●
Earnings Feed
Filings
Companies
Insiders
Pricing
Blog
⌘
K
Login
Start Free
ADELPHIA COMMUNICATIONS CORP
|
8-K
May 4, 5:14 PM ET
ADELPHIA COMMUNICATIONS CORP 8-K
Loading document...
Contents
873
ARTICLE I. DEFINITIONS AND CONSTRUCTION OF TERMS
1.01. Definitions. As used herein, the following terms have the respective meanings specified below (such meanings to be equally applicable to both the singular and plural):
1.02. Interpretation; Application of Definitions and Rules of Construction. Wherever from the context it appears appropriate, each term stated in either the singular or the plural shall include both the singular and the plural and pronouns stated in the masculine, feminine, or neuter gender shall include the masculine, feminine and neuter. Unless otherwise specified, all section, article, schedule, or exhibit references in this Plan are to the respective Section in, Article of, Schedule to, or Exhibit to, this Plan. The words “herein,” “hereof,” “hereto,” “hereunder,” and other words of similar import refer to this Plan as a whole and not to any particular section, subsection, or clause contained in the Plan. Unless the context otherwise requires, in this Plan: (a) “including” means “including but not limited to”; and (b) “or” is disjunctive but not exclusive. Except for the rules contained in section 102(5) and 102(8) of the Bankruptcy Code, which shall not apply, the rules of construction contained in section 102 of the Bankruptcy Code shall apply to the construction of the Plan. A term used herein that is not defined herein, but that is used in the Bankruptcy Code, shall have the meaning ascribed to that term in the Bankruptcy Code. The headings in this Plan are for convenience of reference only and shall not limit or otherwise affect the provisions of this Plan. Notwithstanding anything to the contrary herein, no provision of the Plan or the Plan Documents shall (i) constitute a consent or waiver by any Buyer or any Debtor or any of their respective Affiliates under any of the Sale Transaction Documents, (ii) amend, expand, limit, abrogate or otherwise modify the rights, benefits or obligations of any Buyer or any Debtor or any of their respective Affiliates under any of the Sale Transaction
Documents or (iii) entitle any Person (other than the parties thereto) to any rights under the Sale Transaction Documents.
ARTICLE II. TREATMENT OF ADMINISTRATIVE EXPENSE CLAIMS AND PRIORITY TAX CLAIMS
2.01. Administrative Expense Claims. Other than with respect to Administrative Expense Claims that constitute Assumed Sale Liabilities:
(a) Except to the extent that any entity entitled to payment of any Allowed Administrative Expense Claim agrees to a less favorable treatment, each holder of an Allowed Administrative Expense Claim shall receive Cash in an amount equal to such Allowed Administrative Expense Claim on the later of the Effective Date and the date such Administrative Expense Claim becomes an Allowed Administrative Expense Claim, or as soon thereafter as is practicable; provided, however, that (i) Administrative Expense Claims that are Assumed Sale Liabilities shall be Assumed and satisfied in accordance with the applicable Purchase Agreement and (ii) Allowed Administrative Expense Claims representing liabilities incurred in the ordinary course of business by the Debtors in Possession, or non-ordinary course liabilities approved by the Bankruptcy Court, shall be paid in full and performed by the Reorganized Debtors (or the applicable Distribution Company, as applicable) in the ordinary course of business (or as otherwise approved by the Bankruptcy Court) in accordance with the terms and subject to the conditions of any agreements governing, instruments evidencing, or other documents relating to such transactions.
(b) PROOFS OF ADMINISTRATIVE EXPENSE CLAIMS AND REQUESTS FOR PAYMENT OF ADMINISTRATIVE EXPENSE CLAIMS MUST BE FILED AND SERVED PURSUANT TO THE PROCEDURES SET FORTH IN THE CONFIRMATION ORDER OR NOTICE OF ENTRY OF CONFIRMATION ORDER, NO LATER THAN FORTY-FIVE DAYS AFTER THE EFFECTIVE DATE. Notwithstanding anything to the contrary herein, no proof of Administrative Expense Claim or application for payment of an Administrative Expense Claim need be filed for the allowance of any: (i) expense or liability incurred in the ordinary course of the Reorganized Debtors’ businesses on or after the Effective Date; (ii) Claims of the Buyers under the Purchase Agreements; (iii) expenses, liabilities or obligations of the type described in Section 10.04 hereof, and claims for indemnification, contribution, or advancement of expenses pursuant to (1) any Debtor’s certificate of incorporation, by-laws, partnership agreement, limited liability company agreement or similar organizational document or (2) any indemnification or contribution agreement approved by the Bankruptcy Court; (iv) Fee Claims except for Claims of ordinary course professionals; (v) DIP Lender Claims; (vi) fees of the United States Trustee arising under 28 U.S.C. § 1930; (vii) Administrative Expense Claims arising, in the ordinary course of business, out of the employment of individuals from and after the Commencement Date; or (viii) any Administrative Expense Claim arising outside of the ordinary course of business out of the employment of individuals from and after the Commencement Date of
a type (or pursuant to an employee benefit plan) approved by the Bankruptcy Court; provided, however that Retained Claims shall not be included in the Claims described in the foregoing clause (ii), and nothing in this Section 2.01(b) shall excuse any holder of a Retained Claim from any requirement to file a proof of Claim or proof of Administrative Expense Claim with respect thereto, as the case may be. All Claims described in clauses (i), (ii), (iii), (vii) and (viii) of the immediately preceding sentence shall be paid by the Reorganized Debtors or the applicable Distribution Company, as applicable, in the ordinary course of business or pursuant to the applicable Purchase Agreement or other agreement or governing document, as the case may be. DIP Lender Claims shall be paid in accordance with Section 2.04 hereof. Fee Claims shall be paid in accordance with Section 2.02 hereof. Fees of the United States Trustee arising under 28 U.S.C. § 1930 shall be paid in accordance with Section 15.04 hereof. Any Person that fails to timely file a proof of Administrative Expense Claim or request for payment as required by this Section 2.01(b) shall be forever barred from asserting such Administrative Expense Claim against any of the Debtors, the Reorganized Debtors, the Transferred Joint Venture Entities or their property and the holder thereof shall be enjoined from commencing or continuing any action, employment of process or act to collect, offset or recover such Administrative Expense Claim.
2.02. Fee Claims. All entities seeking an award by the Bankruptcy Court of Fee Claims shall (i) file their respective final applications for allowances of compensation for services rendered and reimbursement of expenses incurred through the Effective Date by no later than the date that is ninety (90) days after the Effective Date or such other date as may be fixed by the Bankruptcy Court upon request of the Debtors or the Statutory Committees and (ii) if granted such an award by the Bankruptcy Court, be paid in full in Cash in such amounts as are Allowed by the Bankruptcy Court (A) on the date such Fee Claim becomes an Allowed Fee Claim, or as soon thereafter as is practicable or (B) upon such other terms as may be mutually agreed upon between such holder of a Fee Claim and the Plan Administrator; provided, however, that no ordinary course professional retained pursuant to an order of the Bankruptcy Court shall be required to file any fee application unless required to do so pursuant to such order.
2.03. Priority Tax Claims. Except to the extent that a holder of an Allowed Priority Tax Claim has been paid by the Debtors prior to the Effective Date or agrees to a different treatment, each holder of an Allowed Priority Tax Claim shall receive Cash in an amount equal to such Allowed Priority Tax Claim (including interest, if any, accrued pursuant to Section 8.14 hereof) on the later of the Effective Date and the date such Priority Tax Claim becomes an Allowed Priority Tax Claim, or as soon thereafter as is practicable.
2.04. DIP Lender Claims. All DIP Lender Claims shall be Allowed as provided in the DIP Order. On the Effective Date, each DIP Lender Claim shall be paid in full and complete satisfaction of such Claim in Cash in the amount of such Allowed DIP Lender Claim; provided that (x) outstanding letters of credit issued under the DIP Facility shall be cash-collateralized or supported by back-to-back letters of credit in an amount equal to 110% of the undrawn stated amount of the outstanding letters of credit in accordance with the terms of the DIP Facility (collectively, “Cash-Collateralized”) and (y) any DIP Lender Claims that do not arise until after the Effective Date shall be paid in full by the Reorganized Debtors pursuant to the terms of the DIP Facility. Without limiting the foregoing, once the DIP Lender Claims (other than those
arising after the Effective Date) have been paid in full in Cash (or Cash-Collateralized in the case of outstanding letters of credit) on the Effective Date pursuant to Section 8.10, all Liens on property of the Debtors or the Reorganized Debtors or the Transferred Joint Venture Entities with respect to the DIP Lender Claims shall be deemed released pursuant to Section 12.12(a) hereof, and the DIP Lenders shall take all reasonable actions at the Debtors’ sole expense to confirm the removal of any Liens on the properties and assets of the Debtors and their affiliates and successors securing the DIP Lender Claims. Distributions to holders of Allowed DIP Lender Claims shall be made in accordance with Section 8.10 hereof.
ARTICLE III. CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS
ARTICLE IV. TREATMENT OF CLAIMS AND EQUITY INTERESTS
4.01. Class 1—Other Priority Claims.
(a) Impairment and Voting. Class 1 is unimpaired by the Plan. Each holder of an Allowed Other Priority Claim is conclusively presumed to have accepted the Plan and is not entitled to vote to accept or reject the Plan.
(b) Distributions. Each holder of an Allowed Other Priority Claim shall receive on the later of the Effective Date and the date such Allowed Other Priority Claim
becomes an Allowed Other Priority Claim, or as soon thereafter as is practicable, in full and complete satisfaction of such Allowed Claim, Cash in an amount equal to such Allowed Other Priority Claim (including interest accrued pursuant to Section 8.14 hereof).
4.02. Class 2—Secured Tax Claims.
(a) Impairment and Voting. Class 2 is unimpaired by the Plan. Each holder of an Allowed Secured Tax Claim is conclusively presumed to have accepted the Plan and is not entitled to vote to accept or reject the Plan.
(b) Treatment of Liens. All Liens on property of the Debtors or the Reorganized Debtors or the Transferred Joint Venture Entities with respect to the Secured Tax Claims shall be deemed released pursuant to Section 12.12(a) hereof.
(c) Distributions/Reinstatement of Claims. Except to the extent that a holder of an Allowed Secured Tax Claim agrees to a different treatment, at the sole option of the Plan Administrator (but consistent with the obligations of ACC under the Purchase Agreements), each holder of an Allowed Secured Tax Claim shall receive, on or as soon as reasonably practicable after the later of the Effective Date and the date that is 30 calendar days after a Secured Tax Claim becomes Allowed, one of the following in full and complete satisfaction of such Allowed Secured Tax Claim: (x) Cash in an amount equal to 100% of the unpaid amount of such Claim, plus interest to the Effective Date at the applicable statutory rate to the extent allowable under the Bankruptcy Code; (y) the proceeds of the sale or disposition of the Collateral securing such Claim to the extent of the value of the holder’s secured interest in such Claim; or (z) such other distribution as necessary to satisfy the requirements of the Bankruptcy Code.
(d) Separate Subclasses. Unless otherwise ordered by the Bankruptcy Court, each Allowed Secured Tax Claim in Class 2 shall be considered to be a separate subclass within Class 2, included in the Debtor Group in which the Collateral securing such Claim is held, and each such subclass shall be deemed to be a separate Class for purposes of this Plan.
4.03. Class 3—Other Secured Claims.
(a) Impairment and Voting. Class 3 is unimpaired by the Plan. Each holder of an Allowed Other Secured Claim is conclusively presumed to have accepted the Plan and is not entitled to vote to accept or reject the Plan.
(b) Distributions/Reinstatement of Claims. Except to the extent that a holder of an Allowed Other Secured Claim agrees to a different treatment, at the sole option of the Plan Administrator (but consistent with the obligations of ACC under the Purchase Agreements), each holder of an Allowed Other Secured Claim shall receive, on or as soon as reasonably practicable after the later of the Effective Date and the date that is 30 calendar days after an Other Secured Claim becomes Allowed, one of the following in full and complete satisfaction of such Allowed Other Secured Claim:
(i) if the Claim is not an Assumed Sale Liability: (x) Cash in an amount equal to 100% of the unpaid amount of such Claim, plus interest to the Effective Date at a rate determined pursuant to Section 8.14 hereof; (y) the proceeds of the sale or disposition of the Collateral securing such Claim to the extent of the value of the holder’s secured interest in such Claim; or (z) such other distribution as necessary to satisfy the requirements of the Bankruptcy Code; or
(ii) to the extent such Allowed Other Secured Claim is an Assumed Sale Liability, the Assumption and satisfaction of such Claim in accordance with the applicable Purchase Agreement.
(c) Defenses/Treatment of Liens. The Debtors’ failure to object to any Other Secured Claim during the pendency of the Chapter 11 Cases shall not prejudice, diminish, affect or impair the Reorganized Debtors’ right to contest or defend against such Other Secured Claim in any lawful manner or forum when and if such Claim is sought to be enforced by the Holder thereof. Each Other Secured Claim and all Liens lawfully granted or existing on any property of the Debtors on the Commencement Date as security for an Other Secured Claim shall (i) to the extent the Collateral securing such Allowed Other Secured Claim is a Purchased Asset, be released on the Effective Date in accordance with Section 12.12(a) hereof and (ii) to the extent the Collateral securing such Allowed Other Secured Claim is an Excluded Asset, until the Allowed amount of such Claim is satisfied pursuant to Section 4.03(b), subject to Section 12.12(a) hereof, survive the confirmation and consummation of this Plan and the Debtors’ discharge under section 1141(d) of the Bankruptcy Code and Section 12.04 of this Plan, and remain subject to avoidance by the Reorganized Debtors under the Bankruptcy Code.
(d) Separate Subclasses. Unless otherwise ordered by the Bankruptcy Court, each Allowed Other Secured Claim in Class 3 shall be considered to be a separate subclass within Class 3, included in the Debtor Group in which the Collateral securing such Claim is held, and each such subclass shall be deemed to be a separate Class for purposes of this Plan.
4.04. Class FV-Bank—FrontierVision Bank Claims.
(a) Impairment and Voting. Class FV-Bank is impaired by the Plan, and each holder of an Allowed FrontierVision Bank Claim is entitled to vote to accept or reject the Plan.
(b) Allowance. The FrontierVision Bank Claims shall, subject to Section 6.04(c) hereof, be Allowed in the principal amount of $617,312,500, plus interest accrued to (but not including) the Effective Date (the “FV Bank P&I”), which interest, except as otherwise determined by the Bankruptcy Court in connection with Section 4.04(c)(ii) below, shall be deemed paid in full to the extent the Debtors continue to make payments at the interest rates paid by the Debtors during the Chapter 11 Cases under paragraph 11(c) of the DIP Order.
(c) Distributions. Subject to Section 6.16(a) hereof:
(i) Payment of the FV Bank P&I. On the later of (x) the Effective Date and (y) the earlier of (A) the date such holder becomes a Released Bank Lender Defendant or (B) compliance by such holder with the requirements of Section 6.16(b), each holder of an Allowed FrontierVision Bank Claim shall receive, in full and complete satisfaction of the FV Bank P&I portion of such Allowed Claim, its Pro Rata Share of an amount in Cash equal to the Allowed amount of the FV Bank P&I.
(ii) Reserve for Grid Interest. On the Effective Date, a segregated, interest bearing account held by the Distribution Company shall be funded with Cash equal to interest on the principal amount of the Allowed FrontierVision Bank Claims to (but not including) the Effective Date at the maximum non-default rate set forth in the FrontierVision Credit Agreement, over the interest paid or Allowed on such principal amount (such excess, the “FV Grid Interest”), which is estimated by the Debtors to be $8,200,000 as of an assumed Effective Date of July 31, 2006. After notice and a hearing, the Bankruptcy Court shall make a determination as to the entitlement of the holders of the FrontierVision Bank Claims to the FV Grid Interest. In connection with any such determination made pursuant to an order of the Bankruptcy Court: (x) to the extent the Claim with respect to the disputed FV Grid Interest is Allowed, such amount of FV Grid Interest reserve together with the net after-tax earnings on the deposit with respect thereto shall, subject to Section 6.16, be released Pro Rata to each holder of the FrontierVision Bank Claim and (y) the balance of the reserve with respect to the disputed FV Grid Interest, together with the net after-tax earnings thereon shall be released: (A) if Class FV-Bank is an Accepting Bank Class, up to the Bank Class Pro Rata Share of $50 million to the Contingent Value Vehicle to be added to the corresponding LIF pursuant to Section 6.08(c)(iv)(C)(1), or (B) otherwise to the FrontierVision Debtor Group Reserve.
(iii) Section 6.16 Escrows. On the Effective Date, a segregated, interest bearing account held by the Distribution Company shall be funded with Cash equal to the excess of (1) the Allowed amount of FrontierVision Bank Claims with respect to FV Bank P&I, over (2) all distributions to be made on the Effective Date to the holders of FrontierVision Bank Claims. On the date, if any, on which any reserve for FV Grid Interest is released to the holders of FrontierVision Bank Claims, but a portion of such release is required to be withheld pursuant to Section 6.16, the amount required to be withheld shall be transferred from the reserve for FV Grid Interest into such account. Upon such date as a holder of FrontierVision Bank Claims is entitled to a distribution pursuant to clause (c)(i)(y) above, such holder shall receive from such account, in full and complete satisfaction of the FV Bank P&I portion of its Allowed Claim (except as provided in (c)(ii) above), an amount in Cash equal to the Allowed amount of its FrontierVision Bank Claims, plus the net after tax interest earned on such released amount, if any.
(d) Additional Treatment.
(i) All Bank Lender Fee Claims and all Bank Lender Post-Effective Date Fee Claims arising out of or with respect to the FrontierVision Credit Agreement shall be paid as provided in Section 6.08 hereof.
(ii) All FrontierVision Bank Claims not paid or provided for pursuant to clause (b), (c) or (d)(i) above, including all Claims under Section 502(h) of the Bankruptcy Code and all unpaid interest, fees, costs, expenses and other charges, reimbursements, indemnities or contributions against any Debtor provided for under the FrontierVision Credit Agreement or applicable law, shall only be permitted to be asserted as Bank Counterclaims and Defensive Claims and shall not give rise to any additional distributions under this Plan.
4.05. Class FV-Notes—FrontierVision Notes Claims.
(a) Impairment and Voting. Class FV-Notes is impaired by the Plan. Each holder of an Allowed FrontierVision Notes Claim is entitled to vote to accept or reject the Plan.
(b) Allowance. The FrontierVision Notes Claims shall be deemed Allowed Claims in the aggregate amount of (i) $204,277,778, of which $200,000,000 represents principal and $4,277,778 represents interest accrued through the Commencement Date, plus (ii) interest, if any, accrued pursuant to Section 8.14.
(c) Distributions. On the Initial Distribution Date and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed FrontierVision Notes Claim shall receive, in full and complete satisfaction of such Allowed Claim, its Pro Rata Share of the FrontierVision Notes Distribution, subject to Section 8.07(c), to the extent not previously paid.
4.06. Class FV-Trade—FrontierVision Trade Claims.
(a) Impairment and Voting. Class FV-Trade is impaired by the Plan. Each holder of an Allowed FrontierVision Trade Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Initial Distribution Date and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed FrontierVision Trade Claim shall receive, in full and complete satisfaction of such Allowed Claim (including simple interest from the Commencement Date to the Effective Date at the rate of eight percent (8%) per annum), its Pro Rata Share of the FrontierVision Trade Claims Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid.
4.07. Class FV-Uns—FrontierVision Other Unsecured Claims.
(a) Impairment and Voting. Class FV-Uns is impaired by the Plan. Each holder of an Allowed FrontierVision Other Unsecured Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. Except to the extent that an Allowed FrontierVision Other Unsecured Claim is an Insured Claim, on the Initial Distribution Date and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed FrontierVision Other Unsecured Claim shall receive, in full and complete satisfaction of such Allowed Claim (including interest, if any, accrued pursuant to Section 8.14), its Pro Rata Share of the FrontierVision Other Unsecured Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid. A holder of an Allowed FrontierVision Other Unsecured Claim that is an Insured Claim shall (i) be paid from the proceeds of insurance to the extent that Claim is insured and such proceeds are not Purchased Assets and (ii) have an Allowed FrontierVision Other Unsecured Claim to the extent the applicable insurance policy does not provide coverage with respect to any portion of the Insured Claim.
4.08. Class FV-ESL—FrontierVision Existing Securities Law Claims.
(a) Impairment and Voting. Class FV-ESL is impaired by the Plan. Each holder of an Allowed FrontierVision Existing Securities Law Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Initial Distribution Date and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed FrontierVision Existing Securities Law Claim shall receive, in full and complete satisfaction of such Allowed Claim, its Pro Rata Share of the FrontierVision Existing Securities Law Claim Distribution.
4.09. Class FVHC-Notes—FrontierVision Holdco Notes Claims.
(a) Impairment and Voting. Class FVHC-Notes is impaired by the Plan. Each holder of an Allowed FrontierVision Holdco Notes Claim is entitled to vote to accept or reject the Plan.
(b) Allowance. The FrontierVision Holdco Notes Claims shall be deemed Allowed Claims in the aggregate amount of (i) $339,499,149, of which $328,658,000 represents principal and $10,841,149 represents interest accrued through the Commencement Date, plus (ii) interest, if any, accrued pursuant to Section 8.14.
(c) Distributions. On the Initial Distribution Date and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an
Allowed FrontierVision Holdco Notes Claim shall receive, in full and complete satisfaction of such Allowed Claim, its Pro Rata Share of the FrontierVision Holdco Notes Distribution, subject to Section 8.07(c), to the extent not previously paid.
4.10. Class FVHC-Trade—FrontierVision Holdco Trade Claims.
(a) Impairment and Voting. Class FVHC-Trade is impaired by the Plan. Each holder of an Allowed FrontierVision Holdco Trade Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Initial Distribution Date and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed FrontierVision Holdco Trade Claim shall receive, in full and complete satisfaction of such Allowed Claim (including interest, if any, accrued pursuant to Section 8.14), its Pro Rata Share of the FrontierVision Holdco Trade Claims Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid.
4.11. Class FVHC-Uns—FrontierVision Holdco Other Unsecured Claims.
(a) Impairment and Voting. Class FVHC-Uns is impaired by the Plan. Each holder of an Allowed FrontierVision Holdco Other Unsecured Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. Except to the extent that an Allowed FrontierVision Holdco Other Unsecured Claim is an Insured Claim, on the Initial Distribution Date and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed FrontierVision Holdco Other Unsecured Claim shall receive, in full and complete satisfaction of such Allowed Claim (including interest, if any, accrued pursuant to Section 8.14), its Pro Rata Share of the FrontierVision Holdco Other Unsecured Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid. A holder of an Allowed FrontierVision Holdco Other Unsecured Claim that is an Insured Claim shall (i) be paid from the proceeds of insurance to the extent that Claim is insured and such proceeds are not Purchased Assets and (ii) have an Allowed FrontierVision Holdco Other Unsecured Claim to the extent the applicable insurance policy does not provide coverage with respect to any portion of the Insured Claim.
4.12. Class FVHC-ESL—FrontierVision Holdco Existing Securities Law Claims.
(a) Impairment and Voting. Class FVHC-ESL is impaired by the Plan. Each holder of an Allowed FrontierVision Holdco Existing Securities Law Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Initial Distribution Date and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an
Allowed FrontierVision Holdco Existing Securities Law Claim shall receive, in full and complete satisfaction of such Allowed Claim, its Pro Rata Share of the FrontierVision Holdco Existing Securities Law Claim Distribution.
4.13. Class FVHC-Conv—FrontierVision Holdco Convenience Claims.
(a) Impairment and Voting. Class FVHC-Conv is impaired by the Plan. Each holder of an Allowed FrontierVision Holdco Convenience Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. Each holder of an Allowed FrontierVision Holdco Convenience Claim shall receive, in full and complete satisfaction of such Allowed Claim, Cash in an amount equal to 95% of the Deemed Value that such holder would have received if the Claim had remained in the Class to which it otherwise belongs; provided, however, that if (i) the holders of Allowed FrontierVision Holdco Convenience Claims do not accept the Plan by the requisite majorities set forth in section 1126(c) of the Bankruptcy Code or (ii) the holders of Claims which are deemed to be Allowed FrontierVision Holdco Convenience Claims would receive a greater amount of Plan Consideration consisting of Cash if they were treated as holders of Claims in the Class to which they would otherwise belong, then the holders of Allowed FrontierVision Holdco Convenience Claims shall be treated as holders of Claims in the Class to which they would otherwise belong; provided further, however, that in such event any election by a holder of an Allowed FrontierVision Holdco Convenience Claim to reduce the amount of its Allowed Claim to ten thousand dollars ($10,000) shall be null and void.
4.14. Class FVHC-FVNR—FrontierVision Bank Nonrecourse Lien Claim.
(a) Impairment and Voting. Class FVHC-FVNR is impaired by the Plan, and each holder of an Allowed FrontierVision Bank Nonrecourse Lien Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. Allowed FrontierVision Bank Nonrecourse Lien Claims shall be deemed to be fully and completely satisfied through the treatment provided under this Plan in respect of the FrontierVision Bank Claims to which such FrontierVision Bank Nonrecourse Lien Claims relate.
4.15. Class AGPH-Trade—Adelphia GP Holdings Trade Claims.
(a) Impairment and Voting. Class AGPH-Trade is impaired by the Plan. Each holder of an Allowed AGPH Trade Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed AGPH Trade Claim shall receive, in full and complete satisfaction of such Allowed Claim (including interest, if any, accrued pursuant to Section 8.14), its Pro Rata
Share of the AGPH Trade Claims Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid.
4.16. Class AGPH-Uns—Adelphia GP Holdings Other Unsecured Claims.
(a) Impairment and Voting. Class AGPH-Uns is impaired by the Plan. Each holder of an Allowed AGPH Other Unsecured Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. Except to the extent that an Allowed AGPH Other Unsecured Claim is an Insured Claim, on the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed AGPH Other Unsecured Claim shall receive, in full and complete satisfaction of such Allowed Claim (including interest, if any, accrued pursuant to Section 8.14), its Pro Rata Share of the AGPH Other Unsecured Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid. A holder of an Allowed AGPH Other Unsecured Claim that is an Insured Claim shall (i) be paid from the proceeds of insurance to the extent that Claim is insured and such proceeds are not Purchased Assets and (ii) have an Allowed AGPH Other Unsecured Claim to the extent the applicable insurance policy does not provide coverage with respect to any portion of the Insured Claim.
4.17. Class P-Bank—Parnassos Bank Claims.
(a) Impairment and Voting. Class P-Bank is impaired by the Plan, and each holder of an Allowed Parnassos Bank Claim is entitled to vote to accept or reject the Plan.
(b) Allowance. The Parnassos Bank Claims shall, subject to Section 6.04(c) hereof, be Allowed in the principal amount of $623,000,000, plus interest accrued to (but not including) the Effective Date (the “P Bank P&I”), which interest, except as otherwise determined by the Bankruptcy Court in connection with Section 4.17(c)(ii) below, shall be deemed paid in full to the extent the Debtors continue to make payments at the interest rates paid by the Debtors during the Chapter 11 Cases under paragraph 11(c) of the DIP Order.
(c) Distributions. Subject to Section 6.16(a) hereof:
(i) Payment of the P-Bank P&I. On the later of (x) the Effective Date and (y) the earlier of (A) the date such holder becomes a Released Bank Lender Defendant or (B) compliance by such holder with the requirements of Section 6.16(b), each holder of an Allowed Parnassos Bank Claim shall receive, in full
and complete satisfaction of the P-Bank P&I portion of such Allowed Claim, its Pro Rata Share of an amount in Cash equal to the Allowed amount of the P-Bank P&I.
(ii) Reserve for Grid Interest. On the Effective Date, a segregated, interest bearing account held by the Parnassos Distribution Company shall be funded with Cash equal to interest on the principal amount of the Allowed Parnassos Bank Claims to (but not including) the Effective Date at the maximum non-default rate set forth in the Parnassos Credit Agreement, over the interest paid or Allowed on such principal amount (such excess, the “P Grid Interest”), which is estimated by the Debtors to be $52,400,000 as of an assumed Effective Date of July 31, 2006. After notice and a hearing, the Bankruptcy Court shall make a determination as to the entitlement of the holders of the Parnassos Bank Claims to the P Grid Interest. In connection with any such determination made pursuant to an order of the Bankruptcy Court: (x) to the extent the Claim with respect to the disputed P Grid Interest is Allowed, such amount of P Grid Interest reserve together with the net after-tax earnings on the deposit with respect thereto shall, subject to Section 6.16, be released Pro Rata to each holder of the Parnassos Bank Claim and (y) the balance of the reserve with respect to the disputed P Grid Interest, together with the net after-tax earnings thereon shall be released: (A) if Class P-Bank is an Accepting Bank Class, up to the Bank Class Pro Rata Share of $50 million to the Contingent Value Vehicle to be added to the corresponding LIF pursuant to Section 6.08(c)(iv)(C)(1), or (B) otherwise to the Parnassos Debtor Group Reserve.
(iii) Section 6.16 Escrows. On the Effective Date, a segregated, interest bearing account held by the Parnassos Distribution Company shall be funded with Cash equal to the excess of (1) the Allowed amount of Parnassos Bank Claims with respect to P Bank P&I, over (2) all distributions to be made on the Effective Date to the holders of Parnassos Bank Claims. On the date, if any, on which any reserve for P Grid Interest is released to the holders of Parnassos Bank Claims, but a portion of such release is required to be withheld pursuant to Section 6.16, the amount required to be withheld shall be transferred from the reserve for P-Grid Interest into such account. Upon such date as a holder of Parnassos Bank Claims is entitled to a distribution pursuant to clause (c)(i)(y) above, such holder shall receive from such account, in full and complete satisfaction of the P Bank P&I portion of its Allowed Claim (except as provided in (c)(ii) above), an amount in Cash equal to the Allowed amount of its Parnassos Bank Claims, plus the net after tax interest earned on such released amount, if any.
(d) Additional Treatment.
(i) All Bank Lender Fee Claims and all Bank Lender Post-Effective Date Fee Claims arising out of or with respect to the Parnassos Credit Agreement shall be paid as provided in Section 6.08 hereof.
(ii) All Parnassos Bank Claims not paid or provided for pursuant to clause (b), (c) or (d)(i) above, including all Claims under Section 502(h) of the Bankruptcy Code and all unpaid interest, fees, costs, expenses and other charges, reimbursements, indemnities or contributions against any Debtor provided for under the Parnassos Credit Agreement or applicable law, shall only be permitted to be asserted as Bank Counterclaims and Defensive Claims and shall not give rise to any additional distributions under this Plan.
4.18. Class P-Trade—Parnassos Trade Claims.
(a) Impairment and Voting. Class P-Trade is impaired by the Plan. Each holder of an Allowed Parnassos Trade Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Initial Distribution Date and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed Parnassos Trade Claim shall receive, in full and complete satisfaction of such Allowed Claim (including simple interest from the Commencement Date to the Effective Date at the rate of eight percent (8%) per annum), its Pro Rata Share of the Parnassos Trade Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid.
4.19. Class P-Uns—Parnassos Other Unsecured Claims.
(a) Impairment and Voting. Class P-Uns is impaired by the Plan. Each holder of an Allowed Parnassos Other Unsecured Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. Except to the extent that an Allowed Parnassos Other Unsecured Claim is an Insured Claim, on the Initial Distribution Date and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed Parnassos Other Unsecured Claim shall receive, in full and complete satisfaction of such Allowed Claim (including interest, if any, accrued pursuant to Section 8.14), its Pro Rata Share of the Parnassos Other Unsecured Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid. A holder of an Allowed Parnassos Other Unsecured Claim that is an Insured Claim shall (i) be paid from the proceeds of insurance to the extent that Claim is insured and such proceeds are not a Purchased Asset and (ii) have an Allowed Parnassos Other Unsecured Claim to the extent the applicable insurance policy does not provide coverage with respect to any portion of the Insured Claim.
4.20. Class P-Equity—Equity Interests in Parnassos Debtors.
(a) Impairment and Voting. Class P-Equity is unimpaired by the Plan. Each holder of an Allowed Equity Interest in a Parnassos Debtor is conclusively presumed to have accepted the Plan.
(b) Distributions. The legal, equitable and contractual rights to which holders of Equity Interests in the Parnassos Debtors are entitled shall not be altered by the Plan. On the Effective Date, (i) all of the equity securities of Empire Sports Network held by the Parnassos Joint Venture or its Subsidiaries shall be transferred to the Parnassos Distribution Companies in accordance with the Comcast Purchase Agreement or, if applicable, the Expanded Transaction Letter Agreement and (ii) either (A) in the event the Debtors consummate the Closing (as defined in the Comcast Purchase Agreement), the Parnassos JV Equity Interests held by the Debtors or the Reorganized Debtors shall be transferred to Comcast, and the Equity Interests in any Transferred Joint Venture Entity held by any Transferred Joint Venture Entity shall be retained by such latter Transferred Joint Venture Entity, in each case free and clear of all Encumbrances (other than Encumbrances under the JV Documents) as provided in the Comcast Purchase Agreement, or (B) in the event the Debtors consummate the Closing (as defined in the TW Purchase Agreement) of the TW Expanded Transaction, the Parnassos JV Equity Interests held by the Debtors or the Reorganized Debtors shall be transferred to TW NY, and the Equity Interests in any Transferred Joint Venture Entity held by any Transferred Joint Venture Entity shall be retained by such latter Transferred Joint Venture Entity, in each case free and clear of all Encumbrances (other than Encumbrances under the JV Documents) in accordance with the TW Purchase Agreement and the Expanded Transaction Letter Agreement. The Parnassos JV Equity Interests held by TCI Adelphia Holdings, LLC shall be retained by TCI Adelphia Holdings, LLC in accordance with the Comcast Purchase Agreement or, if applicable, the TW Purchase Agreement and the Expanded Transaction Letter Agreement. Equity Interests in Parnassos Debtors shall be treated in accordance with this Section 4.20(b) and shall not be entitled to receive any other distribution under this Plan except as provided in the first sentence of Section 6.02(h) hereof; provided, however, that nothing herein shall limit or impair any rights in respect of Retained Claims, as and to the extent Allowed.
4.21. Class TCI-Bank—Century-TCI Bank Claims.
(a) Impairment and Voting. Class TCI-Bank is impaired by the Plan, and each holder of an Allowed Century-TCI Bank Claim is entitled to vote to accept or reject the Plan.
(b) Allowance. The Century-TCI Bank Claims shall, subject to Section 6.04(c) hereof, be Allowed in the principal amount of $1,000,000,000, plus interest accrued to (but not including) the Effective Date (the “TCI Bank P&I”), which interest, except as otherwise determined by the Bankruptcy Court in connection with Section 4.21(c)(ii) below, shall be deemed paid in full to the extent the Debtors continue to make payments at the interest rates paid by the Debtors during the Chapter 11 Cases under paragraph 11(c) of the DIP Order.
(c) Distributions. Subject to Section 6.16(a) hereof:
(i) Payment of the TCI-Bank P&I. On the later of (x) the Effective Date and (y) the earlier of (A) the date such holder becomes a Released Bank Lender Defendant or (B) compliance by such holder with the requirements of Section 6.16(b), each holder of an Allowed Century-TCI Bank Claim shall receive, in full and complete satisfaction of the TCI-Bank P&I portion of such Allowed Claim, its Pro Rata Share of an amount in Cash equal to the Allowed amount of the TCI-Bank P&I.
(ii) Reserve for Grid Interest. On the Effective Date, a segregated, interest bearing account held by the Century-TCI Distribution Company shall be funded with Cash equal to interest on the principal amount of the Allowed Century-TCI Bank Claims to (but not including) the Effective Date at the maximum non-default rate set forth in the Century-TCI Credit Agreement, over the interest paid or Allowed on such principal amount (such excess, the “TCI Grid Interest”), which is estimated by the Debtors to be $64,700,000 as of an assumed Effective Date of July 31, 2006. After notice and a hearing, the Bankruptcy Court shall make a determination as to the entitlement of the holders of the Century-TCI Bank Claims to the TCI Grid Interest. In connection with any such determination made pursuant to an order of the Bankruptcy Court: (x) to the extent the Claim with respect to the disputed TCI Grid Interest is Allowed, such amount of TCI Grid Interest reserve together with the net after-tax earnings on the deposit with respect thereto shall, subject to Section 6.16, be released Pro Rata to each holder of the Century-TCI Bank Claim and (y) the balance of the reserve with respect to the disputed TCI Grid Interest, together with the net after-tax earnings thereon shall be released: (A) if Class TCI-Bank is an Accepting Bank Class, up to the Bank Class Pro Rata Share of $50 million to the Contingent Value Vehicle to be added to the corresponding LIF pursuant to Section 6.08(c)(iv)(C)(1), or (B) otherwise to the Century-TCI Debtor Group Reserve.
(iii) Section 6.16 Escrows. On the Effective Date, a segregated, interest bearing account held by the Century-TCI Distribution Company shall be funded with Cash equal to the excess of (1) the Allowed amount of Century-TCI Bank Claims with respect to TCI Bank P&I, over (2) all distributions to be made on the Effective Date to the holders of Century-TCI Bank Claims. On the date, if any, on which any reserve for TCI Grid Interest is released to the holders of Century-TCI Bank Claims, but a portion of such release is required to be withheld pursuant to Section 6.16, the amount required to be withheld shall be transferred
from the reserve for TCI Grid Interest into such account. Upon such date as a holder of Century-TCI Bank Claims is entitled to a distribution pursuant to clause (c)(i)(y) above, such holder shall receive from such account, in full and complete satisfaction of the TCI Bank P&I portion of its Allowed Claim (except as provided in (c)(ii) above), an amount in Cash equal to the Allowed amount of its Century-TCI Bank Claims, plus the net after-tax interest earned on such released amount, if any.
(d) Additional Treatment.
(i) All Bank Lender Fee Claims and all Bank Lender Post-Effective Date Fee Claims arising out of or with respect to the Century-TCI Credit Agreement shall be paid as provided in Section 6.08 hereof.
(ii) All Century-TCI Bank Claims not paid or provided for pursuant to clause (b), (c) or (d)(i) above, including all Claims under Section 502(h) of the Bankruptcy Code and all unpaid interest, fees, costs, expenses and other charges, reimbursements, indemnities or contributions against any Debtor provided for under the Century-TCI Credit Agreement or applicable law, shall only be permitted to be asserted as Bank Counterclaims and Defensive Claims and shall not give rise to any additional distributions under this Plan.
4.22. Class TCI-Trade—Century-TCI Trade Claims.
(a) Impairment and Voting. Class TCI-Trade is impaired by the Plan. Each holder of an Allowed Century-TCI Trade Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Initial Distribution Date and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed Century-TCI Trade Claim shall receive, in full and complete satisfaction of such Allowed Claim (including simple interest from the Commencement Date to the Effective Date at the rate of eight percent (8%) per annum), its Pro Rata Share of the Century-TCI Trade Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid.
4.23. Class TCI-Uns—Century-TCI Other Unsecured Claims.
(a) Impairment and Voting. Class TCI-Uns is impaired by the Plan. Each holder of an Allowed Century-TCI Other Unsecured Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. Except to the extent that an Allowed Century-TCI Other Unsecured Claim is an Insured Claim, on the Initial Distribution Date and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed Century-TCI Other Unsecured Claim shall receive, in full and complete
satisfaction of such Allowed Claim (including interest, if any, accrued pursuant to Section 8.14), its Pro Rata Share of the Century-TCI Other Unsecured Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid. A holder of an Allowed Century-TCI Other Unsecured Claim that is an Insured Claim shall (i) be paid from the proceeds of insurance to the extent that Claim is insured and such proceeds are not Purchased Assets and (ii) have an Allowed Century-TCI Other Unsecured Claim to the extent the applicable insurance policy does not provide coverage with respect to any portion of the Insured Claim.
4.24. Class TCI-Equity—Equity Interests in Century-TCI Debtors.
(a) Impairment and Voting. Class TCI-Equity is unimpaired by the Plan. Each holder of an Allowed Equity Interest in a Century-TCI Debtor is conclusively presumed to have accepted the Plan.
(b) Distributions. The legal, equitable and contractual rights to which holders of the Equity Interests in Century-TCI Debtors are entitled shall not be altered by the Plan. On the Effective Date, either (i) in the event the Debtors or the Reorganized Debtors consummate the Closing (as defined in the Comcast Purchase Agreement), the Century-TCI JV Equity Interests held by the Debtors or the Reorganized Debtors shall be transferred to Comcast, and the Equity Interests in any Transferred Joint Venture Entity held by any Transferred Joint Venture Entity shall be retained by such latter Transferred Joint Venture Entity, in each case free and clear of all Encumbrances (other than Encumbrances under the JV Documents) as provided in the Comcast Purchase Agreement, or (ii) in the event the Debtors or the Reorganized Debtors consummate the Closing (as defined in the TW Purchase Agreement) of the TW Expanded Transaction, the Century-TCI JV Equity Interests held by the Debtors or the Reorganized Debtors shall be transferred to TW NY, and the Equity Interests in any Transferred Joint Venture Entity held by any Transferred Joint Venture Entity shall be retained by such latter Transferred Joint Venture Entity, in each case free and clear of all Encumbrances (other than Encumbrances under the JV Documents), in accordance with the TW Purchase Agreement and the Expanded Transaction Letter Agreement. The Century-TCI JV Equity Interests held by TCI California Holdings LLC shall be retained by TCI California Holdings, LLC in accordance with the Comcast Purchase Agreement or, if applicable, the TW Purchase Agreement and the Expanded Transaction Letter Agreement. Equity Interests in Century-TCI Debtors shall be treated in accordance with this Section 4.24(b) and shall not be entitled to receive any other distribution under this Plan except as provided in the first sentence of Section 6.02(h) hereof; provided, however, that nothing herein shall limit or impair any rights in respect of Retained Claims, as and to the extent Allowed.
