Exhibit 99.3
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
- -----------------------------------------------X
:
In re: Chapter 11
:
JACOM COMPUTER SERVICES, INC., Lead Case No.
UNICAPITAL CORPORATION, ET AL., : 00-42719 (CB)
Debtors. : Case Nos. 00-42719 (CB)
through 00-42837 (CB) and
: No. 01-11617 (CB)
: (Jointly Administered)
- -----------------------------------------------X
FIRST AMENDED PLAN OF REORGANIZATION OF
UNICAPITAL CORPORATION AND DEBTOR
SUBSIDIARIES UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
DATED: NEW YORK, NEW YORK
NOVEMBER 16, 2001
GREENBERG TRAURIG, LLP
COUNSEL FOR JACOM COMPUTER
SERVICES, INC., UNICAPITAL
CORPORATION, ET AL.
-- --
DEBTORS IN POSSESSION
ATTN: RICHARD S. MILLER, ESQ.
HOWARD J. BERMAN, ESQ.
ROBERT HONEYWELL, ESQ.
200 PARK AVENUE
NEW YORK, NY 10166
(212) 801-9200
TABLE OF CONTENTS
PAGE
INTRODUCTION ..........................................................1
ARTICLE I. DEFINITIONS, RULES OF INTERPRETATION, AND CONSTRUCTION......2
A. Defined Terms....................................................2
B. Definitions......................................................2
Section 1.01 Additional Funding Requirement......................2
Section 1.02 Administrative Claim................................2
Section 1.03 Administrative Claims Reserve.......................2
Section 1.04 Administrative Expense Budget.......................3
Section 1.05 Agent...............................................3
Section 1.06 Allowed.............................................3
Section 1.07 Allowed Administrative Claim........................3
Section 1.08 Allowed Claim.......................................3
Section 1.09 Allowed Priority Claim..............................3
Section 1.10 Allowed Revolving Lender Claims.....................3
Section 1.11 Allowed Secured Claim...............................3
Section 1.12 Asset LLC...........................................3
Section 1.13 Assets..............................................4
Section 1.14 Available Cash......................................4
Section 1.15 Ballot..............................................4
Section 1.16 Bank Investor.......................................4
Section 1.17 Bank of America.....................................4
Section 1.18 Bankruptcy Code.....................................4
Section 1.19 Bankruptcy Court....................................4
Section 1.20 Bankruptcy Rules....................................4
Section 1.21 Bar Date............................................4
Section 1.22 Bar Date Order......................................4
Section 1.23 Business Day........................................4
Section 1.24 Budget..............................................5
Section 1.25 Cash................................................5
Section 1.26 Cash Collateral Orders..............................5
Section 1.27 Causes of Action....................................5
Section 1.28 Chapter 11 Cases....................................5
Section 1.29 Claim...............................................5
Section 1.30 Claim Objection Costs...............................5
Section 1.31 Claims Agent........................................5
Section 1.32 Class...............................................5
Section 1.33 Class [___] Claim...................................5
Section 1.34 Class 5 Cash........................................5
Section 1.35 Class 5 Claimant Amount.............................6
Section 1.36 Class 5 Distribution Amount.........................6
Section 1.37 Class 5 Escrow Account..............................6
Section 1.38 Class 5 Litigation Costs............................6
Section 1.39 Collateral..........................................6
Section 1.40 Collateral Value....................................6
Section 1.41 Committee...........................................6
Section 1.42 Committee Preserved Issue...........................6
Section 1.43 Compromise and Settlement...........................6
Section 1.44 Confirmation Date...................................6
Section 1.45 Confirmation Hearing................................6
Section 1.46 Confirmation Order..................................6
Section 1.47 Consummation Date...................................7
Section 1.48 Corporate Exhibit Appendix..........................7
Section 1.49 Credit Agreement....................................7
Section 1.50 D&O Claims..........................................7
Section 1.51 D&O Insurance.......................................7
Section 1.52 D&O Indemnities.....................................7
Section 1.53 Debtors.............................................7
Section 1.54 DIP Loans...........................................7
Section 1.55 Disallowed..........................................7
Section 1.56 Disbursing Agent....................................7
Section 1.57 Disclosure Statement................................8
Section 1.58 Disclosure Statement Order..........................8
Section 1.59 Disputed Claim......................................8
Section 1.60 Disputed Claims Reserve.............................8
Section 1.61 Disputed Non-Tax Reserve............................8
Section 1.62 Disputed Tax Reserve................................8
Section 1.63 Distribution........................................8
Section 1.64 Distribution Address................................8
Section 1.65 Distribution Date...................................9
Section 1.66 Effective Date......................................9
Section 1.67 Equipment Leases....................................9
Section 1.68 Equipment Lessee....................................9
Section 1.69 Equity Interest.....................................9
Section 1.70 Estates.............................................9
Section 1.71 Excess Cash Collateral Sweeps.......................9
Section 1.72 Excess Portland Proceeds............................9
Section 1.73 Excluded Amounts....................................9
Section 1.74 Exhibit............................................10
Section 1.75 Exhibit Appendices.................................10
Section 1.76 Exhibit Filing Date................................10
Section 1.77 Face Amount........................................10
Section 1.78 File or Filed......................................10
Section 1.79 Final Cash Collateral Orders.......................10
ii
Section 1.80 Final Claims Resolution Date.......................11
Section 1.81 Final Order........................................11
Section 1.82 G&T................................................11
Section 1.83 General Unsecured Claim............................11
Section 1.84 Initial Distributions..............................11
Section 1.85 Initial Distribution Date..........................11
Section 1.86 Intercompany Claim.................................11
Section 1.87 Interim Cash Collateral Order......................11
Section 1.88 Interest...........................................11
Section 1.89 Lease Collection Actions...........................12
Section 1.90 Lehman.............................................12
Section 1.91 Lehman Collateral..................................12
Section 1.92 Lehman Credit Agreement............................12
Section 1.93 Lehman Secured Claim...............................12
Section 1.94 Lenders............................................12
Section 1.95 Lessee Tax Payments................................12
Section 1.96 Lien...............................................12
Section 1.97 Lien Release Condition.............................12
Section 1.98 Litigation LLC.....................................13
Section 1.99 Managers...........................................13
Section 1.100 Membership Interests .............................13
Section 1.101 Minimum Funding Requirement ......................13
Section 1.102 Net Proceeds .....................................13
Section 1.103 Net Proceeds Sharing Payment .....................13
Section 1.104 Newco ............................................13
Section 1.105 Newco Assumed Debt ...............................13
Section 1.106 Old UniCapital Common Stock ......................14
Section 1.107 Operating Agreements .............................14
Section 1.108 Ordinary Course Professionals Order ..............14
Section 1.109 Other Secured Claims .............................14
Section 1.110 P&C Agreement ....................................14
Section 1.111 PFSC .............................................14
Section 1.112 Paying Agent .....................................14
Section 1.113 Penalty Claim ....................................14
Section 1.114 Permitted Avoidance Action Costs .................14
Section 1.115 Permitted Avoidance Actions ......................14
Section 1.116 Person ...........................................15
Section 1.117 Petition Date ....................................15
Section 1.118 Plan .............................................15
Section 1.119 Portland .........................................15
Section 1.120 Portland Assets ..................................15
Section 1.121 Portland Reserve Sharing Payment .................15
Section 1.122 Portland Sale Proceeds ...........................15
Section 1.123 Portland Transaction .............................15
Section 1.124 Pre-Petition Claim ...............................15
Section 1.125 Pre-Petition Lender Indebtedness .................15
Section 1.126 Priority Claims ..................................16
iii
Section 1.127 Priority Claims Reserve ..........................16
Section 1.128 Priority Non-Tax Claim ...........................16
Section 1.129 Priority Reserve Repayment Amount ................16
Section 1.130 Priority Tax Claim ...............................16
Section 1.131 Professionals ....................................16
Section 1.132 Professional Fees ................................16
Section 1.133 Ratable or Ratable Share .........................16
Section 1.134 Reinstated .......................................16
Section 1.135 Released Portland Proceeds .......................16
Section 1.136 Reorganized Debtors ..............................16
Section 1.137 Requisite Lenders ................................16
Section 1.138 Revolving Lender Claims ..........................17
Section 1.139 Revolving Lender Distribution ....................17
Section 1.140 Schedules ........................................18
Section 1.141 Secured Claim ....................................18
Section 1.142 Securitization 1999 Subsidiaries .................18
Section 1.143 Securitization 2000 Subsidiaries .................18
Section 1.144 Securitization Collateral ........................18
Section 1.145 Securitization Subsidiaries ......................18
Section 1.146 Securitizations ..................................18
Section 1.147 Security .........................................18
Section 1.148 Seller Tax Indemnity .............................18
Section 1.149 Servicing Agreements .............................18
Section 1.150 State Governmental Authority .....................19
Section 1.151 Subordinated Claim ...............................19
Section 1.152 Subsequent Funding Requirement ...................19
Section 1.153 Subsidiary .......................................19
Section 1.154 Supplemental Appendix ............................19
Section 1.155 Supplemental Net Proceeds Payment ................19
Section 1.156 TAA ..............................................19
Section 1.157 TAA Collateral ...................................19
Section 1.158 TAA Parties ......................................19
Section 1.159 TAA Subsidiaries .................................20
Section 1.160 TAA Purchase Agreement ...........................20
Section 1.161 Tax Indemnity ....................................20
Section 1.162 Termination Date .................................20
Section 1.163 Treasury Regulation ..............................20
Section 1.164 TS&S .............................................20
Section 1.165 Unclaimed Property ...............................20
Section 1.166 UniCapital .......................................20
Section 1.167 UniCapital Equity Interests ......................20
Section 1.168 US Treasury Rate .................................20
Section 1.169 US Trustee Fees ..................................20
C. Rules of Construction ..........................................21
Section 1.170 Generally ........................................21
Section 1.171 Exhibits .........................................21
iv
Section 1.172 Time Periods .....................................21
Section 1.173 Miscellaneous Rules ..............................21
ARTICLE II. COMPROMISE AND SETTLEMENT; GENERAL RULES REGARDING
CLASSIFICATION OF CLAIMS AND INTERESTS.................21
Section 2.01 Compromise and Settlement..........................21
Section 2.02 General Rules of Classification
Under the Bankruptcy Code..........................22
Section 2.03 Undersecured Claims................................23
Section 2.04 Penalty Claims.....................................23
ARTICLE III. CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS............23
Section 3.01 Summary............................................23
ARTICLE IV. TREATMENT OF UNCLASSIFIED CLAIMS..........................24
Section 4.01 Administrative Claims..............................24
Section 4.02 Priority Tax Claims................................24
Section 4.03 U.S. Trustee Fees..................................26
ARTICLE V. TREATMENT OF CLASSIFIED CLAIMS AND INTERESTS...............26
Section 5.01 Class 1: Allowed Revolving Lender Claims...........26
Section 5.02 Class 2: Lehman Secured Claims....................27
Section 5.03 Class 3: Other Secured Claims.....................28
Section 5.04 Class 4: Priority Non-Tax Claims..................29
Section 5.05 Class 5: General Unsecured Claims.................30
Section 5.06 Class 6: Subordinated Claims......................32
Section 5.07 Class 7: Penalty Claims............................33
Section 5.08 Class 8: UniCapital Equity Interests..............33
ARTICLE VI. IMPLEMENTATION OF PLAN....................................33
Section 6.01 Corporate Transactions.............................33
Section 6.02 Corporate Governance...............................35
ARTICLE VII. DISPUTED CLAIMS RESERVES, OTHER RESERVES AND PROVISIONS
GOVERNING DISTRIBUTIONS................................37
Section 7.01 Disputed Claims Reserves and Other Reserves........37
Section 7.02 Distributions To Holders Of Claims And Interests...40
Section 7.03 Miscellaneous Distribution Provisions..............42
Section 7.04 De Minimis Distributions...........................42
Section 7.05 Setoffs and Counterclaims..........................43
Section 7.06 Unclaimed Property.................................43
Section 7.07 Exemption from Transfer Taxes......................44
Section 7.08 Disputed Payments..................................44
Section 7.09 Withholding Taxes..................................44
Section 7.10 Obligations Incurred After the Confirmation Date...44
Section 7.11 Obligations with Respect to Distributions..........44
v
Section 7.12 Payment of Lessee Tax Payments to State
Governmental Authorities...........................45
Section 7.13 Turnover of Excluded Amounts.......................45
Section 7.14 Delegation by Disbursing Agent.....................46
ARTICLE VIII. POOLING OF THE DEBTORS AND THE SUBSIDIARIES
SOLELY FOR PURPOSES OF VOTING AND DISTRIBUTIONS.........46
Section 8.01 Pooling of Assets and Liabilities..................46
ARTICLE IX. EFFECT OF THE PLAN ON CLAIMS AND INTERESTS................47
Section 9.01 Jurisdiction of Court..............................47
Section 9.02 Binding Effect.....................................47
Section 9.03 Term of Injunctions or Stays.......................47
Section 9.04 Rights of Action...................................48
Section 9.05 Revesting of Assets................................49
Section 9.06 Discharge..........................................49
Section 9.07 Exculpation and Limitation of Liability............51
Section 9.08 Release by Debtors.................................51
Section 9.09 Release by Holders of Claims or Interests..........52
Section 9.10 Injunction Related to Releases.....................52
Section 9.11 Section 1145 Exemption.............................52
Section 9.12 Preservation of Insurance..........................53
ARTICLE X. EXECUTORY CONTRACTS........................................53
Section 10.01 Executory Contracts and Unexpired Leases..........53
Section 10.02 Cure..............................................53
Section 10.03 Rejection Damages Bar Date........................54
Section 10.04 Executory Contracts and Unexpired Leases Entered
Into and Other Obligations Incurred After the
Petition Date ....................................54
ARTICLE XI. CONDITIONS TO CONFIRMATION AND OCCURRENCE OF
EFFECTIVE DATE ...........................................54
Section 11.01 Conditions to Confirmation........................54
Section 11.02 Conditions to Occurrence of Effective Date........55
Section 11.03 Waiver of Conditions to Confirmation and
Occurrence of Effective Date .....................56
ARTICLE XII. CONFIRMABILITY AND SEVERABILITY OF THE PLAN
AND CRAMDOWN ............................................56
Section 12.01 Confirmability and Severability of a Plan.........56
Section 12.02 Cramdown..........................................56
ARTICLE XIII. ADMINISTRATIVE PROVISIONS...............................56
Section 13.01 Retention of Jurisdiction ........................56
Section 13.02 Governing Law ....................................56
Section 13.03 Administrative Bar Date ..........................57
vi
Section 13.04 Preservation of Avoided Transfers ................58
Section 13.05 Ability to Enforce Certain Provisions
of Chapter 7 .....................................58
Section 13.06 Payment of Statutory Fees ........................59
Section 13.07 Corporate Action .................................59
Section 13.08 Effectuating Documents and Further Transactions ..60
Section 13.09 Amendments .......................................60
Section 13.10 Successors and Assigns ...........................60
Section 13.11 Confirmation Order and Plan Control ..............60
Section 13.12 Headings .........................................60
Section 13.13 Reports by Asset LLC .............................60
Section 13.14 Notices ..........................................60
vii
UNITED STATES BANKRUPTCY court
SOUTHERN DISTRICT of new york
- -----------------------------------------------X
:
In re: Chapter 11
:
JACOM COMPUTER SERVICES, INC., Lead Case No.
UNICAPITAL CORPORATION, ET AL., : 00-42719 (CB)
Debtors. : Case Nos. 00-42719 (CB)
through 00-42837 (CB) and
: No. 01-11617 (CB)
: (Jointly Administered)
- -----------------------------------------------X
FIRST AMENDED PLAN OF REORGANIZATION OF
UNICAPITAL CORPORATION AND DEBTOR
SUBSIDIARIES UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
INTRODUCTION
UniCapital Corporation and the other above-captioned debtors and
debtors-in-possession, as set forth on Annex A, hereby propose the following
plan of reorganization pursuant to section 1121(a) of title 11 of the United
States Code. Reference is made to the Disclosure Statement for a discussion of
the Debtors' history, businesses, properties, results of operations, projections
for future recoveries, a summary and analysis of the Plan and other related
matters. The Debtors are the proponents of the Plan within the meaning of
section 1129 of the Bankruptcy Code.
These reorganization cases have been consolidated for procedural
purposes and are being jointly administered pursuant to an order of the United
States Bankruptcy Court for the Southern District of New York. The Plan
contemplates the pooling of the assets and liabilities of the Debtors solely for
purposes of voting and distribution.
Under section 1125(b) of the Bankruptcy Code, a vote to accept or
reject the Plan cannot be solicited from a holder of a claim or interest until
such time as the Disclosure Statement has been approved by the Bankruptcy Court
and distributed to holders of claims and interests. ALL HOLDERS OF ALLOWED
CLAIMS AGAINST THE DEBTORS THAT ARE ENTITLED TO VOTE (CLASSES 1, 2, 3 AND 5) ARE
ENCOURAGED TO READ THE PLAN AND THE RELATED DISCLOSURE STATEMENT IN THEIR
ENTIRETY BEFORE VOTING TO ACCEPT OR TO
REJECT THE PLAN. CLASS 4 IS DEEMED TO HAVE ACCEPTED THE PLAN AND IS NOT ENTITLED
TO VOTE. CLASSES 6, 7 AND 8 ARE DEEMED TO HAVE REJECTED THE PLAN AND ARE NOT
ENTITLED TO VOTE. SUBJECT TO CERTAIN RESTRICTIONS AND REQUIREMENTS SET FORTH IN
THE PLAN AND THE BANKRUPTCY CODE, THE DEBTORS RESERVE THE RIGHT TO ALTER, AMEND,
MODIFY, REVOKE OR WITHDRAW THE PLAN PRIOR TO ITS SUBSTANTIAL CONSUMMATION.
ARTICLE I.
DEFINITIONS, RULES OF INTERPRETATION, AND CONSTRUCTION
A. DEFINED TERMS As used herein, the following terms have the
respective meanings specified below, unless the context otherwise requires. Any
term used in the Plan but not defined herein that is used in the Bankruptcy Code
or Bankruptcy Rules shall have the meaning assigned to that term in the
Bankruptcy Code or Bankruptcy Rules.
B. DEFINITIONS
Section 1.01 ADDITIONAL FUNDING REQUIREMENT means an amount no
greater than $5,000,000, in the aggregate, and equal to the sum of (i) the
Excess Portland Proceeds, (ii) the Portland Reserve Sharing Payment, and (iii)
the gross proceeds realized from any judgment or settlement reached in
connection with the Permitted Avoidance Actions.
Section 1.02 ADMINISTRATIVE CLAIM means any Claim under sections
503(b) and 507(a)(1) of the Bankruptcy Code, including, without limitation: (a)
the actual, necessary costs and expenses incurred by the Debtors after the
Petition Date, and (b) compensation for legal and other services and
reimbursement of expenses awarded pursuant to sections 330(a), 331 or 1103 of
the Bankruptcy Code.
Section 1.03 ADMINISTRATIVE CLAIMS RESERVE means an amount equal to
the sum of the following, all of which shall be funded on the Effective Date as
provided in Section 7.01 of the Plan: (i) all Allowed Administrative Claims
which have not been paid as of the Effective Date, other than those to be paid
in the ordinary course pursuant to Section 4.01 of the Plan, (ii) the Disputed
Claims Reserve for Administrative Claims which are Disputed Claims as of the
Effective Date, (iii) a reserve for unpaid Professional Fees as provided in
Section 13.03 of the Plan, and (iv) a reserve for any U. S. Trustee Fees for the
period prior to the Effective Date which have not been paid as of the Effective
Date.
Section 1.04 ADMINISTRATIVE EXPENSE BUDGET means the monthly cash
budget acceptable to the Agent in its sole discretion, which shall identify the
permitted expenses of UniCapital necessary to perform the duties enumerated in
Section 7.01(c) of the Plan (including without limitation any U. S. Trustee Fees
for the period from and after the Effective Date), and which shall be funded on
the Effective Date for the time period set forth in Section 7.01 of the Plan and
replenished subsequent to such period as provided in Section 7.01 of the Plan.
2
Section 1.05 AGENT means Bank of America, N.A., as Agent under the
Credit Agreement or any successor thereto.
Section 1.06 ALLOWED means, with respect to a Claim, the extent to
which a Claim is not objected to within the period fixed by the Bankruptcy Code,
the Bankruptcy Rules or orders of the Court, or is otherwise allowed by a Final
Order, and is (a) scheduled by the Debtors pursuant to the Bankruptcy Code and
the Bankruptcy Rules in a liquidated amount and not listed as contingent,
unliquidated or disputed, or (b) timely Filed under applicable law pursuant to
the Bankruptcy Code, the Bankruptcy Rules or any applicable orders of the Court,
or (c) late-Filed and allowed by Court Order after notice and a hearing. Unless
otherwise specified herein, in section 506(b) of the Bankruptcy Code or by Final
Order, "Allowed ________ Claim," shall not, for the purposes of distributions
under the Plan, include (x) for Pre-Petition Claims, interest on such Claims
accruing from or after the Petition Date, (y) punitive or exemplary damages, or
(z) any fine, penalty or forfeiture. Notwithstanding the foregoing, for purposes
of the Revolving Lender Claims, "Allowed" shall have the meaning set forth in
the definition of "Allowed Revolving Lender Claims."
Section 1.07 ALLOWED ADMINISTRATIVE CLAIM means an Administrative
Claim to the extent it is Allowed.
Section 1.08 ALLOWED CLAIMor ALLOWED CLASS [ ] CLAIM means a Claim
to the extent that such Claim is Allowed.
Section 1.09 ALLOWED PRIORITY CLAIM means a Priority Claim to the
extent it is Allowed.
Section 1.10 ALLOWED REVOLVING LENDER CLAIMS means the Revolving
Lender Claims, which have previously been Allowed pursuant to the Cash
Collateral Orders, free from offset, setoff or counterclaim, without regard to
or any limitation imposed by section 506 of the Bankruptcy Code or any other
provision of the Bankruptcy Code.
Section 1.11 ALLOWED SECURED CLAIM means a Secured Claim to the
extent it is Allowed.
Section 1.12 ASSET LLC means the limited liability corporation
organized on or prior to the Effective Date under the laws of the State of
Delaware which, as of the Effective Date, shall own all of the Assets of
UniCapital except for the Causes of Action, the D&O Claims and the D&O
Insurance.
Section 1.13 ASSETS means all property of the Debtors (prior to the
Effective Date) and of the Reorganized Debtors, Asset LLC and Litigation LLC
(from and after the Effective Date) of any kind, nature or description,
including, without limitation, all property of the Estates as set forth in
Bankruptcy Code section 541, Cash,
3
Causes of Action, D&O Insurance, tax refunds, claims of right, interests and
property, real and personal, tangible and intangible, actual and contingent.
Section 1.14 AVAILABLE CASH means all Cash of the applicable
Disbursing Agent, less Cash or reserves necessary, as determined in the
reasonable discretion of the Disbursing Agent, (i) for incurred and anticipated
costs of administration and operating expenses of such Disbursing Agent, and
(ii) for funding the Disputed Claims Reserves established by such Disbursing
Agent; PROVIDED, that with respect to the Class 5 Escrow Account, "Available
Cash" shall mean all Cash in such account, less reserves necessary, as
determined in the reasonable discretion of UniCapital, for (x) incurred and
anticipated bank account fees and other costs of administering such account, (y)
incurred and anticipated Class 5 Litigation Costs, and (z) incurred and
anticipated costs related to the distribution of the Supplemental Net Proceeds
Payment, if any.
Section 1.15 BALLOT means the ballot distributed to a holder of an
Allowed Claim belonging to a Class entitled to vote on which ballot such holder
of an Allowed Claim may vote for or against the Plan.
