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EXHIBIT 2.1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
IN RE: )
)
TRANSAMERICAN ENERGY )
CORPORATION, ) CASE NO. 99-21551-C-11
)
DEBTOR. )
SECOND AMENDED, MODIFIED AND RESTATED PLAN OF LIQUIDATION
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
PROPOSED BY DEBTOR
Dated: July 18, 2000
JORDAN, HYDEN, WOMBLE GARDERE & WYNNE, L.L.P.
& CULBRETH, P.C. John Nabors
Shelby Jordan Deirdre B. Ruckman
Bank America Towers 3000 Thanksgiving Tower
500 N. Shoreline, Suite 900 1601 Elm Street
Corpus Christi, TX 78471 Dallas, TX 75201
COUNSEL FOR DEBTOR SPECIAL COUNSEL FOR DEBTOR
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TABLE OF CONTENTS
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ARTICLE I
INTRODUCTION
Section 1.01 Introduction .............................................. 1
ARTICLE II
DEFINITIONS
Section 2.01 Administrative Designee ................................... 1
Section 2.02 Administrative Expense .................................... 1
Section 2.03 Allowed ................................................... 1
Section 2.04 Allowed Claim or Allowed Interest ......................... 1
Section 2.05 Ballots ................................................... 2
Section 2.06 Ballot Deadline ........................................... 2
Section 2.07 Bankruptcy Code ........................................... 2
Section 2.08 Bankruptcy Court .......................................... 2
Section 2.09 Bankruptcy Rules .......................................... 2
Section 2.10 Bar Date .................................................. 2
Section 2.11 Bondholder Committee ...................................... 2
Section 2.12 Bondholder DIP Facility ................................... 2
Section 2.13 Bondholder DIP Secured Claims ............................. 2
Section 2.14 Business Day .............................................. 3
Section 2.15 Cash ...................................................... 3
Section 2.16 Causes of Action .......................................... 3
Section 2.17 Chapter 11 Case ........................................... 3
Section 2.18 Claim ..................................................... 3
Section 2.19 Class ..................................................... 3
Section 2.20 Collateral ................................................ 3
Section 2.21 Confirmation .............................................. 3
Section 2.22 Confirmation Date ......................................... 3
Section 2.23 Confirmation Hearing ...................................... 3
Section 2.24 Confirmation Order ........................................ 3
Section 2.25 Creditor .................................................. 4
Section 2.26 Creditors' Committee ...................................... 4
Section 2.27 Debtor .................................................... 4
Section 2.28 Deficiency Claim .......................................... 4
Section 2.29 Disallowed ................................................ 4
Section 2.30 Disclosure Statement ...................................... 4
Section 2.31 Distribution Record Date .................................. 4
Section 2.32 Distributions ............................................. 4
Section 2.33 Effective Date ............................................ 4
Section 2.34 Entity .................................................... 4
Section 2.35 Estate .................................................... 4
Section 2.36 Face Amount ............................................... 4
Section 2.37 File, Filed or Filing ..................................... 5
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Section 2.38 Final Order ............................................... 5
Section 2.39 Firstar ................................................... 5
Section 2.40 General Unsecured Claim ................................... 5
Section 2.41 Governmental Unit ......................................... 5
Section 2.42 Impaired .................................................. 5
Section 2.43 Indenture Trustee ......................................... 5
Section 2.44 Indenture Trustee Claim ................................... 6
Section 2.45 Interests ................................................. 6
Section 2.46 Lien ...................................................... 6
Section 2.47 Petition Date ............................................. 6
Section 2.48 Plan ...................................................... 6
Section 2.49 Plan Documents ............................................ 6
Section 2.50 Priority Claim ............................................ 6
Section 2.51 Professionals ............................................. 6
Section 2.52 Ratable Proportion ........................................ 6
Section 2.53 Rejection Claim ........................................... 6
Section 2.54 Schedules ................................................. 7
Section 2.55 Secured Claim ............................................. 7
Section 2.56 TARC ...................................................... 7
Section 2.57 TARC Common Stock ......................................... 7
Section 2.58 TARC Plan ................................................. 7
Section 2.59 TARC Senior Secured Note .................................. 7
Section 2.60 TCR ....................................................... 7
Section 2.61 TCR Secured Note .......................................... 7
Section 2.62 TEC ....................................................... 7
Section 2.63 TEC Bondholders ........................................... 7
Section 2.65 TEC Senior Secured Note Claims ............................ 8
Section 2.66 TEC Senior Secured Note Deficiency Claims ................. 8
Section 2.67 TEC Senior Secured Notes .................................. 8
Section 2.68 TEC Senior Secured Notes Indenture ........................ 8
Section 2.69 TransTexas ................................................ 8
Section 2.70 TransTexas Common Stock ................................... 8
Section 2.71 TransTexas Plan ........................................... 8
Section 2.72 TransTexas Senior Secured Note ............................ 8
Section 2.73 TransTexas/TEC Note ....................................... 8
ARTICLE III
PROVISIONS FOR PAYMENT OF ADMINISTRATIVE
EXPENSE CLAIMS AND PRIORITY CLAIMS
Section 3.01 Treatment of Allowed Administrative Expenses ............. 9
Section 3.02 Bondholder DIP Secured Claims ............................. 9
Section 3.03 Treatment of Allowed Priority Claims ...................... 9
ARTICLE IV
CLASSIFICATION OF CLAIMS AND INTERESTS
Section 4.01 Class 1 ................................................... 9
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Section 4.02 Class 2 ................................................... 10
Section 4.03 Class 3 ................................................... 10
ARTICLE V
TREATMENT OF CLAIMS AND INTERESTS
Section 5.01 Treatment of Allowed Class 1 Claims (TEC Senior
Secured Note Claims) .................................... 10
Section 5.02 Treatment of Allowed Class 2 Claims (General
Unsecured Claims) ....................................... 10
Section 5.03 Treatment of Allowed Class 3 Interests (TEC Common
Stock Interests) ........................................ 10
ARTICLE VI
MEANS FOR IMPLEMENTATION OF THE PLAN
Section 6.01 General Corporate Matters ................................. 11
Section 6.02 Distributions to Holders of Allowed Claims;
Further Agreements ...................................... 11
Section 6.03 Cancellation of Existing Securities ....................... 12
Section 6.04 Payment of Firstar's Fees and Expenses as
Indenture Trustee ....................................... 13
Section 6.05 Corporate Action .......................................... 13
Section 6.06 Payment of Fees ........................................... 13
Section 6.07 Distribution Record Date .................................. 13
ARTICLE VII
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
Section 7.01 Rejection Generally ....................................... 13
ARTICLE VIII
DISCHARGE, RELEASES AND INDEMNIFICATION
Section 8.01 No Discharge of Debtor .................................... 14
Section 8.02 Releases .................................................. 14
Section 8.03 Indemnification ........................................... 15
Section 8.04 Conclusion of Chapter 11 Cases, and Dissolution
of Creditors' Committee ................................. 15
ARTICLE IX
CONDITIONS TO OCCURRENCE OF THE EFFECTIVE DATE
Section 9.01 Conditions to Occurrence of the Effective Date ............ 15
Section 9.02 Waiver of Conditions ...................................... 16
ARTICLE X
LEGAL BINDING EFFECT
Section 10.01 Effects of Confirmation ................................... 16
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ARTICLE XI
ADMINISTRATIVE PROVISIONS
Section 11.01 Retention of Jurisdiction ................................. 16
Section 11.02 Cram Down ................................................. 18
Section 11.03 Modification of the Plan .................................. 18
Section 11.04 Exemption from Certain Transfer Taxes ..................... 18
Section 11.05 Withdrawal or Revocation of the Plan ...................... 19
Section 11.06 Successors and Assigns .................................... 19
Section 11.07 Governing Law ............................................. 19
Section 11.08 Notices ................................................... 19
Section 11.09 Severability .............................................. 20
Section 11.10 Interpretation, Rules of Construction, Computation of
Time, and Choice of Law ................................. 20
Section 11.11 No Admissions ............................................. 21
Section 11.12 Limitation of Liability ................................... 21
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ARTICLE I
INTRODUCTION
Section 1.01 Introduction. This Plan is proposed by TransAmerican
Energy Corporation. Reference is made to the Disclosure Statement accompanying
the Plan for a discussion of TransAmerican Energy Corporation's history, results
of operations, historical financial information and properties, and for a
summary and analysis of this Plan. All holders of Claims against and Interests
in TransAmerican Energy Corporation are encouraged to read this Plan and the
Disclosure Statement in their entirety before voting to accept or reject the
Plan.
