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ETOYS INC
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8-K
Aug 20, 3:04 PM ET
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ETOYS INC 8-K
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Contents
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1. Administrative Claims
2. Priority Tax Claims
3. Fee Claims
4. Indenture Trustee Claims For Distribution Services
5. Class 1: Priority Non-Tax Claims
6. Class 2: Secured Claims
7. Class 3: Convenience Claims
8. Class 4A: Senior Unsecured Claims
9. Class 4B: Note Claims
10. Class 4C: Other Unsecured Claims
11. Class 5: Intercompany Claims
12. Class 6: Interests
Pursuant to the Plan, on the Effective Date, the authority, power and incumbency of the Persons then acting as directors, officers or managing members of the Debtors shall be terminated, such directors, officers and managing members shall be deemed to have resigned and such directors, officers and managing members shall be released from any responsibilities, duties and obligations that arise on or after the Effective Date to the Debtors or their creditors under the Plan or applicable law.
Also on the Effective Date, the Plan Administrator shall be appointed and shall succeed to such powers as would have been applicable to the Debtors’ general partners, limited partners, officers, directors and shareholders, and the Debtors shall be authorized to be (and, by the conclusion of the winding up of their affairs, shall be) dissolved. All other property of the Estates not distributed to the Holders of Claims on the Effective Date including, without limitation, any moneys held in escrow or separate segregated accounts during the pendency of the Chapter 11 Cases, shall be managed by the Plan Administrator and shall be held in the name of the Reorganized Debtor free and clear of all Claims against and Interests in the Debtors, except for the rights to Distribution afforded to Holders of Claims under the Plan. The Plan Administrator shall make the remaining Distributions required under the Plan in accordance with the Plan’s terms. After the Effective Date, the Debtors, the Reorganized Debtor, the Plan Administrator, the Creditors’ Committee and the PEDC shall have no liability to Holders of Claims or Interests other than as provided for in the Plan. The Plan will be administered and actions will be taken in the name of the Reorganized Debtor through the Plan Administrator irrespective of whether any of the Debtors have been dissolved.
Pursuant to section 1146(c) of the Bankruptcy Code: (i) the issuance, transfer or exchange of any securities, instruments or documents; (ii) the creation of any other Lien, mortgage, deed of trust or other security interest; or (iii) the making or assignment of any lease or sublease or the making or delivery of any deed or other instrument of transfer under, pursuant to, in furtherance of or in connection with, the Plan or the sale of any assets of the Debtors or the Plan Administrator, including any deeds, bills of sale or assignments executed in connection with the Plan or the Confirmation Order, shall not be subject to any stamp tax, transfer tax, intangible tax, recording fee, or similar tax, charge or expense to the fullest extent provided for under section 1146(c) of the Bankruptcy Code.
The Plan further provides that each of the asset sales entered into by the Debtors during the Chapter 11 Cases and approved by the Bankruptcy Court pursuant to section 363 of the Bankruptcy Code was a sale in contemplation of the Plan and, therefore, all such actions taken pursuant to such sales are entitled to the exemptions provided for under and to the fullest extent permitted by section 1146(c) of the Bankruptcy Code.
The Plan requires each Holder of any Claim against or Interest in the Debtors to surrender to the Plan Administrator any Note, instrument, document, certificate, subordinated note, agreement, certificated security or other item evidencing such Claim. The Plan prohibits Distribution to or on behalf of any Holder of a Claim unless and until such Holder surrenders
All Old Common Stock of any of the Debtors, the Notes and any other note, bond, indenture or other instrument or document evidencing or creating any indebtedness or obligation of any of the Debtors shall be deemed canceled on the Effective Date.