Section 1.16 BANK INVESTOR means Bank of America, as agent and Bank
Investor, and each institution that is a party to the TAA in the capacity of a
Bank Investor.
Section 1.17 BANK OF AMERICA means Bank of America, N.A.
Section 1.18 BANKRUPTCY CODE means the Bankruptcy Reform Act of
1978, as amended and codified at title 11 of the United States Code, 11 U.S.C.
ss.ss. 101 ET SEQ.
Section 1.19 BANKRUPTCY COURT or COURT means the United States
Bankruptcy Court for the Southern District of New York which has jurisdiction
over the Chapter 11 Cases.
Section 1.20 BANKRUPTCY RULES means the Federal Rules of Bankruptcy
Procedure and the Official Bankruptcy Forms, as amended, the Federal Rules of
Civil Procedure, as amended, made applicable through the Federal Rules of
Bankruptcy Procedure, and the Local Rules of the Bankruptcy Court.
Section 1.21 BAR DATE means such date(s) fixed by Order(s) of the
Bankruptcy Court by which proofs of Claim, proofs of Interest, or requests for
allowance of Administrative Claims must be Filed.
Section 1.22 BAR DATE ORDER means the Order of the Bankruptcy
Court fixing the Bar Date.
Section 1.23 BUSINESS DAY means any day except a Saturday, Sunday,
or "legal holiday" as such term is defined in Bankruptcy Rule 9006(a).
4
Section 1.24 BUDGET means the budget annexed to each of the Cash
Collateral Orders.
Section 1.25 CASH means cash and cash equivalents in U.S.
dollars.
Section 1.26 CASH COLLATERAL ORDERS means, collectively, the Interim
Cash Collateral Order and the Final Cash Collateral Orders as such orders may be
extended or modified from time to time by order of the Bankruptcy Court.
Section 1.27 CAUSES OF ACTION means any and all claims, rights and
causes of action that may be brought or could have been brought by or on behalf
of the Debtors arising before, on or after the Petition Date, whether known or
unknown, suspected or unsuspected, in contract or in tort, at law or in equity
or under any theory of law, including, but not limited to (i) those referred to
in the Disclosure Statement, (ii) any and all claims, rights and causes of
action the Debtors or the Estates may have against any Person arising under or
pursuant to chapter 5 of the Bankruptcy Code, or any similar provision of state
law or any other law, rule, regulation, decree, order, statute or otherwise,
(iii) Intercompany Claims, (iv) derivative claims and (v) any right of setoff or
recoupment, and claims on contracts or breaches of duty imposed by law.
Section 1.28 CHAPTER 11 CASES means case numbers 00-42719 (CB)
through 00-42837 (CB) inclusive, commenced by the Debtors under chapter 11 of
the Bankruptcy Code on the Petition Date in the Bankruptcy Court and case number
01-11617 (CB) filed in the Bankruptcy Court on March 22, 2001, and styled IN RE
JACOM COMPUTER SERVICES, INC., UNICAPITAL CORPORATION, ET al., DEBTORS.
Section 1.29 CLAIM means a claim, as such term is defined in section
101(5) of the Bankruptcy Code, against any of the Debtors.
Section 1.30 CLAIM OBJECTION COSTS means the reasonable costs and
expenses charged by G&T and any other professional advisors retained by
UniCapital or G&T in connection with the prosecution and resolution of
objections to allowance of Class 5 Claims.
Section 1.31 CLAIMS AGENT means Donlin, Recano & Co. or such
successor as the Debtors or the Plan Administrator may designate.
Section 1.32 CLASS means a group of Claims or the Equity Interests
as classified in Article III under the Plan.
Section 1.33 CLASS [___] CLAIM means a Claim in the particular Class
of Claims identified and described in Article III of the Plan.
Section 1.34 CLASS 5 CASH means an amount equal to the sum of (i)
the Minimum Funding Requirement, PLUS (ii) the Additional Funding Requirement,
PLUS (iii) the Subsequent Funding Requirement, if any, PLUS (iv) the Net
Proceeds Sharing Payment, if any, PLUS (v) the Supplemental Net Proceeds
Payment, if any.
5
Section 1.35 CLASS 5 CLAIMANT AMOUNT has the meaning set forth in
Section 5.05(c).
Section 1.36 CLASS 5 DISTRIBUTION AMOUNT has the meaning set forth
in Section 5.05(c).
Section 1.37 CLASS 5 ESCROW ACCOUNT means a segregated account which
shall be established and maintained by UniCapital as Disbursing Agent for
purposes of holding the Class 5 Cash, and which shall be used solely to fund
Distributions of Class 5 Cash and the Class 5 Litigation Costs.
Section 1.38 CLASS 5 LITIGATION COSTS means the Permitted Avoidance
Action Costs and the Claim Objection Costs.
Section 1.39 COLLATERAL means any property or interest in property
of the estates of the Debtors that is subject to an unavoidable Lien to secure
the payment or performance of an Allowed Claim.
Section 1.40 COLLATERAL VALUE means the value of Collateral securing
the Allowed Secured Claim of a Class 3 Claimant, in the amount set forth for
such Collateral in an Exhibit to the Disclosure Statement.
Section 1.41 COMMITTEE means the Official Committee of Unsecured
Creditors appointed in the Chapter 11 Cases by the United States Trustee
pursuant to section 1102 of the Bankruptcy Code, as such committee has been or
may be hereafter amended.
Section 1.42 COMMITTEE PRESERVED ISSUE means the right of the
Committee to properly commence an adversary proceeding or contested matter
solely to challenge the perfection of the liens, mortgages or security interests
granted by Jacom Computer Services, Inc. to the Agent and the Lenders under the
Credit Agreement, covering assets located in the State of New York pursuant to
the provisions of the Uniform Commercial Code.
Section 1.43 COMPROMISE AND SETTLEMENT means the settlement which is
part of and incorporated in the Plan resolving issues among the Debtors, the
Lenders and other parties as described in Section 2.01 of the Plan.
Section 1.44 CONFIRMATION DATE means the date on which the Clerk of
the Bankruptcy Court enters the Confirmation Order.
Section 1.45 CONFIRMATION HEARING means the hearing conducted by the
Bankruptcy Court to consider confirmation of the Plan.
Section 1.46 CONFIRMATION ORDER means the order, entered by the
Clerk of the Bankruptcy Court, confirming the Plan in accordance with the
provisions of the Bankruptcy Code.
6
Section 1.47 CONSUMMATION DATE means the date on which the Plan is
substantially consummated as defined in section 1101 of the Bankruptcy Code.
Section 1.48 CORPORATE EXHIBIT APPENDIX means the Exhibits
consisting of the Operating Agreements for Asset LLC and Litigation LLC, the
valuation of the Newco common stock, the articles of incorporation and bylaws of
Newco, and the lists of officers and directors as of the Effective Date, to be
Filed on the Exhibit Filing Date.
Section 1.49 CREDIT AGREEMENT means that certain Credit Agreement,
dated as of June 10, 1998, as amended, restated, modified and supplemented from
time to time among UniCapital, the Lenders listed therein and the Agent, and any
of the documents or instruments related thereto pursuant to which the Lenders
have made loans and credit accommodations to the Debtors.
Section 1.50 D&O CLAIMS means claims or Causes of Action that may be
brought or could have been brought by or on behalf of the Debtors or
derivatively in the name of the Debtors against any former director or officer
of any Debtor who did not serve as a director or officer of a Debtor during the
Chapter 11 Cases and any proceeds thereof (regardless of the source of the
payment, including any D&O Insurance).
Section 1.51 D&O INSURANCE means any directors' and officers'
insurance (including without limitation any errors and omissions insurance and
any fidelity bond insurance) maintained by the Debtors which covers the Debtors'
present and former officers and directors, and all claims, Causes of Action and
rights of recovery of the Debtors arising under or with respect to such
insurance.
Section 1.52 D&O INDEMNITIES means those certain indemnification
agreements, effective as of the Effective Date, between the Agent and certain
officers, directors and employees of the Debtors who served as officers,
directors or employees of the Debtors during the Chapter 11 Cases, pursuant to
which the Agent agreed to indemnify such persons with respect to certain
liabilities which may be owed by the Debtors.
Section 1.53 DEBTORS shall have the meaning ascribed in the
Introduction herein.
Section 1.54 DIP LOANS means the amounts borrowed by the Debtors
under the Cash Collateral Orders.
Section 1.55 DISALLOWED means the extent to which a Disputed Claim
is not Allowed whether by Final Order of the Court, by agreement of the parties
or otherwise.
Section 1.56 DISBURSING AGENT means (i) Asset LLC, with respect to
Class 1 Claims, Class 2 Claims, and Class 3 Claims; and (ii) UniCapital or its
successor by merger or otherwise, with respect to all other Classes of Claims
and with respect to Administrative Claims and Priority Claims.
7
Section 1.57 DISCLOSURE STATEMENT means the written disclosure
statement, that relates to the Plan, as amended, supplemented or modified from
time to time, and as approved by the Bankruptcy Court pursuant to section 1125
of the Bankruptcy Code.
Section 1.58 DISCLOSURE STATEMENT ORDER means the order of the
Court, INTER ALIA, approving the Disclosure Statement as containing adequate
information pursuant to section 1125 of the Bankruptcy Code.
Section 1.59 DISPUTED CLAIM means (a) if no proof of Claim has been
timely Filed or deemed timely Filed under applicable law or Final Order, a Claim
that has been listed on a Debtor's Schedules as disputed, contingent or
unliquidated; or (b) if a proof of Claim has been Filed or deemed timely Filed
under applicable law or Final Order, a Claim as to which an objection or request
for estimation has been timely Filed and which has not been (i) withdrawn, (ii)
Disallowed or (iii) Allowed by a Final Order; or (c) a Claim that is listed on
the Exhibit entitled "Disputed Claims" in the Supplemental Appendix to be Filed
by the Debtors on or before the Exhibit Filing Date.
Section 1.60 DISPUTED CLAIMS RESERVE means the reserve(s)
established by the applicable Disbursing Agent pursuant to Section 7.01 of the
Plan for the payment of Disputed Claims that may become Allowed Claims after the
Effective Date, which reserve(s) shall be held by such Disbursing Agent in trust
for the benefit of the holders of Disputed Claims that become Allowed Claims.
Subject to Article VII of the Plan, Asset LLC shall be responsible for
establishing the Disputed Claim Reserve(s) for Classes 2 and 3, and UniCapital
shall be responsible for establishing the Disputed Claim Reserve(s) for all
other Classes (except Class 1) and for Administrative and Priority Claims.
Section 1.61 DISPUTED NON-TAX RESERVE means the Disputed Claims
Reserve established by UniCapital under Article VII of the Plan as part of the
Priority Claims Reserve, for the payment of Disputed Priority Non-Tax Claims
that may become Allowed Claims after the Effective Date.
Section 1.62 DISPUTED TAX RESERVE means the Disputed Claims Reserve
established by UniCapital under Article VII of the Plan, in the amount as
determined by the Agent in its sole discretion or such greater amount as
determined by the Bankruptcy Court, as part of the Priority Claims Reserve, for
the payment of: (i) Disputed Priority Tax Claims that may become Allowed Claims
after the Effective Date, and (ii) any claims arising in connection with or
under the Tax Indemnity.
Section 1.63 DISTRIBUTION means the distribution in accordance with
the Plan of any property or Assets distributed under the Plan.
Section 1.64 DISTRIBUTION ADDRESS means the address set forth in the
relevant proof of Claim, as such address may have been updated pursuant to
Bankruptcy Rule 2002(g). If no proof of Claim is Filed in respect of a
particular Claim, such defined term means the address set forth in the relevant
Debtor's Schedules, as such address may have been updated pursuant to Bankruptcy
Rule 2002(g).
8
Section 1.65 DISTRIBUTION DATE means each of (a) the Initial
Distribution Date, and (b) the first Business Day after each December 31 and
June 30 after the Effective Date, or as soon thereafter as is reasonably
practicable, on which the applicable Disbursing Agent may make Distributions in
accordance with the terms of the Plan.
Section 1.66 EFFECTIVE DATE means a Business Day selected by the
Debtors after all conditions to the Effective Date set forth in Section 11.02
have been satisfied or waived by the Debtors with the consent of the Agent, or
as soon thereafter as may be practicable.
Section 1.67 EQUIPMENT LEASES means the equipment leases, finance
contracts, installment loans, secured loans, sale/leaseback arrangements,
repurchase agreements and similar contracts under which the Debtors are or were
lessors or lenders and which are or were owned by the Debtors in the ordinary
course of their business on or prior to the Effective Date, and any and all
maintenance and servicing contracts related thereto under which the Debtors are
or were obligated to provide such maintenance or servicing.
Section 1.68 EQUIPMENT LESSEE means a lessee, borrower or other
obligor party to an Equipment Lease.
Section 1.69 EQUITY INTEREST means the interest held by any Person
in the equity of any of the Debtors, including, without limitation, any "equity
security" in the Debtors as defined by section 101(16) of the Bankruptcy Code.
Section 1.70 ESTATES means, as to each Debtor, the estate of such
Debtor in its respective Chapter 11 Case created by and existing by operation of
law pursuant to Bankruptcy Code section 541 upon the commencement of such
Chapter 11 Case.
Section 1.71 EXCESS CASH COLLATERAL SWEEPS has the meaning set forth
in the Cash Collateral Orders.
Section 1.72 EXCESS PORTLAND PROCEEDS has the meaning set forth in
Section 7.01(d) of the Plan.
Section 1.73 EXCLUDED AMOUNTS means any payments received from an
Equipment Lessee or other party pursuant to an Equipment Lease, or from any
obligor or other party with respect to any other Asset, which either represent
or are allocated by PFSC in its reasonable discretion for: (i) Lessee Tax
Payments, fees or other charges imposed by any governmental authority or agency,
(ii) application fees, tax processing fees, wire transfer fees, express mail
fees, filing fees, delivery fees, document preparation fees, insurance premiums,
late charges and other penalty amounts, (iii) indemnity payments by an Equipment
Lessee or other obligor, (iv) any payments relating to equipment servicing
and/or maintenance payments pursuant to an Equipment Lease or other Asset, or
(v) recoupment or reimbursement by PFSC of amounts set forth in items (i)
through (iv) of this paragraph.
9
Section 1.74 EXHIBIT means an exhibit to either the Plan or the
Disclosure Statement.
Section 1.75 EXHIBIT APPENDICES shall mean the Corporate Exhibit
Appendix, the Supplemental Appendix, and such other appendices of Exhibits as
may be Filed.
Section 1.76 EXHIBIT FILING DATE means the last date by which forms
of the Exhibits to the Plan shall be Filed with the Bankruptcy Court, which date
(a) with respect to the Corporate Exhibit Appendix, shall be not later than
twenty (20) days before the date on which the Confirmation Hearing will be held,
or such later date as may be fixed by the Bankruptcy Court, and (b) with respect
to the Supplemental Appendix, shall be not later than the Effective Date or such
later date as may be fixed by the Bankruptcy Court.
Section 1.77 FACE AMOUNT means (a) with respect to any Claim for
which a proof of Claim is Filed, an amount equal to: (i) the liquidated amount,
if any, specified therein; and/or (ii) any other amount estimated by the Court
in accordance with Bankruptcy Code section 502(c) and the relevant Plan
provisions; or (b) if no proof of Claim is Filed and such Claim is scheduled in
the relevant Debtor's Schedules, the amount of the Claim scheduled as
undisputed, fixed and liquidated.
Section 1.78 FILE or FILED means filed with the Bankruptcy Court in
the Chapter 11 Cases or, with respect to the filing of proofs of Claim, filed
with the Claims Agent in accordance with the Bar Date Order.
Section 1.79 FINAL CASH COLLATERAL ORDERS means (i) the two orders
of the Bankruptcy Court, each entitled "Final Order Authorizing (I) Debtors to
Obtain Post-Petition Financing Pursuant to 11 U.S.C. ss.ss. 105, 361, 362,
364(c)(1), 364(c)(2), 364(c)(3) and 364(d), and (II) Debtors' Limited Use of
Cash Collateral, Granting Replacement Liens and Adequate Protection, and
Administrative Expense Priority to Bank of America, N.A., as Agent, and to
Certain Pre-Petition Lenders," dated January 8, 2001 and April 2, 2001,
respectively, and (ii) the Final Order for Period from July 1, 2001 to September
17, 2001 Authorizing (I) Debtors to Obtain Post-Petition Financing Pursuant to
11 U.S.C. ss.ss. 105, 361, 362, 364(c)(1), 364(c)(2), 364(c)(3) and 364(d), and
(II) Debtors' Limited Use of Cash Collateral, Granting Replacement Liens and
Adequate Protection, and Administrative Expense Priority to Bank of America,
N.A., as Agent, and to Certain Pre-Petition Lenders, dated June 28, 2001, and
(iii) the Final Order for Period from September 18, 2001 through December 31,
2001 Authorizing (I) Debtors to Obtain Post-Petition Financing Pursuant to 11
U.S.C. ss.ss. 105, 361, 362, 364(c)(1), 364(c)(2), 364(c)(3) and 364(d), and
(II) Debtors' Limited Use of Cash Collateral, Granting Replacement Liens and
Adequate Protection, and Administrative Expense Priority to Bank of America,
N.A., as Agent, and to Certain Pre-Petition Lenders, dated September 26, 2001,
as such orders may be extended or modified by order of the Bankruptcy Court from
time to time.
10
Section 1.80 FINAL CLAIMS RESOLUTION DATE means the date on which
the last Disputed Claim has been resolved, either by consent, Final Order or
otherwise.
Section 1.81 FINAL ORDER means an order as to which no stay of
execution is in effect and as to which the time to appeal, petition for
certiorari, or move for reargument or rehearing has expired and as to which no
appeal, petition for certiorari, or other proceedings for reargument or
rehearing shall then be pending or as to which any right to appeal, petition for
certiorari, motion for reargument, or rehearing shall have been waived in
writing or, in the event that an appeal, writ of certiorari, or reargument or
rehearing thereof has been sought, such order shall have been affirmed or
certiorari shall have been denied by the highest court to which such order was
timely appealed or from which certiorari, reargument or rehearing was timely
sought, and the time to take any further appeal, petition for certiorari or
motion for reargument or rehearing shall have expired.
Section 1.82 G&T means Greenberg Traurig LLP, counsel to the
Debtors.
Section 1.83 GENERAL UNSECURED CLAIM means an unsecured Claim that
is not an Administrative Claim, a Priority Tax Claim, a Revolving Lender Claim,
a Lehman Secured Claim, a Secured Claim, a Priority Non-Tax Claim, a Penalty
Claim or a Subordinated Claim.
Section 1.84 INITIAL DISTRIBUTIONS means the first Distributions to
holders of Allowed Claims to be made on the Initial Distribution Date, as
provided for in Section 7.02 of the Plan.
Section 1.85 INITIAL DISTRIBUTION DATE means the Effective Date or
as soon thereafter as is reasonably practicable.
Section 1.86 INTERCOMPANY CLAIM means any Claims between and among
the Debtors.
Section 1.87 INTERIM CASH COLLATERAL ORDER means the Order
Authorizing (I) Debtors' Limited Use of Cash Collateral, Granting Replacement
Liens and Adequate Protection, and Administrative Expense Priority to Bank of
America, N.A., as Agent, and to Certain Pre-Petition Lenders and (II) Setting a
Final Hearing Date, dated December 12, 2000.
Section 1.88 INTEREST means (a) a share in a corporation, whether or
not transferable or denominated "stock," or similar security, (b) a membership
interest in a limited liability company, (c) an interest of a limited partner in
a limited partnership, (d) a warrant or right (other than a right to convert) to
purchase, sell or subscribe to a share, security or interest of a kind specified
in subparagraphs (a), (b) and (c) of this paragraph, or (e) an interest of a
general partner in a limited or general partnership.
11
Section 1.89 LEASE COLLECTION ACTIONS means Causes of Action held by
the Debtors with respect to the collection and enforcement of any of the
Debtors' Equipment Leases, or with respect to the recovery or collection of
Lessee Tax Payments.
Section 1.90 LEHMAN means Lehman Commercial Paper Inc.
Section 1.91 LEHMAN COLLATERAL means the Collateral granted under
the Lehman Credit Agreement to secure the obligations under the Lehman Credit
Agreement.
Section 1.92 LEHMAN CREDIT AGREEMENT means that certain credit
agreement, dated as of July 21, 2000, as amended, restated or supplemented,
among UCP Engines Trust and UCP German Holdings, Inc., the banks and other
financial institutions or entities from time to time a party to the Lehman
Credit Agreement as lender, Lehman Brothers Inc., as advisor, lead arranger and
book manager, Lehman, as syndication agent, and Lehman, as administrative agent,
together with all documents referenced therein or executed in connection
therewith and all transactions contemplated thereby.
Section 1.93 LEHMAN SECURED CLAIM means the Secured Claims arising
under the Lehman Credit Agreement.
Section 1.94 LENDERS means Bank of America, N.A., in its capacity as
Agent and Lender, European American Bank and People's Bank, which are parties to
the Credit Agreement, and each of their respective predecessors, successors and
assigns.
Section 1.95 LESSEE TAX PAYMENTS means: (a) any and all payments (i)
actually made by Equipment Lessees (or their respective agents) under the
Equipment Leases to the Debtors, the Reorganized Debtors or their respective
subsidiaries, or to PFSC or any other entity on behalf of the Debtors, the
Reorganized Debtors or their subsidiaries, or to any other entity with respect
to which the Debtors, the Reorganized Debtors or their subsidiaries have
subrogation, turnover, collection or similar legal, contractual or equitable
rights with respect to tax payments received by such other entity, and (ii)
which are actually received, indefeasibly, by the Debtors, the Reorganized
Debtors or their subsidiaries or by PFSC or any other entity on behalf of the
Debtors, the Reorganized Debtors or their subsidiaries, and (iii) which relate
to, or allocated by the Debtors, the Reorganized Debtors, their subsidiaries or
PFSC, in their reasonable discretion, to any sales taxes, use taxes, property
taxes and other taxes, levies, fees and charges (including penalties and
interest) imposed, assessed, charged or collected by governmental units, and (b)
any refunds related thereto that are received by the Debtors, the Reorganized
Debtors or their subsidiaries or by PFSC or any other entity on behalf of the
Debtors, the Reorganized Debtors or their subsidiaries.
Section 1.96 LIEN means any charge against or interest in property
to secure payment of a debt or performance of an obligation.
Section 1.97 LIEN RELEASE CONDITION means, in connection with the
release of the Liens of the Agent and Lenders upon the Class 5 Cash, the
condition precedent that the Effective Date occurs on or before January 26,
2002, or such later date agreed to by the Agent and the Requisite Lenders.
12
Section 1.98 LITIGATION LLC means the limited liability company
organized on or prior to the Effective Date under the laws of the State of
Delaware which, as of the Effective Date, after the transactions described in
Article VI of the Plan, shall own all of the Causes of Action, D&O Claims and
D&O Insurance of the Debtors; PROVIDED, that the Seller Tax Indemnities shall be
owned and retained by UniCapital.
Section 1.99 MANAGERS means the managers of Asset LLC and Litigation
LLC, who shall be designated as provided in Section 6.02 of the Plan.
Section 1.100 MEMBERSHIP INTERESTS means the membership interests of
each of Asset LLC and Litigation LLC.
Section 1.101 MINIMUM FUNDING REQUIREMENT means the amount of
$5,000,000.
