Free Declaration - District Court of Delaware - Delaware

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Exhibit

H

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IN THE

UNITED
THE

STATES
DISTRICT

~3ALVKRUPTCY
OF I)EL~AWArZIE

COURT

PC)R

Itl re:
NOR1RWESTERN CORPORAT~ON,

:

Chapter ii
Case No. 03-12872 (CGC)

Debtor.
DISCLOSURE STATEMENT AND S~MM.ARY DISCLOSURE

,'cajdear
STATEMENT, (B) SETTING A

ORDER (A) APPIZOVING THE DEBTOR'S SECOND AMENDED nND RESTATED RECORD DATE FOR VOTING PURPOSES, (C) AUTBORI~a~ING RESOLICITATION OF VIYrES, CI)) SCHEDULING n CE3PJTINUED BEARING ON CONIFIRMBTION OF SECOND AMENDED AND RESTATED PLAN OF REORGANIZATION, (E) ESTABLISHING NOTICE REQ'UIIZEMENTSS REGARDING TRE CONTINUED CONFIRMATION
HEARING AIYI) APPROVING TIIE FORM AND MANNER OF NOTICE, ANI)

(F) GRANTING RELATED RELIEF

UPON the Motion dated August is, 2004 (the "Motion")' oQNorthWestern Corporation (('N_IL~~~ the "L)ebtor"), as debtor and debior-in-~ossession, for an Order (A) Approvin~ or Debtor's Second Amended and Restated ~isclosure Statement and Summary Disclosure StntE~me~t; ~L~stablishing (13) Procedures for Resolicitatian and 'l`abulntion of Votes on Debtor's

Second Amended and Restated Plan of Reorganization;(C) Approvingthe Form and Manner of Notice; and (D) Granting Related Relief; and the Court having ''so ordered" the Motion and
Order to St~orten'l'ime for Notice and Response (tfic "Motion to Shorten Time") with respect to the Motion; it appearing from the affidavits of service filed herein that good and sufficient notice
under the circumstances of the Motion has been given in accordance with the Motion to Shorten

~11capira~iz~d ternls nnt defined hercid shall have the meaning ~crihed to ~hemin the Motion.

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Time; and su~l~ci~nicause appearing therefor; and after due deliberation; THE COURT
HEREBY I~I'NDS AS FOLLOWS;

A.

The Debtor has provided good and sufficient notice of the Motion, tl~eSecond

Amended Disclosure Statement and the Summary Disclosure Statement in accordance with Bankruptcy Rules 2002(b) and ~017(a), as modified by this Court by L'soordering" the Motion to Shorten Time with respect to the notice period ibr the Motion,
THEREFORE, OKDEKED, IT IS HEREBY: that the Motion is rTRANTET); and it is further

ORDEKEI), that the Second Amended Disclosure Statement, and the Summary Disclosure Statement detailing modifications in the Second Amended Disclosure Statement to

the First AmendedDisclosure Statementpreviously approvedby this Court, are both hereby
approved as containing "adcquate informatioll" respecting the Second Amended Plan pursuant to
Section 1125 ol' the REtnkruptcy Code; and it is further

OKI)ERED, that the notice of the Motion is hereby deemed good and suffi.cie~t notice;
and it is further

ORDEKEI), that the Record Date of May 26, 2004, as set forth in the First Amended Disclosure Statement Order, shall be the record date pursuant to Bankruptcy Rule 3017(d), for

determiningwhich creditors holding claims in the Settling Classes are entitled to receive a
Resolicitation Package to vote on the Second Amended Plan; and it is further ORDEKED, that the Debtor and Kurtunan Carson Consultants, LLC (the ('RallotinR A~ent") are authorized, pursuant to Section 1125 of the Bankruptcy Code, to resoljcit

acceptancesor rejectionsof the Second Amended Plan from holders of allowed impairedclaims against the Debtor in t'fi: ScttlinE: Classes by tl~etransmissionof a copy of this Order, the

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sunlmary Disclosure Statement, a ballot, a pre-addressed postage-paid envelope and any other materials the Debtor deems appropriate (the "Resnlicitation Packaae") to be mailed no later than

September8, 2004; and it is furiher
ORDERED, that the forms ofballots (the '~3~2~) annexed to the Certificatioa of

Counsel Seeking Entry of Revised Order dated Rugust 3 1, 2004 as Exhibit H are:hereby approved in all respects and may be used by the Debtor or the Balloting Agent in conjunction
with the solicitation of votes on the Second Amended Plan; and it is further

ORDERED, that the Debtor is not required to provide all parties entitled to vote on the
Second Amended Plan with another complete copy of the Second Amended Disclosure

Statement or i~ Second Amended Plan, unless they request in writing copies of these documents

from the Ralloting Agent, Kuptzpnan CarsaPIConsullanl~,LL~ 12910 CulvePRc~ul~var~ Sr~itrI, Los AnReE~ C~alifornQ 90066-6709.Allerslion.Cddrist~h~ K. Sc·h~p~~ ~bEL~phone.· 381(866)
9100; and it is further

ORDERED,

that the nebtor shall distribute or cause to be distributed,

in respect to

claims in Class 7 and Class 8, Resolicitation Packages to each Master Ballot Agent in sufficient number for such Master Ballot Agent to forward a Kesolicitation Package to each of the Rene~cid Holders for whom such Master Ballot Agent is the registered debt securities holder,

and each Master Ballot Agent shall be entitled to reimbursementfrom the Debtor of its
reasonable, actual and necessary out-of-pocket expenses associated with distribution of

ResolicitationPackagesto the BeneficinlHolder.sand tabulation of Ballots received from the BeneficialI·Ioldersand pr~F;iratiotl a Master Ballot; and it is further of ORDERED, that with respect to the tabulation of Master Ballots and Ballots cast by Master Ballot Agents,for purposesof voting, the amount that will be used to tabulate acceptance
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or rejection the SecondAmended of Planwillbe the RecordAmountandthe followin~
additionalrules shall apply to the tabulation of Master Ballots and Ballots cast by Master Ballot
Agents:

a.

votes cast by 13eneficial Rolders through a Master Ballot Agent will be applied against the positions held by such entities in the applicable debt
securities as of the Record Date, as evidenced by the record and depository listings. Votes submitted by a Master Ballot Agent pursuant to
a Master Ballot will not be counted in excess of the Record Amount of

debt securities held by such Master Ballot Agent; b. to the extent that conflicting votes or "overvotes" are submitted by a Master Ballot Agent pursuant to a Master Ballot, Balloting Agent will

attempt to reconcile discrepancieswith the Master Ballot Agent;
c. to the extent that "ovcrvotes'' on a Master Ballot are not reconcilable prior

to the preparation the votecertification, Balloting of the Ag~nlwill apply
the votes to accept and reject the Second Amended Plan in the same

proportion as the votes to accept or reject the SecondAmended Plan
submitted on the Master Ballot that contained the overvote, but only to the

extent of the Master Ballot Agent's position in the applicable debt security; and

d.

l'orpurposes oftabulntinl: votes, each Master Ballot Agent or Beneficial
IIolder ofa debt security will be deemed to have voted the principal amount of its Claim relating to such debt security.

ORDEKED, (i) all MasterBallotsfor Class7, all MasterBallotsfor Class&(;1), that all MasterBallotsfor Class8(b)and all Grass9 Ba.llots mustbe received the Tabulation by Agent' or Balloting Agent,itsidentified the applicable on Ballot,on or before5:00p.m, (PD'1~, on September 2004(the L~Votinr! 29, Deadline"), be counted (b) anyBallotor MasterBallot. to and
which is received after such time will not be counted; and it is further

OKL)ERED, that all Class 9 claimants vvho elect to become members of the Convenience

1''Tnbulation Agent" referto Roddholcier shall Conununications Masrer GruuF. Dailots Class Clnss ~d for 7, 8Ia)
Classg(b)shallbe delievered IheTabulatian ot Agentat tht:fnltowing address: Bondholder Comwunicatinns Froup,Att~:NN1CY Calloway, BtoadStree~, Floor,New Yo~k, 30 r16tlt NewYork1000·1.

