EXHIBIT 2.2
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
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: Chapter 11
In re: :
: Case No. 03-12114 (JWV)
CHART INDUSTRIES, INC., :
et al., : Jointly Administered
:
: Related to Docket No. 5
Debtors. :
:
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
UNDER 11 U.S.C. (S) 1129(a) AND (b) AND FED. R.
BANKR. P. 3020 (I) CONFIRMING JOINT PREPACKAGED
REORGANIZATION PLAN OF CHART INDUSTRIES, INC. AND
CERTAIN SUBSIDIARIES, (II) APPROVING DISCLOSURE
STATEMENT AND (III) APPROVING SOLICITATION PROCEDURES
WHEREAS, on July 8, 2003 (the "Petition Date"), Chart Industries, Inc.
("Chart"), CAIRE INC., Chart Asia, Inc., Chart Heat Exchangers Limited
Partnership, Chart Inc., Chart International Holdings, Inc., Chart
International, Inc., Chart Leasing, Inc., Chart Management Company, Inc.,
CoolTel, Inc., GTC of Clarksville, LLC and NexGen Fueling, Inc. (collectively,
the "Debtors"), filed voluntary petitions for reorganization relief under
chapter 11 of title 11 of the
United States Code, 11 U.S.C. (S)(S) 101-1330 (as amended, the "Bankruptcy
Code"); and
WHEREAS, prior to the Petition Date, the Debtors commenced
negotiations with their Senior Lenders/1/ under the Existing Credit Facilities,
including JPMorgan Chase Bank, as Agent, regarding the possible settlement and
compromise of the Senior Lenders' claims against the Debtors under the Existing
Credit Facilities. The successful culmination of these negotiations is
memorialized in the Joint Prepackaged Reorganization Plan of Chart Industries,
Inc. and Certain Subsidiaries (Docket No. 5) (the "Original Plan"); and
WHEREAS, certain non-material modifications, as set forth in Exhibit B
hereto, subsequently were made to the Original Plan (the Original Plan, as so
modified, the "Plan"). The Plan is attached hereto as Exhibit A; and
WHEREAS, on June 20, 2003, the Debtors commenced the solicitation of
votes in respect of the
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/1/ Except as otherwise defined herein, all capitalized terms used herein shall
have the meanings ascribed to such terms in the plan (as defined herein).
Plan from the Senior Lenders (the "Solicitation"). As part of the Solicitation,
the Senior Lenders were sent copies of (i) the Plan, (ii) the Disclosure
Statement with Respect to the Joint Prepackaged Reorganization Plan of Chart
Industries, Inc. and Certain Subsidiaries (Docket No. 4) (the "Disclosure
Statement"), and (iii) an appropriate ballot (each, a "Ballot") with which to
vote (collectively, the "Solicitation Packages"). The Debtors established June
27, 2003 as the deadline (the "Voting Deadline") for receipt of votes accepting
or rejecting the Plan. After commencement of the solicitation process, the
Voting Deadline was extended for American Express Asset Management and Quantum
Partners LDC until July 2, 2003. The Debtors retained Bankruptcy Management
Corporation ("BMC") to aid them in tabulating the voting; and
WHEREAS, prior to the Voting Deadline, 100% in amount and 100% in
number of those holders of Senior Lender Claims voting on the Plan voted to
accept the Plan; and
WHEREAS on July 8, 2003, the Debtors filed their Motion for (I) Order
(A) Scheduling Combined
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Hearing for Approval of Disclosure Statement and Solicitation Procedures and
Confirmation of Plan, (B) Approving Objection Deadline and Procedures with
Respect Thereto, (C) Approving Form, Manner and Sufficiency of Notice of
Combined Hearing and (D) Deeming Class 7 to Have Rejected Plan; and (II) Order
(A) Approving Solicitation Procedures and Disclosure Statement and (B)
Confirming Plan (Docket No. 19) (the "Solicitation Procedures Motion"); and
WHEREAS, on July 8, 2003, the Debtors also filed the Original Plan and
the Disclosure Statement; and
WHEREAS, at the July 10, 2003 "first-day" hearing in these cases, the
Court entered an order (the "Scheduling Order") that granted in part the
Solicitation Procedures Motion, and that, among other things, (a) scheduled a
combined hearing for September 3, 2003 in connection with approval of the
solicitation procedures described in the Solicitation Procedures Motion (the
"Solicitation Procedures"), approval of Disclosure Statement and confirmation
the Plan, and (b) approved the form, manner and sufficiency of the notice of
such combined hearing; and
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WHEREAS, on August 22, 2003, the Debtors filed the Notice of Filing of
Affidavits of Publication for Notice of Combined Hearing on Disclosure Statement
and Confirmation of Plan of Reorganization (Docket No. 96) (the "Notice of
Publication"), which notice attached the affidavits of publication relating to
the publication of the Notice of Combined Hearing on Disclosure Statement and
Confirmation of Plan of Reorganization in The New York Times and The Wall Street
Journal on August 8, 2003, as required under the Scheduling Order; and
WHEREAS, on August 26, 2003, the Debtors filed the Declaration of
Balloting Agent Regarding Tabulation of Votes in Connection with Joint
Prepackaged Reorganization Plan of Chart Industries, Inc. and Certain
Subsidiaries (Docket No. 102) (the "Voting Declaration"), which declaration sets
forth the results of the Solicitation; and
WHEREAS, on August 26, 2003, the Debtors filed affidavits and
declarations of service (Docket Nos. 103, 104 and 109) (the "Declarations of
Service") evidencing service of the notice of the Confirmation Hearing; and
WHEREAS, on August 22, 2003, the Debtors filed
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the Plan Supplement to Joint Prepackaged Reorganization Plan of Chart
Industries, Inc. and Certain Subsidiaries (Docket No. 97) (the "First Plan
Supplement"); and on August 29, 2003, the Debtors filed the Second Plan
Supplement to Joint Prepackaged Reorganization Plan of Chart Industries, Inc.
and Certain Subsidiaries (Docket No. 114) (the "Second Plan Supplement" and,
together with the First Plan Supplement, the "Plan Supplement"); and
WHEREAS, on August 26, 2003, the Debtors filed the Memorandum in
Support of (I) Approval of Solicitation Procedures and Disclosure Statement and
(II) Confirmation of Joint Prepackaged Reorganization Plan of Chart Industries,
Inc. and Certain Subsidiaries (Docket No. 105) (the "Confirmation Memorandum");
and
WHEREAS, on August 29, 2003, the Debtors filed the Declaration of
Glenn C. Pollack in Support of Confirmation of Joint Prepackaged Reorganization
Plan of Chart Industries, Inc. and Certain Subsidiaries (Docket No. 113) and the
Declaration of Michael F. Biehl in Support of (I) Approval of Solicitation
Procedures and Disclosure Statement and (II) Confirmation of Joint Prepackaged
Reorganization Plan of Chart Industries, Inc.
