UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
In re ) Consolidated Case No. 1-91-00100
)
)
EAGLE-PICHER INDUSTRIES, ) Chapter 11
INC., et al., )
) JUDGE PERLMAN
Debtors. )
)
)
- -------------------------------
THIRD AMENDED CONSOLIDATED PLAN OF REORGANIZATION
[THIS PAGE LEFT BLANK INTENTIONALLY]
ARTICLE 1
DEFINITIONS ............................................................... 1
1.1 Defined Terms ................................................... 1
1.1.1 Administrative Expense .................................... 1
1.1.2 Administrative Expense Creditor ........................... 1
1.1.3 Affiliate ................................................. 1
1.1.4 Affiliate Claims and Interests ............................ 1
1.1.5 Agent Bank ................................................ 2
1.1.6 Allowed ................................................... 2
1.1.7 Allowed Amount ............................................ 3
1.1.8 Amended and Restated Articles of Incorporation ............ 3
1.1.9 Amended and Restated Code of Regulations .................. 3
1.1.10 Amplicon Lease Secured Claim ............................. 3
1.1.11 Articles of Incorporation ................................ 3
1.1.12 Asbestos and Lead PI Permanent Channeling Injunction ..... 3
1.1.13 Asbestos and Lead PI Trust Agreement ..................... 4
1.1.14 Asbestos or Lead Contribution Claim ...................... 4
1.1.15 Asbestos PD Trust ........................................ 4
1.1.16 Asbestos PD Trust Agreement .............................. 4
1.1.17 Asbestos PD Trust Funding Obligation ..................... 4
1.1.18 Asbestos PD Trust Share .................................. 4
1.1.19 Asbestos Personal Injury Claim ........................... 4
1.1.20 Asbestos Property Damage Claim ........................... 5
1.1.21 Asbestos Property Damage Contribution Claims ............. 5
1.1.22 Available Cash ........................................... 5
1.1.23 Ballot ................................................... 6
1.1.24 Ballot Date .............................................. 6
1.1.25 Bankruptcy Code .......................................... 6
1.1.26 Bankruptcy Court ......................................... 6
1.1.27 Bankruptcy Rules ......................................... 6
1.1.28 Bearer Unsecured Debt Securities ......................... 6
1.1.29 Board of Directors ....................................... 6
1.1.30 Business Day ............................................. 6
1.1.31 Chapter 11 Cases ......................................... 6
1.1.32 Claim .................................................... 6
1.1.33 Claims Settlement Guidelines ............................. 6
1.1.34 Claims Trading Injunction ................................ 6
1.1.35 Confirmation Date ........................................ 7
1.1.36 Confirmation Deadline .................................... 7
1.1.37 Confirmation Order ....................................... 7
1.1.38 Connecticut Mutual Note Secured Claim .................... 7
1.1.39 Contingent Claim ......................................... 7
1.1.40 Convenience Claim ........................................ 7
1.1.41 Creditor ................................................. 7
1.1.42 Debtors .................................................. 7
1.1.43 Debtors in Possession .................................... 7
1.1.44 Demand ................................................... 8
1.1.45 Designated Real Property Tax Claim ...................... 8
1.1.46 DIP Credit Facility ..................................... 8
1.1.47 DIP Credit Facility Claim ............................... 8
1.1.48 DIP Lenders ............................................. 8
1.1.49 Disallowed Claim ........................................ 8
1.1.50 Disputed Claim .......................................... 8
1.1.51 Disputed Claim Amount ................................... 8
1.1.52 Distribution ............................................ 8
1.1.53 Distribution Amount ..................................... 8
1.1.54 Distribution Value ...................................... 8
1.1.55 District Court .......................................... 8
1.1.56 Divestiture Notes ....................................... 9
1.1.57 Eagle-Picher ............................................ 9
1.1.58 Effective Date .......................................... 9
1.1.59 Encumbrance ............................................. 9
1.1.60 Entity .................................................. 9
1.1.61 Environmental Claim ..................................... 9
1.1.62 Environmental Settlement Agreement ...................... 9
1.1.63 Equity Interest ......................................... 9
1.1.64 Equity Security Holders' Committee ...................... 9
1.1.65 Equity Value: ........................................... 9
1.1.66 Estimated Amount ........................................ 10
1.1.67 Existing Eagle-Picher Common Stock ...................... 10
1.1.68 Final Distribution Date ................................. 10
1.1.69 Final Order ............................................. 10
1.1.70 First Fidelity Group .................................... 10
1.1.71 First Fidelity Lease Secured Claim ...................... 10
1.1.72 Fleet Credit Secured Claim .............................. 10
1.1.73 Future Claimants' Representative ........................ 10
1.1.74 GE Capital Secured Claim ................................ 10
1.1.75 Grove IRB Secured Claim ................................. 11
1.1.76 Henry County IRBs ....................................... 11
1.1.77 Hillsdale ............................................... 11
1.1.78 Houston IRBs ............................................ 11
1.1.79 IBM Credit Corporation Secured Claim .................... 11
1.1.80 Initial Distribution Date ............................... 11
1.1.81 Injury Claimants' Committee ............................. 11
1.1.82 Inter-Market Note Secured Claim ......................... 11
1.1.83 Internal Revenue Code ................................... 11
1.1.84 IRS ..................................................... 12
1.1.85 Kalkaska Claim .......................................... 12
1.1.86 Lead Personal Injury Claim .............................. 12
1.1.87 Leesburg Note ........................................... 12
1.1.88 Leesburg Secured Claim .................................. 12
1.1.89 Mansfield IRBs .......................................... 12
1.1.90 MARCO ................................................... 12
1.1.91 New Debt Securities ..................................... 12
1.1.92 New Eagle-Picher Common Stock ........................... 12
1.1.93 Northwestern Group ...................................... 12
1.1.94 Northwestern Group Secured Claims ....................... 13
1.1.95 Other Product Liability Tort Claim ...................... 13
1.1.96 Other Secured Claim ..................................... 13
1.1.97 Penalty Claim ........................................... 13
1.1.99 Petition Date ........................................... 13
1.1.100 PI Protected Party ..................................... 13
1.1.101 PI Trust ............................................... 14
1.1.102 PI Trust Share ......................................... 14
1.1.103 Plan ................................................... 14
1.1.104 Priority Claim ......................................... 14
1.1.105 Pro Rata Share ......................................... 14
1.1.106 Product Liability Tort Claim ........................... 14
1.1.107 Record Date ............................................ 15
1.1.108 Registered Unsecured Debt Securities ................... 15
1.1.109 Related Parties ........................................ 15
1.1.110 Reorganized Debtors .................................... 15
1.1.111 Reorganized Eagle-Picher ............................... 15
1.1.112 Retention Period ....................................... 15
1.1.113 Schedules .............................................. 15
1.1.114 Senior Unsecured Sinking Fund Debentures................ 15
1.1.115 Secured Claim .......................................... 15
1.1.117 Supplemental Severance Program ......................... 16
1.1.118 Tax Claim .............................................. 16
1.1.119 Tax Refund Notes ....................................... 16
1.1.121 Trustees ............................................... 16
1.1.122 Unliquidated Claim ..................................... 16
1.1.123 Unsecured Claim ........................................ 16
1.1.124 Unsecured Creditors' Committee ......................... 16
1.1.125 Unsecured Debt Securities .............................. 16
1.1.126 Unsecured Debt Securities Indenture .................... 16
1.1.127 Unsecured Debt Securities Trustee ...................... 16
1.1.128 Vale EDBs .............................................. 16
1.1.129 Vale EDBs Claims ....................................... 17
1.1.130 Voting Procedures Order ................................ 17
1.2 Other Terms..................................................... 17
1.3 Exhibits........................................................ 17
ARTICLE 2
PROVISIONS FOR PAYMENT OF ADMINISTRATIVE EXPENSES AND TAX CLAIMS ......... 18
2.1 Payment of Allowed Administrative Expenses ..................... 18
2.2 Compensation and Reimbursement ................................. 18
2.3 DIP Credit Facility Claim ...................................... 18
2.4 Tax Claims ..................................................... 18
ARTICLE 3
CLASSIFICATION AND TREATMENT OF CLAIMS AND EQUITY INTERESTS .............. 19
3.1 Summary ........................................................ 19
3.2 Classification and Treatment ................................... 20
3.3 Compromise and Settlement Relating to the Amount of the PI Trust
Share........................................................... 32
3.4 Controversy Concerning Impairment............................... 33
ARTICLE 4
MODIFICATION, REVOCATION, OR WITHDRAWAL OF THE PLAN ...................... 34
4.1 Modification of the Plan ....................................... 34
4.2 Revocation or Withdrawal ....................................... 34
4.2.1 Right to Revoke ......................................... 34
4.2.2 Effect of Withdrawal or Revocation ...................... 34
4.3 Amendment of Plan Documents .................................... 34
ARTICLE 5
PROVISIONS FOR TREATMENT OF DISPUTED CLAIMS .............................. 35
5.1 Objections to Claims; Prosecution of Disputed Claims 35
5.2 Amendment of Claims Settlement Guidelines ...................... 35
5.3 Distributions on Account of Disputed Claims .................... 35
ARTICLE 6
ACCEPTANCE OR REJECTION OF THE PLAN ...................................... 36
6.1 Impaired Classes to Vote ....................................... 36
6.2 Acceptance by Class of Claims .................................. 36
6.3 Nonconsensual Confirmation ..................................... 36
ARTICLE 7
IMPLEMENTATION OF THE PLAN ............................................... 37
7.1 Amendment of Articles of Incorporation ......................... 37
7.2 Amendment of Code of Regulations ............................... 37
7.3 Distributions under the Plan ................................... 37
7.4 Timing of Distributions under the Plan ......................... 37
7.5 Manner of Payment under the Plan ............................... 37
7.6 Hart-Scott-Rodino Compliance ................................... 38
7.7 Fractional Shares or Other Distributions ....................... 38
7.8 Occurrence of the Confirmation Date ............................ 38
7.9 Occurrence of the Effective Date ............................... 40
7.10 Distribution of Unclaimed Property ............................ 41
7.11 Management of the Reorganized Debtors ......................... 41
7.12 Supplemental Severance Program ................................ 41
7.13 Corporate Action .............................................. 41
7.14 Effectuating Documents and Further Transactions ............... 42
7.15 Dissolution of EDI, Inc. ...................................... 42
7.16 Allocation of Plan Distributions Between Principal and Interest 42
7.17 District Court Approval of the Confirmation Order.............. 42
ARTICLE 8
EXECUTORY CONTRACTS AND UNEXPIRED LEASES ................................. 43
8.1 Assumption of Executory Contracts and Unexpired Leases ......... 43
8.2 Rejection of Executory Contracts and Unexpired Leases .......... 43
8.3 Claims Arising from Rejection or Termination ................... 43
8.4 Previously Scheduled Contracts ................................. 44
8.5 Insurance Policies ............................................. 44
8.5.1 Assumed Insurance Policies ............................... 44
8.5.2 Rejected Insurance Agreements ............................ 44
8.5.3 Reservation of Rights .................................... 44
8.6 Indemnification and Reimbursement Obligations .................. 44
8.7 Compensation and Benefit Programs .............................. 45
ARTICLE 9
RETENTION OF JURISDICTION ................................................ 46
ARTICLE 10
TRANSFERS OF PROPERTY TO AND ASSUMPTION OF CERTAIN LIABILITIES BY
THE PI TRUST ............................................................. 48
10.1 Transfer of Certain Property to the PI Trust .................. 48
10.1.1 Transfer of Books and Records .......................... 48
10.1.2 Transfer of Certain Insurance Rights ................... 48
10.1.3 Transfer of Plan Consideration ......................... 48
10.2 Assumption of Certain Liabilities by the PI Trust.............. 49
10.3 Certain Property Held in Trust by the Reorganized Debtors ..... 49
10.4 Authority of the Debtors ...................................... 49
ARTICLE 11
TRANSFERS OF PROPERTY TO AND ASSUMPTION OF CERTAIN LIABILITIES BY
THE ASBESTOS PD TRUST .................................................... 50
11.1 Transfer of Certain Property to the Asbestos PD Trust ......... 50
11.2 Assumption of Certain Liabilities by the Asbestos PD Trust..... 50
11.3 Certain Property Held in Trust by the Reorganized Debtors...... 50
11.4 Authority of the Debtors ...................................... 51
ARTICLE 12
MISCELLANEOUS PROVISIONS ................................................. 52
12.1 Payment of Statutory Fees ..................................... 52
12.2 Discharge of the Debtors ...................................... 52
12.3 Rights of Action .............................................. 52
12.4 Third Party Agreements ........................................ 52
12.5 Dissolution of Committees ..................................... 52
12.6 Exculpation ................................................... 53
12.7 Title to Assets; Discharge of Liabilities ..................... 53
12.8 Surrender and Cancellation of Instruments ..................... 53
12.9 Notices ....................................................... 53
12.10 Headings ..................................................... 55
12.11 Severability ................................................. 55
12.12 Governing Law ................................................ 55
12.13 Filing of Additional Documents ............................... 55
12.14 Compliance with Tax Requirements ............................. 55
12.15 Exemption from Transfer Taxes ................................ 56
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
In re ) Consolidated Case No. 1-91-00100
)
)
EAGLE-PICHER INDUSTRIES, ) Chapter 11
INC., et al., )
) JUDGE PERLMAN
)
Debtors. )
)
- ---------------------------------- )
THIRD AMENDED CONSOLIDATED PLAN OF REORGANIZATION
The Debtors, Future Claimants' Representative, and Injury Claimants'
Committee (collectively, the "Plan Proponents") hereby collectively propose the
following third amended consolidated plan of reorganization:
ARTICLE 1
DEFINITIONS
1.1 DEFINED TERMS. As used herein, the following terms shall have
the respective meanings specified below, unless the context otherwise requires:
1.1.1 Administrative Expense: Any Claim constituting a cost or
expense of administration in the Chapter 11 Cases under section 503 of the
Bankruptcy Code, including, without express or implied limitation, any actual
and necessary costs and expenses of preserving the estate of the Debtors, any
actual and necessary costs and expenses of operating the businesses of the
Debtors, any indebtedness or obligations incurred or assumed by any of the
Debtors in Possession in connection with the conduct of its or their business or
for the acquisition or lease of property or the rendition of services, any
allowed compensation or reimbursement of expenses under section 503(b)(2)-(5) of
the Bankruptcy Code, and any fees or charges assessed against the estate of any
of the Debtors under section 1930, chapter 123, title 28, United States Code.
1.1.2 Administrative Expense Creditor: Any Creditor entitled
to payment of an Administrative Expense.
1.1.3 Affiliate: Any Entity that is an "affiliate" of any of
the Debtors within the meaning of section 101(2) of the Bankruptcy Code except
(i) American Imaging Services, Inc., (ii) Tri Sigma Corporation, and (iii) the
PI Trust.
1.1.4 Affiliate Claims and Interests: All Claims against any
of the Debtors held by an Affiliate or any interest in any of the Debtors other
than in Eagle-Picher.
1.1.5 Agent Bank: NBD Bank, N.A., as agent under the DIP
Credit Facility.
1.1.6 Allowed:
1.1.6.1 With respect to any Claim other than an
Administrative Expense, Asbestos Property Damage Claim, or Product
Liability Tort Claim, proof of which was filed within the applicable
period of limitation fixed in accordance with Bankruptcy Rule 3003(c)(3)
by the Bankruptcy Court, (i) as to which no objection to the allowance
thereof has been interposed within the applicable period of limitation
fixed by the Plan, the Bankruptcy Code, the Bankruptcy Rules, or a Final
Order of the Bankruptcy Court, such Claim to the extent asserted in the
proof of such Claim, or (ii) as to which an objection has been interposed,
such Claim to the extent that it has been allowed in whole or in part by a
Final Order of the Bankruptcy Court.
1.1.6.2 With respect to any Claim other than an
Administrative Expense or Product Liability Tort Claim, as to which no
proof of claim was filed within the applicable period of limitation fixed
by the Plan, the Bankruptcy Code, the Bankruptcy Rules, or a Final Order
of the Bankruptcy Court, such Claim to the extent that it has been listed
by one of the Debtors in its Schedules as liquidated in amount and not
disputed or contingent.
1.1.6.3 With respect to any Claim that is asserted to
constitute an Administrative Expense (i) that represents an actual or
necessary expense of preserving the estate or operating the business of
the Debtors, any such Claim to the extent that the Debtors determine it to
constitute an Administrative Expense, (ii) other than with respect to a
Claim of a professional person employed under section 327 or 1103 of the
Bankruptcy Code that is required to apply to the Bankruptcy Court for the
allowance of compensation and reimbursement of expenses pursuant to
section 330 of the Bankruptcy Code, that the Debtors do not believe
constitutes an Administrative Expense, any such Claim to the extent it is
allowed in whole or in part by a Final Order of the Bankruptcy Court and
only to the extent that such allowed portion is deemed, pursuant to a
Final Order of the Bankruptcy Court, to constitute a cost or expense of
administration under sections 503(b) and 507(a)(1) of the Bankruptcy Code,
or (iii) that represents a Claim of a professional person employed under
section 327 or 1103 of the Bankruptcy Code that is required to apply to
the Bankruptcy Court for the allowance of compensation and reimbursement
of expenses pursuant to section 330 of the Bankruptcy Code, such Claim to
the extent it is allowed by a Final Order of the Bankruptcy Court under
section 330 of the Bankruptcy Code.
1.1.6.4 With respect to any Asbestos Personal Injury
Claim or Lead Personal Injury Claim, such Claim to the extent that it is
allowed in accordance with the procedures established pursuant to the
Asbestos and Lead PI Trust Agreement and the claims resolution procedures
implemented in accordance therewith.
1.1.6.5 With respect to any Asbestos Property Damage
Claim, proof of which was filed within the applicable period of limitation
fixed in accordance with Bankruptcy Rule 3003(c)(3) by the Bankruptcy
Court, such Claim to the extent that it is allowed in accordance with the
claims resolution procedures established for Class 16 of the Plan and such
other procedures as may be established in connection with the Asbestos PD
Trust.
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1.1.6.6 With respect to any Other Product Liability Tort
Claim, such Claim to the extent (i) it is timely asserted against the
Debtors or the Reorganized Debtors, as the case may be, and (ii) it is
litigated to judgment in a liquidated amount by a Final Order of a court
of competent jurisdiction or is liquidated by the agreement of the
respective Reorganized Debtor and the holder of such Other Product
Liability Tort Claim.
1.1.7 Allowed Amount: The lesser of (a) the dollar amount of
an Allowed Claim or (b) the Estimated Amount of such Claim. Unless otherwise
specified herein or by Final Order of the Bankruptcy Court, the Allowed Amount
of an Allowed Claim shall not include interest accruing on such Allowed Claim
from and after the Petition Date.
1.1.8 Amended and Restated Articles of Incorporation: The
Articles of Incorporation, to be amended and restated in accordance with section
7.1 hereof, in substantially the form of Exhibit "1.1.8" to the Plan.
1.1.9 Amended and Restated Code of Regulations: The Code of
Regulations of Eagle-Picher, to be amended and restated in accordance with
section hereof, in substantially the form of Exhibit "1.1.9" to the Plan.
1.1.10 Amplicon Lease Secured Claim: All Claims under or
relating to that certain (a) Lease Agreement, dated February 2, 1990, between
Transicoil Inc. and Amplicon, Inc. and Schedule No. 1 thereto and (b) Lease
Guaranty, dated February 2, 1990, by Eagle-Picher, as guarantor, to the extent
that such Claims constitute Secured Claims under that certain Stipulation and
Order for Adequate Protection, which was "so ordered" by the Bankruptcy Court on
or about October 21, 1992.
1.1.11 Articles of Incorporation: The Articles of
Incorporation of Eagle-Picher, as such Articles of Incorporation may be amended
by the Amended and Restated Articles of Incorporation or otherwise.
