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SEA CONTAINERS LTD /NY/
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8-K
Aug 4, 8:23 PM ET
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SEA CONTAINERS LTD /NY/ 8-K
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Contents
269
ARTICLE I.
DEFINED TERMS, RULES OF INTERPRETATION, COMPUTATION OF TIME, AND GOVERNING LAW
1. 77/8% Senior Note Claim: That certain Claim set forth in the Proof of Claim numbered 58 Filed by HSBC Bank USA, N.A.
2. 77/8% Senior Notes Due 2008: The $149,750,000 77/8% Senior Notes due February 15, 2008, issued by SCL pursuant to that certain Indenture, dated as of February 1, 1998, between SCL and HSBC Bank USA, National Association, as successor trustee, as supplemented by a First Supplemental Indenture dated as of April 15, 1998.
3. 101/2 % Senior Note Claim: That certain Claim set forth in the Proof of Claim numbered 60 Filed by HSBC Bank USA, N.A.
4. 101/2% Senior Notes Due 2012: The $103,000,000 101/2% Senior Notes due May 15, 2012, issued by SCL pursuant to that certain Indenture, dated as of May 1, 2004, between SCL and HSBC Bank USA, National Association, as successor trustee.
5. 103/4 % Senior Note Claim: That certain Claim set forth in the Proof of Claim numbered 59 Filed by HSBC Bank USA, N.A.
6. 103/4% Senior Notes Due 2006: The $115,000,000 103/4% Senior Notes due October 15, 2006, issued by SCL pursuant to that certain Indenture, dated as of October 1, 1999, between SCL and HSBC Bank USA, National Association, as successor trustee.
7. 121/2% Senior Note Claim: That certain Claim set forth in the Proof of Claim numbered 61 Filed by HSBC Bank USA, N.A.
8. 121/2% Senior Notes Due 2009: The $19,154,000 121/2% Senior Notes due December 1, 2009, issued by SCL pursuant to that certain Indenture, dated as of July 1, 2003, between SCL and HSBC Bank USA, National Association, as successor trustee.
9. 1983 Pension Scheme: The Sea Containers 1983 Pension Scheme.
10. 1983 Pension Scheme Claims: Collectively, those certain Claims set forth in the Proofs of Claim numbered 55, 56, 57, 83, 84, and 85 Filed by the 1983 Pension Scheme Trustees acting for the 1983 Pension Scheme.
11. 1983 Pension Scheme Trustees: The trustees for the 1983 Pension Scheme.
12. 1990 Pension Scheme: The Sea Containers 1990 Pension Scheme.
13. 1990 Pension Scheme Claims: Those certain Claims set forth in the Proofs of Claim numbered 73, 74, 75, 136, 137, and 138 Filed by the 1990 Pension Scheme Trustees acting for the 1990 Pension Scheme.
14. 1990 Pension Scheme Trustees: The trustees for the 1990 Pension Scheme.
15. Accrued Professional Compensation: At any given moment, all accrued fees and expenses (including success fees) for services rendered by all Professionals through and including the Effective Date, to the extent such fees and expenses have not been paid and regardless of whether a fee application has been Filed for such fees and expenses. To the extent there is a Final Order denying some or all of a Professional’s fees or expenses, such denied amounts shall no longer be considered Accrued Professional Compensation.
16. Administrative Claim: A Claim for costs and expenses of administration pursuant to sections 503(b), 507(a)(2), 507(b), or 1114(e)(2) of the Bankruptcy Code, including: (a) the actual and necessary costs and expenses incurred after the Petition Date and through the Effective Date of preserving the Estates and operating the businesses of the Debtors (such as wages, salaries or commissions for services, and payments for goods and other services and leased premises); (b) compensation for legal, financial advisory, accounting, and other services and reimbursement of expenses Allowed pursuant to sections 328, 330(a), or 331 of the Bankruptcy Code or otherwise for the period commencing on the Petition Date and ending on the Confirmation Date; (c) all fees and charges assessed against the Estates pursuant to chapter 123 of Title 28 United States Code, 28 U.S.C. §§ 1911 through 1930; and (d) all requests for compensation or expense reimbursement for making a substantial contribution in the Chapter 11 Cases pursuant to sections 503(b)(3), (4), and (5) of the Bankruptcy Code.
B. Rules of Interpretation and Computation of Time:
1. Rules of Interpretation: For purposes of the Plan: (a) whenever from the context it is appropriate, each term, whether stated in 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 the neuter gender; (b) unless otherwise specified, any reference herein to a contract, instrument, release, indenture, or other agreement or document being in a particular form or on particular terms and conditions means that such document shall be substantially in such form or substantially on such terms and conditions; (c) unless otherwise specified, any reference herein to an existing document, schedule, or exhibit, whether or not Filed, shall mean such document, schedule, or exhibit, as it may have been or may be amended, modified, or supplemented; (d) any reference to an Entity as a Holder of a Claim or Interest includes that Entity’s successors and assigns; (e) unless otherwise specified, all references herein to “Articles” are references to Articles hereof or hereto; (f) unless otherwise specified, all references herein to exhibits are references to exhibits in the Plan Supplement; (g) the words “herein,” “hereof,” and “hereto” refer to the Plan in its entirety rather than to a particular portion of the Plan; (h) subject to the provisions of any contract, certificate of incorporation, bylaw, instrument, release, or other agreement or document entered into in connection with the Plan, the rights and obligations arising pursuant to the Plan shall be governed by, and construed and enforced in accordance with applicable federal law, including the Bankruptcy Code and Bankruptcy Rules; (i) captions and headings to Articles are inserted for convenience of reference only and are not intended to be a part of or to affect the interpretation of the Plan; (j) unless otherwise set forth in the Plan, the rules of construction set forth in section 102 of the Bankruptcy Code shall apply; provided, however, the rule of construction set forth in section 102(5) of the Bankruptcy Code shall not apply; (k) any term used in capitalized form herein that is not otherwise defined but that is used in the Bankruptcy Code or the Bankruptcy Rules shall have the meaning assigned to such term in the Bankruptcy Code or the Bankruptcy Rules, as applicable; (l) all references to docket numbers of documents Filed in the Chapter 11 Cases are references to the docket numbers under the Bankruptcy Court’s CM/ECF system; and (m) all references to statutes, regulations, orders, rules of courts, and the like shall mean as amended from time to time, as applicable to the Chapter 11 Cases, unless otherwise stated.
2. Computation of Time. In computing any period of time prescribed or allowed hereby, the provisions of Bankruptcy Rule 9006(a) shall apply.
C. Reference to Monetary Figures: All references in the Plan to monetary figures shall refer to currency of the United States of America, unless otherwise expressly provided.
ARTICLE II.
ADMINISTRATIVE AND PRIORITY TAX CLAIMS
A. DIP Facility Claim: In full satisfaction, settlement, release, and discharge of and in exchange for the Allowed DIP Facility Claim, on the Effective Date, the DIP Facility Claim shall be paid in full in Cash by SCL with proceeds of the Exit Facility.
B. Administrative Claims: Subject to the provisions of sections 328, 330(a), and 331 of the Bankruptcy Code, in full satisfaction, settlement, release, and discharge of and in exchange for each Allowed Administrative Claim, including the Equalization Determination Costs, each Holder thereof shall be paid the full unpaid amount of such Claim in Cash in accordance with the terms of the applicable contract, if any, (1) on or as soon as reasonably practicable after the Effective Date, (2) if such Claim is Allowed after the Effective Date, on or as soon as reasonably practicable after the date such Claim is Allowed, or (3) upon such other terms as may be agreed upon by the Debtors and such Holder or otherwise upon an order of the Bankruptcy Court; provided, however, that the Allowed Pension Schemes Administrative Claims shall not be treated as set forth above. With respect to the Allowed Pension Schemes Administrative Claims, the unpaid portion, if any, of the Allowed Pension Schemes Administrative Claims shall be paid within five days of receipt of court approval of the Pension Schemes Settlement Agreement.
C. Priority Tax Claims: In full satisfaction, settlement, release, and discharge of and in exchange for each Allowed Priority Tax Claim, each Holder thereof shall be paid (i) in full in Cash on the Distribution Date or (ii) Cash or Cash Equivalents in an amount agreed to by the Debtors or the Plan Administrator, as applicable, and such Holder; provided, however, that such parties may further agree for the payment of such Allowed Priority Tax Claim at a later date.
ARTICLE III. CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS
A. Classification of Claims and Interests: All Claims and Interests, except DIP Facility Claims, Administrative Claims, and Priority Tax Claims, are classified as listed below. A Claim or Interest is classified in a particular Class only to the extent that the Claim or Interest qualifies within the description of that Class and is classified in a different Class to the extent that any portion of the Claim or Interest qualifies within the description of such different Class. A Claim or Interest is classified in a particular Class for the purpose of receiving distributions pursuant to the Plan only to the extent that such Claim or Interest is an Allowed Claim in that Class and has not been paid, released, or otherwise satisfied prior to the Effective Date.
1. Class Identification: Below is a chart assigning each Class a letter and a number for purposes of identifying each separate Class:
B. Treatment of Classes of Claims and Interests: To the extent a Class contains Allowed Claims with respect to a particular Debtor, the treatment provided to each Class for distribution purposes is specified below.
1. Class 1—Other Secured Claims:
a. Classification: Class 1 consists of all Other Secured Claims.
b. Treatment: The legal, equitable and contractual rights of the Holders of Allowed Class 1 Other Secured Claims are unaltered by the Plan. Unless otherwise agreed to by the Holders of the Allowed Class 1 Other Secured Claims and the Debtors, in full satisfaction, settlement, release, and discharge of and in exchange for the Allowed Secured Claim in Class 1, each Holder thereof shall be: (i) paid in full in Cash; (ii) satisfied in full by a return to such Holder of the collateral securing such Allowed Claim, without representation or warranty by or recourse against the Debtors,
Reorganized SCL or Newco; or (iii) treated in any other manner such that the Claim shall otherwise be rendered Unimpaired pursuant to section 1124 of the Bankruptcy Code.
c. Voting: Class 1 is Unimpaired, and the Holders of Class 1 Claims are conclusively deemed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, the Holders of Class 1 Claims are not entitled to vote to accept or reject the Plan.
2. Class 2A—SCL Other Priority Claims:
a. Classification: Class 2A consists of all Other Priority Claims against SCL.
b. Treatment: The legal, equitable and contractual rights of the Holders of Allowed Class 2A SCL Other Priority Claims are unaltered by the Plan. Unless otherwise agreed to by the Holders of the Allowed Class 2A SCL Other Priority Claims and the Debtors, in full satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed SCL Other Priority Claim in Class 2A, each Holder thereof shall be paid in full in Cash or Cash Equivalents on the Effective Date or as soon practicable thereafter.
c. Voting: Class 2A is Unimpaired, and the Holders of Class 2A Claims are conclusively deemed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, the Holders of Class 2A Claims are therefore not entitled to vote to accept or reject the Plan.
3. Class 2B—SCL Other Unsecured Claims:
a. Classification: Class 2B consists of all Other Unsecured Claims against SCL.
b. Treatment: In full satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class 2B Claim, each Holder thereof shall receive its Pro Rata share of the SCL Unsecured Distribution.
c. Voting: Class 2B is Impaired, and Holders of Class 2B Claims are entitled to vote to accept or reject the Plan.
4. Class 2C—SCL Pension Schemes Claims:
a. Classification: Class 2C consists of all Pension Schemes Claims against SCL.
b. Treatment: In full satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Claim in Class 2C, each Holder thereof shall be treated and receive the consideration as set forth in the Pension Schemes Settlement Agreement, including, without limitation, each Holder’s Pro Rata share of the SCL Unsecured Distribution on account of Allowed Pension Schemes Unsecured Claims.
c. Voting: Class 2C is Impaired, and Holders of Class 2C Claims are entitled to vote to accept or reject the Plan.
5. Class 3A—SCSL Other Unsecured Claims:
a. Classification: Class 3A consists of all Other Unsecured Claims against SCSL. For the avoidance of doubt, SCSL Other Unsecured Claims does not include Pension Schemes Claims, Senior Note Claims, the Equalization Claim or Equalization-Related Employee Claims.
b. Treatment: In full satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class 3A Claim, each Holder thereof shall be treated and receive its Pro Rata share of the SCSL Unsecured Distribution.
c. Voting: Class 3A is Impaired, and Holders of Class 3A Claims are entitled to vote to accept or reject the Plan.
6. Class 3B— SCSL Pension Schemes Claims:
a. Classification: Class 3B consists of all Pension Schemes Claims against SCSL.
b. Treatment: In full satisfaction, settlement, release, and discharge of and in exchange for each and every Claim in Class 3B, each Holder thereof shall be treated and receive the consideration as set forth in the Pension Schemes Settlement Agreement, including, without limitation, each Holder’s Pro Rata share of the SCL Unsecured Distribution on account of the Allowed Pension Schemes Unsecured Claims.
c. Voting: Class 3B is Impaired, and Holders of Class 3B Claims are entitled to vote to accept or reject the Plan.
7. Class 4A—SCC Pension Schemes Claims:
a. Classification: Class 4A consists of all Pension Schemes Claims against SCC.
b. Treatment: In full satisfaction, settlement, release, and discharge of and in exchange for each and every Claim in Class 4A, each Holder thereof shall be treated and receive the consideration as set forth in the Pension Schemes Settlement Agreement, including, without limitation, each Holder’s Pro Rata share of the SCL Unsecured Distribution on account of the Allowed Pension Schemes Unsecured Claims.
c. Voting: Class 4A is Impaired, and Holders of Class 4A Claims are entitled to vote to accept or reject the Plan.
