IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re: )
) Chapter 11
PLANET HOLLYWOOD )
INTERNATIONAL, INC., ET AL. ) Case No. 99-3612 (JJF)
)
Debtors. ) (Jointly Administered)
ORDER CONFIRMING THE FIRST AMENDED JOINT PLAN OF
REORGANIZATION DATED DECEMBER 13, 1999 OF PLANET HOLLYWOOD
INTERNATIONAL, INC. AND CERTAIN OF ITS SUBSIDIARIES
---------------------------------------------------
Planet Hollywood International, Inc. ("PHI") and twenty-five of its
affiliates that are debtors and debtors-in-possession herein (collectively with
PHI, the "Debtors") having filed their First Amended Joint Plan of
Reorganization dated December 13, 1999 (the "Plan") in accordance with Section
1121 of Title 11 of the United States Code (the "Bankruptcy Code"), 11 U.S.C.
ss.1121, and their First Amended Disclosure Statement pursuant to Section 1125
of the Bankruptcy Code relating to the Plan dated December 13, 1999 (the
"Disclosure Statement"); and the Court by order dated December 14, 1999 (the
"December 14 Order") having approved the Disclosure Statement as containing
adequate information, and the December 14 Order having, INTER ALIA, (i) approved
the procedures for the solicitation and tabulation of votes to accept or reject
the Plan, (ii) established deadlines for voting on and objecting to the Plan,
and (iii) established January 20, 2000 as the date for commencement of the
hearing, pursuant to Section 1129 of the Bankruptcy Code, 11 U.S.C. ss.1129, to
consider confirmation of the Plan (the "Confirmation Hearing"); and the
transmittal of materials to Holders(1) of Claims, Interests and other
parties-in-interest, and the solicitation of acceptances from Holders of
Claims in Class
------------------------
(1) All capitalized terms not otherwise defined herein shall have the meanings
ascribed to such terms in the Plan or, to the extent not inconsistent
therewith, in the December 14 Order.
<PAGE>
5 and Class 6, having been made within the time and in the manner required by
the December 14 Order; and affidavits of publication having been filed with the
Court evidencing that the Confirmation Procedures Notice was published in
accordance with the provisions of the December 14 Order (the "Publication
Affidavits"); and an affidavit of service having been filed with respect to the
mailing of the Confirmation Procedures Notice (the "Mailing Affidavit"); and
objections to confirmation of the Plan having been filed by (i) Simon Property
Group, L.P. ("Simon")(subsequently withdrawn), (ii) 270, L.P. ("270")
(subsequently withdrawn), (iii) M. Caransa, b.v. ("Caransa")(subsequently
withdrawn), (iv) Wilroad Associates Limited Partnership ("Wilroad"), (v) State
of New Jersey, Division of Taxation ("NJ Tax Division"), (vi) United States of
America for the Internal Revenue Service ("IRS"), (vii) Stanley Goldich
("Goldich")(subsequently withdrawn in part), (viii) Joseph Mele
("Mele")(subsequently withdrawn); (ix) Al O'Rourke ("O'Rourke"), (x) 601 Pine
Street, L.P. ("601") and (xi) Karen Hojniak (collectively, the "Confirmation
Objections"); and the Court having considered and approved the Stipulation
between the Debtors and America Europe Asia International Trade and Management
Consultants, Ltd. ("AEA") (the "AEA Stipulation") providing, INTER ALIA, for AEA
to vote its $7,000,000 Class 6 Claim in favor of the Plan; and 270 having
elected to change its vote in Class 6 from a rejection to an acceptance of the
Plan; and the Debtors having moved for modification of the Plan pursuant to 11
U.S.C. ss. 1127(a) (the "Modification Motion"); and a hearing having been held
on January 20, 2000 (the "Confirmation Hearing") where the Court considered (i)
confirmation of the Plan (as amended by the modifications), (ii) the withdrawal
or settlement of Confirmation Objections, (iii) the Confirmation Objections not
otherwise withdrawn or settled, (iv) the fairness and appropriateness of
substantively consolidating the Debtors' Estates, and (v) the fairness and
reasonableness of the settlements embodied in the Plan; and notice of the
Confirmation Hearing being deemed good and sufficient notice of the
2
<PAGE>
Modification Motion; and upon the entire record of the Debtors' Chapter 11
Cases, including, without limitation, the record made at the Confirmation
Hearing; and after finding that due, sufficient and adequate notice of the
Confirmation Hearing, the substantive consolidation of the Debtors' Estates, the
AEA Stipulation and the settlements and compromises embodied in the Plan has
been given to Holders of Claims, Interests and to all parties-in-interest, and
after due deliberation, the Court makes the following findings of fact and
conclusions of law:(2)
FINDINGS OF FACT AND CONCLUSIONS OF LAW:
A. The District Court has jurisdiction over the Chapter 11 Cases
pursuant to 28 U.S.C.ss.ss.157(1) and 1334(a). Venue of these proceedings and
the Chapter 11 Cases in this district is proper pursuant to 28 U.S.C.ss.ss.1408
and 1409. Confirmation of the Plan is a core proceeding pursuant to 28
U.S.C.ss.157(b) and this Court has jurisdiction to enter a final order with
respect thereto.
B. Due, timely, sufficient and adequate notice of the Plan, the
Confirmation Hearing, the Modification Motion and the deadlines for voting on,
and filing objections to, the Plan has been given to all known Holders of Claims
and Interests and other parties-in-interest in accordance with the procedures
established by the December 14 Order, the Bankruptcy Code, the Bankruptcy Rules,
the local rules of the Court and all other applicable laws, rules and
regulations.
C. The solicitation by the Debtors of votes accepting or rejecting the
Plan was proposed and conducted in good faith and complied with Sections 1125
and 1126 of the Bankruptcy Code, Bankruptcy Rules 3017 and 3018, the December 14
Order and all other
--------------
(2) This Confirmation Order constitutes the Court's findings of fact and
conclusions of law under Federal Rules of Civil Procedure 52, as made
applicable by Bankruptcy Rules 7052 and 9014. Any finding of fact shall
constitute a finding of fact even if it is stated as a conclusion of law,
and any conclusion of law shall constitute a conclusion of law even if it
stated as a finding of fact when necessary and appropriate.
3
<PAGE>
applicable provisions of the Bankruptcy Code and all other applicable laws,
rules and regulations.
D. The procedures by which the ballots and master ballots, as
applicable, were distributed to Holders of Claims against the Debtors in Class 5
and Class 6 under the Plan entitled to vote on the Plan and tabulated were fair,
properly conducted and in accordance with the Bankruptcy Code, the Bankruptcy
Rules, the local rules of this Court, the December 14 Order and all other
applicable laws, rules and regulations.
E. The Class 6 ballot cast by AEA in accordance with the AEA
Stipulation in the amount of $7.0 million to accept the Plan (the "AEA Ballot")
shall be included in the final tabulation of the Class 6 Claims voting on the
Plan. 270 has changed its Class 6 vote rejecting the Plan to an acceptance of
the Plan, and shall be counted as such.
F. As evidenced by the Affidavit of Carole Donlin dated January 19,
2000 certifying the method and results of the ballot tabulation (the "Plan Vote
Certification"), the AEA Ballot and the testimony of Thomas Avallone at the
Confirmation Hearing, (i) at least two-thirds in amount and more than one-half
in number of the Holders of Claims in Class 5 (Old Senior Subordinated Notes
Claims), and Class 6 (General Unsecured Claims) voting on the Plan accepted the
Plan without including the votes of insiders.
