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EXHIBIT 2.2
[STAMP]
UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
In re: ) Chapter 11
)
) Case No. 99-21551-C-11
TRANSAMERICAN ENERGY )
CORPORATION, )
)
)
Debtor. )
ORDER CONFIRMING DEBTOR'S SECOND
AMENDED, MODIFIED AND RESTATED PLAN OF LIQUIDATION
TransAmerican Energy Corporation, as debtor and debtor-in-possession
("TEC" or the "DEBTOR"), having Filed* the Debtor's Second Amended Plan of
Liquidation dated July 18, 2000 (the "SECOND AMENDED PLAN") in accordance with
Section 1121 of the Bankruptcy Code; and the Debtor having Filed its First
Amended Joint Disclosure Statement Pursuant to Section 1125 of the Bankruptcy
Code for the Second Amended Plan of Liquidation of the Debtor, the Second
Amended Plan of Liquidation of TransAmerican Refining Corporation ("TARC"), and
the Seconded Amended Plan of Reorganization of TransTexas Gas Corporation
("TRANSTEXAS"), and together with TARC and the Debtor, the "DEBTORS"), each
dated September 29, 1999 (as amended, the "DISCLOSURE STATEMENT"); and a hearing
having been held before this Court on September 29, 1999, to consider the
adequacy of the Disclosure Statement; and the Court, by Order dated September
29, 1999, having approved the Disclosure Statement (the "DISCLOSURE STATEMENT
ORDER") and by Order dated October 1, 1999, having approved, among other things,
the procedures for the solicitation and tabulation of votes to accept or reject
the Second Amended Plan (the "SOLICITATION ORDER"); the Disclosure Statement
(with a copy of the Second Amended Plan annexed thereto as Appendix 3), the
Disclosure Statement Order, the Solicitation Order, a ballot or master ballot
and related materials (collectively,
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* Each term that is capitalized herein and not otherwise defined herein shall
have the meaning ascribed to such term in the Plan (as defined herein) and,
if such term is not defined in the Plan, the Disclosure Statement (as
defined herein).
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the "SOLICITATION MATERIALS") having been transmitted to all known holders of
Claims and/or Interests entitled to vote on the Second Amended Plan in
accordance with the Disclosure Statement Order and the Solicitation Order; and
the Second Amended Plan having been transmitted to each holder of a Claim
and/or an Interest not entitled to vote on the Second Amended Plan; and the
solicitation of acceptances from holders of Claims and/or Interests having been
made within the time and in the manner required by the Disclosure Statement
Order and the Solicitation Order; and those certain affidavits of service
having been Filed with respect to the mailing of the Solicitation Materials to
those holders of Claims and/or Interests entitled to vote on the Second Amended
Plan; and that certain affidavit of service having been Filed with respect to
the mailing of the Solicitation Materials to those holders of Claims and/or
Interests not entitled to vote on the Second Amended Plan; and objections to
confirmation of the Second Amended Plan having been Filed by various parties in
interest; (the Second Amended Plan, together with any amendments that may be
made at the Confirmation Hearing, is hereinafter referred to as the "PLAN");
and the Court having reviewed, among other things, the Plan, the Disclosure
Statement, the certification of Acceptances and Rejections of the Plan (the
"Ballot Certification"), and all objections to confirmation of the Plan not
previously withdrawn; and upon the record of the Confirmation Hearing, and
after due deliberation thereon and good cause appearing therefor, the Court
makes the following findings of fact and conclusions of law:*
FINDINGS OF FACT AND CONCLUSIONS OF LAW:
A. Jurisdiction. This Court has jurisdiction over the Debtor and the
subject matter of the Confirmation Hearing pursuant to 28 U.S.C. Sections 157(b)
and 1334(a). The Confirmation
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* The following lettered paragraphs shall constitute this Court's
findings of fact and conclusions of law made at the Confirmation
Hearing pursuant to Bankruptcy Rule 7052, which is made applicable to
this proceeding by Bankruptcy Rule 9014. To the extent any finding of
fact shall be determined to be a conclusion of law, it shall be so
deemed, and vice-versa.
TRANSAMERICAN ENERGY CORPORATION'S CONFIRMATION ORDER Page 2
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Hearing is a core proceeding pursuant to 28 U.S.C. Section 157(b)(l) and
(2)(L). Venue of the Chapter 11 Case in this district is proper pursuant to 28
U.S.C. Sections 1408 and 1409.
B. Solicitation. In accordance with the Disclosure Statement Order and
the Solicitation Order and as evidenced by the Ballot Certification, the
Debtor caused (1) the Solicitation Materials to have been distributed to all
known holders of Claims and/or Interests entitled to vote on the Second Amended
Plan, (2) the Second Amended Plan to have been distributed to each holder of a
Claim and/or an Interest not entitled to vote on the Second Amended Plan and (3)
notice of the Confirmation Hearing and the deadline for voting on Filing
objections to the Second Amended Plan have been duly given. Such actions
constitute due, sufficient and adequate notice to all known holders of Claims
and Interests of the Plan, the Confirmation Hearing and the deadlines for
submitting votes on, and Filing objections to the confirmation of, the Plan.
