EXHIBIT 2.2
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
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IN RE : CHAPTER 11
: CASE NO. 02-14867 (ALG)
VIASYSTEMS GROUP, INC., ET AL. :
: (JOINTLY ADMINISTERED)
DEBTORS. :
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER (I) APPROVING
(A) SOLICITATION OF VOTES, VOTING PROCEDURES AND FORMS OF
BALLOTS, AND (B) DEBTORS' DISCLOSURE STATEMENT AND (II)
UNDER 11 U.S.C. SECTION 1129(a) AND (b) AND FED. R. BANKR. P.
3020, CONFIRMING DEBTORS' JOINT PLAN OF REORGANIZATION
WHEREAS, Viasystems Group, Inc. ("Group") together with
Viasystems, Inc. ("Viasystems") (together with Group, as debtors and debtors in
possession on behalf of these bankruptcy estates, the "Debtors"), as proponents
of the plan within the meaning of section 1129 of title 11, United States Code
(the "Bankruptcy Code"), filed (i) the Debtors' Prepackaged Joint Plan of
Reorganization of Viasystems Group, Inc. and Viasystems, Inc. under Chapter 11
of the Bankruptcy Code, dated August 30, 2002 (the "Plan"), and filed with this
Court on October 1, 2002, (as modified pursuant to the Debtors' Modification
(the "Modification") to Prepackaged Joint Plan of Reorganization of Viasystems
Group, Inc. and Viasystems, Inc. Under Chapter 11 of the Bankruptcy Code, dated
January 2, 2003 (as so modified, the "Plan"), (ii) the amended motion to approve
the Modification (the "Modification Motion"), and (iii) the Disclosure Statement
for Debtors' Joint Plan of Reorganization, dated August 30, 2002, and filed with
this Court on October 1, 2002 (the "Disclosure Statement");(1) and
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(1) Unless otherwise defined herein, capitalized terms shall have the meanings
ascribed to such terms in the Plan. Any term used in the Plan or this
Confirmation Order that is not defined in the Plan or this Confirmation Order,
but that is used in the Bankruptcy Code or the Federal Rules of Bankruptcy
Procedure (the "Bankruptcy Rules"), shall have the meaning ascribed to that term
in the Bankruptcy Code or the Bankruptcy Rules.
WHEREAS, on October 2, 2002, the Certification of Jane
Sullivan on behalf of Innisfree M&A Incorporated With Respect to the Tabulation
of Votes on the Joint Plan of Reorganization, pursuant to Bankruptcy Rule
3018(b), sworn to on October 1, 2002, (the "Voting Certification") was filed
with the Court; and
WHEREAS, the Debtors filed a motion, pursuant to sections
105(a), 1126(b), and 1128 of the Bankruptcy Code, Bankruptcy Rules 2002, 3017,
and 3018, and General Orders 201 and 203 of the Local Bankruptcy Rules,
requesting an order (the "Scheduling Order") (i) scheduling a combined hearing
to consider approval of the adequacy of the Disclosure Statement and
confirmation of the Plan; (ii) approving the form, manner and sufficiency of the
notice of such combined hearings; and (iii) approving the procedures used to
solicit the Plan (the "Approval Motion"); and
WHEREAS, on October 4, 2002, the Court having entered the
Scheduling Order, fixing November 21, 2002, at 10:30 a.m. as the date and time
of a combined hearing (the "Combined Hearing") to consider (i) the adequacy of
the Disclosure Statement, the voting procedures employed by the Debtors pursuant
thereto, and the forms of ballots used in connection therewith, pursuant to
sections 1125 and 1126(b) of the Bankruptcy Code and Bankruptcy Rules 3017 and
3018(b), and (ii) confirmation of the Plan, pursuant to sections 1128 and 1129
of the Bankruptcy Code, all as more fully set forth in the Scheduling Order; and
WHEREAS on or about November 12, 2002 that certain Civil
Action no. 20020 NC, styled Ray Agostino vs. Thomas O. Hicks, Jack D. Furst,
David M. Sindelar,
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Hicks Muse Tate & Furst Incorporated, filed in the Court of Chancery of the
State of Delaware in and for New Castle County (the "Agostino Claims") was
commenced;
WHEREAS on November 21, 2002 the Combined Hearing was
adjourned to January 7, 2003; and
WHEREAS, on January 2, 2003, the Debtors filed the
Modification and the Modification Motion for approval of the Modification; and
WHEREAS, affidavits of mailing of notices of the Combined
Hearing by Kathy Gerber, dated October 15, 2002, and Jane Sullivan, dated
November 19, 2002, were filed with the Court on November 19, 2002, and an
affidavit of publication of notice of the Combined Hearing by Pamela J. Garstka,
dated November 1, 2002, was filed with the Court on November 20, 2002
(collectively, the "Confirmation Affidavits"); and
WHEREAS, on January 2, 2003, the Debtors filed (i) the
Certification of David J. Webster in Support of (i) Approval of (a) Debtors'
Disclosure Statement, (b) Solicitation of Votes and Voting Procedure, (c) Forms
of Ballots, and (ii) Confirmation of Debtors' Joint Plan of Reorganization (the
"Webster Certification"); (ii) the Affidavit of Neil A. Augustine in Support of
Confirmation of Prepackaged Joint Plan of Reorganization of Viasystems Group,
Inc. and Viasystems, Inc. Under Chapter 11 of the Bankruptcy Code, (the
"Augustine Affidavit"); and (iii) a memorandum of law in support of confirmation
of the Plan (the "Confirmation Memorandum"); and
WHEREAS, the Combined Hearing having been held before the
Court on January 7, 2003; and the Court having considered the Approval Motion,
the Disclosure Statement, the Plan, the Webster Certification, and the papers in
support thereof, and one objection to the approval of the Disclosure Statement
and confirmation of the Plan having
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been interposed; and the appearances of all interested parties having been noted
in the record of the Combined Hearing; and the Court having considered all of
the evidence adduced or proffered and statements of counsel at the Combined
Hearing, and all of the proceedings had before this Court; and upon the
Disclosure Statement, the Plan, the papers filed in support of the Disclosure
Statement and the Plan, and upon the record of the Combined Hearing, the Court
having found and determined that the Plan should be confirmed as reflected by
this Court's rulings made herein and at the Combined Hearing; and after due
deliberation and sufficient cause appearing therefor, the Court hereby FINDS,
DETERMINES, AND CONCLUDES that:
INTRODUCTION
1. Findings and Conclusions. The findings and conclusions set
forth herein constitute the Court's findings of fact and conclusions of law
pursuant to Bankruptcy Rule 7052, made applicable to this proceeding pursuant to
Bankruptcy Rule 9014. To the extent any of the following findings of fact
constitute conclusions of law, they are adopted as such. To the extent any of
the following conclusions of law constitute findings of fact, they are adopted
as such.
