EXHIBIT 10.24
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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
In re: : Chapter 11
:
AMFAC HAWAII, LLC, ET AL., (1) : Jointly Administered
: Case No. 02-07637
Debtors. :
: Honorable Bruce W. Black
FIRST AMENDED JOINT PLAN OF REORGANIZATION OF AMFAC
HAWAII, LLC, CERTAIN OF ITS SUBSIDIARIES AND
FHT CORPORATION UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
Brad B. Erens David S. Curry
JONES, DAY, REAVIS & POGUE Richard G. Ziegler
77 West Wacker Drive MAYER, BROWN, ROWE & MAW
Chicago, Illinois 60601 190 South LaSalle Street
(312) 782-3939 Chicago, Illinois 60603
(312) 782-0600
Richard M. Cieri
JONES, DAY, REAVIS & POGUE SPECIAL COUNSEL FOR FHT
North Point CORPORATION
901 Lakeside Avenue
Cleveland, Ohio 44114
(216) 586-3939
ATTORNEYS FOR DEBTORS AND
DEBTORS IN POSSESSION
Dated: May 10, 2002
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(1) The Debtors are the following 10 entities: Amfac Hawaii, LLC,
Amfac Holdings Corp., Amfac Land Company, Limited, FHT Corporation,
Kaanapali Development Corp., Kaanapali Estate Coffee, Inc., KDCW, Inc.,
Pioneer Mill Company, Limited, The Lihue Plantation Company, Limited and
Waikele Golf Club, Inc.
ARTICLE I. DEFINED TERMS, RULES OF INTERPRETATION, COMPUTATION
OF TIME AND GOVERNING LAW. . . . . . . . . . . . 1
A. RULES OF INTERPRETATION, COMPUTATION OF TIME AND
GOVERNING LAW. . . . . . . . . . . . . . . . . . 1
B. DEFINED TERMS. . . . . . . . . . . . . . . . . . 1
ARTICLE II.TREATMENT OF UNCLASSIFIED CLAIMS . . . . . . . . 8
A. SUMMARY. . . . . . . . . . . . . . . . . . . . . 8
B. ADMINISTRATIVE EXPENSE CLAIMS. . . . . . . . . . 8
C. PRIORITY TAX CLAIMS. . . . . . . . . . . . . . . 9
ARTICLE III. CLASSIFICATION AND TREATMENT OF CLASSIFIED CLAIMS
AND INTERESTS. . . . . . . . . . . . . . . . . . 9
A. SUMMARY. . . . . . . . . . . . . . . . . . . . . 9
B. CLASSIFICATION AND TREATMENT OF CLAIMS AGAINST AND
INTERESTS IN THE AHI DEBTORS . . . . . . . . . . 10
C. CLASSIFICATION AND TREATMENT OF CLAIMS AGAINST AND
INTERESTS IN FHTC. . . . . . . . . . . . . . . . 14
D. SPECIAL PROVISION GOVERNING UNIMPAIRED CLAIMS. . 16
ARTICLE IV.NON-CONSENSUAL CONFIRMATION. . . . . . . . . . . 16
ARTICLE V. MEANS FOR IMPLEMENTATION OF THE PLAN . . . . . . 16
A. CONTINUED CORPORATE EXISTENCE. . . . . . . . . . 16
B. CONSUMMATION OF THE NORTHBROOK MERGER. . . . . . 17
C. VESTING OF ASSETS. . . . . . . . . . . . . . . . 17
D. CANCELLATION OF INSTRUMENTS AND SECURITIES . . . 17
E. ISSUANCE OF NEW SECURITIES; EXECUTION OF
RELATED DOCUMENTS. . . . . . . . . . . . . . . . 17
F. CONSUMMATION OF THE KAANAPALI LAND MERGER. . . . 18
G. KAANAPALI LAND COMPANY AGREEMENT . . . . . . . . 18
H. CORPORATE GOVERNANCE, MANAGEMENT AND CORPORATE ACTION19
I. SUBSTANTIVE CONSOLIDATION FOR PURPOSES OF TREATING
IMPAIRED CLAIMS. . . . . . . . . . . . . . . . . 20
J. SOURCES OF CASH FOR PLAN DISTRIBUTIONS . . . . . 20
K. AFI DISTRIBUTION; OTHER CORPORATE RESTRUCTURINGS 21
L. ISSUANCE OF SECURED NOTE . . . . . . . . . . . . 21
ARTICLE VI.TREATMENT OF EXECUTORY CONTRACTS AND
UNEXPIRED LEASES . . . . . . . . . . . . . . . . 21
A. ASSUMPTION OF EXECUTORY CONTRACTS AND
UNEXPIRED LEASES . . . . . . . . . . . . . . . . 21
B. CLAIMS BASED ON REJECTION OF EXECUTORY CONTRACTS
OR UNEXPIRED LEASES. . . . . . . . . . . . . . . 22
C. CURE OF DEFAULTS FOR ASSUMED EXECUTORY CONTRACTS AND
UNEXPIRED LEASES . . . . . . . . . . . . . . . . 22
D. INDEMNIFICATION OF DIRECTORS, OFFICERS, MANAGERS AND
EMPLOYEES. . . . . . . . . . . . . . . . . . . . 22
E. COMPENSATION AND BENEFIT PROGRAMS. . . . . . . . 22
ARTICLE VII. PROVISIONS GOVERNING DISTRIBUTIONS . . . . . . 23
A. TIMING OF DISTRIBUTIONS. . . . . . . . . . . . . 23
B. METHODS OF DISTRIBUTION. . . . . . . . . . . . . 23
C. UNDELIVERABLE AND UNCLAIMED DISTRIBUTIONS. . . . 25
D. COMPLIANCE WITH TAX REQUIREMENTS . . . . . . . . 26
E. COMPENSATION AND REIMBURSEMENT FOR SERVICES
RELATED TO DISTRIBUTIONS . . . . . . . . . . . . 26
F. SETOFFS. . . . . . . . . . . . . . . . . . . . . 26
ARTICLE VIII. PROCEDURES FOR RESOLVING DISPUTED CLAIMS. . . 27
A. PROSECUTION OF OBJECTIONS TO CLAIMS AND INTERESTS 27
B. PAYMENTS AND DISTRIBUTIONS ON DISPUTED CLAIMS. . 27
C. DISPUTED CLAIMS RESERVE. . . . . . . . . . . . . 27
D. DISTRIBUTIONS AFTER ALLOWANCE. . . . . . . . . . 27
ARTICLE IX.CONFIRMATION AND CONSUMMATION OF THE PLAN. . . . 28
A. CONDITIONS PRECEDENT TO CONSUMMATION . . . . . . 28
B. WAIVER OF CONDITIONS . . . . . . . . . . . . . . 28
C. EFFECT OF VACATION OF CONFIRMATION ORDER . . . . 28
ARTICLE X. RELEASE, INJUNCTION AND RELATED PROVISIONS . . . 29
A. SUBORDINATION. . . . . . . . . . . . . . . . . . 29
B. RELEASES . . . . . . . . . . . . . . . . . . . . 30
C. PRESERVATION OF RIGHTS OF ACTION . . . . . . . . 30
D. EXCULPATION. . . . . . . . . . . . . . . . . . . 31
E. INJUNCTION . . . . . . . . . . . . . . . . . . . 31
F. RESERVATION OF CLAIMS AGAINST NON-DEBTOR
SUBSIDIARIES AND ASSIGNMENT OF RIGHTS. . . . . . 31
ARTICLE XI.RETENTION OF JURISDICTION. . . . . . . . . . . . 32
ARTICLE XII. MISCELLANEOUS PROVISIONS . . . . . . . . . . . 33
A. DISSOLUTION OF COMMITTEE . . . . . . . . . . . . 33
B. PAYMENT OF STATUTORY FEES. . . . . . . . . . . . 33
C. DISCHARGE OF DEBTORS . . . . . . . . . . . . . . 33
D. MODIFICATION OF PLAN . . . . . . . . . . . . . . 33
E. REVOCATION OF PLAN . . . . . . . . . . . . . . . 34
F. SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . 34
G. RESERVATION OF RIGHTS. . . . . . . . . . . . . . 34
H. SECTION 1146 EXEMPTION . . . . . . . . . . . . . 34
I. FURTHER ASSURANCES . . . . . . . . . . . . . . . 34
J. CORPORATE ACTION . . . . . . . . . . . . . . . . 35
K. BAR DATES FOR ADMINISTRATIVE CLAIMS. . . . . . . 35
L. INTERPRETATION OF PLAN PROVISIONS. . . . . . . . 35
M. SERVICE OF DOCUMENTS . . . . . . . . . . . . . . 35
N. SECTION 1145 EXEMPTION . . . . . . . . . . . . . 36
O. PLAN DOCUMENTS . . . . . . . . . . . . . . . . . 36
FIRST AMENDED JOINT PLAN OF REORGANIZATION
OF AMFAC HAWAII, LLC, CERTAIN OF ITS SUBSIDIARIES AND FHT CORPORATION UNDER
CHAPTER 11 OF THE BANKRUPTCY CODE
Pursuant to title 11 of the United States Code, 11 U.S.C. Section
Section 101 et seq., Amfac Hawaii, LLC, KDCW, Inc., Amfac Holdings Corp.,
Kaanapali Development Corp., Waikele Golf Club, Inc., Amfac Land Company,
Limited, Pioneer Mill Company, Limited, The Lihue Plantation Company,
Limited, Kaanapali Estate Coffee, Inc. and FHT Corporation, each a debtor
and debtor in possession, propose the following First Amended Joint Plan of
Reorganization under Chapter 11 of the Bankruptcy Code:
ARTICLE I.
DEFINED TERMS, RULES OF INTERPRETATION,
COMPUTATION OF TIME AND GOVERNING LAW
A. RULES OF INTERPRETATION, COMPUTATION OF TIME AND GOVERNING LAW
1. 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) any reference in the Plan to an existing
document or exhibit Filed, or to be Filed, shall mean such document or
exhibit, as it may have been or may be amended, modified or supplemented;
(c) unless otherwise specified, all references in the Plan to Sections,
Articles and Exhibits are references to Sections, Articles and Exhibits of
or to the Plan; (d) the words "herein" and "hereto" refer to the Plan in
its entirety rather than to a particular portion of the Plan; (e) captions
and headings to Articles and Sections are inserted for convenience of
reference only and are not intended to be a part of or to affect the
interpretation of the Plan; (f) the rules of construction set forth in
section 102 of the Bankruptcy Code shall apply; and (g) any term used in
capitalized form in the Plan that is not defined herein 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 the case
may be.
2. In computing any period of time prescribed or allowed by the
Plan, the provisions of Bankruptcy Rule 9006(a) shall apply.
3. The rights and obligations arising under the Plan shall be
interpreted, governed by, and construed and enforced in accordance with the
laws of the State of Illinois, without regard to the conflict of law
principles thereof, the Bankruptcy Code and the Bankruptcy Rules.
B. DEFINED TERMS
Unless the context otherwise requires, the following terms shall have
the following meanings when used in capitalized form in the Plan:
1. "ADMINISTRATIVE EXPENSE CLAIM" means a Claim to the extent that
it is entitled to priority under section 507(a)(1) of the Bankruptcy Code.
2. "AFFILIATE" means an "affiliate" as defined in section 101(2)
of the Bankruptcy Code.
3. "AFI" means AF Investors, LLC, a Delaware limited liability
company.
4. "AFI CLAIMS" means all Claims held by AFI against FHTC in the
approximate amount of $203 million, whether evidenced by promissory note,
intercompany account or otherwise.
5. "AFI COLA Note Claims" means the COLA Note Claims held by AFI
as of the Petition Date.
6. "AFI DISTRIBUTION" has the meaning ascribed thereto in Article
V.K. of the Plan.
7. "AFLP" means Amfac Finance Limited Partnership, an Illinois
limited partnership.
8. "AHI" means Amfac Hawaii, LLC, a Hawaiian limited liability
company.
9. "AHI DEBTORS" means, collectively, AHI, KDCW, Inc., Amfac
Holdings Corp., Kaanapali Development Corp., Waikele Golf Club, Inc., Amfac
Land Company, Limited, Pioneer Mill Company, Limited, Kaanapali Estate
Coffee, Inc. and The Lihue Plantation Company, Limited, each, an "AHI
Debtor."
10. "AHI INTERESTS" means the Interests of Northbrook in AHI.
11. "AHI SUBSIDIARIES" means the AHI Debtors, excluding AHI.
12. "ALLOWED" means, with respect to any Claim: (a) a Claim that
has been listed by the Debtors in their Schedules as other than disputed,
contingent or unliquidated and as to which the Debtors or other parties in
interest have not Filed an objection by the Effective Date; (b) a Claim
that has been timely Filed on or before any applicable bar date set by the
Bankruptcy Court and either is not a Disputed Claim or has been allowed by
Final Order; (c) a Claim that is allowed: (i) in any stipulation of amount
and nature of Claim executed prior to the Confirmation Date and approved by
the Bankruptcy Court; (ii) in any stipulation with the Debtors of amount
and nature of Claim executed or agreed to by the Debtors or Reorganized
Debtors on or after the Confirmation Date; or (iii) in any contract,
instrument, indenture or other agreement entered into or assumed in
connection with the Plan; (d) a Claim that has been Filed by the bar date
or has otherwise been deemed timely Filed under applicable law relating to
a rejected executory contract or unexpired lease that either (i) is not a
Disputed Claim or (ii) has been allowed by a Final Order; or (e) any Claim
that is allowed pursuant to the terms of the Plan. The term "Allowed,"
when used to modify a reference in the Plan to any Claim or Class of
Claims, means a Claim (or any Claim in any such Class) that is so allowed.
13. "ALLOWED" means, with respect to any Interest, an Interest that
is listed in the respective transfer books and records for the Debtors as
of the applicable record date. The term "Allowed," when used to modify a
reference in the Plan to any Interest or Class of Interests, means an
Interest (or any Interest in any such Class) that is so allowed.
14. "AVOIDANCE ACTION" means any avoidance or recovery action under
sections 510, 542, 544, 545, 547, 548, 549, 550, 551 and 553 of the
Bankruptcy Code.
15. "BALLOTS" means the ballots accompanying the Disclosure
Statement upon which Holders of Impaired Claims or Impaired Interests shall
indicate their acceptance or rejection of the Plan in accordance with the
Plan and the Voting Instructions.
16. "BANKRUPTCY CODE" means title 11 of the United States Code, as
now in effect or hereafter amended.
