Case No. 01-16034 (AJG), Jointly Administered.United States Bankruptcy Court, S.D. New York.
September 30, 2004
ORDER PURSUANT TO SECTIONS 105(a), 363, 365 AND 1146(c) OF THE BANKRUPTCY CODE AND RULES 6004, 6006 AND 9019 OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE AUTHORIZING AND APPROVING (A) A SETTLEMENT AGREEMENT AND MUTUAL RELEASE RELATING TO THE BAMMEL STRUCTURE; (B) THE TRANSFER OF CERTAIN ASSETS FREE AND CLEAR OF INTERESTS, LIENS, CLAIMS AND ENCUMBRANCES; AND (C) THE ASSUMPTION, ASSIGNMENT AND/OR REJECTION OF CERTAIN EXECUTORY CONTRACTS AND UNEXPIRED LEASES
ARTHUR GONZALEZ, Bankruptcy Judge
Upon the Motion dated April 28, 2004 (the “Motion”)[1] of Enron Corp. (“Enron”), Enron North America Corp. (“ENA”), ENA Asset Holdings L.P. (“ENA Asset Holdings”), and BAM Lease Company (“BAM”, and together with Enron, ENA and ENA Asset Holdings, the “Movants”) for an order pursuant to sections 105(a), 363, 365 and 1146(c) of title 11 of the United States Code, 11 U.S.C. §§ 101 et seq. (the “Bankruptcy Code”) and Rules 6004, 6006 and 9019
of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”) authorizing and approving (A) the Settlement Agreement and Mutual Release by and among the Movants and AEP Energy Services Gas Holding Company (“AEPGH”), Houston Pipe Line Company LP (“HPL”), HPL Resources Company LP (“HPLR”), AEP Energy Services, Inc. (“AEP Energy”), AEP Resources, Inc. (“AEP Resources”), and American Electric Power Company, Inc. (“American Electric”, and together with AEPGH, HPL, HPLR, AEP Energy and AEP
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Resources, the “AEP Parties”), dated April 28, 2004 (as modified by this Order, the “Settlement Agreement”); (B) the transfer of certain assets free and clear of all interests, liens, claims and encumbrances; and (C) the assumption, assignment and/or rejection of certain related executory contracts and unexpired leases; and upon the Objection dated May 28, 2004 (the “Objection”), filed by Bank of America, N.A. (“BofA”), as Administrative Agent for certain lenders, and the Bank of New York, as Trustee (the “Trustee” of the Bammel Gas Trust (the Trustee, BofA, and the lenders referred to in the preceding clause, together with their respective successors, transferees and assigns, are collectively referred to herein as the “BofA Entities”); and a hearing having been held to consider the Motion and relief requested therein; and it appearing that due and proper notice of the Motion and of the relief requested herein having been given, and that no other or further notice need be given; and the relief requested in the Motion, being in the best interests of the Movants and their respective estates and creditors; and the Court having reviewed the Motion, the exhibits thereto, and the Objection; and no other responses or objections having been filed; 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 submitted for the Court’s approval in the Motion and as modified by this Order[2] is fair and reasonable; and after due deliberation and sufficient cause appearing therefore;
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IT IS HEREBY FOUND AND DETERMINED THAT:
A. The Court has jurisdiction to consider the 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 hearing, proper, timely, adequate, and sufficient notice of the Motion and the terms of the Settlement Agreement has been provided in accordance with (A) the Court’s Second Amended Case Order, dated December 17, 2002, Bankruptcy Rule 9019 and Rule 9013-1(c) of the Local Bankruptcy Rules for the Southern District of New York (the “Local Rules”), including, but not limited to, (i) the Office of the United States Trustee, (ii) the Parties, (iii) all entities who had filed a notice of appearance and request for service of papers in the Bankruptcy Cases in accordance with the Court’s Second Amended Case Order, (iv) BofA, (v) the Trustee, (vi) the IRS, (vii) the Securities and Exchange Commission, and (viii) the Pension Benefit Guaranty Corporation (the “PBGC”); (B) such notice was good and sufficient and appropriate under the particular circumstances; and (C) no other or further notice of the Motion is required.
C. The requirements of Rule 9013-1(b) of the Local Rules have been waived.
D. 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 creditors and other parties in interest including, without limitation, those parties listed in paragraph B above.