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Class shall be deemed to have voted in favor of~he Second Amended Plan; and it is further

ORDEKEU, that with respect to Ballots or Master Ballots, as applicable, submittedby a
holder of a Claim:

a. ~5.

any votes received after the Voting Deadline shall not be counted as either an acceptanceor rejection of the SecondAmended Plan; any Ballot which is properly completed,executed and timely returned but does not indicate an acceptanceor rejection ofthe Second Amended Plan and any Ballot in which both the acceptanceand rejection boxes are
checked shall Trotbe counted as either an acceptance or rejection of the
Second Amended Plan;

c.

anyBallotwhichindicates acceptance rejection the Second or of Amended
Plan but which is unsigned shall not be counted as either an acceptanceor rejection of the Second Amended Plan;

d.

any Ballotof a Holderof Class8(b)- Unsecured Subordinated Note
Claims representedby the QUIPS Notes that indicates an acceptanceof
the Second Amended Plan But fails to select either of Option 1 or Option 2
on such Ballot shall be deemed to have selected Option i;

e.

each creditor shall be deemed to have voted the full atnount of its Claim;

f

solelywithrespectto Ballotsandnot with respectto MasterBallots,any BallotsthatpartiallyrejectOrpartially acceptthe SecondAmended Plan
shall not be counted as either an acceptance or rejection of the Second
Amended Plan;

g.

any Ballotreceivedby the Balloting Agentvia telecopier, facsimile or
other electronic communication shall not be counted as either an

acceptanceofr~jection of the SecondAmendedPlan; and
h, if no votes ate received with respect to a particular class of Claims that is

entitled voteoiltheSecond to Amended suchclassshallbedeemed Plan,
to have accepted the Second Amended Plan; and it is further OKI)ERF~D, solely for the purpose ofvoting to accept or reject the Second that

Amended Plan,onlyholdersof Claimsin the SettlingClasses, holdersof Class7 i.e., Unsecured Note Ulaims, ClassX~a) Unsecured Subordinated Claimsrepresented the Note by TOPrSNotes,Class8~) ·- Unsecured Subordinated Claimsrepresented the QUTPS Note by
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Notes and Class 9 -(jeneral Unsecured Claims teach a C~l~s~~q,

ate impaired and

entitledto voteto acceptor rejectthe SecondAmended through resolicitati6n; it is Plan the and
further

ORDF:RED,that for voting purposes only and not for the purpose of determiningwho
has an Allowed Claim or who is entitled tl receive a Distribution under the Second Amended

plan, and without prejudiceto the Debtor's rights in any other context, each holder of a Voting Claim shall have an Allowed Claim, solely for the purpose of voting on the Second Amended Plan, in an amount equal to the lesser of(a) the amount of such Claim as set forth in the schedulesof liabilitiespreviouslyfiled by the Debtor las the same may be amended) as required

by Section521 of the RaTllcruptcy Ithe"Schedulesn) (b) the amountof suc~h Code or Claimas set
forth in a timely filed flsocsf claim. The l'oregoingproceduresare subject: the following of to
exceptions: a. if a Claim for which a proof oi' claim has been timely filed is marked as, or

is by its terms, contingent,unliq~idat~dor disputed on its face, or an objectionby the Debtor has been filed to the claim for vihich a proof of claim has been timely filed and the objection has not been adjudicatcd, such Claim is temporarilyallowed for voting purFosesonly, and not fisr

purposes allowance Distribution, $1.00; of or at
b, ifs Claim has been estimated or otherwise allowed for voting purposes by

order of the Court, the Debtor proposesthat such Claim be temporarily
allowed in the amount so estimated or allowed by the Court;

c.

if a Claim is listed in the Schedules as contingent, umliquidated or disputed

and a proof of claim was not timely filed, the Debtor proposes that such
Claim be temporarily disallowed for voting purposes; d, if a Claim is not listed in the Schedules and a proof of claim is ti.mely

filed, the Debtor proposes tllat such Claim be temporarilyallowed Ibr

votingpurposes only,and not for purposes allowance Distriblltion, of or at the liquidated amounton the proofof claim;providedhowever, an it' objection the Claimhas beenfiledfor whicha proofof claimhas been to
filed and the objection has not been adjudicatcd,such Claim shall be

temporarily allowedf'or~otingpurposes only,and not for purposes of
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allowance or Distribution at $1,00; and

e.

if the Debtor has filed and served an objection to a Claim at least twenty

120)days before the expirationof the Voting Deadline, the Debtor proposesthat such Claim be temporarilydisallowed for voting purposes;
and it is further

ORDERED, that pursuant to Section 1128 of the Bankruptcy Code and Rule 3020 of the

BankruptcyRules, a continuedCon·tirmatiun Hearing (the "Conttnued IIearinr"), shall be held
before the IIonorrrb]e Charles G. Case, II, Un.ited States Bankruptcy Court Judge, at 9:30 a.m. on

October6, 2004, at the Vnitcd States Bankruptcy Court for the District of ~izona, 2929 N.
Central Ave, 9th Floor, Phoenix, Arizona 85012 on October 6, 2004, at 9:30 a.m., or as soon
thereafter as counsel can be heard to consider confinnation
is further

of the Second Amended Plan; and it

ORDERED, that the Debtor shall serve a notice of the ContinuedEIearing,substantially
in the form annexed as Exhibit F to the C'crtiflcation of Counsel Seeking Entry of Revised Order

dated Rugust 31.,2004 ~h~ "Conttnued He~n'naNoticc')), on or before September S, 2004, by

first classMailupon:(i) all creditors the Debtor;(ii) all equityand debt securityholdersof the of
Debtor; ~iii)all entities which are patties to executory contracts or unexpired leases with the Debtor; ~iv)all applicablefederal, state and local taxing authorities;(v) the Internal Revenue Service; (vi) the Securitiesand Exchange Commission;(vii) the Office ofthe Uait~d States

Tmstee;~viii) counselfor the Debtor'sPre-Petition I,enders; counselfor Ihe Debtor'sPost(ix) PetitionLenders; counselfor the OTlicial (x) Committee Unsecured of Creditors; the Federal (xi)

Energy Regulatory Commission; theMontana (xii) Public Service Commission; the: (xiii) South
Dakota Public Utilities Cornmissioa; (xiv) the Nebraska Public Service Commission; (xv) the

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Environmental Protection Agency; and (xvi) ail parties that have requested special notice in this Chapter 11 case pursuant to Ranktuptcy Rule 2002 (collcctively, the ~S)');
further

and it is

O~RI]ERED, that the I)ebtor shall cause the Continued Hearing Notice to be published once in each of the publications Listedas Exhibit E to tile Motion as soon as practical; and it is
further

C)RDEKET), that the Continued Hearing may be adjourned from time to time without further notice to creditors or parties-in-interest other than hy an announcement ofthe adjourned date at tl~eContinued Hearing; and it is further

OKI)EIE~D, that this Court shall retain jurisdiction to llear and determine all matters arising from the implementation of this order.

Dated: Wilmington,I)ela~yare Ge~rembcr 1, 2004

Honorable Ch~bb~s G. Case, II

United States TjlankruptcyJudge

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Exhibit

I

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TN TKE

UNITED

STnTES

BA~XRUPTCY

COURT

FOR THE DIST1UCT

OF DELAWhRE

In re:

NORTHWESTERU

~ORPD~TION,

Dc~tor.No.
UN~R~CPA~~R

03-12872 CCGC)

ORDER CONFIR~M~NG DEBTOR'S

SECOND A~I~NL)~D AND RESTATED

PI,AN OP

senRc~zuI~a~oN

11 OE' THE BANERUPTCY COD~

NElrt3~Wcntt3m Corpclratior~. a Delawareoarp~x~-~i~n '~' (the

or "NOR"),havi~g~ilod with

this Court its volutltar~peLi~ion relef undtr C~aptc~1 I ~f T~Lle I, U~it~d States Codo, I 1 for 1

U.$.C. ~$ 11)1 sea. jth~"g~E~E41~o~3 B

on Scptemher13,2003 Oh~'~t~~titi~n ]e~Ei:'); and

ihe Debtar~sai·ing ~L·ith Courtits First Am~nc~t~B ofRoorganlzation ~ilwl this Plan U~d~ E~~pls~r 11 of Uli: Bimlffu~tcy Codedaterl~a~ 2~4, 2004 ~th~ "First AmendedPlm") and SBcond
Amended and Rt~filaled PIun afKc~gnnizatr'on UnJ~TI Cha~ter 11 of the Bankn~ptcyCodb rlated Augur;t 18, 2004 [Bkt. Pu'a. 202Dj I%sIh~r~ftcr moctifnPrl, IfSccosd Ame~~d PI~n"a~ thr:

(1)the D~for having nled svith this Court the First Ansendcd Di~clc~surtSt~uancnt Pursuant tcs

Section1525ofth~ Ba~uptcy Cade for ~hePlan,~fReorpanization the aet~~w of dalodMay
17, 2004 (the "First hmt~adec~~~ljlcclosurc St~tpm~nt"),Second Amenrlsd;md Restated

DisclosureS~tatem~nt Putsuttt~t ScEtion1125of the B~nkt~u~tc~ f~r the Plan of to U~de Rec~ganizatic~n the I)e~~tor oC ~at~d~ugust 18,Z0IW rJ~kt. 20211Ithe"~C;_e~S~n~~ No. Djsc~srs~ SUcmcnr'' Or'n~scl~r8ure St~t~mcnt"~ SummaryBisclosureStatemcatPursu~l ~n~ to sc~ti~x, 125 of the Ba~ruptcy Iode rLzlerl 1 Au~~st18, 2004 CDkt. 20231~t~e Na. ''Summarv
Disclus~t~ Statement"); surd 'A~y fapi~ll7Rd used~ucin hutnn~ tenn ~therwis~ dcfiptdshahbye themcanj~e s~cn~ed sucht~m~ ~he lu in
Plan.