1.1.12 Asbestos and Lead PI Permanent Channeling Injunction:
An order or orders of the Bankruptcy Court or the District Court permanently and
forever staying, restraining, and enjoining any Entity from taking any of the
following actions for the purpose of, directly or indirectly, collecting,
recovering, or receiving payment of, on, or with respect to any Asbestos
Personal Injury Claims or Lead Personal Injury Claims (other than actions
brought to enforce any right or obligation under the Plan, any Exhibits to the
Plan, or any other agreement or instrument between any of the Debtors or the
Reorganized Debtors and the PI Trust, which actions shall be in conformity and
compliance with the provisions hereof):
a. commencing, conducting, or continuing in any manner,
directly or indirectly, any suit, action, or other proceeding
(including, without express or implied limitation, a judicial,
arbitral, administrative, or other proceeding) in any forum against
or affecting any PI Protected Party or any property or interests in
property of any PI Protected Party;
b. enforcing, levying, attaching (including, without
express or implied limitation, any prejudgment attachment),
collecting, or otherwise recovering by any means or in any manner,
whether directly or indirectly, any judgment, award, decree, or
other order against any PI Protected Party or any property or
interests in property of any PI Protected Party;
A-3
c. creating, perfecting, or otherwise enforcing in any
manner, directly or indirectly, any Encumbrance against any PI
Protected Party or any property or interests in property of any PI
Protected Party;
d. setting off, seeking reimbursement of, contribution
from, or subrogation against, or otherwise recouping in any manner,
directly or indirectly, any amount against any liability owed to any
PI Protected Party or any property or interests in property of any
PI Protected Party; and
e. proceeding in any manner in any place with regard to
any matter that is subject to resolution pursuant to the PI Trust,
except in conformity and compliance therewith.
1.1.13 Asbestos and Lead PI Trust Agreement: That certain
Eagle-Picher Industries, Inc. Personal Injury Settlement Trust Agreement,
substantially in the form of Exhibit "1.1.13" to the Plan.
1.1.14 Asbestos or Lead Contribution Claim: Any right to
payment, claim, remedy, liability, or Demand now existing or hereafter arising,
whether or not such right, claim, remedy, liability, or Demand is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured, or unsecured, whether or not
the facts of or legal bases for such right, claim, remedy, liability, or Demand
are known or unknown, that is (i) held by (A) any Entity (other than a director
or officer entitled to indemnification pursuant to section of the Plan) who has
been, is, or may be a defendant in an action seeking damages for death, bodily
injury, or other personal damages (whether physical, emotional, or otherwise) to
the extent caused or allegedly caused, directly or indirectly, by exposure to
(x) asbestos or asbestos-containing products or (y) products that contain lead
chemicals, or (B) any assignee or transferee of such Entity, and (ii) on account
of alleged liability of any of the Debtors for reimbursement or contribution of
any portion of any damages such Entity has paid or may pay to the plaintiff in
such action.
1.1.15 Asbestos PD Trust: The trust established in accordance
with the Asbestos PD Trust Agreement.
1.1.16 Asbestos PD Trust Agreement: That certain Eagle-Picher
Industries, Inc. Asbestos Property Damage Settlement Trust Agreement,
substantially in the form of Exhibit "1.1.16" to the Plan.
1.1.17 Asbestos PD Trust Funding Obligation: Either (a) if
Class 16 votes to accept the Plan, cash in the amount of Three Million and
00/100 Dollars ($3,000,000.00) or (b) if Class 16 votes to reject the Plan, the
Pro Rata Share with respect to the Asbestos PD Trust Share of the Distribution
Value, payable in an amount of the Senior Unsecured Sinking Fund Debentures
equal to such Pro Rata Share.
1.1.18 Asbestos PD Trust Share: Either (a) if Class 16 votes
to reject the Plan, a value to be established by the Bankruptcy Court as the
estimated aggregate value of Asbestos Property Damage Claims as of the Petition
Date or (b) if Class 16 votes to accept the Plan, $0.00.
1.1.19 Asbestos Personal Injury Claim: Any right to payment,
claim, remedy, liability, or Demand now existing or hereafter arising, whether
or not such right, claim, remedy, liability, or Demand is reduced to judgment,
liquidated, unliquidated, fixed, contingent,
A-4
matured, unmatured, disputed, undisputed, legal, equitable, secured, or
unsecured, whether or not the facts of or legal bases for such right, claim,
remedy, liability, or Demand are known or unknown, for, under any theory of law,
equity, admiralty, or otherwise, death, bodily injury, or other personal damages
(whether physical, emotional, or otherwise) to the extent caused or allegedly
caused, directly or indirectly, by exposure to asbestos or asbestos-containing
products that were manufactured, sold, supplied, produced, distributed,
released, or in any way marketed by any of the Debtors prior to the Petition
Date, including, without express or implied limitation, any right, claim,
remedy, liability, or Demand for compensatory damages (such as loss of
consortium, wrongful death, survivorship, proximate, consequential, general, and
special damages) and including punitive damages and any Asbestos or Lead
Contribution Claim.
1.1.20 Asbestos Property Damage Claim: Any Claim against any
of the Debtors, under any theory of law, equity, admiralty, or otherwise, for
damages arising from the presence in buildings or other structures of asbestos
or asbestos-containing products that was or were manufactured, sold, supplied,
produced, distributed, or in any way marketed by any of the Debtors prior to the
Petition Date, or for which any of the Debtors is otherwise liable due to the
acts or omissions of any of the Debtors, including, without express or implied
limitation, all such Claims for compensatory damages (such as proximate,
consequential, general, and special damages) and punitive damages, but excluding
Asbestos Property Damage Contribution Claims.
1.1.21 Asbestos Property Damage Contribution Claims: Any Claim
against any of the Debtors that is (i) held by (A) any Entity (other than a
director or officer entitled to indemnification pursuant to section of the Plan)
who has been, is, or may be a defendant in an action seeking damages arising
from the presence in buildings or other structures of asbestos or
asbestos-containing products that was or were manufactured, sold, supplied,
produced, distributed, or in any way marketed by any of the Debtors prior to the
Petition Date, or for which any of the Debtors is otherwise liable due to the
acts or omissions of any of the Debtors or (B) any assignee or transferee of
such Entity, and (ii) on account of alleged liability by any of the Debtors for
reimbursement or contribution of any portion of any damages such Entity has paid
or may pay to the plaintiff in such action.
1.1.22 Available Cash: All cash (other than restricted cash,
including, without express or implied limitation, any cash held in escrow by or
on behalf of the Debtors and cash held in the "Divestiture Account" maintained
at Star Bank, N.A., Cincinnati) that would be shown on a balance sheet of
Eagle-Picher and its consolidated subsidiaries as of the last day of the month
in which the Effective Date occurs, prepared in accordance with generally
accepted accounting principles, less the sum of the following as of such date:
(i) Fifteen Million and 00/100 Dollars ($15,000,000.00), (ii) the Allowed Amount
of Allowed Administrative Expenses, (iii) a reasonable estimate by the Debtors
of additional Administrative Expenses (such as professional fees and expenses)
that may become Allowed thereafter, (iv) the Allowed Amount of Allowed Tax
Claims, (v) a reasonable estimate by the Debtors of additional Tax Claims that
may become Allowed thereafter, (vi) the DIP Credit Facility Claim, (vii) the
Amplicon Lease Secured Claim, (viii) the First Fidelity Lease Secured Claim,
(ix) the Fleet Credit Secured Claim, (x) the GE Capital Secured Claim, (xi) the
Grove IRB Secured Claim, (xii) the IBM Credit Corporation Secured Claim, (xiii)
the Leesburg Secured Claim, (xiv) the Allowed Amount of Other Secured Claims,
(xv) a reasonable estimate by the Debtors of additional Other Secured Claims
that may become Allowed thereafter, (xvi) the Allowed Amount of Allowed
Convenience Claims, (xvii) a reasonable estimate by the Debtors of additional
Convenience Claims that may become Allowed thereafter, (xviii) if Class 16 votes
to accept the Plan, the Asbestos PD Trust Funding Obligation, and (xix) the
amount reasonably estimated by the Debtors to be the cost of curing any defaults
under the executory contracts and unexpired leases to be assumed by the Debtors
under the Plan.
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1.1.23 Ballot: The form or forms distributed to holders of
impaired Claims on which is to be indicated the acceptance or rejection of the
Plan.
1.1.24 Ballot Date: The date set by the Bankruptcy Court by
which all completed ballots must be received.
1.1.25 Bankruptcy Code: The Bankruptcy Reform Act of 1978, as
amended, and as codified in title 11 of the United States Code, as applicable to
the Chapter 11 Cases.
1.1.26 Bankruptcy Court: The United States District Court for
the Southern District of Ohio, Western Division, having jurisdiction over the
Chapter 11 Cases and, to the extent of any reference made pursuant to section
157 of title 28 of the United States Code, the unit of such District Court
constituted pursuant to section 151 of title 28 of the United States Code.
1.1.27 Bankruptcy Rules: The Federal Rules of Bankruptcy
Procedure, as amended, as applicable to the Chapter 11 Cases, including the
Local Rules of the Bankruptcy Court.
1.1.28 Bearer Unsecured Debt Securities: Such of the Henry
County IRBs, Houston IRBs, and the Mansfield IRBs that are not registered in the
name of the holder (whether fully registered or as to principal only), including
such of the Henry County IRBs, Houston IRBs, and the Mansfield IRBs as are
registered to "bearer."
1.1.29 Board of Directors: The Board of Directors of
Eagle-Picher, as it may exist from time to time.
1.1.30 Business Day: Any day on which commercial banks are
required to be open for business in Cincinnati, Ohio.
1.1.31 Chapter 11 Cases: The cases of the Debtors commenced by
the filing by each of the Debtors of a voluntary petition for relief under
chapter 11 of the Bankruptcy Code on the Petition Date and procedurally
consolidated as Case No. 1-91-00100.
1.1.32 Claim: (a) A "claim," as defined in section 101(5) of
the Bankruptcy Code, against any of the Debtors or Debtors in Possession,
whether or not asserted, whether or not the facts of or legal bases therefor are
known or unknown, and specifically including, without express or implied
limitation, any rights under sections 502(g), 502(h), or 502(i) of the
Bankruptcy Code, any claim of a derivative nature, any potential or unmatured
contract claims, and any other Contingent Claim, and (b) any Environmental Claim
or Product Liability Tort Claim, whether or not it constitutes a "claim," as
defined in section 101(5) of the Bankruptcy Code.
1.1.33 Claims Settlement Guidelines: The settlement guidelines
and authority contained in that certain Order Authorizing Debtors to Compromise
or Settle Claims and Controversies, entered by the Clerk of the Bankruptcy Court
on December 1, 1991, as amended in accordance with section of the Plan.
1.1.34 Claims Trading Injunction: An order or orders of the
Bankruptcy Court or the District Court permanently and forever staying,
restraining, and enjoining any Entity from, directly or indirectly, purchasing,
selling, transferring, assigning, conveying, pledging, or otherwise acquiring or
disposing of any Asbestos Personal Injury Claim, Lead Personal Injury Claim, or
Asbestos Property Damage Claim; provided, however, that the foregoing shall not
apply to (i) the transfer of an Asbestos Personal Injury Claim, Lead Personal
Injury Claim, or Asbestos Property
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Damage Claim to the holder of an Asbestos or Lead Contribution Claim or Asbestos
Property Damage Contribution Claim, as the case may be, solely as a result of
such holder's satisfaction of such Asbestos Personal Injury Claim, Lead Personal
Injury Claim, or Asbestos Property Damage Contribution Claim, as the case may
be, or (ii) the transfer of an Asbestos Personal Injury Claim, Lead Personal
Injury Claim, or Asbestos Property Damage Claim by will or under the laws of
descent and distribution. Any such order or orders will also provide that any
action taken in violation thereof will be void ab initio.
1.1.35 Confirmation Date: The date on which the Confirmation
Order is entered by the Clerk of the Bankruptcy Court.
1.1.36 Confirmation Deadline: The date that is one hundred
fifty (150) days after the filing of the Plan with the Bankruptcy Court.
1.1.37 Confirmation Order: The order or orders of the
Bankruptcy Court confirming the Plan in accordance with the provisions of
chapter 11 of the Bankruptcy Code, which will contain, inter alia, the Asbestos
and Lead PI Permanent Channeling Injunction and the Claims Trading Injunction.
1.1.38 Connecticut Mutual Note Secured Claim: All Claims under
that certain (a) Note in the original principal amount of Six Million One
Hundred Fourteen Thousand Six Hundred Fifty-Nine and 00/100 Dollars
($6,114,659.00) issued by Hillsdale to Connecticut Mutual Life Insurance Company
on or about July 29, 1988, (b) Agreement, dated July 29, 1988, between Hillsdale
and Connecticut Mutual Life Insurance Company, and (c) Security Agreement, dated
July 29, 1988, between Hillsdale, as grantor, and Connecticut Mutual Life
Insurance Company, as lender and secured party, to the extent that such Claims
constitute "Secured Claims" under that certain Stipulation and Order for
Adequate Protection, which was "so ordered" by the Bankruptcy Court on November
25, 1991.
1.1.39 Contingent Claim: Any Claim, the liability for which
attaches or is dependent upon the occurrence or happening, or is triggered by,
an event, which event has not yet occurred, happened, or been triggered, as of
the date on which such Claim is sought to be estimated or an objection to such
Claim is filed, whether or not such event is within the actual or presumed
contemplation of the holder of such Claim and whether or not a relationship
between the holder of such Claim and any of the Debtors now or hereafter exists
or previously existed.
1.1.40 Convenience Claim: As to each holder of an Unsecured
Claim, (a) an Unsecured Claim held by such holder in an Allowed Amount of Five
Hundred and 00/100 Dollars ($500.00) or less, or (b) an Unsecured Claim of such
holder the Allowed Amount of which has been reduced to Five Hundred and 00/100
Dollars ($500.00) by the election of the holder thereof, as provided on the
Ballot.
1.1.41 Creditor: Any Entity that holds a Claim against any of
the Debtors or Debtors in Possession.
1.1.42 Debtors: Collectively, Eagle-Picher, Daisy Parts, Inc.,
Transicoil Inc., MARCO, EDI, Inc., Eagle-Picher Minerals, Inc., and Hillsdale.
1.1.43 Debtors in Possession: The Debtors, each in its
respective capacity as a debtor in possession pursuant to sections 1107(a) and
1108 of the Bankruptcy Code.
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1.1.44 Demand: A demand for payment, present or future, that
(i) was not a Claim during the Chapter 11 Cases; (ii) arises out of the same or
similar conduct or events that gave rise to the Claims addressed by the Asbestos
and Lead PI Permanent Channeling Injunction; and (iii) pursuant to the Plan, is
to be paid by the PI Trust.
1.1.45 Designated Real Property Tax Claim: Any Claim for taxes
assessed against Parcel No. 27-B-040-0-00-001-0 in Lake County, Ohio.
1.1.46 DIP Credit Facility: The postpetition credit facility
furnished to the Debtors in Possession by the DIP Lenders, the specific terms of
which are set forth in that certain Credit and Agency Agreement, dated May 29,
1991, as extended by that certain First Amendment to Credit Agreement, dated as
of February 26, 1992, and as amended and restated by that certain Credit and
Agency Agreement, dated November 5, 1992, as amended by that certain First
Amendment to Credit Agreement, dated as of August 29, 1994.
1.1.47 DIP Credit Facility Claim: Collectively, all Claims of
the DIP Lenders arising under the DIP Credit Facility.
1.1.48 DIP Lenders: NBD Bank, N.A., for itself and as agent,
and Star Bank, N.A., Cincinnati, PNC Bank, Ohio, N.A., f/k/a The Central Trust
Company, N.A., and The Bank of Nova Scotia.
1.1.49 Disallowed Claim: A Claim that is disallowed in its
entirety by a Final Order of the Bankruptcy Court or such other court of
competent jurisdiction.
1.1.50 Disputed Claim: A Claim that is neither an Allowed
Claim nor a Disallowed Claim; provided, however, that no Environmental Claim
shall be considered a Disputed Claim for the purposes of the Plan.
1.1.51 Disputed Claim Amount: The Estimated Amount of a
Disputed Claim, or, if no Estimated Amount exists, the amount set forth in the
proof of claim relating to such Disputed Claim as the liquidated amount of such
Disputed Claim.
1.1.52 Distribution: The payment or distribution under the
Plan of property or interests in property to the holders of Allowed Claims
(other than Asbestos Personal Injury Claims, Lead Personal Injury Claims, and
Asbestos Property Damage Claims) and to the PI Trust and the Asbestos PD Trust.
1.1.53 Distribution Amount: The amount of Distribution Value
payable to a holder of an Allowed Environmental Claim pursuant to section of the
Plan, an Allowed Unsecured Claim in accordance with section , or a Specified
Treatment Claim in accordance with section of the Plan on the Initial
Distribution Date or the Final Distribution Date, as the case may be.
1.1.54 Distribution Value: The sum of the Equity Value plus
Available Cash plus the aggregate face amount of the New Debt Securities.
1.1.55 District Court: The United States District Court for
the Southern District of Ohio, Western Division, having jurisdiction over the
Chapter 11 Cases.
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1.1.56 Divestiture Notes: Those certain Senior Unsecured Notes
in the aggregate principal amount of Fifty Million and 00/100 Dollars
($50,000,000.00), bearing interest at a rate determined by McDonald & Company
Securities, Inc., after consultation with the financial advisers to the
Unsecured Creditors' Committee, on the Effective Date as the rate such Senior
Unsecured Notes should bear in order to have a market value of one hundred
percent (100%) of their principal amount on the Effective Date, and
substantially in the form of Exhibit "1.1.56" to the Plan.
1.1.57 Eagle-Picher: Eagle-Picher Industries, Inc., an Ohio
corporation.
1.1.58 Effective Date: The first Business Day after the date
on which all of the conditions precedent to the effectiveness of the Plan
specified in Section have been satisfied or waived or, if a stay of the
Confirmation Order is in effect on such date, the first Business Day after the
expiration, dissolution, or lifting of such stay.
1.1.59 Encumbrance: With respect to any asset, any mortgage,
lien, pledge, charge, security interest, assignment, or encumbrance of any kind
or nature in respect of such asset (including, without express or implied
limitation, any conditional sale or other title retention agreement, any
security agreement, and the filing of, or agreement to give, any financing
statement under the Uniform Commercial Code or comparable law of any
jurisdiction).
1.1.60 Entity: An individual, corporation, partnership,
association, joint stock company, joint venture, estate, trust, unincorporated
organization, or government or any political subdivision thereof, or other
person or entity.
1.1.61 Environmental Claim: Any Claim as to which the
treatment thereof is set forth in (a) the Environmental Settlement Agreement or
(b) an agreement by and between any of the Debtors and any party asserting a
Claim against any of the Debtors relating to alleged contamination under the
federal or state environmental laws or regulations, pursuant to which agreement
all or a portion of such Claim (to the extent and subject to the limitations
imposed by such agreement) may be asserted by the holder thereof after the
Effective Date, to the extent that such agreement is approved and authorized by
a Final Order of the Bankruptcy Court or otherwise in accordance with the Claims
Settlement Guidelines.
1.1.62 Environmental Settlement Agreement: That certain
Settlement Agreement, lodged with the Bankruptcy Court on March 23, 1995, by and
between the Debtors and the parties listed on the signatory pages thereof, to
the extent that such Settlement Agreement is approved and authorized by the
Bankruptcy Court by a Final Order of the Bankruptcy Court.
1.1.63 Equity Interest: Any interest in Eagle-Picher
represented by shares of Existing Eagle-Picher Common Stock.