2. Jurisdiction; Venue; Core Proceeding (28 U.S.C. Sections
157(b)(2), 1334(a)). This Court has jurisdiction over the Debtors' chapter 11
cases and to confirm the Plan pursuant to 28 U.S.C. Section 1334. Venue of these
chapter 11 cases is proper before the Court pursuant to 28 U.S.C. Sections 1408
and 1409. Approval of the Disclosure Statement and confirmation of the Plan are
core proceedings pursuant to 28 U.S.C. Section 157(b), and this Court has
jurisdiction to enter a final order with respect thereto.
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3. Judicial Notice. This Court takes judicial notice of the
docket of the Debtors' chapter 11 cases maintained by the Clerk of the Court
and/or its duly appointed agent, including, without limitation, all pleadings
and other documents filed, all orders entered, and evidence and argument made,
proffered, or adduced at the hearings held before the Bankruptcy Court during
the pendency of these chapter 11 cases.
4. Burden of Proof. The Debtors have the burden of proving the
elements of sections 1129(a) and (b) of the Bankruptcy Code by a preponderance
of evidence.
DISCLOSURE STATEMENT
5. Adequacy. The Disclosure Statement contains adequate
information within the meaning of section 1125 of the Bankruptcy Code.
VOTING
6. Manner As evidenced by the Voting Certification, votes to
accept or reject the Plan have been solicited and tabulated fairly, in good
faith, and in a manner consistent with the Bankruptcy Code, the Bankruptcy
Rules, and the Local Bankruptcy Rules for the Southern District of New York.
SOLICITATION AND NOTICE
7. Solicitation. The Plan, Disclosure Statement, and Ballots,
in support of the confirmation of the Plan and notice of the Combined Hearing
were transmitted and served in compliance with the Bankruptcy Rules. The forms
of the Ballots and Master Ballot were sufficiently consistent with Official Form
No. 14 and adequately addressed the particular needs of these Chapter 11 Cases
and were appropriate for each
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class of claims entitled under the Plan to vote to accept or reject the Plan.
The period during which the Debtors solicited acceptances to the Plan was a
reasonable period of time for holders of claims to make an informed decision to
accept or reject the Plan. The Debtors were not required to solicit votes from
the holders of Class 8, Existing Group Preferred Stock, and the deemed rejection
of the Plan by such class is approved. The votes on the Plan have been tabulated
in good faith and in a manner consistent with the Bankruptcy Code and the
Bankruptcy Rules. As described in, and as evidenced by, the Voting Certification
and the Confirmation Affidavits, the solicitation, transmittal, and service of
the Plan, the Disclosure Statement, notice of the Combined Hearing, and
publication of notice of the Combined Hearing each was adequate and sufficient.
8. Notice. All parties required to receive notice of the
Combined Hearing have received due, proper, timely, and adequate notice in
accordance with the Scheduling Order, the Bankruptcy Code, the Bankruptcy Rules,
and the Local Bankruptcy Rules, and they have had an opportunity to appear and
be heard with respect thereto. No other or further notice need be given.
THE PLAN MODIFICATION
9. The Plan Modifications (11 U.S.C. Section 1127). The
Debtors have modified the Plan as described in the Modification Motion. The
Modification constitutes technical changes, changes with respect to particular
Claims by agreement with holders of such Claims, or changes enhancing the
recoveries of certain classes of claims, and, therefore, do not materially or
adversely affect or change the treatment of any Claims or Equity Interests other
than those that consent thereto. Accordingly, pursuant to Bankruptcy Rule 3019,
these modifications do not require additional
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disclosure under section 1125 of the Bankruptcy Code or resolicitation of votes
under section 1126 of the Bankruptcy Code, nor do they require that holders of
Claims or Equity Interests be afforded an opportunity to change previously cast
acceptances or rejections of the Plan. The Plan as modified by the Modification
shall constitute the Plan.
CONFIRMATION OF THE PLAN
10. Plan Compliance with Bankruptcy Code (11 U.S.C. Section
1129(a)(l)). The Plan complies with the applicable provisions of the Bankruptcy
Code, thereby satisfying section 1129(a)(l) of the Bankruptcy Code.
(a) Proper Classification (11 U.S.C. Sections 1122,
1123(a)(1)). In addition to Administrative Expense Claims and Priority Tax
Claims, which need not be designated, the Plan designates ten Classes of Claims
and Equity Interests. The Claims and Equity Interests placed in each Class are
substantially similar to other Claims and Equity Interests, as the case may be,
in each such Class. Valid business, factual, and legal reasons exist for
separately classifying the various Classes of Claims and Equity Interests
created under the Plan, and such Classes do not unfairly discriminate between
holders of Claims and Equity Interests. The Plan satisfies sections 1122 and
1123(a)(1) of the Bankruptcy Code.
(b) Specified Unimpaired Classes (11 U.S.C. Section
1123(a)(2)). Article III.B of the Plan specifies that Classes 1A and 1B, Classes
3A and 3B, Classes 7A and 7B(2),
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(2) Pursuant to the modifications to the Plan, holders of claims in Classes 7A
and 7B are now impaired under the Plan. They have consented to the modification
and their impaired treatment.
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and Class 9B are unimpaired under the Plan, thereby satisfying section
1123(a)(2) of the Bankruptcy Code.
(c) Specified Treatment of Impaired Classes (11 U.S.C. Section
1123(a)(3)). Article III.B of the Plan designates Classes 2A and 2B, Class 4,
Classes 5A and 5B, Classes 6A and 6B, Class 8, Class 9A, and Class 10 as
impaired and specifies the treatment of Claims and Equity Interests in those
Classes, thereby satisfying section 1123(a)(3) of the Bankruptcy Code.
(d) No Discrimination (11 U.S.C. Section 1123(a)(4)). The Plan
provides for the same treatment by the Debtors for each Claim or Equity Interest
in each respective Class unless the holder of a particular Claim or Equity
Interest has agreed to a less favorable treatment of such Claim or Equity
Interest, thereby satisfying section 1123(a)(4) of the Bankruptcy Code.