4.25. Class Century-Bank—Century Bank Claims.
(a) Impairment and Voting. Class Century-Bank is impaired by the Plan, and each holder of an Allowed Century Bank Claim is entitled to vote to accept or reject the Plan.
(b) Allowance. The Century Bank Claims shall, subject to Section 6.04(c) hereof, be Allowed in the principal amount of $2,480,000,000, plus interest accrued to (but not including) the Effective Date (the “Century Bank P&I”), which interest, except as otherwise determined by the Bankruptcy Court in connection with Section 4.25(c)(ii) below, shall be deemed paid in full to the extent the Debtors continue to make payments at the interest rates paid by the Debtors during the Chapter 11 Cases under paragraph 11(c) of the DIP Order.
(c) Distributions. Subject to Section 6.16(a) hereof:
(i) Payment of the Century Bank P&I. On the later of (x) the Effective Date and (y) the earlier of (A) the date such holder becomes a Released Bank Lender Defendant or (B) compliance by such holder with the requirements of Section 6.16(b), each holder of an Allowed Century Bank Claim shall receive, in full and complete satisfaction of the Century Bank P&I portion of such Allowed Claim, its Pro Rata Share of an amount in Cash equal to the Allowed amount of the Century Bank P&I.
(ii) Reserve for Grid Interest. On the Effective Date, a segregated, interest bearing account held by the Distribution Company shall be funded with Cash equal to interest on the principal amount of the Allowed Century Bank Claims to (but not including) the Effective Date at the maximum non-default rate set forth in the Century Credit Agreement, over the interest paid or Allowed on such principal amount (such excess, the “Century Grid Interest”), which is estimated by the Debtors to be $31,700,000 as of an assumed Effective Date of July 31, 2006. After notice and a hearing, the Bankruptcy Court shall make a determination as to the entitlement of the holders of the Century Bank Claims to the Century Grid Interest. In connection with any such determination made pursuant to an order of the Bankruptcy Court: (x) to the extent the Claim with respect to the disputed Century Grid Interest is Allowed, such amount of Century Grid Interest reserve together with the net after-tax earnings on the deposit with respect thereto shall, subject to Section 6.16, be released Pro Rata to each holder of the Century Bank Claim and (y) the balance of the reserve with respect to the disputed Century Grid Interest, together with the net after-tax earnings thereon shall be released: (A) if Class Century-Bank is an Accepting Bank Class, up to the Bank Class Pro Rata Share of $50 million to the Contingent Value Vehicle to be added to the corresponding LIF pursuant to Section 6.08(c)(iv)(C)(1), or (B) otherwise to the Century Debtor Group Reserve.
(iii) Section 6.16 Escrows. On the Effective Date, a segregated, interest bearing account held by the Distribution Company shall be funded with Cash equal to the excess of (1) the Allowed amount of Century Bank Claims with respect to Century Bank P&I, over (2) all distributions to be made on the Effective Date to the holders of Century Bank Claims. On the date, if any, on which any reserve for Century Grid Interest is released to the holders of Century Bank Claims, but a portion of such release is required to be withheld pursuant to Section 6.16, the amount required to be withheld shall be transferred from the reserve for Century Grid Interest into such account. Upon such date as a holder of Century Bank Claims is entitled to a distribution pursuant to clause (c)(i)(y) above, such holder shall receive from such account, in full and complete satisfaction of the Century Bank P&I portion of its Allowed Claim (except as provided in (c)(ii) above), an amount in Cash equal to the Allowed amount of its Century Bank Claims, plus the net after-tax interest earned on such released amount, if any.
(d) Additional Treatment.
(i) All Bank Lender Fee Claims and all Bank Lender Post-Effective Date Fee Claims arising out of or with respect to the Century Credit Agreement shall be paid as provided in Section 6.08 hereof.
(ii) All Century Bank Claims not paid or provided for pursuant to clause (b), (c) or (d)(i) above, including all Claims under Section 502(h) of the Bankruptcy Code and all unpaid interest, fees, costs, expenses and other charges, reimbursements, indemnities or contributions against any Debtor provided for under the Century Credit Agreement or applicable law, shall only be permitted to be asserted as Bank Counterclaims and Defensive Claims and shall not give rise to any additional distributions under this Plan.
4.26. Class Century-Trade—Century Trade Claims.
(a) Impairment and Voting. Class Century-Trade is impaired by the Plan. Each holder of an Allowed Century Trade Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed Century Trade Claim shall receive, in full and complete satisfaction of such Allowed Claim (including simple interest from the Commencement Date to the Effective Date at the rate of eight percent (8%) per annum), its Pro Rata Share of the Century Trade Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid.
4.27. Class Century-Uns—Century Other Unsecured Claims.
(a) Impairment and Voting. Class Century-Uns is impaired by the Plan. Each holder of an Allowed Century Other Unsecured Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. Except to the extent that an Allowed Century Other Unsecured Claim is an Insured Claim, on the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed Century Other Unsecured Claim shall receive, in full and complete satisfaction of such Allowed Claim (including interest, if any, accrued pursuant to Section 8.14), its Pro Rata Share of the Century Other Unsecured Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid. A holder of an Allowed Century Other Unsecured Claim that is an Insured Claim shall (i) be paid from the proceeds of insurance to the extent that Claim is insured and such proceeds are not Purchased Assets and (ii) have an Allowed Century Other Unsecured Claim to the extent the applicable insurance policy does not provide coverage with respect to any portion of the Insured Claim.
4.28. Class CCHC-Trade—CCHC Trade Claims.
(a) Impairment and Voting. Class CCHC-Trade is impaired by the Plan. Each holder of an Allowed CCHC Trade Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed CCHC Trade Claim shall receive, in full and complete satisfaction of such Allowed Claim (including simple interest from the Commencement Date to the Effective Date at the rate of eight percent (8%) per annum), its Pro Rata Share of the CCHC Trade Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid.
4.29. Class CCHC-Uns—CCHC Other Unsecured Claims.
(a) Impairment and Voting. Class CCHC-Uns is impaired by the Plan. Each holder of an Allowed CCHC Other Unsecured Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. Except to the extent that an Allowed CCHC Other Unsecured Claim is an Insured Claim, on the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder
of an Allowed CCHC Other Unsecured Claim shall receive, in full and complete satisfaction of such Allowed Claim (including interest, if any, accrued pursuant to Section 8.14), its Pro Rata Share of the CCHC Other Unsecured Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid. A holder of an Allowed CCHC Other Unsecured Claim that is an Insured Claim shall (i) be paid from the proceeds of insurance to the extent that Claim is insured and such proceeds are not Purchased Assets and (ii) have an Allowed CCHC Other Unsecured Claim to the extent the applicable insurance policy does not provide coverage with respect to any portion of the Insured Claim.
4.30. Class CCHC-CentNR—Century Bank Nonrecourse Lien Claim.
(a) Impairment and Voting. Class CCHC-CentNR is impaired by the Plan, and each holder of an Allowed Century Bank Nonrecourse Lien Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. Allowed Century Bank Nonrecourse Lien Claims shall be deemed to be fully and completely satisfied through the treatment provided under this Plan in respect of the Century Bank Claims to which such Century Bank Nonrecourse Lien Claims relate.
4.31. Class CCC-Trade—CCC Trade Claims.
(a) Impairment and Voting. Class CCC-Trade is impaired by the Plan. Each holder of an Allowed CCC Trade Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed CCC Trade Claim shall receive, in full and complete satisfaction of such Allowed Claim (including simple interest from the Commencement Date to the Effective Date at the rate of eight percent (8%) per annum), its Pro Rata Share of the CCC Trade Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid.
4.32. Class CCC-Uns—CCC Other Unsecured Claims.
(a) Impairment and Voting. Class CCC-Uns is impaired by the Plan. Each holder of an Allowed CCC Other Unsecured Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. Except to the extent that an Allowed CCC Other Unsecured Claim is an Insured Claim, on the Initial Distribution Date, and on each Periodic
Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed CCC Other Unsecured Claim shall receive, in full and complete satisfaction of such Allowed Claim (including interest, if any, accrued pursuant to Section 8.14), its Pro Rata Share of the CCC Other Unsecured Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid. A holder of an Allowed CCC Other Unsecured Claim that is an Insured Claim shall (i) be paid from the proceeds of insurance to the extent that Claim is insured and such proceeds are not Purchased Assets and (ii) have an Allowed CCC Other Unsecured Claim to the extent the applicable insurance policy does not provide coverage with respect to any portion of the Insured Claim.
4.33. Class FtMS-Bank—Century Bank Claims.
(a) Impairment and Voting. Class FtMS-Bank is impaired by the Plan, and each holder of an Allowed Century Bank Claim against a Ft. Myers Subsidiary Debtor is entitled to vote to accept or reject the Plan.
(b) Distributions. Allowed Century Bank Claims against Ft. Myers Subsidiary Debtors shall be deemed to be fully and completely satisfied through the treatment provided under this Plan in respect of the Class Century-Bank.
4.34. Class FtMS-Cont—Ft. Myers Subsidiary Contrib/Subrog Claims.
(a) Impairment and Voting. Class FtMS-Cont is unimpaired by the Plan. Each holder of an Allowed Ft. Myers Subsidiary Contrib/Subrog Claims is conclusively presumed to have accepted the Plan.
(b) Distributions. On the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, Century Cable Holdings LLC, the holder of the Allowed Ft. Myers Subsidiary Contrib/Subrog Claim, shall receive, in full and complete satisfaction of such Allowed Claim, its Pro Rata Share of the Ft. Myers Subsidiary Contrib/Subrog Distribution. Such Distribution shall be deemed to be deposited one-half in the Century Trade Distribution Reserve and one-half in the Century Other Unsecured Distribution Reserve, and further reallocated as provided in Section 9.03(e) hereof.
4.35. Class FtMS-Trade—Ft. Myers Subsidiary Trade Claims.
(a) Impairment and Voting. Class FtMS-Trade is impaired by the Plan. Each holder of an Allowed Ft. Myers Subsidiary Trade Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an
Allowed Ft. Myers Subsidiary Trade Claim shall receive, in full and complete satisfaction of such Allowed Claim (including simple interest from the Commencement Date to the Effective Date at the rate of eight percent (8%) per annum), its Pro Rata Share of the Ft. Myers Subsidiary Trade Distribution, subject to Section 8.07(c), to the extent not previously paid; provided that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid.
4.36. Class FtMS-Uns— Ft. Myers Subsidiary Other Unsecured Claims.
(a) Impairment and Voting. Class FtMS-Uns is impaired by the Plan. Each holder of an Allowed Ft. Myers Subsidiary Other Unsecured Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. Except to the extent that an Allowed Ft. Myers Subsidiary Other Unsecured Claim is an Insured Claim, on the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed Ft. Myers Subsidiary Other Unsecured Claim shall receive, in full and complete satisfaction of such Allowed Claim (including interest, if any, accrued pursuant to Section 8.14), its Pro Rata Share of the Ft. Myers Subsidiary Other Unsecured Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid. A holder of an Allowed Ft. Myers Subsidiary Other Unsecured Claim that is an Insured Claim shall (i) be paid from the proceeds of insurance to the extent that Claim is insured and such proceeds are not Purchased Assets and (ii) have an Allowed Ft. Myers Subsidiary Other Unsecured Claim to the extent the applicable insurance policy does not provide coverage with respect to any portion of the Insured Claim.
4.37. Class FtM-FPL—FPL Note Claims.
(a) Impairment and Voting. Class FtM-FPL is impaired by the Plan. Each holder of an Allowed FPL Note Claim is entitled to vote to accept or reject the Plan.
(b) Fixing of the FPL Note Claim. The FPL Note Claims shall be fixed in the aggregate amount of (i) $127,435,663, of which $108,000,000 represents initial principal and $19,435,663 represents additional amounts accrued through the Commencement Date plus (ii) interest, if any, accrued pursuant to Section 8.14 plus (iii) fees and other amounts to the extent Allowed and permitted by the applicable documents related to the FPL Note.
(c) Distributions. On the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed FPL Note Claim shall receive, in full and complete satisfaction of such Claim, its Pro Rata Share of the FPL Note Distribution, subject to Section 8.07(c), to the extent not previously paid.
4.38. Class FtM-Trade—Ft. Myers Trade Claims.
(a) Impairment and Voting. Class FtM-Trade is impaired by the Plan. Each holder of an Allowed Ft. Myers Trade Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed Ft. Myers Trade Claim shall receive, in full and complete satisfaction of such Allowed Claim (including interest, if any, accrued pursuant to Section 8.14), its Pro Rata Share of the Ft. Myers Trade Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid.
4.39. Class FtM-Uns—Ft. Myers Other Unsecured Claims.
(a) Impairment and Voting. Class FtM-Uns is impaired by the Plan. Each holder of an Allowed Ft. Myers Other Unsecured Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. Except to the extent that an Allowed Ft. Myers Other Unsecured Claim is an Insured Claim, on the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed Ft. Myers Other Unsecured Claim shall receive, in full and complete satisfaction of such Allowed Claim (including interest, if any, accrued pursuant to Section 8.14), its Pro Rata Share of the Ft. Myers Other Unsecured Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid. A holder of an Allowed Ft. Myers Other Unsecured Claim that is an Insured Claim shall (i) be paid from the proceeds of insurance to the extent that Claim is insured and such proceeds are not Purchased Assets and (ii) have an Allowed Ft. Myers Other Unsecured Claim to the extent the applicable insurance policy does not provide coverage with respect to any portion of the Insured Claim.
4.40. Class FtM-CentNR—Century Bank Nonrecourse Lien Claim.
(a) Impairment and Voting. Class FtM-CentNR is impaired by the Plan, and each holder of an Allowed Century Bank Nonrecourse Lien Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. Allowed Century Bank Nonrecourse Lien Claims shall be deemed to be fully and completely satisfied through the treatment provided under this Plan in respect of the Century Bank Claims to which such Century Bank Nonrecourse Lien Claims relate.
4.41. Class ARA-Notes—Arahova Notes Claims.
(a) Impairment and Voting. Class ARA-Notes is impaired by the Plan. Each holder of an Allowed Arahova Notes Claim is entitled to vote to accept or reject the Plan.
(b) Allowance. The Arahova Notes Claims shall be deemed Allowed Claims in the aggregate amount of (i) $1,743,517,586, of which $1,712,003,697 represents principal and $31,513,889 represents interest accrued through the Commencement Date, plus (ii) interest, if any, accrued pursuant to Section 8.14. On or prior to the Confirmation Date, the Bankruptcy Court shall determine whether the Allowed Arahova Notes Claims include an additional $48,708.76 in interest accrued through the Commencement Date, as asserted by the Indenture Trustee for the Arahova Notes.
(c) Distributions. On the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed Arahova Notes Claim shall receive, in full and complete satisfaction of such Allowed Claim, its Pro Rata Share of the Arahova Notes Distribution, subject to Section 8.07(c), to the extent not previously paid.
4.42. Class ARA-Trade—Arahova Trade Claims.
(a) Impairment and Voting. Class ARA-Trade is impaired by the Plan. Each holder of an Allowed Arahova Trade Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed Arahova Trade Claim shall receive, in full and complete satisfaction of such Allowed Claim (including interest, if any, accrued pursuant to Section 8.14), its Pro Rata Share of the Arahova Trade Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid.
4.43. Class ARA-Uns—Arahova Other Unsecured Claims.
(a) Impairment and Voting. Class ARA-Uns is impaired by the Plan. Each holder of an Allowed Arahova Other Unsecured Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. Except to the extent that an Allowed Arahova Other Unsecured Claim is an Insured Claim, on the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed Arahova Other Unsecured Claim shall receive, in full and complete satisfaction of such Allowed Claim (including interest, if any, accrued pursuant to Section 8.14), its Pro Rata Share of the Arahova Other Unsecured Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim
is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid. A holder of an Allowed Arahova Other Unsecured Claim that is an Insured Claim shall (i) be paid from the proceeds of insurance to the extent that Claim is insured and such proceeds are not Purchased Assets and (ii) have an Allowed Arahova Other Unsecured Claim to the extent the applicable insurance policy does not provide coverage with respect to any portion of the Insured Claim.
4.44. Class ARA-ESL—Arahova Existing Securities Law Claims.
(a) Impairment and Voting. Class ARA-ESL is impaired by the Plan. Each holder of an Allowed Arahova Existing Securities Law Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed Arahova Existing Securities Law Claim shall receive, in full and complete satisfaction of such Allowed Claim, its Pro Rata Share of the Arahova Existing Securities Law Claims Distribution.
4.45. Class ARA-Conv—Arahova Convenience Claims.
(a) Impairment and Voting. Class ARA-Conv is impaired by the Plan. Each holder of an Allowed Arahova Convenience Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. Each holder of an Allowed Arahova Convenience Claim shall receive, in full and complete satisfaction of such Allowed Claim, Cash in an amount equal to 95% of the Deemed Value that such holder would have received if the Claim had remained in the Class to which it otherwise belongs; provided, however, that if (i) the holders of Allowed Arahova Convenience Claims do not accept the Plan by the requisite majorities set forth in section 1126(c) of the Bankruptcy Code or (ii) the holders of Claims which are deemed to be Allowed Arahova Convenience Claims would receive a greater amount of Plan Consideration consisting of Cash if they were treated as holders of Claims in the Class to which they would otherwise belong, then the holders of Allowed Arahova Convenience Claims shall be treated as holders of Claims in the Class to which they would otherwise belong; provided further, however, that in such event any election by a holder of an Allowed Arahova Convenience Claim to reduce the amount of its Allowed Claim to ten thousand dollars ($10,000) shall be null and void.
4.46. Class OLY-Bank—Olympus Bank Claims.
(a) Impairment and Voting. Class OLY-Bank is impaired by the Plan, and each holder of an Allowed Olympus Bank Claim is entitled to vote to accept or reject the Plan.
(b) Allowance. The Olympus Bank Claims shall, subject to Section 6.04(c) hereof, be Allowed in the principal amount of $1,265,000,000, plus interest accrued to (but not including) the Effective Date (the “OLY Bank P&I”), which interest, except as otherwise determined by the Bankruptcy Court in connection with Section 4.46(c)(ii) below, shall be deemed paid in full to the extent the Debtors continue to make payments at the interest rates paid by the Debtors during the Chapter 11 Cases under paragraph 11(c) of the DIP Order.
(c) Distributions. Subject to Section 6.16(a) hereof:
(i) Payment of the OLY Bank P&I. On the later of (x) the Effective Date and (y) the earlier of (A) the date such holder becomes a Released Bank Lender Defendant or (B) compliance by such holder with the requirements of Section 6.16(b), each holder of an Allowed Olympus Bank Claim shall receive, in full and complete satisfaction of the OLY Bank P&I portion of such Allowed Claim, its Pro Rata Share of an amount in Cash equal to the Allowed amount of the OLY Bank P&I.
(ii) Reserve for Grid Interest. On the Effective Date, a segregated, interest bearing account held by the Distribution Company shall be funded with Cash equal to interest on the principal amount of the Allowed Olympus Bank Claims to (but not including) the Effective Date at the maximum non-default rate set forth in the Olympus Credit Agreement, over the interest paid or Allowed on such principal amount (such excess, the “OLY Grid Interest”), which is estimated by the Debtors to be $0 as of an assumed Effective Date of July 31, 2006. After notice and a hearing, the Bankruptcy Court shall make a determination as to the entitlement of the holders of the Olympus Bank Claims to the OLY Grid Interest. In connection with any such determination made pursuant to an order of the Bankruptcy Court: (x) to the extent the Claim with respect to the disputed OLY Grid Interest is Allowed, such amount of OLY Grid Interest reserve together with the net after-tax earnings on the deposit with respect thereto shall, subject to Section 6.16, be released Pro Rata to each holder of the Olympus Bank Claim and (y) the balance of the reserve with respect to the disputed OLY Grid Interest, together with the net after-tax earnings thereon shall be released: (A) if Class OLY-Bank is an Accepting Bank Class, up to the Bank Class Pro Rata Share of $50 million to the Contingent Value Vehicle to be added to the corresponding LIF pursuant to Section 6.08(c)(iv)(C)(1), or (B) otherwise to the Olympus Debtor Group Reserve.
(iii) Section 6.16 Escrows. On the Effective Date, a segregated, interest bearing account held by the Distribution Company shall be funded with Cash equal to the excess of (1) the Allowed amount of Olympus Bank Claims with respect to OLY Bank P&I, over (2) all distributions to be made on the Effective Date to the holders of Olympus Bank Claims. On the date, if any, on which any reserve for OLY Grid Interest is released to the holders of Olympus Bank Claims, but a portion of such release is required to be withheld pursuant to Section 6.16, the amount required to be withheld shall be transferred from the
reserve for OLY Grid Interest into such account. Upon such date as a holder of Olympus Bank Claims is entitled to a distribution pursuant to clause (c)(i)(y) above, such holder shall receive from such account, in full and complete satisfaction of the OLY Bank P&I portion of its Allowed Claim (except as provided in (c)(ii) above), an amount in Cash equal to the Allowed amount of its Olympus Bank Claims, plus the net after-tax interest earned on such released amount, if any.
(d) Additional Treatment.
(i) All Bank Lender Fee Claims and all Bank Lender Post-Effective Date Fee Claims arising out of or with respect to the Olympus Credit Agreement shall be paid as provided in Section 6.08 hereof.
(ii) All Olympus Bank Claims not paid or provided for pursuant to clause (b), (c) or (d)(i) above, including all Claims under Section 502(h) of the Bankruptcy Code and all unpaid interest, fees, costs, expenses and other charges, reimbursements, indemnities or contributions against any Debtor provided for under the Olympus Credit Agreement or applicable law, shall only be permitted to be asserted as Bank Counterclaims and Defensive Claims and shall not give rise to any additional distributions under this Plan.
4.47. Class OLY-Trade—Olympus Trade Claims.
(a) Impairment and Voting. Class OLY-Trade is impaired by the Plan. Each holder of an Allowed Olympus Trade Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed Olympus Trade Claim shall receive, in full and complete satisfaction of such Allowed Claim (including simple interest from the Commencement Date to the Effective Date at the rate of eight percent (8%) per annum), its Pro Rata Share of the Olympus Trade Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid.
4.48. Class OLY-Uns—Olympus Other Unsecured Claims.
(a) Impairment and Voting. Class OLY-Uns is impaired by the Plan. Each holder of an Allowed Olympus Other Unsecured Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. Except to the extent that an Allowed Olympus Other Unsecured Claim is an Insured Claim, on the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed Olympus Other Unsecured Claim shall receive, in full and complete
satisfaction of such Allowed Claim (including interest, if any, accrued pursuant to Section 8.14), its Pro Rata Share of the Olympus Other Unsecured Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid. A holder of an Allowed Olympus Other Unsecured Claim that is an Insured Claim shall (i) be paid from the proceeds of insurance to the extent that Claim is insured and such proceeds are not Purchased Assets and (ii) have an Allowed Olympus Other Unsecured Claim to the extent the applicable insurance policy does not provide coverage with respect to any portion of the Insured Claim.
4.49. Class UCA-Bank—UCA Bank Claims.
(a) Impairment and Voting. Class UCA-Bank is impaired by the Plan, and each holder of an Allowed UCA Bank Claim is entitled to vote to accept or reject the Plan.
(b) Allowance. The UCA Bank Claims shall, subject to Section 6.04(c) hereof, be Allowed in the principal amount of $831,375,000, plus interest accrued to (but not including) the Effective Date (the “UCA Bank P&I”), which interest, except as otherwise determined by the Bankruptcy Court in connection with Section 4.49(c)(ii) below, shall be deemed paid in full to the extent the Debtors continue to make payments at the interest rates paid by the Debtors during the Chapter 11 Cases under paragraph 11(c) of the DIP Order.
(c) Distributions. Subject to Section 6.16(a) hereof:
(i) Payment of the UCA Bank P&I. On the later of (x) the Effective Date and (y) the earlier of (A) the date such holder becomes a Released Bank Lender Defendant or (B) compliance by such holder with the requirements of Section 6.16(b), each holder of an Allowed UCA Bank Claim shall receive, in full and complete satisfaction of the UCA Bank P&I portion of such Allowed Claim, its Pro Rata Share of an amount in Cash equal to the Allowed amount of the UCA Bank P&I.
(ii) Reserve for Grid Interest. On the Effective Date, a segregated, interest bearing account held by the Distribution Company shall be funded with Cash equal to interest on the principal amount of the Allowed UCA Bank Claims to (but not including) the Effective Date at the maximum non-default rate set forth in the UCA Credit Agreement, over the interest paid or Allowed on such principal amount (such excess, the “UCA Grid Interest”), which is estimated by the Debtors to be $32,100,000 as of an assumed Effective Date of July 31, 2006. After notice and a hearing, the Bankruptcy Court shall make a determination as to the entitlement of the holders of the UCA Bank Claims to the UCA Grid Interest. In connection with any such determination made pursuant to an order of the
Bankruptcy Court: (x) to the extent the Claim with respect to the disputed UCA Grid Interest is Allowed, such amount of UCA Grid Interest reserve together with the net after-tax earnings on the deposit with respect thereto shall, subject to Section 6.16, be released Pro Rata to each holder of the UCA Bank Claim and (y) the balance of the reserve with respect to the disputed UCA Grid Interest, together with the net after-tax earnings thereon shall be released: (A) if Class UCA-Bank is an Accepting Bank Class, up to the Bank Class Pro Rata Share of $50 million to the Contingent Value Vehicle to be added to the corresponding LIF pursuant to Section 6.08(c)(iv)(C)(1), or (B) otherwise to the UCA Debtor Group Reserve.
(iii) Section 6.16 Escrows. On the Effective Date, a segregated, interest bearing account held by the Distribution Company shall be funded with Cash equal to the excess of (1) the Allowed amount of UCA Bank Claims with respect to UCA Bank P&I, over (2) all distributions to be made on the Effective Date to the holders of UCA Bank Claims. On the date, if any, on which any reserve for UCA Grid Interest is released to the holders of UCA Bank Claims, but a portion of such release is required to be withheld pursuant to Section 6.16, the amount required to be withheld shall be transferred from the reserve set aside for UCA Grid Interest into such account. Upon such date as a holder of UCA Bank Claims is entitled to a distribution pursuant to clause (c)(i)(y) above, such holder shall receive from such account, in full and complete satisfaction of the UCA Bank P&I portion of its Allowed Claim (except as provided in (c)(ii) above), an amount in Cash equal to the Allowed amount of its UCA Bank Claims, plus the net after-tax interest earned on such released amount, if any.
(d) Additional Treatment.
(i) All Bank Lender Fee Claims and all Bank Lender Post-Effective Date Fee Claims arising out of or with respect to the UCA Credit Agreement shall be paid as provided in Section 6.08 hereof.
(ii) All UCA Bank Claims not paid or provided for pursuant to clause (b), (c) or (d)(i) above, including all Claims under Section 502(h) of the Bankruptcy Code and all unpaid interest, fees, costs, expenses and other charges, reimbursements, indemnities or contributions against any Debtor provided for under the UCA Credit Agreement or applicable law, shall only be permitted to be asserted as Bank Counterclaims and Defensive Claims and shall not give rise to any additional distributions under this Plan.
4.50. Class UCA-Trade—UCA Trade Claims.
(a) Impairment and Voting. Class UCA-Trade is impaired by the Plan. Each holder of an Allowed UCA Trade Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an
Allowed UCA Trade Claim shall receive, in full and complete satisfaction of such Allowed Claim (including simple interest from the Commencement Date to the Effective Date at the rate of eight percent (8%) per annum), its Pro Rata Share of the UCA Trade Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid.
4.51. Class UCA-Uns—UCA Other Unsecured Claims.
(a) Impairment and Voting. Class UCA-Uns is impaired by the Plan. Each holder of an Allowed UCA Other Unsecured Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. Except to the extent that an Allowed UCA Other Unsecured Claim is an Insured Claim, on the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed UCA Other Unsecured Claim shall receive, in full and complete satisfaction of such Allowed Claim (including interest, if any, accrued pursuant to Section 8.14), its Pro Rata Share of the UCA Other Unsecured Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid. A holder of an Allowed UCA Other Unsecured Claim that is an Insured Claim shall (i) be paid from the proceeds of insurance to the extent that Claim is insured and such proceeds are not Purchased Assets and (ii) have an Allowed UCA Other Unsecured Claim to the extent the applicable insurance policy does not provide coverage with respect to any portion of the Insured Claim.
4.52. Class OLYParent-Notes—Olympus Parent Notes Claims.
(a) Impairment and Voting. Class OLYParent-Notes is impaired by the Plan. Each holder of an Allowed Olympus Parent Notes Claim is entitled to vote to accept or reject the Plan.
(b) Allowance. The Olympus Parent Notes Claims shall be deemed Allowed Claims in the aggregate amount of (i) $212,986,111, of which $200,000,000 represents principal and $12,986,111 represents interest accrued through the Commencement Date, plus (ii) interest, if any, accrued pursuant to Section 8.14.
(c) Distributions. On the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed Olympus Parent Notes Claim shall receive, in full and complete satisfaction of such Allowed Claim, its Pro Rata Share of the Olympus Parent Notes Distribution, subject to Section 8.07(c), to the extent not previously paid.
4.53. Class OLYParent-Trade—Olympus Parent Trade Claims.
(a) Impairment and Voting. Class OLYParent-Trade is impaired by the Plan. Each holder of an Allowed Olympus Parent Trade Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed Olympus Parent Trade Claim shall receive, in full and complete satisfaction of such Allowed Claim (including interest, if any, accrued pursuant to Section 8.14), its Pro Rata Share of the Olympus Parent Trade Claims Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid.
4.54. Class OLYParent-Uns—Olympus Parent Other Unsecured Claims.
(a) Impairment and Voting. Class OLYParent-Uns is impaired by the Plan. Each holder of an Allowed Olympus Parent Other Unsecured Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. Except to the extent that an Allowed Olympus Parent Other Unsecured Claim is an Insured Claim, on the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed Olympus Parent Other Unsecured Claim shall receive, in full and complete satisfaction of such Allowed Claim (including interest, if any, accrued pursuant to Section 8.14), its Pro Rata Share of the Olympus Parent Other Unsecured Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid. A holder of an Allowed Olympus Parent Other Unsecured Claim that is an Insured Claim shall (i) be paid from the proceeds of insurance to the extent that Claim is insured and such proceeds are not Purchased Assets and (ii) have an Allowed Olympus Parent Other Unsecured Claim to the extent the applicable insurance policy does not provide coverage with respect to any portion of the Insured Claim.
4.55. Class OLYParent-Conv—Olympus Parent Convenience Claims.
(a) Impairment and Voting. Class OLYParent-Conv is impaired by the Plan. Each holder of an Allowed Olympus Parent Convenience Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. Each holder of an Allowed Olympus Parent Convenience Claim shall receive, in full and complete satisfaction of such Allowed Claim, Cash in an amount equal to 95% of the Deemed Value that such holder would have received if the Claim had remained in the Class to which it otherwise belongs; provided, however, that if (i) the holders of Allowed Olympus Parent Convenience Claims do not accept the Plan by the requisite majorities set forth in section 1126(c) of the Bankruptcy Code or (ii) the
holders of Claims which are deemed to be Allowed Olympus Parent Convenience Claims would receive a greater amount of Plan Consideration consisting of Cash if they were treated as holders of Claims in the Class to which they would otherwise belong, then the holders of Allowed Olympus Parent Convenience Claims shall be treated as holders of Claims in the Class to which they would otherwise belong; provided further, however, that in such event any election by a holder of an Allowed Olympus Parent Convenience Claim to reduce the amount of its Allowed Claim to ten thousand dollars ($10,000) shall be null and void.
4.56. Class OLYParent-ESL—Olympus Parent Existing Securities Law Claims.
(a) Impairment and Voting. Class OLYParent-ESL is impaired by the Plan. Each holder of an Allowed Olympus Parent Existing Securities Law Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed Olympus Parent Existing Securities Law Claim shall receive, in full and complete satisfaction of such Allowed Claim, its Pro Rata Share of the Olympus Parent Existing Securities Law Claim Distribution subject to Section 8.07(c), to the extent not previously paid.
4.57. Class OLYParent-FPLNR—FPL Note Nonrecourse Lien Claim.
(a) Impairment and Voting. Class OLYParent-FPLNR is impaired by the Plan, and each holder of an Allowed FPL Note Nonrecourse Lien Claim is entitled to vote to accept or reject the Plan.
(b) Fixing of the FPL Note Nonrecourse Lien Claim. The FPL Note Nonrecourse Lien Claim shall be fixed in an amount equal to the FPL Note Claim, less all distributions pursuant to this Article IV with respect to the FPL Note Claim.
(c) Distributions. On the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed FPL Note Nonrecourse Claim shall receive, in full and complete satisfaction of such Allowed Claim, its Pro Rata Share of the Olympus Parent FPL Note Distribution, subject to Section 8.07(c), to the extent not previously paid.
4.58. Class OlyParent-UCANR—UCA Bank Nonrecourse Lien Claim.
(a) Impairment and Voting. Class OlyParent-UCANR is impaired by the Plan, and each holder of an Allowed UCA Bank Nonrecourse Lien Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. Allowed UCA Bank Nonrecourse Lien Claims shall be deemed to be fully and completely satisfied through the treatment provided under this Plan in respect of the UCA Bank Claims to which such UCA Bank Nonrecourse Lien Claims relate.
4.59. Class RCentCB-Cont—Rigas/Century Contrib/Subrog Claims.
(a) Impairment and Voting. Class RCentCB-Cont is unimpaired by the Plan. Each holder of an Allowed Rigas/Century Contrib/Subrog Claims is conclusively presumed to have accepted the Plan.
(b) Distributions. On the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, Century Cable Holdings LLC, the holder of the Allowed Rigas/Century Contrib/Subrog Claim, shall receive, in full and complete satisfaction of such Allowed Claim, its Pro Rata Share of the Rigas/Century Contrib/Subrog Distribution. Such Distribution shall be deemed to be deposited one-half in the Century Trade Distribution Reserve and one-half in the Century Other Unsecured Distribution Reserve, and further reallocated as provided in Section 9.03(e) hereof.
4.60. Class RCentCB-Trade—Rigas/Century Trade Claims.
(a) Impairment and Voting. Class RCentCB-Trade is impaired by the Plan. Each holder of an Allowed Rigas/Century Trade Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed Rigas/Century Trade Claim shall receive, in full and complete satisfaction of such Allowed Claim (including simple interest from the Commencement Date to the Effective Date at the rate of eight percent (8%) per annum), its Pro Rata Share of the Rigas/Century Trade Distribution, subject to Section 8.07(c), to the extent not previously paid; provided that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid.
4.61. Class RCentCB-Uns— Rigas/Century Other Unsecured Claims.
(a) Impairment and Voting. Class RCentCB-Uns is impaired by the Plan. Each holder of an Allowed Rigas/Century Other Unsecured Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. Except to the extent that an Allowed Rigas/Century Other Unsecured Claim is an Insured Claim, on the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed Rigas/Century Other Unsecured Claim shall receive, in full and complete satisfaction of such Allowed Claim (including interest, if any, accrued pursuant to Section 8.14), its Pro Rata Share of the Rigas/Century Other Unsecured Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid. A
holder of an Allowed Rigas/Century Other Unsecured Claim that is an Insured Claim shall (i) be paid from the proceeds of insurance to the extent that Claim is insured and such proceeds are not Purchased Assets and (ii) have an Allowed Rigas/Century Other Unsecured Claim to the extent the applicable insurance policy does not provide coverage with respect to any portion of the Insured Claim.
4.62. Class RCentCB-CentNR—Century Bank Claims.
(a) Impairment and Voting. Class RCentCB-CentNR is impaired by the Plan, and each holder of an Allowed Century Bank Claim against a Rigas/Century Co-Borrowing Debtor is entitled to vote to accept or reject the Plan.
(b) Distributions. Allowed Century Bank Claims shall be deemed to be fully and completely satisfied through the treatment provided under this Plan in respect of Class Century-Bank.
4.63. Class ROlyCB-Cont—Rigas/ Olympus Contrib/Subrog Claims.
(a) Impairment and Voting. Class ROlyCB-Cont is unimpaired by the Plan. Each holder of an Allowed Rigas/Olympus Contrib/Subrog Claims is conclusively presumed to have accepted the Plan.
(b) Distributions. On the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, Olympus Cable Holdings LLC, the holder of the Allowed Rigas/Olympus Contrib/Subrog Claim shall receive, in full and complete satisfaction of such Allowed Claim, its Pro Rata Share of the Rigas/Olympus Contrib/Subrog Distribution. Such Distribution shall be deemed to be deposited one-half in the Olympus Trade Distribution Reserve and one-half in the Olympus Other Unsecured Distribution Reserve, and further reallocated as provided in Section 9.03(e) hereof.
4.64. Class ROlyCB-Trade—Rigas/Olympus Trade Claims.
(a) Impairment and Voting. Class ROlyCB-Trade is impaired by the Plan. Each holder of an Allowed Rigas/Olympus Trade Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed Rigas/Olympus Trade Claim shall receive, in full and complete satisfaction of such Allowed Claim (including simple interest from the Commencement Date to the Effective Date at the rate of eight percent (8%) per annum), its Pro Rata Share of the Rigas/Olympus Trade Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid.
4.65. Class ROlyCB-Uns— Rigas/Olympus Other Unsecured Claims.
(a) Impairment and Voting. Class ROlyCB-Uns is impaired by the Plan. Each holder of an Allowed Rigas/Olympus Other Unsecured Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. Except to the extent that an Allowed Rigas/Olympus Other Unsecured Claim is an Insured Claim, on the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed Rigas/Olympus Other Unsecured Claim shall receive, in full and complete satisfaction of such Allowed Claim (including interest, if any, accrued pursuant to Section 8.14), its Pro Rata Share of the Rigas/Olympus Other Unsecured Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid. A holder of an Allowed Rigas/Olympus Other Unsecured Claim that is an Insured Claim shall (i) be paid from the proceeds of insurance to the extent that Claim is insured and such proceeds are not Purchased Assets and (ii) have an Allowed Rigas/Olympus Other Unsecured Claim to the extent the applicable insurance policy does not provide coverage with respect to any portion of the Insured Claim.
4.66. Class ROlyCB-OLYNR—Olympus Bank Claims.
(a) Impairment and Voting. Class ROlyCB-OLYNR is impaired by the Plan, and each holder of an Allowed Olympus Bank Claim against a Rigas/Olympus Co-Borrowing Debtor is entitled to vote to accept or reject the Plan.
(b) Distributions. Allowed Olympus Bank Claims shall be deemed to be fully and completely satisfied through the treatment provided under this Plan in respect of Class Olympus-Bank.
4.67. Class RUCACB-Cont—Rigas/UCA Contrib/Subrog Claims.
(a) Impairment and Voting. Class RUCACB-Cont is unimpaired by the Plan. Each holder of an Allowed Rigas/UCA Contrib/Subrog Claims is conclusively presumed to have accepted the Plan.
(b) Distributions. On the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, UCA LLC and National Cable Acquisition Associates, LP, the holders of the Allowed Rigas/UCS Contrib/Subrog Claim shall receive, in full and complete satisfaction of such Allowed Claim, its Pro Rata Share of the Rigas/UCA Contrib/Subrog Distribution. Such Distribution shall be deemed to be deposited one-half in the UCA Trade Distribution Reserve and one-half in the UCA Other Unsecured Distribution Reserve, and further reallocated as provided in Section 9.03(e) hereof.
4.68. Class RUCACB-Trade—Rigas/UCA Trade Claims.
(a) Impairment and Voting. Class RUCACB-Trade is impaired by the Plan. Each holder of an Allowed Rigas/UCA Trade Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed Rigas/UCA Trade Claim shall receive, in full and complete satisfaction of such Allowed Claim (including simple interest from the Commencement Date to the Effective Date at the rate of eight percent (8%) per annum), its Pro Rata Share of the Rigas/UCA Trade Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid.
4.69. Class RUCACB-Uns— Rigas/UCA Other Unsecured Claims.
(a) Impairment and Voting. Class RUCACB-Uns is impaired by the Plan. Each holder of an Allowed Rigas/UCA Other Unsecured Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. Except to the extent that an Allowed Rigas/UCA Other Unsecured Claim is an Insured Claim, on the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed Rigas/UCA Other Unsecured Claim shall receive, in full and complete satisfaction of such Allowed Claim (including interest, if any, accrued pursuant to Section 8.14), its Pro Rata Share of the Rigas/UCA Other Unsecured Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid. A holder of an Allowed Rigas/UCA Other Unsecured Claim that is an Insured Claim shall (i) be paid from the proceeds of insurance to the extent that Claim is insured and such proceeds are not Purchased Assets and (ii) have an Allowed Rigas/UCA Other Unsecured Claim to the extent the applicable insurance policy does not provide coverage with respect to any portion of the Insured Claim.