8. Class 4B—SCC Interests:
a. Classification: Class 4B consists of all Interests in SCC.
b. Treatment: Class 4B Interests will be Reinstated and the legal, equitable and contractual rights of the Holders of Allowed Class 4B SCC Interests shall be unaltered by the Plan.
c. Voting: Class 4B is Unimpaired, and Holders of Class 4 Claims are conclusively deemed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. The Holders of Class 4B Interests are therefore not entitled to vote to accept or reject the Plan.
9. Class 5—SCL Common Stock Interests:
a. Classification: Class 5 consists of all Common Stock Interests in SCL.
b. Treatment: Each Holder of a Common Stock Interest in SCL shall not receive any distribution under the Plan on account of such interest.
c. Voting: Class 5 is Impaired, and Holders of Class 5 Interests are conclusively deemed to reject the Plan. Holders of Class 5 Interests are therefore not entitled to vote to accept or reject the Plan.
C. Subordination: The classification and treatment of all Claims hereunder conforms with contractual, legal and equitable subordination rights relating thereto, including the treatment of any Securities-related claims under section 510(b) of the Bankruptcy Code, and any and all rights shall be settled, compromised and released pursuant hereto.
D. Treatment of Intercompany Claims: Except as otherwise set forth herein, there shall be no distributions on account of Intercompany Claims, including the Services Claim. Pursuant to Sections 1126(f) and 1126(g) of the Bankruptcy Code, Holders of Intercompany Claims against any Debtor, including the Services Claim, are not entitled to vote to accept or reject the Plan.
E. Intercompany Interests: Intercompany Interests will be Reinstated in order to implement the Plan.
F. Special Provisions Governing Unimpaired Claims: Except as otherwise provided herein, nothing under the Plan shall affect the Debtors’ or Newco’s rights in respect of any
Unimpaired Claims, including, without limitation, all rights in respect of legal and equitable defenses to or setoffs or recoupments against any such Unimpaired Claims.
G. Discharge of Claims and Interests: Except as otherwise provided herein, on the Effective Date and effective as of the Effective Date: (1) the rights afforded in the Plan and the treatment of all Claims and Interests shall be in exchange for and in complete satisfaction, discharge, and release of all Claims and Interests of any nature whatsoever, including any interest accrued on such Claims from and after the Petition Date, against the Debtors or any of their assets, properties or Estates; (2) the Plan shall bind all Holders of Claims and Interests, notwithstanding whether any such Holders (a) Filed a Proof of Claim or (b) failed to vote to accept or reject the Plan or voted to reject the Plan; (3) all Claims and Interests shall be satisfied, discharged, and released in full (except to the extent that the Plan expressly provides for the retention or Reinstatement of such Interests), and the Debtors’ liability with respect thereto shall be extinguished completely, including any liability of the kind specified under section 502(g) of the Bankruptcy Code; and (4) all Persons and Entities shall be precluded from asserting against the Debtors, the Debtors’ Estates, Newco, Reorganized SCL, Reorganized SCSL, Reorganized SCC, their successors and assigns, their assets and properties, any other Claims or Interests based upon any documents, instruments, or any act or omission, transaction or other activity of any kind or nature that occurred prior to the Effective Date. Notwithstanding anything contained in this ARTICLE III.G: (a) the discharge or release of the Pension Schemes Claims shall be consistent with the treatment set forth in the Pension Schemes Settlement Agreement; and (b) solely with respect to the Pension Schemes Claims, the releases and discharges in this ARTICLE III.G shall be limited to the limited extent necessary to ensure to the reasonable satisfaction of the Pension Schemes Trustees that each of the Pension Schemes is eligible to enter the Pension Protection Fund and is able to trigger Pension Protection Fund assessment period; provided that in all events, notwithstanding such limitation, the Pension Schemes’ sole recourse for recovery on the Pension Schemes Claims, and their sole satisfaction of such Claims, shall be their Pro Rata share of the SCL Unsecured Distribution with respect to the Allowed Pension Schemes Unsecured Claims, the Allowed Pension Schemes Administrative Claims, the Equalization Claim Reserve, and the Equalization Determination Costs Reserve, as applicable. Furthermore, the Pension Schemes Trustees shall not be entitled to, and hereby waive, any right to any additional recovery from the Debtors, Reorganized SCL, Reorganized SCSL, Newco, the Equalization Trust, the Non-Debtor Subsidiary Trust, any Debtor Releasee, and any Exculpated Party.
H. Acceptance or Rejection of the Plan
1. Presumed Acceptance of Plan: Classes 1, 2A, and 4B are Unimpaired under the Plan and are, therefore, presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, such Classes are not entitled to vote on the Plan and the vote of such Holders of Claims shall not be solicited.
2. Voting Classes: Each Holder of an Allowed Claim as of the Voting Record Date in each of Classes 2B, 2C, 3A, 3B, and 4A shall be entitled to vote to accept or reject the Plan.
3. Acceptance by Impaired Classes of Claims: Pursuant to section 1126(c) of the Bankruptcy Code and except as otherwise provided in section 1126(e) of the Bankruptcy Code, an Impaired Class of Claims has accepted the Plan if the Holders of at least two-thirds in dollar amount and more than one-half in number of the Allowed Claims in such Class actually voting have voted to accept the Plan.
4. Presumed Rejection of the Plan: Class 5 is Impaired and Holders of Class 5 Claims and Interests shall receive no distributions under the Plan on account of their Claims and Interests and are therefore, presumed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code. Therefore, Holders of Class 5 Claims and Interests are not entitled to vote on the Plan and the vote of such Holders shall not be solicited.
5. Confirmation Pursuant to Sections 1129(a)(10) and 1129(b) of the Bankruptcy Code: Section 1129(a)(10) of the Bankruptcy Code shall be satisfied for purposes of Confirmation by acceptance of the Plan by an Impaired Class. The Debtors request Confirmation of the Plan pursuant to section 1129(b) of the Bankruptcy Code with respect to any Impaired Class that does not accept the Plan pursuant to section 1126 of the Bankruptcy Code. The Debtors reserve the right to modify the Plan and seek Confirmation consistent with the Bankruptcy Code.
6. Controversy Concerning Impairment: If a controversy arises as to whether any Claims, or any Class of Claims, are Impaired, the Bankruptcy Court shall, after notice and a hearing, determine such controversy on or before the Confirmation Date.
7. Voting on Plan and Bermuda Scheme of Arrangement: The Ballots sent to certain creditors of SCL provide for dual voting on the Plan and (by way of special proxy, if required) the Bermuda Scheme of Arrangement. Voters have the option of voting either in favor of both the Plan and Bermuda Scheme of Arrangement or against both the Plan and the Bermuda Scheme of Arrangement. Creditors wishing to vote on the Bermuda Scheme of Arrangement in a way not contemplated by the Ballots may contact SCL and receive a special proxy to do so. If a Creditor of SCL did not file a Proof of Claim in the Chapter 11 Cases prior to the Bar Date, and its failure to do so was not the result of willful default or lack of reasonable diligence as determined by the chairman of the Bermuda meeting of Bermuda Scheme Creditors in his or her sole discretion, such Creditor may vote on the Bermuda Scheme of Arrangement prior to the Voting Deadline, either by submitting a proxy or by voting in person at the Bermuda meeting of Bermuda Scheme Creditors, provided that such Creditor submits a voting form or form of proxy to the JPLs on or before the Voting Deadline.
8. Voting on Plan and U.K. Scheme of Arrangement: The Ballots sent to the 1990 Pension Scheme Trustees and the 1983 Pension Scheme Trustees (on account of their SCSL Pension Schemes Claims) and Holders of SCSL Other Unsecured Claims provide for dual voting on the Plan and the U.K. Scheme of Arrangement. Voters have the option of voting either in favor of both the Plan and U.K. Scheme of Arrangement or against both the Plan and the U.K. Scheme of Arrangement. Creditors wishing to vote on the U.K. Scheme of Arrangement in a way not contemplated by the Ballot may contact SCSL and receive a special proxy to do so. If a Creditor of SCSL did not file a Proof of Claim in the Chapter 11 Cases prior to the Bar Date, and its failure to do so was not the result of willful default or lack of reasonable diligence, as determined by the chairman of the U.K. meeting of U.K. Scheme Creditors in his or her sole discretion, such Creditor may vote on the U.K. Scheme of Arrangement prior to the Voting Deadline, either by submitting a proxy or by voting in person at the meeting of creditors, provided that such Creditor submits a voting form or form of proxy to SCSL on or before the Voting Deadline.
I. No Duplication of Claims or Distributions: All Claims scheduled by or Filed against the Debtors in the Chapter 11 Cases on or before the Bar Date are deemed to have been submitted against those Debtors under the U.K. Scheme of Arrangement or the Bermuda Scheme of Arrangement to the extent the U.K. Scheme of Arrangement or the Bermuda Scheme of Arrangement purports to compromise such Claims. Any holder of an Allowed Claim that receives, under the U.K. Scheme of Arrangement or the Bermuda Scheme of Arrangement, distribution of Cash or other property on account of such Claim, shall not receive any distribution under the Plan on account of such Claim. Any holder of an Allowed Claim that receives under the Plan distribution of Cash or other property on account of such Claim shall not receive any distribution under the U.K. Scheme of Arrangement or the Bermuda Scheme of Arrangement on account of such Claim. Notwithstanding the foregoing, the Pension Scheme Trustees will each receive distributions pursuant to the Plan as set forth herein in addition to a distribution of £1 each in the U.K. Scheme of Arrangement. The process of adjudicating and allowing Claims shall be conducted in the Bankruptcy Court and shall bind all Creditors (except
those who are qualified to submit Claims in the Bermuda Scheme of Arrangement or the U.K. Scheme of Arrangement only in accordance with ARTICLE III.H.7 or ARTICLE III.H.8 hereof, which such Claims will be adjudicated pursuant to the mechanism set forth in the Bermuda Scheme of Arrangement or the U.K. Scheme of Arrangement, as applicable).
ARTICLE IV.
PROVISIONS FOR IMPLEMENTATION OF THE PLAN
A. Corporate Existence: Except to the extent that a Debtor ceases to exist pursuant hereto, each Debtor shall continue to exist after the Effective Date as a separate corporate entity, with all the powers of a corporation pursuant to the applicable law in the jurisdiction in which each applicable Debtor is incorporated or formed and pursuant to the respective certificate of incorporation and byelaws in effect prior to the Effective Date, except to the extent such certificate of incorporation, byelaws and other constitutional documents are amended by the Plan or otherwise and, to the extent such documents are amended, such documents are deemed to be authorized pursuant hereto and without the need for any other approvals, authorizations, actions or consents.
B. Sources of Consideration for Plan Distributions: The Plan and the Bermuda Scheme of Arrangement contemplate (i) the transfer of the Container Interests to Newco in consideration for Newco Equity and Cash, (ii) the issuance of the Newco Repatriation Note to Newco, reflecting a loan from Newco to enable Reorganized SCL to satisfy the balance of the DIP Facility and fund its wind-down costs, (iii) the distribution of the SCL Unsecured Distribution to Holders of Allowed SCL Other Unsecured Claims and Holders of Allowed Pension Schemes Unsecured Claims, (iv) the distribution of the SCSL Unsecured Distribution to Holders of SCSL Other Unsecured Claims, and (v) the establishment of the Equalization Trust, the Non-Debtor Subsidiary Trust and the Equalization Determination Costs Reserve.
1. Formation of Newco. Prior to the Effective Date, the Debtors shall take the steps necessary so that Newco shall be duly formed and come into existence as a valid and legally existing Bermudian corporation. The specific formation documents with respect to Newco shall be included in the Plan Supplement.
2. Transfer of the Container Interests to Newco: After the formation of Newco, on the Effective Date and subject to an order by the Bermuda Court authorizing such action, pursuant to the Business Transfer Agreement and in accordance with section 1123(a)(5)(B) of the Bankruptcy Code, the Debtors will transfer and assign all rights, title, and interests in the Container Interests to Newco. Except as expressly provided herein or in the Confirmation Order, the Container Interests shall vest in Newco free and clear of any Claims or Liens.
3. Issuance of Newco Equity: On or before the Effective Date or as soon as reasonably practicable thereafter, Newco shall issue all Newco Equity, notes, instruments, Certificates and other documents required to be issued pursuant to the Plan and the Bermuda Scheme of Arrangement. The Plan Administrator shall be authorized, among other things, to distribute Newco Equity on a Pro Rata basis to Holders of Allowed SCL Other Unsecured Claims and Holders of Allowed Pension Schemes Unsecured Claims.
a. Securities Registration Exemption. Pursuant to section 1145 of the Bankruptcy Code, the offering, issuance, and distribution of any Securities contemplated by the Plan and any and all settlement agreements incorporated therein, including the Newco Equity, shall be exempt from, among other things, the registration requirements of section 5 of the Securities Act and any other applicable state or local law requiring registration prior to the offering, issuance, distribution, or sale of Securities. Any Securities issued under the Plan, including Newco Equity, will be issued under section 1145 of the Bankruptcy Code, will be freely tradable by the recipients thereof, and subject to (i) the provisions of section 1145(b)(1) of the Bankruptcy Code relating to the definition of an underwriter in section 2(a)(11) of the Securities Act, and compliance with any rules and regulations of the Securities and Exchange Commission, if any, applicable at the time of any future transfer of such Securities or instruments; (ii) the restrictions, if any, on the transferability of such Securities and instruments, under applicable law or otherwise; and (iii) applicable regulatory approval.
