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EXHIBIT 2.1
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
In re: \
\
PENTACON, INC. \ CASE NO. 01-____________
\
PENTACON AEROSPACE GROUP, INC. \ CASE NO. 01-____________
\
PENTACON INDUSTRIAL GROUP, INC. \ CASE NO. 01-____________
\
PENTACON INTERNATIONAL SALES, INC. \ CASE NO. 01-____________
\
PENTACON DELAWARE, INC. \ CASE NO. 01-____________
\
JET HOLDINGS, INC. \ CASE NO. 01-____________
\
PENTACON PROPERTIES, L.P. \ CASE NO. 01-____________
\
PENTACON USA, L.P. \ CASE NO. 01-____________
\
Debtors \ (Motion for Joint Administration
\ pending)
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JOINT CHAPTER 11 PLAN OF DEBTORS
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HAYNES AND BOONE, LIP
1000 Louisiana, Suite 4300
Houston, Texas 77002
Telephone: (713) 547-2000
Facsimile: (713) 547-2600
DATED: May 23, 2002 ATTORNEYS FOR DEBTORS
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TABLE OF CONTENTS
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INTRODUCTION .............................................................................................1
ARTICLE I DEFINITIONS AND CONSTRUCTION OF TERMS..........................................................1
1.1 Scope of Definitions...........................................................................1
1.2 Definitions....................................................................................1
1.3 Rules of Interpretation and Construction.......................................................1
ARTICLE 2 CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS; IMPAIRMENT......................................2
2.1 Classification.................................................................................2
2.2 Identification of Classes - Pentacon...........................................................2
2.3 Identification of Classes - Pentacon Aerospace.................................................2
2.4 Identification of Classes - Pentacon Industrial................................................3
2.5 Identification of Classes - Pentacon International.............................................3
2.6 Identification of Classes - Pentacon Delaware..................................................3
2.7 Identification of Classes - JET Holdings.......................................................3
2.8 Identification of Classes - Pentacon Properties................................................4
2.9 Identification of Classes - Pentacon USA.......................................................4
2.10 Unimpaired Classes.............................................................................4
2.11 Impaired Classes...............................................................................4
ARTICLE 3 TREATMENT OF ADMINISTRATIVE CLAIMS, PROFESSIONAL FEE...........................................4
3.1 Administrative Claims Bar Date.................................................................4
3.2 Professional Fee Claims Bar Date...............................................................5
3.3 Administrative Tax Claim Bar Date..............................................................5
3.4 Payment of Administrative Claims and Professional Fee Claims...................................5
3.5 Payment of Post Petition Payables..............................................................6
3.6 Payment of Allowed Priority Unsecured Tax Claims...............................................6
3.7 U. S. Trustee Fees.............................................................................6
ARTICLE 4 PROVISIONS FOR TREATMENT OF ALLOWED CLAIMS AND EQUITY INTERESTS................................6
4.1 Treatment of Allowed Priority Unsecured Non-Tax Claims (Classes 1A,
1B, 1C, 1D, 1E, 1F, 1G, and 1H)............................................................... 6
4.2 Treatment of Allowed Secured Tax Claims (Classes 2A, 2B, 2C, 2D, 2E, 2F, 2G, and 2H)...........7
4.2.1 Determination of Allowed Secured Tax Claim.......................................7
4.2.2 Treatment of Allowed Secured Tax Claims..........................................7
4.2.3 Retention of Lien................................................................8
4.2.4 Deficiency Claim.................................................................8
4.3 Treatment of Allowed Secured Claims of Bank Lenders (Classes 3A, 3B, 3C, 3D, 3E, 3F,
3G, and 3H)....................................................................................8
4.4 Treatment of Allowed Other Secured Claims (Classes 4A, 4B, 4C, 4D, 4E, 4F, and 4G).............8
4.4.1 Determination of Allowed Other Secured Claims....................................8
4.4.2 Treatment of Allowed Other Secured Claims........................................9
4.4.3 Retention of Lien................................................................9
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4.4.4 Deficiency Claim.................................................................9
4.5 Treatment of Assumed General Unsecured Claims (Classes 5A, 5B, 5C, 5D, 5E, 5F, 5G, and 5H).....9
4.6 Treatment of Allowed Other General Unsecured Claims (Classes 6A, 6B, 6C, 6D, 6E, 6F, 6G,
and 6H)...................................................................................... 10
4.7 Treatment of Allowed Equity Interests (Classes 7A, 7B, 7C, 7D, 7E, 7F, 7G, and 7H)............10
ARTICLE 5 EXECUTORY CONTRACTS...........................................................................10
5.1 Assumption and Rejection......................................................................10
5.2 Approval of Assumption or Rejection...........................................................11
5.3 Rejection Claims..............................................................................11
ARTICLE 6 MEANS FOR IMPLEMENTATION OF THE PLAN..........................................................11
6.1 The Plan Agent................................................................................11
6.1.1 Selection of Plan Agent.........................................................11
6.1.2 Duties and Obligations of Plan Agent............................................12
6.2 The Closing...................................................................................12
6.2.1 Consummation of Sale to Purchaser...............................................12
6.2.2 Amendment of Debtors' Articles of Incorporation and By-Laws.....................13
6.2.3 Execution of Documents and Corporate Action.....................................13
6.2.4 Surrender of Instruments........................................................14
6.2.5 Establishment of Reserves and Other Accounts....................................14
6.2.5.1 Establishment of Sale Proceeds Account.................................14
6.2.5.2 Establishment of Administrative Claims Reserve.........................14
6.2.5.3 Establishment of Priority Claims Reserve...............................14
6.2.6 Discharge of Indenture and Cancellation of Senior Notes.........................15
6.3 Termination of the Committee..................................................................15
6.4 Bankruptcy Code Section 1145 Determination....................................................15
ARTICLE 7 GENERAL PROVISIONS GOVERNING DISTRIBUTIONS....................................................16
7.1 In General....................................................................................16
7.2 Distributions on Allowed Claims Only..........................................................16
7.3 Place and Manner of Payments or Distributions.................................................16
7.4 Undeliverable Distributions...................................................................16
7.5 Treatment of Unclaimed or Undeliverable Distributions.........................................17
7.6 Withholding...................................................................................17
7.7 Interest......................................................................................18
7.8 Distributions to Holders of Senior Notes......................................................18
7.8.1 Distributions...................................................................18
7.8.2 Record Date for Senior Notes....................................................19
ARTICLE 8 VESTING OF PROPERTY...........................................................................19
8.1 Retesting of Property.........................................................................19
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ARTICLE 9 DISCHARGE, RELEASE AND EXTINGUISHMENT OF LIENS, CLAIMS, INTERESTS, AND ENCUMBRANCES...........20
9.1 Discharge of Debtors..........................................................................20
9.2 Exculpation...................................................................................20
ARTICLE 10 INJUNCTION AGAINST ENFORCEMENT OF RECONFIRMATION DEBT.........................................21
10.1 Injunction Enjoining Holders of Claims Against Debtors........................................21
ARTICLE 11 EVENTS OF DEFAULT.............................................................................21
11.1 Events of Default.............................................................................21
11.2 Remedies for Defaults.........................................................................22
ARTICLE 12 PROVISIONS FOR THE RESOLUTION OF OBJECTIONS TO PROOFS OF CLAIM................................22
12.1 Right to Object to Claims.....................................................................22
12.2 Deadline for Objecting to Claims..............................................................22
12.3 Deadline for Responding to Claim Objections...................................................23
12.4 Estimation of Claims..........................................................................23
12.5 Notice of Claim Allowance.....................................................................23
ARTICLE 13 GENERAL PROVISIONS RELATING TO RESERVES.......................................................23
13.1 Administrative Claims Reserves................................................................23
13.2 Priority Claims Reserve.......................................................................24
13.3 Disputed Claims Reserve.......................................................................24
ARTICLE 14 PROVISIONS FOR THE RETENTION, ENFORCEMENT, COMPROMISE, OR ADJUSTMENT OF CLAIMS................25
14.1 Right to Enforce, Compromise, or Adjust Estate Claims.........................................25
ARTICLE 15 RETENTION OF JURISDICTION.....................................................................25
15.1 Retention of Jurisdiction.....................................................................25
ARTICLE 16 GENERAL PROVISIONS............................................................................26
16.1 Confirmation Order............................................................................26
16.2 Notices.......................................................................................27
16.3 Dates.........................................................................................28
16.4 Further Action................................................................................28
16.5 Exhibits......................................................................................28
16.6 Exemption from Transfer Taxes.................................................................29
16.7 Binding Effect................................................................................29
16.8 Governing Law.................................................................................29
16.9 Headings......................................................................................29
16.10 Rounding of Amounts...........................................................................29
16.11 Withdrawal or Revocation of the Plan..........................................................29
16.12 Reservation of Rights.........................................................................30
16.13 Defects, Omissions, and Amendments............................................................30
16.14 Good Faith....................................................................................31
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ARTICLE 17 SUBSTANTIAL CONSUMMATION......................................................................31
17.1 Substantial Consummation......................................................................31
17.2 Final Decree..................................................................................31
ARTICLE 18 CONTINGENCIES TO EFFECTIVENESS OF PLAN........................................................31
18.1 Contingencies.................................................................................31
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EXHIBITS TO PLAN
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Glossary of Defined Terms................................................................................Exhibit A
Asset Purchase Agreement dated May 23, 2002..............................................................Exhibit B
Plan Agent Provisions....................................................................................Exhibit C
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INTRODUCTION
Pentacon, Inc.; Pentacon Aerospace Group, Inc.; Pentacon Industrial Group,
Inc.; Pentacon International Sales, Inc.; Pentacon Delaware, Inc.; JET Holdings,
Inc.; Pentacon Properties, L.P.; and Pentacon USA, L.P., the debtors in these
jointly administered chapter 11 cases, propose this Joint Chapter 11 Plan under
Bankruptcy Code section 1121.
