Exhibit 99.1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re ) Chapter 11
)
UNITEL VIDEO, INC., UNITEL 53 LLC, ) Case No. 99-2979 (PJW)
UNITEL 57 LLC, and R SQUARED, INC., )
) Jointly Administered
Debtors. )
DEBTORS' FIRST AMENDED JOINT CONSOLIDATED
LIQUIDATING PLAN OF REORGANIZATION
KAYE SCHOLER LLP YOUNG CONAWAY STARGATT &
Andrew A. Kress (AK 8985) TAYLOR, LLP
Benjamin Mintz (BM 6060) Robert S. Brady (No. 2847)
425 Park Avenue Michael R. Nestor (No. 3526)
New York, New York 10022-3598 1100 North Market Street
(212) 836-8000 Rodney Square North, 11th Floor
P.O. Box 391
Wilmington, Delaware 19899
(302) 571-6600
Co-Counsel for the Debtors and
Debtors in Possession
August 29, 2001
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND INTERPRETATIONS.................................................... 6
1.1 Administrative Bar Date................................................ 6
1.2 Administrative Claim................................................... 6
1.3 Allowed or Allowed Amount ............................................. 6
1.4 Allowed Claim, Allowed [ ] Claim or [ ] Allowed Claim .......... 7
1.5 Assets................................................................. 7
1.6 Available Cash......................................................... 7
1.7 Avoidance Actions...................................................... 7
1.8 Bankruptcy Code........................................................ 7
1.9 Bankruptcy Court....................................................... 8
1.10 Bankruptcy Rules....................................................... 8
1.11 Bar Date............................................................... 8
1.12 Business Day........................................................... 8
1.13 Cash................................................................... 8
1.14 Cases.................................................................. 8
1.15 Causes of Action....................................................... 8
1.16 Claim.................................................................. 8
1.17 Claims Objection Bar Date.............................................. 8
1.18 Class.................................................................. 8
1.19 Committee.............................................................. 9
1.20 Common Stock........................................................... 9
1.21 Confirmation........................................................... 9
1.22 Confirmation Date...................................................... 9
1.23 Confirmation Hearing................................................... 9
1.24 Confirmation Order..................................................... 9
1.25 Creditor............................................................... 9
1.26 Debtors................................................................ 9
1.27 Deficiency Amount...................................................... 9
1.28 Deficiency Claim....................................................... 9
1.29 DIP Financing.......................................................... 9
1.30 Disallowed............................................................. 10
1.31 Disbursing Agent....................................................... 10
1.32 Disputed Claim......................................................... 10
1.33 Disputed Claims Reserve................................................ 10
1.34 Effective Date......................................................... 10
1.35 Excess Available Cash.................................................. 10
1.36 Excess Disputed Claims Reserve Cash.................................... 10
1.37 Excess Operating Reserve Cash.......................................... 10
1.38 Excess Senior Claim Reserve Cash....................................... 10
1.39 Fee Claims............................................................. 11
1.40 File, Filed or Filing.................................................. 11
1.41 Filing Date............................................................ 11
1.42 Final Distribution..................................................... 11
1.43 Final Distribution Date................................................ 11
1.44 Final Order............................................................ 11
1.45 General Unsecured Claim................................................ 11
1.46 Governmental Unit...................................................... 11
1.47 Heller................................................................. 12
1.48 Heller Disgorgement Amount............................................. 12
1.49 Holder................................................................. 12
1.51 Intercompany Claims.................................................... 12
1.52 Interest............................................................... 12
1.53 Lien................................................................... 12
1.54 Liquidating Debtor..................................................... 12
1.55 Old Interests ......................................................... 12
1.56 Operating Reserve...................................................... 12
1.57 Person................................................................. 12
1.58 Plan................................................................... 12
1.59 Plan Administrator .................................................... 13
1.60 Pre-Petition Credit Agreement.......................................... 13
1.61 Priority Claim......................................................... 13
1.62 Priority Tax Claim..................................................... 13
1.63 Professional Person.................................................... 13
1.64 Pro Rata............................................................... 13
1.65 R Squared.............................................................. 13
1.66 R Squared Common Stock................................................. 13
1.67 Schedules.............................................................. 13
1.68 Secured Claim.......................................................... 13
1.69 Senior Claim Reserve................................................... 14
1.71 Settlement Stipulations................................................ 14
1.72 Subsidiary Interests .................................................. 14
1.73 Substantive Consolidation Order........................................ 14
1.74 Unitel................................................................. 14
1.75 Unitel 53 ............................................................. 14
1.76 Unitel 53 Membership Interests......................................... 14
1.77 Unitel 57 ............................................................. 14
1.78 Unitel 57 Membership Interests......................................... 15
ARTICLE II
LIQUIDATION OF THE DEBTORS......................................................... 15
2
ARTICLE III
CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS...................................... 15
3.1 Class 1 - Administrative Claims....................................... 15
3.2 Class 2 - Priority Claims............................................. 15
3.3 Class 3 - Priority Tax Claims......................................... 15
3.4 Class 4 - Miscellaneous Secured Claims................................ 15
3.5 Class 5 - General Unsecured Claims.................................... 15
3.6 Class 6 - Common Stock................................................ 15
3.7 Class 7 - Subsidiary Interests........................................ 15
ARTICLE IV
TREATMENT OF CLASSES OF CLAIMS AND INTERESTS...................................... 16
4.1 Administrative Claims (Class 1)....................................... 16
4.2 Priority Claims (Class 2)............................................. 16
4.3 Priority Tax Claims (Class 3)......................................... 16
4.4 Miscellaneous Secured Claims (Class 4)................................ 17
4.5 General Unsecured Claims (Class 5).................................... 17
4.6 Common Stock (Class 6)................................................ 17
4.7 Subsidiary Interests (Class 7)........................................ 18
ARTICLE V
MEANS FOR IMPLEMENTATION AND EXECUTION OF THIS PLAN............................... 18
5.1 Corporate Governance.................................................. 18
5.2 Investments........................................................... 18
5.3 Indemnification....................................................... 18
5.4 Operating Reserve..................................................... 18
A. Creation of Operating Reserve.................................. 18
B. Maintenance of Operating Reserve............................... 19
C. Reporting...................................................... 19
D. Supplementing of Operating Reserve............................. 19
E. Excess Operating Reserve Cash.................................. 19
5.5 Distribution of Available Cash........................................ 19
5.6 Preservation of Debtors' Causes of Actions............................ 19
5.7 Professional Fees and Expenses........................................ 20
5.8 Dissolution of Debtors................................................ 20
ARTICLE VI
CLAIMS; DISTRIBUTIONS............................................................. 20
6.1 Objections to Claims.................................................. 20
6.2 Amendments to Claims.................................................. 20
3
6.3 Funding of the Plan................................................... 21
6.4 Distributions of Cash................................................. 21
A. Distribution to Senior Claims.................................. 21
B. Initial Distribution to Allowed Class 5 Claims. .............. 21
C. Interim Distributions to Allowed Class 5 Claims................ 21
D. Final Distribution to Allowed Class 5 Claims................... 21
E. Fee Claims..................................................... 21
6.5 No Distributions to Holders of Disputed Claims........................ 22
6.6 Establishment of Disputed Claims Reserve.............................. 22
6.7 Establishment of Senior Claims Reserve................................ 22
6.8 Subsequent Allowance or Disallowance of Disputed Claims/Cash
Distributions................................................. 22
6.9 Setoffs............................................................... 23
6.10 Delivery of Distributions............................................. 23
6.11 Resolution of Disputed Claims........................................ 23
ARTICLE VII
SUBSTANTIVE CONSOLIDATION......................................................... 24
ARTICLE VIII
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES............................. 24
8.1 Rejection............................................................. 24
8.2 Claims for Rejection Damages.......................................... 24
ARTICLE IX
RETENTION OF JURISDICTION......................................................... 25
ARTICLE X
CONDITIONS PRECEDENT TO CONFIRMATION AND EFFECTIVENESS............................ 26
10.1 Conditions Precedent to Confirmation.................................. 26
10.2 Conditions Precedent to the Effective Date............................ 26
10.3 Waiver of Conditions to Confirmation of the Plan and Effective
Date.................................................... 27
ARTICLE XI
EFFECTS OF CONFIRMATION........................................................... 27
11.1 Binding Effect........................................................ 27
11.2 Vesting of Property................................................... 27
11.3 Releases.............................................................. 27
11.4 Injunction............................................................ 28
4
ARTICLE XII
MISCELLANEOUS PROVISIONS.......................................................... 29
12.1 Notices............................................................... 29
12.2 Section Headings...................................................... 30
12.3 Construction.......................................................... 30
12.4 Amendments............................................................ 30
12.5 Effect of Withdrawal or Revocation.................................... 30
12.6 No Interest........................................................... 31
12.7 Severability.......................................................... 31
12.8 Governing Law......................................................... 31
12.9 Post-Effective Date Professional Fees................................. 31
12.10 Dissolution of Committee.............................................. 31
12.11 Successors and Assigns................................................ 32
12.12 Transactions on Business Days......................................... 32
5
Unitel Video, Inc., Unitel 53 LLC, Unitel 57 LLC and R Squared, Inc.,
debtors and debtors in possession in the above-captioned chapter 11 cases,
hereby propose the following first amended joint consolidated liquidating plan
of reorganization pursuant to the provisions of section 1121(a) of title 11 of
the United States Code.
