Exhibit 10.63
UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
In re: :
: Jointly Administered
BORDEN CHEMICALS AND : Case No. 01-1268 (PJW)
PLASTICS OPERATING LIMITED :
PARTNERSHIP, a Delaware limited :
partnership, et al., :
: Chapter 11
Debtors. :
ORDER (A) APPROVING ASSET PURCHASE AGREEMENT;
(B) AUTHORIZING SALE OF THE PVC AND VCM/E PLANTS
AND RELATED GEISMAR 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. 911)
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 the PVC and VCM/E Plants and Related Geismar 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, as
amended (the "Agreement") dated August 1, 2002 by and among the Debtors and
Geismar Vinyls Corporation (the "Purchaser"), 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. Sections 157 and 1334; (b) this is a core proceeding pursuant to 28
U.S.C. Section 157(b)(2); (c) notice of the Sale
Motion and the Sale Hearing was sufficient under the circumstances; (d) the
Debtors' sale of the 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 Assets and the Debtors' assumption and assignment of the
Assumed Contracts is allowable under section 365 of the Bankruptcy Code, is
supported by sufficient assurance of the Purchaser'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 and the Purchaser have negotiated the Agreement at arms
length and have acted in "good faith" as defined by section 363(m) of the
Bankruptcy Code; (g) the Debtors have marketed the Assets and conducted the sale
process in compliance with the Bid Procedures Order (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.
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 Assets, on the terms
described in the Sale Motion and the Agreement, under sections 363(b) and (f) of
the Bankruptcy Code.
- ----------
/1/ Capitalized terms not defined herein have the meanings ascribed to them in
the Sale Motion or in the Agreement.
2
4. At Closing, the 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 Assets, 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. For purposes of the Order,
"Permitted Liens" means, to the extent valid and enforceable, (i) easements,
covenants, servitudes, rights-of-way and other restrictions set forth on Exhibit
A, (ii) other easements, covenants, servitudes, rights-of-way and encumbrances
or valid restrictions of record, (iii) Liens related to Taxes not yet due or
payable or which are being contested in good faith and for which appropriate
reserves have been taken, (iv) Liens or restrictions arising as a matter of Law,
and (v) Liens that are created, suffered or assumed by the Purchaser. Schedule
1.1 of the Agreement is hereby superceded in its entirety and deemed to have no
effect and shall be replaced in its entirety by Exhibit A to this Order.
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), with exception
of persons and entities holding Permitted Liens in the 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 Purchaser, its successors or
assigns, or against the Assets.
3
6. Notwithstanding any provision or language contained in this Order
or in the Agreement, Purchaser and Debtors hereby agree that the rights, assets,
easements, or servitudes as more specifically set forth on Exhibit B to this
Order, which is incorporated herein by reference, are not part of the Assets
being transferred pursuant to the Agreement.
7. Purchaser and Debtor hereby agree that the list of Assumed
Contracts set forth on Schedule 2.1(c) of the Agreement is hereby superceded in
its entirety by Exhibit C to this Order, which is incorporated herein by
reference and Exhibit C shall replace in its entirety Schedule 2.1(c) of the
Agreement.
8. With respect to the statement of claim filed by Pipeworks
Services, Inc. on May 31, 2001 (the "Asserted Lien"), the validity of which is
the subject of an adversary proceeding before this Court captioned as Adversary
Complaint for Determination of Extent, Validity and Enforcement of Lien, Adv.
Proc. No. 02-04015 (the "Adversary Proceeding"), the Debtors will place proceeds
from the sale of the Assets in the amount of $114,868.92 into an escrow account
(the "Escrowed Proceeds"). The Asserted Lien will attach to the Escrowed
Proceeds to the extent that the Asserted Lien is determined to be valid. The
Escrowed Proceeds that are determined not to be covered by the Asserted Lien
will be deposited in the Debtors' general account.
9. The Purchaser hereby is granted and shall have the protections
provided in section 363(m) of the Bankruptcy Code.
10. The Purchaser shall not be deemed to be a successor to or of the
Debtors as a result of the acquisition of the Assets pursuant to the terms of
the Agreement and this Order.
11. 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
4
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 Purchaser the names and any and all other
licenses or permits under the Debtors' ownership necessary for the operations
that are associated with the Assets.
12. This order shall be effective and enforceable immediately upon
entry. The stay otherwise imposed by Bankruptcy Rule 6004(g) is waived.
13. 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 Purchaser,
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.
14. 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.
15. Pursuant to Sections 105(a) and 365 of the Bankruptcy Code, and
subject to and conditioned upon the Closing, the Debtors' assumption of the
Purchase Order no. 439070 dated October 12, 2000 between BCP and EST Heat
Exchanger, LLC for purchase of an oxy reactor (the "Purchase Order") and
assignment of the Purchase Order to the Purchaser on the terms set forth in the
Agreement is hereby approved.
