EXHIBIT 2.1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA
- --------------------------------------------------
IN RE: CHAPTER 11 CASE NO.
03-3470-ALL THROUGH
LEAP WIRELESS INTERNATIONAL, INC., 03-3535-ALL
CRICKET COMMUNICATIONS, INC., et al., (JOINTLY ADMINISTERED)
DEBTORS.
- --------------------------------------------------
THIRD AMENDED JOINT PLAN OF REORGANIZATION, AS MODIFIED,
DATED AS OF JULY 18, 2003
NO DISCLOSURE STATEMENT HAS BEEN APPROVED WITH RESPECT TO THIS
PLAN, AND NO VOTES MAY BE SOLICITED ABSENT SUCH APPROVAL
LATHAM & WATKINS
Michael S. Lurey
Robert A. Klyman
Eric D. Brown
633 West Fifth Street, Suite 4000
Los Angeles, California 90071
(213) 485-1234
Counsel for Debtors and
Debtors-in-Possession
Dated: July 18, 2003
ARTICLE I. INTRODUCTION.......................................................................................... 1
ARTICLE II. DEFINITION OF TERMS AND RULES OF INTERPRETATION...................................................... 4
Section 2.01 Definition of Terms................................................................. 4
Section 2.02 Interpretation And Computation Of Time.............................................. 24
ARTICLE III. CLASSIFICATION OF CLAIMS AND INTERESTS.............................................................. 25
Section 3.01 Unclassified Claims (Applicable to All Debtors)..................................... 40
Section 3.02 Treatment of Classified Claims Against and Interests in Leap........................ 45
Section 3.03 Treatment of Classified Claims Against and Interests in CCH......................... 47
Section 3.04 Treatment of Classified Claims Against and Interests in Cricket..................... 49
Section 3.05 Treatment of Classified Claims Against and Interests in License Holding Companies
(applicable to each License Holding Company)........................................ 50
Section 3.06 Treatment of Classified Claims Against and Interests in Property Holding Companies
(applicable to each Property Holding Company)....................................... 52
Section 3.07 Treatment of Classified Claims Against and Interests in Other Subsidiaries
(applicable to each Other Subsidiary)............................................... 53
ARTICLE IV. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES................................................ 55
Section 4.01 Assumption and Cure................................................................. 55
Section 4.02 Rejection and Damages............................................................... 56
ARTICLE V. MEANS FOR EXECUTION AND IMPLEMENTATION OF THE PLAN.................................................... 56
Section 5.01 Overview of Plan Implementation..................................................... 56
Section 5.02 Distributions....................................................................... 56
Section 5.03 The Official Committee.............................................................. 58
Section 5.04 Vesting Of Assets................................................................... 58
Section 5.05 Preservation Of Causes Of Action.................................................... 58
Section 5.06 Amended Debtor Bylaws And Certificates of Incorporation............................. 60
Section 5.07 Composition of Management and the Directors of the Reorganized Debtors.............. 60
Section 5.08 Disbursing Agents................................................................... 61
Section 5.09 Discharge of Reorganized Debtors and Injunction..................................... 61
Section 5.10 No Liability for Solicitation or Participation...................................... 62
Section 5.11 Limitation of Liability............................................................. 63
Section 5.12 Objections to Claims................................................................ 63
Section 5.13 Other Documents and Actions......................................................... 65
Section 5.14 Corporate Action.................................................................... 65
Section 5.15 Retiree Benefits.................................................................... 65
Section 5.16 Employee Benefits................................................................... 65
Section 5.17 Certain Provisions In Respect of the Old Leap Notes, and the Old Indenture Trustee.. 66
ARTICLE VI. CONFIRMATION AND EFFECTIVE DATE CONDITIONS........................................................... 67
Section 6.01 Conditions To Confirmation.......................................................... 67
Section 6.02 Conditions To Initial Distribution Date............................................. 67
Section 6.03 Conditions To Effective Date........................................................ 67
Section 6.04 Waiver of Conditions................................................................ 68
Section 6.05 Effect of Failure of Conditions..................................................... 68
Section 6.06 Order Denying Confirmation.......................................................... 69
ARTICLE VII. CONFIRMABILITY OF PLAN AND CRAMDOWN................................................................. 69
ARTICLE VIII. PROVISIONS REGARDING VOTING AND DISTRIBUTIONS UNDER THE PLAN AND TREATMENT OF DISPUTED, CONTINGENT
AND UNLIQUIDATED CLAIMS AND INTERESTS.............................................................. 69
Section 8.01 Voting of Claims and Interests...................................................... 69
Section 8.02 Method of Distributions Under the Plan.............................................. 69
Section 8.03 Special Procedures for Lost, Stolen, Mutilated or Destroyed Instruments............. 72
Section 8.04 Undeliverable or Unclaimed Distributions............................................ 72
Section 8.05 Disputed Claims; Reserve and Estimations............................................ 72
Section 8.06 Setoffs............................................................................. 74
ARTICLE IX. IMPLEMENTATION AND EFFECT OF CONFIRMATION OF THIS PLAN............................................... 75
Section 9.01 Effect of Confirmation of the Plan.................................................. 75
ARTICLE X. RETENTION OF JURISDICTION............................................................................. 75
ARTICLE XI. MISCELLANEOUS PROVISIONS............................................................................. 76
Section 11.01 Exemption From Transfer Taxes....................................................... 76
Section 11.02 Payment of Statutory Fees........................................................... 77
Section 11.03 Modification or Withdrawal of the Plan.............................................. 77
Section 11.04 Governing Law....................................................................... 77
Section 11.05 Filing or Execution of Additional Documents......................................... 77
Section 11.06 Withholding and Reporting Requirements.............................................. 77
Section 11.07 Waiver of Rule 62(a) of the Federal Rules of Civil Procedure........................ 77
Section 11.08 Headings............................................................................ 78
Section 11.09 Exhibits and Schedules.............................................................. 78
Section 11.10 Notices............................................................................. 78
Section 11.11 Plan Supplement..................................................................... 78
Section 11.12 Conflict............................................................................ 78
Section 11.13 Successors and Assigns.............................................................. 78
Section 11.14 Saturday, Sunday or Legal Holiday................................................... 79
Section 11.15 Post-Effective Date Effect of Evidences of Claims or Interests...................... 79
Section 11.16 Severability of Plan Provisions..................................................... 79
Section 11.17 Balloting........................................................................... 79
Section 11.18 No Admissions or Waiver of Objections............................................... 79
Section 11.19 Survival of Settlements............................................................. 80
ii
ARTICLE I.
INTRODUCTION
Leap Wireless International, Inc. ("Leap"), its indirect
wholly-owned subsidiary Cricket Communications, Inc. ("Cricket") and their
respective 64 subsidiaries and/or affiliates(1) (collectively, the "Debtors")
hereby propose the following Third Amended Joint Plan of Reorganization, as
modified (defined herein as the "Plan") for the resolution of their outstanding
Claims and Interests. Reference is made to the Disclosure Statement Accompanying
Third Amended Joint Plan of Reorganization, as modified, dated as of July 18,
2003 (defined herein as the "Disclosure Statement") for a discussion of the
Debtors' history, businesses, properties and results of operations, and for a
summary of the Plan and certain related matters. Capitalized terms not defined
in this Introduction shall have the meanings ascribed to them in Article II
hereof.
- ----------
(1) Cricket Communications Holdings, Inc., a Delaware corporation;
Backwire.com, Inc., a Delaware corporation; Telephone Entertainment
Network, Inc., a Delaware corporation; Chasetel Licensee Corporation, a
Delaware corporation; Cricket Licensee (Albany), Inc., a Delaware
corporation; Cricket Licensee (Columbus), Inc., a Delaware corporation;
Cricket Licensee (Denver), Inc., a Delaware corporation; Cricket Licensee
(Lakeland), Inc., a Delaware corporation; Cricket Licensee (Macon), Inc.,
a Delaware corporation; Cricket Licensee (North Carolina), Inc., a
Delaware Corporation; Cricket Licensee (Pittsburgh), Inc., a Delaware
corporation; Cricket Licensee (Reauction), Inc., a Delaware corporation;
Cricket Licensee I, Inc., a Delaware corporation; Cricket Licensee II,
Inc., a Delaware corporation; Cricket Licensee III, Inc., a Delaware
corporation; Cricket Licensee IV, Inc., a Delaware corporation; Cricket
Licensee V, Inc., a Delaware corporation; Cricket Licensee VI, Inc., a
Delaware corporation; Cricket Licensee VII, Inc., a Delaware corporation;
Cricket Licensee VIII, Inc., a Delaware corporation; Cricket Licensee IX,
Inc., a Delaware corporation; Cricket Licensee X, Inc., a Delaware
corporation; Cricket Licensee XI, Inc., a Delaware corporation; Cricket
Licensee XII, Inc., a Delaware corporation; Cricket Licensee XIII, Inc., a
Delaware corporation; Cricket Licensee XIV, Inc., a Delaware corporation;
Cricket Licensee XV, Inc., a Delaware corporation; Cricket Licensee XVI,
Inc., a Delaware corporation; Cricket Licensee XVII, Inc., a Delaware
corporation; Cricket Licensee XVIII, Inc., a Delaware corporation; Cricket
Licensee XIX, Inc., a Delaware corporation; Cricket Licensee XX, Inc., a
Delaware corporation; Cricket Holdings Dayton, Inc., a Delaware
corporation; MCG PCS Licensee Corporation, Inc., a Delaware corporation;
Chasetel Real Estate Company, Inc., a Tennessee corporation; Cricket
Alabama Property Company, a Delaware corporation; Cricket Arizona Property
Company, a Delaware corporation; Cricket Arkansas Property Company, a
Delaware corporation; Cricket California Property Company, a Delaware
corporation; Cricket Colorado Property Company, a Delaware corporation;
Cricket Florida Property Company, a Delaware corporation; Cricket Georgia
Property Company, inc., a Delaware corporation; Cricket Idaho Property
Company, a Delaware corporation; Cricket Illinois Property Company, a
Delaware corporation; Cricket Indiana Property Company, a Delaware
corporation; Cricket Kansas Property Company, a Delaware corporation;
Cricket Kentucky Property Company, a Delaware corporation; Cricket
Michigan Property Company, a Delaware corporation; Cricket Minnesota
Property Company, a Delaware corporation; Cricket Mississippi Property
Company, a Delaware corporation; Cricket Nebraska Property Company, a
Delaware corporation; Cricket Nevada Property Company, a Delaware
corporation; Cricket New Mexico Property Company, a Delaware corporation;
Cricket New York Property Company, Inc., a Delaware corporation; Cricket
North Carolina Property Company, a Delaware corporation; Cricket Ohio
Property Company, a Delaware corporation; Cricket Oklahoma Property
Company, a Delaware corporation; Cricket Oregon Property Company, a
Delaware corporation; Cricket Pennsylvania Property Company, a Delaware
corporation; Cricket Texas Property Company, a Delaware corporation;
Cricket Utah Property Company, a Delaware corporation; Cricket Washington
Property Company, a Delaware corporation; Cricket Wisconsin Property
Company, a Delaware corporation; Leap PCS Mexico, Inc., a California
corporation.
The Plan represents a global settlement of all Intercompany
Claims and Litigation Claims between the Debtors, the Holders of Old Vendor Debt
(in their capacity as such Holders) and Holders of Leap General Unsecured Claims
(in their capacity as such Holders), and is the product of months of
investigation and negotiations among the foregoing parties (and the Leap
Informal Noteholder Committee prior to the appointment of the Leap Official
Committee of Unsecured Creditors). As a result of the foregoing settlement, the
Debtors have been able to file the Plan - which provides for the preservation of
the Debtors as viable going-concern businesses - and expect to confirm the
Chapter 11 Cases on an expedited timetable. On the other hand, without the
settlement memorialized in the Plan (and described in greater detail in the
Disclosure Statement), the Chapter 11 Cases could deteriorate into free-fall
chapter 11 cases and Holders of Allowed Claims and Interests would receive
distributions (if any) only after the conclusion of lengthy and expensive
complex litigation. Those distributions, moreover, would be reduced
substantially due to the likely deterioration of the value of the Debtors during
prolonged Chapter 11 Cases and the millions of dollars in legal and expert fees
which would be incurred to litigate the Intercompany Claims and Litigation
Claims.
In sum, the Plan provides for a reorganization of the Debtors
under Reorganized Leap. However, Reorganized Leap will not retain the Leap
General Unsecured Claim Cash Distribution or the assets being transferred to the
Leap Creditor Trust, or be subject to any claims against or Interests in Leap
that are being discharged under the Plan. Specifically, the means of executing
and implementing the Plan are as follows:
On the Effective Date, (i) the Old License Holding Company
Common Stock will be cancelled and each Reorganized License Holding Company will
issue to Reorganized Leap 100% of the issued and outstanding shares of New
License Holding Company Common Stock, (ii) the Old Other Subsidiary Common Stock
will be cancelled and each Reorganized Other Subsidiary will issue to
Reorganized Leap 100% of the issued and outstanding shares of New Other
Subsidiary Common Stock, and (iii) the Old Property Holding Company Common Stock
will be cancelled and each Reorganized Property Holding Company will issue to
Reorganized Cricket 100% of the issued and outstanding shares of New Property
Holding Company Common Stock.
Also on the Effective Date, (i) the Old Leap Common Stock will
be cancelled, (ii) Reorganized Leap will issue and contribute 96.5% of the
issued and outstanding shares of New Leap Common Stock to CCH, (iii) Reorganized
Leap will contribute all of the New License Holding Company Common Stock to CCH,
and (iv) CCH will contribute all of such New Leap Common Stock and New License
Company Common Stock to Reorganized Cricket. Following such contributions, on
the Effective Date, CCH will be merged with and into Cricket Communications,
Inc. in a "tax-free" reorganization in compliance with Section 368(a)(1)(G) of
the Internal Revenue Code, pursuant to which the Old CCH Common Stock will be
converted into 100% of the issued and outstanding shares of New Cricket Common
Stock. As a result, Reorganized Leap will own 100% of the issued and outstanding
shares of Reorganized Cricket and each of the Reorganized Other Subsidiaries,
and Reorganized Cricket will own 100% of the issued and outstanding shares of
each of the Reorganized License Holding Companies, 100% of the issued and
outstanding shares of each of the Reorganized Property Holding Companies and,
temporarily until the distribution thereof to the Holders of Old Vendor Debt
Claims, 96.5% of the New Leap Common Stock.
2
On the Effective Date, or as soon thereafter as practicable,
the Holders of Old Vendor Debt Claims will receive from Cricket, on a Pro Rata
basis, 96.5% of the issued and outstanding shares of New Leap Common Stock and
New Senior Notes aggregating $350 million in principal amount.
On the Initial Distribution Date, and notwithstanding the
occurrence of the Effective Date: (a) Holders of Allowed Leap General Unsecured
Claims, including the Holders of Old Leap Notes, will receive, on a Pro Rata
basis, beneficial interests in the Leap Creditor Trust; (b) the Leap Creditor
Trust will receive the Leap General Unsecured Claim Cash Distribution; and (c)
Holders of Allowed 12 1/2% Senior Secured Claims will receive, on a Pro Rata
basis, the 12 1/2% Senior Secured Claim Distribution (approximately $200,000).
In addition, on the later of the Effective Date and the
Initial Distribution Date, Reorganized Leap will issue and transfer (as
applicable) to the Leap Creditor Trust: (a) the Leap Creditor Trust Assets for
subsequent sale and Distribution of the proceeds to the Leap General Unsecured
Creditors; and (b) 3.5% of the issued and outstanding shares of New Leap Common
Stock as of the Effective Date for Distribution to the Leap General Unsecured
Creditors. Following the Effective Date, after the satisfaction of all Allowed
Administrative Claims and Allowed Priority Claims against Leap and the
resolution of all Disputed Administrative Claims and Disputed Priority Claims
against Leap, any remaining Cash held in reserve by Reorganized Leap will be
distributed to the Leap Creditor Trust. Notwithstanding anything set forth
herein, if any Leap Creditor Trust Assets are converted to Cash on or after the
Initial Distribution Date but prior to the Effective Date, the Cash proceeds
shall be transferred to the Leap Creditor Trust as soon as practicable upon such
monetization, notwithstanding the fact that the Effective Date has not occurred.
In accordance with the negotiated settlement between the Leap Informal
Noteholder Committee and the Informal Vendor Debt Committee leading to the Plan,
all other assets of Leap that are not specifically defined as Leap Creditor
Trust Assets in the Plan will not be transferred to the Leap Creditor Trust and
will remain with Reorganized Leap, including for example only, office furniture,
fixtures, equipment and supplies; Leap intellectual property, including the
"Leap" trademark; retirement plan assets; and an inter-company payable from
Cricket which is being released under the Plan.
Holders of Old Leap Common Stock will receive nothing on
account of their Interests.
THE PLAN IS THE PRODUCT OF NEGOTIATIONS AMONG THE DEBTORS, THE
INFORMAL VENDOR DEBT COMMITTEE, THE INFORMAL NOTEHOLDER COMMITTEE (PRIOR TO THE
APPOINTMENT OF THE OFFICIAL COMMITTEE) AND THE OFFICIAL COMMITTEE. THE DEBTORS
BELIEVE THE PLAN REPRESENTS THE BEST POSSIBLE RETURN TO HOLDERS OF CLAIMS AND
INTERESTS AND URGE SUCH HOLDERS TO VOTE IN FAVOR OF THE PLAN.
THE INFORMAL VENDOR DEBT COMMITTEE URGES HOLDERS OF OLD VENDOR
DEBT TO READ THE DISCLOSURE STATEMENT AND VOTE IN FAVOR OF THE PLAN.
THE OFFICIAL COMMITTEE URGES HOLDERS OF LEAP GENERAL UNSECURED
CLAIMS TO READ THE DISCLOSURE STATEMENT AND VOTE IN FAVOR OF THE PLAN.
3
ALL HOLDERS OF CLAIMS AND INTERESTS ARE ENCOURAGED TO READ THE
PLAN AND THE DISCLOSURE STATEMENT IN THEIR ENTIRETY BEFORE VOTING TO ACCEPT OR
REJECT THE PLAN. NO MATERIALS, OTHER THAN THE DISCLOSURE STATEMENT AND THE
EXHIBITS AND SCHEDULES ATTACHED THERETO OR REFERENCED THEREIN, HAVE BEEN
APPROVED BY THE DEBTORS FOR USE IN SOLICITING ACCEPTANCES OR REJECTIONS OF THE
PLAN.
Notwithstanding anything herein to the contrary, all
statements in the Plan and the accompanying Disclosure Statement concerning the
history of the Debtors' businesses, the past or present financial condition of
the Debtors, transactions to which the Debtors were or are party, or the effect
of Confirmation of the Plan on Holders of Claims and Interests are attributable
exclusively to the Debtors and not to any other party.
ARTICLE II.
DEFINITION OF TERMS AND RULES OF INTERPRETATION
SECTION 2.01 DEFINITION OF TERMS
Unless otherwise defined herein, or the context otherwise
requires, the following terms shall have the respective meanings set forth
below:
12 1/2% Senior Notes means the $225,000,000, 12 1/2%
Senior Notes due 2010 issued
pursuant to the Indenture.
12 1/2% Senior Secured Claim means the claim, secured by a Lien
on the Senior Notes Pledged Account,
asserted by the Old Indenture
Trustee for the benefit of the
Holders of the 12 1/2% Senior Notes
pursuant to the Indenture.
12 1/2% Senior Secured Claim
Distribution means the remaining amounts in the
Senior Notes Pledged Account
(approximately $200,000) that will
be distributed, on a Pro Rata basis,
for the benefit of the Holders of
the 12 1/2% Senior Secured Claims on
the Initial Distribution Date.
14 1/2% Senior Discount Notes means the $668,000,000, 14 1/2%
Senior Discount Notes due 2010
issued pursuant to the Indenture.
Additional Participants means those parties in interest who
hold Claims against the Debtors and
who were not served by U.S. mail
with the notice of the Bar Date by
the Debtors.
Administrative Claim means any right to payment
constituting a cost or expense of
administration of the Chapter 11
Cases of a kind specified under
section 503(b) and entitled to
priority under section 507(a)(1) of
the Bankruptcy Code, including,
without limitation, any actual and
necessary costs and expenses of
preserving the estates of the
Debtors, any
4
actual and necessary costs and
expenses of operating the respective
businesses of the Debtors, any
indebtedness or obligations incurred
or assumed by any of the Debtors in
Possession in connection with the
conduct of their respective
businesses, including, without
limitation, all compensation and
reimbursement of expenses to the
extent Allowed by the Court under
section 330 or 503 of the Bankruptcy
Code, any fees or charges assessed
against the estates of the Debtors
under section 1930 of chapter 123 of
Title 28 of the United States Code,
the reasonable fees and expenses of
professionals to the Informal Vendor
Debt Committee, and the reasonable
fees and expenses of professionals
to the Informal Noteholder Committee
incurred prior to the formation of
the Official Committee.
Allowed Claim or Allowed Interest means a Claim against or Interest in
a Debtor to the extent that
1. a proof of the Claim or Interest
a. was timely Filed and
served upon a Debtor and no
objection to the Claim or Interest
is Filed within the time fixed by
the Court for such objections; or
b. is deemed Filed under
applicable law (e.g., filed on the
Schedules as noncontingent,
nondisputed and liquidated) or
pursuant to a Final Order of the
Court and no objection to the Claim
or Interest is Filed within the time
fixed by the Court for such
objections; or
c. is Allowed pursuant to
subparagraph b of this definition;
or
d. is Allowed under the
Plan; or
e. is a Claim that the
Reorganized Debtors deem Allowed
after the Effective Date.
2. If a Debtor files an objection to
a proof of Claim or Interest within
a time fixed by the Court, the Claim
or Interest shall be Allowed to the
extent of
a. any amount of such
Claim or Interest to which the
Debtors did not object; or
b. any amount otherwise
authorized by Final Order or the
Plan.
5
Allowed Administrative Claim,
Allowed Priority Tax Claim, Allowed
Secured Claim and
Allowed General Unsecured Claim have correlative meanings.
Allowed Class Claim means an Allowed Claim in the
particular Class described.
Allowed Class Interest means an Allowed Interest in the
particular Class described.
Amended Debtor Certificates
of Incorporation means the amended and restated
certificates of incorporation of
each Reorganized Debtor that will be
effective on the Effective Date,
substantially in the form which will
be Filed with the Plan Supplement
and subject to modification by the
Debtors (with the consent of the
Informal Vendor Debt Committee)
prior to the Effective Date.
Amended Debtor Bylaws means the amended bylaws of each
Reorganized Debtor that will be
effective on the Effective Date,
substantially in the form which will
be Filed with the Plan Supplement
and subject to modification by the
Debtors (with the consent of the
Informal Vendor Debt Committee)
prior to the Effective Date.
Ballots means each of the ballot forms
distributed with the Disclosure
Statement to each Holder of an
Impaired Claim or Impaired Interest
(other than to Holders of Impaired
Claims and Interests deemed to have
rejected the Plan or otherwise not
entitled to vote on the Plan), upon
which is to be indicated, among
other things, acceptance or
rejection of the Plan.
Bankruptcy Code means Title 11 of the United States
Code, 11 U.S.C.Sections 101 et seq.,
as in effect on the date hereof or
hereafter amended if such amendments
are made applicable to the Chapter
11 Cases.
Bankruptcy Rules means the Federal Rules of
Bankruptcy Procedure as promulgated
by the United States Supreme Court
under section 2075 of Title 28 of
the United States Code, and local
rules of the Court, as the context
may require.
Bar Date means June 28, 2003.
Business Day means any day on which commercial
banks are open for business, and not
authorized to close, in the City of
New
6
York, New York, except any day
designated as a legal holiday in
Bankruptcy Rule 9006(a).
Cash means legal tender of the United
States of America and equivalents
thereof.
Cash Collateral Order means that certain Final Stipulated
Order (i) authorizing the use of
Cash Collateral and (ii) Granting
Replacement Liens that is pending
before the Court, together with that
Interim Order Authorizing the
Interim Use of Cash Collateral and
Granting Replacement Liens entered
on the Docket on April 14, 2003.
CCH means Cricket Communications
Holdings, Inc., a Delaware
corporation.
Chapter 11 Cases means the jointly administered
Chapter 11 cases commenced by the
Debtors on the Petition Date.
Claim means a claim, whether or not
asserted or Allowed, as defined in
section 101(5) of the Bankruptcy
Code.
Class means a class of Claims or Interests
designated pursuant to the Plan.
Clerk means the Clerk of the Court.
Collateral means any property or interest in
property of a Debtor's Estate
subject to a Lien to secure the
payment or performance of a Claim as
of the Petition Date.
Confirmation means the conclusion of the
Confirmation Hearing at which the
Plan is confirmed.
Confirmation Date means the date on which the
Confirmation Order is entered on the
Docket.
Confirmation Hearing means the hearing to consider
confirmation of the Plan pursuant to
section 1128 of the Bankruptcy Code.
Confirmation Order means the order entered by the Court
confirming the Plan pursuant to
section 1129 of the Bankruptcy Code.
Court means, (a) the United States
Bankruptcy Court for the Southern
District of California, having
jurisdiction over the Chapter 11
Cases; (b) to the extent there is no
reference pursuant to section 157 of
Title 28 of the United States Code,
the United States District Court for
the Southern District of California;
and (c) any other court having
jurisdiction over the Chapter 11
Cases.
7
Cricket means Cricket Communications, Inc.,
a Delaware corporation.
Cricket General Unsecured
Creditor Distribution means Cash or other property of a
value equal to the amount of the
chapter 7 liquidation value of any
property held by Cricket that is not
subject to the Liens of the Holders
of Old Vendor Debt (e.g., avoidance
actions) that will be distributed
to Holders of General Unsecured
Claims against Cricket, including
any Allowed deficiency Claims of the
Holders of Old Vendor Debt.