ARTICLE II
DEFINITIONS
The following terms used herein shall have the respective meanings
defined below:
Section 2.01 Administrative Designee means the person designated by the
Debtor and authorized by the Bankruptcy Court in the Confirmation Order to sign
the documents necessary for the dissolution of the Debtor and to serve as the
post-closing administrator for the wind-up of the Debtor.
Section 2.02 Administrative Expense means (a) any cost or expense of
administration of the Chapter 11 Case (including, without limitation, the fees
and expenses of Professionals) asserted or arising under Sections 503(b), or
507(b) of the Bankruptcy Code, (b) a Claim determined to be an Administrative
Expense pursuant to a Final Order, and (c) any fees or charges assessed against
the Estate under Section 1930, title 28, United States Code.
Section 2.03 Allowed means with respect to Claims and Interests, (a)
any Claim against, or Interest in, the Debtor, proof of which is timely Filed or
by order of the Bankruptcy Court is not or will not be required to be Filed, (b)
any Claim or Interest that has been or is hereafter listed in the Schedules as
neither disputed, contingent or unliquidated, and for which no timely Filed
proof of Claim has been Filed, (c) any Interest registered in the stock register
maintained by or on behalf of the Debtor as of the Distribution Record Date or
(d) any Claim allowed pursuant to this Plan and, in each such case in (a),
(b) and (c) above, as to which either (i) no objection to the allowance thereof
has been Filed within the applicable period of time fixed by this Plan, the
Bankruptcy Code, the Bankruptcy Rules or the Bankruptcy Court or (ii) such an
objection is so Filed and the Claim and Interest shall have been allowed
pursuant to a Final Order (but only to the extent so allowed).
Section 2.04 Allowed Claim or Allowed Interest means an Allowed Claim
or an Allowed Interest in a specified class. For example, an Allowed General
Unsecured Claim is an
Second Amended, Modified and Restated Plan of Liquidation proposed
by TransAmerican Energy Corporation Page 1
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Allowed Claim in the General Unsecured Claims Class and an Allowed Old Common
Stock Interest is an Allowed Interest in the Old Common Stock Interest Class.
Section 2.05 Ballots means the ballots that accompany the Plan and
Disclosure Statement upon which holders of Impaired Claims and Impaired
Interests entitled to vote on the Plan shall indicate their acceptance or
rejection of the Plan.
Section 2.06 Ballot Deadline means the date set by the Court as the
last date on which Ballots may be cast to vote on the Plan.
Section 2.07 Bankruptcy Code means Title 11, United States Code, as
amended from time to time, as applicable to the Chapter 11 Case.
Section 2.08 Bankruptcy Court means the United States Bankruptcy Court
for the Southern District of Texas, Corpus Christi Division, having jurisdiction
over the Chapter 11 Case or such other court of competent jurisdiction as may
obtain such jurisdiction in the future.
Section 2.09 Bankruptcy Rules means the Federal Rules of Bankruptcy
Procedure as promulgated by the United States Supreme Court under Section 2075,
title 28, United States Code, as amended from time to time, applicable to the
Chapter 11 Case, and any local rules of the Bankruptcy Court.
Section 2.10 Bar Date means as to Creditors other than Governmental
Units, September 27, 1999, as the final date for Filing Proofs of Claims or
Proofs of Interest herein; and as to Governmental Units, October 18, 1999, as
the final date for Filing Proofs of Claim or Proofs of Interest herein.
Section 2.11 Bondholder Committee means an unofficial committee
composed of the following TEC Bondholders: Credit Suisse First Boston Management
Corporation, Oaktree Capital Management, L.L.C., Angelo Gordon & Co., L.P. and
Merrill Lynch Asset Management, L.P.; provided, however, each of the foregoing
Entities shall cease to be a member of such committee from the date on which it
ceases to hold or manage at least $50,000,000 in principal amount of the TEC
Senior Secured Notes.
Section 2.12 Bondholder DIP Facility means the Debtor-In-Possession
loans and other financial accommodations provided pursuant to the Credit
Agreement among TransTexas, as borrower, the Debtor and TARC, as guarantors, and
Credit Suisse First Boston Corporation, Angelo Gordon & Co., LP. and Oaktree
Capital Management L.L.C. and their respective successors and assigns dated as
of April 27, 1999, as amended, and all ancillary agreements and instruments
thereto.
Section 2.13 Bondholder DIP Secured Claims means the Secured Claims of
the lenders arising under the Bondholder DIP Facility.
Section 2.14 Business Day means any day other than a Saturday, Sunday
or legal holiday.
Second Amended, Modified and Restated Plan of Liquidation proposed
by TransAmerican Energy Corporation Page 2
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Section 2.15 Cash means currency, a certified check, a cashier's check
or a wire transfer of immediately available funds from any source or a check
drawn on a domestic bank.
Section 2.16 Causes of Action means any and all actions, causes of
action, suits, accounts, controversies, agreements, promises, rights to legal
remedies, rights to equitable remedies, rights to payment, and Claims, whether
known or unknown, reduced to judgment, not reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
secured, unsecured and whether asserted or assertable directly or indirectly or
derivatively, in law, equity or otherwise.
Section 2.17 Chapter 11 Case means the Debtor's voluntary case pending
in the Bankruptcy Court under Chapter 11 of the Bankruptcy Code as case number
99-21551.
Section 2.18 Claim means any right to (a) payment from the Debtor,
whether or not such right is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured, or unsecured, known or unknown, or (b) an equitable remedy for breach
of performance if such breach gives rise to a right of payment from the Debtor,
whether or not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured, unmatured, disputed, undisputed, secured, or unsecured,
known or unknown.
Section 2.19 Class means any group of substantially similar Claims or
Interests classified by the Plan pursuant to Section 1129(a)(1) of the
Bankruptcy Code.
Section 2.20 Collateral means any property or interest in property of
the Estate subject to a Lien to secure the payment or performance of a Claim,
which Lien is not subject to avoidance under the Bankruptcy Code.
Section 2.21 Confirmation means the entry of the Confirmation Order on
the docket maintained by the Clerk of the Bankruptcy Court with respect to the
Chapter 11 Case.
Section 2.22 Confirmation Date means the date on which the Confirmation
Order is entered on the docket maintained by the Clerk of the Bankruptcy Court
with respect to the Chapter 11 Case.
Section 2.23 Confirmation Hearing means the hearing held by the
Bankruptcy Court regarding confirmation of the Plan pursuant to Section 1129 of
the Bankruptcy Code, as such hearing may be adjourned or continued from time to
time.