4.70. Class RUCACB-UCANR—UCA Bank Claims.
(a) Impairment and Voting. Class RUCACB-UCANR is impaired by the Plan, and each holder of an Allowed UCA Bank Claim against a Rigas/UCA Co-Borrowing Debtor is entitled to vote to accept or reject the Plan.
(b) Distributions. Allowed UCA Bank Claims shall be deemed to be fully and completely satisfied through the treatment provided under this Plan in respect of Class UCA-Bank.
4.71. Class Fundco—Funding Company Claims.
(a) Impairment and Voting. Class Fundco is impaired by the Plan. Each holder of an Allowed Funding Company Claim (if any) is entitled to vote to accept or reject the Plan. Notwithstanding anything otherwise to the contrary, no Intercompany Claim shall be included in Class Fundco and any such Claim of a Debtor against Debtors in the Funding Company Debtor Group shall be included in Class InterCo and receive the treatment accorded to Class InterCo.
(b) Distributions. On the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed Funding Company Claim (if any) shall receive, in full and complete satisfaction of such Allowed Claim (including simple interest from the Commencement Date to the Effective Date at the rate of eight percent (8%) per annum) its Pro Rata Share of the Allocable Portion of the Funding Company Distribution Reserve, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid.
4.72. Class GSETL - Government Claims.
(a) Impairment and Voting. Class GSETL is unimpaired by the Plan. Each holder of a Government Claim is conclusively presumed to have accepted the Plan and is not entitled to vote to accept or reject the Plan.
(b) Treatment. The Government Claims shall be Allowed against Adelphia Cablevision, LLC and satisfied by the performance of the Government Settlement Agreements on the Effective Date by Adelphia Cablevision, LLC on behalf of the Debtors.
4.73. Class OPS-Trade—ACC Ops Trade Claims.
(a) Impairment and Voting. Class OPS-Trade is impaired by the Plan. Each holder of an Allowed ACC Ops Trade Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed ACC Ops Trade Claim shall receive, in full and complete satisfaction of such Allowed Claim (including simple interest from the Commencement Date to the Effective Date at the rate of eight percent (8%) per annum), its Pro Rata Share of the ACC Ops Trade Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed
and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid.
4.74. Class OPS-Uns—ACC Ops Other Unsecured Claims.
(a) Impairment and Voting. Class OPS-Uns is impaired by the Plan. Each holder of an Allowed ACC Ops Other Unsecured Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. Except to the extent that an Allowed ACC Ops Other Unsecured Claim is an Insured Claim, on the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed ACC Ops Other Unsecured Claim shall receive, in full and complete satisfaction of such Allowed Claim (including interest, if any, accrued pursuant to Section 8.14), its Pro Rata Share of the ACC Ops Other Unsecured Distribution, subject to Section 8.07(c), to the extent not previously paid; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid. A holder of an Allowed ACC Ops Other Unsecured Claim that is an Insured Claim shall (i) be paid from the proceeds of insurance to the extent that Claim is insured and such proceeds are not Purchased Assets and (ii) have an Allowed ACC Ops Other Unsecured Claim to the extent the applicable insurance policy does not provide coverage with respect to any portion of the Insured Claim.
4.75. Class OPS-OLYNR—Olympus Bank Nonrecourse Lien Claim.
(a) Impairment and Voting. Class OPS-OLYNR is impaired by the Plan, and each holder of an Allowed Olympus Bank Nonrecourse Lien Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. Allowed Olympus Bank Nonrecourse Lien Claims shall be deemed to be fully and completely satisfied through the treatment provided under this Plan in respect of the Olympus Bank Claims to which such Olympus Bank Nonrecourse Lien Claims relate.
4.76. Class OPS-UCANR—UCA Bank Nonrecourse Lien Claim.
(a) Impairment and Voting. Class OPS-UCANR is impaired by the Plan, and each holder of an Allowed UCA Bank Nonrecourse Lien Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. Allowed UCA Bank Nonrecourse Lien Claims shall be deemed to be fully and completely satisfied through the treatment provided under this Plan in respect of the UCA Bank Claims to which such UCA Bank Nonrecourse Lien Claims relate.
4.77. Class ACC-Trade—ACC Trade Claims.
(a) Impairment and Voting. Class ACC-Trade is impaired by the Plan. Each holder of an Allowed ACC Trade Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed ACC Trade Claim shall receive, in full and complete satisfaction of such Allowed Claim (including interest, if any, accrued pursuant to Section 8.14) its Pro Rata Share of: (i) the ACC Trade Claims Distribution, subject to Section 8.07(c), to the extent not previously paid; and (ii) Class ACC-Trade’s Allocable Portion of the CVV Series A-1a Interests; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid.
4.78. Class ACC-Uns—ACC Other Unsecured Claims.
(a) Impairment and Voting. Class ACC-Uns is impaired by the Plan. Each holder of an Allowed ACC Other Unsecured Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. Except to the extent that ACC Other Unsecured Claim is an Insured Claim, on the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed ACC Other Unsecured Claim shall receive, in full and complete satisfaction of such Allowed Claim (including interest, if any, accrued pursuant to Section 8.14) its Pro Rata Share of: (i) the ACC Other Unsecured Distribution, subject to Section 8.07(c), to the extent not previously paid; and (ii) Class ACC-Uns’ Allocable Portion of the CVV Series A-1a Interests; provided, that, to the extent such Claim is an Assumed Sale Liability, it shall instead be Assumed and satisfied in accordance with the applicable Purchase Agreement, to the extent not previously paid. A holder of an Allowed ACC Other Unsecured Claim that is an Insured Claim shall (i) be paid from the proceeds of insurance to the extent that Claim is insured and such proceeds are not Purchased Assets and (ii) have an Allowed ACC Other Unsecured Claim to the extent the applicable insurance policy does not provide coverage with respect to any portion of the Insured Claim.
4.79. Class ACC-SnrNotes—ACC Senior Notes Claims.
(a) Impairment and Voting. Class ACC-SnrNotes is impaired by the Plan. Each holder of an Allowed ACC Senior Notes Claim is entitled to vote to accept or reject the Plan.
(b) Allowance. The ACC Senior Notes Claims shall be deemed Allowed Claims in the aggregate amount of (i) $5,109,693,748, of which $4,936,847,118 represents principal and $172,846,630 represents interest accrued through the Commencement Date plus (ii) interest, if any, accrued pursuant to Section 8.14.
(c) Distributions. On the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed ACC Senior Notes Claim shall receive, in full and complete satisfaction of such Allowed Claim, its Pro Rata Share of: (i) the ACC Notes Distribution, (including interest from the Commencement Date to the Effective Date at the rate specified in Section 8.14, but without giving effect to the limitation imposed by the Debtor Group Maximum Value), subject to Section 8.07(c), to the extent not previously paid; and (ii) Class ACC-SnrNotes’ Allocable Portion of the CVV Series A-1b Interests.
4.80. Class ACC-SubNotes—ACC Subordinated Notes Claims.
(a) Impairment and Voting. Class ACC-SubNotes is impaired by the Plan. Each holder of an Allowed ACC Subordinated Notes Claim is entitled to vote to accept or reject the Plan.
(b) Allowance. The ACC Subordinated Note Claims shall be deemed Allowed Claims in the aggregate amount of (i) $1,458,990,625, of which $1,437,500,000 represents principal and $21,490,625 represents interest accrued through the Commencement Date plus (ii) interest, if any, accrued pursuant to Section 8.14.
(c) Distributions. Subject to the next sentence, on the Initial Distribution Date, and on each Periodic Distribution Date thereafter, or as soon thereafter as is practicable, each holder of an Allowed ACC Subordinated Notes Claim shall receive, in full and complete satisfaction of such Allowed Claim, its Pro Rata Share of (i) the ACC Subordinated Notes Distribution, subject to Section 8.07(c), to the extent not previously paid and (ii) Class ACC-SubNotes’ Allocable Portion of the CVV Series A-1c Interests. In accordance with and in enforcement of the subordination provisions of the indentures relating to the ACC Subordinated Notes (the “Subordination Provisions”) the ACC Notes Distribution shall include the X-Clause CVV Sharing Percentage and the X-Clause Sharing Percentage, absent an Order of the Bankruptcy Court to the contrary on or before the Confirmation Date. Notwithstanding the Subordination Provisions, each Holder of an Allowed ACC Subordinated Note Claim shall be entitled to receive and retain, on account of such claim, its ratable share of the ACC Subordinated Notes Distribution, based upon the amount of ACC Subordinated Notes held by each holder.
4.81. Class ACC-ESL Snr—ACC Senior Notes Existing Securities Law Claims.
(a) Impairment and Voting. Class ACC-ESL Snr is impaired by the Plan. Each holder of an Allowed ACC Senior Notes Existing Securities Law Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Effective Date, or as soon thereafter as is practicable, each holder of an Allowed ACC Senior Notes Existing Securities Law Claim shall receive, in full and complete satisfaction of such Allowed Claim, its Pro Rata Share of Class ACC-ESL Snr’s Allocable Portion of the CVV Series A-2a Interests.
4.82. Class ACC-ESL Sub—ACC Subordinated Notes Existing Securities Law Claims.
(a) Impairment and Voting. Class ACC-ESL Sub is impaired by the Plan. Each holder of an Allowed ACC Subordinated Notes Existing Securities Law Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Effective Date, or as soon thereafter as is practicable, each holder of an Allowed ACC Subordinated Notes Existing Securities Law Claim shall receive, in full and complete satisfaction of such Allowed Claim, its Pro Rata Share of Class ACC-ESL Sub’s Allocable Portion of the CVV Series A-2b Interests.
4.83. Class ACC-BPfd—ACC Series B Preferred Stock Interests.
(a) Impairment and Voting. Class ACC-BPfd is impaired by the Plan. Each holder of an Allowed ACC Series B Preferred Stock Interest is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Effective Date, or as soon thereafter as is practicable, each holder of an Allowed ACC Series B Preferred Stock Interest shall receive, in full and complete satisfaction of such Allowed Equity Interest, such Allowed Equity Interest’s Pro Rata Share of Class ACC-BPfd’s Allocable Portion of the CVV Series B Interests.
4.84. Class ACC-BESL—ACC Series B Preferred Stock Existing Securities Law Claims.
(a) Impairment and Voting. Class ACC-BESL is impaired by the Plan. Each holder of an Allowed ACC Series B Preferred Stock Existing Securities Law Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Effective Date, or as soon thereafter as is practicable, each holder of an Allowed ACC Series B Preferred Stock Existing Securities Law Claim shall receive, in full and complete satisfaction of such Allowed Claim, its Pro Rata Share of Class ACC-BESL’s Allocable Portion of the CVV Series C Interests.
4.85. Class ACC-DPfd—ACC Series D Preferred Stock Interests.
(a) Impairment and Voting. Class ACC-DPfd is impaired by the Plan. Each holder of an Allowed ACC Series D Preferred Stock Interest is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Effective Date, or as soon thereafter as is practicable, each holder of an Allowed ACC Series D Preferred Stock Interest shall receive, in full and complete satisfaction of such Allowed Equity Interest, such Allowed Equity Interest’s Pro Rata Share of Class ACC-DPfd’s Allocable Portion of the CVV Series D Interests.
4.86. Class ACC-DESL—ACC Series D Preferred Stock Existing Securities Law Claims.
(a) Impairment and Voting. Class ACC-DESL is impaired by the Plan. Each holder of an Allowed ACC Series D Preferred Stock Existing Securities Law Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Effective Date, or as soon thereafter as is practicable, each holder of an Allowed ACC Series D Preferred Stock Existing Securities Law Claim shall receive, in full and complete satisfaction of such Allowed Claim, its Pro Rata Share of Class ACC-DESL’s Allocable Portion of the CVV Series E Interests.
4.87. Class ACC-EFPfd—ACC Series E and F Preferred Stock Interests.
(a) Impairment and Voting. Class ACC-EFPfd is impaired by the Plan. Each holder of an Allowed ACC Series E and F Preferred Stock Interest is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Effective Date, or as soon thereafter as is practicable, each holder of an Allowed ACC Series E and F Preferred Stock Interest shall receive, in full and complete satisfaction of such Allowed Equity Interest, such Allowed Equity Interest’s Pro Rata Share of Class ACC-EFPfd’s Allocable Portion of the CVV Series F Interests. Notwithstanding anything otherwise to the contrary, to the extent an order of the Bankruptcy Court holds that the mandatory conversion provisions of the foregoing ACC Series E and F Preferred Stock Interests resulted in a conversion of such preferred stock interests, the ACC Series E and F Preferred Stock shall be included in Class ACC-CS for all purposes under this Plan and shall have the rights of Equity Interests in such Class, and this Section 4.87 shall be disregarded and have no effect.
4.88. Class ACC-EFESL—ACC Preferred Series E and F Stock Existing Securities Law Claims.
(a) Impairment and Voting. Class ACC-EFESL is impaired by the Plan. Each holder of an Allowed ACC Series E and F Preferred Stock Existing Securities Law Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Effective Date, or as soon thereafter as is practicable, each holder of an Allowed ACC Series E and F Preferred Stock Existing Securities Law Claim shall receive, in full and complete satisfaction of such Allowed Claim, its Pro Rata Share of Class ACC-EFESL’s Allocable Portion of the CVV Series G Interests.
4.89. Class ACC-CSESL—ACC Common Stock Existing Securities Law Claims.
(a) Impairment and Voting. Class ACC-CSESL is impaired by the Plan, and consists of all Common Stock Existing Securities Law Claims. Each holder of an ACC Common Stock Existing Securities Law Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Effective Date, or as soon thereafter as is practicable, each holder of an Allowed ACC Common Stock Existing Securities Law Claim shall receive, in full and complete satisfaction of such Allowed Equity Interest, such Allowed Equity Interest’s Pro Rata Share of Class ACC-CSESL’s Allocable Portion of the CVV Series H Interests.
4.90. Class ACC-CS—ACC Common Stock Interests.
(a) Impairment and Voting. Class ACC-CS is impaired by the Plan, and consists of all ACC Common Stock Interests. Each holder of an Allowed ACC Common Stock Interest is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Effective Date, or as soon thereafter as is practicable, each holder of an Allowed ACC Common Stock Interest shall receive, in full and complete satisfaction of such Allowed Equity Interest, such Allowed Equity Interest’s Pro Rata Share of Class ACC-CS’s Allocable Portion of the CVV Series I Interests.
4.91. Class ACC-Conv—ACC Convenience Claims.
(a) Impairment and Voting. Class ACC-Conv is impaired by the Plan. Each holder of an Allowed ACC Convenience Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. Each holder of an Allowed ACC Convenience Claim shall receive, in full and complete satisfaction of such Allowed Claim, Cash in an amount equal to 95% of the Deemed Value that such holder would have received if the Claim had remained in the Class to which it otherwise belongs; provided, however, that if (i) the holders of Allowed ACC Convenience Claims do not accept the Plan by the requisite majorities set forth in section 1126(c) of the Bankruptcy Code or (ii) the holders of Claims which are deemed to be Allowed ACC Convenience Claims would receive a greater amount of Plan Consideration consisting of Cash if they were treated as holders of Claims in the Class to which they would otherwise belong, then the holders of Allowed ACC Convenience Claims shall be treated as holders of Claims in the Class to which they would otherwise belong; provided further, however, that in such event any election by a holder of an Allowed ACC Convenience Claim to reduce the amount of its Allowed Claim to ten thousand dollars ($10,000) shall be null and void.
4.92. Class InterCo—Intercompany Claims. In consideration of the benefits provided under the Plan, including the Global Compromise, the Intercompany Claims shall be Allowed and treated as provided for in the Inter-Creditor Dispute Resolution. Upon the occurrence of the Effective Date, each Intercompany Claim shall be discharged and satisfied by means of: (a) the Restructuring Transactions contemplated by the Plan; and (b) allocations of Plan Consideration pursuant to Section 9.03 hereof (and any order of the Bankruptcy Court sought thereunder) to the Debtor Group Reserves of such Intercompany Claim’s Debtor Group in amounts that give effect to the relative seniority and treatment of such Intercompany Claim under this Section. All Intercompany Claims held by any Debtor against any Non-Debtor Subsidiary (other than Claims
against the Palm Beach Joint Venture (as defined in the Comcast Purchase Agreement), which Claims shall be transferred in accordance with the Comcast Purchase Agreement) or by any Non-Debtor Subsidiary against any Debtor (other than (i) Claims against the Transferred Joint Venture Entities, which Claims shall be discharged (except to the extent they constitute defenses or set-offs to Retained Claims) and (ii) Claims of a non-Debtor Affiliate against a Debtor arising in connection with the transfer of an asset by such non-Debtor Affiliate to a Debtor pursuant to Section 5.13(h) of the TW Purchase Agreement or Section 5.11(h) of the Comcast Purchase Agreement, which Claims shall be satisfied in accordance with their terms) shall be reviewed by the Reorganized Debtors and adjusted, continued, or discharged, as determined by the Reorganized Debtors in their sole discretion.
4.93. Rigas Claims or Equity Interests. All Rigas Claims and Equity Interests shall be Disallowed and expunged. Each holder of a Rigas Claim or Equity Interest shall receive no distribution under this Plan with respect to such Rigas Claim or Equity Interest. The Plan shall not create any right of any holder of a Rigas Claim or Equity Interest to assert such Claim or Equity Interest against any of the Debtors’ insurance policies.
4.94. ACC Other Equity Interests. All ACC Other Equity Interests shall be Disallowed. Each holder of an ACC Other Equity Interest shall receive no distribution under this Plan with respect to such ACC Other Equity Interest.
ARTICLE V.
SUBSTANTIVE CONSOLIDATION
5.01. Substantive Consolidation. In consideration of the benefits provided under the Plan, including the Global Compromise, this Plan provides for the substantive consolidation of the Debtors in accordance with the terms set forth in this Article V, but only for purposes of voting with respect to the confirmation of the Plan and effectuating the settlements contemplated by, and making distributions under, this Plan. Except as set forth in this Article, such substantive consolidation will not: (a) affect the legal and corporate structures of the Debtors or Reorganized Debtors, subject to the right of the Debtors or Reorganized Debtors to effect the Restructuring Transactions contemplated by this Plan, (b) cause any Debtor to be liable for any Claim or Equity Interest under this Plan for which it otherwise is not liable, and the liability of any Debtor for any such Claim or Equity Interest will not be affected by such substantive consolidation, (c) except as otherwise stated in this Plan, affect Intercompany Claims, (d) affect any pre and post-Commencement Date guarantees, Liens, and security interests that are required to be maintained (i) in connection with executory contracts or unexpired leases that were entered into during the Chapter 11 Cases or that have been or will be assumed and/or assigned and/or retained, or (ii) pursuant to the Plan, (e) affect any defenses to any Cause of Action or requirements for any third party to establish mutuality in order to assert a right of setoff, (f) affect distributions out of any insurance policies or proceeds of such policies, (g) affect Equity Interests in the Debtors except as otherwise may be required in connection with the Restructuring Transactions contemplated by this Plan, (h) constitute a change of control (or a change in working control) of any Debtor for any purpose, including under any franchise agreement, executory contract, pole attachment agreement or other agreement (whether entered into before or after the Commencement Date) or (i) prejudice or otherwise affect the rights of holders of
Claims or Equity Interests with respect to the Inter-Creditor Dispute Holdback. Notwithstanding anything herein to the contrary, the Debtors may elect in their sole and absolute discretion, at any time through and until the Effective Date, to consolidate the Debtors (other than the Transferred Joint Venture Entities) and Reorganized Debtors for additional purposes. Should the Debtors make such an election, the Debtors will not, nor will they be required to, resolicit votes with respect to this Plan. Substantive consolidation shall not alter the distributions set forth herein or adversely affect any Defensive Claims.
5.02. Substantive Consolidation of the Debtors into Separate Debtor Groups. Entry of the Confirmation Order shall constitute the approval, pursuant to section 105(a) of the Bankruptcy Code, effective as of the Effective Date, of the substantive consolidation of the Debtors into twenty separate and distinct groups (each such group, a “Debtor Group”), which groups shall consist of the following Debtors for all purposes related to the Plan, including for purposes of voting, confirmation, and distribution:
(a) an “ACC Ops Debtor Group” consisting solely and exclusively of the ACC Ops Debtors;
(b) an “Adelphia GP Holdings Debtor Group” consisting solely and exclusively of the Adelphia GP Holdings Debtors;
(c) an “Arahova Debtor Group” consisting solely and exclusively of the Arahova Debtors;
(d) a “CCC Debtor Group” consisting solely and exclusively of the CCC Debtors;
(e) a “CCHC Debtor Group” consisting solely and exclusively of the CCHC Debtors;
(f) a “Century Debtor Group” consisting solely and exclusively of the Century Debtors;
(g) a “Century-TCI Debtor Group” consisting solely and exclusively of the Century-TCI Debtors and the Century-TCI Distribution Company;
(h) a “FrontierVision Debtor Group” consisting solely and exclusively of the FrontierVision Debtors;
(i) a “FrontierVision Holdco Debtor Group” consisting solely and exclusively of the FrontierVision Holdco Debtors;
(j) a “Ft. Myers Debtor Group” consisting solely and exclusively of the Ft. Myers Debtors;
(k) a “Ft. Myers Subsidiary Debtor Group” consisting solely and exclusively of the Ft. Myers Subsidiary Debtors;
(l) a “Funding Company Debtor Group” consisting solely and exclusively of the Funding Company Debtors;
(m) a “Holding Company Debtor Group” consisting solely and exclusively of the Holding Company Debtors;
(n) an “Olympus Debtor Group” consisting solely and exclusively of the Olympus Debtors;
(o) an “Olympus Parent Debtor Group” consisting solely and exclusively of the Olympus Parent Debtors;
(p) a “Parnassos Debtor Group” consisting solely and exclusively of the Parnassos Debtors and the Parnassos Distribution Companies;
(q) a “Rigas/Century Co-Borrowing Debtor Group” consisting solely and exclusively of the Rigas/Century Co-Borrowing Debtors;
(r) a “Rigas/Olympus Co-Borrowing Debtor Group” consisting solely and exclusively of the Rigas/Olympus Co-Borrowing Debtors;
(s) a “Rigas/UCA Co-Borrowing Debtor Group” consisting solely and exclusively of the Rigas/UCA Co-Borrowing Debtors; and
(t) a “UCA Debtor Group” consisting solely and exclusively of the UCA Debtors.
5.03. Treatment of Debtor Group Claims and Equity Interests. For purposes of Section 5.01 of the Plan, (i) all assets and liabilities of the applicable Debtors within each Debtor Group shall be treated as though they were merged with the assets and liabilities of the other Debtors within such Debtor Group, (ii) no distributions shall be made under the Plan on account of any Claim held by a Debtor against any other Debtor within its Debtor Group, (iii) except as provided in Section 6.02(g) of this Plan, no distributions shall be made under the Plan on account of any Equity Interest held by a Debtor in any other Debtor within its Debtor Group, (iv) all guarantees of the Debtors of the obligations of any other Debtor within its Debtor Group shall be eliminated so that any Claim against any Debtor and any guarantee thereof executed by any other Debtor and any joint or several liability of any of the Debtors within a Debtor Group shall be one obligation of the Debtors within such Debtor Group, and (v) each and every Claim filed or to be filed in the Chapter 11 Case of any of the Debtors within a Debtor Group shall be deemed filed against the Debtors within such Debtor Group, and shall be one Claim against and obligation of the Debtors within such Debtor Group. Notwithstanding anything otherwise to the contrary herein, the substantive consolidation hereunder shall not affect any Claims or Equity Interests held by a Debtor in or against a Debtor in a separate Debtor Group.
5.04. Order Granting Consolidation; Substantive Consolidation. The Disclosure Statement and this Plan shall be deemed to be a motion requesting that the Bankruptcy Court approve the substantive consolidation provided for in this Plan, as well as any additional consolidation that may be proposed by the Debtors in connection with confirmation and
consummation of the Plan. Unless an objection to consolidation is made in writing by any creditor affected by the Plan as herein provided on or before 4:00 p.m. Eastern Time, on the date fixed by the Bankruptcy Court for objections to confirmation of the Plan, the substantive consolidation proposed by this Plan may be approved by the Bankruptcy Court at the Confirmation Hearing. In the event any such objections are timely filed, a hearing with respect thereto shall be scheduled by the Bankruptcy Court, which hearing may, but need not, coincide with the Confirmation Hearing.
5.05. The Plan Consists of Twenty Consolidated Debtor Groups. Notwithstanding the fact that this Plan consists of twenty separate Debtor Groups, the Plan governs the treatment of each of the jointly administered Debtors, one or more of which may ultimately be excluded from the Plan pursuant to Section 8.02 hereof. In addition, subject to the satisfaction or waiver of the conditions set forth in Article XIII hereof, the Buyers’ rights, if any, under the Sale Transaction Documents, and any applicable restrictions under the Trade Plan Support Agreement, the Debtors may amend the Plan pursuant to Section 15.08 of this Plan to, among other things, exclude any Debtor or Debtor Group from the Plan.
ARTICLE VI.
IMPLEMENTATION OF THE PLAN
6.01. Continued Corporate Existence.
(a) The Debtors. Subject to the Restructuring Transactions contemplated by this Plan, and the effects of the Sale Transactions, each of the Debtors will continue to exist after the Effective Date as a separate legal entity, with all the powers available to such entity under applicable law in the jurisdiction in which each applicable Debtor is organized or otherwise formed and pursuant to its certificate of incorporation and by-laws or other organizational documents in effect prior to the Effective Date, except to the extent such certificate of incorporation and by-laws or other organizational documents are amended by this Plan, without prejudice to any right to terminate such existence (whether by merger or otherwise) under applicable law after the Effective Date. From and after the Effective Date, the Distribution Company shall be the sole and exclusive owner of all of the issued and outstanding capital stock of ACC to be held in the Holding Company Distribution Reserve pursuant to Section 9.03(a)(iii) hereof, and the Contingent Value Vehicle shall be the sole and exclusive owner of all of the issued and outstanding equity interests in the Distribution Company.
(b) Non-Debtors. There are certain Affiliates of the Debtors that are not Debtors in these Chapter 11 Cases. The continued existence, operation and ownership of such non-Debtor Affiliates is a material component of the Debtors’ businesses, and, as set forth in Section 6.06 of this Plan, subject to the effects of the Sale Transactions, all of the Debtors’ Equity Interests and other property interests in such non-Debtor Affiliates shall revest in the applicable Reorganized Debtors or their successors on the Effective Date.
6.02. Sale Transactions.
(a) Consummation of Sale Transactions. On the Effective Date, the Debtors, the Reorganized Debtors and the Transferred Joint Venture Entities (as applicable) shall consummate either (i) the Sale Transactions to occur at the Sale Transaction Closing or (ii) in the event the Debtors or the Reorganized Debtors and Comcast are unable to consummate the Comcast Adelphia Acquisition for the reasons specified in Section 5.15 of the TW Purchase Agreement, the TW Expanded Transaction. To the extent that pursuant to the applicable Purchase Agreement the Debtors or Reorganized Debtors (as applicable) are not required to consummate on the date of the Sale Transaction Closing one or more transactions to occur under the applicable Purchase Agreements (including in relation to any Disputed MCE System or Delayed Transfer Asset, in each case as defined in the Purchase Agreements), the Reorganized Debtors shall consummate such transaction to the extent required by and in accordance with the applicable Purchase Agreement. On the Effective Date, the Debtors (other than the Transferred Joint Venture Entities) on behalf of the Reorganized Debtors, or the Reorganized Debtors, shall enter into the Transaction Escrow Agreements and shall apply the proceeds of the Sale Transactions (less any amounts deposited in the Transaction Escrows and any other reserves or escrows established under the Purchase Agreements which shall be treated as provided in the Purchase Agreements) in accordance with this Plan. In connection with the consummation of the Sale Transactions and except as set forth in the Sale Transaction Documents, on the Effective Date (or such later date as may be provided in the Sale Transaction Documents), the Purchased Assets shall be transferred by the Debtors, the Reorganized Debtors or the applicable Distribution Company to the respective Buyer (or retained by the applicable Transferred Joint Venture Entity that is the holder of such Purchased Assets) in accordance with the applicable Purchase Agreement (and, to the extent applicable, the Expanded Transaction Letter Agreement) pursuant to, among others (to the extent they apply), sections 105, 363(b) and (f), 365, 1123(a)(5)(B) and (D) and (b)(4) and (6) and 1141 of the Bankruptcy Code, and the provisions of the Confirmation Order, free and clear of all Encumbrances, other than Permitted Encumbrances. Following the Sale Transaction Closing, (a) the Debtor Group Reserves and other reserves shall be funded as provided in Section 9.03(a) hereof, (b) the Designated Litigation shall be transferred to the Contingent Value Vehicle in accordance with Section 7.03 hereof, and (c) all other assets and Equity Interests of the Reorganized Debtors (other than the Purchased Assets) shall be revested in the Reorganized Debtors as provided in Section 12.03 hereof. Pursuant to Section 9.5 of the Comcast Purchase Agreement and Section 9.5 of the TW Purchase Agreement, as and to the extent provided in the Sale Transaction Documents, the Debtors (other than the Transferred Joint Venture Entities, except to the extent provided in Section 9.5 of each Purchase Agreement) or the Reorganized Debtors shall be jointly and severally liable for any breach or violation of ACC’s representations, warranties or covenants under the Purchase Agreements, including for any purchase price adjustment pursuant to Section 2.8(f) of the Comcast Purchase Agreement or Section 2.6(f) of the TW Purchase Agreement.
(b) Assumed Sale Liabilities. On the Effective Date, the Assumed Sale Liabilities shall be Assumed. To the extent that pursuant to the applicable Purchase Agreement the Debtors or Reorganized Debtors (as applicable) are not required to
consummate on the Effective Date one or more transactions to occur under the applicable Purchase Agreement pursuant to which liabilities will be Assumed (including in relation to a Disputed MCE System or Delayed Transfer Asset, in each case as defined in the Purchase Agreements), the Reorganized Debtors shall consummate such transaction to the extent required by and in accordance with the applicable Purchase Agreement. Except to the extent Assumed Sale Liabilities are Assumed by a Transferred Joint Venture Entity pursuant to the applicable Purchase Agreement, which Assumed Sale Liabilities shall be obligations of such Transferred Joint Venture Entity, from and after the Effective Date (or, with respect to an Assumed Sale Liability Assumed after the Sale Transaction Closing, from and after such later date as such liability may be Assumed in accordance with the applicable Purchase Agreement), none of the Assumed Sale Liabilities shall any longer be obligations of the Distribution Companies, the Debtors, their estates, the Reorganized Debtors, or the Contingent Value Vehicle and the holder of any Claim with respect thereto shall have no recourse on account of such Claim, against the Debtors, the Plan Administrator, the Reorganized Debtors, the Distribution Companies or the Contingent Value Vehicle. From and after the Effective Date, none of the Buyers or the Transferred Joint Venture Entities shall have any Liability for any Claims against or Liabilities of the Debtors (other than to the extent of any applicable Assumed Sale Liabilities) and the holder of any Claim and the Person to whom such Liability is owed shall have no recourse with respect thereto on account of such Claim or such Liability against any of the Buyers or the Transferred Joint Venture Entities.
(c) Management of Reorganized Debtors’ Assets. After the Effective Date, all property of the Reorganized Debtors (including the Excluded Assets) shall be managed and administered by the Plan Administrator in a manner reasonably designed to maximize values for the Debtors’ creditors; provided, however, that the foregoing shall in no way limit or abrogate the Debtors’ and Reorganized Debtors’ obligations to perform any obligation or transaction to be performed under the Purchase Agreements, including in relation to any Disputed MCE System (as defined in the Purchase Agreements) or Delayed Transfer Asset, in each case as defined in the Purchase Agreements. If the Plan Administrator, in his/her discretion decides not to sell any non-Cash property other than the Plan Consideration or if such property cannot, in the Plan Administrator’s judgment be sold in a commercially reasonable manner prior to the date of the final distribution under this Plan, the Plan Administrator shall have the right to abandon or otherwise dispose of such property with the prior approval of the Bankruptcy Court. Absent willful misconduct or fraud in connection therewith, no party in interest shall have a cause of action against either the Debtors, the Reorganized Debtors, Distribution Companies, the Plan Administrator or the Contingent Value Vehicle, or their respective directors, officers, employees, consultants, trustees or professionals arising from or related to the disposition of non-Cash property in accordance with this Section. No party in interest shall have a Cause of Action against the Transferred Joint Venture Entities or their respective directors, officers, employees, consultants, trustees or professionals arising from or related to the disposition of non-Cash property in accordance with this Section.
(d) Except as may be restricted by the Sale Transaction Documents, on or as of the Effective Date, within the sole and exclusive discretion of the Plan Administrator, the Debtors or the Reorganized Debtors may, notwithstanding any other transactions
described in this Section 6.02: (i) cause any or all of the Debtors or the Reorganized Debtors to be merged into one or more of the Debtors or the Reorganized Debtors or dissolved, (ii) cause the transfer of assets between or among the Debtors or the Reorganized Debtors or (iii) engage in any other transaction in furtherance of the Plan. Any such transaction shall be effective as of the Effective Date pursuant to the Confirmation Order without any further action by the stockholders or directors of any of the Debtors, the Debtors in Possession, or the Reorganized Debtors. It is the present intention of the Debtors to utilize this provision to merge, dissolve or transfer certain of its Subsidiaries and transfer certain executory contracts, unexpired leases, and other assets to the surviving Subsidiaries.
(e) Except as may be restricted by the Sale Transaction Documents, on or prior to the Effective Date, the Debtors and Reorganized Debtors shall take such actions as may be necessary or appropriate to effect the relevant Restructuring Transactions, including all of the transactions described in this Plan, and, with respect to the Sale Transactions, shall take such actions as required by the Sale Transaction Documents. Such actions may include: (i) the execution and delivery of appropriate agreements or other documents of merger, consolidation or reorganization containing terms that are consistent with the terms of this Plan and the Sale Transaction Documents and that satisfy the requirements of applicable law; (ii) the execution and delivery of appropriate instruments of transfer, assignment, assumption or delegation of any property, right, liability, duty or obligation on terms consistent with the terms of this Plan, including the instruments described in Section 2.10 of the TW Purchase Agreement and Section 2.12 of the Comcast Purchase Agreement; (iii) the filing of appropriate certificates of incorporation, merger or consolidation with the appropriate governmental authorities under applicable law; and (iv) all other actions that Debtors and Reorganized Debtors determine are necessary or appropriate, including the making of filings or recordings in connection with the relevant Restructuring Transaction or Sale Transactions. The form of each Restructuring Transaction shall be determined by the Boards of Directors of a Debtor or Reorganized Debtor party to any Restructuring Transaction. In the event a Restructuring Transaction is a merger transaction, upon the consummation of such Restructuring Transaction, each party to such merger shall cease to exist as a separate entity and thereafter the surviving Reorganized Debtor shall assume and perform the obligations of each Reorganized Debtor under this Plan. In the event a Reorganized Debtor is liquidated and dissolved, the Reorganized Debtors (or the Reorganized Debtor which owned the stock of such liquidating Reorganized Debtor prior to such liquidation and dissolution) shall assume and perform such obligations. Implementation of the Restructuring Transactions shall not affect the distributions under the Plan. The rights and obligations of the parties to the Sale Transactions shall be as set forth in the Sale Transaction Documents.
(f) In the Confirmation Order, the Bankruptcy Court shall approve the terms of the Sale Transaction Documents (with respect to such documents which are filed with the Bankruptcy Court, in substantially the form filed with the Bankruptcy Court (and with such changes as to which the applicable Debtors and the Buyers may agree)), and shall authorize the applicable Debtors, Reorganized Debtors and Transferred Joint Venture Entities to execute such documents as the applicable Debtors and the applicable agents
and lenders or Buyers may reasonably require in order to effectuate the treatment afforded to such parties under the Sale Transaction Documents and to consummate the Sale Transactions.
(g) Confirmation of the Plan shall constitute the assignment as of the Effective Date (x) by Century Exchange LLC to Century-TCI Distribution Company of all rights to receive distributions from the Century-TCI Joint Venture and all proceeds from the sale of the Century-TCI Joint Venture, in exchange for the agreement of the Century-TCI Distribution Company to assume the obligation to make all distributions under this Plan with respect to the liabilities of the Century-TCI Joint Venture, (y) by Adelphia Western New York Holdings, L.L.C. to Parnassos Distribution Company I, LLC of all rights to receive distributions from the Parnassos Joint Venture held by Adelphia Western New York Holdings, L.L.C. and all proceeds received by Adelphia Western New York Holdings, L.L.C. from the sale of the Parnassos Joint Venture, in exchange for the agreement of Parnassos Distribution Company I, LLC to assume the obligation of Adelphia Western New York Holdings, L.L.C. to make all distributions under this Plan with respect to the liabilities of the Parnassos Joint Venture and (z) by Montgomery Cablevision, Inc. to Parnassos Distribution Company II, LLC of all rights to receive distributions from the Parnassos Joint Venture held by Montgomery Cablevision, Inc. and all proceeds received by Montgomery Cablevision, Inc. from the sale of the Parnassos Joint Venture, in exchange for the agreement of Parnassos Distribution Company II, LLC to assume the obligation of Montgomery Cablevision, Inc. to make all distributions under this Plan with respect to the liabilities of the Parnassos Joint Venture.
(h) On the Effective Date, Century Exchange LLC shall consummate the Sale Transactions with respect to the Century-TCI Joint Venture and Adelphia Western New York Holdings, L.L.C. and Montgomery Cablevision, Inc. shall consummate the Sale Transactions with respect to the Parnassos Joint Venture, in each case as Seller JV Partner (as defined in the Comcast Purchase Agreement) in accordance with the applicable Sale Transaction Documents. From and after the Effective Date, the Century-TCI Distribution Company and the Parnassos Distribution Companies shall make distributions under and in accordance with this Plan from the Century-TCI Debtor Group Reserve and the Parnassos Debtor Group Reserve, respectively.
6.03. Certificates of Incorporation and By-laws. The New Certificate of Incorporation and New By-Laws shall be adopted in accordance with the TW Purchase Agreement and the Certificates of Incorporation and By-laws (or other organizational documents, as applicable, including any documents required in connection with a Sale Transaction) of each of the Reorganized Debtors shall be adopted and amended as may be required in order that they are consistent with the provisions of the Purchase Agreements, this Plan and the Bankruptcy Code. The forms of New Certificate of Incorporation and New By-laws will be included in the Plan Supplement. Any modification to the New Certificate of Incorporation as originally filed may be filed after the Confirmation Date and may become effective on or prior to the Effective Date.
6.04. Compromise and Settlements.
(a) Global Compromise. Except for the Inter-Creditor Dispute prior to the Inter-Creditor Dispute Resolution:
(i) Pursuant to Bankruptcy Rule 9019 and in consideration of the distributions and other benefits provided under this Plan, the provisions of this Plan will constitute a good faith compromise and settlement (such compromise and settlement, the “Global Compromise”) of all Claims and controversies between the Debtors and the holders of Claims against, and Equity Interests in, the respective Debtor Groups on all matters relating to among other things: (A) the substantive consolidation of the Debtors within their respective Debtor Groups; (B) the Transferred Subscriber Transactions; (C) the amounts, allowance, relative priority and treatment of all Intercompany Claims; (D) the form of currency to be distributed hereunder on account of Allowed Claims and Equity Interests; (E) the relative valuation of the different Debtor Groups; (F) the allocation of the costs and benefits of the Government Settlement; (G) the rate at which interest shall accrue for purposes of distributions under this Plan with respect to Claims from the Commencement Date through the Effective Date (including whether such interest shall be compounded or accrue as simple interest); (H) any Bank Actions designated as “Dismissed Bank Actions” pursuant to clause (i) of the definition of Dismissed Bank Actions; (I) any Proposed Settlement of the Inter-Creditor Dispute accepted pursuant to Article XVI hereof; and (J) the Trade Plan Support Agreement.
(ii) Any distributions to be made pursuant to this Plan shall be made on account and in consideration of the Global Compromise, which, upon the Effective Date, shall be binding on all Persons, including the Debtors, the Reorganized Debtors, the Transferred Joint Venture Entities, all holders of Claims and Equity Interests (whether or not Allowed), and all Persons entitled to receive any payments or other distributions under the Plan. Entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval, as of the Effective Date, of the compromise and settlement of all such Claims or controversies and the Bankruptcy Court’s finding that such compromise and settlement is in the best interests of the Debtors, the Reorganized Debtors, the Transferred Joint Venture Entities, their respective estates, and the holders of such Claims and Equity Interests, and is fair, equitable and reasonable.