G. The classification scheme of Claims and Interests in the Plan is
reasonable and complies with the requirements of ss.ss.1122 and 1123 of the
Bankruptcy Code. Claims or Interests in each particular Class are substantially
similar to other Claims contained in such Class. In addition, consistent with
Section 1122(b), the Plan contains a convenience class (Class 4) encompassing
Holders of Allowed Claims in an amount of $2000 or less and each Holder of a
General Unsecured Claim that has elected on its Class 6 ballot to reduce the
Allowed amount of its Claim to $2000 or less. The inclusion of a convenience
class in the Plan is reasonable and
4
<PAGE>
appropriate for administrative convenience.
H. Classes 1, 2, 3, 4, 7, 10 and 11 are not impaired under the Plan
and, therefore, such Classes are deemed to have accepted the Plan pursuant to
Section 1126(f) of the Bankruptcy Code.
I. Classes 8 and 9 are impaired under the Plan and are deemed to have
rejected the Plan pursuant to Section 1126(g) of the Bankruptcy Code.
J. As required by Section 1129(a)(1) of the Bankruptcy Code, the Plan
complies with all applicable provisions of the Bankruptcy Code.
K. As required by and in compliance with Sections 1123(a)(1), (a)(2)
and (a)(3) of the Bankruptcy Code, the Plan (i) identifies the Classes of Claims
against and Interests in the Debtors, (ii) specifies the Classes of Claims and
Interests that are not impaired under the Plan as well as those that are
impaired under the Plan, and (iii) specifies the treatment of each Class of
Claims or Interests under the Plan.
L. Consistent with Section 1123(a)(4) of the Bankruptcy Code, the Plan
provides the same treatment for each Claim or Interest in a particular Class,
unless a Holder of a Claim or Interest has agreed with the Debtor to a less
favorable treatment.
M. As required by Section 1123(a)(5) of the Bankruptcy Code, the Plan
contemplates adequate means for its execution and implementation including, but
not limited to, (i) the substantive consolidation of the Chapter 11 Cases; (ii)
the utilization of available Cash on hand plus (a) $30 million Cash from the New
Money Investors, (b) an amount not to exceed $25 million as consideration for
the purchase of New Senior Secured Notes or a comparable debt instrument to be
issued by Reorganized PHI on the Effective Date, (c) up to $15.0 million under
the terms of the Working Capital Facility, and (d) proceeds of asset sales;
(iii) the adoption by Reorganized PHI of the Amended PHI By-Laws and Amended PHI
Articles and the filing of the
5
<PAGE>
Amended PHI Articles pursuant to Section 6.2.3 of the Plan; (iv) the issuance by
Reorganized PHI of the New Secured PIK Notes, the New Warrants, the New Common
Stock and the New Options; and (v) the vesting in the applicable Reorganized
Debtor of all property of the Consolidated Estates, and any property and assets
acquired by the Debtors or the Reorganized Debtors under the Plan.
N. As required by Section 1123(a)(6) of the Bankruptcy Code, the Plan
provides for the inclusion in the Amended Articles of a provision prohibiting
the issuance of non-voting equity securities and for an appropriate distribution
of voting power among New Class A Common Stock and New Class B Common Stock. The
provisions of the Amended By- Laws and the Plan with respect to the manner of
selection of the directors after the Effective Date were the product of good
faith negotiations among the Debtors, the Creditors' Committee and the New Money
Investors and are necessary for the implementation of the Plan.
O. Consistent with Section 1123(a)(7) of the Bankruptcy Code, the Plan
provides for Robert Earl to be chief executive officer of PHI and for the manner
by which the other officers and directors of Reorganized PHI and the other
Reorganized Debtors are to be chosen. The designation of Robert Earl as chief
executive officer on and after the Effective Date, and the manner of selection
and/or designation of the other officers and the directors of the Reorganized
Debtors, as applicable, provided for by the Plan are consistent with the
interests of Holders of Claims and Interests and public policy.
P. Consistent with Sections 1123(b)(1) and (b)(2) of the Bankruptcy
Code, the Plan impairs or leaves unimpaired, as the case may be, each Class of
Claims or Interests, and provides for the assumption, assignment or rejection of
each of the Debtors' executory contracts and unexpired leases which have not
been previously assumed or rejected pursuant to Section 365 of the Bankruptcy
Code, by prior order of the Court as of the Confirmation Hearing.
6
<PAGE>
Q. Consistent with Section 1123 (b)(3) of the Bankruptcy Code, the Plan
provides for either (i) the settlement or adjustment, or (ii) retention and
enforcement by Reorganized PHI, of any claims, demands, rights and causes of
action that any of the Consolidated Debtors or the Consolidated Estates may hold
against any Entity, other than claims that are released by virtue of Section
12.1 of the Plan.
R. As required by Section 1129(a)(2), the Debtors have complied with
all of the applicable provisions of the Bankruptcy Code including the disclosure
and solicitation requirements of Sections 1125 and 1126 of the Bankruptcy Code.
The Debtors transmitted solicitation materials including ballots to the Holders
of Claims in Classes 5 and 6 entitled to vote on the Plan, and non-voting
materials including the Plan Summary to the Holders of Interests, only after the
Court approved the Disclosure Statement and Plan Summary as containing adequate
information and related materials for distribution in compliance with the
requirements of the December 14 Order.
S. As required by Section 1129(a)(3), the Plan has been proposed in
good faith and not by any means forbidden by law. The Debtors' objectives in
proposing the Plan were for the valid business purpose of resolving disputes and
restructuring substantial obligations of the Debtors.
T. As required by Section 1129(a)(4) of the Bankruptcy Code, any
payment made or to be made by the Debtors for services or for costs and expenses
in connection with these Chapter 11 Cases, or in connection with the Plan, other
than those incurred in the ordinary course of business has been approved by this
Court or is subject to the approval by this Court as being reasonable.
U. The Debtors have disclosed their designation of Robert Earl,
presently the President and chief executive officer of PHI, to continue as chief
executive officer of PHI on and
7
<PAGE>
after the Effective Date, and have disclosed the identity of those persons who
shall be executive officers and directors of Reorganized PHI on and after the
Effective Date to the extent now known. The officers and directors for each of
the Reorganized Debtors other than PHI are to be designated on and after the
Effective Date by the Board of Directors of Reorganized PHI.
V. Section 1129(a)(6) of the Bankruptcy Code is inapplicable as there
is no governmental regulatory commission with jurisdiction over any rates
charged by the Debtors.
W. As required by Section 1129(a)(7) of the Bankruptcy Code, with
respect to each impaired Class of Claims, and each impaired Class of Interests,
each Holder of a Claim or Interest of such Class has either accepted the Plan or
will receive or retain under the Plan on account of such Claim or Interest
property of a value, as of the Effective Date, that is not less than the amount
such Holder would receive or retain if the Debtors were liquidated on the
Effective Date under Chapter 7 of the Bankruptcy Code.
X. The Debtors have requested that the Court confirm the Plan under
Section 1129(b) as to Classes 8 and 9.