16. The Purchaser will (i) cure, or provide adequate assurance of
cure, of defaults under the Purchase Order, 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 the Purchase Order, within the meaning of section 365(b)(1)(B) of the
Bankruptcy Code.
5
17. The Purchaser and the Debtors agree to defer the adjudication of
the objections to the Sale Motion filed by Borden Chemicals, Inc., Entergy Gulf
States, Inc., Monochem, Inc., and Crompton Manufacturing Company, Inc. regarding
the assumption of the contracts listed on Exhibit C, with the exception of the
Purchase Order (the "Disputed Contracts"), to a hearing before this Court on
September 24, 2002, and the Disputed Contracts shall not be assumed and assigned
pursuant to this Order. With the exceptions of the objections set forth in the
preceeding sentence, all the remaining objections to the Sale Motion, filed by
Borden Chemicals, Inc., Entergy Gulf States, Inc., Monochem, Inc., and Crompton
Manufacturing Company, Inc. have been resolved. Upon the request of Purchaser,
prior to the entry of an order approving the assumption of a Disputed Contract,
the Debtors shall withdraw the motion to assume such Disputed Contract, and such
Disputed Contract shall be removed from Schedule 2.1(c) of the Agreement, and
such Disputed Contract shall not be assumed and assigned to Purchaser.
18. The Purchaser and the Debtors further agree that the Closing
shall not be conditional upon this Court's authorization of the assumption and
assignment of any of the Disputed Contracts by the Purchaser.
19. The Debtors and Purchaser agreed that Purchaser's obligation to
close the transactions contemplated by the Agreement is conditioned upon
resolution of certain environmental issues, as more particularly described in
Section 8.3 (g) of the Agreement. To the extent the Debtors resolve any
environmental issues related to the Assets, the Debtors shall seek such Court
approval.
6
20. The Debtors and the Purchaser are authorized and directed to take
the necessary actions to consummate the transactions contemplated by the
Agreement and this Order.
21. 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 Assets, to a fee in the
amount of $500,000.00, which the Debtors are authorized to pay at the Closing.
22. 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.
23. All objections to this Order have been resolved, deferred or
overruled.
Dated: August 21, 2002 /s/ Peter J. Walsh
Wilmington, Delaware ------------------------------
UNITED STATES BANKRUPTCY JUDGE
7
EXHIBIT A
SCHEDULE 1.1
PERMITTED LIENS
1. BCP right-of-way across Crompton for 7 pipelines. Rights-of-way for 2"
and 3" formaldehyde pipelines assigned to Borden Chemical, Inc.
Right-of-way for 8" acetylene pipeline assigned to BASF Corporation.
2. BCP right-of-way across Crompton for a 3" formaldehyde pipeline.
Assigned to Borden Chemical, Inc.
3. BCP and Borden Chemical, Inc. reciprocal rights-of-way and assignment
of rights-of-way.
4. BASF Corporation right-of-way across BCP for an 8" acetylene off gas
pipeline to BCP.
5. Gulf Liquids New River Project right-of-way across BCP for a 6"
pipeline and a 10" pipeline.
6. Louisiana Resources Company right-of-way across BCP for a natural gas
pipeline paralleling Hwy. 30 and a lateral to BCP.
7. That certain Easement in favor of Louisiana Intrastate Gas Corporation,
now known as Louisiana Intrastate Gas Company, LLC, recorded on May 13,
1981, in Book of Conveyance No. 335, File No. 182587, in Ascension
Parish, Louisiana.
8. Williams Energy Marketing and Trading right-of-way across BCP for an
ethylene pipeline paralleling Hwy. 30 and a pipeline lateral to BCP
paralleling 40th Street. Portion now crosses Borden Chemical, Inc.
9. Enterprise Pipeline Company right-of-way across BCP for 2 pipelines
paralleling Hwy. 30.
10. That certain Right-of-Way and Servitude Agreement in favor of Louisiana
Intrastate Gas Company LLC, recorded on May 7, 1999, in Book of
Conveyance No. 616, File No. 437013, in Ascension Parish, Louisiana.
11. Cypress Gas Pipeline right-of-way across BCP for a natural gas pipeline
lateral to BCP.
12. Pioneer Chlor Alkali Company right-of-way across BCP for a chlorine
pipeline. Portion now crosses Borden Chemical, Inc.
13. Pipeline Technology right-of-way across BCP for a nitric acid pipeline
paralleling 40th Street. Portion now crosses Borden Chemical, Inc.
14. ICPT LLC right-of-way across BCP for a benzene pipeline paralleling
40th Street. Portion now crosses Borden Chemical, Inc.