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Iii) tl~t First Amended Discli~sure Statement having been approved as con~a;n;ng "adequate inf~rmatiol·1,"as such term is defined in Section 1125 of the Bankruptc~ Code, by Order o ['this Court dated May 26, 2004 [I)kt. ~. 1373] ~he "Disclosure Stalemcxlt Approval ~Ord~]; and

(iii) the Discl~sure Statement Apl~rov~s~Z having, (1) authorized the Debtor to solicit Order ;1Cc~I~lancsS rejections of the First Amended PIan, (2) aypr~vt~dthe form of ballots to be or
Iransmilled with the Fjrs·t Amended Plan and First Amended Diselosure Statement for voting

pur7)0ses, ~3) fixed August 2, 2004 at 5:00 p.m. (PUT) as tl~edeadline fair su~xliClingballots accepting or r~j~cting the Plan ~he "Votina Deadlind"), (4) fixed Auyllst 2, 2004 at 4:00 p.m.
(EDT) as the deadline for o~jections to confirmation of the First Amended Plan to he filed and

s~n~ed ~Lhe "O~i~ction Deadline"), (5) fixed Au~g~st13, 2004 ~1.4:00r.m. (EDTI as the deadline I'orthe nehtnr to Cileand s~xr~e response to an ~l~jection to confirmation a~d (6) approved any
the form and manner ofnotiee oftfle Canfinnatiw Hearing (as defined below) and of the Vrs~nl:

and Db;jection Deadlines; and this Court having scheduled a hearin~ Ias such hc~ann$ may be

continued, the "C0n IjTmalibnHearing;") pursuant: to Section I 128 of the Bankruptcy Code for August 25, 2004 to consider confirmation ofthe Plarl pursuant to Section 1129 of the
B~ulkruplcy Code, and

(iv) the Debtor having solicited votes on the First Amended Plan by transmitting copies of the
first Amended Plan, First Amended Disclosure Statement, the Disclosure Statement Approval

Order, a notice of the Confirmation Heasing (the "Co-nnfrmattonHearin,o Notice") and an appropriate ballot to all impaired creditors entitled to vote on the First Amended Plan; and the
Court having considered the I)eclaration of Voting Agent Rega~ding T~bulation of Votes in

Connection ~ilh I)eblor's First Anlendcd Plan ofReory~ni;s~~~.i~,nt NO. llY30](tt~e'(Votjnp [nkt. A~ct~tDuclanti~~l''); and

~jlD~D2j4.1

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(v) it appearing that due notice of~he V~tiT1~ Deadline, the C~nT~rm~tioa Hearing and the Objection Deadline has been given hy the Debtor to creditors and other parties-in-interestin accordancewith the DisclosureStatementnpproval Order, the Bankruptcy Code and the Federal ICulesof Banl;nrptc~Procedureas evidencedby the affidavitselfmailing a~d orpublication iiled
with this Court; and the ~isclosutu: Statement and Summary Disclosure Statement having been

approved as containing"ad~quateitlformation,"as such term is defined in Section 1125 of the
Bankruptcy Code, By Order oft~is Court dated September 2, 2004 [Dkt. No. 203;] (Iht: "Resfllicilalion Order"); and (vi) the Reso]ir;itation Order having, (1) nulhorixed the Deblar to resolicit acceptances or

rejections of the Plan of Class 7, 8, and 5)claim holders, (2) approved the frrrmol'ballots to be
transrmtted with the Summary Disclosure Statement for v~tin~ purposes, (3) I'ixcd lit~tcmbcr

2.4,2004 at 5:00 p.m. ~PDT)as the rle~dlinefar submilting ballots acceptingor rejecting~i~e Plan
~tbe "Re~olicit~in~ Votirl# Deadline"), 14) fixed Se~7teml,m15, 2004 at 4:00 p.m. (EDT) as tlle deadline for objet;tons to confirmation ofthe Plan to be filed and served, IS) approved ~h~ Tarfl and manner a Fnotice of the continued Confirmation Hearing and oTths Rcsolicitation Voting Deadline; and tl~isCourt having continued tI~eConfirmation Bearing to October 6, 2004 to consider confirmation of the Plan pursuant to Section 1129 of the Banlouptcy Code; and Ivii) the Debtor having resolicited votes on the plan by transmitting copies of the Summary Disclosure Statement, the Res~licitati~n Order, notice ofthe continued Confirmation Hearing It'ne "Con~inued C~ftrmalion Hez~rinaNotice") and an appropriate ballot to all im;p~ircd creditors entitled to vote on the Pl~u~; the Court having coasideTed the Declaration ofV~ting and Agent R~Zsardin~ Tabulatron ofVotes in ~~I~ectian with the Debtor's Second Anlended Plan t~f Reorganization [Dkt. ~. 2170]; and

3

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(viii)it appearing due noticeof the Resrslicilati~n that VotingDeadlineand the conliTlled Confirmation Hearinghas beengivenby the Debtorto creditors otherp~tli~-i~-inttrest and in.
accordancewitl~the ResolicitationOrder, the B~u~k~plcy Code and the Federal Rules of

L~~kruI~lc~ Procedure evidenced theal~idariits as by E~fmailix~gpublicati~filedsu;th and this
Court; and

~x)theD~hfOT filedwiththisCourta Memorandum~Law Support Confirmation having of in of
ct the I)c~tor's Second Amended and Restated Plan of Reorganizationunder Chapter 11 of tRe

Rank~uptcy CDkt. 1928] MemorandumLawin Further Code No. and of Suppo~ Con~rmatir~ of
ofDebtor's Scca~ld Amended and Restated Plan ofRe~wlization under Chapter 1i oCthe

Bankruplr;~ Codeand in Response SL~pplem~nta~ to Objections Confirmation to rDkt.No. 2~45]

(the"S~nlemsnea~ Brief')filedm response theSupplemental to OhSection Ma~enAsset of
Management Corp~xali~n Confirnlation the Debtor'sSeeondAmended Restated to of and Plan

of Reorganization No.2105] "Maet~n [Dkt. (~he Obiection") theSupplcme~tal and Objection ol'
Law ~e~t~nlureTrust Company of Ncw·York to ~o~frrmatioa of the Debtor's Second Amended

Plan of R~or~wizslt·ion No.2104]Ithe'TLaw Cl~kt. Debenture Obiw;tion''); and (x) it appean~ that the objections confirmation by certainparties-in-interest been to fi~ed have
resolved, withdrawn or overmled; and

~xi)this Courthavingconducted Confirmation the B~aring August25, 2004andthe on
~ontinue~~~nf~r~nalion Hearing on October 6 2004, and after due deliberationa~d consideration and having reviewed all pleadings, proceedingsand evidenceheretoforepresented

in this Chapter~1 case and at the respective ~oalirmation heari~s and su~icientcause
appearing therefore; and

A·l·l;~nsn2u.r,

4

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1T HAVIR'G BEEN FOUNU AND I)ETEK;1UI~ED by tl~isCourt that. A. r;indinas ofr;act and Conclusions ofl.a~v. The finriin~s offa~t and conclusions ofla~s~
set forth herein and on the record of the Confirmation ~L~eann~constj tute the Court's

findings of fact and conclusions o Ilacv pursuant to I~le 52 of the Federal Rules of Civil
Procedure, as made applicable hereinby Bankruptcy Rule 70$2 m-rd9014. To the extent any of the following fmdings of fact constitute conclusions of law, they are ~rlo~t~b as such. To the extent nny of the following conclusions of law constitute findings of fact,

~hevare ;I~~ople;d such. This Order incorporates the C~urt's oral ruling issued in the as

Debt~or's Chapter Case October 2004, 11 on 8, which Order, among things, other
confnmed the Plan in all respects and overruled all objections to con[irmation not otherwise rvithdrawn or resolved as identified by the jneWor in Exhibit A to ther)ebtor's Memorandum of Law in Support of Confirmation of Debtor's Seconcl Amended and Restated plan c3fReOrl;lanizatirrn Under I:hayttr 1 Lo~the Bankruptcy Code [Dkt. No. 1~281, as amended, Notice 6f Filing o~'Ame~d~clExhibit R to the Memorandum of La~sv in S 11~7I)OrtCOnfrmdi~n or Debtor's Second hmcnded and Restated Plan of af Reorg~ni~a~irxlUnder Chapter 11 ofthe Bankruptcy Code IDM. No. 2~56].
B. Sudicial ~i~~icc. Pursuant to Fc~deral Rule of~idenc~e 201, the ~ankruptcy Court takes

judicial notice of the documents included in t~e Dc~t~r's Request to ~gke Judicial Notice nl~C~tain Pleadings and Related Df~cumcnts Filed with the Court filed on A~gust 18, 2004 EDkt.No. 1925)](the "nebtor's Reullest for Judicial .h'~t;ce~. To the ext~nt not included in the nt~tor's Request for Judicial Notice, the Bankn~ptc~ Court, pursuant to Federal Rule of Evidence 20 1, takes judicial notice ortne docket of this Chapter 11 Case maintained by the Clerk of the Bank~uptcy Court, including, without limitation, 611 plearlin~s and other documents filed, all orders entered, and all evidence and arguments made, proffered, or adducod at the various bearin~s held before the B~l~ruptcy Court during the p~ndcncy of the Dc'dtorls Chapter 11 Case. C Off~ of proof The Bankruptcy ~ourl takes judicial notice of the Debtor's Offer of Proof and Outline of Evidence m Suppr~r~ Arteyuac~ of n~btor's Procedures and of Notice in Conjunction with its Second Amended and Restated Plan of Reor~~su~illib~
~ndcr Chapter 11 ofthe Bankruptcy Code [Dlt. No. 2Y32, Det~tor's Exh. 15] (the "Offer

of Proof'). ~he BanknrptEy Court enters i~ltoevidence Debtor's Exhibits 1-90, 114-121, 127-139, 142-14B and 150, identilied on the Notice o~Designstion ofExhibits to be Used
witl~ Respect to the Confirmation Heanng filed on August 20, 2004 I~Dkt.No. 19~11, as

such revised exhibits were introduced at the Confirmation Hearing, Exhi~its 1-6 of the Creditors' Committee, identified on the C~~fim~tior~ H~anng An~ended Exhi~it List ol'
the Official Committee of Unsecured Creditors filed on August 23, 2004 [Dkt. No. '1970]

and ExhiE~itsI and 2 of the Equity Holders introduced into evidence at the Confirmation
Hearing.