Section 1.102 NET PROCEEDS means the Cash indefeasibly received from
and after the Effective Date from the sale, transfer, collection, re-leasing,
remarketing, refinancing or other disposition of all Assets of the Reorganized
Debtors, Asset LLC and Litigation LLC to the extent not subject to the Allowed
Lien of the holder of a Class 2 or Class 3 Claim, including without limitation
any recoveries (by judgment, settlement or otherwise) in respect of any Causes
of Action, the D&O Claims and the D&O Insurance, and the Reorganized Debtors'
residual interests in the stock or assets of the TAA Subsidiaries (subject to
Section 2.01(b) hereof), the Securitization Subsidiaries and other non-Debtor
Subsidiaries, LESS (i) Excluded Amounts, and (ii) all reasonable, necessary and
customary expenses attributable to such sale, transfer, collection, re-leasing,
remarketing, refinancing or other disposition of the Assets, including servicing
fees of PFSC, the costs of curing any defaults under any executory contracts or
leases, brokerage commissions and fees, taxes, and reasonable professional fees
and expenses arising from and after the Effective Date, PROVIDED, however, that
Net Proceeds shall not include the Class 5 Cash if the Lien Release Condition is
satisfied or waived by the Agent and the Requisite Lenders in their sole
discretion; PROVIDED FURTHER, that the Net Proceeds shall not include the Seller
Tax Indemnities, which shall be owned and retained by UniCapital; PROVIDED
FURTHER, HOWEVER, that Net Proceeds shall not include any tax attributes or
benefits that may be realized or deemed realized by Newco or through the
ownership of any interest in Newco, Asset LLC, Litigation LLC or the Reorganized
Debtors.
Section 1.103 NET PROCEEDS SHARING PAYMENT has the meaning set forth
in Section 5.05(b).
Section 1.104 NEWCO means a Delaware corporation to be formed by
UniCapital which shall, as of the Effective Date, after the transactions
described in Article VI of the Plan, be a wholly-owned subsidiary of Bank of
America or its designee.
Section 1.105 NEWCO ASSUMED DEBT means all liabilities and
obligations to pay and satisfy the portion of the Allowed Revolving Lender
Claims not deemed satisfied by the transfer of the stock of Newco to Bank of
America or its designee.
13
Section 1.106 OLD UNICAPITAL COMMON STOCK means the common stock or
Interests issued by UniCapital and outstanding immediately prior to the
Effective Date or held in treasury.
Section 1.107 OPERATING AGREEMENTS means the operating agreements
with respect to Asset LLC and Litigation LLC.
Section 1.108 ORDINARY COURSE PROFESSIONALS ORDER means the Order
Authorizing Debtors to Employ, Retain, and Compensate Professionals In Ordinary
Course, dated February 20, 2001 and any subsequent notices filed pursuant to the
Ordinary Course Professionals Order, authorizing the Debtors to retain, employ
and compensate certain professionals in the ordinary course of the Debtors'
businesses.
Section 1.109 OTHER SECURED CLAIMS means all Allowed Secured Claims
other than the Revolving Lender Claims and the Lehman Secured Claim.
Section 1.110 P&C AGREEMENT means that certain payment and
collection agreement dated as of March 28, 2000, as amended, between Bank of
American, N.A., Norwest Bank Minnesota, National Association and the UniCapital
Entities (as such term is defined in the P&C Agreement).
Section 1.111 PFSC means Portfolio Financial Servicing Company, a
Delaware corporation, or its successor by merger, replacement or otherwise.
Section 1.112 PAYING AGENT means the Agent with respect to the
Revolving Lender Claims, stock transfer agents, agents contractually authorized
and/or obligated to make Distributions to holders of Allowed Claims and similar
intermediaries and agents participating in making or conveying Distributions as
required by the Plan.
Section 1.113 PENALTY CLAIM means any Claim, or portion of a Claim,
seeking payment for a fine, penalty or forfeiture, or for multiple, exemplary or
punitive damages, to the extent that such fine, penalty, forfeiture or damages
are not compensation for actual pecuniary loss suffered by the holder of such
Claim; PROVIDED, that the holder of a Penalty Claim may also have a Claim in
another Class for the portion of its Claim which is not a Penalty Claim.
Section 1.114 PERMITTED AVOIDANCE ACTION COSTS means the reasonable
costs and expenses charged by TS&S and any other professional advisors retained
by Litigation LLC to assist TS&S in connection with the prosecution and
resolution of the Permitted Avoidance Actions.
Section 1.115 PERMITTED AVOIDANCE ACTIONS means Causes of Action
arising under section 547(b) of the Bankruptcy Code against the Persons
identified by the Committee and agreed to by the Debtors and the Agent;
PROVIDED, that such Persons shall not include: (i) insiders or affiliates of the
Debtors, including without limitation those Persons that were insiders or
affiliates within one year prior to the Petition Date; (ii) Bank of the America,
the Agent, the Lenders and their respective officers, directors, agents,
affiliates, advisors, employees and representatives, Clifford Chance Rogers &
14
Wells, LLP, Arthur Andersen LLP, and any of the professional advisors of any of
the foregoing; (iii) other holders of Secured Claims; (iv) the TAA Parties, the
Securitization 1999 Subsidiaries and the Securitization 2000 Subsidiaries, and
their respective officers, directors, agents, affiliates, advisors, employees
and representatives, and any of the professional advisors of any of the
foregoing; (v) any Equipment Lessees; (vi) any equipment vendors with Secured
Claims or other rights of recourse against property of the Estates or against
Equipment Lessees; (vii) Portland; and/or (viii) PFSC.
Section 1.116 PERSON means an individual, corporation, general
partnership, limited partnership, limited liability company, limited liability
partnership, association, joint venture, trust, estate, unincorporated
organization, or a government or any agency or political subdivision thereof.
Section 1.117 PETITION DATE means December 11, 2000, the date upon
which the chapter 11 petitions of each of the Debtors were filed with the
exception of Aircraft 23651, Inc., for which Petition Date means March 22, 2001.
Section 1.118 PLAN means this chapter 11 plan of reorganization,
including, without limitation, such Exhibit Appendices and other Exhibits and
schedules as may be Filed in connection with the Plan, as such may be altered,
amended, or otherwise modified from time to time.
Section 1.119 PORTLAND means UniCapital Operations Group, Inc.
Section 1.120 PORTLAND ASSETS means the property of Portland.
Section 1.121 PORTLAND RESERVE SHARING PAYMENT has the meaning set
forth in Section 7.01(d) of the Plan.
Section 1.122 PORTLAND SALE PROCEEDS means the Cash proceeds
received by the Debtors prior to the Petition Date from the sale of the Portland
Assets in the amount of $10,000,000, which is subject to the Allowed Lien of the
Agent for the benefit of itself and the Lenders.
Section 1.123 PORTLAND TRANSACTION means the sale of the Portland
Assets to PFSC pursuant to a certain purchase agreement and related documents
dated as of December 1, 2000, and the execution of the Servicing Agreements.
Section 1.124 PRE-PETITION CLAIM means any Claim arising on or prior
to the Petition Date.
Section 1.125 PRE-PETITION LENDER INDEBTEDNESS means the obligations
arising under or with respect to the Credit Agreement and all other documents
and agreements executed in connection therewith, as amended, modified,
supplemented or restated from time to time prior to the Petition Date, in the
approximate aggregate principal amount of $243,000,000, together with accrued
and unpaid interest, including interest arising after the Petition Date through
the date the Pre-Petition Lender Indebtedness is paid in full in cash, without
regard to the limitations in Bankruptcy Code
15
ss. 506, other contingent obligations and costs and expenses, including, without
limitation, attorneys' fees, other professional fees and disbursements.
Section 1.126 PRIORITY CLAIMS means, collectively, all Priority
Non-Tax Claims and Priority Tax Claims.
Section 1.127 PRIORITY CLAIMS RESERVE means a reserve or reserves
established by UniCapital, in separate segregated accounts, to fund (a) Allowed
Priority Tax Claims as of the Effective Date, (b) Allowed Priority Non-Tax
Claims as of the Effective Date, (c) the Disputed Tax Reserve, and (d) the
Disputed Non-Tax Reserve. The Priority Claims Reserve shall be funded and used
as provided in Article VII of the Plan.
Section 1.128 PRIORITY NON-TAX CLAIM means any Claim entitled to
priority pursuant to section 507(a) of the Bankruptcy Code, other than (a) an
Administrative Claim, or (b) a Priority Tax Claim.
Section 1.129 PRIORITY RESERVE REPAYMENT AMOUNT has the meaning set
forth in Section 7.01(d) of the Plan.
Section 1.130 PRIORITY TAX CLAIM means any Claim entitled to
priority pursuant to section 507(a)(8) of the Bankruptcy Code.
Section 1.131 PROFESSIONALS means the attorneys, accountants and
other professionals whose retention has been approved by the Court in the
Chapter 11 Cases.
Section 1.132 PROFESSIONAL FEES means the compensation and
reimbursement of expenses of Professionals.
Section 1.133 RATABLE or RATABLE SHARE means a number (expressed as
a percentage) equal to the proportion that an Allowed Claim bears to the
aggregate amount of Allowed Claims in the same Class plus Disputed Claims (each
in their aggregate Face Amount) in such Class as of the date of determination.
Section 1.134 REINSTATED means leaving unaltered the legal,
equitable and contractual rights to which a Claim entitles the holder of such
Claim, in accordance with section 1124 of the Bankruptcy Code.
Section 1.135 RELEASED PORTLAND PROCEEDS has the meaning set forth
in Section 7.01(d) of the Plan.
Section 1.136 REORGANIZED DEBTORS means each of the Debtors other
than UniCapital, together with any successors thereto by merger, consolidation,
or otherwise, on and after the Effective Date.
Section 1.137 REQUISITE LENDERS means the individual Lenders
comprising more than one-half in number of all Lenders (other than participants)
and
16
holding at least two-thirds of the aggregate amount outstanding under the
Credit Agreement calculated without giving effect to any sales of
participations.
Section 1.138 REVOLVING LENDER CLAIMS means the sum (without
duplication) of all Claims of the Agent and the Lenders arising under or with
respect to the Credit Agreement, the DIP Loans, the Cash Collateral Orders and
the Plan, including, without limitation, (i) the Pre-Petition Lender
Indebtedness, (ii) the outstanding balance of the DIP Loans, (iii) the amount of
the Administrative Claims Reserve funded on the Effective Date LESS any amounts
returned to the Agent under Section 7.01(b) of the Plan, (iv) amounts paid from
and after the Effective Date to fund the Administrative Expense Budget LESS any
unused amounts returned to the Agent under Section 7.01(c) of the Plan, (v)
Claims for reimbursement, whether arising before or after the Petition Date or
following the Confirmation Date, of all remaining, unpaid reasonable costs, fees
and expenses of the Agent and the Lenders (including their respective legal,
financial advisor and other professional fees and expenses), and (vi) any other
amounts comprising the Revolving Lender Distribution.
Section 1.139 REVOLVING LENDER DISTRIBUTION means an amount equal to
the sum (without duplication) of (i) the first $200,000,000 of Net Proceeds,
(ii) the amount of the DIP Loans made during the Chapter 11 Cases which have not
been repaid by the Effective Date, (iii) the amount of the Administrative Claims
Reserve funded on the Effective Date LESS any amounts returned to the Agent
under Section 7.01(b) of the Plan, and any additional amounts used to fund
Allowed Administrative Claims and other reserves as may be required in
connection with the confirmation of the Plan LESS portions thereof that are
returned to the Agent under the Plan, (iv) amounts paid from and after the
Effective Date to fund the Administrative Expense Budget LESS any unused amounts
returned to the Agent under Section 7.01(c) of the Plan, (v) the aggregate
amount of cash collateral held by the Debtors as of the Effective Date LESS any
such cash collateral actually swept and paid to the Agent under the Plan or
Confirmation Order, (vi) an amount equal to (x) the aggregate amount of cash
collateral used by the Debtors during their Chapter 11 Cases which use of cash
collateral shall include the reimbursement of reasonable legal, financial
advisor and other professional fees and expenses incurred by the Agent and the
Lenders LESS (y) any Excess Cash Collateral Sweeps actually used to permanently
reduce the Pre-Petition Lender Indebtedness; (vii) the amount (without
duplication) of the Minimum Funding Requirement, the Additional Funding
Requirement, and, if any, the Subsequent Funding Requirement; and (viii) any
amounts paid by the Agent pursuant to the D&O Indemnities. The Revolving Lender
Distribution shall not be funded from the Class 5 Cash, which shall be used
exclusively to fund Distributions to the holders of Allowed Class 5 Claims and
the Class 5 Litigation Costs, free and clear of any Liens of the Agent and the
Lenders, provided that the Lien Release Condition shall have been satisfied or
waived by the Agent and the Requisite Lenders in their sole discretion. In the
event the Lien Release Condition is not satisfied or waived by the Agent and the
Requisite Lenders in their sole discretion, then the provisions of Sections
5.01(d) and 5.05(c) of the Plan shall apply with respect to the Revolving Lender
Distribution and the Class 5 Cash and other Class 5 Distributions.
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Section 1.140 SCHEDULES means the schedules of assets and
liabilities and the statement of financial affairs, as each may be amended from
time to time, Filed by the Debtors as required by Bankruptcy Code section 521
and the Bankruptcy Rules.
Section 1.141 SECURED CLAIM means a Claim, other than the Allowed
Revolving Lender Claims, secured by a Lien on any Asset of the Debtors, or right
of setoff, which Lien or right of setoff, as the case may be, is valid,
perfected and enforceable under applicable law and is not subject to avoidance
under the Bankruptcy Code or applicable non-bankruptcy law, but only to the
extent of the value, pursuant to section 506(a) of the Bankruptcy Code, of any
interest of the holder of the Claim in property of the Estate(s) securing such
Claim; PROVIDED, that with respect to Class 3 Claims, the Secured Claims
comprising such Class shall be equal to the respective Collateral Values set
forth in an Exhibit to the Disclosure Statement.
Section 1.142 SECURITIZATION 1999 SUBSIDIARIES means UCP 99-1 LLC I
(a Nevada limited liability company) and UCP 99-1 LLC II (a Nevada limited
liability company).
Section 1.143 SECURITIZATION 2000 SUBSIDIARIES means UniCapital
2000-1 LLC I (a Nevada limited liability company) and UniCapital 2000-1 LLC II
(a Nevada limited liability company).
Section 1.144 SECURITIZATION COLLATERAL means all collateral pledged
by the Securitization Subsidiaries and the Debtors to secure their respective
obligations under the Securitizations.
Section 1.145 SECURITIZATION SUBSIDIARIES means the Securitization
1999 Subsidiaries and the Securitization 2000 Subsidiaries.
Section 1.146 SECURITIZATIONS means those certain securitization
transactions pursuant to that certain Indenture, dated August 1, 1999, with the
Securitization 1999 Subsidiaries as issuers of certain equipment contract backed
notes, and that certain Indenture, dated March 1, 2000, with the Securitization
2000 Subsidiaries as issuers as issuers of certain equipment contract backed
notes.
Section 1.147 SECURITY means security as defined in Section 101 of
the Bankruptcy Code.
Section 1.148 SELLER TAX INDEMNITY means any claim, right, privilege
or benefit of a Debtor arising under any agreement or obligation, contractual or
otherwise, of any Person that was a non-Debtor party to any agreement involving
the acquisition (whether of stock or assets), merger into or exchange of
interests in a Debtor, to indemnify, hold harmless, reimburse or otherwise
contribute to a Debtor or its affiliates with respect to or in connection with
any tax, assessment, levy, charge or fee, or any interest or penalty thereon,
due or owing to any governmental authority or agency.
Section 1.149 SERVICING AGREEMENTS means that certain Servicing
Agreement by and among PFSC, UniCapital and certain of its affiliates dated as
of
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December 1, 2000, as it may be amended from time to time, and that certain
Transition Services Agreement between PFSC and UniCapital dated as of December
1, 2000, as it may be amended from time to time.
Section 1.150 STATE GOVERNMENTAL AUTHORITY means any state, city,
county or local governmental authority or agency.
Section 1.151 SUBORDINATED CLAIM means any Claim, except for the
Allowed Revolving Lender Claims, that is subject to subordination under Section
510 of the Bankruptcy Code, including, without limitation, any Claim arising
from the rescission of a purchase or sale of a Security of the Debtors or
affiliates of the Debtors, for damages from the purchase or sale of a Security
of the Debtors or affiliates of the Debtors, or for reimbursement or
contribution allowed under section 502 of the Bankruptcy Code on account of such
Claim.
Section 1.152 SUBSEQUENT FUNDING REQUIREMENT means an amount no
greater than $1,000,000, subject to the conditions set forth in Section 5.05(b)
of the Plan.
Section 1.153 SUBSIDIARY means any entity of which UniCapital owns
directly or indirectly all of the outstanding Interests.
Section 1.154 SUPPLEMENTAL APPENDIX means the schedules of assumed
executory contracts and unexpired leases (in addition to those other contracts
and leases assumed pursuant to Section 10.01 of the Plan) and Disputed Claims
(in addition to those otherwise defined as "Disputed Claims" in the Plan) to be
Filed on the Exhibit Filing Date.
Section 1.155 SUPPLEMENTAL NET PROCEEDS PAYMENT has the meaning set
forth in Section 5.05(b) of the Plan.
Section 1.156 TAA means the Amended and Restated Transfer and
Administration Agreement, dated as of August 16, 1999 (as amended, restated, and
supplemented from time to time) by and among the TAA Parties, together with all
documents referenced therein or executed in connection therewith and all
transactions contemplated thereby.
Section 1.157 TAA COLLATERAL means all collateral pledged by UCP
Qualifying SPE 1998-1 Limited Partnership and UCP Operating SPE 1998-1 Limited
Partnership under the TAA to secure the obligations under the TAA.
Section 1.158 TAA PARTIES means Kitty Hawk Funding Corporation (a
Delaware corporation), the Bank Investors parties to the TAA, the TAA
Subsidiaries, PFSC and Bank of America, N.A., as agent and Bank Investor.
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Section 1.159 TAA SUBSIDIARIES means UCP Qualifying SPE 1998-1
Limited Partnership (a Nevada limited partnership) and UCP Operating SPE 1998-1
Limited Partnership (a Nevada limited partnership).
Section 1.160 TAA PURCHASE AGREEMENT means the Receivables Purchase
Agreement, dated June 22, 1998 (as amended, restated, and supplemented from time
to time), by and among UniCapital, UniCapital Funding Corporation and the TAA
Subsidiaries.
Section 1.161 TAX INDEMNITY has the meaning set forth in Section
7.12 of the Plan.
Section 1.162 TERMINATION DATE has the meaning set forth in Section
7.05(c) of the Plan.
Section 1.163 TREASURY REGULATION means those regulations
promulgated pursuant to the Internal Revenue Code of 1986, as amended.
Section 1.164 TS&S means Togut, Segal & Segal LLP, counsel to the
Committee.
Section 1.165 UNCLAIMED PROPERTY means any Distributions unclaimed
on or after the Initial Distribution Date. Unclaimed Property shall include: (a)
checks (and the funds represented thereby) (i) mailed to a Distribution Address
and returned as undeliverable without a proper forwarding address or (ii) not
mailed or delivered because no Distribution Address to mail or deliver such
property was available, and (b) funds for checks delivered but uncashed within
one year after the applicable Distribution Date.
Section 1.166 UNICAPITAL means UniCapital Corporation, a Debtor or
its successor by merger or otherwise. Any reference to the rights, obligations
and duties of UniCapital as "Disbursing Agent" shall apply to UniCapital or its
successor Disbursing Agent, as applicable.
Section 1.167 UNICAPITAL EQUITY INTERESTS means all Equity Interests
in UniCapital.
Section 1.168 U.S. TREASURY RATE means the rate of interest per
annum (rounded upward, if necessary, to the nearest whole 1/100 of 1%) equal to
the yield equivalent (as determined by the Secretary of the Treasury) of the
average accepted auction price for the last auction of 90-day United States
Treasury bills settled at least fifteen days prior to the Effective Date.
Section 1.169 U.S. TRUSTEE FEES means all fees and charges assessed
against the Estates by the United States Trustee and due pursuant to section
1930 of title 28 of the United States Code.
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C. RULES OF CONSTRUCTION.
Section 1.170 GENERALLY. For purposes of the Plan, (a) any reference
in the Plan to an existing document or Exhibit Filed or to be Filed means such
document or Exhibit as it may have been or may be amended, modified or
supplemented; (b) 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; and (c) the rules of construction set forth in
Bankruptcy Code section 102 and the Bankruptcy Rules shall apply unless
superseded herein or in the Confirmation Order.
Section 1.171 EXHIBITS. All Exhibits, when Filed, are incorporated
into and are a part of the Plan as if set forth in full herein. The Exhibit
Appendices shall be filed on the Exhibit Filing Date.
Section 1.172 TIME PERIODS. In computing any period of time
prescribed or allowed by the Plan, the provisions of Bankruptcy Rule 9006(a)
shall apply.
Section 1.173 MISCELLANEOUS RULES. (i) The words "herein," "hereof,"
"hereunder," and other words of similar import refer to the Plan as a whole, not
to any particular Section, subsection, or clause, unless the context requires
otherwise; (ii) whenever it appears appropriate from the context, each term
stated in the singular or the plural includes the singular and the plural, and
each pronoun stated in the masculine, feminine or neuter includes the masculine,
feminine and the neuter; and (iii) captions and headings to Articles and
Sections of the Plan are inserted for convenience or reference only and are not
intended to be a part of or to affect the interpretation of the Plan.
ARTICLE II.
COMPROMISE AND SETTLEMENT; GENERAL RULES
REGARDING CLASSIFICATION
OF CLAIMS AND INTERESTS
Section 2.01 COMPROMISE AND SETTLEMENT.
(a) The Plan represents and incorporates a proposed Compromise and
Settlement, pursuant to Bankruptcy Code section 1123(b)(A) and Bankruptcy Rule
9019, of certain issues related primarily to: (i) whether the Assets and
liabilities of the Estates of each of the Debtors should be aggregated and
pooled for the limited purpose of Plan voting and the administrative convenience
of identifying and making payments to creditors, (ii) whether and to what extent
proceeds from the sale of certain Assets should be allocated among the Debtors
based upon their respective claims of ownership to certain Assets sold
thereunder, (iii) the amount and priority of certain Intercompany Claims, (iv)
the payment of the Revolving Lender Claims and the release by the Agent for
itself and on behalf of the Lenders of their otherwise Allowed and fully
enforceable Lien upon the Class 5 Cash for the benefit of the Debtors and their
Estates (provided that the Lien Release Condition is satisfied or waived by the
Agent and the Requisite Lenders in their sole discretion), (v) the treatment of
tax claims which may be owed by the
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Debtors, the TAA Subsidiaries, the Securitization Subsidiaries and other
Subsidiaries and the treatment of state and local tax returns which have been
filed by the Debtors, the TAA Subsidiaries, the Securitization Subsidiaries and
other Subsidiaries, (vi) the treatment of the TAA and the Estates' receipt of
cash flow from and residual interests in the TAA Collateral, (vii) the release
of the Committee Preserved Issue and the funding of the Class 5 Cash, and (viii)
the release of all claims against the Debtors, their affiliates and Subsidiaries
and their respective agents, employees, attorneys, professionals, officers and
directors who have served in such capacities during the Chapter 11 Cases with
respect to all issues related to the Debtors, including the Portland
Transaction, and of all claims against the Agent, the Lenders, the TAA Parties,
Portland, PFSC, Newco, Asset LLC and Litigation LLC and their respective agents,
employees, affiliates, subsidiaries, officers and directors with respect to all
issues related to the Debtors, including the Portland Transaction. The
provisions of the Plan relating to the above matters and the treatment of each
Class of Claims under the Plan reflect this Compromise and Settlement, which,
upon the Confirmation Date, shall be binding upon the Debtors, all Creditors,
and all Persons whether or not such Persons have voted to accept or reject the
Plan.
