Exhibit 99.1
Order Confirming Third Amended Joint Plan of Reorganization under Chapter 11,
Title 11, United States Code of Amcast Industrial Corporation and its Affiliated
Debtor Entities
This document has been electronically entered in the records of the United
States Bankruptcy Court for the Southern District of Ohio.
IT IS SO ORDERED.
/s/ Lawrence S. Walter
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Dated: July 29, 2005 Lawrence S. Walter
United States Bankruptcy Judge
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IN THE UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
In Re: : Chapter 11
:
AMCAST INDUSTRIAL CORPORATION, et al., : Case No. 04-40504
: (Jointly Administered)
Debtors and Debtors in Possession. :
: Judge Walter
ORDER CONFIRMING THIRD AMENDED JOINTPLAN OF REORGANIZATION UNDER CHAPTER
11, TITLE 11, UNITED STATES CODE OF AMCAST INDUSTRIAL CORPORATION AND ITS
AFFILIATED DEBTOR ENTITIES
A HEARING HAVING BEEN HELD BEFORE THE COURT on July 28, 2005 (the
"Confirmation Hearing"), to consider confirmation of the Third Amended Joint
Plan of Reorganization under Chapter 11, Title 11, United States Code of Amcast
Industrial Corporation and its affiliated debtor entities, dated as of July 27,
2005 (the "Plan"),(1) proposed by Amcast
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(1) Capitalized terms used herein without definition have the meanings provided
for in the Plan.
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Industrial Corporation and its affiliated debtors in the above-captioned jointly
administered cases (the "Debtors" (2) or the "Reorganized Debtors," depending on
the context);
IT APPEARING TO THE COURT that, the Plan is supported by the Debtors'
official committee of the unsecured creditors appointed in these Chapter 11
cases (the "Creditors' Committee") and by the Prepetition Secured Lenders;
IT FURTHER APPEARING TO THE COURT that, the First Amended Disclosure
Statement with Respect to Second Amended Joint Plan of Reorganization under
Chapter 11, Title 11, United States Code of Amcast Industrial Corporation and
its Affiliated Debtor Entities, dated June 15, 2005 (the "Disclosure
Statement"), has been approved pursuant to the Court's order dated June 16,
2005;
IT FURTHER APPEARING TO THE COURT that, solicitation, noticing procedures
and other deadlines with respect to the Plan have been set by the Court,
pursuant to the Order Setting Hearing on Confirmation of Plan and Fixing Time
for Filing Acceptance or Rejections of Plan (Doc. # 722) (the "Solicitation
Procedures Order");
IT FURTHER APPEARING TO THE COURT that, the Debtors have filed with the
Court a plan supplement pursuant to Section 12.16 of the Plan (the "Plan
Supplement"), containing the draft forms of certain documents necessary to
implement the Plan, including (1) the Form of Articles of Incorporation and Code
of Regulations of Reorganized Amcast and new organizational chart for the
reorganized entities, (2) the Form of New Shareholders' Agreement which includes
the terms of the New Amcast Common Stock, (3) the Form of the
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(2) The Debtors are Amcast Industrial Corporation, Amcast Automotive of Indiana,
Inc., Speedline North America, Inc., Amcast Casting Technologies, Inc., Izumi,
Inc., Casting Technology Company, Amcast Automotive, Inc., Amcast Plumbing, Inc.
fka Elkhart Products Corporation, LBC Group Corp., Lee Brass Company, Amcast
Industrial Financial Services, Inc., Amcast Investment Services Corporation,
Amcast Aviation Corporation, Amcast Precision Products, Inc., Flagg Brass
Industrial, L.L.C. and AS International, Inc
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Exit Facility Agreement, (4) the Form of Creditor Trust Agreement, (5) the
Designation of the Initial Board of Directors of Reorganized Amcast, and (6) the
Schedule of Executory Contracts to be assumed by the Debtors pursuant to the
Plan with Proposed Cure Payments, as amended (the "Assumed Contracts List");
IT FURTHER APPEARING TO THE COURT that, the deadline for filing objections to
the Plan was July 18, 2005 and that the only timely objections to confirmation
of the Plan were filed by the following parties:
1. Objection of the United States Trustee (Doc. # 804)
2. Objection of the State of Ohio, Environmental Protection Agency (Doc. #822)
3. Objection of the National Labor Relations Board (Doc. #841)
4. Objection of the Wayne County Treasurer (Doc. #843)
5. Objection of the Ohio Department of Taxation (Doc. #846)
6. Objection of Valleycrest Landfill Group (Doc. #847)
7. Objection of U.S. Department of Justice Environment & Natural Resources
Division (Doc. # 898)
On July 27, 2005, Aalberts Industries U.S. Holding Corp. and certain of its
affiliates ("Aalberts") filed an objection to the Plan after the objection
deadline had passed.
