<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
SCHEDULE 13D
_______________________
Under the Securities Exchange Act of 1934
RAMTRON INTERNATIONAL CORPORATION
(Name of Issuer)
COMMON STOCK, PAR VALUE $.01 PER SHARE
(Title of Class of Securities)
7519010
(CUSIP Number)
NTC Liquidating Trust as defined in the Second Amended
Plan of Reorganization for the Jointly Administered
Debtors of CSI Enterprises, Inc., Energy Fuels, Ltd.,
Oren Lee Benton, Energy Fuels Exploration Company,
Nuexco Trading Corporation and Energy Fuels Mining
Joint Venture, pending in the United States Bankruptcy
Court for the District of Colorado, administered under
Case No. 95-11642-CEM.
c/o David J. Beckman, Liquidating Trustee
Price Waterhouse LLP
200 East Randolph Drive, Suite 7600
Chicago, Illinois 60601
312/540-1500
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
August 31, 1997
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box [ ].
<PAGE> 2
- --------------------------------------------------------------------------------
CUSIP No. 75190710
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
NTC Liquidating Trust as defined in the Second Amended Plan of
Reorganization for the Jointly Administered Debtors of CSI Enterprises,
Inc., Energy Fuels, Ltd., Oren Lee Benton, Energy Fuels Exploration
Company, Nuexco Trading Corporation and Energy Fuels Mining Joint
Venture, pending in the United States Bankruptcy Court for the District
of Colorado, administered under Case No. 95-11642-CEM. (a)
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON:
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
00
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(D) OR 2(E) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Colorado
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
7,715,411
NUMBER OF -----------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 0
OWNED BY -----------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 7,715,411
PERSON -----------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,715,411
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------
13 PERCENTAGE OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.3%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
00
- --------------------------------------------------------------------------------
<PAGE> 3
ITEM 1. SECURITY AND ISSUER
This schedule relates to the common stock, par value $.01 per share (the
"Common Stock"), of Ramtron International Corporation, a Delaware corporation
("Ramtron"). The principal executive offices of Ramtron are located at 1850
Ramtron Drive, Colorado Springs, CO 80921.
ITEM 2. IDENTITY AND BACKGROUND
This Schedule 13D is being filed by the NTC Liquidating Trust as defined
in the Second Amended Plan of Reorganization (the "Plan") for the Jointly
Administered Debtors of CSI Enterprises, Inc., Energy Fuels, Ltd., Oren Lee
Benton, Energy Fuels Exploration Company, Nuexco Trading Corporation and Energy
Fuels Mining Joint Venture, pending in the United States Bankruptcy Court for
the District of Colorado, administered under Case No. 95-11642-CEM., a Colorado
trust (the "NTC Liquidating Trust"), as the beneficial owner of 4,754,195
shares of Common Stock and the beneficial holder of Warrants for 2,961,216
shares of Common Stock.
The United States Bankruptcy Court for the District of Colorado has
confirmed the Second Amended Plan of Reorganization for the Jointly
Administered Debtors of CSI Enterprises, Inc., Energy Fuels, Ltd., Oren Lee
Benton, Energy Fuels Exploration Company, Nuexco Trading Corporation and Energy
Fuels Mining Joint Venture, pending in the United States Bankruptcy Court for
the District of Colorado, administered under Case No. 95-11642-CEM (the
"Plan"). Pursuant to the Plan and as of August 31, 1997 (the "Effective
Date"), among other things, 4,754,195 shares of Common Stock in Ramtron have
been transferred to the NTC Liquidating Trust. The Plan annexed as Exhibit 2
and the NTC Liquidating Trust Agreement annexed as Exhibit 3 are incorporated
herein by reference.
The principal business of the NTC Liquidating Trust is to liquidate assets
for the benefit of holders of Allowed Claims, as defined in the Plan. The
principal business address and address of the principal office of the NTC
Liquidating Trust is David J. Beckman, Liquidating Trustee, c/o Price
Waterhouse LLP, 200 East Randolph Drive, Suite 7600, Chicago, IL 60601. The
beneficiaries of the NTC Liquidating Trust are listed on Exhibit 1 to this
Schedule 13D, subject to allowance of such entities' claims against the Debtor.
The name, citizenship, business address, and present principal occupation
of the Liquidating Trustee of the NTC Liquidating Trust are set forth on
Schedule I hereto and incorporated herein by reference.
Neither the NTC Liquidating Trust nor the Liquidating Trustee listed on
Schedule I during the last five years (a) has been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or (b) has
been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject to
a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to federal or state securities laws
or finding any violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Under the Plan, as described in Item 2, the NTC Liquidating Trust became
entitled to receive 4,754,195 shares of Common Stock in Ramtron. In addition,
under the Plan, the NTC Liquidating Trust became the holder of
currently-exercisable Warrants at a price of $4.15 per share for 2,961,216
shares of Common Stock.
Page 3 of 7
<PAGE> 4
ITEM 4. PURPOSE OF TRANSACTION
The NTC Liquidating Trust became entitled to receive 4,754,195 shares of Common
Stock in the manner described in Item 3 above, and currently-exercisable
variants for 2, 961, 216 shares of Common Stock. Except as described below,
the NTC Liquidating Trust has no plans or proposals that would result in (1)
the acquisition by any person of additional securities of Ramtron or the
disposition of securities of Ramtron; (2) an extraordinary corporate
transaction, such as a merger, reorganization or liquidation of Ramtron or any
of its subsidiaries; (3) a sale or transfer of a material amount of assets of
Ramtron or any of its subsidiaries; (4) any change in the present board of
directors or management of Ramtron, including any plans or proposals to change
the number or term of directors or to fill any existing vacancies on the board
of directors of Ramtron; (5) any material change in the present capitalization
or dividend policy of Ramtron; (6) any other material change in the business or
corporate structure of Ramtron; (7) changes in the charter, by-laws or
instruments corresponding thereto of Ramtron, or other actions which may impede
the acquisition of control of Ramtron by any person; (8) any class of
securities of Ramtron being delisted from a national securities exchange or
ceasing to be authorized to be quoted in an inter-dealer quotation system of a
registered national securities association; (9) any class of equity securities
of Ramtron becoming eligible for termination of registration pursuant to
Section 12(g)(4) of the Exchange Act; or (10) any action similar to any of
those enumerated above. The NTC Liquidating Trust, however, reserves its right
to change its plans or intentions at any time and to take any and all actions
that it deems appropriate to maximize the value of its investment including,
among other things, from time to time increasing or decreasing the number of
shares of Common Stock by acquiring additional shares, or by disposing of all
or a portion of the shares of Common Stock in open market or privately
negotiated transactions or otherwise, depending on existing market conditions
and other considerations discussed below. The NTC Liquidating Trust intends to
review its investment in Ramtron on a continuing basis and, depending upon the
price and availability of Common Stock, subsequent developments affecting
Ramtron, the general business and future prospects of Ramtron, other investment
and business opportunities available to the NTC Liquidating Trust, general
stock market and economic conditions, tax considerations and other factors
considered relevant, may decide at any time to increase or decrease the size of
its investment in Ramtron. Ultimately, the Liquidating Trustee will distribute
proceeds of the Common Stock to the beneficiaries of the NTC Liquidating Trust.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) The NTC Liquidating Trust beneficially owns 7,715,411 shares of Common
Stock through its ownership of 4,754,195 shares of Common Stock (of which
703,317 shares are subject to a lien in favor of Union Bank of Switzerland),
and currently-exercisable warrants for 2,961,216 shares of Common Stock. Such
shares constitute approximately 19.3% of the 39,965,506 shares of Common Stock
estimated to be outstanding as of the date of this Schedule 13D (includes
37,004,290 shares of Common Stock estimated to be outstanding as of the date of
this Schedule 13D and 2,961,216 shares of Common Stock attributable to the
warrants held by the NTC Liquidating Trust).
(b) The NTC Liquidating Trust, through its ownership of 4,754,195 shares
of Common Stock and certain Warrants, may be deemed to share the power to vote
or direct the vote and dispose or direct the disposition of 7,715,411 shares of
Common Stock.
(c) During the past 60 days, the NTC Liquidating Trust has not effected
any transactions relating to the Common Stock, except as described in Item 3.
(d) Not applicable.
(e) Not applicable.
Page 4 of 7
<PAGE> 5
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
The trustee for the NTC Liquidating Trust is also the trustee for the
Benton Liquidating Trust, an entity that owns 2,069,130 shares in Ramtron.
Because the same trustee administers the NTC Liquidating Trust and the Benton
Liquidating Trust, the two trusts could be considered a group for purposes of
Section 13d. The NTC Liquidating Trust, however, disclaims that it and the
Benton Liquidating Trust are a group for purposes of Section 13d. Of the
4,754,195 shares of Common Stock owned by the NTC Liquidating Trust, 703,317
are subject to a lien in favor of Union Bank of Switzerland, as described in
the Plan (Exhibit 2) and the NTC Liquidating Trust Agreement (Exhibit 3). The
NTC Liquidating Trust does not have any contract, arrangement, understanding,
or relationship with any other person with respect to any security of Ramtron,
other than as described in this Schedule 13D or exhibits hereto.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit No. Description
- ----------- -----------
1. List of beneficiaries of the NTC Liquidating Trust
2. Second Amended Plan of Reorganization for the
Jointly Administered Debtors of CSI Enterprises,
Inc., Energy Fuels, Ltd., Oren Lee Benton, Energy
Fuels Exploration Company, Nuexco Trading
Corporation and Energy Fuels Mining Joint
Venture, pending in the United States Bankruptcy
Court for the District of Colorado, administered
under Case No. 95-11642-CEM.
3. NTC Liquidating Trust Agreement, as amended.
* * * * *
Page 5 of 7
<PAGE> 6
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Schedule 13D is true, complete
and correct.
Dated: October 8, 1997
NTC Liquidating Trust as defined in the
Second Amended Plan of Reorganization for
the Jointly Administered Debtors of CSI
Enterprises, Inc., Energy Fuels, Ltd., Oren
Lee Benton, Energy Fuels Exploration
Company, Nuexco Trading Corporation and
Energy Fuels Mining Joint Venture, pending
in the United States Bankruptcy Court for
the District of Colorado, administered
under Case No. 95-11642-CEM.
By: /s/ David J. Beckman
---------------------------------------
David J. Beckman, not individually, but
solely as Liquidating Trustee
Page 6 of 7
<PAGE> 7
SCHEDULE I
Certain Information Concerning the NTC Liquidating Trust
The person named below is not a beneficial owner of any Common Stock.
David J. Beckman, Liquidating Trustee
U.S. Citizen
c/o Price Waterhouse LLP
200 East Randolph Drive, Suite 7600
Chicago, Illinois 60601
312/540-1500
Mr. Beckman is a Principal of Price Waterhouse LLP.
Page 7 of 7
<PAGE> 1
EXHIBIT 99.1
Exhibit 1
BENEFICIARIES OF NTC LIQUIDATING TRUST
NTC TRUST BENEFICIARIES
-------------------------------------
American Express Travel Related
Services
200 Vesey Street
New York, NY
Ameridata
P.O. Box 75210
Baltimore, MD 21275-5210
Tom L. Anthony
1540 S. Galena Way, #1529
Denver, CO 80231
Arthur Andersen & Co.
1225 17th Street, Suite 3100
Denver, CO 80202
Automatic Data Processing
Department 561
Denver, CO 80271-0651
Richard C. Bares
Hangar 9, Box B4
7375 S. Peoria Street
Englewood, CO 80112
John Barter
6222 S. Hudson Court
Littleton, CO 80121
Sonia Barter
6222 S. Hudson Court
Littleton, CO 80121
William O. Benson
6633 East Vassar
Denver, CO 80224
Clark M. Beyer
1600 N. Oak St., #1710
Arlington, VA 22209
<PAGE> 2
NTC TRUST BENEFICIARIES
-------------------------------------
Dennis Bishop
Greenergy Court, 16F
Greenvale Village
Discovery Bay
HONG KONG
Norman Blome
6256 Northwoods Glenn Drive
Parker, CO 80134
Arthur Boco
740 Pearl Street, #305
Denver, CO 80203
Nicholas Bouchey
128 South Yank Way
Lakewood, CO 80228
Robert Bovey
2603 Valley Drive
Alexandria, VA 22302
Frederick Boyne
R.R. 2, Box 232
Battle Lake, MN 56515
Ann R. Braziel
3181 S. Scafford Street
Arlington, VA 22206
British Nuclear Fuels Plc
Springfield Woods
Salwick Near Preston
Lancashire PR4 OXJ
England
Bureau of National Affairs
1231 25th Street N.W.
Washington, D.C. 20037
Concord Employee Savings
& Investment Plan
1515 Arapahoe Street, Suite 900
Denver, CO 80202
-2-
<PAGE> 3
NTC TRUST BENEFICIARIES
-------------------------------------
Cameco Corporation
2121 11th Street West
Saskatoon, Saskatchewan
Canada S7M 1J3
City of Anaheim
201 S. Anaheim Blvd.
Suite 802
Anaheim, CA 92805
City of Riverside
3601 University Avenue
Second Floor
Riverside, CA 92501
William Cobb
7833 S. Locust Court
Englewood, CO 80112
Comurhex
N.P. 206 78144 Velizy
Villacoublay Cedex
France
William J. Crocker
3903 Fairview Drive
Fairfax, VA 22031
DHL Airways, Inc.
P.O. Box 78016
Phoenix, AZ 85062-8016
Franz J. Dahlkamp
Oelbergstr. 10-Liessem
D 5307 Wachtberg Bonn
Germany
Linda L. Davis
3089 S. Clarkson
Englewood, CO 80110
Kirsten Day
10 Heronvue Road
Greenwich, CT 06831
-3-
<PAGE> 4
NTC TRUST BENEFICIARIES
-------------------------------------
Brad Doores
1675 W. Castle Mesa
Castle Rock, CO 80104
Helen Dudarenko
Krasneprolctarskaya, 32
103830 Moscow
Duft & Partner
Bleicherweg 45
CH-8002 Zurich
ENEL Societa Per Azioni
Via G.B. Martini 3
00198 Roma
Energy Fuels Exploration Co.
1515 Arapahoe St., Suite 900
Denver, CO 80202
Energy Fuels Limited
1515 Arapahoe St., Suite 900
Denver, CO 80202
Faegre & Benson
370 17th Street
Suite 2500
Denver, CO 80202
Fletcher Challenge Industries
155 N.E. 100th Street, Ste 410
Seattle, WA 98125
Florida Power & Light
700 Universe Blvd.
P.O. Box 14000
Juno Beach, FL 33408-0420
-4-
<PAGE> 5
NTC TRUST BENEFICIARIES
-------------------------------------
Edward M. Gabriel
3417 1/2 P Street, N.W.
Washington, D.C. 20007
Dustin Garrow
7 Pin Oak Drive
Littleton, CO 80127
Jill Gilpin
3075 Umatilla
Denver, CO 80210
David Grant
4767 S. Ivory Court
Aurora, CO 80015
Linda L. Gunter
1525 S. George Mason Dr., #13
Arlington, VA 22204
Earl E. Hoellen
1512 Larimer, #40
Denver, CO 80202
Hogan & Hartson
555 13th Street, N.W.
Washington, D.C. 20004
Johnson & Higgins of Arizona
P.O. Box 730309
Dallas, TX 75373-0309
Randal Jones
12 Trejon Road, Suite 18
Lindfield, NSW
2070 Australia
Kelly Jorgensen
1309 E. 17th Avenue
Denver, CO 80218
-5-
<PAGE> 6
NTC TRUST BENEFICIARIES
-------------------------------------
KB Aktiengesellschaft Fuer
Kernbrennstoffe (KKL)
c/o Elektrizitaets-Gesellschaft
Laufenburg AG
CH08022 Zurich
Switzerland
Kazahkstan
Intertech Corporation
Dr. Matthew Grodowski
3 Commerce Drive, Suite 301
Atkinson, NY 03811
Kernkraftwerk Gosgen-Daniken
AG (KKG)
Postfach 64
CH-4658 Daniken
Switzerland
Nancy Kilpatrick
6090 W. 83rd Place
Arvada, CO 80003
Guerman Kornilov
9803 Bristol Square Lane
Montgomery, MD
Kathleen Kuziel
6917 Westmoor Way
San Jose, CA 95129
Karen Lee
14303 E. Dickerson Dr., #C
Aurora, CO 80014
Robert Lewis
5220 China Garden Road
Austin, TX 78730
-6-
<PAGE> 7
NTC TRUST BENEFICIARIES
-------------------------------------
James J. Lightner
Route de la Fontaine
Prevessin 01280 FRANCE
Harold C. Lindberg
15 Hardee Lane
Whispering Pines, NC 28327
Kenten Lindberg
5 Periwinkle
Littleton, CO 80127
Dianna M. Lyons
1401 E. Northcrest Drive
Highlands Ranch, CO 80126
MCI Telecommunications
601 S. 12th Street
Dept. 3319/081
Arlington, VA 22202
Todd A. Macy
9 South Downing St., #91
Denver, CO 80209
Kelly M. Martek
141 W. Irvington Place, #2
Denver, CO 80223
Peter Mazula
2535 Sumac Avenue
Boulder, CO 80304
Miller & Chevalier
655 15th Street N.W.
Suite 900
Washington, D.C. 20005
Misbrener, Deneen
449 Wright St., #1
Lakewood, CO 80228
Richard Munson
76 Dawn Heath Circle
Littleton, CO 80127
-7-
<PAGE> 8
NTC TRUST BENEFICIARIES
-------------------------------------
Gerald L. Murdock
35 Barker Road, #1A
The Peak
Hong Kong
Fletcher Newton
2419 S. Gray Dr.
Lakewood, CO 80227
Boris Nikipelov
[Address Unknown]
Nordostschweizerische Karftwerke
AG (NOK)
Parkstrasse 23
Baden CH-5400
Switzerland
North Atlantic Energy Service Corp.
Yankee Atomic Elec. Co.
580 Main Street
Bolton, MA 01740-1298
NuTrans
1515 Arapahoe St., Suite 900
Denver, CO 80202
Ronald Nuzman
1932 W. Briarwood
Littleton, CO 80120
Pacific Gas & Electric Company
Mail Code A10B
P.O. Box 770000
San Francisco, CA 94177
Park Central Management Co.
c/o Otten, Johnson, Robinson, et al.
950 17th Street, Suite 1600
Denver, CO 80202
Charles N. Peterson
8407 River Rock Terrace
Bethesda, MD 20817
-8-
<PAGE> 9
NTC TRUST BENEFICIARIES
-------------------------------------
Philadelphia Electric Company
2301 Market Street
P.O. Box 8700
Philadelphia, PA 19101
Phoenix Network
550 California, 11th Floor
San Francisco, CA 94104
Thomas C. Pool
2024 Goldenvue Drive
Golden, CO 80401
Robert H. Porter
111 Park Central, #900
Denver, CO 80202
Powell, Goldstein, Frazier & Murphy
191 Peachtree St., NE
16th Floor
Atlanta, GA 30303
Mitchell A. Presnick
Flat 4B, 39 Caine Road
Hong Kong
Don Radcliffe
207 Kirk Avenue
Ypsilanti, MI 48197
Reidman Insurance
822 Lincoln Avenue
Steamboat Springs, CO 80477
Resource Holdings
520 Madison Avenue, 40th Floor
New York, NY 10022
Donna Rives
Route 1, Box 335-2
Osage Beach, MO 65065
John W. Roncalio
3024 Capitol Avenue
Cheyenne, WY 82001
-9-
<PAGE> 10
NTC TRUST BENEFICIARIES
-------------------------------------
T. Frank Roncalio
3024 Capitol Avenue
Cheyenne, WY 82001
Teno Roncalio
3024 Capitol Avenue
Cheyenne, WY 82001
Robert Saffell
31076 Shawnee Lane
Evergreen, CO 80439
Kiichiro Saido
ABS Building 7F
2-4-15 Kudan-Mminami
Chiyoda Ku, Tokyo
Siemens Power Corporation
2101 Horn Rapids Road
P.O. Box 130
Richland, WA 99352-0130
Southern California Edison Company
23 Parker Street
Irvine, CA 92718
Texas Utilities Electric Company
P.O. Box 111
Dallas, TX 75221-0111
Andrew Toft
375 Corona Street
Denver, CO 80218
TradeTech, LLC
One Park Central, #580
Denver, CO 80202
Trammell Crow Company
Department 383
Denver, CO 80291-0631
-10-
<PAGE> 11
NTC TRUST BENEFICIARIES
-------------------------------------
Transcommerce International, Inc.
Zurichstrasse 135
8700 Kusnacht - Zurich
Switzerland
Transnucleaire - Paris
9-11, rue Christophe - Colomb
75008 Paris
France
U.S. West Communications
Denver, CO 80244-0001
Union Electric Company
1901 Chouteau Avenue
St. Louis, MO 63103
University Clinical Pathology
P.O. Box 7700
Indianapolis, IN 46277-3676
Ann Vanderslice
4535 W. Warren Avenue
Denver, CO 80219
Mario Vasquez
Casilla de Correco Central 2897
1000 Buenos Aires
Argentina
-11-
<PAGE> 12
NTC TRUST BENEFICIARIES
-------------------------------------
James E. Vaughan
430 Villas des Hautins
F-01280 Prevessin
France
Hans Vogt
Rebenfeldstrasse 7
CH-4654 Lostorf
Switzerland
Washington Public Power Supply System
P.O. Box 2
Richland, WA 99352-0000
David Westburg
3374 E. Meadow Creek Place
Highlands Ranch, CO 80126
Westinghouse Electric Corporation
P.O. Box 73121
Chicago, IL 60673
Sharon Wheeler
5946 S. Fairfax Court
Littleton, CO 80121
George White, Jr.
197 Meadowood Drive
Portola Valley, CA 94028
William Wiese
1125 Steele Street
Denver, CO 80206
Brent Winans
11452 W. 28th Avenue
Lakewood, CO 80215
Wisconsin Public Service Corporation
P.O. Box 19002
Green Bay, WI 54307-9002
-12-
<PAGE> 13
NTC TRUST BENEFICIARIES
-------------------------------------
Colorado Records Search, Inc.
7114 West Jefferson Avenue
Suite 210
Denver, CO 80235
Global Nuclear Services & Supply, Ltd.
1001 G Street, N.W., Suite 425W
Washington, D.C. 20001
Kyrgyztan
Kara - Balta Mining Kombinat
Bishkek (Frunze)
Republic of Kyrgystan
Navoi Mining & Metallurgy Kombinet
Schevchenko U1.26
706800 Navoi Uzbekistan
Palabora Mining Company Limited
Rio Tinto House
122 Pybus Road
2199 Sandton, South Africa
Techsnobexport Co., Ltd.
Staromonetnyj per., 26
109180 Moscow
Vostgok Eastern Ore Processing
Kombinat
Mr. Mikhail Ivanovich Babek
Ulitsa Gorkogo, 2
322530 Zheltye Vody
Ukraine
Vostokredmet Kombinat
Chkalousk, Tajikistan
-13-
<PAGE> 14
NTC TRUST BENEFICIARIES
-------------------------------------
Braunkohle Transport U.S.A., Inc.
4193 Crescent Drive
St. Louis, MO 63129
Cogema
2 Rue Paul - Dautier BP 4
78141 Velizy
Willacoublay Cedex
France
Edlow International Company
1815 H Street, N.W.
Suite 910
Washington, D.C. 20006
Martin Marietta Utility Services, Inc.