C. Procedures for Voting. As evidenced by the Ballot Certification, the
procedures by which ballots for voting on the Plan were received and tabulated
were fair, properly conducted and in accordance with the Bankruptcy Code, the
Bankruptcy Rules, the local rules of this Court and the Disclosure Statement
Order.
D. Satisfaction of Confirmation Requirements. Section 1129(a)(1) of
the Bankruptcy Code is satisfied because the Plan complies with all the
applicable provisions of the Bankruptcy Code, including the provisions of
Sections 1122 and 1123 of the Bankruptcy Code:
(1) Proper Classification of Claims and Interests. Section
1122(a) and 1123(a)(1) of the Bankruptcy Code are satisfied because the
Plan properly designates separate Classes of Claims and Interests, each
of which contains only Claims or Interests that are substantially
similar to the other Claims or Interests within that Class.
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(2) Specification of Unimpaired Classes. Section 1123(a)(2)
of the Bankruptcy Code is satisfied because the Plan properly
designates Classes of Claims and Interests as impaired or unimpaired.
(3) Specification of Treatment of Impaired Classes. Section
1123(a)(3) of the Bankruptcy Code is satisfied because the Plan
specifies the treatment of each Class of Claims and Interests that is
impaired under the Plan, to the extent that the Claims or Interests
within such Class are Allowed Claims or Allowed Interests,
respectively.
(4) Equal Treatment Within Classes. Section 1123(a)(4) of the
Bankruptcy Code is satisfied because the Plan provides the same
treatment for each Allowed Claim or Allowed Interest within a
particular Class or the holder of a particular Allowed Claim or Allowed
Interest has agreed to a less favorable treatment of such Claim or
Interest.
(5) Implementation of the Plan. Section 1123(a)(5) of the
Bankruptcy Code is satisfied because the Plan provides adequate means
for its implementation.
(6) Charter Provisions. Section 1123(a)(6) of the Bankruptcy
Code is inapplicable to the Debtor's Chapter 11 case because the Plan
provides for the dissolution of the Debtor on the Effective Date.
(7) Wind-Down of the Estate. Section 1123(a)(7) of the
Bankruptcy Code is satisfied because the Plan provides for the manner
by which the Administrative Designee will wind-down the Debtor's
Estate. This is consistent with the interests of holders of Claims and
Interests and with public policy.
E. Bankruptcy Rule 3016(a). Rule 3016(a) of the Bankruptcy Rules is
satisfied because the Plan is dated and identifies the entity submitting it.
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F. Debtor's Compliance with Applicable Provisions of the Bankruptcy
Code Section 1129(a)(2) of the Bankruptcy Code is satisfied because the Debtor
has complied with all applicable provisions of the Bankruptcy Code.
G. Plan Proposed in Good Faith. Section 1129(a)(3) of the Bankruptcy
Code is satisfied because the Plan was proposed in good faith and not by any
means forbidden by law. In determining that the Plan has been proposed in good
faith, the Court has examined the totality of circumstances surrounding the
filing of the Chapter 11 Case and the formulation of the Plan. The Debtor's
objective in proposing the Plan was to effect a prompt disposition of the
Debtor's assets in a manner designed to maximize recoveries to all Creditors and
to utilize the benefits of Chapter 11 to effectuate Distributions to Creditors
in the strict order of their legal entitlement to receive those Distributions,
or as otherwise agreed among the Creditors. Furthermore, the Plan is the product
of months of extensive, arms' length negotiations among the Debtor, the
Bondholder Committee and the Creditors' Committee and their respective counsel
and financial advisors.
H. Payment for Services and Expenses. Section 1129(a)(4) of the
Bankruptcy Code is satisfied because, to the extent required by that Section,
any payment made or to be made by the Debtor for services or for costs and
expenses in, or in connection with, the Chapter 11 Case, or in connection with
the Plan and incident to the Chapter 11 Case, has been approved by, or is
subject to the approval of, the Bankruptcy Court as reasonable.
I. Administrative Designee/Insider. Section 1129(a)(5) of the
Bankruptcy Code is satisfied because to the extent possible, the Debtor has
disclosed the identity of the Administrative Designee, the person who will be
authorized 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. Ed
Donahue, Vice President and Chief Financial Officer of TransTexas, shall serve
as Administrative
TRANSAMERICAN ENERGY CORPORATION'S CONFIRMATION ORDER Page 5
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Designee; and the appointment of such individual is consistent with the
interests of the holders of Claims and Interests and with public policy.
J. No Rate Changes. Section 1129(a)(6) of the Bankruptcy Code is
inapplicable to the Debtor's Chapter 11 Case because the Plan provides for the
dissolution of the Debtor on the Effective Date.