ARTICLE 1
DEFINITIONS AND CONSTRUCTION OF TERMS
1.1 SCOPE OF DEFINITIONS. All capitalized terms not defined elsewhere in
the Plan have the meanings prescribed in section 1.2 of the Plan. Any
capitalized term used in the Plan that is not defined in the Plan has the
meaning ascribed to that term in the Bankruptcy Code or the Bankruptcy Rules,
whichever is applicable.
1.2 DEFINITIONS. Defined terms are set forth in the Glossary of Defined
Terms, which is attached as EXHIBIT A to the Plan.
1.3 RULES OF INTERPRETATION AND CONSTRUCTION. For purposes of the Plan,
(i) any reference in the Plan to an existing document or exhibit filed or to be
filed means that document or exhibit as it may have been or may be amended,
modified, or supplemented; (ii) unless otherwise specified, all references in
the Plan to sections, articles, and exhibits are references to sections,
articles, or exhibits to the Plan; (iii) the words "herein," "hereof," "hereto,"
"hereunder," and other words of similar import refer to the Plan in its entirety
and not to any particular portion the Plan; (iv) captions and headings contained
in the Plan are inserted for convenience and reference only, and are not
intended to be part of or to affect the interpretation of the Plan; (v) wherever
appropriate from the context, each term stated in either the singular or the
plural shall include the singular and the plural, and pronouns stated in the
masculine, feminine, or neuter gender shall include the masculine, feminine, and
neuter gender; and (vi) the
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rules of construction outlined in section 102 of the Bankruptcy Code and in the
Bankruptcy Rules shall apply to the Plan.
ARTICLE 2
CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS; IMPAIRMENT
2.1 CLASSIFICATION. Pursuant to Bankruptcy Code section 1122, a Claim or
Equity Interest is placed in a particular Class for purposes of voting on the
Plan and receiving Distributions under the Plan only to the extent (I) the Claim
or Equity Interest is an Allowed Claim or Allowed Equity Interest in that Class
and (ii) the Claim or Equity Interest has not been paid, released, or otherwise
compromised before the Effective Date. A Claim or Equity Interest shall be
classified in a different Class to the extent it qualifies within the definition
of that different Class. In accordance with Bankruptcy Code section 1123(a)(1),
Administrative Claims, Professional Fee Claims, and Priority Unsecured Tax
Claims are not classified under the Plan.
2.2 IDENTIFICATION OF CLASSES - PENTACON. The following are the
designations for the Classes of Claims against and Equity Interests in Pentacon:
Class 1A Allowed Priority Unsecured Non-Tax Claims
Class 2A Allowed Secured Tax Claims
Class 3A Allowed Secured Claims of the Bank Lenders
Class 4A Allowed Other Secured Claims
Class 5A Allowed Assumed General Unsecured Claims
Class 6A Allowed Other General Unsecured Claims
Class 7A Allowed Equity Interests
2.3 IDENTIFICATION OF CLASSES - PENTACON AEROSPACE. The following are the
designations for the Classes of Claims against and Equity Interests in Pentacon
Aerospace:
Class 1B Allowed Priority Unsecured Non-Tax Claims
Class 2B Allowed Secured Tax Claims
Class 3B Allowed Secured Claims of the Bank Lenders
Class 4B Allowed Other Secured Claims
Class 5B Allowed Assumed General Unsecured Claims
Class 6B Allowed Other General Unsecured Claims
Class 7B Allowed Equity Interests
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2.4 IDENTIFICATION OF CLASSES - PENTACON INDUSTRIAL. The following are the
designations for the Classes of Claims against and Equity Interests in Pentacon
Industrial:
Class 1C Allowed Priority Unsecured Non-Tax Claims
Class 2C Allowed Secured Tax Claims
Class 3C Allowed Secured Claims of the Bank Lenders
Class 4C Allowed Other Secured Claims
Class 5C Allowed Assumed General Unsecured Claims
Class 6C Allowed Other General Unsecured Claims
Class 7C Allowed Equity Interests
2.5 IDENTIFICATION OF CLASSES - PENTACON INTERNATIONAL. The following are
the designations for the Classes of Claims against and Equity Interests in
Pentacon International:
Class 1D Allowed Priority Unsecured Non-Tax Claims
Class 2D Allowed Secured Tax Claims
Class 3D Allowed Secured Claims of the Bank Lenders
Class 4D Allowed Other Secured Claims
Class 5D Allowed Assumed General Unsecured Claims
Class 6D Allowed Other General Unsecured Claims
Class 7D Allowed Equity Interests
2.6 IDENTIFICATION OF CLASSES - PENTACON DELAWARE. The following are the
designations for the Classes of Claims against and Equity Interests in Pentacon
Delaware:
Class 1E Allowed Priority Unsecured Non-Tax Claims
Class 2E Allowed Secured Tax Claims
Class 3E Allowed Secured Claims of the Bank Lenders
Class 4E Allowed Other Secured Claims
Class 5E Allowed Assumed General Unsecured Claims
Class 6E Allowed Other General Unsecured Claims
Class 7E Allowed Equity Interests
2.7 IDENTIFICATION OF CLASSES - JET HOLDINGS. The following are the
designations for the Classes of Claims against and Equity Interests in JET
Holdings:
Class 1F Allowed Priority Unsecured Non-Tax Claims
Class 2F Allowed Secured Tax Claims
Class 3F Allowed Secured Claims of the Bank Lenders
Class 4F Allowed Other Secured Claims
Class 5F Allowed Assumed General Unsecured Claims
Class 6F Allowed Other General Unsecured Claims
Class 7F Allowed Equity Interests
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2.8 IDENTIFICATION OF CLASSES - PENTACON PROPERTIES. The following are the
designations for the Classes of Claims against and Equity Interests in Pentacon
Properties:
Class 1G Allowed Priority Unsecured Non-Tax Claims
Class 2G Allowed Secured Tax Claims
Class 3G Allowed Secured Claims of the Bank Lenders
Class 4G Allowed Other Secured Claims
Class 5G Allowed Assumed General Unsecured Claims
Class 6G Allowed Other General Unsecured Claims
Class 7G Allowed Equity Interests
2.9 IDENTIFICATION OF CLASSES - PENTACON USA. The following are the
designations for the Classes of Claims against and Equity Interests in Pentacon
USA:
Class 1H Allowed Priority Unsecured Non-Tax Claims
Class 2H Allowed Secured Tax Claims
Class 3H Allowed Secured Claims of the Bank Lenders
Class 4H Allowed Other Secured Claims
Class 5H Allowed Assumed General Unsecured Claims
Class 6H Allowed Other General Unsecured Claims
Class 7H Allowed Equity Interests
2.10 UNIMPAIRED CLASSES. Claims in Classes 1A, 1B, 1C, 1D, 1E, 1F, 1G, and
1H are not Impaired under the Plan. Under Bankruptcy Code section 1126(f),
holders of Claims in those Classes are conclusively presumed to have accepted
the Plan, and therefore are not entitled to vote to accept or reject the Plan.