P.O. Box 628 M/S 6007
Piketon, OH 45661
National Board of Boiler & Pressure
Vessel Inspectors
1055 Crupper Avenue
Columbus, OH 43229-1183
Nuclear Cargo & Service GmbH
Postfach 110069, 6450 Hanau 11
Rodenbacher Chaussee 6
David M. Fuller
5099 S. Franklin St
Englewood, CO 80110
Michael Williamson
2390 Kearney Street
Denver, CO 80207
Cambria L. Olson
1643 S. Beech St
Lakewood, CO 80228
-14-
<PAGE> 15
NTC TRUST BENEFICIARIES
-------------------------------------
Peter R. Wood
101 Tudor Drive
Kingston Upon Thames
Surrey KT2 5NP
England
Heather A. Ulibarri
10485 Hoyt Street
Broomfield, CO 80021
Federal Express
Attn: Revenue Recovery Bankruptcy
Dept.
2650 Thousand Oaks Blvd. - Suite 1180
Memphis, TN 38118
Roy Lee Clanton, Jr.
5754 S. Kittredge St.
Aurora, CO 80015-4004
Robert Scott Lumadue
7716 S. Forest St.
Littleton, CO 80122
EVRODIF
116 Avenue Aristide Brand BP 25
92220 Bagneux Cedex
Harold C.Lindberg
15 Hardee Lane
Whispering Pines, NC 28327
Vostokredmet Kombinat
c/o Suzanne M. Rogers, Esq.
240 Josephine Street, Suite 204
Denver, CO 80206
Heather A. Ulibarri
10485 Hoyt Street
Broomfield, CO 80021
Lori Mattics
3081 S. Helena St.
Aurora, CO 80013
-15-
<PAGE> 16
NTC TRUST BENEFICIARIES
-------------------------------------
Xerox Corporation
1301 Ridgeview Drive-300
Lewisville, TX 75057
Carlo Gavazzi Holding AG
Sumpfstrasse 32
6312 Steinhausen
Switzerland
Pepsi-Cola
Attn: John Huey
3801 Brighton Blvd.
Denver, CO 80216
National Board of Boiler & Pressure
Vessel Inspectors
1055 Crupper Avenue
Columbus, OH 43229-1183
Friden Neopost
f/k/a Friden Alcatel
30955 Huntwood Ave.
Haywood, CA 94544
Shawn C. Nitcher
14919 Timberchase Place
Cypress, TX 77429
-16-
<PAGE> 17
NTC TRUST BENEFICIARIES
-------------------------------------
Carlo Gavazzi Holding AG
Sumpfstrasse 32
6312 Steinhausen
Switzerland
AT&T Easylink Services
117 14th Street, N.E.
Atlanta, GA 30309
Pennington Solicitors
Highfield
Brighton Road
Godalming Surrey GV7 INS
American Business Technology
Brooks Catlin
P.O. Box 2386
Merrifield, VA 20001
Texas Utilities Electric Company
Attn: B.W. Cross
1601 Bryan Street, EP12
Dallas, TX 75201-3411
Ralph O. Smith
141 Braemar Drive
Cheshire, CT 06410
Mary Grace Diehl, Esq.
Troutman Sanders LLP
600 Peachtree Street, #5200
Atlanta, GA 30308-2216
Combustion Engineering, Inc.
c/o Valdemar Probst, Esq.
1000 Prospect Hill Road
M/S 7909-0428
Windsor, CT 06095-0500
Southern California Edison Company
c/o Douglas P. Ditonto, Esq.
2244 Walnut Grove Avenue
Rosemead, CA 91770
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<PAGE> 18
NTC TRUST BENEFICIARIES
-------------------------------------
Mr. Hans Vogt
c/o Nuexco Exchange AG
Leberngasse 15
4603 Olten
Switzerland
Cogema Mining, Inc.
7401 Wisconsin Avenue
Bethesda, MD 20814
Attn: Gary Fox
Miller & Chevalier
c/o Mark L. Fulford, Esq.
Sherman & Howard
633 17th Street, Ste 3000
Denver, CO 80202
COMURHEX
Joel Toumelin
Comurhex BP 206
78144 Velizy-Villacoublay
Cedex, France
Department of the Treasury
Internal Revenue Service
600 17th St.
Stop 5028 DEN
Denver, CO 80202-2490
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<PAGE> 19
NTC TRUST BENEFICIARIES
-------------------------------------
China Nuclear Energy Industry Corp.
c/o Simpson, Thacher & Bartlett
425 Lexington Avenue
New York, NY 10017
Attn: Mark Thompson, Esq.
Thad L. Meyer
3560 South Dahlia St.
Denver, CO 80237
ENEL S.p.A.
Stephen W. Seifert, Esq.
Fairfield and Woods, PC
1700 Lincoln #2400
Denver, CO 80203-4524
Consumers Power Company
Danny C. Kelly, Esq.
Van Cott, Bagley, Cornwall & McCarthy
P.O. Box 45340
Salt Lake City, UT 84145-0340
Donald W. Radcliffe
207 Kirk Ave
Ypsilanti, MI 48197
James E. Vaughan
430 Chemin des Hautins 3
F 01280 Prevessin
France
Backus Enterprises No 35 DBA
PIP Printing
1745 Stout Street #103
Denver, CO 80202
Wisconsin Electric Power Company
A William Finke Power Company
231 West Michigan Street
Milwaukee, WI 53203
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<PAGE> 20
NTC TRUST BENEFICIARIES
-------------------------------------
Nuclear Electric, Plc
Nuclear Energy Institute
1776 I Street, N.W., Suite 400
Washington, D.C. 20006-2495
R.D. Odell
243 S. Center
Casper, WY 82601
Siemens Power Corp.
c/o Block and Markus LLC
5299 DTC Blvd., Suite 1300
GreenwoodVillage, CO 80111
Union Bank of Switzerland
299 Park Ave.
New York, NY 10171
Attn: Christian Ullrich
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<PAGE> 21
NTC TRUST BENEFICIARIES
-------------------------------------
David S. Schramm
P.O. Box 47
Golden, CO 80402
Helen Dudarenko
Krasnoproletarskaya 32
103030, Moscow
Russia
Tonya R. Hort
9029 E. Mississippi Ave., F-304
Denver, CO 80231
Concord Employee Benefit Trust
Charles F. McVay, Esq.
Gorsuch, Kirgis L.L.C.
P.O. Box 17180
Denver, CO 80217
KEPCO Resources America Ltd.
Se-Moon Chang, President
216 16th Street Mall, Suite 810
Denver, CO 80202
Pacific Gas & Electric Company
Stephen W. Seifert
Fairfield and Woods PC
1700 Lincoln #2400
Denver, CO 80203-4524
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<PAGE> 22
NTC TRUST BENEFICIARIES
-------------------------------------
Mitchell A. Presnick
Flat 4B, 39 Caine Road
Hong Kong
Warren Williams International Ltd.
705-6 Dominion Centre 43-59
Queen's Road East
Wanchai, Hong Kong
Penny P. Quinn
693 S. Logan Street
Denver, CO 80209
Jervonda L. Nelson
19216 E. Clear Creek
Parker, CO 80134
Colorado Department of Revenue
Tax Audit & Compliance Division
1375 Sherman Street, Room 504
Denver, CO 80261
Intertech Corporation
Weinman, Cohen & Niebrugge PC
1600 Stout Street, Ste 1300
Denver, CO 80202
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<PAGE> 23
NTC TRUST BENEFICIARIES
-------------------------------------
PBCC
3020 Old Ranch Parkway, Ste. 400
Seal Beach, CA 90740-2751
Oren L. Benton
Three Park Central, Suite 900
1515 Arapahoe Street
Denver, CO 80202
Premier Management, LTD.
Three Park Central, Suite 900
1515 Arapahoe Street
Denver, CO 80202
CSI Enterprises, Inc.
Three Park Central, Suite 900
1515 Arapahoe Street
Denver, CO 80202
Energy Fuels Nuclear, Inc.
Rick L. Townley #1000
1515 Arapahoe Street
Denver, CO 80202
Albuquerque Uranium Corporation
Three Park Central, Suite 900
1515 Arapahoe Street
Denver, CO 80202
Intercontinental Energy Corp.
Three Park Central, Suite 900
1515 Arapahoe Street
Denver, CO 80202
Nuexco Exchange AG
Leberngasse 15
4603 Olten
Switzerland
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<PAGE> 24
NTC TRUST BENEFICIARIES
-------------------------------------
Energy Fuels Trading, AG
Three Park Central, Suite 900
1515 Arapahoe Street
Denver, CO 80202
Nuexco Europe, Ltd. (U.K.)
Three Park Central, Suite 900
1515 Arapahoe Street
Denver, CO 80202
Nuexco Asia, Ltd.
Three Park Central, Suite 900
1515 Arapahoe Street
Denver, CO 80202
Concord International Mining And Mgmt.
Three Park Central, Suite 900
1515 Arapahoe Street
Denver, CO 80202
Nuclear Trading & Development, Ltd.
Three Park Central, Suite 900
1515 Arapahoe Street
Denver, CO 80202
Duke Power Company
422 S. Church Street
Legal Department-PB05E
Charlotte, NC 28242-0001
British Nuclear Fuels Plc
S. Perry Thomas, Jr., Esq.
999 Peachtree Street, NE
Atlanta, GA 30309-3996
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<PAGE> 25
NTC TRUST BENEFICIARIES
-------------------------------------
Franchise Tax Board
Special Procedures
P.O. Box 2952
Sacramento, CA 95812-2952
New York Power Authority
Attn: Amy Levine
1633 Broadway
New York, NY 10019
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<PAGE> 26
NTC TRUST BENEFICIARIES
-------------------------------------
Adam Fergusson
15 Warwick Gardens
London W14 8PH
United Kingdom
-26-
<PAGE> 1
Exhibit 99.2
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLORADO
In re: )
)
CSI ENTERPRISES, INC., ) Case No. 95-11642-CEM
ENERGY FUELS, LTD., ) Case No. 95-11645-CEM
OREN LEE BENTON, ) Case No. 95-11648-CEM
ENERGY FUELS EXPLORATION COMPANY, ) Case No. 95-11649-CEM
NUEXCO TRADING CORPORATION, ) Case No. 95-11651-CEM
ENERGY FUELS MINING JOINT VENTURE, ) Case No. 96-19882-CEM
)
Debtors. ) (Jointly-Administered
) Under Case No.
) 95-11642-CEM)
____________________________________________________________
SECOND AMENDED
PLAN OF REORGANIZATION
FOR
THE JOINTLY ADMINISTERED DEBTORS
DATED
AUGUST 18, 1997
____________________________________________________________
<PAGE> 2
Pursuant to Section 1121(a) of Title 11 of the United States Code, the
Official Creditors' Committee of CSI Enterprises, Inc. and Jointly Administered
Debtors (the "Creditors' Committee") as Proponent, and Oren L. Benton, as
Co-Proponent, hereby propose the Plan of Reorganization for the Jointly
Administered Debtors.
ARTICLE I
DEFINITIONS
Unless otherwise provided in this Plan, all terms used herein which are
defined in the Bankruptcy Code shall have the meaning assigned to such terms in
the Bankruptcy Code. For purposes of this Plan, the following words or terms
shall have the meanings set forth below and such meanings shall be equally
applicable to both the singular and plural forms of the word or terms defined:
1.1 "ADMINISTRATIVE CLAIM" shall mean a Claim for payment of an
administrative expense of a kind specified in Section 503(b) of the Bankruptcy
Code and referred to in Section 507(a)(1) of the Bankruptcy Code, including,
without limitation, (a) the actual, necessary costs and expenses of preserving
the Estates and operating the Debtors' businesses which arose or accrued or
shall arise or accrue in the ordinary course of business during the period
between the Petition Date and the Effective Date, provided that for the purpose
of income taxes administrative claim shall include any income tax for the
period between the Petition Date and the Final Tax Day, (b) any Professional
Fee Claim, and (c) any fee or charge assessed against the estate of any of the
Debtors under 28 U.S.C. Section 1930.
1.2 "AFFILIATE" shall have the meaning assigned to such term in Section
101(2) of the Bankruptcy Code.
1.3 "ALLOWED ADMINISTRATIVE CLAIM" shall mean all or that portion of an
Administrative Claim which either (a) has been allowed by a Final Order, or (b)
was incurred by the Debtors in the ordinary course of business during the
pendency of the Cases, provided, that if an Insider is the Holder of such
Administrative Claim, then it shall not be an Allowed Administrative Claim
unless allowed by Final Order.
1.4 "ALLOWED CLAIM AND ALLOWED. . .CLAIM" shall mean that portion of any
Claim, other than an Administrative Claim, against a Debtor to the extent that
(a) it is (i) a Filed Claim and (ii) no objection has been filed as to such
Claim by the last date set by the Court for filing objections to Claims, (b)
such Claim has been allowed by a Final Order of the Court after objection
pursuant to the procedures established in this Plan for Resolution of Disputed
Claims, or (c) such Claim has been allowed by a Final Order of the Court
entered in connection with the Claims Settlement Motion (as defined in Section
6.3, below). The term "Allowed," when used to modify a reference in the Plan
to any Claim or class of Claims, shall mean a Claim (or any Claim in any such
class) that is so Allowed, e.g., an Allowed Secured Claim is a Claim that has
been Allowed to the extent of the value, as determined by the Court pursuant to
Section 506(a) of the Bankruptcy Code, of any
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<PAGE> 3
interest in property of the estate of the Debtor securing such Claim. Unless
otherwise specified in the Plan, the Confirmation Order or in the Final Order
of the Bankruptcy Court allowing such Claim, and except as provided in Section
506(b) of the Bankruptcy Code, "Allowed Claim" shall not include interest on
the amount of such Claim from and after the Petition Date.
1.5 "ASSETS" shall mean, collectively, all of the assets, property,
interests, (including equity interests) and effects, real and personal,
tangible and intangible, wherever situated, of the Debtors as they exist on the
Effective Date or thereafter, and after giving effect in the Benton Estate, and
the NTC Estate, to the transfer of Assets provided for in Section 6.1 of the
Plan.
1.6 "AVAILABLE CASH" shall mean, as of any date of determination, all Net
Distributable Proceeds, net of any reserve being maintained under this Plan.
1.7 "AVOIDANCE ACTION" shall mean any claim or cause of action of an
Estate arising out of or maintainable pursuant to Section 544, 545,
547, 548, 549, 550 or 553 of the Bankruptcy Code or under any other applicable
law, regardless of whether or not such action has been commenced prior to the
Effective Date.
1.8 "AVOIDANCE ACTION PROCEEDS" shall mean the Cash or other property
paid, received, recovered or otherwise acquired as a result of the prosecution
or compromise of Avoidance Actions.
1.9 "BANKRUPTCY CODE" shall mean title 11 of the United States Code, as
amended.
1.10 "BANKRUPTCY RULES" shall mean the Federal Rules of Bankruptcy
Procedure and the local rules of the Court, as applicable from time to time to
the Cases.
1.11 "BAR DATE" shall mean: (i) with respect to Claims arising from the
rejection of an executory contract or unexpired lease pursuant to the Plan,
thirty (30) days after the Effective Date as provided in Section 9.2 of this
Plan; (ii) with respect to Energy Fuels Subsidiary Creditor Claims, the date
set for objecting to confirmation of this Plan; (iii) with respect to
Administrative Claims, the first Business Day twenty (20) days after the
Confirmation Date, provided that for the purpose of income taxes constituting
Administrative Claims the Bar Date shall be 180 days after the filing of an
appropriate income tax return or such additional time as the Court for cause
permits; (iv) with respect to Professional Fee Applications, thirty (30) days
after the Effective Date of this Plan or such other date set by the Court as
provided in Article II of this Plan; (v) with respect to Claims against
Debtors (except EFMJV) other than those Claims set forth in subparagraphs (i)
through (v) above, September 6, 1995; and (vi) with respect to Claims against
EFMJV, the last day to file objections to confirmation of the Plan or such
other date as may be established by the Court.
1.12 "BASEBALL INTERESTS" shall mean all or any Estates' right, title or
interest in Colorado Baseball 1993, Inc., Colorado Baseball Management, Inc.,
Colorado Rockies Baseball Club, Ltd., all income derived therefrom and all
Assets incidental or related thereto.
-3-
<PAGE> 4
1.13 "BENTON" shall mean Oren L. Benton, one of the Jointly Administered
Debtors in the above captioned cases, whether or not he is also a
debtor-in-possession.
1.14 "BENTON AGREEMENT" shall mean the Agreement between the Creditors'
Committee and the Benton Family filed as part of the Claims Settlement Motion.
1.15 "BENTON FAMILY" shall mean Beverly A. Benton and Benton's six
daughters and their families.
1.16 "BENTON ESTATE RETAINED ASSETS" shall mean those Assets retained by
the Benton Estate after giving effect to the provisions of Section 6.1 of this
Plan.
1.17 "BIDDING PROCEDURES ORDER" shall mean the Order Granting Motion for
Approval of (1) Overbid Procedures for Sale of Assets of the Energy Fuels
Debtors; (2) Minimum Overbids; (3) Breakup Fee; and (4) Cost Reimbursement
entered by the Court on August 22, 1996, as amended by the Court on October 22,
1996.
1.18 "BUSINESS DAY" shall mean a day on which commercial banks in New
York or Colorado are not required or authorized by law to be closed.
1.19 "CASE" shall mean, separately or collectively, the Chapter 11
bankruptcy cases of the Debtors as filed and presently pending in the Court.
1.20 "CASH" shall mean cash, deposit accounts, money market accounts and
other cash equivalents.
1.21 "CLAIM" shall mean a claim, as defined in Section 101(5) of the
Bankruptcy Code, against any Debtor or against an Energy Fuels Subsidiary.
1.22 "CLAIMS SETTLEMENT" shall have the meaning set forth in Section 6.3
of the Plan.
1.23 "CLASS" shall mean a class of Claims or Interests as defined in this
Plan.
1.24 "CLASS 4 RESERVE" shall mean the reserve established by each Debtor
for the Holders of Disputed Class 4 Claims under Section 11.3 of this Plan.
1.25 "CLASS 4 RESERVE DISTRIBUTION AMOUNT" shall mean the amount
determined by the Court, pursuant to Section 11.3 of this Plan, as the amount
of estimated Allowed Class 4 Claims for each Debtor for purposes of making
Distributions to Holders of the Class 4 Claims.
1.26 "CLASS 4 RESERVE ORDER" OR "RESERVE ORDER" shall mean the Order of
the Court, entered on or after the Confirmation Date, setting the Class 4
Reserve Distribution Amount.
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<PAGE> 5
1.27 "CONFIRMATION DATE" shall mean the date upon which the Court enters
the Confirmation Order.
1.28 "CONFIRMATION HEARING" shall mean the duly noticed hearing held by
the Court pursuant to Section 1128 of the Bankruptcy Code to consider
Confirmation of this Plan. The Confirmation Hearing may be adjourned by the
Court from time to time without further notice other than the adjourned date of
the Confirmation Hearing.
1.29 "CONFIRMATION ORDER" shall mean the Order of the Court confirming
this Plan.
1.30 "CO-PROPONENT" shall mean Oren L. Benton.
1.31 "COURT" shall mean the United States Bankruptcy Court for the
District of Colorado or any other court of the United States with authority
over the Cases and, with respect to any particular action, proceeding or matter
arising under or related to any of the Cases, any other court which may be
exercising jurisdiction over such proceeding.
1.32 "CREDITOR" shall mean a Person or Entity that is the Holder of a
Claim.
1.33 "CREDITORS' COMMITTEE" shall mean the Official Committee of Unsecured
Creditors appointed by the United States Trustee in these Cases pursuant to
Section 1102 of the Bankruptcy Code.
1.34 "CSI" means CSI Enterprises, Inc., a debtor in the Chapter 11 Case
No. 95-11642 (CEM), whether or not it is a debtor-in-possession.
1.35 "DEBTORS" shall mean Benton, NTC, CSI, EFEX, EFJ, and EFMJV as
debtors and debtors-in-possession.
1.36 "DEFICIENCY CLAIM" shall mean a Claim of a Creditor holding a Secured
Claim arising out of the same transaction, equal to the amount by which the
aggregate Allowed amount of Claim of such Creditor exceeds the sum of (a) any
setoff rights of the Creditor permitted under Section 553 of the Bankruptcy
Code plus (b) the Allowed Secured Claim of such Creditor; provided, however,
that if the Holder of a Secured Claim or the Class of which such Creditor is a
member, makes the election pursuant to Section 1111(b)(2) of the Bankruptcy
Code, there shall be no Deficiency Claim in respect of such Claim.
1.37 "DISCLOSURE STATEMENT" shall mean the Modified First Amended
Disclosure Statement filed by the Creditors' Committee dated February 21,
1997, as approved by the Court and as may be further amended or modified.
1.38 "DISPUTED CLAIM" shall mean a Claim which is not an Allowed Claim
and has not been disallowed by a Final Order of the Court.
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<PAGE> 6
1.39 "DISPUTED SENIOR CLAIM" shall mean any Administrative Claim, Priority
Claim or Priority Tax Claim which is also a Disputed Claim.
1.40 "DISSOLUTION DOCUMENTS" shall mean the Dissolution Agreement made as
of June 12, 1995, by and between EFL, EFEX, the Swiss Utilities and PH Holdings,
Inc. as approved by the Court on May 30, 1995, or any of the Dissolution
Documents (as defined in the Dissolution Agreement).
1.41 "DISPUTED SENIOR CLAIMS RESERVE" shall mean a reserve in an amount
established by the Liquidating Trustee pursuant to Article X of the Plan to pay
a Disputed Senior Claim that becomes an Allowed Administrative Claim or Allowed
Claim, as the case may be.
1.42 "DISTRIBUTION" shall mean any distribution by the Liquidating Trust
to the Holders of Allowed Claims.
1.43 "DISTRIBUTION DATE" shall mean as to Distributions on Allowed Claims
other than Secured Claims, (a) the Initial Distribution Date, (b) thereafter to
the Final Distribution Date, the last Business Day of any calendar quarter if,
on such date, there are Net Distributable Proceeds of at least $1 million
($1,000,000) and, (c) the Final Distribution Date.
1.44 "EFEX" shall mean Energy Fuels Exploration Company, one of the
Jointly Administered Debtors in the above-captioned cases.
1.45 "EFL" shall mean Energy Fuels, Ltd., one of the Jointly Administered
Debtors in the above-captioned cases.
1.46 "EFMJV" shall mean Energy Fuels Mining Joint Venture, one of the
jointly administered Debtors in the above-captioned Chapter 11 case.
1.47 "EFFECTIVE DATE" shall mean the last day of the month in which the
conditions precedent specified in Article XIII hereof have been fulfilled or,
to the extent permitted hereby, waived by the Proponent. However, the
Proponent shall have the right to elect an earlier date for the Effective Date,
which date shall be after the Confirmation Date, upon filing a notice with the
Court, which notice shall be filed three days prior to the proposed Effective
Date.
1.48 "EFMJV PETITION DATE" shall mean August 12, 1996.
1.49 "EFN" shall mean Energy Fuels Nuclear, Inc.
1.50 "EFFECTIVE DATE CASH" shall mean all Cash on hand of the Debtors on
the Effective Date.
1.51 "ENTITY" shall have the meaning assigned in Section 101(15) of the
Bankruptcy Code.
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<PAGE> 7
1.52 "ENERGY FUELS SUBSIDIARY" shall mean Arizona Strip Partners, L.P.,
Arizona 1 Partners, Limited Partnership, Cheyenne River Partners, L.P.,
Hanksville-Blanding Limited Partnership, and Kanab North Partners, Limited
Partnership, and Energy Fuels Nuclear, Inc.