K. Best Interests of Creditors. Section 1129(a)(7) of the Bankruptcy
Code is satisfied. Evidence proffered or adduced at the Confirmation Hearing,
including the testimony of Loretta Cross of PricewaterhouseCoopers, L.L.P., the
Debtor's financial advisors, and David Heather of The Scotia Group, Inc., the
Debtor's valuation expert (i) is persuasive and credible, (ii) has not been
controverted by other evidence, and (iii) has established that each holder of an
impaired Claim or Interest either (x) has accepted the Plan or (y) will receive
or retain under the Plan, on account of such Claim or Interest, property of a
value, as of the Effective Date, that is not less than the amount that such
holder would so receive or retain if the Debtor was liquidated under Chapter 7
of the Bankruptcy Code. While the liquidation of the Debtor's assets in the
context of a hypothetical Chapter 7 liquidation rather than through the Plan
would generate similar values for Distribution to creditors, the cost to
generate such value in Chapter 7 would likely be greater and Distributions
would likely be delayed.
L. Acceptance by Certain Classes. Section 1129(a)(8)(A) of the
Bankruptcy Code is satisfied with respect to Classes 1 and 2, Classes of Claims
which are impaired by the Plan, because such Classes have accepted the Plan
pursuant to Section 1126(c) of the Bankruptcy Code.
M. Best Interests of Non-Accepting Classes. Section 1129(a)(8) of the
Bankruptcy Code has not been satisfied with respect to Class 3 because this
Classes has voted to reject the Plan. The Plan satisfies the requirements of
Section 1129(b) of the Bankruptcy Code and thus may be confirmed without
compliance with Section 1129(a)(8) of the Bankruptcy Code with
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respect to Class 3. That is, the Plan (i) does not discriminate unfairly
against this Class and (ii) is fair and equitable with respect to this Class.
Section 1129(a)(8) has not been satisfied with respect to Class 3 because this
Class is deemed not to have accepted the Plan pursuant to Section 1126(g) of the
Bankruptcy Code. Under the Plan, no holder of an Interest that is junior to the
Claims in Classes 1 and 2 will receive or retain any property under the Plan on
account of such junior Claim or Interest. The holders of Class 3 Interests would
not be entitled to receive any property of value if the Debtor were liquidated
under Chapter 7 of the Bankruptcy Code. The Plan therefore satisfies the
requirements of Section 1129(b) of the Bankruptcy Code and thus may be confirmed
without compliance with Section 1129(a)(8) of the Bankruptcy Code with respect
to Class 3. That is, the Plan does not discriminate unfairly against Class 3 and
is fair and equitable with respect to this Class.
TRANSAMERICAN ENERGY CORPORATION'S CONFIRMATION ORDER Page 7
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N. Treatment of Priority Administrative Expense Claims. Section
1129(a)(9)(A) of the Bankruptcy Code is satisfied because the Plan provides that
(i) there are no Claims of a kind specified in Section 507(a)(2) of the
Bankruptcy Code and (ii)(a) Administrative Expense Claims arising from
liabilities incurred in the ordinary course of the Debtors' businesses shall be
assumed and paid pursuant to the terms and conditions of the particular
transactions giving rise to such Administrative Expense Claims and (b)
Administrative Expense Claims of Professionals shall be paid upon submission of
applications for compensation and reimbursement of expenses and allowance of the
amounts sought in such applications by the Bankruptcy Court.
O. Treatment of Other Priority Claims. Section 1129(a)(9)(B) of the
Bankruptcy Code is satisfied because the Plan provides that each holder of an
Allowed Administrative Expense shall be entitled to receive the Allowed amount
of such Claim in full in Cash on or as soon as practicable after the later of
(i) the Effective Date and (ii) the date that such Claim becomes an Allowed
Administrative Expense.
P. Treatment of Priority Tax Claims. Section 1129(a)(9)(C) of the
Bankruptcy Code is inapplicable to the Debtor's Chapter 11 Case because there
are no Allowed priority tax claims.
Q. Acceptance of at Least One Impaired Class. Section 1129(a)(10) of
the Bankruptcy Code is satisfied because at least one Class of Claims that is
impaired under the Plan has accepted the Plan, determined without including any
acceptance by an insider.
R. Feasibility. Section 1129(a)(11) of the Bankruptcy Code is satisfied
because the Plan is feasible. The Plan is a liquidating plan which adequately
provides the means for liquidating and distributing the assets of the Estate to
the holders of Allowed Claims.
TRANSAMERICAN ENERGY CORPORATION'S CONFIRMATION ORDER Page 8
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S. Payment of Certain Fees. Section 1129(a)(12) of the Bankruptcy Code
is satisfied because pursuant to Section 6.06 of the Plan, all fees payable
under 28 U.S.C. Section 1930 shall be paid on or before the Effective Date.
T. Continuation of Retirement Benefits. Section 1129(a)(13) of the
Bankruptcy Code is inapplicable to the Chapter 11 Case because the Debtor is
liquidating under Chapter 11 and dissolving under Delaware State Law on the
Effective Date.
U. Only One Plan. The Plan is the only plan of liquidation of the
Debtor pending before this Court or any other court.