To the extent that the Indenture is not an executory contract rejected pursuant to Section 8.1 of the Plan (which rejection shall not give rise to rejection damages or additional Claims by the Holders of the Senior Subordinated Notes or the Indenture Trustee), the rights and obligations of the Debtors, if any, under any indenture shall be deemed canceled pursuant to section 1123(a)(5)(F) of the Bankruptcy Code on the Effective Date, except to the extent that any provisions of the Indenture is expressly incorporated into the Plan or is expressly deemed in the Plan to survive defeasance or termination under the Indenture. Notwithstanding the rejection or cancellation of the Indenture, such rejection or cancellation shall not impair the rights of the Holders of Notes Claims arising under or evidenced by any of the Indenture to receive Distributions on account of such Notes Claims under the Plan, subject to the Indenture Trustee’s Charging Lien. The Indenture shall continue in effect to the extent necessary to (a) allow the Indenture Trustee to make the Distributions to be made on account of Note Claims under the Plan and (b) permit the Indenture Trustee to maintain its Indenture Trustee Charging Lien against any Distributions received by the Indenture Trustee.
Except as otherwise specifically provided in the Plan or in any agreement, instrument or document created in connection with the Plan: (i) each Holder of (1) a Secured Claim, (2) a Claim that is purportedly secured and/or (3) a judgment, personal property or ad valorem tax, mechanics’ or similar Lien Claim, in each case regardless of whether such Claim is an Allowed Claim, shall, on or immediately before the Effective Date and regardless of whether such Claim has been scheduled or proof of such Claim has been filed: (y) turn over and release to the Estates or the Plan Administrator, as the case may be, any and all property of the Debtors or the Estates that secures or purportedly secures such Claim, or such lien and/or Claim shall automatically, and without further action by the Debtors, the Estates or the Plan Administrator, be deemed released; and (z) execute such documents and instruments as the Plan Administrator requires to evidence such Claim holder’s release of such property or Lien, and if such holder refuses to execute appropriate documents or instruments the Plan Administrator may, in his or her discretion, file a copy of the Confirmation Order which shall serve to release any Claim Holder’s rights in such property; and (ii) on the Effective Date, all right, title and Interest in such property shall revert to the Debtors or the Estates, free and clear of all Claims and Interests, including, without limitation, Liens, escrows, charges, pledges, encumbrances and/or security Interests of any kind.
Without limiting the automatic release provisions of the immediately preceding paragraph: (i) no Distribution under the Plan shall be made to or on behalf of any Claim Holder unless and until such Holder executes and delivers to the Debtors, the Estates, the Reorganized Debtor or the Plan Administrator (as applicable) such release of liens or otherwise turns over and releases such Cash, pledge or other possessory liens; and (ii) such holder that fails to execute and deliver such release of Liens within one hundred and eighty (180) days after the Effective Date shall be deemed to have no Claim against the Debtors or the Estates or their assets or property in respect of such Claim and shall not participate in any Distribution under the Plan.
Pursuant to the Plan, on the Effective Date, all executory contracts and unexpired leases of the Estates shall be rejected by the Debtors pursuant to the provisions of sections 365 and 1123 of the Bankruptcy Code, except: (i) any executory contract or unexpired lease that is the subject of a separate motion to assume or assume and assign filed pursuant to section 365 of the Bankruptcy Code by the Debtors before the entry of the Confirmation Order, provided, however, that upon denial or withdrawal of any such motion, such executory contract or unexpired lease shall automatically be rejected as if rejected under the Plan as of the Effective Date; (ii) any executory contract or unexpired lease assumed or assumed and assigned by order of the Bankruptcy Court entered before the Confirmation Date and not subsequently rejected pursuant to an order of the Bankruptcy Court; (iii) any executory contract or unexpired lease listed on the Executory Contract Schedule; and (iv) any agreement, obligation, security interest, transaction or similar undertaking that the Debtors believe is not an executory contract or lease that is later determined by the Bankruptcy Court to be an executory contract or unexpired lease that is subject to assumption or rejection under section 365 of the Bankruptcy Code, which agreements shall be subject to assumption or rejection within 30 days of any such determination. The Confirmation Order shall constitute an Order of the Bankruptcy Court approving the assumption, assumption and assignment or rejection, as applicable, of any contract or lease assumed, assumed and assigned and/or rejected pursuant to the Plan. Any order entered after the Confirmation Date by the Bankruptcy Court, after notice and hearing, authorizing the rejection of an executory contract or unexpired lease shall cause such rejection to be a prepetition breach under sections 365(g) and 502(g) of the Bankruptcy Code, as if such relief were granted and such order were entered prior to the Confirmation Date.
