Case No. 01-16034 (AJG) Jointly AdministeredUnited States Bankruptcy Court, S.D. New York.
March 11, 2004
Martin J. Bienenstock, Brian S. Rosen, Martin S. Sosland (Pro Hac Vice) Melanie Gray (Pro Hac Vice), WEIL, GOTSHAL MANGES LLP, New York, NY, for the Debtors
ORDER APPROVING SETTLEMENT AGREEMENT AND MUTUAL RELEASE AMONG ENRON CORP. AND CERTAIN OF ITS AFFILIATES AND DUKE ENERGY CORPORATION AND CERTAIN OF ITS AFFILIATES
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 and Mutual Release Among Enron Corp. and Certain of Its Affiliates and Duke Energy Corporation and Certain of Its Affiliates, dated February 27, 2004 (the “Motion”),[1]
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
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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 Corp., Enron North America Corp. (“ENA”), Enron Power Marketing, Inc., Enron Capital Trade Resources International Corp., Enron Liquid Fuels, Inc., Enron Gas Liquids, Inc., Enron Reserve Acquisition Corp., ENA Upstream Company, LLC, Enron Broadband Services, L.P., and Enron Energy Services, Inc. (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 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 (the “Settlement Agreement”) among the Debtors, Enron Canada Corp., Enron Clean Fuels Company and the Duke Companies, as defined and identified on Schedule “A” attached hereto is authorized and approved pursuant to the Protocol Order and Rule 9019 of the Federal Rules of Bankruptcy Procedure, and it is further
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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 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 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[2] (if any) pursuant to and in accordance with the DIP Order and the
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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, 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, pursuant to the terms of the Settlement Agreement, upon this Order becoming final, the Released Contracts (as that term is defined in the Motion) are terminated, 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, pursuant to the terms of the Settlement Agreement, with the exception of proof of claim number 17461 filed by Union Gas Limited against ENA in the amount of $8,516,257.72 and any amendments thereto, upon this order becoming final, each proof of claim filed with the Bankruptcy Court by or on behalf of the Duke Counterparties, including, but not limited to, the proofs of claim on Schedule “B”
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attached hereto, shall be deemed irrevocably withdrawn, with prejudice, and to the extent applicable, expunged, 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 JP Morgan Chase Bank (“JPMCB”), as escrow agent under that certain Escrow Agreement dated March 28, 2002, by and among JPMCB, Centana Intestate Pipeline, LLC (“CIPCO”), and ENA, is authorized to release the Deposit (as such term is defined in the Escrow Agreement) in accordance with written release directions to be submitted by CIPCO and ENA to the Escrow Agent pursuant to the terms of the Settlement Agreement.
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Schedule “A” “CounterpartiesDuke Companies:
ALGONQUIN GAS TRANSMISSION COMPANY, a Delaware corporation ASSOCIATED NATURAL GAS CORPORATION (n/k/a Duke Energy Natural Gas Corporation), a Delaware corporation1 ASSOCIATED NATURAL GAS, INC. (now a part of Duke Energy Natural Gas Corporation), a Delaware corporation CENTANA INTRASTATE PIPELINE, LLC, a Delaware limited liability company DUKE ENERGY CORPORATION, a North Carolina corporation DUKE ENERGY FIELD SERVICES, LLC, a Delaware limited liability company DUKE ENERGY FIELD SERVICES, LP (f/k/a Duke Energy Field Services Assets, LLC), a Delaware limited partnership DUKE ENERGY FIELD SERVICES MARKETING, LP (f/k/a Duke Energy Field Services Marketing, LLC), a Delaware limited liability company DUKE ENERGY FUELS, L.L.C. (f/k/a Duke Energy Fuels, L.P.), a Delaware limited liability company DUKE ENERGY GUADALUPE PIPELINE, INC., a Delaware corporation DUKE ENERGY INTERNATIONAL TRADING MARKETING (UK) LTD., a United Kingdom company DUKE ENERGY MARKETING LIMITED PARTNERSHIP, an Alberta Canada limited partnership DUKE ENERGY MERCHANTS LLC, a Delaware limited liability company DUKE ENERGY NGL SERVICES, LP (f/k/a Duke Energy NGL Services, LLC) a Delaware limited partnership DUKE ENERGY NORTH AMERICA LLC, a Delaware limited liability company DUKE ENERGY TRADING MARKETING, L.L.C., a Delaware limited liability company DUKE POWER (a division of Duke Energy Corporation) DUKE POWER COMPANY (n/k/a Duke Energy Corporation), a North Carolina corporation EAST TEXAS GAS SYSTEMS, LP, a Delaware limited partnership ENGAGE ENERGY AMERICA, LLC (n/k/a Engage Energy, LLC), a Delaware limited liability company ENGAGE ENERGY CANADA, LP, an Alberta Canada limited partnership TEXAS EASTERN TRANSMISSION, LP, a Delaware limited partnership
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Schedule “B” Description of Proofs of Claim
1. Proof of Claim number 12550 filed by Algonquin Gas Transmission Co. against Enron North America Corp. in the amount of $4,790.00
2. Proof of Claim number 12551 filed by Algonquin Gas Transmission Co. against Enron Corp. in the amount of $4,790.00
3. Proof of Claim number 13359 filed by Centana Intrastate Pipeline, LLC against Enron North America Corp. in the amount of $338,791.00.