2.11 IMPAIRED CLASSES. Except for the Claims in Classes 1A, 1B, 1C, 1D, 1E,
1F, 1G, and 1H, all Claims and Equity Interests are Impaired under the Plan.
Holders of Claims and Equity Interests in the Impaired Classes are entitled to
vote to accept or reject the Plan.
ARTICLE 3
TREATMENT OF ADMINISTRATIVE CLAIMS, PROFESSIONAL FEE
CLAIMS, AND ALLOWED PRIORITY UNSECURED TAX CLAIMS
3.1 ADMINISTRATIVE CLAIMS BAR DATE. All applications or other requests for
payment of Administrative Claims (except Post Petition Payables and Professional
Fee Claims) arising on or
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before the Confirmation Date must be filed with the Bankruptcy Court and served
on the Debtors, the U. S. Trustee, and any Committee within thirty (30) days
after the Effective Date, or by such earlier deadline governing a particular
Administrative Claim contained in an order of the Bankruptcy Court entered
before the Confirmation Date. Any Administrative Claim (except Post Petition
Payables and Professional Fee Claims) for which an application or request for
payment is not filed within the above-referenced time period shall be discharged
and forever barred.
3.2 PROFESSIONAL FEE CLAIMS BAR DATE. All applications or other requests
for payment of Professional Fee Claims arising on or before the conclusion of
the Closing must be filed with the Bankruptcy Court and served on the Debtors,
the U. S. Trustee, and any Committee within forty-five (45) days after the
Closing Date. Any such Professional Fee Claims for which an application or other
request for payment is not filed within that time period shall be discharged and
forever barred.
3.3 ADMINISTRATIVE TAX CLAIM BAR DATE. Notwithstanding section 3.1 of the
Plan, any application or other request for payment of an Administrative Tax
Claim must be filed with the Bankruptcy Court and served on the Debtors, the
U.S. Trustee, and any Committee within forty-five (45) days after the Effective
Date. Any Administrative Tax Claim for which an application or other request for
payment is not filed within the applicable time period shall be discharged and
forever barred.
3.4 PAYMENT OF ADMINISTRATIVE CLAIMS AND PROFESSIONAL FEE CLAIMS. Allowed
Administrative Claims (except Post Petition Payables and Professional Fee
Claims) arising through the Confirmation Date shall be paid from the
Administrative Expense Reserve within ten (10) days after the Allowance Date.
Allowed Professional Fee Claims arising through the
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conclusion of the Closing shall be paid within ten (10) days after the Allowance
Date (i) first from the balance of any retainers held by Professionals until
fully exhausted, (ii) second from the balance of any reserve accounts
established under any order of the Bankruptcy Court governing the payment of
Professional Fees until fully exhausted, and (iii) third from the Administrative
Expense Reserve.
3.5 PAYMENT OF POST PETITION PAYABLES. Post Petition Payables shall be
assumed by the Purchaser under the Asset Purchase Agreement and paid by the
Purchaser pursuant to the existing payment terms and conditions (whether arising
under an agreement, applicable law, or otherwise) governing any particular Post
Petition Payable.
3.6 PAYMENT OF ALLOWED PRIORITY UNSECURED TAX CLAIMS. Allowed Priority
Unsecured Tax Claims assumed by the Purchaser under the Asset Purchase Agreement
shall be paid by the Purchaser in accordance with any existing payment terms and
conditions arising under any applicable law, rule or regulation governing such
Claims. Any Allowed Priority Unsecured Tax Claims not assumed by the Purchaser
under the Asset Purchase Agreement shall be paid in full from the Priority
Claims Reserve on the later of (i) the Effective Date or (ii) ten (10) days
after the Allowance Date.
3.7 U. S. TRUSTEE FEES. After the Closing Date and until the Bankruptcy
cases are closed, all fees incurred under 28 U.S.C. Section 1930(a)(6) shall be
paid from the Administrative Claim Reserve.
ARTICLE 4
PROVISIONS FOR TREATMENT OF ALLOWED CLAIMS AND EQUITY INTERESTS
4.1 TREATMENT OF ALLOWED PRIORITY UNSECURED NON-TAX CLAIMS (CLASSES 1A,
1B, 1C, 1D, 1E, 1F, 1G, AND 1H). Allowed Priority Unsecured Non-Tax Claims
assumed by the Purchaser under the Asset Purchase Agreement shall be paid by the
Purchaser pursuant to the
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existing payment terms and conditions (whether arising under an agreement,
applicable law, or otherwise) governing any particular Priority Unsecured
Non-Tax Claim. Any Allowed Priority Unsecured Non-Tax Claim not assumed by the
Purchaser shall be paid from the Priority Claims Reserve on the later of (i) the
Effective Date or (ii) ten (10) days after the Allowance Date.
4.2 TREATMENT OF ALLOWED SECURED TAX CLAIMS (CLASSES 2A, 2B, 2C, 2D, 2E,
2F, 2G, AND 2H).
4.2.1 DETERMINATION OF ALLOWED SECURED TAX CLAIM. If there is more
than one Allowed Secured Tax Claim in a particular Class, then each Allowed
Secured Tax Claim in that Class shall be classified in a separate subclass.
The Plan Agent may seek a determination regarding the allowability of any
Secured Tax Claim not assumed by the Purchaser under the Bankruptcy Code
and the Bankruptcy Rules. The Plan Agent, at its sole option, may initiate
litigation seeking a determination of the amount, extent, validity, and
priority of any Liens securing any Secured Tax Claim not assumed by the
Purchaser.
4.2.2 TREATMENT OF ALLOWED SECURED TAX CLAIMS. Allowed Secured Tax
Claims assumed by the Purchaser under the Asset Purchase Agreement shall be
paid by the Purchaser in accordance with the existing payment terms and
conditions (whether arising under any applicable law, rule or regulation),
governing any particular Allowed Secured Tax Claim. Any Allowed Secured Tax
Claim not assumed by the Purchaser shall be satisfied in full at the
election of the Plan Agent by (i) the transfer of any Estate Property
constituting the collateral of the holder of the Allowed Secured Tax Claim
to the extent of the amount of such Allowed Claim or (ii) an agreement
between the Plan Agent and the holder of an Allowed Secured Tax Claim. Any
Estate Property securing an Allowed Secured Tax Claim remaining after full
satisfaction of that Claim shall remain Estate Property free and clear of
all Liens.
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4.2.3 RETENTION OF LIEN. Each holder of an Allowed Secured Tax Claim
not assumed by the Purchaser under the Asset Purchase Agreement shall
retain any Liens securing the Allowed Secured Tax Claim until such Claim is
satisfied in accordance with the Plan, or until an earlier date agreed to
by the holder of the Allowed Secured Tax Claim and the Plan Agent.
4.2.4 DEFICIENCY CLAIM. If the holder of an Allowed Secured Tax
Claim not assumed by the Purchaser under the Asset Purchase Agreement has a
deficiency claim, such Claim shall be treated (as determined by the
Bankruptcy Court) under the Plan as either (i) a Class 6 Other General
Unsecured Claim or (ii) a Priority Unsecured Tax Claim.
4.3 TREATMENT OF ALLOWED SECURED CLAIMS OF BANK LENDERS (CLASSES 3A, 3B,
3C, 3D, 3E, 3F, 3G, AND 3H). The Allowed Secured Claims of Bank Lenders (whether
arising under the Pre-Petition Credit Facility, the Post-Petition Credit
Facility, or otherwise) shall be paid in full from the Sale Proceeds on the
Closing Date.
4.4 TREATMENT OF ALLOWED OTHER SECURED CLAIMS (CLASSES 4A, 4B, 4C, 4D, 4E,
4F, AND 4G).