On the Confirmation Date, and subject to the occurrence of the Effective Date, the executory contracts and unexpired leases, if any, listed on the Executory Contract Schedule shall
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(a) If the proposed amount at which the Disputed Claim to be allowed is less than or equal to $1,000,000, the PEDC or the Plan Administrator, as appropriate, shall be authorized and empowered to settle the Disputed Claim and execute necessary documents, including a stipulation of settlement or release, upon (i) the Plan Administrator or PEDC’s receipt of the consent (such consent not to be unreasonably withheld) of the of the PEDC in the case of a settlement by the Plan Administrator or the consent of the Plan Administrator in the case of a settlement by the PEDC or (ii) or Court approval of such settlement; and
(b) If the proposed amount at which the Disputed Claim is to be allowed is greater than $1,000,000, the PEDC or the Plan Administrator shall be authorized and empowered to settle such Disputed Claim and execute necessary documents, including a stipulation of settlement or release, only upon receipt of Court approval of such settlement.
(a) If (i) the total amount in controversy in connection with a Litigation Claim to be settled is less than $500,000 (i.e. the total amount the PEDC or Plan Administrator seeks to recover on behalf of the estate, exclusive of costs, attorneys’ fees, expenses and punitive damages, is less than $500,000), (ii) a proceeding has been commenced with respect to such Litigation Claim in any Court and (iii) the proposed settlement of the Litigation Claim involves solely the payment in Cash to the Reorganized Debtor of an amount not less than fifty percent (50%) of the total amount in controversy in connection with such Litigation Claim, then the PEDC or Plan Administrator, as the case may be, shall be authorized and empowered to settle the Litigation Claim and execute necessary documents, including a stipulation of settlement or release, upon (x) the Plan Administrator or PEDC’s receipt of the consent (such consent not to be unreasonably withheld) of the of the PEDC in the case of a settlement by the Plan Administrator or the consent of the Plan Administrator in the case of a settlement by the PEDC or (y) or Court approval of such settlement; and
(b) if the settlement of a Litigation Claim at issue is not one that complies with the foregoing requirements, then the PEDC or the Plan Administrator, as the case may be, may settle such Litigation with the approval of the Bankruptcy Court pursuant to Bankruptcy Rule 9019.
Under the Plan, any property or notice which a Person is or becomes entitled to receive pursuant to the Plan may be delivered by regular mail, postage prepaid, in an envelope addressed to that Person at the address indicated on any notice of appearance filed by that Person or his authorized agent prior to the Effective Date. Except as otherwise provided in Section 11.3 of the Plan, if no notice of appearance has been filed, notice shall be sent to the address indicated on a properly filed proof of Claim or, absent such a proof of Claim, the address set forth in the relevant Debtors’ Schedules of Assets and Liabilities for that Person. Property distributed in accordance with the foregoing procedures shall be deemed delivered to such Person regardless of whether such property is actually received by that Person.
Any Cash payment to be made by the Disbursing Agent pursuant to the Plan will be in U.S. dollars and may be made, at the sole discretion of the Plan Administrator, by draft, check, wire transfer, or as otherwise required or provided in any relevant agreement or applicable law.
Any payment or Distribution due on a day other than a Business Day shall be made, without interest, on the next Business Day.
Notwithstanding anything in the Plan to the contrary, no Holder of any Allowed Class 4A, 4B or 4C Claim in an amount that would entitle such Holder to a Ratable Distribution of less than $10.00 shall receive any Distribution on account of such Allowed Claim.
A. General
B. Federal Income Tax Consequences To Holders Of Claims.
C. Information Reporting And Backup Withholding.
D. Importance of Obtaining Professional Tax Assistance.
Article II.
METHOD OF CLASSIFICATION OF CLAIMS AND INTERESTS AND GENERAL PROVISIONS
Article III.
UNCLASSIFIED CLAIMS
Article IV.
CLASSIFICATION, TREATMENT AND VOTING OF CLAIMS AND INTERESTS
Article V.
