EXHIBIT 2.1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
- - - - - - - - - - - - - - - - - - - - - - - - -- - - x
: Chapter 11
: Case No. 03-12114 (JWV)
In re: : (Jointly Administered)
:
Chart Industries, Inc., et al., :
:
Debtors. :
x
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AMENDED JOINT PREPACKAGED REORGANIZATION PLAN
OF CHART INDUSTRIES, INC. AND CERTAIN SUBSIDIARIES
--------------------------------------------------
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
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
CALFEE, HALTER & GRISWOLD LLP
James M. Lawniczak
Matthew J. Klaben
1400 McDonald Investment Center
800 Superior Avenue
Cleveland, Ohio 44114-2688
(216) 622-8200
Special Corporate Counsel to Chart Industries, Inc., et al.,
Debtors and Debtors-in-Possession
Dated: Wilmington, Delaware
September 3, 2003
TABLE OF CONTENTS
Page
----
INTRODUCTION .................................................................................. PLAN-1
ARTICLE I.
DEFINITIONS, RULES OF INTERPRETATION AND COMPUTATION OF TIME................................... PLAN-1
A. Scope of Definitions; Rules of Construction........................................ PLAN-1
B. Definitions........................................................................ PLAN-1
C. Rules of Interpretation............................................................ PLAN-9
1. General...................................................................... PLAN-9
2. "Including"................................................................. PLAN-10
3. "On"........................................................................ PLAN-10
D. Computation of Time.................................................................. PLAN-10
ARTICLE II.
COMPROMISE AND SETTLEMENT OF DISPUTES......................................................... PLAN-10
A. Settlement Between Debtors and Senior Lenders...................................... PLAN-10
B. Compromise and Settlement of Additional Claims..................................... PLAN-11
ARTICLE III.
TREATMENT OF UNCLASSIFIED CLAIMS.............................................................. PLAN-11
A. DIP Facility Claims................................................................ PLAN-12
B. Administrative Claims.............................................................. PLAN-12
C. Priority Tax Claims................................................................ PLAN-12
ARTICLE IV.
CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS.......................................... PLAN-13
A. Introduction....................................................................... PLAN-13
B. Summary of Classified Claims and Interests......................................... PLAN-13
C. Treatment of Classes............................................................... PLAN-14
1. Class 1 - Other Priority Claims............................................ PLAN-14
2. Class 2 - Senior Lender Claims............................................. PLAN-14
3. Class 3 - Other Secured Claims............................................. PLAN-18
4. Class 4 - General Unsecured Claims......................................... PLAN-19
5. Class 5 - Unimpaired Intercompany Claims................................... PLAN-19
6. Class 6 - Impaired Intercompany Claims..................................... PLAN-19
7. Class 7 - Old Chart Common Stock Interests................................. PLAN-20
8. Class 8 - Old Subsidiary Equity Interests.................................. PLAN-20
9. Class 9 - Other Equity Interests........................................... PLAN-20
10. Class 10 - Subordinated Claims............................................. PLAN-20
D. Allowed Claims and Allowed Interests............................................... PLAN-21
E. Postpetition Interest.............................................................. PLAN-21
F. Special Provision Regarding Unimpaired Claims and Interests........................ PLAN-21
PLAN-ii
ARTICLE V.
MEANS FOR IMPLEMENTATION OF THE PLAN.......................................................... PLAN-21
A. Continued Existence and Vesting of Assets in Reorganized Debtors................... PLAN-21
B. Cancellation Of Securities and Agreements.......................................... PLAN-21
C. Restructuring Transactions......................................................... PLAN-22
1. New Common Stock and New Warrants.......................................... PLAN-22
2. New Subsidiary Equity...................................................... PLAN-22
3. New Credit Agreements...................................................... PLAN-24
4. Investor Rights Agreement.................................................. PLAN-25
5. New Warrants............................................................... PLAN-25
D. Directors, Officers and Managers................................................... PLAN-25
E. Preservation of Rights of Action; Settlement of Litigation Claims.................. PLAN-25
F. Effectuating Documents; Further Transactions....................................... PLAN-26
G. Exemption from Certain Transfer Taxes.............................................. PLAN-26
ARTICLE VI.
PROVISIONS GOVERNING DISTRIBUTIONS............................................................ PLAN-26
A. Distributions for Claims and Interests Allowed as of the Consummation Date......... PLAN-26
B. Disbursing Agent................................................................... PLAN-26
C. Surrender of Securities or Instruments............................................. PLAN-27
D. Lost, Stolen, Mutilated or Destroyed Securities.................................... PLAN-27
E. Record Date for Distributions to Holders of Old Chart Common Stock................. PLAN-27
F. Means of Cash Payment.............................................................. PLAN-28
G. Calculation of Distribution Amounts of New Common Stock............................ PLAN-28
H. Delivery of Distributions; Undeliverable or Unclaimed Distributions................ PLAN-28
I. Withholding and Reporting Requirements............................................. PLAN-29
J. Allocation of Plan Distributions Between Principal and Interest.................... PLAN-29
K. Setoffs............................................................................ PLAN-29
ARTICLE VII.
PROCEDURES FOR RESOLVING DISPUTED, CONTINGENT AND UNLIQUIDATED CLAIMS......................... PLAN-29
A. Resolution of Disputed Claims...................................................... PLAN-29
B. No Distribution Pending Allowance.................................................. PLAN-30
C. Distributions After Allowance...................................................... PLAN-30
ARTICLE VIII.
TREATMENT OF CONTRACTS AND LEASES............................................................. PLAN-30
A. Assumed Contracts and Leases....................................................... PLAN-30
B. Treatment of Change of Control Provisions.......................................... PLAN-31
C. Payments Related to Assumption of Contracts and Leases............................. PLAN-31
D. Claims Based on Rejection of Executory Contracts or Unexpired Leases............... PLAN-31
E. Compensation and Benefit Plans and Treatment of Retirement Plan.................... PLAN-31
F. Indemnification of Directors, Officers and Managers................................ PLAN-31
ARTICLE IX.
ACCEPTANCE OR REJECTION OF THE PLAN........................................................... PLAN-32
A. Classes Entitled To Vote........................................................... PLAN-32
B. Acceptance by Impaired Classes..................................................... PLAN-32
C. Cramdown........................................................................... PLAN-32
PLAN-iii
ARTICLE X.
SECURITIES TO BE ISSUED IN CONNECTION WITH THE PLAN........................................... PLAN-32
A. New Securities..................................................................... PLAN-32
B. Exemption from Registration........................................................ PLAN-32
ARTICLE XI.
CONDITIONS PRECEDENT TO THE PLAN'S CONFIRMATION AND CONSUMMATION.............................. PLAN-33
A. Conditions to Confirmation......................................................... PLAN-33
B. Conditions to Consummation Date.................................................... PLAN-33
C. Waiver of Conditions............................................................... PLAN-34
ARTICLE XII.
MODIFICATIONS AND AMENDMENTS.................................................................. PLAN-35
ARTICLE XIII.
RETENTION OF JURISDICTION..................................................................... PLAN-35
ARTICLE XIV.
MISCELLANEOUS PROVISIONS...................................................................... PLAN-36
A. Corporate Action................................................................... PLAN-36
B. Professional Fee Claims............................................................ PLAN-36
C. Payment of Statutory Fees.......................................................... PLAN-37
D. Severability of Plan Provisions.................................................... PLAN-37
E. Consent of Senior Lenders.......................................................... PLAN-37
F. Successors and Assigns............................................................. PLAN-37
G. Discharge of the Debtors........................................................... PLAN-37
H. Releases........................................................................... PLAN-38
1. Releases by Debtors........................................................ PLAN-38
2. Releases by Holders of Claims and Interests................................ PLAN-38
I. Injunction......................................................................... PLAN-38
J. Exculpation and Limitation of Liability............................................ PLAN-39
K. Waiver of Enforcement of Subordination............................................. PLAN-39
L. Term of Injunctions or Stays....................................................... PLAN-39
M. Binding Effect..................................................................... PLAN-40
N. Revocation, Withdrawal or Non-Consummation......................................... PLAN-40
O. Committees......................................................................... PLAN-40
P. Plan Supplement.................................................................... PLAN-40
Q. Notices to Debtors................................................................. PLAN-40
R. Governing Law...................................................................... PLAN-41
S. Prepayment......................................................................... PLAN-41
T. Section 1125(e) of the Bankruptcy Code............................................. PLAN-41
PLAN-iv
TABLE OF EXHIBITS
Exhibit A-1 Reorganized Chart Industries, Inc. Certificate
of Incorporation
Exhibit A-2 Reorganized Chart Industries, Inc. Bylaws
Exhibit B Description of New Common Stock
Exhibit C-1 Form of Amended and Restated Revolving Credit Agreement
Exhibit C-2 Form of New Term Credit Agreement
Exhibit C-3 Form of Collateral Agency and Intercreditor Agreement
Exhibit C-4 Form of Amended and Restated Security Agreement
Exhibit D Form of Investor Rights Agreement
Exhibit E Form of New Warrant Agreement and Warrant Certificate
TABLE OF SCHEDULES
Schedule 1 Non-Exclusive Schedule of Retained Claims and
Causes of Action
Schedule 2 Schedule of Parties Not Released Pursuant to
Article XIV.H
PLAN-v
INTRODUCTION
Chart Industries, Inc., 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. jointly propose
the following joint plan of reorganization under chapter 11 of the Bankruptcy
Code (as defined below).
ARTICLE I.
DEFINITIONS, RULES OF INTERPRETATION
AND COMPUTATION OF TIME
A. Scope of Definitions; Rules of Construction
Except as expressly provided or unless the context otherwise requires,
capitalized terms not otherwise defined in this Plan shall have the meanings
ascribed to them in this Article I. Any term used in the Plan that is not
defined herein, but is defined in the Bankruptcy Code or the Bankruptcy Rules
(as defined below), shall have the meaning ascribed to it therein. Where the
context requires, any definition applies to the plural as well as the singular
number.
B. Definitions
1.1 "Administrative Claim" means a Claim for payment of an
administrative expense of a kind specified in section 503(b) or 1114(e)(2) of
the Bankruptcy Code and entitled to priority under section 507(a)(1) or 507(b)
of the Bankruptcy Code, including, without limitation, (a) the actual, necessary
costs and expenses, incurred after the Petition Date, of preserving the Debtors'
Estates and operating their businesses, including wages, salaries or commissions
for services rendered after the Petition Date, (b) Professional Fee Claims, (c)
all fees and charges assessed against the Estates under 28 U.S.C. ss. 1930 and
(d) all Allowed Claims that are entitled to be treated as Administrative Claims
pursuant to a Final Order entered under section 546(c)(2)(A) of the Bankruptcy
Code.
1.2 "Agent" means JPMorgan Chase Bank, as agent under the Existing
Credit Facilities.
1.3 "Allowed" means, with respect to a Claim or Interest within a
particular Class, an Allowed Claim or Allowed Interest of the type described in
such Class.
1.4 "Allowed Claim" means a Claim (i) as to which no objection or
request for estimation has been filed on or before the Claims Objection Deadline
or the expiration of such other applicable period fixed by the Bankruptcy Court
or the Plan; (ii) as to which any objection has been settled, waived, withdrawn
or denied by a Final Order or in accordance with the Plan; or (iii) that is
allowed (a) by a Final Order, (b) by an agreement between the holder of such
Claim and the Debtors or Reorganized Debtors or (c) pursuant to the terms of the
Plan; provided, however, that, notwithstanding anything herein to the contrary,
by treating a Claim as an "Allowed Claim" under (i) above (the expiration of the
Claims Objection Deadline or other applicable deadline), the Debtors do not
waive their rights to contest the amount and validity of any disputed,
contingent and/or unliquidated Claim in the manner and venue in which such Claim
would have been determined, resolved or adjudicated if the Chapter 11 Case had
not been commenced. An Allowed Claim (i) includes a Disputed Claim to the extent
such Disputed Claim becomes Allowed after the Consummation Date and (ii) shall
be net of any valid setoff exercised with respect to such Claim pursuant to the
provisions of the Bankruptcy Code and applicable law. Unless otherwise specified
herein, in section 506(b) of the Bankruptcy Code or by Final Order of the
Bankruptcy Court, "Allowed Claim" shall not, for purposes of distributions under
the Plan, include (i) for any Claim arising prior to the Petition Date, interest
on such Claim accruing from or after the Petition Date, (ii) punitive or
exemplary damages, (iii) any fine, penalty or forfeiture or (iv) any
Subordinated Claim.
1.5 "Allowed Interest" means an Interest (i) as to which no objection
or request for estimation has been filed on or before the Claims Objection
Deadline or the expiration of such other applicable period fixed by the
Bankruptcy Court or the Plan; (ii) as to which any objection has been settled,
waived, withdrawn or denied by a Final Order or in accordance with the Plan; or
(iii) that is Allowed (a) by a Final Order, (b) by an agreement between the
holder of such Interest and the Debtors or Reorganized Debtors or (c) pursuant
to the terms of the Plan; provided, however, that, notwithstanding anything
herein to
the contrary, by treating an Interest as an "Allowed Interest" under (i) above
(the expiration of the Claims Objection Deadline or other applicable deadline),
the Debtors do not waive their rights to contest the amount and validity of any
disputed, contingent and/or unliquidated Interest in the manner and venue in
which such Interest would have been determined, resolved or adjudicated if the
Chapter 11 Case had not been commenced. An Allowed Interest includes a Disputed
Interest to the extent such Disputed Interest becomes Allowed after the
Consummation Date.
1.6 "Alternative Transaction" has the meaning ascribed to such term
in Article II.A.14.
1.7 "Amended and Restated Revolving Credit Agreement" means that
certain secured credit agreement governing the Revolver Exit Facility to be
entered into as of the Consummation Date, among Reorganized Chart, the
Reorganized Subsidiary Debtors, certain other subsidiaries of Reorganized Chart,
and JPMorgan Chase Bank, as Administrative Agent, and the lenders thereunder,
substantially in the form of Exhibit C-1 hereto.
1.8 "Amended and Restated Security Agreement" means that certain
security agreement to be entered into as of the Consummation Date, among
JPMorgan Chase Bank, as collateral agent, and Reorganized Chart, the Reorganized
Subsidiary Debtors and certain other subsidiaries of Reorganized Chart,
substantially in the form of Exhibit C-4 hereto.
1.9 "Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as
codified in title 11 of the United States Code, 11 U.S.C. ss.ss. 101-1330, as
now in effect or hereafter amended.
1.10 "Bankruptcy Court" means the United States Bankruptcy Court for
the District of Delaware or any other court with jurisdiction over the Chapter
11 Case.
1.11 "Bankruptcy Rules" means, collectively, the Federal Rules of
Bankruptcy Procedure, the Official Bankruptcy Forms, the Federal Rules of Civil
Procedure and the Local Rules of Bankruptcy Practice and Procedure of the United
States Bankruptcy Court for the District of Delaware, as now in effect or
hereafter amended, as applicable to the Chapter 11 Case or proceedings therein,
as the case may be.
1.12 "Business Day" means any day, excluding Saturdays, Sundays or
"legal holidays" (as defined in Bankruptcy Rule 9006(a)), on which commercial
banks are open for business in New York, New York.
1.13 "Cash" means legal tender of the United States or equivalents
thereof.
1.14 "Cause" means (i) the conviction of any crime (whether or not
involving Reorganized Chart) constituting a felony in the jurisdiction involved,
(ii) engaging in any substantiated act involving moral turpitude or (iii)
misappropriation of any assets of Reorganized Chart.
1.15 "Certificate" has the meaning ascribed to such term in Article
VI.C.
1.16 "Chapter 11 Case" means the jointly administered Chapter 11 cases
of Chart Industries, Inc., 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.
1.17 "Chart" means Chart Industries, Inc., a Delaware corporation.
1.18 "Chart Europe" means Chart Europe GmbH, a German company, which is
an indirect subsidiary of Chart and not a Debtor in the Chapter 11 Case.
1.19 "Chart Senior Lender Claim" means, individually, a Claim of the
Agent and any Senior Lender against Chart under the Existing Credit Facilities
and, collectively, the Claims of the Agent and the Senior Lenders against Chart
under the Existing Credit Facilities, including Claims for principal, accrued
but unpaid interest, fees and expenses through the Petition Date.
PLAN-2
1.20 "CHEL" means Chart Heat Exchangers Limited, a United Kingdom
company, which is an indirect subsidiary of Chart and not a Debtor in the
Chapter 11 Case.
1.21 "Claim" means a claim, as defined in section 101(5) of the
Bankruptcy Code, against a Debtor.
1.22 "Claims Objection Deadline" means the first Business Day that is
the latest of (i) the Consummation Date; (ii) as to a particular Claim or
Interest, 180 days after the filing of a proof of claim or interest for, or
request for payment of, such Claim or Interest; or (iii) such other date as may
be established by the Bankruptcy Court.
1.23 "Class" means one of the classes of Claims or Interests listed in
Article IV below.
1.24 "Class 2 New Common Stock" means the 5,059,064 shares of New
Common Stock to be distributed to holders of Senior Lender Claims as of the
Consummation Date, which stock shall be subject to dilution to the extent
necessary to give effect to the issuance of stock, including in connection with
the exercise of any stock options or warrants, including, without limitation,
the New Warrants.
1.25 "Class 7 New Common Stock" means the 266,267 shares of New Common
Stock to be distributed to holders of Old Chart Common Stock Interests as of the
Consummation Date, which stock shall be subject to dilution to the extent
necessary to give effect to the issuance of stock, including in connection with
the exercise of any stock options or warrants, including, without limitation,
the New Warrants.
1.26 "Collateral" means any property or interest in property of an
Estate subject to a lien to secure the payment or performance of a Claim, which
lien is not subject to avoidance under the Bankruptcy Code or otherwise invalid
under the Bankruptcy Code or applicable state law.
1.27 "Collateral Agency and Intercreditor Agreement" means that certain
collateral agency and intercreditor agreement to be entered into as of the
Consummation Date, among JPMorgan Chase Bank, as collateral agent and agent
under the New Credit Agreements, and Reorganized Chart, substantially in the
form of Exhibit C-3 hereto.
1.28 "Committee" means any official committee appointed in the Chapter
11 Case, as such committee may be reconstituted from time to time.
1.29 "Confirmation Date" means the date of entry of the Confirmation
Order on the docket of the Bankruptcy Court.
1.30 "Confirmation Hearing" means the Bankruptcy Court's hearing to
consider confirmation of the Plan, as such hearing may be adjourned or continued
from time to time.
1.31 "Confirmation Order" means the Bankruptcy Court's order confirming
the Plan under section 1129 of the Bankruptcy Code.
1.32 "Consummation Date" means the first Business Day on which all
conditions to the consummation of the Plan set forth in Article XI.B have been
satisfied or waived, which will be the effective date of the Plan.
1.33 "Cure" means the payment of Cash by a Debtor, or the distribution
of other property (as the parties may agree or the Bankruptcy Court may order),
as necessary to cure defaults under an executory contract or unexpired lease of
a Debtor and to permit a Debtor to assume that contract or lease under section
365(a) of the Bankruptcy Code.
1.34 "Current Board Designated Director" has the meaning ascribed to
such term in Article V.D.
1.35 "D&O Claims" means any Claim arising from the Debtors'
indemnification obligations under their constituent documents or other written
agreements and/or pursuant to applicable general corporation law or other
applicable business organization law, including those Claims described in
Article VIII.F.
PLAN-3
1.36 "Debtor" means each of 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. in its
capacity as a debtor and debtor-in-possession under sections 1107 and 1108 of
the Bankruptcy Code, and "Debtors" means all of them collectively, and when the
context so requires, as post-confirmation entities reorganized hereunder.
1.37 "Designee Term" has the meaning ascribed to such term in Article
V.D.