1.53 "ENERGY FUELS SUBSIDIARY CREDITOR CLAIMS" shall mean the Claim of a
Creditor of one or more of the Energy Fuel Subsidiaries as discussed in Section
11.1 of this Plan.
1.54 "ENERGY FUELS SUBSIDIARY CREDITOR RESERVE" shall mean the Reserve
established by the Liquidating Trustee for the Energy Fuels Subsidiary
Creditors Claim as discussed in Section 11.1(b) of this Plan.
1.55 "ENERGY FUELS DEBTORS" shall mean EFEX, EFL, and EFMJV.
1.56 "ESTATE" shall mean each estate which was created by the
commencement of one of the Cases pursuant to Section 541 of the Bankruptcy
Code, and shall be deemed to include, without limitation, any and all
privileges of such Debtor and any and all interests in property, whether real,
personal or mixed, rights, causes of action, avoidance powers or extensions of
time that such Debtor or such estate shall have had effective as of the
commencement of the Case, or which such Estate acquired after the commencement
of the Case, whether by virtue of Section Section 544, 545, 546, 547, 548, 549
or 550 of the Bankruptcy Code or otherwise.
1.57 "FILED CLAIM" shall mean a Claim as to which (a) a proof of claim is
filed in the Court on or before the Bar Date, (b) a proof of claim is deemed
filed under Section 1111(a) of the Bankruptcy Code or (c) a proof of claim was
filed late with leave of the Court.
1.58 "FINAL DECREE" shall mean a Final Order of the Court closing any or
all of the Cases.
1.59 "FINAL DISTRIBUTION" shall mean the Distribution by the Liquidating
Trustee which exhausts the Assets, or the proceeds thereof, remaining in the
Liquidating Trust.
1.60 "FINAL DISTRIBUTION DATE" shall mean the Distribution Date on which
the Final Distribution is made.
1.61 "FINAL ORDER" shall mean an order or judgment of a court (including
one approving a settlement) as entered on the docket which (i) shall not have
been reversed, stayed, modified or amended and as to which the time to appeal
from, or to seek review or rehearing of, shall have expired and as to which no
appeal or petition for review, rehearing or certiorari is pending, or (ii) if
appealed from, shall have been affirmed (or the appeal dismissed) and the time
to appeal from such affirmance or to seek review or rehearing thereof shall
have expired, or no further hearing, appeal or petition for certiorari can be
taken or granted.
1.62 "FINAL TAX DAY" shall mean, with respect to each of the Estates, the
last day which shall be included in a taxable year for which an income tax
return is required to be filed by the Estate or its authorized representative.
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<PAGE> 8
1.63 "FINAL TAX YEAR" shall mean the taxable year for income tax purposes
which includes the Final Tax Day.
1.64 "GENERAL UNSECURED CLAIMS" shall mean all Claims arising on or
before the Petition Date which are not Priority Claims, Priority Tax Claims or
Secured Claims.
1.65 "HOLDER" shall mean the beneficial owner of any Claim or Interest.
1.66 "INITIAL DISTRIBUTION" shall mean the first Distribution to Holders
of Allowed General Unsecured Claims as required by this Plan.
1.67 "INITIAL DISTRIBUTION AMOUNT" shall mean the difference between (a)
Effective Date Cash that is not subject to any Lien and (b) the sum of (i) the
Operating Reserve, (ii) the Fee Application Reserve, (iii) the Disputed Senior
Claims Reserve, and (iv) the Allowed Amount of Administrative and Priority
Claims, other than Priority Tax Claims to be paid in equal installments
pursuant to Section 507 of the Bankruptcy Code.
1.68 "INITIAL DISTRIBUTION DATE" shall mean the first Business Day 30 days
after the Effective Date.
1.69 "INITIAL PETITION DATE" shall mean February 23, 1995.
1.70 "INSIDER" shall include, but not be limited to, the persons set
forth in Section 101(31) of the Bankruptcy Code.
1.71 "INTERESTS" shall mean the rights of Holders of the issued and
outstanding shares, warrants, options or other equity interests of any nature
in any Debtor as of the Petition Date, and as to Benton, the ownership
interests of Oren L. Benton in the Assets of the Benton Estate.
1.72 "JOINTLY ADMINISTERED DEBTORS" shall mean collectively Benton, CSI,
NTC, EFL, EFEX, and EFMJV.
1.73 "LIQUIDATION PROCEEDS" shall mean the Cash (or other proceeds in a
form and amount approved by the Oversight Committee) of sale, collection or
other monetization of any of the Assets received by the Liquidating Trust, or
any Debtor, including sales pursuant to the Purchase and Sale Agreement, after
payment of any brokerage commissions or similar charges which are necessary to
such sale, collection or other disposition, including but not limited to,
Energy Fuels Subsidiary Creditor Claims payable upon closing of the Purchase
and Sale Agreement.
1.74 "LIQUIDATING TRUST" shall mean the grantor trust established
pursuant to the Liquidating Trust Agreement.
1.75 "LIQUIDATING TRUST AGREEMENT" shall mean the agreement substantially
in the form of Exhibit A hereto, to be entered into by the Debtors (through
their attorneys-in-fact, if necessary) and the Liquidating Trustee pursuant to
Section 7.1 of the Plan.
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<PAGE> 9
1.76 "LIQUIDATING TRUSTEE" shall mean that person designated by the
Proponent, pursuant to Section 8.1 of the Plan, and any replacement thereof
duly appointed by the Oversight Committee.
1.77 "LIEN" shall mean, with respect to the Assets, any mortgage, lien,
pledge, charge, security interest, encumbrance or other legally cognizable
security device of any kind affecting such Assets.
1.78 "NEAG" shall mean NUEXCO Exchange A.G., an entity organized under
the laws of Switzerland.
1.79 "NET DISTRIBUTABLE PROCEEDS" shall consist of the Effective Date
Cash, the Liquidation Proceeds, the Avoidance Action Proceeds, all interest,
dividend and other investment income produced by the Assets, less the reserves,
if any, allowed by this Plan.
1.80 "NOTICE AND A HEARING" shall have the same meaning as provided for in
Section 102(1) of the Bankruptcy Code.
1.81 "NTC" shall mean NUEXCO Trading Corp., a Debtor herein.
1.82 "OPERATING RESERVE" shall mean, initially, the amount determined in
good faith by the Proponent to be appropriate to pay all reasonably anticipated
expenses of administering the Liquidating Trust for the first three months and,
thereafter, the amount determined by the Liquidating Trustee to be necessary to
cover reasonably anticipated expenses of administering the Liquidating Trust
for the succeeding three months.
1.83 "OVERSIGHT COMMITTEE" shall mean the committee formed as provided in
Article IX of the Plan.
1.84 "PERSON" shall mean any individual, corporation, limited liability
company, general partnership, limited partnership, association, joint stock
company, joint venture, estate, trust, unincorporated organization, government
or any agency or political subdivision thereof or other entity.
1.85 "NON-DEBTOR ENTITY" shall mean a person other than Benton, CSI, NTC,
EFL, EFEX, or EFMJV.
1.86 "PERMITTED ENCUMBRANCES" shall mean those liens, security interests,
charges, other encumbrances and the Swiss Royalty which remain in the Purchased
Assets after the closing of the Purchase and Sale Agreement.
1.87 "PLAN" shall mean this Second Amended Plan of Reorganization for
Jointly Administered Debtors, as it may be amended or modified from time to
time, including all exhibits and schedules annexed hereto or referenced herein.
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1.88 "PREFERENCE PERIOD PAYMENT" shall mean a payment of Cash by any
Debtor to any Creditor within the time periods provided in Section 547 of the
Bankruptcy Code, or other applicable law, on account of debt owed by that or
any other Debtor prior to the date of such payment, as to which none of the
provisions of Section 547(c) of the Bankruptcy Code or defense of other
applicable law is available.
1.89 "PRIMARY DEBTOR" shall mean the entity to whom consideration which
gives rise to a Claim was primarily and directly furnished where more than one
entity is liable on such Claim or where assets of a Debtor who would not be the
Primary Debtor have been pledged to secure such Claim. In the event the Holder
of a Claim and the Proponents or Liquidating Trustee cannot agree on a Primary
Debtor for a Claim, the same shall be determined after Notice and a Hearing.
The Primary Debtor need not be a Debtor as such term is defined for purposes of
this Plan.
1.90 "PRIMARY CLAIM" shall mean a claim against a Debtor that is related
to consideration which was primarily and directly furnished to such Debtor.
1.91 "PRIORITY CLAIM" shall mean a Claim which is entitled to priority
under Section 507(a)(2) through Section 507(a)(7) of the Bankruptcy Code.
1.92 "PRIORITY CREDITOR shall mean a Creditor that holds an Allowed
Priority Claim.
1.93 "PRIORITY TAX CLAIM" shall mean a Claim that is entitled to priority
under Section 507(a)(8) of the Bankruptcy Code.
1.94 "PROFESSIONAL FEE APPLICATION RESERVE" shall mean the amount
designated by the Proponents prior to the Effective Date as a reserve to cover
Professional Fee Claims that are reasonably anticipated to be payable after the
Effective Date.
1.95 "PROFESSIONAL FEE APPLICATIONS" shall mean applications under
Section 330, 331 or 503 of the Bankruptcy Code for allowance of compensation
and/or reimbursement of expenses in the Chapter 11 Cases, including without
limitation, Claims under Section 503(b)(3) or (4) based on substantial
contribution in the Cases.
1.96 "PROFESSIONAL FEE CLAIM" shall mean a Claim under Section 330, 331
or 503 of the Bankruptcy Code for allowance of compensation and/or
reimbursement of expenses in the Chapter 11 Cases including, without
limitation, Creditors' Committee members' reimbursement of expenses and Claims
under Section 503(b)(3) or (4) based on substantial contribution in the Cases.
1.97 "PROPONENT" shall mean the Creditors' Committee.
1.98 "PRO RATA" shall mean with respect to an Allowed Claim in a class,
the amount expressed as a percentage that any allowed claim in such Class bear
to the total aggregate amount of all Allowed Claims in that same class at any
point in time.
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1.99 "PURCHASE AND SALE AGREEMENT" shall mean the Purchase and Sale
Agreement between Rio Frio and the Energy Fuels Debtors or such other purchase
and sale agreement that may pertain to the sale of the Purchased Assets as
approved by the Court pursuant to the Sale Order.
1.100 "PURCHASED ASSETS" shall have the meaning assigned in the Purchase
and Sale Agreement.
1.101 "PURCHASER" shall mean Rio Frio or such other Person as may be
identified or designated by the Court pursuant to the Sale Order.
1.102 "RIO FRIO" shall mean Rio Frio Holdings (U.S.A.) Inc., the Purchaser
identified in the Purchase and Sale Agreement.
1.103 "SALE ORDER" shall mean the Order of the Court approving the sale
of the Purchased Assets by the Energy Fuels Debtors pursuant to the Purchase
and Sale Agreement.
1.104 "SCHEDULES" shall mean the schedules of assets and liabilities and
any amendments thereto filed by a Debtor with the Court in accordance with
Section 521 of the Bankruptcy Code.
1.105 "SEC" shall mean the Securities and Exchange Commission.
1.106 "SECURITIES ACT" shall mean the Securities Act of 1933, as amended,
15 U.S.C. Section Section 77a et seq., and the rules and regulations
promulgated thereunder by the SEC.
1.107 "SECURED CLAIM" shall mean, as of any date of determination, a
Claim to the extent it is secured on such date by a properly perfected Lien on
any property of any of the Debtors and such Lien is not the subject of an
Avoidance Action on such Date.
1.108 "SENIOR CLAIM" shall mean a claim which is either an Administrative
Claim, other than an Administrative Claim for which Professional Fee
Applications are required to be filed, or a Class 1 or Class 2 Claim.
1.109 "SWISS ROYALTY" shall have the same meaning as assigned in the
Purchase and Sale Agreement.
1.110 "SWISS UTILITIES" shall mean Kernkraftwerk Goesgen-Daeniken AG,
Kernkraftwerk Leibstadt AG and Nordostschweizerische Kraftwerke AG, each a
Swiss Corporation, together with their successors and assigns.
1.111 "TAX CODE" shall mean the Internal Revenue Code of 1986, as amended.
1.112 ". . . TRUST FUND" shall mean the segregated Trust Fund established
in the Liquidating Trust for the Assets of a particular Debtor's Estate, i.e.,
the Benton Trust Fund.
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1.113 "VOTING DEADLINE" shall mean the deadline for filing ballots as
fixed by the Court in the order approving the Disclosure Statement or otherwise.
ARTICLE II
TREATMENT OF ADMINISTRATIVE CLAIMS
The Claims against the Debtors covered in this Article II are not
designated as a Class pursuant to Section 1123(a)(1) of the Bankruptcy Code.
Accordingly, the Holders of such Claims are not entitled to vote on the Plan.
All payments on Claims covered in this Article will be paid from the segregated
Trust Fund of the Debtor against which the Claim is ultimately allowed.
All Allowed Administrative Claims will be paid in full in cash by the
Liquidating Trust as soon as practicable after the later of the Effective Date
or the date such Claim becomes an Allowed Administrative Claim.
Any request for payment of an Administrative Claim must be filed no later
than the Bar Date for Administrative Claims set forth in Section 1.11 of this
Plan or such Administrative Claim shall be forever barred, provided that,
Professional Fee Applications shall be filed no later than thirty (30) days
after the Effective Date, the Applications for the Court Appointed Fee Review
Committee shall be filed thirty (30) days after the filing of their final fee
report, and cure payments shall be governed by Section 10.3 of the Plan. The
filing of the Professional Fee Applications and the award of fees against a
particular Estate shall be governed by the Court's Order Establishing Fee
Application Procedure dated June 21, 1995 as subsequently amended and modified.
ARTICLE III
CLASSIFICATION OF CLAIMS AND INTERESTS
For purposes of the Plan, each Debtor, separately, unless otherwise
specifically provided, shall be deemed to have classified its Claims and
Interests as provided below. A Claim is in a particular Class only to the
extent that the Claim qualifies within the description of that Class and is in
a different Class to the extent that the remainder of the Claim qualifies
within the description of the different Class. A Claim is also classified in a
particular Class only to the extent that such Claim is an Allowed Claim in that
Class.
3.1 Class 1 shall consist of all Priority Claims other than Priority
Tax Claims.
3.2 Class 2 shall consist of all Priority Tax Claims.
3.3 Class 3 shall consist of all Secured Claims. However, for
purposes of voting each Secured Claim will be treated as a separate Class.
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3.4 Class 4 shall consist of all General Unsecured Claims except
General Unsecured Claims, which are also Convenience Class Claims treated in
Class 5 of the Plan, and General Unsecured Claims, which have been subordinated
and are treated in Class 6 of the Plan.
3.5 CLASS 5 (CONVENIENCE CLASS CLAIMS). Only the Benton and NTC
Estates shall have a Class 5 Convenience Class. There will be no Class 5 in
the CSI, EFEX, EFL, and EFMJV Estates. Class 5 shall consist of the following
Claims:
(a) Benton Estate. Allowed General Unsecured Claims of $500,000 or
less. There shall be no right to reduce a Claim to be included in this Class.
(b) NTC Estate. Allowed Unsecured Claims of $100,000 or less,
the Holders of which specifically elect to be included in Class 5, as well as
Holders of Allowed Unsecured Claims of greater than $100,000 who elect to
reduce their Claims to $100,000.
(c) One Claim Per Estate. All Claims of a Holder in a particulate
Estate will be aggregated for purposes of determining eligibility for inclusion
in Class 5.
(d) No Affiliate Claims. No Affiliates will be permitted to
participate in Class 5.
(e) CSI Estate. Although the Plan provides that there is no Class
5 at the CSI Estate, the NTC Estate will pay to the CSI Estate on the Initial
Distribution Date $250,000 if Class 4 of CSI votes in favor of the Plan.
3.6 CLASS 6 (SUBORDINATED CLAIMS). Class 6 shall consist of all Claims
that are subordinated under principles of law and/or equity by this Plan or by
separate Order of the Court entered before or after the Effective Date.
3.7 CLASS 7 (INTERESTS). Class 7 shall consist of all Interests,
including all Interests issued by any Debtor other than Benton, and the
Interest of Benton in the Benton Estate.
ARTICLE IV
TREATMENT OF CLAIMS AND INTERESTS
Each Holder of Allowed Claims or Interests in a particular Class shall
receive the treatment specified in this Article for Holders of Claims or
Interests in such Class except to the extent such Holder shall agree to a less
favorable treatment.
4.1 CLASS 1 (PRIORITY CLAIMS). All Allowed Class 1 Priority Claims, to
the extent not previously paid, shall be paid in full in Cash on the Effective
Date or as soon thereafter as practicable.
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4.2 CLASS 2 (PRIORITY TAX CLAIMS). Priority Tax Claims shall be treated in
accordance with any agreement between the Holder of such Claim and the Debtor,
Proponent or the Liquidating Trustee upon Court Approval of the same. In the
absence of such agreement, Priority Tax Claims, at the option of the Proponent
or Liquidating Trustee, shall be treated in one of two ways:
(a) Unless otherwise agreed in writing by the Holder thereof, each
Class 2 Claim that is an Allowed Claim shall be paid in equal annual
installments of deferred Cash payments over a period not to exceed six years
after the date of assessment of such Claim, each installment to be payable on
the last Business Day of each calendar year and interest shall accrue on such
Claim at the "underpayment" rate applicable to federal tax claims on the
Effective Date and be paid in arrears on the last Business Day of each such
calendar year, provided that such Allowed Class 2 Claim may be prepaid in whole
or part at any time without notice, penalty or premium, and provided, further
that if the Final Distribution Date occurs before the end of such six-year
period, then the unpaid balance of such Allowed Class 2 Claim shall be paid in
full together with all accrued interest on the Final Distribution Date.
(b) If the Allowed Amounts of the Priority Tax Claims are at such a
level to cause uncertainty, in the sole determination of the Oversight
Committee, as to the sufficiency in any Estate of the Net Distributable
Proceeds to fully pay the Allowed Priority Tax Claims of that Estate, the
Liquidating Trustee, in consultation with the Oversight Committee, may elect
instead to pay all Net Distributable Proceeds to the Holders of Allowed
Priority Tax Claims until the same shall be fully paid, and only thereafter to
commence payments to the Holders of Allowed Class 4 and Class 5 Claims.
Alternatively, and provided there is not an agreement with the Holder of a
Priority Tax Claim to the contrary, the Liquidating Trustee shall be authorized
to seek an Order from the Court which would authorize Distribution Proceeds to
be paid to the Holders of Allowed Class 4 and Class 5 Claims of a particular
Estate based on a showing by the Liquidating Trustee to the Court, after Notice
and the opportunity for a hearing having been given to the Holder of each
Priority Tax Claim, that anticipated Net Distributable Proceeds from the Assets
remaining to be liquidated by the Liquidating Trustee for a particular Estate
will fully pay the Allowed Amount of the Priority Tax Claims of such Estate.
Upon entry of such an Order, the Holders of Priority Tax Claims shall have
no further right to recover any Net Distributable Proceeds actually distributed
to the Holders of Allowed Class 4 Claims pursuant to the Order.
4.3 CLASS 3 CLAIMS Except as otherwise agreed in writing by the Holder of
such Claim, including in the term sheets attached to the Claims Settlement
Motion, each Class 3 Claim that is an Allowed Claim shall be satisfied in full
as follows:
(a) Each Holder of a Class 3 Claim shall (i) retain all Liens
securing such Claim until such Claim is fully paid as provided in clause (iii)
below or until such Holder otherwise agrees; (ii) until such time as the Assets
securing such Claim are abandoned to the Holder or until
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such Claim is fully paid as provided in clause (iii) below, receive monthly
interest payments at a market rate of interest on the Allowed Amount of the
Secured Claim, and (iii) receive as soon as practicable following the
liquidation of the Assets securing such Claim, an amount equal to the lesser of
(A) the Liquidation Proceeds resulting from such liquidation or (B) the Allowed
Amount of such Class 3 Claim. To the extent that any Holder of a Class 3 Claim
has a Deficiency Claim in addition to its Class 3 Claim, the Deficiency Claim
is treated under this Plan as a Class 4 Claim.
(b) Notwithstanding subsection (a) above, at the option of the Proponent,
disclosed at or prior to the Confirmation Hearing, any Class 3 Claim may be
treated as unimpaired. Any arrearage or other amounts owed as of the Effective
Date (and any other payments which may at such date be required to make each
such Claim unimpaired) in regards to any Secured Claim being treated as
unimpaired shall be paid in full, in cash, by the Liquidating Trustee from the
Trust Fund of the Debtor against whom the Secured Claim is asserted, on or
before the forty-fifth Business Day after the Effective Date, or as shall
otherwise be agreed to in writing by the Holder of such Claim, and all other
defaults with respect to such Claim required to be cured by Section 1124(2) of
the Bankruptcy Code shall be cured on or prior to the forty-fifth Business Day
after the Effective Date, or at such time or times following the Effective Date
as shall be agreed to in writing by the Holder of such Secured Claim. From and
after the date of such cure any previously accelerated indebtedness shall be
reinstated. Any accrued and unpaid interest required to be paid with respect
to the cure of any defaults shall be paid at the contract rate, but not at any
default or penalty rate of interest.
After the reinstatement of its Class 3 Claim, each Class 3 Creditor will
be entitled to receive payments in accordance with the instruments governing
such Claim or as the Holder of such Claim may otherwise in writing agree, and
to exercise all rights, privileges and remedies available to it under the
instruments governing its Class 3 Claim in accordance with the terms of such
instruments, without need for any application to, or order of, the Bankruptcy
Court.
(c) Notwithstanding subsections (a) and (b) of this Section 4.3, any
Class 3 Claim against any Debtor may be otherwise satisfied by stipulation
between the Holder of such Claim and the Proponent, and/or Liquidating Trustee
which shall be approved by the Court after Notice and a Hearing. Exhibit B
hereto sets forth Claims Settlements of this type that Proponents have to date
arrived at with certain Class 3 Creditors. Entry of the Confirmation Order
shall be deemed approval of such Claims Settlements by the Court, if not
otherwise previously approved by the Court. The treatments set forth in such
Exhibit B supersede the provisions of subsection (a) and (b) of this Section
4.3 as to the Creditors set forth in Exhibit B. Certain of such Claims
Settlements provide for return of collateral to a Secured Creditor on the
Effective Date.
(d) The Proponent and/or the Liquidating Trustee may also elect, at any
time on or after the Effective Date, to satisfy a Class 3 Claim by abandoning
the Assets securing such Claim to the Holder of such Claim, provided, that, the
Holder of such Claim shall retain a Deficiency Claim for such Claim to the
extent the Allowed amount of such Claim exceeds the value of the Assets as
agreed upon pursuant to the Claims Settlements or otherwise actually agreed
upon abandoned to such Holder.
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(e) With respect to each Class 3 Claim as to which more than one
Debtor is liable, or more than one Debtor has pledged Assets to secure such
Claim, such Claim shall be entitled to only one satisfaction under this
Section 4.3
4.4 CLASS 4 CLAIMS.
(a) Each Holder of an Allowed General Unsecured Claim shall receive
its Pro Rata share of all Distributions from the Trust Fund for the respective
Debtors against which such Holder has Allowed Claims, provided, that if a
Holder of an Allowed General Unsecured Claim (or any predecessor Holder of such
Claim) retains a Preference Period Payment from a Debtor, such Holder shall not
receive a Distribution from the Trust Fund for such Debtor until such time as
Holders of Allowed Class 4 Claims who are entitled to receive Distributions
from the same Trust Fund that do not retain a Preference Period Payment have
received Distributions at a ratio to their Allowed Class 4 Claim against such
Debtor which equals the ratio of the Preference Period Payment to the Allowed
Class 4 Claim against the Debtor of such Holder.