1
DEFINITIONS AND INTERPRETATIONS
Unless the context otherwise requires, any capitalized term used herein
and not defined in this Plan but that is defined in the Bankruptcy Code or
Bankruptcy Rules, shall have the meaning set forth therein. Wherever the context
is 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" and "hereunder" and others of
similar import refer to this Plan as a whole and not to any particular section,
subsection or clause contained in this Plan. The word "including" shall mean
including, without limitation.
As used in this Plan, the following terms shall have the respective
meanings specified below:
1.1 Administrative Bar Date means July 11, 2001, as fixed by Final Order
as the last date for the Filing of certain Administrative Claims
arising or accruing between the Filing Date and April 23, 2001, or
requests for payment of such Administrative Claims.
1.2 Administrative Claim means: any Claim for costs and expenses of
administration asserted or arising between the Filing Date and the
Confirmation Date under section 503(b) or 507(a)(1) of the
Bankruptcy Code, including, without limitation, (a) any Claim given
the status of an Administrative Claim by Final Order of the
Bankruptcy Court; (b) any fees due under 28 U.S.C. Section 1930; and
(c) any Fee Claims.
1.3 Allowed or Allowed Amount means:
(1) with respect to any Administrative Claim, all or that portion
of an Administrative Claim which either: (i) has been allowed
by a Final Order; (ii)(A) was incurred by the Debtors'
subsequent to April 23, 2001 and (B) has been allowed in any
stipulation or other agreement between the Debtors and the
Holder of such Administrative Claim; or (iii)(A) was incurred
by the Debtors in the ordinary course of business during these
Cases to the extent due and owing without defense, offset or
counterclaim of any kind, and (B) proof of which was timely
Filed by the Administrative Bar Date or deemed timely Filed
under applicable law or by Final Order of the Bankruptcy
Court, pursuant to the Bankruptcy Code, Bankruptcy Rules or
applicable law, or Filed late, with Bankruptcy Court
6
leave pursuant to a Final Order, and either (x) is not
objected to prior to the applicable Claims Objection Bar Date
and is not a Disputed Claim, or (y) is allowed by a Final
Order.
(2) with respect to any Claim (other than an Administrative
Claim), all or that portion of a Claim against the Debtors to
the extent such Claim is either (i) listed by the Debtors in
the Schedules in an amount other than zero and as being not
contingent, unliquidated, disputed or undetermined, to the
extent that it is not otherwise a Disputed Claim; or (ii)
represented by a proof of Claim which has been timely Filed by
the Bar Date, or deemed timely Filed under applicable law or
by Final Order of the Bankruptcy Court, pursuant to the
Bankruptcy Code, Bankruptcy Rules or applicable law, or Filed
late, with Bankruptcy Court leave pursuant to a Final Order
and either (A) is not objected to prior to the applicable
Claims Objection Bar Date and is not otherwise a Disputed
Claim, or (B) is otherwise allowed by a Final Order.
1.4 Allowed Claim, Allowed [ ] Claim or [ ] Allowed Claim means any
Claim for which an Allowed Amount has been determined.
1.5 Assets means: (a) all assets, property, interests (including equity
interests) and effects, real and personal, tangible and intangible,
wherever situated, of the Debtors as of the Confirmation Date,
including but not limited to all Cash, real property interests,
fixtures, equipment, furniture, other tangible property, accounts
receivable, tax refunds, contract rights, insurance proceeds, other
intangible property, Causes of Action, Avoidance Actions claims, and
rights of any kind of the Debtors; and (b) the proceeds, products,
rents, and profits of all of the foregoing.
1.6 Available Cash means all Cash of the Debtors as of the Effective
Date (including, without limitation, the Heller Disgorgement
Amount), less the amount of Cash: (a) to be distributed on the
Effective Date to Holders of Allowed Administrative Claims, Allowed
Priority Claims, Allowed Priority Tax Claims and Allowed
Miscellaneous Secured Claims; (b) to be deposited in the Operating
Reserve; (c) to be deposited in the Senior Claim Reserve; and (d) to
be deposited in the Disputed Claims Reserve.
1.7 Avoidance Actions means all Causes of Action arising under sections
510(c), 544, 547, 548, 549 or 550 of the Bankruptcy Code.
1.8 Bankruptcy Code means the Bankruptcy Reform Act of 1978, as amended,
and codified at title 11 of the United States Code as in effect on
the Filing Date, together with all amendments, modifications and
replacements as the same exist upon any relevant date to the extent
applicable to these Cases.
7
1.9 Bankruptcy Court means the United States Bankruptcy Court for the
District of Delaware, the court which has been exercising
jurisdiction over these Cases.
1.10 Bankruptcy Rules means the Federal Rules of Bankruptcy Procedure, as
they may be amended, as prescribed by the United States Supreme
Court pursuant to 28 U.S.C.Section 2075, and the local rules, as
they may be amended, of the Bankruptcy Court, as applicable to the
Cases.
1.11 Bar Date means February 7, 2000 or July 21, 2000, as the case may
be, as fixed by Final Orders pursuant to Rule 3003(c)(3) of the
Bankruptcy Rules as the last date for the Filing of Claims against
the Debtors, other than Administrative Claims, or such other date as
may apply to a particular Claim pursuant to Final Order of the
Bankruptcy Court.
1.12 Business Day means any day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or
required by law to close.
1.13 Cash means cash, cash equivalents and other readily marketable
securities or instruments, including, without limitation, direct
obligations of the United States of America and certificates of
deposit issued by federally-insured banks.
1.14 Cases means the Debtors' cases pending in the Bankruptcy Court
pursuant to chapter 11 of the Bankruptcy Code under the case numbers
99-2979, 99-2980, 99-2981 and 99-2982.
1.15 Causes of Action means all actions, causes of action, liabilities,
suits, debts, indebtedness (for borrowed money or in the nature of a
guarantee), dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, trespasses, damages, rights, executions,
claims, objections to Claims, judgments and demands whatsoever,
whether known or unknown, choate or inchoate, suspected or
unsuspected, in law, equity or otherwise.
1.16 Claim means a claim, as that term is defined in section 101(5) of
the Bankruptcy Code, against any of the Debtors.
1.17 Claims Objection Bar Date means for all Claims, the latest of: (a)
90 days after the Effective Date; (b) 60 days after the Filing of a
proof of Claim; and (c) such other period of limitations for
objecting to a Claim as may be specifically fixed by the Plan, the
Confirmation Order, the Bankruptcy Rules or an order of the
Bankruptcy Court entered at any time in these Cases.
1.18 Class means any group of Holders of Claims or Interests as
established in accordance with section 1122 of the Bankruptcy Code
and set forth in Article III of the Plan.
8
1.19 Committee means the Official Committee of Unsecured Creditors in
these Cases appointed and acting in the Cases pursuant to section
1102 of the Bankruptcy Code, as the same may be reconstituted from
time to time.