1.38 "DIP Facility" means the postpetition debtor-in-possession
revolving credit facility provided to the Debtors during the Chapter 11 Case
pursuant to the DIP Facility Agreement.
1.39 "DIP Facility Agreement" means the Revolving Credit Agreement,
among Chart Industries, Inc., as debtor and debtor-in-possession, each of the
Subsidiary Debtors, as debtors and debtors-in-possession, JPMorgan Chase Bank,
as Administrative Agent, and the Lenders thereunder, governing the DIP Facility.
1.40 "DIP Facility Claim" means a Claim arising under or as a result of
the DIP Facility, including Claims arising on account of letters of credit
issued prior to the Petition Date under the Existing Credit Facilities.
1.41 "Disallowed Claim" or "Disallowed Interest" means any Claim
against or Interest in any Debtor which has been disallowed, in whole or in
part, by Final Order, to the extent of such disallowance.
1.42 "Disbursing Agent" means Reorganized Chart or any party designated
by Reorganized Chart, in its sole discretion, to serve as disbursing agent under
the Plan.
1.43 "Disclosure Statement" means the written disclosure statement that
relates to the Plan, as amended, supplemented or modified from time to time, and
that is prepared and distributed in accordance with section 1125 of the
Bankruptcy Code and Bankruptcy Rule 3018.
1.44 "Disputed Claim" means any Claim, or any portion thereof, that is
not an Allowed Claim or a Disallowed Claim.
1.45 "Disputed Interest" means any Interest that is not an Allowed
Interest or a Disallowed Interest.
1.46 "Distribution Date" means the date, occurring as soon as
practicable after the Consummation Date, on which the Disbursing Agent first
makes distributions to holders of Allowed Claims and Allowed Interests as
provided in Article VI of the Plan.
1.47 "Distribution Record Date" means the record date for purposes of
making distributions under the Plan on account of or in exchange for Allowed
Claims and Allowed Interests, which date shall be the third (3rd) Business Day
after the Confirmation Date.
1.48 "Estate" means the estate of any of the Debtors in the Chapter 11
Case, and "Estates" means, collectively, the estates of all the Debtors in the
Chapter 11 Case, as created under section 541 of the Bankruptcy Code.
1.49 "Existing Credit Agreement" means (i) the Credit Agreement, dated
as of April 12, 1999, among Chart Industries, Inc., certain subsidiaries of
Chart Industries, Inc., and The Chase Manhattan Bank (n/k/a JPMorgan Chase
Bank), as Administrative Agent, National City Bank, as Documentation Agent, and
the Lenders thereunder, as amended, modified and/or supplemented as of the
Petition Date, (ii) the Security Agreement, Mortgages, Guarantee Assumption
Agreements and Foreign Subsidiary Pledge Agreements (each as defined in the
Credit Agreement dated as of April 12, 1999), and (iii) such other security
agreements, pledge agreements or similar agreements or instruments as were
executed and delivered pursuant to the Credit Agreement dated as of April 12,
1999, and all Uniform Commercial Code financing statements required thereby that
were filed, or other filings and/or registrations that were made or obtained, as
the case may be, with respect to the security interests in personal property,
real property and fixtures created pursuant to any of the foregoing agreements.
PLAN-4
1.50 "Existing Credit Facilities" means the Existing Credit Agreement,
the First Incremental Revolver and the Second Incremental Revolver, and all
other documents and instruments executed in connection therewith evidencing the
rights and security interests of the Senior Lenders.
1.51 "Final Order" means an order or judgment, entered by the
Bankruptcy Court or other court of competent jurisdiction, that has not been
amended, modified or reversed, and as to which (i) no stay is in effect, (ii)
the time to seek rehearing or file a notice of appeal has expired and (iii) no
appeal or request for a stay or other review is pending.
1.52 "First Incremental Revolver" means the Series 1 Incremental
Revolving Credit Agreement, dated as of November 29, 2000, among Chart
Industries, Inc., certain subsidiaries of Chart Industries, Inc., and The Chase
Manhattan Bank (n/k/a JPMorgan Chase Bank), as Administrative Agent, and the
Lenders thereunder, as amended, modified and/or supplemented as of the Petition
Date.
1.53 "General Unsecured Claim" means a Claim that is not a DIP Facility
Claim, Administrative Claim, Priority Tax Claim, Other Priority Claim, Senior
Lender Claim, Other Secured Claim, Unimpaired Intercompany Claim, Impaired
Intercompany Claim or Subordinated Claim.
1.54 "Greenville Employment Agreements" means, collectively, the Salary
Continuation Agreement, dated as of June 17, 2002, by and between Chart Inc. and
Charles E. Downs, the Salary Continuation Agreement, dated as of June 17, 2002,
by and between Chart Inc. and Harry R. Holstead, the Salary Continuation
Agreement, dated as of June 17, 2002, by and between Chart Inc. and Richard L.
Vareha, and the Salary Continuation Agreement, dated as of June 17, 2002, by and
between Chart Inc. and Larry B. McCaslin.
1.55 "Impaired" means, when used with reference to a Claim or Interest,
a Claim or Interest that is impaired within the meaning of section 1124 of the
Bankruptcy Code.
1.56 "Impaired Intercompany Claim" means any and all Claims of CHEL or
Chart Europe against any of the Debtors.
1.57 "Initial Board Designee" has the meaning ascribed to such term in
Article V.D.
1.58 "Interest" means the legal, equitable, contractual and other
rights of any Person (including any 401(k) plan or plan participant) with
respect to Old Chart Common Stock, Old Subsidiary Equity or any Other Equity
Rights of any Debtor, whether or not transferable, and the legal, equitable,
contractual or other rights of any Person to acquire or receive any of the
foregoing.
1.59 "Investor Rights Agreement" means the Investor Rights Agreement
that may be entered into by Reorganized Chart and certain holders of shares of
New Common Stock on and after the Consummation Date, substantially in the form
of Exhibit D hereto.
1.60 "Lender Settlement" has the meaning ascribed to such term in
Article II.A hereof.
1.61 "Litigation Claims" has the meaning ascribed to such term in
Article V.E hereof.
1.62 "Management Incentive Plan" means the management incentive plan to
be adopted by Reorganized Chart after the Consummation Date pursuant to Article
V.C hereof.
1.63 "Manager" means a manager of a limited liability company.
1.64 "New Agent" means JPMorgan Chase Bank, as agent under the DIP
Facility Agreement, the Amended and Restated Revolving Credit Agreement and the
New Term Credit Agreement.
PLAN-5
1.65 "New Common Stock" means the 9,500,000 shares of common stock of
Reorganized Chart, $.01 par value, authorized under Article V.C of the Plan and
the Reorganized Chart Certificate of Incorporation as of the Consummation Date.
1.66 "New Credit Agreements" means the Amended and Restated Revolving
Credit Agreement and the New Term Credit Agreement.
1.67 "New Securities" means, collectively, the New Common Stock, the
New Subsidiary Equity, the New Warrants, and the New Common Stock issuable upon
exercise of the New Warrants.
1.68 "New Subsidiary Equity" means, collectively, the respective shares
of stock, limited and general partnership interests and limited liability
company membership interests in the Reorganized Subsidiary Debtors authorized
under Article V.C of the Plan and the respective constituent documents of the
Reorganized Subsidiary Debtors as of the Consummation Date.
1.69 "New Term Credit Agreement" means that certain secured credit
agreement governing the Term Exit Facility to be entered into as of the
Consummation Date, among Reorganized Chart, the Reorganized Subsidiary Debtors,
certain other subsidiaries of Reorganized Chart, and JPMorgan Chase Bank, as
Administrative Agent, and the Lenders thereunder, substantially in the form of
Exhibit C-2 hereto.
1.70 "New Warrant Agreement" means that certain warrant agreement,
which together with the related warrant certificates, will evidence the New
Warrants, to be entered into as of the Consummation Date, between Reorganized
Chart and the warrant agent thereunder, substantially in the form of Exhibit E
hereto.
1.71 "New Warrants" means the warrants to acquire, in the aggregate for
all of the New Warrants, 280,281 shares of New Common Stock (subject to
adjustment under the anti-dilution provisions of the New Warrants), as
authorized under Article V.C of the Plan, and to be issued to holders of Old
Chart Common Stock Interests pursuant to the Plan as of the Consummation Date,
evidenced by the New Warrant Agreement and related warrant certificates,
substantially in the form of Exhibit E hereto, with an exercise price per share
equal to (i) the difference between (x) $280 million and (y) the aggregate
amount of net debt (i.e., debt less cash) and capitalized lease obligations of
Chart and its direct and indirect subsidiaries outstanding immediately after the
Consummation Date, divided by (ii) 5,325,331.
1.72 "Old Chart Common Stock" means the shares of common stock of Chart
issued and outstanding on the Distribution Record Date.
1.73 "Old Chart Common Stock Interests" means the Interests represented
by the Old Chart Common Stock.
1.74 "Old Chart Common Stock Options" means the options to purchase or
acquire common stock of Chart, which options are outstanding immediately prior
to the Distribution Record Date, and all rights associated therewith.
1.75 "Old Chart Common Stock Purchase Rights" means those stock
purchase rights, and all rights associated therewith, governed by the Rights
Agreement, dated as of May 1, 1998, by and between Chart Industries, Inc. and
National City Bank, as Rights Agent, as amended.
1.76 "Old Chart Common Stock Warrants" means those certain warrants,
and all rights associated therewith, evidenced by the Warrant Agreements dated
as of June 28, 2002, September 30, 2002 and December 31, 2002, between Chart and
the holders party thereto.
1.77 "Old Cryenco Warrants" means those certain warrants to purchase
common stock of Chart issued to certain holders of warrants for Cryenco
Sciences, Inc. common stock in connection with Chart's acquisition of Cryenco
Sciences, Inc. in 1997, and all rights associated therewith.
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1.78 "Old MVE Warrant Rights" means those certain rights to acquire,
under certain conditions, warrants to purchase 1 million shares of common stock
of Chart at any time prior to April 12, 2004, issued to former members of MVE
Investors, LLC in connection with Chart's acquisition of MVE Holdings, Inc., and
all rights associated therewith.
1.79 "Old Subsidiary Equity" means, collectively, the respective shares
of stock, limited and general partnership interests and limited liability
company membership interests in the Subsidiary Debtors issued and outstanding as
of the Distribution Record Date.
1.80 "Old Subsidiary Equity Interests" means the Interests represented
by the Old Subsidiary Equity.
1.81 "Other Equity Interests" means the Interests represented by the
Other Equity Rights.
1.82 "Other Equity Rights" means, collectively, the Old Chart Common
Stock Purchase Rights, the Old Chart Common Stock Options, the Old Chart Common
Stock Warrants, the Old Cryenco Warrants, the Old MVE Warrant Rights, rights
under any Stock-Related Benefit Plan, and any other options, warrants,
conversion rights, rights of first refusal, finders fee arrangements, or other
rights, contractual or otherwise, to acquire, subscribe for, receive or cause to
be redeemed any common stock of Chart, stock, limited or general partnership
interests or limited liability company membership interests in any Subsidiary
Debtor, or other ownership interests in any Debtor, and any contracts,
subscriptions, commitments or agreements pursuant to which any non-Debtor party
was or could have been entitled to receive or cause to be redeemed shares,
securities or other ownership interests in any Debtor.
1.83 "Other Priority Claim" means a Claim entitled to priority under
section 507(a) of the Bankruptcy Code other than a DIP Facility Claim,
Administrative Claim or Priority Tax Claim.
1.84 "Other Secured Claim" means a Claim other than a Senior Lender
Claim that is secured by a valid duly perfected lien as of the Petition Date on
property in which any of the Estates has an interest or that is subject to
setoff under section 553 of the Bankruptcy Code, to the extent of the value of
the Claim holder's interest in the Estate's interest in such property or to the
extent of the amount subject to setoff, as applicable, as determined pursuant to
section 506(a) of the Bankruptcy Code or, in the case of setoff, pursuant to
section 553 of the Bankruptcy Code.
1.85 "Person" means an individual, corporation, partnership, joint
venture, association, joint stock company, limited liability company, limited
liability partnership, trust, estate, unincorporated organization or other
entity.
1.86 "Petition Date" means the date on which the Debtors file their
petitions for relief commencing the Chapter 11 Case.
1.87 "Plan" means this joint prepackaged plan of reorganization, and
all exhibits and schedules hereto, as it may be amended, modified or
supplemented from time to time as permitted hereunder and by the Bankruptcy
Code.
1.88 "Plan Supplement" means the compilation of documents, including
any exhibits to the Plan not included herewith, that the Debtors shall file with
the Bankruptcy Court on or before the date that is five (5) days prior to the
Confirmation Hearing.
1.89 "Postpetition Interest" means interest accruing after the Petition
Date on a Claim.
1.90 "Priority Tax Claim" means a Claim that is entitled to priority
under section 507(a)(8) of the Bankruptcy Code.
1.91 "Professional" means any professional employed in the Chapter 11
Case pursuant to section 327 or 1103 of the Bankruptcy Code.
1.92 "Professional Fee Claim" means a Claim of a Professional for
compensation or reimbursement of costs and expenses relating to services
incurred after the Petition Date and prior to and including the Consummation
Date.
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1.93 "Pro Rata" means with reference to any distribution on account of
or in exchange for any Claim or Interest in any Class, the proportion that the
amount of a Claim or Interest bears to the aggregate amount of all Claims
(including Disputed Claims, but excluding Disallowed Claims) or Interests
(including Disputed Interests, but excluding Disallowed Interests) in such
Class.
1.94 "Reinstate," "Reinstated" or "Reinstatement" means (i) leaving
unaltered the legal, equitable and contractual rights to which a Claim or
Interest entitles the holder of such Claim or Interest so as to leave such Claim
or Interest unimpaired in accordance with section 1124 of the Bankruptcy Code or
(ii) notwithstanding any contractual provision or applicable law that entitles
the holder of such Claim or Interest to demand or receive accelerated payment of
such Claim or Interest after the occurrence of a default, (a) curing any such
default that occurred before or after the Petition Date, other than a default of
a kind specified in section 365(b)(2) of the Bankruptcy Code; (b) reinstating
the maturity of such Claim or Interest as such maturity existed before such
default; (c) compensating the holder of such Claim or Interest for any damages
incurred as a result of any reasonable reliance by such holder on such
contractual provision or such applicable law; and (d) not otherwise altering the
legal, equitable or contractual rights to which such Claim or Interest entitles
the holder of such Claim or Interest; provided, however, that any contractual
right that does not pertain to the payment when due of principal and interest on
the obligation on which such Claim or Interest is based, including, but not
limited to, financial covenant ratios, negative pledge covenants, covenants or
restrictions on merger or consolidation, and affirmative covenants regarding
corporate existence, prohibiting certain transactions or actions contemplated by
the Plan, or conditioning such transactions or actions on certain factors, shall
not be required to be reinstated in order to accomplish Reinstatement.
1.95 "Reorganized ______," where ______ is the name of a Debtor, means
such Debtor, on and after the Consummation Date.
1.96 "Reorganized Chart Bylaws" means Reorganized Chart's bylaws in
effect under the laws of the State of Delaware, as amended by the Plan,
substantially in the form annexed hereto as Exhibit A-2.
1.97 "Reorganized Chart Certificate of Incorporation" means Reorganized
Chart's certificate of incorporation in effect under the laws of the State of
Delaware, as amended by the Plan, substantially in the form annexed hereto as
Exhibit A-1.
1.98 "Reorganized Debtor" means each of Reorganized Chart, Reorganized
CAIRE INC., Reorganized Chart Asia, Inc., Reorganized Chart Heat Exchangers
Limited Partnership, Reorganized Chart Inc., Reorganized Chart International
Holdings, Inc., Reorganized Chart International, Inc., Reorganized Chart
Leasing, Inc., Reorganized Chart Management Company, Inc., Reorganized CoolTel,
Inc., Reorganized GTC of Clarksville, LLC and Reorganized NexGen Fueling, Inc.;
and "Reorganized Debtors" means all of them.
1.99 "Reorganized Subsidiary Debtors" means the Subsidiary Debtors, on
and after the Consummation Date.
1.100 "Revolver Exit Facility" means that certain revolver exit credit
facility in the aggregate amount of $40 million to be provided to the
Reorganized Debtors on the Consummation Date, governed by the Amended and
Restated Revolving Credit Agreement.
1.101 "Second Incremental Revolver" means the Series 2 Incremental
Revolving Credit Agreement, dated as of April 17, 2001, among Chart Industries,
Inc., certain subsidiaries of Chart Industries, Inc., and The Chase Manhattan
Bank (n/k/a JPMorgan Chase Bank), as Administrative Agent, and the Lenders
thereunder, as amended, modified and/or supplemented as of the Petition Date.
1.102 "Secondary Board Designee" has the meaning ascribed to such term
in Article V.D.
1.103 "Securities Act" means the Securities Act of 1933, 15
U.S.C.ss.ss.77a-77aa, as now in effect or hereafter amended.
PLAN-8
1.104 "Senior Lender Claims" means, collectively, the Chart Senior
Lender Claims and the Claims of the Senior Lenders against the Subsidiary
Debtors arising on account of the Subsidiary Debtors' guaranty obligations under
the Existing Credit Facilities.
1.105 "Senior Lender Steering Committee" means the unofficial committee
formed prior to the Petition Date, which committee is comprised of the Agent,
Oaktree Capital Management, LLC, Audax Management Company, LLC and Carl Marks
Strategic Investments, LP; provided, however, that any such entity shall be
considered a member of the Senior Lender Steering Committee only to the extent
that such entity is a Senior Lender on or prior to the Confirmation Date.
1.106 "Senior Lenders" means the Agent and the entities identified as
"Lenders" under the Existing Credit Facilities and their respective successors
and assigns who have become "Lenders" under the Existing Credit Facilities.
1.107 "Solicitation Order" means a Final Order of the Bankruptcy Court
or other court of competent jurisdiction providing that Class 7 is deemed to
have rejected the Plan and is not entitled to vote on the Plan.
1.108 "Stock-Related Benefit Plans" means, collectively, the 1996 Stock
Option Plan for Outside Directors and similar plans authorized in 1994 and 1995,
the Key Employee Stock Option Plan, the 1997 Stock Option and Incentive Plan,
the 1997 Stock Bonus Plan and the 2000 Executive Incentive Stock Option Plan of
Chart, as amended, and any award agreements thereunder.
1.109 "Subordinated Claims" means any Claim that is subordinated
pursuant to section 510(b) or 510(c) of the Bankruptcy Code, and shall include
any Claim arising from the rescission or right of rescission of a purchase or
sale of a security or Interest of any Debtor or of an affiliate of any Debtor,
for damages arising from the purchase or sale of such a security or Interest or
for reimbursement or contribution on account of such Claim; provided, however,
that the D&O Claims shall not be Subordinated Claims.
1.110 "Subsidiary Debtor" means each of 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.;
and "Subsidiary Debtors" means all of them collectively, and when the context so
requires, as post-confirmation entities reorganized hereunder.
1.111 "Term Exit Facility" means that certain term loan credit facility
in the aggregate amount of $120 million to be provided to the Reorganized
Debtors on the Consummation Date, governed by the New Term Credit Agreement.
1.112 "Unimpaired" means with reference to a Claim or Interest, a Claim
or Interest that is not impaired within the meaning of section 1124 of the
Bankruptcy Code.
1.113 "Unimpaired Intercompany Claim" means any and all Claims of Chart
and any direct or indirect subsidiary of Chart against any Debtor, excluding
Impaired Intercompany Claims.
