Case No. 03-46590 (DML), Jointly AdministeredUnited States Bankruptcy Court, N.D. Texas.
October 8, 2003
Robin Phelan, Judith Elkin, HAYNES AND BOONE, LLP, Dallas, TX, for Debtor
Thomas E Lauria, WHITE CASE LLP, Miami, Florida, for Debtor
ORDER PURSUANT TO SECTIONS 365 AND 363(b) OF THE BANKRUPTCY CODE APPROVING, INTER ALIA, THE DEBTORS’ (A) ASSUMPTION AND ASSIGNMENT OF AN OPERATING AND MAINTENANCE AGREEMENT, (B) ASSUMPTION OF AN OPERATING AND MAINTENANCE TRANSFER AGREEMENT AND PERFORMANCE OF OBLIGATIONS UNDER A GUARANTY AGREEMENT
MICHAEL LYNN, Bankruptcy Judge
Upon consideration of the motion dated September 10, 2003 (the “Motion”)[1] of Mirant Corporation, Mirant Services, LLC (“Mirant Services”), Mirant Americas, Inc. (“Mirant Americas”) and its affiliated debtors (collectively, the “Debtors”), as debtors and debtors-in-possession, for the entry of an order (a) pursuant to section 365 of the Bankruptcy Code, authorizing Mirant Services to (i) assume and assign the O M Agreement to GEII, and (ii) assume the O M Transfer Agreement; and (b) pursuant to section 363(b) of the Bankruptcy Code, authorizing Mirant Americas to (i) perform its obligations under the Guaranty, and (ii) in its capacity as a shareholder of Mirant Birchwood, cause Mirant Birchwood to enter into and consummate the Transaction; and the Court having considered the Motion; and no previous
Page 2
motion for the relief therein having been made; and it appearing that the Court has jurisdiction over this matter and the relief requested in accordance with 28 U.S.C. § 157 and 1334; and it appearing that due and proper notice of the Motion has been provided as set forth in the Motion, and that no other or further notice need be provided; and it further appearing that the relief requested in the Motion is in the best interests of the Debtors and their estates and creditors; and upon all of the proceedings heard before the Court; and after due deliberation and sufficient cause appearing therefor, it is
ORDERED that the Motion is granted to the extent provided herein; and it is further
ORDERED that, pursuant to section 365 of the Bankruptcy Code, subject as provided in the penultimate decretal paragraph, (i) Mirant Services be authorized to assume the O M Agreement and to assign the same to GEII and (ii) no cure amounts are owed under the O M Agreement; and it is further
ORDERED that, pursuant to section 365 of the Bankruptcy Code, subject as provided in the penultimate decretal paragraph, (i) Mirant Services be authorized to assume the OM Transfer Agreement and (ii) no cure amounts are owed under the OM Transfer Agreement; and it is further
ORDERED that, pursuant to section 363(b) of the Bankruptcy Code, subject as provided in the penultimate decretal paragraph, Mirant Americas be authorized to perform its obligations under the Guaranty; and it is further
Page 3
ORDERED that, pursuant to section 363(b) of the Bankruptcy Code, subject as provided in the penultimate decretal paragraph, Mirant Americas be authorized to cause Mirant Birchwood to enter into and consummate the Transaction Documents to which it is a party, and the transactions contemplated thereby; and it is further
ORDERED that, subject as provided in the penultimate decretal paragraph, the Debtors are authorized and empowered to execute such other agreements, documents and instruments and to take such further actions as may be necessary or appropriate to effectuate the matters set out in this Order; and it is further
ORDERED that, unless otherwise ordered by this Court, the transactions authorized by this Order shall not be consummated until such time that the Debtors shall have received written notice (the “Notice”) from the Official Committee for the Unsecured Creditors of Mirant Corporation (the “Mirant Committee”) stating that the issues regarding that certain letter of credit no. LC870-124290 issued in favor of Credit Suisse First Boston, in its capacity as security agent, have been resolved to the satisfaction of the Mirant Committee, provided that nothing herein shall prejudice the rights of the Debtors or the Mirant Committee from seeking appropriate relief from this Court with respect to the same, including without limitation, the rights of the Debtors to seek relief from this Court to consummate such transactions in the event that the Mirant Committee fails to timely provide the Notice; and it is further
Page 4
ORDERED that this Court shall, and hereby does, retain jurisdiction with respect to all matters arising from or related to the implementation of this Order.