V. No Tax Avoidance. The primary purpose of the Plan is not the
avoidance of taxes or the application of Section 5 of the Securities Act of
1933, as amended, notwithstanding that the liquidation of the Debtor's assets
through Chapter 11 provides valuable benefits to the Estate, including among
other things, the avoidance of transfer taxes and securities registration
requirements.
W. Liquidation. While liquidation of the Debtor's Assets in the context
of a hypothetical Chapter 7 Liquidation rather than under the Plan would
generate similar values for Distribution to creditors, the cost to generate such
value in Chapter 7 would likely be greater than under the Plan and Distributions
would likely be delayed.
X. Executory Contracts. On the Effective Date, pursuant to Section 365
of the Bankruptcy Code, all executory contracts or unexpired leases shall be
rejected by the Debtor.
Y. Releases and Indemnification. The provisions of the Plan and the
provisions in the Confirmation Order dealing with releases and indemnification,
specifically Sections 8.02, 8.03, and 11.12, are in the best interest of the
Debtor and all of the holders of Claims and Interests receiving a Distribution
pursuant to the Plan.
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Z. Modification to Plan. The modifications to the Plan set forth in the
Debtor's Second Amended, Modified and Restated Plan of Liquidation dated
September 29, 1999 and blacklined against the Debtor's Second Amended Plan of
Liquidation and Filed by the Debtor on July 18, 2000, and the notice of
technical modifications, Filed by the Debtor on July 18, 2000, as amended or
modified prior to the entry of this Confirmation Order, complied in all respects
with Section 1127(a) of the Bankruptcy Code and, in accordance with Bankruptcy
Rule 3019, do not adversely change the treatment of the Claim of any Creditor or
the Interest of any equity security holder who has not accepted in writing such
amendments. The notice of such amendments was due and adequate under the
circumstances of the Chapter 11 Case and such modifications, do not require
additional disclosure under Section 1125 of the Bankruptcy Code or the
resolicitation of acceptances or rejections under Section 1126 of the Bankruptcy
Code, nor do they require, that the holders of Claims or Interests be afforded
an opportunity to change previously cast acceptances or rejections of the Plan.
AA. Good Faith Solicitation. Based upon the record before the Court,
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, and any of their respective officers, directors,
partners, employees, members, agents, advisors, affiliates, underwriters or
investment bankers, and any other professional persons employed by any of them
(the "EXCULPATED PERSONS") have acted in good faith in connection with and
relating to the formulation, negotiation, solicitation, implementation,
confirmation and consummation of the Plan, the Disclosure Statement and any Plan
Documents (as defined below), and have acted in compliance with the applicable
provisions of the Bankruptcy Code and are entitled to the protections afforded
by Section 1125(e) of the Bankruptcy Code and the exculpatory and injunctive
provisions in Article VIII of the Plan (to the extent provided therein). The
Exculpated Persons shall have no liability to
TRANSAMERICAN ENERGY CORPORATION'S CONFIRMATION ORDER Page 10
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the Debtor, any holder of a Claim or 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 therewith or with respect thereto, or arising out of their
administration of the Plan or the property to be distributed under the Plan,
including, without limitation, failure to satisfy any condition or conditions,
or refusal to waive any condition or conditions, to the occurrence of the
Effective Date.
BB. No Discharge. The Plan provides for the 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 receive
no discharge of any Claims.
CC. Retention of Jurisdiction. The Court may property retain
jurisdiction over the matters set forth in Article XI of the Plan.
FINDING THAT THE PLAN IS CONFIRMABLE BASED UPON, AMONG OTHER THINGS,
ALL OF THE ABOVE-STATED FINDINGS OF FACT AND CONCLUSIONS OF LAW, AND GOOD CAUSE
APPEARING THEREFOR, THE COURT HEREBY ORDERS THAT:
1. Confirmation. The Plan and each of its provisions is hereby
confirmed pursuant to Section 1129 of the Bankruptcy Code.
2. Provisions of Plan and Order are Nonseverable and Mutually
Dependent. The provisions of the Plan and this Confirmation Order, including the
findings of facts and conclusions of law set forth herein, are nonseverable and
mutually dependent.
3. Objections Overruled. All objections and responses to, and
statements and comments in response to, including, but not limited to, High
River Limited Partnership's objections to confirmation filed on November 4, 1999
(Docket No. 1402), December 3, 1999 (Docket No. 1755) and January 24, 2000
(Docket No. 2009), the Plan and/or the Second Amended Plan, other
TRANSAMERICAN ENERGY CORPORATION'S CONFIRMATION ORDER Page 11
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than those withdrawn with prejudice in their entirety prior to, or on the record
at, the Confirmation Hearing, are hereby expressly overruled.