C. Rules of Interpretation
1. General
In the Plan (a) any reference to a contract, instrument, release,
indenture or other agreement or document as being in a particular form or on
particular terms and conditions means the agreement or document substantially in
that form or on those terms and conditions, (b) any reference to an existing
document or exhibit means that document or exhibit as it may have been or may be
amended, modified or supplemented, (c) unless otherwise specified, all
references to Sections, Articles, Schedules and Exhibits are references to
Sections, Articles, Schedules and Exhibits of or to the Plan, (d) the words
"herein" and "hereto" refer to the Plan in its entirety rather than to a
particular portion of the Plan, (e) captions and headings to Articles and
Sections are for convenience of reference only and are not intended to be a part
of or to affect the interpretation of the Plan and (f) the rules of construction
in section 102 of the Bankruptcy Code and in the Bankruptcy Rules shall apply.
PLAN-9
2. "Including"
As used in the Plan, "including" means "including without limitation."
3. "On"
With reference to any distribution under the Plan, "on" a date means on
or as soon as reasonably practicable after that date.
D. Computation of Time
In computing any period of time prescribed or allowed by the Plan, the
provisions of Bankruptcy Rule 9006(a) shall apply.
ARTICLE II.
COMPROMISE AND SETTLEMENT OF DISPUTES
A. Settlement Between Debtors and Senior Lenders
The Plan implements a compromise and settlement with respect to the
Senior Lender Claims, the Old Chart Common Stock Interests and the Old
Subsidiary Equity Interests (the "Lender Settlement"). Pursuant to Bankruptcy
Rule 9019 and section 1123(b)(3) of the Bankruptcy Code, the Plan shall
constitute a motion for approval of, and the Confirmation Order shall authorize
and constitute Bankruptcy Court approval of, the Lender Settlement.
On the Consummation Date, pursuant to Bankruptcy Rule 9019 and section
1123(b)(3) of the Bankruptcy Code, in full and final satisfaction of the Senior
Lender Claims, and for good and valuable consideration including the Senior
Lenders' agreement to the treatment specified in the Plan for the Senior Lender
Claims and the Claims and Interests asserted by other parties in interest, the
Lender Settlement shall be effectuated in accordance with the following terms:
1. The Senior Lender Claims shall be deemed Allowed by the Confirmation
Order as undisputed, noncontingent and liquidated in the aggregate amount of
$261,972,430.03 (as of June 18, 2003, as such amount may be increased or
decreased based on additional borrowings or principal payments, or increased by
the amount of interest accrued but unpaid as of the Petition Date).
2. The Debtors' indebtedness under the Existing Credit Facilities
represented by the Senior Lender Claims shall be restructured into indebtedness
under the New Term Credit Agreement in the aggregate amount of $120 million,
pursuant to Article IV.C.2 of the Plan.
3. The Senior Lenders shall receive 5,059,064 shares of the New Common
Stock of Reorganized Chart, pursuant to Article IV.C.2 of the Plan.
4. The holders of Old Chart Common Stock shall receive (i) 266,267
shares of the New Common Stock of Reorganized Chart plus (ii) New Warrants
exercisable to acquire an additional 280,281 shares of New Common Stock of
Reorganized Chart (subject to adjustment under the anti-dilution provisions of
the New Warrants), pursuant to Article IV.C.7 of the Plan.
5. Certain of the Senior Lenders shall provide debtor-in-possession
financing under the DIP Facility during the Chapter 11 Case and, upon
consummation of the Plan, certain of the Senior Lenders shall provide revolving
credit loans to the Reorganized Debtors under the Amended and Restated Revolving
Credit Agreement, pursuant to Article III.A of the Plan.
6. Allowed General Unsecured Claims shall be treated under the Plan as
Unimpaired Claims, pursuant to Article IV.C.4 of the Plan.
PLAN-10
7. Unimpaired Intercompany Claims shall be treated under the Plan as
Unimpaired Claims, and Impaired Intercompany Claims shall not receive or retain
any property under the Plan on account of such Claims, pursuant to Articles
IV.C.5 and 6 of the Plan.
8. The Debtors shall release the Senior Lenders (in such capacity) and
the Debtors' current and former officers, directors, Managers and professionals,
pursuant to Article XIV.H of the Plan.
9. The Senior Lenders and the current members of Chart's board of
directors shall exchange mutual releases.
10. The Debtors shall assume their indemnification obligations to and
employment agreements with their directors, officers and Managers, pursuant to
Articles VIII.E and F of the Plan.
11. The Debtors shall pay the reasonable expenses of the Senior Lender
Steering Committee, including attorneys and other professional fees, incurred
through the Consummation Date in connection with the negotiation and
consummation of the Plan and the Chapter 11 Case, the DIP Facility and the New
Credit Agreements, provided that such expenses have been approved by the Agent,
pursuant to Articles III.B and IV.C.2 of the Plan.
12. Old Subsidiary Equity shall be deemed cancelled and the respective
new common stock, limited partnership interests, general partnership interests
and limited liability company membership interests in the Reorganized Subsidiary
Debtors shall be distributed so as to maintain the organizational structure of
the Debtors substantially as such structure existed on the Petition Date,
pursuant to Article V.C.2 of the Plan.
13. Old Chart Common Stock and Other Equity Rights shall be deemed
cancelled, pursuant to Articles IV.C.7 and 9 of the Plan.
14. The board of directors of Chart may solicit, consider and negotiate
alternative transactions with third parties at any time prior to the
Confirmation Date and may terminate the Lender Settlement at any time prior to
the Confirmation Date in order to enter into any alternative transaction if the
board of directors of Chart determines in its business judgment that such
alternative transaction: (i) is fully committed with available financing, and
contains no material contingencies other than Bankruptcy Court and necessary
regulatory approvals; (ii) is more favorable to Chart's creditors and
shareholders from a financial point of view than the transactions contemplated
by the Lender Settlement; and (iii) provides for payment of the Senior Lender
Claims on terms acceptable to the Senior Lenders in the sole discretion of the
Senior Lenders (any such alternative transaction, an "Alternative Transaction").
B. Compromise and Settlement of Additional Claims
Pursuant to Bankruptcy Rule 9019(a), and with the consent of the Agent
and the Senior Lenders, the Debtors may compromise and settle various Claims
against them and/or claims they may have against other Persons. The Debtors
expressly reserve the right (with Bankruptcy Court approval, following
appropriate notice and opportunity for a hearing) to compromise and settle
Claims against them and claims that they may have against other Persons up to
and including the Consummation Date. After the Consummation Date, such right
shall pass to the Reorganized Debtors pursuant to Articles V.A and V.E hereof.
ARTICLE III.
TREATMENT OF UNCLASSIFIED CLAIMS
In accordance with section 1123(a)(1) of the Bankruptcy Code, DIP
Facility Claims, Administrative Claims and Priority Tax Claims are not
classified and holders of such Claims are not entitled to vote on the Plan.
PLAN-11
A. DIP Facility Claims
On the Consummation Date, (i) the DIP Facility Agreement will be deemed
to be automatically amended and restated as the Amended and Restated Revolving
Credit Agreement; (ii) Reorganized Chart and each lender under the Amended and
Restated Revolving Credit Agreement (which may include entities different from
the lenders under the DIP Facility Agreement) shall execute and deliver the
Amended and Restated Revolving Credit Agreement, and all parties shall be bound
by the Amended and Restated Revolving Credit Agreement and related documents and
shall have the rights and obligations set forth therein; (iii) all indebtedness
under the DIP Facility Agreement (except the obligation to pay fees as provided
therein which shall be paid in full on the Consummation Date) will become
indebtedness under the Amended and Restated Revolving Credit Agreement and shall
be subject to the terms thereof; (iv) if requested by any of the lenders under
the Amended and Restated Revolving Credit Agreement, Reorganized Chart will
execute and deliver a promissory note to each such lender evidencing the
revolving loan obligation of Reorganized Chart under the Amended and Restated
Revolving Credit Agreement and related documents; (v) Reorganized Chart and the
Reorganized Subsidiary Debtors will enter into and execute such documents,
instruments and agreements reasonably requested by the New Agent to confirm,
affirm or grant to the New Agent for the ratable benefit of the lenders under
the Amended and Restated Revolving Credit Agreement a duly perfected first
priority lien on and security interest in all of the assets of Reorganized Chart
and the other Reorganized Debtors owned on the Consummation Date or thereafter
acquired (real, personal or mixed) subject only to liens securing Other Secured
Claims and other permitted liens as provided in the Amended and Restated
Revolving Credit Agreement; (vi) each of the Reorganized Subsidiary Debtors
shall enter into and execute the Amended and Restated Revolving Credit Agreement
as a guarantor of Reorganized Chart's obligations thereunder, and execute such
other documents, instruments and agreements reasonably requested by the New
Agent to confirm, affirm or grant to the lenders under the Amended and Restated
Revolving Credit Agreement a guaranty by each of the Reorganized Subsidiary
Debtors of the indebtedness of Reorganized Chart under the Amended and Restated
Revolving Credit Agreement and related documents; and (vii) Reorganized Chart
and the Reorganized Subsidiary Debtors will enter into and execute such other
documents, instruments and agreements as shall be reasonably requested by the
New Agent pursuant to the terms of the Amended and Restated Revolving Credit
Agreement and related documents.
B. Administrative Claims
Each holder of an Allowed Administrative Claim shall receive, in full
satisfaction, settlement, release and discharge of and in exchange for such
Allowed Administrative Claim, on the latest of (i) the Distribution Date, (ii)
the date on which its Administrative Claim becomes an Allowed Administrative
Claim or (iii) the date on which its Administrative Claim becomes payable under
any agreement relating thereto, Cash equal to the unpaid portion of its Allowed
Administrative Claim. Notwithstanding the foregoing, (a) any Allowed
Administrative Claim based on a liability incurred by a Debtor in the ordinary
course of business during the Chapter 11 Case shall be paid in the ordinary
course of business, in accordance with the terms and conditions of any agreement
relating thereto; and (b) any Allowed Administrative Claim may be paid on such
other less favorable terms as may be agreed on between the holder of such Claim
and the Debtors. On or as soon as practicable after the Consummation Date,
Reorganized Chart shall pay in Cash, in full, the reasonable expenses of the
Senior Lender Steering Committee, including attorneys and other professional
fees, incurred from the Petition Date through the Consummation Date in
connection with the negotiation and consummation of the Plan and the Chapter 11
Case, the DIP Facility and the New Credit Agreements, provided that such
expenses have been approved by the Agent.
C. Priority Tax Claims
The legal and equitable rights of the holders of Priority Tax Claims
are Unimpaired by the Plan. On, or as soon as reasonably practicable after, (i)
the Distribution Date if such Priority Tax Claim is an Allowed Priority Tax
Claim as of the Consummation Date or (ii) the date on which such Priority Tax
Claim becomes an Allowed Priority Tax Claim, each holder of an Allowed Priority
Tax Claim shall receive in full satisfaction, settlement and release of and in
exchange for such Allowed Priority Tax Claim at the election of the Debtors: (a)
Cash equal to the unpaid portion of such Allowed Priority Tax Claim; (b) such
other treatment as to which the Debtors or the Reorganized Debtors and the
holder of such Allowed Priority Tax Claim shall have agreed upon in writing; or
(c) such other treatment required to Reinstate such Allowed Priority Tax Claim;
provided, however, that the Debtors reserve the right to pay any Allowed
Priority Tax Claim, or any remaining balance of any Allowed Priority Tax Claim,
in full at any time on or after the Distribution Date without premium or
penalty; provided, further, that no holder of an Allowed Priority Tax Claim
shall be entitled to any payments on account of interest accruing or
PLAN-12
penalty arising after the Petition Date with respect to or in connection with
such Allowed Priority Tax Claim; provided, further, that any Allowed Priority
Tax Claim not due and owing as of the Consummation Date will be paid when such
Claim becomes due and payable.
ARTICLE IV.
CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS
A. Introduction
The Plan places all Claims and Interests, except Unclassified Claims
provided for in Article III, in the Classes listed below. The Plan does not
provide for substantive consolidation of the Debtors' Estates. A Claim or
Interest is placed in a particular Class only to the extent that it falls within
the description of that Class, and is classified in other Classes to the extent
that any portion thereof falls within the description of other Classes.
B. Summary of Classified Claims and Interests
Class Impaired/Unimpaired; Entitlement to Vote
Class 1 - Other Priority Claims Unimpaired - Deemed to have accepted the Plan and not
entitled to vote
Class 2 - Senior Lender Claims Impaired - Entitled to vote
Class 3 - Other Secured Claims Unimpaired - Deemed to have accepted the Plan and not
entitled to vote
Class 4 - General Unsecured Claims Unimpaired - Deemed to have accepted the Plan and not
entitled to vote
Class 5 - Unimpaired Intercompany Claims Unimpaired - Deemed to have accepted the Plan and not
entitled to vote
Class 6 - Impaired Intercompany Claims Impaired - Deemed to have rejected the Plan and not
entitled to vote
Class 7 - Old Chart Common Stock Interests Impaired - If the Bankruptcy Court enters the Solicitation
Order, Class 7 will be deemed to have rejected the Plan
and, therefore, not be entitled to vote
Class 8 - Old Subsidiary Equity Interests Impaired - Deemed to have rejected the Plan and not
entitled to vote
Class 9 - Other Equity Interests Impaired - Deemed to have rejected the Plan and not
entitled to vote
Class 10 - Subordinated Claims Impaired - Deemed to have rejected the Plan and not
entitled to vote
PLAN-13
C. Treatment of Classes
Pursuant to the terms of the Lender Settlement, each of the holders of
Claims and Interests in Classes 1 through 10 will receive the treatment
described below.
1. Class 1 - Other Priority Claims
a. Claims in Class: Class 1 consists of all Other Priority
Claims against all Debtors.
b. Treatment: The legal, equitable and contractual rights
of the holders of Other Priority Claims are Unimpaired by the Plan. On, or as
soon as reasonably practicable after, (i) the Distribution Date if such Other
Priority Claim is an Allowed Other Priority Claim on the Consummation Date or
(ii) the date on which such Other Priority Claim becomes an Allowed Other
Priority Claim, each holder of an Allowed Other Priority Claim shall receive in
full satisfaction, settlement of and in exchange for, such Allowed Other
Priority Claim, at the election of the Debtors: (a) to the extent due and owing
on the Consummation Date, Cash in the amount of such Allowed Other Priority
Claim in accordance with the terms of the underlying obligation; (b) to the
extent not due and owing on the Consummation Date, Cash in the amount of such
Allowed Other Priority Claim payable when and as such Claim becomes due and
owing in the ordinary course of business in accordance with the terms of the
underlying obligation; (c) such other treatment as to which the holder of such
Claim and the Debtors or Reorganized Debtors agree in writing; or (d) such other
treatment required to Reinstate such Other Priority Claim.
2. Class 2 - Senior Lender Claims
Class 2 consists of the following twelve sub-Classes of Senior Lender
Claims. Each sub-Class is a separate Class for all purposes under the Bankruptcy
Code and the Plan, including for voting purposes. The Senior Lender Claims in
each of Classes 2.1 through 2.12 shall be deemed Allowed by the Confirmation
Order as undisputed, noncontingent and liquidated in the aggregate amount of
$261,972,430.03 (as of June 18, 2003, as such amount may be increased or
decreased based on additional borrowings or principal payments, or increased by
the amount of interest accrued but unpaid as of the Petition Date).
Class 2.1. - Chart Senior Lender Claims
a. Claims in Class: Class 2.1 consists of all Chart
Senior Lender Claims. The Chart Senior Lender Claims are secured by enforceable
first priority liens and security interests granted by Chart upon and in
substantially all of Chart's assets and property of any kind including all
proceeds thereof.
b. Treatment: On the Consummation Date, (i) all
indebtedness under the Existing Credit Facilities
will be restructured into indebtedness under the New Term Credit Agreement and
Reorganized Chart and each holder of an Allowed Claim in Class 2.1 shall execute
and deliver the New Term Credit Agreement and related documents; (ii) if
requested by any of the lenders under the New Term Credit Agreement, Reorganized
Chart will execute and deliver a promissory note to each such lender evidencing
the term loan obligation of Reorganized Chart under the New Term Credit
Agreement and related documents; (iii) Reorganized Chart will enter into and
execute such documents, instruments and agreements reasonably requested by the
New Agent to confirm, affirm or grant to the New Agent for the ratable benefit
of the lenders under the New Term Credit Agreement a duly perfected second
priority lien on and security interest in all of the assets of Reorganized Chart
owned on the Consummation Date or thereafter acquired (real, personal or mixed)
subject only to liens securing Other Secured Claims and other permitted liens as
provided in the New Term Credit Agreement; (iv) Reorganized Chart will enter
into and execute such other documents, instruments and agreements as shall be
reasonably requested by the New Agent pursuant to the terms of the New Term
Credit Agreement and related documents, including the Collateral Agency and
Intercreditor Agreement and the Amended and Restated Security Agreement; (v)
each holder of an Allowed Claim in Class 2.1 shall receive its Pro Rata share of
Class 2 New Common Stock; and (vi) Reorganized Chart shall pay in Cash, in full,
the reasonable expenses of the Senior Lender Steering Committee, including
attorneys and other professional fees, incurred prior to the Petition Date in
connection with the negotiation and consummation of the Plan and the Chapter 11
Case, the DIP Facility and the New Credit Agreements, provided that such
expenses have been approved by the Agent.
PLAN-14
Class 2.2. - CAIRE INC. Guaranty Claims
a. Claims in Class: Class 2.2 consists of all claims
arising on account of the guaranty obligations of CAIRE INC. under the Existing
Credit Facilities.
b. Treatment: On the Consummation Date, Reorganized CAIRE
INC. shall enter into and execute (i) the New Term Credit Agreement, as a
guarantor of Reorganized Chart's obligations thereunder, and execute such other
documents, instruments and agreements reasonably requested by the New Agent to
confirm, affirm or grant to the lenders under the New Term Credit Agreement a
guaranty by Reorganized CAIRE INC. of the indebtedness of Reorganized Chart
under the New Term Credit Agreement and related documents; (ii) such documents,
instruments and agreements reasonably requested by the New Agent to confirm,
affirm or grant to the New Agent for the ratable benefit of the lenders under
the New Term Credit Agreement a duly perfected second priority lien on and
security interest in all of the assets of Reorganized CAIRE INC. owned on the
Consummation Date or thereafter acquired (real, personal or mixed) subject only
to liens securing Other Secured Claims and other permitted liens as provided in
the New Term Credit Agreement; and (iii) such other related documents,
instruments and agreements as shall be reasonably requested by the New Agent
pursuant to the terms of the New Term Credit Agreement and related documents,
including the Amended and Restated Security Agreement.
Class 2.3. - Chart Asia, Inc. Guaranty Claims
a. Claims in Class: Class 2.3 consists of all claims
arising on account of the guaranty obligations of Chart Asia, Inc. under the
Existing Credit Facilities.
b. Treatment: On the Consummation Date, Reorganized Chart
Asia, Inc. shall enter into and execute (i) the New Term Credit Agreement, as a
guarantor of Reorganized Chart's obligations thereunder, and execute such other
documents, instruments and agreements reasonably requested by the New Agent to
confirm, affirm or grant to the lenders under the New Term Credit Agreement a
guaranty by Reorganized Chart Asia, Inc. of the indebtedness of Reorganized
Chart under the New Term Credit Agreement and related documents; (ii) such
documents, instruments and agreements reasonably requested by the New Agent to
confirm, affirm or grant to the New Agent for the ratable benefit of the lenders
under the New Term Credit Agreement a duly perfected second priority lien on and
security interest in all of the assets of Reorganized Chart Asia, Inc. owned on
the Consummation Date or thereafter acquired (real, personal or mixed) subject
only to liens securing Other Secured Claims and other permitted liens as
provided in the New Term Credit Agreement; and (iii) such other related
documents, instruments and agreements as shall be reasonably requested by the
New Agent pursuant to the terms of the New Term Credit Agreement and related
documents, including the Amended and Restated Security Agreement.