IMPLEMENTATION
(a) Continued Existence. The Reorganized Debtor shall continue in existence after the Effective Date to (i) complete the Transfer of the Debtors’ assets in such a manner as is reasonably likely to maximize the Distributions available for Holders of Allowed Claims, (ii) distribute the Proceeds from such Transfers in accordance with the provisions of the Plan, (iii) enforce and prosecute Litigation Claims, claims, defenses, interests, rights and privileges of the Debtors and their Estates and the Reorganized Debtor, (iv) reconcile Claims and resolving Disputed Claims, (v) administer the Plan, (vi) file appropriate tax returns and (vii) take such other action as may be necessary or appropriate to effectuate the Plan. As soon as reasonably practicable after the Effective Date, but subject to the completion of its other duties under the Plan, the Reorganized Debtor shall complete the Transfer of all of the Debtors’ assets and make Distributions of all of the Debtors’ assets in accordance with the terms of the Plan.
(b) Discontinuation of Business, Liquidation and Dissolution of Reorganized Debtor. Except as specifically provided in the Plan, the Reorganized Debtor intends to cease any remaining operations as soon as reasonably practicable after the Effective Date. Upon the Distribution of all of the Debtors’ assets pursuant to this Plan and the filing by the Plan Administrator of a certification to that effect with the Bankruptcy Court, the Reorganized Debtor shall be dissolved for all purposes without the necessity for any other or further actions to be taken on behalf of such entities or payments to be made in connection
therewith. From and after such date of dissolution, the Reorganized Debtor (i) for all purposes shall be deemed to have dissolved and withdrawn its business operations from any state or country in which it was previously conducting, or is registered or licensed to conduct, its business operations, and shall not be required to file any document, pay any sum or take any other action, in order to effectuate such withdrawal and (ii) shall not be liable in any manner to any taxing authority for franchise, business, capital, license or similar taxes accruing after such date.
(a) Directors and Officers. On the Effective Date, the authority, power and incumbency of the Persons then acting as directors, officers or managing members or partners of the Debtors shall be terminated, such directors, officers or managing members or partners shall be deemed to have resigned and such directors, officers and managing members or partners shall be released from any responsibilities, duties and obligations that arise on or after the Effective Date to the Debtors or their creditors under the Plan or applicable law.
(b) Succession by Plan Administrator. On the Effective Date, the Plan Administrator shall be appointed and shall succeed to such powers as would have been applicable to the Debtors’ general partners, limited partners, officers, directors and shareholders, and the Debtors shall be authorized to be (and, by the conclusion of the winding up of their affairs, shall be) dissolved. All other property of the Estates not distributed to the Holders of Claims on the Effective Date including, without limitation, any moneys held in escrow or separate segregated accounts during the pendency of the Chapter 11 Cases, shall be managed by the Plan Administrator and shall be held in the name of Reorganized Debtor free and clear of all Claims against and Interests in the Debtors, except for the rights to Distribution afforded to Holders of Claims under the Plan. The Plan Administrator shall make the remaining Distributions required under the Plan in accordance with the Plan’s terms. After the Effective Date, the Debtors, the Reorganized Debtor, the Plan Administrator, the Creditors’ Committee and the PEDC shall have no liability to Holders of Claims or Interests other than as provided for in the Plan. The Plan will be administered and actions will be taken in the name of the Reorganized Debtor through the Plan Administrator irrespective of whether any of the Debtors have been dissolved.
support services incurred by the Creditors’ Committee subsequent to its dissolution on the Effective Date;
(a) Pursuant to section 1146(c) of the Bankruptcy Code: (i) the issuance, transfer or exchange of any securities, instruments or documents; (ii) the creation of any other Lien, mortgage, deed of trust or other security interest; or (iii) the making or assignment of any lease or sublease or the making or delivery of any deed or other instrument of transfer under, pursuant to, in furtherance of or in connection with, the Plan or the sale of any assets of the Debtors or the Plan Administrator, including any deeds, bills of sale or assignments executed in connection with the Plan or the Confirmation Order, shall not be subject to any stamp tax, transfer tax, intangible tax, recording fee, or similar tax, charge or expense to the fullest extent provided for under section 1146(c) of the Bankruptcy Code.
