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EXHIBIT 2.1
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UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
In re: )
)
TRI-UNION DEVELOPMENT CORP., ) Case No. 00-32498-H4-11
) Chapter 11
Debtor. )
)
)
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DEBTOR'S FIRST AMENDED PLAN OF REORGANIZATION
Dated: May 9, 2001
Houston, Texas
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Joel P. Kay
Millie A. Sall
Jenny J. Hyun
SHEINFELD, MALEY & KAY, P.C.
1001 Fannin Street, Suite 3700
Houston, TX 77002
Telephone: (713) 658-8881
Facsimile: (713) 658-9756
ATTORNEYS FOR TRI-UNION
DEVELOPMENT CORPORATION
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TABLE OF CONTENTS
<Table>
<Caption>
Page
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ARTICLE 1
DEFINITIONS, CONSTRUCTION, AND INTERPRETATION..........................................................P-1
1.1 Definitions...................................................................................P-1
1.2 Interpretation................................................................................P-8
1.3 Application of Definitions and Rules of Construction
Contained in the Bankruptcy Code..............................................................P-8
1.4 Other Terms...................................................................................P-8
1.5 Integration Clause............................................................................P-8
1.6 Plan Documents................................................................................P-8
ARTICLE 2
CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS..........................................................P-9
2.1 Claims and Equity Interests Classified........................................................P-9
2.2 Administrative Expenses and Priority Tax Claims...............................................P-9
2.3 Classification................................................................................P-9
2.4 Claims and Equity Interests...................................................................P-9
2.5 Aggregation..................................................................................P-10
ARTICLE 3
IDENTIFICATION OF IMPAIRED CLASSES OF CLAIMS AND EQUITY INTERESTS.....................................P-10
3.1 Impaired Classes of Claims and Equity Interests..............................................P-10
3.2 Impairment Controversies.....................................................................P-10
ARTICLE 4
PROVISIONS FOR TREATMENT OF CLAIMS AND EQUITY INTERESTS UNDER THE PLAN................................P-10
4.1 Class 1 - Allowed Secured Claim of Credit Lyonnais...........................................P-10
4.2 Class 2 - Allowed Other Secured Claims.......................................................P-11
4.3 Class 3 - Allowed M&M Lien Claims............................................................P-12
4.4 Class 4 - Allowed Priority Non-tax Claims....................................................P-12
4.5 Class 5 - Allowed General Unsecured Claims...................................................P-12
4.6 Class 6 - Equity Interests...................................................................P-12
ARTICLE 5
PROVISIONS FOR TREATMENT OF
UNCLASSIFIED CLAIMS UNDER THE PLAN....................................................................P-13
5.1 Treatment of Administrative Claims...........................................................P-13
5.2 Treatment of Priority Tax Claims.............................................................P-14
</Table>
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<Table>
ARTICLE 6
ACCEPTANCE OR REJECTION OF THE PLAN; EFFECT OF REJECTION
BY ONE OR MORE CLASSES OF CLAIMS OR EQUITY INTERESTS..................................................P-14
6.1 Classes Entitled to Vote.....................................................................P-14
6.2 Presumed Acceptance of Plan..................................................................P-14
ARTICLE 7
MEANS FOR IMPLEMENTATION OF THE PLAN..................................................................P-14
7.1 Funding Mechanism for 100% Payment...........................................................P-14
7.2 Approval of Funding Mechanism and Related Agreements.........................................P-15
7.3 Debtor Actions...............................................................................P-15
7.4 Continued Corporate Existence................................................................P-16
7.5 Corporate Authority..........................................................................P-16
7.6 Charter and By-Laws..........................................................................P-16
7.7 Election of Directors and Officers...........................................................P-16
7.8 Powers and Duties of the Reorganized Debtor with Respect
to Consummation of the Plan..................................................................P-16
7.9 Assumption of Liabilities....................................................................P-17
ARTICLE 8
CONDITIONS PRECEDENT..................................................................................P-17
8.1 Conditions Precedent to Effective Date of the Plan...........................................P-17
8.2 Waiver of Conditions.........................................................................P-17
ARTICLE 9
EFFECTS OF PLAN CONFIRMATION..........................................................................P-18
9.1 Discharge....................................................................................P-18
9.2 No Discharge of Notes Transaction............................................................P-18
9.3 Vesting......................................................................................P-19
9.4 Injunctions..................................................................................P-19
9.5 Responsible Party Injunction.................................................................P-19
9.6 Lawsuits.....................................................................................P-19
9.7 Insurance....................................................................................P-20
9.8 Setoff and Other Rights......................................................................P-20
9.9 Release of Committee and Estate Professionals................................................P-20
9.10 The Committee................................................................................P-21
ARTICLE 10
RETENTION OF JURISDICTION.............................................................................P-21
10.1 Scope of Jurisdiction........................................................................P-21
10.2 Failure of the Bankruptcy Court to Exercise Jurisdiction.....................................P-22
</Table>
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<Table>
ARTICLE 11
PROVISIONS GOVERNING DISTRIBUTIONS AND RESOLVING
CONTESTED AND UNDISPUTED CLAIMS UNDER THE PLAN........................................................P-23
11.1 Date of Distributions........................................................................P-23
11.2 Distributions................................................................................P-23
11.3 Means of Cash Payment........................................................................P-23
11.4 Delivery of Distributions....................................................................P-23
11.5 Distributions To Certain Scheduled Claims....................................................P-24
11.6 Distributions on Account of Undisputed Portions of a Claim...................................P-24
11.7 Payment of Contested Claim of Credit Lyonnais' Secured Claim.................................P-24
11.8 Payment of Allowed and Contested Claims in Classes 2 and 3...................................P-24
11.9 Payment of Contested Claims in Class 5.......................................................P-25
11.10 Settlement of Disputed Interest When Other Portions of a
Claim are Allowed; Mechanism for Resolution..................................................P-27
11.11 Exculpation Regarding Distributions..........................................................P-27
ARTICLE 12
PROCEDURES FOR OBJECTIONS TO CLAIMS UNDER THE PLAN....................................................P-28
12.1 Objection Deadline...........................................................................P-28
12.2 Prosecution of Objections....................................................................P-28
ARTICLE 13
PROVISIONS GOVERNING EXECUTORY CONTRACTS
AND UNEXPIRED LEASES UNDER THE PLAN...................................................................P-28
13.1 Assumption and Rejection of Certain Executory Contracts
and Unexpired Leases........................................................................P-28
13.2 Bar to Rejection Damages.....................................................................P-28
ARTICLE 14
MISCELLANEOUS PROVISIONS..............................................................................P-29
14.1 Payment of Statutory Fees....................................................................P-29
14.2 Post-Confirmation Date Fees and Expenses of Professionals....................................P-29
14.3 Bankruptcy Restrictions......................................................................P-29
14.4 Binding Effect...............................................................................P-29
14.5 Governing Law................................................................................P-30
14.6 Modification of Plan.........................................................................P-30
14.7 Creditor Defaults............................................................................P-30
14.8 Severability.................................................................................P-30
14.9 Prepayment...................................................................................P-31
14.10 Release of Liens.............................................................................P-31
14.11 Closing the Case.............................................................................P-31
</Table>
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INTRODUCTION
TRI-UNION DEVELOPMENT CORPORATION, a Texas corporation, the debtor and
debtor-in-possession in the above-referenced Chapter 11 Case, proposes the
following First Amended Plan of Reorganization pursuant to the provisions of
chapter 11 of the Bankruptcy Code. For purposes hereof, any term used in an
initially capitalized form in this First Amended Plan of Reorganization shall
have the defined meaning ascribed to it in either 11 U.S.C. Section 101 or
ARTICLE 1 hereof unless the context otherwise requires.
Reference is hereby made to the First Amended Disclosure Statement, as
hereinafter defined, of the Debtor, which discusses the history of the Debtor,
its business, management, properties, and other assets. YOU ARE URGED TO READ
THE DISCLOSURE STATEMENT WITH CARE IN EVALUATING HOW THIS PLAN WILL AFFECT YOUR
CLAIM(S).
ARTICLE 1
DEFINITIONS, CONSTRUCTION, AND INTERPRETATION
1.1 DEFINITIONS.
The capitalized terms used herein shall have the respective meanings
set forth below:
(1) "Administrative Claim" shall mean any cost or expense of
administration of the Chapter 11 Case incurred on or before the Confirmation
Date entitled to priority under 11 U.S.C. Section 507(a)(1) and allowed under 11
U.S.C. Section 503(b), including all allowances of compensation or reimbursement
of expenses to the extent allowed by the Bankruptcy Court under the Bankruptcy
Code.
(2) "Allowed," when used with respect to any Claim or a portion thereof
shall mean (1) a Claim that is not a Contested Claim; (2) a Claim that has been
agreed to by the Claimant and the Debtor or Reorganized Debtor; (3) a Claim that
has been approved by Final Order; (4) a Contested Claim as to which an objection
was filed by the Objection Deadline but has been approved by Final Order; (5) a
Claim timely filed and as to which no objection to its allowance has been filed
within the time periods provided in this Plan or by any Final Order; (6) a Claim
estimated for purposes of allowance pursuant to 11 U.S.C. Section 502(c); or (7)
a Claim expressly allowed in this Plan.
(3) "Avoidance Actions" means any and all actions which a trustee,
debtor in possession or other appropriate party in interest may assert on behalf
of the Reorganized Debtor under applicable state statute or Chapter 5 of the
Bankruptcy Code under 11 U.S.C. Section 547, 548 and 549.
(4) "Bankruptcy Code" shall mean the Bankruptcy Reform Act of 1978, as
amended, principally codified in title 11 of the United States Code, 11 U.S.C.
Section 101 et seq.
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(5) "Bankruptcy Court" shall mean the United States Bankruptcy Court
for the Southern District of Texas, Houston Division, or such other court having
jurisdiction over the Chapter 11 Case.
(6) "Bankruptcy Rules" shall mean the Federal Rules of Bankruptcy
Procedure promulgated under 28 U.S.C. Section 2075, as amended, and the local
rules of the Bankruptcy Court, as applicable to chapter 11 cases, together with
all amendments from time to time.