Y. The Plan is fair and equitable with respect to the Holders of Class
8 Interests as no Class junior to Class 8 under the Plan will receive or retain
any property under the Plan on account of such junior Interest. In addition, the
Plan is fair and equitable with respect to the Holders of Class 9 Claims as no
Class junior to Class 9 under the Plan will receive or retain any property under
the Plan on account of such junior Claim, and the Plan does not discriminate
unfairly with respect to impaired, non-accepting Classes of Claims and
Interests.
Z. The Plan provides for the treatment of Allowed Administrative
Expense Claims and Allowed Priority Claims pursuant to Sections 507(a)(1),
(a)(3), and (a)(8) of the Bankruptcy Code, in accordance with Section 1129(a)(9)
of the Bankruptcy Code, except to the extent that the Holder of a particular
Claim has agreed in writing to a different treatment.
8
<PAGE>
Administrative Expense Claims incurred in the ordinary course of the Debtors'
business shall be paid or performed in accordance with the terms and conditions
of the parties' agreement.
AA. The rate of post-Effective Date interest to be paid on account of
Allowed Priority Tax Claims, if any, as provided for by Section 4.5 of the Plan,
is proper under Section 1129(a)(9) of the Bankruptcy Code and shall be the
Treasury Rate except as to the State of New Jersey, Division of Taxation, as to
which the rate shall be the prime rate plus three (3%) percent.
BB. As required by Section 1129(a)(10) of the Bankruptcy Code, and as
demonstrated by the Plan Vote Certification, at least one impaired Class of
Claims has accepted the Plan, determined without including any acceptance of the
Plan by any insider.
CC. The Plan is feasible. The Debtors have demonstrated that on and
after the Effective Date they will have the ability to meet their financial
obligations under the Plan and continue their business in the ordinary course.
As required by Section 1129(a)(11) of the Bankruptcy Code, confirmation of the
Plan is not likely to be followed by the liquidation or the need for further
financial reorganization of the Debtors.
DD. As required by Section 1129(a)(12) of the Bankruptcy Code, all fees
payable under 28 U.S.C. ss.1930, which are unpaid and due to be paid as of
the Effective Date, shall be paid in Cash on or before the Effective Date.
EE. Consistent with Section 1129(a)(13) of the Bankruptcy Code, Section
6.5 of the Plan provides for Reorganized PHI to continue to pay all retiree
benefits (as defined in Section 1114(a) of the Bankruptcy Code), if any,
maintained or established by the Debtors prior to the Confirmation Date.
FF. Based on the record of the Confirmation Hearing, the Old Common
Stock had no value as of the Petition Date.
9
<PAGE>
GG. The substantive consolidation of the Debtors as provided for by
Section 6.2.6 of the Plan will facilitate the consummation and implementation of
the Plan, is integral to the treatment provided to Creditors under the Plan,
will not prejudice any Creditor of the Estates and is appropriate under the
circumstances.
HH. The Plan is the only plan of reorganization for the Debtors pending
before this or any other Court.
II. The primary purpose of the Plan is not the avoidance of taxes or
the avoidance of the application of Section 5 of the Securities Act of 1933, as
amended (15 U.S.C. ss.77e).
JJ. By order dated January 18, 2000, this Court has approved the
Debtors' execution of a Commitment Letter and Term Sheet dated January 18, 2000
(the "Revolver Commitment") with The CIT Group/Business Credit, Inc. and
Rothschild Recovery Fund (together, the "Working Capital Lenders"), which sets
forth the material terms and conditions of a commitment by the Working Capital
Lenders to provide to PHI and other specified PHI affiliates, subject to the
execution of definitive documentation and satisfaction of other conditions, a
revolving credit facility in an aggregate principal amount not to exceed $15.0
million to become effective upon the Effective Date.
KK. PHI has entered into Subscription Agreements with the New Money
Investors (the "Investor Agreements") pursuant to which the New Money Investors
have agreed to acquire 70 million shares of Reorganized PHI's New Class B Common
Stock for $30.0 million. In accordance with the terms of the Investor
Agreements, the New Money Investors previously made a $5.0 million good faith
deposit into escrow, which money will be applied toward their $30.0 million
funding obligation if the Effective Date of the Plan occurs not later than
February 29, 2000.
10
<PAGE>
LL. The Debtors have presented evidence of the likelihood that they
will execute a senior secured loan agreement or comparable agreement for a $22
million term loan (the "Bridge Loan") as contemplated by Section 6.1 of the
Plan.
MM. The record established at the Confirmation Hearing demonstrates
that all conditions precedent to confirmation of the Plan have been satisfied,
or are concurrently satisfied by entry of this Confirmation Order, or have been
waived.
NN. The Debtors have stated that they believe that conditions precedent
to the Effective Date of the Plan, as set forth in Section 10.2 of the Plan,
will occur or be duly waived.
OO. Pursuant to Section 1125(e) of the Bankruptcy Code, the Debtors and
the Releasees shall not be liable on account of their solicitation of
acceptances of the Plan and Reorganized PHI's issuance and/or the Reorganized
Debtors' distribution of Plan Securities pursuant to the Plan in good faith and
in compliance with the applicable provisions of the Bankruptcy Code, for any
violation of applicable law, rule or regulation governing the solicitation of
acceptances of a plan of reorganization or the offer, issuance, sale or purchase
of securities.
PP. Pursuant to Section 1145(a)(1) of the Bankruptcy Code, the offer
and sale of those Plan Securities issued by Reorganized PHI and distributed to
Holders of Allowed Class 5 and Class 6 Claims and Class 8 Interests, in exchange
for or principally in exchange for a Claim against, or an Interest in, the
Debtors shall be exempt from Section 5 of the Securities Act, and any state or
local law requiring registration prior to the offering, issuance, distribution
or sale of securities. The resale of Plan Securities initially distributed to
such Entities pursuant to the Plan, shall be exempt from Section 5 of the
Securities Act and any state or local law requiring registration prior to the
offering, issuance, distribution or sale of securities.
11
<PAGE>
QQ. The Plan Securities issued to the New Money Investors, to the
Lenders on account of the Term Loan, or to any other Entity not exchanging
Claims or Interests for such securities shall be issued pursuant to the
exemption provided by Section 4(2) of the Securities Act.
RR. For all purposes under the Plan, the record established at the
Confirmation Hearing demonstrates that the New Secured PIK Notes have an
aggregate value as of the Confirmation Date of approximately their face amount.
SS. For all purposes under the Plan, the record established at the
Confirmation Hearing demonstrates that the New Class A Common Stock and the New
Class B Common Stock each have a value of approximately $4.2857 per share.
TT. As indicated by the Plan Vote Certification, Holders of Class 5
Claims in the aggregate approximate principal amount of $123.7 million have
elected to receive their Pro Rata Share of New Senior Secured Notes, a Cash fee
and New Class A Common Stock as provided for by the Plan if Bay Harbour executes
an agreement with the Debtors to acquire the New Senior Secured Notes.
UU. As indicated by the Plan Vote Certification, Holders of Class 6
Claims in the aggregate approximate amount of $9.36 million have elected on
their Class 6 ballots to be treated as Class 4 (Convenience Class) Claims.
VV. Absent the funds to be provided by the Working Capital Lenders
pursuant to the Working Capital Facility, the Plan could not be consummated. The
Working Capital Lenders will not provide such funds absent the findings of fact
and conclusions of law set forth in this Confirmation Order. The Working Capital
Lenders are explicitly relying on the findings of fact and conclusions of law
set forth in this Confirmation Order in determining to provide funds pursuant to
the Working Capital Facility. Each of the Reorganized Debtors will receive
12
<PAGE>
the benefits directly or indirectly from the Working Capital Facility in the
form of revolving credit loans and letters of credit.