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and Certain Subsidiaries (Docket No. 116) (together, the "Confirmation
Declarations"); and
WHEREAS, on August 25, 2003, HPA Associates LLC, Charles S. Holmes and
James Pinto (collectively, "HH&P") filed an objection (Docket No. 98) (the
"Confirmation Objection") to confirmation of the Plan asserting, among other
things, that (i) payments are owed to HH&P under a finders fee arrangement
alleged in the Confirmation Objection (the "Alleged HH&P Finders Fee
Arrangement"), (ii) such asserted payment obligations give rise to a claim
against the Debtors and (iii) such claim is not properly classified as a Class 9
Other Equity Interest; and
WHEREAS, HH&P has agreed to withdraw its Confirmation Objection in
consideration of decretal paragraph 40 of this Confirmation Order; and
WHEREAS, the Confirmation Hearing was held on September 3, 2003.
NOW, THEREFORE, based upon the Court's review of the Disclosure
Statement, the Plan, the Plan Supplement, the Solicitation Packages, the Notice
of Publication, the Voting Declaration, the Declarations of
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Service, the Confirmation Declarations and the Confirmation Memorandum; and upon
(a) all of the evidence proffered or adduced at, memoranda filed in connection
with, and arguments of counsel made at, the Confirmation Hearing and (b) the
entire record of these chapter 11 cases; and after due deliberation thereon and
good cause appearing therefor, it is hereby found and determined that:/2/
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Jurisdiction; Venue; Core Proceeding (28 U.S.C. (S)(S) 157(b)(2)
and 1334(a)). This Court has jurisdiction over the Debtors' chapter 11 cases
under 28 U.S.C. (S)(S) 157 and 1334. Venue is proper under 28 U.S.C. (S)(S) 1408
and 1409. Confirmation of the Plan, approval of the Disclosure Statement and
approval of the Solicitation Procedures are core proceedings under 28 U.S.C. (S)
157(b)(2)(L) over which the Court has exclusive
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/2/ Pursuant to Bankruptcy Rule 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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jurisdiction.
2. Judicial Notice. The Court takes judicial notice of the docket of
these 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 all evidence and argument made,
proffered or adduced at the hearings held before the Court during these chapter
11 cases.
3. Burden of Proof. The Debtors, as proponents of the Plan, have met
their burden of proving the elements of sections 1129(a) and (b) of the
Bankruptcy Code by a preponderance of the evidence.
4. Adequacy of Disclosure Statement. The Disclosure Statement contains
"adequate information," as such term is defined in section 1125 of the
Bankruptcy Code. 1.
5. Adequacy of Solicitation. Votes for acceptance or rejection of the
Plan were solicited in good faith and in compliance with sections 1125 and 1126
of the Bankruptcy Code, Bankruptcy Rules 3017 and 3018 and all other applicable
provisions of the Bankruptcy
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Code. The Debtors properly relied on the exemption from the registration
requirements of the Securities Act of 1933 (as amended, and including the rules
and regulations promulgated thereunder, the "Securities Act"), and no other
nonbankruptcy law applies to the Solicitation. All procedures used to distribute
the Solicitation Packages to the appropriate holders of Claims entitled to vote
on the Plan and to tabulate Ballots were fair and were conducted in accordance
with the applicable provisions of the Bankruptcy Code, the Bankruptcy Rules, the
local rules of the Bankruptcy Court, and all other applicable rules, laws and
regulations.
6. Transmittal and Mailing of Materials; Notice. The Disclosure
Statement, the Plan, the Solicitation Packages and notices of the Confirmation
Hearing were served in compliance with the Scheduling Order, and such
transmittal and service were adequate and sufficient. Adequate and sufficient
notice of the Confirmation Hearing and the other deadlines described in the
Scheduling Order was given in compliance with the Bankruptcy Rules and the
Scheduling Order, and no other or further notice is or shall be required.
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7. Impaired Class that has Voted to Accept the Plan. As set forth in
the Plan, Class 2 is impaired; and, as set forth in the Voting Declaration,
Class 2 has voted to accept the Plan pursuant to the requirements of sections
1124 and 1126 of the Bankruptcy Code. Thus, at least one impaired Class of
Claims has voted to accept the Plan.
8. Classes Deemed to have Accepted the Plan. Classes 1, 3, 4 and 5 are
not impaired under the Plan and are deemed to have accepted the Plan pursuant to
section 1126(f) of the Bankruptcy Code.
9. Classes Deemed to have Rejected the Plan. In accordance with the
Plan and the Scheduling Order, Classes 6, 7, 8, 9 and 10 are deemed to have
rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code.
10. Plan Compliance with Bankruptcy Code (11 U.S.C. (S) 1129(a)(1)).
The Plan complies with the applicable provisions of the Bankruptcy Code, thereby
satisfying section 1129(a)(1) of the Bankruptcy Code.
(a) Proper Classification (11 U.S.C. (S)(S) 1122, 1123(a)(1)). In
addition to DIP Facility Claims, Administrative Claims and Priority Tax
Claims, which need not be classified, the Plan designates ten Classes of
Claims and Interests. The Claims and Interests placed in each Class are
substantially
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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 Classes do not unfairly discriminate among holders of Claims
and Interests. Thus, the Plan satisfies sections 1122 and 1123(a)(1) of the
Bankruptcy Code.
(b) Specify Unimpaired Classes (11 U.S.C. (S) 1123(a)(2)). Article
IV.B of the Plan specifies that Classes 1, 3, 4 and 5 are unimpaired under
the Plan, thereby satisfying section 1123(a)(2) of the Bankruptcy Code.
(c) Specify Treatment of Impaired Classes (11 U.S.C. (S) 1123(a)(3)).
Article IV.B of the Plan designated Classes 2, 6, 7, 8, 9 and 10 as
impaired and Article IV.C specifies the treatment of Claims and Interests
in those Classes, thereby satisfying section 1123(a)(3) of the Bankruptcy
Code.
(d) No Discrimination (11 U.S.C. (S) 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 section 1123(a)(4) of the Bankruptcy Code.
(e) Implementation of Plan (11 U.S.C. (S) 1123(a)(5)). The Plan
provides adequate and proper means for its implementation, thereby
satisfying section 1123(a)(5) of the Bankruptcy Code.
(f) Non-Voting Equity Securities (11 U.S.C. (S) 1123(a)(6)). Article
V.A of the Plan provides that the certificates of incorporation or other
organization documents of each Reorganized Debtor shall be amended as of
the Consummation Date to provide for the inclusion of a provision
prohibiting the issuance of nonvoting equity securities, subject
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to further amendment of such certificates of incorporation or other
organization documents as permitted by applicable law. Thus, the
requirements of section 1123(a)(6) of the Bankruptcy Code are satisfied.