4. General Authorizations; Plan Modifications. The Debtor and its
respective directors, officers, attorneys and agents, including the
Administrative Designee, are hereby authorized, empowered and directed, subject
to the conditions set forth in the Plan and the right to modify the Plan in
accordance with Section 11.03 of the Plan, to carry out the provisions of the
Plan. The Debtor and all necessary parties are hereby authorized, empowered and
directed, subject to the conditions set forth in the Plan and the right to
modify the Plan in accordance with Section 11.03 of the Plan, to enter into,
execute, deliver, file and/or perform the terms of the Plan Documents and any
other agreements, instruments and documents related, and any amendments,
supplements or modifications to such Plan Documents as may be necessary or
appropriate, and to take such other steps and perform such other acts as may be
necessary or appropriate to implement and effectuate the Plan, the Plan
Documents or this Confirmation Order, and to satisfy all other conditions
precedent to the implementation and effectiveness of the Plan and to consummate
the Plan.
5. Plan Documents Approved. The form, terms and provisions of the
Plan Documents are hereby approved. The Debtor is hereby authorized, to amend,
supplement or modify the Plan Documents, with the consent of the Bondholder
Committee, and thereafter, pursuant to the terms of such Plan Documents. Each
of the Plan Documents shall constitute legal, valid, binding and authorized
obligations of the respective parties thereto, enforceable in accordance with
its terms (except as enforceability may be limited by any bankruptcy or
insolvency proceeding filed by any party thereto subsequent to the date of the
execution of such document).
6. No Discharge of Claims. Pursuant to Section 1141(d)(3) of the
Bankruptcy Code, the Debtor shall not receive a discharge of any Claims that
arose before the date of entry of
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this Confirmation Order because the Plan provides for the liquidation of all of
the Debtor's assets and the discontinuance of its business.
7. Administrative Designee. Ed Donahue, Vice President and Chief
Financial Officer of TransTexas, as the Administrative Designee under the Plan,
shall be, and hereby is, authorized 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.
8. Authorizations Under State Law. On the Effective Date, the Debtor
shall be dissolved without any further action by the stockholders or directors
of the Debtor. In that connection, the Administrative Designee shall reasonably
promptly prepare and file all corporate resolutions, statements, notices, tax
returns and other documents necessary to accomplish such dissolution. Consistent
with the foregoing, each official for any county, city or governmental unit in
which any instrument hereunder is to be filed is hereby ordered and directed,
pursuant to Sections 105 and 1142 of the Bankruptcy Code, to accept such
instrument and to take whatever actions may be necessary to effectuate the
immediate dissolution of the Debtor, notwithstanding any otherwise applicable
nonbankruptcy law requirements.
9. Binding Effect. The provisions of the Plan (except as set forth
below) and this Confirmation Order shall be and hereby are binding on, and
enforceable by and against, the Debtor, the Bondholder Committee, the Creditors'
Committee, each Creditor, each holder of an Interest and each other party in
interest in the Chapter 11 Case, including their successors and assigns, whether
or not they accept the Plan.
10. Disbursements. On the Effective Date, the Administrative Designee
is hereby authorized and directed to make the Distributions to holders of
Allowed Claims as provided in Articles V and VI of the Plan, subject to the
terms and conditions of Sections 6.02 of the Plan. For the purposes of
Distributions to the holders of Allowed TEC Senior Secured Note Claims, Firstar
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shall be, and hereby is, 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, for further Distribution to the TEC Bondholders pursuant
to the terms of the TEC Senior Secured Notes Indenture and the Plan. Firstar
shall make such Distribution as promptly as practicable after the Effective
Date. Except as otherwise provided herein or in 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 under the Plan. To the
extent applicable, any holder of a TEC Senior Secured Note Claim that fails to
(i) surrender the debt instrument evidencing its Claim (each, a "TEC Debt
Instrument") or (ii) execute and deliver an affidavit of loss and/or indemnity
reasonably satisfactory to Firstar before six months following the Effective
Date, shall be deemed to have forfeited all rights and Claims, and may not
participate in any Distribution under the Plan. Firstar is hereby authorized and
directed, in accordance with the terms of the TEC Senior Secured Note Indenture,
to redistribute to the holders of Allowed TEC Senior Secured Notes Claims, as
soon as practicable, all unclaimed Distributions, including the Distributions
that would have otherwise been distributed to each TEC Bondholder who holds and
does not timely surrender a TEC Debt Instrument in accordance with this
paragraph 10.
11. Vesting. Pursuant to Section 5.01 of the Plan, on the Effective
Date, 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 (if any) of the Debtor's right,
title and interest in (A) the TransTexas Senior Secured Note and all related
rights, (B) the TARC Senior Secured Note and all related rights, (C) the
TransTexas/TEC Note and all related rights, (D) the TCR Secured Note and all
related rights, (E) the TARC Common Stock and (F) the TransTexas Common Stock,
shall vest
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in Firstar on behalf of the holders of Class 1 Claims (the TEC Senior Secured
Note Claims). On the Effective Date, the transfers of assets by the
Administrative Designee, contemplated by the Plan or this Order, (a) shall be
the legal, valid and effective transfers of property, (b) vest or shall vest in
the transferee good title to such property free and clear of all Claims and
Liens, except as otherwise provided for in the Plan or this Order, (c) do not
and shall not constitute fraudulent conveyances under any applicable law, and
(d) do not and shall not subject Firstar, the Administrative Designee, or the
property so transferred to any liability by reason of such transfer under
applicable law or any theory of law, including, without limitation, any theory
of successor or transferee liability.