WW. On a consolidated basis, as of the Effective Date, and after giving
effect to the agreements and transactions contemplated by the Plan on such date
the Reorganized Debtors (i) are adequately capitalized and solvent and the sum
of their property, at a fair valuation, is greater than the sum of their debts,
(ii) are not engaged or to be engaged in business or any transaction for which
their capital is unreasonably small, and (iii) do not intend, or believe, that
they will incur debts beyond their to pay as such debts mature.
XX. The making, delivery, issuance, transfer, assignment, exchange,
filing or recording at any time of any deed, bill of sale, mortgage, leasehold
mortgage, deed of trust, memorandum of lease, assignment, leasehold assignment,
security agreement, lien, financing statement, negative pledge or other
instrument of absolute or collateral transfer by the Debtors and/or Reorganized
Debtors in connection with the consummation of the Plan shall be, and hereby is,
"under a plan confirmed under section 1129 of [the Bankruptcy Code]" within the
meaning of that phrase in section 1146(c) of the Bankruptcy Code.
MODIFICATIONS TO THE PLAN
YY. The modifications to the Plan proposed by the Debtors prior to, at
or in connection with the Confirmation Hearing as set forth below in this
Confirmation Order (the "Plan Modifications") have been reviewed by and
consented to by the Creditors' Committee. The Plan Modifications do not
adversely change the treatment of the Holders of Claims against, or Interests
in, the Debtors. Consequently, in accordance with Section 1127 of the Bankruptcy
Code and Bankruptcy Rule 3019, the Plan as amended is deemed accepted by each
Holder of a Claim against the Debtors that voted to accept the Plan, without the
need to resolicit the votes of
13
<PAGE>
such Creditors on the Plan as amended, and is deemed accepted by each Holder of
an unimpaired Claim deemed to have accepted the Plan in accordance with Section
1126(f) of the Bankruptcy Code.
FINDING THAT THE PLAN IS CONFIRMABLE BASED UPON, INTER ALIA, ALL OF THE
FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF LAW, THE COURT ORDERS THAT:
1. The Plan and each of its provisions, as modified to the limited
extent set forth herein, are hereby confirmed in accordance with Sections
1129(a) and (b) of the Bankruptcy Code.
2. The Plan is hereby modified as follows:
(a) Article 1, Definitions and Rules of Construction, Intercreditor
and Collateral Agency Agreement
Section 1.61 of the Plan is hereby amended and modified by
replacing the definition in that Section with the following:
"means the agreement governing the respective rights in property
of the Debtors, securing parties to the Working Capital Facility, the New Senior
Secured Notes (or comparable debt instrument), and the New Secured PIK Notes
Indenture in the form acceptable to the Working Capital Lenders and consistent
with the Revolver Commitment and approved by the Court."
(b) Article 1, Definition and Rules of Construction, Treasury Rate
Section 1.123 of the Plan is hereby amended by replacing the
text in the parenthesis of the definition of "Treasury Rate" with the following:
"(as defined in Section 6621(a)(2) of the Internal Revenue Code
of 1986, as amended)"
(c) Article 1, Definition and Rules of Construction, Working Capital
Facility
Section 1.128 of the Plan is hereby amended and modified by
replacing the definition in that Section with the following:
14
<PAGE>
"means a post-Effective Date Working Capital Facility in an
amount not to exceed $15 million consistent with the terms and
conditions of the Revolver Commitment.
(d) Article 1, Definition and Rules of Construction, Working Capital
Facility Security and Pledge Agreement.
Section 1.129 of the Plan is hereby deleted in its entirety and
replaced by the following:
"1.129 "Working Capital Facility Loan Documents", means any and
all of the documents and instruments the Working Capital
Lenders require to be executed to evidence and give effect to
the Working Capital Facility, including without limitation, a
note, loan agreement, security agreements, pledge agreements,
mortgages, financing statements, and the Intercreditor and
Collateral Agency Agreement."
(e) SECTION 4.2 , ORDINARY COURSE LIABILITIES
Section 4.2 of the Plan is hereby amended and modified by adding a
new sentence at the end of such Section which states as follows:
"There shall be no bar date with respect to the Administrative
Claims of the Internal Revenue Service ("IRS") and the amount of
any Administrative Claim held by the IRS and the rights of the
IRS, if any, to payment in respect thereof shall (i) be
determined in the manner in which the amount of such Claim
and the rights of the IRS would have been resolved or
adjudicated if the Chapter 11 Cases had not been commenced;
PROVIDED, HOWEVER, that the Debtors reserve the right
to seek a determination by the Bankruptcy Court of the validity,
amount and priority of any Administrative Claim under 11
U.S.C.ss.505, (ii) survive the Effective Date and consummation
of the Plan as if the Chapter 11 Cases had not been commenced,
and (iii) not be discharged pursuant to Section 1141 of the
Bankruptcy Code."
(f) Section 6.2.6, Substantive Consolidation
Section 6.2.6 of the Plan is hereby amended and modified by
inserting the following text at the beginning of the first sentence of such
Section:
"Except as otherwise provided in Section 6.2.8 hereof, the"
15
<PAGE>
Section 6.2.6 of the Plan is hereby further amended by deleting the
words "Pursuant to the Confirmation Order," from the beginning of the second
sentence of such Section and instead beginning the second sentence of such
Section with "On the Confirmation Date, ..."
(g) Section 6.2.8, Continued Corporate Existence
Section 6.2.8 of the Plan is hereby amended by deleting the
words "Except as otherwise provided in the Plan," from the beginning of the
third sentence of that Section and instead beginning the third sentence of such
Section with "On or after the Effective Date, ..."
(h) Section 10.2, Conditions to the Occurrence of the Effective
Date.
Section 10.2 of the Plan is hereby amended by adding the
following text as a new subsection (f) to that Section:
"(f) The Working Capital Facility Loan Documents shall have been
approved by Order of the Bankruptcy Court together with a
finding as to the applicability of 11 U.S.C. ss. 364(e). The
conditions to the effectiveness of the Working Capital
Facility and the New Senior Secured Notes (or comparable debt
instrument) shall have been satisfied. This condition cannot be
waived by the Debtors without the consent of the Working Capital
Lenders, the Holders of the New Senior Secured Notes (or
comparable debt instrument) and the Creditors' Committee.
(i) SECTION 12.1, RELEASES
Section 12.1 of the Plan is hereby amended and modified by replacing
the second full paragraph of that Section with the following:
On the Effective Date, each Holder of a Claim or Interest shall
be deemed to have released unconditionally, and hereby is
deemed to release unconditionally on such date, the Releasees,
from any and all rights, claims, causes of action, obligations,
suits, judgments, damages and liabilities whatsoever which any
such Holder may be entitled to assert, whether known or
unknown, foreseen or unforeseen, existing or hereafter arising,
in law, equity or otherwise, based in whole or in part upon
any act or omission, transaction, event or other occurrence
taking place on or
16
<PAGE>
before the Effective Date in any way relating to Reorganized
PHI, the other Reorganized Debtors, the Chapter 11 Cases or the
Plan, except that no Releasees shall be released from acts or
omissions which are the result of fraud, gross negligence,
willful misconduct or willful violation of the securities laws
or the Internal Revenue Code. The releases provided for herein
shall not preclude police, federal tax, or regulatory agencies
from fulfilling their statutory duties. Notwithstanding anything
to the contrary in the Plan or the Confirmation Order, the
releases provided for herein shall not apply to the Claims, if
any, of the United States."
