UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
___________________________________________
:
In re :
: Chapter 11
CONSOLIDATED HYDRO, INC., : Case No. 97-1924 (SLR)
:
Debtor. :
:
___________________________________________
ORDER CONFIRMING DEBTOR'S PLAN OF
REORGANIZATION UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
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The Debtor's Plan of Reorganization Under Chapter 11 of the
Bankruptcy Code dated August 8, 1997 (the "Plan"), a copy of which is annexed
hereto as Exhibit A,1 having been filed with the Court by Consolidated Hydro,
Inc., a Delaware corporation ("CHI" or the "Debtor"); and the Debtor's
Disclosure Statement, dated August 8, 1997 (the "Disclosure Statement"), a copy
of which is annexed hereto as Exhibit B, having been filed with the Court by the
Debtor; and a hearing to consider the confirmation of the Plan (the
"Confirmation Hearing") having been held before the Court on October 23, 1997;
and due notice of the Confirmation Hearing having been provided to holders of
Claims against and Equity Interests in the Debtor and other parties in interest
in accordance with the Order
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1 Unless otherwise defined herein, capitalized terms used herein shall have the
meanings ascribed to them in the Plan.
of the Court dated September 15, 1997, setting the Confirmation Hearing (the
"Confirmation Hearing Order"), the Bankruptcy Code and the Bankruptcy Rules, as
established by the affidavits of service, mailing and publication filed with the
Court; and all objections to the Plan having been withdrawn, resolved or
overruled and denied as set forth in the record of the Confirmation Hearing; and
upon all of the proceedings had before the Court, and after due deliberation and
sufficient cause appearing therefor, it is hereby DETERMINED, FOUND, ADJUDGED,
DECREED and ORDERED:
JURISDICTION AND VENUE
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1. The Court has jurisdiction to confirm the Plan
pursuant to 28 U.S.C. ss.ss.157 and 1334.
2. Confirmation of the Plan is a core proceeding
pursuant to 28 U.S.C. ss. 157(b)(2)(L).
3. Venue of the Debtor's chapter 11 case is proper
pursuant to 28 U.S.C. ss.ss. 1408 and 1409.
4. The Debtor is an entity eligible for relief under
section 109 of the Bankruptcy Code.
5. Commencement of the Debtor's chapter 11 case and the
prosecution of the Plan represents a reasonable exercise of the business
judgment of the Debtor's board of directors.
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DISCLOSURE STATEMENT
SOLICITATION AND NOTICE
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6. The Disclosure Statement contains sufficient information of
a kind necessary to satisfy the disclosure requirements of all applicable
nonbankruptcy law, including, without limitation, the Securities Act of 1933, as
amended.
7. The Disclosure Statement contains "adequate information" as
defined in section 1125(a)(1) of the Bankruptcy Code and the solicitation of
votes to accept or reject the Plan was conducted in compliance with the
requirements of section 1126(b) of the Bankruptcy Code.
8. The procedures used to distribute the ballots were fair,
properly conducted and in accordance with all applicable Bankruptcy Rules. Votes
to accept and reject the Plan have been tabulated in good faith and in a manner
consistent with the Bankruptcy Code and the Bankruptcy Rules. All holders of
Claims and Equity interests entitled to vote pursuant to section 1126 of the
Bankruptcy Code received ballots to accept or reject the Plan.
9. The Disclosure Statement, the Plan, the ballots, the notice
of Confirmation Hearing and the Confirmation Hearing Order were transmitted and
served in compliance with the Bankruptcy Code, the Bankruptcy Rules and
applicable non-bankruptcy law. The transmittal and service as described in the
affidavits of service and the Certification by The Altman Group, Inc., Voting
Agent, of Acceptances of the Plan of
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Reorganization Pursuant to Rule 3018(b) of the Federal Rules of Bankruptcy
Procedure dated September 12, 1997 (the "Certification"), were adequate and
sufficient under the circumstances of this chapter 11 case. Adequate and
sufficient notice of the Confirmation Hearing and other requirements and
deadlines, hearings and matters described in the Confirmation Hearing Order were
given in compliance with the Bankruptcy Rules and the Confirmation Hearing
Order, and no other or further notice is required.
10. The period prescribed for creditors and equity security
holders to accept or reject the Plan, in excess of thirty (30) days, satisfied
the requirements of applicable nonbankruptcy law and the Bankruptcy Code.
