Exhibit 10.51
UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
In re: :
: Jointly Administered
BORDEN CHEMICALS AND : Case No. 01-1268 (RRM)
PLASTICS OPERATING LIMITED :
PARTNERSHIP, a Delaware limited :
partnership, et al., :
: Chapter 11
Debtors. :
ORDER (A) APPROVING ASSET PURCHASE AGREEMENT;
(B) AUTHORIZING SALE OF ADDIS ASSETS FREE AND CLEAR OF
LIENS, CLAIMS AND ENCUMBRANCES; (C) AUTHORIZING ASSUMPTION
AND ASSIGNMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
RELATED THERETO; AND (D) GRANTING RELATED RELIEF (DOCKET NO. 462)
This matter coming before the Court on the Motion of Debtors and Debtors in
Possession for an Order (A) Approving Asset Purchase Agreement; (B) Authorizing
Sale of Addis Assets Free and Clear of Liens, Claims and Encumbrances; (C)
Authorizing Assumption and Assignment of Executory Contracts and Unexpired
Leases Related Thereto; and (D) Granting Related Relief (the "Sale Motion"),
filed by the above-captioned debtors and debtors in possession (collectively,
the "Debtors"); the Court having (a) reviewed the Sale Motion, the underlying
Asset Purchase Agreement (the "Agreement") dated December 3, 2001 by and among
the Debtors and Shintech Louisiana, L.L.C. (the "Acquiror"), a copy of which is
attached to the Sale Motion as Exhibit A, and all pleadings and other filed
documents relating thereto and (b) heard the statements of counsel regarding the
relief requested in the Sale Motion at a hearing before the Court (the "Sale
Hearing"); the Court finding that: (a) the Court has jurisdiction over this
matter pursuant to 28 U.S.C. (S)(S)157 and 1334; (b) this is a core proceeding
pursuant to 28 U.S.C. (S)157(b)(2); (c) notice of the Sale Motion and the Sale
Hearing was
sufficient under the circumstances; (d) the Debtors' sale of the Addis Assets/1/
pursuant to the Agreement, free and clear of liens, claims, encumbrances,
pledges and security interests of any kind (collectively, "Property Interests"),
is allowable under section 363 of the Bankruptcy Code, is a sound exercise of
the Debtors' business judgment and is in the best interests of the Debtors'
estates; (e) the Assumed Contracts constitute an integral part of the Addis
Assets and the Debtors' assumption and assignment of the Assumed Contracts
(including, to the extent they become Assumed Contracts pursuant to the
Agreement, the Confidential Contracts) is allowable under section 365 of the
Bankruptcy Code, is supported by sufficient assurance of the Acquiror's ability
to satisfy the requirements of section 365(b)(1) of the Bankruptcy Code, is a
sound exercise of the Debtors' business judgment and is in the best interests of
the Debtors' estates; (f) the Debtors' disclosure of the terms and provisions
of, and any extradocumentary information concerning, the Confidential Contracts,
under the limited terms described in the Agreement and Sale Motion, is essential
to the sale of the Addis Assets, subject to the conditions set forth herein; (g)
the Debtors and the Acquiror have acted in "good faith" as defined by section
363(m) of the Bankruptcy Code; (h) the Debtors have marketed the Addis Assets
and conducted the sale process in compliance with the Bid Procedures (as defined
in the Sale Motion); and (i) the Transfer is within the scope of section 1146(c)
of the Bankruptcy Code; the Court having determined that the legal and factual
bases set forth in the Sale Motion and at the Sale Hearing establish just cause
for the relief granted herein;
IT IS HEREBY ORDERED THAT:
1. The Sale Motion is GRANTED as set forth below.
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/1/ Capitalized terms not defined herein have the meanings ascribed to them in
the Sale Motion or in the Agreement.
2. The Agreement is approved in all respects, and the Debtors are
authorized to enter into and perform their obligations under the Agreement.
3. The Debtors are authorized to sell the Addis Assets, on the terms
described in the Sale Motion and the Agreement, under sections 363(b) and (f) of
the Bankruptcy Code.
4. At Closing, the Addis Assets shall be sold and transferred free and
clear of all Property Interests, with the exception of Permitted Liens, with all
such Property Interests attaching to the proceeds of sale to the same extent and
with the same priority as each such Property Interest now attaches to or affects
the Addis Assets (including, without limitation, the Property Interests of the
Debtors' postpetition secured lenders, as set forth pursuant to prior order of
the Court), subject to the Court's power to determine the validity, extent and
priority of any such Property Interests, and subject to any claims and defenses
the Debtors may possess with respect thereto.