(e) Implementation of Plan (11 U.S.C. Section 1123(a)(5)). The
Plan and the various documents and agreements set forth in the Plan Supplement
provide adequate and proper means for the Plan's implementation, including (i)
the authorization of new securities, (ii) the cancellation of extinguished
securities, (iii) the revesting of assets of each Debtor's Estate in the
Reorganized Debtors, and (iv) the Exit Financing Facility (as hereinafter
defined), thereby satisfying section 1123(a)(5) of the Bankruptcy Code.
(f) Non-Voting Equity Securities (11 U.S.C. Section
1123(a)(6)). Article VI.A of the Plan provides that the certificate of
incorporation and the bylaws of each Reorganized Debtor shall be amended as
necessary to prohibit the issuance of non-voting equity securities. Thus, the
requirements of section 1123(a)(6) of the Bankruptcy Code are satisfied.
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(g) Designation of Directors (11 U.S.C. Section 1123(a)(7)).
Article VI.C of the Plan contains provisions with respect to the manner of
selection of directors of the Reorganized Debtors that are consistent with the
interests of creditors, equity security holders, and public policy in accordance
with section 1123(a)(7).
(h) Additional Plan Provisions (11 U.S.C. Section 1123(b)).
The Plan's provisions are appropriate and consistent with the applicable
provisions of the Bankruptcy Code.
(i) Bankruptcy Rule 3016(a). The Plan is dated and identifies
the entities submitting it as proponents, thereby satisfying Bankruptcy Rule
3016(a).
11. Debtors' Compliance with Bankruptcy Code (11 U.S.C.
Section 1129(a)(2)). The Debtors have complied with the applicable provisions of
the Bankruptcy Code, thereby satisfying section 1129(a)(2) of the Bankruptcy
Code. Specifically:
a. The Debtors are proper debtors under section 109 of
the Bankruptcy Code.
b. The Debtors have complied with applicable provisions
of the Bankruptcy Code, except as otherwise provided
or permitted by orders of the Bankruptcy Court.
c. The Debtors have complied with the applicable
provisions of the Bankruptcy Code, the Bankruptcy
Rules, and the Scheduling Order in transmitting the
Plan, the Disclosure Statement, the Ballots, and
related documents and notices and in soliciting and
tabulating votes on the Plan.
12. Plan Proposed in Good Faith (11 U.S.C. Section
1129(a)(3)). The Debtors have proposed the Plan in good faith and not by any
means forbidden by law, thereby satisfying section 1129(a)(3) of the Bankruptcy
Code. The Debtors' good faith is evident from the facts and records of these
Reorganization Cases, the Disclosure
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Statement, and the record of the Combined Hearing and other proceedings held in
these Reorganization Cases. The Plan was proposed with the legitimate and honest
purpose of maximizing the value of the Debtors' estates and to effectuate a
successful reorganization of the Debtors. Further, the Plan's indemnification,
exculpation, release, and injunction provisions have been negotiated in good
faith, are consistent with sections 105, 1123(b)(6), 1129, and 1142 of the
Bankruptcy Code, and are each necessary to the Debtors' successful
reorganization.
13. Payments for Services or Costs and Expenses (11 U.S.C.
Section 1129(a)(4)). Any payment made or to be made by any of the Debtors for
services or for costs and expenses in or in connection with the Reorganization
Cases, or in connection with the Plan and incident to the Reorganization Cases,
has been approved by, or is subject to the approval of, the Bankruptcy Court as
reasonable, thereby satisfying section 1129(a)(4) of the Bankruptcy Code.
14. Directors, Officers, and Insiders (11 U.S.C. Section
1129(a)(5)). The Debtors have complied with section 1129(a)(5) of the Bankruptcy
Code. The identity and affiliations of the persons proposed to serve as initial
directors or officers of the Reorganized Debtors after confirmation of the Plan
have been fully disclosed in the Plan Supplement, and the appointment to, or
continuance in, such offices of such persons is consistent with the interests of
holders of Claims against and Equity Interests in the Debtors and with public
policy. The identity of any insider that will be employed or retained by the
Reorganized Debtors and the nature of such insider's compensation have also been
fully disclosed.
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15. No Rate Changes (11 U.S.C. Section 1129(a)(6)). After
confirmation of the Plan, the Debtors' businesses will not involve rates
established or approved by, or otherwise subject to, any governmental regulatory
commission. Thus, section 1129(a)(6) of the Bankruptcy Code is not applicable in
these Reorganization Cases.
16. Best Interests of Creditors (11 U.S.C. Section
1129(a)(7)). The Plan satisfies section 1129(a)(7) of the Bankruptcy Code. The
liquidation analysis provided in Exhibit "C" of the Disclosure Statement and
other evidence proffered or adduced at the Combined Hearing (a) are persuasive
and credible, (b) have not been controverted by other evidence, and (c)
establish that each holder of an impaired Claim or Equity Interest either has
accepted the Plan or will receive or retain under the Plan, on account of such
Claim or Equity Interest, property of a value, as of the Effective Date, that is
not less than the amount that such holder would receive or retain if the Debtors
were liquidated under chapter 7 of the Bankruptcy Code on such date.
17. Acceptance by Certain Classes (11 U.S.C. Section
1129(a)(8)). Classes 1A and 1B, Classes 3A and 3B, 7A and 7B(3), and 9B of the
Plan are Classes of unimpaired Claims that are conclusively presumed to have
accepted the Plan under section 1126(f) of the Bankruptcy Code. Classes 2A and
2B, 4, 5A and 5B, and 6A have voted to accept the Plan in accordance with
sections 1126(c) and (d) of the Bankruptcy Code. The one Class 6B creditor that
originally voted to reject the Plan has changed its vote to an acceptance of the
Plan as part of the resolution of a dispute as to the allowance of its
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(3) See footnote 2, supra.
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claim, which changed vote renders Class 6B an accepting class. Classes 9A and 10
are not entitled to receive or retain any property under the Plan and,
therefore, are deemed to have rejected the Plan pursuant to section 1126(g) of
the Bankruptcy Code. Class 8 is not entitled to receive or retain any property
under the Plan unless Class 6A votes to accept the Plan and, therefore, is
deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy
Code. Although section 1129(a)(8) would not be satisfied with respect to the
deemed rejecting Classes identified above, the Plan is confirmable because the
Plan satisfies section 1129(b) of the Bankruptcy Code with respect to the deemed
rejecting Classes identified above.
18. Treatment of Administrative and Tax Claims (11 U.S.C.
Section 1129(a)(9)). The treatment of Allowed Administrative Claims pursuant to
Article II.A. and Other Priority Claims pursuant to Articles III.C.1 and III.C.2
of the Plan satisfies the requirements of sections 1129(a)(9)(A) and (B) of the
Bankruptcy Code. In addition, the treatment of Priority Tax Claims pursuant to
Article II.B of the Plan satisfies the requirements of section 1129(a)(9)(C) of
the Bankruptcy Code.