Class 2.4. - Chart Heat Exchangers Limited Partnership
Guaranty Claims
a. Claims in Class: Class 2.4 consists of all claims
arising on account of the guaranty obligations of Chart Heat Exchangers Limited
Partnership under the Existing Credit Facilities.
b. Treatment: On the Consummation Date, Reorganized Chart
Heat Exchangers Limited Partnership shall enter into and execute (i) the New
Term Credit Agreement, as a guarantor of Reorganized Chart's obligations
thereunder, and execute such other documents, instruments and agreements
reasonably requested by the New Agent to confirm, affirm or grant to the lenders
under the New Term Credit Agreement a guaranty by Reorganized Chart Heat
Exchangers Limited Partnership of the indebtedness of Reorganized Chart under
the New Term Credit Agreement and related documents; (ii) such documents,
instruments and agreements reasonably requested by the New Agent to confirm,
affirm or grant to the New Agent for the ratable benefit of the lenders under
the New Term Credit Agreement a duly perfected second priority lien on and
security interest in all of the assets of Reorganized Chart Heat Exchangers
Limited Partnership owned on the Consummation Date or thereafter acquired (real,
personal or mixed) subject only to liens securing Other Secured Claims and other
permitted liens as provided in the New Term Credit Agreement; and (iii) such
other related documents, instruments and agreements as shall be reasonably
requested by the New Agent pursuant to the terms of the New Term Credit
Agreement and related documents, including the Amended and Restated Security
Agreement.
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Class 2.5. - Chart Inc. Guaranty Claims
a. Claims in Class: Class 2.5 consists of all claims
arising on account of the guaranty obligations of Chart Inc. under the Existing
Credit Facilities.
b. Treatment: On the Consummation Date, Reorganized Chart
Inc. shall enter into and execute (i) the New Term Credit Agreement, as a
guarantor of Reorganized Chart's obligations thereunder, and execute such other
documents, instruments and agreements reasonably requested by the New Agent to
confirm, affirm or grant to the lenders under the New Term Credit Agreement a
guaranty by Reorganized Chart Inc. of the indebtedness of Reorganized Chart
under the New Term Credit Agreement and related documents; (ii) such documents,
instruments and agreements reasonably requested by the New Agent to confirm,
affirm or grant to the New Agent for the ratable benefit of the lenders under
the New Term Credit Agreement a duly perfected second priority lien on and
security interest in all of the assets of Reorganized Chart Inc. owned on the
Consummation Date or thereafter acquired (real, personal or mixed) subject only
to liens securing Other Secured Claims and other permitted liens as provided in
the New Term Credit Agreement; and (iii) such other related documents,
instruments and agreements as shall be reasonably requested by the New Agent
pursuant to the terms of the New Term Credit Agreement and related documents,
including the Amended and Restated Security Agreement.
Class 2.6. - Chart International Holdings, Inc. Guaranty
Claims
a. Claims in Class: Class 2.6 consists of all claims
arising on account of the guaranty obligations of Chart International Holdings,
Inc. under the Existing Credit Facilities.
b. Treatment: On the Consummation Date, Reorganized Chart
International Holdings, Inc. shall enter into and execute (i) the New Term
Credit Agreement, as a guarantor of Reorganized Chart's obligations thereunder,
and execute such other documents, instruments and agreements reasonably
requested by the New Agent to confirm, affirm or grant to the lenders under the
New Term Credit Agreement a guaranty by Reorganized Chart International
Holdings, Inc. of the indebtedness of Reorganized Chart under the New Term
Credit Agreement and related documents; (ii) such documents, instruments and
agreements reasonably requested by the New Agent to confirm, affirm or grant to
the New Agent for the ratable benefit of the lenders under the New Term Credit
Agreement a duly perfected second priority lien on and security interest in all
of the assets of Reorganized Chart International Holdings, Inc. owned on the
Consummation Date or thereafter acquired (real, personal or mixed) subject only
to liens securing Other Secured Claims and other permitted liens as provided in
the New Term Credit Agreement; and (iii) such other related documents,
instruments and agreements as shall be reasonably requested by the New Agent
pursuant to the terms of the New Term Credit Agreement and related documents,
including the Amended and Restated Security Agreement.
Class 2.7. - Chart International, Inc. Guaranty Claims
a. Claims in Class: Class 2.7 consists of all claims
arising on account of the guaranty obligations of Chart International, Inc.
under the Existing Credit Facilities.
b. Treatment: On the Consummation Date, Reorganized Chart
International, Inc. shall enter into and execute (i) the New Term Credit
Agreement, as a guarantor of Reorganized Chart's obligations thereunder, and
execute such other documents, instruments and agreements reasonably requested by
the New Agent to confirm, affirm or grant to the lenders under the New Term
Credit Agreement a guaranty by Reorganized Chart International, Inc. of the
indebtedness of Reorganized Chart under the New Term Credit Agreement and
related documents; (ii) such documents, instruments and agreements reasonably
requested by the New Agent to confirm, affirm or grant to the New Agent for the
ratable benefit of the lenders under the New Term Credit Agreement a duly
perfected second priority lien on and security interest in all of the assets of
Reorganized Chart International, Inc. owned on the Consummation Date or
thereafter acquired (real, personal or mixed) subject only to liens securing
Other Secured Claims and other permitted liens as provided in the New Term
Credit Agreement; and (iii) such other related documents, instruments and
agreements as shall be reasonably requested by the New Agent pursuant to the
terms of the New Term Credit Agreement and related documents, including the
Amended and Restated Security Agreement.
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Class 2.8. - Chart Leasing, Inc. Guaranty Claims
a. Claims in Class: Class 2.8 consists of all claims
arising on account of the guaranty obligations of Chart Leasing, Inc. under the
Existing Credit Facilities.
b. Treatment: On the Consummation Date, Reorganized Chart
Leasing, Inc. shall enter into and execute (i) the New Term Credit Agreement, as
a guarantor of Reorganized Chart's obligations thereunder, and execute such
other documents, instruments and agreements reasonably requested by the New
Agent to confirm, affirm or grant to the lenders under the New Term Credit
Agreement a guaranty by Reorganized Chart Leasing, Inc. of the indebtedness of
Reorganized Chart under the New Term Credit Agreement and related documents;
(ii) such documents, instruments and agreements reasonably requested by the New
Agent to confirm, affirm or grant to the New Agent for the ratable benefit of
the lenders under the New Term Credit Agreement a duly perfected second priority
lien on and security interest in all of the assets of Reorganized Chart Leasing,
Inc. owned on the Consummation Date or thereafter acquired (real, personal or
mixed) subject only to liens securing Other Secured Claims and other permitted
liens as provided in the New Term Credit Agreement; and (iii) such other related
documents, instruments and agreements as shall be reasonably requested by the
New Agent pursuant to the terms of the New Term Credit Agreement and related
documents, including the Amended and Restated Security Agreement.
Class 2.9. - Chart Management Company, Inc. Guaranty Claims
a. Claims in Class: Class 2.9 consists of all claims
arising on account of the guaranty obligations of Chart Management Company, Inc.
under the Existing Credit Facilities.
b. Treatment: On the Consummation Date, Reorganized Chart
Management Company, Inc. shall enter into and execute (i) the New Term Credit
Agreement, as a guarantor of Reorganized Chart's obligations thereunder, and
execute such other documents, instruments and agreements reasonably requested by
the New Agent to confirm, affirm or grant to the lenders under the New Term
Credit Agreement a guaranty by Reorganized Chart Management Company, Inc. of the
indebtedness of Reorganized Chart under the New Term Credit Agreement and
related documents; (ii) such documents, instruments and agreements reasonably
requested by the New Agent to confirm, affirm or grant to the New Agent for the
ratable benefit of the lenders under the New Term Credit Agreement a duly
perfected second priority lien on and security interest in all of the assets of
Reorganized Chart Management Company, Inc. owned on the Consummation Date or
thereafter acquired (real, personal or mixed) subject only to liens securing
Other Secured Claims and other permitted liens as provided in the New Term
Credit Agreement; and (iii) such other related documents, instruments and
agreements as shall be reasonably requested by the New Agent pursuant to the
terms of the New Term Credit Agreement and related documents, including the
Amended and Restated Security Agreement.
Class 2.10. - CoolTel, Inc. Guaranty Claims
a. Claims in Class: Class 2.10 consists of all claims
arising on account of the guaranty obligations of CoolTel, Inc. under the
Existing Credit Facilities.
b. Treatment: On the Consummation Date, Reorganized
CoolTel, Inc. shall enter into and execute (i) the New Term Credit Agreement, as
a guarantor of Reorganized Chart's obligations thereunder, and execute such
other documents, instruments and agreements reasonably requested by the New
Agent to confirm, affirm or grant to the lenders under the New Term Credit
Agreement a guaranty by Reorganized CoolTel, Inc. of the indebtedness of
Reorganized Chart under the New Term Credit Agreement and related documents;
(ii) such documents, instruments and agreements reasonably requested by the New
Agent to confirm, affirm or grant to the New Agent for the ratable benefit of
the lenders under the New Term Credit Agreement a duly perfected second priority
lien on and security interest in all of the assets of Reorganized CoolTel, Inc.
owned on the Consummation Date or thereafter acquired (real, personal or mixed)
subject only to liens securing Other Secured Claims and other permitted liens as
provided in the New Term Credit Agreement; and (iii) such other related
documents, instruments and agreements as shall be reasonably requested by the
New Agent pursuant to the terms of the New Term Credit Agreement and related
documents, including the Amended and Restated Security Agreement.
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Class 2.11. - GTC of Clarksville, LLC Guaranty Claims
a. Claims in Class: Class 2.11 consists of all claims
arising on account of the guaranty obligations of GTC of Clarksville, LLC under
the Existing Credit Facilities.
b. Treatment: On the Consummation Date, Reorganized GTC of
Clarksville, LLC shall enter into and execute (i) the New Term Credit Agreement,
as a guarantor of Reorganized Chart's obligations thereunder, and execute such
other documents, instruments and agreements reasonably requested by the New
Agent to confirm, affirm or grant to the lenders under the New Term Credit
Agreement a guaranty by Reorganized GTC of Clarksville, LLC of the indebtedness
of Reorganized Chart under the New Term Credit Agreement and related documents;
(ii) such documents, instruments and agreements reasonably requested by the New
Agent to confirm, affirm or grant to the New Agent for the ratable benefit of
the lenders under the New Term Credit Agreement a duly perfected second priority
lien on and security interest in all of the assets of Reorganized GTC of
Clarksville, LLC owned on the Consummation Date or thereafter acquired (real,
personal or mixed) subject only to liens securing Other Secured Claims and other
permitted liens as provided in the New Term Credit Agreement; and (iii) such
other related documents, instruments and agreements as shall be reasonably
requested by the New Agent pursuant to the terms of the New Term Credit
Agreement and related documents, including the Amended and Restated Security
Agreement.
Class 2.12. - NexGen Fueling, Inc. Guaranty Claims
a. Claims in Class: Class 2.12 consists of all claims
arising on account of the guaranty obligations of NexGen Fueling, Inc. under the
Existing Credit Facilities.
b. Treatment: On the Consummation Date, Reorganized NexGen
Fueling, Inc. shall enter into and execute (i) the New Term Credit Agreement, as
a guarantor of Reorganized Chart's obligations thereunder, and execute such
other documents, instruments and agreements reasonably requested by the New
Agent to confirm, affirm or grant to the lenders under the New Term Credit
Agreement a guaranty by Reorganized NexGen Fueling, Inc. of the indebtedness of
Reorganized Chart under the New Term Credit Agreement and related documents;
(ii) such documents, instruments and agreements reasonably requested by the New
Agent to confirm, affirm or grant to the New Agent for the ratable benefit of
the lenders under the New Term Credit Agreement a duly perfected second priority
lien on and security interest in all of the assets of Reorganized NexGen
Fueling, Inc. owned on the Consummation Date or thereafter acquired (real,
personal or mixed) subject only to liens securing Other Secured Claims and other
permitted liens as provided in the New Term Credit Agreement; and (iii) such
other related documents, instruments and agreements as shall be reasonably
requested by the New Agent pursuant to the terms of the New Term Credit
Agreement and related documents, including the Amended and Restated Security
Agreement.
3. Class 3 - Other Secured Claims
a. Claims in Class: Each sub-Class of Class 3 Other Secured
Claims contains a single Other Secured Claim, and in the aggregate Class 3
includes all Other Secured Claims against all Debtors. Each sub-Class is a
separate Class for all purposes under the Bankruptcy Code and the Plan,
including for voting purposes. If the Claim of a holder of an Other Secured
Claim exceeds the value of the Collateral that secures it, such holder will have
an Other Secured Claim equal to the Collateral's value and a General Unsecured
Claim for the deficiency.
b. Treatment: The legal, equitable and contractual rights
of the holders of Other Secured Claims are Unimpaired by the Plan. On, or as
soon as reasonably practicable after, (i) the Distribution Date if such Other
Secured Claim is an Allowed Other Secured Claim on the Consummation Date or (ii)
the date on which such Other Secured Claim becomes an Allowed Other Secured
Claim, each holder of an Allowed Other Secured Claim shall receive in full
satisfaction, settlement of and in exchange for, such Allowed Other Secured
Claim, at the election of the Debtors: (a) to the extent due and owing on the
Consummation Date, Cash in the amount of such Allowed Other Secured Claim in
accordance with the terms of the underlying obligation; (b) to the extent not
due and owing on the Consummation Date, Cash in the amount of such Allowed Other
Secured Claim payable when and as such Claim becomes due and owing in the
ordinary course of business in accordance with the terms of the underlying
obligation; (c) such other treatment as to which the holder
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of such Claim and the Debtors or Reorganized Debtors agree in writing; or (d)
such other treatment required to Reinstate such Allowed Other Secured Claim.
4. Class 4 - General Unsecured Claims
a. Claims in Class: Class 4 consists of twelve sub-Classes
of General Unsecured Claims. Class 4.1 consists of all General Unsecured Claims
against Chart. Class 4.2 consists of all General Unsecured Claims against CAIRE
INC. Class 4.3 consists of all General Unsecured Claims against Chart Asia, Inc.
Class 4.4 consists of all General Unsecured Claims against Chart Heat Exchangers
Limited Partnership. Class 4.5 consists of all General Unsecured Claims against
Chart Inc. Class 4.6 consists of all General Unsecured Claims against Chart
International Holdings, Inc. Class 4.7 consists of all General Unsecured Claims
against Chart International, Inc. Class 4.8 consists of all General Unsecured
Claims against Chart Leasing, Inc. Class 4.9 consists of all General Unsecured
Claims against Chart Management Company, Inc. Class 4.10 consists of all General
Unsecured Claims against CoolTel, Inc. Class 4.11 consists of all General
Unsecured Claims against GTC of Clarksville, LLC. Class 4.12 consists of all
General Unsecured Claims against NexGen Fueling, Inc. Each sub-Class is deemed
to be a separate Class for all purposes under the Bankruptcy Code and the Plan,
including for voting purposes.
b. Treatment: The legal, equitable and contractual rights
of the holders of General Unsecured Claims are Unimpaired by the Plan. On, or as
soon as reasonably practicable after, (i) the Distribution Date if such General
Unsecured Claim is an Allowed General Unsecured Claim on the Consummation Date
or (ii) the date on which such General Unsecured Claim becomes an Allowed
General Unsecured Claim, each holder of an Allowed General Unsecured Claim shall
receive in full satisfaction, settlement of and in exchange for, such Allowed
General Unsecured Claim, at the election of the Debtors: (a) to the extent due
and owing on the Consummation Date, Cash in the amount of such Allowed General
Unsecured Claim in accordance with the terms of the underlying obligation; (b)
to the extent not due and owing on the Consummation Date, Cash in the amount of
such Allowed General Unsecured Claim payable when and as such Claim becomes due
and owing in the ordinary course of business in accordance with the terms of the
underlying obligation; (c) such other treatment as to which the holder of such
Claim and the Debtors or Reorganized Debtors agree in writing; or (d) such other
treatment required to Reinstate such Allowed General Unsecured Claim.
5. Class 5 - Unimpaired Intercompany Claims
a. Claims in Class: Class 5 consists of twelve sub-Classes
of Unimpaired Intercompany Claims. Class 5.1 consists of all Unimpaired
Intercompany Claims against Chart. Class 5.2 consists of all Unimpaired
Intercompany Claims against CAIRE INC. Class 5.3 consists of all Unimpaired
Intercompany Claims against Chart Asia, Inc. Class 5.4 consists of all
Unimpaired Intercompany Claims against Chart Heat Exchangers Limited
Partnership. Class 5.5 consists of all Unimpaired Intercompany Claims against
Chart Inc. Class 5.6 consists of all Unimpaired Intercompany Claims against
Chart International Holdings, Inc. Class 5.7 consists of all Unimpaired
Intercompany Claims against Chart International, Inc. Class 5.8 consists of all
Unimpaired Intercompany Claims against Chart Leasing, Inc. Class 5.9 consists of
all Unimpaired Intercompany Claims against Chart Management Company, Inc. Class
5.10 consists of all Unimpaired Intercompany Claims against CoolTel, Inc. Class
5.11 consists of all Unimpaired Intercompany Claims against GTC of Clarksville,
LLC. Class 5.12 consists of all Unimpaired Intercompany Claims against NexGen
Fueling, Inc. Each sub-Class is deemed to be a separate Class for all purposes
under the Bankruptcy Code and the Plan, including for voting purposes.
b. Treatment: The legal, equitable and contractual rights
of the holders of Unimpaired Intercompany Claims are Unimpaired by the Plan and
all such Claims shall be Reinstated on the Consummation Date.
6. Class 6 - Impaired Intercompany Claims
a. Claims in Class: Class 6 consists of twelve sub-Classes
of Impaired Intercompany Claims. Class 6.1 consists of all Impaired Intercompany
Claims against Chart. Class 6.2 consists of all Impaired Intercompany Claims
against CAIRE INC. Class 6.3 consists of all Impaired Intercompany Claims
against Chart Asia, Inc. Class 6.4 consists of all Impaired Intercompany Claims
against Chart Heat Exchangers Limited Partnership. Class 6.5 consists of all
Impaired Intercompany Claims against Chart Inc. Class 6.6 consists of all
Impaired Intercompany Claims against Chart International Holdings, Inc. Class
6.7 consists of all Impaired Intercompany Claims against Chart International,
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Inc. Class 6.8 consists of all Impaired Intercompany Claims against Chart
Leasing, Inc. Class 6.9 consists of all Impaired Intercompany Claims against
Chart Management Company, Inc. Class 6.10 consists of all Impaired Intercompany
Claims against CoolTel, Inc. Class 6.11 consists of all Impaired Intercompany
Claims against GTC of Clarksville, LLC. Class 6.12 consists of all Impaired
Intercompany Claims against NexGen Fueling, Inc. Each sub-Class is deemed to be
a separate Class for all purposes under the Bankruptcy Code and the Plan,
including for voting purposes.
b. Treatment: The holders of Impaired Intercompany Claims
shall not receive or retain any property under the Plan on account of such
Claims.
7. Class 7 - Old Chart Common Stock Interests
a. Interests in Class: Class 7 consists of all Old Chart
Common Stock Interests.
b. Treatment: On the Consummation Date, all Old Chart
Common Stock shall be deemed cancelled and extinguished. As required under the
Lender Settlement summarized in Article II.A, on or as soon as reasonably
practicable after the Distribution Date, each holder of an Old Chart Common
Stock Interest shall receive in exchange for its Interests, subject to the
procedures set forth in Article VI.C of the Plan, (a) its Pro Rata share of the
Class 7 New Common Stock and (b) its Pro Rata share of the New Warrants.