IT FURTHER APPEARING TO THE COURT that, the deadline for casting ballots to
accept or reject the Plan was July 18, 2005 and that JP Morgan Trust Company,
National Association acting as voting agent (the "Voting Agent") for the Debtors
has filed herein the Declaration of Nathan Weil III Certifying Voting on and
Tabulation of Ballots Accepting or Rejecting the Second Amended Joint Plan of
Reorganization under Chapter 11, Title 11, United
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States Code of Amcast Industrial Corporation and its Affiliated Debtor Entities
(the "Weil Voting Declaration");
IT FURTHER APPEARING TO THE COURT that, the Debtors have presented
testimony and evidence in support of confirmation of the Plan, including the
respective Declarations in support of the Plan of Richard A. Smith, vice
president and chief financial officer of the Debtors (the "Smith Declaration")
and Jeffrey J. Lewis, financial adviser to the Debtors (the "Lewis
Declaration"), and that argument of counsel has been presented by other parties
in interest;
NOW, THEREFORE, based upon the Court's review of (a) the Disclosure
Statement, (b) the Plan and Plan Supplement, (c) the unresolved objections to
confirmation of the Plan, (d) all of the evidence proffered or adduced, and
statements of counsel made at the Confirmation Hearing, and (e) the entire
record of these Chapter 11 cases; and after due deliberation thereon and good
cause appearing therefor, and for the reasons set forth on the record at the
Confirmation Hearing,
IT IS HEREBY FOUND AND DETERMINED THAT:(3)
A JURISDICTION; VENUE; CORE PROCEEDING. The Court has jurisdiction over
the Debtors' Chapter 11 cases pursuant to 28 U.S.C. Sections 157 and 1334. Venue
is proper pursuant to 28 U.S.C. Sections 1408 and 1409. Confirmation of the Plan
is a core proceeding pursuant to 28 U.S.C. Section 157(b)(2)(L) over which the
Court has exclusive jurisdiction.
B JUDICIAL NOTICE. The Court takes judicial notice of the docket of the
Debtors' Chapter 11 cases maintained by the Clerk of the Court, including,
without limitation, all pleadings and other documents filed with, all orders
entered by, and evidence and argument
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(3) Pursuant to Fed. R. Bankr. P. 7052, findings of fact shall be construed as
conclusions of law and conclusions of law shall be construed as findings of fact
when appropriate.
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made, proffered or adduced at the hearings held before the Court during the
pendency of the Chapter 11 cases.
C TRANSMITTAL AND MAILING OF SOLICITATION MATERIALS AND NOTICES. The
solicitation materials and notices were served in compliance with the
Solicitation Procedures Order, and such service was adequate and sufficient.
Adequate and sufficient notice of the Confirmation Hearing and the other
deadlines and matters required to be noticed pursuant to and prescribed by the
Solicitation Procedures Order was given in compliance with the Bankruptcy Code,
Bankruptcy Rules and orders of this Court, and no other or further notice is or
shall be required.
D ADEQUACY OF SOLICITATION PROCEDURES. All procedures used to distribute
the solicitation materials to the appropriate creditors entitled to vote on the
Plan and to tabulate the ballots returned by creditors were fair and were
conducted in accordance with the applicable provisions of the Bankruptcy Code,
the Bankruptcy Rules and the Solicitation Procedures Order. Votes for acceptance
or rejection of the Plan were solicited and cast in good faith and in compliance
with 11 U.S.C. Sections 1125 and 1126 and Fed. R. Bankr. P. 3017 and 3018.
E GOOD FAITH SOLICITATION (11 U.S.C. Section 1125(e)). Based on thE record
before the Court in these Chapter 11 cases, the Debtors, the Prepetition Secured
Lenders and the Creditors' Committee, and each of their respective directors,
officers, employees, members, agents, advisors, accountants, financial advisors,
consultants, attorneys, and other representatives, have acted in good faith
within the meaning of 11 U.S.C. Section 1125(e) and in compliance with the
applicable provisions of the Bankruptcy Code, the Bankruptcy Rules, the
Solicitation Procedures Order and other orders of the Court as applicable, in
connection with all of their respective activities relating to the solicitation
of acceptances of the Plan and their participation in the
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activities described in 11 U.S.C. Section 1125. Such parties are thereby
entitled to the protections afforded by 11 U.S.C. Section 1125(e) and, to the
extent applicable, the exculpation and injunctive provisions set forth in
Section 12.12 of the Plan.
F IMPAIRED CLASSES THAT HAVE VOTED TO ACCEPT OR REJECT THE PLAN. As
evidenced by the Weil Voting Declaration, which certifies both the method and
results of the voting, Classes 2, 3(i), 4 and 5 are each impaired and have voted
to accept the Plan pursuant to the requirements of 11 U.S.C. Sections 1124 and
1126. Thus, at least one impaired Class of Claims has voted to accept the Plan.
Class 3 has voted to reject the Plan.
G CLASSES DEEMED TO HAVE ACCEPTED OR REJECTED THE PLAN. Classes 1 and 9
are not impaired under the Plan and are deemed to have accepted the Plan
pursuant to 11 U.S.C. Section 1126(f). Classes 6, 7 and 8 will receive no
distribution under the Plan and are deemed to have rejected the Plan pursuant to
11 U.S.C. Section 1126(g).
H DEBTOR RELEASES, VOLUNTARY CREDITOR RELEASES AND EXCULPATIONS. The
releases proposed to be made by the Debtors pursuant to Section 12.9(a) of the
Plan are appropriate and should be approved. The Creditors' Committee has
undertaken a comprehensive investigation of potential claims that the Debtors
might be able to assert against the proposed released parties and based upon
that investigation, certain claims identified by the Creditors' Committee as
warranting possible action have been carved out from the release provisions in
section 12.9(a) and assigned to the Creditor Trust. There is an identity of
interests between the Debtors and certain of the proposed released parties; the
proposed released parties have made a substantial contribution to the Debtors'
reorganization; the releases are necessary to the effectuation of the
compromises and settlements embodied in the Plan and to the success of the
Debtors' rehabilitation under the Plan; the Plan has been accepted by
substantial majorities in all but one
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of the voting classes; and the compromises and settlements contained in the Plan
upon which certain of the releases are premised will allow for distributions to
creditors not otherwise available.