(iii) By virtue of and integral to the compromise and settlement of disputes relating to the substantive consolidation pursuant to the Global Compromise, on the Effective Date, except as otherwise provided by or to the extent necessary in connection with the treatment of Intercompany Claims contemplated by Section 4.92 of this Plan, and except with respect to Retained Claims (and defenses and set-offs thereto), (A) each Debtor shall waive any defense, including defenses arising under sections 502(d) of the Bankruptcy Code, to Intercompany Claims asserted by another Debtor and such Claims shall be deemed to be Allowed Claims, (B) Intercompany Claims between Debtors shall
not be deemed to be mutual claims arising prior to the Commencement Date for purposes of setoff, (C) except for the Contrib/Subrog Claims and as provided in Section 9.03(f) herein, each of the Debtors and Debtors in Possession shall waive its right to receive distributions on any Claims and Causes of Action such Debtor and Debtor in Possession may have against another Debtor and Debtor in Possession, arising in accordance with sections 509, 544, 547, 548 and 553(b) of the Bankruptcy Code, without waiving or releasing any Claims and Causes of Action against non-Debtor parties and (D) each Debtor and Debtor in Possession shall waive and forever release any right, Claim or Cause of Action which has been or could have been asserted by such Debtor or Debtor in Possession against any other Debtor and Debtor in Possession, including pursuant to principles of substantive consolidation, piercing the corporate veil, alter ego, domination, constructive trust and similar principles of state or federal creditors’ rights laws; provided, however, the foregoing shall not prejudice or otherwise affect the rights of the creditors of the Arahova, FrontierVision Holdco, Holding Company or Olympus Parent Debtor Groups with respect to any litigation regarding the allocation of the Inter-Creditor Dispute Holdback.
(b) Bank Actions. The Confirmation Order shall:
(i) provide for the release of those Released Bank Lender Defendants (to the extent identified and disclosed by the Debtors prior to the conclusion of the Confirmation Hearing) by the Debtors, the Reorganized Debtors and their respective estates and their respective successors and assigns from any liability with respect to the Bank Actions (but only if such Released Bank Lender Defendants deliver to the Debtors prior to the Effective Date releases, in form and substance reasonably satisfactory to the Debtors, from any and all Claims relating to or arising in connection with the Prepetition Credit Agreements and any transactions in connection therewith (except for the right of any Released Bank Lender Defendants to receive all payments and distributions pursuant to the Plan, including, without limitation, in respect of Bank Claims, Bank Lender Fee Claims and Bank Lender Post-Effective Date Fee Claims in accordance with this Plan)), and that the Contingent Value Vehicle shall have no right thereafter to pursue the Bank Actions against the Released Bank Lender Defendants;
(ii) provide that, except for the Continuing Bank Actions, with respect to which all of the rights of the Debtors, the Reorganized Debtors, their respective estates and the Statutory Committees shall be preserved and which shall be transferred to the Contingent Value Vehicle in accordance with Section 7.03 hereof, on the Effective Date all Dismissed Bank Actions shall be dismissed (or shall be deemed to be dismissed as of the Effective Date, to the extent a Continuing Bank Action subsequently qualifies as a Dismissed Bank Action under this Plan) with prejudice and the Debtors, the Reorganized Debtors, the Statutory Committees, the Contingent Value Vehicle and their respective successors and assigns shall be deemed to release the Bank Lenders with respect to the Dismissed Bank Actions, effective as of the Effective Date;
(iii) provide that, to the extent that a Released Bank Lender Defendant indemnifies or is required to indemnify any Person that is ultimately either (a) required to disgorge a distribution received under this Plan to the Debtors, (b) found liable in connection with a Continuing Bank Action or (c) is party to a settlement of the Continuing Bank Action pursuant to which such Person agrees to pay damages, or to limit any recovery on its Claim, including by agreeing not to receive or demand the full satisfaction of any Claim against a Debtor, the Debtors shall have no liability to such Released Bank Lender Defendant with respect to any amounts provided in connection therewith; and
(iv) provide that, in consideration of (and as a condition to) the treatment provided for under this Plan, each Bank Lender shall be deemed to release, without any further action on its part, the Debtors, Reorganized Debtors and the Transferred Joint Venture Entities from any liability and obligation in connection with the Prepetition Credit Agreements (including any liability or obligation the Debtors, Reorganized Debtors or Transferred Joint Venture Entities may owe arising from or relating to any indemnification obligation owing to a Bank Lender arising from such Bank Lender’s indemnification of another Bank Lender under any Prepetition Credit Agreement), except for the right to assert Defensive Claims or receive distributions in respect of Bank Claims, Bank Lender Fee Claims and Bank Lender Post-Effective Date Fee Claims under and in accordance with this Plan, as applicable.
(c) Notwithstanding anything otherwise to the contrary, the Allowance of a Bank Claim for purposes of this Plan shall not constitute, be deemed to constitute, or be cited as, a defense to (or other grounds for avoiding liability under) the Continuing Bank Actions. The Bank Lender Avoidance Complaint may be amended by: (i) adding successors and assigns to the rights of holders of Bank Claims, to the extent it is alleged that such Claims are subject to the defenses and grounds for disallowance applicable to the Bank Claims and to the initial holders thereof, (ii) repleading the Continuing Bank Actions with further particularity or (iii) as otherwise permitted pursuant to applicable law, in each case subject to the limitations and conditions of this Plan and the provisions of the DIP Order, to the extent applicable; provided further, however that nothing in this Section 6.04(c) shall limit, prejudice or impair any Person’s right to assert any Defensive Claims or Bank Third Party Claims.
6.05. Sale Transaction Closing. Not later than five Business Days prior to the Effective Date (the “Sale Notice Date”), the Debtors shall file a notice with the Bankruptcy Court: (a) setting forth the anticipated date of the Sale Transaction Closing, (b) stating whether the Comcast Adelphia Acquisition or the TW Expanded Transaction is anticipated to be consummated and whether there are any Non-Transferred MCE Systems and (c) containing the forms of principal agreements to be entered into in connection with the Sale Transaction Closing, to the extent such agreements have not previously been filed in connection with the Plan Supplement or otherwise (the “Sale Notice”). The Reorganized Debtors shall be authorized to enter into all documents necessary or appropriate in connection with the Sale Transactions.
6.06. Reinstatement of Certain Equity Interests. The Equity Interests in the Transferred Joint Venture Entities shall be Reinstated and transferred to the applicable Buyer in accordance with the Purchase Agreements. Subject to the Restructuring Transactions and the Sale Transactions, Equity Interests held by any Debtor in any other Debtor shall also be Reinstated. For the avoidance of doubt, ACC Common Stock and ACC Preferred Stock shall not be Reinstated, but shall instead be cancelled pursuant to Section 6.07 in exchange for the treatment provided with respect thereto under Article IV of this Plan, as applicable.
6.07. Cancellation of Existing Securities and Agreements. On the Effective Date, except as otherwise contemplated by the Sale Transactions or otherwise specifically provided for herein, (i) the Existing Securities, Indentures, and any document, agreement or instrument evidencing or creating any Claim or Equity Interest in or against the Debtors, except notes, agreements, documents or other instruments evidencing indebtedness or obligation of the Debtors that are Reinstated under this Plan, will be automatically cancelled and of no further force and effect, without any further act or action, and (ii) the obligations of, Claims against, and/or Equity Interests in the Debtors under, relating or pertaining to any agreements, the Indentures, any other indentures, certificates of designation, by-laws, or certificate or articles of incorporation or similar documents governing the Existing Securities and any other note, bond, indenture, or other instrument or document evidencing or creating any indebtedness or obligation of the Debtors, except notes or other instruments as evidencing indebtedness or obligation of the Debtors that are Reinstated under this Plan, as the case may be, will be released and discharged; provided, however, that any Indenture, Prepetition Credit Agreement or other agreement that governs the rights of the Claimholder and is administered by an Agent will continue in effect solely for purposes of (w) allowing such Agent to make the distributions to be made on account of such Claims under this Plan as provided in Article VIII of this Plan and to perform such other necessary functions with respect thereto and to have the benefit of all protections and other provisions of such indenture or agreement in doing so, (x) permitting such Agent to maintain or assert any rights or Liens (including Charging Liens) it may have on distributions received pursuant to the terms of this Plan for fees, costs and expenses under such Indenture or other agreement, (y) permitting Persons who are not Debtors and who are party to such agreement, document or other instrument to maintain and assert any rights and obligations thereunder against Persons who are not Debtors and (z) permitting such Agent or any Bank Lender to maintain and enforce any right to indemnification, contribution or other Claim, defense or remedy that it may have under such Indenture or other agreement against any non-Debtor party thereto; provided further that the preceding proviso will not affect the discharge of Claims against or Equity Interests in the Debtors under the Bankruptcy Code, the Confirmation Order, or this Plan, or result in any Claim against, or expense or liability to or of, the Reorganized Debtors, the Transferred Joint Venture Entities, the Distribution Companies or the Contingent Value Vehicle.
6.08. Bank Lender Indemnification Claims and Post-Effective Date Fee Claims.
(a) Limitation on Further Liability on Bank Claims. The Reorganized Debtors and the Transferred Joint Venture Entities will not have any obligations to any Agent (or to any agent appointed to replace such Agent) for any fees, costs, or expenses except as expressly provided in Section 2.02, this Section 6.08 or Section 6.09 hereof; provided, however, that, subject to Section 8.05(c) hereof, nothing herein will preclude
any Agent (or any agent appointed by the Distribution Companies to replace such Agent) from being paid or reimbursed from the distributions being made by such Agent (or any agent appointed by the Distribution Companies to replace such Agent) for prepetition or postpetition fees, costs, or expenses pursuant to the Indenture, Prepetition Credit Agreement or other agreement giving rise to such Claim in accordance with the provisions set forth therein, all without application to or approval by the Bankruptcy Court. Except as expressly provided for in Sections 4.04, 4.17, 4.21, 4.25, 4.46, 4.49 and 6.08 of this Plan, all Claims asserted by a Bank Lender (in its capacity as such) shall be Disallowed.
(b) Bank Lender Fee Claims. Subject to Section 6.16 of this Plan, the Debtors (other than following the Effective Date, the Transferred Joint Venture Entities), Reorganized Debtors or the applicable Distribution Company (as applicable) shall pay Bank Lender Fee Claims in Cash in accordance with the procedures, and subject to the conditions, set forth in this Section 6.08(b). As a condition to receiving payment of a Bank Lender Fee Claim entitled to reimbursement by the Debtors or the Reorganized Debtors, each Bank Lender seeking such payment shall deliver to the Debtors or the Reorganized Debtors (as applicable), counsel for the Statutory Committees and the United States Trustee (a) written copies of invoices in respect of such claims, with narrative descriptions of the services rendered (including appropriate redactions to preserve privileged matters) and itemization of expenses incurred in such detail and with such supporting documentation as is reasonably requested by the Debtors or the Reorganized Debtors, for the period to which such Bank Lender Fee Claim relates (which invoices, with respect to holders or professionals who have received reimbursement prior to the Effective Date in connection with the Chapter 11 Cases, shall be in the same form and shall include no less information than that provided by such Person in connection with the Chapter 11 Cases) (collectively, “Bank Lender Fee Claims Invoices”), and (b) no later than March 17, 2006, (i) copies of Bank Lender Fee Claims Invoices for all calendar months through January 31, 2006, and (ii) a good faith estimate of all Bank Lender Fee Claims reasonably anticipated to be accrued from such deadline through an assumed Effective Date of March 31, 2006. Within twenty days after the end of each calendar month after March 31, 2006 and prior to the Effective Date, each Bank Lender shall submit additional Bank Lender Fee Claim Invoices and provide an updated estimate. In the event the Debtors or Reorganized Debtors (subject to the consent of the Creditors’ Committee) are unable to resolve a dispute as to whether a Bank Lender Fee Claim Invoice represents a Bank Lender Fee Claim, the Debtors, Reorganized Debtors and/or the holder of such Claim may submit any such dispute to the Bankruptcy Court for resolution. Neither the Debtors nor the Reorganized Debtors shall be required to make any payments with respect to a Disputed Bank Lender Fee Claim Invoice pending resolution of such dispute by the parties or the Bankruptcy Court; provided, however, that if a Bank Lender Fee Claim Invoice is Disputed in part, the Debtors (other than following the Effective Date, the Transferred Joint Venture Entities) or Reorganized Debtors (as applicable) shall pay that portion of a Bank Lender Fee Claim Invoice that is not Disputed as soon as reasonably practicable. An amount equal to the Disputed portion of a Bank Lender Fee Claim Invoice, or such lesser amount as the Bankruptcy Court shall determine following notice and a hearing, shall be held in an interest-bearing reserve
account pending resolution of such dispute by the parties or the Bankruptcy Court. The release of the net after-tax interest from such reserve shall follow the principal.
(c) Bank Lender Post-Effective Date Fee Claims.
(i) Sole Recourse to Litigation Indemnification Fund. From and after the Effective Date, Bank Lender Post-Effective Date Fee Claims shall be paid or reserved in full solely from the Litigation Indemnification Fund with respect to such Pre-Petition Credit Agreement and in accordance with this Section 6.08(c) and no Person shall have any Claim against, or right to payment from, the Debtors, Reorganized Debtors, the Transferred Joint Venture Entities, the Distribution Companies, or the Contingent Value Vehicle in connection therewith.
(ii) Limitation on Bank Lender Post-Effective Date Fee Claims. Payment of Bank Lender Post-Effective Date Fee Claims shall be subject to the limitations of Section 6.16 of this Plan and the determination regarding timing of payments set forth in clause (vi) below. In addition, none of the following shall be payable under this Section 6.08(c): (x) Claims for indemnification of any liability arising in connection with a Continuing Bank Action or the Securities Class Action, and (y) Bank Lender Post-Effective Date Fee Claims incurred in connection with the defense of a Cause of Action, including the Continuing Bank Action or Securities Class Action, by or on behalf of a defendant that is found by a court of competent jurisdiction to have liability that is not indemnifiable under the applicable Prepetition Credit Agreement or applicable law in connection with such Cause of Action or that is required to make a disgorgement under Section 6.08(d) of this Plan.
(iii) Submission of Invoices/Disputed Claims. As a condition to receiving payment of a Bank Lender Post-Effective Date Fee Claim from the Litigation Indemnification Fund, each holder of a Bank Claim shall deliver to the Contingent Value Vehicle Trustee and counsel for the Statutory Committees written copies of invoices in respect of such claims, with narrative descriptions of the services rendered (including appropriate redactions to preserve privileged matters) and itemization of expenses incurred in such detail and with such supporting documentation as is reasonably requested by the Contingent Value Vehicle Trustee, for the period to which such Bank Lender Post-Effective Date Fee Claim relates (which invoices, with respect to holders of Bank Claims and their professionals, shall be in substantially the same form and shall include the same level of information as provided by such holders or professionals of such holders of Bank Claims who have received reimbursement prior to the Effective Date in connection with the Chapter 11 Cases). In the event the Person seeking reimbursement and the Contingent Value Vehicle Trustee are unable to resolve a dispute as to whether a Bank Lender Post-Effective Date Fee Claim Invoice represents a Bank Lender Post-Effective Date Fee Claim, the Contingent Value Vehicle Trustee and/or the holder of such Claim may submit any such dispute to the Bankruptcy Court for resolution. The Contingent Value Vehicle Trustee shall
not be required to make any payments with respect to a Disputed Bank Lender Post-Effective Date Fee Claim Invoice pending resolution of such dispute by the parties or the Bankruptcy Court; provided, however, that if a Bank Lender Post-Effective Date Fee Claim Invoice is Disputed in part, the Contingent Value Vehicle Trustee shall pay that portion of a Bank Lender Post-Effective Date Fee Claim Invoice that is not Disputed as soon as reasonably practicable. The Disputed portion of a Bank Lender Post-Effective Date Fee Claim Invoice shall be paid as soon as reasonably practical after resolution of such dispute by the parties or the Bankruptcy Court, with any net after-tax interest earned on such disputed portion following the distribution of the disputed amount. On a quarterly basis following the Effective Date, the Contingent Value Vehicle Trustee shall file a report with the Bankruptcy Court showing the balance of the Litigation Indemnification Fund minus unpaid invoices (including the disputed portions thereof) payable from such fund.
(iv) The Litigation Indemnification Fund; Adjustment.
(A) On the Effective Date, the CVV Trustee shall establish six separate funds (one corresponding to each Pre-Petition Credit Agreement) to be funded with cash and held in an interest bearing account (each an “LIF” and collectively the “Litigation Indemnification Fund”).
(B) Initially each LIF shall be funded as follows: (a) with respect to those Pre-Petition Credit Agreements corresponding to Classes of Bank Claims that have not voted to accept the Plan (the “Rejecting Bank Classes”), an amount equal to the corresponding Bank Class Pro Rata Share of $75,000,000, and (b) with respect to those Pre-Petition Credit Agreements corresponding to all other Classes of Bank Claims (the “Accepting Bank Classes”), the corresponding Bank Class Pro Rata Share of $125,000,000.
(C) Each LIF shall be subject to increase as follows:
(1) Upon the release of any reserve established pursuant to clause (c)(ii) of Section 4.04, 4.17, 4.21, 4.25, 4.46, or 4.49 hereof with respect to an Accepting Bank Class, such released reserve to the extent provided therein shall be added to the corresponding LIF of the Accepting Bank Class;
(2) upon the receipt by the Contingent Value Vehicle of net proceeds of any Designated Litigation, the Contingent Value Vehicle Trustee shall first deduct any required distribution to the Contingent Value Vehicle Series RF Interests; the Contingent Value Vehicle Trustee shall then add to each LIF its corresponding Bank Class Pro Rata Share of the remaining net proceeds up to an amount sufficient to cause the balance in such LIF (net of any
accrued Post-Effective Date Lender Fee Claims against such LIF) to equal the amount set forth in (B) above; and
(3) prior to any distribution by the Contingent Value Vehicle to the holders of Contingent Value Vehicle Interests (other than distributions to the holders of Contingent Value Vehicle Interests Series RF), the Contingent Value Vehicle Trustee shall deposit in each LIF an amount sufficient to cause the balance in such LIF (net of any accrued Post-Effective Date Lender Fee Claims against such LIF) to equal the amount set forth in (B) above or such other amount as may be determined by the Bankruptcy Court after notice and a hearing.
(D) Funds shall be released from each LIF: (a) to pay Post-Effective Date Bank Lender Fees pursuant to the terms of this Plan, (b) upon the agreement of the Contingent Value Vehicle Trustee and the holders of a majority of the Allowed Claims in the corresponding Class of Bank Claims, or (c) as determined by the Bankruptcy Court after notice and a hearing.
(E) Each Administrative Agent under a Prepetition Credit Agreement shall be granted, for the benefit of all Bank Lenders under such Prepetition Credit Agreement that remain subject to Continuing Bank Actions, a first priority Lien (subject to the other provisions of this Plan) on the LIF corresponding to such Prepetition Credit Agreement. Such Lien shall secure such Bank Lenders’ rights under this Plan to payments from the LIF.
(v) Estimation. The Debtors and the Creditors’ Committee shall request that the Bankruptcy Court determine that the Litigation Indemnification Fund is a reasonable estimate of and/or reserve for the Bank Lender Post-Effective Date Fee Claims. Such request shall be made by the Debtors, with the assistance of the Creditors’ Committee, filing a supplement to the Plan or other appropriate pleading that establishes the basis for such request and determined by the Bankruptcy Court after notice and a hearing.
(vi) Timing of Payments. Bank Lender Post-Effective Date Fee Claims shall be required to be paid as and when the Bankruptcy Court determines, in connection with the Confirmation Hearing, that such Claims are required to be paid under the applicable Prepetition Credit Agreement and not inconsistent with applicable law; provided that the Debtors reserve the right to pay Bank Lender Post-Effective Date Fee Claims on a current basis if, as, and to the extent necessary to satisfy the requirements of section 1124 and/or 1129(b) of the Bankruptcy Code if confirmation of the Plan with respect to Allowed Bank Claims is sought by the Debtors on either of those bases (subject to the rights of the Bank Lenders and the Creditors’ Committee to be heard on such issue).
(d) Fee Related Determinations. Nothing in this Plan, including (without limitation) this Section 6.08, shall be deemed to waive or prejudice the rights, if any, of the Debtors, the Reorganized Debtors, the Distribution Companies or the Contingent Value Vehicle to seek (i) an order of the Bankruptcy Court that the holder of a Bank Claim is not entitled to payment of Bank Lender Post-Effective Date Fee Claims, (ii) disgorgement of any previously paid Bank Lender Post-Effective Date Fee Claims, or (iii) as additional damages in the Continuing Bank Actions, disgorgement to the Debtors, Reorganized Debtors, the Distribution Companies or the Contingent Value Vehicle, as applicable, of all applicable fees, costs and expenses received from the Debtors, the Reorganized Debtors, the Distribution Companies or the Contingent Value Vehicle at any time from and after the Commencement Date (including, in the case of (ii) and (iii) interest accruing on such amount through the date of payment to the Contingent Value Vehicle at the Prime Rate).
6.09. Fees and Expenses of Indenture Trustees.
(a) In full satisfaction of Allowed Trustee Fee Claims, including to the extent such Allowed Trustee Fee Claims are secured by any Charging Liens under the Indentures, on the Initial Distribution Date the Reorganized Debtors will distribute to the holders of Allowed Trustee Fee Claims Cash equal to the amount of (i) the Allowed Trustee Fee Claims submitted to the Debtors or Reorganized Debtors, as applicable, and the Office of the United States Trustee, for fees and expenses through the Confirmation Date, and (ii) any Allowed Trustee Fee Claims incurred between the Confirmation Date and the Effective Date, provided, however, that no distribution shall be payable hereunder with respect to Claims to which the Debtors or Reorganized Debtors, as applicable, and/or the Office of the United States Trustee shall have objected within 60 days of receipt of the request for payment.
(b) As a condition to receiving payment thereof, each holder of a Trustee Fee Claim shall deliver to the Debtors (or Reorganized Debtors), the Creditors’ Committee and the United States Trustee written copies of invoices in respect of such claims, with narrative descriptions of the services rendered (including appropriate redactions to preserve privileged matters) and itemization of expenses incurred in such detail and with such supporting documentation as is reasonably requested by the Debtors or the Reorganized Debtors (or the Plan Administrator, as applicable). If either the Debtors or Reorganized Debtors, as applicable, or the Office of the United States Trustee timely objects to the request for payment of the Trustee Fee Claims, the holder of such Claim may be required to submit an application requesting payment of the disputed portion of the Trustee Fee Claims with the Bankruptcy Court in accordance with the reasonableness standard (and not subject to the requirements of Bankruptcy Code sections 503(b)(3) and (4), which shall not apply). The undisputed amount of any Trustee Fee Claims with respect to which an objection is pending shall be Allowed and paid by the Reorganized Debtors (or the applicable Distribution Company), as applicable, on the Effective Date or as soon thereafter as any such Trustee Fee Claims are Allowed. None of the Debtors, the Reorganized Debtors or the Distribution Companies shall be required to make any payments with respect to a Disputed Trustee Fee Claim until resolved or determined by the Bankruptcy Court. In the event the Debtors or Reorganized Debtors are unable to
resolve a dispute as to a Trustee Fee Claim, the Indenture Trustee may, in its sole discretion, elect to (i) submit any such dispute to the Bankruptcy Court for resolution or (ii) assert its Charging Lien (to the extent such lien exists under the Indenture) to obtain payment of a Disputed Trustee Fee Claim in lieu of Bankruptcy Court resolution described in subsection (i).
(c) Claims of Indenture Trustees for indemnification under the Indentures or otherwise and for fees incurred prior to the Commencement Date shall be treated as Other Unsecured Claims in the Debtor Group that includes Claims relating to the Notes for which such Indenture Trustee is trustee.
(d) Notwithstanding the foregoing and anything contained in the Plan, nothing herein shall be deemed to impair, extinguish or negatively impact the Charging Lien.
6.10. Authorization, Issuance and Distribution of New Securities, Plan Consideration and Other Property.
(a) The issuance and/or distribution of any securities, Plan Consideration and/or other property to be issued or distributed by a Debtor or Reorganized Debtor in connection with the Sale Transactions and/or this Plan is hereby authorized without further act or action under applicable law, regulation, order, or rule.
(b) The value of TWC Class A Common Stock held in reserve under Article IX of the Plan and in the Transaction Escrows is likely to fluctuate. None of Time Warner, TWC, TWNY, the Debtors, the Reorganized Debtors, the Distribution Companies, the Contingent Value Vehicle or the Plan Administrator represents or warrants, and shall not be deemed to represent and warrant, that the value of the TWC Class A Common Stock will not decline as of any date after the Confirmation Date. To the fullest extent permitted by applicable law, none of Time Warner, TWC, TW NY, the Debtors, the Reorganized Debtors, the Distribution Companies, the Contingent Value Vehicle or the Plan Administrator or any of their respective Affiliates (including, except for Excluded Individuals, their respective directors, officers, employees, shareholders, members, partners, agents or representatives (including attorneys, accountants and investment bankers)) shall have any liability or risk of loss which the holder of a Disputed Claim or Disputed Interest that becomes an Allowed Claim or Allowed Interest, as applicable, after the Effective Date may suffer by reason of any decline in value of reserved or escrowed TWC Class A Common Stock pending release of such TWC Class A Common Stock from an escrow or reserve or the determination of the amount of such Disputed Claim or Disputed Interest. The risk or benefit of any appreciation or depreciation in the value of any reserved or escrowed TWC Class A Common Stock shall be borne by the party to whom such TWC Class A Common Stock is ultimately distributed.
6.11. Hart-Scott-Rodino Compliance. Until the notification and waiting periods applicable to such transaction under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”) shall have expired or been terminated:
(a) no Plan Consideration to be distributed under the Plan to any entity required to file a Premerger Notification and Report Form under the HSR Act shall be distributed; and
(b) no Sale Transaction in connection with which a Premerger Notification and Report Form is required to be filed under the HSR Act shall be consummated.
6.12. Government Settlement. On or as soon as reasonably practicable after the Effective Date, Adelphia Cablevision LLC shall, on behalf of ACC, to the extent not already implemented, consummate the transactions contemplated under the Government Settlement Agreements, including the deposit of the Settlement Consideration with the Restitution Fund, in accordance with the terms of the Government Settlement Agreements.
6.13. No Consent to Change of Control Required. Except as otherwise expressly provided by order of the Bankruptcy Court, none of (a) the facts or circumstances giving rise to the commencement of, or occurring in connection with, the Chapter 11 Cases, (b) the issuance of the TWC Class A Common Stock pursuant to the Plan, (c) implementation of the Restructuring Transactions or any Sale Transaction, or (d) consummation of any other transaction pursuant to the Plan shall constitute a “change in ownership” or “change of control” (or a change in working control) of, or in connection with, any Debtor requiring the consent of any Person other than the Debtors or the Bankruptcy Court including under any Franchise agreement, executory contract, pole attachment agreement or other agreement (whether entered into before or after the Commencement Date) between any Debtor and any third party, or any law including the common law, statute, ordinance, rule or any other regulation otherwise applicable to any Debtor.
6.14. Designation of Plan Administrator, Contingent Value Vehicle Trustee and Members of the Contingent Value Vehicle Board.
(a) The Creditors Committee shall consult with the Equity Committee and the Debtors regarding the selection of Persons who will initially serve as the Plan Administrator, the Contingent Value Vehicle Trustee and the members of the Contingent Value Vehicle Board.
(b) Not less than fifteen days prior to the Confirmation Hearing, the Creditors Committee shall designate the Persons to initially serve as the Plan Administrator, Contingent Value Vehicle Trustee and members of the Contingent Value Vehicle Board, which designation shall be subject to the consent of the Debtors. The Creditors Committee shall provide the Debtors with such diligence information regarding the designees as the Debtors may reasonably request. Subject to the receipt of such diligence information, the Debtors’ consent to the designees shall not be unreasonably withheld or delayed.
(c) The Debtors shall file a notice with the Bankruptcy Court not less than ten days prior to the Confirmation Hearing designating the Person selected pursuant to the preceding paragraph and seeking approval of such designation. The Creditors Committee shall provide such information as shall be reasonably requested in connection with such notice, including the qualifications and experience of the designated Persons.
(d) Upon the approval of the Bankruptcy Court and the occurrence of the Effective Date, the designated Persons shall assume their respective positions.
6.15. Effect of Non-Transferred MCE Systems. If there are any Non-Transferred MCE Systems, then the entity listed on Schedule Q, R or S that owns such Non-Transferred MCE System shall not be a Rigas Co-Borrowing Debtor and the distributions to the corresponding Debtor Group shall be adjusted accordingly. If all of the entities of a Debtor Group are so excluded, then such Debtor Group, and the Claims against and Equity Interests in such Debtor Group shall be excluded from this Plan.
6.16. Certain Limitations on Distributions to Holders of Bank Claims.
(a) Creditors’ Committee Motion. Timing of all payments and distributions under the Plan to holders of Bank Claims in Rejecting Bank Classes in their capacity as such (including those distributions described in Articles IV and VI) is subject to resolution of the Creditors’ Committee’s proposed motion pursuant to Sections 502(a), (b) and/or (d) of the Bankruptcy Code directing the holding back of any distribution until the resolution of the Continuing Bank Actions. If and to the extent such motion is granted, pursuant to an order of the Bankruptcy Court entered no later than five business days prior to the entry of the Confirmation Order (the “Holdback Order”), all distributions to Rejecting Bank Classes that are the subject of the Holdback Order shall be paid into a segregated, interest bearing account pending the resolution of the Continuing Bank Actions or order of the Bankruptcy Court. To the extent that it is ultimately determined that the holders of Bank Claims in Rejecting Bank Classes are entitled to such distributions, the account (together with the attributable after-tax earnings with respect thereto) shall be released to such holders. If any Class of Bank Claims is an Accepting Bank Class and the Creditors’ Committee nonetheless obtains the Holdback Order with respect to such Class prior to the Confirmation Date, then the holders of Claims in such Accepting Bank Class shall have a period of 5 Business Days from the date of public disclosure of such determination to withdraw their acceptance of the Plan by filing a notice with the Bankruptcy Court withdrawing such acceptance.
(b) Adequate Assurance of Ability to Satisfy Disgorgement Obligations. As a condition to receiving payment of a distribution with respect to a Bank Claim or the payment of a Bank Lender Post-Effective Date Fee Claim from the Litigation Indemnification Fund, each holder of a Bank Claim shall deliver to the Plan Administrator evidence reasonably satisfactory to the Plan Administrator of the holder’s ability to disgorge any distributions received with respect to the Bank Claim, the Bank Lender Fee Claim or the Bank Lender Post-Effective Date Fee Claim if it is ultimately determined that such holder is required to disgorge such distributions. Any dispute as to whether the holder of a Bank Claim has delivered to the Plan Administrator evidence reasonably satisfactory to the Plan Administrator of the holder’s ability to disgorge any distributions received with respect to a Bank Claim, a Bank Lender Fee Claim or a Bank Lender Post-Effective Date Fee Claim (an “Assurance Dispute”) shall be resolved by the Bankruptcy Court. Without limiting any other form of reasonably satisfactory evidence of a holder’s ability to disgorge, the following shall be deemed to be reasonably satisfactory evidence: (i) that such holder is a bank chartered under the laws of the
United States of America, any state thereof, or any other jurisdiction (foreign or domestic), and is not subject to any receivership or similar proceeding; or (ii) during the pendency of an Assurance Dispute, such holder shall have agreed, in form and substance reasonably satisfactory to the Plan Administrator, to keep the distributions received in a segregated account, over which the Plan Administrator shall have a perfected, first priority security interest, and which account shall be invested solely in Permitted Investments.
ARTICLE VII.
CONTINGENT VALUE VEHICLE
7.01. Establishment of the Contingent Value Vehicle. Without any further action of the directors or shareholders of the Debtors or Reorganized Debtors, on the Effective Date, the Contingent Value Vehicle shall be established as a liquidating trust and become effective pursuant to the Contingent Value Vehicle Agreement for the benefit of the holders of Contingent Value Vehicle Interests. The Contingent Value Vehicle will be deemed created and effective on the Effective Date. Subject to the terms of this Plan, the Contingent Value Vehicle Agreement shall contain provisions customary to trust agreements utilized in comparable circumstances. The terms of the Contingent Value Vehicle may be amended by the Contingent Value Vehicle Trustee to the extent necessary to ensure that the Contingent Value Vehicle will not become subject to the Exchange Act and as provided in the Contingent Value Vehicle Agreement.
7.02. Appointment of Contingent Value Vehicle Trustee. The Contingent Value Vehicle Trustee shall initially be designated pursuant to Section 6.14 of this Plan. After the Effective Date, the Contingent Value Vehicle Trustee shall, following its resignation or removal, be appointed by the Contingent Value Vehicle Board after notice to the Bankruptcy Court. The Contingent Value Vehicle Trustee shall be independent of the Debtors. In addition to its fiduciary duties to the Contingent Value Vehicle Holders under applicable law, the Contingent Value Vehicle Trustee shall have and perform all of the duties, responsibilities, rights and obligations set forth in the Contingent Value Vehicle Agreement.
7.03. Transfer of Designated Litigation to the Contingent Value Vehicle.
(a) Transfer of Designated Litigation; Retained Right of Setoff.
(i) On the Effective Date, subject to paragraphs (ii) and (iii) below, and notwithstanding any limitation or prohibition on transfer contained in any contract, agreement or applicable non-bankruptcy law, title to the Designated Litigation (subject to the Defensive Claims and the Estate Defenses that have been or may be asserted or, but for such transfer, could have been asserted by any party to the Designated Litigation against or by, as applicable, any Debtor transferor) and the Litigation Funds shall automatically be transferred to the Contingent Value Vehicle without any further action on the part of any Person.
(ii) The Debtors or Reorganized Debtors shall retain the right (but shall not have the obligation) to assert a claim or Cause of Action underlying the
Designated Litigation for purposes of setoff to payments otherwise due pursuant to this Plan. The Debtors shall not exercise such retained right with respect to a Bank Lender prior to a Final Order approving a judgment in, or settlement of, the Continuing Bank Actions, and then only to the extent set forth in such Final Order. To the extent any setoff of payments otherwise due pursuant to this Plan pursuant to this Section are approved by a Final Order, the amount of such setoff shall be paid over to the Contingent Value Vehicle.
(iii) The Contingent Value Vehicle shall not acquire any Claim or Cause of Action pursuant to this Section other than the Designated Litigation. With respect to the Designated Litigation, the Contingent Value Vehicle shall not have or acquire any Claim or Cause of Action against the Debtors, the Reorganized Debtors, the Transferred Joint Venture Entities or any of their current respective directors, officers and employees or any former respective directors, officers and employees who were appointed after the Commencement Date (except for Excluded Individuals) in connection herewith (including any Claim for indemnification based on the Designated Litigation or the causes of action asserted in connection therewith). None of the Contingent Value Vehicle nor any defendant (including any third party defendant) in the Designated Litigation shall be permitted to make any of the Debtors, the Reorganized Debtors or the Transferred Joint Venture Entities a party to the Designated Litigation, provided, however, one or more of the Reorganized Debtors may be added to a Designated Litigation in the capacity of a “nominal party” for trial or discovery purposes. The Contingent Value Vehicle shall not prosecute any Claim or Cause of Action against the Debtors, the Managed Entities, the Reorganized Debtors, the Transferred Joint Venture Entities or any of their current respective directors, officers and employees or any former respective directors, officers and employees (except for Excluded Individuals) who were appointed after the Commencement Date.
(b) Defenses to Designated Litigation; Defensive Claims.
(i) Claims of any Person (other than DIP Lender Claims) that may be asserted against the Debtors, Reorganized Debtors or the Transferred Joint Venture Entities in response to Designated Litigation, other than Defensive Claims asserted as defenses or asserted for purposes of a Valid Setoff pursuant to Section 7.09, shall be and hereby are discharged pursuant to section 1141 of the Bankruptcy Code and Article XII of this Plan. Nothing contained in this Section 7.03(b) shall discharge, impair, or extinguish a Claim of any Person against Persons other than the Debtors, Reorganized Debtors or the Transferred Joint Venture Entities.
(ii) Notwithstanding anything contained in this Plan to the contrary, a defendant in the Designated Litigation may assert a Defensive Claim as the basis for a Valid Setoff pursuant to Section 7.09.
(c) Privileges and the Designated Litigation. In connection with the transfer of the Designated Litigation to the Contingent Value Vehicle, any attorney-client privilege, work-product privilege, or other privilege or immunity held by the Debtors before the Effective Date attaching to any documents or communications (whether written or oral) relating to the Designated Litigation (any such privilege or immunity, a “Privilege”) shall be transferred to the Contingent Value Vehicle and shall vest in the Contingent Value Vehicle Trustee and its representatives, and the Debtors, the Reorganized Debtors and the Contingent Value Vehicle Trustee are authorized to take all necessary actions to effectuate the transfer of such privileges.
(d) Continuing Obligations of the Reorganized Debtors for the Designated Litigation. Upon the Effective Date and the transfer of the Designated Litigation provided for in Section 7.03(a), the Debtors, the Distribution Companies, the Reorganized Debtors and the Transferred Joint Venture Entities shall have no other further obligations with respect to the prosecution of the Designated Litigation, except that the applicable Distribution Company and the Reorganized Debtors shall make available to the Contingent Value Vehicle Trustee during normal business hours, upon reasonable notice, reasonable access to personnel and books and records of the Distribution Companies and the Reorganized Debtors (or books and records transferred to or held by the Buyers, to the extent that the Reorganized Debtors have access rights to such books and records under a Purchase Agreement) to enable the Contingent Value Vehicle to prosecute the Designated Litigation; provided, however, that the Distribution Companies shall be entitled to compensation or reimbursement from the Contingent Value Vehicle (including reimbursement for professional fees) with respect to providing such assistance (including allocated overhead and salaries). Notwithstanding anything to the contrary, the Reorganized Debtors shall remain subject to discovery to the same extent as if they remained as the plaintiffs in the Designated Litigation as a “nominal party” for trial or discovery purposes.
(e) Limitation on Impleader and Cross-Claims. From and after the transfer of the Designated Litigation to the Contingent Value Vehicle, any defendant in the Designated Litigation shall be permitted to implead a third party defendant (an “Impleaded Third Party Defendant”) or assert a cross-claim against a defendant (a “Cross-Claim Defendant”) in connection with the Designated Litigation if such impleader or cross-claim is permitted under applicable law; provided, however, (1) that in the event a defendant obtains a judgment against an Impleaded Third Party Defendant or a Cross-Claim Defendant, any such judgment shall be reduced by an amount equal to the equitable share of the damages that would have been attributed to the Debtors had the Impleaded Third Party Defendant or Cross-Claim Defendant been otherwise permitted to implead the Debtors for contribution and received a judgment against the Debtors for such amount (to the extent the judgment the Debtors obtain against the defendant in the Designated Litigation does not already reflect an offset for the Debtors’ culpable conduct, if any), and (2) in the case exclusively of a Bank Lender, a judgment or settlement against an Impleaded Third Party Defendant or a Cross-Claim Defendant obtained from a Bank Lender by a defendant in the Designated Litigation shall be further reduced (to the extent it has not been reduced in full by application of subsection (1) of this section) by an amount equal to any claim for indemnification to which the Bank Lender would have
been otherwise entitled under the applicable Prepetition Credit Agreement (to the extent not inconsistent with applicable law) had the Bank Lender been permitted to implead the Debtors and had such Bank Lender received a judgment against the Debtors for such amount. To the extent that a defendant’s judgment or settlement against an Impleaded Third Party Defendant or Cross-Claim Defendant has been reduced as a result of the operation of subsection (1) or (2) above, any judgment obtained by the Contingent Value Vehicle against the defendant in the Designated Litigation shall be reduced dollar for dollar by the amount of any reduction in the judgment or settlement obtained by the defendant against the Impleaded Third Party Defendant or Cross-Claim Defendant. Any defendant, Third-Party Defendant or Cross-Claim Defendant in the Designated Litigation who contends that it is entitled to a reduction in any judgment or settlement obtained against it, shall not be entitled to such reduction unless the court in which such action is pending (on notice to the Contingent Value Vehicle Trustee and after an opportunity to be heard on such issues) first determines that the party seeking such reduction is entitled to (a) contribution from the Debtors by operation of subsection (1) above; and/or (b) indemnification from the Debtors by operation of subsection (2) above. To the extent any defendant, Third-Party Defendant or Cross-Claim Defendant in the Designated Litigation does not receive the benefit of the provisions of this section, such claims shall be deemed to be Defensive Claims. Except as provided for in this section, all claims of any Defendant, Third-Party Defendant or Cross-Claim Defendant against the Debtors arising out of or related to the applicable Designated Litigation are hereby discharged and released (subject to any rights under section 502(j) of the Bankruptcy Code). No defendant (including any Defendant, Impleaded Third Party Defendant or Cross-Claim Defendant) in the Designated Litigation shall be permitted to implead or otherwise make any of the Debtors, the Reorganized Debtors, the Distribution Companies or the Transferred Joint Venture Entities a party to the Designated Litigation.