15. Air Liquide America Corporation right-of-way across BCP for a nitrogen
pipeline to BCP. Right-of-way is part of Nitrogen Sales Agreement.
16. Air Liquide America Corporation right of way across BCP for a nitrogen
pipeline paralleling the west side of 40th Street. Portion now crosses
Borden Chemicals, Inc. In
an Amendment, Air Liquide leases pipeline to Gabriel Chemicals, Inc.
for anhydrous hydrogen chloride. In addition, Easement dated November
20, 1990, assigned by Airco to ALAC (reference ALAC pipeline alignment
drawing005-DAL-1030, tract #AS001L206).
17. Equilon Pipeline Company LLC right-of-way across BCP for an ethylene
pipeline lateral to BCP.
18. Bridgeline Gas Distribution right-of-way across BCP for a natural gas
pipeline to BCP.
19. Gulf South Pipeline Co. right-of-way across BCP for a natural gas
pipeline to BCP.
20. Cypress Gas Pipeline right-of-way across BCP for a natural gas pipeline
paralleling Hwy. 30.
21. Entergy right-of-way across BCP paralleling west side of Hwy. 30.
22. Entergy right-of-way across BCP from Hwy. 30 to Main Substation.
23. State of Louisiana right-of-way across BCP for Hwy. 73.
24. EATEL rights-of-way across BCP paralleling south side of Hwy. 73.
Portion now crosses Borden Chemical, Inc.
25. EATEL rights-of-way across BCP paralleling west side of 40th Street.
Portion now crosses Borden Chemical, Inc.
26. Entergy rights-of-way into BCP from power lines paralleling south side
of Hwy. 73.
27. Exxon Pipeline Co. right-of-way across BCP for an ethylene pipeline
lateral to BCP. Portion now crosses Borden Chemical, Inc.
28. Entergy right-of-way across BCP paralleling south side of Hwy. 73.
Portion now crosses Borden Chemical, Inc.
29. To the extent it relates to the Assets, BCP, Borden Chemical, Inc.,
Monochem, Inc. and Crompton Manufacturing Co., Inc. for telephone lines
and conduits along 40th Street and for access to 40th Street.
2
EXHIBIT B
1. The office furniture, equipment (excluding all computer equipment (with
the exception of personal computers and printers) therein, a portion of
which remains property of Debtors and a portion of which are a part of
the Assets), and other personal property owned by BCP located in the
maintenance and administrative buildings adjacent to the Monochem
facilities.
2. All spare parts, tools, equipment, and other personal property owned by
BCP that are required to maintain the Monochem Facilities and the
electrical distribution system.
3. All electrical equipment and other personal property owned by BCP and
located in the Monochem substation or used in connection with Monochem,
Inc.
4. Air Liquide America Corporation's 50% interest in equipment known as
ASU No. 1.
5. Air Liquide America Corporation's 50% interest in equipment known as
ASU No. 2.
6. Air Liquide America Corporation's 10% interest in equipment known as
ASU No. 3.
7. Air Liquide America Corporation's 100% interest in equipment known as
ASU No. 4.
8. Easement dated July 22, 1997 for dual 12" pipelines in O2 and N2
service (pipeline alignment drawing 005-DAL-1020, tract #AS006).
9. 6 inch 02 pipeline - pipeline installed under product supply agreement
(reference ALAC pipeline drawing 005-DAL-1020, tract #AS009L3).
10. Easement dated November 20, 1990, assigned by Airco to ALAC (reference
ALAC pipeline alignment drawing 005-DAL-1030, tract #AS001L208).
11. That portion of premises owned by BCP and leased by BCP to LAI
Properties, Inc. ("LAI") under that certain Lease Agreement entered
into December 28, 1984 between Borden, Inc. and LAI, as amended by
Lease Amendment No. 1 dated October 2, 1985 and Lease Amendment No. 2
dated February 11, 1998.
EXHIBIT C
SCHEDULE 2.1(C)
ASSUMED CONTRACTS
1. Utilities and Services Agreement between BCP and BCI dated 7/28/2000
2. Interconnection and Operating Agreement between Entergy Gulf States,
Inc. and BCP dated 4/20/2001.
3. Agreement for Metering and Billing dated 12/1/2001 by Entergy Gulf
States, Inc. to Monochem, Inc., Borden Chemicals and Plastics Operating
Limited Partnership, Crompton Manufacturing Company, Inc., Rubicon,
Inc. and Borden Chemical, Inc.
4. Mutual Aid Agreement dated 10/31/2000 between BCI and BCP.
5. Purchase Order No. 439070 dated October 12, 2000 between BCP and EST
Heat Exchanger, LLC for purchase of an oxy reactor.