(b) Each of the asset sales entered into by the Debtors during the Chapter 11 Cases and approved by the Bankruptcy Court pursuant to section 363 of the Bankruptcy Code was a sale in contemplation of this Plan and, therefore, all such actions taken pursuant to such sales are entitled to the exemptions provided for under and to the fullest extent permitted by section 1146(c) of the Bankruptcy Code.
Article VI.
SUBSTANTIVE CONSOLIDATION
On the Effective Date or as soon thereafter as is practicable, (a) each of the Affiliate Debtors shall be deemed merged with and into eToys and (b) the Chapter 11 Cases of the Affiliate Debtors shall be closed, following which any and all proceedings that could have been brought or otherwise commenced in the chapter 11 case of any Affiliate Debtor shall be brought or otherwise commenced in eToys’ Chapter 11 Case.
Article VII.
EFFECT OF THE PLAN ON CLAIMS AND INTERESTS
(a) Surrender of Securities. Each Holder of any Claim against or Interest in the Debtors shall surrender to the Plan Administrator any Note, instrument, document, certificate, subordinated note, agreement, certificated security or other item evidencing such Claim. No Distribution hereunder shall be made to or on behalf of any Holder of a Claim or Interest unless and until such Holder surrenders such items to the Plan Administrator, or demonstrates the non-availability of such items to the satisfaction of the Plan Administrator, including requiring such Holder to post a lost instrument or other indemnity bond, among other things, to hold the Debtors, the Reorganized Debtor and the Plan Administrator harmless in respect of such instrument or other item described above and any Distributions made in respect thereof. Any such Holder that fails to surrender such items described above or satisfactorily explain their non-availability to the Plan Administrator within 180 days of the Effective Date shall be deemed to have no further Claim against or Interest in the Debtors, the Reorganized Debtor, the Plan Administrator or their property in respect of such Claim or Interest and shall not participate in any Distribution hereunder, and the Distribution that would otherwise have been made to such Holder shall be treated as Unclaimed Property. Notwithstanding the immediately preceding sentence, any such Holder of a Disputed Claim or Disputed Interest shall not be required to surrender such items until the time such Claim or Interest is allowed or disallowed.
(b) Cancellation of Stock/Instruments. All Old Common Stock of any of the Debtors, the Notes and any other note, bond, indenture or other instrument or document evidencing or creating any indebtedness or obligation of any of the Debtors shall be deemed canceled on the Effective Date.
(c) Cancellation of Indenture. To the extent that the Indenture is not an executory contract rejected pursuant to Section 8.1 hereof (which rejection shall not give rise to rejection damages or additional Claims by the Holders of the Notes or the Indenture Trustee), the rights and obligations of the Debtors, if any, under any indenture shall be deemed canceled pursuant to section 1123(a)(5)(F) of the Bankruptcy Code on the Effective Date, except to the extent that any provisions of the Indenture is expressly incorporated into the Plan or is expressly
(a) Satisfaction of Claims and Interests in any Debtor. The treatment to be provided for respective Allowed Claims against or Interests in the Debtors pursuant to the Plan shall be in full satisfaction, settlement and release of such respective Claims and Interests.
(b) Waiver of Claims. As of the Confirmation Date, but subject to the occurrence of the Effective Date, and except as otherwise expressly provided in the Confirmation Order or herein, all Persons who, directly or indirectly, have held, hold or may hold Claims against or Interests in the Debtors shall be deemed, by virtue of their receipt of Distributions and/or other treatment contemplated under the Plan, to have forever covenanted with the Debtors, the Reorganized Debtor, the Plan Administrator and with each of the Released Parties to waive, release and not to (a) sue, or otherwise seek any recovery from the Debtors, the Reorganized Debtor, Plan Administrator or any Released Party, whether for tort, contract, violations of federal or state securities laws, or otherwise, based upon any act or occurrence or failure to act taken from the Petition Date through the Effective Date arising out of the business or affairs of the Debtors, or (b) assert any Claim, obligation, right, cause of action or liability which any such Holder of a Claim against or Interest in the Debtors may be entitled to assert, whether known or unknown, foreseen or unforeseen, existing or hereafter arising, based in whole or in part upon any act or omission, transactions or the occurrence taking place from the Petition Date through the Effective Date in any way relating to the Debtors, the Chapter 11 Cases, or the Plan.