7.04. Contingent Value Vehicle Interests; Term; Recoveries and Distributions.
(a) Registry of Interests; Transferability. The Contingent Value Vehicle Trustee shall establish and maintain a registry of the holders of Contingent Value Vehicle Interests. Contingent Value Vehicle Interests shall be uncertificated and represented solely by the registry of the Contingent Value Vehicle Trustee and the Confirmation Order shall provide that the Contingent Value Vehicle Interests shall not be transferable except upon the death of the Contingent Value Vehicle Holder or by operation of applicable laws relating to testamentary or intestate succession. It is the intention of the Debtors that the Contingent Value Vehicle Interests not be “securities” for purposes of the Securities Act and the Exchange Act. Subject to the approval of the Bankruptcy Court, the Contingent Value Vehicle Board may exchange new Contingent Value Vehicle Interests that are freely transferable (but otherwise identical to the previously existing Contingent Value Vehicle Interests) for the Contingent Value Vehicle Interests provided that such exchange is in compliance with applicable law, and the transfer of such newly issued Contingent Value Vehicle Interests is permitted (x) pursuant to an effective registration with respect to such transfer under applicable U.S. federal and state securities laws; or (y) pursuant to an exemption from U.S. federal and state securities laws which either the Contingent Value Vehicle or a holder of Contingent Value Vehicle Interests
has confirmed is available for such transfer through receipt of a “no-action” letter from the SEC reasonably acceptable to the Contingent Value Vehicle Board.
(b) Term. The Contingent Value Vehicle shall be dissolved upon the earlier of (i) the distribution of all of its assets to the Contingent Value Vehicle Holders or (ii) five years from the Effective Date, except that the Bankruptcy Court may approve an extension for a finite term within six months after such five year anniversary upon a finding that such extension is necessary based on the particular facts and circumstances.
(c) Allocation of Distributable Proceeds. The Contingent Value Vehicle Trustee shall allocate Distributable Proceeds in the following manner with respect to Contingent Value Vehicle Holders:
(i) CVV Series RF Interests. Fifty percent of the proceeds of the Designated Litigation, less the costs of prosecuting the Designated Litigation (but without deducting that amounts required to indemnify the defendants in such litigation pursuant to Section 6.08(c) of the Plan or to fund the Litigation Funds) shall be distributed to the Restitution Fund in its capacity as the holder of the CVV Series RF Interests until the Restitution Fund shall have received $115,000,000.
(ii) Allocation of Balance of Distributable Proceeds. The balance of the Distributable Proceeds (after giving effect to the Distribution to the CVV Series RF Interests) shall be allocated as provided in the Inter-Creditor Dispute Resolution. In the absence of, or to the extent not provided in, an Inter-Creditor Dispute Resolution, the Contingent Value Vehicle Board shall make a good faith determination as to the Debtor Group with respect to which any remaining Distributable Proceeds relate (the “Attributable Debtor Group”). The remaining Distributable Proceeds shall be allocated to the Series of Contingent Value Vehicle Interests in Section 7.04(d), (e), (f) or (g) corresponding to the Attributable Debtor Group or if the Attributable Debtor Group does not have a corresponding Series of Contingent Value Vehicle Interests, to the first Parent Debtor Group of such Attributable Debtor Group which has a corresponding Series of Contingent Value Vehicle Interests; subject, without duplication, to the same reallocation for unsatisfied Intercompany Claims as provided in Section 9.03(f) hereof. Notwithstanding the foregoing, if Distributable Proceeds would otherwise be allocated to an Attributable Debtor Group which is subject to an Inter-Creditor Dispute Holdback that is fully funded with Plan Consideration and as to which an Inter-Creditor Dispute Resolution has not yet occurred, then with respect to such Distributable Proceeds the Holding Company Debtor Group shall be the Attributable Debtor Group. If the Contingent Value Vehicle Board is unable to determine the Attributable Debtor Group, then the matter shall be submitted to the Bankruptcy Court for determination. Except to the extent determined by an Inter-Creditor Dispute Resolution, the Contingent Value Vehicle Board shall file a notice with the Bankruptcy Court setting forth the proposed allocation of Distributable Proceeds or the need to resolve such allocation pursuant to this Section 7.04(c)(ii) at least thirty days prior to any
proposed distribution. Unless a party in interest shall object to such proposed distribution within twenty days after such notice, the allocation of the Distributable Proceeds as set forth in such filing shall be final and binding on all parties. If a party in interest files an objection to such determination, any distribution so objected to shall be suspended until resolution of such objection by the Bankruptcy Court. The Debtor Group to which Distributable Proceeds are distributed is referred to as the “Recipient Debtor Group”. All notices and objections filed in accordance with this Section 7.04(c)(ii) shall be served upon all holders of Contingent Value Vehicle Interests.
(d) Arahova as the Recipient Debtor Group. Distributable Proceeds for which the Arahova Debtor Group is the Recipient Debtor Group shall be distributed as follows:
(i) Pro Rata to holders of CVV Series AH-1 Interests until such holders shall have received an amount equal to the aggregate amount of all Allowed Claims in Classes ARA-Notes, ARA-Trade and ARA-Uns, plus except as otherwise ordered by the Bankruptcy Court, an amount equal to interest on such Claims (calculated pursuant to Section 8.14(b) without giving effect to the limitations in Sections 8.14(a) and (c)) from the Commencement Date to the Effective Date or such other date as may be set forth in an Inter-Creditor Dispute Resolution, less the aggregate amount of all distributions with respect to such Allowed Claims pursuant to Article IV; thereafter
(ii) Pro Rata to holders of CVV Series AH-2 Interests until such holders shall have received an amount equal to the aggregate amount of all Allowed Claims in Class ARA-ESL, plus except as otherwise ordered by the Bankruptcy Court, an amount equal to interest on such Claims (calculated pursuant to Section 8.14(b) without giving effect to the limitations in Sections 8.14(a) and (c)) from the Commencement Date to the Effective Date or such other date as may be set forth in an Inter-Creditor Dispute Resolution, less the aggregate amount of all distributions with respect to such Allowed Claims pursuant to Article IV hereof; thereafter
(iii) as provided in Section 7.04(g) without regard to the limitation in the first paragraph thereof.
(e) FrontierVision Holdco as the Recipient Debtor Group. Distributable Proceeds for which the FrontierVision Holdco Debtor Group is the Recipient Debtor Group shall be distributed as follows:
(i) Pro Rata to holders of CVV Series FV-1 Interests until such holders shall have received an amount equal to the aggregate amount of all Allowed Claims in Classes FVHC-Notes, FVHC-Trade, FVHC-Uns, plus except as otherwise ordered by the Bankruptcy Court, an amount equal to interest on such Claims (calculated pursuant to Section 8.14(b) without giving effect to the limitations in Sections 8.14(a) and (c)) from the Commencement Date to the Effective Date or such other date as may be set forth in an Inter-Creditor Dispute
Resolution, less the aggregate amount of all distributions with respect to such Allowed Claims pursuant to Article IV; thereafter
(ii) Pro Rata to holders of CVV Series FV-2 Interests until such holders shall have received an amount equal to the aggregate amount of all Allowed Claims in Class FVHC-ESL, plus except as otherwise ordered by the Bankruptcy Court, an amount equal to interest on such Claims (calculated pursuant to Section 8.14(b) without giving effect to the limitations in Sections 8.14(a) and (c)) from the Commencement Date to the Effective Date or such other date as may be set forth in an Inter-Creditor Dispute Resolution, less the aggregate amount of all distributions with respect to such Allowed Claims pursuant to Article IV hereof; thereafter
(iii) as provided in Section 7.04(g) without regard to the limitation in the first paragraph thereof.
(f) Olympus Parent as the Recipient Debtor Group. Distributable Proceeds for which the Olympus Parent Debtor Group is the Recipient Debtor Group shall be distributed as follows:
(i) Pro Rata to holders of CVV Series OP-1 Interests until such holders shall have received an amount equal to the aggregate amount of all Allowed Claims in Classes OLYParent-Notes, OLYParent-Trade, OLYParent-Uns, plus except as otherwise ordered by the Bankruptcy Court, an amount equal to interest on such Claims (calculated pursuant to Section 8.14(b) without giving effect to the limitations in Sections 8.14(a) and (c)) from the Commencement Date to the Effective Date or such other date as may be set forth in an Inter-Creditor Dispute Resolution, less the aggregate amount of all distributions with respect to such Allowed Claims pursuant to Article IV; thereafter
(ii) Pro Rata to holders of CVV Series OP-2 Interests until such holders shall have received an amount equal to the aggregate amount of all Allowed Claims in Class OLYParent-ESL, plus except as otherwise ordered by the Bankruptcy Court, an amount equal to interest on such Claims (calculated pursuant to Section 8.14(b) without giving effect to the limitations in Sections 8.14(a) and (c)) from the Commencement Date to the Effective Date or such other date as may be set forth in an Inter-Creditor Dispute Resolution, less the aggregate amount of all distributions with respect to such Allowed Claims pursuant to Article IV hereof; thereafter
(iii) one-third to holders of CVV Series OP-3 Interests until such holders shall have received an amount equal to the aggregate amount of all Allowed Claims in Class OLYParent-FPLNR, plus except as otherwise ordered by the Bankruptcy Court, an amount equal to interest on such Claims (calculated pursuant to Section 8.14(b) without giving effect to the limitations in Sections 8.14(a) and (c)) from the Commencement Date to the Effective Date or such other date as may be set forth in an Inter-Creditor Dispute Resolution, less the
aggregate amount of all distributions with respect to such Allowed Claims pursuant to Article IV hereof; two-thirds (or following such time as class OLYParent-FPLNR has been paid in full, 100%) as provided in Section 7.04(g) without regard to the limitation in the first paragraph thereof.
(g) Holding Company as the Recipient Debtor Group. Distributable Proceeds for which the Holding Company Debtor Group is the Recipient Debtor Group (the “ACC CVV Share”) shall be distributed as follows:
(i) First Priority.
(A) First Tier.
(1) the product of (I) the ACC CVV Share and (II) the CVV Series A-1a Liquidation Preference divided by the sum of the CVV Series A-1a Liquidation Preference, CVV Series A-1b Liquidation Preference, and CVV Series A-1c Liquidation Preference, shall be distributed Pro Rata to holders of CVV Series A-1a Interests until the CVV Series A-1a Liquidation Preference shall have been paid in full. The CVV Series A-1a Liquidation Preference equals the aggregate amount of the Allowed Claims in Classes ACC-Trade and ACC-Uns, plus except as otherwise ordered by the Bankruptcy Court, an amount equal to interest on such Claims (calculated pursuant to Section 8.14(b) without giving effect to the limitations in Sections 8.14(a) and (c)) from the Commencement Date to the Effective Date or such other date as may be set forth in an Inter-Creditor Dispute Resolution, less all distributions with respect to such classes pursuant to Article IV.
(2) the sum of (X) the product of (I) the ACC CVV Share and (II) the CVV Series A-1b Liquidation Preference divided by the sum of the CVV Series A-1a Liquidation Preference, CVV Series A-1b Liquidation Preference, and CVV Series A-1c Liquidation Preference, and (Y) the product of (R) the X-Clause CVV Sharing Percentage, and (S) the CVV ACC Subordinated Note Potential Distribution (as defined in the succeeding paragraph), shall be distributed Pro Rata to holders of CVV Series A-1b Interests until the CVV Series A-1b Liquidation Preference shall have been paid in full. The CVV Series A-1b Liquidation Preference equals the aggregate amount of the Allowed Claims in Class ACC-SnrNotes, plus except as otherwise ordered by the Bankruptcy Court, an amount equal to interest on such Claims (calculated pursuant to Section 8.14(b) without giving effect to the limitations in Sections 8.14(a) and (c)) from the Commencement Date to the Effective Date or such other date as may be set forth in an Inter-Creditor Dispute Resolution, less all
distributions with respect to such Allowed Claims pursuant to Article IV.
(3) the product of (I) the ACC CVV Share and (II) the CVV Series A-1c Liquidation Preference divided by the sum of the CVV Series A-1a Liquidation Preference, CVV Series A-1b Liquidation Preference and CVV Series A-1c Liquidation Preference (such product of (I) and (II) being referred to as the “CVV ACC Subordinated Notes Potential Distribution”), and prior to such time as the CVV Series A-1b Liquidation Preference shall be paid in full, such product multiplied by (III) the quantity 100% minus the X-Clause CVV Sharing Percentage, shall be distributed Pro Rata to holders of CVV Series A-1c Interests until the CVV Series A-1c Liquidation Preference shall have been paid in full. The CVV Series A-1c Liquidation Preference equals the Allowed Claims in Class ACC-SubNotes, plus except as otherwise ordered by the Bankruptcy Court, an amount equal to interest on such Claims (calculated pursuant to Section 8.14(b) without giving effect to the limitations in Sections 8.14(a) and (c)) from the Commencement Date to the Effective Date or such other date as may be set forth in an Inter-Creditor Dispute Resolution.
(4) Any remaining ACC CVV Share shall first be allocated Pro Rata among 1), 2), and 3) above, and to the extent any Distributable Proceeds remain, as provided in Section 7.04(g)(i)(B).
(B) CVV Series A-2a and CVV Series A-2b Interests. Distributable Proceeds allocated to the CVV Series A-2a Interests and CVV Series A-2b Interests shall be distributed Pro Rata to holders of CVV Series A-2a Interests and holders of CVV Series A-2b Interests until the CVV Series A-2a Liquidation Preference and CVV Series A-2b Liquidation Preference, respectively, shall have been paid in full. The CVV Series A-2a Liquidation Preference equals the Allowed Claims in Class ACC-ESL Snr, plus except as otherwise ordered by the Bankruptcy Court, an amount equal to interest on such Claims (calculated pursuant to Section 8.14(b) without giving effect to the limitations in Sections 8.14(a) and (c)) from the Commencement Date to the Effective Date or such other date as may be set forth in an Inter-Creditor Dispute Resolution. The CVV Series A-2b Liquidation Preference equals the Allowed Claims in Class ACC-ESL Sub, plus except as otherwise ordered by the Bankruptcy Court, an amount equal to interest on such Claims (calculated pursuant to Section 8.14(b) without giving effect to the limitations in Sections 8.14(a) and (c)) from the Commencement Date to the Effective Date or such other date as may be set forth in an Inter-Creditor Dispute Resolution. Any remaining Distributable Proceeds shall then be distributed as provided in Section 7.04(g)(ii).
(ii) Second Priority. After the payment in full of the First Priority Distribution, all Distributable Proceeds shall be distributed Pro Rata to holders of CVV Series B Interests until the CVV Series B Liquidation Preference shall have been paid in full. The CVV Series B Liquidation Preference equals the Allowed amount of the ACC Series B Preferred Stock Interests (including amounts payable in respect of the liquidation preference thereunder and accrued, but unpaid, dividends as of the Commencement Date allocable thereto).
(iii) Third Priority. After the payment in full of the CVV Series B Liquidation Preference, all Distributable Proceeds shall be distributed Pro Rata to holders of CVV Series C Interests until the CVV Series C Liquidation Preference shall have been paid in full. The CVV Series C Liquidation Preference equals the Allowed amount of the ACC Series B Preferred Stock Existing Securities Law Claims.
(iv) Fourth Priority. After the payment in full of the CVV Series C Liquidation Preference, all Distributable Proceeds shall be distributed Pro Rata to holders of CVV Series D Interests until the CVV Series D Liquidation Preference shall have been paid in full. The CVV Series D Liquidation Preference equals the Allowed amount of the ACC Series D Preferred Stock Interests (including amounts payable in respect of the liquidation preference thereunder and accrued, but unpaid, dividends as of the Commencement Date allocable thereto).
(v) Fifth Priority. After the payment in full of the CVV Series D Liquidation Preference, all Distributable Proceeds shall be distributed Pro Rata to holders of CVV Series E Interests until the CVV Series E Liquidation Preference shall have been paid in full. The CVV Series E Liquidation Preference equals the Allowed amount of the ACC Series D Preferred Stock Existing Securities Law Claims.
(vi) Sixth Priority. After the payment in full of the CVV Series E Liquidation Preference, all Distributable Proceeds shall be distributed Pro Rata to holders of CVV Series F Interests until the CVV Series F Liquidation Preference shall have been paid in full. The CVV Series F Liquidation Preference equals (A) principal in an amount equal to the Allowed amount of the ACC Series E and F Preferred Stock Interests (including amounts payable in respect of the liquidation preference thereunder and accrued, but unpaid, dividends as of the Commencement Date allocable thereto).
(vii) Seventh Priority. After the payment in full of the CVV Series F Liquidation Preference, all Distributable Proceeds shall be distributed Pro Rata to holders of CVV Series G Interests until the CVV Series G Liquidation Preference shall have been paid in full. The CVV Series G Liquidation Preference equals the Allowed amount of the ACC Series E and F Preferred Stock Existing Securities Law Claims.
(viii) Eighth Priority. After the payment in full of the CVV Series G Liquidation Preference, all Distributable Proceeds shall be distributed one-half Pro Rata to the holders of the CVV Series H Interests and one-half Pro Rata to the holders of the CVV Series I Interests, until the CVV Series H Liquidation Preference shall have been paid in full, at which point in time all remaining Distributable Proceeds shall be distributed to the holders of the CVV Series I Interests to be shared on a pro rata basis. The CVV Series H Liquidation Preference equals the Allowed amount of the ACC Common Stock Existing Securities Law Claims.
7.05. Litigation, Responsibilities of Contingent Value Vehicle Trustee.
(a) The Contingent Value Vehicle Trustee shall have full power and authority: (i) to prosecute for the benefit of the Contingent Value Vehicle all claims, rights and Causes of Action transferred to the Contingent Value Vehicle (whether such suits are brought in the name of the Contingent Value Vehicle or otherwise), and (ii) to otherwise perform the functions and take the actions provided for or permitted herein, in the Contingent Value Vehicle Agreement or in any other agreement executed by the Contingent Value Vehicle Trustee pursuant to the Plan. The Contingent Value Vehicle Trustee, subject to the direction of the Contingent Value Vehicle Board, shall, in an expeditious but orderly manner, prosecute the Designated Litigation, liquidate and convert to Cash the assets of the Contingent Value Vehicle, administer any cash received in connection therewith, make timely distributions therefrom in accordance with the provisions of this Plan and not unduly prolong the duration of the Contingent Value Vehicle. The liquidation of the Contingent Value Vehicle may be accomplished either through the prosecution, compromise and settlement, abandonment or dismissal of any or all claims, rights or Causes of Action, or otherwise. The Contingent Value Vehicle Trustee, subject to the direction of the Contingent Value Vehicle Board, shall have the absolute right to pursue or not to pursue any and all Designated Litigation as it determines is in the best interests of the Contingent Value Vehicle Holders, and consistent with the purposes of the Contingent Value Vehicle, and shall have no liability for the outcome of its decision except for any damages caused by willful misconduct or gross negligence. The Contingent Value Vehicle Trustee may incur any reasonable and necessary expenses in liquidating and converting the assets to Cash and shall be reimbursed in accordance with the provisions of the Contingent Value Vehicle Agreement.
(b) All costs and expenses associated with the administration of the Contingent Value Vehicle, including those rights, obligations and duties described in this Plan, shall be the responsibility of and paid by the Contingent Value Vehicle.
(c) The Contingent Value Vehicle may retain such law firms, accounting firms, experts, advisors, consultants, investigators, appraisers, auctioneers or other professionals as it may deem necessary (collectively, the “Contingent Value Vehicle Professionals”), in its sole discretion on reasonable terms and conditions of employment or retention, to aid in the performance of its responsibilities pursuant to the terms of this
Plan including the prosecution of the Designated Litigation and the liquidation and distribution of Contingent Value Vehicle assets.
(d) Unless the IRS or a court of competent jurisdiction requires a different treatment, solely (x) for federal income tax purposes and, (y) to the extent permitted by applicable law, for state and local income tax purposes, all Persons (including the Debtors, the Contingent Value Vehicle Trustee and the Contingent Value Vehicle Holders) shall (i) treat the Contingent Value Vehicle Holders as the grantors and deemed owners of the Contingent Value Vehicle, (ii) treat the assets transferred to the Contingent Value Vehicle as distributed by the Debtors to the Contingent Value Vehicle Holders and as transferred by Contingent Value Vehicle Holders to the Contingent Value Vehicle and (iii) report the value of such assets consistently with the valuations provided by the Debtors.
7.06. Investment Powers.
(a) The right and power of the Contingent Value Vehicle Trustee to invest assets transferred to the Contingent Value Vehicle, the proceeds thereof, or any income earned by the Contingent Value Vehicle, shall be limited to the right and power to invest such assets (pending periodic distributions in accordance with Section 7.04(c) of this Plan) in (i) marketable direct obligations issued by, or unconditionally guaranteed by, the United States government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition thereof; (ii) marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, having the highest rating obtainable from both Standard & Poor’s Rating Services (“S&P”) and Moody’s Investors Service, Inc. (“Moody’s”); (iii) commercial paper maturing no more than one year from the date of creation thereof and, at the time of acquisition, having the highest ratings obtainable from both S&P and Moody’s; (iv) certificates of deposit or bankers’ acceptances maturing within one year from the date of acquisition thereof issued by any bank organized under the laws of the United States of America or any state thereof or the District of Columbia or any U.S. branch of a foreign bank having at the date of acquisition thereof combined capital and surplus of not less than $250,000,000; (v) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clause (i) above, entered into with any bank meeting the qualifications specified in clause (iv) above; and (vi) investments in money market funds which invest substantially all their assets in securities of the types described in clauses (i) through (v) above (“Permitted Investments”); provided, however, that the Contingent Value Vehicle Trustee may expend the assets of the Contingent Value Vehicle: (i) as reasonably necessary to meet contingent liabilities and to maintain the value of the assets of the Contingent Value Vehicle during liquidation, (ii) to pay reasonable administrative expenses (including any taxes imposed on the Contingent Value Vehicle or fees and expenses in connection with litigation), (iii) to satisfy other liabilities incurred or assumed by the Contingent Value Vehicle (or to which the assets are otherwise subject) in accordance with this Plan or the Contingent Value Vehicle Agreement, and (iv) to prosecute the Designated Litigation;
and provided further that, under no circumstances, shall the Contingent Value Vehicle segregate the assets of the Contingent Value Vehicle on the basis of classification of the holders of Contingent Value Vehicle Interests, other than with respect to distributions to be made on account of Contingent Value Vehicle Interests in accordance with the provisions hereof.
(b) The Contingent Value Vehicle Trustee shall, except as otherwise approved by the Bankruptcy Court, invest the reserves established pursuant to Section 6.08 hereof only in United States dollar denominated demand deposits with banks organized under the laws of the United States of America or any state thereof or the District of Columbia.
7.07. Funding of Reserves; Distributions; Withholding.
(a) Litigation Prosecution Fund. The Contingent Value Vehicle Trustee shall, from time to time, increase or decrease the funding of the Litigation Prosecution Fund as it deems appropriate.
(b) Litigation Indemnification Fund. Prior to any distribution of Distributable Proceeds to a Series of CVV Interests other than Series RF Interests, the CVV Trustee shall deposit in the LIF an amount sufficient to cause the balance in such LIF to equal the balance required pursuant to Section 6.08(c)(iv)(C)(3) hereof.
(c) Distributions. The Contingent Value Vehicle Trustee shall distribute at least annually to the holders of Contingent Value Vehicle Interests all Distributable Proceeds; provided, however, that the Contingent Value Vehicle may retain such amounts (i) as are reasonably necessary to meet contingent liabilities and to maintain the value of the assets of the Contingent Value Vehicle during liquidation, (ii) to pay reasonable administrative expenses (including any taxes imposed on the Contingent Value Vehicle or in respect of the assets of the Contingent Value Vehicle), (iii) to satisfy other liabilities incurred or assumed by the Contingent Value Vehicle (or to which the assets are otherwise subject) in accordance with the Plan or the Contingent Value Vehicle Agreement, (iv) as the Contingent Value Vehicle Trustee deems appropriate to reserve for Contingent Value Vehicle Interests that are likely to be issued with respect to Claims not yet Allowed and (v) to prosecute the Designated Litigation. All such distributions shall be Pro Rata within a Series of CVV Interests, and, subject to the relative priorities and other terms of the Plan and the Contingent Value Vehicle Agreement.
(d) Withholding. The Contingent Value Vehicle Trustee may withhold from amounts distributable to any Person any and all amounts, determined in the Contingent Value Vehicle Trustee’s reasonable sole discretion, to be required by any law, regulation, rule, ruling, directive or other governmental requirement.
(e) Certain Assets Not Distributable Proceeds. None of the Litigation Indemnification Fund, the Common Stock of ACC, the equity interests or assets of the Distribution Companies, or any other escrow or reserve held by the Contingent Value Vehicle hereunder shall comprise Distributable Proceeds without the prior approval of the Bankruptcy Court.
7.08. Income Allocations; Reporting Duties.
(a) Allocations of Contingent Value Vehicle Taxable Income. Allocations of Contingent Value Vehicle taxable income shall be determined by reference to the manner in which an amount of cash equal to such taxable income would be distributed (without regard to any restrictions on distributions described herein) if, immediately prior to such deemed distribution, the Contingent Value Vehicle had distributed all of its other assets (valued for this purpose at their tax book value) to the holders of the Contingent Value Vehicle Interests, taking into account all prior and concurrent distributions from the Contingent Value Vehicle (including all distributions held in escrow pending the resolution of Disputed Claims). Similarly, taxable loss of the Contingent Value Vehicle will be allocated by reference to the manner in which an economic loss would be borne immediately after a liquidating distribution of all of the assets of the Contingent Value Vehicle. The tax book value of the assets of the Contingent Value Vehicle for this purpose shall equal the fair market value of such assets on the Effective Date or, if later, the date such assets were acquired by the Contingent Value Vehicle, adjusted in either case in accordance with tax accounting principles prescribed by the Tax Code, the regulations and other applicable administrative and judicial authorities and pronouncements.
(b) Other. The Contingent Value Vehicle Trustee shall be responsible for filing all federal, state and local tax returns for the Contingent Value Vehicle and shall provide tax returns and information reports to the Contingent Value Vehicle Holders to the extent required by applicable law. The Contingent Value Vehicle Trustee shall provide the Contingent Value Vehicle Holders with copies of annual, audited financial statements relating to the Contingent Value Vehicle as early after the end of the fiscal year of the Contingent Value Vehicle as is commercially reasonable.
7.09. Net Contingent Value Vehicle Recovery/Disgorgement of Claims.
(a) Net Judgment. Notwithstanding anything contained herein to the contrary, in the event that a defendant in a litigation brought by the Contingent Value Vehicle Trustee (or any predecessors-in-interest, including the Statutory Committees with respect to the Bank Lender Avoidance Complaint) for and on behalf of the Contingent Value Vehicle (i) is required by a Final Order to make payment to the Contingent Value Vehicle (the “Judgment Amount”), and (ii) is permitted by a Final Order to reduce the Judgment Amount by (1) virtue of a Defensive Claim permitted by section 553 of the Bankruptcy Code or other applicable law including the law of recoupment or (2) the Deemed Value of the distribution such defendant otherwise would have been entitled to receive on account of any Allowed Claim that has arisen under Section 502(h) of the Bankruptcy Code on account of such Final Order (a “Valid Setoff”), (x) such defendant shall be obligated to pay only the excess, if any, of the amount of the Judgment Amount over the Valid Setoff and (y) neither the Contingent Value Vehicle, nor the Contingent Value Vehicle Holders nor any Person acting on their behalf shall be entitled to assert a claim against the Debtors, the Reorganized Debtors, the Distribution Companies or any Transferred Joint Venture Entity with respect to the Valid Setoff.
(b) Disgorgement. Notwithstanding anything contained herein to the contrary, in the event that either a compromise and settlement or an order or judgment with respect to a Designated Litigation provides for a full or partial waiver, subordination or disallowance of a defendant’s Claim or Claims (including Bank Lender Fee Claims under Section 6.08 of this Plan) against one or more of the Debtors and if, as a result of such waiver, subordination or disallowance such defendant shall have received under the Plan a distribution in an amount (the “Excess Amount”) greater than that to which such defendant would have been entitled had such waiver, subordination or disallowance occurred and been enforced prior to the Effective Date, then, subject to the terms of such compromise and settlement or order or judgment (i) such defendant shall promptly pay such Excess Amount, including interest thereon at the Prime Rate to the date of payment, in immediately available funds to the Contingent Value Vehicle, (ii) if such defendant shall fail to make such payment, then, in addition to the Contingent Value Vehicle’s rights to enforce such settlement or order or judgment, the Reorganized Debtors shall withhold future Plan distributions payable to such defendant (including any payments in respect of debt, equity or other securities issued to such defendant under the Plan) up to the amount of the unpaid Excess Amount and shall pay such withheld distributions over to the Contingent Value Vehicle. Notwithstanding the foregoing, unless otherwise provided in such compromise and settlement or order or judgment, such defendant shall retain its Pro Rata right to a distribution of any transfer avoided under Section 547 of the Bankruptcy Code.
7.10. The Contingent Value Vehicle Board.
(a) The Contingent Value Vehicle Board shall initially be comprised of three members designated pursuant to Section 6.14 of this Plan. After the Effective Date, the Contingent Value Vehicle Board shall be appointed in accordance with the terms of the Contingent Value Vehicle Agreement. The Contingent Value Vehicle Trustee shall consult regularly with the Contingent Value Vehicle Board when carrying out the purpose and intent of the Contingent Value Vehicle. The Contingent Value Vehicle Board shall act by majority vote. Members of the Contingent Value Vehicle Board shall be entitled to compensation in accordance with the Contingent Value Vehicle Agreement and to reimbursement of the reasonable and necessary expenses incurred by them in carrying out the purpose of the Contingent Value Vehicle Board, in each case from the Contingent Value Vehicle.
(b) In the case of an inability or unwillingness of any member of the Contingent Value Vehicle Board to serve, such member shall be replaced by designation of the remaining members of the Contingent Value Vehicle Board. If any position on the Contingent Value Vehicle Board remains vacant for more than 60 days, such vacancy shall be filled within fifteen days thereafter by the designation of the Contingent Value Vehicle Trustee without the requirement of a vote by the other members of the Contingent Value Vehicle Board.
(c) Upon the certification by the Contingent Value Vehicle Trustee that all assets of the Contingent Value Vehicle have been distributed, abandoned or otherwise
disposed of, the members of the Contingent Value Vehicle Board shall resign their positions, whereupon they shall be discharged from further duties and responsibilities.
(d) Any settlement or abandonment of Designated Litigation which the Contingent Value Vehicle Trustee or any member of the Contingent Value Vehicle Board may propose shall require the unanimous approval of the Contingent Value Vehicle Board, provided, however, that (i) no member of the Contingent Value Vehicle Board may cast a vote with respect to any Designated Litigation to which he or she, his or her employer, or any Affiliate thereof is a party; (ii) any settlement or abandonment of Designated Litigation involving Claims in an aggregate amount exceeding $5,000,000 shall require approval of the Bankruptcy Court; and (iii) the Contingent Value Vehicle Trustee may seek Bankruptcy Court approval of a settlement or abandonment of Designated Litigation if the Contingent Value Vehicle Board fails to act on a proposed settlement or abandonment of such Designated Litigation within 60 days of receiving notice of such proposed settlement by the Contingent Value Vehicle Trustee or as otherwise determined by the Contingent Value Vehicle Trustee. The Contingent Value Vehicle Board may instruct the Contingent Value Vehicle Trustee to settle or abandon any Designated Litigation so long as such settlement or abandonment is fair and reasonable based upon the reasonable, good faith business judgment of the Contingent Value Vehicle Board.
(e) The Contingent Value Vehicle Board may remove the Contingent Value Vehicle Trustee for cause. In the event the requisite approval is not obtained, the Contingent Value Vehicle Trustee may be removed by the Bankruptcy Court for cause shown. In the event of the resignation or removal of the Contingent Value Vehicle Trustee, the Contingent Value Vehicle shall continue to remain in existence and shall not be dissolved, and the Contingent Value Vehicle Board shall, by majority vote, designate a Person to serve as successor Contingent Value Vehicle Trustee.
(f) Notwithstanding anything to the contrary in this Plan, none of the Contingent Value Vehicle Trustee, the Contingent Value Vehicle Board nor any of its members, Contingent Value Vehicle Professionals or any duly designated agent or representatives of any such party shall be liable for the act, default or misconduct of the Contingent Value Vehicle Trustee or any other member of the Contingent Value Vehicle Board, nor shall the Contingent Value Vehicle Trustee or any member of the Contingent Value Vehicle Board be liable for anything other than such Person’s own gross negligence or willful misconduct. The Contingent Value Vehicle Trustee and the Contingent Value Vehicle Board may, in connection with the performance of their duties, and in their sole and absolute discretion, consult with the Contingent Value Vehicle Professionals, and shall not be liable for anything done or omitted or suffered to be done in accordance with such advice or opinions. If the Contingent Value Vehicle Trustee or the Contingent Value Vehicle Board determines not to consult with the Contingent Value Vehicle Professionals, they shall not be deemed to impose any liability on the of the Contingent Value Vehicle Trustee or the Contingent Value Vehicle Board (as applicable), or the members and/or designees thereof.
(g) The Contingent Value Vehicle Board shall govern its proceedings through the adoption of by-laws, which the Contingent Value Vehicle Board may adopt by majority vote. No provision of such by-laws shall supersede, or conflict with, any express provision of this Plan.
ARTICLE VIII.
PROVISIONS REGARDING VOTING AND DISTRIBUTIONS UNDER THE PLAN
8.01. Voting of Claims; Classes Subsequently Deemed Unimpaired; Vacant Classes.
(a) Each holder of an Allowed Claim or Allowed Equity Interest in an impaired Class that is entitled to vote on the Plan pursuant to Article IV of the Plan shall be entitled to vote separately to accept or reject the Plan as provided in such order as is entered by the Bankruptcy Court establishing procedures with respect to the solicitation and tabulation of votes to accept or reject the Plan, or any other order or orders of the Bankruptcy Court.
(b) The Debtors may seek an order of the Bankruptcy Court holding that any Class listed in this Plan as impaired is actually unimpaired or that any Class listed as unimpaired in this Plan is actually impaired. Notwithstanding anything to the contrary contained in this Plan, in the event that the Debtors obtain an order of the Bankruptcy Court holding that a Class listed in this Plan as impaired is unimpaired (whether before or after soliciting of acceptances for the Plan), such Class shall be unimpaired, each holder of an Allowed Claim in such Class shall be conclusively presumed to have accepted the Plan and any votes to accept or reject the Plan submitted by holders of Claims in such Class shall be null, void and have no effect.
(c) Any Class of Claims or Equity Interests that does not have a holder of an Allowed Claim or Equity Interest or a Claim or Equity Interest temporarily allowed by the Bankruptcy Court as of the date of the Confirmation Hearing shall be deemed eliminated from the Plan for purposes of voting to accept or reject the Plan and for purposes of determining acceptance or rejection of the Plan by such Class pursuant to Section 1129(a)(8) of the Bankruptcy Code.
8.02. Nonconsensual Confirmation; Elimination of Debtors.
(a) If any impaired Class of Claims or Equity Interests entitled to vote shall not accept the Plan by the requisite statutory majority provided in section 1126(c) of the Bankruptcy Code, the Debtors reserve the right (subject to any restrictions of the Purchase Agreements) to amend the Plan in accordance with Section 15.08 of this Plan (including an amendment that transfers one or more Debtors (other than a member of the Parnassos or Century-TCI Debtor Groups except Empire Sports Network) to different Debtor Groups (other than the Parnassos or Century-TCI Debtor Groups), or that eliminates one or more Debtors or Debtor Groups (other than the Parnassos or Century-TCI Debtor Groups) from participation under the Plan) or undertake to have the Bankruptcy Court confirm the Plan under section 1129(b) of the Bankruptcy Code or
both. With respect to any impaired Classes of Claims or Equity Interests that are deemed to reject the Plan, the Debtors shall request that the Bankruptcy Court confirm the Plan pursuant to section 1129(b) of the Bankruptcy Code. Further, to the extent necessary and in accordance with Section 15.08 of this Plan, the terms of this Plan may be modified by the Debtors to reallocate value from all Classes at and below the level of the objecting Class to all impaired senior Classes until such impaired senior Classes are paid in accordance with the absolute priority rule of section 1129(b) of the Bankruptcy Code. To the extent any Class is deemed to reject the Plan by virtue of the treatment provided to such Class, the Plan shall be “crammed down” on the claimants within such Class pursuant to section 1129(b) of the Bankruptcy Code.
(b) In the event that either (i) the Debtors have not acquired title to a Managed Entity, or (ii) the cable systems owned by a Managed Entity are Non-Transferred MCE Systems, then such Managed Entity shall be eliminated from this Plan. If all of the Managed Entities in a Debtor Group are eliminated from the Plan, then such Debtor Group shall be eliminated from the Plan.
(c) If less than all of the Debtors in a Debtor Group are eliminated from the Plan, then: (i) the remaining Debtors in such Debtor Group shall succeed to the name of the Debtor Group including the eliminated Debtor, and (ii) for purposes of the Plan, the eliminated Debtor shall be treated as a separate and distinct Debtor Group.
(d) If an entire Debtor Group is eliminated from the Plan, such Debtor Group shall be referred to as a “Rejecting Debtor Group”. With respect to each Rejecting Debtor Group that has a Direct Subsidiary Debtor Group:
(i) A new Class of Equity Interests shall be deemed created at the Direct Subsidiary Debtor Group reflecting the Equity Interests held by the Rejecting Debtor Group. Such new Class of Equity Interests shall be deemed to have rejected the Plan.
(ii) The Plan shall be confirmed with respect to the new Class of Equity Interests pursuant to Section 1129(b) of the Bankruptcy Code.
(iii) A new reserve (each a “Distribution Reserve”) shall be created with respect to the new Class of Equity Interests which will be funded with the Plan Consideration that would have funded the Debtor Group Reserves of the Rejecting Debtor Group if the Rejecting Debtor Group had not been eliminated from the Plan.
(iv) The Direct Subsidiary Debtor Group shall on the Effective Date issue new common equity to the Parent Debtor Group of the Rejecting Debtor Group.
(v) The Plan Administrator may, in its discretion, take such action as it deems appropriate to have the Rejecting Debtor Group “deconsolidated” from the tax reporting groups of the other Debtors for federal and state income tax purposes, or if the Rejecting Debtor Group is a “pass-through” entity for tax
purposes, to cause the equity in the Rejecting Debtor Group to be transferred to an entity which is not consolidated with the tax reporting group of the other Debtors for federal and state income tax purposes. The Plan Administrator shall pay taxes attributable to the transactions contemplated by this Section 8.02(d) or income or gain realized by any member of the Rejecting Debtor Group or with respect to the Plan Consideration held in the new Distribution Reserve created pursuant to this Section 8.02(d), either by reserving (i) Cash held in such Distribution Reserve or (ii) proceeds from sale of a sufficient number of shares of TWC Class A Common Stock held in such Distribution Reserve. To the extent required by the Bankruptcy Court in connection with the Confirmation Hearing, the Distribution Reserve shall be increased by Plan Consideration with a Deemed Value equal to a reasonable reserve for any taxes payable pursuant to the preceding sentence.
8.03. Distribution Companies. All distributions under the Plan (other than those to be made by the Contingent Value Vehicle) shall be made by the Distribution Companies or an agent thereof appointed by the Plan Administrator. The Distribution Companies shall not be required to give any bond or surety or other security for the performance of their duties unless otherwise ordered by the Bankruptcy Court; and, in the event that the Distribution Companies are so otherwise ordered, all costs and expenses of procuring any such bond or surety shall be borne by the Distribution Companies. The Distribution Companies shall not be responsible for making distributions on account of Contingent Value Vehicle Beneficial Interests.
8.04. Rights and Powers of Distribution Companies.
(a) Expenses Incurred on or After the Effective Date. Except as otherwise ordered by the Bankruptcy Court, the amount of any reasonable fees and expenses incurred by the Distribution Companies, or with respect to assets held by the Distribution Companies (including the Debtor Group Reserves, the Inter-Creditor Dispute Holdback and the Transaction Escrows) to the extent such assets include insufficient Cash for payment of such expenses pursuant to Section 9.03(c), on or after the Effective Date (including taxes) and any reasonable compensation and expense reimbursement claims (including reasonable attorney and other professional fees and expenses) made by the Distribution Companies shall be paid from the Reserved Cash.
(b) Investment Powers. The reserves established pursuant to Sections 4.04, 4.25, 4.46, 4.49 and 6.02(a) hereof shall be held by the Distribution Company. The reserves established pursuant to Sections 4.17 and 4.21 shall be held by the Parnassos Distribution Companies and the Century-TCI Distribution Company, respectively. The Distribution Companies may invest their assets in Permitted Investments; provided, however, that, absent approval of the Bankruptcy Court, (i) the Distribution Company shall invest the assets held in the Cash Funded Reserves and the reserves and escrows established pursuant to Sections 4.04, 4.25, 4.46, 4.49, 6.02(a) and 8.02(d) hereof and (ii) the Parnassos Distribution Companies and the Century-TCI Distribution Company shall invest all of their assets only in United States dollar denominated demand deposits with banks organized under the laws of the United States of America or any state thereof or the District of Columbia.
8.05. Manner of Distributions.
(a) Any payment of Cash made by the Distribution Companies pursuant to the Plan may, at such Distribution Company’s option, be made by check drawn on a domestic bank or wire transfer.