CONFIRMATION OF THE PLAN
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11. The Plan complies with the applicable provisions of the
Bankruptcy Code and, as required by Bankruptcy Rule 3016(b), the Plan is dated
and identifies the Debtor as the proponent.
12. The Plan adequately and properly classifies all Claims and
Equity Interests.
13. The amendment to Schedule 7.1 of the Plan and the
revisions to the CHI Energy, Inc. 1997 Stock Option Plan and Management Option
Agreement are hereby approved and any holder of a claim or interest that has
accepted or rejected the Plan is hereby deemed to have accepted or rejected the
Plan, including such amendment and revisions.
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14. A reasonable basis exists for classification of Claims and
Equity Interests in the Plan. Claims and Equity Interests within each particular
class are substantially similar. The classification of Claims and Equity
Interests in the Plan is reasonable and necessary to implement the Plan.
15. Article III of the Plan identifies Classes 1, 2, 4, 5 and
6 as unimpaired, and Classes 3, 7, 8, 9, and 10 as impaired.
16. Article IV of the Plan specifies the treatment of each
Class of Claims and Equity Interests.
17. The Plan provides the same treatment for each Claim or
Equity Interest in each Class.
18. The Plan provides adequate means for its implementation.
19. The Debtor, as the proponent of the Plan, has complied
with the applicable provisions of the Bankruptcy Code.
20. The Plan has been proposed in good faith and not by any
means forbidden by law.
21. All payments made or to be made by the Debtor, or by a
person issuing securities or acquiring property under the Plan, for services or
for costs and expenses in or in connection with the chapter 11 case, or in
connection with the Plan and incident to the chapter 11 case, have been approved
by, or are subject to the approval of, the Court as reasonable.
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22. The identity, affiliations and compensation of the persons
proposed to serve as initial directors or officers of Reorganized CHI after
confirmation of the Plan have been fully disclosed, and the appointment to, or
continuance in, such offices of such persons is consistent with the interests of
holders of Claims against and Equity Interests in the Debtor and with public
policy.
23. The identity of any insider that will be employed or
retained by Reorganized CHI and the nature of such insider's compensation have
been fully disclosed.
24. After confirmation of the Plan, the Debtor's business will
not involve rates established or approved by, or otherwise subject to, any
governmental regulatory commission.
25. With respect to each impaired Class of Claims or Equity
interests, each holder of an impaired Claim or Equity Interest in such Class has
accepted the Plan or will receive or retain under the Plan property of a value,
as of the Effective Date, that is not less than the amount that such holder
would receive or retain if the Debtor were liquidated under chapter 7 of the
Bankruptcy Code on such date.
26. Based on the unrefuted testimony presented by the Debtor
and the liquidation analysis attached to the Disclosure Statement as Exhibit E,
the best interests test has been satisfied with respect to each holder of an
impaired Claim or Equity Interest.
27. Classes 1, 2, 4, 5 and 6 of the Plan are not impaired by
the Plan and, accordingly, are deemed to have accepted the Plan.
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28. Classes 3, 7, 8 and 9 of the Plan have voted to accept the
Plan, as established by the Certification.
29. Holders of Equity Interests in Class 10 will not receive
or retain any property on account of their Equity Interests under the Plan, and
accordingly, the holders of Equity Interests in Class 10 are deemed to have
rejected the Plan.
30. Except to the extent that the holder of an Allowed
Administrative Expense Claim of a kind specified in subsections 503(b)(2),
503(b)(3), 503(b)(4) or 503(b)(5) of the Bankruptcy Code has agreed to a
different treatment of such Claim, the Plan provides that the holder of such
Claim shall be paid in full in such amounts as are Allowed by the Bankruptcy
Court upon the later of (a) the Effective Date and (b) the date upon which an
order granting such Administrative Expense Claim is signed by the Bankruptcy
Court.
31. Except to the extent that any entity entitled to payment
of an Allowed Administrative Expense Claim agrees to a different treatment, the
Plan provides that each holder of an Allowed Administrative Expense Claim other
than Claims representing liabilities incurred in the ordinary course of business
shall receive Cash in an amount equal to such Allowed Administrative Expense
Claim on the later of the Effective Date and the date such Administrative
Expense Claim becomes an Allowed Administrative Expense Claim, or as soon
thereafter as is practicable; provided, however, that Allowed Administrative
Expense Claims representing liabilities incurred in the ordinary course of
business by the Debtor in Possession or liabilities arising under loans or
advances to or other obligations incurred by
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the Debtor in Possession, to the extent authorized and approved by the
Bankruptcy Court if such authorization and approval was required under the
Bankruptcy Code, shall be paid in full and performed by Reorganized CHI in the
ordinary course of business in accordance with the terms and subject to the
conditions of any agreements governing instruments evidencing or other documents
relating to, such transactions.
