Case No. 01-16034 (AJG), Jointly AdministeredUnited States Bankruptcy Court, S.D. New York
December 19, 2002
ORDER PURSUANT TO SECTION 363 OF THE BANKRUPTCY CODE AND FEDERAL RULE OF BANKRUPTCY PROCEDURE 9019 FOR APPROVAL OF SETTLEMENT AGREEMENT BETWEEN ENRON ENERGY SERVICES, INC. AND SBC SERVICES, INC. AND PACIFIC TELESIS GROUP
ARTHUR J. GONZALEZ, Bankruptcy Judge.
Upon consideration of the Motion dated November 18, 2002 (the “Motion”) of Enron Energy Services, Inc. (“EESI”) as debtor and debtor in possession, for an order pursuant to section 363 of chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) and Rule 9019 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”) for authority to approve the settlement agreement and release (the “Settlement Agreement”) between EESI, SBC Services, Inc. (“SBC”) and Pacific Telesis Group (“PacTel”), all as more fully set forth in 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 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 no other or further notice need be given; and the relief requested in the Motion being in the best interests of EESI and its estate 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 Agreement is fair and reasonable; and the Committee having requested that the word “Contracts” in the sixth line of Section 2.2(a) of the Settlement Agreement shall be deemed to be replaced with the word “contracts” and, that the phrase, “Contracts or under other applicable law” in the sixth line of Section 2.2(b) shall be deemed to be replaced with the phrase, “contracts or under other Applicable Law,” and such changes to the Settlement Agreement having been agreed to by EESI, SBC and PacTel, and after due deliberation and sufficient cause appearing therefor, it is
ORDERED that the Motion is granted; and it is further
ORDERED that the Settlement Agreement, the settlement of the claims as set forth in the Settlement Agreement, and the termination of the Electric Energy Contracts (as defined in the Motion) is authorized and approved pursuant to section 363 of the Bankruptcy Code and Bankruptcy Rule 9019; and it is further
ORDERED that EESI 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 or appropriate to consummate the Settlement Agreement and perform any and all obligations contemplated therein; and it is further
ORDERED that except to the extent required to repay the DIP Obligations[1] pursuant to and in accordance with the Final Order and the Documents, all proceeds received by EESI in connection with the transactions contemplated by the Settlement Agreement shall be retained by EESI and be neither disbursed nor used until the earlier to occur of (i) agreement by and between EESI and the Creditors’ Committee with respect to the release of such proceeds and (ii) further order of this Court; 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; and it is further
ORDERED that the word “Contracts” in the sixth line of Section 2.2(a) of the Settlement Agreement shall be deemed replaced with the word “contracts”; and, in the sixth line of Section 2.2(b), the phrase, “Contracts or under other applicable law” shall be deemed replaced with the phrase, “contracts or under other Applicable Law”; and it is further
ORDERED that the Settlement Agreement may be modified, amended or supplemented 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 Creditors’ Committee, which consent shall not be unreasonably withheld; and, provided, further, that any such modification, amendment or supplement shall not be material in nature or not change the economic substance of the settlement approved hereby.