(c) Release of Liens and Perfection of Liens. Except as otherwise specifically provided in the Plan or in any agreement, instrument or document created in connection with the Plan: (i) each Holder of (1) a Secured Claim, (2) a Claim that is purportedly secured and/or (3) a judgment, personal property or ad valorem tax, mechanics’ or similar lien
(d) Debtors’ Releases. Each Debtor hereby waives, releases and discharges all Released Parties from any claim (as such term “claim” is defined in section 101(5) of the Bankruptcy Code) arising from the Petition Date through the Effective Date related to such party’s acts or omissions to act (including, but not limited to, any claims arising out of any alleged fiduciary or other duty) as an officer, director, employee, agent, representative, attorney, accountant, financial advisor or other professional of each relevant Debtor or affiliate thereof, in that capacity. Any such release shall additionally act as an injunction against any Holder of a Claim against or Interest in any Debtor from commencing or continuing any action, employment of process or act to collect, offset or recover any claim that is so released.
(e) Injunction. The Confirmation Order shall provide, among other things, that all Persons who have held, hold or may hold Claims against or Interests in any of the Debtors are, with respect to any such Claims or Interests, permanently enjoined from and after the Confirmation Date from taking any of the following actions (other than actions to enforce any rights or obligations under the Plan): (i) commencing, conducting or continuing in any manner, directly or indirectly, any suit, action or other proceeding of any kind (including, without limitation, any proceeding in a judicial, arbitral, administrative or other forum) against or affecting the Debtors, the Estates, the Reorganized Debtor, the Plan Administrator or any of their property; (ii) enforcing, levying, attaching (including, without limitation, any pre-judgment attachment), collecting or otherwise recovering by any manner
or means, whether directly or indirectly, any judgment, award, decree or order against the Debtors, the Plan Administrator or any of their property; (iii) creating, perfecting or otherwise enforcing in any manner, directly or indirectly, any encumbrance of any kind against the Debtors, the Estates, the Reorganized Debtor, the Plan Administrator or any of their property; (iv) asserting any right of setoff, directly or indirectly, against any obligation due the Debtors, the Estates, the Reorganized Debtor, the Plan Administrator or any of their property, except as contemplated or allowed by the Plan; (v) acting or proceeding in any manner, in any place whatsoever, that does not conform to or comply with the provisions of the Plan; and (vi) prosecuting or otherwise asserting any right, claim or cause of action released pursuant to the Plan.
(f) Term of Bankruptcy Injunction or Stays. All injunctions or stays provided for in the Chapter 11 Cases under section 105 or 362 of the Bankruptcy Code, or otherwise, and in existence on the Confirmation Date, shall remain in full force and effect until all property of the Estates has been distributed and the Reorganized Debtor has been dissolved.
(g) Indemnification. Notwithstanding anything to the contrary in this Plan, the obligation to indemnify the Qualified Debtor Representatives with respect to all present and future actions, suits and proceedings against such indemnified Persons, based upon any act or omission related to service with, for or on behalf of the Debtors at any time during the period from the Petition Date through the Effective Date, in all cases net of applicable insurance proceeds, other than acts constituting willful misconduct or gross negligence shall continue after the Effective Date; provided, however, that unless otherwise ordered by the Bankruptcy Court (which order may be entered at any time) no entity shall be required to reserve for any such obligations and such obligations shall be terminated and discharged upon the closing of these Cases.