32. Except to the extent that a holder of an Allowed Priority
Tax Claim has been paid by the Debtor prior to the Effective Date or agrees to a
different treatment, at the Debtor's option, the Plan provides that each holder
of an Allowed Priority Tax Claim (a) shall be paid in full by Reorganized CHI in
the ordinary course of business in accordance with the terms and conditions of
any law, regulation, agreement, instrument or other document relating to such
Claim or (b) shall receive on account of such Allowed Claim deferred Cash
payments having a value, as of the Effective Date, equal to such Allowed
Priority Tax Claim, over a period not exceeding six years after the date of
assessment of such Allowed Priority Tax Claim.
33. (a) Notwithstanding anything contained in this Order or
the Plan to the contrary, all claims of any United States governmental unit,
department, agency, or instrumentality represented now or hereinafter by the
United States Department of Justice (collectively, "United States Claims") are
unimpaired by the Plan. On the Effective Date, all Allowed United States Claims
will be paid in full. Notwithstanding the provisions of Article I, Paragraph 1.2
of the Plan, the United States shall have an Allowed United States Claim if
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agreement as to the amount, nature and treatment of any United States Claim is
reached between the Debtor and the United States prior to the Confirmation Date.
(b) Notwithstanding anything contained in this Order or the
provisions of Article I, Paragraph 1.2 of the Plan, any United States Claim not
treated as an Allowed United States Claim shall survive the Confirmation Date
and consummation of the Plan as if the reorganization case had not been
commenced and shall not be discharged pursuant to section 1141(d) of the
Bankruptcy Code. The Plan shall leave unaltered the legal, equitable and
contractual rights to which each United States Claim is entitled in accordance
with section 1124 of the Bankruptcy Code. The United States' rights, if any, to
payment with respect to any United States Claim shall be determined in the
manner and by the administrative or judicial tribunals in which the amount of
such claim and the United States' rights would have been resolved or adjudicated
if the reorganization case had not been commenced.
34. At least one class of claims that is impaired under the
Plan has accepted the Plan, determined without including any acceptance of the
Plan by any insider.
35. Confirmation of the Plan is not likely to be followed by
the liquidation, or the need for further financial reorganization, of
Reorganized CHI.
36. The Plan provides that all fees payable pursuant to
section 1930 of the title 28 of the United States Code, as determined by the
Bankruptcy Court at the Confirmation Hearing, shall be paid on the Effective
Date.
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37. The Plan provides for the continuation after the Effective
Date of the payment of all retiree benefits, if any, that have been maintained
or established by the Debtor prior to the Commencement Date, for the duration of
the period the Debtor has obligated itself to provide such benefits.
38. Based on the unrefuted testimony presented by the Debtor,
the reorganization value of Reorganized CHI, is in the range of approximately
$85.8 million to $114.9 million with a midpoint of $100.1 million.
39. The Plan does not discriminate unfairly and is fair and
equitable with respect to Class 10. Upon confirmation and the occurrence of the
Effective Date, the Plan shall be binding upon the holders of the Equity
Interests of Class 10.
40. It appears that each of the conditions precedent to the
effectiveness of the Plan as set forth in Section 11.1 thereof, other than the
condition set forth in section 11.1(b) of the Plan, will be satisfied.
41. CHI, upon the written consent of the Unofficial
Bondholders' Committee, has duly and properly waived, in accordance with section
11.3 of the Plan, the condition set forth in section 11.1(b) of the Plan.
42. Section 10.4 of the Plan provides that the Amended CHI
By-Laws and the Restated CHI Certificate of Incorporation shall become effective
as of the Effective Date and shall, among other things, (a) prohibit the
issuance of nonvoting equity securities, subject to further amendment of such
certificate of incorporation and by-laws as permitted by
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applicable law, (b) effectuate the provisions of the Plan, in each case without
any further action by the shareholders or directors of CHI, the Debtor in
Possession or Reorganized CHI, and (c) provide that the name of CHI shall be
changed to CHI Energy, Inc.