Debtors shall have the meaning ascribed to
it in Article I of the Plan.
Debtors in Possession means the Debtors in their
capacities as debtors in possession
in the Chapter 11 Cases pursuant to
sections 1107(a) and 1108 of the
Bankruptcy Code.
Disbursing Agent means a Person responsible for
making distributions under the Plan.
Reorganized Leap and Reorganized
Cricket, or such Person(s) as each
may employ in its sole discretion,
will serve as Disbursing Agent for
the Reorganized Debtors; provided
that the Leap Creditor Trust
Trustee, or such person(s) as the
Leap Creditor Trust Trustee may
employ in its sole discretion, will
serve as Disbursing Agent for the
Leap Creditor Trust.
Disclosure Statement means the written disclosure
statement, dated as of July 18,
2003, that relates to the Plan, as
approved by the Court pursuant to
section 1125 of the Bankruptcy Code,
as such disclosure statement may be
amended, modified or supplemented
from time to time.
Disputed means, with reference to any Claim
(including any Administrative
Claim), or Interest, or any portion
thereof, any Claim or Interest proof
of which was Filed and in either
case or in the case of any
Administrative Claim, Claim or
Interest that is disputed under the
Plan or as to which the Debtors or
any other party have interposed a
timely objection and/or request for
estimation in accordance with
section 502(c) of the Bankruptcy
Code and Bankruptcy Rule 3018, which
objection and/or request for
estimation has not been withdrawn or
determined by a Final Order, and any
Claim or Interest proof of which was
required to be Filed by Order of the
Court but as to which a proof of
claim or interest was not timely or
properly Filed; provided, however,
that prior to (x) the time an
objection has been filed, and (y)
the expiration of the
Claims/Interest
8
objection deadline with respect to
such Claim or Interest, unless
Allowed by the Reorganized Debtors
or the Leap Creditor Trust Trustee,
a Claim or Interest shall be
considered a Disputed Claim or
Disputed Interest to the extent that
the amount of the Claim or Interest
specified in a proof of Claim or
Interest exceeds the amount of the
Claim or Interest scheduled by the
Debtors as not disputed, contingent,
or unliquidated.
Distribution means a distribution to a Holder of
an Allowed Claim pursuant to this
Plan.
Distribution Record Date means [ ].
Docket means the docket in the Chapter 11
Cases maintained by the Clerk.
Effective Date means the first Business Day on
which all the conditions precedent
to the effectiveness of the Plan
shall have been satisfied or waived;
provided, however, that if a stay of
the Confirmation Order is in effect
(and the satisfaction of such
condition is the final condition to
be satisfied or waived for the
effectiveness of the Plan), the
Effective Date shall be extended to
the first Business Day after such
stay is no longer in effect.
Eligible Leap Avoidance Action means, except for any claim or
action released pursuant to the
terms of the Plan, any claim or
action held by Leap arising under or
relating to sections 542, 543, 544,
545, 547, 548, 549, or 550 of the
Bankruptcy Code; provided that, no
such claim or action shall be deemed
to be an Eligible Leap Avoidance
Action until (i) the Leap Creditor
Trust Trustee has given 20-days'
prior written notice to the Informal
Vendor Debt Committee and the
Debtors and their respective counsel
of the name of the proposed
defendant against whom the Leap
Creditor Trust Trustee seeks to
bring the claim or action and (ii)
such proposed defendant is not
determined to be a "Material Vendor
or Customer" in accordance with the
following procedures. If after
receiving notice of a proposed claim
or action the Informal Vendor Debt
Committee reasonably determines that
the proposed defendant of the claim
or action is a vendor, customer or
other party with whom the Debtors or
Reorganized Debtors have, or
reasonably expect to have, a
material business relationship, the
Informal Vendor Debt Committee shall
notify the Leap Creditor Trust
Trustee in writing within the
applicable 20-day period that the
proposed defendant is a "Material
Vendor or Customer." If
9
so designated, then the proposed
claim or action shall not be an
Eligible Leap Avoidance Action and
shall not be commenced or otherwise
prosecuted by the Leap Creditor
Trust Trustee; provided that, the
Leap Creditor Trust Trustee shall
have the right to petition the Court
in the event that it determines that
the designation of the proposed
defendant as a "Material Vendor or
Customer" is unreasonable. If the
Informal Vendor Debt Committee does
not notify the Leap Creditor Trust
Trustee in writing within the
applicable 20-day period that the
proposed defendant is a "Material
Vendor or Customer," the proposed
claim or action shall be deemed to
be an Eligible Leap Avoidance Action
and the Leap Creditor Trust Trustee
may commence and otherwise prosecute
such action or claim in its sole
discretion.
Eligible Leap Cause of Action means, except for any claim or cause
of action released pursuant to the
terms of the Plan, any cause of
action held by Leap (other than an
action held by Leap arising under or
relating to sections 542, 543, 544,
545, 547, 548, 549, or 550 of the
Bankruptcy Code); provided that, no
such cause of action shall be deemed
to be an Eligible Leap Cause of
Action until (i) the Leap Creditor
Trust Trustee has given 20-days'
prior written notice to the Informal
Vendor Debt Committee and the
Debtors and their respective counsel
of the name of the proposed
defendant against whom the Leap
Creditor Trust Trustee seeks to
bring the cause of action and a
summary of the amounts at issue and
the substantive factual allegations
and legal theories underlying such
cause of action, and (ii) such
proposed cause of action is not
determined to be a "Materially
Adverse Action" in accordance with
the following procedures. If after
receiving notice of a proposed cause
of action the Informal Vendor Debt
Committee reasonably determines that
the proposed cause of action has, or
could reasonably be expected to
have, a material adverse effect on
the Debtors or Reorganized Debtors
or their respective businesses or
prospects, the Informal Vendor Debt
Committee shall notify the Leap
Creditor Trust Trustee in writing
within the applicable 20-day period
that the proposed cause of action is
a "Materially Adverse Action." If so
designated, then the proposed cause
of action shall not be an Eligible
Leap Cause of Action and shall not
be commenced or otherwise prosecuted
by the Leap Creditor Trust Trustee;
provided that, the Leap Creditor
Trust Trustee shall have the right
to petition the Court in the event
that it determines that the
designation of the proposed cause of
action as a "Materially Adverse
Action" is unreasonable. If the
Informal Vendor
10
Debt Committee does not notify the
Leap Creditor Trust Trustee in
writing within the applicable 20-day
period that the proposed cause of
action is a "Materially Adverse
Action," the proposed cause of
action shall be deemed to be an
Eligible Leap Cause of Action and
the Leap Creditor Trust Trustee may
commence and otherwise prosecute
such action in its sole discretion.
Any Leap cause(s) of action listed
in Leap's Schedules, including the
cause of action related to the
Endesa note receivable, shall be
conclusively deemed Eligible Leap
Causes of Action without further
action of the parties.
Ericsson means Ericsson Credit AB.
Ericsson Facility means that certain Credit Agreement
among CCH, Cricket and Ericsson, as
administrative agent, dated as of
October 20, 2000, as amended.
Estates means, collectively, the estates
created in each of the Debtors'
Chapter 11 Cases under section 541
of the Bankruptcy Code.
FCC means Federal Communications
Commission.
File or Filed means filed with the Court in the
Chapter 11 Cases.
Final Order means an order or judgment of the
Court as entered on the Docket in
the Chapter 11 Cases, or other court
of competent jurisdiction, the
operation or effect of which has not
been stayed, reversed or amended,
and as to which order or judgment
(or any revision, modification, or
amendment thereof) the time to
appeal or seek review or rehearing
has expired and as to which no
appeal or petition for review or
rehearing was filed or, if filed,
remains pending.
GAAP means Generally Accepted Accounting
Principles in the United States of
America as in effect on the date of
this Plan, including those set forth
in (i) the opinions and
pronouncements of the Accounting
Principles Board of the American
Institute of Certified Public
Accountants, (ii) statements and
pronouncements of the Financial
Accounting Standards Board, (iii)
such other statements by such other
entity as approved by a significant
segment of the accounting profession
and (iv) the rules and regulations
of the SEC governing the inclusion
of financial statements (including
pro forma financial statements) in
periodic reports required to be
filed pursuant to section 13 of the
Exchange Act, including opinions and
pronouncements in
11
staff accounting bulletins and
similar written statements from the
accounting staff of the SEC.
General Unsecured Claim means any Claim that is not an
Administrative Claim, Priority
Claim, Priority Tax Claim,
Intercompany Claim or Secured Claim,
and shall include any deficiency
Claim of a Holder of a Secured
Claim.
GLH means, collectively, GLH, Inc. and
NTCH, Inc.
GLH Collateral means the Collateral securing the
obligations of Leap, directly or
indirectly arising out of, in
connection with or otherwise
relating to securing the obligations
of the GLH Loan Agreement.
GLH Loan Agreement means the Loan Agreement, dated as
of April 9, 2002, by and between
Leap, as borrower, and GLH, as
lender, and as such Loan Agreement
has been modified and amended from
time to time.
Holder means the holder of a Claim or
Interest.
Impaired means, when used with reference to a
Claim or Interest, a Claim or
Interest that is impaired within the
meaning of section 1124 of the
Bankruptcy Code.
Indenture means that certain Indenture, dated
as of February 23, 2000, among Leap,
as Issuer, and the Old Indenture
Trustee, pursuant to which the
12 1/2% Senior Notes and the 14 1/2%
Senior Discount Notes were issued,
together with any amendments or
supplements thereto.
Informal Noteholder Committee means that certain informal
committee organized pre-petition and
composed of certain Holders of the
Old Leap Notes in connection with
the Debtors' pre-petition efforts to
commence and facilitate negotiations
of a restructuring of the Old Leap
Notes. The Informal Noteholder
Committee disbanded upon the
appointment of the Official
Committee.
Informal Vendor Debt Committee means that certain informal
committee organized pre-petition and
composed of certain Holders of the
Old Vendor Debt in connection with
the Debtors' pre-petition efforts to
commence and facilitate negotiations
of a restructuring of the Old Vendor
Debt. The members of the Informal
Vendor Debt Committee are: AIM
Floating Rate Fund, Aimco CDO Series
2000-4, Aimco CLO Series 2001-A,
Alliance Capital Management, L.P.,
Allstate Life Insurance Company,
APEX (IDM) CDO I, Ltd.,
12
Archimedes Funding II, Ltd.,
Archimedes Funding III, Ltd.,
Archimedes Funding IV (Cayman),
Ltd., Ares III CLO Ltd., Ares IV CLO
Ltd., Aurum CLO 2002-1 Ltd., Bank
One, N.A., Capital Research and
Management Company, Catalyst
Investment Management, Cerberus
Capital, Ceres II Finance Ltd., CFSC
Wayland Advisers, Inc., Charter View
Portfolio, Credit Suisse First
Boston, Cypress Management, Eaton
Vance Senior Income Trust, ELC
(Cayman) Ltd. CDO Series 1999, ELC
(Cayman) Ltd. 1999-II, ELC (Cayman)
Ltd. 1999-III, ELC (Cayman) Ltd.
2000-I, Franklin Floating Rate
Trust, Goldman Sachs Credit Partners
L.P., Grayson & Co., Highland
Capital, Indosuez Capital Funding
IIA Limited, Indosuez Capital
Funding III, Limited, Indosuez
Capital Funding VI, Limited, ING
Capital LLC (Middenbank Curacao NY),
Liberty Floating Rate Advantage
Fund, Merrill Lynch, MHR Fund
Management LLC, Mitchell R. Julis,
Nemean CLO, Ltd., Pacifica Partners
I, L.P., Romulus Holdings, Inc.,
Senior Debt Portfolio (Boston
Management and Research), SRF 2000
LLC, Stein Roe & Farnham CLO I Ltd.,
Stein Roe Floating Rate Limited
Liability Company, Varde Partners,
Inc. and York Capital Management LP.
Initial Distribution Date means the date that is no later than
eleven days following the
Confirmation Date. On the Initial
Distribution Date, (a) Holders of
Allowed Leap General Unsecured
Claims shall receive their Pro Rata
share of beneficial interests in the
Leap Creditor Trust and (b) the Leap
Creditor Trust shall receive (x) the
Leap General Unsecured Claim Cash
Distribution; (y) the Leap General
Unsecured Claim Equity Distribution;
and (z) the Leap Creditor Trust
Assets; provided, that in the event
that the Effective Date has not
occurred as of the Initial
Distribution Date, Leap shall not
transfer the Leap Creditor Trust
Assets or the Leap General Unsecured
Claim Equity Distribution to the
Leap Creditor Trust on the Initial
Distribution Date (and such transfer
shall occur on the Effective Date or
as soon as practicable thereafter);
provided further, that if any Leap
Creditor Trust Assets are converted
to Cash on or after the Initial
Distribution Date but prior to the
Effective Date, the Cash proceeds
shall be transferred to the Leap
Creditor Trust as soon as
practicable upon such monetization,
notwithstanding the fact that the
Effective Date has not occurred.
Instrument means any share of stock, security,
promissory note or other
"instrument," within the meaning of
that term, as defined in section
9105(1)(i) of the UCC.
13
Intercompany Claims means all Claims that are or could
be asserted by any Debtor(s) or
its/their Estate(s) against any
other Debtor(s) or its/their
Estate(s).
Intercompany Release means the full and complete release
of Intercompany Claims released
pursuant to the Plan, as described
at Section 5.05 of the Plan.
Interest means any equity security (as
defined in section 101(16) of the
Bankruptcy Code) of any of the
Debtors.
Leap means Leap Wireless International,
Inc., a Delaware corporation.
Leap Claims means any and all Claims (as defined
in section 101(5) of the Bankruptcy
Code) held by Leap.
Leap Creditor Trust means that certain trust established
as of the Initial Distribution Date,
for the benefit of Holders of Leap
General Unsecured Claims, pursuant
to which, inter alia, the Leap
Creditor Trust Trustee will
liquidate the Leap Creditor Trust
Assets and Distribute the proceeds
thereof to Holders of Allowed Leap
General Unsecured Claims. The United
States Trustee reserves all rights
with respect to the terms and
conditions of the Leap Creditor
Trust.
Leap Creditor Trust Agreement means that certain Liquidating Trust
Agreement and Declaration of Trust
for the Leap Wireless International,
Inc. Liquidating Trust governing the
terms of the Leap Creditor Trust and
outlining the terms of employment of
the Leap Creditor Trust Trustee. A
copy of the Leap Creditor Trust
Agreement will be filed with the
Plan Supplement. The United States
Trustee reserves all rights with
respect to the terms and conditions
of the Leap Creditor Trust
Agreement.
Leap Creditor Trust Assets means certain assets of Leap and its
subsidiaries that will be
transferred on the Effective Date to
the Leap Creditor Trust as follows:
(i) the PCS licenses in the Bemidji,
Minnesota (10 MHz); Brainerd,
Minnesota (10 MHz); Escanaba,
Michigan (10 MHz); Pueblo, Colorado
(10 MHz); and Salem, Oregon (10 MHz)
Basic Trading Areas ("BTAs") and any
cause(s) of action resulting from
the proposed sale thereof pursuant
to a previously executed agreement;
(ii) Leap's stake in the Idaho joint
venture with NTCH; (iii) any Leap
cause(s) of action listed in Leap's
Schedules, including the cause of
action related to the Endesa note
receivable, together with any
Eligible Leap Causes of Action; (iv)
any Eligible Leap Avoidance
14
Actions; (v) any and all Tax Refunds
that are to be delivered to the Leap
Creditor Trust in accordance with
this Plan; (vi) Cash to be paid by
Cricket in an amount equal to the
Leap Deposits; and (vii) the PCS
licenses in the Bozeman, Montana (20
MHz); Casper, Wyoming (15 MHz);
Lewiston, Idaho (15 MHz); and
Redding, California (15 MHz) BTAs
and any cause(s) of action resulting
from the proposed sale thereof
pursuant to the previously executed
agreement.
Leap Creditor Trust Trustee means the trustee for the Leap
Creditor Trust, as chosen by the
Official Committee. The identity of
the Leap Creditor Trust Trustee will
be submitted to the Court no later
than 10 days prior to the
Confirmation Hearing.
Leap Deposits means deposits paid by Leap prior to
the Petition Date with respect to
various leases and contracts that
the Informal Vendor Debt Committee
elects to assume or Reinstate, as
applicable, under the Plan; Cricket
will pay a corresponding amount
equal to each such deposit as of the
Effective Date to the Leap Creditor
Trust. The Debtors will file a
Schedule, subject to the approval of
the Informal Debt Committee, with
the Court setting forth the final
amount of the Leap Deposits no later
than 17 days before the Voting
Deadline.
Leap General Unsecured Claim means a General Unsecured Claim
against Leap, provided that no
Claims of the Holders of Old Vendor
Debt shall be deemed to be Allowed
Leap General Unsecured Claims to the
extent such Claims arise out of or
relate to an Old Vendor Debt Claim.
Leap General Unsecured
Claim Cash Distribution means the Cash to be distributed to
the Leap Creditor Trust on the
Initial Distribution Date (and
irrespective of the occurrence of
the Effective Date) for the benefit
of the Holders of Allowed Leap
General Unsecured Claims, which
shall consist of substantially all
of Leap's unrestricted Cash
(excluding the Leap Deposits, for
which a corresponding amount shall
be paid by Cricket on the Effective
Date to the Leap Creditor Trust as
part of the Leap Creditor Trust
Assets), less an appropriate reserve
in an amount to be agreed upon by
the Debtors and the Official
Committee prior to the Initial
Distribution Date for Allowed
Administrative Claims against Leap
through and including the Effective
Date and Allowed Priority Claims
against Leap.
15
Leap General Unsecured Claim
Equity Distribution means the New Leap Common Stock to
be delivered to the Leap Creditor
Trust for Distribution to the
Holders of Allowed Leap General
Unsecured Claims, on a Pro Rata
basis, which in the aggregate shall
equal 3.5% of the outstanding and
issued shares of New Leap Common
Stock as of the Effective Date.
Leap General Unsecured Creditor means a Holder of a Leap General
Unsecured Claim.
License Holding Companies means, collectively, Chasetel
Licensee Corporation, a Delaware
corporation; Cricket Licensee
(Albany), Inc., a Delaware
corporation; Cricket Licensee
(Columbus), Inc., a Delaware
corporation; Cricket Licensee
(Denver), Inc., a Delaware
corporation; Cricket Licensee
(Lakeland), Inc., a Delaware
corporation; Cricket Licensee
(Macon), Inc., a Delaware
corporation; Cricket Licensee (North
Carolina), Inc., a Delaware
Corporation; Cricket Licensee
(Pittsburgh), Inc., a Delaware
corporation; Cricket Licensee
(Reauction), Inc., a Delaware
corporation; Cricket Licensee I,
Inc., a Delaware corporation;
Cricket Licensee II, Inc., a
Delaware corporation; Cricket
Licensee III, Inc., a Delaware
corporation; Cricket Licensee IV,
Inc., a Delaware corporation;
Cricket Licensee V, Inc., a Delaware
corporation; Cricket Licensee VI,
Inc., a Delaware corporation;
Cricket Licensee VII, Inc., a
Delaware corporation; Cricket
Licensee VIII, Inc., a Delaware
corporation; Cricket Licensee IX,
Inc., a Delaware corporation;
Cricket Licensee X, Inc., a Delaware
corporation; Cricket Licensee XI,
Inc., a Delaware corporation;
Cricket Licensee XII, Inc., a
Delaware corporation; Cricket
Licensee XIII, Inc., a Delaware
corporation; Cricket Licensee XIV,
Inc., a Delaware corporation;
Cricket Licensee XV, Inc., a
Delaware corporation; Cricket
Licensee XVI, Inc., a Delaware
corporation; Cricket Licensee XVII,
Inc., a Delaware corporation;
Cricket Licensee XVIII, Inc., a
Delaware corporation; Cricket
Licensee XIX, Inc., a Delaware
corporation; and Cricket Licensee
XX, Inc., a Delaware corporation.
Lien has the meaning set forth in section
101(37) of the Bankruptcy Code.
Litigation Claims means any Claims arising out of any
causes of action, whether known or
unknown, contingent or
non-contingent, or liquidated or
unliquidated, held or asserted by a
Person.
16
Local Bankruptcy Rules means the local rules of the Court,
as applicable from time to time in
the Chapter 11 Cases.
Lucent means Lucent Technologies Inc.
Lucent Facility means that certain Credit Agreement
among CCH, Cricket and Lucent, as
administrative agent, dated as of
September 20, 1999, as amended and
restated.
New Cricket Common Stock means common stock of Reorganized
Cricket which is to be issued by
Reorganized Cricket on the Effective
Date in accordance with the terms of
the Plan, as more fully described in
the Description of the New Cricket
Common Stock attached to the
Disclosure Statement as Exhibit J.
New Leap Common Stock means common stock of Reorganized
Leap which is to be issued by
Reorganized Leap on and after the
Effective Date in accordance with
the terms of the Plan, as more fully
described in the Description of the
New Leap Capital Stock attached to
the Disclosure Statement as Exhibit
J.
New License Holding Company
Common Stock means common stock of a Reorganized
License Holding Company which is to
be issued by such License Holding
Company on the Effective Date in
accordance with terms of the Plan,
as more fully described in the
Description of the New License
Holding Company Common Stock
attached to the Disclosure Statement
as Exhibit J.
New Other Subsidiary
Common Stock means common stock of a Reorganized
Other Subsidiary which is to be
issued by such Other Subsidiary on
the Effective Date in accordance
with terms of the Plan, as more
fully described in the Description
of the New Other Subsidiary Common
Stock attached to the Disclosure
Statement as Exhibit J.
New Property Holding
Company Common Stock means common stock of a Reorganized
Property Holding Company which is to
be issued by such Property Holding
Company on the Effective Date in
accordance with terms of the Plan,
as more fully described in the
Description of the New Property
Holding Company Common Stock
attached to the Disclosure Statement
as Exhibit J.
New Senior Notes means the 13% Senior Secured Notes
due on the seventh anniversary of
the Effective Date, to be issued by
Reorganized Cricket pursuant to the
New Senior Notes Indenture and to be
secured by the New Senior Notes
17
Collateral, as more fully described
in the Description of the New Senior
Notes attached to the Disclosure
Statement as Exhibit K.
New Senior Notes Collateral means all collateral pledged to
secure the obligations under the New
Senior Notes as provided for in the
New Senior Notes Indenture;
provided, that no Leap Creditor
Trust Assets shall at any time
constitute New Senior Notes
Collateral.
New Senior Notes Indenture means that certain Indenture dated
as of the Effective Date among
Reorganized Cricket, as Issuer, the
other parties thereto and the New
Senior Notes Trustee, pursuant to
which the New Senior Notes will be
issued.
New Senior Notes Trustee means the entity serving as trustee
pursuant to the New Senior Notes
Indenture, whose identity will be
disclosed prior to the Confirmation
Hearing.
Nortel means Nortel Networks Inc.
Nortel Facility means that certain Credit Agreement
among CCH, Cricket and Nortel, as
administrative agent, dated as of
August 28, 2000, as amended.
Official Committee means the official unsecured
creditors' committee of Leap,
appointed in the Chapter 11 Case of
Leap by the Office of the United
States Trustee, as its composition
may be changed from time to time by
the addition, resignation and/or
removal of its members.
Old CCH Common Stock means all authorized and issued
shares of common stock of CCH, with
a par value of $.0001 per share, and
any right, contractual or otherwise,
to acquire any common shares of CCH,
existing prior to the Petition Date.
Old Cricket Common Stock means all authorized and issued
shares of common stock of Cricket,
with a par value of $.0001 per
share, and any right, contractual or
otherwise, to acquire any common
shares of Cricket, existing prior to
the Petition Date.
Old Indenture Trustee means U.S. Bank National Association
(successor to State Street Bank and
Trust Company) and its successors,
as Trustee under the Indenture.
Old Leap Common Stock means all authorized and issued
shares of common stock of Leap, with
a par value of $.0001 per share, and
any right, contractual or otherwise,
to acquire any common shares of
Leap, existing prior to the Petition
Date.
18
Old Leap Notes means, collectively, the 12 1/2%
Senior Notes and the 14 1/2% Senior
Discount Notes.
Old License Holding Company
Common Stock means all authorized and issued
shares of common stock of each Old
License Holding Company, with a par
value of $.0001 per share, and any
right, contractual or otherwise, to
acquire any common shares of Old
License Holding Company Common
Stock, existing prior to the
Petition Date.
Old Other Subsidiary
Common Stock means all authorized and issued
shares of common stock of each Old
Subsidiary, with a par value of
$.0001 per share, and any right,
contractual or otherwise, to acquire
any common shares of Old Other
Subsidiary Common Stock, existing
prior to the Petition Date.
Old Property Holding Company
Common Stock means all authorized and issued
shares of common stock of each
Property Holding Company, with a par
value of $.0001 per share, and any
right, contractual or otherwise, to
acquire any common shares of Old
Property Holding Company Common
Stock, existing prior to the
Petition Date.
Old Securities means Old Leap Common Stock, Old
Leap Notes, Old CCH Common Stock,
Old Cricket Common Stock, Old
License Holding Company Common
Stock, Old Other Subsidiary Common
Stock and Old Property Holding
Company Common Stock.
Old Stock Rights means, collectively, any warrants,
and any other rights, to purchase or
otherwise acquire Old Securities,
and any stock appreciation or
similar rights relating to any
Debtor's Old Common Stock, existing
prior to the Effective Date.
Old Vendor Debt means, collectively, all Claims
arising from or related to the
Vendor Debt Facilities and existing
prior to the Effective Date,
including without limitation, Nortel
Networks' and others' commitment
fees, administrative agent fees and
origination fees due under the
Vendor Debt Facilities.