(j) SECTION 12.4, GENERAL INJUNCTION
Section 12.4 of the Plan is hereby amended and modified by replacing
both provisos at the end of this Section with the following:
"PROVIDED, HOWEVER, that each Holder of a Claim or Interest may,
to the extent permitted by and in accordance with the provisions
of the Plan, commence or continue any action or proceeding to
determine the amount of its Claim or Interest in the Bankruptcy
Court or any other court of competent jurisdiction, and all
Holders of Claims or Interests shall be entitled to enforce
their rights under the Plan and the Plan Documents, PROVIDED
FURTHER, HOWEVER, that nothing in the Plan shall restrain and
enjoin all Entities who received or are Holders of Plan
Securities and all Holders of Claims against and Interests in
the Estates from taking any action to enforce liability arising
from acts or omissions which are the result of fraud, gross
negligence, willful misconduct or willful violation of the
securities laws or the Internal Revenue Code. The injunction
provided for herein shall not preclude police, federal tax, or
regulatory agencies from fulfilling their statutory duties.
Notwithstanding anything to the contrary in the Plan or the
Confirmation Order the injunction provided for herein shall not
apply to bar the Claims, if any, of the United States."
3. For the reasons set forth on the record of the Confirmation Hearing,
each and every Confirmation Objection, to the extent not withdrawn or resolved
pursuant to the terms of this Confirmation Order, including the Plan
Modifications set forth herein, is overruled.
4. Subject to the provisions of the Plan (including any Plan Document)
and this Confirmation Order, the Debtors will, as Reorganized Debtors, continue
to exist after the
17
<PAGE>
Effective Date, with all the powers of a corporation or
partnership, as applicable, under applicable law and without prejudice to any
right to alter or terminate such existence (whether by merger or otherwise)
under applicable law.
5. Consistent with the Plan, the following agreements and documents,
substantially in the form of those filed with the Court at or after the
Confirmation Hearing, as they may be modified by the Debtors with the consent of
the Creditors' Committee including all the annexes and exhibits thereto, and all
terms and provisions thereof (collectively, the "Plan Documents") are hereby
approved in all respects:
a. Amended and Restated PHI Certificate of Incorporation (the "Amended
PHI Articles");
b. Amended and Restated PHI By-Laws (the "Amended PHI By-Laws");
c. New Warrant Agreement; and New Warrants; and
d. Registration Rights Agreement.
6. PHI, the other Debtors, Reorganized PHI, the other Reorganized
Debtors and their directors, officers and agents are hereby authorized to enter
into, execute, deliver, file and/or implement the Plan Documents and other
documents and instruments substantially consistent therewith or incidental
thereto and any amendments, supplements or modifications to such Plan Documents
as may be appropriate, and to take such other steps and perform such other acts
as may be necessary to implement and effectuate the Plan, the Plan Documents,
all other related instruments and documents and this Confirmation Order, and to
satisfy all other conditions precedent to the implementation and effectiveness
of the Plan.
7. The Plan and all other agreements provided for under the Plan,
including the Plan Documents, and all transactions, documents, instruments and
agreements referred to therein, contemplated thereunder or executed and
delivered in connection therewith, and any
18
<PAGE>
amendments or modifications thereto in substantial conformity therewith are
approved, and the Debtors are authorized and directed to enter into and to
perform such agreements according to their terms.
8. Pursuant to Section 6.2.4 of the Plan, on the Effective Date, the
following persons shall be appointed to the Board of Directors of PHI:
(a) Robert Earl
(b) Claudio Gonzalez
(c) Thomas Avallone
(d) Steven Grapstein
(e) Mustafa Al Heijelen
(f) two Creditors' Committee designees
The appointment of the foregoing persons to the Board of Directors of PHI is
consistent with the interest of Holders of Claims against, and Interests in, the
Debtors, and with public policy.
9. Pursuant to Section 6.2.4 of the Plan, on the Effective Date, Robert
Earl shall be the chief executive officer of PHI. The appointment of Robert Earl
as chief executive officer of PHI is consistent with the interests of Holders of
Claims against, and Interests in, the Debtors, and with public policy.
10. Reorganized PHI is authorized to issue the Plan Securities
consistent with the terms of the applicable Plan Documents.
SUBSTANTIVE CONSOLIDATION
11. Except as otherwise provided in Section 6.2.8 of the Plan, the
substantive consolidation of the Chapter 11 Cases into a single case solely for
purposes of confirmation and consummation of the Plan is hereby approved in
accordance with Section 105(a) of the Bankruptcy Code, and (i) all assets and
all proceeds thereof, and all liabilities of the
19
<PAGE>
Consolidated Debtors will be merged or treated as though they were merged with
and into the assets and liabilities of Reorganized PHI; (ii) all Consolidated
Claims and Claims among the Consolidated Debtors will receive no distribution
under the Plan; (iii) any obligations of any Consolidated Debtor, and all
guarantees thereof executed by one or more of the Consolidated Debtors, and any
Claims filed or to be filed in connection with any such obligation and guarantee
will be deemed one Claim against Reorganized PHI; (iv) each and every Claim
filed in the individual Chapter 11 Case of any of the Consolidated Debtors will
be deemed filed against Reorganized PHI; and (v) for purposes of determining the
availability of the right of set-off under Section 553 of the Bankruptcy Code,
the Consolidated Debtors shall be treated for purposes of the Plan as one entity
so that, subject to the other provisions of Section 553 of the Bankruptcy Code,
debts due to any of the Consolidated Debtors may be setoff against the debts of
any of the Consolidated Debtors.
12. On and after the Effective Date, PHI shall exist as a corporation
duly organized under the laws of Delaware, and the other Reorganized Debtors
shall exist as entities duly organized under the laws of their respective states
of incorporation or organization with each such entity having assets and
liabilities separate and apart from and not merged with assets and liabilities
of the other Reorganized Debtors.
WORKING CAPITAL FACILITY
13. The Debtors, Reorganized PHI, the other Reorganized Debtors and
their directors, officers and agents are hereby authorized to enter into,
execute and deliver the Working Capital Facility Loan Documents to be negotiated
with the Working Capital Lenders if such documents are approved by the
Creditors' Committee and to take such other steps and perform such other acts as
may be necessary to effectuate the terms thereof, including, without limitation,
the payment of all appropriate fees and expenses to, the Working Capital
Lenders.
20
<PAGE>
All liens and security interests provided for therein shall be deemed to be
authorized and approved, without any further act required; provided, however,
that the Working Capital Lenders are authorized to file all documents and
instruments and to take all actions required under the Working Capital Facility
Loan Documents and each of the Reorganized Debtors are authorized and directed
to cooperate in connection with such actions.
NEW SENIOR SECURED NOTES
14. As of the Effective Date, the Debtors shall have effectuated a sale
of up to $25 million of New Senior Secured Notes or other instruments on
comparable terms as provided in the Plan, or as modified by agreement between
the Debtors and the Creditors' Committee.