43. All objections to confirmation are overruled and denied.
Pursuant to section 1129 of the Bankruptcy Code, the Plan hereby is confirmed.
The terms of the Plan are incorporated by reference into, and are an integral
part of, this Order.
44. Any distributions under the Plan that are unclaimed for a
period of one year after distribution thereof shall be revested in Reorganized
CHI and any entitlement of any holder of any Allowed Claim or Allowed Equity
Interest to such distributions shall be discharged and forever barred.
45. Except as otherwise provided in the Plan or this Order, in
accordance with section 1141(d)(1) of the Bankruptcy Code, entry of this Order
acts as a discharge of the Debtor, effective as of the Effective Date of all
debts of, Claims against and Equity Interests in the Debtor. The discharge of
the Debtor shall be effective as to each Claim, regardless of whether (a) a
proof of Claim therefor was filed or deemed filed under section 501 of the
Bankruptcy Code, (b) the Claim is an Allowed Claim under section 502 of the
Bankruptcy Code or (c) the holder thereof voted to accept the Plan. Except as
otherwise provided in the Plan and this Order, on and after the Effective Date,
as to every discharged debt, Claim and Equity Interest, any holder of such debt,
Claim or Equity Interest shall be precluded from asserting against the Debtor or
Reorganized CHI, or its assets or properties,
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any other or further debt, Claim or Equity Interest based upon any document,
instrument, act, omission, transaction, or other activity of any kind or nature
that occurred before the date of the entry of this Order.
46. The Debtor's estate shall continue to exist until the
Effective Date and, except as otherwise provided in the Plan, on the Effective
Date, in accordance with sections 1141(b) and 1141(c) of the Bankruptcy Code,
all property of the Debtor's estate and all other property dealt with by the
Plan shall be vested in Reorganized CHI free and clear of all Claims, liens,
charges, encumbrances and Equity Interests in the Debtor.
47. Subject only to the occurrence of the Effective Date, any
judgment at any time obtained, to the extent that such judgment is a
determination of personal liability of the Debtor with respect to any debt or
Claim discharged hereunder, shall be rendered null and void.
48. All injunctions or stays provided for in the chapter 11
case pursuant to section 362 of the Bankruptcy Code or otherwise extant on the
date of entry of this Order shall remain in full force and effect until the
Effective Date, at which time such injunctions or stays shall dissolve and be of
no force or effect.
49. Subject to the occurrence of the Effective Date, except as
hereinafter provided, the commencement or continuation of any action, the
employment of process, or any other act to collect, recover or offset any debt
or Claim discharged hereunder as a liability of the Debtor or from property of
the Debtor, shall be permanently enjoined, stayed
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and restrained. On the Effective Date, except as otherwise provided in the Plan
and this Order, the holders of all Claims and Equity Interests shall be
enjoined, stayed and restrained from asserting against the Debtor and
Reorganized Debtor, its assets or properties or any property dealt with under
the Plan, any other or further Claim based upon any act or omission, transaction
or other activity of any kind or nature that occurred prior to the Confirmation
Date.
50. Subject only to the occurrence of the Effective Date,
pursuant to Section 7.1 of the Plan, as amended, the assumption of all executory
contracts and unexpired leases that exist between the Debtor and any person is
hereby approved in all respects pursuant to sections 365(a), 365(f) and
1123(b)(2) of the Bankruptcy Code, except for those contracts and leases (a)
that have been assumed pursuant to an order of the Court entered prior to the
Confirmation Date, (b) that have been rejected pursuant to an order of the Court
entered prior to the Confirmation Date, (c) as to which a motion for approval of
the rejection of such contract or lease has been filed and served prior to the
Confirmation Date or (d) that are set forth in Schedule 7.1 to the Plan, as
amended, each of which is deemed rejected and canceled by the Debtor as of the
Confirmation Date. The Court shall retain jurisdiction to determine any dispute
as to the amount of defaults, if any, required to be cured pursuant to section
365(b)(1) of the Bankruptcy Code with respect to any executory contract or
unexpired lease assumed pursuant to the Plan or pursuant to an order of the
Court.
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51. Proofs of any Claim arising out of the rejection of an
executory contract or unexpired lease pursuant to Section 7.1 of the Plan, as
amended, shall be filed with the Court and served upon the attorneys for the
Debtor no later than thirty (30) days after notice of entry of this Order. Such
proofs of Claim shall be filed in fixed, liquidated amounts, but may be filed in
estimated amounts. Any proofs of Claim not filed within such time shall be
forever barred from assertion against the Debtor and Reorganized CHI and its
property, successors and assigns.