E. The Settlement Agreement was negotiated at arm’s-length and proposed and entered into by and among the Parties without collusion and in good faith. The AEP Parties and the AEP Designees are good faith purchasers in accordance with section
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363(m) of the Bankruptcy Code and are entitled to all of the protections afforded thereby. Neither the AEP Parties, the AEP Designees nor the Movants have engaged in any conduct that would cause or permit the Settlement Agreement to be avoided (or the validity of the transfer of the Acquired Assets thereunder to be affected) under section 363(n) of the Bankruptcy Code or any other provisions of the Bankruptcy Code.
F. The Settlement Payment, covenants and releases set forth in the Settlement Agreement are and shall be deemed to constitute reasonably equivalent value and fair consideration for the Acquired Assets, the releases and other promises, covenants, representations and warranties of the Movants set forth in the Settlement Agreement.
G. To the extent that Osprey Trust claims or claimed any rights, title or interests including, without limitation, any ownership right, in or to any of the Acquired Assets by virtue of its interests in Whitewing Management LLC or Whitewing Associates LP or otherwise, such rights, title and interests were transferred to Enron, free and clear of all interests, liens, claims and encumbrances, and rights of setoff, deduction, netting and recoupment, pursuant to this Court’s Order Approving a Settlement Agreement Relating to the Whitewing Structure and the Security for the Osprey Notes, dated March 25, 2004, and as a result thereof, the Osprey Trust has no rights, title or interest in or to any of the Acquired Assets.
H. The predicates for the relief sought in the Motion pursuant to sections 105, 363, 365 and 1146(c) of the Bankruptcy Code and Bankruptcy Rules 6004, 6006 and 9019 have been satisfied.
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I. The failure to include specifically 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 Movants’ and the AEP Parties’ implementation of the transactions, distributions, releases, discharges and other actions contemplated in the Settlement Agreement be approved.
J. The relief sought in the Motion is in the best interests of the Movants, their respective estates, creditors, and all parties in interest.
K. None of the Assumed Contracts has been rejected or terminated prior to the date hereof.
L. The Movants are the only Persons (other than the AEP Parties) with any right, title or interest in and to the Acquired Assets.
M. The AEP Parties have furnished a report to Enron pursuant to the Right to Use Agreement, the accuracy of which the AEP Parties have certified, stating that there was at least 65.5 bcf of natural gas in the Bammel Storage Reservoir as of June 30, 2004.
N. All of the transactions contemplated by the Settlement Agreement are properly authorized under all applicable provisions of the Bankruptcy Code, including, without limitation, sections 105, 363, 365 and 1146 of the Bankruptcy Code. Enron and its subsidiary, Enron Networks LLC own all rights necessary to permit them to grant the license of the POPS Software to HPL on the terms set forth in the POPS Software License Agreement.
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
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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. All creditors and other parties in interest have had an 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, it being specifically understood that the Objection in its entirety has been resolved pursuant to this Order. The transfer of the Acquired Assets to the AEP Designees free and clear of any and all interests, Liens, and Liabilities (other than the Permitted Exceptions and the Assumed Liabilities) complies with section 363(f) of the Bankruptcy Code.
3. The Motion is granted as set forth in this Order.
4. The Settlement Agreement is approved pursuant to sections 105(a), 363, 365 and 1146(c) of the Bankruptcy Code and Bankruptcy Rule 9019. Upon entry of this Order, the Settlement Agreement shall be a legal, valid and binding agreement of and upon the Parties.
5. The Movants are, pursuant to sections 363, 365 and 1146(c) of the Bankruptcy Code and Bankruptcy Rule 9019, authorized and directed to perform all of their obligations pursuant to the Settlement Agreement and to execute such other documents and take such other actions as are necessary to effectuate the transactions contemplated by the Settlement Agreement, including, without limitation, to (i) assign, transfer, convey and deliver to the AEP Designees all of the Debtors’ current and future
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legal, equitable and beneficial right, title and interest in and to the Acquired Assets, free and clear of all interests and all Liens (other than Permitted Exceptions) and all Liabilities (other than the Assumed Liabilities); (ii) assume the Assumed Contracts; (iii) assume and assign each of the Prime Lease, the Sublease, and the Leased Facilities Consent to one or more AEP Designees; (iv) reject the POPS Software License Agreement and (v) enter into the new POPS Software License Agreement. Notwithstanding anything contained in the Motion, the Settlement Agreement or this Order to the contrary, the Cushion Gas Consent has not been, is not and will not be assumed, and the Movants have withdrawn that portion of the Motion in which they seek the assumption of the Cushion Gas Consent; provided, however,
that notwithstanding anything to the contrary in the Movants’ chapter 11 plan or any orders of this Court, the Cushion Gas Consent has not been and will not be rejected or terminated by reason of the confirmation or consummation of the Movants’ chapter 11 plan or any other order of this Court, and the rights and obligations of the parties thereunder have not been and will not be altered, amended, modified, abridged, terminated, or released by reason of any provision of the Movants’ chapter 11 Plan, the orders of this Court confirming such chapter 11 Plan, the Settlement Agreement, this Order, or any other prior order of the Court in these cases.