4. Exit Facility: On the Effective Date, Newco shall enter into the Exit Facility (a) in part, to obtain the funds necessary to acquire the Container Interests from SCL at fair value and otherwise, to provide a loan to Reorganized SCL to enable Reorganized SCL to satisfy the DIP Facility, (b) to pay all fees and expenses incurred in connection with the Exit Facility, and (c) for working capital, capital expenditures and other lawful corporate purposes of Newco. Newco may use the Exit Facility for any purpose permitted thereunder. Confirmation of the Plan shall be deemed approval of the Exit Facility (including the transactions contemplated thereby, such as any supplementation or additional syndication of the Exit Facility, and all actions to be taken, undertakings to be made, and obligations to be incurred in connection therewith, including the payment of all fees, indemnities, and expenses provided for therein) and authorization for Newco to enter into and execute the Exit Facility documents and such other documents as the Exit Facility Lenders may reasonably require to effectuate the treatment afforded to such lenders pursuant to the Exit Facility, subject to such modifications as Newco may deem to be reasonably necessary.
8. Payment of Post-Emergence Costs: The Plan Administrator will pay the Post-Emergence Costs using Cash at Reorganized SCL. Any entity seeking reimbursement of Post-Emergence Costs shall submit any invoices, statements or bills, along with a request for payment setting forth the basis of such reimbursement, to the Plan Administrator; provided, however, that the JPLs, the Equalization Trustees, and the Non-Debtor Subsidiary Trustees must submit all
invoices or requests for payment no later than 60 days after the liquidation of Reorganized SCL, dissolution of the Equalization Trust, or dissolution of the Non-Debtor Subsidiary Trust, as applicable. Within 30 days following receipt of a request for payment, the Plan Administrator shall disburse payment to the applicable requesting party to the extent the Plan Administrator is satisfied that the requested reimbursement is reasonably characterized as Post-Emergence Costs.
C. Corporate Governance, Directors and Officers, and Corporate Action:
1. Corporate Governance.
a. Newco.
b. Reorganized SCL.
c. Reorganized SCSL.
d. Reorganized SCC and the Non-Debtor Subsidiaries.
2. Corporate Action.
a. Prior to or on the Effective Date (as appropriate), all matters provided for hereunder that would otherwise require approval of the shareholders or directors of the Debtors or Newco shall be deemed to have been so approved and shall be in effect prior to or on the Effective Date (as appropriate) pursuant to applicable law and without any requirement of further action by the shareholders or directors of the Debtors, or the need for any approvals, authorizations, actions or consents.
b. The Debtors or Newco, as applicable may take all actions to execute, deliver, File or record such contracts, instruments, releases and other agreements or documents and take such actions as may be necessary or appropriate to effectuate and implement the provisions of the Plan in accordance with section 1142(a) of the Bankruptcy Code, including, without limitation, the distribution of Newco Equity to be issued pursuant hereto, the adoption and filing (as necessary) of the new organizational documents, the appointment of directors, officers, managers for Newco, consummation of the Exit Facility, and all actions contemplated thereby, without the need for any approvals, authorizations, actions or consents except for those expressly required pursuant hereto. The secretary and any assistant secretary of each Debtor shall be authorized to certify or attest to any of the foregoing actions.
D. GE SeaCo Definitive Settlement Documents and Pension Schemes Settlement Agreement: The Plan shall be implemented by the Plan Administrator in a manner that is consistent with the GE SeaCo Definitive Settlement Documents and the Pension Schemes Settlement Agreement. To the extent there are any discrepancies between the terms of the Plan and the terms contained in the GE SeaCo Definitive Settlement Documents or the Pension Schemes Settlement Agreement, the terms of the GE SeaCo Definitive Settlement Documents or the Pension Schemes Settlement Agreement, as applicable, shall govern. Further, the Confirmation Order shall constitute an order of the Bankruptcy Court approving the GE SeaCo Definitive Settlement Documents.
E. Resolution of Intercompany Claims: On and after the Effective Date, the Plan Administrator, in consultation and coordination with the Non-Debtor Subsidiaries and any
administrators or liquidators thereof, is authorized to forgive, resolve, or compromise Intercompany Claims by, against, and among Non-Debtor Subsidiaries and to take such actions as are necessary and otherwise assist in the wind down and liquidation of certain Non-Debtor Subsidiaries, all in accordance with applicable law.
F. Implementation of the Plan in Bermuda and the United Kingdom: The Plan Administrator and Reorganized SCL shall have the authority to take any actions reasonably necessary or appropriate to implement the Plan in Bermuda or any other foreign jurisdiction, including by and through the Bermuda Scheme of Arrangement, transferring the Container Interests to Newco, coordinating with the JPLs and the Non-Debtor Subsidiaries, and appearing before the Bermuda Court and seeking any reasonably necessary or appropriate relief to implement or carry out the Plan in Bermuda, including cancellation, annulment, and extinguishment of Subordinated Securities Claims and SCL Interests in Bermuda. The Plan Administrator and Reorganized SCSL shall have the authority to take any actions reasonably necessary or appropriate to implement the Plan in the United Kingdom or any other foreign jurisdiction, including by and through the U.K. Scheme of Arrangement, coordinating with the liquidators of SCSL, and appearing before the English Court and seeking any reasonably necessary or appropriate relief to implement or carry out the Plan in the U.K.
G. Litigation and Resolution of Equalization Claim: On the Effective Date, the ELR will assume responsibility for managing the litigation in respect of the Equalization Claim on behalf of Reorganized SCL in the English Court or other relevant court of competent jurisdiction. The ELR will be an agent of the Plan Administrator and will be authorized to manage the litigation in respect of the Equalization Claim and to pursue and consummate settlement discussions with the Pension Schemes regarding the Equalization Claim, in either case as directed by the Plan Administrator or the liquidators.
H. Implementation of the Pension Schemes Settlement Agreement: Pursuant to the Pension Schemes Settlement Agreement, one or more of the Debtors’ Affiliates that are participating employers in the Pension Schemes, including, without limitation, SeaCat Scotland Guernsey Limited, Sea Containers Ferries Scotland Limited, and SC Maritime Limited, may institute liquidation proceedings or schemes of arrangement under section 899 of the U.K. Companies Act 2006 (as successor to section 425 of the U.K. Companies Act 1985 by operation of section 1297 of the U.K. Companies Act 2006), as applicable, and may take such other actions as necessary to ensure implementation of the Pension Schemes Settlement Agreement and compliance with the conditions thereof.
I. Vesting of the Assets On or After the Effective Date: Except as otherwise provided herein or in any agreement, instrument or other document relating thereto, on or after the Effective Date, all property of each Estate and any property acquired by any of the Debtors pursuant hereto shall vest in Newco, Reorganized SCL, Reorganized SCSL, Reorganized SCC, the Equalization Trust or the Non-Debtor Subsidiary Trust, as applicable, free and clear of all
Liens, claims, charges or other encumbrances. Except as provided herein, on and after the Effective Date, Newco, Reorganized SCL, Reorganized SCSL, or Reorganized SCC, as applicable, may operate its business and may use, acquire, or dispose of property and compromise or settle any post-Confirmation Claims, without supervision or approval by the Bankruptcy Court and free of any restrictions of the Bankruptcy Code or Bankruptcy Rules, other than those restrictions expressly imposed by the Plan and the Confirmation Order.
J. Release of Liens, Claims and Equity Interests: Except as otherwise specifically provided herein or in any contract, instrument, release or other agreement or document entered into or delivered in connection with the Plan including, without limitation, the Pension Schemes Settlement Agreement, on the Effective Date and concurrently with the applicable distributions made pursuant to ARTICLE IX hereof, all Claims, Interests, mortgages, deeds of trust, Liens, pledges or other security interests against the property of any Estate shall be fully released and discharged.
K. Cancellation of Debt and Equity Interests and Related Obligations: On the Effective Date, except as otherwise specifically provided for herein: (1) all Equity Interests, the Indentures, the Senior Notes, and any other Certificate, note, instrument, bond, indenture, purchase right, option, warrant, or other documents directly or indirectly evidencing or creating any debt interests in the Debtors, their Affiliates, subsidiaries, and their successors in interests giving rise to any Claim or Interest (except such Certificates, notes, other instruments or documents evidencing indebtedness or obligations of the Debtors that are Reinstated pursuant to the Plan), shall be canceled and discharged solely as to the Debtors, their Affiliates, subsidiaries, and successors in interests and (2) the obligations of the Debtors, their Affiliates, subsidiaries, and successors in interest pursuant, relating, or pertaining to the Indentures, the Senior Notes, any other agreements, indentures, certificates of designation, bylaws, or certificate or articles of incorporation or similar documents governing Equity Interests and any other Certificates, notes, instruments, bonds, indentures, purchase rights, options, warrants, or other documents evidencing or creating any debt interests in the Debtors, their Affiliates, subsidiaries, and their successors in interests (except such agreements or Certificates, notes or other instruments evidencing debt interests of the Debtors that are specifically Reinstated pursuant to the Plan) shall be fully released and discharged; provided, however, that notwithstanding Confirmation, the Indentures, any such other indenture or agreement that governs the rights of the Holder of a Claim shall continue in effect solely for purposes of: (w) allowing Holders to receive distributions under the Plan; (x) allowing and preserving the rights of the Indenture Trustee and any other Servicer to make distributions on account of such Claims as provided in ARTICLE IX; (y) permitting the Indenture Trustee or any other Servicer to maintain any rights and Liens, including the Indenture Trustee Charging Lien, it may have against property other than the Debtors’, Newco’s, or the Reorganized Debtors’ property for fees, costs, and expenses pursuant to such indenture or other agreement; and (z) governing the rights and obligations of non-Debtor parties to such agreements vis-à-vis each other; provided further, however, that the preceding proviso shall not affect the discharge of Claims or Interests pursuant to the Bankruptcy Code, the Confirmation Order, or the Plan, or result in any expense or liability to the Debtors, Newco, or the Reorganized Debtors. Neither the Debtors, Newco nor the Reorganized Debtors shall have any obligations to any Servicer for any fees, costs, or expenses, except as expressly otherwise provided in the Plan. Nothing in this section shall be construed to discharge any debt owed by or claims against Non-Debtor Subsidiaries, including Intercompany Claims against or
Intercompany Interests in Non-Debtor Subsidiaries, except as otherwise specifically addressed in the Plan.
L. Employee Benefits: On the Effective Date, the Debtors’ existing employee benefit policies, plans and agreements that are not identified in the Plan Supplement and have not been terminated by the Debtors prior to the Effective Date shall terminate pursuant to the Plan. On the Effective Date, all Claims related to such employee benefits shall be deemed satisfied and expunged from the Claims Register as of the Effective Date without any further notice to or action, order, or approval of the Bankruptcy Court.
M. Creation of Professional Fee Escrow Account: On the Effective Date, the Plan Administrator shall establish the Professional Fee Escrow Account and reserve an amount necessary to pay all of the Accrued Professional Compensation.
N. Preservation of Rights of Action:
1. Vesting of Causes of Action: On the Effective Date and in accordance with sections 1123(a)(5)(B) and 1123(b)(3) of the Bankruptcy Code, (a) any Causes of Action that the Debtors may hold against any Entity relating to, arising from, or on account of the Container Interests shall vest in Newco free and clear of all Claims and Interests and (b) any Causes of Action that the Debtors may hold against any Entity relating to, arising from, or on account of the Non-Container Interests shall vest in the Reorganized Debtors free and clear of all Claims and Interests. Except as otherwise provided in the Plan or Confirmation Order, (a) Newco shall have the right to institute, prosecute, abandon, settle, or compromise, as appropriate, any and all Causes of Action relating to, arising from, or on account of the Container Interests, including, without limitation, such Causes of Action listed in the Plan Supplement as transferred to Newco, whether existing as of the Petition Date or thereafter arising, in its sole discretion and without further order of the Bankruptcy Court, in any court or other tribunal, including, without limitation, in an adversary proceeding filed in one or more of the Chapter 11 Cases and (b) the Reorganized Debtors shall have the right to institute, prosecute, abandon, settle, or compromise, as appropriate, any and all Causes of Action relating to, arising from, or on account of the Non-Container Interests, including, without limitation, such Causes of Action listed in the Plan Supplement as retained by the Reorganized Debtors, whether existing as of the Petition Date or thereafter arising, in their sole discretion and without further order of the Bankruptcy Court, in any court or other tribunal, including, without limitation, in an adversary proceeding filed in one or more of the Chapter 11 Cases. Causes of Action relating to, arising from, or on account of the Container Interests and any recoveries therefrom shall remain the sole property of Newco and Holders of Claims shall have no right to any such recovery.