1.20 Common Stock means the common stock, par value $.01 per share, of
Unitel.
1.21 Confirmation means the Bankruptcy Court's confirmation of this Plan,
represented by the signing of the Confirmation Order by the
Bankruptcy Court.
1.22 Confirmation Date means the date on which the Clerk of the
Bankruptcy Court enters the Confirmation Order on the legal docket
maintained by said Clerk's office in the Cases.
1.23 Confirmation Hearing means the hearing held by the Bankruptcy Court,
as it may be continued from time to time, at which the Debtors shall
seek confirmation of this Plan.
1.24 Confirmation Order means the order of the Bankruptcy Court
confirming this Plan pursuant to section 1129 of the Bankruptcy Code
and approving and authorizing the implementation of the transactions
contemplated herein, as such order may be amended, modified or
supplemented.
1.25 Creditor means any Person that is the Holder of a Claim against any
of the Debtors.
1.26 Debtors means Unitel, Unitel 53, Unitel 57 and R Squared, as debtors
and debtors in possession in these Cases.
1.27 Deficiency Amount means the amount by which a Claim exceeds the sum
of (a) any setoff rights of the Holder of such Claim against the
Debtors under sections 506 and 553 of the Bankruptcy Code, plus (ii)
the net proceeds realized from the disposition of any collateral
securing such Claim, or, if such collateral is not liquidated to
Cash, the value of the interest of the Holder of the Claim in the
Debtors' interests in any collateral securing such Claim as
determined by the Bankruptcy Court under section 506 of the
Bankruptcy Code; provided, that if the Holder of such Claim makes
the election provided in section 1111(b) of the Bankruptcy Code,
there shall be no Deficiency Amount in respect of such Claim.
1.28 Deficiency Claim means any General Unsecured Claim representing a
Deficiency Amount.
1.29 DIP Financing means the postpetition financing made available to the
Debtors by Heller pursuant to, inter alia, that certain Stipulation
and Order Extending DIP Facility Previously Approved by the Court
dated March 3, 2000, as subsequently
9
extended, clarified, supplemented or modified, together with any
prior orders relating thereto.
1.30 Disallowed Claim or Disallowed means a Claim to the extent it has
been disallowed by Final Order.
1.31 Disbursing Agent means the Plan Administrator or its designee.
1.32 Disputed Claim means any Claim or any portion thereof for which no
Allowed Amount has been established and (a) which is listed in the
Schedules as disputed, contingent or unliquidated; or (b) as to
which (i) a proof of Claim has been Filed, (ii) an objection to the
allowance thereof has been Filed by the Debtors or any other party
in interest prior to the applicable Claims Objection Bar Date (and
not withdrawn) and (iii) no Final Order has Allowed or Disallowed
such Claim or portion thereof. In the event that any part of a Claim
is disputed, such Claim in its entirety shall be deemed a Disputed
Claim for purposes of distribution under this Plan unless the
Debtors or the Liquidating Debtors, as the case may be, and the
Holder of such Disputed Claim agree otherwise.
1.33 Disputed Claims Reserve means the reserve of Cash to be established
and maintained by the Liquidating Debtor in a segregated,
interest-bearing account into which the Liquidating Debtor will
deposit Cash allocated for distribution to the Holders of Disputed
Claims in Class 5 (General Unsecured Claims), if and when any such
Claims become Allowed Claims, as set forth more fully in Sections
6.6 and 6.8 of the Plan.
1.34 Effective Date means the First Business Day after the conditions
specified in Section 10.2 hereof have been satisfied or waived.
1.35 Excess Available Cash means Cash in an amount equal to the sum of:
(a) undistributed Available Cash; (b) Excess Operating Reserve Cash;
(c) Excess Senior Claim Reserve Cash; (d) Excess Disputed Claims
Reserve Cash; (e) returned Cash distributions pursuant to Section
6.10 of this Plan; and (f) Cash proceeds of Causes of Action and
other Assets received by the Liquidating Debtor after the Effective
Date.
1.36 Excess Disputed Claims Reserve Cash means the amount of Cash, if
any, remaining in the Disputed Claims Reserve after all Disputed
Class 5 Claims have been either Disallowed or Allowed.
1.37 Excess Operating Reserve Cash means the amount of Cash, if any,
remaining in the Operating Reserve as of the Final Distribution
Date.
1.38 Excess Senior Claim Reserve Cash means Cash, if any, remaining in
the Senior Claim Reserve after payment in full of all Allowed Class
1 Claims, Allowed
10
Class 2 Claims, Allowed Class 3 Claims, and Allowed Class 4 Claims
and after all Disputed Class 1, Class 2, Class 3 and Class 4 Claims
have been either Disallowed or Allowed.
1.39 Fee Claims means a Claim for compensation for services rendered
prior to the Effective Date or reimbursement of expenses pursuant to
sections 327, 328, 330, 331 or 503(b) of the Bankruptcy Code made
pursuant to an application submitted to the Bankruptcy Court in
these Cases.
1.40 File, Filed or Filing means the act represented by the delivery to,
receipt by and entry upon the legal docket or claims docket of the
Cases by the Clerk of the Bankruptcy Court or such other party as
the Bankruptcy Court may direct pursuant to a Final Order.
1.41 Filing Date means September 2, 1999, the date on which the Cases
were commenced.
1.42 Final Distribution means the distribution of Excess Available Cash
to Holders of Class 5 Allowed Claims on the Final Distribution Date.
1.43 Final Distribution Date means the third Business Day after the later
of: (a) the date upon which all Assets of the Debtors have been
reduced to Cash or abandoned pursuant to section 554 of the
Bankruptcy Code in accordance with a Final Order of the Bankruptcy
Court; and (b) the date upon which all Disputed Claims have either
been Allowed or Disallowed.
1.44 Final Order means an order, judgment, ruling or other decree of the
Bankruptcy Court as entered on the legal docket of the Cases
maintained by the Clerk of the Bankruptcy Court that (a) has not
been reversed, stayed, modified or amended and as to which the time
to appeal, petition for certiorari, or seek reargument, rehearing or
review has expired and as to which no appeal, petition for
certiorari, reargument, rehearing or review is pending or as to
which any right to appeal, petition for certiorari, or seek
reargument, rehearing or review has been waived in writing, or (b)
if an appeal, petition for certiorari, reargument, rehearing or
review thereof has been denied, the time to take any further appeal,
seek certiorari or further reargument, rehearing or review has
expired; provided, that no order, judgment or decree shall fail to
be a Final Order because of the possibility that a motion pursuant
to Rule 60 of the Federal Rules of Civil Procedure may be filed with
respect to such order, judgment or decree.
1.45 General Unsecured Claim means any Claim that is not an
Administrative Claim, a Priority Claim, a Priority Tax Claim, a
Secured Claim, or an Intercompany Claim.
1.46 Governmental Unit means a governmental unit as such term is defined
in section 101(27) of the Bankruptcy Code.
11
1.47 Heller means Heller Financial, Inc., and any of its successors and
assigns.
1.48 Heller Disgorgement Amount means the amount required to be disgorged
by Heller in accordance with the Pre-Petition Credit Agreement, the
DIP Financing, the Mobile Division Sale Order, the Studio Division
Sale Order or any other Final Order, which amount will either be (i)
agreed upon by the Debtors, Heller and the Committee and approved by
Final Order, or (ii) fixed by a Final Order entered in accordance
with the Bankruptcy Code and the Bankruptcy Rules.
1.49 Holder means the beneficial owner or holder of any Claim or
Interest.
1.50 Interim Distribution Date means a date prior to the Final
Distribution Date, upon which date the Disbursing Agent distributes
Excess Available Cash in accordance with Section 6.4(C) of the Plan.
1.51 Intercompany Claims means the Claims of one Debtor against one of
the other Debtors.
1.52 Interest means an equity security, as such term is defined in
section 101(16) of the Bankruptcy Code.
1.53 Lien means, with respect to the assets of the Debtors, any mortgage,
lien, pledge, charge, security interest, encumbrance or other
legally cognizable security device of any kind affecting such
assets.
1.54 Liquidating Debtor means Unitel on and after the Effective Date.
1.55 Old Interests means, collectively, the Common Stock, the Unitel 53
Membership Interests, the Unitel 57 Membership Interests and the R
Squared Common Stock.