Pursuant to r;~deral Rule of Evidence 20 1, the Bankruptcy Court takes jludicial notice of the Supplemenn;il Olfet o FProu~and Outlint: al' Evidence in Support of the Adlequ~cg; the of Debtw's Procedures and Notice in Conj u~ctiotl with its Second A~nend~d and Restated Plan of

.2TLi1~602~.9

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Reorganization underChapter11 of the Bankruptcy Codeand Request TakeJudicialNoticeor to
Certain Pltadings Filed with the Court CDkt. 2166] (the "Suosleme~lal DTi'er Proof'). No. of
The Bankruptcy Court enters into evidence Debtor's Exhibits 151-166, 180 and 185, as such revised exhibits were introduc8d at the ~~ntirmation Hearing. D. Jurisdiction and Venue. This Court has_lurrsrhcllon over this Chapter Il Case and the

subject matter afthe ~~nfinnat~i~n Hearingpursuant to 28 U.S.C. ~~ 157 and 1334. The
~~nfinnation Hearing is a "core proceeding" pursuant to 28 U.S.C. ~ 157jb)(2) and this Court has jurisdiction to enter a final order ~it~ respoct t~lereto. Venue of this Chapter 11 Case in this district is proper pursuant to 28 U.S.C. 9~ 1408 and 1409.
E. Ba~k~~~d. i. Petition. On September 14, 2003 (the

"~etition Date"), the Debtor filed its voluntary petition for relief

n~~der Chapter 11 of the BankruptcyCode [Dkt. No. i]. The
Debtor continues to operate its businesses and manage its

properties as a dcbt~,r-in-possession pulsuanl to Sections 1107 and
1108 of the Bankn~F~cyCode. No request has been made ~orthe appointment ufa trustee or examiner in the ~~pter 13.Case. The Creditors' Committee wa; appointed By the Office ofthe United
States Trustee on September 30, 2003.

2. An~sirltment aPtt~e Creditors' Committee. On October 2, 2003, the United States Trustee appointed a nine ~9)
member Creditors' Committee in this Chapter 11 Case pursuant to

Sd~ti~n 1 102 alths Bankruptcy Code to represent the interest or
all holders of unsecured claims. The members of the Creditors'

Cc>mmitl~:e were: Ci)OCM Opportunities F~ld IV, T_.P; L~M' (ii) nebentuxe Trust ~ompan~ of New York, as successor Tnd~tc~Ta Trustee a The Bank ofNew Yolk; ~iii) Fr;inklin TempletDn Mutual Series Fund; (i~ Wilmin~ton Trust Co.; (v) HSBC Bank

USA; (v;) Rocky Mountain Contractors,Inc.; Ivii) Avenue Capital
Management, Iviii) AG Capital Recovery Partners m, LP; and ~x) Comanche Park, ~I~X:[Dkl. No. 1221. By notice dated November
25, 2003, the Ullited States Truscce added Magtcn Asset

Management Corp. to the C~dil~ls' Committee f~ll~~vingRocky Mountain Contractors, Inc. declining to ser~e on the Creditors' Committee [Dkt. No. 449]. By notice dated May ~, 2004, the United Sbles Trustee removed Magtcn Asset Management Corp. and L~u Debenture Trust Company of Nc~v York ~om the Creditors' Committee [Dkt, No. 1223]. By notice dated May 7, 2004, t~e United States Trustee re~n~ri~ Com;TnchePark, UC from the Creditors' Committee Ellkt. No. 12,78]. By-notice dated July 27, 2004, the United States 'I~stee filerl.the Seventh

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Amend~d Notice ofAppointment

reflectin~ OCM Opportunilies

Fund IV, L.P.'s resignation from the Creditors' Committee elfective July 19, 2004 [Dk~~ No. ~7~4:1.By vc~rittcn notice to the United States Trustee dated October 8, 2004, AG Capital R~overy Partners iii, L.P., resigned from the Creditors' Committee
eI'fectil;e Ocro~sr 3, 2004. As ofthe date of this Order, the Creditors' Committee ~-as comprised of (i) Fr~klin

Templeton ~LiutualSeries Fund; (ii) Wilmillgton Trust Co.; ~iii) HSB~ Bank ~LiSA; Iiv) and
Av;s~~e Capital Management. 3. Bar Date Order and Notice Thereof The Court entered an r,rder establishing January 15, 2004 at 5:00 p.m.

(Pacifir: Standard Time) as the deadline fur non-~o~uemm~tal
creditors, and estat~lishing April 15, 2004 at 5:00 p.m. (Pacific

Standard Time) as the deadline for go~ernm~ntal creditors
(callec~ivel~, the "Bar Datc')), to file proofs of cIaim for each claim

fhcy assert against the ncI~tor that arose before the Petition Date
[pkt. No. 137, Debtor's Exh. 211 Ithe Ci~E~d~3·
notice ofthc in acco~dan~e Bar Date ~as mailed to all knov~n creditors with the Bar Date Order. As described

The
ofthe in the

Debtor and published in num~ous regional and ~lation;ilnewspapers
Affrdavit of Service ofgar Date Notice, sworn to by Angela M, Lo on November 17, 2U03 [Dkt. No. 406, Debtor's Exh, 22] jthe '*Lo Affidavit"), copies of: I~i)the Notice ofDeadlines far E'Ilin,oProofs of Claims and a personalized Proofof Claim were served on the

creditors listed on Exhibit A to the ~ A~idavit; (ii) copies orthe Notice ofl)eadlines for Filing Proofs of Claims and a blank Proof
Claim were served upon the 2002 Service List attached as Exhit~it B to tl~e Lo Af~davit; and (iii) the Notice of ~eadlinc~s for FilinlS
Proofs of Claim was served on the list xttaehed as Exhibit C to the

Lo Amd~vit. The Court herehY Findsthat: Ii) the trasmitttl of the N~~ice orDeadlines f~n'Filing Proofs o~Claim was adequate and su~rici~nt under the circumstances of this Chaplet 11 Case; Ii;) such
nodce was provided in c~mplianca with the Bar Date Order, the

Bankruptcy Code and the Bankruptcy Rules; and (iii) no other or further notice is required. F. Debtor's Pronertu Ri~hts, Title and Interests in Execulorv_C~L~acls, ~L~ases. Ri~hts and of Way. On July 16, 2004, the Debtor ~led its Notice of Contracts the Debtor intends ~r,
Assrrme ant~or Reject Pursuant to Section IV.F oft~e Debtor's ~irst Amended Discbsu~ Statement Pursuant to Section 1125 of the Banknrptcy Code for the Plan of

Reorganization [Dkt. No. 1700] and w Au~y-ust 2004, t~l~e 9, Debtor filed its Notice of Amendment to Schedules of Contracts the Delttor ~nteads to Assume ~nd~rr R~~ct
Pursuant to Section TV.F of the Debtor's First Amended Disclosure Statement [Dkt. No.

~TYlD60234.Q

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1866]. Pursuant to the notices, the Debtor indicated its intent to assume certain

executoryconl~acls,leases, and rights of way. On Sgt~m~cr 22, 2004, the Debtor filed
its Omnibus Motion for Court Approval to Assume Certain Executory Contracts Pursuant to Section 365 of the Banlrruptcy Code and Grantjn~ Related Relief [Dkt. No. 2108]. G. Class Action Settlement. On or a~out April 28, 2003, the Dehtor filed its Molion fur

Order Pursuant to EankruPtcyR u]e 9019 APllrovingMemorandumof Understanding ~T)kt. i 169, Debtor's Exh. 53] (the r~l~U_L~i·T~Il~q. Tulqr 2004, the Court No. On ·r4, held a hearing on the MOU ~lotion and on October If,2004 tl~is~~urt entered its
Memorandum Decision overruling the objection of MagtEn Asset Management Co~porirti~ approving the Proposed settlement and finding that the proposed settlement meets the requirements of~anknrptcy Rule 9019 and applicable case I~slv IDkt. No.
2175].
H. The Plan.

i.