2. Preservation of All Causes of Action Not Expressly Settled or Released: Unless a claim or Cause of Action against a Holder of a Claim or Interest or other Entity is expressly waived, relinquished, released, compromised, or settled in the Plan or any Final Order (including, without limitation, the Confirmation Order), the Debtors expressly reserve such claim or Cause of Action for later adjudication by (a) Newco if such claim or Cause of Action relates to, arises from, or is on account of the Container Interests or (b) the Reorganized Debtors if such claim or Cause of Action relates to, arises from, or is on account of the Non-Container Interests, including, without limitation, claims and Causes of Action not specifically identified or of which
the Debtors may presently be unaware or which may arise or exist by reason of additional facts or circumstances unknown to the Debtors at this time or facts or circumstances that may change or be different from those the Debtors now believe to exist and, therefore, no preclusion doctrine, including, without limitation, the doctrines of res judicata, collateral estoppel, issue preclusion, claim preclusion, waiver, estoppel (judicial, equitable or otherwise), or laches will apply to such claims or Causes of Action upon or after the Confirmation or Consummation of the Plan based on the Disclosure Statement, the Plan or the Confirmation Order, except where such claims or Causes of Action have been expressly waived, relinquished, released, compromised, or settled in the Plan or a Final Order. In addition, Newco or the Reorganized Debtors, as applicable, expressly reserve the right to pursue or adopt any claims or Causes of Action not so waived, relinquished, released, compromised, or settled that are alleged in any lawsuit in which the Debtors are a defendant or an interested party, against any Entity, including the plaintiffs or co-defendants in such lawsuits. Any Entity to whom the Debtors have incurred an obligation (whether on account of services, purchase, sale of goods, or otherwise), or who has received services from the Debtors or a transfer of money or property of the Debtors, or who has transacted business with the Debtors, or leased equipment or property from the Debtors should assume that such obligation, transfer, or transaction may be reviewed by Newco or the Reorganized Debtors, as applicable, subsequent to the Effective Date and may, to the extent not theretofore expressly waived, relinquished, released, compromised, or settled, be the subject of an action after the Effective Date, whether or not: (a) such Entity has Filed a Proof of Claim against the Debtors in the Chapter 11 Cases; (b) such Entity’s Proof of Claim has been objected to; (c) such Entity’s Claim was included in the Debtors’ Schedules; or (d) such Entity’s scheduled Claim has been objected to by the Debtors or has been identified by the Debtors as contingent, unliquidated, or Disputed.
O. Exemption from Certain Transfer Taxes: Pursuant to section 1146(a) of the Bankruptcy Code, any transfers of property pursuant hereto shall not be subject to any stamp tax or other similar tax or governmental assessment in the United States, and the Confirmation Order shall direct the appropriate state or local governmental officials or agents to forgo the collection of any such tax or governmental assessment and to accept for filing and recordation instruments or other documents pursuant to such transfers of property without the payment of any such tax or governmental assessment. Such exemption specifically applies, without limitation, to all documents necessary to evidence and implement the provisions of and the distributions to be made under the Plan.
ARTICLE V. EQUALIZATION TRUST
A. Establishment and Purpose of Equalization Trust: On the Effective Date, Reorganized SCL, acting by the Plan Administrator, shall transfer the Equalization Claim Reserve to the Equalization Trustees. The Equalization Trustees shall, in an expeditious but orderly manner, distribute Newco Equity or the proceeds thereof from the Equalization Claim Reserve to Equalization Trust Claimants in accordance with the Plan and the Equalization Trust Deed and not unduly prolong its duration. The Equalization Trust shall not be deemed a successor in interest of the Debtors for any purpose other than as specifically set forth herein or in the Equalization Trust Deed.
B. Transfer of Assets to the Equalization Trust: Reorganized SCL, acting by the Plan Administrator, will establish the Equalization Trust on behalf of the Equalization Trust Claimants pursuant to the Equalization Trust Deed and shall take all other steps necessary to establish the Equalization Trust. On the Effective Date, and in accordance with and pursuant to the terms of the Plan and sections 1123(a)(5)(B) and 1123(b)(3)(B) of the Bankruptcy Code, Reorganized SCL, acting by the Plan Administrator, will transfer to the Equalization Trustees all of its rights, title and interests in the Equalization Claim Reserve free and clear of any encumbrance, charge, mortgage, pledge, claim, or Lien. The Equalization Trustees shall agree to accept and hold the Equalization Claim Reserve in the Equalization Trust for the benefit of the Equalization Trust Claimants, to be applied for the purposes of and according to the terms of the Equalization Trust and subject to the terms of the Plan and the Equalization Trust Deed. All parties shall execute any documents or other instruments as necessary.
C. Appointment of the Equalization Trustees: On the Effective Date and in accordance with the Equalization Trust Deed, the Equalization Trustees will be appointed, and any successor Equalization Trustee thereafter shall be appointed and serve in accordance with the Equalization Trust Deed. In lieu of two individual Equalization Trustees, a corporate trustee may act as the sole Equalization Trustee if duly appointed pursuant to the Equalization Trust Deed. The Equalization Trustees or any successor thereto will administer the Equalization Trust in accordance with the Equalization Trust Deed.
D. Distributions; Withholding: The Equalization Trustees will make distributions to the Equalization Trust Claimants to satisfy the Equalization Claim or Equalization-Related Employee Claims accepted by the Equalization Trustees in accordance with the Equalization Trust Deed, the Pension Schemes Settlement Agreement, and the Plan, as applicable. The Allowed Equalization Claim shall be paid before payment of Equalization-Related Employee Claims, if any.
E. Trust Expenses: The Equalization Trustees will be reimbursed by Reorganized SCL for the Equalization Trustee Costs. The Pension Schemes will be reimbursed out of the Equalization Determination Costs Reserve for the Equalization Determination Costs.
F. Discharge of Liabilities to Holders of Pension Schemes Claims: The transfer to, vesting in and assumption by the Equalization Trustees of the Equalization Claim Reserve as contemplated herein shall, as of the Effective Date, discharge all obligations and liabilities of and bar recovery or any action against the Debtor Releasees and their respective estates, Affiliates, and subsidiaries, for or in respect of the Equalization Claim and all Equalization-Related Employee Claims against the Debtors, Newco, Reorganized SCL, Reorganized SCSL, Reorganized SCC, or the Non-Debtor Subsidiaries and their respective estates, Affiliates and subsidiaries, as set forth in the Confirmation Order. After confirmation by counsel for the Equalization Trustees that based on the outcome of the litigation to determine the status of the Pension Schemes’ equalization Equalization-Related Employee Claims may potentially exist, the Pension Schemes’ actuary will calculate the potential maximum aggregate amount of such Claims, if any, and thereafter, each Equalization-Related Employee Claim shall be allowed only after such Claim has been determined to be valid by the liquidators of the entities against which such Claim is asserted; provided that the calculation by the Pension Schemes’ actuary shall not constitute an admission of the validity or the amount of any such potential Equalization-Related Employee Claims, and the Debtors, Reorganized SCL, Reorganized SCSL, and the Non-Debtor Subsidiaries fully reserve all rights and defenses with respect to any such potential Claims. Allowed Equalization-Related Employee Claims will be satisfied from the assets of the Equalization Trust, including any indemnity from the Equalization Trust to such entity, as stipulated in the Equalization Trust Deed.
G. Equalization Trust Indemnity Obligations: The Equalization Trustees shall be indemnified out of the assets of the Equalization Trust in respect of:
1. all liabilities and expenses properly incurred by them in the execution or purported execution of the Equalization Trust or of any powers vested in them relating to the Equalization Trust; and
2. all actions, proceedings, costs, expenses, claims, demands, losses, charges, demands, taxes, duties and other liabilities in respect of any matter or thing done or omitted in any way relating to the Equalization Trust, other than liabilities arising as a consequence of fraud or other dishonest conduct, or knowingly or recklessly acting or omitting to act in a manner they knew or ought to have known was in breach of trust or gross negligence.
H. Investment of Trust Funds: The Equalization Trustees have the right to invest or apply the assets in the Equalization Trust as if they were absolutely and beneficially entitled to them, except that the Equalization Trustees’ right to invest or apply the assets is restricted to (1) purchasing or subscribing for stocks, shares, debenture stocks, bearer securities or other investments; (2) placing monies on deposit with a bank, insurance company, building society, finance company or local authority; and (3) giving guaranties, indemnities or undertakings. The Equalization Trustees may also appoint an investment manager and delegate to him or her
investment decisions regarding the assets in the Equalization Trust. The Equalization Trustees will not be liable for any loss or depreciation of any investments, securities, stocks or policies in which any part of the Equalization Trust is placed, or for any delay in making an application or investment, or for the safety of any securities or documents of title deposited by the Equalization Trustees for safe custody, or for any exercise of the powers vested in them (and without prejudice to the generality of the foregoing for any waiver of the rights to any dividends attributable to any shares forming part of the Equalization Trust or the negligence or fraud of any agent employed by the Equalization Trustees), or any other matter, except that an Equalization Trustee will be liable for any losses or liability arising from (a) his or its fraudulent or dishonest conduct, (b) knowingly or recklessly acting or omitting to act in a manner which he knew or ought to have known was in breach of trust; and (c) gross negligence. The Equalization Trustees will not be liable for losses or depreciation of any investments in which any part of the Equalization Trust is placed arising from the acts or defaults of an investment manager who was duly appointed pursuant to the Equalization Trust Deed, so long as the Equalization Trustees have taken reasonable steps to satisfy themselves that the investment manager has the appropriate knowledge and experience for managing investments of the type held by the Equalization Trust.
I. Dissolution of the Equalization Trust: In accordance with the Equalization Trust Deed, the Equalization Trust will be dissolved, all Cash in the Equalization Trust will be transferred to Reorganized SCL, and all Newco Equity in the Equalization Trust will be canceled. The duties, responsibilities and powers of the Equalization Trustees will terminate in accordance with the terms of the Equalization Trust Deed.
J. Excess Trust Assets: Subject to repayment of any claims entitled to priority under the Bermuda Scheme of Arrangement or the liquidation of Reorganized SCL, and payment of the Plan Administrator Costs and the Post-Emergence Costs, to the extent there are any residual assets (including Cash but excluding Newco Equity) remaining at the time the Equalization Trust is dissolved, such excess assets in the Equalization Trust (including Cash but excluding Newco Equity) shall be transferred to Reorganized SCL for: (1) payment of the Newco Repatriation Note and (2) to the extent Cash remains thereafter, distribution in accordance with ARTICLE IX.B.4 hereof. The duties, responsibilities and powers of the Equalization Trustees will terminate in accordance with the terms of the Equalization Trust Deed.
ARTICLE VI. NON-DEBTOR SUBSIDIARY TRUST
A. Establishment and Purpose of the Non-Debtor Subsidiary Trust: On the Effective Date, Reorganized SCL, acting by the Plan Administrator, shall transfer the Non-Debtor Subsidiary Reserve to the Non-Debtor Subsidiary Trustees. The Non-Debtor Subsidiary Trustees shall, in an expeditious but orderly manner, distribute Newco Equity or the proceeds thereof and Cash from the Non-Debtor Subsidiary Reserve to Non-Debtor Subsidiary Trust Claimants in accordance with the Plan and the Non-Debtor Subsidiary Trust Deed and not unduly prolong its duration. The Non-Debtor Subsidiary Trust shall not be deemed a successor in interest of the Debtors for any purpose other than as specifically set forth herein or in the Non-Debtor Subsidiary Trust Deed.
B. Transfer of Assets to the Non-Debtor Subsidiary Trust: Reorganized SCL, acting by the Plan Administrator, will establish the Non-Debtor Subsidiary Trust on behalf of the Non-Debtor Subsidiary Trust Claimants pursuant to the Non-Debtor Subsidiary Trust Deed and shall take all other steps necessary to establish the Non-Debtor Subsidiary Trust. On the Effective Date, and in accordance with and pursuant to the terms of the Plan and sections 1123(a)(5)(B) and 1123(b)(3)(B) of the Bankruptcy Code, Reorganized SCL, acting by the Plan Administrator, will transfer to the Non-Debtor Subsidiary Trustees all of its rights, title and interests in the Non-Debtor Subsidiary Reserve free and clear of any encumbrance, charge, mortgage, pledge, claim, or Lien. The Non-Debtor Subsidiary Trustees shall agree to accept and hold the Non-Debtor Subsidiary Reserve in the Non-Debtor Subsidiary Trust for the benefit of the Non-Debtor Subsidiary Trust Claimants, subject to the terms of the Plan and the Non-Debtor Subsidiary Trust Deed. All parties shall execute any documents or other instruments as necessary to cause title to the Non-Debtor Subsidiary Reserve to be transferred to the Non-Debtor Subsidiary Trustees.
C. Appointment of the Non-Debtor Subsidiary Trustees: On the Effective Date and in accordance with the Non-Debtor Subsidiary Trust Deed, the JPLs will be appointed Non-Debtor Subsidiary Trustees and, thereafter, as approved by order of the Bermuda Court, any successor Non-Debtor Subsidiary Trustee shall be appointed and serve in accordance with the Non-Debtor Subsidiary Trust Deed. In lieu of two individual Non-Debtor Subsidiary Trustees, a corporate trustee may act as the sole Non-Debtor Subsidiary Trustee if duly appointed pursuant to the Non-Debtor Subsidiary Trust Deed. The Non-Debtor Subsidiary Trustees or any successor thereto will administer the Non-Debtor Subsidiary Trust in accordance with the Non-Debtor Subsidiary Trust Deed.
D. Distributions; Withholding: The Non-Debtor Subsidiary Trustees will make distributions to the Non-Debtor Subsidiary Trust Claimants to satisfy Non-Debtor Subsidiary Known Third Party Claims accepted by the Non-Debtor Subsidiary Trustees in accordance with the Non-Debtor Subsidiary Trust Deed and the Plan, as applicable. The Non-Debtor Subsidiary Trustees may withhold from amounts distributable to any Person any and all amounts, determined in the Non-Debtor Subsidiary Trustees’ sole discretion, to be required by the Plan, the Non-Debtor Subsidiary Trust Deed, any law, regulation, rule, ruling, directive, treaty or other governmental requirement.