(7) "Bar Date" shall mean the final date for the filing of proofs of
Claim set by the Bankruptcy Court as July 18, 2000, or such other date as may
apply to a particular Claim pursuant to a duly-entered order of the Bankruptcy
Court.
(8) "Bowman" shall mean Richard Bowman.
(9) "Business Day" shall mean any day on which commercial banks are
open for business in Houston, Texas.
(10) "Case Interest Rate" shall mean the Texas judgment rate in effect
on the Petition Date (6%), compounded annually on each anniversary of the
Petition Date.
(11) "Cash" shall mean legal tender of the United States of America or
Cash equivalents.
(12) "Chapter 11 Case" shall mean the case commenced under chapter 11
of the Bankruptcy Code by the Debtor on the Petition Date.
(13) "Claim" shall have the meaning set forth in 11 U.S.C. Section 101.
(14) "Claimant" means the holder of any Claim or Equity Interest
entitled to distributions with respect to such Claim or Equity Interest.
(15) "Collateral" shall mean any property of the Debtor subject to a
valid and enforceable Lien to secure the payment or performance of a Claim.
(16) "Committee" shall mean the Official Committee of Unsecured
Creditors appointed in the Chapter 11 Case.
(17) "Confirmation Date" shall mean the date on which the Clerk (as
defined in Bankruptcy Rule 9001) of the Bankruptcy Court enters the Confirmation
Order on its docket.
(18) "Confirmation Hearing" shall mean the hearing(s) before the
Bankruptcy Court pursuant to 11 U.S.C. Section 1128 to consider confirmation of
this Plan, as such hearing(s) may be continued, rescheduled or delayed.
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(19) "Confirmation Order" shall mean the order of the Bankruptcy Court
confirming the Plan.
(20) "Contested" when used with respect to a Claim and except as
provided in ARTICLE 11, shall mean a Claim against the Debtor that (1) is listed
in the Debtor's Schedules as disputed, contingent or unliquidated regardless of
whether a proof of Claim has been filed; (2) is listed in the Debtor's Schedules
as undisputed, liquidated and not contingent and as to which a proof of Claim
has been filed with the Bankruptcy Court, to the extent the proof of Claim
amount exceeds the scheduled amount or is different in priority from the
Schedules; (3) is not listed in the Debtor's Schedules, but as to which a proof
of Claim has been filed with the Bankruptcy Court; (4) is filed after the Bar
Date; or (5) as to which an objection has been filed.
(21) "Court" shall mean the Bankruptcy Court.
(22) "Credit Agreement" shall mean the Amended and Restated Credit
Agreement between Tri-Union and Credit Lyonnais, dated August 28, 1997,
including, without limitation, any promissory notes, loan agreements, deeds of
trust, security agreements, financing statements, and other collateral
documents.
(23) "Credit Lyonnais" shall mean Credit Lyonnais, New York Branch.
(24) "Creditor" shall mean the holder of a Claim.
(25) "Cure Payment" shall be the monetary payments required pursuant to
11 U.S.C. Section 365(b)(1)(A) to cure defaults under executory contracts or
unexpired leases to which the Debtor is a party and which will be assumed
pursuant to the Plan.
(26) "Data Room Process" shall mean the process established pursuant to
the Order Granting Motion Authorizing the Creation of a Data Room dated
September 12, 2000, whereby the Marketing Agent solicited bids from interested
parties to acquire certain designated Debtor-owned oil and gas properties.
(27) "Debtor" shall mean Tri-Union Development Corporation, a Texas
corporation.
(28) "Debtor Actions" shall mean any and all claims, causes of action,
and enforceable rights of the Debtor against third parties including, without
limitation, claims of the Debtor for recovery of or based upon or in any manner
arising from or related to damages, general or exemplary (or both), or other
relief relating to (or based upon) (a) indebtedness owing to the Debtor, (b)
fraud, negligence, gross negligence, willful misconduct, or any other tort
actions, (c) breaches of contract, (d) violations of federal or state securities
laws, (e) violations of applicable corporate laws, (f) breaches of fiduciary or
agency duties, (g) disregard of the corporate form or piercing the corporate
veil or other liability theories, and (h) any other claim of the Debtor to the
extent not
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specifically compromised or released pursuant to this Plan or an agreement
referred to, or incorporated into this Plan.
(29) "Disallowed," when used with respect to a Claim (or a portion
thereof), shall mean a Claim or portion thereof that (i) has been disallowed by
a Final Order; (ii) is identified in the Schedules in an amount of zero dollars
or as contingent, unliquidated or disputed and as to which a proof of Claim was
not filed by the Bar Date; or (iii) is not identified in the Schedules and as to
which no proof of Claim has been filed or deemed filed by the Bar Date.
(30) "Discharge" shall have the meaning set forth in ARTICLE 9.1 of the
Plan.
(31) "Disclosure Statement" shall mean the First Amended Disclosure
Statement regarding this Plan, including all annexes, exhibits, and schedules
attached thereto and referenced therein (and the exhibits, if any, to any such
annexes, exhibits, and schedules), prepared by the Proponent pursuant to 11
U.S.C. Section 1125 and approved by the Court, as such First Amended Disclosure
Statement may be amended and modified from time to time.
(32) "Distribution" shall mean the distribution of Cash or other
consideration made to the holders of Allowed Claims.
(33) "Effective Date" shall mean a Business Day on which the Notes
Transaction is closed and funded pursuant to Section 7.1, which Business Day
shall be at least 11 days after the entry of the Confirmation Order and within
the later of thirty-eight (38) days after the entry of the Confirmation Order or
June 11, 2001, and provided that (i) the Confirmation Order is not stayed and
(ii) all conditions to the effectiveness of the Plan have been satisfied or
waived as provided in ARTICLE 8 of the Plan.
(34) "Equity Interest" shall mean the interest represented by an
"equity security," as defined in 11 U.S.C. Section 101, including all common
stock in the Debtor.
(35) "Executory Contract" shall mean, collectively, "executory
contracts" and "unexpired leases" of the Debtor as of the Petition Date as such
terms are used within 11 U.S.C. Section 365.
(36) "Fee Application" shall mean an application of a Professional
under 11 U.S.C. Sections 330 or 503 for allowance of compensation and
reimbursement of expenses in the Chapter 11 Case.
(37) "Fee Claim" shall mean a Claim under 11 U.S.C. Sections 328, 330
or 503 for allowance of compensation and reimbursement of expenses in the
Chapter 11 Case.
(38) "Final Decree" shall mean the final decree entered by the
Bankruptcy Court on or after the Effective Date pursuant to Bankruptcy Rule
3022.
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(39) "Final Order" shall mean (1) an order as to which the time to
appeal, petition for certiorari or move for reargument or rehearing, to amend or
make additional findings of fact, to alter or amend the judgment, for a new
trial or from relief from judgment has expired and as to which no appeal,
petition for certiorari or other proceedings for reargument or rehearing, to
amend or make additional findings of fact, to alter or amend the judgment, for a
new trial or from relief from judgment shall then be pending or (2) in the event
that an appeal, writ of certiorari or motion for reargument or rehearing, to
amend or make additional findings of fact, to alter or amend the judgment, for a
new trial or from relief from judgment has been filed and sought, such order
shall have been affirmed by the highest court to which such order was appealed,
or certiorari has been denied or from which a motion for reargument or
rehearing, to amend or make additional findings of fact, to alter or amend the
judgment, for a new trial or from relief from judgment was sought, and the time
to take any further appeal, petition for certiorari or move for reargument or
rehearing, to amend or make additional findings of fact, to alter or amend the
judgment, for a new trial or from relief from judgment shall have expired;
provided, however, that no order shall fail to be a Final Order solely because
of the possibility that a motion pursuant to Rule 60 of the Federal Rules of
Civil Procedure may be filed with respect to such order unless such motion shall
have been filed within ten (10) days of the entry of the order at issue.
(40) "General Unsecured Claim" shall mean any Claim against a Debtor
that is not a Priority Claim, Secured Claim, an Administrative Claim, Disallowed
Claim, or Subordinated Claim, including, without limitation, any Claim arising
from the rejection of an Executory Contract.
(41) "Jefferies" shall mean Jefferies & Company, Inc., the exclusive
financial advisor to and sole placement agent for the Debtor in connection with
the Notes Transaction.
(42) "Lien" shall mean any charge against, encumbrance upon or other
interest in property, the purpose of which is to secure payment of a debt or
performance of an obligation.
(43) "M&M Lien" shall mean any statutory Lien under state law to secure
the Claim of a Creditor who furnished materials or who provided services for the
Debtor or on the Debtor's property; provided, however, (i) such Creditor has
fully and properly complied with applicable state laws to timely perfect such
Lien; (2) such Lien is enforceable under the Bankruptcy Code; and (3) the value
of the Debtor's Collateral is sufficient to secure the M&M Lien(s) after taking
into account any prior, competing or superior Liens. To the extent the value of
the Debtor's Collateral is insufficient to secure all or a portion of an M&M
Lien(s), all or a portion of said M&M Lien(s) (as the case may be) shall be
treated as a Class 5 General Unsecured Claim.
(44) "M&M Lien Claim" shall mean a Claim secured by a M&M Lien.
(45) "Marketing Agent" shall mean Randall & Dewey, the party selected
by the Debtor, Credit Lyonnais and the Committee to create, manage and operate
the Data Room Process.
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(46) "Master Service List" shall mean that service list created
pursuant to paragraph 1 of the Initial Order for Complex Chapter 11 Bankruptcy
Case entered on March 15, 2000, as updated from time to time.
(47) "MMS" shall mean the Minerals Management Service.
(48) "Objection Deadline" shall mean the date by which objections to
Claims shall be filed with the Bankruptcy Court and served upon the respective
holders of each of the Claims as provided in SECTION 12.1 of the Plan.
(49) "Other Secured Claim" shall mean any Secured Claim other than an
M&M Lien Claim and the Secured Claim asserted by Credit Lyonnais.
(50) "Person" shall mean and includes natural persons, corporations,
limited partnerships, general partnerships, joint ventures, trusts, land trusts,
business trusts, unincorporated organizations, or other legal entities,
irrespective of whether they are governments, agencies or political subdivisions
thereof.
(51) "Petition Date" shall mean March 14, 2000, the date the Debtor
filed the petition commencing the Chapter 11 Case.