Section 2.24 Confirmation Order means the order of the Bankruptcy Court
confirming the Plan pursuant to Section 1129 of the Bankruptcy Code.
Section 2.25 Creditor means any Entity that is the holder of a Claim
that arose on or before the Petition Date or a Claim of the kind specified in
Section 502(g), 502(h) or 502(i) of the Bankruptcy Code.
Second Amended, Modified and Restated Plan of Liquidation proposed
by TransAmerican Energy Corporation Page 3
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Section 2.26 Creditors' Committee means the Official Committee of
Unsecured Creditors in the Chapter 11 cases of the Debtor, TransTexas and TARC,
as appointed by the Office of the United States Trustee and reconstituted from
time to time, which members are identified in the Disclosure Statement.
Section 2.27 Debtor means TransAmerican Energy Corporation, a Delaware
corporation, the debtor in the Chapter 11 Case.
Section 2.28 Deficiency Claim means with respect to a Claim that is
partially secured, the amount by which the Allowed amount of such Claim exceeds
the value of the Collateral which secures such Claim.
Section 2.29 Disallowed means, when used with respect to a Claim or an
Interest, a Claim or an Interest that has been disallowed pursuant to a Final
Order.
Section 2.30 Disclosure Statement means the Disclosure Statement
relating to the Plan, including, without limitation, all exhibits and schedules
thereto as approved by the Bankruptcy Court pursuant to Section 1125 of the
Bankruptcy Code, as such Disclosure Statement may be amended, modified, or
supplemented.
Section 2.31 Distribution Record Date means 5:00 p.m. on the Business
Day immediately preceding the Confirmation Date or other such time and date
designated in the Confirmation Order.
Section 2.32 Distributions means the distributions to be made pursuant
to the Plan.
Section 2.33 Effective Date means a Business Day selected by the
Debtor, with the prior consent of the Bondholder Committee that is the later of
(a) a day that is not less than eleven (11) days after the Confirmation Date and
(b) the first Business Day on which all conditions to the occurrence of the
Effective Date have been satisfied or duly waived.
Section 2.34 Entity means any individual, corporation, limited or
general partnership, joint venture, association, joint stock company, limited
liability company, estate, entity, trust, trustee, United States Trustee,
unincorporated organization, government, Governmental Unit, agency or political
subdivision thereof.
Section 2.35 Estate means the estate of TEC created by Section 541 of
the Bankruptcy Code upon the commencement of the Chapter 11 Case.
Section 2.36 Face Amount means: (a) with respect to a particular Claim
(i) if the Claim is listed in the Schedules and the holder of such Claim has not
Filed a proof of Claim within the applicable period of limitation fixed by the
Bankruptcy Court pursuant to the Bankruptcy Code, the Bankruptcy Rules or other
applicable law, the amount of such Claim that is listed in the Schedules as not
disputed, contingent or unliquidated; or (ii) if the holder of such Claim has
Filed a proof of Claim with the Bankruptcy Court within the applicable period of
limitation fixed by the
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Bankruptcy Court pursuant to the Bankruptcy Code, the Bankruptcy Rules or other
applicable law, the liquidated amount stated in such proof of Claim, or such
amount as is determined by the Final Order of the Bankruptcy Court; (b) in the
case of an Administrative Expense, the liquidated amount set forth in any
application Filed with respect thereto, or the amount set forth in the Debtor's
books and records or such amount as is determined pursuant to a Final Order; or
(c) in all other cases, zero or such amount as shall be fixed or estimated
pursuant to a Final Order.
Section 2.37 File, Filed or Filing means file, filed or filing with the
Bankruptcy Court in the Chapter 11 Case.
Section 2.38 Final Order means an order or judgment of the Bankruptcy
Court entered by the Clerk of the Bankruptcy Court on the docket in the Chapter
11 Case, which has not been reversed, vacated or stayed and as to which (a) the
time to appeal, petition for certiorari or move for a new trial, reargument or
rehearing has expired and as to which no appeal, petition for certiorari or
other proceedings for a new trial, reargument or rehearing shall then be pending
or (b) if an appeal, writ of certiorari, new trial, reargument or rehearing
thereof has been sought, such order or judgment of the Bankruptcy Court shall
have been affirmed by the highest court to which such order was appealed, or
certiorari shall have been denied or a new trial, reargument or rehearing shall
have been denied or resulted in no modification of such order, and the time to
take any further appeal, petition for certiorari or move for a new trial,
reargument or rehearing shall have expired; provided, however, that the
possibility that a motion under Rule 60 of the Federal Rules of Civil Procedure,
or any analogous rule under the Bankruptcy Rules, may be Filed relating to such
order, shall not cause such order not to be a Final Order.
Section 2.39 Firstar means Firstar Bank, N.A., formerly known as
Firstar Bank of Minnesota, N.A., as Indenture Trustee for the TEC Bondholders.
Section 2.40 General Unsecured Claim means any Claim, including,
without limitation, the TEC Senior Secured Note Deficiency Claims, that is not
an Administrative Expense, a Priority Claim or a Secured Claim.
Section 2.41 Governmental Unit means a governmental unit as such term
is defined in Section 101(27) of the Bankruptcy Code.
Section 2.42 Impaired means with respect to any Claim or Interest
impaired within the meaning of Section 11 U.S.C. Section 1124 of the Bankruptcy
Code.
Section 2.43 Indenture Trustee means any Entity identified as the
trustee, paying agent or other similar fiduciary under a bond, note or other
debt instrument (including, but not limited to, Firstar under the TEC Senior
Secured Notes Indenture), whether or not the agreement evidencing the debt or
delineating its terms is denominated as an indenture.
Section 2.44 Indenture Trustee Claim means the fees and expenses of
Firstar, as Indenture Trustee under the TEC Senior Secured Notes Indenture, or
any other successor Indenture Trustee, incurred in their capacity as such,
including the fees and expenses of its counsel.
Second Amended, Modified and Restated Plan of Liquidation proposed
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Section 2.45 Interests means, as of the Petition Date, the equity
interests in the Debtor, including, without limitation, shares of common stock
and shares of preferred stock of the Debtor and any rights, options, warrants,
calls, subscriptions or other similar rights or agreements, commitments or
outstanding securities obligating the Debtor to issue, transfer or sell any
shares of capital stock of the Debtor.
Section 2.46 Lien means any charge against, encumbrance upon or other
interest in property, the purpose of which is to secure payment of a debt or
performance of an obligation.
Section 2.47 Petition Date means April 20, 1999, the date on which the
Debtor commenced the Chapter 11 Case.
Section 2.48 Plan means this Second Amended, Modified and Restated Plan
of Liquidation Under Chapter 11 of the Bankruptcy Code Proposed by the Debtor
dated as of September 29, 1999, and as amended and restated by the Plan dated as
of July 18, 2000, including, without limitation, the annexes, exhibits and
schedules hereto, as the same may be amended or modified from time to time in
accordance with the Confirmation Order, the provisions of the Bankruptcy Code
and the terms hereof.
Section 2.49 Plan Documents means the agreements, documents and
instruments entered into on or as of the Effective Date as contemplated by, and
in furtherance of, the Plan.
Section 2.50 Priority Claim means any Claim other than an
Administrative Expense Claim, entitled to priority in payment under Section
507(a) and 507(a)(8) of the Bankruptcy Code.