1.1.64 Equity Security Holders' Committee: The Official
Committee of Equity Security Holders consisting of Entities appointed as members
in the Chapter 11 Cases in accordance with section 1102(a) of the Bankruptcy
Code and their duly appointed successors, if any, as the same may be
reconstituted from time to time.
1.1.65 Equity Value: The residual value of the equity of
Reorganized Eagle-Picher (i.e., after excluding the amount of cash to be
distributed under the Plan and debt of the Reorganized Debtors), as determined
by McDonald & Company Securities, Inc., after consultation with the financial
advisers to the Unsecured Creditors' Committee, as of the date of the
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commencement of the hearing on confirmation of the Plan, or as otherwise
determined in a factual finding contained in the Confirmation Order.
1.1.66 Estimated Amount: The estimated dollar value of an
Unliquidated Claim, Disputed Claim, or Contingent Claim pursuant to section
502(c) of the Bankruptcy Code.
1.1.67 Existing Eagle-Picher Common Stock: Voting common stock
of Eagle-Picher, with a par value of $1.25 for each share, authorized pursuant
to the Articles of Incorporation as in effect immediately prior to the Effective
Date.
1.1.68 Final Distribution Date: A date on or after the Initial
Distribution Date and after all Disputed Claims (other than Asbestos Personal
Injury Claims, Lead Personal Injury Claims, and Asbestos Property Damage Claims)
have become either Allowed Claims or Disallowed Claims that is selected by
Reorganized Eagle-Picher in its discretion but, in any event, is no later than
thirty (30) days thereafter, or such later date as the Bankruptcy Court may
establish, upon request by Reorganized Eagle-Picher, for cause shown.
1.1.69 Final Order: An order as to which the time to appeal,
petition for certiorari, or move for reargument or rehearing has expired and as
to which no appeal, petition for certiorari, or other proceedings for reargument
or rehearing shall then be pending or as to which any right to appeal, petition
for certiorari, reargue, or rehear shall have been waived in writing in form and
substance satisfactory to the Debtors or the Reorganized Debtors, as the case
may be, and their counsel or, in the event that an appeal, writ of certiorari,
or reargument or rehearing thereof has been sought, such order shall have been
affirmed by the highest court to which such order was appealed, or certiorari
has been denied or from which reargument or rehearing was sought, and the time
to take any further appeal, petition for certiorari or move for reargument or
rehearing shall have expired.
1.1.70 First Fidelity Group: First Fidelity Leasing Group,
Inc.
1.1.71 First Fidelity Lease Secured Claim: All Claims under
that certain Master Lease Finance Agreement, dated October 31, 1990, between
Eagle-Picher and First Fidelity Group, to the extent that such Claims
constituted Secured Claims as of November 1, 1991, less the aggregate amount of
payments made by Eagle-Picher to First Fidelity Group pursuant to that certain
Stipulation and Order Setting Motions of First Fidelity Group, which was "so
ordered" by the Bankruptcy Court and entered by the Bankruptcy Court on March
17, 1992.
1.1.72 Fleet Credit Secured Claim: All Claims under certain
equipment schedules, dated January 25, 1988, March 24, 1988, May 19, 1988, and
May 24, 1988, respectively, between MARCO and Fleet Credit Corporation, to the
extent that such Claims constitute Secured Claims under that certain Stipulation
and Order Settling Motions of Fleet Credit Corporation, which was "so ordered"
by the Bankruptcy Court on July 20, 1992.
1.1.73 Future Claimants' Representative: The Legal
Representative for Future Claimants appointed pursuant to the order of the
Bankruptcy Court dated October 31, 1991.
1.1.74 GE Capital Secured Claim: The Secured Claim of General
Electric Capital Corporation in the amount of Twenty-Two Thousand Four Hundred
Fifty-Four and 89/100 Dollars ($22,454.89), pursuant to that certain Stipulation
and Order of Dismissal between Eagle-Picher and General Electric Capital
Corporation, which was "so ordered" by the Bankruptcy Court on January 18, 1994.
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1.1.75 Grove IRB Secured Claim: Claims under that certain (a)
Note, dated August 9, 1989, from Eagle-Picher to the Grove Industrial
Development Authority of Grove, Oklahoma, in the original principal amount of
$450,000.00 and (b) Mortgage, filed on August 9, 1989, in the State of Oklahoma,
Delaware County, to the extent that such Claims constitute Secured Claims.
1.1.76 Henry County IRBs: The Henry County Development
Authority Industrial Development Revenue Bonds (Eagle-Picher Industries, Inc.
Project), Series 1981, in the original principal amount of Two Million Five
Hundred Thousand and 00/100 Dollars ($2,500,000.00).
1.1.77 Hillsdale: Hillsdale Tool & Manufacturing Co., a
Michigan corporation.
1.1.78 Houston IRBs: The Port Development Corporation
Industrial Development Revenue Bonds, Series 1980 (Eagle-Picher Industries,
Inc., Project), in the original principal amount of Three Million and 00/100
Dollars ($3,000,000.00).
1.1.79 IBM Credit Corporation Secured Claim: All Claims of IBM
Credit Corporation under that certain Term Lease Master Agreement No. ZHOAO43
between The Ohio Rubber Co., a former division of Eagle-Picher, and IBM Credit
Corporation, dated May 16, 1989, and the related Term Lease Supplements thereto,
to the extent that such Claims constituted Secured Claims as of November 1,
1991, less the aggregate amount of payments made by Eagle-Picher to IBM Credit
Corporation pursuant to that certain Stipulation and Order Settling Motion of
IBM Credit Corporation, which was "so ordered" by the Bankruptcy Court on
January 15, 1992.
1.1.80 Initial Distribution Date: A date on or after the
Effective Date that is selected by Reorganized Eagle-Picher in its discretion
but, in any event, is within thirty (30) days after the Effective Date, or such
later date as the Bankruptcy Court may establish, upon request by Reorganized
Eagle-Picher, for cause shown.
1.1.81 Injury Claimants' Committee: The Official Committee of
Injury Claimants, consisting of Entities appointed as members in the Chapter 11
Cases in accordance with section 1102(a) of the Bankruptcy Code and their duly
appointed successors, if any, as the same may be reconstituted from time to
time.
1.1.82 Inter-Market Note Secured Claim: All Claims under that
certain (a) Note Agreement, dated July 7, 1988, between Inter-Market Capital
Corporation and Eagle-Picher, (b) 9.8820% Promissory Note issued by Eagle-Picher
to New England Mutual Life Insurance Company on or about July 7, 1988, and (c)
Security Agreement, dated September 14, 1989, between Hillsdale, as grantor and
guarantor, and New England Mutual Life Insurance Company, as lender and secured
party, to the extent that such Claims constitute "Secured Claims" under that
certain Stipulation and Order Providing Adequate Protection of Interests of New
England Mutual Life Insurance Company, which was "so ordered" by the Bankruptcy
Court on April 7, 1992, as modified and extended by that certain Stipulation
Providing Adequate Protection of Interests of Certain Affiliates of Morgens,
Waterfall, Vintiadis & Company, Inc., which was approved by the Bankruptcy Court
by an order entered on February 14, 1995.
1.1.83 Internal Revenue Code: The Internal Revenue Code of
1986, as amended, and any applicable rulings, regulations (including temporary
and proposed regulations)
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promulgated thereunder, judicial decisions, and notices, announcements, and
other releases of the United States Treasury Department or the IRS.
1.1.84 IRS: The United States Internal Revenue Service.
1.1.85 Kalkaska Claim: Allowed Unsecured Claim in the amount
of Two Million and 00/100 Dollars ($2,000,000.00) pursuant to a settlement
approved by an order of the Bankruptcy Court entered on or about November 24,
1993.
1.1.86 Lead Personal Injury Claim: Any right to payment,
claim, remedy, liability, or Demand, now existing or hereafter arising, whether
or not such right, claim, remedy, liability, or Demand is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured, or unsecured, whether or not the facts of
or legal bases for such right, claim, remedy, liability, or Demand are known or
unknown, for, under any theory of law, equity, admiralty, or otherwise, death,
bodily injury, or other personal damages (whether physical, emotional, or
otherwise) to the extent caused or allegedly caused, directly or indirectly, by
exposure to products that contained lead chemicals that were manufactured, sold,
supplied, produced, distributed, or in any way marketed by any of the Debtors
prior to the Petition Date, including, without express or implied limitation,
any right, claim, remedy, liability, or Demand for compensatory damages (such as
loss of consortium, wrongful death, survivorship, proximate, consequential,
general, and special damages) and including punitive damages and any Asbestos or
Lead Contribution Claim.
1.1.87 Leesburg Note: That certain note, dated as of October
4, 1977, from William Robert Jacobsen to Sun First National Bank of Leesburg, as
Trustee of the J.D. Manly Construction Company Living Trust.
1.1.88 Leesburg Secured Claim: All Claims under (a) the
Leesburg Note and (b) that certain mortgage, dated October 4, 1977, recorded at
O.R. 638, pages 1587 through 1591, inclusive, of the Public Records of Lake
County, Florida, as amended by a mortgage amendment, recorded at O.R. 691, page
55, of the Public Records of the Lake County, Florida, which note and mortgage
were assumed by Eagle-Picher pursuant to a certain Real Estate Agreement, dated
as of May 18, 1979, between Eagle-Picher and William R. Jacobsen.
1.1.89 Mansfield IRBs: The Industrial Development Revenue
Bonds (Eagle- Picher Industries, Inc. Project) issued by the City of Mansfield,
Ohio, in the original principal amount of Two Million and 00/100 Dollars
($2,000,000.00).
1.1.90 MARCO: Michigan Automotive Research Corporation, a
Michigan corporation.
1.1.91 New Debt Securities: Collectively, the Divestiture
Notes, the Senior Unsecured Sinking Fund Debentures, and the Tax Refund Notes.
1.1.92 New Eagle-Picher Common Stock: Voting common stock,
with no par value, of Reorganized Eagle-Picher from and after the Effective Date
after giving effect to the Amended and Restated Articles of Incorporation.
1.1.93 Northwestern Group: Northwestern National Life
Insurance Company, Northern Life Insurance Company, The North Atlantic Life
Insurance Company of America, and American Investors Life Insurance Company.
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1.1.94 Northwestern Group Secured Claims: All Claims under
that certain (a) Note Purchase Agreement, dated April 21, 1989, between
Eagle-Picher and the Northwestern Group and (b) Security Agreement, dated April
21, 1989, executed by Eagle-Picher in favor of the Northwestern Group, to the
extent that such Claims constituted Secured Claims as of March 12, 1991, less
the aggregate amount of payments made by Eagle-Picher to the Northwestern Group
or any successor in interest to the Northwestern Group pursuant to that certain
Stipulation and Order for Adequate Protection Payments to Northwestern Group,
which was entered by the Bankruptcy Court on May 9, 1991.
1.1.95 Other Product Liability Tort Claim: Any Product
Liability Tort Claim as to which the facts or existence of first become apparent
to the holder of such Claim after the Effective Date other than Asbestos
Personal Injury Claims and Lead Personal Injury Claims.
1.1.96 Other Secured Claim: Any Secured Claim other than the
Amplicon Lease Secured Claim, the Connecticut Mutual Note Secured Claim, the
Designated Real Property Tax Claim, the Grove IRB Secured Claim, the First
Fidelity Lease Secured Claim, the Fleet Credit Secured Claim, the IBM Credit
Corporation Secured Claim, the Inter-Market Note Secured Claim, the Leesburg
Secured Claim, the Northwestern Group Secured Claim, and the Vale EDBs.
1.1.97 Penalty Claim: Any Claim (i) for any fine, penalty,
collection fee, or forfeiture, or for multiple, exemplary, or punitive damages
to the extent that such fine, penalty, forfeiture, or damages are not
compensation for actual pecuniary loss suffered by the holder of such Claim, but
not any such Claim to the extent that any of the Debtors has agreed to treat
such Claim under the Plan as an Unsecured Claim, or (ii) that, pursuant to an
order of the Bankruptcy Court, is subordinated for purposes of distribution to
all Allowed Unsecured Claims.
1.1.98 Per Share Value: An amount equal to the Equity Value
divided by ten million (10,000,000).
1.1.99 Petition Date: January 7, 1991.
1.1.100 PI Protected Party: Any of the following parties:
1.1.100.1 the Debtors;
1.1.100.2 the Reorganized Debtors;
1.1.100.3 an Affiliate;
1.1.100.4 any Entity that, pursuant to the Plan or after
the Effective Date, becomes a direct or indirect transferee of, or
successor to, any assets of any of the Debtors, the Reorganized Debtors,
or the PI Trust (but only to the extent that liability is asserted to
exist by reason of it becoming such a transferee or successor);
1.1.100.5 any Entity that, pursuant to the Plan or after
the Effective Date, makes a loan to any of the Reorganized Debtors or the
PI Trust or to a successor to, or transferee of, any assets of any of the
Debtors, the Reorganized Debtors, or the PI Trust (but only to the extent
that liability is asserted to exist by reason of such Entity becoming such
a lender or to the extent any pledge of assets made in connection with
such a loan is sought to be upset or impaired); or
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1.1.100.6 any Entity to the extent he, she, or it
is alleged to be directly or indirectly liable for the conduct of,
Claims against, or Demands on any of the Debtors, the Reorganized
Debtors, or the PI Trust on account of Asbestos Personal Injury
Claims or Lead Personal Injury Claims by reason of one or more of
the following:
1.1.100.6.1 such Entity's ownership of a financial
interest in any of the Debtors or the Reorganized Debtors, a past or
present affiliate of any of the Debtors or the Reorganized Debtors,
or predecessor in interest of any of the Debtors or the Reorganized
Debtors;
1.1.100.6.2 such Entity's involvement in the
management of any of the Debtors or the Reorganized Debtors or any
predecessor in interest of any of the Debtors or the Reorganized
Debtors;
1.1.100.6.3 such Entity's service as an officer,
director, or employee of any of the Debtors, the Reorganized
Debtors, or Related Parties;
1.1.100.6.4 such Entity's provision of insurance
to any of the Debtors, the Reorganized Debtors, or Related Parties;
or
1.1.100.6.5 such Entity's involvement in a
transaction changing the corporate structure, or in a loan or other
financial transaction affecting the financial condition, of any of
the Debtors, the Reorganized Debtors, or any of the Related Parties.
1.1.101 PI Trust: The trust established in accordance with the
Asbestos and Lead PI Trust Agreement.
1.1.102 PI Trust Share: Two Billion and 00/100 Dollars
($2,000,000,000).
1.1.103 Plan: This plan of reorganization, either in its
present form or as it may be amended, supplemented, or otherwise modified from
time to time, and the exhibits and schedules to the foregoing, as the same may
be in effect at the time such reference becomes operative.
1.1.104 Priority Claim: Any Claim to the extent such claim is
entitled to priority in right of payment under section 507(a) of the Bankruptcy
Code, other than an Administrative Expense, DIP Credit Facility Claim, or Tax
Claim.
1.1.105 Pro Rata Share: Amount obtained by dividing the
Allowed Amount of an Allowed Claim, or, in the case of the Distribution to the
PI Trust or the Asbestos PD Trust, the PI Trust Share or the Asbestos PD Trust
Share, respectively, by the sum of (a) the PI Trust Share, the Asbestos PD Trust
Share, and all Allowed Unsecured Claims (other than Allowed Convenience Claims),
and Allowed Environmental Claims, and (b) the Disputed Claim Amount of all
Disputed Unsecured Claims (other than Disputed Convenience Claims).
1.1.106 Product Liability Tort Claim: Any right to payment,
claim, remedy, liability, or Demand, now existing or hereafter arising, whether
or not such right, claim, remedy, liability, or Demand is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured, or unsecured, whether or not the facts of
or legal bases for such right, claim, remedy, liability, or Demand are known or
unknown,
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for, under any theory of law, equity, admiralty, or otherwise, death, bodily
injury, or other personal damages (whether physical, emotional, or otherwise) to
the extent caused or allegedly caused, directly or indirectly, by exposure to
any products or byproducts that were manufactured, sold, supplied, produced,
released, distributed, or in any way marketed by any of the Debtors prior to the
Petition Date, including, without express or implied limitation, any right,
claim, remedy, liability, or Demand for compensatory damages (such as loss of
consortium, wrongful death, survivorship, proximate, consequential, general, and
special damages), including punitive damages, and including, without express or
implied limitation, any Asbestos Personal Injury Claim or Lead Personal Injury
Claim.
1.1.107 Record Date: The first Business Day that is five (5)
days from and after the Confirmation Date.
1.1.108 Registered Unsecured Debt Securities: (a) The 9.5%
Sinking Fund Debentures Due March 1, 2017, issued by Eagle-Picher, and (b) such
of the Henry County IRBs, Mansfield IRBs, and the Houston IRBs that are not
Bearer Unsecured Debt Securities.
1.1.109 Related Parties: (a) Any past or present affiliate of
any of the Debtors or the Reorganized Debtors, (b) any predecessor in interest
of any of the Debtors or the Reorganized Debtors, or (c) any Entity that owned a
financial interest in any of the Debtors or the Reorganized Debtors, any past or
present affiliate of any of the Debtors or the Reorganized Debtors, or any
predecessor in interest of any of the Debtors or the Reorganized Debtors.
1.1.110 Reorganized Debtors: The Debtors, or any successors in
interest thereto, from and after the Effective Date.
1.1.111 Reorganized Eagle-Picher: Eagle-Picher, or any
successor in interest thereto, from and after the Effective Date.
1.1.112 Retention Period: Five (5) years from and after the
Effective Date, or such shorter period as the Bankruptcy Court may set.
1.1.113 Schedules: The schedules of assets and liabilities and
the statements of financial affairs filed by the Debtors in Possession with the
Bankruptcy Court, as required by section 521 of the Bankruptcy Code and the
Official Bankruptcy Forms of the Bankruptcy Rules, as such schedules and
statements may be amended by the Debtors in Possession from time to time in
accordance with Bankruptcy Rule 1009.
1.1.114 Senior Unsecured Sinking Fund Debentures: Those
certain Senior Unsecured Sinking Fund Debentures in the aggregate principal
amount of Two Hundred Fifty Million and 00/100 Dollars ($250,000,000.00),
bearing interest at a rate determined by McDonald & Company Securities, Inc. on
the Effective Date as the rate such Senior Unsecured Sinking Fund Debentures
should bear in order to have a market value of one hundred percent (100%) of
their principal amount on the Effective Date, and substantially in the form set
forth in Exhibit "1.1.114" to the Plan.
1.1.115 Secured Claim: Any Claim against any of the Debtors to
the extent of the value of any interest in property of the estate of such Debtor
securing such Claim, except for the DIP Credit Facility Claim.
1.1.116 Specified Treatment Claims: The Kalkaska Claim, the
TLG Associates Claim, and any other Unsecured Claim that is (a) Allowed in
connection with a settlement
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with one or more of the Debtors and (b) for which a minimum and maximum
distribution under the Plan are specified.
1.1.117 Supplemental Severance Program: The Supplemental
Severance Program approved by the Bankruptcy Court pursuant to its "Order on
Motion Re Key Employee Retention, Etc.," entered on May 13, 1991.
1.1.118 Tax Claim: A Claim against any of the Debtors that is
of a kind specified in section 507(a)(8) of the Bankruptcy Code.
1.1.119 Tax Refund Notes: Those certain Senior Unsecured Notes
in an aggregate principal amount equal to the federal income tax refund
estimated by Eagle-Picher to be due and owing to the Debtors as of the Effective
Date, bearing interest at a rate determined by McDonald & Company Securities,
Inc. on the Effective Date as the rate such Senior Unsecured Notes should bear
in order to have a market value of one hundred percent (100%) of their principal
amount on the Effective Date, and in substantially the form of Exhibit "1.1.119"
to the Plan.