(52) "Plan" or "Plan of Reorganization" shall mean this First Amended
Plan of Reorganization, either in its present form or as it may hereafter be
altered, amended or modified from time to time.
(53) "Plan Documents" shall mean the documents that aid in effectuating
the Plan, including those specifically identified herein or attached as exhibits
to the Disclosure Statement, which will be substantially in the respective forms
filed by the Debtor with the Bankruptcy Court prior to the conclusion of the
Confirmation Hearing or such other date (or dates) determined by the Court save
and except for the documents to be executed in connection with the Notes
Transaction which may not be filed with the Bankruptcy Court.
(54) "Priority Claim" shall mean any Claim (other than an
Administrative Claim) to the extent entitled to priority in payment under 11
U.S.C. Section 507(a).
(55) "Priority Non-tax Claim" shall mean any Priority Claim accorded
priority in right of payment under 11 U.S.C. Sections 507(a)(3), (4), (5), (6),
(7) or (9).
(56) "Priority Tax Claim" shall mean a Priority Claim of a governmental
unit of the kind specified in 11 U.S.C. Section 507(a)(8). (1)
(57) "Professional" shall mean a person retained or to be compensated
pursuant to 11 U.S.C. Sections 327, 328, 330, 503(b) or 1103.
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(58) "Proponent" shall mean the Debtor.
(59) "Reorganized Debtor" shall mean the Debtor, as reorganized, on and
after the Effective Date.
(60) "Representatives" shall mean any officer, director, financial
advisor, attorney, law firm, accounting firm, financial advising firm, and other
Professional.
(61) "Schedules" shall mean the Schedules of assets and liabilities and
the statements of financial affairs filed by the Debtor as required by 11 U.S.C.
Section 521 and Bankruptcy Rule 1007, as such Schedules and statements have been
or may be supplemented or amended.
(62) "Secured Claim" shall mean a Claim, including interest, fees and
charges as determined pursuant to 11 U.S.C. Section 506(b), against the Debtor
that is (a) secured in whole or in part as of the Petition Date by a Lien on any
of the assets or property of the Debtor, which Lien is valid, perfected and
enforceable under applicable law and is not subject to avoidance under the
Bankruptcy Code or applicable non-bankruptcy law, but only to the extent of the
value of the assets or property securing any such Claim, or (b) subject to
setoff under 11 U.S.C. Section 553, but only to the extent of the amount subject
to such setoff. The amount of a Secured Claim shall be reduced by any
postpetition payments made to the holder of said Claim during the pendency of
the Chapter 11 Case, including adequate protection payments and proceeds
generated from the sale of the Debtor's assets, which payments or proceeds shall
be applied to reduce the principal amount of the Secured Claim.
(63) "Subordinated Claim" shall mean any Claim asserted against the
Debtor that is determined to be subordinated in right of payment to General
Unsecured Claims under 11 U.S.C. Sections 509 and/or 510 under other applicable
law, or (2) which would be paid pursuant to 11 U.S.C. Sections 726(a)(2)(c),
(a)(3), (a)(4), or (a)(5).
(64) "Tax Liens" shall mean any statutory Liens securing Allowed
Secured Claims for any tax.
(65) "Tribo" shall mean Tribo Petroleum Corporation, a Texas
corporation, and the sole Equity Interest holder of Tri-Union.
(66) "Tri-Union" shall mean the Debtor.
(67) "Utility" shall mean the utilities described in the Debtor's
Motion for Approval of Adequate Assurance of Payment to Utilities Pursuant to 11
U.S.C. Section 366 and in the Injunction, SECTION 9.4 of the Plan.
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1.2 INTERPRETATION.
Unless otherwise specified, all section, article and exhibit references
in the Plan are to the respective section in, article of or exhibit to the Plan,
as the same may be amended, waived or modified from time to time. The headings
and table of contents in the Plan are for convenience of reference only and
shall not limit or otherwise affect the provisions of the Plan. Words denoting
the singular number shall include the plural number and vice versa, and words
denoting one gender shall include the other gender. All exhibits and schedules
attached to the Plan are incorporated herein by such attachment.
1.3 APPLICATION OF DEFINITIONS AND RULES OF CONSTRUCTION CONTAINED IN THE
BANKRUPTCY CODE.
Words and terms defined in 11 U.S.C. Section 101 shall have the same
meaning when used in the Plan, unless a different definition is given in the
Plan. The rules of construction contained in 11 U.S.C. Section 102 shall apply
to the construction of the Plan.
1.4 OTHER TERMS.
The words "herein," "hereof," "hereto," "hereunder" and others of
similar import refer to the Plan as a whole and not to any particular section,
subsection or clause contained in the Plan. A term that is not defined herein
shall have the meaning ascribed to that term, if any, in the Bankruptcy Code.
1.5 INTEGRATION CLAUSE.
This Plan is a complete, whole, and integrated statement of the binding
agreement among the Debtor, the Reorganized Debtor, Creditors, Equity Interests
and the parties-in-interest affected by the matters contained herein. Parol
evidence shall not be admissible in an action regarding this Plan or any of its
provisions.
1.6 PLAN DOCUMENTS.
The Plan Documents are incorporated into and are a part of the Plan as
if set forth in full herein.
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ARTICLE 2
CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS
2.1 CLAIMS AND EQUITY INTERESTS CLASSIFIED.
For purposes of organization, voting and all confirmation matters,
except as otherwise provided herein, all Claims (except for Administrative
Claims and Priority Tax Claims) and all Equity Interests shall be classified as
set forth in this ARTICLE 2 of the Plan. Except as provided in ARTICLE 11, this
Plan shall only provide Distributions to Allowed Claims.
2.2 ADMINISTRATIVE EXPENSES AND PRIORITY TAX CLAIMS.
As provided in 11 U.S.C. Section 1123(a)(1), Administrative Claims and
Priority Tax Claims against the Debtor shall not be classified for purposes of
voting or receiving Distributions under the Plan. Rather, all such Claims shall
be treated separately as unclassified Claims on the terms set forth in ARTICLE 3
of the Plan.
2.3 CLASSIFICATION.
SECTION 2.4 hereof sets forth a designation of classes of Claims and
Equity Interests. A Claim or Equity Interest is classified in a particular class
only to the extent that the Claim or Equity Interest qualifies within the
description of the class. If a Claim is acquired or transferred, the Claim shall
be placed in the class in which it would have been placed if it were owned by
the original holder of such Claim.
For purposes of this Plan, the Claim of Aquila Energy Marketing
Corporation("Aquila") has been classified as a Class 5 General Unsecured Claim.
If this Plan is not confirmed by the Court, Aquila does not waive and expressly
reserves the right to assert that all or a portion of its Claim is entitled to
Administrative Claim treatment. In such an event, the Debtor and parties in
interest likewise do not waive and expressly reserve their right to object to
the appropriate classification and treatment of the Aquila Claim.
2.4 CLAIMS AND EQUITY INTERESTS.
The Plan classifies the Claims against and Equity Interests in the
Debtor as follows:
Class 1: Allowed Secured Claim of Credit Lyonnais.
Class 2: Allowed Other Secured Claims.
Class 3: Allowed M&M Lien Claims.
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Class 4: Allowed Priority Non-tax Claims.
Class 5: Allowed General Unsecured Claims.
Class 6: Allowed Claims of MMS.
Class 7: Equity Interests.
2.5 AGGREGATION.
If a Creditor has more than one Claim in the same class, such Claims
shall be aggregated and treated as a single Claim. If a Creditor has Claims in
different classes, such Claims shall be aggregated only within the same class
and not between classes.
ARTICLE 3
IDENTIFICATION OF IMPAIRED CLASSES
OF CLAIMS AND EQUITY INTERESTS
3.1 IMPAIRED CLASSES OF CLAIMS AND EQUITY INTERESTS.
All Classes of Claims and Equity Interests are unimpaired under the
Plan.
3.2 IMPAIRMENT CONTROVERSIES.
If a controversy arises as to whether any Claim or Equity Interest or
any class of Claims or class of Equity Interests is impaired under the Plan, the
Bankruptcy Court shall, upon notice and a hearing, determine such controversy.
ARTICLE 4
PROVISIONS FOR TREATMENT OF CLAIMS AND
EQUITY INTERESTS UNDER THE PLAN
The classes of Claims against and Equity Interests in the Debtor shall
be treated under the Plan as follows:
4.1 CLASS 1 - ALLOWED SECURED CLAIM OF CREDIT LYONNAIS.
(a) 100% Payment: Unless the Reorganized Debtor and Credit Lyonnais
agree to a different treatment, the Allowed Secured Claim of Credit Lyonnais
will be treated as a fully Secured Claim and will be paid in full in Cash on the
Effective Date, including principal, interest to which it is entitled under
applicable contracts and/or law through the Effective Date and reasonable fees,
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costs and expenses through the Effective Date to the extent such are allowable
under the applicable contracts or under applicable law.
(b) No Compromise of Claims. Notwithstanding the payment of the claim
of Credit Lyonnais, all Claims held by the Debtor against Credit Lyonnais are
not compromised or released by this Plan, including Richard Bowman, Tribo
Petroleum Corporation and Tri-Union Development Corporation vs . Credit
Lyonnais, New York Branch and Credit Lyonnais Securities (USA), Inc.; Case No.
00-CV-1210; United States District Court for the Southern District of Texas.
Such lawsuit, and other claims and causes of action possessed by Debtor against
Credit Lyonnais, shall be prosecuted after the Effective Date to the full extent
allowed by law at the sole and exclusive discretion of the Reorganized Debtor.
(c) Release of Liens: The payment of the Allowed Secured Claim of
Credit Lyonnais as described in Section 4.1(a) shall act as a release and
discharge of any and all Liens held by Credit Lyonnais securing same. In
addition, upon payment of the amounts described in Section 4.1(a), Credit
Lyonnais shall simultaneously execute and deliver releases of its Lien(s) in
accordance with SECTION 14.10 of the Plan.
(d) Discharge: The Distribution(s) paid to Credit Lyonnais under the
Plan on account of its Allowed Secured Claim shall fully satisfy and Discharge
the Claims of Credit Lyonnais.