The voluntary creditor releases provided for in Section 12.9(b) of the
Plan are appropriate and should be approved. Such releases were fully disclosed
in the Plan, were set forth on the ballots provided to parties entitled to vote
on the Plan, and are consensual agreements by creditors who voted to accept the
Plan. The exculpation provisions in Section 12.12 of the Plan are appropriate
and should be approved.
I PLAN COMPLIANCE WITH BANKRUPTCY CODE (11 U.S.C. Section 1129(a)(1)). The
Plan complies with the applicable provisions of the Bankruptcy Code, thereby
satisfying 11 U.S.C.Section 1129(a)(1).
1. PROPER CLASSIFICATION (11 U.S.C. Sections 1122, 1123(a)(1)). In
addition to Administrative Claims and Priority Tax Claims, which need not be
classified, the Plan designates nine classes of claims and interests. The claims
and interests placed in each class are substantially similar to other claims and
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
interests created under the Plan, and such classification does not unfairly
discriminate among holders of claims and interests. Thus, the Plan satisfies 11
U.S.C. Sections 1122 and 1123(a)(1).
2. SPECIFY UNIMPAIRED CLASSES (11 U.S.C. Section 1123(a)(2)). Sections
3.2, 3.5, and 4.2 of the Plan specify that Classes 1 and 9 are unimpaired under
the Plan, thereby satisfying 11 U.S.C. Section 1123(a)(2).
3. SPECIFY TREATMENT OF IMPAIRED CLASSES (11 U.S.C. Section 1123(a)(3)).
Sections 3.3, and 3.4 of the Plan designate Classes 2, 3, 4, 5, 6, 7, and 8 as
impaired and Sections 4.3 and 4.4
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specify the treatment of claims and interests in those classes, thereby
satisfying 11 U.S.C. Section 1123(a)(3).
4. NO DISCRIMINATION (11 U.S.C. Section 1123(a)(4)). The Plan provides for
the same treatment by the Debtors for each claim or interest in each respective
class unless the holder of a particular claim or interest has agreed to a less
favorable treatment of such claim or interest, thereby satisfying 11 U.S.C.
Section 1123(a)(4).
5. IMPLEMENTATION OF PLAN (11 U.S.C. Section 1123(a)(5)). The PlaN
provides adequate and proper means for its implementation, thereby satisfying 11
U.S.C. Section 1123(a)(5).
6. NONVOTING EQUITY SECURITIES (11 U.S.C. Section 1123(a)(6)). Section 6.2
of the Plan provides that the Articles of Incorporation and/or Operating
Agreement, and/or Code of Regulations of the Debtors shall be amended to provide
for the inclusion of provisions prohibiting the issuance of nonvoting equity
securities, subject to further amendment of such corporate organizational
documents as permitted by applicable law. Thus, the requirements of 11 U.S.C.
Section 1123(a)(6) are satisfied.
7. SELECTION OF OFFICERS AND DIRECTORS (11 U.S.C. Section 1123(a)(7)). In
the Plan Supplement and Smith Declaration, the Debtors properly and adequately
disclosed the identity and affiliations of all individuals or entities proposed
to serve on or after the Effective Date as officers or directors of the
Reorganized Debtors and the manner of selection and appointment of such
individuals or entities is consistent with the interests of holders of claims
and interests and with public policy and, accordingly, satisfies the
requirements of 11 U.S.C. Section 1123(a)(7).
8. ADDITIONAL PLAN PROVISIONS (11 U.S.C. Section 1123(b)). The Plan'S
additional provisions are appropriate and consistent with the applicable
provisions of the Bankruptcy Code.
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J COMPLIANCE WITH FED. R. BANKR. P. 3017. The Debtors have given notice of
the Confirmation Hearing as required by Fed. R. Bankr. P. 3017(d) and the
Solicitation Procedures Order. The solicitation materials prescribed by the
Solicitation Procedures Order were transmitted to the creditors entitled to vote
on the Plan in accordance with Fed. R. Bankr. P. 3017(d).
K COMPLIANCE WITH FED. R. BANKR. P. 3018. The solicitation of votes to
accept or reject the Plan satisfies Fed. R. Bankr. P. 3018. The Plan was
transmitted to all creditors entitled to vote on the Plan, sufficient time was
prescribed for such creditors to accept or reject the Plan, and the solicitation
materials used and solicitation procedures followed comply with 11 U.S.C.
Section 1126, thereby satisfying the requirements of Fed. R. Bankr. P. 3018.
L 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 11 U.S.C. Section 1129(a)(2).
M 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 11 U.S.C. Section 1129(a)(3). In determining that the Plan
has been proposed in good faith, the Court has examined the totality of the
circumstances surrounding the formulation of the Plan. The Debtors filed their
Chapter 11 cases and proposed the Plan with legitimate and honest purposes
including, among other things, (i) the reorganization of the Debtors'
businesses, (ii) the preservation and maximization of the Debtors' business
enterprise values through a reorganization under Chapter 11, (iii) restructuring
of the Debtors' capital structure, (iv) maximization of the recovery to
creditors under the circumstances of these cases, and
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(v) preserving jobs of the Debtors' employees in connection with the Debtors'
continuing operations.