E. Trust Expenses: The Non-Debtor Subsidiary Trustees will be reimbursed by Reorganized SCL for the Non-Debtor Subsidiary Costs.
F. Non-Debtor Subsidiary Indemnification Obligations: The Non-Debtor Subsidiary Trustees shall be indemnified out of the assets of the Non-Debtor Subsidiary Trust in respect of:
1. all liabilities and expenses properly incurred by them in the execution or purported execution of the Non-Debtor Subsidiary Trust or of any powers vested in them relating to the Non-Debtor Subsidiary Trust, other than liabilities and expenses arising as a consequence of fraud and other dishonest conduct, or knowingly or recklessly acting or omitting to act in a manner they knew or ought to have known was in breach of trust, or gross negligence; and
2. all actions, proceedings, costs, expenses, claims, demands, losses, charges, damages, taxes, duties and other liabilities in respect of any matter or thing done or omitted in
any way relating to the Non-Debtor Subsidiary Trust, other than liabilities arising as a consequence of fraud or other dishonest conduct, or knowingly or recklessly acting or omitting to act in a manner they knew or ought to have known was in breach of trust, or gross negligence.
G. Investment of Trust Funds: The Non-Debtor Subsidiary Trustees have the right to invest or apply the assets in the Non-Debtor Subsidiary Trust as if they were absolutely and beneficially entitled to them, except that the Non-Debtor Subsidiary Trustees’ right to invest or apply the assets is restricted to (1) purchasing or subscribing for stocks, shares, debenture stocks, bearer securities or other investments; (2) placing monies on deposit with a bank, insurance company, building society, finance company or local authority; and (3) giving guaranties, indemnities or undertakings. The Non-Debtor Subsidiary Trustees will not be liable for any loss of, depreciation in or default upon any of the investments, securities, stocks or policies in which all or any part of the Non-Debtor Subsidiary Reserve may at any time be invested or applied, or for any delay in the investment or application of all or any part of the Non-Debtor Subsidiary Reserve, or for the safety of any securities or documents of title deposited by the Non-Debtor Subsidiary Trustees for safe custody, or for the exercise of any power vested in the Non-Debtor Subsidiary Trustees (and without prejudice to the generality of the foregoing for any waiver of the rights to any dividends attributable to any shares forming part of the Non-Debtor Subsidiary Reserve or the negligence or fraud of any agent employed by him or by any other Non-Debtor Subsidiary Trustee), or by reason of any other matter or thing, except that a Non-Debtor Subsidiary Trustee or a director, officer or employee of a corporate trustee shall be liable for any losses arising from: (1) his fraudulent or other dishonest conduct; (2) his knowingly or recklessly acting or omitting to act in a manner which he knew or ought to have known was in breach of trust or (3) gross negligence.
H. Dissolution of the Non-Debtor Subsidiary Trust: On the earlier of: (1) December 31, 2010 or (2) the date falling two days after the date on which each Non-Debtor Subsidiary Trust Claimant has received its proportion of the Non-Debtor Subsidiary Reserve required to satisfy all of its Non-Debtor Subsidiary Known Third Party Claims, the Non-Debtor Subsidiary Trust will be dissolved, all Cash in the Non-Debtor Subsidiary Trust will be transferred to Reorganized SCL, and all Newco Equity in the Non-Debtor Subsidiary Trust will be canceled.
I. Excess Trust Assets: Subject to repayment of any claims entitled to priority under the Bermuda Scheme of Arrangement or the liquidation of Reorganized SCL, and payment of the Plan Administrator Costs and the Post-Emergence Costs, to the extent there are any residual assets (including Cash but excluding Newco Equity) remaining at the time the Non-Debtor Subsidiary Trust is dissolved, such excess assets in the Non-Debtor Subsidiary Trust (including Cash but excluding Newco Equity) shall be transferred to Reorganized SCL for: (i) payment of the Newco Repatriation Note and (ii) to the extent Cash remains, distribution in accordance with ARTICLE IX.B.4 hereof. The duties, responsibilities and powers of the Non-Debtor Subsidiary Trustees will terminate in accordance with the terms of the Non-Debtor Subsidiary Trust Deed.
ARTICLE VII. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
A. Assumption and Rejection of Executory Contracts and Unexpired Leases:
1. Rejection of Executory Contracts and Unexpired Leases: Except as otherwise provided herein, each Executory Contract and Unexpired Lease shall be deemed automatically rejected pursuant to sections 365 and 1123 of the Bankruptcy Code as of the Effective Date, unless any such Executory Contract or Unexpired Lease: (a) is listed on the schedule of “Assumed Executory Contracts and Unexpired Leases” in the Plan Supplement; (b) has been previously assumed by the Debtors by Final Order of the Bankruptcy Court or has been assumed by the Debtors by order of the Bankruptcy Court as of the Effective Date, which order becomes a Final Order after the Effective Date; (c) is the subject of a motion to assume or reject pending as of the Effective Date; (d) is an Executory Contract related to any Intercompany Claim; or (e) is otherwise assumed pursuant to the terms herein; provided, however, that the Services Agreement will continue in effect through the Effective Date without being assumed or rejected.
2. Assumption of Executory Contracts and Unexpired Leases: On the Effective Date, the Reorganized Debtors shall assume all of the Executory Contracts and Unexpired Leases listed on the schedule of “Assumed Executory Contracts and Unexpired Leases” in the Plan Supplement and all Indemnification Obligations; provided, however, that if either of the Creditors’ Committees provides written notice to the Debtors of its objection to the inclusion of one or more Executory Contracts or Unexpired Leases on the schedule of “Assumed Executory Contracts and Unexpired Leases” or to the Debtors’ proposed Cure Claim, then such contracts or leases may only be assumed by the Debtors by motion brought upon appropriate notice and opportunity to object. With respect to each such Executory Contract and Unexpired Lease listed on the schedule of “Assumed Executory Contracts and Unexpired Leases” in the Plan Supplement, the Debtors shall have designated a proposed amount of the Cure Claim, and the assumption of such Executory Contract and Unexpired Lease may be conditioned upon the disposition of all issues with respect to such Cure Claim. The Confirmation Order shall constitute an order of the Bankruptcy Court approving any such assumptions pursuant to sections 365(a) and 1123 of the Bankruptcy Code.
a. Modification of Executory Contracts and Unexpired Leases Containing Equity Ownership Restrictions: Each Executory Contract and Unexpired Lease to be assumed under the Plan includes any modifications, amendments, supplements,
restatements, or other agreements that in any manner affects such contract or lease, unless any such modification, amendment, supplement, restatement, or other agreement is rejected pursuant hereunder.
b. Proofs of Claim Based on Executory Contracts or Unexpired Leases that Have Been Assumed: Any and all Proofs of Claim based upon Executory Contracts or Unexpired Leases that have been assumed in the Chapter 11 Cases, including hereunder, except Proofs of Claim asserting Cure Claims, pursuant to the order approving such assumption, including the Confirmation Order, shall be deemed disallowed and expunged from the Claims Register as of the Effective Date without any further notice to or action, order or approval of the Bankruptcy Court.
3. Assignment of Executory Contracts and Unexpired Leases to Newco: On the Effective Date, except to the extent otherwise determined by the Debtors, all Executory Contracts and Unexpired Leases related to the Container Interests shall be automatically assumed and assigned to Newco pursuant to sections 365(f) and 1123 of the Bankruptcy Code, notwithstanding any restrictions on such assumption and assignment, and the Confirmation Order shall specifically provide for the approval of such assignments.
B. Claims Based on Rejection of Executory Contracts or Unexpired Leases: Notwithstanding anything in the Bar Date Order or the Employee Bar Date Order to the contrary, if the rejection of an Executory Contract or Unexpired Lease, including pursuant hereto, gives rise to a Claim by the non-Debtor party or parties to such contract or lease, such Claim will be forever barred and will not be enforceable against the Debtors, Newco, their respective successors or their respective properties unless a Proof of Claim is Filed and served on the Plan Administrator no later than 30 days after the Effective Date. All Allowed Claims arising from the rejection or repudiation of the Debtors’ Executory Contracts and Unexpired Leases shall be classified as Other Unsecured Claims against the applicable Debtor and shall be treated in accordance with ARTICLE III.B.3 and ARTICLE III.B.5.
C. Cure of Defaults for Executory Contract and Unexpired Leases Assumed Pursuant to the Plan: With respect to any Executory Contract or Unexpired Lease to be assumed pursuant hereto, all Cure Claims will be satisfied at the option of the Debtors or their assignee, if any, by payment of the Cure Claim in Cash on the Effective Date or as soon as reasonably practicable thereafter or on such other terms as the parties to each such Executory Contract or Unexpired Lease may otherwise agree without any further notice to or action, order or approval of the Bankruptcy Court.
D. Reservation of Rights: Neither the exclusion nor inclusion of any contract or lease by the Debtors on any Exhibit to the Plan, nor anything contained in the Plan, will constitute an admission by the Debtors that any such contract or lease is or is not in fact an Executory Contract or Unexpired Lease or that the Debtors or Newco, or their respective Affiliates, have any liability thereunder. If there is a dispute regarding whether a contract or lease is or was executory or unexpired at the time of assumption or rejection, then the Debtors will have 30 days following entry of a Final Order resolving such dispute to amend their decision to assume or reject such contract or lease.
ARTICLE VIII. PROCEDURES FOR RESOLVING CONTINGENT, UNLIQUIDATED, AND DISPUTED CLAIMS
A. Allowance of Claims and Interests: After the Effective Date, Newco, the Reorganized Debtors, or the Plan Administrator, as applicable, shall have and retain any and all rights and defenses the Debtors had with respect to any Claim immediately prior to the Effective Date, including the Causes of Action referenced in ARTICLE IV.N. Except as expressly provided herein, no Claim shall become an Allowed Claim unless and until such Claim is deemed Allowed under ARTICLE I.A.19 herein or the Bankruptcy Code.
B. Claims and Interests Administration Responsibilities: Except as otherwise specifically provided herein, after the Confirmation Date but before the Effective Date, the
Debtors, and after the Effective Date, the Plan Administrator shall have authority to File, withdraw, or litigate to judgment, objections to any and all Claims. From and after the Effective Date, the Plan Administrator may compromise or settle any Disputed Claim without any further notice to or action, order, or approval by the Bankruptcy Court. The Plan Administrator shall have the sole authority to administer and adjust the Claims Register to reflect any such settlements or compromises without any further notice to or action, order, or approval by the Bankruptcy Court.
C. Estimation of Claims and Interests: Before the Effective Date, the Debtors, and after the Effective Date, the Plan Administrator may at any time request that the Bankruptcy Court estimate (a) any Disputed Claim pursuant to applicable law and (b) any contingent or unliquidated Claim pursuant to applicable law, including, without limitation, section 502(c) of the Bankruptcy Code for any reason, regardless of whether any party previously has objected to such Claim or whether the Bankruptcy Court has ruled on any such objection, and the Bankruptcy Court shall retain jurisdiction to estimate any such Claim, including during the litigation of any objection to any Claim or during the appeal relating to such objection. In the event that the Bankruptcy Court estimates any contingent or unliquidated Claim, that estimated amount shall constitute either the Allowed amount of such Claim or a maximum limitation on such Claim for all purposes under the Plan (including for purposes of distributions), and the Plan Administrator may elect to pursue any supplemental proceedings to object to any ultimate distribution on such Claim. Notwithstanding any provision otherwise in the Plan, a Claim that has been expunged from the Claims Register but that is subject to appeal or has not been the subject of a Final Order, shall be deemed to be estimated at zero dollars, unless otherwise ordered by the Bankruptcy Court. Notwithstanding section 502(j) of the Bankruptcy Code, in no event shall any Holder of a Claim that has been estimated pursuant to section 502(c) of the Bankruptcy Code or otherwise be entitled to seek reconsideration of such estimation unless such Holder has Filed a motion requesting the right to seek such reconsideration on or before twenty days after the date on which such Claim is estimated. All of the aforementioned Claims and objection, estimation and resolution procedures are cumulative and not exclusive of one another. Claims may be estimated and subsequently compromised, settled, withdrawn or resolved by any mechanism approved by the Bankruptcy Court.
D. Expungement or Adjustment to Claims Without Objection: Any Claim that has been paid, satisfied, superseded, or compromised in full may be expunged on the Claims Register by the Plan Administrator, and any Claim that has been amended may be adjusted thereon by the Plan Administrator, in both cases without a claims objection having to be Filed and without any further notice to or action, order, or approval by the Bankruptcy Court. Further, to the extent a Holder of a Claim receives a distribution on account of such Claim and receives payment from a party that is not a Debtor, the Plan Administrator, Reorganized SCL, Reorganized SCSL, or Reorganized SCC, on account of such Claim, such Holder shall, within two weeks of receipt thereof, repay or return the distribution to the Plan Administrator, to the extent the Holder’s total recovery on account of such Claim from the third party and under the Plan exceeds the amount of such Claim as of the date of any such distribution hereunder. Beginning on the end of the first full calendar quarter that is at least 90 days after the Effective Date, the Plan Administrator shall File every calendar quarter a list of all Claims that have been paid, satisfied, superseded or amended during such prior calendar quarter.