(g) Selection of Officers and Directors (11 U.S.C. (S) 1123(a)(7)). At
or prior to the Confirmation Hearing, the Debtors properly and adequately
disclosed or otherwise identified the procedures for determining the
identity and affiliations of all individuals or entities proposed to serve
on or after the Consummation 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 Claim and
Interest holders and with public policy and, accordingly, satisfies the
requirements of section 1123(a)(7) of the Bankruptcy Code.
(h) Additional Plan Provisions (11 U.S.C. (S) 1123(b)). The Plan's
provisions are appropriate and not inconsistent with the applicable
provisions of the Bankruptcy Code.
11. Compliance with Bankruptcy Rule 3016. The Plan is dated and
identifies the entities submitting it, thereby satisfying Bankruptcy Rule
3016(a). The filing of the Disclosure Statement with the Court satisfies
Bankruptcy Rule 3016(b).
12. Compliance with Bankruptcy Rule 3017. The Debtors have given
notice of the Confirmation Hearing as required by Bankruptcy Rule 3017(d). The
Solicitation Packages were transmitted to the Senior Lenders pursuant
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to Bankruptcy Rule 3017(e).
13. Compliance with Bankruptcy Rule 3018. The solicitation of votes to
accept or reject the Plan satisfies Bankruptcy Rule 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
Packages and Solicitation Procedures comply with section 1126 of the Bankruptcy
Code, thereby satisfying the requirements of Bankruptcy Rule 3018.
14. Debtors' Compliance with Bankruptcy Code (11 U.S.C. (S)
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.
15. Plan Proposed in Good Faith (11 U.S.C. (S) 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. 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
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other things, (i) the reorganization of the Debtors' businesses, (ii) the
preservation and maximization of the Debtors' business enterprise values through
a rapid, efficient reorganization under chapter 11, (iii) restructuring of the
Debtors' capital structure, (iv) maximization of the recovery to holders of
Claims and Interests under the circumstances of these cases, and (v) preserving
jobs of the Debtors' employees in connection with the Debtors' continuing
operations. Furthermore, the Plan reflects and is the result of arms' length
negotiations between the Debtors and the Senior Lenders and reflects the best
interests of the Debtors' estates, creditors and equity holders.
16. Payments for Services or Costs and Expenses (11 U.S.C. (S)
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 or 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 section 1129(a)(4) of the
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Bankruptcy Code.
17. Directors, Officers and Insiders (11 U.S.C. (S) 1129(a)(5)). The
Debtors have complied with section 1129(a)(5) of the Bankruptcy Code. 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. The appointment to, or continuance in, such offices of such
persons who will continue in office 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.
18. No Rate Changes (11 U.S.C. (S) 1129(a)(6)). The Debtors' Plan does
not provide for any rate change that requires regulatory approval. Section
1129(a)(6) of the Bankruptcy Code is thus not applicable.
19. Best Interests of Creditors (11 U.S.C. (S) 1129(a)(7)). The Plan
satisfies section 1129(a)(7) of the Bankruptcy Code. The liquidation analysis
attached
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as Exhibit D to the Disclosure Statement and other evidence proffered or adduced
at the Confirmation 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 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 Consummation 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.
20. Acceptance or Rejection by Certain Classes (11 U.S.C. (S)
1129(a)(8)). Class 1, 3, 4 and 5 are Classes of unimpaired Claims that are
conclusively presumed to have accepted the Plan under section 1126(f) of the
Bankruptcy Code. Class 2 has voted to accept the Plan in accordance with
sections 1126(c) and (d) of the Bankruptcy Code. Classes 6, 7, 8, 9 and 10 are
not entitled to receive or retain any property under the Plan on account of
their Claims or Interests and, therefore, are deemed to have rejected the Plan
pursuant to section 1126(g) of the Bankruptcy Code. Although
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section 1129(a)(8) of the Bankruptcy Code has not been satisfied with respect to
Classes 6, 7, 8, 9 and 10, the Plan is confirmable because the Plan satisfies
section 1129(b) of the Bankruptcy Code with respect to these Classes of Claims
and Interests. See Paragraph 27 below. As set forth in the Voting Declaration,
100% in amount and 100% in number of those holders of Senior Lender Claims
voting on the Plan voted to accept the Plan. No other Classes of Claims or
Interests were entitled to vote on the Plan.
21. Treatment of Administrative, Priority and Tax Claims (11 U.S.C.
(S) 1129(a)(9)). The treatment of DIP Facility Claims, Administrative Claims,
Priority Tax Claims and Other Priority Claims pursuant to Articles III.A, III.B,
III.C and IV.C.1 of the Plan satisfies the requirements of sections
1129(a)(9)(A), (B) and (C) of the Bankruptcy Code.
22. Acceptance By Impaired Class (11 U.S.C. (S) 1129(a)(10)). Class 2
is an Impaired Class of Claims that voted to accept the Plan with respect to the
Debtors and, to the Debtors' knowledge, does not contain insiders whose votes
have been counted. Therefore, the
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requirement of section 1129(a)(10) of the Bankruptcy Code that at least one
Class of Claims against or Interests in the Debtors that is impaired under the
Plan has accepted the Plan, determined without including any acceptance of the
Plan by any insider, has been satisfied.
23. Feasibility (11 U.S.C. (S) 1129(a)(11)). The projections set forth
in the Disclosure Statement and other evidence proffered or adduced by the
Debtors at the Confirmation Hearing or in support of confirmation of the Plan
with respect to feasibility (a) are persuasive and credible, (b) have not been
controverted by other evidence or challenged in any objection, and (c) 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 section 1129(a)(11) of the Bankruptcy Code.
24. Payment of Fees (11 U.S.C. (S) 1129(a)(12)). All fees payable
under section 1930 of title 28, United States Code, as determined by the Court,
have been paid or will be paid on the Consummation Date pursuant to Article
XIV.C of the Plan, thus satisfying the
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requirements of section 1129(a)(12) of the Bankruptcy Code.
25. Continuation of Retiree Benefits (11 U.S.C. (S) 1129(a)(13)). Any
retiree benefits within the meaning of 11 U.S.C. (S) 1114 will be treated as
executory contracts and assumed pursuant to Article VIII.E of the Plan. Thus,
the requirements of section 1129(a)(13) of the Bankruptcy Code are satisfied.
26. Principal Purpose (11 U.S.C. (S) 1129(d)). The principal purpose
of the Plan is neither the avoidance of taxes nor the avoidance of section 5 of
the Securities Act, and no governmental unit has objected to the confirmation of
the Plan on any such grounds. The Plan therefore satisfies the requirements of
section 1129(d) of the Bankruptcy Code.