N PAYMENTS FOR SERVICES OR COSTS AND EXPENSES (11 U.S.C. Section
1129(a)(4)). All payments made or to be made by the Debtors or by a person
issuing securities or acquiring property under the Plan, for services or for
costs and expenses in connection with the Chapter 11 cases, or in connection
with the Plan and incident to the Chapter 11 cases, have been approved by, or
are subject to the approval of, the Court as reasonable, thereby satisfying 11
U.S.C. Section 1129(a)(4).
O DIRECTORS, OFFICERS AND INSIDERS (11 U.S.C. Section 1129(a)(5)). The
Debtors have complied with 11 U.S.C. Section 1129(a)(5). The identity and
affiliations of the persons that will serve as initial directors or officers of
the Reorganized Debtors after confirmation of the Plan have been fully disclosed
in the Smith Declaration and the Plan Supplement. The appointment to, or
continuance in, such offices of such persons is consistent with the interests of
holders of claims against and 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, to the extent applicable.
P NO RATE CHANGES (11 U.S.C. Section 1129(a)(6)). There is no regulatory
commission having jurisdiction after confirmation of the Plan over the rates of
the Debtors and no rate change provided for in the Plan requiring approval of
any such commission. Therefore, 11 U.S.C. Section 1129(a)(6) is not applicable.
Q BEST INTERESTS OF CREDITORS (11 U.S.C. Section 1129(a)(7)). The PlaN
satisfies 11 U.S.C. Section 1129(a)(7). ThE liquidation analysis attached as
Appendix E to the Disclosure Statement and other evidence proffered or adduced
at the Confirmation Hearing, (i) are
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persuasive and credible, (ii) have not been controverted by other evidence, and
(iii) establish that each holder of an impaired claim or interest either has
accepted the Plan or will receive or retain under the Plan, on account of such
claim or 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.
R DEEMED ACCEPTANCE OR REJECTION BY CERTAIN CLASSES (11 U.S.C.Section
1129(a)(8)). Classes 1 and 9 are classes of unimpaired claims and interests that
are conclusively presumed to have accepted the Plan under 11 U.S.C. Section
1126(f). Classes 2, 3(i), 4 and 5 have voted to accept the Plan in accordance
with 11 U.S.C. Section 1126(c). Class 3 has voted to reject the Plan pursuant to
11 U.S.C. Section 1126(c). Classes 6, 7, and 8 are not entitled to receive or
retain any property under the Plan and, therefore, are deemed to have rejected
the Plan pursuant to 11 U.S.C. Section 1126(g). Although 11 U.S.C. Section
1129(a)(8) has not been satisfied with respect to Classes 3, 6, 7, and 8, the
Plan is confirmable because the Plan satisfies 11 U.S.C. Section 1129(b) with
respect to those classes of claims and interests, as set forth in Paragraph X
below.
S TREATMENT OF ADMINISTRATIVE, PRIORITY AND TAX CLAIMS (11 U.S.C. Section
1129(a)(9)). The treatment of Administrative Claims, Priority Tax Claims and
Other Priority Claims pursuant to Sections 4.1(a), 4.1(b) and 4.2(a) of the Plan
satisfies the requirements of 11 U.S.C. Sections 1129(a)(9)(A), (B) and (C).
T ACCEPTANCE BY IMPAIRED CLASS (11 U.S.C. Section 1129(a)(10)). Classes 2,
3(i), 4 and 5 are impaired classes of claims that voted to accept the Plan, and,
to the Debtors' knowledge, do not contain insiders whose votes have been
counted. Therefore, the requirement of 11 U.S.C. Section 1129(a)(10) that at
least one class of claims against or interests in the Debtors that is impaired
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under the Plan has accepted the Plan, determined without including any
acceptance of the Plan by any insider, has been satisfied.
U FEASIBILITY (11 U.S.C. Section 1129(a)(11)). The revised projections
(the "Revised Projections") attached to the Lewis Declaration and other evidence
proffered or adduced by the Debtors at the Confirmation Hearing with respect to
feasibility, (i) are persuasive and credible, (ii) have not been controverted by
other evidence or challenged in any objection, and (iii) establish that
confirmation of the Plan is not likely to be followed by the liquidation, or the
need for further financial reorganization, of the Reorganized Debtors, thus
satisfying the requirements of 11 U.S.C. Section 1129(a)(11).
V PAYMENT OF FEES (11 U. S. C. Section 1129(a)(12)). All fees payable
under 28 U.S.C. Section 1930 on or before the Effective Date, as determined by
the Court, have been paid or will be paid on the Effective Date pursuant to
Section 12.3 of the Plan, thus satisfying the requirements of 11 U.S.C. Section
1129(a)(12).
W CONTINUATION OF RETIREE BENEFITS (11 U.S.C. Section 1129(a)(13)). The
Debtors maintain one plan in which they are obligated to pay retiree benefits
(as defined in section 1114(a) of the Bankruptcy Code). The Debtors intend to
continue providing retiree benefits in accordance with the terms of the retiree
benefit plan or other agreements governing the payment of such benefits, subject
to any rights to amend, modify or terminate such benefits under the terms of the
applicable retiree benefits plan, or other agreement or applicable nonbankruptcy
law. Thus, the requirements of 11 U.S.C. Section 1129(a)(13) are satisfied.