E. No Interest: Unless otherwise specifically provided for in the Plan or agreed to by the Debtors, the Confirmation Order, the DIP Facility, or a postpetition agreement in writing between the Debtors and a Holder of a Claim, postpetition interest shall not accrue or be paid on Claims, and no Holder of a Claim shall be entitled to interest accruing on or after the Petition Date on any Claim or right. Additionally, and without limiting the foregoing, interest shall not accrue or be paid on any Disputed Claim with respect to the period from the Effective Date to the date a final distribution is made on account of such Disputed Claim, if and when such Disputed Claim becomes an Allowed Claim.
F. Disallowance of Claims or Interests: The Debtors or the Plan Administrator, as applicable, shall retain all rights to commence and pursue any and all avoidance actions and other litigation under sections 522(f), 522(h), 544, 545, 547, 548, 549, or 724(a) of the Bankruptcy Code. Any and all Claims held by Entities from which property is recoverable by the Plan Administrator under sections 542, 543, 550, or 553 of the Bankruptcy Code or that the Debtors or the Plan Administrator allege is a transferee of a transfer avoidable under sections 522(f), 522(h), 544, 545, 547, 548, 549, or 724(a) of the Bankruptcy Code, shall be deemed disallowed pursuant to section 502(d) of the Bankruptcy Code, and Holders of such Claims may not receive any distributions on account of such Claim until such time as such Causes of Action against that Entity have been settled or a Bankruptcy Court order with respect thereto has been entered and all sums due, if any, to the Debtors by that Entity have been turned over or paid to the Plan Administrator.
G. Amendments to Claims: On or after the Effective Date, a Claim may not be Filed or amended without the prior authorization of the Bankruptcy Court or the Plan Administrator, and any such new or amended Claim Filed shall be deemed disallowed in full and expunged without any further notice to or action, order, or approval by the Bankruptcy Court.
ARTICLE IX. PROVISIONS GOVERNING DISTRIBUTIONS
A. Distributions on Account of Claims and Interests Allowed as of the Effective Date: Except as otherwise provided herein, a Final Order, or as agreed to by the relevant parties, the Plan Administrator shall make initial distributions under the Plan on account of Claims Allowed on or before the Effective Date, including a Pro Rata distribution to the Equalization Claim Reserve, on the Distribution Date; provided, however, that Allowed Priority Tax Claims, unless otherwise agreed, shall be paid (a) in full in Cash on the Distribution Date; (b) Cash or Cash Equivalents in an amount agreed to by the Debtors or the Plan Administrator, as applicable, and such Holder; provided, however, that such parties may further agree for the payment of such Allowed Priority Tax Claim at a later date.
B. Distributions on Account of Claims Allowed After the Effective Date or Assets Realized After the Effective Date:
1. Payments and Distributions on Disputed Claims and Interests: Except as otherwise provided in the Plan, a Final Order, or as agreed to by the relevant parties, distributions under the Plan on account of Disputed Claims that become Allowed after the Effective Date shall be made on the Periodic Distribution Date that is at least 30 days after the Disputed Claim becomes an Allowed Claim; provided, however, that Disputed Priority Tax Claims that become Allowed Priority Tax Claims after the Effective Date, unless otherwise agreed, shall be paid (a) in full in Cash on the Distribution Date; (b) Cash or Cash Equivalents in an amount agreed to by the Debtors or the Plan Administrator, as applicable, and such Holder; provided, however, that such parties may further agree for the payment of such Allowed Priority Tax Claim at a later date.
C. Delivery of Distributions
3. Delivery of Distributions in General: Except as otherwise provided herein, and notwithstanding any authority to the contrary, distributions to Holders of Allowed Claims shall be made to Holders of record as of the Distribution Record Date by the Plan Administrator or a Servicer, as appropriate: (a) to the signatory set forth on any of the Proofs of Claim Filed by such Holder or other representative identified therein (or at the last known addresses of such Holder if no Proof of Claim is Filed or if the Debtors have been notified in writing of a change of address); (b) at the addresses set forth in any written notices of address changes delivered to the Plan Administrator after the date of any related Proof of Claim; (c) at the addresses reflected in the Schedules if no Proof of Claim has been Filed and the Plan Administrator has not received a written notice of a change of address; or (d) on any counsel that has appeared in the Chapter 11 Cases on the Holder’s behalf. The Debtors and the Plan Administrator, as applicable, shall not incur any liability whatsoever on account of any distributions under the Plan.
8. De Minimis, Undeliverable, and Unclaimed Distributions:
a. Fractional and De Minimis Distributions: Notwithstanding any other provision of the Plan, the Plan Administrator shall not be required to make distributions or payments of less than $50 (whether Cash or otherwise). Further, the Plan Administrator shall not be required to make a distribution to any Holder of an Allowed Claim if the amount to be distributed to such Holder on a particular Periodic Distribution Date would not constitute a final distribution to such Holder and is or has a value less than $100. The Plan Administrator shall not be required to distribute fractional shares of Newco Equity, but is permitted to round to the nearest whole share, with half shares or less being rounded down.
b. Undeliverable Distributions: If any distribution to a Holder of an Allowed Claim is returned to the Plan Administrator as undeliverable, no further distributions shall be made to such Holder unless and until the Plan Administrator is notified in writing of such Holder’s then-current address, at which time all currently due missed distributions shall be made to such Holder on the next Periodic Distribution Date. Undeliverable distributions shall remain in the possession of the Plan Administrator until such time as a distribution becomes deliverable, or such distribution reverts to Reorganized SCL pursuant to ARTICLE IX.C.8.c. Undeliverable distributions shall not be entitled to any interest, dividends, or other accruals of any kind.
c. Reversion: Any distribution under the Plan that is an Unclaimed Distribution for a period of six months after distribution shall be deemed unclaimed property under section 347(b) of the Bankruptcy Code and such Unclaimed Distribution (i) shall revest in Reorganized SCL for distribution in accordance with ARTICLE IV.B.9 and ARTICLE IX.B.4 hereof and (ii) to the extent such Unclaimed Distribution is Newco Equity, shall be deemed canceled. Upon such revesting, the Claim of any Holder or its successors with respect to such property shall be canceled, discharged, and forever barred notwithstanding any applicable federal or state escheat, abandoned, or unclaimed property laws to the contrary. This ARTICLE IX.C.8.c shall apply with equal force whether such distributions are issued by the Debtors or made pursuant to any indenture or Certificate (but only with respect to the initial distribution by the Servicer to Holders that
are entitled to be recognized under the relevant indenture or Certificate and not with respect to Entities to whom those recognized Holders distribute), notwithstanding any provision in such indenture or Certificate to the contrary and notwithstanding any otherwise applicable federal or state escheat, abandoned, or unclaimed property law.
D. Setoff: The Plan Administrator may, pursuant to section 553 of the Bankruptcy Code or applicable non-bankruptcy law, set off against any Allowed Claim and the distributions to be made pursuant hereto on account of such Claim (before any distribution is made on account of such Claim), any claims, rights and Causes of Action of any nature that any of the Reorganized Debtors may hold against the Holder of any such Allowed Claim; provided, however, that neither the failure to effect such a setoff nor the allowance of any Claim hereunder constitutes a waiver or release by the Plan Administrator of any such claims, rights and causes of action that the Reorganized Debtors may possess against any such Holder. For the avoidance of doubt, the Plan Administrator’s foregoing right of setoff shall not apply to the Allowed Pension Schemes Unsecured Claims, the Allowed Pension Schemes Administrative Claims, the Allowed Equalization Claim, or the Equalization Determination Costs, except to the extent that the Pension Schemes recover value from former participating employers.
ARTICLE X. SETTLEMENT, RELEASE, INJUNCTION, AND RELATED PROVISIONS
A. Compromise and Settlement of Claims and Controversies: Notwithstanding anything contained herein to the contrary, the allowance, classification, and treatment of all Allowed Claims and the respective distributions and treatments hereunder take into account and conform to the relative priority and rights of the Claims and 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) and (c) of the Bankruptcy Code, or otherwise. As of the Effective Date, any and all such rights described in the preceding sentence are settled, compromised and released pursuant hereto. Pursuant to section 510 of the Bankruptcy Code, the Plan Administrator reserves the right to re-classify any Allowed Claim or Interest in accordance with any contractual, legal, or equitable subordination relating thereto; provided, however, that the Plan Administrator shall not have the right to reclassify the Allowed Pension Schemes Unsecured Claims, the Allowed Pension Schemes Administrative Claims, the Allowed Equalization Claim, or the Equalization Determination Costs. Pursuant to section 363 of the Bankruptcy Code and Bankruptcy Rule 9019 and in consideration for the distributions and other benefits provided pursuant to the Plan, the provisions of the Plan shall constitute a good faith compromise of all Claims, Interests, and controversies relating to the contractual, legal, and subordination rights that a Holder of a Claim may have with respect to any Allowed Claim, or
any distribution to be made on account of such an Allowed Claim. The entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval of the compromise or settlement of all such Claims, Interests, controversies, as well as a finding by the Bankruptcy Court that such compromise or settlement is in the best interests of the Debtors, their Estates, and all Holders of Claims and Interests and is fair, equitable, and reasonable. In accordance with the provisions of this Plan, and pursuant to section 363 of the Bankruptcy Code and Bankruptcy Rule 9019(a), without any further notice to or action, order, or approval of the Bankruptcy Court, after the Effective Date, the Plan Administrator may compromise and settle Claims against the Reorganized Debtors and Causes of Action against other Entities.
B. Releases by the Debtors: Notwithstanding anything contained herein to the contrary, pursuant to section 1123(b) of the Bankruptcy Code, and except as otherwise specifically provided in the Plan or the Plan Supplement, for good and valuable consideration provided by each of the Debtor Releasees, including, without limitation: (1) the discharge of debt and all other good and valuable consideration paid pursuant hereto or otherwise; and (2) the services of the Debtor Releasees in facilitating the expeditious implementation of the transactions contemplated hereby, on the Effective Date and effective as of the Effective Date, the Debtor Releasees are deemed released and discharged by each of the Debtors and the Estates from any and all claims, obligations, rights, suits, damages, Causes of Action, remedies, and liabilities whatsoever, including any derivative claims asserted on behalf of the Debtors, whether known or unknown, foreseen or unforeseen, liquidated or unliquidated, contingent or fixed, currently existing or hereafter arising, in law, at equity, whether for tort, fraud, contract, violations of federal or state securities laws or otherwise, that the Debtors or Newco, or their Affiliates would have been legally entitled to assert in their own right (whether individually or collectively) or on behalf of any of the Debtors or any of their Estates, and further including those based on or relating to, or in any manner arising from, in whole or in part, the Debtors, the Chapter 11 Cases, the Plan, the subject matter of, or the transactions or events giving rise to, any Claim or Interest that is treated in the Plan, the business or contractual arrangements between any Debtor and any Debtor Releasees, the restructuring of Claims and Interests prior to or in the Chapter 11 Cases, the negotiation, formulation, or preparation of the Plan, the Disclosure Statement, the Bermuda Scheme of Arrangement, the U.K. Scheme of Arrangement, or related agreements, instruments, or other documents, including, without limitation, the GE SeaCo Framework Agreement and the GE SeaCo Definitive Settlement Documents, upon any other act or omission, transaction, agreement, event, or other occurrence taking place, in each case to the extent incurred on or prior to the Effective Date, other than in each case claims or liabilities arising out of or relating to any act or omission of a Debtor Releasees that constitutes a failure to perform the duty to act in good faith, with the care of an ordinarily prudent person, and in a manner such Debtor Releasee reasonably believed to be in the best interests of the Debtors (to the extent such duty is imposed by applicable non-bankruptcy law) where such failure to perform constitutes willful misconduct or gross negligence; provided, however, that the foregoing “Debtor Release” shall not operate to release any claims, obligations, Causes of Action, or liabilities based on or relating to, or in any manner arising from, any act or omission of any advisor (including, but not limited to, actuaries, attorneys, professional advisors, and consultants), or any director or officer, with a duty to the Debtors as of or prior to, October 15, 2006, in connection with the potential Equalization Claim, the potential Equalization-Related
Employee Claims, Equalization Determination Costs, and any costs incurred or funded by SCL, SCSL and various Non-Debtor Subsidiaries in relation to the investigation, conduct, and determination of the potential Equalization Claim and the potential Equalization-Related Employee Claims.