19. Acceptance By Impaired Classes (11 U.S.C. Section
1129(a)(l0)). At least one Class of Claims against each of the Debtors that is
impaired under the Plan has accepted the Plan, determined without including any
acceptance of the Plan by any insider, thus satisfying the requirements of
section 1129(a)(10) of the Bankruptcy Code.
20. Feasibility (11 U.S.C. Section 1129(a)(11)). The evidence
proffered or adduced at the Combined Hearing (a) is persuasive and credible, (b)
has not been controverted by other evidence, and (c) establishes that
confirmation of the Plan is not likely to be followed by the liquidation or the
need for further financial reorganization
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of the Reorganized Debtors, thus satisfying the requirements of section
1129(a)(11) of the Bankruptcy Code.
21. Payment of Fees (11 U.S.C. Section 1129(a)(12)). All fees
payable under section 1930 of title 28, United States Code, as determined by the
Bankruptcy Court, have been or will be paid on or before the Effective Date
pursuant to Article XV.B of the Plan, thus satisfying the requirements of
section 1129(a)(12) of the Bankruptcy Code.
22. Continuation of Retiree Benefits (11 U.S.C. Section
1129(a)(13)). Article IX.E of the Plan provides that, on and after the Effective
Date, the Reorganized Debtors will continue to pay all "retiree benefits" (as
defined in section 1114(a) of the Bankruptcy Code), at the level established
pursuant to section 1114(e)(1)(B) or 1114(g) at any time prior to confirmation
of the Plan, for the duration of the period the Debtors have obligated
themselves to provide such benefits. Thus, the requirements of section
1129(a)(13) of the Bankruptcy Code are satisfied.
23. Fair and Equitable; No Unfair Discrimination (11 U.S.C.
Section 1129(b)). Class 6B originally voted to reject the Plan (and has since
agreed to change its vote), and Classes 8, 9A and 10 are deemed to have rejected
the Plan (Classes 8, 9A, and 10, collectively, the "Rejecting Classes"). Based
upon the Webster Certification, the Confirmation Memorandum, and the evidence
proffered, adduced, and presented by the Debtors at the Combined Hearing, the
Plan does not discriminate unfairly and is fair and equitable with respect to
the Rejecting Classes, as required by section 1129(b)(1) of the Bankruptcy Code,
because no holder of any interest that is junior to the interest of the
respective Rejecting Class will receive or retain under the Plan on account of
such
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junior interest any property. Thus, the Plan may be confirmed notwithstanding
the rejection or deemed rejection of the Plan by Classes 8, 9A, and 10.
24. Principal Purpose of the Plan (11 U.S.C. Section 1129(d)).
The principal purpose of the Plan is not the avoidance of taxes or the avoidance
of the application of Section 5 of the Securities Act of 1933.
25. Good Faith Solicitation (11 U.S.C. Section 1125(e)). Based
on the record before the Court in these Reorganization Cases, the Debtors, the
Senior Lenders, Hicks Muse, GSC, and the Noteholder Committee and their
respective directors, officers, employees, members, shareholders, agents,
advisors, accountants, investment bankers, consultants, attorneys, and other
representatives have acted in "good faith" within the meaning of section 1125(e)
of the Bankruptcy Code in compliance with the applicable provisions of the
Bankruptcy Code and Bankruptcy Rules in connection with all their respective
activities relating to the solicitation of acceptances to the Plan and their
participation in the activities described in section 1125 of the Bankruptcy
Code, and are entitled to the protections afforded by section 1125(e) of the
Bankruptcy Code and the exculpation provisions set forth in Article XV.S of the
Plan.
26. Assumption and Rejection. Article IX of the Plan governing
the assumption and rejection of executory contracts and unexpired leases
satisfies the requirements of section 365(b) of the Bankruptcy Code. Pursuant to
IX.A of the Plan, except as may otherwise be agreed to by the parties, each
Reorganized Debtor shall be deemed to have assumed each executory contract and
unexpired lease to which it is a party that was or is not (i) previously assumed
or rejected by the Debtors, (ii) previously expired or terminated pursuant to
its own terms, (iii) the subject of a motion
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to reject filed on or before the Confirmation Date or (iv) set forth in a
schedule, as an executory contract or unexpired lease to be rejected, filed as
part of the Plan Supplement.
27. Satisfaction of Confirmation Requirements. Based upon the
foregoing, the Plan satisfies the requirements for confirmation set forth in
section 1129 of the Bankruptcy Code.
28. Retention of Jurisdiction. The Court may properly retain
jurisdiction over the matters set forth in Article XIII of the Plan and section
1142 of the Bankruptcy Code.
DECREES
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED, DECREED AND
DETERMINED THAT:
29. Confirmation. The Plan is approved and confirmed under
section 1129 of the Bankruptcy Code. The terms of the Plan and the Plan
Supplement are incorporated by reference into and are an integral part of the
Plan and this Confirmation Order.
30. Plan Classification Controlling. The classifications of
Claims and Equity Interests for purposes of the distributions to be made under
the Plan shall be governed solely by the terms of the Plan. The classifications
set forth on the Ballots tendered to or returned by the Debtors' creditors in
connection with voting on the Plan (i) were set forth on the Ballots solely for
purposes of voting to accept or reject the Plan, (ii) do not necessarily
represent, and in no event shall be deemed to modify or otherwise affect, the
actual classification of such Claims and Equity Interests under the
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Plan for distribution purposes, and (iii) shall not be binding on the Debtors or
the Reorganized Debtors for purposes other than voting on the Plan.
31. Binding Effect. Pursuant to section 1141 of the Bankruptcy
Code, effective as of the Confirmation Date, the provisions of the Plan
(including the exhibits to, and all documents and agreements executed pursuant
to, the Plan) and this Confirmation Order shall be binding upon and inure to the
benefit of (i) the Debtors, (ii) the Reorganized Debtors, (iii) any entity
acquiring or receiving property or a distribution under the Plan, and (iv) any
present or former holder of a Claim against or Equity Interest in the Debtors
and their successors, assigns, and parties-in-interest, including all
governmental entities, whether or not the Claim or Equity Interest of such
holder is impaired under the Plan and whether or not such holder or entity has
accepted the Plan.