1.56 Operating Reserve means the reserve to be established and maintained
by the Liquidating Debtor in a segregated, interest-bearing account
into which the Liquidating Debtor will, from time to time, deposit
Cash to, among other things, fund the operating expenses of the
Liquidating Debtor, as set forth more fully in Section 5.4 of the
Plan.
1.57 Person means any individual, corporation, partnership, association,
joint stock company, joint venture, estate, trust, unincorporated
organization, Governmental Unit or any political subdivision
thereof, any other entity, or as otherwise defined in section
101(41) of the Bankruptcy Code.
1.58 Plan means this "Debtors' First Amended Joint Consolidated
Liquidating Plan of Reorganization," dated as of August 29, 2001,
including, without limitation, all exhibits, supplements, appendices
and schedules hereto, as it may be altered,
12
modified, supplemented or amended hereafter by the Debtors in
accordance with a Final Order, the Bankruptcy Code, the Bankruptcy
Rules and/or this Plan.
1.59 Plan Administrator means initially Mr. Joel Getzler, the Person
designated by the Debtors as the representative of the estates for
purposes of administering the Plan; provided, however, that in the
event the Plan Administrator resigns or is terminated, the Chairman
of the Official Committee shall select any subsequent Plan
Administrator.
1.60 Pre-Petition Credit Agreement means that certain Amended and
Restated Loan and Security Agreement dated as of December 12, 1995
among Unitel, as borrower, R Squared, as corporate guarantor, and
Heller, as agent and lender, including, without limitation, all
exhibits, supplements, appendices and schedules thereto, as it may
be altered, modified, supplemented or amended
1.61 Priority Claim means any Claim entitled to priority in payment
pursuant to section 507 of the Bankruptcy Code and that is not an
Administrative Claim, Priority Tax Claim or Secured Claim.
1.62 Priority Tax Claim means any Claim of a Governmental Unit for taxes,
interest and penalties entitled to priority pursuant to section
507(a)(8) of the Bankruptcy Code.
1.63 Professional Person means any Persons retained or to be compensated
pursuant to sections 326, 327, 328, 330, 331, 503(b) or 1103 of the
Bankruptcy Code.
1.64 Pro Rata means the proportion that the amount of any Claim bears to
the aggregate amount of such Claim and all other Claims in the same
Class entitled to distributions from the same source of Cash
including any Disputed Claims in such Class.
1.65 R Squared means R Squared, Inc., a California corporation and debtor
and debtor in possession in these Cases under chapter 11 of the
Bankruptcy Code.
1.66 R Squared Common Stock means the common stock of R Squared.
1.67 Schedules means, collectively, the respective schedules of assets
and liabilities, schedule of executory contracts and unexpired
leases, and statement of financial affairs Filed by each of the
Debtors with the Bankruptcy Court in accordance with section 521(1)
of the Bankruptcy Code, as the same may have been or may hereafter
be amended or supplemented from time to time in accordance with Rule
1009 of the Bankruptcy Rules.
1.68 Secured Claim means that portion of a Claim against the Debtors that
is (a) secured, in whole or in part, by a valid, perfected and
enforceable Lien,
13
whether oral or written, arising by contract, operation of law or
otherwise, that is not subject to avoidance under applicable
bankruptcy or non-bankruptcy law, in or upon any right, title or
interest of any of the Debtors in and to property, to the extent of
the value of the Holder's interest in such property, or (b) subject
to setoff under section 553 of the Bankruptcy Code, to the extent of
the amount subject to setoff, each as determined by section 506(a)
and 1111(b) of the Bankruptcy Code and the Bankruptcy Rules.
1.69 Senior Claim Reserve means the reserve of Cash to be established and
maintained by the Debtors on the Effective Date to make
distributions to Holders of Administrative Claims (including Fee
Claims (as estimated)), Priority Tax Claims, Priority Claims and
Secured Claims whose Claims, as of the Effective Date, are Disputed
Claims, if and when any such Claims become Allowed Claims, as set
forth more fully in Sections 6.7 and 6.8 of the Plan.
1.70 Senior Claims means, collectively, Administrative Claims, Priority
Tax Claims, Priority Claims and Secured Claims.
1.71 Settlement Stipulations means, collectively, (i) the Settlement
Stipulation between the Debtors and William M. Canter, as approved
by Consent Order dated August 11, 2000, (ii) the Settlement
Stipulation between the Debtors and Anthony and Hilary Parisi, as
approved by Consent Order dated June 5, 2000, (iii) the Settlement
Stipulation between the Debtors and Lisa Calderon and Gerard
Connelly, as approved by Consent Order dated December 5, 2000, and
(iv) Stipulation and Order between the Debtors and Agustina Enriquez
dated December 5, 2000
1.72 Subsidiary Interests means all authorized, issued and outstanding
Interests in Unitel 53, Unitel 57 and R Squared.
1.73 Substantive Consolidation Order means the order of the Bankruptcy
Court authorizing the substantive consolidation of the Cases as
provided in Article VII of the Plan.
1.74 Unitel means Unitel Video, Inc., a Delaware corporation and debtor
and debtor in possession in these Cases under chapter 11 of the
Bankruptcy Code.
1.75 Unitel 53 means Unitel 53 LLC, a New York limited liability company
and debtor and debtor in possession in these Cases under chapter 11
of the Bankruptcy Code.
1.76 Unitel 53 Membership Interests means the membership interests of
Unitel 53.
1.77 Unitel 57 means Unitel 57 LLC, a New York limited liability company
and debtor and debtor in possession in these Cases under chapter 11
of the Bankruptcy Code.
14
1.78 Unitel 57 Membership Interests means the membership interests of
Unitel 57.
2
LIQUIDATION OF THE DEBTORS
This Plan provides for the liquidation of all of the Debtors' Assets and
the distribution of the net proceeds therefrom to the Holders of Allowed Claims
in accordance with applicable bankruptcy law and this Plan.
3
CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS
A Claim shall be deemed classified in a particular Class for all purposes,
including voting, confirmation and distribution only to the extent that such
Claim qualifies within the description of such Class and shall be deemed
classified in a different Class to the extent that any remainder of such Claim
qualifies within the description of such different Class. Unless otherwise
provided, to the extent a Claim qualifies for inclusion in a more specifically
defined Class and a more generally defined Class, it shall be included in the
more specifically defined Class. A Claim or Interest is classified in a
particular Class only to the extent that the Claim or Interest is an Allowed
Claim or Interest in that Class and has not been paid, released or otherwise
satisfied prior to the Effective Date.
3.1 Class 1 - Administrative Claims. Class 1 consists of all
Administrative Claims.
3.2 Class 2 - Priority Claims. Class 2 consists of all Priority Claims.
3.3 Class 3 - Priority Tax Claims. Class 3 consists of all Priority Tax
Claims.
3.4 Class 4 - Miscellaneous Secured Claims. Class 4 consists of all
Secured Claims. 1.1
3.5 Class 5 - General Unsecured Claims. Class 5 consists of all General
Unsecured Claims.
3.6 Class 6 - Common Stock. Class 6 consists of the Interests of the
Holders of the Common Stock.
3.7 Class 7 - Subsidiary Interests. Class 7 consists of the Interests of
the Holder of Unitel 53 Membership Interests, Unitel 57 Membership
Interests and R Squared Common Stock.
15
4
TREATMENT OF CLASSES OF
CLAIMS AND INTERESTS
The treatment of and consideration to be received by a Holder of an
Allowed Claim or Allowed Interest pursuant to this Article IV shall be in full
and complete satisfaction, settlement, release and discharge of such Holder's
respective Claim against or Interest in each and all of the Debtors except as
otherwise provided in this Plan or the Confirmation Order.
4.1 Administrative Claims (Class 1).
Class 1 Claims are not impaired.
Each Holder of a Class 1 Allowed Claim shall be paid Cash: (a) in an
amount equal to the Allowed Amount of such Claim, without interest, on or as
soon as practicable after the later of (i) the Effective Date, or (ii) the third
Business Day following the date on which such Claim becomes an Allowed Claim; or
(b) in such amount, at such other date and upon such other terms as may be
contained in a Final Order of the Bankruptcy Court or agreed upon, after notice
to parties in interest, by the Debtors or the Liquidating Debtor, as the case
may be, and the Holder of such Allowed Claim.