C. Third Party Releases: Notwithstanding anything contained herein to the contrary and except as provided in ARTICLE IV.D hereof or in this ARTICLE X.C, as of the Effective Date, in consideration for the obligations of the Debtors and the Debtor Releasees under the Plan and the Cash, Cash Equivalents, other contracts, instruments, releases, agreements, or documents to be entered into or delivered in connection with the Plan, each Releasing Party is deemed to forever release, waive, and discharge the Debtors and the Debtor Releasees from any and all claims, obligations, rights, suits, damages, Causes of Action, remedies, and liabilities whatsoever, whether known or unknown, foreseen or unforeseen, liquidated or unliquidated, contingent or fixed, currently existing or hereafter arising, in law, at equity, whether for tort, fraud, contract, violations of federal or state securities laws or otherwise, that are based on any act, omission, transaction, or other occurrence taking place on or prior to the Effective Date, based on or relating to, or in any manner arising from, in whole or in part, the Debtors, the Chapter 11 Cases, the Plan, the subject matter of, or the transactions or events giving rise to, any Claim or Interest that is treated in the Plan, the restructuring of Claims and Interests prior to or in the Chapter 11 Cases, the negotiation, formulation, or preparation of the Plan, the Disclosure Statement, the Bermuda Scheme of Arrangement, the U.K. Scheme of Arrangement, or related agreements, instruments, or other documents, including, without limitation, the GE SeaCo Framework Agreement and the GE SeaCo Definitive Settlement Documents, that such Releasing Party has, had, or may have against any of the Debtors or the Debtor Releasees and their respective properties (which release will be in addition to the discharge of claims and termination of Interests provided herein and under the Confirmation Order and the Bankruptcy Code); provided, however, that the foregoing “Third Party Release” shall not operate to release (1) the Reorganized Debtors’ or Newco’s rights to enforce obligations under the Plan and the contracts, instruments, releases, agreements, and documents delivered thereunder and (2) claims, obligations, Causes of Action, or liabilities based on or relating to, or in any manner arising from, any act or omission of any advisor (including, but not limited to, actuaries, attorneys, professional advisors, and consultants), or any director or officer, with a duty to the Debtors as of or prior to, October 15, 2006, in connection with the potential Equalization Claim, the potential Equalization-Related Employee Claims, Equalization Determination Costs, and
any costs incurred or funded by SCL, SCSL and various Non-Debtor Subsidiaries in relation to the investigation, conduct, and determination of the potential Equalization Claim and the potential Equalization-Related Employee Claims; provided further that (a) solely as to the Pension Scheme Trustees, the Third Party Release set forth in this ARTICLE X.C shall be limited to the limited extent necessary to ensure to the reasonable satisfaction of the Pension Schemes Trustees that each of the Pension Schemes is eligible to enter the Pension Protection Fund and is able to trigger the Pension Protection Fund assessment period, it being understood that (i) in all events, notwithstanding such limitation, the Pension Schemes’ sole recourse for recovery on the Pension Schemes Claims, and their sole satisfaction of such Claims, shall be their Pro Rata share of the SCL Unsecured Distribution with respect to the Allowed Pension Schemes Unsecured Claims, the Allowed Pension Schemes Administrative Claims, the Equalization Claim Reserve, and the Equalization Determination Costs Reserve, as applicable; and (ii) nothing contained in this ARTICLE X.C shall be deemed a release or waiver of any claims against Non-Debtor Subsidiaries that are or were participating employers under the Pension Schemes, to the extent necessary to effectuate and implement the Pension Schemes Settlement Agreement; and (b) solely as between and among the SCL Parties (as defined in the Mutual Release Agreement), on the one hand, and the GE/GE SeaCo Settlement Parties, on the other hand, with respect to claims, obligations, rights, suits, damages, Causes of Action, remedies, and liabilities relating to or in connection with GE SeaCo and GE SeaCo America, to the extent of any inconsistency between this ARTICLE X.C and the Mutual Release Agreement, the Mutual Release Agreement shall govern and supersede the releases set forth in this ARTICLE X.C.
F. Reimbursement or Contribution: If the Court disallows a Claim for reimbursement or contribution of an Entity pursuant to section 502(e)(1)(B) of the Bankruptcy Code, then to the extent that such Claim is contingent as of the time of allowance or disallowance, such Claim shall be forever disallowed notwithstanding section 502(j) of the Bankruptcy Code, unless prior to the Effective Date: (1) such Claim has been adjudicated as noncontingent or (2) the relevant Holder of a Claim has Filed a noncontingent Proof of Claim on account of such Claim and a Final Order has been entered determining such Claim as no longer contingent.
ARTICLE XI. ALLOWANCE AND PAYMENT OF CERTAIN ADMINISTRATIVE CLAIMS
A. Professional Claims
1. Final Fee Applications: All final requests for payment of Claims of a Professional shall be Filed no later than forty-five days after the Effective Date. After notice and a hearing in accordance with the procedures established by the Bankruptcy Code and prior Bankruptcy Court orders, the Allowed amounts of such Professional Claims shall be determined by the Bankruptcy Court.
2. Payment of Interim Amounts: Except as otherwise provided herein, Professionals shall be paid pursuant to the Interim Compensation Order.
3. Professional Fee Escrow Account: In accordance with ARTICLE XI.A.4, on the Effective Date, the Plan Administrator shall fund the Professional Fee Escrow Account with Cash equal to the aggregate Professional Fee Reserve Amount for all Professionals. The Professional Fee Escrow Account shall be maintained in trust for the Professionals with respect to whom fees or expenses have been held back pursuant to the Interim Compensation Order. The remaining amount of Professional Claims owing to the Professionals shall be paid in Cash to such Professionals by the Plan Administrator from the Professional Fee Escrow Account when
such Claims are Allowed by a Bankruptcy Court order. When all Professional Claims have been paid in full, amounts remaining in the Professional Fee Escrow Account, if any, shall be paid to Newco.
4. Professional Fee Reserve Amount: To receive payment for unbilled fees and expenses incurred through the Effective Date, on or before the Effective Date, the Professionals shall estimate their Accrued Professional Compensation prior to and as of the Effective Date and shall deliver such estimate to the Debtors no later than 30 days after Confirmation. If a Professional does not provide an estimate, the Plan Administrator may estimate the unbilled fees and expenses of such Professional; provided, however, that such estimate shall not be considered an admission with respect to the fees and expenses of such Professional. The total amount so estimated as of the Effective Date shall comprise the Professional Fee Reserve Amount.
5. Substantial Contribution Compensation and Expenses: Except as otherwise specifically provided in the Plan, any Entity who requests compensation or expense reimbursement for making a substantial contribution in the Chapter 11 Cases pursuant to sections 503(b)(3), (4), and (5) of the Bankruptcy Code must File an application and serve such application on counsel for the Debtors or the Plan Administrator, as applicable, and as otherwise required by the Bankruptcy Court and the Bankruptcy Code on or before the Administrative Claim Bar Date or be forever barred from seeking such compensation or expense reimbursement.
B. Other Administrative Claims: Except with respect to the Allowed Pension Schemes Administrative Claims and the Equalization Determination Costs, all requests for payment of an Administrative Claim must be Filed with the Claims and Solicitation Agent and served upon counsel to the Debtors or the Plan Administrator, as applicable, on or before the Administrative Claim Bar Date. Any request for payment of an Administrative Claim that is not timely Filed and served shall be disallowed automatically without the need for an objection by the Debtors or the Plan Administrator. On or after the Effective Date, the Plan Administrator may settle and pay any Administrative Claim in the ordinary course of business without any further notice to or action, order, or approval of the Bankruptcy Court. In the event that the Debtors or the Plan Administrator, as applicable, object to an Administrative Claim, the Bankruptcy Court shall determine the Allowed amount of such Administrative Claim. Notwithstanding the foregoing, no request for payment of an Administrative Claim need be Filed with respect to an Administrative Claim previously Allowed by Final Order.
ARTICLE XII. CONDITIONS PRECEDENT TO CONFIRMATION AND CONSUMMATION OF THE PLAN
A. Conditions to Confirmation: The following are conditions precedent to Confirmation that must be satisfied or waived in accordance with ARTICLE XII.C:
1. The Bankruptcy Court shall have approved the Disclosure Statement, in a manner acceptable to the Debtors, in their sole and absolute discretion and after consultation with the Creditors’ Committees, as containing adequate information with respect to the Plan within the meaning of section 1125 of the Bankruptcy Code.
2. The most current version of the Plan Supplement and all of the schedules, documents, and exhibits contained therein shall have been Filed in form and substance acceptable to the Debtors, in their sole and absolute discretion, subject to consultation with the Creditors’ Committees.
3. The proposed Confirmation Order shall be in form and substance acceptable to the Debtors in their sole and absolute discretion and after consultation with the Creditors’ Committees.
4. (A) The Bankruptcy Court shall have entered an order approving the Pension Schemes Settlement Agreement or (B) the Creditors’ Committees shall have reached a consensual resolution with respect to the treatment of the Pension Schemes Claims.
5. The GE SeaCo Definitive Settlement Documents shall have been approved as part of the Confirmation Order.
6. The SCL board of directors shall have issued all resolutions necessary to approve the Plan, the Bermuda Scheme of Arrangement, the U.K. Scheme of Arrangement and any other actions necessary to effectuate the Plan.
B. Conditions Precedent to Consummation: The following are conditions precedent to Consummation that must be satisfied or waived in accordance with ARTICLE XII.C:
1. The Exit Facility shall have been executed and delivered by all of the Entities that are parties thereto, and all conditions precedent to the consummation thereof shall have been waived or satisfied in accordance with the terms thereof, and funding pursuant to the Exit Facility shall have occurred.
2. The Confirmation Order shall have become a Final Order in form and substance acceptable to the Debtors in their sole and absolute discretion.
3. The GE SeaCo Settlement Closing shall have taken place.
4. The Plan Administrator shall have accepted appointment.
5. The conditions in the Bermuda Scheme of Arrangement (except for the effectiveness of the Plan) shall have been satisfied or waived in accordance with the terms of the Bermuda Scheme of Arrangement.
6. The conditions in the U.K. Scheme of Arrangement (except for the effectiveness of the Plan) shall have been satisfied or waived in accordance with the terms of the U.K. Scheme of Arrangement.
C. Waiver of Conditions Precedent: At any time, the Debtors may waive any of the conditions to Confirmation or Consummation set forth in ARTICLE XII, except for the conditions in ARTICLE XII.A.4, ARTICLE XII.B.4, and ARTICLE XII.B.5 which may not be waived, subject to two Business Days’ notice to and consultation with the Creditors’ Committees with regard to such waiver, without any notice to other parties-in-interest and without any further
notice to or action, order, or approval of the Bankruptcy Court, and without any formal action other than proceeding to confirm or consummate the Plan; provided, however, that the Debtors must serve notice of waiver of conditions upon the JPLs; provided further that the Debtors may only waive the condition precedent to Consummation that the GE SeaCo Settlement Closing shall have taken place with the prior written consent to such waiver from each GE/GE SeaCo Settlement Party that is a signatory to the GE SeaCo Definitive Settlement Documents. A failure to satisfy or waive any condition to Confirmation or Consummation may be asserted as a failure of Confirmation or Consummation regardless of the circumstances giving rise to such failure (including any action or inaction by the party asserting such failure). The failure of the Debtors or Newco, as applicable, 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.
D. Effect of Non-Occurrence of Conditions to Consummation: Each of the conditions to Consummation must be satisfied or duly waived pursuant to ARTICLE XII.C. If prior to Consummation, the Confirmation Order is vacated by Bankruptcy Court order, then except as provided in any order of the Bankruptcy Court vacating the Confirmation Order, the Plan, the Bermuda Scheme of Arrangement and the U.K. Scheme of Arrangement will be null and void in all respects, including the discharge of Claims and termination of Interests pursuant to the Plan and section 1141 of the Bankruptcy Code and the assumptions, assignments, or rejections of Executory Contracts or Unexpired Leases pursuant to ARTICLE VII, and nothing contained in the Plan, the Disclosure Statement, the Bermuda Scheme of Arrangement or the U.K. Scheme of Arrangement shall: (1) constitute a waiver or release of any claims by or Claims or Causes of Action against or Interests in the Debtors (2) prejudice in any manner the rights of the Debtors, Holders of Claims or any other Entity; or (3) constitute an admission, acknowledgment, offer, or undertaking of any sort by the Debtors, Holders of Claims or any other Entity.
E. Satisfaction of Conditions Precedent to Confirmation: Upon entry of a Confirmation Order, each of the conditions precedent to Confirmation, as set forth in ARTICLE XII.A, shall be deemed to have been satisfied or waived in accordance with the Plan.
ARTICLE XIII. MODIFICATION, REVOCATION, OR WITHDRAWAL OF THE PLAN
A. Modification and Amendments: Subject to certain restrictions and requirements set forth in section 1127 of the Bankruptcy Code and Bankruptcy Rule 3019 and those restrictions on modifications set forth in the Plan, the Debtors, subject to two Business Days’ notice to and consultation with the Creditors’ Committees, reserve the exclusive right to alter, amend, or modify materially the Plan or any exhibits included therein at any time prior to entry of the Confirmation Order and to solicit acceptances of any amendment to or modification of the Plan, if necessary, through and until the Effective Date. After the entry of the Confirmation Order and prior to Consummation, the Debtors may initiate proceedings in the Bankruptcy Court to amend or modify the Plan, or remedy any defect or omission, or reconcile any inconsistencies in the Plan, the Disclosure Statement, or the Confirmation Order, in such matters as may be necessary to carry out the purposes and intent of the Plan. Notwithstanding anything to the contrary herein, the Debtors shall not, without the prior written consent of each GE/GE SeaCo
Settlement Party that is a signatory to the GE SeaCo Definitive Settlement Documents, at any time alter, amend, or modify the Plan or any exhibits included therein in any manner that would modify in any way the rights hereunder, including under the GE SeaCo Definitive Settlement Documents, of the GE/GE SeaCo Settlement Parties.
B. Effect of Confirmation on Modifications: Entry of a Confirmation Order shall mean that all modifications or amendments to the Plan since the solicitation thereof are approved pursuant to section 1127(a) of the Bankruptcy Code and do not require additional disclosure or resolicitation under Bankruptcy Rule 3019.
C. Revocation or Withdrawal of Plan: The Debtors reserve the right to revoke or withdraw the Plan prior to the Confirmation Date and to File subsequent chapter 11 plans. If the Debtors revoke or withdraw the Plan, or if Confirmation or Consummation does not occur, then: (1) the Plan shall be null and void in all respects; (2) any settlement or compromise embodied in the Plan (including the fixing or limiting to an amount certain of any Claim or Interest or Class of Claims or Interests), assumption or rejection of Executory Contracts or Unexpired Leases effected by the Plan, and any document or agreement executed pursuant to the Plan, shall be deemed null and void except as may be set forth in a separate order entered by the Bankruptcy Court; and (3) nothing contained in the Plan shall: (a) constitute a waiver or release of any Claims by or against or Interests in, the Debtors or any other Entity; (b) prejudice in any manner the rights of the Debtors or any other Entity; or (c) constitute an admission, acknowledgement, offer, or undertaking of any sort by the Debtors or any other Entity.