6. The Movants have demonstrated that it is an exercise of their sound business judgment to assign, transfer, convey and deliver the Acquired Assets to the AEP Designees in connection with the consummation of the transactions contemplated by the Settlement Agreement, and the assignment, transfer, conveyance and delivery of the Acquired Assets to the AEP Designees is in the best interests of the Movants, their chapter 11 estates, and creditors.
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7. The mutual release provisions of Article IV of the Settlement Agreement are approved, and the Movants are authorized to enter into such releases; provided, however, that the Parties’ rights to adjudicate the rejection of the Right to Use Agreement in accordance with Section 3.5 of the Settlement Agreement are not affected by the release provisions of Article IV of the Settlement Agreement or this Order.
8. In accordance with Sections 10.2, 10.3 and 10.4 of the Settlement Agreement, at the Closing the Parties shall deliver and/or file all applicable stipulations, payments, certificates, bills of sale, notices of withdrawal, assumption and assignment agreements and related documentation.
9. Pursuant to sections 105(a), 363 and 365 of the Bankruptcy Code, the transfer of the Acquired Assets to the AEP Designees, pursuant to this Order and the Settlement Agreement, will vest the AEP Designees with good and marketable title to the Acquired Assets and will be a legal, valid, effective and enforceable transfer of the Acquired Assets to the AEP Designee(s) free and clear of all interests and all Liens and all Liabilities (including, without limitation, any DIP Liens and any existing or future Bankruptcy Claims or Liens of the PBGC or the IRS), other than the Permitted Exceptions and the Assumed Liabilities;provided, however, that any and all interests, Liens and/or Liabilities (including, without limitation, any DIP Liens and any existing or future Bankruptcy Claims or Liens of the PBGC or IRS), other than Permitted Exceptions and Assumed Liabilities, shall be transferred and attach to the Settlement Payment upon its payment by the AEP Parties in accordance with the Settlement Agreement, in the order of their priority, with the same validity, force and effect which they now have, subject to any defenses parties in interest may possess with respect to such interests,
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Liens and/or Liabilities. Effective as of and upon the Closing, (a) the AEP Designees shall assume at the Closing only the Assumed Liabilities and none of the AEP Parties or the AEP Designees shall have any other liability relating to or in connection with the Acquired Assets or the Movants, and (b) the AEP Designees shall own the Acquired Assets (including, without limitation, any and all rights, title and interests in and to the Acquired Assets) free and clear of all interests, Liens and Liabilities, other than the Permitted Exceptions and the Assumed Liabilities. Without limiting the foregoing in any way, except for the Assumed Liabilities and Permitted Exceptions, none of the AEP Designees is assuming, nor shall any one or more of the AEP Parties or the AEP Designees, in any way whatsoever, be liable or responsible, as a successor or otherwise, for any interests, Liens, Liabilities, debts, commitments, or obligations (whether known or unknown, disclosed or undisclosed, absolute, contingent, inchoate, fixed, or otherwise) of the Movants, or any interests, Liens, Liabilities, debts, commitments, or obligations in any way whatsoever relating to or arising from the Acquired Assets, the transfer of the Acquired Assets (including, without limitation, any Liabilities for federal, state or local taxes arising from or in connection with the transfer of the Acquired Assets based on successor liability or similar theories) or the Movants’ use of the Acquired Assets on or prior to the Closing, or any such interests, Liens, Liabilities, debts, commitments, or obligations in any way whatsoever relating to periods on or prior to the Closing, or any interests, Liens, Liabilities calculable by reference to the Movants or their assets or operations or the Acquired Assets, or relating to continuing conditions existing on or prior to the Closing, all of which interests, Liens, Liabilities, debts, commitments, and obligations are hereby extinguished insofar as they may give rise to any claim against any