(b) As part of the aforementioned Compromise and Settlement, (i)
Bank of America as agent and Bank Investor pursuant to the TAA, and each of the
other Bank Investors pursuant to the TAA, shall receive full payment of all
principal, interest, fees and expenses, to the extent of the assets of the TAA
Subsidiaries, prior to any claims or interests of the Estates in such assets;
and (ii) the TAA Subsidiaries shall waive their claims against the Debtors
resulting from the exercise by Bank of America as agent pursuant to the TAA of
it rights of recourse against the TAA Subsidiaries pursuant to the second, third
and fourth sentences of the second paragraph of section 2.9 of the TAA to the
extent that such claims by the TAA Subsidiaries would result in Bank of America,
as Bank Investor, receiving recoveries from the Debtors on account of such
rights of recourse, whether under the TAA, the TAA Purchase Agreement or
otherwise (but the TAA Subsidiaries do not waive such claims against the Debtors
to the extent that such claims would result in additional recoveries to Lehman
as Bank Investor), and (iii) Bank of America, as agent and Bank Investor
pursuant to the TAA shall consent to the waiver of such claims of the TAA
Subsidiaries against the Debtors, and shall waive (I) any related lien rights
Bank of America as agent and Bank Investor pursuant to the TAA may have in such
claims of the TAA Subsidiaries against the Debtors, as set forth in the
preceding clause 2.01(b)(ii), and (II) any claims that it may hold against the
Debtors in connection with such claims of the TAA Subsidiaries, whether under
the TAA, the TAA Purchase Agreement or otherwise.
Section 2.02 GENERAL RULES OF CLASSIFICATION UNDER THE BANKRUPTCY
CODE. In accordance with Bankruptcy Code section 1123(a)(1), Administrative
Claims and Priority Tax Claims have not been classified and thus are excluded
from the Classes. All other Claims and Interests have been classified. A Claim
or Interest is classified in a particular Class only to the extent that the
Claim or Interest falls within the description of that Class and is classified
in other Class(es) to the extent that any remainder of the Claim or Interest
falls within the description of such other Class(es). A Claim is also placed in
a particular Class for the purpose of receiving Distributions pursuant to the
Plan only to the extent that such Claim is an Allowed Claim in that Class and
such Claim has not been
22
paid, released, or otherwise settled prior to the Effective Date.
Notwithstanding the foregoing provisions of this paragraph, Class 1 shall
consist of all amounts described in the definition of "Revolving Lender Claims"
in the Plan, and no such amounts shall be classified in other Class(es) for any
purposes under the Plan.
Section 2.03 UNDERSECURED CLAIMS. Except with respect to the Class 1
Revolving Lender Claims, to the extent that the amount of an Allowed Claim is
greater than the Collateral Value of the Collateral securing such Claim
(assuming the Collateral Value of such Collateral is greater than $0), subject
to section 1111(b) of the Bankruptcy Code, such Claim is classified both in the
Class 3 Claims to the extent of such Collateral Value and Class 5 or 6 (as
appropriate) for the excess of such Claim over the applicable Collateral Value.
Notwithstanding anything to the contrary herein, absent a Final Order or
agreement fixing the Allowed amount of a Secured Claim or the scheduling of such
Secured Claim as liquidated, nondisputed and noncontingent on the relevant
Debtor's Schedules, the relevant Debtor and/or Reorganized Debtor is not bound
by a classification made or implied by a claimant with respect to any particular
Claim; PROVIDED, that the classification and definition of the Revolving Lender
Claims herein shall be binding for all purposes.
Section 2.04 PENALTY CLAIMS. To the extent any Allowed Claims
include amounts which are Penalty Claims, any such Claim or demand for any such
Penalty Claim will be a Class 7 Claim and the holders of such Class 7 Claims
shall not assess or attempt to collect such Penalty Claims from the Reorganized
Debtors, Asset LLC or Litigation LLC or their respective Assets or properties.
ARTICLE III.
CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS
Section 3.01 SUMMARY. Claims, other than Administrative Claims and
Priority Tax Claims, are classified for all purposes, including voting,
confirmation, and distribution, as follows:
Class 1: Allowed Revolving Lender Class 1 consists of the Allowed
Claims Revolving Lender Claims
Class 2: Lehman Secured Claim Class 2 consists of the Lehman Secured
Claim
Class 3: Other Secured Claims Class 3 consists of Other Secured
Claims
Class 4: Priority Non-Tax Claims Class 4 consists of all Priority
Non-Tax Claims
Class 5: General Unsecured Claims Class 5 consists of all General
Unsecured Claims
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Class 6: Subordinated Claims Class 6 consists of all Subordinated
Claims
Class 7: Penalty Claims Class 7 consists of all Penalty Claims
Class 8: UniCapital Equity
Interests Class 8 consists of all UniCapital
Equity Interests
ARTICLE IV.
TREATMENT OF UNCLASSIFIED CLAIMS
Section 4.01 ADMINISTRATIVE CLAIMS. Except to the extent the Debtors
(prior to the Effective Date) or UniCapital, with the consent of the Agent
(after the Effective Date) and the holder of an Allowed Administrative Claim
agree to a different treatment, from and after the Effective Date the
Reorganized Debtors or UniCapital, as the case may be, shall pay to each holder
of an Allowed Administrative Claim, Cash, in an amount equal to such Allowed
Administrative Claim, on the later of (i) the Initial Distribution Date and (ii)
thirty days after the date on which such Administrative Claim becomes an Allowed
Administrative Claim, or as soon thereafter as is practicable; PROVIDED,
HOWEVER, that from and after the Effective Date, Administrative Claims
representing obligations incurred from and after July 31, 2001 in the ordinary
course of business of the Debtors (other than Professional Fees) shall be deemed
Allowed (unless expressly Disallowed by Final Order) and shall be paid by the
Reorganized Debtors or Asset LLC, as the case may be, in accordance with the
terms and conditions of the particular agreements from which such Allowed
Administrative Claims arise; and PROVIDED FURTHER, that Professional Fees for
the period prior to the Confirmation Date shall be paid upon entry of an order
allowing such fees and Professional Fees for the period on and after the
Confirmation Date shall be paid upon rendition of invoices to the Debtors or
their successors.
Section 4.02 PRIORITY TAX CLAIMS.
(a) PAYMENTS. Except as provided in Section 7.12 of the Plan and
except to the extent the Debtors (prior to the Effective Date) or UniCapital
(after the Effective Date), with the consent of the Agent, and the holder of an
Allowed Priority Tax Claim agree to a different treatment, UniCapital shall make
deferred Cash payments to each holder of a Priority Tax Claim over a period not
exceeding six years from the date of assessment of such tax. Such payments shall
be made to each such holder in equal quarterly installments (on the first day of
each calendar quarter) of principal, plus simple interest accruing from the
Effective Date at the U.S. Treasury Rate on the unpaid portion of each Priority
Tax Claim; PROVIDED, HOWEVER, that UniCapital, with the consent of the Agent,
shall have the right to prepay, in whole or in part, at any time on or after the
Effective Date, without premium or penalty, any Priority Tax Claim or any
remaining balance of such Claim. The first such payment shall be due on the
first day of the calendar quarter commencing after the latest of (i) ninety days
after the Effective Date,
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(ii) ninety days after the date on which an order allowing any such Claim
becomes a Final Order, and (iii) such other date that is agreed on by the holder
of an Allowed Priority Tax Claim and UniCapital, with the consent of the Agent,
or as soon after the applicable date as may be practicable.
(b) FUNDING OF PRIORITY TAX CLAIMS. The payment of all Allowed
Priority Tax Claims shall be funded solely and exclusively as follows:
(i) ALLOWED PRIORITY TAX CLAIMS. Priority Tax Claims which are
Allowed as of the Effective Date shall be paid by UniCapital solely from the
Priority Claims Reserve, except as provided in Section 7.12 of the Plan.
(ii) DISPUTED PRIORITY TAX CLAIMS. Priority Tax Claims which
are Disputed Claims as of the Effective Date shall be paid by UniCapital solely
from the Disputed Tax Reserve, except as provided in Section 7.12 of the Plan.
(c) UNICAPITAL AS DISBURSING AGENT. Subject to the provisions of
Article VII of the Plan, from and after the Effective Date, UniCapital shall be
the sole entity liable to the holders of Priority Tax Claims and such holders of
Priority Tax Claims shall have no claims against the Reorganized Debtors, Asset
LLC, Litigation LLC, Newco or their respective properties or their respective
officers and directors, whether current or former.
(d) JURISDICTION OF BANKRUPTCY COURT. Any governmental unit that
accepts Distributions with respect to its Allowed Priority Tax Claims agrees
that by accepting such Distributions, such governmental unit is irrevocably,
without further action on the part of such governmental unit, UniCapital, the
Reorganized Debtors or any other party: (i) submitting to the jurisdiction of
the Bankruptcy Court with respect to all actions, proceedings and disputes
regarding any Claims of such governmental unit that have been or could have been
asserted against the Debtors and their respective properties; (ii) waiving any
immunity or defense to such jurisdiction or to the venue of the Bankruptcy Court
as the forum for all actions, proceedings and disputes regarding such Claims;
and (iii) agreeing that the Bankruptcy Court shall be the exclusive forum for
hearing, litigating and resolving all actions, proceedings and disputes
regarding such Claims, unless an alternative forum is agreed to by UniCapital,
with the consent of the Agent, and such governmental unit.
(e) STATE AND LOCAL TAX RETURNS AND LIABILITIES. The Plan
incorporates a compromise and settlement under Section 9019 of the Bankruptcy
Code, and the findings of the Bankruptcy Court in the Confirmation Order,
regarding the treatment of state and local tax claims which may be owed by the
Debtors and its Subsidiaries (including the TAA Subsidiaries and the
Securitization Subsidiaries) and the treatment of state and local tax returns
which have been filed by the Debtors and its Subsidiaries. In accordance with
such compromise and settlement and the Confirmation Order: (i) no Priority Tax
Claims shall be Allowed with respect to penalties or other amounts that could be
assessed, charged or levied solely on account of the failure by the Debtors and
their Subsidiaries, including the TAA Subsidiaries, to file state and local tax
returns prior
25
to the Effective Date in the names of the entities otherwise required, under
applicable law, to file such returns; and (ii) all state and local tax returns
filed by the Debtors and their Subsidiaries prior to the Effective Date shall be
deemed to have been filed on behalf of all Debtors and Subsidiaries required to
file such returns.
Section 4.03 U.S. TRUSTEE FEES. The Debtors (prior to the Effective
Date) or UniCapital (after the Effective Date) shall pay all U.S. Trustee Fees
until such time as the Court enters a final decree closing each of the Debtors'
cases.
ARTICLE V.
TREATMENT OF CLASSIFIED CLAIMS AND INTERESTS
The holders of Allowed Claims in each Class shall receive the
following distributions where applicable, on or after the Initial Distribution
Date, unless another date is otherwise provided for herein or elsewhere under
the Plan.
Section 5.01 CLASS 1: ALLOWED REVOLVING LENDER CLAIMS
(a) IMPAIRMENT. Holders of Allowed Claims in Class 1 are impaired
and are entitled to vote to accept or reject the Plan in their capacity as
holders of such Claims.
(b) TREATMENT. The Agent, as holder of the Revolving Lender Claim,
for itself and on behalf of the Lenders, shall receive the following: (i) all of
the common stock of Newco, which shall be transferred and distributed by
UniCapital to Bank of America or its designee in partial payment of the Allowed
Revolving Lender Claims (but shall not be included for purposes of calculating
the Revolving Lender Distribution); (ii) Net Proceeds in an amount equal to the
Revolving Lender Distribution; (iii) prior to the Termination Date, after the
Revolving Lender Distribution has been indefeasibly paid in full in cash, fifty
percent (50%) of each Distribution of Net Proceeds until such time as the Agent
shall have received an aggregate amount from all Distributions equal to the
Allowed Revolving Lender Claim; and (iv) after the Termination Date, after the
Revolving Lender Distribution has been indefeasibly paid in full in Cash, one
hundred percent (100%) of each Distribution of Net Proceeds until the Allowed
Revolving Lender Claims have been paid in full. The Distribution of the common
stock of Newco to Bank of America or its designee shall (x) be deemed to have
been received by the Agent for all purposes under the Plan, and (y) be valued
conclusively and irrebuttably for all purposes in accordance with the valuation
set forth in the Corporate Exhibit Appendix, for purposes of determining the
partial credit against the amount owed by UniCapital on account of the Allowed
Revolving Lender Claims. Except as the Agent may otherwise instruct in writing,
the Distribution of the Revolving Lender Distribution and Net Proceeds as
provided in clauses (ii) and (iii) above shall be made by Asset LLC and
Litigation LLC to Newco, which shall then pay such amounts to the Agent, for
itself and on behalf of the Lenders, in satisfaction of the Newco Assumed Debt.
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(c) COMMITTEE PRESERVED ISSUE. Upon the Effective Date, the
Committee Preserved Issue shall automatically be released, waived and
abandoned for all purposes, without any further action or order of the
Bankruptcy Court.
(d) FAILURE OF LIEN RELEASE CONDITION. Notwithstanding anything in
the Plan to the contrary, in the event the Lien Release Condition is not
satisfied or waived by the Agent and the Requisite Lenders in their sole
discretion, then all provisions of the Plan with respect to the allocation of
Net Proceeds and the Portland Sale Proceeds between the Agent and the holders of
Allowed Class 5 Claims shall be of no force or effect, and the Agent, for and on
behalf of itself and the other Lenders, shall receive: (i) the balance of the
Portland Sale Proceeds (after the funding of the Priority Claims Reserve as
provided in Article VII of the Plan), and (ii) one hundred percent (100%) of
each Distribution of Net Proceeds until such time as the Agent shall have
received an aggregate amount from all Distributions equal to the Allowed
Revolving Lender Claims.
(e) MISCELLANEOUS. The Agent shall retain its Liens securing the
Allowed Revolving Lender Claims, including without limitation all Liens against
the Assets of the Reorganized Debtors. The Reorganized Debtors shall assume the
Allowed Revolving Lender Claims, and shall have joint and several liability with
Newco with respect to the Newco Assumed Debt.
Section 5.02 CLASS 2: LEHMAN SECURED CLAIMS.
(a) IMPAIRMENT. Holders of Allowed Lehman Secured Claims in Class 2
are deemed impaired for purposes of voting on the Plan. Each holder of an
Allowed Lehman Secured Claim in Class 2 is entitled to vote to accept or reject
the Plan in its capacity as a holder of such Claim.
(b) TREATMENT. From and after the Effective Date, each of the
Allowed Lehman Secured Claims shall, at the sole option of the Debtors
(exercised prior to the Effective Date) or Asset LLC (after the Effective Date),
be (i) Reinstated with the holder of the Allowed Lehman Secured Claim retaining
its Liens on the Lehman Collateral in accordance with the Lehman Credit
Agreement, (ii) satisfied by returning to the holder of the Allowed Lehman
Secured Claim either the Lehman Collateral securing such Secured Claim or other
Collateral of then equivalent value, (iii) paid Cash in an amount, not to exceed
the Allowed amount of such Claim, equal to the proceeds actually realized from
the sale of any Collateral securing such Claim, less Excluded Amounts and the
actual costs and expenses of disposing of such Collateral, or (iv) given such
other treatment as may be agreed upon between the Debtors (prior to the
Effective Date) or Asset LLC (after the Effective Date), as the case may be, and
the holder of the Allowed Lehman Secured Claim. In the event that the Debtors or
Asset LLC elect, pursuant to option (ii) above, to distribute to the holder of
an Allowed Lehman Secured Claim the Collateral securing such Claim, the holder
of such Claim may request that Asset LLC (a) attempt to sell the Collateral
securing such Claim, or (b) abandon such Collateral. In the event that Asset LLC
honors such a request and attempts to sell such Collateral securing such Claim
or abandons such Collateral, all expenses relating thereto, including, but not
limited to, storage expenses, shall be borne by the holder of the Allowed Lehman
Secured Claim.
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Notwithstanding the foregoing, Asset LLC retains the right to decline to honor a
request by the holder of an Allowed Lehman Secured Claim to attempt to sell such
Collateral.
Section 5.03 CLASS 3: OTHER SECURED CLAIMS.
(a) IMPAIRMENT. Holders of Allowed Claims in Class 3 are impaired.
Each holder of an Allowed Secured Claim in Class 3 is entitled to vote to accept
or reject the Plan in its capacity as a holder of such Claim.
(b) TREATMENT. From and After the Effective Date, at the sole option
of the Debtors (exercised prior to the Effective Date), with the consent of the
Agent, or Asset LLC (exercised after the Effective Date), each holder of an
Allowed Claim in Class 3 shall receive any of the following treatments: either:
(i) such holder shall retain the Lien(s) securing such Class 3 Claim, whether
the Collateral subject to such Lien(s) is retained by the Debtor owing such
Claim or transferred to another entity, to the extent of the Allowed amount of
such Class 3 Claim, and shall receive all Cash proceeds received with respect to
such Collateral net of Excluded Amounts, to the extent of the Allowed amount of
such Class 3 Claim (E.G. all rental payments received by the Reorganized Debtors
in the ordinary course, with respect to Equipment Leases pledged or sold to the
holder of a Class 3 Claim); or (ii) Asset LLC or the Reorganized Debtors shall
sell, subject to Section 363(k) of the Bankruptcy Code, any Collateral subject
to the Lien(s) securing such Class 3 Claim, with such Lien(s) to attach to the
Cash proceeds actually realized from such sale (less Excluded Amounts and the
actual costs and expenses of disposing of such Collateral), and such proceeds
shall be remitted to the holder of such Claim to the extent of the Allowed
amount of such Claim; or (iii) Asset LLC or the Reorganized Debtors shall
abandon the Collateral subject to the Lien(s) securing such Class 3 Claim to
such holder, or grant such holder a Lien on similar Collateral of then
equivalent value; or (iv) such holder shall be given such other treatment as may
be agreed upon between the Debtors (prior to the Effective Date) or Asset LLC
(after the Effective Date), as the case may be, and the holder of such Claim.
Any of the above treatments in subsections (i), (ii) and (iii) may be exercised
in combination or in sequence as to any Allowed Class 3 Claim. For example,
Asset LLC may distribute Cash proceeds as to some portion of the Collateral
under subsection (i), while selling another portion of the Collateral under
subsection (ii) and abandoning another portion of the Collateral under
subsection (iii); or Asset LLC may initially distribute Cash proceeds as to the
Collateral (or a portion of the Collateral) and subsequently elect to sell,
abandon or replace such Collateral under subsection (ii) or (iii).
(c) LESSEE TAX PAYMENTS AND OTHER EXCLUDED AMOUNTS. Pursuant to
Sections 105 and 506(c) of the Bankruptcy Code: (i) any holder of a Class 3
Claim that, prior to the Effective Date, has received any Lessee Tax Payments or
other Excluded Amounts, either directly or thought its agent, shall immediately
remit or cause its agent to remit all such amounts to PFSC; and (ii) any holder
of a Class 3 Claim that, from and after the Effective Date, receives any Lessee
Tax Payments or other Excluded Amounts, either directly or through its agent,
shall remit or cause its agent to remit all such amounts to PFSC no later than
five (5) Business Days after receipt. In the event a holder of a Class 3 Claim
does not comply with the requirements of this paragraph, then UniCapital
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shall be authorized, upon application to the Court with notice to such holder
and with the consent of the Agent, to enforce either or both of the following
remedies: (x) require any Person receiving Cash proceeds with respect to the
Collateral subject to such holder's Lien, to apply such proceeds first to the
extent of all Excluded Amounts then due and remit such Excluded Amounts
immediately to PFSC; and/or (y) change the servicing of such Collateral, such
that all Cash proceeds are paid directly to PFSC, which shall then remit such
proceeds to such holders after recovering all Excluded Amounts then due and the
reasonable, necessary costs of preserving, disposing and servicing such proceeds
and the related Collateral.
(d) CREDIT FOR POST-PETITION PAYMENTS. All Cash proceeds remitted to
the holders of Allowed Class 3 Claims net of Excluded Amounts from and after the
Petition Date with respect to the Collateral related to such Claims, whether
remitted directly to such holders by Equipment Lessees or other Persons or
otherwise (E.G. rental payments made by Equipment Lessees in the ordinary course
of business), shall be credited against the Allowed amounts of such Class 3
Claims and against the Collateral Values set forth in the Exhibit to the
Disclosure Statement, for purposes of determining the amount of Cash proceeds
otherwise due to such holders under this Section 5.03.
(e) EXCLUSIVE TREATMENT. Notwithstanding any provision, term,
representation, warranty, covenant or undertaking in any pre-petition agreement
with the holder of a Class 3 Claim to the contrary, the treatment of Class 3
Claims under this Section 5.03 shall be the sole Distribution on account of
Class 3 Claims and with respect to the Collateral securing such Claims and with
respect to any documents, instruments and agreements underlying such Claims and
any rights and remedies related thereto. The holders of Class 3 Claims shall
receive no other Distributions or other treatment with respect to any rights or
remedies under or related to such documents, instruments and agreements, and
shall have no recourse as to UniCapital, the Reorganized Debtors, Asset LLC,
Litigation LLC or Newco or their respective properties as to any such rights or
remedies, except as otherwise expressly set forth in this Section 5.03 with
respect to Allowed Class 3 Claims. Under no circumstance shall UniCapital, Asset
LLC, Litigation LLC, Newco or any of the Reorganized Debtors have any remaining
obligations under such documents, instruments and agreements, nor any liability
or responsibility for any deficiency claim, collateral value shortfall or breach
of any representation, warranty, covenant or agreement made by the Debtors in
the event the value of the Collateral of any holder of an Allowed Class 3 Claim
is insufficient to pay such Allowed Claim.
Section 5.04 CLASS 4: PRIORITY NON-TAX CLAIMS.
(a) IMPAIRMENT. Holders of Allowed Claims in Class 4 are not
impaired. Each holder of an Allowed Priority Non-Tax Claim in Class 4 is not
entitled to vote to accept or reject the Plan in its capacity as a holder of
such Claim.
(b) TREATMENT. Each holder of an Allowed Claim in Class 4 shall
receive Cash in an amount equal to the amount of such Allowed Claim on the later
of (i) the Initial Distribution Date, or (ii) the Distribution Date for Claims
in Class 4 that were Disputed Claims and have become Allowed Claims, or as soon
thereafter as is
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practicable. The payment of Allowed Priority Non-Tax Claims shall be funded
solely and exclusively from the Priority Claims Reserve, subject to the
provisions of Article VII of the Plan.
Section 5.05 CLASS 5: GENERAL UNSECURED CLAIMS.
(a) IMPAIRMENT. Holders of Allowed Claims in Class 5 are impaired
and are entitled to vote to accept or reject the Plan.
(b) TREATMENT. Subject to the provisions of the Plan, including the
provisions of Sections 5.01(c) and 5.01(d) below, the holders of Allowed Class 5
Claims shall receive, in the aggregate, the Minimum Funding Requirement, the
Additional Funding Requirement, the Subsequent Funding Requirement (if any), the
Net Proceeds Sharing Payment (if any), and the Supplemental Net Proceeds Payment
(if any), as follows:
(i) MINIMUM FUNDING REQUIREMENT: The Minimum Funding
Requirement shall be paid by the Agent into the Class 5 Escrow Account on the
Effective Date.
(ii) ADDITIONAL FUNDING REQUIREMENT: The Additional Funding
Requirement shall be paid into the Class 5 Escrow Account, as follows:
(I) EXCESS PORTLAND PROCEEDS: The Excess Portland
Proceeds, if any, shall be paid by the Agent into the Class 5 Escrow Account on
the Effective Date, pursuant to Section 7.01(d) of the Plan.
(II) PORTLAND RESERVE SHARING PAYMENT: The Portland
Reserve Sharing Payment, if any, shall be paid by the Agent into the Class 5
Escrow Account within thirty (30) days after the third anniversary of the
Effective Date, pursuant to Section 7.01(d) of the Plan.