4. Proof of Claim number 12951 filed by Duke Energy Field Services against Enron Corp. in the amount of $4,845,073.00.
5. Proof of Claim number 13360 filed by Duke Energy Field Services against Enron North America Corp. in the amount of $4,845,073.00.
6. Proof of Claim number 12952 filed by Duke Energy Field Services Marketing, LP against Enron North America Corp. in the amount of $0.00.
7. Proof of Claim number 12749 filed by Duke Energy Guadalupe Pipeline, Inc. against Enron North America Corp. in the amount of $190,455.00.
8. Proof of Claim number 12743 filed by Duke Energy International Trading Marketing, (UK) Ltd. against Enron Corp in the amount of $6,820,000.00.
9. Proof of Claim number 12744 filed by Duke Energy Merchants, LLC against Enron Liquid Fuels, Inc. in the amount of $1,268,598.00.
10. Proof of Claim number 12745 filed by Duke Energy Merchants, LLC against Enron Corp in the amount of $1,268,598.00.
11. Proof of Claim number 12746 filed by Duke Energy Merchants, LLC against Enron North America Corp. in the amount of $10,444,330.00.
12. Proof of Claim number 12747 filed by Duke Energy Merchants, LLC against Enron Corp. in the amount of $10,444,330.00.
13. Proof of Claim number 12748 filed by Duke Energy Merchants, LLC against Enron Broadband Services, L.P. in the amount of $219,093.65.
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14. Proof of Claim number 12934 filed by Duke Energy Merchants, LLC against Enron Corp. for the amount of $212,810.00.
15. Proof of Claim number 12750 filed by Duke Energy NGL Services against Enron Gas Liquids, Inc. in the amount of $503,639.00.
16. Proof of Claim number 12954 filed by Duke Energy NGL Services against Enron North America Corp. in the amount of $294,148.00.
17. Proof of Claim number 13358 filed by Duke Energy NGL Services against Enron Corp. in the amount of $503,639.00.
18. Proof of Claim number 12955 filed by Duke Energy NGL Services against Enron Corp. in the amount of $294,148.00.
19. Proof of Claim number 12959 filed by Duke Energy North America, LLC against Enron North America Corp. in the amount of $938,819.00.
20. Proof of Claim number 12555 filed by Duke Energy Trading and Marketing, LLC against Enron Corp. for the amount of $377,350.00.
21. Proof of Claim number 12558 filed by Duke Energy Trading and Marketing, LLC against Enron Corp. for the amount of $143,861,706.00.
22. Proof of Claim number 12559 filed by Duke Energy Trading and Marketing, LLC against Enron Corp. for the amount of $559,000.00.
23. Proof of Claim number 12560 filed by Duke Energy Trading and Marketing, LLC against Enron North America Corp. for the amount of $143,861,706.00.
24. Proof of Claim number 12561 filed by Duke Energy Trading and Marketing, LLC against Enron Power Marketing, Inc. for the amount of $143,861,706.00.
25. Proof of Claim number 12956 filed by Duke Energy Trading and Marketing, LLC against Enron Energy Services, Inc. in the amount of $1,117,322.00.
26. Proof of Claim number 12957 filed by Duke Energy Trading and Marketing, LLC against Enron Corp. for the amount of $1,117,322.00.
27. Proof of Claim number 12958 filed by Duke Energy Trading and Marketing, LLC against Enron North America Corp. for the amount of $0.00.
28. Proof of Claim number 12552 filed by Duke Power against Enron Power Marketing, Inc. for the amount of $47,112.50.
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29. Proof of Claim number 12553 filed by Duke Power against Enron North America Corp. in the amount of $47,112.50.
30. Proof of Claim number 12554 filed by Duke Power against Enron Corp. in the amount of $47,112.50.
31. Proof of Claim number 12953 filed by East Texas Gas Systems LP against Enron North America Corp. in the amount of $2,828.00.
32. Proof of Claim number 12739 filed by Engage Energy America LLC against Enron Power Marketing, Inc. in the amount of $1,110,357.00.
33. Proof of Claim number 12741 filed by Engage Energy America LLC against Enron North America Corp. in the amount of $1,110,357.00.
34. Proof of Claim number 12742 filed by Engage Energy America LLC against Enron Corp. in the amount of $1,110,357.00.
35. Proof of Claim number 12546 filed by Engage Energy Canada against Enron North America Corp. in the amount of $2,203,486.00.
36. Proof of Claim number 12740 filed by Engage Energy Canada LP against Enron Corp. in the amount of $2,203,486.00.
37. Proof of Claim number 12548 filed by Texas Eastern Transmission against Enron North America Corp. in the amount of $150,109.00.
38. Proof of Claim number 12549 filed by Texas Eastern Transmission against Enron Corp. in the amount of $150,109.00.
39. Proof of Claim number 12556 filed by Texas Eastern Transmission against Enron Energy Services, Inc. in the amount of $36,658.00.
40. Proof of Claim number 12557 filed by Texas Eastern Transmission against Enron Corp. in the amount of $36,658.