(b) Notwithstanding anything otherwise to the contrary, in the sole discretion of the Plan Administrator, any distribution of Plan Consideration under this Plan may be made by means of the book entry transfer facilities of the Depository Trust Company as an alternative to delivery of physical certificates or instruments representing TWC Class A Common Stock included in such Plan Consideration, as applicable. Any distribution made pursuant to the immediately preceding sentence shall be made to the account of the holder of the Claim or Equity Interest entitled to receive such Plan Consideration hereunder or to the account of an agent authorized to receive securities on behalf of such holder.
(c) A distribution pursuant to this Plan to the DIP Agent, the Indenture Trustees or the Administrative Agent (each, an “Agent”) shall be deemed equivalent to a distribution under this Plan directly to the holders of the Allowed Claims that such Agent represents under the applicable Indenture or credit agreement giving rise to such Claims, and, upon distribution of Plan Consideration to such Agent sufficient to result in Payment in Full of such Claims, the Debtors shall not be required to make any further distribution under this Plan on account of such Claims, irrespective of any deduction, setoff, withholding, assertion of charging lien rights or other action taken by such Agent. The Agents shall not be required to give any bond or surety or other security for the performance of their duties unless otherwise ordered by the Bankruptcy Court; and, in the event that such parties are so otherwise ordered, all costs and expenses of procuring any such bond or surety shall be paid by the Reorganized Debtors.
8.06. Timing of Distributions. In the event that any payment, distribution, or act under the Plan is required to be made or performed on a date that is not a Business Day, then the making of such payment or distribution or the performance of such act may be completed on or as soon as reasonably practicable after the next succeeding Business Day, but shall be deemed to have been completed as of the required date.
8.07. Distributions of Plan Consideration to Priority and Secured Creditors and Creditors Whose Distribution is Based on a Debtor Group Reserve.
(a) Payment of Distributions. Subject to Bankruptcy Rule 9010, all distributions under this Plan to holders of Allowed Claims and Equity Interests in Classes 1, 2, 3, FV-Trade, FV-Uns, FV-ESL, FVHC-Trade, FVHC-Uns, FVHC-ESL, FVHC-Conv, AGPH-Trade, AGPH-Uns, P-Trade, P-Uns, TCI-Trade, TCI-Uns, Century-Trade, Century-Uns, CCHC-Trade, CCHC-Uns, CCC-Trade, CCC-Uns, ARA-Trade, ARA-Uns, ARA-ESL, ARA-Conv, OLY-Trade, OLY-Uns, UCA-Trade, UCA-Uns, OLYParent-Conv, OLYParent-Trade, OLYParent-Uns, OLYParent-ESL, FtM-FPL, FtM-Trade, FtM-Uns, FtMS-Trade, FtMS-Uns, RCentCB-Cont, RCentCB-Trade, RCentCB-Uns, ROlyCB-Cont, ROlyCB -Trade, ROlyCB-Uns, RUCACB-Cont, RUCACB-Trade,
RUCACB-Uns, GSETL, OPS-Trade, OPS-Uns, ACC-Trade, ACC-Uns, ACC-ESL Snr, ACC-ESL Sub, ACC-BPfd, ACC-BESL, ACC-DPfd, ACC-DESL, ACC-EFPfd, ACC-EFESL, ACC-CSESL, ACC-CS, ACC-Conv shall be made to the holder of each Allowed Claim or Equity Interest, as applicable, at the address of such holder as listed on the Schedules as of the Distribution Record Date, unless the Debtors or, on and after the Effective Date, the Reorganized Debtors or the Plan Administrator, as applicable, have been notified in writing of a change of address, including by the timely filing of a proof of claim by such holder that provides an address for such holder different from the address reflected on the Schedules. Distributions of CVV Interests shall in all cases be made pursuant to the procedures described in Section 7.04(c). In the event that any distribution to any such holder is returned as undeliverable, the applicable Distribution Company shall use reasonable efforts to determine the current address of such holder, but no distribution to such holder shall be made unless and until such Distribution Company has determined the then current address of such holder, at which time such distribution shall be made to such holder without interest; provided, however, that, at the expiration of one year from the distribution thereof, such distributions shall be deemed unclaimed property and shall be treated in accordance with Section 8.18 and Article IX of this Plan.
(b) Distributions to Holders of Allowed Claims. The Periodic Distribution Date on which the holder of an Allowed Claim first receives a distribution with respect to the Claim is referred to as the “First Payment Date.” On each Distribution Date, the applicable Distribution Company shall first distribute to each holder of an Allowed Claim for whom such Distribution Date is its First Payment Date, the distribution provided for in Article IV hereof.
(c) True Up Payments. If on any Periodic Distribution Date any holder of an Allowed Claim in a Class has received a distribution with a Deemed Value per dollar of Allowed Claim less than the Deemed Value per dollar of Allowed Claim available for distribution on such Periodic Distribution Date, then such holder shall receive an additional distribution so that such holder’s Deemed Value per dollar of Allowed Claim is equal to the Deemed Value per dollar of Allowed Claim distributable on such Periodic Distribution Date. For the avoidance of doubt, if on any Periodic Distribution Date any holder of an Allowed Claim in a Class has received a distribution with a Deemed Value per dollar of Allowed Claim greater than the Deemed Value per dollar of Allowed Claim available for distribution on such Periodic Distribution Date, then such holder shall not have any obligation to restore any of the excess distribution previously received.
8.08. Distributions on Account of Note Claims. Distributions for the benefit of the holders of the Claims in Classes ACC-SnrNotes, ACC-SubNotes, ARA-Notes, FV-Notes, FVHC-Notes and OLYParent-Notes shall be made to (a) the Indenture Trustee with respect to the notes or debentures underlying such Claims or (b) with the prior written consent of the Indenture Trustee for the Notes underlying such Claims, through the facilities of the Depository Trust Company for the benefit of the holders of such Claims or (c) with respect to distributions of CVV Interests, pursuant to the procedures described in Section 7.04(c). If a distribution with respect to a Claim in Classes ACC-SnrNotes, ACC-SubNotes, ARA-Notes, FV-Notes, FVHC-Notes and OLYParent-Notes is made to an Indenture Trustee, such Indenture Trustee shall, in turn, promptly administer the distribution to the holders of Allowed Claims in such Class as of
the Distribution Record Date in accordance with the Plan and the applicable Indenture; provided, however, that nothing herein shall be deemed to impair, waive, or enhance any rights of an Indenture Trustee with respect to a Charging Lien.
8.09. Distributions on Account of Bank Claims. Any distributions to be made for the benefit of the holders of the Bank Claims shall be made to the appropriate Agent under the credit facility relating to such Bank Claim as of the Effective Date or as otherwise agreed by ACC and the Agent. Such Agent shall, in turn, promptly administer the distribution to the holders of the Bank Claims with respect to which it acts as Agent.
8.10. Distributions with Respect to DIP Lender Claims. Distributions for the benefit of the holders of the DIP Lender Claims shall be made to the DIP Agent on the Effective Date. The DIP Agent shall, in turn, promptly administer the distribution to the holders of the DIP Lender Claims.
8.11. Maximum Distribution. Notwithstanding anything otherwise to the contrary, in no event shall a holder of an Allowed Claim or Allowed Equity Interest be entitled to receive, or receive, a distribution of TWC Class A Common Stock (and/or Plan Consideration, as applicable) or other consideration, which based on the Deemed Value of the TWC Class A Common Stock (and/or Plan Consideration, as applicable) and other consideration received results in a distribution of greater than Payment in Full with respect to such Allowed Claim or Allowed Equity Interest.
8.12. Fractional Shares; De Minimis Distributions.
(a) No fractional shares of TWC Class A Common Stock shall be distributed under the Plan. When any distribution pursuant to the Plan on account of an Allowed Claim would otherwise result in the issuance of a number of shares of TWC Class A Common Stock that is not a whole number, the actual distribution of shares of TWC Class A Common Stock shall be rounded such that any fractions of less than one whole share of TWC Class A Common Stock shall be rounded to the next lower whole number. The total number of authorized shares of TWC Class A Common Stock to be distributed to holders of Allowed Claims shall be adjusted as necessary to account for the rounding provided in this Section 8.12(a).
(b) Notwithstanding anything herein to the contrary, the Distribution Company shall have no obligation to make a distribution to a holder of an Allowed Claim if such distribution would be less than $20 or the Deemed Value of such distribution of TWC Class A Common Stock would be less than $20 (or such other amount ordered by the Bankruptcy Court) (the “Threshold Amount”). If, on any Distribution Date, the amount of Cash or the Deemed Value of TWC Class A Common Stock that otherwise would have been distributed to a holder of an Allowed Claim is less than the Threshold Amount, the Distribution Company shall reserve such amount of Cash or the number of shares of TWC Class A Common Stock representing such Deemed Value until the first Distribution Date on which the amount to be distributed to such holder is equal to or greater than the Threshold Amount. If, at the time of the final Distribution Date hereunder, the amount of Cash or the Deemed Value of TWC Class A Common Stock
then allocable to an Allowed Claim but not paid as a result of the foregoing sentence is less than the Threshold Amount (taking into account prior amounts reserved under this Section for such Claim but not paid), the Distribution Company shall not be required to make a final distribution on account of such Allowed Claim and such amount of Cash and number of shares of TWC Class A Common Stock representing such Deemed Value shall be made available for distribution to other Allowed Claims in accordance with the Plan. If, after application of the foregoing, at the time of the final Distribution Date hereunder, the Allocable Portion of Cash or Deemed Value of TWC Class A Common Stock then allocable to any remaining Allowed Claims would be less than the Threshold Amount, the Distribution Company shall not be required to make a final distribution on account of such Allowed Claim but shall transfer the Cash and number of shares of TWC Class A Common Stock representing such Deemed Value to the Contingent Value Vehicle.
8.13. Surrender of Instruments. Except to the extent evidenced by electronic book entry or as may be otherwise agreed to in writing by the Debtors or the Reorganized Debtors (or the Plan Administrator, as applicable), as a condition to receiving any distribution under the Plan, each holder of a certificated instrument or note must surrender such instrument or note held by it to the Distribution Company or its designee (which such designee may include the Indenture Trustees), unless such certificated instrument or note is being Reinstated or being left unimpaired under the Plan. Any holder of such instrument or note that is not otherwise excluded from the requirements of the immediately preceding sentence and that fails to (i) surrender such instrument or note, or (ii) execute and deliver an affidavit of loss and/or indemnity reasonably satisfactory to the Distribution Company or its designee before the first anniversary of the Effective Date shall be deemed to have forfeited all rights and Claims and may not participate in any distribution under the Plan. Any distribution so forfeited shall be treated as Unclaimed Property under Section 8.18.
8.14. Interest on Claims.
(a) If the sum of (x) all Allowed Claims within a Debtor Group (except as otherwise ordered by the Bankruptcy Court, the Existing Securities Law Claims of the Debtor Group shall be included in this calculation), and (y) the amount of Disputed Claims set forth in the Estimation Order relating to such Debtor Group, is less than the Debtor Group Maximum Value of such Debtor Group, then simple interest shall accrue with respect to such Allowed Claims from the Commencement Date as provided in this Section 8.14, provided that interest shall not accrue on claims for damages arising from the rejection of any contract or lease until the rejection date of such contract or lease.
(b) To the extent that interest accrues with respect to a Class of Claims pursuant to Section 8.14(a), pursuant to a ruling of the Bankruptcy Court on April 27, 2006, the rate at which interest shall accrue will be as follows:
(i) With respect to Trade Claims in the following Classes: ACC-Trade, AGPH-Trade, ARA-Trade, FVHC-Trade and OLYParent-Trade, simple interest shall accrue with respect to the Trade Claims in such Class at the rate of 8% per annum.
(ii) With respect to General Unsecured Claims in the following Classes: ACC-Uns, AGPH-Uns, ARA-Uns, CCC-Uns, CCHC-Uns, Century-Uns, TCI-Uns, FV-Uns, FVHC-Uns, FtM-Uns, FtMS-Uns, Fundco, OLY-Uns, OLYParent-Uns, OPS-Uns, P-Uns, RCentCB-Uns, ROlyCB-Uns, RUCA-Uns, and UCA-Uns, simple interest shall accrue with respect to the General Unsecured Claims in such Class at the rate of 8% per annum.
(iii) With respect to Classes of Subsidiary Note Claims, Class ACC-SnrNotes or Class ACC-SubNotes, simple interest shall accrue with respect to the Claims at the non-default rate payable under the agreement or instrument giving rise to such Allowed Claim; provided, however, that nothing in this Section 8.14 shall limit the rights of the holders of the FPL Note Claims to a different rate of interest under section 506(b) of the Bankruptcy Code to the extent applicable.
(iv) With respect to Claims other than (x) Claims provided for in (i), (ii) or (iii) above, (y) Secured Claims otherwise provided for in this Section 8.14, and (z) Bank Claims or Trade Claims for which interest is expressly provided for in Article IV hereof, simple interest shall accrue at a rate equal to:
(A) the non-default rate payable under the agreement or instrument giving rise to such Allowed Claim, as and to the extent enforceable; and
(B) to the extent no such agreement or instrument exists, or the provision in such agreement on interest is not enforceable, then such rate as is determined by the Bankruptcy Court at the Confirmation Hearing.
(c) Interest shall accrue with respect to Allowed Claims in a Debtor Group until the earlier of (A) the Effective Date, and (B) such time as the sum of (x) all Allowed Claims within such Debtor Group determined pursuant to Section 8.14(a)(x) (excluding the accrual of interest pursuant to this Section 8.14), (y) the amount of Disputed Claims set forth in the Estimation Order relating to such Debtor Group which have not otherwise been Allowed or dismissed, and (z) interest accrued pursuant to this Section 8.14, equals the Debtor Group Maximum Value of such Debtor Group.
(d) Simple interest shall accrue with respect to Secured Claims from the Commencement Date to the date of payment at the applicable contract rate (or if no contract rate exists, at 8% per annum).
(e) Unless otherwise specifically provided for in this Plan, the Confirmation Order, the DIP Facility or a post-Commencement Date agreement in writing between the Debtors and a Claimholder, interest shall not accrue or be paid on Claims or Equity Interests from and after the Commencement Date, and no holder of a Claim or Equity Interest shall be entitled to interest accruing on or after the Commencement Date on any Claim, right or Equity Interest.
(f) Except as provided for in Section 9.01(f)(ii), interest shall not accrue or be paid on any Disputed Claim or Disputed Equity Interest in respect of the period from the
Effective Date to the date a final distribution is made when and if such Disputed Claim or Disputed Equity Interest becomes an Allowed Claim or Allowed Equity Interest.
(g) Nothing in this or any other section of the Plan shall prejudice (i) any party in interest in seeking post-Effective Date interest, upon its allowed claim on or prior to the date set for filing objections to the Plan, (ii) any other party in interest in timely opposing such request, or (iii) the calculation of the liquidation preference on any series of CVV Interests.
(h) The provisions of this Section 8.14 (other than clauses (f) and (g)) shall not apply to the accrual of interest with respect to Trade Claims in the following Classes, as to which the corresponding distribution provision of Article IV hereof shall govern: CCC-Trade, CCHC-Trade, Century-Trade, FtM-Trade, FtMS-Trade, Fundco, FV-Trade, OLY-Trade, Ops-Trade, P-Trade, RCentCB-Trade, RolyCB-Trade, RUCA-Trade, TCI-Trade, and UCA-Trade.
8.15. Withholding Taxes on Distributions. Any federal, state or local withholding taxes or other amounts required to be withheld under applicable law shall be deducted from distributions hereunder and no Person shall be entitled to any additional distribution as a result of any such withholding. All Persons holding Claims or Equity Interests shall be required to provide any information necessary to effect the withholding of such taxes.
8.16. Disputed Payment of Allowed Claims or Equity Interests. If any dispute arises as to the identity of a holder of an Allowed Claim or Equity Interest who is to receive any distribution, the Distribution Companies may, in lieu of making such distribution to such Person, make such distribution into an escrow account until the disposition thereof shall be determined by Bankruptcy Court order or by written agreement among the interested parties to such dispute.
8.17. Unclaimed Distributions. All distributions under the Plan that are unclaimed for a period of one year after distribution thereof (or an attempt to effect such distribution) in accordance with the Plan shall be deemed unclaimed property under section 347(b) of the Bankruptcy Code (the “Unclaimed Property”). Unclaimed Property shall be forfeited by any holder of a Claim originally entitled thereto hereunder, whereupon all right, title and interest in and to the Unclaimed Property shall immediately and irrevocably be available for future distributions to holders of Allowed Claims or Allowed Equity Interests hereunder in accordance with Article IX of the Plan and the holder of the Allowed Claim or Allowed Equity Interest previously entitled to such Unclaimed Property shall cease to be entitled thereto and any entitlement of any holder of any Claim or Equity Interest to such distributions shall be extinguished and forever barred.
8.18. Distributions to Holders as of the Distribution Record Date. As at the close of business on the Distribution Record Date, the claims register and stock transfer books shall be closed, and there shall be no further changes in the record holder of any Claim or Equity Interest. The Reorganized Debtors and any party responsible for making distributions pursuant to this Plan (including the Distribution Companies and the Indenture Trustees) shall have no obligation to recognize any transfer of any Claim or Equity Interest occurring after the Distribution Record Date. The Reorganized Debtors and any party responsible for making distributions pursuant to
this Plan (including the Distribution Companies and the Indenture Trustees) shall instead be authorized and entitled to recognize and deal for all purposes under the Plan with only those record holders stated on the Claims register as of the close of business on the Distribution Record Date, provided, however, that, notwithstanding anything otherwise to the contrary, the Reorganized Debtors and any party responsible for making distributions pursuant to this Plan shall be authorized, in their sole discretion, to effect any distribution under the Plan through the book-entry transfer facilities of The Depositary Trust Company pursuant to the procedures used for effecting distributions thereunder on the date of such distribution.
8.19. Allocation of Plan Distributions Between Principal and Interest. To the extent that any Allowed Claim entitled to a distribution under the Plan is comprised of indebtedness and accrued but unpaid interest thereon, such distribution shall be allocated first to the principal amount of the Claim (as determined for federal income tax purposes) and then, to the extent the consideration exceeds the principal amount of the Claim, to accrued but unpaid interest.
8.20. Exemption from Securities Laws. To the extent not previously provided for in a Final Order, the confirmation of this Plan shall constitute a finding that TWC is a successor to a debtor under this Plan for purposes of section 1145 of the Bankruptcy Code and, unless TWC files a registration statement on Form 10 under the Exchange Act that is effective, Rule 12g-3(a) promulgated under the Exchange Act as described below. The issuance of the TWC Class A Common Stock and the distribution of the TWC Class A Common Stock or any securities of TWC as a successor to a debtor that are included in Plan Consideration (including whether directly to holders of Claims against or Equity Interests in the Debtors, or through the Debtors, the Reorganized Debtors, the Contingent Value Vehicle, the Plan Administrator, the Distribution Companies or any other entity) shall be exempt from any securities law registration requirements and any other applicable non-bankruptcy law or regulation under section 1145 of the Bankruptcy Code, and, unless TWC files a registration statement on Form 10 under the Exchange Act that is effective, such shares of TWC Class A Common Stock shall be registered under the Exchange Act pursuant to Rule 12g-3(a) promulgated thereunder. The sale of the Equity Interests in connection with the Comcast Adelphia Acquisition or the TW Expanded Transaction (as applicable) and the issuance of Contingent Value Vehicle Interests pursuant to the Plan (and any distribution of securities in connection with the exercise of conversion or similar rights thereunder) shall also be exempt from any securities law registration requirements and any other applicable non-bankruptcy law or regulation under section 1145 of the Bankruptcy Code.
8.21. Distributions from Reserves Containing Both Cash and TWC Class A Common Stock. With respect to any Debtor Group Reserve under this Plan comprised of both Cash and TWC Class A Common Stock, all distributions shall be made from such reserve so as to as closely as possible provide all holders of Allowed Claims or Allowed Equity Interests in the relevant Class with the same proportion of Cash and TWC Class A Common Stock.
ARTICLE IX.
PROCEDURES FOR ESTIMATION OF ALLOWABLE CLAIMS, TREATMENT OF DISPUTED CLAIMS AND ESTABLISHING OF RESERVES
9.01. Disputed Claims; Objections to Administrative Expense Claims and Claims.
(a) No Distributions Pending Allowance. Except as otherwise expressly set forth herein, if any portion of a Claim or Equity Interest is Disputed, no payment or distribution provided hereunder shall be made on account of such Claim or Equity Interest unless and until such Disputed Claim becomes an Allowed Claim or such Disputed Equity Interest becomes an Allowed Equity Interest.
(b) Century-ML JV Claims. For the avoidance of doubt, all Century-ML JV Claims are Disputed Claims. No distributions shall be made on account of any Century-ML JV Claim unless and until such Claim is liquidated and becomes an Allowed Claim.
(c) Post-Effective Date Objections. The Plan Administrator shall be entitled to object to Administrative Expense Claims, Claims and Equity Interests. Any objections to Claims or Equity Interests shall be filed and served on or before the later of (i) sixty (60) days after the Effective Date, and (ii) such date as may be fixed by the Bankruptcy Court, whether fixed before or after the date specified in clause (i) above (such later date, the “Claims Objection Deadline”). Except as set forth in (d) below, all objections shall be litigated to Final Order; provided, however, that the Debtors, Reorganized Debtors and Plan Administrator (as applicable) (within such parameters as may be established by the Reorganized Debtors) shall have the authority to file, settle, compromise or withdraw any objections without Bankruptcy Court approval.
(d) Settlement of Disputed Claims. On and after the Effective Date, the Plan Administrator shall have the authority to compromise, settle, otherwise resolve, or withdraw any objections to Administrative Expense Claims and compromise, settle, or otherwise resolve Disputed Administrative Expense Claims without approval of the Bankruptcy Court, provided, however, that the Plan Administrator shall not settle any Disputed Administrative Expense Claim in excess of $5,000,000 without prior approval of such settlement by the Bankruptcy Court.
(e) Distributions on Subsequently Allowed Claims. Any holder of a Disputed Claim whose Claim is subsequently Allowed shall receive a distribution on the next Periodic Distribution Date to the extent that there is sufficient Plan Consideration remaining for distribution in respect of such claim; provided, that if a Disputed Claims is Allowed after the twentieth (20th) day prior to the next Periodic Distribution Date shall receive its distribution on the next succeeding Periodic Distribution Date following such Periodic Distribution Date.
(f) Disputed Claims and Debtor Group Reserves.
(i) From and after the Effective Date, except to the extent Plan Consideration is held in the Reserved Cash or an Escrow Account, for the benefit
of the holders of Disputed Claims in each Debtor Group, the applicable Distribution Company shall reserve and hold in escrow in a Notes/Trade Distribution Reserve, Other Unsecured Distribution Reserve or Existing Securities Law Claim Reserve, as applicable, Plan Consideration, and any dividends, gains or income attributable thereto.
(ii) Any dividends, gains or income paid in Cash on account of Plan Consideration reserved for the benefit of holders of Disputed Claims shall be invested in Permitted Investments for the benefit of such holders, pending determination of their entitlement thereto under the terms of the Plan.
9.02. Estimation of Claims. An Estimation Order shall be used to calculate and fix distributions to holders of Allowed Claims and to establish the amounts of the respective Debtor Group Reserves, Other Unsecured Distribution Reserves, Existing Securities Law Claim Reserves, taking into account in each case the amount of Plan Consideration to be allocated to such reserves to the extent Plan Consideration is released from the Transaction Escrows in accordance with their terms. The Debtors also shall be entitled to seek an Estimation Order with respect to a Claim regardless of whether the Debtors or the Reorganized Debtors previously objected to any Claim to be estimated thereunder, and the Bankruptcy Court will retain jurisdiction to estimate any Claim at any time during litigation concerning any objection to any Claim, including during the pendency of any appeal relating to any such objection. In the event that the Bankruptcy Court estimates any contingent, unliquidated or Disputed Claim, the estimated amount may, as determined by the Bankruptcy Court, constitute either (a) the Allowed amount of such Claim, (b) a maximum limitation on such Claim, or (c) in the event such Claim is estimated in connection with the estimation of other Claims within the same Class, a maximum limitation on the aggregate amount of Allowed Claims within such Class; provided, however, that if the estimate constitutes the maximum limitation on a Claim, or a Class of Claims, as applicable, the Debtors or the Reorganized Debtors, as the case may be, may elect to pursue supplemental proceedings to object to any ultimate allowance of any such Claim. All of the aforementioned Claim objection, estimation and resolution procedures are cumulative and not necessarily exclusive of one another.
9.03. Funding of Reserves.
(a) General. On the Effective Date:
(i) the Reserved Cash, the Prepetition Tax Reserve, and the Postpetition Tax Reserves shall be funded with Cash, and the Debtor Group Reserves, the Inter-Creditor Dispute Holdback shall be funded with Cash and/or TWC Class A Common Stock, as provided herein, and transferred as follows:
(A) the Century-TCI Debtor Group Reserve shall be transferred to the Century-TCI Distribution Company;
(B) the Parnassos Debtor Group Reserves shall be transferred to the Parnassos Distribution Companies;
(C) all other reserves funds and holdbacks provided for in this paragraph (i) shall be transferred to the Distribution Company;
(ii) Pursuant to the Purchase Agreements:
(A) the Transaction Escrows shall be funded by the Buyers and held and maintained by the escrow agent thereunder; and
(B) any other reserves or escrows established under the Purchase Agreements shall be established and maintained as mutually determined by the Buyers and ACC;
(iii) Reorganized ACC shall issue 100 new shares of Common Stock (“New ACC Common Stock”) to the Distribution Company, to be held in the ACC Notes/Trade Distribution Reserve;
(iv) the Litigation Funds shall be funded with Cash and transferred as provided in Section 7.03; and
(v) the Puerto Rico Liquidating Trust shall be established through the execution of the Puerto Rico Liquidating Trust Agreement, the Puerto Rico Trust interests shall be issued in respect of the claims in Classes ARA-Notes, ARA-Trade, ARA-Uns and ARA-ESL in accordance with this Plan and the Puerto Rico Liquidating Trust Agreement, and all assets (including Equity Interests) held by Century Communications Corporation (other than its interest in Century/ML Cable Venture) shall be distributed to Arahova Communications, Inc., as the Debtor which is the holder of the Equity Interests in Century Communications Corporation, and the stock of Century Communications Corporation shall be transferred to the Puerto Rico Liquidating Trust. Unless the IRS or a court of competent jurisdiction requires a different treatment, for federal income tax purposes and, to the extent permitted by applicable law, for state and local income tax purposes, all Persons (including the Debtors, the trustee of the Puerto Rico Liquidating Trust and holders of Puerto Rico Trust Interests) shall (i) treat the holders of Puerto Rico Trust Interests as the grantors and deemed owners of the Puerto Rico Liquidating Trust, (ii) treat the assets transferred to the Puerto Rico Liquidating Trust as distributed by the Debtors to the holders of Puerto Rico Trust Interests and as transferred by them to the Puerto Rico Liquidating Trust and (iii) report the value of such assets consistently with the valuations provided by the Debtors. The Puerto Rico Liquidating Trust shall be dissolved upon the earlier of (i) the distribution of all assets to the holders of Puerto Rico Liquidating Trust Interests or (ii) five years from the Effective Date, except that the Bankruptcy Court may approve an extension for a finite term within six months after such five year anniversary upon a finding that such extension is necessary based on the particular facts and circumstances.
(b) Release of Reserves other than Debtor Group Reserves and Receipt of Net Proceeds of Sale. Upon either (x) both (I) the determination of the Plan Administrator
that some or all of the Reserved Cash, the Prepetition Tax Reserve, or the Postpetition Tax Reserves, is no longer necessary to be held as a reserve and (II) the approval of the Bankruptcy Court, (y) the release of some or all of the Transaction Escrow, or any other escrow or reserve established under the Purchase Agreements, to the applicable Distribution Company or (z) receipt of net proceeds from the sale of Excluded Assets, Non-Transferred MCE Systems (after giving effect to any deposits required to be made to the Transaction Escrows or any other escrow or reserves established under the Purchase Agreements in connection with such sale) or other assets of Reorganized ACC or any of its subsidiaries, other than Purchased Assets (together with (x) and (y), the “Delayed Consideration”), then such Delayed Consideration shall be applied as follows:
(i) if the Inter-Creditor Dispute Holdback was not funded solely with Plan Consideration to the Inter-Creditor Dispute Holdback Amount on the Effective Date, then the Delayed Consideration shall first be used to fund such holdback pursuant to Section 9.04(a) hereof;
(ii) any Delayed Consideration consisting of Cash (but not any TWC Class A Common Stock, dividends paid with respect to such stock, and any earnings on such dividends and such earnings) shall be added to the Reserved Cash if the Plan Administrator reasonably determines that the Reserved Cash is not reasonably likely to be sufficient for the purposes for which it is held, with any excess applied such that;
(iii) any Delayed Consideration consisting of Cash (but not any TWC Class A Common Stock, dividends paid with respect to such stock, and any earnings on such dividends and such earnings) shall be added to the Postpetition Tax Reserve, if the Plan Administrator reasonably determines that the Postpetition Tax Reserve is not reasonably likely to be sufficient for the purposes for which it is held, with any excess applied such that;
(iv) any Delayed Consideration consisting of Cash (but not any TWC Class A Common Stock, dividends paid with respect to such stock, and any earnings on such dividends and such earnings) shall be added to the Prepetition Tax Reserve if the Plan Administrator reasonably determines that the Prepetition Tax Reserve is not reasonably likely to be sufficient for the purposes for which it is held, with any excess applied such that;
(v) if (x) any Delayed Consideration attributable to a particular Debtor Group (the “Shorted Debtor Group”) has previously been applied as provided in clauses (i), (ii), (iii) or (iv) (the “Applied Amount”), then (y) with respect to the Delayed Consideration attributable to a Debtor Group other than the Shorted Debtor Group, an amount equal to the product of the Applied Amount and a fraction the numerator of which is the Debtor Group Maximum Value of such Debtor Group and the Denominator of which is the Debtor Group Maximum Value of all Debtor Groups shall be deemed attributable to the Shorted Debtor Group and applied as provided in the succeeding paragraph (vi); solely for purposes of Section 9.03(b), the Debtor Group Maximum Value of the Holding
Company Debtor Group shall be the amount calculated pursuant to paragraph (1)(b) of the definition of the term Allocable Portion for Classes ACC-Trade, ACC-SnrNotes, and ACC-Uns;
(vi) any remaining Delayed Consideration that is attributable to a particular Debtor Group (the “DC Debtor Group”) shall be deposited in the Debtor Group Reserve of the DC Debtor Group in accordance with the relative priority of the Claims against the DC Debtor Group corresponding to the Debtor Group Reserves, and in the case of Debtor Group Reserves corresponding to pari passu Claims, in proportion to the Shortfall in such Debtor Group Reserves (and if there is no Shortfall, such released reserves or net proceeds shall be deemed to be an Excess and reallocated as provided in Section 9.03(e) hereof); provided, however, that the Debtor Group Maximum Value Limitation shall not apply in the case of net proceeds of a sale of Excluded Assets or other assets of Reorganized ACC and its subsidiaries that are not Non-Transferred MCE Systems; provided further, however, that if a DC Debtor Group has waived its right to Delayed Consideration pursuant to an Inter-Creditor Dispute Resolution, then the Delayed Consideration otherwise to be deposited in such Debtor Group’s Debtor Group Reserves shall instead be deposited in the Holding Company Debtor Group Reserve;
(vii) any remaining Delayed Consideration shall be allocated among the Shortfall Debtor Groups in proportion to the Debtor Group Maximum Value of each Shortfall Debtor Group and all of its consolidated subsidiaries as set forth on the initial schedule of Debtor Group Maximum Value; provided, however, that:
(A) in calculating the allocation to any Shortfall Debtor Group (including the ACC Ops Debtor Group and the Holding Company Debtor Group), the Debtor Group Maximum Value of any subsidiary Debtor Group that is itself a Shortfall Debtor Group shall be excluded;
(B) the Debtor Group Maximum Value Limitation shall not apply in the case of net proceeds of sale of Excluded Assets or other assets of Reorganized ACC and its subsidiaries that are not Delayed Transfer Assets or Non-Transferred MCE Systems;
(C) if upon the release of a Transaction Escrow, either (I) there is not released a portion of the Transaction Escrow scheduled for release on such date as a result of the assertion by the Buyers of a claim for indemnification attributable to a particular Debtor Group, or (II) such released Transaction Escrow is attributable to one or more Debtor Groups, then the allocation of such released Transaction Escrow shall give effect to such assertion or attribution;
(viii) any remaining Delayed Consideration shall be added to the Holding Company Debtor Group Reserves.
(ix) Notwithstanding the foregoing, if Delayed Consideration would otherwise be allocated to the Debtor Group Reserve of a Debtor Group which is subject to an Inter-Creditor Dispute Holdback that is fully funded with Plan Consideration and as to which an Inter-Creditor Dispute Resolution has not yet occurred pursuant to clauses (v), (vi), (vii) or (viii) above, then in lieu of such allocation, such Delayed Consideration shall be allocated to the Holding Company Debtor Group Reserves.
(c) Make-Up from Debtor Group Reserve Cash; Payment of Taxes on Reserves, Holdbacks and Funds.
(i) To the extent the Cash included in the Reserved Cash, Prepetition Tax Reserve or Postpetition Tax Reserve is insufficient for its purpose (including, without limitation, the purposes set forth in Section 8.04(a)), the Plan Administrator may withdraw such amount of Cash (other than Cash attributable to dividends paid on TWC Class A Common Stock, and any earnings on such dividends or earnings) from the Debtor Group Reserves to cover such deficiency as may be provided by one or more Final Orders of the Bankruptcy Court.
(ii) To the extent the Debtor Group Reserves, the Inter-Creditor Dispute Holdback, or the Litigation Funds or any other reserve, fund or escrow established pursuant to the Plan (other than the Transaction Escrows or any other reserves or escrows established under the Purchase Agreements, which shall be treated as provided in the Purchase Agreements) incur tax liabilities, the Plan Administrator (or in the case of the Litigation Funds, the CVV Trustee) may withdraw Cash (or if there is no Cash, other assets) from such respective reserve, holdback or fund to cover the payment of such tax liabilities.
(d) Clawback of Deficiency in Debtor Group Reserves. Not less than three Business Days nor more than ten Business Days prior to each Distribution Date, the Plan Administrator shall calculate the Deemed Value of each Debtor Group Reserve. If the Deemed Value of a Debtor Group Reserve is less than (a “Deficiency”) the excess of (x) the amount calculated pursuant to clause (1)(b) or (2)(b) (as applicable) of the definition of Allocable Portion with respect to such Debtor Group Reserve (a “Shortfall Debtor Group”), over (y) the Deemed Value of all prior distributions under the Plan (including distributions from the Contingent Value Vehicle and the Puerto Rico Liquidating Trust) to the Classes of Claims entitled to distributions from such Debtor Group Reserve:
(i) with respect to a Notes/Trade Distribution Reserve or Subsidiary Other Unsecured Distribution Reserve, if there is any Plan Consideration remaining in the Existing Securities Law Claim Reserve corresponding to such Shortfall Debtor Group then there shall be transferred to the Notes/Trade Distribution Reserve or the Subsidiary Other Unsecured Distribution Reserve of the Shortfall Debtor Group (as applicable), from the Existing Securities Law
Claim Reserve corresponding to such Shortfall Debtor Group, an amount of Plan Consideration with a Deemed Value equal to such Deficiency (to the extent available) or, if less than such Deficiency, the maximum amount available for transfer to such Shortfall Debtor Group hereunder;
(ii) with respect to the Olympus Parent Debtor Group, if the Deemed Value of the Plan Consideration transferred pursuant to clause (i) is less than the Deficiency (or if the Deficiency is in the Existing Securities Law Claim Reserve), then there shall be transferred to the Notes/Trade Distribution Reserve or Other Unsecured Distribution Reserve (or Existing Securities Law Claim Reserve, as applicable), from the Olympus Parent FPL Note Distribution Reserve, an amount of Plan Consideration with a Deemed Value equal to such Deficiency (to the extent available) or, if less than such Deficiency, the maximum amount available for transfer hereunder;
(iii) if the Deemed Value of the Plan Consideration transferred pursuant to clause (i) or (ii) is less than the Deficiency (or if there is no Existing Securities Law Claim Reserve corresponding to such Shortfall Debtor Group, or the Deficiency is in an Existing Securities Law Claim Reserve or in the Olympus Parent FPL Note Distribution Reserve), then there shall be transferred to the Notes/Trade Distribution Reserve or Other Unsecured Distribution Reserve (or Existing Securities Law Claim Reserve, as applicable) of the Shortfall Debtor Group, on a pro rata basis from the Debtor Group Reserves of the direct Parent Debtor Group of such Shortfall Debtor Group, an amount of Plan Consideration with a Deemed Value equal to such Deficiency (to the extent available) or, to the extent less than such Deficiency, the maximum amount available to be transferred to such Shortfall Debtor Group hereunder;
(iv) if the Deemed Value of the Plan Consideration transferred pursuant to clause (iii) is less than the Deficiency, then there shall be transferred to the Notes/Trade Distribution Reserve or Other Unsecured Distribution Reserve (or Existing Securities Law Claim Reserve or Olympus Parent FPL Note Distribution Reserve, if applicable) of the Shortfall Debtor Group, on a pro rata basis from the Debtor Group Reserves of any indirect Parent Debtor Group of such Shortfall Debtor Group, Plan Consideration with a Deemed Value equal to such unsatisfied Deficiency;
(v) a Shortfall Debtor Group shall not be entitled to a transfer into its Debtor Group Reserves pursuant to this Section 9.03(d) to the extent that such transfer would violate the Debtor Group Maximum Value Limitation; provided, however, in the case of the Olympus Parent FPL Note Distribution Reserve, no such transfer would be made if the Olympus Parent FPL Note Distribution Reserve would receive more than one-third of the equity value of the Olympus Parent Debtor Group; and
(vi) Any transfer of a Shortfall pursuant to clauses (i) through (iv) shall first be made in the form of Cash before any transfer in the form of TWC Class A Common Stock is made.
(e) Distribution of Excess in Debtor Group Reserves. Prior to each Distribution Date, if the Deemed Value of a Debtor Group Reserve of any Debtor Group exceeds the excess of (x) the amount calculated pursuant to clause (1)(b) or (2)(b) (as applicable) of the definition of Allocable Portion with respect to such Debtor Group (an “Excess Reserve Debtor Group”) over (y) the Deemed Value of all prior distributions under the Plan (including distributions from the Contingent Value Vehicle and the Puerto Rico Liquidating Trust) to the Classes of Claims entitled to distributions from such Debtor Group Reserve (an “Excess”), then:
(i) such Excess shall first be distributed to the holders of Allowed Claims in such Excess Reserve Debtor Group to the extent that they have received distributions with a Deemed Value of less than the Allowed amount of their Claims, such distribution based on the relative priority of Classes of Claims in the Excess Reserve Debtor Group;
(ii) if after giving effect to the distribution in clause (i) any Excess remains, then
(A) if the Debtor Group Reserve holding such remaining Excess is an Other Unsecured Distribution Reserve, such remaining Excess shall be transferred to the Notes/Trade Distribution Reserve corresponding to such Debtor Group; or
(B) if the Debtor Group Reserve holding such remaining Excess is a Notes/Trade Distribution Reserve, such remaining Excess shall be transferred to the Other Unsecured Distribution Reserve corresponding to such Debtor Group; and
(iii) if after giving effect to the distribution in clause (ii) any Excess remains, the remaining Excess shall be transferred to the Existing Securities Law Claim Reserve corresponding to such Debtor Group, if any; and
(iv) in the case of the Olympus Parent Debtor Group, if after giving effect to the distribution in clause (iii) any Excess remains, one-third of the remaining Excess shall be transferred to the Olympus Parent FPL Note Distribution Reserve; and
(v) if after giving effect to the distribution in clause (iii) or (iv), as applicable, any Excess remains or if or there is no Existing Securities Law Claim Reserve corresponding to such Debtor Group, then the remaining Excess shall be transferred to the Debtor Group Reserves of the Parent Debtor Group, if any, of the Excess Reserve Debtor Group;
(vi) if the Holding Company Debtor Group is the Excess Reserve Debtor Group, then the Excess shall be transferred to the Contingent Value Vehicle at such time as (A) approved by the Bankruptcy Court, (B) there exist no Disputed Claims, or (C) the amount of the reserves in the Holding Company Debtors Group equals the claimed amount of all Disputed Claims.
(vii) Any transfer of Excess pursuant to clauses (ii) through (vi) shall first be made in the form of TWC Class A Common Stock before any transfer in the form of Cash is made.
(f) Effect of Intercompany Claims. To the extent required in connection with the elimination of Debtors or Debtor Groups from the Plan pursuant to Section 8.02 hereof, there shall be established (a) with respect to each Debtor Group Reserve a joint and several obligation (with the other Debtor Group Reserves corresponding to such Debtor Group) to the Funding Company Debtor Group Reserve equal to any Intercompany Claim not deemed satisfied in connection with the calculation of the Debtor Group Reserves, and (b) from the Funding Company Debtor Group to each Debtor Group Reserve equal to any Intercompany Claim not deemed satisfied in connection with the calculation of the Debtor Group Reserves. The amount and priority of such claims shall be determined by the Debtors and subject to Bankruptcy Court approval upon notice to parties in interest.