(b) Except as may otherwise be agreed in writing by a Creditor, Claims
held by one Creditor against more than one Debtor by virtue of a guaranty or
other instrument of joint liability, or against a Debtor and non-Debtors shall
be fully allowable against each Debtor liable on the Claim, subject to
reduction for the value of any collateral pledged by such Debtor to secure the
Claim against such Debtor (and only such Debtor) provided, however, that, no
Creditor shall recover in the aggregate from all available sources, more than
the sum of (i) one hundred percent (100%) of its Allowed Claim or Claims
against the entity which is the Primary Debtor, and (ii) from persons other
than the Debtors, such additional amounts to which the Holder is legally
entitled which amounts are not included in such Holder's Allowed Claims. The
rights of subrogation of one Debtor against another Debtor or non-Debtor shall
be preserved subject to the limitations in the Bankruptcy Code, including those
set out in Section 509(c) regarding subordination of such claims to the Claim
of a Creditor who has not been paid in full and those specified in Section
6.1(c) of this Plan.
4.5 CLASS 5 CONVENIENCE CLASS CLAIMS. The Holders of Class 5 Claims will
receive the following treatment:
(a) Benton Estate. The Holders of Class 5 Claims at the Benton estate
will be paid pursuant to the following schedule:
<TABLE>
<CAPTION>
Claim Amount Percentage Distribution
------------ -----------------------
<S> <C>
First $100,000 5.0 percent
100,001 to 150,000 4.5 percent
150,001 to 200,000 4.0 percent
200,001 to 250,000 3.5 percent
250,001 to 300,000 3.0 percent
300,001 to 350,000 2.5 percent
350,001 to 400,000 2.0 percent
400,001 to 450,000 1.5 percent
</TABLE>
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<PAGE> 17
450,001 to 500,000 1.0 percent
The Holder of a Class 5 Claim greater than $100,000 will receive the
specified percentage for each increment of the Allowed Claim. To the extent
that insufficient funds are available in the Benton Estate to fund the
Convenience Class, the payments will be funded by the NTC Estate, if Class 5 of
the Benton Estate votes in favor of the Plan.
(b) NTC Estate. Holders of the Class 5 Claims at NTC will receive a
single Distribution equal to fifteen percent (15%) of the Allowed Class 5
claim, such Distribution to be made on the Initial Distribution Date.
4.6 CLASS 6 SUBORDINATED CLAIMS. All Class 6 Claims shall be subordinated,
as a matter of law and/or equity and pursuant either to this Plan or to
an Order of the Court, to all other Allowed Claims. Such subordination may be
sought by the Creditors' Committee prior to the Effective Date, but only by the
Liquidating Trustee after the Effective Date. In the event that all Allowed
General Unsecured Claims shall be paid in full, the Liquidating Trustee shall
distribute, on each Distribution Date after other Allowed General Unsecured
Claims shall have been paid in full, all Available Cash Pro Rata to Holders of
Allowed Class 6 Claims. Those Claims which are being treated as subordinated
and included in Class 6 pursuant to confirmation of this Plan, other than
subordination pursuant to Section 6.1, are set forth in Exhibit C. If a claim
is listed as subordinated on Exhibit C, such treatment shall be the exclusive
subordination treatment of such Claim, irrespective of any action commenced by
any other party. A Claim may be only partially subordinated, and therefore,
treated, in part, in Class 3, Class 4, or Class 5 (as the case may be) and, in
part, in Class 6.
4.7 INTERESTS. All Class 7 Interests, including Benton's interest in his
Estate, shall be extinguished on the Effective Date and shall not retain or
receive any Assets or other consideration under this Plan, until such time as
the Classes senior to Class 7 have been fully paid, as provided in the
Bankruptcy Code. The Liquidating Trustee shall be deemed authorized to cancel
the existing equity interests in NTC, CSI, EFL, EFEX and EFMJV as of the
Effective Date and issue the new equity interests provided for in this Section.
ARTICLE V
ACCEPTANCE OR REJECTION OF THE PLAN
5.1 VOTING CLASSES. The Holders of Claims in Classes 3 through 5,
inclusive, except the Holders of Claims in Class 3 that are treated in
accordance with Section 4.3(b), are impaired and shall be entitled to vote to
accept or reject the Plan, as provided in Section 5.4 below.
5.2 PRESUMED ACCEPTANCE OF THE PLAN. The Holders of Claims in Classes 1
and 2 and Holders of Class 3 Claims treated in accordance with Section 4.3(b)
are unimpaired under the Plan, and therefore, are conclusively presumed to
accept the Plan.
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5.3 PRESUMED REJECTION OF THE PLAN. The Holders of Class 6 Claims and
Class 7 Interests do not receive or retain property under the Plan, are deemed
to reject the Plan, and therefore, are not entitled to vote on the Plan.
5.4 IMPAIRED CLASSES TO VOTE. Except as otherwise required by the
Bankruptcy Code or the Court, each Holder of a Claim that is impaired
under the Plan is entitled to vote to accept or reject the Plan if, as of the
Voting Record Date, its Claim is an Allowed Claim, or its Claim has been
temporarily allowed for voting purposes only by order of the Bankruptcy Court
pursuant to Bankruptcy Rule 3018 (in which case such Claim may be voted in such
temporarily Allowed Amount). Notwithstanding the foregoing, a Holder of a
Disputed Claim which has not been temporarily Allowed as provided above may
nevertheless vote such Disputed Claim in an amount equal to the portion, if
any, of such Claim which is not Disputed and is shown as fixed, liquidated and
undisputed in the applicable Debtor's Schedules or such amount which the
Proponent concedes is Allowed in a filing made by the Proponent in the
Bankruptcy Court, including a Claims Settlement referenced in Exhibit "B".
5.5 SEPARATE VOTING BY DEBTOR. As stated above, each Debtor's Estate
shall be deemed to have the Claims against it classified as provided in
Article III. Separate ballots will be provided in regards to Claims asserted
against each Debtor, irrespective of whether the Debtor is a co-Debtor with a
Primary Debtor in respect to such Claim. The voting results shall be
determined separately for each Debtor.
5.6 VOTING OF CLASS 4 CLAIMS OF DEBTORS/AFFILIATED ENTITIES. The Class 4
Claims held by Debtors shall be deemed voted in the same manner as the
respective Class 4 Creditors of such Debtor shall vote. By way of example, if
the NTC Class 4 Creditors vote to accept the Plan, the NTC Class 4 Claims
against other Debtors shall be deemed voted to accept the Plan in the cases of
those Debtors.
5.7 ACCEPTANCE BY CLASS OF HOLDERS OF CLAIMS. A Class of Holders of
Claims shall have accepted the Plan if the Plan is accepted by at least
two-thirds in amount and more than one-half in number of the Allowed Claims of
such Classes that have voted to accept or reject the Plan.
5.8 NONCONSENSUAL CONFIRMATION (CRAMDOWN). Inasmuch as Class 6 and Class
7 are deemed to reject the Plan, and in the event that any impaired Class of
Claims entitled to vote shall fail to accept the Plan in accordance with
Section 1129(a)(8) of the Bankruptcy Code, the Proponents request that the
Court confirm the Plan in accordance with Section 1129(b) of the Bankruptcy
Code. The Proponents reserve the right to modify the Plan to the extent, if
any, that confirmation pursuant to Section 1129(b) of the Bankruptcy Code
requires or permits such modification.
5.9 EFFECT OF CONFIRMATION OF PLAN AS TO LESS THAN ALL DEBTORS. If the
Court shall find that this Plan is confirmable only as to less than all of the
Debtors, the Proponent shall have the right, in its sole discretion, to file a
motion to revoke the Confirmation Order, which motion shall be granted ex parte
by the Court on filing. Such motion shall be filed no later than five (5)
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Business Days after entry of the Confirmation Order. Upon filing of the
motion this Plan shall be deemed withdrawn and shall be of no force and effect.
ARTICLE VI
SETTLEMENTS EFFECTIVE ON CONFIRMATION
6.1 NTC/BENTON INTER-DEBTOR ISSUES. Confirmation of the Plan shall
constitute a determination of the Court that the transfer of certain assets by
NTC to Benton in mid-1993 pursuant to a certain Sale Agreement, purported to be
effective January 1, 1992, shall be avoided, subject to the provisions hereof
which provisions constitute a settlement of such Avoidance Action. In
addition, the settlement of the Avoidance Action settles claims of NTC against
Benton that certain Assets acquired by Benton subsequent to the execution of
the Sale Agreement with consideration provided by NTC, directly or indirectly,
shall likewise be deemed the proceeds of a fraudulent transfer from NTC to
Benton. The effect of such settlement will be to transfer Assets from the
Benton Estate to the NTC Estate on the Effective Date. The specific Assets to
be retained by the Benton Estate after giving effect to such transfer are set
forth in Exhibit E to the Plan. The Assets retained by the Benton Estate shall
be referred to hereafter as the "Benton Estate Retained Assets". All other
Assets of the Benton Estate are transferred to NTC as part of this settlement.
The foregoing transfer from Benton to NTC shall be subject to the following:
(a) The Assets shall be transferred to NTC subject to any liens
previously asserted against such Assets; provided that such liens shall be
avoidable under the Bankruptcy Code to the same extent they would be avoidable
if the Assets had remained in the Benton Estate, but such actions may only be
commenced by the Liquidating Trustee for the NTC Estate.
(b) Any Class 4 Claim held by a Creditor against the Benton Estate in
respect of which NTC or NEAG is the Primary Debtor will be allowed as a Class 4
Claim against the Benton Estate in an amount equal to one-third of its
otherwise Allowable Amount as a Class 4 Claim against the Benton Estate. The
remainder of such Claim will be treated as a Class 6 Claim against Benton.
This provision shall not apply if the Claim against NTC is founded solely on a
theory of alter ego or similar theories of recovery which claims against NTC
(and against any other Debtor) are deemed disallowed by this Plan. Any Claims
of NTC against Benton or Benton against NTC will be deemed waived and
withdrawn. A vote by a Creditor in favor of this Plan on any Claim held by
such Creditor, shall be deemed consent to the treatment provided herein.
(c) In the event a Claim against any Estate other than the Benton
Estate, which is an Allowed Secured Claim against Benton Estate Retained
Assets, is fully paid (from any source) prior to application of the Benton
Estate Retained Assets to such Claim, such other Estates shall be subrogated,
on a Pro Rata basis, to the rights of the Holder of such Claim to the lien on
the Benton Estate Retained Assets, to the extent such Estates have made payment
on the claim, which subrogation right shall be superior to that of any other
Debtor or Affiliate, or any right of Creditors of the Benton Estate, to a
recovery from such Benton Retained Assets.
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(d) Notwithstanding the allocation of professional fees in the Order
Establishing Fee Application Procedure, the Benton Estate shall be liable for
no more than $1 million in Administrative Claims, the remainder of such
Administrative Claims being transferred to the NTC Estate.
(e) In the event that the Benton Estate has insufficient Assets to
fully pay the Priority Tax Claims and funds of NTC are required to pay such
Claims, of if the Assets of NTC are otherwise utilized to pay Priority Tax
Claims for any reasons, such payment by NTC shall be deemed a loan by NTC to
the Benton Estate, shall have priority to payment of all other Claims at the
Benton Estate, and shall bear interest at the rate provided in the settlement
with the IRS.
(f) To the extent insufficient funds are available in the Benton
Estate to fund Class 5, and if Class 5 votes in favor of the Plan, the NTC
Estate shall fund Class 5 of the Benton Estate. If Class 4 of the CSI Estate
votes in favor of the Plan, NTC shall pay to CSI on the Initial Distribution
Date the sum of $250,000.
6.2 SUBORDINATION OF NEAG CLAIM. Confirmation shall constitute a
settlement of the claims of NEAG against NTC and other issues regarding the
claim of NEAG in the Cases on the terms provided in this Section.
Specifically, NEAG shall be allowed a Class 4 Claim against NTC in the amount
of $100 million, with the remainder of its Claim treated as an Allowed Class 6
Claim in the amount of $220 million. Such Allowed Amounts of the Class 4 and
Class 6 Claims have been determined after taking into effect setoffs available
to NTC against the total NEAG Claim, including setoffs attributable to Claims
against NEAG held by Benton and transferred to NTC pursuant to Section 6.1
above. In addition, the following provisions shall also apply as part of the
above settlement.
(a) Any Holder of Claims in these Cases who also hold Claims against
NEAG and who vote all of such Holder's Claims in favor of the Plan shall have
its Allowed Class 4 Claim at NTC increased by the amount determined by
multiplying the percentage that the NEAG claim has been subordinated (68.75
percent) times the amount of its Allowed Claim at NEAG (such Allowed Claim
determined as if NEAG were a Debtor with a petition filing date of February 23,
1995) less any portion of the NEAG Claim specifically included in its Allowed
Claim at NTC, if any, such increased amount determined pursuant to the
following formula:
(NEAG CLAIM - DUPLICATE NTC AMOUNTS) x 68.75 PERCENT
= INCREASED AMOUNT
(b) NEAG shall have no Claims against any other Debtor and no other
Debtor shall have any Claims against NEAG. A vote in favor of the Plan by a
Debtor is an agreement to waive such claim.
(c) As further consideration for the foregoing settlement of the NEAG
Claim, NEAG releases any Claim to the Enriched Uranium Project ("EUP") stored
at the facilities of Siemens Power Corporation ("SPC") in Richland, Washington
(the "Richland EUP") and the transfer of the Richland EUP contemplated by
certain of the Claims Settlement Agreements shall
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be free and clear of any lien, Claim or interest of NEAG. In addition,
NEAG releases any and all Claims against SPC or any other party claiming any
interest in the Richland EUP arising out of or related to the Richland EUP or
any action or inaction of SPC or any other party regarding the Agreement
Between NUEXCO Trading Corporation and Siemens Power Corporation-Nuclear
Division for the Storage of Enriched UFG dated April 8, 1993, as subsequently
amended.
(d) A Creditor receiving the benefit of Section 6.2(a) of this Plan
shall not assert a Claim in any insolvency proceeding of NEAG in excess of
the NEAG Claim determined for purposes of this Plan, except in respect of
interest accrued after February 23, 1995, and attorneys' fees incurred after
that date. No Creditor shall be entitled to seek to have the NEAG Claim of
another Creditor whose NEAG Claim was determined for purposes of Section 6.2(a)
allowed for a different amount in a NEAG insolvency proceeding.
(e) This settlement, providing for the partial subordination of
NEAG's net claim against NTC, shall constitute a settlement in full of all
actual or potential offsets, deductions and counterclaims of NTC and the other
Debtors against NEAG, including all offsets, deductions and counterclaims
attributable to claims against NEAG held by Benton and transferred to NTC
pursuant to Section 6.1 above, and all offsets, deductions and counterclaims
that the Debtors or any of them may have against NEAG for relief of any kind,
including any Avoidance Actions against NEAG and any Claims to substantively
consolidate the assets and liabilities of NEAG with those of the Debtors. The
allowance of the NEAG Claim in the amounts and the classes set forth above also
constitutes a settlement of the Debtors' objection to the NEAG Claim.
(f) In the event that NEAG or another party in interest shall object to
the settlement set forth in this Section, and such objection is not overruled
in a timely fashion, Proponent reserves the right to take action to effectuate
the settlement in accordance with applicable law. Such action may include the
filing of a United States bankruptcy proceeding for NEAG, in which the
foregoing distribution would be effectuated; the direct distribution to
Creditors of NEAG of the amounts provided for herein as a distribution on the
NEAG Claim; the commencement of a Claims estimation proceeding or other
litigation involving NEAG; or other appropriate relief that will not unduly
delay distributions to Creditors. The Debtors' rights and the rights of the
Liquidating Trustee to object to the Claims of NEAG are preserved until there
is a final settlement binding on all parties. Notwithstanding the foregoing,
Proponent will use its reasonable efforts to avoid unnecessary litigation with
NEAG and to effectuate the settlement, if feasible, through an accord with NEAG
or its duly constituted representatives.
6.3 CLAIMS SETTLEMENTS. Proponent has entered into settlements with
certain significant Creditors in this Case (the "Claims Settlements"), which
Creditors are listed in Exhibit B. The Claims Settlements settle all aspects
of the Claims of such Creditor in these Cases, including the allowed amount of
such Claims in each Case, the extent of liens on Assets, potential Avoidance
Actions against such Creditor, and all other matters related to the
relationships and dealings between the Estates and the respective Creditor,
except as otherwise provided in the agreements documenting a particular Claims
Settlement. A separate motion has been filed by Proponent and the Debtors
seeking approval of each of these Claims Settlements with the actual settlement
agreements, or if such settlement has not been fully documented an agreed term
sheet, attached thereto (the "Claims
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Settlement Motion"). In addition, the Claims Settlement Motion seeks approval
of the Benton Agreement between the Creditors' Committee and Benton and the
Benton Family. If not previously approved by Order of the Court, the
Confirmation Order constitutes an order granting the Claims Settlement Motion
and approving each Claims Settlement and the Benton Agreement. Approval of a
Claim Settlement on behalf of a Creditor under this Section, or a vote in favor
of this Plan by any Creditor, shall constitute the further agreement of such
Creditor to not challenge any aspect of any other approved Claim Settlement,
either in these Cases, or in the NEAG insolvency proceeding.
ARTICLE VII
IMPLEMENTATION OF PLAN
7.1 TRANSFER OF ASSETS FROM DEBTORS TO LIQUIDATING TRUST. On the
Effective Date, and after giving effect to Section 6.1 hereof, the Debtors
shall transfer and assign all the Assets, or cause them to be transferred and
assigned to the Liquidating Trust, (which trust shall be deemed to be a
liquidating trust under Treasury Regulation Section 301.7701-4(d) and which
transfer shall be deemed a transfer to all Holders of Allowed Claims followed
by a deemed transfer by the Holders to the Liquidating Trust) to hold in trust
for the benefit of all Holders of Allowed Claims pursuant to the terms hereof,
and of the Liquidating Trust Agreement; provided that, if the Proponent elects
to preserve the business of NTC, such Assets shall instead vest in such Debtors
and the equity interests in such entities shall be transferred to the
Liquidating Trust to be held in the respective Trust Fund for the benefit of
the Creditors of those Estates; and provided, further, that if any interest in
any portion of the Baseball Interests are retained by the Benton Estate, as
provided in Section 7.2 (after giving effect to Section 6.1), then only such
interest as is also granted by the Liquidating Trustee shall be transferred to
the Liquidating Trust. No asset, except the Baseball Interests, can remain in
the Benton Estate after the Effective Date. The Debtors shall transfer the
Assets to the Liquidating Trustee in the form prescribed by the Proponent to
the extent permitted by law. The form selected by the Proponent may include
(i) the direct transfer of a tangible asset, (ii) the direct transfer of an
intangible asset such as stock in a corporation or the interest in a
partnership, or (iii) the assets of a corporation or a partnership owned by the
Estate after distribution but only after compliance with all applicable law.
The Debtors shall take all actions necessary to achieve this result. In the
event that the Debtors shall fail to take such actions, the Liquidating Trustee
appointed as provided in Section 8.1 shall be deemed to hold an irrevocable
proxy and power of attorney on the Debtors' behalf to take such action. The
Assets of the Estates of each particular Debtor shall be held as separate Trust
Funds in the Liquidating Trust. The Liquidating Trust shall assume the
Debtors' obligations to make distributions on account of Claims in accordance
with this Plan. The Liquidating Trustee shall cause a valuation to be made of
the Assets and that valuation shall be used by the Liquidating Trustee and the
Holders of Allowed Claims for all federal income tax purposes but shall not be
deemed binding on the Liquidating Trustee in regards to the liquidation of the
Assets. Except as otherwise provided by this Plan or the Liquidating Trust
Agreement, upon the Effective Date, title to the Assets shall pass to the
Liquidating Trust free and clear of all Claims and Interests, in accordance
with Section 1141 of the Bankruptcy Code, except for Liens on the Assets held
by Holders of Allowed Secured Claims (including claims which become Allowed
Claims after the Effective Date).
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7.2 SPECIAL PROVISION FOR BASEBALL INTERESTS.
(a) In allocating the Baseball Interests between the Benton and NTC
Estates as required by the settlement contained in Section 6.1, the NTC Estate
shall be initially allocated the limited partnership interests in Colorado
Rockies Baseball Club, Ltd. and the Benton Estate shall be allocated the
interests in Colorado Baseball Management, Inc. and Colorado Baseball 1993,
Inc. To the extent the actual value of the interests initially allocated to an
Estate exceeds the sharing ratios provided in Section 6.1 and Exhibit E hereof,
the Estate that has not received its proper allocation shall be deemed to have
an interest in the proceeds of the Baseball Interests allocated to the other
Estates.
(b) If the Proponent is unable to obtain the necessary consents, if
any, to the transfer of the Baseball Interests to the Liquidating Trust or
if such transfer could otherwise cause a breach of the Estates obligations
under agreements relating to the Baseball Interests, the Liquidating Trustee,
in his sole discretion, may, but shall not be obligated to, cause the Benton
Estate to continue to hold legal title to the Baseball Interests remaining with
the Benton Estate, or so much thereof as is necessary to prevent a breach,
subject to such terms as the Liquidating Trustee shall deem appropriate
including, without limitation, providing the Liquidating Trustee a
participating interest in all revenues, receipts, profits, income, dividends,
distributions or other money of any nature received from the Baseball Interests
or any Person or Entity on account of the Baseball Interests, including without
limitation all proceeds from the sale or other disposition of any or all of the
Baseball Interests, such participating interest to be held in the Trust Funds
for the Benton and NTC Estates, as required, after giving effect to Sections
6.1 and 7.2(a) hereof. So long as the Benton Estate continues to hold legal
title, as provided above, then the Benton Estate shall be deemed for all
purposes, the shareholder of Colorado Baseball 1993, Inc., and Colorado
Baseball Management, Inc., subject to the right of the Liquidating Trustee to
require that (i) the Liquidating Trustee shall be deemed to hold an irrevocable
proxy and power of attorney to act on the Benton Estate's behalf with respect
to the Baseball Interests or any of them; (ii) Colorado Baseball 1993, Inc.,
Colorado Baseball Management, Inc., Colorado Rockies Baseball Club, Ltd. shall
be deemed ordered in the Confirmation Order to pay over all payments on account
of the Baseball Interests as the Liquidating Trustee shall direct; and (iii)
the Benton Estate shall not sell, encumber or otherwise dispose of any interest
in the Baseball Interests without the express prior written consent of the
Liquidating Trustee. To the extent required to effectuate the purposes of this
section, the Liquidating Trustee shall be deemed the representative of the
Estates in regard to the administration of the Baseball Interests.
7.3 EFFECT OF CONFIRMATION.
(a) On the first day of the month following the Effective Date Benton
shall be discharged pursuant to Section 1141(d) from any debt that arose before
Confirmation and shall no longer be deemed debtor-in-possession. The discharge
of Benton individually shall not discharge any Estate's liability on account of
a Class 3 Claim treated in accordance with subsection 4.3(b) of the Plan. Any
action provided for elsewhere in the Plan to allow title of any Assets to
remain in the name of a Debtor following the Effective Date, including the
actions contemplated in Section 7.1
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of the Plan, shall not delay the effectiveness of the full and complete
discharge of Benton pursuant to Section 1141(d).