(III) PERMITTED AVOIDANCE ACTIONS: The gross proceeds
realized from any judgments or settlements reached in connection with the
Permitted Avoidance Actions shall be paid into the Class 5 Escrow Account when
received; PROVIDED, that upon the earlier to occur of (x) the first Business Day
that $10,000,000, in the aggregate, has been disbursed to the Class 5 Escrow
Account to fund the Class 5 Cash (including the Class 5 Litigation Costs), or
(y) the payment by the Agent of the Subsequent Funding Requirement, then any net
proceeds of the Permitted Avoidance Actions thereafter recovered or then held by
any party, after payment of reasonable costs and expenses (other than the Class
5 Litigation Costs) incurred in connection with the prosecution and resolution
of the Permitted Avoidance Actions, shall be remitted to the Agent for
disbursement to the holders of Allowed Class 1 Claims in accordance with the
terms of the Plan.
(iii) SUBSEQUENT FUNDING REQUIREMENT: The Subsequent Funding
Requirement shall be paid by the Agent into the Class 5 Escrow Account on the
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first Business Day after the third anniversary of the Effective Date, but only
if, as of such third anniversary, the aggregate of the Minimum Funding
Requirement and the Additional Funding Requirement, without deducting the Class
5 Litigation Costs, has not exceeded $6,000,000, and in such event the
Subsequent Funding Requirement shall be paid only to the extent necessary to
increase such aggregate amount to $6,000,000. Upon payment by the Agent of the
Subsequent Funding Requirement, if any, holders of Allowed Class 5 Claims shall
receive no further Distributions except with respect to amounts theretofore
deposited into the Class 5 Escrow Account (less the Class 5 Litigation Costs)
and the Supplemental Net Proceeds Payment (if any).
(iv) NET PROCEEDS SHARING PAYMENT. The following amount of Net
Proceeds (the "Net Proceeds Sharing Payment") shall be paid by Asset LLC into
the Class 5 Escrow Account up to and including the third anniversary of the
Effective Date: (I) if the Revolving Lender Distribution has been indefeasibly
paid in full in Cash prior to such third anniversary, fifty percent (50%) of
each Distribution of Net Proceeds thereafter until such time as the Lenders
shall have received an aggregate amount from all Distributions equal to the
Allowed Revolving Lender Claims; and (II) after the Allowed Revolving Lender
Claims have been paid in full, all remaining Distributions of Net Proceeds up to
and including such third anniversary.
(v) SUPPLEMENTAL NET PROCEEDS PAYMENT. In the event the
Allowed Revolving Lender Claims are paid in full, then Asset LLC and Litigation
LLC shall pay an amount equal to the sum of all remaining Net Proceeds (the
"Supplemental Net Proceeds Payment") to UniCapital as Disbursing Agent, which
shall deposit such amounts first, into the Class 5 Escrow Account, for the
purpose of funding additional Distributions to the holders of Allowed Class 5
Claims until such holders are paid the Allowed amounts of their Claims in full,
and next, to the holders of Allowed Claims in Classes 6, 7 and 8 in the order of
priority set forth in the Bankruptcy Code.
(vi) PAYMENTS TO HOLDERS OF ALLOWED CLASS 5 CLAIMS. On the
first Distribution Date after any payment of Class 5 Cash into the Class 5
Escrow Account, UniCapital as Disbursing Agent shall distribute a Ratable Share
of the Available Cash in the Class 5 Escrow Account to each holder of an Allowed
Class 5 Claim.
(c) MAXIMUM DISTRIBUTIONS TO CLASS 5. Notwithstanding anything in
the Plan to the contrary, as of the date (the "Termination Date") the sum of
payments deposited into the Class 5 Escrow Account pursuant to the Minimum
Funding Requirement, the Additional Funding Requirement and the Net Proceeds
Sharing Payment is, at any time prior to the third anniversary of the Effective
Date, equal to the Class 5 Distribution Amount, then:
(i) except for the Supplemental Net Proceeds Payment (if any),
no further amounts shall be paid into the Class 5 Escrow Account for purposes of
Class 5 Distributions, including with respect to the Subsequent Funding
Requirement, any further amounts under the Additional Funding Requirement
(including further proceeds of Permitted Avoidance Actions and the Portland Tax
Sharing Payment), or the
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Net Proceeds Sharing Payment, and all such further amounts and Net Proceeds that
are subsequently received by any Person shall be remitted to the Agent until the
Allowed Revolving Lender Claims are paid in full;
(ii) holders of Allowed Class 5 Claims shall in the aggregate
receive no further Distributions except with respect to (I) amounts theretofore
deposited into the Class 5 Escrow Account (less the Class 5 Litigation Costs),
and (II) the Supplemental Net Proceeds Payment (if any);
(iii) each holder of an Allowed Class 5 Claim shall receive
Distributions only up to the amount of such holder's Class 5 Claimant Amount,
plus a Ratable Share of the Supplemental Net Proceeds Payment (if any); and
(iv) any amounts remaining in the Class 5 Escrow Account with
respect to Disputed Claims in Class 5 which have been Disallowed shall be
remitted to the Agent until the Allowed Revolving Lender Claims are paid in
full.
"Class 5 Distribution Amount," as used herein, means an amount equal to ten
percent (10%) of the sum of all Allowed Class 5 Claims and all Disputed Claims
in Class 5. "Class 5 Claimant Amount," as used herein, means an amount equal to
ten percent (10%) of the amount of each holder's Allowed Class 5 Claim.
(d) FAILURE OF LIEN RELEASE CONDITION. Notwithstanding anything in
the Plan to the contrary, in the event the Lien Release Condition is not
satisfied or waived by the Agent and the Requisite Lenders in their sole
discretion, then all provisions of the Plan with respect to the allocation of
Net Proceeds and the Portland Sale Proceeds between the Agent and the holders of
Allowed Class 5 Claims shall be inapplicable and of no force or effect, and the
holders of Class 5 Claims shall receive no distribution of Class 5 Cash nor any
Distribution of Net Proceeds.
(e) RELEASE OF COMMITTEE PRESERVED ISSUE. On the Effective Date, the
Committee Preserved Issue shall be released and discharged.
(f) RESPONSIBILITY FOR CLASS 5 CLAIMS. From and after the Effective
Date, UniCapital as Disbursing Agent shall be sole entity liable for the Claims
classified in Class 5 under the Plan, and the Reorganized Debtors shall have no
liability or be responsible for any Claim classified in Class 5; PROVIDED, that
Asset LLC, Litigation LLC and the Reorganized Debtors shall be severally
responsible for remitting Net Proceeds to UniCapital as Disbursing Agent for
purposes of any Class 5 Distributions of Net Proceeds required by the Plan.
Section 5.06 CLASS 6: SUBORDINATED CLAIMS.
(a) IMPAIRMENT. Holders of Subordinated Claims in Class 6 are
impaired. For purposes of the Plan, each holder of a Subordinated Claim in Class
6 is conclusively presumed to have rejected the Plan and is not entitled to vote
to accept or reject the Plan.
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(b) TREATMENT. Holders of Subordinated Claims shall receive no
Distribution under the Plan, except for the Supplemental Net Proceeds Payment
(if any).
Section 5.07 CLASS 7: PENALTY CLAIMS.
(a) IMPAIRMENT. Holders of Penalty Claims in Class 7 are impaired.
For purposes of the Plan, each holder of a Penalty Claim in Class 7 is
conclusively presumed to have rejected the Plan and is not entitled to vote to
accept or reject the Plan.
(b) TREATMENT. Holders of Penalty Claims shall receive no
Distribution under the Plan, except for the Supplemental Net Proceeds Payment
(if any).
Section 5.08 CLASS 8: UNICAPITAL EQUITY INTERESTS.
(a) IMPAIRMENT. The holders of the UniCapital Equity Interests in
Class 8 are impaired. For purposes of the Plan, each holder of a UniCapital
Equity Interest in Class 8 is conclusively presumed to have rejected the Plan
and is not entitled to vote to accept or reject the Plan.
(b) TREATMENT. Holders of UniCapital Equity Interests in Class 8
shall receive no Distribution under the Plan, except for the Supplemental Net
Proceeds Payment (if any), and the Old UniCapital Common Stock shall be
cancelled as of the Effective Date by virtue of the Plan and without any action
on the part of the holders thereof.
ARTICLE VI.
IMPLEMENTATION OF PLAN
Section 6.01 CORPORATE TRANSACTIONS.
(a) GENERAL. The transfers pursuant to Article VI of the Plan
constitute a reorganization pursuant to section 368(a)(1)(C) of the Internal
Revenue Code of 1986, as amended. On the Effective Date, the management, control
and operation of the Reorganized Debtors shall become the general responsibility
of the respective boards of directors (or managers, general partners or similar
governing Persons, as applicable) of the Reorganized Debtors.
(b) TRANSFER OF ASSETS TO ASSET LLC. On the Effective Date, in
exchange for all of the Membership Interests in Asset LLC, UniCapital shall
transfer all of its Assets, except for its Causes of Action (including the
Seller Tax Indemnities), its D&O Claims and D&O Insurance, and Cash necessary to
fund the Administrative Claims Reserve, the Administrative Expense Budget and
any other reserves to be established by UniCapital under the Plan, but including
its remaining Cash and its Equity Interests in any Subsidiary and any Lease
Collection Actions held by UniCapital, to Asset LLC, free and clear of all
liens, claims, interests, security interests and encumbrances, pursuant to
section 1123(a)(5) of the Bankruptcy Code, but subject only to those valid and
enforceable liens and security interests as of the Effective Date, including the
Liens of the
33
Agent and Lenders. From and after the Effective Date, neither Asset LLC, Newco
nor any of the Reorganized Debtors nor any of their respective directors,
officers or employees shall owe any fiduciary duty (including a duty of care or
loyalty) to UniCapital, any creditor of UniCapital or any holder of an Interest
in UniCapital, and Asset LLC, Newco and the Reorganized Debtors shall be free to
operate, maintain dispose of and liquidate their property and assets in any
manner in their sole discretion.
(c) TRANSFER OF CAUSES OF ACTION, D&O CLAIMS AND D&O INSURANCE TO
LITIGATION LLC. On the Effective Date, all of the Reorganized Debtors shall
transfer and assign all of their respective Causes of Action (other than Lease
Collection Actions), D&O Claims and D&O Insurance to UniCapital, free and clear
of all liens, claims, interests, security interests and encumbrances, pursuant
to section 1123(a)(5) of the Bankruptcy Code. In exchange for all of the
Membership Interests in Litigation LLC, UniCapital shall then immediately
transfer all Causes of Action (other than Lease Collection Actions and Seller
Tax Indemnities), D&O Claims (other than Seller Tax Indemnities) and D&O
Insurance (other than that related to Seller Tax Indemnities) of UniCapital and
the Reorganized Debtors to Litigation LLC, free and clear of all liens, claims,
interests, security interests and encumbrances, pursuant to section 1123(a)(5)
of the Bankruptcy Code. Notwithstanding anything in the Plan to the contrary,
UniCapital shall own and retain all Seller Tax Indemnities of the Debtors,
including any D&O Claims and D&O Insurance and other claims and insurance
proceeds related to same. From and after the Effective Date, neither Litigation
LLC nor any of its directors, officers or employees shall owe any fiduciary duty
(including a duty of care or loyalty) to UniCapital, any creditor of UniCapital
or any holder of an Interest in UniCapital, and Litigation LLC shall be free to
operate, maintain dispose of and liquidate its property and assets in any manner
in its sole discretion, including with respect to the prosecution of Causes of
Action owned by Litigation LLC.
(d) TRANSFER OF MEMBERSHIP INTERESTS TO NEWCO. On the Effective
Date, immediately after the Asset transfers described in paragraphs (b) and (c)
of this Section 6.01, UniCapital shall transfer the Membership Interests in
Asset LLC and Litigation LLC to Newco, free and clear of all liens, claims,
interests, security interests and encumbrances (other than the Allowed Revolving
Lender Claims), pursuant to section 1123(a)(5) of the Bankruptcy Code, in
exchange for all of the common stock of Newco and the assumption by Newco of the
Newco Assumed Debt. Newco shall assume and have joint and several liability for
the Newco Assumed Debt; PROVIDED, that such debt shall be payable by Newco
solely with respect to its Membership Interests in Asset LLC and Litigation LLC,
and shall be without recourse to any other property or assets of Newco.
(e) TRANSFER OF NEWCO STOCK TO BANK OF AMERICA. On the Effective
Date, immediately after the Membership Interest transfers described in
paragraphs (d) this Section 6.01, UniCapital shall transfer and distribute all
of the common stock of Newco to Bank of America or its designee, free and clear
of all liens, claims, interests, security interests and encumbrances, pursuant
to section 1123(a)(5) of the Bankruptcy Code, in partial payment of the Allowed
Revolving Lender Claims in the amount specified in the Corporate Exhibit
Appendix.
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(f) PLAN IMPLEMENTATION AND DISSOLUTION BY UNICAPITAL. From and
after the Effective Date, after the Newco stock transfer described in paragraph
(e) of this Section 6.01, or as soon as reasonably practicable thereafter, the
officers of UniCapital are authorized and directed: (i) to take such steps as
are necessary to implement and effectuate the duties and responsibilities of
UniCapital under the Plan, including to make the Distributions provided for
under the Plan, and (ii) within one (1) year after the Effective Date, to
dissolve UniCapital and assign its duties as Disbursing Agent to a successor
Disbursing Agent or to merge UniCapital into a limited liability company or
trust under applicable non-bankruptcy law, without any further action by the
shareholders or directors of UniCapital. Other than Claims in Classes 1, 2 and
3, from and after the Effective Date all holders of Allowed Claims shall have
recourse for such Claims solely against UniCapital or its successor Disbursing
Agent, and not against the Reorganized Debtors, Newco, Asset LLC or Litigation
LLC or their respective properties. From and after the Effective Date,
UniCapital's sole assets shall consist (without duplication) of the
Administrative Claims Reserve, funded amounts in the Administrative Expense
Budget, the Priority Claims Reserve, the Seller Tax Indemnities, the Class 5
Cash (if the Lien Release Condition is satisfied), the right to receive any
additional Distributions to the holders of Allowed Claims in Classes 5, 6, 7 and
8 pursuant to Article V of the Plan, and the right to receive any additional
funding of the Administrative Expense Budget and the Priority Claims Reserve
pursuant to Article VII of the Plan.
(g) TRANSFER OF NEWCO STOCK TO BANK OF AMERICA. On the Effective
Date, immediately after the Membership Interest transfers described in
paragraphs (d) this Section 6.01, UniCapital shall transfer and distribute all
of the common stock of Newco to Bank of America or its designee, free and clear
of all liens, claims, interests, security interests and encumbrances, pursuant
to section 1123(a)(5) of the Bankruptcy Code. In sole and full consideration for
such transfer of stock in Newco, the amount of the Allowed Revolving Lender
Claims owed by UniCapital shall be deemed reduced, conclusively and irrebuttably
and for all for all purposes solely in the amount specified in the Corporate
Exhibit Appendix.
Section 6.02 CORPORATE GOVERNANCE.
(a) DIRECTORS OF UNICAPITAL AND THE REORGANIZED DEBTORS.
(i) UNICAPITAL. The Board of Directors of UniCapital shall
consist of the same members of the Board of Directors of UniCapital immediately
prior to the Effective Date, who shall be listed in the Exhibit of officers and
directors in the Corporate Exhibit Appendix. Such Directors shall serve until
UniCapital is dissolved or they are earlier replaced or removed or resign in
accordance with the governing documents of UniCapital and applicable
non-bankruptcy law.
(ii) REORGANIZED DEBTORS. The initial Board of Directors of
each of the Reorganized Debtors shall consist of those individual(s) designated
by the Debtors with the consent of the Agent and the Requisite Lenders, who
shall be listed in the Exhibit of officers and directors in the Corporate
Exhibit Appendix. Such designation
35
shall be subject to all rights of replacement, removal and resignation under the
governing documents of the such entities and applicable non-bankruptcy law.
(b) OFFICERS. The respective initial officers of UniCapital and the
Reorganized Debtors on and after the Effective Date shall be those individual(s)
listed in the Exhibit of officers and directors in the Corporate Exhibit
Appendix. Such officers shall serve from and after the Effective Date in
accordance with any employment agreements, approved by the Agent in its sole
discretion (either as a new agreement or as an approved continuation of a prior
agreement), with UniCapital and/or the Reorganized Debtors under applicable
non-bankruptcy law.
(c) ARTICLES OF INCORPORATION AND BYLAWS. The articles of
incorporation and bylaws of the respective Debtors shall be the respective
articles of incorporation and bylaws of UniCapital and the Reorganized Debtors,
and shall be amended and restated by their respective officers as of the
Effective Date, or as soon as practicable thereafter, to the extent necessary
(i) to prohibit the issuance of nonvoting equity securities as required by
section 1123(a)(6) of the Bankruptcy Code, subject to further amendment of such
articles of incorporation as permitted by applicable law, and (ii) to effectuate
the provisions of the Plan, in each case without any further action by the
stockholders or directors of the Debtors or the Reorganized Debtors.
(d) ASSET LLC AND LITIGATION LLC. The Managers of Asset LLC and
Litigation LLC shall be those individual(s) listed in the Exhibit of officers
and directors in the Corporate Exhibit Appendix, and shall serve subject to all
rights of replacement, removal or resignation in accordance with their
respective Operating Agreements and applicable non-bankruptcy law.
(e) OPERATING AGREEMENTS OF ASSET LLC AND LITIGATION LLC. The
Operating Agreements of Asset LLC and Litigation LLC are included in the
Corporate Exhibit Appendix.
(f) NEWCO. The articles of incorporation and bylaws of Newco are
included in the Corporate Exhibit Appendix. The Board of Directors of Newco
shall consist of those individual(s) listed in the Exhibit of officers and
directors in the Corporate Exhibit Appendix. The initial President and Chief
Executive Officer of Newco shall be listed in the Exhibit of officers and
directors in the Corporate Exhibit Appendix. Such Directors and officers shall
serve subject to all rights of replacement, removal or resignation in accordance
with the governing documents of Newco and applicable non-bankruptcy law.
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ARTICLE VII.
DISPUTED CLAIMS RESERVES, OTHER RESERVES
AND PROVISIONS GOVERNING DISTRIBUTIONS
Section 7.01 DISPUTED CLAIMS RESERVES AND OTHER RESERVES.
(a) ESTABLISHMENT OF DISPUTED CLAIMS RESERVES. On the Effective
Date, and after the completion of all transactions described in Article VI that
are required to be completed on the Effective Date, the applicable Disbursing
Agent shall establish the Disputed Claims Reserve for the Classes over which
such Disbursing Agent has responsibility, which shall be funded as provided in
the Plan and administered by such Disbursing Agent. Notwithstanding any other
provision of the Plan, but subject to the provisions of this Article VII with
respect to the Administrative Claims Reserve and the Priority Claims Reserve,
each Disbursing Agent shall withhold from the property to be distributed under
the Plan, and shall place in the appropriate reserve, a sufficient amount to be
distributed on account of the Face Amount or estimated amount, as the case may
be, of each Disputed Claim that has not become an Allowed Claim as of the date
of a Distribution under the Plan. Each Disbursing Agent shall place Cash and
other property into the Disputed Claims Reserve administered by such Disbursing
Agent, and the Cash shall be held in separate interest bearing accounts in trust
by Class for the benefit of the holders of Allowed Claims entitled thereto under
the terms of the Plan. Any Disputed Claims Reserve shall be terminated upon the
filing with the Bankruptcy Court of a written certification that all
Distributions and other dispositions of all Cash required to be made from such
Disputed Claims Reserve have been made in accordance with the terms of the Plan.
Such written certification shall be sent by the applicable Disbursing Agent,
with a copy to the Agent, within 15 days of the satisfaction of the condition
set forth in the immediately preceding sentence.
(b) ESTABLISHMENT OF ADMINISTRATIVE CLAIMS RESERVE. On the Effective
Date, and after the completion of all transactions described in Article VI that
are required to be completed on the Effective Date, UniCapital shall establish
the Administrative Claims Reserve, which shall be funded out of the Portland
Sale Proceeds and/or the Debtors' cash collateral in existence immediately prior
to the Effective Date (and any such funding shall be a permitted "Non-Conforming
Use" under the Cash Collateral Orders), and which amount shall increase, dollar
for dollar, the amount of the Revolving Lender Claims upon such funding. The
Administrative Claims Reserve shall be administered by UniCapital, and shall be
used solely to fund: (i) all Administrative Claims which are Allowed and have
not been paid as of the Effective Date, which shall be paid as provided in
Article IV of the Plan, (ii) the Disputed Claims Reserve for Administrative
Claims, which shall be used to fund Disputed Administrative Claims which later
become Allowed Administrative Claims, (iii) unpaid fees and expenses of
Professionals as provided in Section 13.03 of the Plan, and (iv) any U. S.
Trustee Fees for the period prior to the Effective Date which have not been paid
as of the Effective Date. The Administrative Claims Reserve shall be subject to
the Allowed Lien of the Agent, which shall be automatically released, without
further action by the Bankruptcy Court, the Agent, the Lenders or any other
party, only as to amounts used to pay Allowed
37
Administrative Claims, fees and expenses of Professionals and U. S. Trustee Fees
as provided in this paragraph. In the event that the amounts funded in the
Administrative Claims Reserve on the Effective Date are insufficient to fund
Allowed Administrative Claims, then any such unfunded amounts shall be funded by
either Asset LLC out of Net Proceeds or by the Agent. Any unused amounts in the
Administrative Claims Reserve, after all Administrative Claims have been either
Allowed or Disallowed by Final Order, shall be paid by UniCapital to the Agent.
(c) ADMINISTRATIVE EXPENSE BUDGET. On the Effective Date, and after
the completion of all transactions described in Article VI that are required to
be completed on the Effective Date, UniCapital shall establish a segregated
account for the Administrative Expense Budget, which shall be used solely to
fund the expenses of UniCapital to implement and effectuate its duties and
responsibilities under the Plan from and after the Effective Date (including
without limitation any U. S. Trustee Fees for the period from and after the
Effective Date, and any expenses of preparing tax returns and other corporate
expenses). The Administrative Expense Budget for the first six (6) full calendar
months after the Effective Date (plus pro rata amounts for any stub period from
the Effective Date to the end of such calendar month) shall be funded on the
Effective Date out of the Debtors' cash collateral in existence immediately
prior to the Effective Date, and such amount shall increase, dollar for dollar,
the amount of the Revolving Lender Claims upon such funding. After such initial
budget period, Asset LLC shall provide additional funding, out of the Net
Proceeds, to replenish the Administrative Expense Budget for the subsequent
three (3) calendar months, in an amount and on terms acceptable to the Agent in
its sole discretion (in a budget submitted to the Agent at least fifteen (15)
days prior to the expiration of the budget period), to be funded on the first
day of such budget period. Asset LLC shall likewise replenish the Administrative
Expense Budget for each subsequent three-month period, to be paid on the first
date of each such period. UniCapital, as Disbursing Agent, shall, unless
otherwise consented to by the Agent, adhere to the Administrative Expense Budget
for each budget period on a line-by-line basis, without carry-forward to any
subsequent budget period. All amounts comprising the Administrative Expense
Budget shall be subject to the Allowed Lien of the Agent, which shall be
automatically released, without further action by the Bankruptcy Court, the
Agent, the Lenders or any other party, only as to amounts used to pay the
expenses of UniCapital as Disbursing Agent as provided in this paragraph. Any
unused amounts in the Administrative Expense Budget at the end of each budget
period shall be paid by UniCapital to the Agent, and such amounts shall
decrease, dollar for dollar, the amount of the Revolving Lender Claims upon such
payment.