Old Vendor Debt Distribution means the following consideration to
be distributed by Reorganized
Cricket for the benefit of the
Holders of Allowed Vendor Debt
Claims on account of their Secured
Claims on the Effective Date, or as
soon as practicable thereafter, on a
Pro Rata basis: (a) the New Senior
Notes
19
and (b) 96.5% of the outstanding and
issued New Leap Common Stock. In
addition to the Old Vendor Debt
Distribution, on the Initial
Distribution Date, Holders of the
Old Vendor Debt shall receive, in
full satisfaction, settlement,
release and discharge of and in
exchange for their Claims against
Leap and its Estate, the
Intercompany Releases.
Order means an order or judgment of the
Court as entered on the Docket.
Other Priority Claim means any Claim, other than an
Administrative Claim or a Priority
Tax Claim, entitled to priority in
right of payment under section
507(a) of the Bankruptcy Code.
Other Subsidiaries means Backwire.com, Inc., Leap PCS
Mexico, Inc. and Telephone
Entertainment Network, Inc.
Person means any individual, corporation,
general partnership, limited
partnership, limited liability
partnership, limited liability
company, association, joint stock
company, joint venture, government
or political subdivision, official
committee appointed by the United
States Trustee, unofficial committee
of creditors or equity Holders, or
other entity.
Petition Date means April 13, 2003, the date on
which each of the Debtors filed
their respective petitions for
relief commencing the Chapter 11
Cases.
Plan means this Third Amended Joint
Chapter 11 Plan of Reorganization,
as modified, for each of the
Debtors, as it may be amended or
modified, from time to time,
together with all addenda, exhibits,
schedules, supplements or other
attachments, if any. If the Plan is
withdrawn as the Plan for a
particular Debtor, the defined term
"Plan" shall not include the plan
for such Debtor.
Plan Supplement means the supplement containing the
forms of documents specified in
Section 11.11 of the Plan which are
subject to modification by the
Debtors (with the consent of the
Informal Vendor Debt Committee and
the Official Committee) prior to the
Effective Date.
Postpetition Tax Claims means Administrative Claims and
other Claims by a governmental unit
for taxes against any of the Debtors
(and for interest and/or penalties
related to such taxes) for any tax
year or period, all or any portion
of which occurs or
20
falls within the period from and
including the Petition Date through
and including the Effective Date.
Priority Claim means an Allowed Claim entitled to
priority under sections 507(a)(3)
through 507(a)(7) of the Bankruptcy
Code.
Priority Tax Claim means any unsecured Claim of a
governmental unit of the kind
specified in sections 502(i) and
507(a)(8) of the Bankruptcy Code.
Pro Rata means, with respect to any
distribution on account of an
Allowed Claim or Allowed Interest
with respect to a particular Debtor,
a proportionate share, so that the
ratio of the consideration
distributed on account of an Allowed
Claim or Allowed Interest in a Class
to the amount of such Allowed Claim
or Allowed Interest is the same as
the ratio of the amount of the
consideration distributed on account
of all Allowed Claims or Allowed
Interests in such Class to the
amount of all Allowed Claims or
Allowed Interests in such Class.
Property Holding
Companies means, collectively, Cricket Alabama
Property Company, a Delaware
corporation; Cricket Arizona
Property Company, a Delaware
corporation; Cricket Arkansas
Property Company, a Delaware
corporation; Cricket California
Property Company, a Delaware
corporation; Cricket Colorado
Property Company, a Delaware
corporation; Cricket Florida
Property Company, a Delaware
corporation; Cricket Georgia
Property Company, inc., a Delaware
corporation; Cricket Idaho Property
Company, a Delaware corporation;
Cricket Illinois Property Company, a
Delaware corporation; Cricket
Indiana Property Company, a Delaware
corporation; Cricket Kansas Property
Company, a Delaware corporation;
Cricket Kentucky Property Company, a
Delaware corporation; Cricket
Michigan Property Company, a
Delaware corporation; Cricket
Minnesota Property Company, a
Delaware corporation; Cricket
Mississippi Property Company, a
Delaware corporation; Cricket
Nebraska Property Company, a
Delaware corporation; Cricket Nevada
Property Company, a Delaware
corporation; Cricket New Mexico
Property Company, a Delaware
corporation; Cricket New York
Property Company, Inc., a Delaware
corporation; Cricket North Carolina
Property Company, a Delaware
corporation; Cricket Ohio Property
Company, a Delaware corporation;
Cricket Oklahoma Property Company, a
Delaware corporation; Cricket
21
Oregon Property Company, a Delaware
corporation; Cricket Pennsylvania
Property Company, a Delaware
corporation; Cricket Texas Property
Company, a Delaware corporation;
Cricket Utah Property Company, a
Delaware corporation; Cricket
Washington Property Company, a
Delaware corporation; and Cricket
Wisconsin Property Company, a
Delaware corporation.
Reinstated means, (x) with respect to a Claim,
(i) the Debtors shall cure any
default with respect to such Claim
that occurred before or after the
relevant Petition Date, (ii) the
maturity of such Claim shall be
Reinstated as such maturity existed
before any such default, (iii) the
Holder of such Claim shall be
compensated for any damages incurred
as a result of any reasonable
reliance by the Holder on any right
to accelerate its Claim, and (iv)
the legal, equitable and contractual
rights of such Holder will not
otherwise be altered and (y) with
respect to an Interest, the legal,
equitable and contractual rights of
the Holder of such Interest will not
be altered; provided that, to the
extent that any Claim or Interest
against Leap is reinstated, the
funding to cure any defaults or
compensate the Holder of such Claim
for such damages on account of such
Claim or Interest shall be satisfied
by funds from Cricket; provided,
further, that if and to the extent
that the Reinstatement gives rise to
an Administrative Claim against
Leap, such claim shall be satisfied
with funds from Cricket.
Reorganized Cricket means, on and after the Effective
Date, Cricket (as reorganized
pursuant to the Plan).
Reorganized Debtor(s) means, on and after the Effective
Date, the Debtors as reorganized
pursuant to the Plan, as the case
may be and, in each case, to the
extent applicable. The Reorganized
Debtors will be comprised of
Reorganized Leap, Reorganized
Cricket, the Reorganized License
Holding Companies, the Reorganized
Other Subsidiaries and the
Reorganized Property Holding
Companies.
Reorganized Leap means, on and after the Effective
Date, Leap (as reorganized pursuant
to the Plan). Reorganized Leap's
assets will not include the assets
comprising the Leap General
Unsecured Claim Cash Distribution or
any of the assets to be transferred
to the Leap Creditor Trust, or any
Claims against or Interests in Leap
that are being discharged under the
Plan.
22
Reorganized License Holding
Companies means, on and after the Effective
Date, the License Holding Companies
(as reorganized pursuant to the
Plan).
Reorganized Other Subsidiaries means, on and after the Effective
Date, the Other Subsidiaries (as
reorganized pursuant to the Plan).
Reorganized Property Holding
Companies means, on and after the Effective
Date, the Property Holding Companies
(as reorganized pursuant to the
Plan).
Scheduled means set forth on the Schedules.
Schedules means the schedules of assets and
liabilities filed by any Debtor
pursuant to section 521 of the
Bankruptcy Code and Bankruptcy Rule
1007, including any amendments and
modifications thereto through the
Confirmation Date.
SEC means the United States Securities
and Exchange Commission.
Secured Claim means any Claim secured by a Lien on
collateral to the extent of the
value of such collateral, as
determined in accordance with
section 506(a) of the Bankruptcy
Code, or, in the event that such
Claim is subject to setoff under
section 553 of the Bankruptcy Code,
to the extent of such setoff.
Securities Claims means any Claim described in section
510(b) of the Bankruptcy Code.
Senior Notes Pledged Account means the account pledged by Leap
pursuant to the Indenture for the
benefit of the Holders of the
12 1/2% Senior Notes pursuant to the
Indenture.
Supplemental Bar Date means, August ___, 2003, the
supplemental bar date established by
the Court for the Additional
Parties.
Tax Refund means any federal, state or local
tax refund received by any of the
Debtors or Reorganized Debtors with
respect to any tax period ending
prior to the Effective Date. If any
Debtor or Reorganized Debtor
receives such a tax refund, prompt
written notice thereof shall be
provided to the Informal Vendor Debt
Committee, the Official Committee
(unless disbanded) and the Leap
Creditor Trust Trustee. The Informal
Vendor Debt Committee, the Official
Committee (unless disbanded) and the
Leap Creditor Trust Trustee shall
promptly endeavor to resolve the
question of who shall retain such
tax refund. If the Informal Vendor
Debt
23
Committee, the Official Committee
(unless disbanded) and the Leap
Creditor Trust Trustee cannot agree
as to who shall retain such tax
refund within 30 days from the
receipt of such refund by the
applicable Debtor or Reorganized
Debtor, any of the Informal Vendor
Debt Committee, the Official
Committee or the Leap Creditor Trust
Trustee may File a motion with the
Court requesting the Court to
determine who shall retain such tax
refund. Until such motion is
resolved or the parties agree on who
shall retain such tax refund,
notwithstanding any other provision
of the Plan, the tax refund shall be
held in an escrow account and shall
not be distributed to the Leap
Creditor Trust or any other Person.
Upon resolution of the motion or
agreement by the parties on who
shall retain such tax refund, such
tax refund shall be transferred to
the Reorganized Debtors or the Leap
Creditor Trust, as applicable,
within 5 days following such
resolution or agreement, as the case
may be.
UCC means the Uniform Commercial Code,
as in effect and as modified or
amended at any relevant time.
Unimpaired means with reference to a Class of
Claims, that the Class is not
Impaired. An Unimpaired Class is not
entitled to vote on the Plan.
Vendor Debt Facilities means, collectively, the Ericsson
Facility, the Lucent Facility and
the Nortel Facility.
Voting Agent means Poorman Douglas Inc.
Voting Deadline means the date on which Ballots must
be received by the Voting Agent. For
purposes of the Plan, the Voting
Deadline is [_____________] at 4:00
p.m. West Coast Time, or, if the
Voting Deadline is extended by Court
Order, the latest date on which a
Ballot will be accepted.
SECTION 2.02 INTERPRETATION AND COMPUTATION OF TIME
(a) Defined Terms.
Any term used in the Plan that is not defined in the Plan,
either in Article II (Definitions) or elsewhere, but that is used in the
Bankruptcy Code, the Bankruptcy Rules or the Local Bankruptcy Rules, shall have
the meaning assigned to that term in the Bankruptcy Code, the Bankruptcy Rules
or the Local Bankruptcy Rules, as the case may be.
(b) Rules Of Interpretation.
For purposes of the Plan: (a) whenever it appears appropriate
from the context, each term, whether stated in the singular or the plural, shall
include both the singular and the
24
plural; (b) any reference in the Plan to a contract, instrument, release or
other agreement or document being in a particular form or on particular terms
and conditions means that such document shall be substantially in such form or
substantially on such terms and conditions; provided, however, that any change
to such form, terms, or conditions which is material to a party to such document
shall not be made without such party's consent; (c) 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 (to the extent otherwise permitted, hereafter)
may be amended, modified or supplemented from time to time; (d) unless otherwise
specified in a particular reference, all references in the Plan to paragraphs,
Articles and Exhibits are references to paragraphs, Articles and Exhibits of or
to the Plan; (e) the words "herein," "hereof," "hereto," "hereunder" and others
of similar import refer to the Plan in its entirety rather than to only a
particular portion of the Plan; (f) captions and headings to Articles and
paragraphs are inserted for convenience of reference only and are not intended
to be a part of or to affect the interpretations of the Plan; (g) the rules of
construction set forth in section 102 of the Bankruptcy Code shall apply; (h)
all exhibits to the Plan are incorporated into the Plan, and shall be deemed to
be included in the Plan, provided that they are Filed no later than the
conclusion of the Confirmation Hearing; (i) unless otherwise specified herein,
the term "Debtors" includes Leap, CCH, Cricket, the License Holding Companies,
the Property Holding Companies and the Other Subsidiaries; and (j) the term
"non-Leap Debtor" means a Debtor other than Leap.
(c) Time Periods.
In computing any period of time prescribed or allowed by the
Plan, the provisions of Bankruptcy Rule 9006(a) shall apply.
ARTICLE III.
CLASSIFICATION OF CLAIMS AND INTERESTS
The following is a designation of the Classes of Claims and
Interests under the Plan. In accordance with section 1123(a)(1) of the
Bankruptcy Code, Administrative Claims and Priority Tax Claims have not been
classified and are excluded from the following Classes. A Claim or Interest is
classified in a particular Class only to the extent that the Claim or Interest
qualifies within the description of that Class, and is classified in another
Class or Classes to the extent that any remainder of the Claim or Interest
qualifies within the description of such other Class or Classes, and only
against the particular Debtor. A Claim or Interest is classified in a particular
Class only to the extent that the Claim or Interest is an Allowed Claim or
Allowed Interest in that Class and has not been paid, released or otherwise
satisfied before the Effective Date; a Claim or Interest which is not an Allowed
Claim or Allowed Interest is not in any Class. A Disputed Claim or Disputed
Interest, to the extent that it subsequently becomes an Allowed Claim or Allowed
Interest, shall be included in the Class for which it would have qualified had
it not been disputed. Notwithstanding anything to the contrary contained in the
Plan, no distribution shall be made on account of any Claim or Interest which is
not an Allowed Claim or an Allowed Interest. Unless otherwise specified herein,
each Debtor shall assume responsibility for paying, satisfying or otherwise
discharging all Allowed Claims against it and shall not be responsible for
paying, satisfying or otherwise discharging any Claim against any other Debtor.
25
CLAIMS AGAINST AND INTERESTS IN LEAP
TYPE OF ALLOWED ESTIMATED
CLASS CLAIM OR INTEREST TREATMENT RECOVERY
- ----- ------------------- --------- -----------
- Administrative Claims Paid in full in Cash by Leap on the Effective 100%
Date or as soon as practicable thereafter
(unless the Holder of a particular Claim
and Leap agree to less favorable
treatment), or in accordance with the
terms and conditions of transactions or
agreements relating to obligations
incurred in the ordinary course of
business during the pendency of the
Chapter 11 Cases.
- Priority Tax Claims Paid in full in Cash by Leap on the Effective 100%
Date or as soon as practicable thereafter.
SECURED CLAIMS:
1A GLH Claim Impaired; on the Effective Date or as soon as 100%
practicable thereafter, GLH shall receive the
GLH Collateral.
1B 12 1/2% Senior Secured Unimpaired; on the Initial Distribution Date or 100%
Claim as soon as practicable thereafter, each Holder
of an Allowed 12 1/2% Senior Secured
Claim shall receive, on a Pro Rata basis,
the 12 1/2% Senior Secured Claim
Distribution (approximately $200,000
remaining in a pledged account).
1C Old Vendor Debt Claim Impaired; on the Initial Distribution Date, 30-37%
each Holder of an Allowed Old Vendor Debt Claim
shall receive in full satisfaction, settlement,
release and discharge of and in exchange for
its Claim against Leap and its Estate, the
benefit of the Intercompany Releases, and on
the Effective Date or as soon as practicable
thereafter, on a Pro Rata basis, the Old Vendor
Debt Distribution.
26
TYPE OF ALLOWED ESTIMATED
CLASS CLAIM OR INTEREST TREATMENT RECOVERY
- ----- ----------------- --------- ---------
2A et Other Secured Unimpaired if paid in full in Cash or 100%
seq. Claims Reinstated on the Effective Date or as soon as
practicable thereafter; Impaired if Holder of
Allowed Class 2A et seq. Claim receives
alternative treatment. Each Holder of an
Allowed Class 2A et seq. Claim shall, in the
discretion of the Debtor with the consent of
the Informal Vendor Debt Committee, receive any
one or a combination of any of the following:
(i) Cash in an amount equal to such Allowed
Class 2A et seq. Claim; (ii) deferred Cash
payments totaling at least the Allowed amount
of such Allowed Class 2A et seq. Claim, of a
value, as of the Effective Date, of at least
the value of such Holder's interest in the
Collateral securing the Allowed Class 2A et
seq. Claim; (iii) the Collateral securing such
Holder's Allowed Class 2A et seq. Claim;
(iv) payments or Liens amounting to the
indubitable equivalent of the value of such
Holder's interest in the Collateral securing
the Allowed Class 2A et seq. Claim;
(v) Reinstatement of such Allowed Class 2A et
seq. Claim; or (vi) such other treatment as the
Debtor and such Holder shall have agreed upon
in writing. The Debtor will make the foregoing
election and provide notice of such election to
the applicable Holder of an Allowed Class 2A et
seq. Claim no later than 14 days prior to the
Voting Deadline. To the extent the Debtor
elects clause (i), (ii), (iv), (v) or (vi)
above, any liability associated with such
treatment shall be satisfied with funds from
Cricket.
27
TYPE OF ALLOWED ESTIMATED
CLASS CLAIM OR INTEREST TREATMENT RECOVERY
- ----- ----------------- --------- ---------
UNSECURED CLAIMS:
3 Priority Claims Unimpaired; paid in full by Leap on or before 100%
the later of (i) the Effective Date or as soon
as practicable thereafter, (ii) the date such
Claim becomes an Allowed Claim and (iii) the
date that such Claim would be paid in
accordance with the terms and conditions of any
agreements or understandings relating thereto
between Leap and the Holder of such Claim.
4 General Unsecured Claims Impaired; each Holder of an Allowed Class 4 14%
Claim to receive a Pro Rata distribution of
beneficial interests in the Leap Creditor
Trust.
4A Subordinated General Impaired; each Holder of an Allowed Class 4A 0%
Unsecured Claims of MCG Claim to receive no Cash or property on account
PCS, Inc. of such Claim.
5 Intercompany Claims Impaired; each Holder of an Allowed Class 5 0%
Claim to receive the Intercompany Release as of
the Initial Distribution Date.
6 Old Leap Common Stock Impaired; each Holder of an Allowed Class 6 0%
and Securities Claims Interest to receive no Cash or property on
against Leap account of such Interest.
7 Old Stock Rights in Leap Impaired; each Holder of an Allowed Class 7 0%
and All Claims Arising Interest to receive no Cash or property on
Out of Such Old Stock account of such Interest.
Rights
28
CLAIMS AGAINST AND INTERESTS IN CCH
TYPE OF ALLOWED ESTIMATED
CLASS CLAIM OR INTEREST TREATMENT RECOVERY
- ----- ----------------- --------- ---------
- Administrative Claims Paid in full in Cash by CCH on the Effective 100%
Date or as soon as practicable thereafter
(unless the Holder of a particular Claim
and CCH agree to some other treatment),
or in accordance with the terms and
conditions of transactions or agreements
relating to obligations incurred in the
ordinary course of business during the
pendency of the Chapter 11 Cases.
- Priority Tax Claims Paid in full in Cash by CCH on the Effective 100%
Date or as soon as practicable thereafter.
SECURED CLAIMS:
1A Old Vendor Debt Claim Impaired; on the Effective Date or as soon as 30-37%
practicable thereafter, each Holder of an
Allowed Old Vendor Debt Claim shall receive, on
a Pro Rata basis, the Old Vendor Debt
Distribution.
2A et Other Secured Unimpaired if paid in full in Cash or 100%
seq. Claims Reinstated on the Effective Date or as soon as
practicable thereafter; Impaired if Holder of
Allowed Class 2A et seq. Claim receives
alternative treatment. Each Holder of an
Allowed Class 2A et seq. Claim shall, in the
discretion of the Debtor with the consent of
the Informal Vendor Debt Committee, receive any
one or a combination of any of the following:
(i) Cash in an amount equal to such Allowed
Class 2A et seq. Claim; (ii) deferred Cash
payments totaling at least the Allowed amount
of such Allowed Class 2A et seq. Claim, of a
value, as of the Effective Date, of at least
the value of such Holder's interest in the
Collateral securing the Allowed Class 2A
et seq. Claim; (iii) the Collateral
securing such Holder's
29
TYPE OF ALLOWED ESTIMATED
CLASS CLAIM OR INTEREST TREATMENT RECOVERY
- ----- ----------------- --------- ---------
Allowed Class 2A et seq. Claim; (iv)
payments or Liens amounting to the
indubitable equivalent of the value of
such Holder's interest in the Collateral
securing the Allowed Class 2A et seq.
Claim; (v) Reinstatement of such Class 2A
et seq. Claim; or (vi) such other
treatment as the Debtor and such Holder
shall have agreed upon in writing. The
Debtor will make the foregoing election
and provide notice of such election to
the applicable Holder of an Allowed Class
2A et seq. Claim no later than 14 days
prior to the Voting Deadline. To the
extent the Debtor elects clause (i),
(ii), (iv), (v) or (vi) above, any
liability associated with such treatment
shall be satisfied with funds from
Cricket.
UNSECURED CLAIMS:
3 Priority Claims Unimpaired; paid in full by CCH on or before 100%
the later of (i) the Effective Date or as soon
as practicable thereafter, (ii) the date such
Claim becomes an Allowed Claim and (iii) the
date that such Claim would be paid in
accordance with the terms and conditions of any
agreements or understandings relating thereto
between CCH and the Holder of such Claim.
4 General Unsecured Claims Impaired; each Holder of an Allowed Class 4 0%
Claim shall receive no Cash or property on
account of such Claim.
5 Intercompany Claims Impaired; each Holder of an Allowed Class 5 0%
Claim to receive the Intercompany Release as of
the Initial Distribution Date.
6 Old CCH Common Stock and Impaired; on the Effective Date, CCH shall be 0%
Securities Claims merged into Cricket.
against CCH
30
TYPE OF ALLOWED ESTIMATED
CLASS CLAIM OR INTEREST TREATMENT RECOVERY
- ----- ----------------- --------- ---------
7 Old Stock Rights in CCH Impaired; each Holder of an Allowed Class 7 0%
and All Claims Arising Interest shall receive no Cash or property on
Out of Such Old Stock account of such Interest.
Rights
CLAIMS AGAINST AND INTERESTS IN CRICKET
TYPE OF ALLOWED ESTIMATED
CLASS CLAIM OR INTEREST TREATMENT RECOVERY
- ----- ----------------- ----------- ---------
- Administrative Claims Paid in full in Cash by Reorganized Cricket on 100%
the Effective Date or as soon as
practicable thereafter (unless the Holder
of a particular Claim and Cricket agree to
some other treatment), or in accordance
with the terms and conditions of
transactions or agreements relating to
obligations incurred in the ordinary
course of business during the pendency of
the Chapter 11 Case.
- Priority Tax Claims At the option of Reorganized Cricket either 100%
(i) Reinstated, (ii) paid in full in Cash by
Reorganized Cricket on the Effective Date or as
soon as practicable thereafter, or (iii) paid
over a six-year period from the date of
assessment, as provided in Section 1129(a)(9)(C)
of the Bankruptcy Code with interest payable at
a rate of 8 1/4% per annum or as otherwise
established by the Court.
SECURED CLAIMS:
1A Old Vendor Debt Claims Impaired; on the Effective Date or as soon as 30-37%
practicable thereafter, each Holder of an
Allowed Old Vendor Debt Claim shall receive, on
a Pro Rata basis, the Old Vendor Debt
Distribution.
2A et Other Secured Unimpaired if paid in full in Cash or Reinstated 100%
seq. Claims on the Effective Date or as soon as practicable
thereafter; Impaired if Holder of Allowed
Class 2A et seq. Claim receives alternative
treatment.
31
TYPE OF ALLOWED ESTIMATED
CLASS CLAIM OR INTEREST TREATMENT RECOVERY
- ----- ----------------- --------- ---------
Each Holder of an Allowed Class 2A et seq.
Claim shall, in the discretion of the
Debtor with the consent of the Informal
Vendor Debt Committee, receive any one or
a combination of any of the following: (i)
Cash in an amount equal to such Allowed
Class 2A et seq. Claim; (ii) deferred Cash
payments totaling at least the Allowed
amount of such Allowed Class 2A et seq.
Claim, of a value, as of the Effective
Date, of at least the value of such
Holder's interest in the Collateral
securing the Allowed Class 2A et seq.
Claim; (iii) the Collateral securing such
Holder's Allowed Class 2A et seq. Claim;
(iv) payments or Liens amounting to the
indubitable equivalent of the value of
such Holder's interest in the Collateral
securing the Allowed Class 2A et seq.
Claim; (v) Reinstatement of such Class 2A
et seq. Claim; or (vi) such other
treatment as the Debtor and such Holder
shall have agreed upon in writing. The
Debtor will make the foregoing election
and provide notice of such election to the
applicable Holder of an Allowed Class 2A
et seq. Claim no later than 10 days prior
to the Voting Deadline.
UNSECURED CLAIMS:
3 Priority Claims Unimpaired; paid in full by Reorganized Cricket 100%
on or before the later of (i) the Effective Date
or as soon as practicable thereafter, (ii) the
date such Claim becomes an Allowed Claim and
(iii) the date that such Claim would be paid in
accordance with the terms and conditions of any
agreements or understandings relating thereto
between Cricket and the Holder of such Claim.
32
TYPE OF ALLOWED ESTIMATED
CLASS CLAIM OR INTEREST TREATMENT RECOVERY
- ----- ----------------- --------- ---------
4 General Unsecured Claims Impaired; each Holder of an Allowed Class 4 0%
Claim shall receive on a Pro Rata basis its
share of the Cricket General Unsecured Creditor
Distribution.
5 Intercompany Claims Impaired; each Holder of an Allowed Class 5 0%
Claim shall receive the Intercompany Release as
of the Initial Distribution Date.
6 Old Common Stock of Impaired; each Holder of an Allowed Class 6 0%
Cricket and Securities Interest shall receive no Cash or property on
Claims against Cricket account of such Interest.
