Case No. 01-16034 (AJG), Jointly Administered.United States Bankruptcy Court, S.D. New York.
April 16, 2004
ORDER APPROVING SETTLEMENT AGREEMENT AMONG ENRON ENERGY SERVICES OPERATIONS, INC., ENRON ENERGY SERVICES, INC., ENRON FREIGHT MARKETS CORP., ENRON CORP., DEAN FOODS COMPANY, AND PURITY DAIRIES, INCORPORATED
ARTHUR GONZALEZ, Bankruptcy Judge
Upon consideration of the Motion of Enron Energy Services Operations, Inc., Enron Energy Services, Inc., Enron Freight Markets Corp., Enron Corp.,’s Pursuant to Bankruptcy Rule 9019 For Approval of Settlement Agreement Among Enron Energy Services Operations, Inc., Enron Energy Services, Inc., Enron Freight Markets Corp., Enron Corp., Dean Foods Company, and Purity Dairies, Incorporated (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 therein 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 no other or further notice need be given; and the relief requested in the Motion being in the best interests of Enron Energy Services Operations, Inc., Enron Energy Services, Inc., Enron Freight Markets Corp., Enron Corp. (collectively, the “Debtors”) and their 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 relief granted herein and
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that the Settlement Agreement 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 among the Debtors, Dean Foods Company (f/k/a Suiza Foods Corporaiton), and Purity Dairies, Incorporated (the “Settlement Agreement”) is authorized and approved pursuant to Rule 9019 of the Federal Rules of Bankruptcy Procedure, 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 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, which consent shall not be unreasonably withheld; and provided,however, that any such amendment shall neither be material in nature nor change the economic substance of the settlement approved thereby, 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.
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Furthermore, the Court shall retain exclusive jurisdiction to interpret, implement, and enforce the provisions of this Order, and it is further
ORDERED that upon the Bankruptcy Court Approval Date (as that term is defined in the Settlement Agreement), each proof of claim filed by or on behalf of Dean Foods Company or Purity Dairies, Incorporated against the Debtors in connection with the Contracts (as that term is defined in the Settlement Agreement), including but not limited to proof of claim number 12849 in the amount of $47,448,260, shall be deemed irrevocably withdrawn, with prejudice, and to the extent applicable expunged, and all claims set forth in such proofs of claim disallowed in their entirety, 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. 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, and it is further
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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 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, and it is further
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 Debtors in connection with the Settlement Agreement shall be retained by the Debtors and neither disbursed nor used until the earlier to occur of (i) agreement by and between the Debtors and the Committee with respect to the release of such proceeds and (ii) further order of this Court.