12. TCR Holding Corporation/Orion Settlement. In furtherance of the
Order Granting Motion for Authority to Enter into Settlement Agreement of this
Court, dated May 25, 2000, (i) Firstar is hereby granted a default judgment and
a deficiency judgment against TCR Holding Corporation ("TCR") in the amount of
$43 Million in Adversary Proceeding No. 99-2226-C pending in this Court (the
"Adversary Proceeding"), (ii) no party other than TCR shall have any liability
to Firstar or any other party in respect of such default judgment and/or
deficiency judgment, (iii) all pleadings filed in the Adversary Proceeding by
Firstar and TCR are hereby deemed withdrawn, with prejudice, and (iv) Orion
Refining Corporation ("Orion") and Firstar shall take all actions reasonably
necessary to cause the issuance of the shares of common stock in Orion that
were pledged pursuant to that certain Security and Pledge Agreement by TCR in
favor of TEC, dated as of December 15, 1998 (the "Pledged Stock"), to be issued
and distributed to the TEC Bondholders in accordance with Section 6.02 of the
Plan as soon as is practicable after the Confirmation Date. Such issuance and
distribution of the Pledged Stock shall not affect any of the rights of the TEC
Bondholders with respect to such Pledged Stock under any agreements or
instruments relating thereto.
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13. Fees of Counsel to Firstar. Without further order of this Court,
and in furtherance of that certain order dated December 27, 1999, Firstar is
hereby authorized and directed to pay, or cause to be paid, in Cash on the
Effective Date, the reasonable unpaid attorney fees and expenses of Firstar from
the reserve (the "ATTORNEY RESERVES") heretofore deposited into the account of
First Union National bank ("FIRST UNION") pursuant to Section 4.22 of the Trust
Indenture, dated as of December 31, 1997, between First Union, as trustee, and
TARC, as issuer. Any remaining amounts in the Attorney Reserves after such fees
and expenses are paid shall be distributed to the TEC Bondholders as soon as
practicable pursuant to the terms of the TEC Senior Secured Note Indenture.
14. Professional Compensation. Any Professional seeking an allowance of
final compensation or reimbursement of expenses for professional services
rendered to the Debtor or the Creditors' Committee or in relation to the Chapter
11 Case, pursuant to Sections 327, 328, 330, 331, 503(b) or 1103 of the
Bankruptcy Code, shall File an application for allowance of final compensation
for services rendered through and including the Effective Date and reimbursement
of related expenses and serve the same on the Debtor, the Bondholder Committee
and the Creditors' Committee, in accordance with Section 3.01 of the Plan, and
the United States Trustee, in care of Diane Livingston, on or before September
15, 2000]. Unless otherwise ordered by the Court, objections to applications of
Professionals for compensation or reimbursement of expenses in compliance with
all applicable rules, must be Filed and served on the Debtor, the Bondholder
Committee, and the Creditors' Committee in accordance with Section 3.01 of the
Plan and the Office of the United States Trustee, in the manner provided above,
and the Professionals to whose fee application the objections are addressed.
Notwithstanding anything contained in this Confirmation Order or the Plan,
Firstar shall not be required to File an application for allowance of final
TRANSAMERICAN ENERGY CORPORATION'S CONFIRMATION ORDER Page 16
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compensation for services rendered and reimbursement of related expenses
incurred through and including the Effective Date.
15. Implementation of the Plan. Pursuant to Section 1142(b) of the
Bankruptcy Code, the intended parties to the Plan Documents, contemplated
thereby or to be executed pursuant to the Plan, subject to the satisfaction or
due waiver of each of the conditions precedent to each of such Plan Documents
and except as otherwise contemplated by Section 9.01 of the Plan, are hereby
directed to execute and deliver the Plan Documents and to take such other
actions as shall be necessary to permit the Plan to take effect and be
consummated. The Debtor shall have the right, to the fullest extent permitted
under Section 1142 of the Bankruptcy Code, to apply to this Court for an order
(a) modifying the effect of any otherwise applicable non-bankruptcy law or (b)
directing any Entity to execute and deliver any instrument or to perform any
other act necessary to effectuate the Plan, subject to, and as contemplated by,
Section 9.01 of the Plan.
16. Distribution Record Date. The Distribution Record Date shall be
5:00 p.m., Central Standard Time, August 1, 2000.
17. Executory Contracts and Unexpired Leases. As provided in Article
VII of the Plan, effective as of the Effective Date, all executory contracts and
unexpired leases of Debtor that exist between the Debtor and any Entity shall be
deemed rejected, subject to Section 7.01 of the Plan.