17. "BANKRUPTCY COURT" means the United States District Court for
the Northern District of Illinois with jurisdiction over the Chapter 11
Cases and, to the extent of any reference made pursuant to section 157 of
title 28 of the United States Code and/or the General Order of such
District Court pursuant to section 151 of title 28 of the United States
Code, the bankruptcy unit of such District Court.
18. "BANKRUPTCY RULES" means, collectively, the Federal Rules of
Bankruptcy Procedure and the local rules of the Bankruptcy Court, as now in
effect or hereafter amended.
19. "BENEFICIAL HOLDER" means the Person or Entity holding the
beneficial interest in a Claim or Interest.
20. "BUSINESS DAY" means any day, other than a Saturday, Sunday or
"legal holiday" (as defined in Bankruptcy Rule 9006(a)).
21. "CASH" means cash and cash equivalents.
22. "CAUSES OF ACTION" means all actions, causes of action, suits,
debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages or judgments.
23. "CHAPTER 11 CASES" means the cases under chapter 11 of the
Bankruptcy Code, commenced by the Debtors in the Bankruptcy Court.
24. "CLAIM" means a "claim" as defined in section 101(5) of the
Bankruptcy Code, as supplemented by section 102(2) of the Bankruptcy Code,
against one or more of the Debtors or the property of one or more of the
Debtors.
25. "CLAIM HOLDER" or "CLAIMANT" means the Holder of a Claim.
26. "CLASS" means a category of Holders of Claims or Interests as
set forth in Article III of the Plan.
27. "CLASS A REPRESENTATIVE" means the entity appointed pursuant to
the Kaanapali Land Company Agreement to act as the representative of the
Class A Shares. The initial Class A Representative shall be Bank One Trust
Company, N.A. or another institution reasonably acceptable to Kaanapali
Land and the Indenture Trustee.
28. "CLASS A SHARES" means the Class A shares of FHTC, as survivor
of the Northbrook Merger, and as converted into Class A shares of Kaanapali
Land in the Kaanapali Land Merger, to be issued under the Merger Agreements
and the Plan to the COLA Holders other than the Holder of the AFI COLA Note
Claims.
29. "CLASS B SHARES" means the Class B shares of FHTC, as survivor
of the Northbrook Merger, and as converted into Class B shares of Kaanapali
Land in the Kaanapali Land Merger, to be issued under the Merger Agreements
and the Plan to Pacific Holdings, the Holders of the Northbrook Senior
Claims and AFI as a COLA Holder.
30. "COLA Holder" means a Creditor with a Claim against the AHI
Debtors based upon ownership of one or more COLA Notes.
31. "COLA INDENTURE" means the Indenture, dated as of March 14,
1989, as it may have been amended or modified from time to time, pursuant
to which AHI issued, and the Guarantors guaranteed, the COLA Notes.
32. "COLA NOTE CLAIM" means a Claim of a COLA Holder based on a
COLA Note.
33. "COLA NOTES" means Certificate of Land Appreciation Notes due
2008, Class A and Class B, issued by AHI pursuant the COLA Indenture.
34. "COLA SHARES" means the total number of Kaanapali Land Shares
issued to COLA Holders pursuant to the Plan, as set forth in Article
III.B.4. hereof.
35. "COMMITTEE" means a statutory official committee (or
committees, if more than one) appointed in the Chapter 11 Cases pursuant to
section 1102 of the Bankruptcy Code, if any.
36. "COMPENSATION AND BENEFIT PLANS" means all employment and
severance policies, and all compensation and benefit plans, policies and
programs, of the Debtors applicable to their employees, retirees and non-
employee directors and the employees and retirees of their subsidiaries,
including, without limitation, all savings plans, retirement plans, health
care plans, disability plans, severance benefit plans, incentive plans, and
life, accidental death and dismemberment insurance.
37. "CONFIRMATION" means the entry of the Confirmation Order.
38. "CONFIRMATION DATE" means the date upon which the Confirmation
Order is entered by the Bankruptcy Court in its docket, within the meaning
of Bankruptcy Rules 5003 and 9021.
39. "CONFIRMATION ORDER" means the order of the Bankruptcy Court
confirming the Plan pursuant to section 1129 of the Bankruptcy Code.
40. "CONSUMMATION" means the occurrence of the Effective Date.
41. "CONVENIENCE CLAIMS" means an unsecured, nonpriority Claim
(other than a COLA Note Claim) as of the Petition Date in the amount of
$500 or less; provided, however, that if the Holder of an unsecured,
nonpriority Claim (other than a COLA Note Claim) in an amount greater than
$500 shall make an election to reduce such Claim to $500, such Claim shall
be treated as a Convenience Claim for all purposes. Such election shall be
made on the ballot for accepting or rejecting the Plan, completed and
returned within the time fixed by order of the Bankruptcy Court.
42. "CREDITOR" means any Holder of a Claim.
43. "DEBTORS" mean, collectively, the AHI Debtors and FHTC.
44. "DEBTORS IN POSSESSION" mean the Debtors, as debtors in
possession in the Chapter 11 Cases.
45. "DISBURSING AGENT" means the Reorganized Debtors, or any Person
or Entity that may be designated by the Reorganized Debtors to serve as
disbursing agent under the Plan.
46. "DISCLOSURE STATEMENT" means the First Amended Disclosure
Statement With Respect To Joint Plan Of Reorganization Of Amfac Hawaii,
LLC, Certain of Its Subsidiaries and FHT Corporation Under Chapter 11 Of
The Bankruptcy Code, as amended, supplemented or modified from time to time
and as approved by the Bankruptcy Court.
47. "DISPUTED" means, with respect to any Claim or Interest, any
Claim or Interest: (a) listed on the Schedules as disputed, contingent or
unliquidated; or (b) as to which the Debtors or any other parties in
interest have interposed a timely objection or request for estimation, or
have sought to subordinate or otherwise limit recovery, in accordance with
the Bankruptcy Code and the Bankruptcy Rules, or which is otherwise
disputed by the Debtors in accordance with applicable law, which objection,
request for estimation, action to limit recovery or dispute has not been
withdrawn or determined by a Final Order.
48. "DISPUTED CLAIMS RESERVE" means the reserve established
pursuant to the Plan and maintained for and on account of Disputed Claims
in Class 5.
49. "DISTRIBUTION RECORD DATE" means the Confirmation Date.
50. "EFFECTIVE DATE" means the Business Day on which the Plan
becomes effective as provided in Article IX of the Plan.
51. "ENTITY" means an entity as defined in section 101(15) of the
Bankruptcy Code.
52. "ESTATES" means the estates of the Debtors created by section
541 of the Bankruptcy Code upon the commencement of the Chapter 11 Cases.
53. "FHTC" means FHT Corporation, an Arizona corporation.
54. "FILE" or "FILED" means file or filed with the Bankruptcy Court
in the Chapter 11 Cases.
55. "FINAL ORDER" means an order of the Bankruptcy Court as to
which the time to appeal, petition for certiorari or move for re-argument
or rehearing has expired and as to which no appeal, petition for certiorari
or other proceedings for re-argument or rehearing shall than be pending or
as to which any right to appeal, petition for certiorari, re-argue or
rehear shall have been waived in writing in form and substance satisfactory
to the Debtors or the Reorganized Debtors or, in the event that an appeal,
writ of certiorari or re-argument or rehearing thereof has been sought,
such order of the Bankruptcy Court shall have been determined by the
highest court to which such order was appealed, or certiorari, re-argument
or rehearing shall have been denied and the time to take any further
appeal, petition for certiorari or move for re-argument or rehearing shall
have expired.
56. "GENERAL UNSECURED CLAIMS" means, collectively, all Unsecured
Claims against a Debtor held by any Person or Entity, other than Claims
classified in Classes 4, 5.1, 6 or 3A.
57. "GUARANTORS" means each of the Entities that guaranteed the
COLA Notes and the Northbrook Senior Claims and each, a Guarantor.
58. "HOLDER" means a Person or Entity holding an Interest or Claim,
and with respect to a vote on the Plan, means the Beneficial Holder as of
the Voting Record Date or any authorized signatory that has completed and
executed a Ballot or on whose behalf a Ballot has been completed and
executed in accordance with the Voting Instructions.
59. "IMPAIRED CLAIM" means a Claim classified in an Impaired Class.
60. "IMPAIRED CLASS" means each of Classes 2, 4, 5, 6, 8, 3A and 5A
as set forth in Article III of the Plan.
61. "INDENTURE TRUSTEE" means Bank One Trust Company, N.A., as
successor trustee under the COLA Note Indenture.
62. "INDENTURE TRUSTEE FEES AND EXPENSES" means the unpaid
reasonable fees and expenses, including reasonable fees and expenses of
attorneys and financial advisors, incurred by the Indenture Trustee after
the Petition Date.
63. "INSIDER" means "insider," as defined in section 101(31) of the
Bankruptcy Code.
64. "INTERCOMPANY CLAIMS" means the amounts owing for money
borrowed or for goods and services rendered as reflected on the books and
records of any AHI Debtor as of the Petition Date by any AHI Debtor to
another AHI Debtor.
65. "INTEREST" means any equity interest in AHI or FHTC or AHI's or
any AHI Debtor's equity interest in any AHI Debtor, including, but not
limited to, all issued, unissued, authorized or outstanding shares of
stock, together with any warrants, options or contract rights to purchase
or acquire such interests at any time.
66. "KAANAPALI LAND" means Kaanapali Land, LLC, a Delaware limited
liability company organized as provided in the Plan, which survives the
Kaanapali Land Merger.
67. "KAANAPALI LAND COMPANY AGREEMENT" means the agreement among
Kaanapali Land, the COLA Holders, Pacific Holdings and AFI, substantially
in the form to be Filed with the Bankruptcy Court as a Plan Document.
68. "KAANAPALI LAND MERGER" means the merger of FHTC with and into
Kaanapali Land upon the terms and subject to the conditions set forth in
the Kaanapali Land Merger Agreement.
69. "KAANAPALI LAND SHARES" Class A Shares and Class B Shares.
70. "KAANAPALI MERGER AGREEMENT" means the Agreement and Plan of
Merger to be entered between FHTC and Kaanapali Land, substantially in the
form to be Filed with the Bankruptcy Court as a Plan Document.
71. "MERGER AGREEMENTS" means the Kaanapali Land Merger Agreement
and the Northbrook Merger Agreement.
72. "MERGERS" means the Kaanapali Land Merger and the Northbrook
Merger.
73. "NOMINEE" means any broker, dealer, commercial bank, trust
company, savings and loan, or other nominee that is the record owner of a
Claim or Interest for the benefit of a Beneficial Holder.
74. "NON-DEBTOR SUBSIDIARIES" means any direct or indirect
subsidiary of AHI that is not an AHI Debtor.
75. "NORTHBROOK" means Northbrook Corporation, a Delaware
corporation.
76. "NORTHBROOK MERGER" means the merger of Northbrook with and
into FHTC upon the terms and subject to the conditions set forth in the
Northbrook Merger Agreement.
77. "NORTHBROOK MERGER AGREEMENT" means that certain Agreement and
Plan of Merger between Northbrook and FHTC (as amended and supplemented
from time to time), substantially in the form to be Filed with the
Bankruptcy Court as a Plan Document.
78. "NORTHBROOK SENIOR DEBT INSTRUMENTS" means any notes, security
agreements, mortgages, guaranties, pledge agreements or other documents
evidencing the Northbrook Senior Claims.
79. "NORTHBROOK SENIOR CLAIMS" means all Secured Claims and
Unsecured Claims against the AHI Debtors held by (i) FHTC (approximately
$100 million), (ii) AFI (approximately $57 million) and (iii) Northbrook
(approximately $31 million, including indebtedness originally owed to
Tobishima Pacific, Inc.) on account of and pursuant to the Northbrook
Senior Debt Instruments.
80. "NORTHBROOK SENIOR CREDITORS" means all Holders of Northbrook
Senior Claims.
81. "OLD NORTHBROOK STOCK" means all of the issued and outstanding
common stock of Northbrook, which is owned by Pacific Holdings, as sole
shareholder of Northbrook.
82. "OLD STOCK INTERESTS" means all equity interests in FHTC.
83. "OTHER CLAIMS" means, collectively, all Claims against a Debtor
held by any Person or Entity, other than Claims in Classes 2, 4 and 3A.
84. "OTHER SECURED CLAIMS" means, collectively, all Secured Claims
against a Debtor held by any Person or Entity, other than Claims classified
in Class 2.
85. "PACIFIC HOLDINGS" means Pacific Trail Holdings, LLC, the sole
shareholder of Northbrook and Holder of the Old Northbrook Stock.
86. "PERSON" means a person as defined in section 101(41) of the
Bankruptcy Code.
87. "PETITION DATE" means the date on which the Debtors Filed their
petitions for relief commencing the Chapter 11 Cases.
88. "PLAN" or "JOINT PLAN" means this First Amended Chapter 11
Joint Plan of Reorganization, either in its present form or as it may be
altered, amended, modified or supplemented from time to time in accordance
with the Plan, the Merger Agreements, the Bankruptcy Code and the
Bankruptcy Rules.
89. "PLAN DOCUMENT" means the documents and form of documents
specified in the Plan to be Filed as provided in Article XII.O.
90. "PRIORITY CLAIMS" means any Claim accorded priority in right of
payment under section 507(a) of the Bankruptcy Code, other than an
Administrative Expense Claim or a Priority Tax Claim.
91. "PRIORITY TAX CLAIM" means a Claim of a governmental unit of
the kind specified in section 507(a)(8) of the Bankruptcy Code.
92. "PROFESSIONALS" means a Person or Entity (a) employed pursuant
to a Final Order in accordance with sections 327 or 1103 of the Bankruptcy
Code and to be compensated for services rendered prior to the Effective
Date, pursuant to sections 327, 328, 329, 330 and 331 of the Bankruptcy
Code, or (b) for which compensation and reimbursement has been allowed by
the Bankruptcy Court pursuant to section 503(b) of the Bankruptcy Code.
93. "PRO RATA" means proportionately so that, with respect to an
Allowed Claim and/or Allowed Interest, the ratio of (a)(i) the amount of
property distributed on account of a particular Allowed Claim or Allowed
Interest to (ii) the amount of the Allowed Claim or Allowed Interest is the
same as the ratio of (b)(i) the amount of property distributed on account
of all Allowed Claims and Allowed Interests of the Class in which the
particular Allowed Claim and/or Allowed Interest are/is included to (ii)
the amount of all Allowed Claims and/or Allowed Interests in that Class.