7 Old Stock Rights in Impaired; each Holder of an Allowed Class 7 0%
Cricket and All Claims Interest shall receive no Cash or property on
Arising Out of Such Old account of such Interest.
Stock Rights
CLAIMS AGAINST AND INTERESTS IN LICENSE HOLDING COMPANIES (APPLICABLE TO EACH
LICENSE HOLDING COMPANY)
TYPE OF ALLOWED ESTIMATED
CLASS CLAIM OR INTEREST TREATMENT RECOVERY
- ----- ----------------- --------- ---------
- Administrative Claims Paid in full in Cash by the applicable 100%
Reorganized License Holding Company on
the Effective Date or as soon as
practicable thereafter (unless the Holder
of a particular Claim and the applicable
License Holding Company agree to some
other treatment), or in accordance with
the terms and conditions of transactions
or agreements relating to obligations
incurred in the ordinary course of
business during the pendency of the
Chapter 11 Cases.
33
TYPE OF ALLOWED ESTIMATED
CLASS CLAIM OR INTEREST TREATMENT RECOVERY
- ----- ----------------- --------- ---------
- Priority Tax Claims Paid in full in Cash by the applicable 100%
Reorganized License Holding Company on the
Effective Date or as soon as practicable
thereafter.
SECURED CLAIMS:
1A Old Vendor Debt Claim Impaired; on the Effective Date or as soon as 30-37%
practicable thereafter, each Holder of an
Allowed Old Vendor Debt Claim shall receive, on
a Pro Rata basis, the Old Vendor Debt
Distribution.
1B FCC Claims On the Effective Date or as soon thereafter as 100%
practicable, the Holder of the FCC Claims shall
be Reinstated. The Holder of the FCC Claims
will be deemed Unimpaired.
2A et Other Secured Unimpaired if paid in full in Cash or 100%
seq. Claims Reinstated on the Effective Date or as soon as
practicable thereafter; Impaired if Holder of
Allowed Class 2A et seq. Claim receives
alternative treatment. Each Holder of an
Allowed Class 2A et seq. Claim shall, in the
discretion of the Debtor with the consent of
the Informal Vendor Debt Committee, receive any
one or a combination of any of the following:
(i) Cash in an amount equal to such Allowed
Class 2A et seq. Claim; (ii) deferred Cash
payments totaling at least the Allowed amount
of such Allowed Class 2A et seq. Claim, of a
value, as of the Effective Date, of at least
the value of such Holder's interest in the
Collateral securing the Allowed Class 2A et
seq. Claim; (iii) the Collateral securing such
Holder's Allowed Class 2A et seq. Claim;
(iv) payments or Liens amounting to the
indubitable equivalent of the value of such
Holder's interest in the Collateral securing
the Allowed Class 2A et seq. Claim;
(v) Reinstatement of such
34
TYPE OF ALLOWED ESTIMATED
CLASS CLAIM OR INTEREST TREATMENT RECOVERY
- ----- ----------------- --------- ---------
Class 2A et seq. Claim; or (vi) such
other treatment as the Debtor and such
Holder shall have agreed upon in writing.
The Debtor will make the foregoing
election and provide notice of such
election to the applicable Holder of an
Allowed Class 2A et seq. Claim no later
than 14 days prior to the Voting
Deadline. To the extent the Debtor elects
clause (i), (ii), (iv), (v) or (vi)
above, any liability associated with such
treatment shall be satisfied with funds
from Cricket.
UNSECURED CLAIMS:
3 Priority Claims Unimpaired; paid in full by the applicable 100%
Reorganized License Holding Company on or
before the later of (i) the Effective Date or
as soon as practicable thereafter, (ii) the
date such Claim becomes an Allowed Claim and
(iii) the date that such Claim would be paid in
accordance with the terms and conditions of any
agreements or understandings relating thereto
between the applicable License Holding Company
and the Holder of such Claim.
4 General Unsecured Claims Impaired; each Holder of an Allowed Class 4 0%
Claim to receive no Cash or property on account
of such Claims.
5 Intercompany Claims Impaired; each Holder of an Allowed Class 5 0%
Claim to receive the Intercompany Release as of
the Initial Distribution Date.
6 Old License Holding Impaired; each Holder of an Allowed Class 6 0%
Company Common Stock and Interest shall retain no Cash or property on
Securities Claims account of such Interest.
Against License Holding
Company
35
TYPE OF ALLOWED ESTIMATED
CLASS CLAIM OR INTEREST TREATMENT RECOVERY
- ----- ----------------- --------- ---------
7 Old Stock Rights in Impaired; each Holder of an Allowed Class 7 0%
License Holding Company Interest shall receive no Cash or property on
and All Claims Arising account of such Interest.
Out of Such Old Stock
Rights
CLAIMS AGAINST AND INTERESTS IN PROPERTY HOLDING COMPANIES (APPLICABLE TO EACH
PROPERTY HOLDING COMPANY)
TYPE OF ALLOWED ESTIMATED
CLASS CLAIM OR INTEREST TREATMENT RECOVERY
- ----- ----------------- --------- ---------
- Administrative Claims Paid in full in Cash by the applicable 100%
Reorganized Property Holding Company on
the Effective Date or as soon as
practicable thereafter (unless the Holder
of a particular Claim and the applicable
Property Holding Company agree to some
other treatment), or in accordance with
the terms and conditions of transactions
or agreements relating to obligations
incurred in the ordinary course of
business during the pendency of the
Chapter 11 Cases.
- Priority Tax Claims Paid in full in Cash by the applicable 100%
Reorganized Property Holding Company on the
Effective Date or as soon as practicable
thereafter.
SECURED CLAIMS:
1A Old Vendor Debt Claims Impaired; on the Effective Date or as soon as 30-37%
practicable thereafter, each Holder of an
Allowed Old Vendor Debt Claim shall receive, on
a Pro Rata basis, the Old Vendor Debt
Distribution.
2A et Other Secured Unimpaired if paid in full in Cash or 100%
seq. Claims Reinstated on the Effective Date or as soon as
practicable thereafter; Impaired if Holder of
Allowed Class 2A et seq. Claim receives
alternative treatment. Each Holder of an
Allowed Class 2A et
36
TYPE OF ALLOWED ESTIMATED
CLASS CLAIM OR INTEREST TREATMENT RECOVERY
- ----- ----------------- --------- ---------
seq. Claim shall, in the discretion of
the Debtor with the consent of the
Informal Vendor Debt Committee, receive
any one or a combination of any of the
following: (i) Cash in an amount equal
to such Allowed Class 2A et seq. Claim;
(ii) deferred Cash payments totaling at
least the Allowed amount of such Allowed
Class 2A et seq. Claim, of a value, as
of the Effective Date, of at least the
value of such Holder's interest in the
Collateral securing the Allowed Class
2A et seq. Claim; (iii) the Collateral
securing such Holder's Allowed Class
2A et seq. Claim; (iv) payments or Liens
amounting to the indubitable equivalent
of the value of such Holder's interest in
the Collateral securing the Allowed Class
2A et seq. Claim; (v) Reinstatement of
such Class 2A et seq. Claim; or (vi) such
other treatment as the Debtor and such
Holder shall have agreed upon in writing.
The Debtor will make the foregoing
election and provide notice of such
election to the applicable Holder of an
Allowed Class 2A et seq. Claim no later
than 14 days prior to the Voting
Deadline.
UNSECURED CLAIMS:
3 Priority Claims Unimpaired; paid in full by the applicable 100%
Reorganized Property Holding Company on or
before the later of (i) the Effective Date or
as soon as practicable thereafter, (ii) the
date such Claim becomes an Allowed Claim and
(iii) the date that such Claim would be paid in
accordance with the terms and conditions of any
agreements or understandings relating thereto
between the applicable Property Holding Company
and the Holder of such Claim.
37
TYPE OF ALLOWED ESTIMATED
CLASS CLAIM OR INTEREST TREATMENT RECOVERY
- ----- ----------------- --------- ---------
4 General Unsecured Claims Impaired; each Holder of an Allowed Class 4 0%
Claim to receive no Cash or property on account
of such Claim.
5 Intercompany Claims Impaired; each Holder of an Allowed Class 5 0%
Claim to receive the Intercompany Release as of
the Initial Distribution Date.
6 Old Property Holding Impaired; each Holder of an Allowed Class 6 0%
Company Common Stock and Interest shall receive no Cash or property on
Securities Claims account of such Interest.
Against Property Holding
Company
7 Old Stock Rights in Impaired; each Holder of an Allowed Class 7 0%
Property Holding Company Interest shall receive no Cash or property on
and All Claims Arising account of such Interest.
Out of Such Old Stock
Rights
CLAIMS AGAINST AND INTERESTS IN OTHER SUBSIDIARIES (APPLICABLE TO EACH OTHER
SUBSIDIARY)
TYPE OF ALLOWED ESTIMATED
CLASS CLAIM OR INTEREST TREATMENT RECOVERY
- ----- ----------------- --------- ---------
- Administrative Claims Paid in full in Cash by the applicable 100%
Reorganized Other Subsidiary on the
Effective Date or as soon as practicable
thereafter (unless the Holder of a
particular Claim and the applicable Other
Subsidiary agree to some other
treatment), or in accordance with the
terms and conditions of transactions or
agreements relating to obligations
incurred in the ordinary course of
business during the pendency of the
Chapter 11 Cases.
- Priority Tax Claims Paid in full in Cash by the applicable 100%
Reorganized Other Subsidiary on the Effective
Date or as soon as practicable thereafter.
38
TYPE OF ALLOWED ESTIMATED
CLASS CLAIM OR INTEREST TREATMENT RECOVERY
- ----- ----------------- --------- ---------
SECURED CLAIMS:
1A et Other Secured Unimpaired if paid in full in Cash or 100%
seq. Claims Reinstated on the Effective Date or as soon as
practicable thereafter; Impaired if Holder of
Allowed Class 1A et seq. Claim receives
alternative treatment. Each Holder of an
Allowed Class 1A et seq. Claim shall, in the
discretion of the Debtor with the consent of
the Informal Vendor Debt Committee, receive any
one or a combination of any of the following:
(i) Cash in an amount equal to such Allowed
Class 1A et seq. Claim; (ii) deferred Cash
payments totaling at least the Allowed amount
of such Allowed Class 1A et seq. Claim, of a
value, as of the Effective Date, of at least
the value of such Holder's interest in the
Collateral securing the Allowed Class 1A et
seq. Claim; (iii) the Collateral securing such
Holder's Allowed Class 1A et seq. Claim;
(iv) payments or Liens amounting to the
indubitable equivalent of the value of such
Holder's interest in the Collateral securing
the Allowed Class 1A et seq. Claim;
(v) Reinstatement of such Class 1A et seq.
Claim; or (vi) such other treatment as the
Debtor and such Holder shall have agreed upon
in writing. The Debtor will make the foregoing
election and provide notice of such election to
the applicable Holder of an Allowed Class 1A et
seq. Claim no later than 14 days prior to the
Voting Deadline. To the extent the Debtor
elects clause (i), (ii), (iv), (v) or (vi)
above, any liability associated with such
treatment shall be satisfied with funds from
Cricket.
39
TYPE OF ALLOWED ESTIMATED
CLASS CLAIM OR INTEREST TREATMENT RECOVERY
- ----- ----------------- --------- ---------
UNSECURED CLAIMS:
2 Priority Claims Unimpaired; paid in full by the applicable 100%
Reorganized Other Subsidiary on or before the
later of (i) the Effective Date or as soon as
practicable thereafter, (ii) the date such
Claim becomes an Allowed Claim and (iii) the
date that such Claim would be paid in
accordance with the terms and conditions of any
agreements or understandings relating thereto
between the applicable Other Subsidiary and the
Holder of such Claim.
3 General Unsecured Claims Impaired; each Holder of an Allowed Class 3 0%
Claim to receive no Cash or property on account
of such Claims.
4 Intercompany Claims Impaired; each Holder of an Allowed Class 4 0%
Claim to receive the Intercompany Release as of
the Initial Distribution Date.
5 Old Other Subsidiary Impaired; each Holder of an Allowed Class 5 0%
Common Stock and Interest shall receive no Cash or property on
Securities Claims account of such Interest.
Against Other Subsidiary
6 Old Stock Rights in Impaired; each Holder of an Allowed Class 6 0%
Other Subsidiary and All Interest shall receive no Cash or property on
Claims Arising Out of account of such Interest.
Such Old Stock Rights
GENERAL PROVISIONS FOR TREATMENT OF CLAIMS AND INTERESTS
SECTION 3.01 UNCLASSIFIED CLAIMS (APPLICABLE TO ALL DEBTORS)
(a) Administrative Claims.
(i) General.
40
Subject to (x) the bar date provisions herein and (y)
additional requirements for professionals and certain other entities set forth
below, each of the Reorganized Debtors, as applicable, shall pay to each Holder
of an Allowed Administrative Claim, on account of its Administrative Claim and
in full satisfaction thereof, Cash equal to the Allowed amount of such
Administrative Claim on the Effective Date or as soon as practicable thereafter,
unless the Holder agrees or shall have agreed to other treatment of such Claim.
Payment on an Administrative Claim which arose in the ordinary course of each
Debtor's business will not be made until such payment would have become due in
the ordinary course of each Debtor's business or under the terms of the Claim in
the absence of the Chapter 11 Cases.
(ii) Payment Of Statutory Fees.
On or before the Effective Date, all fees payable pursuant to
28 U.S.C. Section 1930 shall be paid in Cash equal to the amount of such
Administrative Claim. The Debtors will pay quarterly fees to the U.S. Trustee
until entry of a final decree. In addition, the Debtors will file
post-Confirmation quarterly reports in conformance with the U.S. Trustee
Guidelines. The U.S. Trustee shall not be required to File a request for payment
of its quarterly fees, which will be deemed Administrative Claims against the
Debtors and their Estates.
(iii) Bar Date For Administrative Claims.
1) General Provisions.
Except for Administrative Claims of professionals requesting
compensation or reimbursement of expenses, which are addressed in Section
3.01(a)(iii)(2) below, and except as otherwise provided below, for (i) non-tax
liabilities incurred in the ordinary course of business by each Debtor in
Possession and (ii) Postpetition Tax Claims, requests for payment of
Administrative Claims must be Filed and served on counsel for each of the
Reorganized Debtors no later than (x) thirty (30) days after the Effective Date,
or (y) such later date, if any, as the Court shall order upon application made
prior to the end of such 30-day period. Holders of Administrative Claims
(including, without limitation, the Holders of any Claims for federal, state or
local taxes, but excluding claims of professionals requesting compensation or
reimbursement of expenses) that are required to File a request for payment of
such Claims and that do not File such requests by the applicable bar date shall
be forever barred from asserting such Claims against any of the Debtors or the
Reorganized Debtors or any of their respective properties.
2) Professionals.
(A) All professionals or other
Persons requesting compensation
or reimbursement of expenses
pursuant to any of sections
327, 328, 330, 331, 503(b) and
1103 of the Bankruptcy Code for
services rendered on or before
the Effective Date (including,
inter alia, any compensation
requested by any professional
or any other Person for making
a substantial contribution in
the Bankruptcy Cases) shall
File and serve on each of the
Reorganized Debtors, the
Informal Vendor Debt Committee
and the Official Committee (or,
if the Official
41
Committee has disbanded, the
Leap Creditor Trust Trustee) an
application for final allowance
of compensation and
reimbursement of expenses no
later than (i) sixty (60) days
after the Effective Date, or
(ii) such later date as the
Court shall order upon
application made prior to the
end of such 60-day period. All
compensation and reimbursement
of expenses for professionals
incurred by or on behalf of
Leap shall be paid for by Leap.
All compensation and
reimbursement of expenses for
professionals incurred by or on
behalf of Debtors other than
Leap shall be paid for by
Cricket.
(B) Objections to applications of
professionals or other Persons
for compensation or
reimbursement of expenses must
be Filed and served on the
Reorganized Debtors, counsel
for the Reorganized Debtors,
the Informal Vendor Debt
Committee, the Official
Committee (or, if the Official
Committee has disbanded, the
Leap Creditor Trust Trustee)
and the professionals to whose
application the objections are
addressed on or before (i)
sixty (60) days after such
application is Filed and served
or (ii) such later date as the
Court shall order upon
application made prior to the
end of such 60-day period or
upon agreement between the
Reorganized Debtors and the
affected professional.
(C) On or prior to the Confirmation
Date, each professional seeking
compensation or reimbursement
under section 327, 328, 330,
331, 503(b), or 1103 of the
Bankruptcy Code shall provide
the Reorganized Debtors, the
Informal Vendor Debt Committee
and the Official Committee with
a non-binding, written estimate
of the amount of its requested
compensation and reimbursement
through the Effective Date. On
the Effective Date, Reorganized
Cricket shall establish a
reserve for professionals
providing services to Debtors
other than Leap (the
"Professional Claims Reserve")
in an amount equal to the
aggregate amount of such
estimated compensation or
reimbursements, unless
otherwise previously paid by
the Debtors. The funds in the
Professional Claims Reserve
shall be used solely for the
payment of Allowed professional
fee claims for professionals
providing services to Debtors
other than Leap. If an
applicable professional fails
to submit an estimate
42
of its fees in accordance with
this section, the Reorganized
Debtors shall not pay such
professional's Allowed
professional fee claim from the
Professional Claims Reserve but
rather shall pay such claim
from any other source available
to such Reorganized Debtors.
The foregoing notwithstanding,
if an applicable professional
submits a non-binding, written
estimate of his or her fees and
reimbursable expenses in
accordance with this section,
under no circumstances shall
such submission be construed to
limit the source of such
professional's compensation and
reimbursement solely to the
funds set aside in the
Professional Claims Reserve,
nor shall such submission be
construed as a maximum or cap
on the amount of compensation
and expense reimbursement
ultimately payable to such
professional.
(D) Any professional fees and
reimbursements or expenses
incurred by the Reorganized
Debtors subsequent to the
Effective Date may be paid by
the Reorganized Debtors without
application to or Order of the
Court. The costs of the Leap
Creditor Trust, including
without limitation, the fees
and expenses of the Leap
Creditor Trust Trustee and any
professionals retained by the
Leap Creditor Trust Trustee,
shall be borne entirely by the
Leap Creditor Trust.
43
(iv) Reserve for Leap Administrative and
Priority Claims.
In connection with the Leap General Unsecured Claim Cash
Distribution, prior to the Initial Distribution Date, Leap shall establish an
appropriate reserve in an amount to be agreed upon by Leap and the Official
Committee, to satisfy Allowed Administrative Claims against Leap through and
including the Effective Date (including Claims for compensation and
reimbursement of expenses by professionals providing services to Leap) and
Allowed Priority Claims against Leap. If and to the extent that such reserves
are insufficient to satisfy all such Allowed Administrative Claims against Leap
and Allowed Priority Claims against Leap, such Claims shall be satisfied by
assets transferred or transferable to the Leap Creditor Trust that have not then
been distributed to holders of beneficial interests in the Leap Creditor Trust.
Following the Effective Date, after the satisfaction of all Allowed
Administrative Claims and Allowed Priority Claims against Leap and the
resolution of all Disputed Administrative Claims and Disputed Priority Claims
against Leap, any remaining Cash held in the reserve of Reorganized Leap will be
distributed to the Leap Creditor Trust. Under no circumstances shall Reorganized
Leap, Cricket or any other Debtor or Reorganized Debtor be liable in any way for
any Claims against Leap, including such Allowed Administrative Claims and
Allowed Priority Claims.
(v) Reserve for Cricket Companies'
Administrative and Priority Claims.
Prior to the Confirmation Date, Cricket shall establish an
appropriate reserve in an amount to be agreed upon by Cricket and the Informal
Vendor Debt Committee, to satisfy Allowed Administrative Claims against Cricket
and the other Cricket companies through and including the Effective Date
(including Claims for compensation and reimbursement of expenses by
professionals providing services) and Allowed Priority Claims against Cricket
and the other Cricket companies. If and to the extent that such reserves are
insufficient to satisfy all such Allowed Administrative Claims and Allowed
Priority Claims, such Claims shall be satisfied by other assets of Cricket.
Following the Effective Date, after the satisfaction of all Allowed
Administrative Claims and Allowed Priority Claims and the resolution of all
Disputed Administrative Claims and Disputed Priority Claims, any remaining Cash
held in the reserve of Reorganized Cricket will become available to Reorganized
Cricket for use in its discretion. Under no circumstances shall Leap or the Leap
Creditor Trust be liable in any way for any Claims against non-Leap Debtors,
including any such Allowed Administrative Claims and Allowed Priority Claims.
3) Ordinary Course Liabilities.
Holders of Administrative Claims based on liabilities incurred
post-petition in the ordinary course of the Debtors' business (other than Claims
of governmental units for taxes or Claims and/or penalties related to such
taxes) shall not be required to File any request for payment of such Claims.
Such Administrative Claims shall be assumed and paid by Reorganized Debtors, as
appropriate, 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.
4) Tax Claims.
44
All requests for payment of Postpetition Tax Claims, for which
no bar date has otherwise been previously established, must be Filed on or
before the later of (i) sixty (60) days following the Effective Date; and (ii)
120 days following the filing of the tax return for such taxes for such tax year
or period with the applicable governmental unit. Any Holder of any Postpetition
Tax Claim that is required to File a request for payment of such taxes and that
does not File such a Claim by the applicable bar date shall be forever barred
from asserting any such Postpetition Tax Claim against any of the Debtors or
Reorganized Debtors, or any of their respective properties, whether any such
Postpetition Tax Claim is deemed to arise prior to, on, or subsequent to, the
Effective Date. The Debtors are paying all Postpetition Tax Claims as they come
due; however, certain taxing authorities conduct audits which may result in a
postpetition tax liability of which the Debtors are currently unaware.
(b) Treatment Of Priority Tax Claims.
Except as otherwise agreed to by the Reorganized Debtors and
the applicable taxing agency, the Reorganized Debtors, as appropriate, shall pay
to each Holder of an Allowed Priority Tax Claim deferred Cash payments, over a
period not exceeding six years from the date of assessment of such Claim, in an
aggregate amount equal to the amount of such Allowed Priority Tax Claim, plus
interest from the Effective Date on the unpaid portion of such Allowed Priority
Tax Claim (without penalty of any kind) at the rate prescribed below. Payment of
the amount of each such Allowed Priority Tax Claim shall be made in equal
semiannual installments payable on June 1 and December 1, with the first
installment due on June 1 or December 1 after the latest of: (a) the Effective
Date, (b) 30 days after the date on which an Order allowing such Priority Tax
Claim becomes a Final Order, and (c) such other time or times as may be agreed
to by the Holder of such Claim and the applicable Reorganized Debtor. Each
installment shall include interest on the unpaid portion of such Allowed
Priority Tax Claim, without penalty of any kind, at the rate of 8 1/4% per annum
or as otherwise established by the Court; provided, however, that the
Reorganized Debtors, as appropriate, shall have the right to pay any Allowed
Priority Tax Claim, or any remaining balance of such Claim, in full, at any time
on or after the Effective Date, without premium or penalty of any kind.
SECTION 3.02 TREATMENT OF CLASSIFIED CLAIMS AGAINST AND INTERESTS IN LEAP
Leap Class 1A - GLH Claim. On the Effective Date, or as soon
as practicable thereafter, the Holder of the Class 1A GLH Claim shall, in full
satisfaction, settlement, release and discharge of and in exchange for such
Secured Claim, receive the GLH Collateral. The Holder of the Allowed Secured
Claim in Class 1A shall be Impaired and entitled to vote to accept or reject the
Plan.
Leap Class 1B - 12 1/2% Senior Secured Claim. On the Initial
Distribution Date, or as soon as practicable thereafter, each Holder of a Class
1B 12 1/2% Senior Secured Claim shall receive, in full satisfaction, settlement,
release and discharge of and in exchange for its Claim, on a Pro Rata basis, the
12 1/2% Senior Secured Claim Distribution (approximately $200,00 in the
aggregate). In addition, by order entered by the Court on April 18, 2003, each
Holder of a Class 1B 12 1/2% Senior Secured Claim, received, on a Pro Rata
basis, the Cash in the Senior Notes Pledged Account reflecting the amount of
interest owing as of April 15, 2003. Leap Class 1B is Unimpaired and shall be
deemed to have voted to accept the Plan.
45
Leap Class 1C - Old Vendor Debt Claim. The Holders of Old
Vendor Debt have secured claims against Leap and its Estate because Leap pledged
the stock of substantially all of the License Holding Companies owned by Leap as
security for the Old Vendor Debt. On the Initial Distribution Date, each Holder
of a Class 1C Old Vendor Debt Claim shall, in full satisfaction, settlement,
release and discharge of and in exchange for its Claim against Leap and its
Estate, receive, the benefit of the Intercompany Releases, and on the Effective
Date or as soon as practicable thereafter, on a Pro Rata basis, the Old Vendor
Debt Distribution. Leap Class 1C is Impaired and shall be entitled to vote to
accept or reject the Plan.
Leap Class 2A et seq. - Other Secured Claims. Class 2A et seq.
consists of all other Secured Claims against Leap. Leap currently believes that,
as of the Petition Date, Wells Fargo Bank, N.A., Travelers Casualty & Surety Co.
of America and GE Capital Financial held certificates of deposit or money market
funds to secure obligations under letters of credit, surety bonds and employee
credit cards, respectively. Leap expects that the claims of the foregoing Class
2A, 2B and 2C members shall be Reinstated. Leap Class 2A, 2B and 2C Claims are
Unimpaired and shall be deemed to have voted to accept the Plan.