(h) Exculpation. The Released Parties (in their capacity as such, and specifically excluding any member of the Creditors’ Committee as a vendor of, or in similar relationship or capacity to, the Debtors) and any property of or professionals retained by such parties, or direct or indirect predecessor in interest to any of the foregoing Persons, shall not have or incur any liability to any Person for any act taken or omission occurring on or after the Petition Date in connection with or related to the Debtors, the Plan Administrator or the Chapter 11 Cases, including but not limited to (i) formulating, preparing, disseminating, implementing, confirming, consummating or administrating the Plan (including soliciting acceptances or rejections thereof); (ii) the Disclosure Statement or any contract, instrument, release or other agreement or document entered into or any action taken or omitted to be taken in connection with the Plan; or (iii) any Distributions made pursuant to the Plan, except for acts constituting
Article VIII.
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
(a) On the Effective Date, all executory contracts and unexpired leases of the Estates shall be rejected by the Debtors pursuant to the provisions of sections 365 and 1123 of the Bankruptcy Code, except: (i) any executory contract or unexpired lease that is the subject of a separate motion to assume or assume and assign filed pursuant to section 365 of the Bankruptcy Code by the Debtors before the entry of the Confirmation Order, provided, however, that upon denial or withdrawal of any such motion, such executory contract or unexpired lease shall automatically be rejected as if rejected hereunder as of the Effective Date; (ii) any executory contract or unexpired lease assumed or assumed and assigned by order of the Bankruptcy Court entered before the Confirmation Date and not subsequently rejected pursuant to an order of the Bankruptcy Court; (iii) any executory contract or unexpired lease listed on the Executory Contract Schedule; and (iv) any agreement, obligation, security interest, transaction or similar undertaking that the Debtors believe is not an executory contract or lease that is later determined by the Bankruptcy Court to be an executory contract or unexpired lease that is subject to assumption or rejection under section 365 of the Bankruptcy Code, which agreements shall be subject to assumption or rejection within 30 days of any such determination. Subject to this Section 8.1 and Section 8.2 below, the Confirmation Order shall constitute an Order of the Bankruptcy Court approving the assumption, assumption and assignment or rejection, as applicable, of any contract or lease assumed, assumed and assigned or rejected pursuant to this Plan. Any order entered after the Confirmation Date by the Bankruptcy Court, after notice and hearing, authorizing the rejection of an executory contract or unexpired lease shall cause such rejection to be a prepetition breach under sections 365(g) and 502(g) of the Bankruptcy Code, as if such relief were granted and such order were entered prior to the Confirmation Date.
(b) Subject to subsection (a) above, the Confirmation Order shall constitute an order of the Bankruptcy Court approving the assumption, assumption and assignment and/or rejection, as appropriate, of executory contracts and unexpired leases the assumption, assumption and assignment or rejection of which is provided for in Section 8.1(a) hereof pursuant to section 365 and 1123 of the Bankruptcy Code and such assumption, assumption and assignment or rejection shall be deemed effective as of the Effective Date.
Article IX.
PROCEDURES FOR RESOLVING DISPUTED, CONTINGENT AND UNLIQUIDATED CLAIMS
Article X.
Article XI.
(a) Any property or notice which a Person is or becomes entitled to receive pursuant to the Plan may be delivered by regular mail, postage prepaid, in an envelope addressed to that Person at the address indicated on any notice of appearance filed by that Person or his authorized agent prior to the Effective Date. Except as otherwise provided in this Section 11.3 of the Plan, if no notice of appearance has been filed, notice shall be sent to the address indicated on a properly filed proof of Claim or, absent such a proof of Claim, the address set forth in the relevant Schedule of Assets and Liabilities for that Person. Property distributed in accordance with this Section shall be deemed delivered to such Person regardless of whether such property is actually received by that Person.
(b) Distributions on Non-Business Days. Any payment or Distribution due on a day other than a Business Day shall be made, without interest, on the next Business Day.
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(c) No Distribution in Excess of Allowed Amount of Claim. Notwithstanding anything to the contrary herein, no Holder of an Allowed Claim shall receive in respect of such Claim any Distribution in excess of the allowed amount of such Claim. Except as otherwise expressly provided herein, no Claim shall be allowed to the extent that it is for postpetition interest.
(d) No De Minimis Distributions. Notwithstanding anything herein to the contrary, no Holder of any Allowed Class 4A, 4B or 4C Claim in an amount that would entitle such Holder to a pro-rata Distribution of less than $10.00 shall receive any Distribution on account of such Allowed Claim.
