ARTHUR J. GONZALEZ, United States Bankruptcy Judge
Upon the order, dated April 8, 2002 (the "April 8 Order"), (a) directing the appointment of an examiner in the Enron Corp. chapter 11 case (the "Enron Corp. Examiner"), and (b) directing the Enron Corp. Examiner to, inter alia, investigate all transactions involving special purpose entities, as well as all entities involved therein; and upon the Enron Corp. Examiner being unable to investigate certain entities (and their subsidiaries and/or affiliates) who were involved in transactions pertaining to special purpose entities, including, without limitation, the entities listed on Schedule "1" annexed hereto and any other relevant entity that the Enron Corp. Examiner is unable to investigate (collectively, the "Identified Entities"); and upon the order, dated February 21, 2002, directing the appointment of an examiner in the Enron North America Corp. ("ENA") chapter 11 case (the "ENA Examiner"); and upon the order, dated March 12, 2002, appointing Harrison J. Goldin as the ENA Examiner; and it appearing that (i) the United States Trustee has requested the ENA Examiner conduct an investigation of the Identified Entities and (ii) the ENA Examiner is prepared to do so on the same terms as specified in the April 8 Order relating to the Enron Corp. Examiner; and upon the Scheduling Order entered by the Court on May 2, 2003; and notice of the Scheduling Order, the motion, dated May 1, 2003, for authority to expand the scope of the ENA Examiner to include investigation of the Identified Entities, the Proposed Order and the Amended Order having been served in accordance with the Scheduling Order, and no other notice being required; and after due deliberation and sufficient cause appearing therefor; it is hereby
Terms used herein and not otherwise defined will have the meaning assigned to them in the Motion.
ORDERED that the Motion is granted, and the ENA Examiner is retained nunc pro tunc to May 1, 2003, to perform the services described herein; and it is further
ORDERED that the ENA Examiner shall have the authority and power to investigate and report on matters concerning the Identified Entities and their role in all transactions: (i) involving special purpose vehicles or entities created or structured by the Debtors or at the behest of the Debtors (collectively, the "SPEs"), that are (ii) not reflected on the Enron Corp. balance sheets, or that (iii) involve hedging using the Enron Corp. stock; or (iv) as to which the ENA Examiner has the reasonable belief are reflected, reported or omitted in the relevant entity's financial statements not in accordance with generally accepted accounting principles or that (v) involve potential avoidance actions against any pre-petition insider or professional of the Debtors; and it is further
ORDERED that the ENA Examiner shall have the authority to investigate and report on transactions involving not only Enron Corp., but also any entity controlled by Enron Corp. and any other Debtor in these jointly administered cases; provided, however, that such transactions involved the Identified Entities; and it is further
ORDERED that all of the Debtors and their professionals, including the captioned Debtor's direct and indirect affiliates and subsidiaries, any official committee and its professionals, the Enron Corp. Examiner and his professionals and the ENA Examiner shall mutually coordinate and cooperate with each other, and the Debtors and the Enron Corp. Examiner and their respective professionals shall provide the ENA Examiner with all documents and information relating to the Identified Entities that the ENA Examiner deems relevant to discharge his duties hereunder or as such duties may be expanded or limited by this Court; provided, however, that any information, document or other communication between the Enron Corp. Examiner and the ENA Examiner does not waive any previously attached privilege; and it is further
ORDERED that the Enron Corp. Examiner shall not investigate, in any capacity, any of the Identified Entities or their role in any of the matters that were previously the subject of the April 8 Order, and, without limiting the foregoing, the Enron Corp. Examiner shall not notice examinations of the Identified Entities (or their employees, officers or directors) under Rule 2004 of the Federal Rules of Bankruptcy Procedure; and it is further
ORDERED that in respect to his investigation of the Identified Entities, the ENA Examiner shall be bound by the terms of the "Order, Under 11 U.S.C. § 1103(c) and F.R.Bankr.P. 2004, Granting 2004 Motions of Official Committee of Unsecured Creditors and Enron Corp. Examiner and Authorizing the Issuance of Subpoenas for Rule 2004 Examinations and the Production of Documents," dated September 12, 2002 (the "Rule 2004 Order") and the Rule 2004 Order is hereby amended to include the ENA Examiner as a party thereto; and it is further
ORDERED that nothing contained in this Order shall diminish the powers and authority of any official committee under the Bankruptcy Code, including the powers to investigate transactions and entities, commence contested matters and adversary proceedings and object to claims; and it is further