94. "REORGANIZED DEBTORS" means the Debtors, including, without
limitation, Kaanapali Land, or any successors thereto by merger,
consolidation or otherwise, on or after the Effective Date.
95. "SCHEDULES" means the schedules of assets and liabilities and
the statement of financial affairs filed by the Debtors under section 521
of the Bankruptcy Code and Bankruptcy Rule 1007, as such schedules and
statements may be supplemented or amended from time to time.
96. "SECURED CLAIM" means (a) a Claim that is secured by a lien on
property in which any Estate has an interest, which lien is valid,
perfected and enforceable under applicable law or by reason of a Final
Order, or that is subject to setoff under section 553 of the Bankruptcy
Code, to the extent of the value of the Claim Holder's interest in an
Estate's interest in such property or to the extent of the amount subject
to setoff, as applicable, as determined pursuant to section 506(a) of the
Bankruptcy Code, or (b) a Claim Allowed under this Plan as a Secured Claim.
97. "SUBORDINATION-RELATED RIGHTS" has the meaning ascribed thereto
in Article X.A of the Plan.
98. "SUBSIDIARY STOCK" means the common stock of, and all equity
interests in, any AHI Subsidiary, issued and outstanding immediately prior
to the Effective Date.
99. "SUBSIDIARY STOCK INTERESTS" means all equity interests held by
AHI in any AHI Subsidiary or by any AHI Subsidiary in any other AHI
Subsidiary.
100. "UNIMPAIRED CLAIM" means a Claim that is not impaired within
the meaning of section 1124 of the Bankruptcy Code.
101. "UNIMPAIRED CLASS" means a Class that is not impaired within
the meaning of section 1124 of the Bankruptcy Code.
102. "UNSECURED CLAIM" means any Claim against a Debtor that is not
a Secured Claim, Administrative Expense Claim, Priority Tax Claim or
Priority Claim.
103. "VOTING INSTRUCTIONS" means the instructions for voting on the
Plan contained in the section of the Disclosure Statement entitled VOTING
PROCEDURES" and in the Ballots.
104. "VOTING RECORD DATE" means the date of entry of the order
approving the Disclosure Statement.
ARTICLE II.
TREATMENT OF UNCLASSIFIED CLAIMS
A. SUMMARY
Pursuant to section 1123(a)(1) of the Bankruptcy Code, Administrative
Expense Claims and Priority Tax Claims against the Debtors are not
classified for purposes of voting on, or receiving distributions under, the
Plan. Holders of such Claims are not entitled to vote on the Plan. All
such Claims are instead treated separately in accordance with this Article
II and in accordance with the requirements set forth in section
1129(a)(9)(A) of the Bankruptcy Code.
B. ADMINISTRATIVE EXPENSE CLAIMS
Subject to the provisions of sections 330(a) and 331 of the
Bankruptcy Code, each Holder of an Allowed Administrative Expense Claim
will be paid the full unpaid amount of such Allowed Administrative Expense
Claim in Cash on the later of (i) the Effective Date or (ii) the date such
Claim becomes an Allowed Administrative Expense Claim, or upon such other
terms as may be agreed upon by such Holder and the Reorganized Debtors or
otherwise upon order of the Bankruptcy Court; provided, however, that
Allowed Administrative Expense Claims representing obligations incurred in
the ordinary course of business or otherwise assumed by the Debtors on the
Effective Date pursuant to the Plan will be paid or performed by the
Reorganized Debtors when due in accordance with the terms and conditions of
the particular agreements governing such obligations.
Promptly upon the Effective Date, the Indenture Trustee Fees and
Expenses (net and after application of any funds held by the Indenture
Trustee for such purpose) shall be paid by the Reorganized Debtors as
Administrative Expense Claims. Distributions received by COLA Holders will
not be reduced on account of the Indenture Trustee Fees and Expenses but
will remain subject to the charging lien and right of setoff that the
Indenture Trustee has under the COLA Indenture until the Indenture Trustee
has received cash (and any disputed amounts have been reserved) equal to
the Administrative Expense Claim of the Indenture Trustee for the Indenture
Trustee Fees and Expenses. Notwithstanding the foregoing, in the event the
Debtors dispute the reasonableness or enforceability of any Indenture
Trustee Fees and Expenses, such dispute, after payment in full of all
undisputed amounts, shall be submitted to the Bankruptcy Court for
resolution, and such disputed Indenture Trustee Fees and Expenses will be
approved unless found not reasonable within the meaning of the COLA
Indenture. The Indenture Trustee's Fees and Expenses will not be subject
to any additional standards contained in Section 503(b)(3)(D) of the
Bankruptcy Code. Promptly upon determination by the Bankruptcy Court, the
Reorganized Debtors shall pay to the Indenture Trustee (i) the disputed
portion of the Indenture Trustee Fees and Expenses allowed by the
Bankruptcy Court and (ii) the amount necessary to cover the fees and
expenses incurred by the Indenture Trustee in defending the objection to
its fees and expenses unless the Bankruptcy Court determines that the fees
and expenses incurred in such defense were unreasonably incurred.
C. PRIORITY TAX CLAIMS
Each Holder of an Allowed Priority Tax Claim due and payable on or
prior to the Effective Date will be paid the full unpaid amount of such
Allowed Priority Tax Claim in Cash on the Effective Date, or upon such
other terms as may be agreed upon by such Holder and the Reorganized
Debtors or otherwise upon order of the Bankruptcy Court. The amount of any
Priority Tax Claim that is not an Allowed Claim or that is not otherwise
due and payable on or prior to the Effective Date, and the rights of the
Holder of such Claim, if any, to payment in respect thereof, shall (i) be
determined in the manner in which the amount of such Claim and the rights
of the Holder of such Claim would have been resolved or adjudicated if the
Chapter 11 Cases had not been commenced, (ii) survive the Effective Date
and Consummation of the Plan as if the Chapter 11 Cases had not been
commenced and (iii) not be discharged pursuant to section 1141 of the
Bankruptcy Code. In accordance with section 1124 of the Bankruptcy Code,
the Plan leaves unaltered the legal, equitable and contractual rights of
each Holder of a Priority Tax Claim.
ARTICLE III.
CLASSIFICATION AND TREATMENT OF CLASSIFIED CLAIMS AND INTERESTS
A. SUMMARY
This Plan constitutes a plan of reorganization for each Debtor. For
administrative convenience, the Plan places the Claims against and
Interests in the AHI Debtors into Classes 1 through 8 and the Claims
against and Interests in FHTC in Classes 1A through 5A.
The categories of Claims and Interests listed below classify Claims
and Interests for all purposes. A Claim or Interest shall be deemed
classified in a particular Class only to the extent that the Claim or
Interest qualifies within the description of that Class and shall be deemed
classified in a different Class to the extent that any remainder of such
Claim or Interest qualifies within the description of such different Class.
A Claim or Interest is in a particular Class only to the extent that such
Claim or Interest is Allowed in that Class and has not been paid or
otherwise settled prior to the Effective Date.
The Plan is premised on the substantive consolidation of the AHI
Debtors only with respect to the treatment of Class 2, Class 4 and Class 5
Claims, as and to the extent provided in Article V.I. of this Plan. The
Plan does not contemplate the substantive consolidation of the Debtors with
respect to other Classes of Claims or Interests.
1. CLASSIFICATION OF CLAIMS AND INTERESTS: AHI DEBTORS
The classification of Claims and Interests with respect to the AHI
Debtors is as follows:
CLASS STATUS VOTING RIGHTS
- ----- ---------- ----------------------
Class 1 - Priority Claims Unimpaired - not entitled to vote
Class 2 - Northbrook Senior Claims Impaired - entitled to vote
Class 3 - Other Secured Claims Unimpaired - not entitled to vote
Class 4 - COLA Note Claims Impaired - entitled to vote
Class 5 - General Unsecured Claims Impaired - entitled to vote
Class 5.1 - Convenience Claims Unimpaired - not entitled to vote
Class 6 - Intercompany Claims Impaired - entitled to vote
Class 7 - Subsidiary Stock InterestsUnimpaired - not entitled to vote
Class 8 - AHI Interests Impaired - entitled to vote
2. CLASSIFICATION OF CLAIMS AND INTERESTS: FHTC
The classification of Claims and Interests with respect to FHTC is as
follows:
CLASS STATUS VOTING RIGHTS
- ----- ---------- ----------------------
Class 1A - Priority Claims Unimpaired - not entitled to vote
Class 2A - Other Secured Claims Unimpaired - not entitled to vote
Class 3A - AFI Claims Impaired - entitled to vote
Class 4A - General Unsecured ClaimsUnimpaired - not entitled to vote
Class 5A - Old Stock Interests Impaired - entitled to vote
B. CLASSIFICATION AND TREATMENT OF CLAIMS AGAINST AND INTERESTS IN THE
AHI DEBTORS
1. Class 1 -- Priority Claims
(a) CLASSIFICATION: Class 1 consists of all Priority Claims
against the AHI Debtors.
(b) TREATMENT: The legal, equitable and contractual rights
of the Holders of Class 1 Claims are unaltered by the Plan. Unless the
Holder of such Claim, the Debtors or the Reorganized Debtors agree to a
different treatment in writing, each Holder of an Allowed Class 1 Claim
shall receive one of the following alternative treatments, at the election
of the Debtors and Kaanapali Land:
(i) to the extent then due and owing on the Effective
Date, such Claim will be paid in full in Cash by the Reorganized Debtors on
the Effective Date;
(ii) to the extent not due and owing on the Effective
Date, such Claim will be paid in full in Cash by the Reorganized Debtors
when and as such Claim becomes an Allowed Class 1 Claim, or as promptly as
practicable thereafter; or
(iii)such Claim will be otherwise treated in any other
manner so that such Claim shall otherwise be rendered unimpaired pursuant
to section 1124 of the Bankruptcy Code.
Any default with respect to any Class 1 Claim that occurred before or after
the commencement of the Chapter 11 Cases shall be deemed cured upon the
Effective Date.
(c) VOTING: Class 1 is not impaired, 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
Claims in Class 1 are not entitled to vote to accept or reject the Plan.
2. Class 2 -- Northbrook Senior Claims
(a) CLASSIFICATION: Class 2 consists of all Northbrook Senior
Claims.
(b) TREATMENT: On the Effective Date, the Northbrook Senior
Claims shall be deemed to be Allowed Claims, and each Holder of a Class 2
Allowed Claim (i) will receive in full satisfaction and settlement of, and
in exchange for, such Allowed Claim its Pro Rata share of 1,270,203 Class B
Shares and (ii) shall be entitled to the release from the Debtors provided
in Article X.B of this Plan. The portion of the Class B Shares so
distributed to FHTC shall, pursuant to Article V.J. of this Plan, be
reallocated to AFI, and the Class B Shares so distributed to Northbrook
shall, pursuant to the terms of the Northbrook Merger Agreement, be retired
and shall no longer be issued and outstanding Class B Shares.
(c) VOTING: Class 2 is impaired, and the Holders of Allowed
Class 2 Claims are entitled to vote to accept or reject the Plan.
3. CLASS 3 -- OTHER SECURED CLAIMS
(a) CLASSIFICATION: Class 3 consists of all Other Secured
Claims against the AHI Debtors.
(b) TREATMENT: The legal, equitable and contractual rights
of the Holders of Class 3 Claims are unaltered by the Plan. Unless the
Holder of such Claim, the Debtors or the Reorganized Debtors agree to a
different treatment in writing, each Holder of an Allowed Class 3 Claim
shall receive one of the following alternative treatments, at the election
of the Debtors and Kaanapali Land:
(i) the legal, equitable and contractual rights to
which such Claim entitles the Holder thereof shall be reinstated and the
Holder paid in accordance with such legal, equitable and contractual
rights; or
(ii) such Claim will be otherwise treated in any other
manner so that such Claim shall otherwise be rendered unimpaired pursuant
to section 1124 of the Bankruptcy Code.
Any default with respect to any Class 3 Claim that occurred before or after
the commencement of the Chapter 11 Cases shall be deemed cured upon the
Effective Date.
(c) VOTING: Class 3 is not impaired, and the Holders of
Class 3 Claims are conclusively deemed to have accepted the Plan pursuant
to section 1126(f) of the Bankruptcy Code. Therefore, the Holders of
Claims in Class 3 are not entitled to vote to accept or reject the Plan.
4. CLASS 4 -- COLA NOTE CLAIMS
(a) CLASSIFICATION: Class 4 consists of all COLA Note
Claims.
(b) TREATMENT: On the Effective Date, the COLA Note Claims
shall be deemed Allowed in the aggregate amount of approximately
$142,185,345, which includes principal and accrued and unpaid interest
through the Petition Date, and each Holder of a COLA Note Claim will
receive, at the Holder's election, one of the following alternative
treatments in full satisfaction of and in exchange for such Holder's COLA
Note Claim:
(i) payment in Cash from Kaanapali Land in an amount
equal to $35 per Class A or Class B COLA Note owned by such Holder, in full
satisfaction of $500 in principal and all accrued and unpaid interest
thereon, with such payment to be made as promptly as practicable after the
Effective Date; provided, however, in no event shall Kaanapali Land be
required to pay more than $5,172,000 in the aggregate (which amount equals
approximately 65% of the aggregate amount required to pay 7% to all Holders
of COLA Note Claims other than to AFI) to COLA Holders that elect to
receive the Cash distribution. If the aggregate of Cash payments to COLA
Holders making the Cash election would exceed $5,172,000, each electing
COLA Holder (x) shall receive its Pro Rata share of $5,172,000 and (y) on
account of the balance of its COLA Note Claim (calculated after giving
credit, on a proportional basis, for the portion of the Claim that has been
satisfied by the Cash distribution) shall receive Class A Shares on the
same basis as provided in clause (ii) below; or
(ii) if a COLA Holder does not elect and receive the
Cash treatment set forth in clause (i) above, each COLA Holder shall
receive one Class A Share for each $500.00 in principal of COLA Note Claims
in full satisfaction of principal and accrued but unpaid interest on each
Class A or Class B COLA Note represented thereby. The maximum number of
Class A Shares to be issued to COLA Holders, assuming no COLA Holder elects
the Cash option under clause (i) above, is 278,825. In addition, on or
immediately following the Effective Date, Kaanapali Land shall enter into
the Kaanapali Land Company Agreement, which shall contain certain corporate
governance provisions for the benefit of the holders of the Class A Shares,
including, without limitation, the appointment of the Class A
Representative.
(c) VOTING: Class 4 is impaired, and the Holders of Allowed
Class 4 Claims are entitled to vote to accept or reject the Plan.