4.4.1 DETERMINATION OF ALLOWED OTHER SECURED CLAIMS. If there is more
than one Allowed Other Secured Claim in a particular Class, then each
Allowed Other Secured Claim in that Class shall be classified in a separate
subclass. The Plan Agent may seek a determination regarding the
allowability of any Other Secured Claim not assumed by the Purchaser under
the Bankruptcy Code and the Bankruptcy Rules. The Plan Agent, at its sole
option, may initiate litigation seeking a determination of the amount,
extent, validity, and priority of any Liens securing any Other Secured
Claim not assumed by the Purchaser.
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4.4.2 TREATMENT OF ALLOWED OTHER SECURED CLAIMS. Allowed Other Secured
Claims assumed by the Purchaser under the Asset Purchase Agreement shall be
paid by the Purchaser in accordance with the existing payment terms and
conditions (whether arising under an agreement, applicable law, or
otherwise) governing any particular Allowed Other Secured Claim. Any
Allowed Other Secured Claim not assumed by the Purchaser shall be satisfied
in full at the election of the Plan Agent by (i) the transfer of any Estate
Property constituting the collateral of the holder of the Allowed Other
Secured Claim to the extent of the amount of such Allowed Claim or (ii) an
agreement between the Plan Agent and the holder of an Allowed Other Secured
Claim. Any Estate Property securing an Allowed Other Secured Claim
remaining after full satisfaction of that Claim shall remain Estate
Property free and clear of all Liens.
4.4.3 RETENTION OF LIEN. Each holder of an Allowed Other Secured Claim
not assumed by the Purchaser under the Asset Purchase Agreement shall
retain any Liens securing the Allowed Other Secured Claim until such Claim
is satisfied in accordance with the Plan, or until an earlier date agreed
to by the holder of the Allowed Other Secured Claim and the Plant Agent.
4.4.4 DEFICIENCY CLAIM. If the holder of an Allowed Other Secured
Claim not assumed by the Purchaser under the Asset Purchase Agreement has a
deficiency claim, such Claim shall be treated (as determined by the
Bankruptcy Court) under the Plan a Class 6 Other General Unsecured Claim.
4.5 TREATMENT OF ASSUMED GENERAL UNSECURED CLAIMS (CLASSES 5A, 5B, 5C, 5D,
5E, 5F, 5G, AND 5H). All Assumed General Unsecured Claims that are Pre-Petition
Payables shall be assumed by the Purchaser under the Asset Purchase Agreement
and paid by the Purchaser, in
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full, with interest on the Closing Date. Interest shall accrue on the unpaid
balance of any Assumed General Unsecured Claim that is a Pre-Petition Payable at
5.0% per annum from the Petition Date until such Claim is fully paid. All
Assumed General Unsecured Claims that are Accrued Liabilities and Scheduled
Liabilities shall be assumed by the Purchaser and paid on the later of (i) the
Closing Date or (ii) the date on which such Claim becomes due pursuant to the
existing payment terms and conditions (whether arising under an agreement,
applicable law, or otherwise) governing any particular Accrued Liability or
Scheduled Liability.
4.6 TREATMENT OF ALLOWED OTHER GENERAL UNSECURED CLAIMS (CLASSES 6A, 6B,
6C, 6D, 6E, 6F, 6G, AND 6H). Each holder of an Allowed Other General Unsecured
Claim shall receive its Pro Rata Share of the Class 6 Amount on the later of (i)
the Allowance Date or (ii) a Distribution Date.
4.7 TREATMENT OF ALLOWED EQUITY INTERESTS (CLASSES 7A, 7B, 7C, 7D, 7E, 7F,
7G, AND 7H). Each holder of an Allowed Equity Interest in class 7A on the
Effective Date shall receive a Pro Rata Share of the Class 7 Amount and the
Purchase Price Escrow on the later of (i) the Allowance Date or (ii) a
Distribution Date. Each holder of an Allowed Equity Interest in Classes 7B, 7C,
7D, 7E, 7F, 7G, and 7H shall retain their Equity Interests under the Plan but
shall not be entitled to receive any Distribution under the Plan.
ARTICLE 5
EXECUTORY CONTRACTS
5.1 ASSUMPTION AND REJECTION. All Executory Contracts (except those
identified on Schedule 2.2(a) of the Asset Purchase Agreement) shall be assumed
by the applicable Debtor(s) and assigned to the Purchaser. To the extent
required under Bankruptcy Code section 365(b)(1), any Cure shall be paid by the
Purchaser on the Closing Date. All Executory Contracts identified
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on Schedule 2.2(a) of the Asset Purchase Agreement shall be rejected as of the
Confirmation Date.
5.2 APPROVAL OF ASSUMPTION OR REJECTION. Entry of the Confirmation Order
shall constitute the approval, under Bankruptcy Code section 365(a), of (i) the
assumption and assignment of the Executory Contracts identified in accordance
with section 5.1 of the Plan and (ii) the rejection of all other Executory
Contracts.
5.3 REJECTION CLAIMS. Unless the Bankruptcy Court, the Bankruptcy Code, or
the Bankruptcy Rules establish an earlier deadline concerning the rejection of a
particular Executory Contract, any Claim arising out of the rejection of an
Executory Contract under Article 5 of the Plan, must be filed with the
Bankruptcy Court and served on the Debtors, the U.S. Trustee, and any Committee
by the Rejection Claim Bar Date. Any such Claims not filed by the Rejection
Claim Bar Date shall be discharged and forever barred. Any Claims arising out of
the rejection of an Executory Contract pursuant to a Final Order entered before
the Rejection Claim Bar Date must have been filed by the earlier of (i) the
date, if any, specified in the Final Order approving such rejection or (ii) the
Rejection Claim Bar Date; otherwise such Claims are discharged and forever
barred. All Allowed Claims arising from the rejection of an Executory Contract
shall be treated as an Allowed Other General Unsecured Claim in the relevant
Class under the Plan.
ARTICLE 6
MEANS FOR IMPLEMENTATION OF THE PLAN
6.1 THE PLAN AGENT
6.1.1 SELECTION OF PLAN AGENT. Before the Disclosure Statement
Approval Date, the Debtors shall nominate a candidate to serve as the Plan
Agent under the Plan. The Debtors shall also negotiate a fee agreement with
such candidate. The Debtors shall file with the Bankruptcy Court and serve
on any Committee at least ten (10) days before the hearing
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on the Disclosure Statement a disclosure identifying the candidate for Plan
Agent and setting forth the terms of the fee arrangement. The Plan Agent
candidate shall be approved at the Confirmation Hearing, and shall
thereafter immediately undertake the required duties under the Plan on the
Closing Date.
6.1.2 DUTIES AND OBLIGATIONS OF PLAN AGENT. On and after the Closing
Date, the Plan Agent shall undertake his or her duties in accordance with
the requirements of the Plan, including without limitation Exhibit C to the
Plan.
6.2 THE CLOSING. A Closing of the transactions required and contemplated
under the Plan shall take place on the Closing Date at the offices of Haynes and
Boone, LIP, 1000 Louisiana, Suite 4300, Houston, Texas 77002, or at such other
place identified in a notice provided to those parties identified in section
16.2 of the Plan. The Debtors may reschedule the Closing by making an
announcement at the originally scheduled Closing of the new date for the
Closing. A notice of the rescheduled Closing Date shall be filed with the
Bankruptcy Court and served on the parties identified in section 16.2 of the
Plan within two (2) days after the originally scheduled Closing Date. The
following actions shall occur at or before the Closing, and shall be effective
on the Closing Date:
6.2.1 CONSUMMATION OF SALE TO PURCHASER. All parties to the Asset
Purchase Agreement shall undertake all actions necessary to effectuate and
consummate the sale of the Debtors' property and assets to the Purchaser
under the Asset Purchase Agreement, including the payment of the purchase
price thereunder and the execution of any and all necessary documents and
other instruments. All Estate Property purchased under the Asset Purchase
Agreement shall be conveyed to Purchaser free and clear of all Liens,
Claims, interests or encumbrances. The Bank Lenders shall execute all
documents and instruments reasonably
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required by the Purchaser to release their Liens on or against the
Estate Property conveyed to Purchaser pursuant to the Asset Purchase
Agreement.