The First Amended Plan. On May 25, 2004,

the De~tor fried its proposed First Ams~detl Disclosure Statement Pursuant to Section L125 of the BatlkruXstcy Code for the Plan of Rs~ur~arrizali~nufihe nebk,r [Dkt. No. 1352, Debtor's ~I~xh. I],
which ame~dcd the First A7nenrled Disclosure Statement Pursuant

to Section 1125 of~t~enankruptcy Code for the Plan or Reorganization ofRhe Debtor filed on May 14, 2004. Also on May 25, 2004, the Debtor filed its proposed First Amended Plan of Reorgani zati~n Under Chapter 11 of the Bankruptcy Code ~Dkt. No. 1351, Debtor's Exh. 2], whicl·1 am~ded the First Amended Plan ofReorganizatioa Under Chapter Il of the Bankruptcy Code ~led cm MaJr 14, 2004. Afler due notice and a hearing held on May 1.7·, 2004, this Court entered on May 26, 21)04 an Order II) Approving First Amwded Disclosure Statement, (~I) authrsrizing the Solicitation of Votes, till) Scbeduling a Hearing on Confinnation ofthe Plan rsfaeor~anizatio~, In~ Esta~lishing Notice Roquiremen~s Regarding the Confirmation Hearing and npproving the Poon and Man-nor~f~otice and ~V) Granting Related Reliel' Respecting the Dehtor's First Amended Plan of RearE3z~niz~tion [Dkt. No. 1373, Debtor's Hxh. 3] finding that the
First Am~nded Disclosure Statement contained "arleyuate information" ~vit~in the meaning of Section 1125 of the Bat~Yuptcy Code and esta~lished grocedures for the ~~bt~r's
solicitation ~fvotes on the j~iirst Amended the solicitation Plan. In accordance

with the Disclosure Statement Order, on or about June 4, 2004 the
Debtor commenced
Solicitation ~laterials.

of votes on t~tleFirst Amended

Plan [Dkt. No. 1469, Dehtor's Exh. 31], AfCida~it of Service of 2. The Second Amended Plan. On August 18, 2004, the ~e~tor filed its Second Amended Plan ol*Rsorganization
Under Chapter 11 ofthe Rankrugtcy Code [Dkl. No. 192$?

Debtor's Exh. 6], Second Amended Disclosure Statement Pursuant

.r;rY1~~0234.0

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to Section 1125 ofthe Bankruptcy Code for U~t: Plan ~r
Ktorgauization oftbe Debtor [Dkt. Tu'o. 1926, Debtor's Exh. 5],

and Summary Amended Disclosure Statement Pursuant to Section
1125 of the Bankruptcy Code [Dk~. No. 1921, Debtor's Exh. 1 1].

On Au~ust 25, 2005, after due notice, the Court held a confirmation hearing on ~t~e Debtor's Second Amended Plan. On
Aug~st 31, 2004, followinl; the hean~~g, the Dehl~ filed its revised Second Ame~ded Plan ~Dkt. ~io. 2020], Second Amnldc;d

Disclosure Statement [nkt. No. 20~ 1i and Summary Disclosure
Statement [Dkt. No. 2023]. After due notice, this Court entered on

September 2, 20U4 an Order (A) Approving the Debtor's Second
Amended and Restated Disclosure Stattrmsnt and Summary

Discl~Yure $·ial~ineni, IB) Serring a Record Date ~ Voting Purposes, (C) Au~h~ri~ng Tiesf~licjti~ttion Isr~ot~s, (I)) Sehoduling a Continued Hearing on Conlirmation ol' Second Anlended and Restated Plan ol' Reorganization, (E) Establishing Notice Requirements Regarding the Continued Con~LimiltionHearing and
Approving tire Form and Manner ofNotice, and (P) cranting

Related Rslisl' linding that tt~eSecond Amended Dis~closure Stal~nent and Summary Disclosure Statem~nl contained
''adequate information" ~it~in the meaning of Section 1 125 of tl~e Bankruptcy Code and established procedures for tl~e Debtor' s resoiciitaiion ofvotes on the Second Amended Plan [Ilkt. ~.

2033]. In accordance v;-it'n Rcsolicitation Order, on or about the SE~pmrn~er 2004 the Debtor commenced the r~solicitati~n of 8,
votes on the Second Amended Plan [Dkt.'No. 2126].
i. Notice.

1.

C~mnli~n~e with Disclosure Statement

i~t~Droval Order. in ~ccord;mce wit'h the I)isclosure Statement Approval Order, the Banl~Etuptcy Cade and the Bankruptcq~ Rules, as described in the Affidavit of Service, s~m to by Chris

Schcppcr on June 14, 2004 ~Dkt. No. 14~9, Debtor's ~Exh~. ~~e 31] "Scheaner ATridi~il"), the ne~lor timely: (a) mailed (i) notice o~
the date, time, and place ~f~e ~~nfirmstti~n Ilearin~, Iii) notice of

tire deadline and procedures for filing ~l~j~ctionsto confirmation of the Plan, and ~ii) an a~pro~ri~8 balllot for voting on the Plan, upon the pa~2jesset forth in the Disclosure Statement APproval Order, and I'b)pul~lis~t~e~ notice ofthe Confirmation Hearing in ~c~ o~
the rollo~s~ing ~i) Argus LR~r, Iij) Billiny Gazette, ~iii) Great

Falls Tribune, Iiv) the MisS~ulian, ~y) New York Times, (vi) Rapid
City Journal, (vii) USA Today, and (viii) The Wirll Street Journal

as required by the Disclosure Statc~ncr~t Approval Order [l)ebtor's Exh. 23-311. The Court hereby finds that: (i) the tr~t~smitta~ ofthe ~tice of the Con ~tmali~ Hearing and Ballots svas adequate and
sufficient under tl~e:circumstances of t~is ~l~apter ii Case; (ii) such notice was provided in conlpliance with the Disclosu~ Statement

hTLjlOti~Z~.~

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Order, nankruptcy andtheBankruptcy the Code Rules; jiii)no and
other or further notice is required.

2.

C~nluliancewith the ResolicitationOn~er.

Tnaccord;u~cewith the Resolicitation Order, fhe Bankruptcy Code

and the Bankruptcy Rules,as described the Affidavit Sen·i~e, in of swornto by ChrisSc~~pper Septem~er 2004 [Dkt.No. on 27, 2126,Debtor'sExh. 1551 "Sr;heMrer ~the Resolici~ation

Affidavit"), acbtortin~ly(a)mailed: notir;t thedate, the (i) of
time,and placeof the continued Cirmhtion Con Hearing,(ii) the

Summary Disclosure Statement; Iiii)an appropriate for and ballot
votingon the Plan,uponthe partiesset fartl~ the Resolicitation in Order;and Ib) causedto be published noticeoflhe continued
~~nfirmation Hearing in each of the follorving~) Great Falls

Tribune, theMiss~ulian, NewYor~e (ii) (iii) Times, R~pid Fi~ City
Journal,~v)USAToday,(vi) The WallStreel.TournaI, Ivii)

Billings Gazette; Iviii)Argus and Le~der reyuired tl~e as by
~R~s~licil~ti~n [Dkl.Nos. 2128- 2135,Debtor'sExh. 156Order

163].TheCollrt hereby that:Ii)thetransmittal Notice finds oft]~e
o r the ContinuedConCirrnation Hearing and Ballots for

resolicitation arlequate sufficient was and underthe circumstances

ofthis Chapter Case,Iii)suchnotice~i~as 1l pror;idcd in compliance theRr;sol;citaG~n theBanluuptcy and with Order, Code theBankruytey Rules; Iiii)nootheror further and nnlica is
required .

j. Ta~i~f~S. As described in the Declarationc>TV~ting A~t Reg~d~l! TabulationofVotes in Conncetionwith Debtor's liirst Amended Plan uF~Roor~aniza~ian

~t~e "Votinr A~e~t Declaration") No.1930, ~~kt. De~t~r's 32],sworn by Exh. to
JonathanA. Carsanon August17,2004,Kurtzman CarsonConsultants (the r~LC

"~")

distributed solicitation the packages setf~tthinthe Schepp"r as

Affidavrl.TheBalloting Agentrccei~~d tabulated Ballotsas fol~ows;~a)each and the

wtur~ed Ballot opened;md was inspected theBall~ting 8 Agent's office; Ballots ~t~3
weredate st~m-l~ed, according Planclass,and scannerl the Bank~uptc~ sorted to into

Administratien System; allBallots Ic) ret~eivc~d Vodng bythe Deac~ine thenenter~d ~ere
Intothe Bankruptcy Administration Systemand tabulated aecordance the 171 vrith
tabulationrules outlined in the DisclosureStatement Order. Voting Agent ~eclaration,

~112. Classes 9 and12accepted FirstAmenJcd withrespect both 7, the Plan to
numerosity amount. Class8 ·t~~ted rejectthe FirstAmended and to Plan.
K, TabulationofVc~t~s ~on~Bctianwith the Releases. The Voting Agent Declarationsets in

fbrththefc~llowj,g results connection thereleases in with provided under First the
Amended Plan:

Impaired
Class

Total
Members Voting

Mcm~ers
Released

Memh~rs
Not Released

Abstentions

% Released

I
10

A.[.Li]06(12-73~~

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···_

·_···___·_

Class

5

261

215

46

264

X2,380~'u

Class 8

'

2150

1429

721

66.47%

Class 9

24

18

7

75.00%

Class

12

28

20

8

O

71.43%

See Voting Agert~ De~l~~ion,
L. 'Tabulation ofVotes in I30nnecti~n with Resolicitation.