(d) ELECTION: The election to receive treatment under clause
(i) or clause (ii) of subsection (b) above shall be made by the COLA
Holders on the Ballot for accepting or rejecting the Plan. If a COLA
Holder fails to make a timely election, the Holder shall be deemed to have
elected to receive the treatment contained in clause (ii) of subsection (b)
above and shall receive Class A Shares. The AFI COLA Note Claims shall not
be eligible to elect the Cash treatment in clause (i) of subsection (b)
above but shall receive Class B Shares on the same basis as set forth in
clause (ii) of subsection (b) above respecting Class A Shares issuable to
other Holders of COLA Note Claims.
5. CLASS 5 -- GENERAL UNSECURED CLAIMS
(a) CLASSIFICATION: Class 5 consists of all General
Unsecured Claims against the AHI Debtors.
(b) TREATMENT: On the Effective Date, each Holder of an
Allowed Class 5 Claim will receive, in full satisfaction of and in exchange
for such Allowed Claim, at the Holder's election, one of the following
alternative treatments:
(i) payment in Cash from Kaanapali Land, in an amount
equal to 15% of the Holder's Allowed Class 5 Claim, which amount shall be
payable, without interest, on or as soon as practicable after the six-month
anniversary of the Effective Date; provided, however, in no event shall
Kaanapali Land be required to pay more than $300,000 in the aggregate to
the Holders of Class 5 Claims that elect to receive the foregoing Cash
distribution. If the aggregate of such payments will exceed $300,000, each
electing Creditor shall receive its Pro Rata share of $300,000 and, on
account of the balance of its Allowed Claim (calculated after giving
credit, on a proportional basis, for the portion of the Claim that has been
satisfied by the Cash distribution), shall receive Class A Shares on the
same basis as provided in clause (ii) below; or
(ii) if a Holder of a Allowed Class 5 Claim does not
elect and receive the Cash treatment set forth in clause (i) above, each
Holder of a Class 5 Allowed Claim shall receive Class A Shares on an
equivalent basis per dollar of Claim as COLA Holders that elect to receive
Class A Shares. In addition, on or immediately following the Effective
Date, Kaanapali Land shall enter into the Kaanapali Land Company Agreement,
which contains certain corporate governance provisions for the benefit of
the Holders of Class A Shares, including, without limitation, the
appointment of the Class A Representative.
(c) VOTING: Class 5 is impaired, and the Holders of Allowed
Class 5 Claims are entitled to vote to accept or reject the Plan.
(d) ELECTION: The election to receive treatment under clause
(i) or clause (ii) of subsection (b) above shall be made by the Class 5
Creditor on the Ballot for accepting or rejecting the Plan. If a Class 5
Creditor fails to make a timely election, the Creditor shall be deemed to
have elected to receive the treatment contained in clause (ii) of
subsection (b) above and shall receive Class A Shares.
5.1 CLASS 5.1 -- CONVENIENCE CLAIMS
(a) CLASSIFICATION: Class 5.1 consists of all Convenience
Claims.
(b) TREATMENT: On the Effective Date, each Holder of an
Allowed Convenience Claim shall be entitled to receive from Kaanapali Land
in full satisfaction of and in exchange for such Claim payment of an
Allowed Convenience Claim in full, in Cash.
(c) VOTING: Claim 5.1 is not impaired, and the Holders of
Class 5.1 Claims are conclusively presumed to have accepted the Plan
pursuant to section 1126(f) of the Bankruptcy Code. Therefore, the Holders
of Claims in Class 5.1 are not entitled to vote to accept or reject the
Plan.
6. CLASS 6 -- INTERCOMPANY CLAIMS
(a) CLASSIFICATION: Class 6 consists of all Intercompany
Claims.
(b) TREATMENT: On the Effective Date, the Intercompany
Claims shall be discharged and extinguished, and the Holders of the
Intercompany Claims shall not receive any distribution or retain any rights
on account of such Claims.
(c) VOTING: Class 6 is impaired, and the Holders of Class 6
Claims are entitled to vote to accept or reject the Plan.
7. CLASS 7 -- SUBSIDIARY STOCK INTERESTS
(a) CLASSIFICATION: Class 7 consists of all Subsidiary Stock
Interests.
(b) TREATMENT: The legal, equitable and contractual rights
of Holders of Class 7 Interests are unaltered by the Plan. Holders of
Class 7 Interests shall be unaffected by the Merger Agreements and the
Plan.
(c) VOTING: Class 7 is not impaired, and the Holders of
Class 7 Subsidiary Stock Interests are conclusively deemed to have accepted
the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore,
the Holders of Interests in Class 7 are not entitled to vote to accept or
reject the Plan.
8. CLASS 8 -- AHI INTERESTS
(a) CLASSIFICATION: Class 8 consists of the AHI Interests.
(b) TREATMENT: After giving effect to the Northbrook Merger
and the Kaanapali Land Merger, upon or immediately following the Effective
Date, the Interests of Northbrook in AHI shall become the Interests of
Kaanapali Land in AHI.
(c) VOTING: Class 8 is impaired, and the Holder of the Class
8 Interest is entitled to vote to accept or reject the Plan.
C. CLASSIFICATION AND TREATMENT OF CLAIMS AGAINST AND INTERESTS IN FHTC
1. CLASS 1A -- PRIORITY CLAIMS
(a) CLASSIFICATION: Class 1A consists of all Priority Claims
against FHTC.
(b) TREATMENT: The legal, equitable and contractual rights
of the Holders of Class 1A Claims are unaltered by the Plan. Unless the
Holder of such Claim and the Debtors or the Reorganized Debtors agree to a
different treatment in writing, each Holder of an Allowed Class 1A Claim
shall receive one of the following alternative treatments, at the election
of the Debtors and Kaanapali Land:
(i) to the extent then due and owing on the Effective
Date, such Claim will be paid in full in Cash by the Reorganized Debtors on
the Effective Date;
(ii) to the extent not due and owing on the Effective
Date, such Claim will be paid in full in Cash by the Reorganized Debtors
when and as such Claim becomes an Allowed Class 1A Claim or as promptly as
practicable thereafter; or
(iii)such Claim will be otherwise treated in any other
manner so that such Claim shall otherwise be rendered unimpaired pursuant
to section 1124 of the Bankruptcy Code.
Any default with respect to any Class 1A Claim that occurred before or
after the commencement of the Chapter 11 Cases shall be deemed cured upon
the Effective Date.
(c) VOTING: Class 1A is not impaired, and the Holders of
Class 1A Claims are conclusively deemed to have accepted the Plan pursuant
to section 1126(f) of the Bankruptcy Code. Therefore, the Holders of
Claims in Class 1A are not entitled to vote to accept or reject the Plan.
2. CLASS 2A -- OTHER SECURED CLAIMS
(a) CLASSIFICATION: Class 2A consists of all Other Secured
Claims against FHTC.
(b) TREATMENT: The legal, equitable and contractual rights
of the Holders of Class 2A Claims are unaltered by the Plan. Unless the
Holder of such Claim, the Debtors or the Reorganized Debtors agree to a
different treatment in writing, each Holder of an Allowed Class 2A Claim
shall receive one of the following alternative treatments, at the election
of the Debtors and Kaanapali Land:
(i) the legal, equitable and contractual rights to
which such Claim entitles the Holder thereof shall be reinstated and the
Holder paid in accordance with such legal, equitable and contractual
rights; or
(ii) such Claim will be otherwise treated in any other
manner so that such Claim shall otherwise be rendered unimpaired pursuant
to section 1124 of the Bankruptcy Code.
Any default with respect to any Class 2A Claim that occurred before or
after the commencement of the Chapter 11 Cases shall be deemed cured upon
the Effective Date.
(c) VOTING: Class 2A is not impaired, 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 Claims
in Class 2A are not entitled to vote to accept or reject the Plan.
3. CLASS 3A -- AFI CLAIM
(a) CLASSIFICATION: Class 3A consists of the AFI Claim.
(b) TREATMENT: On the Effective Date, the AFI Claim shall be
deemed to be an Allowed Claim, and the Holder of the AFI Claim shall
receive on the Effective Date in full satisfaction of and in exchange for
such Allowed Claim a distribution of the portion of the Class B Shares that
is distributed to FHTC pursuant to Article III.B.2 of this Plan.
(c) VOTING: Class 3A is impaired, and AFI is entitled to
vote to accept or reject the Plan.
4. CLASS 4A -- GENERAL UNSECURED CLAIMS
(a) CLASSIFICATION: Class 4A consists of all General
Unsecured Claims against FHTC.
(b) TREATMENT: The legal, equitable and contractual rights
of the Holders of Class 4A Claims are unaltered by the Plan. Unless the
Holder of such Claim, the Debtors or the Reorganized Debtors agree to a
different treatment in writing, each Holder of an Allowed Class 4A Claim
shall receive one of the following alternative treatments, at the election
of the Debtors and Kaanapali Land:
(i) to the extent then due and owing on the Effective
Date, such Claim will be paid in full in Cash by the Reorganized Debtors on
the Effective Date;
(ii) to the extent not due and owing on the Effective
Date, such Claim will be paid in full in Cash by the Reorganized Debtors
when and as such Claim becomes an Allowed Class 4A Claim or as promptly as
practicable thereafter; or
(iii)such Claim will be otherwise treated in any other
manner so that such Claim shall otherwise be rendered unimpaired pursuant
to section 1124 of the Bankruptcy Code.
Any default with respect to any Class 4A Claim that occurred before
or after the commencement of the Chapter 11 Cases shall be deemed cured
upon the Effective Date.
(c) VOTING: Class 4A is not impaired, and the Holders of
Class 4A Claims are conclusively deemed to have accepted the Plan pursuant
to section 1126(f) of the Bankruptcy Code. Therefore, the Holders of
Claims in Class 4A are not entitled to vote to accept or reject the Plan.
5. CLASS 5A -- OLD STOCK INTERESTS
(a) CLASSIFICATION: Class 5A consists of all Old Stock
Interests.
(b) TREATMENT: On or prior to the Effective Date, Northbrook
will be merged into FHTC pursuant to the Northbrook Merger Agreement, and
the Old Stock Interests will be cancelled pursuant to the Northbrook Merger
Agreement.
(c) VOTING: Class 5A is impaired, and the Holders of Allowed
Class 5A Interests are entitled to vote to accept or reject the Plan.
D. SPECIAL PROVISION GOVERNING UNIMPAIRED CLAIMS
Except as otherwise provided in the Plan, including as provided in
Article X, nothing under the Plan shall affect the Debtors' or the
Reorganized Debtors' rights in respect of any Unimpaired Claims, including,
but not limited to, all rights in respect of legal and equitable defenses
to or setoffs or recoupments against such Unimpaired Claims.
ARTICLE IV.
NON-CONSENSUAL CONFIRMATION
In the event that any Impaired Class of Claims or Interests fails to
accept the Plan in accordance with section 1129(a)(8) of the Bankruptcy
Code, the Debtors reserve the right to (a) request that the Bankruptcy
Court confirm the Plan in accordance with section 1129(b) of the Bankruptcy
Code and/or (b) modify the Plan in accordance with Article XII.D of the
Plan.
ARTICLE V.
MEANS FOR IMPLEMENTATION OF THE PLAN
A. CONTINUED CORPORATE EXISTENCE
Except as otherwise provided in the Plan or the Confirmation Order,
the Debtors shall, as Reorganized Debtors, continue to exist after the
Effective Date as separate legal entities, in accordance with applicable
laws in the respective jurisdictions in which they are incorporated or
organized and pursuant to their respective certificates of incorporation
and by-laws or other organizational documents as they may be amended or
amended and restated pursuant to the Plan and without prejudice to any
right to alter or terminate such existence (whether by merger or otherwise)
under such applicable state law. On and after the Effective Date, the
Reorganized Debtors may operate their businesses and may use, acquire or
dispose of their property and compromise or settle any Claims or Interests,
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 or the Confirmation Order.
Notwithstanding anything to the contrary in this Plan, including Article
V.I. hereof as to substantive consolidation, the Unimpaired Claims against
a particular Debtor or Reorganized Debtor shall remain the obligations
solely of such Debtor or Reorganized Debtor and shall not become
obligations of any other Debtor or Reorganized Debtor by virtue of the
Plan, the Chapter 11 Cases or otherwise.
B. CONSUMMATION OF THE NORTHBROOK MERGER
On or prior to the Effective Date, and as a condition precedent to
the other transactions that are to take place under the Plan on the
Effective Date, the Northbrook Merger shall occur upon the terms and
conditions of the Northbrook Merger Agreement, and pursuant thereto, among
other things, (i) Northbrook shall merge with and into FHTC, with FHTC
being the surviving corporation, and the separate corporate existence of
Northbrook shall cease, and (ii) 1,466,573 Class B Shares shall be issued
to Pacific Holdings in exchange for the Old Northbrook Stock. On or prior
to the Effective Date, Northbrook and FHTC shall take all such actions as
may be necessary or appropriate to effect the Northbrook Merger on the
terms and conditions set forth in the Plan and the Northbrook Merger
Agreement. FHTC and Northbrook shall cause certificates of merger to be
executed, acknowledged and filed as may otherwise be required under the
laws of their respective states of incorporation and will take or cause to
be taken all other actions, including making appropriate filings or
recordings, that may be required by the laws of their respective states of
incorporation or other applicable law in connection with the Northbrook
Merger.
C. VESTING OF ASSETS
On the Effective Date, except as otherwise provided in the Plan or
the Confirmation Order, all property of the Estates, and any property
acquired by the Debtors or the Reorganized Debtors under the Plan, shall
vest in the Reorganized Debtors, free and clear of all Claims, liens,
charges, or other encumbrances and Interests.
D. CANCELLATION OF INSTRUMENTS AND SECURITIES
On the Effective Date, except to the extent provided otherwise in the
Plan, the COLA Notes, the Old Northbrook Stock, the Old Stock Interests and
the Northbrook Senior Debt Instruments, together with all related notes,
certificates, security agreements, mortgages, pledges, indemnities,
collateral assignments, undertakings, guaranties, and other instruments and
documents, shall no longer be outstanding, shall be deemed to be canceled,
retired and terminated, and shall cease to exist as against the Debtors.
On the Effective Date, except to the extent provided otherwise in the Plan,
any indenture relating to any of the foregoing, including, without
limitation, the COLA Indenture, shall be deemed to be canceled as against
the Debtors, as permitted by section 1123(a)(5)(F) of the Bankruptcy Code.