LIENS AND SECURITY INTERESTS
15. On the Effective Date, transfers of property by the Debtors
contemplated by the Plan, including with respect to the Working Capital
Facility, the New Senior Secured Notes (or comparable debt instruments) and the
other Plan Documents, will be legal, valid, binding and effective transfers of
property and will vest, to the fullest extent permitted by the Bankruptcy Code,
good title to such property in the respective transferee, free and clear of all
Liens, Claims and Encumbrances, except as otherwise provided by the Plan,
including as required to implement the New Senior Secured Note obligations, the
Working Capital Facility and the New Secured PIK Notes Indenture, and this
Confirmation Order.
16. On and after the Effective Date, the creation and perfection of the
Liens securing the New Senior Secured Note obligations, the Working Capital
Facility and the New Secured PIK Notes and the execution and delivery of
guarantees by any of the Debtors thereunder will not be made with actual intent
to hinder, delay or defraud any person, will be made for reasonably equivalent
value and fair consideration, will not result in the insolvency of any of the
Reorganized Debtors, will not leave any of the Reorganized Debtors with
21
<PAGE>
unreasonably small capital with which to conduct their businesses, will not be
made with the intent to, or belief that they will, incur debts that the
respective Reorganized Debtors would be unable to pay as they become due, nor
will such transfers or the incurring of such obligations in any manner
constitute fraudulent conveyances or transfers.
BINDING EFFECT
17. Pursuant to Section 1141(a) of the Bankruptcy Code, from and after
the Confirmation Date, the Plan shall be binding upon and inure to the benefit
of the Reorganized Debtors, all Holders of Claims against, and Interests in, the
Debtors and any other party-in- interest in these Chapter 11 Cases and their
respective successors and assigns, regardless of whether the Claims of such
Holders or obligations of any party-in-interest (i) are in a Class that is
impaired under the Plan, (ii) have accepted the Plan, or (ii) have filed a proof
of claim.
VESTING
18. Except as otherwise provided in the Plan (including any Plan
Document) or any other indentures, instruments or agreements to be executed and
delivered pursuant to the Plan or this Confirmation Order, upon the Effective
Date, all property of the Consolidated Estates shall vest in and be retained by
Reorganized PHI or the other Reorganized Debtors, as applicable, or distributed
to Creditors or Interest Holders as provided in the Plan, free and clear of all
Liens, Encumbrances and Interests of Creditors and Holders of Interests
expressly provided for in the Plan. On and after the Effective Date, the
Reorganized Debtors may operate their businesses and may use, acquire and
dispose of property and compromise and settle any Claims against them without
supervision or approval by this Court and free of any restrictions of the
Bankruptcy Code or Bankruptcy Rules, other than those restrictions expressly
imposed by the Plan and this Confirmation Order.
DISCHARGE
22
<PAGE>
19. Except as otherwise expressly provided in the Plan or this
Confirmation Order, as of the Effective Date there shall be discharged, pursuant
to Section 1141(d) of the Bankruptcy Code, existing debts of and Claims of any
kind, nature or description against the Debtors, any of their assets or
properties or any property dealt with under the Plan, and all obligations of the
Debtors, directly or as guarantors, under the SunTrust Agreements and the Old
Senior Subordinated Notes Indenture. Upon the Effective Date, the Debtors shall
be discharged and released to the extent permitted by Section 1141 of the
Bankruptcy Code from any and all Claims and all debts of the kind specified in
Sections 502(g), 502(h) and 502(i) of the Bankruptcy Code, whether or not a
proof of claim based upon such Claim is Filed or deemed Filed or the Holder of a
Claim based upon such debt has accepted the Plan.
INJUNCTION
20. Except as otherwise provided in the Plan or this Confirmation
Order, all Holders of Claims and Interests shall be precluded from asserting
against the Debtors, any of their assets or properties or any property dealt
with under the Plan, any or other further Claim based upon any act or omission,
transaction or other activity of any kind or nature that occurred prior to the
Confirmation Date, whether or not such Holder Filed a proof of claim. Except, as
otherwise provided in the Plan or this Confirmation Order, the discharge of all
existing debts and Claims effected hereby to the extent permitted by Section
1141 shall void any judgment against the Debtors obtained at any time to the
extent it relates to a discharged Claim and operates as an injunction against
the commencement or continued prosecution of any action against the Debtors,
Reorganized PHI, the other Reorganized Debtors, or any of their respective
properties to the extent it relates to a discharged Claim.
21. Except as otherwise provided in the Plan or this Confirmation
Order, all Entities who received or are Holders of Plan Securities and all
Holders of Claims against, and
23
<PAGE>
Interests in, the Estates are permanently restrained and enjoined after the
Confirmation Date from commencing, continuing or taking any act, to enforce, or
from collecting or recovering by any manner or means, any right, claim or cause
of action related to any Old Security or any claim, against any of the Debtors
or any Foreign Subsidiary or Domestic Subsidiary.
22. Notwithstanding anything to the contrary in the Plan or this
Confirmation Order, the releases provided for in Section 12.1 of the Plan and
the injunction provided for in Section 12.4 of the Plan shall not apply to bar
or otherwise impair Caransa from (i) finalizing an agreement in principle
negotiated with PH Amsterdam B.V. ("PH Amsterdam"), an affiliate of PHI and a
Netherlands company, and the Trustee in the pending Netherlands insolvency
proceeding of PH Amsterdam, in respect of Caransa's claims under a lease with PH
Amsterdam and a certain loan agreement between Caransa and PH Amsterdam, and
(ii) otherwise pursuing its rights and claims as against PH Amsterdam in the
context of PH Amsterdam's Netherlands insolvency proceeding and otherwise
pursuant to Dutch law and in respect of the real property subject to the lease;
PROVIDED, HOWEVER, that Caransa will reduce the amount of its Claim against PHI
by the amount of any recovery obtained in PH Amsterdam's Netherlands insolvency
proceeding or otherwise pursuant to Dutch law.
23. The releases provided for in Section 12.1 of the Plan and the
injunction provided for in Section 12.4 of the Plan shall not prevent the NJ Tax
Division from pursuing recovery against the applicable Reorganized Debtors
either in the Bankruptcy Court or in the applicable non-bankruptcy court and
thereafter from pursuing collection of trust fund taxes from responsible persons
of the Debtors.
RELEASES
24. Except as otherwise provided for in the Plan or this Confirmation
Order, the Releases provided for in Sections 12.1 of the Plan and the General
Injunction provided for in
24
<PAGE>
Section 12.4 of the Plan are hereby approved and authorized and incorporated
herein as if fully set forth herein.
25. Except as otherwise provided for in the Plan or this Confirmation
Order, pursuant to Section 12.3 of the Plan, neither the Debtors, Reorganized
PHI, the other Reorganized Debtors, nor any of their respective employees,
officers, directors, agents, or representatives, nor any Professionals employed
by any of them, nor the Creditors' Committee, or any of its members, agents,
representatives, or professional advisors shall have or incur any liability to
any Entity for any act taken or omission made in good faith in connection with
or related to formulating, implementing, confirming or consummating the Plan, or
any contract, instrument, release, or other agreement or document created in
connection with the Plan.
26. Nothing contained in the Plan, including, but not limited to,
Article 12, or in this Confirmation Order shall be construed to effect a waiver
of the rights of any party under Section 1125(e) of the Bankruptcy Code or the
waiver of the rights of any party to indemnification.