4.2 Priority Claims (Class 2).
Class 2 Claims are not impaired.
Each Holder of a Class 2 Allowed Claim shall be paid Cash: (a) in an
amount equal to the Allowed Amount of such Claim, without interest, on or as
soon as practicable after the later of (i) the Effective Date, or (ii) the third
Business Day following the date on which such Claim becomes an Allowed Claim; or
(b) in such amount, at such other date and upon such other terms as may be
contained in a Final Order of the Bankruptcy Court or agreed upon, after notice
to parties in interest, by the Debtors or the Liquidating Debtor, as the case
may be, and the Holder of such Allowed Claim.
4.3 Priority Tax Claims (Class 3).
Class 3 Claims are not impaired.
Each Holder of a Class 3 Allowed Claim shall be paid Cash: (a) in an
amount equal to the Allowed Amount of such Claim, without interest subsequent to
the Filing Date, on or as soon as practicable after the later of (i) the
Effective Date and (ii) the third Business Day following the date on which such
Claim becomes an Allowed Claim; or (b) in such amount, at such other date and
upon such other terms as may be contained in a Final Order of the Bankruptcy
Court or agreed upon, after notice to parties in interest, by the Debtors or the
Liquidating Debtor, as the case may be, and the Holder of such Allowed Claim.
16
4.4 Miscellaneous Secured Claims (Class 4).
Class 4 Claims are impaired.
Each Holder of a Class 4 Allowed Claim in full satisfaction, settlement,
release and discharge thereof, shall receive or shall have received, in the sole
discretion of the Debtors, on or as soon as practicable after the later of (a)
the Effective Date and (b) the third Business Day following the date on which
such Claim becomes an Allowed Secured Claim, (i) Cash in an amount equal to such
Allowed Secured Claim (including any interest, charges and other amounts which
such Holder may be entitled to as a Secured Claim under the Bankruptcy Code and
applicable law), (ii) the property securing such Allowed Secured Claim, or (iii)
such amount, at such other date and upon such other terms as may be contained in
a Final Order of the Bankruptcy Court or agreed upon, after notice to parties in
interest, by the Debtors or the Liquidating Debtor, as the case may be, and the
Holder of such Allowed Claim.
4.5 General Unsecured Claims (Class 5).
Class 5 Claims are impaired.
Unless otherwise agreed by the Debtors or the Liquidating Debtor, as the
case may be, and the Holder of a Class 5 Allowed Claim: (a) each Holder of a
Class 5 Allowed Claim shall receive, on or as soon as practicable after the
later of: (1) the Effective Date, and (2) the third Business Day following the
date on which such Claim becomes an Allowed Claim, such Holder's Pro Rata share
of Available Cash; (b) each Holder of a Class 5 Allowed Claim shall receive on
any Interim Distribution Date such Holder's Pro Rata share of distributed Excess
Available Cash; and (c) each Holder of a Class 5 Allowed Claim shall receive on
the Final Distribution Date or as soon as practicable thereafter, such Holder's
Pro Rata share of Excess Available Cash.
Heller shall have a General Unsecured Claim in the amount of the Heller
Disgorgement Amount.
4.6 Common Stock (Class 6).
Class 6 Interests are impaired.
All Class 6 Interests shall be deemed canceled as of the Effective Date
and the Holders of such Interests shall not receive nor retain any property
under the Plan. Holders of Class 6 Interests shall be deemed to have rejected
the Plan.
17
Section 4.7 Subsidiary Interests (Class 7).
Class 7 Interests are impaired.
All Class 7 Interests shall be deemed canceled as of the Effective Date
and the Holder of such Interests shall not receive nor retain any property under
the Plan. The Holder of Class 7 Interests shall be deemed to have rejected the
Plan.
5
MEANS FOR IMPLEMENTATION AND EXECUTION OF THIS PLAN
5.1 Corporate Governance. On the Effective Date and automatically and
without further action, (i) each existing member of the board of
directors of each of the Debtors will resign or be terminated by the
Plan Administrator and (ii) the Plan Administrator shall be deemed
the sole shareholder, officer and director of each of the Debtors.
The Plan will be administered by the Plan Administrator and all
actions taken thereunder in the name of the Debtors shall be taken
through the Plan Administrator.
5.2 Investments. All Cash held by the Liquidating Debtor, in any
accounts, shall be invested in accordance with section 345 of the
Bankruptcy Code or as otherwise permitted by a Final Order of the
Bankruptcy Court.
5.3 Indemnification. The Liquidating Debtor shall indemnify and hold
harmless the Disbursing Agent, the Plan Administrator and any full
or part-time employee of the Liquidating Debtor, and their agents
and attorneys, from and against and in respect to any and all
liabilities, losses, damages, claims, costs and expenses, including
but not limited to attorneys' fees arising out of or due to their
actions or omissions, or consequences of such actions or omissions,
other than as a result of their gross negligence or willful
misconduct, with respect to the Liquidating Debtor or the
implementation or administration of the Plan.
5.4 Operating Reserve.
1. Creation of Operating Reserve. On or prior to the Effective
Date, the Liquidating Debtor shall establish a segregated,
interest-bearing account, in an amount to be determined by the
Liquidating Debtor and the Committee, to create and maintain
the Operating Reserve. The monies in the Operating Reserve
shall be used, inter alia, to fund all fees, costs, and
expenses incurred in administering the Plan and winding down
the Liquidating Debtor's business affairs, as determined by
the Plan Administrator after consultation with the Committee.
18
2. Maintenance of Operating Reserve. The Liquidating Debtor shall
maintain sufficient Cash in the Operating Reserve as is
necessary to ensure the continued funding of the activities
described in Section 5.4(A) of the Plan (including the payment
of the post-Effective Date fees of the Plan Administrator,
counsel for the Liquidating Debtor and counsel for the
Committee in accordance with Section 12.9 of the Plan).
3. Reporting. The Liquidating Debtor shall provide a monthly
report to the Committee of all expenditures made from the
Operating Reserve.
4. Supplementing of Operating Reserve. As may be determined by
the Liquidating Debtor and the Committee, the Operating
Reserve may be supplemented from time to time from any
proceeds of the liquidation of the Assets of the Liquidating
Debtor or from Excess Available Cash.
5. Excess Operating Reserve Cash. After the completion by the
Liquidating Debtor of all tasks remaining to liquidate fully
its Assets and distribute the proceeds therefrom in accordance
with this Plan, including the payment of all charges and taxes
related thereto, any amounts remaining in the Operating
Reserve on the Final Distribution Date (less an amount of Cash
necessary and sufficient to complete the winddown and
dissolution of the Liquidating Debtor, which amount shall be
agreed upon by the Liquidating Debtor and the Committee) shall
constitute Excess Operating Reserve Cash, to be distributed in
accordance with this Plan.
5.5 Distribution of Available Cash. On the Effective Date, the
Disbursing Agent shall distribute Available Cash to the Holders of
Class 5 Allowed Claims in accordance with Sections 4.6 and 6.4 of
the Plan.
5.6 Preservation of Debtors' Causes of Actions. Except as otherwise
provided in the Plan, including, but not limited to Section 11.3 of
the Plan, or the Confirmation Order, or in any contract, instrument,
release, or other agreement entered into in connection with the
Plan, the Liquidating Debtor will retain and may enforce all Causes
of Action, including the Avoidance Actions. All proceeds of Causes
of Action shall constitute Available Cash or Excess Available Cash,
as the case may be.
19
5.7 Professional Fees and Expenses. Each Person retained or requesting
compensation in the Cases pursuant to sections 327, 328, 330, 331 or
503(b) of the Bankruptcy Code for services rendered through the
Effective Date, shall file an application for allowance of final
compensation and reimbursement of expenses in the Cases on or before
the sixtieth (60th) day after the Confirmation Date. On or before
the Confirmation Date, each such Person shall also provide the
Debtors an estimate of the amount of compensation and expenses for
which it intends to seek allowance. Notwithstanding anything to the
contrary continued herein, any Person requesting compensation in the
Cases pursuant to section 503(b)(3) of the Bankruptcy Code shall
file an application for allowance of final compensation and
reimbursement of expenses in the Cases on or before the tenth (10th)
day after the Confirmation Date. Objections to each final fee
application shall be filed on or before the seventy-fifth (75th) day
after the Confirmation Date.