1.1.120 TLG Associates Claim: Allowed Unsecured Claim in the
amount of Two Hundred Fifteen Thousand Eight Hundred Thirty-Five and 00/100
($215,835.00) pursuant to a settlement approved by an order of the Bankruptcy
Court dated December 29, 1995.
1.1.121 Trustees: Collectively, the persons serving as
trustees of the PI Trust, pursuant to the terms of the Asbestos and Lead PI
Trust Agreement.
1.1.122 Unliquidated Claim: Any Claim, the amount of liability
for which has not been fixed, whether pursuant to agreement, applicable law, or
otherwise, as of the date on which such Claim is sought to be estimated.
1.1.123 Unsecured Claim: Any Claim that is not an
Administrative Expense, Tax Claim, Priority Claim, Asbestos Personal Injury
Claim, Asbestos Property Damage Claim, Lead Personal Injury Claim, Environmental
Claim, Other Product Liability Tort Claim, Designated Real Property Tax Claim,
Affiliate Claims and Interests, Penalty Claim, or Secured Claim.
1.1.124 Unsecured Creditors' Committee: The Official Unsecured
Creditors' Committee, consisting of Entities appointed as members in the Chapter
11 Cases in accordance with section 1102(a) of the Bankruptcy Code and their
duly appointed successors, if any, as the same may be reconstituted from time to
time.
1.1.125 Unsecured Debt Securities: Collectively, the Bearer
Unsecured Debt Securities and the Registered Unsecured Debt Securities.
1.1.126 Unsecured Debt Securities Indenture: The respective
indenture and any other agreements, documents, and instruments governing an
issue of Unsecured Debt Securities, as amended, supplemented, or modified as of
the date hereof.
1.1.127 Unsecured Debt Securities Trustee: The respective
trustee acting pursuant to an Unsecured Debt Securities Indenture.
1.1.128 Vale EDBs: Those certain Ten Million and 00/100
Dollars ($10,000,000.00) in original principal amount of Economic Development
Bonds, Series XCVI, issued
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by the State of Oregon Economic Development Commission to finance the
construction in the Harney and Malheur Counties of Oregon of certain facilities
of Eagle-Picher Minerals, Inc.
1.1.129 Vale EDBs Claims: Claims with respect to the Vale
EDBs.
1.1.130 Voting Procedures Order: An order of the Bankruptcy
Court approving procedures relating to the solicitation and tabulation of votes
with respect to the Plan.
1.2 OTHER TERMS. Wherever from the context it appears appropriate,
each term stated in either the singular or the plural shall include the singular
and the plural, and pronouns stated in the masculine, feminine, or neuter gender
shall include the masculine, the feminine, and the neuter. The words "herein,"
"hereof," "hereto," "hereunder," and others of similar import refer to the Plan
as a whole and not to any particular section, subsection, or clause contained in
the Plan. An initially capitalized term used herein that is not defined herein
shall have the meaning ascribed to such term, if any, in the Bankruptcy Code,
unless the context shall otherwise require.
1.3 EXHIBITS. All Exhibits to the Plan shall be contained in a
separate Exhibit Volume, which shall be filed with the Clerk of the Bankruptcy
Court not less than twenty (20) days prior to the commencement of the hearing on
confirmation of the Plan. Such Exhibits may be inspected in the office of the
Clerk of the Bankruptcy Court during normal hours of operation of the Bankruptcy
Court. Holders of Claims and Equity Interests may obtain a copy of such Exhibit
Volume, once filed, from Eagle-Picher by a written request sent to the following
address:
Eagle-Picher Industries, Inc.
P.O. Box 1847
Cincinnati, OH 45202
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ARTICLE 2
PROVISIONS FOR PAYMENT OF
ADMINISTRATIVE EXPENSES AND TAX CLAIMS
2.1 PAYMENT OF ALLOWED ADMINISTRATIVE EXPENSES. The Allowed Amount
of each Allowed Administrative Expense shall be paid in full, in cash, on the
Effective Date; provided, however, that (i) Administrative Expenses representing
(a) liabilities incurred in the ordinary course of business by any of the
Debtors in Possession or (b) liabilities arising under loans or advances to the
Debtors in Possession, whether or not incurred in the ordinary course of
business, shall be assumed and paid by the respective Reorganized Debtors in
accordance with the terms and conditions of the particular transactions and any
agreements relating thereto, (ii) the Bankruptcy Court shall fix in the
Confirmation Order a date for the filing of and a date to hear and determine all
applications for final allowances of compensation or reimbursement of expenses
under section 330 of the Bankruptcy Code, and (iii) if an Administrative
Expense, other than a trade payable incurred in the ordinary course of business
by any of the Debtors in Possession and other than a DIP Credit Facility Claim,
is a Contingent Claim or Unliquidated Claim as of the Effective Date, the
Debtors may request the Bankruptcy Court to estimate such Administrative Expense
pursuant to section 502(c) of the Bankruptcy Code, in which case the Allowed
Amount of such Administrative Expense shall be paid in full, in cash, on the
date that an order estimating such Administrative Expense becomes a Final Order.
2.2 COMPENSATION AND REIMBURSEMENT. The Allowed Amount of all
Administrative Expenses arising under section 503(b)(2), 503(b)(3), 503(b)(4),
or 503(b)(5) of the Bankruptcy Code shall be paid in full, in cash, (a) upon the
later of (i) the Effective Date and (ii) the date upon which the order with
respect to the allowance or disallowance of any such Administrative Expense
becomes a Final Order, or (b) upon such other terms as may be mutually agreed
upon between each Administrative Expense Creditor and the Reorganized Debtors.
2.3 DIP CREDIT FACILITY CLAIM. On the Effective Date, the DIP Credit
Facility Claim shall be paid, in full, in cash. Unless otherwise agreed by the
DIP Lenders, to the extent that any letters of credit issued pursuant to the DIP
Credit Facility remain outstanding on the Effective Date, the Debtors will pay
to the Agent Bank, for the ratable benefit of the DIP Lenders, cash in an amount
equal to the face amount of such letters of credit, which shall be held by the
Agent Bank for the repayment of all amounts due in respect of such letters of
credit.
2.4 TAX CLAIMS. Each holder of an Allowed Tax Claim shall be paid
the Allowed Amount of its Allowed Tax Claim, at the option of the Reorganized
Debtors, either (a) in full, in cash, on the Effective Date or (b) upon such
other terms as may be mutually agreed upon between each holder of a Tax Claim
and the Reorganized Debtors.
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ARTICLE 3
CLASSIFICATION AND TREATMENT OF CLAIMS
AND EQUITY INTERESTS
3.1 SUMMARY. Claims and Equity Interests are classified for all
purposes, including, without express or implied limitation, voting,
confirmation, and distribution pursuant to the Plan, as follows:
CLASS STATUS
Class 1: Priority Claims Unimpaired - not entitled to vote.
Class 2: Amplicon Lease Secured Unimpaired - not entitled to vote.
Claim
Class 3: Connecticut Mutual Note Impaired - entitled to vote
Secured Claim
Class 4: Designated Real Property Impaired - entitled to vote.
Tax Claims
Class 5: First Fidelity Lease Unimpaired - not entitled to vote.
Secured Claim
Class 6: Fleet Credit Secured Claim Unimpaired - not entitled to vote.
Class 7: GE Capital Secured Claim Unimpaired - not entitled to vote.
Class 8: Grove IRB Secured Claim Unimpaired - not entitled to vote.
Class 9: IBM Credit Corporation Unimpaired - not entitled to vote.
Secured Claim
Class 10: Inter-Market Note Impaired - entitled to vote.
Secured Claim
Class 11: Leesburg Secured Claim Unimpaired - not entitled to vote.
Class 12: Northwestern Group Secured Impaired - entitled to vote.
Claims
Class 13: Vale EDBs Claims Unimpaired - not entitled to vote.
Class 14: Other Secured Claims Unimpaired - not entitled to vote.
Class 15: Convenience Claims Unimpaired - not entitled to vote.
Class 16: Asbestos Property Damage Impaired - entitled to vote.
Claims
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CLASS STATUS
Class 17: Asbestos Personal Injury Impaired - entitled to vote.
Claims and Lead Personal
Injury Claims
Class 18: Other Product Liability Impaired - entitled to vote.
Tort Claims
Class 19: Environmental Claims Impaired - entitled to vote.
Class 20: Unsecured Claims Impaired - entitled to vote.
other than Convenience
Claims and Specified
Treatment Claims
Class 21: Specified Treatment Claims Impaired - entitled to vote.
Class 22: Affiliate Claims and Unimpaired - not entitled to vote.
Interests
Class 23: Penalty Claims Impaired - deemed to reject the Plan.
Class 24: Equity Interests Impaired - deemed to reject the Plan.
3.2 CLASSIFICATION AND TREATMENT.
3.2.1 CLASS 1. PRIORITY CLAIMS.
1. Classification: Class 1 consists of all Allowed
Priority Claims.
2. Treatment: Each holder of an Allowed Priority Claim
shall be paid the Allowed Amount of its Allowed Priority Claim, in full, in
cash, on the Effective Date.
3. Status: Class 1 is not impaired. The holders of the
Claims in Class 1 are deemed to accept the Plan and, accordingly, are not
entitled to vote to accept or reject the Plan.
3.2.2 CLASS 2. AMPLICON LEASE SECURED CLAIM.
1. Classification: Class 2 consists of the Amplicon
Lease Secured Claim.
2. Treatment: At the option of the Debtors and in
accordance with section 1124 of the Bankruptcy Code, the Amplicon Lease Secured
Claim shall be treated in one of the following ways:
a. The legal, equitable and contractual rights to
which the Amplicon Lease Secured Claim entitles the holder thereof
shall be unaltered.
or
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b. Notwithstanding any contractual provision or
applicable law that entitles the holder of the Amplicon Lease
Secured Claim to demand or receive payment of such Claim prior to
the stated maturity of such Claim from and after the occurrence of a
default under the agreements governing or instruments evidencing the
Amplicon Lease Secured Claim, the Amplicon Lease Secured Claim shall
be reinstated, and the Debtors shall (i) cure all defaults that
occurred before or from and after the Petition Date (other than
defaults of a kind specified in section 365(b)(2) of the Bankruptcy
Code), (ii) reinstate the maturity of the Amplicon Lease Secured
Claim as such maturity existed prior to the occurrence of such
default, (iii) compensate the holder of such Claim for any damages
incurred as a consequence of any reasonable reliance by such holder
on such contractual provision or such applicable law, and (iv) not
otherwise alter the legal, equitable, or contractual rights to which
the holder of the Amplicon Lease Secured Claim is entitled.
or
c. On the Effective Date, the holder of the
Amplicon Lease Secured Claim shall be paid the Allowed Amount of the
Amplicon Lease Secured Claim, in full, in cash.
3. Status: Class 2 is not impaired. The holder of the
Claim in Class 2 is deemed to accept the Plan and, accordingly, is not entitled
to vote to accept or reject the Plan.
3.2.3 CLASS 3. CONNECTICUT MUTUAL NOTE SECURED CLAIM.
1. Classification: Class 3 consists of the Connecticut
Mutual Note Secured Claim.
2. Treatment: The holder of the Connecticut Mutual Note
Secured Claim will retain the liens securing the Connecticut Mutual Note Secured
Claim and, on the Effective Date, will receive a note, substantially in the form
of Exhibit "1.1.38" to the Plan, which shall (i) have a maturity date of June 1,
2001, (ii) bear interest at the rate of 10.0% per annum, (iii) have a principal
amount equal to the amount of the Connecticut Mutual Note Secured Claim, and
(iv) provide for equal monthly payments of principal and interest in an amount
sufficient to fully amortize the principal amount of such note over the term of
such note.
3. Status: Class 3 is impaired. To the extent and in the
manner provided in the Voting Procedures Order, the holder of the Claim in Class
3 is entitled to vote to accept or reject the Plan.
3.2.4 CLASS 4. DESIGNATED REAL PROPERTY TAX CLAIM.
1. Classification: Class 4 consists of the Designated
Real Property Tax Claim.
2. Treatment: On the Effective Date, the property
securing the Designated Real Property Tax Claim shall be transferred to the
holder of the Designated Real Property Tax Claim in full and complete
satisfaction of the Designated Real Property Tax Claim. Notwithstanding the
foregoing, if the property securing the Designated Real Property Tax Claim is
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sold prior to the Effective Date, the Designated Real Property Tax Claim shall
be paid in full, in cash, on the date on which such sale is consummated.
3. Status: Class 4 is impaired. To the extent and in the
manner provided in the Voting Procedures Order, the holder of the Claim in Class
4 is entitled to vote to accept or reject the Plan.
3.2.5 CLASS 5. FIRST FIDELITY LEASE SECURED CLAIM.
1. Classification: Class 5 consists of the First
Fidelity Lease Secured Claim.
2. Treatment: On the Effective Date, the holder of the
First Fidelity Lease Secured Claim shall be paid the Allowed Amount of the First
Fidelity Lease Secured Claim, in full, in cash.
3. Status: Class 5 is unimpaired. The holder of the
Claim in Class 5 is deemed to accept the Plan and, accordingly, is not entitled
to vote to accept or reject the Plan.
3.2.6 CLASS 6. FLEET CREDIT SECURED CLAIM.
1. Classification: Class 6 consists of the Fleet Credit
Secured Claim.
2. Treatment: On the Effective Date, the holder of the
Fleet Credit Secured Claim shall be paid the Allowed Amount of the Fleet Credit
Secured Claim, in full, in cash.
3. Status: Class 6 is unimpaired. The holder of the
Claim in Class 6 is deemed to accept the Plan and, accordingly, is not entitled
to vote to accept or reject the Plan.
3.2.7 CLASS 7. GE CAPITAL SECURED CLAIM.
1. Classification: Class 7 consists of the GE Capital
Secured Claim.
2. Treatment: On the Effective Date, the holder of the
E Capital Secured Claim shall be paid the Allowed Amount of the GE Capital
Secured Claim, in full, in cash.
3. Status: Class 7 is not impaired. The holder of the
Claim in Class 7 is deemed to accept the Plan and, accordingly, is not entitled
to vote to accept or reject the Plan.
3.2.8 CLASS 8. GROVE IRB SECURED CLAIM.
1. Classification: Class 8 consists of the Grove IRB
Secured Claim.
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2. Treatment: On the Effective Date, the holder of the
Grove IRB Secured Claim shall be paid the Allowed Amount of the Grove IRB
Secured Claim, in full, in cash.
3. Status: Class 8 is not impaired. The holder of the
Claim in Class 8 is deemed to accept the Plan and, accordingly, is not entitled
to vote to accept or reject the Plan.
3.2.9 CLASS 9. IBM CREDIT CORPORATION SECURED CLAIM.
1. Classification: Class 9 consists of the IBM Credit
Corporation Secured Claim.
2. Treatment: On the Effective Date, the holder of the
IBM Credit Corporation Secured Claim shall be paid the Allowed Amount of the IBM
Credit Corporation Secured Claim, in full, in cash.
3. Status: Class 9 is not impaired. The holder of the
Claim in Class 9 is deemed to accept the Plan, and, accordingly, is not entitled
to vote to accept or reject the Plan.
3.2.10 CLASS 10. INTER-MARKET NOTE SECURED CLAIM.
1. Classification: Class 10 consists of the Inter-Market
Note Secured Claim.
2. Treatment: The holder of the Inter-Market Note
Secured Claim will retain the liens securing the Inter-Market Note Secured Claim
and, on the Effective Date, will receive a note, substantially in the form of
Exhibit "1.1.82" to the Plan, which shall (i) have a maturity date of June 1,
2001, (ii) bear interest at the rate of 10.0% per annum, (iii) have a principal
amount equal to the amount of the Inter-Market Note Secured Claim, and (iv)
provide for equal monthly payments of principal and interest in an amount
sufficient to fully amortize the principal amount of such note over the term of
such note.
3. Status: Class 10 is impaired. To the extent and in
the manner provided in the Voting Procedures Order, the holder of the Claim in
Class 10 is entitled to vote to accept or reject the Plan.
3.2.11 CLASS 11. LEESBURG SECURED CLAIM.
1. Classification: Class 11 consists of the Leesburg
Secured Claim.
2. Treatment: On the Effective Date, the holder of the
Leesburg Secured Claim shall be paid the Allowed Amount of the Leesburg Secured
Claim, in full, in cash.
3. Status: Class 11 is not impaired. The holder of the
Claim in Class 11 is deemed to accept the Plan and, accordingly, is not entitled
to vote to accept or reject the Plan.
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3.2.12 CLASS 12. NORTHWESTERN GROUP SECURED CLAIMS.
1. Classification: Class 12 consists of the Northwestern
Group Secured Claims.
2. Treatment: The holders of the Northwestern Group
Secured Claims will retain the liens securing the Northwestern Group Secured
Claims and, on the Effective Date, will each receive a note, substantially in
the form of Exhibit "1.1.94" to the Plan, which shall (i) have a maturity date
of May 1, 2001, (ii) bear interest at the rate of 10.0% per annum, (iii) have a
principal amount equal to the amount of such holder's share of the Northwestern
Group Secured Claims, and (iv) provide for equal monthly payments of principal
and interest in an amount sufficient to fully amortize the principal amount of
such note over the term of such note.
3. Status: Class 12 is impaired. To the extent and in
the manner provided in the Voting Procedures Order, the holders of the Claims in
Class 12 are entitled to vote to accept or reject the Plan.
3.2.13 CLASS 13. VALE EDBS CLAIMS.
1. Classification: Class 13 consists of the Vale EDBs
Claims.
2. Treatment: Notwithstanding any contractual provision
or applicable law that entitles the holders of the Vale EDBs Claims to demand or
receive payment of such Claims prior to the stated maturity of such Claims from
and after the occurrence of a default under the agreements or instruments
evidencing the Vale EDBs Claims, the Vale EDBs shall be reinstated, and the
Debtors shall (i) cure all defaults that occurred before or from and after the
Petition Date (other than defaults of a kind specified in section 365(b)(2) of
the Bankruptcy Code), (ii) reinstate the maturity of the Vale EDBs as such
maturity existed prior to the occurrence of such default, (iii) compensate the
holders of the Vale EDBs Claims for any damages incurred as a consequence of any
reasonable reliance by such holders on such contractual provision or such
applicable law, and (iv) not otherwise alter the legal, equitable, or
contractual rights to which the holders of the Vale EDBs Claims are entitled.
Entry of the Confirmation Order shall constitute a finding that no amounts are
payable and owing under subsections (i) and (iii) hereof.
3. Status: Class 13 is not impaired. The holders of the
Claims in Class 13 are deemed to accept the Plan and, accordingly, are not
entitled to vote to accept or reject the Plan.
3.2.14 CLASS 14. OTHER SECURED CLAIMS.
1. Classification: Class 14 consists of all Allowed
Other Secured Claims. Although placed in one class for purposes of convenience,
each Allowed Other Secured Claim shall be treated as though in a separate class
for all purposes under the Plan.
2. Treatment: At the option of the Debtors and in
accordance with section 1124 of the Bankruptcy Code, each Allowed Other Secured
Claim shall be treated in one of the following ways:
a. The legal, equitable and contractual rights to
which such Allowed Other Secured Claim entitles the holder of such
Claim shall be unaltered.
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or
b. Notwithstanding any contractual provision or
applicable law that entitles the holder of an Allowed Other Secured
Claim to demand or receive payment of such Claim prior to the stated
maturity of such Claim from and after the occurrence of a default
under the agreements governing or instruments evidencing such Claim,
such Claim shall be reinstated, and the Debtors shall (i) cure all
defaults that occurred before or from and after the Petition Date
(other than defaults of a kind specified in section 365(b)(2) of the
Bankruptcy Code), (ii) reinstate the maturity of such Claim as such
maturity existed prior to the occurrence of such default, (iii)
compensate the holder of such Claim for any damages incurred as a
consequence of any reasonable reliance by such holder on such
contractual provision or such applicable law, and (iv) not otherwise
alter the legal, equitable, or contractual rights to which the
holder of such Claim is entitled.
or
c. On the later of the Effective Date or the date
on which an Other Secured Claim becomes Allowed, the holder of such
Allowed Other Secured Claim shall be paid the Allowed Amount of such
Claim, in full, in cash. Interest accruing on any Allowed Other
Secured Claim after the Petition Date shall be accrued at the rate
of eight percent (8%) per annum.