X FAIR AND EQUITABLE, NO UNFAIR DISCRIMINATION (11 U.S.C. Section
1129(b)). Class 3 is an impaired class of claims that has rejected the Plan
pursuant to 11 U.S.C. Section 1126(c) and Classes 6, 7, and 8 are impaired
classes of claims and interests that are deemed to have rejected
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the Plan pursuant to 11 U.S.C. Section 1126(g). The Plan does not discriminate
unfairly and is fair and equitable with respect to Classes 3, 6, 7, and 8 as
required by 11 U.S.C. Section 1129(b)(1). Thus, the Plan may be confirmed
notwithstanding the Debtors' failure to satisfy 11 U.S.C. Section 1129(a)(8).
Upon confirmation and the occurrence of the Effective Date, the Plan shall be
binding upon the members of Classes 3, 6, 7, and 8.
Y PRINCIPAL PURPOSE (11 U.S.C. Section 1129(d)). The principal purpose of
the Plan is neither the avoidance of taxes nor the avoidance of Section 5 of the
Securities Act of 1933, and no governmental unit has objected to the
confirmation of the Plan on any such grounds. The Plan therefore satisfies the
requirements of 11 U.S.C. Section 1129(d).
Z NO LIQUIDATION. Because the Plan does not provide for the liquidation of
all or substantially all of the property of the Debtors' estates and the
Reorganized Debtors will engage in businesses following consummation of the
Plan, 11 U.S.C. Section 1141(d)(3) is not applicable.
AA BURDEN OF PROOF. The Debtors, as proponents of the Plan, have met their
burden of proving the elements of 11 U.S.C. Sections 1129(a) and (b) by a
preponderance of the evidence.
BB EXIT FACILITY. The Debtors have demonstrated that they have exercised
reasonable business judgment in determining to enter into the Exit Facility on
the terms and in the form set forth in the Plan Supplement, or in a form
substantially similar thereto. The terms and conditions of the Exit Facility are
fair and reasonable and the consummation of the Exit Facility is in the best
interests of the Debtors' estates and creditors. The Exit Facility is an
essential element of the Plan and the Debtors' entry into the Exit Facility is
necessary for the implementation of the Plan.
CC SATISFACTION OF CONFIRMATION REQUIREMENTS. The Plan satisfies the
requirements for confirmation set forth in 11 U.S.C. Section 1129. The Debtors
have represented to
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the Court that the conditions precedent to confirmation set forth in Section
10.1 of the Plan have either been satisfied or waived.
BASED ON THE FOREGOING FINDINGS, IT IS HEREBY ORDERED, ADJUDGED AND
DECREED THAT;
(i) OBJECTIONS. The objections of the National Labor Relations Board (Doc.
#841), Valleycrest Landfill Group (Doc. #847) and the U.S. Department of Justice
Environment & Natural Resources Division (Doc. # 898) have been withdrawn. The
objection of the United States Trustee (Doc. # 804) is hereby overruled. With
respect to the objection of the Wayne County Treasurer ("Wayne County"), the
Court is advised that Amcast disputes the claim set forth in Wayne County's
objection. In the event that it is determined that Wayne County has an allowed
Class 3 Claim, said Claim shall be paid in full within ten days following the
entry of an order determining the final amount of said Claim. All remaining
objections that have not been withdrawn, resolved, waived or settled, and all
reservations of rights pertaining to confirmation of the Plan included therein,
are overruled on the merits.
(ii) CONFIRMATION OF PLAN. The Plan is approved and confirmed under 11
U.S.C. Section 1129.
(iii) INCORPORATION OF TERMS AND PROVISIONS OF PLAN. The terms and
provisions of the Plan are incorporated by reference into and are an integral
part of this Confirmation Order. Each term and provision of the Plan is valid,
binding and enforceable as though fully set forth herein. The provisions of the
Plan and this Confirmation Order, including the findings of fact and conclusions
of law set forth herein, are non-severable and mutually dependent. The failure
specifically to include or reference any particular term or provision of the
Plan in this Confirmation Order shall not diminish or impair the effectiveness
of such term and provision, it
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being the intent of the Court that the Plan be confirmed in its entirety. In the
event of a contradiction or inconsistency with the terms of this Confirmation
Order and the Plan, the terms of this Order shall control.
(iv) BINDING EFFECT. As of the Effective Date, and except as expressly
provided in this Confirmation Order, the Plan and its provisions shall be
binding upon the Debtors, the Reorganized Debtors, any entity acquiring or
receiving property or a distribution under the Plan and any holder of a claim
against or interest in the Debtors, including all governmental entities, whether
or not the claim or interest of such holder is impaired under the Plan and
whether or not such holder or entity has accepted the Plan. Pursuant to 11
U.S.C. Sections 1123(a) and 1142(a) and the provisions of this Confirmation
Order, the Plan and all Plan-related documents shall apply and be enforceable
notwithstanding any otherwise applicable nonbankruptcy law.