E. ISSUANCE OF NEW SECURITIES; EXECUTION OF RELATED DOCUMENTS
On or prior to the Effective Date, FHTC shall issue or cause to be
issued two classes of shares pursuant to the Plan and the Northbrook Merger
Agreement, without further act or action under applicable law, regulation,
order or rule. Class B Shares shall be issued pursuant to the Plan to the
Holders of the Northbrook Senior Claims in Class 2, to the Holders of the
AFI COLA Note Claims in Class 4 and, pursuant to the Northbrook Merger, to
Pacific Holdings. Class A Shares shall be issued to the COLA Holders
(other than to AFI) and Class 5 Claimants that elect (or are deemed to have
elected) to receive Class A Shares pursuant to the Plan. Class A Shares
shall be identical in all respects to Class B Shares (including with
respect to voting and distributions). No stock certificates will be issued
by FHTC, with such ownership reflected on the records of FHTC. Reorganized
Debtors shall execute and deliver such other agreements, documents and
instruments as are required to be executed pursuant to the terms of the
Plan or the Northbrook Merger Agreement.
F. CONSUMMATION OF THE KAANAPALI LAND MERGER
On or immediately following the Effective Date, and following the
issuance of the Class A Shares and Class B Shares by FHTC pursuant to the
Plan and the Northbrook Merger Agreement, the Kaanapali Land Merger shall
occur upon the terms and conditions of the Kaanapali Land Merger Agreement,
and pursuant thereto, among other things, (i) FHTC shall merge with and
into Kaanapali Land, with Kaanapali Land being the surviving entity as a
Delaware limited liability company that elects to be taxed as a corporation
for federal income tax purposes, and with the separate corporate existence
of FHTC ceasing, (ii) Pacific Holdings shall continue as the manager of
Kaanapali Land, (iii) each outstanding Class A Share as issued by FHTC
shall be converted without further action into the right to receive one
Class A Share as issued by Kaanapali Land, and (iv) each outstanding Class
B Share as issued by FHTC shall be converted without further action into
the right to receive one Class B Share as issued by Kaanapali Land. Class
A Shares as issued by Kaanapali Land shall be identical in all respects to
Class B Shares as issued by Kaanapali Land (including with respect to
voting and distributions) except for certain corporate governance
provisions contained in the Kaanapali Land Company Agreement for the
benefit of Class A Shares.
FHTC and Kaanapali Land shall take all such actions as may be
necessary or appropriate to effect the Kaanapali Land Merger on the terms
and conditions set forth in the Plan and the Kaanapali Land Merger
Agreement. FHTC and Kaanapali Land shall cause certificates of merger to
be executed, acknowledged and filed as may otherwise be required under the
laws of their respective states of formation and will take or cause to be
taken all other actions, including making appropriate filings or
recordings, that may be required by the laws of their respective states of
formation or other applicable law in connection with the Kaanapali Land
Merger.
Class A Shares will be freely transferable. Each recipient of Class
A Shares will receive appropriate evidence of ownership of its interest in
Kaanapali Land, and such ownership shall be reflected on the shareholder
register of Kaanapali Land as maintained by its registered transfer agent.
Kaanapali Land shall be under no obligation to cause the Kaanapali Land
Shares to be listed for trading on any securities exchange or quoted on any
automated quotation system.
G. KAANAPALI LAND COMPANY AGREEMENT
On or immediately following the Effective Date and pursuant to the
Kaanapali Land Merger Agreement, the Kaanapali Land Company Agreement, as
amended and restated in its entirety as required by the Kaanapali Land
Merger Agreement, shall be adopted, which, among other things, shall
provide certain corporate governance provisions for the benefit of the
holders of the Class A Shares and shall provide for the appointment of the
Class A Representative. The following paragraphs under this subsection G
set forth a summary of certain of the salient provisions of the Kaanapali
Land Company Agreement, and the terms of the Kaanapali Land Company
Agreement shall control in all respects.
Under the terms of the Kaanapali Land Company Agreement, Bank One
Trust Company, N.A. or another institution reasonably acceptable to both
Kaanapali Land and Bank One Trust Company, N.A., shall be appointed as the
Class A Representative. Kaanapali Land shall deliver to the Class A
Representative copies of all reports filed by Kaanapali Land with the
Securities and Exchange Commission (including, without limitation, its
annual and quarterly financial reports). The Class A Representative shall
be entitled to reasonable access to the books and records of Kaanapali Land
and to an annual meeting with the manager of Kaanapali Land and its
executive team to review the operations of Kaanapali Land. The position of
the Class A Representative shall terminate on the earlier of the fifth
anniversary of the Effective Date or at such time as the number of
outstanding Class A Shares is less than 5% of the total outstanding shares
of Kaanapali Land as of the Effective Date. All reasonable fees and
expenses of the Class A Representative shall be paid by Kaanapali Land.
Without the consent of the Class A Representative, Kaanapali Land
shall not incur any indebtedness from the Class B shareholders or their
affiliates if, immediately after giving effect to the incurrence of such
indebtedness and the application of the proceeds thereof, there would be in
excess of $25 million in aggregate principal indebtedness from the Class B
shareholders or their affiliates if and for so long as there is a Class A
Representative. Any such indebtedness shall bear interest at the PRIME
RATE" as announced from time to time by Bank One and may be secured by
property of Kaanapali Land and its subsidiaries. Kaanapali Land shall
deliver a certificate to the Class A Representative, in connection with the
delivery of the annual report, to the effect that all transactions entered
into between Kaanapali Land and any of the Class B shareholders or their
affiliates after the Effective Date and during that fiscal year are
described in the annual report in all material respects and are on terms no
less favorable, at the time of the transaction, than those available from
unaffiliated third parties for similar transactions in the same geographic
area.
Under the terms of the Kaanapali Land Company Agreement, the Class B
shareholders may not sell or transfer any of their shares in Kaanapali
Land, other than to their affiliates, unless such transaction provides for
the sale and transfer of all Class A Shares on the same terms and
conditions. In such event, the Class A shareholders shall be required to
sell their Class A Shares in such transaction.
H. CORPORATE GOVERNANCE, MANAGEMENT AND CORPORATE ACTION
1. KAANAPALI LAND COMPANY AGREEMENT
On the Effective Date, upon consummation of the Kaanapali Land
Merger, the Kaanapali Land Company Agreement, as amended and restated in
its entirety as required by the Kaanapali Land Merger Agreement, shall be
the limited liability company agreement of Kaanapali Land. Notwithstanding
any other provision of the Plan, the certificates of incorporation and
other organizational documents of the Reorganized Debtors will, among other
things, prohibit the issuance of nonvoting equity securities to the extent
required by section 1123(a) of the Bankruptcy Code. On or before the
Effective Date, each of the Reorganized Debtors shall amend its certificate
of incorporation, bylaws or other organizational documents to the extent
required to comply with the requirements of the Bankruptcy Code and the
terms of this Plan. After the Effective Date, the Reorganized Debtors may
amend and restate their certificates of incorporation and bylaws as
provided therein or by applicable law.
2. MANAGER OF KAANAPALI LAND
Subject to any requirement of Bankruptcy Court approval pursuant to
section 1129(a)(5) of the Bankruptcy Code, on the Effective Date, upon
consummation of the Kaanapali Land Merger, Kaanapali Land will be managed
by Pacific Holdings, pursuant to the Kaanapali Land Company Agreement. The
directors and officers of each Reorganized Debtor (other than Kaanapali
Land) shall be the same individuals serving as officers and directors of
each respective Reorganized Debtor prior to the Effective Date. Pursuant
to section 1129(a)(5), the Debtors will disclose, on or prior to the
Confirmation Date, the identity and affiliations of any other Person
proposed to serve on the initial board of directors of the Reorganized
Debtors, as an initial officer of the Reorganized Debtors or as manager of
Kaanapali Land and, to the extent such Person is an Insider, the nature of
any compensation for such Person. The classification and composition of
the board of directors shall be consistent with the certificates of
incorporation. Each such director and officer shall serve from and after
the Effective Date pursuant to the terms of certificates of incorporation
and bylaws of the Reorganized Debtors and applicable law.
3. CORPORATE ACTION
On or immediately following the Effective Date, as provided in the
Plan and the Merger Agreements, all actions contemplated by the Plan and
the Merger Agreements shall be deemed, without further action of any kind
or nature, to be authorized and approved in all respects (subject to the
provisions of the Plan). All matters provided for in the Plan and the
Merger Agreements involving the corporate structure of the Debtors or the
Reorganized Debtors, and any corporate action required by the Debtors or
the Reorganized Debtors in connection with the Plan and the Merger
Agreements, shall be deemed to have occurred and shall be in effect,
without any requirement of further action by the security holders or
directors of the Debtors or the Reorganized Debtors. On the Effective
Date, the appropriate officers or manager of the Reorganized Debtors and
members of the boards of directors of the Reorganized Debtors are
authorized and directed to issue, execute and deliver the agreements,
documents, securities and instruments contemplated by the Plan or the
Merger Agreements in the name of and on behalf of the Reorganized Debtors.
I. SUBSTANTIVE CONSOLIDATION FOR PURPOSES OF TREATING IMPAIRED CLAIMS
(1) The Plan is premised upon and provides for the substantive
consolidation of the AHI Debtors only for purposes of voting, confirmation
and distribution for each of Class 2, Class 4 Class 5 and Class 5.1 Claims
under the Plan. The Plan does not contemplate substantive consolidation of
the Debtors or their Estates with respect to the other Classes of Claims or
Interests set forth in the Plan, the merger of any Debtor entity into
another (except as specifically provided for in Articles V.B., V.F. and
V.K.2 of the Plan), the transfer of any asset of any Debtor or for any
other purpose. On the Effective Date, (a) any obligation of any Debtor and
all guaranties with respect to Class 2, 4, 5 and 5.1 Claims thereof
executed by one or more of the other Debtors shall be treated as a single
obligation, and any obligation of two or more Debtors, and all multiple
Impaired Claims against such entities on account of such joint obligations,
shall be treated and Allowed only as a single Impaired Claim against the
consolidated Debtors, and (b) each Class 2, 4, 5 or 5.1 Claim Filed in the
Chapter 11 Cases against more than one Debtor shall be treated as one Class
2, 4, 5 or 5.1 Claim for distribution purposes. Substantive consolidation
shall not (other than for purposes related to the Plan set forth above) (x)
affect the legal and corporate structures of the Reorganized Debtors or
affect or modify in any way the ownership of any asset of any particular
Debtor, (y) cause any Debtor to be liable for any Claim or Unimpaired Claim
under the Plan for which it otherwise is not liable, and the liability of
any Debtor for any such Claim shall not be affected by such substantive
consolidation, and (z) affect Interests in the AHI Subsidiaries. On the
Effective Date, except as otherwise expressly provided for in the Plan, the
Interests in the AHI Subsidiaries shall remain outstanding.
(2) Unless the Bankruptcy Court has approved the substantive
consolidation of the Estates by a prior order, this Plan shall serve as,
and shall be deemed to be, a motion for entry of an order substantively
consolidating the AHI Debtors as provided in Article V.I(1) hereof. If no
objection to substantive consolidation is timely filed and served by any
Holder of an Impaired Claim affected by the Plan as provided herein on or
before the deadline for objection to Confirmation of the Plan, the order
approving such substantive consolidation (which may be the Confirmation
Order) may be entered by the Bankruptcy Court. If any such objections are
timely Filed and served, a hearing with respect to the substantive
consolidation of the Estates and the objections thereto shall be scheduled
by the Bankruptcy Court, which hearing may, but is not required to,
coincide with the Confirmation Hearing.
J. SOURCES OF CASH FOR PLAN DISTRIBUTIONS
Except as otherwise provided in the Plan or the Confirmation Order,
all Cash necessary for the Reorganized Debtors to make payments pursuant to
the Plan shall be obtained from existing Cash balances, the operations of
the Debtors or from sales of assets of the Reorganized Debtors.
K. AFI DISTRIBUTION; OTHER CORPORATE RESTRUCTURINGS
1. AFI DISTRIBUTION
Following the Effective Date, AFI, AFLP and Kaanapali Land will cause
the following transactions to take place (collectively, the AFI
DISTRIBUTION"): (i) the Class B Shares to which AFI is entitled
(x) pursuant to Class 2 and Class 3A of the Plan and (y) pursuant to Class
4 of the Plan on account of the AFI COLA Note Claims will be transferred to
AFI's members in accordance with their membership interests, and then the
shares so transferred by AFI to AFLP will be transferred to AFLP's
partners, which will include Kaanapali Land, in accordance with their
partnership interests, and (ii) the Class B Shares thereby transferred to
Kaanapali Land shall be retired and shall no longer be issued and
outstanding Class B Shares.
2. OTHER CORPORATE RESTRUCTURINGS
The Reorganized Debtors are authorized pursuant to the Plan to enter
into and consummate such mergers, consolidations and asset transfers among
themselves as they deem appropriate to rationalize or simplify the
corporate structure and organization of the Reorganized Debtors.
L. ISSUANCE OF SECURED NOTE
On or promptly after the Effective Date, AHI shall issue a promissory
note to Kaanapali Land as additional consideration for the Plan's
conversion of the Claims of Holders of Northbrook Senior Claims, the Claims
of the COLA Holders and the Claims of Holders of certain electing General
Unsecured Claims into equity of Kaanapali Land. The amount of the note
will be determined by Kaanapali Land in its reasonable discretion on or
prior to the Effective Date. Repayment of the Note shall be secured by
mortgages on the principal assets of AHI and the AHI Debtors, which will be
guarantors of the Note, as determined from time to time by Kaanapali Land.
The note shall accrue interest at a rate per annum equal to the long-term
Average Federal Rate as of the date two business days prior to the
Effective Date as quoted in The Wall Street Journal. No payments shall be
due under the note until its maturity on the tenth anniversary of the
Effective Date, at which time all principal and accrued interest shall be
due and payable. However, AHI, at its option, will be entitled to make
prepayments in whole or in part on the note without penalty. Kaanapali
Land shall be entitled to transfer all or any portion of the note for
value, contribute all or any portion of the note to the equity of AHI, or
otherwise deal with the note from time to time as it deems appropriate.
ARTICLE VI.