Section 2.51 Professionals means those Entities: (a) employed pursuant
to an order of the Bankruptcy Court in accordance with Sections 327 or 1103 of
the Bankruptcy Code providing for compensation for services rendered prior to
the Effective Date pursuant to Sections 327, 328, 329, 330 and 331 of the
Bankruptcy Code, or (b) seeking compensation and reimbursement pursuant to
Sections 503(b)(2) or (4) of the Bankruptcy Code.
Section 2.52 Ratable Proportion means, with reference to any
Distribution on account of any Claim or Interest in any Class or subclass, a
Distribution equal in amount to the ratio (expressed as a percentage) that the
amount of such Claim or number of shares evidencing such Interest, as
applicable, bears to the aggregate amount of Claims or aggregate number of
outstanding shares of Interests in the same Class or subclass, as applicable.
Section 2.53 Rejection Claim means any Claim against the Debtor arising
from the rejection of any executory contract or unexpired lease, including any
Claim of (a) a lessor for damages resulting from the rejection of a lease of
real property as any such Claim shall be calculated in accordance with Section
502(b)(6) of the Bankruptcy Code or (b) an employee for damages resulting from
the rejection of an employment agreement as any such Claim shall be calculated
in accordance with Section 502(b)(7) of the Bankruptcy Code. A Rejection Claim
shall constitute a General Unsecured Claim.
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Section 2.54 Schedules means the schedules of assets and liabilities
and the statement of financial affairs Filed by the Debtor under Section 521 of
the Bankruptcy Code, Bankruptcy Rule 1007 on June 14, 1999, as amended from time
to time.
Section 2.55 Secured Claim means a Claim secured by a Lien on
Collateral to the extent of the value of such Collateral (a) as set forth in the
Plan, (b) as agreed to by the holder of such Claim and the Debtor or (c) as
determined pursuant to a Final Order in accordance with Section 506(a) of the
Bankruptcy Code or, in the event that such Claim is subject to setoff under
Section 553 of the Bankruptcy Code, to the extent of such setoff.
Section 2.56 TARC means TransAmerican Refining Corporation, a Texas
corporation, and a debtor-in-possession, in case number 99-21552, pending in the
Bankruptcy Court and which is jointly administered with the Debtor and
TransTexas.
Section 2.57 TARC Common Stock means all authorized, issued and
outstanding shares of the Common Stock of TARC $.01 par value, as of the
Petition Date.
Section 2.58 TARC Plan means the Second Amended, Modified and Restated
Plan of Liquidation under Chapter 11 of the Bankruptcy Code proposed by TARC
dated as of September 29, 1999, and as amended and restated in the TARC plan of
liquidation dated as of July 18, 2000, including without limitation, the
annexes, exhibits and schedules thereto, amended from time to time.
Section 2.59 TARC Senior Secured Note means the fully accreted $920
million senior secured note dated June 13, 1997, originally executed by TARC
payable to TEC and which was pledged as collateral for the TEC Senior Secured
Notes.
Section 2.60 TCR means TCR Holding Corporation, a Delaware corporation.
Section 2.61 TCR Secured Note means the Secured Note assumed by TCR,
dated November 1, 1998, in the original face amount of $50,000,000 with interest
thereon as therein provided payable to TEC and pledged to Firstar by TEC as
Collateral for the TEC Senior Secured Notes.
Section 2.62 TEC means TransAmerican Energy Corporation, a Delaware
corporation, and the Debtor and the Debtor-in-Possession.
Section 2.63 TEC Bondholders means the holders of the TEC Senior
Secured Notes as of the Distribution Record Date.
Section 2.64 TEC Common Stock means all authorized, issued and
outstanding shares of the common stock of TEC, $0.1 par value, as of the
Petition Date and all other Interests.
Second Amended, Modified and Restated Plan of Liquidation proposed
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Section 2.65 TEC Senior Secured Note Claims means the Secured Claims of
the TEC Bondholders.
Section 2.66 TEC Senior Secured Note Deficiency Claims means the
Deficiency Claims of the TEC Bondholders.
Section 2.67 TEC Senior Secured Notes means, collectively, the $475
million aggregate principal amount of the 11 1/2% Senior Secured Notes due 2002
and the $1.13 billion aggregate principal amount of the 13% Senior Secured
Discount Notes due 2002 issued by TEC pursuant to the TEC Senior Secured Notes
Indenture.
Section 2.68 TEC Senior Secured Notes Indenture means the Indenture
between TEC, as issuer, and Firstar, as Indenture Trustee, dated as of June 13,
1997, as amended from time to time, which relates to the TEC Senior Secured
Notes.
Section 2.69 TransTexas means TransTexas Gas Corporation, a Delaware
corporation and a debtor-in-possession, in Case No. 99-21550, pending in the
Bankruptcy Court and which is jointly administered with the Chapter 11 cases of
the Debtor and TARC.
Section 2.70 TransTexas Common Stock means all authorized, issued and
outstanding shares of the Common Stock of TransTexas $.01 par value, as of the
Petition Date.
Section 2.71 TransTexas Plan means the Second Amended, Modified and
Restated Plan of Reorganization under Chapter 11 of the Bankruptcy Code proposed
by TransTexas dated as of September 29, 1999, and as amended and restated by the
TransTexas plan of reorganization dated as of January 25, 2000, and confirmed by
an order of the Bankruptcy Court entered on February 7, 2000, including without
limitation, the annexes, exhibits and schedules thereto, as the same may be
amended or modified from time to time in accordance with the confirmation order
entered in the TransTexas bankruptcy proceeding and pursuant to, the provisions
of the Bankruptcy Code and the terms thereof.
Section 2.72 TransTexas Senior Secured Note means the $450 million
senior secured note dated June 13, 1997, originally made by TransTexas payable
to TEC and which was pledged as Collateral for the TEC Senior Secured Notes.
Section 2.73 TransTexas/TEC Note means the Note made by TransTexas to
TEC in the original face amount of $50,000,000 with interest thereon as therein
provided, dated January 23, 1998, payable to TEC and which was pledged as
Collateral for the TEC Senior Secured Notes.
Second Amended, Modified and Restated Plan of Liquidation proposed
by TransAmerican Energy Corporation Page 8
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ARTICLE III
PROVISIONS FOR PAYMENT OF ADMINISTRATIVE EXPENSE CLAIMS AND
PRIORITY CLAIMS
Section 3.01 Treatment of Allowed Administrative Expenses. Unless
otherwise provided for herein, each holder of an Allowed Administrative Expense
(including, without limitation, all compensation and reimbursement of expenses
of Professionals pursuant to Sections 327, 328, 330, 331, 503(b) or 1103 of the
Bankruptcy Code) shall receive 100% of the unpaid Allowed amount of such
Administrative Expense in Cash on or as soon as reasonably practicable after the
later of: (a) the Effective Date; and (b) the date on which such Administrative
Expense becomes Allowed, provided, that an Allowed Administrative Expense may be
paid on such other terms and conditions as are agreed to between the Debtor and
the holder of such Allowed Administrative Expense. All Professionals requesting
compensation or reimbursement of expenses pursuant to Sections 327, 328, 330,
331, or 503(b) of the Bankruptcy Code for services rendered before the Effective
Date shall File and serve on the Debtor, the Creditors' Committee, the
Bondholder Committee, and the United States Trustee an application for final
allowance of compensation and reimbursement of expenses no later than forty-five
(45) days after the Confirmation Date. Objections to applications of
Professionals for compensation or reimbursement of expenses must be Filed and
served on the Debtor, the United States Trustee, the Bondholder Committee, the
Creditors' Committee and the Professionals to whose fee application the
objections are addressed.