8. Class 8 - Old Subsidiary Equity Interests
a. Interests in Class: Class 8 consists of eleven separate
sub-Classes of Old Subsidiary Equity Interests. Class 8.1 consists of all Old
Subsidiary Equity Interests in CAIRE INC. Class 8.2 consists of all Old
Subsidiary Equity Interests in Chart Asia, Inc. Class 8.3 consists of all Old
Subsidiary Equity Interests in Chart Heat Exchangers Limited Partnership. Class
8.4 consists of all Old Subsidiary Equity Interests in Chart Inc. Class 8.5
consists of all Old Subsidiary Equity Interests in Chart International Holdings,
Inc. Class 8.6 consists of all Old Subsidiary Equity Interests in Chart
International, Inc. Class 8.7 consists of all Old Subsidiary Equity Interests in
Chart Leasing, Inc. Class 8.8 consists of all Old Subsidiary Equity Interests in
Chart Management Company, Inc. Class 8.9 consists of all Old Subsidiary Equity
Interests in CoolTel, Inc. Class 8.10 consists of all Old Subsidiary Equity
Interests in GTC of Clarksville, LLC. Class 8.11 consists of all Old Subsidiary
Equity Interests in NexGen Fueling, Inc. Each sub-Class is deemed to be a
separate sub-Class for all purposes under the Bankruptcy Code and the Plan,
including for voting purposes.
b. Treatment: The holders of Old Subsidiary Equity
Interests shall not receive or retain any property under the Plan on account of
such Interests. On the Consummation Date, all Old Subsidiary Equity shall be
deemed cancelled and extinguished.
9. Class 9 - Other Equity Interests
a. Interests in Class: Class 9 consists of all Other Equity
Interests.
b. Treatment: The holders of Other Equity Interests shall
not receive or retain any property under the Plan on account of such Interests.
On the Consummation Date, all Other Equity Rights shall be deemed cancelled and
extinguished.
10. Class 10 - Subordinated Claims
a. Claims in Class: Class 10 consists of all Subordinated
Claims.
b. Treatment: The holders of Subordinated Claims shall not
receive or retain any property under the Plan on account of such Claims. The
Debtors do not believe that there are any Subordinated Claims and, therefore,
the Debtors will object to any Subordinated Claim filed.
PLAN-20
D. Allowed Claims and Allowed Interests
Notwithstanding any provision herein to the contrary, the Debtors or
Reorganized Debtors shall only make distributions to holders of Allowed Claims
and Allowed Interests. No holder of a Disputed Claim or Disputed Interest will
receive any distribution on account thereof until and to the extent that its
Disputed Claim or Disputed Interest becomes an Allowed Claim or Allowed
Interest.
E. Postpetition Interest
In accordance with section 502(b)(2) of the Bankruptcy Code, the amount
of all Claims against the Debtors shall be calculated as of the Petition Date.
Except as otherwise explicitly provided herein or in an order of the Bankruptcy
Court, no holder of a Claim shall be entitled to or receive Postpetition
Interest.
F. Special Provision Regarding Unimpaired Claims and Interests
Except as otherwise provided in the Plan, nothing shall affect the
Debtors' or the Reorganized Debtors' respective rights and defenses, both legal
and equitable, with respect to any Unimpaired Claim or Interest (including
Claims and Interests that are Allowed pursuant to the Plan), including, without
limitation, all rights with respect to legal and equitable defenses to setoffs
or recoupments against Unimpaired Claims or Interests.
ARTICLE V.
MEANS FOR IMPLEMENTATION OF THE PLAN
A. Continued Existence and Vesting of Assets in Reorganized Debtors
The Reorganized Debtors shall continue to exist after the Consummation
Date as separate corporate or other business entities, in accordance with the
applicable law in the respective jurisdictions in which they are incorporated or
formed and pursuant to their respective certificates of incorporation and bylaws
or other governing documents as amended and restated on the Consummation Date.
The Reorganized Chart Industries, Inc. Certificate of Incorporation and the
Reorganized Chart Industries, Inc. Bylaws are attached hereto as Exhibits A-1
and A-2, respectively.
Among other things, the Debtors' existing certificates of incorporation
or other governing documents shall be amended to include a provision prohibiting
the issuance of nonvoting equity securities as required under section 1123(a)(6)
of the Bankruptcy Code. In addition, the Reorganized Subsidiary Debtors'
constituent documents will be amended as necessary to effect the issuance of
their respective new common stock, limited partnership interests, general
partnership interests and limited liability company membership interests.
On and after the Consummation Date, all property of the Estates,
including all claims, rights and causes of action and any property acquired by
the Debtors or the Reorganized Debtors under or in connection with the Plan,
shall vest in the Reorganized Debtors free and clear of all Claims, liens,
charges, other encumbrances and Interests except as otherwise provided in the
Plan. On and after the Consummation Date, the Reorganized Debtors may operate
their businesses and may use, acquire and dispose of property and compromise or
settle any Claims without supervision of or approval by the Bankruptcy Court and
free and clear of any restrictions of the Bankruptcy Code or Bankruptcy Rules
other than restrictions expressly imposed by the Plan or the Confirmation Order.
Without limiting the foregoing, the Reorganized Debtors may pay charges that
they incur on and after the Consummation Date for Professionals' fees,
disbursements, expenses or related support services without application to the
Bankruptcy Court.
B. Cancellation of Securities and Agreements
As of the Consummation Date, any certificates constituting the Old
Chart Common Stock will evidence solely the right to receive the distribution of
the consideration set forth in Article IV.C. On the Consummation Date, except as
otherwise provided for in the Plan, (i) the promissory notes issued under the
Existing Credit Facilities, the Old Chart Common
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Stock, the Old Subsidiary Equity and the Other Equity Rights, to the extent not
already cancelled, shall be deemed cancelled and of no further force or effect
without any further action on the part of the Bankruptcy Court or any Person,
and (ii) the obligations of Chart under the Existing Credit Facilities, the Old
Chart Common Stock, the Old Subsidiary Equity and the Other Equity Rights and
under any agreements, indentures or other designations governing the Existing
Credit Facilities, the Old Chart Common Stock, the Old Subsidiary Equity or the
Other Equity Rights shall be discharged; provided, however, that each agreement
that governs the rights of the holder of a Senior Lender Claim and that is
administered by an agent, indenture trustee or servicer shall continue in effect
solely for the purposes of (a) allowing such agent, indenture trustee or
servicer to make the distributions to be made on account of such Claims under
the Plan and (b) permitting such agent, indenture trustee or servicer to
maintain any rights it may have for indemnification, liens, fees, costs and
expenses under such agreement. Additionally, the cancellation of the Existing
Credit Facilities shall not impair the rights and duties thereunder as between
the Agent and the Senior Lenders. Notwithstanding anything in this paragraph or
elsewhere 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 the
Confirmation Order, and shall remain in full force and effect and 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.
C. Restructuring Transactions
1. New Common Stock and New Warrants
a. Authorization
As of the Consummation Date, without the requirement of further act or
action under applicable non-bankruptcy law, regulation, order or rule,
Reorganized Chart is authorized to (i) issue shares of New Common Stock to
holders of Chart Senior Lender Claims and Old Chart Common Stock Interests and
issue New Warrants to holders of Old Chart Common Stock Interests, in each case
in the proportions and amounts set forth herein, and (ii) perform its
obligations under the New Warrants, including reserving shares of New Common
Stock for such purpose and issuing shares of New Common Stock upon exercise of
the New Warrants.
b. Issuance
On or as soon as practicable after the Consummation Date, shares of New
Common Stock, and the New Warrants exercisable for additional shares of New
Common Stock, in each case as authorized pursuant to this Article V.C.1, shall
be issued by Reorganized Chart pursuant to the Plan, without the requirement of
further act or action under applicable non-bankruptcy law, regulation, order or
rule.
c. Management Incentive Plan
The Management Incentive Plan shall be adopted by the board of
directors of Reorganized Chart after the Consummation Date and shall authorize
the board of directors of Reorganized Chart to grant management employees of
Reorganized Chart and its subsidiaries and the members of the board of directors
of Reorganized Chart options to acquire shares of New Common Stock in an
aggregate amount up to five percent (5%) of the New Common Stock issued pursuant
to this Plan. Exercise price, recipients, vesting and other terms of the
Management Incentive Plan shall be determined by the board of directors of
Reorganized Chart. The number of options actually distributed under the
Management Incentive Plan shall be determined at the sole discretion of the
board of directors of Reorganized Chart, and nothing contained herein shall
prevent such board from (i) granting less than the five percent (5%) of New
Common Stock referenced above or (ii) granting, in compliance with applicable
nonbankruptcy law, more than the five percent (5%) of New Common Stock
referenced above.
2. New Subsidiary Equity
Pursuant to the Lender Settlement, as of the Consummation Date, the
respective new common stock, limited partnership interests, general partnership
interests and limited liability company membership interests in the Reorganized
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Subsidiary Debtors shall be authorized, issued and distributed so as to maintain
the organizational structure of the Debtors substantially as such structure
existed on the Petition Date.
a. Reorganized CAIRE INC.
As of the Consummation Date, without the requirement of further act or
action under applicable non-bankruptcy law, regulation, order or rule,
Reorganized CAIRE INC. is authorized to issue and shall issue 100 shares of new
common stock to Reorganized Chart Inc.
b. Reorganized Chart Asia, Inc.
As of the Consummation Date, without the requirement of further act or
action under applicable non-bankruptcy law, regulation, order or rule,
Reorganized Chart Asia, Inc. is authorized to issue and shall issue 100 shares
of new common stock to Reorganized Chart Inc.
c. Reorganized Chart Heat Exchangers Limited Partnership
As of the Consummation Date, without the requirement of further act or
action under applicable non-bankruptcy law, regulation, order or rule,
Reorganized Chart Heat Exchangers Limited Partnership is authorized to issue and
shall issue a 5% general partnership interest to Reorganized Chart Management
Company, Inc. and a 95% limited partnership interest to Reorganized Chart Inc.,
and the limited partnership is hereby deemed to elect to reconstitute and
continue the limited partnership and to designate Reorganized Chart Management
Company, Inc. as general partner.
d. Reorganized Chart Inc.
As of the Consummation Date, without the requirement of further act or
action under applicable non-bankruptcy law, regulation, order or rule,
Reorganized Chart Inc. is authorized to issue and shall issue 100 shares of new
common stock to Reorganized Chart Industries, Inc.
e. Reorganized Chart International Holdings, Inc.
As of the Consummation Date, without the requirement of further act or
action under applicable non-bankruptcy law, regulation, order or rule,
Reorganized Chart International Holdings, Inc. is authorized to issue and shall
issue 100 shares of new common stock to Reorganized Chart Inc.
f. Reorganized Chart International, Inc.
As of the Consummation Date, without the requirement of further act or
action under applicable non-bankruptcy law, regulation, order or rule,
Reorganized Chart International, Inc. is authorized to issue and shall issue 100
shares of new common stock to Reorganized Chart Industries, Inc.
g. Reorganized Chart Leasing, Inc.
As of the Consummation Date, without the requirement of further act or
action under applicable non-bankruptcy law, regulation, order or rule,
Reorganized Chart Leasing, Inc. is authorized to issue and shall issue 100
shares of new common stock to Reorganized Chart Industries, Inc., and the stated
capital of Reorganized Chart Leasing, Inc. shall be $10.00.
h. Reorganized Chart Management Company, Inc.
As of the Consummation Date, without the requirement of further act or
action under applicable non-bankruptcy law, regulation, order or rule,
Reorganized Chart Management Company, Inc. is authorized to issue and shall
issue 100 shares of new common stock to Reorganized Chart Industries, Inc., and
the stated capital of Reorganized Chart Management Company, Inc. shall be
$10.00.
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i. Reorganized CoolTel, Inc.
As of the Consummation Date, without the requirement of further act or
action under applicable non-bankruptcy law, regulation, order or rule,
Reorganized CoolTel, Inc. is authorized to issue and shall issue 100 shares of
new common stock to Reorganized Chart Inc.
j. Reorganized GTC of Clarksville, LLC
As of the Consummation Date, without the requirement of further act or
action under applicable non-bankruptcy law, regulation, order or rule,
Reorganized GTC of Clarksville, LLC is authorized to issue and shall issue a
100% membership interest to Reorganized Chart Inc.
k. Reorganized NexGen Fueling, Inc.
As of the Consummation Date, without the requirement of further act or
action under applicable non-bankruptcy law, regulation, order or rule,
Reorganized NexGen Fueling, Inc. is authorized to issue and shall issue 100
shares of new common stock to Reorganized Chart Inc.
3. New Credit Agreements
a. New Term Credit Agreement
On the Consummation Date, (i) the New Term Credit Agreement, together
with new promissory notes evidencing the obligations of Reorganized Chart
thereunder, and all other documents, instruments and agreements to be entered
into, delivered or confirmed thereunder on the Consummation Date, shall become
effective, and (ii) the Reorganized Debtors shall execute the New Term Credit
Agreement, the promissory notes and all other documents, instruments and
agreements to be entered into, delivered or confirmed in connection with the New
Term Credit Agreement. Notwithstanding anything herein to the contrary, payment
obligations under the promissory notes issued pursuant to the New Term Credit
Agreement, and all obligations under the New Term Credit Agreement and related
documents, including the Collateral Agency and Intercreditor Agreement and the
Amended and Restated Security Agreement, shall be subject to repayment and
performance by the obligors thereunder, on the terms set forth in the New Term
Credit Agreement and related documents.
b. Amended and Restated Revolving Credit Agreement
On the Consummation Date, (i) the Amended and Restated Revolving Credit
Agreement, together with new promissory notes evidencing the obligations of
Reorganized Chart thereunder, and all other documents, instruments and
agreements to be entered into, delivered or confirmed thereunder on the
Consummation Date, shall become effective, and (ii) the Reorganized Debtors
shall execute the Amended and Restated Revolving Credit Agreement, the
promissory notes and all other documents, instruments and agreements to be
entered into, delivered or confirmed in connection with the Amended and Restated
Revolving Credit Agreement. Notwithstanding anything herein to the contrary,
payment obligations under the promissory notes issued pursuant to the Amended
and Restated Revolving Credit Agreement, and all obligations under the Amended
and Restated Revolving Credit Agreement and related documents, including the
Collateral Agency and Intercreditor Agreement and the Amended and Restated
Security Agreement, shall be subject to repayment and performance by the
obligors thereunder, on the terms set forth set forth in the Amended and
Restated Revolving Credit Agreement and related documents.
c. Collateral Agency and Intercreditor Agreement
On the Consummation Date, (i) the Collateral Agency and Intercreditor
Agreement, and all other documents, instruments and agreements to be entered
into, delivered or confirmed thereunder on the Consummation Date, shall become
effective, and (ii) Reorganized Chart shall execute the Collateral Agency and
Intercreditor Agreement, and all other documents, instruments and agreements to
be entered into, delivered or confirmed in connection with the Collateral Agency
and Intercreditor Agreement.
PLAN-24
4. Investor Rights Agreement
On or prior to the Consummation Date, Reorganized Chart and certain
holders of shares of New Common Stock may enter into the Investor Rights
Agreement.
5. New Warrants
On the Consummation Date, the New Warrants, substantially in the form
of Exhibit E hereto, shall be issued to holders of Old Chart Common Stock
Interests pursuant to the Plan. The New Warrants shall entitle the holders
thereof to purchase 280,281 shares of New Common Stock (subject to adjustment
under the anti-dilution provisions of the New Warrants) at an exercise price per
share equal to (i) the difference between (x) $280 million and (y) the aggregate
amount of net debt (i.e., debt less cash) and capitalized lease obligations of
Chart and its direct and indirect subsidiaries outstanding immediately after the
Consummation Date, divided by (ii) 5,325,331. The New Warrants shall expire not
later than 2010, include a cashless exercise feature and have anti-dilution
protections for stock splits, combinations and the like. In the event of any
inconsistency between the foregoing and the New Warrants, the provisions of the
New Warrants will control.
D. Directors, Officers and Managers
On the Consummation Date, the term of the current board of directors of
Chart shall expire. The initial board of directors of Reorganized Chart shall
consist of seven (7) members, which shall include: (a) six (6) members to be
designated by the Senior Lenders, one of which shall be the chief executive
officer of Reorganized Chart, and at least one of which shall be an independent
director, and (b) one (1) member to be designated by the current board of
directors of Chart (the "Initial Board Designee"), which director must be
reasonably acceptable to the Senior Lender Steering Committee. The Debtors will
identify the individuals proposed to serve as officers, directors and Managers
of the Reorganized Debtors prior to the Confirmation Hearing.
The Initial Board Designee shall be appointed to serve as a director of
Reorganized Chart for a term beginning on the Consummation Date and ending upon
the first to occur of (i) the first annual or special meeting held for the
election of directors of Reorganized Chart or (ii) written consent of
stockholders taken for the election of directors of Reorganized Chart, in each
case held or taken after the second anniversary of the Consummation Date (the
"Designee Term"). In the event of the death or resignation of the Initial Board
Designee, or in the event that the Initial Board Designee is removed as a
director for Cause, such director shall be replaced and such vacancy filled by a
second person to be identified in the Plan Supplement (the "Secondary Board
Designee" and, together with the Initial Board Designee, the "Current Board
Designated Director"), and such person shall serve, and be named, constituted
and appointed, as a director of Reorganized Chart for the remaining portion of
the Designee Term. In the event of the death (while serving as a director) or
resignation of the Secondary Board Designee, or in the event that the Secondary
Board Designee is removed as a director for Cause, such director shall be
replaced and such vacancy filled by the vote of a majority of the directors of
Reorganized Chart then in office. Such replacement director shall serve until
the next annual meeting of Reorganized Chart or until such director's successor
is duly elected and qualified and, thereafter, such directorship shall be filled
by election of a plurality of the votes cast at an annual or special meeting, or
by written consent, of stockholders as set forth in the Reorganized Chart
Certificate of Incorporation and the Reorganized Chart Bylaws.
The Current Board Designated Director may be removed at any time for
Cause by the vote of a majority of the directors of Reorganized Chart then in
office (excluding the director so sought to be removed). The Current Board
Designated Director may not be removed without Cause at any time during the
Designee Term.
E. Preservation of Rights of Action; Settlement of Litigation Claims
Except as otherwise provided in the Plan, the Confirmation Order or in
any document, instrument, release or other agreement entered into in connection
with the Plan, in accordance with section 1123(b) of the Bankruptcy Code, the
Reorganized Debtors will retain all claims, rights of action, suits or
proceedings, whether in law or in equity, whether known or unknown, that the
Debtors or their Estates may hold against any Person, except such claims that
are released under the Plan or the Confirmation Order (collectively, "Litigation
Claims"), and may enforce, sue on, settle or compromise (or decline to do any of
the foregoing) any or all of such Litigation Claims. Schedule 1 to the Plan
contains a non-exclusive list of claims or
PLAN-25
causes of action that the Debtors hold or may hold either in pending or
potential litigation. The Debtors reserve their right to modify Schedule 1 to
the Plan to add or delete parties or causes of action, but disclaim any
obligation to do so. The failure of the Debtors to specifically list any claim,
right of action, suit or proceeding herein or in the Plan does not, and will not
be deemed to, constitute a waiver or release by the Debtors of such claim, right
of action, suit or proceeding, and the Reorganized Debtors will retain the right
to pursue additional claims, rights of action, suits or proceedings. In
addition, at any time after the Petition Date and before the Consummation Date,
notwithstanding anything in the Plan to the contrary, the Debtors or the
Reorganized Debtors may settle some or all of the Litigation Claims with the
approval of the Bankruptcy Court pursuant to Bankruptcy Rule 9019.