18. Notice of Entry of Confirmation Order. Within ten Business Days
after the Effective Date, the Debtor shall, in accordance with Bankruptcy Rules
2002(f)(7) and (i), mail to all known Creditors, the United States Trustee, the
Indenture Trustees, counsel to all professionals, the Creditors' Committee, a
notice of entry of this Confirmation Order. The foregoing notice shall
constitute due and adequate notice of this Confirmation Order within the meaning
of such Bankruptcy Rules.
TRANSAMERICAN ENERGY CORPORATION'S CONFIRMATION ORDER Page 17
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19. Automatic Stay. The automatic stay in effect with respect to the
Chapter 11 Case pursuant to Section 362(a) of the Bankruptcy Code shall continue
to be in effect until the Effective Date and at that time shall be dissolved and
of no further force or effect, subject to the injunctions provided herein, in
the Plan and in the Bankruptcy Code.
20. TransTexas Plan Appeal. Notwithstanding anything to the contrary
herein, confirmation of the TEC Plan and the TARC Plan are without prejudice to
any party's rights as asserted in the two appeals presently pending before the
United States District Court for the Southern District of Texas, Corpus Christi
Division, in which High River has appealed the Order confirming TransTexas
Second Amended, Modified and Restated Plan of Reorganization dated February 7,
2000, Case No. 00-CV-213 and Misc. No. C-00-35, and High River has appealed the
Stipulation and Order Among the Debtor, Firstar Bank, N.A. and Committees for
Relief From the Automatic Stay entered by the Bankruptcy Court on February 7,
2000, Case No. 00-CV-244.
21. Retention of Jurisdiction. The Court shall retain jurisdiction
over the Chapter 11 Case and related matters as and to the extent provided in
Article XI of the Plan and shall, without in any way limiting the generality of
the foregoing, retain jurisdiction with respect to all matters arising out of,
or related to, the Chapter 11 Case as necessary to ensure that the purpose and
intent of the Plan are carried out and otherwise to the full extent provide
herein.
22. Binding Effect of Plan Documents. The Plan Documents shall
constitute legal, valid, binding and authorized obligations of the respective
parties thereto, enforceable in accordance with their terms (except as
enforceability may be limited by any bankruptcy or insolvency proceeding filed
by any party thereto subsequent to the date of the execution of such document),
and, to the extent applicable, shall create, as of the Effective Date, the
security interests purported to be created thereby.
TRANSAMERICAN ENERGY CORPORATION'S CONFIRMATION ORDER Page 18
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23. Plan Implementation. All actions contemplated by the Plan are
hereby authorized and approved in all respects (subject to the provisions of the
Plan), including, without limitation, all actions contemplated by Article VI of
the Plan. All such actions, and any other actions described in the Plan or this
Confirmation Order that would otherwise require the consent or approval of the
directors or shareholders of the Debtor shall be deemed to have been consented
to or approved and shall be effective under applicable state law and the
Bankruptcy Code, without any requirement of prior or further action by the
shareholders or directors of the Debtor. The appropriate officers and directors
of the Debtor and the Administrative Designee are authorized to execute and
deliver and to perform the terms of the agreements, documents and instruments
contemplated by the Plan and the Disclosure Statement in the name of and on
behalf of the Debtor.
24. Indemnification. Pursuant to Section 8.03 of the Plan, all
obligations of the Debtor to indemnify or hold harmless current or former
officers, directors or employees of the Debtor, and all Claims of such officers,
directors or employees under the articles of incorporation or by-laws of the
Debtor, state law, corporate documents or agreements shall not survive the
Effective Date and shall be discharged regardless of whether indemnification is
owed in connection with an event occurring before, on or after the Petition
Date.
25. Term of Committees. The appointment of each official statutory
committee appointed in the Chapter 11 Case shall terminate on the Effective
Date.
26. Exemption of Certain Taxes. Pursuant to Section 1146(c) of the
Bankruptcy Code, (a) the issuance, transfer or exchange of any securities,
instruments or documents under the Plan or any Plan Document, including, without
limitation, the TransTexas Senior Secured Note, the TARC Senior Secured Note,
the TransTexas/TEC Note, the TCR Secured Note, the TARC Common Stock and the
TransTexas Common Stock, (b) the creation of any other lien, mortgage, deed of
trust or other security interest under or in furtherance of the Plan or any Plan
Document, (c) the making
TRANSAMERICAN ENERGY CORPORATION'S CONFIRMATION ORDER Page 19
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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
or 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 is hereby 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.