(g) No Segregation of Plan Currency. The Distribution Companies shall not be obligated to physically segregate and maintain separate accounts for reserves, except that (i) the Distribution Company shall physically separate and maintain separate accounts for the Cash Funded Reserves and (ii) the Transaction Escrows shall be maintained in accordance with the Sale Transaction Documents. Reserves may be maintained in the form of bookkeeping entries or accounting methodologies, which may be revised from time to time, sufficient to enable the Distribution Companies to determine the amount of Plan Consideration required on account of reserves hereunder and amounts to be distributed to parties in interest.
9.04. Funding and Release of Holdbacks.
(a) If the Inter-Creditor Dispute Holdback is not fully funded with Plan Consideration on the Effective Date, then upon the availability of any Delayed Consideration pursuant to Section 9.03(b)(i), such Delayed Consideration shall be added pro rata to the holdbacks comprising the Inter-Creditor Dispute Holdback based on the Deemed Value of such other property until the Deemed Value of the Plan Consideration comprising the Inter-Creditor Dispute Holdback, plus all releases therefrom, equals the Inter-Creditor Dispute Holdback Amount.
(b) The Inter-Creditor Dispute Holdback shall be held in reserve by the Distribution Company pending the Inter-Creditor Dispute Resolution. No distribution of the Inter-Creditor Dispute Holdback shall be made until the relevant Inter-Creditor Dispute Resolution. Any distribution from the Inter-Creditor Dispute Holdback shall be
made directly to the applicable Debtor Group Reserve, and shall not be subject to Section 9.03(b).
(c) For purposes of calculating the Inter-Creditor Dispute Holdback only, the Puerto Rico Liquidating Trust Interests shall have a Deemed Value of $0 or such other amount as determined by the Bankruptcy Court. To the extent that the Puerto Rico Liquidating Trust makes one or more distributions to holders of Puerto Rico Liquidating Trust Interests in excess of the Deemed Value determined pursuant to the preceding sentence while the Inter-Creditor Dispute Holdback is in effect, the Inter-Creditor Dispute Holdback shall be reduced by the Deemed Value of the amount of such excess and the Plan Administrator shall transfer a corresponding amount of Plan Consideration to the Debtor Group Reserves of the Holding Company Debtor Group. The Deemed Value of the Puerto Rico Liquidating Trust Interests under this Section shall not be deemed an admission for any purpose.
9.05. Tax Distributions and Treatment of Reserves, Escrows and Holdbacks.
(a) Tax Distributions. The Plan Administrator, the Century-TCI Distribution Company, the Parnassos Distribution Companies and the Distribution Company shall from time to time distribute funds to the Postpetition Tax Reserve from any other reserve, fund or escrow established in connection with the Plan (other than the Transaction Escrows) to pay taxes imposed on the Reorganized Debtors, if any, with respect to income or gains realized by such other reserve, fund or escrow. The Plan Administrator and the Distribution Companies shall pay taxes with respect to income or gains realized by any reserve, fund, holdback or escrow established in connection with the Plan by reserving either (i) Cash held in such reserve, fund, holdback or escrow or (ii) proceeds from sale of a sufficient amount of any other assets held in such reserve, fund, holdback or escrow (other than the Transaction Escrows or any other reserves or escrows established under the Purchase Agreements).
(b) Cash Funded Reserves. For federal income tax purposes, the Debtors intend to treat (i) the Reserved Cash, the Prepetition Tax Reserve and the Postpetition Tax Reserves (the “Cash Funded Reserves”) as one or more grantor trusts, (ii) the Debtors as the grantors and deemed owners of the Cash Funded Reserves, (iii) the cash transferred to the Cash Funded Reserves in connection with the Sale Transaction as received by the Debtors and then contributed by the Debtors to the Cash Funded Reserves.
(c) Debtor Group Reserves, Inter-Creditor Dispute Holdback and Transaction Escrows. For federal income tax purposes, the Debtors intend to treat the Debtor Group Reserves, any Distribution Reserve created with respect to the Equity Interest in a Direct Subsidiary Debtor Group of a Rejecting Debtor Group, the Inter-Creditor Dispute Holdback, the Transaction Escrows, the Litigation Indemnification Fund and any other reserves, holdbacks and escrows established in connection with the Plan for the benefit of holders of Claims and Equity Interests (other than the Cash Funded Reserves) as one or more disputed ownership funds described in the Treasury Regulations Section 1.468B-9, and, to the extent permitted by applicable law, to report consistently for state and local
income tax purposes. If such treatment is not available with respect to any such reserve, holdback or escrow under applicable law in effect for a taxable period, then for federal income tax purposes the Debtors, the Distribution Companies and the Plan Administrator intend to treat such reserve, holdback or escrow in such period as one or more trusts subject to a separate entity tax. For federal income tax purposes, the Debtors intend to treat the cash and TWC Class A Common Stock transferred to such reserves, holdbacks and escrows in connection with the Sale Transactions as received by the Debtors from TW NY or Comcast, as applicable, pursuant to the Sale Transactions and then contributed by the Debtors to such reserves, holdbacks and escrows.
(d) Consistent Reporting. The Reorganized Debtors, the Distribution Companies, the Century-TCI Distribution Company, the Parnassos Distribution Companies, the Plan Administrator, the Contingent Value Vehicle Trustee and holders of Allowed Claims and Equity Interests (in their capacities as such) shall report, for federal income tax purposes, consistently with the Debtors’ treatment of reserves, escrows and holdbacks pursuant to this Section 9.05.
9.06. Personal Injury Claims. All Personal Injury Claims are Disputed Claims. No distributions shall be made on account of any Personal Injury Claim unless and until such Claim is liquidated and becomes an Allowed Claim. Any Personal Injury Claim which has not been liquidated prior to the Effective Date and as to which a proof of claim was timely filed in the Chapter 11 Cases, shall be determined and liquidated in the administrative or judicial tribunal in which it is pending on the Effective Date or, if no action was pending on the Effective Date, in any administrative or judicial tribunal of appropriate jurisdiction. Any Personal Injury Claim determined and liquidated (i) pursuant to a Final Order obtained in accordance with this Section and applicable nonbankruptcy law, (ii) in any alternative dispute resolution or similar proceeding as same may be approved by order of a court of competent jurisdiction or (iii) pursuant to agreement of the parties, shall be deemed, to the extent applicable, an Allowed Other Unsecured Claim of the Debtor Group against which the Personal Injury Claim was brought or an ACC Other Unsecured Claim, as applicable, in such liquidated amount and treated in accordance with the Plan; provided, however, that the Allowed amount of any Personal Injury Claim that also is an Insured Claim shall not exceed the liquidated amount of the Claim less the amount paid by the insurer. Nothing contained in this Section 9.06 shall constitute or be deemed a waiver of any claim, right, or Cause of Action that the Debtors may have against any Person in connection with or arising out of any Personal Injury Claim, including any rights under section 157 of title 28 of the United States Code.
9.07. No Recourse. Nothing in the Plan shall modify any right of a holder of a Claim under section 502(j) of the Bankruptcy Code. Notwithstanding that the Allowed amount of any particular Disputed Claim is reconsidered under the applicable provisions of the Bankruptcy Code and Bankruptcy Rules or is Allowed in an amount for which after application of the payment priorities established by this Plan, or after giving effect to an Estimation Order, there is insufficient consideration to provide a recovery equal to that received by other holders of Allowed Claims in the respective Class or category, no Claim holder shall have recourse to the Distribution Companies, the Debtors, the Reorganized Debtors, the Transferred Joint Venture Entities (other than with respect to Assumed Sale Liabilities), the Buyers (other than Assumed Sale Liabilities), the Creditors’ Committee, the Equity Committee, the Indenture Trustees, the
Plan Administrator, the Contingent Value Vehicle, the Contingent Value Vehicle Trustee or any of their respective professionals, consultants, trustees, officers, directors or members or their successors or assigns, or any of their respective assets or property. THUS, THE BANKRUPTCY COURT’S ENTRY OF AN ESTIMATION ORDER MAY LIMIT THE DISTRIBUTION TO BE MADE ON INDIVIDUAL DISPUTED CLAIMS, REGARDLESS OF THE AMOUNT FINALLY ALLOWED ON ACCOUNT OF SUCH DISPUTED CLAIMS.
9.08. Amendments to Claims. A Claim may be amended prior to the Confirmation Date only as agreed upon by the Debtors and the holder of such Claim, or as otherwise permitted by the Bankruptcy Court, the Bankruptcy Rules or applicable law. After the Confirmation Date except as provided in Section 10.03, a Claim may not be filed or amended without the prior authorization of the Bankruptcy Court. Any such new or amended Claim filed after the Confirmation Date shall be deemed disallowed in full and expunged without any action by the Debtors, the Plan Administrator, the Distribution Companies or the Reorganized Debtors, unless the Claim holder has obtained prior Bankruptcy Court authorization for the filing.
9.09. Setoffs. Except as otherwise provided in the Plan, the Confirmation Order, the Purchase Agreements, or in agreements previously approved by Final Order of the Bankruptcy Court, the Debtors, Reorganized Debtors, and the Reorganized Debtors may, pursuant to section 553 of the Bankruptcy Code or applicable non-bankruptcy law, offset against any Claim or Equity Interest and any distribution to be made on account of such Claim or Equity Interest, any and all of the claims, rights and Causes of Action of any nature that the Debtors or the Reorganized Debtors may hold against the holder of such Claim or Equity Interest; provided, however, that neither the failure to effect such a setoff, the allowance of any Claim or Equity Interest hereunder, any other action or omission of the Debtors or the Reorganized Debtors, nor any provision of this Plan shall constitute a waiver, abandonment or release by the Debtors or the Reorganized Debtors of any such claims, rights and Causes of Action that the Debtors or the Reorganized Debtors may possess against such holder. To the extent the Debtors or the Reorganized Debtors fail to set off against a holder and seek to collect a claim from such holder after a distribution to such holder pursuant to the Plan, the Debtors or the Reorganized Debtors shall be entitled to full recovery on their claim against such creditor.
9.10. Treatment of New ACC Common Stock Held in Debtor Group Reserves. Notwithstanding anything otherwise to the contrary, the New ACC Common Stock deposited and held in the Debtor Group Reserves shall (i) not be included in any calculation of Deemed Value of Plan Consideration made in connection with this Plan and (ii) shall be held in the Debtor Group Reserves and shall not be distributed to (a) any holders of Claims or Equity Interests, or (b) any Shortfall Debtor Group or (c) any recipient of Plan Consideration from an Excess Debtor Group, entitled to receive distributions under this Plan.
ARTICLE X. EXECUTORY CONTRACTS AND UNEXPIRED LEASES
10.01. Assumption, Retention, Assumption and/or Assignment or Rejection.
(a) Assumption or Rejection of Executory Contracts and Unexpired Leases. Pursuant to sections 365(a) and 1123(b)(2) of the Bankruptcy Code, subject to the restrictions and requirements under Sections 5.11(b), (c), (d) and (e) of the Comcast Purchase Agreement and Sections 5.13(b), (c), (d) and (e) of the TW Purchase Agreement (including, if applicable, as modified in connection with the TW Expanded Transaction), as applicable:
(i) the Comcast Contracts shall be Assumed and the TW Contracts shall be Assumed, in each case as of the Effective Date;
(ii) all executory contracts and unexpired leases other than the Comcast Contracts and the TW Contracts shall (consistent with the requirements of the Purchase Agreements) be deemed to be rejected by the Debtors, except for any executory contract or unexpired lease (a) that has been previously assumed and/or assigned pursuant to an order of the Bankruptcy Court entered prior to the Effective Date, (b) as to which a motion for approval of the assumption and/or assignment of such executory contract or unexpired lease has been filed and served prior to the Confirmation Date, or (c) that is specifically designated as a contract or lease to be assumed and/or assigned or retained on Schedule 10.01(a), which Schedule shall be contained in the Plan Supplement;
(iii) notwithstanding anything otherwise herein to the contrary, to the extent consistent with their obligations under the Purchase Agreements, the Debtors reserve the right, on or prior to the Effective Date, to amend Schedule 10.01(a) to delete any executory contract or unexpired lease therefrom or add any executory contract or unexpired lease thereto, in which event such executory contract(s) or unexpired lease(s) shall be deemed to be, as applicable, rejected, assumed and/or assigned or retained. The Debtors shall provide notice of any amendments to Schedule 10.01(a) to the parties to the executory contracts and unexpired leases affected thereby. The listing of a document on Schedule 10.01(a) shall not constitute an admission by the Debtors that such document is an executory contract or an unexpired lease or that the Debtors have any liability thereunder.
(b) Rigas Agreements. Each Rigas Agreement as to which any of the Debtors is a party shall be deemed automatically rejected in accordance with the provisions and requirements of sections 365 and 1123 of the Bankruptcy Code as of the Effective Date, unless such Rigas Agreement (i) shall have been previously assumed by the Debtors by order of the Bankruptcy Court, (ii) is the subject of a motion to assume pending on or before the Effective Date, (iii) is listed on Schedule 10.01(b) as an assumed Rigas Agreement to be filed with the Plan Supplement, (iv) is Assumed, or (v) is otherwise
assumed, retained, assumed and/or assigned pursuant to the terms of this Plan. Notwithstanding anything otherwise to the contrary, this Section 10.01(b) shall not apply to the Adelphia-Rigas Settlement Agreement.
(c) Approval of Assumptions, Retentions and Rejections by Confirmation Order. Entry of the Confirmation Order by the Bankruptcy Court shall constitute approval of the rejections, retentions, assumptions and/or assignments contemplated by this Plan pursuant to sections 365 and 1123 of the Bankruptcy Code. Each executory contract, unexpired lease and Rigas Agreement assumed pursuant to Sections 10.01(a) and 10.01(b) (except for the Comcast Contracts and the TW Contracts) shall vest in and be fully enforceable by the applicable Reorganized Debtor in accordance with its terms, except as modified by the provisions of this Plan, or any order of the Bankruptcy Court authorizing or providing for its assumption or applicable federal law. Each of the Comcast Contracts and the TW Contracts shall be Assumed by, and vest in and be fully enforceable by, the applicable Buyer or Transferred Joint Venture Entity in accordance with its terms. The Debtors reserve the right to file a motion on or before the Confirmation Date to assume or reject, subject to Sections 5.11(b), (c), (d) and (e) of the Comcast Purchase Agreement and Sections 5.13(b), (c), (d) and (e) of the TW Purchase Agreement, any executory contract, unexpired lease or Rigas Agreement.
(d) Scope of Assumed/Retained Agreements. Except to the extent inconsistent with any applicable Sale Transaction Document, each executory contract and unexpired lease that is Assumed, retained, assumed and/or assigned shall include (a) all modifications, amendments, supplements, restatements, or other agreements made directly or indirectly by any agreement, instrument, or other document that in any manner affect such executory contract or unexpired lease and (b) in respect of agreements relating to premises, all executory contracts or unexpired leases appurtenant to the premises, including all easements, licenses, permits, rights, privileges, immunities, options, rights of first refusal, powers, uses, reciprocal easement agreements, and any other interests in real estate or rights in rem related to such premises, unless any of the foregoing agreements has been rejected pursuant to a Final Order of the Bankruptcy Court or is otherwise rejected as a part of this Plan.
10.02. Payments Related to Retention and Assumption of Executory Contracts and Unexpired Leases.
(a) The provisions (if any) of each executory contract or unexpired lease to be retained, assumed and/or assigned under this Plan which is or may be in default shall be satisfied by payment of a Cure and/or performance of a non-monetary obligation. If there is a dispute regarding (x) the nature or the amount of any Cure or non-monetary obligation, (y) the ability of the Reorganized Debtors or any assignee to provide “adequate assurance of future performance” (within the meaning of section 365 of the Bankruptcy Code) under the contract or lease to be retained, assumed and/or assigned, or (z) any other matter pertaining to retention, assumption and/or assignment, Cure and/or resolution shall occur as soon as practicable following agreement of the parties or the entry of a Final Order resolving the dispute.
(b) Notwithstanding anything otherwise to the contrary, (i) nothing in this Plan constitutes or will be deemed to constitute a waiver or relinquishment of any right of the Debtors, Reorganized Debtors, Transferred Joint Venture Entities or Buyers to object to any Cure and/or proposed cure of non-monetary defaults and the Debtors, Reorganized Debtors, Transferred Joint Venture Entities and Buyers shall retain, reserve and be entitled to assert any objection or legal or equitable defense to any Cure or alleged default regarding non-monetary performance, and (ii) if a dispute relating to a Cure or alleged default regarding non-monetary performance remains unresolved or is resolved in a manner that the Debtors or Reorganized Debtors determine, in their sole discretion, does not promote the interests of the Debtors or the Reorganized Debtors (subject to any requirements and restrictions of the Purchase Agreements), then the Debtors, Reorganized Debtors or the Transferred Joint Venture Entities shall be entitled to reject the executory contract, unexpired lease or Rigas Agreement to which such dispute relates. Notwithstanding anything to the contrary, nothing in this Plan expands, limits or otherwise alters any obligations or liabilities of any Buyer or any Debtor with respect to Cure costs under the applicable Purchase Agreement.
(c) Each Buyer shall be entitled to assume and maintain control, on behalf of the Debtors, Reorganized Debtors or Transferred Joint Venture Entities, as the case may be, the litigation and settlement of any dispute to the extent provided in Section 5.11(d) of the Comcast Purchase Agreement and Section 5.13(d) of the TW Purchase Agreement.
(d) Except to the extent that different treatment has been agreed to by the non-Debtor party or parties to any executory contract or unexpired lease to be Assumed, retained, assumed and/or assigned pursuant to this Plan, no later than thirty (30) days prior to the date of the commencement of the Confirmation Hearing, the Debtors shall serve a notice (“Cure Notice”) on each non-Debtor party to an executory contract or unexpired lease that the Debtors may, at any time, seek to retain, assume and/or assign. Pursuant to the Bankruptcy Court’s order dated October 14, 2005 approving cure procedures (the “Cure Procedure Order”), the Cure Notice(s) will inform the counter-party to an executory contract or unexpired lease to be Assumed, retained, assumed and/or assigned of the Cure, and/or, to the extent required under the Bankruptcy Code, non-monetary performance, required to cure defaults under the applicable agreement. The non-Debtor parties to such executory contracts or unexpired leases shall have thirty (30) calendar days following service of the applicable Cure Notice to object (“Cure Objection”) in writing to (i) the Cure or cure of non-monetary defaults proposed by the Debtors and to propose an alternative Cure or cure of non-monetary defaults and/or (ii) the proposed retention, assumption and/or assignment. In the event that no Cure Objection is timely filed, the applicable party shall be deemed to have consented to the proposed retention, assumption and/or assignment and the Cure and/or non-monetary cure proposed by the Debtors and shall be forever enjoined and barred from seeking any additional amount on account of the Debtors’ cure obligations under section 365 of the Bankruptcy Code or otherwise from the Debtors, the Reorganized Debtors, the Transferred Joint Venture Entities, the Buyers and any assignee of the Debtors or the Buyers. If a Cure Objection is timely filed, the Bankruptcy Court shall hold a hearing to determine any Cure Objection not settled by the parties. In the event that a Cure Objection relating solely to the amount of a Cure remains unresolved on the Effective
Date, notwithstanding the pendency of such Cure Objection the Debtors shall be entitled to consummate the retention, assumption and/or assignment of the executory contract or unexpired lease to which such Cure Objection relates if the Debtors deposit in escrow an amount with respect to such executory contract or unexpired lease equal to (x) the amount asserted as a Cure amount by the party or parties to the executory contracts or unexpired leases to be assumed and/or assigned or retained, or (y) such lesser amount (i) agreed to by the Debtors and the party or parties to such executory contracts or unexpired leases or (ii) determined by the Bankruptcy Court. If no timely Cure Objection is filed, upon the Effective Date, the Reorganized Debtors, the Transferred Joint Venture Entities, the Buyers and any assignee of the Debtors shall enjoy all of the rights and benefits under each executory contract or unexpired lease to be Assumed, retained, assumed and/or assigned, without the necessity of obtaining any party’s written consent to the retention, assumption and/or assignment of such rights and benefits, and each such party shall be deemed to have waived any right to object, consent, condition or otherwise restrict any such retention, assumption and/or assignment. Notwithstanding anything otherwise to the contrary, at all times through the date that is the later of (x) the Effective Date and (y) five Business Days after the Bankruptcy Court enters an order resolving and fixing the amount of a disputed Cure amount, or resolving any other dispute relating to a proposed retention, assumption and/or assignment of a contract or lease, the Debtors and Reorganized ACC shall be authorized to reject such executory contract or unexpired lease by notice to the non-debtor party to such executory contract or unexpired lease.
(e) Except as otherwise expressly provided by order of the Bankruptcy Court, the Assumption of the Comcast Contracts and TW Contracts pursuant to this Plan shall not be limited or prevented by any restriction on assignment or requirement to obtain the consent of any Person other than the Debtors or the Bankruptcy Court including, without limitation, under any Franchise agreement, executory contract, pole attachment agreement or other agreement (whether entered into before or after the Commencement Date) between any Debtor and any third party, or any law (including the common law), statute, rule or any other regulation otherwise applicable to any Debtor.
10.03. Rejection Damages Bar Date. If the rejection by the Debtors under this Plan of an unexpired lease or executory contract results in a Claim, then such Claim shall be forever barred and shall not be enforceable against the Debtors, the Reorganized Debtors, the Transferred Joint Venture Entities or such entities’ properties unless a proof of claim is filed with the Bankruptcy Court and served upon counsel to the Debtors within 30 days after service of the earlier of (a) notice of the entry of the Confirmation Order or (b) other notice that the executory contract or unexpired lease has been rejected.
10.04. Corporate Reimbursement Obligations.
(a) Any prepetition indemnification obligations of the Debtors pursuant to their corporate charters and by-laws shall be limited to the reimbursement of legal fees and expenses for Persons other than Excluded Individuals (which for Persons other than Indemnified Persons shall not exceed $27 million), and shall continue as obligations of the Reorganized Debtors and not of the Transferred Joint Venture Entities. Other than as set forth in the preceding sentence, nothing herein shall be deemed to be an assumption of any other prepetition indemnification
obligation and any such obligations shall be rejected pursuant to the Plan; provided, however that nothing herein shall prejudice or otherwise affect any right available to current or former officers and directors of the Debtors (except for Excluded Individuals) under applicable insurance policies; provided further, however, that (i) to the extent persons other than Indemnified Persons shall have received proceeds of applicable insurance policies, the Debtors’ obligations pursuant to the first sentence of Section 10.04(a) shall be reduced dollar for dollar, and (ii) to the extent that the Debtors shall have made payments to persons other than Indemnified Persons pursuant to the first sentence of Section 10.04(a) the Debtors shall be assigned (and subrogated to) an equal dollar claim against such insurance policies.
(b) From and after the Effective Date, the Reorganized Debtors shall, to the maximum extent permitted by applicable law, indemnify and hold harmless the Indemnified Persons for any action or inaction, taken or omitted to be taken, in good faith by the Indemnified Persons in connection with the conduct of the Chapter 11 Cases, including the formulation, negotiation, balloting, and implementation of this Plan. To the maximum extent permitted by applicable law, the Reorganized Debtors shall be obligated to advance the costs of defense to any Indemnified Person who was a director or officer of a Debtor in connection with any Cause of Action relating to the Chapter 11 Cases, and shall have the right, but not the obligation to advance the costs of defense to other Indemnified Persons. Any costs or expenses incurred by an Indemnified Person in successfully enforcing the provisions of this Section 10.04(b) shall also be indemnified by the Debtors to such Indemnified Person.
10.05. Retiree Benefits. On and after the Effective Date, pursuant to section 1129(a)(13) of the Bankruptcy Code, the Reorganized Debtors shall continue to pay all retiree benefits of the Debtors (within the meaning of section 1114 of the Bankruptcy Code), if any, at the level established in accordance with section 1114 of the Bankruptcy Code, at any time prior to the Confirmation Date, for the duration of the period for which the Debtors had obligated themselves to provide such benefits (except with respect to any Excluded Individuals).
ARTICLE XI. PROVISIONS REGARDING DISTRIBUTION COMPANY AND PLAN ADMINISTRATOR
11.01. Distribution Company and the Plan Administrator. Except with respect to the Transferred Joint Venture Entities:
(a) Corporate Governance. On the Effective Date, the existing officers and members of the Boards of Directors of the Debtors will resign or be terminated and the Plan Administrator (or individuals designated by the Plan Administrator) will be appointed, without any further action being required, as the sole officer and director of the Distribution Companies and the other Debtors (or, with respect to non-corporate Debtors, be appointed to equivalent positions of authority). The executive officers and directors of TWC after the Effective Date shall be disclosed no later than 10 days prior to the date of the Confirmation Hearing.
(b) Plan Administrator. From and after the Effective Date, the Plan and the Reorganized Debtors will be administered and actions will be taken in the name of the Reorganized Debtors through the Plan Administrator and the Distribution Companies. Subject to the terms and limitations contained in the Plan Administrator Agreement and this Plan, the Plan Administrator shall act for the Reorganized Debtors in a fiduciary capacity as applicable to a board of directors, and shall be entitled to exercise the rights and powers available to the Debtors or Reorganized Debtors hereunder.
(i) Powers and Duties. From and after the Effective Date, the duties and powers of the Plan Administrator shall include the following:
(A) to exercise all power and authority that may be exercised, commence all proceedings that may be commenced and take all actions that may be taken, by any officer, director or shareholder of the Distribution Companies or the Reorganized Debtors with like effect as if authorized, exercised and taken by unanimous action of such officers, directors and shareholders, including the amendment of the certificate of incorporation and by-laws (or equivalent organizational documents) of the Distribution Companies and the dissolution of Distribution Companies;
(B) to continue to maintain accounts, make distributions and subject to Section 9.03, take other actions consistent with the Plan, including the establishment, re-evaluation, adjustment and maintenance of appropriate reserves or escrows required or advisable in connection with the Plan;
(C) to monitor and advise the Distribution Companies, the Reorganized Debtors and the Contingent Value Vehicle with regard to the collection and, if necessary, liquidation, of all assets of the Reorganized Debtors;
(D) to compromise or settle any Claims (disputed or otherwise);
(E) to make decisions regarding the retention or engagement of professionals, employees and consultants;
(F) to pursue or defend Causes of Action (other than the Designated Litigation);
(G) to take such steps to safeguard the Distribution Companies’ funds or investments as the Plan Administrator, in his/her discretion, deems prudent;
(H) to provide written reports on a quarterly basis or such other information as may be reasonably requested by the Statutory Committees, cash receipts and disbursements, asset sales or other dispositions, Claims reconciliation and Plan distributions;
(I) to take all other actions not inconsistent with the provisions of this Plan which the Plan Administrator deems reasonably necessary or desirable in connection with satisfying any obligations of ACC under the Purchase Agreements;
(J) to operate and manage the Excluded Assets;
(K) to manage and administer indemnification claims under the Purchase Agreements;
(L) to manage and administer the TWC Class A Common Stock (other than the TWC Class A Common Stock held in the Transaction Escrows until such time, if any, as such stock is released to the Reorganized Debtors in accordance with the terms of the Transaction Escrow Agreements) pending its distribution in accordance with this Plan;
(M) to represent the Reorganized Debtors in transactions with the Contingent Value Vehicle;
(N) to take all other actions not inconsistent with the provisions of this Plan which the Plan Administrator deems reasonably necessary or desirable with respect to administering the Plan;
(O) to pay fees incurred pursuant to 28 U.S.C. § 1930(a)(6) and to file with the Bankruptcy Court and serve on the United States Trustee monthly financial reports until such time as a final decree is entered closing these Cases or the Cases are converted or dismissed, or the Bankruptcy Court orders otherwise;
(P) to take all actions required under the Purchase Agreements, and to take all actions necessary or appropriate to enforce the Debtors’ rights under the Sale Transaction Documents; and
(Q) to make all determinations on behalf of ACC under the Purchase Agreements including with respect to any purchase price adjustments pursuant to Section 2.8(f) of the Comcast Purchase Agreement or Section 2.6(f) of the TW Purchase Agreement, indemnification pursuant to Article VII of each Purchase Agreement, and granting any waivers or consents.
(ii) Resignation, Death or Removal. The Plan Administrator may resign at any time upon written notice to the Reorganized Debtors and the Bankruptcy Court, and any party in interest may apply to the Bankruptcy Court at any time to remove the Plan Administrator upon a showing of cause or that such removal is otherwise appropriate. In the event of any such resignation or removal, or the death or incapacity of a Plan Administrator, the Contingent Value Vehicle Board shall appoint a new Plan Administrator and shall obtain Bankruptcy Court approval of such appointment, which approval may be obtained
prior to or as soon as reasonably practicable after such appointment. No successor Plan Administrator hereunder shall in any event have any liability or responsibility for the acts or omissions of any of his/her predecessors. Every successor Plan Administrator appointed pursuant hereto shall execute, acknowledge and deliver to his/her predecessor an instrument in writing accepting such appointment hereunder, and thereupon such successor Plan Administrator, without any further act, shall become fully vested with all of the rights, powers, duties and obligations of his/her predecessor.
(c) From and after the Effective Date, the Plan Administrator shall cause the Debtors, the Reorganized Debtors and the Distribution Companies to (i) comply with and perform any obligations to be complied with or performed by ACC under the Purchase Agreements and the Sale Transaction Documents, and (ii) obtain directors’ and officers’, and employee errors and omissions, insurance coverage, appropriate in term and amount, for the Reorganized Debtors and the Distribution Companies and their respective directors and officers.
(d) Voting of TWC Common Stock Held in Reserves or Holdbacks. Pending distribution of such shares on account of Claims hereunder, the Plan Administrator shall cause any shares of TWC Common Stock held in Debtor Group Reserves, Tax Reserves or holdbacks hereunder to be voted on all matters with respect to which a vote of the TWC Common Stock is called on a pro rata basis in accordance with the result of the votes of all issued and outstanding shares of TWC Common Stock other than those held by Time Warner and its affiliates.
ARTICLE XII. EFFECT OF CONFIRMATION
12.01. Binding Effect. From and after the Confirmation Date, but subject to the occurrence of the Effective Date, this Plan shall be binding and inure to the benefit of the Debtors, all present and former holders of Claims and Equity Interests, and their respective assigns, including the Reorganized Debtors.
12.02. Obligations Under the Purchase Agreements. To the extent any obligations of any of the Debtors under the Purchase Agreements are transferred or assigned to, or assumed by, any successor to (or assignee of) the Debtors, including the Reorganized Debtors, the Contingent Value Vehicle and the Distribution Companies, (i) such obligations shall be fully enforceable against such successor or assignee and (ii) to the extent provided in the Purchase Agreements, such obligations shall remain fully enforceable against the Debtors, or the Reorganized Debtors, as the case may be, on a joint and several basis; provided that, no such obligation shall be transferred or assigned to, or assumed by, the Transferred Joint Venture Entities.
12.03. Vesting of Assets. Upon the Effective Date, pursuant to sections 1141(b) and (c) of the Bankruptcy Code, all Designated Litigation shall vest in the Contingent Value Vehicle, free and clear of all Claims, Liens, encumbrances, charges, and other interests, except as otherwise provided herein (including under Section 6.02(a) of this Plan) or in the Confirmation
Order. All Purchased Assets shall vest in accordance with the terms of the applicable Sale Transaction Documents free and clear of all Encumbrances other than Permitted Encumbrances and, in the case of the Delayed Transferred Assets, subject to Section 2.13 of the Comcast Purchase Agreement and Section 2.11 of the TW Purchase Agreement, as applicable. Except as required by Section 2.7 of the Comcast Purchase Agreement and Section 2.5 of the TW Purchase Agreement, upon the Effective Date, pursuant to sections 1141(b) and (c) of the Bankruptcy Code, all proceeds of the Sale Transactions (other than any such proceeds deposited in the Transaction Escrow Accounts or that are otherwise reserved or held in escrow pursuant to the Purchase Agreements) shall vest in the applicable Distribution Company, and all Excluded Assets shall revest in the applicable Reorganized Debtor, in each case free and clear of all Claims, Liens, encumbrances, charges, and other interests, except (i) as otherwise provided herein (including under Section 6.02(a)) or in the Confirmation Order and (ii) the Debtors may provide in the Confirmation Order that such vesting and revesting shall, without any action by any party, be deemed to vest in trust for the benefit of those entitled to distributions pursuant to the Plan. From and after the Effective Date, the Reorganized Debtors, Transferred Joint Venture Entities and the Contingent Value Vehicle, as applicable, shall continue to operate their businesses (including the continued operation of the Excluded Assets and, if applicable, the cable business of Century/ML Cable Venture, the implementation of this Plan, the administration and distribution of the Debtor Group Reserves and Transaction Escrows to be maintained hereunder, and the management and resolution of any disputes and liabilities expressly provided to continue pursuant to this Plan) and may use, acquire, and dispose of property free of any restrictions of the Bankruptcy Code or the Bankruptcy Rules and in all respects as if there were no pending cases under any chapter or provision of the Bankruptcy Code, except as provided herein. Without limiting the foregoing, pursuant to section 1123(b)(3) of the Bankruptcy Code, except for (w) Designated Litigation, which shall be transferred to the Contingent Value Vehicle, (x) any Causes of Action expressly waived by the Debtors pursuant to the terms of this Plan and (y) any Retained Claims (which shall be retained or transferred, as applicable, in accordance with the Comcast Purchase Agreement) and (z) any Causes of Action included in the Purchased Assets (which shall be retained or transferred, as applicable, in accordance with the applicable Sale Transaction Documents), the Reorganized Debtors shall retain and shall have the exclusive right, in their discretion, subject to Section 5.11(d) of the Comcast Purchase Agreement and Section 5.13(d) of the TW Purchase Agreement, to enforce against any Person any and all Causes of Action of the Debtors (other than those Causes of Action described in the definition of Designated Litigation which shall be transferred to the Contingent Value Vehicle).
12.04. Discharge of the Debtors and of Claims and Termination of Equity Interests. Upon the Effective Date and in consideration of the rights afforded in this Plan and the payments and distributions to be made hereunder, except as otherwise provided herein or in the Confirmation Order, each holder (as well as any trustees and agents on behalf of each holder) of a Claim or Equity Interest and any affiliate of such holder shall be deemed to have forever waived, released, and discharged the Debtors of and from any and all Liens, Claims, Equity Interests, Liabilities, Encumbrances, rights, and Liabilities that arose prior to the Effective Date of any kind, nature, or description whatsoever, including any accrued interest including holders of Existing Securities Law Claims, who, in exchange for the treatment afforded to such Claims and Equity Interests under this Plan, shall be deemed to have granted, and shall grant to the Debtors the waiver, release and discharge described in this Section 12.04. Except as otherwise provided herein, upon the Effective Date, all such holders of Liens, Claims, Liabilities,
Encumbrances and Equity Interests and their affiliates shall be forever precluded and enjoined, pursuant to sections 105, 524, 1141 of the Bankruptcy Code, from prosecuting or asserting any discharged Lien, Claim, Liability or Encumbrance against or terminated Equity Interest in the Debtors, Reorganized Debtors, Distribution Companies, the Buyers or the Transferred Joint Venture Entities, or against any of their assets or properties, any other or further Claim, Liabilities, Encumbrances or Equity Interest based upon any act or omission, transaction, or other activity of any kind or nature that occurred prior to the Effective Date, whether or not such holder has filed a proof of Claim or proof of Equity Interest. Nothing in this Section 12.04 shall limit or qualify the release of Encumbrances set forth in Section 12.12 hereof.
12.05. Term of Pre-Confirmation Injunctions or Stays. Unless otherwise provided in this Plan, the Confirmation Order, or a separate order from the Bankruptcy Court, all injunctions or stays arising under or entered during the Chapter 11 Cases in accordance with sections 105 or 362 of the Bankruptcy Code, or otherwise, and in existence on the Confirmation Date, (i) shall remain in full force and effect until the later of the Effective Date and the date indicated in such applicable order, and (ii) with respect to all proceeds of the Sale Transactions and Excluded Assets, shall remain in effect until, and for purposes of enjoining any action interfering with, the distribution of such proceeds pursuant to the terms of the Plan.
12.06. Injunction Against Interference with Plan. Without limiting the Buyers’ rights and obligations under the Sale Transaction Documents, upon the entry of the Confirmation Order, all holders of Claims and Equity Interests and other parties in interest, along with their respective present or former affiliates, employees, agents, officers, directors, or principals, shall be enjoined from taking any actions to interfere with the implementation or consummation of this Plan (including the Sale Transactions).
12.07. Injunction. Without limiting the Buyers’ rights and obligations under the Sale Transaction Documents, except as otherwise expressly provided in this Plan or the Confirmation Order, as of the Confirmation Date, but subject to the occurrence of the Effective Date, all Persons who have held, hold or may hold Liens, Claims, Liabilities or Encumbrances against or Equity Interests in, any or all of the Debtors, along with their respective present or former employees, agents, officers, directors, or principals, are permanently enjoined, with respect to any such Liens, Claims, Liabilities or Encumbrances or Equity Interests, as of the Confirmation Date but subject to the occurrence of the Effective Date, from (a) commencing, conducting or continuing in any manner, directly or indirectly, any suit, action or other proceeding of any kind (including any proceeding in a judicial, arbitral, administrative or other forum) against or affecting the Debtors, the Reorganized Debtors, the Plan Administrator, the Distribution Companies, the Contingent Value Vehicle, the Buyers (or their Affiliates) or the Purchased Assets or any of their property, or any direct or indirect transferee of any property of, or direct or indirect successor in interest to, any of the foregoing Persons or any property of any such transferee or successor; (b) enforcing, levying, attaching (including 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 Reorganized Debtors, the Plan Administrator, the Distribution Companies, the Contingent Value Vehicle, the Buyers, the Transferred Joint Venture Entities or the Purchased Assets or any of their property, or any direct or indirect transferee of any property of, or direct or indirect successor in interest to, any of the foregoing Persons, or any property of any such transferee or successor; (c) creating,
perfecting or otherwise enforcing in any manner, directly or indirectly, any encumbrance of any kind against the Debtors, the Reorganized Debtors, the Plan Administrator, the Distribution Companies, the Contingent Value Vehicle, the Buyers (or their Affiliates), the Transferred Joint Venture Entities or the Purchased Assets or any of their property, or any direct or indirect transferee of any property of, or successor in interest to, any of the foregoing Persons; (d) acting or proceeding in any manner, in any place whatsoever, that does not conform to or comply with the provisions of this Plan to the full extent permitted by applicable law; (e) taking any actions to interfere with the implementation or consummation of this Plan or the Sale Transactions; and (f) commencing or continuing, in any manner or in any place, any action that does not comply with or is inconsistent with the provisions of this Plan, such as commencing or continuing in any manner any action or other proceeding of any kind with respect to any Claims and Causes of Action which are extinguished or released pursuant to this Plan; provided, however, that nothing contained herein shall preclude such Persons from exercising their rights arising under and consistent with the terms of this Plan.
12.08. Releases.
(a) Releases by the Debtors. Except as otherwise provided in this Plan or the Confirmation Order, as of the Effective Date, the Debtors and Reorganized Debtors, in their individual capacities and as Debtors-in-Possession, shall be deemed to forever release and waive all claims, obligations, suits, judgments, damages, demands, debts, rights, causes of action and liabilities (other than the rights of the Debtors or the Reorganized Debtors to enforce this Plan and the contracts, instruments, releases, indentures and other agreements or documents delivered thereunder or the Sale Transaction Documents) whether liquidated or unliquidated, fixed or contingent, matured or unmatured, known or unknown, foreseen or unforeseen, then existing or thereafter arising, in law, equity or otherwise, which are based in whole or in part on any act, omission, transaction, event or other occurrence taking place on or after the Commencement Date (or the date of appointment, engagement or qualification) and to and including the Effective Date in any way relating to the Debtors, the Reorganized Debtors, the Chapter 11 Cases, this Plan or the Disclosure Statement, and that could have been asserted by or on behalf of the Debtors, or the Reorganized Debtors, whether directly, indirectly, derivatively or in any representative or any other capacity, against the following Persons in their respective capacities as such (the “Released Parties”): (i) the current officers and employees of the Debtors, except for any claim for money borrowed from or owed to the Debtors or its subsidiaries by any such directors, officers or employees; (ii) any current and former directors and officers of the Debtors, in each case who were first appointed after the Commencement Date; (iii) the Debtors’ Professionals, and their respective affiliates and current and former officers, partners, directors, employees, agents, members, shareholders, advisors (including any attorneys, financial advisors, investment bankers and other professionals retained by such Persons); (iv) the DIP Agent; (v) the Statutory Committees and their members and, only if and to the extent such members acted in such capacity by or through such Persons: their respective affiliates and current and former officers, partners, directors, employees, agents, members, shareholders, advisors (including any attorneys, financial advisors, investment bankers and other professionals retained by such Persons), and professionals of the foregoing; and (vi) except with respect to the Designated
Litigation, the Indenture Trustees and their respective affiliates and current and former officers, partners, directors, employees, agents, members, shareholders, advisors (including any attorneys, financial advisors, investment bankers and other professionals retained by such Persons), and professionals of the foregoing; provided, however, that in no event shall (x) anything in this Section be construed as a release of any Person from claims of the insurer under the Debtors’ directors’ and officers’ insurance policy for a return of advanced costs or from claims that such insurance policies have been rescinded, (y) any Excluded Individuals be Released Parties and no Excluded Individuals shall receive or be deemed to receive any release under this Plan or (z) anything in this Section be construed as a release of any Person’s fraud or willful misconduct.