F. Effectuating Documents; Further Transactions
The chairman of the board of directors, president, chief financial
officer or any other appropriate officer or Manager of each Debtor shall be
authorized to execute, deliver, file or record such contracts, instruments,
releases, indentures and other agreements or documents, and take such actions,
as may be necessary or appropriate to effectuate and further evidence the terms
and conditions of the Plan. The secretary or assistant secretary of the
appropriate Debtor shall be authorized to certify or attest to any of the
foregoing actions.
G. Exemption from Certain Transfer Taxes
Pursuant to section 1146(c) of the Bankruptcy Code, any transfers from
a Debtor to a Reorganized Debtor or any other Person or entity pursuant to the
Plan shall not be subject to any document recording tax, stamp tax, conveyance
fee, intangibles or similar tax, mortgage tax, stamp act, real estate transfer
tax, mortgage recording tax or other similar tax or governmental assessment, and
the Confirmation Order shall direct the appropriate state or local governmental
officials or agents 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.
ARTICLE VI.
PROVISIONS GOVERNING DISTRIBUTIONS
A. Distributions for Claims and Interests Allowed as of the Consummation
Date
Except as otherwise provided herein or as ordered by the Bankruptcy
Court, distributions to be made on account of or in exchange for Claims or
Interests that are Allowed Claims or Allowed Interests as of the Consummation
Date shall be made on the Distribution Date. All Cash distributions shall be
made from available Cash of the Reorganized Debtors. Any distribution under the
Plan of property other than Cash shall be made by the Disbursing Agent or the
Agent, as applicable, in accordance with the terms of the Plan.
B. Disbursing Agent
The Disbursing Agent shall make all distributions required under the
Plan (subject to the provisions of Articles IV, VI and VII hereof), except with
respect to a holder of a Claim whose distribution is governed by an indenture or
other agreement and is administered by an indenture trustee, agent or servicer,
which distributions shall be deposited with the appropriate indenture trustee,
agent or servicer, who shall deliver such distributions to the holders of Claims
in accordance with the provisions of the Plan and the terms of the relevant
indenture or other governing agreement.
If the Disbursing Agent is an independent third party designated by
Reorganized Chart to serve in such capacity (or, in the case of an indenture or
other agreement that governs distributions and is administered by an indenture
trustee, agent or servicer), such Disbursing Agent, indenture trustee, agent or
servicer shall receive, without further Bankruptcy Court approval, reasonable
compensation for distribution services rendered pursuant to the Plan and
reimbursement of reasonable out-of-pocket expenses incurred in connection with
such services from the Reorganized Debtors on terms acceptable to the
Reorganized Debtors. No Disbursing Agent shall be required to give any bond or
surety or other security for the performance
PLAN-26
of its duties unless otherwise ordered by the Bankruptcy Court. If otherwise so
ordered, all costs and expenses of procuring any such bond shall be paid by the
Reorganized Debtors.
C. Surrender of Securities or Instruments
As a condition precedent to receiving any distribution of New Common
Stock or New Warrants on account of Chart Senior Lender Claims or in exchange
for Old Chart Common Stock Interests, the holders of such Claims or Interests
shall tender the applicable instruments, securities or other documentation
evidencing such Claims or Interests to Reorganized Chart, unless waived in
writing by Reorganized Chart. Any New Common Stock or New Warrants to be
distributed pursuant to the Plan on account of or in exchange for any such Claim
or Interest shall, pending such surrender, be treated as an undeliverable
distribution pursuant to the Plan.
1. Old Chart Common Stock. Each holder of an instrument
evidencing Old Chart Common Stock (a "Certificate") shall,
following the Consummation Date, surrender its Certificate
to Reorganized Chart or its agents, as applicable, in
accordance with written instructions to be provided to
such holders by Reorganized Chart as promptly as
practicable following the Consummation Date. Such
instructions shall specify that delivery of such
Certificates will be effected, and risk of loss and title
thereto will pass, only upon the proper delivery of such
Certificates with a letter of transmittal in accordance
with such instructions. All surrendered Certificates shall
be marked as cancelled.
2. Failure to Surrender Instruments. Any holder of Old Chart
Common Stock evidenced by a Certificate that fails to
surrender or is deemed to have failed to surrender its
Certificate within one (1) year after the Consummation
Date shall have its Interest and its distribution pursuant
to the Plan in exchange for such Old Chart Common Stock
discharged and shall be forever barred from asserting any
such Interest against Reorganized Chart or its property.
In such cases, any New Common Stock or New Warrants held
for distribution in exchange for such Interest shall be
disposed of pursuant to Article VI.H of the Plan.
3. Senior Lender Claims. On or before the Consummation Date,
the holders of the Senior Lender Claims shall deliver
their promissory notes (or affidavits of the loss,
mutilation or destruction of such notes, in form and
substance reasonably acceptable to the Debtors and the
Agent) evidencing such Claims to Reorganized Chart.
D. Lost, Stolen, Mutilated or Destroyed Securities
Any holder of Old Chart Common Stock evidenced by a Certificate that
has been lost, stolen, mutilated or destroyed shall, in lieu of surrendering its
Certificate, deliver to Reorganized Chart or its agents: (i) evidence reasonably
satisfactory to Reorganized Chart of the loss, theft, mutilation or destruction
of such Certificate, and (ii) such security or indemnity as may be required by
Reorganized Chart to hold Reorganized Chart harmless from any damages,
liabilities or costs incurred in treating such individual as a holder of an
Allowed Interest. Upon compliance with the foregoing by a holder of Old Chart
Common Stock, such holder shall, for all purposes under the Plan, be deemed to
have surrendered its Certificate.
E. Record Date for Distributions to Holders of Old Chart Common Stock
At the close of business on the Distribution Record Date, the transfer
ledgers for Old Chart Common Stock shall be closed, and there shall be no
further changes in the record holders of such securities. Reorganized Chart and
the Disbursing Agent, if any, shall have no obligation to recognize any transfer
of any such securities occurring after the Distribution Record Date and shall be
entitled instead to recognize and deal for all purposes hereunder with only
those record holders stated on the transfer ledgers as of the close of business
on the Distribution Record Date.
PLAN-27
F. Means of Cash Payment
Cash payments under the Plan will be in U.S. funds by checks drawn on a
domestic bank selected by Reorganized Chart, or by wire transfer from a domestic
bank, at the option of Reorganized Chart. Cash payments to foreign creditors may
be made, at the option of Reorganized Chart, in such funds and by such means as
are necessary or customary in a particular foreign jurisdiction.
G. Calculation of Distribution Amounts of New Common Stock
No fractional shares of New Common Stock or fractional New Warrants
shall be issued or distributed under the Plan or by Reorganized Chart or any
Disbursing Agent, indenture trustee, agent or servicer. Each Person entitled to
receive New Common Stock or New Warrants shall receive the total number of whole
shares of New Common Stock or whole New Warrants to which such Person is
entitled. Whenever any distribution to a particular Person would otherwise call
for distribution of a fraction of a share of New Common Stock or a fraction of a
New Warrant, the Disbursing Agent shall allocate separately one whole share of
New Common Stock or one whole New Warrant, as applicable, to such Person in
order of the fractional portion of their entitlements, starting with the largest
such fractional portion, until all remaining whole shares of New Common Stock or
whole New Warrants, as applicable, have been allocated. Upon the allocation of a
whole share of New Common Stock or a whole New Warrant to a Person in respect of
the fractional portion of its entitlement, such fractional portion shall be
deemed cancelled. If two or more Persons are entitled to equal fractional
entitlements and the number of Persons so entitled exceeds the number of whole
shares of New Common Stock or whole New Warrants, as applicable, which remain to
be allocated, the Disbursing Agent shall allocate the remaining whole shares of
New Common Stock or whole New Warrants, as applicable, to such holders by random
lot or such other impartial method as the Disbursing Agent deems fair. Upon the
allocation of all of the whole shares of New Common Stock or whole New Warrants
authorized under the Plan, all remaining fractional portions of the entitlements
shall be cancelled and shall be of no further force and effect. No shares of New
Common Stock or New Warrants will be issued and no other property will be
distributed under the Plan or by Reorganized Chart or any Disbursing Agent,
indenture trustee, agent or servicer on account of entitlements to a fractional
share of New Common Stock or fractional New Warrant which fall below a threshold
level to be determined by the Disbursing Agent after allocation of whole shares
of New Common Stock and whole New Warrants in respect of fractional entitlements
as described above. Accordingly, a person who otherwise would be entitled to
receive a distribution of a fractional share of New Common Stock or a fractional
New Warrant will not receive any such distribution if the number of fractional
shares of New Common Stock or fractional New Warrants, as applicable, such
person was to receive falls below such threshold.
H. Delivery of Distributions; Undeliverable or Unclaimed Distributions
Distributions to holders of Allowed Claims and Allowed Interests shall
be made by the Disbursing Agent or the Agent, as the case may be, (i) at each
holder's address set forth in the Debtors' books and records, unless such
address is superseded by a proof of claim or interest or transfer of claim filed
pursuant to Bankruptcy Rule 3001, (ii) at the address in any written notice of
address change delivered to the Disbursing Agent or, with respect to a Senior
Lender Claim, the Agent, as applicable, or (iii) at the address set forth in a
properly completed letter of transmittal accompanying a Certificate properly
remitted in accordance with the terms hereof. If any holder's distribution is
returned as undeliverable, no further distributions to such holder shall be
made, unless and until the Disbursing Agent or the Agent, as applicable, is
notified of such holder's then current address, at which time all missed
distributions shall be made to such holder without interest. Amounts in respect
of undeliverable distributions made through the Disbursing Agent or the Agent
shall be returned to the appropriate Reorganized Debtor until such distributions
are claimed. All claims for undeliverable distributions must be made within one
(1) year after the Consummation Date, after which date the claim of any holder
or successor to such holder with respect to such property will be discharged and
forever barred. In such cases, any Cash for distribution on account of or in
exchange for unclaimed or undeliverable distributions shall become property of
the Estates free of any restrictions thereon and notwithstanding any federal or
state escheat laws to the contrary. Any New Common Stock or New Warrants held
for distribution on account of such Claim or Interest shall be canceled and of
no further force or effect. Nothing contained in the Plan shall require any
Disbursing Agent, including, but not limited to, Reorganized Chart, to attempt
to locate any holder of an Allowed Claim or Interest.
PLAN-28
I. Withholding and Reporting Requirements
In connection with the Plan and all distributions thereunder,
Reorganized Chart shall comply with all withholding and reporting requirements
imposed by any federal, state, local or foreign taxing authority, and all
distributions shall be subject to any such withholding and reporting
requirements. Reorganized Chart shall be authorized to take any and all actions
that may be necessary or appropriate to comply with such withholding and
reporting requirements. Notwithstanding any other provision of the Plan, (i)
each holder of an Allowed Claim or Interest that is to receive a distribution of
New Common Stock or New Warrants pursuant to the Plan shall have sole and
exclusive responsibility for the satisfaction and payment of any tax obligations
imposed by any governmental unit, including income, withholding and other tax
obligations, on account of such distribution, and (ii) no distribution shall be
made to or on behalf of such holder pursuant to the Plan unless and until such
holder has made arrangements satisfactory to Reorganized Chart for the payment
and satisfaction of such tax obligations or has, to Reorganized Chart's
satisfaction, established an exemption therefrom. Any New Common Stock or New
Warrants to be distributed pursuant to the Plan shall, pending the
implementation of such arrangements, be treated as undeliverable pursuant to
Article VI.H of the Plan.
J. Allocation of Plan Distributions Between Principal and Interest
To the extent that any Allowed Claim entitled to a distribution under
the Plan is comprised of indebtedness and accrued but unpaid interest thereon,
such distribution shall, for the Debtors' federal income tax purposes, be
allocated on the Debtors' books and records to the principal amount of the Claim
first and then, to the extent the consideration exceeds the principal amount of
the Claim, to accrued but unpaid interest.
K. Setoffs
Except as provided in the Plan, a Reorganized Debtor may, but shall not
be required to, set off or offset against any Claim, and the payments or other
distributions to be made pursuant to the Plan in respect of such Claim, claims
of any nature whatsoever that the Debtor or Reorganized Debtor may have against
the Claim's holder; provided, however, that neither the failure to do so nor the
allowance of any Claim hereunder shall constitute a waiver or release by the
Reorganized Debtor of any claim that the Debtor or Reorganized Debtor may have
against such holder. Nothing herein shall be deemed to expand rights to setoff
under applicable law.
ARTICLE VII.
PROCEDURES FOR RESOLVING DISPUTED,
CONTINGENT AND UNLIQUIDATED CLAIMS
A. Resolution of Disputed Claims
Except as provided otherwise in the Plan, holders of Claims and
Interests shall not be required to file proofs of Claim or proofs of Interest
with the Bankruptcy Court. The amount and validity of any disputed, contingent
and/or unliquidated Claim or Interest shall be determined, resolved or
adjudicated, as the case may be, in the manner in which such Claim or Interest
would have been determined, resolved or adjudicated if the Chapter 11 Case had
not been commenced; provided, however, that the Debtors and the Reorganized
Debtors reserve the right to file with Bankruptcy Court, on or before the Claims
Objection Deadline, an objection to any Claim or Interest with respect to which
the holder of such Claim or Interest has filed a proof of Claim or proof of
Interest, as applicable, in the Chapter 11 Case. The Debtors and the Reorganized
Debtors shall be authorized to, and shall, resolve all Disputed Claims and
Disputed Interests by withdrawing or settling such objections thereto, or by
litigating to judgment in the Bankruptcy Court or such other court having
jurisdiction the validity, nature, and/or amount thereof.
In addition, any Debtor, Reorganized Debtor or the holder of a
contingent or unliquidated Claim may, at any time, request that the Bankruptcy
Court estimate any contingent or unliquidated Claim pursuant to section 502(c)
of the Bankruptcy Code regardless of whether such Debtor or Reorganized Debtor
has previously objected to such Claim or whether the Bankruptcy Court has ruled
on any such objection, and the Bankruptcy Court will retain jurisdiction to
estimate any Claim at
PLAN-29
any time during litigation concerning any objection to any
Claim, including during the pendency of any appeal relating to any such
objection. In the event the Bankruptcy Court estimates any contingent or
unliquidated Claim, that estimated amount will constitute either the Allowed
amount of such Claim or a maximum limitation on such Claim, as determined by the
Bankruptcy Court. If the estimated amount constitutes a maximum limitation on
such Claim, the Debtors may elect to pursue any supplemental proceedings to
object to any ultimate payment on such Claim. All of the aforementioned Claims
objection, estimation and resolution procedures are cumulative and are not
necessarily exclusive of one another. Claims may be estimated and thereafter
resolved by any permitted mechanism.
B. No Distribution Pending Allowance
No payments or distributions will be made with respect to all or any
portion of a Disputed Claim or Disputed Interest unless and until all objections
to such Disputed Claim or Disputed Interest have been settled or withdrawn or
have been determined by Final Order, and the Disputed Claim or Disputed
Interest, or some portion thereof, has become an Allowed Claim or Interest.
C. Distributions After Allowance
To the extent that a Disputed Claim or Disputed Interest ultimately
becomes an Allowed Claim or Allowed Interest, a distribution will be made to the
holder of such Allowed Claim or Allowed Interest in accordance with the
provisions of the Plan. As soon as reasonably practicable after the date that
the order or judgment of the Bankruptcy Court or other applicable court of
competent jurisdiction allowing any Disputed Claim or Disputed Interest becomes
a Final Order, or the date upon which other final resolution has been reached to
Allow such Claim or Interest, the Disbursing Agent shall provide to the holder
of such Claim or Interest the distribution to which such holder is entitled
under the Plan. Notwithstanding the foregoing, the Disbursing Agent shall not be
required to make distributions more frequently than once every 180 days.
VIII.
TREATMENT OF CONTRACTS AND LEASES
A. Assumed Contracts and Leases
Except as otherwise provided in the Plan, or in any contract,
instrument, release, indenture or other agreement or document entered into in
connection with the Plan, as of the Consummation Date each Debtor shall be
deemed to have assumed each executory contract and unexpired lease to which it
is a party, unless such contract or lease (i) previously was assumed or rejected
by the Debtors, (ii) previously expired or terminated pursuant to its own terms
or (iii) is the subject of a motion to assume or reject filed on or before the
Confirmation Date. The Confirmation Order shall constitute an order of the
Bankruptcy Court under section 365 of the Bankruptcy Code approving the contract
and lease assumptions described above, as of the Consummation Date. The Debtors
reserve the right, at any time prior to the Confirmation Date, to seek to reject
any executory contract or unexpired lease to which any Debtor is a party.
Each executory contract and unexpired lease that is assumed and relates
to the use, ability to acquire or occupancy of real property shall include (i)
all modifications, amendments, supplements, restatements or other agreements
made directly or indirectly by any agreement, instrument or other document that
in any manner affect such executory contract or unexpired lease and (ii) all
executory contracts or unexpired leases appurtenant to the premises, including
all easements, licenses, permits, rights, privileges, immunities, options,
rights of first refusal, powers, uses, usufructs, reciprocal easement
agreements, vaults, tunnel or bridge agreements or franchises, and any other
interests in real estate or rights in rem related to such premises, unless any
of the foregoing agreements has been rejected pursuant to an order of the
Bankruptcy Court or is the subject of a motion to reject filed on or before the
Confirmation Date.
PLAN-30
B. Treatment of Change of Control Provisions
The entry of the Confirmation Order, consummation of the Plan, issuance
of New Securities under the Plan and/or any other acts taken to implement the
Plan shall not constitute a "change in control" under any provision of any
contract, agreement or other document which provides for the occurrence of any
event, the granting of any right, or any other change in the then-existing
relationship between the parties upon a "change in control" of any of the
Debtors; provided, however, that this Article VIII.B shall not apply to
contracts, agreements, plans, arrangements and documents relating to employment,
employee severance, salary continuation or employee retention, except that this
Article VIII.B shall apply to the Greenville Employment Agreements.
C. Payments Related to Assumption of Contracts and Leases
Any monetary amounts by which any executory contract or unexpired lease
to be assumed under the Plan is in default shall be satisfied, under section
365(b)(1) of the Bankruptcy Code, by Cure. If there is a dispute regarding (i)
the nature or amount of any Cure, (ii) the ability of a Reorganized Debtor or
any assignee to provide "adequate assurance of future performance" (within the
meaning of section 365 of the Bankruptcy Code) under the contract or lease to be
assumed or (iii) any other matter pertaining to assumption, Cure shall occur
following the entry of a Final Order of the Bankruptcy Court resolving the
dispute and approving the assumption or assumption and assignment, as the case
may be.
D. Claims Based on Rejection of Executory Contracts or Unexpired Leases
If the rejection by a Debtor, pursuant to the Plan or otherwise, of an
executory contract or unexpired lease gives rise to a Claim, a proof of Claim
must be served upon the appropriate Reorganized Debtor and its counsel within
thirty (30) days after the later of (i) notice of entry of the Confirmation
Order or (ii) other notice that the executory contract or unexpired lease has
been rejected. Any Claims not served within such time periods will be forever
barred from assertion against the respective Reorganized Debtor, its Estate and
its property.
E. Compensation and Benefit Plans and Treatment of Retirement Plan
All of the Debtors' programs, plans, agreements and arrangements
relating to employee compensation and benefits, including programs, plans,
agreements and arrangements subject to sections 1114 and 1129(a)(13) of the
Bankruptcy Code and including, without limitation, all savings plans, retirement
plans, healthcare plans, disability plans, severance plans, incentive plans,
life, accidental death and dismemberment insurance plans, and employment,
severance, salary continuation and retention agreements, other than the
Stock-Related Benefit Plans and the Greenville Employment Agreements, entered
into before the Petition Date and not since terminated, will be deemed to be,
and will be treated as though they are, executory contracts that are assumed
under Article VIII.A of the Plan, and the Debtors' obligations under such
programs, plans, agreements and arrangements will survive confirmation of the
Plan, except for executory contracts or plans that previously have been
rejected, are the subject of a motion to reject or have been specifically waived
by the beneficiaries of any plans or contracts. In addition, pursuant to the
requirements of section 1129(a)(13) of the Bankruptcy Code, the Plan provides
for the continuation of payment by the Debtors of all "retiree benefits," as
defined in section 1114(a) of the Bankruptcy Code, if any, at previously
established levels.