TI16.
~s descnt~~ in tI~E!Declaration

af'C'nLing Agent R~arding Tabulation of Votes in C~~~ect;on ~L-itE~ Debtor's Second
Amended plan ofReorganizstion ~he "Votinp Aewt RcsolicitatiEln l)eclaration") [nkt.

No. 2170, Debtor's Exfi. 185], sworn to by C~risfaphcr Sch~ppcr on Octot~er 5, 2004, tl~e

BallotiTlgAgent rlislni't~ut~d ~esolicitntioTI the packages as set Forth in the Schcppcr Resolicil~ti~n At'fidarit. The Bal~oting Agent, with the assistance of the Bondholder
C'omnunication Group ~'BCG"), received and tabulated the lBallots as follows: Ballots ~ere date stamped, sorted Systern, ~c) all ~a) each

re~t~med Ballot was opened and inspected; ~

according to Plan class, and scanned into the Banknnptcy Administration

Ballets received by the volirlg deadline w~tt: then tabulated in ~c~ardance with the
tabulation rules ~ut~lined in the Resolicitation Order. Voting A~ent ResoIicitation

I)~clsratian, ~ 10-15. Classes 7, 8Ia), 9 and 12 accepted the Second Amended Plan with
respect to both numerosity and amount.
Plan.

Class XCb)voted to reject the Second Amended

M. Tabulalion ~f~lass 81b) ~~~ns.

The Voting Agent Resolicjtat;on Declaration sets fort~

the fbllowing results in cann~ction with the holders of elass 8(~) options;

~rrs~ncjo23J.o

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1Mem~ers

kt Memlt~ers

for

# Members

for

Shares

for

Shares

for

Voted

Dptifln i

Option 2

Uption 1

Option 2

532

439

43

~31,622

253,22~

N. 'i'abulatian of Vates in Connection wi~h Rele;L~eRon Resoll~i~a4on.

The Voting Agent

Resolicitati~n Declaration sets forth the frslluwing results in connecrian with the releases I~r~dded under LheSecond Amended Plan:
~mpaired
Class T~tal Members ~embe~s Released

Members
iYot Released

Abst~ntions

% Released

C

Votin~

i~:lsss 7

423

390

33

i

lu~A

32.20%

Clnss g(n)

2593

1963

i -·

630

75.753%

Class 8Ib)

BSB

45)8

157

NiA

7~.U7%

Class

~

1

41

29

8

4

70.73%

See Voting Agent Declaration, fl 19.
O. Obiecti~ns

hTU]06~234.P~

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i.

[I~icction of Stet~h~r~ M~tflinTDkt.~To. R.

17791. T~he objection of St~phen R. Heflin failed to provide any
basis for the abjection and is overruled.

2.

Umited Obiection ol'Wells F~r~o, Mstional

Assb~ialjon ~"WBllsFar~"), in its c~at~acitv Indenture Trust~c, as to Debtor's First Rmcndcd Plan ofKe~r~aniz;atlon Under Chapter 11 ort~e Bankrut~tcv Code re: Docket Na. 1351 TDkt.No. 17801 and Lirnited Obicctiotl ofU.S. Bank, National Association I''U.S. B~k'9. in its Caaacitv as indenture Trustee. to Debtor's First Amended Pla~l ofR~30rRanizationUnder Ch~ter 1 1 ~fths nankrurrtcv Code re: Docket No. 1351 rDkt. No. 17X`ll. Wells Farf~osought clarif~in~ ~~bcrua~e c~mection wilh Sectjun 5.~7 in
~fthe First Amend~d Plan as wcU as the defrned terms "Secured

Bonds" and "Scsulh Dakota Pollutjan Control Bonds," Sectians 1 .l 58 and t.l 64 of the Xijxst~n~cleJ. Plan, respeclivcl~. U.S.

Bank sought cl~i~ying ]~nguage in connccfion with Section 5. 17
ofthe First Amendcxl Plan as well as Section 5.5 ~ftht First

Amended Plan. The Court hereby finds Lhatboth objections have been resolved yr~suant to revisions made to the Sec~nd Alnerlc~xl
Plan and the objections are overruled. See, Plan 5i5 1.i 68 ~SeL·urPld

Bonds), 1.174 IS~~t~h Dakota Pollution Contro~Bonds), 1.175
jSouth Dakota Pollution Control Cla~m~i), 5.5~ (C;mcellalio~ and

A~L;ldG1)291·~

13

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Sut~end~ of Existing Si;r;urities A~ec~mentE1, 5.~8 Ilndenture and Trustocs Charging Lien). 3. Eim;ted Obi~~c>n of PP'L Montana ~LL~

(''PPLM") to Confirnaaionnc>fth~n~to~'s First Amended Plan of
Reor~ianization Under I3ha~ter 11 of the Bankrur~tcv Code I~Dkt. No,~~7841. a. The fisllowid$ documents

l~avebeen filed in connection uri~hPP~vl's cl~im: Ii) P~'s
Au~st

~T~ofof claim, Claim No. 714, as sm~ndcb on
3, 20W ~he "PPLM Claim''); (ii3 Debtor's

Objection to Claim ofPPL Montana, LL~ Pursuant to 1 I

I~.S.~. ~ 502@) and Fed. R. Bankr. P. 3007 [Dkt. No. 1658, Debtcl~'s e.xh. 85]; (ili) Motion oTPPL Mont~la for
Abstention or in the Alternative for an Order Directing that Rewrution ofClaim of'cbe Objection to ~PL, ~ul~ntan;t, ~LLC's Proof be Determined by tbo U~itod Stales: District Court

f~r the District of Montana [Dkt. No. 185~]; (iv) Order
Granting Abstention [Dkt. No. 2~58]; (v) Motion Pursuant to Sections ]05~a), ~~3~) and SUZ(c) of the Bankroptcy
Code for Ilstimation of PPL Montana LLC's Claim and to

Establish Disputed Cla~mReserve [Dkt. ~o. 2050j; and
~r~i)Stiyulatiun and Order Resolving Section ill of the

Limi~ed ObJ"ction of PYL Montana, L~C to Confirmation

A7L'10~23J.9

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of the Debtor's First Amended P1~ ~fRe~rgE~zatiDn Under ~hapter 11 ofthe Bankruptcy Code and the Debtor's Motion Pursuant to Sections 1U5~a), 36~~b) and 502(a) of

the Bankruptcy Code for Estimation of PPL Montana
UXl's Claim and Establish a Disputed Claim Roserve CDkt.

~ub. 2183] (the "PPLM Stiau]a~iun~. PPLM abj e~ted to the I:irst htncnded Plan because it asserted that t~e injunctions

provided for in the First Amenrled Plan attempted to extringuish its setrsn'rights. Section 1U.S(b)~i)ofthe Second Amended E)larr provides Ihat "[~]~~witfist~ndillg an5rprovision of this Plan to the contra~, ~his Plan: Ii) shall not enjoin or extinguish any rights or claims asseri~edby CPPLM] in its proof arclaim dated January 13, 2004 las Tllaybe amended) or asserted in any other manner, including, ~vithout limitation, [PPLM'sl counterclaims and n'ght of selo~-r." The Court hereby linds that the language in Section ZO.S(h)(i)resolves P~LM's olsjection in
cu~neclion wilh the reservation ofits counterclaims and

ri~ht of setoff; therefore, PPL·M's objection to the injunctic~ns provided in the Plan is hereby overruled. c. PP~L~l;ilso objected to the

inlF~emenlaticmof the l)ravisions o~the PI~n regarding the

An;loco2~9.9

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establishmentofthe Disputed Claims Reserve because the
Debtax ma3e inadeyuate prou;sioTI Torthe manner and timing of establishing reserves for Disyutcd Clainls. The Debtor and YPLM entered into tl~e; PPX~I S~Fu~ntion
~vl~cret~ythe Debtor will establish a s~l~e~alecl reserve that

will be usecl solely for the pur-pose of any distributions to be made for the PPLbMClaim. The s~egatcd reserve will

be fundtd by shares of common stock equal to the value of $50,000,000, c·alued a~ grthe E~fcc~i·c·e Date, pursuant to the terms ofthe PPL~I SLipulalinn. Bs the Debtor and
PPLM hr~je reached a stipulation in connection with

PPCM's obj~ction, PPLM's objection is resolved pursuant to the PPLM Stiyulatiisn.
4. Ol>icction of Lndwture 'I'nrstee, to First Amended Pl~m ofRcoraanizati~n Trust Obiection") and Obiectiun

~~nfinmntiun ~PI)c~tw's

~Dkt, No. 17891 Ithe "Wilminaton

by Harbe~ ManarreKlent to Confirmation of the r)e~t~r's First Am_endedPl~anorIEeo~F~ni2ation Under Chanter 11 afthe Ba~kn~tcv~Cod~ TDkt.No. 17901 Ithe "Har~crt Obiection"), The ~Vilmin~o·Fl Trust and FlarberCObjections to c~n~rm~tion~ave been withdra~-n pursuant to a settlcnlc~nta~geem~nl reac~fied ~etwaen the partic;s amcli~corpc~r~terl into the Plan. WiTminSton
Trust's and Harbcrr's withdra~vals oftheir ~~jecti~ns to

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confirmation

have

been

filed

with

the Court.