Article XII.
CONFIRMATION AND CONSUMMATION OF THE PLAN
(b) the Confirmation Order shall be a form and substance reasonably acceptable in form and substance to the Debtors and the Creditors’ Committee; and
(c) the Substantive Consolidation Order, which may be the Confirmation Order, shall be reasonably acceptable in form and substance to the Debtors and the Creditors’ Committee and shall have been approved by the Bankruptcy Court prior to or contemporaneously with the Confirmation Order.
(a) the Debtors shall have sufficient Cash on hand (or investments projected by the Debtors to provide timely Cash) to make timely Distributions of Cash required hereunder;
(b) the Confirmation Order shall be a Final Order and no request for revocation of the Confirmation Order shall have been made or, if made, shall remain pending; and
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(c) the Substantive Consolidation Order, which may be the Confirmation Order, shall be a Final Order and no request for revocation of the Substantive Consolidation Order shall have been made or, if made, shall remain pending.
Article XIII.
ADMINISTRATIVE PROVISIONS
(a) Preconfirmation Amendment. The Debtors, in consultation with the Creditors’ Committee, may modify the Plan at any time prior to the entry of the Confirmation Order, provided that the Plan, as modified, and the disclosure statement pertaining thereto meet applicable Bankruptcy Code requirements.
(b) Postconfirmation Amendment Not Requiring Resolicitation. After the entry of the Confirmation Order, the Debtors or the Plan Administrator, as appropriate, may modify the Plan, with the consent, which consent shall not unreasonably be withheld, of the Creditors’ Committee or PEDC, as appropriate, to remedy any defect or omission or to reconcile any inconsistencies in the Plan or in the Confirmation Order, as may be necessary to carry out the purposes and effects of the Plan, provided that: (i) the Debtors obtain approval of the Bankruptcy Court for such modification, after notice and a hearing; and (ii) such modification shall not materially and adversely affect the interests, rights, treatment or Distributions of any
53
Class of Allowed Claims or Interests under the Plan. Any waiver under Section 12.3 hereof shall not be considered to be a modification of the Plan.
(c) Postconfirmation/Preconsummation Amendment Requiring Resolicitation. After the Confirmation Date and before substantial consummation of the Plan, the Debtors or the Plan Administrator, as appropriate, may, with the consent of the Creditors’ Committee or the PEDC, as appropriate, which consent shall not unreasonably be withheld, modify the Plan in a way that materially or adversely affects the interests, rights, treatment, or Distributions of a Class of Claims or Interests, provided that: (i) the Plan, as modified, meets applicable Bankruptcy Code requirements; (ii) the Debtors obtain Bankruptcy Court approval for such modification, after notice and a hearing; (iii) such modification is accepted by at least two-thirds in amount, and more than one-half in number, of Allowed Claims or Interests voting in each Class affected by such modification; and (iv) the Debtors comply with section 1125 of the Bankruptcy Code with respect to the Plan as modified.
(a) Undefined Terms. Any term used herein that is not defined herein shall have the meaning ascribed to any such term used in the Bankruptcy Code and/or the Bankruptcy Rules, if used therein.
(b) Miscellaneous Rules. (i) The words “herein,” “hereof,” “hereunder,” and other words of similar import refer to this Plan as a whole, not to any particular section, subsection, or clause, unless the context requires otherwise; (ii) the rules of construction set forth in section 102 of the Bankruptcy Code shall apply, unless superseded herein or in the Confirmation Order; (iii) any reference in the Plan to an existing document or Exhibit means
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such document or Exhibit as it may have been amended, restated, modified or supplemented as of the Effective Date; (iv) in computing any period of time prescribed or allowed by the Plan, the provisions of Bankruptcy Rule 9006(a) shall apply; and (v) whenever the Plan provides that a payment or Distribution shall occur “on” any date, it shall mean “on, or as soon as reasonably practicable after” such date.
(a) if to the Debtors, the Reorganized Debtor or the Plan Administrator:
(b) If to the Creditors’ Committee:
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