(v) APPROVAL OF RELEASES AND EXCULPATION; INJUNCTION. The Debtor releases
of parties provided in Section 12.9(a) of the Plan, the consensual and voluntary
creditor releases of third parties provided in Section 12.9(b) of the Plan, and
the exculpations provided for in Section 12.12 of the Plan are approved. As of
the Effective Date, (i) the Reorganized Debtors and any Persons seeking to
exercise the rights of the Debtors' estates (including, without limitation, any
estate representative appointed pursuant to 11 U.S.C. Section 1123(b)(3)(B)), as
to the Persons released pursuant to Section 12.9(a), (ii) all creditors who have
voted to accept the Plan, as to the Persons released in Section 12.9(b), and
(iii) all parties in interest as to the Persons exculpated in Section 12.12, are
permanently enjoined from taking any of the following actions on account of
claims, obligations, suits, judgments, damages, demands, debts, rights, causes
of action, or liabilities or terminated interests or rights against any such
Persons: commencing or continuing, in any manner or in any place, any action or
other proceeding; enforcing, attaching,
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collecting, or recovering in any manner any judgment, award, decree, or order;
creating, perfecting, or enforcing any lien or encumbrance; asserting a setoff
against any debt, liability, or obligation due to any such Person; or commencing
or continuing any action, in any manner, in any place, or against any Person
that does not comply with or is inconsistent with the provisions of the Plan.
Notwithstanding any of the foregoing, nothing in this Confirmation Order shall
negate the carve-out from the release, injunction and exculpation provisions as
set forth in Section 12.21 of the Plan. Neither the Plan, including Section
12.9(b) and 12.12, nor this Order, release or shall be deemed to release any
claims of the State of Ohio against nondebtors with respect to tax or
environmental matters.
(vi) ALLOWANCE OF PREPETITION SECURED LENDER CLAIMS AND LIENS. The
Prepetition Secured Lenders' Claims are hereby Allowed and their Liens are
legal, valid, binding, perfected, not subject to recharacterization,
subordination and otherwise unavoidable for all purposes of these Chapter 11
cases and subsequent proceedings (if any). All settlements, compromises,
releases, discharges, injunctions and exculpations set forth in the Plan shall
be, and hereby are, effective and binding on all Persons and entities who may
have had standing to assert such claims or causes of action against the
Prepetition Secured Lender Agent or the Prepetition Secured Lenders, and no
other Person or entity shall possess such standing to assert such claims or
causes of action after the Effective Date.
(vii) APPROVAL OF THE EXIT FACILITY UNDER PLAN. The Exit Facility, on the
terms and in the form which was attached to the Plan Supplement, as amended or
on terms substantially similar thereto, is hereby approved. In addition, (i) the
terms and conditions of Exit Facility loan documents are approved as being
entered into in good faith, providing the most favorable financing terms, and
being critical to the success and feasibility of the Plan; and (ii) the Debtors
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or Reorganized Debtors, as applicable, are authorized to execute and deliver the
Exit Facility, pay the fees and costs required thereunder, and grant the liens
and security interests required thereunder in substantially all of their assets.
The Debtors or Reorganized Debtors, as applicable, are authorized to execute,
deliver and perform their obligations under the Exit Facility and the New Senior
Notes, with such changes as may be agreed between the Debtors or Reorganized
Debtors, as applicable, and the lenders thereunder, as necessary or appropriate
to effect the exit financing in accordance with the Plan without any further
board of directors or shareholder consent, action or approval as permitted by
Section 1701.75 of the Ohio Revised Code or Section 303 of Delaware Corporation
Law. The Exit Facility shall constitute legal, valid, binding and authorized
obligations of the Debtors or Reorganized Debtors, as applicable, enforceable in
accordance with their terms, and shall create the security interests, liens and
mortgages purported to be created thereby.
(viii) APPROVAL OF THE NEW SHAREHOLDERS' AGREEMENT. The New Shareholders'
Agreement will be, upon the Effective Date, a legal, valid and binding
obligation of the Reorganized Debtors and the new shareholders thereto, and may
be enforced against such parties in accordance with its terms. The Reorganized
Debtors are hereby authorized to issue the New Amcast Common Stock in accordance
with the terms of the New Shareholders' Agreement.
(ix) CANCELLATION OF ALL AMCAST INTERESTS. Pursuant to Section 4.4 of the
Plan, all Amcast Interests of any kind, including without limitation, the Old
Amcast Common Stock, or any warrants or other agreements to acquire the same
(whether or not arising under or in connection with any employment agreement),
shall be cancelled as of the Effective Date and the holders thereof shall not
receive or retain any property under the Plan on account of such Interests.
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(x) TRANSFERS OF PROPERTY. On the Effective Date, the transfers of
property to be made by the Debtors under the Plan, including but not limited to
the transfers contemplated by Sections 4.1, 4.2, 4.3, 6.1, 6.3, 6.5, 6.17 and
6.18 of the Plan, (a) are or will be legal, valid, and effective transfers of
property, (b) vest or will vest the transferees with good title to such property
free and clear of all liens, charges, claims, encumbrances, or interests, except
as expressly provided in the Plan or this Confirmation Order, (c) do not and
will not constitute avoidable transfers under the Bankruptcy Code or under
applicable law, (d) do not and will not subject the Reorganized Debtors to any
liability by reason of such transfer under the Bankruptcy Code or under
applicable nonbankruptcy law, including, without limitation, any laws affecting
successor, transferee or stamp or recording tax liability, and (e) are for good
consideration and value.