3. Status: Class 14 is not impaired. The holders of the
Claims in Class 14 are deemed to accept the Plan and, accordingly, are not
entitled to vote to accept or reject the Plan.
3.2.15 CLASS 15. CONVENIENCE CLAIMS.
1. Classification: Class 15 consists of all Allowed
Convenience Claims.
2. Treatment: Each holder of an Allowed Convenience
Claim shall be paid the Allowed Amount of its Allowed Convenience Claim, in
full, in cash on the Effective Date.
3. Election: Any holder of an Unsecured Claim that
desires treatment of such Claim as a Convenience Claim shall make such election
on the Ballot to be provided to holders of Unsecured Claims and return such
Ballot to the address specified therein on or before the Ballot Date. Any
election made after the Ballot Date shall not be binding on the Debtors unless
the Ballot Date is expressly waived in writing by the Debtors with respect to
any such Claim.
4. Status: Class 15 is not impaired. The holders of the
Claims in Class 15 are deemed to accept the Plan and, accordingly, are not
entitled to vote to accept or reject the Plan.
3.2.16 CLASS 16. ASBESTOS PROPERTY DAMAGE CLAIMS.
1. Classification: Class 16 consists of all Asbestos
Property Damage Claims.
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2. Treatment: All Asbestos Property Damage Claims shall
be determined and paid pursuant to the terms, provisions, and procedures of the
Asbestos PD Trust and the Asbestos PD Trust Agreement and the claims resolution
procedures adopted pursuant thereto and referred to in subsection 4. of this
section . The Asbestos PD Trust will be funded in accordance with the provisions
of section of the Plan. The sole recourse of the holder of an Asbestos Property
Damage Claim shall be the Asbestos PD Trust, and such holder shall have no right
whatsoever at any time to assert its Asbestos Property Damage Claim against the
Reorganized Debtors. Without limiting the foregoing, on the Effective Date, all
entities shall be permanently and forever stayed, restrained, and enjoined from
taking any of the following actions for the purpose of, directly or indirectly,
collecting, recovering, or receiving payment of, on, or with respect to any
Asbestos Property Damage Claims (other than actions brought to enforce any right
or obligation under the Plan, any Exhibits to the Plan, or any other agreement
or instrument between any of the Debtors or the Reorganized Debtors and the
Asbestos PD Trust, which actions shall be in conformity and compliance with the
provisions hereof):
a. commencing, conducting, or continuing in any manner,
directly or indirectly, any suit, action, or other proceeding
(including, without express or implied limitation, a judicial,
arbitral, administrative, or other proceeding) in any forum against
or affecting any of the Reorganized Debtors or any property or
interests in property of any of the Reorganized Debtors;
b. enforcing, levying, attaching (including, without
express or implied limitation, any prejudgment attachment),
collecting, or otherwise recovering by any means or in any manner,
whether directly or indirectly, any judgment, award, decree, or
other order against any of the Reorganized Debtors or any property
or interests in property of any of the Reorganized Debtors;
c. creating, perfecting, or otherwise enforcing in any
manner, directly or indirectly, any Encumbrance against any of the
Reorganized Debtors or any property or interests in property of any
of the Reorganized Debtors;
d. setting off, seeking reimbursement of, contribution
from, or subrogation against, or otherwise recouping in any manner,
directly or indirectly, any amount against any liability owed to any
of the Reorganized Debtors or any property or interests in property
of any of the Reorganized Debtors; and
e. proceeding in any manner in any place with regard to
any matter that is subject to resolution pursuant to the Asbestos PD
Trust, except in conformity and compliance therewith.
3. Selection of Trustees for Asbestos PD Trust: If Class
16 votes to accept the Plan, then the trustees for the Asbestos PD Trust will be
selected by the representatives of each group for which a class proof of claim
asserting Asbestos Property Damage Claims was timely filed in the Chapter 11
Cases. If Class 16 votes to reject the Plan, Eagle-Picher will select one or
more trustees for the Asbestos PD Trust, by notice filed with the Bankruptcy
Court on or before ten (10) days prior to the Confirmation Hearing. Eagle-Picher
reserves the right to select Reorganized Eagle-Picher as the sole trustee of the
Asbestos PD Trust if Class 16 votes to reject the Plan.
4. Claims Resolution Procedures: If Class 16 votes to
accept the Plan, then the trustees for the Asbestos PD Trust will establish
procedures for the allowance and
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payment of Asbestos Property Damage Claims. If Class 16 votes to reject the
Plan, then the claims resolution procedures attached to the Plan as Exhibit
"1.1.6.5" will govern and control in all respects the allowance and payment of
Asbestos Property Damage Claims.
5. Status: Class 16 is impaired. To the extent and in
the manner provided in the Voting Procedures Order, the holders of the Claims in
Class 16 are entitled to vote to accept or reject the Plan.
3.2.17 CLASS 17. ASBESTOS PERSONAL INJURY CLAIMS AND
LEAD PERSONAL INJURY CLAIMS.
1. Classification: Class 17 consists of all Asbestos
Personal Injury Claims and Lead Personal Injury Claims.
2. Treatment: All Asbestos Personal Injury Claims and
Lead Personal Injury Claims shall be determined and paid pursuant to the terms,
provisions, and procedures of the PI Trust and the Asbestos and Lead PI Trust
Agreement. The PI Trust will be funded in accordance with the provisions of
section of the Plan. The sole recourse of the holder of an Asbestos Personal
Injury Claim or Lead Personal Injury Claim shall be the PI Trust, and such
holder shall have no right whatsoever at any time to assert its Asbestos
Personal Injury Claim or Lead Personal Injury Claim, as the case may be, against
any PI Protected Party. Without limiting the foregoing, on the Effective Date,
all Entities shall be permanently and forever stayed, restrained, and enjoined
from taking any of the following actions for the purpose of, directly or
indirectly, collecting, recovering, or receiving payment of, on, or with respect
to any Asbestos Personal Injury Claims or Lead Personal Injury Claims (other
than actions brought to enforce any right or obligation under the Plan, any
Exhibits to the Plan or any other agreement or instrument between any of the
Debtors, or the Reorganized Debtors and the PI Trust, which actions shall be in
conformity and compliance with the provisions hereof):
a. commencing, conducting, or continuing in any manner,
directly or indirectly, any suit, action, or other proceeding
(including, without express or implied limitation, a judicial,
arbitral, administrative, or other proceeding) in any forum against
or affecting any PI Protected Party or any property or interests in
property of any PI Protected Party;
b. enforcing, levying, attaching (including, without
express or implied limitation, any prejudgment attachment),
collecting, or otherwise recovering by any means or in any manner,
whether directly or indirectly, any judgment, award, decree, or
other order against any PI Protected Party or any property or
interests in property of any PI Protected Party;
c. creating, perfecting, or otherwise enforcing in any
manner, directly or indirectly, any Encumbrance against any PI
Protected Party or any property or interests in property of any PI
Protected Party;
d. setting off, seeking reimbursement of, contribution
from, or subrogation against, or otherwise recouping in any manner,
directly or indirectly, any amount against any liability owed to any
PI Protected Party or any property or interests in property of any
PI Protected Party; and
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e. proceeding in any manner in any place with regard to
any matter that is subject to resolution pursuant to the PI Trust,
except in conformity and compliance therewith.
Nothing contained herein shall constitute or be deemed a waiver of any claim,
right, or cause of action that the Debtors, the Reorganized Debtors, or the PI
Trust may have against any Entity in connection with or arising out of an
Asbestos Personal Injury Claim or Lead Personal Injury Claim.
3. Discounted Payment Election: The Ballot to be
distributed to holders of Asbestos Personal Injury Claims will permit such
holders to elect to have their Asbestos Personal Injury Claims processed and
paid pursuant to the discounted payment procedure set forth in the Asbestos and
Lead PI Trust Agreement and the claims resolution procedures adopted pursuant
thereto.
4. Status: Class 17 is impaired. To the extent and in
the manner provided in the Voting Procedures Order, the holders of the Claims in
Class 17 are entitled to vote to accept or reject the Plan.
3.2.18 CLASS 18. OTHER PRODUCT LIABILITY TORT CLAIMS.
1. Classification: Class 18 consists of all Other
Product Liability Tort Claims.
2. Treatment: Each holder of an Allowed Other Product
Liability Tort Claim shall receive consideration having a value, determined by
Reorganized Eagle-Picher in good faith, equal to the value that would have been
distributed to such holder if such Allowed Other Product Liability Tort Claim
had been an Allowed Unsecured Claim on the Final Distribution Date; provided,
however, that, in determining the Pro Rata Share that would have been payable if
such Allowed Other Product Liability Tort Claim had been an Allowed Unsecured
Claim, no adjustments shall be made to the denominator of the equation specified
in section ; provided further, that, if any Other Product Liability Tort Claim
becomes known prior to the Final Distribution Date, the Other Product Liability
Tort Claim shall be treated as an Unsecured Claim for all purposes. The
treatment provided herein is not, and shall not be deemed to constitute, a
waiver of any of the Debtors' applicable non-bankruptcy defenses, including
statute of limitations.
3. Status: Class 18 is impaired. To the extent and in
the manner provided in the Voting Procedures Order, the holders of the Claims in
Class 18 are entitled to vote to accept or reject the Plan.
3.2.19 CLASS 19. ENVIRONMENTAL CLAIMS.
1. Classification: Class 19 consists of all
Environmental Claims.
2. Treatment: Each holder of an Environmental Claim
shall be entitled to treatment of its Environmental Claim and receive such
consideration as is provided in the settlement agreement applicable to such
Environmental Claim. Without limiting the provisions of such settlement
agreement, each holder of an Environmental Claim, to the extent any portion of
such Environmental Claim becomes Allowed prior to any Distribution, shall
receive on the Initial Distribution Date and the Final Distribution Date its Pro
Rata Share of the Distribution Value less the aggregate value of consideration
(computed as provided herein) previously distributed on account
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of such Allowed portion of the Environmental Claim in any Distribution made
prior thereto. The sole recourse of the holders of Environmental Claims against
the Debtors, the Reorganized Debtors, or any property or interests in property
of the Debtors or the Reorganized Debtors shall be in accordance with the rights
of such holders set forth in such settlement agreement. Nothing contained herein
or in any settlement agreement relating to an Environmental Claim shall
constitute or be deemed a waiver of any claim, right, or cause of action that
the Debtors or the Reorganized Debtors may have against any Entity that is not a
party to such settlement agreement. As to any portion of an Environmental Claim
that becomes Allowed prior to the Initial Distribution Date or the Final
Distribution Date, the holder of such Environmental Claim shall receive its
Distribution Amount in consideration consisting of Available Cash in an amount
equal to one-half (1/2) of the Distribution Amount and Divestiture Notes having
an aggregate principal amount equal to one-half (1/2) of the Distribution
Amount.
3. Status: Class 19 is impaired. The holders of the Claims in
Class 19 are entitled to vote to accept or reject the Plan.
3.2.20 CLASS 20. UNSECURED CLAIMS OTHER THAN CONVENIENCE
CLAIMS AND THE SPECIFIED TREATMENT CLAIMS.
1. Classification: Class 20 consists of Unsecured Claims
other than Convenience Claims and Specified Treatment Claims.
2. Treatment: Each holder of an Allowed Unsecured Claim
in Class 20 shall receive on the Initial Distribution Date and the Final
Distribution Date its Pro Rata Share of the Distribution Value less the
aggregate value of consideration (computed as provided herein) previously
distributed on account of such Allowed Unsecured Claim in any Distribution made
prior thereto. On the Initial Distribution Date and the Final Distribution Date,
each such holder's Distribution Amount shall be paid in consideration consisting
of Available Cash in an amount equal to one-half (1/2) of the Distribution
Amount and Divestiture Notes having an aggregate principal amount equal to
one-half (1/2) of the Distribution Amount.
3. Cancellation of Unsecured Debt Securities: As of the
Effective Date, all notes, agreements, and securities evidencing Unsecured
Claims and the rights of the holders thereof thereunder, including, without
express or implied limitation, the Unsecured Debt Securities and each Unsecured
Debt Securities Indenture, shall be cancelled and deemed null and void and of no
further force and effect, and the holders thereof shall have no rights, and such
instruments shall evidence no rights, except the right to receive the
Distributions provided herein. Notwithstanding the foregoing, such cancellation
shall not impair the rights and duties under each Unsecured Debt Securities
Indenture as between the Unsecured Debt Securities Trustee and the beneficiaries
of the trust created thereby.
4. Surrender of Bearer Unsecured Debt Securities:
Distributions with respect to the Bearer Unsecured Debt Securities shall be made
to the Unsecured Debt Securities Trustee for payment to the individual holders
of Bearer Unsecured Debt Securities. No holder of Bearer Unsecured Debt
Securities shall be entitled to any Distribution unless and until such holder
shall have first surrendered or caused to be surrendered to the Unsecured Debt
Securities Trustee the original Bearer Unsecured Debt Securities held by it or,
in the event that such Unsecured Debt Securities have been lost, destroyed,
stolen, or mutilated, executed and delivered an affidavit of loss and indemnity
with respect thereto in the form customarily utilized for such purposes that is
reasonably satisfactory to the Debtors and the Unsecured Debt Securities Trustee
and, in the event either the Debtors or the Unsecured Debt Securities Trustee
requests, furnished a bond in form and
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substance (including, without express or implied limitation, amount) reasonably
satisfactory to the Debtors or the Unsecured Debt Securities Trustee, as the
case may be. Promptly upon the surrender of any Bearer Unsecured Debt
Securities, the Unsecured Debt Securities Trustee shall cancel such securities
and deliver such cancelled securities to the Reorganized Debtors or otherwise
dispose of such securities in such manner as the Reorganized Debtors may
request. In accordance with section 1143 of the Bankruptcy Code, any holder of
Bearer Unsecured Debt Securities that fails to surrender its Bearer Unsecured
Debt Securities or deliver an affidavit of loss and indemnity as provided herein
within the Retention Period shall be deemed to have forfeited all rights and
claims against the Debtors and the Reorganized Debtors and shall not participate
in any Distribution on account of the Bearer Unsecured Debt Securities. As soon
as practicable after the receipt of the foregoing from the holder of Bearer
Unsecured Debt Securities, the Unsecured Debt Securities Trustee shall make the
Distribution provided hereunder. Thereafter, the Unsecured Debt Securities
Trustee shall maintain a register of the holders of Bearer Unsecured Debt
Securities that have complied with the foregoing provisions of this paragraph
and the amount of Bearer Unsecured Debt Securities held by each such holder, and
any further Distribution made shall be made by the Unsecured Debt Securities
Trustee to the holders reflected on such register.
5. Record Date for Registered Unsecured Debt Securities:
As at the close of business on the Record Date, the transfer ledgers for the
Registered Unsecured Debt Securities shall be closed, and there shall be no
further changes in the record holders of any Registered Unsecured Debt
Securities. Distributions with respect to the Registered Unsecured Debt
Securities shall be made to the Unsecured Debt Securities Trustee for payment to
the record holders of any Registered Unsecured Debt Securities as reflected on
the transfer ledgers for the Registered Unsecured Debt Securities as at the
close of business on the Record Date. The Debtors or the Reorganized Debtors, as
the case may be, and the Unsecured Debt Securities Trustee shall have no
obligation to recognize any transfer of the Registered Unsecured Debt Securities
that is not recorded on the transfer ledgers for the Registered Unsecured Debt
Securities as of the close of business on the Record Date. The Debtors or the
Reorganized Debtors, as the case may be, and the Unsecured Debt Securities
Trustee shall be entitled instead to recognize and deal with, for all purposes
hereunder, only those record holders stated on the transfer ledgers of the
Registered Unsecured Debt Securities Trustee as of the close of business on the
Record Date.
6. Expiration of the Retention Period: Upon the
expiration of the Retention Period, all monies or other property held for
distribution by the Unsecured Debt Securities Trustee shall be returned to the
Reorganized Debtors by the Unsecured Debt Securities Trustee, free and clear of
any claim or interest of any nature whatsoever, including, without express or
implied limitation, escheat rights of any governmental unit under applicable
law.
7. Compensation of the Unsecured Debt Securities
Trustee: The Unsecured Debt Securities Trustee shall be compensated by the
Reorganized Debtors for services rendered from and after the Effective Date,
including the reasonable compensation, disbursements, and expenses of the agents
and legal counsel of the Unsecured Debt Securities Trustee in connection with
the performance of its duties under this section and shall be indemnified by the
Reorganized Debtors for any loss, liability, or expense incurred by it in
connection with the performance of such duties to the same extent and in the
same manner as provided in the Unsecured Debt Securities Indenture.
8. Interest: Interest shall neither accrue nor be
payable with respect to Allowed Unsecured Claims.
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9. Status: Class 20 is impaired. To the extent and in
the manner provided in the Voting Procedures Order, the holders of the Claims in
Class 20 are entitled to vote to accept or reject the Plan.
3.2.21 CLASS 21. SPECIFIED TREATMENT CLAIMS.
1. Classification: Class 21 consists of the Specified
Treatment Claims.
2. Treatment: Each holder of a Specified Treatment Claim
shall receive on the Initial Distribution Date and the Final Distribution Date
its Pro Rata Share of the Distribution Value less the aggregate value of
consideration (computed as provided herein) previously distributed on account of
such Specified Treatment Claim in any Distribution made prior thereto. On the
Initial Distribution Date and the Final Distribution Date, each such holder's
Distribution Amount shall be paid in consideration consisting of Available Cash
in an amount equal to one-half (1/2) of the Distribution Amount and Divestiture
Notes having an aggregate principal amount equal to one-half (1/2) of the
Distribution Amount. Notwithstanding the foregoing, the aggregate value of the
Distributions on account of such Specified Treatment Claim shall be no less than
the amount set forth in the settlement agreement pursuant to which such
Specified Treatment Claim became Allowed and shall not exceed the amount set
forth in such settlement agreement.
3. Status: Class 21 is impaired. To the extent and in
the manner provided in the Voting Procedures Order, the holders of the Claims in
Class 21 are entitled to vote to accept or reject the Plan.
3.2.22 CLASS 22. AFFILIATE CLAIMS AND INTERESTS.
1. Classification: Class 22 consists of Affiliate Claims
and Interests.
2. Treatment: At the option of the Debtors and in
accordance with section 1124 of the Bankruptcy Code, the Allowed Affiliate
Claims and Interests shall be treated in one of the following ways:
a. The legal, equitable and contractual rights to
which such Allowed Affiliate Claims and Interests entitle the holder
of any such Claims and Interests shall be unaltered.
or
b. Notwithstanding any contractual provision or
applicable law that entitles the holder of Allowed Affiliate Claims
and Interests to demand or receive payment thereof prior to the
stated maturity thereof from and after the occurrence of a default
under the agreements governing or instruments evidencing such
Allowed Affiliate Claims and Interests, such Affiliate Claims and
Interests shall be reinstated, and the Debtors shall (i) cure all
defaults that occurred before or from and after the Petition Date
(other than defaults of a kind specified in section 365(b)(2) of the
Bankruptcy Code), (ii) reinstate the maturity of such Affiliate
Claims and Interests as such maturity existed prior to the
occurrence of such default, (iii) compensate the holders of such
Affiliate Claims and Interests for any damages incurred as a
consequence of any reasonable reliance by such holder on such
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contractual provision or such applicable law, and (iv) not otherwise
alter the legal, equitable, or contractual rights to which the
holders of such Affiliate Claims and Interests are entitled.
or
c. On the later of the Effective Date or the date
on which any Affiliate Claims and Interests become Allowed, the
holder of such Allowed Affiliate Claims and Interests shall be paid
the Allowed Amount of such Affiliate Claims and Interests, in full,
in cash.