52. The Court shall retain jurisdiction in accordance with
(and as limited by) Article XIII of the Plan and section 1142 of the Bankruptcy
Code.
53. The Distribution Record Date for purposes of distribution
to holders of Allowed Claims and Allowed Equity Interests is hereby fixed as the
date which is three (3) business days from and after the date this Order is "so
ordered."
54. All distributions of Cash, New Common Stock, New Warrants
and Management Options required to be made by or for the benefit of the Debtor
pursuant to the Plan shall be made within the time provided by the Plan and
shall be deemed timely and proper if mailed by first class mail on or before the
distribution dates set forth in the Plan to the last known address of the
persons entitled thereto or as otherwise specifically provided in the Plan. As
of the close of business on the Distribution Record Date, the claims register
(for Claims) and the transfer ledgers (for Equity Interests) shall be closed,
and there shall be
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no further changes in the record holders of any Claims or Equity Interests. The
Debtor and Reorganized CHI shall have no obligation to recognize any transfer of
any Claims or Equity Interests occurring after the Distribution Record Date. The
Debtor and Reorganized CHI shall instead be entitled to recognize and deal for
all purposes under the Plan with only those record holders stated on the claims
register (for Claims) and transfer ledgers (for Equity Interests) as of the
close of business on the Distribution Record Date.
55. Pursuant to sections 1123(a) and 1142(a) of the Bankruptcy
Code and the provisions of this Order, the Plan and all Plan-related documents
shall apply and be enforceable notwithstanding any otherwise applicable
non-bankruptcy law.
56. All releases of, and exculpation provisions relating to,
claims and causes of action against the Releasees and non-Debtor persons and
entities that are embodied in the Plan are fair and equitable and given for
valuable consideration and are in the best interests of the Debtor and all
parties in interest, and the releases and exculpation provisions shall be
effective and binding on all persons and entities; provided, however, that
release provided in the Plan shall not constitute or be deemed a release of any
non-derivative personal claims or causes of action of any holder of an Equity
Interest and further that no Releasee shall be released from any act or omission
that constituted non-derivative wilful misconduct, actual fraud or criminal
behavior; provided, further, however that any claim for such conduct must be
pursued and filed within 6 months of the Effective Date and if no action is
filed within such time, such claims shall be released.
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57. Reorganized CHI and its directors, officers, agents and
attorneys, are authorized and empowered to issue, execute, deliver, file or
record any agreement, document or security, including, without limitation, the
documents annexed to the Plan, as modified, amended and supplemented, in
substantially the form included therein, and to take any action necessary or
appropriate to implement, effectuate and consummate the Plan in accordance with
its terms, or take any or all corporate actions authorized to be taken pursuant
to the Plan, including any release, amendment or restatement of any bylaws or
certificates of incorporation of the Debtor, whether or not specifically
referred to in the Plan or any exhibit thereto, without further order of the
Court, and any or all such documents shall be accepted by each of the respective
state filing offices and recorded in accordance with applicable state law and
shall become effective in accordance with their terms and the provisions of
state law.
58. Based on the record before the Court in this chapter 11
case, the Debtor, the Unofficial Bondholders' Committee and each of its
directors, officers, employees, shareholders, representatives, members,
attorneys, accountants and other advisors have acted in "good faith" within the
meaning of section 1125(e) of the Bankruptcy Code in compliance with the
applicable provisions of the Bankruptcy Code and Bankruptcy Rules in connection
with all of their respective activities relating to the solicitation of
acceptances to the Plan and their participation in the activities described in
section 1125(e) of the Bankruptcy Code.
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59. Based upon the record of the chapter 11 case, including
the instruments annexed to the Plan (and any amendments thereto), the New Common
Stock and the New Warrants to be issued pursuant to the Plan and the New Common
Stock to be issued upon exercise of the New Warrants shall be validly issued and
upon their distribution pursuant to the Plan, shall constitute valid, binding
and enforceable obligations of Reorganized CHI, and shall be fully paid and
nonassessable.