F. Indemnification of Directors, Officers and Managers
The Debtors' indemnification obligations in favor of their officers,
directors and Managers contained in the certificates of incorporation and bylaws
or other governing documents of the Debtors as of April 30, 2003 shall be
included in the amended and restated certificates of incorporation and bylaws or
other governing documents of the Reorganized Debtors. All Claims of the Debtors'
officers, directors and Managers for indemnity arising prior to the Petition
Date shall be deemed to be Unimpaired Class 4 General Unsecured Claims
hereunder, and all Claims of the Debtors' officers, directors and Managers for
indemnity arising on and after the Petition Date shall be deemed to be
Unimpaired Administrative Claims hereunder. Furthermore, and without limiting
the generality of Article VIII.A, the contractual indemnification agreements of
Chart with its officers, directors and Managers entered into as of August and
October 2002 shall be deemed and treated as executory contracts that are assumed
by the Reorganized Debtors pursuant to the Plan and section 365 of the
Bankruptcy Code as of the Consummation Date.
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ARTICLE IX.
ACCEPTANCE OR REJECTION OF THE PLAN
A. Classes Entitled To Vote
Class 2 Claims are Impaired under the Plan and, therefore, Class 2 is
entitled to vote to accept or reject the Plan. If the Solicitation Order is
entered, Class 7 will be deemed to have rejected the Plan and, therefore, will
not be entitled to vote to accept or reject the Plan. Classes 6, 8, 9 and 10
also are deemed to have rejected the Plan and, therefore, are not entitled to
vote to accept or reject the Plan. By operation of law, each Unimpaired Class of
Claims is deemed to have accepted the Plan and, therefore, is not entitled to
vote to accept or reject the Plan. Therefore Classes 1, 3, 4 and 5 are deemed to
have accepted the Plan.
B. Acceptance by Impaired Classes
An Impaired Class of Claims shall have accepted the Plan if (i) the
holders of at least two-thirds in amount of the Allowed Claims actually voting
in the Class have voted to accept the Plan, and (ii) the holders of more than
one-half in number of the Allowed Claims actually voting in the Class have voted
to accept the Plan, in each case not counting the vote of any holder designated
under section 1126(e) of the Bankruptcy Code. An Impaired Class of Interests
shall have accepted the Plan if the holders (other than any holder designated
under section 1126(e) of the Bankruptcy Code) of at least two-thirds in amount
of the Allowed Interests actually voting in such Class have voted to accept the
Plan.
C. Cramdown
To the extent necessary, the Debtors shall request confirmation of the
Plan, as it may be modified from time to time, under section 1129(b) of the
Bankruptcy Code. The Debtors reserve the right to modify the Plan to the extent,
if any, that confirmation pursuant to section 1129(b) of the Bankruptcy Code
requires modification.
ARTICLE X.
SECURITIES TO BE ISSUED
IN CONNECTION WITH THE PLAN
A. New Securities
On or before the Distribution Date, the Reorganized Debtors shall issue
for distribution in accordance with the provisions of the Plan the New Common
Stock, New Subsidiary Equity and New Warrants required for distribution pursuant
to the provisions hereof. All securities to be issued shall be deemed issued as
of the Consummation Date regardless of the date on which they are actually
distributed. All stock issued by any Reorganized Debtor pursuant to the
provisions of the Plan shall be deemed to be duly authorized and issued, fully
paid and nonassessable. The terms of the New Common Stock are summarized in
Exhibit B hereto, and the forms of the agreement and certificates evidencing the
New Warrants are attached hereto as Exhibit E.
B. Exemption from Registration
The issuance of the New Securities under the Plan shall be exempt from
registration under the Securities Act pursuant to section 1145 of the Bankruptcy
Code, except to the extent that any holders of New Securities may be deemed to
be "underwriters," as that term is defined in section 1145 of the Bankruptcy
Code.
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ARTICLE XI.
CONDITIONS PRECEDENT TO THE PLAN'S
CONFIRMATION AND CONSUMMATION
A. Conditions to Confirmation
The following are conditions precedent to confirmation of the Plan,
each of which must be satisfied or waived in accordance with Article XI.C below:
1. The proposed Confirmation Order shall be in form and substance
acceptable to the Debtors and the Senior Lenders.
2. The Reorganized Chart Certificate of Incorporation, the Reorganized
Chart Bylaws, the Investor Rights Agreement, the New Warrant Agreement and the
related form of warrant certificate shall be in form and substance satisfactory
to the Debtors and the Senior Lenders.
B. Conditions to Consummation Date
The following are conditions precedent to the occurrence of the
Consummation Date, each of which must be satisfied or waived in accordance with
Article XI.C below:
1. The Confirmation Order, in form and substance acceptable to the
Debtors and the Senior Lenders, confirming the Plan shall have been entered and
must provide, among other things, that:
a. the Debtors and Reorganized Debtors are authorized and directed
to take all actions necessary or appropriate to enter into, execute, implement
and consummate the contracts, instruments, releases, leases, indentures and
other agreements or documents created in connection with the Plan;
b. the provisions of the Confirmation Order are nonseverable and
mutually dependent;
c. all executory contracts or unexpired leases assumed or assumed
and assigned by the Debtors during the Chapter 11 Case or under the Plan shall
remain in full force and 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;
d. 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 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 and Interests under the Plan are for
good consideration and value;
e. except as expressly provided in the Plan or the 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 shall be 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 any of the Debtors that has either been assumed or
rejected in the Chapter 11 Case or pursuant to the Plan, (b) any obligation of
any of the Debtors incurred before the Confirmation Date or (c) any
PLAN-33
conduct of any 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;
f. the Plan does not provide for the liquidation of all or
substantially all of the property of the Debtors and its confirmation is not
likely to be followed by the liquidation of the Reorganized Debtors or the need
for further financial reorganization;
g. all Old Chart Common Stock, Old Subsidiary Equity and Other
Equity Rights shall be deemed cancelled effective upon the Consummation Date;
and
h. the New Common Stock, New Subsidiary Equity and New Warrants
issued under the Plan in exchange for Claims and Interests, as applicable, are
exempt from registration under the Securities Act pursuant to section 1145 of
the Bankruptcy Code, except to the extent that any holders of New Common Stock
or New Warrants may be deemed to be "underwriters," as that term is defined in
section 1145 of the Bankruptcy Code.
2. The Confirmation Order shall have become a Final Order.
3. The Reorganized Chart Certificate of Incorporation, the Reorganized
Chart Bylaws, the Investor Rights Agreement and the New Warrant Agreement, in
form and substance satisfactory to the Debtors and the Senior Lenders, shall
have been executed and delivered, and all conditions precedent thereto shall
have been satisfied or waived by the parties thereto.
4. The New Credit Agreements and all documents to be executed in
connection with the New Credit Agreements, in form and substance satisfactory to
the Debtors and the Senior Lenders, shall have been executed and delivered, and
all conditions precedent thereto shall have been satisfied or waived by the
parties thereto.
5. The Debtors shall have executed and delivered all documents
necessary to effectuate the issuance of the New Common Stock and New Warrants.
6. All authorizations, consents and regulatory approvals required, if
any, in connection with the consummation of the Plan shall have been obtained.
7. All other actions, documents and agreements necessary to implement
the Plan shall have been effected or executed.
8. The Senior Lenders and the members of the board of directors of
Chart as of the Consummation Date shall have executed and delivered mutual
releases in form and substance satisfactory to all signatories thereto.
C. Waiver of Conditions
Each of the conditions set forth in Articles XI.A and XI.B above may be
waived in whole or in part by the Debtors, with the written consent of the
Senior Lenders, without any notice to other parties in interest or the
Bankruptcy Court and without a hearing. The failure to satisfy or waive any
condition to the Consummation Date may be asserted by the Debtors regardless of
the circumstances giving rise to the failure of such condition to be satisfied.
The failure of the Debtors to exercise any of the foregoing rights shall not be
deemed a waiver of any other rights, and each such right shall be deemed an
ongoing right that may be asserted at any time.
PLAN-34
ARTICLE XII.
MODIFICATIONS AND AMENDMENTS
The Debtors may alter, amend or modify the Plan or any exhibits hereto
under section 1127(a) of the Bankruptcy Code at any time prior to the
Confirmation Date with the consent of the Senior Lenders. The Debtors reserve
the right to include any amended exhibits in the Plan Supplement. After the
Confirmation Date and prior to substantial consummation of the Plan, as defined
in section 1101(2) of the Bankruptcy Code, the Debtors may, under section
1127(b) of the Bankruptcy Code, with the consent of the Senior Lenders,
institute proceedings in the Bankruptcy Court to remedy any defect or omission
or reconcile any inconsistencies in the Plan, the Disclosure Statement or the
Confirmation Order, and to accomplish such matters as may be necessary to carry
out the purposes and effects of the Plan so long as such proceedings do not
materially adversely affect the treatment of holders of Claims or Interests
under the Plan; provided, however, that prior notice of such proceedings shall
be served in accordance with the Bankruptcy Rules or order of the Bankruptcy
Court.
ARTICLE XIII.
RETENTION OF JURISDICTION
Under sections 105(a) and 1142 of the Bankruptcy Code, and
notwithstanding the Plan's confirmation and the occurrence of the Consummation
Date, the Bankruptcy Court shall retain exclusive jurisdiction (except with
respect to the purposes described under clause (A) below, with respect to which
jurisdiction shall not be exclusive) over all matters arising out of or related
to the Chapter 11 Case and the Plan, to the fullest extent permitted by law,
including jurisdiction to:
A. Determine any and all objections to the allowance of Claims or
Interests;
B. Determine any and all motions to estimate Claims at any time,
regardless of whether the Claim to be estimated is the subject of a pending
objection, a pending appeal, or otherwise;
C. Determine any and all motions to subordinate Claims or Interests at
any time and on any basis permitted by applicable law;
D. Hear and determine all Professional Fee Claims and other
Administrative Claims;
E. Hear and determine all matters with respect to the assumption or
rejection of any executory contract or unexpired lease to which a Debtor is a
party or with respect to which a Debtor may be liable, including, if necessary,
the nature or amount of any required Cure or the liquidation of any Claims
arising therefrom;
F. Hear and determine any and all adversary proceedings, motions,
applications and contested or litigated matters arising out of, under or related
to, the Chapter 11 Case;
G. Enter such orders as may be necessary or appropriate to execute,
implement or consummate the provisions of the Plan and all contracts,
instruments, releases and other agreements or documents created in connection
with the Plan, the Disclosure Statement or the Confirmation Order;
H. Hear and determine disputes arising in connection with the
interpretation, implementation, consummation or enforcement of the Plan and all
contracts, instruments and other agreements executed in connection with the
Plan;
I. Hear and determine any request to modify the Plan or to cure any
defect or omission or reconcile any inconsistency in the Plan or any order of
the Bankruptcy Court;
J. Issue and enforce injunctions or other orders, or take any other
action that may be necessary or appropriate to restrain any interference with
the implementation, consummation or enforcement of the Plan or the Confirmation
Order;
PLAN-35
K. Enter and implement such orders as may be necessary or appropriate
if the Confirmation Order is for any reason reversed, stayed, revoked, modified
or vacated;
L. Hear and determine any matters arising in connection with or
relating to the Plan, the Disclosure Statement, the Confirmation Order or any
contract, instrument, release or other agreement or document created in
connection with the Plan, the Disclosure Statement or the Confirmation Order;
M. Enforce all orders, judgments, injunctions, releases, exculpations,
indemnifications and rulings entered in connection with the Chapter 11 Case;
N. Recover all assets of the Debtors and property of the Debtors'
Estates, wherever located;
O. Hear and determine matters concerning state, local and federal taxes
in accordance with sections 346, 505 and 1146 of the Bankruptcy Code;
P. Hear and determine all disputes involving the existence, nature or
scope of the Debtors' discharge;
Q. Hear and determine such other matters as may be provided in the
Confirmation Order or as may be authorized under or not inconsistent with,
provisions of the Bankruptcy Code; and
R. Enter a final decree closing the Chapter 11 Case.
ARTICLE XIV.
MISCELLANEOUS PROVISIONS
A. Corporate Action
Prior to, on or after the Consummation Date (as appropriate), all
matters expressly provided for under the Plan that would otherwise require
approval of the stockholders, directors, partners, members or Managers of any
Debtor or Reorganized Debtor shall be deemed to have occurred and shall be in
effect prior to, on or after the Consummation Date (as appropriate) pursuant to
the applicable general corporation or other applicable business organization law
of the states under which the Debtors or the Reorganized Debtors are
incorporated, organized or formed without any requirement of further action by
the stockholders, directors, partners, members or Managers of the Debtors or the
Reorganized Debtors.
B. Professional Fee Claims
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 or any Committee (if
appointed) prior to the Consummation Date must be filed with the Bankruptcy
Court and served on the Reorganized Debtors and their counsel no later than
sixty (60) days after the Consummation Date, unless otherwise ordered by the
Bankruptcy Court. Objections to applications of such Professionals or other
entities for compensation or reimbursement of costs and expenses must be filed
and served on the Reorganized Debtors and their counsel and the requesting
Professional or other entity no later than forty-five (45) days (or such longer
period as may be allowed by order of the Bankruptcy Court) after the date on
which the applicable application for compensation or reimbursement was served.
The Reorganized Debtors may pay charges that they incur on and after the
Consummation Date for Professionals' fees, disbursements, expenses or related
support services in the ordinary course of business and without application to
the Bankruptcy Court as long as such payments are in accordance with the New
Credit Agreements.
PLAN-36
C. Payment of Statutory Fees
All fees payable under section 1930 of title 28 of the United States
Code, as determined by the Bankruptcy Court at the Confirmation Hearing, shall
be paid on or before the Consummation Date. All such fees that arise after the
Consummation Date but before the closing of the Chapter 11 Case shall be paid by
the Reorganized Debtors.
D. Severability of Plan Provisions
If, prior to the Confirmation Date, any term or provision of the Plan
is held by the Bankruptcy Court to be invalid, void or unenforceable, the
Bankruptcy Court, at the request of the Debtors, shall have the power to alter
and interpret such term or provision to make it valid or enforceable to the
maximum extent practicable, consistent with the original purpose of the term or
provision held to be invalid, void or unenforceable, and such term or provision
shall then be applicable as altered or interpreted. Notwithstanding any such
holding, alteration or interpretation, the remainder of the terms and provisions
of the Plan shall remain in full force and effect and shall in no way be
affected, impaired or invalidated by such holding, alteration or interpretation.
The Confirmation Order shall constitute a judicial determination and shall
provide that each term and provision of the Plan, as it may have been altered or
interpreted in accordance with the foregoing, is valid and enforceable pursuant
to its terms.
E. Consent of Senior Lenders
Wherever the consent, agreement or acceptance of the Senior Lenders is
referred to in the Plan (other than with respect to voting for the purposes of
section 1126(c) of the Bankruptcy Code), it shall mean the Agent plus Senior
Lenders holding more than fifty percent (50%) in aggregate principal amount of
the Senior Lender Claims.
F. Successors and Assigns
The rights, benefits and obligations of any Person named or referred to
in the Plan shall be binding on, and shall inure to the benefit of, any heir,
executor, administrator, successor or assign of that Person.
G. Discharge of the Debtors
Except as otherwise provided in the Plan or in the Confirmation Order,
the rights afforded under the Plan and the treatment of Claims and Interests
under the Plan shall be in exchange for, and in complete satisfaction,
settlement, discharge and release of, all Claims and Interests, regardless of
whether any property shall have been distributed or retained pursuant to the
Plan on account of or in exchange for such Claims and Interests. Upon the
Consummation Date, except as provided in the Plan or the Confirmation Order, (i)
the Debtors, and each of them, shall be deemed discharged and released under
section 1141(d)(1)(A) of the Bankruptcy Code from any and all Claims, including,
but not limited to, demands and liabilities that arose before the Confirmation
Date, and all debts of the kind specified in sections 502(g), 502(h) or 502(i)
of the Bankruptcy Code, whether or not (a) a proof of Claim based upon such debt
is filed or deemed filed under section 501 of the Bankruptcy Code, (b) a Claim
based upon such debt is allowed under section 502 of the Bankruptcy Code or (c)
the holder of a Claim based upon such debt accepted the Plan, and (ii) all
Interests of the holders of (a) Old Chart Common Stock, (b) Old Subsidiary
Equity and (c) Other Equity Rights shall be terminated.
As of the Confirmation Date, except as provided in the Plan or the
Confirmation Order, all Persons shall be precluded from asserting against the
Debtors or the Reorganized Debtors, any other or further claims, debts, rights,
causes of action, liabilities or equity interests relating to the Debtors based
upon any act, omission, transaction or other activity of any nature that
occurred prior to the Confirmation Date. In accordance with the foregoing,
except as provided in the Plan or the Confirmation Order, the Confirmation Order
shall be a judicial determination of discharge of all such Claims and other
debts and liabilities against the Debtors and termination of Interests of the
holders of Old Chart Common Stock, Old Subsidiary Equity and Other Equity
Rights, pursuant to sections 524 and 1141 of the Bankruptcy Code, and such
discharge shall void any judgment obtained against the Debtors at any time, to
the extent that such judgment relates to a discharged Claim or terminated
Interest.
PLAN-37
H. Releases
1. Releases by Debtors
As of the Consummation Date, for good and valuable consideration, the
adequacy of which is hereby confirmed, the Debtors, their Estates and
Reorganized Debtors shall be deemed to forever release, waive and discharge all
claims, obligations, suits, defenses, judgments, damages, demands, debts,
rights, causes of action and liabilities (other than the rights of the Debtors
and the Reorganized Debtors to enforce the Plan and the contracts, instruments,
releases, indentures and other agreements or documents delivered thereunder),
whether liquidated or unliquidated, fixed or contingent, matured or unmatured,
known or unknown, foreseen or unforeseen, then existing or thereafter arising,
in law, equity or otherwise, that are based in whole or in part on any act,
omission, transaction, event or other occurrence taking place on or prior to the
Consummation Date in any way relating to the Debtors, the Reorganized Debtors,
the Chapter 11 Case, the Plan or the Disclosure Statement, and that could have
been asserted by or on behalf of the Debtors, their Estates or the Reorganized
Debtors, as of the Petition Date or thereafter, against (i) the Debtors' current
and former directors, officers and Managers (acting in such capacity or as the
Debtors' agents or employees) and professionals, or any of their successors or
assigns (acting in such capacity) and (ii) the Senior Lenders (acting in such
capacity) and their respective current and former members, officers, Managers,
directors, employees, equity holders, partners, affiliates, subsidiaries,
advisors, attorneys, agents or representatives, or any of their successors or
assigns (acting in such capacity), except for those persons and entities listed
in Schedule 2, which shall not be released hereunder.
2. Releases by Holders of Claims and Interests
As of the Consummation Date, for good and valuable consideration, the
adequacy of which is hereby confirmed, each holder of a Claim or Interest,
solely in its capacity as such, that affirmatively votes in favor of the Plan
shall have agreed to forever release, waive and discharge all claims, defenses,
obligations, suits, judgments, damages, demands, debts, rights, causes of action
and liabilities (other than the rights to enforce the Plan and the contracts,
instruments, releases, indentures and other agreements or documents delivered
thereunder), whether liquidated or unliquidated, fixed or contingent, matured or
unmatured, known or unknown, foreseen or unforeseen, then existing or thereafter
arising, in law, equity or otherwise, that are based in whole or in part on any
act, omission, transaction, event or other occurrence taking place on or prior
to the Consummation Date in any way relating to the Debtors, the Reorganized
Debtors, the Chapter 11 Case, the Plan or the Disclosure Statement, against: (i)
the Debtors or the Reorganized Debtors or (ii) the Debtors' current or former
directors, officers, Managers, employees, agents or professionals (acting in
such capacity) as of the Petition Date.