6.2.2 AMENDMENT OF DEBTORS' ARTICLES OF INCORPORATION AND BY-LAWS. The
Debtors' Articles of Incorporation and By-Laws (or analogous governance
documents) shall be amended and all necessary action shall be taken to:
(i) prohibit the issuance of non-voting equity securities, and
providing, as to the several classes of securities possessing voting
power, an appropriate distribution of such power among such classes,
including, in the case of any class of equity securities having a
preference over another class of equity securities with respect to
dividends, adequate provisions for the election of directors representing
such preferred class in the event of default in the payment of such
dividends;
(ii) provide for the termination of all then current officers,
directors, and managers of the Debtors, effective on the Closing Date;
(iii) provide for the election and appointment of the Plan Agent as
the sole director or manager (whichever is applicable) and as President
and Secretary of the Debtors, effective on the termination of all
directors, officers, and managers of the Debtors on the Closing Date; and
(iv) provide for such provisions, terms, and conditions necessary to
comply, conform with, and implement the terms, conditions, and
requirements of the Plan, including the provisions regarding the Plan
Agent's rights and obligations set forth in Exhibit C to the Plan.
6.2.3 EXECUTION OF DOCUMENTS AND CORPORATE ACTION. The Debtors shall
deliver all documents and perform all actions reasonably contemplated with
respect to implementation of the Plan. Robert L. Ruck is designated as the
authorized representative of each Debtor (i) to execute on behalf of each
Debtor, in a representative capacity and not individually, any documents or
instruments after the Confirmation Date or at the Closing that may be
necessary to consummate the Plan and (ii) to undertake any other action on
behalf of each Debtor to consummate the Plan. Robert L. Ruck may take any
action authorized under this section without action by or notice to the
Debtors' board of directors (or managers) or shareholders (or members).
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6.2.4 SURRENDER OF INSTRUMENTS. Each Claimholder holding a certificate
or instrument evidencing a Claim against the Debtors or the Estate Property
and whose claims are treated under the Plan shall surrender such
certificate or instrument to the Plan Agent on the Closing Date as a
prerequisite to receiving any Distribution under the Plan, unless the
non-availability of such certificate or instrument is established to the
satisfaction of the Plan Agent.
6.2.5 ESTABLISHMENT OF RESERVES AND OTHER ACCOUNTS.
6.2.5.1 ESTABLISHMENT OF SALE PROCEEDS ACCOUNT. The Plan
Agent shall establish a segregated, interest-bearing account and,
subject to funding any other reserve accounts required by the Plan,
shall deposit into such account the Sale Proceeds received from
closing the Asset Purchase Agreement.
6.2.5.2 ESTABLISHMENT OF ADMINISTRATIVE CLAIMS RESERVE. The
Plan Agent shall establish the Administrative Claims Reserve, which
shall be maintained in a segregated, interest-bearing account. The
Administrative Claims Reserve shall be funded initially with Cash from
the Sales Proceeds in the amount of $5 million. The Plan Agent shall
supplement or replenish the Administrative Claims Reserve as may be
necessary periodically to maintain a balance equal to the claimed
and/or scheduled amount of all Administrative Claims not assumed by
the Purchaser.
6.2.5.3 ESTABLISHMENT OF PRIORITY CLAIMS RESERVE. The Plan
Agent shall establish the Priority Claims Reserve, which shall be
maintained in a segregated interest-bearing account. The Priority
Claims Reserve shall be funded with Cash from the Sales Proceeds in an
amount equal to the claimed and/or
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scheduled amount of all Priority Unsecured Tax Claims and all Priority
Unsecured Non-Tax Claims not assumed by the Purchaser, including
applicable interest accrued from the Petition Date to the Closing
Date.
6.2.6 DISCHARGE OF INDENTURE AND CANCELLATION OF SENIOR NOTES. As of
the Effective Date, the Indenture shall be discharged and rendered null and
void and of no further force and effect. Such discharge shall not, however,
impair the rights of the Noteholders (or the Beneficial Holders through the
Noteholders) to receive Distributions under the Plan, or the rights and
duties under the Indenture as between the Indenture Trustee and the
beneficiaries of the trust created thereby. As of the Effective Date, the
Senior Notes and the rights of the Noteholders shall be canceled and shall
be null and void, and the Noteholders shall have no rights, and such
instruments shall evidence no rights, except the right to receive
Distributions under the Plan. All canceled Senior Notes held by the
Indenture Trustee shall be disposed of in accordance with its customary
procedures under the Indenture, unless the Plan Agent directs the Indenture
Trustee to return the canceled Senior Notes to the applicable Debtors.
6.3 TERMINATION OF THE COMMITTEE. The appointment and operation of any
Committee shall terminate on the day immediately following the Closing Date. The
dissolution or termination of the appointment and operation of any Committee
shall not prejudice the rights of any agents of the Committee (including its
Professionals and Committee members) to pursue their separate claims for
compensation and reimbursement of expenses, including Professional Fee Claims
under Bankruptcy Code sections 330, 331 and/or 503(b)(3)(F).
6.4 BANKRUPTCY CODE SECTION 1145 DETERMINATION. Confirmation of the Plan
shall constitute a determination, in accordance with Bankruptcy Code section
1145, that (except with
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respect to an entity that is an underwriter as defined in Bankruptcy Code
section 1145(b)) Section 5 of the Securities Act of 1933 and any state or local
law requiring registration for offer or sale of a security or registration or
licensing of an issuer of, underwriter of, broker or dealer in, a security do
not apply to the offer or sale of any securities under the Plan.
ARTICLE 7
GENERAL PROVISIONS GOVERNING DISTRIBUTIONS
7.1 IN GENERAL. The Plan Agent shall make all Distributions required under
the Plan.
7.2 DISTRIBUTIONS ON ALLOWED CLAIMS ONLY. Distributions under the Plan
shall be made only to the holders of Allowed Claims. Until a Disputed Claim
becomes an Allowed Claim, the holder of that Disputed Claim shall not receive
the consideration otherwise provided to such Claimholder under the Plan.
7.3 PLACE AND MANNER OF PAYMENTS OR DISTRIBUTIONS. Distributions to
holders of Allowed Claims shall be made by mailing such Distribution to the
Claimholders at their address listed in the Schedules of Assets and Liabilities,
or any proof of claim filed by the Claimholders, or at such other address as
such Claimholders shall have specified for payment purposes in a written notice
received by the Plan Agent at least twenty (20) days before a Distribution Date.
The Plan Agent shall distribute any Cash by wire, check, or such other method as
the Plan Agent deems appropriate under the circumstances. Before receiving any
Distributions, all Claimholders, at the Plan Agent's request, must provide
written notification of their respective Federal Tax Identification Numbers or
Social Security Numbers to the Plan Agent; otherwise, the Plan Agent may suspend
Distributions to any Claimholders who have not provided their Federal Tax
Identification Number or Social Security Number.
7.4 UNDELIVERABLE DISTRIBUTIONS. If a Distribution to any Claimholder is
returned as undeliverable, the Plan Agent shall use reasonable efforts to
determine such Claimholder's then
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current address. No further Distributions shall be made to such Claimholder
unless and until the Plan Agent is notified of such Claimholder's then current
address.
7.5 TREATMENT OF UNCLAIMED OR UNDELIVERABLE DISTRIBUTIONS. If any Person
entitled to a Distribution under the Plan cannot be located on the Effective
Date or any time thereafter, then, subject to the provisions of this section and
Article 13, such Distribution shall be set aside and held in an interest-bearing
account or fund maintained by the Plan Agent on behalf of such Person. If such
Person is located within one (1) year of the Effective Date, such Distribution,
together with any interest actually earned thereon and proceeds thereof (less
the allocable portion of taxes paid by the Debtors on account of such Person),
shall be paid or distributed to such Person. If the Person cannot be located
within one (1) year after the Effective Date, then (i) such Person shall no
longer be a Claimholder and (ii) any Distribution and interest and proceeds
thereon allocable to such Person (net of the allocable portion of taxes paid by
the Debtors) shall become Estate Property free and clear of any Claim to such
property by or on behalf of such Person (who shall be deemed to have released
such Claim) and shall be otherwise distributed as provided in the Plan, with
such adjustments that may be required to take into account that such Person is
no longer a Claimholder.