27. Fair and Equitable; No Unfair Discrimination (11 U.S.C. (S)
1129(b)). Classes 6, 7, 8, 9 and 10 are impaired Classes of Claims or Interests
that are deemed to have rejected the Plan pursuant to section 1126(g) of the
Bankruptcy Code because the holders of such Claims and Interests will not
receive or retain any property under the Plan on account of such Claims and
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Interests. The Debtors presented uncontroverted evidence at the Confirmation
Hearing that the Plan does not discriminate unfairly and is fair and equitable
with respect to Classes 6, 7, 8, 9 and 10, as required by section 1129(b)(1) of
the Bankruptcy Code, and that no Class of Claims or Interests junior to such
Classes is receiving or retaining any property on account of such Claim or
Interest under the Plan. Moreover, the fair and equitable standard is satisfied
because the Plan provides that no holders of Claims in Classes senior to Classes
6, 7, 8, 9 and 10 will receive or retain property of a value that exceeds 100%
of the value of their Claims. Thus, the Plan may be confirmed notwithstanding
the Debtors' failure to satisfy section 1129(a)(8) of the Bankruptcy Code. Upon
confirmation, the Plan shall be binding upon the members of Classes 6, 7, 8, 9
and 10.
28. Good Faith Solicitation (11 U.S.C. (S) 1125(e)). Based on the
record before the Court in these chapter 11 cases, the Debtors and their
directors, officers, employees, equity holders, members, agents, advisors,
accountants, financial advisors, consultants, attorneys, and other
representatives have acted in good
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faith within the meaning of section 1125(e) of the Bankruptcy Code and in
compliance with the applicable provisions of the Bankruptcy Code and Bankruptcy
Rules in connection with all of their respective activities relating to the
solicitation of acceptances of 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 and injunctive provisions set forth in Article XIV of the Plan.
29. Plan Modifications. The modifications to the Plan set forth on
Exhibit B hereto (the "Plan Modifications") do not materially or adversely
affect or change the treatment of any holder of a Claim or Interest who has not
accepted the modifications in writing. Accordingly, pursuant to Bankruptcy Rule
3019, the Plan Modifications do not require additional disclosure under section
1125 of the Bankruptcy Code or resolicitation of acceptances or rejections under
section 1126 of the Bankruptcy Code, nor do they require that holders of Claims
or Interests be afforded an opportunity to change previously cast acceptances or
rejections of the Plan.
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Disclosure of the Plan Modifications on the record at the Confirmation Hearing
constitutes due and sufficient notice thereof under the circumstances of the
chapter 11 cases.
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30. No Objection to Assumed Contracts and Leases. No non-Debtor party
to an executory contract or unexpired lease to be assumed pursuant to Article
VIII of the Plan has objected to the assumption thereof.
31. 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, section 1141(d)(3) of the Bankruptcy Code is not applicable.
32. Satisfaction of Confirmation Requirements. The Plan satisfies the
requirements for confirmation set forth in section 1129 of the Bankruptcy Code
and Article XI of the Plan.
33. Retention of Jurisdiction. The Court may properly retain
jurisdiction over the matters set forth in Article XIII of the Plan and/or
section 1142 of the Bankruptcy Code.
34. Rule 9019 Settlement; Releases and Discharges. Pursuant to
Bankruptcy Rule 9019 and in consideration for the distributions and other
benefits provided under, described in, contemplated by and/or
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implemented by the Plan, the releases and discharges described in Article XIV of
the Plan constitute good faith compromises and settlements of the matters
covered thereby. Such compromises and settlements are made in exchange for
consideration, set forth the standard of liability and are in the best interest
of the holders of Claims and Interests, are within the range of possible
litigation outcomes, are fair, equitable and reasonable and are integral
elements of the restructuring and resolution of the chapter 11 cases in
accordance with the Plan. Each of the discharge, release and exculpation
provisions set forth in the Plan:
(a) falls within the jurisdiction of this Court under 28 U.S.C. (S)(S)
1334(a), (b) and (d);
(b) is an essential means of implementing the Plan pursuant to section
1123(a)(5) of the Bankruptcy Code;
(c) is an integral element of the transactions incorporated into the
Plan;
(d) confers material benefit on, and is in the best interest of, the
Debtors, their Estates and creditors;
(e) is reasonable and voluntary given the scope of the discharge,
release and exculpation provisions, and the Debtors' compliance with
Bankruptcy Rule 2002(c)(3);
(f) is important to the overall objectives of
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the Plan to finally resolve all Claims among or against the parties in
interest in the chapter 11 cases with respect to the Debtors, and their
organization, capitalization, operation and reorganization to the extent
provided in the Plan; and
(g) is consistent with sections 105, 1123 and 1129 of the Bankruptcy
Code and other applicable provisions of the Bankruptcy Code.
35. Discharge, Release and Exculpation. The failure to effect the
discharge, release and exculpation provisions of the Plan would impair the
Debtors' ability to confirm the Plan. Accordingly, the compromises and
settlements embodied in the discharge, release and exculpation provisions
described in Article XIV of the Plan are approved.
DECREES
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:
1. Disclosure Statement. The Disclosure Statement contains adequate
information within the meaning of and for all purposes of sections 1125 and
1126(b) of the Bankruptcy Code, and the Disclosure Statement is hereby approved.
2. Solicitation Procedures. Votes for
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acceptance or rejection of the Plan were solicited in good faith and in
compliance with sections 1125 and 1126 of the Bankruptcy Code, Bankruptcy Rules
3017 and 3018, all other applicable provisions of the Bankruptcy Code and all
other rules, laws and regulations, and the Solicitation Procedures and
Solicitation are hereby approved.
3. Confirmation. The Plan, including the Plan Supplement, 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 this Confirmation Order.
4. Objections. All 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.
5. Provisions of Plan and Order Non-Severable and Mutually Dependent.
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.
6. Binding Effect. Effective on the
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Consummation 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 sections 1123(a) and 1142(a) of the Bankruptcy Code and
the provisions of this Confirmation Order, the Plan and all Plan-related
documents shall apply and be enforceable notwithstanding any otherwise
applicable non-bankruptcy law.
7. Vesting of Assets (11 U.S.C. (S) 1141(b) and (c)). Except as
otherwise provided in the Plan or this Confirmation Order, each Debtor will, as
a Reorganized Debtor, continue to exist after the Consummation Date as a
separate corporate or other business entity, with all the powers of a
corporation or other business entity under applicable law and without prejudice
to any right to alter or terminate such existence (whether by merger,
28
dissolution or otherwise) under applicable state law. Except as otherwise
provided in the Plan or this Confirmation Order, on and after the Consummation
Date the property of the Debtors' estates shall (i) vest in the Reorganized
Debtors on the Consummation Date and (ii) be vested free and clear of all liens,
security interests, and Claims and Interests of holders of Claims and Interests.