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of the AEP Parties or any of the AEP Designees or any of the Acquired Assets including, but not limited to any claim asserting successor liability, without regard to whether the claimant asserting any such interests, Liens, Liabilities, debts, commitments and obligations has delivered to the AEP Parties or the AEP Designee(s) a release thereof. Without limiting the generality of the foregoing, none of the AEP Parties or any of the AEP Designees shall be liable or responsible, as successor or otherwise, for the Movants’ interests, Liens, Liabilities, debts, commitments or obligations arising, in whole or in part, prior to, on or after the Closing and under or in connection with (a) any employment or labor agreements, consulting agreements or severance pay; (b) any pension, welfare, compensation or other employee benefit plans, agreements, practices and programs including, without limitation, any pension plan of the Movants; (c) the cessation of the Movants’ operations, dismissal of employees, or termination of employment or labor agreements or pension, welfare, compensation or other employee benefit plans, agreements, practices and programs, obligations that might otherwise arise from or pursuant to the Fair Labor Standard Act, Title VII of the Civil Rights Act of 1964, the Age Discrimination and Employment Act of 1967, the Federal Rehabilitation Act of 1973, the National Labor Relations Act, the Consolidated Omnibus Budget Reconciliation Act of 1985, or the Worker Adjustment and Retraining Notification Act; (d) workmen’s compensation, occupational disease or unemployment or temporary disability insurance claims; (e) any bulk sales and similar law; (f) any Liens, Liabilities, debts, commitments or obligations for any federal, state or local taxes relating to the Movants’ business or the Acquired Assets for or applicable to any pre-Closing tax period(s); (g) the BofA Settlement Agreement; and (h) any litigation, including, but not
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limited to, litigation instituted against the Movants by their shareholders; provided, however, nothing contained in this decretal paragraph 9 shall be deemed to release the AEP Parties from any claim or cause of action arising out of or relating to Titles I and IV of the Employee Retirement Income Security Act of 1974, as amended.
10. The Movants are authorized and directed, pursuant to section 365(a) and (f) of the Bankruptcy Code to (i) assume the Assumed Contracts, (ii) reject the POPS Software License Agreement, (iii) enter into the new POPS Software License Agreement and (iv) assign each of the Prime Lease, the Sublease, and the Leased Facilities Consent to one or more AEP Designees. Notwithstanding anything to the contrary contained herein or in the Settlement Agreement or in any other order of this Court, effective as of and upon the Closing, the Assumed Contracts shall be deemed assumed by the Movants and assigned to the AEP Designees, and the POPS Software License Agreement shall be deemed rejected by the Movants.
11. No cure payments (including payments for any unpaid postpetition obligations or administrative rent claims) or assurances of future performance are required pursuant to section 365 of the Bankruptcy Code or otherwise in connection with any assumption and/or assignment of the Assumed Contracts.
12. Effective as of and upon the Closing, the Purchase Agreement (except as provided in Section 8.5 of the Settlement Agreement), the Enron Guaranty, each of the Buyer Parent Guaranties and each of the Ancillary Purchase Agreements shall be deemed terminated with respect to the Parties and each Party that is a party thereto shall be relieved of any obligation to such other Parties as are party thereto to make any payments, including payment on any prepetition or postpetition claim for damages, under
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such terminated agreements or to otherwise perform under such agreements for the benefit of any such other Party.
13. Effective as of and upon the Closing, each of the Prime Lease, the Sublease, and the Leased Facilities Consent shall be assumed, assigned and transferred to one or more AEP Designees, and remain in full force and effect for the benefit of such AEP Designees and the AEP Parties in accordance with their respective terms except that: (a) pursuant to section 365(b)(2) of the Bankruptcy Code, any defaults under the Assumed Contracts arising from the insolvency or financial condition of the Movants at any time before the Closing or resulting from the commencement of the Bankruptcy Cases, is of no force and effect, null and void, and unenforceable; (b) pursuant to section 365(f)(1) of the Bankruptcy Code, any defaults under the Assumed Contracts arising from the assignment thereof by the Movants to the AEP Designee(s) are of no force and effect, null and void, and unenforceable; and (c) pursuant to section 365(f)(3) of the Bankruptcy Code, notwithstanding any provision of the Assumed Contracts or Applicable Law that terminates or modifies, or permits a party other than the Movants to terminate or modify, such Assumed Contracts or a right or obligation under such Assumed Contracts on account of an assignment of such Assumed Contracts, such Assumed Contracts may not be terminated or modified under such provision because of the assumption or assignment of such Assumed Contracts. Effective as of and upon the Closing, pursuant to section 365(k) of the Bankruptcy Code, the Movants shall be relieved from any further obligation or liability for any breach of the Assumed Contracts occurring after such assumption and/or assignment.