7.6 WITHHOLDING. The Plan Agent may at any time withhold from a
Distribution to any Person (except with respect to the Internal Revenue Service)
such amounts sufficient to pay any tax or other charge that has been or may be
imposed on such Person with respect to the amount distributable or to be
distributed under the income tax laws of the United States or of any state or
political subdivision or entity by reason of any Distribution provided for in
the Plan, whenever such withholding is determined by the Plan Agent (in its sole
discretion) to be required by any law, regulation, rule, ruling, directive, or
other governmental requirement. The Plan Agent, in
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the exercise of its sole discretion and judgment, may enter into agreements with
taxing or other authorities for the payment of such amounts that may be withheld
in accordance with the provisions of this section. Notwithstanding the foregoing
but without prejudice to the Debtors' rights, such Person shall have the right
with respect to the United States, or any state, or any political subdivision of
either, to contest the imposition of any tax or other charge by reason of any
Distribution under the Plan.
7.7 INTEREST. Interest received with respect to principal distributed
under the Plan shall be distributed along with the underlying principal.
7.8 DISTRIBUTIONS TO HOLDERS OF SENIOR NOTES.
7.8.1 DISTRIBUTIONS. Notwithstanding any other provision of the Plan,
all Distributions to be made to any Noteholder of the Senior Notes under
the Plan shall be made to the Indenture Trustee on behalf of the Noteholder
in accordance with the terms of the Plan. The Indenture Trustee shall
distribute the Cash to the Noteholder, subject to any rights or claims of
the Indenture Trustee under the Indenture. Distributions made to the
Noteholder under the Plan shall be deemed to be Distributions made for the
benefit of the Beneficial Holders. In accordance with the Indenture, the
Indenture Trustee may establish reasonable and customary rules and
procedures in connection with its duties under this section.
Notwithstanding, the Noteholder shall not be entitled to any Distribution
under the Plan unless and until the Noteholder has surrendered its interest
in the Senior Notes to the Indenture Trustee in accordance with the
Indenture Trustee's customary procedures and the requirements of the Plan.
Promptly after such surrender, the Indenture Trustee shall distribute to
the Noteholder its portion of Cash. If the Noteholder fails to transfer all
of its interest in the Senior Notes to the Indenture Trustee as provided
herein within one (1) year
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from and after the Distribution Record Date, the portion of the interests
in the Senior Notes that was not transferred shall be deemed canceled, null
and void, and all rights and claims arising thereunder shall be forfeited
and shall not participate in any Distribution under the Plan. On the
expiration of such one (1) year period, all Distributions that otherwise
would have been made on account of any canceled and forfeited interest in
the Senior Notes shall be distributed to other Claimholders in accordance
with the Plan.
7.8.2 RECORD DATE FOR SENIOR NOTES. Consistent with the Indenture, as
of the Distribution Record Date, the Note Register (as defined in the
Indenture) maintained by the Indenture Trustee for the Senior Notes shall
be closed and there shall be no further changes in the Note Register
maintained by the Indenture Trustee for the Senior Notes. The Plan Agent,
the Indenture Trustee, and the Noteholder shall have no obligation to
recognize any transfer of the Senior Notes (or interests therein) occurring
after the Distribution Record Date. The Plan Agent and the Indenture
Trustee shall be entitled to recognize and deal for all purposes under the
Plan with only the Noteholder whose name appears in the Note Register
maintained by the Indenture Trustee for the Senior Notes on the
Distribution Record Date.
ARTICLE 8
VESTING OF PROPERTY
8.1 RETESTING OF PROPERTY. On the Effective Date, except as otherwise
expressly provided in the Plan, title to all Estate Property shall vest in the
Debtors free and clear of all Liens of any kind, subject to the Plan Agent's
obligation to transfer any Estate Property to Purchaser under the Asset Purchase
Agreement.
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ARTICLE 9
DISCHARGE, RELEASE AND EXTINGUISHMENT
OF LIENS, CLAIMS, INTERESTS, AND ENCUMBRANCES
9.1 DISCHARGE OF DEBTORS. Except as otherwise provided in the Plan, the
rights granted in the Plan and the treatment of all Claims and Equity Interests
shall be in exchange for, and in complete satisfaction, discharge, and release
of, all Claims of any nature whatsoever against the Debtors and any of the
Estate Property. Except as otherwise provided in the Plan, on the Effective
Date, each of the Debtors shall be discharged and released from any and all
Claims, including demands and liabilities that arose before the Effective Date,
and all debts of the kind specified in Bankruptcy Code sections 502(g), 502(h),
or 502(I), regardless of whether (a) a proof of claim evidencing such debt was
filed or deemed filed under Bankruptcy Code section 501; (b) a Claim based on
such debt is allowed under Bankruptcy Code section 502; or (c) the holder of a
Claim based on such debt has accepted the Plan. Except as otherwise provided in
the Plan, the Confirmation Order shall be a judicial determination of discharge
of all liabilities of the Debtors. Pursuant to Bankruptcy Code section 524, the
discharge granted under this section shall void any judgment against any of the
Debtors at any time obtained to the extent it relates to a discharged Claim, and
operates as an injunction against the prosecution of any action against any of
the Debtors or the Estate Property, to the extent it relates to a discharged
Claim.
9.2 EXCULPATION. None of the officers, directors, managers, or
Professionals of any of the Debtors shall have any liability to any Claimholder
or Interest holder or other Person for any act or omission in connection with,
relating to, or arising out of the administration of the Debtors' bankruptcy
cases, including the negotiation, preparation, and pursuit of confirmation of
the Plan, the confirmation of the Plan, the consummation of the Plan, the
administration of the Plan or the Estate Property to be distributed under the
Plan, except for liability based on willful misconduct or gross negligence. In
all such instances, the above-referenced parties shall be and
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have been entitled to reasonably rely on the advice of counsel with respect to
their duties and responsibilities in connection with the Debtors' bankruptcy
cases and under the Plan.
ARTICLE 10
INJUNCTION AGAINST ENFORCEMENT OF RECONFIRMATION DEBT
10.1 INJUNCTION ENJOINING HOLDERS OF CLAIMS AGAINST DEBTORS. Except as
otherwise expressly provided in the Plan, after the Effective Date, all Persons
who have been, are, or may be holders of Claims against or Equity Interests in
the Debtors arising before the Effective Date shall be enjoined from taking any
of the following actions against or affecting the Debtors, their Estates, and
the Estate Property regarding such Claims or Equity Interests (other than
actions brought to enforce any rights or obligations under the Plan):
(i) commencing, conducting, or continuing in any manner, directly
or indirectly, any suit, action, or other proceeding of any kind against
the Debtors, their Estates, or the Estate Property (including, all suits,
actions, and proceedings that are pending on the Effective Date, which
shall be deemed withdrawn and dismissed with prejudice);
(ii) enforcing, levying, attaching, collecting, or otherwise
recovering by any manner or means, directly or indirectly, any judgment,
award, decree, or order against the Debtors, their Estates, or the Estate
Property;
(iii) creating, perfecting, or otherwise enforcing in any manner,
directly or indirectly, any Lien against the Debtors, their Estates, or the
Estate Property;
(iv) asserting any right of subrogation or recumbent of any kind,
directly or indirectly, against any obligation due the Debtors, their
Estates, or their Property; and
(v) proceeding in any manner and in any place whatsoever that does
not conform to or comply with the provisions of the Plan.
ARTICLE 11
EVENTS OF DEFAULT
11.1 EVENTS OF DEFAULT. An event of default shall have occurred if the Plan
Agent or any other Person takes any action, fails to take any action, or fails
to refrain from taking an action prevented, required, or otherwise set forth in
the Plan.
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11.2 REMEDIES FOR DEFAULTS. Should an event of default occur by the Plan
Agent or any other Person, at least one other party-in-interest (including any
Debtor) must provide written notice of the default to the defaulting party and
serve copies of the notice to all parties identified in section 16.2 of the
Plan. If the default is not cured within ten (10) days after service of the
notice of default, the notifying party may present an EX PRATE order to the
Bankruptcy Court setting a date and time when the defaulting party must appear
before the Bankruptcy Court and show cause why it should not be held in contempt
of the Confirmation Order. If found to be in default of the Plan, the Bankruptcy
Court shall:
(a) assess the costs of the Plan Agent or other party-in-interest
of proceeding on the order to show cause against the defaulting party, such
costs to be the greater of the actual amounts incurred or $5,000; and
(b) designate a person to appear, sign, and/or accept on behalf of
the defaulting party the documents required under the Plan in accordance
with Federal Rule of Civil Procedure 70, or enter such other order
compelling compliance with the Plan that may be necessary and that does not
materially alter the terms of the Plan as confirmed.