32. Vesting of Assets (11 U.S.C. Section 1141(b), (c)).
Pursuant to Article VI.I of the Plan, except as otherwise provided in the Plan,
the property of each Debtor's Estate, together with any property of each Debtor
that is not property of its Estate and that is not specifically disposed of
pursuant to this Plan, shall revest in the applicable Reorganized Debtor on the
Effective Date. Thereafter, the Reorganized Debtors may operate their businesses
and may use, acquire, and dispose of property free of any restrictions of the
Bankruptcy Code, the Bankruptcy Rules, and the Bankruptcy Court. As of the
Effective Date, all property of the Reorganized Debtors shall be free and clear
of all Claims, encumbrances, Equity Interests, charges and liens except as
specifically provided or contemplated by the Plan, the Exit Facility or this
Confirmation Order.
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33. Assumption or Rejection of Executory Contracts and
Unexpired Leases (11 U.S.C. Section 1123(b)(2)). Pursuant to Article IX of the
Plan, as of the Effective Date, each Reorganized Debtor shall be deemed to have
assumed each executory contract and unexpired lease to which it is a party,
unless such contract or lease (i) was previously assumed or rejected by the
Debtors, (ii) previously expired or terminated pursuant to its own terms, (iii)
is the subject of a motion to reject filed on or before the Confirmation Date or
(iv) is set forth in a schedule, as an executory contract or unexpired lease to
be rejected, filed as part of the Plan Supplement.
34. Bar Date for Rejection Damage Claims. Pursuant to Article
IX.D of the Plan, if the rejection of an executory contract or unexpired lease
by any of the Debtors pursuant to Article IX.A of the Plan results in damages to
the other party or parties to such contract or lease, a Claim for such damages
must be served upon the appropriate Debtors and their counsel within 30 days
after service on such parties of this Confirmation Order and notice of rejection
of such executory contracts or unexpired leases. Any claims not filed within
such times shall be forever barred from assertion against the respective
Debtors, their Estates, and their property.
35. General Authorizations. Each of the Debtors or Reorganized
Debtors is authorized pursuant to section 1142(b) of the Bankruptcy Code and
section 303 of Delaware General Corporate Law or other similar provisions in the
corporate laws of the Debtors' jurisdiction of incorporation to execute,
deliver, file, or record such contracts, instruments, releases, and other
agreements or documents and take such actions as may be necessary or appropriate
to effectuate, implement, and further evidence the terms and conditions of the
Plan and any notes or securities issued
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pursuant to the Plan. The Debtors and the Reorganized Debtors and their
respective directors, officers, agents, and attorneys, are authorized and
empowered to issue, execute, deliver, file, or record any agreement, document,
or security, including, without limitation, the documents contained in the Plan
Supplement, as modified, amended, and supplemented, in substantially the form
included therein, and to take any action necessary or appropriate to implement,
effectuate, and consummate the Plan in accordance with its terms, and or take
any or all corporate actions authorized to be taken pursuant to the Plan,
including, without limitation, any release, amendment, or restatement of any
bylaws, certificates of incorporation, or other organization documents of the
Debtors, whether or not specifically referred to in the Plan or the Plan
Supplement, without further order of the Court, and any or all such documents
shall be accepted by each of the respective state filing offices and recorded in
accordance with applicable state law and shall become effective in accordance
with their terms and the provisions of state law.
36. Corporate Action. Each Reorganized Debtor shall continue
to exist after the Effective Date as separate corporate entities in accordance
with the applicable law in the applicable jurisdiction in which they are
incorporated under their respective certificates of incorporation and bylaws in
effect before the Effective Date, except as they may be amended pursuant to the
Plan. Each Reorganized Debtor shall amend its certificate of incorporation and
bylaws on the Effective Date, as necessary, to satisfy the provisions of the
Plan and the Bankruptcy Code and shall include, pursuant to section 1123(a)(6)
of the Bankruptcy Code, a provision prohibiting the issuance of non-voting
equity securities. The amendments to the certificates of incorporation and
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bylaws shall be deemed adopted by the respective board of directors of each
Reorganized Debtor as of the Effective Date.
37. Issuance of New Securities. Pursuant to Article VI.D of
the Plan, based upon the record of the Debtors' chapter 11 cases, including the
instruments included in the Plan Supplement (and any amendments thereto), the
issuance of the New Securities by Reorganized Group is hereby authorized without
further act or action under applicable law, regulation, order, or rule.
38. Securities Laws Exemption. The offering, issuance, and
distribution by Reorganized Group of the New Securities is exempt from the
provisions of section 5 of the Securities Act of 1933, as amended, and any state
or local law requiring registration for the offer, issuance, distribution, or
sale of a security by reason of section 1145(a) of the Bankruptcy Code. The New
Securities will be freely tradable by the recipients thereof subject only to the
provisions of section 1145(b)(1) of the Bankruptcy Code relating to the
definition of an underwriter in Section 2(11) of the Securities Act of 1933, as
amended, and compliance with any applicable rules and regulations of the
Securities and Exchange Commission.
39. Authorization to Pay Obligations Under DIP Credit
Agreement. Notwithstanding anything that may be contained herein to the
contrary, the Debtors shall be, and hereby are, authorized and directed, on the
Effective Date, to pay or arrange for the payment of all amounts outstanding
under that certain Revolving Credit Agreement, dated as of October 1, 2002 (the
"DIP Credit Agreement") among Holdings, the DIP Borrower, JPMorgan Chase Bank
("JPMorgan Chase"), each of the other financial institutions from time to time
party thereto (together with JPMorgan
19
Chase, the "Lenders"), Deutsche Bank Trust Company Americas, as documentation
agent ("Deutsche Bank"), and JPMorgan Chase Bank, as Administrative Agent for
the DIP Lenders (in such capacity, the "DIP Agent"). Once such payments have
been made, the DIP Credit Agreement and any agreements or instruments related
thereto shall be deemed terminated, except as otherwise provided in the DIP
Credit Agreement (subject in all respects to the continuation of any carve-out
approved by the Bankruptcy Court in the Bankruptcy Court orders approving the
DIP Credit Agreement on a final basis), and the JPMorgan Chase Bank, as
Administrative Agent, and the lenders thereunder shall, following receipt of a
request from the Debtors and at the cost and expense of the Debtors, take all
reasonable and necessary action to confirm the removal of any liens on the
properties of the Debtors securing the DIP Credit Agreement. On the Effective
Date, any outstanding letters of credit issued under the DIP Credit Agreement
shall be either replaced or secured by letters of credit issued under the exit
facility described in Exhibit A to the Plan. The DIP Credit Agreement shall be
continued through the Effective Date.