3. Status: Class 22 is not impaired. The holders of
Claims and Interests in Class 22 are deemed to accept the Plan and, accordingly,
are not entitled to vote to accept or reject the Plan.
3.2.23 CLASS 23. PENALTY CLAIMS.
1. Classification: Class 23 consists of Penalty Claims.
2. Treatment: The holders of Penalty Claims will not
receive or retain any interest or property under the Plan.
3. Status: Class 23 is impaired. The holders of Claims
in Class 23 are deemed to reject the Plan and, accordingly, are not entitled to
vote to accept or reject the Plan.
3.2.24 CLASS 24. EQUITY INTERESTS.
1. Classification: Class 24 consists of Equity
Interests.
2. Treatment: The holders of Equity Interests will not
receive or retain any interest or property under the Plan. On the Effective
Date, the certificates that previously evidenced ownership of Existing
Eagle-Picher Common Stock shall be cancelled and shall be null and void, and the
holders thereof shall have no rights, and such certificates shall evidence no
rights.
3. Status: Class 24 is impaired. The holders of Equity
Interests are deemed to reject the Plan and, accordingly, are not entitled to
vote to accept or reject the Plan.
3.3 COMPROMISE AND SETTLEMENT RELATING TO THE AMOUNT OF THE PI TRUST
SHARE. The use of the amount of Two Billion and 00/100 Dollars
($2,000,000,000.00) as the PI Trust Share under the Plan represents a compromise
and settlement between the Plan Proponents and the Unsecured Creditors'
Committee regarding the issues raised in the appeal by the Unsecured Creditors'
Committee of the Bankruptcy Court's Decision and Order on 1) Debtors' Motion to
Estimate Liability and 2) Motion of UCC for Information Gathering, dated
December 4, 1995, and as amended on December 14, 1995, which appeal shall be
deemed dismissed with prejudice on the Effective Date. The Unsecured Creditors'
Committee will take whatever actions are reasonably necessary to effectuate such
dismissal.
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3.4 CONTROVERSY CONCERNING IMPAIRMENT. In the event of a controversy
as to whether any class of Claims or Equity Interests is impaired under the
Plan, the Bankruptcy Court shall, after notice and a hearing, determine such
controversy prior to the Confirmation Date.
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ARTICLE 4
MODIFICATION, REVOCATION, OR WITHDRAWAL OF THE PLAN
4.1 MODIFICATION OF THE PLAN. The Plan Proponents may, upon the
unanimous written consent of all Plan Proponents, alter, amend, or modify the
Plan under section 1127(a) of the Bankruptcy Code at any time prior to the
Confirmation Date so long as the Plan, as modified, meets the requirements of
sections 1122 and 1123 of the Bankruptcy Code. After the Confirmation Date and
prior to the Effective Date, the Plan Proponents, upon the unanimous written
consent of all Plan Proponents, may alter, amend, or modify the Plan in
accordance with section 1127(b) of the Bankruptcy Code.
4.2 REVOCATION OR WITHDRAWAL.
4.2.1 Right to Revoke. The Plan may be revoked or withdrawn
prior to the Confirmation Date by either (a) after the Confirmation Deadline,
any of the Plan Proponents or (b) upon the unanimous written consent of all Plan
Proponents, the Plan Proponents.
4.2.2 Effect of Withdrawal or Revocation. If the Plan is
revoked or withdrawn prior to the Confirmation Date, then the Plan shall be
deemed null and void. In such event, nothing contained herein shall be deemed to
constitute a waiver or release of any claims by the Debtors or any other Entity
or to prejudice in any manner the rights of the Debtors or any Entity in any
further proceedings involving the Debtors.
4.3 AMENDMENT OF PLAN DOCUMENTS. From and after the Effective Date,
the authority to amend, modify, or supplement the Exhibits to the Plan and any
documents attached to such Exhibits shall be as provided in such Exhibits and
their respective attachments.
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ARTICLE 5
PROVISIONS FOR TREATMENT OF DISPUTED CLAIMS
5.1 OBJECTIONS TO CLAIMS; PROSECUTION OF DISPUTED CLAIMS. The
Reorganized Debtors shall object to the allowance of Claims filed with the
Bankruptcy Court (other than Asbestos Personal Injury Claims, Lead Personal
Injury Claims, and Asbestos Property Damage Claims) with respect to which the
Reorganized Debtors dispute liability in whole or in part. Notwithstanding the
foregoing, the Reorganized Debtors, at their option, may continue to prosecute
objections to Lead Personal Injury Claims and Asbestos Property Damage Claims if
such objections are pending as of the Effective Date. To the extent that
objections to Lead Personal Injury Claims are not pending as of the Effective
Date or the Reorganized Debtors elect not to prosecute pending objections to
Lead Personal Injury Claims, the PI Trust shall be vested with the complete
power and authority to file and prosecute any such objections. To the extent
that objections to Asbestos Property Damage Claims are not pending as of the
Effective Date or the Reorganized Debtors elect not to prosecute pending
objections to Asbestos Property Damage Claims, the Asbestos PD Trust shall be
vested with the complete power and authority to file and prosecute any such
objections. All objections that are filed and prosecuted by the Reorganized
Debtors as provided herein shall be litigated to Final Order by the Reorganized
Debtors or compromised and settled in accordance with the Claims Settlement
Guidelines. Unless otherwise provided herein or ordered by the Bankruptcy Court,
all objections by the Reorganized Debtors to Claims shall be served and filed no
later than one week after the Effective Date.
5.2 AMENDMENT OF CLAIMS SETTLEMENT GUIDELINES. On the Effective
Date, the Claims Settlement Guidelines shall be amended as set forth on Exhibit
"5.2" to the Plan.
5.3 DISTRIBUTIONS ON ACCOUNT OF DISPUTED CLAIMS. Notwithstanding
Section 3.2 hereof, a Distribution shall only be made by the Reorganized Debtors
to the holder of a Disputed Claim when, and to the extent that, such Disputed
Claim becomes Allowed. No interest shall be paid on account of Disputed Claims
that later become Allowed except to the extent that payment of interest is
required under section 506(b) of the Bankruptcy Code. No Distribution shall be
made with respect to all or any portion of any Disputed Claim pending the entire
resolution thereof in the manner prescribed by section hereof.
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ARTICLE 6
ACCEPTANCE OR REJECTION OF THE PLAN
6.1 IMPAIRED CLASSES TO VOTE. Each holder of a Claim in an impaired
class of Claims shall be entitled to vote to accept or reject the Plan to the
extent and in the manner provided by the Voting Procedures Order.
6.2 ACCEPTANCE BY CLASS OF CLAIMS. Acceptance of the Plan by any
impaired class of Claims shall be determined in accordance with the Voting
Procedures Order.
6.3 NONCONSENSUAL CONFIRMATION. Because Classes 23 and 24 are deemed
to have rejected the Plan, the Plan Proponents intend to request that the
Bankruptcy Court confirm the Plan in accordance with section 1129(b) of the
Bankruptcy Code with respect to Classes 23 and 24. In the event that any
impaired class of Claims shall fail to accept the Plan in accordance with
section 1129(a) of the Bankruptcy Code, the Plan Proponents reserve the right to
(a) request that the Bankruptcy Court confirm the Plan in accordance with
section 1129(b) of the Bankruptcy Code with respect to such non-accepting class,
in which case the Plan shall constitute a motion for such relief, or (b) amend
the Plan in accordance with section 4.1 hereof.
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ARTICLE 7
IMPLEMENTATION OF THE PLAN
7.1 AMENDMENT OF ARTICLES OF INCORPORATION. The Articles of
Incorporation shall be amended and restated as of the Effective Date in
substantially the form of the Amended and Restated Articles of Incorporation,
inter alia, (a) to prohibit the issuance of nonvoting equity securities as
required by section 1123(a)(6) of the Bankruptcy Code, subject to further
amendment of such Amended and Restated Articles of Incorporation as permitted by
applicable law, (b) to authorize the cancellation of the Existing Eagle-Picher
Common Stock and the creation of twenty million (20,000,000) shares of New
Eagle-Picher Common Stock, (i) of which ten million (10,000,000) shares shall be
issued to the PI Trust and the holders of Allowed Claims pursuant to the
provisions of the Plan, and (ii) of which ten million (10,000,000) shares shall
be reserved for future issuance, (c) to restrict the transfer of New
Eagle-Picher Common Stock and any other interests that would be treated as
"stock" of Reorganized Eagle-Picher under Section 382 of the Internal Revenue
Code in order to permit the continued utilization of the net operating loss
carryovers, capital loss carryovers, general business credit carryovers,
alternative minimum tax carryovers, foreign tax credit carryovers, and any net
unrealized built-in losses to which Reorganized Eagle-Picher, or any other
member of the consolidated group of which Reorganized Eagle-Picher is the common
parent, is or may be entitled, and (d) to effectuate the provisions of the Plan.
7.2 AMENDMENT OF CODE OF REGULATIONS. The Code of Regulations of
Eagle-Picher shall be amended and restated as of the Effective Date in
substantially the form of the Amended and Restated Code of Regulations.
7.3 DISTRIBUTIONS UNDER THE PLAN. Whenever any Distribution to be
made under this Plan shall be due on a day other than a Business Day, such
Distribution shall instead be made, without interest, on the immediately
succeeding Business Day, but shall be deemed to have been made on the date due.
For federal income tax purposes, a Distribution will be allocated to the
principal amount of a Claim first and then, to the extent the Distribution
exceeds the principal amount of the Claim, to accrued but unpaid interest.
7.4 TIMING OF DISTRIBUTIONS UNDER THE PLAN. Any Distribution to be
made by the Debtors or the Reorganized Debtors pursuant to the Plan shall be
deemed to have been timely made if made within ten (10) days after the time
therefor specified in the Plan. Distributions with respect to Classes 19, 20,
and 21, and to the PI Trust shall only be made on the Initial Distribution Date
and the Final Distribution Date; provided, however, that, if a Claim in any of
Classes 19, 20, or 21 becomes Allowed subsequent to the Initial Distribution
Date, the Reorganized Debtors may, in their sole discretion, make a Distribution
with respect to such Claim prior to the Final Distribution Date. If Class 16
votes to accept the Plan, the Distribution of the Asbestos PD Trust Funding
Obligation will be made on the Effective Date. If Class 16 votes to reject the
Plan, the Distribution of the Asbestos PD Trust Funding Obligation will be made
on the Initial Distribution Date and, to the extent not distributed on the
Initial Distribution Date, the Final Distribution Date.
7.5 MANNER OF PAYMENT UNDER THE PLAN. Unless the Entity receiving a
payment agrees otherwise, any payment in cash to be made by the Debtors or the
Reorganized Debtors shall be made, at the election of the Debtors or the
Reorganized Debtors (as the case may be), by check drawn on a domestic bank or
by wire transfer from a domestic bank.
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7.6 HART-SCOTT-RODINO COMPLIANCE. Any shares of New Eagle-Picher
Common Stock to be distributed under the Plan to any Entity required to file a
Premerger Notification and Report Form under the Hart-Scott-Rodino Antitrust
Improvement Act of 1976, as amended, shall not be distributed until the
notification and waiting periods applicable under such Act to such Entity shall
have expired or been terminated.
7.7 FRACTIONAL SHARES OR OTHER DISTRIBUTIONS. Notwithstanding
anything to the contrary contained herein, no fractional shares of New
Eagle-Picher Common Stock shall be distributed, no New Debt Securities will be
issued in an amount equal to fractional cents, and no cash payments of fractions
of cents will be made. Fractional cents shall be rounded to the nearest whole
cent (with .5 cent or less to be rounded down). Fractional shares shall be
rounded to the nearest whole share (with .5 share or less to be rounded down).
7.8 OCCURRENCE OF THE CONFIRMATION DATE. The following shall
constitute conditions to confirmation of the Plan:
7.8.0.1 The Bankruptcy Court makes the following
findings, each of which shall be contained in the Confirmation Order:
7.8.0.1.1 The Asbestos and Lead PI Permanent
Channeling Injunction is to be implemented in connection with the PI
Trust.
7.8.0.1.2 At the time of the order for relief with
respect to Eagle-Picher, Eagle-Picher had been named as a defendant
in personal injury, wrongful death, and property damage actions
seeking recovery for damages allegedly caused by the presence of, or
exposure to, asbestos or asbestos-containing products.
7.8.0.1.3 At the time of the order for relief with
respect to Eagle-Picher, Eagle-Picher had been named as a defendant
in personal injury, wrongful death, and property damage actions
seeking recovery for damages allegedly caused by the presence of, or
exposure to, lead-containing chemicals.
7.8.0.1.4 The PI Trust, as of the Effective Date,
will assume the liabilities of the Debtors with respect to Asbestos
Personal Injury Claims and Lead Personal Injury Claims.
7.8.0.1.5 The PI Trust is to be funded in whole or
in part by securities of one or more of the Debtors and by the
obligations of such Debtors to make future payments, including
dividends.
7.8.0.1.6 The PI Trust is to own, or by the
exercise of rights granted under the Plan would be entitled to own
if specified contingencies occur, a majority of the voting shares of
Eagle-Picher, the direct or indirect parent corporation of each of
the Debtors.
7.8.0.1.7 The Debtors are likely to be subject to
substantial future Demands for payment arising out of the same or
similar conduct or events that gave rise to the Claims that are
addressed by the Asbestos and Lead PI Permanent Channeling
Injunction.
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7.8.0.1.8 The actual amounts, numbers, and timing
of the future Demands referenced in section cannot be determined.
7.8.0.1.9 Pursuit of the Demands referenced in
section outside the procedures prescribed by the Plan is likely to
threaten the Plan's purpose to deal equitably with Claims and future
Demands.
7.8.0.1.10 The terms of the Asbestos and Lead PI
Permanent Channeling Injunction, including any provisions barring
actions against third parties pursuant to section 524(g)(4)(A), are
set out in the Plan and in any disclosure statement supporting the
Plan.
7.8.0.1.11 The Plan establishes, in Class 17
(Asbestos Personal Injury Claims and Lead Personal Injury Claims), a
separate class of the claimants whose Claims are to be addressed by
the PI Trust.
7.8.0.1.12 Class 17 (Asbestos Personal Injury
Claims and Lead Personal Injury Claims) has voted, by at least 75
percent (75%) of those voting, in favor of the Plan.
7.8.0.1.13 Pursuant to court orders or otherwise,
the PI Trust will operate through mechanisms such as structured,
periodic, or supplemental payments, pro rata distributions,
matrices, or periodic review of estimates of the numbers and values
of present Claims and future Demands, or other comparable
mechanisms, that provide reasonable assurance that the PI Trust will
value, and be in a financial position to pay, present Claims and
future Demands that involve similar Claims in the same manner.
7.8.0.1.14 The Future Claimants' Representative
was appointed as part of the proceedings leading to issuance of the
Asbestos and Lead PI Permanent Channeling Injunction for the purpose
of protecting the rights of persons that might subsequently assert
Demands that are addressed in the Asbestos and Lead PI Permanent
Channeling Injunction and transferred to the PI Trust.
7.8.0.1.15 Identifying each PI Protected Party in
the Asbestos and Lead PI Permanent Channeling Injunction is fair and
equitable with respect to persons that might subsequently assert
Demands against each such PI Protected Party, in light of the
benefits provided, or to be provided, to the PI Trust by or on
behalf of any such PI Protected Party.
7.8.0.2 Class 17 (Asbestos Personal Injury Claims and
Lead Personal Injury Claims) votes, by at least 75 percent (75%) of those
voting, in favor of the Plan.
7.8.0.3 The Bankruptcy Court has entered an order
approving the Environmental Settlement Agreement, which shall be
reasonably acceptable to the Plan Proponents, and such order has become a
Final Order.
7.8.0.4 The Confirmation Order shall be, in form and
substance, acceptable to the Plan Proponents.
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The Plan shall not be confirmed and the Confirmation Order shall not be entered
until and unless each of the foregoing conditions to confirmation is either
satisfied or waived by the unanimous vote of the Plan Proponents.
7.9 OCCURRENCE OF THE EFFECTIVE DATE. The "effective date of the
plan," as used in section 1129 of the Bankruptcy Code, shall not occur, and the
Plan shall be of no force and effect, until the Effective Date. The occurrence
of the Effective Date is subject to satisfaction of the following conditions
precedent:
7.9.0.1 The Confirmation Order has become a Final Order, or,
if not, then at least thirty (30) days have elapsed since the Confirmation
Date.
7.9.0.2 The Bankruptcy Court and/or the District Court, as
required, shall have entered the Asbestos and Lead PI Permanent Channeling
Injunction, which shall contain terms satisfactory to the Plan Proponents.
7.9.0.3 The Confirmation Order and the Asbestos and Lead PI
Permanent Channeling Injunction shall be in full force and effect.
7.9.0.4 No proceedings to estimate any Claims are pending.
7.9.0.5 If Class 16 votes to accept the Plan, the trustees for
the Asbestos PD Trust have been selected and have executed the Asbestos PD
Trust Agreement.
7.9.0.6 All Trustees have been selected in accordance with
that certain letter, dated November 9, 1993, from Eagle-Picher to the
Injury Claimants' Committee and the Future Claimants' Representative.
7.9.0.7 All Trustees have executed the Asbestos and Lead PI
Trust Agreement.
7.9.0.8 Certain favorable rulings have been obtained from the
IRS with respect to the qualification of the PI Trust as a "qualified
settlement fund" within the meaning of Treasury Regulation section
1.468B-1.
7.9.0.9 Certain favorable rulings have been obtained from the
IRS with respect to the application of section 382 of the Internal Revenue
Code.
7.9.0.10 The Reorganized Debtors shall have entered into and
shall have credit availability under a credit facility to provide the
Reorganized Debtors with working capital (including letters of credit) in
an amount sufficient to meet the needs of the Reorganized Debtors, as
determined by the Reorganized Debtors.
7.9.0.11 The Asbestos PD Trust Share has been determined to be
no greater than Fifteen Million and 00/100 Dollars ($15,000,000.00).
Notwithstanding the foregoing, the Plan Proponents reserve, in their sole
discretion, the right, upon unanimous agreement of the Plan Proponents, to waive
the occurrence of any of the foregoing conditions precedent to the Effective
Date or to modify any of such conditions precedent; provided, however, that the
waiver or modification of condition set forth in section 7.9.0.11 hereof may
only be made upon the unanimous agreement of the Plan Proponents and the
Unsecured Creditors'
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Committee. Any such waiver of a condition precedent hereof may be effected at
any time, without notice, without leave or order of the Bankruptcy Court, and
without any formal action other than proceeding to consummate the Plan. Any
actions required to be taken on the Effective Date shall take place and shall be
deemed to have occurred simultaneously, and no such action shall be deemed to
have occurred prior to the taking of any other such action. If the Plan
Proponents unanimously decide that one of the foregoing conditions cannot be
satisfied and the occurrence of such condition is not waived by the Plan
Proponents (or, in the case of section 7.9.0.11, the Plan Proponents and the
Unsecured Creditors' Committee), then the Plan Proponents shall file a notice of
the failure of the Effective Date with the Bankruptcy Court, at which time the
Plan and the Confirmation Order shall be deemed null and void.
7.10 DISTRIBUTION OF UNCLAIMED PROPERTY. Any Distribution under the
Plan that is unclaimed after one hundred eighty (180) days following the date
such property is distributed shall be deemed not to have been made and shall be
transferred to the Reorganized Debtors, free and clear of any claims or
interests of any Entities, including, without express or implied limitation, any
claims or interests of any governmental unit under escheat principles. Nothing
contained herein shall affect the discharge of the Claim with respect to which
such Distribution was made, and the holder of such Claim shall be forever barred
from enforcing such Claim against the Reorganized Debtors or the Reorganized
Debtors' assets, estates, properties, or interests in property.
