Case No. 01-16034 (AJG), Jointly Administered.United States Bankruptcy Court, S.D. New York.
February 24, 2005
ORDER APPROVING SETTLEMENT AGREEMENT BETWEEN ENRON CORP., ENRON NORTH AMERICA CORP. AND ENRON CAPITAL TRADE RESOURCES INTERNATIONAL CORP. AND GOLDMAN SACHS CAPITAL MARKETS, L.P., EUROPEAN POWER SOURCE COMPANY (U.K.) LIMITED, THE GOLDMAN SACHS GROUP, INC., THE GOLDMAN SACHS GROUP, L.P. AND J. ARON COMPANY
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 Between Enron Corp., Enron North America Corp., Enron Capital Trade Resources International Corp. and Goldman Sachs Capital Markets, L.P., European Power Source Company (U.K.) Limited, The Goldman Sachs Group, Inc., The Goldman Sachs Group, L.P. and J. Aron Company[1] dated February 11, 2005 (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 pursuant to Section 38.1 of the Supplemental Modified Fifth Amended Joint Plan of Affiliated Debtors Pursuant to Chapter 11 of the United States Bankruptcy Code, dated July 2, 2004; 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 Second Amended Case Management Order
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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. and Enron Capital Trade Resources International Corp. (collectively the “Reorganized 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 limited mutual release set forth therein between the Reorganized Debtors and the Goldman Entities (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 Reorganized 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 except to the extent required to repay the DIP Obligations[2] (if any) pursuant to and in accordance with the DIP Order and the Documents, all proceeds received
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by Enron North America Corp. (“ENA”) in connection with the Settlement Agreement shall be retained by ENA and neither disbursed nor used until the earlier to occur of (i) agreement by and between ENA and the Official Committee of Unsecured Creditors 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 all proofs of claim filed in the Reorganized Debtors’ chapter 11 proceedings by or on behalf of the Goldman Entities in connection with the Contracts and the Guaranties (as defined in the Motion) including, but not limited to, the proofs of claim more fully described on Exhibit A attached hereto (collectively, the “POCs”), shall be deemed irrevocably withdrawn, with prejudice, and to the extent applicable, expunged, and all claims set forth in the POCs shall be disallowed in their entirety, and it is further
ORDERED that each liability scheduled by the Reorganized Debtors in their respective liability schedules reflecting sums owed to any of the Goldman Entities pursuant to the Contracts and the Guaranties (as defined in the Motion) (collectively, the “Scheduled Liabilities”) shall be deemed irrevocably withdrawn, with prejudice, and to the extent applicable, expunged, and all such Scheduled Liabilities shall be disallowed in their entirety, and it is further
ORDERED that the Contracts and the Guaranties (as defined in the Motion) are terminated pursuant to the terms specified in the Settlement Agreement, and it is further
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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 Reorganized 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 Description of Proofs of Claim to be Expunged
1. Proof of Claim No. 12630 filed by J. Aron Company against Enron Capital Trade Resources International Corp. in the amount of $5,780,454.00.
2. Proof of Claim No. 12631 filed by J. Aron Company against Enron Corp. in the amount of $99,333,125.33.
3. Proof of Claim No. 12633 filed by J. Aron Company against Enron North America Corp. in the amount of $191,465,154.00.
4. Proof of Claim No. 12634 filed by European Power Source Company (U.K.) Limited against Enron Corp. in the amount of $6,913,760.19.
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