(d) ESTABLISHMENT OF PRIORITY CLAIMS RESERVE. On the Effective Date,
and after the completion of all transactions described in Article VI that are
required to be completed on the Effective Date, UniCapital shall establish the
Priority Claims Reserve which shall be administered by UniCapital as Disbursing
Agent, subject to the following:
(i) ACCOUNTS AND FUNDING. The Priority Claims Reserve shall
consist of four (4) segregated accounts, for Allowed Priority Tax Claims,
Allowed Priority Non-Tax Claims, the Disputed Tax Reserve and the Disputed
Non-Tax Reserve.
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The Priority Claims Reserve shall be funded exclusively out of the Portland Sale
Proceeds.
(ii) RELEASE OF PORTLAND SALE PROCEEDS. If the sum of the
Priority Claims Reserve and the portion of the Administrative Claims Reserve
funded from the Portland Sale Proceeds as of the Effective Date is less than the
amount of the Portland Sale Proceeds, then the Agent shall pay such difference
(the "Excess Portland Proceeds") into the Class 5 Escrow Account on the
Effective Date. Within twenty (20) days after each anniversary of the Effective
Date, the accountants of UniCapital as Disbursing Agent shall certify, in
writing to the Disbursing Agents, the Agent and TS&S, (i) the amounts in each of
the four (4) segregated accounts comprising the Priority Claims Reserve (for
Allowed Priority Tax Claims, Allowed Priority Non-Tax Claims, the Disputed Tax
Reserve and the Disputed Non-Tax Reserve), (ii) the amounts in all accounts
comprising the Administrative Claims Reserve, and (iii) amounts in the Disputed
Tax Reserve representing any portions of Disputed Priority Tax Claims which have
been Disallowed since the later of the Effective Date or the prior anniversary
of the Effective Date. On the first Business Day after each such annual
certification is delivered, funds equal to the sum of the amount described in
clause (iii) of the immediately preceding sentence (the "Released Portland
Proceeds") shall be distributed from the Disputed Tax Reserve to the Agent in
further reduction of the Allowed Class 1 Claims; PROVIDED, that within twenty
(20) days after all Disputed Priority Tax Claims have been resolved (either
Allowed or Disallowed), such accountants shall provide a similar certification
as to amounts described in such clause (iii), and a final payment of Released
Portland Proceeds shall similarly be made to the Agent.
(iii) PORTLAND RESERVE SHARING PAYMENT. Within thirty (30)
days after the third anniversary of the Effective Date, the Agent shall pay into
the Class 5 Escrow Account an amount (the "Portland Reserve Sharing Payment")
equal to twenty-five percent (25%) of the difference between (x) the aggregate
of all Released Portland Proceeds disbursed to the Agent with respect to the
first three years after the Effective Date, and (y) the amount of all claims
made by Asset LLC, Litigation LLC or the Reorganized Debtors under or in respect
of the Tax Indemnity.
(iv) NO COMMINGLING OF RESERVE ACCOUNTS. The accounts for
Allowed Priority Tax Claims and the Disputed Tax Reserve may not be used to fund
Allowed Priority Non-Tax Claims or the Disputed Non-Tax Reserve. Likewise, the
accounts for Allowed Priority Non-Tax Claims and the Disputed Non-Tax Reserve
may not be used to fund Allowed Priority Tax Claims or the Disputed Tax Reserve.
(v) LIEN OF AGENT. The Priority Claims Reserve shall be
subject to the Allowed Lien of the Agent, which shall be automatically released,
without further action by the Bankruptcy Court, the Agent, the Lenders or any
other party, only as to amounts used to pay Allowed Priority Claims, Disputed
Priority Claims which later become Allowed Priority Claims, and the Class 5 Cash
to the extent permitted under the Plan.
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(vi) MINIMUM FUNDING REQUIREMENT. Notwithstanding anything
herein to the contrary, the Minimum Funding Requirement may, in the Agent's sole
discretion, be funded from the Portland Sale Proceeds before the Disputed Tax
Reserve and the Disputed Non-Tax Reserve are otherwise funded from the Portland
Sale Proceeds in accordance with the terms of the Plan. Asset LLC shall pay to
UniCapital, as Disbursing Agent, from Net Proceeds thereafter received by it
after the Effective Date, the amount (the "Priority Reserve Repayment Amount")
of the Portland Sale Proceeds used to fund the Minimum Funding Requirement
before any Net Proceeds are paid to the Agent on account of the Allowed
Revolving Lender Claims. The Priority Reserve Repayment Amount shall be used by
UniCapital solely to fund the Disputed Tax Reserve and the Disputed Non-Tax
Reserve and for no other purpose. The Agent shall be vested with the sole
discretion to determine which of the accounts comprising the Disputed Tax
Reserve and the Disputed Non-Tax Reserve are funded after the Effective Date
from the Priority Reserve Repayment Amount.
Section 7.02 DISTRIBUTIONS TO HOLDERS OF CLAIMS AND INTERESTS.
(a) INITIAL AND SUBSEQUENT DISTRIBUTIONS. On the Initial
Distribution Date and each subsequent Distribution Date, the applicable
Disbursing Agent shall make a Distribution out of Available Cash to: (i) each
holder of an Allowed Claim in Cash in accordance with the terms of the Plan;
(ii) each Paying Agent in Cash, in accordance with the terms of the Plan, that
such Paying Agent shall distribute to holders of Allowed Claims in the relevant
Class; and (iii) if applicable, the Disputed Claims Reserve(s) in an amount
equal to the Cash allocated for Disputed Claims in accordance with the terms of
the Plan. Subject to Section 7.02(b) below, the amount of Cash to be paid on the
Initial Distribution Date and subsequent Distribution Dates to holders of
Allowed Claims will be calculated as if each Disputed Claim were an Allowed
Claim in its Face Amount.
(b) ESTIMATION OF CLAIMS. The Debtors (prior to the Effective Date)
or the applicable Disbursing Agent (after the Effective Date) may, at any time,
request that the Bankruptcy Court estimate any Claim subject to estimation under
section 502(c) of the Bankruptcy Code and for which the Debtors or such
Disbursing Agent may be liable under the Plan, including any Claim for taxes, to
the extent permitted by section 502(c) of the Bankruptcy Code, regardless of
whether any party in interest previously objected to such Claim; and the
Bankruptcy Court shall retain jurisdiction to estimate any Claim pursuant to
section 502(c) of the Bankruptcy Code at any time during litigation concerning
any objection to any Claim. In the event that the Bankruptcy Court estimates any
contingent or unliquidated Claim, that estimated amount will constitute either
the Allowed amount of such Claim or a maximum limitation on such Claim, as
determined by the Bankruptcy Court. If the estimated amount constitutes a
maximum limitation on such Claim, the Debtors (prior to the Effective Date) or
the applicable Disbursing Agent (after the Effective Date) may elect to pursue
any supplemental proceedings to object to any ultimate allowance on such Claim.
All of the aforementioned Claims objection, estimation and resolution procedures
are cumulative and not necessarily exclusive of one another. Claims may be
estimated and subsequently compromised, settled, withdrawn or resolved by any
mechanism approved by the Bankruptcy Court.
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(c) RESOLUTION OF DISPUTED CLAIMS. No Distribution or payment shall
be made on account of a Disputed Claim until such Disputed Claim becomes an
Allowed Claim. No Distribution or payment shall be made to any holder of an
Allowed General Unsecured Claim who is also a potential defendant in an
avoidance action under chapter 5 of the Bankruptcy Code. For purposes of the
Plan, such Distribution or payment on account of such Allowed General Unsecured
Claim shall be held in the Disputed Claims Reserve as if it were a Disputed
Claim. Unless otherwise ordered by the Bankruptcy Court, after the Effective
Date, the applicable Disbursing Agent shall have the exclusive right to make and
file objections to Claims and to settle, compromise or otherwise resolve
Disputed Claims and to assert any counterclaims, setoff rights and similar
rights with respect to such Disputed Claims (subject to Section 7.05 of the
Plan), except that (i) as to applications for allowances of compensation and
reimbursement of expenses under sections 330 and 503 of the Bankruptcy Code,
objections may be made in accordance with the applicable Bankruptcy Rules by
parties-in-interest, and (ii) the Agent and the Committee reserve the right, at
their expense, to file and prosecute their objections to any Claims. The
applicable Disbursing Agent shall file and serve a copy of each objection upon
the holder of the Claim to which an objection is made, as soon as practicable,
but in no event later than (x) one hundred-twenty days after the Effective Date,
or (y) such other time as may be fixed or extended by the order of the
Bankruptcy Court. UniCapital shall retain G&T from and after the Effective Date
to resolve and prosecute all objections to allowance of Class 5 Claims.
(d) DISTRIBUTIONS WHEN A DISPUTED CLAIM BECOMES AN ALLOWED CLAIM; OR
WHEN A DISPUTED CLAIM IS SUBSEQUENTLY DISALLOWED. On the first Distribution Date
from and after the Initial Distribution Date, or as soon thereafter as
practicable, the applicable Disbursing Agent shall make Distributions, in
accordance with the provisions of the Plan (calculated as of such Distribution
Date), of Cash reserved for any Disputed Claim that has become an Allowed Claim
since the prior Distribution Date, to the holder of such Allowed Claim or the
relevant Paying Agent, as the case may be. Any Distributions held in the
Disputed Claims Reserve for the benefit of a holder of a Disputed Claim which is
subsequently Disallowed, in whole or part, shall be distributed, on the next
succeeding Distribution Date, to the holders of Allowed Claims (including the
Disputed Claims Reserve) in accordance with the terms of the Plan as if such
amounts had been distributed on the Effective Date.
(e) THRESHOLD DISTRIBUTIONS. Notwithstanding anything to the
contrary in the Plan, no Distribution shall be made on a Distribution Date, if
the Disbursing Agent determines in its reasonable discretion that the Available
Cash is insufficient to make any Distributions on such date.
(f) LATE CLAIMS. Except as otherwise expressly provided in the Plan,
any Claim not deemed filed pursuant to section 1111(a) of the Bankruptcy Code or
timely Filed pursuant to the Bankruptcy Code, Bankruptcy Rules or any applicable
order of the Court, shall (i) not be treated as an Allowed Claim; and (ii) be
expunged from the Claims register in the Chapter 11 Cases without need for any
further notice, motion, objection or order.
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Section 7.03 MISCELLANEOUS DISTRIBUTION PROVISIONS.
(a) METHOD OF CASH DISTRIBUTIONS. Cash payments made pursuant to the
Plan shall be in United States Dollars by checks drawn on a domestic bank
selected by the applicable Disbursing Agent or by wire transfer from a domestic
bank, at the option of Asset LLC.
(b) ACCRUAL OF POSTPETITION INTEREST. Unless otherwise provided for
in the Plan, including with respect to the Allowed Revolving Lender Claim, no
holder of a pre-petition Allowed Claim shall be entitled to the accrual of
interest on account of such Claim.
(c) NO DISTRIBUTION PENDING ALLOWANCE. Notwithstanding any other
provision of the Plan, no Cash or other property shall be distributed under the
Plan on account of any Disputed Claim, unless and until such Claim becomes an
Allowed Claim. No Distribution or payment shall be made in contravention of
Section 502(d) of the Bankruptcy Code, or to any holder of an Allowed General
Unsecured Claim who is also a potential defendant in an avoidance action under
chapter 5 of the Bankruptcy Code. Notwithstanding this section, a Distribution
to such potential defendant shall not constitute a waiver of any rights of
UniCapital, the other Debtors, the Reorganized Debtors, Asset LLC or Litigation
LLC, as the case may be. For purposes of the Plan, such Distribution or payment
on account of such Allowed General Unsecured Claim shall be held in the Disputed
Claims Reserve as if it were a Disputed Claim.
(d) NO DISTRIBUTION IN EXCESS OF ALLOWED AMOUNT OF CLAIM.
Notwithstanding anything to the contrary herein, no holder of an Allowed Claim
shall receive in respect of such Claim any Distribution (of a value set forth
herein or in the Disclosure Statement) in excess of the Allowed amount of such
Claim.
(e) CLAIMANT ADDRESSES. For purposes of delivering Distributions,
the Disbursing Agent may rely on the addresses for holders of Allowed Claims as
set forth in the Schedules unless superseded by the addresses for such holders
set forth in the proofs of Claim Filed by such holders or such other written
notices of change of address that the Disbursing Agent may receive. In the event
that any Distribution to any holder is returned as undeliverable, the Disbursing
Agent shall use reasonable efforts to determine the current address of such
holder, but no Distribution to such holder shall be made unless and until the
Disbursing Agent has determined the then current address of such holder, at
which time such Distribution shall be made to such holder without interest. If
no correct address can be determined, the Distribution intended for such holder
shall be deemed Unclaimed Property and treated pursuant to Section 7.06 of the
Plan.
Section 7.04 DE MINIMIS DISTRIBUTIONS. Notwithstanding Section
7.02(e) of the Plan, if the amount of Cash to be distributed to the holder of an
Allowed Claim is less than $25, the applicable Disbursing Agent may hold the
Cash Distributions to be made to such holder until the aggregate amount of Cash
to be distributed to such holder is in an amount equal to or greater than $25 if
such Disbursing Agent determines that the cost to distribute such Cash is
unreasonable in light of the amount of Cash to be
42
distributed. Notwithstanding the preceding sentence, if the amount of Cash
Distribution to such holder never aggregates to more than $25, then on the final
Distribution Date, the applicable Disbursing Agent may distribute such Cash to
the holder entitled thereto.
Section 7.05 SETOFFS AND COUNTERCLAIMS. The applicable Disbursing
Agent is authorized, with the consent of the Agent in its sole discretion, to
assert and prosecute any counterclaims, setoff rights and similar rights and
defenses of the Debtors or the Reorganized Debtors in connection with the
resolution of any Disputed Claim, and to set off against any Allowed Claim and
the Distributions to be made on account of such Allowed Claim, the claims,
rights and Causes of Action of any nature that the Debtors, the Reorganized
Debtors, Asset LLC or Litigation LLC 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
applicable Disbursing Agent or by the Debtors, the Reorganized Debtors, Asset
LLC or Litigation LLC of any such claims, rights and Causes of Action that they
may possess against such holder. In the event that UniCapital, in connection
with the resolution of any Disputed Claim, elects, with the consent of the Agent
in its sole discretion, to assert any counterclaims, setoff rights and similar
rights and defenses that are Causes of Action held by either Litigation LLC or a
Reorganized Debtor, then Litigation LLC or such Reorganized Debtor, as
applicable, shall cooperate with and assist UniCapital in the resolution of such
Disputed Claim and shall, at the request of UniCapital, join as a party to any
adversary proceeding or contested matter regarding such Disputed Claim;
PROVIDED, that if the resolution of Disputed Claim results in any Net Proceeds
on account of such Cause of Action, such Net Proceeds shall be remitted to Asset
LLC and distributed under the Plan.
Section 7.06 UNCLAIMED PROPERTY.
(a) ESCROW OF UNCLAIMED PROPERTY. Unclaimed Property (and all
interest, dividends, and other distributions thereon) shall be delivered
promptly to the applicable Disbursing Agent by each Paying Agent. Such
Disbursing Agent shall deposit such Unclaimed Property in trust (for the benefit
of the holders of Allowed Claims entitled thereto under the terms of the Plan)
in a subaccount of such Disbursing Agent. For a period of one year following the
relevant Distribution Date, Unclaimed Property, including any interest,
dividends, and other Distributions thereon shall be: (i) held in such subaccount
solely for the benefit of the holders of Allowed Claims that have failed to
claim such property; and (ii) released from such subaccount and delivered to the
holder of an Allowed Claim upon presentation of proper proof by such holder of
its entitlement thereto. The applicable Disbursing Agent shall pay, or cause to
be paid, out of the funds held by such Disbursing Agent, including, without
limitation, the subaccount, any tax imposed by any federal, state or local
taxing authority on the income generated by the funds held in such subaccount.
The applicable Disbursing Agent shall also file, or cause to be filed any tax or
information return related to such subaccounts. All Cash held in each such
subaccount shall be invested in accordance with section 345 of the Bankruptcy
Code, as modified by the relevant orders of the Court for investments made by
the Debtors during the Chapter 11 Cases. The earnings on such investments shall
be held in trust as an addition to the balance of the subaccount for the benefit
of the holders of
43
Allowed Claims entitled to such Unclaimed Property, and shall not constitute
property of the applicable Disbursing Agent, the Reorganized Debtors, Asset LLC
or Litigation LLC.
(b) DISTRIBUTION OF UNCLAIMED PROPERTY. At the end of one year
following the relevant Distribution Date of Cash, the holders of Allowed Claims
theretofore entitled to Unclaimed Property shall cease to be entitled thereto
(such holders, the "Unclaimed Holders"), and the Unclaimed Property for each
Unclaimed Holder shall then be distributed to the holders of Allowed Claims in
the same Class as such Unclaimed Holder (including the Disputed Claims Reserve
for such Class) in accordance with the terms of the Plan.
Section 7.07 EXEMPTION FROM TRANSFER TAXES. Pursuant to section
1146(c) of the Bankruptcy Code, the assignment or surrender of any lease or
sublease, or the delivery, making, filing, or recording of any deed or other
instrument of transfer, or the issuance, transfer, or exchange of any security,
including, without limitation, all of the transactions described in Article VI
of the Plan (including, but not limited to, any transfers of Assets to
UniCapital, Asset LLC or Litigation LLC or transfers of Membership Interests to
Newco) and all transfers of Assets to the Disputed Claims Reserve, under, in
furtherance of, or in connection with the Plan, whether arising prior or
subsequent to the Effective Date, including any deeds, bills of sale or
assignments executed in connection with any disposition of assets contemplated
by the Plan, shall not be subject to any stamp, real estate transfer, mortgage,
recording or other similar tax.
Section 7.08 DISPUTED PAYMENTS. If any dispute arises as to the
identity of a holder of an Allowed Claim which is to receive any Distribution,
the applicable Disbursing Agent or the relevant Paying Agent may, in lieu of
making such Distribution to such Person, make such Distribution into an escrow
account to be held in trust for the benefit of such holder and which shall not
constitute property of the applicable Disbursing Agent, the Reorganized Debtors,
Asset LLC or Litigation LLC. Such Distribution shall be held in escrow until the
disposition thereof shall be determined by order of the Bankruptcy Court or
other court of competent jurisdiction or by written agreement among the
interested parties to such dispute.
Section 7.09 WITHHOLDING TAXES. In connection with the Plan, to the
extent applicable, the applicable Disbursing Agent shall comply with all
withholding and reporting requirements imposed on it by federal, state and local
taxing authorities, and all Distributions shall be subject to such withholding
and reporting requirements.
Section 7.10 OBLIGATIONS INCURRED AFTER THE CONFIRMATION Date.
Payment obligations incurred after the date and time of entry of the
Confirmation Order, including, without limitation, the fees and expenses of
Professionals, shall not be subject to application or proof of claim and may be
paid by the Debtors (prior to the Effective Date) or UniCapital (after the
Effective Date), as the case may be, in the ordinary course of business and
without further Bankruptcy Court approval.
Section 7.11 OBLIGATIONS WITH RESPECT TO DISTRIBUTIONS. All
Distributions hereunder shall be made by the applicable Disbursing Agent. In
44
furtherance of the foregoing, each of the Reorganized Debtors and Litigation LLC
shall be required to remit all Net Proceeds in their possession or control to
Asset LLC or an agent designated by Asset LLC, as soon as practicable after
their receipt of such Net Proceeds, after reserving reasonable and necessary
amounts for those expenses which may be withheld from Cash proceeds as described
in the definition of "Net Proceeds" herein.
Section 7.12 PAYMENT OF LESSEE TAX PAYMENTS TO STATE GOVERNMENTAL
AUTHORITIES. Each Reorganized Debtor shall directly or through its agent,
consistent with past practices, collect, remit and turn over Lessee Tax Payments
to the applicable State Governmental Authority as and when such amounts are
actually received by the applicable Reorganized Debtor or its agent. Such
payments shall be the exclusive treatment under the Plan of Priority Tax Claims
owed to State Governmental Authorities that relate to Equipment Leases; PROVIDED
that in the event that any State Governmental Authority issues an assessment or
charge against the Reorganized Debtors or UniCapital with respect to any tax
liability based upon or related to an Equipment Lease, that was or should have
been collected or reported by any entity for the period prior to the Effective
Date (including any tax that should have been collected, reported and remitted
in full at lease inception or otherwise), then any Claim with respect to such
tax liability (including interest and penalties) shall be automatically subject
to the treatment set forth in Bankruptcy Code section 1129(a)(9)(C) and Section
4.02 of the Plan and shall be funded solely and exclusively from Lessee Tax
Payments. Notwithstanding such automatic treatment, the Reorganized Debtors and
UniCapital reserve the right to contest any such assessment, charge or claim as
being null and void and in violation of the discharge and injunction provisions
set forth in the Plan. Other than the obligations to remit Lessee Tax Payments
as set forth in this paragraph, notwithstanding anything in the Plan that may
suggest the contrary, in no event shall NewCo, Asset LLC, the Reorganized
Debtors or any of their respective officers, directors, employees, agents,
successors, or assigns have any liability, responsibility or obligation for any
amount that otherwise may or should have been collected, reported, remitted and
paid by a Debtor or any entity relative to the Assets with respect to or based
upon any tax, assessment, levy, charge or similar amount (including any amount
that was accelerated or due in full upon lease inception) or any interest or
penalty thereon, to any State Governmental Authority for the period prior to the
Effective Date, and UniCapital shall indemnify and hold Asset LLC, Litigation
LLC and the Reorganized Debtors harmless from and against any claims for such
amounts (the "Tax Indemnity").
Section 7.13 TURNOVER OF EXCLUDED AMOUNTS.
(a) TURNOVER TO PFSC. Unless otherwise instructed by Asset LLC or
its agent, any Person other than the Reorganized Debtors or PFSC that receives
Lessee Tax Payments or other Excluded Amounts, whether received before or after
the Effective Date, shall remit all such amounts to PFSC no later than five (5)
Business Days after receipt. On behalf of UniCapital and the Reorganized
Debtors, PFSC shall pay all Lessee Tax Payments and other Excluded Amounts it
receives to the parties owed such amounts. Any such payments of Lessee Tax
Payments shall be made in accordance with the provisions of Section 7.12 of the
Plan.
45
(b) REIMBURSEMENT OF ADVANCED AMOUNTS. If payments received from
Equipment Lessees for Excluded Amounts are insufficient to pay all Excluded
Amounts related to Equipment Leases, then the Debtors (prior to the Effective
Date) or the Reorganized Debtors (i) may, with the consent of the Agent (but
shall be under no obligation to) advance such Excluded Amounts on behalf of the
applicable Equipment Lessees, and (ii) may, upon notice to PFSC and with the
consent of the Agent, either (I) require PFSC to return such amounts to the
Debtors or Reorganized Debtors, as applicable, when ultimately paid by the
applicable Equipment Lessees or, if not paid, when liquidation proceeds are
realized from the equipment related to such Equipment Leases, or (II) apply to
the Court for other remedies to recover such advanced amounts.
(c) TAX-EXEMPT EQUIPMENT LEASES. If Lessee Tax Payments received
from Equipment Lessees are insufficient to pay taxes related to Equipment Leases
as a result of the inability of the Debtors (prior to the Effective Date) or the
Reorganized Debtors to reconcile the tax exempt status of such Equipment
Lessees, then the Debtors (with the consent of the Agent, if exercised prior to
the Effective Date) or the Reorganized Debtors may, upon notice to PFSC and with
the consent of the Agent, either (i) require PFSC to collect past due taxes or
proper exemption certification from the applicable Equipment Lessees, including
by commencing remedial actions against such Equipment Lessees in order to
collect the taxes owed from the Equipment Lessees themselves, through the resale
of the equipment or otherwise, or (ii) apply to the Court for other remedies to
enforce the collection of such taxes. All amounts received by PFSC with respect
to such taxes shall be paid to the applicable State Governmental Authorities in
accordance with Section 7.12 of the Plan.