Except as otherwise provided in the Plan or this Confirmation Order, from and
after the Consummation Date, the Reorganized Debtors may operate their business
and may use, acquire and dispose of property, and compromise or settle any
Claims and Interests without supervision or approval by the Court and free of
any restrictions of the Bankruptcy Code or Bankruptcy Rules.
8. Transfers of Property. On the Consummation Date, the transfers of
property by the Debtors (i) to the Reorganized Debtors (a) are or will be legal,
valid and effective transfers of property, (b) vest or will vest the Reorganized
Debtors with good title to such property free and clear of all liens, charges,
Claims, encumbrances or Interests, except as expressly
29
provided in the Plan or Confirmation Order, (c) do not and will not constitute
avoidable transfers under the Bankruptcy Code or under applicable bankruptcy or
nonbankruptcy law, and (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 (ii) to holders of
Claims or Interests under the Plan are for good consideration and value.
9. Assumption of Executory Contracts and Unexpired Leases (11 U.S.C.
(S) 1123(b)(2)). On the Consummation Date, pursuant to Article VIII of the Plan,
all executory contracts and unexpired leases shall be deemed assumed by the
Reorganized Debtors in accordance with sections 365 and 1123(b) of the
Bankruptcy Code, except for executory contracts and unexpired leases for which
the Plan provides different treatment, or which are the subject of any pending
motions (the "Pending Motions"), including the following: (A) Debtors' Motion
30
for Order Under 11 U.S.C. (S)(S) 105 and 365 and Fed R. Bankr. P. 6006
Authorizing Assumption of Lease with PDC Office Park Partnership, as Amended
(Docket No. 79); (B) Debtors' Motion for Order Under 11 U.S.C. (S) 365 and Fed
R. Bankr. P. 6006 Authorizing Rejection of Unexpired Leases of Nonresidential
Real Property (Docket No. 80); and (C) Debtors' Motion for Order Under 11 U.S.C.
(S)(S) 105, 363 and 365 and Fed R. Bankr. P. 6004, 6006 and 9019 Authorizing
Rejection of Unexpired Leases of Nonresidential Real Property and Approving
Related Letter Agreement (Docket No. 115). Each executory contract and unexpired
lease assumed pursuant to the Plan shall revest in and be fully enforceable by
the Reorganized Debtors in accordance with its terms, except as modified by the
provisions of the Plan. The Reorganized Debtors, except as otherwise agreed by
the parties or ordered by the Court, will, pursuant to Article VIII.C of the
Plan, cure any and all undisputed defaults under any executory contract or
unexpired lease assumed pursuant to the Plan. All executory contracts or
unexpired leases assumed or assumed and assigned by the Debtors during the
chapter 11 cases or under the Plan shall remain in full force and
31
effect for the benefit of the Reorganized Debtors or their assignees
notwithstanding any provision in such contract or lease (including those
described in sections 365(b)(2) and (f) of the Bankruptcy Code) that prohibits
such assignment or transfer or that enables, permits or requires termination of
such contract or lease. This Court shall retain jurisdiction to determine the
Pending Motions.
10. Directors and Officers of Reorganized Debtors. Following Plan
confirmation, the boards of directors of the Subsidiary Debtors will remain in
place, unless and until such boards are replaced by action of the equity owners
of the Subsidiary Debtors; and the Reorganized Debtors will continue to be
managed by the current members of their respective management teams (except that
William T. Allen shall be appointed Reorganized Chart's interim Chief Executive
Officer on the Consummation Date), unless and until such management is replaced
by the respective boards of directors of the Reorganized Debtors. On the
Consummation Date, the Board of Directors of Reorganized Chart will consist of
seven
32
(7) members. Pursuant to Article V.D of the Plan, (a) the Senior Lenders
have designated William T. Allen (Chief Executive Officer), Stephen S. Gray
(Independent Director), Stephen A. Kaplan, Michael P. Harmon, Geoffrey S.
Rehnert and Timothy White as directors of Reorganized Chart, and (b) the current
board of directors of Chart has designated Arthur S. Holmes as a director of
Reorganized Chart to serve as the Initial Board Designee. In addition, the
current board of directors of Chart has designated Lazzaro G. Modigliani as the
Secondary Board Designee. Each such designee shall be authorized to serve as a
director of Reorganized Chart in accordance with the Plan and in the capacity to
which he was designated without the necessity of further corporate action by
Reorganized Chart or its shareholders. Upon the initial election or appointment
following the Consummation Date of a permanent Chief Executive Officer of
Reorganized Chart to succeed William T. Allen, (i) such permanent Chief
Executive Officer shall become a director of Reorganized Chart, serving
thereafter in the directorship in which William T. Allen served before such
election, (ii) Stephen S. Gray (or any successor then
33
serving in the Independent Director directorship) shall be removed and cease to
be a director of Reorganized Chart, (iii) William T. Allen shall continue to be
a director of Reorganized Chart, serving thereafter in the Independent Director
directorship in which Stephen S. Gray (or his successor) served before such
election, and (iv) the changes described in the foregoing clauses (i), (ii) and
(iii) shall take place without the necessity of further corporate action by
Reorganized Chart or its shareholders.
11. Corporate Action. On the Consummation Date, the adoption of the
amended certificates of incorporation and bylaws or similar constituent
documents of the Reorganized Debtors and all other actions contemplated by the
Plan shall be authorized and approved in all respects (subject to the provisions
of the Plan). All matters provided for in the Plan involving the corporate
structure of the Debtors or Reorganized Debtors, and any corporate action
required by the Debtors or Reorganized Debtors in connection with the Plan,
shall be deemed to have occurred and shall be in effect without any requirement
of further action by the security
34
holders, directors or management of the Debtors or Reorganized Debtors.
12. General Authorizations. Each of the Debtors and Reorganized
Debtors and their respective directors, officers, members, managers, agents and
attorneys, are authorized and empowered (i) to issue, execute, deliver, perform,
file or record any agreement, document, instrument, note or security, including,
without limitation, the documents referenced in the Plan and/or contained in the
Plan Supplement, as modified, amended and supplemented, and (ii) to take (a) any
action necessary or appropriate to implement, effectuate and consummate the Plan
in accordance with its terms, or (b) any or all corporate actions authorized to
be taken pursuant to the Plan, including but not limited to any merger,
execution, delivery or performance of an agreement or instrument, issuance of
securities, granting of any security interest or pledge, giving of a release, or
amendment or restatement of any bylaws, certificates of incorporation or other
organization documents of the Debtors, whether or not specifically referred to
in the
35
Plan or any exhibit thereto, without further order of the Court. 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.
