Case No. 01-16034 (AJG), Jointly Administered.United States Bankruptcy Court, S.D. New York.
August 5, 2004
ORDER APPROVING SETTLEMENT AGREEMENT AMONG ENRON CAPITAL TRADE RESOURCES INTERNATIONAL CORP., BNP PARIBAS, BNP PARIBAS COMMODITY FUTURES LIMITED, AND BNP PARIBAS COMMODITY FUTURES, INC.
ARTHUR GONZALEZ, Bankruptcy Judge
Upon consideration of the Motion Pursuant To Bankruptcy Rule 9019 And The Order Authorizing And Establishing Amended Procedures For Settlement Of Terminated Safe Harbor Agreements, Entered In These Cases On July 15, 2003, For Approval of Settlement Agreement Among Enron Capital Trade Resources International Corp., BNP Paribas, BNP Paribas Commodity Futures Limited, and BNP Paribas Commodity Futures, Inc. dated July 26, 2004 (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 Amended Procedures For Settlement Of Terminated Safe Harbor Agreements, dated July 15, 2003 (the “Protocol Order”) and 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 Capital
Trade Resources International Corp. (the “Debtor”) and its estate and creditors; and the Court having
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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 and mutual release among the Debtor, BNP Paribas, BNP Paribas Commodity Futures Limited, and BNP Paribas Commodity Futures, Inc. (the “Settlement Agreement”) 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 Debtor is 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
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ORDERED that except to the extent required to repay the DIP Obligations[1] (if any) pursuant to and in accordance with the DIP Order and the Documents, all proceeds received by the Debtor in connection with the Settlement Agreement shall be retained by the Debtor and neither disbursed nor used until the earlier to occur of (i) agreement by and between the Debtor and the Committee with respect to the release of such proceeds and (ii) further order of this 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 defined in the Motion) have been terminated pursuant to the terms specified therein, and it is further
ORDERED all proofs of claim described on Exhibit A hereto, filed by or on behalf of BNP Paribas, BNP Paribas Commodity Futures Limited, and BNP Paribas Commodity Futures Inc. (collectively, the “Counterparty) in connection with the Contracts shall be deemed irrevocably withdrawn, with prejudice and expunged, and all claims set forth therein shall be disallowed in their entirety. With respect to claim number 23737, filed by BNP Paribas against Enron Corp., this proof of claim shall be amended and restated to state: “This Claim excludes any claims released pursuant to the terms of the Settlement Agreement and Mutual Release, dated as of July 26, 2004, by and between Enron Capital Trade Resources International Corp.,
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BNP Paribas, BNP Paribas Commodity Futures Limited, and BNP Paribas Commodity Futures, Inc.”
ORDERED that all liabilities scheduled by the Debtor on its Schedules of Financial Affairs in favor of the Counterparty in connection with the Contracts (the “Scheduled Liabilities) shall be deemed irrevocably withdrawn, with prejudice, and to the extent applicable expunged, and all Scheduled Liabilities of the Debtor owed to Counterparty shall be disallowed in their entirety. Notwithstanding the foregoing, the Scheduled Liabilities shall not include any liabilities related to proof of claim number 23737 filed by BNP Paribas against Enron Corp.
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
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.
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EXHIBIT A
Claim No. Debtor Counterparty POC Value Claim Status on (as filed) Settlement Effective Date
13181 ECTRIC BNP Paribas unliquidated expunged
13696 ECTRIC BNP Paribas unliquidated expunged Commodity Futures Limited
13697 ECTRIC BNP Paribas unliquidated expunged Commodity Futures, Inc.
13854 Enron BNP Paribas unliquidated expunged Corp.
23738 Enron BNP Paribas unliquidated expunged (formerly Corp. Commodity Futures 13852) Limited