuant to and in accordance with the DIP Order and the Documents, and (b) make payments to or for the benefit of the Cash V Investors pursuant to the Settlement Agreement, all proceeds received by the Debtors in connection with the Settlement Agreement shall be retained by the Debtor, and neither disbursed nor used until the earlier to occur of (i) following the occurrence of a Trigger Event, agreement by and between Enron and the Committee with respect to the release of such proceeds and (ii) further order of this Court; and it is further
Capitalized terms used in this paragraph and not defined herein or in the Motion shall have the meanings ascribed to them in the Order Authorizing, Pursuant to 11 U.S.C. § 105, 361, 362, 364(c)(1), 364(c)(2), 364(c)(3) and 364(d)(1), Amendment of DIP Credit Agreement to Provide for Extension of Post-Petition Financing, dated May 8, 2003.
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 stay of this Order provided by the Bankruptcy Rules 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.