13. Discharge. Except as otherwise provided in the Plan or this
Confirmation Order, the rights afforded under the Plan and the treatment of
Claims and Interests under the Plan are deemed to be in exchange for, and in
complete satisfaction, discharge and release of, all Claims against and
Interests in the Debtors. Except as otherwise provided in the Plan or this
Confirmation Order, entry of this Confirmation Order shall act as a discharge,
effective as of the Consummation Date, of any and all Claims against and
Interests in the Debtors or any of their assets that arose at any time before
the entry of this Confirmation Order. The discharge shall be effective as to
each Claim and Interest except as otherwise expressly provided in the Plan or
this Confirmation Order, regardless of whether:
36
(a) a proof of claim or interest based on such Claim, Interest, debt
or liability is filed or deemed filed under section 501 of the Bankruptcy
Code;
(b) a Claim or Interest based on such Claim, Interest, debt or
liability is allowed; or
(c) the holder of a Claim, Interest, debt or liability, or Claim or
Interest based on such Claim, Interest, debt or liability, has accepted the
Plan.
The foregoing shall not release the Debtors from their liabilities and
obligations as set forth in the Plan or this Confirmation Order.
14. Except as expressly provided in the Plan or this Confirmation
Order, the Debtors are discharged effective upon the Confirmation Date, subject
to the occurrence of the Consummation Date, from any "debt" (as that term is
defined in section 101(12) of the Bankruptcy Code), and the Debtors' liability
in respect thereof is extinguished completely, whether such debt (i) is reduced
to judgment or not, liquidated or unliquidated, contingent or noncontingent,
asserted or unasserted, fixed or unfixed, matured or unmatured, disputed or
undisputed, legal or equitable, or known or unknown, or (ii) arose from (a) any
agreement of the Debtors that has either been assumed or rejected in the chapter
11 cases
37
or pursuant to the Plan, (b) any obligation of the Debtors incurred before the
Confirmation Date, or (c) any conduct of the Debtors prior to the Confirmation
Date, or that otherwise arose before the Confirmation Date, including, without
limitation, all interest, if any, on any such debts, whether such interest
accrued before or after the Petition Date.
15. Issuance of New Securities. Pursuant to Article V.C of the Plan,
the issuance of securities as set forth in the Plan by the Reorganized Debtors,
including, without limitation, the issuance of the New Securities, is hereby
authorized without the necessity of further corporate action by any Reorganized
Debtor or its equity owners and without further act or action under applicable
law, regulation, order or rule. The issuance of such securities under the Plan
shall be deemed to be made for full and adequate consideration.
16. Cancellation of Notes, Instruments, Debentures and Common Stock.
Pursuant to Article V.B of the Plan, on the Consummation Date, except as
otherwise provided in the Plan or this Confirmation Order, all Old Chart Common
Stock, Old Subsidiary Equity and Other
38
Equity Rights (collectively, the "Existing Securities") shall be cancelled and
deemed terminated, and the obligations of the Debtors under the foregoing shall
be discharged. As of the Consummation Date, all Existing Securities that have
been authorized to be issued but that have not been issued shall be deemed
cancelled and extinguished without any further action of any party.
17. Plan Documents. There being no objections to any of the documents
contained in the Plan or Plan Supplement, and any amendments, modifications and
supplements thereto, and all documents and agreements introduced therein or
contemplated by the Plan (including all exhibits and attachments thereto and
documents referred to therein), including but not limited to (a) the New
Securities, (b) the Certificates of Incorporation of the Reorganized Debtors,
(c) the By-Laws of the Reorganized Debtors and (d) the Investor Rights
Agreement, the execution, delivery and performance thereof by the Reorganized
Debtors are authorized and approved, without need for further corporate action
or further order or authorization of the Court. The Debtors and the Reorganized
Debtors, as appropriate, are
39
authorized and empowered to make any and all modifications to any and all
documents included as part of the Plan and Plan Supplement that may be agreed to
by the parties thereto and are consistent with the Plan.
18. New Credit Agreements. The Debtors and the Reorganized Debtors are
authorized and empowered (i) to execute the New Credit Agreements and all
related documents, including without limitation all documents securing the
obligations of the Debtors and the Reorganized Debtors under the New Credit
Agreements (collectively, the "New Credit Documents") in a form acceptable to
the Debtors and the Senior Lenders and (ii) to grant any liens, mortgages and
security interests in any real property, personal property and fixtures of any
of the Debtors and Reorganized Debtors as contemplated by the New Credit
Documents. Notwithstanding any other provisions of the Plan or this Confirmation
Order, as of the Consummation Date, each New Credit Document executed by the
Reorganized Debtors shall constitute a legal, valid and binding obligation of
each of the Reorganized Debtors, enforceable against each of the Reorganized
Debtors in accordance with its terms. The obligations
40
created under the New Credit Documents have been incurred and given in exchange
for fair consideration and reasonably equivalent value.
19. Existing Senior Lender Liens. Notwithstanding anything in this
Confirmation Order or in the Plan to the contrary, the filings and recordings of
liens, mortgages and security interests in any real property, personal property
and fixtures of any of the Debtors in connection with the Existing Credit
Facilities shall not be extinguished, cancelled or discharged pursuant to the
Plan or this Confirmation Order, and shall remain in full force and effect and
shall be applicable to the real and personal property securing the New Credit
Agreements to the extent such filings and recordings are not superseded by
filings and recordings made in connection with the New Credit Agreements.
20. Governmental Approvals Not Required. Except as set forth in the
Plan, 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 (i) the implementation or consummation of
the Plan and (ii) any
41
related 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, any related documents, instruments or agreements
related thereto, and any amendments or modifications to any of the foregoing.
21. 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; (c) the making or assignment of any
contract, lease or sublease; or (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, any merger agreements; agreements of
consolidation, restructuring, disposition, liquidation, or dissolution; deeds;
bills of sale; or transfers of tangible property will not be subject to any
stamp tax, or other similar tax or any tax held to be a stamp tax or other
similar tax by applicable law.
22. Final Fee Applications. Pursuant to
42
Article XIV.B of the Plan, all final requests for compensation or reimbursement
of costs and expenses pursuant to sections 327, 328, 330, 331, 503(b) or 1103 of
the Bankruptcy Code for services rendered to the Debtors prior to the
Consummation Date (all such claims, including Professional Fee Claims, the "Fee
Claims"), must be filed with the Court and served on the Reorganized Debtors,
their counsel and the Office of the United States Trustee no later than sixty
(60) days after the Consummation Date; provided, however, that any party who may
receive compensation or reimbursement of expenses pursuant to the Order Under 11
U.S.C. (S)(S) 105, 327, 330 and 331 Authorizing Retention and Payment of
Professionals Utilized by Debtors in Ordinary Course of Business (Docket No. 86)
may continue to receive such compensation and reimbursement of expenses for
services rendered before the Consummation Date, without further Court review or
approval. Holders of Fee Claims that are required to file and serve requests for
final allowance of their Fee Claims and that do not file and serve such requests
within the time period set forth herein shall be forever barred from asserting
such Claims against the
43
Debtors, the Reorganized Debtors and their respective property, and such Fee
Claims shall be deemed discharged as of the Consummation Date.