ARTICLE 12
PROVISIONS FOR THE RESOLUTION OF
OBJECTIONS TO PROOFS OF CLAIM
12.1 RIGHT TO OBJECT TO CLAIMS. The Plan Agent shall have the right to
examine and object to any Claims filed in the Debtors' chapter 11 cases, and
shall have the right to object to and contest the allowance of any such Claims.
12.2 DEADLINE FOR OBJECTING TO CLAIMS. Objections to Claims must be filed
with the Bankruptcy Court, and a copy of the objection must be served on the
subject Claimant, before the expiration of the Claims Objection Deadline (unless
such period is further extended by subsequent orders of the Bankruptcy Court);
otherwise such Claim shall be deemed allowed in accordance with Bankruptcy Code
section 502.
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12.3 DEADLINE FOR RESPONDING TO CLAIM OBJECTIONS. Within thirty (30) days
after service of an objection, the Claimant whose Claim was objected to must
file a written response to the objection with the Bankruptcy Court and serve a
copy on the objecting party, the Plan Agent, and the parties identified in
section 16.2 of the Plan. Failure to file a written response within the thirty
(30) day time period shall constitute a waiver and release of the subject Claim,
and shall cause the Bankruptcy Court to enter a default judgment against the
non-responding Claimant granting the relief requested in the claim objection.
12.4 ESTIMATION OF CLAIMS. The Plan Agent may request the Bankruptcy Court
to estimate any Claim for purposes of allowance under Bankruptcy Code section
502(c).
12.5 NOTICE OF CLAIM ALLOWANCE. Notwithstanding any other provision of the
Plan, the Plan Agent may file a notice with the Bankruptcy Court identifying any
Claim(s) that will not be subject to an objection or other contest. The Plan
Agent shall serve such notice on the parties identified in section 16.2 of the
Plan and the holders of the Claims identified in the notice. All Claims
identified in any notice filed under this section shall be deemed allowed in
accordance with Bankruptcy Code section 502 on the date of the filing of the
notice.
ARTICLE 13
GENERAL PROVISIONS RELATING TO RESERVES
13.1 ADMINISTRATIVE CLAIMS RESERVES. To the extent any Cash held in the
Administrative Claims Reserve established under the Plan relate to
Administrative Claims or Professional Fee Claims that have either been
disallowed by the Bankruptcy Court or are no longer claimed as evidenced by (i)
a written release of such Claim or (ii) the failure to seek allowance of such
Claim within six (6) months from the Effective Date, then such Cash shall become
Distributable Sales Proceeds and shall be distributed in accordance with the
Plan. The Administrative Claims Reserve shall be dissolved once all required
payments have been made.
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13.2 PRIORITY CLAIMS RESERVE. To the extent any Cash held in the Priority
Claims Reserve relate to a Priority Unsecured Non-Tax Claim or a Priority
Unsecured Tax Claim that has either been disallowed by the Bankruptcy Court or
is no longer claimed as evidenced by (i) a written release of such Claim (ii) or
the failure to seek allowance of such Claim within six (6) months from the
Effective Date, then such Cash shall become distributable Sales Proceeds and
shall be Distributable in accordance with the Plan. The Priority Claims Reserve
shall be dissolved once all required payments have been made.
13.3 DISPUTED CLAIMS RESERVE. The Plan Agent shall deposit the
Distributions reserved for the holders of Disputed Claims or Disputed Equity
Interests in a segregated, interest-bearing account called the Disputed Claim
Reserve. The disputed Claim Reserve shall be held in trust for the benefit of
holders of Allowed Claims and Allowed Equity Interests whose Distributions are
unclaimed and the holders of Disputed Claims and Disputed Equity Interests
pending determination of their entitlement to Distributions under the Plan. When
a Disputed Claim or Disputed Equity Interest becomes an Allowed Claim or Allowed
Interest, the Plan Agent shall release and deliver the Distributions reserved
for the particular Disputed Claim or Disputed Equity Interest (net of
distribution cost) from the Disputed Claim Reserve, together with any earned
interest attributable to the Disputed Claim or Disputed Equity Interest. If the
Court disallows the Disputed Claim or Disputed Equity Interest, the Distribution
and interest and proceeds thereon shall be part of the Distributable Sales
Proceeds or Estate Property free and clear of any liens, claims, interest, or
other encumbrances and shall be distributed in accordance with the Plan.
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ARTICLE 14
PROVISIONS FOR THE RETENTION, ENFORCEMENT, COMPROMISE, OR ADJUSTMENT OF CLAIMS
BELONGING TO THE ESTATE
14.1 RIGHT TO ENFORCE, COMPROMISE, OR ADJUST ESTATE CLAIMS. The Plan Agent
shall have and retain the full power, authority, and standing to prosecute,
compromise, or otherwise resolve any claims and causes of action (including
Rights of Action and Avoidance Actions) constituting Estate Property. All
proceeds derived from such claims and causes of action (including Rights of
Action and Avoidance Actions) shall remain Estate Property.
ARTICLE 15
RETENTION OF JURISDICTION
15.1 RETENTION OF JURISDICTION. The Bankruptcy Court, even after the
Bankruptcy Case has been closed, shall have jurisdiction over all matters
arising under, arising in, or relating to the Debtors' chapter 11 cases,
including proceedings to:
(a) ensure that the Plan is fully consummated and implemented;
(b) enter such orders that may be necessary or appropriate to
implement, consummate, or enforce the provisions of the Plan and all
contracts, instruments, releases, indentures, and other agreements or
documents created in connection with the Plan or the Disclosure Statement;
(c) consider any modification of the Plan under Bankruptcy Code
section 1127;
(d) hear and determine all Claims, controversies, suits, and disputes
against the Debtors to the full extent permitted under 28 U.S.C. Section
157 and Section 1334;
(e) allow, disallow, determine, liquidate, classify, estimate, or
establish the priority or secured or unsecured status of any Claim,
including the resolution of any and all objections to the allowance or
priority of Claims;
(f) hear, determine, and adjudicate any litigation involving the
Rights of Action and Avoidance Actions or other claims or causes of action
constituting Estate Property;
(g) decide or resolve any motions, adversary proceedings, contested
or litigated matters, and any other matters, and grant or deny any motions
or applications involving the Debtors that are pending on or commenced
after the Effective Date;
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(h) resolve any cases, controversies, suits, or disputes that may
arise in connection with the consummation, interpretation, or enforcement
of the Plan, or any entity's obligations incurred in connection with the
Plan, or any other agreements governing, instruments evidencing, or
documents relating to any of the foregoing, including the interpretation or
enforcement of any rights, remedies, or obligations under any of the
foregoing;
(I) hear and determine all controversies, suits, and disputes that
may arise out of or in connection with the enforcement of any subordination
and similar agreements among various Creditors under Bankruptcy Code
section 510;
(j) hear and determine all requests for compensation and/or
reimbursement of expenses that may be made for fees and expenses incurred
before the Closing Date;
(k) enforce any Final Order, the Confirmation Order, the final
decree, and all injunctions contained in those orders;
(l) enter an order concluding and terminating the Debtors' chapter 11
cases;
(m) correct any defect, cure any omission, or reconcile any
inconsistency in the Plan, or the Confirmation Order, or any other document
or instruments created or entered into in connection with the Plan;
(n) determine all questions and disputes regarding title to the
Estate Property;
(o) classify the Claims of any Claimholders and the treatment of
those Claims under the Plan, re-examine Claims that may have been allowed
for purposes of voting, and determine objections that may be filed to any
Claims;
(p) take any action described in the Plan involving the Debtors;
(q) enforce, by injunction or otherwise, the provisions contained in
the Plan, the Confirmation Order, any final decree, and any Final Order
that provides for the adjudication of any issue by the Bankruptcy Court;
(r) enter and implement such orders that are necessary or appropriate
if the Confirmation Order is for any reason modified, stayed, reversed,
revoked, or vacated; and
(s) enter a final decree as contemplated by Bankruptcy Rule 3022.
ARTICLE 16
GENERAL PROVISIONS
16.1 CONFIRMATION ORDER. The Confirmation Order shall contain all
injunctions and other orders that may be necessary to implement the Plan. To the
extent necessary, the
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Confirmation Order shall contain any provisions necessary to provide for the
substantial consummation of the Plan on the Closing Date.