4.2 CLASS 2 - ALLOWED OTHER SECURED CLAIMS.
(a) 100% Payment: Unless the Reorganized Debtor and the holder of an
Allowed Other Secured Claim agree to a different treatment, each holder of an
Allowed Other Secured Claim shall receive a Distribution in the amount of such
holder's Allowed Other Secured Claim, with interest at the applicable
contractual rate through the Effective Date (or such other interest as the Court
may order) and reasonable fees, costs and expenses through the Effective Date to
the extent such are allowable under contract or applicable law, in one Cash
payment on the Effective Date. In the absence of an applicable contract rate,
the holder of an Allowed Other Secured Claim shall receive the Case Interest
Rate through the Effective Date.
(b) Release of Liens: The payment of the Allowed Other Secured Claims
as described in Section 4.2(a) shall act as a release and discharge of any and
all Liens held by Other Secured Claimants securing same. In addition, upon
payment of the amounts described in Section 4.2(a), each holder of an Allowed
Other Secured Claim shall simultaneously execute and deliver releases of its
Lien(s) in accordance with SECTION 14.10 of the Plan.
(c) Discharge: The Distribution(s) paid to Other Secured Claims under
the Plan on account of their Allowed Other Secured Claims shall fully satisfy
and Discharge the Claims of Other Secured Claimants.
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4.3 CLASS 3 - ALLOWED M&M LIEN CLAIMS.
(a) 100% Payment: Unless the Reorganized Debtor and the holder of an
Allowed M&M Lien Claim agree to a different treatment, the holder of an Allowed
M&M Lien Claim shall receive a Distribution in the amount of such holder's
Allowed M&M Lien Claim, with interest at the applicable contractual rate through
the Effective Date (or such other interest rate as the Court may order) and
reasonable fees, costs and expenses through the Effective Date to the extent
such are allowable under contract or applicable law, in one Cash payment on the
Effective Date. In the absence of an applicable contract rate, the holder of an
Allowed M&M Lien Claim shall receive the Case Interest Rate through the
Effective Date.
(b) Release of Liens: The payment of the Allowed M&M Lien Claims as
described in Section 4.3(a) shall act as a release and discharge of any and all
Liens held by M&M Lien Claimants securing same. In addition, upon payment of the
amounts described in Section 4.3(a), each holder of an Allowed M&M Lien Claim
shall simultaneously execute and deliver releases of their Lien(s) in accordance
with SECTION 14.10 of the Plan.
(c) Discharge: The Distribution(s) paid to M&M Lien Claims under the
Plan on account of their Allowed M&M Lien Claims shall fully satisfy and
Discharge the Claims of M&M Lien Claimants.
4.4 CLASS 4 - ALLOWED PRIORITY NON-TAX CLAIMS.
Each holder of an Allowed Priority Non-tax Claim shall receive a
Distribution in the full amount of such holder's Allowed Priority Non-tax Claim,
without accrued interest, in one Cash payment on the Effective Date.
4.5 CLASS 5 - ALLOWED GENERAL UNSECURED CLAIMS.
Each holder of an Allowed General Unsecured Claim shall receive a
Distribution in the full amount of such holder's Allowed General Unsecured
Claim, with interest from the Petition Date through the Effective Date at the
applicable contractual rate (or such other interest rate as the Court may
order), payable in one Cash payment on the Effective Date. In the absence of an
applicable contract rate, the holder of an Allowed General Unsecured Claim shall
receive the Case Interest Rate from the Petition Date through the Effective
Date.
4.6 CLASS 6 - ALLOWED CLAIMS OF MMS.
The Debtor and MMS have reached an agreement with respect to the
treatment of the MMS Claim. See Receipt, Release and Settlement Agreement (the
"Settlement"), attached as an Exhibit to the Disclosure Statement. The
Settlement shall be approved as part of the Confirmation Order and the
Settlement's effective date shall coincide with the Plan's Effective Date. The
Debtor and the MMS shall execute the Settlement by the Plan's Effective Date.
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4.7 CLASS 7 - EQUITY INTERESTS.
All Equity Interests shall be retained as of the Effective Date.
Holders of Equity Interests shall not receive Distributions under the Plan
unless and until the Reorganized Debtor pays or causes to be paid all Allowed
Claims in full.
ARTICLE 5
PROVISIONS FOR TREATMENT OF
UNCLASSIFIED CLAIMS UNDER THE PLAN
5.1 TREATMENT OF ADMINISTRATIVE CLAIMS.
All Administrative Claims against the Debtor shall be treated as
follows:
(a) Time for Filing Administrative Claims. The holder of an
Administrative Claim, other than (a) a Fee Claim, (b) a claim for 2000
ad valorem property taxes, or (c) a liability incurred and payable in
the ordinary course of business by the Debtor after the Petition Date,
must file with the Bankruptcy Court and serve on the Debtor, the
Committee and their counsel notice of such Administrative Claim prior
to the commencement of the Confirmation Hearing. Such notice must
include at a minimum: (a) the name of the holder of the Claim; (b) the
amount of the Claim; and (c) the basis of the Claim. Failure to file
and serve this notice timely and properly shall result in the
Administrative Claim being forever barred and Discharged.
(b) Time for Filing Fee Claims. Each Professional or other
entity that holds or asserts an Administrative Claim that is a Fee
Claim incurred before the Effective Date shall file with the Bankruptcy
Court, and serve on all parties required to receive notice, a Fee
Application within such time as the Court may order. The failure to
file the Fee Application timely shall result in the Fee Claim being
forever barred and Discharged. To the extent necessary, entry of the
Confirmation Order shall amend and supersede any previously entered
order of the Bankruptcy Court regarding procedures for the payment of
Fee Claims.
(c) Allowance of Administrative Claims. An Administrative
Claim with respect to which notice has been properly filed pursuant to
SECTION 5.1(a) of the Plan shall become an Allowed Administrative Claim
only to the extent allowed by Final Order. An Administrative Claim that
is a Fee Claim, and with respect to which a Fee Application has been
properly filed pursuant to SECTION 5.1(b) of the Plan, shall become an
Allowed Administrative Claim only to the extent allowed by Final Order.
(d) Payment of Allowed Administrative Claims. Each holder of
an Allowed Administrative Claim against the Debtor shall receive on the
Effective Date (a) the amount
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of such holder's Allowed Claim in one Cash payment or (b) such other
treatment as may be agreed upon in writing by the Reorganized Debtor
and such holder; provided, however, that an Administrative Claim
representing a liability incurred in the ordinary course of business of
the Debtor may be paid in the ordinary course of business by the
Debtor; and provided further that the payment of an Allowed
Administrative Claim which is a Cure Payment shall be paid in six equal
monthly installments, due on the tenth day of the month, with the first
such installment being due and payable on the first tenth day of the
month to occur after the latter of the Effective Date or the date of
allowance of such Claim by Final Order.
5.2 TREATMENT OF PRIORITY TAX CLAIMS.
Each holder of an Allowed Priority Tax Claim shall receive a
Distribution in the full amount of such holder's Allowed Priority Tax Claim,
without accrued interest, in one Cash payment on the Effective Date.
ARTICLE 6
ACCEPTANCE OR REJECTION OF THE PLAN;
EFFECT OF REJECTION BY ONE OR MORE
CLASSES OF CLAIMS OR EQUITY INTERESTS
6.1 CLASSES ENTITLED TO VOTE.
Classes 1 through 7 are unimpaired, therefore, are not entitled to vote
to accept or reject the Plan.
6.2 PRESUMED ACCEPTANCE OF PLAN.
All classes of Claims and Equity Interests under the Plan are
unimpaired, therefore, are presumed conclusively to have accepted the Plan
pursuant to 11 U.S.C. Section 1126(f).
ARTICLE 7
MEANS FOR IMPLEMENTATION OF THE PLAN
7.1 FUNDING MECHANISM FOR 100% PAYMENT.
(a) Senior Secured Notes Offering: The Reorganized Debtor shall raise
new financing by the closing and issuance of a $130 million senior secured notes
(the "Secured Notes") offering by the Reorganized Debtor (the "Notes
Transaction"), within the later of thirty-eight (38) days after the entry of the
Confirmation Order or June 11, 2001 (the "Transaction Deadline"). The Secured
Notes issued by the Reorganized Debtor under the Notes Transaction shall be
legal, valid and binding obligations of the Reorganized Debtor and shall be
secured by a first priority and perfected
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Lien on substantially all of the Reorganized Debtor's property. The funds
generated from the Notes Transaction shall be used to pay all Allowed Claims in
full on the Effective Date and shall serve as new financing for the Reorganized
Debtor. Conditions precedent to the closing and funding of the Notes
Transactions shall include, without limitation, (a) entry of the Confirmation
Order by the Bankruptcy Court, (b) the Confirmation Order shall have become a
Final Order, and (c) the release of all Liens held by holders of Secured Claims
and M&M Lien Claims on the Effective Date (save and except for any permitted
liens allowed under the Notes Transaction documents) as required in SECTION
14.10 of the Plan. If the Notes Transaction does not close and fund on or before
the Transaction Deadline, then the Effective Date shall not have occurred, this
Plan shall cease to be effective, and in that event, the Confirmation Order
shall cease to be effective, shall terminate and automatically be set aside
(without further motion), the same as if it had not been entered.
Notwithstanding the foregoing, it shall not be an event of default of the Plan
if the Notes Transaction closes in an amount less than $130 million provided
that it closes in amount of funds net to the Reorganized Debtor so that the
Reorganized Debtor is able to fully pay all amounts due and owing on the
Effective Date, together with all Administrative Claims estimated to be filed.
(b) Commitment to Sell Certain Oil and Gas Properties: In the event
that an acceptable purchase and sale agreement can be negotiated, the Debtor
shall sell the oil and gas properties designated by the Marketing Agent as the
"California Package" to the party who submitted the highest bid pursuant to the
Data Room Process. The closing of such sale may occur prior to the Confirmation
Date. The Debtor may also sell other oil and gas properties to parties who
submitted bids pursuant to the Data Room Process or may establish other
procedures for the sale of some or all of its remaining oil and gas properties.
The Debtor anticipates selling its interest in Ship Shoal 58 to an interested
party prior to the Effective Date pursuant to a motion under section 363 of the
Bankruptcy Code.