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14. Notwithstanding any provision of the Settlement Agreement, the Motion or this Order to the contrary, the Enron Tag-Along Rights are not being purchased by the AEP Parties or the AEP Designees and are not included in the Acquired Assets, and all references to the Acquired Assets in the Settlement Agreement and this Order shall specifically be deemed to exclude the Enron Tag-Along Rights. Moreover, the BofA Entities and the Movants hereby agree that, and it is so ordered that, the BofA Settlement Agreement is hereby modified and amended by deleting Section 8.4 thereto, entitled “Enron Tag-Along Rights,” and any and all rights, duties or obligations in the BofA Settlement Agreement in respect of the Enron Tag-Along Rights are of no further force or effect.
15. The BofA Entities shall not seek to withdraw any natural gas contained in the Bammel Storage Reservoir that any of them claim the Bammel Gas Trust owns, or in which any of them claims a security interest, without providing to HPL at least 20 days written notice (the “Notice Period”) of a demand to withdraw such natural gas from the Bammel Storage Reservoir or a demand to deliver such natural gas to another location (the “Withdrawal Notice”). Any Withdrawal Notice shall be provided to HPL in conformity with Section 12.11 of the Settlement Agreement. This notice requirement shall also apply to any request to attach, segregate or sequester any such natural gas, or any other request for an injunction or order that would have the effect of prohibiting or impairing any withdrawal of natural gas by HPL. The BofA Entities may apply for an appropriate order or relief permitted or authorized to be granted on such notice as applicable law requires or permits, provided that (a) the BofA Entities in any such application shall inform the applicable court of the notice requirement contained
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herein; and (b) provided that the AEP Parties are complying with paragraph 16 hereof, the BofA Entities shall not request that any order of such court override, alter, eliminate or impair the notice requirement contained herein or request that any order of such court permit withdrawal, attachment, segregation, or sequestration of any natural gas prior to the expiration of the Notice Period.
16. During any Notice Period, the AEP Parties shall operate the Bammel Storage Reservoir, including withdrawals and injections of natural gas, in the ordinary course of business consistent with past practice as reflected in the monthly G-3 Gas Storage Data Sheets which have been or will be filed by the AEP Parties with the Railroad Commission of Texas. The AEP Parties will provide the BofA Entities with a statement certifying the amount of natural gas located in the Bammel Storage Reservoir on the date the Withdrawal Notice is given within 2 business days of the date of such Withdrawal Notice. Nothing in this paragraph 16 or elsewhere in this Order is an admission by the AEP Parties nor a finding by this Court that the BofA Entities have any right, title or interest in any natural gas.
17. Except for the Permitted Exceptions and the Assumed Liabilities, all persons and entities shall be forever barred, estopped, and permanently enjoined from asserting against the Movants, the AEP Parties, the AEP Designees or their predecessors in interest, their Affiliates, designees, officers, directors, employees, agents, successors or assigns or their respective properties, any default or breach existing as of the Closing Date or any counterclaim, defense, right of netting, deduction, recoupment or setoff or any other claim asserted or assertable against the Movants or their predecessors in interest or any other Person, based upon a default or breach that existed prior to or as of
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the Closing Date, in each case under any Assumed Contract. Subsequent to the Closing, no claims for cure pursuant to section 365(b)(1) of the Bankruptcy Code or any other claims may be asserted against the Movants, the AEP Parties, the AEP Designees or their respective predecessors in interest or successors in interest with respect to the Assumed Contracts and the Cushion Gas Consent.
18. Effective as of and upon the Closing, except with respect to the Permitted Exceptions and the Assumed Liabilities, all Persons shall be forever barred, estopped, and permanently enjoined from asserting against the AEP Parties, the AEP Designees, any successor or assign or Affiliate of the AEP Parties or the AEP Designees and/or the Acquired Assets any interests, Liens or Liabilities relating to, in connection with, of or against the Acquired Assets or the Movants.