(xi) TRANSFER OF CREDITOR TRUST ASSETS TO THE CREDITOR TRUST. On the
Effective Date, the Creditor Trust shall be established, the Debtors shall
transfer the Creditor Trust Assets to the Creditor Trust, and all Creditor Trust
Assets shall automatically and irrevocably vest in the Creditor Trust without
further action on the part of the Debtors, the Reorganized Debtors, or the
Liquidating Trustee, and with no reversionary interest in the Debtors or the
Reorganized Debtors. Furthermore, on the Effective Date, the Debtors and their
estates are deemed to have transferred, assigned, and conveyed to the Creditor
Trust the Creditor Trust Assets.
(xii) FAYETTEVILLE, ARKANSAS PROPERTY. Notwithstanding the foregoing, it
is hereby acknowledged that Aalberts asserts an interest in the Fayetteville,
Arkansas Property (as defined in the Plan). Prior to contracting for conveyance
of any type of the Fayetteville, Arkansas Property to any party, the Creditor
Trust shall inform such party of Aalbert's assertion of an interest and provide
notice to Aalberts (as provided in Section 9.4 of the July 4, 2004 Asset
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Purchase Agreement between Aalberts and the Debtors). The Court does not by this
Order purport to authorize the Debtors to transfer to the Creditor Trust any
interest in property that they do not own.
(xiii) IMPLEMENTATION OF THE CREDITOR TRUST. Each of the Debtors and the
Reorganized Debtors, as the case may be, is authorized to undertake any and all
acts and actions required to implement the terms, provisions and requirements
set forth in the Plan with respect to the Liquidating Trustee's rights, for the
benefit of the Creditor Trust, in the Creditor Trust Assets. Notwithstanding
anything herein, but subject, however, to the provisions of Section 6.16 of the
Plan, all rights and interests of the Debtors, the Reorganized Debtors, the
Prepetition Secured Lenders and any other post-confirmation lender, any
refinancing or successor lender, any party subject to the Plan and/or a party to
the Exit Facility, shall be subordinate and junior to the rights and interests
of the Liquidating Trustee in any Creditor Trust Asset. Notwithstanding anything
herein, but subject, however, to the provisions of Section 6.16 of the Plan, any
lien rights granted under the Plan, any Plan document, or the Exit Facility to
any party shall be junior and subordinate to the rights of the Liquidating
Trustee and the beneficiaries of the Creditor Trust in the Creditor Trust Assets
and any and all of the proceeds thereof. Subject to the provisions of Section
6.16 of the Plan, the Debtors and Reorganized Debtors, as the case may be, shall
not enter into any agreement, document or instrument with respect to the
Creditor Trust Assets, without the written consent of the Liquidating Trustee.
(xiv) PLAN IMPLEMENTATION AUTHORIZATION. Pursuant to the Plan, each of the
Debtors and the Reorganized Debtors are authorized to negotiate, 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
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conditions of the Plan and any documents, notes or securities issued pursuant to
the Plan, in form and substance reasonably acceptable to the Debtors. The
Debtors and the Reorganized Debtors and their respective directors, officers,
members, agents and attorneys, are authorized and empowered to negotiate, issue,
execute, deliver, file or record any agreement, document or security, including,
without limitation, the documents referenced in the Plan and/or the Plan
Supplement in form and substance as aforesaid, as the same may be modified,
amended and supplemented in a manner reasonably acceptable to the Debtors, and
the Committee, and to take any action necessary or appropriate to implement,
effectuate and consummate the Plan in accordance with its terms, or take any or
all corporate actions authorized to be taken pursuant to the Plan, including but
not limited to any merger, release, amendment or restatement of any code of
regulations, articles of incorporation or other organization documents of the
Debtors, whether or not specifically referred to in the Plan or any exhibit
thereto, without further order of the Court or any further board of directors or
shareholder consent, action or approval as permitted by Section 1701.75 of the
Ohio Revised Code or Section 303 of Delaware Corporation Law. 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.
(xv) 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
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Disclosure Statement and any documents, instruments or agreements, and any
amendments or modifications thereto.
(xvi) EXEMPTION FROM CERTAIN Taxes. Pursuant to 11 U.S.C. Section 1146(c),
neither (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, including, but not limited to, in connection with the
Exit Facility, (c) the making or assignment of any contract, lease or sublease,
including, but not limited to, in connection with the Exit Facility, nor (d) the
making or delivery of any deed or other instrument of transfer under, in
furtherance of, or in connection with, the Plan, including, without limitation,
the Exit Facility, any merger agreements, any agreements of consolidation,
restructuring, disposition, liquidation, or dissolution, any deeds, any bills of
sale, or any transfers of tangible or intangible property, shall be subject to
any document recording tax, stamp tax, conveyance fee, intangibles or similar
tax, mortgage tax, stamp act tax, real estate transfer tax, sales or use tax,
mortgage recording tax, or other similar tax or governmental assessment. State
and local governmental officials or agents are hereby directed to forego the
collection of any such tax or governmental assessment and to accept for filing
and recordation any of the foregoing instruments or other documents without the
payment of any such tax or governmental assessment.
(xvii) EXEMPTION FROM SECURITIES Laws. The exemption provided for in the
Plan from the requirements of Section 5 of the Securities Act of 1933, and any
state or local law requiring registration for the offer, sale, issuance,
exchange or transfer of a security, in exchange for claims against the Debtors,
is authorized by 11 U.S.C. Section 1145. The offer, sale, issuance, and/or
exchange of the New Amcast Common Stock to persons in Class 2 in exchange for
claims against the Debtors is exempt from registration under 11 U.S.C. Section
1145 and such securities are
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freely tradable by the holders thereof in accordance with the New Shareholders'
Agreement except to the extent a holder is an "underwriter" as defined in 11
U.S.C. Section 1145(b).