(c) Cash on Hand: On the Effective Date, the Reorganized Debtor shall
contribute all or a portion of its cash on hand to fund the Plan.
7.2 APPROVAL OF FUNDING MECHANISM AND RELATED AGREEMENTS.
The Plan shall be considered a motion, pursuant to 11 U.S.C. Section
363 and any other applicable provision of the Bankruptcy Code to approve the
funding mechanism and agreements referenced herein and attached as exhibits to
the Disclosure Statement.
7.3 DEBTOR ACTIONS.
The Reorganized Debtor shall be appointed the representative of the
estate for purposes of prosecuting any and all Avoidance Actions and Debtor
Actions. Because this is a 100% payment plan, the Reorganized Debtor shall not
prosecute Avoidance Actions under Chapter 5 of the Bankruptcy Code. The
Reorganized Debtor, its board of directors, officers, attorneys and other
professional advisors shall have no liability for pursuing or not pursuing any
such Avoidance Actions and Debtor Actions vested in the Reorganized Debtor
pursuant to this Plan.
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7.4 CONTINUED CORPORATE EXISTENCE.
The Reorganized Debtor shall continue in existence as of the Effective
Date of the Plan, in accordance with Texas law and pursuant to the charter and
by-laws in effect prior to the Effective Date, except to the extent such
charters and by-laws are amended as required by the Plan.
7.5 CORPORATE AUTHORITY.
All actions and transactions contemplated under the Plan, including,
but not limited to, the issuance of debt instruments, promissory notes and
related securitization documents, and stock, shall be authorized upon
confirmation of the Plan without the need of further board or stockholder
resolutions, approval, notice or meetings, other than the notice provided by
serving notice of this Plan on all known creditors of the Debtor, all holders of
Equity Interests as of the Confirmation Date, and all current directors of the
Debtor. The Confirmation Order shall include provisions dispensing with the need
of further board or stockholder resolutions, approval, notice or meetings and
authorizing and directing the President and Secretary of the Debtor and the
Reorganized Debtor to execute such documents necessary to effectuate the Plan,
which documents shall be binding on the Debtor, the Reorganized Debtor, the
Creditors and holders of Equity Interests.
7.6 CHARTER AND BY-LAWS.
The charter and by-laws of the Debtor, which will become the charter
and by-laws of the Reorganized Debtor shall be amended as necessary to satisfy
the provisions of this Plan and the Bankruptcy Code.
7.7 ELECTION OF DIRECTORS AND OFFICERS.
The directors and officers of the Debtor holding such positions on the
Confirmation Date shall serve as the initial directors and officers of the
Reorganized Debtor from the Effective Date until the initial shareholders'
meeting and the subsequent initial directors' meeting. The tenure and manner of
selection of the directors and officers of the Reorganized Debtor shall be as
provided in the charter and by-laws of the Debtor, as may be amended hereby to
accommodate the transactions contemplated under the Plan.
7.8 POWERS AND DUTIES OF THE REORGANIZED DEBTOR WITH RESPECT TO
CONSUMMATION OF THE PLAN.
The Reorganized Debtor (and, to the extent necessary, the Debtor) shall
be empowered to: (a) take all steps and execute all instruments and documents
necessary to effectuate the Plan including, but not limited to, all instruments
and documents necessary to effectuate the Notes Transaction; (b) make
Distributions contemplated by the Plan; (c) comply with the Plan and the
obligations thereunder; (d) employ, retain or replace Professionals to represent
it with respect to its responsibilities; and (e) exercise such other powers as
may be vested in the Reorganized Debtor
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pursuant to order of the Court or pursuant to the Plan or as the Reorganized
Debtor deems to be necessary and proper to carry out the provisions of the Plan.
The Reorganized Debtor shall have the duties of carrying out the provisions of
the Plan, which shall include taking or not taking any action that the
Reorganized Debtor deems to be in furtherance of the Plan.
7.9 ASSUMPTION OF LIABILITIES.
The liability for and obligations under the Plan shall be assumed by
and become the sole obligations of the Reorganized Debtor.
ARTICLE 8
CONDITIONS PRECEDENT
8.1 CONDITIONS PRECEDENT TO EFFECTIVE DATE OF THE PLAN.
The occurrence of the Effective Date of the Plan is subject to
satisfaction of the following conditions precedent:
(a) The Confirmation Order shall have become a Final Order;
(b) All conditions to the Notes Transaction have been
satisfied or waived such that the Notes Transaction closes and funds on
or before the Transaction Deadline; and
(c) All documents effectuating the Plan shall have been
executed and delivered by the parties thereto, and all conditions to
the effectiveness of such documents shall have been satisfied or waived
as provided therein.
8.2 WAIVER OF CONDITIONS.
Other than the conditions precedent (a) that the Confirmation Order
shall have become a Final Order and (b) that the Notes Transaction closes and
funds on or before the Transaction Deadline, which conditions precedent shall
not be waived, the conditions to the Effective Date may be waived, in whole or
in part, by the Reorganized Debtor, at any time, without notice, an order of the
Bankruptcy Court or any further action other than proceeding to consummation of
the Plan. The failure to satisfy or waive any condition may be asserted by the
Reorganized Debtor regardless of the circumstances giving rise to the failure.
The failure of the Reorganized Debtor to exercise any of the foregoing rights
shall not be deemed a waiver of any other rights and each right shall be deemed
an ongoing right that may be asserted at any time.
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ARTICLE 9
EFFECTS OF PLAN CONFIRMATION
9.1 DISCHARGE.
Except as otherwise provided in the Plan or in the Confirmation Order,
on the Effective Date, the rights afforded in the Plan and the payments and
Distributions to be made hereunder shall Discharge all debts and Claims of any
kind, nature or description whatsoever that arose before the Confirmation Date
against the Debtor or any of its assets or properties to the fullest extent
permitted by 11 U.S.C. Section 1141; upon the Effective Date, all existing
Claims against the Debtor that arose before the Confirmation Date shall be, and
shall be deemed to be, Discharged; and all holders of Claims shall be precluded
from asserting against the Debtor or the Reorganized Debtor, or any of their
assets or properties, any other or further Claim based upon any act or omission,
transaction or other activity of any kind or nature that occurred or arose
before the Confirmation Date, whether or not such holder filed a proof of Claim.
Confirmation (subject to the occurrence of the Effective Date) of the Plan and
the obligations imposed on the Debtor therein shall be in complete satisfaction,
Discharge and release of all Claims of any nature whatsoever that arose before
the Confirmation Date against the Debtor or any of the assets or properties of
the Debtor or the Reorganized Debtor; and, upon the Effective Date, the Debtor
shall be deemed Discharged and released from any and all Claims that arose
before the Confirmation Date, and all debts of the kind specified in 11 U.S.C.
Sections 502(g), 502(h) or 502(i) that arose before the Confirmation Date,
whether or not (a) a proof of Claim based upon such debt is filed or deemed
filed under 11 U.S.C. Section 501; (b) a Claim based upon such debt is allowed
under 11 U.S.C. Section 502; or (c) the holder of a Claim based upon such debt
has accepted the Plan. Except as provided herein or in the Confirmation Order,
the Confirmation Order shall be a judicial determination of Discharge of all
liabilities of the Debtor that arose before the Confirmation Date. As provided
in 11 U.S.C. Section 524, such Discharge shall void any judgment against the
Debtor or the Reorganized Debtor at any time obtained to the extent it relates
to a Claim Discharged and operates as an injunction against the prosecution of
any action against the Debtor or the Reorganized Debtor, or the property of any
of them, to the extent it relates to a Claim Discharged.
9.2 NO DISCHARGE OF NOTES TRANSACTION.
Notwithstanding anything in this Plan or the Confirmation Order to the
contrary, all obligations or indebtedness of the Debtor and/or the Reorganized
Debtor incurred in connection with the Notes Transaction, including but not
limited to, any obligations or indebtedness arising under (a) the Secured Notes;
(b) the purchase agreement to be entered into among the Debtor, Tri-Union
Operating Company, Tribo and Jefferies; (c) the engagement letter dated March
23, 2001 between the Debtor and Jefferies; and (d) all other indentures,
security or collateral documents executed in connection with the Notes
Transaction and any Liens granted in connection therewith shall be the
obligations and indebtedness of the Reorganized Debtor and shall survive, remain
operative, legally binding and in full force and effect and shall not be subject
to (x) any discharge of the Debtor under
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11 U.S.C. Section 1141, (y) the Discharge, injunction or release provisions of
this Plan or the Confirmation Order, or (z) the provisions of 11 U.S.C. Section
524.
9.3 VESTING.
Except as otherwise provided in the Plan or in the Confirmation Order,
on the Effective Date, the Reorganized Debtor shall be vested with all of the
property of the estate free and clear of all Claims, Liens, encumbrances,
charges and other interests of Creditors and Equity Interests that arose prior
to the Confirmation Date and shall thereafter hold, use, dispose or otherwise
deal with such property and operate its business free of any restrictions
imposed by the Bankruptcy Code or by the Court. Such vested property shall
include, but is not limited to, Avoidance Actions and Debtor Actions, whether
known or unknown, asserted or unasserted, at law or equity, and whether arising
pursuant to the Bankruptcy Code or other applicable law.
9.4 INJUNCTIONS.
The Confirmation Order shall contain such injunctions as may be
necessary to effectuate the Discharge of the Debtor provided herein. Without
limiting the generality of the foregoing, such injunction shall include an
absolute prohibition from collecting Claims that arose prior to the Confirmation
Date in any manner other than as provided for in the Plan. The injunction shall
also prohibit any Utility from seeking or obtaining a security deposit, altering
usual billing practices or otherwise refusing or discontinuing services for a
period of 18 months after the Effective Date; provided, however, that a Utility
will no longer be subject to such injunction in the event that the Reorganized
Debtor fails to pay all post-confirmation utility bills no later than 20 days
after such bills are due.
9.5 RESPONSIBLE PARTY INJUNCTION.
The Confirmation Order shall constitute and provide for an injunction
by the Bankruptcy Court as of the Effective Date against any holder of a
Priority Tax Claim or holder of any other tax Claim that arose prior to the
Confirmation Date from commencing or continuing any action or proceeding against
any responsible person or officer or director of the Debtor that otherwise would
be liable to such holder for payment of a Priority Tax Claim or any other tax
Claim so long as the Reorganized Debtor is not in default of the payment terms
of such Priority Tax or any other tax Claim. All amounts paid by the Reorganized
Debtor on account of any Allowed Claim held by a governmental entity shall be
applied first to any "trust fund" amounts owing, then to any other balances due.