19. On and after the Closing, any Person (other than the BofA Entities) asserting interests, Liens or Liabilities in or against the Acquired Assets is authorized and directed, upon reasonable request by an AEP Designee, to execute such documents and take all other actions as may be necessary, as reasonably determined by such AEP Designee, to release its interests, Liens or Liabilities, if any, against the Acquired Assets. The exclusion of the BofA Entities from the provisions of this paragraph is without prejudice to the AEP Parties’ right to assert that none of the BofA Entities holds or is the beneficiary of any interest, Lien or Liabilities.
20. If, for any reason, the Closing does not occur and/or the Settlement Agreement is terminated pursuant to its terms, the Movants shall be deemed not to have assumed any of the Assumed Contracts.
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21. Effective as of and upon the Closing, the proofs of claim (including, without limitation, Claim Numbers 14288, 14289, 14301, 14302, and 14639) filed by or on behalf of any of the AEP Parties against the Movants in the Bankruptcy Cases in connection with the Bammel Agreements or the Ancillary Purchase Agreements (but excluding all Trading and Other Claims), shall be deemed irrevocably withdrawn, with prejudice, and expunged and all claims set forth therein disallowed in their entirety.
22. Notwithstanding any provision of this Order or the Settlement Agreement or the Plan or any order confirming the Plan to the contrary (including, without limitation, paragraph 18 of this Order), the Federal Tax Indemnification Claim and the State Tax Indemnification Claims shall be allowed as Class 4 and/or Class 185 claims, as applicable, under the Plan (in accordance with and as further described in Section 8.5 of the Settlement Agreement) and the Liquidated Federal Tax Indemnification Claim and the Liquidated State Tax Indemnification Claims shall be entitled to distributions as allowed Class 4 and/or Class 185 claims under the Plan (subject to and as limited by Section 8.5 of the Settlement Agreement) as though such claims had been liquidated as of the Effective Date (as defined in the Plan) of the Plan. Enron’s indemnification obligations under Section 8.5 of the Settlement Agreement and this Order shall arise upon Enron’s receipt of documentation evidencing that such claims qualify as a Liquidated Federal Tax Indemnification Claim and/or a Liquidated State Tax Indemnification Claim, as applicable. AEPGH agrees to furnish documentation in support of any Federal Tax Indemnification Claim and/or State Tax Indemnification Claims to such third parties as may be reasonably requested by Enron. Neither the Federal Tax Indemnification Claim nor the State Tax Indemnification Claims shall be
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subject to objection on the basis that such claims are contingent or unliquidated or on any other basis arising from or relating to the fact that the amount of such claims are unliquidated or unknown, or subject to any estimation without the prior written consent of the AEP Parties.
23. This Order (a) is and shall be effective as a determination that, upon the Closing, all interests, Liens (including, without limitation, the Bankruptcy Claims) and Liabilities (excluding the Permitted Exceptions and the Assumed Liabilities) existing as to the Acquired Assets as of and prior to the Closing have been unconditionally released, discharged, and terminated in each case as to the Acquired Assets, and (b) is and shall be binding upon and shall govern acts of all entities, including, without limitation, all filing agents, filing officers, title agents, title companies, recorders of mortgages, recorders of deeds, registrars of deeds, administrative agencies, governmental departments, secretaries of state, federal, state, and local officials, and all other persons and entities, who may be required by operation of law, the duties of their office, or contract, to accept, file, register or otherwise record or release any documents or instruments that reflect that the AEP Designees are the assignees of the Acquired Assets free and clear of interests, Liens and Liabilities (including, without limitation, the Bankruptcy Claims) and any rights or remedies as between the Movants and the AEP Parties, arising out of or relating to the events after the Closing.
24. Each and every federal, state, and local governmental agency or department is hereby directed to accept any and all documents and instruments necessary and appropriate to consummate the transactions contemplated by the Settlement Agreement. Pursuant to section 1146(c) of the Bankruptcy Code, the transactions
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contemplated by the Settlement Agreement are exempt from any and all stamp taxes, transfer taxes, and similar taxes.
25. No person shall take any action to prevent, interfere with or otherwise enjoin consummation of the transactions contemplated in or by the Settlement Agreement or this Order.