See Dkt.

Nos.

19~4

and 1982, respectively

S.

Obieclinn af OTiicjal~ammittce of

Unsecured Crerlilors in Chaxlle-rIl Case nl'Touch ~Lrncrica Holdines. Znc.Ith~'TA Committee"') to Debtor's First Amended P1;Ln Reor~anizali~n. The TA Cornrnirtcc objected to the pjrst af Amended Plan to the exte~t that it enjoined, limited or released any rights, claims or interests held ~y tRe TA Debtors that rnay ~z~nse under any ollh~ D&O Policies and does not release any
cIaims ~e TA L~~tors may hold against any D&O Protected Party to the extent that such claim is against an inrlivid~al in his or her

capacity as a former director or officer of ~·y o rth8 TA aebto rs or their present or fonner affiliates or predecessors. The S~crsnd
A~ncndcd Plan provides that die D&O Lnsurance Entity ~njuncti~~ shall not enjoin any rights ofthe TA Debtors that may anse under any of the D&O Policies, See Plan, ~ B.g~c). The Second

Amended Plan also provides that "Dd~O Protecterl Parry" shall

exclnde any individual who previously served as an of~cer or
director of any of the TA Debtors, or their present or former

predecessors, in suc'n individual's capacity as an officer or director
of such TA Debtor. See Plan, I~~.45). The C~urt hereby finds that

the objection has been rcs~]vecl pursuant to revisions made to the
Second Aznended Plan and the objectron is overmled.

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6.

Limited O~isctio~ ofT~u~h America

HE~ldinas.~c.. ct al.. nahtors in Possessio~~.to D~l~tM's F;rst Amended Plan of Reoy~p;aniz~tion Und~r~hantcr 11 of the B~m~1Ptcv Code TDkt.~o. ~&721. The TA Debtors object to the Plan Luthe extent that it limits the TA Debtors' a~bility ~c~ive to distributions as a Class 4 clarm;mt on a~cu~mlofl~B portion ofits
clai~ns classified as general unsecured claims. Section 1.35 ofthe

Plan prrsvidcs that to the e~ctrmt creditor holds a claim that is not a
an Abnlinistrati~e Claim, Fee Claim, Pnority Tax Claim,

Unsecured Yriority Clairn, Bank One 1)~ Finan~in~ Claim, CSFR

rinancing Claim, Secured Claim, Unsecured ~ote CI~m,
Unsecured Subordinated ~ote Claim, Unsecured C~1-rveni~rrce

Claim, n&o Tnwt Claim, Other Equity Tn~t~esl,Securities Claim,
Opt-Out Securities Claim or Envirrounental Claim, such claim

shall be a G~nexaX ~L-~sccured Clium. 'fhe TA Debtors objection also sought to ensure that the Disputed C3laimReserve was adequate to pay any potential Class 3 or Class TZclaims asserted
by the TA Debtors. The Court hereby finds that pursuant to

Section r.9$ of the Plan, to the extent the TA n~b~Ts hold a~~
Allowed receive General Unsecured Claim under the Plan such claim shall Unsecured Claim. Tha

distributions

as a Class 9, C~ner~

Cuufl;llso finds that Sections 7.5 and 7.~ ol~the Plan provides for the Disputed Claim Resz~e andPrOcedures for distributions to

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Disputed Claims that becr,me AlluwetJ.Claims. hcc~rdingIy, the
Court finds that the objecti~n of the TA nebtors has I~e~n ~sol·verl

or is addressed hy Sections 7.5 and 7.6 ofthe Plan. 7~
Clonfinnation ofthe

Ljmited Obiection of Richard R. Hvlland to
Debtor's First Am~nded plan of

Rcorcanization Under Chanter 11 ofthe Bankruatcv Code ~the Hvlland Ohicction"l. The Hylland O~jection objects to Szclioll 1~.1 cl~tht:Plan which provides that the
Bankruptcy Court wiI1 retain exclusive junsdiclion of all

matters;irising out of, and related to, the Chapter 11 Case and the Plan. ESxcludingthe arbitration yroceedings ini~ial~d b~ Hylland ;md currently sl~Z,
proceedin~

whic~

will be permitteci to proceed once the

a~to~natic stay is dissolved, the Court ]Ir;rebyfi~ldsthat ~~·ntinuingjurisdiction, as Fr~vidcd for In the Plan, is
app~priatc, necessary and consistent with applicable law.

The Hylland Ob~cction also
asserts that Section 1D.S of~~he First nmemdod Plan

impermissibly

impairs Hylland's setoffri~hts.

Section

10.S~f~(;ii) of rite Second Amended Plan provides that
"~a]~orYri~hstandi~~ any provision ofthis Plan to the

contrary, this Plan: .., (iii) dlall not affect any setoff

~rr;rnnrnj·4.Y

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rights, it any, o~Ric~d

Hylland." ~le Court hereby finds

that the langua~e in Section 10.S~l>)(iii) resolves this
portion of the l~lylland Objection and such objection is
overruled

c.

The H)rlland Objection also

objects to the Plan to the extent tl~at the Plan does not provide that claims not paid by tl~~~~O Tiust receive tl~e

treatment provided to Class 7 and C1~S.r; The Cou~t tinds 9~
that Section ~24(e) of the nimkruptcy Code does nol limit

the equitable power of the Court to enjoin suits against third parties where the injunction is necessary to the plan and workable rcorgani2ation. Based upon tile pleadings
filed in connection nrith. the Class Action settlement, the

provisions of the Plan atld ·t~e support of the Creditors'
Committee and other parties-in-interest, including the

MPSC, the Court finds that the Plan ~resents

a Sl~b;il

agreement ~tnt~nS the parties in this case, premised on all

of the mutually intcrdcpcndcnt elements, includ ing the formatiw a~d ~i~ndingofthe D&O Trust and the T)&0 Ir?junctions necessary to rmp]em~n~~e Dc~O Trust. See Memaratlc~umDecision Approving the Class Action
Settlement [I)kt. No. 21751 and Order App-rovrng the Stipulation and Settlement ~L~Teement Am~ng Debtor,

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Montana

Yriblic

Seriiice

Conlnlission

and Monta~a

Consumer Counsel Pursu;mt: to Sections 10SIa) and ~12~~a)(4) ~~~he BanbuI~lcy Code and Rule 9019 oi' the

Bankruptcy Rules LDkt.No. 1706]. Up~n consideration o~
the pr~visions of tl~e Second Aznended Plan, the n&0 Trust ~oclrmcnts ;uld the ar~uments and evidence Hcarin~, the Court overrules

presented at the Confirmation

Hy]land's T~bjecliun finding that l~e X)~bt~r's LrahsE~tr afits
interest in the insurance policies to the D&O Trust as provided in Section 5.6 ol' the Second hmcndcd Plan and

the Insurance Assi~nment Agre~n~~nt· p~uidas su~i~ienl
and adequate consideration for the c~a~mding injunction,

that the DStO ?'rust is properly capitali~ed and that limiting

the recovery on D&O Claims to the D&O Trust provides
fair and adeqnatc treatment to D~O Trust Claimants who
have r~ccived the henel~t ol' the releases set rotr~ in

Sections 6.9 and 11).5IG)ofthc Plan and C~ass Rction Settlernent Dccuumcnts, as cansidcrati~n
the D&O Policies

for the transfer ~~

to the D&O Trust and the D&O Trust

Channeling Tnjuncliun. The Cisurt finds the nehtor's arymcnt that the Erst in, Cirstout ("F~FQ) method of
dish-i~ut~i~n is c~nsistent with the distribution of DcBO

insurance policy proceeds being utilized to fund the D&O

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Trust persuasive and hcrc~y finds that access to the D&0

Trust as the only remedy available to a Director or Officer
for reimburse~n~nt of costs and related in~eM~j r~CBtio~

claims is appropriate, necessary and consistent with the Bankruptcy Code. Therefore, the Hylland Obje~tia~ to the injunctions provided in the Plan is hereby overruled.
d. The Hylland Ol~jeclinn also

objected to the Debtor's agrccmcnt to contribute up to $2.5
milfon to pay Defense Costs incurred by current OITicers and Directors only tin the event the D&O Trust is

exhauslacl). The Debtor has p~essnt~d cvidcrrce that t~ht a~eement to cwtsibut~ up to S2.5 million to p~ Defense Costs incurred hy current Officers imd Directors is in
reco~r~nition ofthe I)ebtor' s statutory and contractual

indemnity rsE>li~afions its curre~ltOfficers and Directors, to
and additional ~~nsidm~ti~n to the current Officers and

Dirpctors ~vho have continued to serve the Debtor durin~

this Clnaptcr 11 ~asc. Upon consideration of the ar,I~runents ;Ind evidence, the Court declines to accept the objector's position. The Court hereby finds that Se~tion 5.1 ofthc Plan is appropriate and consistent rvith all applicable lapis, and the Hylland O~t~jection the allocation ofthe 52.5 to nlillion to pay Dcfi3nscCosts incurred by curr~t Officers

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and Directors only in the event tl~en$0
is avenuled.