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
A. ASSUMPTION OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
On the Effective Date, all executory contracts, including all
Compensation and Benefit Plans, and unexpired leases of the Reorganized
Debtors will be deemed rejected in accordance with the provisions and
requirements of sections 365 and 1123 of the Bankruptcy Code, except those
executory contracts and unexpired leases that (1) have previously been
assumed by Order of the Bankruptcy Court, (2) are the subject of a motion
to assume pending on the Effective Date, (3) are identified on a list of
executory contracts and unexpired leases to be filed by the Debtors with
the Bankruptcy Court ten days prior to the hearing to consider Confirmation
of the Plan or (4) are assumed pursuant to the terms of the Plan. Entry of
the Confirmation Order by the Bankruptcy Court shall constitute (i)
approval of such assumptions and rejections pursuant to sections 365(a) and
1123 of the Bankruptcy Code and (ii) the consent of any non-Debtor party to
any executory contract or unexpired lease that may otherwise be required,
under the terms of such executory contract or unexpired lease, to the
consummation of the Mergers provided for under the Merger Agreements and
the Plan.
B. CLAIMS BASED ON REJECTION OF EXECUTORY CONTRACTS OR UNEXPIRED LEASES
All proofs of claim with respect to Claims arising from the rejection
of executory contracts or unexpired leases, if any, must be Filed with the
Bankruptcy Court within thirty (30) days after the date of entry of an
order of the Bankruptcy Court approving such rejection. Any Claims arising
from the rejection of executory contracts or unexpired leases that become
Allowed Claims are classified and shall be treated as Class 5 or 4A General
Unsecured Claims, as the case may be. Any Claims arising from the
rejection of an executory contract or unexpired lease not Filed within such
times will be forever barred from assertion against the Debtor or
Reorganized Debtors, their Estates and property unless otherwise ordered by
the Bankruptcy Court or provided in this Plan. All such Claims for which
proofs of claim are required to be Filed will be, and will be treated as,
General Unsecured Claims subject to the provisions of Article III hereof,
subject to any limitation on allowance of such Claims under section 502(b)
of the Bankruptcy Code or otherwise.
C. CURE OF DEFAULTS FOR ASSUMED EXECUTORY CONTRACTS AND UNEXPIRED LEASES
Any monetary amounts by which each executory contract and unexpired
lease to be assumed pursuant to the Plan is in default shall be satisfied,
pursuant to section 365(b)(1) of the Bankruptcy Code, by payment of the
default amount in Cash on the Effective Date or on such other terms as the
parties to such executory contracts or unexpired leases may otherwise
agree. In the event of a dispute regarding: (1) the amount of any cure
payments; (2) the ability of the Reorganized Debtors or any assignee to
provide ADEQUATE ASSURANCE OF FUTURE PERFORMANCE" (within the meaning of
section 365 of the Bankruptcy Code) under the contract or lease to be
assumed; or (3) any other matter pertaining to assumption, the cure
payments required by section 365(b)(1) of the Bankruptcy Code shall be made
following the entry of a Final Order resolving the dispute and approving
the assumption.
D. INDEMNIFICATION OF DIRECTORS, OFFICERS, MANAGERS AND EMPLOYEES
The obligations of each of the Debtors to indemnify any Person or
Entity serving at any time on or prior to the Effective Date as one of its
directors, officers, managers or employees by reason of such Person's or
Entity's service in such capacity, or as a director, officer, manager or
employee of any other corporation or legal entity, to the extent provided
in the Debtors' constituent documents or by a written agreement with the
Debtors or the applicable state's general corporation law, each as
applicable, shall be deemed and treated as executory contracts that are
assumed by the Debtors pursuant to the Plan and section 365 of the
Bankruptcy Code as of the Effective Date. Any such indemnification
obligations shall survive unimpaired and unaffected by entry of the
Confirmation Order, irrespective of whether such indemnification is owed
for an act or event occurring before or after the Petition Date.
E. COMPENSATION AND BENEFIT PROGRAMS
Each Debtor providing retiree medical benefits and retiree life
insurance pursuant to a memorandum of understanding or other contract or
agreement shall be deemed to have assumed such agreement to provide retiree
medical and life insurance benefits. Each Debtor shall continue to perform
its retiree medical obligations through 2004, when those benefits expire by
the terms of the applicable union agreements concerning bargaining union
employees. With respect to other employees that are eligible for such
benefits, each Debtor shall continue to provide retiree medical benefits
through 2004, in keeping with its past practice of making similar retiree
medical coverage available to union and non-union employees, or such later
time as such Reorganized Debtor may determine in its sole discretion. Each
Reorganized Debtor will continue to perform its retiree life insurance
obligations in accordance with its current program, as such program may be
amended from time to time by such Reorganized Debtor in its sole
discretion. In addition, each Reorganized Debtor shall assume and continue
to perform all obligations under its self-insured workers' compensation
programs in effect as of the Petition Date.
ARTICLE VII.
PROVISIONS GOVERNING DISTRIBUTIONS
A. TIMING OF DISTRIBUTIONS
1. Except as otherwise provided in the Plan, distributions to be
made on the Effective Date on account of Claims and Interests that are
Allowed as of the Effective Date and are entitled to receive distributions
under the Plan shall be made on the Effective Date or as promptly
thereafter as practicable. Any payment or distribution required to be made
under the Plan on a day other than a Business Day shall be made on the next
succeeding Business Day.
2. Distributions on account of Disputed Claims that become Allowed
Claims after the Effective Date shall be made pursuant to Articles III, VII
and VIII of this Plan. Notwithstanding the date on which any distribution
of Kaanapali Land Shares is made to a Holder of a Claim or Interest that is
an Allowed Claim or Allowed Interest on the Effective Date, as of the date
of the distribution, such Holder shall be deemed to have the rights of a
Holder of such Kaanapali Land Shares distributed as of the Effective Date.
B. METHODS OF DISTRIBUTION
1. DISTRIBUTIONS TO HOLDERS OF COLA NOTE CLAIMS, NORTHBROOK SENIOR
CLAIMS AND OLD NORTHBROOK STOCK
(a) DISTRIBUTIONS. All distributions provided for in the Plan on
account of Allowed COLA Note Claims, Northbrook Senior Claims and Old
Northbrook Stock shall be made by the Reorganized Debtors to the Disbursing
Agent for delivery by the Disbursing Agent to individual holders of such
Claims and Interests as provided in the Plan. Notwithstanding the
provisions of Article V.D above regarding cancellation of the COLA Note
Indenture, the distribution provisions of the COLA Note Indenture shall
continue in effect to the extent necessary to authorize the Disbursing
Agent to receive and distribute to Holders of Allowed COLA Note Claims
distributions received by the Disbursing Agent pursuant to the Plan on
account of Allowed COLA Note Claims and shall terminate completely upon
completion of all distributions. Neither Kaanapali Land, the Reorganized
Debtors nor the Indenture Trustee shall have liability for any act or
omission of the Disbursing Agent. The Disbursing Agent will serve without
bond and may employ or contract with other entities to assist in or make
the distributions required by the Plan.
(b) LETTER OF TRANSMITTAL. As soon as practicable after the
Effective Date, Kaanapali Land shall cause the Disbursing Agent to send a
letter of transmittal to each Holder of an Allowed COLA Note Claim or other
Creditor advising such Holder of the effectiveness of the Mergers and the
Plan and the instructions for delivering to the Disbursing Agent any COLA
Notes or other evidence of indebtedness in exchange for the Kaanapali Land
Shares to be issued or distributed pursuant to the Plan. Such letter of
transmittal shall specify that delivery of any COLA Notes or other evidence
of indebtedness will be effected, and that risk of loss and title thereto
shall pass, only upon delivery of such COLA Notes or other evidence of
indebtedness to the Disbursing Agent in accordance with the terms and
conditions of such letter of transmittal, such letter of transmittal to be
in such form and have such other provisions as the Reorganized Debtors may
reasonably agree.
(c) LOST OR STOLEN NOTES OR STOCK. In addition to any requirements
under the COLA Indenture, or any applicable agreement, in the event any
COLA Notes or other evidence of indebtedness shall have been lost, stolen
or destroyed, then, in lieu of delivery of such COLA Note or other evidence
of indebtedness, such Holder shall deliver to the Reorganized Debtors
(i) evidence reasonably satisfactory to the Reorganized Debtors of the
loss, theft or destruction and (ii) such security or indemnity as may be
required by the Reorganized Debtors to hold the Reorganized Debtors
harmless from any damages, liabilities or costs incurred in treating such
individual as a Holder of an Allowed Claim or Interest. Upon the Effective
Date, all COLA Notes or other evidence of indebtedness shall be deemed
canceled, and the holders of the COLA Notes or other evidence of
indebtedness shall, for all purposes under the Plan, be deemed to have
surrendered such Note.
(d) FAILURE TO SURRENDER CANCELED NOTES AND STOCK. Any Holder of a
COLA Note Claim or other evidence of indebtedness that fails to surrender
any applicable COLA Note or other evidence of indebtedness required to be
delivered hereunder, or fails to comply with the provisions of Article
VII.B.1(c), within two years after the Effective Date, shall have its Claim
or Interest for a distribution pursuant to the Plan on account of such COLA
Note or Old Northbrook Stock or Northbrook Senior Debt Instrument
discharged and shall be forever barred from asserting any such Claim or
Interest against or in the Reorganized Debtors or their respective
property, and, in such case, any Kaanapali Land Shares held for
distribution on account of such Claim or Interest shall be disposed of
pursuant to the provisions of Article VII.C below; provided, however, that
Kaanapali Land may, in its sole discretion, waive this requirement for
distribution.
(e) DISTRIBUTION RECORD DATE. As of the close of business on the
Distribution Record Date, the respective transfer books and records for the
COLA Notes and the Old Northbrook Stock as maintained by AHI's transfer
agent or the Indenture Trustee (in the case of a COLA Note) or Northbrook
(in the case of Old Northbrook Stock), or their respective agents, shall be
closed and any transfer of a COLA Note or Old Northbrook Stock or any
interest therein shall be prohibited. The Reorganized Debtors and their
respective agents will have no obligation to recognize the transfer of, or
the sale of any participation in, any COLA Note, Northbrook Senior Debt
Instrument or Old Northbrook Stock occurring after the Distribution Record
Date and shall be entitled for all purposes herein to recognize and deal
only with those Holders of record as of the close of business on the
Distribution Record Date.
(f) UNREGISTERED TRANSFERS. In the event of a transfer of
ownership of a COLA Note or Old Northbrook Stock that is not registered in
the respective transfer books and records of AHI's transfer agent or the
Indenture Trustee (in the case of a COLA Note) or Northbrook (in the case
of Old Northbrook Stock), the property to be distributed to the Holder of
the COLA Note Claim or Old Northbrook Stock Interest with respect to such
Claim or Interest shall be delivered to the Holder of record on the
Distribution Record Date unless the transferee of such Holder delivers an
executed letter of transmittal to the Disbursing Agent, in form
satisfactory to the Disbursing Agent, accompanied by such documents as are
required to evidence and effect such transfer and to evidence that all
applicable transfer taxes have been paid.
(g) SHARES ISSUED IN DIFFERENT NAME. If any Kaanapali Land Shares
are to be issued or distributed in a name other than that in which the COLA
Note or Old Northbrook Stock surrendered in exchange therefor is
registered, it shall be a condition of such exchange that (i) the COLA Note
or Old Northbrook Stock so surrendered shall be transferable, and shall be
properly assigned and endorsed, (ii) such transfer shall otherwise be
proper, and (iii) the Holder requesting such transfer shall pay all
transfer or other taxes payable by reason of the foregoing and establish to
the satisfaction of the Disbursing Agent that such taxes have been paid.
(h) FRACTIONAL SHARES. Kaanapali Land Shares to be distributed
under the Plan will be issued in whole or fractional shares, to the nearest
one-one hundredth of a share. No cash will be distributed on account of
any smaller fractional amount.
2. DISTRIBUTIONS TO HOLDERS OF OTHER CLAIMS
All distributions provided for in the Plan on account of Allowed
Other Claims will be made by the Reorganized Debtors, or such Disbursing
Agents as the Reorganized Debtors may employ or contract with, as provided
herein or in the Confirmation Order. Neither the Reorganized Debtors nor
Kaanapali Land shall have liability for any act or omission of any
Disbursing Agent. Each Disbursing Agent will serve without bond, and any
Disbursing Agent may employ or contract with other entities to assist in or
make the distributions required by the Plan.
3. INTEREST ON CLAIMS
Unless otherwise specifically provided for in the Plan or the
Confirmation Order, or required by applicable bankruptcy law, postpetition
interest shall not accrue or be paid on any Claims and no Holders of a
Claim shall be entitled to interest on or after the Petition Date on any
Claim.
4. METHOD OF CASH PAYMENT
Payments of Cash made pursuant to the Plan shall be in U.S. Dollars
and shall be made, at the option and in the sole discretion of the
Reorganized Debtors, by (a) checks drawn on or (b) wire transfer from a
domestic bank selected by the Reorganized Debtors. Cash payments to
foreign creditors may be made, at the option of the Reorganized Debtors, in
such funds and by such means as are necessary or customary in a particular
foreign jurisdiction. Payments will be made as an when required by the
Plan.
C. UNDELIVERABLE AND UNCLAIMED DISTRIBUTIONS
1. DELIVERY OF DISTRIBUTIONS
All property under the Plan to be distributed by mail shall be sent
to the latest mailing address Filed with the Bankruptcy Court for the party
entitled thereto (which may include a proof of Claim or notice of transfer
of a Claim) or, if no such mailing address has been so Filed, the mailing
address reflected in the Debtor's Schedules or, in the case of the Holders
of Allowed COLA Note Claims, to the mailing address maintained of record by
the Debtors' transfer agent as of the Distribution Date.
2. UNDELIVERABLE DISTRIBUTIONS
If any distribution to the Holder of an Allowed Claim or Allowed
Interest is returned as undeliverable or otherwise unclaimed, no further
distributions shall be made to such Holder unless and until the Disbursing
Agent is notified in writing of such Holder's then-current address.
Undeliverable distributions shall be returned to Kaanapali Land and will
remain in the possession of Kaanapali Land pursuant to this Article VII.C
until such time as a distribution becomes deliverable. Undeliverable
distributions shall not be entitled to any interest, dividends or other
accruals of any kind. The Disbursing Agent shall make all distributions
that have become deliverable or have been claimed since the distribution
date as soon as practicable after such distribution becomes deliverable.