26. The Settlement Agreement, and any related agreements, documents or other instruments 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 (i) obtain the prior written consent of the Creditors’ Committee, which consent shall not be unreasonably withheld and (ii) provide counsel for the BofA Entities with five (5) business days prior written notice of any proposed modification, amendment or supplement; and provided, further, that any such modification, amendment or supplement shall neither be material nor change the economic substance of the transactions contemplated hereby.
27. In the absence of a stay pending appeal, in the event that the AEP Parties and the Movants elect to consummate the transactions contemplated by the Settlement Agreement at any time after the entry of this Order, then with respect to the transactions approved and authorized herein, the AEP Parties and the AEP Designees, as purchasers in good faith within the meaning of section 363(m) of the Bankruptcy Code, shall be entitled to the protections of section 363(m) of the Bankruptcy Code in the event this Order or any authorization contained herein is reversed or modified on appeal.
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28. Except to the extent required to repay the DIP Obligations[3] (if any) pursuant to and in accordance with the DIP Order, all proceeds received by the Movants in connection with the transactions contemplated by the Settlement Agreement shall be retained by the Movants, and be neither disbursed nor used until the earlier to occur of (i) an agreement by and between the Movants and the Creditors’ Committee with respect to the release of such proceeds and (ii) further order of this Court. Upon the occurrence of the Effective Date (as defined in the Fifth Amended Joint Plan of Affiliated Debtors Pursuant the Chapter 11 of the United States Bankruptcy Code (the “Plan”), such proceeds received by any Movant shall be used and/or disbursed as provided in the Plan and/or the Order, dated July 15, 2004, Confirmation Supplemental Modified Fifth Amended Joint Plan of Affiliated Debtors Pursuant to Chapter 11 of the United States Bankruptcy Code, and Related Relief.
29. 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 Agreement, 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.
30. The terms of this Order and the Settlement Agreement shall be binding on and inure to the benefit of the AEP Parties, the AEP Designees, the Movants,
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their estates and creditors and all other parties in interest, and any successors of AEP Parties, the AEP Designees, the Movants, their estates and creditors, including, without limitation, any trustee or examiner appointed in the Bankruptcy Cases or any subsequent or converted cases of the Debtors under chapter 7 or chapter 11 of the Bankruptcy Code. The terms of this Order shall govern in the event of any conflict between the terms of the Settlement Agreement and the terms of this Order.
31. This Court shall retain jurisdiction to hear and determine all matters arising from the implementation of this Order.
32. After the Closing and without further consideration, each Party will, or will cause its Affiliates to, from time to time, at the reasonable request of any other Party, execute and deliver such other additional instruments of conveyance and transfer and such other instruments, documents and agreements, seek the entry of any necessary orders from this Court, and take such other actions as such other Party may reasonably request or as may be reasonably requested by any third parties in order to effect the transfers or purposes contemplated by the Settlement Agreement provided that the requesting Party will prepare any additional documents and instruments and will be responsible for any submittal, applications, processing, recording and registrations. After the Closing and without further consideration, the Movants will, or will cause their Affiliates to, from time to time, at the reasonable request of any AEP Party, execute and deliver such other additional instruments of conveyance and transfer and such other instruments, documents and agreements, seek the entry of any necessary orders from this Court, and take such other actions as such AEP Party may reasonably request in order to effect the transfer to such AEP Party or its designee of any rights of way, easements,
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Permits, authorizations, approvals or other asset (other than equity interests in any Person) used in connection with the ownership, operation or maintenance of any pipelines, compressors, wells, pipes, equipment, or other related facilities that were owned, or represented to AEPGH as being owned, by HPL, HPLR or any of their Subsidiaries at the time AEPGH acquired HPL and HPLR in 2001 and were not in fact owned by or transferred to HPL, HPLR, or any such Subsidiary at that time.
33. The ten (10) day stay period provided for in Bankruptcy Rules 6004(g) and 6006(d) shall not be in effect with respect to the transaction contemplated in the Settlement Agreement; thus, this Order shall be effective and enforceable immediately upon entry.