16.2 NOTICES. Except as otherwise specifically provided for in the Plan,
whenever the Plan requires notice be given, such notice shall be given to the
following parties at their respective addresses, unless a prior notice of change
of address has been served on the parties identified in this section indicating
a new address:
HY I Investments, L.L.C.
c/o Equity Group Investments, L.L.C.
Two North Riverside Plaza
Suite 600
Chicago, IL 60606
Facsimile No.: (312) 559-1280
Attn: Nils Larsen
Bennet Management Corporation
2 Stamford Plaza, Suite 1501
Stanford, CT 06901
Facsimile No.: (203) 353-3113
Attn: Jim Bennett
Jenner & Block, LLC
One IBM Plaza
Chicago, IL 60611
Facsimile No.: (312) 840-7389
Attn: Vincent e. Lazar
Pentacon, Inc.
21123 Nordhoff Street
Chatsworth, CA 91311
Facsimile No.: (818) 576-6032
Attn: Jay McFadyen, Esq.
Haynes and Boone, LLP
1000 Louisiana Street
Suite 4300
Houston, TX 77002
Facsimile No.: (713) 547-2600
Attn: Lenard M. Parkins
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Anixter International Inc.
4711 Golf Road
Skokie, IL 60076
Facsimile No.: (847) 715-7518
Attn: Mr. Dennis J. Letham, Senior Vice President - Finance
Anixter International Inc.
4711 Golf road
Skokie, IL 60076
Facsimile No.: (847) 715-7604
E-Mail Address: john.dul@Anixter.com
Attn: Mr. John A. Dul, General Counsel
Baker & McKenzie
130 East Randolph Drive
Chicago, IL 60601
Facsimile No.: (312) 861-2899
Attn: Mr. Philip F. Suse
Bank of America, N.A.
55 South Lake Avenue, Suite 900
Pasadena, CA 91101
Facsimile No.: (626) 397-1270
Attn: Business Credit, Richard G. Burke, Senior Vice President
Jenkens & Gilchrist, P.C.
1445 Ross Avenue, Suite 3200
Dallas, TX 75202
Facsimile No.: (214) 955-4300
Attn: Toby L. Gerber
16.3 DATES. The provisions of Bankruptcy Rule 9006 shall govern the
calculation of any dates or deadlines referenced in the Plan.
16.4 FURTHER ACTION. Nothing contained in the Plan shall prevent the
Debtors from taking any actions that may be necessary to consummate the Plan,
even though such actions may not specifically be provided for in the Plan.
16.5 EXHIBITS. All exhibits attached to the Plan are incorporated in the
Plan by reference and are an integral part of the Plan as though fully set forth
herein.
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16.6 EXEMPTION FROM TRANSFER TAXES. Under Bankruptcy Code section 1146(c),
the issuance, transfer, or exchange of notes or equity securities under the
Plan, the creation of any mortgage, deed of trust or other security interest,
the making or assignment of any lease or sublease, or the making or delivery of
any deed or other instrument of transfer under, in furtherance of, or in
connection with the Plan, including any deeds, bills of sale, or assignments
executed in connection with any of the transactions contemplated under the Plan,
shall not be subject to any stamp, real estate transfer, mortgage recording, or
other similar tax.
16.7 BINDING EFFECT. The Plan shall be binding on, and inure to the benefit
of, the Debtors, any Committee, the Claimholders and Interestholders, and their
respective successors, heirs, and assigns, regardless of whether those parties
voted to accept the Plan.
16.8 GOVERNING LAW. Except to the extent that the Bankruptcy Code or
Bankruptcy Rules are applicable, the rights and obligations arising under the
Plan shall be governed by, and construed and enforced in accordance with, the
laws of the State of Texas, without giving effect to any conflicts of law
principles.
16.9 HEADINGS. Headings are used in the Plan for convenience and reference
only, and shall not constitute a part of the Plan for any other purpose.
16.10 ROUNDING OF AMOUNTS. Notwithstanding anything to the contrary in the
Plan, the Plan Agent may round down all Distribution amounts under the Plan to
the next lowest whole dollar amount.
16.11 WITHDRAWAL OR REVOCATION OF THE PLAN. The Debtors reserve the right
to revoke or withdraw the Plan before the Confirmation Date. If the Debtors
should revoke or withdraw the Plan, then the Plan shall be null and void, and
nothing contained in the Plan shall constitute a
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waiver or release of any Claims, or prejudice in any manner the rights of the
Debtors or any other Person.
16.12 RESERVATION OF RIGHTS. Neither the filing of the Plan nor any
statement or provision contained in the Plan or in the Disclosure Statement, nor
the taking of any action with respect to the Plan, shall (i) be or be deemed to
be an admission against interest by the Debtors and (ii) until the Effective
Date, be or be deemed to be a waiver of any rights the Debtors may have (a)
against any other person or (b) in any of the property and assets of any other
Person, and, until the Effective Date, all such rights are specifically
reserved. In the event that the Plan is not confirmed or fails to become
effective, neither the Plan nor the Disclosure Statement, nor any statement
contained in the Plan or in the Disclosure Statement, may be used or relied on
in any manner against the Debtors in any suit, action, proceeding, or
controversy within or without the Bankruptcy Case.
16.13 DEFECTS, OMISSIONS, AND AMENDMENTS. The Debtors may, with the
approval of the Bankruptcy Court and without notice to holders of Claims,
insofar as it does not materially and adversely affect holders of Claims,
correct any defect, omission, or inconsistency in the Plan in such a manner and
to such extent necessary or desirable to expedite the execution of the Plan. The
Debtors may propose amendments or alterations to the Plan before or after
confirmation as provided in Bankruptcy Code section 1127 if, in the opinion of
the Bankruptcy Court, the modification does not materially and adversely affect
the interests of holders of Claims, so long as the Plan, as modified, complies
with Bankruptcy Code sections 1122 and 1123 and the Debtors have complied with
Bankruptcy Code section 1125. The Debtors may propose amendments or alterations
to the Plan before or after the Confirmation Date but prior to substantial
consummation, in a manner that, in the opinion of the Bankruptcy Court, does not
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materially and adversely affects holders of Claims, so long as the Plan, as
modified, complies with Bankruptcy Code sections 1122 and 1123, the Debtors have
complied with Bankruptcy Code section 1125, and after notice and a hearing, the
Bankruptcy Court confirms such Plan, as modified, under Bankruptcy Code section
1129.
16.14 GOOD FAITH. Confirmation of the Plan shall constitute a finding that
(i) the Plan has been proposed in good faith and in compliance with the
applicable provisions of the Bankruptcy Code, (ii) the Purchaser under the Asset
Purchase Agreement is a good faith purchaser within the meaning of Bankruptcy
Code section 363(m) and (iii) the solicitation of acceptances or rejections of
the Plan by all Persons and the offer, issuance, sale, or purchase of any
security offered or sold under the Plan has been in good faith and in compliance
with applicable provisions of the Bankruptcy Code.
ARTICLE 17
SUBSTANTIAL CONSUMMATION
17.1 SUBSTANTIAL CONSUMMATION. The Plan shall be deemed substantially
consummated immediately on the completion of all actions required to be
undertaken at the Closing.
17.2 FINAL DECREE. On substantial consummation, the Debtors may request the
Bankruptcy Court to enter a final decree closing the case and such other orders
that may be necessary and appropriate.
ARTICLE 18
CONTINGENCIES TO EFFECTIVENESS OF PLAN
18.1 CONTINGENCIES. The Plan shall not be effective until the Bankruptcy
Court enters a confirmation order acceptable in form and substance to the
Debtors, unless such condition is expressly waived.
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DATED: May 23, 2002.
PENTACON, INC.
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By:
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Its:
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PENTACON AEROSPACE GROUP, INC.
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By:
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Its:
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PENTACON INDUSTRIAL GROUP, INC.
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By:
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Its:
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PENTACON INTERNATIONAL SALES, INC.
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By:
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Its:
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PENTACON DELAWARE, INC.
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By:
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Its:
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JET HOLDINGS, INC.
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----------------------------------------------------
By:
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Its:
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PENTACON PROPERTIES, L.P.
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By:
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Its:
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PENTACON USA, L.P.
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By:
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Its:
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