7.11 MANAGEMENT OF THE REORGANIZED DEBTORS. On the Effective Date,
the employment contracts substantially in the form of Exhibit "" to the Plan
automatically shall become effective. On the Effective Date, the Board of
Directors shall consist of the same individuals who sit on the Board of
Directors on the day immediately preceding the Effective Date. Each of the
members of such Board of Directors shall serve until the first annual meeting of
stockholders of Reorganized Eagle-Picher or his or her earlier resignation or
removal in accordance with the Amended and Restated Articles of Incorporation or
the Amended and Restated Code of Regulations. The composition of the board of
directors of each of the Reorganized Debtors, other than Reorganized
Eagle-Picher, shall remain unchanged, subject to the rights of Reorganized
Eagle-Picher and the other shareholders of any such Reorganized Debtor to elect
directors in accordance with the articles of incorporation or bylaws of such
Reorganized Debtor. The officers of the respective Debtors immediately prior to
the Effective Date shall serve as the officers of the respective Reorganized
Debtors on and after the Effective Date in accordance with any employment
agreement with the Reorganized Debtors and applicable nonbankruptcy law.
7.12 SUPPLEMENTAL SEVERANCE PROGRAM. The Supplemental Severance
Program shall be modified as provided in Exhibit "" to the Plan. The
Supplemental Severance Program, as so modified, shall remain in effect
subsequent to the Effective Date, and all benefits shall be payable thereunder
in accordance with the terms thereof, as modified.
7.13 CORPORATE ACTION. On the Effective Date, the adoption of the
Amended and Restated Articles of Incorporation, the filing by Reorganized
Eagle-Picher of the Amended and Restated Articles of Incorporation, and the
adoption of the Amended and Restated Code of Regulations, as contemplated by
section hereof, shall be authorized and approved in all respects, in each case
without further action under applicable law, regulation, order, or rule,
including, without express or implied limitation, any action by the stockholders
or directors of the Debtors, the Debtors in Possession, or the Reorganized
Debtors. On the Effective Date or as soon thereafter as is practicable,
Eagle-Picher shall file with the Secretary of State of the State of Ohio, in
accordance with Ohio Revised Code section 1701.73, the Amended and Restated
Articles of Incorporation. On the Effective Date, the cancellation of the
Existing Eagle-Picher Common Stock, the issuance of the New Eagle-Picher Common
Stock, the issuance of the New Debt Securities, the approval and effectiveness
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of the employment agreements, severance, and other benefits described in
sections 7.11, 7.12, 8.7 and hereof, and other matters provided under the Plan
involving the corporate structure of the Reorganized Debtors or corporate action
by the Reorganized Debtors shall be deemed to have occurred, be authorized, and
shall be in effect from and after the Effective Date without requiring further
action under applicable law, regulation, order, or rule, including, without
express or implied limitation, any action by the stockholders or directors of
the Debtors, the Debtors in Possession, or the Reorganized Debtors. The
Reorganized Debtors shall be authorized to enter into the reorganized credit
facility referenced in section 7.9.0.10 hereof without any further order of the
Bankruptcy Court.
7.14 EFFECTUATING DOCUMENTS AND FURTHER TRANSACTIONS. Each of the
officers of the Debtors and the Reorganized Debtors is authorized, in accordance
with his or her authority under the resolutions of the Board of Directors, to
execute, deliver, file, or record such contracts, instruments, releases,
indentures, and other agreements or documents and take such actions as may be
necessary or appropriate to effectuate and further evidence the terms and
conditions of the Plan and any notes or securities issued pursuant to the Plan.
7.15 DISSOLUTION OF EDI, INC. On or as of the Effective Date, EDI,
Inc. will be dissolved, and such dissolution shall be effective as of the
Effective Date pursuant to the Confirmation Order without any further action by
the stockholder or directors of EDI, Inc.
7.16 ALLOCATION OF PLAN DISTRIBUTIONS BETWEEN PRINCIPAL AND
INTEREST. To the extent that any Allowed Claim entitled to a Distribution under
the Plan is comprised of indebtedness and accrued but unpaid interest thereon,
such Distribution shall, for federal income tax purposes, be allocated to the
principal amount of the Claim first and then, to the extent the consideration
exceeds the principal amount of the Claim, to accrued but unpaid interest.
7.17 DISTRICT COURT APPROVAL OF THE CONFIRMATION ORDER. The Plan
Proponents may seek to have the Confirmation Order and the Asbestos and Lead PI
Permanent Channeling Injunction either entered or affirmed by the District
Court.
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ARTICLE 8
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
8.1 ASSUMPTION OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES. Any
executory contracts or unexpired leases listed on Exhibit "8.1" to the Plan
shall be deemed to have been assumed by the Reorganized Debtors on the Effective
Date, and the Plan shall constitute a motion to assume such executory contracts
and unexpired leases. Subject to the occurrence of the Effective Date, entry of
the Confirmation Order by the Clerk of the Bankruptcy Court shall constitute
approval of such assumptions pursuant to section 365(a) of the Bankruptcy Code
and a finding by the Bankruptcy Court that each such assumption is in the best
interest of the Debtors, their estates, and all parties in interest in the
Chapter 11 Cases. With respect to each such executory contract or unexpired
lease assumed by the Reorganized Debtors, unless otherwise determined by the
Bankruptcy Court pursuant to a Final Order or agreed to by the parties thereto
prior to the Effective Date, the dollar amount required to cure any defaults of
the Debtors existing as of the Confirmation Date shall be conclusively presumed
to be the amount set forth in Exhibit "8.1" with respect to such executory
contract or unexpired lease. Subject to the occurrence of the Effective Date,
any such cure amount shall be treated as an Allowed Administrative Expense under
the Plan, and, upon payment of such Allowed Administrative Expense, all defaults
of the Debtors existing as of the Confirmation Date with respect to such
executory contract or unexpired lease shall be deemed cured.
8.2 REJECTION OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES. Any
executory contracts or unexpired leases of any of the Debtors that (i) are not
listed on Exhibit "8.1" to the Plan, (ii) have not been assumed by any of the
Debtors with the approval of the Bankruptcy Court, and (iii) are not the subject
of pending motions to assume at the Confirmation Date shall be deemed to have
been rejected by the Debtors, the Plan shall constitute a motion to reject such
executory contracts and unexpired leases, and the Reorganized Debtors shall have
no liability thereunder except as is specifically provided in the Plan. Entry of
the Confirmation Order by the Clerk of the Bankruptcy Court shall constitute
approval of such rejections pursuant to section 365(a) of the Bankruptcy Code
and a finding by the Bankruptcy Court that each such rejected executory contract
or unexpired lease is burdensome and that the rejection thereof is in the best
interest of the Debtors, their estates, and all parties in interest in the
Chapter 11 Cases.
8.3 CLAIMS ARISING FROM REJECTION OR TERMINATION. Claims created by
the rejection of executory contracts or unexpired leases (including, without
limitation, the rejection provided in Section of the Plan) or the expiration or
termination of any executory contract or unexpired lease prior to the
Confirmation Date must be filed with the Bankruptcy Court and served on the
Debtors no later than thirty (30) days after (i) in the case of an executory
contract or unexpired lease that was terminated or expired by its terms prior to
the Confirmation Date, the Confirmation Date, (ii) in the case of an executory
contract or unexpired lease rejected by the Debtors, the entry of the order of
the Bankruptcy Court authorizing such rejection, or (iii) in the case of an
executory contract or unexpired lease that is deemed rejected pursuant to
section 8.2 of the Plan, the Confirmation Date. Any Claims for which a proof of
claim is not filed and served within such time will be forever barred from
assertion and shall not be enforceable against the Debtors, their estates,
assets, properties, or interests in property, or the Reorganized Debtors or
their estates, assets, properties, or interests in property. Unless otherwise
ordered by the Bankruptcy Court, all such Claims that are timely filed as
provided herein shall be treated as Unsecured Claims under the Plan.
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8.4 PREVIOUSLY SCHEDULED CONTRACTS. Exhibit "8.4" to the Plan sets
forth a list of agreements that were listed on the Schedules as executory
contracts, but which the Debtors believe should not be considered executory
contracts. If any such agreements are determined to be executory contracts, the
Debtors or the Reorganized Debtors, as the case may be, reserve the right to
seek the assumption or rejection of any such contracts, and the time within
which the Debtors or the Reorganized Debtors, as the case may be, may seek to
assume or reject any such agreements shall be tolled until ten (10) Business
Days after the date on which an order determining that any such agreement is an
executory contract becomes a Final Order. Set forth on Exhibit "8.4" is the
amount that the Debtors intend to treat as an Allowed Unsecured Claim for each
such agreement. Such amount and the treatment of each such agreement shall be
binding unless, on or before ten (10) days after the Confirmation Date, the
other party to any such agreement either (i) files a proof of claim (which proof
of claim shall be deemed timely filed) or (ii) files a motion seeking to compel
assumption or rejection of such agreement.
8.5 INSURANCE POLICIES.
8.5.1 Assumed Insurance Policies. To the extent that any or
all of the insurance policies set forth on Exhibit "8.5.1" to the Plan are
considered to be executory contracts, then, notwithstanding anything contained
in sections 8.1 and 8.2 of the Plan to the contrary, the Plan shall constitute a
motion to assume the insurance policies set forth on Exhibit "8.5.1" to the
Plan, and, subject to the occurrence of the Effective Date, the entry of the
Confirmation Order by the Clerk of the Bankruptcy Court shall constitute
approval of such assumption pursuant to section 365(a) of the Bankruptcy Code
and a finding by the Bankruptcy Court that each such assumption is in the best
interest of the Debtors, their estates, and all parties in interest in the
Chapter 11 Cases. Unless otherwise determined by the Bankruptcy Court pursuant
to a Final Order or agreed to by the parties thereto prior to the Effective
Date, no payments are required to cure any defaults of the Debtors existing as
of the Confirmation Date with respect to each such insurance policy set forth on
Exhibit "8.5.1" to the Plan. To the extent that the Bankruptcy Court determines
otherwise as to any such insurance policy, the Debtors reserve the right to seek
rejection of such insurance policy or other available relief.
8.5.2 Rejected Insurance Agreements. To the extent that any or
all of the insurance agreements set forth on Exhibit "8.5.2" to the Plan are
considered to be executory contracts, then, notwithstanding anything contained
in sections 8.1 and 8.2 of the Plan to the contrary, the Plan shall constitute a
motion to reject the insurance agreements set forth on Exhibit "8.5.2" to the
Plan, and the entry of the Confirmation Order by the Clerk of the Bankruptcy
Court shall constitute approval of such rejection pursuant to section 365(a) of
the Bankruptcy Code and a finding by the Bankruptcy Court that each such
rejected insurance agreement set forth on Exhibit "8.5.2" to the Plan is
burdensome and that the rejection thereof is in the best interest of the
Debtors, their estates, and all parties in interest in the Chapter 11 Cases.
8.5.3 Reservation of Rights. Nothing contained in the Plan,
including this section , shall constitute a waiver of any claim, right, or cause
of action that the Debtors or the Reorganized Debtors, as the case may be, may
hold against the insurer under any policy of insurance.
8.6 INDEMNIFICATION AND REIMBURSEMENT OBLIGATIONS. For purposes of
the Plan, the obligations of the Debtors to indemnify and reimburse their
directors or officers that were directors or officers, respectively, as at the
Petition Date or who became directors or officers after the Petition Date
against and for any obligations pursuant to articles of incorporation, codes of
regulations, bylaws, applicable state law, or specific agreement, or any
combination of the foregoing
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shall survive confirmation of the Plan, remain unaffected thereby, and not be
discharged in accordance with section 1141 of the Bankruptcy Code, irrespective
of whether indemnification or reimbursement is owed in connection with an event
occurring before, on, or after the Petition Date.
8.7 COMPENSATION AND BENEFIT PROGRAMS. All employment and severance
policies (including, without limitation, the Supplemental Severance Program, as
modified pursuant to section hereof), and all compensation and benefit plans,
policies and programs of the Debtors applicable to their present and former
employees, officers, and directors, including, without express or implied
limitation, all savings plans, retirement plans, health care plans, disability
plans, severance benefit plans, incentive plans, and life, accidental death, and
dismemberment insurance plans, shall be deemed to be, and shall be treated as
though they are, executory contracts that are deemed assumed under the Plan, and
the Debtors' obligations under such plans, policies, and programs shall be
deemed assumed pursuant to section 365(a) of the Bankruptcy Code, survive
confirmation of the Plan, remain unaffected thereby, and not be discharged in
accordance with section 1141 of the Bankruptcy Code. Any defaults existing under
any of such plans, policies, and programs shall be cured promptly after they
become known by the Debtors. Notwithstanding the foregoing, on the Effective
Date, the Eagle-Picher Automatic Dividend Reinvestment and Voluntary Cash
Payment Plan, the Eagle-Picher Industries, Inc. Stock Option Plan of 1983, as
amended, and the Eagle-Picher Industries, Inc. Stock Option Plan of 1990 will be
deemed terminated, cancelled, and of no further force and effect, and the
participants thereunder shall have no further rights thereunder.
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ARTICLE 9
RETENTION OF JURISDICTION
Pursuant to sections 105(a) and 1142 of the Bankruptcy Code, the
Bankruptcy Court shall retain and shall have exclusive jurisdiction over any
matter (a) arising under the Bankruptcy Code, (b) arising in or related to the
Chapter 11 Cases or the Plan, or (c) that relates to the following:
9.1 To interpret, enforce, and administer the terms of the Asbestos
and Lead PI Trust Agreement (including all annexes and exhibits thereto), the
Asbestos PD Trust Agreement (including all annexes and exhibits thereto), and
the restrictions on transfer of New Eagle-Picher Common Stock, Asbestos Personal
Injury Claims, Asbestos Property Damage Claims, and Lead Personal Injury Claims
contained in the Amended and Restated Articles of Incorporation and the
Confirmation Order.
9.2 To hear and determine any and all motions or applications
pending on the Confirmation Date for the assumption and/or assignment or
rejection of executory contracts or unexpired leases to which any of the Debtors
is a party or with respect to which any of the Debtors may be liable, and to
hear and determine any and all Claims resulting therefrom or from the expiration
or termination of any executory contract or unexpired lease prior to the
Confirmation Date;
9.3 To determine any and all adversary proceedings, applications,
motions, and contested or litigated matters that may be pending on the Effective
Date or that, pursuant to the Plan, may be instituted by any of the Reorganized
Debtors after the Effective Date, including, without express or implied
limitation, any claims to avoid any preferences, fraudulent transfers, or other
voidable transfers, or otherwise to recover assets for the benefit of the
Debtors' estates;
9.4 To hear and determine any objections to the allowance of Claims
arising prior to the Effective Date, whether filed, asserted, or made before or
after the Effective Date, including, without express or implied limitation, to
hear and determine any objections to the classification of any Claim and to
allow or disallow any Disputed Claim in whole or in part;
9.5 To issue such orders in aid of execution of the Plan to the
extent authorized or contemplated by section 1142 of the Bankruptcy Code;
9.6 To consider any modifications of the Plan, remedy any defect or
omission, or reconcile any inconsistency in any order of the Bankruptcy Court,
including, without express or implied limitation, the Confirmation Order;
9.7 To hear and determine all applications for allowances of
compensation and reimbursement of expenses of professionals under sections 330
and 331 of the Bankruptcy Code and any other fees and expenses authorized to be
paid or reimbursed under the Plan;
9.8 To hear and determine all controversies, suits, and disputes
that may relate to, impact upon, or arise in connection with the Plan (and all
Exhibits to the Plan) or its interpretation, implementation, enforcement, or
consummation;
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9.9 To the extent that Bankruptcy Court approval is required, to
consider and act on the compromise and settlement of any Claim or cause of
action by or against the Debtors' estates;
9.10 To determine such other matters that may be set forth in the
Plan, the Confirmation Order, the Claims Trading Injunction, or the Asbestos and
Lead PI Permanent Channeling Injunction, or that may arise in connection with
the Plan, the Confirmation Order, the Claims Trading Injunction, or the Asbestos
and Lead PI Permanent Channeling Injunction;
9.11 To hear and determine any proceeding that involves the
validity, application, construction, enforceability, or modification of the
Claims Trading Injunction or the Asbestos and Lead PI Permanent Channeling
Injunction or of the application of section 524(g) of the Bankruptcy Code to the
Asbestos and Lead PI Permanent Channeling Injunction.
9.12 To hear and determine matters concerning state, local, and
federal taxes, fines, penalties, or additions to taxes for which the Debtors or
Debtors in Possession may be liable, directly or indirectly, in accordance with
sections 346, 505, and 1146 of the Bankruptcy Code; and
9.13 To enter an order or final decree closing the Chapter 11 Cases.
To the extent that the Bankruptcy Court is not permitted under applicable law to
preside over any of the foregoing matters, the reference to the "Bankruptcy
Court" in this Article 9 shall be deemed to be replaced by the "District Court."
Notwithstanding anything in this Article 9 to the contrary, the allowance of
Asbestos Personal Injury Claims and Lead Personal Injury Claims (other than any
such Claims as to which the Reorganized Debtors prosecute objections pursuant to
section hereof) and the forum in which such allowance will be determined will be
governed by and in accordance with the procedures established by the Asbestos
and Lead PI Trust Agreement and the Trustees, and the allowance of Asbestos
Property Damage Claims (other than any such Claims as to which the Reorganized
Debtors prosecute objections pursuant to section 5.1 hereof) and the forum in
which such allowance will be determined will be governed by and in accordance
with the procedures established by the Asbestos PD Trust Agreement and the
trustees for the Asbestos PD Trust.
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ARTICLE 10
TRANSFERS OF PROPERTY TO AND ASSUMPTION OF
CERTAIN LIABILITIES BY THE PI TRUST
10.1 TRANSFER OF CERTAIN PROPERTY TO THE PI TRUST.
10.1.1 Transfer of Books and Records. On the Effective Date or
as soon thereafter as is practicable, the Reorganized Debtors shall transfer and
assign, or cause to be transferred and assigned, to the PI Trust the books and
records of the Debtors that pertain directly to Asbestos Personal Injury Claims
or Lead Personal Injury Claims that have been asserted against the Debtors
(except, in the case of Lead Personal Injury Claims, to the extent that any such
Lead Personal Injury Claims are the subject of an objection brought by any of
the Debtors and which the Reorganized Debtors prosecute in accordance with
section 5.1 hereof, in which case the books and records pertaining to such Lead
Personal Injury Claims will be transferred to the PI Trust as soon as
practicable after such objection has been resolved by a Final Order). The Plan
Proponents will request that the Bankruptcy Court, in the Confirmation Order,
rule that such transfer does not result in the destruction or waiver of any
applicable privileges pertaining to such books and records. If the Bankruptcy
Court does not so rule, at the option of the Plan Proponents, the Reorganized
Debtors will retain the books and records and enter into arrangements to permit
the PI Trust to have access to such books and records.
10.1.2 Transfer of Certain Insurance Rights. Certain rights to
insurance, to be agreed upon by the Plan Proponents (each in its sole
discretion), also will be transferred to the PI Trust on the Effective Date.