5. Except as expressly permitted or otherwise specifically provided by the
Agreement or this Order, all persons and entities holding Property Interests
(whether legal or equitable, secured or unsecured, matured or unmatured,
contingent or non-contingent, senior or subordinated) in the Addis Assets prior
to Closing, including, but not limited to, all debt security holders; equity
security holders; governmental, tax and regulatory authorities; lenders, trade
and other creditors; hereby are forever barred, estopped and permanently
enjoined from asserting their Property Interests against the Acquiror, its
successors or assigns, or against the Addis Assets.
6. The Acquiror hereby is granted and shall have the protections provided
in section 363(m) of the Bankruptcy Code.
7. The Acquiror shall not be deemed to be a successor to or of the Debtors
as a result of the acquisition of the Addis Assets pursuant to the terms of the
Agreement and this Order. Nothing in this Order or the Agreement shall be
construed to affect or otherwise alter any liability of the Acquiror of the
Addis Assets, which such Acquiror would otherwise have under applicable
environmental law or regulation as the current owner or operator of the Addis
Assets after the date of entry of this Order.
8. The Debtor received no competing bids for the Addis Assets and pursuant
to the Agreement, Acquiror will not receive payment of any break-up fees or
reimbursement of expenses. In the event the Debtor and Acquiror fail to
consummate the transactions contemplated by this Order, Acquiror shall not be
entitled to payment of any break-up fees or reimbursement of expenses.
9. Each and every federal, state, and local governmental agency or
department shall be, and hereby is, directed to accept any and all documents and
instruments necessary and appropriate to consummate the Agreement, including
without limitation, documents and instruments for recording in any governmental
agency or department required to transfer the Acquiror the names and any and all
other licenses or permits under the Debtors' ownership necessary for the
operations that are associated with the Addis Assets.
10. The terms and provisions of the Agreement and this Order shall be
binding in all respects upon, and shall inure to the benefit of the Acquiror,
the Debtors, the Debtors' estates, and their successors and assigns, including
any trustee that may be appointed in these cases or any superseding case under
chapter 7 of the Bankruptcy Code.
11. The Transfer shall not be taxed under any federal, state, local
municipal or other law imposing or claiming to impose a tax within the scope of
section 1146(c) of the Bankruptcy Code.
12. Pursuant to section 105(a) of the Bankruptcy Code, the Debtors are
authorized to disclose to the Acquiror the terms and provisions of, and any
extradocumetary information concerning, the Confidential Contracts, in
accordance with Section 6.9 of the Agreement.
13. Pursuant to Sections 105(a) and 365 of the Bankruptcy Code, and subject
to and conditioned upon the Closing, the Debtors' assumption of the Assumed
Contracts (including, to the extent they become Assumed Contracts pursuant to
the Agreement, the Confidential Contracts) and assignment of them to the
Acquiror on the terms set forth in the Agreement is hereby approved; provided,
however, the Debtors shall not assume and assign that portion of the letter
agreement dated August 3, 2001, by and between Debtors and Oxy Vinyls, LP, and
relating to the tolling of vinyl chloride monomer ("VCM") into polyvinyl
chloride ("PVC") resins.
14. The Acquiror will (i) cure, or provide adequate assurance of cure, of
defaults under any of the Assumed Contracts (including, to the extent they
become Assumed Contracts pursuant to the Agreement, the Confidential Contracts),
within the meaning of section 365(b)(1)(A) of the Bankruptcy Code; and (ii)
provide compensation or adequate assurance of compensation for actual pecuniary
losses resulting from defaults under any of the Assumed Contracts (including, to
the extent they become Assumed Contracts pursuant to the Agreement, the
Confidential Contracts), within the meaning of section 365(b)(1)(B) of the
Bankruptcy Code; provided, however, the Debtors shall not assume and assign that
portion of the letter agreement dated August 3, 2001, by and between Debtors and
Oxy Vinyls, LP, and relating to the tolling of VCM into PVC resins.
15. The Debtors and the Acquiror are authorized and directed to take the
necessary actions to consummate the transactions contemplated by the Agreement
and this Order.
16. In accordance with the prior order of this Court authorizing the
Debtors to retain and employ Taylor Strategic Divestitures ("Taylor"), Taylor
shall be entitled, in respect of the Transfer of the Addis Assets, to a flat fee
in the amount of $l,000,000 less the $350,000 non-refundable retainer the
Debtors paid to Taylor before the Petition Date, for a resulting fee of
$650,000, which the Debtors are authorized to pay at the Closing.
17. This Court shall retain jurisdiction to determine any claims, disputes
or causes of action arising out of or relating to the Asset Purchase Agreement
or any of the transactions contemplated under the Asset Purchase Agreement.
Dated: 12/21, 2001 /s/ [Illegible]
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Wilmington, Delaware UNITED STATES DISTRICT JUDGE