60. All exhibits to the Plan (including any amendments,
modifications and supplements thereto) and all documents and agreements
introduced into evidence by the Debtor at the Confirmation Hearing (including
all exhibits and attachments thereto and documents referred to therein) and the
execution, delivery and performance thereof by Reorganized CHI are approved in
accordance with their respective terms, including but not limited to the (a)
By-Laws of CHI Energy, Inc., (b) Restated Certificate of Incorporation of
Consolidated Hydro, Inc., (c) Employment Agreement, (d) CHI Energy, Inc. 1997
Stock Option Plan and Management Option Agreements, (e) Series B Warrant
Agreement, (f) Series C Warrant Agreement, (g) Registration Rights Agreement,
and (h) Stockholders' Agreement.
61. Without need for a further order or authorization of the
Court, the Debtor or Reorganized CHI is authorized and empowered to make any and
all modifications to any and all documents annexed to the Plan that do not
materially modify the terms of such
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documents and are consistent with the Plan, provided that such modifications are
reasonably acceptable to the Unofficial Bondholders' Committee.
62. Pursuant to Section 4.6 of the Plan, each Allowed
Intercompany Claim shall be reinstated or rendered unimpaired in accordance with
section 1124 of the Bankruptcy Code, unless, and to the extent, that a holder of
an Allowed Intercompany Claim agrees to a different and lesser treatment. CHI is
hereby authorized to provide different treatment to, or otherwise engage in
restructuring transactions with, a holder of an Allowed Intercompany Claim that
would result in the reduction or elimination of any or all of such Claims on or
as soon as practicable after the Effective Date. CHI is hereby permitted to
merge with CHI Finance, Inc, on or as soon as practicable after the Effective
Date, with CHI as the surviving corporation, pursuant to which merger (and in
accordance herewith) any Allowed Intercompany Claim then held by CHI Finance,
Inc, against CHI shall be extinguished.
63. All actions authorized to be taken pursuant to the Plan,
including, without limitation, the amendment and restatement of the certificate
of incorporation or bylaws of the Debtor, shall be effective on or prior to the
Effective Date pursuant to this Order, without further application to, or order
of the Court, or further action by the respective officers, directors, members
or stockholders of Reorganized CHI and with the effect that such actions had
been taken by unanimous action of such officers, directors, members or
stockholders.
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64. This Order shall constitute all approvals and consents
required, if any, by the laws, rules or regulations of any State or any other
governmental authority with respect to the implementation or consummation of the
Plan and any documents, instruments or agreements, and any amendments or
modifications thereto, and any other acts referred to in or contemplated by the
Plan, the Disclosure Statement and any documents, instruments or agreements, and
any amendments or modifications thereto.
65. By operation of section 1145 of the Bankruptcy Code, the
offering, sale, issuance and distribution of New Common Stock and New Warrants
(including the New Common Stock issuable upon exercise of the New Warrants)
(collectively, the "Plan Securities") under the Plan to holders of Claims
against, and Equity Interests in, the Debtor with respect to such Claims and
Equity Interests (or, in the case of the New Common Stock issuable upon exercise
of the New Warrants to the holders of such New Warrants), shall be exempt from
registration under the Securities Act of 1933, as amended, and any state or
local law requiring registration for offer or sale of a security or registration
or licensing of an issuer of, or broker or dealer in, a security.
66. All Plan Securities shall be freely transferable by the
initial recipients thereof (a) except for any restrictions set forth in section
1145(b) of the Bankruptcy Code and (b) subject to any restrictions contained in
the terms of such securities themselves, in the Plan, the Stockholders'
Agreement or any documents relating to the Plan or executed in connection with
the effectiveness thereof.
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67. The entry of this Order constitutes approval of the
Management Stock Option Plan for all purposes, including without limitation, for
purposes of compliance with Rule 16b-3 issued under the Securities Exchange Act
of 1934, as amended.
68. Pursuant to section 1146(c) of the Bankruptcy Code, the
issuance, transfer or exchange of notes or equity securities under the Plan, or
the making or delivery of instrument of transfer under, in furtherance of, or in
connection with the Plan, including, without limitation, any merger agreements
or agreements of consolidation, bills of sale or assignments executed in
connection with any of the transactions contemplated under the Plan, shall not
be subject to any stamp or other similar tax.
MISCELLANEOUS
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69. The Debtor and Reorganized CHI may file with the Court and
serve upon the appropriate holders objections to Administrative Expense Claims,
Claims and Equity Interests as soon as practicable, but in no event later than
30 days after the Effective Date.