Section 3.02 Bondholder DIP Secured Claims. The Bondholder DIP Secured
Claims are Allowed in full and the Allowed Bondholder DIP Secured Claims shall
receive no Distributions.
Section 3.03 Treatment of Allowed Priority Claims. Each holder of an
Allowed Priority Claim shall receive an amount of Cash equal to 100% of the
unpaid Allowed Amount of such Claim on as soon as practicable after the later
of: (a) the Effective Date, or (b) the date on which such Priority Claim became
an Allowed Priority Claim.
ARTICLE IV
CLASSIFICATION OF CLAIMS AND INTERESTS
Pursuant to Section 1122 of the Bankruptcy Code, set forth below is a
designation of classes of Claims and Interests. Administrative Expenses and
Priority Claims of the kinds specified in Sections 507(a)(1), 502(i) and
507(a)(8) of the Bankruptcy Code have not been classified and are excluded from
the following classes in accordance with Section 1123(a)(1) of the Bankruptcy
Code.
Section 4.01 Class 1 consists of all TEC Senior Secured Note Claims.
Second Amended, Modified and Restated Plan of Liquidation proposed
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Section 4.02 Class 2 consists of all General Unsecured Claims.
Section 4.03 Class 3 consists of all Interests.
ARTICLE V
TREATMENT OF CLAIMS AND INTERESTS
Section 5.01 Treatment of Allowed Class 1 Claims (TEC Senior Secured
Note Claims).
(a) The TEC Senior Secured Note Claims are Allowed in full. On the
Effective Date, each holder of an Allowed TEC Senior Secured Note Claim as of
the Distribution Record Date shall receive on account of its Allowed TEC Senior
Secured Note Claim, except to the extent distributed or treated theretofore in
accordance with the TransTexas Plan and/or the TARC Plan, its Ratable Proportion
of all of the Debtor's right, title and interest in each item of Collateral
securing any of the Debtor's obligations arising under, in respect of, or
relating to, the TEC Senior Secured Notes, the TEC Senior Secured Notes
Indenture and/or any other agreement or instrument entered into in connection
therewith, including, without limitation, all of the Debtor's right, title and
interest, if any, in (i) the TransTexas Senior Secured Note and all related
rights, (ii) the TARC Senior Secured Note and all related rights, (iii) the
TransTexas/TEC Note and all related rights, (iv) the TCR Secured Note and all
related rights, (v) the TARC Common Stock and (vi) the TransTexas Common Stock.
(b) As more specifically set forth in, and without in any way limiting,
Section 8.01 of this Plan, the Distributions provided in this Section 5.01 are
in full settlement, release and discharge of each of the TEC Senior Secured Note
Claims.
(c) Class 1 is Impaired. Holders of Allowed TEC Senior Secured Note
Claims shall be entitled to vote to accept or reject the Plan.
Section 5.02 Treatment of Allowed Class 2 Claims (General Unsecured
Claims).
(a) Each holder of a General Unsecured Claim (other than Affiliates of
the Debtor) shall receive its Ratable Proportion of $5,000.
(b) Class 2 is Impaired under this Plan. Holders of Class 2 Claims will
be entitled to vote to accept or reject the Plan.
Section 5.03 Treatment of Allowed Class 3 interests (TEC Common Stock
Interests).
(a) On the Effective Date, the Interests shall be canceled.
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(b) Class 3 is Impaired under this Plan. Holders of such Interests are
deemed to have rejected the Plan
ARTICLE VI
MEANS FOR IMPLEMENTATION OF THE PLAN
In addition to the provisions set forth elsewhere in this Plan, the
following shall constitute the means for implementation of this Plan.
Section 6.01 General Corporate Matters. The Debtor shall take such
action as is necessary under the laws of the States of Delaware and Texas,
federal law and other applicable law to effect the terms and provisions of the
Plan and the Plan Documents.
Section 6.02 Distributions to Holders of Allowed Claims; Further
Agreements. On the Effective Date, the Debtor shall execute and deliver to the
Holders of Allowed TEC Senior Secured Note Claims all documents, agreements and
instruments reasonably requested by Firstar or the Bondholder Committee to
effectuate the treatment of the Class 1 Claims under the Plan and such further
documents, instruments and agreements as are necessary to effectuate and further
evidence the terms and conditions of the Plan.
For the purposes of such Distributions, Firstar shall be deemed to be
the sole holder of all such Claims. All Distributions on account of Allowed TEC
Senior Secured Note Claims shall be distributed to Firstar, as Indenture
Trustee, for further distribution to the TEC Bondholders pursuant to the terms
of the TEC Senior Secured Notes Indenture. Neither Firstar nor the TEC
Bondholders shall have assumed or be deemed to have assumed any liabilities, or
obligations of the Debtor by virtue of the treatment of the TEC Senior Secured
Note Claims hereunder and this Section 6.02. All assets and rights transferred
to Firstar on the Effective Date shall be administered by Firstar in accordance
with the TEC Senior Notes Indenture.
Notwithstanding anything contained in this Plan or the TEC Senior
Secured Notes Indenture to the contrary, Firstar shall have no duties to the TEC
Bondholders with respect to the Distributions it receives pursuant to Section
6.02 of this Plan, other than (i) in accordance with the Confirmation Order, to
recover the common stock of Orion Refining Corporation that was pledged to TEC
in accordance with that certain Security and Pledge Agreement by TCR in favor of
TEC, dated as of December 15, 1998, and (ii) to take actions to facilitate the
Distribution to each TEC Bondholder its Ratable Proportion of such common stock
of Orion Refining Corporation; provided however, that any additional
distribution made by Firstar, at its own volition, to the TEC Bondholders (or
any of them) shall only be made if made, pro rata, in accordance with the TEC
Senior Secured Notes Indenture.
No fractional shares of such common stock shall be distributed in
connection with the foregoing. When any Distribution of the same to the TEC
Bondholders would otherwise result in the issuance of a number of shares of such
common stock that is not a whole number, the actual Distribution of shares of
such common stock shall be rounded as follows: (x) fractions of one-half
Second Amended, Modified and Restated Plan of Liquidation proposed
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or greater shall be rounded to the next higher whole number and (y) fractions of
less than one-half shall be rounded to the next lower whole number.
Section 6.03 Cancellation of Existing Securities. On the Effective
Date, the TEC Common Stock, and any options, warrants, calls, subscriptions, or
other similar rights or other agreements or commitments, contractual or
otherwise, obligating the Debtor to issue, transfer, or sell any shares of TEC
Common Stock, or any other capital stock of the Debtor shall be canceled and the
holders thereof shall have no rights, and such instruments shall evidence no
rights.