40. Exit Financing Facility.
(a) The Debtors are authorized to enter into new financing
arrangements described in Exhibit A to the Plan (all arrangements, documents,
rates and agreements entered into or required in connection therewith,
collectively, the "Exit Facility") for purposes of funding obligations under the
Plan, including, among other things inter alia, the payment of Allowed
Administrative Claims (including the payment of professional fee claims in
accordance with Article XV.A.2 of the Plan), Priority Tax Claims, Other Priority
Claims, the repayment of obligations under the DIP Credit Agreement, and
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financing the Reorganized Debtors' working capital requirements. The Debtors are
authorized to pay, on the date of entry of this Order by the Court (i) to those
Senior Lenders who signed the Consent, dated as of December 20, 2002 to amend
the Lock Up Agreement (the "Consent"), a consent fee equal to 0.125% of such
Senior Lenders Bank Debt (as defined in the Lock Up Agreement) in the aggregate
amount of $577,106.74, and (ii) to JPMorgan Chase Bank as Agent a consent, work
and arrangement fee in connection with the Consent of $750,000.
(b) On the Effective Date, all the liens and security
interests to be created under the Exit Facility shall be deemed approved and
shall be legal valid and binding enforceable first priority liens, subject to
the limitations contained therein and the documents to be executed and delivered
pursuant thereto shall constitute the legal valid and binding obligations of the
Reorganized Debtors. In furtherance of the foregoing, the Reorganized Debtors
and the other persons granting such liens and security interests are authorized
to make all filings and recordings, and to obtain all governmental approvals and
consents necessary to establish and perfect such liens and security interests
under the provisions of state, provincial, federal, or other law (whether
domestic or foreign) that would be applicable in the absence of this
Confirmation Order, and will thereafter cooperate to make all other filings and
recordings that otherwise would be necessary under applicable law to give notice
of such liens and security interests to third parties.
41. Plan Supplement. The documents contained in the Plan
Supplement and any amendments, modifications, and supplements thereto, and all
documents and agreements introduced into evidence by the Debtors at the Combined
Hearing (including all exhibits and attachments thereto and documents referred
to therein), and
21
the execution, delivery, and performance thereof by the Reorganized Debtors, is
authorized and approved. Without need for further order or authorization of the
Bankruptcy Court, the Debtors and Reorganized Debtors are authorized and
empowered to make any and all modifications to any and all documents included as
part of the Plan Supplement that do not materially modify the terms of such
documents and are consistent with the Plan, provided that notice of any such
modifications shall be filed with the Court.
42. Governmental Approvals Not Required. This Confirmation
Order shall constitute all approvals and consents required, if any, by the laws,
rules, or regulations of any state or any other governmental authority with
respect to the implementation or consummation of the Plan and any documents,
instruments, or agreements, and any amendments or modifications thereto, and any
other acts referred to in or contemplated by the Plan, the Disclosure Statement,
and any documents, instruments, or agreements, and any amendments or
modifications thereto.
43. Exemption from Certain Taxes. Pursuant to section 1146(c)
of the Bankruptcy Code: (a) the issuance, transfer, or exchange of notes or
equity securities under the Plan; (b) the creation of any mortgage, deed of
trust, lien, pledge, or other security interest; and (c) the making or delivery
of any deed or other instrument of transfer under, in furtherance of, or in
connection with, the Plan; agreements of consolidation, restructuring,
disposition, liquidation, or dissolution; deeds; bills of sale; and transfers of
tangible property, will not be subject to any stamp tax, recording tax, personal
property transfer tax, real estate transfer tax, sales or use tax, or other
similar tax. All filing or recording officers, wherever located and by whomever
appointed, are
22
hereby directed to accept for filing or recording, and to file or record
immediately upon presentation thereof, all instruments or absolute or collateral
transfer without payment of any recording tax, stamp tax, or similar tax or
governmental assessment (other than standard filing fees) imposed by federal,
state, or local law. Notice of entry of this Confirmation Order in the form
approved by the Court (i) shall have the effect of an order of the Court, (ii)
shall constitute sufficient notice of the entry of this Confirmation Order to
such filing and recording officers, and (iii) shall be a recordable instrument
notwithstanding any contrary provision of nonbankruptcy law. The Court
specifically retains jurisdiction to enforce the foregoing direction, by
contempt or otherwise.
44. Distributions on Account of Group General Unsecured
Claims, Existing Group Preferred Stock, Viasystems Senior Note Claims and DTI
Guaranty Claims, Viasystems Subordinated Note Claims, and Viasystems General
Unsecured Claims. Pursuant to Article III.C of the Plan, on the later of (i) the
Effective Date, or (ii) the date on which each of the respective claims becomes
an Allowed Claim, or in each case, as soon as practicable thereafter, the
Disbursing Agent shall make the following distributions: (i) New Junior
Preferred Stock and New Common Stock, to the individual holders of the
Viasystems Senior Note Claims, in pro rata amounts as set forth in the Plan;
(ii) the treatment of the DTI Guaranty Claim specified in the Agreement between
the DTI, Group, and Viasystems, as set forth in Exhibit "D" to the Plan, (iii)
New Common Stock to the holders of Viasystems Subordinated Note Claims, in pro
rata amounts as set forth in the Plan; (iv) New Common Stock to holders of Group
General Unsecured Claims, in pro rata amounts as set forth in the Plan; (v) New
Subordinated Notes to holders of Viasystems General Unsecured Claims, in pro
rata
23
amounts as set forth in the Plan; and (vi) New Warrants to holders of Existing
Group Preferred Stock, in pro rata amounts as set forth in the Plan.
45. Rights Offering The Reorganized Debtors are authorized to
implement the Rights Offering in accordance with Article IV and Article VI.D. of
the Plan.
46. Hicks Muse Exchange The Hicks Muse Exchange as set forth
in Article V of the Plan is approved.
47. Waiver of Subordination. All Claims against and Equity
Interests in the Debtors and all rights and claims between or among holders of
Claims and Equity Interests relating in any manner whatsoever to Claims against
and Equity Interests in the Debtors, based upon any claimed subordination rights
(if any), shall be deemed fully satisfied by the distributions hereunder to
holders of Claims and Equity Interests having such subordination rights, and,
therefore, such subordination rights shall be deemed waived, released,
discharged, and terminated as of the Effective Date. Distributions to the
various Classes of Claims and Equity Interests hereunder shall not be subject to
levy, garnishment, attachment, or like legal process by any holder of a claim by
reason of any claimed subordination rights or otherwise, so that each holder of
a Claim or Equity Interest shall receive and retain the distributions in the
manner set forth in the Plan and the benefits thereof.