27. Releases and Exculpations. On the Effective Date, except as
otherwise provided in this paragraph 27, the provisions of Articles VIII and XI
of the Plan shall be valid, binding and effective in all respects, and are
hereby approved as integral parts of the Plan as fair, equitable, reasonable and
in the best interests of the Debtor, the Estate, Creditors and all other parties
in interests in the Chapter 11 Case, without the requirement of any further
action by any party in interest in the Chapter 11 Case. None of the releases or
exculpation provisions contained in the Plan shall effect, alter or impair: (a)
any obligations of Orion under the Employment Agreement, (b) any obligations
assumed by TCR in respect of the Intercompany Note, (c) any obligations of TCR
and/or Orion under this Agreement or any indemnification or insurance
obligations of TCR and/or Orion to any former officer or director (in such
capacity) of TCR and/or Orion pursuant to the charter
TRANSAMERICAN ENERGY CORPORATION'S CONFIRMATION ORDER Page 20
<PAGE> 21
documents of such entity or otherwise; (d) claims, if any, against Merrill Lynch
Corporation Bond Funds, Inc.-High Income Portfolio in any way relating to TEC,
TARC, Orion, TCR and/or the Orion Refinery; (e) claims, if any, that TEC or
TARC or TransTexas may have as to the litigation styled, TransAmerican Natural
Gas Corporation, Plaintiff v. El Paso Natural Gas Corporation, et al.,
Defendants, in the 101st District Court, Dallas County, Texas,
case no. 96-0005E; (f) any obligations of TEC to any party under the Indenture
governing 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, and that do not relate
to Orion, TCR and/or the Orion Refinery; (g) the TransTexas Plan, and the
TransTexas Confirmation Order, (h) the appeal of High River, and any claims,
rights and/or causes of action of any party relating to (1) High River's appeal
of the Order Confirming Debtor's Second Amended, Modified and Restated Plan of
Reorganization (the "TransTexas Plan"), dated February 7, 2000, MISC. No.
C-00-35, pending in the United States District Court for the Southern District
of Texas-Corpus Christi Division (the "TransTexas Confirmation Order") and (2)
High River's appeal of the Stipulation and Order Among the Debtor, the Indenture
Trustee and the Committees for Relief from the Automatic Stay originally
entered by the Bankruptcy Court on February 7, 2000; (i) the claims that a
releasing party may have against itself; (j) High River's right to assert, and
any party's right to oppose, an administrative claim under Section 503 of the
Bankruptcy Code for substantial contribution against TEC, TARC and/or
TransTexas; (k) the Indenture Trustee's rights, if any, to appoint two (2)
directors to the Board of Directors of Orion; and (j) claims held by Firstar
against any person or entity in any capacity other than its representative
capacity as Indenture Trustee for the TEC Noteholders under the TEC Indenture.
28. References to Plan Documents. The failure to reference or discuss
any particular provision of the Plan in this Confirmation Order shall have no
effect on the validity,
TRANSAMERICAN ENERGY CORPORATION'S CONFIRMATION ORDER Page 21
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binding effect or enforceability of such provision and such provision shall have
the same validity, binding effect and enforceability as every other provision of
the Plan.
29. Reversal. If any or all of the provisions of this Confirmation
Order are hereafter reversed, modified or vacated by subsequent order of this
Court or any other court, such reversal, modification or vacatur shall not
affect the validity of the acts or obligations incurred or undertaken under or
in connection with the Plan prior to the Debtor's receipt of written notice of
any such order; nor shall such reversal, modification or vacatur of this
Confirmation Order affect the validity or enforceability of such act or
obligation. Notwithstanding any such reversal, modification or vacatur of this
Confirmation Order, any such act or obligation incurred or undertaken pursuant
to, and in reliance on, this Confirmation Order prior to the effective date of
such reversal, modification or vacatur shall be governed in all respects by the
provisions of this Confirmation Order and the Plan and all documents,
instruments and agreements related thereto or any amendments or modifications
thereto.
30. Enforceable. Pursuant to Sections 1123(a) and 1142(a) of the
Bankruptcy Code, the provisions of this Confirmation Order, the Plan and the
Plan Documents shall apply and be enforceable notwithstanding any otherwise
applicable nonbankruptcy law.
31. Substantial Consummation. The Plan shall be deemed to be
substantially consummated on the Effective Date.
32. Appeal. This Confirmation Order is a Final Order and is subject to
immediate appeal.
33. Controlling Provisions. In the event and to the extent that any
provision of this Confirmation Order is determined to be inconsistent with any
provision of the Plan or the Disclosure Statement, such provision of this
Confirmation Order shall control and take precedence. Notwithstanding anything
contained herein or in the Plan to the contrary, the provisions of Sections
TRANSAMERICAN ENERGY CORPORATION'S CONFIRMATION ORDER Page 22
<PAGE> 23
6.02 and 6.03 of the Plan shall control and take precedence in the event of any
inconsistency between either of them and any other provision of this
Confirmation Order and/or the Plan; provided, however, that the foregoing
sentence shall not apply to the next sentence of this Order. If the Debtor
receives any tax refund after the Confirmation Date, such amount, after payment
of applicable allowed professional fees and expenses, shall be promptly
distributed to Firstar for prompt distribution to the TEC Bondholders, pro
rata.
Dated: July 18, 2000
Corpus Christi, Texas
/s/ RICHARD SCHMIDT
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UNITED STATES BANKRUPTCY JUDGE
TRANSAMERICAN ENERGY CORPORATION'S CONFIRMATION ORDER Page 23