(b) On the Confirmation Date the provisions of the Plan shall be
binding on the Debtors, the Estates, the Affiliates, all Creditors of the
Debtors, all Holders of Interests and all other parties-in-interest whether or
not such entities have accepted the Plan.
(c) From and after the Confirmation Date, the stay of an act against
Assets under 11 U.S.C. Section 362(a) shall continue until the Effective Date
as provided in 11 U.S.C. Section 362(c).
(d) The Confirmation of the Plan or the allowance of a Claim shall not
affect the joint and several liability of any codefendant, co-obligor,
guarantor or other Person or Entity, which may be liable with a Debtor (except
as expressly provided herein as to Claims which could be asserted against more
than one Debtor), or any Lien on any property of such Persons or Entity (except
as to the Purchased Assets of the Energy Fuels Debtors) and such liability and
Lien shall continue unabated with respect to such person or Entities and their
property to the full extent of applicable non-bankruptcy law.
(e) The Confirmation Order shall, on the Effective Date, act as a
full and complete release and discharge by the Debtors and their Estates, of
the members of the Creditors' Committee, their agents, and employees, and of
any professionals whose employment was approved by the Court, from any further
obligation, and from any and all manner of actions, causes of action, claims,
obligations, suits, debts, sums of money, accounts, reckonings, covenants,
contracts, controversies, agreements, promises, damages, judgments and demands
whatsoever, whether in law or in equity, which the Debtors, or their Estates
had, may in the future have, or now have, whether known or unknown, contingent
or absolute arising from any actions taken or not taken in such capacity,
including any merely negligent action or inaction, in connection with the
Cases, except for willful misconduct.
7.4 ABANDONMENT. With the prior consent of the Oversight Committee,
the Liquidating Trustee may abandon, on notice to such parties as are entitled
to the same, any property which he determines in his reasonable discretion to
be of de minimis value to the Liquidating Trust, including any pending
adversary proceeding or other legal action commenced or commenceable by the
Liquidating Trust. If any party served with the foregoing notice provides a
written objection to the Liquidating Trustee prior to the expiration of such
thirty-day period, with respect to the proposed abandonment of such property,
then such property may be abandoned only pursuant to an application made to the
Court. Upon proper motion and notice to the Liquidating Trustee, any party in
interest may make an application to the Court to require the Liquidating
Trustee to abandon specified property. Certain property may be abandoned
without further action on the Effective Date if so provided by a Claims
Settlement Agreement.
7.5 RESERVATION OF RIGHTS OF THE ESTATES. All claims or causes of
action, cross-claims and counterclaims of the Debtors of any kind or nature
whatsoever, against third parties arising before the Confirmation Date that
have not been disposed of prior to the Confirmation Date including, without
limitation, Avoidance Actions shall be preserved for the benefit of the
Liquidating
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Trust except for such claims or causes of action, cross-claims and
counterclaims of the Debtors which have been released hereunder or pursuant to
a Final Order.
7.6 TREATMENT OF PREFERENCE PERIOD PAYMENT. Any Creditor that is the
subject of a preference claim under Bankruptcy Code Section 547 who agrees to
settle such claim with the Proponent shall be entitled to credit the Preference
Period Payment as such term is defined in Section 1.88 of this Plan against
subsequent distributions on the Class 4 or Class 5 Claims of such Creditor as
provided in Section 11.4 hereof. Such settlement must be approved by the Court
before the Effective Date of the Plan and the Creditor must have returned to
the Estate of the relevant Debtor within ten days of the order approving the
settlement by the Court becoming a Final Order, unless otherwise provided in
the applicable Settlement Agreement, all preferential transfers received by
such Creditor, excepting only the Preference Period Payment. This provision
shall not be applicable to settlements of Avoidance Actions under Section 547
of the Code occurring after the Effective Date.
7.7 RESERVATION OF RIGHTS OF CREDITORS. All Claims, Liens, causes of
action, cross-claims and counterclaims of any Creditor, of any kind or nature
whatsoever, against any non-Debtor Entity arising before the Confirmation Date
that have not been disposed of prior to the Confirmation Date, or settled
pursuant to this Plan, shall be preserved. Further, all defenses that may have
existed as of the Petition Date with respect to any claim of the Debtors'
Estates, or of any other Person, arising under Section 541, 542, 543, 544, 546,
547, 548, 549 or 553 of the Bankruptcy Code are expressly reserved to each of
the Creditors.
7.8 APPOINTMENT AS ATTORNEY-IN-FACT. To assure that all instruments of
transfer and other documents are duly executed on behalf of the Estates in the
event the Debtors fail to cooperate, on the Effective Date, the Liquidating
Trustee shall be deemed, by operation of law and the Confirmation Order and
without need for any action by Benton or any other person affiliated with the
Debtors or any officer or director of such persons or entities, to hold an
irrevocable power-of-attorney on behalf of the Estates with respect to the
Estates and all Assets therein.
7.9 CORPORATE OFFICERS. For any Affiliate, other than an individual,
which is controlled by a Debtor and which is not a Debtor, the officers,
directors, or other persons with authority to act on behalf thereof shall
continue on and after the Effective Date to hold such office and to exercise
such authority; provided that the Liquidating Trustee may terminate such
officers, directors, or other Persons with authority in his sole discretion and
may designate others to fill such positions and exercise all authority on
behalf of such Affiliate. Nothing in this Section shall be deemed to provide
the Liquidating Trustee with greater rights regarding the Baseball Interests
than exist under applicable law and agreements which have not been rejected.
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ARTICLE VIII
APPOINTMENT OF THE LIQUIDATING TRUSTEE
8.1 APPOINTMENT. Before the conclusion of the Confirmation Hearing, the
Proponent shall designate the Liquidating Trustee, which designation shall
constitute the appointment of the same, effective on the Effective Date.
8.2 STATUS OF THE TRUSTEE. Effective on the Effective Date, the
Liquidating Trustee shall be the representative of the Estates as that term is
used in Section 1123(b)(3)(B) of the Bankruptcy Code and shall have the rights
and powers provided for in the Bankruptcy Code in addition to any rights and
powers granted herein. In his capacity as the representative of the Estates,
the Liquidating Trustee shall be the successor-in-interest to the Debtors and
the Creditors' Committee with respect to any Avoidance Action or any other
contested matter or adversary proceeding (the "Action") commenced by a Debtor
or the Creditors' Committee prior to the Confirmation Date and shall be deemed
substituted for the same as the party in such litigation. All such Actions
(whether or not such Actions have been commenced as of the Effective Date), and
other actions and any and all other claims, rights or interests constituting
Assets, shall be preserved, retained and enforced by the Liquidating Trustee as
the representative of the Estates pursuant to Section 1123(b)(3)(B) of the
Bankruptcy Code.
8.3 AUTHORITY. Subject to the limitations contained herein, the
Liquidating Trustee shall have the following powers, authorities and duties, by
way of illustration and not of limitation:
(a) Manage, sell and convert all or any portion of the Assets to Cash
and distribute the Net Distributable Proceeds as specified in the Plan;
(b) Release, convey or assign any right, title or interest in or
about the Assets of any portion thereof;
(c) Pay and discharge any costs, expenses, professional fees or
obligations deemed necessary to preserve or enhance the value of the Assets,
discharge duties under the Plan or perform the purpose of the Plan;
(d) Open and maintain bank accounts, deposit funds, draw checks, and
make disbursements in accordance with the Plan;
(e) Except as provided in Section 8.13 below, engage and have such
attorneys, accountants, engineers, agents, tax specialists, financial advisors,
appraisers, investment bankers, other professionals, and clerical and
stenographic assistance as may, in the discretion of the Liquidating Trustee,
be deemed necessary;
(f) Sue and be sued and file or pursue objections to Claims;
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(g) Enforce, waive or release rights, privileges or immunities of any
kind;
(h) Vote any share or shares of stock and otherwise exercise the rights
appurtenant to ownership of such stock;
(i) In general, without in any manner limiting any of the foregoing,
deal with the Assets or any part or parts thereof in all other ways as would
be lawful for any person owning the same to deal therewith, provided, however,
that the investment powers of the Liquidating Trustee, other than those
reasonably necessary to maintain the value of the assets of the Liquidating
Trust and to further the liquidating purpose of the Trust, are limited to the
power to invest in demand and time deposits, such as short-term certificates of
deposit, in banks and other savings institutions, or other temporary, liquid
investments, such as United States Treasury Bills;
(j) Institute or continue litigation, including Avoidance Actions,
which were or otherwise could have been brought by the Debtors or Creditors'
Committee on behalf of the Estates, and prosecute or defend all litigation or
appeals on behalf of the Estates and, when appropriate, settle such actions and
claims with the approval of the Court after hearing on notice, provided that
without the prior consent of the Oversight Committee, the Liquidating Trustee
shall not enter into any settlement of any Claim that results in an allowed
Claim of $100,000 or more;
(k) Obtain and pay for insurance coverage relative to the proper
performance of his duties under the Plan and to indemnification for himself
and others provided for in the Plan;
(l) At the appropriate time, ask the Court to enter the Final Decree;
and
(m) Without limitation, do any and all things necessary to accomplish
the purposes of the Plan.
8.4 SEPARATE TRUST FUNDS. After giving effect to the provisions of
Section 6.1 hereof, the Assets for each Debtors' Estate shall be held by the
Liquidating Trustee in separate and segregated trust funds for the benefit of
the Creditors of such Debtor, all of which in the aggregate constitute the
Liquidating Trust.
8.5 OBJECTIVES. The Liquidating Trust is created for the primary purpose
of liquidating the Assets, with no objective to continue or engage in the
conduct of a trade or business, except to the extent reasonably necessary to,
and consistent with, the liquidating purpose of the Liquidating Trust. In
selling the Assets, or otherwise monetizing them, the Liquidating Trustee shall
use its best efforts to maximize the amount of Liquidation Proceeds derived
therefrom. The Liquidating Trustee shall seek to accomplish the sale or
monetization of the Assets within a reasonable period of time to avoid undue
delay in Distribution to Holders of Allowed Claims. The Liquidating Trustee
shall consult with the Oversight Committee on an on-going basis to develop
strategies for Asset disposition. The Liquidating Trust shall terminate at
such time as the Assets have been sold or distributed and claims pursued or
abandoned, but in any event no later than 5 years from the date of its
creation, provided, that if warranted by the facts and circumstances, and
subject
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to the approval by the Court upon a finding that the extension is
necessary to the liquidating purpose of the Liquidating Trust the term may be
extended for a finite term based on the particular facts and circumstances.
Each such extension must be approved by the Court within 6 months of the
beginning of the extended term.
8.6 EXPENSES. The Liquidating Trustee shall be authorized to pay
obligations or expenses of, or relating to, the Assets, or to Claims against
the Estates, when the Liquidating Trustee, in his reasonable discretion, deems
it to be in the best interest of the Holders of Allowed General Unsecured
Claims or necessary to effectuate the Plan. Expenses and Claims shall be paid
only by the Trust Fund which incurred the expense or liability. In the event
the expense or liability cannot be clearly allocated to one Trust Fund, the
Liquidating Trustee, in consultation with the Oversight Committee, shall make
an equitable allocation including such allocation to, or on behalf of, the
Energy Fuels Trust Funds as is appropriate.
8.7 PAYMENT OF ENERGY FUELS SUBSIDIARY CREDITOR CLAIMS. Prior to making
any Distribution, or payments to Holders of Administrative Claims, the
Liquidating Trustee shall pay all Energy Fuels Subsidiary Creditor Claims,
unless such Claim was assumed by the Purchaser and/or constitutes a Permitted
Encumbrance. In the exercise of reasonable business judgment, the Liquidating
Trustee may also establish the Energy Fuels Subsidiary Creditor Reserve;
provided, however, that nothing herein shall prevent the Liquidating Trustee
from seeking an order from the Court, after Notice and Hearing, approving the
amount of the Energy Fuels Subsidiary Creditors Reserve after which all rights
of Energy Fuels Subsidiary Creditors shall be limited solely against such
Reserve.
8.8 DISTRIBUTIONS. The Liquidating Trustee shall be responsible for
making Distributions described in the Plan. The Liquidating Trustee may effect
such Distributions by causing one or more of the Debtors' Affiliates to make
such Distributions directly to Holders of Allowed Claims, if the Liquidating
Trustee deems such approach to be in the best interests of Creditors.
8.9 GENERAL INDEMNIFICATION. The Liquidating Trust shall indemnify and
hold harmless any Person or Entity who was, or is, a party, or is threatened to
be made a party, to any pending or contemplated action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that such Person or Entity is or was the Liquidating Trustee or a member of the
Oversight Committee, or an agent, attorney, accountant or other professional
for the Liquidating Trustee or the Oversight Committee, against all costs,
expenses, judgments, fines and amounts paid in settlement, actually and
reasonably incurred by such entity in connection with such action, suit or
proceeding or the defense or settlement of any claim, issue or matter therein,
to the fullest extent, except to the extent attributable to willful misconduct
or gross negligence. Costs or expenses incurred by any such entity in
defending any such action, suit or proceeding may be paid by the Liquidating
Trust in advance of the institution or final disposition of such action, suit
or proceeding, if authorized by the Liquidating Trustee and the Oversight
Committee. The Liquidating Trustee may in his discretion purchase and maintain
insurance on behalf of any Person or Entity who is or was a beneficiary of this
provision.
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8.10 NO RECOURSE. Except as provided in Section 8.11 below, no recourse
shall ever be had, directly or indirectly, against the Liquidating Trustee
personally or against any agent, attorney, accountant or other professional for
the Liquidating Trustee, by legal or equitable proceedings or by virtue of any
statute or otherwise, nor upon any promise, contract, instrument, undertaking,
obligation, covenant or agreement whatsoever executed by the Liquidating
Trustee under the Plan, or by reason of the creation of any indebtedness by the
Liquidating Trustee under this Plan for any purpose authorized by this Plan, it
being expressly understood and agreed that all such liabilities, covenants, and
agreements shall be enforceable only against and be satisfied only out of the
Assets or such part thereof as shall under the terms of any such agreement be
liable therefor or shall be evidence only of a right of payment out of the
Assets.
8.11 LIMITED LIABILITY. The Liquidating Trustee shall not be liable for
any act he may do or omit to do while acting in good faith and in the exercise
of his best judgment, and the fact that such act or omission was advised by an
authorized attorney for the Liquidating Trustee, shall be evidence of such good
faith and best judgment; nor shall the Liquidating Trustee be liable in any
event, except of his own gross negligence or willful misconduct.
8.12 RESIGNATION OR REMOVAL. The Liquidating Trustee may resign at any
time by giving at least 30 days written notice to the members of the Oversight
Committee, provided that the Liquidating Trustee shall continue to serve until
the appointment of the successor Trustee is effective. If the Oversight
Committee at any time desires to terminate the appointment of the Liquidating
Trustee, the Oversight Committee may do so by a written instrument, addressed
to the Liquidating Trustee. In case of the resignation, removal or death of
the Liquidating Trustee, a successor shall thereupon be appointed by the
Oversight Committee.
8.13 ENGAGEMENT OF PROFESSIONALS BY THE LIQUIDATING TRUSTEE. The
Liquidating Trustee shall obtain the approval of the Oversight Committee prior
to retention and engagement of any professional. The fees and expenses of such
professionals shall be paid from the Operating Reserve.
8.14 STATEMENTS. The Liquidating Trustee shall deliver to each member of
the Oversight Committee a statement within ten (10) Business Days after the end
of each calendar quarter showing (i) all receipts and disbursements of the
Liquidating Trust (including each of the Reserves) during such quarter, and
(ii) the amount of (A) Available Cash and (B) each of the Reserves, in each
case at the beginning and end of such quarter, such statement to be certified
by the Liquidating Trustee as being true and accurate in all material respects.
To the extent practical, the statements shall provide separate information for
each Trust Fund.
8.15 TAX RETURNS.
(a) The Liquidating Trustee shall file all tax returns and other
filings with governmental authorities on behalf of the Liquidating Trust and
the assets it holds, including tax returns for the Liquidating Trust as a
grantor trust pursuant to Section 1.671-4(a) of the United States Income Tax
Regulations. The Liquidating Trustee shall provide such information to the
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beneficiaries of the Trust as will enable them to properly file their separate
tax returns and withhold and pay over any amounts required by tax law.
(b) The Liquidating Trustee is authorized to act as agent for the
Estates in withholding or paying over any amounts required by law (including
tax law) to be withheld or paid by the Estates in connection with the transfer
and assignment of the Assets to the Liquidating Trust.
8.16 COMPENSATION. The Liquidating Trustee shall receive compensation
for his services in accordance with the terms of the Liquidating Trust
Agreement, which compensation shall be equitably allocated by the Liquidating
Trustee, in consultation with the Oversight Committee, to the Trust Funds.
8.17 FURTHER AUTHORIZATION. The Liquidating Trustee and the Oversight
Committee shall be entitled to seek such orders, judgments, injunctions and
rulings as they deem necessary to carry out the intentions and purposes, and to
give full effect to the provisions, of this Plan.
8.18 STATUS OF LIQUIDATING TRUSTEE. The Liquidating Trustee shall be a
party-in-interest as to all matters over which the Court has jurisdiction.
ARTICLE IX
APPOINTMENT OF THE OVERSIGHT COMMITTEE
9.1 CREATION OF AND MEMBERS OF THE OVERSIGHT COMMITTEE. An Oversight
Committee is hereby constituted in connection with the Liquidating Trust,
effective as of the Effective Date. The Oversight Committee shall be composed
of up to seven members, who shall initially be designated in a pleading filed
by the Proponent with the Court before the conclusion of the Confirmation
Hearing.
9.2 PROCEDURES AND RULES. The Oversight committee shall function under
the following rules:
(a) Any member of the Oversight Committee may act by proxy.
(b) The Oversight Committee shall prescribe its own rules of
procedures, subject, however, to the following requirements:
(i) All action by the Oversight Committee shall be upon the
affirmative vote of a majority of the members of the whole Oversight
Committee voting, either in person or by proxy;
(ii) Presence of a majority of the members, in person, by proxy
or by conference call, shall constitute a quorum;
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(iii) Authorization for or approval of any action may be evidenced
by the written consent of a majority of the Oversight Committee;
(iv) Meetings of the Oversight Committee may be conducted by
conference call; and
(v) The Oversight Committee shall not entitled to authorize or
take any action contrary to the Provisions of the Plan and/or the Confirmation
Order.
(c) Each member of the Oversight Committee will serve without
compensation, but each individual member of the Oversight Committee shall be
reimbursed out of the Operating Reserve for all reasonable out-of-pocket travel
and related expenses and disbursements incurred by it in the performance of its
duties as a member of the Oversight Committee; and
(d) Upon termination of the Liquidating Trust, the Oversight Committee
shall terminate.
9.3 AUTHORITY AND RESPONSIBILITY OF THE OVERSIGHT COMMITTEE. The
Oversight Committee shall have the authority to supervise and review the
activities and performance of the Liquidating Trustee, and shall have the
authority to remove and replace the Liquidating Trustee. It shall have such
further authority as maybe specifically granted or necessarily implied by the
Plan.
9.4 RETENTION OF PROFESSIONALS. The Oversight Committee shall have the
right to retain the services of professionals which are necessary to assist the
Oversight Committee in the performance of its duties or defend any claim
brought against such member arising out of its acts or omissions on the
Oversight Committee. The reasonable fees and expenses of such professionals
shall be paid by the Liquidating Trustee upon the submission of bills to the
Liquidating Trustee.
9.5 LIMITED LIABILITY. Neither the Oversight Committee nor any of its
members, designees, retained professionals or any duly designated agent or
representative of the Oversight Committee, shall be liable for the act, default
or misconduct of any other members of the Oversight Committee nor shall any
member be liable for anything other than such member's own acts as shall
constitute willful misconduct or gross negligence in the performance of its
duties. None of the Oversight Committee's members, designees, agents or
representatives or their respective employees, shall incur or be under any
liability or obligation by reason of any act done or omitted to be done, by any
member of the Oversight Committee, designee, agent or representative. The
Oversight Committee may, in connection with the performance of its functions,
and in its sole and absolute discretion, consult with counsel, accountants and
its agents, and shall not be liable for anything done or omitted or suffered to
be done in accordance with such advice or opinions. If the Oversight Committee
determines not to consult with counsel, accountants or its agents, such
determination shall not be deemed to impose any liability on the Oversight
Committee, or its member and/or its designees.
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<PAGE> 32
ARTICLE X
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
10.1 ASSUMPTION OR REJECTION. Pursuant to the authorization set forth in
Section 1123(b)(2) of the Bankruptcy Code, all executory contracts and
unexpired leases of any Debtor specifically identified on Exhibit D hereto
shall be assumed and assigned to either the Liquidating Trust or such third
party identified on the Exhibit as of the Effective Date. Those executory
contracts and unexpired leases of any Debtor not appearing on Exhibit D shall
be rejected in accordance with Section 365 of the Bankruptcy Code. The
Proponent reserves the right to amend Exhibit D at any time prior to the
Confirmation Date by adding or deleting executory contracts and unexpired
leases. No such amendment will be allowed after ten (10) days prior to the
Voting Deadline if it affects the procedural and substantive rights of the
other party to the executory contract or unexpired lease, (such as the right to
file objections to confirmation of this Plan or vote on this Plan) unless such
other party has specifically waived such rights, or the Court otherwise allows
the amendment.
The Uranium Concentrates Sales Agreement between PECO Energy Company
("PECO") and EFEX dated November 19, 1994, as amended February 21, 1995, hereby
is added to Exhibit D hereto and shall be assumed and assigned to Nukem, Inc.
or other assignee acceptable to PECO (the "Assignee"), subject to the following
conditions: (i) on or before the Effective Date, EFEX, PECO, and the Assignee
shall have mutually agreed to the terms of the assignment, which shall occur at
no cost to the EFEX Estate; and (ii) the Court shall find that this
modification does not require further disclosure or further solicitation with
respect to the Plan, or otherwise require Plan confirmation to be delayed
beyond August 8, 1997. In the event that either of the foregoing conditions
are not satisfied, this modification shall be void and the above-described
contract shall be rejected.
10.2 REJECTION CLAIMS. Any Claim arising from the rejection of an
executory contract or unexpired lease pursuant to the Plan must be filed thirty
(30) days after the Effective Date or the same shall be forever barred.
Nothing herein shall extend the deadlines to file a proof of claim for
rejection of any executory contract or unexpired lease occurring prior to the
Effective Date.
10.3 CURE PAYMENTS. The Debtors (or, after the Effective Date, the
Liquidating Trust) shall make the cure payments on assumed executory contracts
and unexpired leases on the Effective Date, or as soon thereafter as
practicable to the extent required by Section 365(b) of the Bankruptcy Code.
Any dispute as to the amount of any cure payment, or the Debtors' ability to
provide adequate assurance of future performance, or any other issue related to
the assumption and assignment described in Section 10.1 shall be resolved by
the Court.
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<PAGE> 33
ARTICLE XI
DISTRIBUTIONS
Each Holder of an Allowed Claim shall receive Distributions from the
Liquidating Trust or from any of the Affiliates controlled by the Liquidating
Trust as follows:
11.1 OPERATING, PROFESSIONAL FEE APPLICATION AND DISPUTED SENIOR CLAIMS
RESERVES.