5.8 Dissolution of Debtors. On or as soon as practicable after the
Effective Date, the Liquidating Debtor will effect the dissolution
of Unitel 53, Unitel 57 and R Squared in accordance with applicable
non-bankruptcy law. On or as soon as practicable after the Final
Distribution Date, the Liquidating Debtor will effectuate the
dissolution of Unitel in accordance with applicable non-bankruptcy
law.
6
CLAIMS; DISTRIBUTIONS
6.1 Objections to Claims. An objection to a Claim shall be in writing
and may be Filed by the Liquidating Debtor or any other appropriate
party in interest, at any time on or before the Claims Objection Bar
Date. The objecting party shall serve a copy of such objection upon
the Holder of the Claim to which it pertains.
6.2 Amendments to Claims. A Claim may be amended prior to the
Confirmation Date only as agreed upon by the Debtors and the Holder
of such Claim, or as otherwise permitted by the Bankruptcy Court,
the Bankruptcy Rules or applicable law. After the Confirmation Date,
a Claim may not be Filed or amended without the authorization of the
Bankruptcy Court and, even with such Bankruptcy Court authorization,
may be amended by the Holder of such Claim solely to decrease, but
not to increase, the amount or priority. Any new or amended Claim
Filed after the Confirmation Date shall be deemed Disallowed in full
and expunged without any action by the Debtors or Liquidating
Debtor, unless the Holder has obtained upon notice to the Plan
Administrator prior Bankruptcy Court authorization for the Filing.
20
6.3 Funding of the Plan. The Cash distributions to be made pursuant to
the Plan and the Cash necessary to fund the payment in full of
Allowed Senior Claims, the Senior Claim Reserve, the Operating
Reserve, the distribution of Available Cash and the Disputed Claim
Reserve will be available from funds currently on hand and available
as of the Effective Date, including, without limitation, the Heller
Disgorgement Amount, and from funds realized in connection with the
liquidation of the non-Cash Assets of the Debtors.
6.4 Distributions of Cash.
1. Distribution to Senior Claims. On the Effective Date, or as
soon thereafter as practicable, the Disbursing Agent shall
make the Cash distributions required to be paid to the Holders
of Allowed Class 1 Claims (except with respect to Fee Claims),
Class 2 Claims, Class 3 Claims, and Class 4 Claims pursuant to
Article IV of the Plan.
2. Initial Distribution to Allowed Class 5 Claims. On the
Effective Date, or as soon thereafter as practicable, the
Disbursing Agent shall distribute the Available Cash to the
Holders of Allowed Class 5 Claims in accordance with Section
4.5 of the Plan.
3. Interim Distributions to Allowed Class 5 Claims. Prior to the
Final Distribution Date, the Plan Administrator may in its
discretion (after consultation with the Committee) direct the
Disbursing Agent to distribute, to the extent practicable, all
or some portion of then-existing Excess Available Cash to
Holders of Allowed Class 5 Claims in accordance with Section
4.5 of the Plan.
4. Final Distribution to Allowed Class 5 Claims. On the Final
Distribution Date, the Disbursing Agent shall make the Final
Distribution to Holders of Allowed Class 5 Claims in
accordance with Section 4.5 of the Plan
5. Fee Claims. In the case of Fee Claims, the Disbursing Agent
shall make payment of Allowed Fee Claims to each Holder
thereof as and when such Claims become due and payable by
Final Order authorizing and approving the payment thereof.
Notwithstanding the foregoing, the Court's Administrative
Order, Pursuant to Sections 105(a) and 331 of the Bankruptcy
Code, Establishing Revised Procedures for Interim Compensation
and Reimbursement of Expenses of Professionals dated December
27, 2000
21
shall remain in full force and effect, and the Debtors or the
Liquidating Debtor, as the case may be, shall comply with the
terms thereof.
6.5 No Distributions to Holders of Disputed Claims. Notwithstanding any
other provision of the Plan to the contrary, no Cash or other
property shall be distributed under the Plan on account of any
Disputed Claim.
6.6 Establishment of Disputed Claims Reserve. On or prior to the
Effective Date, the Liquidating Debtor shall establish a segregated,
interest-bearing account, and shall deposit therein Cash in an
aggregate amount sufficient to pay to each Holder of a Class 5
Disputed Claim the amount such Holder would have been entitled to
receive under the Plan if its Disputed Claim were an Allowed Claim
on the Effective Date, unless the Court, after notice and hearing,
authorizes the Liquidating Debtor to reserve a lesser amount on
account of such Disputed Claim in which case the Liquidating Debtor
shall reserve such lesser amount on account of such Disputed Claim.
6.7 Establishment of Senior Claims Reserve. On or prior to the Effective
Date, the Liquidating Debtor shall establish a segregated,
interest-bearing account, and shall deposit therein Cash in an
aggregate amount sufficient to pay to each Holder of an
Administrative Claim, Priority Tax Claim, Priority Claim, and
Miscellaneous Secured Claim whose Claim, as of the Effective Date,
are Disputed Claims, have not been Allowed, or payment of which has
not been authorized by the Bankruptcy Court, the amount such Holder
would have been entitled to receive under the Plan if its Claim were
an Allowed Claim on the Effective Date, unless the Court, after
notice and hearing, authorizes the Liquidating Debtor to reserve a
lesser amount on account of such Disputed Claim in which case the
Liquidating Debtor shall reserve such lesser amount on account of
such Disputed Claim.
6.8 Subsequent Allowance or Disallowance of Disputed Claims/Cash
Distributions. If, on or after the initial distribution date, any
Disputed Claim becomes an Allowed Claim, the Liquidating Debtor
shall in accordance with Sections 6.6 and 6.7 of the Plan, as
applicable, distribute from the Disputed Claims Reserve or the
Senior Claims Reserve, as the case may be, to the Holder of such
Allowed Claim the amount of Cash that such Holder would have been
entitled to receive under the Plan if such Claim had been an Allowed
Claim on the Effective Date in the amount in which it has become an
Allowed Claim, together with the actual amount of any interest
earned on such Allowed Claim since the Effective Date. In the event
that such Allowed Claim is less than the amount of the Disputed
Claim, the difference between the amount reserved on behalf of such
Disputed Claim and the amount distributed on behalf of such Allowed
Claim shall constitute Excess Disputed Claims Reserve Cash or Excess
Senior Claim Reserve Cash, as the case may be. If any Disputed Claim
is Disallowed by Final Order of the Bankruptcy Court, the amount
reserved in the Disputed Claims Reserve or Senior Claim
22
Reserve, as the case may be, with respect to the Disallowed Claim,
if any, including interest actually earned on such Disallowed Claim,
shall constitute Excess Disputed Claims Reserve Cash or Excess
Senior Claim Reserve Cash, as the case may be.
6.9 Setoffs. The Liquidating Debtor may, but shall not be required to,
set off against any Claim or the distributions to be made pursuant
to the Plan in respect of such Claim, any claims of any nature
whatsoever the Liquidating Debtor has against the Holder of such
Claim, but neither the failure to do so nor the allowance of any
Claim under the Plan shall constitute a waiver or release by the
Liquidating Debtor of any such claim the Liquidating Debtor may have
against such Holder.
6.10 Delivery of Distributions. Distributions and deliveries to Holders
of Allowed Claims shall be made at the address of each such Holder
as set forth on the proofs of Claim filed by such Holders (or at the
last known addresses of such Holders if no proof of Claim is filed
or if the Liquidating Debtor has been notified in writing of a
change of address), except as otherwise provided in the Plan. If any
such Holder's distribution is returned as undeliverable or is
unclaimed, no further distributions to such Holder shall be made
unless and until the Liquidating Debtor is notified in writing by
such Holder of such Holder's then current address, at which time any
missed distributions shall be made to such Holder without interest.