ARTICLE XIV. RETENTION OF JURISDICTION
A. Bankruptcy Court: Notwithstanding the entry of the Confirmation Order and the occurrence of the Effective Date, and except as provided in the Pension Schemes Settlement Agreement or the GE Definitive Settlement Documents, the Bankruptcy Court shall retain exclusive jurisdiction over all matters arising out of, or related to, the Chapter 11 Cases, the Debtors, and the Plan pursuant to sections 105(a) and 1142 of the Bankruptcy Code, including jurisdiction to:
1. allow, disallow, determine, liquidate, classify, estimate, or establish the priority, Secured or unsecured status, or amount of any Claim, including the resolution of any request for payment of any Administrative Claim and the resolution of any and all objections to the Secured or unsecured status, priority, amount, or allowance of Claims;
2. decide and resolve all matters related to the granting and denying, in whole or in part, any applications for allowance of compensation or reimbursement of expenses to Professionals authorized pursuant to the Bankruptcy Code or the Plan;
3. determine whether any party in interest, including, without limitation, any party asserting a Claim, is subject to the jurisdiction of the Bankruptcy Court;
4. resolve any matters related to the assumption, assumption and assignment or rejection of any Executory Contract or Unexpired Lease to which any Debtor is a party or with
respect to which any Debtor or Newco may be liable and to hear, determine and, if necessary, liquidate any Claims arising therefrom, including any Cure Claims;
5. ensure that distributions to Holders of Allowed Claims are accomplished pursuant to the provisions of the Plan and adjudicate any and all disputes arising from or relating to distributions under the Plan;
6. adjudicate, decide, or resolve any motions, adversary proceedings, contested or litigated matters, and any other matters that are pending as of the Effective Date or that may be commenced in the future, and grant or deny any applications involving a Debtor that may be pending on the Effective Date or instituted by the Plan Administrator or Newco after the Effective Date; provided that the Plan Administrator and Newco shall reserve the right to commence actions in all appropriate forums and jurisdictions;
7. adjudicate, decide, or resolve any and all matters related to Causes of Action;
8. adjudicate, decide, or resolve any and all matters related to section 1141 of the Bankruptcy Code;
9. enter and implement such orders as may be necessary or appropriate to execute, implement, or consummate the provisions of the Plan and all contracts, instruments, releases, indentures, and other agreements or documents created in connection with the Plan, the Plan Supplement, or the Disclosure Statement;
10. resolve any cases, controversies, suits, disputes, or Causes of Action that may arise in connection with the Consummation, interpretation, or enforcement of the Plan or the Confirmation Order, or any Entity’s obligations incurred in connection with the Plan, including enforcement of any settlements approved pursuant to the Confirmation Order, except as provided in such settlements;
11. issue injunctions and enforce them, enter and implement other orders, or take such other actions as may be necessary or appropriate to restrain interference by any Entity with Consummation or enforcement of the Plan;
12. resolve any cases, controversies, suits, disputes, or Causes of Action with respect to the releases, injunctions, and other provisions contained in ARTICLE X and enter such orders as may be necessary or appropriate to implement or enforce such releases, injunctions, and other provisions;
13. enter and implement such orders as are necessary or appropriate if the Confirmation Order is for any reason modified, stayed, reversed, revoked, or vacated;
14. enforce all orders previously entered by the Bankruptcy Court;
15. determine any other matters that may arise in connection with or relate to the Plan, the Disclosure Statement, the Confirmation Order, or any contract, instrument, release, indenture, or other agreement or document created in connection with the Plan or the Disclosure Statement;
16. consider any modifications of the Plan, to cure any defect or omission, or to reconcile any inconsistency in any Bankruptcy Court order, including the Confirmation Order;
17. hear and determine matters concerning state, local, and federal taxes in accordance with sections 346, 505, and 1146 of the Bankruptcy Code;
18. determine whether a party is subject to jurisdiction of the Bankruptcy Court in the first instance;
19. hear any other matter not inconsistent with the Bankruptcy Code; and
20. enter an order or Final Decree concluding or closing the Chapter 11 Cases.
B. No Limitation on Bermuda Court: Notwithstanding the foregoing, nothing in this ARTICLE XIV shall be construed as a limitation on the jurisdiction of the Bermuda Court in the Bermuda Wind Up Proceedings or in respect of the Bermuda Scheme of Arrangement. The Bermuda Court shall have exclusive jurisdiction over the liquidation of Reorganized SCL and the claims resolution process solely with respect to claims permitted to be filed against SCL in the Bermuda Court; provided, however, the Bankruptcy Court shall have jurisdiction over actions, claims, or other matters impacting on the Plan or implementation of the Plan.
C. No Limitation on English Court: Notwithstanding the foregoing, nothing in this ARTICLE XIV shall be construed as a limitation on the jurisdiction of the English Court in the winding up proceedings initiated by SCSL in the English Court or in respect of the U.K. Scheme of Arrangement. After the Effective Date, the English Court shall have exclusive jurisdiction over the liquidation of Reorganized SCSL; provided, however, the Bankruptcy Court shall have jurisdiction over actions, claims, or other matters impacting on the Plan or implementation of the Plan.
ARTICLE XV. MISCELLANEOUS PROVISIONS
A. Immediate Binding Effect: Subject to ARTICLE XIII and notwithstanding Bankruptcy Rules 3020(e), 6004(h), or 7062 or otherwise, upon the occurrence of the Effective Date, the terms of the Plan and the Plan Supplement shall be immediately effective and enforceable and deemed binding upon the Debtors, Newco, the Plan Administrator, and any and all Holders of Claims or Interests (irrespective of whether such Claims or Interests are deemed to have accepted the Plan), all Entities that are parties to or are subject to the settlements, compromises, releases, discharges, and injunctions described herein, each Entity acquiring property under the Plan, and any and all non-Debtor parties to Executory Contracts and Unexpired Leases with the Debtors.
B. Additional Documents: On or before the Effective Date, the Debtors may File such agreements and other documents as may be necessary or appropriate to effectuate and further evidence the terms and conditions of the Plan, subject to consultation with the Creditors’ Committees. The Debtors, the Plan Administrator, or Newco, as applicable, and all other parties in interest shall, from time to time, prepare, execute, and deliver any agreements or documents
and take any other actions as may be necessary or advisable to effectuate the provisions and intent of the Plan.
C. Payment of Statutory Fees: All fees payable pursuant to section 1930(a) of title 28 of the United States Code after the Effective Date, as determined by the Bankruptcy Court at a hearing, shall be paid for each quarter (including any fraction thereof) prior to the closing of the Chapter 11 Cases when due or as soon thereafter as practicable.
D. Dissolution of Committees: On the Effective Date, the Creditors’ Committees shall be dissolved and their respective members shall be deemed released of all their duties, responsibilities, and obligations in connection with the Chapter 11 Cases or the Plan or its implementation; provided, however, that the Creditors’ Committees shall continue to exist for the limited purpose of: (1) preparing, filing, objecting, and prosecuting or defending any objections to Professional fee applications covering any period prior to the Effective Date; (2) prosecuting, defending, or participating in any motions for reconsideration, motions, appeals, or similar proceedings relating to the implementation or interpretation of the Plan or the Pension Schemes Settlement Agreement; and (3) considering substantial contribution claims. The reasonable and documented fees and expenses of the Professionals of the Creditors’ Committees arising in connection with the foregoing shall constitute obligations of Reorganized SCL and shall be paid by the Plan Administrator when due.
E. Reservation of Rights: Except as expressly set forth herein, the Plan shall have no force or effect unless the Bankruptcy Court enters the Confirmation Order. Neither the Filing of the Plan, any statement or provision contained herein, nor the taking of any action by any Debtor with respect to the Plan, the Disclosure Statement, or the Plan Supplement shall be or shall be deemed to be an admission or waiver of any rights of (1) any Debtor with respect to the Holders of Claims or Interests or any other Entity; or (2) any Holder of a Claim or Interest or other Entity prior to the Effective Date.
F. Successors and Assigns: The rights, benefits, and obligations of any Entity named or referred to in the Plan shall be binding on, and shall inure to the benefit of any heir, executor, administrator, successor or assign, Affiliate, officer, director, agent, representative, attorney, beneficiary, or guardian, if any, of each Entity.
G. Service of Documents
1. After the Effective Date, any pleading, notice, or other document required by the Plan to be served on or delivered to the Plan Administrator shall be served on:
2. After the Effective Date, the Plan Administrator has authority to send a notice to Entities that to continue to receive documents pursuant to Bankruptcy Rule 2002, they must file a
renewed request to receive documents pursuant to Bankruptcy Rule 2002. After the Effective Date, the Plan Administrator is authorized to limit the list of Entities receiving documents pursuant to Bankruptcy Rule 2002 to those Entities who have Filed such renewed requests.
3. In accordance with Bankruptcy Rules 2002 and 3020(c), within ten Business Days of the date of entry of the Confirmation Order, the Debtors shall serve the Notice of Confirmation by United States mail, first class postage prepaid, by hand, or by overnight courier service to all parties having been served with the Confirmation Hearing Notice; provided, however, that no notice or service of any kind shall be required to be mailed or made upon any Entity to whom the Debtors mailed a Confirmation Hearing Notice, but received such notice returned marked “undeliverable as addressed,” “moved, left no forwarding address” or “forwarding order expired,” or similar reason, unless the Debtors have been informed in writing by such Entity, or are otherwise aware, of that Entity’s new address. To supplement the notice described in the preceding sentence, within twenty days of the date of the Confirmation Order the Debtors shall publish the Notice of Confirmation once in The Wall Street Journal (Global Edition), Financial Times, London Gazette, Royal Gazette, and Lloyd’s List. Mailing and publication of the Notice of Confirmation in the time and manner set forth in the this paragraph shall be good and sufficient notice under the particular circumstances and in accordance with the requirements of Bankruptcy Rules 2002 and 3020(c), and no further notice is necessary.
4. Within ten Business Days of the occurrence of the Effective Date, the Plan Administrator shall serve the Notice of Effective Date by United States mail, first class postage prepaid, by hand, or by overnight courier service to all parties having been served with the Notice of Confirmation as set forth in ARTICLE XV.G.3 hereof.
H. Term of Injunctions or Stays: Unless otherwise provided herein or in the Confirmation Order, all injunctions or stays in effect in the Chapter 11 Cases pursuant to sections 105 or 362 of the Bankruptcy Code or any order of the Bankruptcy Court, and extant on the Confirmation Date (excluding any injunctions or stays contained in the Plan or the Confirmation Order) shall remain in full force and effect until the Effective Date. All injunctions or stays contained in the Plan or the Confirmation Order shall remain in full force and effect in accordance with their terms.
I. Entire Agreement: Except as otherwise indicated, the Plan supersedes all previous and contemporaneous negotiations, promises, covenants, agreements, understandings, and representations on such subjects, all of which have become merged and integrated into the Plan.
J. Governing Law: Except to the extent that the Bankruptcy Code, Bankruptcy Rules or Bermuda law apply or unless otherwise specifically stated, the laws of the State of New York, without giving effect to the principles of conflict of laws, shall govern the rights, obligations, construction, and implementation of the Plan, any agreements, documents, instruments, or contracts executed or entered into in connection herewith (except as otherwise set forth in those agreements, in which case the governing law of such agreement shall control), and corporate governance matters; provided, however, that corporate governance matters relating to Debtors not incorporated in New York shall be governed by the laws of the state of incorporation of the applicable Debtor, as applicable.
K. Exhibits: All exhibits and documents included in the Plan Supplement are incorporated into and are an integral part of the Plan that shall be approved by the Bankruptcy Court pursuant to the Confirmation Order. After the exhibits and documents are Filed, copies of such exhibits and documents shall have been available upon written request to the Debtors’ counsel at the addresses above or by downloading such exhibits and documents from the Debtors’ private website at http://www.bmcgroup.com/scl or the Bankruptcy Court’s website at www.deb.uscourts.gov. To the extent any exhibit or document is inconsistent with the terms of the Plan, unless otherwise ordered by the Bankruptcy Court, the non-exhibit or non-document portion of the Plan shall control.
L. Non-severability of Plan Provisions: All provisions of the Plan are integral thereto and no provision may be deleted or modified without the Debtors’ consent, in their sole discretion.
M. Waiver or Estoppel: Each Holder of a Claim or an Interest shall be deemed to have waived any right to assert any argument, including the right to argue that its Claim or Interest should be Allowed in a certain amount, in a certain priority, Secured or not subordinated by virtue of an agreement made with the Debtors or their counsel, the Creditors’ Committees or their counsel, or any other Entity, if such agreement was not disclosed in the Plan, the Disclosure Statement, or papers Filed with the Bankruptcy Court prior to the Confirmation Date.
N. Conflicts: Except as set forth in the Plan, to the extent that any provision of the Disclosure Statement, the Plan Supplement, or any other order (other than the Confirmation Order) referenced in the Plan (or any exhibits, schedules, appendices, supplements, or amendments to any of the foregoing), conflict with or are in any way inconsistent with any provision of the Plan, the Plan shall govern and control.
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