TRANSFER TAXES
27. Pursuant to Section 1146(c) of the Bankruptcy Code, neither (i) the
issuance, transfer or exchange of any security under the Plan, nor the making or
delivery of any instrument of transfer, nor the revesting, transfer or sale of
any real or personal property of the Debtors, (ii) the making, delivery,
creation, assignment, amendment or recording of any note or other obligation for
the payment of money, any deed or other instrument of transfer, in connection
with, or in furtherance of, the Plan, or as further provided under Section 14.8
of the Plan, including without limitation the sale of the Debtors' interests in
1567 Broadway, New York, New York, pursuant to the Purchase and Sale Agreement
dated January 4, 2000 between PH (Region III), Inc. and Intell 1567 LLC (the
"Agreement") and in connection with the
25
<PAGE>
Atlantic Transaction (as such term is defined in the Agreement), shall be
subject to any document recording tax, stamp tax, or other similar tax or
governmental assessment. Each and every recorder of deeds or similar official
for any county, city or governmental unit in which any instrument under, in
furtherance of, or in connection with the Plan, is to be recorded, is directed
to accept for filing or recording this Confirmation Order and any and all such
instruments, without requiring the payment of any documentary stamp tax, deed
stamps, stamp tax, transfer tax, intangible tax or other similar tax.
28. Distributions required to be made to the Holders of Allowed Claims
against, and Allowed Interests in, the Debtors shall be made to the Entities
entitled thereto as provided in the Plan. The record date for determining which
Holders of Allowed Claims and Allowed Interests are entitled to receive
distributions under the Plan shall be the fifth Business Day prior to the
Effective Date (the "Distribution Record Date"). Pursuant to Section 6.3.7 of
the Plan, the respective transfer registers for the Old Securities will be
closed, and Reorganized PHI, the Old Indenture Trustee, the Old Stock Transfer
Agent and their respective agents shall have no obligation to recognize the
transfer of any Old Securities occurring after the Distribution Record Date.
29. Notice of the date which shall be the Distribution Record Date
shall be provided to the Old Indenture Trustee, the Old Stock Transfer Agent and
their respective agents, if any, at least three (3) Business Days prior to the
Distribution Record Date.
30. Those Plan Securities that are issued by Reorganized PHI to the
Holders of Allowed Claims in Classes 5 and 6, and Allowed Interests in Class 8,
under the Plan in exchange for a Claim against, an Interest in, or an
Administrative Claim against the Debtors, or principally in such exchange and
partly for cash or property, are exempt from registration pursuant to Section
1145 of the Bankruptcy Code and those Plan Securities may be resold by
26
<PAGE>
such Holder without restriction except to the extent that such Holder is deemed
an underwriter with respect to those securities pursuant to Section 1145(b)(1)
of the Bankruptcy Code.
31. For purposes of distribution, multiple General Unsecured Claims (i)
Filed by a single Creditor against the same or multiple Debtors and/or (ii) of a
single Creditor scheduled by multiple Debtors, shall be aggregated for all
purposes under the Plan including, but not limited to, for purposes of
determining whether the Holder of such Allowed General Unsecured Claims shall be
treated as the Holder of a Class 4 Convenience Class Claim or as the Holder of a
Class 6 General Unsecured Claim.
32. The Debtors are hereby authorized to transmit a supplemental
Convenience Class Election form (the "Election Form"), substantially in the form
of that annexed to this Confirmation Order as Exhibit A, which form is hereby
approved, permitting Creditors to elect to be treated as Class 4 Claims under
the Plan, to those Creditors that were not previously forwarded a Class 6 ballot
to vote on the Plan and that (i) Filed a proof of claim against one or more of
the Debtors asserting a General Unsecured Claim either in the amount of $2,000
or less or which was received by the Balloting Agent after the December 6, 1999
Record Date previously established by the Court, and (ii) was scheduled by the
Debtors in the schedules of liabilities Filed with the Court. The Debtors may
make modifications to the Election Form with the consent of the Creditors'
Committee. Creditors entitled to receive the Election Form shall be given at
least 20 days from the date of transmittal by first class mail of the Election
Form to return the Election Form to the Balloting Agent in the manner provided
for on the face of the Election Form.
33. The Debtors are also authorized to prepare in consultation with the
Creditors' Committee and to send a notice to those Holders of General Unsecured
Claims with multiple proofs of claim Filed against the Debtors and/or scheduled
by multiple Debtors in their
27
<PAGE>
schedules of liabilities that elected on Class 6 ballots to be treated as
Convenience Claims under the Plan. The notice will inform each such Creditor
that all of its Allowed Class 6 Claims will be aggregated for purposes of
receiving one distribution from the Debtors, and accordingly, will provide such
Creditors with the opportunity to nullify the previous Convenience Class
Election such Creditor made. Creditors shall be provided with at least twenty
(20) days from the date of transmittal of the notice by first class mail to
notify the Balloting Agent, in the manner provided in the notice, of their
decisions to nullify their prior Convenience Class Election.
34. Without limiting the Registration Rights Agreement, Reorganized PHI
is authorized and directed to file, not later than 90 days after the Effective
Date, a shelf registration relating to the securities issued to the Holders of
the New Common Stock, the New Senior Secured Notes (or comparable debt
instruments), the New Secured PIK Notes and the New Warrants, and Reorganized
PHI is directed to use its reasonable best efforts to have such shelf
registration declared effective as soon as practicable after such filing and to
keep the shelf registration statement continuously effective until the second
anniversary of the Effective Date.
35. Confirmation of the Plan will not affect the valid set off rights,
if any, of the United States of America.
36. In addition to the SunTrust Agreements, the Debtors and SunTrust
are parties to a certain ACH Agreement (the "ACH Agreement") pursuant to which
SunTrust provides various payroll processing and payment services to the
Debtors. Pursuant to a Security Agreement dated April 22, 1999, PHI granted a
perfected first priority security interest in and lien on a renewable
certificate of deposit issued by SunTrust in the face amount of $895,000. The
Claims, if any, of SunTrust under the ACH Agreement shall be unimpaired and
treated as Class 3 (Miscellaneous Secured) Claims under the Plan. After the
Effective Date, the ACH Agreement shall continue in full force and effect unless
otherwise agreed by Sun Trust and the
28
<PAGE>
Debtors, and subject to the Debtors' rights of termination in accordance with
the ACH Agreement.
EXECUTORY CONTRACTS
37. Except as otherwise provided by orders of this Court, pursuant to
Section 9.1 of the Plan, and in accordance with Section 1123(b)(2) of the
Bankruptcy Code, the Debtors will be deemed to have rejected as of the Effective
Date each executory contract or unexpired lease that has not been previously
assumed or rejected pursuant to a prior order of this Court or which has not
been designated to be assumed by Reorganized PHI or any applicable other
Reorganized Debtor at or prior to the Confirmation Hearing.
38. Pursuant to Section 9.2 of the Plan, any Claim for damages arising
by reason of the rejection of an executory contract or unexpired lease pursuant
to the Plan, if not previously evidenced by a Filed proof of claim or barred by
a Final Order shall be forever barred and shall not be enforceable against the
Debtors, the Reorganized Debtors or their successors or assigns or their
properties or agents, unless a proof of claim is filed with the Bankruptcy Court
and served within thirty (30) days after the later of (i) the entry of a Final
Order authorizing such rejection other than this Confirmation Order and (ii) the
Effective Date.