After Firstar shall have performed all of its obligations under Section
6.02 of the Plan, Sections 5.01(b) and 6.03 of the TARC Plan and the TEC Senior
Secured Notes Indenture (which Firstar shall be obligated to perform reasonably
promptly), such Indenture, the TEC Senior Secured Notes, and any and all related
agreements and instruments (including, without limitation, any and all related
agreements and instruments granting Firstar any security interest and/or rights
in connection therewith and/or under which Firstar has been granted any other
rights, regardless of whether the Debtor is the obligor or granting party
thereunder) shall be deemed canceled in all respects, except that such
cancellation shall not impair the rights of the holders of the TEC Senior
Secured Note Claims to receive Distributions under the Plan or the rights of
the Indenture Trustee under its charging liens, if any, pursuant to the TEC
Senior Secured Notes Indenture to the extent that the Indenture Trustee has not
received payment and, to the extent applicable, a reserve has been established
on account of the Indenture Trustee Claim. During the time period commencing on
the Confirmation Date and terminating on the date on which Firstar shall have
performed all of its obligations under Section 6.02 of the Plan, Sections
5.01(b) and 6.03 of the TARC Plan and the TEC Senior Secured Notes Indenture,
Firstar shall not, unless otherwise directed in writing by a majority in
principal amount of the TEC Bondholders, enforce any remedies nor exercise any
rights under or with respect to the TEC Senior Secured Notes Indenture, the TEC
Senior Secured Notes and/or any and all related agreements and instruments
(including, without limitation, any and all related agreements and instruments
granting Firstar any security interest and/or rights in connection therewith
and/or under which Firstar has been granted any other rights, regardless of
whether the Debtor is the obligor or granting party), except insofar as the same
relate to (a) the appeal of the order of the Bankruptcy Court confirming the
TransTexas Plan and/or any order of the Bankruptcy Court or any appellate court
entered in connection therewith, (b) Firstar's charging lien, if any, under the
TEC Senior Secured Notes Indenture, and/or (c) Firstar's right to payment and/or
indemnification under the TEC Senior Secured Notes Indenture.
After Firstar or its agents perform their obligations under the Plan,
the Plan Documents and the TEC Senior Secured Notes Indenture, including,
without limitation, their obligations under Section 6.02 of the Plan, Firstar
and its agents, successors and assigns each shall be discharged of all of their
obligations associated with the TEC Senior Secured Notes Indenture and all
related agreements and instruments (including, without limitation, any and all
related agreements and instruments granting Firstar any security interest and/or
rights in connection therewith and/or under which Firstar has been granted any
other rights, regardless of whether the Debtor is the obligor or granting party
thereunder).
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Section 6.04 Payment of Firstar's Fees and Expenses as Indenture
Trustee. Unless otherwise agreed by Firstar and the Debtor, on the Effective
Date, the Debtor shall pay or cause to be paid to Firstar an amount in Cash
equal to the Indenture Trustee Claim of Firstar for its reasonable fees and
expenses incurred as Indenture Trustee prior to the Effective Date. In the event
that the Debtor is unable to perform the foregoing obligation, Firstar shall
have the right to impose its charging lien to obtain payment of the Indenture
Trustee Claim of Firstar upon all Distributions that it receives pursuant to
this Plan and the TARC Plan on behalf of the TEC Bondholders. Nothing in this
Plan shall limit Firstar's rights to payment of its Indenture Trustee
Claim arising after the Effective Date.
Section 6.05 Corporate Action.
(a) Each of the matters provided for under the Plan involving the
corporate structure of the Debtor or corporate action to be taken by, or
required of, the Debtor shall, as of the Effective Date, be deemed to have
occurred and be effective as provided herein, and shall be authorized and
approved in all respects without any requirement or further action by
stockholders, directors or members, as the case may be, of the Debtor. On and
after the Effective Date, the Administrative Designee shall be authorized and
directed to take all necessary and appropriate actions to effectuate the
transactions contemplated by the Plan.
(b) On the Effective Date, the Debtor shall be dissolved without any
further action by the stockholders or directors of the Debtor, and the
Administrative Designee as promptly as possible shall file a certificate of
dissolution of the Debtor and take all other actions necessary or appropriate to
effect such dissolution under applicable state law.
Section 6.06 Payment of Fees. All fees payable on or before the
Effective Date (i) pursuant to section 1930 of title 28 of the United States
Code, as determined by the Court at the Confirmation Hearing, and (ii) to the
United States Trustee, shall be paid by the Debtor on or before the Effective
Date and all such fees payable after the Effective Date shall be paid by the
Administrative Designee.
Section 6.07 Distribution Record Date. As of the close of business on
the Distribution Record Date, the transfer register for the TEC Senior Secured
Notes will be closed, and Firstar shall have no obligation to recognize the
transfer of any TEC Senior Secured Notes occurring after such time and will be
entitled for all purposes herein to recognize and deal only with those holders
of record as of such time.
ARTICLE VII
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
Section 7.01 Rejection Generally. On the Effective Date, pursuant to
Section 365 of the Bankruptcy Code, all executory contracts and unexpired leases
of the Debtor are rejected. The
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Confirmation Order shall constitute an order of the Bankruptcy Court approving
such rejections on the Confirmation Date, pursuant to Section 365 of the
Bankruptcy Code, effective as of the Effective Date.
ARTICLE VIII
DISCHARGE, RELEASES AND INDEMNIFICATION
Section 8.01 No Discharge of Debtor. The Plan provides for liquidation
of all of the Debtor's assets and the discontinuance of its business.
Accordingly, and pursuant to Section 1141(d)(3) of the Bankruptcy Code, the
Debtor shall not receive a discharge.
Section 8.02 Releases.
(a) On the Effective Date, the Debtor shall be deemed to release
unconditionally, and hereby is deemed to release unconditionally on such date
(i) each present or former officer, director, shareholder, employee, consultant,
attorney, accountant and other representatives of the Debtor, (ii) the
Creditors' Committee and, solely in their capacity as members or representatives
of the Creditors' Committee, each consultant, attorney, accountant or other
representative or member of the Creditors' Committee, (iii) the Entities serving
on the Bondholder Committee at any time during the Chapter 11 Case and, solely
in their capacity as representatives of such holders, each of such Entity's
respective officers, directors, shareholders, partners, agents, employees,
consultants, attorneys, accountants and other representatives, (iv) Firstar, as
Indenture Trustee, and, solely in their capacity as representatives of Firstar,
as Indenture Trustee, each of such Entity's officers, directors, shareholders,
employees, consultants, attorneys, accountants, advisors, affiliates and other
representatives, (v) the holders of the Bondholder DIP Secured Claims and,
solely in their capacity as representatives of such holders, each of such
holder's respective officers, directors, shareholders, partners, agents,
employees, consultants, accountants, advisors, affiliates and other
representatives (the Entities specified in clauses (i) through (v) are referred
to collectively as the "Releasees"), from any and all claims, obligations,
suits, judgments, rights, causes of action, damages and liabilities whatsoever,
whether known or unknown, foreseen or unforeseen, existing or hereafter arising,
in law, equity or otherwise, based in whole or in part upon or related to any
act or omission, transaction, event or other occurrence taking place on or prior
to the Effective Date in any way relating to the Debtor and/or the Chapter 11
Case, or the Plan, except that no officers or directors of the Debtor shall be
released with respect to (w) any indebtedness of such Releasee to Debtor or
Debtor-in-Possession for money borrowed by such Releasee, (x) any setoff or
counterclaim Debtor or Debtor-in-Possession may have or assert against any such
Releasee, provided that the aggregate amount thereof shall not exceed the
aggregate amount of any Claims held or asserted by such Releasee against Debtor
or Debtor-in-Possession, as the case may be, (y) Claims arising from the fraud,
willful misconduct or gross negligence of such Releasee, or, (z) claims arising
from the usurpation of any corporate opportunity.
(b) On the Effective Date, each holder of a Claim and/or an Interest,
other than as provided in the Plan or Confirmation Order, shall be deemed to
have released unconditionally, and hereby is deemed to release unconditionally
on such date, the Releasees, from any and all rights,
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claims, causes of action, obligations, suits, judgments, damages and liabilities
whatsoever which any such holder may be entitled to assert, whether known or
unknown, foreseen or unforeseen, existing or hereafter arising, in law, equity
or otherwise, based in whole or in part upon any act or omission, transaction,
event or other occurrence taking place on or before the Effective Date in any
way relating to the Debtor and/or the Chapter 11 Case and/or the Plan.