Tr~st is exhausted

e.

The H5;11~d Objection urged

the Court to ~ind that to the extent his elairns are classified

as a Class 9 claim, Mt. Hylland's claims related to the D&O Proceedin~s are not properly classified and ate bdng
excludtd from the D&O Trust. Tt~e svidsnce clearly sl~~ws that,Mr. Wylland's claims are properly cla~9ified and Mr.

Hylland received ballots for both Class 9 and Class 12 claims, hut 07114' return~d the Class 9 tsal~t. Sec

Declarationof Voting Agent R~ardiry Ballots o1'Richard
R. H~land in C~nection ·rvi~h Dehtor'g First Amended
Plan of Reorganization [Dkt. No. 2037]. Moreover, the

P1~TI provides in Section 4.9 to the extent that Mr. Hyland
holds Class 3 Claims that are not X)&O Trust Claims and

are ultimately determined to he Allow~d General
Unsecured Claims, Mr. Hylland tvill receive tl~t same

treatment as any dt]l~r holder o~an Rllowcd Class 9 Claim. Based on the evidence Presented, the Court declines to ~ccept Mr. Hylland's arguments and hereby overrules the Hylland Obje~tI~ alleging improper classificati~n, Based on the arguments of counsel and the evidence presented
and a-her due delih~tio~, the Court hereby finds that

hTL']OSI~231~

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Section 4.9 of the Plan pro~idas tl~atthe portion rsf~lr.

~lylland's Claims that may qualiTyas an Allowed D~LO
Trust Claims shall be treated as DrPGD Trust Claims and

channeled to t~e D~O Trust and the portion ofMr IIylland's Cizllms that may be determined to be an All~wed
Class 9 Claim shall be treated as a ~lass 9 Claim.

8.

Obiccti~n of C~ldmEln.Sacl~ & Co. ofDebtor's First Amended

~"Galdman Sachs") to Canfi~atian

Plan ofReo~.~~;l~i;·.~tian TDkt.No. 17951 and Obiection ofMilbank. Tweed, Harllev~&MC~C~~ou ~~yIilbank Tweed"S to the I;LP
nehtor's Secn~ Amended Disclosure Statement TDkt. ~. 18861

~the'L~tlil~a~k Ol~iecti~n'~.G~ldmanSnchs and h~lilbank T~veed
f;loZ similar objections asserting that to fhe extent that the ~I)~0 ~ntst Cbsu~nelinl:In~u~ction could he constnr~d to impair their n~hts ~ajnsl non-r)elrtar parties such Injuncti~n was impro~er.

Section 1I~.9 the Plan provides that the Plan shall not enjo;n, of
release or otherwise impair pl~ cl~im ofGoldrnan Sachs or Mi~ank Tweed against any pers~ or entity other than the Debtor and the Reor~ani~ed Debtor ur otherwise limit any defense, setoff,
counl~cla;m or cross claim either Goldman Sachs or i~lilbank

T~veed may hai;e a~ainst any wtity, excepl that any recovery by
Golrlman Sacl~s and Mil~t~ank TWccd on such counterc~aim Or cross

claim a~ainst the Debtor or Reorgani2cd Debtor shall be limit~i hy

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the Plan. T;pon consideration of the evidence and the revisions to the Plan, the CUllrL hereby Iinds that the objections have been resolved and are hereby overruled. The ~i~ilbankObjection also nsserts that the Plan cannot determine ~he91~c~ MPC the P~lici~s are part ofthe Debtor's estate. First, the insurance rolicics whose proceeds are sub~ject to the Insur;mce Assignment Agre~ment do not include the ~iIPC Policies. See Lnsursu~ce Assignment Agreement, Exh. A. Second, the neblor has ackrrowledged t;l~at interests in I~e its

MPC Policies are disputed. See Plan, Exh. ~. ~uicsreovex, the extent the McC;rcevcy to Litigation settlementis i~I)w""d, the De'rstor be transferring and assigningits rights and interest In t~t will
MPC Policies, Ksith~r the Platl nor tllis Confirmatian Order seek to determine whether the MYC

policies are part of the Debtor' s estate; therefore, MIlb;lnkTweed's objectionregarding the MPC
Policies is overruled.

II.

Obiection of the Uni ~edStales of Rmcrica to

ConTrrmation of the Debtor's First Amendet~ Plan o~

Reorranization dated May 17, 2008 TDkt. No. 18971. TheUnited Statss of~mcrica Itlle "Unit~d States") asserts that the Debtor owes ~disputed pre-petition and post-petition fees mlder certain perrnits with the United States Department ~f~i~gricu]twe,Forest Service. The Debtor haS represented that it intends to assume the obli~aliolls related to the permits. See Notice of Conftacls the Debtor Intends to Assum~ i~t~ot Reject Pursuant to Section IV.F
oft'ne Debtor's ~:irst Amended Disclosure Statement Pursuant to

Section 1 125 ofthc Batlkrugtc>rCode for the Plan of

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Re~rgsnization which indicated its inttnt to perform the: obligations related to the permits [Ukt. ~o. 1700] (the "R_ss~lntion Notice''). The United States also filed an objection
to prctselve its ~id~ts in the event there is a dispuii: r~g~rctinB the

terms ~ftl~e assumption of certain contracts wit~ the rS~nncvilfe
Power Administration. ~e r)ebtor has filed a Omn~bus Motion

for Court approval to Assunle Certain Ex~cut~i, Contracts
Pursuant to Section 365 of the Bankruptcy Code and Gmuting

Related Relief [Dkl. No. 2108] (the "Ass~imntiun Motion"). M~r~sver, in Section 8.1 of ~hePlan, the Debtor provided a procedure to c~~ject the cure amounts as pr~vided in the to
Assumption Notice. The United States also objected to the ~First

Amended Plan to the extent i-idid not preserve t~e ~lnit~d States' common larv rjght to seloffmutual del>ts. The Second Amended Plan provides for Lhr;prescrvati~n of the United States' se~ofl' rights, Plan IjlO.S~t~).Upon consideration of the o~t~jcctioln, the
e~denc~ presented and representations of counsel, the Cc>utt

hr;reby finds that t~e objections of the United Stales have be;en full5~resolved. 10. O'uiection of Montana P~e~ Benefit

Restot;ltion Plan Partieinants Ithe "BRP Particinalr~s"l to Debtor)s
First Amended Plan of ReuT~anizatlon ~21~·er~h~nter 1 1 ol' the

Bankruptcy C~de; TDkt. ~o. 13531. The RRp Participants assert

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that the Montana Porver Benefit Restoration Plan (the ;~")

is

not an executory contract that can be reJ e~ted. As of the continued C~niirmation Hearing, no motion is hcfore the Court se~kinL~ to rEject the BRP. The BRP Participants also obje~ted to the implement~ti~n of the provisions of t~hePlan regarding the
establislunent of the Disputed Claims Reserve because the Debtor

made inadequate provision for the manner and timing of estat~lishing reserves for Disputed Clan-ns. All ngh-ls of the Debtor
and tl~e BRP Participants, including the one I3RP Particip;lnt

seeking relie~` assert a late-filed claim, and suc~ relief is ~anted to herein, are resmvcd;ind the puli~ics at issue shall not he affected or f~rminaled wi~olrz f~rt~ order oTthis Court. Accordingly, the

o~i ection of the BRP Participants is overruled in its enti~~y-

Obiection of the Eauitv Ilolders." The Equity Objections urge the Court to find that the Plan
violates the absc~lnte priority wle b~cause Class 13 s~~eholdws are recovering substan~~lly less

than the value of their cyuity interests.

'T~e testimony elicited bq· the De'otor and the Creditors' Committ~e at the August 25, 2004 Confirmation Hearing support the treatrnent afforded to the Equrty Holrlers as w~ll as Class X~t~. As discussed in ~eater detail below, this Court finds persuasive
2Tire follolvingobjectionsrverefded by various eqaity bolders: ~i)Objection to Plan ofRCF CarparhiaM~tF~
Fund, Ltd, and KeUagg Capital Gr~~p, LLC f;:k!aYerforr~sJlct Capital Itbe '~I~suiN ~I~~ders~ to Debtor's first Ar~nded Plan ~fRe~rganizat~ion (Dkt. No. 1797) and ~ii) Objection ~fDavid Fishel to ]C~btor's Fjr~t ~Tncndcd PlaTI of ReorganLration and Joinder of David Fisbel to Obie~tiw of RCG Ca~athia M;wte~ Fs~n, T~ a~d Kcllu~ ~:apital r3ronp, LLI: f~l~a PcrfrmTlance Capitnl to Dcbtnr's ~ir~t hmendcd P'tan of Rcor~ni2ati~ IL)kt. No. 1800) ~cril~cEfivcly, "EQuityFlhjcctions''). the

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the testimony and evidence presented hy the Debtor and the Crcdit~rs' Committee regarding valuation and, as such, the Plan complies with the "at~st~lutepnc~rityrule" set f~rtl~in Section 1 124~(2) heca~ there are no ~laimantsjunjor to ci~t~er Equity

Holders or Class 8~~s) will receive M retain any property under that
the Ellan. Sec 11 U.S.C. $ 1129Cb)(2)~B)~i). ~uiore~vc