39. Pursuant to Section 9.3 of the Plan, each executory contract and
unexpired lease to be assumed pursuant to the Plan, including each Landlord
Settlement Agreement, shall be reinstated and rendered unimpaired in accordance
with Sections 1124(2) and 365(b)(1) of the Bankruptcy Code, or in accordance
with the applicable agreement approved by the Court, and the Debtors shall cure
or provide adequate assurance that they will cure any monetary defaults. The
Court retains jurisdiction to resolve disputes regarding the cure amount and the
Debtors' provision of adequate assurance of future performance.
FINAL COMPENSATION APPLICATIONS
29
<PAGE>
40. All applications for a final allowance of compensation and the
reimbursement of expenses pursuant to Sections 327, 328, 330, 331 or 503(b) of
the Bankruptcy Code Filed by Professionals (other than Professionals retained by
the Old Indenture Trustee) for services rendered before the Confirmation Date
(the "Final Compensation Application") shall be Filed and served on Reorganized
PHI, the Creditors' Committee and the United States Trustee no later than thirty
(30) days after the Effective Date or such later date as the Court shall
approve; PROVIDED HOWEVER, that any Professional or other person that fails to
timely file an application for allowance shall be forever barred from asserting
such Claims against the Reorganized Debtors. Objections to such Compensation
Applications shall be due no later than fifteen (15) days after service of the
related application. Hearings on the Compensation Applications shall be
established by the Court. After the Effective Date, each Professional may
receive payment for compensation earned and reimbursement of expenses incurred
subsequent to the Confirmation Date from Reorganized PHI relating to the
implementation and consummation of the Plan without the need for filing
applications for post-Confirmation Date services or obtaining approval of the
Court; PROVIDED HOWEVER, that no such fees and expenses shall be paid without
receipt by Reorganized PHI of a detailed written invoice from the Professional.
The Court shall retain jurisdiction to determine any disputes concerning
post-Confirmation Date fee requests related to the implementation of the Plan.
41. The requirement, set forth in the Court's October 13, 1999
Administrative Order with respect to compensation and reimbursement of
Professionals, that interim Professional fee applications for the period from
December 1, 1999 through December 31, 1999 be submitted by January 25, 2000 is
hereby waived, and all applications for approval of Professionals' fees for such
period and any subsequent periods may be included in such Professionals' Final
Compensation Application.
30
<PAGE>
BAR DATE FOR TAX CLAIMS OF GOVERNMENTAL UNITS
42. Pursuant to Section 502(b)(9) and Bankruptcy Rule 3003(c)(3), all
governmental units (as defined in Section 101(27) of the Bankruptcy Code)
seeking to have an Allowed Claim (as defined in Section 101(5) of the Bankruptcy
Code) in respect of taxes against any or all of the Debtors which arose prior to
the Petition Date, must file a written proof of such Claim with the Bankruptcy
Court that substantially conforms to Official Form No. 10, by sending an
original proof of claim to Donlin Recano & Company, Inc. As Agent for the United
States Bankruptcy Court (the "Claims Agent") re: Planet Hollywood International,
Inc. ET AL., P.O. Box 2089, Murray Hill Station, New York, New York 10156 or, if
by overnight courier or by hand to the Claims Agent at 419 Park Avenue South,
Suite 1206, New York, New York 10016 and serve copies upon (a) Planet Hollywood
International, Inc., 8669 Commodity Circle, Orlando, Florida 32819, Attention:
General Counsel; and (b) Debtors' Co-Counsel, Stroock & Stroock & Lavan LLP, 180
Maiden Lane, New York, New York 10038, Attention: Robin E. Keller, Esq. and
Young Conaway Stargatt & Taylor, LLP, Rodney Square North, Eleventh Floor,
Wilmington, Delaware 19899-0391, Attention: James L. Patton, Jr., Esq., so as to
be received on or before 4:00 p.m. Eastern Time on April 10, 2000, which is the
date 181 days after the Petition Date (the "Governmental Unit Claims Bar Date").
43. The Debtors shall give notice of the Governmental Unit Claims Bar
Date by forwarding a copy of a Notice, substantially in the form of that annexed
hereto as Exhibit B, the form of which is hereby approved, to each known
governmental unit at least 35 days before the Governmental Unit Claims Bar Date.
Notice in the manner provided for hereby shall be deemed good, adequate and
sufficient notice of the Governmental Unit Claims Bar Date if it is served,
together with a proof of claim form via the United States Mail, first class
postage prepaid.
31
<PAGE>
44. Any governmental unit that is required to File a timely proof of
claim against the Debtors in the form and manner specified by this Confirmation
Order and that fails to do so on or before the Governmental Unit Claims Bar Date
shall not, with respect to such Claims, receive or be entitled to receive any
payment or distribution of property from the Debtors, the Reorganized Debtors
or, their successors or assigns with respect to such Claims and shall be forever
barred, estopped and enjoined from asserting such Claims against the Debtors,
the Reorganized Debtor or their successors or assigns.
45. All objections to Tax Claims asserted by governmental units in
respect of the Governmental Unit Claims Bar Date shall be Filed and served upon
the Holder of such Claim on or prior to sixty (60) days after the Governmental
Unit Claims Bar Date; PROVIDED HOWEVER, that objections Filed by the Debtors
against the Tax Claims filed by the IRS shall be Filed and served upon the IRS
and its counsel on or after the later of (i) sixty (60) days after the
Governmental Unit Claims Bar Date or (ii) sixty (60) days after notification to
Reorganized PHI of the determination by the Joint Committee on Taxation of the
United States Congress with respect to a refund issued to the Debtors in
connection with the Debtors' 1996 and 1997 tax years.
JURISDICTION
46. Notwithstanding the entry of this Confirmation Order, the
occurrence of the Effective Date or substantial consummation of the Plan, the
Court will retain jurisdiction of all matters arising out of, or related to, the
Chapter 11 Cases as necessary to ensure that the purpose and the intent of the
Plan are carried out and otherwise to the full extent provided herein and in
Section 13.1 of the Plan.
DISSOLUTION OF THE COMMITTEE
32
<PAGE>
47. The Creditors' Committee will be deemed dissolved and the duties of
the Creditors' Committee and the Professionals retained thereby will thereupon
terminate in accordance with Section 14.12 of the Plan, except that counsel for
the Creditors' Committee shall have standing to object to any Final Compensation
Application Filed in these Chapter 11 Cases. The Professionals retained by the
Creditors' Committee and the members thereof shall not be entitled to
compensation or the reimbursement of expenses for any services rendered after
the Effective Date except with respect to any appeal pending on the Effective
Date of an Order entered in the Chapter 11 Cases or to the extent provided for
in Section 14.12 of the Plan.
48. If the Debtors are for any reason unable to consummate the Plan
after the Confirmation Date: (a) nothing contained herein shall be deemed to
constitute a waiver or release of any Claims by or against the Debtors or to
prejudice in any manner the rights of the Debtors or any Persons in any further
proceedings involving the Debtors; and (b) the result shall be the same as if
this Order were not entered, the Plan was not filed and no actions were taken to
effectuate it.
49. Failure specifically to include or reference particular sections or
provisions of the Plan or any related agreement in this Order shall not diminish
or impair the effectiveness of such sections or provisions, it being the intent
of the Court that the Plan be confirmed and such related agreements be approved
in their entirety.
50. To the extent of any inconsistency between the terms of the Plan
and this Confirmation Order, those of the Confirmation Order shall govern.
Dated: Wilmington, Delaware
January __, 2000
---------------------------------
Joseph J. Farnan, Jr.
Chief Judge, United States District Court
33