(c) If and to the extent that the Bankruptcy Court concludes that the
Plan cannot be confirmed with any portion of the foregoing releases, then the
Debtor, with the prior consent of the Bondholder Committee, reserves the right
to amend the Plan so as to give effect as much as possible to the foregoing
releases, or to delete them.
Section 8.03 Indemnification. Notwithstanding any other provisions of
the Plan, the obligations of the Debtor to indemnify its present and former
directors, officers and employees against any obligations, liabilities, costs or
expenses pursuant to the articles of incorporation or bylaws of the Debtor,
applicable state law, specific agreement or any combination of the foregoing
shall not survive the Effective Date and shall be discharged, regardless of
whether indemnification is owed in connection with an event occurring prior to,
upon or subsequent to the Petition Date.
Section 8.04 Conclusion of Chapter 11 Cases, and Dissolution of
Creditors' Committee. Except with respect to any appeal of an order in the
Chapter 11 Case, and any matters related to any proposed modification of the
Plan, on the Effective Date, the Creditors' Committee shall be dissolved and the
members, employees, agents, advisors and representatives (including, without
limitation, attorneys, financial advisors, and other Professionals) of each
thereof shall thereupon be released from and discharged of and from all further
authority, duties, responsibilities and obligations related to, arising from and
in connection with the Chapter 11 Case.
ARTICLE IX
CONDITIONS TO OCCURRENCE OF THE EFFECTIVE DATE
Section 9.01 Conditions to Occurrence of the Effective Date. The
following are conditions precedent to the occurrence of the Effective Date:
(a) The Confirmation Order shall have been entered and become a Final
Order in form and substance satisfactory to the Debtor and the Bondholder
Committee.
(b) The Debtor shall have sufficient Cash to satisfy all Cash
obligations under the Plan due on or as of the Effective Date.
(c) All authorizations, consents and regulatory approvals required, if
any, in connection with the Plan's effectiveness shall have been obtained.
(d) No order of a court shall have been entered and shall remain in
effect restraining the Debtor from consummating the Plan.
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(e) The Debtor and the Bondholder Committee shall each have approved
each of the Plan Documents and such Plan Documents shall have been executed in
accordance with their terms.
Section 9.02 Waiver of Conditions. The Debtor may waive, upon the prior
consent of the Bondholder Committee, one or more of the conditions to the
occurrence of the Effective Date.
ARTICLE X
LEGAL BINDING EFFECT
Section 10.01 Effects of Confirmation. Upon Confirmation, and pursuant
to Section 1141(a) of the Bankruptcy Code, the provisions of the Plan will bind
the Debtor, the Bondholder Committee, the Creditors' Committee, the SubDebt
Committee, all Creditors and Interest holders, including their successors and
assigns, whether or not they accept the Plan. The Claims and Distributions under
the Plan to Creditors are in full and complete settlement of all Claims and
Interests.
ARTICLE XI
ADMINISTRATIVE PROVISIONS
Section 11.01 Retention of Jurisdiction. Notwithstanding entry of the
Confirmation Order, the Bankruptcy Court shall retain jurisdiction as is legally
permissible, including, without limitation, for the following purposes:
(a) to determine (i) any Disputed Claims, Disputed Interests and all
related Claims accruing after the Confirmation Date including rights and
liabilities under contracts giving rise to such Claims, (ii) the validity,
extent, priority and nonavoidability of consensual and nonconsensual liens and
other encumbrances and (iii) preconfirmation tax liability pursuant to Section
505 of the Bankruptcy Code;
(b) to allow, disallow, estimate, liquidate or determine any Claim or
Interest against the Debtor and to enter or enforce any order requiring the
Filing of any such Claim or Interest before a particular date;
(c) to approve all matters related to the assumption, assumption and
assignment, or rejection of any executory contract or unexpired lease of any of
the Debtor pursuant to Section 365 of the Bankruptcy Code and Article VII
herein;
(d) to determine requests for payment of administrative expenses
entitled to priority under Section 507(a)(l) of the Bankruptcy Code, including
compensation of parties entitled thereto;
(e) to resolve controversies and disputes regarding the interpretation
and implementation of this Plan, any disputes relating to whether or not a
timely and proper proof of Claim was Filed or whether a Disallowed Claim or
Disallowed Interest should be reinstated;
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(f) to implement the provisions of this Plan and entry of orders in aid
of confirmation and consummation of this Plan;
(g) to modify the Plan pursuant to Section 1127 of the Bankruptcy Code;
(h) to adjudicate any and all Causes of Action that arose in this
Chapter 11 Case preconfirmation or in connection with the implementation of this
Plan, whether or not pending on the Confirmation Date, including without
limitation, any remands of appeals;
(i) to resolve disputes concerning any reserves with respect to
Disputed Claims, Disputed Interests or the administration thereof;
(j) to resolve any disputes concerning whether a person or entity had
sufficient notice of the Chapter 11 Case, the applicable Claims bar date, the
hearing on the approval of the Disclosure Statement as containing adequate
information, the hearing on the confirmation of this Plan for the purpose of
determining whether a Claim or Interest is discharged hereunder or for any other
purpose;
(k) to determine any and all applications, Claims, Interests, pending
adversary proceedings and contested matters (including, without limitation, any
adversary proceeding or other proceeding to recharacterize agreements or
reclassify Claims or Interests) in this Chapter 11 Case;
(l) to enter and implement such orders as may be appropriate in the
event the Confirmation Order is for any reason stayed, revoked, modified, or
vacated;
(m) to seek the issuance of such orders in aid of execution of the
Plan, to the extent authorized by Section 1142 of the Bankruptcy Code;
(n) to consider any modifications of the Plan, to cure any defect or
omission, or reconcile any inconsistency in any order of the Court, including,
without limitation, the Confirmation Order;
(o) to recover all assets of the Debtor and property of the Estate,
wherever located, including any Causes of Action under Sections 544 through 550
of the Bankruptcy Code;
(p) to hear and resolve matters concerning state, local, and federal
taxes in accordance with Sections 346, 505, and 1146 of the Bankruptcy Code;
(q) to hear any other matter not inconsistent with the Bankruptcy Code;
(r) to resolve any and all disputes or controversies relating to
Distributions to be made, and/or reserves to be established, under this Plan;
including, without limitation, the Distributions to be made by the Indenture
Trustee and the rights of such Indenture Trustee;
(s) to enter a final decree closing the Chapter 11 Case;
Second Amended, Modified and Restated Plan of Liquidation proposed
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(t) to resolve issues regarding the administration of Distributions to
holders of the TEC Senior Secured Notes; and
(u) to approve settlements relating to (t) above.
Section 11.02 Cram Down. If all of the applicable requirements for
confirmation of the Plan are met as set forth in Section 1129(a) of the
Bankruptcy Code except subsection (8) thereof, the Debtor, with the prior
consent of the Bondholder Committee, may request the Court to confirm the Plan
pursuant to Section 1129(b) of the Bankruptcy Code, notwithstanding the
requirements of such subsection (8), on the basis that the Plan is fair and
equitable and does not discriminate unfairly with respect to any Impaired Class
that does not vote to accept this Plan as described in the Disclosure Statement.