Amounts in respect of undeliverable or unclaimed distributions shall
be returned to the Disbursing Agent until such distributions are
claimed. All claims for undeliverable or unclaimed distributions
shall be made within six (6) months of the date of such
distribution. Any Cash amounts in respect of undeliverable or
unclaimed distributions which remain unclaimed within such six
(6)-month period shall be forfeited to the Liquidating Debtor and
shall constitute Excess Available Cash.
6.11 Resolution of Disputed Claims. The Liquidating Debtor may resolve
any Disputed Claim upon terms and conditions otherwise consistent
with the Plan as the Liquidating Debtor and the Holder of the
Disputed Claim shall agree; provided that (a) in the event the
resolution involves an aggregate payment to such Holder and/or
affiliates of such Holder of less than $50,000 on account of one or
more Disputed Claims, the Debtors shall provide no less than five
(5) Business Days notice of the terms of such resolution to counsel
for the Committee, and (b) in the event the resolution involves an
aggregate payment to such Holder and/or affiliates of such Holder
equal or greater than $50,000 on account of one or more Disputed
Claims, such resolution must either be approved by the Committee or
pursuant to a Final Order.
23
7
SUBSTANTIVE CONSOLIDATION
7.1 The Plan contemplates and is predicated upon entry of the
Substantive Consolidation Order which will effect the substantive
consolidation of the Debtors into a single entity solely for the
purposes of all actions associated with Confirmation and
consummation of the Plan. Pursuant to the Substantive Consolidation
Order, on the Confirmation Date, but subject to the occurrence of
the Effective Date: (i) all Intercompany Claims by and between the
Debtors shall be eliminated; (ii) all Assets and liabilities of the
Debtors shall be pooled or treated as though they were merged; (iii)
all prepetition cross-corporate guarantees of the Debtors shall be
eliminated; (iv) any obligation of any Debtor and all guarantees
thereof executed by one or more of the Debtors shall be deemed to be
one obligation of the consolidated Debtors; (v) any Claims Filed or
to be Filed in connection with any such obligation and such
guarantees shall be deemed one Claim against the consolidated
Debtors; and (vi) each and every Claim Filed in the Cases shall be
deemed a single obligation of each of the Debtors under the Plan on
and after the Confirmation Date. On the Confirmation Date, and in
accordance with the terms of the Plan and the consolidation of the
Assets and liabilities of the Debtors, all Claims based upon
guarantees of collection, payment or performance made by the Debtors
as to the obligations of another Debtor shall be discharged,
released and of no further force and effect.
8
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
8.1 Rejection. On the Confirmation Date, all executory contracts and
unexpired leases not previously assumed or rejected by the Debtors,
or the subject of a motion to assume or assume and assign such
contract or lease pending as of the Confirmation Hearing, shall be
automatically rejected by the Debtors without further notice or
order, in accordance with the provisions of sections 365 and 1123 of
the Bankruptcy Code.
8.2 Claims for Rejection Damages. Each Person who is a party to an
executory contract or unexpired lease not previously assumed or
rejected by the Debtors and rejected pursuant to Section 8.1 hereof
shall be entitled to File, not later than fifteen (15) days after
notice of entry of the Confirmation Order, a proof of claim for
damages alleged to arise from the rejection of such executory
contract or unexpired lease, or be forever barred. A copy of any
such proof of Claim shall be Filed with the Bankruptcy Court and
served upon the Liquidating Debtor in
24
accordance with the notice provision of Section 12.1 hereof, not
later than fifteen (15) days after notice of entry of the
Confirmation Order. If the Claim becomes an Allowed Claim, then such
Claim shall be classified as a General Unsecured Claim and
distributions shall be made thereon on the next occurring
distribution date in accordance with the provisions of the Plan.
9
RETENTION OF JURISDICTION
The Bankruptcy Court shall retain jurisdiction over all matters arising
out of or relating to the Cases, including the following matters:
(1) allowance or classification of Claims and determination of any
objections thereto;
(2) interpretation and enforcement of the Plan and issuance of
such orders as may be necessary for the implementation,
execution and consummation of the Plan;
(3) determination of applications for allowance of compensation or
reimbursement of expenses for Professional Persons;
(4) determination of requests for payment of Administrative
Claims;
(5) determination of disputes regarding the implementation of the
Plan;
(6) determination of applications pending on the Confirmation Date
for the rejection, assumption or assignment of executory
contracts or unexpired leases and the allowance of any Claim
allegedly resulting therefrom;
(7) determination of applications, motions, adversary proceedings,
contested matters and other litigated matters that may be
pending in the Bankruptcy Court on or initiated after the
Confirmation Date;
(8) enforcement of all orders, judgments, injunctions, and rulings
entered in connection with the Cases;
(9) determination of such other matters and for such other
purposes as the Confirmation Order may provide;
(10) modifications to the Plan pursuant to section 1127 of the
Bankruptcy Code, or to remedy any apparent nonmaterial defect
in or omission from the Plan, or to reconcile any nonmaterial
inconsistency in the Plan so as to carry out its intent and
purposes;
25
(12) determination of matters under sections 346, 505 and 1146 of
the Bankruptcy Code with respect to any tax, fine, penalty or
addition to tax or refund, including determinations regarding
any tax liability arising in connection with the liquidation
of Assets pursuant to the Plan (including with respect to any
request pursuant to section 505(b) of the Bankruptcy Code for
such period);
(13) entry of an order establishing a bar date in respect of any
Claims for which a Bar Date or Administrative Bar Date has not
been established as of the Confirmation Date;
(14) determination of compromises and settlements of Claims against
the Debtors or their estates;
(15) determination of the Heller Disgorgement Amount;
(16) determination of all issues and disputes regarding title to
the Assets of the Debtors, the Liquidating Debtor, or the
Debtors' estates; and
(17) entry of an order or final decree closing the Cases.
10
CONDITIONS PRECEDENT TO CONFIRMATION AND EFFECTIVENESS
10.1 Conditions Precedent to Confirmation. Confirmation of the Plan shall
not occur unless and until the following condition has occurred or
has been waived in accordance with the terms of the Plan:
1. The Bankruptcy Court shall have entered the
Substantive Consolidation Order.
2. The Bankruptcy Court shall have entered the
Confirmation Order.
10.2 Conditions Precedent to the Effective Date. The Effective Date of
the Plan shall not occur unless and until each of the following
conditions has occurred or has been waived in accordance with the
terms of the Plan:
1. The Substantive Consolidation Order shall have
become a Final Order.
2. The Confirmation Order shall have become a Final
Order.
26
10.3 Waiver of Conditions to Confirmation of the Plan and Effective Date.
Any condition to confirmation of the Plan or the Effective Date
contained in this Article X may be waived, in whole or in part,
after the provision of three (3) business days' written notice to
the Committee by the Debtors, unless the Court orders otherwise.
11
EFFECTS OF CONFIRMATION
11.1 Binding Effect. Except as otherwise provided in the Plan or the
Confirmation Order, the provisions of the Plan shall bind the
Debtors and any Holder of a Claim or Interest, whether or not such
Holder of a Claim or Interest is impaired under the Plan and whether
or not such Holder of a Claim or Interest accepted the Plan.
11.2 Vesting of Property. Except as otherwise provided in the Plan or the
Confirmation Order, on the Effective Date, all Assets of the estate
of each Debtor shall vest in and be retained by the Liquidating
Debtor subject to the provisions of the Plan and the Confirmation
Order. As of the Effective Date, all Assets retained by the
Liquidating Debtor pursuant hereto shall be free and clear of all
Liens, Claims and Interests of Holders, except as otherwise provided
in the Plan and the Confirmation Order.
11.3 Releases.
1. On the Effective Date, the Debtors release unconditionally,
and hereby are deemed to release unconditionally, (i) each of
the Debtors' officers, directors, shareholders, employees,
consultants, attorneys, accountants and other representatives
and (ii) the Committee and, solely in their capacity as
members or representatives of the Committee, each member,
consultant, attorney, accountant or other representative of
the Committee (the Persons specified in clauses (i) and (ii)
are referred to collectively as the "Releasees"), from any and
all claims, obligations, suits, judgments, damages, rights,
causes of action and liabilities whatsoever, whether known or
unknown, foreseen or unforeseen, existing or hereafter
arising, in law, equity or otherwise, based in whole or in
part upon any act or omission, transaction, event or other
occurrence taking place on or between the Filing Date and the
Effective Date in any way relating to the Releasees, the
Debtors, the Cases
27
or the Plan (other with respect to claims for gross negligence
or willful misconduct).