(xviii) APPLICABLE NON-BANKRUPTCY Law. Pursuant to 11 U.S.C. Sections
1123(a) and 1142(a), the provisions of this Confirmation Order, the Plan or any
amendments or modifications thereto shall apply and be enforceable
notwithstanding any otherwise applicable non-bankruptcy law.
(xix) APPOINTMENT OF DIRECTORS. The initial board of directors of
Reorganized Amcast shall be comprised of Charles W. McQueary, Patrick H.
Daugherty, W. Carl Moore, Jr. and Byron Pond. Any vacancy existing as of the
Effective Date shall be filled in accordance with the terms of the Articles of
Incorporation of Reorganized Amcast and/or the Code of Regulations of
Reorganized Amcast.
(xx) APPROVAL OF ASSUMPTION OR REJECTION OF CONTRACTS AND LEASES. Unless
otherwise provided in an order of or in proceedings before the Court
specifically dealing with an executory contract or unexpired lease that is
subject to assumption, (a) pursuant to Section 7.1 or 7.3 of the Plan, the
assumption of the contracts or unexpired leases identified on the Assumed
Contracts List is hereby approved; or (b) pursuant to Section 7.1 of the Plan,
an executory contract or unexpired lease that is subject to rejection is hereby
approved.
(xxi) APPROVAL OF CURE AMOUNTS. The cure amounts with respect to executory
contracts and unexpired leases listed in the Plan Supplement and as attached to
the Debtors' Notice of Executory Contracts and Unexpired Leases to be Assumed,
Along with "Cure" Amounts Associated Therewith, Pursuant to Debtors' Second
Amended Joint Plan of Reorganization dated July 26, 2005 (including any
amendments thereto, the "Cure Notice") are hereby approved. Unless otherwise
agreed between the parties, any party who received the Cure
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Notice and failed to file and serve an objection by July 25, 2005 to the cure
amounts listed in the Cure Notice has waived any right to object to such cure
amount, and is bound by the cure amount as listed in the Cure Notice.
(xxii) RETENTION OF JURISDICTION. Pursuant to sections 105(a) and 1143 of
the Bankruptcy Code, and notwithstanding the entry of this Confirmation Order,
the occurrence of the Effective Date or any provision in the Plan to the
contrary, the Court shall retain exclusive jurisdiction as provided in the Plan
over all matters arising out of, and related to, the Chapter 11 Cases and the
Plan to the fullest extent permitted by law, including, among other items and
matters, jurisdiction over those items and matters set forth in Article 11 of
the Plan.
(xxiii) TRANSFER OF RIGHTS TO REORGANIZED DEBTORS. On the Effective Date,
the Reorganized Debtors shall succeed to all of the rights, privileges and
immunities of the Debtors, including, without limitation, the attorney-client
privilege and the time in which claims may be brought under Sections 108 and 546
of the Bankruptcy Code or otherwise.
(xxiv) REVERSAL. If any or all of the provisions of this Confirmation
Order are hereafter reversed, modified or vacated by subsequent order of the
Court or any other court, such reversal, modification or vacatur shall not
affect the validity of the acts or obligations incurred or undertaken under or
in connection with the Plan prior to the Debtors' receipt of written notice of
any such order. Notwithstanding any such reversal, modification or vacatur of
this Confirmation Order, any such act or obligation incurred or undertaken
pursuant to, and in reliance on, this Confirmation Order prior to the effective
date of such reversal, modification or vacatur shall be governed in all respects
by the provisions of this Confirmation Order and the Plan or any amendments or
modifications thereto.
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(xxv) AUTHORIZATION TO CONSUMMATE PLAN. Notwithstanding Fed. R. Bankr. P.
3020(e), this Confirmation Order shall take effect immediately upon its entry
and the Debtors are authorized to consummate the Plan immediately after entry of
this Confirmation Order in accordance with the terms of the Plan.
(xxvi) NOTICE OF ENTRY OF CONFIRMATION ORDER. On or before the tenth
business day following the date of entry of this Confirmation Order, the Debtors
shall serve notice of the entry of this Confirmation Order pursuant to Fed. R.
Bankr. P. 2002(f)(7), 2002(k) and 3020(c) on all holders of claims and
interests, the United States Trustee, and other parties in interest.
(xxvii) NOTICE OF EFFECTIVE DATE. Within five business days following the
occurrence of the Effective Date, the Reorganized Debtors shall file notice of
the Effective Date with the Bankruptcy Court and serve a copy of such notice on
all the parties that are registered to receive notice via the Court's ECF filing
system and on any other party that has requested notice of these cases pursuant
to Bankruptcy Rule 2002.
IT IS SO ORDERED.
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CC:
Amcast Industrial Corporation
7887 Washington Village Drive
Dayton, OH 45459
Lawrence T. Burick, Esq.
Thompson Hine LLP
2000 Courthouse Plaza NE
P. O. Box 8801
Dayton, OH 45401-8801
United States Trustee
MaryAnne Wilsbacher
170 N. High Street
Columbus, OH 4321
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