(a) The Liquidating Trustee shall establish, on the Effective Date or
as soon thereafter as is practicable, out of the Effective Date Cash, the
following Reserves: (i) the Operating Reserve, (ii) the Professional Fee
Application Reserve, and (iii) the Disputed Senior Claims Reserve. The
Liquidating Trustee may also establish the Energy Fuels Subsidiary Creditor
Reserve pursuant to Section 8.7 of this Plan. Separate reserves do not need to
be established for each Trust Fund, provided, that the Operating Reserve shall
be established from the Cash of each Trust Fund based on the expenses and fees
which the Liquidating Trustee determines will be incurred on account of such
Trust Fund, and where such determination cannot be made, on such equitable
basis as is determined by the Liquidating Trustee in consultation with the
Oversight Committee.
(b) The Energy Fuels Subsidiary Creditor Reserve may be established
from the Assets in the Trust Funds of the Energy Fuels Debtors to pay all Energy
Fuels Subsidiary Creditor Claims that remain unsatisfied following the
liquidation, winding up and dissolution of the Energy Fuels Subsidiaries as
provided in the Dissolution Documents.
(c) The Liquidating Trustee shall draw on the Operating Reserve to
pay all costs and expenses of the Liquidating Trustee, including without
limitation (i) the Liquidating Trustee's own fees and expenses, (ii) the
expenses of each member of the Oversight Committee and (iii) the fees and
expenses of professionals retained by the Liquidating Trustee.
(d) To the extent that, after the Effective Date, the amount of the
Operating Reserve shall be less, in the Liquidating Trustee's good faith,
reasonable judgment, than the amount necessary to cover the costs and expenses
of the Liquidating Trust for the next three months, the Liquidating Trustee may
replenish the Operating Reserve from the Liquidation Proceeds, Avoidance Action
Proceeds or other sources approved by the Oversight Committee.
(e) The Liquidating Trustee shall make disbursements from the
Professional Fee Application Reserve to each professional or other Person or
Entity whose Professional Fee Claim is or becomes an Allowed Professional Fee
Claim, in the amount specified in the Final Order approving such Professional
Fee Claim, as soon as practicable after such order becomes a Final Order.
Payment of Professional Fee Claims in the Cases of these Debtors shall be
coordinated with payment of Professional Fee Claims of Energy Fuels as provided
in existing Court Orders and in the Confirmation Order of the Cases of those
Debtors.
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<PAGE> 34
(f) The Liquidating Trustee shall make disbursements from the Disputed
Senior Claims Reserve to each Holder of a Disputed Senior Claim whose Claim is
or becomes an Allowed Administrative Claim or Allowed Claim, as the case may
be, in the amount specified in the Final Order allowing such disputed Senior
Claim, as soon a practicable after such order becomes a Final Order.
(g) If any amount shall remain in either the Professional Fee
Application Reserve or the Disputed Senior Claims Reserve at a time when
the Liquidating Trustee believes in good faith that all Claims for which such
Reserve is established shall have been resolved by Final Order, the Liquidating
Trustee shall eliminate such Reserve and the amount thereof shall become
Available Cash to be distributed to the Holders of Allowed General Unsecured
Claims on the next Distribution Date.
11.2 RECORDS OF HOLDERS OF CLAIMS. The Liquidating Trustee shall
maintain a record of the names and addresses of all Holders of Allowed General
Unsecured Claims for purposes of making Distributions to them. As to any such
Creditor, the Liquidating Trustee may rely on the name and address set forth in
any Debtor's schedules filed with the Court, except to the extent a different
name and/or address shall be set forth in a proof of claim filed by such
Creditor in the Cases, and the Liquidating Trustee may rely on the names and
addresses in such schedules and/or proofs of claim as being true and correct
unless and until an appropriate change of address is filed with the Court. In
the event of the transfer of any Claim the Liquidating Trustee may rely on the
name and address included in the notice of transfer filed with the Court
pursuant to Rule 3001 of the Bankruptcy Rules.
11.3 RESERVE DISTRIBUTION AMOUNT FOR DISPUTED CLASS 4 CLAIMS.
(a) Prior to making the Initial Distributions to Holders of Allowed
Class 4 Claims, the Class 4 Reserve Distribution Amount shall be determined
for each Debtor by the Class 4 Reserve Order. Within 30 days after the
Effective Date, the Creditors' Committee and the Liquidating Trustee shall
apply to the Court, on notice to all Creditors, for a Final Order establishing
a Reserve Amount, which shall be the good faith estimate of the Creditors'
Committee and the Liquidating Trustee of the final total Allowed Amount of
Class 4 Claims for each Debtor plus a reasonable contingency amount. The Pro
Rata Distributions to Creditors for each Debtor shall be based on this Reserve
Amount until entry of an order revising the Reserve Amount or until all Class 4
Claims against the Debtor are resolved. The Liquidating Trustee shall then
retain in the Reserve with respect to the Class 4 Claims of each Debtor only
the Reserve Amount required by the Class 4 Reserve Order. All amounts not so
retained shall be distributed to Holders of Allowed Class 4 Claims as provided
below.
(b) To the extent that sufficient Assets are not available to make the
full Distribution required by the terms of this Plan in view of the then
appearing rights of the Holders of other Disputed Claims, the Liquidating
Trustee shall make such lesser distribution as shall then be ordered by the
Court. No Holder of any Disputed Claim shall have any recourse against the
Debtors, the Estates, the Liquidating Trust, the Liquidating Trustee, the
Proponents, or the Oversight Committee in the event the Class 4 Reserve Amount
is insufficient to pay an Allowed Claim.
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<PAGE> 35
(c) The Reserve for a Debtor shall be terminated when all Disputed
Class 4 Claims of such Debtor are resolved and Distributions shall then be
based on the actual total Allowed Amount of Class 4 Claims.
11.4 INITIAL DISTRIBUTION. On the Initial Distribution Date, the
Liquidating Trustee shall make the Distributions to Holders of Allowed Class 5
Claims. Holders of Class 5 Claims which are subsequently Allowed shall receive
their Distribution promptly after allowance. Subject to the provisions of the
first sentence of this Section, and provided additional Net Distributable
Proceeds are available, each Holder of an Allowed Class 4 Claim as of the
Initial Distribution Date will on such date be paid its Pro Rata share of the
Initial Distribution Amount from the Trust Fund from which such Claim is to be
paid; provided, that if a Holder of an Allowed General Unsecured Claim (or any
predecessor Holder of such Claim) retained a Preference Period Payment, the
amount thereof shall be credited against the Initial Distribution on account of
such Claim and, if necessary, against subsequent Distributions on account of
such Claim until (a) the ratio of (i) the aggregate amount of Distributions to
all Holders of Allowed Class 4 Claims against such Debtor on account of which
no Preference Period Payments were made to (ii) the aggregate amount of Allowed
Class 4 Claims against such Debtor on account of which no Preference Period
Payments were made shall be the same as (b) the ratio of such Preference Period
Payment(s) to the sum of the Allowed Class 4 Claims against such Debtor held by
the recipient of the Preference Period Payment. By way of example, if a Holder
of any Allowed Class 4 Claim of $9,000 received a Preference Period Payment of
$100, such Holder would not receive any Distribution from the Liquidating Trust
unless and until Holders of Allowed Class 4 Claims that did not receive a
Preference Period Payments had received Distributions equal to 1.1% (i.e.,
100/(9,000 + 100)) of their Claims.
11.5 SUBSEQUENT DISTRIBUTIONS.
(a) On each Distribution Date, all Holders of Allowed Class 4 Claims
which were not, on the immediately preceding Distribution Date, Allowed Claims,
shall receive a Distribution of sufficient Available Cash from the appropriate
Trust Fund to bring them into a Pro Rata position vis-a-vis all other Holders
of Allowed Class 4 Claims receiving distributions from the same Trust Fund.
(b) On each Distribution Date other than the Initial Distribution
Date, after giving effect to the Distributions to be made pursuant to the
preceding paragraph (a), the Liquidating Trustee shall distribute all
Available Cash Pro Rata to the Holders of Allowed General Unsecured Claims.
11.6 ROUNDING. Whenever any payment of a fraction of a cent would
otherwise be called for, the actual payment shall reflect a rounding of such
fraction down to the nearest whole cent.
11.7 NO CASH PAYMENTS OF $100 OR LESS ON ACCOUNT OF ALLOWED CLAIMS PRIOR
TO FINAL DISTRIBUTION DATE. If a Cash payment to be received by Holders of
Allowed Claims on any distribution (except the Final Distribution) would be
$100 or less in the aggregate, notwithstanding any contrary provision of this
Plan, no such payment will be made to such Holder, and such Cash,
-35-
<PAGE> 36
if applicable, shall be held in trust for such Holder until the Final
Distribution Date, at which time such Cash payment shall be made to the Holder.
11.8 UNCLAIMED DISTRIBUTIONS. Unclaimed Distributions shall be retained
by the Liquidating Trustee for the Holder of the Allowed Claim entitled thereto
and shall not be included in Available Cash. Any Holder who fails, for any
reason, to claim any Distribution to which such Holder may be entitled by the
earlier of (i) the Final Distribution Date or (ii) the date which is nine (9)
months after the Distribution Date for such Distribution shall forfeit all
rights to such Distribution. Upon any such forfeiture, the unclaimed
Distributions shall become part of the Available Cash to be distributed by the
Liquidating Trust.
11.9 WITHHOLDING TAXES. The Liquidating Trustee shall be entitled to
deduct any federal or state withholding taxes from any payments made with
respect to Allowed Claims, as appropriate, and shall otherwise comply with
Section 346 of the Bankruptcy Code.
ARTICLE XII
PROCEDURES FOR RESOLVING DISPUTED CLAIMS
The following procedures shall be followed in resolving Disputed Claims:
12.1 FILING OBJECTIONS TO CLAIMS. After the Effective Date, objections
to Claims shall be made, and objections to Claims made previous thereto shall
be pursued, only by the Liquidating Trustee, in consultation with the Oversight
Committee. Any objections made by the Liquidating Trustee shall be served and
filed not later than 180 days after the Effective Date; provided, that such
period may be extended by order of the Court for good cause shown.
12.2 SETTLEMENT OF CLAIMS OBJECTIONS AFTER EFFECTIVE DATE. After the
Effective Date the Liquidating Trustee, with the approval of the Oversight
Committee, may settle any Class 4 Claim where the proposed Allowed Amount is to
be less than $100,000 without Notice and a Hearing and without an order of the
Court. All other settlements shall be subject to Notice and a Hearing and a
Final Order of the Court approving the settlement. Ten days notice (plus three
days if service is made by first class mail) shall be adequate for any Claims
settlement.
12.3 CLAIMS OF CERTAIN AFFILIATES DISALLOWED. All Claims against
Debtors filed by Affiliates directly or indirectly solely owned by Debtors
and/or family members of Benton (as defined in the Benton Family Settlement
Agreement and referred to hereinafter as the "Benton Family Members") and which
have no Creditors, directly or indirectly (by reason of ownership or Claims by
other Affiliates) other than Debtors, Benton Family Members, or Affiliates
solely owned by Debtors and/or Benton Family Members shall be deemed disallowed
by the Confirmation Order. If an Affiliate that holds Claims against Debtors
has owners or Creditors, directly or indirectly (by reason of ownership or
Claims by other Affiliates) other than the Debtors, wholly-owned Affiliates, or
Benton Family Members, the portions of such Claim properly attributable to such
third-party
-36-
<PAGE> 37
Creditors or owners shall be Allowed and held thereafter solely for the
benefit of such third-party Creditors or owners and the remainder disallowed.
ARTICLE XIII
CONDITIONS TO THE EFFECTIVENESS OF THIS PLAN
The following conditions must occur and be satisfied for this Plan to
become effective:
13.1 ENTRY OF CONFIRMATION ORDER. The Confirmation Order shall have been
signed by the Court and duly entered on the docket for the Cases by the Clerk
of the Court in form and substance acceptable to the Proponents.
13.2 NECESSARY AGREEMENTS. The Liquidating Trustee and the Debtors,
acting, if necessary, through attorneys-in-fact as provided in Section 7.9
hereof shall have entered into the Liquidating Trust Agreement.
13.3 CONSENTS OF THIRD PARTIES. All consents of any third parties whose
consent is required to effectuate any transactions contemplated herein, shall
have been obtained.
13.4 FINAL ORDER. The Confirmation Order shall be a Final Order.
13.5 IRS CLAIMS. The Court shall have entered Orders approving the
settlement with the IRS by the NTC and Benton Estates, allowing the IRS Claim
against such Estates in an amount no greater than $30 million.
13.6 CLAIMS SETTLEMENT MOTION. The Claims Settlement Motion and Claims
Settlements included therein are approved by the Court.
13.7 WAIVER OF CONDITIONS. The Proponent, in its sole discretion, may
waive any of the foregoing conditions, such waiver to be effective only if in
writing and filed with the Court.
ARTICLE XIV
RETENTION AND SCOPE OF JURISDICTION OF THE COURT
14.1 RETENTION OF JURISDICTION. Subsequent to the Effective Date, the
Court shall have or retain jurisdiction for the following purposes:
(a) To adjudicate objections concerning the allowance, priority or
classification of Claims and any subordination thereof, and to establish a date
or dates by which objections to Claims must be filed;
-37-
<PAGE> 38
(b) To liquidate the amount of any disputed, contingent or unliquidated
Claim, to estimate the amount of any disputed, contingent or unliquidated
Claim, and to establish the amount of any reserve required to be withheld from
any distribution under the Plan on account of any disputed, contingent or
unliquidated Claim;
(c) To resolve all matters related to the rejection, and assumption
and/or assignment of any executory contract or unexpired lease of the Debtors;
(d) To hear and rule upon all Avoidance Actions commenced and/or
pursued by the Liquidating Trustee;
(e) To hear and rule upon all Fee Applications;
(f) To remedy any defect or omission or reconcile any inconsistency
in the Plan, as may be necessary to carry out the intent and purpose of the
Plan;
(g) To construe or interpret any provisions in this Plan and to issue
such orders as may be necessary for the implementation, execution and
consummation of the Plan, to the extent authorized by the Bankruptcy Code;
(h) To adjudicate controversies arising out of the administration of
the Estate or the implementation of this Plan;
(i) To make such determinations and enter such orders as may be
necessary to effectuate all the terms and conditions of the Plan, including the
distribution of funds from the Estates, the payment of Claims, and the transfer
of Assets from the Estate;
(j) To determine any suit or proceeding brought by the Debtors and/or
the Liquidating Trust to recover property under Section 542, 543 or 553 of the
Bankruptcy Code;
(k) To hear and determine any tax disputes concerning the Debtors or
the Liquidating Trust and to declare any tax effects under the Plan, provided
nothing herein shall be deemed to expand the Court's jurisdiction over tax
matters;
(l) To extend the life of the Liquidating Trust as provided in
Section 8.5 hereof;
(m) To determine such other matters as may be provided for in the
Plan or the Confirmation Order or as may be authorized by or under the
provisions of the Bankruptcy Code;
(n) To determine any controversies, actions or disputes that may arise
under the provisions of this Plan or the Purchase and Sale Agreement, or the
rights, duties or obligations of any Person under the provisions of this Plan
or the Purchase and Sale Agreement.
-38-
<PAGE> 39
Purchaser shall be expressly authorized to bring any such actions before the
Bankruptcy Court for resolution; and
(o) To enter a Final Decree.
ARTICLE XV
CRAM DOWN
15.1 PROPONENT WILL REQUEST. The Proponent will request that the Court
confirm the Plan pursuant to Section 1129(b) of the Bankruptcy Code as fair
and equitable as to any Class which rejects or is deemed to reject the Plan.
ARTICLE XVI
MISCELLANEOUS PROVISIONS
16.1 MODIFICATION OF THE PLAN. The Proponent reserves the right in
accordance with Section 1127 of the Bankruptcy Code to modify this Plan at any
time before the Confirmation Date. Subject to the requirements of Section
1127(b) of the Bankruptcy Code, the Liquidating Trustee, with the consent of
the Oversight Committee, may seek to modify this Plan after the Confirmation
Date.
16.2 CREDITORS' COMMITTEE AND ITS PROFESSIONALS. The Creditors'
Committee shall terminate on the Effective Date, although its members will be
entitled to reimbursement of expenses incurred through the Effective Date. The
retention of professionals by the Creditors' Committee shall terminate on the
Effective Date, and such professionals shall be entitled to compensation and
reimbursement of expenses for services performed and expenses incurred through
the Effective Date. Such professionals may be engaged on and after the
Effective Date by the Liquidating Trustee and shall be entitled to payment from
the Liquidating Trust for compensation earned and expenses incurred during such
engagement without the filing of further fee applications with the Court or
Court order.
16.3 DEBTORS' PROFESSIONALS. The retention of the Debtors'
professionals shall terminate on the Effective Date, and such professionals
shall be entitled to compensation and reimbursement of expenses for services
performed and expenses incurred through the Effective Date. However, such
professionals may be retained on and after the Effective Date by the
Liquidating Trustee and shall be entitled to payment from the Liquidating Trust
for compensation earned and expenses incurred during such subsequent retention,
without the filing of further fee applications with the Court or Court order.
-39-
<PAGE> 40
16.4 ALLOCATION OF DISTRIBUTIONS. All Distribution on Allowed Claims
shall be deemed applied to the principal portion of such Claim until such
principal is fully repaid, and thereafter shall be deemed to be applied to
interest.
16.5 ALTER EGO CLAIMS. All Claims against any Debtor founded on a
theory of alter-ego, piercing the corporate veil, substantive consolidation or
any similar theory are deemed denied.
16.6 SUCCESSORS AND ASSIGNS. The rights, duties and obligations of any
Person named or referred to in this Plan shall be binding upon, and shall inure
to the benefit of, the successors and assigns of such Person.
16.7 GENDER. The masculine shall include the feminine.
16.8 TAX PROVISION. The making, delivery or recording of a deed or
other instrument of transfer pursuant to any sale of Assets, either by the
Estates to the Liquidating Trust or by the Liquidating Trust to any third
party, shall constitute the making or delivery of an instrument of transfer
under a confirmed Plan within the meaning of 11 U.S.C. Section 1146(c), and
such making delivery of an instrument of transfer under a confirmed Plan within
the meaning of U.S.C. Section 1146(c), and such making or delivery shall not
be taxed either to the Liquidating Trust as seller or to the purchaser under
any law imposing a stamp tax or similar tax. For purposes of Section 1398(i)
of the Internal Revenue Code, each Estate shall be deemed to terminate on the
close of business on the Final Tax Day, but in no event, in the case of the
Benton Estate, on the later of (i) the Effective Date, or (ii) the date of
disposition of the Baseball Interests.
16.9 APPLICABLE LAW. Except to the extent that the Bankruptcy Code or
the Bankruptcy Rules are applicable, the rights and obligations arising under
this Plan shall be governed by the laws of the State of Colorado.
16.10 PREPARATION OF ESTATES' RETURNS.
(a) The Liquidating Trustee shall be responsible for all tax
matters of the Estates, including, but not limited to, the filing of all
tax returns and other filings with governmental authorities on behalf of the
Estates for time periods ending on or before the Final Tax Day, the filing of
determination requests under Section 505(b) of the Bankruptcy Code, and
responding to any tax audits of the Estates. The Debtors and Benton
individually shall preserve and deliver on the Effective Date to the
Liquidating Trustee all books and records necessary for the preparation of such
returns and filings and shall cooperate with the Liquidating Trustee in the
preparation of such returns and filings.
(b) With respect to income tax returns of the Estates for the Final
Tax Year, on the Final Tax Day the following events shall be deemed to occur
in the following order:
(1) the income tax obligation of the Estate of Benton for the
Final Tax Year shall be determined;
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<PAGE> 41
(2) any remaining tax attributes of the Estate of Benton shall
be reduced pursuant to Section 108(b) of the Tax Code; and
(3) the Benton Estate shall terminate for the purpose of
Section 1398(i) of the Tax Code and be closed or dismissed for the purposes of
Section 346(i)(2) of the Bankruptcy Code, and Benton shall succeed to and take
into account the tax attributes of the Estate of Benton as provided in those
sections.
16.11 HEADINGS. The headings of the Articles and the paragraphs of this
Plan have been used for convenience only and shall not limit or otherwise
affect the meaning thereof.
16.12 REVOCATION OF PLAN. The Proponent reserves the right,
unilaterally and unconditionally, to revoke and/or withdraw the Plan at any
time prior to entry of the Confirmation Order, and upon such revocation and/or
withdrawal the Plan shall be deemed null and void and of no force and effect.
16.13 SUPREMACY CLAUSE. In the event of any conflict between the Claims
Settlement Addendum or the Disclosure Statement and the terms of the Plan or of
a Claims Settlement Agreement, the terms of the Plan or the Claims Settlement
Agreement, as the case may be, shall control. Further, in the event of any
conflict between the terms of the Plan and a Claims Settlement Agreement, the
terms of such Claims Settlement Agreement shall control.
DATED this 18th day of August, 1997.
Respectfully Submitted,
The Official Creditors' Committee of
CSI Enterprises, Inc., and Jointly
Administered Debtor
By: UBS, Inc., Committee Chair
By: /s/
---------------------------------
G. Christian Ullrich
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<PAGE> 42
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
Carl A. Eklund
James L. Huemoeller
633 17th Street, Suite 2000
Denver, Colorado 80202
(303) 291-2600
By: /s/
------------------------------
Oren L. Benton
Craig A. Christensen
Harrie F. Lewis
Lindquist, Vennum & Christensen
600 17th Street, Suite 2125
Denver, Colorado 80202-5401
(303) 573-5900
-42-
<PAGE> 43
EXHIBIT "B"
-----------
CLAIMS SETTLEMENT AGREEMENTS
<TABLE>
<S> <C>
1. City of Anaheim
2. British Nuclear Fuels, plc
3. China Nuclear Energy Industry Corporation
4. Consumers Power Company
5. Intertech Corporation
6. Nuclear Electric, Ltd. (as supplemented and amended)
7. City of Riverside
8. Siemens Power Company
9 Southern California Edison
10. Kernkraftwerk Leibstadt
11. Kernkraftwerk Gosgendaeniken
12. Nordostschweizerischekraftwerke
13. Techsnabexport
14. Union Bank of Switzerland
15. Union Electric Company
16. Westinghouse Electric Corporation
17. Washington Public Power Supply System
18. Nebraska Public Power District
19. Adams Family
20. Palabora Mining Co.
21. James E. Lewis
</TABLE>
43
<PAGE> 44
EXHIBIT "C"
-----------
SUBORDINATED CLAIMS
($000's)
<TABLE>
<S> <C> <C>
BENTON ESTATE:
- --------------
Techsnabexport $ 83,333
China Nuclear Energy Industry Corp. 50,151
British Nuclear Fuels plc 24,711
Nuclear Electric Ltd. 17,239
Washington Public Power Supply System 7,049
KKG 1,600
KKL 1,600
NOK 1,600
Palabora Mining Corp. 785
Other TBD
NTC ESTATE:
- -----------
NEAG $220,000
</TABLE>
44
<PAGE> 45
EXHIBIT "D"
EXECUTORY CONTRACTS TO BE ASSUMED
NTC ESTATE:
- -----------
1. Consultancy Agreement dated October 12, 1989 between NUEXCO Trading Corp.
And Queensland Mines, Ltd. ("QML") and the two Continuing Sales Contract
Consultancy Agreement dated April 11, 1990 between NTC and QML.
2. Uranium Concentrates Sales Agreement dated October 7, 1991, as amended,
between NUEXCO Trading Corp. And Duke Power Company.