Section 7.14 DELEGATION BY DISBURSING AGENT. Either Disbursing Agent
may assign and delegate any of its duties or obligations under the Plan to such
officers, employees, agents and subcontractors as are selected by such
Disbursing Agent in its reasonable discretion, but in all events shall remain
primarily liable for all of its duties and obligations under the Plan.
ARTICLE VIII.
POOLING OF THE DEBTORS AND THE SUBSIDIARIES SOLELY
FOR PURPOSES OF VOTING AND DISTRIBUTIONS
Section 8.01 POOLING OF ASSETS AND LIABILITIES. Solely for the
limited purpose of Plan voting and the administrative convenience of identifying
and making Distributions under the Plan and as part of the Compromise and
Settlement, all liabilities of the Debtors shall be pooled and aggregated and
holders of Allowed Claims shall share in all Assets of the Debtors as provided
in the Plan. On the Effective Date (i) all Intercompany Claims by and among the
Debtors shall be transferred to Litigation LLC pursuant to the transfer of
Causes of Action under Article VI, (ii) all guarantees of the Debtors of the
obligations of any other Debtor shall be eliminated so that any claim against
any Debtor and any guarantee thereof executed by any other Debtor and any joint
or several liability of any of the Debtors will be deemed to be one obligation
of the consolidated Debtors, (iii) holders of Intercompany Claims shall receive
no distributions
46
under the Plan on account of such Claims, (iv) each and every Claim filed or to
be filed in the Chapter 11 Case of any of the Debtors shall be deemed filed
against the consolidated Debtors, and shall be deemed one Claim against and
obligation of the consolidated Debtors, (v) all claims based upon guarantees or
assurances of collection, payment or performance of any obligation of the
Debtors made by any Subsidiary and all claims against any such Subsidiary for
which any of the Debtors are jointly or severally liable or for which any of the
Debtors have provided guarantees or assurances of collection, payment or
performance of any obligation of such Subsidiary, in each case which arise at
any time prior to the Confirmation Date, shall be discharged, released,
extinguished and of no further force and effect, and (vi) other than with
respect to holders of Allowed Claims in Classes 1, 2 and 3, all holders of
Claims shall be deemed to have released, discharged and waived any Claim against
the Reorganized Debtors and such holders' sole recourse shall be payment
received on account of their respective Allowed Claims by UniCapital under the
terms of the Plan. Such pooling and aggregation shall not (other than for
purposes related to the Plan) affect (i) the legal and corporate structures of
the Reorganized Debtors, or (ii) the Equity Interests of (x) UniCapital in any
Subsidiaries (as in effect immediately prior to the transfer of such Equity
Interests to Asset LLC) or (y) the Reorganized Debtors in any Subsidiaries, or
(iii) the transactions contemplated in Article VI of the Plan, or (iv) the
retention of all right, title and interest by all Reorganized Debtors in their
respective Assets (other than those transferred pursuant to Article VI of the
Plan), or (v) the enforceability, priority or Allowance of any Claim in Classes
1, 2 or 3 under the Plan, or (vi) the retention, priority or Allowance of any
Lien held by Creditors in Classes 1, 2 and 3 (provided that, as to Classes 2 and
3, such holders' Claim shall be deemed non-recourse as to the Reorganized
Debtors, Asset LLC, Litigation LLC, and Newco except as to any responsibilities
of Asset LLC as the Disbursing Agent for such Classes under the Plan).
ARTICLE IX.
EFFECT OF THE PLAN ON CLAIMS AND INTERESTS
Section 9.01 JURISDICTION OF COURT. Until the Effective Date, the
Court shall retain jurisdiction over the Debtors and their Estates. Thereafter,
jurisdiction of the Court shall be limited to the subject matters set forth in
Article XIII of the Plan.
Section 9.02 BINDING EFFECT. Except as otherwise provided in section
1141(d) of the Bankruptcy Code, on and after the Confirmation Date, the
provisions of the Plan shall bind any holder of a Claim against, or Equity
Interest in, the Debtors and their respective successors and assigns, whether or
not the Claim or Equity Interest of such holder is impaired under the Plan and
whether or not such holder has accepted the Plan.
Section 9.03 TERM OF INJUNCTIONS OR STAYS. Unless otherwise provided
herein, all injunctions or stays provided for in the Chapter 11 Cases pursuant
to sections 105 or 362 of the Bankruptcy Code, or otherwise, and in existence on
the Confirmation Date, shall remain in full force and effect until the later of:
(1) the Final Claims Resolution Date and (2) the Effective Date.
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Section 9.04 RIGHTS OF ACTION
(a) On the Effective Date, pursuant to Section 1123(b)(3) of the
Bankruptcy Code, Litigation LLC shall, after the transactions contemplated in
Article VI of the Plan, have possession and control of the Causes of Action
(other than the Lease Collection Actions and Seller Tax Indemnities), D&O Claims
and D&O Insurance, and shall, pursuant to the Plan, retain and have the right to
enforce any and all present or future rights, claims or Causes of Action (other
than Lease Collection Actions and Seller Tax Indemnities), but including with
respect to D&O Claims and D&O Insurance, against any Person and with respect to
any rights of the Debtors that arose before or after the Petition Date. All
present or future rights, claims or Causes of Action (other than Lease
Collection Actions and Seller Tax Indemnities) against any Person that existed
prior to the Effective Date are preserved and are transferred to Litigation LLC
pursuant to the transactions contemplated in Article VI of the Plan, including,
without limitation, such claims, rights or Causes of Action (other than Lease
Collection Actions and Seller Tax Indemnities) identified in the Disclosure
Statement. Litigation LLC shall be deemed the Estates' representative in
accordance with Section 1123 of the Bankruptcy Code and shall have all the
powers of a trustee under sections 704, 724 and 1106 of the Bankruptcy Code. In
addition, the applicable Disbursing Agent shall (i) hold and administer the
Disputed Claims Reserve, (ii) object to, settle or otherwise resolve Disputed
Claims, (iii) make Distributions to holders of Disputed Claims that subsequently
become Allowed Claims in accordance with the Plan, and (iv) distribute any
remaining assets of the Disputed Claims Reserve, after resolving all Disputed
Claims, to holders of Allowed Claims in accordance with the Plan. Subject to the
requirements of the Plan, Litigation LLC may pursue, abandon, settle or release
any or all such claims, rights or Causes of Action (other than Lease Collection
Actions and Seller Tax Indemnities, but including with respect to D&O Claims and
D&O Insurance), as it deems appropriate. In pursuing any claim, right or Cause
of Action, Litigation LLC, as the representative of the Estates, shall be
entitled to the extensions provided under section 108 of the Bankruptcy Code.
Notwithstanding the foregoing provisions of this Section 9.04(a), UniCapital may
assert Causes of Actions as setoffs or counterclaims to the extent provided in
Section 7.05 of the Plan.
(b) From and after the Effective Date, no entity other than
Litigation LLC (after the transactions contemplated in Article VI of the Plan)
shall have authority to assert, prosecute, settle or enforce any judgment
entered in respect of any of the Causes of Action (other than Lease Collection
Actions and Seller Tax Indemnities), notwithstanding that prior to the Petition
Date an entity may or could have asserted such claim or Causes of Action.
Litigation LLC shall retain TS&S and Deloitte Consulting, the Committee's
financial advisor, from and after the Effective Date to resolve and prosecute
all Permitted Avoidance Actions. The Reorganized Debtors shall continue to have
authority to assert, prosecute, settle or enforce any judgment entered in
respect of any of the Lease Collection Actions. Notwithstanding the foregoing
provisions of this Section 9.04(b), UniCapital may assert Causes of Actions as
setoffs or counterclaims to the extent provided in Section 7.05 of the Plan, and
shall have the authority to assert, prosecute, settle or enforce any judgment
entered in respect of any of the Seller Tax Indemnities.
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Section 9.05 REVESTING OF ASSETS. Except as otherwise provided in
the Plan (including with respect to the retention of Liens by the holders of
Claims in Classes 1, 2 and 3), on the Effective Date all property comprising the
Estate of each Debtor (other than UniCapital) shall revest in the relevant
Reorganized Debtor free and clear of all Claims, liens, charges, encumbrances
and Interests of creditors and equity security holders (other than as expressly
provided herein), and all Assets and Membership Interests transferred to
UniCapital, Asset LLC, Litigation LLC and Newco pursuant to the transactions
provided in Article VI of the Plan shall be vested in UniCapital, Asset LLC,
Litigation LLC and Newco, respectively, free and clear of all Claims, liens,
charges, encumbrances and Interests of creditors and equity security holders
(other than as expressly provided herein). As of the Effective Date, each
Reorganized Debtor may operate its business and use, acquire and dispose of
property and settle and compromise claims or interests without supervision of
the Bankruptcy Court free of any restrictions of the Bankruptcy Code or
Bankruptcy Rules, other than those restrictions expressly imposed by the Plan
and the Confirmation Order. As of the Effective Date, all Classes and holders of
Claims shall be deemed to have amended any and all contracts, documents and
instruments with respect to such Claims to conform and incorporate the terms of
the Plan, and all Claims in Classes 2 and 3 shall be deemed non-recourse as to
the Reorganized Debtors, Asset LLC, Litigation LLC and Newco except as to any
responsibilities of Asset LLC as the Disbursing Agent for such Classes under the
Plan.
Section 9.06 DISCHARGE.
(a) SCOPE. Except as otherwise provided in the Plan or Confirmation
Order (including the assumption of the Newco Assumed Debt by Newco under Section
6.01(d) of the Plan and the guarantee of the Allowing Revolving Lender Claims by
the Reorganized Debtors under Section 5.01(e) of the Plan) and subject to
section 1141(d)(1) of the Bankruptcy Code, when the Confirmation Order becomes a
Final Order, the Plan and the Confirmation Order shall discharge, effective as
of the Effective Date, all debts of, Claims against, Liens on, and Interests in
each of the Debtors, their assets, or properties, which debts, Claims, Liens,
and Interests arose at any time before the entry of the Confirmation Order. The
discharge of the Debtors shall be effective as to each debt, Claim, Lien or
Interest, regardless of whether a proof of Claim or proof of Interest therefore
was filed, whether the Claim is an Allowed Claim, or whether the holder thereof
votes to accept the Plan. On the Effective Date, as to every discharged debt,
Claim, Lien and Interest, any holder of such debt, Claim, Lien or Interest shall
be precluded from asserting against any Debtor formerly obligated with respect
to such debt, Claim, Lien or Interest, or against such Debtor's assets or
properties, any other or further debt, Claim, Lien or Interest based upon any
document, instrument, act, omission, transaction, or other activity of any kind
or nature that occurred before the Confirmation Date.
(b) EXCLUSIVE TREATMENT. Notwithstanding any provision, term,
representation, warranty, covenant or undertaking in any pre-petition agreement
with the holder of a Claim to the contrary, the treatment of Allowed Claims
under the Plan shall be in full and final settlement and satisfaction of such
Claims and shall be the sole relief and remedy with respect to such Allowed
Claims and with respect to any documents,
49
instruments and agreements underlying such Claims and any rights and remedies
related thereto. The holders of Allowed Claims shall receive no other
Distributions or other treatment with respect to any rights or remedies under or
related to such documents, instruments and agreements, and shall have no
recourse as to UniCapital, the Reorganized Debtors, Asset LLC, Litigation LLC or
Newco or their respective properties as to any such rights or remedies, except
as otherwise expressly set forth in the Plan. Under no circumstance shall
UniCapital, Asset LLC, Litigation LLC, Newco or any of the Reorganized Debtors
have any remaining obligations under such documents, instruments and agreements,
nor any liability or responsibility for any breach of any representation,
warranty, covenant or agreement contained therein.
(c) INJUNCTION. Except as otherwise provided in the Plan or
Confirmation Order, as of the Effective Date, all entities that hold a debt,
Claim, Lien or Interest that is discharged pursuant to Section 9.06 of the Plan
or an Interest or other right of an equity security holder that is terminated
pursuant to the terms of the Plan, are permanently enjoined from taking any of
the following actions on account of any such discharged Claims or terminated
Interests or rights: (1) commencing or continuing in any manner any action or
other proceeding against the Debtors, UniCapital, the Reorganized Debtors, Asset
LLC, Litigation LLC, the Administrative Claims Reserve, the Priority Claims
Reserve or the Disputed Claims Reserves or their respective Assets or other
property; (2) enforcing, attaching, collecting or recovering in any manner any
judgment, award, decree or order against the Debtors, UniCapital, the
Reorganized Debtors, Asset LLC, Litigation LLC, the Administrative Claims
Reserve, the Priority Claims Reserve or the Disputed Claims Reserves or their
respective Assets or other property; (3) creating, perfecting or enforcing any
Lien or encumbrance against the Debtors, UniCapital, the Reorganized Debtors,
Asset LLC, Litigation LLC, the Administrative Claims Reserve, the Priority
Claims Reserve or the Disputed Claims Reserves or their respective Assets or
other property; (4) asserting a setoff, right of subrogation or recoupment of
any kind against any obligation due to the Debtors, UniCapital, the Reorganized
Debtors, Asset LLC, Litigation LLC, the Administrative Claims Reserve, the
Priority Claims Reserve or the Disputed Claims Reserves or their respective
Assets or other property; and (5) commencing or continuing any action that does
not comply with or is inconsistent with the Plan.
(d) CAUSE OF ACTION INJUNCTION. On and after the Effective Date, (a)
all Persons other than Litigation LLC will be permanently enjoined from
commencing or continuing in any manner any action or proceeding (whether
directly, indirectly, derivatively or otherwise) on account of, or respecting
any, Claim, debt, right or Cause of Action that Litigation LLC retains sole and
exclusive authority to pursue, in accordance with the Plan and the Operating
Agreement of Litigation LLC, and (b) all Persons other than Litigation LLC will
be permanently enjoined from commencing or continuing in any manner any action
or proceeding (whether directly, indirectly, derivatively or otherwise) on
account of or respecting any Causes of Action (other than Lease Collection
Actions and Seller Tax Indemnities); PROVIDED, that UniCapital shall be
authorized to assert and prosecute Causes of Action as counterclaims or setoff
rights to the extent provided in Section 7.05 of the Plan, and to assert,
prosecute, settle or enforce any judgment entered in respect of any of the
Seller Tax Indemnities.
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Section 9.07 EXCULPATION AND LIMITATION OF LIABILITY.
(a) ACTIONS RELATED TO CHAPTER 11 CASES. Except as otherwise
specifically provided in the Plan, the Debtors, the Committee, the members of
the Committee in their respective capacity, the Agent, the Lenders, any of such
parties' respective affiliates, members, officers, directors, employees,
advisors, attorneys, representatives, financial advisors, investment bankers or
agents (other than sales agents or brokers), and any of such parties' or such
Persons' affiliates, successors and assigns, shall not have or incur any
liability to any Person or entity for any action taken or omitted to be taken in
connection with or related to (i) the formulation, preparation, dissemination,
implementation, confirmation, or consummation of the Plan, the Disclosure
Statement, or any contract, release or other agreement or document created or
entered into or any other action taken or omitted to be taken in connection with
the Plan, or (ii) actions taken or omitted to be taken in connection with the
Chapter 11 Cases or the operations or administration of the Debtors and their
Subsidiaries during the Chapter 11 Cases, and are hereby released from, any
claim, obligation, Cause of Action or liability to one another or to any holder
of a Claim or Interest, or any other party in interest, or any of their
respective agents, employees, representatives, financial advisors, attorneys or
affiliates, or any of such parties' or such Persons' respective affiliates,
successors or assigns, for any act or omission in connection with, relating to
or arising out of the Debtor's Chapter 11 Cases, the administration of the
Debtors and their Subsidiaries during the Chapter 11 Cases, the pursuit of
confirmation of the Plan, the Disclosure Statement, the consummation of the
Plan, the administration of the Plan or the property to be distributed under the
Plan, except for their gross negligence or willful misconduct as found by a
court of competent jurisdiction by a Final Order or final, non-appealable
judgment, and in all respects shall be entitled to reasonably rely upon the
advice of counsel with respect to their duties and responsibilities under the
Plan.
(b) NO RIGHT OF ACTION REGARDING CHAPTER 11 CASES. Notwithstanding
any other provision of the Plan, no holder of a Claim or Interest, or other
party in interest, none of their respective agents, employees, representatives,
financial advisors, attorneys or affiliates, and no affiliates, successors or
assigns of the foregoing, shall have any right of action against the Debtors,
the Committee, the members of the Committee in their representative capacity,
the Agent, the Lenders, or any of such parties' respective present or former
members, officers, directors, employees, advisors, attorneys, representatives,
financial advisors, investment bankers or agents or such parties' or such
Persons' affiliates, successors and assigns, for any act or omission in
connection with, relating to or arising out of the Chapter 11 Cases, the
administration of the Debtors and their Subsidiaries during the Chapter 11
Cases, the pursuit of confirmation of the Plan, the Disclosure Statement, the
consummation of the Plan, the administration of the Plan or the property to be
distributed under the Plan, except for their gross negligence or willful
misconduct as found by a court of competent jurisdiction by a Final Order or
final, non-appealable judgment.
Section 9.08 RELEASE BY DEBTORS. Pursuant to section 1123(b)(3) of
the Bankruptcy Code, effective as of the Effective Date, the Debtors, in their
individual capacities and as debtors-in-possession, for and on behalf of the
Estates, shall release and
51
discharge: (i) the Agent, (ii) the Lenders, (iii) Portland, (iv) the TAA
Parties, (v) the respective officers, directors, agents, employees,
professionals and attorneys of the Persons set forth in the foregoing items (i)
through (iv), and (vi) directors and officers of the Debtors and their
Subsidiaries who served as directors or officers of the Debtors or their
Subsidiaries during the Chapter 11 Cases (each of the Persons described in
subsections (i), (ii), (iii), (iv), (v) and (vi) a "Released Person") for and
from any and all claims or Causes of Action existing as of the Effective Date in
any manner arising from, based on or relating to, in whole or in part, the
subject matter of, or the transactions or events giving rise to, any Claim or
Interest that is treated in the Plan, the business or contractual arrangements
between any Debtor or any Released Person, the restructuring of Claims and
Interests prior to or in the Chapter 11 Cases, the Portland Transaction, the
TAA, or any act, omission, occurrence or event in any manner related to the
Debtors or their Estates or any such Claims, Interest, restructuring or the
Chapter 11 Cases.
Section 9.09 RELEASE BY HOLDERS OF CLAIMS OR INTERESTS. Subject to
the assumption of the Newco Assumed Debt under Section 6.01(d) of the Plan and
the guarantee and assumption of the Allowed Revolving Lender Claims by the
Reorganized Debtors under Section 5.01(e) of the Plan, as of the Effective Date,
and as an integral part of the Compromise and Settlement and the treatment of
Claims under the Plan, each Person that has held, holds or may hold a Claim or
Interest or at any time was a creditor or stockholder of any of the Debtors,
whether such Person received or released any property under the Plan or voted to
accept or reject the Plan, will be deemed to forever release, waive and
discharge all Claims, suits, judgments, damages, demands, debts, rights, causes
of action, liabilities, rights of contribution and rights of indemnification,
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 a Debtor or the Plan that such holder or
Person has, had or may have against the Agent, Bank of America, the Bank
Investors, the TAA Parties, the Lenders, Newco, Asset LLC, Litigation LLC,
Portland, PFSC and each of their respective present or former directors,
officers, employees, attorneys, accountants, underwriters, investment bankers,
affiliates, financial advisors and agents, acting in such capacity, and against
each of the agents (other than sales agents or brokers), employees, officers and
directors of the Debtors and their affiliates and Subsidiaries who has served as
an agent, employee, officer or director of a Debtor or a Subsidiary or affiliate
of a Debtor during the Chapter 11 Cases.
Section 9.10 INJUNCTION RELATED TO RELEASES. As further provided in
Section 9.06 of the Plan, the Confirmation Order will permanently enjoin the
commencement or prosecution by any Person or entity, whether directly,
derivately or otherwise, of any claims (as such term is defined in Section
101(5) of the Bankruptcy Code), obligations, suits, judgments, damages, demands,
debts, rights, causes of actions or liabilities released pursuant to the Plan.
Section 9.11 SECTION 1145 EXEMPTION. Pursuant to section 1145(a) of
the Bankruptcy Code, the offer, issuance, transfer or exchange of any security
under the Plan, or the making or delivery of an offering memorandum or other
instrument of offer
52
or transfer under the 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.
Section 9.12 PRESERVATION OF INSURANCE. The provisions of the Plan
shall not diminish or impair in any manner the enforceability and coverage of
any insurance policies that may cover Claims against the Debtors or any other
Person including, without limitation, the D&O Insurance. As provided in the
Confirmation Order, the Court has found that with respect to the D&O Claims, the
D&O Insurance and any other insurance which may cover the D&O Claims, there is
no identity of interest between the Debtors, the Reorganized Debtors, Asset LLC
and Litigation LLC, on the one hand, and the former directors and officers of
the Debtors who did not serve in such capacity during the Chapter 11 Cases, on
the other hand, and that such D&O Claims are valuable assets of the Estates, and
therefore any "insured v. insured" or similar exclusions in the D&O Insurance or
such other insurance which may cover D&O Claims do not apply to the D&O Claims
and shall be unenforceable with respect to the D&O Claims.
ARTICLE X.
EXECUTORY CONTRACTS
Section 10.01 EXECUTORY CONTRACTS AND UNEXPIRED LEASES. As of the
Effective Date, subject to Section 9.09 of the Plan, all executory contracts and
unexpired leases of each Debtor shall be deemed rejected by such Debtor pursuant
to the provisions of section 365 of the Bankruptcy Code, except: (a) the P&C
Agreement; (b) the Servicing Agreements; (c) any of the Equipment Leases which
are executory contracts; (d) any officer employment agreement described in
Section 6.02(b) of the Plan; (e) any executory contract or unexpired lease that
has been or is the subject of a motion, stipulation or agreed order to assume or
assume and assign Filed pursuant to section 365 of the Bankruptcy Code by any of
the Debtors before the Effective Date; (f) any executory contract or unexpired
lease listed in the "Schedule of Assumed and Assigned Executory Contracts and
Unexpired Leases" in the Supplemental Appendix to be Filed by the Debtors; (g)
any executory contract or unexpired lease assumed or assumed and assigned
pursuant to the provisions of the Plan, including any included in the Assets
transferred pursuant to the transactions described in Article VI of the Plan;
and (h) any agreement, obligation, security interest, transaction or similar
undertaking that the relevant Debtor believes is not executory or is not a
lease, and which is later determined by the Court to be an executory contract or
unexpired lease that is subject to assumption or rejection under section 365 of
the Bankruptcy Code. The assumption of the executory contracts and unexpired
leases described in subsections (a) through (g) of this paragraph shall be
deemed assumed by the respective Debtors holding such contracts and leases as of
the Effective Date, without further action on the part of such Debtors, the
Bankruptcy Court or any other Person and without the necessity of providing
notice of such assumption to the other parties to such contracts and leases.
Section 10.02 CURE. At the election of the relevant Debtor (prior to
the Effective Date) or Asset LLC (after the Effective Date), any monetary
defaults under
53
each executory contract and unexpired lease to be assumed under the Plan shall
be satisfied pursuant to section 365(b)(1) of the Bankruptcy Code, in one of the
following ways: (a) by payment of the default amount in Cash on the Effective
Date or as soon as practicable after the relevant Debtor (prior to the Effective
Date) or Asset LLC (after the Effective Date) receives notice of such monetary
defaults; or (b) on such other terms as agreed to by the parties to such
executory contract or unexpired lease. In the event of a dispute regarding: (i)
the amount of any cure payments; (ii) the ability of the Debtor that is a party
thereto to provide adequate assurance of future performance under the contract
or lease to be assumed; or (iii) any other matter pertaining to assumption, then
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
assumption.