48. Administrative Claims Bar Date. Pursuant to Article XV.A.I
of the Plan, holders of asserted Administrative Claims (other than Professional
Fee Claims or Claims for United States Trustee Fees) not paid and not arising
out of transactions in the ordinary course of business prior to the Confirmation
Date must file proofs of
24
Administrative Claim and serve such claims on the Reorganized Debtors and their
counsel no later than sixty (60) days after notice of entry of this Confirmation
Order and this Administrative Claim Bar Date or be forever barred from doing so.
49. Final Fee Applications. Pursuant to Article XV.A.2 of the
Plan, all final requests for compensation or reimbursement of Professional Fee
Claims pursuant to sections 327, 328, 330, 331, 503(b), or 1103 of the
Bankruptcy Code for services rendered to the Debtors prior to the Effective Date
must be filed and served on the Reorganized Debtors and their counsel no later
than sixty (60) days after the Effective Date.
50. Discharge of Claims and Termination of Equity Interests.
Pursuant to Article XV.E of the Plan, all consideration distributed under the
Plan shall be in exchange for, and in complete satisfaction, settlement,
discharge, and release of, all Claims against and Equity Interests in the
Debtors of any nature whatsoever or against any of the Debtor's assets or
properties. Except as otherwise expressly provided in the Plan, entry of this
Confirmation Order (subject to the occurrence of the Effective Date) shall act
as a discharge of all Claims against and debts of, liens on, and Equity
Interests in each of the Debtors, the Debtors' assets, and their properties,
arising at any time before the entry of this Confirmation Order, regardless of
whether a proof of Claim or proof of Equity Interest therefor was filed, whether
the Claim or Equity Interest is Allowed, or whether the holder thereof votes to
accept this Plan or is entitled to receive a distribution thereunder, subject to
the occurrence of the Effective Date. Upon entry of this Confirmation Order, and
subject to the occurrence of the Effective Date, any holder of such discharged
Claim or Equity Interest shall be forever precluded from
25
asserting against the Debtors or any of their assets or properties any other or
further Claim or Equity Interest based upon any document, instrument, act,
omission, transaction, or other activity of any kind or nature that occurred
before the date of entry of the Confirmation Order, except as otherwise
expressly provided in the Plan. The Confirmation Order shall be a judicial
determination of discharge of all liabilities of the Debtors, subject to the
occurrence of the Effective Date.
51. Debtors' Releases. On the Effective Date, effective as of
the Confirmation Date, the Debtors shall release and be permanently enjoined
from any prosecution or attempted prosecution of any and all causes of action
which they have or may have against any present or former director, officer, or
employee of the Debtors; provided, however, that the foregoing shall not operate
as a waiver of or release from any causes of action arising out of (i) any
express contractual obligation owing by any such director, officer, or employee
of the Debtors or (ii) the willful misconduct or gross negligence of such
director, officer, or employee in connection with, related to, or arising out of
the Chapter 11 Cases, the pursuit of Confirmation hereof, the consummation
hereof, the administration hereof, or the property to be distributed hereunder.
All releases contained in Articles XV.F, XV.G and XV.H are approved and
effective upon the Effective Date. Specifically, and without limitation, the
Agostino Claims are property of the Debtors and shall be released on the
Effective Date under the terms of the Plan.
On the Effective Date, effective as of the Confirmation Date,
the Debtors shall release and be permanently enjoined from any prosecution or
attempted prosecution of any and all claims and causes of action, including any
claims or causes of action under
26
Chapter 5 of the Bankruptcy Code, which they have or may have against any member
of the Creditor Group and its respective members, officers, directors, agents,
financial advisors, attorneys, employees, equity holders, partners, affiliates
and representatives and their respective property in connection with (i) actions
taken as or in its capacity of being a member of the Creditor Group and (ii) the
Chapter 11 Cases.
52. Other Releases. On the Effective Date, effective as of the
Confirmation Date, and except as otherwise provided herein, the Debtors, the
Reorganized Debtors, each member or the Creditor Group, and the indenture
trustee, and each of their respective members, officers, directors, agents,
financial advisors, attorneys, employees, equity holders, partners, affiliates
and representatives and their respective property shall be released from any and
all claims, obligations, rights, causes of action, and liabilities which the
Debtors, Reorganized Debtors, or any holder of a Claim against or Equity
Interest in any Debtor may be entitled to assert derivatively on behalf of the
Debtors, whether for tort, fraud, contract, violations of federal or state
securities laws, or otherwise, whether known or unknown, foreseen or unforeseen,
existing or hereafter arising, based in whole or in part upon any act or
omission, transaction, or other occurrence taking place on or before the
Confirmation Date, in any way relating to the Chapter 11 Cases or this Plan, or
otherwise; provided, however, that nothing shall release any Person from any
claims, obligations, rights, causes of action, or liabilities based upon any act
or omission in connection with, relating to, or arising out of, the Chapter 11
Cases, the solicitation of acceptances hereof, the pursuit of Confirmation
hereof, the consummation hereof, the administration hereof, or the
27
property to be distributed hereunder arising out of such Person's gross
negligence or willful misconduct.
53. Exculpation and Limitation of Liability. The Reorganized
Debtors, the members of the Creditor Group, and any and all of their respective
present or former members, officers, directors, employees, equity holders,
partners, affiliates, advisors, attorneys, or agents, or any of their successors
or assigns, shall not have or incur any liability to any holder of a Claim or an
Equity Interest, or any other party-in-interest, or any of their respective
agents, employees, equity holders, partners, members, representatives, financial
advisors, attorneys, or affiliates, or any of their successors or assigns, for
any act or omission in connection with, relating to, or arising out of the
administration of the Chapter 11 Cases, the solicitation of acceptances hereof,
the pursuit of Confirmation hereof, the consummation hereof, or the
administration hereof or the property to be distributed hereunder, except for
their willful misconduct or gross negligence, and in all respects shall be
entitled to reasonably rely upon the advice of counsel with respect to their
duties and responsibilities hereunder.
Notwithstanding any other provision hereof, no holder of a
Claim or Equity Interest, no other party-in-interest, none of their respective
agents, employees, equity holders, partners, members, representatives, financial
advisors, attorneys, or affiliates, and no successors or assigns of the
foregoing, shall have any right of action against the Reorganized Debtors, the
Estates, any Committee, the members of the Creditor Group, any holder of
Eligible Claims, or any of their respective present or former members, officers,
directors, employees, equity holders, partners, or affiliates, or any of their
successors or assigns, for any act or omission in connection with, relating to,
28
or arising out of, the administration of the Chapter 11 Cases, the solicitation
of acceptances hereof, the pursuit of Confirmation hereof, the consummation
hereof, or the administration hereof or the property to be distributed
hereunder, except for their willful misconduct or gross negligence.