9.6 LAWSUITS.
On the Effective Date, all lawsuits, litigations, administrative
actions or other proceedings, judicial or administrative, in connection with the
assertion of a Claim against the Debtor that arose prior to the Confirmation
Date, shall be dismissed as to the Debtor and the Reorganized Debtor,
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except proof of Claims and/or objections thereto pending in the Bankruptcy
Court. Such dismissal shall be with prejudice to the assertion of such Claim in
any manner other than as prescribed by the Plan. All parties to any such action
shall be enjoined by the Bankruptcy Court in the Confirmation Order from taking
any action to impede the immediate and unconditional dismissal of such actions.
All lawsuits, litigations, administrative actions or other proceedings, judicial
or administrative, in connection with the assertion of a claim(s) by the Debtor
against a Person shall not be dismissed only with respect to the claim(s)
asserted by the Debtor, and shall become property of the Reorganized Debtor to
prosecute, settle or dismiss as the Reorganized Debtor may determine.
9.7 INSURANCE.
Confirmation and consummation of the Plan shall have no effect on
insurance policies of the Debtor in which the Debtor is or was the insured
party; the Reorganized Debtor shall become the insured party under any such
policies. Each insurance company is prohibited from, and the Confirmation Order
shall constitute an injunction against, denying, refusing, altering or delaying
coverage on any basis regarding or related to the Debtor's bankruptcy, the Plan
or any provision within the Plan.
9.8 SETOFF AND OTHER RIGHTS.
In the event that the Debtor has a claim of any nature whatsoever
against the holder of a Claim, the Debtor or Reorganized Debtor may, but is not
required to, setoff against such Claim (and any payments or other Distributions
to be made in respect of such Claim hereunder), subject to the provisions of 11
U.S.C. Section 553. Neither the failure to setoff nor the allowance of any Claim
under the Plan shall constitute a waiver or release by the Debtor or Reorganized
Debtor of any Claim that the Debtor or Reorganized Debtor has against the holder
of a Claim.
9.9 RELEASE OF COMMITTEE AND ESTATE PROFESSIONALS.
Neither the Debtor, the Committee, the Debtor Representatives, or the
Committee Representatives shall have or incur any liability to any holder of a
Claim or Equity Interest that arose before the Confirmation Date for any act,
event or omission in connection with, or arising out of, the Chapter 11 Case,
the confirmation of the Plan, the consummation of the Plan or the administration
of the Plan or the property to be distributed under the Plan, except for willful
misconduct or gross negligence; provided, however, nothing set forth in this
Plan or in the Confirmation Order shall limit or reduce the scope of any
indemnity or release granted in favor of Jefferies or any Jefferies
Representatives in connection with the Notes Transaction. Each Representative of
the Debtor and each Representative of the Committee which served in such
capacity from and after the Petition Date shall be released from all claims;
demands or suit; known or unknown; fixed or contingent; liquidated or
unliquidated; whether or not asserted; arising prior to, upon, or after the
Petition Date; which may held or asserted by the Debtor, Reorganized Debtor, any
Creditor, and current or former holder of an Equity Interest as of the Effective
Date.
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Notwithstanding anything to the contrary contained in this Plan, each
of the Debtor, the Committee, the Debtor Representatives, the Committee
Representatives, Jefferies and the Jefferies Representatives shall be entitled
to the full protections of 11 U.S.C. Section 1125(e), including all such
protections as they relate to the offer, issuance, sale or purchase of the
Secured Notes under the Notes Transaction.
9.10 THE COMMITTEE.
The Committee shall continue in existence after the Effective Date for
the following limited purposes: (a) to participate in matters related to
implementation of the Escrow Account until the appointment of the Disbursing
Agent set forth in SECTION 11.9 ; (b) to review, prepare and prosecute Fee
Applications for a period not to exceed 180 days after the Effective Date;
provided, however, that the Committee may participate in any other proceeding
occurring after the Effective Date upon appropriate application to and approval
of the Bankruptcy Court.
ARTICLE 10
RETENTION OF JURISDICTION
10.1 SCOPE OF JURISDICTION.
Pursuant to 28 U.S.C. Sections 1334 and 157, the Bankruptcy Court shall
retain and have jurisdiction over all matters arising in, arising under and
related to the Chapter 11 Case and the Plan pursuant to, and for the purposes of
11 U.S.C. Sections 105(a) and 1142 and for, among other things, the following
purposes:
a. To hear and determine pending applications for the
assumption or rejection of Executory Contracts and the allowance of
Claims resulting therefrom;
b. To hear and determine any and all adversary proceedings,
applications and contested matters, including any remands of appeals;
c. To ensure that Distributions to holders of Allowed Claims
are accomplished as provided herein;
d. To hear and determine any timely objections to or
applications concerning Claims or the allowance, classification,
priority, estimation or payment of any Claim or Equity Interest;
e. To enter and implement such orders as may be appropriate in
the event the Confirmation Order is for any reason stayed, revoked,
modified, reversed or vacated;
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f. To enter and implement such orders as may be necessary or
appropriate to execute, interpret, implement, consummate or enforce the
Plan and the transactions contemplated hereunder;
g. To consider any modification of the Plan pursuant to 11
U.S.C. Section 1127, to cure any defect or omission or to reconcile any
inconsistency in any order of the Bankruptcy Court, including, without
limitation, the Confirmation Order;
h. To hear and determine all Fee Applications and Fee Claims;
i. To hear and determine disputes arising in connection with
the execution, interpretation, implementation, consummation or
enforcement of the Plan;
j. To enter and implement orders or take such other actions as
may be necessary or appropriate to restrain interference by any entity
with the consummation or implementation of the Plan, including, without
limitation, to issue, administer and enforce injunctions provided for
in the Plan and the Confirmation Order;
k. To recover all assets of the Debtor and property of the
estates, wherever located;
l. To hear and determine matters concerning state, local and
federal taxes in accordance with 11 U.S.C. Sections 346, 505 and 1146;
m. To hear and determine any other matter not inconsistent
with the Bankruptcy Code and title 28 of the United States Code that
may arise in connection with or related to the Plan; and
n. To enter a Final Decree closing the Chapter 11 Case.
10.2 FAILURE OF THE BANKRUPTCY COURT TO EXERCISE JURISDICTION.
If the Bankruptcy Court abstains from exercising, or declines to
exercise, jurisdiction or is otherwise without jurisdiction over any matter
arising in, arising under or related to the Chapter 11 Case, including the
matters set forth in SECTION 10.1 of the Plan, this ARTICLE 10 shall have no
effect upon and shall not control, prohibit or limit the exercise of
jurisdiction by any other court having jurisdiction with respect to such matter.
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ARTICLE 11
PROVISIONS GOVERNING RESOLUTION OF AND
DISTRIBUTIONS ON ACCOUNT OF CLAIMS UNDER THE PLAN
11.1 DATE OF DISTRIBUTIONS.
Any Distributions and deliveries to be made under the Plan shall be
made on the Effective Date, except as otherwise provided for herein, or as the
Bankruptcy Court may order. Notwithstanding the foregoing, no Distribution shall
be made with respect to royalties due to de minimus amounts pursuant to
applicable law.
11.2 DISTRIBUTIONS.
The Reorganized Debtor shall fund the Distributions required under the
Plan.
11.3 MEANS OF CASH PAYMENT.
Cash payments made pursuant to the Plan shall be in U.S. funds, by
check drawn on a domestic bank, or, at Reorganized Debtor's option, by wire
transfer from a domestic bank, except that payments made to foreign creditors
holding Allowed Claims may be in such funds and by such means as are customary
or as may be necessary in a particular foreign jurisdiction.
11.4 DELIVERY OF DISTRIBUTIONS.
Subject to Bankruptcy Rule 9010, Distributions to holders of Allowed
Claims shall be made at the address of each such holder as set forth on the
proofs of Claim or proofs of Equity Interest filed by such holders (or at the
last known addresses of such a holder if no proof of Claim or proof of Equity
Interest is filed or if the Debtor has been notified in writing of a change of
address), except as provided below. If any holder's Distribution is returned as
undeliverable, no further Distributions to such holder shall be made unless and
until the Reorganized Debtor is notified of such holder's then current address,
at which time all Distributions not previously made shall be made to such holder
without interest. Amounts in respect of undeliverable Distributions shall be
returned to the Reorganized Debtor until such Distributions are claimed. All
claims for undeliverable Distributions shall be made on or before the second
anniversary of the Effective Date. After such date, all unclaimed property shall
revert to the Reorganized Debtor or any successor thereto, and the Claim of any
holder with respect to such property shall be discharged and forever barred.
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11.5 DISTRIBUTIONS TO CERTAIN SCHEDULED CLAIMS.
Except as provided in Section 11.8, to the extent a Claim has not been
designated by the Debtor as disputed, contingent and unliquidated in the
Schedules filed on March 26, 2001 (the "March Schedules"), such Claims shall
become Allowed Claims as to the amount reflected in the March Schedules. The
Reorganized Debtor shall be entitled to file a subsequent objection to such
Allowed Claim if the holder of said Claim requests allowance of or files a proof
of Claim in an amount different than the one reflected in the March Schedules
but only with respect to the incremental amount.
11.6 DISTRIBUTIONS ON ACCOUNT OF UNDISPUTED PORTIONS OF A CLAIM.
Except as provided in Section 11.8, to the extent the Debtor or the
Reorganized Debtor does not file an objection to the entire amount of a Claim,
said portion of the Claim shall become Allowed and paid on the Effective Date.
11.7 PAYMENT OF CONTESTED CLAIM OF CREDIT LYONNAIS' SECURED CLAIM.
In the event a portion of Credit Lyonnais' Secured Claim is a Contested
Claim as of the Effective Date, the Reorganized Debtor shall pay the amount of
said Contested Claim on the Effective Date with a reservation of rights as
stated herein. The Reorganized Debtor shall have the right to object to the
Contested Claim after the Effective Date and Credit Lyonnais shall be required
to refund any excess amounts previously paid by the Reorganized Debtor within 15
days from the entry of a Final Order adjudicating said matter, with interest at
the appropriate legal rate.