2. On the Effective Date, all Holders of Claims and Interests
shall be deemed to have unconditionally released the
Releasees, from any and all rights, claims, causes of action,
obligations, suits, judgments, damages and liabilities
whatsoever which any such Holder may be entitled to assert,
whether known or unknown, foreseen or unforeseen, existing or
hereafter arising, in law, equity or otherwise, based in whole
or in part upon any act or omission, transaction, event or
other occurrence taking place on or between the Filing Date
and the Effective Date in any way relating to the Debtors, the
Cases or the Plan (other with respect to claims for gross
negligence or willful misconduct).
3. Notwithstanding anything to the contrary contained herein, the
Plan shall not affect the terms of the Settlement Stipulations
and the non-Debtor parties to the Settlement Stipulations
shall have a continuing right to seek payment consistent with
the terms of the Settlement Stipulations.
11.4 Injunction. Effective on the Effective Date, all Holders of Claims
and Interests shall be enjoined from taking any of the following
actions against or affecting the Debtors and any of their present
and former officers, directors, shareholders, employees, agents and
representatives and their successors and assigns, the Assets of the
Debtors and any direct or indirect transferee or successor in
interest to any of the Debtors or the Assets of any such transferee
or successor and any other Releasee with respect to seeking payment
or satisfaction of such Claims or Interests (other than actions
brought to enforce any rights or obligations under this Plan or
appeals, if any, from the Confirmation Order): (i) commencing,
conducting or continuing in any manner, directly or indirectly, any
suit, action or other proceeding of any kind against the Debtors and
any of their present and former officers, directors, shareholders,
employees, agents and representatives and their successors and
assigns, the Assets of the Debtors and any direct or indirect
transferee or successor in interest to any of the Debtors or the
Assets of any such transferee or successor other than as
contemplated by this Plan
28
(including, without limitation, Section 11.3 of the Plan); (ii)
enforcing, levying, attaching, collecting or otherwise recovering by
any manner or means, whether directly or indirectly, any judgment,
award, decree or order against the Debtors and any of their present
and former officers, directors, shareholders, employees, agents and
representatives and their successors and assigns, the Assets of the
Debtors and any direct or indirect transferee or successor in
interest to any of the Debtors or the Assets of any such transferee
or successor other than as contemplated by this Plan (including,
without limitation, Section 11.3 of the Plan); (iii) creating,
perfecting or otherwise enforcing in any manner, directly or
indirectly, any encumbrance of any kind against the Debtors and any
of their present and former officers, directors, shareholders,
employees, agents and representatives and their successors and
assigns, the Assets of the Debtors and any direct or indirect
transferee or successor in interest to any of the Debtors or the
Assets of any such transferee or successor other than as
contemplated by this Plan (including, without limitation, Section
11.3 of the Plan); (iv) asserting any set-off or right of
subrogation of any kind, directly or indirectly, against any
obligation due the Debtors and any of their present and former
directors, officers, shareholders, employees, agents and
representatives and their successors and assigns, the Assets of the
Debtors and any direct or indirect transferee or successor in
interest to any of the Debtors or the Assets of any such transferee
or successor other than as contemplated by this Plan (including,
without limitation, Section 11.3 of the Plan); and (v) proceeding in
any manner in any place whatsoever that does not conform to or
comply with the provisions of this Plan (including, without
limitation, Section 11.3 of the Plan).
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MISCELLANEOUS PROVISIONS
12.1 Notices.
1. Any notice required or permitted under the Plan shall be in
writing and served either by: (1) certified mail, return
receipt requested, postage prepaid; (2) hand delivery; or (3)
reputable overnight delivery service, freight prepaid,
addressed to the following entities:
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UNITEL VIDEO, INC.
c/o KAYE SCHOLER LLP
Attorneys for Unitel Video, Inc.
425 Park Avenue
New York, New York 10022
(212) 836-8000
Attn: Andrew A. Kress, Esq.
Benjamin Mintz, Esq.
UNITEL VIDEO, INC.
c/o GETZLER & CO., INC.
Plan Administrator
295 Madison Avenue
New York, New York 10017
(212) 697-2400
Attn: Mr. Joel Getzler
OFFICIAL COMMITTEE OF UNSECURED CREDITORS
c/o ROSENMAN & COLIN LLP
575 Madison Avenue
New York, New York 10022
(212) 940-8800
Attn: Jeff J. Friedman, Esq.
2. Notices to Holders of Claim or Interest shall be
sent to the address set forth in such Holder's
proof of Claim or proof of Interest or, if none
was filed, at the address set forth in the
Schedules.
12.2 Section Headings. The headings of the Articles, Sections and
Subsections of the Plan are inserted for convenience only and shall
not affect the interpretation thereof.
12.3 Construction. The rules of construction set forth in section 102 of
the Bankruptcy Code shall apply to the construction of the Plan.
12.4 Amendments. The Debtors or the Liquidating Debtor, as the case may
be, may alter, amend, modify, withdraw or supplement the Plan at any
time, subject, however, to section 1127 of the Bankruptcy Code or as
otherwise permitted by law, without additional disclosure pursuant
to Section 1125 of the Bankruptcy Code, except as the Court may
otherwise direct.
12.5 Effect of Withdrawal or Revocation. If the Debtors withdraw or
revoke the Plan prior to the Confirmation Date, or if the
Confirmation Date or the Effective Date does not occur, 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
Claim by or against the Debtors or any other Person or to prejudice
in any matter the rights of the Debtors or any other Person in any
further proceedings involving the Debtors.
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12.6 No Interest. Except as expressly provided in the Plan, or allowed by
Final Order of the Bankruptcy Court, no interest, penalty or late
charge is to be allowed on any Claim or Interest on or subsequent to
the Filing Date.
12.7 Severability. Except as to terms which would frustrate the overall
purpose of this Plan, should any provision in this Plan be
determined to be unenforceable, such determination shall in no way
limit or affect the enforceability and operative effect of any or
all other provisions of this Plan.
12.8 Governing Law. Unless a rule of law or procedure is supplied by
federal law (including the Bankruptcy Code and Bankruptcy Rules),
the law of the State of New York shall govern the construction of
the Plan and any agreements, documents and instruments executed in
connection with the Plan.
12.9 Post-Effective Date Professional Fees. The Plan Administrator,
counsel for the Liquidating Debtor and counsel for the Committee
shall each be entitled to reasonable and necessary compensation for
services rendered and reimbursement for reasonable and necessary
out-of-pocket disbursements incurred with respect to the
implementation and consummation of the Plan subsequent to the
Effective Date. Each Person seeking post-Effective Date Compensation
and reimbursement of expenses shall provide, on a monthly basis, a
detailed invoice of fees and expenses for which it seeks payment to
the Plan Administrator, counsel for the Liquidating Debtor and
counsel for the Committee. Unless the Court orders otherwise,
following the fifteenth (15th) day after receipt of a monthly
invoice, the Liquidating Debtor shall pay such Person the fees and
expenses requested in such invoice.
12.10 Dissolution of Committee. Upon the Liquidating Debtors' making of
the Final Distribution, the Committee shall dissolve and be
terminated.
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12.11 Successors and Assigns. The rights, benefits and obligations of any
Person named or referred to in the Plan will be binding upon, and
will inure to the benefit of, the heirs, executors, administrators,
representatives, successors or assigns of such Person.
12.12 Transactions on Business Days. If any date on which a transaction
may occur under the Plan shall occur on a day that is not a Business
Day, the transaction contemplated by the Plan to occur on such day
shall instead occur on the next succeeding Business Day.
UNITEL VIDEO, INC., UNITEL 53 LLC, UNITEL 57
LLC, and R SQUARED, INC.
By: /s/ Joel Getzler
-----------------------------------------
Joel Getzler, Getzler & Co., Inc.
Management Consultant
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