70. Any person or entity seeking an allowance of final
compensation or reimbursement of expenses for professional services rendered to
the Debtor or in relation to this case pursuant to sections 327, 328, 330, 331,
503(b) and 1103 of the Bankruptcy Code shall file and serve an application for
allowance of final compensation for services rendered and reimbursement of
related expenses incurred on or before the Effective Date in or in
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connection with this case (each, an "Application"), on each of the following
entities not later than forty-five (45) days after the Effective Date:
Weil, Gotshal & Manges LLP
Attorneys for the Debtor
767 Fifth Avenue
New York, New York 10153
Attention: Lori R. Fife, Esq.
Richards, Layton & Finger, P.A.
One Rodney Square
P.O. Box 551
Wilmington, Delaware 19899
Attention: Thomas L. Ambro, Esq.
Consolidated Hydro, Inc.
680 Washington Boulevard, 5th Floor
Stamford, Connecticut 06901
Attention: Mr. Edward M. Stern
Wachtell, Lipton, Rosen & Katz
Attorneys for the Unofficial Bondholders' Committee
51 West 52nd Street
New York, New York 10019
Attention: Chaim J. Fortgang, Esq.
Office of the United States Trustee
Curtis Center, Suite 950 West
601 Walnut Street
Philadelphia, Pennsylvania 19106
Attention: John D. Mclaughlin, Esq.
71. A hearing to consider the Applications so served and filed
shall be held before the Court on December 29, 1997 at 9:00 a.m., or as soon
thereafter as counsel may be heard, in Courtroom 6B, United States District
Court for the District of Delaware, 844
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King Street, Wilmington, Delaware 19801 (the "Final Fee Hearing"), or on such
adjourned date and time as may be announced at the Final Fee Hearing.
72. Each Application shall comply with the applicable
provisions of the Bankruptcy Code, the Bankruptcy Rules and the Local Bankruptcy
Rules, and shall set forth, among other things, in reasonable detail, (i) the
name and address of the applicant, (ii) the nature of the professional or other
services rendered and expenses for which reimbursement is requested for all
periods from the date the particular applicant was retained through the
Effective Date, (iii) the amount of compensation and reimbursement of expenses
requested, (iv) whether any payments have been received on account and, if so,
the amount or amounts thereof, and (v) the amounts of compensation and
reimbursement of expenses previously allowed by the Court, if any.
73. No applications will be filed for compensation and
reimbursement by professional persons for services rendered or expenses incurred
on or after the Effective Date, and such compensation and reimbursement may be
paid by Reorganized CHI in accordance with ordinary business practices and
without order of the Court.
74. In the event that one or more of the conditions specified
in Section 11.1 of the Plan has not occurred, or been waived, on or before 60
days after the Confirmation Date, upon notification submitted by the Debtor to
the Court and counsel for the Unofficial Bondholders' Committee, (a) this Order
shall be vacated, (b) no distributions under the Plan shall be made, (c) the
Debtor and all holders of Claims and Equity Interests shall be restored
22
to the status quo ante as of the day immediately preceding the Confirmation Date
as though the Confirmation Date never occurred and (d) the Debtor's obligations
with respect to the Claims and Equity Interests shall remain unchanged and
nothing contained herein shall constitute or be deemed a waiver or release of
any Claims or Equity Interests by or against the Debtor or any other person or
to prejudice in any manner the rights of the Debtor or any person in any further
proceedings involving the Debtor.
75. The Plan and its provisions shall be binding upon the
Debtor, Reorganized CHI, any entity acquiring or receiving property or a
distribution under the Plan and any holder of a Claim against or Equity Interest
in the Debtor, including all governmental entities, whether or not the Claim or
Equity Interest of such holder is impaired under the Plan and whether or not
such holder or entity has accepted the Plan.
76. Pursuant to Bankruptcy Rule 9014, Bankruptcy Rule 7062
shall not apply to this Order.
77. The determinations, findings, judgments, decrees and
orders set forth herein constitute the Court's findings of fact and conclusions
of law pursuant to Bankruptcy Rule 7052, made applicable to this proceeding
pursuant to Bankruptcy Rule 9014. Each finding of fact set forth herein, to the
extent it is or may be deemed a conclusion of law,
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shall also constitute a conclusion of law. Each conclusion of law set forth
herein, to the extent it is or may be deemed a finding of fact, shall also
constitute a finding of fact.
Dated: October 23, 1997
Wilmington, Delaware
/s/ Sue L. Robinson
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United States District Judge
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