23. Termination of Injunctions and Automatic Stay. Pursuant to Article
XIV.L of the Plan, all injunctions or stays provided for 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 Consummation Date, unless
the Plan or this Confirmation Order provides otherwise.
24. Injunctions. Except as otherwise expressly provided in the Plan,
this Confirmation Order, or a separate order of this Court, all injunctions set
forth in the Plan are approved.
25. Exculpation. Except as otherwise expressly provided in the Plan,
this Confirmation Order or a separate order of this Court, the exculpation and
limitation of liability provisions set forth in Article XIV.J of the Plan are
approved.
26. Releases. Pursuant to section 1123(b)(3) of the Bankruptcy Code
and Bankruptcy Rule 9019(a): (a)
44
the settlements, compromises, releases, discharges, exculpations and injunctions
set forth in the Plan, including, but not limited to, the releases set forth in
Article XIV.H of the Plan, shall be, and hereby are, approved as fair,
equitable, reasonable and in the best interests of the Debtors, the Reorganized
Debtors and their Estates, creditors and equity holders; and (b) the settlement
or compromise of all claims or controversies set forth in Article XIV.K of the
Plan relating to the termination of all subordination rights that any holder of
a Claim or Interest may have with respect to any Allowed Claim or Interest, or
any distribution to be made pursuant to the Plan on account of such Allowed
Claim, is in the best interests of the Debtors, their Estates and equity
holders, and shall be, and hereby is, approved as fair, equitable and
reasonable. The releases of and by non-Debtors under the Plan are fair to
holders of Claims and Interests and are necessary to the proposed
reorganization, and set forth the proper standard of liability, thereby
satisfying the requirements of PWS Holding Corp., 228 F.3d 224, 246 (3d Cir.
2000), In re Continental Airlines, Inc., 203 F.3d 203, 214 (3d Cir.
45
2000), and In re Zenith Electronics Corp., 241 B.R. 92, 110-11 (Bankr. D. Del.
1999). In addition, the releases of and by non-Debtors who voted for the Plan
are voluntary and reasonable given the scope of the releases, and the Debtors'
compliance with Bankruptcy Rule 2002(c)(3). See Zenith, 241 B.R. at 110-11.
27. Compromises and Settlements. All settlements and compromises of
claims and causes of action against non-Debtor entities that are embodied in the
Plan are approved herein as fair, equitable, reasonable and in the best
interests of the Debtors, their Estates and the Reorganized Debtors, and 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, and no person or
entity shall possess such standing to assert such claims or causes of action
after the Consummation Date.
28. Authorization to Consummate Plan. Notwithstanding Rule 3020(e) of
the Federal Rules of Bankruptcy Procedure, this Confirmation Order shall take
effect immediately upon its entry and the Debtors are authorized to consummate
the Plan immediately after entry
46
of this Confirmation Order in accordance with the terms of the Plan.
29. Notice of Entry of Confirmation Order. The Notice of Entry of
Confirmation Order (the "Confirmation Notice"), substantially in the form
attached hereto as Exhibit C, is hereby approved. Within ten (10) business days
after the entry of the this Confirmation Order, the Debtors shall mail or cause
to be mailed by first-class mail a copy of the Confirmation Notice to all of the
Debtors' known creditors and equity interest holders, and all other entities
required to be served under Bankruptcy Rules 2002 and 3017.
30. Within fifteen (15) business days after the entry of this
Confirmation Order, the Debtors shall publish the Confirmation Notice in the
national editions of The Wall Street Journal and The New York Times.
31. Substantially contemporaneously with the service of the
Confirmation Notice, the Debtors shall post the Confirmation Notice to the
Debtors' bankruptcy website located at www.bmccorp.net/chart.
32. The notice procedures set forth in paragraphs 29 through 31 above
constitute good and
47
sufficient notice of the entry of this Confirmation Order, and no other or
further notice shall be necessary.
33. Notice of Consummation of Plan. Within ten (10) business days
following the occurrence of the Consummation Date as provided in Article XI.B of
the Plan, the Reorganized Debtors shall file notice of the occurrence of the
Consummation Date and shall serve a copy of same on the Office of the United
States Trustee and all entities that have requested notice in these cases
pursuant to Bankruptcy Rule 2002. Such notice constitutes good and sufficient
notice of the occurrence of the Consummation Date, and no other or further
notice shall be necessary.
34. Retention of Jurisdiction. Pursuant to sections 105(a) and 1142 of
the Bankruptcy Code, this Court shall retain jurisdiction over all matters
arising out of or related to the chapter 11 cases and the Plan to the fullest
extent permitted by law, including, but not limited to, the matters set forth in
Article XIII of the Plan, except as otherwise provided in the Plan or herein,
and notwithstanding the entry of this Confirmation Order or the occurrence of
the Consummation Date.
48
35. Exemption from Securities Laws. The exemption from the
requirements of section 5 of the Securities Act, and any state or local law
requiring registration for the offer, issuance, exchange or transfer of a
security provided for in the Plan or registration or licensing of an issuer of,
underwriter of or broker dealer in, such security, is authorized by section 1145
of the Bankruptcy Code and shall apply to issuance of the New Securities under
the Plan. The New Securities are exempt from registration under section 1145 of
the Bankruptcy Code and are freely tradable by the holders thereof except to the
extent a holder is an "underwriter" as defined in section 1145(b) of the
Bankruptcy Code.
36. References to Plan Provisions. The failure specifically to include
or reference any particular provision of the Plan in this Confirmation Order
shall not diminish or impair the effectiveness of such provision, it being the
intent of the Court that the Plan be confirmed and approved in its entirety.
37. Reversal. If any or all of the provisions of this Confirmation
Order are hereafter reversed,
49
modification or vacatur shall not affect the modified or vacated by subsequent
order of this Court or any other court, such reversal, 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.
38. Applicable Non-Bankruptcy Law. Pursuant to sections 1123(a) and
1142(a) of the Bankruptcy Code, the provisions of this Confirmation Order, the
Plan and any amendments or modifications thereto shall apply and be enforceable
notwithstanding any otherwise applicable nonbankruptcy law.
39. Reservation of Rights by United States. Notwithstanding any
provision to the contrary in the Plan or this Confirmation Order, confirmation
of the Plan
50
shall not affect the ability of the United States to assert setoff rights under
applicable law.