34. If any Person that has filed financing statements, mortgages, mechanic’s liens, lis pendens, or other documents or agreements evidencing Liens on or interests in the Acquired Assets shall not have delivered to the Movants prior to the Closing, in proper form for filing and executed by the appropriate parties, termination statements, instruments of satisfaction, releases of all Liens or other interests that the person or entity has with respect to the Acquired Assets or otherwise, then (a) the Movants hereby are authorized and directed to execute and file such statements, instruments, releases and other documents on behalf of the person or entity with respect to the Acquired Assets and (b) the AEP Designees hereby are authorized to file, register, or otherwise record a certified copy of this Order which, once filed, registered, or otherwise recorded, shall constitute conclusive evidence of the release of all Liens and other interests of any kind or nature whatsoever in the Acquired Assets.
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35. Nothing contained in any plan of reorganization or liquidation confirmed in the Bankruptcy Cases or any Order of this Court confirming such plan or any other order entered in the Bankruptcy Cases shall conflict with, modify, amend or derogate from the provisions of the Settlement Agreement or the terms of this Order.
36. Notwithstanding anything to the contrary contained in the Settlement Agreement, the Motion, or this Order (with the exception of paragraphs 14, 15 and 16 and this paragraph 36) —
a. None of the Settlement Agreement, the Motion, or this Order shall release, discharge, reduce or otherwise adversely affect or interfere with the obligations owed by the Movants and by the BofA Entities under the BofA Settlement Agreement, including but not limited to, and subject in all respects to the terms of the BofA Settlement Agreement, (i) the Movants’ obligation to cooperate with the BofA Entities in their efforts to obtain access to and to realize on the value of “BGT Gas” (as defined in the BofA Settlement Agreement), and (ii) the Movants’ obligation to preserve any rights that the BofA Entities may have with respect to the Acquired Assets relative to the rights of the BofA Entities to a sale of the BGT Gas;
b. none of the Settlement Agreement, the Motion, or this Order, including any characterization, description, alleged fact, finding, conclusion or determination with respect to the Movants, the AEP Parties, and/or the Bammel Structure contained herein or therein, shall adversely affect, and the terms of this Order are without prejudice to, the rights, claims, interests or defenses, if and to the extent any such rights, claims, interests or defenses exist, of any of the BofA Entities arising under or relating to the Cushion Gas Consent, the Bammel Agreements or any of the Operative Documents
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(as such term is defined in all of the Cushion Gas Consent, the Master Transaction Agreement and the Participation Agreement) or under applicable law relating to up to 55 bcf of natural gas stored in the Bammel Storage Reservoir; provided that such rights, claims, interests and defenses, if any, do not and shall not include any title to, ownership of, or security interest in any Acquired Asset;
c. the BofA Entities shall retain and preserve the rights, claims, and defenses, if any, arising out of any of the transactions comprising the “Bammel Structure,” as described in the Motion, that they may have against any of the AEP Parties in the AEP Parties’ own capacity, and not as a purported successor to or assignee of any Movant or other current Affiliate of Enron; provided that such rights, claims and defenses, if any, shall not be based on (i) any claim of title to, ownership of, or security interest in any Acquired Asset or (ii) any claim that an AEP Party assumed a Liability owed by any Movant or other current Affiliate of Enron to any BofA Entity in connection with the acquisition of the Acquired Assets pursuant to the Settlement Agreement and this Order; and provided further that the provisions of clause (ii) shall be without prejudice to the rights, claims, interests and defenses, if any, retained and preserved under paragraph 36(b) above; and provided further that nothing in this paragraph 36(c) or elsewhere in this Order is an admission by the AEP Parties nor a finding by this Court that the BofA Entities have any such right, claim or defense;
d. none of the Settlement Agreement, the Motion, or this Order shall adversely affect, and the relief granted in this Order is without prejudice to, the right, if any, of any BofA Entities to preserve, protect and enforce their rights, claims, and defenses, if any, as described in paragraphs (b) and (c) above;
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e. the BofA Settlement Agreement did not create any right or interest in the Acquired Assets in favor of the BofA Entities;
f. the Settlement Agreement and the BofA Settlement Agreement have been independently approved by the Court and neither of such agreements alters, changes or otherwise modifies the rights, obligations or duties of any of the parties arising under the other such agreement;
g. nothing in this Order or the Settlement Agreement creates any new right or interest in the Acquired Assets in favor of any of the BofA Entities; and
h. the sale by the Movants of the Acquired Assets in accordance with the terms, as disclosed in the Settlement Agreement, the Motion and this Order, does not conflict with or violate the BofA Settlement Agreement.