11.8 PAYMENT OF ALLOWED AND CONTESTED CLAIMS IN CLASSES 2 AND 3.
(a) Funding. On the Effective Date of the Plan, the Reorganized Debtor
shall transfer sufficient Cash from its operating account to fund all Claims in
Class 3, whether Allowed or Contested. The initial funding required shall
consist of (i) the amount of the Allowed Claims in Classes 2 and 3 and, with
respect to Contested Claims in Class 3, the lesser of the (i) amount agreed by
the Reorganized Debtor and the holder of a Contested Claim; (ii) the face amount
reflected in the proof of Claim filed by the holder of a Contested Claim on or
before April 1, 2001; or (iii) the estimated amount allowed pursuant to Court
order (the "Initial Escrow Funding"). To the extent estimation is requested by
the Reorganized Debtor or the holder of a Contested Claim, said estimation
proceeding shall conclude no later than three (3) days prior to the Effective
Date. The Reorganized Debtor shall be required to provide additional Cash in the
event that the Initial Escrow Funding is not sufficient to cover the ultimate
Allowance of Contested Claims.
With respect to Contested Claims in Class 2, the Reorganized Debtor
shall transfer a maximum of $1,352,112.00 in Cash as part of the Initial Escrow
Funding. The Reorganized Debtor and/or the holder of a Contested Claim in Class
2 shall have the right to request an upward or downward adjustment to the
Initial Escrow Funding upon notice and a hearing.
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(b) The Lien Escrow Account. The Initial Escrow Funding (and any
subsequent funding required by the Reorganized Debtor) shall be deposited into a
separate interest bearing account, which account shall be under the sole custody
and control of a lien agent selected by the Reorganized Debtor (the "Lien
Agent"). The Reorganized Debtor and the Lien Agent shall mutually agree on an
appropriate financial institution for the Escrow Account. (the "Lien Escrow
Account"). Any Liens, Claims and encumbrances asserted by the holders of Claims
in Classes 2 and 3 on the Confirmation Date shall attach to the Lien Escrow
Account. The Reorganized Debtor's entitlement to the return of any residual
amounts of the Lien Escrow Account may also be subject to any interest or Lien
that the Reorganized Debtor may be entitled to convey to a third party for any
portion of excess and/or unused funds in the Lien Escrow Account.
(c) Duties of Lien Agent. The duties of the Lien Agent shall be to: (i)
open the Lien Escrow Account; (ii) disburse funds to an Allowed Claim as soon as
the holder of such Claim tenders a release of its Lien(s) to the Lien Agent,
which release shall be in a form satisfactory to the Reorganized Debtor; (iii)
disburse funds to a Contested Claim and/or the Reorganized Debtor promptly after
said Contested Claim becomes an Allowed Claim and the holder of said Claim
tenders the release described in (ii) above; (iv) provide copies of banks
statements to the Reorganized Debtor, if requested; (v) provide the Reorganized
Debtor with an accounting of sources and uses of Cash every six months, said
initial six month period to begin on the date the Lien Escrow Account is opened;
and (vi) request additional funding from the Reorganized Debtor, if necessary.
(d) Compensation: The Reorganized Debtor and the Lien Agent shall agree
to a satisfactory compensation. The Reorganized Debtor shall pay for the
reasonable fees and expenses incurred by the Lien Agent in carrying the duties
described herein.
(e) Distribution After Allowance. Distributions to each holder of a
Contested Claim, to the extent that such Claim ultimately becomes an Allowed
Claim, shall be made in accordance with the provisions of the Plan governing the
class of Claims to which the respective holder belongs. With respect to any
Claim that is a Contested Claim, as soon as practicable after such Contested
Claim becomes an Allowed Claim and the release of Lien(s) is tendered, the Lien
Agent shall distribute to the holder of such Claim the amount of the Allowed
Claim. To the extent a Contested Claim is Allowed in an amount that is less than
the reserved amount for said Claim, the Lien Agent shall distribute the
difference to the Reorganized Debtor, if the Reorganized Debtor so requests, on
the same date that said Allowed Claim is receiving its Distribution from the
Lien Escrow Account.
(f) Accrual of Interest Pending Allowance of Contested Claim. Contested
Claims in Classes 2 and 3 shall accrue interest at the rate specified in the
Lien Escrow Account until said Claims become Allowed Claims.
11.9 PAYMENT OF CONTESTED CLAIMS IN CLASS 5.
(a) Funding. On the Effective Date of the Plan, the Reorganized Debtor
shall transfer sufficient Cash from its operating account to fund a reserve for
the treatment of Contested Claims
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in Class 5, except as to Claims in 11.9(g). The initial funding required shall
consist of the lesser of the (i) amount agreed by the Reorganized Debtor and the
holder of a Contested Claim; (ii) the face amount reflected in the proof of
Claim filed by the holder of a Contested Claim on or before April 1, 2001; or
(iii) the estimated amount allowed pursuant to Court order (the "Initial Class 5
Funding"). To the extent estimation is requested by the Reorganized Debtor or
the holder of a Contested Claim in Class 5, said estimation proceeding shall
conclude no later than three (3) days prior to the Effective Date. The amount
reserved for each Class 5 Contested Claim shall not be subject to change and
shall remain on deposit in the Escrow Account until a Final Order is entered
adjudicating the Allowed Amount of the Contested Claim. The Reorganized Debtor
shall be required to provide additional Cash in the event that the Initial Class
5 Funding is not sufficient to cover the ultimate Allowance of Contested Claims.
(b) Escrow Account. The Initial Class 5 Funding (and any subsequent
funding required by the Reorganized Debtor) shall be deposited into a separate
interest bearing account (the "Escrow Account"), which account shall be free of
any Liens, Claims and encumbrances (other than the Claims asserted by the
holders of Contested Claims in Class 5 and any interest or Lien that the
Reorganized Debtor may be entitled to convey to a third party for any portion of
excess and/or unused funds in the Escrow Account) and shall be under the sole
custody and control of a disbursing agent selected by the Reorganized Debtor and
the Committee (the "Disbursing Agent"). The Reorganized Debtor and the
Disbursing Agent shall mutually agree on an appropriate financial institution
for the Escrow Account.
(c) Duties of Disbursing Agent. The duties of the Disbursing Agent
shall be to: (i) open the Escrow Account; (ii) disburse funds to Contested
Claims and/or the Reorganized Debtor promptly after a Contested Claim becomes an
Allowed Claim; (iii) provide copies of banks statements to the Reorganized
Debtor, if requested; (iv) provide the Reorganized Debtor with an accounting of
sources and uses of Cash every six months, said initial six month period to
begin on the date the Escrow Account is opened; and (v) request additional
funding from the Reorganized Debtor, if necessary.
(d) Compensation: The Reorganized Debtor and the Disbursing Agent shall
agree to a satisfactory compensation. The Reorganized Debtor shall pay for the
reasonable fees and expenses incurred by the Disbursing Agent in carrying the
duties described herein.
(e) Distribution After Allowance. Distributions to each holder of a
Contested Claim, to the extent that such Claim ultimately becomes an Allowed
Claim, shall be made in accordance with the provisions of the Plan governing the
class of Claims to which the respective holder belongs. With respect to any
Claim that is a Contested Claim, as soon as practicable after such Contested
Claim becomes an Allowed Claim, the Disbursing Agent shall distribute to the
holder of such Claim the amount of the Allowed Claim. To the extent a Contested
Claim is Allowed in an amount that is less than the reserved amount for said
Claim, the Disbursing Agent shall distribute the difference to the Reorganized
Debtor, if the Reorganized Debtor so requests, on the same date that said
Allowed Claim is receiving its Distribution from the Escrow Account.
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(f) No Escrow for Disputed Interest and/or Other Costs. Unless
otherwise agreed and as provided in the Confirmation Order, the Reorganized
Debtor shall not be required to escrow funds for disputed interest and/or fees,
costs and expenses which may be a part of a Contested Claim in Class 5.
Notwithstanding the foregoing, the Reorganized Debtor's obligation to pay the
contractual or other applicable rate or other costs shall not be impaired.
(g) No Escrow for Executory Contract Rejection Damages. Unless
otherwise agreed and as provided in the Confirmation Order, the Reorganized
Debtor shall not be required to escrow funds for any Claims referenced in
ARTICLE 13.2.
(h) Accrual of Interest Pending Allowance of Contested Claim. Contested
Claims in Class 5 shall accrue interest at the rate specified in the Escrow
Account until said Claims become Allowed Claims.
11.10 SETTLEMENT OF DISPUTED INTEREST WHEN OTHER PORTIONS OF A CLAIM ARE
ALLOWED; MECHANISM FOR RESOLUTION.
Except as provided in Section 11.8, where other portions of a Claim are
Allowed such that the only issue of a Contested Claim is the applicable rate of
interest, the holder of such Contested Claim shall have the option to settle
with the Reorganized Debtor on account of the disputed interest. Any holder of a
Claim with such disputed interest which voluntarily reduces its contract rate of
interest to 8% prior to the Effective Date shall be treated as an Allowed Claim
and paid on the Effective Date. In the event such disputed interest is not
resolved prior to the Effective Date, after notice and a hearing, the
Reorganized Debtor shall establish an expedited procedure for the resolution of
disputed interest, which procedure, subject to the Court's calendar, shall be in
place no later than 45 days after the Effective Date. Notwithstanding the
foregoing (except to Claims affected by SECTION 11.8), the undisputed portion of
a Claim will be paid as an Allowed Claim on the Effective Date.
11.11 EXCULPATION REGARDING DISTRIBUTIONS.
The Reorganized Debtor, the Disbursing Agent, the Lien Agent and their
Representatives from and after the Effective Date, are hereby exculpated by all
Persons, holders of Claims and Equity Interests, entities and
parties-in-interest receiving Distributions under the Plan from any and all
Claims, causes of action and other assertions of liability arising out of the
discharge of the powers and duties conferred upon them by the Plan or any order
of the Bankruptcy Court entered pursuant to or in furtherance of the Plan or
applicable law, except solely for actions or omissions arising out of their
gross negligence or willful misconduct. No current holder of a Claim or an
Equity Interest and no Representative thereof, shall have or pursue any Claim or
cause of action (1) against the Reorganized Debtor, the Disbursing Agent, the
Lien Agent and their Representatives for making payments or taking any action in
accordance with the Plan or for implementing the provisions of the Plan or (2)
against any holder of a Claim for receiving or retaining payments or other
Distributions as provided for by the Plan.