54. Claims of the United States. Notwithstanding anything
contained in this Order to the contrary, nothing in this Order or the Plan or
the transactions contemplated by and authorized pursuant to the Plan shall
release any non-debtor from any claims of the United States of America or its
agencies or subdivisions (the "United States"), or modify, alter, impair, or in
any way affect the claims and rights of the United States or the application of
any laws or regulations of the United States as to any Person or entity other
than the Debtors.
55. Injunction in Respect of the Discharge of Claims and
Termination of Equity Interests. Pursuant to Article XV.E of the Plan, and in
accordance with section 524 of the Bankruptcy Code, the discharge provided by
the Plan and section 1141 of the Bankruptcy Code shall act as an injunction
against the commencement or continuation of any action, employment of process,
or act to collect, offset, or recover the Claims and Equity Interest discharged
hereby. Except as otherwise expressly provided in this Plan or the Confirmation
Order, all Persons who have held, hold, or may hold a Claim against, or Equity
Interest in, the Debtors shall be permanently enjoined, on and after the
Effective Date, from (i) commencing or continuing in any manner any action or
other proceeding of any kind with respect to any such Claim or Equity Interests,
(ii) the enforcement, attachment, collection, or recovery by any manner or means
of any judgment, award, decree, or order against the Debtors on
29
account of any such Claim or Equity Interest, (iii) creating, perfecting, or
enforcing any encumbrance of any kind against the Debtors or against the
property or interests in property of the Debtors on account of any such Claim or
Equity Interest, and (iv) asserting any right of setoff, subrogation, or
recoupment of any kind against any obligation due from the Debtors or against
the property or interests in property of the Debtors on account of any such
Claim or Equity Interest. The foregoing injunction shall extend to successors of
the Debtors (including, without limitation, the Reorganized Debtors) and their
respective properties and interests in property.
56. Survival of Corporate Indemnitees. Pursuant to Article
XV.P of the Plan, except as otherwise specifically set forth in the Plan, any
obligations or rights of the Debtors or Reorganized Debtors to defend,
indemnify, reimburse, or limit the liability of the Debtors' present and former
directors, officers or employees (the "Covered Persons") pursuant to the
Debtors' or Reorganized Debtors' certificate of incorporation, bylaws, policy of
providing employee indemnification, applicable state law, or specific agreement
in respect of any claims, demands, suits, causes of action, or proceedings
against such Covered Persons based upon any act or omission related to such
Covered Persons' service with, for, or on behalf of the Debtors prior to the
Effective Date shall be deemed executory contracts assumed hereunder and shall,
in any event, survive Confirmation hereof and remain unaffected thereby, and
shall not be discharged, irrespective of whether such defense, indemnification,
reimbursement, or limitation of liability accrued or is owed in connection with
an occurrence before or after the Commencement Date.
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57. Termination of Injunctions and Automatic Stay. Pursuant to
Article XV.J of the Plan, all injunctions or stays arising under or entered
during the Reorganization Cases under sections 105 or 362 of the Bankruptcy Code
or otherwise, and in existence on the Confirmation Date, shall remain in full
force and effect until the Effective Date. All injunctions or stays contained in
the Plan or this Confirmation Order shall remain in full force and effect in
accordance with their terms.
58. Cancellation of Existing Securities and Agreements.
Pursuant to Article VII.C of the Plan, except for purposes of evidencing a right
to distributions under the Plan or otherwise provided in the Plan, on the
Effective Date, all agreements and other documents evidencing the Claims or
rights of any holder of a Claim against the Debtors, including all indentures
and notes evidencing such Claims and any options or warrants to purchase Equity
Interests, obligating the Debtors to issue, transfer, or sell Equity Interests
or any other capital stock of the Debtors, shall be cancelled.
59. Notice of Entry of Confirmation Order. On or before the
fifth (5th) Business Day following the date of entry of this Confirmation Order,
the Debtors shall serve notice of entry of this Confirmation Order pursuant to
Bankruptcy Rules 2002(f)(7), 2002(k), and 3020(c) on all creditors and interest
holders, the United States Trustee, and other parties in interest, by causing
notice of entry of the Confirmation Order (the "Notice of Confirmation"), to be
delivered to such parties by first-class mail, postage prepaid. The notice
described herein is adequate under the particular circumstances and no other or
further notice is necessary. The Debtors also shall cause the Notice of
Confirmation to be published as promptly as practicable after the entry of this
Confirmation Order once in The Wall Street Journal (National Edition).
31
60. Notice of Effective Date. The Reorganized Debtors shall
file notice of the occurrence of the Effective Date, and shall serve a copy of
same on the parties identified in the Master Service List as defined in the
Order Establishing Notice Procedures, dated October 10, 2002, as soon as
practicable after it has occurred.
61. Severability. Each term and provision of the Plan, as it
may have been altered or interpreted by the Bankruptcy Court in accordance with
Article XV.C of the Plan, is valid and enforceable pursuant to its terms.
62. Failure To Consummate Plan. In accordance with Article XVL
of the Plan, if the Effective Date does not occur, then (i) the Plan shall be
null and void in all respects, (ii) any settlement or compromise embodied in the
Plan (including the fixing or limiting to an amount certain any Claim or Class
of Claims), assumption or rejection of executory contracts or leases effected by
the Plan, and any document or agreement executed pursuant to the Plan shall be
deemed null and void, and (iii) nothing contained in the Plan, and no acts taken
in preparation for consummation of the Plan, shall (a) constitute or be deemed
to constitute a waiver or release of any Claims by or against, or any Interests
in, the Debtors or any other Person, (b) prejudice in any manner the rights of
the Debtors or any Person in any further proceedings involving the Debtors, or
(c) constitute an admission of any sort by the Debtors or any other Persons.
32
63. Conflicts Between Order and Plan. To the extent of any
inconsistency between the provisions of the Plan and this Confirmation Order,
the terms and conditions contained in this Confirmation Order shall govern. The
provisions of this Confirmation Order are integrated with each other and are
nonseverable and mutually dependent unless expressly stated by further order of
this Bankruptcy Court.
Dated: January 14, 2003
New York, New York
/s/ Allan L. Gropper
----------------------------
UNITED STATES BANKRUPTCY JUDGE
33