(b) Releases by Holders of Claims and Equity Interests. Except as otherwise provided in this Plan or the Confirmation Order, on the Effective Date, to the fullest extent permissible under applicable law, as such law may be extended or interpreted subsequent to the Effective Date, all holders of Claims and Equity Interests, in consideration for the obligations of the Debtors and the Reorganized Debtors under this Plan, the Sale Transaction Documents, and other contracts, instruments, releases, agreements or documents executed and delivered in connection with this Plan and the Sale Transaction Documents, and each entity (other than the Debtors) that has held, holds or may hold a Claim or Equity Interest, as applicable, will be deemed to have consented to this Plan for all purposes and the restructuring embodied herein and deemed to forever release, waive and discharge all claims, demands, debts, rights, causes of action or liabilities (other than the right to enforce the obligations of any party under this Plan and the contracts, instruments, releases, agreements and documents delivered under or in connection with this Plan), including as a result of this Plan being consummated, whether liquidated or unliquidated, fixed or contingent, matured or unmatured, known or unknown, foreseen or unforeseen, then existing or thereafter arising, in law, equity or otherwise that are based in whole or in part on any act or omission, transaction, event or other occurrence taking place on or after the Commencement Date through and including the Effective Date in any way relating to the Debtors, the Chapter 11 Cases, this Plan or the Disclosure Statement against the following Persons in their respective capacities as such (the “Third Party Releasees”): (i) the current directors, officers and employees of the Debtors; (ii) any former directors and officers of the Debtors who were first appointed after the Commencement Date; (iii) the Debtors’ Professionals, and their respective affiliates and current and former officers, partners, directors, employees, agents, members, shareholders, advisors (including any attorneys, financial advisors, investment bankers and other professionals retained by such Persons); (iv) the DIP Agent; (v) the Statutory Committees and their members, and their respective affiliates and current and former officers, partners, directors, employees, agents, members, shareholders, advisors (including any attorneys, financial advisors, investment bankers and other professionals retained by such Persons); (vi) Lenders (as defined in the Prepetition Credit Agreements) and any holders of Bank Claims from claims of any Person with respect to which the Lenders or such holders of Bank Claims would have the right to indemnification for any Claim (except as provided for in Section 6.08 of the Plan) from one or more Debtors under the terms of the Prepetition Credit Agreement (to the extent
not inconsistent with applicable law), and professionals of the foregoing, provided that the release of the Lenders and any holders of Bank Claims as set forth in this clause (vi) shall extend to any act or omission, transaction, event or other occurrence taking place from the beginning of time through the Effective Date; provided, however, that the failure of the Bankruptcy Court to approve the release pursuant to this clause (b)(vi) shall not invalidate any acceptance by the Bank Lenders of the Plan or provide holders of Bank Claims with the right to withdraw their acceptances of the Plan; and (vii) the Transferred Joint Venture Entities, provided that the release of the Transferred Joint Venture Entities shall extend to any act or omission, transaction, event or other occurrence taking place at any time on or prior to the Effective Date. Notwithstanding the foregoing, in no event shall (w) anything in this Section be construed as a release of any Person from claims of the insurer under the Debtors’ directors and officers insurance policy for a return of advanced costs or from claims that such insurance policies have been rescinded, (x) any Excluded Individuals be Third Party Releasees, (y) except as set forth in clause (vi) above any release granted in this Section (or any related injunction granted pursuant to Section 12.10 hereof) release or be deemed to release those prior or existing defendants in the Securities Class Action, who shall be identified on a schedule that shall be filed as part of the Plan Supplement, from claims asserted against such defendants in the Securities Class Action or (z) anything in this Section be construed as a release of any Person’s (other than a Debtor’s) fraud or willful misconduct.
(c) Notwithstanding anything to the contrary, (i) except to the extent permissible under applicable law, as such law may be extended or interpreted subsequent to the Effective Date, the releases provided for in this Section 12.08 shall not release any non-Debtor entity from any liability arising under: (x) the Tax Code or any state, city or municipal tax code; (y) the environmental laws of the United States or any state, city or municipality; or (z) any criminal laws of the United States or any state, city or municipality; and (ii) the releases provided in this Section 12.08 shall not release: (x) any non-Debtor entity from any liability arising under the securities laws of the United States; (y) any Excluded Individual from any liability whatsoever; or (z) any defendant in any Designated Litigation from any liability in connection therewith. Nothing in the Plan or the Confirmation Order approving the Plan shall release, discharge, enjoin, or preclude the enforcement of any environmental liability arising post-Effective Date or arising from an event that occurred prior to the Effective Date where the liability continues post-Effective Date to a governmental unit to which any entity would be subject as the owner or operator of property after the Effective Date.
(d) Notwithstanding anything otherwise to the contrary, no provision of this Plan or of the Confirmation Order, including any release or exculpation provision, shall modify, release or otherwise limit the liability of any Person not specifically released hereunder, including any Managed Entity or any Person that is a co-obligor or joint tortfeasor of a Released Party or Third Party Releasee, that otherwise is liable under theories of vicarious or other derivative liability, or that is or becomes the subject of any claim asserted by the Contingent Value Vehicle Trustee (including any defendant in any Designated Litigation).
12.09. Exculpation and Limitation of Liability. None of the Debtors, Buyers (in their capacity as such), the Reorganized Debtors, the Transferred Joint Venture Entities, the Plan Administrator, the Distribution Companies, the DIP Agent (in its capacity as such), the Statutory Committees and their members, or any of their respective current or former members, partners, officers, directors, employees, advisors, professionals, affiliates, or agents and advisors of any of the foregoing (including any attorneys, financial advisors, investment bankers and other professionals retained by such Persons, but solely in their capacities as such), the Indenture Trustees to the extent acting pursuant to Section 8.08 hereof, and the Bank Agents to the extent, performing their obligations under Section 8.09 hereof not otherwise required by the terms of the applicable Prepetition Credit Agreement, shall have or incur any liability to any holder of any Claim or Equity Interest for any act or omission in connection with, related to, or arising out of the Chapter 11 Cases, the negotiation and execution of this Plan, the Disclosure Statement, the Purchase Agreements and Sale Transactions, the solicitation of votes for and the pursuit of confirmation of this Plan, the consummation of this Plan, or the administration of this Plan, the Purchase Agreements, the Sale Transactions and the property to be distributed under this Plan, including all documents ancillary thereto, all decisions, actions, inactions and alleged negligence or misconduct relating thereto and all prepetition activities leading to the promulgation and confirmation of this Plan except fraud, willful misconduct or gross negligence as determined by a Final Order of the Bankruptcy Court. The foregoing parties shall be entitled to rely upon the advice of counsel with respect to their duties and responsibilities under this Plan. Nothing in this Section 12.09 shall (i) be construed as a release of any entity’s fraud, gross negligence or willful misconduct with respect to matters set forth in this Section 12.09, (ii) limit the liability of attorneys for the Debtors, the Reorganized Debtors, the Statutory Committees and their members and the Indenture Trustees to their respective clients pursuant to DR 6-102 of the Code of Professional Responsibility or (iii) limit or abrogate the obligations of the Debtors or the Buyers to one another under the Sale Transaction Documents.
12.10. Injunction Related to Releases and Exculpation. The Confirmation Order shall permanently enjoin the commencement or prosecution by any Person, whether directly, derivatively or otherwise, of any Claims (except for Assumed Sale Liabilities), obligations, suits, judgments, damages, demands, debts, rights, Causes of Action or liabilities released pursuant to this Plan, including the Claims (except for Assumed Sale Liabilities), obligations, suits, judgments, damages, demands, debts, rights, Causes of Action or liabilities released in Sections 12.08 and 12.09 of this Plan.
12.11. Termination of Subordination Rights and Settlement of Related Claims. Except as provided herein (including in connection with the Inter-Creditor Dispute), the classification and manner of satisfying all Claims and Equity Interests and the respective distributions and treatments under the Plan take into account or conform to the relative priority and rights of the Claims and Equity Interests in each Class in connection with any contractual, legal and equitable subordination rights relating thereto whether arising under general principles of equitable subordination, section 510(b) of the Bankruptcy Code or otherwise, and any and all such rights are settled, compromised and released pursuant to this Plan. The Confirmation Order shall permanently enjoin, effective as of the Effective Date, all Persons from enforcing or attempting to enforce any such contractual, legal and equitable rights satisfied, compromised and settled pursuant to this Article XII (which, for the avoidance of doubt, excludes the claims pending in connection with the Inter-Creditor Dispute if the Inter-Creditor Dispute Resolution has not
occurred by the Confirmation Date and the rights and remedies among and between the Bank Lenders under and through their respective Prepetition Credit Agreement).
12.12. Release of Liens.
(a) Each Encumbrance, other than a Permitted Encumbrance (excluding a Permitted Encumbrance securing a financial obligation that is not an Assumed Sale Liability), including Encumbrances securing: (w) any DIP Lender Claim, Secured Tax Claim or Other Secured Claim; (x) any Claim that is purportedly secured; (y) any Lien on the stock or assets of Coudersport Cable Television Cable Co. and/or Bucktail Broadcasting Corporation; (z) any judgment, personal property or ad valorem tax, or other tax of any kind or character, mechanics’ or similar lien Claim, in each case regardless of whether such Claim is an Allowed Claim, shall, regardless of whether such Claim has been scheduled or proof of such Claim has been filed:
(i) if such Encumbrance is on an Excluded Asset and secures a Secured Tax Claim or Other Secured Claim, such Encumbrance shall upon payment of the consideration set forth in Section 4.02 or 4.03, as the case may be, automatically, and without further action by the Debtors or the Reorganized Debtors, be deemed released;
(ii) in all other cases, such Encumbrance shall automatically, and without further action by the Debtors or the Reorganized Debtors, be deemed released immediately upon the occurrence of the Effective Date; provided, however, that in the case of Purchased Assets, any Lien in favor of the holder of a DIP Lender Claim, Secured Tax Claim or Other Secured Claim shall automatically attach (in the same order of priority as existed with respect to such Claim and/or Lien, and subject to any rights, Claims or defenses the Debtors or Reorganized Debtors may have with respect to such Claim and/or Lien) to the net proceeds of the sale of the property that secured such Claim until such time as such DIP Lender Claim, Secured Tax Claim or other Secured Claim is satisfied as set forth in Section 2.04, 4.02 or 4.03, as applicable, at which time such Claim and/or Lien shall automatically, and without further action by the Debtors or Reorganized Debtors, be deemed released; and
(b) the holder of any such Encumbrance shall execute such documents and instruments as the Plan Administrator, the applicable Distribution Company, the Reorganized Debtors, or, with respect to Purchased Assets, the applicable Buyer, as the case may be, require to evidence such Claim holder’s release of such property or Lien, and if such holder refuses to execute appropriate documents or instruments, the Debtors, the Plan Administrator, the applicable Distribution Company or the Reorganized Debtors (as applicable) or Buyers may, in their discretion, file a copy of the Confirmation Order in the appropriate recording office, which shall serve to release any Claim holder’s rights in such property; and
(c) on the Effective Date, except as expressly provided in Section 12.12(a)(i) hereof, all right, title and interest in property subject to an Encumbrance immediately
prior to the Effective Date shall revert or be transferred to the respective Reorganized Debtors or the applicable Distribution Company, or, with respect to the Purchased Assets, to the Buyers (or, if applicable, retained by the applicable Transferred Joint Venture Entity), as applicable, free and clear of all Claims and interests, including Liens, escrows, charges, pledges, Encumbrances and/or security interests of any kind except, in the case of the Buyers or the Transferred Joint Venture Entities, for Permitted Encumbrances (excluding Permitted Encumbrances securing financial obligations that are not Assumed Sale Liabilities).
12.13. Retention of Causes of Action/Reservation of Rights.
(a) Except as specifically provided herein, nothing contained in this Plan or the Confirmation Order shall be deemed to be a waiver or the relinquishment of any rights, Claims or Causes of Action that the Debtors may have or which a Reorganized Debtor (or the Statutory Committees to the extent a Statutory Committee has been authorized to act on the Debtors’ behalf) may choose to assert on behalf of the Reorganized Debtors or itself in accordance with any provision of the Bankruptcy Code or any applicable nonbankruptcy law, including (i) any and all Claims against any Person, to the extent such Person asserts a crossclaim, counterclaim, and/or Claim for setoff which seeks affirmative relief against a Debtor, a Reorganized Debtor, or any of their officers, directors, or representatives; (ii) the avoidance of any transfer by or obligation of the Reorganized Debtors or the Debtors or the recovery of the value of such transfer; (iii) the turnover of any property of the Reorganized Debtors; and/or (iv) Claims against other third parties.
(b) Nothing contained in this Plan or the Confirmation Order shall be deemed to be a waiver or relinquishment of any claim, Cause of Action, right of setoff, or other legal or equitable defense that a Debtor had immediately prior to the Commencement Date, against or with respect to any Claim left unimpaired by this Plan. The Reorganized Debtors shall have, retain, reserve, and be entitled to assert all such claims, Causes of Action, rights of setoff, or other legal or equitable defenses which the Debtors had immediately prior to the Commencement Date as fully as if the Chapter 11 Cases had not been commenced, and all of the Reorganized Debtors’ legal and/or equitable rights respecting any Claim left unimpaired by this Plan may be asserted after the Confirmation Date to the same extent as if the Chapter 11 Cases had not been commenced; provided that, with respect to any such Claims, Causes of Action, rights of setoff, or other legal or equitable defenses that are Purchased Assets, such Claims, Causes of Action, rights of setoff, or other legal or equitable defenses shall be transferred to the applicable Buyer or retained by the applicable Transferred Joint Venture Entity, as the case may be and the applicable Buyer or Transferred Joint Venture Entity shall be entitled to assert all such claims, Causes of Action, rights of setoff, or other legal or equitable defenses which the Debtors had in connection with such Purchased Assets immediately prior to the Commencement Date as fully as if the Chapter 11 Cases had not been commenced, and all of the Buyers’ or Transferred Joint Venture Entities’ legal and/or equitable rights respecting any Claim left unimpaired by this Plan may be asserted after the Confirmation Date to the same extent as if the Chapter 11 Cases had not been commenced.
12.14. Subrogation. This Plan contemplates distributions with respect to Allowed Bank Claims in amounts estimated to result in satisfaction in full of such Allowed Claims. In recognition of this treatment, the applicable Reorganized Debtors shall have the option to be subrogated to the extent permitted by applicable law, without the necessity of the execution and/or delivery of any document or instrument other than a written notice filed with the Bankruptcy Court, to all of the rights and remedies of the Bank Lenders arising in connection with the Bank Claims or otherwise under the Prepetition Credit Agreements with respect to the Managed Entities and any equity securities in the Managed Entities. In connection with such subrogation, the Bank Lenders shall be deemed to have assigned all of their rights against and liens and security interests in and to the Managed Entities and any equity securities in the Managed Entities to the Reorganized Debtors as of the Effective Date, free and clear of any Liens, competing claims or encumbrances, and shall deliver to the Debtors all collateral relating to the Managed Entities in which the collateral agents under the Prepetition Credit Agreements, for the benefit of the Bank Lenders, have any rights, including any evidence of any liens and security interests in the Managed Entities and any equity securities in the Managed Entities. Notwithstanding the foregoing, the agents under the Prepetition Credit Agreements, for the benefit of the Bank Lenders, and/or the Bank Lenders, and at the Reorganized Debtors’ expense, shall execute and/or deliver such documents and instruments as reasonably requested by the Debtors to evidence the subrogation provided by this Section 12.14 or as otherwise directed by the Bankruptcy Court to evidence or give effect to such subrogation.
12.15. Reservation of Litigation Rights. The terms of this Plan and the Confirmation Order shall not have the effect of (a) creating or eliminating any right to a trial by jury for any claim or cause of action asserted in any Designated Litigation, including in any Bank Action, or (b) impairing or prejudicing in any respect any Bank Lender’s right to assert any Defensive Claims and/or Bank Third Party Claim, the right of any other defendant in the Bank Litigation to assert any Defensive Claims or the Contingent Value Vehicle’s right to assert any Estate Defenses.
ARTICLE XIII. CONDITIONS PRECEDENT
13.01. Conditions to Confirmation. The following are conditions precedent to confirmation of this Plan that may be satisfied or waived (subject to any applicable restrictions or rights of the Buyers under the Sale Transaction Documents) in accordance with Section 13.04 of this Plan:
(a) the Bankruptcy Court shall have approved the Disclosure Statement with respect to this Plan in an order in form and substance acceptable to the Debtors, in their sole and absolute discretion;
(b) the Confirmation Order shall be in form and substance acceptable to the Debtors, in their sole and absolute discretion;
(c) the Bankruptcy Court shall have approved the Sale Transactions at or prior to the Confirmation Hearing and the related Sale Order shall be satisfactory to the Debtors in their sole and absolute discretion;
(d) the Adelphia-Rigas Settlement Agreement and the Government Settlement Agreements shall have been approved by the Bankruptcy Court, which approval shall not have been stayed, and shall remain in full force and effect;
(e) the Settlement Allocation Order shall have been entered, shall not have been stayed and shall remain in full force and effect;
(f) the Subsidiary Notes Existing Securities Law Claims shall have been either (x) fixed and Allowed in an aggregate amount not greater than $50,000,000 or (y) estimated pursuant to the Estimation Order in an aggregate amount not to exceed such amount;
(g) in each case subject to the occurrence of the Effective Date, to the extent necessary or appropriate, the Plan Documents to be entered into (rather than assumed) by the Reorganized Debtors shall have been entered and delivered, all actions, documents, and agreements necessary to implement the Plan shall have been effected or executed and the Debtors shall have received all material authorizations, consents, regulatory approvals, rulings, letters, no-action letters, opinions, or documents that are reasonably necessary to implement the Plan and that are required by law, regulation, or order.
13.02. Effectiveness. The Plan shall not become effective unless and until the following conditions shall have been satisfied or waived (subject to any applicable restrictions or rights of the Buyers under the Sale Transaction Documents) pursuant to Section 13.04 of this Plan:
(a) the Sale Transaction Closing shall have occurred or shall substantially contemporaneously occur; and
(b) the material transactions required to be performed on or prior to the Effective Date under the Government Settlement Agreements shall have been consummated in accordance with their terms.
13.03. Failure of Conditions. In the event the Purchase Agreements are, or, if the Comcast Purchase Agreement is terminated giving rise to the TW Expanded Transaction, the TW Purchase Agreement is, terminated in accordance with their respective terms, in either case, after the entry of the Confirmation Order, (i) the Confirmation Order shall be vacated immediately after such termination, (ii) no distributions under the Plan shall be made, (iii) the Debtors and all holders of Claims and Equity Interests shall be restored to the status quo ante as of the day immediately preceding the Confirmation Date as though the Confirmation Date never occurred, and (iv) the Debtors’ obligations with respect to Claims and Equity Interests shall remain unchanged and nothing contained herein shall constitute or be deemed a waiver or release of any Claims or Equity Interests by or against the Debtors or any other Person or to prejudice in any manner the rights of the Debtors or any Person in any further proceedings involving the Debtors.
13.04. Waiver of Conditions. The Debtors, in their sole discretion (but after consultation with the Creditors’ Committee) and to the extent not prohibited by applicable law, and, without limiting any applicable restrictions or rights of the Buyers under the Sale Transaction Documents, may waive one or more of the conditions precedent (i) to effectiveness of the Plan set forth in Section 13.02 hereof in whole or part, upon five Business Days’ Notice to the Bankruptcy Court, Statutory Committees and any parties in interest without a hearing or (ii) to confirmation of the Plan set forth in Section 13.01 hereof prior to the Confirmation Date without any hearing. The failure to satisfy or waive any condition to the Confirmation Date or the Effective Date may be asserted by the Debtors in their sole discretion (without limiting or restricting any applicable rights of the Buyers under the Sale Transaction Documents) regardless of the circumstances giving rise to the failure of such conditions to be satisfied (including any action or inaction by the Debtors in their sole discretion). The failure of the Debtors in their sole discretion to exercise any of the foregoing rights shall not be deemed a waiver of any other rights, and each such right shall be deemed an ongoing right, which may be asserted at any time.
ARTICLE XIV. RETENTION OF JURISDICTION
14.01. Scope of Bankruptcy Court Jurisdiction. The Bankruptcy Court shall have exclusive jurisdiction of all matters arising out of, and related to, the Chapter 11 Cases and the Plan pursuant to, and for the purposes of, sections 105(a) and 1142 of the Bankruptcy Code and for, among other things, the following purposes:
(a) To hear and determine pending applications for the assumption, assumption and assignment or rejection of executory contracts or unexpired leases and the allowance of cure amounts and Claims resulting therefrom or from the assumption, assumption and assignment or rejection of executory contracts or unexpired leases pursuant to this Plan;
(b) To hear and determine any and all adversary proceedings, applications, and contested matters, and to order appropriate relief in connection therewith (including issuance and/or enforcement of releases);
(c) To hear and determine any objection to Administrative Expense Claims, Claims or Equity Interests;
(d) To enter and implement such orders as may be appropriate in the event the Confirmation Order is for any reason stayed, revoked, modified, or vacated;
(e) To issue such orders in aid of execution and consummation of the Plan, to the extent authorized by section 1142 of the Bankruptcy Code;
(f) To consider any amendments to, or modifications of, the Plan and the Plan Supplement, and any dispute or controversy relating to execution, delivery or compliance with any document included in the Plan Supplement, and to cure any defect or omission, or reconcile any inconsistency in any order of the Bankruptcy Court, including the Confirmation Order;
(g) To issue such orders in aid of execution and consummation of any Sale Transaction to be consummated in connection with the Plan;
(h) To hear and determine all applications for compensation and reimbursement of expenses of professionals under sections 330, 331, and 503(b) of the Bankruptcy Code;
(i) To hear and determine disputes arising in connection with the interpretation, implementation, or enforcement of this Plan (including in connection with the Sale Transactions, Debtor Group Reserves, Transaction Escrows and the Purchase Agreements);
(j) To protect the Purchased Assets, the Buyers and the Transferred Joint Venture Entities from Claims against, or interference, with such property (except for any claims or interference resulting from an Assumed Sale Liability or Permitted Encumbrance), including actions to quiet or otherwise clear title to such property, and to determine the Reorganized Debtors’ exclusive ownership of any property retained under the Plan or to resolve any dispute concerning (x) Liens, security interests or Encumbrances on any Purchased Assets or property of the Reorganized Debtors or (y) Claims against the Buyers (or their Affiliates) or Purchased Assets asserting successor liability;
(k) To issue injunctions, enter and implement other orders, and take such other actions as may be necessary or appropriate to restrain interference by any Person with the consummation, implementation, or enforcement of the Plan, any Sale Transaction to be consummated in accordance herewith, the Confirmation Order, or any other order of the Bankruptcy Court;
(l) To recover all assets of the Debtors and property of the Debtors and Reorganized Debtors, wherever located, including the Managed Entities;
(m) To hear and determine all matters related to the Contingent Value Vehicle, including: (i) the formation, operation and winding up of the Contingent Value Vehicle; (ii) the appointment and/or removal of a Contingent Value Vehicle Trustee or the appointment and/or removal of members of the Contingent Value Vehicle Board; and (iii) disputes concerning the administration of the Contingent Value Vehicle, payment of costs and expenses of the Contingent Value Vehicle, and distributions to Contingent Value Vehicle Holders;
(n) To hear and determine matters concerning state, local, and federal taxes, including as provided by sections 346, 505, and 1146 of the Bankruptcy Code (including the expedited determination of tax under section 505(b) of the Bankruptcy Code);
(o) To hear, determine and resolve any matters or disputes relating to the Debtors’ or Reorganized Debtors’ Franchises and any and all rights relating thereto;
(p) To resolve any Disputed Claims or Equity Interests;
(q) To determine the scope of any discharge of any Debtor under the Plan or the Bankruptcy Code;
(r) To hear any other matter not inconsistent with the Bankruptcy Code; and
(s) To enter a final decree closing the Chapter 11 Cases; provided, however, with respect to a governmental unit’s exercise of its police or regulatory powers other than the enforcement of a money judgment, the jurisdiction of any other tribunal shall not be reduced or impaired from that as set forth in any applicable, valid statutory grant of jurisdiction.
ARTICLE XV. MISCELLANEOUS PROVISIONS
15.01. Effectuating Documents and Further Transactions. Without limiting or restricting any applicable rights of the Buyers under the Sale Transaction Documents, each of the Debtors and Reorganized Debtors is authorized to execute, deliver, file, or record such contracts, instruments, releases, indentures, and other agreements or documents and take such actions as may be necessary or appropriate to effectuate and further evidence the terms and conditions of the Plan and any securities issued pursuant to this Plan.
15.02. Corporate Action. On the Effective Date, all matters provided for under this Plan (including the authorization or consummation of the Sale Transaction) that would otherwise require approval of the stockholders, directors, members, managers or partners of one or more of the Debtors or Reorganized Debtors, including (i) the authorization to issue and/or deliver or cause to be issued and/or delivered the TWC Class A Common Stock, (ii) the effectiveness of the certificates of incorporation and by-laws of the Reorganized Debtors, (iii) all Restructuring Transactions, (iv) the election or appointment, as the case may be, of directors and officers of Reorganized ACC and the other Reorganized Debtors, (v) the authorization and approval of the Sale Transaction Documents, (vi) the execution of the Contingent Value Vehicle Agreement, the establishment of the Contingent Value Vehicle, the contribution of the Designated Litigation and the delivery of the and Contingent Value Vehicle Interests in accordance with the terms of this Plan; (vii) the qualification of Reorganized ACC or any of the Reorganized Debtors as a foreign corporation wherever the conduct of business by the Company requires such qualification, shall be deemed to have occurred and shall be in effect from and after the Effective Date pursuant to Section 303 of the Delaware General Corporation Law or other applicable law of the states in which the Debtors and the Reorganized Debtors are organized, without any requirement of further action by the stockholders, directors, members, managers, or partners of the Debtors or Reorganized Debtors. On the Effective Date, or as soon thereafter as is practicable, Reorganized ACC and the Reorganized Debtors shall, if required, file their amended certificates of incorporation with the Secretary of State of the state in which each such entity is (or will be) incorporated, in accordance with the applicable general corporation law of each such state.
15.03. Exemption from Transfer Taxes. Pursuant to section 1146(c) of the Bankruptcy Code, the transfer of assets pursuant to the Sale Transaction, the Restructuring Transactions, the issuance, transfer, or exchange of notes or equity securities under the Plan, the creation of any
mortgage, deed of trust, or other security interest, the making or assignment of any lease or sublease, or the making or delivery of any deed or other instrument of transfer under, in furtherance of, or in connection with the Plan (including the transfer of the Purchased Assets in connection with any Sale Transactions), including any merger agreements or agreements of consolidation, deeds, bills of sale, or assignments executed in connection with any of the transactions contemplated under the Plan, shall constitute a “transfer under a plan” and shall not be subject to any stamp, real estate transfer, mortgage recording, or other similar tax. All sale transactions consummated by the Debtors and approved by the Bankruptcy Court on and after the Commencement Date through and including the Effective Date, including the transfers effectuated under this Plan, the sale by the Debtors of owned property pursuant to section 363(b) of the Bankruptcy Code, and the assumption, assignment, and sale by the Debtors of unexpired leases of non-residential real property pursuant to section 365(a) of the Bankruptcy Code, shall be deemed to have been made under, in furtherance of, or in connection with this Plan and, thus, shall not be subject to any stamp, real estate transfer, mortgage recording, or other similar tax.
15.04. Payment of Statutory Fees. On the Effective Date, and thereafter as may be required, the Debtors and/or Reorganized Debtors, as applicable, shall pay all fees payable pursuant to section 1930 of chapter 123 of title 28 of the United States Code through the entry of a final decree closing the applicable Debtors’ and Reorganized Debtors’ cases.
15.05. Post-Effective Date Fees and Expenses. From and after the Effective Date, Reorganized ACC and the Reorganized Debtors shall, in the ordinary course of business and without the necessity for any approval by the Bankruptcy Court, pay the reasonable fees and expenses of professional Persons thereafter incurred by Reorganized ACC and the Reorganized Debtors, including those fees and expenses incurred in connection with the implementation and consummation of this Plan.
15.06. Dissolution of the Committees. The Statutory Committees and the Fee Committee shall terminate on the Effective Date, except that (a) the Statutory Committees and the Fee Committee may evaluate, object to (if necessary), and appear at the hearing to consider applications for final allowances of compensation and reimbursement of expenses, including applications for compensation or reimbursement under section 503 of the Bankruptcy Code, and support or prosecute any objections to such applications, if appropriate and (b) the Creditors’ Committee shall continue solely for the purpose of (i) monitoring the Plan Administrator, the Distribution Companies and the Reorganized Debtors, (ii) ensuring that distributions take place in accordance with the Plan, and (iii) monitoring the Contingent Value Vehicle Board on behalf of the beneficiaries of CVV Interests. The Post-Effective Date professional fees of the Statutory Committees and the Fee Committee for the services set forth in the preceding sentence shall be paid by the Contingent Value Vehicle from the Litigation Prosecution Fund.
15.07. Plan Supplement. Forms of the Reorganized ACC Certificate of Incorporation, the Reorganized ACC By-laws, the forms of certificates of incorporation and by-laws or other applicable forms of organizational documents of each of the other Reorganized Debtors, Schedules 10.01(a) and 10.01(b) referred to in Section 10.01 of this Plan, the principal Sale Transaction Documents, the Contingent Value Vehicle Agreement and any other appropriate documents shall be contained in the Plan Supplement and filed with the Clerk of the Bankruptcy Court at least 25 days prior to the Voting Deadline; provided, however, that the Debtors may
amend (A) Schedules 10.01(a) and 10.01(b) through and including the Confirmation Date and (B) each of the other documents contained in the Plan Supplement through and including the Effective Date that is not inconsistent with this Plan. Upon its filing with the Bankruptcy Court, the Plan Supplement may be inspected in the office of the Clerk of the Bankruptcy Court during normal court hours. Holders of Claims or Equity Interests may obtain a copy of the Plan Supplement on the Debtors’ independent website at www.adelphia.com.
15.08. Amendment or Modification of this Plan. Subject to any applicable restrictions or requirements under the Purchase Agreements or under the Trade Plan Support Agreement, alterations, amendments, or modifications of or to the Plan (including to provide for treatment different than that set forth herein with respect to any class of Claim or Equity Interest, including impairment of Classes that are unimpaired hereunder, any amendment that transfers one or more Debtors to different Debtor Groups, or that eliminates one or more Debtor Groups from participation under the Plan) may be proposed in writing by the Debtors at any time prior to the Confirmation Date, provided that the Plan, as altered, amended, or modified, satisfies the conditions of sections 1122 and 1123 of the Bankruptcy Code, and the Debtors shall have complied with section 1125 of the Bankruptcy Code. Subject to any applicable restrictions or requirements on the Debtors under the Purchase Agreements or under the Trade Plan Support Agreement, this Plan may be altered, amended, or modified at any time after the Confirmation Date and before substantial consummation, provided that this Plan, as altered, amended, or modified, satisfies the requirements of sections 1122 and 1123 of the Bankruptcy Code and the Bankruptcy Court, after notice and a hearing, confirms the Plan, as altered, amended, or modified, under section 1129 of the Bankruptcy Code and the circumstances warrant such alterations, amendments, or modifications. A holder of a Claim or Equity Interest that has accepted this Plan shall be deemed to have accepted this Plan, as altered, amended, or modified, if the proposed alteration, amendment, or modification does not materially and adversely change the treatment of the Claim or Equity Interest of such holder.
15.09. Revocation or Withdrawal of this Plan. Without limiting or restricting any applicable rights of the Buyers under the Sale Transaction Documents, the Debtors reserve the right to revoke or withdraw this Plan prior to the Effective Date in whole or in part. If the Debtors revoke or withdraw the Plan prior to the Effective Date, then this Plan shall be deemed null and void. If the TW Purchase Agreement or the Comcast Purchase Agreement is terminated (except for any termination of the Comcast Purchase Agreement giving rise to TW NY’s obligation to effect the TW Expanded Transaction), this Plan shall automatically and immediately following such termination be revoked and withdrawn, and shall be deemed null and void and of no force and effect, and the result shall be the same as if the Confirmation Order had not been entered and the Effective Date did not occur. In the event of any such waiver or revocation, nothing contained herein shall constitute or be deemed a waiver or release of any Claims by or against the Debtors or any other Person or to prejudice in any manner the rights of the Debtors or any Person in any further proceedings involving the Debtors.
15.10. Confirmation Order. The Confirmation Order shall, and is hereby deemed to, ratify all transactions effected by the Debtors during the period commencing on the Commencement Date and ending on the Confirmation Date except for any acts constituting willful misconduct, gross negligence, recklessness or fraud.
15.11. Severability. If, prior to the entry of the Confirmation Order, any term or provision of the Plan is held by the Bankruptcy Court to be invalid, void, or unenforceable, the Bankruptcy Court, at the request of the Debtors, shall have the power to alter and interpret such term or provision to make it valid or enforceable to the maximum extent practicable, consistent with the original purpose of the term or provision held to be invalid, void, or unenforceable, and such term or provision shall then be applicable as altered or interpreted. Notwithstanding any such holding, alteration, or interpretation, the remainder of the terms and provisions of the Plan will remain in full force and effect and will in no way be affected, impaired, or invalidated by such holding, alteration, or interpretation. The Confirmation Order shall constitute a judicial determination and shall provide that each term and provision of the Plan, as it may have been altered or interpreted in accordance with the foregoing, is valid and enforceable pursuant to its terms.
15.12. Expedited Tax Determination. The Reorganized Debtors may request an expedited determination of taxes under section 505(b) of the Bankruptcy Code for all returns filed for, or on behalf of, such Debtors or Reorganized Debtors for all taxable periods beginning on or before the Effective Date.
15.13. Governing Law. Except to the extent that the Bankruptcy Code or other federal law is applicable, or to the extent an exhibit or schedule hereto or in the Plan Supplement provides otherwise, the rights, duties, and obligations arising under the Plan shall be governed by, and construed and enforced in accordance with, the laws of the State of New York, without giving effect to any contrary result otherwise required under applicable choice or conflict of law rules.
15.14. Binding Effect. The Plan shall be binding upon and inure to the benefit of the Debtors, the holders of Claims and Equity Interests, and their respective successors and assigns, including the Reorganized Debtors and the Transferred Joint Venture Entities.
15.15. Exhibits/Schedules. All exhibits and schedules to the Plan, including the Plan Supplement, are incorporated into and are a part of the Plan as if set forth in full herein.
15.16. Notices. All notices, requests, and demands to or upon the Debtors to be effective shall be in writing (including by facsimile transmission) and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when actually delivered or, in the case of notice by facsimile transmission, when received and telephonically confirmed, addressed as follows:
ARTICLE XVI. POTENTIAL INTER-CREDITOR DISPUTE RESOLUTIONS
16.01. Terms of Potential Inter-Creditor Dispute Resolution. This Article XVI sets forth a Potential Arahova Settlement, a Potential FrontierVision Holdco Settlement, and a Potential Olympus Parent Settlement (collectively, the “Potential Settlements”). The Potential Settlements do NOT reflect a determination of the Bankruptcy Court or the Debtors as to the likely outcome of the Inter-Creditor Dispute. Rather, the Potential Settlements reflect an economic adjustment among the parties affected by the Inter-Creditor Dispute that will eliminate the risk associated with the continuation of the Inter-Creditor Dispute with respect to the issues subject to such Potential Settlement.
16.02. Voting with Respect to the Potential Settlement. Each holder of an Allowed Claim in Classes ARA-Notes, ACC-SnrNotes, ACC-Trade, ACC-Uns, FVHC–Notes, and OLYParent-Notes that is entitled to vote on the Plan pursuant to Article IV of the Plan shall be entitled to vote separately to accept or reject the Potential Settlements as provided below and in such order as is entered by the Bankruptcy Court establishing procedures with respect to the solicitation and tabulation of votes to accept or reject the Plan, or any other order or orders of the Bankruptcy Court. Acceptance of the Potential Settlements will be determined pursuant to Section 1126 of the Bankruptcy Code.
16.03. Potential Arahova Settlement.
(a) Acceptance. The Potential Arahova Settlement shall be deemed to be an Inter-Creditor Dispute Resolution for purposes of the Plan if it is accepted by Classes ARA-Notes, ACC-Trade, ACC-SnrNotes and ACC-Uns.
(b) Terms. The “Potential Arahova Settlement” shall consist of:
(i) the terms set forth on Schedule AA;
(ii) a release by all other Debtors of any Intercompany Claims or claims in the Inter-Creditor Dispute against the Arahova Debtor Group and by the Arahova Debtor Group of all Intercompany Claims or claims in the Inter-Creditor Dispute against all other Debtors (excluding, in each case, Retained Claims held by the Transferred Joint Venture Entities); provided, however, if the Potential FrontierVision Holdco Settlement is not accepted, then such mutual release shall not extend to the FrontierVision Holdco Debtor Group, and if the Potential
Olympus Parent Settlement is not accepted, then such mutual release shall not extend to the Olympus Parent Debtor Group.
(iii) a waiver by the Arahova Debtor Group of its rights under Section 8.14(g) hereof;
(iv) a waiver of the Arahova Debtor Group of the right to receive Delayed Consideration pursuant to Section 9.03(b) hereof; and
(v) a waiver by the Arahova Debtor Group of its rights to “Clawback” pursuant to Section 9.03(d) hereof.
16.04. Potential FrontierVision Holdco Settlement.
(a) Acceptance. The Potential FrontierVision Holdco Settlement shall be deemed to be an Inter-Creditor Dispute Resolution for purposes of the Plan if both (i) the Potential Arahova Settlement constitutes an Inter-Creditor Dispute Resolution, and (ii) the Potential FrontierVision Holdco Settlement is accepted by Classes FVHC-Notes, ACC-SnrNotes, ACC-Trade and ACC-Uns.
(b) Terms. The “Potential FrontierVision Holdco Settlement” shall consist of:
(i) the terms set forth on Schedule BB;
(ii) a release by all other Debtors of any Intercompany Claims or claims in the Inter-Creditor Dispute against the FrontierVision Holdco Debtor Group and by the FrontierVision Holdco Debtor Group of all Intercompany Claims or claims in the Inter-Creditor Dispute against all other Debtors (excluding, in each case, Retained Claims held by the Transferred Joint Venture Entities); provided, however, if the Potential Olympus Parent Settlement is not accepted, then such mutual release shall not extend to the Olympus Parent Debtor Group.
(iii) a waiver by the FrontierVision Holdco Debtor Group of its rights under Section 8.14(g) hereof;
(iv) a waiver of the FrontierVision Holdco Debtor Group of the right to receive Delayed Consideration pursuant to Section 9.03(b) hereof; and
(v) a waiver by the FrontierVision Holdco Debtor Group of its rights to “Clawback” pursuant to Section 9.03(d) hereof.
16.05. Potential Olympus Parent Settlement.
(a) Acceptance. The Potential Olympus Parent Settlement shall be deemed to be an Inter-Creditor Dispute Resolution for purposes of the Plan if it is accepted by Classes OLYParent-Notes, ACC-SnrNotes, ACC-Trade and ACC-Uns; provided, however, that the parties’ rights regarding the issue of whether such votes on the
Potential Olympus Parent Settlement should be counted for purposes of determining acceptance of the Potential Olympus Parent Settlement shall be fully preserved and subject to further order of the Bankruptcy Court.
(b) Terms. The “Potential Olympus Parent Settlement” shall consist of:
(i) the terms set forth on Schedule CC;
(ii) a release by all other Debtors of any Intercompany Claims or claims in the Inter-Creditor Dispute against the Olympus Parent Debtor Group and by the Olympus Parent Debtor Group of all Intercompany Claims or claims in the Inter-Creditor Dispute against all other Debtors (excluding, in each case, Retained Claims held by the Transferred Joint Venture Entities); provided, however, if the Potential Arahova Settlement is not accepted, then such mutual release shall not extend to the Arahova Debtor Group or the FrontierVision Holdco Debtor Group, and if the Potential FrontierVision Holdco Settlement is not accepted, then such mutual release shall not extend to the FrontierVision Holdco Debtor Group.
(iii) a waiver by the Olympus Parent Debtor Group of its rights under Section 8.14(g) hereof;
(iv) a waiver of the Olympus Parent Debtor Group of the right to receive Delayed Consideration pursuant to Section 9.03(b) hereof; and
(v) a waiver by the Olympus Parent Debtor Group of its rights to “Clawback” pursuant to Section 9.03(d) hereof.