3. Storage Agreement dated April 8, 1993, as amended, between NUEXCO Trading
Corp. And Siemens Power Corporation ("SPC") - Nuclear Division for Storage
(1)
of Enriched UF
(6)
CSI ESTATE:
- -----------
None
ENERGY FUELS ESTATES:
- ---------------------
(2)
See Attached.
BENTON ESTATE:
- --------------
1. Amended Restated Agreement of Limited Partnership of Colorado Baseball
Partnership 1993, Ltd. Dated October 29, 1992.
2. Shareholders Agreement between Oren L. Benton and Hullas Del Coto Cortes SA
("HCC") effective June 1, 1994.
3. Shareholder Agreement between Oren L. Benton and Sart Securities, Ltd.
- --------------------
(1)The assumption of this Agreement is subject, in all respects, to the
terms of the Proposed Settlement Agreement with SPC.
(2)The assumption of the listed contracts has been approved pursuant to the
Sale Order (as defined in the Plan) contingent upon the closing of the
transactions contemplated in the Sale Order.
45
<PAGE> 46
EXHIBIT "D"
EXECUTORY CONTRACTS TO BE ASSUMED
ENERGY FUELS
<TABLE>
<S> <C>
1. URANIUM CONCENTRATES SALES AGREEMENT - June 24, 1991 Between Chubu
Electric Power Company, Inc. And Energy Fuels Exploration Company
2. AGREEMENT FOR THE SALE AND PURCHASE OF URANIUM CONCENTRATES - August 19,
1991 Between Kyushu Electric Power Company, Inc. And Energy Fuels
Exploration Company
3. AGENCY AGREEMENT - June 15, 1989 Between Sumitomo Corporation And Energy
Fuels Exploration Company
4. BYPRODUCT DISPOSAL AGREEMENT - September 1, 1994
Between Crow Butte Resources, Inc. and Energy Fuels Nuclear, Inc.
5. BYPRODUCT DISPOSAL AGREEMENT - December 20, 1994 Between Uranium
Resources, Inc. and Energy Fuels Nuclear, Inc.
6. BYPRODUCT DISPOSAL AGREEMENT - September 1, 1995
Between Intercontinental Energy Corporation and Energy Fuels Nuclear, Inc.
7. AMENDED AND RESTATED WATER PURCHASE AGREEMENT - November 1, 1994
The San Juan County Water Conservancy District, Blanding, San Juan County,
State of Utah and Energy Fuels Nuclear, Inc.
8. URANIUM SUPPLIER'S AGREEMENT - September 1, 1995
Between Energy Fuels Nuclear, Inc. and Converdyn
9. AGREEMENT FOR URANIUM RECOVERY - September 1, 1995 Between Energy Fuels
Nuclear, Inc. And Converdyn (on behalf of Allied Signal, Inc.)
11. URANIUM CONCENTRATES SALES AGREEMENT - August 5, 1996 Between NUKEM, Inc.
and Energy Fuels Exploration Company
12. JOINT VENTURE AGREEMENT - September 12, 1996
Between CTI, A Corporation And Energy Fuels Nuclear, Inc.
13. RENTAL/LEASE AGREEMENT - July 30, 1995
Between Energy Fuels Nuclear, Inc. and Cobre Mining Company
14. SALES AGREEMENT - April 25, 1989
Between Cameco Corporation and Energy Fuels Exploration Company
15. ARGUNEXCO JOINT VENTURE - May 12, 1992
Between Energy Fuels Exploration Company and Priargunsky Gorno-Himichesky
Kombinat and Techsnabexport
</TABLE>
46
<PAGE> 47
EXHIBIT "D"
EXECUTORY CONTRACTS TO BE ASSUMED
ENERGY FUELS
<TABLE>
<S> <C>
16. JOINT VENTURE AGREEMENT - November 30, 1976
Between Union Carbide Corporation and Hecis Mining Company
Processing Agreement - October 22, 1980
Amended October 22, 1980 and February 3, 1984
17. FOUNDING AGREEMENT - January 15, 1994
Mongolian-Russian-American Joint Venture (Gurvan Salhan, BBHK)
Energy Fuels Exploration Company
18. CHARTER AGREEMENT - January 15, 1994
Gurvan Saihan Joint Venture and Energy Fuels Exploration Company
19. MINERAL AGREEMENT - January 15, 1994
Energy Fuels Exploration Company and Ministry of Geology and Mineral
Resources of Mongolia, and the State-Owned Russian Geological Concern
Geologorazvedka
20. MINING JOINT VENTURE AGREEMENT - January 1, 1991
Pathfinder Mines Corporation and Arizona Strip Partners, L.P.
21. ACQUISITION AGREEMENT by and among Umetco Minerals Corporation,
Hanksville-Blanding Limited Partnership, Energy Fuels, Ltd. and Energy
Fuels Nuclear, Inc., dated May 17, 1994.
22. All Permits and License Agreements held by Energy Fuels Nuclear, Inc.,
Energy Fuels, Ltd., and Energy Fuels Exploration Company on their own
account or on behalf of Hanksville-Blanding Limited Partnership, Arizona
Strip Partners, L.P., or Cheyenne River Partners, L.P.
23. All Mineral Leases and Surface Agreements held by Energy Fuels Nuclear,
Inc., Energy Fuels, Ltd., and Energy Fuels Exploration Company on their
own account or on behalf of Hanksville-Blanding Limited Partnership,
Arizona Strip Partners, L.P. or Cheyenne River Partners, L.P. including
but not limited to Leases and Agreements held by the following:
</TABLE>
<TABLE>
<S> <C>
ARIZONA STATE LAND DEPARTMENT ARNOLD ROYALTY
LOIS J BAKEWELL MAXWELL AND CS BENTLEY
BRIDLE BIT RANCH COMPANY ESTATE OF HD BUTT
NORMA CRAFT CANNON TRUST DENNIS P AND MARGARET PAULINE CASEY
KATHRYN S AND MICHAEL J CLARKE CORALE R CLARY AND GERALD W CLARY
CO BAR LIVESTOCK COMPANY MRS EDNA H COATES
COMMERCIAL SECURITY BANK BETTY I COX AND HAROLD COX
LOUISE N BRADFORD COX MRS ERMA CRAWFORD
HARLEY E AND NORMA D CRESSLER VERNON CROUSE TRUST BETTY BALDOZNER
TRUSTEE
MRS LOIS E DARROW ALEASE C DAWSON
ESTATE OF WS DAWSON DECEASED MR LYNN DAY
MRS FLORA DORAN MRS DORIS V DOUDY
DOVE CREEK STATE BANK JAMES E AND DORA JUNE DRAKE
MR AND MRS HARRY R ELSTON DR AND MRS JAMES H ELSTON
DR AND MRS RICHARD E ELSTON MR HILTON B EVANS
FIRST SECURITY BANK OF MOAB FIRST SECURITY BANK OF UTAH
FIRST UNION NAT'L BANK OF NC FLOYD C RENO & SONS INC
MARY ALICE PORTER LAURENCE AND JANN W GALLOWAY
MR ACE GOODMAN ESTATE OF FERN SEARS GOODMAN
MR WILLARD G GOODMAN MRS BERNICE GROVES
URBAN AND BERNICE GROVES MR RALPH J HAFEN
HANCOCK ENTERPRISES HERMAN P AND MARY LOU HECK
MR GEORGE W ICKE MR PHILIP K ICKE
DOROTHA AND STANLEY ICKES TRUSTS JOHN T JONES
MARION A JONES MR AND MRS ROBERT EASTNER
</TABLE>
47
<PAGE> 48
EXHIBIT "D"
EXECUTORY CONTRACTS TO BE ASSUMED
ENERGY FUELS
<TABLE>
<S> <C>
MARIAN C KELLER KEY BANK OF UTAH - LOGAN BRANCH
KEY BANK OF UTAH KEY BANK OF WASHINGTON
ROBERT J AND MARY R LANGSTON VERL AND CHRISTINE M LANGSTON
AUGUST G AND LEWELLA LAUR TRUSTS RICHARD W LEAVITT TRUST
BILLY H MILLS AND VICKI MILLS DORIS I MILLS AND CLARKE K MILLS
JODY G MILLS AND CORETTA MILLS LARRY C MILLS AND PHYLLIS L MILLS
TOMMY M MILLS AND BONNE MILLS MINERALS EXPLORATION COMPANY
JAMES G AND MARY ALICE MURRAY JOHN W AND ARMENA WHEELER NEWMAN
FLORA H NELSON J FLETCHER NELSON
THORA BARTON NORTON PETERSON AND SON INC
TIMOTHY R AND ALTA POGUE JOHN A PUTMAN
REDD RANCHES REDD ROYALTIES
JUSTIN JOE REMO SAN JUAN COUNTY ATTORNEY
SAN JUAN COUNTY UTAH ROBERT J SAYRE
ROBERT SCHULER STADEN FAMILY MINERAL TRUST
DONALD AND PAT SPENCER MRS ESTHER STAATS
SUNDANCE OIL COMPANY SUPERIOR URANIUM CORP
JUNE M THELEN-STANGLER ROBERT FOARD TOWNSEND
TESTAMENTARY TRUST
UTAH DEPART OF NATURAL RESOURCES UTAH DIVISION OF SOVEREIGN LANDS &
FORESTRY
UTAH TRUST LANDS ADMINISTRATION WESTERN GAS RESOURCES INC
BLANCHE WILLARD REV TRUST MRS BLANCHE WILLARD
WYOMING STATE LAND & FARM LOAN OFFICE MR JOHN YONGUE
</TABLE>
EQUIPMENT LEASE/MAINTENANCE AGREEMENTS
--------------------------------------
BLANDING OFFICE
- ---------------
1. Perkin-Elmer Corporation
Department 5-9364
Los Angeles, CA 90088
AA Machine Lease Agreement
Between Energy Fuels Nuclear & Parker-Elmer
Effective 10/01/96 - 01/01/97
2. Xerox Corporation
P.O. Box 7405
Pasedena, CA 91109-7405
Maintenance Agreement
Between Energy Fuels Nuclear & Xerox Corporation
Effective 5/2/96 - 5/2/97
3. Pitney Bowes, Inc.
P.O. Box 85390
Louisville, KY 40285-5390
Postage Meter Rental
Between Energy Fuels Nuclear & Pitney Bowes
Effective 10/16/96 - 01/16/97
4. Parker's Copier Service
802 South Broadway
Cortez, CO 81321
Copier Rental Agreement
Between Energy Fuels Nuclear & Parker's Copier Service Effective
10/1/96 - 01/01/97
48
<PAGE> 49
EXHIBIT "D"
EXECUTORY CONTRACTS TO BE ASSUMED
ENERGY FUELS
DENVER OFFICE
- -------------
1. Xerox Corporation
P.O. Box 7405
Pasadena, CA 91109-7405
Copier Maintenance Agreement
Between Energy Fuels Nuclear & Xerox Corporation
Effective 10/1/96 - 09/30/97
2. Pitney Bowes, Inc.
P.O. Box 85390
Louisville, KY 40285-5390
Postage Meter Rental
Between Energy Fuels Nuclear & Pitney Bowes
Effective 09/01/96 - 12/01/96
3. Pitney Bowes
P.O. Box 85210
Louisville, KY 40285-5210
Fax Machine Rental/Maintenance
Between Energy Fuels Nuclear & Pitney Bowes
Effective 9/01/96 - 12/01/96
FREDONIA OFFICE
- ---------------
1. Omnifax
P.O. Box 80709
Austin, TX 80709
Fax Machine Rental/Maintenance
Between Energy Fuels Nuclear & Omnifax
Effective 08/01/96 - 11/01/96
2. Xerox Corporation
P.O. Box 7405
Pasadena, CA 91109-7405
Copier Maintenance
Between Energy Fuels Nuclear & Xerox Corporation
Effective 10/01/96 - 01/01/97
DOVE CREEK OFFICE
- -----------------
1. Xerox Corporation
P.O. Box 890990
Dallas, TX 75389-0990
Copier Maintenance
Between Energy Fuels Nuclear & Xerox Corporation
Effective 10/01/96 - 09/30/97
49
<PAGE> 50
EXHIBIT "D"
EXECUTORY CONTRACTS TO BE ASSUMED
ENERGY FUELS
RIGHTS OF WAY AND EASEMENTS
---------------------------
A. Kaibab Paiute Road Use Permit No. 561722 issued February 18, 1992, by the
Kaibab Paiute Indian Tribe to Energy Fuels Nuclear, Inc. and associated
Scholarship Agreement dated February 18, 1992, by Energy Fuels Nuclear,
Inc. for the benefit of the Kaibab Paiute Indian Tribe.
B. Associated Bureau of Land Management Right-Of-Way: COC 48613 -
Communications Site to the Sunday Mine within Township 44 North, Range 18
West, N.M.P.M. dated November 20, 1989, for communications site, access
road, and power line.
C. Right of Way No. 1175 dated May 2, 1969, from the State of Utah, assigned
to Energy Fuels, Ltd., consisting of a 12.5KV distribution line through
portions of Section 32, Township 37 South, Range 22 East; Section 36,
Township 37 South, Range 21 East; and Section 2, Township 38 South, Range
21 East, for the White Mesa Mill.
D. Temporary Easement granted to the Utah Department of Transportation dated
August 20, 1996 covering a total of 1600 square feet of the White Mesa
Mill property for access purposes incident to the construction of an
access road to the existing highway State Route 191 known as Project NO.
0191.
E. Kanab North Powerline, Permit No. A-19389.
F. Right-of-Way No. 18-92755 issued by the Arizona State Land Department
effective November 5, 1992 to Energy Fuels Nuclear, Inc., for overhead
19.9/34.5 electric distribution line to the Hack Canyon Mines.
G. Letter Agreement dated December 12, 1978, between Buttes Resources,
assigned to Central Resources, Inc., grantor, and Energy Fuels, Ltd.,
assignee/grantee, granting the right to use an access road at the Reno
Creek Project site beginning at point on Wyoming State Highway 387 and
continuing to the 1-21 Anderman wellsite in a portion of Section 21,
Township 43 North, Range 73 West, 6th P.M.
H. Conveyance of easement dated April 30, 1987, from Energy Fuels, Ltd.,
Hanksville-Blanding Limited Partnership, and Union Carbide Corporation,
grantors, to The Blanding Irrigation Company, granting an easement for the
construction, operation and maintenance of a water distribution system
in Section 22, Township 37 South, Range 22 East, San Juan County, Utah.
50
<PAGE> 51
EXHIBIT "D"
EXECUTORY CONTRACTS TO BE ASSUMED
ENERGY FUELS
GRAZING LEASES
--------------
A. Grazing Lease dated July 25, 1978, between Energy Fuels, Ltd., Lessor, and
Alma U. Jones and Marion A. Jones, Lessee, covering a portion of the
SE1/4 of Section 33, Township 37 South, Range 22 East.
B. Grazing Lease dated December 16, 1976, between Energy Fuels, Ltd., Lessor,
and J. Merlin Grover and Clark M. Grover, Lessees, covering a portion of
Section 33, Township 37 South, Range 22 East.
C. Grazing Lease dated November 15, 1977, between Energy Fuels, Ltd., Lessor,
and Jess M. Grover and J. Merlin Grover, Lessees, covering portions of
Sections 32 and 33, Township 37 South, Range 22 East.
D. Grazing Lease dated December 16, 1976, between Energy Fuels, Ltd., Lessor,
and Kloyd Perkins, Lessee, covering portions of Sections 28 and 33,
Township 37 South, Range 22 East.
E. Grazing Lease dated November 4, 1976, between Energy Fuels, Ltd., Lessor,
and Jed Lyman, Candice Lyman, Melvin McKay Halliday, Linda Halliday, Keith
Ivins and DeAnn R. Ivins, Lessees, covering portions of Sections 21, 22,
27, 28, Township 37 South, Range 22 East.
OFFICE AND STORAGE LEASES
-------------------------
A. Lease of Dove Creek buildings. Lease Agreement dated June 15, 1994,
between High Country Elevators, Inc., Lessor, and Energy Fuels Nuclear,
Inc., Lessee.
B. Lease of Gillette Office. Commercial Lease Agreement dated July 19, 1994,
between Southside Business Park, Inc., Lessor, and Energy Fuels Nuclear,
Inc., Lessee.
C. Lease of Grand Junction Office. Lease Agreement dated June 5, 1995,
between Property Services of Grand Junction, Inc., Agent for Owner,
Lessor, and Energy Fuels Nuclear, Inc., Lessee.
D. Letter of Agreement dated December 13, 1985, between Rocky Mountain
Records Management, lessor, and Energy Fuels, lessee, leasing storage
space for "closed" or "inactive" files and services to inventory and
manage such files.
51
<PAGE> 52
EXHIBIT "D"
EXECUTORY CONTRACTS TO BE ASSUMED
ENERGY FUELS
INSURANCE COVERAGE
------------------
1. General Liability, Property and Automobile Insurance:
Crum & Forster Insurance
Denver Regional Office
P.O. Box 5090
Denver, CO 80217-5090
2. Colorado Workmans Compensation Coverage:
Colorado Compensation Insurance Authority
P.O. Box 241306
Denver, CO 80224-9306
3. Utah Workmans Compensation Coverage:
Workers Compensation Fund of Utah
P.O. Box 57929
Salt Lake City, UT 84157-0929
4. Arizona Workmans Compensation Coverage:
NCCI/AZ
P.O. Box 76428
Chicago, IL 60675-4828
5. Wyoming Workmans Compensation Coverage:
Division of Worker's Safety and Compensation
Herschier Building
122 West 25th Street
Cheyenne, WY 82002
RECLAMATION BONDS
-----------------
SURETY BROKERS/AGENTS:
- ---------------------
VanAmerican
Attn: James Godfrey
167 E. Main St., Suite 210
Lexington, KY 40507
Lockton Companies
4500 Cherry Creek Dr. South
P.O. Box 221300
Denver, CO 80222-0099
Crum and Forster Commercial Insurance
Denver Regional Office
P.O. Box 5090
Denver, CO 80217-5090
52
<PAGE> 53
EXHIBIT "D"
EXECUTORY CONTRACTS TO BE ASSUMED
ENERGY FUELS
SURETY COMPANIES:
- -----------------
The North River Insurance Company
c/o Crum and Forster Commercial Insurance
Attn: Jim Hamlet, Bond Department
7500 College Blvd., Suite 800
Overland Park, KS 66210
The North River Insurance Company
Home Office
P.O. Box 416
Parsippani, NJ 07054-0416
United States Fire Insurance Company
c/o Crum and Forster Commercial Insurance
Attn: Jim Hamlet, Bond Department
7500 College Blvd., Suite 800
Overland Park, KS 66210
United States Fire Insurance Company
Home Office
Six Sylvan Way
Parsippani, NJ 07054
National Union Fire Insurance
Company of Pittsburg
c/o VanAmerican
Attn: James Godfrey
167 E. Main St. Ste. 210
Lexington, KY 40507
National Union Fire Insurance
Company of Pittsburg
Home Office
70 Pine St.
New York, NY 10270
53
<PAGE> 54
EXHIBIT "E"
-----------
BENTON RETAINED ASSETS
1. All Shares of Professional Bank.
2. One Third of the value of the Baseball Interests.
3. 2,069,130 shares of Ramtron International subject to the following liens:
a. The lien of Union Bank of Switzerland in 703,316 shares.
b. The lien of Westinghouse to secure the remaining
amount owned on its Allowed Secured Claim.
4. All property relating to ranching which is returned to the Estates
pursuant to the Benton Agreement included in the Claims Settlement
Motion, except that property commonly referred to as the "Griffith
Property" acquired in late 1993 which shall be transferred to the NTC
Estate.
5. All property returned by Beverly Benton and the Benton Children pursuant
to the Benton Agreement included in the Claims Settlement Motion.
6. All interests in Pinemeadows Finance, Inc. and Pinemeadows Ltd.
54
<PAGE> 55
INDEX OF EXHIBITS
<TABLE>
<CAPTION>
Exhibit Title
- ------- -----
<S> <C>
Exhibit A Liquidating Trust Agreement
Exhibit B List of Claims Settlement Agreements
Exhibit C Subordinated Claims
Exhibit D Executory Contracts and Unexpired Leases to be Assumed and
Assigned
Exhibit E Assets to be Retained by Benton Estate
</TABLE>
-55-
<PAGE> 1
Exhibit 99.3
NTC LIQUIDATING TRUST AGREEMENT
This NTC Liquidating Trust Agreement ("Trust Agreement") is entered into
as of August 29, 1997, between Nuexco Trading Corporation (the "Debtor") and
David J. Beckman, ("Liquidating Trustee").
RECITALS
a. On February 23, 1995, the Debtor filed a petition for reorganization
under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court
for the District of Colorado, which case is jointly administered under Case No.
95-11642-CEM.
b. On February 21, 1997, the Official Creditors' Committee of CSI
Enterprises, Inc. and Jointly-Administered Debtor (the "Committee") as
Proponent and Oren L. Benton, as Co-Proponent, filed a Modified First Amended
Plan of Reorganization for the Jointly Administered Debtor (the "Plan"). The
Bankruptcy Court entered its Confirmation Order confirming the Plan on August
18, 1997.
c. The Plan provides for the creation of a Liquidating Trust to hold the
Debtor's Assets (except as may otherwise be provided under the Plan), in trust
for the benefit of all Holders of Allowed Claims pursuant to the terms of the
Plan and this Trust Agreement. This Trust Agreement is executed in order to
establish the Liquidating Trust and to facilitate implementation of the Plan.
ARTICLE I.
DEFINITIONS
1.1 TERMS DEFINED HEREIN. As used in this Trust Agreement, all
capitalized terms defined herein shall have the meanings attributed to them as
set forth herein.
1.2 BENEFICIARIES shall mean all Holders of Allowed Claims.
1.3 OTHER DEFINED TERMS. Terms defined in the Plan, and not otherwise
specifically defined herein, shall, when used herein, have the meanings
attributed to them in the Plan. Terms defined in the Bankruptcy Code, and not
otherwise specifically defined in the Plan or herein, shall, when used herein,
have the meanings attributed to them in the Bankruptcy Code.
<PAGE> 2
ARTICLE II.
CREATION OF LIQUIDATING TRUST
2.1 DECLARATION OF TRUST. For good and valuable consideration, the
receipt whereof is hereby acknowledged by the undersigned, and pursuant to the
terms of the Plan, the Debtor executes this Trust Agreement and, subject to the
provisions of Section 2.2 below, irrevocably transfers, absolutely assigns,
conveys, sets over, and delivers to the Liquidating Trustee, and his successors
and assigns, all right, title and interest of the Debtor in and to the Assets
in trust to and for the benefit of the Beneficiaries for the uses and purposes
stated herein and in the Plan, except as may otherwise be specifically provided
by the Plan.
2.2 TRANSFER OF ASSETS. Transfer of the Debtor's Assets to the
Liquidating Trust pursuant to and in accordance with the Plan, shall be deemed
a transfer to and for the benefit of the Beneficiaries followed by a deemed
transfer by the Beneficiaries to the Liquidating Trust to hold in trust for the
benefit of the Beneficiaries, except as otherwise provided in the Plan or this
Trust Agreement. The Beneficiaries shall be treated as the grantors and deemed
owners of the Liquidating Trust. Except as otherwise provided by the Plan or
this Trust Agreement, upon the Effective Date of the Plan, title to the Assets
shall pass to the Liquidating Trust free and clear of all Claims and Interests,
in accordance with Section 1141 of the Bankruptcy Code, except for Liens on the
Assets held by Holders of Allowed Secured Claims (including Claims which become
Allowed Claims after the Effective Date). The Liquidating Trustee shall cause
a valuation to be made of the Assets and that valuation shall be used by the
Liquidating Trustee and the Beneficiaries for all federal income tax purposes
but shall not be binding on the Liquidating Trustee in regards to the
liquidation of the Assets. The Liquidating Trust shall not be permitted to
receive or retain cash or cash equivalents in excess of a reasonable amount to
meet Distributions and establish the reserves as provided herein and the Plan
or to maintain the value of the Assets during liquidation.