40. Resolution of HH&P Objection. No provision of the Plan, including
without limitation the inclusion of the term "finders fee arrangements" in
Article I.B.1.83 of the Plan, shall prejudice (or shall preclude or limit) (i)
the rights of HH&P to seek allowance of a Class 4 General Unsecured Claim, if
any, arising under the Alleged HH&P Finders Fee Arrangement, (ii) the rights of
the Debtors, the Reorganized Debtors and any party in interest with standing to
object to or seek disallowance of any proof of Claim or Interest asserted by
HH&P, including without limitation any proof of Claim or Interest filed by HH&P
alleging a right to payment under the Alleged HH&P Finders Fee Arrangement, and
(iii) the right of the Court to determine, allow, disallow or reclassify any
Claim or Interest asserted by HH&P, including without limitation any Claim of
HH&P asserted under the Alleged HH&P Finders Fee Arrangement as a Class 4
General Unsecured Claim. The rights of the Debtors, the Reorganized Debtors and
any party in
51
interest with standing to contend that HH&P rights of payment (if any) under the
Alleged HH&P Finders Fee Arrangement should be classified and treated under the
Plan as Class 9 Other Equity Interests are specifically preserved. In
consideration of this paragraph 40 of this Confirmation Order, HH&P's
Confirmation Objection has been, is and shall be deemed withdrawn by HH&P with
prejudice.
41. In order to preserve and seek allowance of its claims against
and/or interests in the Debtors (if any), HH&P shall file in these chapter 11
cases by October 6, 2003 one or more proofs of claim or interest, or HH&P's
claims against and/or interests in the Debtors (if any) shall be forever barred.
Dated: Wilmington, Delaware
September , 2003
---
/s/ Jerry W. Venters
------------------------------
Honorable Jerry W. Venters
United States Bankruptcy Judge
52
EXHIBIT A
Amended Joint Prepackaged Reorganization Plan of
Chart Industries, Inc. and Certain Subsidiaries
EXHIBIT B
Plan Modifications/1/
- ----------
/1/ Additions to the Joint Prepackaged Reorganization Plan of Chart Industries,
Inc. and Certain Subsidiaries (Docket No. 5) are indicated by double
underlining; deletions are indicated by a strike-through.
EXHIBIT C
Form of Notice of Entry of Confirmation Order
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
- - - - - - - - - - - - - - - - - - x
- - - - - - - - - - - - - - - - - - :
: Chapter 11
:
In re: : Case No. 03-12114 (JWV)
:
CHART INDUSTRIES, INC., et al., : Jointly Administered
:
Debtors. x
- - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - -
NOTICE OF (i) ENTRY OF CONFIRMATION ORDER AND (ii) DEADLINE
FOR FILING REQUESTS FOR COMPENSATION OR REIMBURSEMENT
OF COSTS AND EXPENSES FOR SERVICES RENDERED TO DEBTORS
PLEASE TAKE NOTICE that:
1. On September 3, 2003, the United States Bankruptcy Court for the
District of Delaware (the "Bankruptcy Court") approved the Findings of Fact,
Conclusions of Law, and Order Under 11 U.S.C. (S) 1129(a) and (b) and Fed. R.
Bankr. P. 3020 (I) Confirming Joint Prepackaged Reorganization Plan of Chart
Industries, Inc. and Certain Subsidiaries, (II) Approving Disclosure Statement
and (III) Approving Solicitation Procedures (Docket No. 122) (the "Confirmation
Order"). Unless otherwise defined herein, capitalized terms used herein shall
have the meanings ascribed to such terms in the Amended Joint Prepackaged
Reorganization Plan of Chart Industries, Inc. and Certain Subsidiaries (as may
be amended, modified or supplemented, the "Plan").
2. Pursuant to Article XIV.B of the Plan, all final requests for
compensation or reimbursement of costs and expenses pursuant to sections 327,
328, 330, 331, 503(b) or 1103 of the United States Bankruptcy Code, 11 U.S.C.
(S)(S) 101-1330, for services rendered to the above-captioned debtors and
debtors-in-possession (the "Debtors") prior to the date the Plan is consummated
(all such claims, the "Fee Claims"), must be filed with the Bankruptcy Court,
824 Market Street, Wilmington, Delaware 19801, no later than sixty (60) days
after the date the Plan is consummated (the "Filing Deadline") and served so as
to be received no later than the Filing Deadline by the following parties (the
"Fee Request Parties"): (i) Michael F. Biehl, Chart Industries, Inc., 5885
Landerbrook Drive, Suite 205, Cleveland, Ohio 44124; (ii) Skadden, Arps, Slate,
Meagher & Flom LLP, One Rodney Square, P.O. Box 636, Wilmington, Delaware
19899-0636 (Attn: Mark S. Chehi, Esq. and David R. Hurst, Esq.), counsel to the
Debtors; and (iii) the Office of the United States Trustee, 844 King Street,
Room 2207, Lockbox 35, Wilmington, Delaware 19801 (Attn: Mark S. Kenney, Esq.).
Objections to such requests for compensation or reimbursement of costs and
expenses must be filed and served on the Fee Request Parties and the requesting
entity no later than forty-five (45) days after the date on which the applicable
request for compensation or reimbursement was served. Holders of Fee Claims that
do not file and serve such requests within the time period set forth herein
shall be
forever barred from asserting such claims against the Debtors, the reorganized
Debtors and their respective property, and such Fee Claims shall be deemed
discharged as of the date the Plan is consummated.
3. Any party in interest wishing to obtain a copy of the Plan or
Confirmation Order may request such copies at the Debtors' expense by contacting
Bankruptcy Management Corporation ("BMC"), Attn: Creditor Information Services,
1330 East Franklin Avenue, El Segundo, California 90245 ((888) 909-0100) or IKON
Office Solutions, 901 North Market Street, Suite 310, Wilmington, Delaware 19801
((302) 777-4500). Any party in interest wishing to review the Plan or
Confirmation Order may (a) review such documents during regular business hours
(9:00 a.m. to 4:30 p.m. Eastern time weekdays, except legal holidays) at the
United States Bankruptcy Court for the District of Delaware, Marine Midland
Plaza, 824 Market Street, 3rd Floor, Wilmington, Delaware 19801 or (b) arrange
to review such documents at the offices of counsel to the Debtors (at either of
the addresses set forth below). Finally, parties may obtain a copy of the Plan
or Confirmation Order online through the Debtors' website located at
www.bmccorp.net/chart.
Dated: Wilmington, Delaware
September 12, 2003
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
By: /s/ David R. Hurst
------------------------------------
Mark S. Chehi (I.D. No. 2855)
David R. Hurst (I.D. No. 3743)
One Rodney Square
P.O. Box 636
Wilmington, Delaware 19899-0636
(302) 651-3000
- and -
Alexandra Margolis
Laura Engelhardt
Four Times Square
New York, New York 10036-6552
(212) 735-3000
Counsel to Chart Industries, Inc., et al.,
Debtors and Debtors-in-Possession