This Class will be further divided into subclasses designated
by letters of the alphabet (CLASS 2D, CLASS 2E, and so on), so that each Holder
of any Secured Claim is in a Class by itself, except to the extent that there
are Secured Claims that are substantially similar to each other and may be
included within a single Class. Each Allowed Secured Claim in Class 2A et seq.
shall, in the discretion of the Debtor with the consent of the Informal Vendor
Debt Committee, receive, in full satisfaction, settlement, release and discharge
of and in exchange for its Claim, any one or a combination of any of the
following: (i) Cash in an amount equal to such Allowed Class 2A et seq. Claim;
(ii) deferred Cash payments totaling at least the Allowed amount of such Allowed
Class 2A et seq. Claim, of a value, as of the Effective Date, of at least the
value of such Holder's interest in the Collateral securing the Allowed Class 2A
et seq. Claim; (iii) the Collateral securing such Holder's Allowed Class 2A et
seq. Claim; (iv) payments or Liens amounting to the indubitable equivalent of
the value of such Holder's interest in the Collateral securing the Allowed Class
2A et seq. Claim; (v) Reinstatement of such Class 2A et seq. Claim; or (vi) such
other treatment as the Debtor and such Holder shall have agreed upon in writing.
The Debtor will make the foregoing election and provide notice of such election
to the applicable Holder of an Allowed Class 2A et seq. Claim no later than 14
days prior to the Voting Deadline. To the extent the Debtor elects clause (i),
(ii), (iv), (v) or (vi) above, any liability associated with such treatment
shall be satisfied with funds from Cricket.
Allowed Claims in Class 2A et seq. that are paid in full in
Cash or Reinstated on the Effective Date or as soon as practicable thereafter
are Unimpaired under the Plan and the Holders of such Allowed Claims in Class 2A
et seq. will be deemed to have voted to accept the Plan. Allowed Claims in Class
2A et seq. that receive any alternative treatment are Impaired and therefore
entitled to vote to accept or reject the Plan.
Leap Class 3 - Priority Claims. The Plan provides that unless
otherwise agreed to by Leap and the applicable Holder of a Claim, each Holder of
an Allowed Claim in Class 3 will be paid the Allowed Amount of such Claim in
full in Cash by Leap on or before the later of (i) the Effective Date or as soon
as practicable thereafter, (ii) the date such Claim becomes an Allowed Claim and
(iii) the date that such Claim would be paid in accordance with any terms and
conditions of any agreements or understandings relating thereto between Leap and
the
46
Holder of such Claim. Allowed Claims in Class 3 are Unimpaired under the Plan
and the Holders of Allowed Claims in Class 3 will be deemed to have accepted the
Plan.
Leap Class 4 - General Unsecured Claims. On the Initial
Distribution Date, each Holder of an Allowed Class 4 Claim shall, in full
satisfaction, settlement, release, discharge of and in exchange for such Claim
(except as otherwise provided in the Plan), receive a Pro Rata distribution of
beneficial interests in the Leap Creditor Trust and the Leap Creditor Trust
shall receive the Leap General Unsecured Claim Cash Distribution. On the
Effective Date, Reorganized Leap shall transfer to the Leap Creditor Trust the
Leap General Unsecured Claim Equity Distribution (for Distribution to the
Holders) and the Leap Creditor Trust Assets. After the satisfaction of all
Allowed Administrative Claims and Priority Claims against Leap, any remaining
Cash held in reserve by Reorganized Leap will be distributed to the Leap
Creditor Trust. If any Leap Creditor Trust Assets are converted to Cash on or
after the Initial Distribution Date but prior to the Effective Date, the Cash
proceeds shall be transferred to the Leap Creditor Trust as soon as practicable
upon such monetization, notwithstanding the fact that the Effective Date has not
occurred. Class 4 is Impaired and therefore entitled to vote to accept or reject
the Plan.
Leap Class 4A - Subordinated General Unsecured Claims of MCG
PCS, Inc. Leap will file a motion with the Court seeking to subordinate the
General Unsecured Claims of MCG PCS, Inc. because such Claims arose in
connection with the purchase and sale of an equity security of Leap. If MCG
PCS's Claims are subordinated, all Allowed Class 4 Claims against Leap would
have to be paid in full prior to any payments to satisfy the Allowed Class 4A
Claims of MCG PCS, Inc. Because Allowed Class 4 Claims against Leap will not be
paid in full under the Plan, each Holder of an Allowed Class 4A Claim shall not
receive any property or Cash under the Plan on account of such Claims. Class 4A
is Impaired under the Plan and deemed to have voted to reject the Plan. If the
Court determines by Final Order that MCG PCS's General Unsecured Claims should
not be subordinated, MCG PCS and its General Unsecured Claims will be treated as
a member of Leap Class 4 to the extent such Claims are Allowed.
Leap Class 5 - Intercompany Claim. Each Holder of an Allowed
Class 5 Claim shall, in full satisfaction, settlement, release, discharge of and
in exchange for such Claim, receive the Intercompany Release on account of such
Claim as of the Initial Distribution Date. Class 5 is Impaired under the Plan
and therefore entitled to vote to accept or reject the Plan.
Leap Class 6 - Old Leap Common Stock and Securities Claims
Against Leap. Each Holder of an Allowed Class 6 Interest shall not receive or
retain any property or Cash under the Plan on account of such Interest. Class 6
is Impaired under the Plan and deemed to have voted to reject the Plan.
Leap Class 7 - Interests of Holders of Old Stock Rights and
All Claims Arising Out of Such Old Stock Rights. Each Holder of an Allowed Class
7 Interest shall not receive or retain any property or Cash under the Plan on
account of such Interest. Class 7 is Impaired under the Plan and deemed to have
voted to reject the Plan.
SECTION 3.03 TREATMENT OF CLASSIFIED CLAIMS AGAINST AND INTERESTS IN CCH
CCH Class 1A - Old Vendor Debt Claim. On the Effective Date,
or as soon as practicable thereafter, each Holder of an Allowed Class 1A Claim
shall, in full satisfaction,
47
settlement, release, discharge of and in exchange for such Claim, receive a Pro
Rata share of the Old Vendor Debt Distribution. Class 1A is Impaired and
entitled to vote to accept or reject the Plan.
CCH Class 2A et seq. - Other Secured Claims. Class 2A et seq.
consists of all other Secured Claims against CCH. CCH currently does not believe
any such Holders exist.
This Class will be further divided into subclasses designated
by letters of the alphabet (CLASS 2B, CLASS 2C, and so on), so that each Holder
of any Secured Claim is in a Class by itself, except to the extent that there
are Secured Claims that are substantially similar to each other and may be
included within a single Class. Each Allowed Secured Claim in Class 2A et seq.
shall, in the discretion of the Debtor with the consent of the Informal Vendor
Debt Committee, receive, in full satisfaction, settlement, release and discharge
of and in exchange for its Claim, any one or a combination of any of the
following: (i) Cash in an amount equal to such Allowed Class 2A et seq. Claim;
(ii) deferred Cash payments totaling at least the Allowed amount of such Allowed
Class 2A et seq. Claim, of a value, as of the Effective Date, of at least the
value of such Holder's interest in the Collateral securing the Allowed Class 2A
et seq. Claim; (iii) the Collateral securing such Holder's Allowed Class 2A et
seq. Claim; (iv) payments or Liens amounting to the indubitable equivalent of
the value of such Holder's interest in the Collateral securing the Allowed Class
2A et seq. Claim; (v) Reinstatement of such Class 2A et seq. Claim; or (vi) such
other treatment as the Debtor and such Holder shall have agreed upon in writing.
The Debtor will make the foregoing election and provide notice of such election
to the applicable Holder of an Allowed Class 2A et seq. Claim no later than 14
days prior to the Voting Deadline. To the extent the Debtor elects clause (i),
(ii), (iv), (v) or (vi) above, any liability associated with such treatment
shall be satisfied with funds from Cricket.
Allowed Claims in Class 2A et seq. that are paid in full in
Cash or Reinstated on the Effective Date or as soon as practicable thereafter
are Unimpaired under the Plan and the Holders of such Allowed Claims in Class 2A
et seq. will be deemed to have voted to accept the Plan. Allowed Claims in Class
2A et seq. that receive any alternative treatment are Impaired and therefore
entitled to vote to accept or reject the Plan.
CCH Class 3 - Priority Claims. Unless otherwise agreed to by
CCH and the applicable Holder of a Claim, each Holder of an Allowed Claim in
Class 3 will, in full satisfaction, settlement, release, discharge of and in
exchange for such Claim, be paid the Allowed Amount of such Claim in full in
Cash by Reorganized CCH on or before the later of (i) the Effective Date or as
soon as practicable thereafter, (ii) the date such Claim becomes an Allowed
Claim and (iii) the date that such Claim would be paid in accordance with any
terms and conditions of any agreements or understandings relating thereto
between CCH and the Holder of such Claim. Allowed Claims in Class 3 are
Unimpaired under the Plan and the Holders of Allowed Claims in Class 3 will be
deemed to have accepted the Plan.
CCH Class 4 - General Unsecured Claims. Holders of Allowed
Class 4 Claims shall not receive any property or Cash on account of such Claims.
Class 4 is Impaired under the Plan and deemed to have voted to reject the Plan.
CCH Class 5 - Intercompany Claim. Each Holder of an Allowed
Class 5 Claim shall, in full satisfaction, settlement, release, discharge of and
in exchange for such Claim,
48
receive the Intercompany Release on account of such Claim as of the Initial
Distribution Date. Class 5 is Impaired under the Plan and therefore entitled to
vote to accept or reject the Plan.
CCH Class 6 - Old Common Stock of CCH and Securities Claims.
Holders of Allowed Class 6 Interests shall not receive any property or Cash on
account of such Interests. Class 6 is Impaired and deemed to have voted to
reject the Plan.
CCH Class 7 - Interests of Holders of Old Stock Rights and All
Claims Arising Out of Such Old Stock Rights. Each Holder of an Allowed Class 7
Interest shall not receive or retain any property or Cash under the Plan on
account of such Interest. Class 7 is Impaired under the Plan and deemed to have
voted to reject the Plan. CCH currently does not believe any such Holders exist.
SECTION 3.04 TREATMENT OF CLASSIFIED CLAIMS AGAINST AND INTERESTS IN
CRICKET
Cricket Class 1A - Old Vendor Debt Claim. On the Effective
Date, or as soon as practicable thereafter, each Holder of an Allowed Class 1A
Claim shall, in full satisfaction, settlement, release, discharge of and in
exchange for such Claim, receive from Cricket a Pro Rata share of the Old Vendor
Debt Distribution. Class 1A is Impaired and entitled to vote to accept or reject
the Plan.
Cricket Class 2A et seq. - Other Secured Claims. Class 2A et
seq. consists of all other Secured Claims against Cricket. Cricket believes
that, as of the Petition Date, Wells Fargo Bank, N.A. and Wells Fargo Merchant
Services LLC, and Travelers Casualty and Surety Co. of America, held security
interests in money market funds to secure obligations under credit card programs
and surety bonds, respectively. Cricket intends to Reinstate these Class 2A and
2B Claims. Cricket Class 2A and 2B Claims are Unimpaired and shall be deemed to
have voted to accept the Plan.
This Class will be further divided into subclasses designated
by letters of the alphabet (CLASS 2C, CLASS 2D, and so on), so that each Holder
of any Secured Claim is in a Class by itself, except to the extent that there
are Secured Claims that are substantially similar to each other and may be
included within a single Class. Each Allowed Secured Claim in Class 2A et seq.
shall, in the discretion of the Debtor with the consent of the Informal Vendor
Debt Committee, receive, in full satisfaction, settlement, release and discharge
of and in exchange for its Claim, any one or a combination of any of the
following: (i) Cash in an amount equal to such Allowed Class 2A et seq. Claim;
(ii) deferred Cash payments totaling at least the Allowed amount of such Allowed
Class 2A et seq. Claim, of a value, as of the Effective Date, of at least the
value of such Holder's interest in the Collateral securing the Allowed Class 2A
et seq. Claim; (iii) the Collateral securing such Holder's Allowed Class 2A et
seq. Claim; (iv) payments or Liens amounting to the indubitable equivalent of
the value of such Holder's interest in the Collateral securing the Allowed Class
2A et seq. Claim; (v) Reinstatement of such Class 2A et seq. Claim; or (vi) such
other treatment as the Debtor and such Holder shall have agreed upon in writing.
The Debtor will make the foregoing election and provide notice of such election
to the applicable Holder of an Allowed Class 2A et seq. Claim no later than 14
days prior to the Voting Deadline.
Allowed Claims in Class 2A et seq. that are paid in full in
Cash or Reinstated on the Effective Date or as soon as practicable thereafter
are Unimpaired under the Plan and the
49
Holders of such Allowed Claims in Class 2A et seq. will be deemed to have voted
to accept the Plan. Allowed Claims in Class 2A et seq. that receive any
alternative treatment are Impaired and therefore entitled to vote to accept or
reject the Plan.
Cricket Class 3 - Priority Claims. Unless otherwise agreed to
by the parties, each Holder of an Allowed Claim in Class 3 will, in full
satisfaction, settlement, release, discharge of and in exchange for such Claim,
be paid the Allowed Amount of such Claim in full in Cash by Reorganized Cricket
on or before the later of (i) the Effective Date or as soon as practicable
thereafter, (ii) the date such Claim becomes an Allowed Claim and (iii) the date
that such Claim would be paid in accordance with any terms and conditions of any
agreements or understandings relating thereto between Cricket and the Holder of
such Claim. Allowed Claims in Class 3 are Unimpaired under the Plan and the
Holders of Allowed Claims in Class 3 will be deemed to have accepted the Plan.
Cricket Class 4 - General Unsecured Claims. Holders of Allowed
Class 4 Claims shall, in full satisfaction, settlement, release, discharge of
and in exchange for such Claim, receive, on a Pro Rata basis, the Cricket
General Unsecured Creditor Distribution on account of such Claims. The Debtors
believe that there will be de minimus or no value distributed to Holders of
Allowed Class 4 Claims under the Cricket General Unsecured Creditor
Distribution. Class 4 is Impaired and therefore entitled to vote to accept or
reject the Plan.
Cricket Class 5 - Intercompany Claim. Each Holder of an
Allowed Class 5 Claim shall in full satisfaction, settlement, release, discharge
of and in exchange for such Claim, receive the Intercompany Release on account
of such Claim as of the Initial Distribution Date. Class 5 is Impaired under the
Plan and therefore entitled to vote to accept or reject the Plan.
Cricket Class 6 - Old Common Stock of Cricket and Securities
Claims. Holders of Allowed Class 6 Interests shall not receive any property or
Cash on account of such Interests. Class 6 is Impaired and deemed to have voted
to reject the Plan.
Cricket Class 7 - Interests of Holders of Old Stock Rights and
All Claims Arising Out of Such Old Stock Rights. Holders of Allowed Class 7
Interests shall not receive any property or Cash on account of such Interests.
Class 7 is Impaired and deemed to have voted to reject the Plan. Cricket does
not believe any such Holders exist.
SECTION 3.05 TREATMENT OF CLASSIFIED CLAIMS AGAINST AND INTERESTS IN
LICENSE HOLDING COMPANIES (APPLICABLE TO EACH LICENSE HOLDING
COMPANY)
License Holding Company Class 1A - Old Vendor Debt Claim. On
the Effective Date, or as soon as practicable thereafter, each Holder of an
Allowed Class 1A Claim shall, in full satisfaction, settlement, release,
discharge of and in exchange for such Claim, receive a Pro Rata share of the Old
Vendor Debt Distribution. Class 1A is Impaired and entitled to vote to accept or
reject the Plan.
License Holding Company Class 1B - FCC Claims. On the
Effective Date or as soon as practicable thereafter, the Holder of the FCC
Claims shall, in full satisfaction, settlement, release, discharge of and in
exchange for such Claim, be Reinstated. The Holder of the FCC Claims will be
deemed Unimpaired and to have voted to accept the Plan.
50
License Holding Company Class 2A et seq. - Other Secured
Claims. Class 2A et seq. consists of all other Secured Claims against a License
Holding Company. The License Holding Companies currently do not believe any such
Holders exist.
This Class will be further divided into subclasses designated
by letters of the alphabet (CLASS 2B, CLASS 2C, and so on), so that each Holder
of any Secured Claim is in a Class by itself, except to the extent that there
are Secured Claims that are substantially similar to each other and may be
included within a single Class. Each Allowed Secured Claim in Class 2A et seq.
shall, in the discretion of the Debtor with the consent of the Informal Vendor
Debt Committee, receive, in full satisfaction, settlement, release and discharge
of and in exchange for its Claim, any one or a combination of any of the
following: (i) Cash in an amount equal to such Allowed Class 2A et seq. Claim;
(ii) deferred Cash payments totaling at least the Allowed amount of such Allowed
Class 2A et seq. Claim, of a value, as of the Effective Date, of at least the
value of such Holder's interest in the Collateral securing the Allowed Class 2A
et seq. Claim; (iii) the Collateral securing such Holder's Allowed Class 2A et
seq. Claim; (iv) payments or Liens amounting to the indubitable equivalent of
the value of such Holder's interest in the Collateral securing the Allowed Class
2A et seq. Claim; (v) Reinstatement of such Class 2A et seq. Claim; or (vi) such
other treatment as the Debtor and such Holder shall have agreed upon in writing.
The Debtor will make the foregoing election and provide notice of such election
to the applicable Holder of an Allowed Class 2A et seq. Claim no later than 14
days prior to the Voting Deadline. To the extent the Debtor elects clause (i),
(ii), (iv), (v) or (vi) above, any liability associated with such treatment
shall be satisfied with funds from Cricket.
Allowed Claims in Class 2A et seq. that are paid in full in
Cash or Reinstated on the Effective Date or as soon as practicable thereafter
are Unimpaired under the Plan and the Holders of such Allowed Claims in Class 2A
et seq. will be deemed to have voted to accept the Plan. Allowed Claims in Class
2A et seq. that receive any alternative treatment are Impaired and therefore
entitled to vote to accept or reject the Plan.
License Holding Company Class 3 - Priority Claims. Unless
otherwise agreed to by the parties, each Holder of an Allowed Claim in Class 3
will, in full satisfaction, settlement, release, discharge of and in exchange
for such Claim, be paid the Allowed Amount of such Claim in full in Cash by the
applicable Reorganized License Holding Company on or before the later of (i) the
Effective Date or as soon as practicable thereafter, (ii) the date such Claim
becomes an Allowed Claim and (iii) the date that such Claim would be paid in
accordance with any terms and conditions of any agreements or understandings
relating thereto between the applicable License Holding Company and the Holder
of such Claim. Allowed Claims in Class 3 are Unimpaired under the Plan and the
Holders of Allowed Claims in Class 3 will be deemed to have accepted the Plan.
License Holding Company Class 4 - General Unsecured Claims.
Holders of Allowed Class 4 Claims shall not receive any property or Cash on
account of such Claims. Class 4 is Impaired and deemed to have voted to reject
the Plan.
License Holding Company Class 5 - Intercompany Claim. Each
Holder of an Allowed Class 5 Claim shall, in full satisfaction, settlement,
release, discharge of and in exchange for such Claim, receive the Intercompany
Release under the Plan on account of such
51
Claim as of the Initial Distribution Date. Class 5 is Impaired under the Plan
and therefore entitled to vote to accept or reject the Plan.
License Holding Company Class 6 - Old Common Stock of License
Holding Company and Securities Claims. Holders of Allowed Class 6 Interests
shall not receive any property or Cash on account of such Interests. Class 6 is
Impaired and deemed to have voted to reject the Plan.
License Holding Company Class 7 - Interests of Holders of Old
Stock Rights and All Claims Arising Out of Such Old Stock Rights. Holders of
Allowed Class 7 Interests shall not receive any property or Cash on account of
such Interests. Class 7 is Impaired and deemed to have voted to reject the Plan.
The License Holding Companies do not believe any such Holders exist.
SECTION 3.06 TREATMENT OF CLASSIFIED CLAIMS AGAINST AND INTERESTS IN
PROPERTY HOLDING COMPANIES (APPLICABLE TO EACH PROPERTY
HOLDING COMPANY)
Property Holding Company Class 1A - Vendor Debt Claim. On the
Effective Date, or as soon as practicable thereafter, each Holder of an Allowed
Class 1A Claim shall, in full satisfaction, settlement, release, discharge of
and in exchange for such Claim, receive a Pro Rata share of the Old Vendor Debt
Distribution. Class 1A is Impaired and entitled to vote to accept or reject the
Plan.
Property Holding Company Class 2A et seq. - Other Secured
Claims. Class 2A et seq. consists of all other Secured Claims against a Property
Holding Company. The Property Holding Companies currently do not believe any
such Holders exist.
This Class will be further divided into subclasses designated
by letters of the alphabet (CLASS 2B, CLASS 2C, and so on), so that each Holder
of any Secured Claim is in a Class by itself, except to the extent that there
are Secured Claims that are substantially similar to each other and may be
included within a single Class. Each Allowed Secured Claim in Class 2A et seq.
shall, in the discretion of the Debtor with the consent of the Informal Vendor
Debt Committee, receive, in full satisfaction, settlement, release and discharge
of and in exchange for its Claim, any one or a combination of any of the
following: (i) Cash in an amount equal to such Allowed Class 2A et seq. Claim;
(ii) deferred Cash payments totaling at least the Allowed amount of such Allowed
Class 2A et seq. Claim, of a value, as of the Effective Date, of at least the
value of such Holder's interest in the Collateral securing the Allowed Class 2A
et seq. Claim; (iii) the Collateral securing such Holder's Allowed Class 2A et
seq. Claim; (iv) payments or Liens amounting to the indubitable equivalent of
the value of such Holder's interest in the Collateral securing the Allowed Class
2A et seq. Claim; (v) Reinstatement of such Class 2A et seq. Claim; or (vi) such
other treatment as the Debtor and such Holder shall have agreed upon in writing.
The Debtor will make the foregoing election and provide notice of such election
to the applicable Holder of an Allowed Class 2A et seq. Claim no later than 14
days prior to the Voting Deadline.
Allowed Claims in Class 2A et seq. that are paid in full in
Cash or Reinstated on the Effective Date or as soon as practicable thereafter
are Unimpaired under the Plan and the Holders of such Allowed Claims in Class 2A
et seq. will be deemed to have voted to accept the
52
Plan. Allowed Claims in Class 2A et seq. that receive any alternative treatment
are Impaired and therefore entitled to vote to accept or reject the Plan.
Property Holding Company Class 3 - Priority Claims. Unless
otherwise agreed to by the parties, each Holder of an Allowed Claim in Class 3
will, in full satisfaction, settlement, release, discharge of and in exchange
for such Claim, be paid the Allowed Amount of such Claim in full in Cash by the
applicable Reorganized Property Holding Company on or before the later of (i)
the Effective Date or as soon as practicable thereafter, (ii) the date such
Claim becomes an Allowed Claim and (iii) the date that such Claim would be paid
in accordance with any terms and conditions of any agreements or understandings
relating thereto between the applicable Property Holding Company and the Holder
of such Claim. Allowed Claims in Class 3 are Unimpaired under the Plan and the
Holders of Allowed Claims in Class 3 will be deemed to have accepted the Plan.
Property Holding Company Class 4 - General Unsecured Claims.
Holders of Allowed Class 4 Claims shall not receive any property or Cash on
account of such Claims. Class 4 is Impaired and deemed to have voted to reject
the Plan.
Property Holding Company Class 5 - Intercompany Claim. Each
Holder of an Allowed Class 5 Claim shall, in full satisfaction, settlement,
release, discharge of and in exchange for such Claim, receive the Intercompany
Release under the Plan on account of such Claim as of the Initial Distribution
Date. Class 5 is Impaired under the Plan and therefore entitled to vote to
accept or reject the Plan.
Property Holding Company Class 6 - Old Common Stock of
Property Holding Company and Securities Claims. Holders of Allowed Class 6
Interests shall not receive any property or Cash on account of such Interests.
Class 6 is Impaired and deemed to have voted to reject the Plan.
Property Holding Company Class 7 - Interests of Holders of Old
Stock Rights and All Claims Arising Out of Such Old Stock Rights. Holders of
Allowed Class 7 Interests shall not receive any property or Cash on account of
such Interests. Class 7 is Impaired and deemed to have voted to reject the Plan.
The Property Holding Companies do not believe any such Holders exist.
SECTION 3.07 TREATMENT OF CLASSIFIED CLAIMS AGAINST AND INTERESTS IN OTHER
SUBSIDIARIES (APPLICABLE TO EACH OTHER SUBSIDIARY)
Other Subsidiary Class 1A et seq. - Other Secured Claims.
Class 1A et seq. consists of all other Secured Claims against an Other
Subsidiary. The Other Subsidiaries currently do not believe any such Holders
exist.
This Class will be further divided into subclasses designated
by letters of the alphabet (CLASS 1B, CLASS 1C, and so on), so that each Holder
of any Secured Claim is in a Class by itself, except to the extent that there
are Secured Claims that are substantially similar to each other and may be
included within a single Class. Each Allowed Secured Claim in Class 1A et seq.
shall, in the discretion of the Debtor with the consent of the Informal Vendor
Debt Committee, receive, in full satisfaction, settlement, release and discharge
of and in exchange for its Claim, any one or a combination of any of the
following: (i) Cash in an amount equal to such
53
Allowed Class 1A et seq. Claim; (ii) deferred Cash payments totaling at least
the Allowed amount of such Allowed Class 1A et seq. Claim, of a value, as of the
Effective Date, of at least the value of such Holder's interest in the
Collateral securing the Allowed Class 1A et seq. Claim; (iii) the Collateral
securing such Holder's Allowed Class 1A et seq. Claim; (iv) payments or Liens
amounting to the indubitable equivalent of the value of such Holder's interest
in the Collateral securing the Allowed Class 1A et seq. Claim; (v) Reinstatement
of such Class 1A et seq. Claim; or (vi) such other treatment as the Debtor and
such Holder shall have agreed upon in writing. The Debtor will make the
foregoing election and provide notice of such election to the applicable Holder
of an Allowed Class 1A et seq. Claim no later than 14 days prior to the Voting
Deadline. To the extent the Debtor elects clause (i), (ii), (iv), (v) or (vi)
above, any liability associated with such treatment shall be satisfied with
funds from Cricket.
Allowed Claims in Class 1A et seq. that are paid in full in
Cash or Reinstated on the Effective Date or as soon as practicable thereafter
are Unimpaired under the Plan and the Holders of such Allowed Claims in Class 1A
et seq. will be deemed to have voted to accept the Plan. Allowed Claims in Class
1A et seq. that receive any alternative treatment are Impaired and therefore
entitled to vote to accept or reject the Plan.
Other Subsidiary Class 2 - Priority Claims. Unless otherwise
agreed to by the parties, each Holder of an Allowed Claim in Class 2 will, in
full satisfaction, settlement, release, discharge of and in exchange for such
Claim, be paid the Allowed Amount of such Claim in full in Cash by the
applicable Reorganized Other Subsidiary on or before the later of (i) the
Effective Date or as soon as practicable thereafter, (ii) the date such Claim
becomes an Allowed Claim and (iii) the date that such Claim would be paid in
accordance with any terms and conditions of any agreements or understandings
relating thereto between the applicable Other Subsidiary and the Holder of such
Claim. Allowed Claims in Class 2 are Unimpaired under the Plan and the Holders
of Allowed Claims in Class 2 will be deemed to have accepted the Plan.
Other Subsidiary Class 3 - General Unsecured Claims. Holders
of Allowed Class 3 Claims shall not receive any property or Cash on account of
such Claims. Class 3 is Impaired and deemed to have voted to reject the Plan.
Other Subsidiary Class 4 - Intercompany Claim. Each Holder of
an Allowed Class 4 Claim shall, in full satisfaction, settlement, release,
discharge of and in exchange for such Claim, receive the Intercompany Release
under the Plan on account of such Claim as of the Initial Distribution Date.
Class 4 is Impaired under the Plan and therefore entitled to vote to accept or
reject the Plan.
Other Subsidiary Class 5 - Old Common Stock of Other
Subsidiary and Securities Claims. Holders of Allowed Class 5 Interests shall not
receive any property or Cash on account of such Interests. Class 5 is Impaired
and deemed to have voted to reject the Plan.
Other Subsidiary Class 6 - Interests of Holders of Old Stock
Rights and All Claims Arising Out of Such Old Stock Rights. Holders of Allowed
Class 6 Interests shall not receive any property or Cash on account of such
Interests. Class 6 is Impaired and deemed to have voted to reject the Plan. The
Other Subsidiaries do not believe any such Holders exist.
54
ARTICLE IV.
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
SECTION 4.01 ASSUMPTION AND CURE
The Debtors are parties to thousands of executory contracts
and non-residential real property leases. On or before 17 days prior to the
Voting Deadline, the Debtors will File a schedule of such contracts and leases
that they intend to assume or assign to another Debtor, along with proposed cure
amounts that will be paid by the Reorganized Debtors (the "Assumption
Schedule"). Within one business day following the Filing of the Assumption
Schedule, the Debtors will serve the Assumption Schedule on the non-debtor
parties to the contracts and leases set forth on the Assumption Schedule, the
Official Committee and the Informal Vendor Debt Committee. Any party to a
contract or lease who objects to the listed cure amounts must File and serve an
objection on counsel no later than thirty (30) days after the Debtors File and
serve the Assumption Schedule. Failure to File and serve a timely objection
shall be deemed consent to the cure amounts listed on the Assumption Schedule.
Any cure amounts shall be the responsibility of Cricket.
Any monetary amount by which each executory contract and
unexpired lease to be assumed pursuant to the Plan is in default, if any, will
be satisfied, pursuant to Section 365(b)(1) of the Bankruptcy Code, at the
option of the applicable Reorganized Debtor: (a) by payment of the default
amount in Cash on the Effective Date or (b) on such other terms as are agreed to
by the parties to such executory contract or unexpired lease. All such payments
will be made by Reorganized Cricket. If there is a dispute regarding: (i) the
amount of any cure payment; (ii) the ability of a Reorganized Debtor to provide
"adequate assurance of future performance" (within the meaning of Section 365 of
the Bankruptcy Code) under the contract or lease to be assumed or assigned; or
(iii) any other matter pertaining to assumption, the cure payments required by
Section 365(b)(1) of the Bankruptcy Code will be made following the entry of a
Final Order resolving the dispute and approving the assumption.
The Confirmation Order will constitute an Order of the Court
approving the assumptions described on the Assumption Schedule, pursuant to
Section 365 of the Bankruptcy Code, as of the Effective Date.
Any executory contract or lease not listed on the Assumption
Schedule or that is not the subject of a motion to assume that is pending on the
Confirmation Date shall be deemed rejected as of the Confirmation Date. The
Debtors reserve the right to amend the Assumption Schedule at or prior to the
Confirmation Hearing. If the Debtors add a contract or lease to the Assumption
Schedule after the Assumption Schedule is originally Filed (as described above),
the Debtor party to the applicable contract or lease shall serve the non-Debtor
party to such contract or lease with notice (a) that the contract or lease has
been added to the Assumption Schedule and (b) of the Debtor's proposed cure
amount (the "Amended Assumption Schedule Notice"). The non-Debtor party shall
have 30 days after service of the Amended Assumption Schedule Notice to File and
serve an objection to the cure amount. To the extent the parties have a dispute
with respect to the cure amount, the Debtors shall create a reserve for the full
amount of the cure amount pending resolution of such dispute (either by
stipulation or court order).
55
SECTION 4.02 REJECTION AND DAMAGES
On or before 17 days prior to the Voting Deadline, the Debtors
will File a schedule of executory contracts and non-residential real property
leases that they intend to reject (the "Rejection Schedule"). Within one
business day following the Filing of the Rejection Schedule, the Debtors will
serve the Rejection Schedule on the non-debtor parties to the contracts and
leases, the Official Committee and the Informal Vendor Debt Committee. The
Rejection Schedule will indicate those contracts and leases that will be
rejected as of the Confirmation Date, and which will be rejected on or before
the Effective Date. The Debtors reserve the right to amend the Rejection
Schedule at or prior to the Confirmation Hearing. All Claims for damages arising
from the rejection of executory contracts or unexpired leases must be Filed with
the Court in accordance with the terms of the order authorizing such rejection,
or, if not rejected by separate order, within sixty (60) days from the entry of
the Confirmation Order. Any Claims not Filed within such time will be forever
barred from assertion against the Debtors, the Estates, the Reorganized Debtors
and the Leap Creditor Trust, unless a stipulation has been entered into with
respect to the rejection of such executory contract or unexpired lease by the
applicable Debtor and non-Debtor party. Each of the Allowed Claims arising from
the rejection of executory contracts or unexpired leases shall be treated as a
General Unsecured Claim of the applicable Debtor that was party to such contract
or lease.
Whether or not listed on the Rejection Schedule, any executory
contract or lease not listed on the Assumption Schedule or that is not the
subject of a motion to assume that is pending on the Confirmation Date shall be
deemed rejected as of the Confirmation Date. The Confirmation Order shall
constitute an Order of the Court approving such rejections described herein,
pursuant to Section 365 of the Bankruptcy Code.
ARTICLE V.
MEANS FOR EXECUTION
AND IMPLEMENTATION OF THE PLAN
SECTION 5.01 OVERVIEW OF PLAN IMPLEMENTATION
In sum, the Plan provides for a reorganization of the Debtors
under Reorganized Leap. However, Reorganized Leap will not retain the Leap
General Unsecured Claim Cash Distributions or the assets being transferred to
the Leap Creditor Trust, or be subject to any claims against or Interests in
Leap that are being discharged under the Plan. Except as otherwise set forth
herein, all Cash necessary for the Reorganized Debtors to make payments pursuant
to the Plan will be obtained from the Reorganized Debtors' cash balances or
borrowings and the operations of the Reorganized Debtors. All cash necessary for
the Leap Creditor Trust Trustee to make payments pursuant to the Plan will be
obtained from Leap Creditor Trust Assets.
SECTION 5.02 DISTRIBUTIONS
On the Effective Date, (i) the Old License Holding Company
Common Stock will be cancelled and each Reorganized License Holding Company will
issue to Reorganized Leap 100% of the issued and outstanding shares of New
License Holding Company Common Stock, (ii) the Old Other Subsidiary Common Stock
will be cancelled and each Reorganized Other
56
Subsidiary will issue to Reorganized Leap 100% of the issued and outstanding
shares of New Other Subsidiary Common Stock, and (iii) the Old Property Holding
Company Common Stock will be cancelled and each Reorganized Property Holding
Company will issue to Reorganized Cricket 100% of the issued and outstanding
shares of New Property Holding Company Common Stock.
Also on the Effective Date, (i) the Old Leap Common Stock will
be cancelled, (ii) Reorganized Leap will issue and contribute 96.5% of the
issued and outstanding shares of New Leap Common Stock to CCH, (iii) Reorganized
Leap will contribute all of the New License Holding Company Common Stock to CCH,
and (iv) CCH will contribute all of such New Leap Common Stock and New License
Company Common Stock to Reorganized Cricket. Following such contributions, on
the Effective Date, CCH will be merged with and into Cricket Communications,
Inc. in a "tax-free" reorganization in compliance with Section 368(a)(1)(G) of
the Internal Revenue Code, pursuant to which the Old CCH Common Stock will be
converted into 100% of the issued and outstanding shares of New Cricket Common
Stock. As a result, Reorganized Leap will own 100% of the issued and outstanding
shares of Reorganized Cricket and each of the Reorganized Other Subsidiaries,
and Reorganized Cricket will own 100% of the issued and outstanding shares of
each of the Reorganized License Holding Companies, 100% of the issued and
outstanding shares of each of the Reorganized Property Holding Companies and,
temporarily until the distribution thereof to the Holders of Old Vendor Debt
Claims, 96.5% of the New Leap Common Stock.
On the Effective Date, or as soon thereafter as practicable,
the Holders of Old Vendor Debt Claims will receive from Cricket, on a Pro Rata
basis, 96.5% of the issued and outstanding shares of New Leap Common Stock and
New Senior Notes aggregating $350 million in principal amount.
On the Initial Distribution Date, and notwithstanding the
occurrence of the Effective Date: (a) Holders of Allowed Leap General Unsecured
Claims, including the Holders of Old Leap Notes, will receive, on a Pro Rata
basis, beneficial interests in the Leap Creditor Trust; (b) the Leap Creditor
Trust will receive the Leap General Unsecured Claim Cash Distribution; and (c)
Holders of Allowed 12 1/2% Senior Secured Claims will receive, on a Pro Rata
basis, the 12 1/2% Senior Secured Claim Distribution (approximately $200,000).
In addition, on the later of the Effective Date and the
Initial Distribution Date, Reorganized Leap will issue and transfer (as
applicable) to the Leap Creditor Trust: (a) the Leap Creditor Trust Assets for
subsequent sale and Distribution of the proceeds to the Leap General Unsecured
Creditors; and (b) 3.5% of the issued and outstanding shares of New Leap Common
Stock as of the Effective Date for Distribution to the Leap General Unsecured
Creditors. Following the Effective Date, after the satisfaction of all Allowed
Administrative Claims and Allowed Priority Claims against Leap and the
resolution of all Disputed Administrative Claims and Disputed Priority Claims
against Leap, any remaining Cash held in reserve by Reorganized Leap will be
distributed to the Leap Creditor Trust. Notwithstanding anything set forth
herein, if any Leap Creditor Trust Assets are converted to Cash on or after the
Initial Distribution Date but prior to the Effective Date, the Cash proceeds
shall be transferred to the Leap Creditor Trust as soon as practicable upon such
monetization, notwithstanding the fact that the Effective Date has not occurred.
In accordance with the negotiated settlement between the Leap Informal
Noteholder Committee and the Informal Vendor Debt Committee leading to the Plan,
all other
57
assets of Leap that are not specifically defined as Leap Creditor Trust Assets
in the Plan will not be transferred to the Leap Creditor Trust and will remain
with Reorganized Leap, including for example only, office furniture, fixtures,
equipment and supplies; Leap intellectual property, including the "Leap"
trademark; retirement plan assets; and an inter-company payable from Cricket
which is being released under the Plan.
Holders of Old Leap Common Stock will receive nothing on
account of their Interests.
Subject to the provisions of the Plan, and except as otherwise
provided herein, property to be distributed hereunder to each Unimpaired Class
shall be distributed on the later of (i) the Effective Date and (ii) the date on
which the distribution to a Holder of a Claim in such Class would have been due
and payable in the ordinary course of business or under the terms of the Claim
in the absence of the Chapter 11 Cases. Notwithstanding any other provision of
the Plan, the Debtors, the Reorganized Debtors and the Leap Creditor Trust shall
not be obligated to make any distribution with respect to any unclassified
Claim, or any Allowed Claim, other than those in the hands of the Holders shown
on the books and records of the Debtors as of the Confirmation Hearing unless
otherwise identified on a Filed proof of claim.
SECTION 5.03 THE OFFICIAL COMMITTEE
On the Effective Date, the Official Committee shall be
dissolved and the members of such committee shall be released and discharged
from all further rights and duties arising from or related to the Chapter 11
Cases. The professionals retained by such committee and the members thereof
shall not be entitled to compensation or reimbursement of expenses incurred for
services rendered after the Effective Date, except in connection with the
preparation and prosecution of, and objections to, fee applications.
SECTION 5.04 VESTING OF ASSETS
Except as otherwise provided in any provision of the Plan, on
the Effective Date, the Leap Creditor Trust Assets shall vest in the Leap
Creditor Trust and all property of the other Estates will vest in the
Reorganized Debtors, as applicable, free and clear of all Liens, Claims,
encumbrances and Interests. From and after the Effective Date, each Reorganized
Debtor may operate its business and use, acquire, and dispose of property and
settle and compromise Claims or Interests arising post-Confirmation without
supervision by the Court and free of any restrictions of the Bankruptcy Code,
the Bankruptcy Rules or the Local Bankruptcy Rules, other than those
restrictions expressly imposed by the Plan and the Confirmation Order.
SECTION 5.05 PRESERVATION OF CAUSES OF ACTION
Except in any contract, instrument, release or other agreement
entered into in connection with the Plan or as otherwise provided in the Plan
(and subject to the following paragraph), in accordance with section 1123(b) of
the Bankruptcy Code, each Reorganized Debtor shall retain all Litigation Claims
that each Debtor or the Estate may hold against any Person; provided, however,
that Litigation Claims listed in Leap's Schedules, as well as any Eligible Leap
Avoidance Actions and Eligible Leap Causes of Action, shall be transferred to
the Leap Creditor Trust on the Effective Date. The Leap Creditor Trust Trustee
shall have the rights prescribed in 11 U.S.C. 1123(b)(3)(B) to pursue or settle
such Claims. Attached to the
58
Disclosure Statement as Exhibit L is a Schedule of Litigation Claims that will
be transferred to the Leap Creditor Trust. During the period (if any) subsequent
to the Initial Distribution Date and prior to the Effective Date, but subject to
the negotiation, execution and approval by the Court of a customary joint
defense agreement among the Debtors, the Official Committee and the Leap
Creditor Trust Trustee, the Debtors shall provide the Official Committee and the
Leap Creditor Trust Trustee with all pleadings and relevant documentation in
connection with Leap Litigation Claims and Eligible Leap Avoidance Actions, as
well as periodic monthly updates as to progress of any litigation or formal or
informal settlement offers in connection therewith. The Official Committee and
the Leap Creditor Trust shall have the right to oversee and comment on such
progress and any settlement proposals, and during such period, no Leap
Litigation Claim or Eligible Leap Avoidance Actions will be settled before the
Effective Date without the express written consent of the Official Committee. In
addition, the Leap Creditor Trust Trustee and the Official Committee shall have
standing to make a motion to the Court to settle or prosecute any such
Litigation Claim or Eligible Leap Avoidance Action to the extent they deem
appropriate.
In addition, within 7 days prior to the Voting Deadline, the
Debtors will File a schedule of Claims to which the Debtors, Reorganized Debtors
or Leap Creditor Trust, as applicable, may object or challenge and of causes of
action (including avoidance actions) that the Debtors or Reorganized Debtors may
bring (the "Objection Schedule"). Within one business day following the date the
Debtors File the Objection Schedule, the Debtors shall serve the Objection
Schedule on all parties listed on the Objection Schedule. The Debtors reserve
the right to amend the Objection Schedule at or prior to the Confirmation
Hearing. The fact that an avoidance action, objection to Claim or cause of
action is not listed on the Objection Schedule shall not preclude the Debtors,
the Reorganized Debtors or the Leap Creditor Trust from bringing any such action
or objection.
Notwithstanding the foregoing, the Plan implements, as of the
Initial Distribution Date, the Intercompany Releases and other settlements
representing a global settlement of all (a) Intercompany Claims and (b)
Litigation Claims (arising out of or related to intercompany transfers described
below) between the Debtors, their Estates, the Holders of Old Vendor Debt, the
Informal Vendor Debt Committee, the Holders of Leap General Unsecured Claims and
the Official Committee, and is the product of months of investigation and
negotiations among the foregoing parties (including the Informal Noteholder
Committee prior to the appointment of the Official Committee). In particular,
and without limitation, in exchange for (i) the distributions made pursuant to
the Plan and (ii) the full releases of Claims that might be asserted by the
non-Leap Debtors, their Estates and/or the Holders of Old Vendor Debt as set
forth below, Leap, its Estate and the Holders of Leap General Unsecured Claims
in such capacity are granting full releases of all Intercompany Claims and
Litigation Claims against the non-Leap Debtors, their Estates and the Holders of
Old Vendor Debt (and other Holders of Claims or Interests against or in any
non-Leap Debtor) arising out of or related to transfers of cash or property from
Leap to any non-Leap Debtor or for the benefit of Holders of Old Vendor Debt (or
other Holders of Claims or Interests against or in any non-Leap Debtor)
including for, inter alia, fraudulent transfers, preferences, equitable
subordination and breach of fiduciary duty. Similarly, and without limitation,
in exchange for the full releases of Claims that might be asserted by Leap, its
Estate and/or the Holders of Leap General Unsecured Claims as set forth above,
each non-Leap Debtor, their Estates and the Holders of Old Vendor Debt in such
capacity are granting full releases of all Intercompany Claims and Litigation
Claims against Leap and its Estate (and the Holders of Claims and Interests
against or in Leap, including the Holders of Leap General
59
Unsecured Claims) arising out of or related to the failure to transfer cash or
property from Leap to any non-Leap Debtor or for the benefit of Holders of Old
Vendor Debt (or other Holders of Claims or Interests against or in any non-Leap
Debtor) including for, inter alia, breach of contract. Each such non-Leap
Debtor, its Estate, all Holders of Claims or Interests against such non-Leap
Debtors claiming through such non-Leap Debtors, and the Holders of Old Vendor
Debt in such capacity are waiving any right to seek recovery from any of the
Leap Creditor Trust Assets in connection with such Claims, whether or not such
Leap Creditor Trust Assets have been transferred to the Leap Creditor Trust as
of the Initial Distribution Date. The Plan constitutes a motion under Rule 9019
to compromise all such claims and no party who holds or could potentially be the
beneficiary of such Intercompany Claims or Litigation Claims shall have any
standing or right to assert such claims following the Initial Distribution Date.
SECTION 5.06 AMENDED DEBTOR BYLAWS AND CERTIFICATES OF INCORPORATION
On the Effective Date, each Reorganized Debtor shall adopt the
applicable Amended Debtor Bylaws and the applicable Amended Debtor Certificates
of Incorporation, pursuant to applicable non-bankruptcy law and Section
1123(a)(5)(1) of the Bankruptcy Code. The Amended Debtor Bylaws and the Amended
Debtor Certificates of Incorporation will, among other things prohibit the
issuance of nonvoting equity securities to the extent required by Section
1123(a)(6) of the Bankruptcy Code. The Amended Debtor Certificates of
Incorporation will become effective upon the occurrence of the Effective Date
and may be amended following the Effective Date in accordance with
non-bankruptcy law. Forms of the Amended Debtor Certificates of Incorporation
and the Amended Debtor Bylaws shall be Filed at least 5 days prior to the date
of the Confirmation Hearing.
SECTION 5.07 COMPOSITION OF MANAGEMENT AND THE DIRECTORS OF THE REORGANIZED
DEBTORS
The Informal Vendor Debt Committee has informed the Debtors
that they expect the existing senior management team to continue as the
executive officers and senior management of the Debtors through the Effective
Date of the Plan, and that following the Effective Date, these officers will
serve at the pleasure of the Board of Directors of Reorganized Leap.
The directors of each of the Debtors will continue to serve in
such capacities until and through the Effective Date. As of the Effective Date,
the new board of directors of Reorganized Leap initially shall consist of seven
directors to be designated by the Informal Vendor Debt Committee. As of the date
hereof, the Informal Vendor Debt Committee does not yet know who will be serving
as directors of Reorganized Leap or any of the other Reorganized Debtors after
the Effective Date. However, the Reorganized Debtors will identify those
individuals who initially will serve as directors of the Reorganized Debtors
from and after the Effective Date in a Schedule Filed with the Court at least 5
days prior to the Confirmation Hearing.
A majority of the Board of Directors of Reorganized Leap shall
select the Board of Directors and senior management of the other Reorganized
Debtors.
Reorganized Leap may authorize appropriate compensation and
bonus plans for senior management employed by the Reorganized Debtors
post-Effective Date. After the Effective Date, Reorganized Leap may adopt a new
incentive plan for the grant to officers,
60
employees and directors of the Company and its subsidiaries of options to
acquire shares of New Leap Common Stock. The options may be based upon a vesting
schedule and any other performance criteria that may be structured by the Board
of Directors of Reorganized Leap.
SECTION 5.08 DISBURSING AGENTS
Reorganized Leap and Reorganized Cricket (or their designee)
shall act as the Disbursing Agents for the purpose of making all distributions
provided for under the Plan, provided, however, that the Leap Creditor Trust
Trustee shall act as the Disbursing Agent under the Leap Plan with respect to
all assets transferred to the Leap Creditor Trust pursuant to the Plan. Each
Disbursing Agent shall serve without bond.
Subject to the provisions of the Plan, all Cash to be
distributed by the Disbursing Agents or the Leap Creditor Trust Trustee in
respect of Allowed General Unsecured Claims for the benefit of the Holders of
Old Leap Notes, and in respect of Allowed 12 1/2% Senior Secured Claims for the
benefit of the Holders of 12 1/2% Senior Notes, shall be delivered to the Old
Indenture Trustee who, after deducting any unpaid fees and expenses of the Old
Indenture Trustee and its counsel to the extent provided for by the Indenture
and in accordance with applicable law, will then distribute such Cash pursuant
to the provisions of the Indenture. Subject to the provisions of the Plan, all
non-Cash property to be distributed by the Disbursing Agents or the Leap
Creditor Trust Trustee in respect of Allowed General Unsecured Claims for the
benefit of the Holders of Old Leap Notes shall be made to or at the direction of
the Old Indenture Trustee in accordance with the Indenture. The Distribution
Record Date shall be used as the record date for any distributions pursuant to
the Indenture.
SECTION 5.09 DISCHARGE OF REORGANIZED DEBTORS AND INJUNCTION
Except as otherwise provided in the Plan or the Confirmation
Order: (i) on the Effective Date, each Reorganized Debtor shall be deemed
discharged and released to the fullest extent permitted by section 1141 of the
Bankruptcy Code from all Claims and Interests, including, but not limited to,
demands, liabilities, Claims and Interests that arose before the Confirmation
Date and all debts of the kind specified in sections 502(g), 502(h) or 502(i) of
the Bankruptcy Code, whether or not: (A) a proof of Claim or proof of Interest
based on such debt or Interest is Filed or deemed Filed pursuant to section 501
of the Bankruptcy Code, (B) a Claim or Interest based on such debt or Interest
is allowed pursuant to section 502 of the Bankruptcy Code or (C) the Holder of a
Claim or Interest based on such debt or Interest has accepted the Plan; and (ii)
all Persons shall be precluded from asserting against each Reorganized Debtor,
its successors, or its assets or properties any other or further Claims or
Interests based upon any act or omission, transaction, or other activity of any
kind or nature that occurred prior to the Confirmation Date. Except as otherwise
provided in the Plan or the Confirmation Order, the Confirmation Order shall act
as a discharge of any and all Claims against and all debts and liabilities of
the Reorganized Debtors, as provided in sections 524 and 1141 of the Bankruptcy
Code, and such discharge shall void any judgment against each Reorganized Debtor
at any time obtained to the extent that it relates to a Claim discharged.
All Persons that have held, currently hold or may hold a Claim
or other debt or liability or an Interest or other right of such Holders, are
permanently enjoined from taking any of the following actions on account of any
such Claims, debts or liabilities or Interests or rights: (a) commencing or
continuing in any manner any action or other proceeding against any of the
61
Debtors, the Informal Vendor Debt Committee (and each of its members in such
capacity), the Informal Noteholder Committee (and each of its members in such
capacity), the Official Committee (and each of its members in such capacity),
the Old Indenture Trustee and counsel and other professional persons retained by
the Debtors, the Informal Vendor Debt Committee, the Noteholder Committee, the
Official Committee, and the Old Indenture Trustee, and each of their respective
affiliates, current or former officers, directors, agents, employees and
representatives; (b) enforcing, attaching, collecting or recovering in any
manner any judgment, award, decree or order against any of the Debtors, the
Informal Vendor Debt Committee (and each of its members in such capacity), the
Informal Noteholder Committee (and each of its members in such capacity), the
Official Committee (and each of its members in such capacity), the Old Indenture
Trustee and counsel and other professional persons retained by any of the
Debtors, the Informal Vendor Debt Committee, the Informal Noteholder Committee,
the Official Committee, and the Old Indenture Trustee, and each of their
respective affiliates, current or former officers, directors, agents, employees
and representatives; (c) creating, perfecting or enforcing any Lien or
encumbrance against any of the Debtors, the Informal Vendor Debt Committee (and
each of its members in such capacity), the Informal Noteholder Committee (and
each of its members in such capacity), the Official Committee (and each of its
members in such capacity), the Old Indenture Trustee and counsel and other
professional persons retained by any of the Debtors, the Informal Vendor Debt
Committee, the Informal Noteholder Committee, the Official Committee, and the
Old Indenture Trustee, and each of their respective affiliates, current or
former officers, directors, agents, employees and representatives; (d) asserting
a setoff, right of subrogation or recoupment of any kind against any obligation
due to any of the Debtors, the Informal Vendor Debt Committee (and each of its
members in such capacity), the Informal Noteholder Committee (and each of its
members in such capacity), the Official Committee (and each of its members in
such capacity), the Old Indenture Trustee and counsel and other professional
persons retained by any of the Debtors, the Informal Vendor Debt Committee, the
Informal Noteholder Committee, the Official Committee, and the Old Indenture
Trustee, and each of their respective affiliates, current or former officers,
directors, agents, employees and representatives; and (e) commencing or
continuing any action, in any manner, in any place that does not comply with or
is inconsistent with the provisions of the Plan.
Any Person injured by any willful violation of such injunction
shall recover actual damages, including costs and attorneys' fees, and, in
appropriate circumstances, may recover punitive damages, from the willful
violator.
SECTION 5.10 NO LIABILITY FOR SOLICITATION OR PARTICIPATION
As specified in section 1125(e) of the Bankruptcy Code,
Persons that solicit acceptances or rejections of the Plan and/or that
participate in the offer, issuance, sale, or purchase of securities offered or
sold under the Plan (including but not limited to the Debtors, the Informal
Vendor Debt Committee (and each of its members in such capacity), the Informal
Noteholder Committee (and each of its members in such capacity), the Official
Committee (and each of its members in such capacity), the Old Indenture Trustee
and counsel and other professional persons retained by any of the Debtors, the
Informal Vendor Debt Committee, the Informal Noteholder Committee, the Official
Committee, and the Old Indenture Trustee, and each of their respective
affiliates, current or former officers, directors, agents, employees and
representatives), in good faith and in compliance with the applicable provisions
of the Bankruptcy Code, shall not be liable, on account of such solicitation or
participation, for
62
violation of any applicable law, rule, or regulation governing the solicitation
of acceptances or rejections of the Plan or the offer, issuance, sale, or
purchase of securities.
SECTION 5.11 LIMITATION OF LIABILITY
Neither (a) any Debtor or Reorganized Debtor or any of their
respective postpetition employees, officers, directors, agents, representatives,
affiliates, attorneys, financial advisors or any other professional persons
employed by any of them, nor (b) the Informal Vendor Debt Committee, or any of
its members, agents, employees, directors, officers, representatives, attorneys
or other professional advisors, (c) the Official Committee, or any of its
postpetition members, agents, employees, directors, officers, representatives,
attorneys or other professional advisors, nor (d) the Old Indenture Trustee, or
any of its agents, employees, directors, officers, representatives, attorneys or
other professional advisors, in each case, shall have any responsibility, or
have or incur any liability, to any Person whatsoever, under any theory of
liability (except for any claim based upon willful misconduct or gross
negligence), for any act taken or omission made in good faith directly related
to formulating, implementing, confirming, or consummating the Plan, the
Disclosure Statement, or any contract, instrument, release, or other agreement
or document created in connection with the Plan, provided that nothing in this
paragraph shall limit the liability of any Person for breach of any express
obligation it has under the terms of this Plan or under any post-petition
agreement or other post-petition document entered into by such Person or in
accordance with the terms of this Plan or for any breach of a duty of care owed
to any other Person occurring after the Effective Date.
SECTION 5.12 OBJECTIONS TO CLAIMS
The right to prosecute, File, litigate and settle objections
to Disputed Claims, whether or not the subject of litigation pending as of the
Effective Date, shall be deemed automatically transferred by the Debtors and
their Estates to the Reorganized Debtors as of the Effective Date. From and
after the Effective Date, only the Reorganized Debtors shall have the right to
File, litigate or settle any objections to Disputed Claims; provided, that in
the case of Claims against Leap (including but not limited to the Allowance or
allocation of Administrative Claims), from and after the Effective Date the Leap
Creditor Trust Trustee (to the extent provided in the Plan) shall have the
authority to File objections, settle, compromise, withdraw or litigate to
judgment objections to Claims.
Except as otherwise provided in the Plan, objections to any
Disputed Claim shall be Filed within 60 days after the Effective Date, or within
such additional period of time as the Court may allow upon motion made by the
Reorganized Debtors or the Leap Creditor Trust Trustee, as applicable, within
such 60 day period. Any such objection that is not timely Filed shall be deemed
forever waived by the Reorganized Debtors' Estates and the Leap Creditor Trust,
as applicable, and neither the Reorganized Debtors, the Leap Creditor Trust
Trustee nor any other party-in-interest shall have any right to pursue the same.
Notwithstanding that the Reorganized Debtors and the Leap
Creditor Trust Trustee shall have the right to File, litigate and settle
objections to Disputed Claims on behalf of the Debtors and their Estates,
nothing contained herein shall be deemed to obligate the Reorganized Debtors and
the Leap Creditor Trust Trustee to take any such actions, all of which shall be
determined by the Reorganized Debtors and the Leap Creditor Trust Trustee in
their sole and absolute discretion.
63
From and after the Effective Date, the Reorganized Debtors
(and the Leap Creditor Trust Trustee with respect to any Disputed Claims against
Leap or Disputed Interest in Leap) may settle or compromise any Disputed Claim
or Disputed Interest without approval of the Court.
Within 7 days prior to the Voting Deadline, the Debtors will
File a schedule of Claims to which the Debtors, Reorganized Debtors or Leap
Creditor Trust, as applicable, may object or challenge in any way and of causes
of action (including avoidance actions) that the Debtors or Reorganized Debtors
may bring (the "Objection Schedule"). Within two business days following the
date the Debtors File the Objection Schedule, the Debtors shall serve the
Objection Schedule on all parties listed on the Objection Schedule. The Debtors
reserve the right to amend the Objection Schedule at or prior to the
Confirmation Hearing. The fact that an avoidance action, objection to Claim or
cause of action is not listed on the Objection Schedule shall not preclude the
Debtors, the Reorganized Debtors or the Leap Creditor Trust from bringing any
such action or objection.
THE DEBTORS HAVE NOT FULLY REVIEWED THE CLAIMS IN THE CASE OR
DETERMINED WHETHER OBJECTIONS TO CLAIMS EXIST. THIS INVESTIGATION IS ONGOING AND
WILL OCCUR, IN LARGE PART, AFTER THE CONFIRMATION DATE. AS A RESULT, CREDITORS
AND OTHER PARTIES-IN-INTEREST ARE HEREBY ADVISED THAT, NOTWITHSTANDING THAT THE
EXISTENCE OF ANY PARTICULAR OBJECTION TO A DISPUTED CLAIM MAY NOT BE LISTED,
DISCLOSED OR SET FORTH IN THIS PLAN, AN OBJECTION TO A CLAIM MAY BE BROUGHT
AGAINST ANY CREDITOR OR PARTY-IN-INTEREST AT ANY TIME, SUBJECT TO THE TIME
LIMITATIONS SET FORTH IN THIS PARAGRAPH 5.12 AND THE LIMITATION THAT AN
OBJECTION MAY BE ASSERTED ONLY WITH RESPECT TO DISPUTED CLAIMS CONTEMPLATED
WITHIN THE OBJECTION SCHEDULE. IN ADDITION TO THE FOREGOING, WITH RESPECT TO THE
DISPUTED CLAIMS SCHEDULE, THE DEBTORS, THE REORGANIZED DEBTORS AND THE LEAP
CREDITOR TRUST TRUSTEE RETAIN AND HEREBY RESERVE THE RIGHT TO OBJECT TO (i) ANY
CLAIMS FILED AFTER THE BAR DATE OF JUNE 28, 2003, (ii) ANY CLAIMS FILED BY
ADDITIONAL PARTIES AFTER THE SUPPLEMENTAL BAR DATE OF AUGUST ___, 2003 AND (iii)
ANY CLAIMS FILED IN ORDER TO SET FORTH DAMAGES ARISING FROM THE REJECTION OF AN
EXECUTORY CONTRACT OR OTHER AGREEMENT WITH THE DEBTORS. THE DEBTORS, THE
REORGANIZED DEBTORS AND THE LEAP CREDITOR TRUST TRUSTEE FURTHER RETAIN AND
HEREBY RESERVE THE RIGHT TO OBJECT TO CLAIMS INADVERTENTLY OMITTED FROM THE
DISPUTED CLAIMS SCHEDULES, WHICH OBJECTIONS WILL NOT MATERIALLY AND ADVERSELY
AFFECT THE CLAIMS OF THE REMAINING CREDITORS OF THE DEBTORS' ESTATES. FINALLY,
THE DEBTORS AND THE REORGANIZED DEBTORS RETAIN AND HEREBY RESERVE THE RIGHT TO
OBJECT TO AMOUNTS THAT HAVE BEEN SCHEDULED BY THE DEBTORS, OR REFLECTED IN THE
DEBTORS' BOOKS AND RECORDS, AND WHICH ARE FOUND TO BE OBJECTIONABLE IN ANY
RESPECT.
Objections to applications of professionals or other entities
for compensation or reimbursement of expenses must be Filed and served on the
Reorganized Debtors, counsel for the Reorganized Debtors, the Informal Vendor
Debt Committee, the Official Committee (or, if
64
the Official Committee has disbanded, the Leap Creditor Trust Trustee) and the
requesting professional or other entity no later than sixty (60) days after the
date on which the applicable application for compensation or reimbursement was
Filed and served.
SECTION 5.13 OTHER DOCUMENTS AND ACTIONS
The Debtors, the Debtors in Possession, the Leap Creditor
Trust Trustee and the Reorganized Debtors may, and shall, execute such documents
and take such other actions as are necessary to effectuate the transactions
provided for in the Plan.
SECTION 5.14 CORPORATE ACTION
The creation of the Leap Creditor Trust and the appointment of
the Leap Creditor Trust Trustee shall be deemed to have occurred and be
effective on the Initial Distribution Date, and the issuance of the New Leap
Common Stock, New Cricket Common Stock, New License Holding Company Common
Stock, New Property Holding Company Common Stock and New Other Subsidiary Common
Stock, the New Senior Notes, the adoption of the Amended Debtor Certificates of
Incorporation and the selection of the Persons who will serve as the initial
directors and officers of the Reorganized Debtors as of the Effective Date, and
other matters under the Plan involving the corporate structure of each Debtor or
corporate action by each Debtor, shall be deemed to have occurred and be
effective on and after the Effective Date without any requirement of further
action by the stockholders or directors of each Debtor. Without limiting the
foregoing, upon entry of the Confirmation Order by the Clerk, the filing by each
Reorganized Debtor of its respective Amended Debtor Certificate of Incorporation
shall be authorized and approved in all respects. On the Effective Date or as
soon thereafter as is practicable, pursuant to applicable law, the Amended
Debtor Bylaws of each Debtor shall be the bylaws of each Reorganized Debtor (as
appropriate).
SECTION 5.15 RETIREE BENEFITS
On and after the Effective Date, to the extent required by
section 1129(a)(13) of the Bankruptcy Code, each Reorganized Debtor shall
continue to pay all retiree benefits (if any), as the term "retiree benefits" is
defined in section 1114(a) of the Bankruptcy Code, that it maintained or
established prior to the Confirmation Date.
SECTION 5.16 EMPLOYEE BENEFITS
Each Debtor's employees shall have a priority claim for unpaid
wages, benefits, and other entitlements to the extent permitted by Section
507(a)(3) of the Bankruptcy Code, which will be either (i) paid in full, or (ii)
Reinstated. To the extent that any employee's claim exceeds the amount
prescribed by Section 507(a)(3), the employee shall receive a General Unsecured
Claim for the excess amount against the applicable Debtor. Notwithstanding the
foregoing, any non-Leap employee who continues to be an employee in good
standing with the Reorganized Debtors after the Effective Date shall be entitled
to take (in the form of vacation days and not in cash) all unused and unpaid
vacation time he accrued prior to the Petition Date. If such employee is
terminated without cause, such employee will be entitled to a payment from
Cricket of the value of any such vacation in accordance with existing policies
of the Debtors and applicable non-bankruptcy law.
65
SECTION 5.17 CERTAIN PROVISIONS IN RESPECT OF THE OLD LEAP NOTES, AND THE
OLD INDENTURE TRUSTEE
(a) Old Indenture Trustee's Lien
Anything in this Plan to the contrary notwithstanding, but
subject to the terms of the Indenture and to applicable law, the Plan shall not
affect the lien of the Old Indenture Trustee pursuant to Section 7.07 of the
Indenture on all money or property now or in the future held by the Old
Indenture Trustee, including without limitation any distributions in respect of
the Old Leap Notes pursuant to this Plan or the Leap Creditor Trust, to secure
payment of the fees and expenses incurred or to be incurred by the Old Indenture
Trustee (including without limitation the fees and expenses of its counsel) and
the indemnity and all other obligations set forth in Section 7.07 of the
Indenture, which lien shall continue notwithstanding the occurrence of the
Confirmation Date, the Initial Distribution Date and the Effective Date and
notwithstanding the discharge of the Debtors pursuant to this Plan and Section
1141 of the Bankruptcy Code. Anything in this Plan to the contrary
notwithstanding, but subject to the terms of the Indenture and applicable law,
the Old Indenture Trustee may at any time, and from time to time, pay or reserve
for such fees, expenses, indemnity and other obligations from any such money or
property now or in the future held by the Old Indenture Trustee.
(b) Tax Reporting
Anything in this Plan to the contrary notwithstanding, but
subject to the terms of the Indenture and to applicable law, none of the Old
Indenture Trustee, the Disbursing Agent or the Leap Creditor Trust Trustee shall
have any obligation to pay, make withholdings in respect of, or make any filings
with or reportings to any governmental entity or agency or any other Person in
respect of, any tax or tax-related obligations in respect of the Old Leap Notes
or any distributions pursuant to this Plan or the Leap Creditor Trust in respect
of the Old Leap Notes. Instead, (i) the beneficial holder of each Old Leap Note
shall have the obligation to pay all taxes in respect of such distributions, and
(ii) the top-tier Depository Trust Company participant in respect of each Old
Leap Note shall have the obligation to comply with all such withholding, filing
and reporting requirements.
(c) Indenture
Anything in this Plan to the contrary notwithstanding, the
Indenture shall continue in full force and effect notwithstanding the occurrence
of the Confirmation Date, the Initial Distribution Date and the Effective Date
and notwithstanding the discharge of the Debtors, except that the personal
liability of any of the Debtors thereunder shall be discharged pursuant to this
Plan and Section 1141 of the Bankruptcy Code.
66
ARTICLE VI.
CONFIRMATION AND EFFECTIVE DATE CONDITIONS
SECTION 6.01 CONDITIONS TO CONFIRMATION
The conditions to Confirmation shall be the following:
(a) A finding by the Court that the requirements of 11
U.S.C. Section 1129 have been satisfied;
(b) The Confirmation Order shall (i) be acceptable in form and
substance to the Debtors, the Informal Vendor Debt Committee, and the Official
Committee and (ii) expressly authorize and direct the Debtors to perform the
actions that are conditions to the effectiveness of the Plan;
(c) Each of the events and actions required by the Plan to
occur or to be taken prior to Confirmation shall have occurred or have been
taken, or the Debtors or the party whose obligations are conditioned by such
occurrences and/or actions, as applicable, shall have waived such occurrences or
actions;
(d) Holders of at least two-thirds in dollar amount of the
Allowed Leap Class 4 General Unsecured Claims that actually vote on the Plan
shall have voted to accept the Plan; and
(e) The Confirmation Order must be entered by [October 31],
2003.
SECTION 6.02 CONDITIONS TO INITIAL DISTRIBUTION DATE
The conditions to the Initial Distribution Date shall be the
following: the Confirmation Order shall (i) be acceptable in form and substance
to the Debtors, the Informal Vendor Debt Committee and the Official Committee;
(ii) expressly authorize the Debtors to perform the actions that are conditions
to the effectiveness of the Plan; and (iii) shall be entered by the Court.
SECTION 6.03 CONDITIONS TO EFFECTIVE DATE
The Plan shall not become effective unless and until it has
been confirmed and the following conditions have been satisfied in full or
waived: (1) the Confirmation Order in a form satisfactory to the Debtors, the
Informal Vendor Debt Committee and the Official Committee shall have become a
Final Order; (2) all authorizations, consents and regulatory approvals
(including, without limitation, any approvals required under regulations
relating to the change in ownership of the Debtors upon the Effective Date)
required (if any) for the Plan's effectiveness shall have been obtained
including, without limitation, all FCC approvals and consents in form and
substance reasonably acceptable to the Informal Vendor Debt Committee; (3) the
New Senior Notes Indenture has been qualified under the Trust Indenture Act of
1939, as amended, if required; (4) the Debtors shall have purchased, at
Cricket's expense, directors' and officers' liability insurance for the
directors and officers of the Reorganized Debtors in form and amounts reasonably
acceptable to the Informal Vendor Debt Committee; and (5) all other actions and
documents necessary to implement the treatment of Claims and Interests shall
have been effected
67
or executed or, if waivable, waived by the Person or Persons entitled to the
benefit thereof. Notwithstanding anything set forth herein, the occurrence of
the Effective Date is not a condition precedent to the occurrence of the Initial
Distribution Date.
SECTION 6.04 WAIVER OF CONDITIONS
The Debtors, the Official Committee, and/or the Informal
Vendor Debt Committee, as applicable, may waive any or all of the other
conditions set forth in the Plan without leave of or order of the Court and
without any formal action; provided, however, that no waiver of the condition
set forth in Section 6.01(d) above shall be effective without the prior written
consent of the Official Committee. The Debtors reserve the right to amend or
revoke the Plan. Although this Plan is styled as a joint plan, the Debtors
reserve the right to proceed with Confirmation under this Plan for one or more
Debtors but not all Debtors.
SECTION 6.05 EFFECT OF FAILURE OF CONDITIONS
Except as provided in the next paragraph, in the event that
the Effective Date does not occur within one year following Confirmation, upon
notification submitted by the Debtors to the Court: (a) the Confirmation Order
shall be vacated, (b) no additional distributions under the Plan shall be made,
(c) the Debtors and all Holders of Claims and Interests shall be restored to the
status quo ante as of the day immediately preceding the Confirmation Date as
though the Confirmation Date had never occurred, and (d) the Debtors'
obligations with respect to the Claims and Interests shall remain unchanged
(except to the extent of any post-Confirmation pre-Effective Date payments) and
nothing contained in the Plan shall constitute or be deemed a waiver or release
of any Claims or Interests by or against the Debtors or any other Person or to
prejudice in any manner the rights of the Debtors or any Person in any further
proceedings involving the Debtors.
Notwithstanding anything set forth above, if the Debtors
notify the Court that the Effective Date will not occur in accordance with the
procedures set forth above, and the Initial Distribution Date has already
occurred at the time of such notification, (i) the Holders of Allowed Claims
against Leap and the Leap Creditor Trust will be entitled to retain all assets
that have been transferred to them on the Initial Distribution Date or
thereafter pursuant to the Plan prior to such notification (including but not
limited to the Leap General Unsecured Claim Cash Distribution and the Cash
proceeds of any Leap Creditor Trust Assets to the extent such Leap Creditor
Trust Assets were converted to Cash prior to such notification); (ii) the Leap
Creditor Trust shall retain the right to receive a distribution of equity
securities of the parent company of the reorganized Debtors with a value
equivalent to the value of the proposed Leap General Unsecured Claim Equity
Distribution under the Plan, in a manner reasonably acceptable to the Official
Committee and the Informal Vendor Debt Committee, if and to the extent that one
or more of the Debtors reorganize their businesses under a plan of
reorganization other than the Plan; provided, that no such equity securities
will be distributed to the Leap Creditor Trust prior to the effective date of
any such plan; and (iii) Leap, its Estate and its creditors shall be entitled to
the benefit of the Intercompany Releases from the non-Leap Debtors and their
Estates and the Holders of Old Vendor Debt, as described in Section 5.05 of the
Plan. In exchange, Leap, its Estate and the Holders of Leap General Unsecured
Claims shall be deemed to implement the Intercompany Releases and to release the
non-Leap Debtors and their creditors (including the Holders of Old Vendor Debt)
from all Intercompany Claims and Litigation Claims (as described
68
in Section 5.05) held or asserted by Leap and/or the Holders of Leap General
Unsecured Claims as of the Initial Distribution Date. Upon the implementation of
the Intercompany Releases as of the Initial Distribution Date, all non-Leap
Debtors and their Estates, the Holders of Old Vendor Debt, and all Holders of
Claims or Interests against such non-Leap Debtors claiming through such non-Leap
Debtors shall be deemed to have waived any rights or Claims against the Leap
Creditor Trust Assets and the Leap General Unsecured Claim Cash Distribution,
and, subject to the satisfaction of all Allowed Administrative Claims against
Leap and Allowed Priority Claims against Leap, only Holders of Leap General
Unsecured Claims shall have a right against the Leap Creditor Trust Assets,
whether or not the Effective Date occurs.
SECTION 6.06 ORDER DENYING CONFIRMATION
If an order denying confirmation of the Plan is entered, then
the Plan shall be null and void in all respects, and nothing contained in the
Plan shall (a) constitute a waiver or release of any Claims against or Interests
in the Debtors; (b) prejudice in any manner the rights of the Holder of any
Claim against, or Interest in, the Debtors; (c) prejudice in any manner any
right, remedy or claim of the Debtors; or (d) be deemed an admission against
interest by the Debtors, the Informal Vendor Debt Committee or the Official
Committee, or any committees' respective members.
ARTICLE VII.
CONFIRMABILITY OF PLAN AND CRAMDOWN
In the event at least one Impaired Class of Claims votes to
accept the Plan (and at least one Impaired Class either votes to reject the Plan
or is deemed to have rejected the Plan), one or more of the Debtors, as
appropriate, shall request the Court to confirm the Plan under the cramdown
provisions of the Bankruptcy Code.
ARTICLE VIII.
PROVISIONS REGARDING VOTING AND DISTRIBUTIONS
UNDER THE PLAN AND TREATMENT OF DISPUTED,
CONTINGENT AND UNLIQUIDATED CLAIMS AND INTERESTS
SECTION 8.01 VOTING OF CLAIMS AND INTERESTS
Each Holder of an Allowed Claim or an Allowed Interest in an
Impaired Class of Claims or Interests shall be entitled to vote separately to
accept or reject the Plan as provided in such order as may be entered by the
Court establishing certain procedures with respect to the solicitation and
tabulation of votes to accept or reject the Plan, or any other order or orders
of the Court.
SECTION 8.02 METHOD OF DISTRIBUTIONS UNDER THE PLAN
69
(a) Distributions Under the Plan
Except as otherwise provided in the Plan or in the Leap
Creditor Trust Agreement (which shall govern the timing of distributions to
Holders of Leap General Unsecured Claims), on the Effective Date or as soon as
practicable thereafter to the extent that the Plan provides for distributions on
account of Allowed Claims or Allowed Interests in the applicable Class, each
Holder of an Allowed Claim or Allowed Interest will receive the full amount of
the distributions that the Plan provides for Allowed Claims or Allowed Interests
in the applicable Class, unless such distribution was received on an earlier
date pursuant to the terms of the Plan. Beginning on the date that is 15 days
after the end of the calendar quarter following the Effective Date and 15 days
after the end of each calendar quarter thereafter, distributions will also be
made respectively (a) to Holders of Claims or Interests to whom a distribution
has become deliverable during the preceding calendar quarter and (b) to Holders
of Disputed Claims or Disputed Interests in any such Class whose Claims or
Interests were Allowed during the preceding calendar quarter. Such quarterly
distributions will also be in the full amount that the Plan provides for Allowed
Claims or Allowed Interests in the applicable Class.
Except as otherwise provided in the Plan or the Confirmation
Order, and except with respect to Claims against Leap, all Cash necessary for
the Reorganized Debtors to make payments pursuant to the Plan will be obtained
from the applicable Debtors' existing cash balances, the operations of the
Debtors or Reorganized Debtors or post-Effective Date borrowings, as applicable.
Except as otherwise provided in the Plan or the Confirmation
Order, all Cash necessary for the Leap Creditor Trust to make payments pursuant
to the Plan for Holders of Claims against Leap will be obtained from assets
transferred to the Leap Creditor Trust in accordance with the terms of the Plan.
The Disbursing Agents will make all distributions of Cash and
securities required to be distributed under the applicable provisions of the
Plan. Any Disbursing Agent may employ or contract with other entities to assist
in or make the distributions required by the Plan. Each Disbursing Agent will
serve without bond, and each Disbursing Agent, other than the Reorganized
Debtors, will receive, without further Court approval, reasonable compensation
for distribution services rendered pursuant to the Plan and reimbursement of
reasonable out-of-pocket expenses incurred in connection with such services from
the Reorganized Debtors on terms acceptable to the Reorganized Debtors.
Cash payments made pursuant to the Plan will be in U.S.
dollars by checks drawn on or wire transfers from a bank selected by the
Disbursing Agent. Except as otherwise set forth in the Leap Creditor Trust, Cash
payments of $1,000,000 or more to be made pursuant to the Plan will, to the
extent requested in writing no later than five days after the Confirmation Date,
be made by wire transfer from a bank. Cash payments to foreign creditors, if
any, may be made, at the option of the Disbursing Agent, in such funds and by
such means as are necessary or customary in a particular foreign jurisdiction.
The Disbursing Agent will make all distributions required
under the applicable provisions of the Plan and the Leap Creditor Trust.
70
(b) Timing and Methods of Distributions
(i) Compliance with Tax Requirements
In connection with the Plan, to the extent applicable and
except as provided in Section 5.17(b) of this Plan, each Disbursing Agent must
comply with all tax withholding and reporting requirements imposed on it by any
governmental unit, and all distributions pursuant to the Plan will be subject to
such withholding and reporting requirements. The Disbursing Agents will be
authorized to take any and all actions that may be necessary or appropriate to
comply with such withholding and reporting requirements.
Notwithstanding any other provision of the Plan: (i) each
Holder of an Allowed Claim or Interest that is to receive a distribution of Cash
pursuant to the Plan will have sole and exclusive responsibility for the
satisfaction and payment of any tax obligations imposed by any governmental
unit, including income, withholding and other tax obligations, on account of
such distribution; and (ii) no distribution will be made to or on behalf of such
Holder pursuant to the Plan unless and until such Holder has made arrangements
satisfactory to the Disbursing Agents for the payment and satisfaction of such
tax obligations. Any Cash to be distributed pursuant to the Plan will, pending
the implementation of such arrangements, be treated as an undeliverable
distribution pursuant to the Plan.
(ii) Pro Rata Distribution
When the Plan provides for Pro Rata distribution, the property
to be distributed under the Plan shall be divided Pro Rata among the Holders of
Allowed Claims or Allowed Interests of the relevant Class for that particular
Debtor.
(iii) Distribution Record Date
As of the close of business on the Distribution Record Date,
the transfer registers for any Old Securities and Old Vendor Debt maintained by
the Debtors, or their respective agents, will be closed. The Disbursing Agents
and the respective agents of the Debtors will have no obligation to recognize
the transfer of the Old Securities and Old Vendor Debt occurring after the
Distribution Record Date, and will be entitled for all purposes relating to the
Plan to recognize and deal only with those Holders of record as of the close of
business on the Distribution Record Date. Distributions under the Plan shall be
made by the Debtors, Leap Creditor Trust or Reorganized Debtors, as applicable,
for the benefit of the Holders of Allowed Administrative Claims and Allowed
Claims in the Debtors' respective books and records, unless such addresses are
superseded by addresses listed on proofs of claim or transfers of claims filed
pursuant to Bankruptcy Rule 3001.
(iv) Fractional Shares
The calculation of percentage distribution of the New Common
Stock to be made to Holders of certain Allowed Claims and Interests, as provided
for in the Plan, may mathematically entitle such Holder to a fractional interest
in the New Common Stock. The number of shares of New Common Stock to be received
by a Holder of an Allowed Claim and/or Interest shall be rounded to the next
greater or lower whole number of shares as follows: (a) fractions of 1/2 or
greater shall be rounded to the next greater whole number and (b) fractions of
71
less than 1/2 shall be rounded to the next lower whole number. The total number
of shares of New Common Stock to be distributed to a class of Claims or
Interests shall be adjusted as necessary to account for the rounding described
above. No consideration shall be provided in lieu of the fractional shares that
are rounded down and not issued.
SECTION 8.03 SPECIAL PROCEDURES FOR LOST, STOLEN, MUTILATED OR DESTROYED
INSTRUMENTS
In addition to any requirements under the Bylaws of the
Debtors, any Holder of a Claim evidenced by an Instrument that has been lost,
stolen, mutilated or destroyed will, in lieu of surrendering such Instrument,
deliver to the Disbursing Agent: (a) evidence satisfactory to the Disbursing
Agent of the loss, theft, mutilation or destruction; and (b) such security or
indemnity as may be required by the Disbursing Agent to hold the Disbursing
Agent harmless from any damages, liabilities or costs incurred in treating such
individual as a Holder of an Instrument. Upon compliance with the Plan, the
Holder of a Claim evidenced by such an Instrument will, for all purposes under
the Plan, be deemed to have surrendered an Instrument, as applicable.
SECTION 8.04 UNDELIVERABLE OR UNCLAIMED DISTRIBUTIONS
Any Person that is entitled to receive a cash distribution
under the Plan but that fails to cash a check within 90 days of its issuance
shall be entitled to receive a reissued check from the Leap Creditor Trust or
Reorganized Debtors, as applicable, for the amount of the original check,
without any interest, if such person requests the Disbursing Agent to reissue
such check and provides the Disbursing Agent with such documentation as the
Disbursing Agent requests to verify that such Person is entitled to such check,
prior to the first anniversary of the Effective Date. If a Person fails to cash
a check within 90 days of its issuance and fails to request reissuance of such
check prior to the first anniversary of the Effective Date, such Person shall
not be entitled to receive any distribution under this Plan. If the distribution
to any Holder of an Allowed Claim or Allowed Interest is returned to a
Disbursing Agent as undeliverable, no further distributions will be made to such
Holder unless and until the applicable Disbursing Agent is notified in writing
of such Holder's then-current address. Undeliverable distributions will remain
in the possession of the Disbursing Agent pursuant to the Plan until such time
as a distribution becomes deliverable. Undeliverable cash will be held in trust
in segregated bank accounts in the name of the Disbursing Agent for the benefit
of the potential claimants of such funds, and will be accounted for separately.
Except as set forth in the Leap Creditor Trust Agreement, the Disbursing Agent
holding undeliverable cash shall invest such cash in a manner consistent with
Reorganized Cricket's investment and deposit guidelines. Any distribution which
is not claimed within one year of the Effective Date shall be deemed property
of, as applicable, the Leap Creditor Trust and the Reorganized Debtors, and to
the extent deemed the property of the Leap Creditor Trust, shall be distributed
by the Leap Creditor Trust Trustee, on a Pro Rata basis, to the Holders of
beneficial interests in the Leap Creditor Trust as soon as practicable
thereafter.
SECTION 8.05 DISPUTED CLAIMS; RESERVE AND ESTIMATIONS
(a) Treatment of Disputed Claims
Notwithstanding any other provisions of the Plan, no payments
or distributions will be made on account of a Disputed Claim or a Disputed
Interest until such Claim or Interest becomes an Allowed Claim or Allowed
Interest. The Leap Creditor Trust Trustee or
72
Reorganized Debtors, as applicable, may, at any time, request that the Court
estimate any contingent or unliquidated Claim pursuant to section 502(c) of the
Bankruptcy Code, irrespective of whether any Debtor previously objected to such
Claim or whether the Court has ruled on any such objection. The Court will
retain jurisdiction to estimate any contingent or unliquidated Claim at any time
during litigation concerning any objection to the Claim, including during the
pendency of any appeal relating to any such objection. If the 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 Court. If the estimated amount constitutes a maximum
limitation on such Claim, the Leap Creditor Trust Trustee or Reorganized
Debtors, as applicable, may elect to pursue any supplemental proceedings to
object to any ultimate payment on account of such Claim. All of these Claims
objection, estimation and resolution procedures are cumulative and not
necessarily exclusive of one another. In addition to seeking estimation of
Claims as provided in the Plan, the Leap Creditor Trust Trustee or Reorganized
Debtors, as applicable, may resolve or adjudicate certain Disputed Claims of
Holders in Unimpaired Classes in the manner in which the amount of such Claim
and the rights of the Holder of such Claim would have been resolved or
adjudicated if the Chapter 11 Cases had not been commenced, subject to any
applicable discharge and limitations on amounts of claims and remedies available
under bankruptcy law. Claims may be subsequently compromised, settled, withdrawn
or resolved by the Leap Creditor Trust Trustee or Reorganized Debtors, as
applicable.
(b) Distributions on Account of Disputed Claims Once They
Are Allowed
Except as set forth in the Leap Creditor Trust Agreement,
within 15 days following the end of each calendar quarter, the Disbursing Agent
will make all distributions on account of any Disputed Claim or Disputed
Interest that has become an Allowed Claim or Allowed Interest in accordance with
the Plan. Such distributions will be made pursuant to the provisions of the Plan
governing the applicable Class. Holders of Disputed Claims or Disputed Interests
that are ultimately Allowed will not be entitled to receive, on the basis of the
amounts ultimately allowed, any interest.
(c) Reserve for Leap Claims by the Leap Creditor Trust
In accordance with the terms of the Leap Creditor Trust, and
as more fully set forth therein, the Leap Creditor Trust Trustee shall be
authorized to make distributions to Holders of Allowed Leap Administrative
Claims and Allowed Leap General Unsecured Claims from time to time. The total
amount of Allowed Leap Administrative Claims and Allowed Leap General Unsecured
Claims (and the value of certain of Leap assets and certain Leap Litigation
Claims) may not be known until after certain distributions are made, either
because certain Claims will be Disputed Claims or because those Claims will not
have been made by their Holders prior to the Effective Date. As a result, the
Leap Creditor Trust Trustee shall hold back from the distributions from the Leap
Creditor Trust (as more fully described in the Leap Creditor Trust Agreement)
reserves in respect of each Administrative Claim and Disputed Claim against Leap
until such Claims are resolved (the "Reserve"), so that the total amount of all
Allowed Leap Administrative Claims and Allowed Leap General Unsecured Claims
includes the sum of (i) each estimated Administrative Claim not otherwise fully
reserved for by Leap and (ii) the amount of each Disputed Claim (or the maximum
amount of any such Disputed Claim as estimated by the Bankruptcy Court pursuant
to Section 502(c) of the Bankruptcy Code, if less),
73
until such Claims are resolved. Distributions from the Leap Creditor Trust will
be made only to the Holders of Claims that have been Allowed.
(d) Reserve for Leap Administrative and Priority Claims
In connection with the Leap General Unsecured Claim Cash
Distribution, prior to the Initial Distribution Date, Leap shall establish an
appropriate reserve in an amount to be agreed upon by Leap and the Official
Committee, to satisfy Allowed Administrative Claims against Leap through and
including the Effective Date (including Claims for compensation and
reimbursement of expenses by professionals providing services to Leap) and
Allowed Priority Claims against Leap. If and to the extent that such reserves
are insufficient to satisfy all such Allowed Administrative Claims against Leap
and Allowed Priority Claims against Leap, such Claims shall be satisfied by
assets transferred or transferable to the Leap Creditor Trust that have not then
been distributed to holders of beneficial interests in the Leap Creditor Trust.
Following the Effective Date, after the satisfaction of all Allowed
Administrative Claims and Allowed Priority Claims against Leap and the
resolution of all Disputed Administrative Claims and Disputed Priority Claims
against Leap, any remaining Cash held in the reserve of Reorganized Leap will be
distributed to the Leap Creditor Trust. Under no circumstances shall Reorganized
Leap, Cricket or any other Debtor or Reorganized Debtor be liable in any way for
any Claims against Leap, including such Allowed Administrative Claims and
Allowed Priority Claims.
(e) Reserve for Cricket Companies' Administrative and
Priority Claims
Prior to the Confirmation Date, Cricket shall establish an
appropriate reserve in an amount to be agreed upon by Cricket and the Informal
Vendor Debt Committee, to satisfy Allowed Administrative Claims against Cricket
and the other Cricket companies through and including the Effective Date
(including Claims for compensation and reimbursement of expenses by
professionals providing services) and Allowed Priority Claims against Cricket
and the other Cricket companies. If and to the extent that such reserves are
insufficient to satisfy all such Allowed Administrative Claims and Allowed
Priority Claims, such Claims shall be satisfied by other assets of Cricket.
Following the Effective Date, after the satisfaction of all Allowed
Administrative Claims and Allowed Priority Claims and the resolution of all
Disputed Administrative Claims and Disputed Priority Claims, any remaining Cash
held in the reserve of Reorganized Cricket will become available to Reorganized
Cricket for use in its discretion. Under no circumstances shall Leap or the Leap
Creditor Trust be liable in any way for any Claims against non-Leap Debtors,
including any such Allowed Administrative Claims and Allowed Priority Claims.
SECTION 8.06 SETOFFS
Except with respect to claims released pursuant to the Plan or
any contract, instrument, release, indenture or other agreement or document
created in connection with the Plan, the Leap Creditor Trust Trustee and the
Reorganized Debtors may, as applicable and pursuant to section 553 of the
Bankruptcy Code or applicable nonbankruptcy law, set off against any Allowed
Claim and the distributions to be made pursuant to the Plan on account of such
Claim (before any distribution is made on account of such Claim), the claims,
rights and causes of action of any nature that the Leap Creditor Trust Trustee
or any of the Reorganized Debtors may hold against the Holder of such Allowed
Claim; provided, however, that neither the failure to effect such a setoff nor
the allowance of any Claim hereunder will constitute a waiver or
74
release by the Leap Creditor Trust or Reorganized Debtors of any such claims,
rights and causes of action that the Debtors, the Leap Creditor Trust or the
Reorganized Debtors may possess against such Holder.
ARTICLE IX.
IMPLEMENTATION AND EFFECT
OF CONFIRMATION OF THIS PLAN
SECTION 9.01 EFFECT OF CONFIRMATION OF THE PLAN
See Sections 5.02, 5.05, 5.09, 5.10 and 6.05 of the Plan.
ARTICLE X.
RETENTION OF JURISDICTION
Notwithstanding the entry of the Confirmation Order and the
occurrence of the Effective Date, the Court will retain such jurisdiction over
the Chapter 11 Cases after the Effective Date to the full extent permitted by
law, including, without limitation, jurisdiction to:
(a) Allow, disallow, determine, liquidate, classify, subordinate,
estimate or establish the priority or secured or unsecured status of any Claim
or Interest, including the resolution of any request for payment of any
Administrative Claim, the resolution of any objections to the allowance or
priority of Claims or Interests and the resolution of any dispute as to the
treatment necessary to reinstate a Claim pursuant to the Plan;
(b) Grant or deny any applications for allowance of compensation
or reimbursement of expenses authorized pursuant to the Bankruptcy Code or the
Plan, for periods ending before the Effective Date;
(c) Resolve any matters related to the assumption or rejection of
any executory contract or unexpired lease to which any Debtor is a party or with
respect to which any Debtor may be liable, and to hear, determine and, if
necessary, liquidate any Claims arising therefrom;
(d) Ensure that distributions to Holders of Allowed Claims or
Allowed Interests are accomplished pursuant to the provisions of the Plan;
(e) Decide or resolve any motions, adversary proceedings,
contested or litigated matters and any other matters and grant or deny any
applications involving the Debtors, Reorganized Debtors or the Chapter 11 Cases
that may be pending on the Effective Date;
(f) Enter such Orders as may be necessary or appropriate to
implement or consummate the provisions of the Plan and all contracts,
instruments, releases, indentures and other agreements or documents created in
connection with the Plan, the Disclosure Statement or the Confirmation Order,
except as otherwise provided herein;
75
(g) Resolve any cases, controversies, suits or disputes that may
arise in connection with the consummation, interpretation or enforcement of the
Plan or the Confirmation Order, including the release and injunction provisions
set forth in and contemplated by the Plan and the Confirmation Order, or any
entity's rights arising under or obligations incurred in connection with the
Plan or the Confirmation Order;
(h) Subject to any restrictions on modifications provided in any
contract, instrument, release, indenture or other agreement or document created
in connection with the Plan, modify the Plan before or after the Effective Date
pursuant to section 1127 of the Bankruptcy Code or modify the Disclosure
Statement, the Confirmation Order or any contract, instrument, release,
indenture or other agreement or document created in connection with the Plan,
the Disclosure Statement or the Confirmation Order; or remedy any defect or
omission or reconcile any inconsistency in any Court Order, the Plan, the
Disclosure Statement, the Confirmation Order or any contract, instrument,
release, indenture or other agreement or document created in connection with the
Plan, the Disclosure Statement or the Confirmation Order, in such manner as may
be necessary or appropriate to consummate the Plan, to the extent authorized by
the Bankruptcy Code;
(i) Issue injunctions, enter and implement other Orders or take
such other actions as may be necessary or appropriate to restrain interference
by any entity with consummation, implementation or enforcement of the Plan or
the Confirmation Order;
(j) Enter and implement such Orders as are necessary or
appropriate if the Confirmation Order is for any reason modified, stayed,
reversed, revoked or vacated;
(k) Determine any other matters that may arise in connection with
or relating to the Plan, this Disclosure Statement, the Confirmation Order or
any contract, instrument, release, indenture or other agreement or document
created in connection with the Plan, the Disclosure Statement or the
Confirmation Order, except as otherwise provided in the Plan; and
(l) Enter an Order concluding the Chapter 11 Cases.
The foregoing list is illustrative only and not intended to
limit in any way the Court's exercise of jurisdiction. If the Court abstains
from exercising jurisdiction or is otherwise without jurisdiction over any
matter arising out of the Chapter 11 Cases, including without limitation the
matters set forth in this Article, this Article shall have no effect upon and
shall not control, prohibit, or limit the exercise of jurisdiction by any other
court having competent jurisdiction with respect to such matter.
ARTICLE XI.
MISCELLANEOUS PROVISIONS
SECTION 11.01 EXEMPTION FROM TRANSFER TAXES
Pursuant to section 1146(c) of the Bankruptcy Code, the
issuance, transfer or exchange of notes or equity securities under the Plan, the
creation of any mortgage, deed of trust or other security interest, the making
or assignment of any lease or sublease, or the making or delivery of any deed or
other instrument of transfer under, in furtherance of, or in connection
76
with the Plan, including, without limitation, any agreements of consolidation,
deeds, bills of sale or assignments executed in connection with any of the
transactions contemplated under the Plan shall not be subject to any stamp, real
estate transfer, mortgage recording or other similar tax.
SECTION 11.02 PAYMENT OF STATUTORY FEES
All fees payable on or before the Effective Date pursuant to
section 1930 of Title 28 of the United States Code shall be paid on or before
the Effective Date. The Debtors will pay quarterly fees to the U.S. Trustee
until entry of a final decree. In addition, the Debtors will file
post-Confirmation quarterly reports in conformance with the U.S. Trustee
Guidelines.
SECTION 11.03 MODIFICATION OR WITHDRAWAL OF THE PLAN
The Debtors reserve the right, in accordance with the
Bankruptcy Code, to amend, modify or withdraw the Plan prior to the entry of the
Confirmation Order. After the entry of the Confirmation Order, the Debtors may
amend or modify the Plan, or remedy any defect or omission or reconcile any
inconsistency in the Plan in such a manner as may be necessary to carry out the
purpose and intent of the Plan with the consent of the Official Committee and
the Informal Vendor Debt Committee.
SECTION 11.04 GOVERNING LAW
Unless a rule of law or procedure is supplied by federal law
(including the Bankruptcy Code and Bankruptcy Rules), the laws of the State of
New York (without reference to the conflicts of laws provisions thereof) shall
govern the construction and implementation of the Plan and any agreements,
documents and instruments executed in connection with the Plan.
SECTION 11.05 FILING OR EXECUTION OF ADDITIONAL DOCUMENTS
On or before the Effective Date, the Debtors shall file with
the Court or execute, as appropriate, such agreements and other documents as may
be necessary or appropriate to effectuate and further evidence the terms and
conditions of the Plan.
SECTION 11.06 WITHHOLDING AND REPORTING REQUIREMENTS
In connection with the Plan and all instruments issued in
connection therewith and distributions thereon, to the extent applicable and
except as provided in Section 5.17(b) of this Plan, the Leap Creditor Trust
Trustee and the Reorganized Debtors shall comply with all withholding and
reporting requirements imposed by any federal, state, local or foreign taxing
authority and all distributions thereunder shall be subject to any such
withholding and reporting requirements.
SECTION 11.07 WAIVER OF RULE 62(a) OF THE FEDERAL RULES OF CIVIL PROCEDURE
The Debtors may request that the Confirmation Order include
(a) a finding that Rule 62(a) of the Federal Rules of Bankruptcy Procedure shall
not apply to the Confirmation Order, and (b) authorization for the Debtors to
consummate the Plan immediately after the entry of the Confirmation Order.
77
SECTION 11.08 HEADINGS
Headings used in the Plan are for convenience and reference
only and shall not constitute a Part of the Plan for any purpose.
SECTION 11.09 EXHIBITS AND SCHEDULES
All Exhibits and Schedules to the Plan and Disclosure
Statement are incorporated into and constitute a part of the Plan as if set
forth herein.
SECTION 11.10 NOTICES
All notices, requests and demands hereunder to be effective
shall be in writing and unless otherwise expressly provided herein, shall be
deemed to have been duly given or made when actually delivered or, in the case
of notice by facsimile transmission, when received and telephonically confirmed,
addressed as follows:
Latham & Watkins LLP Kramer Levin Naftalis & Frankel LLP
Attorneys for the Debtors Attorneys for the Official Committee
633 West Fifth Street, Suite 4000 919 Third Avenue
Los Angeles, California 90071 New York, New York 10022
Attn: Robert A. Klyman Attn: Robert T. Schmidt
Andrews & Kurth L.L.P. Office of the United States Trustee
Attorneys for Informal Vendor Debt Committee 402 West Broadway, Suite 600
805 Third Avenue San Diego, CA 92101
New York, New York 10022 Attn: Tiffany L. Carroll
Attn: Paul N. Silverstein
SECTION 11.11 PLAN SUPPLEMENT
Forms of documents relating to the Amended Debtor Certificates
of Incorporation, Amended Debtor Bylaws, Leap Creditor Trust Agreement and New
Senior Notes Indenture shall be contained in the Plan Supplement and filed with
the Clerk of the Court at least 5 days prior to the date of the Confirmation
Hearing. Upon its filing with the Court, the Plan Supplement may be inspected
during normal Court hours. Holders of Claims may obtain a copy of the Plan
Supplement upon written request to counsel to the Debtors.
SECTION 11.12 CONFLICT
The terms of this Plan shall govern in the event of any
inconsistency with the summaries of the Plan set forth in the Disclosure
Statement.
SECTION 11.13 SUCCESSORS AND ASSIGNS
The rights, benefits and obligations of any Person named or
referred to in the Plan shall be binding on, and shall inure to the benefit of,
any heir, executor, trustee, administrator, successor or assign of such Person.
78
SECTION 11.14 SATURDAY, SUNDAY OR LEGAL HOLIDAY
If any payment or act under the Plan is required to be made or
performed on a date that is not a Business Day, then the making of such payment
or the performance of such act may be completed on the next succeeding Business
Day, but shall be deemed to have been completed as of the required date.
SECTION 11.15 POST-EFFECTIVE DATE EFFECT OF EVIDENCES OF CLAIMS OR INTERESTS
Notes, bonds, stock certificates and other evidences of Claims
against or Interests in the Debtors, and all Instruments of the Debtors (in
either case, other than those executed and delivered as contemplated hereby in
connection with the consummation of the Plan), shall, effective upon the
Effective Date, represent only the right to participate in the distributions
contemplated by the Plan.
SECTION 11.16 SEVERABILITY OF PLAN PROVISIONS
If, prior to Confirmation, any term or provision of the Plan
that does not govern the treatment of Claims or Interests provided for herein or
the conditions to the Effective Date is held by the Court to be invalid, void,
or unenforceable, the Court shall have the power to alter and interpret such
term or provision to make it valid or enforceable to the maximum extent
practicable, consistent with the original purpose of the term or provision held
to be invalid, void, or unenforceable, and such term or provision shall then be
applicable as altered or interpreted. Notwithstanding any such holding,
alteration or interpretation, the remainder of the terms and provisions of the
Plan will remain in full force and effect and will in no way be affected,
impaired, or invalidated by such holding, alteration, or interpretation. The
Confirmation Order shall constitute a judicial determination, and shall provide,
that each term and provision of the Plan, as it may have been altered or
interpreted in accordance with the foregoing, is valid and enforceable pursuant
to its terms.
SECTION 11.17 BALLOTING
Each Holder of an Allowed Claim or an Allowed Interest
entitled to vote on the Plan will receive a Ballot. The Ballot will contain two
boxes, one indicating acceptance of the Plan and the other indicating rejection
of the Plan. Holders of Allowed Claims or Allowed Interests who elect to vote on
the Plan must mark one or the other box pursuant to the instructions contained
on the Ballot. Any executed Ballot that does not indicate acceptance or
rejection of the Plan will be deemed to be an acceptance of the Plan.
SECTION 11.18 NO ADMISSIONS OR WAIVER OF OBJECTIONS
Notwithstanding anything herein to the contrary, nothing
contained in the Plan shall be deemed as an admission by any Debtor, the
Official Committee or the Informal Vendor Debt Committee with respect to any
matter set forth herein including, without limitation, liability on any Claim or
the propriety of any Claims classification. The Debtors are not bound by any
statements herein or in the Disclosure Statement as judicial admissions.
79
SECTION 11.19 SURVIVAL OF SETTLEMENTS
All Court-approved settlements shall survive consummation of
the Plan, except to the extent that any provision of any such settlement is
inconsistent with the Plan, in which case the provisions of the Plan shall
supersede such inconsistent provision of such settlement.
Dated: July __, 2003 LEAP WIRELESS INTERNATIONAL, INC.
By: ___________________________________
Its: ___________________________________
Dated: July __, 2003 CRICKET COMMUNICATIONS HOLDINGS, INC.
By: ___________________________________
Its: ___________________________________
Dated: July __, 2003 CRICKET COMMUNICATIONS, INC.
By: ___________________________________
Its: ___________________________________
Dated: July __, 2003 FOR EACH OF THE LICENSE HOLDING COMPANIES
By: ___________________________________
Their: ___________________________________
Dated: July __, 2003 FOR EACH OF THE PROPERTY HOLDING COMPANIES
By: ___________________________________
Their: ___________________________________
Dated: July __, 2003 FOR EACH OF THE OTHER SUBSIDIARIES
By: ___________________________________
Their: ___________________________________
80