3. FAILURE TO CLAIM UNDELIVERABLE DISTRIBUTIONS
Any Holder of an Allowed Claim or Allowed Interest that does not
assert a Claim or Interest pursuant to the Plan for an undeliverable or
unclaimed distribution within one year after the Effective Date shall have
its Claim or Interest for such undeliverable distribution discharged and
shall be forever barred and enjoined from asserting any such Claim or
Interest against or in the Reorganized Debtors, their Estates or their
property. In such cases (i) any Cash held for distribution on account of
such Claims for undeliverable or unclaimed distributions shall be property
of the Reorganized Debtors, in accordance with Article VII.C.2, free of any
restrictions thereon and (ii) any Kaanapali Land Shares held for
distribution on account of such Claims or Interests shall be canceled and
of no further force or effect. Nothing contained in the Plan shall require
the Reorganized Debtors, the Disbursing Agent, the Indenture Trustee or
AHI's transfer agent to attempt to locate any Holder of an Allowed Claim or
Allowed Interest.
D. COMPLIANCE WITH TAX REQUIREMENTS
In connection with the Plan, to the extent applicable, the
Reorganized Debtors shall comply with all tax withholding and reporting
requirements imposed on them by any governmental unit, and all
distributions pursuant to the Plan shall be subject to such withholding and
reporting requirements. The Reorganized Debtors shall be authorized to
take any and all actions necessary or appropriate to comply with such
withholding and reporting requirements. All Entities holding Claims or
Interests shall be required to provide any information necessary to effect
the withholding of such taxes. Notwithstanding any other provision of this
Plan, each Person or Entity that has received any distribution pursuant to
the Plan shall have sole and exclusive responsibility for the satisfaction
and payment of any tax obligation imposed by any governmental unit,
including income, withholding and tax obligations, on account of such
distribution.
E. COMPENSATION AND REIMBURSEMENT FOR SERVICES RELATED TO DISTRIBUTIONS
The Disbursing Agent providing services related to distributions
pursuant to the Plan will receive from the Reorganized Debtors, without
further Bankruptcy Court approval, reasonable compensation for such
services and reimbursement of reasonable out-of-pocket expenses incurred in
connection with such services. These payments will be made on terms agreed
to with the Reorganized Debtors.
F. SETOFFS
The Reorganized Debtors may, pursuant to section 553 of the
Bankruptcy Code or applicable non-bankruptcy law, but shall not be required
to, set off against any Allowed Claim and the distributions to be made
pursuant to the Plan on account of such Claim (before any distribution is
made on account of such Claim), the claims, rights and Causes of Action of
any nature that the Debtors or Reorganized Debtors may hold against the
Holder of such Allowed Claim; provided, however, that neither the failure
to effect such a setoff nor the allowance of any Claim hereunder shall
constitute a waiver or release by the Debtors or Reorganized Debtors of any
such claims, rights and Causes of Action that the Debtors or Reorganized
Debtors may possess against such Holder.
ARTICLE VIII.
PROCEDURES FOR RESOLVING DISPUTED CLAIMS
A. PROSECUTION OF OBJECTIONS TO CLAIMS AND INTERESTS
After the Effective Date, the Debtors and the Reorganized Debtors
shall have the exclusive authority to File objections to, settle,
compromise, withdraw or litigate to judgment objections to Claims. From
and after the Effective Date, the Debtors and the Reorganized Debtors may
settle or compromise any Disputed Claim without approval of the Bankruptcy
Court.
B. PAYMENTS AND DISTRIBUTIONS ON DISPUTED CLAIMS
Notwithstanding any provision in the Plan to the contrary, except as
otherwise agreed by the Reorganized Debtors in their sole discretion, no
payments or distributions will be made with respect to all or any portion
of a Disputed Claim until the resolution of such disputes by settlement or
Final Order and the Disputed Claim becomes an Allowed Claim.
C. DISPUTED CLAIMS RESERVE
The Reorganized Debtors shall establish the Disputed Claims Reserve
by (i) in the case of Disputed Class 5 Claims that elected to be treated as
COLA Holders, issuance into escrow promptly after the Effective Date of
Kaanapali Land Shares in a number equal to 100% of the distributions to
which Holders of Disputed Class 5 Claims would be entitled if their Claims
were allowed in the Disputed Claim Amount, and (ii) in the case of Disputed
Class 5 Claims that elected to receive cash, by reserving on the date of
distribution on the records of the Reorganized Debtors an amount equal to
100% of the distributions to which Holders of such Disputed Class 5 Claims
would be entitled if their Claim were allowed in the Disputed Claim Amount,
in each case subject to the right of the Reorganized Debtors to request
that the Bankruptcy Court approve, after notice and a hearing, a lesser
reserve. No interest shall be paid with respect to Disputed Claims that
are ultimately allowed in whole or in part.
D. DISTRIBUTIONS AFTER ALLOWANCE
The Reorganized Debtors shall make payments and distributions from
the Disputed Claims Reserve to the Holder of any Disputed Claim that has
become an Allowed Claim, as soon as practicable after the date such
Disputed Claim becomes an Allowed Claim. Such distributions shall be based
upon the cumulative distributions that would have been made to the Holders
of such Claims under the Plan if the Disputed Claim had been Allowed on the
Effective Date. After a Final Order has been entered, or other final
resolution has been reached, with respect to each Disputed Claim, any
Kaanapali Land Shares that remains in the Disputed Claims Reserve shall be
cancelled and any Cash shall be distributed Pro Rata to Holders of Allowed
Class 5 Claims. All distributions made under this Article VIII shall be
made as if such Allowed Claim had been Allowed on the Effective Date.
ARTICLE IX.
CONFIRMATION AND CONSUMMATION OF THE PLAN
A. CONDITIONS PRECEDENT TO CONSUMMATION
The following are conditions precedent to the occurrence of the
Effective Date, unless waived pursuant to the provisions of Article IX.B of
the Plan:
1. the Confirmation Order shall have been signed by the
Bankruptcy Court and duly entered on the docket for the Chapter 11 Cases by
the Clerk of the Bankruptcy Court;
2. the Confirmation Order shall be in form and substance
satisfactory to the Debtors, the Northbrook Senior Creditors and the
Indenture Trustee;
3. the Confirmation Order shall be a Final Order; and
4. all conditions precedent to the "Closing," as defined in
the Northbrook Merger Agreement, shall have been satisfied and the
Northbrook Merger shall have occurred.
B. WAIVER OF CONDITIONS
The conditions precedent to the "Closing," as defined in the
Northbrook Merger Agreement, may only be waived pursuant to the terms
thereof. The condition contained in Article IX.A.1 may not be waived. All
other conditions may be waived by FHTC and AHI (with the consent of the
Indenture Trustee, which consent shall not be unreasonably withheld or
delayed), without leave or order of the Bankruptcy Court, and without any
formal action other than proceeding to consummate the Plan. The failure of
a Debtor or Reorganized Debtor to exercise any of the foregoing rights
shall not be deemed a waiver of any other rights, and each right shall be
deemed an ongoing right that may be asserted at any time.
C. EFFECT OF VACATION OF CONFIRMATION ORDER
If the Confirmation Order is vacated, (a) the Plan shall be null and
void in all respects and nothing contained in the Plan or the Disclosure
Statement shall: (1) constitute a waiver, release or settlement of any
Claims by or against, or any Interests in, the Debtors; (2) prejudice in
any manner the rights of the Debtors; or (3) constitute an admission,
acknowledgment, offer or undertaking by the Debtors in any respect and (b)
the time within which the Debtors may assume and assign or reject all
executory contracts and unexpired leases shall be extended for a period of
60 days after the date the Confirmation Order is vacated, subject to such
further extension as the Bankruptcy Court may order.
ARTICLE X.
RELEASE, INJUNCTION AND RELATED PROVISIONS
A. SUBORDINATION
The classification and manner of satisfying all Claims and Interests
and the respective distributions and treatments under the Plan take into
account and/or 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) of the
Bankruptcy Code or otherwise, and any and all such rights are settled,
compromised and released pursuant to the Plan. The Confirmation Order
shall permanently enjoin, effective as of the Effective Date, all Persons
and Entities from enforcing or attempting to enforce any such contractual,
legal and equitable subordination rights satisfied, compromised and settled
pursuant to the Plan. Accordingly, distributions pursuant to the Plan to
Holders of Allowed Claims or Allowed Interests will not be subject to
payment to a beneficiary of such terminated subordination rights, or to
levy, garnishment, attachment or other legal process by a beneficiary of
such terminated subordination rights.
All Northbrook Senior Claims and all rights and claims between or
among the Holders of such Northbrook Senior Claims and the COLA Holders,
relating in any manner whatsoever to claimed subordination rights, "make
whole" rights, rights to postpetition or default interest or similar rights
(collectively, "SUBORDINATION-RELATED RIGHTS"), shall be deemed satisfied
solely with respect to claims against the Debtors by the distributions
under, described in, contemplated by, and/or implemented by this Plan to
Holders of such Claims, and such rights shall be deemed waived, released,
discharged and terminated as of the Effective Date, and all actions related
to the enforcement of such Subordination-Related Rights shall be
permanently enjoined. Distributions under, described in, contemplated by
and/or implemented by this Plan shall not be subject to levy, garnishment,
attachment or like legal process by any Holder of a Claim, by reason of any
claimed Subordination-Related Rights or otherwise, so that each Holder of a
Claim shall have and receive the benefit of the distributions in the manner
set forth and described in the Plan. Subordination-Related Rights with
respect to Non-Debtor Subsidiaries are hereby expressly preserved.
Pursuant to Bankruptcy Rule 9019 and in consideration of the
distributions and other benefits provided under the Plan, the provisions of
the Plan will constitute a good faith compromise and settlement of all
claims or controversies relating to the subordination rights that a Holder
of a Claim (including but not limited to a Northbrook Senior Claim or a
COLA Note Claim) may have or any distribution to be made pursuant to the
Plan on account of such Claim. Entry of the Confirmation Order will
constitute the Bankruptcy Court's approval, as of the Effective Date, of
the compromise or settlement of all such claims or controversies and the
Bankruptcy Court's finding that such compromise or settlement is in the
best interests of the Debtors, the Reorganized Debtors and their respective
properties and Holders of Claims and Interests, and is fair, equitable and
reasonable.
B. RELEASES
RELEASE BY DEBTORS. As of the Effective Date, for good and valuable
consideration, the adequacy of which is hereby confirmed, and except as
otherwise specifically provided in the Plan or the Confirmation Order, (i)
the Indenture Trustee, (ii) the Holders of the Northbrook Senior Claims,
Pacific Holdings and Affiliates of the foregoing that have provided
management services to any of the Debtors or assessed charges to pay for
overhead in connection with the operations of the Debtors, and (iii) the
respective officers, directors, shareholders, members, managers, employees,
agents and representatives of the foregoing, in such capacity, are released
by the Debtors, the Reorganized Debtors and their respective Estates from
any and all Claims, obligations, rights, suits, damages, Causes of Action,
Avoidance Actions, remedies and liabilities whatsoever, whether known or
unknown, foreseen or unforeseen, existing or hereafter arising, in law,
equity or otherwise, that the Debtors would have been legally entitled to
assert in their own right (whether individually or collectively) or on
behalf of the Holder of any Claim or Interest or other Person or Entity,
based in whole or in part upon any act or omission, transaction, agreement,
event or other occurrence taking place on or before the Effective Date;
provided, however, that the foregoing provisions of this Article X shall
have no effect on the liability of any Person or Entity with respect to
liabilities created by the Plan or the Plan Documents. THE CONFIRMATION
ORDER WILL PERMANENTLY ENJOIN THE COMMENCEMENT OR PROSECUTION BY ANY
ENTITY, WHETHER DIRECTLY, DERIVATIVELY OR OTHERWISE, OF ANY CLAIMS,
OBLIGATIONS, SUITS, JUDGMENTS, DAMAGES, DEMANDS, DEBTS, RIGHTS, CAUSES OF
ACTION OR LIABILITIES RELEASED PURSUANT TO THE PLAN, INCLUDING BUT NOT
LIMITED TO THE CLAIMS, OBLIGATIONS, SUITS, JUDGMENTS, DAMAGES, DEMANDS,
DEBTS, RIGHTS, CAUSES OF ACTION OR LIABILITIES RELEASED IN THIS ARTICLE
X.B. OF THIS PLAN.
RELEASE BY COLA HOLDERS. As of the Effective Date, and except as
otherwise specifically provided in the Plan or the Confirmation Order, each
COLA Holder (i) that votes in favor of the Plan and (ii) to the fullest
extent permissible under applicable law, as such law may be extended or
interpreted subsequent to the Effective Date, that does not vote on the
Plan or votes against the Plan will be deemed to forever release, waive and
discharge all claims, demands, rights, causes of action and liabilities,
whether liquidated or unliquidated, fixed or contingent, matured or
unmatured, known or unknown, foreseen or unforeseen, then existing or
thereafter arising in law, equity or otherwise, that are based in whole or
in part on any act, omission, transaction or other occurrence taking place
on or prior to the Effective Date in any way relating to the Debtor, the
Plan or the COLA Note Claims that such COLA Holder has or may have against
the Indenture Trustee and its respective present or former directors,
officers, employees, attorneys, accountants, financial advisors and agents,
acting in such capacity.
C. PRESERVATION OF RIGHTS OF ACTION
Except as otherwise provided in the Plan or in any contract,
instrument, release, indenture or other agreement entered into in
connection with the Plan, in accordance with section 1123(b) of the
Bankruptcy Code, the Reorganized Debtors shall retain and may exclusively
enforce any Avoidance Actions or other Causes of Action or rights to
payment of claims, that the Debtors or the Estates may hold against any
Person or Entity; provided, however, as between Reorganized Debtors, such
Avoidance Actions and Causes of Action are deemed released. The
Reorganized Debtors may pursue such retained Avoidance Actions, other
Causes of Action and rights to payment of claims, as appropriate, in the
exercise of their sole discretion. The Reorganized Debtors shall retain
and may enforce all defenses, counterclaims and rights against all Claims
and Interests asserted against the Debtors, the Reorganized Debtors or
their Estates.
D. EXCULPATION
The Debtors, the Reorganized Debtors, the Disbursing Agent, the
Committee, the Indenture Trustee, the Northbrook Senior Creditors, the
Class A Representative and their respective members, officers, directors,
employees, agents and Professionals (acting in such capacity) shall neither
have nor incur any liability to any Person or Entity for any act taken or
omitted to be taken in connection with or related to the formulation,
preparation, dissemination, implementation, administration, Confirmation or
Consummation of the Plan, the Disclosure Statement or any contract,
instrument, release or other agreement or document created or entered into
in connection with the Plan, including the Merger Agreements, or any other
act taken or omitted to be taken in connection with the Chapter 11 Cases;
provided, however, that the foregoing provisions of this Article X.D shall
have no effect on the liability of (i) any Person or Entity to the extent
such liability is created by the Plan or the Plan Documents or (ii) any
Person or Entity that results from any such act or omission that
constitutes fraud, gross negligence or willful misconduct.