I. Injunction
Except as provided in the Plan or the Confirmation Order, as of the
Confirmation Date, subject to the occurrence of the Consummation Date, all
entities that have held, currently hold or may hold a Claim or other debt or
liability that is discharged or an Interest or other right of an equity security
holder that is terminated pursuant to the terms of the Plan are permanently
enjoined from taking any of the following actions against the Debtors, the
Reorganized Debtors or their property on account of any such discharged Claims,
debts or liabilities or terminated Interests or rights: (i) commencing or
continuing, in any manner or in any place, any action or other proceeding; (ii)
enforcing, attaching, collecting or recovering in any manner any judgment,
award, decree or order; (iii) creating, perfecting or enforcing any lien or
encumbrance; (iv) asserting a setoff, right of subrogation or recoupment of any
kind against any debt, liability or obligation due to the Debtors; and (v)
commencing or continuing any action, in any manner, in any place that does not
comply with or is inconsistent with the provisions of the Plan.
As of the Consummation Date, all entities that have held, currently
hold or may hold a Claim, defense, obligation, suit, judgment, demand, debt,
right, cause of action or liability that is released pursuant to the Plan are
permanently enjoined from taking any of the following actions on account of such
released Claims, obligations, suits, judgments, demands, debts, rights, causes
of action or liabilities: (i) commencing or continuing, in any manner or in any
place, any action or other proceeding; (ii) enforcing, attaching, collecting or
recovering in any manner any judgment, award, decree or order; (iii) creating,
perfecting or enforcing any lien or encumbrance: (iv) asserting a setoff, right
of subrogation or recoupment of any kind against any debt, liability or
obligation due to any released entity; and (v) commencing or continuing any
action, in any manner, in any place that does not comply with or is inconsistent
with the provisions of the Plan.
PLAN-38
By accepting distribution pursuant to the Plan, each holder of an
Allowed Claim or Allowed Interest receiving distributions pursuant to the Plan
shall be deemed to have specifically consented to the injunctions set forth in
this Article XIV.I.
J. Exculpation and Limitation of Liability
The Reorganized Debtors, the Debtors, the Estates, any Committee, the
Senior Lenders, and any and all of their respective current or former members,
officers, Managers, directors, employees, equity holders, partners, affiliates,
advisors, attorneys, agents or representatives, or any of their successors or
assigns, shall not have or incur any liability to any holder of a Claim or an
Interest, or any other party in interest, or any of their respective members,
officers, directors, employees, equity holders, partners, affiliates, advisors,
attorneys, agents or representatives, or any of their successors or assigns, for
any act or omission in connection with, relating to or arising out of, the
administration of the Chapter 11 Case, the negotiation of the terms of the Plan,
the solicitation of acceptances of the Plan, the pursuit of confirmation of the
Plan, the consummation of the Plan, or the administration of the Plan or the
property to be distributed under the Plan, except for their willful misconduct
or gross negligence, and in all respects shall be entitled to reasonably rely
upon the advice of counsel with respect to their duties and responsibilities
with respect to the Chapter 11 Case and the Plan.
Notwithstanding any other provision of the Plan, but without limiting
the releases provided in the Plan or affecting the status or treatment of any
Claim Allowed pursuant to the Plan, no holder of a Claim or Interest, no other
party in interest, none of their respective members, officers, directors,
employees, equity holders, partners, affiliates, subsidiaries, advisors,
attorneys, agents or representatives, and no successors or assigns of the
foregoing, shall have any right of action against the Reorganized Debtors, the
Debtors, the Estates, any Committee, the Senior Lenders, or any of their
respective current or former members, officers, Managers, directors, employees,
equity holders, partners, affiliates, subsidiaries, advisors, attorneys, agents
or representatives, or any of their successors or assigns, for any act or
omission in connection with, relating to or arising out of, the administration
of the Chapter 11 Case, the solicitation of acceptances of the Plan, the pursuit
of confirmation of the Plan, the consummation of the Plan, or the administration
of the Plan or the property to be distributed under the Plan, except for their
willful misconduct or gross negligence.
K. Waiver of Enforcement of Subordination
The classification and manner of satisfying all Claims and Interests
under the Plan takes into consideration all subordination rights, if any,
whether arising by contract or under general principles of equitable
subordination, section 510(b) or 510(c) of the Bankruptcy Code, or otherwise.
All subordination rights that a holder of a Claim or Interest may have with
respect to any distribution to be made pursuant to the Plan will be discharged
and terminated, and all actions related to the enforcement of such subordination
rights will be permanently enjoined. Accordingly, distributions pursuant to the
Plan to holders of Allowed Claims or Allowed Interests will not be subject to
payment to a beneficiary of such terminated subordination rights, or to levy,
garnishment, attachment or other legal process by a beneficiary of such
terminated subordination rights. Pursuant to Bankruptcy Rule 9019 and in
consideration of the distributions and other benefits provided under the Plan,
the provisions of the Plan will constitute a good faith compromise and
settlement of all claims or controversies relating to the subordination rights
that a holder of a Claim or Interest may have or any distribution to be made
pursuant to the Plan on account of or in exchange for such Claim or Interest.
Entry of the Confirmation Order will constitute the Bankruptcy Court's approval,
as of the Consummation Date, of the compromise or settlement of all such claims
or controversies and the Bankruptcy Court's finding that such compromise or
settlement is in the best interests of the Debtors, the Reorganized Debtors,
their respective properties, and the holder of Claims and Interests, and is
fair, equitable and reasonable.
L. Term of Injunctions or Stays
Unless otherwise provided herein or in the Confirmation Order, all
injunctions or stays in effect in the Chapter 11 Case under sections 105 or 362
of the Bankruptcy Code or any order of the Bankruptcy Court, and extant on the
Confirmation Date (excluding any injunctions or stays contained in the Plan or
the Confirmation Order), shall remain in full force and effect until the
Consummation Date. All injunctions or stays contained in the Plan or the
Confirmation Order shall remain in full force and effect in accordance with
their terms.
PLAN-39
M. Binding Effect
The Plan shall be binding upon and inure to the benefit of the Debtors,
all present and former holders of Claims against and Interests in the Debtors,
whether or not such holders will receive or retain any property or interest in
property under the Plan, their respective successors and assigns, including,
without limitation, the Reorganized Debtors, and all other parties in interest
in the Chapter 11 Case.
N. Revocation, Withdrawal or Non-Consummation
The Debtors reserve the right to revoke or withdraw the Plan at any
time prior to the Confirmation Date and to file other plans of reorganization,
in order to implement an Alternative Transaction or for any other reason. If the
Debtors revoke or withdraw the Plan, or if confirmation or consummation of the
Plan does not occur, then (i) the Plan shall be null and void in all respects,
(ii) the Lender Settlement and any other settlement or compromise embodied in
the Plan (including the fixing or limiting to an amount any Claim or Class of
Claims), assumption or rejection of executory contracts or leases effected by
the Plan, and any document or agreement executed pursuant to the Plan shall be
deemed null and void, and (iii) nothing contained in the Plan, and no acts taken
in preparation for consummation of the Plan, shall (a) constitute or be deemed
to constitute a waiver or release of any Claims by or against, or any Interests
in, the Debtors or any other Person, (b) prejudice in any manner the rights of
the Debtors or any Person in any further proceedings involving the Debtors or
(c) constitute an admission of any sort by the Debtors or any other Person. If
this Plan is not confirmed, then the treatment of the Senior Lender Claims under
this Plan (a) shall not be deemed an admission of any kind by the Senior Lenders
or a waiver of any rights or claims by the Senior Lenders, and (b) shall have no
collateral estoppel, presumptive or evidentiary effect of any kind in any other
matter or proceeding in this Chapter 11 Case or in any chapter 7 proceedings
with respect to the Debtors.
O. Committees
On the Consummation Date, the duties of any Committee (if appointed)
shall terminate, except with respect to any application for compensation or
reimbursement of costs and expenses in connection with services rendered prior
to the Consummation Date.
P. Plan Supplement
Any and all exhibits, lists or schedules referred to herein but not
filed with the Plan shall be contained in the Plan Supplement and filed with the
Clerk of the Bankruptcy Court at least five (5) days prior to the date of the
commencement of the Confirmation Hearing. Thereafter, any Person may examine the
Plan Supplement in the office of the Clerk of the Bankruptcy Court during normal
court hours. Holders of Claims or Interests may obtain a copy of the Plan
Supplement upon written request to the Debtors in accordance with Article XIV.Q
hereof.
Q. Notices to Debtors
Any notice, request or demand required or permitted to be made or
provided to or upon a Debtor or a Reorganized Debtor under the Plan shall be (i)
in writing, (ii) served by (a) certified mail, return receipt requested, (b)
hand delivery, (c) overnight delivery service, (d) first class mail or (e)
facsimile transmission, and (iii) deemed to have been duly given or made when
actually delivered or, in the case of notice by facsimile transmission, when
received and telephonically confirmed, addressed as follows:
CHART INDUSTRIES, INC.
5885 Landerbrook Drive, Suite 205
Cleveland, Ohio 44124
Attn: Michael F. Biehl
Tel: (440) 753-1490
Fax: (440) 753-1491
PLAN-40
with copies to:
CALFEE, HALTER & GRISWOLD LLP
1400 McDonald Investment Center
800 Superior Avenue
Cleveland, Ohio 44114-2688
Attn: James M. Lawniczak
Tel: (216) 622-8200
Fax: (216) 241-0816
- and -
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
One Rodney Square
P.O. Box 636 Wilmington, Delaware 19899-0636
Attn: Mark S. Chehi
Tel: (302) 651-3000
Fax: (302) 651-3001
R. Governing Law
Unless a rule of law or procedure is supplied by federal law (including
the Bankruptcy Code and Bankruptcy Rules), (i) the laws of the State of Delaware
shall govern the construction and implementation of the Plan, (ii) except as
expressly provided otherwise in any agreements, documents and instruments
executed in connection with the Plan, the laws of the State of Delaware shall
govern the construction and implementation of such agreements, documents and
instruments, and (iii) the laws of the state of incorporation, organization or
formation of each Debtor shall govern corporate governance matters with respect
to such Debtor, in each case without giving effect to the principles of
conflicts of law thereof.
S. Prepayment
Except as otherwise provided in the Plan or the Confirmation Order, the
Debtors shall have the right to prepay, without penalty, all or any portion of
an Allowed Claim at any time; provided, however, that any such prepayment shall
not be violative of, or otherwise prejudice, the relative priorities and
parities among the Classes of Claims.
T. Section 1125(e) of the Bankruptcy Code
As of the Confirmation Date, the Debtors shall be deemed to have
solicited acceptances of the Plan in good faith and in compliance with the
applicable provisions of the Bankruptcy Code. The Debtors and each of their
respective affiliates, agents, directors, officers, Managers, employees,
investment bankers, financial advisors, attorneys and other professionals have
participated in good faith and in compliance with the applicable provisions of
the Bankruptcy Code in the offer and issuance of the New Securities under the
Plan, and therefore are not, and on account of such offer, issuance and
solicitation will not be, liable at any time for the violation of any applicable
law, rule or regulation governing the solicitation of acceptances or rejections
of the Plan or the offer and issuance of New Securities under the Plan.
PLAN-41
Dated: Wilmington, Delaware
September 3, 2003
CHART INDUSTRIES, INC.
By: /s/ Michael F. Biehl
----------------------------------------------
Michael F. Biehl
Chief Financial Officer and Treasurer
CAIRE INC.
By: /s/ Michael F. Biehl
----------------------------------------------
Michael F. Biehl
Chief Financial Officer and Treasurer
CHART ASIA, INC.
By: /s/ Michael F. Biehl
----------------------------------------------
Michael F. Biehl
Chief Financial Officer and Treasurer
CHART HEAT EXCHANGERS LIMITED PARTNERSHIP
By: CHART MANAGEMENT COMPANY, INC., its general partner
By: /s/ Michael F. Biehl
----------------------------------------------
Michael F. Biehl
Chief Financial Officer and Treasurer
CHART INC.
By: /s/ Michael F. Biehl
----------------------------------------------
Michael F. Biehl
Chief Financial Officer and Treasurer
CHART INTERNATIONAL HOLDINGS, INC.
By: /s/ Michael F. Biehl
----------------------------------------------
Michael F. Biehl
Chief Financial Officer and Treasurer
CHART INTERNATIONAL, INC.
By: /s/ Michael F. Biehl
----------------------------------------------
Michael F. Biehl
Chief Financial Officer and Treasurer
CHART LEASING, INC.
By: /s/ Michael F. Biehl
----------------------------------------------
Michael F. Biehl
Chief Financial Officer and Treasurer
PLAN-42
CHART MANAGEMENT COMPANY, INC.
By: /s/ Michael F. Biehl
----------------------------------------------
Michael F. Biehl
Chief Financial Officer and Treasurer
COOLTEL, INC.
By: /s/ Michael F. Biehl
----------------------------------------------
Michael F. Biehl
Chief Financial Officer and Treasurer
GTC OF CLARKSVILLE, LLC (f/k/a GREENVILLE TUBE, LLC)
By: /s/ Michael F. Biehl
----------------------------------------------
Michael F. Biehl
Assistant Treasurer
NEXGEN FUELING, INC.
By: /s/ Michael F. Biehl
----------------------------------------------
Michael F. Biehl
Chief Financial Officer and Treasurer
Debtors and Debtors-in-Possession
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
Counsel to Chart Industries, Inc., et al.,
Debtors and Debtors-in-Possession
By: /s/ Mark S. Chehi
--------------------------------------
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
CALFEE, HALTER & GRISWOLD LLP
Special Corporate Counsel to Chart Industries, Inc., et al.,
Debtors and Debtors-in-Possession
By: /s/ Matthew J. Kablen
--------------------------------------
James M. Lawniczak
Matthew J. Klaben
1400 McDonald Investment Center
800 Superior Avenue
Cleveland, Ohio 44114-2688
(216) 622-8200
PLAN-43
EXHIBIT A-1
TO
JOINT PREPACKAGED REORGANIZATION PLAN
OF CHART INDUSTRIES, INC. AND CERTAIN SUBSIDIARIES
REORGANIZED CHART INDUSTRIES, INC. CERTIFICATE OF INCORPORATION
(Filed with Plan Supplement to Joint Prepackaged Reorganization
Plan of Chart Industries, Inc. and Certain Subsidiaries (Docket No. 97))
EXHIBIT A-2
TO
JOINT PREPACKAGED REORGANIZATION PLAN
OF CHART INDUSTRIES, INC. AND CERTAIN SUBSIDIARIES
REORGANIZED CHART INDUSTRIES, INC. BYLAWS
(Filed with Plan Supplement to Joint Prepackaged Reorganization
Plan of Chart Industries, Inc. and Certain Subsidiaries (Docket No. 97))
EXHIBIT B
TO
JOINT PREPACKAGED REORGANIZATION PLAN
OF CHART INDUSTRIES, INC. AND CERTAIN SUBSIDIARIES
DESCRIPTION OF NEW COMMON STOCK
The principal terms of the New Common Stock to be issued by
Reorganized Chart under the Plan shall be as follows:
Authorization: 9,500,000 shares of common stock
Initial Issuance: 5,325,331 shares of common stock
Reserve: 4,174,669 shares of common stock
Par Value: $.01 per share
Voting Rights: One vote per share
Dividends: Payable at the discretion of the board of directors
of Reorganized Chart.
Conversion Rights: None
Splits and Adjustments: Generally, arithmetic splits, combinations, etc.
are proportionately treated.
Corporate Governance: Board of Directors consists of seven (7) members,
which shall include: (a) six (6) members to be
designated by the Senior Lenders, one of which
shall be the chief executive officer of Reorganized
Chart, and at least one of which shall be an
independent director, and (b) one (1) member to be
designated by the current board of directors of
Chart, who shall be appointed and serve during the
Designee Term.
Restrictions on Transfer: None (other than restrictions imposed by applicable
state and federal securities laws), unless a
stockholder, at its sole discretion, becomes a
party to the Investor Rights Agreement that some
shareholders may enter into in connection with the
consummation of the Plan, which is expected to
provide for certain restrictions on transfer
applicable to the parties thereto, including
certain rights of first refusal and tag-along
rights.
EXHIBIT C-1
TO
JOINT PREPACKAGED REORGANIZATION PLAN
OF CHART INDUSTRIES, INC. AND CERTAIN SUBSIDIARIES
FORM OF AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
(Filed with Second Plan Supplement to Joint Prepackaged Reorganization
Plan of Chart Industries, Inc. and Certain Subsidiaries (Docket No. 114))
EXHIBIT C-2
TO
JOINT PREPACKAGED REORGANIZATION PLAN
OF CHART INDUSTRIES, INC. AND CERTAIN SUBSIDIARIES
FORM OF NEW TERM CREDIT AGREEMENT
(Filed with Second Plan Supplement to Joint Prepackaged Reorganization
Plan of Chart Industries, Inc. and Certain Subsidiaries (Docket No. 114))
EXHIBIT C-3
TO
JOINT PREPACKAGED REORGANIZATION PLAN
OF CHART INDUSTRIES, INC. AND CERTAIN SUBSIDIARIES
FORM OF COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT
(Filed with Second Plan Supplement to Joint Prepackaged Reorganization
Plan of Chart Industries, Inc. and Certain Subsidiaries (Docket No. 114))
EXHIBIT C-4
TO
JOINT PREPACKAGED REORGANIZATION PLAN
OF CHART INDUSTRIES, INC. AND CERTAIN SUBSIDIARIES
FORM OF AMENDED AND RESTATED SECURITY AGREEMENT
(Filed with Second Plan Supplement to Joint Prepackaged Reorganization
Plan of Chart Industries, Inc. and Certain Subsidiaries (Docket No. 114))
EXHIBIT D
TO
JOINT PREPACKAGED REORGANIZATION PLAN
OF CHART INDUSTRIES, INC. AND CERTAIN SUBSIDIARIES
FORM OF INVESTOR RIGHTS AGREEMENT
(Filed with Plan Supplement to Joint Prepackaged Reorganization
Plan of Chart Industries, Inc. and Certain Subsidiaries (Docket No. 97))
EXHIBIT E
TO
JOINT PREPACKAGED REORGANIZATION PLAN
OF CHART INDUSTRIES, INC. AND CERTAIN SUBSIDIARIES
FORM OF NEW WARRANT AGREEMENT AND WARRANT CERTIFICATE
(Filed with Plan Supplement to Joint Prepackaged Reorganization
Plan of Chart Industries, Inc. and Certain Subsidiaries (Docket No. 97))
SCHEDULE 1
TO
JOINT PREPACKAGED REORGANIZATION PLAN
OF CHART INDUSTRIES, INC. AND CERTAIN SUBSIDIARIES
NON-EXCLUSIVE SCHEDULE OF RETAINED CLAIMS AND CAUSES OF ACTION
(Filed with Plan Supplement to Joint Prepackaged Reorganization
Plan of Chart Industries, Inc. and Certain Subsidiaries (Docket No. 97))
SCHEDULE 2
TO
JOINT PREPACKAGED REORGANIZATION PLAN
OF CHART INDUSTRIES, INC. AND CERTAIN SUBSIDIARIES
SCHEDULE OF PARTIES NOT RELEASED PURSUANT TO ARTICLE XIV.H
(Filed with Plan Supplement to Joint Prepackaged Reorganization
Plan of Chart Industries, Inc. and Certain Subsidiaries (Docket No. 97))