10.1.3 Transfer of Plan Consideration. On the Initial
Distribution Date, the Reorganized Debtors shall transfer and assign, or cause
to be transferred and assigned, to the PI Trust all right, title, and interest
in and to the Pro Rata Share with respect to the PI Trust Share of the
Distribution Value. Such Pro Rata Share shall be payable to the PI Trust in the
following consideration: (i) first, the Tax Refund Notes; (ii) second, ten
million (10,000,000) shares of New Eagle-Picher Common Stock, (iii) third, to
the extent that the value of consideration paid under (i) and (ii) of this
section 10.1.3 is less than such Pro Rata Share, the amount of Available Cash
remaining after making all Distributions required to be made to the holders of
Claims in Classes 19, 20, and 21 of the Plan on the Initial Distribution Date
less the amount of Available Cash that may be required to be paid to the holders
of Claims in Classes 19, 20, and 21 of the Plan if all Disputed Claims become
Allowed in the full Disputed Amount; (iv) fourth, if the value of consideration
paid under (i), (ii), and (iii) of this section 10.1.3 is less than such Pro
Rata Share, Senior Unsecured Sinking Fund Debentures in an aggregate principal
amount equal to the lesser of (a) the remaining amount of such Pro Rata Share
after payment of the consideration under (i), (ii), and (iii) of this section
10.1.3 and (b) the aggregate principal amount of Senior Unsecured Sinking Fund
Debentures remaining after making any Distribution required to be made to the
Asbestos PD Trust on the Initial Distribution Date less the aggregate amount of
Senior Unsecured Sinking Fund Debentures that may be required to be distributed
to the Asbestos PD Trust if all Disputed Claims are disallowed; and (v) fifth,
to the extent that the value of consideration paid under (i), (ii), (iii), and
(iv) of this section 10.1.3 is less than such Pro Rata Share, Divestiture Notes
in an aggregate principal amount equal to the lesser of (x) the remaining amount
of such Pro Rata Share after payment of the consideration under (i), (ii),
(iii), and (iv) of this section 10.1.3 and (y) the aggregate principal amount of
Divestiture Notes remaining after making all Distributions required to be made
to the holders of Claims in Classes 19, 20, and 21 of the Plan on the Initial
Distribution Date less the aggregate
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amount of Divesture Notes that may be required to be paid to the holders of
Claims in Classes 19, 20, and 21 of the Plan if all Disputed Claims become
Allowed in the full Disputed Amount. On the Final Distribution Date, the
Reorganized Debtors shall transfer and assign, or cause to be transferred and
assigned, to the PI Trust all right, title, and interest in and to the Available
Cash, Senior Unsecured Sinking Fund Debentures, Divestiture Notes, and shares of
New Eagle-Picher Common Stock remaining after making all other Distributions
required to be made under the Plan on the Final Distribution Date.
10.2 ASSUMPTION OF CERTAIN LIABILITIES BY THE PI TRUST. In
consideration for the property transferred to the PI Trust pursuant to section
10.1 hereof and in furtherance of the purposes of the PI Trust and the Plan, the
PI Trust shall assume all liability and responsibility for all Asbestos Personal
Injury Claims and Lead Personal Injury Claims, and the Reorganized Debtors shall
have no further financial or other responsibility or liability therefor.
10.3 CERTAIN PROPERTY HELD IN TRUST BY THE REORGANIZED DEBTORS. If
and to the extent that any property of the Reorganized Debtors specified in
section 10.1 hereof, under applicable law or any binding contractual provision,
cannot be effectively transferred and assigned to the PI Trust pursuant to
section 10.1 hereof, or if for any reason after the Effective Date the
Reorganized Debtors shall retain or receive any property that is owned by the
Reorganized Debtors or the Debtors (as the case may be) and is to be transferred
to the PI Trust pursuant to section 10.1 hereof, then the Reorganized Debtors
shall hold such property (and any proceeds thereof) in trust for the benefit of
the PI Trust and shall take such actions with respect to such property (and any
proceeds thereof) as the Trustees shall direct in writing. The Reorganized
Debtors shall provide to the Trustees reasonable access to the relevant books
and records of the Debtors and the Reorganized Debtors during normal business
hours for the purpose of assisting the Trustees in defending against the
Asbestos Personal Injury Claims and Lead Personal Injury Claims and otherwise
administering the PI Trust.
10.4 AUTHORITY OF THE DEBTORS. On the Confirmation Date, the Debtors
shall be empowered and authorized to take or cause to be taken, prior to the
Effective Date, all actions necessary to enable them to implement effectively
the provisions of the Plan and the PI Trust Agreement.
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ARTICLE 11
TRANSFERS OF PROPERTY TO AND ASSUMPTION OF
CERTAIN LIABILITIES BY THE ASBESTOS PD TRUST
11.1 TRANSFER OF CERTAIN PROPERTY TO THE ASBESTOS PD TRUST. On the
Effective Date or as soon thereafter as is practicable, the Reorganized Debtors
shall transfer and assign, or cause to be transferred and assigned, to the
Asbestos PD Trust the books and records of the Debtors that pertain directly to
Asbestos Property Damage Claims that have been asserted against the Debtors
(except to the extent that any Asbestos Property Damage Claims are the subject
of an objection brought by any of the Debtors and which the Reorganized Debtors
prosecute in accordance with section 5.1 hereof, in which case the books and
records pertaining to such Asbestos Property Damage Claims will be transferred
to the Asbestos PD Trust as soon as practicable after such objection has been
resolved by a Final Order). The Plan Proponents will request that the Bankruptcy
Court, in the Confirmation Order, rule that such transfer does not result in the
destruction or waiver of any applicable privileges pertaining to such books and
records. If the Bankruptcy Court does not so rule, at the option of the Plan
Proponents, the Reorganized Debtors will retain the books and records and enter
into arrangements to permit the Asbestos PD Trust to have access to such books
and records. If Class 16 votes to accept the Plan, then, on the Effective Date,
the Reorganized Debtors shall transfer and assign, or cause to be transferred
and assigned, to the Asbestos PD Trust the Asbestos PD Trust Funding Obligation.
If Class 16 votes to reject the Plan, then, on the Initial Distribution Date and
the Final Distribution Date, the Reorganized Debtors shall transfer and assign,
or cause to be transferred and assigned, to the Asbestos PD Trust all right,
title, and interest in and to the Pro Rata Share of the Asbestos PD Trust of the
Distribution Value by the transfer to the Asbestos PD Trust of Senior Unsecured
Sinking Fund Debentures in the aggregate principal amount equal to such Pro Rata
Share of the Distribution Value less the aggregate principal amount of Senior
Unsecured Sinking Fund Debentures previously transferred to the Asbestos PD
Trust in any Distribution made prior thereto.
11.2 ASSUMPTION OF CERTAIN LIABILITIES BY THE ASBESTOS PD TRUST. In
consideration for the property transferred to the Asbestos PD Trust pursuant to
section 11.1 hereof and in furtherance of the purposes of the Asbestos PD Trust
and the Plan, the Asbestos PD Trust shall assume all liability and
responsibility for all Asbestos Property Damage Claims, and the Reorganized
Debtors shall have no further financial or other responsibility or liability
therefor.
11.3 CERTAIN PROPERTY HELD IN TRUST BY THE REORGANIZED DEBTORS. If
and to the extent that any property of the Reorganized Debtors specified in
section 11.1 hereof, under applicable law or any binding contractual provision,
cannot be effectively transferred and assigned to the Asbestos PD Trust pursuant
to section hereof, or if for any reason after the Effective Date the Reorganized
Debtors shall retain or receive any property that is owned by the Reorganized
Debtors or the Debtors (as the case may be) and is to be transferred to the
Asbestos PD Trust pursuant to section 11.1 hereof, then the Reorganized Debtors
shall hold such property (and any proceeds thereof) in trust for the benefit of
the Asbestos PD Trust and shall take such actions with respect to such property
(and any proceeds thereof) as the trustees of the Asbestos PD Trust shall direct
in writing. The Reorganized Debtors shall provide to the trustees of the
Asbestos PD Trust reasonable access to the relevant books and records of the
Debtors and the Reorganized Debtors during normal business hours for the purpose
of assisting the trustees of the Asbestos PD Trust in defending against the
Asbestos Property Damage Claims and otherwise administering the Asbestos PD
Trust.
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11.4 AUTHORITY OF THE DEBTORS. On the Confirmation Date, the Debtors
shall be empowered and authorized to take or cause to be taken, prior to the
Effective Date, all actions necessary to enable them to implement effectively
the provisions of the Plan and the Asbestos PD Trust Agreement.
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ARTICLE 12
MISCELLANEOUS PROVISIONS
12.1 PAYMENT OF STATUTORY FEES. All fees payable pursuant to section
1930 of title 28 of the United States Code, as determined by the Bankruptcy
Court at the hearing on confirmation of the Plan, shall be paid by the Debtors
on or before the Effective Date.
12.2 DISCHARGE OF THE DEBTORS. The rights afforded in the Plan and
the treatment of all Claims and Equity Interests herein shall be in exchange for
and in complete satisfaction, discharge, and release of all Claims and Equity
Interests of any nature whatsoever, including any interest accrued thereon from
and after the Petition Date, against the Debtors and the Debtors in Possession,
or any of their estates, assets, properties, or interests in property. Except as
otherwise provided herein, on the Effective Date, all Claims against and Equity
Interests in the Debtors and the Debtors in Possession shall be satisfied,
discharged, and released in full. The Reorganized Debtors shall not be
responsible for any obligations of the Debtors or the Debtors in Possession
except those expressly assumed by the Reorganized Debtors in the Plan. All
Entities shall be precluded and forever barred from asserting against the
Debtors, the Reorganized Debtors, their respective successors or assigns, or
their assets, properties, or interests in property any other or further Claims
based upon any act or omission, transaction, or other activity of any kind or
nature that occurred prior to the Effective Date, whether or not the facts of or
legal bases therefor were known or existed prior to the Effective Date.
12.3 RIGHTS OF ACTION. Any rights, claims, or causes of action
accruing to the Debtors or Debtors in Possession pursuant to the Bankruptcy Code
or pursuant to any statute or legal theory, including, without express or
implied limitation, any avoidance or recovery actions under sections 544, 545,
547, 548, 549, 550, 551, and 553 of the Bankruptcy Code and any rights to,
claims, or causes of action for recovery under any policies of insurance issued
to or on behalf of any of the Debtors or Debtors in Possession shall remain
assets of the Debtors' estates and, on the Effective Date, shall be transferred
to the Reorganized Debtors. The Reorganized Debtors shall be deemed the
appointed representative to, and may, pursue, litigate, and compromise and
settle any such rights, claims, or causes of action, as appropriate, in
accordance with what is in the best interests of and for the benefit of the
Reorganized Debtors.
12.4 THIRD PARTY AGREEMENTS. The Distributions to the various
classes of Claims hereunder shall not affect the right of any Entity to levy,
garnish, attach, or employ any other legal process with respect to such
Distributions by reason of any claimed subordination rights or otherwise. All of
such rights and any agreements relating thereto shall remain in full force and
effect.
12.5 DISSOLUTION OF COMMITTEES. On the Effective Date, the Future
Claimants' Representative, the Injury Claimants' Committee, the Unsecured
Creditors' Committee, and the Equity Security Holders' Committee shall thereupon
be released and discharged of and from all further authority, duties,
responsibilities, and obligations relating to and arising from and in connection
with the Chapter 11 Cases, and all such committees shall be deemed dissolved and
the Future Claimants' Representative's appointment terminated; provided,
however, that, in the event that the Effective Date occurs prior to the
Confirmation Order becoming a Final Order, the Unsecured Creditors' Committee,
Future Claimants' Representative, and the Injury Claimants' Committee may, at
their option, continue to serve and function for the sole purpose of
participating in any appeal of the Confirmation Order until such time as the
Confirmation Order becomes a Final Order.
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12.6 EXCULPATION. None of the Reorganized Debtors, any of the Plan
Proponents, or any of their officers, directors, employees, or agents shall have
or incur any liability to any Entity for any act or omission in connection with
or arising out of the pursuit of confirmation of the Plan, the consummation of
the Plan, or the administration of the Plan or the property to be distributed
under the Plan, except for gross negligence or willful misconduct, and in all
respects shall be entitled to rely upon the advice of counsel with respect to
their duties and responsibilities under the Plan.
12.7 TITLE TO ASSETS; DISCHARGE OF LIABILITIES. Except as otherwise
provided in the Plan, on the Effective Date, title to all assets and properties
and interests in property dealt with by the Plan shall vest in the Reorganized
Debtors free and clear of all Claims, Equity Interests, Encumbrances, and other
interests, and the Confirmation Order shall be a judicial determination of
discharge of the liabilities of the Debtors, except as provided in the Plan.
12.8 SURRENDER AND CANCELLATION OF INSTRUMENTS. In addition to the
provisions of section hereof, each holder of a promissory note or other
instrument evidencing a Claim shall surrender such promissory note or instrument
to the Reorganized Debtors, and the Reorganized Debtors shall distribute or
cause to be distributed to the holder thereof the appropriate Distribution
hereunder. At the option of the Reorganized Debtors (in their sole and absolute
discretion), no Distribution hereunder shall be made to or on behalf of any
holder of such Claim unless and until such promissory note or instrument is
received or the unavailability of such note or instrument is reasonably
established to the satisfaction of the Reorganized Debtors. In accordance with
section 1143 of the Bankruptcy Code, any such holder of such a Claim that fails
to surrender or cause to be surrendered such promissory note or instrument or to
execute and deliver an affidavit of loss and indemnity reasonably satisfactory
to the Reorganized Debtors and, in the event that the Reorganized Debtors
request, furnish a bond in form and substance (including, without limitation,
amount) reasonably satisfactory to the Reorganized Debtors within the Retention
Period shall be deemed to have forfeited all rights, claims, and interests and
shall not participate in any Distribution hereunder.
12.9 NOTICES. Any notices, requests, and demands required or
permitted to be provided under the Plan, in order to be effective, shall be in
writing (including, without express or implied limitation, by facsimile
transmission), 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:
If to the Debtors: Eagle-Picher Industries, Inc.
Attention: General Counsel
IF BY HAND OR OVERNIGHT DELIVERY:
580 Building
580 Walnut Street
Suite 1300
Cincinnati, Ohio 45202
A-53
IF BY MAIL:
Post Office Box 779
Cincinnati, Ohio 45201
Telecopier: (513) 721-3404
Telephone Confirmation: (513) 629-2400
and
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attention: Stephen Karotkin, Esq.
Telecopier: (212) 310-8007
Telephone Confirmation: (212) 310-8888
and
Frost & Jacobs
2500 PNC Center
201 East Fifth Street
Cincinnati, Ohio 45202-4182
Attention: Edmund J. Adams, Esq.
Telecopier: (513) 651-6981
Telephone Confirmation: (513) 651-6800
If to the Injury
Claimants'
Committee: Robert E. Sweeney, Esq.
Robert E. Sweeney Co., L.P.A.
Suite 1500, Illuminating Building
55 Public Square
Cleveland, Ohio 44113
Telecopier: (216) 696-0732
Telephone Confirmation: (216) 696-0606
and
Keating, Muething & Klekamp
1800 Provident Tower
One East Fourth Street
Cincinnati, Ohio 45202
Attention: Kevin E. Irwin, Esq.
Telecopier: (513) 579-6457
Telephone Confirmation: (513) 579-6400
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If to the Future
Representative: James J. G. McMonagle, Esq.
24 Walnut
Chagrin Falls, Ohio 44022
Telecopier: (216) 696-1210
Telephone Confirmation: (216) 696-1422
and
McCarthy, Lebit, Crystal & Haiman Co., LPA
1800 Midland Building
101 Prospect Avenue, West
Cleveland, Ohio 44115
Attention: Robert S. Balantzow, Esq.
Telecopier: (216) 696-1210
Telephone Confirmation: (216) 696-1422
12.10 HEADINGS. The headings used in the Plan are inserted for
convenience only and neither constitute a portion of the Plan nor in any manner
affect the construction of the provisions of the Plan.
12.11 SEVERABILITY. At the unanimous option of the Plan Proponents
acting in their sole discretion, any provision of the Plan, the Claims Trading
Injunction, the Confirmation Order, the Asbestos and Lead PI Permanent
Channeling Injunction, or any of the Exhibits to the Plan that is prohibited,
unenforceable, or invalid shall, as to any jurisdiction in which such provision
is prohibited, unenforceable, or invalidated, be ineffective to the extent of
such prohibition, unenforceability, or invalidation without invalidating the
remaining provisions of the Plan, the Claims Trading Injunction, the
Confirmation Order, the Asbestos and Lead PI Permanent Channeling Injunction,
and the Exhibits to the Plan or affecting the validity or enforceability of such
provisions in any other jurisdiction.
12.12 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 Ohio, without giving effect to the conflicts of laws principles
thereof, shall govern the construction of the Plan and any agreements,
documents, and instruments executed in connection with the Plan, except as
otherwise expressly provided in such instruments, agreements or documents.
12.13 FILING OF ADDITIONAL DOCUMENTS. On or before the Effective
Date, the Debtors shall file with the Bankruptcy Court such agreements and other
documents as may be necessary or appropriate to effectuate and further evidence
the terms and conditions of the Plan.
12.14 COMPLIANCE WITH TAX REQUIREMENTS. In connection with the Plan,
the Debtors will comply with all withholding and reporting requirements imposed
by federal, state and local taxing authorities, and all distributions hereunder
shall be subject to such withholding and reporting requirements.
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12.15 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 express or
implied limitation, the liens and security interests provided under the
reorganized credit facility referenced in section 7.9.0.10 hereof, shall not be
subject to any stamp, real estate transfer, mortgage recording, or other similar
tax.
Dated: Cincinnati, Ohio
August 28, 1996
Respectfully submitted,
EAGLE-PICHER INDUSTRIES, INC.
By: /s/ THOMAS E. PETRY
-----------------------------------------
Name: Thomas E. Petry
Title: Chairman of the Board and Chief
Executive Officer
DAISY PARTS, INC.
By: /s/ JAMES A. RALSTON
-----------------------------------------
Name: James A. Ralston
Title: Secretary
TRANSICOIL INC.
By: /s/ JAMES A. RALSTON
-----------------------------------------
Name: James A. Ralston
Title: Assistant Secretary
MICHIGAN AUTOMOTIVE RESEARCH
CORPORATION
By: /s/ JAMES A. RALSTON
-----------------------------------------
Name: James A. Ralston
Title: Assistant Secretary
A-56
EDI, INC.
By: /s/ JAMES A. RALSTON
-----------------------------------------
Name: James A. Ralston
Title: Assistant Secretary
EAGLE-PICHER MINERALS, INC.
By: /s/ JAMES A. RALSTON
-----------------------------------------
Name: James A. Ralston
Title: Secretary
HILLSDALE TOOL & MANUFACTURING CO.
By: /s/ JAMES A. RALSTON
-----------------------------------------
Name: James A. Ralston
Title: Secretary
WEIL, GOTSHAL & MANGES LLP
Co-Attorneys for Eagle-Picher
Industries, Inc., et al.
Chapter 11 Debtors in Possession
767 Fifth Avenue
New York, New York 10153
(212) 310-8000
and
FROST & JACOBS
Co-Attorneys for Eagle-Picher
Industries, Inc., et al.
Chapter 11 Debtors in Possession
2500 PNC Center
201 East Fifth Street
Cincinnati, Ohio 45202-4182
(513) 651-6800
A-57
JAMES J.G. McMONAGLE,
THE FUTURE CLAIMANTS'
REPRESENTATIVE
/s/ JAMES J.G. McMONAGLE
--------------------------------------------
McCarthy, Lebit, Crystal &
Haiman Co., LPA
Attorneys for the Future
Claimants' Representative
1800 Midland Building
101 Prospect Avenue, West
Cleveland, Ohio 44115
(216) 696-1422
THE INJURY CLAIMANTS' COMMITTEE
By: /s/ ROBERT E. SWEENEY
-----------------------------------------
Name: Robert E. Sweeney
Title: Chairperson
Keating, Muething & Klekamp
Attorneys for the Injury
Claimants' Committee
1800 Provident Tower
One East Fourth Street
P.O. Box 1800
Cincinnati, Ohio 45202
(513) 579-6400