ORDERED that the ENA Examiner, to the extent possible, shall avoid duplication of effort of the Debtors, the Enron Corp. Examiner and any official committee in connection with investigations to be pursued pursuant to this Order; and it is further
ORDERED that nothing in this Order is intended to restrict this Court's ability to expand or limit the duties of the ENA Examiner or prejudice or limit the ability of any party in interest to move this Court to expand or limit the duties of the ENA Examiner, upon motion and a hearing, or limit the investigation being undertaken by the ENA Examiner pursuant to this Order; and it is further
ORDERED that the ENA Examiner shall have the power to waive, on an issue-by-issue basis, the attorney-client privilege of the Debtors' estates with respect to prepetition communications relating to matters to be investigated by the ENA Examiner concerning the Identified Entities; provided, however, that, in making any such determination, the ENA Examiner shall act in the best interests of the Debtors' estates, after consultation with the Enron Corp. Examiner, the Debtors and the Official Committee of Unsecured Creditors (the "Official Creditors Committee") preserving the right in the Enron Corp. Examiner, Debtors and the Official Creditors' Committee to make prompt objection to the Court on two business days' notice; such waiver shall be a limited and not a general waiver; and it is further
ORDERED that, in connection with his duties set forth in this Order, the ENA Examiner shall not make any public disclosure concerning his deliberations, conclusions, recommendations or the nature and content of the report(s) he is preparing concerning the Identified Entities until such report(s) shall have been filed with the Court; provided, however, that the ENA Examiner may communicate non-privileged information to government entities, including among others, the Securities and Exchange Commission and the United States Department of Justice; and it is further
ORDERED that with respect to any report filed by the ENA Examiner of the Identified Entities, the ENA Examiner shall be bound by the procedures described in the order to be entered by the Court regarding the timing and dissemination of the Enron Corp. Examiner's third interim report; and it is further
ORDERED that the ENA Examiner may retain, upon notice and a hearing, counsel and other professionals pursuant to section 327 of the Bankruptcy Code to assist him in the investigation of the Identified Entities if he determines that such retention is necessary to discharge his duties hereunder; and it is further
ORDERED that, to the extent the Enron Corp. Examiner has previously established a legal standard applicable to certain areas of law which are relevant to the ENA Examiner's investigations and duties set forth herein, the ENA Examiner shall follow and adhere to such legal standards; provided, however, that, if the ENA Examiner disagrees with any legal standard previously established by the Enron Corp. Examiner, he may seek immediate and appropriate relief from the Court; and it is further
ORDERED that the ENA Examiner and any professionals retained by him pursuant to an order of this Court shall be compensated from the Debtors' estates pursuant to section 330 of the Bankruptcy Code and further orders of this Court, including, without limitation, adherence to the fee procedures established in these chapter 11 cases; and it is further
ORDERED that the ENA Examiner shall have the duties, powers and responsibilities of an examiner under section 1106(b) of the Bankruptcy Code; provided, however, that the scope of the ENA Examiner's duties as set forth herein, unless expanded or limited by further order of this Court, shall be limited to the investigations delineated herein concerning the Identified Entities and to the preparation of reports regarding such investigations as set forth in this Order; and it is further
ORDERED that the ENA Examiner shall be a "party in interest" under section 1109 of the Bankruptcy Code with respect to matters that are within the scope of the duties delineated in this Order or as such duties may be expanded or limited by this Court, and he shall be entitled to appear at hearings held in these cases and to be heard at such hearings with respect to matters that are within the ENA Examiner's duties set forth herein; and it is further
ORDERED that the ENA Examiner's report concerning the Identified Entities shall be filed with this Court within 120 days of the entry of this Order unless such time period is extended by further order of the Court and he shall file such additional reports as may be warranted or directed by the Court from time to time thereafter; and it is further
ORDERED that the scope of the ENA Examiner's duties is expanded to incorporate the powers, authority and duties set forth herein; and it is further
ORDERED that nothing set forth in this Order shall limit or otherwise affect the scope of the ENA Examiner's duties set forth in prior Orders of this Court.
SCHEDULE "1" IDENTIFIED ENTITIES
The Identified Entities include those entities listed herein as well as their subsidiaries and/or affiliates.
1. Bank of America
2. PricewaterhouseCoopers LLP
3. KPMG LLP
4. Royal Bank of Canada
5. UBS Warburg AG