Section 11.03 Modification of the Plan. The Debtor reserves the right,
with the consent of the Bondholder Committee, to alter, amend or modify the Plan
prior to the entry of the Confirmation Order. After the entry of the
Confirmation Order, the Debtor, with the prior consent of the Bondholder
Committee, may, upon order of the Bankruptcy Court and with the prior consent of
the Bondholder Committee, alter, amend or modify the Plan in accordance with
Section 1127(b) of the Bankruptcy Code, or remedy any defect or omission or
reconcile any inconsistency in the Plan in such manner as may be necessary to
carry out the purpose and intent of the Plan.
Section 11.04 Exemption from Certain Transfer Taxes. Pursuant to
Section 1146(c) of the Bankruptcy Code: (a) the issuance, transfer or exchange
of any securities, instruments or documents; (b) the creation of any other lien,
mortgage, deed of trust or other security interest; (c) the making or assignment
of any lease or sublease or the making or delivery of any deed or other
instrument of transfer under, pursuant to, in furtherance of, or in connection
with, the Plan, including, without limitation, any deeds, bills of sale or
assignments executed in connection with any of the transactions contemplated
under the Plan or the revesting, transfer or sale of any real or personal
property of the Debtor pursuant to, in implementation of, or as contemplated in
the Plan, and (d) the issuance, renewal, modification or securing of
indebtedness by such means, and the making, delivery or recording of any deed or
other instrument of transfer under, in furtherance of, or in connection with,
the Plan, including, without limitation, the Confirmation Order, shall not be
subject to any document recording tax, stamp tax, conveyance fee or other
similar tax, mortgage tax, real estate transfer tax, mortgage recording tax or
other similar tax or governmental assessment. Consistent with the foregoing,
each recorder of deeds or similar official for any county, city or governmental
unit in which any instrument hereunder is to be recorded shall, pursuant to the
Confirmation Order, be ordered and directed to accept such instrument, without
requiring the payment of any filing fees, documentary stamp tax, deed stamps,
stamp tax, transfer tax, intangible tax or similar tax.
Section 11.05 Withdrawal or Revocation of the Plan. The Debtor, with
the prior consent of the Bondholder Committee, reserves the right to revoke or
withdraw the Plan prior to the Confirmation Date. If the Plan is revoked or
withdrawn, or if the Confirmation Date does not occur, the Plan shall have no
force and effect.
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Section 11.06 Successors and Assigns. The rights, benefits and
obligations of any Entity named or referred to in the Plan shall be binding on,
and shall inure to the benefit of, the heirs, executors, administrators,
successors and/or assigns of such Entity.
Section 11.07 Governing Law. Except to the extent that the Bankruptcy
Code or Bankruptcy Rules are applicable, the rights and obligations arising
under this Plan shall be governed by and construed and enforced in accordance
with the laws of the State of Texas.
Section 11.08 Notices. All notices, requests or demands for payments
provided for in this Plan shall be in writing and shall be deemed to have been
received, by mail, addressed to:
TransAmerican Energy Corporation
1300 North Sam Houston Parkway East
Houston, Texas 77032-2949
Attn: Simon Ward
with copies to:
Gardere & Wynne, L.L.P.
3000 Thanksgiving Tower
1601 Elm Street
Dallas, Texas 75201
Attn: Deirdre B. Ruckman, Esq.
and:
TransAmerican Energy Corporation Bondholder Committee
c/o Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
Attn: Michael J. Sage, Esq.
Any of the above may, from time to time, change its address for future notices
and other communications hereunder by Filing a notice of the change of address
with the Bankruptcy Court. Any and all notices given under this Plan shall be
effective when received.
Section 11.09 Severability. Except as to terms which would frustrate
the overall purposes of this Plan, should any provision in this Plan be
determined to be unenforceable, such determination shall in no way limit or
affect the enforceability and operative effect of any or all other provisions of
this Plan.
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Section 11.10 Interpretation, Rules of Construction, Computation of
Time, and Choice of Law.
(a) The provisions of the Plan shall control over any descriptions
thereof contained in the Disclosure Statement.
(b) Any term used in the Plan that is not defined in the Plan, either
in Article II (Definitions) or elsewhere, but that is used in the Bankruptcy
Code or the Bankruptcy Rules shall have the meaning assigned to that term in
(and shall be construed in accordance with the rules of construction under) the
Bankruptcy Code or the Bankruptcy Rules. Without limiting the foregoing, the
rules of construction set forth in Section 102 of the Bankruptcy Code shall
apply to the Plan, unless superseded herein.
(c) Unless specified otherwise in a particular reference, all
references in the Plan to Articles, Sections and Exhibits are references to
Articles, Sections and Exhibits of or to the Plan.
(d) Any reference in the Plan to a contract, document, instrument,
release, bylaw, certificate, indenture or other agreement being in a particular
form or on particular terms and conditions means that such document shall be
substantially in such form or substantially on such terms and conditions.
(e) Any reference in the Plan to an existing document or Exhibit means
such document or Exhibit as it may have been amended, restated, modified or
supplemented as of the Effective Date without limitation to the provisions set
forth in Article VI of this Plan.
(f) Captions and headings to Articles and Sections in the Plan are
inserted for convenience of reference only and shall neither constitute a part
of the Plan nor in any way affect the interpretation of any provisions hereof.
(g) In computing any period of time prescribed or allowed by the Plan,
the provisions of Bankruptcy Rule 9006(a) shall apply.
(h) All exhibits, annexes and schedules to the Plan are incorporated
into the Plan, and shall be deemed to be included in the Plan, regardless of
when Filed.
(i) Subject to the provisions of any contract, certificate, bylaws,
instrument, release, indenture or other agreement or document entered into in
connection with the Plan, the rights and obligations arising under the Plan
shall be governed by, and construed and enforced in accordance with, federal
law, including the Bankruptcy Code and Bankruptcy Rules.
(j) Where applicable, references to the singular shall include the
plural, and vice-versa.
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Section 11.11 No Admissions. Notwithstanding anything herein to the
contrary, nothing contained in the Plan shall be deemed as an admission by any
Entity with respect to any matter set forth herein.
Section 11.12 Limitation of Liability. None of the Debtor, the
Creditors' Committee, the Entities serving on the Bondholder Committee at any
time during the Chapter 11 Case, the holders of the Bondholder DIP Secured
Claims, Firstar, nor any of their respective officers, directors, employees,
members, agents, advisors, affiliates, underwriters or investment bankers, nor
any other professional persons employed by any of them (collectively, the
"Exculpated Persons"), shall have or incur any liability to any Entity for any
act taken or omission made in good faith in connection with or related to
formulating, negotiating, implementing, confirming or consummating the Plan, the
Disclosure Statement or any Plan Document. The Exculpated Persons shall have no
liability to the Debtor, the Administrative Designee, any holder of a Claim, any
holder of an Interest, any other party in interest in the Chapter 11 Case or any
other Entity for actions taken or not taken under the Plan, in connection
herewith or with respect hereto, or arising out of their administration of the
Plan, or the property to be distributed under the Plan, in good faith,
including, without limitation, failure to obtain Confirmation or to satisfy any
condition or conditions, or refusal to waive any condition or conditions, to the
occurrence of the Effective Date, and in all respects such Exculpated Persons
shall be entitled to rely upon the advice of counsel with respect to their
duties and responsibilities under the Plan.
Second Amended, Modified and Restated Plan of Liquidation proposed
by TransAmerican Energy Corporation Page 21
<PAGE> 27
Respectfully submitted,
TransAmerican Energy Corporation
By: /s/ ED DONAHUE
--------------------------------------------
Name: Ed Donahue
Title: Vice President
Second Amended, Modified and Restated Plan of Liquidation proposed
by TransAmerican Energy Corporation Page 22