E. INJUNCTION
Except as otherwise provided in the Plan, the Confirmation Order
shall provide, among other things, that from and after the Confirmation
Date all Persons who have held, hold or may hold Claims against or
Interests in the Debtors are (i) permanently enjoined from taking any of
the following actions against the Estate(s), or any of their property, on
account of any such Claims or Interests and (ii) permanently enjoined from
taking any of the following actions against any of the Debtors, the
Reorganized Debtors or their property on account of such Claims or
Interests: (1) commencing or continuing, in any manner or in any place,
any action or other proceeding; (2) enforcing, attaching, collecting or
recovering in any manner any judgment, award, decree or order; (3)
creating, perfecting or enforcing any lien or encumbrance; (4) asserting a
setoff, right of subrogation or recoupment of any kind against any debt,
liability or obligation due to the Debtors; and (5) commencing or
continuing, in any manner or in any place, any action that does not comply
with or is inconsistent with the provisions of the Plan; provided, however,
that nothing contained herein shall preclude such persons from exercising
their rights pursuant to and consistent with the terms of this Plan, the
Merger Agreements and any documents executed in connection with the Plan or
the Merger Agreements.
F. RESERVATION OF CLAIMS AGAINST NON-DEBTOR SUBSIDIARIES AND
ASSIGNMENT OF RIGHTS
Nothing in the Plan shall affect the Claims of any Entity against the
Non-Debtor Subsidiaries including, without limitation, the Holders of the
Northbrook Senior Claims, the claims of the Indenture Trustee or the COLA
Note Claims; provided, however, upon the Effective Date, the rights of the
Holders of the Northbrook Senior Claims and the Indenture Trustee or the
COLA Holders against the Non-Debtor Subsidiaries shall be deemed, as of the
Effective Date, to have been assigned to Kaanapali Land, and Kaanapali Land
shall thereupon have full power and authority to enforce such Claims
against the Non-Debtor Subsidiaries as Kaanapali Land shall deem
appropriate in its sole discretion. Any recoveries against the Non-Debtor
Subsidiaries on account of such assigned Claims shall be retained by
Kaanapali Land. The Indenture Trustee shall have no duties or obligations
under the Indenture with respect to the rights so assigned to Kaanapali
Land.
ARTICLE XI.
RETENTION OF JURISDICTION
Notwithstanding the entry of the Confirmation Order and the
occurrence of the Effective Date, the Bankruptcy Court shall retain such
jurisdiction over the Chapter 11 Cases after the Effective Date to the
fullest extent permitted by law, including jurisdiction to:
A. Allow, disallow, determine, liquidate, classify, estimate or
establish the priority or secured or unsecured status of any Claim or
Interest, including the resolution of any request for payment of any
Administrative Expense Claim and the resolution of any and all objections
to the allowance or priority of Claims or Interests;
B. Grant or deny any applications for allowance of compensation or
reimbursement of expenses authorized pursuant to the Bankruptcy Code or the
Plan, for periods ending on or before the Effective Date;
C. Resolve any matters related to the assumption, assumption and
assignment, or rejection of any executory contract or unexpired lease to
which the Debtors are a party or with respect to which the Debtors or
Reorganized Debtors may be liable and to hear, determine and, if necessary,
liquidate, any Claims arising therefrom;
D. Ensure that distributions to Holders of Allowed Claims and
Allowed Interests are accomplished pursuant to the provisions of the Plan,
including ruling on any motion Filed pursuant to Articles VII or VIII;
E. Decide or resolve any motions, adversary proceedings, contested
or litigated matters and any other matters and grant or deny any
applications involving the Debtors that may be pending on the Effective
Date;
F. Enter such orders as may be necessary or appropriate to
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 or the Disclosure Statement or the
Confirmation Order;
G. Resolve any cases, controversies, suits or disputes that may
arise in connection with the Consummation, interpretation or enforcement of
the Plan and all contracts, instruments, releases or other agreements or
documents that are executed or created pursuant to the Plan, including
without limitation, the Merger Agreements, or any Person's or Entity's
obligations incurred in connection with the Plan or such documents;
H. Permit the Debtors or the Reorganized Debtors to modify the
Plan before or after the Effective Date pursuant to section 1127 of the
Bankruptcy Code, the Confirmation Order or any contract, instrument,
release or other agreement or document created in connection with the Plan,
the Disclosure Statement, or the Confirmation Order; or remedy any defect
or omission or reconcile any inconsistency in any Bankruptcy Court order,
the Plan, the Disclosure Statement or the Confirmation Order or any
contract, instrument, release, indenture or other agreement or document
created in connection with the Plan, the Disclosure Statement or the
Confirmation Order, in such manner as may be necessary or appropriate to
consummate the Plan, to the extent authorized by the Bankruptcy Code;
I. Issue injunctions, enter and implement other orders or take
such other actions as may be necessary or appropriate to restrain
interference by any Person or Entity with Consummation, implementation or
enforcement of the Plan or the Confirmation Order, except as otherwise
provided herein;
J. Resolve any cases, controversies, suits or disputes with
respect to the releases, injunction and other provisions contained in
Article X and enter such orders as may be necessary or appropriate to
implement such releases, injunction and other provisions;
K. Enter and implement such orders as are necessary or appropriate
if the Confirmation Order is for any reason modified, stayed, reversed,
revoked or vacated or distributions pursuant to the Plan are enjoined or
stayed;
L. 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, the Disclosure Statement or the
Confirmation Order; and
M. Enter an order and/or final decree concluding the Chapter 11
Cases.
ARTICLE XII.
MISCELLANEOUS PROVISIONS
A. DISSOLUTION OF COMMITTEE
On the Effective Date, the Committee, if any, shall dissolve and
shall have no further duties and its members shall be released and
discharged from all rights and duties arising from, or related to, the
Chapter 11 Cases.
B. PAYMENT OF STATUTORY FEES
All fees payable pursuant to section 1930 of title 28 of the United
States Code shall be paid by the Debtors or the Reorganized Debtors as and
when they become due.
C. DISCHARGE OF DEBTORS
Except as otherwise provided herein or in the Confirmation Order, (1)
the rights afforded in the Plan, and the treatment of all Claims and
Interests therein, shall be in exchange for and in complete satisfaction,
discharge and release of Claims and Interests of any nature whatsoever, (2)
on the Effective Date, all such Claims against, and Interests in, the
Debtors and the Reorganized Debtors shall be satisfied, discharged, and
released in full, and (3) all Persons and Entities shall be precluded from
asserting against the Debtors or the Reorganized Debtors, their successors
or their assets or properties any other or further Claims or Interests
based upon any act or omission, transaction or other activity of any kind
or nature that occurred prior to the Effective Date.
D. MODIFICATION OF PLAN
Subject to the limitations contained herein and the Merger
Agreements, (1) the Debtors reserve the right, in accordance with the
Bankruptcy Code and the Bankruptcy Rules, to amend or modify the Plan prior
to the entry of the Confirmation Order and (2) after the entry of the
Confirmation Order, the Debtors or the Reorganized Debtors, as the case may
be, may upon order of the Bankruptcy Court amend or modify the Plan in
accordance with section 1127(b) of the Bankruptcy Code, or remedy any
defect or omission or reconcile any inconsistency in the Plan in such
manner as may be necessary to carry out the purpose and intent of the Plan.
E. REVOCATION OF PLAN
The Debtors reserve the right to revoke and withdraw the Plan as to
any or all of the Debtors at any time prior to the entry of the
Confirmation Order and to file subsequent plans of reorganization. If the
Debtors revoke or withdraw the Plan as to any or all of the Debtors, or if
confirmation or Consummation of the Plan as to any or all of the Debtors
does not occur, then, with respect to such Debtors, (a) the Plan shall be
null and void in all respects, (b) any settlement or compromise embodied in
the Plan (including the fixing or limiting to an amount certain any Claim
or Interest or Class of Claims or Interests), assumption or rejection of
executory contracts or leases affected by the Plan, and any document or
agreement executed pursuant to the Plan, shall be deemed null and void, and
(c) nothing contained in the Plan shall (i) constitute a waiver or release
of any Claims by or against, or any Interests in, such Debtors or any other
Person, (ii) prejudice in any manner the rights of such Debtors or any
other Person, or (iii) constitute an admission of any sort by the Debtors
or any other Person.
F. SUCCESSORS AND ASSIGNS
The Plan shall be binding upon and inure to the benefit of the
Debtors and their respective successors and assigns including, without
limitation, the Reorganized Debtors. The rights, benefits and obligations
of any Person or 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 of such Person or Entity.
G. RESERVATION OF RIGHTS
Except as expressly set forth herein, this Plan shall have no force
or effect unless the Bankruptcy Court shall enter the Confirmation Order
and the Plan shall have become effective in accordance with its terms.
None of the filing of this Plan, any statement or provision contained in
this Plan or the Disclosure Statement or the taking of any action by the
Debtors with respect to this Plan shall be or shall be deemed to be an
admission or waiver of any rights of the Debtors with respect to the
Holders of Claims or Interests prior to the Effective Date.
H. SECTION 1146 EXEMPTION
Pursuant to section 1146(c) of the Bankruptcy Code, the issuance,
transfer or exchange of any notes or equity security under the Plan, or the
making or delivery of a deed or other instrument of transfer under, in
furtherance of, or in connection with this Plan, including, without
limitation, any merger agreements; agreements of consolidation,
restructuring, disposition, liquidation or dissolution; deeds, bills of
sale; and transfers of tangible property, will not be subject to any stamp
tax, recording tax, conveyance fee, personal property or intangible tax,
real estate transfer tax, sales or use tax or other similar tax or
governmental assessment, and the appropriate governmental entities are
directed to accept for filing and recordation any of the foregoing
instruments or documents without the payment of any such tax or
governmental assessment. Unless the Bankruptcy Court orders otherwise, all
sales, transfers and assignments of owned and leased property approved by
the Bankruptcy Court on or prior to the Effective Date, and in
contemplation of the Plan, shall be deemed to have been in furtherance of,
or in connection with, the Plan.
I. FURTHER ASSURANCES
The Debtors, the Reorganized Debtors, and all Holders of Claims or
Interests receiving distributions under the Plan 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 this Plan. Each of
the Debtors or the Reorganized Debtors is authorized 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, implement and further evidence the terms and conditions of the
Plan and any securities issued pursuant to the Plan.
J. CORPORATE ACTION
Prior to, on or after the Effective Date (as appropriate), all
matters provided for under the Plan that would otherwise require approval
of the stockholders, members or directors of one or more of the Debtors or
the Reorganized Debtors shall be deemed to have occurred and shall be in
effect prior to, on or after the Effective Date (as appropriate) pursuant
to the applicable general corporation law of the states in which the
Debtors or the Reorganized Debtors are incorporated without any requirement
of further action by the stockholders or directors of the Debtors or the
Reorganized Debtors.
K. BAR DATES FOR ADMINISTRATIVE CLAIMS
At the request of the Debtors, the Confirmation Order will establish
a bar date for filing Administrative Expense Claims. Holders of asserted
Administrative Expense Claims that are subject to the such bar date shall
submit requests for payment on or before such bar date or forever be barred
from doing so.
L. INTERPRETATION OF PLAN PROVISIONS
If, prior to the Confirmation Date, any term or provision of the Plan
is determined by the Bankruptcy Court to be invalid, void or unenforceable,
the Bankruptcy Court, at the request of the Debtors, will have the power to
alter and interpret such term or provision to make it valid or enforceable
to the maximum extent practicable, consistent with the original purpose of
the term or provision held to be invalid, void or unenforceable, and such
term or provision will then be applicable as altered or interpreted. The
Confirmation Order will constitute a judicial determination and will
provide that each term and provision of the Plan, as it may have been
altered or interpreted in accordance with the foregoing, is valid and
enforceable pursuant to its terms.
M. SERVICE OF DOCUMENTS
Any pleading, notice or other document required by the Plan to be
served on or delivered to the Debtors or the Reorganized Debtors to be
effective shall be in writing and unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when actually
delivered or, in the case of notice by facsimile transmission, when
received and telephonically confirmed, addressed as follows:
Amfac Hawaii, LLC
900 North Michigan Avenue
Suite 1900
Chicago, Illinois 60611
Attn: Gary Nickele
with copies to:
Jones Day Reavis & Pogue
77 W. Wacker Dr.
Chicago, IL 60601
Attn: Brad B. Erens
FHT Corporation
900 North Michigan Avenue
Suite 1900
Chicago, IL 60601
Attn: Paul C. Nielsen
with copies to:
Jones Day Reavis & Pogue
77 W. Wacker Dr.
Chicago, IL 60601
Attn: Brad B. Erens
and
Kaanapali Land, LLC
with copies to:
Mayer, Brown, Rowe & Maw
190 S. LaSalle Street
Chicago, IL 60603
Attn: David S. Curry
and
Jones Day Reavis & Pogue
77 W. Wacker Dr.
Chicago, IL 60601
Attn: Brad B. Erens
N. SECTION 1145 EXEMPTION
The offer, issuance, transfer or exchange of any security under the
Plan, including the Kaanapali Land Shares, or the making or delivery of an
offering memorandum or other instrument of offer or transfer under this
Plan, shall be exempt from Section 5 of the Securities Act or any similar
state or local law requiring the registration for offer or sale of a
security or registration or licensing of an issuer or a security as and to
the maximum extent provided in section 1145(a) of the Bankruptcy Code.
O. PLAN DOCUMENTS
The Plan Documents shall be filed with the Bankruptcy Court and
delivered to counsel for the Northbrook Senior Creditors, counsel for the
Committee, if any, and counsel for the Indenture Trustee not later than 15
days prior to the date of the hearing on Confirmation of the Plan. Upon
their filing, the Plan Documents may be inspected in the office of the
Clerk of the Bankruptcy Court or its designee during normal business hours.
Holders of Claims and Interests may obtain a copy of the Plan Documents
upon written request to AHI, 900 North Michigan Avenue, Suite 1900,
Chicago, Illinois 60611, attention AHI Plan Document Requests. The Plan
Documents shall be approved by the Bankruptcy Court pursuant to the
Confirmation Order.
Dated: May 10, 2002
AMFAC HAWAII, LLC, on behalf of itself
and the other AHI Debtors
Debtors and Debtors In Possession
By:
Name:
Title:
FHT CORPORATION
Debtor and Debtor In Possession
By:
Name:
Title: