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.
FIFTH AMENDED JOINT PLAN OF REORGANIZATION
DATED AS OF JULY 30, 2003
LATHAM & WATKINS
Michael S. Lurey
Robert A. Klyman
Eric D. Brown
633 West Fifth Street, Suite 4000
Los Angeles, California 90071
Counsel for Debtors and
Debtors-in-Possession
Dated: July 30, 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................................. 25
ARTICLE III. CLASSIFICATION OF CLAIMS AND INTERESTS................................................. 25
Section 3.01 Unclassified Claims (Applicable to All Debtors)........................ 41
Section 3.02 Treatment of Classified Claims Against and Interests in Leap........... 47
Section 3.03 Treatment of Classified Claims Against and Interests in CCH............ 49
Section 3.04 Treatment of Classified Claims Against and Interests in Cricket........ 50
Section 3.05 Treatment of Classified Claims Against and Interests in License
Holding Companies (applicable to each License Holding Company)......... 52
Section 3.06 Treatment of Classified Claims Against and Interests in Property
Holding Companies (applicable to each Property Holding Company)........ 53
Section 3.07 Treatment of Classified Claims Against and Interests in Other
Subsidiaries (applicable to each Other Subsidiary)..................... 55
ARTICLE IV. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES................................... 56
Section 4.01 Assumption and Cure.................................................... 56
Section 4.02 Rejection and Damages.................................................. 57
ARTICLE V. MEANS FOR EXECUTION AND IMPLEMENTATION OF THE PLAN....................................... 58
Section 5.01 Overview of Plan Implementation........................................ 58
Section 5.02 Distributions.......................................................... 58
Section 5.03 The Official Committee................................................. 60
Section 5.04 Vesting Of Assets...................................................... 60
Section 5.05 Preservation Of Causes Of Action....................................... 60
Section 5.06 Amended Debtor Bylaws And Certificates of Incorporation................ 62
Section 5.07 Composition of Management and the Directors of the Reorganized
Debtors................................................................ 62
Section 5.08 Disbursing Agents...................................................... 63
Section 5.09 Discharge of Reorganized Debtors and Injunction........................ 63
Section 5.10 No Liability for Solicitation or Participation......................... 65
Section 5.11 Limitation of Liability................................................ 65
Section 5.12 Objections to Claims................................................... 65
Section 5.13 Other Documents and Actions............................................ 67
Section 5.14 Corporate Action....................................................... 67
Section 5.15 Retiree Benefits....................................................... 68
Section 5.16 Employee Benefits...................................................... 68
Section 5.17 Certain Provisions In Respect of the Old Leap Notes, and the Old
Indenture Trustee...................................................... 68
Section 5.18 Executory Contracts and Unexpired Leases Entered Into and Other
Obligations Incurred After the Petition Date........................... 69
ARTICLE VI. CONFIRMATION AND EFFECTIVE DATE CONDITIONS.............................................. 69
Section 6.01 Conditions To Confirmation............................................. 69
Section 6.02 Conditions To Initial Distribution Date................................ 70
Section 6.03 Conditions To Effective Date........................................... 70
Section 6.04 Waiver of Conditions................................................... 70
Section 6.05 Effect of Failure of Conditions........................................ 70
Section 6.06 Order Denying Confirmation............................................. 72
ARTICLE VII. CONFIRMABILITY OF PLAN AND CRAMDOWN.................................................... 72
ARTICLE VIII. PROVISIONS REGARDING VOTING AND DISTRIBUTIONS UNDER THE PLAN AND TREATMENT OF
DISPUTED, CONTINGENT AND UNLIQUIDATED CLAIMS AND INTERESTS............................ 72
Section 8.01 Voting of Claims and Interests......................................... 72
Section 8.02 Method of Distributions Under the Plan................................. 72
Section 8.03 Special Procedures for Lost, Stolen, Mutilated or Destroyed
Instruments............................................................ 75
Section 8.04 Undeliverable or Unclaimed Distributions............................... 75
Section 8.05 Disputed Claims; Reserve and Estimations............................... 75
Section 8.06 Setoffs................................................................ 78
ARTICLE IX. IMPLEMENTATION AND EFFECT OF CONFIRMATION OF THIS PLAN.................................. 78
Section 9.01 Effect of Confirmation of the Plan..................................... 78
ARTICLE X. RETENTION OF JURISDICTION................................................................ 78
ARTICLE XI. MISCELLANEOUS PROVISIONS................................................................ 80
Section 11.01 Exemption From Transfer Taxes.......................................... 80
Section 11.02 Payment of Statutory Fees.............................................. 80
Section 11.03 Modification or Withdrawal of the Plan................................. 80
Section 11.04 Governing Law.......................................................... 80
Section 11.05 Filing or Execution of Additional Documents............................ 80
Section 11.06 Withholding and Reporting Requirements................................. 81
Section 11.07 Waiver of Rule 62(a) of the Federal Rules of Civil Procedure........... 81
Section 11.08 Headings............................................................... 81
Section 11.09 Exhibits and Schedules................................................. 81
Section 11.10 Notices................................................................ 81
Section 11.11 Plan Supplement........................................................ 82
Section 11.12 Conflict............................................................... 82
Section 11.13 Successors and Assigns................................................. 82
Section 11.14 Saturday, Sunday or Legal Holiday...................................... 82
Section 11.15 Post-Effective Date Effect of Evidences of Claims or Interests......... 82
Section 11.16 Severability of Plan Provisions........................................ 82
Section 11.17 Balloting.............................................................. 83
Section 11.18 No Admissions or Waiver of Objections.................................. 83
Section 11.19 Survival of Settlements................................................ 83
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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 Fifth Amended Joint Plan of Reorganization (defined
herein as the "Plan") for the resolution of their outstanding Claims and
Interests. Reference is made to the Disclosure Statement Accompanying Fifth
Amended Joint Plan of Reorganization dated as of July 30, 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.
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(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 current and former Holders
of (in their capacity as such Holders), the current and former administrative
agents under the Vendor Debt Facilities (in their capacity as such agents) 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,
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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 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.
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THE OFFICIAL COMMITTEE URGES HOLDERS OF LEAP GENERAL UNSECURED
CLAIMS TO READ THE DISCLOSURE STATEMENT AND VOTE IN FAVOR OF THE PLAN.
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
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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 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
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b. any amount otherwise authorized
by Final Order or the Plan.
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.
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Business Day means any day on which commercial banks are
open for business, and not authorized to
close, in the City of New 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
7
District of California; and (c) any other
court having jurisdiction over the Chapter
11 Cases.
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 30, 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
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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 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 September 15, 2003 (or such other date
established by Court order).
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 (if such committee has not
disbanded) and the Debtors or Reorganized
Debtors, as applicable, 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 Debtors or the
Reorganized Debtors, as applicable, with the
prior approval of the Informal Vendor Debt
Committee (if such committee has not
disbanded), reasonably determines that the
proposed defendant of the
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claim or action is a vendor, customer or
other party with whom the Debtors or
Reorganized Debtors, as applicable, have, or
reasonably expect to have, a material
business relationship, the Debtors or
Reorganized Debtors, as applicable, 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 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 Debtors
or Reorganized Debtors, as applicable, do
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 or the
Reorganized Debtors, as applicable, 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 Debtors or Reorganized Debtors,
as applicable, with the prior approval of
the Informal Vendor Debt Committee (if such
committee has not disbanded), 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
Debtors or Reorganized Debtors, as
10
applicable, 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 Debtors or Reorganized Debtors do 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 to
be 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
11
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 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
12
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., 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
13
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.
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.
14
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 Actions; (v) any and all Tax
Refunds that are to be delivered to the Leap
Creditor Trust in accordance with this Plan;
(vi) Cash 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 Vendor 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
15
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.
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
16
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.
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.
17
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
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.
18
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.
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
19
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 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 Fifth Amended Joint Chapter 11
Plan of Reorganization 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
20
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 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
21
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; 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,
22
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.
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, September 2, 2003, the supplemental
bar date established by the Court for the
Additional Parties.
23
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
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 Corporation.
Voting Deadline means the date on which Ballots must be
received by the Voting Agent. For purposes
of the Plan, the Voting Deadline is
September 8, 2003 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.
24
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 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
25
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.
26
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.
27
TYPE OF ALLOWED ESTIMATED
CLASS CLAIM OR INTEREST TREATMENT RECOVERY
- ----- ----------------- --------------------------------- ---------
2A et Other Secured Unimpaired if paid in full in Cash 100%
seq. Claims or 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.
28
TYPE OF ALLOWED ESTIMATED
CLASS CLAIM OR INTEREST TREATMENT RECOVERY
- ----- ----------------- --------------------------------- ---------
UNSECURED CLAIMS:
3 Priority Claims Unimpaired; paid in full by Leap on 100%
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 Leap and
the Holder of such Claim.
4 General Unsecured Impaired; each Holder of an Allowed 13-14%(2)
Claims Class 4 Claim to receive a Pro Rata
distribution of beneficial interests
in the Leap Creditor Trust.
4A Subordinated Impaired; each Holder of an Allowed 0%
General Unsecured Class 4A Claim to receive no Cash or
Claims property on account of such Claim.
5 Intercompany Impaired; each Holder of an Allowed 0%
Claims Class 5 Claim to receive the
Intercompany Release as of the
Initial Distribution Date.
6 Old Leap Common Impaired; each Holder of an Allowed 0%
Stock and Securities Class 6 Interest to receive no Cash
Claims against Leap or property on account of such
Interest.
7 Old Stock Rights in Impaired; each Holder of an Allowed 0%
Leap and All Claims Class 7 Interest to receive no Cash
Arising Out of Such or property on account of such
Old Stock Rights Interest.
- --------------
(2) The lower range of recovery assumes total General Unsecured Claims against
Leap of $749 million, including an estimated $17 million of rejection
damages for leases and contracts that may be rejected. The amount of
rejection damages could vary materially from this estimate. The upper range
of recovery assumes total General Unsecured Claims against Leap of $732
million and no rejection damages.
29
CLAIMS AGAINST AND INTERESTS IN CCH
TYPE OF ALLOWED ESTIMATED
CLASS CLAIM OR INTEREST TREATMENT RECOVERY
- ----- ----------------- --------------------------------- ---------
- - Administrative Paid in full in Cash by CCH on the 100%
Claims Effective 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 100%
Effective Date or as soon as
practicable thereafter.
SECURED CLAIMS:
1A Old Vendor Debt Impaired; on the Effective Date or 30-37%
Claim as soon as 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 Claims Unimpaired if paid in full in Cash 100%
seq. or 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
30
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 100%
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 CCH and the
Holder of such Claim.
4 General Unsecured Impaired; each Holder of an Allowed 0%
Claims Class 4 Claim shall receive no Cash
or property on account of such
Claim.
5 Intercompany Claims Impaired; each Holder of an Allowed 0%
Class 5 Claim to receive the
Intercompany Release as of the
Initial Distribution Date.
6 Old CCH Common Stock Impaired; on the Effective Date, CCH 0%
and Securities shall be merged into Cricket.
Claims against CCH
31
TYPE OF ALLOWED ESTIMATED
CLASS CLAIM OR INTEREST TREATMENT RECOVERY
- ----- ----------------- --------------------------------- ---------
7 Old Stock Rights in Impaired; each Holder of an Allowed 0%
CCH and All Claims Class 7 Interest shall receive no
Arising Out of Such Cash or property on account of such
Old Stock Rights Interest.
CLAIMS AGAINST AND INTERESTS IN CRICKET
TYPE OF ALLOWED ESTIMATED
CLASS CLAIM OR INTEREST TREATMENT RECOVERY
- ----- ----------------- --------------------------------- ---------
- - Administrative Paid in full in Cash by Reorganized 100%
Claims Cricket on 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 100%
either (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 Impaired; on the Effective Date or 30-37%
Claims as soon as 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 Claims Unimpaired if paid in full in Cash 100%
seq. or Reinstated on the Effective Date
or as soon as practicable
thereafter; Impaired if Holder of
Allowed Class 2A et seq. Claim
receives alternative treatment.
32
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 100%
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 the terms and
conditions of any agreements or
understandings relating thereto
between Cricket and the Holder of
such Claim.
33
TYPE OF ALLOWED ESTIMATED
CLASS CLAIM OR INTEREST TREATMENT RECOVERY
- ----- ----------------- --------------------------------- ---------
4 General Unsecured Impaired; each Holder of an Allowed 0%
Claims Class 4 Claim shall receive on a Pro
Rata basis its share of the Cricket
General Unsecured Creditor
Distribution.
5 Intercompany Impaired; each Holder of an Allowed 0%
Claims Class 5 Claim shall receive the
Intercompany Release as of the
Initial Distribution Date.
6 Old Common Stock Impaired; each Holder of an Allowed 0%
of Cricket and Class 6 Interest shall receive no
Securities Claims Cash or property on account of such
against Cricket Interest.
7 Old Stock Rights in Impaired; each Holder of an Allowed 0%
Cricket and All Class 7 Interest shall receive no
Claims Arising Out Cash or property on account of such
of Such Old Stock Interest.
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 Paid in full in Cash by the 100%
Claims applicable 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.
34
TYPE OF ALLOWED ESTIMATED
CLASS CLAIM OR INTEREST TREATMENT RECOVERY
- ----- ----------------- --------------------------------- ---------
- - Priority Tax Claims Paid in full in Cash by the 100%
applicable Reorganized License
Holding Company on the Effective
Date or as soon as practicable
thereafter.
SECURED CLAIMS:
1A Old Vendor Debt Impaired; on the Effective Date or 30-37%
Claim as soon as 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 100%
thereafter as 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 100%
seq. Claims or 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
35
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 100%
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 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 Impaired; each Holder of an Allowed 0%
Claims Class 4 Claim to receive no Cash or
property on account of such Claims.
5 Intercompany Claims Impaired; each Holder of an Allowed 0%
Class 5 Claim to receive the
Intercompany Release as of the
Initial Distribution Date.
6 Old License Holding Impaired; each Holder of an Allowed 0%
Company Common Stock Class 6 Interest shall retain no
and Securities Cash or property on account of such
Claims Against Interest.
License Holding
Company
36
TYPE OF ALLOWED ESTIMATED
CLASS CLAIM OR INTEREST TREATMENT RECOVERY
- ----- ----------------- --------------------------------- ---------
7 Old Stock Rights in Impaired; each Holder of an Allowed 0%
License Holding Class 7 Interest shall receive no
Company and All Cash or property on account of such
Claims Arising 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 Paid in full in Cash by the 100%
Claims applicable 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 100%
applicable Reorganized Property
Holding Company on the Effective
Date or as soon as practicable
thereafter.
SECURED CLAIMS:
1A Old Vendor Debt Impaired; on the Effective Date or 30-37%
Claims as soon as 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 Claims Unimpaired if paid in full in Cash 100%
seq. or 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
37
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 100%
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 the terms and
conditions of any agreements or
understandings relating thereto
between the applicable Property
Holding Company and the Holder of
such Claim.
38
TYPE OF ALLOWED ESTIMATED
CLASS CLAIM OR INTEREST TREATMENT RECOVERY
- ----- ----------------- --------------------------------- ---------
4 General Unsecured Impaired; each Holder of an Allowed 0%
Claims Class 4 Claim to receive no Cash or
property on account of such Claim.
5 Intercompany Claims Impaired; each Holder of an Allowed 0%
Class 5 Claim to receive the
Intercompany Release as of the
Initial Distribution Date.
6 Old Property Holding Impaired; each Holder of an Allowed 0%
Company Common Stock Class 6 Interest shall receive no
and Securities Cash or property on account of such
Claims Against Interest.
Property Holding
Company
7 Old Stock Rights in Impaired; each Holder of an Allowed 0%
Property Holding Class 7 Interest shall receive no
Company and All Cash or property on account of such
Claims Arising 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 Paid in full in Cash by the 100%
Claims applicable 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 100%
applicable Reorganized Other
Subsidiary on the Effective Date or
as soon as practicable thereafter.
39
TYPE OF ALLOWED ESTIMATED
CLASS CLAIM OR INTEREST TREATMENT RECOVERY
- ----- ----------------- --------------------------------- ---------
SECURED CLAIMS:
1A et Other Secured Unimpaired if paid in full in Cash 100%
seq. Claims or 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.
40
TYPE OF ALLOWED ESTIMATED
CLASS CLAIM OR INTEREST TREATMENT RECOVERY
- ----- ----------------- --------------------------------- ---------
UNSECURED CLAIMS:
2 Priority Claims Unimpaired; paid in full by the 100%
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 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 Impaired; each Holder of an Allowed 0%
Claims Class 3 Claim to receive no Cash or
property on account of such Claims.
4 Intercompany Impaired; each Holder of an Allowed 0%
Claims Class 4 Claim to receive the
Intercompany Release as of the
Initial Distribution Date.
5 Old Other Subsidiary Impaired; each Holder of an Allowed 0%
Common Stock and Class 5 Interest shall receive no
Securities Claims Cash or property on account of such
Against Other Interest.
Subsidiary
6 Old Stock Rights in Impaired; each Holder of an Allowed 0%
Other Subsidiary and Class 6 Interest shall receive no
All Claims Arising Cash or property on account of such
Out of Such Old Interest.
Stock Rights
GENERAL PROVISIONS FOR TREATMENT OF CLAIMS AND INTERESTS
SECTION 3.01 UNCLASSIFIED CLAIMS (APPLICABLE TO ALL DEBTORS)
(a) Administrative Claims.
(i) General.
41
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
42
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
43
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.
44
(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.
Nothing contained herein shall diminish the reserve established for cure amounts
set forth in Section 4.01 hereof.
(vi) Reserve for Disputed Old Vendor
Debt Claims.
Prior to the Effective Date, Cricket shall establish a reserve
in respect of each Disputed Old Vendor Debt Claim, by holding back that portion
of the Old Vendor Debt Distribution that would be distributed in respect of each
such Disputed Old Vendor Debt Claim as if such Claim was an Allowed Claim on the
Effective Date, until such Disputed Claim is resolved. If the resolution of a
Disputed Old Vendor Debt Claim results in such Claim becoming an Allowed Old
Vendor Debt Claim, that portion of the Old Vendor Debt Distribution held back in
respect of such Claim shall be Distributed (to the extent of the Allowed portion
of such Old Vendor Debt Claim) to the Holder thereof as promptly as practicable.
Following the Effective Date, after the resolution of all such Disputed Old
Vendor Debt Claims, any remaining
45
Reorganized Leap Common Stock or New Senior Notes held in the reserve of
Reorganized Cricket shall be distributed to the Holders of Allowed Old Vendor
Debt Claims on a Pro Rata basis.
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.
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.
46
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.
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
47
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 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. To the
extent the Court enters an Order subordinating a Class 4 Claim against Leap,
that claim will be placed in Class 4A. If any such 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. 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.
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.
48
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, 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
49
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, 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
50
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 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.
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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.
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
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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 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;
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(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 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.
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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 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
55
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.
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 Reorganized 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.
If a Debtor (other than Cricket) assumes a contract or lease
and the non-Debtor party to such contract or lease objects to such Debtor's
ability to provide adequate assurance of future performance (or if the time
period for a non-Debtor to object to the cure amount has not yet lapsed), the
Debtor may assign the contract or lease to Cricket. In such a circumstance,
Cricket may demonstrate Cricket's ability to provide adequate assurance of
future performance.
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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. Notwithstanding
the foregoing, if, as of the date the Court enters the Confirmation Order, there
is pending before the Court a dispute concerning the cure amount or adequate
assurance for any particular contract or lease (or if the time period for a
non-Debtor to object to the cure amount has not yet lapsed), the assumption of
such contract or lease shall be effective as of the date the Bankruptcy Court
enters an order resolving any such dispute and authorizing assumption by the
applicable Debtor. Moreover, the assumption of the Lucent System Equipment
Purchase Agreement is conditioned upon payment by Cricket of the applicable cure
amount and Cricket demonstrating adequate assurance of future performance.
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 or reduce the proposed cure amounts listed thereon 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). The reserve described in the preceding sentence shall not be reduced by
any other reserve established pursuant to the Plan.
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, with the approval of the Official
Committee or the Leap Creditor Trust Trustee, as applicable, for executory
contracts and unexpired leases to which Leap is a party or with the approval of
the Informal Vendor Debt Committee for all other executory contracts and
unexpired leases. 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. The
Reorganized Debtors and the
57
Leap Creditor Trust Trustee shall have 60 days from the date of such filing to
File an objection to any Claim for rejection damages.
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 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
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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 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
59
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.
Notwithstanding the foregoing, the Debtors reserve the right
to merge, on or prior to the Effective Date with the consent of the Informal
Vendor Debt Committee, (a) one or more License Holding Companies into another
License Holding Company or into Cricket or Reorganized Cricket, and/or (b) one
or more Property Holding Companies into another Property Holding Company or into
Cricket or Reorganized Cricket.
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 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
60
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 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.
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 current of
Old Vendor Debt (in the capacity as such Holder) and the current and former
administrative agents under the Vendor Debt Facilities (in the capacity as such
agent) 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 the current or former Holders of Old
Vendor Debt (in the capacity as such Holder) or the current or former
administrative agents under the Vendor Debt Facilities (in the capacity as such
agent) 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 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 the current or former Holders of
Old Vendor Debt (in the capacity as such Holder) or current or former
administrative agents under the Vendor Debt Facilities (in the capacity as such
agent), 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 current and former
Holders
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of Old Vendor Debt (in the capacity as such Holder) and the current and former
administrative agents under the Vendor Debt Facilities (in the capacity as such
agent) 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 effectiveness of the foregoing releases to former Holders
of Old Vendor Debt (in the capacity as such Holder) and former administrative
agents under the Vendor Debt Facilities (in the capacity as such agent) is
expressly conditioned upon the granting of mutual releases by such parties to
Leap, its Estate and the Holders of Leap General Unsecured Claims. If a former
Holder of Old Vendor Debt (in the capacity as such Holder) or former
administrative agent under the Vendor Debt Facilities (in the capacity as such
agent) asserts any claim released hereunder against Leap, its Estate and the
Holders of Leap General Unsecured Claims, such former Holder of Old Vendor Debt
(in the capacity as such Holder) or former administrative agent under the Vendor
Debt Facilities (in the capacity as such agent) shall not be entitled to the
benefits of the releases described herein.
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
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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, 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
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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.
Except as provided in the Confirmation Order, 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 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.
The foregoing releases do not extend to any claim (a) by
Lucent that could be brought with respect to any transfer by a Debtor to Cricket
Performance I (to the extent such claim was preserved by a timely filed proof of
claim) or against Cricket Performance I or (b) by Nortel that could be brought
with respect to any transfer by a Debtor to Cricket Performance II
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(to the extent such claim was preserved by a timely filed proof of claim) or
against Cricket Performance II).
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 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, nor (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
65
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.
Pursuant to Orders with respect to the Debtors' interim use of cash collateral,
the Court limited the ability of certain parties-in-interest to challenge the
validity, priority or enforceability of the Liens asserted against the Debtors
by the Holders of Old Vendor Debt. As of the date hereof, no party-in-interest
may bring such a challenge, other than the Official Committee, which must bring
any such challenge no later than September 26, 2003. Nothing contained herein
shall modify any of the foregoing Orders.
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.
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
66
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, AS APPLICABLE, 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 SEPTEMBER 2, 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, AS APPLICABLE, 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 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.
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.
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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.
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
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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 liability of
any of the Debtors thereunder shall be discharged pursuant to this Plan and
Section 1141 of the Bankruptcy Code.
SECTION 5.18 EXECUTORY CONTRACTS AND UNEXPIRED LEASES ENTERED INTO AND
OTHER OBLIGATIONS INCURRED AFTER THE PETITION DATE
Executory contracts and unexpired leases entered into and
other obligations incurred after the Petition Date by the Debtors shall be
performed by the Debtors or Reorganized Debtors in the ordinary course of their
businesses. Accordingly, such executory contracts, unexpired leases and other
obligations shall survive and remain unaffected by entry of the Confirmation
Order or the occurrence of the Effective Date under and the effectiveness of the
Plan.
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; and
(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;
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(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 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
70
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 equal to but not
greater than the value of the Leap General Unsecured Claim Equity Distribution,
to be paid at a time and in a manner to be agreed upon by the Official
Committee, the Informal Vendor Debt Committee and the Debtors, or otherwise
pursuant to Court Order; 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 current and
former Holders of Old Vendor Debt (in the capacity as such Holder) and the
current and former administrative agents under the Vendor Debt Facilities (in
the capacity as such agent)) from all Intercompany Claims and Litigation Claims
(as described 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 current and former Holders of Old
Vendor Debt (in the capacity as such Holder) and the current and former
administrative agents under the Vendor Debt Facilities (in the capacity as such
agent), 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. The
effectiveness of the foregoing releases to former Holders of Old Vendor Debt (in
the capacity as such Holder) and former administrative agents under the Vendor
Debt Facilities (in the capacity as such agent) is expressly conditioned upon
the granting of mutual releases by such parties to Leap, its Estate and the
Holders of Leap General Unsecured Claims. If a former Holder of Old Vendor Debt
(in the capacity as such Holder) or former administrative agent under the Vendor
Debt Facilities (in the capacity as such agent) asserts any claim released
hereunder against Leap, its Estate and the Holders of Leap General Unsecured
Claims, such former Holder of Old Vendor Debt (in the capacity as such Holder)
or former administrative agent under the Vendor Debt Facilities (in the capacity
as such agent) shall not be entitled to the benefits of the releases described
herein.
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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
(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
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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. Notwithstanding the foregoing, distributions to Holders of
Disputed Secured Claims shall be paid as soon as practicable after such Claims
are Allowed.
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 and the Leap Creditor Trust Trustee, 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. Any compensation for distribution services rendered
by the Leap Creditor Trust Trustee pursuant to the Plan or the Leap Creditor
Trust and reimbursement of reasonable out-of-pocket expenses incurred in
connection with such services shall be paid from Cash or assets transferred to
the Leap Creditor Trust.
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.
(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
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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
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.
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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 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
75
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. Notwithstanding the foregoing,
distributions to Holders of Disputed Secured Claims shall be paid as soon as
practicable after such Claims are Allowed.
(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, (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), and (iii) potential
rejection claims, until such Claims are resolved. Distributions from the Leap
Creditor Trust will be made only to the Holders of Claims that have been
Allowed.
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(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.
Nothing contained herein shall diminish the reserve established for cure amounts
set forth in Section 4.01 hereof.
(f) Reserve for Disputed Old Vendor Debt Claims
Prior to the Effective Date, Cricket shall establish a reserve
in respect of each Disputed Old Vendor Debt Claim, by holding back that portion
of the Old Vendor Debt Distribution that would be distributed in respect of each
such Disputed Old Vendor Debt Claim as if such Claim was an Allowed Claim on the
Effective Date, until such Disputed Claim is resolved. If the resolution of a
Disputed Old Vendor Debt Claim results in such Claim becoming an Allowed Old
Vendor Debt Claim, that portion of the Old Vendor Debt Distribution held back in
respect of such Claim shall be Distributed (to the extent of the Allowed portion
of such Old Vendor Debt Claim) to the Holder thereof as promptly as practicable.
Following the Effective Date, after the resolution of all such Disputed Old
Vendor Debt Claims, any remaining Reorganized Leap Common Stock or New Senior
Notes held in the reserve of Reorganized
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Cricket shall be distributed to the Holders of Allowed Old Vendor Debt Claims on
a Pro Rata basis.
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 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;
78
(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 Leap Creditor
Trust arising out of or related to the Chapter 11 Cases;
(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;
(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;
(l) Resolve any disputes that the Leap Creditor Trust Trustee may
assert with respect to whether the Debtors or Reorganized Debtors reasonably
determined that a proposed defendant is a "Material Vendor or Customer" in the
case of a potential Eligible Leap Avoidance Action, or that a proposed cause of
action is a "Materially Adverse Action" in the case of a potential Eligible Leap
Cause of Action; and
(m) Enter an Order concluding the Chapter 11 Cases.
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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 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 (or,
if the Official Committee has disbanded, the Leap Creditor Trust Trustee) 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
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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.
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 402 West Broadway, Suite 600
Committee San Diego, CA 92101
805 Third Avenue Attn: Tiffany L. Carroll
New York, New York 10022
Attn: Paul N. Silverstein
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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.
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.
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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.
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 30, 2003 LEAP WIRELESS INTERNATIONAL, INC.
By: /s/ HARVEY P. WHITE
---------------------------------------
Its: Chief Executive Officer
Dated: July 30, 2003 CRICKET COMMUNICATIONS HOLDINGS, INC.
By: /s/ HARVEY P. WHITE
---------------------------------------
Its: Chief Executive Officer
Dated: July 30, 2003 CRICKET COMMUNICATIONS, INC.
By: /s/ HARVEY P. WHITE
---------------------------------------
Its: Chief Executive Officer
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Dated: July 30, 2003 FOR EACH OF THE LICENSE HOLDING COMPANIES
By: /s/ HARVEY P. WHITE
---------------------------------------
Its: Chief Executive Officer
Dated: July 30, 2003 FOR EACH OF THE PROPERTY HOLDING COMPANIES
By: /s/ HARVEY P. WHITE
---------------------------------------
Its: Chief Executive Officer
Dated: July 30, 2003 FOR EACH OF THE OTHER SUBSIDIARIES
By: /s/ HARVEY P. WHITE
---------------------------------------
Its: Chief Executive Officer
84