Section 10.03 REJECTION DAMAGES BAR DATE. If the rejection by any
Debtor, pursuant to the Plan or otherwise, of an executory contract or unexpired
lease, results in a Claim, then such Claim shall be forever barred and shall not
be enforceable against such Debtor any successor to the Debtor or the properties
of either of them unless a proof of Claim is filed with the clerk of the
Bankruptcy Court and served upon counsel to the Debtors on or before the earlier
of (i) the later of the applicable Bar Date or within thirty (30) days after the
date of service of notice of entry of an order of the Court authorizing such
rejection, including the Confirmation Order, (ii) thirty (30) days after such
rejection becomes effective if such rejection occurred by reason of expiration
of a time period fixed by the Bankruptcy Court, or (iii) such other period set
by the Bankruptcy Court.
Section 10.04 EXECUTORY CONTRACTS AND UNEXPIRED LEASES ENTERED INTO
AND OTHER OBLIGATIONS INCURRED AFTER THE PETITION DATE. Executory contracts and
unexpired leases entered into and other obligations incurred after the Petition
Date by any Debtor shall be performed by the Reorganized Debtors or Asset LLC,
as the case may be. Accordingly, such executory contracts, unexpired leases and
other obligations shall survive and remain unaffected by entry of the
Confirmation Order.
ARTICLE XI.
CONDITIONS TO CONFIRMATION
AND OCCURRENCE OF EFFECTIVE DATE
Section 11.01 CONDITIONS TO CONFIRMATION. The Plan may not be
confirmed unless each of the conditions set forth below is satisfied. Except as
provided in Section 11.03 of the Plan, any one or more of the following
conditions may be waived at any time by the Debtors, with the consent of the
Agent.
(a) The Disclosure Statement Order shall have been entered and shall
have become a Final Order.
(b) The Confirmation Order shall be in a form reasonably
acceptable to the Debtors and the Agent.
54
(c) The Compromise and Settlement and all other provisions embodied
in the Plan shall not have been modified, altered or changed in any respect.
(d) The Portland Transaction shall be in full force and effect and
shall not at any time be subject to any challenge.
(e) The Debtors shall have complied with their obligations and
agreements set forth in the Cash Collateral Orders and the Budgets annexed
thereto.
(f) The TAA Subsidiaries (i) shall not have filed a voluntary
petition or petitions seeking bankruptcy protection under the Bankruptcy Code or
similar state insolvency laws, and (ii) an order or orders for relief (or such
similar relief as provided for under applicable state law) shall not have been
entered or granted with respect to such entities in respect of any insolvency
petition(s) for relief under the Bankruptcy Code or similar state insolvency
laws.
(g) Priority Claims (Allowed and Disputed) as of the date of the
Confirmation Hearing shall not be greater than an amount acceptable to the Agent
and the Requisite Lenders.
(h) An Administrative Expense Budget shall have been delivered and
acceptable to the Agent in its sole discretion.
(i) The Confirmation Hearing shall have occurred no later than
January 14, 2002, or such later date agreed to by the Agent in its sole
discretion.
Section 11.02 CONDITIONS TO OCCURRENCE OF EFFECTIVE DATE. The
Effective Date for the Plan may not occur unless each of the conditions set
forth below is satisfied. Except as provided in Section 11.03 below, any one or
more of the following conditions may be waived at any time by the Debtors, with
the consent of the Agent.
(a) The Confirmation Order shall have been entered and shall have
become a Final Order.
(b) The Debtors shall have (i) on or by the Consummation Date,
assumed, to the extent executory, and otherwise ratified and accepted: (x) the
P&C Agreement; and (y) the Servicing Agreements; and (ii) complied with all of
their respective material obligations, duties and covenants set forth in such
agreements through the Consummation Date.
(c) Priority Claims (Allowed and Disputed) shall not be greater than
an amount acceptable to the Agent and the Requisite Lenders.
(d) An Administrative Expense Budget shall have been delivered and
acceptable to the Agent in its sole discretion.
(e) The Effective Date shall have occurred no later than January 26,
2002, or such later date agreed to by the Agent in its sole discretion.
55
Section 11.03 WAIVER OF CONDITIONS TO CONFIRMATION AND OCCURRENCE OF
EFFECTIVE DATE. Each of the conditions to confirmation of the Plan or to the
occurrence of the Effective Date is for the benefit of the Debtors. Other than
the requirement that the Disclosure Statement Order and the Confirmation Order
must be entered, the requirement that a particular condition be satisfied may be
waived in whole or part by the Debtors, with the consent of the Agent
ARTICLE XII.
CONFIRMABILITY AND SEVERABILITY
OF THE PLAN AND CRAMDOWN
Section 12.01 CONFIRMABILITY AND SEVERABILITY OF A PLAN. The
Debtors, with the consent of the Agent, reserve the right to alter, amend,
modify, revoke or withdraw the Plan. The Debtors, with the consent of the Agent,
reserve the right to make non-substantive changes in the Plan. Each provision of
the Plan shall be considered separable and, if for any reason any provision or
provisions herein are determined to be invalid and contrary to any existing or
future law, the balance of the Plan shall be given effect without relation to
the invalid provision.
Section 12.02 CRAMDOWN. The Debtors shall request the Bankruptcy
Court to confirm in accordance with section 1129(b) of the Bankruptcy Code as to
Classes 6, 7 and 8 and reserve the right to confirm the Plan in accordance with
section 1129(b) of the Bankruptcy Code with respect to any Class that rejects
the Plan.
ARTICLE XIII.
ADMINISTRATIVE PROVISIONS
Section 13.01 RETENTION OF JURISDICTION. Notwithstanding
confirmation of the Plan or occurrence of the Effective Date, the Court shall
retain jurisdiction for all purposes permitted under applicable law, including,
without limitation, the following purposes:
(a) Determination of the allowability of Claims upon objection to
such Claims by the Debtors (prior to the Effective Date), UniCapital (after the
Effective Date, with respect to all Claims other than Classes 1, 2 or 3), or
Asset LLC (after the Effective Date, with respect to Classes 2 and 3), and the
validity, extent, priority and nonavoidability of consensual and nonconsensual
Liens and other encumbrances;
(b) Determination of tax liability pursuant to section 505 of
the Bankruptcy Code;
(c) Approval, pursuant to section 365 of the Bankruptcy Code, of all
matters related to the assumption, assumption and assignment, or rejection of
any executory contract or unexpired lease of any of the Debtors;
56
(d) Determination of requests for payment of administrative expenses
entitled to priority under section 507(a)(1) of the Bankruptcy Code, including
compensation of parties entitled thereto under section 330 of the Bankruptcy
Code;
(e) Resolution of controversies and disputes regarding the
interpretation of the Plan;
(f) Implementation of the provisions of the Plan and entry of orders
in aid of confirmation and consummation of the Plan, including, without
limitation, appropriate orders protecting the Debtors, their successors and
Estates from actions by creditors and/or Interest holders of the Debtors or any
of them, ensuring Distributions to holders of Allowed Claims, resolving disputes
and controversies regarding property of the Estates or the Disputed Claims
Reserves, and ensuring the recovery and turnover of Assets of the Estates and
the payment of Priority Tax Claims, including the enforcement of contractual,
subrogation or other rights of the Estates to recover or collect Lessee Tax
Payments and other Excluded Amounts from any third parties holding same;
(g) Modification of the Plan pursuant to section 1127 of the
Bankruptcy Code;
(h) Issuance of orders, if appropriate, as requested by UniCapital,
the Reorganized Debtors, Asset LLC or Litigation LLC under, and subject to, the
provisions of Bankruptcy Rule 2004;
(i) Adjudication of any Causes of Action (other than Lease
Collection Actions and Seller Tax Indemnities) by Litigation LLC, including, but
not limited to, the D&O Claims, and by UniCapital to the extent authorized by
Section 7.05 of the Plan;
(j) All matters, controversies and disputes relating to the
discharge, injunctions and releases granted under the Plan and the Bankruptcy
Code;
(k) Entry of a Final Order closing the Chapter 11 Cases.
Section 13.02 GOVERNING LAW. Except to the extent the Bankruptcy
Code, Bankruptcy Rules, or other federal laws apply and except for Secured
Claims that have been Reinstated and corporate rights and obligations governed
by the laws of other jurisdictions, the rights and obligations arising under the
Plan shall be governed by the laws of the State of New York, without giving
effect to principles of conflicts of law.
Section 13.03 ADMINISTRATIVE BAR DATE.
(a) GENERAL PROVISIONS. Except as provided below in Section 13.03(b)
for Administrative Claims of Professionals requesting compensation or
reimbursement of expenses and in Section 13.03(c) for liabilities incurred by a
Debtor in the ordinary course of its business, requests for payment of
Administrative Claims must be Filed no later than 30 days after notice of entry
of the Confirmation Order. Holders of Administrative Claims who are required to
File a request for payment of such Claims and who do not File such requests by
the applicable Bar Date, shall be forever barred from
57
asserting such Claims against the Debtors, UniCapital, the Reorganized Debtors,
Asset LLC or Litigation LLC, the Administrative Claims Reserve, the Priority
Claims Reserves, the Disputed Claims Reserves, or their respective property.
(b) PROFESSIONALS. All Professionals requesting Professional Fees
pursuant to sections 327, 328, 330, 331, 503(b) and 1103 of the Bankruptcy Code
for services rendered before the Confirmation Date shall File an application for
final allowance of Professional Fees no later than 45 days after the
Confirmation Date or such later date as may be ordered by the Court. Objections
to applications of such Professionals for Professional Fees must be Filed no
later than 75 days after the Confirmation Date or such later date as may be
ordered by the Court. All Professional Fees allowed by the Bankruptcy Court
shall be paid to the applicable Professional immediately thereafter. Each such
Professional that intends to seek payment for Professional Fees from the Debtors
shall provide the Debtors with a statement, by no later than the Confirmation
Date or such later date as may be ordered by the Court, of the amount of
estimated unpaid Professional Fees that each such Professional has incurred or
expects to incur through the Confirmation Date. The Debtors (prior to the
Effective Date) or UniCapital (after the Effective Date), as the case may be,
shall establish a reserve in an appropriate amount for the payment of any such
unpaid Professional Fees, which shall be included in calculating the
Administrative Claims Reserve.
(c) ORDINARY COURSE LIABILITIES. Holders of Administrative Claims
based on liabilities incurred from and after July 31, 2001 by a Debtor in the
ordinary course of business (other than Professional Fees) shall not be required
to File any request for payment of such Claims, and such Administrative Claims
shall be deemed Allowed (unless expressly Disallowed by Final Order). Such
Administrative Claims shall be assumed and paid by the Reorganized Debtors,
Asset LLC or Litigation LLC pursuant to the terms and conditions of the
particular transaction giving rise to such Administrative Claim, without any
further action by the holders of such Claims or the Court. Liabilities of
UniCapital, the Reorganized Debtors, Asset LLC or Litigation LLC incurred from
and after the Effective Date, including professional fees, may be paid without
Court order; PROVIDED, that the liabilities of UniCapital shall conform to the
Administrative Expense Budget, unless otherwise permitted by Court order.
Section 13.04 PRESERVATION OF AVOIDED TRANSFERS. In accordance with
section 551 of the Bankruptcy Code, any transfer avoided under section 522, 544,
545, 547, 548, 549 or 724(a) of the Bankruptcy Code, or any lien void under
section 506(d) of the Bankruptcy Code, is preserved for the benefit of the
Estate but only with respect to property of the Estate.
Section 13.05 ABILITY TO ENFORCE CERTAIN PROVISIONS OF CHAPTER 7.
The Plan preserves, recognizes and specifically grants to UniCapital, the
Reorganized Debtors, Asset LLC or Litigation LLC, as the case may be, the rights
and remedies available to a chapter 7 trustee under 11 U.S.C. ss.ss. 724 and 726
to disallow, subordinate or expunge any claim or lien filed against the Debtors
or their assets. Nothing herein shall affect, limit or modify the Compromise and
Settlement.
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Section 13.06 PAYMENT OF STATUTORY FEES. All fees payable pursuant
to section 1930 of title 28 of the United States Code, as determined by the
Court on the Confirmation Date, shall be paid on the Effective Date. Any
statutory fees accruing after the Confirmation Date shall be paid in accordance
with Article IV of the Plan.
Section 13.07 CORPORATE ACTION. Each of the matters provided for
under the Plan involving the corporate structure of any Debtor, UniCapital, the
Reorganized Debtor, Asset LLC or Litigation LLC or corporate action to be taken
by or required of any Debtor, UniCapital, any of the Reorganized Debtors, Asset
LLC or Litigation LLC shall, as of the Effective Date, be deemed to have
occurred and be effective as provided herein, and shall be authorized and
approved in all respects without any requirement of further action by
stockholders or directors (or members, managers, general partners or similar
governing Persons, as applicable) of any of the Debtors, UniCapital, the
Reorganized Debtors, Asset LLC or Litigation LLC.
Section 13.08 EFFECTUATING DOCUMENTS AND FURTHER Transactions. Each
of the Debtors, UniCapital, the Reorganized Debtors, Asset LLC and Litigation
LLC shall be authorized to execute, deliver, file, or record such documents,
contracts, instruments, releases, and other agreements and take such other
action as may be necessary to effectuate and further evidence the terms and
conditions of the Plan.
Section 13.09 AMENDMENTS.
(a) PRECONFIRMATION AMENDMENT. The Debtors, with the consent of the
Agent, may modify the Plan at any time prior to the entry of the Confirmation
Order provided that the Plan, as modified, and the Disclosure Statement
pertaining thereto meet applicable Bankruptcy Code requirements of Section 1125,
among others.
(b) POST-CONFIRMATION AMENDMENT NOT REQUIRING RESOLICITATION. After
the entry of the Confirmation Order, the Debtors, UniCapital, the Reorganized
Debtors, Asset LLC or Litigation LLC may modify the Plan, with the consent of
the Agent, to remedy any defect or omission or to reconcile any inconsistencies
in the Plan or in the Confirmation Order, as may be necessary to carry out the
purposes and effects of the Plan, provided that: (i) the Debtors, Reorganized
Debtors, Asset LLC or Litigation LLC obtain approval of the Bankruptcy Court for
such modification, after notice and a hearing; and (ii) such modification shall
not materially and adversely affect the interests, rights, treatment, or
Distributions of any Class under the Plan.
(c) POST-CONFIRMATION AMENDMENT REQUIRING RESOLICITATION. After the
Confirmation Date and before the Effective Date of the Plan, the Debtors may
modify the Plan, with the consent of the Agent, in a way that materially and
adversely affects the interests, rights, treatment, or Distributions of a Class
of Claims or Interests provided that: (i) the Plan, as modified, meets
applicable Bankruptcy Code requirements; (ii) the Debtors obtain Bankruptcy
Court approval for such modification, after notice and a hearing; (iii) such
modification is accepted by at least two-thirds in amount, and more than
one-half in number, of Allowed Claims voting in each Class affected by such
59
modification; and (iv) the Debtors comply with section 1125 of the Bankruptcy
Code with respect to the Plan as modified.
Section 13.10 SUCCESSORS AND ASSIGNS. The rights, benefits, and
obligations of any Person named or referred to in the Plan shall be binding
upon, and shall inure to the benefit of, the heir, executor, administrator,
successor or assign of such Person.
Section 13.11 CONFIRMATION ORDER AND PLAN CONTROL. To the extent the
Confirmation Order and/or the Plan is inconsistent with the Disclosure
Statement, any other agreement entered into between or among any Debtor(s), or
any of them and any third party, the Plan controls the Disclosure Statement and
any such agreements and the Confirmation Order (and any other orders of the
Court) controls the Plan.
Section 13.12 HEADINGS. Headings are used in the Plan for
convenience and reference only, and shall not constitute a part of the Plan
for any other purpose.
Section 13.13 REPORTS BY ASSET LLC. Asset LLC shall monthly provide
to UniCapital written status reports of the revenues and expenses of Asset LLC
and any other significant transactions affecting distributions to holders of
Allowed Class 5 Claims.
Section 13.14 NOTICES. Any notice required or permitted to be
provided under the Plan shall be in writing and served by either (a) certified
mail, return receipt requested, postage prepaid, (b) hand delivery or (c)
overnight or same-day delivery service, freight prepaid, and addressed as
follows:
FOR THE DEBTORS
UniCapital Corporation
20801 Biscayne Boulevard, Suite 403
Miami, Florida 33180
Tel: (305) 931-2388
Fax: (305) 931-8611
Attn: E. Talbot Briddell
60
with copies to:
Greenberg Traurig, LLP
Attorneys for the Debtors
200 Park Avenue
New York, New York 10166
Tel: (212) 801-9200
Fax: (212) 801-6400
Attn: Richard S. Miller, Esq.
Howard Berman, Esq.
FOR THE AGENT AND THE LENDERS
Clifford Chance Rogers & Wells
200 Park Avenue
New York, New York 10166
Tel: (212) 878-8000
Fax: (212) 878-8375
Attn: Margot Schonholtz, Esq.
Stephen Quine, Esq.
FOR THE COMMITTEE
Togut, Segal & Segal LLP
One Penn Plaza, Suite 3335
New York, NY 10119
Tel: (212) 594-5000
Fax: (212) 967-4258
Attn: Albert Togut, Esq.
Neil Berger, Esq.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
61
Dated: New York, New York
November 16, 2001
Respectfully Submitted,
JACOM COMPUTER SERVICES, INC., UNICAPITAL
CORPORATION, ET AL.
Debtors and Debtors-in-Possession
By: /s/ E. Talbot Briddell
----------------------------------
E. Talbot Briddell
Chief Executive Officer and
Chairman of the Board of Directors
20801 Biscayne Boulevard, Suite 403
Miami, Florida 33180
Tel: (305) 931-2388
ANNEX A
IN RE JACOM COMPUTER SERVICES, INC.
UNICAPITAL CORPORATION, ET AL.,
CASE NO. 00-42719 (CB) (JOINTLY ADMINISTERED)
LIST OF DEBTORS
CASE NUMBER COMPANY NUMBER
00-42719 Jacom Computer Services, Inc.
00-42720 UniCapital Corporation
00-42721 VRL-UCP, Inc. f/k/a Varilease
Corporation
00-42722 American Capital Resources, Inc.
00-42723 Walden Asset Group, Inc. The
00-42724 Merrimac Financial Associates, Inc.
00-42725 KLC-UCP, Inc. f/k/a K.L.C., Inc.
00-42726 HLC Financial, Inc.
00-42727 UniCapital Aircraft Engine Group,
Inc.
00-42728 BSB-UCP, Inc. f/k/a/ The Myerson
Companies, Inc.
00-42729 UniCapital Rail Group, Inc.
00-42730 UniCapital Technology Corporation
00-42731 Praxis Paradigm Synergies, Inc.
00-42732 Skywatch Registered Agents, Inc.
00-42733 UniCapital Mexico Group, Inc.
00-42734 UniCapital Mexico Holdings, LLC
00-42735 SFC Capital Group Corporation
00-42736 SFC-UCP, Inc. f/k/a Saddleback
Financial Corporation
00-42737 Boulder Capital Group, Inc.
00-42738 Boulder Capital Mortgage Corporation
00-42739 Boulder Capital of New York, Inc.
00-42740 UniCapital Funding Corporation
00-42741 Lease Advisor.com, LLC
00-42742 Varilease Capital Corporation
00-42743 Information Control Systems, Inc.
00-42744 SLC International Trading
Corporation
00-42745 American Video Games and Computers,
Inc.
00-42746 MFC-UCP, Inc. f/k/a Matrix Funding
Corporation
00-42747 Matrix Credit Corporation
00-42748 Matcan, Leasing, Inc.
00-42749 NSJ Group, Inc., The
00-42750 Aircorp II, Inc.
00-42751 B&A Leasing Corporation
00-42752 Sonic Leasing Corporation
1
CASE NUMBER COMPANY NUMBER
00-42753 Aircraft 48009, Inc.
00-42754 NSJ Support Inc.
00-42755 Aircraft 49104, Inc.
00-42756 NSJ-DOA, Inc.
00-42757 Aircraft 22120, Inc.
00-42758 Aircraft 22122, Inc.
00-42759 Diamond Head Associates LLC
00-42760 Avalon Leasing Corporation
00-42761 Bionic Leasing Corporation
00-42762 Aircraft 48008, Inc.
00-42763 Galaxy Aircraft Corporation
00-42764 Aircraft 23230, Inc.
00-42765 Aircraft 23895, Inc.
00-42766 Aircraft 22121, Inc.
00-42767 CL Aircraft VIII, Inc.
00-42768 CL Aircraft XXXIV, Inc.
00-42769 Aircraft 46941, Inc.
00-42770 Aircraft 49632, Inc.
00-42771 SWR Aircraft Group, Inc.
00-42772 SWR 767, Inc.
00-42773 SWR Brazil 767, Inc.
00-42774 CLA Canada, Inc.
00-42775 CLC 747, Inc.
00-42776 CLC Engine Leasing, Inc.
00-42777 Jetz, Inc.
00-42778 UniCapital Air Group, Inc.
00-42779 CLA Holdings, Inc.
00-42780 Cauff, Lippman Aviation, Inc.
00-42781 UCP German Holdings, Inc.
00-42782 Aircraft 11111, Inc.
00-42783 Aircraft 23830, Inc.
00-42784 Aircraft 23922, Inc.
00-42785 Aircraft 46095, Inc.
00-42786 Aircraft 23623, Inc.
00-42787 Aircraft 21955, Inc.
00-42788 Stuie II Corporation
00-42789 Aircraft 45775, Inc.
00-42790 Aircraft 23345, Inc.
00-42791 Aircraft 369, Inc.
00-42792 Aircraft 23119, Inc.
00-42793 Aircraft 23377, Inc.
00-42794 Aircraft 24209, Inc.
00-42795 Aircraft 373, Inc.
00-42796 Aircraft 49368, Inc.
00-42797 Aircraft 22055, Inc.
00-42798 Stuie III Corporation
00-42799 Aircraft 23772, Inc.
2
CASE NUMBER COMPANY NUMBER
00-42800 Aircraft 23771, Inc.
00-42801 Aircraft 53623, Inc.
00-42802 Aircraft 25221, Inc.
00-42803 Aircraft 24837, Inc.
00-42804 Aircraft 20624 and 20626, Inc.
00-42805 Aircraft 22620, Inc.
00-42806 CLA-DOA, Inc.
00-42807 Aircraft 24355, Inc.
00-42808 Aircraft 25262, Inc.
00-42809 Aircraft 53624, Inc.
00-42810 Aircraft 20622, Inc.
00-42811 Aircraft 53015, Inc.
00-42812 Aircraft 347, Inc.
00-42813 Aircraft 20627, Inc.
00-42814 Aircraft 23506, Inc.
00-42815 Aircraft 20527, Inc.
00-42816 Aircraft 24356, Inc.
00-42817 Aircraft 22222, Inc.
00-42818 Aircraft 23118, Inc.
00-42819 UCP Warehouse Holdings, Inc.
00-42820 CLA Enterprises, Inc.
00-42821 JJ Leasing, Inc.
00-42822 Jumbo Jet, Inc.
00-42823 Jumbo Jet Leasing, LP
00-42824 CL Aircraft Marketing, Inc.
00-42825 Aircraft 22688, Inc.
00-42826 Aircraft 23983, Inc.
00-42827 Aircraft 22689, Inc.
00-42828 Aircraft 24176, Inc.
00-42829 Aircraft 23928, Inc.
00-42830 Aircraft 24451, Inc.
00-42831 Aircraft 23929, Inc.
00-42832 Aircraft 24497, Inc.
00-42833 Aircraft 20527 Trust
00-42834 UCP Engines Trust
00-42835 Aircraft 22067 Trust
00-42836 UCP Engines, Inc.
00-42837 Aircraft 24474, Inc.
01-11617 Aircraft 23651, Inc.
3