2.3 PURPOSE OF LIQUIDATING TRUST. The Liquidating Trust is created to
serve as a vehicle for the maintenance and preservation of the Assets for the
primary purpose of liquidating the Assets, with no objective to continue or
engage in the conduct of a trade or business, except to the extent reasonably
necessary to, and consistent with, the liquidating purpose of the Liquidating
Trust. In selling the Assets, or otherwise monetizing them, the Liquidating
Trustee shall use his best efforts, within a reasonable time frame, to maximize
the amount of Liquidation Proceeds derived therefrom.
2.4 OVERSIGHT COMMITTEE. As provided in the Plan, an Oversight Committee
shall be established and shall have the authority and responsibility to
supervise and review the activities and performance of the Liquidating Trustee,
and shall have the authority to remove and replace the Liquidating Trustee
pursuant to this Trust Agreement and the Plan. The Oversight Committee shall
have such further authority as may be specifically granted or necessarily
implied by the Plan. The Liquidating Trustee shall seek to accomplish the sale
or monetization of the Assets within a reasonable period of time to avoid undue
delay in Distribution to the Beneficiaries. The Liquidating Trustee shall
consult with the Oversight Committee on an ongoing basis to develop strategies
for Asset disposition.
2
<PAGE> 3
ARTICLE III.
LIQUIDATING TRUSTEE ACCEPTANCE
3.1 ACCEPTANCE OF LIQUIDATING TRUST. The Liquidating Trustee accepts the
Liquidating Trust imposed by this Trust Agreement and the Plan, and agrees to
perform upon and subject to the terms and conditions set forth herein and in
the Plan.
3.2 NAME OF TRUST. The Liquidating Trust established hereby shall bear
the name "NTC Liquidating Trust". In connection with the exercise of his
powers, authorities and duties as Liquidating Trustee, the Liquidating Trustee
may use such name or such variation thereon as he sees fit, or may use his own
name, as Liquidating Trustee.
ARTICLE IV.
RIGHTS, POWERS AND DUTIES OF LIQUIDATING TRUSTEE
4.1 STATUS OF LIQUIDATING TRUSTEE. On the Effective Date of the Plan, the
Liquidating Trustee shall be the representative of the Estate as that term is
used in 11 U.S.C. Section 1123(b)(3)(B) and shall have the rights and powers
provided for in the Bankruptcy Code in addition to any rights and powers
granted in this Trust Agreement and in the Plan. The Liquidating Trustee shall
be the successor-in-interest to the Debtor and the Committee with respect to
any Avoidance Action or any other Action commenced by the Debtor or the
Committee prior to the Confirmation Date and shall be deemed substituted for
the same as the party in such litigation. All such Avoidance Actions, Actions,
and other actions and any and all other claims, rights or interests
constituting Assets, shall be preserved, retained and enforced by the
Liquidating Trustee as the representative of the Estate pursuant to 11 U.S.C.
Section 1123(b)(3)(B). The Liquidating Trustee shall be a party-in-interest
as to all matters over which the Court has jurisdiction.
4.2 AUTHORITY. Subject to any limitations contained in, or as otherwise
provided by, this Trust Agreement or in the Plan, the Liquidating Trustee shall
have the following powers, authorities and duties, by way of the illustration
and not of limitation:
(a) Manage, sell and convert all or any portion of the Assets to
Cash and distribute the Net Distributable Proceeds as specified
in the Plan;
(b) Release, convey or assign any right, title or interest in or
about the Assets or any portion thereof;
(c) Pay and discharge any costs, expenses, professional fees or
obligations deemed necessary to preserve or enhance the value of
the Assets, discharge duties under the Plan or perform the
purpose of the Plan and this Trust Agreement;
3
<PAGE> 4
(d) Open and maintain bank accounts and deposit funds, draw checks
and make disbursements in accordance with the Plan and this
Trust Agreement;
(e) Except as otherwise provided in the Plan and this Trust
Agreement, engage and have such attorneys, accountants,
engineers, agents, tax specialists, financial advisors,
appraisers, investment bankers, other professionals, and clerical
and stenographic assistance as may, in the discretion of the
Liquidating Trustee, be deemed necessary;
(f) Sue and be sued and file or pursue objections to Claims;
(g) Enforce, waive or release rights, privileges or immunities of
any kind;
(h) Vote any share or shares of stock and otherwise exercise the
rights appurtenant to ownership of such stock;
(i) In general, without in any manner limiting any of the foregoing,
or the following, deal with the Assets or any part or parts
thereof in all other ways as would be lawful for any person
owning the same to deal therewith, provided, however, that the
investment powers of the Liquidating Trustee, other than those
reasonably necessary to maintain the value of the assets of the
Liquidating Trust and to further the liquidating purpose of the
trust, are limited to the power to invest in demand and time
deposits, such as short-term certificates of deposit, in banks
and other savings institutions, or other temporary, liquid
investments, such as United States Treasury Bills;
(j) Institute or continue litigation, including Avoidance Actions,
which were or otherwise could have been brought by the Debtor
or Creditors' Committee on behalf of the Estate, and prosecute or
defend all litigation or appeals on behalf of the Estate and,
when appropriate, settle such actions and claims with the
approval of the Court after hearing on notice, provided that
without the prior consent of the Oversight Committee, the
Liquidating Trustee shall not enter into any settlement of any
Claim that results in an Allowed Claim of $100,000 or more;
(k) Obtain and pay for insurance coverage relative to the proper
performance of his duties under the Plan and this Trust
Agreement, and to indemnification for himself and others provided
for in the Plan, and this Trust Agreement;
(l) At the appropriate time, ask the Court to enter the Final Decree;
and
4
<PAGE> 5
(m) Without limitation, do any and all things necessary to accomplish
the purposes of the Plan and this Trust Agreement.
4.3 SEPARATE TRUST FUNDS. After giving effect to the provisions of
Section 6.1 of the Plan, the Assets for each Debtor Estate shall be held by the
Liquidating Trustee in separate and segregated Trust Funds for the benefit of
the Creditors of such Debtor, all of which in the aggregate constitute the
Liquidating Trust.
4.4 EXPENSES. The Liquidating Trustee is authorized to pay obligations or
expenses of, or relating to, the Assets, or to Claims against the Estate, only
when the Liquidating Trustee, in his reasonable discretion, deems it to be in
the best interests of the Holders of Allowed General Unsecured Claims or
necessary to effectuate the Plan. Expenses and Claims shall be paid only by
the Trust Fund which incurred the expense or liability. In the event the
expense or liability cannot be clearly allocated to one Trust Fund, the
Liquidating Trustee, in consultation with the Oversight Committee, shall make
an equitable allocation including such allocation to, or on behalf of the
Energy Fuels Trust Funds as is appropriate.
4.5 PAYMENT OF ENERGY FUELS SUBSIDIARY CREDITOR CLAIMS. Prior to making
any Distribution, or payments to Holders of Administrative Claims, the
Liquidating Trustee shall pay all Energy Fuels Subsidiary Creditor Claims,
unless such Claim was assumed by the Purchaser and/or constitutes a Permitted
Encumbrance under the Plan. In the exercise of reasonable business judgement,
the Liquidating Trustee may also establish the Energy Fuels Subsidiary Creditor
Reserve; provided, however, that nothing in the Plan or this Trust Agreement
shall prevent the Liquidating Trustee from seeking an order from the Court,
after Notice and Hearing, approving the amount of the Energy Fuels Subsidiary
Creditors Reserve after which all rights of Energy Fuels Subsidiary Creditors
shall be limited solely against such reserve in accordance with the Plan.
4.6 DISTRIBUTIONS. The Liquidating Trustee shall make Distributions
pursuant to and in accordance with the Plan. The Liquidating Trustee may
affect such Distributions by causing one or more of Debtor's Affiliates to make
such Distributions directly to the Beneficiaries, if the Liquidating Trustee
deems such approach to be in the best interest of Creditors.
4.7 STATEMENTS. The Liquidating Trustee shall deliver each member of the
Oversight Committee a statement within ten (10) Business Days after the end of
each calendar quarter showing (i) all receipts and disbursements of the
Liquidating Trust (including each of the Reserves) during such quarter, and
(ii) the amount of (A) Available Cash and (B) each of the Reserves, in each
case at the beginning and end of such quarter, such statement to be certified
by the Liquidating Trustee as being true and accurate in all material respects.
To the extent practical, the statements shall provide separate information for
each Trust Fund.
4.8 TAX RETURNS/TAX MATTERS.
(a) The Liquidating Trustee shall file all tax returns and other
filing with governmental authorities on behalf of the Liquidating
Trust and the assets
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<PAGE> 6
it holds, including tax returns for the Liquidating Trust as a
grantor trust pursuant to Section 1.671-4(a) of the United States
Income Tax Regulations. The Liquidating Trustee shall provide
such information to the Beneficiaries as will enable them to
properly file their separate tax returns and withhold and pay
over any amounts required by tax law.
(b) The Liquidating Trustee is authorized to act as agent for the
Estate in withholding or paying over any amounts required by law
(including tax law) to be withheld or paid by the Estate in
connection with the transfer and assignment of the Assets to the
Liquidating Trust pursuant to the Plan.
(c) Except as otherwise set forth in this Trust Agreement or the
Plan, any items of income, deduction, credit, or loss of the
Trust shall be allocated for federal income tax purposes among
the Beneficiaries pro rata on the basis of their beneficial
interests; provided, however, that to the extent that any item of
income cannot be allocated in the taxable year in which it
arises, the Trust shall pay the federal, state and local taxes
attributable to such income (net of related deductions) and the
amount of such taxes shall be treated as having been received by,
and paid on behalf of the Beneficiaries when such allocations are
made.
4.9 ENGAGEMENT OF PROFESSIONALS. The Liquidating Trustee shall obtain the
approval of the Oversight Committee prior to retention and engagement of any
professional. Such approval shall not be unreasonably delayed or withheld.
The fees and expenses of such professionals shall be paid from the Operating
Reserve as provided in the Plan.
4.10 ESTABLISHMENT OF RESERVES. The Liquidating Trustee shall establish,
on the Effective Date of the Plan, or as soon thereafter as is practicable, out
of the Effective Date Cash, the Operating Reserve, the Professional Fee
Application Reserve, and the Disputed Senior Claims Reserve in accordance with
and pursuant to the terms of the Plan. The Liquidating Trustee may also
establish the Energy Fuels Subsidiary Creditor Reserve pursuant to and in
accordance with the Plan.
4.11 WITHHOLDING TAXES. The Liquidating Trustee shall be entitled to
deduct any federal or state withholding taxes from any payments made with
respect to Allowed Claims, as appropriate, and shall otherwise comply with
Section 346 of the Bankruptcy Code.
4.12 RESOLVING DISPUTED CLAIMS. After the Effective Date, objections to
Claims shall be made, and objections to Claims made previous thereto shall be
pursued, only by the Liquidating Trustee, in consultation with the Oversight
Committee in accordance with and pursuant to the terms of the Plan. Any
objections made by the Liquidating Trustee shall be
served and filed not later than 180 days after the Effective Date of the Plan;
provided that, such period may be extended by order of the Court for good cause
shown. After the Effective Date, the Liquidating Trustee, with the approval of
the Oversight Committee, may settle any Class 4 Claim where the proposed
Allowed Amount is to be less than $100,000 without Notice and a
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Hearing and without an order of the Court. All other settlements shall be
subject to Notice and a Hearing and a Final Order of the Court approving the
settlement. Ten days notice (plus three days if service is made by first class
mail) shall be adequate for any Claims settlement.
4.13 ABANDONMENT. With the prior consent of the Oversight Committee, and
pursuant to the Plan, the Liquidating Trustee may abandon, on notice to such
parties as are entitled to the same, any property which he determines in his
reasonable discretion to be of de minimis value to the Liquidating Trust,
including any pending adversary proceeding or other legal action commenced or
commenceable by the Liquidating Trust.
4.14 APPOINTMENT AS ATTORNEY-IN-FACT. To assure that all instruments of
transfer and other documents are duly executed on behalf of the Estate, in the
event the Debtor fails to cooperate, the Liquidating Trustee shall, on the
Effective Date of the Plan, be deemed by operation of law and the Confirmation
Order and without the need for any action by Benton or any other person
affiliated with the Debtor or any officer or director of such Persons or
Entities, to hold an irrevocable power-of-attorney on behalf of the Estate with
respect to the Estate and all Assets therein.
4.15 EXECUTORY CONTRACTS AND UNEXPIRED LEASES. The Liquidating Trustee
shall assume, assume and assign, or reject executory contracts and unexpired
leases, including but not limited to the Uranium Contracts, pursuant to and in
accordance with the Plan.
4.16 CORPORATE OFFICERS. For any Affiliate, other than an individual,
which is controlled by a Debtor and which is not a Debtor, the officers,
directors, or other persons with authority to act on behalf thereof shall,
pursuant to the Plan, continue on and after the Effective Date to hold such
office and to exercise such authority; provided that the Liquidating Trustee
may terminate such officers, directors, or other Persons with authority in his
sole discretion and may designate others to fill such positions and exercise
all authority on behalf of such Affiliate.
4.17 FURTHER AUTHORIZATION. The Liquidating Trustee and the Oversight
Committee shall be entitled to seek such orders, judgements, injunctions and
rulings as they deem necessary to carry out the intentions and purposes, and to
give full effect to the provisions, of the Plan and this Trust Agreement.
4.18 PREPARATION OF ESTATE RETURNS. Pursuant to and in accordance with
the Plan, the Liquidating Trustee shall be responsible for all tax matters of
the Estate, including, but not limited to, the filing of all tax returns and
other filing with governmental authorities on behalf of the Estate for time
periods ending on or before the Final Tax Day, the filing of determination
requests under Section 505(b) of the Bankruptcy Code, and responding to any tax
audits of the Estate.
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ARTICLE V.
THE LIQUIDATING TRUSTEE
5.1 GENERAL INDEMNIFICATION. The Liquidating Trust shall indemnify and
hold harmless any Person or Entity who was, or is, a party, or is threatened to
be made a party, to any pending or contemplated action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that such Person or Entity is or was the Liquidating Trustee or a member of the
Oversight Committee, or an agent, attorney, accountant or other professional
for the Liquidating Trustee or the Oversight Committee, against all costs,
expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by such entity in connection with such action, suit or
proceeding, or the defense or settlement of any claim, issue or matter therein,
to the fullest extent, except to the extent such liability is determined to be
the result of willful misconduct or gross negligence. Costs or expenses
incurred by any such entity in defending any such action, suit or proceeding
may be paid by the Liquidating Trust in advance of the institution or final
disposition of such action, suit or proceeding, if authorized by the
Liquidating Trustee and the Oversight Committee. The Liquidating Trustee may
in his discretion purchase and maintain insurance on behalf of any Person or
Entity who is or was a beneficiary of this provision.
5.2 NO RECOURSE. Except as provided in the Plan and this Trust Agreement,
no recourse shall ever be had, directly or indirectly, against the Liquidating
Trustee personally, or against any agent, attorney, accountant or other
professional for the Liquidating Trustee, by legal or equitable proceedings, or
by virtue of any statute or otherwise, nor upon any promise, contract,
instrument, undertaking, obligation, covenant or agreement whatsoever executed
by the Liquidating Trustee under the Plan, this Trust Agreement, or by reason
of the creation of any indebtedness by the Liquidating Trustee under the Plan
or this Trust Agreement for any purpose authorized by the Plan or this Trust
Agreement, it being expressly understood and agreed that all such liabilities,
covenants, and agreements shall be enforceable only against and be satisfied
only out of the Assets or such part thereof as shall under the terms of any
such agreement be liable therefor or shall be evidence only of a right of
payment out of the Assets.
5.3 LIMITED LIABILITY. The Liquidating Trustee shall not be liable for
any act he may do or omit to do while acting in good faith in the exercise of
his best judgment, and the fact that such act or omission was advised by an
authorized attorney for the Liquidating Trustee, shall be evidence of such good
faith and best judgment; nor shall the Liquidating Trustee be liable in any
event, except to the extent determined to be the result of his own gross
negligence or willful misconduct.
5.4 NO LIABILITY FOR ACTS OF PREDECESSOR. No successor Liquidating
Trustee shall be in any way responsible for the acts or omissions of any
Liquidating Trustee in office prior to the date on which such Person or Entity
becomes the Liquidating Trustee, nor shall he be obligated to inquire into the
validity or propriety of any such act or omission unless such successor
Liquidating Trustee expressly assumes such responsibility. Any successor
Liquidating Trustee shall be entitled to accept as conclusive any final
accounting and statement of Liquidating Trust Assets furnished to such
successor Liquidating Trustee by such predecessor Liquidating Trustee
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and shall further be responsible only for those Liquidating Trust Assets
included in such statement.
5.5 NO IMPLIED OBLIGATIONS. No other or further covenants or obligations
shall be implied into this Trust Agreement. The Liquidating Trustee shall not
be responsible in any manner whatsoever for the correctness of any recital,
statement, representation, or warranty herein, or in any documents or
instrument evidencing or otherwise constituting a part of the Liquidating Trust
Assets.
5.6 RESIGNATION OR REMOVAL. The Liquidating Trustee may resign at any
time by giving at least thirty (30) days' written notice to the members of the
Oversight Committee, provided that the Liquidating Trustee shall continue to
serve until the appointment of the successor Trustee is effective. If the
Oversight Committee at any time desires to terminate the appointment of the
Liquidating Trustee, the Oversight Committee may do so by written instrument
addressed to the Liquidating Trustee. In case of the resignation, removal or
death of the Liquidating Trustee, a successor shall thereupon be appointed by
the Oversight Committee pursuant to and in accordance with the provisions of
the Plan.
5.7 COMPENSATION. The Liquidating Trustee shall be compensated for
services in the administration of the Liquidating Trust in an amount and upon
any reasonable terms agreed upon between The Liquidating Trustee and the
Oversight Committee, without the approval of the Court. The compensation of
the Liquidating Trustee shall be equitably allocated by the Liquidating
Trustee, in consultation with the Oversight Committee, to the Trust Funds.
ARTICLE VI.
TERMINATION
The Liquidating Trust shall terminate at such time as the Assets have been
sold or distributed and claims pursued or abandoned pursuant to and in
accordance with the Plan and this Trust Agreement, but in any event, no later
than five (5) years from the date first written above, provided, that if
warranted by the facts and circumstances, and subject to the approval by the
Court upon a finding that the extension is necessary to the liquidating purpose
of the Liquidating Trust, the term may be extended for a finite term based on
the particular facts and circumstances. Each such extension must be approved
by the Court within six months of the beginning of the extended term.
ARTICLE VII.
MISCELLANEOUS
7.1 NOTICES. All notices, requests or other communications required or
permitted to be made in accordance with this Trust Agreement and the Plan,
shall be in writing and shall be delivered personally or by telex or other
telegraphic means or mailed by first class mail to the address set forth on the
signature line of such party with a copy to Carl A. Eklund and James L.
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Huemoeller, LeBoeuf, Lamb, Greene & MacRae, L.L.P., 633 Seventeenth Street,
Suite 2000, Denver, Colorado, 80202.
7.2 EFFECTIVENESS. This Trust Agreement shall become effective upon the
Effective Date of the Plan.
7.3 COUNTERPARTS. This Trust Agreement may be executed in one or more
counterparts, all of which shall be taken together to constitute one and the
same instrument.
7.4 GOVERNING LAW. Except to the extent the Bankruptcy Code or the
Bankruptcy Rules are applicable, this Trust Agreement shall be governed by,
construed under and interpreted in accordance with, the laws of the State of
Colorado.
7.5 HEADINGS. Sections, subheadings and other headings used in this Trust
Agreement are for convenience only and shall not limit or otherwise affect the
meaning and construction of this Trust Agreement.
7.6 SEVERABILITY. Any provision of this Trust Agreement which is
prohibited or unenforceable in any jurisdiction shall not invalidate the
remaining provisions hereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable any such
provision in any other jurisdiction.
7.7 ENTIRE AGREEMENT. This Trust Agreement (including the Recitals), the
Plan, and the Confirmation Order constitute the entire agreement by and among
the parties and there are no representations, warranties, covenants or
obligations except as set forth herein or therein. This Trust Agreement, the
Plan and the Confirmation Order supersede all prior and contemporaneous
agreements, understandings, negotiations, discussions, written or oral, of the
parties hereto, relating to any transaction contemplated hereunder. Except as
otherwise specifically provided herein, in the Plan or in the Confirmation
Order, nothing in this Trust Agreement is intended or shall be construed to
confer upon or to give any person other than the parties thereto and their
respective heirs, administrators, executors, successors, or assigns any right
to remedies under or by reason of this Trust Agreement.
7.8 EFFECT OF DEATH, INCAPACITY OR BANKRUPTCY OF BENEFICIARY. The Death,
incapacity or bankruptcy of a Beneficiary during the terms of this Trust
Agreement shall not operate to terminate the Trust Agreement, nor shall it
entitle the representatives or creditors of the deceased Beneficiary to an
accounting, or to take any action in the courts or elsewhere for the
distribution of the Assets or for a partition thereof, nor shall it otherwise
affect the rights and obligations of any Beneficiary.
7.9 EFFECT OF TRUST ON THIRD PARTIES. There is no obligation on the part
of any purchaser or purchasers from the Liquidating Trustee or any agent of the
Liquidating Trustee, or on the part of any other persons dealing with the
Liquidating Trustee or any agent of the Liquidating Trustee, to see to the
application of the purchase money or other consideration passing to the
Liquidating Trustee or any agent of the Liquidating Trustee, or to inquire into
the
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validity, expediency or propriety of any such transaction by the Liquidating
Trustee or any agent of the Liquidating Trustee.
7.10 WAIVER. No failure or delay of any party to exercise any right or
remedy pursuant to this Trust Agreement shall affect such right or remedy or
constitute a waiver by such party of any right or remedy pursuant thereto.
Resort to one form of remedy shall not constitute a waiver of alternative
remedies.
7.11 RELATIONSHIP CREATED. The only relationship created by this Trust
Agreement is the relationship between the Liquidating Trustee and the
Beneficiaries. No other relationship or liability is created. Nothing
contained in this Trust Agreement shall be construed so as to construe the
Beneficiaries or their successors-in-interest as creating an association,
partnership, or joint venture of any kind.
7.12 TAX IDENTIFICATION NUMBERS. The Liquidating Trustee may require any
Beneficiary to furnish to the Liquidating Trustee, its employer or tax payer
identification number as assigned by the Internal Revenue Service and the
Liquidating Trustee may condition any distribution to any Beneficiary upon
receipt of such identification number.
7.13 AMENDMENT OF TRUST AGREEMENT. This Trust Agreement may be amended,
modified or altered only upon approval of the Oversight Committee.
IN WITNESS WHEREOF, the parties hereto have executed this Trust Agreement
or caused this Trust Agreement to be duly executed by their respective officers
thereunto duly authorized as of the day and year first written above.
LIQUIDATING TRUSTEE:
By:
----------------------------
David J. Beckman
----------------------------
[Address]
----------------------------
NUEXCO TRADING CORPORATION
By:
----------------------------
Its:
---------------------------
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- -------------------------------------
[Address]
- -------------------------------------
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