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ARTICLE 12
PROCEDURES FOR OBJECTIONS TO CLAIMS UNDER THE PLAN
12.1 OBJECTION DEADLINE.
With respect to proofs of Claim listed on the Court's claims register
as of April 1, 2001, objections to Claims shall be filed with the Bankruptcy
Court and served upon the holders of each of the Claims to which objections are
made by the Effective Date. Unless extended by order of the Bankruptcy Court,
objections to Claims listed on the Court's claims register after April 1, 2000,
shall be filed with the Bankruptcy Court and served upon the holders of each of
said Claims to which objections are made no later than six months after the
Effective Date.
12.2 PROSECUTION OF OBJECTIONS.
On and after the Effective Date, except as the Bankruptcy Court may
otherwise order, the filing, litigation, settlement or withdrawal of all
objections may be made only by the Reorganized Debtor.
ARTICLE 13
PROVISIONS GOVERNING EXECUTORY CONTRACTS
AND UNEXPIRED LEASES UNDER THE PLAN
13.1 ASSUMPTION AND REJECTION OF CERTAIN EXECUTORY CONTRACTS AND UNEXPIRED
LEASES.
All Executory Contracts not heretofore rejected and to be rejected by
the Debtor shall be set forth in a motion to be filed prior to the commencement
of testimony on the Confirmation Hearing.
Except as provided in the Confirmation Order, all Executory Contracts
not heretofore rejected or set forth in a motion seeking rejection to be filed
prior to the Confirmation Hearing shall be deemed assumed as of the Effective
Date. In the event the Effective Date does not occur, the Debtor shall not be
deemed to have assumed any Executory Contracts. Confirmation of this Plan shall
be deemed (a) adequate assurance of prompt cure of any default under such
assumed Executory Contract solely based upon the Debtor's obligations in the
Plan to make Cure Payment and (b) adequate assurance of future performance under
such assumed Executory Contract.
13.2 BAR TO REJECTION DAMAGES.
If the rejection of an Executory Contract by the Debtor results in
damages to the other party or parties to such Executory Contract, a Claim for
such damages, if not heretofore evidenced by a filed proof of Claim, shall be
forever barred and shall not be enforceable against the Debtor, the Reorganized
Debtor or their respective properties or their agents, successors or assigns,
unless a proof of Claim is filed with the Bankruptcy Court and served upon
counsel for the Reorganized
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Debtor on or before 30 days after the entry of an order approving the motion
seeking the rejection of said Executory Contract.
ARTICLE 14
MISCELLANEOUS PROVISIONS
14.1 PAYMENT OF STATUTORY FEES.
All fees payable pursuant under 28 U.S.C. Section 1930 shall be paid
through the entry of a Final Decree in the Chapter 11 Case.
14.2 POST-CONFIRMATION DATE FEES AND EXPENSES OF PROFESSIONALS.
The Reorganized Debtor shall, in the ordinary course of business and
without the necessity for any notice, motion, fee application, or approval by
the Bankruptcy Court, pay the post-Confirmation Date reasonable fees and
expenses of the Professionals employed by the Reorganized Debtor or the
Committee. Any disputes regarding such fees and expenses shall be submitted to
the Bankruptcy Court.
14.3 BANKRUPTCY RESTRICTIONS.
From and after the Effective Date, the Reorganized Debtor shall no
longer be subject to the restrictions and controls provided by the Bankruptcy
Code or Bankruptcy Rules (e.g., 11 U.S.C. Sections 363, 364, Rule 9019), the
Bankruptcy Court, or the U.S. Trustee's guidelines. The Reorganized Debtor may
compromise Claims and controversies post-Effective Date without the need of
notice or Bankruptcy Court approval. The Reorganized Debtor may operate its
business in such manner as is consistent with companies not in bankruptcy
without the need of seeking Bankruptcy Court approval with regard to any aspect
of the Reorganized Debtor's business. No monthly operating reports will be filed
after the Effective Date; however, the Reorganized Debtor shall provide the U.S.
Trustee such financial reports as the U.S. Trustee may reasonably request until
the entry of a Final Decree.
14.4 BINDING EFFECT.
The Plan shall be binding upon and inure to the benefit of the Debtor,
the Reorganized Debtor, the holders of Claims, the holders of Equity Interests,
and all of their respective successors and assigns; provided, however, that if
the Plan is not confirmed, the Plan shall be deemed null and void and nothing
contained herein shall be deemed (a) to constitute a waiver or release of any
Claims by the Debtor or any other person, (b) to prejudice in any manner the
rights of the Debtor or any other person or (c) to constitute any admission by
the Debtor or any other person.
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14.5 GOVERNING LAW.
Unless a rule of law or procedure is supplied by federal law (including
the Bankruptcy Code and Bankruptcy Rules) or the law of the jurisdiction of
organization of any entity, the internal laws of the State of Texas shall govern
the construction and implementation of the Plan and any agreements, documents
and instruments executed in connection with the Plan or the Chapter 11 Case,
including the documents executed pursuant to the Plan; provided, however, any
document executed in connection with the Notes Transaction shall be governed by
the laws of the jurisdiction set forth therein.
14.6 MODIFICATION OF PLAN.
Modifications of the Plan may be proposed in writing by the Proponent
at any time before the Confirmation Date, provided that (a) the Plan, as
modified, meets the requirements of 11 U.S.C. Sections 1122 and 1123 and (b) the
Proponent shall have complied with 11 U.S.C. Section 1125. The Plan may be
modified at any time after the Confirmation Date and before substantial
consummation by the Proponent, provided that (i) the Plan, as modified, meets
the requirements of 11 U.S.C. Sections 1122 and 1123, (ii) the Bankruptcy Court,
after notice and a hearing, confirms the Plan as modified, under 11 U.S.C.
Section 1129 and (iii) the circumstances warrant such modifications. A holder of
a Claim or Equity Interest that has accepted or rejected the Plan shall be
deemed to have accepted or rejected, as the case may be, such Plan as modified,
unless, within the time fixed by the Bankruptcy Court, such holder changes its
previous acceptance or rejection.
14.7 CREDITOR DEFAULTS.
Any act or omission by a Creditor in contravention of a provision
within this Plan shall be deemed an event of default under this Plan. Upon an
event of default, the Reorganized Debtor may seek to hold the defaulting party
in contempt of the Confirmation Order. If such Creditor is found to be in
default under the Plan, such party shall pay the reasonable attorneys' fees and
costs of the Reorganized Debtor in pursuing such matter. Furthermore, upon the
finding of such a default by a Creditor, the Bankruptcy Court may (a) designate
a party to appear, sign and/or accept the documents required under the Plan on
behalf of the defaulting party, in accordance with Federal Rules of Civil
Procedure, Rule 70 or (b) make such other order as may be equitable which does
not materially alter the terms of the Plan as confirmed.
14.8 SEVERABILITY.
Should the Bankruptcy Court determine that any provision of the plan is
unenforceable either on its face or as applied to any Claim or Equity Interest
or transaction, the Proponent may modify the Plan in accordance with SECTION
14.6 of the Plan so that such provision shall not be applicable to the holder of
any Claim or Equity Interest. Such a determination of unenforceability shall not
(1) limit or affect the enforceability and operative effect of any other
provision of the Plan or (2) require the resolicitation of any acceptance or
rejection of the Plan.
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14.9 PREPAYMENT.
Except as otherwise provided in this Plan or the Confirmation Order,
the Debtor or the Reorganized Debtor shall have the right to prepay, without
penalty, all or any portion of an Allowed Claim at any time.
14.10 RELEASE OF LIENS.
Except as otherwise provided in this Plan or the Confirmation Order,
each holder of a Lien shall on the Effective Date (i) turn over and release to
the Reorganized Debtor any and all Collateral that secures or purportedly
secures such Secured Claim, as it pertains to the properties currently owned or
leased by the Debtor or such Lien shall automatically, and without further
action by the Debtor or Reorganized Debtor, be deemed released, and (ii) execute
such documents and instruments as the Reorganized Debtor requests to evidence
such Claim holder's release of such property or Lien. On the Effective Date, all
right, title and interest in any and all property of the estate shall vest in
the Reorganized Debtor free and clear of all Claims that arose prior to the
Confirmation Date, including, without limitation, Liens, escrows, charges,
pledges, encumbrances and/or security interests of any kind. No Distribution
hereunder shall be made to or on behalf of any Claim holder unless and until
such holder executes and delivers to the Debtor or Reorganized Debtor such
release of Liens or otherwise turns over and releases such Cash, pledge, or
other possessory Lien. It is anticipated that a closing shall be held on the
Effective Date and Distributions shall be made to holders of Allowed Secured
Claims simultaneously with release of Liens by holders of such Claims. In any
event, any such holder that fails to execute and deliver such release of Liens
within 90 days of the Effective Date shall be deemed to have no further Claim
against the Debtor, the Reorganized Debtor or its assets or property in respect
of such Claim and shall not participate in any Distribution hereunder.
14.11 CLOSING THE CASE.
Upon making Distributions on the Effective Date or such later date as
herein provided, the Plan shall be deemed substantially consummated and, upon
motion by the Reorganized Debtor, a Final Decree entered containing such
provisions as may be equitable. The Court may close the case, but retain
jurisdiction to hear and decide: any and all pending adversary proceedings,
applications and contested matters, including any remands of appeals; any and
all pending objections to Claims or the allowance, including with respect to the
classification, priority, estimation or payment of any Claim; and any and all
pending Fee Applications.
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DATED: May 9, 2001
Houston, Texas.
TRI-UNION DEVELOPMENT CORPORATION
By:
--------------------------------------
Richard Bowman, President
SHEINFELD, MALEY & KAY, P.C.
By:
--------------------------------------
Joel P. Kay
Millie A. Sall
Jenny Hyun
ATTORNEYS FOR THE DEBTOR
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